R. v Thurston, 2016 ONSC 5157

Court File and Parties

COURT FILE NO.: 12-81 DATE: 2016/09/06

ONTARIO SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE (WITNESSES OR COMPLAINANT) IS PROHIBITED FROM PUBLICATION BY ANY METHOD PURSUANT TO AN ORDER UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

BETWEEN:

HER MAJESTY THE QUEEN – and – SAWATIS THURSTON

Counsel: Elaine Evans, counsel for the Crown Robert Miller, counsel for the Applicant

HEARD: Oral submissions on June 8, 2016

Reasons for Judgment

LALIBERTÉ, J.:

Introduction

1The accused, Sawatis Thurston, is charged with sexual assault and unlawful confinement. The complainant is S.D.

2The incident is alleged to have taken place on February 4, 2012 at the City of Cornwall.

3The essence of the allegations is that the accused would have invited the complainant to his apartment on the pretence of wanting to give her a set of headphones. She was then subjected to full intercourse, against her will, in his bedroom.

4Mr. Thurston testified and denied the allegations. His evidence is to the effect that Ms. D. never attended his home on February 4, 2012. He was at his mother’s residence in the Province of Quebec. So that he puts forth an alibi defence.

5Ultimately, the Court’s decision revolves around issues of reliability and credibility.

6The core question is whether the Crown has proven each of the essential elements of the offences charged beyond a reasonable doubt.

The Evidence

[7] The Crown called the following witnesses: − The complainant S.D.; − Her father R.D.; − Her friend M.L.; − Child Protection Worker, Stephanie Powis; − The evidence of the complainant’s counsellor, Natalie Lamarche was admitted.

8On consent, a transcript of Justice Hackland’s factual findings in his October 28, 2005 decision was filed as the evidentiary record for the other discreditable conduct. On May 11, 2016, the Court ruled that this evidence was admissible as “other discreditable conduct”.

[9] The defence relies on the following two witnesses: − The accused Sawatis Thurston; − His mother Beatrice Mora.

10The Court will now review the evidence.

S.D.

11Ms. D. was 19 when she testified in this trial.

12Back in February 2012, she was living in a foster home in Chesterville and would visit her father every 2 weeks in Cornwall.

13She describes being friends with M.L. They are still friends.

14She testifies having met the accused through M.L. The accused is M.L.’s cousin.

15Prior to the alleged incident of February 4, 2012, she had known the accused for a month and a half. She didn’t know his age then. He seemed to be a nice person. She saw him as a friend. She explains that she was struggling for friends at that time. It was her impression that he just wanted to be friends. She would have seen him a few times after the initial meeting.

16S.D. describes an incident when he tried to kiss her once. This was at the mall. She is not sure how it happened. He kissed her on the lips. Her ex-boyfriend was around. She states “I was shocked”. It was a quick kiss. She didn’t want anything more than friendship. She doesn’t think that she said anything following this kiss.

17Her evidence is that the only place she would see him was at the mall.

18In regards to the events of February 4, 2012, she was spending the weekend at her father’s. He asked her to go to Shopper’s Drug Mart to get a money order to pay his rent.

19She was driven to the mall by her grandmother.

[20] She describes her encounter with the accused on that date as follows: − She was listening to music on her MP3 device; − The accused would have tapped her on the shoulder; − She notes that her headphones were not working properly.

21They started to walk together. She thinks it was around 4:00 p.m. They talked about her headphones. He would have told her that he had an extra pair and he wanted to give same to her.

22She thought that it was generous and kind of him. She didn’t have any money to purchase a pair as she received $80 per month from CAS.

23They went to his place. They walked up the stairs and both got inside. She was in the kitchen alone with him in the home. She stayed in the kitchen and took off her coat because she gets sick when she is too warm. She was standing at the door. The accused had gone to the bedroom.

24Some 5 to 10 minutes later, she went to the bedroom to sit down. She testified having injured her knee and needed to sit down.

25She sat at the corner of the bed which she describes as a double or Queen size. He gave her the headphones.

26She reports that he then sat next to her. She can’t recall if anything was said nor if they spoke.

27S. D. explains that the accused laid down, grabbed her by the waist and had her lay next to him. She got a little scared and nervous.

28She states that she told him that she needed to go home…”her dad gets worried”. He didn’t let go. He was taller and bigger than her. She tried to fight and push him. She kept arching her body. She couldn’t use her hand. Her back was facing him. She was on her side. He was holding her around the waist. She kept repeating “I have to go home”.

29At this point in her evidence, she states having a memory blank and wishes to refresh her memory with her statement.

30Once having reviewed her statement during a recess, she explains having turned her head and he would have kissed her on the lips. She didn’t want him to kiss her.

31He would have then removed his pants.

32She states that he took her hand and placed same down his pants to play with his penis. She used the word “dick”.

33The second time he did this, he was able to place her hand on his penis. He had boxer shorts on. She was trying to pull away and kept saying “I have to go”.

34She felt his penis. She touched it in his underwear. He did not have an erection. She didn’t want to do it.

35He then tried to get in her pants and she curled up in a ball. She had skinny jeans on.

36She states that she was “speechless”…it was as if history was repeating itself.

37Her evidence is “I just gave up…I stopped fighting…I gave him what he wanted”.

38She ended up on her back once she uncurled. He removed his jeans and took off her jeans and underwear.

39She described that she was terrified. She closed her eyes. He got on top of her and tried to put his penis in her vagina which he couldn’t do because she is a “tight person”.

40He then would have performed oral sex on her which made her wet. He got on top of her, placed his penis in her vagina and had intercourse. He ejaculated. She was on the pill meaning birth control pills.

41She states that she didn’t touch him in any way. She didn’t want to do this.

42Following this, she grabbed her clothes and went to the kitchen. She laid against the washing machine. He put his hands beside her and tried to kiss her. She pulled her head away and he let her go. He told her “don’t go…please stay…” He asked her if she wanted to marry him and have kids.

43She estimates having been in the accused’s apartment for an hour and a half.

44She felt guilty as she could have prevented this if she hadn’t gone to his apartment. She “felt ashamed…guilty…afraid…she didn’t know what to do”.

45He would have asked her not to tell anyone. This was their “little secret”.

46She walked for 45 minutes and went to her father’s. She lied to him. She told him she had ran into an old friend.

47She ultimately told her counsellor Natalie Lamarche. She needed to deal with it and stop running from it. She then told Child Protection Worker Stephanie Powis.

48She describes feeling better after she told Natalie. She was glad. Before disclosing “she was falling apart…she was a mess…she was locking herself in her bedroom. She was pulling away from everybody. She needed to deal with it”.

49She hadn’t told her friend M.L. before disclosing to Natalie. She is unsure as to when she did tell her but it was through Facebook. This was after she had told Natalie.

50She didn’t see Mr. Thurston following the alleged incident.

51She did however communicate with him through Facebook. This was from February 9, 2012 to February 15, 2012. She states that he got in touch with her. She doesn’t know why she kept in touch with him. He was offering to buy her a cell phone. She accepted but never got the phone.

52Exhibit #1 comprises of 3 pages of Facebook communications.

53Exhibit #2 is a Canada Post receipt dated February 4, 2012 for $590 money order. R.D. is noted as the sender and Cornwall Housing as the payee. This would confirm S.D.’s evidence that she attended the Cornwall Square to get a money order for her father’s rent.

54In cross-examination, she doesn’t agree that this would have happened on February 8, 2012.

55There was no talk before concerning the cell phone. She was shocked when he told her he would get her a phone. Part of her didn’t want it. It bugged her but it was something she had always wanted.

56She is then questioned in regards to the Facebook messages.

57She is asked to explain a number of comments made by her on Facebook.

