COURT FILE NO.: CR-12-021
DATE: 2013-06-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Jenna-Rae Dewson, for the Crown
- and -
I.W.S.
Ryan Amy, for the Defendant
Defendant
HEARD: November 13, 2012, April 2, 3, 4, 5 and 22, 2013, and June 17, 2013
at Kenora, Ontario
WARNING
A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING
UNDER S. 486(4)(1) OF THE CRIMINAL CODE OF CANADA
Mr. Justice D. C. Shaw
Reasons For Judgment
(Delivered Orally)
[1] I.W.S. is charged with one count of sexual assault, contrary to s. 271 of the Criminal Code, and one count of sexual exploitation, contrary to s. 153(1)(a) of the Criminal Code.
[2] The offences are alleged to have occurred on March 6, 2011. The complainant is I.W.S.’s daughter, C.S..
[3] Pursuant to s. 486(4)(1) of the Criminal Code, an order was made, on consent, at the opening of trial, restricting publication of any information that could identify C.S.. That order remains in effect.
Background
[4] C.S. was born [..], 1994. She lived with her mother until her mother’s death. C.S. was 12 years of age at that time. After her mother’s death, C.S. lived for a relatively short period of time with her aunt. She then went to live with her father, I.W.S., and her young step-sister, E.. I.W.S. is the father of 14 children. There are six different mothers.
[5] As of the date of the alleged incident, March 6, 2011, C.S. was 16 years of age, E. was 3 years of age and I.W.S. was 43 years of age. As of that date, I.W.S., C.S. and E. had been living in Apartment 5, M[…] Drive, Kenora, for approximately 1 ½ years.
[6] The apartment was a two story, three bedroom townhouse with a basement. The back and front yards are at different grade levels. The basement was accessed from the outside by an entrance at ground level at the back of the home. The main floor was accessed from the outside by an entrance at ground level at the front.
[7] The main floor consisted of a living room and kitchen. There were three bedrooms and a bathroom on the second floor. There was a stairway to the second floor in the area where the front entrance and the living room met. I.W.S. and E. slept in one of the bedrooB.C.S. slept in a second bedroom. The third bedroom was a spare room.
Evidence of C.S.
[8] On consent, pursuant to s. 715.1(1) of the Criminal Code, a video recording of an interview on March 6, 2011, between an investigating officer of the Ontario Provincial Police and C.S., describing the acts complained of, was played at trial. C.S., while testifying, adopted the contents of the video recording. The video recording, together with a transcript of the recording, were admitted into evidence. C.S. also testified at trial as to the events in question. Pursuant to s. 486.2(2) of the Criminal Code, on consent, C.S. testified outside the court room by video from another room in the court house. A support person was present, on consent, pursuant to s. 486.1(2) of the Criminal Code, while C.S. testified.
[9] C.S. testified that on Saturday, March 5, 2011, at about 7:00 p.m. she, her father and E. were at home, when four girlfriends, whom she had met earlier in the day at the mall, came over - S.J., M.J., D.M. and J.S.. They brought over a bottle of vodka. C.S. described it as 26 oz., but a photograph taken that evening showed it as a 40 oz. bottle. They went into the basement. The five girls drank vodka, smoked some marijuana, chatted with friends on Facebook and listened to music on the computer in the basement.
[10] At about 8:30 p.m., after the girls had arrived, I.F. came over.
[11] C.S. said that around 9:30 or 10:00 p.m., the four girls left.
[12] S.J. had to leave because her son was at home and her grandmother was coming home from bingo, which ended at 9:00 or 9:30 p.m. She said that the four girls left together. By the time they departed, there was about ¼ of the bottle of vodka left.
[13] After the girls left, I.F. remained in the basement with C.S. and they finished off the bottle. C.S. said she had caught a buzz, but was seeing, walking and talking alright. She and I.F. remained in the basement for about 15 minutes. C.S. then went upstairs to use the bathroom on the second floor. She saw her father in the living room. She also saw, for the first time that evening, M.K.. M.K. and I.W.S. were playing cards and drinking from a 40 oz. bottle of vodka.
[14] C.S. said she was bored with being with I.F.. She asked her father if she and I.F. could come upstairs and join him and M.K. playing cards. I.W.S. agreed.
[15] She said that she and I.F. sat down with her father and M.K. and started playing cards, which involved drinking games. She said that she had five shots of vodka during the card games over about 1 ½ hours.
[16] C.S. said that she got too drunk and went upstairs to her bedroom to go to sleep. She left her father, M.K. and I.F. in the living room. I.W.S. was at his computer, M.K. was on the couch and I.F. was on the recliner. This was approximately 11:30 p.m. to 12:00 midnight.
[17] She said that she partially closed the door to her bedroom, leaving it open by about 3 ½ inches. Her bed was a queen size mattress on a box spring, with sheets and two blankets and a pillow. She lay on the middle of the bed, with her back to the wall. She was wearing a sweater, shirt and brassiere and pants, shorts and underwear. She did not get under the covers. She passed out.
[18] She said she awoke to someone pulling down her pants and underwear. She said she knew it was her father because she could feel the prickles from his facial hair when he placed his mouth on her vagina. She said that I.F. did not have facial hair.
[19] She testified that she did not want the person to know she was awake. She did not want to move, she did not want to look, she did not open her eyes, she was scared. The next thing that happened was that the person had intercourse with her. She said it went on for around ten minutes. She then heard M.K. right outside her door – eight to nine feet away say, loudly, “I.W.S.!”. The assailant pulled her pants half way up and left her there.
