WARNING

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

( b ) on application made by the victim, 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.

Ontario Court of Justice

Date: 2021 03 29 Court File No.: Toronto 18-5503445

Between:

HER MAJESTY THE QUEEN

— AND —

LEONARD ROBERTS

Before: Justice Peter N. Fraser

Heard on: January 25-29, 2021 & March 5, 2021 Reasons for Judgment released on: March 29, 2021

Counsel: T. Mack, for the Crown C. Barbisan and M. Granic, for the defendant Leonard Roberts

Fraser J.:

[1] Leonard Roberts stands charged with sexual assault against R.L. arising out of an incident on November 30, 2018. The two of them met that night through the complainant’s sister and went out to a bar in Toronto. The sexual assault is alleged to have occurred in the alley behind the bar while R.L. was highly intoxicated and moments before she passed out.

[2] The complaint testified that Mr. Roberts put his hand down her pants and touched her vagina without her consent. Mr. Roberts testified in his own defence and denied the sexual touching. The main issues at trial were the credibility and reliability of the two main witnesses, whether the accused’s alleged lies to police amounted to circumstantial evidence of guilt, and whether the complainant’s spontaneous utterances to paramedics could be used for narrative as circumstantial evidence.

Legal Principles

[3] Mr. Roberts is presumed innocent. The Crown must prove the essential elements of the offence beyond a reasonable doubt. The burden of proof rests squarely on the Crown throughout the trial and never shifts to the defence.

[4] A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence: R. v. Lifchus, [1997] 3 S.C.R. 320. Even if I believe the accused is probably guilty or likely guilty, that is not sufficient to ground a conviction.

[5] Where the case turns on the credibility of the complainant and the accused, the trier of fact does not simply choose between the two competing narratives. The issue is not which version of events is preferred, but whether the Crown has proven the case beyond a reasonable doubt. In assessing the evidence in this case, I must apply the principles and analysis set out by the Supreme Court of Canada in R. v. W.D., [1991] 1 S.C.R. 742:

• If I believe the evidence of the accused, I must acquit.
• If I do not believe the evidence of the accused, but I am left in a reasonable doubt by it, I must acquit.
• Even if I am not left in doubt by the evidence of the accused, I must ask whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt of the accused’s guilt.

Evidence of the Complainant

[6] On November 29, 2018, R.L. came to Toronto from Thunder Bay to celebrate her birthday with her younger sister C.L. The complainant was staying at C.L.’s place and the two had plans to go out that night with C.L.’s friend Maxroy. Maxroy arrived some time after 11:00 p.m. in the company of the accused, who was introduced to the complainant as Rozo. There was no dispute that Rozo was the accused before the court. About half an hour later, the four people went to the Lion’s Den bar in Maxroy’s car. The complainant had consumed three glasses of wine before leaving.

[7] The group arrived at the Lion’s Den and parked in the alley behind the bar. They can be seen on security video footage entering via the back door at 12:06 a.m. on what was now the morning of Nov. 30, 2018. Video footage from inside the bar shows Mr. Roberts and R.L. in each others’ company at various points over the next two hours.

[8] R.L. testified she had about three to four shots of vodka and around two beers at the bar. She began to feel unwell and told her sister she wished to go home. R.L. went out to the car with C.L. and the accused. She sat in the rear passenger seat and Mr. Roberts sat beside her. C.L. went looking for Maxroy. She went back to the bar and returned to the car a number times.

[9] According to the complainant, the accused began to sexually assault her when they were alone in the car. He put his hands on her shoulders, then into her pants. He was touching her vagina and sniffing his hands. R.L. testified that she opened the car door, but she was “really drunk” and fell to the ground. He held her from behind and continued to touch her vagina and sniff his hands. She remained “lifeless.”

[10] R.L. claimed that she tried to crawl away, but Mr. Roberts held her by the wrists. At some point, she was able to get up and walk back into the bar. Once there, she whispered something to her sister and passed out. The next thing she remembered was waking up at the hospital.

[11] The defence framed its challenge to R.L.’s evidence principally in terms of reliability, arguing that she was so intoxicated that she misperceived the interaction with the accused.

