Court Information

Ontario Court of Justice

Date: 2018-11-30

Court File No.: Brampton 17-Y727-92

Between:

Her Majesty the Queen

— and —

J.W.

Before: Justice Hafeez S. Amarshi

Heard: August 20-22, 2018

Oral Judgment Released: October 19, 2018

Written Reasons for Judgment Released: November 30, 2018

Counsel

C. Presswood — counsel for the Crown

A. Karapancev — counsel for J.W.

Restriction on Publication

Identification Ban – See the Youth Criminal Justice Act, sections 110(1) and 111(1). No one may publish any information that may identify a person as having been dealt with under the Youth Criminal Justice Act.

No one may publish any information that may identify a child or young person as being a victim or witness in connection with an offence alleged to have been committed by a young person.

Judgment

H.S. Amarshi J.:

A. Introduction

[1] J.W. is charged with two counts of sexual assault in relation to the same complainant on April 25 and June 2, 2017. He is further charged with unlawful confinement.

[2] After the complainant J.M.N. testified, the Crown reasonably invited this court to acquit J.W. of the sexual assault and unlawful confinement counts arising from an incident on June 2. Of some relevance, there were multiple young persons involved in the June 2 incident and they have pled guilty of sexual assault prior to the commencement of this trial.

[3] The Crown elected to prosecute these charges by indictment. J.M.N. testified outside of the courtroom via a video link with a support person present during her testimony.

[4] The incident that is the focus of this trial involves allegations of a sexual assault in a park in Brampton.

B. Relevant Evidence

(i) The Evidence of J.M.N.

[5] The complainant is 14 years old and attends and lives with her parents and siblings.

[6] J.M.N. testified that she has known J.W. since November 2016 when she moved into the same housing complex in Brampton.

[7] The complainant describes an incident in the spring of 2017 when J.W. propositioned her for sex. She declined. The complainant was with friends and walked to a nearby park. The young person followed her. It was dark.

[8] She describes being forced to have sexual intercourse against a fence in a park in the housing complex they shared. That J.W. pulled her pants down, penetrating her vaginally from behind. She was adamant that she did not consent to the sex act and told J.W. to stop. He persisted.

[9] After the sexual assault she went home. She did not tell her mother about the incident but may have told her half-brother.

June Incident

[10] Although the sexual assault and unlawful confinement charges from June 2017 were dismissed against J.W. at the mid-point of this trial, the evidence related to this incident is relevant to credibility findings in relation to J.M.N.

[11] The complainant described a second incident in an apartment stairwell involving this young person. She testified that J.W. called her over to speak. Although she had misgivings, she relented. J.W. was with friends. She was propositioned for sex by A.K. – a friend of the young person. She declined and walked away. She was followed by at least three males. It was daylight, a short time after the end of the school day.

[12] She testified that she was steered into a building lobby and then onto an elevator. She tried to run. The elevator stopped on the fifth floor and again she tried to run down the stairs, but was cornered by A.K. She was ultimately led to a stairwell landing on the 12th floor of the building.

[13] She was sexually assaulted by A.K. She testified that J.W. did not assault her but was present.

[14] After the incident in the stairwell the complainant went to a friend's house. She returned to the housing complex in the evening. She was again called over by a group of five or six males including J.W. and A.K. and propositioned for sex.

[15] She declined and walked away. She describes having her hand grabbed and being steered towards the same building lobby from the incident earlier in the day. Again, she attempted to run away, but testified she was blocked by the group of males, either standing in front of her so she couldn't turn or behind her so she couldn't exit the lobby.

[16] She was again taken against her will to the 12th floor landing, where she is sexually assaulted, forced to give three males oral sex. She is pinned against a wall. A portion of the assault is captured on a cell phone video. J.W. did not participate according to the complainant. He is present in the video sitting some distance away on a stairwell landing.

[17] The complainant's mother is alerted to the sexual assault by one of J.M.N.'s classmates. She confronts the males in the stairwell. They run from the scene and exit the building.

[18] J.M.N. also runs and heads to downtown Brampton before ultimately returning home. She spent a portion of that time with one of the males from the stairwell.

[19] At her home, police attend and begin an investigation. J.M.N. provides a videotaped statement two days later.

(ii) Evidence of J.W.

[20] The young person was 14 at the time of the April 2017 incident. He lives in the same housing complex as J.M.N. and lives with his mother and brothers.

[21] Testifying in his own defence he said he first met the complainant at her high school when he was going to pick up his niece one afternoon. He would periodically see J.M.N. at the basketball courts close to his home.

[22] He denied assaulting her sexually in the spring of 2017 in the park. He admitted during cross-examination in March of that year to receiving oral sex from J.M.N. at her house, which he says was consensual. He testified that a friend of his also received oral sex from the complainant that day at her house. He further admitted to being in the stairwell during the June 2017 sexual assault, but he says he did not participate.

