Court File and Parties

COURT FILE NO.: 16-75 DATE: 2017-05-09

ONTARIO SUPERIOR COURT OF JUSTICE

PUBLICATION BAN: INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE COMPLAINANT IS PROHIBITED FROM PUBLICATION BY ANY METHOD BY ORDER DATED THE 6th DAY OF MARCH, 2014 PURSUANT TO SECTION 486 OF THE CRIMINAL CODE OF CANADA.

BETWEEN: HER MAJESTY THE QUEEN – and – Lewis Lauzon

Counsel: M. Purcell, counsel for the Crown Donald W. Johnson, counsel for the accused

HEARD: April 20th, 21st 2017

Reasons for Judgment

Lacelle, J.

Introduction

[1] Lewis Lauzon is charged with sexually assaulting and threatening to kill the complainant, D.O. At the time of these events, D.O. was just over eighteen years old. The accused was in his fifties. They had never met before the day of the alleged offences.

[2] The complainant and the police officer with carriage of the investigation testified during the course of the trial. The accused did not call any evidence.

[3] The issue in this case is whether the Crown has proved beyond a reasonable doubt that the sexual touching and threatening occurred. This chiefly turns on the assessment of the credibility and the reliability of the evidence of the complainant.

Overview of the evidence

[4] The complainant testified that on a day in June, he was riding his BMX bike in a local park when he met K.D. This was the first time the two had met. At the time, the complainant had just turned eighteen. He thought K.D. was younger, maybe fifteen or sixteen. The two biked for some time together until the complainant ruptured a tube in his tire.

[5] K.D., who knew the accused, suggested that they go to the accused’s house to see if he could help them fix the bike. K.D. told the complainant that the accused was his boss, and explained that he assisted the accused with his handyman work.

[6] Upon arrival at the accused’s residence, the pair found the accused in his garage, where he had a workshop. Another individual, A., who was known to the complainant, was there fixing his skateboard.

[7] The accused was asked to fix the complainant’s tire, and he did so. Following this, he asked the complainant and K.D. to help him sand down another bike he was working on, which they did. Eventually, the accused told them that he was having a chin up competition. The accused said that people would pay money for videos of them doing chin ups, and asked the boys if they wanted to participate. They agreed. They entered another room in the garage, and each performed a set of chin ups. Because it was hot in the garage, they took off their shirts while doing the chin ups, before putting them on again. The accused video recorded them on his cell phone. The accused told them he would send the videos out and let them know when the money came in.

[8] After the chin up competition, the complainant recalled that A. left the garage and went home. Following that, K.D. asked the accused if he could get them some weed, which he did. The complainant recalled that when he came back with the weed, the accused ground it up. The complainant said it was sparkly, and that he saw crystals in the weed. The accused said the crystals were the THC. Both K.D. and the complainant shared a joint. While they also offered it to the accused, he declined.

[9] The complainant testified that he felt funny about twenty minutes after smoking the weed. He explained that he felt very weak. He was seated in a chair at the time.

[10] K. announced that he was tired and was going home, and he left. As soon as K. left, the accused closed the door, locked it, put down the blinds on the door of the garage, and shut off the light. The accused then asked the complainant to feel his abs. The complainant said no, that he felt uncomfortable. The accused nevertheless pulled up his shirt and felt his abs.

[11] The accused then said he wanted to feel the complainant’s lower abs. The complainant said no. The accused then forced his hand down his pants. He grabbed the complainant’s penis. He asked him “is it hard yet”? The complainant did not do anything in response. He froze. The accused removed his hand after a few seconds. Then he turned around and threw twenty dollars onto the complainant’s lap. He told the complainant that he could come by day or night and that he liked him.

[12] The complainant said that after this he finally gained his strength and left. As he was leaving the accused told him that if he told anybody he would kill the complainant and his family.

[13] The complainant was scared and went home. He said that when he got home he wanted to kill himself. He recalled that he went to the police about a month later, after his parents got in touch with police.

