Superior Court of Justice

COURT FILE NO.: CR-18-0066-000 DATE: 2019-06-21

B E T W E E N:

HER MAJESTY THE QUEEN A. Brown, for the Crown

- and -

T.B. K. Matthews, for the Accused Accused

HEARD: March 25, March 26, March 27, April 4, 2019 at Thunder Bay, Ontario Madam Justice T. J. Nieckarz

WARNING AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

Reasons for Judgment

Overview

[1] The Accused is charged with one count of sexual assault contrary to section 271 of the Criminal Code, and one count of touching a person under the age of 16 years for a sexual purpose, contrary to section 151 of the Code.

[2] The Complainant alleges that on one occasion, late at night, she encountered the Accused and his friend while she was walking around her home community of the Gull Bay First Nation. She smoked marijuana with the Accused and his friend, and then the three of them went for a walk. The Accused suddenly pushed her to the ground and forced her to perform fellatio on him until he ejaculated. His friend, P.L.K., continued to walk and did not stop to assist. The Complainant was 13, almost 14 years old at the time, while the Accused was approximately 23 years old.

[3] The Accused denies the allegations. He acknowledges having been out one evening with P.L.K. and having encountered the Complainant. He acknowledges that they smoked marijuana and went for a walk. He denies any sexual interaction with the Complainant whatsoever.

[4] The Accused, the Complainant, and P.L.K. were the primary witnesses in this matter. All three individuals had differing versions of the events of the night in question. Central to a disposition in this case is an assessment of the credibility of these three witnesses, and the reliability of their evidence in determining whether the Crown has proven its case beyond a reasonable doubt.

The Evidence

Constable Edmund King Jr.

[5] Constable King is an officer with the Ontario Provincial Police and Gull Bay Police Service. He first became involved with this matter on February 14, 2016 when he attended at the residence of the Complainant for an unrelated matter. He interviewed the Complainant on that date with respect to the allegations. At the time, she was approximately 15 years old. He subsequently arranged to conduct a video interview at the Armstrong OPP detachment, where he was assisted by another officer in the conduct of the interview. The Complainant’s mother was present during the interview.

The Complainant

[6] The Complainant was 18 years old at the time of trial. Pursuant to an application made by the Crown under s. 486.2(2) of the Criminal Code, which I granted over the objection of the Defence, she testified by way of closed circuit television with a support worker present.

[7] There was some confusion in the evidence of the Complainant as to the timing of the alleged incident. Ultimately she testified that to the best of her recollection the incident occurred when she was 13, almost 14 years old.

[8] The Complainant testified that she snuck out of her grandmother’s home at approximately 11:00 p.m. to go for a walk in her home community of the Gull Bay First Nation. She went out to find her mother, who was not home.

[9] While out on her walk she encountered the Accused, an older cousin, and who she was familiar with because he would come by her home to visit with her two older sisters who were closer in age to him.

[10] The Complainant testified that the Accused was with P.L.K., sitting on a garbage box in between two homes located on Front Street. She did not know P.L.K. until that night.

[11] When she approached the two men they offered her a smoke of a marijuana cigarette (a “joint”) and she accepted. All three of them shared the joint until it was finished.

[12] When they were finished, the Complainant wanted to continue on her walk to find her mother. The Accused asked if he and P.L.K. could come, and she agreed.

[13] The Complainant further testified that they walked for approximately 10 minutes before the two men stopped by the side of the road to urinate. She kept walking and they caught up with her. The Accused walked between the Complainant and P.L.K. At this point, there was nothing about the interaction between the three that caused the Complainant any concern. There were no discussions of a sexual nature and no physical interaction. Although the road was quiet, with no vehicles or people, she testified that she felt safe.

[14] The Complainant describes how the trio continued walking along Back Street until they reached the cemetery. She denied the allegations of the Accused and P.L.K. that she entered the cemetery at any point. She further denied having played a game called “touch the cross” with the two men that night.

[15] The Complainant testified that the cemetery was on the right side of the street. On the left side were some houses which had lights on. There was also lighting from the church. She described the lighting on the street as dim, and not extending to the ditch.

[16] The Complainant acknowledged that had someone walked by, the lighting was such that they would have been able to see what was happening.

