COURT FILE NO.: CR17-0019 DATE: 2018-07-09 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – B.W.
Mr. D. Beaton, for the Crown Mr. J. Weppler, for the Accused
HEARD at Gore Bay : June 11, 12, and 13, 2018
Reasons for Judgment
A.D. Kurke J.
Overview
[1] The accused is charged on a single-Count indictment with the sexual assault of complainant M.J. on May 17, 2015 at Whitefish River First Nation, commonly also known as Birch Island, Ontario.
[2] It is alleged that after a night of drinking at a “Stag and Doe” and the house party that followed at the home of Robert McGregor (commonly called “Squab”), the accused handled and licked the breasts and vagina of the complainant, who had passed out in a bedroom at the house party. The accused denies any such contact with the complainant, and submits that her evidence is too unreliable to be accepted and that the Crown’s corroborative evidence is insufficient to establish the allegation beyond a reasonable doubt.
Facts
The Crown’s case
[3] At the opening of trial, the defence conceded the voluntariness of the accused’s exculpatory statement given to police on May 21, 2015. The Crown filed that statement on consent. In this statement the accused denied that anything at all happened with the complainant, especially as word would get back to the complainant’s mother and the accused’s wife. The accused conceded that his DNA could be in Robert McGregor’s (“McGregor’s” or “Squab’s”) bed, as he had passed out on that bed with Squab on a night over the weekend. The accused denied that his DNA would be found inside the complainant. The accused was extensively questioned by the investigator and maintained that he had no sexual contact with the complainant, although he did innocently hug her at some point. He admitted to drinking a lot, but insisted that he remembered everything pretty well.
[4] The complainant is a member of the Whitefish River First Nation, but now lives in Espanola. She was 28 at the time of trial, and 25 when the events of this case are alleged to have taken place. The complainant admitted that she was an alcoholic between the ages of 17 and 25, but insisted that alcohol generally did not compromise her faculties. Indeed, she claimed that she could recite the alphabet backwards while drunk.
[5] The May long weekend in 2015 began with a “Stag and Doe” at the Community Hall on Birch Island. The complainant had more than nine drinks there, including beer and vodka shots. She and several others then proceeded to McGregor’s home, and there were apparently others already at that home. The accused was also at McGregor’s. The complainant continued to drink with others in the basement, and had a lot of beer and wine. She was dressed in slacks, and a blouse over a tank top and a bra.
[6] The complainant was very drunk and stayed over the night. She testified that she asked Squab if she could sleep in his room. She has known Squab her whole life, and had slept there previously over the years a handful of times. She was able to get herself to Squab’s bedroom, and removed her top shirt. She went to sleep or passed out. She was positive that it was in Robert McGregor’s bedroom.
[7] The complainant awoke in the darkened bedroom with the accused on top of her, touching her breasts and vagina, and using his hands and mouth on her body. She had on no shirt or pants, though she believed that her bra was still on. She told the accused to stop. She knew that it was the accused from the sound of his voice. As he continued his touching of her, he mentioned being jealous of a former boyfriend of the complainant’s, talked about what that boyfriend had had from her, and that he wanted it too. She also saw his face. The accused touched her breasts with his hands and his open mouth, alternating between breasts. The complainant told the accused to stop and that she did not think that this was “okay”, and she tried to push the accused away. The complainant did not know how long the incident lasted. She then passed back out.
[8] No further details were adduced by the Crown about the nature of the accused’s contact with the complainant, and in particular with the complainant’s vagina. Such areas as: whether the vaginal touching was above or below bedding, whether there was digital penetration, what specific parts were touched, how many touches there were, remained unexplored.
[9] The next day, the complainant woke up without her pants. She still had her bra, which she continued to wear the entire long weekend, before ultimately turning it over to police on Tuesday May 20. She could not find her blouse. After dressing herself in clothes from Squab’s dresser, the complainant went outside where a number of guests had gathered, including the accused and his daughter. The complainant was uncomfortable and only stayed for a short time, waiting for her ride. Neither the accused nor the complainant spoke about what had happened. She did not recall if the accused’s daughter gave her a mickey from which to drink. The complainant did not recall anyone with a guitar. The complainant did not remember a police officer attending McGregor’s at some point. In fact, she stated that she does not respect police, and probably would have run had a police officer attended.