[12] The question of R.L.’s intoxication is, therefore, central to assessing her reliability. She acknowledged in her testimony that she was “really drunk” at the time of the alleged assault and admitted her memory of the night was hazy when she spoke to police. On her evidence, she had consumed roughly eight or nine alcoholic drinks, though her evidence on this point was imprecise. More significantly, R.L. passed out moments after the alleged assault. According to the paramedic who responded to the 911 call, she was unresponsive to painful stimuli and had to be taken to hospital by ambulance. There is no evidence before me of any other explanation for these events. I find R.L. was highly intoxicated and passed into unconsciousness on account of her consumption of alcohol.

[13] In this context, I must consider whether the complainant’s level of intoxication may have impacted her ability to accurately perceive, interpret and recall the events in question.

[14] R.L.’s memory of the night in question was clearly compromised. Her narrative of events was laid out in general terms with few specific details. Despite being in Mr. Roberts’ company for a substantial amount of time that night, she did not recall any of their conversations. And while the paramedic who treated her testified that she regained consciousness and reported the assault in the ambulance, R.L. herself had no memory of making these utterances.

[15] The issues with the complainant’s memory were not limited to peripheral matters. She did not remember how much time passed from when C.L. left her in the car with the accused until the alleged touching. She didn’t recall how long the assaultive conduct lasted or whether Mr. Roberts chased her when she broke away. These points went to the heart of her narrative of events.

[16] R.L. initially denied passing out when she first got out of the car and did not recall ever saying she had. When confronted with her statement to police where she did say she passed out at that time, she admitted she had lost consciousness for a brief time in the back alley. R.L. further testified that a stranger came into the alley when she was struggling with Mr. Roberts and the accused told him they were fine. She acknowledged there was no reference to this person in her police statement, but explained this memory had come back to her some time later. Similarly, she attributed words to the accused during the initial touching in the car which were absent from her statement to police. I do not believe these points indicated any attempt on R.L.’s part to mislead the court. Rather, I find they were the product of her intoxication.

[17] While the location of the alleged sexual assault was beyond the view of the security cameras, many of the interactions between the accused and complainant were captured on video. Some elements of R.L.’s testimony are confirmed by the video footage, including the group’s arrival at the Lion’s Den and the accused’s presence inside the bar. However, a careful review of her evidence reveals that, outside of the sexual assault itself, she supplied very little information regarding the events of that night on her own. Instead, the videos were played for her first and she essentially narrated what she saw. In this context, I was not able to measure R.L.’s reliability against the objective evidence of the video footage.

[18] There was one portion of her review of the videos that tended to undermine her reliability. As the complainant waited in the car with the accused, C.L. can be seen in the back alley carrying a jacket. R.L. viewed this video clip and testified “this is my jacket that she went to go grab.” However, the video shows C.L. going back into the Lion’s Den with the jacket in hand, not coming out with it. R.L. then viewed another clip of C.L. coming out of the bar with the same jacket some two minutes later and said, “she came to bring me the jacket.” It appeared that R.L. was piecing together the of events from the videos and, in this instance, doing so incorrectly.

[19] Much of my analysis concerns R.L.’s ability to recall, rather than to perceive and interpret. Memory is much easier to test in a court of law. However, there was one point at which the complainant’s interpretation of a specific act did appear to be compromised. She claimed, at first, that she took offence when Mr. Roberts first started putting his hands on her shoulders in the back of the car. However, in her statement to police, she had stated she was not offended by those actions. Faced with this inconsistency, R.L. acknowledged the truth of what she told the police. While this act was innocuous as compared with the overtly sexual acts later complained of, it gives rise to some doubt about her ability to perceive and interpret events in her highly intoxicated state.

The Spontaneous Utterances

[20] The Crown lead evidence of R.L.’s utterances to paramedics on the way to the hospital. Paul Ha testified that he attended the Lion’s Den in response to a 911 call and found R.L. unconscious and unresponsive. She was taken to hospital by ambulance, but regained consciousness on the way. Mr. Ha had a “vague memory” of utterances she made as soon as she came to. He did not record the complainant’s words verbatim, but did make notes of the substance of what she said in his call report. He testified as follows:

She was telling me that what she remembered was that she only had a couple of drinks, one or two drinks, didn’t do any other drugs, she was just with a gentleman in his vehicle, I’m not sure where outside, and she last remembered trying to find her sister or her family member or friend.

She told me that she was being touched inappropriately above and below her clothing.

I think she was saying she was being groped, her breasts, but then he had tried to put his hands down her pants.

[21] The Crown submits these utterances are admissible under the spontaneous utterances exception to the hearsay rule and can be used for the purpose of narrative as circumstantial evidence.

