Court File and Parties
COURT FILE NO.: 17-RA19529 DATE: 2020-04-07
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – TYLER FLOYD and AMANDA MAILLOUX
Counsel: Jason Neubauer, for the Crown Allan Brass and Shira Brass, for Tyler Floyd Kirstin McCrae, for Amanda Mailloux
HEARD: November 19 – 22, 25 – 29, December 4 - 6, 9 – 11, 17, 2019, February 6, 10 – 12, and February 25, 2020
Restriction on Publication
An Order was made under section 486.4 of the Criminal Code that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.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
1The accused are both charged with the following offences: distribution of child pornography; advertising sexual services; receiving a material benefit from sexual services; recruiting a person under the age of 18 to provide sexual services; recruiting for the purpose of exploitation; and exercising control for the purpose of exploitation a person under the age of 18. Mr. Floyd is also charged with forcible confinement and assault causing bodily harm. These charged offences are respectively under the following sections of the Criminal Code: s. 163.1 (3); s. 286.4; ss. 286.1 (2) and 286.2 (2); s. 286.3 (2); s. 279.01 (1); s. 279.011 (1); s. 279 (2); and s. 267 (b).
2The complainant was a 15-year-old girl suffering from a drug addiction, and on the run from the Children’s Aid Society group home where she had allegedly been abused at some time prior to when the alleged events occurred.
3The complainant’s closest friend at the time, a woman that she looked up to almost like a mother, was an older escort and drug addict named S. The complainant stayed with S for some time prior to the alleged events, and S supplied drugs to the complainant. Just before the alleged events, the complainant and S ended up at a small motel on the outskirts of Ottawa where they stayed together for a few days before S left, leaving the complainant alone. S said that she tried unsuccessfully to escort at that motel. The complainant met the accused at this small motel shortly after S had left. What happened after is disputed: whether the accused recruited the complainant for sex trade work, as the Crown alleges, or whether the accused simply helped the complainant out of a jam, as Ms. Mailloux testified, is essentially the crux of this matter.
4Irrespective of which version is accepted, it is indisputable that the complainant left this motel to go on a brief road trip with the accused, including travelling to Kingston, Mississauga, and Barrie, and that somehow the complainant’s sexual services were advertised on a sexual services website (Backpage) for times and places that tracked the road trip.
5However, the complainant does not remember much of what she did before meeting the accused and of what she did with the accused, explaining that she was high most of the time, that she was scared, young (“only fifteen”), and that her drug consumption was high at the time and even increased for some time after these events. As a result, the complainant’s memory of what happened on this road trip is extremely limited. She frequently answered that she did not remember and could provide little by way of details of what allegedly occurred.
6The Crown alleges that the accused took advantage of the complainant’s vulnerability to exploit her for their personal gain into performing sex trade work for them. The accused argue that Ms. Mailloux’s testimony raises a reasonable doubt with regards to the guilt of both accused and, in any event, that the complainant lacks credibility or that her evidence is sufficiently unreliable to raise a reasonable doubt.
Issue
7The critical issue in this case is whether the Crown has proven beyond a reasonable doubt that the accused were involved in the incidents alleged by the complainant. The Court’s assessment of the credibility and reliability of the witnesses is at the heart of that analysis.
Legal Principles
8Accused are presumed innocent and the burden of proving their guilt beyond a reasonable doubt is always on the Crown.
9Proof 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.
10To 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.
11In R. v. W.(D), [1991] 1 S.C.R. 742 and cases that followed, the Supreme Court provides guidance to the analysis of reasonable doubt when an accused testifies.
12In 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.
13The rule of reasonable doubt or the functional analysis outlined in R. v. W. (D) applies where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence (or even arising out of evidence favourable to the defence in the Crown’s case). This functional analysis is therefore not limited to the testimony of an accused but extends to other exculpatory evidence that emerges during trial, such as the exculpatory testimony of a co-accused or the exculpatory portions of the admitted statement of an accused. In such instances, the Court “must relate the concept of reasonable doubt to those credibility findings” such that to have reasonable doubt it is not necessary “to believe the defence evidence on that vital issue; rather, it is sufficient if - viewed in the context of all of the evidence - the conflicting evidence leaves [the Court] in a state of reasonable doubt as to the accused’s guilt” (see R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114 and R. v. Fogah, 2018 ONCA 564, at paras. 49 - 56). Here, Ms. Mailloux testified, offering a blanket denial of all allegations. As well, in his statement Mr. Floyd denied some of the questions asked by the detective, while answering others, as described below.
14It is not disputed by the accused that the W.(D) analysis does not apply to objective fault-based elements of a charged offence, here with respect to the child pornography charges under s. 163.1 of the Criminal Code. As a result, it is not disputed that the W.(D) analysis does not apply to the determination of the age-related element in the child pornography charge (see R. v. Ibrahim, 2019 ONCA 631, at para. 39). Indeed, for such an objective element, acceptance of an accused’s denial or other exculpatory evidence does not necessarily entitle the accused to an acquittal on that charge because of the objective component yet to be considered. Here, this is applicable to the charges under s.163.1 (child pornography), as s. 163.1 (5) requires an accused to take reasonable steps to ascertain that the age of the person was 18 years or older.
15It is important to note that in deciding a case, a judge is not comparing each account and deciding which account to believe (see for example, R. v. Esquivel-Benitez, 2020 ONCA 160). 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.
