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IDENTITY OF OFFENDER NOT TO BE PUBLISHED -- (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify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IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED -- (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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OFFENCES -- Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.

[Criminal Code] 486.6 OFFENCE - (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

DATE: 2023 07 10 Newmarket, Ontario

BETWEEN:

HIS MAJESTY THE KING

— AND —

C.C. and V.F.

Before Justice R.M. Robinson

Heard on 4, 5, 6 and 7 July 2023 Reasons for Judgment released on 10 July 2023

Counsel: Aisha Khan........................................................................................... counsel for the Crown Cosmo Galluzzo..................................................................... counsel for the accused C.C. Michael W. Lacy...................................................................... counsel for the accused V.F.

ROBINSON J.:

OVERVIEW

[1] Both accused young persons appear before me charged with a number of extremely serious offences, namely:

Count 1: sexual assault on S.F. [C.C. and V.F.]
Count 2: sexual assault on L.P. [C.C. only]
Count 3: gang sexual assault on S.F. [C.C. and V.F.]
Count 4: gang sexual assault on L.P. [C.C. only]

[2] At the close of the Crown’s case, both young persons brought a directed verdict application contending that there was an absence of identification evidence.

THE LAW

[3] The test for a non-suit application is the same as the test for committal after a preliminary inquiry. The test is not controversial and its principles are summarized as follows:

(a) If there is sufficient evidence upon which a reasonable and properly instructed jury could find guilt, the preliminary inquiry judge must commit to trial. [1] R. v. Sazant, 2004 SCC 77

(b) It is a jurisdictional error for a preliminary inquiry judge to commit an accused to trial where there is no evidence on an essential element of the charge. [2] R. v. Sazant, 2004 SCC 77

(d) The preliminary inquiry judge is obliged to determine whether there is some evidence reasonably supporting the existence of each of the elements of the offence charged – even if only a scintilla of evidence. [4] R. v. Martin

(e) Where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered. [5] R. v. Sazant, 2004 SCC 77

(f) The prohibition against weighing evidence in assessing the committal question is narrowly modified where the Crown adduces circumstantial evidence said to point toward guilt. The preliminary inquiry judge, in determining whether the elements of the offence may be reasonably inferred from circumstantial evidence, is permitted to engage in a limited weighing of such evidence to the extent of assessing the reasonableness of the inferences to be drawn from the circumstantial evidence. [6] R. v. Arcuri, 2001 SCC 54

(g) Circumstantial inferences are ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. [7] R. v. Morrissey

(h) A trier of fact cannot be invited to draw speculative or unreasonable inferences. [8] R. v. Figueroa, 2008 ONCA 106

(i) The process of drawing inferences from evidence is not the same as speculating even where the circumstances permit an educated guess. [9] United States of America v. Huynh, 2005 ONCA 305

(j) A reasonable and logical inference to be drawn from circumstantial evidence need not be an easy one to draw. [10] R. v. Katwaru

(k) The justice is obliged to consider the cumulative effect of the evidence said to point toward guilt on the part of the accused. It is improper to isolate a particular piece of evidence and to then discuss any probative force flowing therefrom without regard to the context of the totality of the evidence. [11] R. v. Coke, [1996] O.J. No. 808 (Ont.Ct.G.D.)

THE EVIDENCE

L.P.’s Evidence

[4] L.P. was sixteen years old at the time that the alleged offences occurred. She is now eighteen.

[5] She testified that she began seeing a male, F.S., in May of 2021. During that period of time, she met up with him at a house at [address redacted] in Woodbridge on several occasions. L.P. testified that she encountered a number of males at the residence when she attended.

[6] She testified that one such male was V.F., who she had seen at the house three or four times in May of 2021. She testified that she met V.F. through F.S.

[7] The night of 28 May 2021, L.P. brought her friend S.F. to the residence at [address redacted]. L.P. testified that there were a number of males at the residence, including F.S., V.F. and C.C. She knew C.C. as they attended the same school and were in the same grade. According to L.P., they had gone to school together for three years. There was one other male present named V., namely V.L.

[8] L.P. testified that the following events occurred during the course of the evening:

(a) When she entered a bedroom with F.S., she saw her friend S.F. in there with V.F., C.C. and A.M.;

(b) C.C. began to have sex with L.P. from behind;

(d) V.F. forced L.P. to give him oral sex while F.S. had sex with L.P. from behind.

[9] According to L.P., she continued to see C.C. at school when it resumed in September of 2021.

S.F.’s Evidence

[10] S.F. was sixteen years old at the time of the alleged offences. She is now eighteen years old.

[11] She testified that when she accompanied her friend L.P. to the residence at [address redacted] on 28 May 2021, all of the males she encountered were strangers to her.

[12] She testified that she subsequently learned the names of the males through L.P. Two of the males present, whose identities she learned through L.P., were C.C. and V.F.

[13] S.F. testified that, although C.C. was in her grade at school, she had never seen him or heard of him prior to 28 May 2021. However, S.F. recalled seeing C.C. at school once it resumed in September of 2021.