[23] He testified that he has never had sexual intercourse with the complainant and the events in the park as described by the complainant did not occur. He agreed there was a fence in the park and it was in close proximity to his home.

C. Legal Principles and Analysis

[24] This is a case where there are two versions of events as told by the complainant and J.W. They differ substantially. The complainant alleges J.W. sexually assaulted her in a park near her home, by having intercourse with her against her will. J.W. denies this occurred or that any sexual activity took place as described by J.M.N. in the spring of 2017.

[25] It is well-established that the evidence of a complainant does not require corroboration in order for a conviction to follow. Although the threshold is high, the evidence of a complainant alone if found to be credible and reliable can be sufficient to establish a charge beyond a reasonable doubt.

[26] The central issue therefore in this case is the credibility and reliability of the complainant's evidence. As Justice Feldman noted in R. v. Hooching, 2007 ONCA 577, "The evidence of any witness, may be believable standing on its own, but when other evidence is given that is contradictory, or casts doubt on the accuracy or reliability of the witnesses' evidence, that evidence may no longer be believable."

[27] In this case the surveillance video undermines the credibility of the complainant. Contrary to her evidence, the video shows J.M.N. following a group of males in the apartment lobby. She is neither blocked nor surrounded by the young men as she described in her evidence. She testified that their collective stance was such that she wouldn't be able to flee from the lobby area. That is not the case, indeed if she wanted to flee or attempt to exit the lobby that would have been possible from the vantage point of the surveillance video. There was no-one behind her and she was trailing the group of males.

[28] I appreciate the video only captures a few moments of the interactions that took place that evening in June, but it undermines J.M.N.'s credibility and it impacts the weight I can attach to her evidence from the April incident she described.

[29] In addition, there were inconsistencies in her evidence. She described an encounter in April prior to the sexual assault in the park, where she was aggressively propositioned to have sex in a car in a nearby parking lot by one of J.W.'s friends. She testified that J.W. was not there when that occurred. However, in her video statement to police shortly after the June incident she describes J.W. as also being there at the time she is propositioned. When confronted with this inconsistency J.M.N. denied making such a statement to police, although it is clear she did.

[30] There was an additional inconsistency related to the specific sex acts that occurred in the park. Her evidence was different from what she told police occurred in the park and her testimony at trial, although she was consistent in the detail that J.W. vaginally penetrated her from behind. She was also inconsistent in the number of people who were in the park and observed the sexual assault. In her police statement she suggested it was multiple people, while in her evidence at trial stating it was one person who was present – a friend to J.M.N.

[31] It is the cumulative effect of these inconsistencies when all of the evidence is considered that undermines this Court's confidence in the complainant's credibility. In particular the video evidence is fatal.

[32] Given this conclusion I won't devote much time on the W.D. analysis, but I have made certain conclusions.

[33] Although I had difficulty with some aspects of J.W.'s evidence I found him to be credible. He candidly testified to what he described was a consensual sexual encounter with the complainant, a month before the April allegation of sexual assault. In that encounter the young person comes across as a cavalier and thoughtless young man who persistently pursued J.M.N. for his own sexual gratification. He describes laughing with his friend as they left the complainant's home after they both received oral sex from J.M.N. In J.W.'s world the complainant was an object and on at least one occasion he tried to facilitate sexual relationships with her and other males from the neighbourhood.

[34] Although I found the young person to be a difficult witness and needlessly argumentative while being cross-examined, I found his evidence in relation to his consensual sexual encounter with the complainant credible. He readily acknowledged the encounter and provided a significant level of detail about his previous interactions with J.M.N. even when it reflected poorly on him.

[35] Even though I accepted parts of J.M.N.'s evidence as being believable, I cannot conclude J.W.'s evidence specifically as it relates to the allegation of non-consensual sex in the park is to be rejected. It remains unclear what happened that evening in April.

[36] When I consider the Crown's evidence against this young person, especially given my concerns with the complainant's credibility I cannot conclude beyond a reasonable doubt that he sexually assaulted J.M.N. and accordingly I find J.W. not guilty.

H.S. Amarshi J.

Footnotes

[1] Contrary to section 297(1) of the Criminal Code.

[2] Contrary to section 279(2) of the Criminal Code.

[3] Re: Sections 486.1 and 486.2. The defence consented to the Crown's application that the trial proceed in this manner.

[4] Specific details related to the location of the housing complex and major intersection have been omitted, given the connection both parties have to this community and potential for inadvertent identification.

[5] See R. v. Khela, 2009 SCC 4 at para. 2.

[6] R. v. Hooching, 2007 ONCA 577 at para. 15.

[7] I found J.M.N.'s evidence credible when she testified that J.W. would call her over to proposition her for sex and introduce others to her for the same purpose.