COURT FILE NO.: CR-18-0062-00
DATE: 2019-10-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
D. Silvestro & T. Jukes, for the Crown
- and -
JOSEPH JOHN SINCLAIR
B. Sacevich, for the Accused
Accused
HEARD: July 16 and 17, 2019, at Thunder Bay, Ontario
WARNING
AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE
Mr. Justice W. D. Newton
Reasons For Judgment
Overview
[1] Mr. Sinclair is charged with breaking into C.H.’s house contrary to s. 348(1)(b) of the Criminal Code, RSC 1985, c. C-46 and sexually assaulting her contrary to s. 271 of the Criminal Code – both on February 11, 2017. He is also charged with breach of probation contrary to s. 733.1(1) of the Criminal Code.
[2] C.H., Mr. Sinclair and others were drinking at her home after leaving a bar. The Crown alleges that Mr. Sinclair later returned to C.H.’s home, broke in and sexually assaulted her while she was “passed out”. Mr. Sinclair asserts that he and C.H. had consensual sexual intercourse before he left C.H.’s home.
[3] The onus is on the Crown to prove Mr. Sinclair’s guilt beyond a reasonable doubt.
The Facts
[4] The evidence consisted of the testimony of C.H. and Mr. Sinclair, “text” messages between C.H. and Mr. Sinclair, electronic messages between C.H. and Mr. Sinclair’s then girlfriend, and an agreed statement of facts dealing primarily with expert evidence of DNA analysis of samples taken during a sexual assault evidence examination completed on February 12, 2017.
[5] C.H. described her relationship prior to this incident with Mr. Sinclair as “flirtatious”.
[6] On February 10, 2017 C.H. and a friend “had some pre-drinks” and went to a bar at about 10:00 p.m. She testified that she had received some text messages from Mr. Sinclair earlier and that he eventually met her at the bar at about 12:30 a.m. When the bar closed between approximately 2:30 a.m. and 3:00 a.m., she and five others, including Mr. Sinclair went to C.H.’s house to continue drinking. The drinking continued to about 3:00 p.m. or 4:00 p.m. the next afternoon.
[7] C.H. testified that she was consuming “as much as I could” at the bar and that she had “many shots” but could not recall how many. The party continued at C.H.’s home and, in addition to consuming more alcohol, marijuana and cocaine were consumed.
[8] Four of the guests left around 5:30 a.m. leaving Mr. Sinclair and another male with C.H. C.H. testified that Mr. Sinclair went to her bedroom on the third floor at about that time, leaving her with the other male. She and the other male continued to drink until they ran out of alcohol. At about 10:00 a.m. C.H. and the other male left to pick up someone who was sober enough to buy more beer and then C.H. and the other two males returned to her home where they continued to drink. She testified that Mr. Sinclair rejoined them. She assumed that he had been sleeping or had “passed out” in her room. He had been texting her previously.
[9] C.H. testified that they continued to drink until the alcohol was gone and that the other males, including Mr. Sinclair left together. She described her mental state and level of intoxication as “a mess”, “obviously drunk”. She said that she fell asleep on her couch, “passed out”.
[10] She next remembered waking up at about 8:00 p.m. face down on the floor in her living room with her shirt rolled up and her pants only on one leg at the bottom. She said that she had a pillow under her head.
[11] She said that her neck “hurt a little bit”. When asked whether she had any pain anywhere she answered:
Just – my neck was sore, but I didn’t know if it could have been contributed to like [by] a pillow or just how I slept. I was on the floor. I don’t – but my neck was sore, but nothing else on me was sore at that point.
[12] She went to the bathroom and discovered that she did not have a tampon in place as she had when she went to sleep. She went back to sleep on the couch.
[13] The next day, February 12, 2017 at about 3:00 p.m. she went to the hospital because she wanted to be “checked out because it was “pretty evident possibly someone took advantage of me”. She was examined by the sexual assault examination nurse who took the swabs of her external genitalia. C.H. testified that she mentioned to the nurse that her “neck hurt but not – like I didn’t have no marks or anything.”
[14] She testified that she did not know what happened to her but thought, based on the “text messages that we had that night,” that Mr. Sinclair had assaulted her. These text messages were entered as an exhibit. C.H. had gathered the text messages together and sent them to Mr. Sinclair’s then girlfriend via Facebook. The relevant texts are reproduced below:
Mr. Sinclair C.H.
Where is Katie
No worries.
I’m out alone
Don’t be weird
I’m not lol
Tho kitty is off
So what!!!
As if I’m agreeing to this
So
And I’ll fuck the shit
outta kitty if I wanna
Blood and all!!!
Ugh no
Yep!! You’re gonna
Meet the real me
tonight…..
I don’t mind humping
in the shower either…
February 11, 2017 3:18 AM
Omg my life lol
Take Kelsi
Where
No
Cuz I have never agreed and
Kelsi judging me and all
Oh
Hahahao
Wtf?
