Court File and Parties

COURT FILE NO.: CRIMNJ(P) 1389/19 DATE: 2020 01 16

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – LEONARD BOUCHER Defendant

COUNSEL: I. Singh for the Crown S. Pemberton for the Defendant

HEARD: December 16, 17 and 19, 2019

REASONS FOR JUDGMENT Ricchetti J.

The Charges

[1] Mr. Boucher is charged that he, on October 8, 2017: a) Sexually assaulted D.A.; b) Unlawfully confined D.A.; and c) Uttered a threat to kill D.A.

The Trial Evidence

[2] D.A. and Mr. Boucher testified at the trial.

The Facts

[3] D.A. was approximately 18 years old on October 8, 2017. She was a dancer at a Mississauga strip club. She had been dancing at a club for about 6 months. [4] Neither D.A. nor Mr. Boucher knew each other prior to October 8, 2017. [5] Mr. Boucher came into the club at around 9:30 pm. Mr. Boucher asked D.A. whether she was interested in performing at a birthday party later that evening in Pickering for $1,000. For reasons, not relevant to the ultimate decision in this case, that proposal did not work out. [6] When that proposal did not work out, Mr. Boucher made another proposal to D.A to engage in some sexual activity with him after she finished working at the club that evening. D.A. agreed. An amount was agreed on. D.A. and Mr. Boucher disagree as to the amount agreed on. They were to meet at Mr. Boucher’s vehicle at the end of the night, just outside the club. Mr. Boucher gave D.A. his vanity plate number. [7] At about 1:20 or 1:25 a.m., D.A. got into Mr. Boucher's vehicle waiting just outside the club. From that time until about 8:35 a.m., D.A. performed certain sexual activities for Mr. Boucher. [8] At about 8:35 a.m., D.A. went into a Tim Hortons coffee shop. Mr. Boucher left.

The Issue

[9] The credibility of each D.A. and Mr. Boucher is central to the decision in this case. Their testimony is vastly different as to what happened that night and morning. [10] D.A.'s testimony was that Mr. Boucher agreed to give her $10,000 to perform certain “exhibitions” (taking her clothes off in public, but secluded, places for Mr. Boucher) and assist in Mr. Boucher’s “urination fetish” (which would require D.A. to urinate into a cup and give it to Mr. Boucher). D.A. agreed to do this. D.A. testified that, when she got into Mr. Boucher's vehicle, Mr. Boucher refused to give her any money and said she had to do what he told her to do or he would rape or kill her. D.A. testified that she remained with Mr. Boucher performing the exhibitions at numerous locations and urinating in a cup for Mr. Boucher’s urine fetish because she feared for her safety and life. D.A. testified that she was able to get away at a Tim Hortons at around 8:30 a.m. by locking herself in the bathroom until Mr. Boucher left. [11] Mr. Boucher testified that, when the proposal for the performance at the birthday party did not work out, Mr. Boucher and D.A. agreed upon the sum of $500 for the exhibitions and urine fetish after D.A. finished work that night. Mr. Boucher testified that, when D.A. got into his vehicle, he gave her the $500. Mr. Boucher testified that the subsequent sexual activity was consensual. However, Mr. Boucher said that early in the morning D.A. made/received a phone call. There was a male on her phone. D.A. placed the phone on speaker mode. The male spoke to Mr. Boucher. The male threatened Mr. Boucher with various charges such as sexual assault unless Mr. Boucher provided D.A. with $2,500 the next day and a further $7,500 in the following weeks. Mr. Boucher testified he was scared. He dropped D.A. off at the Tim Hortons, but rather than continue with the sexual activity, he left.

The Position of the Parties

[12] Both counsel recognize that WD applies in this case. [13] The Crown submits that Mr. Boucher's evidence should be rejected in its entirety and should not leave this court with any doubt as to what happened – exactly as was described by D.A. Accordingly, the Crown asks the court to find, beyond a reasonable doubt, the version of events that D.A. testified to, and convict Mr. Boucher on all charges. [14] The Defence submits that Mr. Boucher should be believed as to his version of the events. Alternatively, the court should have a reasonable doubt that Mr. Boucher’s version of events are true. In the further alternative, the Defence submits that D.A. should not be believed. In any case, this should result in a dismissal of all charges against Mr. Boucher.

