ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-023
DATE: 2012-12-12
B E T W E E N:
HER MAJESTY THE QUEEN
Tara Schuck , for the Crown
- and -
F.C.,
Simon Owen , for the Defendant
Accused
HEARD: September 25 and 26, 2012 at Kenora, Ontario
Mr. Justice J.S. Fregeau
Reasons For Judgment
Introduction
[ 1 ] F.C. stands charged that, on or about the 7 th day of April, 2011, at the First Nations community of L[…], in the Northwest Region, he did commit a sexual assault on K.B., contrary to section 271 of the Criminal Code of Canada . The accused pleaded not guilty to the charge. A trial was held on September 25 th and 26 th , 2012. The complainant was the only Crown witness. Mr. F.C. testified in his own defence. David Ignace, a nephew of Mr. F.C., also testified for the defence.
[ 2 ] The trial began with a defence application pursuant to s. 276 of the Criminal Code seeking leave to lead evidence of an alleged specific sexual encounter between the complainant and the accused, said to have occurred during the summer of 2010.
[ 3 ] After hearing evidence and submissions on the application, I held that such evidence could be led, both during the cross examination of the complainant and during the direct examination of the accused. The cross examination of the complainant was limited to the alleged fact of a single sexual encounter during the summer of 2010.
[ 4 ] K.B. was 18 years old at the time of trial. On direct examination, Ms. K.B. testified that she had lived in L[…] since 2010. Ms. K.B. testified that, to the best of her recollection, she began a summer job at the C[…] in August 2010 and that she met F.C. there in August 2010, where he was also employed, as a janitor.
[ 5 ] Ms. K.B. testified on direct examination that she went to Mr. F.C.’s house during the evening of April 8, 2010, never having been there before. When asked why she did so on April 8, 2010, Ms. K.B. testified that she was looking for a Conrad Trout, who was a boyfriend to Mr. F.C.’s daughter, Chastity. Based on all of the evidence led at trial, I am satisfied that Ms. K.B.’s reference to April 8, 2010 , was a slip of the tongue and that she meant to refer to April 8, 2011.
[ 6 ] Ms. K.B. testified that Mr. F.C. let her into the house, that she saw no one else inside the home and that she sat at a table with Mr. F.C.. Ms. K.B. alleged that Mr. F.C. began to grab her upper left leg with his right hand. Ms. K.B. told Mr. F.C., “don’t do that” but he persisted. Ms. K.B. testified that, at this point in time, she tried to leave the residence by attempting to walk out the back door. Ms. K.B. alleges that Mr. F.C. then grabbed her left arm and laid her down on the bed by exerting pressure with his two hands on her shoulders, such that she was forced onto the bed on her back.
[ 7 ] Ms. K.B. testified that Mr. F.C. then took off her pants. When asked by the Crown Attorney if she said anything to him at this time, Ms. K.B. testified that, “I told him “Don’t”, and I asked him if he had anything.” “Symptoms”. Ms. K.B. testified that Mr. F.C. replied, “...just a couple sores.”
[ 8 ] Ms. K.B. testified that Mr. F.C. went on top of her, held her down, took his own pants off, put his penis in her vagina and had sexual intercourse with her. Ms. K.B. was unable to estimate the duration of the intercourse. She testified that, immediately after the alleged assault, she attempted to leave through the back door, but that she couldn’t open the door.
[ 9 ] Ms. K.B. testified that she remained in Mr. F.C.’s house overnight, in “the living room”. In the morning, at “... around seven in the morning”, Ms. K.B. testified that she left the residence: “I left in the morning when he took off to work. I was, I looked there at each window if he was around the house. I didn’t see him. I ran out the back door right away.”
[ 10 ] Ms. K.B. was carefully and fairly cross examined by counsel for Mr. F.C.. Mr. Owen began by having Ms. K.B. confirm that she had testified on direct examination that April 8, 2011 was the first time she had ever been to Mr. F.C.’s home. It was then drawn to her attention that she had told the police, in a statement dated October 20, 2011, that she had been to Mr. F.C.’s home three times before. When pressed on this point, Ms. K.B. testified that “I really don’t really know how many times I’ve been there”.