The positions of the parties

[14] The defence highlights the foundational principles of criminal law in arguing that the accused should be acquitted. Counsel argues that the Crown has not met its significant burden of proof beyond a reasonable doubt, and reminds the court that an accused is never obliged to call evidence. He highlights issues with the credibility and reliability of the complainant’s evidence, including the fact of his criminal record, his admittedly poor memory, and the inconsistencies in his evidence. He argues those inconsistencies are significant and part of the “crux of the matter”, particularly as regards the issue of the date when the alleged offences occurred. The defence also argues that the complainant’s account of how the events occurred is implausible. With respect to the alleged threat, the defence emphasizes that there is no evidence the accused knew where the complainant or his family lived, and argues this undermines the complainant’s account. Finally, counsel argues that the court should find that the accused made a spontaneous utterance when he responded to an inquiry by the officer-in-charge of the case about whether he had a cell phone, and that his denial that he had a cell phone should be accepted for its truth.

[15] The Crown takes the position that it has met its onus and the accused should be found guilty. Counsel argues that the complainant was wholly credible, and that his evidence is sufficiently reliable to support findings of guilt. In support of this submission, counsel emphasizes that the complainant’s account was consistent at its core, and that he was unshaken in cross-examination on the core of the allegations. Counsel argues that any contradictions in the complainant’s evidence are either not truly contradictory, or that they related to such peripheral matters that they ought not to lead the court to reject the complainant’s evidence outright. Counsel also urges the court to consider the complainant’s evidence, including any weaknesses in his evidence, in the context of his unique characteristics. He argues that the complainant’s demeanour while testifying, and the absence of any motive to fabricate, further support his credibility. Finally, counsel argues that the complainant’s evidence was circumstantially corroborated by the evidence given by the police officer relating to her search of the accused’s garage.

Analysis

[16] As I have said, the core issues in this case are whether the complainant’s evidence is sufficiently credible and reliable to prove that the accused acted in the way the complainant says he did. However, there is also the issue of whether the evidence of the accused’s response to a police inquiry about whether he owned a cell phone may be admitted for its truth.

The spontaneous utterance issue

[17] The police witness testified that she did not obtain a search warrant for any electronic devices because the complainant indicated he was not sure what was used to record the chin up competition, and because the accused said he did not have a cell phone. The Crown adduced this evidence initially as narrative evidence explaining the officer’s conduct of the investigation. The utterance made by the accused was confirmed in cross-examination. The defence argues this statement by the accused is admissible for its truth because it is a spontaneous utterance.

[18] I am not satisfied that the utterance is admissible on this basis, or that it may be relied upon for the truth of its contents. Leaving aside the issues that the accused has not testified and that a spontaneous utterance would only be admissible in that case for the purpose of showing the reaction of the accused when first confronted with the accusation (see R. v. Edgar, 2010 ONCA 529, at paras. 24 and 72), there is no evidence that would permit the court to conclude the utterance was spontaneous. On the evidence before me, the accused was charged at the end of January of 2014, while the search warrant was only executed in April of 2014. I have no evidence about when the utterance was made by the accused, let alone that it was spontaneous. On the facts, it appears to have been elicited by a question from the officer, and not spontaneously offered by the accused. Accordingly, I consider the accused’s utterance only as part of the narrative relating to the conduct of the investigation.

[19] I turn next to an assessment of the credibility and reliability of the complainant’s evidence.

Credibility

[20] I find the complainant was a very credible witness. He was straightforward in giving his evidence, and appeared to be doing his best to answer questions from both counsel. As the Crown argued, the complainant did not appear to be “selling” his evidence in any way. He did not comment on the accused’s character, or appear to have any agenda in giving his evidence other than to answer the questions put to him. There was no suggestion he had embellished or exaggerated his evidence, nor did he shy away from giving evidence that could paint him in a less favourable light. He readily admitted his criminal record and the facts relating to some of those convictions, the fact that he had outstanding charges and his marijuana use during the encounter with the accused. He also admitted that he took the money the accused threw at him after the alleged assault.

[21] In finding that the complainant is a credible witness, I have considered his criminal record, and the fact that he has outstanding charges. The complainant’s prior criminal conduct is limited to acts of mischief, a theft of an ATV, and breaching his probation. While one of these convictions relates to an act of dishonesty, in the circumstances of this case, the complainant’s criminal record does not lead me to reject his evidence. Indeed, it appears that but for the complainant’s honest account of why he was on probation in relation to the first entry on his criminal record there would be no evidence of his theft of the ATV. While I recognize the complainant has committed criminal offences which relate to his honesty and respect for the court, I nevertheless find that he was doing his best to be truthful when he testified before me.

