Ontario Court of Justice

Date: 2021 04 08 Court File No.: Guelph # 19/2943

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

J.G.

Before: Justice M.K. WENDL

Heard on: March 3, 2021 Reasons for Judgment released on: April 8, 2021

Counsel: J. Macdonald, for the Provincial Crown M. Stanley, for J.G.

WENDL J.:

[1] J.G. is charged with a sexual assault in relation to B.B. The complainant B.B., a nurse, alleges that during a visit to her office for an examination J.G. rubbed her breast twice with back of his hand and slapped her breast once as well. On the other hand, J.G. indicates that there was an inadvertent touching of her breast, only once, when B.B. “reefed” on his arm while putting on the blood pressure cuff.

Legal Principles

[2] In cases such as this, with two witnesses, the complainant and the accused, with two different versions of the events, one a narrative of guilt and the other a narrative of innocence, the Court must remember that proof beyond a reasonable doubt does not consist in choosing which version of events it prefers.

[3] To this end, the Supreme Court laid down the analysis in W.D. to prevent trials such as this from turning into a credibility contest. It also ensures that the “lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt” [1] and it prevents reversing the burden of proof. A reversal of the burden of proof occurs when the trier of fact rejects the evidence of the accused and thereby jumps to conviction simply because accused has not proven their innocence. [2] Ultimately, the purpose of W.D. is to keep the fundamental question of the trial in view: “the paramount question remains whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused” [3].

[4] The W.D. formula is not a magical incantation. [4] It does not require that I analyse the evidence in any particular order. [5] While mere reference to it will not save its evident misapplication [6], it is a useful anchor to any credibility analysis:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[5] While a deceptively simple formula, its application is not so, as evidenced by it being a frequent ground of appeal. [7] In my view, the danger of conflating a credibility finding and proof beyond a reasonable doubt is of particular concern when dealing with this type of trial where the evidence consists of the accused and the complainant, the only two witnesses to the incident. The judge as the trier of fact, after accepting the complainant’s evidence, may more easily be tempted to jump straight to conviction [8] since the trier of fact does not have to deal with other witnesses, independent evidence or physical evidence. However, the reverse can also be true. A finding of adverse credibility against the accused may cause the trier of fact to jump straight to conviction. Put another way, simply because of the nature of the evidence called, namely it being only the accused and the complainant, the possibility of mistake or conflating the issue of credibility and proof beyond a reasonable doubt is greater.

[6] This type of trial also causes potential analytical problems simply because the entirety of the evidence consists of only the two witnesses, and the grounds for rejecting the accused’s evidence may be the reasoned acceptance of the complainant’s evidence. [9] In so doing, the trier of fact must be mindful that it is an error to set the evidence of the accused against that of the complainant as a contest of credibility, determining the “winner” of the criminal trial. However, it is not, and cannot be, an error to compare the evidence of opposing witnesses. The error arises only if the comparison is made without regard to the burden and standard of proof on the Crown [10].

[7] As explained by Justice Cromwell (as he was then) of the Nova Scotia Court of Appeal in R. v. Chittick:

It is not an error for a judge to make a finding of credibility as between the complainant and the accused, particularly where they provide the bulk of the evidence as to what happened. This is a necessary part of the judge’s duty. While it is not the end of the journey of decision-making, it is a necessary intermediate step along the way.

Accordingly, it was not an error for the trial judge here to assess the credibility of the accused in relation to that of the complainant. His statement that “I’m satisfied that where there is any variance in the evidence of the two parties, I accept the evidence of [C.J.] . . . with respect to sexual behaviour that evening” was a necessary part of the task he had to perform on his way to reaching a conclusion.

An error under the W. (D.) principle is committed where the judge treats the matter as concluded once this assessment of credibility has been completed. To do so misses the third and critical step in the application of the burden of proof. [11]

[8] In fact, viewing the evidence of the accused in isolation, not in the context of the complainant’s evidence, would be an error as the Court of Appeal stated in Hoohing:

He also properly told the jury that they were to weigh the evidence cumulatively and not in isolation. A jury does not consider an accused's version of events in isolation as if the Crown had led no evidence. When the jury is applying the first two prongs of the three-pronged test in W.(D.), they are deciding whether they accept the accused's version of events or whether it leaves them with a reasonable doubt. Clearly they can only do that by assessing the accused's evidence and the other evidence that favours the accused in the context of all the evidence. See R. v. Hull, [2006] O.J. No. 3177 (Ont. C.A.) at para. 5. The evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is given that is contradictory, or casts doubt on the accuracy or reliability of the witnesses' evidence, that evidence may no longer be believable, or in the case of an accused, may no longer raise a reasonable doubt. [12]

[9] The instruction from Supreme Court in Morin is that the trier of fact must consider the evidence as a whole to determine whether guilt beyond a reasonable doubt is established. [13]

Analysis

[10] B.B. is a nurse who specializes in diabetic care and hypertension. She is 60 years old and has been a nurse for 40 years. She works at a clinic in the area and sees clients on a regular basis. On August 15th, 2019, she had an appointment with J.G. She had seen him once before in 2016.

