Ontario Court of Justice
Date: September 19, 2019
Between:
Her Majesty the Queen
— and —
Christopher Heard
Before: Justice P. Downes
Heard on: June 10, 11 and 12, 2019
Reasons for Judgment released on: September 19, 2019
Counsel
Mr. P. Scrutton — counsel for the Crown
Mr. G.R. Clewley — counsel for the defendant Christopher Heard
NOTE
These proceedings are subject to an order under s. 486.4(1) of the Criminal Code. Any information that could identify the victims of any offence shall not be published in any document or broadcast or transmitted in any way.
P. DOWNES J.:
1. OVERVIEW
[1] Christopher Heard is a 23-year veteran of the Toronto Police Service. In the fall of 2015, he was a road sergeant supervising constables patrolling 52 division in downtown Toronto. This division includes the geographic area commonly known as the Entertainment District because of the high concentration of bars and night clubs it contains. At night, and especially on weekends, it is a busy and crowded neighbourhood where crime and disorder are commonplace.
[2] In the early morning of September 24 and again on November 1, 2015, Sgt. Heard offered a ride home to two young women leaving bars in the Entertainment District. Both accepted that ride because it was being offered by a police officer. Both allege that on the short ride to their home Sgt. Heard sexually assaulted them by fondling their upper inner thigh area.
[3] Sgt. Heard agrees that he gave both women a ride. He says he was merely trying to look out for them and ensure their safe passage home. He denies that he touched them in any manner. He says that their allegations are false, contrived, or imagined, and motivated by a dislike of the police.
[4] The pivotal issue at this trial is whether the sexual touching alleged by these two women, S.F. and M.N., happened. If Sgt. Heard touched them in the manner they described, there can be no dispute that it was both non-consensual and sexual in nature.
[5] I will first review some of the essential legal principles governing my assessment of the evidence. I will then summarize the relevant evidence before turning to my analysis and findings as to whether the Crown has proved these charges beyond a reasonable doubt.
2. LEGAL PRINCIPLES
[6] Sgt. Heard is, of course, presumed to be innocent of the charges. There is no burden on him to prove anything. That burden always rests with the Crown, unless and until it proves an accused's guilt beyond a reasonable doubt. In the final analysis, the verdict must derive from whether, based on the whole of the evidence, I am left with a reasonable doubt as to the accused's guilt.
[7] As I have said, the core issue is whether the Crown has proved beyond a reasonable doubt that Sgt. Heard touched S.F. and M.N. Crucial to the determination of that issue is the credibility and, to a certain extent the reliability of both complainants. Is their evidence sufficiently coherent, believable, and trustworthy that I can safely conclude that it is truthful and accurate?
[8] Sgt. Heard testified and his evidence must be weighed with the same scrutiny and fairness as every other witness. He is also entitled to the full weight of the Supreme Court of Canada's direction to trial judges in R. v. W.D. In other words, if I believe the evidence of Sgt. Heard that he did not sexually assault S.F. and M.N., then I must find him not guilty. If I do not believe his testimony, but am nonetheless left in reasonable doubt by it, he must similarly be found not guilty. Even if I am not left in doubt by his evidence, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of Sgt. Heard's guilt.
[9] It is important to emphasize that mere disbelief of the accused's evidence does not satisfy the burden of persuasion upon the Crown. In other words, it is an error to use disbelief of the accused's evidence as positive proof of guilt by moving directly from disbelief to a finding of guilt. A finding of guilt can only follow if I am satisfied on the totality of the evidence that there is no reasonable doubt as to his guilt.
[10] Where, as in this trial, witnesses give very different versions of events, it is a mistake simply to weigh them against each other and choose which one I prefer. That is the kind of credibility contest a trial judge must avoid because it undermines the presumption of innocence and the burden on the Crown to prove its case beyond a reasonable doubt. Every witness is entitled to a fair and even-handed assessment of his or her testimony based on logic, common sense, and human experience. Each person's evidence must be evaluated not in isolation but in light of the evidence as a whole.
[11] I can accept some, none, or all of a witness' testimony, always mindful that the case for the prosecution and the defence must be subjected to the same level of scrutiny. Fairness and balance are essential.
[12] The demeanour of a witness, while it may be a relevant factor, must not be over-emphasized. It is a notoriously unreliable measure of the accuracy of a witness' evidence. A court must be ever vigilant not to allow stereotypical notions of how a witness should behave in court to inform the assessment of that witness' evidence and, standing alone, demeanour can never suffice to establish guilt.