[20] She opened her eyes after he was gone. She pulled up her pants, opened her door as quietly as she could. She sneaked past the spare bedroom, where she said she could smell cigarette smoke and hear her father and M.K. talking. The door to the spare bedroom was opened about one foot, but she did not see into the room. She said it was common for her father and others, including herself, to smoke in the spare bedroom to avoid having to go outside.
[21] She went down the stairs quickly. When she came into the living room, I.F. was on the recliner, lying with his head back and his eyes closed. She told him they had to leave and shook him. He opened his eyes, he got up and asked why. She told him they had to leave. She grabbed someone else’s shoes and left the townhouse. She described her level of intoxication as 8 out of 10. She told I.F. what had happened. They went to his mother’s home which was close to M[…] Drive, above a convenience store. I.F. told her that she should sober up, that no one would believe her because of how drunk she was.
[22] She stayed overnight at I.F.’s house until 7 or 8 o’clock in the morning and then went to the home of S.J.. She threw her keys at S.J.’s window and woke her up. She went onto the internet to contact her sister, D.P., who lived in the United States. L.P. told her to see L.P.’s mother, L.P., who lived in Kenora.
[23] She went to L.P.’s home. L.P. called the police and took her to the hospital. Later that day, C.S. gave a statement to police which was recorded on video. It was this video recording that C.S. adopted at trial, pursuant to s. 715.1(1) of the Criminal Code.
Evidence of I.F.
[24] In March 2011, when the events in question occurred, I.F. was 17 years of age. He had been a friend of C.S. since grade six.
[25] On March 5, 2011, I.F. had some beers at his home and then went to a friend’s home and had a few Jagermeisters. Towards evening, he contacted C.S. on Facebook and talked to her about hanging out.
[26] He went to C.S.’s home, which was the first time he had been there. He knocked on the back door and was let into the basement. He went in the backdoor because he knew that C.S. was not to have boys in the basement. He estimated the time of his arrival as some time after supper and before midnight. S.J., M.J. and J.S. were in the basement with C.S.. The girls were drinking. He said that he was not drinking and was not drunk. They sat around, went on the computer in the basement, and played music. The girls who had come over eventually left, leaving him and C.S. in the basement.
[27] C.S. suggested that they go upstairs to play cards with her father. When they went upstairs, M.K. and I.W.S. were in the living room, playing cards and having drinks from a 60 oz. bottle of vodka. Neither of them appeared to be drunk.
[28] He also saw E. and M.K.’ young son running around in the house. He did not see either M.K. or I.W.S. put either of the children to bed.
[29] I.F., C.S., M.K. and I.W.S. played cards. I.F. said he was not sure for how long, but estimated about 20 to 30 minutes. During this time, he had a shot of vodka, but he said he was not drunk. He knew C.S. had been drinking before, but he did not see her drinking upstairs. After playing cards for about 20 minutes, C.S. went downstairs. I.F. did not go with her because I.W.S. would not let him.
[30] About 10 minutes later, C.S. walked by and said that she was going upstairs to sleep. I.F. saw her go upstairs. C.S. was drunk, but was able to walk.
[31] I.F. said that he was on the couch with M.K. while I.W.S. was on the living room computer on Facebook, checking out the profiles of girls. I.W.S. told I.F. to “check this girl out”, which I.F. found strange because M.K. was there. I.F. had noticed I.W.S. was on Facebook as soon as he had come upstairs.
[32] After C.S. had said she was going upstairs to sleep, I.F., M.K. and I.W.S. continued to play cards.
[33] A few minutes after C.S. went upstairs, I.W.S. also went up the stairs. I.F. said he, himself, never went to the second floor.
[34] M.K. and I.F. continued to play cards. I.W.S. did not come back downstairs. It came to I.W.S.’s turn in the card game. I.F. and M.K. commented on the fact that I.W.S. had not returned. M.K. suggested that I.F. go up to check on him. I.F. said “no” and told her to go.
[35] M.K. then went upstairs. I.F. said he heard a bit of a scream from upstairs, although he did not know who screamed.
[36] C.S. then came downstairs walking fast, covering her face with both hands, crying. She walked by him. He asked her what was wrong. She told him to grab her shoes. I.F. said he grabbed any shoes he could find from the front door entrance. His shoes were downstairs. He put them on and they left out the back door and walked to I.F.’s house about 2 blocks away. He asked C.S. what had happened. She did not say until sometime later when she said her Dad was responsible for what had happened. C.S. was crying a lot as a result of which I.F. could not tell how drunk she was. He told her that she had to be sober if she was going to talk to the police.
[37] I.F. said they got to his home sometime after midnight. I.F. let C.S. sleep on his bed while he watched television. He said C.S. was all emotional, so he left her alone. C.S. got up relatively early and left, saying she was going to see S.J..
[38] In response to a question from the Crown about his facial hair, I.F. said that he does not grow facial hair much at all and does not even shave. He said that was especially so two years ago, in March 2011.
[39] In cross-examination, I.F. said that when C.S. came down from upstairs, crying, he was sitting on the couch, not asleep, that his eyes were not closed and that she did not have to shake him awake.
[40] In response to questions on cross-examination, I.F. said that he had never seen C.S. lying on her bed and that he had never taken her pants off. He added, “that’s crazy”.
Evidence of B.C.