[58] On February 10, 2012, she wrote: “sweet thanx babe, you are the best…” She explains, “I don’t know why I said that…I was just going with it…to get him off my back…”

[59] As for the use of the word “Babe”, she states: “…I don’t know why I did that…I guess I didn’t know what to do….Now I know it was wrong…I was scared…I didn’t know what to do…” The suggestion is made that she didn’t have to reply…her response was: “I didn’t thought about that.”

[60] When asked to explain the words “love you to” she states: “I was afraid – don’t know how to explain what I was thinking…”

61She testifies that she wanted a cell phone…she didn’t get it. She blocked him.

[62] Counsel notes the following messages written by S.D. on February 13, 2012: “Miss you too” “Hon”…”love you” “XOOXO…hugs and kisses” “GRRRR”…She states having written this because she was constantly lying…she didn’t want to talk to him. She was frustrated and wanted it to end.”

63She states that she wanted the truth out. She was hiding his secret and she wasn’t telling anyone.

64She is unsure how the accused knew she was on Facebook. There were no Facebook communications prior to the alleged incident.

65She is cross-examined on her evidence given during discoveries on this question. At page 6 of the discovery transcript she answered that they had communicated through Facebook prior to the incident.

66Her evidence at trial is that she doesn’t remember any communications before only after the incident.

67When asked how she got to the mall on February 4, 2012, she states that her grandmother had driven her. She is unsure of the time in the afternoon.

68After getting the money order, she went to the washroom, drank water and went to leave.

69This was a Saturday. There was very light snow. The music was playing. She didn’t know the accused was around. He tapped her on the shoulder.

70Her evidence is that M.L. never told her that the accused had an interest in her.

71She doesn’t recall any discussion other than “Hi”. They walked together. She brought up the subject of the headphones. He offered a pair.

72She thinks he had his bicycle but she is uncertain.

73She told him she needed headphones. He stated he had a pair. She was grateful and surprised.

74There was no talk of sexual activity on the way to his apartment. All she remembers is talking about the headphones. It was still light outside.

75She had never gone to his apartment before. Once there, they went up the stairs. There are approximately 10 steps. His apartment is on the second floor. She had problems getting up the stairs because of her leg.

76Once inside, she stayed near the kitchen door. Mr. Thurston went to the bedroom. She started to get warm. She went to his bedroom to sit on the bed. He was looking for the headphones. He didn’t talk about the cell phone.

77She was there some 15-20 minutes before he gave her the headphones. She doesn’t think that she tried them on.

78She is shown a diagram which was prepared by Mr. Thurston. She just remembered one bedroom. The washing machine is in the kitchen near the door. This diagram was filed as Exhibit “A”.

79She describes that he gave her the headphones which she placed in her pocket.

80She was about to get up when he grabbed her by the waist. He never told her to leave.

81She is certain that the bed is not a single bed. It is either a “Double or Queen size.”

82She denies having made a move on him. He never told her to go away. He would have kissed her a couple of times. She states that she turned her head cause her neck was sore and then he kissed her.

83The real sexual activity started some 20-30 minutes later.

84Once she gave up, he removed his pants and boxers. Before she closed her eyes, she had a brief look and realized he was undressing. She didn’t run when he was up removing his pants.

85He got on top of her. She felt like she was being crushed. She was suffocating. She just laid there because she didn’t know what to do. She doesn’t recall trying to help him put his penis inside of her. He did try to force her to help him put his penis in her.

86She didn’t think of kicking him. He was resting on his hands on top of her. He was able to put his penis in her. She didn’t lift her legs.

[87] She is questioned on her following answers given at discoveries at page 61 of the transcript: Q. Before – just before the act of intercourse, you did touch his penis, right? A. Yes. Q. You helped him, right? A. Yes.

88She then states that his penis was in her for 15 minutes. She was at the bottom. He was on his hands. He then supported himself on his shoulders.

89The accused never told her to leave. She denies having come on to him. Nor did she touch him without his consent.

R.D.

90R.D. is the complainant’s father. He explains that his daughter was in foster care at that time. She would visit him.

91On February 4, 2012, S.D. went to Shopper’s Drug Mart for him. He gave her money. She left at 1:00 p.m. She was on a bicycle.

92She returned home much later at 6:00 p.m. He noted that she wasn’t her happy self when she got home.

93He recognizes Exhibit #2 as the receipt for the money order.

94He explains that S.D. kept buying headphones at the Dollar Store.

95In cross-examination, he confirms that S.D. was residing in foster care in Chesterville.

96He gave her money on February 4, 2012 to cover the money order for rent. She left at 1:00-1:30 p.m. on her bicycle.

97R.D. is somewhat confused on whether S.D. had been driven by her grandmother or rode her bicycle. He remembers one time when she had been driven by her to go to Shopper’s Drug Mart. He is unsure if this was on February 4, 2012. He explains that this has been a very long time ago.

98Counsel notes that he had stated that S.D. had used her bicycle in his March 23, 2012 statement to the police. He then states “then yes, that day she took a bicycle” and she wasn’t driven by her grandmother.

99He remembers that it was a nice and sunny day.

100R.D. explains that headphones were always an issue for S.D. When he packed some of her belongings he would find three pairs that didn’t work.

M. L.

101M.L. was born on June 25, 1992.

102She describes herself as a close friend to S.D. They would go to the mall.

103The accused is her cousin. She wouldn’t spend time with him.

104She is the one who introduced S.D. to Mr. Thurston at the mall. She is unable to remember if this occurred before or after Christmas in 2011/2012.

105M.L. testifies that Mr. Thurston told her S.D. was cute. She doesn’t remember if S.D. was present when he said this. Nor does she know what he meant by these words. He didn’t ask any questions about S.D. She thinks he may have asked her for S.D.’s phone number but can’t remember if she gave it to him.

106She thinks he may have been interested in S.D. This is based on how he kept looking at her.

107She can’t remember whether S.D. told her she was interested in Mr. Thurston. She may have told S.D. that she believed he was interested in her.

108M.L. states that she thinks they might have dated. She describes having seen them holding hands at the mall.

109When asked if she had seen Mr. Thurston do anything physical to S.D., she states “…I think he did kiss her, I think.” He would have kissed her on the lips. She is not sure what S.D. did when kissed by the accused.

110Finally, she describes being with S.D. at the mall when she saw the accused after being told by her that something bad had taken place with him. She describes S.D. as going the other way, being upset, shaking and crying.

Natalie Lamarche

111Ms. Lamarche’s evidence was admitted.

112I understand that she was the complainant’s counsellor at that time.

113The admitted evidence is that on February 29, 2012, S.D. attended a counselling meeting at the Children’s Treatment Centre.

114At that time, the first disclosure was made by the complainant to Natalie Lamarche.

115As a result, Ms. Lamarche contacted the Children’s Aid Society.

Stephanie Powis

116Ms. Powis is a Protection Worker with CAS. S.D. is her client since June 2008. She was a Crown ward.

117During the period of the alleged offence, CAS was attempting to re-integrate S.D. and her brother with their father. She had access to him every second weekend.

118The complainant was residing in Chesterville.

119She confirms that on February 29, 2012, she received information from Natalie Lamarche. As a result, she attended the Children’s Treatment Centre and picked up S.D. The police were then contacted that same day.

120Prior to the police arrival, they looked at Facebook. S.D. was trying to locate the accused’s name. Initially, she couldn’t remember his name off the top of her head.

121In cross-examination, Ms. Powis doesn’t recall S.D. talking about headphones and a cell phone to her directly. She does recall her talking about these during her police interview.

Other Discreditable Conduct

122The Crown relies on evidence of other discreditable conduct which was found to be admissible by the Court. The Court’s reasoning is set out in the May 11, 2016 ruling.

123The parties agreed that the evidentiary record for this extrinsic evidence is the transcript of Justice Hackland’s factual findings in his October 28, 2005 decision when he convicted Mr. Thurston of sexual assault against S.L..

