CITATION: R. v. Williams, 2016 ONSC 1856
COURT FILE NO.: 15-40000314-0000
DATE: 20160318
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
NIKITA KERWIN WILLIAMS
Defendant
K. Nedelkopoulos, for the Crown
L. Beechener, for the Defendant
HEARD: March 8-11, 2016
REASONS FOR JUDGMENT
Michael G. Quigley J.
[1] Nikita Kerwin Williams is charged with three counts of assault, two of them with a weapon (a TV remote control unit and a leather belt), and two counts of forcible confinement. Mr. Williams lived in a common-law arrangement for several years with the complainant, Leanne Smith. They are both presently 29 years of age. At the time of the alleged offences they had one child and now they have two.
[2] These five charges arise out of three specific occurrences, all involving an alleged repeating argument between them that arose the same way on three separate occasions. It concerned photographs on the complainant’s Facebook page and the accused wanting to know what the complainant’s relationship had been with those people.
[3] The offences are alleged to have taken place between August 1, 2012 and August 31, 2013. There was some confusion in the indictment relative to the dates of the offences, given some of the uncertain testimony of the complainant, so the Crown requested and I did amend the indictment to extend the period of the indictment to cover the entire period from August 1, 2012 to August 31, 2013 for all offences charged. That amendment was not on consent. However, there was no objection from defence counsel given his position that the events are entirely fabricated so that the period of the indictment was actually irrelevant.
[4] Only two witnesses testified on this trial: the complainant, Leanne Smith, and her mother, Hortens Smith. There was an Agreed Statement of Fact introduced by the Crown, and Exhibit 1 was a 911 recording of a call made by Leanne Smith to the Toronto police on another assault matter on December 25, 2013, different from these charges. The defendant, Nikita Kerwin Williams did not testify.
[5] The question whether the offences are proven against Mr. Williams beyond a reasonable doubt necessarily focuses on the credibility and reliability of the testimony of the complainant, Leanne Smith. Whether the Crown has proven the elements of these five offences beyond a reasonable doubt rises and falls entirely on that assessment.
Background
[6] The complainant and the accused have been in a common-law relationship since 2012. They met online in cyberspace. Their first meeting was over lunch while he was doing laundry at the laundromat. Their relationship sparked and moved on from there, because not long after, the complainant became pregnant and the accused was the father. They commenced a common law relationship.
[7] They presently have a two-year-old child, Derwin, and a newborn child named Dylan. At the time these events are alleged to have occurred, the complainant and the accused were living together in a one-bedroom apartment located at 125 Isaac Devins Boulevard, Suite 2, in North York. That was near the intersection of Wilson Avenue and Sheppard Avenue in north Toronto. They moved to another apartment at 2405 Finch Avenue West, Apartment 307, in September 2013.
[8] While they were living at the Finch Avenue apartment, the complainant made a 911 call on Christmas Day, 2013. The allegation at that time was dealt with separately, but as explained later in these Reasons, the 911 call itself is relevant and of important evidential value on these proceedings. At that time, the accused was arrested and charged with simple assault of the complainant for having slapped her in the face on Christmas night. After he did not accompany her to visit either his own parents or to visit her mother on Christmas Day, they had an altercation when she returned home that night. He appears to have been charged. Although he appears to have spent a brief period of a couple months in custody in relation to that alleged offence, she testified that the charge was ‘thrown out” and the case “closed” at which time he was released.
[9] Following his release in March of 2014, Leanne Smith provided written but revocable consent for Mr. Williams to continue to be with her and their 2 children. He rejoined her and their child in March of 2014. There were no further allegations of assaults or threats thereafter, at least until the complainant made these “historical” assault allegations in July of 2014. The second child, Dylan, was born in May of 2014. After he was charged with these offences and a restraining order was issued against him, the complainant moved back to Woodbridge to her mother’s house with her two children.
[10] In July of 2014, Ms. Smith claims she was taking steps to be baptized in her church. She met with her pastor. In the course of their conversations and preparations, he told her she needed to be “right with God” and that since she and Mr. Williams were living in a common-law relationship, they needed to be baptized and to regularize their relationship under God's law. As part of the exercise of cleansing her soul in anticipation of baptism, “confession” as it might be known in some churches, Ms. Smith told the pastor about these three distinct events that she asserts took place between August 2012 and August 2013. They are events that took place a very long time, 18-24 months, before Leanne Smith made the 911 call and reported the December 2013 slapping incident to the police.
