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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: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, 212, 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
Ontario Court of Justice Date: August 13, 2018 Location: Scarborough - Toronto
Parties
Between: Her Majesty the Queen
And: Damion Felone
For the Crown: C. Coughlan For the Defendant: M. Chernovsky
Heard: March 12, May 11 and 29, 2018
Reasons for Judgment
RUSSELL SILVERSTEIN, J.:
A. INTRODUCTION
[1] Mr. Felone is charged with a single count of sexual assault on B.L. It is alleged that, sometime between October 24 and 31, 2015, Ms. L. called him in order to buy some drugs from him, which she had done before. He is alleged to have come over to her apartment with the requested crack cocaine, sold it to her, and then sexually assaulted her in her bedroom.
[2] The trial began as a preliminary inquiry, but after the completion of the complainant's evidence in chief, with the consent of the Crown, Mr. Felone re-elected to be tried by me.
[3] The Crown called only one witness, Ms. L. The accused called no evidence.
[4] The only issue is whether the testimony of the complainant proves the alleged offence beyond a reasonable doubt.
B. THE EVIDENCE
(a) The testimony of Ms. L.
[5] Ms. L. is a 36 year old stay-at-home mother with a six month old child. Since the age of 12 years Ms. L. has suffered from drug addiction. According to her, her lengthy criminal record from 2000 to 2006 is a result of that addiction. She got clean in 2007 but relapsed in 2011, not regaining her sobriety until 2016.
[6] In October 2015, while addicted, she lived with her son in the same apartment building as Mr. Felone, who occupied an upstairs unit. She knew him as Marlon Keys. Mr. Felone was one of Ms. L.'s cocaine suppliers.
[7] One night in late October, 2015, Ms. L. returned home from a get-together at her uncle's home where she had consumed four or five beers. Upon returning to her apartment at around 4:00 a.m., she called Mr. Felone on her cell phone to ask him to deliver some crack cocaine to her. Her father, who was high on drugs, was sleeping on the couch outside her bedroom.
[8] Mr. Felone eventually arrived and accompanied Ms. L. into her bedroom, which is where she routinely conducted her drug transactions. According to Ms. L., after a quick exchange of money for cocaine, the details of which she cannot recall, she and Mr. Felone moved towards the door to her bedroom when he suddenly bent her over the dresser near the door, lifted her black skirt and inserted his penis in her vagina. She did not consent to this sexual activity and told him several times to stop. After just a few thrusts he finished, went to the bathroom adjoining her bedroom, then left. Ms. L. neither felt nor saw any semen and believed, because she heard the toilet flush, that he must have been wearing a condom.
[9] After the assault, Ms. L. smoked the crack cocaine that Mr. Felone had delivered and went to sleep. She woke up around noon the next day.
[10] According to Ms. L. she texted the accused on several occasions after the incident seeking an apology. The accused responded by text threatening to kill her if she said anything to anyone about the incident. Ms. L. testified that she had changed her phone number and that the threatening texts could thus no longer be retrieved.
[11] Cross-examination of Ms. L. revealed the following:
Ms. L. decided to complain to police after speaking to a social worker and getting clean. She first told the police about the sexual assault in August, 2016, after she had been drinking.
One of the reasons she went to police was because of the accused's threats.
When she did complain to police, the alleged sexual assault was not the first thing she complained of. She first told them about a fraud that she claimed had been perpetrated against her by another individual.
Although in her testimony she claims she did so, she did not tell police about the threats she testified she received from the accused. (Mr. Coughlan, for the Crown, has admitted this fact.)
Ms. L. professed no recollection of the details of her conviction for robbery in November of 2004, for which she received a four month sentence after having served three months of pre-sentence custody.
She admitted to lying to various courts on several occasions during her six-year period of steady criminality (June 2000 – August 2006).
C. ANALYSIS
[12] Mr. Felone is presumed innocent. Whether the Crown has succeeded in displacing this presumption by proving the offence alleged against Mr. Felone beyond a reasonable doubt comes down to this: After applying reason and common sense to the evidence before the Court, am I sure that Mr. Felone sexually assaulted Ms. L.? R. v. Lifchus, [1997] S.C.J. No. 77 at para. 39. This in turn comes down to a careful examination of the credibility and reliability of Ms. L.'s testimony.
[13] In my view, this is not a case where the delay in reporting the alleged crime is relevant to Ms. L.'s credibility. Nor is the fact that when she did report it she did so only after first complaining of another crime she said was committed against her by someone else. While in some circumstances a delay in reporting and the context of the complaint may be relevant to the credibility of a complainant's allegation that he or she was a victim of a sexual assault, there is nothing about the circumstances of the alleged sexual assault in this case that would make that so. There are myriad reasons why, even if the alleged sexual assault did indeed take place, Ms. L. might not have complained immediately, nor mentioned it first in her eventual approach to the police. To attribute these characteristics of her complaint to possible fabrication would be to speculate. R. v. D.D., 2000 SCC 43, [2000] S.C.J. No. 44 at para. 65; R. v. Kiss, 2018 ONCA 184, [2018] O.J. No. 1011 (C.A.) at para. 101.
[14] Ms. L.'s credibility and reliability stand to be evaluated primarily on the basis of (1) the cogency of her testimony, (2) how her testimony compares to earlier accounts and, (3) her history of deceit, if any.
[15] Ms. L.'s account of the alleged offence was not particularly detailed, yet I do not find this curious in the circumstances. Nor was her account at all improbable on its face.
[16] I am, however, quite troubled by the inconsistency between Ms. L.'s account at trial and her account to police. She testified about some rather serious threats levelled at her by the accused after the alleged assault. She further testified that the threats were a significant motivation for her to report the crime to the police. Yet, she made no mention to the police of these alleged threats. It was not until shortly before the preliminary inquiry was to begin that she told the police about them. This calls into question the truth of her allegation of threats. It raises the real possibility that the allegations of threats are embellishments. She testified that she received threatening texts yet, there is an absence of any evidence to support this allegation.
[17] I am further troubled by Ms. L.'s history of lying in the context of her dealings with the criminal justice system. While there is no evidence that her lies to the courts during her criminal heyday were during testimony under oath, her willingness to lie during the court process is nonetheless a serious blemish on her credibility.
[18] I also doubt the credibility of Ms. L.'s assertion that she has no memory of the details of the robbery she was convicted of in 2004. If she is telling the truth on that issue and forgets the details because she was an addict at the time, and thus likely under the influence of cocaine when she committed the offence, or shortly thereafter, this casts a shadow on the reliability of her testimony regarding the alleged sexual assault, which also took place at around the same time as she was ingesting cocaine.
[19] I have a reasonable doubt as to the credibility and reliability of Ms. L.'s testimony concerning the alleged offence.
D. CONCLUSION
[20] In the result I find the accused not guilty.
Released on August 13, 2018
Justice Russell Silverstein