Court File and Parties

COURT FILE NO.: CR-18-17 DATE: 2019 0527 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Thomas Steele aka Thomas Saunders

BEFORE: E.J. Koke

COUNSEL: Radbert Pe, Counsel, for the Crown Gary Pickard, Counsel, for the Accused

HEARD: April 30, 2019 – May 2, 2019

By court order made under subsection 486.4 of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.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.

Judgment

Introduction

[1] The accused, Thomas Steele, aka Thomas Saunders (“T.J.”) is charged with the Sexual Assault of A.V. and two counts of Breaching a Recognizance.

[2] As is often the case in criminal sexual assault proceedings, the evidence of the complainant differs markedly from the evidence of the accused. T.J. submits that the sexual activity which occurred was consensual. A.V. submits that it was non-consensual. There were no witnesses to the alleged assault, and little corroborative evidence.

[3] The focus of this decision is on assessing the credibility of the accused and the complainant in relation to the issue of consent.

The Evidence

The Events prior to the Trailer Incident

[4] The community of Britt, Ontario is located on the north shore of the Magnetewan River at Byng Inlet, near the eastern shore of Georgian Bay, in the District of Parry Sound. Most of the homes comprising the community are scattered along a four kilometre stretch of Riverside Drive, which runs in a south westerly direction from Hwy 69 in the east to the Inlet in the west.

[5] T.J.’s parents moved from the Town of Bracebridge to Britt when he was 13 years. Following the move, T.J. remained in Bracebridge where he lived with family members. T.J. is now 24 years old. Several times a summer T.J. visits his parents at their home in Britt.

[6] In the summer of 2018 T.J. scheduled a visit to Britt, planning to arrive on Thursday, July 12, and staying through Sunday, July 15.

[7] The complainant, A.V. was 18 years old in the summer of 2018. She was raised in Britt and continues to live in the community.

[8] T.J. testified that prior to his visit to Britt his mother suggested that if he was interested in spending time with someone around his age during his visit, he could try contacting A.V.. T.J. and A.V. did not know each other at the time. Subsequently, T.J. contacted A.V. on Facebook who accepted his request to become his Facebook friend. Thereafter they exchanged messages and agreed to meet after he arrived in Britt.

[9] On Friday afternoon, July 13, 2018, A.V. and T.J. met at the Britt Public School. The school is located on Riverside Drive about halfway between T.J.’s parent’s home and the home where A.V. lives with her parents, which is located about a 40-minute walk to the northeast, off Riverside Drive.

[10] At the school A.V. and T.J. sat on the schoolyard swings and talked. After about an hour it started to rain and they decided to walk back to their respective homes, after agreeing to contact each other the following day.

[11] The following morning, A.V.’s close friend C.D., who lives a several minute walk away from A.V.’s home, dropped in to see A.V. They decided to go swimming at the government dock that afternoon, and they contacted T.J. and asked him to join them.

[12] A.V. testified that she started drinking alcohol around 10 or 11 a.m. that Saturday morning and had consumed 2 or 3 beverages by early afternoon when she and C.D. left her home on their bicycles to go swimming. She was drinking standard sized Palm Bays, which are vodka cooler beverages.

[13] T.J. joined A.V. and C.D. after they arrived at the government dock. A.V. testified that she took 2 Palm Bay coolers with her to the dock, and T.J. arrived at the dock with approximately four Black Fly vodka coolers and a bottle of Absolut Vodka.

[14] A.V., C.D. and T.J. remained at the government dock until the late afternoon. A.V. testified that she believes she consumed two more Palm Bay coolers while she was at the dock. A.V. testified that T.J. was also drinking alcohol, but she does not know how much. C.D. did not have any alcohol to drink.

[15] After they left the dock, A.V. invited T.J. to come to her house for the evening. T.J. accepted the invitation and A.V. decided to leave her bicycle in Town and walk to her home with T.J. C.D. rode her bicycle home.

