Her Majesty the Queen v. Sean Waddell, 2016 ONSC 4962

COURT FILE NO.: CR-15-00000033-00AP DATE: 20160805 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL

BETWEEN:

HER MAJESTY THE QUEEN Appellant

– and –

SEAN WADDELL Respondent

Counsel: Rob Wright, for the Crown Paul Calarco, for the Respondent

HEARD: April 20, 2016

REASONS FOR JUDGMENT

[On appeal from the dismissal of charges on March 27, 2015 by Justice J.C. Moore of the Ontario Court of Justice]

B.P. O’Marra J.

[1] The respondent faced a series of charges arising from a domestic relationship. The allegations were very serious. The complainant testified that there were two incidents, in July and August of 2012, wherein she was confined and threatened by the respondent at knife point. She also alleged that between those two incidents she was criminally harassed by the respondent.

[2] The trial and submissions were completed over the course of seven days in 2014 and 2015. Numerous witnesses testified, including the complainant and the respondent. Both the complainant and the respondent described a tumultuous relationship and break-up. The respondent denied that any of the alleged offences occurred.

[3] Judgment was reserved for several weeks until March 27, 2015. The trial judge delivered extensive oral reasons in forty-nine pages of transcript. The respondent was acquitted on six of the seven counts. The crown conceded that the sole remaining count should be dismissed.

[4] The appellant alleges that the following errors require that there be a new trial:

(1) The trial judge erred in law by requiring expert evidence to accept the complainant’s explanations as to why she delayed reporting the abuse to the police. (2) The trial judge erred in law by finding that the respondent’s purpose in communicating with the complainant raised a reasonable doubt on the charge of criminal harassment. (3) There were misapprehensions of evidence and insufficient reasons provided by the trial judge.

[5] Several police officers and two civilians testified as to observations and interactions they had with the complainant and the respondent. As is often the case where charges arise from a domestic relationship, the only witnesses to the critical events were the complainant and the respondent. The crown’s case rested on the evidence of the complainant.

[6] The trial judge ultimately did not accept the evidence of the complainant on the contentious issues. He also did not reject the denials by the respondent. On either basis the court was obliged to acquit the respondent. See R. v. W.D., [1991] 1 S.C.R. 742.

[7] The assessments of credibility at trial are entitled to considerable appellate deference. However, for the reasons that follow, I find that there was an error in law as to how the evidence of the complainant was assessed. This relates specifically to the following:

• Evidence that the complainant delayed disclosure of alleged emotional and physical abusive conduct by the respondent; and
• Evidence that the complainant continued to remain in the relationship after incidents of alleged abusive behaviour by the respondent.

[8] The reasons for judgment refer to four dates where police responded to possible domestic incidents involving the complainant and the respondent:

• In the early hours of November 11, 2011, police attended an apartment in Toronto in response to a call from a third party. The complainant and the respondent were found alone inside. The complainant told the police that they had been dating for about four years. They were simply having a verbal argument, nothing physical. She had no concern for her own safety and said there was no history of abuse by the respondent. The police filed a report and took no further action.
• In the early evening of January 18, 2012, the police responded to a call that a male and female were arguing at a street corner. The complainant and respondent were located there. The complainant appeared upset and crying but said she had no injuries. She said she was upset with him as she did not want him to leave her. In response to the police she said there was no history of any type of abuse by the respondent and she had no concern for her well-being or safety. She was fine to be left alone with him. The police filed a report and took no further action.
• In the early hours of May 25, 2012, the police responded to a missing person report by the respondent related to the complainant. Later that morning, the officers found the complainant at her apartment. She was shocked to see them there and apologized on behalf of the respondent over his concern for her well-being. She told the police that their relationship had ceased about a year prior and the respondent would not accept that. She made no mention of any prior threats or abuse towards her or about any suicide threats by the respondent. She had no concerns for her own safety.
• In the evening of August 8, 2012, police attended a location in Toronto in response to a 911 call. The complainant introduced herself. She was crying and visibly upset. She wanted her ex-boyfriend to stop contacting her. He persisted in doing so even though the three-year relationship ended in June of 2011. She said they had separate residences but he had a key to hers and she wanted it back. The complainant told the police that there was no history of violence, threats or use of weapons against her. She did refer to his threats to commit suicide. The 911 call by her also said “he has no weapons”. The police advised her to have the lock to her residence changed. She was also advised as to the process for obtaining a restraining order. (This incident on August 8, 2012 occurred after an alleged incident involving a knife in July of 2012 that she later reported.)

[9] The complainant testified at trial about two separate incidents in July and August of 2012 when the respondent confined and threatened her while holding a knife. She also testified that between August 8 and 21, 2012, the respondent was constantly texting and calling her. He threatened to commit suicide if she did not talk to him.

