Court File and Parties

COURT FILE NO.: JA-2017-18 DATE: 2018/08/07 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – V.J.L.

Counsel: R. Feldstein, for the Crown J. Hale, for the Accused

HEARD: April 25, 26, 27, May 7, 8 and 9, May 15, 2018

DECISION

CHARBONNEAU J.

[1] Mr. V.J.L. is charged with two counts of sexual assault, one on A.G. on or about May 6th, 2016 and one on J.P. on or between May 15th and May 30th, 2016.

[2] V.J.L. knew both victims. A.G. resided in a condo immediately behind his own condo residence. She had cohabited with Mr. V.J.L.’s nephew M.L. before the couple was involved in a violent separation that resulted in criminal charges and a non-communication order against both of them.

[3] J.P. also lived nearby in the same residential area and had been the girlfriend of Mr. V.J.L.’s nephew M.P., his sister’s son. Mr. V.J.L. and J.P. had had a number of interactions concerning one or more PlayStation 4 game console, although they do not agree on the exact nature of those interactions.

[4] Both complainants allege that V.J.L. physically forced them to have sexual intercourse with him. The alleged sexual assaults are separate events occurring at different times at two different places.

[5] The Crown has brought a Similar Fact Application and submits that at this trial the court may consider and use the evidence of one count as corroborating evidence in the other count in application of the legal principles enunciated by the Supreme Court of Canada in R. v. Handy 2002 SCC 56, [2002] 2 S.C.R. 908.

[6] Mr. V.J.L. admits having had sexual intercourse with A.G. but testified that not only did she consent but she was the one who initiated the sexual contact and sexually assaulted him by forcing him to have full sexual intercourse in spite of his expressed refusal.

[7] On the other count, Mr. V.J.L. denies having ever been involved in any sexual activity with J.P..

[8] I will deal first with the general circumstances surrounding the complaint of A.G.. Most of the surrounding facts are not in issue. On May 6th, 2016 the accused’s family was having a family reunion to celebrate the 16th birthday of their son V.. [Since both the accused and his son are named V., during the trial witnesses were asked to refer to them as Petit V. for the son and Grand V. for the accused. I will use that description where appropriate]. Part of the celebration involved cooking hot dogs on the backyard BBQ.

[9] A.G. was under bail conditions which required that she live with her mother C.G. on C[…] Street. She was subject to a curfew of 11 p.m. However she attended her own residence on P[…] Street from time to time in order to attend to her cat and do some house cleaning.

[10] On May 6th she attended her residence. Her mother dropped her there on her way to work. The exact time was never clearly established because there were all kinds of contradictory evidence on the subject. I find the exact time A.G. arrived at her condo is not important for my analysis.

[11] At one point, A.G. was outside in her back yard smoking a cigarette. She noticed that various people were outside in the L.’s yard and that there was a BBQ going.

[12] A.G. was in possession of a Volkswagen Jetta that had been the car used by her and M.L. before their separation. There is some dispute as to who legally owned the car. What is clear is that A.G. wanted to sell the vehicle. A price of $800.00 had been mentioned. Petit V. who was turning 16 was very interested in the car. There is some evidence that the accused and the complainant had discussions about selling or giving the car to Petit V..

[13] At one point the accused’s wife C.L. asked A.G. if she would like a hot dog. A.G. said yes. The accused intervened and said it would be better if A.G. waited in her residence for the hot dogs because M.L., who had recently been released from jail, would be coming and it was better if they had no contact with each other. Mr. V.J.L. offered to bring the hot dogs to her when ready.

[14] It is while Mr. V.J.L. was alone with A.G. in the basement of her condo that it is alleged the accused forced her to have sexual intercourse with him.

[15] A.G. testified that V.J.L. came to her condo with the hot dogs. They chatted and he suggested that they smoke a cigarette in the basement. She agreed and they went down the stairs where they lite up. He confided in her that his wife C.L. was cheating on him. At one point, he asked her if M.L. has a big penis. She testified that it was not the first time he had expressed a sexual desire for her. He had made advances once before while M.L. was in jail.

