WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Court File No.: 16-1237
Date: December 21, 2017
Ontario Court of Justice
Between:
Her Majesty the Queen
-and-
Daniel Lauzon
Before: Justice Michael G. March
Heard on: December 21, 2016, January 10, 2017, May 5 & 17, 2017, October 13, 2017 and November 9, 2017
Reasons for Judgment released on: December 21, 2017
Counsel:
Natalie Castonguay — Counsel for the Crown
Marnie Munsterman — Counsel for the Accused
Judgment
March, M.G. J.:
Introduction
[1] The primary issue for determination in this case is whether the complainant, S.M., made a proper identification of the accused, Daniel Lauzon.
[2] Both Crown and defence counsel are agreed that the accuracy of the identification is determinative of the outcome.
Relevant Facts
[3] In September of 2014, S.M. began chatting over Facebook with a person named Daniel Lauzon. A photo accompanied the name associated to Daniel Lauzon's profile. S.M. testified that Mr. Lauzon persuaded her to take intimate photos of herself. The photos did not depict her face. She sent them to Mr. Lauzon.
[4] Mr. Lauzon threatened to post the photos publicly if S.M. did not meet him at the marina in Pembroke, Ontario. Out of fear that Mr. Lauzon would make good on his threat, S.M. bicycled to the marina. She was directed by a male present there, who she believed was Mr. Lauzon, to go to the lighthouse area. She did.
[5] The male instructed her to take off her clothes. She complied. The male then proceeded to have sexual intercourse with S.M.
[6] S.M. was so traumatized by the incident, she went back on Facebook when she returned home. She messaged that she was going to commit suicide. Her friends persuaded her not to do anything to hurt herself.
[7] S.M. did not complain to police until two years after the fact. Before she did, she saw Mr. Lauzon at a grocery store with her father, and at Walmart, with her parents. She was nervous, anxious and fearful on both occasions.
[8] Eventually, she disclosed to her parents, a friend and a teacher what had occurred at the marina.
[9] In June of 2016, the Facebook communications between S.M. and a person who she believed to be Mr. Lauzon, posing as one 'Brandon Antiraxi', resumed. For S.M., this was the tipping point. She went to police on June 9th, 2016.
[10] A police officer assumed control of S.M.'s Facebook account shortly thereafter. A meeting with Brandon Antiraxi was arranged through online Facebook chats. Mr. Lauzon, not Brandon Antiraxi, attended that rendezvous at the Dairy Queen located on the main street of Pembroke. He was arrested by police there on June 21, 2016.
[11] At trial, Mr. Lauzon denied he ever physically met S.M. He denied he used the pseudonym, Brandon Antiraxi. He denied he received intimate photos from S.M. at any point in time. He denied he sexually assaulted S.M.
Issues
[12] As earlier indicated, the issues for determination are:
Whether Mr. Lauzon's denial he ever actually met S.M. prior to her attendance at court is to be believed?
Whether Mr. Lauzon's denial raises a reasonable doubt?
Whether the Crown has proved beyond a reasonable doubt that Mr. Lauzon was the person who had extorted a meeting with and then sexually assaulted S.M. in September 2014?
The Law
Nude Photos, Extortion & the Meaning of Consent
[13] The decision of the Court of Appeal for Ontario in R. v. D.S. [2004] O.J. No. 2440 offers considerable guidance as to why the sexual assault, which is not in dispute, and which occurred in September 2014, is truly a non-issue in this trial. The Court explained the meaning of consent in the following paragraphs:
[45] . . . I agree with Crown counsel that on the admitted facts and factual findings of the trial Judge, consent to sexual intercourse within the meaning of s. 273.1(1) of the Criminal Code was not given by M.O. It follows, therefore, that the actus reus and the mens rea of sexual assault were established and the trial judge erred in law in concluding that the admitted incidents of sexual intercourse did not "amount to a sexual assault within the meaning of the Criminal Code". I reach these conclusions for the following reasons.
[46] In framing the issue before him, the trial judge assumed that M.O. agreed to have sexual intercourse with the respondent. At no point did the trial judge consider whether consent, within the meaning of that term under s. 273.1(1) of the Code, was actually given by M.O. Section 273.1(1), as I have said, defines "consent" to mean "the voluntary agreement of the complainant to engage in the sexual activity in question". No finding of such a "voluntary agreement" by M.O. was made by the trial judge.
[47] These omissions are understandable, given the way in which the case was argued at trial. In their submissions to the trial judge, counsel confirmed that the key issue concerned vitiation of consent and the trial judge proceeded on this basis. This approach misconceived the threshold question for determination, namely, whether M.O. consented to sexual intercourse with the respondent at all. Unless M.O.'s sexual activity with the respondent was consensual, the necessity of a s. 273.1(2)(c) analysis did not arise. Expressed somewhat differently, resort to s. 273.1(2)(c) of the Code was only required in this case if the trial judge found that M.O. had consented: see Hogg, supra, at paras. 8 and 10.
