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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2022 10 26 COURT FILE No.: Toronto 20-55001542
BETWEEN:
HIS MAJESTY THE KING
— AND —
DIEGO DONCEL
Before: Justice Peter N. Fraser
Heard on: November 18, 22, 25, 30, 2021; December 1, 2, 7, 9, 2021; January 12, 17, 20, 31, 2022; February 1, 2, 3, 4, 2022; March 14, 31, 2022; April 4, 5, 6, 2022; May 5, 20, 2022; July 11, 12, 2022; September 22, 2022.
Reasons for Judgment released on: October 26, 2022
Counsel: A. Rajan................................................................................................. counsel for the Crown D. Gravesande...................................................... counsel for the accused Diego Doncel
Fraser J.:
Introduction
[1] Diego Doncel stands charged with one count of sexual assault against R.W. on May 27, 2020. The central issues in this trial are the credibility and reliability of the complainant, who is a differently abled person with significant cognitive deficits.
[2] R.W. suffers from a mental disability which has been characterized as global developmental delay, developmental disorder and intellectual cognitive disorder. She also suffers from epileptic seizures. R.W. was 39 years old at the time of the alleged offence. She has deficits around such things as memory, vocabulary, linguistic comprehension, sentence structure, and understanding spatial and temporal relationships. Her cognitive abilities do not necessarily correspond to any one particular age, as her strengths are greater in some areas than others. In most respects, her abilities are akin to those of a young elementary school child.
[3] On May 27, 2020, R.W. was with her father at a Shoppers Drug Mart in Toronto. A young man on a bike, who identified himself as James, engaged her in conversation and asked if he could take her for ice cream. The complainant’s father, H.W., requested a name, address and phone number from the man. He was given the name James Fulton, an address of 140 Sixteenth Street, and a phone number which he tested on the spot and confirmed. The complainant’s father also took a short series of photos of the man on his cellular phone. He then permitted R.W. to accompany the man on the bike.
[4] R.W. testified that the young man led her into an alley behind the Shoppers Drug Mart and sexually assaulted her. She returned home after the incident and disclosed the sexual assault to her father. Police were called the next day.
The Burden and Standard of Proof
[5] Mr. Doncel is presumed innocent in law. The Crown must prove the essential elements of the offence beyond a reasonable doubt. The burden of proof rests squarely on the Crown throughout the trial and does not shift to the defence at any point.
[6] A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence: R. v. Lifchus, [1997] 3 S.C.R. 320. Even if I believe the accused is probably guilty or likely guilty, that is not sufficient to ground a conviction.
The Issue of Identity
[7] R.W. was not asked to identify the accused in court, nor was any photo line-up conducted with her. The Crown relies principally on the cell phone photographs H.W. took of the person who identified himself as James. The image quality of these photos is high, and the subject’s features are clear and well defined.
[8] This trial proceeded over the course of several days, both in person and via remote video technology. I had ample opportunity to observe Mr. Doncel and to compare his appearance to the man in the photos as contemplated by the Supreme Court in R. v. Nikolovski, [1996] 3 S.C.R. 1197.
[9] The hair colour and skin tone are the same. Mr. Doncel has a round face, the corners of his mouth angle downward and his earlobes flare out at the bottom. All of these features are evident on the man in the photographs. The line of Mr. Doncel’s moustache is very much the same as what appears in the photos, though he now has the addition of a beard. The hair line across Mr. Doncel’s forehead is distinctive and matches what I see in the photos. There is a mole on Mr. Doncel’s face just under the corner of his left eye, and another one about an inch away from the right corner of his mouth. Both are visible on the man in the cell phone photographs. The man in the photos has a third mole directly under his mouth, but that portion of Mr. Doncel’s face is now obscured by facial hair. There is nothing about Mr. Doncel’s appearance that would exclude him as the suspect in the photos.
[10] I am satisfied beyond a reasonable doubt that Mr. Doncel and the man who identified himself to the complainant as James are one and the same. Having made that finding on the basis of the photographs alone, I need not consider the in-dock identification evidence of H.W. or the admissibility of Mr. Doncel’s RICI photo, which was retrieved from a police database.
