Publication Ban Warning

W A R N I N G

This court directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2) or (3) or 486.5(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of:

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988: or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (I)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1) (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

COURT FILE NO.: CR-17-40000777-0000 DATE: 20190729

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – JONATHAN GARRETT

Counsel: Brett Cohen, for the Crown Melina Macchia, for the Defendant

HEARD: June 17-20, 2019

ORDER FOR PUBLICATION BAN PURSUANT TO s. 486.4 ON THE IDENTITY OF THE COMPLAINANT

REASONS FOR JUDGMENT

HIMEL J.

[1] Jonathan Garrett is charged with one count of sexual assault contrary to s. 271 of the Criminal Code. Mr. Garrett elected to be tried by a judge sitting alone without a jury. The following are my reasons for judgment.

Factual Background

[2] Mr. Garrett was charged that, between the dates of May 1, 2016 and August 23, 2016, the defendant committed a sexual assault on the victim L.N. contrary to s. 271 of the Criminal Code. Following a preliminary hearing, he was committed to stand trial on the evidence of the complainant regarding two incidents of sexual assault alleged to have occurred in August 2016.

[3] Jonathan Garrett is 43 years old and was born in Bathurst, New Brunswick. He left home after completing high school and moved first to Alberta where he worked for ten years and then to British Columbia where he worked for ten years. In April 2014, he moved to Toronto to be closer to family. His twin brother had arranged a job for him in the steel industry and he has worked at Venture Steel since April 2014. His work involves long shifts and he sometimes works seven days each week. In May 2014, through his brother’s girlfriend, he met the complainant, L.N. They became friends and saw each other socially.

[4] L.N. gave her testimony with the assistance of a Vietnamese interpreter. She testified that she met Mr. Garrett through her friend who was dating Mr. Garrett’s brother Jason. They saw each other at different events for a number of months. In November 2015, he moved into her residence at 66 Ruthmar Crescent, Toronto and was living there with her and her 11-year-old son J.T. She said that when he moved in, they slept in the same room and they were very happy. She took care of rent and expenses and he would pay her $1,000 from his earnings. He would leave for work at 1:00 p.m. and she would cook for him for when he returned home. However, the relationship began to deteriorate and in June 2016, they ended it.

[5] L.N. says she broke off the relationship because after a few months, she found out that Mr. Garrett was very jealous, he drank a lot and lost control. She said he liked to smoke marijuana and took something that “made him crazy”. She described that his eyes were red, he hit the walls of the house and slammed glasses onto the floor; he looked very angry and “was not normal.” In April 2016, they had an argument and he hit her. She testified that he hit her on ten separate occasions. She would tell him not to do that and he would promise to change his behavior. She also said that on one occasion, he put a big pillow on top of her face. When he did not stop hitting her, she broke up with him and told him to move to the bedroom next door and to pay $600 per month rent. She testified that she drove him to over ten places to look for a room to rent but he did not like any rooms as they were too dirty. Then she said that she agreed to let him stay in the house and pay rent.

[6] L.N. said that after she broke up with Mr. Garrett, she was so afraid of him that she would leave the house and go to a friend’s house to avoid him. When she was at home, she would go to her bedroom and hide there. She testified that for a few months, once or twice a week, he would come home from work, drink alcohol and beer, go to her room, hit her in the face until it was swollen, pin her arms down and rape her.

[7] L.N. told the court on a few occasions during the trial that she did not want to be at court. She said that she had told her story at the police station and at the preliminary hearing and did not want to testify. She said she was “very hurt and miserable” and wanted to forget. It was clear that she was a very reluctant witness.

[8] L.N. testified that on August 23 or 24, 2016, she was in her bedroom when she heard Mr. Garrett arrive at home at 1:00 a.m. She said that he would take a shower but doesn’t know if he did on this date. He had been drinking alcohol and beer and he wanted to hug and kiss her. He got angry. When asked how she knew he had been drinking, she said that he smelled of marijuana. She said that she had already hid in her room and she could hear him go into the bathroom, he ate and drank and went upstairs. Then he smashed the door down of her bedroom. She said he had broken it down a few months earlier and she had asked him to repair it. She was unable to lock it. She said that Mr. Garrett pinned her arms down, pulled up her sleeping wear, pulled down his pants and put his penis in her vagina. She was asked if she consented to sexual relations and she said “No, if I move he’d hit me again.” She said that she begged him not to hit her anymore. She said that Mr. Garrett cleaned himself up and went to his room to sleep.

