Her Majesty the Queen v. Brian De La Cruz
COURT FILE NO.: CNJ 9653
DATE: 2020/11/12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
BRIAN DE LA CRUZ
Defendant
COUNSEL:
Cynthia Jennison, Counsel for the Crown
Myles Anevich, Counsel for the Defendant
HEARD: September 2, 3 and 4, 2020
SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY PURSUANT TO S. 486.4 OF THE CRIMINAL CODE OF CANADA
D.A. Broad
Orally
REASONS FOR JUDGMENT
[1] The accused Brian De La Cruz is charged with three offences alleged to have been committed against the complainant A.I. on April 21, 2018, as follows:
Count 1: sexual assault, contrary to Section 271 of the Criminal Code of Canada;
Count 2: unlawful confinement contrary to Section 279(2) of the Criminal Code of Canada; and
Count 3: attempt to suffocate by using his hands, with the intent to commit the indictable offence of sexual assault, contrary to Section 246(a) of the Criminal Code of Canada.
[2] By separate indictment Mr. De La Cruz is charged with the additional offence of failing without lawful excuse to comply with an undertaking given to an officer in charge, namely to abstain from the consumption of alcohol or other intoxicating substance, contrary to Section 145(5.1) of the Criminal Code of Canada.
[3] The accused was tried on both indictments without a jury on September 2, 3 and 4, 2020.
Basic Principles
[4] It is useful to review the basic principles which apply to this prosecution and the nature of the burden of proof which rests on the Crown. The first principle is that Mr. De La Cruz is presumed to be innocent of each of the charges, unless or until the Crown has proven each of the essential elements of each count in the indictments beyond a reasonable doubt.
[5] Reasonable doubt is not a far fetched or frivolous doubt. It is doubt based on reason and common sense and which logically arises from the evidence or lack of evidence led at trial. In order to convict him, it is not enough to find that Mr. De La Cruz probably or likely committed one or more of the offences with which he is charged. However, the Crown is not required to prove with absolute certainty that he committed the offences.
[6] The existence or non-existence of reasonable doubt is to be based on the totality of the evidence. It is not necessary for the Crown to prove each individual piece of evidence beyond a reasonable doubt.
Principles Governing the Assessment of Evidence
(a) Distinction Between Credibility and Reliability
[7] Recognizing the distinction between credibility and reliability is essential to a proper analysis of a witness' evidence. As confirmed by Justice Watt in R. v. C. (H.), 2009 ONCA 56 (Ont. C.A.),
credibility has to do with a witness' veracity, whereas reliability has to do with the accuracy of the witness' testimony involving the witness' ability to accurately observe, recall and recount events in issue. Veracity refers to the truthfulness or honesty of the witness. Although a witness whose evidence on an issue is not credible, cannot give reliable evidence on the same point, credibility is not a substitute for reliability. A credible witness may be honestly mistaken and may therefore give unreliable evidence.
(b) Burden of Proof on the Crown
[8] The paramount question is whether on the whole of the evidence I am left with a reasonable doubt about the guilt of the accused in respect of the offences with which he is charged. That is the central consideration before me. A verdict of guilt must not be based on a choice between the evidence favourable to the accused and the Crown’s evidence, as such an approach would undermine the presumption of innocence and the requirement of proof beyond a reasonable doubt (see R .v. Vuradin, 2013 SCC 38 at para. 21).
[9] It is fundamental that an accused is not required to testify. Even where he chooses not to testify, as Mr. De La Cruz did in this case, the law requires that I take the following approach:
(a) if I believe from the evidence favourable to the accused that he did not commit the offences charged, I must find him not guilty;
(b) even if I do not believe the evidence favourable to the accused, if it leaves me with a reasonable doubt about his guilt, or about an essential element of an offence with which he is charged, I must find him not guilty of that offence; and
(c) even if the evidence favourable to the accused does not leave me with a reasonable doubt of his guilt, or about an essential element of an offence with which he is charged, I may convict him only if the rest of the evidence that I do accept proves his guilt of it beyond a reasonable doubt.
(see R. v. W. (D.) 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (S.C.C.) and R. v. D (B.), 2011 ONCA 51 (C.A.) at para. 114)
[10] I remind myself that the duty on the Crown is to prove the accused’s guilt on each of the four individual counts in the two indictments from start to finish and never shifts. The accused did not have to present evidence or to prove anything.
[11] In the case of R. v. Nyznik 2017 ONSC 4392 (S.C.J.) Justice Molloy made the following important observations at para. 16:
It is sometimes said that the application of these principles is unfair to complainants in sexual assault cases, that judges are improperly dubious of the testimony of complainants, and that the system is tilted in favour of the accused. In my opinion, those critics fail to understand the purpose of a sexual assault trial, which is to determine whether or not a criminal offence has been committed. It is essential that the rights of the complainant be respected in that process and that decisions not be based on outmoded or stereotypical ideas about how victims of assault will or will not behave. However, the focus of a criminal trial is not the vindication of the complainant. The focus must always be on whether or not the alleged offence has been proven beyond a reasonable doubt. In many cases, the only evidence implicating a person accused of sexual assault will be the testimony of the complainant. There will usually be no other eye-witnesses. There will often be no physical or other corroborative evidence. For that reason, a judge is frequently required to scrutinize the testimony of a complainant to determine whether, based on that evidence alone, the guilt of an accused has been proven beyond a reasonable doubt. That is a heavy burden, and one that is hard to discharge on the word of one person. However, the presumption of innocence, placing the burden of proof on the Crown, and the reasonable doubt standard are necessary protections to avoid wrongful convictions. While this may mean that sometimes a guilty person will be acquitted, that is the unavoidable consequence of ensuring that innocent people are never convicted.
