WARNING The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4 of the Criminal Code:

(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 279.01, 279.02, 279.03, 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).

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.

Court File and Parties

NEWMARKET COURT FILE NO.: CR-17-07871-00 DATE: 20200320

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen the Crown – and – A.C. Applicant/accused

Counsel: Phyllis Castiglione, for the Provincial Crown Ian B. Kasper, for the Applicant/accused

HEARD: December 10 and 12, 2019

Decision on Directed Verdict

RESTRICTION ON PUBLICATION The publication and broadcast of this ruling is banned pursuant to subsection 486.4 and subsection 539(1) of the Criminal Code of Canada.

SUTHERLAND J.:

Introduction

[1] A.C. has been charged with two counts of sexual assault per section 271 of the Criminal Code.

[2] A.C. brought an application for a directed verdict. After the close of the Crown’s case, A.C. submits that the evidence presented is so manifestly unreliable that the court is compelled to dismiss the charges.

[3] After hearing submissions on this application, I endorsed the indictment that the application is dismissed with reasons to follow.

[4] Below are my reasons.

Factual Background

[5] A.C. and the complainant at the time of the alleged offences were dating and later married.

[6] The sole witness of the Crown was the complainant. The complainant provided direct evidence on the relationship between her and the applicant. She testified on the two incidences that are the factual foundation of the charges against A.C.

Legal Framework

[7] The Crown and applicant do not dispute the legal framework.

[8] The ultimate test to be applied is: “whether or not there is any evidence upon which a reasonably jury properly instructed could return a verdict of guilty.” R. v. Arcuri, 2001 SCC 54, at para. 21.

[9] If the evidence adduced by the Crown is direct, the Supreme Court of Canada stated:

...Where the Crown adduces direct evidence on all the elements of the offence, the case must proceed to trial, regardless of the existence of the defence evidence, as by definition the only conclusion that needs to be reached is whether the evidence is true. Arcuri, at para. 29.

[10] Later on in the decision the Supreme Court of Canada indicated:

...Whatever the evidence of the Crown and defence, the judge must consider “the whole of the evidence”, in the sense that she must consider whether the evidence, if believed, could reasonably support a finding of guilt. The question is the same whether the evidence is direct or circumstantial. The only difference is that, where the evidence is direct, the evidence will by definition support a finding of guilt, the only remaining question being whether the evidence is to be believed, which is a question for the jury. Arcuri, at para. 32.

Position of the Parties

[11] The applicant argues that with direct evidence, the court has a limited consideration on the reliability of the evidence. In support of this position, the applicant directs the court to: R. v. Park, 2009 ABQB 38 aff’d on other grounds 2010 ABCA 248, R. v. Che, 2013 ONCJ 217, R. v. Gregory, 2008 ABPC 304, [R. v. R(RH), 2007 CarswellNfld (Prov. Ct)], and [R. v. Wong, 2004 CarswellOnt 3187 (Sup Ct J)].

[12] The applicant contends that in circumstances that the evidence presented by the Crown is manifestly unreliable that there is no case for the defence to meet. The evidence could not “realistically and reasonably” support a verdict of guilt, not that the evidence could hypothetically support a verdict of guilty. Park, supra, footnote 4, at para. 18.

[13] The applicant does advise the court that there is a competing line of authority that does not permit the assessing of the reliability of the evidence. The applicant directs the court to: R. v. Tomlinson, 2014 ONCA 158, R. v. Tingle and Dunkley, 2018 ONSC 7111, [R. v. J(J), 2010 ONSC 866] and [R. V. Alexander, 2006 CarswellOnt 4765 (Sup Ct. J.)].

[14] The applicant urges the court that in the circumstances of this case, the evidence presented by the Crown is manifestly unreliable. The complainant’s memories at trial are not the same as the memories she stated in her police statement or her preliminary hearing. The memories of the complainant are constantly evolving. The assessment of the complainant’s evidence does not engage in a consideration of the credibility and/or reliability. The evidence of the complainant alone, viewed as a whole, cannot support a guilty verdict.

[15] The Crown contends that the evidence of the complainant, if believed, can support guilty verdicts. The court is not to assess the reliability or credibility of the complainant’s evidence. The evidence presented is direct evidence. It is up to the trier of fact to assess the evidence of the complainant. Not a judge on an application for directed verdict.

Analysis

[16] The cases relied upon by the applicant all predate the Ontario Court of Appeal decision in R. v. Tomlinson. Watt JA is clear in Tomlinson that:

Where the Crown’s case is based on direct evidence, the task of the trial judge on an application for a directed verdict, like the duty of a justice at the preliminary inquiry in similar circumstances, is straight forward. Where there is direct evidence of each essential element, the application for a direct verdict fails: Arcuri, at para. 22. Tomlinson, supra, footnote 10, at para. 153.

[17] I am bound by the Court of Appeal decision in Tomlinson.

[18] The complainant provided direct evidence on each element of the offences in which the applicant has been charged. As I understand the reasons of Watt JA, the court is not permitted to assess the reliability of direct evidence. The obligation to assess the direct evidence of the complainant, as to the complainant’s reliability and credibility, is that of the trier of fact, after hearing all the evidence presented at the trial.

[19] It is not for this court on an application for directed verdict to engage in such assessing.

[20] Thus, given that I find that the complainant has provided direct evidence on each element of the offences in which A.C. has been charged, the application of the A.C. must fail.

[21] The application of the A.C. is dismissed.

Justice P.W. Sutherland

Released: March 20, 2020