[48] In Ewanchuk, supra, the Supreme Court of Canada confirmed that proof of three elements is required to establish the actus reus of sexual assault: (i) touching; (ii) the sexual nature of the contact; and (iii) the absence of consent. The first and second of these are not in issue in this case. In the context of the actus reus of sexual assault, the third element, the absence of consent, is a subjective factor that is determined by reference to the complainant's subjective internal state of mind towards the sexual touching at the time that it occurred: see Ewanchuk at para.27.
[49] M.O. advanced a version of events in which she vehemently denied that she freely consented to the sexual acts in question. Throughout her testimony, she repeatedly stated her belief that she had no choice but to submit to intercourse with the respondent; that her purpose in going to the respondent's apartment (on both occasions) was to secure the deletion of the respondent's computer files containing the nude photographs so as to avoid their dissemination and the reputational injury that would follow; that she told the respondent during both attendances at his apartment that she did not want to have sex with him; that the respondent knew that she "fought him off"; and that he pressured her to engage in sex as a condition for the deletion of the computer files. On M.O.'s evidence, therefore, she did not wish the sexual touching to occur, and no actual consent to the touching was ever given.
[50] In R. v. Saint-Laurent (1993), 90 C.C.C. (3d) 291 (Que. C.A.), leave to appeal to S.C.C. refused [1994] C.S.C.R. No. 55, Fish J.A. emphasized that Parliament intended to criminalize coerced sexual activity. He said (at p. 311):
Mutual agreement is a safeguard of sexual integrity imposed by the state under the threat of penal sanction. In the absence of consent, an act of sex is, at least, prima facie an act of assault.
As a matter both of language and of law, consent implies a reasonably informed choice, freely exercised. No such choice has been exercised where a person engaged in sexual activity as a result of fraud, force, fear, or violence. Nor is the consent requirement satisfied if, because of his or her mental state, one of the parties is incapable of understanding the sexual nature of the act, or of realizing that he or she may choose to decline participation.
"Consent" is, thus stripped of its defining characteristics when it is applied to the submission, non-resistance, non-objection, or even the apparent agreement, of a deceived, unconscious or compelled will. [emphasis added].
[51] In this case, the respondent acknowledged that he "blackmailed" M.O. into having sex with him by threatening to disseminate the nude photographs of her if she did not do so; that he intended to have sex with M.O.; and that he knew that M.O. did not wish to engage in sex with him, "except for the reason of getting rid of those files".
[52] In R. v. Davis (1999), 139 C.C.C. (3d) 193, the Supreme Court of Canada held that the threat to expose nude photographs in order to gain sexual favours constituted the offence of extortion. Chief Justice Lamer, writing for a unanimous court, stated at para.45:
- Extortion criminalizes intimidation and interference with freedom of choice. It punishes those who, through threats, accusations, menaces, or violence induce or attempt to induce their victims into doing anything or causing anything to be done. Threats, accusations, menaces and violence clearly intimidate . . . When threats are coupled with demands, there is an inducement to accede to the demands. This interferes with the victim's freedom of choice, as the victim may be coerced into doing something he or she would otherwise have chosen not to do [citation omitted].
[53] The respondent's conduct in threatening to disseminate the nude photographs of M.O. if she did not engage in sex with him constituted extortion as defined in s. 346(1) of the Code. His threats to expose the photographs were coupled with demands for sexual favours. By his threats, he induced M.O. to accede to his demands for sex, thus interfering with her freedom of choice and coercing her into doing something that she clearly testified she would otherwise have chosen not to do.
[54] M.O. did not believe that the choice to decline participation in sexual intercourse with the respondent was available to her in the circumstances. It cannot be said, therefore, that she was knowledgeable about her options in the face of the respondent's admitted blackmail and that, being aware of her choices, she voluntarily agreed to sexual activity with the respondent. As Green J.A. of the Newfoundland Court of Appeal stated in Davis (1998), 159 Nfld. & P.E.I.R. 273 at para. 97:
At the least, the notion of consent in sexual assault encompasses the making of a conscious decision freed from external extortionate pressure that is intended by the very person seeking compliance to achieve contact which, but for that pressure, would not have been agreed to. I agree.
[14] S.M. gave an entirely credible account of why she went to the Pembroke marina in September 2014. She was mortified that naked pictures would be published on the internet by the person identifying himself as Mr. Lauzon. To prevent such an occurrence, she engaged in sexual intercourse with the man who asked her to meet him at the designated location. There was no freedom of choice left for S.M. to exercise. Indeed, in her evidence, she said, "I did not think I had any choice."
[15] A brief word about S.M.'s intellectual functioning is called for. Although S.M. was in Grade 10 in high school when the incident occurred, her mental age was much younger than her actual age of 18 years at the time. I had the opportunity to observe S.M. testify over the course of two separate days. She is very much 'child like' in her understanding of our modern world. To describe her as naïve is perhaps an understatement. Her collaterals characterize her behaviour and thought process as akin to someone between 10 & 12 years of age.
