Court File and Parties

COURT FILE NO.: 7885/18 DATE: January 17, 2019

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – J.S.

Counsel: Marie-Ève Talbot, Counsel for the Crown Kenneth Walker, Counsel for J.S.

HEARD: January 7 – 11, 2019

BAN ON PUBLICATION PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

VARPIO J.

REASONS for judgment

OVERVIEW

[1] In this case, the accused is charged with offences that allegedly occurred between January 2017 and April/May 2017. The complainant alleges that at the time, she was 14 years old. The complainant states that the accused sexually assaulted her between 20 and 50 times during this time period. In the first instance, the accused allegedly held the complainant down and refused to let her leave the basement of his residence. At the end of the first sexual assault, the accused threatened the complainant by showing her a firearm and indicating that he would kill the complainant if she told anyone of the events. The other incidents were similar to the first one. The accused is facing charges of sexual assault, forcible confinement, sexual touching and uttering threats.

[2] As will be seen below, the complainant’s testimony was filled with inconsistencies and inaccuracies, many of which cannot be explained by either the context of the case or her youth. The accused’s testimony was also deeply flawed. I am thus left in a state of considerable doubt as to what, if anything, happened as between the two. Accordingly, I find the accused not guilty of all charges.

EVIDENCE

Crown Evidence

[3] In this case, the complainant (“A.W.”) and her mother (the “Mother”) both testified for the Crown. A.W. testified that she is currently 16 years old. She met the accused after the latter had moved into the townhouse beside her residence in Elliot Lake. The accused lived at this townhouse between January and April/May of 2017. A.W. lives with the Mother and her brother. Between January and April/May of 2017, the accused lived with R.N. and the accused’s grandmother. A.W. met the accused via the accused’s sister B.S.J., who had been a good friend of A.W.’s.

[4] A.W. testified that she and the accused began their relationship as friends. The accused did not work and would go onto the back deck to smoke cigarettes. A.W. would also go onto her back deck to smoke when the Mother did not have cigarettes to give to A.W.

[5] A.W. provided two video statements to police which were tendered into evidence via section 715.1 of the Criminal Code of Canada. The first statement was given in June 2017. A.W. was giving a statement regarding an unrelated matter. A.W. then described an incident where A.W. was sexually assaulted by the accused in the accused’s basement in January 2017. A.W. stated that the incident began when the two started kissing in the basement. The pair were near the bar and the accused moved the complainant to the couch. The accused then held A.W. down on the couch. At some point during this transaction, the accused pulled her pants down. A.W. pushed away but the accused would not let her get away. The accused put a condom on as he held A.W. down with his legs. He then covered her mouth, presumably because there were others upstairs in the residence. The accused penetrated her vaginally with his penis and then anally. A.W. stated that she screamed “ow” during the anal penetration. A.W. testified that she was hesitant in disclosing anything because, fifteen minutes after the incident, the accused threatened to kill her by showing her a long gun which was located in a bag. The accused stated that he would kill her if she disclosed anything. There was no suggestion of any other incidents and the officer did not follow up on this possibility. In fact, the following exchange took place as between the officer and A.W. towards the end of the interview:

Q: Um, have you talked to [the accused] since that incident? A: No. Q: No? Has there been any text… A: Well I did ya. After he kept telling me to come over so I would, he didn’t touch me again . He was just like I just want to be friends and I said okay and he still said if I told anyone he would kill me. [emphasis added]

[6] A.W. ended her evidence by stating that the accused would ride past her house on his quad in a voyeuristic fashion after he had moved out of the residence to the trailer park.