[124] The relevant facts are as follows:

• Justice Hackland notes that 36-year-old complainant S.L. is significantly intellectually impaired;
• On September 9, 2003, she passed the accused, who she knew from school, while walking to a friend’s house. He told her that he had a book bag and a flashlight that he did not need and wished to give to her for her husband. The accused later attended her home and advised the complainant and her husband that he could bring the items over or they could come to his home;
• The complainant later attended the accused’s home. He was outside at the back. She asked him to get the items. She said no when he asked her to go up to his apartment with him. He then grabbed her left wrist and forced her up the stairs;
• She refused to enter the apartment, but he grabbed her by the wrist and pulled her into the apartment;
• Ms. S.L. sat at the kitchen table and then went to the bathroom while the accused was looking for the items. Once she exited the bathroom, he grabbed her wrist and pushed her into his bedroom and onto his bed;
• He asked her to have sex and she said no. He tried to coax her, but she refused stating that her back hurt and she was married;
• Mr. Thurston then laid on top of her or at least had his legs on top of her. She pushed him off by placing the palm of her hands on his stomach. He pulled his pants and underwear down and she saw his penis. He pulled her up by her wrists and laid on top of her a second time. He touched his penis to her leg. Her vagina was not touched. He repeated that sex would only take five minutes. She was able to pull her pants up and shove him off her;
• He blocked the bedroom door as she tried to leave and she was able to shove past him and went to the kitchen. She went to the bathroom. As she attempted to leave the apartment by opening the outside door, he pulled it shut. He then let her go. He gave her the bag and flashlight.

Accused’s Statement to the Police

125On March 27, 2012, Mr. Thurston provided a statement to the police following his arrest.

[126] The Court was initially asked to rule as to the admissibility of this statement on two distinct basis, namely: − Voluntariness; − Section 10(b) of the Charter.

127Following the Voir Dire, the Court was advised by defence counsel that the accused was not pursuing the argument in regards to the voluntariness of the statement given to a person in authority.

128However, he did maintain his position that his 10(b) Charter rights to counsel were breached by the authorities.

129On May 27, 2016, the Court dismissed the Charter Application and ruled that the accused’s said rights had not been infringed. The statement was therefore admissible.

130The March 27, 2012 statement was not made part of the prosecution’s case but was used by Crown counsel in cross-examining Mr. Thurston.

Sawatis Thurston

131Mr. Thurston testified in his defence. The essence of his evidence is an alibi.

132He states that he knows the complainant from the street. He met her at the Cornwall Square Mall. He only met her three (3) times.

133She was just a friend. They were not in a boyfriend-girlfriend relationship.

134He denies that she was ever at his house.

135He gave her headphones while at the mall. It was given as a friend.

136His evidence is that he was not in Cornwall on February 4, 2012. He was in the Province of Quebec at his mother’s in Ormstown which is 1 hour and 45 minutes away from Cornwall by car.

137He left Cornwall on February 3, 2012 at 7:30 a.m. for Ormstown. He returned on February 7 at around 9:00 p.m.

138The purpose of him going to Ormstown was to take care of his step-father’s business as he was ill.

139Mr. Thurston describes leaving on his bicycle to go there.

140He spent time with his mother. He stayed with her. She was living in Ormstown at the time.

141He states that he never touched the complainant.

142What he told the police on March 27, 2012 was not the truth. He was pressured by the officer. He states having a detachment disorder. He has ADHD and a psychological disorder.

143He didn’t tell the truth. His natural reaction was to tell them what they wanted to hear. He felt pressured.

144When asked by his counsel why he hadn’t told the police that he was away from Cornwall at the relevant time, he explains that he wasn’t in his right state of mind. He was on medication. This made him tired.

145In cross-examination, he states that he drove his bicycle to his mother’s home. He took Highway 2 which was icy as this was during winter. It was cold and snowy.

146He was not driven by a friend. He met a guy at the Valleyfield bridge as he was not allowed on a bicycle on the bridge.

147He explains that he had an Alaskan timber wolf back then. He initially stated that her name was Baby and was given to him on January 1, 2012 as a gift from his mother.

148He then corrects himself and states that he had two dogs then. Baby was given to him by his mother on February 1, 2012. He states that Baby is a Husky and not a wolf. He would have gotten the wolf on January 1, 2012. His godmother cared for his dog while away in February 2012. His neighbour also took care of his dog.

149He testifies that on February 4, 2012, he went to help his step-father to pay his bills. He used a banking machine. They watched movies.

150He went to visit his step-father at the hospital. He also visited his cousin Lois Manning who lives upstairs from his mother.

151On February 5th, which was a Monday, he attended scheduled doctor appointments with his mother.

152February 6th was his mother’s birthday.

153He is questioned in regards to the content of the Facebook messages which were marked as Exhibit #1 in the trial.

154He states that he can’t read. He just types “whatever”. He has no interest in the complainant. He is assisted by a device when he uses Facebook.

[155] Specifically, he provides the following explanations for some of his Facebook comments: − “I’m going to buy you a cell”

• She asked him for a cell
• He told her she would have to pay it back − “I love you”
• he meant as a friend − “When are you coming over to my place”
• this was a “mistype”
• he can’t let anyone in his apartment because his dog will attack if someone comes close to him; his dog doesn’t like females

156Mr. Thurston is also cross-examined on the content of his March 27, 2012 statement to the police.

157He explains that he was just upset. He was pushed by the officer. He wasn’t in a right state of mind. When pushed, he tells people what they want to hear.

[158] Crown counsel points to the following parts of his said statement:

• page 5 : - the complainant initiated all
• he pushed her away
• he pushed her and said he wasn’t interested
• after she kissed him, he pushed her and left.
• page 7 : - the complainant stated she wanted him
• she kept grabbing and pulling on his belt
• page 9 : - it wasn’t consensual from his part
• she came to his room
• page 10: - she was out in the kitchen
• just played with each other
• she was “dry”
• page 21: - the only time he mentions his mother
• no mention of him being away at his mother’s during the relevant period of time
• page 24: - he describes his neighbour Shawn McPherson being able to confirm that he left with the complainant; he knows he saw him leave with her

159He is challenged by Crown counsel on the details he provided the officer and how it is similar to the allegations made by the complainant with whom he had never discussed this.

[160] The accused maintains the following: − He was pressured by the police; − The complainant never attended his home; − He never had sex with her.

161It is also noted to Mr. Thurston that the complainant was able to describe the inside of his apartment through Exhibit 6 which had been shown to her by defence counsel during cross-examination.

162In regards to S.L. and the other discreditable conduct, he denies that she was ever in his apartment. He states that he did not have a bed then. Nothing happened with S.L..

163He rejects the suggestion that he did the same thing to S.D.

Beatrice Mora

164Ms. Mora is the accused’s mother.

165She testifies that he was with her and his dying step-father in Ormstown, Quebec from the 3rd to the 7th of February in 2012.

166She recalls that it was her birthday on the 6th of February.

167Her evidence is that someone had driven him down on February 3rd. He had his bicycle with him.

[168] She describes the following activities with the accused: − They went to five (5) separate hospitals; − They visited her mother who lived across the road; − They ate meals together; − They watched movies; − He helped her clear her house as she had two (2) strokes; − They were at the Chateauguay Hospital on February 4, 2012.

169Ms. Mora explains that she knows what her son is charged with but it is a lie. It is impossible that he was in Cornwall on February 4th, 2012. He couldn’t get back since his ride was from Cornwall.

170The witness is cross-examined on prior statements she had provided to the police on June 12, 2012 and November 2, 2015.

171Her evidence is that they were driven to the hospital by her cousin Lois Manning. In her November 2, 2015 statement she had stated that Dale Lefebvre was driving. She explains that Lois had driven her to one appointment.

