WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2020-08-24

Court File No.: St. Catharines YN19-2085

Between:

Her Majesty the Queen

— AND —

T.T., a young person

Before: Justice D.A. Harris

Heard on: January 10, 11 and 12, 2020

Reasons for Judgment released on: August 24, 2020

Counsel:

• Todd Morris, counsel for the Crown
• Jonathan Margolin, counsel for T.T.

HARRIS D.A. J.

INTRODUCTION

[1] T.T. has been charged with sexually assaulting J.L.P. at the City of St. Catharines on November 9, 2018.

[2] Crown counsel elected to proceed by indictment. T.T. pled not guilty and the trial began.

[3] The Crown called J.L.P. and B.S. as witnesses during the trial.

[4] K.W. was called by the defence.

[5] The evidence of K.W. contradicts the assertion that T.T. sexually assaulted J.L.P. Accordingly, the principles in R. v. W (D) are applicable.

[6] If I find that K.W.'s evidence negates any essential element of the offence, I must find T.T. not guilty.

[7] Even if his evidence leaves me with a reasonable doubt regarding any essential element of the alleged offence, I must find T.T. not guilty.

[8] Finally, even if his evidence does not leave me with a reasonable doubt about his guilt, if after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of T.T.'s guilt, I must acquit.

[9] In determining this, I must keep in mind that T.T., like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities".

[10] This is a tough standard and it is so tough for very good reason. As Cory J said in R. v Lifchus:

The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt ... is one of the principal safeguards which seeks to ensure that no innocent person is convicted.

[11] The case against T.T. depends on my assessment of the evidence of the various witnesses.

[12] In that regard I note the differences between credibility and reliability. Credibility relates to a witness's sincerity, whether he is speaking the truth as he believes it to be. Reliability relates to the actual accuracy of his testimony. In determining this, I must consider his ability to accurately observe, recall and recount the events in issue. A credible witness may give unreliable evidence. Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt.

[13] Finlayson J.A. stated in R. v. Stewart that:

I am not satisfied, however, that a positive finding of credibility on the part of the complainant is sufficient to support a conviction in a case of this nature where there is significant evidence which contradicts the complainant's allegations. We all know from our personal experiences as trial lawyers and judges that honest witnesses, whether they are adults or children, may convince themselves that inaccurate versions of a given event are correct and they can be very persuasive. The issue, however, is not the sincerity of the witness but the reliability of the witness's testimony. Demeanour alone should not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on the record.

[14] At this point I will say that while my decision with respect to the credibility of the witnesses is based, in part, on their demeanour while testifying, I am well aware that a finding of credibility should never be based on demeanour alone, especially where there are significant inconsistencies and conflicting evidence on the record. The credibility and reliability of a witness must be "tested in the light of all the other evidence presented".

[15] I also stress that while I am satisfied that I may rely on the demeanour of the witnesses as a factor in assessing their credibility, I consider it to be of very little, if any, assistance in assessing the reliability of their evidence.

[16] Both counsel have pointed out inconsistencies in the evidence of the various witnesses.

[17] In assessing the credibility of a witness, it is appropriate to examine the inconsistencies between what the witness said and what other witnesses said. Inconsistencies on minor matters or matters of detail are normal and do not generally affect the credibility of a witness. But one or more inconsistencies involving material matters can justify concluding that the witness is neither credible nor reliable. In determining this, it is necessary to look to the totality of the inconsistencies.

[18] Crown counsel has argued that J.L.P. had no motive to fabricate the allegations against T.T. Counsel for T.T. disagreed with this. He argued however that K.W. had no motive to fabricate his allegations about J.L.P.

[19] The absence of any motive to fabricate an allegation is a proper matter for consideration in the course of the fact-finding process. It is, however, only one of the factors to be considered by me. I cannot simply conclude that because there is no apparent reason for a witness to lie, the witness must be telling the truth. Rather, I must assess the credibility and reliability of the witness' evidence in the light of all of the other evidence. Nor can I automatically equate a lack of evidence of motive to fabricate, to the proved absence of motive to fabricate.

Assessment of K.W.'s Evidence

[20] I did not believe K.W. when he said that J.L.P. told him that she tried to "suck T.T.'s dick" or when he said that he heard T.T. saying, "No. No. Get off me." His evidence on those points did not leave me with a reasonable doubt as to T.T.'s guilt. My reasons for this are as follows.

