COURT FILE NO.: CR-12-2661

DATE: 20130814

Delivered Orally: August 14, 2013

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

H.A.

Defendant

Jane Magri, for the Crown

Gregory Goulin, for the Defendant

HEARD: March 11, 12, 13, 14, and 15, 2013; June 10, 11, 13 and 14, 2013; June 19, 2013

Pomerance j.:

INTRODUCTION

[1] H.A. is charged with three sexual offences against the complainant S.M., as well as one count of threatening death. The sexual offences are alleged to have taken place between July 1, 2004 and December 31, 2007, when the complainant was 12 and 13 years of age. The threat is alleged to have been made on April 2, 2012.

[2] In her testimony, the complainant described four episodes of sexual activity, including sexual touching, forced fellatio, vaginal and anal intercourse. The accused testified and denied engaging in any sexual conduct with the complainant. The testimony of the accused was confirmed in various respects by other defence witnesses.

[3] Because the accused testified, I must apply the well know paradigm from R. v. W.(D.). I am not to simply compare the evidence of the accused with that of the complainant and decide which account I prefer. To the contrary, the burden remains throughout upon the Crown to prove all essential elements beyond a reasonable doubt. I will return to address the burden and standard of proof in due course.

THE EVIDENCE

[4] I will begin by dealing with the evidence of both the Crown and defence as it relates to the alleged sexual offences. I will then turn to the evidence as it relates to the alleged threat on April 2, 2012.

The Sexual Offences

The Case for the Crown

[5] The Crown called the complainant to testify, as well as two police officers involved in the arrest of the accused. The Crown did not call evidence from other members of the complainant’s family, though many were present in court during the trial proceedings.

[6] The complainant S.M. is a younger cousin of the accused. Both were born in Kosovo and later immigrated to Canada. The complainant and her family came to Canada first. When the accused arrived in Canada, he lived, for a time, with the complainant’s family in Halifax. Eventually, they all came to live in the Windsor-Leamington area. The complainant, together with her parents and her six siblings, settled into a house on D[…] Avenue in Windsor. The accused moved into an apartment in Leamington. The two families frequently visited each other at their respective homes.

[7] The complainant testified that the first incident of sexual abuse took place while she was 12 years old, and in Grade 7. This would correspond to the year 2004. The complainant testified that, one day that summer, she and her family went to the beach in Leamington and then stopped in to visit at the accused’s apartment. The complainant went to take a shower and while she was in the bathroom the accused entered and got into the shower with her. She testified that he touched her body including her breasts. She managed to get out of the shower, get dressed and go into the living room. Her other family members were no longer there, having already left the house.

[8] The next alleged incident took place about three weeks later, in August, just after the complainant turned 13. The complainant testified that the accused stopped by her house while her parents were at work. She was home with some of her siblings. The accused asked the complainant if she would come over to his apartment, claiming that her parents were coming over later. She agreed and went to the Leamington apartment with the accused. The two sat in the living room watching t.v. The complainant testified that the accused tried to pull down her shorts and began rubbing her vaginal area. He stood up in front of her, pulled his penis out of his pants, and he stroked it until he ejaculated onto her face. The complainant left the bedroom and returned to the living room where she fell asleep. The accused carried her back into the bedroom where he took her clothes off. He began rubbing her vaginal area and engaged in digital penetration. He then inserted his penis into her vagina. He pulled his penis out of her and ejaculated on her body. After she cleaned herself up, the accused drove her home.

[9] According to the complainant, the third incident happened some time that fall. She was with a friend in a playground after school when the accused drove up in his vehicle. He asked the complainant to come with him, as he had something to show her. She got into his car. They went and got ice cream at a McDonald’s drive through and then he drove to an area near the river on the west side. According to the complainant, the accused pulled down his pants and exposed his penis. The complainant observed that his penis has a skin tag on it. The accused began stroking his penis and then forced the complainant’s mouth on it. He let her go and slapped her. He did not ejaculate.

[10] The final incident described by the complainant was also alleged to have taken place when she was 13 years of age. She testified that, while she was walking with friends, the accused drove by and told her that he wanted to show her something he bought at the mall. She agreed to accompany him to his apartment in Leamington. When they got there, he took her to the bedroom where he threw her on the bed, and slapped her a few times, touching her in a sexual manner. He then removed her clothing and forced her to engage in vaginal and anal intercourse.

[11] The complainant did not report these incidents to anyone until April 2, 2012.

The Case for the Defence

[12] The accused insisted that he never engaged in any sexual activity with the complainant. It was his evidence that he was never alone with complainant in any residence. His denials were not shaken during cross-examination.

