ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-000132-00
DATE: 2012-11-20

B E T W E E N:

Her Majesty the Queen

Kim Gagan, for the Crown

• and -

Vincent Patrick Collins

Christopher Watkins , for the Defence

Defendant

HEARD: August 20, 2012 at Thunder Bay, Ontario

Justice F. B. Fitzpatrick

Delivered Orally

WARNING

A NON-PUBLICATION ORDER HAS BEEN MADE INT HIS PROCEEDING UNDER S. 486.4(1) OF THE CRIMINAL CODE OF CANADA

Reasons for Judgment

Overview:

[ 1 ] A.R. alleges that she was sexually assaulted on four occasions by Vincent Patrick Collins. Charges are also brought against Mr. Collins alleging that common assaults took place on the occasions when A.R. alleges that she was sexually assaulted. Mr Collins flatly denies that any assaults occurred on any occasions.

[ 2 ] At the beginning of the trial, and on consent, A.R. was permitted to testify with the use of a screen pursuant to Section 486.2 (2) of Criminal Code of Canada as she was, in law, a child, at the time the assaults were alleged to have occurred. She was permitted, on consent, to have a support worker in her vicinity when she gave her testimony.

[ 3 ] A.R. is now 22 years of age. The assaults allegedly occurred in 2006. At the close of the case, the Crown amended the indictment to change the particulars of the dates when the sexual and common assaults were alleged to have occurred. The defence did not specifically oppose the amendments to the indictment but did argue strenuously that the change in the dates should be taken in to consideration in respect of an assessment of the credibility of the complainant. The four alleged incidents took place, according to the complainant, as follows:

a) Incident number one - January 2006

b) Incident number two - March 2006

c) Incident number three - June 2006

d) Incident number four - November 2006

[ 4 ] At the time of incident one and incident two, A.R. was in a common law relationship with Mr. Collins. She had started dating Mr. Collins when she was 14 years old in 2003. At that time, he was 15 years old. A.R. became pregnant in the spring of 2005 and gave birth to a son on October 21, 2005. In the spring of 2005, A.R. moved in with Mr. Collins and his family. She testified that she felt controlled by Mr. Collins during their relationship and this impacted how she dealt with the various incidents. When she turned to Mr. Collins’ family, with whom she had been living, for support following these incidents, she said she was told what happened to her was “her fault for staying with him”.

[ 5 ] A.R. claims the first incident occurred late one evening in January 2006. It is alleged to have occurred at the Collins family home at M[…] Road on the F[…] First Nation reserve. At the time, A.R. and Mr. Collins were living in the basement of the house. There was another room in the basement which was occupied by Mr. Collins’ sister. Mr. Collins is alleged to have come home, very drunk, and demanded to have sex with A.R. She testified she quite clearly denied him. He persisted, and she continued to resist, at which point he “ripped her clothes off” and proceeded to have sex with her for a period of twenty minutes. During this time, he is alleged to have told her to be quiet. At the time, the couple’s child was lying in a basinet very close to the bed where the alleged sexual assault was occurring. After Mr. Collins ejaculated, A.R. testified that he got off and left the house. She knew he was drunk because she could smell alcohol on him. According to A.R. when Mr. Collins was drinking, he became very aggressive and angry.

[ 6 ] According to A.R., the second incident occurred in March 2006, although there was some initial confusion during her evidence in chief about the date. The incident occurred at another property, S[…] Road on the F[…] First Nation. The couple had moved to their own house. Their infant son was in the adjacent room. This incident occurred later in the afternoon. The couple was standing in the kitchen. Mr. Collins is alleged to have grabbed A.R. and told her he wanted to have sex. She quite clearly said she did not want to have sex. They tussled for a moment. She told him to get out of the house. He pushed her up against a shelf, ripped off her tank top and shorts, and penetrated her. During the sex act, he told her to be quiet as to not to wake up their son. At the end of this incident, A.R. described Mr. Collins as having run off down the road to his parents’ house. According to A.R., Mr. Collins was drunk at this time.