Lol
Why would you
No!
February 11, 2017 3:46 AM
Hey
Lol
Hey
Meet me in your room
Lol
Does it stink
February 11, 2017 8:01 AM
Why aren’t you up here
Ginger is a homo
Get up here
Hey
You and ginger is all I hear
Bring a pillow up
February 11, 2017 9:14 AM
Hey
Where are you
Wtf
Where are you
Get up here
February 11, 2017 9:57 AM
I left your house
So if you want me to
come back let me know.
If not then…alrighty
Missed call from (807-276-4462)
What are you doing
Hello
You should come get me now
Missed call from (807-276-4462)
Outgoing Call 2/11/17 10:36 AM
February 11, 2017 11:17 AM
If you still want me to
come text me back
I’m about to leave now
February 11, 2017 9:01 PM
Wtf
February 12, 2017 at 3:01 AM
Yea
February 12, 2017 at 3:20 AM
My neck :(
Your back
What?
Idfk
Did you come back when
I was passed out
February 12, 2017 at 3:36 AM
U did
February 12, 2017 at 7:14 AM
No
February 13, 2017 at 11:01 PM
Hey
Hey…
[15] C.H. testified that “Kitty is off” meant that she was menstruating. From these text messages she believed that Mr. Sinclair wanted to have sex with her. She testified that she did not have consensual sex with Mr. Sinclair.
[16] She described herself as a “mess” after this incident. She blamed herself and started using drugs more frequently. Eventually, she decided that it was appropriate to go to the police to accuse Mr. Sinclair because she was trying to get her life back on track.
[17] In cross-examination with respect to her intoxication and her memory loss she stated:
To be honest, that night in question was the worst I’ve ever experienced any potential memory loss. I didn’t, I didn’t – I remember quite a bit, but obviously, I don’t remember everything. Like – I can’t tell you what everyone else was doing at every time because I was intoxicated I was not – I was aware, but I was not fully aware.
And that night was probably the most hard to piece together that I’ve ever had the experience. I usually don’t black out. I don’t miss things. But that night I did.
[18] She thought her spotty memory might have been due to mixing the alcohol and drugs.
[19] Before contacting the police, on the evening of March 29, 2017, C. H. was communicating with Mr. Sinclair’s girlfriend via Facebook. C.H. messaged Mr. Sinclair’s girlfriend that she “was raped and choked out last month in my own house...” C.H. said that “Joe (the accused) likes to choke”. She said she was passed out and that she “did not see him do it” but that getting his DNA “will prove it” - “and bruises on my neck and all”. Throughout the messaging, Mr. Sinclair’s girlfriend accused C.H. of having an affair with him.
[20] In cross-examination, C.H. said that she thought that she was choked because her throat was sore. She said she, “did not witness it though. I was incoherent.”
[21] Mr. Sinclair testified. He acknowledged the text messages and said that he and C.H. had consensual sexual intercourse, with him standing behind her for anal intercourse, and then oral sex. In cross-examination, it was demonstrated that Mr. Sinclair was inconsistent in his recollection of when various events occurred during the evening.
[22] When the samples taken during the sexual assault examination were analyzed, Mr. Sinclair could not be excluded as a contributor to a sperm fraction obtained from one of the external genitalia swabs of C.H. However, a second external genitalia swab was found to contain another male epithelial fraction. Mr. Sinclair was excluded as a contributor to that DNA.
The Applicable Law & Legal Principles
A. Presumption of Innocence and Proof Beyond a Reasonable Doubt
[23] Every person charged with an offence is presumed to be innocent unless and until the Crown proves guilt beyond a reasonable doubt.
[24] The burden on the Crown to prove guilt "beyond a reasonable doubt" is the cornerstone of our criminal justice system. It is not enough for the trier of fact to believe that the accused is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. The Honourable Mr. Justice David Watt describes the proper reasoning process as follows:
If, at the end of the case, after considering all the evidence, you are sure that [the accused] committed the offence, you should find [the accused] guilty of it, since you would have been satisfied of [the accused's] guilt of that offence beyond a reasonable doubt.
If, at the end of the case, based on all the evidence or the lack of evidence, or the credibility of one or more of the witnesses or the reliability of his or her evidence, you are not sure that [the accused] committed the offence, you should find the accused not guilty of it (Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Thomson Reuters, 2015), at p. 262).
B. The R. v. W.(D.) Analysis
[25] In assessing the evidence, I must follow the instructions of the Supreme Court of Canada set down in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. If I believe the accused, I must acquit. If I do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering his evidence in the context of all the evidence, I must acquit. Finally, even if I am not left in doubt by the evidence of the accused, I still must consider whether, based on the evidence that I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused.
