Her Majesty the Queen v. Carleton Watson

COURT FILE NO.: 701/17 DATE: 20190327

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – Carleton WATSON

COUNSEL: Peter Scrutton, for the Crown Peter Brauti, for the Accused

HEARD: February 4, 5, 6 and 7, 2019

REASONS FOR JUDGMENT

PUBLICATION RESTRICTION NOTICE By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

Introduction

[1] The accused, Carleton Watson, is charged with one count of sexual assault on M.C., alleged to have occurred between August 1 and September 30, 2009.

[2] A four day trial proceeded before me. The Crown called one witness, the complainant. The accused testified in his own defence and denied any sexual activity ever took place between him and the complainant.

[3] By way of overview, the complainant and accused first met on August 20, 2009. At the time, he was working as a Peel Regional Police Service officer. He responded to a call about a landlord and tenant dispute in which Ms. C. was the tenant. After their initial meeting, they had a number of further contacts in August and September. The complainant alleges that on one of those occasions, the accused sexually assaulted her.

The Agreed Statement of Fact

[4] As a uniformed Peel Regional Police Service patrol officer, it is agreed that the accused drove a marked police cruiser that transmitted and recorded the vehicle’s location as long as the vehicle was logged onto the computer aided dispatch or CAD system. The GPS data relating to him revealed the following:

a. On August 20, 2009, the accused was dispatched at 8:30 p.m. to the complainant’s home for a landlord and tenant property dispute. M.C. was the complainant in the incident. The landlord was warned about entering her apartment without permission and about mischief to property. The accused’s cruiser was proximate to the complainant’s home from 8:45 to 9:46 p.m.;

b. On August 25, 2009, the accused’s cruiser was proximate to the complainant’s home from 5:06 to 5:44 p.m.;

c. On September 12, 2009, the accused’s cruiser was parked approximately 200 metres from the complainant’s home between 11:34 and 11:35 a.m. It was then stationary in a plaza at Goreway Drive and Derry Road from 11:39 a.m.to 1:10 p.m.;

d. On September 13, 2009, the accused’s cruiser was stationary proximate to the complainant’s home from 10:07 to 11:57 a.m. It left the area and went to a plaza at Goreway Drive and Derry Road, arriving at 11:10 a.m. and staying until 12:24 p.m. From there it went to a location approximately 200 metres from the complainant’s home, arriving at 12:29 and leaving at 12:39 p.m.;

e. On September 19, 2009, Peel Police officers, not including the accused, were dispatched to the complainant’s home in respect of a continuing landlord/tenant dispute. The parties were warned to stay away from each other.

f. A review of the GPS data for the accused’s police cruisers was conducted for the period from September 2009 to March 2010. The data shows that his vehicle never traveled to Toronto or to Durham Region (which is outside the geographical tracking area) in this period while logged onto CAD.

Evidence about the Events Preceding the Alleged Sexual Assault

[5] The accused is now 57 years old. He testified that he was born in Jamaica and has been married since 1987. He has two adult children. He began working as a Peel Police officer in 1992 and was working in general patrol in 2009.

[6] M.C. is 58 years old. In August 2009, she lived in a rented basement apartment in the Malton area with two of her adult daughters. Her landlord lived upstairs in the house.

[7] Ms. C. explained how she came to have contact with the police in August 2009. She said that while her landlord had permission to enter the basement for laundry, at some point he began to come down more frequently. Unhappy about this, she changed the locks. This led to an altercation in which she accused him of breaking and entering, which led to him breaking her door. She said that he shoved her. She called the police.

[8] M.C. said that in response, four officers came to her home, one of whom was the accused. She said this was the first time she met him and that he was the officer with whom she primarily interacted. He tried to calm her down and told her that he was there to protect her. According to her, he moved to embrace her to calm her down, but she said she did not feel like a hug. She said that he told her she could trust him, that he was a police officer, and that he could take care of her. She said that the officers spoke with the landlord and reassured her that he was going to fix the door and that he would only enter her apartment with her permission.

[9] Ms. C. said that the accused gave her his card and told her that he was always in the area.

[10] The complainant was cross-examined about whether she was sure that the first time she called the police was after she had changed the locks and had a scuffle with the landlord. She was sure that it was. She was shown Exhibit 3, which is a police occurrence report from August 20, 2009. While it indicated that two officers responded to the call, she was sure there had been four. While the report indicated that the complainant told police at the time that the landlord had changed the locks, she was sure that it had been her who changed the locks, and not the landlord who changed them because of her rent arrears.

[11] While the occurrence report refers to the landlord having removed the appliances from her apartment and that food had spoiled, the complainant said that this is what occurred the second time the police attended at her home, not the first time. She explained that she had withheld rent after the first assault.

[12] It was the accused’s evidence that his first contact with the complainant was on August 20, 2009 when he was dispatched to her apartment. He authored Exhibit 3 and relied on it to refresh his memory as to what occurred that day. He testified that two officers, he and a colleague, attended at the complainant’s home. The complainant was crying aloud, uncontrollably, and he tried to calm her down. She told him that the landlord had removed her fridge and stove and that her food was out. The accused testified that he spoke with the landlord and told him to return the items and that he would check back. When he did so, the landlord had complied. The accused told M.C. that she could call him after, should she wish to.

[13] The accused was asked whether it was possible that he put his hand on the complainant or embraced her. He did not recall, but did not think he had as that is not something he would have done.

[14] Ms. C. testified that the accused came back about two days later, with a partner, to see how things were going. He told her that he was always in the community and wanted to check on her. It was suggested to her under cross-examination that the return visit had been on August 25, 2009, which she did not seem to agree with. She said that the accused spoke to her and then to the landlord. She agreed that she then had a conversation with the accused in which she said she did not feel safe. She agreed that it was possible that they had discussed details of her life on this occasion, including telling him that she worked for an airline and him telling her that he was Jamaican.