[10] The weekend passed with the complainant visiting and/or drinking pretty constantly at various homes, including Squab’s, her uncle Morris’, and her mother’s. She ended up again at Squab’s house on occasion, and slept on a couch there one night, with her friend James on a nearby loveseat. The accused was also at Squab’s house, although the complainant denied that they were ever physically close over this time period. On Tuesday, she drank at her uncle Morris’ house, where the accused was also drinking. She denied ever dancing there with the accused. It was suggested to the complainant that she would not have even sat with the accused drinking if she thought that he was her assailant. The complainant responded that an “alcoholic does not care where the alcohol comes from.”
[11] Back at Squab’s house on one of the days after the assault, the complainant overheard the accused telling Squab and another male guest that the complainant had “liked it”. This was “too much” for the complainant to hear, so she left.
[12] After Morris’ on Tuesday, the complainant went to her sister Ashley’s home, and then to her friend Tammy’s. The complainant told Tammy what had happened involving the accused, and Tammy phoned police. The complainant denied the suggestion that it was Tammy who first spoke to her of “rumours” about the complainant and the accused, which was the only way she could identify her assailant. The complainant showered before police were able to conduct the sexual assault kit examination on her person.
[13] The complainant testified that she had never seen the accused drool, except when he was on top of her in Squab’s bed.
[14] Robert McGregor was the next witness called by the Crown, and significantly called into question the reliability of the complainant. He is a friend of the accused, and disavowed any particular relationship with the complainant, whom he said he hardly knew. He did agree that he saw her at his house at times over the May long weekend in 2015. He firmly denied that she asked if she could sleep in his bedroom, or that she had slept at his house before on prior occasions. Even in-chief he testified, and maintained in his evidence throughout, that he slept in his own bed Saturday night to Sunday morning, alone, without the complainant in it. His house has three bedrooms, one his son’s and another a spare. Both those rooms were left unused the Saturday night. He remembered that the complainant helped to clean up his place after the party was finally over.
[15] McGregor’s evidence is in many ways difficult to credit. He admits to extreme and continuous intoxication over the long weekend, and stated that the passage of three years has also not helped his ability to recall things. He did not remember much about that weekend, because of the drinking. He saw the complainant and James sleeping separately on a couch and loveseat one morning, but can’t remember which morning. He can’t remember if the accused was there the night before that or not. Everything for him about that weekend, he said, was “a blur”.
[16] Leslie King (also called “Bully”) was called by the Crown and testified. He is a friend of the accused. At some point after the night following the Stag and Doe at the Community Centre, the accused called him at “Jake’s” house and told him that he “had sex with [the complainant]”. The accused sounded excited, and he invited King to come over and drink some wine.
[17] In cross-examination, King explained that he did not remember much about the events of the weekend. He had a heart attack and a stroke in October 2017, which has affected his memory, especially of things that had been said to him. King knows the accused as a “joker” who likes to make jokes, including about sex, so when the accused told him about sex with the complainant, he thought that the accused was joking. King remembered seeing the complainant and the accused having a good time dancing and partying together at Morris’ during that weekend.
[18] No evidence was adduced in re-examination of King to show that the accused’s words to him of “sex with the complainant” had been told by King to police and recorded in a statement that pre-dated the stroke, and were accurately recounted at trial.
[19] Cst. Josh Shokan was the next Crown witness. He is a police officer with the UCCM Police Service. On Monday May 18, 2015, he had police business with the complainant’s friend James at McGregor’s house. He went there and found James, the complainant, McGregor, and the accused out front of McGregor’s house. The complainant and James had beer. McGregor was drunk, and Shokan made no particular observations about the accused. They all seemed friendly with each other. It looked like there was a party going on. No “alarm bells” went off. So far as I can tell, Shokan’s evidence served only to further the defence case.
[20] Michael Bissonnette, a forensic scientist at the Centre of Forensic Sciences, testified and was qualified to offer opinion evidence in the areas of body fluid identification and DNA analysis and interpretation, including the manner in which DNA arrives at the locations in which it is found.
