Ontario Court of Justice

Date: 2018-07-19

Court File No.: Brampton 3111 998 17 15173

Between:

HER MAJESTY THE QUEEN

— AND —

WADE STEPHENSON

Before: Justice G.P. Renwick

Heard on: 19 July 2018

Reasons for Judgment released on: 19 July 2018

Counsel

R. Prihar — counsel for the Crown

M. Trenholme — counsel for the defendant Wade Stephenson

RENWICK J.: (ORALLY)

INTRODUCTION

Mr. Stephenson is charged with a single count of committing an indecent act. The trial took less than two actual hours of court time to complete. The complainant and a police officer testified for the prosecution while the defendant testified on his own behalf. The allegation is that Mr. Stephenson approached the complainant and her friend who were sitting in a Tim Horton's coffee shop and he lowered his pants and exposed his penis. The defendant admitted that he was present and the video recording shows he was near the two women, but he says he sat down momentarily to clear his head from a confrontation he had just had and then he left. The defendant denied that he ever exposed himself to the complainant.

GENERAL PRINCIPLES

The onus during a criminal trial begins and ends with the prosecution to prove the guilt of the defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial unless and until the court is satisfied that the charge has been proven beyond a reasonable doubt by admissible evidence. The prosecution's burden of proof never shifts during the trial.

I am aware that I can accept some, none, or all of what a witness says. I have reminded myself to treat the evidence of all witnesses the same. Specifically, I am not to subject the defendant's testimony to greater scrutiny because of his role in the proceedings. That would be unfair and it would completely undermine the presumption of innocence, which does not shift from the defendant unless and until the prosecution has proven the charge beyond a reasonable doubt.

This case raises credibility issues. Given this, I must apply the framework provided by the Supreme Court of Canada in R. v. W.(D.), [1991] S.C.J. No. 26, as it is now understood. I rely heavily upon the article written by Paciocco J.A. entitled, "Doubt about Doubt: Coping with W.(D.) And Credibility Assessment" found at 2017 22 Canadian Criminal Law Review 31. Justice Paciocco breaks down the W.(D.) principles into 5 propositions:

(i) I cannot properly resolve this case by simply deciding which conflicting version of events is preferred;

(ii) If I believe evidence that is inconsistent with the guilt of the defendant, I cannot convict the defendant;

(iii) Even if I do not entirely believe the evidence inconsistent with the guilt of the defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt and the defendant must be acquitted;

(iv) Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and

(v) Even where I entirely disbelieve evidence inconsistent with guilt, the defendant should not be convicted unless the evidence that is given credit proves the defendant's guilt beyond a reasonable doubt.

In the next part, I will outline some of the evidence and provide an assessment of the testimony, with references to specific pieces of the evidence. Although I may not refer to all of what a witness said, I listened to each witness carefully, I have taken detailed notes, and I have assessed the testimony of each witness for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and their ability to observe, recall, and communicate.

THE EVIDENCE AND FINDINGS OF FACT

I will make some general comments about the testimony of Elizabeth Murray, the complainant, which may explain why I believed her evidence. This witness presented as completely genuine, conscientious, credible, careful, and reliable. This witness was cross-examined and although the witness' testimony was not flawless, on the whole she was consistent and believable.

Ms. Murray was careful not to speculate or exaggerate her evidence. Her account was consistent throughout. It accorded with what is recorded in the video clips from the store's security camera (exhibit 1). Notably, she describes the position of the defendant as standing behind where her friend was seated and just off to the side. This appears to be where Mr. Stephenson walks when he goes off screen upon passing the complainant's table at 3 minutes and 13 seconds on the Sandwich Counter camera recording. Ms. Murray described the defendant's pants as low slung, that is to say, worn in a way that his boxer shorts could be seen below the waistband of his jeans. The defendant accepts that this is how he wore his pants that night.

Ms. Murray describes the defendant as having put his thumbs in the waist of his pants and simply pulling down his pants to reveal his penis. When she was cross examined on this point there was no inconsistency revealed with what she had told the police that night. As I say, Ms. Murray's evidence was consistent and plausible.

Ms. Murray was not asked nor did she volunteer any details about what she saw. Her evidence is silent on whether or not the defendant's boxer shorts were also lowered or they remained in place. Nonetheless, Ms. Murray was certain about what she saw. The lighting, as depicted in the store video surveillance images is good, and she is a mature adult woman who I expect would know the difference between looking at clothing and a man's penis.

