ONTARIO COURT OF JUSTICE DATE: 2022 04 07 COURT FILE No.: Brampton 3111 998 19 32495
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
S.F.
Before: Justice G.P. Renwick Heard on: 04, 05, 06 April 2022 Reasons for Judgment released on: 07 April 2022
Counsel: I. Osowski, counsel for the Crown J. Lopez, counsel for the Defendant S.F.
An Order prohibiting the publication of information that could identify the complainant has been made pursuant to s. 486.4 of the Criminal Code of Canada.
RENWICK J.:
INTRODUCTION
[1] The Defendant faces one count of sexual assault against his former wife, the complainant. The allegation involves two touches of the complainant’s breasts.
[2] The trial was brief and focused. Several concessions were made by the Defendant. The complainant and her work assistant testified for the prosecution. The Defendant testified on his own behalf.
[3] On an earlier occasion, I ruled that the Defendant could make use of an audio recording made six months after the alleged offence (but mere days before the Defendant was charged), which captured the parties arguing, wherein the complainant assaulted the Defendant.
[4] The sole issue for my determination is whether it is proven beyond a reasonable doubt that the Defendant sexually assaulted the complainant.
GOVERNING LEGAL PRINCIPLES
[5] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial, unless and until the court is satisfied that the charge has been proven, by admissible evidence, beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial. Proof beyond a reasonable doubt is a high threshold.
[6] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt but it lies much closer to absolute certainty than to proof on a balance of probabilities. R. v. Starr, 2000 SCC 40 at para. 242.
[7] If after considering all of the admissible evidence I am sure that the Defendant committed an alleged offence I must convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, then I have a reasonable doubt and an acquittal must follow.
[8] This case involves various witnesses and credibility assessments. In assessing witness credibility and reliability I have considered the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify to their recollections. It is also important to determine whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, reticent, and/or evasive.
[9] A trier of fact is entitled to accept some, none, or all of what a witness says while testifying. I have reminded myself to treat the evidence of all witnesses the same. Specifically, I am not to determine the value of a particular witness’ testimony because of her station in life or her role in the proceedings. That would be unfair, and it would completely undermine the presumption of innocence and the duty of the court to act impartially. Regardless of the witness’ role, I must apply even scrutiny to all of the evidence to determine the facts in the proceedings.
[10] A valuable means of assessing the credibility and reliability of any witness is to examine the consistency between what the witness said while testifying and what the witness has said or written on other occasions. I must also assess what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are inconsequential or significant to the case. If the inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.
[11] Given that the Defendant testified in this case, I must apply the framework provided by the Supreme Court of Canada in R. v. W.(D.), [1991] S.C.J. No. 26, as it is now understood, to determine whether the allegation is proven beyond a reasonable doubt.
[12] I rely heavily upon the article written by Paciocco J.A. entitled, “Doubt about Doubt: Coping with W.(D.) And Credibility Assessment” found at 2017 - 22 Canadian Criminal Law Review 31. Justice Paciocco re-constructs the W.(D.) principles into five propositions:
(i) I cannot properly resolve this case by simply deciding which conflicting version of events is preferred;
(ii) If I believe evidence that is inconsistent with the guilt of the Defendant, I cannot convict the Defendant;
(iii) Even if I do not entirely believe the evidence inconsistent with the guilt of the Defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt, and the Defendant must be acquitted;
(iv) Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and
(v) Even where I entirely disbelieve evidence inconsistent with guilt, the Defendant should not be convicted unless the evidence that is given credit proves the Defendant’s guilt beyond a reasonable doubt.
[13] In the next part, I will outline some of the evidence and provide an assessment of the testimony, with references to specific portions of the evidence. Although I will not refer to all of what a witness said, I listened to each witness carefully, I have taken detailed notes, and I have assessed all testimony for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and the witness’ ability to recall and communicate.
[14] I do not propose to recapitulate all of the evidence received during this trial. Suffice it to note that I have used ample and many opportunities during the trial and subsequent to its completion to review my notes, to review the exhibits, and to listen to parts of the digital recordings of the proceedings. I have thoroughly reviewed the evidence in this case, and I will only discuss parts of the evidence where it serves to underscore my findings. Lastly, I came to no conclusions about any of the testimony I heard until all of the closing submissions were made, and my review of the evidence was complete.
THE EVIDENCE
The Testimony of the Complainant
[15] The complainant is a complicated person. She testified about the “trauma” and “abuse” she has suffered at the hands of the Defendant for over 20 years during their relationship. She described the Defendant as “controlling” in subtle ways.