[22] Hearsay statements are generally inadmissible for the truth of their contents. However, the general rule admits of many exceptions, both under the principled approach to hearsay and pursuant to the traditional hearsay exceptions developed over many years at common law. The continued function of the traditional hearsay exceptions was succinctly summarized by the Court of Appeal in R. v. Nurse, 2019 ONCA 260 at paras. 59-61:

Since adopting the principled approach to hearsay, the Supreme Court has confirmed the continuing relevance of the traditional exceptions to the hearsay rule: see Starr, at paras. 202-207, per Iacobucci J.; Mapara, at para. 15; and Khelawon, at paras. 42, 60. In Khelawon, at para. 60, Charron J. held that, if a trial judge determines that evidence falls within one of the common law exceptions, this finding is "conclusive", and the evidence is admissible.

In Mapara, the court recognized that this conclusion may be displaced when the exception itself is challenged: at para. 15; see also Khelawon, at para. 60. That is not the case here; neither exception is under attack on a categorical basis.

The Supreme Court has also recognized that, in "rare cases", evidence that would otherwise fall within a valid hearsay exception may be excluded if it does not meet the requirements of necessity and reliability in the particular circumstances of the case. In Starr, Iacobucci J. wrote, at para. 214: "However, I wish to emphasize that these cases will no doubt be unusual, and that the party challenging the admissibility of evidence falling within a traditional exception will bear the burden of showing that the evidence should nevertheless be inadmissible." See also Mapara, at para. 15.

[23] The exception for spontaneous utterances has been historically, and somewhat imprecisely, referred to as res gestae: see R. v. Borel, 2021 ONCA 16 at para. 50 and R. v. Camara, 2021 ONCA 79 at para. 85. The Ontario Court of Appeal explained the rationale for the exception in R. v. Khan, [1988] O.J. No. 578 (ONCA), affirmed [1990] 1 S.C.R. 531:

...a spontaneous statement made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received. [Emphasis added.]

[24] The passage above reveals that a spontaneous utterance becomes admissible where the possibility of concoction can safely be discounted based on the circumstances in which the statement was made: see also R. v. Nurse, 2019 ONCA 260, at paras. 77-88. And as the Court of Appeal recently observed in R. v. Camara, 2021 ONCA 79, at para. 85, the doctrine posits that the mind of the declarant is “so dominated by the event that the statement can be regarded as an instinctive reaction to that event thus giving the declarant no real opportunity for reasoned reflection or concoction.”

[25] In R. v. Dakin, [1995] O.J. No. 944 (ONCA) at para. 20, the Court of Appeal confirmed that strict contemporaneity was not required and noted that the admission of such 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.” The Court of Appeal confirmed this approach to the issue of strict contemporaneity more recently in R. v. Hartling, 2020 ONCA 243 at paras. 59-51. And in R. v. Nguyen, 2015 ONCA 278 at para. 150 the Court held as follows:

The case law makes it clear that each case must be assessed on its own unique circumstances to determine whether there are sufficient assurances of reliability. So, for example, the Supreme Court held in Khan, at p. 540 S.C.R., that a child's statement made 15 minutes after leaving the doctor's office where she had been assaulted and approximately 30 minutes after the assault itself, was not sufficiently contemporaneous because it was not "made under pressure or emotional intensity which would give the guarantee of reliability". In Dakin, however, statements made by burn victims over 45 minutes after the event (a fire) were admitted as spontaneous declarations. And, in R. v. Michaud, [2004] O.J. No. 2098 (ONCA), a statement made by the victim within an hour and half of the assault was found to be admissible as a spontaneous declaration.

[26] In this case, the incident between the accused and complainant occurred just before 2:08 a.m., when R.L. can be seen on video re-entering the Lion’s Den for the last time. The utterances were made shortly before 3:00 a.m. Even though some 50 minutes had elapsed, I find the spontaneous utterance exception to the hearsay rule does apply here. R.L. passed out right after she entered the bar and she started speaking right after she regained consciousness. In these circumstances, there was no opportunity for reflection, she was still subject to the stress and pressure of the events, and the possibility of concoction can be safety discounted.

[27] Since R.L. testified at trial, the utterances in the ambulance also engage the rule against prior consistent statements. The fact that a witness has previously asserted that which she testifies to in court is generally inadmissible: R. v. Stirling, 2008 SCC 10 at para. 5. Prior consistent statements are usually viewed as self-serving and lacking probative value. The danger is that they lend themselves to the fallacy that repetition equates to truthfulness.