[ 7 ] The third incident is alleged to have occurred in June 2006. By that time, the couple had separated. Mr. Collins had moved out of the house where the couple had been previously living together. According to A.R., she was alone in the house, and Mr. Collins walked in, uninvited. She was sitting on the couch watching television. He grabbed her, threw her over the couch and began to have sex with her. It lasted approximately fifteen minutes. She was screaming. She went next door to get their neighbour Chris. According to A.R., Chris came and told Mr. Collins to get out.

[ 8 ] Although Mr. Collins denied ever having sexually assaulted or assaulted A.R., he did admit there was one occasion where Chris did come to the house to break up a dispute between the couple.

[ 9 ] After the third incident occurred in June, but before the fourth incident was alleged to have occurred in November, Mr. Collins was charged with assault against A.R. arising from another incident. The assault involved Mr. Collins throwing a phone charger at A.R. Although it was not completely clear from the evidence, Mr. Collins admitted that after he had been charged, it was part of either his bail conditions or his probation conditions, that he was not to be in the presence of A.R. at any time.

[ 10 ] The only precise evidence about dates concerning the assault with the phone charger, was that the conviction was registered in June 2008. The actual date of the assault was not put into evidence by either party.

[ 11 ] The fourth incident is alleged to have occurred in a home on M[…]Road across the street from the parents of Mr. Collins. A.R. alleges that Mr. Collins came into the home, uninvited, while A.R. was having a shower. Mr. Collins is alleged to have grabbed her while in the bathroom, bent her over a washing machine and had intercourse with her. During the act, Mr. Collins is alleged to have threatened A.R. that if she told the police about the incident, he would come back and “do it ten times worse”. A.R. testified the incident took place in November 2006

[ 12 ] All four incidents forming the basis of the indictment before the Court, were reported to the police in February 2011. During cross-examination, A.R. admitted that the incidents were reported after Mr. Collins had commenced an application for custody and access to the couple’s child. However, A.R. quite vehemently denied that the laying of the charges had anything to do with the family law dispute. In my view, she was unshaken during cross-examination on her testimony in this respect. Also, she was quite adamant after being asked on at least four occasions, that her bringing forward these matters was not in any way connected to the family law case. She also denied that she had fabricated any of these matters.

[ 13 ] A.R. did admit that she had made some mistakes about the actual dates of the alleged assaults. Initially, she had said that incident one had occurred in February (as opposed to January), incident two had occurred in March (as opposed to initially saying it had been June) and incident four indicated that it had taken place in June 2007 when her testimony before this Court was that it had occurred in November 2006.

[ 14 ] Mr. Collins testified in the matter. Relatively speaking, his evidence in chief and cross-examination was quite brief. He denied that any of the incidents occurred. He did not offer a great deal of explanation about the circumstances of his relationship with A.R. However, with respect to the fourth incident, he testified that he knew at the time it is alleged to have occurred, he was not supposed to be in the presence or vicinity of A.R. as she had charged him with the phone charger assault at that time. Mr. Collins admitted to occasionally abusing alcohol and using marijuana on a recreational basis. The Crown argued this should be taken into account when assessing his credibility. Mr. Collins did admit in cross examination that on occasion he has difficulty with some memory issues.

[ 15 ] In this case, issues of credibility are clearly paramount. In assessing the evidence, I have considered the instructions of the Supreme Court of Canada in W.(D.) (1991), 1991 93 (SCC) , 63 C.C.C. (3d) 397 (S.C.C.), In W.(D.) the Court found as follows:

“The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Secondly, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole: see R. v. Challice (1979), 1979 2969 (ON CA) , 45 C.C.C. (2d) 546 (Ont. C.A.); approved by R. v. Morin, supra , at p. 207.

Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.”

[ 16 ] Regarding the first step in the W.(D.) formula, I must not consider the accused’s version of events in isolation, as if the Crown has led no evidence. The evidence that supports the accused must be assessed in the context of all the evidence.