[9] L.N. also testified that a few days earlier, she was at a Vietnamese gathering and he asked to go along. She had said no. She returned to the house at 12:00 a.m., took her son to the basement to sleep and saw that Mr. Garrett’s lights were on. She saw that he had brought a woman home with him and he gave her $20 to take a taxi. L.N. went to her room to go to bed and he came in and argued with her about coming home late. His brother, who was living with them at the time and heard the argument, cursed him for being noisy and went back to his room to sleep. She said that Mr. Garrett pushed her down on the bed, hit her and then made love to her. She said she struggled but the more she resisted, the more he hurt her. After he ejaculated, he went to sleep. Then at 7:00 or 8:00 a.m., he went back to his room.

[10] After giving that testimony, L.N. refreshed her memory from the statement she had given to police, then testified that she had been assaulted on August 20, 2016 but that the incident with the other woman occurred on a different night.

[11] The complainant’s son J.T. testified that he is now 14 years old and that he was 11 years old at the time. He had provided the police with a statement which he reviewed and adopted at trial. He said that Mr. Garrett was his mother’s boyfriend and that on the morning of August 27, Mr. Garrett came home saying bad things about his mother, and pushed her onto the couch. J.T. called 911. He said that Mr. Garrett pushed him out of the way, took the telephone and threw it to the ground breaking it. He said that Mr. Garrett’s brother was also there. J.T. was cross-examined about whether he saw his mother with a swollen lip and bruises prior to this incident. He said that he did and that she told him that she slammed into the doorframe. He also testified that he knew Mr. Garrett for one and a half to two years and that Mr. Garrett took him swimming. He recalled that sometimes he went out with Mr. Garrett on his own.

[12] Mr. Garrett gave evidence on his own behalf. He testified that he had begun going out with L.N. after he met her at his brother’s girlfriend’s house. The couple went swimming with L.N.’s son and would go to the mall. He did some chores around her house. He said that L.N. was not working but said she had owned a nail salon which she had sold for $80,000. He testified that L.N. proposed that he live at the house and that they have a financial arrangement where he would give her his pay cheques or what he could afford. He agreed to this and said they were boyfriend and girlfriend and that he was supporting the family. He felt very close to the complainant’s son. Mr. Garrett’s brother Jason moved in as well in March 2016 and paid rent. They worked together, and Jason would drive him to work on the weekends. On weekdays, Mr. Garrett rode a bicycle to work which took approximately one hour. Mr. Garrett kept his things in a spare bedroom but slept in the complainant’s room with her. His brother slept in a bedroom upstairs as well. He said that the complainant communicated with him in English and that she cooked for him while he lived in the house.

[13] Mr. Garrett testified that he broke up with L.N. in June 2016 when he discovered drugs in the house. He found a garbage bag with a white substance and confronted her with this. He said this was not the first time he saw drugs in the house. He wanted to move out and the complainant placed an advertisement and helped him look for a room. He testified that he found a room in a house owned by a couple and arranged to move in. He gave them the first and last months’ rent of $1,350. He left for vacation in New Brunswick and said he would move upon his return. Then he went to New Brunswick with his brother and his girlfriend, her son and J.T. He said that he did not want L.N. to come with them and she never expressed any concern for her son’s safety. He took care of him and they returned a week or so later. When he got home, he learned that he could not move into the room with the couple as L.N. said they did not want anyone who smoked. He never tried to retrieve his deposit. He could not find another place in his price range and L.N. agreed that he could stay and pay rent. During July and August, he did not have much contact with the complainant. She continued to prepare food for him. He said that both he and L.N. consumed a great deal of alcohol.

[14] On August 27, 2016, at approximately 9:30 a.m., Mr. Garrett returned home from work. He had been up drinking all night and did not sleep. He had been trying to quit smoking and was taking medication to help him stop smoking. When he arrived at work, his supervisor smelled alcohol on his breath and had asked him and the others on his shift to go home.