[16] She was wearing leggings. He suddenly pulled them down. She managed to pull them back up while he was pulling down his own shorts but he again pulled down her leggings. He pushes her onto the sofa in front of which they were both standing. He lies on her. She tries to push him off and says no, but he penetrates her with his penis and ultimately ejaculates. When he withdraws there is a lot of semen, some on her thighs and some on the sofa.

[17] He finds a dirty hand towel and wipes his semen off the sofa. She feels disgusted. He tells her not to say anything.

[18] Very shortly thereafter, the complainant states that Petit V. arrives. They are both still sitting on the sofa. The accused tells his son to go away. Before leaving, the accused tells her not to tell anything about what happened.

[19] V.J.L. tells a very different story. He testified that on May 6th he came home at about 4 p.m. after having helped unload cattle at the Alexandria auction grounds. A.G. was in her backyard and he heard A.G. say that she would buy the car and give it to Petit V.. He told her he would not allow that. He testified the complainant told him that she would put him in jail the same way she did to M.L..

[20] Later when his wife offered 2 hot dogs to A.G., he told her to leave because M.L. would arrive soon and that he would bring her the hot dogs. Approximately, 4 to 5 minutes later, he brought her the hot dogs. She said that she wanted to talk to him in the basement. He first said no but she insisted and he went down in the basement with her.

[21] At one point she pushed him back with her 2 hands on his 2 shoulders. She held him down on the sofa and touched his genitals. She then started to undress. He tried to get up and she would push him down again. She removed her top – she had no bra underneath. She was wearing black leggings. He kept telling her that he was married. She kept touching his genitals over his pants. She touched him everywhere under his sweater. She told him “I will hurt your family”. She removed his jeans. He was not wearing underwear. She moved over top of him. He kept saying “stop-stop”. He tried to get up but she was too strong. His strength is very reduced because of chronic back pain. She managed to have sexual intercourse with him for approximately 5 minutes. He did not ejaculate. He testified he cannot reach orgasm because of the pills he takes for his back pain.

[22] He testified she got a hand towel and wiped herself. His son arrived very shortly after. He had to ask his son to help him up off the couch.

[23] The accused also stated the complainant made many statements to the effect she had assaulted him to get him and his whole family in trouble. As a result he believes that the complainant wanted to destroy his family and that was the reason why she sexually assaulted him.

[24] The complainant testified that her friend B.F. picked her up later that evening and brought her to his residence in Alfred. She was very distraught. She asked to take a shower and asked him to wash her clothes. She told him the accused had raped her. B.F. suggested she go to the police. She did not want to report it feeling she would not be believed. B.F. corroborates her testimony and testified that he had never seen her so distraught.

[25] A.G. testified that she told her mother about the sexual assault the next day. Her mother told her to contact the police but she was not ready to do so at that time. The complainant’s mother confirms her evidence about the disclosure. She noticed that the complainant’s voice indicated that the complainant was concerned about something.

[26] A.G. indicated that she told D.D. about the incident on-line on snap-chat. D.D. testified that he confronted the accused when he went to help him at work. The accused denied D.D.’s testimony.

[27] I turn now to the surrounding circumstances involving the allegations of sexual assault against J.P..

[28] J.P. is 34 years old. She had surgery and now has a colostomy bag. She receives a provincial disability pension. J.P. is intellectually handicapped. She was always in special education classes during her school years. She candidly describes the reason for this in her words, “parce que je suis pas vite”.

[29] She knows the accused’s family because her former boyfriend was M.P., the son of the accused’s sister J.. From time to time, she attended at the accused’s residence. She also plays on-line video games on a PlayStation 4 console with the accused and his wife.

