COURT FILE NO.: CR-15-30000538-0000 DATE: 20170706
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – M.B. Accused
Counsel: Eadit Rokach, for the Crown T. Edmund Chan, for the Accused
HEARD: March 27 - 31, 2017 and May 9, 10 and 12, 2017
B.A. ALLEN J.
REASONS FOR DECISION
(Application on Lost Evidence under s. 7 and 24(1) of the Charter and Trial Reasons)
BACKGROUND
[1] This case proceeded as a blended lost evidence application and trial. The Applicant, M.B., brings the application seeking a stay of proceedings based on the fact the police disclosed a video recording of the complainant’s, C.S.’s, police interview that lacked the audio recording.
[2] M.B. was arrested on June 2, 2014. He was charged with two counts of sexual assault and two counts of sexual interference against C.S., then age 15. It is alleged that M.B. committed the sexual offences on about October 7, 2014 and on October 21, 2014. M.B. was age 22 at the time of the first offence and turned 23 years on October 21, 2014.
[3] On March 26, 2014 M.B. gave a video recorded statement at the police station. C.S. testified at the preliminary hearing on September 8, 2015.
[4] D.C. Laura Spencer interviewed C.S. at the police station and Sgt. Amy Handsor took notes. As it turns out, unknown to the officers, the audio equipment at the police station malfunctioned during the interview. Months after the interview the parties learned that the audio on the video was not captured.
[5] The defence submits the loss or absence of a viable videotaped interview violates his right under s. 7 of the Canadian Charter of Rights and Freedoms to full answer and defence and results in an abuse of process pursuant to s. 24(1) of the Charter.
THE LOST EVIDENCE APPLICATION
The Law
[6] I am deciding this application after hearing all the evidence at trial. The Crown called C.S. The defence called the accused, M.B., and the two police officers who interviewed C.S. The trial evidence gives me the evidentiary scope to determine the actual effect, if any, of the videotaped recording of C.S.’s interview not being available for trial.
[7] The Supreme Court in R. v. Stinchcombe established the basic principle that the accused’s right to make full answer and defence is bound to his right to full and fair disclosure: R. v. Stinchcombe, [1991] 3 S.C.R. 326. Such remedies as an adjournment or an award of costs against the Crown are available for failure to disclose relevant, unprivileged evidence. The Applicant seeks a stay of proceedings, a remedy granted only “in the clearest of cases”: R. v. La, [1997] 2 S.C.R. 680, at para. 66.
[8] It is the defence’s position that by the loss of the audio recording the Crown and police have not complied with their obligation to preserve the fruits of the investigation: R. v. La, at para. 20. R. v. La set down three criteria for determining whether a s. 7 violation has been committed by the loss of the evidence:
- unacceptable negligence;
- an abuse of process; and
- violation of the accused’s right to make full answer and defence
Unacceptable Negligence
The Principles
[9] The Crown has the burden to satisfy the court there is no unacceptable negligence, that there was no breach of the accused’s s. 7 right to full answer and defence.
[10] The recording of C.S.’s police interview is relevant to the issue of M.B.’s guilt of the sexual offences. The police disclosed the evidence. The Crown disclosed the videotape to the defence as required. I believe on the circumstances of this case this is a separate question from the police’s duty to preserve the evidence.
[11] Technically, we are dealing in this case with partially missing evidence rather than lost or destroyed evidence. The video of the interview was recorded but the audio aspect was not captured. So a piece of evidence, a DVD of the interview, exists. The circumstance in this case is similar to that in a case I previously decided where the audio portions of two young children’s police interviews were not recorded: R. v. R.B., 2016 ONSC 2558.
[12] Like the situation in R. v. R.B. the case at hand does not involve either the police failing to disclose evidence in their custody. Nor does it involve an inability to disclose evidence that was once in police custody but was lost or destroyed. The case before the court involves a failure at the point of its production and during its production, if possible or practicable to ensure the proper production of evidence the police had intended to create.
[13] It is not a certainty that it is possible or even practicable to ensure the latter, that the police could have ascertained the proper creation of the evidence during its production. They disclosed what they had. Unwittingly, a deficient recording was disclosed. Neither the police nor the Crown reviewed the evidence before disclosure to the defence.
[14] The Crown is required to explain a loss or destruction of evidence. The same would reasonably apply to missing evidence. If the explanation is satisfactory the Crown has discharged its obligation unless the circumstances giving rise to the loss or destruction are such that a remedy under the Charter is warranted: R. v. Stinchcombe (No. 2), [1995] 1 S.C.R. 754, at para. 2.
[15] It would have been evident to the police that the recording of C.S.’s interview would be relevant and probative evidence for trial. The officers would appreciate that the recording would be critical to the Crown’s case and to the defence’s ability to cross-examine the witness. This is particularly the case with the evidence of a child or a young person at the age of 15 years at the time.
[16] A determination on unacceptable negligence requires consideration of whether the Crown or police took reasonable steps in the circumstances to preserve the evidence, or in the case at hand to ensure the creation of the evidence: R. v. La, at para. 21. Evidence lost, missing, or destroyed as a result of ordinary human error or human frailty does not meet the standard of unacceptable negligence. Unacceptableness is a question of fact to be decided on the facts of the case.
Evidence of the Officers Involved in the Interview
D.C. Laura Spencer
[17] There were two 43 Division police officers involved in the interview of C.S. on March 26, 2014. D.C. Laura Spencer conducted the interview and Sgt. Amy Handsor acted as the scribe taking notes during the interview. The interview lasted 36 minutes.
[18] The officers were unaware of the technical problems. They say they had no reason to suspect any problems with the recording.
[19] D.C. Spencer testified she was acting in accordance with her normal practice when she did not test the equipment. She understood the equipment was set up to record and there was no appearance of any irregularity when she dealt with the equipment. She testified it did not occur to her to test it.
[20] D.C. Spencer testified she ensured the light under the power button was on. She indicated there was a note on the audio box which stated, “Do not touch volume control.” While she did not know who put the note there, her understanding was that the volume was set at a certain setting and it should not be touched.
[21] D.C. Spencer said she then ensured the line on the volume knob was lined up with the middle line indicating one-half the volume range and then put the DVD into the player and pressed the record button. She observed that the time clock on the top right of the TV screen was counting the passage of time.
[22] D.C. Spencer testified she did not replay the DVD at any time after the interview. Nor did she replay the DVD before the interview was completed.
[23] The DVD was then sent to TPS video services, a department D.C. Spencer said was backed up with work at the time. After the accused was arrested on June 2, 2014 the Crown’s office requested the interview DVD. It took several months after the request for the DVD to be delivered to the Crown. There was no indication from video services that there was no audio on the DVD. D.C. Spencer testified that by the time of the first judicial pre-trial it was known that the audio was missing.
[24] D.C. Spencer testified that shortly after she discovered the audio was not recorded she learned from the TPS IT department that a problem was identified with the recording system that resulted in multiple DVDs with no audio.
Sgt. Amy Handsor
[25] Sgt. Handsor was shown TPS policy and procedure 04-32 in the Toronto Police Policy and Procedures Manual. She was not familiar with it but thought she may have seen it at some time in her career.
[26] The Manual advises that electronic recordings of statements provide the best and most reliable account of what was said.
[27] Sgt. Handsor testified that she did not play the DVD after the interview. Nor did she replay any portion of it before the interview was over. The officer testified that at times officers would play back the DVD at the end of the interview. However, her evidence was that it would not be practical to replay the DVD before the interview was over because the recording would have to be finalized before it could be played back.
[28] According to Sgt. Handsor, to play back a portion of a DVD before completion, which requires finalization of the DVD, once finalized the DVD cannot be used again. I take this to mean a new DVD would have to be used to complete the interview. As I understand it, finalization functions to prevent recording over an existing recording. Sgt. Handsor testified that the smaller the amount recorded on a DVD the longer the finalization process takes.
