Her Majesty The Queen v. J.D., 2019 ONSC 2685
Court File No.: CR-17-821 Date: 2019-05-02
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN S. Stackhouse, for the Crown
- and -
J.D. A. Farooq, for the Accused
HEARD: February 25, 26, 27, 28, March 1, 4, 2019
REASONS FOR JUDGMENT
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 486 OF THE CRIMINAL CODE BY ORDER OF THE HONOURABLE JUSTICE J. M. FRAGOMENI
FRAGOMENI J.
[1] The accused, J.D., is charged with the following three counts:
That he, on or between the 15th day of January, 2017 and the 15th day of February, 2017, at the City of Mississauga, in the Central West Region, did unlawfully commit a sexual assault on D.D., contrary to section 271 of the Criminal Code of Canada;
That he, on or between the 1st day of February, 2017 and the 28th day of February, 2017, at the City of Mississauga, in the Central West Region, did unlawfully commit a sexual assault on D.D., contrary to section 271 of the Criminal Code of Canada;
That he, on or between the 7th day of April, 2017 and the 11th day of April, 2017, at the City of Mississauga, in the Central West Region, did unlawfully commit a sexual assault on D.D., contrary to section 271 of the Criminal Code of Canada.
OVERVIEW
[2] The accused, J.D., met the complainant, D.D., online in 2009. At the time she was living in Michigan, still in school. The complainant was living with her parents.
[3] J.D. and D.D. talked to each other via Skype. In 2010 J.D. took a bus to Michigan to see her. After she graduated she would visit him in Mississauga when she could. J.D. lived with his parents, so she would visit him there.
[4] On July 9, 2011, J.D. and D.D. were married. D.D.’s parents did not approve of this wedding, feeling it was too quick. Her parents did not attend the wedding, which was held in Mississauga. The plan was for her to move to Mississauga and live in the home of his parents, with J.D.
[5] J.D. and his parents were sponsoring her so that she could obtain her permanent residency.
[6] D.D. described that she had a good relationship with J.D.’s parents. They had a large house. They provided her with a vehicle and assisted with her expenses. J.D.’s parents were well off and money was not a concern for them.
[7] J.D. and D.D. had two children together. M.D. was born January 12, 2014. Her permanent residency was finalized when she became pregnant with M.D.
[8] D.D. was a stay-at-home mother, supported by J.D. and his parents.
[9] During the marriage a serious concern arose, according to D.D., about J.D.’s drinking. D.D. described his personality change when he would drink this way: he was either lovey-lovey or really angry and he was either a puppy or a pitbull. D.D. did not drink alcohol at all.
[10] D.D. described J.D. as a very bad drunk and after M.D. was born she asked him to stop drinking. However, after M.D. was born, J.D. continued to drink almost every night and would hide his drinking from her.
[11] Their second child, M.D., was born on December 5, 2014. According to D.D., J.D.’s drinking continued.
[12] D.D.’s parents had reconciled their differences with her but her parents and J.D.’s parents were not on friendly terms. J.D. and his parents wanted her to cut off all ties with her family.
[13] Eventually, J.D. and D.D. decided to move into a condominium owned by J.D. and his mother. The condo was in their names. This would give D.D. and J.D. more independence, more space and they could have their own life. They renovated the condo. The plan was to stay at the condo until the children started school. She would then work. They would eventually sell the condo and buy a house. They moved into the condo in July 2015.
[14] D.D. testified that the three incidents resulting in these charges took place at the condo.
[15] J.D. denies that he had a problem with alcohol. He also denies that any of these incidents took place. J.D. advances an argument that all of these incidents were fabricated so that D.D. could have an advantage in the upcoming family law trial. After D.D. reported these incidents to the police the parties separated and they have been involved in parallel family law proceedings since. The family trial is scheduled for nine days at the May 2019 trial sittings.
Count 1
D.D.’s Evidence
[16] In January 2017 D.D. started sleeping on the couch. She was not allowing J.D. to have any physical contact with her at this time. The marriage was in serious trouble. She was done with the marriage and told him so. In January 2017 she went to see a lawyer.
[17] One night he talked to her about going back and sleeping in bed with him. He said he would leave her alone so she did. Early that morning she was sleeping. He took her pyjamas down and got on top of her. She was surprised, woke up and said, “What are you doing?” She pushed him away. It happened very early in the morning and it happened very quickly. He pulled her legs apart and had sexual intercourse with her. She did not want to have sex with him so she pushed him off and he got off quickly. J.D. did not ejaculate on this occasion. It didn’t last very long and he acted like it was no big deal.
[18] After this incident she viewed the relationship differently. The marriage was in serious difficulty. J.D. continued to abuse alcohol. He had commenced a program at Sheridan College but was suspended. She had encouraged him to go back to school. He agreed to go. He was still working part-time at Sobeys. She was taking on the responsibility of caring for the children. His parents were still helping them but they were upset he had been suspended from school.
[19] After his parents found out about his suspension he would ignore and avoid his parents. He would say, “fuck the bitches” about his own parents. He told her his parents would take care of him because he was their only child and they had two grandchildren of his.
Count 2 – February 2017
[20] D.D.’s birthday is February 12. Since the first incident she would be sleeping on the couch. She would wait for him to go to bed and he would wait for her to go to bed.
[21] At around 2:00 a.m., while in the living room, he got angry with her and it got physical. He grabbed her wrists and there was a pushing match. She tripped and fell onto the couch. He fell on top of her. The children were sleeping in their bedroom close by and she didn’t want them to hear anything and wake up. J.D. started having sex with her and she told him to leave her alone. She was afraid to fight him off as it could get worse and escalate. After he had sexual intercourse with her he went up to the bedroom.
[22] During this time period J.D. continued to drink excessively, predominantly tequila. He would put the tequila in water bottles and hide the drinking from her. He would not drink in front of her.
[23] On this occasion when he was forcing himself on her she said no and told him to go away and leave her alone and go to bed. She asked him why are you doing this? He said, “I don’t really understand – I’m trying to save my marriage.”
[24] On this occasion he pushed her legs apart and had sexual intercourse with her. He was not wearing a condom. He did ejaculate on this occasion.
[25] After the first incident she did not tell anyone. It was embarrassing and humiliating. She shut down and buried it away. She did not want to talk about it. She never told anyone about this second incident.
Count 3 – April 2017
[26] On this occasion she had fallen asleep on the couch. It was late and J.D. had come to the couch and got on the couch with her. She woke up and told him to go to sleep. He was persistent and he took her pyjamas and pants off and was forcing her legs apart. She was holding her legs together and trying to get away from him. Again, she didn’t know what to do. The children were close by in their bedroom. They were not in cribs any longer so they could easily come out to the living room if they heard screaming.
[27] J.D. was trying to have sex with her. He did get her legs apart and there was a brief penetration and she pushed him away. He was not wearing a condom.