[17] The evidence of the Complainant with respect to incident itself was as follows:

a) She was walking on the right side of the Accused, while P.L.K. was on the left. When they reached the cemetery area on Back Street, the Accused pushed her, and she fell to the ground and into the ditch. There was some confusion in the evidence of the Complainant that was revealed in cross-examination with respect to the mechanics of the “push”. Ultimately her evidence was that she was pushed with two hands, from the back and the side. b) As she rose to her knees trying to get up, she noticed the Accused unzipping his pants, exposing his penis. He had his back to the road. She said “Stop, what are you doing? I am your little cousin”. c) He then grabbed the back of her head with his left hand and forced his penis into her mouth as he moved back and forth. She recalled feeling that she was being choked with his penis. d) She tried to push him away from her with both of her hands but was unsuccessful. She also tried to pull away but was unsuccessful. e) The Accused ejaculated into her mouth. He then pulled up his pants and forced her up with his hands. f) The Accused then said “Good night” and threatened that if she told the police he would kill her. In cross-examination she changed this to “If you tell the cops I’ll do it again”. g) The Accused then started walking back in the direction they originally came from.

[18] She describes feeling terrified at the time of the alleged assault and that she froze. She could not yell and could not run. Once the Accused had left, she ran or walked quickly in the other direction until she encountered P.L.K.

[19] With respect to P.L.K., the evidence of the Complainant in her examination-in-chief was that during the alleged incident she assumed he kept walking as she could not see him from where she was. She believed that P.L.K. must have seen the push but said nothing, kept walking and did not look back.

[20] In cross-examination the evidence of the Complainant was different. She indicated that:

a) She could see P.L.K. as she was trying to get up. b) At the point when she realized that the Accused was taking down his pants, she could still see P.L.K. She saw him until he turned down another street, which was no more than 20 meters away.

[21] When she encountered P.L.K. on her way home, the Complainant testified that she told him what had happened, hoping that he would tell someone. She described his response as “What?” She did not respond further and kept walking. When she arrived back home she went to the washroom and brushed her teeth until her gums bled. She did not tell her grandmother or anyone else that night. She did not speak to either the Accused or P.L.K. again after that night.

The Accused

[22] The Accused testified that he is currently 29 years old, and would have been approximately 23 or 24 years old when the incident is alleged to have happened.

[23] At the time of the alleged incident he was a resident of the Gull Bay First Nation, living with his common law spouse, her daughter, and their child together.

[24] The Accused was familiar with the Complainant, who is the granddaughter of his Aunt. He stated that while he had spent time with the Complainant’s sisters, who were close in age to him, he did not “hang out” with the Complainant.

[25] The Accused described the night as follows:

a) He left his house to go for a walk with his spouse’s brother, and childhood friend, P.L.K. They had been playing video games at his home, had drank approximately three beer each. They went for a walk because they needed a lighter for the joint. b) They walked to P.L.K.’s aunt’s home, located towards the bottom of Front Street. They noticed the Complainant coming down the road. He agreed that the time was approximately 11:00 p.m. c) The Complainant was accompanied by her dog. She gave them her lighter and asked to smoke the joint with them. The three proceeded to smoke, and pass around the joint. d) He and P.L.K. were “sober”. After smoking the joint he described feeling “more calm”. He described P.L.K. as also calm. e) Once they were finished smoking they went for a walk around the community. He denied that either he or P.L.K. stopped on the side of the road to urinate. f) He did not recall any discussion that night while on the walk, other than a discussion with P.L.K. about a game they played as youth called “touch the cross”. The game involves one person at a time running into the cemetery in the dark, touching the large cross in the centre of the cemetery, and running back out. When that individual comes out, another goes in. g) When they approached the cemetery at the gate they began to play the game. P.L.K. ran in first, and came back out again. The Accused then went in and decided he wanted to hide and scare the other two, so he did not come back out. He then saw someone that he believed to be the Complainant come in, stand by the cross and leave. He did not hear anyone while he was in the cemetery. When no one came to find him he left the cemetery. h) The entire game, including him hiding took less than 10 minutes. He estimated he was hiding for a couple of minutes only. i) He did not hear anyone call out to him or the Complainant. j) When he was leaving the cemetery he did not see anyone and did not look for the Complainant or P.L.K. He returned home, not stopping along the way.

[26] The Accused testified that he had no further contact with the Complainant or P.L.K. that night or the next day. He had no discussions with P.L.K. or the Complainant about that particular night, or the game, at all. In 2014 the Complainant’s grandmother called him a “rapist” when she saw him out, but said no more. Another woman from the community has made a comment to him also. Otherwise, he knew nothing of the accusations against him until 2016 when he learned he was going to be charged.

[27] The Accused adamantly denied any physical or sexual interaction with the Complainant that night. He denied having pushed her. He denied having had his pants down. He denied having exposed his penis at any point. He denied having choked her or threatened her. He denied having forced his himself upon the Complainant that night or ever, in any manner. He denied ever having had any type of sexual encounter with the Complainant. He described the interaction between the three individuals that night as “normal” with no hostility whatsoever.

P.L.K.