[13] Finally, the existence or absence of a motive by the complainant to fabricate is a relevant factor to be considered in assessing the credibility of that witness, always bearing in mind that there is no burden on the accused to prove a motive to fabricate on the part of a Crown witness. When considering the issue of motive, particularly where the Crown says that the complainants had no motive to fabricate the allegations, it is important to keep in mind the difference between a proven absence of motive and the absence of evidence of a motive to lie. Whereas proof of the absence of a motive of a witness to lie can be added to the weight of the testimony of the witness, the absence of proof of a motive to lie adds nothing to the credibility of the witness. As the Court of Appeal held in Bartholomew, "it is dangerous and impermissible to move from an apparent lack of motive to the conclusion that the complainant must be telling the truth. People may accuse others of committing a crime for reasons that may never be known, or for no reason at all."
[14] Where, as in this trial, the defence alleges that there is evidence suggesting a positive motive to fabricate, it is important to carefully examine that evidence to determine whether and to what extent it undermines the credibility of the complainant. As the Bartholomew Court noted, "From the defence perspective, proof of such a motive provides a compelling alternative to the truth of the allegations."
[15] These then are the key legal principles which must guide my assessment of the evidence at this trial in order to determine whether the Crown has proved these charges beyond a reasonable doubt.
[16] The Crown brought an application for me to treat the evidence of the two complainants as similar act evidence, one in relation to the other. I will return to that issue towards the end of these reasons.
3. SUMMARY OF THE EVIDENCE
[17] While I must assess the evidence as a whole and in context, I will nevertheless begin with a summary of each of the complainants' testimony. I will at the same time highlight the key defence evidence with respect to each of the allegations before turning to my analysis and assessment of the case.
[18] In addition to the two complainants and Sgt. Heard, two other witnesses testified at this trial: S.F.'s friend K.H., and the security guard at The Underground Garage, John Bakker. I will reference some of K.H.'s evidence later. While I will touch on it briefly in relation to his communications with M.N., it is my view that Mr. Bakker's evidence was of little significance to the issues raised.
a. September 23-24, 2015: the S.F. Complaint
[19] I turn first to the evidence of S.F. She testified that in September 2015 she worked in a small town north of Toronto, but lived in the west end of Toronto, driving to and from her work each day.
[20] On the evening of September 23, 2015 S.F. met up with a good friend, K.H., to catch up over dinner and drinks. They met at Oasis, a rooftop restaurant and bar connected to the Wayne Gretzky's restaurant at Blue Jays Way and King St. West. S.F. could not remember exactly what time they met, but believed it was later in the evening, around 9 p.m. She disagreed with the suggestion put to her under cross-examination that they had met closer to 6:30 or 7 p.m. S.F. had worked that day and gone home, before cycling the ten-minute trip to meet her friend. They met and locked their bikes together before heading into the restaurant.
[21] S.F. testified that she had a couple of glasses of wine and some food at Oasis. She couldn't say with certainty how long they stayed there, but estimated two to three hours, after which they decided to go to another bar, Mascot, which was right across the street. At Mascot they had one or two drinks before leaving to go their separate ways home. S.F. said she was not intoxicated, putting her level of intoxication at a two out of ten. In other words, she felt very sober. She agreed under cross-examination that in her statement to the investigators she had put her level of intoxication at a one and had previously testified that she was a "three or a four." S.F. repeatedly said, however, that she felt fine when she left to go home. As she put it in response to a question under cross-examination, "I find it hard to use numbers to tell you how I was feeling." She consistently disagreed with the suggestion that she had been drinking for five to six hours and was more intoxicated than she wanted to admit.
[22] After K.H. and S.F. separated, S.F. began walking her bike northbound across King St. when she heard a police officer yelling at her through the window of his police car, which was parked on King St. facing east. The officer, who turned out to be Sgt. Heard, asked her if she wanted a ride. S.F. said no. He persisted with his offer and she persisted in declining it. He asked her if she was okay; she said yes. He told her that she didn't look okay and she told him she was fine. He said to her again, "take a free ride." S.F. testified that she did not want a ride. She was not far from home.
[23] Eventually S.F. gave in to the officer's solicitations and accepted the ride. She said she did so because he was so persistent and because, as she put it, "he was a police officer. He is an emergency worker, and I was brought up to trust police." S.F. thought it was silly to be taking a ride home when she lived ten minutes away. Sgt. Heard told her to get in the front seat, which she did, while he put her bike in the back seat of the clearly marked police SUV. Other than missing a light, S.F. denied having had any trouble with her bike before she came across Sgt. Heard.
[24] According to S.F., Sgt. Heard asked her where she lived then started driving away and immediately said to her that she was beautiful. He then put his hand high up on her upper thigh near her vagina and rubbed it. S.F. shooed him off and said, "get off me." She thinks that she brushed his hand away with hers. She was angry that someone she trusted had done this.
[25] It was an agreed fact that Sgt. Heard's police car left the area where he picked up S.F. at approximately 12:53 a.m.
[26] They continued driving, missing a turn that would take S.F. directly home and eventually stopping somewhere when, according to S.F., Sgt. Heard again touched her on the leg and told her she was a nice girl. S.F. then told Sgt. Heard that she was subject to a "restraining order" and that he should look up her record. She said that she did this because she wanted him to see it so that "he didn't think I was just some vulnerable girl" and would think that she was capable of standing up for herself. S.F. had indeed been subject to a peace bond in relation to an ex-boyfriend. She also told Sgt. Heard that her father was a firefighter, thinking that "he would respect him as another emergency worker, and respect me in return, I guess."