[15] The accused said that his recollection was that he returned to the complainant’s home on August 25, 2009 to check in with her. Under cross-examination, he agreed that he could have gone back that same night (August 20, 2009) to check on things, or that he could have gone back on August 21 or 22, 2009. Had he gone back on August 20, he agreed that his visit on August 25 would have been to check on the complainant, rather than on the appliances, but could not say more about the nature and purpose of that visit. While he agreed that the visit on August 25, 2009 was from 5:06 to 5:44 p.m., he had no recollection of what they talked about.

[16] While the accused testified that he could not recall exactly what happened on which visits to her home, his recollection was that whenever he went, she told him that she had a lot of problems and was crying. He would act as an ear for her, would listen to her describe her problems and would give her advice.

[17] Under cross-examination, the accused said that he believed the total number of times he visited the complainant was three or four while he was on duty. He said that he recalled visiting her once while off duty, but allowed for the possibility that there could have been more visits. When it was put to him that the complainant had said he visited her between six and twelve times, he disputed that there had been a dozen visits, but said that the minimum number he thought there had been was four or five times. He thought that they had seen each other and communicated up to a possibility of six or seven times, and testified that she had called him quite a few times.

[18] The accused described how in their interactions, they would discuss family issues and M.C.’s employment. He recalled a conversation in which he had realized that while she was working for Air Jamaica, she had helped him at the airport. He said he had been scheduled to fly to Jamaica, but was uncomfortable because there was a storm. He testified that there was a form through which he could extend his ticket and said that she had helped him to complete it so that his ticket would remain active.

[19] The complainant was adamant that she and the accused never had a discussion about her having assisted him with a plane ticket at the airport.

[20] The complainant agreed that she had told the accused that she had five sisters, one of whom was named N.A.. She testified that she had no recollection of ever discussing with the accused that he knew her sister and that he played dominos with her brother-in-law, Mark, and was good friends with him.

[21] The accused testified that he and the complainant talked about her sister and brother-in-law, Mark. The accused testified that he had become friends with Mark and known him for a decade. They played dominos together and he had done repairs on Mark’s home.

[22] It was the accused’s evidence that early on, because the complainant had helped him at the airport, and because he knew her brother-in-law, he felt committed to helping her in any way that he could.

[23] M.C. described another visit from the accused, which occurred about a week after the initial visit. She said that the landlord had come downstairs and taken her food from the fridge and some of her frozen food was melting. She called 911. The accused was one of about four officers who responded. She said that on this occasion, she went to search for her passport and was unable to find it and believed that the landlord had stolen it. She said that she and the accused subsequently had a phone call about the passport and that she eventually found it.

[24] It was suggested to the complainant that the third occasion on which the accused came to her home was after her landlord had assaulted her and not when the stove and fridge had been removed from her apartment. She did not agree.

[25] Under cross-examination, it was suggested to the complainant that the landlord made a 911 call on September 19, 2009 and alleged that she had assaulted him and that it was Officer Ramirez who responded to the call, not the accused. She said that she called 911 and did not know if the landlord had as well. She had no memory of Constable Ramirez responding to her 911 call. She said that the report of September 19, 2009 that was put to her, Exhibit 4, was inaccurate and that the police had attended her apartment about the accused coming into it when she was not at home.

[26] The accused testified that he was not there with Officer Ramirez on September 19, 2009 and had only learned about that call at trial. While Crown counsel suggested to him that given his interactions with the complainant it was impossible she would not have told him about what happened on September 19, 2009, he was adamant that he was unaware of that call.

[27] It was Ms. C.’s evidence that in total, the accused dropped by her home around five or six times. Her impression was that he was coming to ensure that she was ok and feeling safe. All of these visits were brief check-ins. Under cross-examination, the complainant confirmed that there were numerous visits by the accused to her apartment and that he had come over between four and seven times in total. She thought he had been on duty on all of these occasions in that he wore his uniform. In addition to the visits, she testified that there were at least six phone calls between her and the accused.

[28] The complainant testified about one specific call in which the accused asked her if anyone owed her money and she told him that she had made a deposit for a condo, but that the money had been taken by a guy who worked at Rogers. She agreed that she asked for the accused’s assistance in finding the person who owed her money.

[29] The accused testified that the complainant told him that someone, who he believed was a cousin of hers, owed her money. He told her he would try to help. He called Rogers and was told that the person no longer worked there and might work in Hamilton. He testified that he was unable to locate the individual for the complainant. It was put to the accused that he had been going to efforts to try to impress the complainant because he was interested in her. He denied this.

The Sexual Assault Allegations

[30] Ms. C. described an incident in which the accused came by her home, unannounced, around lunchtime in August or September. She saw him at the window and went to the door. He came inside and asked her how everything was going. She said that he was in uniform and that he arrived in his police cruiser. Their initial interaction was normal.

[31] The complainant said that he had one hand behind him. They spoke about the landlord’s compliance and he then moved his hand from behind him to reveal that he had a bag from the LCBO containing a bottle of wine. The complainant said that she asked the accused what it was and he told her that he brought wine to relax. She told him she does not drink. She testified that she felt suspicious.

[32] According to M.C., the accused put the wine on the table and joined her on the couch. They had a conversation about her safety and she said that he told her that she should get a licensed gun. She told him that she was uncomfortable with guns and he said it would be for safety and protection. As they sat on the couch, the complainant said that the accused pulled out his gun. He unloaded it and put the gun and ammunition on the table and handed the unloaded gun to her. She said that he kept pressing her to get one. He took the gun back.