[28] There are several exceptions to the general exclusionary rule: for example, prior consistent statements can properly be admitted as pure narrative or to rebut an allegation of recent fabrication. In this case, the Crown argues the utterance constitutes narrative as circumstantial evidence. This use of a prior consistent statement was explained in R. v. Khan, 2017 ONCA 114; leave to appeal refused, [2017] S.C.C.A. No. 139 at para. 41:

But sometimes the circumstances surrounding the making of the prior consistent statement are such that the statement assists in assessing the reliability and credibility of a witness' in-court testimony, giving prior consistent statements admitted as "narrative" a more substantive use: R. v. Dinardo, [2008] 1 S.C.R. 788, [2008] S.C.J. No. 24, 2008 SCC 24, at para. 39; R. v. Evans, [1993] 2 S.C.R. 629, [1993] S.C.J. No. 30, at para. 32. This is referred to as narrative as circumstantial evidence.

[29] In some cases, a spontaneous utterance may be the only evidence from a witness, but where the witness testifies it can operate as a prior consistent statement. In this context, Justice Paciocco has explained why the utterance may yet have evidentiary value: “There are times, however, when hearsay evidence is expressed under circumstances that yield tremendously helpful criteria for evaluating the reliability or credibility of a factual claim”: David Paciocco, “The Perils and Potential of Prior Consistent Statements: Let’s Get It Right” (2013), 17 Canadian Criminal Law Review 181, pp. 192-193.

[30] The Court of Appeal considered the relationship between the spontaneous utterance exception to the hearsay rule and the exception to the rule against prior consistent statements in R. v. Khan, 2017 ONCA 114, supra, at para. 26:

As Watt J.A. noted in C. (M.), at para. 59, citing Paciocco, at p. 184, prior consistent statements are an amalgam of two elements -- the hearsay element and the declaration element. The hearsay rule takes care of the hearsay element. The prior consistent statement rules generally exclude the declaration element. Where admissible, the declaration element is proof that a statement was made, and allows a trier of fact to derive appropriate inferences from the fact and context in which the statement was made: Paciocco, at p. 184.

[31] I agree with the Crown that the utterances in the ambulance constitute narrative as circumstantial evidence. The qualities which alleviate the hearsay concerns here are the same features that exempt the utterances from the rule against prior consistent statements. In my view, the circumstances under which they were made provide valuable criteria for assessing R.L.’s credibility and give them evidentiary value over and above the in court testimony of the witness. I find the utterances meet the test for threshold reliability and are admissible.

[32] I find that the utterances tend to negate the possibility of concoction in this case. The utterances support the complainant’s credibility and confirm my view that she was not attempting to mislead the court.

[33] However, the issue of R.L.’s reliability remains. The utterances in the ambulance do not materially advance the Crown’s position that she was able to accurately perceive and recollect what happened. In fact, some of the reported contents of the statement contradict her testimony at trial. She told the paramedic she had one or two drinks, whereas she testified before me that she had eight to nine drinks. She told the paramedic the accused groped her breasts, but testified in court that he had his arms around her, under her breasts, when she was lying on the ground.

[34] With these concerns about the reliability of the complainant’s evidence in focus, I turn to the evidence of the accused.

Evidence of the Accused

[35] Mr. Roberts testified in his own defence and denied any sexual touching. In most other respects, his version of events was consistent with the complainant’s. He agreed he met R.L. the night of November 30, 2018 and attended the Lion’s Den bar with her, C.L. and Maxroy. He agreed that he was alone in the car with her in the back alley just before she passed out. However, Mr. Roberts claimed R.L. was so intoxicated that she stumbled out of the car and vomited. He came over and was holding her under her arms from behind to try and help her back into the vehicle. He denied ever putting his hands in her pants.

[36] Mr. Roberts gave a videotaped statement to police on November 30, 2018. The defence conceded the voluntariness of the statement and he was cross-examined on certain portions of it during the trial.

[37] Mr. Roberts is 38 years old. He came to Canada from St. Vincent in 2009 and has been working as a barber in Toronto. He is a foreign national without permanent residency status. English is his first language.

[38] Mr. Roberts’ testimony was highly unusual. His evidence in chief was rudimentary but coherent. During cross-examination he began to contradict himself in ways that suggested he did not understand all the questions being asked of him. I would stress that the Crown’s questioning was entirely proper and fair: neither the Crown nor the Court were given any reason to suspect there were cognitive issues at play. As the proceedings advanced, Mr. Roberts agreed to several suggestions that were damaging to his defence. But by the end of his testimony, I was persuaded he had not understood some of the admissions he made.