[41] B.C. is 28 years of age. She resided in Kenora in March 2011 in the same neighborhood as M[…] Drive. She had met I.W.S. in 2011.
[42] She said that M.K. asked her, via Facebook, to come over to I.W.S.’s home to drink.
[43] She estimated that she arrived at the home at about 2:00 a.m. to 2:30 a.m. She had already been drinking and was feeling drunk, “but not too drunk.” She saw I.W.S., M.K. and two little kids. I.W.S. and M.K. were sitting in the living room, drinking vodka and orange juice and listening to music on the computer. The two little kids were running around.
[44] B.C. had two drinks and was there for half an hour to an hour. She played cards with I.W.S. and M.K.. I.W.S. said he was going to put the kids to bed. He went upstairs. B.C. was tired and left. M.K. was listening to music when she left.
[45] She did not see I.F. that night. She said that I.W.S. did not appear to be drunk.
Evidence of J.S.
[46] J.S. was 18 years of age in March 2011. She is C.S.’s cousin (Hereafter in these Reasons J.S. will be referred to as “J.S.” and C.S. will continue to be referred to as C.S.). In March 2011, J.S. lived on M[…] Drive about a 20 second walk from M[…] Drive, with her boyfriend, her two children and her mother.
[47] On March 5, 2011, she was at home all day, chatting on Facebook with different people, including S.J., who was messaging her that she was with C.S. at I.W.S.’s house.
[48] J.S. testified that she went to I.W.S.’s house at about 8:00 p.m., March 5, 2011. She later agreed in cross-examination that she had previously told police that she had been asked at about 10:00 p.m. on Facebook to go over to C.S.’s house.
[49] She said she was the last one to arrive. She stayed 45 minutes to an hour. S.J., M.J. and C.S. were drunk. She was not sure if I.F. was intoxicated. She said she was not drinking. She, S.J. and M.J. left together at about 11:00 p.m. She believes that D.M. left earlier than they left. C.S., I.F., M.K. and I.W.S. remained at the house.
[50] J.S. identified a series of Facebook messages printed from her Facebook account. She said that she had previously agreed with a request from I.W.S. to be added as a Facebook friend. The printout included a profile of I.W.S.. Her profile included I.W.S. as a friend.
[51] The printout of messages from J.S.’s Facebook account begins with a series of short conversations between her and the Facebook account of I.W.S. on February 24, 2011, concerning I.W.S.’s washroom, and continues on March 3 and 4, 2011 relating to inquiries from her as to whether I.W.S. wanted to give her a ride to the mall. I.W.S. did not in fact, give her a ride. (In his evidence, I.W.S. agreed that he had these conversations with J.S.).
[52] The second series of entries, approximately 80 in number, between J.S. on the one hand, and I.W.S.’s Facebook on the other hand, begin with a time stamp of 1:53 a.m. on March 6, 2011 and end at 4:42 a.m. on March 6, 2011. J.S. was of the belief that she was chatting with I.W.S. in these conversations. (I.W.S., as will be dealt with later in these Reasons, testified that he took no part in this second series of conversations or chats with J.S. in the early hours of March 6, 2011).
[53] Before these Facebook entries were entered as exhibits, defence counsel advised that he was not contesting how this profile was seized by police, or its continuity or that it was between J.S. and I.W.S.’s Facebook account. However, defence counsel made it clear that there was no agreement that I.W.S. was the author of the chat emanating from his Facebook account.
[54] J.S. agreed in cross-examination that when one is chatting with a person on Facebook, one does not know if it is that person who is actually typing the message. If the Facebook account of that person is logged on, or if another person has the necessary user name and password, then a person other than the holder of the Facebook account could type and receive messages on that account.
[55] The conversations initially contain discussions about drinking, the whereabouts of the cell phone of C.S., the police taking away S.J.’s baby, information that I.F. had left I.W.S.’s house and that C.S. had “crashed”. Some Ojibwa slang is used.
[56] Around 3:16 a.m., the conversation takes on a sexual nature according to J.S.’s evidence. The chat from I.W.S.’s Facebook account refers to “FB snagging” which J.S. testified meant looking for someone on Facebook to have sex with. In her chat, she uses the Ojibwa word for “penis”. The chat from I.W.S.’s account refers to her as being “hot”, “beautiful”, “beautiful inside and out” while also using the terms “lol” and “lmao”, meaning, according to J.S., “laugh out loud” and “laugh my ass off”. J.S. responds, “I don’t roll that way”, which she said meant she does not have sex with family members. At 3:22 a.m., the chat from I.W.S.’s account talks about going to bed after he “snags”, having “a snack b4 bedtime”. J.S. asks “what that TUNA”, which she testified referred to oral sex with a woman, to which I.W.S.’s account responded “sheeit she better not be tuna like. Is that common? lol”. The conversation about “tuna” and smell and taste continues and the message from I.W.S.’s account says “lol I’m a lil fussy”.
[57] J.S. testified that at 4:41 a.m. she had seen that I.W.S. was again on-line and wrote “err you whatever happened to going to bed lier.” At 4:42 a.m., the account of I.W.S. responded “I snagged”, which J.S. testified meant that he got with somebody.
Evidence of M.K.
[58] M.K. was 21 years of age in March 2011. At the time, she had a three year old son. She is a cousin to C.S., related through I.W.S.. She described herself as a friend of I.W.S. in 2011. She said that they hung out together and watched movies. She had been to I.W.S.’s apartment a couple of times before March 2011. She believed she had stayed overnight, once, in the spare bedroom.
