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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 14, 2018
Court File No.: Hamilton Information No. 17-6913
Between:
Her Majesty the Queen
— AND —
D.N.
Before: Justice J.P.P. Fiorucci
Heard on: June 13, 2018
Reasons for Judgment released on: August 14, 2018
Counsel:
- J. Vincelli, counsel for the Crown
- L. Wilhelm, counsel for the accused D.N.
FIORUCCI J.:
INTRODUCTION
[1] D.N. and T.S. started dating in January of 2013. They began residing together sometime between February and April of 2014. T.S.'s three children from a previous relationship also resided in the home. Mr. D.N. and T.S. have a daughter together, A.S., who was born on […], 2014. The couple married on August 22nd, 2015. The relationship ended on or about May 25th, 2016 when the Children's Aid Society (C.A.S.) began investigating allegations that Mr. D.N. and T.S. had both abused the children. The couple would not live together again. In June of 2016, both Mr. D.N. and T.S. were criminally charged in relation to the child abuse allegations.
[2] Within approximately a month of these child abuse charges being laid against Mr. D.N. and T.S., T.S. began to tell the C.A.S. worker that she had been in an abusive relationship with Mr. D.N.. On February 1st, 2017, a resolution was reached in the criminal proceedings against Mr. D.N. and T.S.. Within a week of the disposition of the charges, the C.A.S. advised T.S. that it would be closing its file. Mr. D.N. would be free to pursue sole custody of A.S., and T.S. knew that Mr. D.N. intended to do so.
[3] On February 10th, 2017, T.S. contacted the police. On that day, she provided a statement to police in which she made allegations that Mr. D.N. had assaulted her at various times during their relationship. Mr. D.N. was arrested and charged based on this February 10th statement to police. T.S. did not mention any incidents of sexual assault during her police statement on February 10th, 2017. However, in response to a questionnaire the police reviewed with T.S. at the conclusion of her interview, T.S. mentioned being sexually assaulted by Mr. D.N.. The police arranged a follow-up interview with T.S. to investigate the sexual assault allegation.
[4] T.S. attended for the follow-up interview with police on February 22nd, 2017. During this interview, she made an allegation that, sometime between January 1st, 2016 and February 29th, 2016, Mr. D.N. sexually assaulted her by forcing anal intercourse upon her in their bedroom on one occasion.
[5] Mr. D.N. was charged with sexual assault. He entered a plea of not guilty to sexual assault and the trial proceeded with only T.S. giving evidence. The Crown did not proceed with any of the assault charges. The entire weight of the prosecution rests on the evidence of T.S., which requires an assessment of the credibility and the reliability of T.S. as a witness.
ANALYSIS AND ISSUES
T.S.'s Evidence Regarding Her Relationship with Mr. D.N. and the Sexual Assault
[6] T.S. testified that one Saturday, sometime between January 1st, 2016 and February 29th, 2016, Mr. D.N. left for work at 10:00 a.m. He was a barber at a local barbershop. T.S. was at home with the four children when Mr. D.N. telephoned her in the beginning of the afternoon, a couple of hours into his shift. Mr. D.N. was very upset. T.S. was unable to recall the specifics of what was said during this telephone conversation, except that Mr. D.N. said he was "tired of people fucking him up the ass". Mr. D.N. stated that he was on his way home.
[7] Within ten minutes of the phone call, Mr. D.N. arrived home. T.S. was downstairs on the main floor of the home when Mr. D.N. arrived. He was still very upset. T.S. described Mr. D.N. as being "visibly angry". T.S. could not recall what Mr. D.N. was upset about, but the "main statement he was saying" is how he was always being taken advantage of, and he was "tired of people fucking him up the ass."
[8] Mr. D.N. "very sternly" ordered T.S. to go upstairs into the bedroom. T.S. described how Mr. D.N. walked about one to two steps behind her, very close, to ensure that she would do as she was told. T.S. was afraid. She did not want to go up to the bedroom because on prior occasions when Mr. D.N. was upset, he would order her to go "somewhere enclosed" and would physically harm her.
