court file no.: CR/13/40000/2640000

DATE: 20140328

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

EMMANUEL ANIMODI

S. Kim, for the Crown

Daniel Rechstshaffen, for the Defendant

HEARD: March 25 and 26, 2014

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.

KELLY J.

reasons for judgment

1The defendant, Mr. Emmanuel Animodi, is charged with sexual assault contrary to s. 271 of the Criminal Code, R.S.C., 1985, c. C-46. It is alleged that he sexually assaulted the complainant (Ms. A.A.). on June 1, 2011.

2The complainant testified that while in Mr. Animodi’s office he touched her breasts, her inner thighs and kissed her. Mr. Animodi testified that he did not commit any of the acts alleged. For the reasons set out below, Mr. Animodi is acquitted.

The Allegations of the Complainant

3The complainant, at the time of this occurrence, was 19 years of age. Six months prior she had come to Canada. Initially, she lived with her aunt which gave rise to some difficulties: her aunt treated her like a slave and “kicked” her out of the house. Thereafter, she moved in with some friends and she had some difficulties there as well: it was rumored that a married uncle of a friend had taken a romantic interest in her. She was hoping to find a home with her “baby father” but nothing had come to fruition as of the date of this occurrence.

4In addition to her less than ideal living conditions, the complainant had no immigration status in Canada. Accordingly, she was having tremendous difficulty attending school and finding work. She had to rely on the generosity of an uncle who took her shopping from time to time and her sister in the United States who would send her money when she was in dire straits.

5Mr. Animodi was (and is) a Pastor and Prophet at the Fire of Miracle Ministries located at 1270 Finch Avenue West in Toronto. The services he provides in this capacity include the following: counselling, prayers and “all night miracle prayers”.

6As stated above, the complainant was living with friends at the time of this occurrence. Ms. M.T. was one of them. Ms. M.T. attends at the church and was familiar with Mr. Animodi. She was concerned that the complainant and some others living in the home were doing nothing with their time so she arranged for a visit to see Mr. Animodi.

7The allegations as set out by the complainant’s evidence are straightforward and may be summarized as follows:

a. The complainant and several others (6 or 7 other women) attended the church on May 31, 2011 after 10:00 p.m. with Ms. M.T.. Mr. Animodi met with them as a group in the room where the church services are conducted. He gave the women “prophecies” saying that he saw doctors and lawyers among them.

b. Mr. Animodi then went to his office to meet with those who wished to do so. The complainant was the first to volunteer and she went into the office alone. She testified that Mr. Animodi closed the door. They sat down and she told him about some of the issues she had confronted since coming to Canada. Mr. Animodi told her that he would help. He put his hand on her head and he prayed for her. This prayer session lasted approximately 20 minutes following which she joined the rest of the women in the church.

c. The others then went into Mr. Animodi’s office one by one. The complainant testified that when they did, the others remained in the church.

d. The complainant decided that she wished to speak with Mr. Animodi a second time. She entered his office and shut the door. She told him of further problems she was having with her boyfriend and other issues. She also told him that she had problems with her “tummy”. At no point did she describe any shoplifting or drug trafficking problems. Mr. Animodi, again, told her that he would help her and that he would take care of her.

e. Mr. Animodi started praying (again) with the complainant. He advised that he wished to give her a spiritual bath. They stood face to face. He took some oil and put it in her hand. He was praying and her eyes were closed. He was rubbing her shoulders with the oil.

f. Mr. Animodi then told the complainant to raise her top (a tube top without sleeves) and she did exposing her tummy. He rubbed her tummy with oil and prayed. The complainant prayed with him. She testified that she had no concerns at this time about Mr. Animodi’s conduct. She trusted him.

g. The complainant says that Mr. Animodi told her to remove her bra straps which she did. The complainant maintains she still had no concerns. Mr. Animodi then pulled down the cups of her bra and her “boobs” were exposed. He rubbed oil on her breasts moving his hands across her breasts while praying. This action lasted approximately 10 seconds. At this point, the complainant said that “nothing was going through her head”.