[13] The accused and his wife acknowledged that they often visited with the complainant’s family, either at the complainant’s house, or their own home. The families maintained relatively good relations, though their contact dropped off a few years before the April 2, 2012 incident. Some acrimony had developed between the families over unrelated issues.

[14] Various aspects of the complainant’s testimony were contradicted by defence witnesses.

[15] The complainant testified that the offences commenced in spring or summer 2004, and that all four offences incidents took place in the accused’s apartment in Leamington. According to the accused, he did not live in the Leamington apartment at the time of the alleged offences. His wife confirmed his evidence on this point. Both testified that they lived in Leamington for only a short period of time, moving in when they got married in June 2003, and moving out six months later. In January 2004, the accused purchased a house in Windsor as his wife was pregnant and they needed a larger home. The house needed some repair work. Therefore, the accused and his wife lived with his wife’s parents for two or three weeks before moving in. The house was split into three units. The accused and his wife moved into the unit on the main floor. The other two units were rented out to tenants. The deed to the house in Windsor, entered as an exhibit at trial, proved that the house was purchased on January 9, 2004.

[16] The accused testified that he was never alone with the complainant or any of her sisters, though two of her brothers stayed with the accused and his wife from time to time. The accused and his wife both insisted that they never went to the beach with the complainant or her family. Nor did the complainant’s family ever come to their home after they had been to the beach.

The Alleged Threat

The Complainant’s Evidence

[17] The complainant testified that, on April 2, 2012, she was with her fiancé when she noticed that she had a missed call on her cell phone. She did not recognize the number. This surprised her, as only a few people knew how to reach her on her cell phone. She called the number back and the accused answered. She testified that he started calling her names and threatened that he would kill her. She testified that he said that if she had told anyone about the incidents he would “tear her pussy apart”. She told the accused to leave her alone, telling him (falsely) that her husband was a police officer. The complainant testified that she was afraid. She received a call from her mother telling her that the accused was at the family home looking for her. She and her fiancé rushed home, at which time they saw the accused’s car parked on the street across from the house. They parked behind him, bumping the back of his vehicle. The complainant testified that, as she and her fiancé walked toward the house, the accused struck her fiancé with his keys. In response, her fiancé struck the accused.

[18] The complainant’s mother asked what had happened, at which time she told her that the accused had raped her since she was a child. The police were called and the accused was arrested. His car was left outside the complainant’s house for two days while he was in custody.

[19] During cross-examination, the complainant was asked if she attended at the accused’s place of employment on April 2, 2012, leaving a note on the windshield of his vehicle. She denied doing this. The complainant testified that she was with her fiancé all afternoon.

Testimony of the Accused

[20] The accused painted a very different picture of the events of April 2, 2012. He testified that he was working as a truck driver that day, starting his shift at 2:00 a.m. After parking his personal vehicle in the yard, he boarded a truck and drove to Franklin, Ohio in order to pick up a load. He was scheduled to return to the yard at 2:00 p.m, so that another driver, N.L., could drive the load to Oakville, Ontario. While on route, the accused received a telephone call from N.L., who told him that there was a note on his car from S. (the complainant). N.L. told him that the note said that she hadn’t seen him for a long time; that he should call her before she put him in jail; that that her husband was a police officer.

[21] When the accused arrived back at the yard, he went to his car and picked up the note, which was secured under the windshield wiper. The note, which was written in an Albanian dialect, translated into English as follows:

This is your cousin S. [first name]. Please call me because we need to talk something before you lose your wife and children because my husband is a police officer. Please call as soon as possible

[phone number provided]

[22] The accused testified that he was in shock and did not know what to do. He called the number but no one answered. He went to buy groceries and called the number again, at which time the complainant answered. The complainant told him that she wanted to meet him at a Tim Hortons nearby to discuss something “before you lose your family”. The accused asked why they would meet and she responded, “You know”. The accused insisted that they talk in front of the complainant’s parents and told her that he would meet her at her family home.

[23] The accused arrived at the house before the complainant. He parked across from the house and pushed the buzzer. The accused had the keys to the car attached to a hook on his belt. When the complainant’s mother came to the door, the accused handed her the note from his windshield and said: “What’s going on?” The complainant’s mother took the note and told him to get off her property. The accused testified that he never saw the note again.

[24] The accused went back to his car to wait for the complainant’s father. When the complainant arrived with her fiancé, she drove her vehicle into the back of his car. The accused got out of his car and was struck by something on the left side of his head, causing him to fall to the ground. He thought that he might have lost consciousness before feeling a number of hits on his head and body. He perceived that he was being assaulted by more than one person. Photographs taken of the accused a short time later confirm that he had injuries to the left side of his head.