[7] In September 2017, A.W. gave a second longer, but nonetheless sparse, statement regarding other allegations of sexual assault. A.W. stated that she was sexually assaulted between 20 and 50 times. A.W. indicated that these assaults all occurred between January and April/May 2017. They were similar in nature to the incident she initially described in that they involved vaginal intercourse in the basement. Few details were given of the assaults other than the fact that A.W. did not willingly have sex with the accused. A.W. testified that the accused gave her an S.T.D. which required medical attention. She described the accused’s genital warts as having “green crap” coming out of his penis. She discovered that she too had an S.T.D. after she was arrested herself (presumably on unrelated charges). When asked in her statement if she ever got checked out for the S.T.D., she stated that “That’s how I found out. I checked and he gave me the pills for it and the needle”. Of note, no medical documentation was provided to the court describing the nature of the S.T.D.

[8] In examination-in-chief, A.W. expanded upon her video statements. She indicated that she and the accused began by smoking together on the back decks of their respective townhouses. The relationship progressed to the point where the two shared a consensual kiss prior to the non-consensual sex.

[9] The Mother also testified briefly. Her actual testimony took approximately one hour to complete (discounting for breaks). The Mother testified that she had a good relationship with her daughter but that the two would often fight as do many parents with teenage daughters. A.W. disclosed the sexual incidents to the Mother during an argument.

Evidential Issues in the Crown’s Case

[10] A further examination of the evidence of both Crown witnesses indicates that there are a number of difficulties with the Crown’s case. The following are the issues that are most salient for the purposes of my analysis:

(a) A.W.’s first statement makes it seem as though only one incident of sexual assault took place while her second statement describes 20 to 50 such events;

(b) A.W.’s second statement indicates that A.W. was only in the accused’s home three or four times while later in the same statement, A.W. effectively testified that she was sexually assaulted in the home between 20 and 50 times;

(c) A.W. testified that the accused came up to her as she was walking along a street in front of a daycare in Elliot Lake. He then forced her to have sex with her while bending her over a bench. The first time this incident was disclosed was during the preliminary hearing;

(d) In her testimony, A.W. denied that she screamed during the incident involving anal intercourse while in the video A.W. indicated that she did scream;

(e) In her testimony, A.W. testified that she left the accused’s home immediately after the incident involving anal intercourse while her statements disclose that she waited at least 15 minutes prior to leaving because the accused threatened her with the gun after the incident;

(f) In cross-examination, accused’s counsel put to A.W. that her allegations against the accused had to do with the fact that the accused’s sister had initiated sexual assault charges as against someone (“D.N.”) who is close to A.W. and her family. Initially, A.W. responded to the question by stating, “yes”. In re-examination, A.W. changed her evidence. She blurted out to the Crown that she had misunderstood the question that was asked. She testified that her statement was intended as a mere acknowledgement that there were other charges.

(g) A.W. testified that she was often invited over to the accused’s residence via Facebook messages from his Facebook account which was under by accused’s name. She deleted the messages because she did not like the accused and did not want to see the messages;

(h) A.W. and the Mother both acknowledged that the Mother did not like the accused. Both A.W. and the Mother also acknowledged that the Mother pushed A.W. to go to the police to report the incidents;

(i) The Mother denied in her testimony that A.W. had a “crush” on the accused. However, in her video statement, the Mother indicated that the accused appeared to be in love with A.W. and that the daughter fell in love with people quickly. Although the Mother denied the implication, the clear meaning of the Mother’s video statement was that A.W. had feelings for the accused. I note, however, that the Mother testified that she only saw A.W. and the accused together on three occasions. Accordingly, one must question the depth of any analysis provided by the Mother on this issue.

Defence Evidence

[11] The accused testified in his defence. His evidence lasted for approximately 1.5 hours in total. He testified that he is 26 years old and that in the early part of 2017 he lived next door to the complainant with his grandmother. The house where he lived belonged to another older woman (“R.N.”) and R.N.’s two young grandchildren. He indicated that, at the time, he was involved in a sexual relationship with another woman. He indicated that he would go to his father’s everyday as he and his father had a close relationship. His father owned a quad and the accused testified that he would drive the quad to plough driveways in the winter. Since moving out of the residence in question, the accused used the quad to drive the trails behind A.W.’s residence to go between the trailer park where he now lives and his father’s residence.