[59] She said she saw I.W.S. on the afternoon of March 5, 2011 at the mall. I.W.S. asked her to come to his place, to have a few drinks and to spend the night there. He picked her up later, about 4:00 p.m., at the mall and she, her son and I.W.S. went to his house. M.K. was living at 1171 M[…] Drive at the time.
[60] She said I.F. and S.J. came over shortly after supper. They were in the basement. A few other people showed up, including D.M..
[61] Both she and I.W.S. were on their Facebook accounts that evening. She said she never used anyone else’s Facebook page.
[62] She said she and I.W.S. started drinking a 40 oz. bottle of vodka after supper, mixing their drinks with orange juice. She said that she and I.W.S. drank about half the bottle, finishing about midnight.
[63] She said that C.S. and I.F. came from the basement about midnight and asked to join her and I.W.S. playing cards and drinking with them. She described C.S. as intoxicated. She said she, herself, was ok to walk but had a buzz on. C.S. and I.F. sat on the couch beside her and they played cards for 45 minutes to an hour.
[64] She testified that I.F. and C.S. both went upstairs leaving her and I.W.S. playing cards. Then everyone went to sleep – C.S. was in her room, I.W.S. was in his room and she and her son were in the spare bedroom.
[65] At this point in M.K.’ evidence in-chief, the Crown brought an application under s. 9(2) of the Evidence Act to cross-examine her on statements she had given to the police which were inconsistent with her testimony on issues of alcohol and who drank how much, who was at the residence, what time certain individuals went to bed and whether I.F. went upstairs to the second floor. The defence agreed that there were inconsistencies that entitled the Crown to cross-examine M.K. under s. 9(2).
[66] During this cross-examination, M.K. said it was true that she and I.W.S. played cards with C.S. and I.F., but that it was not true that I.F. went upstairs to the second floor with C.S.. She said that C.S. went to bed alone at 4:00 a.m. and then I.W.S. went upstairs to bed. She said she did not see him come down. She said she watched television and then took her son up to bed in the spare room at about 4:45 a.m. She said she did not see where I.F. was when C.S. went to bed, but that he was not downstairs with her. She said B.C. came over at midnight, when C.S. was in the basement with her friends and left before C.S. went to bed. She then agreed in cross-examination by the Crown that she, I.F., C.S. and I.W.S. played cards, that I.F. was with her when C.S. went to bed and then when I.W.S. went to bed. She agreed that she was wondering where I.W.S. was. She agreed, because the card game was still going on, that she suggested to I.F. that he go see where I.W.S. was and that I.F. said “no” and that he told her to go upstairs to check. She said at that time the card game was done because I.W.S. had left, and she then went to bed. She denied that she called out “I.W.S.!” while she was upstairs.
[67] M.K. was next cross-examined by the defence. She agreed that she did not have a strong memory of the night. She said that she had been in the spare bedroom that night, sharing a smoke with I.W.S.. She admitted that she had been lying in her first statement to police where she said that she had not been drinking. She said she lied to the police because it was a breach of her court imposed condition not to drink.
[68] She testified in cross-examination by the defence that C.S. went to bed a couple of hours after midnight and that she, herself, went to bed at 4:00 a.m. She said she did not wear a watch and was guessing at times. She said that C.S. and I.F. went downstairs when B.C. arrived at about 2:00 a.m. and that B.C. was by herself, downstairs, when she, M.K. went to bed. She then said it was the truth that I.F. left when C.S. went upstairs. She said I.W.S. took E. upstairs to bed and did not come back down after putting E. to bed. She then agreed that in examination in-chief she had said I.F. and C.S. went upstairs to C.S.’s bedroom for 45 minutes to an hour. She was not sure that she saw I.F. come down. She said that B.C. was invited over by I.W.S., not by her. She said that C.S. and I.F. saw B.C. and then went downstairs. She then agreed with defence counsel that despite what she said in response to the Crown’s cross-examination, namely, that she had suggested to I.F. that he go upstairs to check on I.W.S., this was not true. She agreed, contrary to what she had told the Crown, that I.F. did not tell her to go upstairs to check on I.W.S..
[69] In re-examination, M.K. said it was the truth that she and I.W.S. had smoked in the spare bedroom. She was shown a photograph of the spare bedroom (Exhibit 2, photograph 38) and identified a bottle into which they put their cigarette butts.
Evidence of I.W.S.
[70] I.W.S. has resided in Kenora since 1999. He was raised on the First Nation at Northwest Angle 33. C.S. started residing with him in 2007, after her mother’s death, when she was 12. I.W.S. was residing with E.’s mother at that time, but he was not residing with E.’s mother in 2011
[71] I.W.S. said that he had gone to the mall at about 5:00 p.m. to 5:30 p.m. on Saturday, March 5, 2011, to pick up a 40 oz. bottle of vodka to drink that night. He ran into M.K. and later picked her up from her house at about 7:00 p.m. and brought her to his home. They then sat around and talked and watched television, but were not drinking until later. He said C.S. was downstairs in the basement, alone, until S.J., M.J. and D.M. showed up at about 8:00 p.m. to 8:30 p.m. At this time, he and M.K. were still in the living room, watching television, listening to music on YouTube and chatting on Facebook.
[72] He saw D.M. leave and then fifteen to twenty minutes later, close to midnight, he saw M.J. and S.J. leave. By that time, he and M.K. were drinking.