[25] His next memory was of being lifted from the ground by two police officers, being arrested, handcuffed, and placed in the van. He did not have his car keys with him at the time of arrest.

Cell Phone Records

[26] The Crown introduced cell phone records at trial.

[27] Records indicate that the accused called the complainant’s cell phone number six times between 2:25 p.m. and 3:47 p.m. on April 2, 2012. The first two calls took place at 2:25 and 2:26. The second two calls took place at 2:59 and 3:00. The last two calls occurred at 3:25 and 3:47. Another call was placed by the accused’s phone to the complainant’s phone at 7:48 p.m.

[28] The accused testified that he might have called the complainant’s number a few times before she actually answered and spoke to him. He testified that, on a few occasions, someone answered and just breathed into the telephone. The phone records seem to confirm this as a possibility. The first four calls made by the accused to the complainant are very brief, lasting from 6 to 17 seconds. The fifth call is 320 seconds in duration and the sixth call is 102 seconds. The accused testified that it was during one of the longer calls that the complainant told him to meet her at the Tim Hortons.

[29] The records do not support the testimony of the complainant regarding the calls made on April 2, 2012. The complainant testified that she received a telephone call from a number that she did not recognize, and that she called the number back to find out who it was. If this had occurred, the records would presumably disclose a call from the complainant’s phone to the phone of the accused. There is no such entry.

[30] While the records do not perfectly correspond to the testimony of either witness, they are more consistent with the testimony of the accused than that of the complainant.

Other Evidence Confirming the Note

[31] Three defence witnesses testified about the placement of a note on the accused’s windshield on April 2, 2012.

[32] F.Q. owned the trucking business that employed the accused. F.Q. parked his trucks in a yard that he rented from a local business owner, Jim Deans. The yard was also used by drivers to park their personal vehicles while they were on the road in trucks. Mr. Deans confirmed that the accused routinely parked his personal vehicle in the yard rented by F.Q..

[33] Mr. Deans testified that, one day at the beginning of April 2012, a man and a woman attended at the yard. The woman said that the accused’s vehicle, which was parked in the yard, belonged to her father whom she hadn’t seen for about six weeks. Mr. Deans knew that the car belonged to the accused, and that he worked for F.Q.. He alerted F.Q. to the fact that someone was looking for the accused. He and F.Q. walked toward the vehicle at which point they saw a letter placed on the windshield. It contained 10 lines of text written in Albanian.

[34] Mr. Deans described the woman who came to the yard looking for her father as being well dressed, with long brown hair past her shoulders. She was said to be 5 foot 8 or 9 inches. Mr. Deans told a private investigator, to whom he gave a statement, that he would recognize the woman if he saw her again. At the time Mr. Deans testified, the complainant was seated in the courtroom along with other family members, including female family members. When asked if he saw the woman from the yard in court, the witness pointed to and identified the complainant.

[35] F.Q. testified that, on April 2, 2012, when he returned to the truck yard from Adrian, Michigan, Jim Deans approached him and told him that the daughter of the accused had been at the yard looking for her father. F.Q. told Mr. Deans that this was odd because the accused’s daughter was only six or seven years old. Mr. Deans spoke of a letter on the accused’s windshield and F.Q. went to look at it. He tried to read it, but did not understand all of the words. N.L. was present. He was better able to understand the dialect used in the note and he helped to translate. F.Q. recalled that the note said: “I am S. Here is my phone number. It would be nice for you to call me today or you will go to jail because my husband is police.” F.Q. believed that the note also said: “I feel sorry for your children because you will be left fatherless”. F.Q. testified that, as he was driving home, he contacted the accused on the radio to tell him that someone had left a note for him.

[36] N.L. testified that the note said: “call me (phone number provided). I feel sorry for the children; you have three children, I’m not sure”. According to N.L., F.Q. was still present in the yard when the accused arrived, and handed him the note from the windshield.

[37] Jim Deans, F.Q., and N.L. gave statements to a private investigator retained by the defence. Those statements were disclosed to the Crown in May 2012, 10 months before the trial. No investigation or follow-up was conducted by the Crown or police.

The Photos of the Accused’s Car

[38] During the complainant’s evidence, certain photographs were introduced. The complainant did not tell the police or Prosecution about the existence of these photographs until the first day of trial. The photos purported to depict a tire iron or crowbar on the front dashboard of the accused’s vehicle. The complainant testified that she took these photographs the day after the accused’s arrest, while his vehicle was still parked outside her family’s home.

[39] There is reason to doubt the authenticity of this evidence.

[40] The accused testified that the item in the photograph looked like a tire iron that he kept in the back of the van, in case he needed to change a tire. He testified it was never in the front of the car and that he never placed it on the dashboard.

