WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
IDENTITY OF OFFENDER NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
- OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
CITATION: R. v. L.T., 2023 ONCJ 166
DATE: 2023 04 05
COURT FILE No.: SSM 21 Y1330047 - 00
BETWEEN:
HIS MAJESTY THE KING
— AND —
LT, a young person
Before Justice David A. Harris
Heard on January 19 and 20, 2023
Reasons for Judgment released on April 5, 2023
Matthew Caputo.................................................................................. counsel for the Crown
Eric D. McCooeye..................................................................... counsel for the accused LT
D.A. HARRIS J.:
INTRODUCTION
[1] LT, a young person, has been charged with sexually assaulting KR at the City of Sault Ste. Marie on May 6, 2021.
[2] Crown counsel elected to proceed summarily. LT pled not guilty and the trial began.
[3] The Crown called KR, AW, ZH, Nurse Practitioner TS, and Detective Constable Corcoran as witnesses. KR’s videotaped statement to police was introduced into evidence pursuant to section 715.1 of the Criminal Code.
[4] In addition, eight photographs taken by the Nurse Practitioner, and reports from the Centre of Forensic Sciences were admitted into evidence. These reports concluded that vaginal swabs taken from KR generated a hit for semen belonging to LT.
[5] LT testified in his own defence.
[6] KR testified that LT engaged in non-consensual vaginal intercourse with her. More particularly she said that he had vaginal intercourse with her and that (1) she did not consent to this, and (2) she was incapable of consenting at that time in any event.
[7] He denied having vaginal intercourse with her on the occasion specified by her. He admitted to sexual intercourse with her approximately 24 hours earlier but testified that this occurred with her consent.
[8] Accordingly, the principles in R. v. W (D)[^1] are applicable.
[9] If I believe LT’s evidence, I must find him not guilty.
[10] Even if his evidence leaves me with a reasonable doubt regarding any essential element of the alleged offence, I must find him not guilty.
[11] Finally, even if his evidence does not leave me with a reasonable doubt about his guilt, if after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of his guilt, I must acquit.
[12] In determining this, I must keep in mind that LT, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities".[^2]
[13] This is a tough standard, and it is so tough for very good reason. As Cory J. said in R. v Lifchus:
The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt ... is one of the principal safeguards which seeks to ensure that no innocent person is convicted.[^3]
[14] The case against LT depends on my assessment of his evidence and that of KR, AW and ZH.
[15] In that regard I note the differences between credibility and reliability. Credibility relates to a witness's sincerity, whether they are speaking the truth as they believe it to be. Reliability relates to the actual accuracy of their testimony. In determining this, I must consider their ability to accurately observe, recall and recount the events in issue. A credible witness may give unreliable evidence[^4]. Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt.[^5]
[16] Finlayson J.A. stated in R. v. Stewart that:
I am not satisfied, however, that a positive finding of credibility on the part of the complainant is sufficient to support a conviction in a case of this nature where there is significant evidence which contradicts the complainant's allegations. We all know from our personal experiences as trial lawyers and judges that honest witnesses, whether they are adults or children, may convince themselves that inaccurate versions of a given event are correct and they can be very persuasive. The issue, however, is not the sincerity of the witness but the reliability of the witness's testimony. Demeanour alone should not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on the record.[^6]
[17] At this point I will say that while my decision with respect to the credibility of the witnesses is based, in part, on their demeanour while testifying, I am well aware that a finding of credibility should never be based on demeanour alone, especially where there are significant inconsistencies and conflicting evidence on the record.[^7] The credibility and reliability of a witness must be "tested in the light of all the other evidence presented"[^8].
[18] I also stress that while I am satisfied that I may rely on the demeanour of the witnesses as a factor in assessing their credibility, I consider it to be of very little, if any, assistance in assessing the reliability of their evidence.
[19] I cannot say that I fully believed LT.
[20] On the other hand, I cannot say that I fully disbelieved him.
[21] His evidence, combined with all of the other evidence leaves me with a reasonable doubt as to what happened here.
[22] My reasons for this are set out in the following paragraphs.
[23] I will first address the problems I see with respect to the reliability of the evidence of the four key witnesses.
[24] All four of them were smoking marihuana to various degrees, both on the day leading up to the alleged sexual assault, but also on the days preceding that.
[25] KR said she was so stoned that she was out of it to the extent that she did not know when LT began to have sexual intercourse with her. She was certainly incapable of consenting to that act.