16Indeed, proof beyond a reasonable doubt is not a choice between two alternatives; a court need not resolve conflicts in evidence. As indicated by the Court of Appeal: “There was, of course, a third alternative, namely, if a reasonable doubt existed, in view of the conflicting testimony, as to exactly where the truth of the matter lay, it would, of course, require an acquittal” (R. v. Nimchuk (1977), 33 C.C.C. (2d) 209 (Ont. C.A.), at para. 7).
17As well, a reasonable doubt can arise from evidence that the court ultimately does not accept. For example, in R. v. Danks (Ont. C.A.), [1994] O.J. No. 143, at para. 8, even if the evidence relating to the alibi was ultimately not accepted, this evidence could nonetheless leave the court with a reasonable doubt: “if you do not accept that evidence, but you also do not reject it so that you have a reasonable doubt whether that evidence is true then clearly you would have a reasonable doubt about whether Mr. Danks was the shooter and you would be required to acquit Mr. Danks.”
18Conversely, a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible Crown evidence may constitute enough explanation for the rejection of the evidence of an accused (see R. v. T.M., 2014 ONCA 854, 318 C.C.C. (3d) 421, at para. 68; R. v. J.A., 2010 ONCA 491, 261 C.C.C. (3d) 125, at paras. 22-23, reversed on other grounds, R. v. J.A.A., [2011] 1 S.C.R. 628).
19Our 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 offences with which the accused is charged. 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.
20In a case like this, my assessments of the credibility and reliability of the witnesses’ evidence are particularly important.
21Credibility 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.
22In that regard, I am mindful of the reasons for caution in 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 be easily misinterpreted. As noted in R. v. Levert (2001), 159 C.C.C. (3d) 71 (Ont. C.A.), at para. 27, demeanour evidence has been known to play a role in wrongful convictions. Indeed, demeanour evidence alone can be a notoriously unreliable predictor of the accuracy of the evidence given by a witness as “the law does not clothe the trial judge with divine insight into the hearts and minds of the witnesses” and demeanour should not be sufficient where there are significant inconsistencies and conflicting evidence (see R. v. Norman (1993), 16 O.R. (3d) 295 (C.A.) at para. 55).
23More valuable means of assessing witnesses are to consider the consistency of what they have said on a material matter (internal and external contradictions), improbabilities (exaggerations or illogical propositions), and method of testifying (hesitations, unanswered questions, challenging counsel, or run-on answers - not necessarily demeanour).
24However, demeanour evidence is not completely irrelevant; for example, the way that a witness testifies, such as unanswered questions, challenging counsel, or 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 ONCJ 26572 and R. v. Boyce, [2005] O.J. No. 4313 (Ont. C.A.)). Regardless, trial judges should not unduly rely on demeanour to make credibility findings, and any reliance on demeanour must be approached cautiously because looks can be deceiving. Importantly, a witness’s demeanour cannot become the exclusive determinant of his or her credibility or of the reliability of his or her evidence (see R. v. Hemsworth, 2016 ONCA 85, 344 C.C.C. (3d) 534 at paras. 44 and 45). Indeed, it is often difficult to accurately understand why a witness, whom the judge has never met before, exhibits certain behaviours (see R. v. N. (S.), [2012] 3 S.C.R. 726 and the Canadian Judicial Council’s jury instructions mentioned in that decision). Demeanour is often of limited value because it can be affected by many factors, including the background of the witness, stereotypical attitudes, and the artificiality of and pressure associated with a courtroom. I am also cautious about the dangers associated with related stereotypical arguments and stereotypical thinking; it is indeed difficult to successfully put yourself in the shoes of the witness.
25On the topic of stereotypical thinking, the Court of Appeal warns us in R. v. Cepic, 2019 ONCA 541, that the use of a common-sense approach to credibility assessments can be dangerous because it can “mask reliance on stereotypical assumptions”. It reminds us that “it is an error of law to rely on pre-conceived views about how sexual assault victims would behave…These are the “myths” of appropriate behaviour that the law seeks to eradicate”. Credibility assessments cannot be founded on myths and stereotypes. 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. Assessments of credibility and reliability relating to conflicting facts based only on some assumptions about who would or would not do this or that risks being based on behavioural assumptions, myths, and stereotypes (rather than on an analytical assessment of the evidence) and could as such constitute an error of law (Cepic, at paras. 13 – 16, 24, and 27 and R. v. A.B.A., 2019 ONCA 124, 145 O.R. (3d) 634 at para. 5 – reliance on stereotypical views about how victims of sexual assault would behave when determining credibility is an error of law). Rather, the analysis must relate to the evidence, and not to some stereotypical understanding (Cepic, at paras. 13 and 14).
26On 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] 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 provides guidance on assessing the credibility and reliability of a complainant in the context of young adults testifying about childhood events, which is only slightly applicable to the facts of this case considering the age of the complainant. 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.
27The complainant does not remember significant parts of the alleged chronology of events. On that topic, I note that loss of memory “is direct evidence of nothing except the fact that the witness cannot testify as to what happened during a particular period” (see R. v. J.R., 2006 ONSC 22658, at para. 18).
Analysis
28The accused, Amanda Mailloux, offered a complete denial of the allegations made against her. Despite Ms. Mailloux testifying relatively well, when I consider her evidence in the context of all the evidence, I do not believe the evidence of Ms. Mailloux. I arrive at this conclusion for the following reasons:
- The advertisements for the complainant’s sexual services posted with Barrie as the location, and the rather perfect tracking of the ads for the complainant’s sexual services contradict the version of events offered by Ms. Mailloux. Indeed, according to Ms. Mailloux’s version of events, it is quite unlikely that the complainant could have known precisely where and when they were scheduled to stop as they travelled on their road trip. This is even more so for Barrie because Ms. Mailloux testified that this was an unscheduled stop, decided at the last minute because she was tired.