[29] Sgt. Handsor indicated that 43 Division has two portable tape recorders that officers use to record interviews outside the Division and as backup for interviews conducted at the station. She testified she and D.C. Spencer did not use a backup recorder and she said she did not recall if she asked whether one of them was available.
[30] The Manual directs officers to avoid taking written “word for word” statements during electronically recorded statements. There is no explanation of the reason for this policy and Sgt. Handsor indicated she did not know the rationale. The Policy also directs officers to make point form notes of key elements of the statement provided.
[31] Sgt. Handsor prepared point form notes, not verbatim. She was referred to certain passages of her notes, particularly the areas where she refers to incidents of sexual assault. The officer’s general orientation during questioning was that she took point form notes of what she heard C.S. say. When asked for the meaning of particular notations she often indicated she did not know. She said she was just noting what she heard. The officer stated she did not ask for clarity on anything C.S. said.
[32] The notes on the central issue of the number and details of the sexual assaults are not easily decipherable.
[33] On the first page of Sgt. Handsor’s notes the officer notes “happened three times” and “1st time he guilted me into it” and “he forced me”. Later on that page it states, “21st Oct – last time” and then “2 weeks before that – went to his house, we were sitting in his room – it just happened”. On the next page it is noted “he asked me if I wanted to have sex.” “said I wasn’t in the mood, then I said fine, & we do it”. Page 84 states, “1st time, I consented 2nd time, I said no sex.”
[34] The Crown argues the meaning of the reference to something happening three times is clarified later in the notes. The Crown says the notes meant that C.S. was referring to two sexual incidents during the first time at M.B.’s home and one sexual incident on his birthday. The defence disagrees and argues it appears from the notes that C.S. refers to something happening three times but the notes make it appear C.S. only discussed two incidents.
[35] I conclude the notes are not clear on how many sexual assault incidents occurred. They are disjointed and sketchy in detail and consequently are not of a great deal of assistance to either the Crown or the defence.
[36] On March 8, 2015, just before the commencement of the preliminary inquiry, D.C. Spencer presented Sgt. Handsor’s scribe notes to C.S. for her review. C.S. testified that she was told the audio was missing from her interview and that she was asked to read the scribe notes and sign them if she agreed with the contents.
[37] C.S. confirmed that the initials at the right side bottom of each page were hers and that the initials meant she read each page. She stated that the signature on the last page meant she agreed with the contents. C.S. testified that after she read the notes she did not find anything that was incorrect.
[38] The Crown was not aware of the audio problem until months later. This foreclosed a remedy for the problem. It would not be practical or in the interests of fairness to conduct a further interview. This would go against the spirit of s. 751.1 of the Criminal Code to require a young person to later revisit the stress of a police interview when their memory of their experiences would likely not be as clear.
Conclusion on Unacceptable Negligence
[39] The Crown must prove on a balance of probabilities that unacceptable negligence on their part did not cause the lost or missing evidence.
[40] It is not in every instance that negligence that causes the loss of evidence will result in a Charter breach. I must determine whether the police conduct amounted to a violation such that M.B.’s right to make full answer and defence was violated. Was the fact that the police failed to review the DVD and discover the loss after the interview amount to an error occasioned by ordinary human frailty? Did the Crown make reasonable efforts to preserve the DVD?
[41] Through the officers evidence the Crown sought to explain why the missing audio was not discovered. I accept Sgt. Handsor’s evidence that for the reasons she offered it would not have been practical to stop the recording during the interview and review the DVD to test the contents. The explanation for such late discovery of the problem boils down to the fact that the police did not listen to the DVD at the end of the interview or soon thereafter, and the fact the Crown did not review it earlier than around the first judicial pre-trial.
[42] There was a note on the volume box advising officers not to touch the “volume control”. D.C. Spencer said she did not know why that note was there. There is no evidence she inquired about this before she began the interview. The officer said she ensured the volume button was properly adjusted and saw the power light on and hit record. It is not clear from the evidence whether the “volume button” referred to by the officer is the “volume control” the note referred to and whether the officer touched it or not. D.C. Spencer testified it was not until sometime after the interview that she learned there was a problem with the equipment’s audio recording system.
[43] I find D.C. Spencer had a warning that there was something amiss with the volume on the recording system. I think this behooved her to inquire into this issue before she started recording.
[44] The TPS Manual emphasizes the critical importance of the electronic recording of a victim statement as the best and most reliable medium to convey what was said by the victim. The Manual stresses the value of this evidence in a court proceeding. This is all the more the case with young victims of sexual assault where the police interview is usually their first recounting of their experiences which evidence if adopted by the young victim at trial becomes evidence in court.
[45] I think that the warning prompted by the note on the volume control should have alerted the officers to look into the availability of one of the portable tape recorders to use as backup. There is no evidence they did so.
[46] In conclusion, I find the Crown has not met its burden to show on a balance of probabilities that the police’s conduct was not the result of unacceptable negligence. Under the circumstances I conclude there was a breach of the accused’s s. 7 Charter rights.
Abuse of Process
[47] The finding of unacceptable negligence does not complete the analysis of whether the defence is entitled to a stay of proceedings under s. 24(1) of the Charter. A determination must be made of whether the conduct of the police and Crown rise to the level of an abuse of process.
Where the Crown is unable to satisfy the judge in this regard, it has failed to meet its disclosure obligations, and there has accordingly been a breach of s. 7 of the Charter. Such a failure may also suggest that an abuse of process has occurred, but that is a separate question. It is not necessary that an accused establish abuse of process for the Crown to have failed to meet its s. 7 obligation to disclose.
[48] Courts have jurisdiction to stay criminal proceedings under s. 24(1) of the Charter where putting a person on trial would amount to an “abuse of process” and violate the “principles of fundamental justice” under s. 7 of the Charter: R. v. Power, [1994] 1 S.C.R. 601. A stay of proceedings is the most drastic of remedies available to a court. As the Supreme Court of Canada stated:
Charges that are stayed may never be prosecuted; an alleged victim will never get his or her day in-court; society will never have the matter resolved by a trier of fact. For these reasons, a stay is reserved for only those cases of abuse where a very high threshold is met: “the threshold for obtaining a stay of proceedings remains, under the Charter as under the common law doctrine of abuse of process, the ‘clearest of cases’”.
R. v. O’Connor, [1995] 4 S.C.R. 411
[49] To obtain a stay of proceedings the applicant must meet a high threshold. A stay is only permissible in the “clearest of cases”. There are two criteria that must be satisfied for the defence to obtain a stay of proceedings:
- the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial or by its outcome; and
- No other remedy is reasonably capable of removing that prejudice.
R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at paras. 53 and 54
[50] The burden shifts to the accused to establish on a balance of probabilities that an abuse of process has occurred. The accused must show that allowing the state to proceed against him would violate the community’s sense of fair play and decency or that his trial would be an oppressive proceeding: R. v. D. (E.).
[51] Abuse of process involves conduct on the part of governmental authorities or agents which violates those fundamental principles. Conduct such as the deliberate destruction or loss of material by the police directed to defeating the Crown’s obligation to disclose material commonly falls into this category”: R. v. La, at para. 22.
[52] The Supreme Court of Canada heard a case where evidence was deliberately destroyed by a medical clinic.
[53] The case involved multiple sexual assaults on a woman who sought therapy at a clinic. The clinic was in possession of the therapeutic records of the victim. Through a third party application, the defence sought production of the complainant’s records. Before trial the clinic shredded notes contained in hundreds of files. The shredding was done to prevent anything from being ordered produced. The court found the destruction of that material and its consequent non-disclosure resulted in a violation of the accused’s Charter right to full answer and defence. The Court held the accused must show a “reasonable possibility” of impairment of the right to make full answer and defence: R. v. Carosella, [1997] 1 S.C.R. 80.
[54] An Ontario Court of Appeal case dealt with evidence including an audio tape that was not disclosed to the defence. The tape had been copied but neither the original nor the copy could be found. The police were evasive about the existence of the tape and deliberately failed to advise the Crown the evidence was lost. The police did not reveal the loss to the defence until two-and-a-half years after the trial. The court found that this was abusive conduct by the authorities and that the fair trial interests of both accused had been thwarted by state agents: R. v. Court and Monaghan.
