SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 18-SA5002
DATE: 20191003
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JAY LENNOX
Accused
Louise Tansey, for the Crown
Daniel Nugent, for the Accused
HEARD: September 5, 6, 9 – 13, 19, 20, and 25, 2019
Restriction on Publication
An Order was made under section 486.4 of the Criminal Code of Canada that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way. This decision does not refer to the complainant or witnesses by name and may be published.
REASONS FOR decision
ROGER J.
Introduction
[1] The accused is charged with sexual assault, sexual interference, and invitation to sexual touching.
[2] The complainant was 15 years old at the time of the alleged offences. At the time, for a period of about three months, the accused dated the complainant’s mother. The complainant is now 17.
[3] The core issue in this case is whether the Crown has proven, beyond a reasonable doubt, that the alleged events occurred.
[4] It is not disputed that, on at least one occasion, the complainant and the accused, early one evening, travelled by bus to attend a pool hall. Considering the evidence, I find that they attended the pool hall probably in September 2017. The complainant alleges that they went to play pool on two occasions, one to two days apart. The accused says that they attended the pool hall only once. More importantly, the complainant alleges that during these occasions the accused touched her over her clothing, kissed her, asked her to touch him, and had her touch his penis over his clothing.
[5] The accused testified and denied the complainant’s allegations of inappropriate sexual contact. The accused stated that he did ride on a city bus with the complainant to play pool. However, he said that this occurred on one occasion only. The accused said that they travelled to the pool hall on a different bus than the bus mentioned by the complainant, a bus whose route did not include a transfer at the Rideau Centre.
[6] The Crown argues that the accused was not believable; that inconsistencies and contradictions in the evidence of the Crown witnesses were on minor points; that collusion was not put to the witnesses; and that during the complainant’s testimony, her extreme demeanour was understandable and, in any event, did not impact her answers. The Crown argues that it has met its onus to prove the guilt of the accused beyond a reasonable doubt. The accused argues that the combined effect of his evidence with the credibility and reliability issues surrounding the evidence of the complainant and other Crown witnesses is sufficient to raise a reasonable doubt.
Legal Principles
[7] An accused is presumed innocent and the burden of proving his or her guilt beyond a reasonable doubt is always on the Crown.
[8] Proof beyond a reasonable doubt is a doubt based on reason and common sense that logically arises from the evidence or from the absence of evidence. A reasonable doubt is not far-fetched or frivolous; it does not involve proof to an absolute certainty or proof beyond any doubt.
[9] To be convinced beyond a reasonable doubt means to be certain that an offence has been made out before convicting someone of the offence. A finding of not guilty is required where the evidence only manages to convince the decision-maker that an offence probably or likely occurred.
[10] In R. v. W.(D), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 and cases that followed, the Supreme Court provides a helpful map to the analysis of reasonable doubt when an accused testifies.
[11] In the context of all the evidence, consider whether you believe the accused; and if you do, you must acquit. If you disbelieve the accused, you must still ask whether this evidence, considered in the context of all the evidence, nonetheless leaves you with a reasonable doubt about the guilt of the accused. If it does, you must acquit. Finally, even if you disbelieve the evidence of the accused, and you are not left with a reasonable doubt based on the accused’s evidence, this does not mean that the Crown has proven its case. Even if the accused’s evidence does not leave you with a reasonable doubt, you must still determine whether the totality of the evidence has proven the accused’s guilt beyond a reasonable doubt – whether, on all the evidence called, the Crown has proven each element of the offences charged beyond a reasonable doubt.
[12] It is important to note that in deciding a case, a judge is not comparing each account and deciding which account to believe. A judge can believe a witness, but still be left with a reasonable doubt about what happened after considering all the evidence. Further, when considering the testimony of a witness, a court can accept all, some, or none of a witness’ testimony.
[13] Our law has developed in this way because of the risks accused people face when they are charged with criminal offences. Before a person is required to face the consequences of a criminal conviction, a judge must be sure that the accused committed the charged offences. If the evidence is not strong enough to convince the judge with that degree of certainty that the accused committed the offence, the accused must be acquitted.