- When interviewed by the police, Ms. Mailloux denied knowing S, which was not true. When interviewed, Ms. Mailloux said that she might have seen S one time before, she did not know, she said. During her cross-examination, it became clear that she knew S, that she had met S at least twice before. Further, when Ms. Mailloux was interviewed by the police, she whispered to herself when the police officer had left the room: “I’m done with you S” in a way that confirmed that she knew S. As well, although I give this very little weight because it is difficult to assess its true meaning, as I do not know Ms. Mailloux, her whispering the above appeared to express some level of frustration towards S for being involved in this situation, again rather indicating that she knew S.
- Ms. Mailloux said at trial that she had a “crappy” phone at the time, but in her statement to the police she said that she did not have a phone. She had no explanation at trial why she said that during her police interview, which was obviously not true – she did have a phone.
- Less important (and therefore receiving less weight), I agree with the Crown that Ms. Mailloux’s evidence was inconsistent on whether she enjoyed dancing/stripping. During her cross-examination, she said that she did whereas when interviewed by the police she said that she did not. However, this could be attributed to her frustration with the interview process and possibly to some embarrassment; it therefore receives little weight in my reaching the above decision, and I mention this only because it was raised by the Crown.
29Similarly, I do not believe the exculpatory portions contained in the admitted statement of Mr. Floyd largely because of the precise tracking of the ads for the complainant’s sexual services, described above, and because of the ambiguous admissions made by Mr. Floyd during that statement.
30As indicated above, following the R. v. W.(D) analysis, if the Court disbelieves the accused, the Court must still ask whether this evidence, considered in the context of all the evidence, nonetheless leaves the Court with a reasonable doubt about the guilt of the accused. If it does, the accused must be acquitted. Finally, even if the Court disbelieves the evidence of the accused and is not left with a reasonable doubt based on the accused’s evidence, this does not mean that the Crown has proven its case. In such circumstances, the Court must still determine whether the totality of the evidence has proven the accused’s guilt beyond a reasonable doubt – whether, on all the evidence, the Crown has proven each element of the offences charged beyond a reasonable doubt. I therefore next embark on the second part of the W.(D) analysis.
31To start, I disagree with the arguments of the Crown that Ms. Mailloux’s evidence was otherwise generally self-serving. Ms. Mailloux was, for the most part, consistent in her evidence that she never committed these offences. She did not waver on these points. The fact that parts of her evidence are not accepted does not necessarily mean that the bulk of her evidence was self-serving or a fabrication.
32Ms. Mailloux’s evidence about having to leave the Quality Inn is corroborated by the evidence of Ms. Goodfellow (an employee at the front desk of the Quality Inn in Barrie). Ms. Goodfellow confirmed that she would have told the guests in Ms. Mailloux’s room that the dog would have to leave. The video evidence corroborates that Ms. Goodfellow spoke to the accused at about 01:31, shortly before they left that hotel.
33As well, the video surveillance at the Quality Inn generally corroborates Ms. Mailloux’s evidence that she slept for most of the time that she was at that hotel until she was woken up by the argument and fight between Mr. Floyd and the complainant. Indeed, there is no video evidence of Ms. Mailloux at that hotel between the time they got there, and approximately when they left. There is a video of her when they checked in, at about 19:28. The next video of Ms. Mailloux shows her carrying bags to the car at about 02:09. As well, there are two stills taken by Det. Cummings, of surveillance that was not provided to the accused, of Ms. Mailloux in her pyjama after the fight in the hall of the Quality Inn, at approximately 02:04 – 02:07. (Note that Ms. Goodfellow confirmed that the dates on the video surveillance at the Quality Inn are accurate and that the time shown is approximately five minutes ahead – or that five minutes should be subtracted from the times shown on the videos to compute the actual time. Nonetheless, like the lawyers have done, I will use the posted time, understanding that the actual time is five minutes earlier.)
34As well, despite the lengthy cross-examination of Ms. Mailloux relating to travelling on Highway 401, and the likely route between Ottawa and Mono, Ontario, the Google maps introduced as evidence rather corroborate Ms. Mailloux’s version of events relating to stopping in Barrie and the route back to Ottawa.
35Furthermore, Ms. Mailloux’s version of events about how the accused met the complainant, and about why they travelled to Mono generally makes sense and is generally consistent with the bulk of the evidence. For example, the complainant testified that she was hungry, and Ms. Mailloux stated that the complainant was begging for a ride to reach her friend, S. These parts appear to fit with the fact that S was from Huntsville and with the evidence from the Best Western clerk that the complainant might have told her that she needed to get to Huntsville.
36As well, Ms. Mailloux’s evidence of the time in Mississauga is sufficiently detailed and remained rather consistent throughout her cross-examination. By comparison, the complainant had no memory of the time spent in Mississauga or Toronto.
37Furthermore, Ms. Mailloux’ evidence about what happened at Barrie is plausible. It appears from the video surveillance likely that Ms. Mailloux was either sleeping or inactive prior to leaving the hotel later that evening. From the video surveillance, it appears that Mr. Floyd was away from the room shortly before the argument and fight with the complainant. This would support the accused’s version of events that upon returning to their room, Mr. Floyd caught the complainant going through Ms. Mailloux’ things, and that an argument and fight followed, and this seems more likely than the version of events provided by the complainant.