[16] A.V. testified that she and T.J. arrived at her home between 6 and 7 p.m. When she arrived home, her father and her mother were on the porch with two neighbours. C.D. arrived a little while later. A.V. testified that she spent most of the evening inside on the couch with C.D., and that T.J. spent time inside with her and C.D. and outside on the porch with her parents and the Michauds.

[17] A.V. testified that she consumed two mixed alcoholic drinks during the evening. T.J. was drinking alcoholic beverages as well.

[18] A.V. testified that at one point that evening T.J. asked her if he could spend the night at her home, but when she asked her mother her mother refused to give her permission. She decided to walk T.J. partway home, to a location close to the school, a walk of about 20 minutes.

[19] T.J. testified that after C.D. left A.V. asked him twice about staying over for the night. The first time he refused and the second time he suggested she ask her mother.

[20] According to A.V., she and T.J. left her home around 8pm, just as the sun was beginning to set. C.D. testified that she recalls that she left A.V.’s home around 9 pm and A.V. and T.J. had not yet left. T.J. believes it was about 8: 30 pm when he left with A.V.

[21] A.V. was asked to rate her level of intoxication at the time she left her home on a scale of 0 – 10, with 0 representing no effects from alcohol consumption and a 10 representing extreme impairment. She testified that she believed that her level of impairment was about a 7 – 8 at that time, and that T.J.’s impairment was at about a level 5 – 6. She refers to both as being noticeably intoxicated. Applying the same impairment scale, C.D. testified that in her opinion both T.J. and A.V.’s level of impairment was approximately 8 at the time she left for her home. T.J. testified that he believes that both he and A.V. were both experiencing a “nice buzz” and were about a level 5 on the impairment scale.

[22] Her mother testified that sometime after her daughter left to walk T.J. home she noticed that it was quite dark so she called A.V.’s cell phone but did not receive an answer. She called again about 10 or 15 minutes later and again no answer. She then suggested to her husband that he call A.V. on his cell phone but he did not receive an answer either. Shortly thereafter, her husband received a call back from A.V., who indicated she was at the legion, just several minutes up the road. A.V. informed him that she would be home “in a few minutes”. Her mother testified that notwithstanding A.V.’s assertion that she would be home in a few minutes it took “quite a while” before their daughter returned home, “longer than it should have took”. Her mother agreed that it was such a long time that it was “concerning” for her.

[23] Her mother informed the court that when A.V. returned home she did not give the appearance of being under the influence of alcohol and she went directly to her bedroom.

The Events at the Trailer

[24] The evidence of A.V. and T.J. is largely consistent up until the time A.V. left her home on Saturday evening to walk T.J. part way home. Thereafter, there is a significant divergence in their evidence.

[25] A.V. testified that several minutes after they left her home they arrived at the local legion where she stopped to check her phone. While they were at the legion, T.J. attempted to kiss her, but she pushed him away.

[26] T.J. testified that they shared a kiss at the legion. He agreed that he may have initiated the kiss but he insisted that it was mutual, and that A.V. did not resist or push him away.

[27] A.V. testified that she had taken an alcoholic beverage with her when she left her home and continued to drink during the walk with T.J.

[28] A.V. informed the court that about 20 – 25 minutes into the walk they arrived at a location where there is an old abandoned house trailer parked in a field adjacent to the road. She testified that she does not know why, but for some reason they decided to walk down the driveway to the trailer and enter it. She insisted that it was T.J.’s idea to go to the trailer.

[29] After they entered the trailer, they entered a carpeted room on the right. A.V. testified that T.J. then tried to kiss her. She responded by informing T.J. that she was “not having it” and that she “just wanted to go home”. He then kissed her on the lips. She testified that she then turned away and looked at her phone. After she put the phone away T.J. came up behind her and grabbed both of her wrists and held them with one of his hands while pulling down her shorts with the other hand.

