Court File and Parties

Court File No.: 15-40 Date: 2016/10/18 Ontario Superior Court of Justice

Note: 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(3) OF THE CRIMINAL CODE OF CANADA

Between: Her Majesty the Queen – and – K.B.

Counsel: Matthew Collins, Counsel for the Crown William Wade, Counsel for the Defendant

Heard: July 19 to July 21, 2016

Reasons for Judgment Leroy, J.

Introduction

1The Crown asserts that K.B. sexually assaulted SW on […], 2014 while driving her home contrary to s. 271 of the Criminal Code. Collateral charges, made out if K.B. is convicted of sexual assault, include breach of undertaking and probation. K.B. was on probation for a prior Code conviction and was on bail for Criminal Code matters pending on […], 2014.

2The prosecution called three witnesses, namely the complainant, SW, her mother BW and K.B.’s spouse, TL. TL was not anxious to advance the Crown case to the prejudice of her spouse. Her testimony contradicted the complainant and supported K.B..

3K.B. testified. He denied sexual overture of any kind directed to the complainant. Although they disagree on application, counsel agree that the W.(D.) formulation applies to my analysis. The ultimate issue is whether the Crown proved that the incident alleged transpired. Consent or mistaken consent are not raised in this case.

Background

The Complainant

4SW attained the age of 19 years on […], 2015. She was afflicted with significant mental health issues. Her mother testified that the complainant had prescriptions for twelve anti-psychotic medications and had attended the psychiatric ward of the hospital sixty-five times for assistance. She was formed under the Mental Health Act shortly after […] st following an encounter with a patrol officer who delivered her to the hospital. She does not recall the particulars.

5SW met JB, with whom she began an intimate exclusive relationship, while they were in-patients in the psychiatric ward. She met the accused when he visited his son JB when JB was an in-patient in that ward.

6SW said she routinely consumed anti-psychotic and sleep-aid prescribed medications between 9:00 and 9:30 p.m. She supplemented with marijuana. Her mother said that SW would often be in bed asleep by 9:30 as a medication consequence.

7SW said she had known TL for about two years in […] 2014. She was a regular visitor to the K.B./TL home. She alluded to an intimate interlude with TL, known to the accused and not to JB, that ran its course before she began dating JB.

8She testified to having ended her exclusive relationship with JB approximately two weeks before her birthday. She depicted the state of their relationship on her birthday as friends who hung out. She described JB as her boyfriend when she testified during the preliminary hearing.

9SW denied having observed JB smoking marijuana in the K.B. home or beseeching the accused for access to his pain medication. In the weeks preceding the events alleged, she was a regular visitor in the home. Whatever the culture in the home, she was familiar and intimate with it.

10She said that TL approached her on Facebook to connect and hang out after these events, but she declined.

TL

11TL is twenty-nine. She has been in a common-law relationship with the accused for 4 years. She does not have a criminal record. She supports herself on ODSP. She denied knowing the complainant personally at the material time, although she knew of her because of the two-week relationship between the complainant and JB.

12She confirmed having accompanied K.B. and the complainant when he drove the complainant home from time to time. In cross-examination, TL acknowledged having known the complainant for two or three weeks before the end of […] in the context of the relationship between JB and SW.

13She gave two statements to the police. In the first, she asserted that she accompanied the two on the drive home. In the second statement, she acknowledged that not to be true.

14TL testified to babysitting for the neighbor directly across the street from the K.B./TL home through the evening of […], 2014. She said she was just leaving the home when SW arrived that day. This day care undertaking was one off. The regular day care sitter cancelled and TL filled in as a favour.

15TL adduced a series of photographs she says she took of the truck K.B. used to drive SW home on […], 2014. She said she took the pictures in June 2015 and gave them to defence counsel, but not the police. The complainant reviewed the photographs and denied they depict the same truck.

17She said SW approached her on Facebook after these events to connect and hang out, but she declined.

K.B.

18K.B. is forty-five. He supports himself on ODSP based on disability consequent to back and heart problems. At the material time, he said he had prescriptions of Oxycocets and Percocets for pain. He said he weighed 280 pounds in […] 2014 compared to 218 today.

19He has a persistent criminal record. It began with convictions for failing to stop at the scene of an accident and failing to appear in 1989 and ending with a conviction in October 2015 for possession of cocaine for the purpose of trafficking. In between there are convictions for sexual assault – 1997, spousal assault – 2001, production – 2004, mischief – 2011 and failing to comply with recognizance – 2011, 2012.