[9] As they were going up the stairs, Mr. D.N. continued to express his anger about being taken advantage of, and verbalized several times how he just keeps "getting fucked up the ass" by everybody, how nobody respects him, and how he was tired of it. He also said "I'm going to show you what it feels like to get fucked up the ass so that you know too". T.S. stated that, at this point, she became very emotional and started crying because she didn't know exactly what he was going to do. She did know that he was going to hurt her, but she didn't know how.
[10] When T.S. and Mr. D.N. arrived at the top of the staircase, they went into the bedroom. Mr. D.N. shut the door of the bedroom behind them, and stood in front of the door, blocking the entire doorway, which was the only means of entering or exiting the bedroom. The couple was face-to-face. At the time, T.S. was 5'2" tall and weighed around 100 pounds. Mr. D.N. was 5'11" tall and weighed about 210 pounds.
[11] Mr. D.N. continued to very angrily say "now I'm going to show you what it feels like to get fucked up the ass". He then grabbed T.S. by the shoulders, turned her around, and threw her onto the bed so that she was face down on the bed. Mr. D.N. then pulled T.S.'s pants down, got on top of her, and penetrated her anally. T.S. couldn't move because Mr. D.N.'s whole body was on top of her and her hands were tucked underneath her.
[12] T.S. described how she was crying a lot while Mr. D.N. penetrated her anally. T.S. was crying very heavily. She was making audible noises and her tears were visible. According to T.S., although she wasn't hysterically crying, it was enough that Mr. D.N. would have noticed. T.S. continued to cry throughout the two to three minutes that Mr. D.N. anally penetrated her.
[13] T.S. testified that, when Mr. D.N. anally penetrated her with his penis, it was very painful, and it felt almost as if she was being torn open. T.S. was in pain, was afraid, and felt helpless during this two to three minutes. She wanted Mr. D.N. to stop but was helpless to get away or do anything. She was also afraid that, if she did or said anything, he would become more upset and hurt her "on a higher extent".
[14] Mr. D.N. stopped the attack on his own. T.S. does not believe that Mr. D.N. ejaculated because there was no residue. Once Mr. D.N. stopped the anal penetration, he pulled his pants up from his ankles and said "now you know what it feels like to get fucked up the ass". He said this in an angry and very aggressive tone. Mr. D.N. then let himself out of the bedroom and went downstairs. T.S. heard the door open and assumed that Mr. D.N. left to go back to work. T.S. continued crying for an hour to two hours after the anal penetration had stopped.
[15] T.S. testified that she did not want Mr. D.N. to anally penetrate her, nor did she want to engage in any sort of sexual relations with him at that time.
[16] That evening, around 7:30 p.m., when Mr. D.N. returned home from work, there was very minimal conversation between the two of them. T.S. testified that Mr. D.N. would have just gone straight upstairs to the bedroom and she would have gone upstairs to "remedy the situation" because that's just what was expected of her. T.S. testified that, whenever there had been any argument between the couple, or anything that would be upsetting to Mr. D.N., she would have to beg for forgiveness and give him attention every minute of the day.
[17] Accordingly, when he returned from work that day, she begged for Mr. D.N.'s forgiveness. Although T.S. could not recall what initially happened on that day for the situation to escalate to the point of the unwanted anal penetration, she was begging Mr. D.N. to please forgive her, asking him "can we start over again, can we please just continue to have a good day". T.S. testified that it was typical for Mr. D.N. to threaten to leave her, and she would then have to beg him not to because that's what he wanted her to do. Based on prior experiences, T.S. felt that if she did not beg for forgiveness and try to fix things, Mr. D.N. would get more upset, and would hurt her. There was no discussion about the sexual interaction that had happened earlier that morning.
[18] T.S. testified about prior occasions that Mr. D.N. had physically harmed her. She described how he would order her to go to the bedroom, or the basement or somewhere enclosed, and he would physically harm her. She recounted that there were several occasions where he choked her and hit her. Such incidents of a physical nature with Mr. D.N. would occur approximately a couple of times a month. If T.S. ever stood up to Mr. D.N., or didn't do as he said, it would get worse; he would get more angry and hurt her more. T.S. described how Mr. D.N. would blame her for everything that went negative in his life.