[11] According to B.B. upon J.G.’s arrival she would have been notified and then, after taking his weight, he would have been brought into the examination room. Thereupon a discussion would occur relating to J.G.’s current health status and the medications he was taking. After this discussion, she states that she began taking J.G.’s blood pressure, when for the first time he touched her breast with the back of his left hand. Of note, when B.B. asked about his exercise she testified that he said he was getting plenty of exercise with his Viagra and that B.B.’s presence was elevating his blood pressure.

[12] Initially, B.B. thought this was a mistake or an accident when J.G. first touched her breast. She then moved back from him so he would have to reach out to touch her. When it happened a second time, after she moved further away, B.B. testified that she realized it was intentional. Prior to the second rub of her breast, B.B. testified that he seemed angry when she moved away and slapped her breast.

[13] After the second rubbing incident, B.B. asserts that she confronted J.G. and stated to him that his behaviour was inappropriate, to which he replied “yeah, I know” and laughed.

[14] J.G., in his version of events, claims that he touched her breast inadvertently when B.B. “reefed” on his arm to pull the blood pressure cuff on. He denies the second incident of rubbing and the slapping of the breast. He claims that B.B. winked at him twice, rubbed up against him and was suggestive to him about his Viagra use.

[15] In re-examination B.B. denied any suggestion of winking or rubbing up against him.

[16] During the cross-examination of B.B., defense counsel questioned her at length about the position of J.G.’s arm during the blood pressure test. Counsel suggested that J.G.’s arm would have been elevated, hence the risk of inadvertent touching. On this significant point B.B was unshaken. B.B., a nurse for 40 years and specializing in hypertension, stated that she would not want the arm up since she would want the patient to be relaxed while taking their blood pressure. She goes on to state that if his arm was up, she would have asked him to put it down so he could be relaxed. I accept B.B.’s evidence on this point. Simply put, B.B.’s evidence makes sense. Moreover, J.G.’s own evidence on this point is concerning. He claimed that he was not looking at his arm when B.B. reefed on it, his stated reason was a fear of drawing blood. It had to be pointed out to him by his lawyer in examination in chief that drawing blood and a blood pressure test were not the same thing. To which he responded that it must have been a habit then. This makes no sense; the Court fails to see a connection between the fear of needles and a blood pressure test, or a habit formed by a fear of needles and the cuff of a blood pressure monitor. In addition to that, the answer of the habit only came out when it was pointed out to him by his lawyer that he was not getting a blood test. Therefore, based on the foregoing, I reject J.G.’s evidence that B.B. “reefed” on his arm resulting in her breast being touched inadvertently. I find that J.G. intentionally rubbed B.B.’s breast the first time in accordance with her evidence.

[17] Another important contradiction between the evidence of B.B. and J.G. was how Viagra came out in the conversation between them. B.B.’s evidence was that first she asked if there were any issues with the medication he was taking, with no specific reference to Viagra, and then when discussing exercise, J.G. mentioned that he was getting plenty of exercise with his Viagra. This was emphasized in cross-examination when it was put to her that she asked J.G. about his Viagra use and she stated that she had not. On the other hand, J.G. states that B.B. asked if he was satisfied with his Viagra and how long it lasted. If we add to that J.G.’s testimony that B.B. rubbed up against him and said, “behave yourself” and the winking, it appears clear that J.G. was suggesting that B.B. was coming on to him.

[18] Given my finding that the first touch of B.B.’s breast was intentional by J.G., and that the conversation about the Viagra occurred prior to this first assault, it, again, makes sense that any suggestive comment about the Viagra came from J.G. Put in this light, the evidence of J.G. about B.B. winking and rubbing up against him no longer seems plausible. Additionally, it shows that J.G. is willing to manipulate his evidence, and, therefore, I find that his evidence is not credible as a whole. As a result, J.G. fails on the first branch of the W.D. test.

[19] In relation to the second branch of W.D., again when I consider his evidence within the context of the evidence as a whole, it fails to raise a doubt. [14] Put another way, I find J.G.’s evidence not to be credible and his evidence in the context of all the evidence, namely that of B.B. and J.G., does not raise a reasonable doubt.

[20] I accept B.B.’s evidence. I find her to be a credible and reliable witness. She was not affected by cross-examination. There is no evidence of a motive to fabricate, [15] and her testimony was both internally and externally consistent.