French Vanilla Incidents
[28] In addition to those three incidents, D.D. testified that she believes J.D. drugged her French Vanilla that he would bring home to her regularly. In March he would bring her a French Vanilla from Tim Hortons. She would drink it and fall asleep on the couch. The next morning she would wake up in the bedroom. The first couple of times this happened she brushed it off, maybe she was just tired. As a result of not knowing or remembering how this happened, she stopped drinking it. This made him angry. She thought he had drugged her. It made her scared, not knowing how she got from the couch to the bed. The second time it happened she didn’t wake up until noon. The children were already up playing.
[29] There were only two incidents where she believes she was drugged.
[30] On those two occasions when she did wake up on the bed her legs would be hanging off the bed and she would have no bottoms on, just her sweatshirt.
[31] She never confronted J.D. about those incidents as she really had no evidence he had drugged her.
[32] After the third incident she spoke to a pastor and C.U. at the church who suggested she should go to the police and she eventually did. She gave a statement to the police on April 11, 2017.
Cross-Examination
[33] In cross-examination by the defence, D.D. confirmed, denied or acknowledged the following:
She stayed in the condo from April 11, 2017 to December 2017. Her first subsidized housing unit came up in Niagara Falls, so that’s where she moved with the children.
D.D. is claiming an interest in the condo in the family law proceedings.
She did rebel against her parents in marrying J.D., but she loved him and he loved her.
Prior to the marriage she knew he drank alcohol but she did not know how serious his drinking was.
J.D. had told D.D. his own father had a drinking problem and quit, so after M.D. was born he said he would quit too.
J.D.’s drinking was very bad that on occasions he would be so drunk he would pee on the walls and in the dressers.
She loves her children and didn’t want to be on a sinking boat. However, she loved J.D. and wanted to make it work.
After J.D. was charged, in the family court proceedings she asked for supervised access and did get an order for supervised access. This was later changed to unsupervised access, as long as J.D. was not drinking during the access times.
D.D. denied the suggestion by defence counsel that her allegations about J.D.’s alcohol abuse is a fabrication.
D.D. had asked J.D. to get blood work done – the December 2017 blood test came back as normal.
She denied that the two French Vanilla incidents are all made up. She agreed that on both occasions she did not get blood work done to see if there were drugs in the coffee.
She was trying to obtain proof of what happened and in that regard she made an audio recording of a conversation she had with J.D. and she took screen shots of some text messages between them. She wanted to be able to demonstrate what she was going through. This was done specifically to assist her in her family law proceedings. He had told her, “You have no proof – it’s your word against mine”, so she set out to get some proof.
Exhibit 1 is the audio recording. The transcript of the recording sets out the following:
J.D.: It happened to what I was doing, so. (Unidentified sounds.) D.D.: Why do you hate me, just… J.D.: D.D., I have come to the point where I hate you beyond hate. I can’t stand you beyond the world. You are like the worst enemy I have on the face of this planet. D.D.: Then why don’t you just leave me alone? J.D.: It’s fine. So I pay you out 25 percent of this condo and that’s all you fucking get, ‘cause everything else is in my parent’s name. And you wanna know what my lawyer told me? He said, were you anticipating this? I said, no, but hm, but I thought I’d cover all my bases. And he’s like, because she is only entitled to 25 percent of the condo and that’s all she gets. You don’t get a car. You don’t get the condo and you don’t get n-, diddly-shit. Yeah, okay, I have to pay alimony. That’s fine. It’s all you get. D.D.: I’m not leaving you for money. J.D.: I don’t care what you’re leaving me for. You get fucking nothing. Enjoy it. Come get your mother to babysit while you go to work. D.D.: You always gotta bring my family into it. J.D.: I’m sorry, what? D.D.: You always have to bring my family into it. J.D.: That’s because your family is really old and e-, all evil. Oh, I’m going (inaudible) [bed].
It was agreed that the inaudible is “bed”.
D.D. testified that the unidentified sounds at the start of the recording are his hands clapping in her face.
She had no idea what he was going to say when she turned on the recording on her phone.
J.D. has a conviction for drinking and driving in 2008, but was applying for a pardon. She was told about this after M.D. was born.
In her April 11, 2017 KGB statement she told the police that her “husband is drunk every night.” She denies she lied to the police on this point. After the children were born he was drinking every night.
The audio recording was prior to her attending at the police station on April 11, 2017.
D.D. never gave her cell phone to the investigating officer.
Exhibit 3 are the text messages.
In her KGB statement she only thought of the French Vanilla incidents after the officer asked her at the end if there was anything else. D.D. explained this in that it was later in the statement and it had been a long day.
She agreed she stated it was a sinking ship and she didn’t want to drown with the kids, but that didn’t mean she didn’t want J.D. to have access to the children.
She could not recall telling Officer Al-Jamal that he sexually assaulted her approximately ten times.
A trial date has been set for the family court trial, for the blitz sittings commencing in May 2019. D.D. denies fabricating all of these incidents to gain an advantage in their custody and access trial.
In-chief, D.D. described an argument where J.D. pulled M.D. from her arms. In her KGB statement she described it as M.D. being ripped from her hands. D.D. explained this by saying ripped and pulled means the same according to her. It is just semantics.
Re: First Incident
At trial, she stated she was sleeping when it started. In her KGB statement, she stated:
A. I don’t know. No, I don’t think so. I was sleeping from – like, until…. Q. Like, you woke up… A. I was…. Q. …and he was inside you? A. He was on top – yes. Q. Okay. A. ‘Cause I hadn’t been sleeping very good for a while because of everything. Q. That’s under-, that’s understandable. A. So, I was just really tired. The kids wake up six o’clock.
She testified at trial that it happened very quickly and she was waking up and it was happening. She was fully awake by the time he was having sexual intercourse with her.
At the preliminary hearing she stated:
Q. Okay. And if you can tell us in as much detail as possible what you remember about waking up. A. I was sleeping and then I just remember waking up to him getting my pants down and the underwear and – but I wasn’t fully awake when he was doing that. I – I didn’t – I was fully – more fully awake when he was on top of me. Q. Okay. So you were sort of awake and you remember him taking your pants down and your underwear down? A. I remember like feeling that… Q. Okay. A. …motion, but I was not like…. Q. Okay. And were they taken down together or separately? A. I can’t recall, but I believe both together. Q. And were they just like pulled down from your waist or were they right off of your legs? A. Off. Q. Okay, so they were right off. And what about whatever you were wearing on top, was that still on you or was that off? A. Yes, it was still on. Q. The top was still on? A. Yes. Q. Okay, okay. And then what’s the next thing that you remember happening? A. He – he was – he got on top of me and pushed my legs apart and…. Q. What part of you was – like were you on your back, on your stomach or on your side? A. I was on my back. Q. And when you say that he pushed your legs apart did he use his hands to do that or his legs to do that? A. His hands.
Re: Second Incident
On this incident D.D. testified that there was no kissing prior to the sexual intercourse. At the preliminary hearing she stated:
And so he – he fell on top of me and I don’t really – I don’t understand it, like how he can go from how – you know, how much he hates me and despises me and is angry at me to now I want to have sex with you, but that’s what happened when he fell on top of me. He started like – yeah, he started kissing me and like – and touching me and I was – I was angry.