[11] The disclosure of the three events gave rise to these charges. After disclosing those events from 2012, a further meeting was arranged involving her mother and another Reverend associated with the church, and following that meeting, with her consent, the pastor called 911 to disclose those earlier 2012 incidents to Toronto Police Services on her behalf.
[12] Leanne Smith claimed they started in the summer of 2012. Sometime in the month of August of 2012, after they had taken up residence together at the Isaac Devins Blvd. apartment, she and the accused were arguing about issues relating to individuals whose photographs appeared on her Facebook. Apparently they were scrolling through the pictures together, I never knew why, and he was asking her who those people were and what her relationship had been with them. She claims he did not believe what she told him, and that he did not believe that she was being truthful. He kept questioning her and started to become angry. On what she described as the first occasion, he was unhappy with the answers that she provided to him, and so, holding the remote control for the TV in his hand, he hit Ms. Smith on her wrist (Count 1).
[13] Sometime after the remote control incident, possibly a few weeks or months later, the complainant and Mr. Williams were again engaged in exactly the same activity and the similar argument. He was allegedly again inquiring into individuals on her Facebook page. He was again unhappy with the answers that she provided. She claimed he would repeatedly question her, and if any answer she gave differed in any way from the prior response that she provided about her relationship with the person, he would become increasingly agitated and angry.
[14] She claims this caused him to order her to sit down on the floor and to put her hands behind her back. At that point, she said he took silver-grey duct tape and bound her hands together, and he also put a piece of duct tape over her mouth. He continued to ask her questions. She claimed he would pull the piece of duct tape to permit her to answer, them slap it back onto her mouth and express increasing anger at his dissatisfaction with her responses.
[15] He is alleged to have then poured about 500 millilitres of a flammable disinfectant fluid called “Zaflora”, over her body, on her upper chest area, and to have flicked a lighter that was on an adjacent bookshelf, giving rise to sparks that allegedly could have ignited the disinfectant. Her evidence varied whether it was one flick of the bic, or rather several flicks with not just a spark, but an actual flame being very close to the flammable fluid. She said that he also punched her several times in her chest during this incident.
[16] Once he was satisfied with her answers, she said he removed the duct tape with a kitchen knife and allowed her to go into the washroom to clean herself off. On the first taping occasion, she recalled needing to go to the bathroom but being unable to get up on her own, and she believed that she wet her pants as a result. After the duct tape was taken off, she immediately went into the bathroom, urinated, and then took a shower to clean herself off from the disinfectant that the defendant allegedly poured on her (Counts 2 and 3). Then she said everything returned to normal as if nothing had happened.
[17] The same argument occurred again a couple of days later, or possibly in the summer months of 2013 which would have been almost a year later – she was mixed in her answers on the timing.
[18] The complainant and the accused were again allegedly having exactly the same argument based upon having been sitting together and having again scrolled together through pictures on her Facebook with him challenging her relationships. Why this conduct was repeated these three times was unknown to me, especially since the complainant acknowledged that no new photographs had been added to her Facebook page. Nevertheless, she claimed the argument proceeded exactly the same way, his dissatisfaction allegedly developed the same way, seemingly over what must have been the same pictures, and she once again put her hands behind her back and he wrapped duct tape around her wrists to confine her. Once again he placed duct tape across her mouth. It is important to note that she testifies that on both the first and the last duct taping occasions, she never says anything as this is actually going on, nor does he. Her evidence was that neither of them spoke.
[19] Close to the beginning of her video statement to the police, at pages 3 and 4, the complainant plainly indicates that he poured disinfectant over her on both occasions, on both of the duct taping incidents. She said:
…[W]e got into an argument and he taped me – taped my arms behind my back, taped my mouth, and was say – was asking questions in order for me to tell the truth. And he – he poured chemical on me and that and he started moving a lighter close me until I started to tell the truth. He did that twice on two occasions around the summer time of 2012, and December of last year, 2013…
[20] Later in her statement and at the preliminary inquiry, however, she stated that on the second of the two taping occasions, the disinfectant bottle was brought out onto the counter but was not actually poured over her that second time that she was duct taped (Counts 4 and 5). There was also confusion over the ordering of these three events.
[21] Her evidence also revealed that on both the occasion of the assault with the remote control, and after one of the two taping incidents, once Mr. Williams was satisfied with the answers she was providing to him, everything changed and, as she indicated, they then immediately engaged in consensual sexual intercourse. Initially she said that the post-event sexual relations only took place on one occasion, but elsewhere in her testimony before me, she indicated that in fact it happened following two of the incidents. Despite the seeming horrific nature of what she described preceding it, she testified that it was reciprocal to have sex on those occasions, and she stated she was “glad that he now believed her, so she was ready to have sex with him.”