[ 11 ] Ms. K.B.’s attention was next directed to her evidence at the preliminary inquiry held in this matter in Sioux Lookout, Ontario on February 8, 2012. Ms. K.B., on cross examination at trial, acknowledged giving evidence at the preliminary inquiry wherein she testified that she had been to Mr. F.C.’s home at least once prior to April 8, 2011.
[ 12 ] Defence counsel then inquired as to Ms. K.B.’s knowledge of an individual by the name of David Ignace. Ms. K.B. testified that “I don’t know who he is, but I know of him”, “I see him here and there, but I don’t really talk to him”. Ms. K.B. then confirmed, under specific questioning, that Mr. Ignace was present in Mr. F.C.’s home on the night of the alleged sexual assault.
[ 13 ] Ms. K.B. also confirmed that she had not mentioned Mr. Ignace’s presence in Mr. F.C.’s residence in her statement to the police, in her testimony at the preliminary inquiry or in her direct examination at the trial. In fact, Ms. K.B. confirmed that, at the preliminary inquiry, she had testified that she was “sure” that nobody was in the house besides F.C. on April 8, 2011.
[ 14 ] Under further cross examination, Ms. K.B. conceded that Mr. Ignace was present in Mr. F.C.’s residence when the assault allegedly occurred, “But he wasn’t awake”. Ms. K.B. testified that she did not try to tell David Ignace that she was being assaulted “ ‘cause I don’t even know the guy”.
[ 15 ] Ms. K.B. was next cross examined as to her evidence on direct examination at the trial. Specifically, she was asked to confirm that it was her evidence on direct that immediately after the alleged assault she tried to leave the residence through the back door but could not open the door. Ms. K.B. agreed that that had been her evidence. Ms. K.B. was then referred to her cross examination on this point at the preliminary inquiry. Ms. K.B. confirmed, under cross examination at trial, that she had testified at the preliminary inquiry that she had not left Mr. F.C.’s bed between the time of the alleged assault and the next morning. She agreed, on cross examination, that she had told the court at the preliminary inquiry that she had been unable to get up because Mr. F.C. was holding her down the whole time.
[ 16 ] Ms. K.B. was next cross examined as to her apparent inquiry, on the night of April 8, 2011, about sexually transmitted diseases. Ms. K.B. repeatedly denied any prior sexual relationship with Mr. F.C. and any suggestion that she wanted to have sex with Mr. F.C. on April 8, 2011. However, when it was suggested to Ms. K.B. that she thought she “might have gotten an infection from F.C.”, she replied “I don’t know”. It was then suggested to Ms. K.B. that “that’s why you actually started talking about this is because you thought you had gotten an infection from him. Is that right?’ Ms. K.B.’s response was “Yeah”.
[ 17 ] The Crown’s re-examination of Ms. K.B. began with this latter topic:
Q: “Well Mr. Owen’s question was whether or not you came forward because you were afraid of catching an STD and you said yes. Is that correct?”
A: “Yes”.
Q: “Did you have any other reason to come forward to police?”
A: “No”.
Q: “Okay. So why did you decide to report the assault to police? In your own words please”.
A: “ ‘Cause I was scared I was going to catch an other kind of STD”.
[ 18 ] Further on re-examination, Ms. K.B. was asked why she did not mention Mr. Ignace at any prior time. Ms. K.B. replied that she did not know. The complainant was also asked if she knew if David Ignace left Mr. F.C.’s home before or after she was assaulted by F.C.. Ms. K.B.’s response was “before”.
[ 19 ] The Crown led no evidence as to the physical layout of the interior of Mr. F.C.’s residence. I assume this was because the investigating police force did not prepare a scaled diagram of it as part of their investigation. As a result, I questioned the complainant on this point, given the evidence as to a third party being present that evening.
[ 20 ] Ms. K.B. testified this home consists of one level, with “one big open room, the living room is where the bed is...” The washroom and a second bedroom are the only other enclosed rooms. When asked where David Ignace was that evening, Ms. K.B. replied, “he was on the couch near, no in the living room as well as standing at the bed”. Ms. K.B. confirmed that both the couch and the bed were in the “open” living room. I asked, “And David Ignace was on the couch?” Ms. K.B. replied, “Yes. And, but he didn’t move at all”.