[27] S.F. said that Sgt. Heard looked her up on his police computer and it showed that she was subject to a peace bond that was soon to expire. She also told him that she "hated cops" and that "he probably has a wife and kids at home, and he is picking up girls on the street and doing this, and it is not right." Sgt. Heard told her that she was "bad."
[28] Under cross-examination S.F. agreed that she had been placed on a peace bond. She said that this arose from an incident when she reported to the police that she had been assaulted by her boyfriend, but that when the police arrived to investigate the incident, the police unduly pressured her boyfriend to say that she had assaulted him which resulted in S.F. being charged. S.F. agreed that this was, as counsel put it to her, "a serious pain" but also said that it was partly her fault because she did not tell the police what had actually happened. As she put it, she blamed herself for not speaking up.
[29] S.F. denied that when she got into Sgt. Heard's car she asked him to look up her record so that she could find out when the peace bond expired. She said she didn't care about that. She agreed that she told Sgt. Heard that cops were liars and cheats but disagreed that this was her general opinion of the police. She said it was an opinion which, "came out when he touched my leg… I don't just walk around thinking I hate the cops." S.F.'s stated antipathy to the police that night was because of what she said Sgt. Heard did to her. As she put it, "If he picked me up and just drove me home, I would have never said that."
[30] According to S.F., she believed Sgt. Heard touched her leg for a third time, after which she told him she was getting out of the car. He immediately drove her home, dropping her off in front of her apartment. It was agreed that his car arrived in the area of S.F.'s home at 1:08 a.m.
[31] Under cross-examination S.F. said that she recalled being touched the first two times "for sure" and she seemed to agree with the suggestion that she had testified on a previous occasion that she was touched only twice. In re-examination, however, S.F. agreed that she had initially told the S.I.U. that she was sure he had touched her twice but that she felt like "there could have been a third time."
[32] Later that day, after telling her father and her boss about what had happened, S.F. went to 52 Division and reported the incident to the police.
[33] Sgt. Heard testified that he approached S.F. because she appeared to be struggling with her bicycle. He offered her a ride home because he was worried for her safety on a bicycle when he detected that she had been consuming alcohol.
[34] According to Sgt. Heard, soon into their ride S.F. asked him if he wouldn't mind checking to see when a peace bond she was on expired. He stopped his car and did exactly that. At this point, according to Sgt. Heard, S.F. started railing against the police who had framed her and extorted her boyfriend into saying that she had assaulted him: "she flew off the handle and became quite irate about this experience that she had had, telling me that she – she should never ever been – pardon my language, fucking charged in the first place. Cops are – just like my father tells me, they are liars and cheats." Sgt. Heard said that at that point he could not get her home fast enough. He denied having touched her in any way at all.
b. November 1, 2015: the M.N. Complaint
[35] Halloween 2015 fell on a Saturday night. After taking her four-year-old daughter out that evening, M.N. went to the Underground Garage, a bar where she used to work at the intersection of King St. West and Blue Jays Way in the Entertainment District. Her mother had agreed to babysit her daughter and M.N. planned to go out for the night and sleep at her mother's apartment in the Regent Park area of Toronto.
[36] M.N. arrived at the bar at around 10:30 or 11:00 p.m. and stayed until some time after last call, which was around 2 a.m. She could not remember how many drinks she had, estimating maybe five, but testified that while she was "starting to feel a little buzz," she was "coherent" and "[knew] exactly what was happening."
[37] M.N. said that when she left the bar she was talking to Johnny, the security guard at the entrance to the bar, telling him that she planned to walk to Queen St. and take a streetcar home because she did not have enough money for a taxi, when a police officer in a marked police car driving eastbound on King St. stopped and asked her if she was okay. She told him she was trying to get a ride but that it was hard to get a taxi. The officer, Sgt. Heard, asked her where she was going, and she told him. He offered her a ride. M.N. testified that she accepted and told Johnny that the officer had offered a ride and he told her to call him as soon as she got home. She accepted a ride because, as she put it, "what better ride to take than an officer ride, because I would never hop in a stranger's car… the security is telling me don't do it, but what is the worst that can happen? He is a cop. So, I trusted him."
[38] M.N. went to get in the back seat of the police car but Sgt. Heard told her to get in the front. She asked him whether he would "get in trouble" for allowing her to do that but he assured her it was okay. It was an agreed fact that Sgt. Heard's police car left the area where he picked up M.N. at approximately 2:48 a.m.