[26] AW also claimed to be affected by the marihuana to the point that he was out of it for a number of hours after he had left the others.
[27] So my assessment of the reliability of all four witnesses requires consideration of the fact that they were all under the influence of marihuana to varying degrees over varying periods of time. This of course could affect their ability to both observe and recall what was going on accurately.
[28] I note also that AW did not speak to the police about the events of that day until more than a year later.
[29] ZH did not remember when she gave a statement to the police. No one else gave any evidence about this.
[30] I note that there was nothing particularly significant happening while AW and ZH were present on the day in question and there would be no reason for them to fix these events in their memories.
[31] This is also a factor in my assessment of the ability of AW and ZH to accurately recall those events.
[32] Crown counsel pointed out inconsistencies in LT’s evidence and counsel for LT pointed out inconsistencies in KR’s evidence. To these I add inconsistencies in the evidence of both AW and ZH.
[33] In assessing the credibility of a witness, it is appropriate to examine any inconsistencies in what a witness said at different times. Inconsistencies on minor matters or matters of detail are normal and do not generally affect the credibility of a witness. But one or more inconsistencies involving material matters can justify concluding that the witness is neither credible nor reliable. In determining this, it is necessary to look to the totality of the inconsistencies.[^9]
[34] The following are examples of inconsistencies in the evidence of the four witnesses. These are presented in no particular order of importance. I have considered them collectively in any event. I also point out that I am relying on these in determining both the credibility and the reliability of all four.
[35] Everybody agreed that at least the four of them got together and that some of them were smoking marihuana.
[36] In both her statement to the police and her evidence in court, KR stated that she, LT, AW and ZH were there. Other people were present in the house at different times but they were not involved with the four central characters.
[37] LT agreed that those four were present but said that AO (AW’s girl-friend was also there.
[38] AW and ZH both agreed that AO was also there, but they also added others not mentioned by either KR or LT.
[39] In her statement to the police, KR was asked to “tell me about your experience that day smoking”.
[40] She replied that the group of them had gone out into the bush behind her home and smoked marihuana using a bong. Both the bong and the marihuana were provided by ZH. KR made no mention of smoking marihuana in her bedroom and she made no mention of smoking her own marihuana or using her own bong. She said that LT and AW did not smoke any marihuana.
[41] At trial during evidence in chief she said that the smoking took place in her bedroom. She mentioned smoking her own marihuana in her own bong. LT smoked some of her marihuana but none of ZH’s. AW had one hit of her marihuana and stopped.
[42] When pressed during cross-examination she said that they also went to the bush at some time. This was the first time that she testified in court that they had gone to the bush.
[43] LT, AW and ZH all testified that they never went to the bush that day.
[44] LT said that they started out smoking marihuana on the back porch and eventually went up to the bedroom where such smoking continued.
[45] AW and ZH testified that the group only smoked marihuana in the bedroom.
[46] LT testified that he was smoking marihuana. It was his own. He did not smoke ZH’s marihuana. ZH did bring marihuana and a yellow bong. Nobody else referred to a yellow bong.
[47] ZH testified that she smoked her own marihuana only. She did not bring a bong that day.
[48] AW testified that he smoked enough of ZH’s marihuana that he did not feel well. He did not know whose bong they used. It was not KR’s.
[49] KR testified that at some point, LT was tired and wanted them to be alone and so KR told ZH to go home. LT disagreed with this. ZH testified that nobody asked her to leave.
[50] KR stated in her interview that a few minutes after she smoked ZH’s marihuana, she was “out of it”. She had never had a reaction to marihuana like that. Her eyes were rolling back into her head. She started “like falling over and stuff.”
[51] She also stated that ZH showed her a video that night of herself doing this and ZH was laughing.
[52] During cross-examination at trial, she conceded that she did not remember if the videorecording actually happened or not.
[53] ZH testified that she did not observe any unusual behaviour on KR’s part that night. KR did not complain about the marihuana “until afterwards” meaning days later. Neither counsel asked her about a videorecording, and I was not shown one. I conclude, in light of her other testimony, that ZH would have answered that she did not make such a videorecording let alone show it to KR.
[54] Neither LT nor AW made any reference to ZH videorecording KR.
[55] LT testified that KR appeared a little more paranoid after smoking ZH’s marihuana. Other than that, her behaviour was not odd at all. Her eyes were not rolling back in her head.