[12] The accused testified that he smoked a pack a day at the time of the alleged offences and that he would go and stand on his back deck to smoke. The back deck of the house where he lived and the back deck of A.W.’s residence were close together. The accused testified that, other than when he was outside having a cigarette with A.W., he was never alone with her. He flatly denied ever kissing the complainant, having sex with the complainant or, for that matter, ever being in the basement alone with the complainant. The accused denied using Facebook to communicate with A.W. He indicated that, at the time of the offences, his Facebook account was not active under his proper name but under the name “Bo Duke”.

[13] In cross-examination, the accused was asked about the layout of the home as well as the contents of the belongings he brought with him to the residence. He also testified that he met A.W. in 2016 as A.W. was a good friend of his sister’s. He saw the two of them together but he did not interact with A.W. much personally. In early 2017, the accused testified that he would see A.W. on the porch for 2-3 hours per day but that the two did not have much – or any – conversation while they shared cigarettes. He testified that A.W. would ask for cigarettes 5 to 6 times per week. The accused described A.W. as neither a friend, nor a stranger.

[14] The accused was also pressed about his relationship with: (a) the accused (“D.N.”) in the sexual assault case wherein his sister is the complainant; and (b) The Mother.

[15] The accused in cross-examination denied the daycare sexual assault.

[16] The accused admitted his record for crimes of dishonesty.

[17] The Crown put a document to the accused in cross-examination that was putatively evidence that the accused’s Facebook account was active in January 2017 under his real name. I take nothing from this evidence because:

(a) The document was printed out in the middle of cross-examination and disclosed for the first time during cross-examination;

(b) Another witness testified at the end of the defence’s case with what appears to be a similar, if not identical, document from the accused’s Facebook account with a different time stamp of June 2017; and

(c) I will not take any judicial notice of what Facebook timestamps indicate without expert evidence, especially where the documentation appears to be contradictory.

[18] In reply, counsel asked the accused to break down the 2-3 hours per day that he spent with A.W. The accused then indicated that he meant 2-3 hours per week given the number of cigarettes he shared with A.W.

[19] The accused’s sister also testified. She testified that she and A.W. were good friends until four months ago when their relationship ended due to boyfriend issues. The accused’s sister also attempted to indicate that The Mother as well as friends/relations of the complainant attempted to threaten her into dropping charges as against D.N. I note, however, that the accused’s sister indicated in chief that A.W. was present during the threats but, in cross-examination, she indicated that A.W. was not present during same.

POSITION OF THE PARTIES

[20] The Crown submits that, given the context of the testimony, I ought to be satisfied beyond a reasonable doubt that the accused sexually assaulted the complainant as she ultimately described and that he ought to be found guilty of all charges before the court. Any discrepancies in her testimony can either be attributable to her age or to the manner in which the evidence came up. For example, the Crown indicated that the officer-in-charge did not ask fulsome questions of the complainant in the first statement and, when she was asked in her second statement about why she failed to disclose 20 – 50 incidents, she replied to the effect that it was because she wasn’t asked.

[21] The accused argued that the complainant had a crush on the accused and was rejected in her advances. A.W. was tangentially involved in the charges against D.N. and, during a fight with the Mother, the complainant blurted out that she and the accused had sexual relations as a way of fighting with the Mother. This disclosure then “boxed” the complainant into a corner whereby she could not relent in her accusation since the Mother continued to coax the complainant into making a complaint to police. Accordingly, I ought to have a reasonable doubt that the events in question occurred at all given the animus for the testimony.