[39] M.N. said that in the car they chatted about her evening and she showed Sgt. Heard photos of her daughter. When they pulled up outside her mother's apartment building, Sgt. Heard told her to take his number and to let him know when she got upstairs. He told her his name was Chris and she started entering his number under the name "Chris Van" (to remind herself she had got into what she thought at the time was his mini-van). As she did she felt "a brush in my inner thigh." She said Sgt. Heard touched her on her left inner thigh, close to her pelvic bone. She pushed him away and said, "what are you doing?" She told him she would text him when she got upstairs and then started to get out of the car, landing in a puddle of water. She hesitated in the seat before telling him to "just go" and getting out. As she started walking towards the entrance to the apartment she saw the police car do a u-turn and drive westbound on Gerrard St. It was agreed that Sgt. Heard's car arrived in the area of S.F.'s home at approximately 3:03 a.m. and left that area approximately eight minutes later.
[40] M.N. testified that she did not recall having any further communications with Sgt. Heard that night but recalled waking up and remembering that she had not texted him as she had said she would. She sent him a message saying that she had arrived home safely but got no response.
[41] When M.N. told her mother later that morning what had happened, her mother told her to report it, but M.N. did not. She explained why: "I watch too many movies with people being killed for – I guess complaining about cops…I was nervous…I wasn't threatened, but I was – like, more so, if he ever tried to do anything again, I have his phone number for evidence that I have spoken to him before." M.N. decided to report the incident to the police after seeing an online news report about Sgt. Heard being charged with sexual assault. She thought that this was in March 2016.
[42] According to Sgt. Heard, he approached M.N. on the street and asked her if she was alright because she was crossing the road and several men were following her, "voicing obscenities at her with regards to parts of her body." He said that M.N. stopped to talk to him and he offered to get her a cab. When she said she couldn't afford one he offered to give her a ride home because she was "inebriated" and "vulnerable."
[43] According to Sgt. Heard, when they arrived close to M.N.'s home, she asked him to stop and let her out and they exchanged phone numbers so that she could text him to let him know that she was safely home. When she did not text him he called her, and she answered the phone. He said that on the call she complained that she did not get his business card. He explained that she had asked him to mentor a relative of hers who was having some issues with the law. According to Sgt. Heard, M.N. directed him to meet her at the back of her building, so he left his police car and went to meet her. He gave her his business card after which she gave him a hug and he went back to his police car to drive back westbound.
[44] Sgt. Heard denied having touched M.N. in any way.
[45] Cell phone records showed the following contacts between Sgt. Heard's and M.N.'s cell phones on November 1, 2015:
| Time | Type | From | To |
|---|---|---|---|
| 3:07:49 a.m. | Call (1 min 6 secs) | Sgt. Heard | M.N. |
| 3:15:50 a.m. | Text | Sgt. Heard | M.N. |
| 3:32:41 a.m. | Text | Sgt. Heard | M.N. |
| 8:06:25 a.m. | Text | M.N. | Sgt. Heard |
| 8:06:30 a.m. | Text | M.N. | Sgt. Heard |
| 8:06:37 a.m. | Text | M.N. | Sgt. Heard |
[46] John Bakker testified that he did not recall seeing M.N. get into a police car that night, although he acknowledged that if he wasn't paying attention he would have missed it. Nor did he recall speaking to M.N. about getting into a police car. He also said that he messaged M.N. on Facebook using his cell phone at 6:30 a.m. on November 1, 2015 just to check that she got home without any difficulty, and she responded. He did not text her because they did not have each other's phone number. Mr. Bakker testified that he recalled speaking to M.N. at the end of the night and had no concerns that she was too intoxicated to make her way home. Mr. Bakker acknowledged under cross-examination that he could not remember how M.N. had left the area of the bar that night, nor could he specifically recall the conversation he had with her before she left.
4. ANALYSIS
a. S.F.
[47] In my view S.F. was a highly credible witness. She was measured and careful in her evidence. I detected no sense of gratification in making these allegations against a police officer. And she seemed genuinely puzzled when asked about or confronted with things which made no sense to her. In my view the suggestion that she seized on this offer of a ride home from a police officer, an offer she had no interest in accepting, to fabricate an allegation of sexual assault as a means of exacting her revenge on the police in general is, on the evidence before me, far-fetched and implausible.
[48] The defence focused on apparent inconsistencies in S.F.'s evidence either internally or when measured against other witnesses. For example, Mr. Clewley spent some time examining S.F. about what time she arrived at the Oasis bar that night. S.F. thought it was 9 to 9:30. Her friend K.H. said it was just after the bar had cleared out of people going to the Blue Jays game which started shortly after 7 p.m. She said it was still light out.
[49] I do not know who is accurate on that issue. K.H. was a credible witness, but ultimately was uncertain about how long they spent at each place. There is no dispute that she parted company with S.F. not long before Sgt. Heard started interacting with S.F. shortly before 1 a.m. Both S.F.'s and to a lesser degree K.H.'s evidence about how long they spent at each restaurant that night would tend to support S.F.'s evidence that they met closer to 9 p.m.