She does not now recall the kissing and touching.
At trial she stated he “pushed” her legs apart. At the preliminary hearing she stated he “pulled” her legs apart.
D.D. explained at trial that to her, pulling and pushing is the same thing. The point is her legs were apart.
Re: Third Incident
- On this occasion he did penetrate her and it only lasted a few seconds;
- D.D. denied the suggestion by defence counsel that she had a plan to have J.D. incarcerated so she could move back to Michigan;
- The approximate ten times she told Cst. Al-Jamal it happened included the times he came to the couch to check on her.
Re-Examination by Crown
[34] In re-examination, D.D. was asked about her understanding of her interest in the condo. On April 11, 2017, when she gave her statement to the police, her understanding was that since her name was not on the condo she would have to leave. It was possible she could get 25% of its value, namely $100,000.
[35] When D.D. completed her trial testimony she met with the Crown briefly and advised the Crown that the Report of the Office of the Children’s Lawyer contained information about J.D.’s drinking. D.D. told the Crown that J.D. had admitted to the OCL to having a drinking problem. What D.D. did not tell the Crown was that J.D. had filed a Dispute to the OCL Report relating to his drinking.
[36] The OCL is scheduled to participate at the upcoming custody and access trial.
C.U.
[37] Ms. U. will testify that on February 12, 2017 D.D. attended her church. Ms. U. is the Elder’s wife. D.D. spoke about having a troubled marriage.
[38] On February 16, 2017, she spoke to D.D. on the phone and D.D. was really struggling. D.D. told her that her husband was an alcoholic and he was lying and stealing. J.D. entered the room so the conversation ended.
[39] D.D. also told Ms. U. the following:
- she was having trouble in her marriage;
- her husband was drinking heavily;
- they were having aggressive arguments;
- she was sleeping on the couch;
- on one occasion he pushed her hard and she fell onto the couch;
- her husband was trying to have sex with her and she didn’t want to;
- on one occasion she was sleeping on the couch and woke up with her bottoms off.
[40] Ms. U. could not say when she had those conversations with D.D.
[41] On April 5, 2017, Ms. U. suggested to D.D. that she speak to the pastor and she did. Ms. U. went with her and again D.D. told the pastor that her husband was an alcoholic and he forced sex on her.
[42] D.D. had sent Ms. U. an e-mail that she and J.D. had had a very bad fight. He tried to have sex with her and she didn’t want to. D.D. was concerned he would kill her.
[43] D.D. was uncomfortable talking about this and so she didn’t give Ms. U. a lot of detail. Ms. U. attended at the police station with D.D.
Cross-Examination
[44] In cross-examination Ms. U. confirmed or acknowledged the following:
- D.D. told her he was forcing her to have sex she did not want. She could not recall the specific words D.D. used.
- On April 5, 2019, D.D. felt safe enough to go back to the condo. Ms. U. could not recall the specifics of that conversation.
- The e-mail D.D. sent her was on April 10, 2017 – Ms. U. did not produce the email at trial.
- Ms. U. was asked by D.D. to provide a statement in July 2017. Ms. U. prepared her statement at work, typing it on her computer.
- On April 10, 2017, D.D. sent her an e-mail along with the audio recording filed as Exhibit 1.
- On one occasion, J.D. was aggressive with one of the children.
Defence
Cst. Lara Al-Jamal
[45] Cst. Al-Jamal was the first witness to testify on behalf of the defence.
[46] Cst. Al-Jamal met with D.D. on April 11, 2017 at 22 Division in Brampton. D.D. walked into 22 Division shortly after 6:00 p.m. Cst. Al-Jamal arrived at 22 Division just before 8:00 p.m.
[47] Cst. Al-Jamal made her notes at 1:19 a.m. about what D.D. had told her about her relationship with J.D. and the accusations she was making.
[48] Cst. Al-Jamal was talking to D.D. in a room and she was writing the notes as D.D. was speaking. This initial meeting with D.D. was not audio recorded or video recorded.
[49] During the conversation D.D. was a bit emotional so it was difficult for the officer to get a straight story line. The following questions and answers are probative on this issue:
Q. Did she give you a linear sequence or your notes reflect her story going back?
A. My notes reflect her story…
Q. Okay.
A. …exactly as she was telling it.
Q. All right. Thank you.
A. Yeah. The initial party anyway.
Q. Okay.
A. I had to do more notes afterwards but yeah, initially they do reflect what she was telling me.
Q. Okay. So your, your notes reflect as she’s telling you the story and you’re writing it down, it may not be in a linear fashion?
A. Yes.
Q. That’s an afterthought, right?
A. Yes.
Q. Okay. Now at some point in time, does she tell you how many times she was sexually assaulted?
A. She does actually. So she told me she remembers two vivid times with details.
Q. M’hmm.
A. But then later she tells me that – I guess she believed that she was drugged by J.D. I don’t know to what extent that’s true but that’s what she believes.
Q. Right.
A. Because she would wake up some days and not remember what happened at all the night before.
Q. Okay.
A. So she believes that there was at least ten times where she was sexually assaulted but she can only actually remember two of those times.
Q. Okay. So can you show me where in your notes you have down her telling you she can only remember two sexual assaults and the other ten she can’t because she’s drugged?
A. Sure, yeah, it’s on page 130.
Q. Page 130?
A. That’s right.
Q. Okay. So that’s – could you just please read out that notation for the Court?
A. Yeah, of course. At the beginning of the page it says,
Female believes there’s approximately ten counts of sexual assault that she was a victim of from January 2017 until April 9th, 2017.
And then it says,
Two of which she can remember clearly that occurred in the February 2017 and on April 9th 2017.
[50] Cst. Al-Jamal stated that Cst. Sharma and Cst. Vanderwal took over the investigation. Cst. Al-Jamal advised them that D.D. told her there were approximately ten sexual assaults, two of which she can remember.
J.D. Examination in-Chief
[51] J.D. is 38 years of age. When M.D. was born, J.D. was working at Sobeys Head Office full-time as a Retail Service Representative. He worked Monday to Friday from 8:30 a.m. to 4:30 p.m. or 9:00 a.m. to 5:00 p.m.
[52] He started working there in 2009. He never showed up to work drunk. He drove to and from work with no issues.
[53] After M.D. was born everything in the household was going well. After he got home from work he would spend the rest of his time with his son. He played an active role in caring for M.D.
[54] After M.D. was born he describes his relationship with D.D. and the children as excellent.
[55] The parties separated on April 11, 2018, after he was charged. He had an order for supervised access until August 2018. Access was then unsupervised.
[56] His family law trial is scheduled for May 2019 for 9 days. He is seeking a 50/50 parenting arrangement at the trial.
[57] J.D. denies D.D.’s allegations that he was drunk every day. J.D. describes himself as a social drinker, both prior to the marriage and after. He denies that he peed on the walls or in dressers.