[41] The accused testified that he did not have his car keys with him when he was arrested. The accused remained in custody until April 4, 2012, during which time his car was parked outside of the complainant’s house. His keys were not with the property he collected upon being released from custody.

[42] The evidence established that the accused’s car keys were in the possession of the complainant and her family during the time that he was in custody.

[43] The accused was released from custody on April 3, 2012. His brother-in-law M.[^1] was present at the time. After the accused was released, M. drove him to the county jail so that he could pick up his personal possessions. It came to M.’s attention that the accused’s car keys might be in the possession of F.R.. F.R. lived next door to the complainant’s family in the same duplex. M. called F.R. to see if he had the car keys. F.R. did have the keys and agreed to deliver the accused’s car to a location away from the complainant’s residence.

[44] F.R.’s wife was home when the car keys were delivered. She testified that R.M., the complainant’s father, came to the door and gave her the accused’s car keys and phone.

[45] It was either later that same day, or the next day, that F.R. used the keys to drive the accused’s car to the intersection of E[…] and D[…] Street in Windsor, where he met the accused and M.. When they met, M. got into the accused’s vehicle. He drove it to the accused’s home, while the accused drove the vehicle owned by M..

[46] Neither F.R. nor M. saw any item on the front dash of the car when they drove it. They did not see anything that resembled the item depicted in the photographs proffered by the complainant. The item depicted in the photographs was sufficiently large that a person in the driver’s seat could not fail to notice its presence.

ANALYSIS

General Principles Governing Credibility

[47] Credibility is a central issue in this case. The complainant has described a series of sexual acts; those acts are denied by the accused. The question is whether the Crown has proved the occurrence of those acts beyond a reasonable doubt.

[48] Certain principles govern the assessment of the evidence. First, H.A. is presumed to be innocent and that presumption is only displaced if and when the Crown proves the essential elements of an offence beyond a reasonable doubt. This principle rests at the heart of our criminal justice system. Second, the burden remains on the Crown throughout these proceedings to prove guilt beyond a reasonable doubt. There is no obligation on the accused to prove anything. Third, in assessing whether the Crown has discharged its onus, I must not simply compare the evidence of Crown witnesses to the evidence of defence witnesses and decide which evidence I prefer. Rather, the question is whether, viewing the evidence as a whole, the Crown has discharged its burden to prove guilt beyond a reasonable doubt.

[49] The presumption of innocence is best applied through the following steps, first identified by the SCC in R. v. W. (D.):

1. If I believe H.A.’s evidence that he did not commit the offence, I must acquit.

2. Even if I do not believe H.A.’s evidence, if it leaves me with a reasonable doubt as to whether or not he committed the offence, I must acquit.

3. Even if H.A.’s evidence does not leave me with a reasonable doubt, I can only convict if, on the evidence as a whole, the Crown has proved each of the essential elements beyond a reasonable doubt.

[50] There is no magic to the chronology of these steps. For example, the court is entitled to examine the evidence led by the Crown before turning to the evidence of the defence. The point is to ensure that each step is taken at some point during the deliberation process. Moreover, this exercise neither requires nor permits that any particular item of evidence be viewed in isolation. For example, the evidence of the accused must not be viewed on its own, but rather, within the context of all of the evidence heard at the trial. Finally, these steps do not apply exclusively to the testimony of the accused. They must be followed whenever there is evidence that is exculpatory, or otherwise supports some aspect of the defence.

[51] I will now apply these principles to the evidence in this case.

Analysis of the Case for the Crown

[52] The case for the Crown hinged on the complainant’s testimony. The complainant came across as an honest and forthright witness. She appeared sincere in her descriptions of the sexual abuse. There was a compelling level of detail in the sexual acts that she described. From time to time in her testimony, she conveyed a level of emotion that seemed consistent with the recollection of a traumatic event. She answered questions in a direct and straightforward manner. While demeanour is of diminished importance in credibility assessments, the complainant appeared to be offering an honest recollection.

[53] While the complainant appeared to be sincere, that is not the end of the inquiry. I must consider the extent to which the complainant’s evidence was either supported or contradicted by other evidence adduced at trial. I must consider the reliability of her evidence in deciding whether or not to accept it.

[54] I am troubled by three aspects of the evidence, all of which cast doubt on the reliability and, in some instances, the credibility of the complainant’s evidence:

1. The evidence establishing that the accused moved to Windsor in January 2004;

2. The evidence casting doubt on the authenticity of the photographs produced by the complainant; and

3. The evidence establishing that the complainant attended at the accused’s workplace and left him a note on April 2, 2012.

[55] I will deal with each of these in turn.

