WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows: 486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of ( a ) any of the following offences: (i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or ( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) . (2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall ( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and ( b ) on application made by the victim, the prosecutor or any such witness, make the order. 486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2021 08 18 COURT FILE No.: Guelph #19/3934
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
S.S.
Before Justice M.K. WENDL Heard on June 21 and 22, 2021 Reasons for Judgment released on August 18th, 2021
Counsel: R. Butler........................................................................... Counsel for the Provincial Crown D. Schell.......................................................................................................... Counsel for S.S.
WENDL J.:
[1] S.S. is charged with a sexual assault in relation to S.W. The complainant, S.W., was a PSW worker at the time of the incident. She alleges that during a routine visit to S.S.’s, a paraplegic, to assist with his morning routine, S.S. groped and kissed her. On the other hand, S.S. testified nothing occurred.
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 as well. 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 the accused has not proven their innocence. 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” [^2].
[4] The W.D. formula is not a magical incantation. [^3] It does not require that I analyze the evidence in any particular order. [^4] While mere reference to it will not save its evident misapplication [^5], 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. [^6] 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 [^7] 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. [^8] 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. [^9]
[7] Finally, the instruction from the Supreme Court in Morin must be remembered when conducting this analysis. The trier of fact must consider the evidence as a whole to determine whether guilt beyond a reasonable doubt is established. [^10]
Analysis
[8] S.W. was a PSW at the time of this incident. S.S. was one of her clients. S.W. had given her notice to her employer and had one week left of work. She was leaving to St-Thomas. Both S.W. and S.S., in their testimony, effectively agree on the events that surround the incident. Putting it concisely, S.W. came to help S.S. with his morning routine and, when completed, she left.
[9] Where they differ is that S.W. testified that at some point during the morning visit S.S. grabbed her, tried to put his hand up her shirt, down her pants and kissed her neck. Effectively, he was trying to grope her. S.S., in his testimony, simply denies that this took place.
[10] In assessing S.S.’s testimony, I find him not credible. S.W. is 5’3’. She testified that even though S.S. is in a wheelchair his head arrives to her nose. S.S., initially in his testimony, would not even admit that he could reach her or that he was even aware as to how tall she was. The following exchange is telling:
Q. Okay, but I’m – okay, thank you, and you’ve made that clear. But what I’m simply asking you is that for Ms. W. standing next to your chair, you could have easily reached her chest if you tried, correct ? A. Maybe, I don’t know. I didn’t do that and I don’t know. Q. Well, okay. I’m going to suggest you do know. Like, the woman looked after you for six months. You agree she’s five-two, correct? A. I don’t know. I didn’t know that. Q. Okay, well, you’ve agreed that you were almost eye-level when she was standing next to your chair, is that still true? A. There is a possibility. Maybe she is. Q. Sorry, go ahead. A. Approximately, yeah, maybe she’s – I never paid attention to that. Q. Okay, sir, you’ve given your testimony in some detail including remembering her putting your socks on. A. Yes. Q. We’re talking about the height – I’m asking you about the height difference relating to a woman who looked after you for six months. Thinking back, it’s accurate the top of your head came up to about her nose? A. It’s possible. Maybe yes. I did not pay attention. Q. Well, how’s your memory in that regard? A. Approximately it is, yes, but I didn’t pay attention. Q. Okay, sure, okay. But then you’ll agree with me that if you tried, it would have been very easy for you to reach out and touch her in the chest area. A. I did not do that. I don’t know, maybe, maybe it can be done but I didn’t try that. Q. Thank you. Maybe I’ll put it a different way. You would have been able to reach the top of her head, correct? MADAM INTERPRETER: I’m sorry, can you repeat the question? MR. BUTLER: Q. Mr. S. – from your wheelchair you would have been able to reach her forehead with either of your hands. A. If she was really very close to me, maybe. Q. Why maybe? Isn’t it yes? A. Yes.