[14] In a case like this, my assessments of the credibility and reliability of the witnesses’ evidence are particularly important.
[15] Credibility relates to a witness’s veracity, whereas reliability concerns the accuracy of the witness’s testimony. Both require a careful assessment. Indeed, a witness may believe his or her evidence to be true, yet that evidence may not be reliable.
[16] Demeanour when testifying is a factor in this case for all witnesses. I am mindful of the reasons for caution when considering demeanour evidence. As indicated in R. v. M.M., 2016 ONSC 5027 and R. v. D.M., 2016 ONSC 7224, whether demeanour is related to in-court or out-of-court behaviour, it can easily be misinterpreted. More valuable means of assessing witnesses are usually to consider the consistency of what they have said on a material matter, contradictions with the evidence of other witnesses, and improbabilities. However, demeanour evidence is not irrelevant, and the way that a witness testifies, such as unanswered questions, challenging counsel, and run-on and unresponsive answers, may also be prudently considered by judges in their assessment of witnesses in conjunction with their assessment of all the evidence (see for example R. v. Hull, 2006 CanLII 26572 and R. v. Boyce, 2005 CanLII 36440 (ON CA), [2005] O.J. No. 4313, Ont. C.A.)). Regardless, trial judges should not unduly rely on demeanour when making a credibility finding, and any reliance on demeanour must be cautiously approached because looks can be deceiving. Indeed, it is often difficult to accurately understand why a witness, whom the judge has never met before, exhibits certain behaviours while testifying (see R. v. N. (S.), 2012 SCC 72, [2012] 3 S.C.R. 726 and the Canadian Judicial Council’s jury instructions mentioned in that decision). I am also cautious about the dangers associated with related stereotypical arguments and stereotypical thinking; it is indeed difficult to successfully put oneself in the shoes of the witness and understand his or her frustration (even occasional contempt) with the court process.
[17] As indicated in R. v. Cepic, 2019 ONCA 541, the use of a common sense approach to credibility assessment can be dangerous because it can “mask reliance on stereotypical assumptions”. For example, a complainant’s failure to avoid the accused following an alleged sexual assault does not give rise to a presumptive adverse inference; rather, it reveals nothing.
[18] Credibility assessments cannot be founded on myths and stereotypes. As indicated in R. v. Dadson, 2018 ONSC 4823, at paras. 79 and 80, before assessing the credibility of a witness visibly frustrated during cross-examination, it is important to consider that “we need to put ourselves in the shoes of the witness… I would expect that a majority of victims would be frustrated.” Similarly, in R. v. Beaudin, 2017 ONSC 1435 (unreported), the court indicated that for a witness who demonstrated contempt for the court process, we should consider that “Individuals living in this chaotic, marginalized, and unpredictable environment cannot be expected, at all times, to act rationally, effectively, and in accordance with all societal norms and expectations”.
[19] On another topic, infant or minor witnesses must be assessed by reference to their age, mental development, understanding, and ability to communicate (R. v. R.W., 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122 at para. 26). In R. v. M.(A.), 2014 ONCA 769, 123 O.R. (3d) 536, the Court of Appeal also provides guidance on assessing the credibility and reliability of a complainant in the context of young adults testifying about childhood events, which is also applicable to witnesses having developmental limitations or reduced understanding. At paras. 9 through 13 it provides:
• First, every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding, and ability to communicate.
• Second, no inflexible rules mandate when a witness' evidence should be evaluated according to "adult" or "child" standards.
• Third, despite this flexibility, there are some guiding principles. 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.
• 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 he or she has said on other occasions. 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.
• Finally, 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.
[20] The accused argues the likelihood of collusion between the complainant and her sister. The Court of Appeal in R. v. C. (B.) (2003), 2003 CanLII 32894 (ON CA), 171 C.C.C. (3d) 159 tells us that collusion can arise both from a deliberate agreement to concoct evidence or from communication among witnesses that could have the effect, whether consciously or unconsciously, of colouring and tailoring their description of the alleged events. There must, however, be some evidence of actual collusion or at least an air of reality to the allegations; the mere allegation or opportunity for collaboration is not enough.