[16] Overall, I found the complainant to be compelling and at times quite credible.
[17] She testified about an incident in April 2019 when she met up with her husband, the Defendant, for a meal at a restaurant, to celebrate the birthday of one of their children and to pick up another child to take with her to work the next day. Due to her current position, the complainant has a residence in the city where she works, while the family home (at the time) was in another city.
[18] Around that time period, the complainant testified that things between the parties were tense. She was under a lot of stress at work. They agreed to meet at a restaurant in Mississauga because it was in between the family home and where she was working and sometimes living. The complainant remembered the blouse she was wearing as it was borrowed, due to its colour, to support a co-worker’s announcement.
[19] The complainant arrived in the area of the restaurant early with her assistant from work. Due to the nature of her occupation, the complainant’s assistant (“Mr. C.”) would often work long hours with the complainant and occasionally stayed, with the Defendant’s knowledge, as a guest of the complainant in the family home.
[20] The complainant bought a present for her child’s birthday and awaited the arrival of the Defendant and two of their children. The complainant was clear where she had parked, in the row of parking spaces just out front of the restaurant, facing the plaza, perhaps one store down from the restaurant.
[21] The complainant testified that during the dinner, everything was fine, but things were tense. She could tell that the Defendant was displeased to see her assistant present for a family occasion.
[22] Afterwards, she walked her younger child to the Defendant’s car. She described in detail what happened after she placed the child in the back seat. The Defendant came around his open driver’s door to where she stood to give her a hug goodbye. She saw that he had a look. She testified it was the look he would give her just before he would touch her breasts. She said, “no, don’t do it.”
[23] That did not stop the Defendant. Instead, he reached down the front of her shirt with his right hand and squeezed her left breast. She pulled away and said, “don’t do that.” She said she knew that he was mad at that point. She realised, based on his usual behaviour that he would want to touch her other breast, to even things out. She said “no.” The complainant testified that she has dreams and flashbacks about saying “no.” The “no” was so strong that it wakes her up some nights.
[24] The Defendant wanted a goodbye hug and “stupidly” she agreed. At this point, he “manipulated” her position so that she was somewhat turned away from him and he then reached down her top, again using his right hand, and touched her right breast. The complainant was embarrassed and shocked. This had happened in front of her young child and within sight of her assistant and her other child. She does not recall saying anything to the Defendant but she told her child goodbye and she left.
[25] During the complainant’s testimony, it became obvious that since the breakdown of their marriage in July 2019, there were several allegations of poor behaviour by both parties. The complainant had been charged in October 2019, some six months after this alleged sexual assault in April, for throwing a photo-box lid and hitting the Defendant in the face. That charge was ultimately withdrawn in favour of a peace bond, without any admission of culpability.
[26] In cross-examination, the complainant denied that she had aimed or intended to hit her husband in the face with the lid. She testified that she wanted to distract the Defendant so that she could leave the home. This event was apparently audio recorded by the Defendant using his phone.
[27] The audio recording of the argument, the apparent assault, and the interaction afterward became exhibit 1 on the trial. The complainant readily admitted that the recording had captured her words during the event, but she questioned the authenticity of the recording given the Defendant’s unique employment skills and his abilities to edit.
[28] The complainant spoke about how the Defendant could just look at her and it could trigger her trauma. He would stand over her and give a look. This could cause her to have fear and shame. These behaviours got worse in August she said. When she reported this to her local chief of police she was told not to be alone with the Defendant. However, she stayed in the family home at the urging of her family lawyer.
[29] When asked in cross-examination about what she had told the Defendant during the recorded altercation she admitted that she said, “I would “Me Too” his ass and he would never see his kids again.” She did not recall saying she would “bury his ass.”
[30] The recording revealed that the complainant had said the following things during the altercation in October:
“I want you the fuck out of my life, [name].”
“Then fuck you, we’re going to court. And you will never fucking see your kids again. I will fucking make sure. I will bury your ass. Bury, bury, bury you.”
“Ya call the cops, I’ll face the charges.”
“Yep, I threw a box lid at him, which I shouldn’t have done.”
“Again, call the cops and I’ll face the assault charge.”
“I am “Me Too”-ing your ass.”
“Okay, [name], I want you out of the house. This is what I want. I want you out of the house and I don’t want you to live here at all. I want the house. I want half the financials and I want the agreement with the kids that I submitted this week. That’s what I want.”