[73] About 30 minutes after M.J. and S.J. left, I.W.S. yelled downstairs to ask C.S. what she was doing and she told him that I.F. was there. He said he explained to her that she could not be down there alone with I.F. and that I.F. would have to leave. C.S. asked him if they could come upstairs. He agreed and they came up 20 to 25 minutes later and sat on the couch in the living room.
[74] I.W.S. said that he had Google Chrome on his computer and was able to run two Facebook profiles at a time, both his and that of M.K..
[75] He said that although he had a user name and a password to log into his Facebook account, he would not log out in his own home. He said C.S. had access to his password.
[76] I.W.S. said he did not see C.S. or I.F. drinking upstairs. He said that he did not play cards with them.
[77] I.W.S. testified that C.S. and I.F. were in the living room for about 15 to 20 minutes, after which C.S. went downstairs. He said he just kept playing music on YouTube.
[78] After C.S. went downstairs, I.W.S. took E., who was sleeping on a couch in the kitchen, upstairs to her bedroom and put her to bed. He was with her for 15 to 20 minutes and then went back downstairs to the main floor. When he got there, only M.K. was present. I.F. had gone. He had last seen C.S. when she went downstairs to the basement, but assumed she was now sleeping in her bedroom because her door was closed. He never saw her after she went downstairs.
[79] I.W.S. said B.C. arrived roughly at 1:00 a.m. to 1:30 a.m. She sat on the recliner in the living room and he gave her a drink. By the end of the night, the 40 oz. bottle of vodka was still ¾ full. I.W.S. said he was drinking responsibly because he was looking after E.. He said that although he may not be able to” say times” he was not as drunk that he didn’t remember what he did. I.W.S., M.K. and B.C. played cards. I.W.S. heard E. wake up at about 3:00 a.m. and went to check on her. He ended up laying down with her and falling asleep.
[80] He woke up later that night and went downstairs. The front door was open, with only the storm door closed. He put his head out, looked around and closed the door. The only person he saw in the living room was B.C.. M.K. was sleeping upstairs in the spare bedroom with her son. I.W.S. could see into that room.
[81] After closing the door, the telephone rang. It was S.J.. The conversation dealt with the police coming to take her baby and her sister having taken the baby to avoid the police apprehending the child.
[82] I.W.S. went outside for about 50’ to look around, and then went back into the house. He then went to bed and did not wake up until later in the morning. When he woke up, he assumed C.S. was sleeping in her bedroom because on weekends she often slept until 4:00 p.m. or 5:00 p.m.
[83] In examination in chief, I.W.S. said he did not pull down C.S.’s pants or do anything sexually to her while she was passed out. In examination in chief, he said that in March 2011, he shaved daily with a four blade Gillette product.
[84] I.W.S. also said that he did not have a Facebook conversation that evening with J.S.. He said he had prior Facebook conversations with J.S. when she asked for rides. He identified the conversations in the series of entries from J.S.’s Facebook account, as to her requests for rides, on February 24 and March 3 and 4, 2011.
[85] I.W.S. was cross-examined by the Crown at some length about the Facebook entries from J.S.’s Facebook account. He agreed that the only two people who could have been on his Facebook profile page were him or M.K.. He agreed that J.S. was a Facebook friend of his in March 2011.
[86] He testified that starting with the entries on Facebook at 1:53 a.m. on March 6, 2011, somebody was using his profile page, without him knowing it, that someone was pretending to be him. He agreed that at 1:53 a.m. on March 6, 2011, he was at home in his living room with M.K., playing cards drinking and listening to music, with his Facebook page and M.K.’ Facebook page open.
[87] When cross-examined as to how, if he had his Facebook page open and was checking his Facebook page periodically throughout the night, he did not notice that someone using his profile was having a conversation with J.S., I.W.S. said he did not see the conversation, because the conversation can be deleted and it does not come back when the Facebook screen comes back up again. He was not saying that it was somebody else, he was just saying that it was not him. He agreed that the only other person in the living room on the computer with him was M.K..
[88] He said that the only way he knew about S.J.’s baby, referred to in some of the Facebook chat, was through the phone call from S.J..
[89] He explained that when someone goes on a Facebook page in his presence, he does not stand there and hover over them. He allows them their privacy. I.W.S. noted that B.C. was also in the living room at some point that evening. He said that about 4:00 a.m., when he came downstairs from falling asleep, he saw B.C. sleeping on the recliner while M.K. was asleep upstairs. He trusted B.C. and left her sleeping on the recliner after he went back upstairs to sleep.
[90] I.W.S. was referred to the entry at 3:16 a.m. - “I.W.S. was here” - and the entry at 3:47 a.m. - “But he’s gone now, C.S. is “crashed”. He agreed that someone would have to have been at his house to know that.
[91] He agreed that J.S. was correct in her evidence about the meaning of some Anishinabe slang used in the messages. However, he disagreed with the interpretation of the word “snag” as being intended for sexual purposes. He described it as a joking term, that it was like a date. He also said he would not speak to his niece, J.S., about oral sex with a woman.
[92] I.W.S. said that in the afternoon of March 6, 2011, at about 2:50 p.m., he knocked on the door of C.S.’s bedroom and saw that the bedroom was empty. He thought she was at a friend’s or her cousin’s or at another community.
[93] I.W.S. testified that M.K. was not correct when she said that the two of them were smoking cigarettes in the spare bedroom. He said that at that time, he had quit smoking for two months.
