ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: Her Majesty the Queen v. R.P, 2017 ONSC 6232
COURT FILE NO.: CR 17-075-0000
DATE: 20171019
BETWEEN:
Her Majesty the Queen
Andrea Camiletti, for the Crown
- and -
R.P.
Jill Gamble, for the Accused
Accused
HEARD: October 13, 16 & 17, 2017
REASONS FOR JUDGMENT
Conlan J.
I. Introduction
[1] The truth can be stranger than fiction. If that expression was an elastic band, it would be stretched as far as possible, maybe further, in this case.
[2] According to Ms. L.W., she was sexually assaulted by a near-stranger, Mr. R.P., inside her Meaford, Ontario home on August 20, 2016.
[3] The facts alleged by L.W. are bizarre, to say the least. A summary follows.
[4] She was at a local bar in Meaford a couple of nights before the attack. While heading home, she encountered on the street a man whom she later discovered is R.P., totally unknown to her at the time. The man appeared to be in some distress and said something about having lost his bank card. He also wanted somewhere to drink alcohol.
[5] Surprisingly, L.W. invited the strange man to her home, where she lived alone except for her dog. They went inside. He stayed for a while and drank alcohol. He was extremely drunk, incoherent actually. He eventually left.
[6] Two nights later, on August 20th, L.W. was at home getting ready for bed. Her bed is near a sliding glass door at the rear of the property. Suddenly and unexpectedly, the same strange man poked his head through a small opening in the door and asked L.W. to accompany him to the same bar that she was at before their first encounter on the street. Although she had already been at that bar earlier in the afternoon on August 20th, as he seemed less incoherent than two nights earlier, and as he offered to buy her two of her favourite drinks, she agreed to go.
[7] They rode their bicycles to the bar.
[8] Once there, the man got really drunk again. So she decided to leave. Another man named Brett offered to take her home.
[9] Just like she had with R.P. two nights earlier, L.W. invited Brett inside and poured him a drink of booze. Brett left after a short period of time.
[10] L.W. went to sleep. She was drunk. She was tired.
[11] The front glass sliding door was locked. The main front door was locked. The other unused door near the front was locked. But the rear glass sliding door near L.W.’s bed was unlocked and open.
[12] Sometime after midnight, while she was asleep, R.P. showed up. He was inside her home, near her bed. He said “hi”, and she replied the same. She went back to sleep. L.W. next saw him between her “spread-eagle” legs. He was naked. She felt a very sharp pain. He inserted into her vagina a small white bottle believed to contain lotion or cream. He then pulled it out. She screamed twice. She was yelling at him to get out.
[13] He put on his boxer shorts and got into the bed beside her. Because he would not leave, she went to the nearby couch to continue sleeping.
[14] At some point, he offered her a drink. She took a sip of what contained vodka and orange juice, which she believes was what she had poured earlier for Brett.
[15] She went back to sleep. While she was sleeping, he left.
[16] On August 22nd, strictly at the urging of her boyfriend and because she thought that R.P. had again entered her home uninvited while she was out of town on the 21st, L.W. reported the alleged sexual assault to the police.
[17] The strangeness continued, however.
[18] On August 26th, R.P. showed up at her house again. He broke in through the rear sliding glass door, which this time was locked. He sat on a chair and was talking gibberish. She called 9-1-1 from her bathroom. The recording of that call was played in Court. It reveals a relatively calm L.W. who elects to disconnect from the operator while awaiting an officer to arrive. The police responded.
[19] R.P. is charged with two offences. Count one is sexual assault. The formal charge reads:
HER MAJESTY THE QUEEN PRESENTS THAT R.P., on or about the 20th day of August, 2016, at the Municipality of Meaford in the said region, did commit a sexual assault on L.W., contrary to Section 271 of the Criminal Code of Canada.
[20] The real issue in this case is whether the events alleged to form the basis of the crime charged ever took place.
[21] It is for Crown counsel to prove beyond a reasonable doubt that the events alleged in fact occurred and that R.P. was the person involved in them. It is not for the accused to prove that these events never happened. If I have a reasonable doubt whether the events alleged ever took place, I must enter an acquittal.
[22] Normally, in a sexual assault trial, the Crown must prove eachof these essential elements beyond a reasonable doubt:
i. that the accused intentionally applied force to the complainant;
ii. that the complainant did not consent to the force that was applied;
iii. that the accused knew that the complainant did not consent; and
iv. that the force that the accused applied took place in circumstances of a sexual nature.
[23] Failure to satisfy any of those essential elements will result in a finding of not guilty.
[24] In this case, however, as indicated above, the only issue is whether the sexual contact occurred on August 20th, as described by L.W. This case has nothing to do with consent and/or honest but mistaken belief in consent.
[25] R.P. is also charged with breaking, entering and committing a sexual assault. The formal charge reads:
HER MAJESTY THE QUEEN PRESENTS THAT R.P., on or about the 20th day of August, 2016, at the Municipality of Meaford in the said region, did break and enter a certain place to wit; a dwelling house situate at “x”, Meaford, ON and did commit therein the indictable offence of sexual assault, contrary to Section 348(1)(b) of the Criminal Code of Canada.