[10] The complainant called 911 on August 21, 2012 and reported the two knife incidents. The respondent was arrested that day.

[11] The reasons for judgment include the following comments on the evidence of the complainant:

Her explanation as to why she did not tell the police about the prior violence was that she was not sure if an offence had been committed or that it was necessary to provide all the details. She suggested that there were earlier violent incidents, but did not really give any details about several times when he had grabbed a knife.

According to her, the defendant had threatened to kill himself 50 to 60 times by the time of his arrest. She agreed that she did not show the text messages to the police or Katarina. Her explanation for not mentioning the knife to the police was that in her mind, a gun or rifle is a weapon, not a knife. (pp. 22, 23)

In deciding what evidence I accept as a fact, I must assess both the reliability and credibility of the tendered evidence. With that I mind, I can accept all, part, or none of any witness’ testimony. Such factors as common sense, everyday experience, consistency in testimony, memory, motive to lie, demeanour on the stand, trial testimony versus earlier reports or non-reports of the same incident are utilized in assessing testimony. I am mindful of the fact that this case falls into that category of its being a “domestic” due to the relationship between the complainant and the defendant, as well, due to the fact that most of what is alleged and denied on the part of the two parties occurred outside the sight or hearing of others, and is not corroborated independently. As well, the Supreme Court of Canada decision in W.D. must be considered. (p. 29)

Ms. Haydon submits that the complainant, Ms. Kempova, came across as credible, reliable, and that I should accept her evidence as the truth. Ms. Haydon asks that I accept Ms. Kempova’s explanations for why she failed to complain to the police earlier, why she left out certain details that she testified to at trial, and to accept her conduct in the face of threats and abuse as being what one could and should expect in the context of an abusive domestic relationship.

In effect, I am being asked to take notice of the existence of the mindset of a person such as Ms. Kempova in a domestic relationship without any evidence being presented dealing with the individual Ms. Kempova in that regard. I am being asked to accept her explanation for conduct on her part that does not, on the face of it, seem logical or make sense, simply because other spouses in an abusive relationship can conduct themselves in a way that does not appear to be logical.

Ms. Haydon referred to several cases involving abusive domestic situations, and the use of past abusive incidents by the trier or fact. These cases, such as Regina v. D.S.F., Regina v. S.B., Regina v. Cook, Regina v. Battay (ph), etc. It is accepted law now that in domestic cases past abusive behaviour on the part of the spouses can be introduced by the crown. That is not an issue in this case.

In the Ontario Court of Appeal’s decision in Regina v. D.S.F., expert evidence was ruled to be admissible, not to establish if the complainant had been abused as alleged, but rather to put into context her explanations for not having left the relationship earlier, and disclose the abuse.

In this case at hand, no expert evidence was called by the crown. Also, the complainant refers to two specific instances involving the use of a knife, coupled with continued and constant contact by the defendant, not a pattern of historical physical, mental, and emotional abuse. (Underline added) (pp. 30, 31)

As noted above, several police officers testified at this trial. The testimony of the eight officers related to the dates of November 11, 2011, January 18, 2012, May 25, 2012, and August 8, 2012. On each of the above dates, two officers were dispatched to deal with a domestic situation involving Ms. Kempova and Mr. Waddell. Due to the nature of the investigations on each date, each police officer took special care to get a true sense of what was going on. On each occasion the officers made certain that:

(1) Ms. Kempova had no concern for her own safety or security, (2) there was no history of violence, and, (3) in their own minds, there was no cause for concern.

On each occasion, each officer followed the protocol when it came to a domestic, and each officer took the appropriate steps to ensure that no basis existed to conduct any further investigation. At most, the parties were separated and told to go their separate ways. (p. 32)

Finally, turning to the testimony of the complainant, Ms. Kempova; she came to Canada from Slovakia in 2007. Soon after her arrival, she and the defendant met, and they began to date. As she stated, things were good between them, 2008, 2009, but by 2010, according to her, she considered breaking up with him and returning to Slovakia to be near her family.

For a period of time she attempted to rekindle a relationship and decided to work on it with him. But by January, February 2011, she insisted that she decided to finally bring that to an end. They began, therefore, to see less and less of each other, according to her.

According to her, they entered into a transition period to help them adjust to the reality that the boyfriend/girlfriend relationship was over. During this period, they were to be just friends.

By June 2011, the relationship was just that, one of friends, no intimacy. She told him it was over, but he begged and pleaded with her not to leave him. Between June 2011 and August 2012, she did not consider them to be boyfriend and girlfriend, despite the contact that was quite evident to others between the two of them. They even continued to spend time in each other's apartment, and each had keys to each other's apartment. They shared the dogs.