[15] When he got home, Mr. Garrett was very upset and began to cry. He was met by the complainant who walked him to his bedroom and tried to console him. Then he came back downstairs where the complainant and her son were sitting. He began to yell at L.N. and they were arguing. He slapped her several times on the side of the head while she was sitting on the couch and pushed her by the neck with his hand onto the couch. Her son J.T. was trying to stop him from grabbing his mother. Mr. Garrett’s brother came downstairs and told J.T. to call the police. While J.T. was calling the police, Mr. Garrett came back downstairs, pushed J.T. and grabbed the telephone throwing it to the floor and breaking it. Mr. Garrett then went back upstairs.

[16] He testified: “I let everyone down at work. I wasn’t myself”. He said, “I was kind of having a nervous breakdown”. He said that he was stressed about work and he was doing drugs and drinking alcohol. Mr. Garrett denied that he was abusive with the complainant on other occasions and testified that he never forced her to have sex with him. With regard to the assault, he said that he feels “discouraged, sad and disappointed about what happened” and knows it is wrong to touch someone. He recalls pushing the complainant and throwing the telephone but does not remember very much about what he did.

[17] The complainant and J.T. fled to a neighbour’s house and called police again. The complainant attended at the hospital for examination and then at the police station. When the complainant provided a statement to police, she disclosed that Mr. Garrett had sexually assaulted her on two separate occasions that preceding week. Mr. Garrett was then charged with assault, mischief to property and sexual assault. In addition to the damage to the cell phone, the mischief to property also involved damage to several pictures, doors, a make-up table and other household items.

[18] On the morning of the trial, Mr. Garrett entered a guilty plea to a charge of assault and to two counts of willful damage to property. The trial has proceeded on the sexual assault charge alone.

[19] Mr. Garrett disputes the complainant’s version of events and asserts that any sexual relationship they had was consensual. He does not deny that sexual encounters occurred and does not argue that he held an honest but mistaken belief in consent. He says that the complainant consented to the sexual acts in question. Mr. Garrett testified that on the night when he brought the woman home, he had been drinking at a few bars, came home and took the woman to his room. Then he sat with the woman and with L.N. talking, drank one beer and thought that it was uncomfortable for L.N. He called a taxi for the woman. He said that L.N. took his arm to go to her bedroom and that they made love. He denies hitting her or forcing her to have sex with him. He went back to his room to sleep as he had to work the next day.

[20] With reference to the incident alleged to have occurred before he was arrested for assault, Mr. Garrett testified that he got home from work and was taking a shower when L.N. came in to talk to him. When he was done, he went to her bedroom and they spoke. She said she could not afford to take care of the house and wanted to downsize to a two-bedroom basement apartment. In his mind, they were perhaps getting back together. He said that they had consensual sexual intercourse that night. Then he went to his room to sleep but did not sleep much. This was the day before the incident. He denied hitting her or forcing sex upon her on this or any other occasion.

Positions of the Parties

Position of the Defence

[21] Counsel for the defence submits that I must apply the analysis in R. v. W.(D.) when considering the credibility of the witnesses and in determining whether the Crown has proved the charge beyond a reasonable doubt. Ms. Macchia argues that in light of the manner in which the complainant provided her evidence, she cannot be trusted and that there are serious credibility and reliability issues with her testimony. Counsel points to instances where she says that the complainant was not truthful, for example, when she was asked if she ever worked in Canada and said she was on government support. Both Mr. Garrett and her son testified that she had jobs as a waiter, a poker dealer and that she owned a nail salon at one time. Ms. Macchia said that the complainant could not recall the length of her relationship with Mr. Garrett and when it began. Her testimony was contradicted by Mr. Garrett and her son who said they were in a relationship for two years. The complainant denied that she and Mr. Garrett went out in public before he moved in and then agreed that they went swimming with her son and that they went out for sushi.

[22] Counsel also pointed out that the complainant was asked about her use of drugs and alcohol and said she did not use drugs and did not have a problem with alcohol. Even her son said she had a problem with alcohol. Counsel questions why L.N. was not being truthful.

[23] As for the complainant’s description of the incident on August 27, 2016, there is some discrepancy between what the complainant said and what her son observed. She described Mr. Garrett holding her neck with two hands and choking her and that is not what her son said he observed. Neither is it what she described at the preliminary hearing where she said Mr. Garrett was tapping her head and her son’s head, which her son denies.