[94] I.W.S. said that he did not invite B.C. on Facebook that night to come over. He said she must have been invited by M.K.. He said that B.C. came over about 15 minutes after he put E. to sleep.
Submissions of the Defence
[95] The defence submits that because credibility is a key issue, it is necessary to apply the three step analysis set out in R. v. W.(D.), [1991], 63 C.C.C. (3d) 397 (S.C.C.).
[96] The defence submits that I.W.S. should be believed, that he was consistent and adamant that he had not sexually assaulted his daughter. The defence acknowledges that in cross-examination I.W.S. was argumentative with the Crown, but submits that this was understandable in view of the seriousness of the allegations against him and the vigorous nature of the cross-examination.
[97] The defence submits that at the end of the day it is a “he said – she said” issue and that there is nothing to corroborate the evidence of C.S..
[98] The defence submits that although there is nothing to corroborate C.S.’s evidence, there is evidence that contradicts her from which it should be concluded that her evidence is flawed, mistaken or untruthful. These inconsistencies include the time when friends arrived and left, her estimate of how long she was playing cards and when she went up to her room.
[99] The defence points to C.S.’s intoxication and the fact that although she testified that she was drinking with her girlfriends from a 26 oz. bottle of vodka, a photograph from that evening which she identified showed that they were drinking from a 40 oz. bottle.
[100] With respect to C.S.’s evidence of the prickles she felt during oral sex, the defence points to I.W.S.’s evidence that he shaved daily and the fact that there are no photographs of him at the time with facial hair. The defence also notes that C.S. did not mention prickles in her statement to police or at the preliminary inquiry.
[101] The defence points to the differences in the evidence of C.S. and I.F. after C.S. came hurrying down the stairs from the second floor – differences as to where I.F. was sitting, whether he was asleep and which door they went through on leaving the house.
[102] With respect to the Facebook entries, the defence submits that it is not possible to say that I.W.S. was a party to the chats with J.S. – no one saw him typing, there was nothing to show that the chat from his profile came from his computer or even from a computer in his house. The defence submits that even if it were found that the chat came from his house, both M.K. and B.C. had access to his computer and to his Facebook account which he left logged on.
[103] The defence submits that the timelines set out in C.S.’s evidence do not fit the time stamps on the Facebook conversation which go into 3:00 a.m. – 4:00 a.m. and therefore the Facebook entries have no evidentiary value.
Submissions of the Crown
[104] The Crown agrees that the analysis of the key credibility issue falls under W. (D.).
[105] The Crown submits that the evidence of I.W.S. should not be accepted. The Crown submits that I.W.S. would not agree with the Crown on even uncontentious matters and that at every opportunity he slipped in criticisms of C.S. – that she was troublesome, ran away, and was bi-sexual while contrasting himself as an exemplary parent.
[106] The Crown submits that I.W.S.’s assertions that someone else was on his Facebook account with J.S. cannot be believed.
[107] The Crown submits that because I.W.S.’s evidence cannot be believed, the case comes to be determined on the third step of the W. (D.) analysis. In this regard, the Crown submits that there are two questions to be answered – was C.S. sexually assaulted and by whom.
[108] With respect to the first question the Crown submits that there was nothing to shake C.S.’s evidence that she was sexually assaulted. With respect to the second question, the Crown submits that there were only two males in the house at the relevant time – I.W.S. and I.F.. The evidence of I.F. was that he did not have to shave. The evidence of I.W.S. was that he shaved daily. The evidence of identification of I.W.S. as the assailant is further confirmed, the Crown submits, when M.K. says “I.W.S.!” outside C.S.’s bedroom and the sexual assault immediately stops.
[109] The Crown submits that in the important details there is no inconsistency between the evidence of C.S. and I.F..
[110] The crown attributes any inconsistencies as to when C.S.’s friends left, or by what door she left, to the fact that C.S. was a child who had been drinking. The Crown submits that time is not an essential factor in this case and notes that everyone who was estimating times had been drinking and no one was wearing a watch.
[111] The Crown submits that the evidence of I.F. is significant and should be accepted as corroborative of C.S..
[112] The Crown submits that while there are aspects of M.K.’ evidence that cannot be accepted, because in her testimony she began to agree with whatever was suggested to her, there are small parts of her evidence that can be accepted because they are corroborated by other witnesses, for example, her evidence that she and I.F. discussed who should go upstairs to check on I.W.S. and her evidence that she and I.W.S. smoked in the spare bedroom.
[113] The Crown submits that the most powerful piece of corroborative evidence, other than I.F.’s evidence, are the words “I snagged” at 4:42 a.m. on I.W.S.’s Facebook account. The Crown characterizes this as an admission of sexual assault by I.W.S.. The Crown submits that it goes beyond coincidence that on the very evening that C.S. said she was sexually assaulted by her father, including having oral sex forced on her, there is a chat on I.W.S.’s Facebook page about snagging, and sex, and tuna. The Crown submits that it is unrealistic to accept that C.S., M.K. or B.C. would have been engaging in this chat.
Discussion
[114] Conflicting evidence has been presented on the vital issue of whether I.W.S. sexually assaulted or exploited his daughter. Credibility findings have to be made on the conflicting evidence. The rule of reasonable doubt applies to those issues. The required instructions from W. (D.), at p. 409 C.C.C. are well known:
“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), 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.”