“I can tell them [the police] that I assaulted you and I can tell them that I was fucking terrified of you downstairs.”
[31] The complainant testified that she never admitted assaulting the Defendant with the lid. She admitted that she had thrown the lid and it had hit the Defendant. To her, that meant that she had assaulted him even though it was not her intention. Rather, her intent was “to create space” so that she could leave.
[32] When asked if the complainant had told the 911 operator that she threw the lid to create a distraction, the complainant said, “no, I know I was terrified then…Trauma does bizarre things to our bodies…that’s my trauma and how I handled it…I’m not proud of it, but I known what I did.” She re-iterated throughout her testimony that she was “terrified” during the recorded altercation, rather than angry.
[33] When confronted with a police report made within days of her being charged for the assault on the Defendant, the complainant admitted that she did not initially tell the police in her home city about the alleged sexual assault in April (six months prior) in the parking lot outside the restaurant in Mississauga. She explained that she spoke generally about “assaults.”
[34] When pressed on apparent inconsistencies between what the complainant was saying in court and what she had told the police, she resorted to explanations about her current understanding of trauma and why she did not report to police how tense things were at the restaurant in April.
[35] When asked why she remembered where the Defendant had parked, the complainant answered, “I recall, what I recall…unfortunately, that’s life.” When asked if she had selective memory, the complainant said that she has experienced significant trauma and has been “diagnosed with PTSD.”
[36] During the description of the incident, the complainant was “pretty sure” that her assistant, who she had apparently told the police was in her car, was out of her car when it happened.
[37] The cross-examination about the alleged assault was difficult for the complainant. At one point she testified, “please stop asking me, please, please.” At the end of her evidence, she testified that her “trauma” is the reason for her reactions in court.
The Testimony of the Assistant
[38] The complainant’s assistant, Mr. C., testified about his working relationship with the complainant, how that evolved into a romantic relationship in August 2019, how it came to be that the police became aware of the alleged sexual assault, and his observations of the sexual assault, among other things.
[39] Overall, I found this witness believable.
[40] Mr. C. testified that after the dinner at the restaurant in Mississauga he was at the complainant’s car with the Defendant as the complainant put her younger child in the Defendant’s car.
[41] He testified that he saw the complainant and Defendant pass each other to go to their respective cars when the Defendant expressed that he wanted a hug. Then he saw the Defendant pull the complainant toward him by her waist. Then Mr. C. said he “witnessed him try to put his hand down [her] shirt.” She said, “don’t” but he pulled her in and then put his hand back in and squeezed her breast.
[42] After the witness finished in cross-examination, the court asked whether the witness’ evidence could be clarified. The prosecutor re-examined the witness. Mr. C. described what he saw this way:
From the word “attempted” I mean, when he pulled her, the first time he reached for her breast, she was not comfortable with that so she shouted, “no.” Moved away from [name]. He pulled her back in. To the hug, for the embrace, and then at that point succeeded in grabbing her breast. Inside of her shirt.
When asked about the “attempt” and how close the Defendant was in grabbing the complainant’s breast, he testified:
So, ah, as close as he could possibly get. They were embraced in a loose hug. And so, [name] reached up to grab her breast and at that point, she pulled away. I paid much closer attention after she shouted, “don’t” than I was at the initial hug. So when I say “attempt” I can’t say for certain whether he grabbed her breast the first time, and then she pulled away, or just reached for it. I can’t say, I wasn’t examining the situation, so I can’t say that there was contact the first time. But certainly, after she shouted, “don’t,” and you know, my attention was elevated, that’s when I saw the successful quote unquote attempt.
[43] Mr. C. described the respective parking spots differently from the complainant. She accepted the map that was made exhibit 2, prepared by the Defendant, which had her vehicle close to the store-fronts, while the Defendant’s vehicle was in the last row of parking. The complainant took issue with the label of the Defendant’s vehicle in the fourth spot from the end of the last row. She believed his car was approximately 6 spaces down from the end in the last row. Interestingly, Mr. C. accepted where the Defendant’s map had his vehicle labelled, but he thought that the complainant’s vehicle was in the spot where the complainant had indicated the Defendant had parked.
The Testimony of the Defendant
[44] By far, the most credible witness was the Defendant. His presentation was smooth, calm, consistent, and good-natured. One might think that the Defendant was an actor playing a part. He certainly did not seem to have any negative emotions (not hurt, sadness, anger, or discomfort of any kind) either while testifying, or apparently during the events that were described. By his evidence, he was always the loving, supportive, spouse of the complainant.