[11] I am satisfied beyond a reasonable doubt that Diego Doncel is the person who approached R.W. at the Shoppers Drug Mart on May 27, 2020 and that he is the person she alleges to have sexually assaulted her. This does not end the matter, as identity is but one element of the offence charged.
The Capacity Inquiry
[12] At the outset of the trial, the defence challenged R.W.’s capacity to testify, pursuant to s. 16 of the Canada Evidence Act. I found there was a live issue as to capacity and convened an inquiry. R.W. testified on the inquiry without any testimonial aids and I ruled that she was competent to testify at trial: R. v. Doncel, 2022 ONCJ 662, February 26, 2022.
[13] Some of R.W.’s strengths and weaknesses became apparent during the capacity inquiry. She was able to communicate basic information. She provided her date of birth to the Court. She explained that she attended programming at a local church on Wednesdays and Fridays, where she engaged in activities such as sewing, baking and cooking. She testified that she lives with her father and traveled to the courthouse via two buses that morning. She testified that she liked to listen to music and enjoyed songs by Lady Gaga and Brittany Spears.
[14] R.W. was able to distinguish between simple true and false statements. For example, she rejected the suggestion that it was summertime and correctly observed there was snow outside. She correctly indicated there were windows in the courtroom, there was no hole in the ceiling and that my robes were black. Her answers suggested a basic ability to perceive, recall and communicate events in a courtroom setting.
[15] Some deficiencies were readily apparent too. R.W. did not understand the nature of an oath or solemn affirmation. She was asked about the victim witness assistance worker, who was seated beside her in court. She claimed to have met this worker for the first time that morning, but the Crown acknowledged this was false as the two had met before. R.W. was also inconsistent about what she had done over the weekend.
[16] The questions posed at the inquiry were appropriately simple and short: R. v. D.A.I., 2012 SCC 5 at para. 78. For the most part, this allowed R.W. to communicate successfully. Her answers were generally responsive to questions. She appeared to comprehend what she was being asked and was able to respond in a way that I could understand. I found that R.W. had a basic ability to perceive, recall and communicate the contentious portions of her evidence for the purposes of s. 16 of the Canada Evidence Act.
[17] That being said, the weaknesses that I detected during the capacity inquiry are properly considered as matters of weight in the context of the trial proper: R. v. D.A.I., supra, at paras. 72-73; R. v. Parrott, 2001 SCC 3 at para. 56; R. v. Marquard, [1993] 4 S.C.R. 223 at paras. 13-14.
The Communication Intermediary
[18] Ms. Rajan brought an application on behalf of the Crown, pursuant to s. 6(2) of the Canada Evidence Act, seeking an order allowing R.W. to testify with the assistance of a communication intermediary. This relatively new profession has emerged in Canada to assist people with communication disabilities in a variety of activities and contexts. In this case, the intermediary proposed a combination of visual aids, hand drawn words and sketches, verbal comprehension checks, and physical gestures to assist the witness. I allowed the application: see R. v. Doncel, 2022 ONCJ 143.
[19] R.W. was assisted by Bobi Tychynski-Shimoda, a speech language pathologist and designated communication intermediary under Communication Disabilities Access Canada. In my ruling, I set out a detailed procedure designed to minimize distortion and enhance the reliability of the interpretive process. Importantly, it was only the questions that were interpreted by the intermediary. R.W.’s answers came directly from her. I am satisfied that the evidence I heard represented the complainant’s own narrative of events. In my view the communication intermediary was a valuable addition to the trial process and did not compromise trial fairness.
Assessment of Evidence in Cases of Cognitive Disability
[20] The Crown submits that I should evaluate R.W.’s evidence as I would that of a child witness. Our courts have long recognized that children experience the world differently from adults and their testimony must be assessed differently, with less emphasis on precise details surrounding such things as time and place: see R. v. W.R., [1992] 2 S.C.R. 122, at para. 24. In R. v. B.G., [1990] 2 S.C.R. 30 at para. 48, the Supreme Court made the following observations:
While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children.