[16] In short, S.M. did not 'consent' in the legal sense to having sex with the man at the marina. She felt compelled to do so.
Assessing Credibility
[17] The accused, Mr. Lauzon chose to testify at his trial. Accordingly, a W.D. analysis applies. Firstly, if I believe the evidence of the accused, I must acquit. Secondly, if I do not believe the evidence of the accused, but it raises a reasonable doubt in my mind, I must acquit. Thirdly, even if I disbelieve the accused and his evidence does not raise a reasonable doubt, I must decide whether on the basis of the evidence in its totality which I do accept, I am satisfied that the Crown has proven the accused's guilt beyond a reasonable doubt. This three step process is well worn and has guided judges as triers of fact for over a quarter century in their assessment of credibility.
Identification Evidence
Naming the Assailant
[18] In R. v. H. (2007) MBCA 136, the Manitoba Court of Appeal assessed the treatment to be given to a complainant's ability to name an assailant. Scott C.J.M. held:
[43] One distinguishing feature between this case and many of the others referred to in this decision is that the complainant identified her assailant, David [H], by name. It is conceded that the accused is named David [H]. (The name [H] is not an uncommon one in northern Manitoba.)
[44] The authorities confirm that "mere identity of name affords some evidence of identity of a person." R. v. Chandra (1975), 29 C.C.C. (2d) 570 at 573 (B.C.C.A.) per McIntyre J.A., as he then was. However, in that case, which involved a question of the adequacy of the identification of the driver of an automobile involved in an accident, the court went on to observe (also at p. 573):
. . . When accompanied by other factors such as the relative distinctiveness of the name, or the fact that it is coupled with an address, or appears upon a licence or other document of significance, its weight is strengthened. The trier of fact when such evidence is before it, whether Judge alone or jury, must consider it, weigh it and reach its determination.
[45] More Recently, the Saskatchewan Court of Appeal in R. v. Zarubin, 2004 SKCA 14, 241 Sask. R 292, referred to the identification of the accused by name as "a piece of circumstantial evidence that may be considered, particularly along with other evidence, as probative of identity" (at para.19) (emphasis ended).
The Inherent Frailty of Eye Witness Testimony
[19] Misidentification by credible, but unreliable, witnesses has plagued the annals of the common law. It is perhaps the leading cause of wrongful convictions. In R. v. Bains (2008) O.J. No. 5429 (O.C.J.), Cooper J. observed:
[19] In R. v. Reitsma, [1998] 1 S.C.R. 769, the Supreme Court of Canada unanimously endorsed the dissenting judgment of Rowles J.A. in the British Columbia Court of Appeal, [1997] B.C.J. No. 2314. Madam Justice Rowles' entire decision was contained in the Supreme Court's judgment and at paragraph 38 she stated: "Judicial warnings about the inherent frailties of eye-witness identification abound. In R. v. Burke, [1996] 1 S.C.R. 474, Sopinka J., giving the judgment of the court, said: 'The cases are replete with warnings about the casual acceptance of identification evidence even when such identification is made by direct visual confrontation of the accused. By reason of the many instances in which identification has proved erroneous, the trier of fact must be cognizant of the "inherent frailties of identification evidence arising from the psychological fact of the unreliability of human observations and recollection': R. v. Sutton, [1970] 2. O.R. 358 (C.A.), at p. 368. In [R. v. Spatola, 1970}, 3 O.R. 74 (C.A.), Laskin J.A. (as he then was) made the following observation about identification evidence (at p. 82): 'Errors of recognition have a long documented history. Identification experiments have underlined the frailty of memory and the fallibility of powers of observation. Studies have shown the progressive assurance that builds upon an original identification that may be erroneous . . . The very question of admissibility of identification evidence in some of its aspects has caused sufficient apprehension in some jurisdictions to give pause to uncritical reliance on such evidence, when admitted, as the basis of conviction . . ."
[20] At paragraph 40 of her dissent, Rowles J.A. goes on to say as follows: "The conviction in this case rests entirely on the identification evidence given by the complainant. As in many cases of eyewitness identification, the honesty and integrity of the eye witness was not in issue. The jurisprudence of eyewitness identification makes clear, however, that testing the reliability of the evidence of identity goes beyond a determination of whether an eyewitness is being honest in his or her testimony."
[21] At paragraph 46 she said: "The Crown's case against the appellant depended wholly on the correctness of the identification evidence of the complainant. As there was no other direct evidence or any circumstantial evidence which would minimize the inherent dangers of eyewitness identification, the complainant's evidence requires careful scrutiny."
[22] Rowles J.A., in paragraph 58, further said: "The frailties of eyewitness identification may be most pronounced in cases where the accused was not known to the complainant before the offence and where the complainant's opportunity to observe the perpetrator was limited to a brief, stressful encounter."