ANALYSIS

The Law

[22] This is a case that turns on credibility and the analysis found in R. v. W.(D.), [1991] 1 S.C.R. 742. As is well-known, the analysis described at paragraph 28 of W.(D.) states:

First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[23] The Supreme Court of Canada examined how courts are to examine the evidence of children in R. v. R.W., [1992] S.C.J. No. 56. McLachlin J. (as she then was) discussed the changes that were then occurring in the law as they pertained to the testimony of children. Specifically, she stated at paragraphs 23 to 26:

Before turning to the particular errors alleged, I pause to consider the general question of how courts should approach the evidence of young children. The law affecting the evidence of children has undergone two major changes in recent years. The first is removal of the notion, found at common law and codified in legislation, that the evidence of children was inherently unreliable and therefore to be treated with special caution. Thus, for example, the requirement that a child's evidence be corroborated has been removed: s. 586 of the Criminal Code, R.S.C. 1970, c. C-34, which prohibited the conviction of a person on the uncorroborated evidence of a child testifying unsworn, was repealed… Similar provisions of the Canada Evidence Act, R.S.C. 1970, c. E-10, and Young Offenders Act, S.C. 1980-81-82-83, c. 110, have also been eliminated. The repeal of provisions creating a legal requirement that children's evidence be corroborated does not prevent the judge or jury from treating a child's evidence with caution where such caution is merited in the circumstances of the case. But it does revoke the assumption formerly applied to all evidence of children, often unjustly, that children's evidence is always less reliable than the evidence of adults. So if a court proceeds to discount a child's evidence automatically, without regard to the circumstances of the particular case, it will have fallen into an error.

The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. Wilson J. recognized this in R. v. B. (G.), [1990] 2 S.C.R. 30, at pp. 54-55, when, in referring to submissions regarding the court of appeal judge's treatment of the evidence of the complainant, she said that,

... it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children.

As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child. What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.

It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards -- to do so would be to create a new stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this . In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. [Emphasis added]

[24] The Ontario Court of Appeal described the importance of inconsistencies as they pertain to the weighing of evidence of both children and adults in R. v. A.M., 2014 ONCA 769, [2014] O.J. No. 5241, where the Court indicated at paragraphs 9 to 13:

First, every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding, and ability to communicate: R. v. W. (R.), [1992] 2 S.C.R. 122, at p. 134.

Second, no inflexible rules mandate when a witness' evidence should be evaluated according to "adult" or "child" standards. Indeed, in its provisions regarding testimonial capacity, the Canada Evidence Act, R.S.C., 1985, c. C-5, eschews any reference to "adult" or "child", preferring the terms "14 years or older" and "under 14 years of age". An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children's evidence: W. (R.), at p. 134.

Third, despite this flexibility, there are some guiding principles. Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: W. (R.), at p. 134. See also, R. v. Kendall, [1962] S.C.R. 469.

Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.) (1994), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.

[25] I also note that the failure to make a timely complaint may, depending upon the circumstances of the case, affect the credibility of the complainant: R. v. M.(P.S.).

Application to The Case Before Me

[26] The simple reality of this case is that the Crown’s evidence contains too many issues so as to be credible, despite instructing myself regarding the evidence of young people. The complainant, although quiet, did not appear to be developmentally challenged or in any other way unable to communicate with the officer. In fact, she would answer the officer directly when asked and would correct small mistakes she made in her statement. Her ability to jump in and change her evidence regarding the impact of D.N.’s charges also makes clear that she is not a young person whose inability to testify can be easily explained by youth or fear.

[27] A review of the first video statement makes clear that the complainant left the impression that only one incident took place. Indeed, the complainant testified that, after the accused began texting her after the initial incident, “he didn’t touch me again”. This is directly contradicted by the complainant’s second video statement and is a major concern regarding her credibility. This is not a case where A.W. omitted some detail or forgot an incident or two over the course of an extended period of time (i.e. years). Instead, the complainant made it appear in her first video that she was testifying regarding a discrete issue when, in her second video statement, it became clear that she was describing an extended interaction of sexual abuse.