[24] Furthermore, in describing the alleged sexual assaults, the statements of the complainant and the evidence at the preliminary hearing described an incident that was alleged to have happened on August 20, 2016. At trial, she changed her evidence about when the alleged assaults occurred. Not only was the date an issue, but she described an event where Mr. Garrett brought a woman home and then paid her cab fare to leave. However, this was never mentioned to police in her statement or at the preliminary hearing. Another detail described at trial was that Mr. Garrett drank her bottle of Hennessey given by a friend and then sexually assaulted her. Again, that was not mentioned to police or at the preliminary hearing.

[25] Counsel submits that the complainant changed her description of what happened on August 20, 2016 and that her evidence cannot be relied upon. Ms. Macchia asks the court to find that the complainant could not keep the dates and other details straight because the events did not happen. Counsel argues that it defies common sense for the complainant to say that she was fearful of Mr. Garrett, yet she allowed her son to go to New Brunswick with him on holiday.

[26] Ms. Macchia argues that Mr. Garrett’s description of events was clear, concise and detailed about how he and the complainant met, how long they knew each other and his relationship with her son. He admitted that he was drinking alcohol excessively and using drugs but was able to describe events in the weeks prior to August 27, 2016. He explained the reason why he broke up with the complainant (because of the drugs he found in the house) how he wanted to move out of the house and his efforts to move out. He testified that the complainant thwarted his efforts in order to have him stay in her place when he returned from holiday in New Brunswick. Mr. Garrett gave evidence about having consensual sexual intercourse with the complainant in the week prior to the events of August 27. He was not sure whether the discussion she had with him about downsizing meant she wanted to resume the relationship with him.

[27] Mr. Garrett described how he felt on August 27, 2016 when he believes he had a nervous breakdown from the stress of working overtime, drinking too much and taking a drug to stop smoking. He believes all this led to the assault and to damaging the cell phone.

[28] In summary, defence counsel submits that Mr. Garrett’s evidence was detailed and credible. She asks the court to find that there are serious problems with the Crown’s case and that it has failed to prove beyond a reasonable doubt that any sexual assault happened.

Position of the Crown

[29] Crown counsel points out to the court that it is obvious that the complainant did not want to be at court, that she has moved on and even wanted Mr. Garrett to get on with his life. She expressed frustration with the trial process and that she had to give a statement to police, give evidence at the preliminary hearing and then at trial. Her evidence was given reluctantly.

[30] Mr. Cohen submitted that when Mr. Garrett moved into the house, the complainant was very happy. However, after a few months, there was violence and abuse so she broke up with Mr. Garrett but he would not leave. She tried to find him a place to stay but he turned places down because they were dirty. This was corroborated in Mr. Garrett’s evidence. L.N. accepted money for room and board, did her best to avoid Mr. Garrett by staying away from the house and hiding from him. Her son observed that his mother had a swollen lip and bruises. The Crown submits that the veracity of the complainant’s evidence was supported by the fact that Mr. Garrett pleaded guilty to assault and mischief. Crown counsel submits that Mr. Garrett’s use of alcohol induced violence and rage which was exhibited with assaultive behavior even with an eleven-year-old boy. That L.N. allowed her son to go to New Brunswick was only because he would be with Mr. Garrett’s brother’s girlfriend and her son.

[31] As for the sexual assault, Crown counsel submits that it occurred three or four days before August 27 when Mr. Garrett came home at 1:00 a.m., took a shower, came into the complainant’s room where the lock on the door was broken because Mr. Garret broke the door down on an earlier occasion, he smelled of marijuana and alcohol, pinned her down and forcefully put his penis in her vagina. When he was done, he returned to his room. The other assault was on August 20, 2016. Crown counsel says that the complainant was reluctant to talk about it and said it always started the same way where he drank and tormented her and then raped her. During her evidence the complainant had to refresh her memory but was prompted with a reference to a Vietnamese gathering that she attended that night. She had taken her son, came home at midnight, put her son to sleep, and went upstairs. Mr. Garrett came out of his room, banged on her door to ask why she did not take him along, pinned her on the bed, hit her, and ejaculated while she lay there fearful. Then he got up at 7:00 or 8:00 a.m. and went to his room.

[32] The Crown asks the court to consider that these events occurred almost three years ago, and that while there was confusion about dates, the initial description was the same, that he had sexually assaulted her. Mr. Cohen submits that the incident with another woman coming to the house happened a few weeks earlier. With reference to the fact that L.N. did not mention that Mr. Garrett attempted oral and anal sex with her nor did she tell police that or testify about it at the preliminary hearing, and that she testified at trial that vaginal penetration was the extent of the sexual activity, the Crown argues that the complainant is reluctant to discuss this in court.