[23] In R. v. Miaponoose, [1996] O.J. No. 3216, the Court of Appeal dealt with an appeal against a conviction for sexual assault based on eye witness identification. At paragraph 9 of the judgment, Charron J.A. states the following:
- "The inherent frailties of identification evidence are well known to the law and have been the subject of frequent judicial consideration and comment. We must, however, never regard these principles as trite. They are fundamental. They merit repeating. One of the many useful writings on this subject can be found in the Law Reform Commission of Canada Study Paper (1983) on "Pretrial Eyewitness Identification Procedures." The Commission concludes in its study that "the need for comprehensive police guidelines is particularly acute in the area of pretrial eyewitness identification procedures, because eyewitness testimony is inherently unreliable" (at p. 7)."
[24] In R. v. Quercia (1990), 60 C.C.C. (3d) 380 at 383 (O.C.A.), Doherty J. A. made the following observation: "The spectre of erroneous convictions based on honest and convincing, but mistaken, eyewitness identification haunts the criminal law."
The Guiding Principles
[20] Cacchione J. in R. v. Leeds (2013) N.S.S.C. 364 conducted a very helpful review of the leading cases dealing with identification evidence. His Honour summarized the principles to be borne in mind as follows:
[6] Both Crown and defence counsel acknowledged that the sole issue in this case is the identity of the perpetrator.
[7] The decision in this case essentially rests on whether Ms. Gautreau correctly identified the accused as the person she allegedly saw assault the deceased. It is for this reason that her evidence must be scrutinized with the greatest care. Observation and memory are often unreliable when it comes to the identification of people. It is an area where people often make honest mistakes.
[8] In cases where eyewitness identification is the foundation of the prosecution's case, special caution must be paid when relying on such evidence. This is because although an eye witness can be a convincing witness, because the witness honestly believes that the accused is the person that he or she saw committing the offence, the witness may be mistaken. The Court must also be aware that although identification evidence by one witness can support that of another, even a number of honest witnesses can be mistaken. It is incumbent upon the Court to examine closely the circumstances in which the identification by a witness or a number of witnesses came to be made and to take into account any weaknesses which appear in the identification evidence: Sophonow (No. 2), (1986), 25 C.C.C. (3d) 415, at 438-40 (Man.CA.).
[9] Eye witness identification cases involving the identification of a stranger heighten the alarm as to the well recognized dangers inherent in such evidence and the risk of a miscarriage of justice through wrongful conviction: R. v. Goran, 2008 ONCA 195, [2008] O.J. No. 1069 (C.A.) at para. 19. The Court in Goran went so far as to say that "…such evidence is inherently unreliable…": R. v. Cuming (2001), 158 C.C.C. (3d) 433 (Ont. C.A.) at para. 20; R. v. Quercia (1990), 60 C.C.C. (3d) 380 (Ont. C.A.) at 38. As the trier of fact dealing with eye witness identification evidence regarding a complete stranger I must be mindful that such identification evidence can be notoriously unreliable: The Queen v. Nikolovski (1997), 111 C.C.C. (3d) 403 (S.C.C.) at 411-412; Bardales v. The Queen, [1996] 2 S.C.R. 461 at 461; Burke v. The Queen (1996), 105 C.C.C. (3d) 205 (S.C.C.) at 224.
[10] It is of the utmost importance that the Court be cognizant of the danger of an honest but inaccurate identification especially in cases where the alleged perpetrator is previously unknown to the eye witness. The eye witness may be convincing and convinced of the identity of the perpetrator. That witness, as I have said previously, may also be mistaken. It is important that the Court recognize that it is the reliability and not the credibility of the eye witness which must be established: R. v. Alphonso, 2008 ONCA 238, [2008] O.J. No. 1248 (C.A.) at para. 5: ". . . certainly cannot be equated with reliability . . ."; In R. v. Goran (supra) at paras 26-27 the Court referred to the fallacy of mistaking certainty for accuracy. In the present case Ms. Gautreau has convinced herself that the accused was the perpetrator as evidenced by her testimony at trial that, "in my mind Ryan Leeds killed my boyfriend".
[11] A reason why special caution is necessary when examining eye witness identification evidence was aptly expressed by Doherty J.A. in R. v. Quercia (supra) at p. 383 where he stated: ". . .The spectre of erroneous convictions based on honest and convincing, but mistaken, eyewitness identification haunts the criminal law . . ." This Court is required to assess the quality of the eye witness identification evidence. The poorer the quality of such evidence, the greater the danger of a wrongful conviction: Mezzo v. The Queen (1986), 27 C.C.C. (3d) 97 (S.C.C.) at 108.
[12] If a witness has no previous knowledge of the accused person so as to make her or him familiar with that person's appearance, the greatest care ought to be used to ensure the absolute independence and freedom of judgment of the witness. The witness' recognition must proceed without suggestion, assistance or bias: Rex v. Smierciak (1946), 87 C.C.C. 175 (Ont. C.A.) at 177.
[13] In cases where the eye witness identification evidence is suspect, a Court must look for cogent confirmatory evidence in order to overcome the real risk of a miscarriage of justice taking place: R. v. Boucher et al. (2000), 146 C.C.C. (3d) 52 (Ont. C.A.) at 58.