[39] My concerns about the way his testimony unfolded were so pronounced that I inquired of counsel whether there were fitness concerns. In the end I was satisfied that Mr. Roberts was fit to stand trial, but I strongly suspect there are cognitive or linguistic deficits here. In this context, the task of evaluating the accused’s evidence is uniquely challenging.

[40] Mr. Roberts was cross-examined at some length on his statement to police and made a number of damaging admissions. He agreed that he downplayed the extent of his contact with the complainant. He agreed that it was almost impossible he would have no memory of what she was wearing, which is what he had claimed in his police statement. He agreed that he intentionally misrepresented the extent of his own drinking. And he agreed that he said these things to avoid making the police suspicious. These admissions were often accompanied by long pauses in which Mr. Roberts appeared to struggle to understand what was being put to him. They were also closely juxtaposed against denials of those very same suggestions. At times Mr. Roberts would agree to a proposition then deny it in the very next answer.

[41] In re-examination, defence counsel asked Mr. Roberts to define certain critical words he had adopted in cross-examination and it became clear he did not understand them. The following exchange regarding the meaning of word “downplay” serves to illustrate the point:

The Court: What does it mean to downplay something? Mr. Roberts: Uh, uh, I don’t really understand. Ms. Barbisan: Do you not understand the question or do you not understand the word? Mr. Roberts: The word. Ms. Barbisan: You don’t understand the word? Mr. Roberts: Yes. The Court: Why did you agree with the Crown if you didn’t understand the word? Mr. Roberts: You mean by touching her, uh… The Court: Listen to my question now. Why did you agree with the Crown that you downplayed things if you did not understand the word downplay? Mr. Roberts: [Long pause] Can you repeat the words in syllables so I can understand? The Court: Yes. Why did you agree with the Crown when he said you downplayed certain things to the police, why did you agree with him when he said that if you didn’t know what the word meant? Mr. Roberts: [Long pause] Because I did not do what he said I done to the person.

[42] Sometime later in the re-examination, the following exchange occurred:

The Court: You meant to tell the police the truth or you did not mean to tell police the truth? Mr. Roberts: Yes. The Court: Let me ask you that again because that was an either or question, that wasn’t a yes or no question. Did you mean to tell the police the truth, or did you not mean to tell the police the truth? Mr. Roberts: The truth. The Court: Go ahead Ms. Barbisan. Ms. Barbisan: I’m going to go back to the word downplay Leonard. Do you understand that to downplay means to minimize? Mr. Roberts: Yes. Ms. Barbisan: Do you know what minimize means? Mr. Roberts: [Silence….]

[43] I am alive to the possibility that Mr. Roberts may have feigned a lack of comprehension in order to blunt the impact of admissions he made. But if he had the wherewithal to employ such a deception, he could easily have avoided making the admissions in the first place.

[44] In my view, Mr. Robert’s was clearly struggling to understand the suggestions put to him and was answering questions without guile. He seemed able to express a narrative in his own words, which made his testimony in chief unremarkable. However, when words and phrases were formulated by the questioner and put to him, in many instances I do not believe he was able to follow. He was confused by questions with multiple parts. I accept that his vocabulary is very limited and that, in many cases, he did not understand the words he was being asked to adopt. As a result, I find Mr. Roberts’ admissions have very limited bearing on his credibility.

Post-Offence Lies to Police

[45] The Crown submits that Mr. Roberts told several lies to police in his videotaped statement of November 30, 2018. In addition to undermining his credibility, the Crown argues these lies constitute post-offence conduct that should be treated as circumstantial evidence of guilt.

[46] The law distinguishes between mere rejection of an accused’s statement (or testimony) and a finding that it was concocted for the purpose of evading criminal liability and is circumstantial evidence of guilt. In the latter case, the trier of fact should be instructed in accordance with the Court of Appeal’s decision in R. v. O’Connor, [2002] O.J. No. 4410 (ONCA) at paras. 17-27, 38. First, the trier of fact must find the statement to be a deliberate falsehood (as opposed to an honest mistake). Second, the trier of fact must find (on the basis of evidence independent of the evidence proving it to be false) that the statement was made for the purpose of concealing the accused’s guilt: R. v. Al-Enzi, 2021 ONCA 81 at paras. 38-42.