[21] In this case, forensic DNA investigation was targeted at the inside cups of the brassiere that was worn by the complainant at the time of the incident. Amylase, the substance in saliva that contains DNA, was detected over the entire surface of both interior cups of the brassiere. An area was cut out from one of the cups, DNA was extracted, and DNA profiles were developed: of the complainant, and of an unknown male as a major donor. A comparison sample of bodily substance was obtained from the accused and a DNA profile developed therefrom. This profile was compared to the male profile from the brassiere. The accused could not be excluded as the donor, to a high degree of probability.
[22] Bissonnette opined that the presentation of the DNA on the complainant’s brassiere was consistent with the DNA having been deposited to a large area of the cups of the brassiere from a large area of the breast surfaces, or with the DNA largely in a smaller area spreading out in the weave of the fabric of the brassiere. In answer to a hypothetical posed by the defence, Bissonnette accepted as “possible” that the saliva could transfer from the outside surface of the brassiere by soaking through to the interior. However, significant and increasing volumes of saliva would be required to soak through one or more layers of material to account for the observed presentation of saliva-based DNA in the cups of the brassiere. The complainant’s shower prior to testing was a possible explanation for the absence of any donor DNA with respect to vaginal samples from the complainant.
The defence case
[23] The accused testified, and admitted to a long struggle with alcoholism, perhaps as a result of difficulties from his residential school background. He had been sober for months at a time, and for seven months leading up to the May long weekend 2015. He testified that he had fallen off the wagon that weekend, and engaged in “binge” drinking, though his memory was still “80%”. His evidence indicates that he drank steadily, but did not became “blind drunk”. He denied any blackouts, such as he used to have. It is clear that he was very intoxicated all weekend, but so was everybody else at McGregor’s. The accused claimed that he nevertheless woke up each day at about 7 a.m., and could function, a fact which was not contradicted.
[24] The accused apparently has a criminal record extending from 1971 to 2001, with his most recent convictions relating to drinking and driving. Given the age of the record, and the absence of any detail in its presentation, I do not consider the record to have significant effect on my assessment of the accused’s credibility.
[25] In-chief, the accused denied having any sexual dealings with the complainant, and denied her claims. His evidence was, in general terms, consistent with the statement that the Crown had chosen to file as part of its case, though far briefer. He testified that McGregor slept in his own bedroom and that he himself had slept in one of McGregor’s other bedrooms the night after the Stag and Doe, but asserted that he did not see the complainant when he went to bed. The next morning, he also observed a different male guest in Squab’s third bedroom. The accused admitted to having been in McGregor’s bed during the weekend once, with McGregor, when the two appear to have passed out drunk together Sunday night (not Saturday).
[26] The accused cleaned up dishes with the complainant at McGregor’s several mornings that weekend, and she and he sat outside with the group at a picnic table Sunday morning, where they kept drinking. The complainant sat on the same bench as the accused, laughing and joking. The accused’s daughter brought some mickeys of alcohol, from which they drank. The accused and another guest played guitar. The accused went fishing, and interacted with the complainant on his return. The complainant repeatedly expressed her interest in going fishing with the accused.
[27] The complainant and the accused again interacted on the Monday. The complainant was friendly with the accused. On Tuesday, the accused asked the complainant about hickies that he observed on her neck. He asked, “what happened, chum?” She laughed. The complainant and the accused were again together at Morris’ house that day, where they danced together.
[28] The accused denied calling King at Jake’s, as he did not know Jake’s telephone number.
[29] In cross-examination, the Crown brought out, through extensive questioning, that over the course of the long weekend the accused regularly was in close proximity to the complainant side to side, and face to face. “She was in front of me lots of times”, he said, and at times on the bench opposite, only a couple feet apart. They spoke together, they hugged, he wrapped his arm around her neck in a familiar way several times (“like an uncle and his niece”), and they even danced together at Morris’, sometimes holding each other with their arms wrapped around each other’s backs. The music was on for a couple of hours, and sometimes there was space between them, and sometimes not. They also sat together outside of McGregor’s house at a picnic table, or opposite each other but not far apart.
