Court File and Parties

COURT FILE NO.: 17-SA5132

DATE: 08/28/2019

COURT OF ONTARIO,

SUPERIOR COURT OF JUSTICE

RE: R. v. J.L.

BEFORE: Mr. Justice C. MacLeod

COUNSEL: Louise Tansey, Counsel, for the Crown (in place of Mr. Thomson) Daniel Nugent, Counsel, for the Defendant

HEARD: June 17 – 26 & July 2nd, 2019

REASONS FOR JUDGMENT[^1]

C. MacLeod J.: (Orally)

[1] This is my decision in the matter of Her Majesty the Queen v. J.L. Mr. L. stands charged with one count of sexual assault and one count of forcible confinement in relation to an incident which took place on November 17th, 2017.

[2] As with all criminal proceedings, the central question leading to conviction or acquittal is whether the Crown has proven the elements of each of the offences beyond a reasonable doubt. Unlike a civil proceeding in which the contest is between two citizens, a criminal proceeding is a contest between the sovereign power of the state (in the name of Her Majesty the Queen) and the individual citizen charged with an offence. Before the state can impose criminal sanctions upon a citizen, an independent and impartial court must be persuaded by properly admissible evidence that the accused is guilty as charged.

[3] Under Canadian law every person charged with an offence has the right to a fair and public hearing, to be presumed innocent unless proven guilty according to law and only to be punished if found guilty on the criminal standard of proof. These essential features of our criminal law are imbedded in the constitution and guaranteed by the Canadian Charter of Rights and Freedoms.

[4] In a criminal proceeding, even a proceeding arising out of a sexual assault, the complainant is not a party. The proceeding remains a proceeding between the state and the accused but the complainant has a central role as a witness and as the victim of the alleged criminal act. In sexual assault cases, the complainant also has particular rights and protections which both the courts and parliament have recognized. In particular the law has moved to protect complainants from unwarranted intrusion into intimate details of their private lives and forbids the trier of fact from rejecting testimony on the basis of improper factors, assumptions or stereotypes. These rights find partial expression in s. 276 of the Criminal Code and are also protected by the Charter.

[5] In the case before me it is undisputed that some form of sexual activity took place on November 17, 2017 in a supply room at the complainant’s place of employment. This included kissing, touching, and exposure of genitals. During the course of the encounter the accused ejaculated. Both parties wound up with ejaculate on their hands and according to the DNA evidence some semen entered the complainant’s vagina. The critical legal question is whether or not the activity was consensual. The onus is on the Crown to prove that it was not.

[6] While the onus is on the Crown, it is important to remember what consent entails. Consent must be positive, ongoing and in the moment. There is no such thing as advance consent or implied consent through failure to object. Positive consent must be communicated and once given may be revoked at any time. As the Supreme Court of Canada has emphasized, “no means no and only yes means yes”. Affirmatively communicated consent must be given for each and every sexual act. (R. v. Goldfinch, 2019 SCC 38, para. 44 and see R. v. Barton, 2019 SCC 33). In short, if I find that the accused touched the complainant for a sexual purpose without her consent or continued to touch her after she told him to stop, he is guilty of sexual assault.

[7] Similarly, if I find that the accused confined the complainant in the supply room and prevented her from leaving against her will, he would be guilty of forcible confinement. Here again there is no objective evidence. It is undisputed that the door was closed by the accused. The question is whether he did this with the knowledge and consent of the complainant or whether he did so with the intent of keeping her in the room and then prevented her from leaving by locking or blocking the door.

[8] There are only two people with direct knowledge of what occurred; the complainant and the accused. The evidence of the police and other witnesses or the DNA expert cannot assist with the question of consent or confinement. Because the accused testified, this case is a classic example of the analytical framework demanded by the Supreme Court of Canada in the case of R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742. Where the accused denies the accusations against him and his evidence is accepted, he must be acquitted. He must also be acquitted if his evidence is problematic but sufficiently plausible to create a reasonable doubt. Finally, even if the evidence of the accused is completely rejected, he cannot be convicted unless the evidence against him is sufficient to prove all elements of the offence in question.