[21] There is authority for the proposition that the same approach can apply to adult witnesses with a mental disability. In R. v. Parrot, supra, at para. 60, the Supreme Court held that trial judges are able to assess such matters as “childlike mental condition” or “poor ability to sustain questioning” without expert assistance. In R. v. K.B., 2022 ONCA 253, the Court of Appeal confirmed that the trial judge in that case was correct to approach the evidence of a 24-year-old woman with an intellectual disability as he would the evidence of a child. The Court of Appeal reached a similar conclusion in R. v. U.A., 2019 ONCA 946, holding as follows at paragraph 6:
The trial judge also understood from the complainant's own testimony that the complainant suffered from conditions affecting his attention span, mental development, and memory, and therefore carefully considered his evidence in that light. Far from applying uneven scrutiny to the evidence, the trial judge properly assessed the complainant's credibility and evidence "by reference to criteria appropriate to [his] mental development, understanding and ability to communicate.”
[22] In this case, there is no question that R.W. experiences the world differently from most adults. And there is no question that she communicates about her experiences differently. As stated already, her abilities are akin to those of a young elementary school child in most respects. In some areas, notably memory and temporal sequences, her deficits are even more profound.
[23] The defence submits that the above line of authority has limited application here, as R.W. had the assistance of a communication intermediary. I disagree. The intermediary helped R.W. to better understand the questions posed and to more effectively communicate her evidence to the Court. However, this process was far from perfect. And the assistance provided could not mitigate R.W.'s difficulties with respect to perception and memory. The communication intermediary can hardly be said to have levelled the playing field between the complainant and a typical adult witness.
[24] In my view, it is generally correct to approach R.W.’s evidence as I would the evidence of a child. I would refine that approach, however, along the lines expressed in R. v. U.A, supra, and assess her testimony by reference to criteria appropriate to her mental development, understanding and ability to communicate as revealed in the evidence. I am aware that R.W.’s abilities are stronger in some areas than others and do not necessarily correspond to any one particular age range. I am mindful of the Supreme Court’s caution in R. v. Slatter, 2020 SCC 36 at para. 2, that courts should be wary of relying on general characteristics when assessing the evidence of a person with an intellectual or developmental disability. Instead the focus should be on, “the individual’s veracity and their actual capacities as demonstrated by their ability to perceive, recall and recount the events in issue, in light of the totality of the evidence.”
The Complainant’s Videotaped Statement
[25] The Crown tendered the complainant’s videotaped statement to police, pursuant to section 715.2 of the Criminal Code. R.W.’s viewing of the video in court was interrupted by frequent seizures, which almost led the Crown to abandon the process. The seizures were sometimes obvious and at other times almost imperceptible. I expressed my concern about R.W.'s health and well-being. The Crown conferred with her, and with her father who was present in the courthouse throughout the trial, and explained to me that seizures were a daily fact of life for R.W. and that she wished to continue testifying. It appeared to me that revisiting the allegations was causing her significant stress. R.W. persevered and was ultimately able to view the entire video. She adopted the contents and the statement was admitted into evidence.
[26] In the statement, R.W. reported that the young man she knew as James led her to an alley and touched her whole body. She said he pinched and bit her breasts, grabbed her butt, put his tongue in her mouth and touched her vagina so hard it hurt. He pushed her on the ground or she tripped and fell. She further claimed that he pulled his pants down and told her to suck his penis. It is not clear from the video statement whether he actually forced his penis into her mouth. R.W. was clear that she did not consent to any of the sexual activity.
[27] In the statement, R.W. was able to answer certain simple questions in a manner that was responsive and indicated her understanding. However, many other answers were not responsive to the questions asked and raised serious concern about her comprehension. For example, she was asked when in the sequence of events she was pushed down and she answered, “It was the very corner of the wall.” She was asked how long the man’s penis was in her mouth and she answered, “At twelve o’clock in the afternoon.” When asked if it was a short time or a long time, she answered it was “four times.” When asked how tall the man was, she answered, “He’s white.” And she provided a long series of unresponsive answers to repeated questions about how the assault ended.
[28] In general, the complainant had a very difficult time describing events in any kind of chronological sequence. She did not appear to know how old she was, as she deferred this question to her father. Some issues with vocabulary were also apparent. R.W. did not appear to understand the distinction between breasts and nipples. She appeared to confuse the words insult and assault. And she did not know what the word detective meant.