I believe Ms. Murray's account of what she saw and how things occurred, but that is far from the end of my analysis.

The Defendant testified. He was very hesitant as a witness. I do not know Mr. Stephenson and cannot say whether or not his apparent hesitancy is an artefact of testifying in a public court or a regular characteristic of his public persona. I suspect it is the former. The defendant also appeared to be believable in his denial of what took place. As the Crown rightly noted in her closing address, there was no single grand flaw in his evidence which would cause me to reject it as untrue.

Nonetheless, I do have a problem accepting the defendant's bare denial as accurate for several reasons:

1. The defendant's account of why he was there is implausible; from the time he passes the women and goes off-screen until the time he leaves that area (3:13-3:35) is 22 seconds. If clearing his mind, calming down, or finding a safe spot until the "coast was clear" were any of the goals of the defendant when he went into that area of the restaurant, he could hardly have achieved his aim in 22 seconds;

2. The defendant says he sat down, but admits that what Ms. Murray may have seen was him adjusting his pants. Again, this does not make sense. If he were sitting, how would he adjust his pants and how would she see anything that would even cause her to have any concern; providing this alternative explanation for what Ms. Murray may have seen was gratuitous and incredible;

3. We can see more than half of the so-called alcove area on the Sandwich Counter video. There are two tables across the walking area opposite where the women sat and two tables apparently on the side closest to the counter where the women sat. I note that the table where the women sat is obscured by the frosted glass partition beside their table, but it is obvious that they were seated there and another table appears to exist in the back corner of that alcove, although it is only partially visible through a gap where the frosted glass partition ends and the wall begins. At no time does the defendant appear to sit at the back table behind Ms. Murray's friend; and

4. The video evidence contradicts Mr. Stephenson's account in a material way: at 3:13 on the video the defendant has passed the women and goes out of view along the wall separating the alcove seating area from the employee section past the sandwich counter. He says he sits down, but at 3 minutes and 22 seconds we see part of his jacket moving in and out of the gap between the wall and the frosted glass partition several times until 3:28. At 3 minutes and 30 seconds we see Ms. Murray react to what she claims she saw. She rises. The defendant is still seen partially moving his white jacket and at 3:33 he begins to leave the area. The problem I have with the defendant's version of events is his jacket is moving in and out of view above the height of the counter in the gap between the partition and the wall. If the defendant were seated the whole time, as he claims he was, we would not see this movement of parts of his jacket at this height.

I reject Mr. Stephenson's evidence as untrue. It does not accord with common sense, Ms. Murray's conflicting account, which I accept as true, or the video evidence. However, this is not the end of the analysis.

I must still determine if I am left in a state of reasonable doubt on the basis of the evidence which is given credit.

This is a strange event. It is very brief. Ms. Murray does not appear to know the defendant, nor does he appear to know her. I accept that in times of stress people can experience situations differently from others and their ability to perceive events, remember events, and communicate their observations may be distorted by the stress of the event, or other cognitive, psychological, or environmental processes or obstructions. In this case, Ms. Murray was relaxing with a friend.

The video tape suggests that what she says about seeing Mr. Stephenson's penis could have taken place between 3:22 and 3:30 on the video. This is about 8 seconds. This is a long period of time. Her face revealed that she was shocked and that is what apparently caught the attention of her friend.

Although 8 seconds can be a brief period of time, I would expect it to take most people less than 1 second to recognize when they see someone exposing their genitals in public at such a close range, when the person is not moving and the lighting is good. I accept that Ms. Murray had no doubt about what she saw over several seconds at the distance of a few feet, in the lighting conditions present, when she had been in a relaxed state and she has no apparent reason to attribute such bizarre behaviour to a complete stranger. I do not accept that Ms. Murray has simply made an incredibly large mistake. She was looking right at the defendant who was standing a few feet from her and facing her. I have absolutely no doubt that she saw what she says she saw.

CONCLUSION

On all of the evidence, I am not left in a state of reasonable doubt and I find that the Crown has proven that Wade Stephenson committed an indecent act and accordingly, I find you guilty as charged.

Released: 19 July 2018

Justice G. Paul Renwick