[21] I found K.W.'s evidence to be neither credible nor reliable.

[22] He testified that his level of intoxication by drugs on a scale of one to ten that night was "ten out of ten". He and the others were all "100 per cent drunk".

[23] He further testified that he did not learn that J.L.P. had accused T.T. of sexual assault until "just recently" being "a month or two ago". This would then be 13 or 14 months after the events of that night.

[24] Despite his level of intoxication that night, and despite the delay in directing his mind to the events of that night, he claimed to have perfect recall of almost every detail of what happened. He recalled the exact times that everything happened. His recollection was "100 per cent accurate".

[25] He explained that he recalled the events of that night clearly because that was the night that he had stolen a vape from a friend at the party.

[26] I did not accept this explanation. It makes no sense.

[27] It is possible that K.W. felt so guilt-ridden that the event stuck in his memory. I did not however note such a high level of feeling guilty on his part. Further, remembering that there was a party at which he stole a vape does not logically bring back total recall of everything else that happened that night. Finally, I am satisfied that if K.W.'s story is true, the most memorable event of that night should have been the fact that J.L.P. confided in him that she tried to "suck T.T.'s dick" and that T.T. rejected her.

[28] I am satisfied that the explanation about recalling that night because he had stolen the vape was just one more contrived aspect of K.W.'s testimony.

[29] Another reason for finding his evidence unreliable is that on a number of occasions, K.W. stated things as facts when it turned out that he had not actually seen or heard these things but rather inferred them.

[30] That is significant here because I am satisfied that K.W. had a motive to, at the least, remember events the way he did and at worst to fabricate evidence.

[31] He was a good friend of T.T. then and during the trial. He was living with T.T. at the time and continued to live with him for two or three weeks. Conversely, he clearly did not like J.L.P. The girl who he did not like was making serious allegations against his friend. His testimony provided a means to protect the friend from those allegations.

[32] The most obvious example of a fact inferred by K.W. is as follows.

[33] He testified that T.T. would not have allowed J.L.P. to perform oral sex on him because:

(1) "she's not the most attractive woman"; and

(2) T.T. had a girlfriend.

[34] My first problem with these statements is that there is no evidentiary basis to the contention that T.T. would not accept an act of oral sex from an unattractive woman or from a woman other than his girlfriend. Further, even accepting that K.W. believed that J.L.P. was unattractive, there is no evidence that T.T. believed that. My own observation is that it would be open to T.T., or anyone else, to disagree with K.W.'s opinion regarding her appearance.

[35] In any event, I am concerned by K.W.'s tendency to make definitive factual statements based on conclusions he had drawn rather than on things that he had actually seen or heard. I am particularly concerned that he simply concluded that since T.T. would not (in K.W.'s opinion) have sex with J.L.P., then he did not do so.

[36] He used the same reasoning to explain why J.L.P. would have tried to initiate a sexual act with T.T. "He was cute" and she was not attractive to boys.

[37] Other comments made by him during his testimony caused me concern. These included, "Girls have an attraction to us. I don't know why, they just do" and "Girls don't like to be told 'no'. They get upset when told 'no'." While he expressed these views of women in general, he was clearly applying them to J.L.P. in particular.

[38] He further expressed the opinion that J.L.P. was a sexual predator that night. He based that opinion not just on the fact that she had attempted to force herself sexually on T.T. but also that there were times when she had her arms around T.T. and K.W., giving them shots of alcohol. He found her placing her arm around him to be offensive. It would appear however that he did not find this so offensive that he refused the proffered drinks. I found this to be another contrived aspect of K.W.'s testimony.

[39] Another example of K.W. inferring things as facts was when he stated with certainty that B.S. brought his "bong" to the party that night. During cross-examination he explained that he reached that conclusion because he saw B.S. bring it into the room where they used it to smoke drugs. He eventually conceded that he could not say for certain whether B.S. had actually brought the "bong" to the house that night or on an earlier occasion. B.S. had testified that the "bong" was already there.

[40] K.W. testified that he believed that J.L.P. was smoking marihuana that night although he conceded that he never saw her doing this. She testified that she did not smoke marihuana that night.

[41] K.W. also provided details about certain photographs that were shown to him. Then he conceded that certain of these details came from what was written on the photographs themselves rather than from any personal recollection.