[12] In my review of the evidence that follows, it is possible that reference may be made to the absence of evidence on a particular subject or issue. Any such comment or observation should not be interpreted as a shift of the burden of proof to the accused or a requirement that he offer evidence.
Evidence of the Crown
(a) Evidence of A.I.
[13] A.I. testified that she first encountered Mr. De La Cruz at approximately 5:00 a.m. on April 21, 2018 while she was walking in downtown Kitchener.
[14] In April 2018, A.I. was suffering from an addiction to fentanyl, was homeless and had been what she termed “couch surfing,” that is sleeping at the residences of various friends and acquaintances. She was not welcome at her mother’s home when she was using drugs. She stated that she had become addicted to opioids after being prescribed pain-killers to treat a medical condition at age 19 or 20 and later turned to street drugs to alleviate her pain. At the time of trial, she was 35 years of age.
[15] A.I. had stayed at a friend’s apartment overnight from April 20 to 21 but left between 4:00 a.m. and 4:30 a.m. She later stopped at the residences of two different friends for about 15 minutes each.
[16] While A.I. was walking in the area of King St. and Cedar St., Mr. De La Cruz approached her from behind and asked her where he might buy cigarettes. She responded that there was a service station within a few blocks where he could do so. They began walking towards the service station together and carried on a conversation. Mr. De La Cruz told her that during the previous evening he had gone with a friend to a nightclub in Waterloo, that he lived in Toronto and was staying with a friend for the weekend. She testified that, after a few minutes of speaking with him, she could smell alcohol on Mr. De La Cruz’s breath.
[17] During their conversation he told her that he was looking for a girl. She responded, “what makes you think I’m the girl you are looking for?”
[18] Mr. De La Cruz asked A.I. if she wanted to go to his friend’s place to “party.” In her examination-in-chief she testified that she interpreted “partying” to mean “drinking, hanging out and doing drugs.”
[19] A.I. testified that at around 1:00 a.m. earlier that morning she had consumed fentanyl. On cross-examination she acknowledged that this had involved a large quantity. On the previous day she had consumed a quantity of crystal meth. She was in the practice of using crystal meth to alleviate the effects of withdrawal if she was unable to obtain fentanyl. She stated that the effects of the fentanyl had worn off by the time she encountered Mr. De La Cruz and she was feeling achy and uncomfortable due to withdrawal.
[20] Mr. De La Cruz told A.I. he had $100 to pay her to “party” with him. She testified that she needed money but was not “100% sure” what he wanted her to do for the money. He proposed that they go to his friend’s place on Jackson Avenue, which was located beyond the gas station. They walked past the gas station without stopping and proceeded on to the house on Jackson Avenue. On cross-examination A.I. acknowledged that it was at her suggestion that they walked past the gas station and proceeded directly to the residence.
[21] Mr. De La Cruz and A.I. entered the side door of the house and descended the stairs to the basement. After Mr. De La Cruz tried a locked door and then entered and withdrew from the furnace room, the two of them were standing in front of a washer and dryer. A.I. testified that she felt uneasy that Mr. De La Cruz did not appear to know the layout of the basement. He directed her to put her backpack on the washing machine and asked whether she had any condoms. At his instruction she searched her backpack but did not find any condoms.
[22] A.I. testified that Mr. De La Cruz took some money out of his pocket and placed three $20 bills on top of the washer or the dryer. He told her that they could “just do bare back by the washer.” She replied that she did not want to do that and “that’s not what this is about.”
[23] Mr. De La Cruz suggested that she take off her clothes to which she responded “no” and did not do so.
[24] A.I. testified that Mr. De La Cruz said something to the effect that he did not have her there for nothing and not to waste his time, however she added that she could not remember exactly what he said. She stated that he grabbed her arm and pushed her shoulder down as if to have her kneel. He took his shirt off and unfastened his pants. She said he requested her to perform oral sex on him, but she was unable to remember the words he used.
[25] She testified that she thought that she was at the house to “hang out” and that during the walk she “honestly didn’t think it was going to be for a forced sexual act.”
[26] A.I. stated that she tried to perform oral sex on him, but it lasted only a few seconds. She remembers struggling and thinking that she did not want to continue but kept thinking that if she was going to get out of there she had to do so. She stated that Mr. De La Cruz grabbed the back of her ponytail and forced her head towards him.
[27] She stated that she asked him not to push her head, stopped and got on her feet and told him that she did not want to do it anymore. He did not try to stop her from getting on her feet. She reached over to grab her backpack. Most of her belongings were back in the backpack at that point. She testified that he stated: “I’m not going to hurt you, don’t scream.”
[28] A.I. testified that she told Mr. De La Cruz that she didn’t care about the money and just wanted to go. She testified that he told her that it was not going to end like that and that she was not going to waste his time and that “something was going to happen” before she left.