[55] The facts in the case before me do not approximate the facts in the cases cited. I find there is no support in the facts for finding of abuse of process in this case.
[56] The police conduct shows no evidence of deliberate intention or action to keep evidence from the defence. The evidence was not destroyed or suppressed. The police delivered the DVD to the Crown. The Crown disclosed it to the defence as was their obligation. Neither the police nor the Crown was aware of the defect, that the audio was not recorded. There was nothing deliberate or in bad faith in the police’s and Crown’s conduct.
[57] The defence has failed in its burden to show an abuse of process.
Impairment of Right to Full Answer and Defence
Possibility of Impairment
[58] To establish an “impairment” of the Charter right to full answer and defence the defence must demonstrate a “reasonable possibility” that the undisclosed information could have been used in meeting the case for the Crown, in advancing a defence, or in otherwise making a decision which could have affected the conduct of the defence.
[59] The Supreme Court of Canada held in R. v. McQuaid that the analysis does not end there. The level of impairment required to be proven increases in relation to the scope of the remedy sought. Where the defence is seeking the extraordinary remedy of a stay of proceedings proof of “irreparable prejudice” to the right to make full answer and defence must be established.
Once an accused establishes impairment of the right to make full answer and defence as a result of the Crown's failure to disclose, he or she is entitled to a remedy under s. 24(1). Again, it is at this stage that the degree of impairment or prejudice to the accused's rights must be assessed and considered in relation to the remedy sought. For example, an accused who seeks the extraordinary remedy of a stay of proceedings must not only establish, on a balance of probabilities, that the right to make full answer and defence was impaired, but must also demonstrate irreparable prejudice to that right.
R. v. McQuaid, [1998] 1 S.C.R. 244, at paras. 22 and 23
[60] As noted earlier, missing or lost evidence is particularly concerning in circumstances where the missing evidence is a young complainant’s prior videotaped statement to the police. C.S. was 15 years of age when she gave the statement, age 16 at the preliminary inquiry and age 19 at trial.
[61] Section 751.1 of the Criminal Code and cases applying that provision recognize that children more so than adults have better recall of events shortly after they occurred rather than after weeks, months or years have passed. This is more the case with children in their early years, younger than C.S.
[62] It is possible therefore that the videotape recording would have contained a more accurate recollection of events than C.S.’s recall in her later testimony at trial. The availability of the videotape for trial would have benefited the court in its search for the truth. It might have provided an additional tool for the defence to cross-examine C.S. to bolster its case against the Crown. In these circumstances, I find the Crown’s failure to disclose raises a “reasonable possibility” of impairment to the defence’s right to make full answer and defence.
[63] However, the defence seeks the extraordinary remedy of a stay of proceedings which requires the defence to demonstrate “irreparable prejudice” to its right. To obtain a stay it is not sufficient for the defence to show a failure to disclose or late disclosure of the evidence. The defence must also prove “the impossibility of a fair trial or oppression amounting to abuse of process”: R. v. Biscette, 1995 ABCA 234, at para. 18; affirmed (1996), 110 C.C.C. (3d) 85 (S.C.C.).
[64] As set out below, the defence did not succeed in establishing “irreparable prejudice.”
Actual Prejudice and Irreparable Harm
[65] There would have definitely been some benefit to the defence to have had a viable videotaped statement to add to C.S.’s trial evidence.
[66] Sgt. Handsor’s notes were in point form as recommended by police policy. But they were very sparse for an interview lasting over a half-hour. Sgt. Handsor admitted she just wrote down in point form what she heard C.S. say. She could not explain what many of her notations meant. The notes therefore would do little to fill the void caused by the defective video recording.
[67] The officers expected the videotape equipment to be functioning properly. Sgt. Handsor would have reasonably relaxed her note-taking. This meant, for the purposes of cross-examination, reliance had to be placed on C.S.’s evidence at the preliminary inquiry held one year after the alleged assaults and on her trial evidence given nearly three years after the alleged offences.
[68] However, I find the effect of the missing audio cuts both ways. The loss was not only to the defence. At the same time that the defence lacked the videotape and transcripts for cross-examination the Crown lost access to a further source of evidence with which to bolster C.S.’s trial evidence. Keeping in mind it is the Crown’s burden to prove the accused’s guilt, a loss of evidence particularly in a “he-say-she say” case can detract from the Crown’s capacity to satisfy its burden.
[69] Courts have emphasized it is not sufficient to show evidence was lost that prejudiced the defence’s case or that the lost or missing evidence would have assisted the defence. There has to be a showing of substantial prejudice. Prejudice must be assessed in the context of other available evidence. The Ontario Court of Appeal commented on this:
The fact that a piece of evidence is missing that might or might not affect the defence will not be sufficient to establish that irreparable harm has occurred to the right to make full answer and defence. Actual prejudice occurs when the accused is unable to put forward his or her defence due to the lost evidence and not simply that the loss of the evidence makes putting forward the position more difficult. To determine whether actual prejudice has occurred, consideration of the other evidence that does exist and whether that evidence contains essentially the same information as the lost evidence is an essential consideration.
R. v. Bradford, at para. 8; R. v. Sheng, 2010 ONCA 296, at para. 47
[70] I make the decision on this application having heard all the evidence. I observed that defence counsel was not impeded in his ability to test C.S.’s credibility. The cross-examination of C.S. was lengthy and strenuous conducted over two days. Defence counsel used the interview notes, such as they were, and the transcript of C.S.’s testimony at the preliminary inquiry. Through an effective challenge to her credibility defence counsel was successful in raising a reasonable doubt about M.B.’s guilt of all four charges.
Conclusion on Stay of Proceedings
[71] Any disadvantage to the defence that might have resulted from the unavailability of a videotaped interview did not result in irreparable harm. The effect of the missing evidence did not meaningfully impair the accused’s right to make full answer and defence. This is not one of the clearest of cases where a stay of proceedings is the appropriate remedy. Through the trial I observed that any prejudice that might have existed was not “manifested, perpetuated or aggravated” through the conduct of the trial or by its outcome.
[72] I therefore deny the application for a stay of proceedings.
THE TRIAL
C.S.’s Evidence
Arrangements at Trial
[73] C.S. started grade 10 in September and left later that month. At the time of the offences she was 15 years of age. In the summer of 2013, C.S. began working with her mother delivering newspapers to hotels. They would start a shift at around midnight and work until about 5:00 a.m. She was doing that job when she met M.B. and continued the job during her relationship with him.
[74] The Crown applied under s. 486.2(1) of the Criminal Code for C.S. to testify behind a screen. Vulnerable witnesses under age 18 at the time of the offence may on application by the Crown testify behind a screen or outside the court room. At trial C.S. was 19 years of age. On consent of the defence, I allowed C.S. to testify behind a screen.
[75] C.S. testified she suffers from anxiety and depression which makes her get nervous in crowds, when she meets new people and when she goes out on her own. She has taken medication for depression, but not for anxiety. She was not taking medication in October 2013. No medical support for her conditions was adduced.
[76] Throughout the trial, arrangements were made when C.S. was entering and exiting the courtroom before and after leaving the witness box, for her to be escorted by the court constable in such a manner that C.S. and M.B. would not be able to see each other.
[77] C.S. also requested on several occasions during her testimony when testifying about the sexual assaults, that she be allowed to write down what she wanted to say and then read it out in court. I permitted her to do this. She said she felt very nervous and uncomfortable speaking about what happened to her. She felt ill at ease saying words like hers and M.B.’s body parts. Her notes were made trial exhibits.
[78] On cross-examination defence counsel posed questions about her contrasting circumstance at the preliminary inquiry. Defence counsel pointed out that at the preliminary inquiry when she was two years younger in a similar courtroom setting, Crown counsel asked her questions about the details of the two incidents at M.B.’s apartment.