[56] AW did not testify to any observations of the effect of the marihuana on KR.
[57] He did testify that the effects of smoking ZH’s marihuana did not feel right to him. It hit him hard. He did not remember much afterwards. It was blurry. He went across the street to AO’s house and went to bed early and slept until late the following morning. When he woke up, he “felt like shit”.
[58] KR, AW and ZH all testified that these events occurred on May 6. LT testified that they occurred on May 8. I note that the evidence of both AW and ZH on this point was in answer to a leading question. I was satisfied however that KR had the dates right and LT was mistaken.
[59] These inconsistencies, considered collectively, bring into question the credibility and reliability of each and every one of the four witnesses.
[60] KR also gave evidence that was inconsistent with that of the Nurse Practitioner.
[61] KR was shown the photographs that were taken as part of the “Rape Kit”.[^10] She was asked about red marks on her neck. She testified that one was an older hickey that was consensual. The other marks were newer and were nonconsensual.
[62] On cross-examination she was questioned about a conversation she had with the Nurse Practitioner who took the photographs. In answer to the suggestion that she had characterized more of the marks as being consensual. KR replied that if the Nurse Practitioner said that she had identified more than two marks as being the result of consensual activity, then the Nurse Practitioner would be wrong.
[63] The Nurse Practitioner testified that KR told her that four out of five marks were consensual. She identified a drawing which she had included in the “Rape Kit” showing four consensual marks and one non-consensual one.
[64] In the circumstances, I am satisfied that I can rely on the well documented evidence of the Nurse Practitioner in this case.
[65] I note here that I am not certain what KR meant when she said certain of these marks were non-consensual. She did not identify them as the result of LT strangling her. She also did not identify them as hickeys, although I note that they seemed to me to be similar to the one mark that she described as a hickey. She made no mention of LT giving her hickeys that night. She also made no mention of this during her police interview which occurred shortly after she was finished with the Nurse Practitioner.
[66] LT testified that all of the marks shown in the photographs were hickeys. He had caused them. They were consensual. They were also mutual. He had numerous hickeys on his body that were caused by KR.
[67] He never tried to strangle her. She had choked him a few times before. That had excited him sexually.
[68] They had also kissed and she had pressed her body against his in a way that turned him on.
[69] He insisted however that they had not discussed having sex until the night that it happened.
[70] KR testified that LT had sexual intercourse with her the night after the four of them had been together smoking.
[71] LT testified that they did not have sexual intercourse that night. They did however have consensual sex the night before that. KR initiated that but he had been a full participant.
[72] KR testified that they did not have sexual intercourse that earlier night.
[73] I note that either of these two versions of events would be consistent with the forensic evidence that was introduced.
[74] KR made two comments in her statement to the police that I found perplexing.
[75] The first comment is that she did not have to pay ZH for her marihuana and “That should have been a red flag.” Why should that have been a red flag? I heard nothing in the evidence that made any sense of this statement.
[76] Similarly she said that the fact that AW and LT did not smoke any marihuana at that time “should have been a red flag to me”. Again this statement made no sense to me. She explained to the police why AW did not smoke that day.
[77] I see no connection between ZH providing her with marihuana free of charge and what happened later on. I also see no connection between LT not smoking marihuana at one particular time and what happened later.
[78] In contrast to this, in her statement to police and in her evidence in court, KR made comments about LT, that to my mind, could have been seen as “red flags”. KR however did not classify these in that way.
[79] Crown counsel asked me to take into account the fact that KR was a virgin and therefor unlikely to have consented to sexual intercourse.
[80] He also asked me to disbelieve LT because it was unlikely that a teenaged male would not have even thought that they would have sex when she was kissing him, choking him, giving him hickeys, pressing herself against him and turning him on.
[81] I have problems with both of these arguments.
[82] Firstly, if a virgin is less likely to consent to sex then the natural corollary is that a non-virgin is more likely to consent. That is impermissible reasoning. So is the corollary.
[83] Further LT also claimed to have been a virgin prior to these events. He also insisted that he had expectations that his first time engaging in sexual intercourse would involve protected sex.
[84] He was not contradicted or shaken on cross-examination with respect to this.
[85] In fact, KR provided some possible corroboration for what he said.
[86] She testified that LT blamed her for the fact that he ejaculated inside her.