[42] Another factor leading me to disbelieve K.W. was the degree to which he embraced the role of defence advocate rather than that of a witness.

[43] He questioned why T.T. was being tried.

[44] He told Crown counsel "I am not here to give you any more than you need".

[45] Another time he questioned "What is this, the Central Park Five?" He was clearly trying to compare T.T.'s case to that well-known miscarriage of justice.

[46] K.W. also seemed to have somehow obtained information about the progress of the case against T.T.

[47] During the Crown's case, there were a number of discussions about whether M.B. was or was not coming to testify for the Crown. Crown counsel clearly hoped that she would be coming. The case was held down overnight to allow the Crown to look into this. All of these discussions took place in the absence of all witnesses and after I made an order excluding those witnesses.

[48] M.B. did not return to St. Catharines and she did not testify.

[49] Early in his examination-in-chief, K.W. referred to M.B. as "the one who is not coming". When questioned about this he explained that he had heard a couple of days before that M.B. had moved away and that he knew that she was not in the courthouse.

[50] I do not accept that explanation. There was no reason for K.W. to know that M.B. was expected to testify. There was also no reason for him to know that there was any question about whether she was coming or not. There was also no reason for him to know for certain that she was not in the courthouse. Finally, there was no way he could be certain that no arrangements had been made for her to testify out of order.

[51] I am concerned that he had taken steps to learn who was testifying and who was not. I am also concerned that he testified with the knowledge that M.B. would not be there to possibly contradict him.

[52] Another factor leading me to disbelieve K.W. was that certain statements by him were simply incapable of belief.

[53] He said that he was the only one there who was willing to help J.L.P. He quickly amended that to say that he was the only one who did help her. He was simply there at the right place at the right time to provide a shoulder to cry on.

[54] This does not make sense when he also said that "I was just a grade 9 kid". He did not describe any previous friendship with J.L.P. Rather he stated that they were not close. His negative attitude towards her is clear from the observations that I made earlier. It was made crystal clear by him making the effort to tell everyone at the party that J.L.P. tried "to suck T.T.'s dick".

[55] M.B. on the other hand was J.L.P.'s friend. M.B. was there. According to J.L.P., she spoke to M.B. about what happened. She also spoke to J, a boy that she liked and to B.S., another friend. It makes perfect sense that she would confide in those people. It makes no sense that she would confide in K.W.

[56] The final factor leading me to disbelieve K.W.'s evidence is the fact that it is inconsistent with the evidence of the other witnesses that I did accept. I point out that I am not weighing the Crown and defence evidence against each other, in a credibility contest where I have chosen the evidence that I prefer. That is not the appropriate analysis. Rather, I reject the evidence of K.W. based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence in accordance with repeated directives from the Ontario Court of Appeal. I will address that evidence below.

[57] To summarize, I have rejected the evidence of K.W. for a number of reasons. These are:

(1) He was highly intoxicated that night. This could have affected his ability to observe events and to recall them;

(2) He was not aware of any allegations against T.T. until months afterwards, and accordingly did not even attempt to remember the events of that night until then;

(3) Despite these limitations, he was adamant that he had perfect recall of almost every detail of what happened. His recollection was "100 per cent";

(4) His explanation that he recalled the events of that night clearly because that was the night that he had stolen a vape from a friend at the party makes no sense;

(5) He had a motive to at the least remember events the way he did and at worst to fabricate evidence. He was a good friend of T.T. then and during the trial. Conversely, he clearly did not like J.L.P.;

(6) He stated things as facts when it turned out that he had not actually seen or heard these things but rather inferred them;

(7) He took on the role of defence advocate rather than that of a witness;

(8) He made certain statements that were simply incapable of belief;

(9) His evidence was inconsistent with the evidence of the other witnesses that I did accept beyond a reasonable doubt.

[58] I must stress that my rejection of K.W.'s evidence was not based on any one of these reasons alone, but on all of them collectively.

[59] I note in particular that I did not reject his evidence solely because he stated that his level of intoxication by drugs on a scale of one to ten that night was "ten out of ten". Quite frankly I rejected his contention that he and J.L.P. and B.S. were all 10 out of 10 drunk or that they were all "100 per cent drunk". Objectively, if they were 100 per cent drunk or 10 out of 10 drunk, they would be unconscious or otherwise incapacitated. None of them were at that stage. They were all walking without assistance. They were all communicating clearly with each other. They were not lying on the bathroom floor being sick like L was.