[30] How the complainant and the accused came to be alone in a bedroom in Mr. V.J.L.’s residence on the day of the alleged assault is not clear. It is not clear either exactly on what date the alleged assault would have occurred. The complainant gave two versions. In the first version, she indicates that the accused communicated with her and she went to his residence. On the second version, she met the accused outside near where she was residing and they walked to his residence. I am satisfied that this difference is caused by her low intellect, her difficulty in understanding simple questions and her limited capacity to remember events and because she easily confuses events. I will get back to this later. One thing that is clear in her evidence is that she wanted to speak to the accused in order to recover a PlayStation 4 console she had sold to him for $200.00 and which she wanted to get back. The accused admitted that she wanted to get her PlayStation back but disagrees on the circumstances which caused the complainant to address her demands to him.

[31] J.P. testified that the accused sexually assaulted her. She testified that once in the L’. residence, the accused told her to go up to his bedroom. She thought her PS4 was there. At one point he showed her his penis and asked her if M.P.’s penis was as big, she said no. He pushed her and she ended up on her back on the bed. He took off her shoes and her pants, put his penis in her vagina and “made love”. He did not remove her top. She tried to push him off but he was too heavy. She has a colostomy bag and cannot push hard. She does not know if he ejaculated.

[32] Once done he went into the washroom for 5 to 10 minutes. During that time, she remained on her back on the bed with her arms raised over her head. She was in shock and “mal à l’aise”. He came out of the washroom and told her to dress-up.

[33] When they came downstairs Petit V., C.L. and her nephew were playing a video game. She asked C.L. for her PlayStation and C.L. told her to forget it. She left closing the door hard.

[34] She did not report the assault because the accused had told her not to tell anyone and she was afraid.

[35] The accused testified and denied that he had any sexual contact of any kind with J.P.. His recollection about the PlayStation 4 was that she wanted it back and he tried to reach the person who had bought it. He found an address and got his wife to send him a message but did not have any success in retrieving the PlayStation.

[36] There is no dispute that the two complainants made a formal complaint to the police on June 8th, 2018. Both were interviewed separately and a video statement was recorded of each interview.

[37] A.G. testified that she decided to report the assault to the police when she learned that J.P. had also been sexually assaulted by V.J.L.. She testified that J.P. was an acquaintance. She had known her for several years. One evening a few weeks after she had been assaulted by the accused, J.P. came to her residence. She is not sure exactly how long after. She noticed that J.P. was anxious while usually she is always full of energy and in good humour. That night she kept her head low and did not want to talk. This was the first time she had seen her quiet like this.

[38] A.G. tried to question J.P. to see what was wrong. At first J.P. would not talk. A.G. insisted and J.P. replied: “C’est lui l’autre bord”. A.G. said : « who, V.J.L. » and J.P. replied : « oui ». The complainant asked her what happened and J.P. related that she went to the accused’s residence about the PlayStation 4 and something happened. J.P. was very hesitant to talk and finally told the complainant that the accused asked her if M.P. had a big penis. J.P. said that upstairs in a bedroom the accused had a sexual relation with her. J.P. was sad and confused. She did not want to talk about the incident. The complainant then told J.P.: “ I believe you, he did the same thing to me”. At that point A.G. told J.P. we have to go to the police because it could happen to someone else. J.P. was reluctant to go to the police and said she wanted to think about it. I believe A.G.’s evidence concerning the events and conversations that took place that evening.

[39] J.P. testified about her disclosure to A.G.. She indicates her meeting with A.G. was 1 or 2 days after the accused assaulted her. She was nervous that night and A.G. asked her what was wrong. She did not want to talk about the incident but it just came out. She told A.G. that the accused showed his penis and asked her if M.P. had one as big. A.G. told her it happened to her also. It was the next day she believes that A.G.’s mother drove them to the police station where they gave a statement. We know that A.G. and J.P. went to the police station on June 8, 2016. The evidence relating to the period of time that elapsed between May 6th and June 8th is confused and in many respect unreliable. It has however no bearing on my ultimate decision.

Analysis

Similar Fact Application

[40] My first task is to determine whether this is a proper case to allow into evidence the similar fact evidence. If so, only then will the evidence of A.G. be available to determine the guilt or innocence of the accused on count number 2 and only then will the evidence of J.P. be available to determine the guilt or innocence of the accused on count number 1.