[58] While the parties lived together with his parents, married life was good. He did describe one big argument they had. D.D. had been saving the children’s Tax Benefit money and putting it into a separate account for the children. J.D. took it without her knowledge. She confronted him with this and he acknowledged he took it. She threatened to take the kids and leave if he didn’t return the funds back into the children’s account. He did return the funds into that account.
[59] Eventually the parties moved into a condo which his parents owned. Initially life at the condo was good. However, in December 2016, another big argument took place surrounding D.D.’s wish to go and visit her family for Christmas. D.D. wanted to go for 14 days, which meant that he would not see the children for a lengthy period of time over Christmas. He agreed that she could go, but she had to be back by New Years’ Day.
[60] In December 2016 J.D. was only working part-time at Sobeys. In September 2016 he started a course at Sheridan College that D.D. and his mother found for him and encouraged him to go to. It was a computer course. J.D. was not really interested in doing this but did so to keep D.D. and his mother happy.
[61] In January 2017 he had been placed on academic suspension, but didn’t tell D.D. He only told her on January 14, 2017 when they were scheduled to see a school counsellor.
[62] In her trial testimony, D.D. essentially corroborated the events that surrounded these significant arguments, namely, the taking of the children’s money; the trip to Michigan for Christmas and the suspension from Sheridan College.
[63] After January 14, 2017, their relationship changed drastically. D.D. told him she had fallen out of love with him. She didn’t want him to kiss her or touch her.
[64] J.D. testified that none of the three allegations of sexual assault happened. He also denied he ever put anything in her French Vanilla coffee.
[65] With respect to blood test screening, he did them to keep her happy. They all came back negative. He had tests done in March, June/July, December, 2017 and one in June 2018, all negative.
[66] The audio recording was played again for J.D. He had no idea he was being recorded.
[67] The reason he was so angry with her in the audio recording was that on countless occasions she threatened to take the children away from him.
Cross-Examination by the Crown
[68] In cross-examination, J.D. confirmed, denied or acknowledged the following:
D.D. got along well with his parents and was dependant on him and his parents.
His parents sponsored her and the plan that everyone agreed to was that he and his parents would support D.D. until she got her SIN and then eventually found a job.
After the children were born everything was going well, with no major arguments.
D.D. was pushing to move to the condo so they could have their own space. They moved into the condo in August 2015.
All was good at the condo. They visited his parents daily. His parents were very involved with the children.
J.D. has anger toward her family – he wasn’t welcome in her family.
J.D. acknowledged that the biggest fight they had was over him taking the money, $3,500, out of the children’s account. As a result of this fight she threatened to take the kids.
She also threatened to take the kids on January 14, 2017 when she found out he had been suspended at Sheridan College.
After they had a serious fight about his suspension at school on January 14, 2017, D.D. started sleeping on the couch.
They agreed to be cordial in front of the kids. He stayed in his space and she stayed in her space. Any fighting would occur after the kids were in bed.
By this point in time he had no idea she had seen a lawyer.
The arguments were generally about the fact that she had no more affection for him; she’s out of love with him, she does not want him to touch her or kiss her. J.D. however, still thought there was a future for them.
D.D. would have an outburst just from him asking her how her day was. With one question she would launch into saying to leave her alone, she doesn’t love him and she’ll take the kids away.
With respect to the audio recording he denies that the sound at the start is him clapping his hands in her face.
He has never used those words heard in the audio before. This was a unique event but he does not remember when this conversation took place.
In January and February 2017 he was always calm but by April he hated her.
J.D. denied he had a drinking problem. He is a social drinker. He would have a couple of drinks one or two times per week. His drink of choice was tequila or rum and coke.
He didn’t have alcohol in the condo; no beer, no tequila and no wine.
He only put tequila in water bottles a couple of times. He was not buying tequila and bringing it to the condo.
He would put the tequila in water bottles as it was easier to keep it away from her.
He prepared it in the water bottles when he got home from work. He’d drink the tequila before bed at 10:00 p.m. He would drink it on the balcony while having a cigarette on the balcony as well, as he is a smoker.
In March 2017 D.D. and the kids were at a doctor’s appointment. At this appointment D.D. expressed to the doctor concerns about J.D.’s drinking. In front of his children, the doctor gave J.D. a requisition to get blood tests done. He went for those tests the same day.
In the OCL report the author states the following at page 12:
Mental Health and Alcohol and Drugs Mr. D. reported that he has no mental health issues. Regarding his drug and alcohol use he explained that prior to his arrest on April 12, 2017, he stated, “When D.D. and I got into an argument it was pretty bad. If got into an argument I would go to balcony and drink. Drink until I was intoxicated. I was drinking a few times per week not every day. Drink of choice Tequila. I would put tequila in water bottles and drink it”. He explained that he had been working for the same company for the past seven years and had never called in sick due to his drinking.
J.D. agreed that’s what he said except he did not say “Drink until I was intoxicated”. The rest of the quote is accurate. J.D. acknowledged that in his Dispute to the OCL Report he does not dispute this quotation at page 12.
After January 17, 2019 he had no physical contact with D.D.
He denies going to the couch when she was there. He never touched her.
He denies each of the allegations made by D.D. as it relates to the sexual assaults and the French Vanilla. Sometime after Feb 12, 2017 she stopped drinking the coffee so he stopped buying it for her.
POSITION OF THE DEFENCE
[69] The defence submits that the testimony of D.D. is not credible, nor is it reliable.
[70] The defence argues that D.D. cannot and should not be believed in many aspects of her testimony. The defence points to the following areas of her testimony that should concern the court:
- That after the birth of the children J.D. was drunk every single day, especially in light of the fact that all of his blood screening tests were negative.
- Her evidence with respect to the French Vanilla coffee and being drugged cannot be believed, especially since at no time does she attend to be tested to see if the French Vanilla did contain a drug.
- D.D. has a motive to fabricate. She wants to take control of the children and by fabricating these events she hopes to have an advantage in the family law action.
- By April 11, when she makes her statement to the police, she has already spoken to a lawyer in January.
- He knows she has spoken to a lawyer so he would not engage in any problematic behaviour that could affect his position on the custody issues. It makes no sense to act in this way and risk losing his children.
- D.D. told Officer Al-Jamal that there were approximately 10 incidents of sexual assault, two of which she can remember clearly.
- With respect to the French Vanilla incidents, how does it make sense, if this happened, that J.D. would not just put her pants back on so she would not have suspected any wrongdoing?
- Officer Al-Jamal tells Officer Vanderwal about approximately 10 incidents, and two she clearly remembers. She said nothing about the French Vanilla incidents in her KGB statement until the officer prompted her by asking her if there was something else she wanted to tell him.
- If there were 10 incidents in total and only three were sexual assaults, that leaves seven French Vanilla incidents, however, at trial she only referred to two French vanilla incidents. At no time did she see a doctor about these incidents.
- D.D. never confronts J.D. in the text messages or audio recording about the sexual assaults or the French Vanilla incidents.
- By making these allegations initially to the officer, she accomplished her goal of restricting access to J.D. following the laying of the charges. J.D. was only given supervised access.