[26] For me to find R.P. guilty of that offence, Crown counsel must prove, beyond a reasonable doubt, both the break and enter and the sexual assault. Otherwise, the accused shall be found not guilty.
[27] Obviously, an acquittal on count 1 necessarily means that there must be an acquittal on count 2.
[28] The Crown invited this Court to consider a finding of guilt on the lesser and included offence of being unlawfully in a dwelling. That would appear to be a rather curious result, in my view. The Court would believe L.W.’s evidence about the unlawful entry into the home on August 20th but then disbelieve nearly everything else relayed by the complainant about that encounter. I suppose that anything is possible.
[29] Of course, R.P. is presumed to be innocent of both charges. He has no burden to prove anything. The burden of proof rests entirely with the prosecution. The standard of proof, beyond a reasonable doubt, is higher than proof of probable or likely guilt. Unless I am sure that the accused committed the offence in question, he must be acquitted.
[30] This short trial occurred in Owen Sound, without a jury, on October 13 and 16, 2017. Submissions by counsel were made on October 17th.
[31] For the Crown, I heard from L.W., the police officer who interviewed L.W. and who seized two exhibits from her home, the bartender on August 20th, a server on August 20th, and the police officer who responded to L.W.’s home on August 26th.
[32] The interviewing police officer, Detective Constable Page, visited L.W.’s home on August 23, 2016. She was given by the complainant a small bottle of lotion or cream as the suspected item used in the sexual assault. Also handed over were Blundstone size 9 insoles which were allegedly left at the home by R.P.
[33] According to the bartender, Bradley Mear, L.W. is a regular, basically daily, customer. She was at the bar with R.P. on the night in question. The accused was cut-off drinking but was not drunk to the level described by L.W. in her trial evidence.
[34] The server, Nicole Myslik, confirmed that L.W. and R.P. were both at the bar on August 20th, although seemingly not together. Ms. Myslik confirmed that L.W. is at the bar on almost a daily basis.
[35] Constable Vanderwoude confirmed that he saw and dealt with R.P. at the home of L.W. on August 26th. The accused was cooperative when told to leave. Directly contrary to what L.W. testified to, R.P. was lucid and clear-speaking. There were no signs of intoxication. He was, however, wearing Blundstone boots.
[36] The Defence called no evidence at trial.
II. Analysis
[37] There are a myriad of weaknesses in the evidence of L.W. Frankly, there are too many to enumerate.
[38] First, she testified in a careless manner.
[39] For example, she stated in direct examination at trial that she frequently told others who visited her home to use the main front door because she had prior experience with persons, including first-visit contractors hired to do work at her home, trying to gain entry through the rear sliding glass door by her bed.
[40] When this Court tried to clarify why in the world a stranger would go through a closed gate and into her backyard, walking right past two plainly obvious front doors, L.W. stated that she meant the sliding glass door at the front of her house.
[41] But that makes no sense because her bed is near the rear (and not the front) sliding glass door.
[42] Second, L.W.’s evidence at trial was materially inconsistent with what she told the police on August 22, 2016.
[43] For example, at trial she referred to the man who walked her home from the bar on August 20th as “Brett”, while she called him “Jim” throughout her police statement. There is not a single mention of the name “Brett” in the police statement, even though L.W. testified that she got the man’s name on August 20th and put it into her cellular telephone that night.
[44] Perhaps she was too drunk to ever remember his name on August 22nd. Then why give any name? And why “Jim”?
[45] Further, in cross-examination at trial L.W. stated that she could not remember anything about what type of person Jim/Brett was, other than a generally nice fellow. And she could not remember telling the police officer any further details about the man. Nothing.
[46] It turns out, though, that she went on at length about the man over two pages of transcript of the police interview, including things that one would think are awfully hard to forget such as that Jim and/or his father knew John Gotti, the notorious mob boss from the United States.
[47] Also, L.W. clearly testified in direct examination at trial that she was at the bar in the afternoon on August 20th, while she told the police officer in her statement that she could not remember if she was there or not at that time.
[48] As well, in her police statement L.W. said that she felt something when her pants were removed on August 20th but did not say or do anything because she was very tired, yet she testified at trial that she did not feel anything when that occurred.
[49] In addition, and most important, L.W. told the police officer in her statement that the sharp pain that she felt in her vaginal area on August 20th could have been from a thumbnail, which is not at all what she stated in direct examination at trial.
[50] She went on to tell the police officer in her statement that the object that was inserted into her vagina was probably put back inside the accused’s pants, which is totally at odds with it being placed onto the nearby coffee table as she stated in direct examination at trial. It is also flatly inconsistent with the accused being naked, something testified to by L.W. at trial.
[51] Third, what L.W. told the police on August 22nd was, itself, internally inconsistent on crucial matters of fact.
[52] For example, in the space of just a few lines on page 52 of the transcript, L.W. said that the accused was both wearing pants and was not wearing pants but rather was naked on August 20th. She also waffled on what happened with the object that was inserted into her vagina.