[41] In both instances the evidence that the Crown wishes to introduce is discreditable conduct of the accused. Such evidence is presumptively inadmissible as it is prejudicial. There is a risk the trier of fact will infer that the accused is the kind of bad person likely to commit the offence charged. There is also the risk that the evidence may influence the trier of fact against the accused, confuse the trier of fact as to what evidence pertains to the crime charged, focus disproportionately the trial of whether the similar fact happened and make it impossible for the accused to properly defend the actual crime alleged against him. There is therefore a real prejudice to the accused by allowing the evidence of other discreditable conduct by the accused. This is why such evidence is usually inadmissible.

[42] The Crown can however overcome the presumption of inadmissibility by showing on a balance of probability that the similar fact evidence is more probative than prejudicial.

[43] Although the same test applies in a judge alone trial, as is the case here, the risk of moral or reasoning prejudice is much lower. Similarly this is a multi-count prosecution and therefore I have already heard the evidence of the discreditable conduct. The admissibility of the similar fact evidence will depend on whether in the overall circumstances of the case; I am convinced that the evidence is more probative than prejudicial.

[44] In this case the main and essentially only issue in both alleged crimes is whether the accused actually committed the crime, in legal terms, has the Crown proved beyond a reasonable doubt the actus reus of the alleged crime. There is no issue of identity or whether the acts complained of constitute in law a sexual assault or whether there was consent by either of the complainants. The issue then is to what extent the similar fact evidence is capable of raising the inference that the accused committed the sexual assault alleged in the other count.

[45] I must first weigh the evidence on which is founded the allegation that the crime occurred. This necessarily involves considering the credibility of each complainant in order to decide whether the probative value of the similar act is sufficient enough to admit. At this stage the test is whether I am of the view that the evidence is reasonably capable of belief.

[46] I find A.G. to be both a reliable and a credible witness. Defence counsel has raised several points attacking her credibility. The inconsistencies raised by defence counsel are all on peripheral issues and I am of the view they do not diminish A.G.’s credibility. Moreover, her evidence was corroborated by other witnesses. I will deal again with this when addressing the charges themselves.

[47] The testimony of J.P. is more problematic. She gave two different versions about how she got to the accused’s house that day. In one the accused communicated with her and she went to his house. In the other she met him on the street and walked with him to his house. There is no explanation for the difference except possibly her confusion caused by her low intellect. At all times however, her motive to go to this house was to recover her PlayStation 4 that she believed V.J.L. still had in his possession.

[48] More importantly, her evidence as to what took place at the house before the sexual assault actually took place in the bedroom is confused at times and substantially different than what she told the police officer in her video statement. This is a real problem for the Court.

[49] What is clear however, is that she gives much more details in her video statement than she provided at trial. Moreover, on some of the details she seemed to recall them as her examination-in-chief progressed. The best example is that she had not talked about the accused showing her his penis and talking about its size when first questioned. She only said that he showed her his penis. Only later when she was being questioned about the actual assault, Crown counsel asked her when did she first see his penis and she said the accused showed it to her and asked her if M.P. had one as big.

[50] J.P. is clearly intellectually challenged. Throughout her evidence she clearly misunderstood simple questions. She has trouble with the meaning of words like “before” and “after” even though the context of the question would be clear to normal persons. When it was pointed to her that she had told the police that she was close to Mr. V.J.L. in the kitchen when he showed her his penis she answered: “he is a friend but we are not close”. She testified with the help of an interpreter. It is clear her strange answers confused the interpreter on many occasions. I am sure it also caused confusion for her.

[51] I find her a very candid person. During her cross-examination she candidly admitted that she often remembers things when reminded. Her statement to the police was given several weeks after the incident while her evidence at trial was given two (2) years after the event. So the details were much clearer in her mind when she gave her statement. All through her evidence I have not seen any attempt to avoid answering any question whether in her favour or not or to attempt to deceive.