- After D.D. meets with C.U. and before they went to the police, she told C.U. she felt safe to go home, even after, according to D.D., she had been drugged up to seven times.
- C.U. acknowledged at the preliminary hearing that it was possible D.D. told her about the sexual assaults after J.D. was charged, which is inconsistent with Carol’s trial testimony and D.D.’s testimony on this point.
- At no time did the officer in charge retrieve D.D.’s cell phone to determine when the audio recording was made. There was no investigation of the cell phone at all to see if the audio is a complete record, as if the texts are complete. The defence submits that this absence of evidence is problematic for the prosecution.
- The audio recording supports J.D.’s position that his focus is on the children – he agrees she is entitled to 25%. He agrees he has to pay alimony. He’s not threatening to put her on the street.
- D.D.’s animus toward J.D. was demonstrated clearly when, after she testified, she told the Crown the OCL report dealt with J.D.’s drinking, however, she didn’t tell the Crown J.D. filed a Dispute to the OCL report surrounding its comments on the issues of alcohol abuse.
- In one text she states, in part, “how can I want to have sex with u when the last thing I remember is you calling me a fking cunt???” She never accuses him of forcing himself on her or drugging her.
- D.D. wanted out of the marriage as J.D. is a lost cause, he is a sinking boat and she didn’t want to drown with him.
[71] The defence also points to the following inconsistencies:
- At trial she stated that with respect to the first incident she woke up because he was on top of her and she was sleeping until that point. In her KGB statement she says she woke up when he was inside her. At the preliminary hearing she said I was sleeping, waking up to him getting my pants down and underwear”.
- She was inconsistent about whether he pushed her legs apart or pulled them apart.
- With respect to the second incident at trial she states there was no kissing. At the preliminary hearing she stated there was touching and kissing.
- She was inconsistent with respect to the incident with M.D. At one point she stated he ripped her from my hands and at another point she stated he pulled her from my arms.
POSITION OF THE CROWN
[72] The Crown sets out the following factors and evidence that support the credibility and reliability of the complainant:
Exhibit 1, the audio recording, corroborates her evidence and narrative of what the relationship had deteriorated to by that point.
The audio recording clearly establishes the hatred and animus J.D. has towards her.
J.D. testified this audio recording was a one off. He had never spoken to her like that. It makes sense that she would have only this one, otherwise D.D. would have to be recording on a nightly basis just hoping, since he’s never spoken to her this way before, that one day he’ll explode and say those things. The Crown submits that scenario defies logic. It makes better sense that she decided to record this one to demonstrate how he treats her and to provide corroboration in that regard.
J.D. corroborates D.D.’s testimony about how he put his tequila in water bottles.
J.D. also corroborates D.D.’s testimony about her cutting off physical contact with him.
J.D. also corroborates D.D.’s testimony about how he and his parents were supporting her financially and that she had a good relationship with his parents.
There is no motive to fabricate on the part of D.D. D.D. stood to lose quite a lot if she fabricated these incidents and was then forced to leave the condo and the financial support she had been enjoying from J.D. and his parents. She had a financially comfortable life. She was living in a condo paid for by J.D. and his parents. She was provided with a car and a cell phone. All of the necessities of her life are being taken care of. She doesn’t have to work yet, while the children are still at home.
D.D. would have nothing to gain by going to the police unless these incidents happened. She stands to lose everything if she goes to the police with made up incidents.
If she was at home plotting to fabricate these incidents wouldn’t her text messages actually set out details of the sexual assaults? If she wanted sole custody she could have easily made up stories that he was assaulting the children. In short, none of these incidents are fabricated.
Although demeanour is only one factor, it is still one that the courts should consider. When she testified about the details of the sexual assault her demeanour changed. She had difficulty describing what happened.
Constable Al-Jamal testified that D.D. was crying and she was having a difficult time getting the details from D.D.
D.D. did all she could in the marriage and stayed with a view to saving it. She is the driving force to wanting to move to the condo. She encouraged J.D. to enroll at Sheridan College. She wanted to help with his drinking. She continued to foster a relationship with his parents. She has no one in Mississauga and so she did her best to stay until things escalated to that breaking point.
The Crown acknowledges that the largest inconsistency comes from the testimony of Officer Al-Jamal. Officer Al-Jamal said that D.D. told her J.D. sexually assaulted her approximately 10 times, two that she could remember.
The Crown submits that the inconsistency can be explained. D.D. was crying. It was hard to get the story out of her. This conversation or interview did not have the formality of being videotaped. It was a brief 20 minute conversation.
D.D. explained this inconsistency in that that number included the numerous times he would come down to the couch and check on her day with the French Vanilla incidents.
The other inconsistencies raised by the defence are really semantics, such as pulling her legs apart vs. pushing her legs apart; pulled M.D. from her hands versus ripped from her arms.
The Crown submits that overall she was unshaken in cross-examination. Her evidence was largely consistent and had a logical flow.
The Crown argues that the testimony of J.D. lacks credibility in the following areas:
- He denies the obvious, especially when it is corroborated by other evidence. He denies he has a drinking problem, yet the OCL report quotes, verbatim, J.D.’s admission and acknowledgment that he does. He denies he is verbally abusive to D.D., yet the audio recording demonstrates otherwise.
- He states he’s never been intoxicated, yet admits to a conviction for drinking and driving. He drinks hard liquor, tequila, yet states that at the age of 38 he has never been intoxicated.
- He hides his drinking and hides his tequila in water bottles.
- He denies he abuses alcohol, yet agrees to blood screening tests.
- His testimony that while they were all at a child’s doctor’s appointment the doctor would entertain the topic of the father’s drinking in front of the children and fill out a requisition form for an alcohol and drug blood screening test.
- J.D.’s testimony that the simple question of “How was your day?” caused D.D. to explode and threaten to take the kids away is not logical or credible.
- It is not credible that his behaviour and verbal abuse on the audio recording were a one off. He always spoke to her this way. That’s why this time she recorded it.
Analysis and Conclusion
[73] It is always useful and important to review and set out the fundamental legal principles that inform the analysis and discussions of the issues in this case.
[74] Firstly, J.D. is presumed to be innocent of these charges. He started this trial presumed to be innocent and the presumption stays with him throughout the trial, only defeated if and when Crown counsel satisfies the court that J.D. is guilty of the offences charged beyond a reasonable doubt.
[75] Secondly, the obligation to prove the guilt of the accused rests with Crown counsel and from start to finish that obligation or burden never shifts to the accused. It is also important to note that the standard of proof beyond a reasonable doubt applies only to the court’s final evaluation of guilt or innocence, it is not to be applied piecemeal to individual items or categories of evidence: R. v. Menard, [1998] 2 S.C.R. 109.
[76] Thirdly, the standard of proof, of course, in a criminal trial is beyond a reasonable doubt. A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the absence (lack) of evidence.
[77] If, at the end of the case, after considering all the evidence, I am sure that J.D. committed the offences, I should find J.D. guilty of it, since I would have been satisfied of his guilt of that offence beyond a reasonable doubt.