[33] With respect to Mr. Garrett’s evidence, Crown counsel points out that he agrees that they had sex during the week of August 20 but says it was consensual. Counsel argues that the circumstances provide an unlikely context for that given that Mr. Garrett says that they had broken up and that he was sleeping in his own room. Furthermore, his evidence that he broke up with the complainant because of drug dealing and his disdain for that does not make sense given his own use of drugs such as cocaine and marijuana on a regular basis. He says that he wanted to move out and found a place and gave first and last months’ rent but could not remember where it was and did not take steps to claim what he had paid. Instead, he continued to live with the complainant and prior to the incident on August 27, he did not seem to be taking steps to leave.

[34] When he was questioned about the incident on August 20, 2016 where Mr. Garrett said he brought a woman home and that the complainant seduced him, and they made love, he said he thought this could be the start of something new. He said that on August 26, she did it again when he arrived home from work, took a shower and she came in to speak to him and they discussed downsizing because she could not afford the place she was renting. Again, Mr. Garrett said he thought they may be getting back together. However, in cross-examination he agreed there was no conversation about getting back together.

[35] With reference to the events on August 27, Crown counsel notes that Mr. Garrett testified that he drank six to eight beers, took medication to stop smoking, did not sleep and was sent home from work. He says he was under emotional stress because of the relationship and cannot remember why he argued with the complainant but that he says that this was the first time he put his hands on her and that this was an isolated incident. The Crown asks the court to find this not to be credible.

[36] Crown counsel argues that the inconsistences pointed out by the defence in the complainant’s evidence relate to collateral or peripheral matters such as whether she remembers going for sushi with Mr. Garrett and her son. That she changed her evidence about the details on August 20, is not problematic as she refreshed her memory and returned to court and testified about what happened.

[37] In summary, the Crown asks the court to find the complainant’s evidence credible and that the Crown has proven the offence of sexual assault beyond a reasonable doubt.

Analysis

[38] In considering whether the Crown has met its onus, I apply the following principles. First, Mr. Garrett is presumed to be innocent unless the Crown has proven his guilt beyond a reasonable doubt. The burden rests upon the Crown throughout. A reasonable doubt is not a far-fetched or frivolous doubt. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or the lack of evidence. It is not enough to believe that Mr. Garrett is probably or likely guilty. That is not guilt beyond a reasonable doubt. If I am sure that Mr. Garrett committed the offence, then I am to find him guilty. If at the end of the case, based on all of the evidence or the lack of evidence, I am not sure that he committed the offence, then I am to find him not guilty.

[39] In that Mr. Garrett elected to call evidence and testified at trial, I must apply the principles enunciated in the case of R. v. W.(D.), [1991] 1 S.C.R. 742: that if I believe the evidence of Mr. Garrett, I must acquit; if I do not believe the evidence of Mr. Garrett but I am left in a reasonable doubt by it, I must acquit; and if I do not believe and am not left in a reasonable doubt by the evidence of Mr. Garrett, I must consider whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt of the guilt of Mr. Garrett.

[40] There is no onus upon Mr. Garrett to prove anything. The onus rests upon the Crown throughout to prove the offence beyond a reasonable doubt. The court is not to weigh and compare conflicting versions of the events. The court is to assess the reliability and the credibility of the evidence of the complainant and to assess all the evidence and determine whether the Crown has met its burden.

[41] I now turn to the elements of the offence charged. In order to find Mr. Garrett guilty of the offence of sexual assault contrary to s. 271 of the Criminal Code, I must be satisfied beyond a reasonable doubt of each of the essential elements of the offence, namely:

1. that Mr. Garrett intentionally applied force to the complainant;
2. that the complainant did not consent to the force that Mr. Garrett intentionally applied;
3. that Mr. Garrett knew that the complainant did not consent to the force that Mr. Garrett intentionally applied;
4. that the force that Mr. Garrett intentionally applied took place in circumstances of a sexual nature.