20K.B. confirmed that the truck depicted in the photographs is the same truck he drove to deliver the complainant home on […], 2014. He described it as a 1996 Dodge Hemi 1500 series 2-door and denied there was a back seat. The console cover latch is and was broken so that if the console is raised, the contents spill into the back of the cab. He said that when the console was down he could not reach the passenger door lock from the driver seat.

21K.B. testified to detailed recall of the events of the […], 2014. He confirmed the confrontation with BW on June 1st and her sexual assault allegation.

BW

22BW is protective of her daughter. She confirmed familiarity with K.B. over fifteen years. She confronted K.B. immediately giving him reason to crystallize the events of […], 2014 in memory.

The Narrative

23Unless otherwise specified, the narrative stems from the complainant’s testimony.

24SW attended the K.B. home on […], 2014. It was her birthday for which she received a sum of money. She arrived at 6:00 or 7:00 p.m. by taxi. The only occupants were K.B. and JB. One or the other told her that TL was babysitting. They listened to music, she ingested her medications at 9:00 or 9:30 p.m., she became drowsy, asked for marijuana and was told there was none in the home. She had marijuana at home. She determined to return home, smoke a joint and go to bed. K.B. offered to drive her home. K.B. drove her home regularly, often in the company of TL. K.B. was shirtless.

25SW and K.B. left the home at 10:30 p.m. K.B.’s vehicle was a small green truck. When they got into the truck, K.B. said “You help me I’ll help you” as he offered her a pipe packed with marijuana. She accepted the pipe and smoked the content. When she enquired about his meaning, he said “this is simple”. She ingested the marijuana and denied any consequential intoxication.

26She sat in the front passenger seat. She recalls that the front seats were buckets divided by a fixed console. There was a back bench seat. At the preliminary hearing, SW depicted the vehicle’s front seat as a bench seat.

27When SW finished smoking the pipe content, she returned the spent pipe to K.B. and he began the drive. She thought she would be home in between five and seven minutes.

28Instead of taking a routine route, K.B. detoured into a nearby alley and parked. K.B. then reached across her body and pulled the seat recliner lever on the right side of the passenger seat so the seat back reclined. Her seat belt remained fastened. K.B.’s seat belt was unbuckled. He then pulled her tank top and bra down exposing both breasts which he fondled orally. Her protestations were ignored. She heard K.B. undoing his belt and felt him pull her head toward his lap. She determined she would not do this. Then he stopped, buckled his pants, started the truck and drove to her home. The console was not moved during this episode.

[29] SW attributed two post-incident propositions to K.B.:

• That if she were to disclose this incident to anyone, he would inform JB about her tryst with TL; and
• He proposed a reprise the following Wednesday at a quarry when he said TL would be babysitting.

30She said he telephoned her twenty minutes after the drop-off and reiterated the threat and proposal.

31She said that even though they were no longer dating one another she did not want to lose JB as a friend. To her knowledge, JB was unaware of the TL/SW tryst and she was fearful of how JB might respond to that news. She was also fearful that if she disclosed the sexual assault that, in itself, would sunder her relationship with JB.

32K.B. confirmed they spent the evening listening to music on the television, that SW arrived by cab, that he knew of the sexual interlude between SW and TL. He recalls a conversation about tomato planting and fertilizer. He said that JB and SW had smoked SW’s marijuana approximately one hour before he drove her home. He was wearing a shirt. He was tired. She pestered him for a drive. He did not offer marijuana to her. She had her own. He allowed SW and JB to smoke in the house because JB was on house arrest and could not leave the home to smoke. He did not permit marijuana smoking in his vehicle because he was on probation and a road stop with residual olfactory evidence would engender a breach charge.

33K.B. thought he had a decent relationship with the complainant. They had not argued. He wanted her to stop pestering him about giving her access to his narcotic pain medication and alcohol.

34K.B. denied the marijuana, the detour, alley stop, sexual assault, mention of sexual assignation at the quarry and inferentially the threat to expose the tryst with TL. He asserted detailed memory of the events of the day and evening, the weather, how he felt, what he was wearing, what SW was wearing and the route taken to and from Ms. SWs home.

35K.B. acknowledged familiarity with a quarry. He had been there years before with his ex-wife. He recalled that the quarry had been closed for two years.

36SW went to bed after the telephone call. She denied having recall of whether she smoked any more marijuana once home. She visited and disclosed to her mother the next day. Her mother urged her to report to police. SW was ambivalent about reporting. She returned home without reporting.

37SW’s mother BW recalls talking with SW by phone twice that night. The first after medications. Her daughter sounded tired, but everything was fine. The second later in the evening. Her daughter sounded agitated. Her daughter attended at her home, disclosed an attempted rape and stayed overnight. She said she encouraged her daughter to report to police, but SW resisted because the police had not believed an earlier report of unrelated sexual assault.