[19] T.S. claimed that, on one occasion, in March or April of 2014, when she was pregnant, Mr. D.N. choked her to the point that she blacked out, and woke up on the ground. On another occasion, in July or August of 2014, Mr. D.N. punched T.S. on the leg and it affected her walking.
[20] In or around April or May of 2016, Mr. D.N. shoved her on her chest so hard that she had to seek medical attention. She attended the Juravinski Hospital in Hamilton one to two days after the assault. She was in pain for a couple of weeks as a result of this assault.
[21] T.S. was cross-examined extensively. The cross-examination exposed areas of concern with respect to T.S.'s credibility as a witness, and the reliability of her sexual assault complaint.
Additional Details Provided at Trial That Were Not Mentioned in T.S.'s Police Statement
[22] T.S. claimed that when she was interviewed by police on February 22nd, 2017, she was being truthful and accurate, and gave the police one hundred percent of the details pertaining to the sexual assault incident. T.S. agreed with Defence counsel's suggestion that her memory of the sexual assault would have been fresher at the time she gave her statement to police than at the time of giving her evidence at trial.
[23] In cross-examination, however, T.S. acknowledged that she did not tell the police, on February 22nd, 2017, that she was crying throughout the incident. She conceded that this was an important detail that she did not mention to police when she gave her statement. In fact, she agreed with Defence counsel's suggestion that she told police that she did not say anything during the incident, and that she led the police to believe that she was somewhat quiet during the assault. In re-examination, T.S. stated that the police did not ask her if she was crying during the incident. She went on to say that, because it was her first time coming forward, and it was difficult to speak about the incident, she was just trying to give the police "very minimal and just state just what had happened".
[24] T.S. conceded in cross-examination that, when she provided her police statement, she also did not mention the fact that Mr. D.N. followed very close behind her up the stairs to the bedroom. T.S. acknowledged that this was an important detail that she failed to mention to police. She tried to explain her omission of this fact in her police statement by saying the following: "At the time, I just- I wasn't fully prepared when I went in. Like, I just did my best to recall what had happened at that point in time". In re-examination, Crown counsel asked T.S. whether the police had questioned her about how close Mr. D.N. was to her when she was ascending the staircase to the bedroom. T.S. replied that the police had not asked her this.
[25] T.S. acknowledged that her police statement of February 22nd, 2017 also did not include the detail she recounted in her trial testimony regarding Mr. D.N. closing the door behind them when they arrived in the bedroom, and blocking the doorway of the bedroom. T.S. acknowledged that this too was an important detail that she neglected to mention to police. When confronted about not having told the police this detail at a time when her memory of the incident should have been fresher, T.S. stated, "at the time, I just said everything I remembered then".
[26] At trial, when Defence counsel suggested to T.S. that she remembered three new details "today" that did not appear in her police statement a year and a half earlier, T.S. responded, "yeah, it wasn't today. It's just over time. Yes". This response by T.S. suggests that her recollection of the incident evolved over time. Furthermore, this explanation is inconsistent with T.S.'s trial testimony that she didn't tell police about the crying because she was just trying to give the police "very minimal and just state just what had happened".
[27] Defence counsel pointed out to T.S. that, on February 22nd, 2017, the police officer specifically asked her what happened after the sexual assault but T.S. did not tell the officer that she continued crying for another one to two hours. T.S. stated that she was just very specific with the officer by saying that Mr. D.N. returned to work.
[28] The Ontario Court of Appeal has held that "one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath". One of the ways in which inconsistencies may emerge is "from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions".