[115] As regards the first step in the W. (D.) formula, I must not consider the accused’s version of events in isolation, as if the Crown had led no evidence. The evidence that favours the accused must be assessed in the context of all the evidence.
[116] 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 pp. 307-308 :
“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]”
[117] 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]
[118] The third step of W. (D.) is based on total rejection of the evidence for the defence.
[119] Whether a person appears to be sincere in the witness box is only one element that enters into a finding of credibility. As O’Halloran J.A. of the British Columbia Court of Appeal observed in Faryna v. Chormy, [1951] B.C.J. No. 152 (C.A.), at paras 10-12, opportunities for knowledge, powers of observation, judgment, memory and whether the evidence of a witness is in harmony with the preponderance of possibilities which a practical and informed person would readily recognize as reasonable, in that place and in those conditions, must be considered.
[120] I begin, firstly, with an assessment of the evidence of I.W.S.. I do not find his evidence credible nor, having rejected it do I find that it raises a reasonable doubt. These are the first two steps of the W. (D.) analysis.
[121] I reach these conclusions for a number of reasons.
[122] I believe that I.W.S. was the author of the messages emanating from his Facebook account to J.S., not only for those messages on February 24 and March 3 and 4, 2011, but also for the second series of messages beginning with the time stamp of 1:53 a.m. and ending at 4:42 a.m. on March 6, 2011.
[123] It defies rational belief that for the two hours and forty-nine minutes between 1:53 a.m. and 4:42 a.m., that someone pretending to be I.W.S., was sending and receiving approximately 80 Facebook messages on his account, while deleting each message so that I.W.S., who was also on his Facebook account during that night, never saw any of the messages.
[124] The defence submits that there was no evidence of which computer the messages on I.W.S.’s Facebook account came from. The only other person to have the password was C.S.. There was no evidence, nor was there any suggestion by the defence, that for almost three hours C.S. was using some other computer to chat in her father’s name on his account. The explanation proffered by I.W.S. was that in the privacy of his home, on his computer in the living room, he left his Facebook account logged on. The implication of this was that one of M.K. or B.C. had access to the account and was surreptiously sending, receiving and deleting these messages.
[125] As I.W.S. himself acknowledged, the Facebook conversations advising that I.F. had been at the house would mean that the person writing the message would have to have been at I.W.S.’s house to know that fact. This points to the messages having come from the house and again goes back to I.W.S.’s suggestion that because it was not him chatting, it had to be either M.K. or B.C.. Both women said they were not using I.W.S.’s Facebook account. It is unrealistic to conclude that either of these two women were pretending to be I.W.S., hitting on J.S., as a self-described “hot old man” and chatting about snagging and having oral sex with a woman, and moreover, doing so while avoiding any notice from I.W.S.. I cannot accept his explanation that they could have done so because he was careful to preserve their privacy while they were on the computer, avoiding looking at what they were doing.
[126] As observed by Cory, J. in R. v. Lifchus, [1997] 3 S.C.R. 320 (S.C.C.), at para 39, a reasonable doubt is not an imaginary or frivolous doubt. It is based on reason and common sense, derived from the evidence or absence of evidence. I agree with the submission of the Crown that it would fly in the face of reason to accept the explanation of I.W.S. that someone else was writing on his Facebook page.
[127] I do not go as far as the Crown’s submission that the Facebook chat and in particular the message at 4:42 a.m. “I snagged”, is an admission by I.W.S. that he sexually assaulted his daughter.
[128] However, I find the Facebook issue is significant in assessing I.W.S.’s credibility.
[129] I find that I.W.S. also was not truthful on the question of whether he was playing cards and drinking with I.F., C.S. and M.K.. Although I disregard those parts of the evidence of M.K., where she agreed in cross-examination with whichever counsel was leading her, repeatedly contradicting herself, I do accept her evidence about playing cards and drinking with C.S. and I.F.. She gave that evidence without being led, without hesitation and in a straightforward manner. She said that after C.S. and I.F. came up from the basement, they asked to play cards with her and I.W.S.. C.S. and I.F. drank with them because she and I.W.S. still had some alcohol left. She said that C.S. and I.F. sat on the couch beside her and they played cards for 45 minutes to an hour. With the exception of how long they played cards, her evidence and the evidence of I.F. and C.S. is quite consistent and completely at odds with I.W.S.’s evidence.
[130] I also accept the evidence of M.K. that the spare bedroom was where she and I.W.S. smoked. Her evidence is supported by her identification of a photograph of the spare bedroom showing a bottle where they put their cigarette butts. This is contrary to I.W.S.’s evidence that he had quit smoking two months before the incident in question and therefore his assertion that he could not have been smoking in the spare bedroom as C.S. hurried out of her bedroom after the assault.
[131] I find I.F.’s testimony significant in assessing the credibility of I.W.S.. I accept I.F.’s evidence on all the material issues. His evidence was consistent with the evidence of the other witnesses other than I.W.S.. It was consistent on examination in chief and in cross-examination. It was given matter of factly. There were no observable embellishments or inherent weaknesses. I.F. testified that after he came up from the basement, he, C.S., M.K. and I.W.S. played cards. He had a shot of vodka, but was not drunk. C.S. left the card game and went downstairs. She then walked by ten minutes later and said she was going upstairs to bed. I.F. continued to play cards with I.W.S. and M.K.. I.W.S. was looking at profiles of girls on Facebook and was trying to show I.F., telling him to “check this girl out”, I.F. said he found this “kind of weird” because of the presence of M.K.. A few minutes after C.S. went upstairs to the second floor, I.F. saw I.W.S. leave the card game and also go upstairs. Ten minutes passed. I.F. never saw I.W.S. come back down the stairs. I.F. and M.K. were puzzled by I.W.S.’s prolonged absence from the card game. He asked M.K. what she thought I.W.S. was doing. They discussed who should go check on him. M.K. went upstairs. I.F. heard a little bit of a scream, C.S. came quickly down the stairs, covering her face and crying.