38On re-examination, BW stated that these events triggered memories of a past sexual assault against SW.

39BW confronted K.B. with this on June 1, 2014. K.B. denied the allegations and suggested she was crazy.

40What ensued is unclear. The police became involved after an encounter on 7th Street. SW recalled an “iffy” night and denied recall of what she was doing there. The officer took her to the psychiatric ward where she was formed. SW disclosed to police on June 3rd, 2014. SW does not recall how she came in contact with the investigating officer.

41BW testified that SW returned to her home a second time and they called the police then. She was unclear on dates. The police called the next day and SW went to the station to give her statement. BW was uncertain whether SW was hospitalized before or after the making of the statement.

42TL said that K.B. texted her to advise he was taking SW home and she watched the two leave the K.B. home at 9:00 p.m. She had her cell phone with her and the time was on display. She said the truck returned at 9:10 p.m. She said that K.B. visited her briefly on his return. That information was not in her statement.

Legal Principles

43K.B. is presumed to be innocent unless and until Crown counsel proves his guilt beyond reasonable doubt. This presumption stays with him throughout the trial. The burden of proof is always on the Crown regardless of what evidence defence provides, fails to provide or chooses not to provide. K.B. does not have to prove anything. I have to determine whether all the evidence has proved the offence of sexual assault beyond a reasonable doubt.

44A reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. A reasonable doubt is a doubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. While more is required than proof that the accused is probably guilty, a reasonable doubt does not involve proof to an absolute certainty, R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.). Proof beyond reasonable doubt falls closer to absolute certainty than to proof on a balance of probabilities.

45There are at least four potential sources of error when a witness describes events she claims to have observed or experienced: perception; memory; communication; and sincerity. Credibility and reliability are different. Credibility has to do with the witness’ veracity, reliability with the accuracy of the witness’ testimony. Accuracy engages consideration of the witness’ ability to accurately observe, recall and recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence. Credibility is not a proxy for reliability; a credible witness may give unreliable evidence; R. v. C.(H.), [2009] ONCA 56 – per Watt J.A.

46I can believe some, none or all of a witness’ testimony. Neither of counsel for the Crown, nor the defence are bound to suggest that the trier of fact should uncritically accept everything said by witnesses respectively called by them.

47The assessment of evidence includes consideration of benchmarks of reliability and credibility such as whether a witness has reason to give evidence more favourable to one side than to the other, the inherent reasonableness of testimony, internal consistency and consistency with other evidence and availability of other sources of information.

48Witnesses are often tested on inconsistencies in what that person testifies to on the stand and what that witness said on other occasions, under oath or not. Inconsistencies on minor matters of detail are expected and generally do not reflect badly on a memory and sincerity assessment. Where inconsistencies involve material matters about which an honest witness is unlikely to be mistaken, it can demonstrate carelessness with the truth and raise the issue of whether or not the trier can rely on that person’s testimony.

49K.B. testified. His evidence is assessed in the same way as the testimony of any witness. K.B. has a criminal record. The utility of a criminal record is limited to assisting in my determination of how much or little to believe and rely on his testimony in deciding this case. His record is only one of the many factors for consideration. It cannot be used to paint K.B. as the sort of person who would commit a sexual assault against the complainant.

50In cases where credibility is important, the rule of reasonable doubt applies to that issue. The familiar direction suggested by Cory J. in R. v. W.(D.), [1991] 1 S.C.R. 742 is applicable. If I believe K.B.’s evidence that he did not sexually assault SW, then I am bound to find him not guilty. If after consideration of all the evidence I am unable to decide whom to believe, I must find K.B. not guilty because Crown counsel would have failed to prove K.B.’s guilt beyond reasonable doubt. Even if I do not believe K.B.’s evidence, if it leaves a reasonable doubt about his guilt, I must find him not guilty. Even if K.B.’s evidence does not leave me with a reasonable doubt of his guilt, I can convict only if the rest of the evidence I do accept proves his guilt beyond reasonable doubt.

51An adverse finding as to the credibility of the accused or evidence offered on his behalf does not lead inescapably to a finding of guilt nor does it in any way relieve the Crown of the burden of proving the case against the accused beyond a reasonable doubt.

52Both counsel, in submissions, alluded to the issue of SW’s motive or absence of motive to fabricate these allegations. Mr. Collins argued that the absence of motive to fabricate can be compelling. Mr. Wade argued that the one possible undeclared motive to fabricate could be the complainant’s angst over K.B.’s refusal to share his prescribed narcotics with her.