[28] P.L.K. acknowledged having some difficulty recalling the events of the night at issue. Without reciting his entire testimony, his recollection of the events was as follows:

a) He was at his home and decided to go for a walk. He was not drinking that night. He was not playing video games with the Accused. P.L.K. met up with the Accused as P.L.K. was walking out of his driveway. b) Sometime before midnight he and the Accused were at the top of Front Street by the former Scrooge’s Store when they encountered the Complainant walking. He denies having gone down Front Street as far as where the Accused and the Complainant allege that the three met up. c) When they met the Complainant she was alone. She did not have a dog with her. d) The Accused and P.L.K. asked the Complainant for a lighter and she gave them one. She asked them for a cigarette but they only had one, which the Accused smoked. He was positive that it was only a tobacco cigarette. e) The three continued to walk together until they reached the cemetery. He adamantly denied stopping on the side of the road to urinate. f) When they reached the cemetery they decided to play “touch the cross”. The gate to the cemetery was closed so he jumped the fence, touched the cross and returned. g) The Accused then went in for his turn. Almost immediately thereafter the Complainant went. He estimates that they were only steps apart. The Complainant tried to wave him in, but he told her that there was only one person at a time permitted. He stayed at the gate while the Complainant, with the Accused slightly ahead of her went in. h) Other than the brief time it took him to touch the cross, and when the Accused and Complainant were inside the cemetery together, he had not otherwise left them alone that night. i) P.L.K. remained at the entrance standing around. He yelled the Accused and Complainant’s names. When he did not receive a response he turned around and started walking away. He walked for a bit and then turned around to go back towards the gate because he “felt weird”. There was nothing specific that caused him to feel “weird”, he just did not feel right leaving and not knowing where they were in case there were animals in the area. j) The time he spent waiting, left to go for a walk, and returned was between 5 to 7 minutes total. k) When he arrived back at the gate he saw the Complainant standing there. He asked where the Accused was, and she pointed towards the bush. She said she wanted her lighter back from the Accused. She appeared calm to him and spoke in a quiet, soft voice. l) They began walking in the direction of where she thought the Accused was. P.L.K. called his name, and asked where the lighter was. When the Accused did not answer, P.L.K. thought he was not there any longer and decided to go home. m) As they started walking back towards Back Street, the Complainant said she had something to tell him. She told him “he made me suck his cock”. P.L.K. said he asked her why she did not yell out to him. He was shocked at the allegation and did not believe her. He described her as “big” in size, and asked her why she did not fight or scream or defend herself. She was looking at her feet and said that she did not know. She did not appear disheveled and he saw no signs of any violence. Her demeanour was no different than any other point in the night; quiet, calm and looking down. He did not think she was behaving like someone who had just experienced an assault. n) She asked him to walk her home. They walked part of the way together, and then each went separate ways home. He did not walk her all the way home.

[29] P.L.K. further testified that the following day he received a Facebook message from the Complainant asking for her lighter. He then received a further message saying “never mind, I don’t want it”. He did not respond to the messages and had no further contact with the Complainant after that night.

[30] P.L.K. denies ever having discussed the Complainant’s allegations with the Accused at any point in time. His evidence was that the only person he told was a cousin. He did not tell anyone because he doubted that it had happened. If it did happen, he thought it may have been consensual and he did not want to “ruin” the Accused’s life.

[31] He acknowledged that he is confused about the details of that night, but he remembers specifically playing the game, the Accused and the Complainant being gone in the cemetery, him going back and meeting the Complainant at the cemetery gate, and then the Complainant’s allegations.

The Legal Framework

The Presumption of Innocence and Proof Beyond a Reasonable Doubt

[32] The Accused, like every person who is charged with a criminal offence, is presumed to be innocent of the charge unless and until the Crown proves beyond a reasonable doubt that they are guilty. To secure a conviction, the Crown must prove the essential elements of the charges against the Accused to a point of proof beyond reasonable doubt. This standard of proof is very stringent.

[33] Proof “beyond a reasonable doubt” has no precise definition. In R. v. Lifchus, [1997] 3 S.C.R. 320, the Supreme Court of Canada outlined a suggested model jury charge with respect to reasonable doubt. It has become the definitive guide for criminal trial courts in Canada, and reads as follows:

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.

[34] As stated by Molloy J. in R. v. Nyznik, 2017 ONSC 4392, at para. 7:

[…] The bottom line is that probable or likely guilt is insufficient. If all I can say is that the defendants in this case are likely guilty, I must acquit. It would not be safe to convict someone of a criminal offence with only that degree of confidence. Before I can find the defendants guilty, I must be sure that they committed the offence charged.

Reasonable Doubt and Sexual Assault Cases

[35] The standard of proof beyond a reasonable doubt should not be applied piecemeal to individual items or categories of evidence. The Crown is not required to prove beyond a reasonable doubt any single fact, or any item of evidence, unless that fact or item is an element of the offence or an element of a defence: R. v. B.D., 2011 ONCA 51, at para. 96.