[33] Under cross-examination, the complainant agreed that she had reported to the Special Investigations Unit (SIU) that the accused had pulled out a revolver. She agreed that she said the same thing at the preliminary inquiry. She agreed that she had told the SIU that it was not the kind gun with a clip that comes out. Rather, she said that it had a cylinder, that the accused had opened the cylinder up, shown her the back end of the bullets and that he removed them and held them out.

[34] The complainant explained that she had said it was a revolver, but that she had not been looking at it, had been more focused on the wine, and wished to correct her statement and evidence that he had had a revolver. She said that she had been mistaken. She also said that she was not now saying that he had given her the loaded gun, but, rather, that he had tried to hand her the loaded gun, that she had refused, and that he had taken out the bullets to make her more comfortable before placing everything on the table.

[35] After showing her the gun, the complainant said that the accused took the wine bottle and went to the kitchen. M.C. said that she told him she did not want wine but that he poured two glasses. She testified that she felt uncomfortable. The accused kept telling her to relax and that she was edgy. She had a sip of wine.

[36] The accused had a couple of glasses of wine and then then came over and lunged at her and started kissing her. She asked what he was doing and he said to relax and drink more. She said that she needed to get up and he told her that the landlord had said that she entertained men down there and “what’s one more?” She said she did not know what he was talking about.

[37] The complainant described an assault that followed. She said that the accused forcefully put his hand across her to hold her and told her to shut up and stop making noise. She tried to push him off and struggled to do so as he came closer and pinned her, using his weight. She said that he was kissing her and telling her to shut up and that she felt belittled.

[38] M.C. explained in detail how the accused pulled off one leg of her tights and underwear and loosened his own pants and pulled them down. She said that he penetrated her with his penis as she struggled and pleaded with him not to do so.

[39] He then grabbed her off the couch and said “let’s go to the bedroom”. She said that she was shoved into the wall on the way to the bedroom and that the accused shoved her onto the bed, where she lay in a fetal position. She heard a condom wrapper and said that the accused told her to shut up and take it. He was aggressive as he inserted his penis into her again. She described pleading with him to stop and said that she was suffocating under his weight and felt like she could not breathe. She described herself as yelling and screaming hysterically for him to stop and get off. She thought he had ejaculated in her quickly and said that she assumed this from him having said, “damn” and collapsing on her.

[40] After he was finished, the complainant said that the accused went to another room and then came back to speak with her. She said that he wanted to let her know that she could not tell anyone what had happened and that no one would believe her. He told her that if she told anyone, harm would come to her and to her family. He told her that his brother had been a police officer and that he was killed in Jamaica. He told her that he was powerful and had friends and that she had to take heed of that. She said that she asked him to leave.

[41] The accused testified that he never sexually assaulted the complainant and that he never had any physical contact with her without her consent, or any physical contact of a sexual nature with her at all.

[42] Asked about whether he had ever taken wine to her home, the accused testified that he is not a drinker and does not drink generally. He said he would never drink while on the job.

[43] Asked about the complainant’s evidence about the gun, the accused testified that he never handed the complainant a gun and that his service weapon always stayed holstered. He said that he only ever had a service pistol. He described it as a .40 calibre pistol with a clip that holds 11 rounds. It did not have a cylinder that could be opened to show the back of the bullets. Apart from his service weapon, he never applied for a Firearms Certificate and never recommended to anyone, including the complainant, that she obtain a gun. He said that he would never have made such a suggestion.

[44] The accused also denied ever having threatened the complainant or her family in any way. He denied having told the complainant that his brother was a police officer killed in Jamaica. He testified that his brother had been an accountant who died of a heart attack in 2000.

Evidence about Contact between the Complainant and Accused after the Allegations

[45] M.C. testified about a number of occasions on which she saw the accused after the alleged sexual assault.

[46] On the first occasion, she said that he called her and wanted to talk. She was clear under cross-examination that this was not the date on which they went to breakfast. M.C. said that she told the accused that she was out and would meet him in the park. She said that he came, met her and that he told her that she had to follow what he said, that he would continue to check on her and that she had to act like there was nothing wrong if she wanted her family to stay safe. She said that she was already numb and felt like she had to comply so that her daughters would stay safe. She told him she would comply and that he did not need to threaten her.

[47] Under cross-examination, the complainant explained that she and the accused had had two meetings in the park. After the first one, she said that she was in the park and that the accused showed up while she was on the swing. He told her that he was everywhere and that he knew where she was at all times.

[48] The accused denied ever having had any meeting with the complainant in a park. Under cross-examination, he agreed that it was possible that he had met the complainant in a park, although he did not remember.

[49] The complainant testified about the next time she saw the accused, which was a few days after they met in the park. She said that he came round her house one morning, parked in front and told her that he wanted to talk and that he would take her for breakfast. She said his visit was unannounced and was at about 10:00 a.m. She denied that she had called him about problems she was having.

[50] The complainant said that they went to a strip mall at Derry Road and Goreway Drive and had breakfast. She described how the accused knew the owner and recalled a conversation that he had had with the owner. She said that topics of discussion over breakfast included problems in her life, like her finances, and where she was going to move.

[51] She said that after their breakfast, the accused said that she had a broken nail, that a “woman like her” should not have nails like that and that she should go to the nearby nail salon. She said that he walked her to the nail salon, that she went in and had her nails done. M.C. said that after 30-45 minutes, when she was done, the accused came by and offered to pay. She told him she would pay, but testified that in the end the accused paid cash. She denied that he had dropped her off immediately after breakfast and said that she walked home after.

[52] The accused also gave evidence about a breakfast. He said that he was at work one day and the complainant called him. He could not recall what she had wanted to discuss, but said that he went by her home and told her he was on his way to breakfast and asked her if she wanted to come. They had breakfast over an hour or an hour and a quarter. He denied ever having said anything about the complainant’s nails and denied having taken her to a nail salon. He recalled dropping her off in the area of her home after.