[14] S.F. testified that the following events occurred during the course of the evening:

(a) She entered a bedroom with C.C., V.F. and A.M. The males closed the door and removed her clothing;

(b) C.C., V.F. and A.M. forced her to have oral and vaginal sex;

(d) F.S. immediately turned his attention to S.F. and forced her to have vaginal and oral sex;

(e) A number of other males entered the room and took turns having sex with S.F.; and

(f) A number of males, not including C.C. or V.F., committed further sexual assaults against S.F. outside of the bedroom and in the basement.

Other Identification Evidence

[15] The Information before the Court names C.C., date of birth [redacted], and V.F., date of birth [redacted]. At the time of the incident on 28 May 2021, they were sixteen and seventeen years old respectively.

[16] Of note, both L.P. and S.F. testified that the person they identified as C.C. was their age (sixteen) and was in their grade in high school.

Absence of Evidence

[17] The defence declared at the outset that identity was in issue. Neither L.P. nor S.F. provided in-dock identification evidence of C.C. or V.F. at trial. None of the males present (except “blue sweater guy”) were physically described by either complainant.

[18] There was a gap in time from the incident to the police report and then the arrest. Even on a narrative basis, it remains unclear how the two accused young persons came to be charged and prosecuted. There was no forensic evidence (e.g. fingerprints or DNA) placing either accused young person at the scene.

[19] There was no evidentiary chain of identification led to connect the alleged assailants with the accused young persons. Any semblance of identification is either inadmissible hearsay or simply gossip. All that was offered were names. I will address this below.

ANALYSIS

[20] The identification evidence in this case is entirely circumstantial. Accordingly, I must engage in a limited weighing of said evidence, considered cumulatively, in order to assess if there are available and reasonable inferences of the identity of the two accused.

[21] Both L.P. and S.F. testified that one of the assailants was C.C., a sixteen year old male who attended their school.

[22] In that regard, the Information before the court provides some evidence that one of the males before me is a C.C. who would have been sixteen years old on 28 May 2021.

[23] In R. v. O’Kane, 2012 MBCA 82, the Manitoba Court of Appeal considered the evidentiary value of the information included in the court Information:

47 In my view, the fundamental question here is whether the similarity of names between the accused and the officers referred to in the evidence was sufficient to fulfill the identification component of the test to be applied on the directed-verdict motions.

48 The case law is clear that similarity of names may serve as circumstantial evidence of identity, particularly at the directed-verdict stage. Similarity of names "is an item of proof of identity" ( Nicholson at para. 33). See also McWilliams' (at para. 29:40.20.90):

Name

It has been held that some evidence of identity is provided simply by a similarity of name and address. ....

The point to remember is that some evidence is all that is needed to commit for trial or to resist a motion for non-suit.

49 The seminal case in Canada regarding similarity of name as identification evidence is R. v. Chandra (1975), 29 C.C.C. (2d) 570 (B.C.C.A.). Chandra was a directed verdict case where the jury was directed to acquit based on a lack of identification evidence. The accused was alleged to have run over an elderly woman with his car as she was crossing the street. The Court of Appeal concluded that there was some admissible evidence of identification and, therefore, allowed the appeal and directed a new trial. McIntyre J.A. (as he then was), for the court, made the following remarks regarding similarity of name as identification evidence (at p. 573):

In my opinion mere identity of name affords some evidence of identity of a person. When accompanied by other factors such as the relative distinctiveness of the name, or the fact that it is coupled with an address, or appears upon a licence or other document of significance, its weight is strengthened. The trier of fact when such evidence is before it, whether Judge alone or jury, must consider it, weigh it and reach its determination. When such evidence is adduced to the trier of fact it cannot be said there is no evidence. ....

50 In R. v. D.R.H., 2007 MBCA 136, 220 Man. R. (2d) 271, which was a conviction appeal relating to a sexual assault, Scott C.J.M., writing for the majority, cited Chandra and concluded that "the fact the accused and the perpetrator share the same name may be used as circumstantial evidence of identity" (at para. 46). See also R. v. Zarubin (G.A.), 2004 SKCA 14, 241 Sask.R. 292, R. v. J.V.-R. (1999), 120 O.A.C. 298, and R. v. D.B., 2007 ONCA 368 (QL).

[24] A similar conclusion was reached by the Ontario Court of Appeal in R. v. St. Pierre, 2016 ONCA 173.

[25] Given the totality of the evidence, it appears to me that there is some evidence – i.e. an available inference – that the sixteen year old C.C. described by L.P. and S.F. in their testimony is the same C.C. before me who was sixteen years old on 28 May 2021.

[26] However, this is not determinative of the directed verdict issue.

[27] L.P. testified that one of the three males in the bedroom with S.F. was V.F., a male she had met on three or four prior occasions.