[36] As Defence counsel stated in his argument, if I accept the Complainant’s evidence in terms of the nature of the sexual assault then the Accused should be found guilty of sexual assault, as well as the secondary offence on the indictment. The essential elements of each offence will have been made out.

[37] To assist in the application of the burden of proof in cases such as this, when there are competing versions of what happened, the Supreme Court of Canada provided the analysis to be followed in R. v. W.(D.), [1991] 1 S.C.R. 742. The analysis described at paragraph 28 of W.(D.) states:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[38] As Molloy J., explained further in R. v. Nyznik, at para. 14:

…there is no particular magic in the incantation of these three steps. It is not essential that the trial judge rigidly follow the three steps in the W.(D.) instruction. What is critical is for the judge to avoid turning the fact-finding exercise into a choice as to which is the more credible version of the events. This cannot be a credibility contest, with a conviction if the complainant wins the contest and an acquittal if the defendant does. To treat it as such would be to improperly shift the burden of proof. Rather, if the defence evidence, seen in the context of all the evidence, raises a reasonable doubt, then the trial judge cannot convict. Even in a situation where the trial judge completely rejects the defence evidence and has no reasonable doubt as a result of that evidence, he or she must then assess the evidence as a whole and determine whether the Crown has discharged its burden of proving guilt beyond a reasonable doubt…

[39] Steps one and two of the W.(D.) framework must be addressed in the context of all of the evidence. Considering the evidence of the accused in isolation, without weighing it against other evidence is incorrect. No evidence should ever be assessed in isolation when determining credibility: R. v. Hoohing, 2007 ONCA 577, at para. 15.

[40] Acceptance of a strong Crown case that establishes guilt beyond a reasonable doubt at step three of W.(D.) can be sufficient to reject an accused’s exculpatory evidence at step one. The Ontario Court of Appeal made this clear in R. v. D (J.J.R.), at para. 53:

An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.

[41] With respect to the second step in the W.(D.) analysis - you must acquit if you do not believe the testimony of the accused but you are left in reasonable doubt by it - this does not require complete rejection or actual disbelief of the accused. It refers to the judge being unable to believe the accused but being left in a state of uncertainty where the trier of fact simply does not know what to believe. This second step of W.(D.) captures the middle ground of being unsure where the truth of the matter lies. If, after a careful consideration of all of the evidence, a trier of fact is unable to decide whom to believe, the accused must be acquitted: R. v. S. (J.H.), [2008] 2 S.C.R. 152, 2008 SCC 30, at para. 11.

Credibility vs. Reliability

[42] As identified at the outset, this is a case that turns on an assessment of the credibility of the three key witnesses, as well as the reliability of their evidence.

[43] Reliability has to do with the accuracy of a witness’ evidence – whether he or she has a good memory and whether they are able to recount the details of the event. Reliability may be affected by the passage of time or something that may have impaired their memory at the time or since.

[44] Credibility has to do with whether the witness is telling the truth. Just because a witness is determined to be credible, does not mean that a case has been proven beyond a reasonable doubt.

[45] A witness who is not telling the truth is not giving reliable evidence. However, the reverse is not the case. Sometimes an honest witness will simply be mistaken in their recollection. Although they are credible, their evidence may therefore not be reliable. Only evidence that is both reliable and credible can support a finding of guilt beyond a reasonable doubt.

[46] In R. v. M. (A.), 2014 ONCA 769, the Court of Appeal succinctly set out the following principles, which are particularly relevant to this case:

[11] […] Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: W. (R.), at p. 134 S.C.R. See, also, R. v. Kendall, [1962] S.C.R. 469.

[12] Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.), at p. 354 C.C.C., leave to appeal to S.C.C. refused [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

[13] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354 C.C.C.

[14] Fifth, a trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness’ evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), [2008] 3 S.C.R. 3, 2008 SCC 51, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356 C.C.C.; R. v. Dinardo, [2008] 1 S.C.R. 788, 2008 SCC 24, at para. 31.

[47] Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, a trial judge must relate the concept of reasonable doubt to those credibility findings. The defence evidence need not be believed on that vital issue. It is sufficient if, viewed in the context of all the evidence, the conflicting evidence leaves the court in a state of reasonable doubt as to the accused’s guilt, in which case the court must acquit: R. v. B.D., at para. 114.

Position of the Defence

[48] The Defence takes the position that the Crown has failed to meet the burden imposed on it to prove the offences beyond a reasonable doubt. One of the greatest difficulties, from the Defence perspective is that it is impossible to reconcile the evidence of the Accused and P.L.K. with that of the Complainant.