Analysis
[21] In this case, neither the accused nor the complainant was a strong witness.
[22] The accused was occasionally defensive and argumentative, and he occasionally refused to admit the obvious. For example, his evidence was not clear as to why, after the alleged events, he accepted a job so close to the complainant’s residence. He was argumentative and refused to admit the plainly obvious when answering questions about this. He was also argumentative when responding to questions about his lengthy criminal record. The accused was not believable when he said that he never hugged the complainant or her sister, or that he was never alone with either of them because of concerns that they might make false allegations of sexual conduct against him. This was not believable, not just because it was stated in the absolute, but also because the accused’s assertions about this are irreconcilable with the evidence of all witnesses, including the evidence of the accused, that the accused occasionally engaged in wrestling or rough play with the complainant and her sister (which obviously involved touching) and because the accused was alone with the complainant when he admittedly went to play pool with her (albeit in public). Regarding the latter, the accused was also argumentative and refused to admit the obvious when explaining his unintelligible understanding of what it means to be alone with the girls.
[23] As a result, when I consider the evidence of the accused, in the context of all the evidence, I do not believe the accused.
[24] Next, I would usually consider whether the evidence of the accused leaves me with a reasonable doubt. However, as indicated above, the onus in such a case is always on the Crown, and even when the accused’s evidence does not leave the trial judge with a reasonable doubt, the judge must still determine whether the totality of the evidence has proven the accused’s guilt beyond a reasonable doubt. Here, at the end of the analysis, when I consider the totality of the evidence, I find that the Crown has not proven the guilt of the accused beyond a reasonable doubt.
[25] The complainant and her sister were 15 years old in September 2017. It is apparent from their testimony that they suffer from some unspecified learning difficulty. They both exhibited reading and understanding limitations, and both struggled to communicate effectively. Their testimony and behaviour while testifying repeatedly demonstrated that the nuances and subtleties of language are concepts outside their grasp. They both have been involved with the police and with the Children’s Aid Society, and it is apparent that they experienced upheaval in their personal and family lives. The complainant was particularly angry.
[26] While I am mindful of the above, I nonetheless find that the evidence of the complainant contains internal inconsistencies and external contradictions, the cumulative effect of which is to render her evidence unreliable. As a result, I do not believe the complainant beyond a reasonable doubt.
[27] The complainant’s evidence in chief about what happened during each of the two occasions is unclear and inconsistent. The complainant’s video statement to the police of December 27, 2017, was admitted in evidence under s. 715.1 of the Criminal Code, R.S.C., 1985, c. C-46. In that video statement, given slightly more than three months after the alleged events, the complainant’s evidence about what happened is unclear. For example, it is unclear when the accused allegedly took the complainant to the back or side of the pool hall to kiss, touch, and have her touch him inappropriately.
[28] At the start of her video statement to the police and after she had described some of her allegations, the complainant told the questioning detective that she had just described the second alleged occasion of sexual assault. The initial description of the second occasion then appeared to also include the alleged occasion when the complainant says that the accused also took her around the building to touch and kiss her. However, later in the police video statement, when describing the first occasion of the alleged sexual assault, the complainant seemed to be describing this incident when the accused allegedly took her around the building to kiss and touch her. I therefore then understood that this allegation (of being taken around the building to be kissed and touched) had allegedly happened on the first occasion, and that what the complainant had said at the start of her police video statement was simply a description of all that had allegedly happened without necessarily ascribing it to the first or the second occasion. However, when the complainant was asked by the detective to describe the first time that something allegedly happened, the complainant’s initial answer was very brief. She then said that the first time the accused only made her touch his crotch area “and that was it”; she then said (despite saying earlier that “the first time it happened he touched me”). Shortly after, when the detective asked the complainant about the first time, the complainant then described that the accused had touched her leg and back while waiting for the bus and that he had taken her around the back of the pool hall as well. The complainant appeared to understand these simple questions, asked very clearly by the police detective, yet her evidence about this, given about three months after the alleged events, is confusing.