[29] When I assess the substance of the videotaped statement to police, I consider that R.W. did not have the assistance of the communication intermediary. It is also apparent that the investigating officers did not have a complete understanding of the nature of her cognitive deficits. They were unable, at that early stage of the investigation, to tailor their questions to suit R.W.’s particular abilities.
Cross-Examination of the Complainant
[30] The cross-examination of R.W. was a long and difficult endeavour. There was a marked difference in her ability to participate in this part of the process. R.W. was able to communicate successfully during the capacity inquiry, where the questions tended to involve very simple statements of fact. She was relatively successful during the examination in-chief that followed the adoption of her videotaped statement.
[31] Cross-examination was another matter entirely. R.W. required the assistance of the communication intermediary for the vast majority of the questions. The questioning was interrupted by a number of seizures. The process by which the intermediary assisted her was, by its very nature, methodical and slow. Questions had to be repeated frequently. The intermediary often had to attempt several different modes of interpretive assistance in order to communicate a question to the witness. R.W. clearly struggled to recall what she had said in her statement to police and on prior occasions in court.
[32] I wish to stress that counsel’s conduct during the cross-examination was both patient and fair. In addition, the communication intermediary provided R.W. with valuable assistance. She was afforded every reasonable opportunity to understand and respond to questions in cross-examination.
[33] In my view, the difficulty resulted from the nature of the exercise itself. Questions posed in cross-examination are necessarily more complex and involve a higher order of cognitive ability to follow. In cross-examination, a witness is required to do a great deal more than simply state a fact. Impeachment on a prior inconsistent statement is an instructive example. In this scenario, the witnesses must first recall that she has made a statement at some previous time (this alone was a significant hurdle in the present case). The prior questions and answers are normally read to the witness by counsel and are either admitted or otherwise proved. The witness must then recall that she has made another statement at some different time (often in court just prior to being impeached). She must appreciate there is an inconsistency between the two statements. Then she must understand that counsel is challenging the veracity of one or both of the statements on account of the inconsistency and that there are implications for her credibility and reliability. Having understood all that, the witness may attempt to explain the inconsistency. This is a complex cognitive activity and, in my view, R.W. was generally unable to engage in it.
[34] In this case, the process was tailored to R.W.’s circumstances as much as was possible. Visual aids were used to help her identify when the prior statement was made. She was shown a still image of herself in the police interview room whenever counsel referred to a statement she had made to police. I authorized the taking of a photograph of her in the witness stand, pursuant to the Courts of Justice Act, which was shown to her whenever counsel referred to a statement she had made in court. As R.W. rarely recalled making the prior statement, both counsel would agree that the statement had been made wherever possible and I would instruct the witness accordingly. The intermediary further assisted R.W. by rephrasing or repeating questions, and through the use of hand gestures, visual aids and sketches.
[35] Despite the careful procedure employed in this case, I did not have the sense that R.W. understood she had made inconsistent statements in most cases, or that the veracity of her account was being challenged on account of the inconsistencies. This kind of impeachment made up the bulk of the cross-examination in this case. In most instances, after multiple attempts and every available kind of assistance, the contradictions were left unanswered and essentially unresolved.
[36] As an example, R.W. reported in her statement to police that James pulled her pants down and touched her vagina. At a later point in the same statement she said that her pants never came off. During examination in-chief, R.W. testified that her clothes were on when James touched her vagina. In cross-examination, she testified that her pants were off when James touched her vagina. Defence counsel confronted R.W. with these inconsistent statements. She received extensive assistance from the communication intermediary, and from the Court, on this subject. During this line of questioning she responded, “I don’t know what happened”, “I don’t know how my pants came down” and “I wasn’t sure.” It was never clear to me that she understood the implications of these inconsistent statements and no real explanation for them was ever achieved.
[37] As another example, R.W. said in her statement to police that James’ penis was soft when he pulled it out. During cross-examination she said it was hard. Counsel attempted to confront her with this inconsistency. Despite extensive assistance from the communication intermediary, and my own repeated attempts to clarify the question for her, R.W. appeared unable to comprehend the difference between the two statements. Visual aids were produced by the intermediary and the witness was able to correctly differentiate between a hard and soft penis. But when asked what her answer had been a few minutes earlier, she identified the wrong visual aid.