[49] The Accused argues that in performing the W.(D.) analysis, his evidence should be accepted at the first stage of the analysis, and he should be acquitted. The Defence submits that the Accused’s evidence on the more material facts are largely corroborated by P.L.K. The two men differ in their evidence in certain areas, but the Defence submits that these are peripheral areas, and indicates that the two men have not collaborated with respect to their evidence.

[50] If the evidence of the Accused is not accepted outright, the Defence takes the position that there are sufficient inconsistencies and frailties with respect to the evidence of the Complainant to acquit the Accused on the basis of the second and third stage of the test.

[51] Specifically, with respect to the evidence of the Complainant, the Defence takes the position that there were significant weaknesses in her explanations regarding that night, which were not only inconsistent with that of the Accused and P.L.K., but also her own previous evidence. The Defence asks me to reject outright the Complainant’s evidence given the frailties associated with it.

[52] If I am not prepared to reject outright the evidence of each of the Complainant and the Accused, and believe some of what each of them said, then the Defence submits that at the second stage of the analysis I should still be left in a state of reasonable doubt with respect to both charges.

Position of the Crown

[53] The position of the Crown is that it has proven that the Accused sexually assaulted and sexually interfered with his then 13-year old cousin, the Complainant. As the Crown duly noted, there were three different accounts given during the course of the trial as to what took place over the course of the night in question from the time that the Complainant meets up with the Accused until the time that the evening ends. However, the Crown submits that this is not a case where it is impossible to reconcile the truth; when the evidence is carefully considered, it becomes very clear that the Accused sexually assaulted and interfered with the Complainant.

[54] With respect to the evidence of the Accused, the Crown submits that the evidence of the Accused is rife with both internal inconsistencies and implausible absolutes that even conflict with the evidence of his friend and brother-in-law, P.L.K. The Crown submits that I should conclude that the evidence of the Accused is neither credible, nor is it reliable, and it should not be believed. Similarly I should reject the evidence of P.L.K.

[55] With respect to the evidence of the Complainant, the Crown submits that it has significant rings of truth, and was uncontradicted with respect to the core allegations. While there were some inconsistencies in the evidence of the Complainant, they are with respect to peripheral details. These inconsistencies are reasonable given the passage of time, are explained by the Complainant, and more importantly are inconsequential. The Crown pointed out how the Complainant vividly recalled how the assault made her feel during, afterwards and today. The Complainant was consistent in her evidence that the Accused forced his penis into her mouth until he ejaculated, and that she told P.L.K. immediately after. P.L.K. confirmed this. As such, the evidence of the Complainant should be accepted, and when considering it in the totality of the evidence, I should conclude that it proves guilt beyond a reasonable doubt.

Analysis

[56] As the case law principles referred to above confirm, I must approach my analysis with the presumption that the Accused is innocent, and the Crown must establish his guilt beyond a reasonable doubt. I find that the Crown has not met the significant burden placed on it to establish guilt beyond a reasonable doubt. As the case law establishes, “probably” guilty or “likely” guilty is insufficient. For the reasons outlined below, while I do not disbelieve the Complainant that something happened as between the Accused and herself, given the inconsistencies and exaggerations in her evidence on matters pertaining to the assault itself, I simply cannot say with the degree of certainty required for proof beyond a reasonable doubt what happened that night.

Stage 1 of W.(D.) – Do I Believe the Evidence of the Accused?

[57] The first step in the W.(D.) analysis requires me to consider whether or not I believe the evidence of the Accused. If I believe his evidence outright, then he is not guilty. The Crown submits that there are a number of aspects of the testimony of the Accused that are simply unbelievable. I agree.

[58] As the Crown pointed out, the Accused spoke in terms of absolutes such as “never” on various occasions that rendered his evidence unbelievable. In particular:

• When asked if he had any connection to the Complainant prior to the night in question, the Accused acknowledged the family relationship and that he was close to the Complainant’s sisters, but that he “never” spent any time with the Complainant.
• When asked by the Crown how often he would have seen the Complainant in the community prior to this night he also said “never, never seen her around”. Having said this, in his examination-in-chief the Accused testified that he had seen the Complainant walking around the community with her dog. In his cross-examination he acknowledged that the community is relatively small, he acknowledged the familial relationship, and again, having spent considerable time with the Complainant’s sisters.
• The Accused further testified that he “never”, at any time, discussed the allegations with P.L.K. or the Accused’s common law spouse who appeared daily in the body of the courtroom, and who at one pointed needed to be addressed by the Court for whispering answers to questions posed to the Accused. When asked by the Crown whether his spouse had ever discussed the allegations with her brother, the Accused adamantly denied that she had. He indicated that he knew this because he was “always” with her. This is implausible.