[53] The accused was asked about the date of the breakfast and whether he could tell what the date had been, based on the GPS information contained in Exhibit 1. Given he had testified about being at the complainant’s home on August 20, 2009 for the initial complaint, and back on August 25 to follow up, he thought that their breakfast could have been on September 12 or 13, 2009. He said that there were no other times that he was on duty that he was at the complainant’s home as all cruisers have GPS tracking systems and that there were no times when he was not logged onto the CAD system.

[54] Under cross-examination, the accused was asked more about his interactions with the complainant on September 13, 2009. He agreed that his cruiser was stationary near the complainant’s residence from 10:07 to 10:57 a.m. Asked if he was interacting with her at her residence, he said, “possibly” and that he does not know what happened. He would not agree that this long interaction, combined with one hour and twenty minutes for breakfast that day, was excessive for police business.

[55] Under re-examination, the accused said, for the first time, that during the period from 10:07 to 10:57 a.m. on September 13, 2009, he might not have been in the complainant’s residence, and that he could have been sitting in his car writing notes.

[56] M.C. described another incident in which the accused came to her home, off duty and in plain clothes, driving an SUV. He told her that he wanted to take her for a drive. She went with him and they drove on Highway 427 and the Gardiner Expressway towards downtown Toronto. She said that the accused was telling her that her life could be different and that she was stubborn. He also told her about the stresses in his life. She said that she was not interested in engaging with him. She told him that she needed to use a washroom.

[57] They ended up at hotel on the Lakeshore near Kipling and went into the lobby. M.C. said that the accused told her that he knew people there. She said that she asked to use the washroom. When she returned, she said that the accused told her that the manager was a friend of his and that they could get a room. She asked why they would do that, and said that she did not want to stay. They left, but the accused then told her that he needed to meet her mother. She agreed to take him to meet her mother, at the home in Vaughan where her mother lived with the complainant’s sister, S.C., and her husband.

[58] Asked why she took the accused to meet her mother, the complainant explained that she assumed it was part of his threat and that she believed that as a police officer, he already knew where her mother lived. She agreed that she could have made excuses not to take him, but said that she felt safer complying with his request. It was suggested to her that she would never have put her mother and sister in harm’s way. She said it never crossed her mind to go against the accused.

[59] M.C. said that he drove them to Vaughan. She testified that she introduced the accused to her mother as a police officer, and said that he was making sure she was ok with all of her problems. She said that she did not want to alarm her mother and so told the truth, initially, about him helping her. She said that at one point, her sister came downstairs and asked who the accused was. She and her sister then had a private conversation in which S.C. expressed surprise that the complainant had brought anyone there to meet their mother, and asked if everything was ok as this was an unusual event. While it was suggested to the complainant that she could have said that the accused was not a good person and that she had problems with him, M.C. said that she felt threatened by him and was complying with his threats.

[60] The visit lasted 15 to 20 minutes. M.C. said that after, the accused told her that he had met her mother and family and that she better stay in line. Feeling threatened, she told him that she would.

[61] An agreed statement of fact, marked as Exhibit 5, indicates that S.C. has a recollection of a time before 2011, while she was living with her mother, on which her sister brought a dark skinned male to her mother’s home. S.C. did not recall the person’s name, but assumes that it was the accused. She does not recall being told that he was a police officer and recalls him being like a normal guest.

[62] The accused was asked about the alleged hotel visit and the visit to the complainant’s mother. He testified that there were a couple of times that the complainant called him while he was off duty and that he had gone by to see her. However, he denied ever having gone with the complainant to a hotel. He said he never drove to downtown Toronto with her and had no friends at hotels.

[63] The accused had no recollection of going to the complainant’s mother’s home. He said it was possible that he did, and that had she asked him for a ride, he would have taken her. The complainant denied that the accused had driven her to her mother’s home as a result of her calling him and making such a request.

[64] M.C. said that she moved from the Malton area to Pickering in October 2009. She testified that the accused showed up at her home in Pickering. She said that might have told him where she was living, but did not recall giving him the full address. Under cross-examination, M.C. was asked whether she had given the accused her Pickering address and testified that to the best of her recollection, she had not. She thought that he would be able to find it as a police officer, and was unaware that a record was created every time an officer does such a search.

[65] When he showed up, unannounced, M.C. said that he told her that he was checking up on her and that he would always be watching her. She testified that he was in uniform and that she assumed he had a cruiser, although she could not recall seeing it. She told him that he could not come in and to please leave as she wanted nothing to do with him.

[66] The accused recalled the complainant telephoning him and telling him that she was moving to the east side. He did not know if it was in Ajax, Whitby, Pickering or Oshawa, but recalled it being on the east side. She did not give him her address. He wished her good luck. He said that he could never have driven a cruiser to her home in Pickering as he would have had to account for his time and that it would have been problematic had he had radio calls in Peel. Asked about obtaining the complainant’s address, he testified that all searches for addresses or of people done by the police are tracked and documented.

[67] The complainant testified about the final time she saw the accused. She thought it was in late 2009 or early 2010. She was working at the WSIB office at 300 Front Street in Toronto. She testified that she had never told the accused where she was working.

[68] M.C. said that one day as she left work, the accused showed up, unannounced and unplanned, and was standing outside her building in uniform. She did not see a police cruiser. He told her that he was just checking in and wanted to speak with her. He said that he did not like how she was behaving in that he had not heard from her. She said that her sister N.A., who worked at the same place, walked out of the building and looked at them. M.C. was sure that her sister had seen the accused there.