[42] Consent, as defined in s. 273.1(1) of the Criminal Code, means that there was a voluntary and informed agreement of the complainant to engage in the sexual activity in question. As explained in R. v. Ewanchuk, consent or lack of it exists in the mind of the person being touched at the time it occurred: see para. 26. Amendments to the Criminal Code set out in Bill C-51 address situations where the complainant is unconscious, so intoxicated or there are other reasons affecting the complainant’s capacity to consent. Section 273.1(2) states that there is no consent obtained where the complainant is unconscious (para. (a.1)) or the complainant is incapable of consenting to the activity for any reason other than the one in para. (a.1). Consent cannot be implied; there is no defence of implied consent to sexual assault in Canada: see Ewanchuk, at para. 34.

[43] In the case at bar, there is no issue of honest but mistaken belief in consent or lack of capacity to consent. The issues that are relevant are (1) whether the Crown has proven the actus reus, that is, that there was a touching, in circumstances of a sexual nature, and the lack of the consent of the complainant and (2) the mens rea, that there was an intention to touch and knowing or being reckless of or willfully blind to, a lack of consent on the part of the person being touched.

Decision

[44] I must decide whether I am satisfied beyond a reasonable doubt that the acts alleged by the complainant took place and that the elements of the offence of sexual assault are made out by the Crown. In deciding whether the Crown has proven the elements of this offence, I consider all the circumstances, the nature of the contact between the parties, their words and gestures, and their conduct together. This case involves an assessment of the credibility of the witnesses. Where evidence for the Crown is dependent on the testimony of the complainant, it is essential that it be tested in light of all the evidence presented. This means that discrepancies are to be noted and inconsistencies addressed, and that issues raised by the defence at trial (including submissions with respect to motive for fabrication) must be assessed in light of all the evidence: R. v. C.(J.) (2000), 131 O.A.C. 230, 145 C.C.C. (3d) 197 (Ont. C.A.).

[45] In applying the “common sense” approach to the evidence of witnesses, I am required to note and apply a distinction between the credibility of a witness and his/her reliability: see R. v. Morrissey (1995), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (Ont. C.A.), at 205-6. In considering the demeanour of witnesses, I look at their responses to questions asked, their explanations when confronted with alternative scenarios, their willingness to consider suggestions that are contrary to their interest, and any evidence of bias or motive to fabricate. I look at the witness’ memory of the events, ability to recall, the precision of their evidence, and their opportunity to observe. I must also note that findings of credibility may not be made on the basis of demeanour alone: R. v. L.(R.G.) (2004), 185 C.C.C. (3d) 55, 186 O.A.C. 355 (C.A.).

[46] As for the issue of motive, the absence of a motive to fabricate does not prove that a witness is telling the truth. The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility: see R. v. Batte (2000), 34 C.R. (5th) 263, 145 C.C.C. (3d) 498 (Ont. C.A.).

[47] I have considered the evidence called by the Crown including the evidence of the complainant and her son as well as the evidence called by the defence along with the admissions made by counsel. In reviewing the evidence called at this trial, overall, I find that the complainant’s evidence was given in a very reluctant manner. During the trial, she did not want to repeat what she had told police or what she testified at the preliminary hearing. At one point, she had to attend at the Victim-Witness office to refresh her memory by watching a videotape of her statement given to police. It is understandable that a complainant would be impatient or upset with having to describe the incidents that led to a criminal charge to the police, again at the preliminary hearing and finally at trial. However, I must still assess whether her evidence is credible and reliable and whether the Crown has met its burden.

[48] The complainant was somewhat argumentative about small details such as when she met Mr. Garrett and where they met. For example, she wasn’t sure if it was during the summer of 2014 or 2015 and she said that they did not go out together for a period of time after they met. Instead she said that she saw him at her friend’s house and then he moved in to her house, perhaps some time in November 2015. She said that she knew him for a year and a half before he moved in. She denied that he regularly came over, that he helped her do things around the house or that he had a relationship with her son during that period of time. She said that she did not consider Mr. Garrett to be her boyfriend but then said they had a romantic relationship. In her evidence, she clearly attempted to minimize their relationship.