[9] Obviously, this analysis does not take place in separate silos but requires consideration of all of the evidence. The point is this. It is not necessary to conclude that a complainant is lying or acting in bad faith to arrive at an acquittal. Acquittals may result even in the face of evidence that is highly plausible or even probable simply because the evidence does not rise to the necessary degree of certainty or precision for a criminal conviction. If the evidence leaves significant uncertainty as to what occurred, the Crown will not have proven the offence beyond a reasonable doubt. The accused is entitled to the benefit of the doubt. He cannot be convicted of a criminal offence simply because his behaviour is unsavoury or suspect or dubious.

[10] The difficulty in this case is that neither the accused nor the complainant were good witnesses. Both demonstrated a lack of concern for precision. Both were argumentative and defensive when cross-examined. Both changed their answers and their evidence during the trial.

[11] The accused was both argumentative and arrogant in response to questions posed by the Crown. He changed his story repeatedly but refused to acknowledge inconsistencies. At one point he testified that he told the truth during his police interview. At another point he acknowledged that he did not tell the truth or told only as much of the truth as he felt might lead to his release from custody. During the trial he gave a different version of events than he did during one or other of the voir dires but when challenged on the point he refused to recognize inconsistencies and then attempted to modify his testimony. An example of this was his description that the complainant leapt into his arms and wrapped her legs around him on their first meeting in Dalhousie St. This was not his evidence at trial until he was confronted with the voir dire evidence given just days earlier. At that point he changed his evidence to say that she did jump into his arms.

[12] I do not consider Mr. L.’s evidence to be reliable, accurate, or trustworthy. He also has a criminal record that I would be entitled to consider in assessing credibility. It demonstrates a long history of resistance to authority and disdain for the justice system.

[13] The accused, however, has no obligation to prove anything. While I would not accept all of his evidence, it does not follow that it can be rejected in its entirety. His version of events is not completely without credibility nor can it be disproven except by the evidence of the complainant. For a conviction therefore, it is necessary that on the critical points the court can rely upon the evidence of the complainant. I must be satisfied that the complainant’s evidence has the ring of truth whereas the contrary evidence of the accused does not.

[14] A complainant in a sexual assault case is entitled to a respectful and careful hearing of the evidence. She is entitled not to have that evidence rejected simply because it might not match with prohibited myths masquerading as common sense (see R. v. A.R.D., 2017 ABCA 237; aff’d 2018 SCC 6) and in particular that evidence admitted pursuant to s. 276 of the Criminal Code does not stray into “twin myth” reasoning. I would add that in assessing this evidence, the court should not overemphasize minor frailties relative to peripheral details. Allowance must be made for the effect of trauma, the passage of time and ordinary human difficulty in recounting events with precision. This does not however reverse the burden of proof. Ultimately the evidence of the complainant must be sufficiently robust when considered in the context of all of the other evidence that it persuades the trier of fact beyond a reasonable doubt.

[15] In this case there are significant difficulties with the Crown’s evidence. Amongst other things, the complainant was evasive and defensive when challenged over inconsistencies in her evidence. She was argumentative under cross-examination preferring to make declarations of her rights and the meaning of consent than to answer questions. She did not adopt either her statement to the police or her testimony at the preliminary inquiry as her evidence at trial. Rather she stubbornly asserted that her memory at the trial was better than on the earlier occasions. On that point, she agreed with the suggestion put to her by defence counsel that her memory had been “enhanced” in her recent discussions with Crown counsel and with Detective Cranson while preparing for trial.

[16] One of the most troubling issues was her evidence about the events leading up to ejaculation. In chief, the complainant stated that she removed the accused’s pants and touched his penis because he told her to and she was afraid what he might do if she did not comply. She testified that he attempted penetration and then ejaculated. She testified that she had his penis in her hands and that he ejaculated in her hands and his. Later she gave a different version of how the pants came off and how semen got on her hands. In cross examination she stated that she was mistaken about her earlier testimony, that he ejaculated in his own hands and she got semen on her hands after she touched the Kleenex she had got for him to clean himself up.