[22] I also consider that there is no evidence the complainant had any motive to fabricate his account of being touched and threatened by the accused. To be clear, the defence has not alleged that he does, and is not advancing fabrication as his defence. The defence also has no obligation to adduce evidence of a complainant’s motives.

[23] Nevertheless, the presence or absence of a motive to fabricate may properly be considered in assessing a witness’s credibility: see R. v. W.B., [2000] O.J. No. 2184 (C.A.) at paras. 120-125; R. v. O.M., 2014 ONCA 503, [2014] O.J. No. 3210 (C.A.) at paras. 107-109. As explained by Doherty J.A. in W.B. at paras. 120-121,

It is difficult to think of a factor which, as a matter of common sense and life experience, would be more germane to a witness’ credibility than the existence of a motive to fabricate evidence. Similarly, the absence of any reason to make a false allegation is a factor which juries, using their common sense, will and should consider in assessing a witness’ credibility.

What must be avoided in instructing a jury is any suggestion that the accused has an onus to demonstrate that a complainant has 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. The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility.

[24] I adopt the instructions in those paragraphs as well as paragraphs 122-125 of W.B. in considering the evidence here. The evidence before me is that the complainant and the accused had never met each other before the date of the alleged offences. There is no evidence they have had any contact since, or that there is any other connection between them. There is no evidence that the complainant had a motive to fabricate. This does not mean he is necessarily telling the truth, or that no motive could exist. The absence of evidence of an established motive for the complainant to fabricate is only one factor that I consider in assessing his credibility.

[25] The Crown also relies on the complainant’s demeanour while testifying and directs the court to cases that hold that testimonial demeanour is a proper consideration in the evaluation of a witness’s credibility: see O.M. at paras. 32-35, citing R. v. J.J.B., 2013 ONCA 268 at para. 112. While it is clear from the cases that demeanour may be properly considered in assessments of credibility, it is also clear that over-reliance on demeanour evidence may be dangerous, given the wide variety of ways in which people may reasonably respond to various circumstances. In this case, while the complainant was emotional during his testimony at various times, and nothing in his demeanour detracted from his credibility, I prefer to focus my assessment of the complainant’s credibility on other factors.

Reliability

[26] The issue of the reliability of the complainant’s evidence requires consideration of a number of issues, particularly the inconsistencies in the evidence and other issues raised by the defence. I will address those issues in turn. To give some context for my consideration of the issues which may undermine the reliability of the complainant’s evidence, I begin by considering the complainant’s evidence more generally.

[27] The Supreme Court has directed that “[e]very person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate.”: R. v. W.(R.), [1992] 2 S.C.R. 122 at para. 26. While this statement was made in the context of its direction on the correct approach to the evidence of children, the plain language used by the court supports the application of that statement to all manner of witnesses. I see no reason why the evidence of the complainant in this case should not be assessed in accordance with that direction. However, as with the evidence of children, this does not mean that a less rigorous standard applies to the assessment of its credibility and reliability: see W.(R.) and R. v. Barua, 2014 ONCA 34 at paras. 24-25. Those issues must always be proved beyond a reasonable doubt by the Crown.

[28] In this case, the complainant’s maturity and sophistication at the time of the offences and at trial are part of the context for the assessment of his evidence. At the time of the offence, the complainant had just turned eighteen. He had spent the afternoon with a younger teen-ager riding BMX bikes, which speaks to his relative maturity. The evidence suggests the complainant was from a disadvantaged background. He was living in a rooming house and was supported by social services. He was not in school, and was not able to read and write. He says he took the money the accused threw at him because he needed money to buy food. At the time of trial, the complainant was twenty-one, and was working on completing his grade twelve. During his testimony, he had some difficulty in expressing himself, and used language consistent with his limited education. The evidence regarding the complainant’s circumstances and the manner of his presentation in court lead me to conclude that he is not mature or sophisticated for a person of his age, and that he has some difficulty with abstract thought. On the last point, the best example is his confused evidence in response to the Crown’s attempt to have him clarify the time frame for the offences given the date he gave his statement to police.