[29] The complainant’s evidence about when she says she was made to touch the complainant’s crotch area is also confusing. As indicated above, she said that the first time it happened “he touched me”. Then she said, “The first time he made me touch his dick and that was it and then the second time he was touching… and then the second time we went, he was touching me and made me touch him”. However, moments later, the detective asked the complainant to tell her about the first time it happened. The complainant’s description of the first occasion, at that time, did not include touching the accused’s crotch area. She then said, “… We were sitting on the ground by Rideau and then he’s like, “You can touch my dick.” I’m like no thank you, I’m good, like that, right, so then he was touching my leg and then touching my back. I’m like can you please stop. I feel really uncomfortable.” However, moments later, the complainant mentioned that “he was touching my leg, touching my back and then he made me touch his dick”, she added that they were sitting outside of Rideau when this happened. The latter contradicts what she had said to the detective moments before: that the accused had asked her to touch him, that she had said, “no thank you, I’m good”, and that he had stopped. Moreover, later during her questioning, the detective asked the complainant if anything else had happened the first time. The detective’s question was, “so the first time that you guys were on the bus together, he was touching your leg and he was touching your back, and then when you get to the pool hall, he takes you around the back… and he was kissing you… Did anything else happened that night?” The complainant’s answer was “no”, despite saying earlier that “he made me touch his dick”. The complainant also contradicted her evidence in chief when, during her cross-examination, she said that the accused got her to touch his “private” on the bus the first and second time.
[30] The complainant, her sister, and their mother understandably described these events as remarkable and, understandably, said that these events affected them greatly. Nonetheless, the complainant could not identify the month the alleged events occurred, and the evidence between them as to when they were told by the complainant and about what they did as a result is inconsistent or contradicted by other evidence.
[31] Although it is understandable that the complainant could not remember precisely when the alleged events occurred, factoring in the complainant’s limitations, it is still somewhat surprising that the complainant was unable to say, in December 2017, whether the alleged events occurred late in August, September, or October 2017.
[32] The complainant’s evidence about when she told her sister (and where they both were when this happened) is inconsistent with her sister’s evidence on this topic. The complainant said that she told her sister about the sexual assault a couple of days after the second occasion, after some prodding by her sister, while the two were walking outside, and the complainant said that her sister then told their mother who called the police the next day. The complainant’s sister, on the other hand, said that she was told by the complainant in the complainant’s bedroom a couple of weeks after these events and that she did not immediately tell their mother. These inconsistencies are not clarified by the evidence of the complainant’s mother. The mother testified that upon learning of the allegations, she immediately communicated with the Children’s Aid Society and the police. However, Exhibit 9 provides that the Ottawa police were first notified on November 21, 2017 (by the Children’s Aid Society and not by the complainant’s mother).
[33] As well, the complainant’s evidence about whether she initially denied these allegations when questioned about them by her mother is internally inconsistent and depending on which of the complainant’s version is considered, it is inconsistent with what her mother said. Early during her cross-examination at trial, which was conducted on a Friday, the complainant said that she had not initially denied these allegations when questioned about them by her mother. This is consistent with what the complainant said during the preliminary inquiry on July 23, 2018. However, later during her cross-examination, which occurred after the weekend, the complainant then said that she had initially said “no” when questioned by her mom about these events and that she had said “yes” when her mother came back and told her not to lie. When confronted with the apparent contradiction between the latter and what she had said at the preliminary inquiry, the complainant insulted the defendant’s lawyer. The mother’s evidence was that the complainant had initially denied the allegations when the mother had approached the complainant about them; the mother said that the complainant denied it the first couple of times.
[34] These inconsistencies are worrisome when one considers the high level of animosity that existed, at the time, between the complainant’s sister and the accused. Both the complainant and her sister agreed that the complainant’s sister disliked the accused and even assaulted the accused either shortly after or shortly before the alleged events. The same evidence about the animosity existing at the time between the complainant’s sister and the accused tends to contradict the evidence of the complainant’s sister that she also wanted to go play pool with the accused (which is to some extent and at times contradicted by the evidence of the complainant about who was asked and who wanted to go play pool – and by the evidence of the mother whether the complainant’s sister was present). Although the lawyer for the defendant never directly asked the complainant and her sister whether they colluded, the relevant contradictions were put to them.