[59] With respect to the alleged incident, the evidence of the Accused is simply that it did not happen. While there are aspects to the Accused’s version of events that are capable of belief, there are others that are not. For example, it is plausible that the Accused and P.L.K., may have wanted to play their childhood game of “touch the cross” and that despite the Complainant’s denial, each of the three of them entered the cemetery at some point. It is also plausible that the Accused may have wanted to scare his friend and the Complainant by hiding and not coming out of the cemetery once it was his turn. What strikes me as implausible is that the Accused simply hid for a few minutes, did not try to scare the Complainant when he saw someone he thought may be her, and then got up and left the cemetery without looking to see where his friend and his cousin had gone; he simply got up and walked home when he saw no one at the gates waiting for him. Given the timelines of the Accused and P.L.K. with respect to when they were in the cemetery and at the gates, it also seems implausible that the Accused would not have encountered the Complainant and P.L.K. outside of the cemetery.

[60] All of the foregoing causes me to call into question the credibility of the Accused and his version of the events of the night in question. In short, I do not believe his version of events.

Stage 2 & 3 of W.(D.)

[61] The next stages of the analysis require me to consider:

1. Whether I am left in reasonable doubt by the testimony of the Accused even if I do not believe it; or
2. Even if I am not left in doubt by the evidence of the accused, whether, on the basis of the evidence I do accept, am I convinced beyond a reasonable doubt of the guilt of the accused.

[62] Upon a consideration of the evidence of the Accused and P.L.K., the Defence evidence in of itself has not caused me to have a reasonable doubt. Ultimately, it is the difficulties with the Complainant’s evidence, viewed under the third branch of the analysis that causes me to have reasonable doubt.

Analysis of the Evidence of P.L.K.

[63] The evidence of P.L.K. as to the events of the night differed from both the Accused and the Complainant in many respects, but were similar in others. The Defence submits that I should determine that P.L.K.’s evidence is reliable and credible. The Crown submits that at best, there are significant issues with respect to P.L.K.’s recollection and therefore the reliability of his evidence. At worst, he is outright lying.

[64] I agree with the Crown that there are considerable difficulties with the evidence of P.L.K. His recollection differed considerably from that of the Accused and the Complainant with respect to being with the Accused prior to the walk, where the three individuals met that night, the fact that they smoked marijuana, that he had had a few drinks, and that there was a grass fire.

[65] His recollection was similar to the Accused with respect to not stopping by the side of the road to urinate and playing “touch the cross”. He verified the evidence of the Complainant that she told him what had happened between her and the Accused when he met up with her again after a brief time in which her and the Accused may have been alone inside of the cemetery.

[66] While P.L.K. candidly acknowledged that he was having some difficulty recalling the events of that night, there are simply aspects of his evidence that are unbelievable and call into question his credibility. In particular, it strikes me as particularly unbelievable that he would not have told his good friend, and common law partner of his sister about the Complainant’s allegations particularly when it is P.L.K.’s evidence (denied by the Accused) that he saw the Accused the following day. Even if P.L.K. did not want to tell others because he disbelieved the Complainant or thought perhaps the interaction was consensual, it is beyond belief that he would not have told the Accused about an allegation so serious.

[67] Similarly, P.L.K.’s evidence that he left the cemetery area while the Accused and the Complainant were inside alone but returned minutes later because he felt “weird” and was concerned about animals being in the area, simply does not have an air of reality to it. Combined with his refusal to acknowledge that the three individuals were smoking marijuana and that he may have been drinking a small amount on the night of the alleged event, leads me to question not only the reliability of his recollection but also his credibility.

Analysis of the Complainant’s Evidence

[68] While I acknowledge the Crown’s argument that the Complainant has consistently alleged the core fact that the Accused forced her to give him fellatio, and that P.L.K. confirmed she immediately told him about it following the alleged assault, the discrepancies between the evidence of the Complainant in her examination-in-chief, cross-examination, at the preliminary hearing, and in her video and written statements on other important facts do impact my confidence in the reliability of her recollection, as well as her credibility. As indicated above, this does not mean that I disbelieve the Complainant, but given the frailties in her evidence with respect to a number of those facts, I simply cannot say that the Crown has proven the allegations beyond a reasonable doubt.

[69] The Crown and the Defence concur that in accordance with R. v. M.A, in assessing the credibility and reliability of the Complainant, the assessment must be done as an adult. She was an adult when she testified at the preliminary inquiry and at trial. I agree and have approached my assessment on this basis.

[70] On certain peripheral matters, dates, times and the like, the Crown and Defence agree that I may look at the Complainant’s evidence from the perspective of a child. I therefore did not base my findings with respect to reliability and credibility on matters such as the Complainant’s inability to accurately recall the year of the events in question or her age.

[71] I also did not base my findings on P.L.K.’s evidence as to his concerns with respect to the Complainant not fighting back during the alleged attack or her demeanour following. Nor did I base it on the Defence suggestion that the Complainant’s quiet conversation with the Accused following the alleged event is unbelievable for someone who has just experienced a sexual assault, and is therefore indication of her lack of credibility.