[49] When asked if she allowed him to take her son J.T. out with him, L.N. said she did not want to let Mr. Garrett take him to go swimming without her. In cross-examination, she agreed that out of twenty times that they went swimming, she went only four times with them. L.N. was also inconsistent about more important details. For example, she agreed that she told a nurse at the hospital that Mr. Garrett tried to penetrate her anal region with his finger, his mouth and his tongue and that he tried to penetrate her vagina with his mouth and tongue. She also told the nurse that he tried to penetrate her mouth with his penis. However, when she gave a statement to police, she did not mention these details, nor did she testify about them at trial. Her explanation in cross-examination was that she did not want to tell “that dirty story” to anyone. While she did not deny at trial that Mr. Garrett attempted to force anal sex on her, the fact that she did not testify about these details at trial, or at the preliminary hearing and that she did not tell police about them in her statement is a very significant inconsistency.

[50] The complainant gave evidence that the relationship with Mr. Garrett started going downhill in May 2016 and that after that time, he would come into her room and force intercourse upon her at least once or twice a week. She said that was the extent of the sexual activity. The details that she provided to a nurse were never mentioned. When she was asked why she did not say anything about Mr. Garrett trying to penetrate her in the anal region at the preliminary hearing, she said she was scared. She also said that she did not tell the police officers all the details just that Mr. Garrett hit her and then made love to her. When she told the nurse at the hospital on August 26, 2016 at 2:00 a.m. that she had been sexually assaulted, she said she could not remember when it happened as she was so scared. She said that it happened ten or fifteen times before.

[51] When she was asked by the nurse “how long has the relationship been violent?”, she said eight months. At trial, she said it was four months and that the answer written down by the nurse was wrong. It was put to the witness in cross-examination that she had been in Canada for 18 years and had to learn English. She had taken English as a Second Language courses. She agreed that she communicated in English with Mr. Garrett but said she spoke very few words. At trial she was asked if police had ever been involved before and she said “no”. However, in the information given to the nurse, she said “yes”. She said at trial that she did not call police when he mistreated her because “he threatened to kill me and my child”.

[52] She repeated that “he was like a crazy man, smoking marijuana and drinking and became angry and violent.” With reference to the charge, she said that Mr. Garrett pushed her down and penetrated her vagina with his penis. The complainant maintained that Mr. Garrett did it many times before.

[53] When the complainant testified at trial she said that during the incident on August 27, 2016, Mr. Garrett choked her, that he lunged forward and pushed her down on the sofa. At the preliminary hearing, she said that “he tapped her forehead”.

[54] The charge that Mr. Garrett faces alleges sexual assault that occurred between May 2016 and August 2016. The preliminary hearing judge committed him for trial based on allegations of two incidents of sexual assault. With reference to the allegation that after the complainant returned from the Vietnamese gathering, Mr. Garrett forced his penis into her vagina, L.N. told police in a videotaped statement and the preliminary hearing judge that she was assaulted on August 20, 2016. During her examination in chief, she said nothing had happened on August 20. In cross-examination, she then testified that she came home from the gathering, saw Mr. Garrett’s light was on and knew he was up waiting for her, closed her door and he barged into her room smelling of drugs and beer and questioned why she did not bring him to her friend’s house? Then he hit her, pinned her down and made love to her.

[55] Moreover, earlier in her testimony, she testified that she had an argument with Mr. Garrett that night when he brought home another woman. However, when this was later put to her, she said “why would I have an argument with him?” She also said that the day he brought the woman home was another occasion where she was in the living room and he brought the woman home and then gave her money to get a taxi. While she had testified that occurred on August 20, she later said that happened on a different night.

[56] Counsel for Mr. Garrett reviewed the complainant’s testimony with her again as she had testified in examination in chief that these events occurred on August 20 and that she had seen the woman step out of Mr. Garret’s room, he gave her $20 for a taxi, that she went to her room and Mr. Garrett came in, disturbed her and they argued. Then his brother Jason, who lived in the complainant’s house from May until August 2016 and slept in the bedroom next to hers, came in and cursed him for being loud and then went back to his room and went to sleep. She said that Mr. Garrett forced her to have intercourse. In cross-examination, she later said that this all happened a few weeks earlier and not on August 20. She did not mention to police the incident where she says Mr. Garrett brought a woman home and then sexually assaulted her after they had an argument.

[57] L.N. said she could not remember what she told police but said that “every time he drank, he would sexually assault her”. During her evidence at trial, she mentioned an incident where Mr. Garrett drank all her Hennessey that she received from her sister for her birthday and that he then sexually assaulted her.