[78] If, at the end of the case, based on all of the evidence or the absence (lack) of evidence, or the credibility of one or more of the witnesses or the reliability of his or her evidence, I am not sure that J.D. committed the offences, I should find him not guilty of it.
[79] Finally, in this case, as the accused testified on his own behalf, it is necessary to follow the direction of Cory, J. in R. v. W.(D.), [1991] S.C.R. 742, which sets out the following:
If I believe J.D.’s evidence that he did not commit the offences charged, I must find him not guilty.
If, after a careful consideration of all the evidence, I am unable to decide whom to believe, I must find J.D. not guilty because Crown counsel would have failed to prove J.D.’s guilt beyond a reasonable doubt.
Even if I do not believe J.D.’s evidence, if it leaves me with a reasonable doubt about his guilt, I must find him not guilty.
Even if J.D.’s evidence does not leave me with a reasonable doubt of his guilt, I may convict him only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.
[80] In addition to those fundamental legal principles that apply to all criminal cases, the nature of the charges in the case at bar attract additional guiding legal principles.
[81] In R. v. A.B.A., 2019 ONCA 124, [2019] O.J. No. 833, (ONCA), the court set out the following at paras. 5–10:
Reliance upon stereotypical views about how victims of sexual assault would behave is an error of law: R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2, aff’g 2017 ABCA 237, 55 Alta. L.R. (6th) 213.
In A.R.J.D., the Alberta Court of Appeal allowed an appeal from an acquittal on charges of sexual assault of the accused’s step daughter, aged 11-16 at the time of the alleged offences. Although the trial judge cautioned himself against reliance upon myths of appropriate behaviour, he reasoned that “[a]s a matter of logic and common sense, one would expect that a victim of sexual abuse would demonstrate behaviours consistent with that abuse or at least some change of behaviour such as avoiding the perpetrator.”
The Alberta Court of Appeal described how seeming resort to “common sense” can mask reliance on stereotypical assumptions:
[6] An accused’s right to make full answer and defence and the criminal standard of proof beyond a reasonable doubt, do not allow reliance on prejudicial generalizations about sexual assault victims; this is of paramount importance when adjudicating matters involving child complainants. This can happen when juries and the judiciary do not even realize they are relying on prejudicial generalizations, leading to the drawing of inferences that are not part of the record but are instead, based on their own “common sense and logic” which is, in fact, unfair and inaccurate.
[7] Sometimes this impermissible form of reasoning is opaque and therefore more difficult to identify and correct on appellate review. But this case is an example where the impermissible reliance is patent and cannot stand. This appeal represents an example of how deeply ingrained and seductive these myths and stereotypes can be. In this judicial analysis the trial judge carefully and correctly cautioned himself against reliance on certain myths and then proceeded to rely on another—one he obviously did not recognize, and cloaked as it was with the faux imprimatur of common sense.
[8] In our view, a core underlying tension is revealed in this trial judgment—whether, in assessing the complainant’s credibility, it was proper for the trial judge to rely on what he presumed to be the “expected” conduct of a victim of sexual abuse after an assault, and comparing the specific behaviour of the complainant to that expectation. We must deal with the issue: is the expectation of avoidant conduct or clear behavioural changes by a sexual assault victim a matter of logic and common sense, or [is it] just another stereotype, or myth, that cannot be supported either as a matter of logic or as an available inference on this record?
[9] To be clear, reliance on a stereotype to found an assessment of credibility bearing on reasonable doubt is impermissible—it is an error of law. Accordingly, reasonable doubt is not a shield for appellate review if that doubt is informed by stereotypical and therefore prejudicial reasoning. Similarly, to suggest that stereotypical thinking is merely logic or common sense is a licence for it to continue unmasked and unabated. That is why, as a matter of law, this type of reasoning must not be insulated from appellate review.
Here too the trial judge instructed herself that “the expectation of how a victim of sexual assault will, or should, behave must not be assessed on the basis of stereotypes, generalizations and myths”: at para. 22. However, she then proceeded to adopt a “common sense” approach and negatively assess the complainant’s credibility based on a lack of correspondence between her behaviour and the behaviour one would expect of a person “who ha[d] been brutally sexually assaulted”.
The trial judge began her credibility analysis with the following observation at para. 23:
Unlike the child complainant in R. v. A.R.D., [the complainant] is an adult female. From her testimony we learned that she suffers from agoraphobia (fear of crowds and public places), post-traumatic stress disorder and fibromyalgia. She is on ODSP. However, there was no evidence to suggest she is a member of a particularly vulnerable sector of society. I have no reason to believe she is unable to care for herself and make appropriate decisions called for in the circumstances in order to protect herself from harm or further harm.
Inherent in this approach is a comparison of the complainant’s behaviour to what the trial judge viewed was “appropriate” behaviour that the trial judge would have expected of an adult threatened with a sexual assault or a victim of sexual assault. The issue here was not what steps the complainant should have taken to protect herself, but, rather, whether she consented to sexual activity with the respondent.
[82] In R. v. M.H., [2018] O.J. No. 6870, Trimble, J. conducts an informative review on assessing credibility at paras. 76-80 as follows:
The credibility of the witness is determined by addressing two questions: 1) is the witness “believable”, and 2) is the witness’s evidence “reliable”.
Trial judges, like juries, rely on many factors in assessing the weight to be given to the testimony of witnesses based on an assessment of that witness' reliability and ultimate credibility. Triers of fact can also believe some, none, or all of the testimony of any particular witness.
Assessing credibility involves assessing many factors. As the Ontario Court of Appeal said in R. v. M.W.M. [1998] O.J. No. 4847 at para. 3:
…In weighing credibility, it is appropriate for a trier of fact to consider a witness' motive or lack of motive to fabricate and, although the trial judge dealt with the subject at considerable length, we are not persuaded that he shifted the onus to the appellant to prove such motive nor that he equated credibility with the absence of such motive…
Some of these factors are:
a) The demeanour of the witness – this is an important factor, although not the only factor. People react differently in what, to them, is a strange environment. Witnesses come from different cultural and social backgrounds. All of this means that the non-verbal cues may be difficult to assess. Findings of credibility should not be made on demeanour, alone. See: R. v. L.H., [2007] O.J. No. 1588 (S.C.J.), para. 83 to 86, R. v. K.A. (1999), 123 O.A.C. 161 (C.A.), para. 172. b) Does the evidence of the Witness make sense? - is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and condition? See: Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.). c) Internal Consistency. Does the evidence have an internal consistency and logical flow? R. v. C.H., [1999] N.J. No. 273 (Nfld C.A.). d) Prior inconsistencies. Is the evidence consistent with prior statements (e.g. Discovery evidence)? How significant are the differences, and are they adequately explained? R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788. e) Is there independent confirming or contradicting evidence? R. v. Khan, [1990] 2 S.C.R. 531. (S.C.C.). f) Interest in the outcome and a motive to fabricate. Does the witness have such motivation? The mere motivation to win or lose the case is not sufficient. The interest must be beyond that. See: R. v. S.D, 2007 ONCA 243, 218 C.C.C. (3d) 323. The absence of evidence of motive to lie does not mean that there is an absence of motive. There is a difference between an absence of apparent motive and proven absence of motive. The Court must remember that there is no onus on the defence. See: R v. L.L. 2009 ONCA 413, [2009] O.J. No. 2029 (C.A.).