h. The complainant testified that Mr. Animodi then told her to take down her pants. She did although they were not completely removed. Her underwear stayed on. She rubbed the oil on her “bum” and then her “vagina”. Mr. Animodi started rubbing oil at her feet and then up between her legs. He continued praying.

i. After praying, Mr. Animodi told the complainant to put on her clothes. She did. As she was leaving the office, she says that Mr. Animodi hugged her with one arm and told her not to worry - he would take care of her. He then kissed her and she felt his tongue in her mouth. She pushed back, he removed his arm and she asked herself: “what the hell just happened”.

j. The complainant left the office and joined the other women. She did not disclose anything to them. The complainant says that a little while later, she confronted Mr. Animodi, saying: “Excuse me Pastor, you did something inside that room that made me feel uncomfortable, you kissed me and I want to know if that is a way of cleansing.” Mr. Animodi just smiled and told her: (i) not to say anything; and (ii) that is the way to “take out the demons”. She believed him.

k. Mr. Animodi and all of the women then went to MacDonald’s for something to eat. The complainant says that Mr. Animodi wanted to contact her in the future, asking for her phone number so they could pray. He offered to pay for cell phone service to facilitate that contact.

l. The next day, the complainant disclosed the incident to other people, including her aunt. She and her aunt called Mr. Animodi on the telephone. During the first call, he said that he was too busy to speak with them. On the second call, he was confronted with the misconduct and all she could hear on the other end of the phone was “grrrrr”.

The Evidence of the defendant

8Mr. Animodi is 48 years of age, having been born in Angola. Mr. Animodi studied at a Pentecostal bible school in Angola and started a church in that country. He fled because of the civil war.

9Mr. Animodi came to Canada in 1997. He started work as a machine operator. At the same time, he studied to become a personal support worker and was placed in an employment agency. He began working for Community Living, Toronto and worked there until 2011. He was assisting those with behavioral problems and special needs.

10Mr. Animodi also started his own company called Kemmogy Communications. He was working door to door in Brampton and Etobicoke selling internet and wireless services. He was hired by the Toronto District Catholic School Board to design a program for autistic children.

11Mr. Animodi also established the church on Finch Avenue. It is a charitable organization to help members of the community. He performs several functions in his capacity as Pastor and Prophet. “All night miracles” (i.e. prayers late at night) occur because those of the Pentecostal faith believe they can gain a greater attachment to God through prayer at night. This was an explanation provided as to why he agreed to meet Ms. M.T. and the other women (including the complainant) during the late evening of May 31, 2011 and into the morning of June 1, 2011.

12Mr. Animodi conceded much of the evidence provided by the complainant. However, their evidence differs as follows:

a. He met with the complainant once in the office and that the door remained half open. The reason? He has a policy about keeping the door half open when in prayer or counseling with others when he is alone with them. That is the “doctrine” of how he was brought up. The door is always half open or another person is present. This is to prevent harm (i.e. people might say he had said or done things which he had not).

b. The women did not remain in the area of the actual church during the sessions in his office. They sat in chairs outside of his office in rows that were approximately 2 to 3 feet from the door of his office. When he looked out of his office that night, he could see some of the women sitting there.

c. He did not engage in a spiritual bath with the complainant. In fact, he has never heard of such a thing. Those in the Pentecostal faith do not engage in spiritual baths. He did not use such a technique that night, or ever.

d. He did not tell the complainant to remove her clothes or touch her in any way sexually. He did touch the complainant’s forehead with his hands when praying which is the norm. That was the extent of any touching between the two of them.

e. Despite her denial, Mr. Animodi did discuss the complainant’s shoplifting and drug trafficking (marijuana) habits. She told him that to earn money, she engaged in shoplifting and selling marijuana. He advised her that he cannot tolerate such acts and that should they continue he would have to report such conduct to the police. Mr. Animodi says that the complainant reacted badly to this suggestion and left his office.