[79] Defence counsel referred her to parts of the transcript dealing with the two encounters and she agreed that she gave explicit details of the encounters referring to her vagina and M.B.’s penis and what acts they engaged in. Defence counsel pointed out there was a male Crown, a male defence counsel and a male judge. C.S. agreed with defence counsel that she did not require a screen, before answering, or ask for a break. She agreed she did not ask for a piece of paper to write things down.
C.S.’s Initial Contacts with M.B.
[80] C.S. testified that around January 2013 her friend, Tamia, put her (C.S.’s) profile picture up on her (Tamia’s) Blackberry Messenger (“BBM”) account. C.S. testified the profile did not have her age on it at the time. Tamia told her someone saw C.S.’s picture and asked Tamia for C.S.’s Personal Information Number (“PIN”) so that person could contact C.S. According to C.S., M.B. contacted C.S. by BBM and they chatted with each other for some time before they spoke by phone. They then spoke by phone for a few months before they met.
[81] C.S. testified that in January 2013, M.B. told her on BBM he was going to turn 18 in October 2013 and asked her age and she stated that she told M.B. she was age 15. C.S. testified she never told M.B. face-to-face that she was 15 years old.
[82] C.S.’s evidence is that they communicated by BBM messenger, text message, by phone and at times through Facebook messenger before and after they first met and after the incidents of sexual assault. She testified they communicated with each other every day. They communicated by Facebook less often than by the other means.
[83] As will be discussed further below, M.B. claims an inability to read and write in English beyond a grade 5 level. He said he cannot write a complete sentence. M.B. described himself as slow. He said he was not able to write texts, BBM messages or Facebook messages on his own. He testified that contrary to what C.S. testified he did not send BBM messages in writing. He used the voice note feature which allows a Blackberry user to verbally record a message and send it to a recipient’s cell phone.
[84] Unlike C.S.’s testimony, M.B. stated that he never communicated with C.S. by Facebook. When cross-examined about this C.S. said she did not recall how many times she communicated with M.B. by Facebook but it was not very often. On cross-examination, defence counsel directed C.S. to several parts of her preliminary inquiry transcripts where she told defence counsel that she and M.B. communicated by BBM and phone from when they met in 2013.
[85] At trial C.S. agreed she was asked those questions and gave those answers but said she just forgot to mention Facebook each time. She agreed that the only time at the preliminary inquiry she mentioned communication by Facebook was when she testified about changing her phone number after October 2013 around December 2013 and M.B. messaged her with game invites which she declined.
[86] During her police interview on March 26, 2014, she told the officers she had saved Facebook messages between herself and M.B. D.C. Spencer asked C.S. to provide her Facebook profile and messages. However, she was only able to provide the police with a screen shot of her Facebook profile for September 2015, two years after she stopped talking to M.B.
[87] When defence counsel suggested to C.S. that M.B. communicated with her by voice note, she responded, “I don’t remember.” On cross-examination, she testified she never saw M.B. writing or reading a book. She confirmed that he spoke in patois or broken English, that she sometimes did not understand him and that his messages were short and sometimes in broken English.
[88] C.S.’s and M.B.’s first face-to-face contact was at a library in the neighbourhood of her apartment. M.B. who was age 22 at the time came with his brother, Steven, who was age 15 at the time. C.S. was with her friend, Sophyah, who was age 14 at the time. The four of them met and talked for a couple of hours. C.S. and M.B. did not discuss their ages.
[89] The second time they met was a few months later at the apartment where C.S. lived with her mother. She invited M.B. to come over. She introduced him to her mother as her boyfriend. M.B. was afraid of C.S.’s family dog so they went into C.S.’s bedroom and blocked the door so the dog could not enter. They sat on the bed and talked. C.S. added M.B. as a Facebook friend on that day. She said they mutually kissed on that occasion. There was no sexual activity.
The Sexual Assaults
The First Incident
[90] The first incident happened on about October 7, 2013. C.S. testified that she and M.B. were talking on the phone and discussing going to a movie. His young niece and nephew were at home with him. She said she offered to watch the kids until their mother came home while he took a shower. He called a taxi for her and sent his brother, Steven, on his behalf to pay for the taxi. Steve took her to M.B.’s bedroom. C.S. said M.B. was in bed. C.S. sat on the edge of the bed. According to C.S., M.B. brought her some water, returned to the bedroom and locked the door behind him.
[91] M.B. sat on the bed beside her and they began to talk. He asked her if she wanted to have sex with him. C.S. indicated she said “no”, that she was not comfortable and that she was not ready yet. M.B. kept insisting and saying it is no big deal. She testified M.B. insisted for about 20 minutes. She grew tired of him asking and just said “yes”. She had sex with him but testified she did not want to.
[92] When asked in-chief what M.B. did to her she hesitated to answer. Crown counsel asked if it would help if she wrote down what she wanted to say. C.S. accepted that option and wrote down her evidence before testifying. C.S. testified M.B. took off her pants. She had her top and bra on. She was lying on her back. She said he had a T-shirt on and thought he had a condom on. She said the sex lasted about a half hour. C.S. testified he put his penis into her vagina “and it went on from there”.
[93] C.S. asked him about the movie and told him she wanted to go out. He just lay in the bed as she told him she never planned to stay there. C.S. stated that M.B. said if she kept trying to make him stay up, he would want a “round 2” which she understood to mean more sex. Her reply was that it was not going to happen. She said she put her clothes on.
[94] C.S. testified M.B. climbed back on top of her. She was on her back. She told him to get off of her because she did not want sex. C.S. said he told her “Just allow it. It is no big deal.” Crown counsel asked if she wanted to write down what happened next. C.S. indicated that she did not need to. She just needed time to remember. She said he took her pants off and was trying to have sex with her. C.S. then requested to write down what happened.
[95] On cross-examination, defence counsel challenged C.S. about the second episode on that day. He directed her to the transcript of the preliminary inquiry. C.S. testified at the preliminary inquiry that she did not remain in the same position on her back. She said that M.B. told her to move and she ended up on her side on the bed with him behind her. He penetrated her vagina from that position. As will be seen, this is also consistent with M.B.’s evidence on the second episode.
[96] C.S. agreed she gave that evidence and that her evidence at the preliminary inquiry was true. When confronted with the inconsistency in her evidence, she said, “I don’t know. I don’t remember.”
[97] C.S. testified she was squeezing her legs together and saying she did not want to have sex. He repeated “Just allow it.” She said she froze and cried and told him to stop. She gave in because she did not know what to do. C.S. said he did not use a condom that time. She was not sure if he ejaculated.
[98] C.S. said she wanted to leave and she put her clothes on. He called her a taxi. She left by taxi between 8:00 p.m. and 9:00 p.m.
[99] C.S. stated M.B. called her on her cell phone when she was in the taxi. In-chief, C.S. did not mention that she called M.B. when she got home. On cross-examination defence counsel referred her to her preliminary inquiry transcript where Crown counsel asked her when, after she left the taxi following the first incident, she next spoke to M.B. At the preliminary inquiry, C.S. testified she called him when she got home. C.S. said the transcript refreshed her memory that she called him when she got home. C.S. agreed with defence counsel’s suggestion that she called him because he was still her boyfriend regardless of what happened that day at his apartment.
[100] C.S. testified she was in touch with M.B. two or three times after the first incident before the second incident which occurred on his birthday on October 21, 2013. She said these contacts were either by Facebook, text or phone. She said she knew she was not in contact by BBM because she had dropped her phone into the toilet.
The Second Incident
[101] C.S. testified M.B. told her he was having a few people over to his apartment on his birthday on October 21st. C.S. said she thought he was turning 18 that day.
[102] C.S. testified on-cross-examination that when she went to the party she considered M.B. to be her boyfriend. She said M.B. invited her over the phone to the party which she said she originally refused but decided to go because she thought her friend was going with her so she would not be alone. During the preliminary inquiry she said she did not know if she invited herself or if M.B. invited her. M.B.’s evidence was that C.S. invited herself.
