Court File and Parties
COURT FILE NO.: CR-18-30000668
DATE: 20190816
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
A. H.
Counsel:
Peter Fraser, for the Crown
Ken Snider, for the Accused
HEARD: June 10 – 12, 2019
P.J. Monahan J.
Reasons for Judgment
[1] AH is charged with having sexually assaulted GY on February 3, 2018, contrary to s. 271 of the Criminal Code. AH is also charged with having induced GY to engage in sexual intercourse by threats, thereby committing extortion contrary to s. 346 (1) of the Criminal Code.
[2] For the reasons that follow, I find that the Crown has not proven beyond a reasonable doubt that AH committed the alleged sexual assault, or that he induced GY to engage in sexual intercourse through making threats. I therefore find him not guilty of the offences charged.
Evidence
[3] There were two witnesses for the Crown, the complainant GY and her boyfriend MB. The defence did not tender any evidence.
[4] GY is 19 years old and was 18 at the time of the alleged assaults. GY testified that she and AH began dating in December 2017, and that she had ended the relationship with AH in mid-January 2018.
[5] Sometime on February 2, 2018, AH and GY met for about 30 minutes at the community college where they were both students. GY testified that AH was angry because she had ended their relationship. He said he wanted some items he had partially paid for returned to him. He also asked her whether she still wanted to do a “noodle challenge”, which apparently involved a contest to see who could eat the most noodles. GY told AH she didn’t want to do the noodle challenge and that he should just leave her alone. GY was not sure what else was said by either of them. At some point GY told AH that she had to go because her new boyfriend was waiting for her.
[6] At approximately 5:46 PM that day, GY sent a text to AH, saying she would give him his items at 12 pm the next day. AH replied stating that he would meet her the next day at 1 PM, and asked “do u remember wut I said about snapchat”. Her reply was “ok sure will be friends when do u wanna go for badminton?” He said “I’ll talk to u tmrow, be ready at 1 pm to come down.”
[7] At 1:08 pm the next day, February 3, 2018, AH texted GY to tell her that he had arrived at the apartment building where she lived with her parents and that she should come down to the lobby. GY did so and gave AH his items in a bag. GY testified that when she attempted to return upstairs, AH grabbed her arm and told her that she had to come with him to buy noodles, otherwise he would show “her nudes” to her parents. GY understood “her nudes” to be revealing photos that she had taken of herself. Although she was clothed in the photos, the photos showed her bare shoulders and belly. GY had never discussed or shared these photos with AH. However, she had shared them with a former boyfriend, MR.
[8] GY testified that she asked AH what “nudes” he was referring to. She cannot remember if AH said anything in response. GY also cannot remember whether AH explained how he had obtained the photos. GY testified that she believes that AH must have obtained the photos from her ex-boyfriend, MR. However, GY testified that AH did not show her any photos, nor did he suggest that he had received the photos from MR. GY does not remember whether they had any further discussion about the photos.
[9] GY went back upstairs to her parents’ apartment to get changed, which took some period of time. At 1:38 PM, AH sent a text to GY telling her to hurry up. At 1:43 PM, AH sent an email stating simply, “1 50”.
[10] Once GY finished changing, she rejoined AH downstairs and they left together in his car. GY testified that they initially went to a grocery store to buy noodles, and later went to a McDonald’s to get something to eat. They took the food back to AH’s house, where he was living with his parents. No one else was home at the time.
[11] GY testified that they watched TV for some period of time. However, she does not recall what they watched or for how long. She recalls that AH asked her why she broke up with him. He also told her that her boyfriend would cheat on her. However, she does not recall whether she said anything in response. She’s not sure if they spoke about anything else.
[12] At some point AH told her that if she didn’t have sex with him he would show the nudes to her parents. This was the first time the suggestion of having sex was raised. GY told AH that she did not want to have sex and she asked him to show her the photos if he had them. She does not recall what AH said in response. However, he did not show any photos to her.
[13] GY’s evidence was that AH suggested that they each leave their cell phones in his parents’ bedroom. However, GY does not recall whether AH explained why he made this suggestion. She assumes it was so that she would not be able to call the police while they were having sex. However, she does not recall whether he ever made any statement to this effect.
[14] GY was not sure how they ended up in AH’s bedroom, how sex was initiated or by whom, or how she got onto the bed in his room. GY testified that she and AH remained clothed during sex, but that AH pulled her pants down to her knees in order to have sex. Initially she agreed with a suggestion from the Crown that AH had been on top of her during sex. However, later she altered her testimony to indicate that he had been standing by the side of the bed while she was lying on her back. Later they had sex in the “doggie” position.