[52] Unfortunately, I find her evidence to be unreliable. There are too many inconsistencies and the Court cannot simply put them aside on the basis of low intellect. I cannot find her evidence to have the sufficient weight to allow the proposed similar fact evidence on Count No. 1.

[53] I am of the view that in view of the overall difficulties with J.P.’s evidence, any similar fact evidence provided by A.G. does not assist the Crown and this is not because I find that the assault on J.P. did not occur but because I am not convinced beyond a reasonable doubt that it did. I therefore find it meaningless to proceed further with the analysis of the Crown application as it fails on the issue of sufficient weight. None of the similar fact evidence will be admitted.

Analysis

The charges against the accused

[54] The Crown must prove all the elements of sexual assaults as particularized in each count beyond a reasonable doubt. The accused is presumed innocent. He need not prove anything. The burden of proof rests with the Crown at all times.

[55] The accused has testified and denied having sexually assaulted the complainant in each count. As a result the Court’s analysis must follow the principles set forth in the S.C.C. in R. v. WD.

• If I believe the accused’s denial, I must acquit him;
• Even if I do not believe the accused, if his evidence raises a reasonable doubt about his guilt, I must acquit him;
• If his evidence does not raise a reasonable doubt, I may only find him guilty if the balance of the evidence convinces me beyond a reasonable doubt of his guilt.

Count No. 1

[56] I do not believe the accused and his evidence in the context of the overall evidence does not raise a reasonable doubt about his guilt. On the whole of the evidence the Crown has convinced me beyond all reasonable doubt that V.J.L. sexually assaulted A.G. as alleged in Count No. 1. The accused testified that he was sexually assaulted by A.G.. In fact, what he described is a forceful rape. In an attempt to make his account of the events believable he said he has a bad back and was unable to push back A.G. when she laid on top of him and forcedly managed to insert his penis into her vagina.

[57] His overall testimony is totally improbable. On the one hand the accused is not a small man. He helps load cattle at the cattle auction. He also works at a plant where he has to move cases weighing up to 50lbs.

[58] Secondly, he had ample opportunity to remove himself from her grasp before Ms. A.G. got on top of him. He indicated that before pinning him down she first danced then fully undressed herself, took off his clothes, and touched him on his “private parts” and also all over his body.

[59] He explained he could not get up because he has a painful back. In fact, he tells us he could only manage to get off the couch after the event with the helping hand of his son. His son, who in my view showed a clear bias in his father’s favour when he testified, told the court that when he arrived everything looked normal. He never mentioned he had to help his father off the couch. The accused also contradicted himself on this very point by saying that after the assault and before his son arrived he stood up to put his pants up.

[60] On a number of occasions he admitted that he was strong enough to restrain her hands. Yet he was unable to prevent her from untying and pulling down his pants.

[61] He insists that A.G. told him on many occasions that she was assaulting him to destroy his family, to put him in jail like she had done to his nephew M.L.. There is absolutely no evidence whatsoever that A.G. bore any ill-will against him or his family. Her dispute was with M.L. only. His wife and A.G.’s mother knew of no such ill-will. In fact the accused’s wife and the complainant were on good terms as evidenced by the fact that C.L. offered to make her two hot dogs and drove her around from time to time.

[62] After the end of the incident of May 6th, the accused testified he stayed alone with the complainant and told her she would pay for having done this to him. First of all, why would he stay and not leave immediately with his son. That is not logical. Secondly in his video statement to the police he denied having been involved sexually with the complainant. Confronted at trial with this blatant contradiction, he said he did not want to cause the complainant any harm. This also is totally illogical. If he believes that A.G. wanted to destroy his family and had now gone to the police with false allegations to have him put in jail, his first reaction would not have been to lie to save her from harm. The only reason to lie to the police was to exculpate himself.

[64] Similarly, when asked by the constable if he knows J.P. he replies “who is that?” It is not credible that he would not have recognized the name given the numerous interactions he and his wife and extended family had with J.P. over the years.