[ 21 ] Ms. K.B. further confirmed that it was her evidence that the alleged assault took place on the bed in the living room. Ms. K.B. estimated that the bed and couch were separated by a distance of approximately 25 feet.
[ 22 ] I further questioned Ms. K.B. on the issue of when Mr. Ignace apparently left the residence and whether he was, or was not, present when the assault allegedly took place. In answer to my question, Ms. K.B. testified that Mr. Ignace was present on the couch when she was allegedly assaulted by Mr. F.C..
[ 23 ] Both counsel were asked if they had any questions of this witness arising from my questions. Counsel for Mr. F.C. confirmed that Ms. K.B. had prepared a sketch indicating her recollection of the layout of the interior of Mr. F.C.’s residence. This sketch was filed as Exhibit #1 at trial. The sketch, and Ms. K.B., confirmed that the bed is not against the wall of the residence, but in fact more toward the centre of the open area and closer to the couch.
[ 24 ] Mr. F.C. testified in his own defence. The accused is 42 years old and has lived in L[…] First Nations since 1980. Mr. F.C. is employed by the band as a custodian at the community recreation complex.
[ 25 ] Mr. F.C. testified that he met Ms. K.B. in August 2010, when she began employment as a youth worker at the same complex. While on the one hand, Mr. F.C. described the two of them as very casual acquaintances, and only at work, he also alleged that Ms. K.B. approached him asking him for drugs and/or to advise her where she could buy drugs. Mr. F.C. also alleges that Ms. K.B. made sexual advances to him in his office at the complex and that they had one consensual sexual encounter in the gymnasium at the complex during a lunch hour break.
[ 26 ] Mr. F.C. testified that, to his knowledge, Ms. K.B. was let go shortly after she was hired. He next saw her on April 8, 2010. On this date, Mr. F.C. testified that he and his nephew, David Ignace, were both sleeping in his home. Between 1:00 and 1:30 am, Mr. F.C. heard a knock on his back door. He opened the door to find Ms. F.C. standing there. Mr. F.C. testified that his home is very small, approximately 16’ by 12’, and that the couch is approximately 9’ from his bed. This evidence was not contradicted. Mr. F.C. testified that Ms. K.B. asked who was there that night. He replied that his nephew was sleeping on the couch.
[ 27 ] According to Mr. F.C.’s evidence, Ms. K.B. entered the residence and the two of the either sat or laid on his bed while they talked. Mr. F.C. testified that Ms. K.B. again asked if David Ignace was sleeping and then asked if he was “clean”. He replied that he was. Mr. F.C. testified that the two of them then took off their clothes together and had consensual sex.
[ 28 ] Following this, Mr. F.C. testified that they went to sleep and that he went to work about 8:00 am the next morning leaving Ms. K.B. and Mr. Ignace in his residence together. Mr. F.C. also testified that Ms. K.B. wrote him out a “booze list”, presumably for him to purchase her alcohol that weekend in Sioux Lookout.
[ 29 ] Mr. F.C. was thoroughly cross examined by the Crown Attorney, the cross examination being focused primarily on the contents of his videotaped statement to the police November 1, 2011, and apparent inconsistencies between this statement and his trial testimony.
[ 30 ] Mr. F.C.’s statement to police described an incident where Ms. K.B. attended his residence prior to April 8, 2011 and he ran away to avoid police contact. It was drawn to his attention that he had failed to mention this in his direct examination.
[ 31 ] Mr. F.C.’s statement to the police described an additional sexual encounter between Mr. F.C. and Ms. K.B., wherein she gave Mr. F.C. a “blow job”. It was drawn to Mr. F.C.’s attention that both on direct and earlier on his cross examination he had testified that there had been only two sexual encounters between he and Ms. K.B. – one at the complex during the summer of 2010 and the one on April 8, 2011. Mr. F.C. attempted to clarify his evidence by stating that the “blow job” also occurred on April 8, 2011.