[50] S.F. testified that she had worked that day and that she usually finished work around 6 p.m. She drove home, which she said could have taken her up to an hour and a half and then spent "quite a while" getting ready to go out. K.H. testified that the two women stayed at the first restaurant for about an hour and a half before going to the second bar where they had two drinks, leaving at around midnight. K.H.'s time line is far more consistent with their having met closer to 9 p.m.
[51] But this issue is hardly dispositive or even particularly informative of S.F.'s credibility or reliability with respect to what happened in the police car. There is no dispute about what time she got into that car. Even if S.F. is inaccurate about exactly what time she met her friend, this says nothing meaningful about the reliability of her evidence of what Sgt. Heard did to her.
[52] I say this in part because S.F. was not challenged on the basis that she misapprehended an innocent or accidental touch to her leg, or that she had in any way consented to being touched. The defence position was that her allegation was an outright fabrication. In that sense, the reliability of her account is not in issue. Her memory of exactly what time things happened earlier in the evening, before she had any reason to think that she would need to recall those events, is of marginal import to my overall assessment of her as a witness. On the central issue of being touched by Sgt. Heard, I accept S.F.'s evidence.
[53] S.F. also disagreed that K.H. walked her bike as opposed to riding it away when they parted company. S.F. was adamant that her friend must have been mistaken on this point.
[54] In my view little or nothing turns on these differences in the evidence with respect to the credibility of S.F.'s account of what Sgt. Heard did to her. They are unremarkable discrepancies of recollection about what at the time would have been unremarkable events. Even if S.F. is mistaken in her recollection on these issues, it does not materially diminish her reliability as a witness.
[55] Similarly, S.F. agreed that she had told the investigators shortly after the incident that she first walked south across the street when she and K.H. parted but testified at trial that she walked north. S.F. testified that she was mistaken in her statement to the S.I.U. In the context of the evidence as a whole, this minor inconsistency is of no moment in assessing S.F.'s reliability or credibility as a witness in relation to the critical factual issue before me. She explained that she was not too familiar with the downtown streets and, in any event, was not challenged on the general point of her evidence, which was that she was solicited by Sgt. Heard as she was heading home in what would inevitably have been a north and then westerly direction.
b. M.N.
[56] The defence focused on M.N.'s undeniable inconsistencies, including her prior statement that the vehicle she got into was a mini-van; whether or not she was actually trying to get a taxi home from the bar; whether she drank rye or Jack Daniel's; whether she knew the security guard as "Johnny Bravo"; and whether Johnny had texted or messaged her on her way home that night.
[57] I recognize that these are areas where M.N. acknowledged being or was to some degree at least demonstrably inconsistent. In my view, however, these kinds of inconsistencies do not undermine M.N.'s credibility or reliability with respect to the key events that evening. To be sure, a witness whose memory is shown to be faulty or inconsistent in multiple areas may cause a trier of fact to be concerned about her testimony in its entirety. It is important that these features of a witness' evidence not be overlooked or too readily discounted. In my view, however, M.N.'s inconsistencies are peripheral to the central events she described between she and Sgt. Heard that evening.
[58] I do not intend to suggest that M.N.'s inconsistencies are irrelevant because her allegation of assault is true. That approach to the evidence would fail to respect the presumption of innocence. Rather, in my view M.N. was shown to be mistaken about things which are hardly surprising in the context of the evidence as a whole. She had been drinking a fair amount and was tired, desperate to use the washroom by the time she got home. The fundamental event on which M.N. was obviously correct was that Sgt. Heard, in the midst of the bars being let out in the Entertainment District on a busy Saturday night, took the time to offer a ride home to one young woman. I accept her evidence that while she was in his police car he touched her in the manner she described.
[59] M.N. did not try to stubbornly cling to memories which were shown to be potentially incorrect. She either conceded the inconsistency or simply said that since she was testifying almost four years after the events in question, she did not have a memory of things she had said on previous occasions. In this respect I found M.N. to be a very credible witness. Her reaction to being reminded that a number shown on her cell phone records was for a guy who had tried to pick her up at the bar that night, for example, was particularly telling. She was genuinely surprised when her memory was refreshed on this point and was willing without hesitation to accept she had been called by this person. She was never defensive or hostile under cross-examination.
[60] Crucially, M.N. never resiled from, nor was she shown to have been inconsistent in relation to her evidence that Sgt. Heard touched her that night.
[61] I have given careful consideration to M.N.'s evidence about whether or not she spoke on the phone to Sgt. Heard shortly after he dropped her off. M.N. said she had no recollection of such a conversation. Sgt. Heard testified that he called M.N. after she got out of his car and they spoke, arranging for him to meet her at the back of the building to giver her his business card. The parties agreed that cell phone records showed a one minute and six second call from Sgt. Heard's phone to M.N.'s phone at 3:08 a.m. M.N. also agreed that she had previously told investigators that she texted Sgt. Heard before going to bed that night, an assertion not corroborated by the cell phone records.