[14] Eye witness identification evidence must be based on the independent recollection of the witness and not recollection arising as the result of discussions with and amongst various people. Such evidence may be compromised where an eye witness has discussed with others his or her recollection of the person's appearance before making an identification: R. v. Holden (2001), 56 O.R. (3d) 199 (C.A.) at p. 136-137. In some cases, the failure to mention distinctive characteristics of a suspect in an initial description to the police may be quite material to the reliability of the identification.
[15] The Supreme Court of Canada has described an in-dock or in-court identification as having an ". . .almost total absence of value as reliable positive identification . . . "; R. v. Hibbert (2002), 2002 SCC 39, 163 C.C.C. (3d) 129 (S.C.C.) at p. 146-147.
Analysis
Are Mr. Lauzon's Denials to be Believed?
[21] Mr. Lauzon testified that he has never met S.M. in person prior to attending court. He denied that S.M. ever sent to him provocative or naked photos of herself. In turn, he denied that he ever threatened to post any such photos. As a matter of logic, if believed, it would have been impossible for him to do so.
[22] An accused who comes to court with only the ability to deny essential elements of the offences with which s/he has been charged cannot be regarded too critically. Indeed, if the incident did not happen, quite often, how can s/he do anything but deny?
[23] A word at this juncture about Mr. Lauzon's intellectual functioning is also warranted. Mr. Lauzon was 27 years of age when he testified. In September 2014, of course, he would have been 24. He suffers from epilepsy. He started having seizures as a teenager. They could lead to a loss of consciousness. They came out of the blue.
[24] Mr. Lauzon, as a result of the damaging effect of his epilepsy on brain function, or for other more innate reasons, is by no means a sophisticated individual. He is brief and simplistic in his answers offered to questions put by defence and Crown counsel. He is easily confused. Indeed, he is an individual incapable of anything beyond mere basic understanding of questions with the slightest degree of complexity to them.
[25] An example of Mr. Lauzon's elementary nature is found early into his evidence-in-chief. His counsel asked:
Q. …Is it true that she sent you a picture and that you threatened to post that picture of her naked, if she did not send you further pictures?
A. Yeah.
Q. It is true? And – did I confuse you with that questions?
A. Yeah, a little bit.
Q. Okay. Perhaps, if I could rephrase that – so, you remember – I'll break it down for you. Ms. Michaud testified that in 2014 she sent you – that you asked her, and she sent you a naked picture.
A. Oh, no.
Q. Okay. And she testified that after sending that naked pictures, that you then threatened if she didn't send you more pictures, you would post that picture of Facebook for everyone to see. You're – you've got to answer out loud, Mr. Lauzon.
A. All right. No.
Q. Okay. Did Ms. Michaud send you any type of pictures, specifically to you, not what was posted on her account at any time?
A. No.
Q. Now, do you recall that Ms. Michaud testified back in 2014 that she met someone at the marina, and that person was you?
A. No.
Q. You don't remember her testifying to that?
A. I remember her testifying.
Q. Okay. So you're saying – when you say no, what do you mean, no?
A. I remember her testifying.
Q. Okay. So you do remember Ms. Michaud testifying that she met someone at the marina, and she said that person was you?
A. Yeah.
Q. Did you ever meet her at the marina?
A. No.
Q. Okay. Did you ever meet her anywhere else?
A. No.
Q. Did you ever sexually assault Ms. Michaud like she described?
A. No.
Q. Before coming to Court had you ever seen her in person?
A. No – yeah, in court, yeah.
Q. But, before coming to court . . .
A. No.
Q. . . .had you ever seen her in person?
A. No.
Q. Now, how long have you been in custody now, Dan, do you know, roughly?
A. No.
[26] Upon my assessment of Mr. Lauzon's evidence as a whole, and comparing it against the backdrop of all of the other evidence I do accept, I find I cannot believe Mr. Lauzon for a number of reasons.
[27] Firstly, Mr. Lauzon confirmed in re-examination that he did not have the best memory. Mr. Lauzon signed an Agreed Statement of Facts ("ASF"). He acknowledged in the ASF that he agreed with certain facts which would later provide the foundation for his conviction in respect of charges upon which he wished to plead guilty. This would thereby obviate any necessity for trial in respect of those counts. One would think that even a person of limited intellectual capacity such as Mr. Lauzon would remember a document of that significance, but initially he did not. I find that Mr. Lauzon's inclination is to refuse to acknowledge any wrongdoing, almost reflexively and instinctively, without any real regard for what is or is not true.
[28] Secondly, Mr. Lauzon admits to requesting S.M. to meet him at a coffee shop on the Main Street in Pembroke in 2014. He stated his purpose in doing so was just to get to know her, to talk to her and to be friends. He denied any sexual interest in S.M. I reject the notion that Mr. Lauzon's intentions were as platonic as he claimed. His Facebook posts prove otherwise.