[17] Similarly, the complainant gave different versions of when and how the text messages were deleted from her telephone. On one occasion she said she saw her children delete the texts. Later she said she saw the children playing with the phone and when she could not find the text messages, she assumed they had deleted them. Similarly, there were differences in her evidence about the text messages, joking about the supply room and discussions about staying over.

[18] The lack of consistency in the evidence appeared to be combined with a somewhat cavalier attitude towards the importance of precision. For example, at one point when the complainant appeared reluctant to agree to a proposition put to her by Mr. Nugent, she suddenly announced that she would agree because she was “tired of beating around the bush”. When I cautioned her about the importance of being accurate she stated that it was fine she would agree with him. This suggested strongly that she viewed herself as engaged in some form of contest with defence counsel. It was not reassuring.

[19] None of these frailties in the evidence taken in isolation would be a reason to reject the evidence of the complainant. She was after all consistent in stating that she did not want the sexual contact and she was consistent in stating that she told the accused to stop. Taken together, however, the inconsistencies about precisely what occurred and about important matters in the chain of events are grounds for concern. As I mentioned earlier, it is not necessary to find that the complainant is fabricating the evidence or to accept the defence theory that she made up the story about an assault to get even with the accused for cancelling their dinner date. The question is whether the evidence is sufficiently reliable to satisfy me that the allegations against the accused are proven.

[20] Besides changes in the evidence during the trial and between earlier sworn testimony and the trial, there were also inconsistencies between the behavior of the complainant and her professed intentions. Most significantly, although she testified repeatedly that she had wanted to meet the accused for lunch before meeting him at a restaurant and pool hall for a first date that evening, she could not explain why she was insistent that this occurred at her workplace on a day when it would be deserted. She was asked why she did not simply arrange to have lunch at the Bridgehead where she met the accused on Dalhousie St. She had no real explanation for that. She testified that she took the accused through two locked doors into her office and then went into the supply room to hang up her coat. She did not explain why they did not simply go straight to the cafeteria. She was also challenged about the seemingly cordial interaction which took place on the sidewalk after the alleged assault including a goodbye kiss.

[21] I am conscious of the need to avoid assessing this evidence against any stereotype as to how a victim of sexual assault ought to behave. On the other hand, this evidence is at least as consistent with the version of events described by the accused as with that of the complainant. The complainant’s answer that she did not think of going to a coffee shop and the only reason for going to the office was to hang up her coat are unconvincing. Her evidence that she was not really keen to meet the accused, was leery about him and wanted to tell him she was also seeing other people does not fit comfortably with this evidence. Her evidence that it only gradually dawned on her that what had gone on was a sexual assault does not explain why she chatted with the accused, showed him how to get to the bus, kissed him goodbye and was still considering dinner after what she now describes as an unpleasant, sordid and scary experience.

[22] The final concern is the DNA evidence. That evidence does not match the description of events by either witness. The complainant states that while the accused attempted vaginal penetration, she does not believe it was successful and that he then ejaculated in his hands. The accused testified that there was no attempt at intercourse and that he “finished himself off” manually when he felt he was about to ejaculate. Neither of these explain the presence of semen apparently originating with the accused. On cross examination, however, the DNA expert testified that semen could have entered the vagina by means of a contaminated finger or other object. This is not inconsistent with the description of events by the accused who testified to mutual masturbation and stated that the complainant continued to touch herself after he ejaculated.

[23] In conclusion, none of these frailties standing alone would be grounds for complete rejection of the complainant’s evidence. I simply find that her evidence is confusing and unreliable. Under the circumstances it is impossible to conclude that the case against the accused for sexual assault has been proven beyond a reasonable doubt. The charge of forcible confinement suffers from even greater difficulty. There is no doubt that the door was closed but I am unable to conclude that the Crown has proven any intent to prevent the complainant from leaving or any action on the part of the accused that could be construed in that manner.

[24] Having reached this conclusion, the accused is acquitted on both charges.

C. MacLeod J.

Date: August 28, 2019

[^1]: In this matter there is a publication ban pursuant to s. 486.4 of the Criminal Code of Canada which provides that it is an offence to publish any information that could publicly identify the complainant.