[60] I viewed K.W.'s characterization of them being 10 out of 10 drunk as one more example of him resorting to hyperbole for dramatic effect.

[61] I was concerned by the fact that even after describing himself as 100 per cent drunk, he was adamant that he had perfect recall of almost every detail of what happened that night and his recollection was "100 per cent".

[62] One thing that I did not take into account in rejecting K.W.'s evidence was the violations of the rule in Browne v. Dunn. I will say more about this later.

[63] I also note that I did not consider each and every inconsistency in his evidence. I found some to be inconsistencies on minor matters or matters of detail that are normal and do not generally affect the credibility of a witness.

[64] Having determined that I did not believe K.W. and that his evidence did not leave me with a reasonable doubt as to T.T.'s guilt, I must still determine whether, after considering all the evidence that I do accept, I am satisfied beyond a reasonable doubt of T.T.'s guilt. If not, I must acquit T.T.

Assessment of J.L.P.'s Evidence

[65] The relevant evidence is as follows.

[66] J.L.P. adopted the contents of her video statement made to police five months after the alleged sexual assault. This was done pursuant to section 715.1 of the Criminal Code. She then gave further evidence in-chief and was cross-examined. I remind myself that her video statement was not just a prior statement to be used for assessing credibility. It was part of the evidence before me.

[67] The crucial elements of her allegations are that she, B.S., M.B., T.T., K.W., J and others were at a party hosted by their friend L.

[68] At some point, T.T. asked her to show him where he could find a cup so that he could get a drink of water. The two of them went to the kitchen. T.T. closed the door behind them. He pushed her against the door and began to make out with her. She was okay with that. He then asked her to perform oral sex on him and she said "no". He pushed her down to her knees, he placed his hand on the back of her head and pushed her head into his penis. His penis was in her mouth and she was choking, and she pushed him away. He said he was sorry but then he did it again. She pushed him away, got up and went back to where the others were.

[69] During cross-examination she was questioned at length about her level of sobriety and about her ability to remember the events of that night. She was also questioned about things that she did not tell the police during her statement.

[70] It was never put directly to her that what she had said was not true. She was asked if she had ever tried to force herself on T.T. that night, but she was not asked specifically whether she had tried unsuccessfully to suck his penis. She was asked a number of times what she had said to K.W. that night. She was never asked specifically whether she had told him that she had tried unsuccessfully to "suck T.T.'s penis". I will say more about these non-questions later.

[71] For now, I simply note that she was never challenged on the key elements of her testimony, let alone seriously shaken on them.

[72] As for her ability or inability to remember things in light of her alcohol consumption, I make the observation that much of her evidence was corroborated by either B.S. or K.W. or by both of them.

[73] All three witnesses agreed that J.L.P., B.S., M.B., T.T., K.W., J and others were at a party hosted by their friend L. It was a Friday night.

[74] All three agreed that the party was planned earlier the same day.

[75] J.L.P. and B.S. agreed that B.S. drove J.L.P. and M.B. to the party. They arrived before 6:00 pm.

[76] J.L.P. said she had five coolers and half a mickey of vodka that night. She drank the vodka straight from the bottle and shared it with the others. B.S. testified to seeing her drinking coolers. K.W. testified that he and T.T. both drank shots directly from J.L.P.'s bottle at one point.

[77] J.L.P. and K.W. both testified that at some point, something happened between J.L.P. and T.T. in another area of the house. K.W. said he heard T.T.'s voice saying, "No. No. Get off me." J.L.P. testified that she had been trying to push T.T. off of her.

[78] J.L.P. said that after this, K.W. called her a whore and a slut. K.W. testified that he did not call her names. He did not think that he called her a slut or a whore. He did tell everyone at the party that J.L.P. had tried unsuccessfully to "suck T.T.'s dick". Even assuming that he is correct about this, I have no problem understanding how J.L.P. might have interpreted this as him characterizing her as a slut and a whore.

[79] J.L.P. and B.S. agreed that J.L.P. had spoken to her friends afterwards about what had happened. K.W. testified that she spoke to him.