[29] A.I. testified that she turned around and moved towards the stairs, intending to leave. She stated that he stopped her and pushed her down onto the stairs with his hands up by her collarbones. Her feet were on the floor with her back on the stairs. Mr. De La Cruz was on top of her with his hands on her shoulders and she stated that at one point his left hand was pushing the left side of her face as she was looking up towards the ceiling.
[30] She stated that his fingers ended up at her mouth and he pulled down on her jaw. She stated that he had a “good grip” of her bottom teeth and was pulling down. His fingers were in her mouth up to the first knuckle. She stated that she could not scream and was unable to breathe.
[31] A.I. stated that she bit down on Mr. De La Cruz’s fingers and screamed. At that point he had both hands on her neck and was laying on his left side with his weight pressing on her. She kicked one foot up, striking his face. She testified that she was feeling terrified and thought that she was going to die.
[32] A.I. stated that Mr. De La Cruz did not choke her for long. When she screamed, he backed off her and did not respond until she looked up and saw a male person peeking from behind the wall on the upper portion of the stairs. She stated that Mr. De La Cruz put his hands up and said, “it wasn’t me.” At that point A.I. grabbed her backpack and the three $20 bills which Mr. De La Cruz had moved from the washing machine to the stairs.
[33] A.I. said the person she saw on the stairs did not say anything and when she went up the stairs and out the door the person was no longer there.
[34] A.I. testified that after exiting the house she went onto the driveway and down Jackson Avenue towards King Street. She observed a van parked across the street. She approached the van and stated to the male occupant that someone had tried to rape her or sexually assault her or hurt her. The man told her that he was a police officer with the Waterloo Region Surveillance Team and observed that she was bleeding. She stated that at the time of the struggle with Mr. De La Cruz, his fingernail had scratched the inside of her lip. She stated that her jaw and lower back were hurting. Her neck also hurt and there was a scratch on her face.
[35] A.I. testified that after the occupant of the van identified himself as a police officer she was “reluctant” because she was aware that there were outstanding warrants for her arrest. She did not want help at that point because of the existence of the warrants. She knew that she was in withdrawal which she termed being “dope-sick.” She felt sluggish and did not want to go to the hospital because she feared that it would involve a long process.
[36] A.I. stated that she told the officer that she was worried about getting “dope-sick” but cooperated by going to the hospital and undergoing tests administered by the sexual assault team.
[37] A.I. testified in her examination-in-chief that at the time of trial she was incarcerated at a federal institution, finishing a two-year sentence on multiple charges, including convictions for break and enter, failure to appear, use of a stolen credit card, and other property offences and breaches. She acknowledged that she had committed theft and the use of stolen credit cards in order to finance her addiction to fentanyl.
[38] On cross-examination A.I. offered further details of her criminal convictions including breaking and entering a dental office, a church and three dwelling houses to steal cash and credit cards. She had plead guilty to using stolen credit cards. She admitted that she engaged in fraudulent activities and in misrepresentations to escape the consequences of her actions.
[39] Although she has spent significant time in the drug culture of Kitchener and had engaged in theft and fraud, A.I. stated that she had never engaged in prostitution. She committed theft and fraud in order to access illegal drugs to reduce the effects of withdrawal.
[40] A.I. testified that, although she is “not a generally dishonest person,” she has resorted to dishonesty to “keep from getting caught.”
[41] In the Spring of 2018 she was not employed but nevertheless had to come up with an average of $100 per day to satisfy her fentanyl addiction.
[42] A.I. acknowledged that while under the influence of fentanyl, she is not mentally sharp. She relies upon others to refresh her memory. Most of the time she is remembering what someone else has told her.
[43] A.I. acknowledged that, for the most part, she did not have a clear memory of the events that occurred in April 2018 - only remembering “bits and pieces” of what had happened. When testifying at trial she did not have an independent recollection of the entirety of what she was testifying to. She estimated that she was unable to remember 60 percent of what had happened and was filling in that 60 percent from “inferences.” She was “filling in the blanks” and described her feeling a “fog covering her memory.”
[44] A.I. stated that, in the early morning hours of April 21, 2018, prior to meeting Mr. De La Cruz, she had used two or three “points” or $60-$75 worth of fentanyl. This was a large quantity for her, as it represented about three-quarters of her average daily use.
[45] On cross-examination, A.I. acknowledged that when Mr. De La Cruz stated that he was “looking for a girl” she assumed that this was to “party with” and meant to engage in sexual activity. She had known for some time at that point that the term “party” was code for the provision of sexual services.
[46] She stated that it became apparent to her that sexual activity was what Mr. De La Cruz was looking for from her when he offered $100 to “party” with him. From her previous life experience, she knew that his offer of money was for sexual activity and knew that that was what she was agreeing to. She was looking to receive $100 for providing sexual services.
[47] A.I. acknowledged that the answer she gave in her examination-in-chief that she had thought “partying” involved just drinking, hanging out and doing drugs was untrue and that she had lied to, and been deliberately dishonest with, the court.
[48] A.I. stated that she did smell alcohol on Mr. De La Cruz’s breath, however she noted no signs of intoxication. When pressed, she acknowledged that the smell was coming from his person, not necessarily from his breath. She could not be certain that it did not derive from a source other than drinking, such as from alcohol having been spilled on him at the nightclub, hand sanitizer or aftershave. She just did not know.