Analysis

Overview Comment

[15] This is one of those cases, where the court cannot determine, with any degree of confidence, what happened on October 8, 2017. [16] All three charges against Mr. Boucher are dependent on: whether there was an agreement that D.A. consensually perform the sexual activity; whether Mr. Boucher refused to pay D.A. to perform that sexual activity; and whether Mr. Boucher made any threats to cause D.A. to remain with him and perform the sexual activities.

The Evidence of D.A.

[17] There are a number of portions of D.A.'s testimony that raise serious questions. [18] D.A. said that she had not previously met Mr. Boucher. She did not know his name. She said she got into his vehicle at about 1:20-5 a.m. She said that her cell phone was dead at that time: i. It makes little sense that a dancer, who admitted she knew to take safety precautions when going with unknown customers, would get into a stranger's vehicle knowing that her phone was dead. She used it to send her friend a text telling her she was going to go with a "trick" and would text her the address. D.A. knew that her cell phone was her safety line; and ii. D.A. provided a one-page screen shot of her friend's cell phone showing that D.A. had sent her friend a text at 1:20 a.m. explaning that D.A was going with a “trick” and would send her friend an address later. There was no explanation why D.A.'s phone records were not available. If, in fact, D.A.'s phone was dead, according to D.A.’s testimony it would have shown no activity from 1:20 a.m. until about 8:35 a.m. [19] D.A.'s phone records for that night is crucial because: i. D.A. was using her phone when she gave the police a statement “hours later.” Her phone kept “going off” while giving the police statement. There is no evidence that the police looked at D.A.'s phone, viewed/recorded what was on the phone or asked D.A. for her phone records in connection to the events of the morning; ii. Mr. Boucher testified that D.A. was on her phone the entire morning while together. Mr. Boucher said that he spoke to a male who attempted to extort monies from him on D.A.’s phone. D.A.’s phone records would be highly relevant to the events of the evening; iii. D.A. stated that, after Mr. Boucher left at the Tim Hortons, she borrowed a charger from a customer. D.A. did this rather than call the police. And when D.A. got the charger, she called her friend. Further, the 8:20 a.m. text messages on the friend’s phone are cryptic and raises questions. For example, there is no time on the one page of the friend’s screen shot for D.A.'s text message in the morning. Further, there is a reference to "him" that D.A. is told to call. Is it the male who spoke to Mr. Boucher or someone else? and iv. if D.A. was unlawfully confined for several hours, did she have access to her phone during that time period? If so, did she use her phone? Could she have used her phone to obtain assistance? and [20] D.A. testified that she was threatened and felt compelled to do what Mr. Boucher told her to do. She testified her first opportunity to get away from Mr. Boucher was at a Tim Hortons coffee shop at around 8:30 a.m. On the other hand, Mr. Boucher testified that all the sexual activity that morning was consensual. i. D.A. and Mr. Boucher went to a Tim Hortons (not the one at 8:30 a.m. but another one earlier that morning). D.A. went into the Tim Hortons alone. She went to the washroom and locked it. Sometime later, Mr. Boucher came into that Tim Hortons. Mr. Boucher went to the women’s washroom. Mr. Boucher knocked. D.A. unlocked the washroom and let Mr. Boucher in. This evidence is consistent with Mr. Boucher’s evidence that the sexual activity was consensual; ii. During the morning of the events, Mr. Boucher went to an Esso station to get gas. While he pumped gas, D.A. got out of the vehicle, went up to the gas station store/payment area, purchased food, told the store attendant/employee that Mr. Boucher who was outside would pay for the food. The she returned to Mr. Boucher’s vehicle. After pumping gas, Mr. Boucher left D.A. outside in the vehicle and went in to pay for the gas and food. The gas station was well-lit gas station, likely video monitored, with an attendant present. This evidence is consistent with Mr. Boucher’s evidence that the sexual activity was consensual and raises questions regarding D.A.’s alleged compulsion due to threats; iii. There are several videos showing two separate attendances at the Sandman Hotel between 6:00am and about 8:00am. D.A. and Mr. Boucher had gone there to perform some exhibitions and the urine fetish in the stairway. In some portions of the video, D.A. is seen casually following Mr. Boucher. In other parts of the video, hotel employees and other guests are seen walking by her and Mr. Boucher. There is nothing in the videos consistent with D.A. acting under compulsion by threats. On the other hand, the videos are consistent with Mr. Boucher’s evidence that the sexual activity was consensual; and iv. D.A. and Mr. Boucher went to the second Tim Hortons in the morning. D.A. went to the washroom and locked the door. Mr. Boucher remained outside. There were many customers in the store. There were store attendants present. D.A. remained in the washroom for 15 minutes before coming out to see if Mr. Boucher was still outside. This evidence is consistent with Mr. Boucher’s evidence that the sexual activity was consensual.