The Location of the Accused’s Residence

[56] The complainant testified that the acts of sexual assault took place in Leamington, in an apartment that the accused lived in. Other evidence indicates that the accused and his wife only lived in the Leamington for a short time, from June 2003 until January 2004 when they bought their house in Windsor. The date of purchase was confirmed by the deed, which was introduced as an exhibit at trial.

[57] If the accused and his wife moved to Windsor at the beginning of 2004, the incidents of sexual assault could not have taken place at the time and in the location described by the complainant.

[58] The first offence was said to have taken place when the complainant was 12 years old and in Grade 7; the second was said to have taken place two weeks later, in August, just after she turned 13; the third was said to have occurred one day in the fall while she was in Grade 8; and the fourth was also said to have occurred when she was 13 years of age. The complainant was quite clear in her evidence that she was in Grades 7 and 8 when the offences occurred. The complainant was born on July 26, 1992. Therefore, she was 12 years old in the summer of 2005 and she turned 13 on July 26, 2006.

[59] The complainant insisted that the offences took place at the accused’s apartment in Leamington. She described the details of travelling to Leamington with the accused on the dates in question, and the rooms in the Leamington apartment where the assaults were said to have occurred. However, the defence evidence would indicate that the accused and his wife moved out of the Leamington apartment over a year before the commencement of the alleged offences. While time frame is not an essential element of the offence, the contrast between the complainant’s testimony and the other evidence casts some doubt on the reliability of her recollections.

[60] The Crown argued that I should find that the accused and his wife must have deliberately lied about the date they moved from Leamington to Windsor. It was the Crown’s position that the two of them must have fabricated their evidence on this point. I do not agree. The deed of purchase and sale supports the testimony of the accused and his wife. It is true that the deed records the date of purchase and not the date of occupancy. However, it is reasonable to expect that, once the accused and his wife bought a new house, they would move into it with some dispatch, rather than pay rent on an unnecessary apartment.

[61] Save for the complainant’s testimony, there is no other evidence to contradict the testimony of the accused and his wife on when they moved to Windsor. The Crown did not call any of the complainant’s family members to testify about where the accused lived at the relevant time. Given the frequent visits between families, these individuals, who were present in court for the proceedings, could presumably have shed some light on the issue.

[62] I do not go so far as to draw an adverse inference against the Crown. That is, I am not prepared to infer that the evidence, if called, would have been adverse to the Crown. However, the failure of the Crown to call those witnesses leaves an important element of the complainant’s evidence unconfirmed, in the face of defence evidence to the contrary.

[63] I find as a fact that the accused did not live in Leamington during the time of the charges. Rather, he had already moved with his wife to the house they bought in Windsor.

The Concern about Authenticity of the Photographs

[64] The second concern relates to the photographs that purport to depict the accused’s vehicle on April 3, 2012. The photographs produced by the complainant appear to depict a tire iron or crowbar on the front dash of the vehicle, just above the steering wheel. The complainant testified that she took these photographs on April 3, 2012, the day after the accused’s arrest. The Crown urged the court to infer from these photographs that the accused armed himself with a weapon before attending at the complainant’s home on April 2, 2012. It was said that this evidence supports the allegation that he threatened the complainant and further that he intended to carry out his threat.

[65] The circumstances surrounding these photographs are troubling. First, the photographs are far from clear. They appear to depict an item on the front dashboard of a car. However, neither the item nor the car is readily identifiable. There is nothing in the photograph to indicate that the car depicted is, in fact, that of the accused.

[66] Second, these photographs were not produced until very late in the day. The complainant produced a receipt from Walmart, dated June 15, 2012, for the printing of eight 4x6 photographs. She testified that the receipt was for the photographs of the accused’s car. There is no way of confirming which photographs are covered by the receipt. Nor is there any explanation for why it took so long for the photos to be produced to the Crown and police. The complainant testified at the preliminary hearing on June 22, 2012, a week after the photos were printed. Yet, they were not produced at that time. It was not until the first day of trial in this court that the complainant alerted the Crown to the existence of this evidence. It is difficult to understand why this material was withheld, if, in fact, the photographs were taken the day after the threat.

[67] Third, other evidence adduced at trial rebuts the suggestion that there was an item on the front dash of the accused’s car on April 2, 2012. The accused’s car was parked outside the complainant’s home between the accused’s arrest on April 2, 2012, and April 4, 2012, when F.R. delivered it to the corner of E[…] and D[…] Street. If the item was in the car on April 2, 2012, and the car remained undisturbed, the item would have been there on April 4, 2012. Yet, the two people who drove the car on April 4, 2012 – F.R. and M. – denied seeing anything on the front dash of the car. Given the size and location of the item in the photographs, it would not likely have escaped the attention of someone driving the vehicle. Logically, if the item was not there on April 4^th, it was not there on April 2^nd. Therefore, the evidence of F.R. and M. supports the accused’s testimony that there was no such item on the dash of his car when he drove to the complainant’s residence on April 2, 2012.