[69] Under cross-examination, the complainant agreed that she had never told the SIU that her sister had seen the accused that day. She testified that she had only remembered about that when she was giving her trial evidence. She was asked about her preliminary inquiry evidence in which she was asked whether there was anyone, including a friend or co-worker, who would have seen the accused there that day and had said that there was no one that she recalled. She agreed that that had been her evidence, but said she had just remembered about her sister.

[70] N.A.’s testimony from the preliminary inquiry was filed as Exhibit 7. In her evidence, N.A. testified that while the accused was a friend of her husband’s, and that she had met him, she was unaware that he knew her sister, M.C. until she heard about the allegations on March 1, 2017.

[71] It was the accused’s evidence that he was unaware of any place the complainant worked other than at Air Jamaica. He had no idea she had ever worked for the WSIB. He testified that he never visited downtown Toronto to see her.

Evidence about the Complainant Reporting the Allegations

[72] The complainant said that she did not come forward with her allegations until 2016.

[73] Prior to reporting, the complainant explained that she had called the police station and tried to get her nerve up to make a report. She said that twice, between 2010 and 2016, she asked to speak to the accused’s supervisor, but was told that he was not available. She said that she had not been comfortable making a report to the officer on the other end of the phone.

[74] Under cross-examination, the complainant was asked more about her efforts to report the alleged sexual assault. She said that her first call was to the accused’s police detachment. She agreed that she had called and asked to speak to him. Asked what she was going to say to him, she testified that she wanted to tell him that she was scared and afraid and that he had affected her life and that she wanted him to be accountable. She testified that she was told that the accused was not there but could be reached through dispatch. She said that she did not want that. Had he been there, she would have spoken to him, but since he was not, she wanted to speak with his supervisor. She was told that the supervisor was not available, and so she said she would call back. She testified that this was between 2009 and 2016 and that she did not know the date.

[75] The complainant was cross-examined about her second call to the accused’s detachment. Again, she had no idea about the date or the name of the person to whom she spoke. She said that she asked to speak with a supervisor and was told that no one was available. She was asked what she was calling about, but declined to say and did not leave a message for a supervisor to call her back. Her evidence was that she believed that the supervisor was avoiding her, even though she acknowledged never having given her name.

[76] The complainant testified that she called police a third time to report and asked to speak to the accused’s supervisor. She said that on this occasion, she was told that the accused did not work in the division. It was suggested to her that this would have been a perfect time to make a report and she testified that she was not prepared to speak to just anyone, and that she did not ask for a supervisor to call her back.

[77] It was in July 2016 that the complainant first reported her allegations to the Office of the Independent Police Review Director (OIPRD). She said that at the time, she was tired of “living in the shadows” and being afraid and that she had an outburst with one of her daughters. She told her daughter what had happened and then made an online complaint through the OIPRD, followed by a report to the Special Investigations Unit.

[78] M.C. was cross-examined about a statement that she provided to the SIU on March 17, 2017, after the accused had been charged and after she had received a call from her sister. She told the SIU that her sister, N.A., had told her that she was trying to protect her and that “you know these people will kill you”. At the preliminary inquiry, the transcript of which was admitted at trial as Exhibit 7, N.A. testified that she was not trying to dissuade her sister from coming forward with her allegations, that she did not recall saying anything like what the complainant attributed to her and that she would not have said this.

Applicable Legal Principles

[79] Mr. Watson, like all people charged with a criminal offence in this country, is presumed innocent. The burden of proof is on the Crown. It is for the Crown to prove beyond a reasonable doubt that Mr. Watson is guilty of sexual assault. There is no onus on the accused to prove anything.

[80] The standard of proof beyond a reasonable doubt is an exacting one. It is more than probable or likely guilt. Indeed, proof beyond a reasonable doubt falls much closer to absolute certainty than it does to proof on a balance of probabilities. Ultimately, I may find the accused guilty only if I am sure that he committed the offence alleged.

[81] The complainant and accused have both testified about interactions between them that occurred beginning in August 2009 and continued into the fall. They have presented very different versions of events respecting whether there was a sexual assault. My function is not to choose between their stories and decide which version of events I prefer. Rather, the evidence as a whole is to be considered in determining whether the Crown has proven the charge beyond a reasonable doubt. That turns, really, on an assessment of the credibility and reliability of the evidence of both the complainant and the accused. Those concepts are different. Credibility relates to sincerity and whether a witness believes those things about which he or she testifies. Reliability relates to whether what the witness has said is accurate.

[82] I am mindful of the need to avoid any assumptions and stereotypes as to how victims of sexual assault should or do behave: R. v. A.R.J.D., 2018 SCC 6; R. v. A.B.A., 2019 ONCA 124, [2019] O.J. No. 833. It is important not to make credibility findings on the basis of my own understanding of “common sense and logic” as this may mask improper reliance on prejudicial generalizations. Further, it is important to remember that there is no rule on how or when a person who has been sexually assaulted will complain about what occurred. There are many reasons why complainants often delay reporting. In assessing the credibility of a complaint of sexual assault, therefore, timing of her complaint is simply one circumstance to consider: R. v. D.D., 2000 SCC 43 at para 65.

[83] I also remind myself that while demeanour evidence may be a factor in assessing the credibility of a witness, care must be placed on the reliance of this evidence: R. v. W.H., 2013 SCC 22 at para. 41; R. v. N.S., 2012 SCC 72 at para. 22. It is important that undue weight not be given to demeanour because of its “fallibility as a predictor of the accuracy of a witness’s testimony”: R. v. Hemsworth, 2016 ONCA 85 at para. 44.