[49] A.I. stated that, when Mr. De La Cruz asked her for condoms in the basement of the Jackson Avenue residence, he had made no threatening actions. She acknowledged that there was nothing keeping her in the basement except the promise of money and she could have left at that point.
[50] She also stated that he asked, but did not demand, that she take her clothes off and when she declined, he made no attempt to try to remove her clothes himself. He did not touch her genitals, breasts or buttocks and did not try to put his hands under her clothes.
[51] A.I. stated that when she told Mr. De La Cruz that she did not want to have unprotected vaginal sex, he did not press that issue further.
[52] A.I. acknowledged that, at the point that she was on her knees and had initiated oral sex and Mr. De La Cruz told her she was not there to waste his time, he was “essentially asking what was agreed to.”
[53] After she performed oral sex for a few seconds and stopped, she told him that she did not care about the money and stood up. She stated that he did not attempt to force her down or stop her from standing up or to walk to the stairs. She acknowledged that he did nothing to threaten her at that point.
[54] She testified that when she tried to leave, he restrained her on the stairs by grabbing her arm and then her shoulders and pushing her down onto the stairs. However, she did not know if he had tripped or fallen and acknowledged that his fall on her could have been the result of clumsiness on his part. She acknowledged that when he placed his hand on her face, he could have been bracing his fall. Although she stated that her perception was that he purposely put his hand on her face, she acknowledged that it could have been unintentional.
[55] She stated that his fingers were in her mouth for a few seconds and that the entire event on the stairs lasted 15 to 20 seconds. She acknowledged that when he told her not to scream it could have been because he realized that she had been startled.
[56] A.I. stated that, when Mr. De La Cruz pulled his hand out of her mouth and put two hands around her neck, she screamed as loud as possible. He was not compressing her neck enough to stop her from screaming. She stated that he was not squeezing hard and there was “hardly any pressure.” She acknowledged that he was not suffocating or choking her. The entire event happened very quickly and her memory of it was “fragmented.”
[57] A.I. stated that when she grabbed the $60 from the step, Mr. De La Cruz did not try to physically confine or stop her from leaving and said nothing to try to stop her from doing so.
[58] A.I. stated that, after she had spoken to the police officer in the van, she spit blood on the ground, but was unable to identify its source. She acknowledged that it could have been blood from a fall, Mr. De La Cruz’s blood from her biting his fingers, blood from a cut on her lip, or blood associated with her poor oral hygiene.
Position of the Crown
[59] Ms. Jennison for the Crown submits that Mr. De La Cruz committed a sexual assault of A.I. when he demanded that she perform oral sex on him by telling her that he did not have her there for nothing, that he was not going to waste his time, that something must happen before she could leave and by forcing her to her knees by grabbing her arm and pushing her shoulder down.
[60] Ms. Jennison for the Crown points out, on the authority of R. v. Edgar, 2016 O.J. No. 1121 (C.A.) at para. 10, that to commit a sexual assault, it is not necessary that the accused touch or even verbally threaten the complainant and that an act or gesture, without words, force or any physical contact, can constitute a threat to apply force of a sexual nature, if it intentionally creates in the other person an apprehension of imminent harm or offensive contact that affronts the person’s sexual integrity. This can constitute a sexual assault when coupled with a present ability to carry out the threat.
[61] The Crown submits that, although A.I. came to understand during her conversation with Mr. De La Cruz during their walk that he was offering her $100 for the provision of sexual activity and that she agreed to accompany him to the Jackson Avenue residence for that purpose, the nature of the sexual activity was never discussed. The Crown says that, throughout the event, there was never an actual transaction concluded between A.I. and Mr. De La Cruz.
[62] The Crown further submits that, when Mr. De La Cruz stated that “something had to happen” before she would be allowed to leave, she perceived that her only available option to be able to get out of the basement without violence or restraint was to perform oral sex on him. The Crown says that, by reason of the implied threat, she did not consent to performing oral sex on Mr. De La Cruz and he knew that she did not consent or was reckless or wilfully blind to her lack of consent.
[63] The Crown submits that Mr. De La Cruz, by stopping A.I. on the stairs, placing the weight of his body on top of her, intentionally putting his fingers in her mouth and pushing down on her jaw, committed the offence of unlawful confinement. Mr. De La Cruz’s intention to confine A.I. was evidenced by his statement moments before that “something had to happen” before she would be allowed to leave.
[64] Moreover, by jamming his hand into A.I.’s mouth and placing his hands on her neck, in the circumstances of the forced oral sex, he attempted to suffocate A.I. with the intent to commit a further sexual assault on her. The Crown says that the fact that this action lasted only seconds does not negate the fulfilment of the intention to attempt to suffocate.
[65] The Crown pointed to A.I.’s testimony that, while she was walking with Mr. De La Cruz, she could smell alcohol on his breath as they conversed. She testified that he told her that he had been at a nightclub earlier in the night. Although A.I. under cross-examination agreed that there may have been other explanations for the smell of alcohol coming from Mr. De La Cruz including that alcohol could have been spilled on him at the club, or it may have been hand sanitizer or aftershave, this was mere speculation. It would be a reasonable finding that Mr. De La Cruz’s breath smelled of alcohol because he had consumed alcohol at the club contrary to his Undertaking.