172She is questioned on whether the accused had brought a dog with him. In her June 12, 2012 statement, she had stated that he came to her house with a dog. On November 5, 2015, she stated that he had not brought a dog.

173Her evidence is that she had bought a dog named Baby. Her son had not brought a dog.

174When reminded that February 5, 2012 was a Sunday, and that doctors would not set appointments on Sundays, she explains that doctors set appointments on Sundays in the Province of Quebec.

175She also alleges that the complainant S.D. would have called her house in February 2012. She states that she kept on calling and she would have told her to stop calling. The accused’s godmother would have told her that the complainant kept following the accused around since December.

176She acknowledges that there are no letters to confirm the medical appointments she testified to.

177Finally, in regards to the other discreditable conduct, her view is that the complainant S.L. was lying. She states that her son did not have a bed in his apartment and that the police had brought one in to frame him.

Position of the Parties

Defence

178Defence counsel submits that this trial is to be decided on the basis of a W.D. analysis. The issues revolve around the credibility and reliability of the witnesses.

179His position is that Mr. Thurston’s alibi defence as verified by his mother’s evidence should raise a reasonable doubt.

180They both testified that he was not in the area at the relevant time. Although there are some discrepancies in their evidence, in the end, they corroborate one another. The Court should accept the alibi defence.

181Counsel fairly concedes that the detailed statement given by the accused to the police is troubling. However, the Court should consider his explanation to the effect that he felt pressured and told the police what they wanted to hear. The Court should conclude that what he told the officer was not true. His trial evidence is to be preferred.

182Counsel suggests that the more significant issue is the alternative defence which is that the complainant is not credible and she in essence concocted these events.

[183] The following points are raised in support of this proposition: − There is no physical evidence to support her allegations; − There was a delay in disclosing which wasn’t adequately explained; − There are contradictions between her evidence at trial and at the discoveries; − Her reasoning in complaining is that she did not get the cell phone as promised by the accused.

[184] Reference is made to parts of her evidence: − Whether she had gone to the mall on her bicycle or had walked; − Her evidence that she was gone for 3-4 hours is contradicted by her father’s evidence that she was away for 4-5 hours; − Other than attending the accused’s home, there is no explanation as to what she did during this period of time; − She voluntarily attended his apartment and entered his bedroom without being invited by him; − She never said no; she only stated that she had to go which opens the door to a defence of honest belief in consent; − There was no screaming or attempting to leave; she could have left at any time; − There were no threats or expression of violence directed at her; − She didn’t resist the removing of her clothing or the act of cunnilingus; she states that she laid there as a statue; − Her admission that she had lied to her father about her whereabouts; − She disclosed a month following the event; − There is some form of motive based on Mr. Thurston not giving her a cell phone as promised; − The Facebook messages sent by her after the event; she used terms of endearment; these are not consistent with abuse; − It is argued that her explanations for same do not make sense; − Her evidence is fraught with uncertainties; for example she didn’t know whether he had driven his bicycle; nor what was on his bed; − Her statement that she believes she assisted the accused in placing his penis in her vagina.

185In regards to the other discreditable conduct, counsel’s position is that the issue is one of weight to be given to such evidence. The Court should be careful in assessing weight.

Crown

186The Crown’s position is that the accused’s guilt has been established beyond a reasonable doubt on both counts.

187It is argued that Mr. Thurston is not believable and that his evidence does not raise a reasonable doubt. Counsel qualifies his evidence as being incredible, illogical and inconsistent.

[188] The following points are raised in regards to the accused’s testimony: − It appears that he is making up evidence; his evidence is described as “bouncing all over the place”; one example being his dog; − He tried to garnish sympathy by telling the Court about his medical issues; the suggestion is that he feigned a heart condition while testifying; he was soon thereafter observed smoking a cigarette outside the Court House; saying that he wasn’t in his right state of mind when he provided the statement to the police; − His suggestion that he was pressured by the officer and told her what she wanted to hear is not credible when one considers that:

• He is standing his ground with the officer;
• He is challenging the officer;
• The officer was asking open ended questions;
• He was clearly not influenced by the officer. − Much of what he told the officer in his statement is similar to the complainant’s version; − The complainant could not have provided a description of his apartment had she not been there as suggested by him; − He never tells the officer that he was at his mother’s residence in the Province of Quebec on February 4, 2012; − He has shown to be inconsistent on a number of factual issues such as:
• Whether the complainant attended his home;
• Not raising an alibi with the officer;
• Different version of when he met the complainant. − His alibi evidence is contradicted by his mother’s version; one example being whether he rode his bicycle or was driven by someone from Cornwall; − The likelihood of appointments with doctors being set on Saturdays and Sundays is questioned by Crown counsel; − His suggestion that he only saw her as a friend and that he expected to be paid for the cell phone is not supported by the contents of his Facebook messages; he is the one who contacted her and offered to buy a phone; she did not initiate these contacts.

189Crown counsel submits that the accused’s mother, Beatrice Mora is not credible. She should not be believed.

[190] Reference is made to the following: − She was very critical of the complainant and her family; − Her claims that the complainant repeatedly called her home in February, that she told her to stop calling and had to change her number is not believable; − There is no independent evidence to confirm the alibi defence; − Her evidence is contradictory; one example is who drove them to the medical appointments; another being that the accused had brought his dog to her home; − Her suggestion that the police framed her son by bringing a bed to his apartment in regards to the S.L. incident is not credible.

191In the end, the Crown’s submission is that both the accused’s and his mother’s evidence should be rejected.

192Crown counsel’s view is that the complainant S.D. is a credible and reliable witness. Her version is consistent and she was not challenged in a material way.

193Counsel notes that S.D. was cross-examined mainly on the question of consent and not that he wasn’t there. The suggestion was that she was the aggressor and that she initiated the sexual encounter. Not that she was making it up. It is argued that failure to cross-examine the complainant on the accused’s version that the incident never occurred offends the rule in Browne v. Dunn (1893), 6 R. 67 (H.L. (Eng.)) and in turn, impacts on the accused’s credibility.

194The complainant is described as having provided a logical, coherent, straightforward and credible account of what transpired between her and the accused.

[195] The evidence of witness M.L. to the effect that she had seen the accused and the complainant holding hands at the mall a couple of times which led her to believe they may have been dating is not seen by Crown counsel as raising concerns with the complainant’s testimony. It is argued that: − S.D. was never questioned on this point; − It does not amount to a contradiction; − M.L.’s evidence is marked by a number of uncertainties; − The fact that she would have held his hand does not imply consent to the sexual act.

[196] The complainant’s version finds support in the following extrinsic evidence: − How she reacted when she saw the accused at the mall following the incident is corroborated by witness M.L.; − Her father’s evidence and the receipt from Shopper’s Drug Mart (Exhibit #2) dated February 4, 2012. − The fact that she wanted headphones as evidenced by her father.

[197] The Crown provides the following responses to the concerns raised by defence counsel: − The fact that she attended the accused’s bedroom is not indicative of consent; her version has a ring of truth; she was warm and removed her coat; she had been waiting for him and wanted to see what he was doing; − While she did not expressly say “no”, this is not required; her words and actions were indicative of no consent and communicated to him; she just gave up; − The placing of his penis in her vagina was made at his demand; she had no choice; it amounts to self-preservation; it does not retroactively provide consent; she was frozen as this brought back memories; she gave him what he wanted; he grabbed her hand and forced her to place his penis in her vagina; − The Facebook messages do not bear on the complainant’s credibility:

• There is no set way on how a victim reacts;
• She is young, living in foster care, frightened, subject of prior trauma in her life;
• She didn’t know what to do;
• He had gotten in touch with her and offered a cell phone; part of her wanted a phone; she had no money;
• She did not initiate contacts with him and subsequently blocks him from Facebook;
• She never responds to his request that they should get together. − The delay in disclosing should not be seen as detracting from her credibility:
• There is a ring of truth to her statement that she couldn’t keep it secret anymore; how she felt a burden had been removed once she told her counsellor; she was glad she had told someone;
• She felt guilty, scared and was told by the accused not to tell anyone.