[30] A.V. stated that her underwear came off with her pants, and she was now naked from the waist down. T.J. then pulled her down to her knees using both of his hands, and proceeded to insert his penis in her vagina, moving it back and forth. He then pulled his penis out of her vagina and penetrated her anally.

[31] A.V. testified that while this was happening, she repeatedly asked T.J. to stop and insisted that she just wanted to go home. She told him this at least 6 or 7 times. She used the word “nudge” to describe the manner in which she tried to force her body away from T.J. She stated that T.J. was about a foot taller than her and that she was not strong enough to break away from his grasp. At one-point T.J. responded to her protestations by calling her a “bitch” and ordering her to “shut up”. He also told her that he could provide for her and would be able to buy a house for her, presumably as an incentive for her to engage in sex with him.

[32] A.V. testified that her parents “started calling her”, wondering what was taking her so long. She eventually responded to the calls by texting her father, and telling him she would be home soon.

[33] A.V. testified that T.J. did not wear a condom and that he did not ejaculate.

[34] Eventually T.J. stopped, after which she pulled up her pants and left the trailer and walked home.

[35] A.V. went to the police about 10 days later.

[36] T.J. testified that when he and A.V. arrived at the driveway leading to the trailer it was A.V. who suggested they go inside. He said that prior to that evening he did not even know that the trailer existed. He said he was reluctant to go inside because it was on someone else’s property. A.V. assured him that she had been inside the trailer before and that the local kids have used it as a place to party. They then kissed for a while on the road in front of the trailer, before approaching the trailer.

[37] A.V. led the way inside the trailer and turned right into an adjacent carpeted room which he said was the cleanest part of the trailer…it was like “she knew where to go”. Once inside the room they started kissing, and then A.V. took all of her clothes off. He followed by taking off his clothes, after which A.V. gave him oral sex, following which they had intercourse, with her on top of him in a seated position. After this, they stopped briefly and drank one of his black fly beverages, following which they continued having sex, adopting different positions. At one point she asked for anal intercourse and he obliged, although he informed the court that anal intercourse wasn’t something he particularly enjoyed.

[38] T.J. recalled that while they were having sex A.V. received several calls. He believes that A.V. answered the second call, which was a call from her father. She responded by informing her father that she was at the legion, and that she would be home soon. It was now quite dark outside. After speaking to her father, she immediately got dressed, and informed him that she had to go home.

[39] T.J. testified that they had sex for about 30 to 40 minutes. When they were finished having sex they left the trailer. They gave each other a good bye hug on the road and then each went their separate ways.

[40] He was contacted by the police and charged about 10 days later.

Discussion

Legal Issues

a) Similar Fact Application

The Facts

[41] The Crown brought an application at the trial by way of a blended voir dire for an order allowing the production of similar fact evidence.

[42] Evidence was submitted in support of the application which revealed that T.J. had previously been convicted of the section 271 Criminal Code offence of Sexual Assault involving S.W., with a conviction date of June 23, 2017. The incident date was June 27, 2015, approximately three years prior to the date of the incident involving A.V.

[43] The incident involving S.W. occurred after S.W., T.J. and a second woman, K.B. attended the home of T.J. for a “final beer” after spending the evening together at a party. They had all engaged in some heavy drinking at the party, and T.J. admitted that he and K.B. had consumed some MDMA as well.

[44] T.J. admitted that he had a sexual interest in S.W. Once they arrived at T.J.’s home they each consumed some more alcohol, and S.W. informed K.B. that she was interested in “being with a girl”. T.J. then left the room and S.W. and K.B. engaged in sex on a mattress in the room.

[45] After engaging in sex with S.W., K.B. went to the bathroom and when she returned she discovered that T.J. was now lying on the mattress she had been lying on with S.W. She returned to the bathroom and heard the sounds of the accused and S.W. having sex and she heard S.W. tell the accused “no please stop”, at least 12 times.