[62] M.N. testified that she was sure she did not have any "phone conversations" with anyone that night before going to bed, although she acknowledged that her cell phone records show an outgoing call from her phone at 3:14 a.m. Nor could she recall ever receiving a call. She said that she was sure she had not even given her number to Sgt. Heard. In short, M.N. testified that she had no memory of speaking to anyone on the phone between the time she got out of Sgt. Heard's vehicle and the time she woke up later that morning. Her evidence is, on the face of it, contradicted by the cell phone records. While those records show incoming and outgoing calls and texts, there was no agreement that the records before me demonstrated that M.N. actually spoke to anyone. Sgt. Heard said they spoke about his business card and meeting at the back door; M.N. said there was no such conversation. The records themselves shed little or no light on that issue.
[63] Even if M.N.'s memory of receiving a call from Sgt. Heard is unreliable, in my view this does not detract from the strength of her evidence that he touched her on the leg. As with S.F., there was no suggestion that M.N.'s intoxication or fatigue caused her to misconstrue an otherwise innocent or accidental touch. The reliability of her memory of being sexually assaulted was not the issue. I am unable to find that any confusion or lack of memory with respect to what calls or texts she received that night detracts to any meaningful degree from M.N.'s central allegation that she was sexually assaulted by Sgt. Heard as she sat in his car. On that issue I have no difficulty accepting M.N.'s evidence.
c. Sgt. Heard
[64] In my view Sgt. Heard's evidence about why he picked up these two women and much of what happened between he and them was not credible.
[65] Sgt. Heard acknowledged that he was the supervisor of one of the busiest and crime-filled neighbourhoods in the city when he was in the Entertainment District on these two occasions. As he put it in explaining why it made sense for him to be sitting at Wellington St. and Blue Jays Way after midnight on September 24, 2015, "The Entertainment District has the largest number of people. It is also – or the area of my division that has the most violence, the most calls for service during that time of night, and being there is just smart." Yet he took time to leave the area he was responsible for policing to drive these women home, one of whom plainly did not even want it, and knowing that it was contrary to Toronto Police policy to do so in the manner he did.
[66] Documentary evidence showed that on two occasions earlier in the evening of September 23, 2015 Sgt. Heard had made a request for someone else to transport a civilian. Yet at this particularly busy time, as the bars were closing on Halloween Saturday night, he took time to transport M.N. home when she had not been involved in any reported incident or had any prior contact with the police that night.
[67] Sgt. Heard justified taking the time to drive the two women home on the basis that it was a better use of his time as a supervisor "than sitting there enjoying a coffee and doing nothing." Yet at the same time he insisted that this was, on both nights in question, an area crawling with potential criminality, the policing of which was his responsibility to supervise.
[68] Turning to some of the particular points of the evidence, Sgt Heard's version of how and when he ran a CPIC check on S.F. is not consistent with the records showing the timing of his movements and actions. They reveal that he ran her on CPIC at 12:55 a.m., two minutes after driving away from King St. West and Blue Jays Way. That is consistent with the sequence of events described by S.F. Sgt. Heard's evidence was that after he ran the CPIC S.F. immediately flew into a rage about the police, as a result of which he "couldn't get her home fast enough." Yet after that, Sgt. Heard, a police officer with more than 20 years of experience patrolling this area of the city, failed to make the turn that would indeed get her home as quickly as possible. And, he said, it was S.F., apparently in a state of rage, who nevertheless "brought it to [his] attention" that he had missed the turn. It is difficult to comprehend how a road sergeant with years of experience working in this part of the city somehow mistakenly drove beyond his intended route.
[69] I reject Sgt. Heard's evidence about this sequence of events. S.F. testified that she really didn't care about the peace bond. She was not seriously challenged on this point. That she would fly into a rage about police officers being "liars and cheats" having just willingly accepted a ride from one, when told that the order was about to expire, makes no sense.
[70] What is more, on Sgt. Heard's description of S.F.'s conduct, he now had this civilian (previously unknown to him) in his police car who became verbally aggressive and enraged with him, yet he made no note, no report of it to dispatch and otherwise left these events completely unrecorded. According to Sgt. Heard, this was because there was nothing of any note to tell dispatch or to record.
[71] Sgt. Heard gave me the distinct impression at times that he wanted to focus on his version of events at the expense of answering a question directly. For example, he was asked in-chief whether he agreed that he overshot the intersection of Queen and Spadina. Rather than answer the question he volunteered the story about having inquired about S.F.'s peace bond. Sgt. Heard's answer was unresponsive, except to permit him to advance a version of events more favourable to himself. This is one factor, but only one factor, in my assessment of Sgt. Heard's credibility. I do not suggest that his attempt to advance a version of events favourable to his position is, on its own, somehow suggestive of guilt.