[84] The accused in this case has testified. Accordingly, the important principles set out by the Supreme Court of Canada in R. v. W(D), [1991] 1 S.C.R. 742 are applicable. If I believe the evidence of the accused, I must acquit. If I do not believe the testimony of the accused but am left with a reasonable doubt by it, I must acquit. Even if I am not left with a reasonable doubt by the evidence of the accused, I must ask whether, on the basis of the evidence that I do accept, I am persuaded beyond a reasonable doubt of the accused’s guilt. Furthermore, if after careful consideration of all of the evidence, I am unable to decide whom to believe, I must acquit: R. v. H.(C.W.) (1991), 68 C.C.C. (3d) 146 (B.C.C.A.).

Positions of the Parties

[85] The Crown says that the complainant was both credible and reliable and that her evidence establishes its case beyond a reasonable doubt. The Crown points out that while the complainant’s memory as to the chronology of events was inaccurate, many aspects of her evidence were confirmed. When it came to describing the actual interactions between the complainant and the accused in August and September 2009, including the sexual assault, her evidence was clear, detailed and persuasive.

[86] The Crown submits that the evidence of the accused is not believable and that there are key areas in which he was dishonest. Counsel suggests that the accused fabricated evidence in an effort to provide innocent explanations for his frequent visits to the complainant’s apartment. The Crown says that the accused’s significant criminal record, which includes 35 convictions for offences of dishonesty, is probative of his credibility and that he should not be believed.

[87] The defence position is that when the complainant’s evidence is considered with the objective evidence provided by the GPS, as set out in Exhibit 1, there is no possible date upon which the alleged sexual assault could have happened. In terms of credibility, the defence position is that despite the accused’s criminal convictions, which post-date the allegations, his evidence is believable and raises a reasonable doubt. The defence submits that the accused gave reasonable evidence that was largely untouched in cross-examination.

[88] By contrast, the defence says that the complainant provided a version of events that is uncorroborated in most respects and contradicted in other areas. Counsel submits that she was unreasonable and unreliable. She was wrong about the order of interactions with the accused. She gave a false statement about the accused having shown her his revolver. Her evidence that the accused told her he would kill her and her family is said to be hard to believe, and the submission is made that she did not behave as though she had been threatened when she agreed to meet the accused in the park and to take him to meet her family. Moreover, her evidence that the accused followed up with her by visiting her at her home in Pickering, and by waiting for her outside the WSIB is said by the defence to be false and to demonstrate that she is generally not credible.

Analysis

[89] The complainant provided detailed descriptions of her contacts with the accused. There is no doubt that she was confused about the chronology of events, which I accept was more accurately set out in the August 20, 2009 occurrence report written at the time by the accused and in the agreed statement of fact. But, despite not being sure of the order of interactions that she had with the accused and Peel police, M.C. provided details about these interactions that I find were credible and generally supported by other evidence. Indeed, much of the accused’s evidence confirms the nature of their early, pleasant and professional interactions.

[90] It is not disputed that the complainant and accused first met on August 20, 2009 when he attended at her home following a dispute she had with her landlord. It seems clear that the police spoke with the landlord and issued him a caution. There was nothing untoward about this interaction and the issue between the landlord and M.C. seems to have been largely resolved that day.

[91] It is also undisputed that the accused and complainant had a number of further contacts over the days and weeks that followed. Some of these were when he visited her home and others were when they spoke on the telephone. Most were while he was on duty, but at least one, and possibly more, were while he was off duty. In all of these interactions, the accused was professional and appropriate in his interactions with the complainant.

[92] There are also areas after the alleged sexual assault in which the complainant’s description of what happened appears to be confirmed by other evidence. For instance, her evidence about the accused having gone to breakfast with her was largely confirmed by his evidence. While they offered slightly different versions as to how they came to be going to breakfast, and certainly disagreed about whether she had her nails done after and whether he paid for that, they both agreed that they had eaten breakfast together at the mall at Goreway Drive and Derry Road. There is some further confirmation of this in the GPS records.

[93] Similarly, the complainant testified that on one occasion after the alleged sexual assault, the accused drove her to Vaughan to where her mother lived. While the accused had no recollection of this, the complainant’s sister, S.C. confirmed what appears to have been the same incident.

[94] There are, however, some significant differences in the evidence of the complainant and accused.

[95] The complainant thought that the accused had come back to see her more times than he said he had. She thought he initially followed up in a day or two. He recalled that he had first returned on August 25, 2009, although he agreed that he might have been back before that. In his evidence, he suggested that he had followed up on the appliances that day. But, given that the occurrence report from August 20, 2009 suggests that the appliance issue was resolved that night, it seems unlikely to me that this was the purpose of his return on August 25. I cannot and need not decide precisely how many times there was contact between the two of them after August 20, 2009, before the alleged sexual assault.

[96] The complainant described a sexual assault occurring after multiple visits by the accused. Her evidence about the sexual assault was, in many respects, detailed and compelling. She recalled what she was wearing and where the accused had been in her apartment. She recalled the accused bringing wine and telling her that it was to relax her. She recalled him showing her his gun. She recalled how he moved towards her and began sexually assaulting her on the couch, and how he then took her to her bedroom where he continued the sexual assault. There was no real challenge to the complainant about the manner in which she described events. As she testified, she displayed what appeared to me to be genuine emotion about what had happened. While I recognize that it is important to be cautious about relying too much on her demeanour, the manner in which she testified, and the content of her detailed evidence, make me find her evidence to be generally believable.

[97] The accused testified and unequivocally denied that there had ever been any sexual activity between them. He denied having been interested in the complainant in any manner, denied having taken wine to her home, denied ever making any sexual advances towards her and denied that there had ever been any sexual contact.

[98] As set out above, the defence position is that the sexual assault could not have occurred because the timing described by the complainant and the GPS evidence, when considered together, make it impossible.