[19] D.A. testified that Mr. Boucher was to give her $10,000 to perform the exhibitions and the urine fetish. Nothing else like sexual intercourse. She was to take her clothes off in public, but secluded, places. As for the urine fetish, her entire role was to urinate into a cup and give the cup to Mr. Boucher. The amount appears to be substantial given D.A.’s usual activities at the club (taking her clothes of for multiple patrons and providing lap dances) when compared to the $1,000 D.A. thought was a good offer (and wanted to accept) to perform at a "birthday party" in Pickering. Further, by comparison, the second alleged offer of $10,000 by Mr. Boucher was exponentially better for the activity expected from D.A.

[20] I am not persuaded that D.A.’s evidence is credible.

The Evidence of Mr. Boucher

[21] There are several aspects of Mr. Boucher's evidence that raise serious issues with respect to his credibility: a) Mr. Boucher has convictions for crimes of dishonesty: extortion, theft X 2, and fraud. These prior convictions require the court to carefully assess his evidence; b) Mr. Boucher testified that he had given D.A. $500 when she got into his vehicle – performing his part of the agreement. However, during his police statement, Mr. Boucher denied that he had given D.A. any money, at all, that evening. This is a significant inconsistency; c) Mr. Boucher testified he had, on one occasion, touched D.A.'s vaginal area. Yet, during his police statement, Mr. Boucher denied that he had ever touched D.A. in a sexual manner. Again, another significant inconsistency; d) Mr. Boucher lives in Scarborough. He said he went to the strip club in Mississauga to find a dancer for a birthday party in Pickering for that evening. Mr. Boucher said he arrived at the strip club on or after 9:30 p.m. Details of the "birthday party" were scarce and there was no real credible reason why Mr. Boucher would undertake this "birthday party" task far from his Scarborough home in Mississauga, drive the dancer to Pickering and then have to return the dancer back to Mississauga area. Equally, why start this task so late in the evening? Then, it appeared that Mr. Boucher quickly abandoned his primary goal of finding a dancer for that evening’s birthday party in favour of finding a dancer for his personal sexual activity. All in all, Mr. Boucher’s evidence as to why and what he did that night leaves many questions unanswered; and e) Mr. Boucher testified that a male on D.A.'s cell phone attempted to extort and threaten him. Mr. Boucher was shocked and scared. Mr. Boucher testified that he simply dropped D.A. at the Tim Hortons and left. Mr. Boucher did not report the extortion or threat to the police. Mr. Boucher’s failure to do so makes little sense. He had given his vanity license plate. to D.A D.A. recognized his car. So, there was no doubt Mr. Boucher could be found if the threat and extortion by the male on D.A.’s phone were real.

Do I Accept Mr. Boucher's Evidence?

[22] For the reasons set out above, I do not.

Does Mr. Boucher's evidence leave me with a reasonable doubt as to his guilt of the offences?

[23] For the reasons set out above, it does not.

Does the evidence that this court accepts establish beyond a reasonable doubt that Mr. Boucher committed the alleged offences?

[24] Having rejected Mr. Boucher’s evidence and finding it does not raise a reasonable doubt, the only evidence regarding the alleged non-payment of the agreed amount, the alleged threat, and the basis for the resulting unlawful confinement charge is D.A.’s evidence. [25] There are two fundamental problems which prevent this court from concluding that the Crown has proven beyond a reasonable doubt Mr. Boucher committed the alleged offences; a) D.A.'s evidence is largely rejected as not being credible for the reasons set out above; and b) The lack of any evidence regarding D.A.’s phone records for that morning leaves a significant doubt as to D.A.’s version of the events. This absence of evidence raises a reasonable doubt on D.A.’s evidence.

Conclusion

[26] I find Mr. Boucher not guilty on all charges.

Ricchetti J. Released: January 16, 2020