[29] Thirdly, Mr. Lauzon denies that he used a profile under the name of Brandon Antiraxi. It is Mr. Antiraxi in June of 2016 who is messaging S.M. over Facebook telling her, amongst other things, "I need sex you. I want to fuck you. I want your cunt. Eat your cunt. Fuck your ass." It was Brandon Antiraxi who was threatening, ". . . to follow [S.M.'s ] sister home and hurt her," and "I'll kill them . . . kill your family." Mr. Lauzon denied he was Brandon Antiraxi. He denied sending to S.M. a picture of a ring. He did not remember asking her to " . . . meet at D.Q.". Yet when Mr. Lauzon is arrested, the police suggest a meeting at Dairy Queen in Pembroke in 20 minutes. There is only one D.Q. in Pembroke. Mr. Lauzon shows up on time. The coincidence is far too compelling. Mr. Lauzon was plainly posing as a person named Brandon Antiraxi. Mr. Lauzon agreed his photo was depicted in the Brandon Antiraxi profile in the Facebook account. It is inescapable for me to conclude anything other than Brandon Antiraxi was in truth Mr. Lauzon.
[30] Fourthly, and perhaps most importantly, when cross-examined, Mr. Lauzon denied he was going to D.Q. on the day of his arrest to meet S.M. His explanation for going to D.Q. that day is as ridiculous as it is false. When pressed by the Crown in cross-examination on the unlikely coincidence of going to D.Q. at that very moment, just because that was his habit, the following exchange occurred:
Q. And you indicated that you were arrested in 2016 at the Dairy Queen?
A. Yes.
Q. And you don't remember why you were going to the - the Dairy Queen?
A. Yeah, I remember why.
Q. Why were you going to the Dairy Queen?
A. I usually walk up and down the street.
Q. Okay. So, you were just going there, as you were walking up the street?
A. Yeah.
Q. Is that correct?
A. Yes.
Q. So, you weren't going there to meet Sam?
A. No.
Q. You didn't ask her to meet you . . .
A. No.
Do Mr. Lauzon's Denials Raise a Reasonable Doubt?
[31] For the reasons set out above for my rejection of Mr. Lauzon's denial that he ever actually met S.M. in 2014, I would repeat and adopt them for explaining why they do not raise a reasonable doubt in my mind. Mr. Lauzon's memory is not good. He did acknowledge proposing a past meeting with S.M. in 2014 to go for coffee. I firmly disbelieve his supposed good intentions as to his purpose for the meeting. The fact he would not even question S.M. about her failure to show at the Tim Horton's in 2014 is nonsensical. Frankly, the mechanics of the Facebook messaging leading to his arrest in June 21, 2016 is far too coincidental to be chalked up to happenstance and habit, as Mr. Lauzon would have me believe.
Extortion, the Identification of the Man at the Marina and Sexual Assault
[32] S.M. gave a straightforward account of why she went to the marina, as well as the physical appearance of the person with whom she had sexual intercourse there.
[33] S.M. recalled that the incident at the Pembroke marina occurred in September 2014. She first testified about the event on December 21, 2016 – over two years later. S.M. has been diagnosed with ADHD and a learning disability. She candidly stated in her evidence-in-chief, "I forget everything." However, she confirmed that she was telling the truth when she gave her video and audio recorded statement to police on June 9, 2016.
[34] Pursuant to s. 715.1 of the Criminal Code, I ruled on December 21, 2016, the first day of trial, that the content of that June 9th, 2016 statement was admissible. I held that it was properly adopted by S.M., and that it was made within a reasonable time following the occurrence.
The June 9th, 2016 Statement
[35] When S.M. reported the incident at the marina to police for the first time on June 9th, 2016, she was able to provide the name of her assailant. This constituted some evidence of the accused's identification being made out – the fact the complainant could name her assailant. S.M. explained she received a Facebook friend request from a Dan Lauzon. She believed she got the request "like two days" before school started in September 2014.
[36] Shortly after receiving the request from the person named Dan Lauzon, S.M. began messaging back and forth with him. He was quickly able to persuade her to send nude photos of herself. The threat to post those photos publicly compelled S.M. to meet Dan Lauzon at the marina.
[37] S.M. bicycled to the marina. She said she saw him walking there. He told her to go straight toward the lighthouse area. He then, as she put it, ". . . slept with me."
[38] In terms of the description she was able to provide police, it was rather scant in detail. She thought:
a) he was wearing jeans and a shirt, but she does not remember colours; and
b) he had a beard, but now he has it shaved.
[39] Her motivation for coming forward to police was as a result of Dan Lauzon using different names for Facebook. He was doing this in attempts to get S.M. to talk to him.
[40] She explained that one such name he was using was "Brandon Antiraxi": She told police, "Brandon Antiraxi" is actually Dan Lauzon.