[132] This evidence of I.F., which I accept, is quite at odds with I.W.S.’s evidence. I.W.S. denied he played cards with I.F. and C.S., denied that he drank with them, said that he did not talk to them after they were sitting on the couch, did not even really look at them, that he never saw C.S. after she went downstairs. ( I note from the photographs of the house that to go to the second floor from the basement, one would have to pass through the kitchen and living room where I.F., M.K. and I.W.S. were sitting).
[133] I.W.S. said that he had gone upstairs to put E. to bed. When he came down I.F. was gone. I.W.S. said this happened before B.C. arrived. However, B.C. testified that when she came over, I.W.S. and M.K. were in the living room, sitting around listening to music on the computer and that two little kids were running around. She knew one was I.W.S.’s and presumed the second one was as well. I.F. also saw the two children when he came up from the basement.
[134] I turn next to the third stage of the W. (D.) instructions and ask, whether, without believing I.W.S. and without being left in doubt by his evidence, I am convinced of his guilt beyond a reasonable doubt by the evidence I do accept.
[135] I accept that C.S. was sexually assaulted in the manner she described. Her evidence of the sexual assault itself was not in any way shaken in cross-examination.
[136] It was apparent from the video statement given to police on the day of the events in question that this was, understandably, a traumatic event for her.
[137] I accept that C.S. was passed out on her bed, intoxicated and tired. She was awakened from her sleep by someone pulling down her pants. She realized that it was her father when he put his mouth on her vagina and she felt the prickles from his beard. She knew that I.F. had no facial hair. She did not want the person to know that she was awake. She was scared. She did not want to look. She kept her eyes closed. Next she was penetrated in sexual intercourse. That stopped when M.K., standing right outside the door of C.S.’s bedroom, called out, “I.W.S.!”. The assailant pulled her pants half way up and left.
[138] C.S. was sexually assaulted by a male. This is the only reasonable conclusion, both because she felt facial stubble during oral sex and because there was also sexual intercourse with penetration.
[139] There were only two males in the house – I.W.S. and I.F.. I have accepted I.F.’s evidence that he saw C.S. go upstairs while he and M.K. and I.W.S. played cards, that he saw I.W.S. go upstairs about ten minutes after C.S. went up, that another ten minutes passed, that M.K. went up to investigate, a short scream was heard, C.S. came quickly down the stairs in obvious distress. I.F. could see that something was wrong. C.S. told him they had to leave. I.F. grabbed any shoes he could find for C.S., which turned out not to be hers, and they left the house for his home a short distance away. C.S.’s shoes appear at the front door entrance in the police photographs taken on March 6, 2011.
[140] There are indeed discrepancies between I.F.’s evidence and C.S.’s evidence as to whether C.S. shook I.F. awake, whether he was on the recliner or the couch and whether they left the house by the back door or the front door. C.S. was drunk. She described her level of intoxication as eight of ten. She had just been through a sexual assault. Things were proceeding at a great rush. The discrepancies noted are understandable in the circumstances. However, more importantly, they are peripheral matters. The essentials of C.S. coming quickly down the stairs, crying, covering her face, I.F. sitting in the living room, the two of them leaving so hurriedly as to take whatever shoes were available and going out of the house together to I.F.’s home, were completely consistent. I am satisfied that I.F. was downstairs in the living room when the assault occurred.
[141] That conclusion leaves I.W.S. as the only male in the home who could have committed the alleged offences. He was upstairs. C.S. identified him, although her eyes were closed, by the stubble of his beard during oral sex. I.F. did not have enough facial hair then, or even at trial two years later, to shave. I.W.S. shaved daily. A photograph of his facial hair is not required to reasonably conclude that a man who shaves daily does so because he has facial hair and that he will develop stubble on his face before shaving the next day.
[142] I am satisfied that C.S. heard M.K. came outside her door and call out “I.W.S.!”, immediately after which the assailant stopped and pulled her pants part way up. This is further corroborative evidence of identity. I.F. saw M.K. go upstairs to check on I.W.S. because they both wondered why he had been gone so long from the card game and they were curious to know what he was doing up there. I.F. also heard a little scream which is consistent with C.S.’s evidence that M.K. called out “I.W.S.!”.
[143] M.K.’ evidence about smoking with I.W.S. in the spare bedroom also supports C.S.’s evidence that she smelled cigarette smoke as she slipped by the spare bedroom. The voices she heard could only have been those of I.W.S. and M.K., both of whom were upstairs at the time according to I.F.’s evidence.
For the reasons given, I am satisfied beyond a reasonable doubt that I.W.S. is guilty of the offences as charged. There will be a finding of guilty with respect to each count.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
Released: June 17, 2013
COURT FILE NO.: CR-12-021
DATE: 2013-06-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and –
I.W.S.
Defendant
REASONS FOR JUDGMENT
Shaw J.
Released: June 17, 2013
/mrm