[29] As regards the evidence given by the complainant about the alleged offences, I was impressed with the degree of detail in his evidence about the touching he alleged by the accused as well as the threatening comments made by him. The detail included how the touching started and progressed, comments made by the accused at various stages, how long the touching lasted, what touching occurred, and the actions taken by the accused before and after the touching (for instance in closing the blinds, locking the door and turning out the lights beforehand, and in throwing twenty dollars in the lap of the complainant afterward). The complainant was consistent in these core aspects of his account throughout his evidence and he was not shown to have been inconsistent on any other occasion. Certain parts of that account, such as the accused throwing twenty dollars at him after the touching, and his evidence about the comments made by the accused as he did so, were not only consistent in his evidence, but seem unlikely to have been included in a fabricated account, particularly given the complainant’s admission that he took the money.

[30] The complainant also appeared to have a good memory of where the offences occurred, and the garage where he says these events took place. Even though he was there only briefly, he was able to direct the police to the address of the accused. The location and layout of the garage at that address was consistent with the general description of the garage given by the complainant in his evidence, and he was not shown to have been inconsistent in those details of his evidence. Further, some of the items the complainant described in the garage were corroborated by the evidence of the police witness who conducted a search there almost a year after the alleged offence. For instance, the complainant gave evidence about the accused closing the blinds on the window to the garage before he touched him. A photo of a door to the garage with a window covered by blinds was taken during the search of the garage, and the complainant identified them in his evidence as the blinds closed by the accused. This corroborating circumstantial evidence enhances the reliability of the complainant’s evidence.

[31] However, the complainant was also shown to have been inconsistent on a number of issues in his evidence, and I turn to a consideration of those issues now. First, I have considered that the complainant was inconsistent about the timing of events. He was inconsistent in his accounts of whether the offences occurred in 2013 or 2014. He was also clearly mistaken in his recollection that he complained to police about a month after the alleged offences, given the evidence that his statement to police was taken in January of 2014. In the circumstances of this case, I find that these inconsistencies are not significant.

[32] As argued by the Crown, the complainant has been consistent about the month in which the events occurred. He was not contradicted in aspects of his account that are consistent with a recollection of these events having occurred in June, such as the fact that he met his new friend K.D. that day because he helped him retrieve his bike from the river, or that it was hot in the accused’s garage and so he removed his shirt while doing chin-ups. Many people have difficulty in identifying the year or month in which a certain event occurred. The complainant said in his evidence that this is difficult for him. I find that the complainant’s contradictory evidence about whether these events occurred in June of 2013 or 2014 is the product of the frailty of human memory. For the same reason, I am not troubled by the complainant’s clearly mistaken recollection of how long after these events he complained to police. While these types of details might be important in another case, nothing turns on them in this one, and I find they are not material.

[33] To the extent that it matters as regards to the facts of the case, I am satisfied beyond a reasonable doubt that the events took place in June of 2013. The complainant first spoke with police in January of 2014. Even though the complainant was not able to reason that the events must have taken place in the previous year, I have no hesitation in making that finding given the chronology of the investigation, and my acceptance of the complainant’s account that these events occurred in June.

[34] Another inconsistency in the complainant’s account relates to who purchased the marijuana consumed by the complainant and K.D. At trial, the complainant said the accused had gone out to get it. In cross-examination, he agreed he had given an account to police that suggested his friend K.D. had gone to get it, and that he had not mentioned the accused’s involvement, except to say he grinded it up. The complainant explained the disparity in these accounts by saying that K.D. had gone out to find some weed, and when he could not, the accused went and got some. While there is a discrepancy in this evidence that is closer to the core narrative given by the complainant, I am not persuaded that the discrepancy in the complainant’s account relates to a material issue, or that is a sufficient basis in the circumstances of this case to reject his evidence in its entirety.

[35] I arrive at the same conclusion as regards the discrepancies in the complainant’s account about whether A. was present during the chin-up competition and as to whether the accused used a cell phone to video record the chin-up competition. When I consider the totality of the evidence, none of these discrepancies in the evidence lead me to the conclusion that the reliability of the complainant’s evidence is so compromised that it would be dangerous to rely on his recollection of how he was touched and threatened, or by whom.