[22] On the second of the duct taping incidents, Ms. Smith also claimed that the accused hit her with a belt. She claimed to have sustained injuries from having been hit, and that she took pictures of those injuries with her cell phone. She said there were marks on her back. However she testified as well that she deleted those pictures before she reported these matters to the police in July of 2014, because she claimed she “had to sell the cell phone in order to buy food for her children”. She said she sold the phone to buy groceries. She did not remember when she sold it but she did remember having deleted the information on the phone before selling it. She claims to have received proceeds of $50 when she sold the cell phone but she did not know for sure.
[23] Finally, relative to the first incident when she was struck on the arm with the TV remote control, she indicated that she was hit on the right wrist. She was asked how many times and said she did not remember. She was asked whether it was more than once and responded affirmatively. When asked whether it was more than twice, she said she did not think so. This also became confusing in subsequent questioning.
[24] These three distinct incidents all took place prior to August 31, 2013, and certainly well prior to the December 2013 altercation where Mr. Williams slapped Ms. Smith. That occurrence quickly gave rise to her 911 call. There was no delay on her part in calling police on that occasion. It resulted in the arrival of three police officers, and Mr. Williams’ apprehension and charges for having slapped her.
[25] That occurrence is also important in the context of this case because of the 911 call itself, the interchanges between the complainant and the 911 operator and the three officers who attended at the apartment on Finch Avenue.
[26] Exhibit 1 in this case was the DVD recording of that 911 call. What is plain about its content is that the complainant was very tentative in making the call, and indicated to the 911 operator that Mr. Williams had slapped her, but that she simply wanted him to receive a warning. She did not want any more serious action to result. She testified before me that she did not want anything more serious than a warning because she knew he was not Canadian and his immigration status was precarious.
[27] She claimed he also threatened to take her son with him if he was deported. During the playback of the 911 call, when the operator asked the complainant whether Mr. Williams had ever hit her before she told the operator “[i]t’s the first time….No the police have never come before.” The operator reassures her that the officers will be there soon.
[28] An Agreed Statement of Facts was also entered as an exhibit relative to the attendance of the police officers at the apartment at 2405 Finch Avenue West on December 25, 2013 in response to the 911 call. PC Adam Wright and two other officers attended on scene. While they were at that address, PC Wright spoke to Ms. Smith. She informed him that she and Mr. Williams had an argument and that Mr. Williams slapped her face. PC Wright then advised Ms. Smith that any time there is an allegation of a domestic-related assault, the law requires that they must arrest the alleged offender, and not merely provide a warning. In response, however, Ms. Smith advised that she just wanted Mr. Williams to be cautioned. She provided her name and address to the police on scene.
[29] Importantly, however, in the context of this matter and in response to specific questions that were asked of her by the police, this complainant advised the officers that there was no previous history of domestic assaults between her and Mr. Williams, no prior occurrences, and the complainant did not provide a written statement to the police at that time.
Analysis
[30] This is a case that falls to be decided entirely on the basis of the testimony of the complainant, and her credibility and reliability as a witness; the analysis is almost entirely factual. However, there was one important legal principle put forward by the Crown. It relates to the fact that the complainant delayed for a year and possibly up to two years, in reporting the three alleged occurrences, which give rise to these five charges. Nevertheless, in December of 2013, on the very day that Mr. Williams slapped her, she immediately called 911 and reported the matter, even if only to have the police provide a warning to Mr. Williams.
[31] The decision of the Supreme Court of Canada in R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 explains that there are many reasons why a complainant may not report a domestic assault or sexual assault to the authorities soon after the time that it happens. More importantly, the case focuses on the fact that delay in reporting by a complainant does not necessarily suggest that the assault alleged never occurred. In that case, there was extensive expert evidence called which attested to the many reasons why complainants may delay reporting abuse: see paragraphs 20, 25, and especially paragraph 65, were Major J. encapsulated the principles that are now invariably used in domestic and sexual assault cases heard by juries relative to evidence of a complainant's delay in reporting. Justice Major stated the principle as follows:
A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma, like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delayed disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant. (My emphasis)
[32] Standing alone, a delay in reporting can never be an acceptable reason for a finding that the alleged assault did not happen, be it domestic or sexual. But the question in this case, addressed further later in these Reasons, is whether the delay in reporting, combined with a report of other domestic abuse but assurances made directly to the police officers by the complainant that she had not previously been subjected to domestic abuse, is a different circumstance. The question is whether that differing circumstance may properly give rise to an adverse inference against the credibility of the complainant in the context of the evidence as a whole.