[46] S.W. testified at the trial that she fell asleep on a mattress after having sex with K.B. and that when she woke up T.J. was naked on top of her between her legs. She asked him to stop about a dozen times but he refused to do so.

[47] T.J. testified that S.W. had been flirting with him at the party and that the sex was consensual. He admits that eventually she asked him to stop, and when he heard her say this he stopped having sex immediately.

The Law

[48] The rules governing the exceptional admissibility of evidence of similar acts have migrated from the traditional pigeon-hole to a principled approach. The admissibility is now determined by:

i. the relevance of the evidence to an issue in the case, otherwise than by demonstrating the propensity of the accused to commit crimes or other disreputable or repugnant acts; ii. the probative value of the evidence; iii. the prejudicial effect of the evidence; and iv. a balancing of the probative value against the prejudicial effect of the evidence.

[49] As summarized by David Watt at paragraph 34 in his textbook, Watt’s Manual of Criminal Evidence, the principal driver of probative value is the connectedness of the evidence of similar acts to the offences charged. There is no absolute prohibition against propensity reasoning in determining probative value, only an insistence that propensity evidence relate to some other issue beyond general disposition or character. The degree of similarity required depends on the issues in the case, the purpose for which the evidence is tendered, and rest of the evidence in the case. Similarity does not require a strong peculiarity or unusual characteristics underlying the events to be compared.

Position of the Applicant

[50] The Crown submits that the circumstances and evidence in relation to each complainant establishes a pattern. The issues which are addressed by the similar fact evidence are intended to establish in this case:

i. whether the incidents occurred; ii. to provide context and a narrative for how the incidents occurred; iii. the credibility of the witnesses in light of the other allegations; iv. the credibility of T.J. in light of the other allegations; v. proof of a pattern of behaviour in similar circumstances illuminating knowledge and intent; to rebut any defence of innocent intent or association.

[51] According to the Crown, the similarity between the incidents, and therefore the strength of their connecting factors include the following:

• Proximity in time of the similar acts: a) there is only a difference in 3 years between the incidents.
• Similarity of details, including: a) T.J. was under influence or had consumed drugs or alcohol; b) T.J. indicated a romantic interest in both of the complainants; c) neither complainant had indicated a romantic interest in T.J.; d) both complainants had consumed alcohol; e) both complainants were tired as a result of consumption of alcohol; f) both complainants asked T.J. to stop but he refused; g) both complainants had initially encountered T.J. in social settings; h) both complainants were females and T.J. had a romantic or sexual interest in them.
• Number of incidents: a) one each.

[52] In summary, the Crown argues that the similar fact allegations are very probative. T.J. was convicted of similar conduct against another female in very similar circumstances. According to the Crown, the main test is the objective improbability of an accused being implicated in both incidents. In this case, with no connection between the two incidents, it is objectively improbable to attribute to coincidence that T.J. would be implicated in two separate incidents so temporally close in time and under such similar circumstances. The Crown submits that this is very probative to the issue of whether the actus reus occurred and reflects positively on the credibility of A.V. when her allegations are so similar to those of S.W., an individual who she previously had no connection to. Attributing this to coincidence is objectively improbable.

Disposition of Similar Fact Application

[53] The difficulty I have with the Crown’s position is twofold.

[54] Firstly, one important distinction between the two cases is that in the first case, involving S.W., there is no evidence that S.W. was interested in having a relationship with T.J., whether that be a friendship or a sexual/romantic relationship…in fact, when it came to engaging in a sexual encounter she chose K.B. over T.J. In this case involving A.V., the evidence speaks to the fact that she did want a relationship, notwithstanding her assertions to the contrary. A.V. accepted T.J. as a friend on Facebook, she entered his phone number in her contacts folder on her phone, she agreed to meet him at the school on July 13 and spent time with him there, she invited him to the dock the next day to swim and have drinks, she then invited back to her house where she asked her mother if he could sleep overnight, and when her mother refused she offered to walk him partway home and during the walk she entered an abandoned trailer with him. A.V. had only known T.J. for several days but by Saturday night she had sent a clear message that she enjoyed spending time with him and wanted some form of relationship with him, be that friendship or otherwise.