[36] Finally, I have considered the evidence given by the complainant that he has a poor memory, and the fact that he had consumed a joint of marijuana, and possibly some other unknown drug, prior to the alleged offences. The complainant readily told defence counsel when contradicted on various issues in cross-examination that he has a poor memory because he has had a concussion. However, he also firmly maintained that he knew what had happened to him that day. He was not cross-examined about the defects in his memory that may have resulted from his drug consumption. The only evidence as to its impact on him was that it made him feel weak. When I consider these features of the evidence in the context of the evidence as a whole, I find that whatever the impact of the complainant’s drug consumption, or his memory problems as a result of his concussion, he had a number of clearly reliable recollections of details of the scene. I do not find that his memory is so poor, or that he was so impaired by drugs, that he could not also accurately recollect the manner in which he was touched or the comments made by the accused, which in context, he had even greater reason to remember.

[37] The defence also raises the issue that the account given by the complainant should be rejected because it is implausible. He argues that the complainant’s account of the sexual touching taking place in the dark makes no sense because the accused would not be able to carry out an assault in total darkness. On that point, the evidence is that the touching took place in the accused’s garage. There is an inference on the evidence, particularly given the admission that the accused had lived at this residence since 2008, that this place was familiar to him. I see nothing implausible in the assault taking place in the conditions described by the complainant. As for the suggestion that because there is no evidence the accused knew where the complainant or his family lived, a threat to kill him or his family makes no sense, I do not agree. I see nothing implausible in the complainant’s account of how he was threatened.

[38] I have also considered the defence submissions about the lack of corroborating evidence that might have been produced in this case. For instance, the police did not locate a chin-up bar on the ceiling of the garage as described by the complainant, although a bar was found in their search that was not fixed to the ceiling. The defence also points out that there is no independent evidence that the accused had a cell phone, and neither A. nor K.D. were called as witnesses by the Crown.

[39] As regards the evidence located by police during their search, the search was conducted sometime after the complaint was made which in turn was many months after the alleged events. It was also conducted a few months after the accused had been charged. In these circumstances, I am not persuaded that the failure to find a chin-up bar in place as described by the complainant undermines the plausibility of his account.

[40] As for the fact that the Crown might have called additional witnesses, there are many reasons why a witness may or may not be produced by a party. The defence argues an adverse inference should be drawn by the court, but has not particularized the inference sought. Regardless, given the record in this case, I am not satisfied that any adverse inference should be drawn simply because the Crown exercised its discretion in not calling a witness (see R. v. Jolivet, 2000 SCC 29 at paras. 14-30).

[41] With respect to the issue of the cell phone, I accept the evidence of the police witness about why further investigative steps were not taken to seize electronic devices from the accused. I accept her evidence that the complainant was not sure at the time of the investigation whether a cell phone was used and that this is a contradiction of his evidence at trial. I have addressed the impact of that inconsistency already. As for the resulting absence of evidence that the accused did have a cell phone at the time of the alleged offences, while in some cases the absence of evidence may be determinative, in the circumstances of this case I do not find that it is fatal to accepting the evidence of the complainant about what the accused said and did to him. It is one factor in the evidence which I consider in light of the totality of the evidence.

Conclusion

[42] While the complainant’s evidence was contradictory on certain issues and suffered from frailties in other respects, I arrive at my conclusion about the credibility and reliability of his evidence only after consideration of the totality of the evidence. In the end, I believe the complainant’s account of how he was touched and threatened. I am satisfied beyond a reasonable doubt as to the credibility and reliability of these aspects of his evidence, and many others. To be clear, I am satisfied beyond a reasonable doubt that the accused enlisted the complainant and K.D. in a chin-up competition, that the assault occurred after the complainant and K.D. had consumed marijuana that was ground up by the accused, that the accused did not participate in smoking the joint when it was offered to him by the boys, that the offences took place after A. and K.D. left the garage, and that the accused threw twenty dollars at the complainant after the sexual touching had occurred and told him he could come back any time.

[43] There is no question in this case that if the acts alleged are proved by the Crown beyond a reasonable doubt the offences of sexual assault and threatening death are made out.

[44] Upon considering the totality of the evidence I find that the acts which constitute those offences did take place. I am satisfied beyond a reasonable doubt that the accused sexually assaulted the complainant, and then threatened to kill him. The accused will be found guilty on both counts.

Madam Justice Laurie Lacelle Released: May 9th, 2017