38Indeed, the complainant admitted that Mr. Floyd dumped her belongings, which rather supports Ms. Mailloux’s narrative that Mr. Floyd had seen the complainant go through Ms. Mailloux’s things. As well, the complainant’s version of events about this also contains a number of inconsistencies. For example, she changed her evidence a number of times about whether she was forced to go out and look for a call after or before she was punched by Mr. Floyd. Initially, in her statement to the police, she stated that she was forced to go out to look for a call after she was punched. During her testimony in-chief, while watching the relevant videos, she said that she left the room at that time upset but not after the punching because she did not remember coming out of the room without her things after being punched. Later, during her testimony in-chief, she could not remember if it was before or after being punched. However, during her cross-examination, she ultimately confirmed that video lines 46 and 48 (when she is seen out of the room, walking the hallway of the Quality Inn) occurred before she was punched by Mr. Floyd. It seemed to me, when I heard her evidence, that the complainant’s final answer was her determinative answer; that she was punched after these videos, after she is seen walking in the hallway of the Quality Inn.
39As a result, I find that the altercation with Mr. Floyd occurred after the complainant is seen walking in the hallway of the Quality Inn (because, as indicated above, that is what the complainant finally said during her cross-examination). Consequently, I do not accept the complainant’s version of events that Mr. Floyd was sleeping or resting on the bed just prior to the altercation because this is contradicted by the time indicated on the video surveillance. Indeed, at about 01:49, two people are seen walking towards the accused’s car, likely, Mr. Floyd and Travis (one of the other two people also travelling with the accused, and who were not called by the Crown to testify). The video shows the car leaving; and later at about 01:54, the complainant is seen walking in the hotel hallway until she returns to the room at about 01:55. At about 01:57, the accused’s car is seen returning. I therefore find that Mr. Floyd was not present in the hotel room from about 01:49 until about 01:57. At 01:59, the complainant is seen leaving the hotel with her luggage.
40Consequently, I find that the altercation with Mr. Floyd occurred after 01:57 and before 01:59. I, therefore, do not accept the complainant’s evidence that Mr. Floyd was sleeping or resting just before the altercation, and I find that the altercation occurred because when Mr. Floyd entered the room, he found the complainant going through Ms. Mailloux’s things. (The above refers to the indicated time and, as indicated above, we know from the evidence of Ms. Goodfellow that we have to subtract five minutes from the indicated times to arrive at the actual time.)
41As well, the evidence of the complainant about whether she did any calls in Barrie is either unclear or inconsistent. At some point she indicated that she was pretty sure that she did one call while in Barrie, but then could not remember, and ultimately, said that she had no idea: “Honestly, I’m just going to say, I have no idea because I think I did, but I don’t want to say that and be wrong, so I’d rather just say I have no idea”. Another example is that the complainant’s statements as to what caused Mr. Floyd to become angry varied from not trying hard enough to get clients to communicating with S. Assuming either of those scenarios, it is difficult to understand how, upon waking up, Mr. Floyd would have known that the complainant was either not trying hard enough or was communicating with S. As well, if Mr. Floyd woke up or looked and noticed that the complainant was using Ms. Mailloux’s phone, it is difficult to understand why this would make him unhappy if they wanted the complainant to get more clients.
42The fact that when Ms. Mailloux was interviewed by the police she indicated that she did not know how they met the complainant is not a sufficient inconsistency, considering that it is apparent from watching the police interview that Ms. Mailloux did not want to talk to the police officer (she wanted to end the interview); she was frustrated by the interview process, and therefore carelessly limited her answers or gave flippant answers in an unsuccessful effort to brush off questions.
43As well, I find the inconsistencies raised by the Crown in its closing submissions about Ms. Mailloux’s pre-existing knowledge of Backpage (the sexual services website used to post the sexual services of the complainant) to be relatively inconsequential – it is somewhat understandable that Ms. Mailloux might not precisely remember the chronology of when she heard of this service. I also disagree with the arguments of the Crown and rather found acceptable Ms. Mailloux’s evidence about whether she was worried that the complainant would report them to the police – Ms. Mailloux said that she was worried about Mr. Floyd being reported for assault and her answers were not necessarily incompatible with the evidence. Similarly, I also disagree with the Crown’s arguments that the fact that Ms. Mailloux was angry when she entered the Best Western is somehow telling of her guilt because Ms. Mailloux admitted that she was angry and explained that she was angry at Mr. Floyd for assaulting the complainant. Finally, considering the evidence, Ms. Mailloux’ criminal record is insufficient to change my general conclusion about her evidence.
44As a result, except for count 11 which I address below, when I consider the evidence of Ms. Mailloux in conjunction with the totality of the evidence, particularly with the evidence of the complainant, I am left with a reasonable doubt on all other counts, against both accused (save for the aggravated assault charge against Mr. Floyd, at count 11, about which I will return).
45Except for count 11, the above explains my conclusion on all counts. However, and in addition, considering the evidence of the complainant, I also make the following finding on the third part of the W.(D) analysis – that if the accused’s evidence had not left me with a reasonable doubt, considering the totality of the evidence, I would conclude, except for count 11, that the Crown has not proven the guilt of the accused beyond a reasonable doubt. Essentially, I do not find the evidence of the complainant sufficiently credible and reliable. My reasons in support of that conclusion and dealing with count 11 follow.