53The absence of any reason to make a false allegation is a factor which triers of fact, using their common sense, will and should consider in assessing a witness' credibility. What must be avoided is any suggestion that the accused has an onus to demonstrate that a complainant had a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive or, finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth – R. v. Batte (2000), 49 O.R. (3d) 321, [2000] O.J. No. 2184.

54As Rowles J.A. stated in R. v. B. (R.W.), [1993] B.C.J. No. 758, 24 B.C.A.C. 1 (C.A.), at para. 28: "[i]t does not logically follow that because there is no apparent reason for a witness to lie, the witness must be telling the truth". Put another way, the fact that a complainant has no apparent motive to fabricate does not mean that the complainant has no motive to fabricate.

55The complainant's good relationship with K.B. and the negative consequences she may have experienced as a result of making her allegations do not prove that she had no motive to fabricate. A good relationship does no more than reinforce the absence of evidence of proved motive. The same reasoning applies to evidence of negative consequences that may ensue from making serious allegations. Although they highlight the significance of absence of evidence of motive, they do not prove the absence of a hidden motive - R. v. L.L., 2009 ONCA 413.

The Truck Photographs

56The truck photographs are real evidence generated by TL.

57The Court of Appeal summarized the process involved in forming the conclusion that a party has fabricated evidence in R. v. O’Connor (2002), 62 O.R. (3d) 263 - para 2. It entails firstly a false statement; secondly, evidence discrediting that false statement; and finally, independent evidence that supports a finding of fabrication, that is independent of the evidence discrediting the false statement.

The Evidence – Credibility/Reliability

58The evidence adduced in this trial, taken as a whole, leaves me in a state of uncertainty about who or what to believe.

59Credibility/veracity is the issue. To the extent that witness veracity or lack thereof permits, I can accept that their memories crystallized at the time. Crown counsel’s cross-examination of K.B. underscored the frailties of memory regarding events of unremarkable days in a life. In this case, BW confronted K.B. immediately. That made […], 2014 remarkable to TL and K.B.. They can’t be faulted for purported strength of memory.

60Defence underscored the complainant’s mental health issues and the anti-psychotic medication regimen supplemented by marijuana consumption as considerations going to her memory. I agree with the Crown’s submission that that argument is not made out in a dispositive fashion. For the most part, the recall of the events of the evening as recounted by K.B. and SW were ad idem. That said, she was medicated by anti-psychotic and sleep aid medications and intoxicated by the effects of marijuana when she said this happened. She does not recall whether she smoked another joint after getting home. If BW is to be believed the complainant’s memories of the overnight are lost. I suspect this allegation was first disclosed when the complainant was intoxicated by the effects of marijuana consumption.

61I accept that there is no evidence of a convincing motive to fabricate these allegations. A sexual assault allegation in response to withholding narcotics seems disproportionate.

62I accept that TL was pre-disposed to give evidence more favourable to her spouse. The task is to unpack the nuggets of truth from the tangle of untruths. She lied to the police in the first interview. She denied knowing SW at all in direct, yet confirmed having accompanied K.B. and SW on earlier ride home occasions. The denial about knowing SW is incongruous with the evidence of both SW and K.B. as to the tryst. The evidence about her mental recording of the time of departure and return and that he attended her duty location is too convenient by far. The time lines that she testifies to preclude a mid-route stop of any kind. That this critical piece of evidence was disclosed for the first time at trial, after two opportunities with the investigators fatally undermines basis for reliance.

63The truck identification issue is problematic. It was an alleged crime scene.

64The photographs of the truck are what they are. TL and K.B. testified to a four-year common law relationship with one another. Both testified that the truck depicted in the photographs is the same and only truck K.B. owned on […], 2014. It is easy to trace.

65The defence theory is that the cab width, the obstruction that is the console and K.B.’s relative obesity at the time precludes the distortions attributed to K.B. by SW and the viability of fellatio.

66SW denied the authenticity of the photographs. She asserted that the photographs are of a replacement vehicle. She said the photographs depict a much larger truck cab than the one in which she was assaulted. She noted differences in window cranks, console size and the recliner lever. She said the console depicted in the photographs was way bigger. Her memory on other details was vague.

67The task of establishing a negative can be unnerving. I sensed that SW was defensive in her testimony about the truck photographs. She resorted to gratuitous inputs such as “I heard about a breakdown on the way to Ottawa and that he bought a replacement vehicle” or “I saw him driving around the city in a newer and larger vehicle.”