[29] What is troubling about T.S.'s evidence is that she gave a more detailed version of the sexual assault incident in her trial testimony than she originally provided to police in her February 22nd, 2017 statement. She presented as a witness who was comfortable providing additional details about the incident at trial, and attempted to explain it away by stating that she was either trying to give police "minimal" details, was not "fully prepared" for the police interview, or remembered the additional details "over time". This places me in the dilemma described by the Ontario Court of Appeal of trying to decide whether or not I "can rely upon the testimony of a witness who has demonstrated carelessness with the truth". T.S.'s value as a reliable witness is diminished by the discrepancies between her police statement and her trial testimony, and her inconsistent explanations for these discrepancies.
False Complaint Under Oath in January of 2014
[30] The most damaging attack upon T.S.'s credibility occurred when she was questioned about a police report she made in January of 2014.
[31] Throughout her trial testimony, T.S. portrayed her relationship with Mr. D.N. as an abusive relationship. She testified that Mr. D.N. made threats that if she went to the authorities, something would happen to her.
[32] On January 19th, 2014, T.S. made a call to police about an assault. At the trial, she testified that she made this call to police because it was the first time Mr. D.N. had assaulted her. That's not what she told police during the January 19th, 2014 telephone call. During this call, when police specifically asked her whether Mr. D.N. was the perpetrator of the assault, she said no.
[33] At trial, T.S. claimed that she did not disclose Mr. D.N. to be the perpetrator at that time because she was fearful of threats he had made to her. When pressed in cross-examination about the fact that there would have been no reason for Mr. D.N. to threaten her before that, since it was the first time anything had happened, T.S. stated, "that was the first time it was at a high intensity, like, to the point that I was terrified and called the police, but that was the reason why I did not report his name, because he had already previously threatened me. And he had a level of control on me by then". T.S.'s evidence was no longer that January 2014 was the first time Mr. D.N. had assaulted her, but that it was the first time that he had assaulted her "at a high intensity".
[34] When pressed further about what Mr. D.N. would have threatened her about before January 2014, T.S. stated "he just always told me if I ever, like, went to the police, that he had friends that were cops". No longer was the basis for the threats that Mr. D.N. would harm her, but rather that he had friends who were police officers.
[35] On January 19th, 2014, in the telephone call with police, T.S. stated that an ex-boyfriend had assaulted her. At trial, she testified that she gave a false statement and "a non-existent name of…a person" to protect herself based on the threats she had received. If T.S.'s explanation for not disclosing Mr. D.N.'s name as the perpetrator is accepted, it means that she misled the police in her January 19th, 2014 telephone call, possibly causing the police to embark upon an investigation based upon her false statement. If T.S.'s fear of Mr. D.N. was, in fact, the cause of the false statement to police, it would perhaps be understandable.
[36] However, even if her explanation is true, T.S.'s deception did not end there. A few days after the January 19th, 2014 call to police, she voluntarily attended the police station to provide a sworn statement to police regarding the alleged incident. She acknowledged in cross-examination that no one, including Mr. D.N., forced her to attend at the police station to provide this sworn audio and videotaped statement. Before providing this sworn statement to police, police warned T.S. that if she lied or misled the police, she could be charged with perjury. Then, while under oath, T.S. told police that the perpetrator of the January 2014 assault upon her was a man named "Tommy". T.S. spoke at length about Tommy in her statement. She said that she had met him at a bar and she explained why her friends didn't know about him, and the relationship she had been having with him.
[37] At trial, T.S. testified that everything she told police in her sworn statement about the January 2014 assault was a lie, even though she knew at the time that the police were investigating the matter, she had been warned about the potential criminal consequences of lying, and she understood that she did not have to provide a statement at all. Her trial evidence was that she concocted a story which she provided to police under oath. Again, T.S. claimed that she lied under oath out of fear for her safety, and to protect herself.
[38] T.S.'s evidence in this area is troubling. Firstly, there does not appear to have been any reason for her to concoct a story to protect herself at that point. She had not identified Mr. D.N. as the perpetrator of an assault. Mr. D.N. was not forcing her to attend at the police station; she attended there voluntarily.