[38] There were many more inconsistencies in R.W.’s evidence, often relating to material points. For example, in her statement to police she made no mention of James’s penis touching her vagina. During examination in-chief, she testified that James touched her vagina with his penis. This answer was carefully clarified through the communication intermediary and via the use of pictorial aids. When defence counsel attempted to cross-examine on this inconsistency, R.W. did not remember the answer she had given in-chief. This inconsistency was particularly significant, as it concerned what would have been among the most egregious and memorable of the alleged sexual violations. I appreciate R.W.’s challenges when it comes to memory. But it is concerning that there was no mention of this act in her original statement to police, when her memory of the events would have been most reliable.
[39] During cross-examination, R.W. testified for the first time that James put his mouth on her vagina. This point was confirmed with the assistance of the intermediary using visual aids. The complainant was questioned about why she did not say that in her statement to police and she offered the explanation, “maybe I forgot”. After continued questioning, she was asked again what parts of James’ body touched her vagina and she indicate his penis, but nothing else. This portion of R.W.’s evidence was particularly troubling. In this instance a very specific and serious allegation surfaced for the first time in cross-examination, an explanation was attempted, and then the allegation vanished.
[40] In her statement to police R.W. reported that James threw her phone on the ground. During cross-examination, she testified that her phone remained in her purse. This apparent inconsistency could potentially be reconciled, as the complainant also said that James threw her purse on the ground in her statement to police. She may have meant that he threw her purse with her phone inside it. However, there was a more problematic contradiction concerning the phone. In cross-examination, R.W. asserted that James broke the phone and that she showed the broken phone to her father. There was no mention of the phone being broken in her statement to police. And H.W. testified that he was never shown a broken phone.
[41] The Crown acknowledges that R.W. made a number of assertions that were objectively wrong. She testified that police officers showed her a picture of James Fulton during her videotaped interview. When pressed on this point she said that she was sure this had happened. The videotaped interview was made an exhibit at trial and it is clear the police did not show R.W. a picture. At another point, she claimed that her father told James off when he came out of the Shoppers Drug Mart. H.W. contradicts her evidence on this point. And later on she testified that both she and James were standing when he put his penis in her mouth. This would be anatomically implausible.
[42] As the proceedings unfolded, I came to be troubled by a particular tendency on R.W.’s part. When she did not understand a question, she would not alert anyone to that fact. She would frequently answer the question anyway. This came to be detected because certain answers were so clearly unresponsive as to trigger an inquiry into whether the initial question had been understood. The danger is that this dynamic may not always have been detected. R.W. may have ventured answers that appeared responsive on their face, without understanding what she was being asked. I repeatedly asked her to tell me if she had trouble with a question, but she very rarely did.
[43] The communication intermediary crafted a special visual aid to address this problem. The visual aid had three boxes designed to allow R.W. to identify when she could not remember the answer to a question; could not understand a question; or knew the answer to a question but could not find the words to explain it. The boxes were labelled “can’t remember”, “don’t understand” and “can’t explain.” This visual aid, and my instructions surrounding it, were intended to encourage R.W. to alert me to any difficulties she had with the questions. Despite these efforts, there continued to be occasions when she answered questions she clearly did not understand.
[44] R.W. was inconsistent about many other points, including: whether her bra was on or off when James touched her breasts; whether a truck driver witnessed the assault and whether she called out to him for help; whether James bit or sucked her breasts; what she said to James during the incident; whether James grabbed her purse; whether she was pushed down or tripped; the number of alleyways to which she was taken; and how the assault ended.
Spontaneous Utterances
[45] The Crown seeks the admission of R.W.’s out of court utterances to her father when she returned home after the alleged events in the alley. The Crown submits these utterances are admissible under the spontaneous utterance exception to the hearsay rule. As R.W. testified at trial, the out of court utterances also engage the rule against prior consistent statements. The Crown submits that they are admissible under the exception for narrative as circumstantial evidence.