[80] J.L.P. and B.S. agreed that B.S. drove J.L.P. and M.B. home at around 9:30 or 10:00 pm. K.W. testified that they left at around 2:00 or 3:00 am.

[81] J.L.P. testified that she saw L lying on the floor in a bathroom when she was leaving. She did not know that he had been sick. K.W. testified that L was sick in the bathroom sometime between 8:00 and 9:30 pm.

[82] I am satisfied that J.L.P. was clearly drunk that night. All three witnesses agreed on that. J.L.P. conceded that both in her video statement and in court. She described herself as being a "6 or 7" drunk on a scale of one to ten. She was a little "stumbly" at times and her words would not make sense unless she thought about them. She was overly happy. She was unsure of some precise times and could not tell us everything that happened, but she did remember the majority of the night.

[83] All three witnesses testified that she was able to walk around. She was able to communicate with them. B.S. did not indicate any concern about her condition.

[84] In all of the circumstances I am satisfied that she did remember the relevant events that took place. She provided significant details of these core events.

[85] I am satisfied that J.L.P. had no motive to fabricate. Counsel for T.T. argued that she did fabricate the story in order to rehabilitate her reputation. He did not however put that suggestion to her during cross-examination.

[86] In any event, I note that the only logical way for her to defend her reputation would be to do just what she did that night. She denied doing anything wrong. When that apparently failed to convince people, she was certainly not going to be able to change their minds by going to the police five months later. If anything, that simply started the talk all over again.

[87] In the meantime, she had kept a low profile on this. As she stated: "I acted like we were friends and we were cool and everything 'cause I didn't want the drama and all the attention about it".

[88] The court proceedings certainly brought back that drama and the attention that she had hoped to avoid.

[89] She certainly did not try to leave out evidence that might show herself in a bad light.

[90] She admitted that she was okay with making out when T.T. started that.

[91] She admitted that she was intoxicated and that there were parts of the night that she did not remember.

[92] Conversely, she did not attempt to embellish or overstate what T.T. had done. She did not show vindictiveness toward him.

[93] Counsel for T.T. confronted her with a number of alleged inconsistencies. Many of these were details that were not mentioned at one time or another in her various statements and testimony. Crown counsel argued that omission of certain details in her statement is not an inconsistency. I disagree. Various statements by her were inconsistent in that they were not the same each time. They were not inconsistent however to the degree that they were contradictory. On several occasions, when she was asked about things that she had omitted somewhere, she quickly agreed that she had momentarily forgot to mention that and provided the same details as she had done elsewhere.

[94] As to any other inconsistencies, I found these to be inconsistencies on minor matters or matters of detail that are normal and do not generally affect the credibility of a witness.

[95] In the result, I was satisfied that she was both credible and reliable with respect to the commission of the offence.

[96] I am satisfied that what happened did constitute a sexual assault.

[97] I am satisfied beyond a reasonable doubt that T.T. committed that offence.

The Rule in Browne v. Dunn

[98] As I stated earlier, Crown counsel argued that counsel for T.T. failed to comply on several occasions with the rule in Browne v. Dunn. While I agreed with this argument, the Browne v. Dunn breach was not a factor in my final decision. The following are my reasons for reaching that conclusion.

[99] The well-known rule stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross-examination while she is in the witness-box.

[100] It is a rule of fairness that prevents the "ambush" of a witness by not giving her an opportunity to state his position with respect to later evidence which contradicts him on an essential matter.

[101] It is not, however, an absolute rule and counsel must not feel obliged to slog through a witness's evidence-in-chief, putting her on notice of every detail that the defence does not accept.

[102] Defence counsel must be free to use his own judgment about how to cross-examine a hostile witness.

[103] The cross-examination should confront the witness with matters of substance on which the party seeks to impeach the witness's credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatsoever that the witness's story is not accepted.

[104] It is only the nature of the proposed contradictory evidence and its significant aspects that need to be put to the witness.

[105] In some cases, it may be apparent from the tenor of counsel's cross-examination of a witness that the cross-examining party does not accept the witness's version of events. Where the confrontation is general, known to the witness and the witness's view on the contradictory matter is apparent, there is no need for confrontation and no unfairness to the witness in any failure to do so.

[106] The potential relevance to the credibility of an accused's testimony of the failure to cross-examine a witness for the prosecution on subjects of substance on which the accused later contradicts the witness' testimony depends on several factors, including but not limited to the nature of the subjects on which the witness was not cross-examined, the overall tenor of the cross-examination, and the overall conduct of the defence.