f. When Mr. Animodi had finished the sessions with the other women, he took them to MacDonald’s and then to their home. There was no confrontation about what had happened in the office with the complainant. The complainant’s demeanour was “normal” when he dropped her off at home.

g. The next day, Mr. Animodi did say that he got a call about the allegations but it was not from the complainant and her aunt. It was from Ms. M.T.. He denied abusing the complainant and when advised that the police would be called, he responded: go ahead. He denies ever talking with the complainant and her aunt at all.

Analysis

13Crown Counsel submits the complainant was a credible and reliable witness. When faced with contradictions from her prior statement, she conceded that her memory was better at that time. For example, when faced with the inconsistency that she told the Court at trial that she removed her top herself and to the police that Mr. Animodi removed it, she testified that the offence occurred three years ago and she cannot remember everything exactly.

14Most importantly, Crown Counsel submits, it makes no sense that they would fabricate these allegations. Afterall, Mr. Animodi was going to help her with the problems she was facing in Canada.

15I agree that the complainant appeared to be coherent and fairly straightforward when testifying (although I find the inconsistency with respect to the removal of the top troubling). I also agree that the fact that no motive had been demonstrated for her to fabricate these allegations is compelling. However, it is not my role as the trial judge to determine which of the versions I accept as true – that of the complainant or of Mr. Animodi. To approach my analysis in that way would be in error. This was confirmed by the Supreme Court of Canada in R. v. C.L.Y.,¹ para. 8:

[The purpose of the W.(D.) analysis] was to ensure that triers of fact – judges or juries – understand that the verdict should not be based on a choice between the accused’s and the Crown’s evidence, but on whether, based on the whole of the evidence, they are left with a reasonable doubt as to the accused’s evidence.

16Because Mr. Animodi testified, the Court’s analysis of the evidence is to be guided by the principles set out in R. v. W. (D.)² as follows:

(i) if the defendant’s exculpatory account is positively believed, then the trier must acquit;

(ii) if the defendant’s exculpatory account is not positively believed but, considered with the other evidence it raises a reasonable doubt, the trier must acquit; or

(iii) even if the defendant’s exculpatory account is disbelieved and does not raise a reasonable doubt, the trier must still apply the traditional burden of proof by considering all of the evidence and determining whether the Crown has proven guilt beyond a reasonable doubt.

17Therefore, I consider the principles in R. v. W.D. In assessing the evidence of Mr. Animodi, I have considered his evidence in the context of the whole of the evidence. I have not looked at it alone or in isolation. Having listened to the evidence of Mr. Animodi, I have concluded there is no reason to disbelieve it. His evidence raises a reasonable doubt in light of what he attested to at trial. He testified in a straightforward manner and described the events of the evening and how they unfolded in a candid manner. He remained unshaken during a skillful cross-examination. His response to the idea of performing a spiritual bath seemed genuine: he has never heard of such a thing.

18There was no evidence to contradict that of Mr. Animodi, other than the evidence of the complainant. For instance, there was no evidence called to show that Mr. Animodi closed his door when meeting in his office that night. Further, there was no evidence called to show that he routinely shuts his door of his office when engaged in prayer and meeting people alone. There was no evidence called to show that the women remained in the church despite his evidence that they were directly outside the door. Lastly, there was no evidence called to show that a “spiritual bath” is a technique recognized by those in the Pentecostal faith. Nor was there evidence called to show that Mr. Animodi does engage in the act of providing spiritual baths and has done so in the past, despite his denial.

19In light of all of the evidence, I am left with a reasonable doubt as to whether Mr. Animodi sexually assaulted Ms. A.A. as charged. Accordingly, he is acquitted.

Kelly J.

Footnotes

1. 12008 SCC 2, [2008] 1 S.C.R. 5
2. 2(1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.)