[46] I have recently set out my understanding of these two related doctrines in R. v. Roberts, 2021 ONCJ 230 at paras. 20-30. I need not repeat that entire summary of the law here, but I incorporate that portion of the decision into these reasons by reference. What follows is a more focused summary of the essential principles. The rationale for the spontaneous utterance exception to the hearsay rule is set out in R. v. Khan, [1988] O.J. No. 578, affirmed, [1990] S.C.R. 531:
...a spontaneous statement made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received. [Emphasis added.]
[47] The passage above reveals that a spontaneous utterance becomes admissible where the possibility of concoction can safely be discounted based on the circumstances in which the statement was made: see also R. v. Nurse, 2019 ONCA 260 at paras. 77-88. And as the Court of Appeal recently observed in R. v. Camara, 2021 ONCA 79 at para. 85, the doctrine posits that the mind of the declarant is “so dominated by the event that the statement can be regarded as an instinctive reaction to that event thus giving the declarant no real opportunity for reasoned reflection or concoction.”
[48] In R. v. Dakin, [1995] O.J. No. 944 (Ont. C.A.) at para. 20, the Court of Appeal held that strict contemporaneity was not required and noted the admission of such statements is to be assessed, “not simply by mechanical reference to time but rather in the context of all of the circumstances obtaining at the time, including those which tell against the possibility of concoction or distortion.” This approach was confirmed more recently in R. v. Nguyen, 2015 ONCA 278 at para. 150 and R. v. Hartling, 2020 ONCA 243 at paras. 59-61.
[49] The utterances in this case are also subject to the general exclusionary rule respecting prior consistent statements: R. v. Stirling, 2008 SCC 10 at para. 5. One exception to this rule is for narrative as circumstantial evidence. The Court of Appeal explained this use in R. v. Khan, 2017 ONCA 114; leave to appeal refused, [2017] S.C.C.A. No. 139 at para. 31:
[S]ometimes the circumstances surrounding the making of the prior consistent statement are such that the statement assists in assessing the reliability and credibility of a witness' in-court testimony, giving prior consistent statements admitted as "narrative" a more substantive use: R. v. Dinardo, [2008] 1 S.C.R. 788, [2008] S.C.J. No. 24, 2008 SCC 24, at para. 39; R. v. Evans, [1993] 2 S.C.R. 629, [1993] S.C.J. No. 30, at para. 32. This is referred to as narrative as circumstantial evidence.
[50] In this case, H.W. testified that he left his daughter with James at about 11:10 am. He contacted James via text message at 12:20 pm asking where they were, and James responded that he had just left the complainant on Birmingham Street. She arrived home at 12:25 pm.
[51] According to the complainant’s father, she reported that James had taken her behind the Shoppers Drug Mart, where he began to kiss her and tell her he wanted to have sex with her. R.W. said that he put his hands all over her body, put his fingers in her vagina, bit her breasts and pulled out his penis and told her to suck it. She reported that he either pushed her or she fell to the ground and that she tried to pull her phone out and make a call. She said that he followed her part way home.
[52] In my view, it is not possible to reliably conclude when the interaction in the alley ended. It is, therefore, unclear exactly how much time passed between the event that is said to have subjected the mind of the complainant to stress or pressure and the utterances in question. The timeframe could have been as short as 10 minutes, but it could also have been over half an hour. In either case, there was some opportunity for reflection. The allegations R.W. made were not complicated and would not necessarily have required significant of time to concoct. The evidence concerning the degree of stress or pressure acting on the mind of the complainant was not particularly strong. H.W. testified that his daughter was upset and depressed when she arrived home. She was not distraught; however, she was angry. I also take into account that, according the complainant’s father, her narrative came out in a fragmented way and there is no clear record of what exactly was said.
[53] While R.W. may well have been affected by the stress and pressure of the events, I cannot say that her mind was so dominated by those events that I may safely discount the possibility of concoction. I find that R.W.’s utterances to her father are not captured by the spontaneous utterance exception to the hearsay rule. On balance, I do not find the utterances were expressed under circumstances that yield any more helpful criteria for evaluating the reliability or credibility of R.W.’s evidence than her in-court testimony itself affords. As such, the utterances do not constitute an exception to the rule against prior consistent statements either.