46The Crown argues that the Court cannot use the complainant’s memory difficulties in its reliability analysis; I disagree. A witness’ ability to remember is not a stereotype or a myth as to how a victim of sexual assault would or would not behave. Cepic, and R. v. A.B.A. relate to behaviour and stereotypical assumptions about behaviour, not about the witness’ memory or the way the witness testified at court (such as, for example, unanswered questions, challenging counsel, or run-on and unresponsive answers), and how this may impact the witness’ reliability. A court must be able to look at and analyze a witness’ ability to recall events in order to properly determine whether the Crown has met its onus of proving the charges beyond a reasonable doubt.
47Even on the very specific facts outlined in R. v. Boyle, unreported (Ottawa: December 12, 2019, O.CJ.) per Doody J. at paras. 153 – 156, the Court nonetheless assessed the complaint’s memory issues and how they impacted her reliability. If, in the absence of evidence why this is not appropriate, courts are not able to consider a complainant’s ability to accurately observe, recall, and recount an event due to memory problems, then courts would be limited in how to effectively consider and assess the reliability of complainants in sexual assault cases.
48As indicated above, the Court of Appeal recently reiterated the dangers of using “a common-sense approach to credibility assessment” stating that it can “mask reliance on stereotypical assumptions”. It reminds us that “it is an error of law to rely on pre-conceived views about how sexual assault victims would behave…These are the “myths” of appropriate behaviour that the law seeks to eradicate” (Cepic, at paras. 13 and 14). The analysis must relate to the evidence, and not to some stereotypical understanding (Cepic, and R. v. Quartey, [2018] 3 S.C.R. 687 at para. 3).
49Here, the complainant testified that escorting for the first time is not something she would forget. Nonetheless, this Court is left with no evidence by the complainant on this point. As well, unlike the situation in Boyle, here there is no expert evidence addressing the complainant’s memory issues. The evidence from the complainant is not that the alleged abuse caused her memory lapse but that her drug use during and post event caused her memory problems. Moreover, it is not just about the alleged traumatic events that the complainant has memory problems, it is with most events, including events that pre-date and post-date the allegations and alleged traumatic events.
50The complainant was 15 years old when these events occurred and was 18 when she testified. She appeared as a relatively mature and streetwise teenager. As a result, the evaluation of her credibility and reliability attracts age-appropriate criteria which are different from those that would be applied to testimony describing something said to have occurred when she had been, for example, under 10 years of age.
51The complainant’s statement to the police in May 2017 was given in circumstances that raise doubts about its reliability. During her evidence in-chief, the complainant agreed that she was doing her best to be honest and truthful when giving that statement; however, she stated that it was all a blur and that she did not remember giving that statement. Later during her testimony, the complainant described that she was “pretty well out of it” when she gave that statement, that she was on Valiums, that she was withdrawing, tired and groggy. Later, she also said that she was “pretty high and could not think straight” when she gave that statement.
52The above is not assisted by the fact that the complainant’s memory of what occurred is extremely limited. For example:
- When asked about the portion of her police statement where she states that she had escorted once or twice before meeting the accused, she testified that she could not really remember much, that it was all a fuzz, and that she was pretty high most of the time. Her contradictions on this topic impact both her credibility and her reliability.
- She did not remember the first time that she was allegedly forced to prostitute or how and when that started, despite admitting that this would have been an important event.
- The complainant provided no details of receiving money from any of the accused. Towards the end of her testimony, the complainant admitted that she has no memory of any times the accused gave her money.
- She could not provide the Court with any evidence about how she allegedly started escorting for the accused, which, she admitted, was a big event.
- She could not remember how long she stayed at the hotel on the outskirts of Ottawa, the best she could do was to say that it was between one month and two days. She also appeared to have very little recollection of that hotel, of its surroundings, and more importantly, of what occurred at that hotel. Her evidence attempting to explain why she did not remember the surroundings was inconsistent and did not make sense. This would not have been as important but for the fact that it appeared generally designed to exaggerate how isolated she might have felt at that hotel, which was contradicted by the Google map pictures of the hotel’s surroundings. When confronted with these pictures, the complainant struggled to explain the inconsistencies between her evidence and the pictures, which impacted both her credibility and reliability. The complainant agreed that she had difficulty remembering the details of what happened at that hotel; she could barely remember any details of what happened while she was there.
- Although the complainant had said that she was never left alone, this is generally contradicted by the evidence, including the video surveillance. When she attempted to explain these inconsistencies, the complainant explained that she had to recap her memory by watching the videos because, she said: “I was so high, I didn’t remember”.
- The complainant had no memory of the time spent in Mississauga/Toronto. At trial, other than what she said during the police statement, she did not indicate that she did any calls while in Kingston (which contradicts her earlier statements). At trial, she also had no memory of what occurred in Mississauga or Toronto. As a result, it is unclear where she was allegedly forced to do calls.
- Even with regards to the events in Barrie, she testified that all she remembered was the beating by Mr. Floyd, that before that is just a blur, she said.
- When asked to explain a minor inconsistency about whether the accused had spoken negatively about S, she said that she did not remember, that she did not really remember much, including about the time they were in Toronto and Mississauga, saying: “I can’t really remember”.
- She admitted that she had a distorted sense of reality when she took drugs, that it was hard to recognize reality when you took a ball per day, that it interfered with her memory which was fuzzy, and that some of her memories of that time are a blur.
53The complainant’s evidence also contains a number of inconsistencies. For example:
- The complainant testified that there was nothing near the small hotel at the outskirts of Ottawa where she stayed with S. When confronted with Google maps showing a Tim Horton’s nearby, she refused to acknowledge the obvious fact that her description was inaccurate. Similarly, she refused to acknowledge what appeared to have been a telephone booth next door.