[68] The Crown insisted that the photographs accurately depicted the accused’s car on April 2, 2012. The Crown argued that the accused’s wife, who had a second set of car keys, must have secretly attended at the vehicle while it was parked in front of the complainant’s home and clandestinely removed the item from the dash of the car. Alternatively, it was said that one of the accused’s friends removed the item having obtained the second set of keys from the accused’s wife. This argument is based on impermissible speculation (see R. v. C.D., [2000] O.J. No. 1667 at para. 100; R. v. Khan, 1998 CanLII 27756 (MB CA), [1998] M.J. No. 324 (C.A.); R. v. Walker, 1994 CanLII 8725 (ON CA), [1994] O.J. No. 827 (C.A.); R. v. St. Laurent (1990), 1990 CanLII 11047 (QC CA), 57 C.C.C. (3d) 564 (Que. C.A.)). There is not a shred of evidence to support it. The Crown never put this suggestion to the accused’s wife during cross-examination. Moreover, it is not clear how and when the accused’s wife could have carried out this covert operation without detection while the vehicle was parked on a residential street.

[69] I find, as a fact, that there was no item on the front dash of the vehicle on April 4, 2012 and therefore, that there was no item on the front dash of the vehicle on April 2, 2012. The photographs entered into evidence do not accurately depict the interior of the accused’s vehicle on April 2, 2012.

[70] How then did the photographs come into being? The defence alleges that the complainant and/or her family must have planted the item in the car, photographed it, and then removed it, in order to fabricate evidence against the accused. In support of that theory, the defence points to the fact that the complainant’s family had possession of the accused’s car keys. I need not resolve this controversy. For present purposes, it suffices to find that the accused did not place the item on the dash of his car. However and whenever the photographs were taken, they do not have a material bearing on the allegations before the court.

The Complainant’s Attendance at the Accused’s Workplace

[71] The third aspect of the evidence that is troubling concerns the visit of the complainant to the accused’s place of employment on April 2, 2012. During cross-examination, it was put to the complainant that she attended at the accused’s workplace on April 2, 2012 and placed a note on the windshield of his car. She firmly denied doing this.

[72] I find that the complainant was less than forthright in her testimony on this issue.

[73] The accused testified that a note purporting to be from the complainant was left on his windshield on April 2, 2012. This evidence was confirmed by three separate defence witnesses. Perhaps the most compelling evidence came from Jim Deans, the business owner who rented part of his yard to the accused’s boss, F.Q.. Mr. Deans was, by all accounts, an independent witness, with no meaningful ties to the accused or the complainant. Mr. Deans testified that a young woman claiming to be the accused’s daughter attended at the yard and left a note. The young woman was with a young man (presumably the complainant’s fiancé). While testifying, Mr. Deans identified the complainant as the young woman who attended at the yard that day. An in-court identification is never ideal, but it does have evidentiary significance in this case. Mr. Deans told a defence investigator that he believed he would recognize the woman if he saw her again. The complainant matches the verbal description that he provided of the young woman. His identification of the complainant as the woman at the yard is further buttressed by the content of the note, which purports to be from the complainant.

[74] The existence and location of the note were also confirmed by F.Q., the accused’s boss, and N.L., a fellow truck driver. They testified about the discovery of the note and its contents.

[75] The Crown argued with some force that I should find all three witnesses – Mr. Deans, N.L., and F.Q. – to be liars. The Crown asserted that these individuals fabricated their account of the events in order to assist the accused. The Crown asserted that either there was no note, or the note was forged by one of the defence witnesses. The Crown advanced a conspiracy theory in which all three individuals, including a business owner with only a peripheral connection to the parties, deliberately perjured themselves on behalf of the accused.

[76] I reject this argument for various reasons.

[77] First, it defies common sense to suggest that the witnesses concocted their evidence on this point. The note, as described, contained the complainant’s cell phone number. Presumably, Mssrs. Deans, N.L., and F.Q. would have no way of knowing the complainant’s phone number. It is equally unlikely that the accused would know this number. The complainant testified that it was only known to a few friends and family members. The most plausible explanation for the accused knowing the complainant’s number is that she herself wrote her number on the note.