[45] The Defendant did not recall anything untoward happening during the birthday celebration and subsequently in the parking lot outside a restaurant in Mississauga in April 2019. Specifically, he denied ever having sexually assaulted the complainant.
ANALYSIS AND FINDINGS
[46] This case raises issues of credibility and reliability. In saying that, I recognize that I cannot decide this case as if it were simply a contest of competing versions of events where I am permitted to prefer one version over the other. That is never permissible for a trier of fact because it ignores the presumption of innocence and the unending burden upon the prosecution to prove the offence charged beyond a reasonable doubt. In fact, even if I totally reject the Defendant’s evidence, I must acquit him unless I am not left with a reasonable doubt about his guilt based upon the evidence I do accept.
[47] In considering the overall credibility of each witness, I have considered the following areas:
-general character; -plausibility; and -presentation.
As well, I have considered the overall reliability of each witness, in terms of the following:
-ability to observe; -memory; -motive; and -presentation.
[48] Because credible witnesses can be mistaken or otherwise inaccurate, credibility is not a proxy for reliability. R. v. H.C., 2009 ONCA 56 at para. 41.
[49] For several reasons, I find that despite the compelling and mostly credible nature of the complainant’s evidence, she was not a reliable historian.
[50] First, the complainant has suffered traumas that she admits have plagued her memories, infected her understanding, and have been so “intense” that she has shut down and “lost days” of her life.
[51] Second, at times, while testifying, the complainant was flippant and impatient. While that may be expected with prolonged examinations of a witness, the circuitous route of her answers, rather than any repetitious questioning, added unnecessary prolixity to her testimony. Given the way she chose to answer what was asked of her, the complainant’s frustrations were mostly self-generated.
[52] Third, I find that the complainant had a motive to testify against the Defendant. I agree with the prosecutor that the complainant had a motive to want to report a sexual assault to the police, but the timing of her report, the manner in which the allegation was eventually discovered (with Mr. C’s prompting), the nature of the relationship between the complainant and the Defendant at the time, the hidden nature of the relationship between the complainant and her witness, the fact that she had been charged with assaulting the Defendant, and the on-going litigation between the parties, provided strong motives for the complainant. Though the allegation may have been genuine, at least as far as the complainant believed, these motives reduce the reliability of the complainant’s evidence.
[53] Fourth, the complainant is unaware of her own emotional presentation. She testified to her fear during the recorded argument in October, but it is evident on the recording that she was angry, vengeful, and upset. This also causes me to question the accuracy of the complainant’s recollections.
[54] In these circumstances, it would be imprudent to convict the Defendant based on the complainant’s evidence alone.
[55] I have considered the complainant’s evidence in concert with Mr. C’s. There are some issues worth noting. First, the evidence is inconsistent respecting where the sexual assault took place (at the Defendant’s car versus half-way, approximately, between the two cars). Second, the content of the evidence is different (two assaults versus one attempt and one assault). Third, both witnesses downplayed the nature of their “romantic relationship” (the complainant did so while testifying, Mr. C. did so with the police). Last, Mr. C. was not a truly independent, neutral, third-party witness.
[56] Though it is unsurprising that two witnesses may recount the same event differently, these concerns cause me to question the reliability of Mr. C’s evidence. This is significant because the complainant’s testimony, while mostly credible, is unreliable.
[57] Until now, I have said little about the overall credibility or reliability of the Defendant’s testimony. In terms of credibility, it suffered from a rehearsed quality. There was an implausibility to his affect (the way he presented his evidence) and his claims. This, however, was the least of its shortcomings.
[58] The Defendant’s overall presentation (including the content), his apparent unwavering support and concern for the complainant despite her erratic behaviour and two assaults upon him, and several possible motives (to secure an acquittal, advance his lawsuit against the complainant, or gain an advantage in family law proceedings) cause me to doubt even the autobiographical information in his testimony.
CONCLUSION
[59] In the end, even after rejecting the blanket denials of the Defendant, I am not satisfied that it is proven beyond a reasonable doubt that he sexually assaulted the complainant.
[60] Given the high burden of proof, the lack of any truly objective evidence, and my inability to ascertain whether the alleged sexual assault actually took place, the Defendant is acquitted of the charge.
Released: 07 April 2022 Justice G. Paul Renwick