- During the police statement, the complainant said that she was forced to do two or three calls while in Kingston. However, at trial, the complainant did not indicate that she did any calls while in Kingston. She said that she does not remember what happened in Kingston and does not remember having sex in Kingston (which contradicts what she had said earlier at page 21 of police interview).
- The complainant inconsistently described why she allegedly could not leave the accused. Initially, she said that she wanted to leave, but worried what Mr. Floyd would do. Later, she said that she was not thinking right while with them because she was high most of the time. The following day, she said that it was not that she could not leave, it was that she just did not think of leaving. She also testified that she was not uncomfortable with the accused until they neared Toronto/Mississauga (but she also said that she had essentially little to no recollection of what occurred in Toronto/Mississauga).
- At page 48 of the transcript of the preliminary inquiry of September 13, the complainant said that “…I packed my shit and ran as fast as I could. And he tracked me down. He got me to get out after the fact that he hit me because he ran after me. My face was smashed up at the hotel when I got there, and he ran and chased me after.” However, when the surveillance videos are reviewed, this is not how it happened. The complainant did not run out of the hotel and Mr. Floyd did not run or chase after her (and Mr. Floyd did not “got me to get out after the fact that he hit me because he ran after me”). Rather, the surveillance videos show that the complainant walked out of the hotel and moments later a male figure, likely Mr. Floyd, also walked out as if to make sure that she had left. She said that this was her memory of those events – her memory is inaccurate. During her cross-examination, she attempted to explain this by saying that she was walking because she was trying to put on her backpack, but she admitted that she used the wrong words to describe how she left.
- The complainant testified that the accused were always watching her, 24 – 7, and that she was unable to go out alone. However, for example, she is observed on the surveillance video walking alone in the hallway of the Quality Inn hotel where they were staying.
54The complainant testified about her excessive drug use, which does not assist my assessment of the reliability of her evidence. She testified that she was high during all these events. She said that she was using about one eight ball of crack cocaine per day, which is worth between $200 - $300. She agreed that she would lie and cheat in order to support her drug habit, and that she regularly stole to assist S financially. She agreed that her drug use could have distorted reality.
55As well, the complainant was not credible when she attempted to limit her knowledge of S’s escorting and her role in assisting S with her escorting business. The complainant’s evidence was inconsistent about when she learned that S was escorting. As well, the complainant’s evidence about her role in helping S was contradicted by the evidence of S. Contradicting the complainant, S said that the complainant was involved in helping S with her escorting business, including using Backpage to communicate with S’s clients. This is important as it goes to whom could have posted the ads on Backpage advertising the sexual services of the complainant. The evidence of the complainant in that regard appeared designed to distance herself from S’s escorting. For example, she said that she had only recently found out that S was escorting - which I find is not credible considering S’s evidence and how close the complainant described their relationship (like a mother she said). The complainant also said that she was not involved in S’s business, which is also not credible because it is contradicted by S’s evidence, and S’s evidence is consistent on this point and appears to make sense considering the nature of their relationship.
56I also accept that it is likely that the complainant was escorting prior to meeting with the accused. The complainant’s evidence about this is inconsistent. In her statement to the police, the complainant mentioned that she had been escorting for about two weeks before meeting the accused, about once or twice before, she then said. Her contradictions about this and explanations are not credible when considered in the context of all the evidence. Indeed, the complainant admitted that she was desperate for money, and it appears unlikely that a drug addict, S, would gladly support the complainant’s $300 a day drug addiction. As well, the complainant could not explain the conversation with a neighbour that is described in the police statement, and eventually said that perhaps her memory about this is affected by her drug use. This is all problematic because of the near absence of credible and reliable evidence about how the complainant allegedly started to escort for the accused.
57Indeed, whether the complainant was engaged in the escort business during the weeks before the alleged incidents is relevant to whether she was recruited, which is an element of some of the offences charged. Whether the complainant was recruited is fact specific, and whether the complainant was previously involved in the escort business is a relevant factor to consider when deciding whether she was recruited (see R. v. Gallone, 2019 ONCA 663, 147 O.R. (3d) 225 at paras. 21, 59, and 65; R. v. Lucas-Johnson, 2018 ONSC 3953 at paras. 225 and 269; and on R. v. Evans, 2017 ONSC 4028 at paras. 129 – 133).
58The complainant did not always answer questions that were asked of her. For example, she was asked quite clearly if she knew how to post ads on Backpage from the research that she had conducted relating to S. She answered that she was worried for S’s safety, that she looked into Backpage only to make sure S was safe, because she did not know if it was legal, but she did not answer that question.
59In addition, the complainant was not truthful at the preliminary inquiry when she testified about how she received an injury on her chest. As well at trial, she said that she would not have told the detective that it was an “argument” with S when she was reviewing her preliminary transcript in preparation for trial. Even when the notes of the detective were put to the complainant, she would not concede this point. The detective was called to testify and, in reviewing her notes, said that the complainant had described this event with S as an “argument” during their preparatory meeting. Furthermore, the complainant showed a past tendency to lie when she thought that it might assist her. For example, she lied about her age when it suited her purpose. Also, she agreed that she lied in her statement to the police when she said that she had escorted before. She also did not follow exclusion of witness warnings given at the preliminary inquiry because she obviously communicated with S about her eyelashes and whether she had pulled them out.
60The Crown argues that the complainant’s testimony is corroborated by the fact that the hotel clerk testified that the complainant appeared scared and fearful when she arrived at the Best Western. However, I find that this is not indicative of the accused’s guilt because the complainant and Mr. Floyd had just been involved in a physical altercation which could just as well cause the complainant to appear scared or fearful.