[15] She testified that the sexual activity continued for approximately 30 minutes. She further stated that during the entire time they were having sex she was objecting and attempting to push him away, and trying to pull her pants back up. However, GY also testified that AH was not physically forcing her to have sex.
[16] While in the bedroom, GY noticed a 10 inch knife sitting on a desk, in some sort of cloth sheath. She was fearful that he would use the knife to threaten her if she did not comply with his request to have sex. However, AH made no mention of the knife.
[17] GY could not recall what occurred after they finished their sexual activity, other than that she told him she wanted to leave. AH offered to drive her back to her parents’ apartment. She said she would go home on her own, but he insisted on driving her. They left AH’s house at around 7 pm and it took about 30 minutes to drive her home.
[18] After she arrived back at her parents’ apartment, she texted her boyfriend, MB. GY is not sure how long after she got back to her parents’ apartment before she texted MB, but it may have been a few hours later.
[19] In a series of texts beginning at 7:31 pm, GY told MB that her ex-boyfriend had threatened to show “our nudes and pictures” to her parents if she didn’t have sex with him. GY told MB that her “ex” had taken her over to his place and used her for sex. GY told MB that she was shaking the whole time and that her “ex” had basically raped her.
[20] MB told her that she should have called him when her “ex” threatened her. MB then told her he was coming to get her to take her to the police station to report the sexual assault.
I. Applicable Legal Principles
a. The Presumption of Innocence and Proof Beyond a Reasonable Doubt
[21] The presumption of innocence is a cornerstone of our criminal justice system, guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms. The presumption of innocence, along with the standard of proof beyond a reasonable doubt, are important and necessary safeguards to ensure that no innocent person is convicted of an offence and wrongfully deprived of his or her liberty.
[22] Thus, AH is presumed innocent of the charges brought against him and this presumption remains with him unless and until the Crown proves his guilt beyond a reasonable doubt. This is a heavy burden that remains on the Crown and never shifts.
[23] AH did not testify and the defence tendered no evidence. There is no onus on an accused to prove his innocence by going into the witness box or by tendering evidence. It is up to the Crown to prove an accused’s guilt beyond a reasonable doubt, not the other way around.
[24] I remind myself of the meaning of the phrase proof beyond a reasonable doubt. A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense, one that arises logically from the evidence or absence of evidence. It is not enough for me to believe that AH is probably or likely guilty. In that circumstance I am required to give the benefit of the doubt to AH and acquit him because the Crown would have failed to satisfy me of his guilt beyond a reasonable doubt.
[25] I also recognize that proof beyond a reasonable doubt is not proof to an absolute certainty. But the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. I recognize that I must consider all of the evidence and be sure that AH committed the offences with which he is charged before I can be satisfied beyond a reasonable doubt of his guilt.
b. Assessment of credibility
[26] The Crown’s case consists of the evidence of the complainant GY. Thus to reach a verdict in this case I must assess her credibility.
[27] The Supreme Court of Canada has repeatedly observed that relying on myths and stereotypes in assessing the credibility of sexual assault complainants invokes impermissible reasoning. For example, no inference should be drawn regarding a complainant’s credibility that is based on assumptions about how a victim of sexual assault is supposed to react to the assault. Nor is it appropriate to assume that a victim of sexual assault will subsequently avoid their abuser.
[28] These particular stereotypes and impermissible forms of reasoning are simply not engaged or relied upon in this case. GY reported the sexual assault to the police on the same day it is alleged to have occurred. There was no suggestion at trial that her relationship with AH, either before or after the alleged assault, is relevant to an assessment of her credibility.
[29] I also note that there is no singularly correct or scientific method for assessing credibility. As Chief Justice McLachlin recognized in R. v. M.(R.E.), credibility determinations “may not be purely intellectual and may involve factors that are difficult to verbalize.”[^1] It is precisely for that reason that it is important to avoid credibility assessments based on what Paciocco J.A. has described as “impressions [that are] the product of stereotype, emotional evaluation, or ill-founded confidence in what is no more than guesswork.”[^2]
[30] As Watt J.A. noted in R. v. A.M., one of the most valuable means of assessing witness credibility is to examine inconsistencies in a witness’ evidence.[^3] Inconsistencies may emerge not just from a witness’ testimony at trial, but also 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.
c. Admissibility of Text Messages Between GY and MB
[31] The Crown sought to admit the text messages between the complainant, GY, and her boyfriend, MB, in which she stated that she had been sexually assaulted by AH.