[30] The Crown also had the accused emphasize, through questioning on the subject, that the complainant was wearing a very or “very very” low cut tank or halter top on some of the days. “She wasn’t covered too much,” the accused stated.
[31] The Crown further brought out in cross-examination in some detail, with many questions, that the accused slobbers profusely when he talks, and that he spits. “It’s shameful that I spit and drool”, stated the accused, who added that his daughter had been disgusted by his slobber on the phone. He asserted that he could have spit and drooled left and right while he was dancing with the complainant. The accused agreed that he left no traces of spit in court, but he was constantly wiping his mouth.
[32] Having brought out all of this evidence from the accused, the Crown did not seek to disprove it with other evidence. In his examination-in-chief, the accused had not been asked in such detail about being close to the complainant, her low cut top, or anything about his habit of slobbering. In re-examination, the accused affirmed that he spits more when he has been drinking heavily.
[33] The accused’s daughter testified, and spoke of sharing around on Sunday morning three mickeys of alcohol that she had won at the Stag and Doe. Along with others who were present the complainant also drank from the bottles. The complainant sat on the picnic table where the accused was sitting with his daughter, and also circulated around, sometimes having further contact with the accused. The accused’s daughter described her father’s spitting as involving spit or foam building up at the sides of his mouth. She noted that he spits when he talks.
Law
[34] The accused started this trial presumed to be innocent of the charge he is facing. The Crown has the burden of displacing that presumption with proof beyond a reasonable doubt that the accused committed the offence with which he is charged: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 27.
[35] Important in this case are issues of witness credibility and reliability, particularly with respect to the complainant and the accused. As noted by Watt, J.A. in R. v. C.(H.), 2009 ONCA 56, [2009] O.J. No. 214 (C.A.), credibility focuses on a witness’s veracity, while reliability has to do with the witness’s accuracy. Accuracy involves the ability to observe, recall and recount events that are in issue. So, at para 41: “Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.”
[36] In the circumstances of this case, the accused, in his statement to police and his testimony, has provided an exculpatory version of operative events. Accordingly, in assessing the evidence, I have instructed myself in accordance with the direction of the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742, in which the Court offered the following guidance on how to approach “credibility contests” (at paras. 27 and 28):
27 In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. [references omitted]
28 … A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[37] It is important in cases such as this to avoid stereotypical reasoning in making determinations of credibility and reliability. Victims of abuse will behave idiosyncratically to abuse, and often counterintuitively, and the law does not require a victim of sexual assault to avoid her molester in order for a court to find her credible: R. v. A.R.J.D., 2017 ABCA 237, at para. 58; aff’d 2018 SCC 6, at para. 2.
Analysis
[38] I begin by stating that I believe that the complainant intended to be truthful in her testimony to the court. In that respect, I find her to be credible. Although she was emotional and combative at times, I found the complainant candid and frank, and am satisfied that she conveyed the facts as she perceived them. It would appear that the complainant was in the presence of the accused on several occasions after the alleged incident. In her own testimony, the complainant explained that at the time, her appetite for alcohol was a driving force in her conduct. I do not find her less credible because of her repeated contacts with the accused, given that alcohol and intoxication were involved over the entire weekend.
[39] If force was applied to the complainant in some way during the night after the Stag and Doe, as she described, she did not consent to it. The complainant did not want to be touched. She testified that she told her assailant to stop and tried to push him away. No issue seems to be taken with that aspect of her allegation. I am satisfied that any contact to the complainant was without the complainant’s consent.