[39] T.S. has admitted to deliberately breaching her oath to tell the truth in January 2014, notwithstanding the potential criminal consequences that had been explained to her at the time, and the possibility that her statement could prompt the police to embark upon an investigation based upon false information. Although there appears to have been no credible reason to continue to mislead the police, T.S. made a conscious decision to concoct a story and continue with a false report to the police. By her own admission, T.S. has shown herself to be a witness who, on a prior occasion, was prepared to disregard her oath to tell the truth, which makes it difficult to accept her evidence given under oath at this trial.
[40] Perhaps T.S. did not identify Mr. D.N. as the perpetrator of an assault in January 2014 because he did not assault her. However, in the circumstances, it is difficult to decipher what, if anything, happened in January 2014, nor am I called upon to make that determination. The only certainty that arose from this line of questioning is T.S.'s admission to having lied under oath which, in my view, strikes a fatal blow to her credibility and reliability as a witness, and to this prosecution.
[41] T.S. testified that January 2014 was the only occasion that she lied to a person in authority to protect her best interests. When questioned whether she was certain that it was just once that she had lied to a person in authority, she replied, "that I recall. That-yes". However, further cross-examination of T.S. revealed that there were other occasions.
The C.A.S. and Police Investigation into Child Abuse in May and June of 2016
[42] In May of 2016, C.A.S. commenced an investigation into child abuse allegations made against T.S. and Mr. D.N.. The relationship between T.S. and Mr. D.N. ended at that point. The couple ceased living together, and did not reside together thereafter. T.S. acknowledged that she knew custody of and access to A.S. would become an issue because Mr. D.N. had made it clear to her that he would be seeking sole custody of A.S..
[43] On May 25th, 2016, a C.A.S. worker, Megan Takacs, interviewed T.S. in relation to the child abuse allegations, and specifically complaints by the children that T.S. and Mr. D.N. had hit the children with a belt for discipline. During this interview with Ms. Takacs, T.S. denied her involvement in the disciplining of her children. T.S. acknowledged in cross-examination that this denial was a lie. Furthermore, T.S. conceded that she perpetuated this lie when she voluntarily attended at the police station, on June 8th, 2016, to be interviewed by Detective Pauls of the Hamilton Police Service regarding the child abuse allegations. T.S. admitted that when she told Detective Pauls that she never used a belt on her children, she was lying. This provides further proof of prior untruthful conduct, which has a bearing on the reliability of T.S. as a witness in these proceedings.
[44] In both her May 25th, 2016 interview with the C.A.S. worker and her interview with Detective Pauls on June 8th, 2016, T.S. denied that her relationship with Mr. D.N. was an abusive one. In fact, she characterized her relationship with Mr. D.N. as "great" when she spoke with Ms. Takacs. When she was specifically asked by Detective Pauls whether there were any physical fights or altercations between them, she denied that there ever had been, even when Detective Pauls pressed her on this issue.
[45] T.S. now says that she lied to Ms. Takacs and Detective Pauls about her relationship with Mr. D.N., even though, by that time, they had separated and Mr. D.N. was subject to conditions not to attend at the home. Again, these statements to Ms. Takacs and Detective Pauls are either further proof of prior untruthful conduct, or are prior inconsistent statements regarding the nature of her relationship with Mr. D.N., which affect T.S.'s reliability as a witness. It is difficult to rely upon a witness who has demonstrated carelessness with the truth.
Timing of the Complaint and Motive to Lie
[46] A sexual assault complainant's failure to come forward at the time of the events must not be the subject of any presumptive adverse inference. In assessing the credibility of a complainant, "the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case". Standing alone, a delay in disclosure will never give rise to an adverse inference against the credibility of a complainant. The existence of a potential motive to lie is a relevant consideration in the assessment of credibility.
[47] In June of 2016, both T.S. and Mr. D.N. were criminally charged with assault in relation to the child abuse investigation. Their relationship was at an end, and T.S. was aware of Mr. D.N.'s desire to seek sole custody of their child, A.S.. When the criminal charges were pending, A.S. continued to reside with T.S.. T.S. acknowledged that she knew that a history of domestic violence was a factor that C.A.S. considered when assessing an abusive parent's claim for custody and access to a child. She also acknowledged that, when the criminal child abuse charges were laid, she was afraid of losing custody of her children.