No one of these factors is determinative. In addressing the credibility and reliability of each of the witnesses I have considered all of these factors as they apply to each witness. I have also considered the alleged numerous frailties in the witnesses’ testimony that were highlighted in defence counsel’s submissions.
[83] I start my analysis by reviewing J.D.’s testimony. J.D.’s testimony was problematic and at times pointed directly at a person who was being careless with the truth.
[84] A great deal of the testimony from D.D. related to J.D.’s drinking. Although J.D. is not charged with abusing alcohol, I am troubled by his testimony on that issue.
[85] The most significant and glaring example that supports my concern relates to his testimony with respect to the OCL report at page 12. I will repeat what the author of the report noted as verbatim comments from J.D.:
Mr. D. reported that he has no mental health issue. Regarding his drug and alcohol use he explained that prior to his arrest on April 12, 2017, he stated, “When D.D. and I got into an argument it was pretty bad. It got into an argument I would go to balcony and drink. Drink until I was intoxicated. I was drinking a few times per week not every day. Drink of choice Tequila. I would put tequila in water bottles and drink it”. He explained that he had been working for the same company for the past seven years and had never called in sick due to his drinking.
[86] I do not accept J.D.’s testimony that everything that was quoted is accurate except the words “Drink until I was intoxicated.” I find it difficult to see why the author of the report would quote all of it accurately and then somehow just add words that he didn’t say. It is logical and reasonable to conclude that all of the words quoted were in fact said by J.D.
[87] There is no doubt that J.D. is attempting to minimize his alcohol use. I am satisfied that the reason he is doing so is to cast himself in a favourable light on this issue for his upcoming custody and access trial. The quotation in the OCL report at para. 12 flies directly in the face of that minimization and points directly at J.D. having a problem with alcohol.
[88] Further, J.D. filed a Dispute to the OCL report and disputed numerous statements made in the OCL report as it related to his drinking. Curiously, the Dispute does not reference page 12 and the verbatim statements made by J.D. as set out in the OCL.
[89] The other aspect that I find troubling relating to his drinking is found in the manner in which he engages in his drinking. For someone who has no drinking issues and drinks only as a social drinker, it begs the question as to why he would feel the need to hide his drinking and hide his alcohol. Why does he feel the need to hide his tequila in water bottles? This whole process makes little sense.
[90] He testified that he has never been intoxicated but acknowledges a conviction for drinking and driving.
[91] With all of these concerns, I find it difficult to accept his testimony that he has never been intoxicated. He is quoted by the OCL as stating, “Drink until I was intoxicated.”
[92] In summary, I do not accept J.D.’s testimony as it relates to his drinking. However, as I indicated, J.D. is not charged with abusing alcohol.
[93] The audio recording filed as Exhibit 1 does not indicate what date the recording was made. The testimony on this recording appears to suggest it is made after the third incident but prior to the April 11, 2017 KGB statement to the police. It also takes place after D.D. had consulted with a lawyer in January 2017.
[94] Clearly, by this point in time D.D. has advised J.D. she’s leaving. Clearly, J.D. hates D.D. and has now placed her as his “worst enemy on the face of the planet.”
[95] There is no discussion about the alleged sexual assaults. D.D. never confronts him on these alleged incidents. There is also no discussion about J.D.’s alcohol abuse and how that is an important factor as to why she is leaving.
[96] Most of the audio relates to finances and the issues surrounding the condo and alimony. There is no discussion about the children, child support or custody and access.
[97] It is difficult from this one audio recording to find and conclude with certainty that this episode depicts the nature of the relationship from January 2017 to April 2017. D.D. testified that at the time she decided to record this conversation she had no idea what he was going to say. This statement, however, would seem to contradict her position that this recording depicts the nature of their relationship. If this is how he normally speaks to her and treats her she would have had an idea of how he would be speaking to her.
[98] J.D. clearly has animus towards D.D. The difficulty arises in that D.D.’s cell phone was never given to the police. Were there other audio recordings before or after this one? Were there text messages or emails before or after this recording? Would any of those other recordings or messages, if they existed, put this one recording into context? We will never know. This lack of evidence or lack of investigation with respect to the cell phone creates an evidentiary gap. With such an evidentiary gap I cannot say with any certainty that this audio recording is anything but a conversation at a point in time. The marriage is clearly in trouble. It is difficult to infer from this one recording that it depicts the day to day nature of their relationship.
[99] However, again, J.D. is not charged with having a troubled marriage. He is charged with three counts of sexual assault.
[100] There are portions of J.D.’s testimony that is substantially similar to that given by D.D. Some examples of this include the following:
- That D.D. got along well with J.D.’s parents.
- J.D.’s parents assisted D.D. financially. They assisted her with a vehicle, a cell phone and other living expenses.
- They moved into a condo owned by J.D. and his mom.
- It was agreed by everyone that D.D. would not have to work while the children were still at home and not yet commenced school.
- J.D.’s evidence corroborated D.D.’s testimony that he did in fact take the $3,500 from the children’s account and then returned it with his tax refund. He agreed that this event resulted in a major argument.
- He also talked about another major argument relating to D.D.’s wish to spend a longer period of time in Michigan in December for the 2016 Christmas year.
- He acknowledged as well that sometime in January following another argument about his suspension from Sheridan College D.D. began sleeping on the couch.
[101] The significant difference, of course, in their testimony relates to the three sexual assault incidents and the circumstances surrounding them. J.D. denies the sexual assaults took place. J.D. also denies that the incidents with the French Vanilla took place.
[102] Their evidence is also very different as it relates to J.D.’s drinking.
[103] When I consider J.D.’s evidence in its entirety and match it up against the totality of the evidence called at trial, I accept some of his evidence, but I am unable to accept all of it.
[104] The significant area of his testimony I cannot accept relates to his drinking and I have already set out my reasons in that regard.
[105] The testimony of D.D. must be analyzed carefully and again within the context of the totality of the evidence called at trial. J.D. does corroborate many aspects of D.D.’s testimony and I have already reviewed some of the areas where her evidence and J.D.’s evidence essentially converge.
[106] The cross-examination by the defence on the suggested inconsistencies relating to whether her legs were “pulled” or “pushed” apart is of no concern to me. I agree with the Crown that this is really a semantics issue. The point is she stated her legs were apart.
[107] The same is true for D.D.’s testimony relating to M.D. being pulled from her hands or ripped from her arms. It is really semantics, the point being that M.D. is taken from her by J.D.
[108] I have considered the testimony of C.U. and find it difficult to find that her testimony is supportive of D.D. Ms. U. is unable to say with certainty that D.D. confided in her before D.D. went to police on April 11 2017. Ms. U. acknowledged at the preliminary hearing that it was possible D.D. told her about the sexual assaults after J.D. was charged, which is inconsistent with her trial testimony and the trial testimony of D.D. on this point. Ms. U. could not recall the particulars of her conversations with D.D.