[28] The disclosure of the “park bench at the daycare” incident is another example where the complainant failed to disclose very important happenings in a timely fashion. One can imagine where a youthful witness might forget to disclose instances that were similar in nature. By contrast, however, this was a very different type of instance which surely would have been at the forefront of A.W.’s recollections. Thus, the failure to disclose major incidents in a timely fashion has considerable significance in terms of the complainant’s credibility.

[29] It must be said that A.W.’s testimonial errors regarding the putative screaming post-anal intercourse and the amount of time she waited prior to leaving the residence after the first incident are minimal considerations which could easily be attributed to the witness’ youth and the possible fact that a young person who is allegedly traumatized by sexual abuse can forget relatively small details. One can easily imagine a youngster making mistakes in either recalling or recounting details of traumatic events. As such, these inconsistencies count somewhat against the complainant’s credibility but they do not diminish same considerably.

[30] By contrast, however, A.W.’s admission regarding her motivation to come forward (i.e. that it relates D.N.’s sexual assault charges) and her subsequent change of that position are not easily explainable by youth or misunderstanding. Counsel’s question was clear to the witness and she answered without hesitation. She then needed a break in the evidence because she was quite emotional. In re-examination, she was not asked a specific question about the admission but instead blurted out that she misunderstood counsel’s question. This exchange between the lawyers and the complainant leaves me with concern regarding A.W.’s true motivation. The complainant’s cross-examination left the lawyers and the court with the distinct impression that A.W. disclosed her allegations as a result of her knowledge of the charges against D.N. A.W.’s attempt to change her testimony in this regard is therefore somewhat troubling. Ironically, if A.W. came forward because of D.N.’s charges, this fact would not, in and of itself, be a reason to disbelieve A.W. A.W.’s attempts to change her testimony, however, are a concern and negatively affect her credibility.

[31] The Crown submits that the complainant’s knowledge of the accused’s basement layout proves that the complainant is being truthful while the accused is being untruthful. This submission is of no moment in so far as the complainant’s knowledge of the basement could have occurred before or after the accused’s stay at the residence in question. The complainant’s knowledge, therefore, neither adds nor detracts from anyone’s credibility.

[32] As noted above, The Mother’s evidence was problematic in so far as she appeared to give differing versions regarding A.W.’s feelings for the accused. The Mother clearly dislikes the accused and she refused to adopt her earlier inference that A.W. had feelings for the accused. This failure causes me to have concerns about her testimony, although the significance of said failure is minimal since The Mother did not have direct evidence regarding the charges before the court.

[33] For his part, the accused’s evidence was certainly not powerful. The accused’s claim that he rarely spoke with A.W. does not accord with common sense. First, the accused knew that A.W. was his sister’s friend. Secondly, the two spend a considerable amount of time together sharing cigarettes (as per the accused). Even accounting for the cold winter months, the two undoubtedly had some reasonable conversations while spending that amount of time together. This is not evidence that is easily discounted as an “honest mistake”. This evidence gives me grave concern about the accused’s honesty in recounting his version of events. When coupled with his record for crimes of dishonesty, the accused’s credibility is severely diminished.

[34] I also discount the credibility of the accused’s sister. I find it hard to believe that two teenage girls who are charging each other’s friends/relatives with sexual assault would only recently see their friendship terminate over boyfriend issues. This makes no sense.

[35] Accordingly, all the important witnesses in this case have serious credibility issues such that I do not know who, or what, to believe. As per W.(D.) when I look at the entirety of the evidence and consider that which I accept, I cannot state that I am satisfied of the accused’s guilt beyond a reasonable doubt. A.W. had many instances of late disclosure, much inconsistent evidence and she tried to change her evidence when it appeared that her evidence hurt her cause. While it could very well be that the accused committed the offences before the court, the problems with A.W.’s evidence make it impossible to find him guilty because her evidence is not sufficiently credible to support a finding beyond a reasonable doubt.

CONCLUSION

[36] The accused is hereby found not guilty of all charges before the court.

Varpio J. Released: January 17, 2019