198The Crown submits that the other discreditable conduct discloses a pattern of conduct which translates in the luring of young vulnerable females to his apartment under false pretences. Specifically, wanting to give them something and then sexually assaulting the victims. This is supportive of actus reus and means rea.

199It is argued that on the whole the complainant’s evidence is credible and reliable. It is capable of grounding convictions.

The Law

200In deciding this matter, the Court will be guided by the following relevant principles:

201Mr. Thurston is charged with sexual assault and unlawful confinement.

[202] The essential elements of these offences can be briefly summarized as follows: − Sexual assault

1. The accused intentionally applied force to the complainant.
2. The complainant did not or could not consent; consent means the voluntary agreement of the complainant to engage in the sexual activity; there is no consent when the complainant expresses by words or conduct, a lack of agreement to engage in the activity.
3. The accused person knew there was no consent or was reckless and/or willfully blind on whether there was consent.
4. A belief in consent is also vitiated if the accused person did not take reasonable steps, in the circumstances known at the time, to ascertain that the complainant was consenting.
5. The contact took place in circumstances of a sexual nature. − Unlawful confinement
6. The accused intentionally confined the complainant; this means to physically restrain the other person contrary to his or her wishes; there must be deprivation of one’s liberty to leave.
7. The confinement must be without lawful authority; the confinement will be lawful if the law allows him or her to deprive the other’s liberty to leave.

[203] Next, I am mindful of the fundamental principles of our criminal law. Specifically: i. The presumption of innocence under which Mr. Thurston is presumed innocent and so remains if and until the Crown proves his guilt; ii. The burden of proving guilt rests solely on the prosecution; there is no burden of proof placed on an accused person; Mr. Thurston does not have to prove anything; iii. The Crown’s burden is to prove each of the essential elements already noted beyond a reasonable doubt; iv. I have instructed myself in regards to the concept of “reasonable doubt” in accordance with the Supreme Court of Canada’s decision in R. v. Lifchus, [1997] 3 S.C.R. 320, namely:

• It is fundamental to the presumption of innocence;
• It is not a doubt which is far-fetched or frivolous;
• It is not based on sympathy or prejudice; it is based on reason and common sense; it is a doubt that logically arises from the evidence or the lack of evidence;
• It is not enough for the Court to believe that an accused is likely or probably guilty;
• However, the Crown is not required to prove guilt on the standard of absolute certainty;
• The Court’s task is to consider all of the evidence and decide whether it is sure that the accused committed the offence; an acquittal must follow if at the end, based on all of the evidence, or the lack of evidence, it is not sure;
• Where reliability and credibility is the ultimate issue, the Court is reminded that the rule of reasonable doubt applies to the assessment of reliability and credibility. v. Since Mr. Thurston has testified in this trial and the outcome revolves around an assessment and appreciation of the credibility and reliability of the witnesses, the proper analytical framework is found in R. v. W.D. (1991) 1 S.C.R. 742:

1. Firstly, if the Court believes the accused person, he must be acquitted;
2. Secondly, if the accused is not believed but his evidence raises a reasonable doubt, then he must be found not guilty;
3. Lastly, even if the Court is not left with a reasonable doubt with the accused’s evidence, the question for the Court becomes whether, based on the evidence that is accepted, it is convinced beyond a reasonable doubt by this evidence, that the accused is guilty.

204In assessing the evidence of the witnesses, the Court must carefully and with an open mind consider all of the evidence. I must decide how much or little to believe and rely upon the testimonies.

205I may believe some, none or all of a witness’ evidence.

206This assessment is an exercise in common sense. There is no magic formula, no crystal ball, no scientific formula to assist the Court.

207The Court is alive to the important distinctions between the concepts of reliability and credibility.

208Credibility relates to a witness’s sincerity and belief that he or she is speaking the truth.

209Reliability relates to accuracy.

210It is possible for a credible witness not to be reliable.

[211] In properly assessing the witnesses in this trial, the Court will consider all of the circumstances including the following: − The witness’s ability to observe; − The ability to recall the relevant events; − How the witness presents in the witness box; this measure does not mean whether the witness appears to tell the truth; it is not based on an “appearance of sincerity” as looks can be deceiving; what it does mean is that having regard to the particulars of the witness, such as age, sophistication and limits, it is proper to consider things such as:

• Whether the witness was argumentative;
• Whether he or she was responsive to the questions;
• Whether the witness was evasive;
• The presence of hesitation in answering;
• The showing of appropriate emotion. − Whether the evidence finds support in extrinsic evidence such as other witnesses, physical evidence or the circumstances; − Whether, to the contrary, the version is contradicted by such extrinsic evidence; − The ability to provide a detailed account of the relevant event; details which are significant; − The presence of an interest in the outcome, a motive, any bias or partiality; the Court is mindful that the question of motive is to be addressed with caution; I am guided by the instructions of the Ontario Court of Appeal in R. v. Batte, [2000] O.J. No. 2184 which are:
• There is no burden on an accused person to demonstrate that a complainant has a motive to fabricate;
• The absence of a demonstrated motive to fabricate doesn’t necessarily mean that there is no motive;
• Nor does the absence of a demonstrated motive to fabricate establishes that the witness is telling the truth. As stated by the Court at paragraph 121: “The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility.” − Whether the witness’s version is internally consistent being mindful that some details may be more significant than others; − Whether the witness’s version is plausible when looked at through the lens of common sense, life experience, logic and/or reason; − Whether the version is unreasonable and/or improbable when considered against the backdrop of facts which are not in dispute.

212The Court ruled that the other discreditable conduct revolving around the events of September 9, 2003 and the victim S.L. was admissible for the reasons articulated in the May 11, 2016 ruling.

213As the judge of the facts in this trial, I must instruct myself as to the proper use of such evidence.

214The Supreme Court of Canada in R. v. A.R.P., [1998] 3 S.C.R. 339, provides guidance on the correct use of such evidence on the ultimate question of guilt or innocence.

[215] The Court states the following at paragraph 72: “Similar fact evidence, on the other hand, as circumstantial evidence, must be characterized differently, since, by its nature, it does not carry the potential to be conclusive of guilt. It is just one item of evidence to be considered as part of the Crown’s overall case. Its probative value lies in its ability to support, through the improbability of coincidence, other inculpatory evidence. As with all circumstantial evidence, the jury will decide what weight to attribute to it.”

216The Court must keep in mind that this extrinsic evidence is relevant for the limited purpose for which it is admitted.

217It must not be used to infer that the accused is a person whose character or disposition is such that he is likely to have committed the offence. Nor should he be convicted because he is a bad person.

[218] In assessing the weight of this evidence, I must do so on a balance of probabilities. This notion is found at paragraph 70 of ARP where the Court states: “…a preliminary finding of fact governing the use of evidence is normally subject to the civil standard of proof…preliminary questions of facts may be decided on a balance of probabilities…”

[219] Finally, at paragraph 66, the Supreme Court explains that: “…Though the similar fact evidence, standing alone, may fall short of proof beyond a reasonable doubt, it can be relied upon to assist in proving another allegation beyond a reasonable doubt. Two separate allegations can support each other to the point of constituting proof beyond a reasonable doubt, even where a reasonable doubt may have existed in relation to each in isolation.”

220In the end, the evidentiary value of other discreditable conduct lies in its “objective improbability of coincidence.”

Discussion

221Applying the W.D. analytical framework, the Court will deal firstly with the evidence of the accused person, Sawatis Thurston.

222Properly articulated, the questions are whether he is believed and if he is not believed, does his evidence raise a reasonable doubt.