[ 17 ] The second step should be approached as set out by Binnie J., speaking for a unanimous Court, in R. v. S.(J.H.) (2008), 2008 SCC 30 () , 231 C.C.C. (3d) 302 (S.C.C.), at paras. 10 – 13 :

“The precise formulation of the W.(D.) questions has been criticized …

As to the second question, some jurors may wonder how, if they believe none of the evidence of the accused, such rejected evidence may nevertheless of itself raise a reasonable doubt. Of course, some elements of the evidence of an accused may raise a reasonable doubt, even though the bulk of it is rejected. Equally, the jury may simply conclude that they do not know whether to believe the accused’s testimony or not . In either circumstance the accused is entitled to an acquittal.

… In light of these possible sources of difficulty, Wood J.A. in H. (C.W.) suggested an additional instruction:

I would add one more instruction in such cases, which logically ought to be second in the order, namely: “If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit”. [p.155]

In short, the W.(D.) questions should not have attributed to them a level of sanctity or immutable perfection that their author never claimed for them. [Italics of Binnie J., under-lining added]”

[ 18 ] W.(D.) makes it clear that a criminal trial is not a credibility contest where the trier of fact must choose whether to believe one side or the other. At p. 409 in W.(D.) , Cory J. stated:

“ It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown’s evidence. Putting this either/or proposition to the jury excludes the third alternative; namely, that the jury without believing the accused, after considering the accused’s evidence in the context of the evidence as a whole, may still have a reasonable doubt as to his guilt. [Emphasis added]

[ 19 ] The third step of the W. (D.) analysis is required in the event the totality of the evidence for the defence is not believed, which then leaves the evidence to be assessed on whether or not the Crown has proved its case beyond a reasonable doubt.

[ 20 ] To begin , I have a reasonable doubt about whether or not the assaults occurred with respect to incident number one, number two and number three. I was left with a reasonable doubt after considering the evidence of the accused and the complainant with respect to the allegations concerning the first three incidents. I cannot say one way or the other if I believe the accused when he denied committing the acts in incidents one, two and three. I am however left with a reasonable doubt about whether these incidents occurred because of the timing when they were brought forward. I accept the submission of the defence that the delay in bringing forward these allegations was not, as A.R.’s testified, the result of the fact that she was “afraid of Mr. Collins”. This assertion does not ring true in the face of the fact that she had the wherewithal to come forward to the police and complain such that he was charged with assault sometime after June 2006, but before November 2006. In my view, having gone through the process of breaking up with Mr. Collins, and having the courage to make the allegations concerning the assault, I cannot understand why she wouldn’t, at the same time have raised the very serious allegations of sexual assault that she said occurred from January to June 2006. This descrepancy left me with a reasonable doubt about the complainant’s evidence concerning incidents one, two and three.

[ 21 ] Her testimony concerning incident four is another matter. She testified she felt controlled by Mr. Collins during their relationship. Nevertheless she managed to put aside those feelings to have Mr. Collins charged with assault prior to November 2006. Also, in context, the fourth incident occurred while A.R. was still young, aged 17, but at a time after she did have the courage to raise the phone charger assault. The difficulty and clear change in the precise times that she says all four incidents took place, gave me some concern about her credibility, at least with respect to the first three incidents. I had no such concern about the discrepancy regarding the fourth incident. Mr. Collins had specifically threatened to do physical harm to her on the fourth occasion if she “talked”. This threat did have an impact on A.R. coming forward immediately with the allegation but she ultimately did so in February 2011.

[ 22 ] I do not believe the evidence of the accused that he did not assault A.R. during the the fourth incident. At that time, he knew he should stay away from A.R. Despite this knowledge, he ignored the court restrictions and went into a place where she was residing. On this occasion I find he had a motive to fabricate his evidence as he was under a court order to remain away from A.R. and he clearly breached that order.