[55] Secondly, much of the similarity in the details of the two cases as set out by the Crown are of a generic nature. I would expect that alcohol consumption is an element in many sexual assault cases, as is an assertion by a complainant that she did not have a romantic or sexual attraction to the accused. I would expect as well that in many cases, the complainant and the accused had initially become acquainted in a social setting and that the accused person had indicated a romantic interest in the complainant which was not reciprocal. I also expect that the usual response by a complainant to any advances made against her by an accused is to ask the accused person to stop. Essentially, the generic nature of the similar facts has the effect of significantly lessening the probative value of the similar fact evidence.

[56] In this case, the issue of consent, or the lack of it, and the complainants’ credibility in relation thereto, is the crucial issue at this trial. The only conclusion that can be drawn from the earlier incident is that T.J. behaved abominably towards S.W. As a result, it would be far too easy for a trier of fact to believe the worst of T.J. in relation to A.V., after being informed of the facts in support of the earlier conviction. In my view, the potential of such evidence for distraction and prejudice is simply too great. This is precisely the sort of general disposition reasoning (moral prejudice) that the similar fact exclusion rule was designed to prevent. In summary, the probative value of the similar fact evidence is limited and in this case it is outweighed by its prejudicial effect.

[57] The similar fact application is therefore dismissed.

b) The Admission of Prior Consistent Statements

[58] C.D. testified that on the evening of the alleged assault she received a telephone call from A.V. who told her that T.J. had “raped” her. She was upset and crying, and C.D. was under the impression that she was “pretty intoxicated”.

[59] In her testimony A.V. confirmed that she had called C.D. on her way home from the trailer.

[60] The defence wishes to exclude this evidence, on the basis that A.V.’s statements to C.D. constitute prior consistent statements. As a general rule, such prior consistent statements are viewed as self-serving and lacking in probative value, and are therefore inadmissible.

[61] The Crown submits that the statements to C.D. should be admitted on the basis that their admission is intended to rebut a suggestion by the defence of a recent fabrication.

[62] In my view, the statements to C.D. should be excluded. A.V. testified that on the way to her home from the trailer she spoke by telephone not only to C.D., but also to her sister and to a former boyfriend. She confirmed that she told all of them that she had been “raped”. I find that A.V.’s statements that she was the victim of a sexual assault was consistent from the time of the trailer incident and thereafter, and that there is no evidence of recent fabrication. In the circumstances I cannot accept as evidence her statements to C.D. that she was raped as proof of their contents. Also, I cannot accept her statements to C.D. as evidence in support of her credibility. As was noted by the court in R. v. Divitaris (2004), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 28, “a concocted statement, repeated on more than one occasion, remains concocted”.

c) Analysis of Evidence

[63] I note at the outset that the Crown did not put forth an argument that any consent to the sexual activity by A.V. was vitiated due to her incapacity to provide such consent as a result of alcohol consumption. In essence, the Crown’s position is that A.V. did not consent to having sex with T.J. and had made it clear from the outset that she did wish to engage in sexual relations with him.

[64] Notwithstanding the fact that A.V. and T.J. provided distinctly different accounts of what transpired in the trailer, I find that they both presented as credible witnesses. Their testimony was given in a calm and considered manner, and I noted very few inconsistencies and discrepancies therein. They were both subjected to rigorous cross-examination, but the essence of their testimony remained unchanged throughout.

[65] Notwithstanding this observation, there are two areas of A.V.’s testimony which do raise questions in my mind about her credibility.

[66] Firstly, A.V. was unable to provide the court with a reason or an explanation for her decision to enter the abandoned house trailer with T.J. She could not have been motivated by curiosity…she testified that she had been inside the trailer previously. Also, she did not suggest that she was “talked into” or in any way coerced into entering the trailer by T.J.