223In considering Mr. Thurston’s evidence, the Court is mindful of his personal limitations. He was described by his counsel as not being a very sophisticated individual. That is certainly the Court’s impression.

224However, these limitations and lack of sophistication do not reasonably and objectively account for the significant credibility and reliability issues flowing from his testimony.

225The Court does not believe the accused’s version of events. His alibi defence is rejected by the Court. Nor is the Court left with a reasonable doubt.

226His evidence is found to be internally and externally inconsistent.

227Parts are found to be unreasonable, improbable and contrary to life experience and common sense.

228He was at times argumentative, non-responsive to the questions and evasive during his testimony.

229The Court will now speak to specifics.

230The March 27, 2012 statement given to the investigating officer by the accused is extremely damaging to his sincerity and believability. As fairly stated by defence counsel in his submissions, this statement should be very troubling for the Court.

231When considered in the context of his evidence at trial, it denotes internal inconsistency on significant facts. It is a prior inconsistent statement on the core issues which are before the Court. The end result is that the accused person has provided two (2) distinct and irreconcilable versions of what transpired on February 4, 2012. The first version is that there was a sexual encounter with the complainant at his apartment but she was the aggressor and he did not consent. The second version is that this never happened. He was at his mother’s residence in the Province of Quebec in Ormstown.

232The providing by a witness of different accounts is not supportive of credibility and reliability.

233Mr. Thurston’s attempt at explaining the March 27, 2012 statement is also very concerning to the Court. This point was fully discussed by the Court in its May 27, 2016 written Ruling on the section 10(b) Charter application.

[234] At paragraph 100 of the said Ruling, the Court noted: “[100] The Applicant’s position that he was pressured by Constable Cameron and that he felt intimidated is not consistent with the evidence as shown in the transcript and video filed as exhibits. The Court finds that the Applicant does not appear overwhelmed or intimidated. He challenges the officer, raises his voice and, on occasion, makes demands. Nor is there any support for his suggestion that he told the officer what she wanted to hear.”

235The Court rejects the accused’s assertion that the March 27, 2012 statement was the product of police pressure, psychological disorders and medication. As already noted, this is not supported by an objective review of the evidence adduced during the voir dire and trial.

[236] The Court also notes the following: − The question of the voluntariness of the statement which was initially challenged by defence was subsequently conceded; the voluntariness of a statement to a person in authority revolves around questions of police pressure and operating mind; − At trial, the accused testified that he was on medication at the time of the police interview and that this impacted on him…it made him tired; the presence of medication was not mentioned by him when he testified in the voir dire; − Having observed Mr. Thurston during cross-examination, he did not appear as though he was, even under pressure, telling the Crown what she wanted to hear; he agreed with very little of the suggestions made to him by Crown counsel; he was adamant in his positions; at times, he was argumentative; all of this make it such that his demeanour in the witness box, even under the pressure of cross-examination, is not supportive of his explanation for the March 27, 2012 statement to Detective Constable Sherry Cameron.

237The detailed account provided by Mr. Thurston in his statement is also telling when one considers the complainant’s version.

238The only true distinctions are in regards to the complainant being the aggressor and him not consenting.

[239] The narrative is such that he would not have known the substance of the allegations made by the complainant. Detective Constable Cameron provided him with very little in terms of details. She used open ended questions such as: Q. “And then what happened?” A. “Then she came to my room.” Q. “Okay.” A. “And she kissed me. Then she started feeling me up. I told her no.” Q. “And then what?” A. “She was…she told me she wanted me and so…I kept saying to leave me alone but then one thing led to another. But I didn’t want it.” Q. “But at one point, I mean, you can’t help yourself anymore. You have to sort of give in to the passion, right? Is that what happened?” A. “Yes…so.” Q. “So what happened after that?” A. “(inaudible) dressed.” Q. “One thing led to another, meaning what?” A. “She started feeling me up.” Q. “Okay, what other stuff took place?” A. “Like what ever happened, it did. I’m not gonna lie about it. We did have sex but it wasn’t on my, on my….consent.”

240The striking similarities between the details provided by the accused in his out of Court statement and the complainant’s version, in the context of not knowing what the allegations were, are such that his version is not plausible when looked through the lens of common sense, life experience, logic and/or reason.

241The next significant concern with the accused’s evidence lies in his alibi defence.

[242] Specifically, the concerns are identified as follows: − As already noted, he has provided a prior inconsistent statement; − The complainant S.D. was never cross-examined on the notion that the sexual encounter had never taken place; there was no suggestion that this was a total fabrication on her part; the only suggestion is that this would have occurred on February 8, 2012; the essence of the cross-examination was that she either consented and/or she was the aggressor; this allows for the drawing of an inference against the accused in accordance with the principle set out in Browne v. Dunn (1893), 6 R. 67 (H.L. (Eng.)); − He is contradicted by his own witness, his mother Beatrice Mora, on how he got from Cornwall to Ormstown, Quebec; she is adamant that he was driven back and forth by an individual from Cornwall; the accused testifies that he drove his bicycle; the only ride he got was from an individual who drove him over a bridge as he was not allowed to drive his bicycle over the bridge.

[243] The substance of the accused’s evidence is also contradicted by the following extrinsic evidence: − The contents of the Facebook messages (Exhibit #1) sent by the accused to the complainant are not supportive of his position that he had no interest in her; he is clearly initiating these communications; he is professing his interest in her; he is asking her to come to his home; − His suggestion that the complainant never attended his home is contradicted by her ability to describe the apartment as shown during her evidence both in-chief and cross-examination; his version that she never attended his home is unreasonable and/or improbable when considered against the backdrop of the undisputed fact that she was able to provide a fairly accurate description for same.

244Finally in regards to Mr. Thurston’s testimony, some of the details provided by him are, collectively, found to be troubling. While these details are not impossible, they are, at a minimum, improbable and not consistent with life experience and expectation. The concern lies in their cumulative effect.

[245] The details are as follows: − The fact that he had a timber wolf residing with him in his home which would have attacked the complainant had she attended since it doesn’t like females or people approaching him; this is coupled with some uncertainty as to when he got this wolf and how many dogs he had; − The fact that he drove his bicycle from Cornwall to Ormstown, Quebec on February 3, 2012 while it was cold, icy and snowy; this is coupled with the already noted contradiction with his mother’s evidence; − The fact that he would have attended pre-set scheduled doctor’s appointments with his mother on February 5, 2012 which was on a Sunday; − The fact that he didn’t have a bed at the time of the incident involving the other discreditable conduct and S.L.; this is coupled with his mother’s suggestion that the police had brought in a bed to frame him. − The fact that the Facebook messages are explained on the basis that he can’t read, he uses a device and a “mistype”.

246The end result is that the Court does not believe the accused. His evidence does not raise a reasonable doubt.

247The next question for the Court is whether, based on the evidence that is accepted, the accused’s guilt has been established beyond a reasonable doubt.

248S.D’s father, R.D., is found to be a credible witness.

249There is some confusion on whether S.D. drove her bicycle or was driven by her grand-mother on February 4, 2012. This is not seen as significant.

250What is of some importance in the context of the alibi defence is R.D’s evidence that his daughter did go to the Shopper’s Drug Mart to get a money order for his rent. In turn, this is confirmed by the receipt dated February 4, 2012 which was filed as Exhibit # 2.

[251] He also provides some support on the following: − The significance of headphones for S.D.; − The length of time she was gone; − She was not her “happy self” when she returned.

252M.L. was called as a witness by the Crown. The Court notes that her evidence is marked with uncertainty. The cumulative effect of these is that she is found not to be a reliable witness.

[253] Her significance lies in the following: − Mr. Thurston’s stated interest in the complainant; − They may have been dating; − Mr. Thurston has kissed S.D. − S.D.’s after-the-fact reaction when she saw the accused at the mall.