[78] Furthermore, it is unclear why the accused or other defence witnesses would concoct the note as described. Why would the accused forge or make up a note that threatened to put him in jail and was therefore incriminating? Why would the accused write or lie about any note at all? The note took on significance for the defence at trial, but only because it happened to rebut the complainant’s testimony about the events of April 2, 2012. This renders the Crown theory of concoction to be even more implausible. It presupposes that the accused predicted what the complainant was going to say at trial; that he concocted a story that would contradict her evidence on a peripheral point; that he persuaded three independent witnesses to lie in their statements and courtroom testimony; and that he accomplished all of this by May 12, 2012, when the defence witnesses gave their statements to an investigator.

[79] It is also unlikely, if the note was forged, that the accused would have handed it to the complainant’s mother, given that she would know whether the note was in her daughter’s handwriting. The Crown argued that the accused was lying about this detail. She argued that, if there really was a note, the accused would not have handed it over to the complainant’s mother, as it was an important piece of evidence. I disagree. It is reasonable to expect that the accused, receiving a cryptic and mysterious note, would confront the complainant’s mother and ask what was going on. While the Crown insisted that the accused lied about handing the note to the complainant’s mother, the Crown led no evidence to contradict this assertion. The complainant’s mother was present in court for most, if not all, days of the trial and was therefore available as a witness. During submissions, the Crown advised that she had no statement from the complainant’s mother and did not know what she would say on this issue. Rather than make inquiries into the truth or falsity of the evidence, the Crown simply chose to assume that it was untrue.

[80] The Crown argued that there were inconsistencies in the accounts of the defence witnesses that suggested they were lying. The inconsistencies pertained to where the witnesses were when they saw or discussed the note with one another. However, if the witnesses jointly concocted an account, one would expect that their stories would be largely the same rather than different. The inconsistencies are of the kind that one might expect when witnesses are asked to describe events from many months ago. It is logical to expect that peripheral details, such as where people were standing, would fade from memory, whereas the core details regarding the note would remain relatively constant. Indeed, the effect of the Crown’s approach was to suggest a different level of scrutiny for Crown and defence witnesses. The Crown argued that inconsistencies in defence evidence confirmed that witnesses were lying, but argued that inconsistencies in Crown evidence were unimportant and did not detract from credibility.

[81] For all of these reasons, I reject the suggestion that the defence witnesses perjured themselves in aid of the accused.

[82] There is also some question as to whether this was a proper submission for the Crown to make in the circumstances of this case.

[83] In R. v. Lyttle, 2004 SCC 5, [2004] S.C.J. No. 8, the Supreme Court of Canada dealt with the good faith foundation required for putting a question to a witness in cross-examination. The court rejected the notion that counsel must be able to affirmatively prove assertions put in cross-examination, pointing out that: “it is not uncommon for counsel to believe what is in fact true, without being able to prove it otherwise than by cross-examination” (para. 47). At the same time, the court stressed that the trial judge may take steps to ensure that counsel is “not merely taking a random shot at a reputation imprudently exposed” or seeking to “waft an unwarranted innuendo into the jury box”. There must be a good faith basis for suggestions put to a witness. As the court put it:

In this context, a “good faith basis” is a function of the information available to the cross-examiner, his or her belief in its likely accuracy, and the purpose for which it is used. Information falling short of admissible evidence may be put to the witness. In fact, the information may be incomplete or uncertain, provided the cross-examiner does not put suggestions to the witness recklessly or that he or she knows to be false. The cross-examiner may pursue any hypothesis that is honestly advanced on the strength of reasonable inference, experience or intuition. The purpose of the question must be consistent with the lawyer’s role as an officer of the court: to suggest what counsel genuinely thinks possible on known facts or reasonable assumptions is in our view permissible; to assert or to imply in a manner that is calculated to mislead is in our view improper and prohibited. [emphasis added].

[84] Closing submissions are different than questions put in cross-examination. Closing submissions do require an evidentiary foundation; they must be must be directly or inferentially supported by the evidence adduced at the trial. However, the passage in Lyttle, reproduced above, has some application in this context. Often, there is no direct evidence to indicate that a witness is lying. Counsel are left to argue that this is a reasonable inference in all of the circumstances. This type of argument is not uncommon in criminal trials, where credibility is often in issue. Nonetheless, the submission that a witness has deliberately violated his or her oath should be advanced with some care. It should, at a minimum, be supported by a good faith foundation similar to that described in the Lyttle case. The assertion that the witness lied or concocted his or her evidence should be “genuinely possible based on known facts or reasonable assumptions” flowing from the evidence.

[85] In this case, the argument that defence witnesses concocted their evidence was not logically persuasive, for the reasons I have already outlined. Beyond that, it also lacked an evidentiary foundation. Crown counsel never put this suggestion to the witnesses during cross-examination. These individuals were never given the opportunity to respond to the serious allegation that they lied under oath. An allegation of concoction should not be made for the first time in closing submissions, but rather should be put to the witness who is alleged to have tailored his or her evidence (see R. v. Peavoy, 1997 CanLII 3028 (ON CA), [1997] O.J. No. 2788 (Ont. C.A.) at para. 14).