[107] Where the subjects not touched in cross-examination but later contradicted are of little significance in the conduct of the case and the resolution of critical issues of fact, the failure to cross-examine is likely to be of little significance to an accused's credibility. On the other hand, where a central feature of a witness's testimony is left untouched by cross-examination, or even implicitly accepted in cross-examination, the absence of cross-examination is likely to have a more telling effect on an accused's credibility.

[108] I was satisfied that the rule was breached here.

[109] It was never put directly to J.L.P. that what she had said was not true.

[110] She was asked if she had ever tried to force herself on T.T. that night, but she was not asked specifically whether she had tried unsuccessfully to "suck his dick".

[111] She was asked a number of times what she had said to K.W. that night. She was never asked specifically whether she had told him that she had tried unsuccessfully to "suck T.T.'s dick".

[112] She was not asked if K.W. went around the party telling people that she had tried to "suck T.T.'s dick".

[113] It was never suggested to her that she fabricated her story in order to rehabilitate her reputation.

[114] I am satisfied that all of these things should have been put to her.

[115] Having said that, I note that while it was never put directly to J.L.P. that what she had said was not true, it was certainly implied.

[116] I come to a very different conclusion with respect to the suggestion that J.L.P. was the aggressor and that she tried to perform oral sex on T.T. but he rejected her advances. This was a matter of substance and not an inconsequential detail and it should have been addressed directly. I reached the same conclusion with respect to the suggestion that she had confided in K.W. that she had done that and with respect to the suggestion that K.W. told other party-goers that she had done so.

[117] It was not enough for counsel to ask generally whether she had forced herself on T.T. There is a significant difference between that and her attempting to "suck his dick" without his consent.

[118] It was not sufficient for him to ask her to tell the court everything that she had said to K.W., even though he asked her this on a number of occasions. That might make it clear that counsel was interested in what she had said, but it fails completely to raise the suggestion that she had confessed to K.W. that she was in fact the aggressor.

[119] Counsel argued that his questions were sufficient to put her on notice as to where he was going with the defence case.

[120] I disagree. Quite frankly, after counsel finished questioning her, I was uncertain as to where he was going with the case. It could have been in any one of a number of possible directions. It never crossed my mind however that a defence witness was going to accuse her of being the sexual aggressor that night.

[121] But having found that the rule was breached, what is the remedy for this?

[122] Crown counsel argued that I should view the failure to cross-examine into consideration as a factor that I am entitled but not obliged to consider in assessing the evidence of both K.W. and J.L.P. He declined an opportunity to recall J.L.P.

[123] Counsel for T.T. argued that I should allow him to recall Ms. J.L.P. to testify again or that I should recall her for that purpose.

[124] I declined both suggestions. In reaching that conclusion I was mindful of the fact that I must consider a number of factors in determining the appropriate remedy. These factors include but are not restricted to:

1. the seriousness of the breach;
2. the context of the breach;
3. the timing of the objection;
4. the position of the offending party;
5. any request to permit recall of a witness; and
6. the availability of the impugned witness for recall.

[125] I point out the obvious, that this case is being tried before a judge alone. Accordingly, there is no need for a jury instruction in order to overcome any prejudice resulting from any breach of the rule.

[126] In the end, I did not recall the witness because I agreed with counsel for T.T. that there should be little if any doubt that she would simply reject all of his suggestions if they were put to her. This would have no effect on my assessment of the credibility and reliability of the witnesses.

[127] In light of that, it would be inappropriate to bring her back to court and put her through the attendant stress unnecessarily.

[128] Similar reasoning also played a significant part in my decision not to consider the breach of the rule as a factor in considering their credibility and reliability. I disbelieved K.W., even without factoring in Browne v. Dunn. I believed J.L.P. to the requisite degree also without factoring in Browne v. Dunn. I did not need to consider the breach and I did not do so.

[129] Accordingly, although I found there to be a clear breach of the rule in this case, that breach was not a factor in the outcome.

CONCLUSION

[130] I am satisfied that the Crown has proven beyond a reasonable doubt that T.T. sexually assaulted J.L.P.

[131] I find him guilty of that offence.

Released: August 24, 2020

Signed: Justice D.A. Harris