[66] Ms. Jennison submits that A.I. acknowledged to a criminal record and did not try to minimize her various offences or their seriousness. She submits further that A.I.’s record, in the circumstances of its origin and development, does not speak to her general credibility and stated that there was corroboration of several aspects of A.I.’s testimony and no evidence before the court to contest her version of events.
[67] The Crown, citing R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, submits that it does not need to disprove every possible conjecture which might be consistent with innocence. Any other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
[68] Crown points out that A.I. was very fair in responding to the suggestions by defence counsel concerning her frail concept of time and her inability to assess the passage of time but submits that her estimates of the time that each insular event took place and the time span between one event and another are of no moment to assessments of credibility or reliability in the circumstances. Although A.I. felt that her ability to recall the conversations that she had with Mr. De La Cruz was lacking in detail, it was clear in her examination-in-chief, and when challenged under cross-examination, that she nevertheless retained a very distinct and detailed memory of her interaction with him.
[69] The Crown acknowledges that A.I. agreed on cross-examination that her mind was not sharp when under the influence of fentanyl but nevertheless her evidence about the events of April 21, 2018 was very specific and her chronology and core allegations were never undermined or diminished by the defence.
[70] A.I. admitted that she lied at the preliminary inquiry by denying that she had agreed to provide sexual services for money. She agreed with the defence that she wanted to make herself look better by not admitting that she was considering offering sexual services for money and maintained that she did not lie about anything else.
[71] The Crown described A.I. as a respectful, careful and calm witness who was never discourteous or rude to the defence nor was she ever evasive. Her evidence was presented in an authentic and organic manner.
Position of the Defence
[72] Mr. Anevich for the defence points out that A.I. admitted to lying and misleading the court when she initially testified that she interpreted Mr. De La Cruz’s offer to pay her money to “party” to mean hanging out, drinking and doing drugs. She knew and understood that it meant taking money for the provision of sexual services. The defence submits that lying and misleading people is nothing new for A.I., as she has a criminal record for minor thefts, frauds and breaking and entering to finance her drug habit. She acknowledged resorting to lying to avoid being caught in her deceptions.
[73] The defence pointed out that A.I.’s initial testimony in chief that Mr. De La Cruz told her that he did not want his time wasted and pushed her to the floor, was later clarified on cross-examination to him motioning her to the floor and while forceful, this was not remarkably so. The defence pointed out that, when A.I. expressed discomfort with a sexual activity or suggestion, it ended or did not happen, and Mr. De La Cruz never forced himself on her.
[74] The defence submits that by the conclusion of her cross-examination A.I. had effectively said she was unsure if Mr. De La Cruz was drinking alcohol, she was not sexually assaulted, and she was not forcibly confined before attempting to leave the basement. What remained in dispute is the characterization of the physical altercation that took place at the stairs as she was leaving.
[75] The defence says that a likely alternative to A.I.’s characterization of the altercation on the stairs was proposed to her on cross-examination. This alternative characterization had Mr. De La Cruz bring her the $60 that he was trying to pay her with, grabbing her to give her the money and tripping, causing them both to fall on the stairs. In the ensuing fall, one of Mr. De La Cruz’s hands landed on her face and the other on the stairs. Startled and trying to get up, his hand scraped across her face and the tips of his fingers went into her mouth. She bit down instantly, causing him to remove his fingers and this may have caused him to bleed. A.I. kicked Mr. De La Cruz in the face to get away because she was startled. The defence suggests that it was all a misunderstanding and that Mr. De La Cruz never confined A.I. to the basement.
[76] The defence says that, based on the weaknesses of the Crown’s evidence, the court cannot find beyond a reasonable doubt that the accused committed any of the offences in the indictments.
[77] With respect to sexual assault, the defence points out that A.I. began the interaction by consenting to some sexual activity although the exact nature of the activity was not defined or contemplated. It says that A.I. was not forced to engage in any activity that she did not want to do. From the context of the entire encounter, A.I. made it clear to Mr. De La Cruz that she wanted to engage in some sexual contact, and she did not express a desire to totally stop until mid-oral sex. When she did express a desire to stop, it was over. When she did not want to do something, it did not happen and when she said “no” that answer stood.
[78] The defence argues that A.I. was neither credible nor reliable.
[79] With respect to her credibility, A.I. admitted that she intentionally deceived the police when giving her statement that someone had attempted to “rape” her and had “bent her over,” intentionally deceived the court at the preliminary inquiry, and the court at trial during her examination-in-chief and the first portion of her cross-examination when she maintained that she did not know what the term “party” meant and that she thought she was going to the basement to drink and do drugs. It was only upon further diligent cross-examination that she admitted that she had known from the beginning or very soon thereafter what the term “party” meant in this context and that she was heading to the Jackson Street residence to exchange sexual services for money.
[80] The defence submits that these matters show a direct intention on A.I.’s part to deceive the court and the justice system and that she is prepared to lie when it suits her. No weight can be put on her evidence on any contentious issues. Moreover, A.I.’s lie concerning what she knew and understood “to party” meant goes to the heart of her version of events and did not relate to an extraneous part of her story. The fabrication affected the entirety of her evidence. The defence says that A.I.’s deliberate misleading of the court fundamentally changed the entire context of the situation and went to the very core of her evidence respecting what the Crown was required to prove.