[58] In summary, L.N. testified that Mr. Garrett repeatedly assaulted her and that she was fearful of him and would hide in her room. It was put to her, that notwithstanding her fear, she allowed her son to go on vacation to New Brunswick in June 2016 with Mr. Garrett. She said that was because his brother’s girlfriend had a child the same age and that the girlfriend had pleaded with her to let him go. She agreed that she let her son go on the trip although she was afraid of Mr. Garrett and worried about her son’s safety. While the complainant testified that she knew Jason Garrett’s girlfriend Cindy for four to five years, Mr. Garret said she knew her for four to five months when Jason began to date her.

[59] Notwithstanding that the complainant was fearful of Mr. Garrett, she also allowed him to continue to reside in her house and to rent a room. She testified that she had driven Mr. Garrett to a number of appointments in order to find accommodation. Although he found a room on the day before he left for New Brunswick in June 2016 and had provided the first and last month’s rent, when he returned after the ten-day trip, he learned that he did not have the room. He questioned whether she had interfered with the rental. She denied this. However, she agreed that she told him he could stay on and pay $600 per month for rent and she would cook his meals. She said she did that so he could find a room but not to keep him back.

[60] The complainant disagreed with defence counsel that it was Mr. Garrett who had broken up with her on June 6, 2016 when he found some drugs in the house and that this was not the first time that he founds drugs and had spoken to her about this. She maintained that she had broken up with him and that he was lying. She denied that she was upset that her son cared for Mr. Garrett and that they had a close connection.

[61] The complainant agreed that Mr. Garrett’s brother rented a room at her house from May until August 2016 in the bedroom next to hers and that he was home sometimes when Mr. Garrett forced sex on her. She also agreed that she would have been making noise when he was doing this. The complainant also testified that Mr. Garrett physically abused her but said that the only injuries she sustained were a swollen face and that her vagina hurt. She testified that the only person who would have seen her injuries was Mr. Garrett’s brother’s girlfriend Cindy. She said her son may have seen the injury to her face also.

[62] The defence put to the complainant the proposition that she had fabricated a sexual assault charge after what had happened on August 27, 2016 and that she only disclosed the events after Mr. Garrett hit her on that day because she was upset with him and fabricated the allegation of sexual assault in order to get back at him. The complainant denied this and said that she was ashamed and fearful and did not want to call police because she was afraid Mr. Garrett would kill her and her son.

[63] I find that there were numerous inconsistencies demonstrated during cross-examination between the videotaped statement given to police, the information given to the nurse at the hospital, the evidence given at the preliminary inquiry, and the evidence at trial. I do not consider those inconsistencies to be on collateral issues only. A complainant’s confusion about the date a crime was committed may not be fatal to a charge, but the failure to outline important details and significant inconsistencies between versions of the events given to police, at the preliminary hearing and at trial are pertinent to whether the Crown has proven its case beyond a reasonable doubt. In assessing a witness’ credibility, the court must be mindful of inconsistencies. The trial judge must address and explain how major inconsistencies in the evidence of material witnesses are resolved: see R. v. Williams, 2018 ONCA 138 which quoted the Ontario Court of Appeal in R. v. A.M., 2014 ONCA 769 at para. 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….

[64] In reviewing all the evidence that I do accept, I find that the Crown is not able to establish beyond a reasonable doubt the elements of the offence charged. While I am satisfied that sexual acts took place between the complainant and Mr. Garrett in August 2016, I am not satisfied beyond a reasonable doubt of the complainant’s lack of consent. The conflicting evidence and the numerous inconsistencies in the Crown’s evidence leave me in a state of reasonable doubt as to the accused’s guilt. In applying the principles in R. v. W.(D.), while there are aspects of the defence evidence that I do not believe, for example, that he made no effort to retrieve the first and last months’ rent on a room he rented, Mr. Garrett’s evidence overall does leave me with a reasonable doubt about his guilt. Furthermore, after careful consideration of all the evidence, I am unable to decide whom to believe. In that Crown counsel has failed to prove his guilt beyond a reasonable doubt, I must find Mr. Garrett not guilty of the offence of sexual assault.

[65] In conclusion, I am not satisfied that the Crown has established that Mr. Garrett sexually assaulted the complainant. For these reasons, I find Mr. Garrett not guilty of the count of sexual assault.

Himel J. Released: July 29, 2019