[ 32 ] Mr. F.C. was shown a portion of his videotaped statement wherein he advised the police that Ms. K.B. had never stayed the night at his home. On cross examination, it was put to him that he had advised this court, both on his direct examination and earlier on cross-examination, that Ms. K.B. spent the night at his residence on April 8, 2011.
[ 33 ] Mr. F.C. acknowledging lying to the police in his statement when he advised them that he had secured drugs for Ms. K.B. and essentially admitted lying to police throughout his statement to them because he “didn’t want to go to jail”. He also testified that he had burned the “booze list” allegedly left for him by Ms. K.B. because he was afraid the police would find it.
[ 34 ] David Ignace testified for the defence. Mr. Ignace is Mr. F.C.’s 35 year old nephew. He also resides in L[…] First Nations. Mr. Ignace testified that he had asked to “crash” at his uncle’s residence on April 8, 2011 because there was a party at his home. He described himself as “drunk” that night.
[ 35 ] David Ignace testified that he and his uncle went to bed sometime around 10:00 or 11:00 pm, he on the couch and his uncle on the bed. Mr. Ignace testified that the bed and couch are only 6’ or 7’ apart. At some point after they had gone to bed, Mr. Ignace heard a knock on the door and then heard talking, including a female voice, in the kitchen.
[ 36 ] Mr. Ignace later heard his uncle and the female on the bed. He testified that he neither saw nor heard anything unusual that night, but did hear talking, including the female, “mostly laughing”. Mr. Ignace described he, his uncle and the female waking up the next morning about 7:00 am and his uncle and then he leaving the residence, with the female still there. He also testified that the female was still there when he returned to Mr. F.C.’s home later that day.
[ 37 ] There was no significant cross examination of Mr. Ignace.
Analysis
[ 38 ] The accused, F.C., enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the trial until such time as the Crown has, on the evidence put before me, satisfied me beyond a reasonable doubt that F.C. is guilty of the offence charged.
[ 39 ] A reasonable doubt is not an imaginary or frivolous doubt. A reasonable doubt must not be based upon sympathy or prejudice. A reasonable doubt is based on reason and common sense. It is logically derived from the evidence or an absence of evidence.
[ 40 ] Even if I believe the accused is probably guilty or likely guilty, that is not sufficient to convict. In those circumstances, the benefit of the doubt must be given to the accused and the accused must be acquitted because the Crown has failed to prove the guilt of the accused beyond a reasonable doubt.
[ 41 ] On the other hand, I must bear in mind that it is virtually impossible to prove anything to an absolute certainty. The Crown is not required to do so. Such a standard of proof is impossibly high.
[ 42 ] If, based upon the evidence before the court, I am sure that the accused committed the offence charged, I am duty bound to convict, since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. If I am not sure, I am duty bound to acquit.
[ 43 ] K.B. has testified that she went to F.C.’s residence during the evening of April 8, 2011 looking for a friend. Mr. F.C.’s daughter was the girlfriend of the person Ms. K.B. was looking for. Ms. K.B. testified that she entered the residence and sat at the kitchen table with the accused, who began to grope her leg with his hand. She testified that she tried to leave but was prevented from doing so by the accused. Ms. K.B. testified that the accused grabbed her and forced her onto the bed where he proceeded to remove her pants, his pants and engage in non-consensual intercourse with her. Ms. K.B. further testified that she was kept in the bed overnight by the accused and that she was only able to leave in the morning after the accused left for work.
[ 44 ] Mr. F.C. testified in his own defence. The accused testified to a casual and consensual sexual encounter between he and Ms. K.B. when she came to his residence during the late evening of April 8, 2011 or the early morning of April 9, 2011. Mr. F.C. further stated that his nephew was present and very close by when he and Ms. K.B. engaged in sexual intercourse, Mr. Ignace being asleep on a couch 6’ to 7’ from the bed. This testimony was corroborated by Mr. Ignace. It was only under cross examination that Ms. K.B. acknowledged the presence of this third party in the residence on the night in question. She did not mention this in a statement to the police, in her preliminary inquiry evidence or in her direct examination at this trial.
[ 45 ] 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.”
[ 46 ] 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.
[ 47 ] 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]”
[ 48 ] 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]
[ 49 ] 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.