[103] Tamia cancelled the day before. But C.S. went to the party anyway. C.S. could not explain why she went even though her friend would not be with her. She insisted she did not want to go. She testified that she said she would go to the party and she felt for that reason that she had to go. She said she did not remember why she felt she had to go. But she said she was scared just to be there around so many people.
[104] C.S. testified M.B. asked her to take public transit. She stated that she had only taken public transit alone a few times because she was prone to having panic attacks in those circumstances. She said she had mixed feelings about taking public transit. C.S. said she was both scared and mad at M.B. for asking her to take public transit. She said she swore at him when he asked this of her, but she went to the party anyway. She reached his address with the directions he gave her over the phone.
[105] As will be seen, M.B. testified on the contrary that C.S. took public transit willingly and was not angry about that. She told him she was familiar with the area. He confirmed he was on the phone with her during the trip giving her directions to his apartment.
[106] C.S. testified she did not buy him a present because she thought he did not deserve one. On cross-examination defence counsel pointed to her evidence during the preliminary inquiry. C.S. testified at the preliminary inquiry that she saw a teddy bear on his bed. She had a teddy bear in her closet which she grabbed from her closet to bring for him as a birthday gift. In the end she did not give it to him.
[107] When asked about the inconsistency in her evidence, she said the preliminary inquiry evidence was true and what she said in-chief was incorrect.
[108] C.S. arrived at the apartment door. M.B. answered the door and he took her to his bedroom. She said she was very angry at him. C.S. said she sat on the side of the bed. His niece and nephew were in the room. She said because the kids were still in the room M.B. mouthed the words, “Do you want to have sex? Do you want to fuck?” According to C.S., M.B. put the children out and locked the door. C.S. testified she said “no”. He then turned on the TV and turned the light out. She said she told him she was afraid of the dark, but he refused to turn the light back on.
[109] When asked what M.B. did next she asked to be able to write down what she wanted to say. She said after he sat on the edge of the bed he asked whether she wanted to have sex. She refused and according to C.S., M.B. said, “Just allow it. It’s no big deal”. She said he moved close to her and she asked him to get her a glass of water. She began to cry.
[110] C.S. testified that when M.B. came back he climbed on top of her. She said “no”. She was lying on the bed and she crossed her legs. She requested a blanket and after he got a blanket, he climbed back on top of her and took off her pants. C.S. stated that she tried to stop him by holding onto the waist band of her pants. She brought her knees up placing her feet flat on the bed. She put her hands over her face and started to cry. C.S. stated that M.B. opened her legs and lay flat on top of her. She did not recall if she said anything to him.
[111] C.S. requested again to write down what she wanted to say happened next.
[112] She testified she told him to stop and tried to push him. He asked why she was being so difficult and told her to just allow it. She said he put his penis into her vagina. She said she thought this incident lasted over a half-hour. He stopped and left the room. She put on her clothes. She told him she was ready to go. But he told her to wait and brought two friends into the room who she said smoked a joint.
[113] Although C.S. stated that M.B. told her while she was in the bedroom, without details, that Steven was in trouble, M.B.’s evidence about what happened on his birthday otherwise was entirely contrary to that of C.S. As will be seen, M.B.’s evidence is that his brother, Steven, got arrested and his focus that entire evening was on how to help his brother. He saw C.S. only at times when he checked in on her in his bedroom while she was watching TV.
[114] C.S. testified she called her mother with the intention of creating the impression of her mother getting angry and ordering her home. Through using a code she said she and her mother had between them, she told M.B. her mother was angry and had ordered her to come home. M.B. and the two friends walked her to the bus stop. She got on the bus and went home.
[115] A couple of days later they spoke by phone. C.S. said she picked a fight with him and said, “I’m done.” She said he called her again a few days later and she was angry because he had hurt her. She said he apologized and asked if he could make it up to her.
[116] The next contacts were in about December 2013 or January 2014. According to C.S., she received Facebook notifications for “game invites” which she said annoyed her. He sent her his new phone number. She testified she called him once on that number. She told him to stop contacting her, to block her on Facebook, to “unfriend” her and delete her phone number. C.S. swore at him and told him she felt dirty and that he took away her innocence. M.B. eventually “unfriended” her meaning he took her out of his contacts. She unfriended him and deleted his phone number. There was no further contact between the two of them.
M.B.’s Evidence
M.B.’s Circumstances
[117] M.B. was born in Jamaica. At the time of trial he was 27 years of age. He has no criminal record in Canada or in Jamaica and has not been found guilty of any offences. In 2011 M.B. began working the overnight shift at Food Basics from 10:30 p.m. until 7:30 a.m. He finished working there in 2016. He was part of a crew of workers stocking shelves.
[118] M.B. testified he went to grade 10 in Jamaica where he was studying to get a trade. He stated that he spoke patois in Jamaica, which is a form of broken English. He said his teachers spoke to the class in patois. He never learned to properly read and write in English and he spoke patois when he arrived in Canada.
[119] In 2010, M.B. was sponsored by his mother to immigrate to Canada with his brothers, Steve and Rohan, and his sister. He contends he could read and spell in English in 2010 like a child in grade three. M.B. did not advance his education in Canada. He spent about two months in adult education and had a tutor once a week for three hours until he was arrested.
[120] M.B.’s evidence is that he now reads and writes English at about a grade 5 level. He testified his tutor used children’s story books for his lessons. He had difficulties reading them and had to go over the text many times to be able to read. M.B. described himself as “slow” in that he would have to try to sound out each word in order to read and spell words. M.B. testified he had to rely mainly on help from his brother, Steven, his sister and friends when he was required to read and write. He said by 2014 he “could not even write a good sentence.”
[121] Under cross-examination, Crown counsel challenged M.B. on his evidence about his skills in reading, writing and spelling in English.
[122] Crown counsel asked if he saw a date, could he read it. M.B.’s response was that when his brother first helped him set up his Facebook account in 2010, and during 2013, he would need help with reading dates.
[123] Crown counsel directed M.B. to C.S.’s September 2015 Facebook profile page that was entered in evidence. She pointed to the date “January 19, 1998” and asked M.B. if he could read it. He answered that today he can read it. But in 2013 he could not read or spell the word “January” despite the fact that the word is pronounced the same in English and patois. He said that around 2015 his grandfather was helping him by going over months and years with him.
[124] The Crown asked M.B. to spell the word “vibes” and he spelled it “v-i-n-e”. He was asked why he used the sound of the letter “b” instead of “n”. M.B. responded that he cannot spell the word. He said he did not know whether the sound “n” is in the word “vibe”. In answering a question about whether he knew that “vibes” could be spelled differently, such as “v-y-b-z”, he was asked whether he would know if it was spelled correctly. He answered “no” because he does not know how to spell it correctly. He was asked to spell the word “birthday”. M.B. spelled it “b-i-r-n-k-d-a-y”. He said the letters “nk” sound as “nn kuk”.
[125] The Crown entered into evidence pages from M.B.’s Facebook profile from 2011 and 2012. Counsel went through a number of posts and messages and queried how they were posted on his account. M.B. explained that many functions on Facebook have symbols the meaning of which he memorized and which required just pressing on the symbol. M.B. did not have to read certain words. He would rely on the symbol of a blue light which allows a recipient to “accept” a message and the red light which allows the person to “decline” a message. When Crown counsel asked questions about how he knew who was on his Facebook pages if he could not read their names, he responded that he would recognize them by their photos.
[126] M.B. said his brother, Steven, or his sister would have to help him read messages and answer them. He said if he received a message when neither of them was around, for instance, when he received a message on his phone, he would wait until he was with them to get their help reading messages and answering. M.B. would often go into his Facebook account when he was at home either by using his cell phone or a desktop computer. Usually his brother or sister was there to help him. He would get the assistance of his friend, Marlin, or his brother, Rohan, when he was at Food Basics.