[21] Defense counsel concedes that B.B. was credible, however he argues that I should have concerns because B.B. testified in a general fashion about her routines or what she typically does instead of what actually happened. While I agree that some her language was more generalized, I find that this does not detract from her credibility. First, the generalized comment or comments about what she typically does were not in relation to the two incidents of rubbing and one incident of slapping. Second, I find that by the nature of what she does as a nurse, she has a procedure, i.e. go to collect the patient, take his weight, ask questions about his medication etc. and this would obviously inform her testimony. Third, in cross-examination, defence counsel put to her things that did not occur according to her recollection which is why she relied on procedure or generalization to explain why they did not occur. Let me explain what I mean in relation to the salient point in the evidence about whether J.G.’s arm was raised and the first touching. B.B. testified that J.G. raised his own arm to rub her breast. When defense counsel put to her that J.G.’s arm could have been raised, which seen from of B.B.’s perspective was a hypothetical suggestion, B.B. responded that if it would have been raised it would have been her procedure to ask him to lower it. Basically, she could only respond to a hypothetical with a hypothetical, explaining what her procedure would have been. However, her evidence remained unequivocal: J.G. raised his own arm to rub her breast.

[22] Therefore, I find beyond a reasonable doubt that J.G. rubbed and slapped B.B.’s breast as she alleged and that J.G.’s touching of B.B.’s breast was intentional and constituted sexual assault. I make this finding of guilt based on the whole of the evidence that I accept, including the comments I find J.G. made regarding Viagra and B.B. making his blood pressure rise. [16]

[23] Finally, I note that the issue of the lack of evidence of the motive to fabricate has been a frequent topic of review in the Court of Appeal over the last few years [17]. I would like to make it clear that I am not making a finding that the crown has proven that there is no motive to fabricate. [18] I am only making a finding that there is an absence of evidence of a motive to fabricate. As such it is only one factor for me to consider in the credibility analysis. [19] Also, I re-iterate that lack of evidence of a motive to fabricate does not lead straight to the conclusion that the complainant is being truthful. My finding that B.B. was credible is based on the analysis of her evidence in the context of the evidence as whole, again, with the lack of evidence as to the motive to fabricate being only one factor. Finally, I acknowledge that the defence has no burden to prove that the B.B. had a motive to fabricate and it played no part in my findings of credibility of J.G. or B.B.

Conclusion

The Crown has met its burden. J.G. is convicted of a sexual assault on B.B.

Released: April 8th, 2021 Signed: Justice M.K. Wendl

[1] R. v. S. (J.H.) (2008), 2008 SCC 30, 231 C.C.C. (3d) 302 (S.C.C.). [2] Canadian Criminal Law Review, February, 2017 Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment David M. Paciocco [3] R. v. Y. (C.L.), 2008 SCC 2 at para. 6. [4] R. v. W.(D.), [1994] 3 S.C.R. 521. [5] R. v. Y. (C.L.), supra note 3, at para. 12. The full quote is as follows “I find it difficult to see how the sequence in which the trial judge set out her findings of credibility can be said to undermine her articulated and correct statement of the law, or demonstrate that she lost sight of a paramount legal principle like reasonable doubt.” [6] Ibid, at 32. [7] R. v. S. (J.H.), supra note 1, at para. 8. [8] R. v. Turmel (2004), 2004 BCCA 555, 197 C.C.C. (3d) 425 (B.C.C.A.), at para. 17. [9] R. v. J.J.R.D. [10] McWilliams' Canadian Criminal Evidence, 5th Edition Part V — THE GENERAL PRINCIPLES OF PROOF Chapter 28:20 — THE PERSUASIVE BURDENS-PROOF BEYOND A REASONABLE DOUBT-. Casey Hill, David M. Tanovich, Louis P. Strezos [11] R. v. Chittick, 2004 NSCA 135 at para. 23-25. [12] R. v. Hoohing, 2007 ONCA 577 at para. 11. [13] R. v. Morin, [1988] 2 S.C.R. 345. [14] R. v. Hull, [2006] O.J. No. 3177 (ONCA) at para 5. [15] On this issue of the lack of evidence of a motive to fabricate I instruct myself that I must avoid doing following: i. [that] an accused has an onus to demonstrate that a complainant or witness has a motive to fabricate evidence; ii. the absence of a demonstrated motive to fabricate necessarily means that there was no motive to fabricate; or iii. that the absence of a motive to fabricate conclusively establishes that the complainant or witness is telling the truth. R. v. John, 2017 ONCA 622, [2017] OJ No 3866 (ONCA) at para 95. [16] The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer" (Taylor, supra, per Laycraft C.J.A., at p. 269). The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant (see S.J. Usprich"A New Crime in Old Battles: Definitional Problems with Sexual Assault" (1987), 29 Crim. L. Q. 200, at p. 204.) R. v. Chase, [1987] 2 S.C.R. 293. [17] Please see R. v. Ignacio, 2021 ONCA 69; R. v. W.R., 2020 ONCA 813; R. v. Bartholomew, 2019 ONCA 377 [18] R. v. Ignacio, 2021 ONCA 69 at para. 31 [19] Ibid at para. 52