[40] However, in this case, the complainant’s account of events requires corroboration. While I believe that the complainant intended to be truthful, her reliability was called into question by many aspects of the case. Many factors operate to call into question the reliability of the complainant’s account, and invite concern about whether anything such as is recounted by her actually took place:
a. The complainant was drinking heavily even before she attended at McGregor’s after the Stag and Doe. It was she who described going to bed that night as “passing out”. Her evidence offered the incident as something of a hazy waking dream, during which she again passed into unconsciousness, apparently as a result of the alcohol that she had consumed;
b. Crown witness McGregor denied the relationship between him and the complainant that was perceived and asserted by the complainant. He denied that she had stayed over at his house on earlier occasions;
c. McGregor denied that the complainant had slept in his room the night following the Stag and Doe. The location of the assault was a central aspect of the complainant’s allegation, and she expressed no uncertainty about the room in which she slept. It is only the complainant’s evidence that she dressed herself the next day in Squab’s clothing when she could not locate her own;
d. Crown witness King confirmed that the complainant danced with the accused at Morris’, when that fact was adamantly denied by the complainant;
e. The complainant denied the attendance of a police officer at McGregor’s, but Crown witness Shokan, a police officer, did attend, and the complainant should have been able to observe this. The evidence of this witness did little other than to contradict the complainant on this point, and to indicate that the complainant seemed friendly with the accused when the officer saw them;
f. Although a minor point, the complainant did not recall drinking from any mickey offered up by the accused’s daughter;
g. The accused’s daughter, admittedly a less than independent witness, described constant interactions between the complainant and the accused on the Sunday morning, when the complainant minimized those interactions.
[41] But if corroboration is required, there appears to be potential corroboration for the account of the complainant in the alleged admission of the accused to King, and the DNA evidence.
[42] However, I am unable to accord much, if any, weight to the evidence of King about the accused’s admission to him, given the evidence that I heard from that witness about the stroke that he suffered in October 2017 and its effect on his memory. There is simply nothing to give me confidence that what was testified to by King was what was actually spoken by the accused. There may have been some remark made in a sexual context, though that is denied by the accused, but it is not clear to me on the evidence that has been presented that King remembered it or reported it accurately.
[43] As to the DNA evidence, I say this.
[44] Prior to the cross-examination of the accused by the Crown, there was no air of reality to the almost farcical proposition that the accused’s DNA could have found its way into the complainant’s brassiere innocently, by the spitting and drooling of the accused when he spoke. Based on the scientific opinion evidence offered by Bissonnette and common sense and human experience, there would have to be significant quantities of spittle and drool from the mouth of the accused dripping into or soaking through the complainant’s brassiere to account for the DNA found throughout the interior cups of the complainant’s brassiere. Even the evidence of the accused’s daughter offered little material support for such an assertion.
[45] But the complainant did wear the same brassiere over the entire long weekend. The evidence adduced by the Crown from the accused shows many interactions, and indeed physical contacts, between accused and complainant over the course of that weekend. The accused offered, in answer to the Crown’s questions and without contradiction, that the complainant wore a very low cut top over the course of that period of time. The Crown’s questioning brought out from the accused, again without contradiction, that a virtually constant spray of saliva from the accused’s mouth would inundate anyone with whom he was speaking even for a short period of time, let alone someone with whom he had repeated contacts over the course of an extended drunken weekend. In such a context, I cannot say that some level of saturation of the brassiere over time absolutely could not have occurred.
[46] This is not to say that I believe the evidence of the accused. Far from it. I find that the evidence of the accused was uniformly self-serving, exaggerated, and almost an absurdity. I merely point out here that McGregor’s evidence about sleeping arrangements calls into question the accused’s evidence no less than the complainant’s.
[47] But about the spitting and drooling, I am unable to say that such blanket saturation of the complainant’s front is impossible, only that it strikes me as very implausible on all of the evidence in the case. In such circumstances, the force of the DNA evidence as decisive corroboration for the complainant’s account virtually evaporates.
[48] So much with respect to the allegation of the accused touching and applying his mouth to the breasts of the complainant.
[49] With respect to the vaginal touching, so little detail was adduced by the Crown from the complainant that I am unable to begin to make findings of fact about it. Although such touching would seem to represent a more serious claim than the touching of the accused’s breasts, the Crown did not devote any attention to this aspect of the allegation.
Conclusion
[50] I find that the accused most probably committed the sexual touching of the complainant’s breasts, as asserted by the complainant in her evidence. However, given the significant issues with the reliability of the complainant’s evidence, the denials by the accused which I cannot completely reject, and the frailties discussed above with respect to the corroborative evidence advanced by the Crown, on all of the evidence in this case I am left with a reasonable doubt about the guilt of the accused.
[51] The charge of sexual assault is dismissed.