[127] The Crown pointed to some messages and responses by him where the related messages and responses came close in time. The query was, if he required help with reading messages and responding to them, how it was that some of the responses would be made immediately after the message. M.B.’s response was that when that was the case it means his brother or sister was with him or he was with his co-workers at work. M.B. testified the first time he posted on Facebook by himself was in 2016.
Initial Contact with C.S.
[128] M.B. testified he first made contact with C.S. through BBM. He said he had his PIN broadcasted so contacts would send it around to their friends. He received an “invite” from C.S. and he accepted it. At first he just saw her PIN with no name or profile picture. He was new to BBM at this time. He said he knew to press the blue button to accept and red button for decline. A profile came up with a name and an upper body photo. He stated that he could not read the name. He said he could not tell how old she was by the small profile picture.
[129] M.B. testified he could not spell to send a BBM message so he sent a voice note. He explained that a person presses on a little microphone symbol in the BBM application and presses “send” to send it to a contact. He testified that at this point in time he had never sent a message in words or text. He testified that in his voice note he asked questions like: “How old are you?” “Where are you from?”
[130] M.B. testified later he communicated with her by BBM messenger or texting after they began talking on the phone. Contrary to C.S.’s evidence M.B. also said he never communicated with her through Facebook.
[131] M.B. stated that he received a response the same day from C.S. In a voice note she said she was 18 years old and from “VP”. M.B. testified he had to ask his sister what “VP” means and she told him Victoria Park. They continued to talk. She asked him where he was from and he told her Scarborough and, where he was originally from, and he told her Jamaica. She asked him his age and he said he told her age 22.
[132] M.B. testified they spoke every day for the next week, first by voice note and then they exchanged phone numbers and communicated by phone. He said they stopped talking until the fall of 2013. They got back in touch by phone and decided to meet. He said it was C.S.’s idea to meet. M.B. testified about meeting at the library. He went with his brother, Steven, and met C.S. and her friend, Sophyah, there. It was a Friday and he was off work that day. They met around 4:00 p.m. to 5:00 p.m. and talked for about two hours.
[133] M.B. described C.S. as being taller than him, wearing tights and high heels and makeup. There was no discussion about how old C.S. was. C.S. admitted she is taller than M.B. with or without heels. She denied wearing makeup and high heels. He said he thought she looked to be 19 years of age. M.B. testified that C.S. told him she was not in school and that she worked overnight with her mother delivering newspapers to hotels. He confirmed C.S.’s evidence about her hours of work.
[134] M.B. testified that after the library meeting he continued to talk to C.S. almost every day at midnight for two to three hours while both were working their overnight shifts.
[135] M.B. testified about C.S.’s invitation for him to meet her mother. He confirmed that C.S. introduced him to her mother and that they went into C.S.’s bedroom because he was afraid of the dog. He stayed at the apartment for about one-and-a-half hours. C.S. then accompanied him downstairs and they had a light mutual kiss. C.S. called while she was on route home in a cab and they continued to talk every day. They planned to meet at his place. According to M.B., the first meeting happened two or three weeks after the meeting at C.S.’s apartment.
The First Incident
[136] Contrary to C.S.’s evidence, M.B. said the plan was for C.S. to go over to his apartment and watch a movie in his room. According to M.B., the night before they had talked about whether she was ready to have sex and she said she was. She called M.B. at around 3:00 p.m. the next day. He told her he would pay for a taxi for her to his apartment. M.B. testified that he was sleeping when she arrived because he had gotten off the overnight shift that morning.
[137] M.B. confirmed that C.S. went into his bedroom and that his niece and nephew followed. His brother took the children out and closed the door completely. Contrary to C.S.’s evidence, M.B. testified there was no lock on the bedroom door. After the kids left the room he and C.S. sat on the edge of the bed watching TV. She was wearing tights, running shoes and a top. He was wearing basketball shorts and a T-shirt and no shoes. They did not end up watching the movie. They started kissing.
[138] Contrary to C.S.’s evidence, M.B. testified they whispered about whether she was ready and she said she was. He took off his basketball shorts and went to get a condom. He said she kicked her shoes off and went onto the bed and laid on her back. Unlike C.S.’s testimony, M.B. said she took off her tights. She left her blouse on. They were kissing and they decided to have sex. He lie between her legs and, contrary to C.S.’s evidence, he put on the condom. He said he put his penis into her vagina and she said nothing. According to M.B., C.S. did not resist. She did not say she was uncomfortable. He denied telling her it was no big deal.
[139] Contrary to C.S.’s trial testimony in-chief but similar to her preliminary inquiry evidence, M.B. testified they had intercourse again and they switched to “doggy style”. She lay on her side and he lay on his side behind her. He put his penis into her vagina and ejaculated. He then took the condom off and put on his shorts. She put her clothes back on.
[140] M.B. testified about his brother Steven’s two friends. Contrary to C.S.’s account, M.B. testified his brother and his two friends went out to the balcony to smoke a joint, not into the bedroom. He stated that he did not smoke with them because he does not smoke. M.B. returned to the room where C.S. was watching TV with the kids.
[141] M.B. called her a taxi and she left at about 7:30 p.m. Contrary to C.S.’s evidence about her anxiety being around people, M.B. stated that while she waited for the taxi for five to ten minutes, she was in the living room with his family members. According to him, she also stopped to talk to his family members when she arrived there that night.
[142] M.B. confirmed C.S.’s evidence that they spoke on the phone while she was in the taxi. She called him when she arrived at her apartment. He said she was happy when he spoke to her. They spoke every night at midnight from work until they met again at his apartment on his birthday two weeks later.
The Second Incident
[143] M.B. testified C.S. asked him what he was doing for his birthday. He told her he would be staying home and hanging out with his brothers and his brother’s friends. Contrary to C.S.’s evidence, M.B. testified C.S. asked him what he wanted for his birthday and he said it did not matter. He said he did not invite her to the party. She told him she might come to his party. She told him on the day before that she was coming to his party and he said it was okay.
[144] Also, contrary to C.S.’s evidence, M.B. testified C.S. volunteered to take public transit telling him she was familiar with the area. He gave her directions to his apartment building over the phone while she was on route. He said she was in a good mood when she arrived. He testified she did not have any bad words for him at any time before the birthday party.
[145] M.B.’s older brother and his kids and his brother’s friends were in the living room. Steven had not returned from school as yet. M.B. testified that C.S. went into the living room and then directly into his bedroom. He took C.S. into the bedroom to watch TV and told her he would be back and that he wanted to speak to the guys in the living room and to wait for his brother to come home. Steven did not come home.
[146] M.B.’s sister’s friend called and told them Steven had been arrested for being in a fight. He was at 43 Division. They learned he would have a bail hearing the next day. One-and-a-half hours had passed from the time C.S. arrived and when he found out about Steven’s arrest. Contrary to C.S.’s evidence, M.B. indicated there was no sexual activity. He would periodically go into his bedroom to check on C.S. but he did not stay there. He told her his brother was in trouble and he had to spend time away from her dealing with it. C.S. did not come out of the bedroom. M.B. testified she was watching a movie.
[147] According to M.B., C.S. remained at the apartment for three to four hours. He said that she indicated she wanted to go home and wanted to take a bus because it was cheaper. M.B. and three of the guys at the apartment walked her to the bus stop. They hugged and kissed according to M.B. C.S. called him when she got home. He testified she was not upset.
[148] According to M.B., they continued to communicate by phone every night from work. Then the calls began to taper off. Around December 2013 M.B. began to talk to someone else. Eventually he and C.S. stopped talking. They did not argue before they stopped talking. She did not call him names. M.B. said he did not send her game invites or a new phone number.
ANALYSIS
R. v. W.D. Legal Framework
[149] When assessing credibility in a judge-alone trial, I must remind myself of the basic principles set down by the Supreme Court of Canada in R. v. W.D.
- First, if I believe the evidence of the accused, I obviously must acquit.
- Second, if I do not believe the testimony of the accused but I am left in reasonable doubt by it, I must acquit.
- Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am satisfied beyond a reasonable doubt by that evidence of the guilt of the accused.