[28] S.F. testified that one of the three males in the bedroom who sexually assaulted her was a male she was subsequently told by L.P. was V.F. While S.F.’s evidence in this regard is hearsay, the fact that L.P. identified V.F. as one of the three males in the bedroom with S.F. provides some admissible evidence of his identity.

[29] For the reasons discussed above, the Information before the court provides me with some evidence that one of the males before me is V.F., who would have been seventeen years old on 28 May 2021, the approximate age of L.P., S.F. and C.C.

[30] Given the totality of the evidence, it appears that there is some evidence – i.e. an available inference – that the V.F. described by L.P. and S.F. in their testimony is the same V.F. appearing before me.

[31] Again, in my view, this is not determinative of the directed verdict issue.

PROPER APPLICATION OF THE SHEPHARD TEST

[32] The proper test for me to consider was set out by Ritchie J in the United States of America v. Shephard:

I agree that the duty imposed upon a “justice” under s.475(1) is the same as that which governs a trial judge sitting with a jury in deciding whether the evidence is “sufficient” to justify him in withdrawing the case from the jury and this is to be determined according to whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The “justice”, in accordance with this principle, is, in my opinion, required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.

[33] In her dissenting reasons in R. v. Charemski, McLachlin J elaborated on the correct approach to the above underlined passage in Shephard:

A properly instructed jury acting reasonably is a jury that will convict only if it finds that the evidence establishes guilty beyond a reasonable doubt. To determine whether this could occur, the judge on the motion for a directed verdict must ask whether some or all of the admissible evidence is legally sufficient to permit the jury to find guilt beyond a reasonable doubt. In so doing, the trial judge is determining the sufficiency of the evidence. The question is whether the evidence is capable of supporting a verdict of guilt beyond a reasonable doubt. If it is not, the judge must direct an acquittal, since it would be impossible for a reasonable jury to convict legally on the evidence. The case against the accused has not been made out and there is no charge to answer. To permit the trial to continue would be to impinge on the accused’s right to silence and right to be presumed innocent until proved guilty, and to risk a verdict that would necessarily be unreasonable.

[34] Although McLachlin J’s words formed part of her dissenting judgment in Charemski, her sound reasoning was followed by the Ontario Court of Appeal in R. v. Turner, 2012 ONCA 570, at para 16.

[35] This approach has been adopted by various judges of the Ontario Superior Court of Justice repeatedly, including most recently by Spies J in R. v. Douglas, 2023 ONSC 1611, at para 2; Dennison J in R. v. Metcalf, 2022 ONSC 5247, at para 14; and Stribopoulos J in R. v. Rego, 2021 ONSC 4268, at para 8, and in R. v. Gunn, 2020 ONSC 2857, at para 116.

DISPOSITION

[36] In the present case, I have concluded that the names “C.C.” and “V.F.” identified by L.P. and S.F. and the names “C.C.” and “V.F.” on the Information before me provide some evidence of the identity of the perpetrators. The inference that the persons before the court are the persons about whom the complainants testified is available although far from compelling.

[37] However, in assessing the merits of the directed verdict application, I must consider the sufficiency of the identification evidence with reference to the ultimate burden on the Crown to prove the case beyond a reasonable doubt.

[38] In the absence of any other evidence of identity, the names on the Information alone could not permit me to be satisfied beyond a reasonable doubt that the two accused young persons before me were the individuals who allegedly sexually assaulted L.P. and S.F.

[39] Accordingly, the motion for a directed verdict is granted and I find C.C. and V.F. not guilty on all counts.

[40] I note parenthetically that, in light of the entirety of the evidence led by the Crown, I could not find either young person guilty beyond a reasonable doubt. It would be unsafe to convict C.C. and V.F. for many reasons, including, but not limited to, the following factors:

(a) L.P. and S.F. both had a motive to fabricate, as they felt compelled to provide their parents with a compelling reason for missing their curfew;

(b) L.P. and S.F. had another motive to fabricate, namely to counter the rumours that were circulating at their school;

(c) There was a realistic danger that collusion between L.P. and S.F. during the five months between the incident and when they provided the police with statements affected the reliability of their evidence;

(d) In L.P.’s text messages to A.M. in the hours following the alleged incident, she not only confirmed her consent to the sexual activities but she also suggested that her parents were propelling the sexual assault narrative;

(e) In L.P.’s phone call to A.M. in October 2021, her words suggested consent to the activities and dispelled any suggestion that she was fearful of him;

(f) S.F. testified that when she was asked to engage in sexual activities she did so without any overt or implied threats;

(g) Although S.F. testified that she was visibly nervous, she indicated that it was likely that she was smiling or giggling throughout because that is her particular reaction to stressful situations;

(h) S.F. testified that whenever she indicated that she did not want to partake in certain sexual activities, the males stopped; and

(i) S.F. was unsure who did what and prefaced virtually the entirety of her evidence with “I think…”

Released: 10 July 2023 Signed: Justice R.M. Robinson

R. v. C.C., 2023 ONCJ 301

Case Summary