[53] Fourth, what L.W. testified to at trial was also internally inconsistent on material items.
[54] For example, in direct examination L.W. stated that she felt safe having Brett inside her home on August 20th because she knew that he was married and had children, though she said in cross-examination that she only learned that information about Brett sometime after August 20th.
[55] Further, L.W. admitted in cross-examination that Brett asked her to have sex with him on August 20th, while not a whiff of that was mentioned in direct examination. Instead, Brett was portrayed as a family man who never intimated a thing about sexual activity.
[56] Fifth, L.W.’s evidence at trial is inconsistent with, at times directly contrary to, other evidence that I accept.
[57] For example, I believe the police officer who responded to the 9-1-1 call that R.P. was lucid and clear-speaking, which is totally contrary to L.W.’s evidence that the accused on that date was completely incoherent and babbling in gibberish diatribes.
[58] Sixth and finally, L.W.’s demeanour at trial was so strange that it makes me wonder whether she was drunk while in the witness box (the evidence establishes that she is likely an alcoholic), despite her saying on the first day of her testimony that she had not consumed any alcohol that day, or that she was suffering from some other type of impairment while in the Courtroom (perhaps the brain infection that she spoke about and which she takes medication for).
[59] In any event, her account cannot be relied upon.
[60] It is not this Court’s intention to appear rude to or belittle L.W. Nor is it necessary to find that she is a liar. I make no such finding.
[61] But this Court has an obligation to give fulsome reasons for not placing any weight on the evidence of a witness, and demeanour, although never the sole or even the most important indicator of testimonial veracity, is just part of the puzzle in this case.
[62] This was far beyond the expected nervousness and uncertainty of most Courtroom guests.
[63] There were times during L.W.’s trial testimony that the listener might have harkened back to the voice of Rod Serling. It was just plain bewildering. Much more than “odd”, as described by the Crown in closing submissions.
[64] For example, when she stated that she wants back the very bottle that was inserted into her vagina because that product is expensive. In fact, when she surrendered the evidence to the police officer, she used some of the lotion or cream on her hands immediately before handing it over.
[65] As another example, L.W. stated at trial that she had no idea that what happened to her on August 20th was a sexual assault in any way. That is why she did not report it to the police right away. Remember, according to L.W., she was asleep when a strange man busted into her home, got naked, pulled down her clothing, spread her legs wide open and stuck something into her vagina.
[66] I do not expect L.W. to know the nuances of the criminal law, but surely she must have known that what was allegedly done to her was a crime.
[67] Further, L.W. had to be consistently told by this Court to not interrupt the questioner. In time, I essentially gave up.
[68] L.W. giggled and chuckled inappropriately at times. When looking over photographs of the alleged crime scene, as disturbing as that should have been given the account of what happened to her on August 20th, she smiled and stated out loud that she was admiring the pictures of her dog.
[69] L.W. rambled incessantly during her testimony about immaterial things like the history of a certain breed of dog. She wanted to demonstrate things that were clearly unnecessary to demonstrate. At one point, she exited the witness box and had a difficult time returning to it from only a couple of feet away. She appeared unsteady on her feet.
[70] Corroboration is of course not required, but here the evidence of L.W. is so weak that virtually no amount of corroboration on circumstantial matters, such as whether R.P. was at the bar on August 20th and/or whether he generally wore Blundstone footwear and/or whether he attended at L.W.’s home on the 26th of August, could raise the strength of the Crown’s case to one of proof beyond a reasonable doubt.
[71] That the accused was at the bar on August 20th is largely irrelevant.
[72] That he was wearing Blundstone footwear on August 26th is more relevant except that I am unable to find as a fact that the insoles seized by Detective Page were the size or even the approximate size of R.P., or determine how long they were inside L.W.’s home given its extremely messy condition and the number of guests that she appears to have inside her home, or determine whether the insoles belonged to L.W. herself.
[73] That he was at the house on August 26th is also more relevant except that nothing observed by the responding officer or said by R.P. suggests that the accused had been there before.
III. Conclusion
[74] Not only am I not sure that R.P. sexually assaulted L.W., I would not conclude that it is even likely that he did so. I am not confident that he was even at her house on August 20th.
[75] L.W. is not a credible or reliable witness. She was intoxicated by alcohol, very tired and in and out of sleep around the time of the alleged sexual assault. She had taken three percocets for pain that day, plus a pill for a brain infection. Her evidence suffers from a host of serious deficiencies, as outlined above.
[76] There is little else to the Crown’s case aside from L.W.’s assertions. And those assertions cannot be relied on to any degree.
[77] The accused is therefore found not guilty on both counts.
Conlan J.
Released: October 19, 2017
CITATION: Her Majesty the Queen v. R.P., 2017 ONSC 6232
COURT FILE NO.: CR 17-075-0000
DATE: 2017MMDD
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
R.P.
Accused
REASONS FOR JUDGMENT
Conlan J.
Released: October 19, 2017