R. v. W.D., [1991] 1 S.C.R. 742
[150] The test in R. v. W.D. guides the tier of fact on how to apply the burden of proof of beyond a reasonable doubt to the issue of credibility. The tier of fact must assess the evidence of a witness in the context of the totality of the evidence presented at the trial. The evidence of one witness must not be evaluated in a vacuum. A trial is not a place for a credibility contest between witnesses. It is not the province of a trial judge to prefer a Crown witness’s testimony over the testimony of the accused. The burden always rests with the Crown to prove the offences against the accused beyond a reasonable doubt: R. v. S.J.D., at paras. 29-30.
C.S.’s Credibility and Finding on the Second Incident
[151] I have a great deal of reservation about C.S.’s credibility. There are a number of areas of concern, but I will focus here on those I found most troubling and which together, I conclude, raise a reasonable doubt.
[152] I am particularly concerned with C.S.’s evidence in relation to the second sexual encounter that she alleges occurred on M.B.’s birthday. I find C.S.’s evidence raised substantial doubt as to whether that incident even occurred at all. This finding ultimately goes to the Crown’s capacity to prove M.B.’s guilt of one of the charges of sexual assault and his guilt of one of the charges of sexual interference.
[153] I arrive at my conclusion in the context of not only C.S.’s credibility problems in relation to the birthday incident but also in consideration of her overall credibility problems in other areas of her evidence and in the further context of all the evidence before the court.
[154] I go first to M.B.’s circumstances at the apartment on his birthday. I believe M.B. did not originally expect C.S. to come to his gathering that afternoon. He told her he was going “to chill” with his friends and family and have some drinks. The gathering consisted of M.B., his older brother and some of Steven’s male friends. Steven was expected to arrive after school so he and M.B. could go to the LCBO to buy drinks. It seems reasonable to imagine there would be no place for a woman at the party. I believe C.S. invited herself and M.B. relented allowing her to come over.
[155] I believe M.B. took her to the bedroom and originally left her alone so he could go into the living room to talk to the guys. After all, he had planned to have a celebration with the guys. He would check on her occasionally as she watched TV to see if she was all right. I believe he was waiting for Steven to arrive and when Steven, with whom he was very close, did not arrive he got concerned. C.S. confirmed in her evidence that she did not see Steven among the people in attendance.
[156] I accept M.B.’s evidence that he received a call informing him that Steven had been arrested for fighting at school and was at 43 Division. I do not doubt that the Crown would not have hesitated to adduce contrary evidence if there was no such occurrence filed at 43 Division, if Steven had not been arrested. It is not hard to believe that attending to Steven’s arrest would have consumed M.B.’s attention. That was his 15-year old brother with whom he was very close.
[157] I accept as reasonable that he would not have had the disposition to spend time with C.S. or to have a sexual encounter. C.S. did confirm M.B.’s evidence that he came into the bedroom to tell her, without details, that Steven was in trouble.
[158] Although not a big point, also related to the birthday incident, is that C.S. insisted in testimony that she did not get M.B. a birthday gift because he did not deserve one. She was angry with him. The defence confronted her with her evidence from the preliminary inquiry that she took a teddy bear from a closet at her house and was planning to give it to him as a present. In answer to this contradiction she told the court that what she said at the preliminary inquiry was correct.
[159] In addition to her continued communications with M.B. and her view that he was still her boyfriend after the first incident and her inviting herself to the party, the plan to give him a gift suggests she was not angry with him after the first incident as she insisted she was.
[160] I am not prepared to accept C.S.’s evidence. I find that the sexual encounter on C.S.’s birthday did not happen. What I find this demonstrates is C.S.’s capacity to fabricate a very elaborate story, complete with explicit details, about a sexual episode between herself and M.B. that simply did not take place.
[161] I am fortified in my disbelief in this area of her evidence by credibility problems in other areas.
[162] At trial she contradicted her preliminary inquiry evidence about changing sexual positions during the second episode of the first incident. When confronted with the contradiction in her evidence she admitted she gave different evidence at the preliminary inquiry than at trial. She testified she gave those answers at the preliminary inquiry and they were true. Her preliminary inquiry evidence happens to be consistent with M.B.’s evidence. When asked if her evidence at trial was a mistake she said she did not know. She did not give an explanation for the divergence in her evidence. I think an explanation was required.
[163] There is the further problem, when looked at in the context of C.S.’s other credibility problems, of her circumstances when she testified at the preliminary inquiry.
[164] C.S. did not testify behind a screen; she did not have to write things down; she gave explicit details about the sexual acts without pausing or requesting a break; she testified before a male judge while being asked questions by a male Crown counsel. There was a male defence counsel. There was a female judge and Crown counsel at trial. Further, C.S. was at a more vulnerable age at the preliminary inquiry, being two years younger than she was at trial.
[165] While she agreed that those were the circumstances at the preliminary inquiry, and while she was entitled to the accommodations she received at trial, she offered no explanation for not requiring accommodations in seemingly more vulnerable conditions at the preliminary inquiry. Again, I think an explanation was required. She gave none. It is not for the court to speculate about this.
[166] In determining who I believe about what happened on M.B.’s birthday, I considered that M.B. did not attempt to persuade the court that he never at any time had a sexual encounter with C.S. He did not try to hide the fact he had two sexual episodes with her during the first incident. M.B. was very frank and forthright in details about that encounter. So he was not trying to show himself as totally virtuous. This lends credibility to his version of his birthday. In these circumstances, I find it reasonable to expect he would have admitted to a second sexual encounter a couple of weeks later if it had occurred.
Conclusion
[167] On the totality of the evidence, I can only conclude C.S.’s credibility problems cast a veil of skepticism on M.B.’s guilt of one of the sexual assault charges and one of the sexual interference charges. I accept M.B.’s evidence that there was no second incident. He did not have a sexual encounter with C.S. on his birthday.
[168] In the result, I find the Crown did not prove beyond a reasonable doubt M.B.’s guilt on one count of sexual assault under s. 271 of the Criminal Code and one count of sexual interference under s. 151 of the Criminal Code.
The Law on Young Persons and Sexual Offences
[169] There remain two charges on the indictment related to the first incident, an allegation of sexual assault and an allegation of sexual interference. I will deal with findings on the two remaining offences.
[170] Pursuant to s. 150.1(1) of the Criminal Code, a young person under age 16 lacks the legal capacity to consent to sexual activity. There is no dispute that C.S. was age 15 when the conduct giving rise to the allegations occurred. The Crown is not required to prove that M.B. knew how old C.S. was at the time of the sexual activity. Pursuant to s. 150.1(4) of the Criminal Code, it is not a defence that an accused believed that the complainant was 16 years of age or older unless the accused took “all reasonable steps” to ascertain the age of the complainant.
[171] “Reasonable steps” must be assessed in the factual context, to be evaluated on the specific circumstances of the case. “All reasonable steps” must be assessed on the standard of an objective and reasonable person: R. v. Thain, 2009 ONCA 223, at paras. 43, 46 and 47. The test is the steps that a reasonable person would take in the circumstances to ascertain a complainant’s age: R. v. Dragos, 2012 ONCA 538, at paras. 65 and 66. “What constitutes ‘reasonable steps’ in a given case is a fact-specific inquiry that turns on the circumstances of the case”: R. v. Dragos, at para. 32.
[172] Courts have identified a non-exhaustive number of factors for considering the reasonableness of an accused’s assessment of a complainant’s age:
a) knowledge of or familiarity with the complainant; b) physical appearance; c) age and appearance of the complainant’s associates; d) age differential between the accused and the complainant; e) demeanour of the complainant; f) the time and location of the alleged sexual assault; and g) any other relevant times or places.
[173] The less familiar the parties are the more steps that are required to confirm there is consent to sexual activity: R. v. Crangle, 2010 ONCA 451, at para. 29; leave to appeal refused 416 N.R. 390 (note) (S.C.C.).