- Credibility and Reliability
[26] In assessing the evidence, I must weigh the credibility and reliability of the witnesses’ testimonies. In R. v. M. (A.), 2014 ONCA 769, at paras. 12-13, the Court of Appeal for Ontario succinctly set out the following principles which are particularly relevant to this case:
[12] [O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.), 1994 CanLII 8733 (ON CA), [1994] O.J. No. 2086, 93 C.C.C. (3d) 347 (C.A.), at p. 354 C.C.C., leave to appeal to S.C.C. refused [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.
[13] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354 C.C.C.
[27] The Court of Appeal for Ontario further noted in R. v. L.O., 2015 ONCA 394, at para. 35, that "an isolated, minor inconsistency in a sea of otherwise consistent descriptions of the relevant events would have far less impact on ... credibility and reliability [of the complainant’s evidence] than would several material inconsistencies going to the heart of her allegations."
- Sexual Assault Myths
[28] In deciding sexual assault cases, the trier of fact must be vigilant that myths and stereotypes that are attached to sexual assaults do not influence the decision. As the former Chief Justice of Canada, Beverley McLachlin, stated in R v Find, 2001 SCC 32, [2001] 1 S.C.R. 863 at para. 101:
Traditional myths and stereotypes have long tainted the assessment of the conduct and veracity of complainants in sexual assault cases - the belief that women of “unchaste” character are more likely to have consented or are less worthy of belief; that passivity or even resistance may in fact constitute consent; and that some women invite sexual assault by reason of their dress or behaviour, to name only a few. Based on overwhelming evidence from relevant social science literature, this Court has been willing to accept the prevailing existence of such myths and stereotypes: see, for example, Seaboyer, supra; R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, at pp. 669-71; R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at paras. 94-97.
The Supreme Court of Canada reiterated this warning in two of its judgements this year: R. v. Barton, 2019 SCC 33 and R. v. Goldfinch, 2019 SCC 38. Both cases involved alleged sexual assaults, and, in both, the Court reiterated that reasoning based on myths and stereotypes, because these latter distort truth-seeking, has no place in our justice system.
Analysis and Disposition
[29] The Crown tendered the text messages to support its submission that the accused was interest in having sex with C.H. C.H.’s responses in those text messages cannot be used to argue that she was more likely to have consented to sexual intercourse with the accused. Nor can her admissions to prior “flirtatious” conduct with the accused be used to infer that she likely consented to the sexual activity.
[30] Mr. Sinclair maintained that he and C.H. had consensual sexual intercourse. C.H. denied that she consented.
[31] C.H. described the night of the alleged sexual assault as the “worst” she had ever experienced in terms of memory loss. She testified that she does not “blackout” or “miss things”, but “that night I did.”
[32] On examination-in-chief, C.H. testified that her neck was sore when she awoke after the alleged sexual assault. She thought that the soreness was “contributed to like [by] a pillow or just how I slept.” She did not suggest that her neck was sore because she was choked. In addition, she told the sexual assault examination nurse that her neck hurt but “I didn’t have no marks or anything”. In contrast to this testimony, in her Facebook messages to Mr. Sinclair’s girlfriend, C.H. described being “raped and choked out” and she referred to “bruises on my neck and all”.
[33] There is no explanation for the presence of another male’s DNA on the external genitalia swab of C.H.
[34] Mr. Sinclair appeared to have difficulty recalling the timing of events that he reported had transpired during the event.
[35] To convict Mr. Sinclair of the alleged sexual assault, I must be satisfied beyond a reasonable doubt, on the totality of the evidence, that he is guilty. If I am unsure of his guilt, I must acquit him.
[36] The degree of the complainant’s intoxication from alcohol and drugs raises concerns about the reliability of her recollections of the event. At trial, C.H. said that she thought her neck was sore because of the pillow “or [from] just how I slept”. In her Facebook messages to Mr. Sinclair’s girlfriend, she stated that she was “choked out” during the alleged sexual assault. On the other hand, she testified that she had mentioned to the nurse who conducted the sexual assault examination that her neck hurt, but that she had “no marks or anything”. Via Facebook to Mr. Sinclair’s girlfriend, she messaged that she had bruises. These inconsistencies suggest “a carelessness with the truth about which the trier of fact should be concerned”.
[37] Taken in its totality, the evidence could support a finding that Mr. Sinclair and C.H. engaged in consensual sexual intercourse which C.H. does not remember or about which C.H. is being untruthful. If C.H. is being truthful about how she woke up, the presence of another male’s DNA on the genital swab raises the possibility that a male other than the accused was responsible for the alleged sexual assault.
[38] In the circumstances, I am not satisfied of Mr. Sinclair’s guilt beyond a reasonable doubt. I therefore find Mr. Sinclair not guilty of these three charges.
“original signed by”
The Hon. Mr. Justice W. D. Newton
Released: October 7, 2019
COURT FILE NO.: CR-18-0062-00
DATE: 2019-10-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
JOSEPH JOHN SINCLAIR
Accused
REASONS FOR JUDGMENT
WARNING
AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE
Newton J.
Released: October 7, 2019
/lvp