61As a result, when I consider all the evidence, I am left with very little reliable or credible evidence as to how the accused allegedly recruited or persuaded the complainant into prostitution, about how they exercised control over the complainant, confined the complainant, and about who took the pictures of the complaint and who advertised her sexual services.
62About the latter, Ms. Mailloux was not shaken during her cross-examination that she had not taken pictures of the complainant or posted sexual ads about the complainant. The perfect tracking of the Backpage ads could be explained by a number of reasons not involving the guilt of the accused. Indeed, the complainant’s evidence about her ability to take and post such pictures and ads was inconsistent, and Det. Cummings noted that S used text now to communicate with the complainant. The pictures could have been taken earlier at the hotel on the outskirts of Ottawa and the lingerie seen on the pictures is rather unexplained as there is no evidence of the accused shopping for lingerie after meeting the complainant; the complainant admitted late in her evidence that Ms. Mailloux did not appear to have left to go shopping. As well, the evidence indicates the possibility that the complainant and S communicated during the alleged incident, because the complainant indicated that she was trying to reach S, indicated that she did not know if S answered her text message sent in Barrie, admitted to communicating with S using her kobo, and agreed that she might have communicated with S while on the road trip.
63Mr. Floyd’s statement to the police is not admissible against Ms. Mailloux, but nonetheless, contrary to what is argued by the Crown, it does not assist the Crown in that regard. Indeed, when Mr. Floyd was asked who posted the ads of the complainant, whether it was Ms. Mailloux or him, he answered that Ms. Mailloux might have helped the complainant when she was asked to help, but he also said:
They posted their own ads man… the girls posted their own ads… I may lend them money to get bit coin, pre-paid card… you know I don’t try to get people involved in this shit man. They’re involved in it already…
64As a result, considering all the evidence, I am unable to conclude as to who was responsible for taking sexual pictures of the complainant and advertising the complainant on Backpage.
65At some point the complainant’s near complete lack of recollection, coupled with the many inconsistencies in her evidence, raise a reasonable doubt about the elements of the offences charged when I consider the totality of the evidence (except for count 11).
66The Crown argues that Mr. Floyd admitted in his police statement to receiving a material benefit from sex trade work done by the complainant. However, when his statement is read in its entirety, to understand better what he meant, I have a reasonable doubt whether the statements made by Mr. Floyd have that effect. Mr. Floyd said that he allowed the complainant to travel with them because she had nowhere else to go. In addition to the passages quoted by the Crown in its written submissions, Mr. Floyd also said that anything the complainant made she spent on food, room, and things she needed. As a result, his statement to the police can also be understood to imply that the complainant paid for purchases she made. This ambiguity coupled with the complainant’s flawed memory about money exchanges does not prove beyond a reasonable doubt that the accused received a material benefit from the sexual services of the complainant. As well, when his police statement is read in its entirety, I disagree that Mr. Floyd implicated Ms. Mailloux as the person who posted the Backpage ads, and therefore, I disagree that his statements establish his involvement in the advertisements of the complainant. As a result, his police statement and his spontaneous utterance to an arresting police officer that “well, I’m going to jail for a long time” are not sufficient to enable the Crown to prove the material elements of the offences charged beyond a reasonable doubt.
67Indeed, it is also not clear from what Mr. Floyd said during the police interview how he lost money, or whether the complainant earned this money on her own and simply paid for her expenses because later, during the police interview, he also said: “…anything that she made was spent like food, room and, and her stuff that she needed on herself…ok?”.
68As well, Mr. Floyd also said: “…I allowed her to come with me out of town because there was nowhere else for her to go because S had abandoned her there and she was slitting her wrists…ok she was starving, and I bought her some food… That’s the way she works, that’s what she does to make money. I didn’t tell her to do that… she self mutilates all the time… she said she was gonna kill herself because she was left there…”
69While there was a physical altercation between the complainant and Mr. Floyd, for the reasons indicated above, I find that this did not relate to the complainant allegedly escorting for the accused. Rather, as indicated above, I find that this fight arose in the context of the complainant looking through Ms. Mailloux’s belongings.
70In her police statement, the complainant said that Mr. Floyd ripped her kobo out of her hand, that she ripped it back and told him not to “fucking touch my stuff”. She said that he then grabbed her kobo and threw it on the ground. She was yelling at him not to “touch my fucking stuff”. She explained that her kobo was precious to her, that she does not own a lot of things. She said that Mr. Floyd then turned around and punched her in the face after which she punched him back, that he punched her again, threw her to the floor and started to “kick me really hard in the head”. She said that he hit her so hard that her eyelashes ripped out. She then said that she went out in the car with Ms. Mailloux to calm down and added, “and then like later like, half an hour later, they were telling me that I have a call come in. I told him I didn’t want to see a call, especially when I have my eyelashes ripped out… They started yelling at me telling me I’m not leaving anywhere until I make the call and make them money so they could pay for the hotel room.”
71As explained above, the above description by the complainant is contradicted by the video surveillance and by the bulk of the evidence.