[65] He testified that he did not ejaculate because although he can have an erection, he cannot reach orgasm as a result of drugs prescribed by his doctor. At the end of his long testimony he changed his version and said that he is not sure whether he ejaculated or not.

[66] He testified that it was A.G. who invited him downstairs. He indicates he hesitated a long time before going down and once down he remained at the foot of the stairs. He explains that was because he was afraid of being alone with her. When it was suggested to him that he must have been alone with her sometimes in the past, he said when it happened in the past his wife came with him and sat in the car in the driveway. All of this is not reasonably credible. Moreover, his wife never told us such precautions were ever taken. None were taken when she cooked two hot dogs and had him take them to A.G..

[67] His wife was also asked whether she felt it was strange that it took him so long to bring two hot dogs, she replied no because I knew he wanted to talk to her about the car and he talks a lot.

[68] He also told the police that he remained at the bottom of the stairs, not near the couch, and that the complainant was making a false complaint against him because of a dispute about Wifi. Why would he make an allegation of false accusation if he was trying to keep the complainant out of harm.

[69] I noted also that the accused gave his evidence about the alleged sexual assault by A.G. in an excessively hesitant way. He had to be asked many, many times to tell us exactly what happened during the assault itself and he would continually repeat the same evasive or unresponsive answers. To get him to say that his penis penetrated the complaint’s vagina the words had to be almost put in his mouth. I find his hesitation was not the result of emotions but rather because he was making up the story as he went along.

[70] A.G. is a credible and reliable witness. Defence counsel tried to raise contradictions and inconsistencies but even him had a hard time finding anything of importance. What Mr. Hale raised had to do with peripheral matters such as who opened the door for Petit V., where they were when he arrived, when she arrived at her condo that day, exactly what and when things were said concerning the car, and when did they go to the police. The reality is that there is no contradiction or inconsistencies of significance in her evidence.

[71] Defence counsel emphasised two aspects on behalf of the accused. The first was that Mr. V.J.L.’s evidence about being assaulted was reasonably credible and he should be given the benefit of the doubt that he was the victim of an assault and not the other way around. I have already dealt with this submission and rejected Mr. V.J.L.’s evidence.

[72] Defence counsel also submitted that the Court should find at least an air of reality that the complainants colluded and collaborated together to bring false accusations against the accused. I find there is no evidence whatsoever of collusion or collaboration between the complainants. A.G. testified that J.P. came to her house approximately three (3) weeks after May 6th. This was an approximation but obviously it indicates it was a substantial period of time after May 6th. I believe A.G. and I find there was a substantial period of time between the two (2) incidents. We know that the complainants went to the police on June 8th, 2016, approximately five (5) weeks after the A.G. assault. By that time A.G. had told B.F., her mother and D.D. about the assault. J.P. said that she spoke to A.G. 1 or 2 days after she was assaulted. My review of the evidence of the complainants on the night when J.P. disclosed the assault to A.G. indicates that very little was said about the details of the assault by A.G.. A.G. testified that J.P. was not herself. She had to insist before J.P. told her that it had to do with the accused. I believe A.G. concerning her observations of J.P. that night and as to what was said. A.G. only said: “I believe you, the same thing happened to me”. Defence counsel is right when he submits that the complainants had the opportunity to collude. However, both counsel put several questions to the two complainants about whether they discussed the allegations before they went to the police and gave statements. They both said no except in a very general way. I believe the two complainants and find there was no collusion on their part.

[73] On the overall evidence, I am convinced beyond a reasonable doubt that the accused sexually assaulted A.G.. I find him guilty of Count No. 1.

[74] For the reasons given, I am of the view it would be unsafe to convict the accused on the confused and inconsistent evidence of J.P.. I come to this conclusion notwithstanding my belief that J.P. is trying to be honest with the Court. I need more to be convinced of the guilt of the accused beyond a reasonable doubt.

The Honourable Justice M.Z. Charbonneau Released: August 7, 2018

COURT FILE NO.: JA-2017-18 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – V.J.L. DECISION Charbonneau, J. Released: August 7, 2018