[11] This exchange demonstrates that S.S. would not admit the obvious. It is only after some cajoling by the prosecutor that he finally admitted that he might be able to reach her in the areas she described where the assault took place. Clearly, he was trying to minimize his evidence on this crucial point. This detracts from his credibility. As a result, on the first step of the W.D. analysis I do not accept his evidence.
[12] 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 does not leave me with a reasonable doubt. [^11] Put another way, I do not find S.S.’s evidence to be credible and his evidence in the context of all the evidence, namely that of S.S. and S.W., does not leave me with a reasonable doubt.
[13] I accept S.W.’s evidence. I find her a credible and reliable witness. There is no evidence of a motive to fabricate. [^12] In particular, since she was cross-examined at length on a financial motive to bring this complaint forward by defence counsel, I make a specific finding that she was not motivated by money to bring this complaint forward. Defence counsel conceded it was open to me to make this finding in relation to the money issue given the evidence at trial.
[14] Although there were inconsistencies in S.W.’s testimony as it related to the narrative of the assault, they do not detract from her credibility. For example, it was put to her in a prior statement that she stated S.S. grabbed her forearm first whereas she testified in court that the first thing S.S. did was try and kiss her. Also, her testimony in court appeared to be inconsistent about the number of times S.S. tried to kiss her. A final example of type of inconsistencies in S.W.’s testimony was that she did not say in her evidence in court that S.S. tried to kiss her chest, while she did in an earlier statement. Regarding these inconsistencies, I agree with the Crown’s analogy that her testimony amounts to recalling a wrestling match a year and half after the fact and then be expected to give a play by play of the acts. Ultimately, some inconsistencies are to be expected in this context. I will add, however, that these inconsistencies do not alter the core of the allegation. The allegation is that S.S. tried to grope and kiss S.W. while she was assisting him with his morning routine. The inconsistencies revolve around the order of things happening or how many times S.W. tried certain things, again, something to be expected. Therefore, it does not detract from her credibility.
[15] In addition to that, I note three other facts. S.W. was visibly upset during her testimony, she did not exaggerate, and she has now changed careers because of the incident.
[16] First, I acknowledge that in-court demeanour evidence, the lack of exaggeration, lack of evidence of a motive to fabricate and what effectively amounts to post-offence conduct evidence of the complainant should be treated with caution.
[17] In-court demeanour evidence is a factor that can be considered. It is only when the court puts too much weight on this factor that the court falls into error. As the Alberta Court of Appeal succinctly stated:
While it is permissible to consider demeanour as a factor in the assessment of a witness’s credibility, the issue is whether the trial judge, in his assessment of the complainant’s credibility placed undue weight on her demeanour. The line is crossed and the error occurs when a trial judge’s assessment of the witness’s demeanour becomes the sole or dominant basis for determining credibility, and where the trial judge appears to be unaware of the risks associated with over-reliance on demeanour: R v Bourgeois, 2017 ABCA 32 at para 21. [^13]
[18] Here, demeanour is only one small factor I am taking into account.
[19] As it relates to a finding that the complainant did not exaggerate her testimony, it should be used with caution. As the Ontario Court of Appeal stated in Kiss.
