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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under 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: 2024 05 01 COURT FILE No.: Brampton 3111 998 20 1653

BETWEEN:

HIS MAJESTY THE KING

— AND —

N.R.

Before: Justice G.P. Renwick Heard on: 29 and 30 April 2024 Reasons for Judgment Released on: 01 May 2024

Counsel: N. Naresh, counsel for the prosecution The Defendant, representing Himself

Reasons for Judgment Following a Trial

RENWICK J.:

Introduction

[1] The Defendant was charged with five counts arising from allegations of intimate partner violence involving the complainant. The allegations include a death threat, sexual assault, and three counts of breaching a bail Order by having contact with the complainant.

[2] The Defendant and complainant had a brief dating relationship and eventually lived together for several months ending in January 2020.

[3] The prosecution called the complainant to testify on the trial proper. On consent, at the conclusion of a voir dire to determine the issue of voluntariness, the Defendant’s video-taped statement to police on the night of his arrest was also introduced. The Defendant’s original bail order, some iMessages received by the complainant, and her criminal record were the only other pieces of evidence received during the trial.

[4] At issue is whether the prosecution has proven the allegations beyond a reasonable doubt. Determination of the matter entails a consideration of witness credibility and reliability, the probative value of the evidence, and whether the prosecution’s high burden has been met.

Governing Legal Principles

[5] The Supreme Court of Canada has recently reiterated the legal principles that govern the fact-finding process engaged during a trial. [1]

[6] 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 charges have been proven beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial. In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any element of an alleged offence beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that the Defendant committed any of the charges, he will be acquitted.

[7] 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 a 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. [2] If after considering all of the admissible evidence, I am sure that the Defendant committed an alleged offence and I am not left with any reasonable doubt, I must convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, or some reasonable doubt remains, then the charge has not been proven to the required degree and an acquittal must follow.

[8] Given the Defendant’s evidence in this case (his statement to police), 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. 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.

[9] Justice Paciocco breaks down 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 him;

(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.

[10] This case involves credibility and reliability assessments. In assessing credibility and reliability I have considered the general capacity of the complainant to make her observations, to remember what she perceived, and her ability to accurately testify and communicate her recollections. It is also important to determine whether the witness was trying to tell the truth and whether the witness was sincere, candid, biased, reticent, or evasive. A court may accept some, none, or all of what a witness says while testifying.

[11] A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said throughout her testimony. 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 significant or inconsequential to the case. If an inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.

[12] Admissibility and the weight attached to evidence are two distinct considerations. In addition to the testimony received, there are iMessages and the Defendant’s statement to consider. The probative value of evidence is not presumed. In all cases, a trier of fact must determine the appropriate weight to give each piece of evidence and what, if anything, is established or proven by the evidence.

The Evidence and Findings of Fact

[13] In this 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 the witness said, I listened to the witness carefully, I have taken detailed notes, and I have assessed all testimony for intrinsic and extrinsic consistency, plausibility, balance, motive, and the witness’ ability to recall and communicate.

[14] I will not recapitulate all of the evidence received during this trial. Suffice it to note that I have used several opportunities during the trial and subsequent to the completion of the submissions to review my notes and to listen to parts of the digital audio 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 evidence received until all of the closing submissions were made and my review of the evidence, submissions, and the law was complete.

The Testimony of the Complainant

[15] The complainant testified about having dated the Defendant for less than a year. She could not recall how long they dated, how long they lived together, or when they were in a relationship. She did recall speaking to police in the winter, approximately five years ago. Eventually, she recalled that they were together from May until January 2020.

[16] The complainant was apparently emotionless while testifying. She was seen to be smiling or communicating at one point with someone sitting in the audience of the court. The complainant was not a strong witness. She had many difficulties with her ability to recall the events in question.

[17] An example of the complainant’s poor recall was evident when she spoke about the Defendant having sexually assaulted her. She testified that he ejaculated, but she could not say where. Further, when asked if she were in jail during the time period of the alleged sexual assault, the complainant admitted that she had been arrested for breaching a no-contact term of her bail by contacting the Defendant, however, she could not recall if she were in jail during the dates in question.

[18] In the end, the complainant’s evidence was inconsistent and her memory was poor. Her demeanor while testifying did not add to nor detract from my assessment of her credibility.

[19] There was no real explanation for why the complainant did not have access to the video of the Defendant shooting a gun, nor the message that he would use a firearm to harm her. This absence of evidence also detracted from her reliability.

[20] As well, I am troubled by the fact that the complainant has been convicted five times from 2019 through 2021 for failing to follow court Orders or bail undertakings. This demonstrates a healthy disrespect for the legal process and it completely undermines my ability to accept her unsubstantiated word as proof of the allegations.