[72] Whether or not the Complainant tried to fight off the Accused, whether or not she had the physical strength to do so given her size relative to the Accused at the time, whether or not she yelled out, and whether she appeared calm following the event are irrelevant to my analysis. It would be an error for me to presume that the Complainant should have acted in a particular manner when confronted with an act of sexual violence.

[73] The Defence further submits that I should take note of the noticeable difference between the Complainant’s method of testifying when the Crown was asking her questions versus Defence counsel. Counsel points to numerous pauses and requests to repeat questions a number of times, none of which happened during the Crown’s examination-in-chief. While I agree that there was a noticeable difference, it has not impacted my assessment of the credibility or reliability of the Complainant’s evidence. The Complainant was faced with a respectful, but difficult cross-examination. It is understandable that she would want to either pause before answering, or have the question repeated to ensure she understood what was being asked of her.

[74] In general terms, what has impacted my assessment of the reliability of the Complainant’s recollection of the events of the night in question, as well as her credibility is the totality of inconsistencies on important facts pertaining to the assault itself, and immediately following. While it may be possible to explain each inconsistency in isolation, and indeed the Complainant endeavoured to do so, ultimately they did cause me to have doubt. Furthermore, the Complainant’s exaggeration of some important facts also caused me concern such that, viewing the evidence in its totality, I am left in a state of doubt as to the guilt of the Accused.

[75] I do not intend to review each of the inconsistencies and difficulties with the evidence of the Complainant as alleged by the Defence. The more significant ones, and my findings with respect to them are as follows:

a) The Defence argues that the Complainant’s version of events is implausible from the start. The Complainant states that she went out without the permission of her grandmother, at 11:00 p.m., to find her mother. She did not say why she was searching for her mother only that she wanted to find her. Despite this, she stops to visit with the Accused and P.L.K. to smoke marijuana and does not ultimately go searching for her mother.

I do not find this implausible. It is entirely possible that given the passage of time the Complainant may not recall why she wanted to go looking for her mother, or alternatively, that she has personal reasons for not wanting to say why. It is also plausible that she became side-tracked by encountering her cousin that evening. Regardless, her evidence was that she did start walking after smoking the joint with the intention of continuing to look for her mother. Furthermore, had she suffered a sexual assault, it is more than understandable that she would have wanted to return home as quickly as possible without continuing her walk around the community.

b) The Defence argues that the Complainant’s evidence with respect to the Accused and P.L.K. stopping at the side of the road to urinate is inconsistent. In examination-in-chief she testified that both men stopped. In cross-examination the Complainant talked about the Accused stopping while P.L.K. walked with her. When cross-examined on this inconsistency, and that at the preliminary hearing she testified it was only the Accused who stopped, she indicated that the Accused stopped first, followed by P.L.K. approximately four or five meters later. When pushed further as to why, at the preliminary hearing she did not refer to P.L.K. also stopping, the Complainant indicated that it must have slipped her mind. The Defence argues that this is an important fact.

I find that this evidence relates to a peripheral issue and does not affect the overall credibility or reliability of the Complainant’s evidence.

c) The Defence submits that the allegation that the Accused pushed the Complainant while walking next to P.L.K. is not credible. She would have still been plainly visible from anyone on Back Street where the incident is alleged to have occurred, even though it was night. P.L.K., who was standing next to the Accused would have seen it, and he testified that he did not see a push.

Again, this fact does not cause me concern with respect to the plausibility of the Complainant’s account of events or the credibility of the Complainant’s evidence. Simply because the actions of an accused committing a sexual assault may be risky does not mean that a reasonable doubt should be found as to whether or not the assault occurred. With respect to P.L.K., while he denied having seen the push, he did acknowledge having been told about an alleged sexual assault against a 13 year old girl by a 24 year old, and yet did nothing. The Complainant’s evidence that he must have seen the push and yet did nothing, is therefore quite plausible.

d) The Complainant’s evidence as to how the push happened was inconsistent with previous statements. Her evidence was inconsistent as to whether she was pushed from the back or the side, but she did consistently state that she was pushed with two hands. It is reasonable that someone who suffered a sudden and violent push would not recall the mechanics, but simply that they were pushed. This inconsistency did not affect my assessment of the reliability of the Complainant’s evidence or her credibility.

e) What is particularly concerning though is the inconsistency in the Complainant’s evidence with respect to P.L.K. walking away following the push. In her examination-in-chief the Complainant testified quite clearly that when she was pushed, and fell to the ground, she could not see P.L.K. When asked by the Crown if she could see where P.L.K. was at this point, the Complainant testified “No”. When asked how was it that she knew P.L.K. was walking ahead, the Complainant’s evidence was “Because while I was getting up, I didn’t see him”.