On the other hand, in my view, there is nothing wrong with a trial judge noting that things that might have diminished credibility are absent. As long as it is not being used as a makeweight in favour of credibility, it is no more inappropriate to note that a witness has not embellished their evidence than it is to observe that there have been no material inconsistencies in a witness’ evidence, or that the evidence stood up to cross-examination. These are not factors that show credibility. They are, however, explanations for why a witness has not been found to be incredible. [^14]
[20] Again, the finding of a lack of exaggeration does not enhance S.W.’s credibility but it does help explain why she was not found incredible or, put another way, it is the absence of something that would diminish her credibility. Finally, on this point, I am not making the inference that because the assault could have been worse that the complainant therefore is being more truthful. [^15]
[21] On the issue of her post offence conduct, namely changing her career as a result this incident, it is a factor open to this court to consider. Specifically, she testified that she is currently a tech support for local hospitals and that she would not consider returning to work as PSW since she now has a hard time dealing with male clients. On this issue, the Court of Appeal stated in O(R.), in a different context:
Triers of fact are capable of relying on their common sense and experience to understand why a complainant may act in a certain way. The Court of Appeal of Alberta in R. v. N. (R.A.), 2001 ABCA 68, 152 C.C.C. (3d) 464 (Alta. C.A.), at para. 20, found this to be the case in the context of sexual offences and evidence of declining academic performance, running away, and rebelliousness. [^16]
[22] That being said, there is very little guidance from the Appellate Courts on how to deal with post-offence conduct by the complainant. In addition to that, there is a significant danger in engaging in stereotypical reasoning on this point. Therefore, I would only say this- S.W.’s behaviour after the fact is consistent with her allegation of being assaulted. Much like the absence of evidence of motive to fabricate, there may be many reasons why she would have wanted to change her career, only known to herself. Therefore, like the absence of evidence of a motive to fabricate, post offence conduct of the complainant is simply one factor to consider and the Courts must avoid making a finding that because she acted in the manner consistent with being a victim of a sexual assault, she must be telling the truth.
[23] Lastly, 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 except as it relates to financial benefit. [^18] I am only making a finding that there is an absence of evidence of a motive to fabricate generally and that specifically she was not motivated by financial gain to bring the complaint forward. 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 S.W. 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 S.W. had a motive to fabricate and it played no part in my findings of credibility of S.S. or S.W.
[24] Therefore, having considered the totality of the evidence, I found S.W. to be a credible and reliable witness. I accept her evidence regarding the core of the sexual assault allegation, namely that S.S. groped and kissed her. Her testimony about the assault was not shaken on cross-examination. There were no material inconsistencies that detracted from her credibility and reliability as a witness. Her demeanor was consistent with the ordeal she endured. I found as a fact that she was not motivated to make the complaint for money, and otherwise there was an absence of evidence of any other motive to fabricate. S.W. was not prone to exaggeration and her post-offence conduct was but one of the factors I took into consideration when I assessed her evidence. To put it simply, S.W. was a compelling and believable witness. As a result, I find beyond a reasonable doubt that S.S. committed a sexual assault on S.W. [^20]
Conclusion
[25] The Crown has met its burden. S.S. is convicted of sexual assault on S.W.
Released: August 18th, 2021 Signed: Justice M.K. Wendl
[^1]: R. v. S. (J.H.), 2008 SCC 30, 231 C.C.C. (3d) 302 (S.C.C.) [^2]: R. v. Y. (C.L.), 2008 SCC 2, at para. 6 [^3]: R. v. W.D., [1994] 3 S.C.R. 521 [^4]: R. v. Y. (C.L.), 2008 SCC 2, at para. 12 [^5]: R. v. Y. (C.L.), 2008 SCC 2, at para. 32 [^6]: R. v. S. (J.H.), 2008 SCC 30, 231 C.C.C. (3d) 302 (S.C.C.), at para. 8 [^7]: R. v. Turmel, 2004 BCCA 555, 197 C.C.C. (3d) 425 (B.C.C.A.), at para. 17 [^8]: R. v. J.J.R.D. [^9]: R. v. Chittick, 2004 NSCA 135, at paras. 23-25; R. v. Hoohing, 2007 ONCA 577, at para. 11 [^10]: R. v. Morin, [1988] 2 S.C.R. 345 [^11]: R. v. Hull, at para. 5 [^12]: R. v. John, 2017 ONCA 622, at para. 95 [^13]: R. v. Bourgeois, 2017 ABCA 32, at para. 21 [^14]: R. v. Kiss, 2018 ONCA 184, at para. 53 [^15]: R. v. G.D., 2021 ONCA 414, at paras. 19-20 [^16]: R. v. O(R.), 2015 ONCA 814; R. v. N. (R.A.), 2001 ABCA 68, at para. 20 [^17]: 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]: R. v. Ignacio, 2021 ONCA 69, at para. 52 [^20]: R. v. Chase, [1987] 2 SCR 293