[47] As the Court of Appeal explained in R. v. Coutts, [1998] O.J. No. 2555 (ONCA) at paras. 15-19, by limiting the use of disbelieved statements to situations where “there is evidence of concoction apart from evidence which contradicts or discredits the version of events advanced by the accused, the law seeks to avoid convictions founded ultimately on the disbelief of the accused’s version of events.” In practice, the determination of what constitutes “independent evidence” for the purposes of the O’Connor analysis is a difficult one. According to Doherty J.A., “the distinction … cannot be justified as a pure matter of logic”, but it continues to be drawn to ensure that triers of fact correctly apply the burden of proof. Doherty J.A. elaborated on this distinction in R. v. Paul, 2009 ONCA 443 at paras. 23-25:

The reference in O’Connor and many cases that have followed to “independent evidence” of fabrication is intended to emphasize that a finding of fabrication does not flow automatically from a finding that the statement should be rejected as false. There must be something more in the evidence that reasonably justifies the further inference that the false statement was deliberately made for the purpose of concealing the accused’s involvement in the offence.

[48] Independent evidence of concoction can also be found in “the circumstances in which the statement was made and the content of the statement”: see R. v. Paul, 2009 ONCA 443, supra, at paras. 23-26; R. v. O’Connor, [2002] O.J. No. 4410 (ONCA), supra, at paras. 26, 30-31; and R. v. Shafia, 2016 ONCA 812 at para. 287. In R. v. Stevenson, 2014 ONCA 842 at paras. 92-93, Doherty J.A. explained that the evidentiary value of an accused’s lies “will depend on the nature of that evidence, the other evidence adduced in the case, the inferences reasonably available from that evidence as a matter of common sense and human experience, and the relevance of those inferences to the live issues at trial.”

[49] In this case, I am not satisfied that Mr. Roberts deliberately lied to police about what R.L. was wearing or how much alcohol he consumed. Though he agreed in cross-examination that he intentionally mislead police on these points, I do not believe he understood what he was admitting to. He may not have remembered these points or paid much attention to them at the time. I am satisfied that he deliberately lied about the extent of his contact with the complainant. He essentially told police he had bought R.L. and her sister a shot and that was it. The evidence at trial establishes that he spent time with them at C.L.’s apartment, travelled to the Lion’s Den with them, and spent considerable time dancing and talking with the complainant inside the bar.

[50] Given the character of Mr. Roberts’ testimony before me and my findings concerning his comprehension, I am not satisfied the intentional lie he did tell was for the purpose of evading criminal liability so as to be indicative of guilt. The circumstances and content of the statement to police do not provide “independent evidence” of concoction. As statements of this kind are a form or post-offence conduct, I must consider other non-culpable explanations and reject them before drawing an inference adverse to the accused: see R. v. White, [1998] S.C.J. No. 57; R. v. White, [2011] 1 S.C.R. 433; and R. v. Calnen, 2019 SCC 6 at para. 108-112. Mr. Roberts was under arrest for sexual assault, facing potential penal and immigration consequences. In light of these factors, it is a reasonable possibility that he instinctively distanced himself from the complainant, despite having committed no crime.

[51] I find Mr. Roberts’ lies about his contact with R.L. undermine his credibility as a witness, but do not amount to circumstantial evidence of guilt.

Conclusions

[52] Having considered the accused’s testimony in the context of all of the evidence in the case, I do not accept it. His misrepresentations to the police are damaging to his credibility. His evidence was so confusing and internally inconsistent as to render it manifestly unreliable. As a result, I do not believe that Mr. Roberts testimony represents the true narrative of what happened that night.

[53] I find that R.L. was attempting to be truthful and did her best to communicate her understanding of events to the Court. I accept that she believed a sexual assault occurred. And in my view, it is unlikely she would have misinterpreted the kind of innocent acts Mr. Roberts described as a sexual assault. However, my concerns over her reliability cannot be extinguished. As discussed above, R.L.’s memory of events was seriously compromised by her intoxication and there were inconsistencies in her evidence on material points. Memory and perception are different faculties, but they are related and, in view of all the evidence before me, I have reason to doubt the reliability of both.

[54] In all the circumstances of this case, I am left with a reasonable doubt. While the events probably occurred as R.L. described, they have not been proved to the criminal standard and the benefit of the doubt must go to the accused.

[55] I find Leonard Roberts not guilty of sexual assault. The charge is dismissed.

Released: March 29, 2021 Signed: Justice Peter N. Fraser