She described the laundry room incident that took place on August 20th or 21st, 2012. Apparently he had shown up earlier that day at her work. She had seen him in the park with the two dogs. Then when she returned from work late in the day, he had accosted her in the laundry room with the two dogs and a butcher knife that he had taken from her kitchen. He held the knife to her side, and forced her upstairs. At one time, she said she took the knife from him during this incident and returned it to the block in the kitchen, despite her fear for her safety. He then took it again and threatened her. In the end, he agreed to leave, but before doing so he broke the phone. However, he did leave the knife behind once he left.

She called 9-1-1 a short time later. That resulted in the police arriving and her giving her audio statement.

She then described the August 8th 9-1-1 call, and the contact with the police.

She testified that between August 8th and August 21st, he was constantly texting her. She did not initiate any contact. She felt scared and in danger. He was threatening to commit suicide, kill the dogs, hurt her. Then she mentioned the Peace Bond application.

Next, she referred to an earlier knife incident that occurred in early December 2012. (sic) She then testified about the missing person incident. At the end of that incident, the police took her keys from the accused, but she gave them back to him the next day. Contact between the two of them continued.

She next described the knife incident that occurred earlier in the summer of 2012. Details of that incident, including putting her butcher knife to his throat, threatening to kill himself, covering her mouth with his hand, pushing her to the couch, placing a pillow over her face, cutting off her breath and creating for her a feeling that she was going to die. He then forced her from her apartment with a knife at her side to go to his apartment. She mentioned something about a security video camera, but that the knife could not be seen, as he had hidden it in his pants. Once in his apartment, he went to the balcony and threatened to jump off.

At the same time, she testified that often times, over a period of several months, he had taken the knife, held it to his throat, and threatened to kill himself.

She testified that after Christmas 2011to August 2012, she wanted no contact with him, despite the continued contact.

Under cross-examination, she repeated time and time again that from early January 2012 to August 2012 she was scared for her own safety due to his increasing violent nature and threats to kill himself and her. Several times he produced a knife. She also insisted that by June 2011, she no longer considered that they were in a boyfriend and girlfriend relationship. She was forced, according to her, to maintain contact by phone and texting. She was forced to continue seeing him, sharing apartments, visiting her family, attending numerous events, special occasions, taking him to Slovakia. Despite her experience in travelling the world, and having a PhD in philosophy and languages, she feared telling the police about the threatening behaviour. Despite all the texting, she felt that this was not evidence of his constantly contacting her. She was afraid the police would not believe her, and then she would be in even more danger.

He also agreed under cross-examination that after the July 2012 incident, wherein he forced her to go to his apartment at knife-point, she ended up spending the evening and going to sleep together at his apartment.

She agreed that she did not provide many of the details to the police pertaining to the defendant, as she did not realize that for a long period of time she was being abused, and that it was she, not he, who was the victim.

She testified that she was totally under his control for many months prior to August 2012, despite the constant contact. (pp. 38-42)

When all is said and done, as I indicated above, what this case comes down to is the testimony of the two main parties, the complainant Sedonia and the defendant Sean.

In coming to a decision in this matter, I do not engage in the exercise of balancing one version against the other. It is not a case of deciding which version I prefer. It is the Crown that bears the burden of proving its case beyond a reasonable doubt. (p. 43)

There are no witnesses to either of the two knife incidents. There is no independent corroborative evidence to support the complainant’s allegations. It comes down to a classic “she said/he said” in a domestic setting. On the one hand, one would obviously ask oneself, why would she lie? What is the possible motivation? If no plausible motive exists, does one have to accept her version as the truth? (p. 45)

Having observed the complainant testify, and having reviewed her testimony, I find that her version as to what occurred with respect to the two incidents as somewhat problematic overall. I found her testimony to be disjointed, rambling, confusing, fragmented. Often times her testimony was difficult to follow, despite her demeanour. The period of time that she covered did not follow a chronological order. Her description of various incidents, including the two knife incidents, range from slightly improbable to highly improbable. On the one hand, she seemed to be describing what appeared to be a normal relationship with ups and downs, while at the same time suggesting it was a relationship punctuated with controlling, abusive, frightening conduct on his part. Over a period of time, there were several contacts with the police, but she, when asked, stated she had no concern for her safety, nor did she mention the countless number of times he picked up a knife and threatened to kill himself, and, to a lesser extent, her. Contact with the police lacked the details that she subsequently testified to in court. She spent a great deal of time with him, and also a great deal of time without him.

Taken in isolation, the inconsistencies, improbability of some of her conduct, failure to disclose to the police, etc., could perhaps be explained and accepted, but when all added together, both her reliability and credibility is thrown into doubt. To my mind, it defies common sense and logic that the two knife incidents could have occurred in the manner she describes. With the access he had to her apartment, and the opportunity he had, why would he, in such a public manner, hold a butcher knife to her?