[72] Turning to his interaction with M.N., Sgt. Heard testified that his primary concern that night was for M.N.'s safety – in the Entertainment District when he picked her up and again when he dropped her off in Regent Park. But his claims are belied by his own actions: he said that he texted M.N. twice after he went to meet her at the back door of her building to make sure she was safely home. He got no reply. On his own evidence this was an area where "there [are] people who sleep in stairwells and people doing crack and very nefarious things in there." According to him he had "a duty to make sure she gets in all right. She is vulnerable. She has had too much to drink and I am dropping her off in Regent Park. Regent Park is an unsavoury area. That building in particular is very unsavoury. I am waiting outside for her to communicate with me to let me know that she has gotten in safely."
[73] Yet, having received no reply from M.N., he did nothing to report or address what he claimed to be his concerns for her safety in this apparently dangerous neighbourhood. Initially he said that he did not follow up because he "got busy doing police work." Shortly after that he said that he did not follow up because he "knew that she had already made it up there once and come back down. Probably the same route, and I figured she probably would have done the same thing. So, she – well, I had assumed that she had just fallen asleep." Shortly after that he explained that he did not follow up after not hearing from her because "I think I got tied up doing something." These explanations are inconsistent. Either he turned his mind to her lack of response and did nothing or his mind was distracted with other work. His own actions undermine the credibility of his evidence that he only gave M.N. a ride home to ensure that she got home safely.
[74] Similarly, Sgt. Heard claimed that M.N. was being harassed by a group of five men outside the bar and his concern for her safety led him to offer her a ride home. Yet he did nothing to address the conduct of the men. He said nothing to them, nor did he ask any of his constables to deal with them despite his view that their conduct placed M.N.'s safety in such jeopardy that she needed a ride home. Notwithstanding his concern about their conduct he did nothing because "They weren't damaging any property. They were just being rude." I do not accept his evidence that this was why he offered M.N. a ride.
[75] Sgt. Heard made no report or note about his dealings with M.N., nor did he engage his in-car camera because "It was, again, nothing. Nothing transpired. It was a friendly conversation. It was a quick drive, a drop off, and then back to the division." As I have already alluded to, according to Sgt. Heard, after M.N. left his vehicle they spoke on the phone and he made his way to the back of her building, leaving his police vehicle unattended in an area he said was one of high criminality for the sole purpose of giving his business card to M.N. and in contravention of Toronto Police Service policy. If that is what he did, then this was far from being nothing. Indeed Sgt. Heard agreed with the suggestion that he should have radioed in his location and actions to dispatch.
[76] In any event, I reject Sgt. Heard's evidence that there was such a meeting. M.N. was very clear that she never asked Sgt. Heard to mentor a relative of hers, and there was no suggestion that she followed up on such a request. It was her evidence that what stuck in her mind was Sgt. Heard turning his vehicle around on Gerrard St. and driving away as she made her way up the path towards her building. Her memory of that is clearly linked with her feeling at the time of, as she put it, "so much for being concerned." I reject Sg. Heard's evidence that there was a second encounter at the back door of the building and find that this diminishes his credibility more generally with respect to his dealings with M.N.
[77] Sgt. Heard failed, on both nights, to observe Toronto Police Service policies, procedures or wise practices which would have revealed the details of his actions. He did not turn on the in-car camera; he did not report his movements out of the division; he did not report that he was leaving his car unattended in Regent Park, he did not report in where he was going and for what purpose, and he made no notes of his activities.
[78] Sgt. Heard's explanation, that his failure to observe these best practices or policies was merely a result of complacency is not credible. Even if his failure to follow the policies of recording and reporting his transportation home of S.F. was a matter of mere neglect, it makes no sense at all that it was also complacency that resulted him failing to adopt these measures in relation to M.N. having recently been made aware of S.F.'s complaint.
[79] I find that Sgt. Heard deliberately failed to observe recognized policies and practices in order to minimize the possibility that his treatment of S.F. and M.N. would be brought to light and corroborated.
d. Motive to Fabricate
[80] Mr. Clewley has pointed to evidence that he says demonstrates a motive to fabricate on the part of both complainants: S.F. expressed resentment at the police for her having ended up on a peace bond, and M.N. said she had previously experienced police abusing individuals in her neighbourhood. Both complainants acknowledged that they expressed these sentiments. But I reject the defence's submission that these acknowledged grievances led them to independently and falsely accuse Sgt. Heard of sexual assault.
[81] I find that S.F.'s resentment of the police was neither as animated as Sgt. Heard testified to, nor did it have anything to do with S.F.'s decision to allege that he sexually assaulted her. She was clear that while she was annoyed at having been subject to a peace bond, she in large part blamed herself for not speaking up at the time about what really happened between she and her boyfriend. I accept her evidence that she had no desire to even accept the offer of a ride. She declined the offer several times before reluctantly giving in to the persistent solicitations of a uniformed police officer in a marked police car, someone she trusted would bring her no harm.