68The photographs, if accepted, raise reasonable doubt. As SW’s testimony on this issue was focussed on vehicle identification, which she denied, she was not asked to re-enact the assault with reference to the front seat and console depicted in the pictures.

69The photographs are real evidence in that they permit the trier of fact to use his/her own senses to observe and draw conclusions.

70The photographs either depict the truck K.B. owned and drove on […], 2014 or they do not. Fabricating evidence for trial is a serious offence. There is no independent evidence to confirm fabrication. Based on what is before the court, I am not prepared to conclude that the photographs are of another vehicle. TL does not bring much in the way of credibility, but I am unprepared to impute criminal conduct in their presentation based on the evidence presented.

71K.B.’s testimony did not inspire the impression of veracity. By himself, his evidence was not such as to raise reasonable doubt. He denied the charges. He has a significant criminal record. He acknowledged crimes of dishonesty. He flouts court orders. His issues are not so much that of whether to commit a criminal offence or not, rather they are whether the risks of apprehension outweigh the benefit. His record for drug offences suggests his assertions about being offended by anyone smoking marijuana in his home or that he would not offer a pipe packed with marijuana were disingenuous.

72I’ve decided that although K.B.’s familiarity with a nearby quarry in the context of an attendance there with his ex-wife years previously could be corroborative of the proposition linked to the offence charged, there are other innocent possibilities inconsistent with corroboration.

73As regards the final W.(D.) review and whether the rest of the evidence I do accept proves his guilt beyond reasonable doubt, there are deficits.

74SW’s categorical denial about smoking marijuana with JB in the K.B. home was untrue. That is what they did. She said she enquired about marijuana before she departed the home that night and when she was denied she determined to go home to smoke up and go to bed. She was a regular visitor to the home and knew the lay of the land. If she did not expect to smoke marijuana during the visit, she would not have gone there. K.B.’s testimony asserting that SW and JB smoked a joint an hour before she left resonates.

75I think that K.B.’s assertion regarding requests for access to his narcotic medication is closer to the truth than SW’s denial.

76The pipe offering loses meaning if she and JB were smoking marijuana during the visit. Her narrative depends on her urge for the high after an evening of abstinence. The quid pro quo component of “You help me I’ll help you” evaporates if she is already high. Her denial of the intoxicative effect of smoking the pipe content is incongruous. K.B.’s concern for apprehension and another breach resonates. I do not believe he is reluctant to break the law. I do accept he is alert to the consequence of undue risk. Smoking marijuana in his vehicle amounts to gratuitous risk-taking.

77Mr. Collins argued that the complainant’s presentation was to be preferred to that of TL and K.B.. He submitted that SW limited her testimony to “the facts.” She did not take gratuitous jabs at K.B.’s character. By comparison Mr. Collins submitted that K.B. avoided the hypothesis (the issue) and instead tried to cast aspersion on the complainant and that practice is indicative of an agenda of duplicity. Specifically, K.B. referred to SW’s habit of pestering him for access to his narcotic pain medication for recreational use. He noted that she often brought her own marijuana to the house and smoked with JB.

78I am not of the same mind with that argument. The complainant is pursuant to the rules of evidence generally precluded from adducing evidence of the accused person’s bad character. Her recounting of events is indictment enough. The accused is on trial for the offence of sexual assault and not for being a person of poor character.

79The defence is generally not so constrained. In this case K.B. said that he did not make any sexual overtures toward the complainant. He dealt with the problem directly. He is not under an obligation of having to explain why the complainant advanced this claim. The presumption of innocence so important in the courtroom is not so trusted by those under the spotlight. Naturally, a person accused will want the trier to know a little more about the accuser. I do not conclude that acting on this aspiration is indicative of an agenda of duplicity.

80The propositions attributed to K.B. after the fact are disconcerting. Truth can be as strange as fiction but. Although not inconceivable, it is unlikely that a fellow who had just been rejected would suggest a reprise. Even from the complainant’s perspective the initiative failed miserably. SW’s explanation for concern over disclosure of the bi-sexual tryst ring hollow. She said the relationship with JB had ended. They were just friends at that point. Why would he care? By comparison, the moral blameworthiness inherent in the sexual assault of your son’s girlfriend overwhelms the peccadillo of a same sex liaison from the past.

81As in all trials, the evidence does not illuminate everything there is to know about the circumstances and the events of […], 2014. I have the impression that each witness fudged testimony for best effect and what was presented comprised half-truths. In my view, Crown evidence has not displaced the presumption of innocence. I am not satisfied beyond reasonable doubt of the fact of a sexual or any assault perpetrated by K.B. against the complainant. I am unsure whether it happened or not and I must acquit.