[35] The Crown’s evidence is also not clear on whether there were one or two occasions when the complainant was allegedly sexually assaulted. The complainant consistently described two occasions. However, as described above, she inconsistently described when some of the alleged events occurred (during the first or the second occasion). Also, the complainant’s evidence is inconsistent with that of her mother about a meeting at a hill before the second event (whether her sister was present at the hill and about what occurred during that chance meeting at the hill). More importantly, the complainant’s evidence on this is contradicted by that of her sister and mother. The complainant’s sister said that the complainant told her that she had been sexually assaulted by the accused on one occasion (although the sister said that the complainant had went to play pool on more than one occasion). The complainant’s mother also said that it happened once: the second time that the complainant had gone to play pool.
[36] The above, cumulatively, leaves me with a reasonable doubt about the evidence of the complainant.
[37] During the complainant’s cross-examination, when she did not like a question, the complainant regularly insulted and threatened the defendant’s lawyer. She called the defendant’s lawyer and the defendant all sorts of names and threatened the defendant’s lawyer with bodily harm. She frequently interrupted the cross-examination and left the CCTV room, and occasionally even left the courthouse. She threw chairs, threw the microphone, banged on the walls, screamed obscenities, and even twisted the CCTV camera to point in another direction.
[38] The complainant obviously found it difficult to testify, and it was no doubt a difficult process for her. Testifying in a sexual assault case is difficult, and this is probably made worse by the fact that the complainant was only 15 years old at the time and 17 years old when she testified at trial. It is therefore not surprising that the complainant was, at times, frustrated, angry, and acted outside the norms of expected witness behaviour.
[39] I have a lot of sympathy for the complainant, for what allegedly happened, for her difficulties, and for her limitations. Nonetheless, and I add that I do not fault the lawyer for the defendant, the complainant’s behaviour, while testifying, was likely at the extreme end of any scale.
[40] The complainant was the Crown’s only factual witness on the facts directly relevant to the offences charged. I accommodated the complainant’s difficulties by allowing her to testify as best she could with few judicial interventions. The complainant was able to tell her version of events and I was able to hear what she had to say. I was also able to evaluate her credibility and reliability when she refused to answer relevant questions (for example, when she refused to answer any question about a Google map).
[41] The complainant was angry during her cross-examination, and I understand that she may have many reasons to be angry, including that she may have been sexually assaulted by the accused. However, during her cross-examination, the complainant, despite her limitations, did not make a reasonable effort to answer some of the simple questions that she did not appreciate. Instead, she repeatedly insulted the defendant’s lawyer, threw tantrums, and left the CCTV room. This is a factor that I consider which reinforces my earlier conclusion that the complainant’s evidence is not reliable.
[42] The complainant’s mother was not truthful on a very minor and unimportant point (whether she consumed marijuana). This demonstrated that the complainant’s mother could quite easily not be truthful about something that she did not want to say or admit.
[43] Finally, the complainant’s description of how she reacted on the bus when she was allegedly sexually assaulted by the accused and that she had then not wanted to be rude or disrespectful, is difficult to reconcile with the complainant’s behaviour during her cross-examination. Understanding and allowing for the fact that the complainant’s trial demeanour might have been caused by many things, including: difficulties understanding some of the questions, feelings of frustration at what she might have perceived to have been never ending questions, or even because she was angry that she had to go through this process to prove what had happened, her demeanour nonetheless shows that the complainant is not one to be overly concerned about being rude or disrespectful.
Conclusion
[44] The following shall therefore be entered on the indictment:
Count No. 1: Not guilty (of sexual assault).
Count No. 2: Not guilty (of sexual interference).
Count No. 3: Not guilty (of invitation to sexual touching).
Mr. Justice Pierre E. Roger
Released: October 3, 2019
COURT FILE NO.: 18-SA5002
DATE: 20191003
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
JAY LENNOX
Accused
REASONS FOR decision
Roger J.
Released: October 3, 2019