[86] Even more significantly, neither the Crown nor police took any steps to investigate the circumstances described by the defence witnesses. The Crown was given copies of the statements given by the witnesses to an investigator in May 2012, close to 10 months before trial. No steps were taken to interview these individuals, or otherwise investigate their accounts. Having failed to inquire into the veracity of the evidence, how could the Crown categorically assert that it was false? Was there not some obligation to consider the possibility that the evidence was true, or, if not true, that the witnesses were merely mistaken?

[87] This is not to say that the Crown must accept evidence proffered by the defence. Nor is it to say that there is anything improper about challenging a witness’ credibility. It is only to say that, before Crown counsel asserts that a defence witness is lying, there may be a need to make inquiries. Where witness statements are made available but ignored, it is questionable whether there exists a proper foundation for the submission that the witnesses are lying.

[88] The requirement of a foundation is consistent with the crown’s role as a quasi-minister of justice. The Crown must act in a fair and dispassionate manner. It must not overreach or blindly pursue the goal of “winning” a conviction. As it was put by Rand J. in the seminal case of R. v. Boucher (1955), 1954 CanLII 3 (SCC), S.C.R. 16 at p.26:

It cannot be over emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented; it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of the prosecution excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with a greater personal responsibility. It is to be efficiently performed with an ingrained sense of dignity, the seriousness, and the justness of judicial proceedings.

[89] In R. v. Rose, 1998 CanLII 768 (SCC), [1998] S.C.J. No. 81 at para. 107, the Supreme Court of Canada spoke of the limits on crown advocacy in closing submissions:

In presenting closing submissions to the jury, Crown counsel must be accurate and dispassionate. Counsel should not advert to any unproven facts and cannot put before the jury as facts to be considered for conviction assertions in relation to which there is no evidence or which come from counsel’s personal observations or experiences…Crown counsel is duty bound during its jury address to remain true to the evidence, and must limit his or her means of persuasion to facts found in the evidence presented to the jury.

[90] In this case, counsel may have overstepped the limits on Crown advocacy. I do not believe that these were deliberate lapses or that counsel acted in bad faith. It is more likely the case that Crown counsel maintained a fierce and unyielding loyalty to the account offered by the complainant – a form of tunnel vision – that impeded her ability to consider competing theories or conflicting evidence. Counsel was personally very committed to the case. The objectionable references occurred in the course of energetic, heartfelt, and sometimes, spontaneous submissions. Be that as it may, it is essential for Crown counsel to remain dispassionate even when, or particularly when, the passions are engaged. Counsel can and often will believe strongly in the merits of their case. However, closing submissions are better fuelled by principle and logic than by personal conviction. The goal is to shed light, not heat.

[91] I find, as a fact, that the complainant did attend at the accused’s place of work on April 2, 2012, claiming to be his daughter. She was with a man who was likely her fiancé. She claimed not to have seen her father for several months and expressed the intention to leave a note on his car. She left a note containing a message similar to that described by the defence witnesses. It was in direct response to the note that the accused telephoned the complainant on her cell phone.

[92] I find that the complainant was less than forthright in her evidence when she denied attending at the accused’s place of employment and placing a note on his car. I must conclude that she was not being truthful in this aspect of her evidence. This, in turn, casts doubt upon the credibility of other aspects of her evidence, including the evidence detailing the sexual assaults.

[93] Having regard to all of these factors, the evidence presented by the Crown does not prove, beyond a reasonable doubt, that the sexual acts described by the complainant occurred.

Evidence of the Accused

[94] Having concluded that I have a reasonable doubt on the basis of the Crown evidence, I need not go on to analyze the evidence of the accused. Were I to do so, however, I would find that his testimony, and that of his wife, also raises a reasonable doubt in my mind as to his guilt. The accused testified in a straightforward fashion. I did not find him to be defensive or evasive. He maintained his denials during persistent cross-examination by the Crown.

[95] In all of the circumstances, I find that the Crown has failed to prove the essential elements of the offences beyond a reasonable doubt, H.A. is found not guilty on counts 1 through 4 on the indictment.

Renee M. Pomerance

Delivered Orally: August 14, 2013

COURT FILE NO.: CR-12-2661

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

H.A.

Defendant

REASONS FOR JUDGMENT

Pomerance J.

Delivered Orally: August 14, 2013

[^1]: This individual’s name is spelled phonetically. He was not a witness in the trial.