[41] When asked by police how she knew that, she responded, "Because he [Brandon Antiraxi] showed me a picture whenever he first [texted me]. Police showed to S.M. the photo "Brandon Antiraxi" sent. S.M. then confirmed that that was the selfsame person who sexually assaulted her.
[42] S.M. further told police that last night (i.e. June 8, 2016), Dan Lauzon using the Brandon name, demanded that she go see him. He was threatening if she did not go, he would hurt her or her sister. S.M. thought if she did not tell, and if he found out where she lived, then something bad would happen. Her father told her it was time to go to the police.
S.M.'s Testimony – December 21, 2016
[43] S.M. first testified about the marina incident on December 21, 2016. When questioned about whether she remembered what she said in the June 9th, 2016 statement she gave to police, she answered, "No, not really. I forget everything," and "It's been so long." Nevertheless, S.M. did confirm she was telling the truth when she gave the statement.
[44] In spite of her self-criticism regarding the quality of her memory, S.M. gave a fairly detailed account in her evidence of the layout of the marina area where the sexual assault occurred. She explained she went there because if he posted her nude photos, it would have ruined her reputation. He told her to go to the lighthouse area, down where the dirt is near the water. He had been walking toward the washrooms. She saw him immediately. She walked with him. He told her to take her clothes off. He started kissing her. She did not like it. She did not kiss back. There was "bush like trees" in the area.
[45] When her clothes were off, she laid on her back. He was right in front of her. She gestured her arms were crossed and covering her breasts. She did not remember how her legs were. He was kissing her face, mouth and her bottom part. She could not say how long the sexual act lasted, but it felt like a long time because she did not like it.
[46] She did remember that he had a beard. That was all she could remember because she was looking at his face. As she put it, ". . .basically he was kissing me and all I could see was his face."
[47] It ended when he got up and he put his "dick" back in his pants. She got dressed and just left. No words were exchanged. She was shaking. She cried as she was biking away.
[48] When she got home, she was so depressed she was posting herself crying on Facebook. She said she wanted to end her life.
[49] She thought that if she went to the cops, she could get in trouble. Someone told her at school, if she went to the police, she could get charged.
[50] Under cross-examination, when S.M. was reminded of her self-proclaimed memory problems, she asserted, ". . .something like this, I would not forget. . .something like this is kind of like traumatizing."
[51] She explained she did not report the incident two years ago because a bunch of kids at school and her sister told her she [S.M.] could end up getting charged. She did not understand why she could get in trouble, but she was worried about going to the police.
[52] In S.M.'s mind, she had school and wanted to focus on it. She was worried about exams. She had, in her words, ". . .too much on my plate." She did not want to deal with courts and any of that.
[53] S.M. was direct and very much to the point when asked about how she knew who she was meeting when she went to the marina. She had the photo from his Facebook page. She then saw him at the marina. He was also the only other person there at the marina at the appointed time.
[54] S.M. confirmed that the person she met at the marina had a long beard. She could not remember the colour, but she was positive he had a beard. It was the first thing she noticed about his face when she met him. She thought as well that his Facebook picture at that time had a beard as well, but she was not sure.
[55] She was clear that the person who assaulted her had a beard. She was focussed on his face. She saw it. She could not remember the exact time of day of the meeting, but it was still daylight. She remembered feeling the beard when he kissed her.
[56] She recalled he touched her boobs with his hands while she was laying down. She did not say anything when he put his penis inside her. She did not push him away. She was embarrassed and upset to be naked in public.
The Recalling of S.M.
[57] The Crown brought an application on May 5, 2017 to recall S.M. upon being notified by the defence of the intention to make a motion for a directed verdict. I granted the Crown's motion and permitted S.M. to be recalled. Essentially, the Crown, with the filing of the ASF had been lulled into a false sense of security. It did not, in fairness, appear to be a matter in dispute that Brandon Antiraxi was Daniel Lauzon. With my ruling that the June 9, 2016 statement made by S.M. to police was admissible under s.715.1 of the Code and with S.M.'s assertion that Brandon Antiraxi was actually Daniel Lauzon, the Crown, with good reason, believed that the accused's identity was not in issue. Accordingly, the Crown was permitted to recall S.M. to attempt to have her establish the identity of her assailant at the marina as the accused before the court.
S.M.'s Evidence When Recalled on May 17, 2017
[58] When recalled by the Crown, S.M. confirmed that at the time she first began communicating via Facebook with Daniel Lauzon in September 2014, his picture was on the side where his name was set out. The picture showed Daniel Lauzon with a beard. She stated that the physical traits she was able to observe from the photo included:
a) bushy eyebrows;
b) eyes of an unknown colour; and
c) a caveman-like appearance.
There was only one picture associated with the Daniel Lauzon Facebook profile.
[59] When comparing that photo with the person she met at the marina, S.M. explained that she was only paying attention to his eyes and eyebrows. She did not remember what he wore. She described his face as having:
a) pimples – a bit of pimples;
b) bushy eyebrows; and
c) a beard.
The beard S.M. gestured while testifying was 6 to 8 inches below the man's chin.