[33] I turn now to my assessment of the credibility and reliability of the evidence of the complainant. In considering whether the evidence of the complainant is credible, I have considered and assessed her honesty and truthfulness. I am required to make findings as to whether I believed the witness was being truthful and telling the court what she actually recalled as best as she was able to. That is the test of credibility. It is necessarily a personal and subjective assessment, but it is based on root objective assessment criteria.
[34] Several of the questions we pose for jurors to consider when they are assessing and evaluating evidence are important in determining whether the evidence of this complainant is credible and reliable, which are important to remember here. I have reminded myself of those questions, and in particular, considered whether the complainant had a good memory and a reason to remember the things about which she testified. I considered whether some of the lengthy pauses in her evidence reflected difficulty in remembering what happened or instead evasiveness.
[35] I asked whether her evidence seemed reasonable and consistent and whether and why she might have or did say something different on an earlier occasion, either in her original statement or in her testimony at the preliminary inquiry. I asked myself whether the number of inconsistencies in her evidence made the main points more or less believable and reliable, and whether those inconsistencies were about something important or simply minor or peripheral details, whether they were honest mistakes or deliberate lies, whether the inconsistency was on what had been testified to before, and finally, whether her explanations for those inconsistencies made sense.
[36] I also considered the reliability of her testimony. All or part of a witness’s testimony may be unreliable where the witness’s ability to recall the events in question and to describe them consistently is questionable. Alternatively, evidence of the witness may also be unreliable because it is vague, non-specific or where there is concern that it is the product of a “reconstructed memory." Significant discrepancies between evidence given on an earlier occasion and later at trial will always be disconcerting, especially where they relate to the central issues; the assaults themselves.
[37] The only evidence relating to the offences in this case comes from the complainant. She reported those assaults between one and two years after they occurred, in July of 2014. In the meantime, however, there was another occasion on Christmas Day, 2013, where Mr. Williams slapped the complainant, she promptly called 911, and three police officers attended at her apartment. Mr. Williams was charged arising out of that incident. Nevertheless, on that occasion when specifically asked by the police officers whether there had ever been any other incidents of domestic abuse perpetrated against her by the defendant, the complainant said there had not been any such incidents. She said they had no prior history of domestic assaults. She did not provide the police with a written statement on that occasion.
[38] I found there to be numerous discrepancies between evidence given by the complainant in her initial statement to the police in July 2014, as compared to her testimony at the preliminary inquiry and before me at trial. Indeed, there were a number of important discrepancies within the testimony that she gave, solely within this trial alone, in chief, in cross, and in re-examination. Nevertheless, I accept the proposition that discrepancies do not necessarily mean that the testimony should be discredited. The core question is whether they are on trivial matters or matters of little import, or whether they are instead on matters that are central to the allegations and about which a truthful and reliable witness would not likely be careless, mistaken or inconsistent.
[39] Deliberate falsehoods made by a witness under oath are, of course, an entirely different matter. Where such events are found to occur in the witness's testimony, they may well taint or discredit the testimony in its entirety or cause it to be cast into doubt or to be disbelieved.
[40] Most importantly, where there were inconsistencies present such as there are in a case like this, the question is whether the presence of those inconsistencies demonstrates that the complainant shows carelessness and a lack of concern for detail, for getting the story right, which calls into question its truthfulness. It calls into question whether such inconsistencies undermine its reliability simply because of important differences in what the witness testified to on different occasions in the investigation and court processes leading to trial, but relative to central matters that are at the core of the allegations.
[41] There were a number of problems with the complainant’s evidence in this case:
(1) The ordering of the incidents: the actual timing of when the incidents occurred is not important, but the order in which they occurred is important. It is important relative to credibility, or at least reliability, because the complainant told the police that the incident involving the TV remote control occurred first. At the preliminary inquiry and in her testimony in chief here, she testified that the taping incident where she was doused with the disinfectant fluid took place first, followed by the remote control incident, followed by the second taping incident. In cross-examination, however, she changed her testimony to say that the incident with the TV remote control happened first, as she had indicated initially to the police officers in her videotaped statement.
(2) Whether she suffered visible injuries: There was an inconsistency between the evidence given by the complainant that on one occasion, when she was hit by the belt and the remote control unit, she suffered bruises, but in other parts of her testimony she said that there were no bruises or marks created, and it was simply painful.