[82] As for M.N., she readily admitted that she had told the S.I.U. she thought the police sometimes abused their powers. She attributed this in part to having seen police interacting with citizens in her neighbourhood, including an incident where she said a police officer threatened to destroy her cell phone. But in re-examination M.N. testified that at the time she accepted the ride from Sgt. Heard, she had no anger or hostility towards the police in her mind. She said that if she had, she would never have got into his car. I accept that evidence.
[83] From the perspective of common sense and human experience, M.N.'s previous observations of police misconduct were hardly the sort that would lead her to conjure up what would have been a fairly elaborate false allegation against Sgt. Heard. The incidents which caused her to have a negative view of some police officers had occurred long before she accepted a ride home from someone whom she believed would be a safe harbour ("what is the worst that can happen? He is a cop. So, I trusted him.") In my view M.N.'s evidence simply cannot sustain any serious claim that she was motivated to fabricate her allegations against Sgt. Heard.
[84] If S.F. and M.N.'s allegations were fabricated because of animus towards the police, it is remarkable that both women were able to decide, on the spur of the moment, to take advantage of this unique opportunity to make a false allegation of serious misconduct. Neither of them solicited a ride from Sgt. Heard. Indeed S.F. persistently declined it. M.N. waited more than four months to make her complaint about Sgt. Heard's conduct. And, of course, they were in fact both picked up by Sgt. Heard. The defence would have it that two young women, both motivated to fabricate allegations of serious misconduct, just coincidentally were picked up by the same officer and made, completely independently of each other, a false allegation of the exact same type of sexual assault in the exact same circumstances. It defies all logic and common sense. I reject the defence theory on motive to fabricate.
[85] As I said earlier, my rejection of the defence's theory about motive to fabricate does not mean that S.F. and M.N. must therefore be telling the truth or even that they have no possible hidden motive to make up these allegations. It is merely one factor amongst many in the assessment of their reliability and credibility.
e. Similar Facts
[86] The Crown applied to have the evidence of the two complainants treated as similar act evidence "cross-count." The defence opposed the application. If admitted, the use of evidence for similar fact purposes is just one factor to be considered as part of the Crown's overall case.
[87] In order for the evidence to be admitted for a similar act purpose, the Crown must establish on a balance of probabilities that the evidence is sufficiently probative to an issue at trial so as to outweigh its prejudicial effect. The probative value of the evidence is based on its ability to support, through the improbability of coincidence, other inculpatory evidence.
[88] The evidence must be probative of a specific issue at trial, such as the actus reus or the identity of the accused, must not be improperly tainted by collusion, and the nexus between the evidence must be sufficiently strong as to warrant its use for a similar act purpose. The prejudicial effect in terms of both moral and reasoning prejudice must be weighed against the probative value.
[89] I find that the evidence of the two complainants, with numerous points of similarity and entirely untainted by collusion, can be used as similar act evidence as to whether the acts complained of occurred and to counter the suggestion of fabrication. It is directly relevant to my assessment of the S.F. and M.N.'s credibility and its probative value outweighs any prejudicial effect it may have, particularly in the context of a judge-alone trial.
[90] I do not agree with Mr. Clewley that the complainants' evidence standing alone is so fragile that using it for similar act purposes would amount to using one bad witnesses' evidence to bolster another's. Indeed, it is my view that the strength of each complainant's evidence, viewed independently of the other and in light of the evidence as a whole, proves the offences beyond a reasonable doubt with or without the benefit of a similar act use. A similar act analysis across counts only adds to what, in my view, is an already compelling case of guilt on both charges.
[91] There are other similarities not grounded in the similar fact evidence rule which serve to enhance the credibility of both complainants. Both testified that they were aware, or at least assumed that the police car would have been equipped with a video camera. Both made their respective complaints believing that if their allegations were false, they would have been readily proven to be so.
5. CONCLUSION
[92] I reject Sgt. Heard's evidence. In my view, he was not a credible witness. I do not believe him and, after considering his evidence in light of the evidence as a whole, it does not leave me with a reasonable doubt about whether he touched the two complainants in the way they described.
[93] I do not accept the defence position that S.F. and M.N. took advantage of being in a police car to falsely accuse Sgt. Heard of sexual assault as a means of vindicating their prior grievances with the police. To the contrary, I find that these two women's complaints were made as a result of being sexually assaulted by Sgt. Heard.
[94] I accept the evidence of both S.F. and M.N. Viewed in the context of the evidence as a whole, I am satisfied that it establishes beyond a reasonable doubt that Sgt. Heard touched both women without their consent in circumstances of a sexual nature, such that he violated their sexual integrity.
[95] I find that these two women told the truth about what Sgt. Heard did to them: he touched them on the inner thigh near their vaginal areas without their consent. That is a sexual assault.
[96] I find Christopher Heard guilty on both counts.
Justice P. Downes
Released: September 19, 2019