Application of the Law to the Case at Hand
M.B.’s Credibility
[174] M.B. testified that his education from Jamaica did not give him the skills to speak English properly. When he came to Canada he spoke mainly broken English. He could not read, write or spell beyond the level of a child in primary school. His evidence is that in 2013 he read at about a grade 5 level and could not read “a good sentence”.
[175] M.B. denied being illiterate but described himself as “slow”. He stated that in 2013 and today it takes him a long time to read and spell. He has to sound out each word. M.B.’s evidence was that even if he saw C.S.’s Facebook account he would not be able in 2013 to read months of the year and other words so as to be able to read her date of birth and the other content on the profile.
[176] Crown counsel concentrated on this area in her attack on M.B.’s credibility. Crown counsel questioned M.B. strenuously about his literacy skills suggesting to him that his skills were not as poor as he tried to present to the court. She queried how he was able to read and send the BBM messages and read and send his 2011/2012 Facebook messages on his phone and computer if he was so lacking literacy skills. M.B.’s response was that he relied on his brothers, sister and a friend to assist him with this. If no one was around to assist him he would wait until he could get their help.
[177] I cannot say I am clear on M.B.’s level of intelligence and literacy. There were no literacy or aptitude assessments of M.B. before the court. All I have is M.B.’s testimonial evidence and my observations of his demeanour and manner on the stand. It could be that M.B. exaggerated somewhat or perhaps he did not.
[178] What I did observe in M.B. was someone who very consistently over two days on the witness stand demonstrated a very modest level of comprehension of basic concepts, words and expressions. He often misapprehended the meaning of questions and asked for questions to be repeated. I found his verbal skills and grasp of abstract concepts were not to the standard of a person who attended a conventional secondary school in Canada. I find M.B. credibly answered Crown counsel’s numerous challenges to his spelling, reading and pronunciation abilities.
[179] M.B. only attended school in Canada for two months and had a tutor once a week until he was arrested in 2015. I did not get the impression that he was feigning ignorance or low intelligence. I find it believable that he would have had difficulty reading, spelling and writing in 2013. He displayed evidence of these problems over four years later at this trial.
[180] I believe M.B.’s evidence that he required considerable help in communicating on BBM messenger. I believe that he rarely, if ever, communicated on Facebook messenger with C.S. and communicated most frequently by phone. I did not feel he was putting on an act. It is not much of a credit or a source of pride for him as a 27-year-old man to have to admit in public court and before strangers that he is slow. I considered this in the context of the strength of his evidence in other areas.
Did M.B. Make All Reasonable Efforts?
[181] M.B. does not deny having a sexual encounter with C.S. during the first incident two weeks before his birthday. There is no defence of consent available. M.B. raises the defence of mistake of age. It is the Crown that bears the onus of proving that M.B. failed to take sufficient steps to determine C.S.’s age. A contextual analysis is required. The “reasonableness” of the steps taken to ascertain the age of the person must be assessed in context: R. v. Thain, at para. 37.
[182] M.B. testified that in a BBM voice note in their early communications C.S. told him she was 18 years of age. C.S. testified she told M.B. by BBM that she was 15 years of age. C.S. stated that she never told M.B. face-to-face that she was age 15. C.S. testified she did not give M.B. a false age.
[183] C.S. testified that she had her proper age and date of birth on her Facebook page. However, she indicated that when she first posted her profile for M.B. to view, she only provided her name and a profile picture. The Crown filed a profile page from C.S.’s Facebook account that contained C.S.’s date of birth, January 19, 1998. However, that profile page was from September 2015, two years after the alleged offences.
[184] M.B. stated that he never communicated with C.S. by Facebook messenger. C.S.’s evidence was not so clear. But it appears that her evidence is that they communicated by Facebook infrequently. Both witnesses’ evidence is that they communicated mostly by BBM messenger and phone. M.B.’s evidence suggests that during his relationship with C.S., he did not access C.S.’s Facebook page and the information on it. In any event, there is no evidence before the court that C.S.’s Facebook account contained her true age and date of birth during the period from January 2013 to October 2013 when C.S. and M.B. were communicating.
[185] C.S. perpetrated a serious fabrication about being sexually assaulted on M.B.’s birthday. To my mind that demonstrates an immense propensity to be dishonest, to be complacent in regard to the importance of being truthful to the court. She has made a very serious allegation which would have a profound effect on M.B.’s life. In the circumstances on the evidence on a whole, I am prepared to accept M.B.’s word that C.S. told him she was age 18 when they first connected by BBM.
[186] The question then becomes whether M.B. took all reasonable steps to ascertain her true age.
[187] M.B. testified he thought C.S. actually looked 19 years of age. He testified, and C.S. agreed, she was much taller than him with or without high heels. I do not believe either witness was asked their height. But from my close observation from the bench C.S. was clearly taller than him.
[188] M.B. testified when he met C.S. at the library, she was wearing makeup and high heels and this made her look older than age 15. He said she looked older than him and he was age 22 at the time. C.S. denies this. She says she was not wearing makeup or high heels. She was wearing running shoes. She testified that M.B. told her he was age 17, which M.B. denies.
[189] Crown counsel questioned why M.B. did not come to think C.S. was younger when he and his brother met her and her friend, Sophyah, at the library. Crown counsel posed to him that Sophyah was 14 years of age. M.B. responded, and there is no evidence otherwise, that he was never told Sophyah’s age. M.B. added that he would have never thought Sophyah was age 14 because she was actually taller than all three of them.
[190] Again, on all the evidence, I am inclined to believe M.B. that C.S. was wearing high heels and makeup and that M.B. told C.S. his true age of 22 years.
[191] Crown counsel questioned M.B. about his attempts to ascertain C.S.’s age. He agreed with the Crown that he only asked C.S.’s age once. She asked him whether after he met her personally on a number of occasions he ever asked her about her age and he responded “no”. He agreed that C.S. was a complete stranger to him and he did not inquire about her age again.
[192] M.B. responded that he did not ask about her age again because she looked older. As well, he pointed out that she was not attending school as a 15 year old person would be. She was working with her mother on an overnight shift like he was. He would speak to her every night from midnight for several hours when they were at their respective jobs which he would not expect of a younger person. He testified he also never thought of asking her age because she said she was age 18, because of her life circumstances and how she physically appeared to him.
[193] In addition, I considered the fact that C.S. introduced M.B. to her mother as her boyfriend. There is no evidence the mother raised any questions about M.B.’s age. Furthermore, the mother allowed her daughter and M.B. to go into the daughter’s bedroom and spend time on her bed with him with the bedroom door closed for over an hour. This, I find, would reasonably add to the other reasons M.B. could reasonably think that C.S. was an older person.
CONCLUSION
[194] C.S. told him she was 18 and he believed her. He even thought she could be older than that. The circumstances of her life, her appearance, not attending school, working the overnight shift and speaking every night to him by phone for hours until the early morning hours, I find, reasonably supported the belief that she was 18 or 19. She was doing an overnight job the same as he was and he was age 22 at the time. I find it was reasonable for M.B. to have only asked about her age once during their ten-month relationship because her surrounding circumstances reasonably supported his view that she was age 18.
[195] I find that even if he had accessed C.S.’s Facebook profile and he could read dates, I do not feel confident, given her grave credibility problems that C.S. would have put her true age on her Facebook profile.
[196] I conclude in the context of all the facts that the Crown did not satisfy its burden to prove that M.B. did not take all reasonable steps to ascertain C.S.’s age.
[197] The Crown has failed to prove beyond a reasonable doubt M.B.’s guilt of the sexual assault and sexual interference charges related to the first incident. Nothing in the evidence raises a reasonable doubt about his innocence of those charges.
VERDICT
[198] For the foregoing reasons, I am satisfied the Crown has not proven M.B.’s guilt beyond a reasonable doubt on counts 1, 2, 3 and 4 on the indictment.
[199] I find M.B. not guilty on counts 1 to 4 on the indictment and acquittals will be entered accordingly.
B.A. ALLEN J. Released: July 6, 2017