[48] Despite numerous previous denials of any domestic violence in the relationship, within a month of the relationship ending, and the child abuse charges being laid, T.S. started to tell the C.A.S. worker that her relationship with Mr. D.N. had been an abusive one. She conceded that following her disclosure to the worker, the C.A.S. started to treat her with more sympathy, and assisted her with accessing resources, such as a lawyer for the criminal proceedings.
[49] The disposition of the criminal charges on February 1st, 2017 prompted the C.A.S. to remove the condition that Mr. D.N.'s access with A.S. be supervised. On February 7th or 8th, 2017, the C.A.S. advised T.S. and Mr. D.N. of its intention to close the file. T.S. acknowledged that she was aware that Mr. D.N. was, at that time, free to pursue sole custody of A.S., had indicated to her his intention to pursue full custody of A.S, and that she wanted full custody of A.S. for herself.
[50] T.S.'s telephone call to police to report the abusive relationship with Mr. D.N. followed shortly thereafter, on February 10th, 2017. The sexual assault allegation does not appear to have been at the forefront of T.S.'s consciousness at the time she gave her police statement on February 10th, 2017. She only disclosed the sexual assault complaint in response to a questionnaire she was presented with after the fact, which prompted the investigation of the sexual assault complaint and the February 22nd, 2017 police interview.
[51] On November 14th, 2017, pursuant to a Superior Court of Justice, Family Court Order, T.S. was granted sole custody of A.S.. The Order included a term that Mr. D.N.'s access with A.S. was to be supervised by a professional third party supervisor. T.S. testified that this supervised access condition was suggested by C.A.S. because of Mr. D.N.'s outstanding criminal charges.
[52] In the circumstances of this case, including the concerns I previously outlined with respect to the credibility and reliability of T.S. as a witness, the timing of the complaint and T.S.'s motive to fabricate provide further bases to approach her claim of having been sexually assaulted with caution.
[53] Not only did T.S. stand to gain an advantage in her quest for sole custody of A.S. by instituting criminal charges against Mr. D.N., but it appears that she did, in fact, succeed in gaining the support of the C.A.S. in her custody/access dispute with Mr. D.N. due to the outstanding criminal charges alleging domestic violence. Furthermore, the "historical" allegation of sexual assault was made very shortly after the pathway was clear for Mr. D.N. to pursue his stated desire for sole custody of A.S.. This "historical" allegation of sexual assault was made by T.S., a witness who admitted under oath to having previously lied to police, under oath.
CONCLUSION
[54] The Supreme Court of Canada set out a suggested jury charge in R. v. Lifchus with respect to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt:
The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty.
What does the expression "beyond a reasonable doubt" mean?
The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.
[55] Mr. D.N. did not testify and did not call any evidence in his defence. No adverse inference can be drawn from an accused's decision not to testify or lead evidence.
[56] No corroboration is required for a conviction in a sexual assault case. However, where there is only the sworn evidence of the complainant, "measured against a very exacting standard of proof", it requires the court to determine whether the evidence is of "sufficient quality and force to establish the accused's guilt beyond a reasonable doubt". Having instructed myself in accordance with the criminal standard of proof set out in R. v. Lifchus, I find that the evidence of T.S. does not prove Mr. D.N.'s guilt beyond a reasonable doubt.
[57] The foundation upon which the Crown sought to establish Mr. D.N.'s guilt beyond a reasonable doubt was a witness who admitted to lying under oath in the course of a police investigation, who repeatedly denied that Mr. D.N. was abusive in any way until it was clear that he would seek sole custody of their child, who has asked the Court to believe that any previous denials of abuse by her were lies and that her testimony at trial regarding the abuse was the truth, and who described the sexual assault allegation with greater detail at trial than in her original historical complaint to the police. Based on the identified concerns with respect to the credibility and reliability of T.S.'s evidence, I am unable to find that the Crown has displaced the presumption of innocence. I find Mr. D.N. not guilty of the charge of sexual assault.
Released: August 14, 2018
Signed: Justice J.P.P. Fiorucci