[32] Prior consistent statements are presumptively inadmissible because they lack probative value.[^4] The fact that someone said the same thing on a prior occasion is, generally speaking, not probative of whether the witness’ in-court testimony is truthful.[^5]
[33] However, the common law recognizes a number of exceptions to the basic rule that prior consistent statements are inadmissible. For example, prior consistent statements can be admitted as “pure narrative”, providing background to explain how the complaint came to be before the court. Evidence admitted on this basis cannot be used to prove the truth of its contents but is merely an aid in understanding the case as a whole.
[34] In certain cases, the fact that a statement was made, or the context in which it was made, may assist in assessing the reliability and credibility of a witness’ in-court testimony. Evidence admitted pursuant to this so-called “narrative as circumstantial evidence” exception may be used for the limited purpose of assessing credibility of a witness, but not for the truth of any of the prior statements that were made.[^6]
[35] The text messages between GY and MB were initially admitted at trial as pure narrative. However, in closing argument the Crown sought to rely upon the complainant’s text messages as circumstantial evidence that tended to support her truthfulness and reliability. The Crown reasoned that MB would never have found out about her having sex with AH if GY did not tell him. Thus, in the Crown’s submission, the texts were an “admission against interest” and admissible as circumstantial evidence tending to enhance her credibility.
[36] There are a number of difficulties with this argument. First, the Crown has not shown that, but for the text from GY, MB would never have discovered that GY had sex with AH. Second, in her texts with MB, GY acknowledges that she had sex with AH but claims that she did so only because of his threats regarding the revealing photos. As such, the texts are not an admission against interest but, rather, a justification for her actions. Third, there is nothing about the circumstances or context in which the texts were sent which materially assists in assessing GY’s credibility. The texts were not spontaneous or immediate which, in other cases, has tended to support the admissibility of prior consistent statements as circumstantial evidence. GY testified that she sent the texts to MB hours after being assaulted by AH. The texts merely repeat her allegations that AH forced her to have sex and essentially add very little to her in-court testimony.
[37] I find, therefore, that GY’s texts with MB are not admissible as circumstantial evidence tending to enhance her credibility. The texts are admissible as pure narrative to assist the court in understanding how the complaint was brought to the attention of police, but cannot be used for any other purpose.
Analysis
[38] GY maintained throughout her testimony that she had been forced to have sex by AH against her will. She stated that the only reason she had sex with AH was because he had threatened to show revealing photos to her parents. She testified that AH forced her to have sex because of his anger and jealousy over the fact that she had ended their relationship.
[39] Nevertheless, as the Crown candidly acknowledged in his closing submissions, there were a number of challenges and difficulties with GY’s evidence. The Crown identified three particular areas of concern: (i) lack of detail and vagueness in her narrative of events; (ii) inconsistencies in her testimony; and (iii) her limited memory of key events.
[40] The lack of detail and vagueness in GY’s narrative of events, along with her limited memory of key events, are related concerns that can properly be discussed and considered together.
[41] Beyond the fact that AH threatened to show her parents revealing photos, GY was unable to provide any context or detail regarding her interactions with AH on February 2-3, 2018. For example:
a. GY indicated that she had spoken with AH at the community college for about 30 minutes on February 2, 2018, but she could not recall what they had discussed, other than that AH wanted her to return certain items, and asked about the noodle challenge;
b. On February 2, 2018, AH had sent GY a message stating, “do u remember wut I said about shapchat”, and she had replied, “ok sure will be friends when do u wanna go for badminton”. GY could not recall what AH had meant by the reference to “wut I said about snapchat” or what she had meant by her reply “ok sure will be friends”;
c. GY could not recall any of her discussion with AH about the revealing photos, either at her parents’ apartment or later at AH’s parents’ home. For example, GY could not recall whether AH had told her how he obtained the photos, or what he said when she asked him to show the photos to her;
d. Despite the fact that she and AH spent a number of hours in his parent’s house, GY could not recall anything that happened there, other than the fact that they watched TV in the living room and later had sex in his bedroom. She could not recall what they watched on TV or what they had discussed during that time, other than that AH asked why she had ended their relationship and warned her that her new boyfriend would cheat on her;
e. GY had very limited recollection of the sexual activity that occurred. She could not recall how they ended up in his bedroom, why AH had suggested that they leave their cellphones in his parents’ bedroom, how the sex was initiated, and what happened after they were finished.
[42] GY did not offer any explanation as to why she had such a limited recollection of her interactions with AH. Nor were these interactions minor or peripheral to the alleged assault. For example, GY’s evidence was that the revealing photos were the very reason why she had agreed to have sex with AH. Yet GY was unable to recall the discussions she had with AH about the photos. Nor could GY recall details of the manner in which the sex with AH had occurred on February 3, 2018.