Other Considerations
[54] Some aspects of R.W.’s narrative are confirmed by other reliable evidence. First, video footage from the Shoppers Drug Mart confirms that Mr. Doncel was present at the location where he is said to have encountered the complainant. Second, part of R.W.’s interaction with Mr. Doncel was witnessed by her father, who confirmed the basic points that Mr. Doncel had engaged her in conversation and asked permission to take her for ice cream. Third, R.W.’s testimony that the man she knew as James bought her a drink is confirmed by video footage from Shoppers Drug Mart that shows Mr. Doncel buying a soft drink at 11:27 am and by H.W., who testified that his daughter arrived home with a soft drink she did not have previously. And fourth, the complainant’s testimony that she was followed part way home is consistent with Mr. Doncel’s text message to H.W. that he had left the complainant on Birmingham Street. These pieces of confirmatory evidence support R.W.’s account to some extent. However, I note that none of this evidence touches on the central components of the alleged sexual assault.
[55] There is no evidence of a motive on the part of R.W. to fabricate the allegations. Mr. Doncel was a stranger to her and there is nothing in this record which would suggest she harboured any animus toward him. This is a factor to consider in assessing the complainant’s evidence: R. v. Ignacio, 2021 ONCA 69 at para. 52. However, I instruct myself that an absence of evidence should not be equated with a proven absence of a motive to fabricate, and that the burden of proof cannot be reversed by requiring the accused to explain why the allegations were made: R. v. Gerrard, 2022 SCC 13 at para. 4.
[56] The Crown submits that Mr. Doncel’s intention to victimize R.W. can be inferred from the fact he lied about his name and address. I find these acts of deception to be highly suspect, and potentially consistent with the Crown’s theory of the case. Their impact is blunted, however, by the fact that Mr. Doncel allowed himself to be photographed by the complainant’s father and provided a real phone number, which he later answered. Since he could likely be identified from this information, and ultimately was, I find that the false name does not compel an inference of criminal intent.
Conclusions
[57] In many ways, I found R.W. to be an impressive witness. She showed remarkable perseverance as she weathered multiple seizures and extensive cross-examination. R.W. had the courage to stand up for herself in a public courtroom. She had the strength to withstand a process that was clearly stressful for her and was not well-suited to someone with her cognitive characteristics. I accept that she was making a genuine effort to recall the events in question and communicate her story to the Court. I believe that she is a truthful person.
[58] That being said, I have serious concerns about the reliability of her evidence. As set out above, there were significant inconsistencies touching on material points in the case. I have considered each of these points in light of R.W.’s particular cognitive abilities, as disclosed in the evidence. As would be the case with a child witness, I have not considered any imprecision concerning the details of time and place to be damaging to her reliability. I have not weighed mistakes concerning minute details or peripheral matters in the balance. Given her specific cognitive limitations around temporal sequences, I have not considered defects as to the order and timing of events to tell against her.
[59] However, I must also be careful not to excuse evidentiary defects of such magnitude as to effectively depart from the criminal standard of proof beyond a reasonable doubt. I must consider the potential explanations for the inconsistencies as may be disclosed by the evidence, but I cannot rationalize these defects away in a manner that deprives the defence of any ability to test the complainant’s evidence.
[60] I find that major inconsistencies remain unresolved on this record, many of which go to the heart of the alleged offence. I accept that many of these problems could be explained by R.W.’s cognitive deficits. However, it is also possible that she has misperceived, misremembered or miscommunicated central features of the alleged events. The limited confirmatory evidence in this case tends to relate to peripheral matters and does not alleviate the central concerns I have with respect to reliability.
[61] The sheer number and nature of evidentiary defects in the complainant’s testimony leaves me with a reasonable doubt about the core of the alleged offence. I find that it more likely than not that Diego Doncel sexually assaulted R.W. on May 27, 2020. In fact, I find it probable that he did. But on this record I cannot be sure. I am unable to find that the Crown has proven the case to the high standard of proof beyond a reasonable doubt.
[62] Accordingly, I find Mr. Doncel not guilty of the single count of sexual assault.
Released: October 26, 2022 Signed: Justice Peter N. Fraser