[60] The Crown then pointedly asked S.M.:
Q. Okay. And how do you recognize Mr. Lauzon at the marina being the person on Facebook?
S.M. responded:
A. Because I recognized his face. I know what his face looks like. It's the exact same face as the person that was at the marina.
[61] She added that the person at the marina looked like a caveman similar to the photo on Facebook she saw associated with Daniel Lauzon's profile. In short, it was the same person whose picture she saw on Facebook and who she later met at the marina.
[62] The next time S.M. saw Daniel Lauzon was when she was Christmas shopping at Walmart with her parents. She panicked. At that time, he had no beard, but his face was the same. He had big eyebrows and pimples. She placed this chance encounter as occurring sometime last year.
[63] Daniel Lauzon contacted S.M. again using a different name, Brandon Antiraxi. She didn't think it was a normal name, so she asked for a picture. She obtained one. Again, she panicked when she received it. The photo depicted a male with bushy eyebrows and no beard. She explained she did not want to see him again. She recognized the male as the same one at the store [Walmart] and at the marina from two years previously.
[64] For its very limited value, S.M. was able to make an 'in dock' identification of Daniel Lauzon. She described his physical attributes in court that day as having:
i. bushy eyebrows,
ii. eyes,
iii. pimples, and
iv. short hair.
[65] S.M. was later shown the Facebook profile picture of the person purporting to be Brandon Antiraxi, which was sent to her on June 8, 2016. She recognized that photo as one of Daniel Lauzon. She said, "Yeah, that's him." She identified the person in that photo (Exhibit 5) as the man she met at the marina in September 2014. She was asked about the similarities between the photo and the man at the marina. She stated:
i. bushy eyebrows,
ii. the eyes, and
iii. the pimples.
[66] Under cross-examination, S.M. agreed initially with defence counsel's suggestion that her memory of things dating back to June 2014 was not very good, but then corrected herself. She offered that she was trying to forget the incident at the marina.
[67] Later, she explained that she recognized his face because he started communicating with her again in 2016. She said she went to police because, "I recognized his face since 2014." She added that she recognized him as the same person who was sending her messages back then.
[68] When further pressed about the location where she had her chance encounter with Daniel Lauzon, she clarified that it was at Moncion's, a local Pembroke supermarket, where she saw him on another occasion. The first chance encounter was at Walmart around Christmas 2014. On neither occasion at Walmart or Moncion's did Daniel Lauzon have a beard.
The Positive Identification
[69] S.M. had no doubt that Daniel Lauzon's photo matched the person she met at the Pembroke marina in September 2014. She was reluctant to go to police at the time. She thought she might be charged if she did. Kids at school were telling her that, as was her sister.
[70] It must be remembered that S.M. does not function intellectually like someone of 21 years. She is quite child-like. She behaves like a 10 or 12 year old.
[71] Notwithstanding, she was convinced that the person who had sexual intercourse with her at the Pembroke marina in September 2014 was Daniel Lauzon. Equally, the person who was posing as Brandon Antiraxi in June 2016 was clearly in her mind Daniel Lauzon. Her limited ability to describe the physical attributes of the person who harassed her, and ordered her to attend at the marina, does not detract from her certainty as to who that person was. That person was Daniel Lauzon. Based on observing S.M. testify and describe her assailant, I have absolutely no doubt she was accurately describing and positively identifying Daniel Lauzon.
[72] Mr. Lauzon denied he could ever grow a beard of 6 to 8 inches in length. I have only his word on that issue – not that any confirmatory evidence is called for from the defence. Although one would think it would be readily available from one of his family members.
[73] Frankly, I do not place great weight on S.M.'s estimate of the beard length of the man with whom she had sex at the marina. What is most important is that she connected Daniel Lauzon from his Facebook photo as the man who she met at the marina. She already had a face to the name before she got to that pre-arranged rendezvous. Furthermore, the man at the marina behaved in a manner perfectly consistent with what S.M. would have expected. Without much ado, he directed her to a secluded area where he could have sex with her. The dangers with and the inherent frailties of eye-witness evidence are not the same in such a situation.
[74] S.M. saw Daniel Lauzon again at Walmart and Moncion's over the passing months and years since the September 2014 incident. She did not forget his face. She never did.
Conclusion
[75] Upon a careful and considered review of the totality of the evidence, I find that S.M. positively identified Daniel Lauzon as the man who persuaded her to send to him nude pictures of herself. I have no doubt Mr. Lauzon extorted her attendance at the Pembroke marina in September 2014 in order to have sexual intercourse with her out of her fear that he would publicly post nude pictures of her if she did not go. No true consent was obtained from S.M. by Mr. Lauzon before engaging in sexual activity with her.
[76] There was never an instant where S.M. doubted who the man at the marina was. Having carefully listened to her evidence and having objectively assessed it, nor do I.
[77] Accordingly, Daniel Lauzon is guilty of both counts of extortion and sexual assault upon which he has been tried.
The Honourable Justice M. March