[99] I do not agree with the defence that the timing makes the allegation impossible. It was clear to me that the complainant’s recollection of the timing of the events she described was imperfect. This is not surprising given that she was testifying about events that occurred almost ten years ago. I am not troubled that she may be mistaken about the precise number of times that the accused came to her apartment prior to the sexual assault. I observe that the accused was not completely sure about the number of interactions either. Again, I am not surprised by this given how long ago these events were.

[100] The complainant cannot say for sure when the alleged sexual assault took place. On the totality of the evidence before me, I cannot rule out that the alleged sexual assault could have taken place on August 25. Nor can I rule out it that it could have taken place on September 12. Nor can I rule out the possibility that it could have taken place on another day in between when the accused was off duty and not driving a police cruiser that would have recorded his whereabouts on the CAD system. I do not find that the timing of the alleged incident, as described by the complainant, forecloses the possibility that the sexual assault occurred.

[101] However, there are three specific aspects of the complainant’s evidence that cause me to have real doubts about her credibility generally.

[102] One of my most significant concerns relates to what the complainant said about the accused’s gun, which she alleges was shown to her on the day of the sexual assault. In her evidence in chief, M.C. described the accused taking the ammunition out of his gun and handing her the unloaded firearm as he pressed her to obtain one for herself. Under cross-examination, she agreed that in her statement to the SIU, she said not only that the accused had a revolver with him, but, in addition, that it was the type of gun with a cylinder, not a clip, and that the accused had opened up the cylinder enabling her to see the bullets. It is fair to say that she provided significant details about the gun and how she saw the bullets.

[103] It appears to be agreed that the accused actually had a service pistol, not a revolver, that it did not have a cylinder, and that there was no ability to see the back of the bullets as described by the complainant in her statement. The complainant conceded she was mistaken about the type of gun she saw, and testified that she had not been focused on it. But, I cannot accept that this was merely an innocuous error. It seems to me that when M.C. gave the police a detailed description of the gun, she did so intending to paint the accused in a negative light because of the way he handled his service weapon. Furthermore, choosing to say that the gun had a cylinder, and not a clip, is not the sort of innocent mistake that the complainant could reasonably have made. It is a specific detail that can only have been given in an attempt to bolster her story by providing critical details. I find that the complainant chose to provide details about the gun to the SIU in an effort to appear believable. The fact that her detailed description is now acknowledged to have been false, and appears to have been fabricated by her, causes me to have real concerns about the truthfulness of her evidence more generally.

[104] I am further troubled by two other aspects of the complainant’s evidence.

[105] First, I have serious concerns about M.C.’s evidence that the accused’s threats to control her, and keep tabs on her, extended to him visiting her at her home in Pickering. On the complainant’s evidence, she never told the accused the address to which she was moving. Yet, she says that he arrived at her home, in uniform, unannounced, on a day when she happened to be there. There is no evidence as to how he would have known where to find her. While she suggested that he could have run a police check, the evidence before me is that such a check would have been recorded. There is no evidence that such a check was done.

[106] The accused’s evidence is that he did not know where the complainant lived, never ran any check of her address and never attended at her Pickering home. He testified that he could not have done so while on duty as it was outside his area. There would have been a GPS tracking data had he travelled to Durham in a police cruiser.

[107] As the Crown acknowledges, this is a concerning area of evidence. I do not accept the complainant’s testimony that the accused came to her home and effectively continued to threaten her to stay quiet about the sexual assault as she alleges. It is highly implausible that the accused could have located her in Pickering without that having been recorded. It is implausible that he would have driven so far from Peel Region while on duty, as she said he appeared to have been. I find that the complainant embellished her evidence in order to portray the accused as a controlling individual whom she feared. Her fabrication of this evidence causes me to have significant concerns about the truthfulness of her allegation that the accused threatened her about maintaining her silence. Further, it causes me to doubt her credibility more generally.

[108] Second, I am very troubled by the complainant’s evidence that she saw the accused waiting for her outside her place of employment at the WSIB in downtown Toronto. This was the occasion on which she said, for the first time at trial, that her sister N.A. was coming out of the WSIB at the same time as she was, and that she knows that her sister, who knew the accused, also saw him.

[109] The accused has denied knowing where the complainant worked, and denied ever waiting for her outside work.

[110] I find it unbelievable that the accused did what M.C. alleges. There is no evidence that he knew where she worked, much less that he would have waited outside the building in which she worked on the off chance that he might see her as she headed to the GO train, and use that opportunity to effectively continue his threats of her. The events described by the complainant just do not make sense and appear to me to be fabricated.

[111] Moreover, the complainant’s new evidence at trial that her sister N.A. also saw the accused that day seemed to me to be fabricated in an effort to bolster her testimony. It is telling that she testified at the preliminary inquiry that there was no one who could confirm that the accused had been there. She then purported to remember this for the first time at trial. I do not accept this. It is also telling that the evidence of N.A. at the preliminary inquiry was that she did not know that the accused and her sister, M.C., even knew each other until March 2017. This evidence makes it even less likely that N.A. would have seen the accused and complainant together as M.C. described.

[112] In my view, M.C.’s testimony about the WSIB interaction is a further example of her creating and then embellishing evidence in an effort to augment her evidence that the accused was threatening her, and to paint him in a poor light. Again, it causes me real concerns about the reliability of the complainant’s evidence more generally.

[113] While the defence urges me to find the complainant incredible because of her evidence relating to her attempts to report her allegations, I do not find this aspect of her evidence particularly troubling. There is no one, usual manner in which victims of sexual abuse report what happened to them to authorities. On the complainant’s evidence, she was struggling with how to come forward. She wanted to speak to the accused and tell him how he had made her feel. She wanted to speak to his superior, but was fearful about doing so. She was, on her own evidence, paranoid about pursing her allegations. She has offered an explanation for the steps that she took that I cannot say is unreasonable. While what she did before reporting to the OIPRD may appear unusual or surprising to some, I decline to draw any adverse inference against her because of the fact that she claimed to have called the police several times before she ultimately made her online complaint.