[21] Overall, the complainant was not credible or reliable and I have significant reservations about the truthfulness of her testimony.

The Remaining Evidence

[22] On the basis of the certified copy of the Defendant’s prior bail order (exhibit #1), I am satisfied that the Defendant was required to abstain from communicating with the complainant or attending any place she was known to be from 11 November 2019 until well after he was charged for these alleged offences.

[23] The Defendant gave a voluntary statement to police. In the statement he admitted that he maintained contact and even continued to live with the complainant throughout part of the relevant time period, before he left for Trinidad on 17 January 2020.

[24] The Defendant also admitted that there was a video of him in Trinidad that involved the firing of a handgun. However, he also told police that he never sent this to the complainant but it was posted on his social media account. I accept as truthful that part of the Defendant’s statement that the complainant had been arrested and stayed in custody for two or three weeks before he left Canada on 17 January 2020. I also accept that part of his statement where he claimed that the complainant and he had conversations on Instagram beginning on 04 February 2020.

Analysis of the Evidence

Credibility and Reliability Generally

[25] Triers of fact must consider both credibility and reliability in determining whether the allegations are proven beyond a reasonable doubt. Credibility is shorthand for truthfulness and believability. Reliability is the lens through which we evaluate the accuracy of evidence. Trial judges must be careful not to conflate credibility with reliability otherwise the fact-finding net might entangle even the least reliable piece of evidence.

[26] It is important to remember that in some cases credibility takes a back-seat to reliability. For example, there are prosecutions where the suspect is unknown to the complainant and the latter may be honestly mistaken about the identity of the perpetrator. In such a case, reliability concerns govern the analysis because credibility does not guarantee accuracy.

[27] While credibility is not a proxy for reliability, [3] where the evidence is highly credible, consistent, plausible, not inconsistent with other evidence, largely undisturbed upon a vigorous cross-examination, and not found to be otherwise unreliable, truth and accuracy are likely established.

[28] Assessments of credibility and reliability can be the most important and challenging judicial determinations in a criminal trial. Our highest court has reminded us:

Credibility and reliability assessments are also context-specific and multifactorial: they do not operate along fixed lines and are “more of an ‘art than a science’.” With respect to credibility in particular, while coherent reasons are crucial, it is often difficult for trial judges to precisely articulate the reasons why they believed or disbelieved a witness due to “the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.” The task is further complicated by the trial judge’s ability to accept some, all, or none of a witness’ testimony. [4]

[29] Judicial fact-finding is often based on inductive reasoning and evaluations of “probable interpretations of the evidence.” [5] It necessarily depends on common-sense inference-drawing. [6] To again quote the Supreme Court:

Reasoning about how people generally tend to behave, and how things tend to happen, is not only permissible, it is often a necessary component of a complete testimonial assessment. [7]

Circumstantial Evidence

[30] This case involves some circumstantial evidence: the iMessages sent from the Defendant to the complainant. The time period of these messages is unclear. Regardless, the messages are benign and unthreatening. At most, they corroborate the Defendant’s admissions that he maintained contact with the complainant in February 2020, contrary to his bail conditions.

[31] I accept that the Defendant had contact with the complainant and even lived with her in January 2020, contrary to his bail. These facts easily establish, beyond a reasonable doubt, that the Defendant is guilty of counts 1, 3, and 4 on the Information.

[32] I am not satisfied that it is proven to the requisite degree that the Defendant threatened the complainant or sexually assaulted her. There is only the complainant’s testimony offered to support these allegations. Her testimony is unreliable. Reasonable doubt also resides in the gaps in evidence. Here, the absence of any messages containing a threatening video or an actual threat is not easily discarded in the calculus of proof.

Conclusion

[33] I have considered all of the evidence in this case. I have several residual doubts that the Defendant ever threatened or sexually assaulted the complainant. However, the Defendant’s statement to police convinces me beyond all doubt that he continued to live with the complainant on 07 January 2020 and he maintained social media contact with her in February 2020, contrary to his recognizance of bail.

[34] As a result, I find N.R. guilty of counts 1, 3, and 4 and not guilty of counts 2 and 5 on the Information before the court.

Released: 01 May 2024 Justice G. Paul Renwick

[1] R. v. Kruk, 2024 SCC 7 at paras. 59-62 [2] R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242 [3] R. v. H.C., 2009 ONCA 56 at para. 41 [4] Kruk, supra, at para. 81 [5] Kruk, supra, at paras. 71 and 75 [6] Ibid. [7] Kruk, supra, at para. 72