[81] With regard to the reliability of her evidence, the defence submits that A.I.’s memory was weak. She readily admitted that her drug use caused memory problems for her. She was unable to remember many conversations, did not remember when they happened, what the context was, or if they took place. The defence says that she was very fair in admitting this. Although this is commendable, the court cannot be confident in a finding of guilt when the basis for it is so weak.
[82] The defence submits that A.I.’s testimony is hard to parse, and what is reliable cannot be determined due to her drug use, or what is credible cannot be discerned as a result of her intentional and deliberate lies.
[83] The defence asserts that a number of alternative explanations of the physical confrontation on the stairs were presented on the cross-examination of A.I. which she accepted as possible in the circumstances. The defence submits that there was no attempt by Mr. De La Cruz at that point to re-initiate sexual contact or touching of a sexual nature. The evidence as it relates to the physical interaction on the stairs cannot factor into the assessment of whether sexual assault occurred, as it was a separate and distinct interaction. The alternative explanations include the following:
Mr. De La Cruz’s statement “Don’t scream I’m not going to hurt you” was not a threat but was an attempt to calm A.I. down;
Mr. De La Cruz could have brought the $60 to her at the stairs as payment. The only explanation for the money getting from the washer/dryer to the step, where A.I. picked it up, was that Mr. De La Cruz brought it to her. This conduct is inconsistent with an attempt to confine her on the stairs;
Mr. De La Cruz grabbed A.I.’s arm to give her the money and fell down. There are two explanations as to how the two of them ended up on the stairs, one of which is innocent. An innocent explanation of a fall is logically supported in the evidence;
when Mr. De La Cruz fell, he may have braced himself against the fall, explaining how his hand landed on her face;
Mr. De La Cruz’ hand could have ended up in her mouth when he was trying to get up;
the bite to Mr. De La Cruz’s hand occurred seconds later and caused Mr. De La Cruz to immediately remove his hands and, out of reflex, to hold her down to prevent further injury. The evidence was that A.I. was startled and it is likely that he was startled as well, including by being bitten. It is a reasonable inference that, in the circumstances, a normal reflex for a person who had been bitten may have been to briefly restrain the person who did the biting. Moreover, being able to bite Mr. De La Cruz’s hand as hard as she could shows that A.I. was able to close her mouth, and as such, it was not possible that he was holding her mouth open with sufficient force to prevent her from breathing.
[84] The defence submits that, when assessing circumstantial evidence, the trier of fact should consider “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt, citing Villaroman at paras. 36-37. Moreover, the defence argues that the law does not criminalize reflexive actions, as a reflex is insufficient to establish mens rea, citing R. v. Wolfe, 1974 CanLII 1643 (ON CA), [1974] O.J. No. 868.
[85] The defence submits that the evidence of the entire interaction on the stairs is circumstantial as it relates to what Mr. De La Cruz was thinking and doing. The interaction happened very quickly and there is a clear and likely explanation for the entire encounter that is inconsistent with guilt.
[86] The defence states that, even if A.I. is found to be credible and reliable, the alternative explanations suggested in cross-examination to which she agreed render it impossible for the Crown to establish actus reus or mens rea beyond a reasonable doubt for any of the offences.
Analysis
[87] As indicated above, I am required to apply the approach laid down in W. (D.) even in a case, such as the one at bar, where the accused did not testify but there may be evidence favourable to him led through other witnesses.
[88] As noted by Code, J. in the case of R. v. Thomas, 2012 ONSC 6653 (S.C.J.) at para. 23, W.(D.) does not describe three sequential analytical steps that a trier of fact must pass through, but rather describes three distinct findings of fact that a trier of fact can arrive at when considering all of the evidence at the end of the case. At paragraph 24 he stated as follows:
A trier of fact must look at all the evidence, when deciding whether to accept the accused's evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown's witnesses prove guilt beyond reasonable doubt and whether the accused's contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so-called "three steps" in W.D. are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering the totality of the evidence.
[89] The evidence favourable to the accused to which I must have regard in applying W.(D.) was evidence elicited from the complainant A.I. The determination of whether the Crown has proven the guilt of Mr. De La Cruz beyond a reasonable doubt depends upon a consideration of the totality of A.I.’s testimony. This involves an assessment of both her credibility or her attempts to be truthful, and her reliability or the accuracy of her testimony.
[90] The Crown and the defence are agreed that there was little that bears on the issues in the case in the evidence of the other three witnesses who testified at trial, namely retired Waterloo Region police officer David Mann, Detective Steve O’Neill of the Waterloo Region Police Service and Registered Nurse Bonnie Isaac of the Sexual Assault Treatment Centre at St. Mary’s Hospital. One area that does bear on the credibility and reliability of A.I. arises from the testimony of Detective O’Neill. He related that he was in an unmarked van when A.I. ran to his driver side window and said, “you’ve got to help me – he tried to rape me” and told him that the person who had done so had “bent her over.” He believed that she was telling him that the person she was referring to had attempted to engage in vaginal sex with her. She did not mention oral sex having been engaged in or attempted.
[91] It is not disputed by the Crown that there are problems with the evidence of A.I. and that the problems extend to both her credibility and reliability.