72At trial, during her evidence in-chief, the complainant described the assault incident as follows. She said that Mr. Floyd and Ms. Mailloux were sleeping in one bed, that Ms. Mailloux was asleep, but that Mr. Floyd was not fully asleep. She said that she was messaging clients for escort services, not using Backpage (I note that her evidence is internally inconsistent regarding whether she was using Backpage). She said that Mr. Floyd was angry because nothing was coming in, because she was not doing much, she was not trying hard. She said that he got mad when he woke up. She agreed that she texted S to come and get her and that Mr. Floyd got mad. She disagreed that she charged at Mr. Floyd and punched him. She agreed that she was high and that withdrawal symptoms could have made her aggressive but stated that she did not charge at him and did not punch him until he hit her first. She said that he punched her first and only after did she punch him back. She also said that he threw her kobo. She said that her eyelids came off as a result of being punched. She agreed that she was angry because he threw her kobo but said that she did not punch him first. She agreed that she had anxiety issues but denied that she pulled at her eyelashes. However, she agreed that she self-armed when she was at the group home. She disagreed that she charged Mr. Floyd first, that he pushed her away with his right hand, and that he punched her with his left hand to get her to back off.
73At one point during her cross-examination, in answer to a question that Mr. Floyd had accused her of going through Ms. Mailloux’s things, the complainant answered that she knows that she would not have done that. To some limited extent, this answer sounded as if the complainant did not really remember but surmised that she would not have done this. Eventually she agreed that Mr. Floyd kicked her out and she agrees that she does not know precisely why she went to the Best Western. She was angry, they had broken her kobo, she had been assaulted, and she wanted S to come and get her.
74Ms. Mailloux testified that the complainant charged at Mr. Floyd first. Ms. Mailloux said that the complainant was really angry. She said that the complainant went at Mr. Floyd strongly, that he tried to stop her before he hit her, but that he did punch her. She said that she was woken up when the complainant and Mr. Floyd were arguing. She said that she heard Mr. Floyd say that the “bitch” had gone through her stuff. She said that the complainant ran towards Mr. Floyd to try and hit him, and that Mr. Floyd punched her in the face two or three times in return. She said that she followed the complainant to the bathroom to calm her down. She said that when the complainant left the bathroom, Mr. Floyd called her a “fat bitch” and the complainant again charged at Mr. Floyd, and that, she said, is when Mr. Floyd asked the complainant to leave, first dumping the complainant’s things out of her bag to verify that the complainant had not taken anything.
75Ms. Mailloux did say that the complainant was the first to swing at Mr. Floyd, and that Mr. Floyd punched her back. She admitted that Mr. Floyd punched the complainant hard, and that he punched her again, saying that he punched the complainant twice, maybe three times before Ms. Mailloux intervened to stop them. She said that she was upset at Mr. Floyd for having assaulted the complainant, she said that he should not have punched the complainant.
76In his police statement, Mr. Floyd was asked why Ms. Mailloux ran after the complainant when the complainant ran out of the room, he answered:
A: Why? I don’t know, make sure she was ok… man she came at me… honestly when somebody comes at me, I black out-of-control. Nobody does that… you know, I’m fucked. I’m fucked (inaudible)
77Mr. Floyd’s version of events of the assault, given in the police statement, does not leave me with a reasonable doubt about the assault when I consider all the evidence, particularly the evidence of Ms. Mailloux. The complainant’s version of events of the assault is not reliable considering my earlier findings that the assault did not happen before the complainant is seen walking in the hallway of the hotel and that the assault did not happen for the reasons stated by the complainant but rather because Mr. Floyd caught the complainant going through Ms. Mailloux’ things. However, when I consider all the evidence about the assault, I have no reasonable doubt that the elements of assault are established. Indeed, the evidence of Ms. Mailloux establishes that Mr. Floyd punched the complainant hard on two or three occasions.
78Mr. Floyd argues that he acted in self defence after the complainant attacked him. However, on the evidence of Ms. Mailloux, I have no reasonable doubt that Mr. Floyd used force that was more than reasonable to defend himself. The evidence of Ms. Mailloux and her reaction to the assault contradict Mr. Floyd’s arguments that he acted reasonably. She testified that he should not have assaulted the complainant. The complainant is a small woman and although she was angry and charging hard, she was impaired and Mr. Floyd could have, in any event, simply pushed her back or otherwise restrained her; he did not have to punch her “hard”, and did not have to punch her hard two or three times (I do not believe that he kicked the complainant). His actions were not reasonable or necessary in the circumstances. Furthermore, Mr. Floyd admitted that he blacked out, which supports Ms. Mailloux’s assessment that he should not have assaulted the complainant as he did, even if the complainant was angry and charging at him. As a result, when I consider s. 34 of the Criminal Code (in the context of all of the evidence), I find that self-defence is unavailable to the accused.
79However, on the issue of the injuries caused to the complainant by the assault, the complainant agreed that she had anxiety issues, and I do not accept that she did not pull at her eyelashes as the complainant also agreed that she self-harmed on occasion. It therefore seems more likely that the complainant pulled at her eyelashes than her eyelashes fell as a result of the complainant being punched. The other injuries of the complainant caused by the assault (not by earlier events) do not meet the low threshold required to constitute bodily harm. They are rather of the order of bruising that does not interfere with the victim’s overall health or ability to function, but for a very short time and to a very minor degree.
Conclusion
80Under count 11, Mr. Floyd is found not guilty of assault causing bodily harm; he is however found guilty of the lesser included offence of assault under s. 266 (a) of the Criminal Code. All other counts are dismissed against both accused, who are both found not guilty of those charges.
Mr. Justice Pierre E. Roger
Released: April 7, 2020
COURT FILE NO.: 17-RA19529 DATE: 2020-04-07
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: HER MAJESTY THE QUEEN – and – TYLER FLOYD and AMANDA MAILLOUX
REASONS FOR DECISION Roger J.
Released: April 7, 2020