[114] By way of summary, I find that M.C. provided a plausible account of her having been sexually assaulted by the accused. There were aspects of her evidence that were detailed, clear and believable. On the other hand, there were areas of her testimony that left me very concerned about whether she was credible and whether her evidence could be relied upon. I was particularly concerned about those areas of her evidence I have set out: her apparent fabrication of evidence respecting the accused’s gun that she said was shown to her on the day she was sexually assaulted; her fabrication of the accused travelling to her home in Pickering and threatening her there; and her fabrication of the accused having waited for her outside the WSIB at a time when she claimed, falsely, that her sister also saw him.

[115] I turn now to the evidence of the accused.

[116] The accused has a criminal record. On September 14, 2015, he was convicted of attempting to obstruct justice, 8 counts of breach of trust by a public officer, 21 counts of fraud over $5,000 and 8 counts of forgery. He was sentenced to 5 years concurrent on each count. He has served his sentence and been released. Asked about these convictions, he said that he had trial and was convicted and exhausted his appeals. He is not proud of what he did and said that he is trying to move on.

[117] The accused’s criminal record, and the fact that it is for multiple offences of dishonesty, raises concerns about his credibility and causes me to more carefully scrutinize his evidence than were he to have no criminal record.

[118] Overall, I found that the accused testified in a manner that was logical, internally consistent, and confirmed by some of the other evidence including the agreed statements of fact and the GPS evidence.

[119] The accused presented himself as having been a community police officer who took a genuine interest in those he served in the community. He explained that he found the complainant to be a broken woman and that he felt a particular obligation to try to assist her both because she had previously assisted him at the airport and because he was friends with her brother-in-law, Mark.

[120] There were, however, aspects of the accused’s evidence that caused me to have concerns about his credibility.

[121] First, I find that the accused’s explanation for his repeated returns to the complainant’s home difficult to accept in their entirety. It appears from the occurrence report he authored that the issue with the landlord was resolved on August 20. The accused initially testified that he returned on August 25 to follow up, although he conceded that he could have followed up on August 20 or 21 or 22. Had that been the case, his reasons for repeatedly returning to her home on August 25, and again on various other days that he acknowledged having been there, are difficult to accept. Even were I to believe that he felt some responsibility for M.C. because he knew her brother-in-law, and because she had previously helped him at the airport, it seems to me that he spent more time in the vicinity of her home than was warranted in the ordinary course of police duties. In reaching that view, I rely on the fact that his cruiser was in the vicinity of her home for 38 minutes on August 25 and for 50 minutes on September 13. These, in particular, seem excessive for usual community policing.

[122] I am also concerned about the accused’s evidence, offered for the first time in re-examination, that his cruiser may have been in the vicinity of the complainant’s home on September 13 because he was sitting in it writing notes. This late explanation for his cruiser being where it was, which was not mentioned during his examination-in-chief or cross-examination, seemed like a contrived effort to explain a long time spent in the area of the complainant’s home and made me question the veracity of his evidence more generally.

[123] I am also troubled by the fact that the accused and M.C. had breakfast in the mall near her home, likely on either September 12 or 13. There was no evidence provided as to normal police practices while on duty, other than the accused who said that he was free to go to eat while on duty. Even accepting that, it seems to me surprising and concerning that an on duty officer would spend either 91 or 74 minutes socializing over a meal with a woman he knew only as a complainant. Moreover, the evidence about this breakfast, viewed in the context of their multiple interactions that were proximate in time, suggests to me that the accused may well have had something beyond a professional interest in M.C.

[124] That said, there were areas in which I found the accused’s evidence to be very believable and really unchallenged.

[125] For instance, I found his testimony in response to the complainant’s allegations about his gun to be compelling. He seemed to me to have been genuinely appalled at the suggestion that he would have encouraged the complainant, or anyone, to obtain a gun for self-protection. His denial of ever having taken his gun from its holster to show to M.C. also seemed to me very believable. Overall, I prefer his evidence about the gun discussion to that of the complainant. As I have indicated, I found parts of her evidence on this issue to be contrived. By contrast, his made sense.

[126] I also found that the accused was willing to acknowledge the frailties of his memory, a factor that bolsters his credibility. He was unsure about the number of times he had had interactions with the complainant and admitted this. Repeatedly, under cross-examination, he said he did not recall things in the manner suggested by the Crown, but was prepared to allow for the possibility that the suggestions made were true. This, of course, stands in stark contrast to the complainant who, even when documentary evidence demonstrated that her memory about the chronology was incorrect, refused to accept that she might be mistaken. In respect of the visit to M.C.’s mother’s home, the accused seemed to me to be being forthright when he claimed to having no memory of the event. But, he candidly agreed he could have been there. Of course, the version of that visit given by M.C.’s sister portrays it as having been a pretty innocuous visit and likely not memorable.

[127] Ultimately, given his criminal record and the concerning aspects of the accused’s evidence, I cannot accept as true his evidence denying having committed the sexual assault. However, there is no question that his evidence does leave me with a reasonable doubt as to whether he sexually assaulted the complainant in the manner that she described. Further, even if his evidence did not raise for me a reasonable doubt, for the reasons set out above respecting the complainant’s credibility, I cannot find, on the basis of the evidence as a whole, that the Crown has proven beyond a reasonable doubt that the accused sexually assaulted her.

[128] Accordingly, I find the accused not guilty.

J.M. Woollcombe J.

Released: March 27, 2019

COURT FILE NO.: 701/17 DATE: 20190327

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Carleton WATSON REASONS FOR JUDGMENT WOOLLCOMBE J.

Released: March 27, 2019