[254] However, little weight, if any, can be given to her evidence in light of reliability issues which are: − She doesn’t remember if S.D. met the accused before or after Christmas in 2011/2012; − She doesn’t recall if S.D. was present when he stated she was cute; − She states not knowing what he meant by these words; − She is unsure if he asked for S.D.’s number; she can’t remember if she gave it to him; − She can’t remember if S.D. told her she was interested in him; − She thinks they might have dated; she would have seen them hold hands; − She thinks the accused kissed S.D.; she is unsure of what she did in response.

255As already noted, Nathalie Lamarche’s evidence was admitted by both parties.

256Her admitted evidence supports the fact that she was S.D.’s counsellor and the first recipient of the allegations on February 29, 2012.

257This was confirmed by witness Stephanie Powis, a Protection Worker with CAS who has been involved with S.D. since 2008.

258Ms. Powis is the one who contacted the police on February 29, 2012.

259The Court also heard from Mr. Thurston’s mother, Beatrice Mora who was called as a defence witness.

260Ms. Mora is disabled by reason of a stroke. The Court is mindful of her limitations and has weighed same in its assessment of her credibility and reliability.

261The Court finds that little weight, if any, can be given to her evidence.

[262] The following concerns are noted by the Court: − She presents as very argumentative; − She is unresponsive to the questions; − She is contradicted by the accused as to how he travelled to her residence in the province of Quebec on February 3, 2012. − She has provided two prior inconsistent statements as to whether her son had brought a dog with him on February 3, 2012. − Her suggestion that the complainant had repeatedly called her home for her son and was harassing him was never put to S.D. in cross-examination, thus triggering a negative inference per the rule in Browne and Dunn. − Her suggestion that the police had framed her son by introducing a bed in his home in the S.L. incident is unreasonable at best.

263The Court will now deal with the complainant’s evidence.

264There is no question that the Court has concerns with parts of S.D.’s evidence. These were raised with counsel during submissions.

265Having considered all of the circumstances, the Court finds that notwithstanding these concerns, S.D. is a credible and reliable witness. Her version of what transpired between her and the accused on February 4, 2012 in his apartment is believed beyond a reasonable doubt.

266The Court is sure that Mr. Thurston sexually assaulted and confined S.D. as described by her.

267Her evidence provides the Court with the near certainty required to base convictions.

268The Court’s belief is reinforced by the evidence of the other discreditable conduct. The findings of Justice Hackland in regards to the accused’s actions towards S.L. are seen as strong circumstantial evidence which supports S.D.’s testimony.

[269] In arriving at its conclusion in regards to the sincerity and reliability of S.D.’s evidence, the Court has considered the following: − She provided a detailed and comprehensive account of the incident; compelling examples of this include:

• Her description of the accused’s apartment;
• How he grabbed her and had her lay next to him;
• Her back was facing him; she was on her side; he was holding her around the waist;
• She kept repeating “I have to go home.”;
• He removed his pants and took her hand and placed same on his penis; he did not have an erection;
• He ultimately removed her jeans and underwear;
• He performed oral sex on her as she was too tight;
• He ejaculated;
• She laid against the washing machine, he put his hands beside her and tried to kiss her; he told her “don’t go…please stay”; he asked her if she wanted to marry him and have kids;
• He asked her not to tell anyone as this was their “little secret”. − She is able to provide insight on how she felt; for example:
• She was speechless and felt like history was repeating itself;
• She just gave up;
• She was terrified; she closed her eyes;
• She felt guilty as she could have prevented this had she not attended his apartment;
• She felt ashamed, guilty and afraid; she didn’t know what to do;
• Prior to telling her counsellor, she was falling apart…she was a mess…locking herself in her bedroom…she was pulling away from everybody. − On the whole, she is found to have provided a consistent account of the relevant facts; the following points raised by defence counsel are not seen as significant:
• Whether she had gone to the mall on her bicycle or had walked;
• The question of whether she had placed his penis in her vagina; at trial, she explained that “…he had tried to force me to put it in me, but I pulled my hand away…;” later she explains “…I think cause he forced me to do it…cause he grabbed my hand and he said – I don’t remember what he said but he grabbed my hand and put it down there because he was trying to get me to help him, but I just pulled my hand away” - ; the Court notes that the questions and answers during the discoveries which are said to contradict the complainant’s evidence at trial were brief; it is as follows: Q. “Before – just before the act of intercourse, you did touch his penis, right?” A. “Yes.” Q. “You helped him, right?” A. “Yes.” This is not seen as being contrary to her trial evidence; her evidence is that she touched him as he forced her to help him. − The complainant’s evidence finds support in the following extrinsic evidence:
• Her father’s evidence that she had gone to get a money order for him to pay his rent on February 4, 2012;
• The receipt for the money order dated February 4, 2012 filed as exhibit #2;
• Her father’s evidence that headphones were always an issue for his daughter;
• Her father’s evidence that he had noted that she wasn’t her happy self when she got home; while this is a consideration, the Court is mindful of the risk associated with after the fact description of a person’s demeanour; it is not a significant consideration but this was never challenged by defence during the father’s cross-examination;
• The accused’s description of his apartment is, for the most part, supportive of the complainant’s description; − S.D.’s presentation as a witness is found to have been appropriate considering her personal circumstances and level of sophistication; specifically,
• She wasn’t argumentative;
• She was responsive to the questions;
• She was clear and not evasive;
• She had a good recollection; the fact that she had to refresh her memory with her prior statement on one occasion does not detract from this finding;
• There was an appropriate show of emotion. − As already noted, the other discreditable conduct is found to be strong circumstantial evidence which supports S.D.’s credibility and reliability; at page 8 of the Court’s May 11, 2016 Ruling on the question of admissibility of this extrinsic evidence, the Court stated the following at paragraph 50, page 8: “50…the Court finds that the events alleged by the complainant are closely comparable to the circumstances found by Justice Hackland in his reasons; such that coincidence is objectively improbable and serves as circumstantial evidence going to both credibility and the actus reus; − The Court notes the following comparables between the alleged incident subject to this trial and the other discreditable conduct:
• The invitation to attend his home
• The offering of an item as a reason to attend his home
• He was familiar with both complainants
• Both incidents occurred in his bedroom on his bed
• The removal of his clothing and the clothing of the complainants by him
• His pleading in having them participate in sexual relations
• The use of force to control the complainants
• The positioning on the bed
• While there is no penetration in the first incident, the acts are similar in nature as it involves his penis and both complainants being naked
• His taking steps following the sexual encounter to stop the complainants from leaving his home − The strength of the other discreditable conduct is based on findings made by Justice Hackland in the context of a trial; the said Justice was convinced of its veracity beyond a reasonable doubt; − It is recognized by counsel for the accused that there is no suggestion of collusion between the complainants;”
• The similarities in the events described by both S.D. and S.L. make it such that coincidence is objectively improbable; as stated by the Supreme Court of Canada in ARP op. cit, “…Though the similar fact evidence, standing alone, may fall short of proof beyond a reasonable doubt, it can be relied upon to assist in proving another allegation beyond a reasonable doubt. Two separate allegations can support each other to the point of constituting proof beyond a reasonable doubt, even where a reasonable doubt may have existed in relation to each in isolation.”

[270] The Court will now address the following points which were raised by defence counsel in regards to S.D.’s credibility, namely: − The lack of resistance; − The absence of physical evidence; − The delay in complaining; − The motive linked to the cell phone; − The Facebook messages.

271The question of delayed disclosure was raised by counsel. The incident was first reported by S.D. to her counsellor on February 29, 2012. The suggestion is that this should impact on her credibility.

272Parliament chose to abrogate the rule respecting recent complaint through section 275 of the Criminal Code.