[109] Further Ms. U. is not asked to provide a statement until July 2017, almost three months after D.D. indicated she spoke to her.
[110] There are other inconsistencies in D.D.’s testimony that are problematic. The chronology of events with respect to the first incident. Did she wake up because he was on top of her and she was sleeping until that point or did she wake up when he was inside her or was she sleeping and waking up to him getting her pants and underwear down?
[111] With respect to the second incident was there no kissing at all or, as she stated at the preliminary hearing, was there touching and kissing.
[112] The most significant inconsistency comes from the testimony of Officer Al-Jamal. D.D. told Officer Al-Jamal there were approximately 10 incidents of sexual assault, two of which she can remember clearly. If she can only remember two clearly how can she say there were about ten? She told Officer Al-Jamal she could only remember two because she had been drugged with respect to the others.
[113] In her KGB statement and again at trial D.D. talks about the sexual assaults that J.D. is charged with.
[114] D.D. attempted to explain this obvious inconsistency by stating that ten incidents included the French Vanilla incidents. So if there were only two or three sexual assaults that would leave seven or eight French Vanilla incidents. The difficulty with this is that D.D. only testified to two French Vanilla incidents.
[115] D.D.’s further explanation on this inconsistency is that the ten included the times J.D. came down to where she was sleeping on the couch. That explanation however, is difficult to accept. Why would she not have said just that instead of characterizing that conduct as sexual assault?
[116] The approximately ten sexual assaults, therefore, included the three sexual assaults, the two French Vanilla incidents and the times he came to the couch to check on her.
[117] In her KGB statement she only recalls the French Vanilla incidents after prompting by the officer. The following exchange is relevant:
Q. Now, you mentioned, um, something else to the first officer you spoke to. Do you remember? Or do you know what I’m eluding to?
A. Um, I’m trying to think. I can’t remember everything.
Q. So, you’ve given me a couple incidents; right? Like…
A. Yeah.
Q. …around your birthday was the first time?
A. Yes.
Q. Or, no – I’m sorry. It wasn’t.
A. Oh, there was a time – or a couple – like, I’m a light sleeper…
Q. Yeah.
A. …since my kids were born.
Q. Yeah. Makes sense.
A. Uh, they sneeze and I wake up…
Q. Yeah.
A. …kind of thing. So, there was a time where I fell asleep on the couch…
Q. Mm-h Mm-hmm.
A. … and I woke up in my bed with no pants on. And I don’t remember anything.
Q. Mm’hmm.
A. I – I’m – he used to bring me coffee every night. I don’t know – I don’t know for sure if he did anything, but for me to sleep like that and not wake up….
Q. Not normal?
A. That’s not normal for me at all.
Q. Okay. That was just one time that happened?
A. Um, it was a couple times where I couldn’t remember what really happened the night before.
Q. You don’t remember having sex or…
A. No. I don’t remember.
Q. …being forced upon.
A. Just waking up in the – in the bedroom, and not knowing how I got there.
Q. Right. Well, is there anything else?
A. Um, I’m trying to think about….
Q. I’m not ask – I’m not suggesting there is.
A. No.
Q. I’m just asking you is there anything else? Is that all you remember? Is there something else you wanna talk about or…
A. Um….
Q. …do you think you’ve given me everything?
A. It’s hard. I have so many things.
Q. Mm’hmm.
A. I just can’t even, like…
Q. Mm’hmm.
A. …but I – I think I gave you a good…
Q. I think you did.
A. …big story. I already actually had to write down the story for my lawyer. And it came to…
Q. Okay.
A. …I think seven pages.
[118] D.D. gave her statement to the police on April 11, 2017. She met with her lawyer in January 2017. These alleged sexual assaults and French Vanilla incidents took place after she met with her lawyer in January. It is not clear to me what she means when she says she already actually had to write seven pages for her lawyer since the sexual assaults had not taken place yet.
[119] I appreciate that at the time D.D. spoke to Officer Al-Jamal she was crying and it was difficult to tell her story and provide details. This initial conversation was brief, lasting only 20 minutes. It was not taken within the formalities of a KGB videotaped statement. Having said that, however, I find D.D.’s explanation for this inconsistency troubling. It may be that having been confronted with this inconsistency in her version of events she has engaged in after the fact justification for having told the Officer he had sexually assaulted her approximately 10 times.
[120] D.D. and J.D. are on the eve of a nine day custody and access trial commencing in May 2019. They both testified at this trial and portrayed themselves in a way that would help each of them at their family law trial, especially as it related to J.D.’s drinking.
[121] Can I say with any certainty that D.D., motivated by wishing to have an advantage at the custody trial, fabricated these incidents? The answer is no. Is it possible? The answer is yes. On the other hand, can I say that the Crown has proven these charges beyond a reasonable doubt? The answer to this question is no.
[122] Reasonable doubt logically arises from the evidence or lack of evidence. The lack of evidence in this case related to the absence of hearing from J.D.’s parents. Their evidence would have been helpful on the issues relating to D.D. and J.D.’s relationship, aspects of J.D.’s drinking, the circumstances and disappointment revolving around J.D.’s suspension from Sheridan College and finally, overall observations of the conduct between D.D. and J.D.
[123] The Crown did not subpoena J.D.’s parents on the basis that she thought their evidence may not be helpful to the prosecution. After J.D. was charged his parents took D.D.’s vehicle from her and bailed J.D. out of jail. However, D.D. was allowed to stay in the condo until she obtained housing in Niagara Falls in December.
[124] J.D. did not call his parents at his trial either. However, J.D. has no obligation to present evidence or to prove anything. It is the Crown’s burden to prove J.D.’s guilt beyond a reasonable doubt.
[125] It would have been helpful to have had a more complete investigation of D.D.’s cell phone. The one audio recording and limited text messages makes it difficult to determine if these items are a point in time or an accurate depiction of their relationship on a day-to-day basis. Again, this absence of evidence causes me to pause in my analysis of their relationship.
[126] The W. (D.) instruction sets out the following at step 2:
If, after a careful consideration of all the evidence, I am unable to or cannot decide whom to believe, I must find the accused not guilty because Crown counsel would have failed to prove the accused’s guilt beyond a reasonable doubt.
[127] In considering the evidence in its totality, all of the evidence, I cannot decide whom to believe. The totality of the evidence called at trial, combined with the absence of evidence not heard at the trial, falls short of proof of these charges beyond a reasonable doubt. In those circumstances, the Crown has failed to prove these charges beyond a reasonable doubt. The Crown has failed to meet the standard of proof which the law requires and the presumption of innocence has not been defeated.
DISPOSITION
[128] There will be findings of not guilty on all three counts.
Fragomeni J.
Released: May 2, 2019
Summary Information
COURT FILE NO.: CR-17-821 DATE: 20190502 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - J.D. REASONS FOR JUDGMENT Fragomeni J. Released: May 2, 2019