In cross-examination the Complainant gave a very different and vivid account of being on the ground following the push and seeing P.L.K. walking away until he turned down a different street. The Complainant then testified that it was as she was trying to get up off the ground she looked to see P.L.K., where he was, and saw him just continue to walk but not look back. She made it very clear that in the moments following the push, and before she saw the Accused’s exposed penis that her focus was very clearly on watching P.L.K. and him walking away.

The Complainant was unable to offer a satisfactory explanation for the inconsistency. When pushed on the issue by Defence Counsel, she subsequently denied that she saw P.L.K. while on the ground, and indicated that she only saw him walking away while trying to get up. She remained steadfast that watching P.L.K. walk away was her focus in those moments. This remained in direct conflict with the evidence in her examination-in-chief that she did not see P.L.K. at all while she was getting up, and she therefore assumed he had walked away.

This is a troubling inconsistency and one that I am unable to reconcile. From the Complainant’s evidence in her cross-examination she gave the impression that watching P.L.K. walk away down the street after she was pushed, and in the moments before fellatio was forced upon her, was impactful. It was a striking and compelling image of this young woman, watching the person who could stop the impending assault simply walk away from her, and then turning to see the Accused’s penis being forced into her mouth. While I can appreciate that the Complainant may have been overwhelmed, anxious and nervous in giving her evidence, this is a material fact that she was significantly mistaken about in her examination-in-chief.

f) Also concerning are differences in the evidence of the Complainant as to what the Accused did with his hands over the course of the act itself, and whether she was being choked. In her examination-in-chief the Complainant testified that the Accused had his left hand on the back of her head. She further testified she was being choked by his penis, which was being forced into her mouth.

In cross-examination the Complainant testified that once the Accused was finished, he “…helped me up, choked me, helped me up.” She denied that the Accused ever had his hands around her throat during the alleged incident. She explained that the Accused had his hands around her throat, choking her until she stood up after fellatio was forced upon her. When asked why she did not mention this in her examination-in-chief, the Complainant stated that “I didn’t want to remember that.”

The statement made to police by the Complainant in her video interview with respect to being choked was also put to the Complainant. In her video interview the Complainant indicated that during the alleged assault she was trying to push the Accused away and he choked her with his hands. This is contrary to her evidence at trial that the Accused did not have his hands around her throat during the alleged incident, only after when he forced her up. The Complainant explained that she was being choked by his penis in her mouth and she did not feel comfortable telling a male police officer she was being choked by a penis. She was approximately 15 years old when she gave this statement, and her explanation in this regard is understandable, but it does not explain the balance of her inconsistencies with respect to being choked immediately following fellatio.

When put to the Complainant by Defence Counsel that the Accused never choked her with his hands, she testified adamantly that “Yes he did”. When pushed on the issue, the Complainant testified that she did not recall whether she was choked at all (other than with the Accused’s penis). The fact that the Complainant did not mention being choked while getting up in her examination-in-chief, said quite adamantly that the Accused choked her with his hands in cross-examination, and then acknowledged that she does not recall whether or not it happened, is concerning. At best these inconsistencies call into question the reliability of the Complainant’s evidence, and at worst, represent an exaggeration of the facts that leads to questions as to credibility.

g) The different versions offered by the Complainant as to what the Accused said at the conclusion of the incident are also concerning. In her examination-in-chief the Complainant testified that the Accused thanked her, said goodnight, and then told her ‘if she told the police he would kill her’. In her cross-examination she acknowledged her prior inconsistent statement in which she indicated that the Accused told her that ‘if she called the police he would do it again’. The Complainant acknowledged that this prior statement given to police, and then repeated at the preliminary inquiry was the accurate statement. The Complainant explained that in her mind the two are the same; that the Accused did kill her that night when he assaulted her.

I do not question the Complainant’s feelings in this regard. However, the fact remains that she was asked what the Accused said, and her response appears to be an exaggeration of the truth.

Conclusion

[76] The foregoing calls into question the reliability of the Complainant’s recollection of certain events, and demonstrates a carelessness with the facts, which may be unintentional, but nonetheless casts some doubt on her credibility.

[77] As I indicated earlier in my decision, this should not be taken to mean that I do not believe that something happened to this young woman at the hands of the Accused. That is not the case. However, given the inconsistencies in the evidence I cannot be sure about what it was that happened on the night that the Accused, the Complainant and P.L.K. met and went for a walk, and that leaves me in a state of reasonable doubt. I therefore cannot make a finding of guilt and must acquit the Accused of both charges on the indictment.

“Original signed by” The Honourable Madam Justice T.J. Nieckarz

Released: June 21, 2019