[67] A.V. acknowledged that it was becoming dark outside when she entered the trailer, and she knew that she still had a 20 minute walk home ahead of her. She also knew that her parents would be expecting her home shortly. In the circumstances, I question why she decided to enter the trailer, and why she is now unable to proffer up a reason for entering the trailer with T.J.

[68] T.J. testified that A.V. initiated the visit to the trailer. His evidence suggests that she intentionally chose the privacy of the trailer to engage in sex with him before returning home.

[69] In her examination-in-chief A.V. testified that she had “no problem with her mother’s refusal to permit T.J. to spend the night” because she “did not want T.J. at her home that evening in the first place”. She testified that she did not like the way he talked to her parents…he was loud and obnoxious. She also stated that she was “pretty sure that he asked my dad for pot”.

[70] In my view, A.V.’s decision to walk T.J. partway home, for no discernable reason, followed by her decision to enter the trailer with A.V., especially at that late hour, is inconsistent with her testimony that she did not like T.J. Her refusal or inability to provide the court with a reason for entering the trailer with T.J. detracts from her credibility.

[71] The second area of concern I have about A.V.’s testimony is in relation to her conversation with her father. A.V.’s mother testified that after noticing how dark it was becoming she called A.V. on her cell phone, but did not receive an answer. She then called 10 to 15 minutes later and again no answer. Later, her husband called A.V. and A.V. returned his call, informing him that she was close to home, by the legion and would be home shortly. Notwithstanding the fact that the legion was only a several minute walk from her home, her mother testified that it was “quite a while” before A.V. returned home.

[72] Her mother’s testimony with respect to the phone call is consistent with the evidence of T.J., who testified that after they had engaged in sexual activities for about 30-40 minutes A.V. received a call from her father and informed him that she would be home soon. Immediately thereafter, she put her clothes back on and started her walk home, which was about a 20 minute walk.

[73] If I accept her mother’s evidence about the phone calls, which I do, I can only come to the conclusion that A.V. was not being candid with her father when she informed him that she was close to the legion, only minutes away and would be home shortly. Given the time it would have taken her to walk home from the trailer, it would appear that she was still in the trailer when she spoke to her father, but for some reason she did not want him to know this.

[74] In my view, A.V.’s response to her father does not appear to be the response of someone who has just been sexually assaulted and has been kept in the trailer against her wishes. It is more consistent with the response of someone who is attempting to conceal her activities and whereabouts from her parents.

Disposition

[75] T.J. has the benefit in this case of being presumed innocent, and this presumption remains with him unless the Crown can tender evidence on which a court can find him guilty beyond a reasonable doubt.

[76] In cases such as this, in which there are two demonstrably opposed versions of events put forth by the accused and the complainant, the Supreme Court has provided some guidance as to how trial judges and juries can go about determining issues of credibility. In R. v. W. (D.), [1991] 1 S.C.R.742, Cory J. suggests the following steps:

Firstly, if the trial judge believes the evidence of the accused, the accused must be acquitted. Secondly, if the trial judge does not believe the testimony of the accused but is left in reasonable doubt by it, the accused must be acquitted. Third, even if the trial judge is not left in doubt by the evidence of the accused, the trial judge must ask whether, on the basis of the evidence which is accepted, the trial judge is convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[77] In this case I find that both T.J. and A.V. generally presented as credible witnesses, notwithstanding the fact that A.V.’s evidence raised some questions and concerns in my mind. Also, there is an absence of available corroborating evidence to support the testimony of either of them. In the circumstances, although I am not prepared to find that I believe all of the evidence of T.J., his evidence does leave me with a reasonable doubt, and in the circumstances I must acquit him.

[78] I am therefore dismissing all of the charges against T.J.

E.J. Koke

Date: May 27, 2019