After the first incident, she stays at his place overnight. Supposedly, she takes the knife from him, and what does she do with it, but she puts it back in the block. She tells the police he has no weapons. She is constantly alone with him in her apartment or his. She stays in his apartment when he is away. She pays for his ticket to Slovakia. They shared the dogs. He goes to Columbia alone without her. She reimburses him for the ticket.

I simply do not believe her when it comes to her testimony about the two knife incidents.

The allegations pertaining to the count of harassment are also somewhat problematic. The allegation is that Mr. Waddell repeatedly communicated with her from January 1st, 2012 to August 21st, 2012. This communication caused her to fear for her safety. The communications complained of include phone calls, text messages, personal contact. (pp. 46-48)

In the face of his denials, and having concluded that her testimony is problematic in so many ways, I find that it would be unsafe to convict the accused on the evidence adduced by the Crown at this trial. I find that the Crown has not proven beyond a reasonable doubt that Mr. Waddell used the knife as alleged by Ms. Kempova, nor did he harass her as alleged. He is therefore acquitted of all 7 charges. (p. 49)

ANALYSIS

[12] The trial judge referred to R. v. D.S.F., which was a jury trial where the accused was charged with sexually assaulting his wife. The crown was permitted to call an expert witness related to the “battered women’s syndrome”. That evidence was admitted for the limited purpose of assisting the jury in evaluating the complainant’s explanation as to why, following some of the alleged incidents of abuse, she did not immediately leave the relationship and accurately report the abuse. On appeal, the court was referred to a prior decision of the court in R. v. D.D.. In that case, the court held that expert evidence explaining the delayed disclosure by a child sexual abuse victim was not necessary to assist a jury and should not have been admitted. The court in D.S.F. disposed of the issue as follows at pages 15 and 18:

Although I am inclined to think that the expert evidence admitted in this case would come within the normal experience of many jurors, I am not prepared to interfere with the decision to admit the evidence on this basis. The trial judge was obviously alive to the requirements set out in Mohan. She carefully reviewed the proposed evidence, the purpose for which it was being tendered and reached a considered judgment that it was admissible. I am unable to conclude that she erred in doing so. In my view, this ground of appeal therefore fails.

[13] The admissibility of such expert evidence was subsequently addressed when D.D. was decided in the Supreme Court at 2000 SCC 43. Justice Major for the majority ruled that such expert evidence failed to meet the necessity requirement identified in R. v. Mohan, [1994] 2 S.C.R. 9 (at para. 45) and indicated the following at paras. 63 and 65:

63 The significance of the complainant’s failure to make a timely complaint must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse: R. v. M. (P.S.) (1992), 77 C.C.C. (3d) 402 (Ont. C.A.), at pp.408-9; R. v. T.E.M. (1996), 187 A.R. 273 (C.A.).

65 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 a 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 delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

[14] The trial judge in the matter before me did not refer to the principles set out in D.D. By referring to D.S.F. and the absence of expert evidence, he appears to be saying that the crown has failed to call evidence that should have been called to explain how victims of domestic abuse may react. The Supreme Court in D.D. has made clear that a trier of fact, judge or jury, does not require such expert testimony in assessing the impact of delayed disclosure or continuing contact by the complainant with the alleged abuser.

[15] The trial judge was entitled to reject the complainant’s evidence in whole or in part based on inconsistencies and/or falsehoods. The court referred to her evidence as “illogical” in certain important aspects. That included delayed disclosure of serious alleged incidents and her continuing to spend time with the respondent after such incidents. It is unclear to what extent the trial judge considered the absence of expert evidence in assessing the reliability and credibility of the complainant. It is clear he felt he had not been provided with an essential evidentiary tool to properly assess her conduct after the alleged incidents.

[16] The trial judge did refer to the explanations offered by the complainant related to delayed disclosure and continuing contact with the respondent. His prominent reference to the lack of expert evidence to explain such conduct clearly had a negative impact on his assessment of her evidence. In a case referred to by the trial judge as “she said, he said” on the critical events, his assessment of her reliability and credibility was flawed by his reference to the absence of expert testimony. This error requires that the appeal be allowed.

[17] The second ground of appeal relates to the sole count of criminal harassment. The crown submits there were errors related to proof of the mens rea for that offence. The trial judge dismissed that count in part based on his rejection of the complainant’s evidence. Since I have found that there was a flawed analysis of the complainant’s evidence, it is unnecessary to address the further grounds related to that count.

[18] The third ground of appeal (misapprehension of evidence and insufficient reasons) relates significantly to the evidence of the complainant. It is unnecessary on this appeal to address those issues based on my ruling on the expert evidence issue.

[19] RESULT: Appeal allowed. A new trial is ordered before a different judge of the Ontario Court of Justice.

B.P. O’Marra J. Released: August 5, 2016