[ 23 ] On the other hand there was a significant discrepancy in the evidence of A.R. as to when, specifically, this fourth incident was alleged to have occurred. Initially A.R. had told the police that it had occurred in June 2007. Before this Court she testifed that the incident occurred in November 2006. However, I do not find that this discrepancy of time was sufficient for me to not find her credible with regard to the fourth incident. As I noted earlier, the fourth incident occurred while A.R. was still young, aged 17, but at a time after she did have the courage to raise the phone charger assault.

[ 24 ] I find that A.R. gave her evidence about the fourth incident in a very forthright manner. While she became emotional at times during her testimony, she was able to remain largely composed and gave her evidence clearly and cogently. I believe her testimony that she was sexually assaulted during the fourth incident by Mr. Collins, and that he did threaten her with bodily harm if she brought the matter forward. A.R. did not sway in her evidence in this regard; she gave her evidence in a clear, thoughtful and intelligent manner.

[ 25 ] She was subjected to a fair, but intense cross-examination. During this cross-examination she did not waiver in her testimony concerning the fourth incident. She was 14 when she started living with Mr. Collins. The fourth incident occurred when she was 17. I find she was influenced not to bring all of these matters forward initially due to her age. However as she matured and matters between herself and Mr. Collins became tumultuous, particularly with respect to their child, she felt she had no choice but to bring the fourth incident to the attention of the police.

[ 26 ] I was influenced in my assessment of A.R.’s credibility with respect to the fourth incident by her demeanour both in chief and during cross examination. Her evidence given in cross examination on this topic provided background and context of that event occuring when relations between these two had deteriorated and Mr. Collins had been charged for an unrelated assault against A.R..

[ 27 ] As a result, I find A.R’s testimony compelling to convince me that the event particularized at count six and seven did occur as she testified. I am mindful that the most significant difficulty with identification of the time of the incident occurred with regard to the fourth incident. However, I am persuaded that the passage of time, from 2006 to 2011 when the incidents were reported, led to the confusion regarding the precise dates. That lack of precision was not sufficient in light of all the other evidence, to persuade me that the Crown had not proven its case in respect of counts six and seven.

[ 28 ] While I did have a reasonable doubt about the first three incidents, the circumstances of the fourth incident, and the threats made by Mr. Collins at a time when he had already been charged, leads me to disbelieve Mr. Collins evidence about the fourth incident, and find A.R. credible as to the fact that both a sexual assault and a threat to cause bodily harm was committed by Mr. Collins.

[ 29 ] Accordingly, I have a reasonable doubt about whether or not the assaults particularized in Counts One, Two, Three, Four and Five occurred. While I do not find the evidence of the accused persuasive in regard to the first three incidents, I find the Crown has not proven beyond a reasonable doubt that Mr. Collins either sexually assaulted or commited common assault as set out in the indictment for the first three incidents as alleged. Accordingly, I find that Mr. Collins is not guilty of the matters charged in counts One, Two, Three, Four and Five of the indictment before the Court.

[ 30 ] With respect to counts Six and Seven in the indictment, for reasons noted above, I do not believe the specific denial evidence of the accused, and I do accept the evidence of the complainant that the sexual assault and threat to cause serious bodily harm occurred. Considering all the evidence in total, I find the Crown has proved beyond a reasonable doubt that during the month of November 2006, an incident occurred at an apartment at M[…] Road at the First Nation Territory of F[…], wherein Mr. Collins committed a sexual assault on A.R. contrary to Section 271 of the Criminal Code and that he threatened to cause serious bodily harm to A.R. contrary to Section 264.1(1) of the Criminal Code.

[ 31 ] Convictions shall be registered in respect of these two counts on the indictment.

­­­­­­­­­­­­___________”original signed by “______________________

The Hon. Mr. Justice F. B. Fitzpatrick

Released: November 20, 2012

COURT FILE NO.: CR-11-000132-00

DATE: 2012-11-20

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – VINCENT PATRICK COLLINS, Defendant REASONS FOR JUDGMENT Fitzpatrick J.

Released: November 20 th , 2012

/hf