[273] By doing so, it rejected assumptions of how persons react to sexual abuse. As explained by the Supreme Court of Canada in R. v. D.D., [2000] 2 S.C.R. 275 at paragraphs 64 to 66, there are no rule on how people who are victims of sexual assaults will behave. The majority stated the following at paragraph 65: “…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.”

274The Court has considered the circumstances of how the sexual misconduct was disclosed to the counsellor. The Court accepts the complainant’s explanation as being reasonable in the circumstances.

275The Court has also considered the issue of no physical evidence in support of the complainant’s version.

276While counsel did not specify what he meant by physical evidence, the assumption is that this refers to the absence of physical injury.

277The presence of confirmatory evidence such as an injury is certainly a relevant consideration. In fact, the Court should look for such evidence. In some cases, the absence of confirmatory evidence may also be telling. This is true when one would expect that there would be such confirmatory evidence. For example, if a child alleges having been subjected to sexual intercourse and examined medically soon after the event, the absence of injury could, with the proper expert evidence, be considered by the Court.

278However, in a case where a complainant discloses some three to four weeks after the events, in the absence of any evidence to suggest that the acts complained of caused or are expected to cause injury, the Court is not prepared to draw any inference from the lack of such physical evidence.

279Counsel submits that the complainant’s conduct was such that the Court must consider the alternative defences of consent and honest belief in consent.

280There is no question that a trial judge sitting without a jury must consider any viable defence. (R. v. Wobbes, 2008 ONCA 509).

281This is so even if two defences, as in this case, are theoretically incompatible. How can S.D. have consented if she wasn’t at the accused’s apartment on February 4, 2012?

[282] The true measure was set out by the Supreme Court of Canada in R. v. Gauthier, [2013] S.C.J. No. 32. Justice Wagner articulates the test as follows at paragraph 34: “34. In conclusion, there is no cardinal rule against putting to a jury an alternative defence that is at first glance incompatible with the primary defence. The issue is not whether such a defence is compatible or incompatible with the primary defence, but whether it meets the air of reality test. In any case, the trial judge must determine whether the alternative defence has a sufficient factual foundation, that is, whether a properly instructed jury acting reasonably could accept the defence if it believed the evidence to be true.”

[283] In support of his submission, counsel refers to the following facts: − S.D. attended the accused’s bedroom on her own; − She never stated “no”; − She did not scream; − She did not attempt to leave; she chose to stay; − There was no violence on the part of Mr. Thurston to support her stated fear; − She did not resist the oral sex; − She laid there like a statue − She placed his penis in her vagina; − The subsequent, after-the-fact Facebook messages sent by the complainant.

284The Court finds that there is no air of reality to both consent and honest belief in consent. These alternative defences do not have a sufficient factual foundation. As expressed by the Supreme Court of Canada, a properly instructed jury acting reasonably could not accept these defences even if it believed the evidence to be true.

285Clearly, there is no evidence to support the proposition that, while he may have been mistaking he honestly believed that S.D. was, in fact, consenting. Mr. Thurston did not allege such a belief.

286At a minimum, the law, as expressed in sections 265(4) and 273.2 of the Criminal Code and by the Supreme Court of Canada in R. v. Ewanchuk, [1999] 1 S.C.R. 330, requires such a subjective belief.

287The Court would add that even assuming the evidence established such a subjective belief, same would not stand as a defence in light of section 273.2 of the Criminal Code which serves to vitiate belief in certain circumstances including where the belief arose from “recklessness or wilful blindness” or “the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting”.

[288] The circumstances were such that he needed to inquire specifically: − From his own account, he barely knew her; − She was significantly younger than him; − He grabbed her by the wrist and had her lay next to him; he didn’t let go when she told him she needed to go home; − He was bigger and taller than her; − She tried to fight and push him; she kept arching her body; − She kept repeating “I have to go home”; − He placed her hand on his penis; − She curled up in a ball and then just gave up…she was speechless.

[289] As stated by the Supreme Court of Canada in R. v. Ewanchuk, op. cit, at paragraph 51: “51…a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence…”

290In regards to the complainant’s consent as an alternate defence, the Court’s view is that the evidence does not support this proposition. Even if the Court found that there is an air of reality to this defence, the Court is not left with a reasonable doubt on this question.

[291] As stated by the Supreme Court of Canada in R. v. Ewanchuk, op. cit., at paragraph 26: “26. The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred…”

[292] Section 273.1 of the Criminal Code defines the meaning of consent as: “…the voluntary agreement of the complainant to engage in the sexual activity in question.”

[293] The complainant S.D.’s uncontested evidence is that she did not want to engage in the sexual activity in question. She stated that: − She did not want to kiss him nor him kiss her; − She didn’t want to touch his penis; − She didn’t want to do this; − She was terrified…she closed her eyes…; − She just gave up…she stopped fighting…she gave him what he wanted.

294The fact that she attended the accused’s bedroom and sat on his bed, does not, when looked at in the context of what followed, create an air of reality to the proposed defence of consent.

[295] The complainant’s uncontested evidence in regards to her words and actions, once she sat on the bed, cannot be seen as providing a factual basis for consent. Again, this includes: − He grabbed her by the wrist and had her lay next to him; − She repeatedly told him she needed to go home; − He did not let her go; − She tried to fight and push him but he was taller and bigger; − She kept arching her body, she couldn’t use her hand; − She was trying to pull away and kept saying “I have to go”; − She curled up in a ball; − Following the incident in the bedroom, she laid against the washing machine; he put his hands beside her and tried to kiss her; she pulled her hand; he let her go.

296Assuming that there is a basis for such a defence, the Court is not left with a reasonable doubt against the complainant’s assertion that she did not consent. The Court believes her when she states that she subjectively did not consent.

297The Facebook messages do not detract from this finding;

298There is no question that these messages require consideration by the Court. While they raise some concern, they do not however, create a reasonable doubt for the Court;

299These messages are not direct evidence of the events of February 4, 2012. They amount to circumstantial or indirect evidence from which the Court is asked to draw inferences.

300The inferences sought by defence are that these are not consistent with S.D. having been the subject of sexual violence at the hands of Mr. Thurston. The assumption is that a victim would not send an aggressor such messages. The fact she did should, at a minimum, raise a reasonable doubt.

[301] While the argument is not without merit, the complainant provided an explanation which is not unreasonable when looked at in the totality of the circumstances. Specifically, − S.D. is not a very sophisticated individual; − She was in foster care and had very little means; − A cell phone was significant to her; − She didn’t know how to react; she was just going with it; she wanted to “get him off her back”; − She was scared and didn’t know what to do; she had been victimized in the past; − She doesn’t know how to explain how she was thinking; she was hiding the secret.

302The Court notes that Mr. Thurston is the one who initiated these communications and was, at times, insistent.

303The Court is also mindful that experience shows that individuals react differently to sexual abuse. There are no set ways or expected behaviour.

[304] As explained by the Supreme Court of Canada in R. v. D.D. op. cit., at paragraph 65: “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.”

305Counsel argues that the complainant had a motive to fabricate a story against Mr. Thurston.

306The suggestion is that he had promised to give a cell phone and never did.

307The accused’s version is not supportive of this proposition. His evidence on the question of the cell phone is that he never promised S.D. that he would give her a cell phone. He stated that he told her, as a friend, that he would provide her with same but that she would have to pay him back.

308Furthermore, there is no evidence to suggest that he refused to give her a cell phone. There is no such statement in the Facebook messages nor did S.D. testify that Mr. Thurston refused to do so.

309In the end, the Court accepts as credible S.D.’s explanation why she came forth with the allegations. The Court is not left with a reasonable doubt based on the suggested motive to fabricate.

Conclusion

310For the reasons discussed in this judgment, the Court finds that the Crown has proven each of the essential elements of sexual assault and unlawful confinement beyond a reasonable doubt.

311Accordingly, he is found guilty on both counts.

Justice Ronald M. Laliberté Jr.