[92] With respect to A.I.’s credibility, the following problems are noted:
(a) her extensive criminal record in which she has either pleaded guilty or been convicted of crimes of dishonesty such as fraud, theft and the use of stolen credit cards;
(b) her acknowledgement that her criminal record demonstrates that she engages in misrepresentations and dishonesty in order to avoid responsibility;
(c) her acknowledgement, when pressed on cross-examination, that she had lied to and been deliberately dishonest with the court at the preliminary inquiry, and at trial in her examination-in-chief, and in the early part of her cross-examination, by maintaining that she did not know what “party” meant and what Mr. De La Cruz was requesting of her in exchange for money, and thought it was to hang out, drink and do drugs;
(d) her embellishment when she reported to Detective O’Neill that someone had attempted to “rape” her and had “bent her over.”
[93] I would attach little weight to the effect of A.I.’s criminal record on her general credibility. There is no question that most, if not all, of A.I.’s convictions were for property crimes perpetrated to finance her opioid addiction. I can take judicial notice that many persons addicted to opioids and other illicit drugs have criminal records for property crimes committed for the same purpose as described by A.I., namely to feed their addictions in order to stave off the debilitating effects of withdrawal. Women and men in these circumstances are entitled to equal protection of the law from sexual and other forms of abuse. For that purpose, they are not incapable of giving credible evidence to the court respecting what they experienced. In my view A.I.’s criminal record for property crimes and crimes of dishonesty does not, per se, go to her willingness to be truthful with the court with respect to the allegations in the indictments.
[94] However, A.I.’s admission that she engages in dishonesty in order to “not get caught” does go to her veracity, that is, her determination or willingness to be truthful. It demonstrates that she is willing to lie when it suits her interests to do so.
[95] The two remaining issues with A.I.’s credibility identified above relate to inconsistencies in her story concerning the charges against Mr. De La Cruz.
[96] The Ontario Court of Appeal commented at paras. 12 - 13 in R. v. M. (A.), 2014 ONCA 769 on the approach to be taken to inconsistencies in a witness’ testimony as follows:
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 she has said on other occasions, whether or not under oath: R. v. G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, (1995), [1994] S.C.C.A. No. 390 (S.C.C.). 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.
Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.
[97] I agree with Mr. Anevich that A.I.’s acknowledgement that she lied under oath demonstrates a direct intention to deceive the court and the justice system. It demonstrates a lack of regard for the oath that she took to tell the truth and undermines the confidence that the court may place on her evidence with respect to all of the contentious issues.
[98] I am unable to accept the suggestion that A.I.’s deliberate lie to the court that she did not know what “party” meant in her conversation with Mr. De La Cruz and did not realize that he was offering to pay her for sex relates to a minor, peripheral or inconsequential issue.
[99] In my view, A.I.’s lie goes to characterization of the entire interaction between her and Mr. De La Cruz. Her original story painted a picture of her encountering Mr. De La Cruz who was looking for cigarettes, walking together to the gas station to buy cigarettes and coming to believe that she was being invited to his friend’s residence to drink and do drugs and Mr. De La Cruz’s suggestion, after they had entered the basement, that they have sexual contact was unforeseen and was effectively sprung on her.
[100] The real story, which she ultimately acknowledged to be true, was that early in their conversation Mr. De La Cruz offered to pay her for sex, and she agreed, although the nature of the sexual contact remained undefined. It was her suggestion to walk past the gas station without stopping for cigarettes and go directly to the residence. Mr. De La Cruz’s suggestion to commence sexual contact in the basement soon after they arrived was not unexpected by her and she promptly searched her backpack for condoms when he suggested that she do so. His suggestion that he pay her for sexual activity and her agreement to that provides context to Mr. De La Cruz’s thought process in making suggestions for the mode of sex, first protected vaginal sex, then unprotected vaginal sex when it was determined that no condom was available, and then oral sex. It also provides context for the entire interaction between them.
[101] A.I.’s lie, if it had not been exposed on cross-examination, had the potential of giving the court a distorted view of the context for, and nature of, the interaction between her and Mr. De La Cruz.
[102] A.I.’s embellishment in reporting to Detective O’Neill when she approached his unmarked vehicle that someone had tried to “rape” her and had “bent her over” for that purpose demonstrates a carelessness with the truth about which the court should be concerned. It did not relate to a peripheral matter but affected the characterization of the act that she was complaining of in her report.
[103] The Crown points to A.I.’s demeanour during her testimony as enhancing her credibility, describing her as a respectful, careful and calm witness who was never discourteous, rude or evasive with defence counsel. The Crown submitted that she took the proceedings seriously and considered the questions asked of her appropriately before answering.
[104] Pacciocco, J. (as he then was) offered the following useful observations respecting reliance on demeanour in assessing credibility in R. v. V.(J.) 2015 ONCJ 815 (O.C.J.) at para. 127:
I must also caution myself that while I can consider the manner in which a witness offers their testimony, I am not to rely unduly on my subjective impressions of the demeanour of witnesses, since demeanour can be a notoriously unreliable predictor of the accuracy of evidence: R. v. Johnson, supra at para. 126. Where it is appropriate to consider the demeanour of a witness, inferences are confined solely to credibility, not reliability, since demeanour is, at best an indicium of the witness's beliefs about facts, and not a factor confirming the reliability of those facts: R. v. Rhayel, 2015 ONCA 377 (Ont. C.A.) at para. 85. No decision to believe a witness should be based wholly or even substantially on that witness's demeanour. When demeanour is relied upon, it is helpful to offer cogent reasons as to why this is appropriate: R. v. M. (O.), 2014 ONCA 503, [2014] O.J. No. 3210 (Ont. C.A.) at paras 32-34.