[87] This makes no sense in her version of events but fits perfectly with his evidence that he wanted his first act of sexual intercourse to be protected sex and that she had seduced him into having unprotected sex with her.
[88] With respect to Crown counsel’s argument that LT must have at least considered the possibility that sexual intercourse would happen in light of all that was going on between him and KR, I make the following observations.
[89] I accept that all of those things that were occurring and turning LT on could well have led many young men to think that sex was imminent, but I cannot say with certainty that all young men would think this.
[90] I note that this particular young man had been sharing a bed with KR for one to two weeks and, according to both of them, no sex had occurred yet. Their relationship was not sexual. This fact is more supportive of his claim than otherwise.
[91] I am also mindful of warnings from the Ontario Court of Appeal that I must be very cautious about drawing inferences based on "common-sense" assumptions that are not grounded in the evidence or appropriately supported by judicial notice.[^11]
[92] Further, I should not “rely on stereotypes or erroneous common-sense assumptions about how a sexual offence complainant is expected to act, to either bolster or compromise their credibility”.[^12] It is equally wrong to draw inferences from stereotypes about the way accused persons are expected to act.^13
CONCLUSION
[93] After considering all of the above, I am not satisfied beyond a reasonable doubt as to what happened in this case.
[94] LT is entitled to the benefit of my doubt. Accordingly, I find him not guilty.
Released: April 5, 2023
Signed: Justice D.A. Harris
[^1]: R. v. W. (D), 1991 93 (SCC), [1991] S.C.J. No. 26 (S.C.C.).
[^2]: R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 (S.C.C.) at para. 242.
[^3]: R. v Lifchus, 1997 319 (SCC), [1997] S.C.J. No. 77 (S.C.C.) at para. 13
[^4]: R. v. Morrissey, 1995 3498 (ON CA), [1995] O.J. No. 639 (Ont. C.A.) per Doherty J.A. at para 33; R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214 (Ont. C.A.) per Watt J.A. at para. 41; R. v. Slatter, 2019 ONCA 807, [2019] O.J. No. 5073 Ont. C.A. per Trotter J.A. at para. 60; Paciocco and Stuesser, The Law of Evidence, 6th ed. (Toronto: Irwin Law, 2011), pp. 32 to 33.
[^5]: R. v. J.J.R.D., 2006 40088 (ON CA), [2006] O.J. No. 4749 (Ont. C.A.) per Doherty J.A. at para 47; R. v. J.W., [2014] O.J. No. 1979 (Ont. C.A.) per Benotto J.A. at para. 26.
[^6]: R. v. Stewart, 1994 7208 (ON CA), [1994] O.J. No. 811 (Ont. C.A.) per Finlayson J.A. at para. 19.
[^7]: R. v. Norman, 1993 3387 (ON CA), [1993] O.J. No. 2802 (Ont. C.A.) per Finlayson J.A.; R. v. Stewart, supra at para. 19; R. v. G.G., 1997 1976 (ON CA), [1997] O.J. No. 1501 (Ont. C.A.) per Finlayson J.A. at paras. 14 to 19; R. v. Gostick, 1999 3125 (ON CA), [1999] O.J. No. 2357 (Ont.C.A.) per Finlayson J.A. at paras. 15 to 17. Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (Ont. C.A.) per Doherty J.A. at para 66.
[^8]: R. v. Stewart, supra at para. 27; R. v. M.G., 1994 8733 (ON CA), [1994] O.J. No. 2086 (Ont. C.A.) per Galligan J.A. at para. 23; R. v. Gostick, supra at para. 14.
[^9]: R. v. R.W.B., [1993] B.C.J. No. 758 B.C.C.A.) per Rowles J.A. at para 29; R. v. M.G., supra at para. 24; R. v. Stewart, supra at para. 27; R. v. A.M., 2014 ONCA 769, [2014] O.J. No. 5241 (Ont. C.A.) at paras. 12 to 13.
[^10]: A comment about the photographs. The hard copies which were originally introduced are of very poor quality and of little assistance to me. Some of these show what appears to be one large red mark that covers most of KR’s neck and throat. The digital photographs which were introduced much later are of much better quality and show distinctive marks.
[^11]: R. v. J.C., 2021 ONCA 131, [2021] O.J. No. 1048 (Ont. C.A.) per Paciocco J.A. at para. 58 and following.
[^12]: Ibid, at para. 63