(3) The credibility of her claim of the same repeating argument: I found the complainant’s evidence difficult to accept that the sequential repeat occurrences of the same argument could occur three separate times starting exactly the same way with her evidently showing the accused photos from her Facebook account, especially given that no new photographs were added between the first and the third incidents. It is difficult to understand why the second and third incidents would have occurred when no new photographs were added, because presumably there were no new faces to be explained by her to her common-law spouse, the accused.
(4) The inability of the complainant to recall what was actually said: The complainant was unable to actually explain the questions that were asked by the accused that were different on each of the sequential occasions, and that gave rise to her inability to answer him. She was asked how the questions differed that gave rise to her being tongue-tied and unable to respond. She had great difficulty answering that question. She could not remember any meaningful detail on those matters, and yet those occasions had to have been horrific in her mind, something about which one would expect a detailed recollection. Essentially, her evidence was exactly the same on each of the occasions where she described the two duct taping incidents, and where she described the argument relating to Facebook. Repeatedly using virtually identical language in testimony to describe events is a problem that suggested to me at least the possibility of fabrication.
(5) The problem of the flicking lighter: Between the preliminary inquiry and trial, the complainant remembered the evidence differently relative to the number of flicks from the lighter, and whether a flame actually appeared which threatened to engulf her if it got too close to her disinfectant-doused clothing. Initially, she only said this happened once. Subsequently, she said it happened a number of times, and that a flame was present. When asked why her answers were different, she responded that she had more time to remember more of what happened in detail, even though more time had passed since the initial events. She also indicated that she had been able to remember better because she had read the transcripts of her prior testimony, but they did not contain the changes she then came out with at trial. I found a fundamental problem with this evidence being in the sense that she did not actually remember what it was that had happened, but was trying to recollect in her own mind from other sources, including her own testimony given at a later time.
(6) The failure to report in response to specific questions asked by police authorities: Having had the opportunity to disclose the serious abuse that she alleges the accused perpetrated against her between August 2012 and August 2013, once combined with the fact that she specifically denied that anything had happened prior to December 2013, unlike in D.D. which was simply a case where the complainant did not come forward, this is a case where her failure to report in all circumstances raises a negative inference that affects and undermines her credibility as a witness.
[42] Finally, in this case, in addition to those six important inconsistencies or difficulties that I found in the evidence given by the complainant at this trial, as compared to prior occasions, or indeed where her evidence in chief differed from her evidence on cross-examination and then differed again from her evidence given in re-examination, or just made no sense or was internally inconsistent or suspect because of the use of almost identical descriptors, there is the problem of the deleted photographs and of the assurances provided to the 911 officers in December 2013.
[43] In my view, the explanation provided by the complainant for the deletion of the photographs that could have provided corroborative evidence relative to injuries that she said she sustained at the hands of the accused and that she photographed on her cell phone, was absolutely unbelievable. It made no sense. It called into question whether the photographs ever existed and it called into question the foundational believability and reliability, not only of her evidence relative to that particular issue, but on the case as a whole.
[44] I cannot accept that she was being truthful in that testimony. It made no sense that she would delete the photos from her cell phone, especially when, as her own actions prove, she did not need to sell the mobile phone to pay for groceries for her children, at least not immediately, since she said she only sold that phone a full year later and for only $50. Moreover, in fact to my mind, her answers to the police about photos of injuries at the initial statement and at the preliminary show her to have been caught in the lie.
[45] If this concern was not enough, it was then heightened and exacerbated by the fact that the complainant specifically told police officers in December 2013 in response to specific questions asked of her, that there had been no prior instances of domestic abuse or assaults against her by this accused. Those assurances and statements must necessarily call into question the credibility and reliability of her July 2014 disclosures of these three incidents.
[46] I do not doubt that the relationship between the complainant and the accused may well have been difficult. Certainly, there is at least one instance of proven physical abuse of her, namely, the December 2013 slap which gave rise to the 911 call and the attendance of police at her apartment on Christmas night. It is possible that these events or something like that did occur, notwithstanding some of the underlying evidential weaknesses of her testimony.
[47] I have concluded, however, that none of the charges are made out on the evidence that I heard, when it is taken and considered as a whole. As such, the Crown has not discharged its burden to prove these five charges beyond a reasonable doubt and it necessarily follows that acquittals will be entered on all five counts.
Michael G. Quigley J.
Released: March 18, 2016
CITATION: R. v. Williams, 2016 ONSC 1856
COURT FILE NO.: 15-40000314-0000
DATE: 20160318
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
NIKITA KERWIN WILLIAMS
Defendant
REASONS FOR JUDGMENT
Michael G. Quigley J.
Released: March 18, 2016