[43] Also concerning are certain inconsistencies in GY’s evidence. GY testified that on February 2, 2018 she told AH that she did not want anything more to do with him in the future. However, later that day she initiated a text exchange with him and, in the course of that exchange, she asked when he wanted to go and play badminton. The fact that she was merely inquiring as to when they would play badminton suggested that they must have previously discussed playing badminton. As such, her email seems inconsistent with her evidence that earlier that day she had told him she did not want anything more to do with him.
[44] This same exchange of texts also seems inconsistent with GY’s evidence that she had ended the romantic relationship with AH some weeks earlier. In fact, the exchange seems to suggest that AH had proposed, via Snapchat, that they “be friends”, and that GY had agreed with his suggestion, rather than the other way around. This is significant since, according to GY, it was AH’s anger over her having ended the romantic relationship that had led him to force her to have sex with him. GY’s agreement that they “be friends” also contradicts her evidence that earlier that day she had told AH that she wanted nothing more to do with him.
[45] A further material inconsistency in GY’s evidence arose in relation to her account of the initial interaction with AH in the lobby of her parents’ apartment on February 3, 2018. In her initial testimony, GY stated that when she had attempted to return upstairs after giving AH his items, he had grabbed her arm and told her that he would show her “nudes” to her parents unless she came with him to buy noodles. She was specifically asked whether she had been allowed to return upstairs to change her clothes before leaving with AH, and she replied that she had not. However, when shown her evidence from the preliminary inquiry she recalled that AH had allowed her to return upstairs to her parents’ apartment to change her clothes, and that AH had waited a significant amount of time for her to return downstairs.
[46] This inconsistency is material since, assuming AH was using the revealing photos to force GY to accompany him to buy noodles (with an ultimate goal of forcing her to have sex), one would have expected that AH and GY would have left immediately. This was GY’s initial evidence; she testified that AH had grabbed her arm and prevented her from returning upstairs. It was only after GY was provided with a transcript of her evidence at the preliminary inquiry suggesting that AH had allowed her to return upstairs that she changed her evidence to conform with her earlier testimony.
[47] The Crown argued that GY was an unsophisticated witness who was not familiar with the court process, and that this may have explained the overall vagueness and lack of detail in her evidence. The Crown also suggested that she may not have understood many of the questions that were posed to her, as evidenced by the fact that she frequently asked for questions to be repeated and she often hesitated before answering. However, the Crown’s suggestion in this regard is speculative, since GY did not indicate that she did not understand the questions that were being posed, which were straightforward in any event.
[48] I accept that GY was an unsophisticated witness. I also accept that complainants in sexual assault cases cannot be expected to remember all of the details of the assaults. The difficulty here is GY’s lack of memory of even the broad outlines of what occurred on February 2-3, 2018. GY did not offer any reason or explanation as to why she may have had difficulty remembering what happened on those days. Nor was GY able to explain the various inconsistencies in her evidence noted above.
[49] As discussed above, the burden is on the Crown to prove the guilt of the accused beyond a reasonable doubt. The overall vagueness, lack of detail, and inconsistencies in GY’s evidence, all without any explanation, point to the conclusion that the Crown has simply failed to discharge that burden.
Disposition
[50] I accept the Crown’s submission that GY appeared to be an honest witness who was genuinely attempting to tell the truth. She did not appear to be evasive and her evidence may well be true. But as discussed earlier, even if I believe that AH is probably or likely guilty, that does not amount to proof beyond a reasonable doubt.
[51] Considering the totality of the evidence, I cannot be sure that AH forced GY to have sex with him without her consent by threatening to show revealing photos to her parents. I find that the Crown has fallen short of proving the guilt of the accused beyond a reasonable doubt on either of the two charges before the court. I therefore find him not guilty on both counts.
P. J. Monahan J.
Released: August 16, 2019
COURT FILE NO.: CR-18-30000668
DATE: 20190816
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
A. H.
REASONS FOR JUDGMENT
P.J. Monahan, J.
Released: August 16, 2019
[^1]: 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 40. [^2]: D. M. Paciocco, "Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment" (2017) 22 Can. Crim. L. Rev. 31 at p. 57. Paciocco J.A. notes that it is preferable to undertake a "disciplined analysis" of the specific evidence offered, rather than the source or manner of presentation. [^3]: 2014 ONCA 769, 123 O.R. (3d) 536 (C.A.), at paras. 12-14. [^4]: R. v. Stirling, 2008 SCC 10, [2008] 1 SCR 272, at paras. 5-7. [^5]: See generally, David Paciocco, "The Perils and Potential of Prior Consistent Statements: Let's Get It Right" (2013) 17 Can. Crim. L. Rev. 181. [^6]: R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520 (C.A.), at para. 39.