[ 50 ] Firstly, I do not believe the evidence of the accused as to what occurred between he and the complainant, in his home, on April 8 and 9, 2011. The cross examination of the accused successfully illustrated to me that the accused, when in a position of risk or jeopardy, will say whatever he feels necessary to extricate himself.
[ 51 ] The accused attempted to paint the complainant in the worst possible light, suggesting that she had approached him for drugs, suggesting that she used drugs while at work and suggesting that she flirted with him and engaged in casual sex with him at the complex on a lunch hour. It was my impression that this evidence was led only to make the complainant appear to be a person not worthy of belief.
[ 52 ] At one point during his cross examination, the accused essentially conceded that he had lied to the police throughout his police interview because he did not want to go to jail. In these circumstances, I am not prepared to accept as true any of the evidence of the accused.
[ 53 ] I must next consider, given that I do not believe the evidence of the accused, whether I am left in a reasonable doubt by it. In this analysis, as in the first step, the evidence that tends to support the accused must be assessed in the context of all of the evidence.
[ 54 ] Ms. K.B., Mr. F.C. and Mr. Ignace all testified at this trial that Mr. Ignace was present in Mr. F.C.’s house on April 8/9, 2011. The evidence led by the defence, which was not contradicted, confirms that this was a very small home, estimated by the accused to be 16’ by 12’. The evidence also suggests that Mr. Ignace was lying on a couch less than 10’ from the bed which held the complainant and the accused.
[ 55 ] It was only during cross examination that the complainant acknowledged Mr. Ignace’s presence in the home that night. The complainant, during cross examination, confirmed that her evidence at the preliminary inquiry had been that she was “sure” that no one else was present in the home that night.
[ 56 ] Mr. Ignace testified that he was present that night, heard a knock on the door and a female voice talking and laughing. Mr Ignace further testified that he neither heard nor saw any sign of a struggle, assault or anything unusual that night or the next morning.
[ 57 ] The Crown dealt with this issue on re-examination. The complainant testified that she “didn’t know” why she had not mentioned Mr. Ignace earlier. She also said, on re-examination, that Mr. Ignace had left before the assault. I note that on cross examination, the complainant testified that Mr. Ignace was present but asleep during the assault.
[ 58 ] I am troubled by the complainant’s evidence on this issue. She obviously sought to first suppress, and secondly to minimize Mr. Ignace’s presence and his ability/capacity to observe or hear what occurred that night. Mr. Ignace’s evidence was clear on this point and not successfully challenged on cross examination. He was present and did not see or hear anything that would lead him to conclude anything unusual occurred that night.
[ 59 ] Several other aspects of the complainant’s evidence concern me. Ms. K.B. was shown to have attempted to minimize her previous attendances at the home of the accused prior to April 8, 2011. Ms. K.B.’s evidence at trial as to whether she had attempted to leave the residence in the moments after the alleged assault was shown to be materially inconsistent with her evidence on this point at the preliminary inquiry.
[ 60 ] I am also troubled by the evidence of the complainant in regard to sexually transmitted diseases. On direct examination, Ms. K.B. testified that she asked the accused, after he had allegedly removed her pants, if he had any “symptoms”. It was put to the complainant on cross examination that the reason she filed a complaint of sexual assault against the accused was because she thought she had received an infection from him. When asked if this was correct, the complainant replied “Yeah”.
[ 61 ] In conclusion, I do not believe the evidence of the accused as to what occurred on April 8, 2011. However, the rejected evidence of the accused, in the context of all the evidence at trial, including the evidence of the complainant and that of Mr. Ignace, has left me in a reasonable doubt as to what occurred that night. After careful consideration of all of the evidence, I am unable to decide whom to believe. In these circumstances, I am duty bound to acquit.
[ 62 ] Mr. F.C. is found not guilty on count #1 of the indictment, that being a sexual assault on K.B. on April 7, 2011, contrary to s. 271 of the Criminal Code of Canada .
The Hon. Mr. Justice J.S. Fregeau
Released: December 12, 2012
COURT FILE NO.: CR-12-023
DATE:2012-12-12
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – F.C. REASONS ON JUDGMENT Fregeau J.
Released: December 12, 2012
/slf