[105] Although A.I.’s overall demeanour may be described as impressive, it is noted that she displayed the same positive attributes in relation to her demeanour during her examination-in-chief in describing facts which she later acknowledged were lies.
[106] Pacciocco, J., stated as follows in V.(J.)respecting the question of reliability at para. 123:
It is essential to consider reliability separately from credibility since even an honest witness can be mistaken: R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.). Errors can occur because there are impediments in the witness's ability to see or understand events, or because the circumstances in which the event was witnessed undermine the ability of the witness to observe and understand events accurately. Errors can occur because of memory problems, or because the witness is not able to communicate their information in an accurate or dependable way.
[107] I find that there are significant difficulties with the reliability of A.I.’s testimony. She acknowledged the detrimental effect that withdrawal symptoms had on her memory, stating that some 60% of what she testified to did not come from her own recall but had come from others or by her “filling in the blanks.”
[108] She acknowledged on cross-examination that the greater the quantity of fentanyl that she consumed the greater the adverse effect was on her memory later when she began experiencing withdrawal. She also acknowledged that the amount of fentanyl that she consumed earlier in the morning was relatively large, representing three-quarters of her average daily intake, thereby potentially increasing the adverse impact on her ability to recall events.
[109] Moreover, at several crucial junctures during her examination-in-chief, when describing the events immediately leading up to the initiation of oral sex and what Mr. De La Cruz said, she professed that she could not remember or did not know, using expressions such as:
“he said something along those lines. I can’t remember exactly what was said”
“I don’t know. I can’t remember to be honest”
“I can’t remember the words used”
“I can't remember him saying that”
“I’m struggling to remember”
[110] With respect to the charge of sexual assault, there is no question that the Crown has proven that an incident of brief oral sex took place, satisfying the requirement for proof beyond a reasonable doubt that Mr. De La Cruz intentionally touched A.I. in circumstances of a sexual nature. The issue is whether the Crown has proven beyond a reasonable doubt that A.I. did not consent to the sexual touching in question and that Mr. De La Cruz knew that A.I. did not consent.
[111] In Nyznik, Molloy, J. observed at para.198:
It is possible to make a finding of sexual assault based solely on the uncorroborated evidence of one witness, usually the complainant. Indeed, it is typically the case that there will be no other witnesses, and often the case that there will be no corroboration on the material points. However, where there are frailties in the complainant's evidence, as is the case here, it is useful to look for corroboration. In the case before me, the complainant's evidence is too fraught with problems to stand alone.
[112] She went on at para. 199:
I return to the fundamental legal principles I outlined at the outset. The defendants are charged with an offence under the Criminal Code. The question is not whether they behaved admirably, or even ethically. The question is whether I am satisfied beyond a reasonable doubt that the Crown has discharged its onus of proving that the complainant did not consent to the sexual activity at issue or that she lacked the capacity to do so. That depends entirely on the reliability and credibility of the complainant, both of which are problematic. I cannot make a finding of guilt based on evidence such as this. Based on the complainant's evidence, I cannot be sure about what happened in that hotel room. It is simply not safe to convict.
[113] Similarly, in the case at bar, given the serious issues with both A.I.’s credibility and reliability on the core issues as described above, I find that the charge of sexual assault does not rest on a sufficient foundation to satisfy the requirement of proof beyond a reasonable doubt, which is closer to certainty than it is to a balance of probabilities (see R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 (S.C.C.)).
[114] With respect to the charge of unlawful confinement, the Crown must prove both the actus reas and the mens rea beyond a reasonable doubt; the latter being an intent on the part of Mr. De La Cruz, during the altercation on the stairs, to deprive A.I. of liberty to move from place to place. I find that this intention has not been proven to have been explicitly expressed by Mr. De La Cruz. A.I. testified that he said that “something had to happen” and that she wasn’t there to “waste his time” earlier before she discontinued the oral sex, gathered her knapsack and moved to the stairs. There is no clear evidence that Mr. De La Cruz said anything to A.I. after he moved to the stairs and came in physical contact with her. Thus, the mental element of the offence must be capable of being inferred from Mr. De La Cruz’s actions and the other circumstances.
[115] The Quebec Court of Appeal in the case of R. v. Proulx, 2016 QCCA 1425 stated as follows at paras.79-81, citing the Supreme Court of Canada’s decision in R. v. Villaroman, 2016 SCC 33,
the recent judgment in R. v. Villaroman highlights the well-founded fear that a trier of fact may draw hasty conclusions in cases based on circumstantial evidence, the danger being that the trier of fact may "fill in the blanks".
I note the following teachings from Villaroman, which I repeat here almost word for word:
• The judge must consider the range of reasonable inferences that can be drawn from the evidence. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt (para. 35);
• Reasonable doubt may be based on the evidence or the absence of evidence; thus, a gap in the evidence may result in inferences other than guilt, but those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense (para. 36);
• The trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt; however, the Crown need not negative every conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused; other plausible theories or reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation (para. 37);
• The basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty (para. 38).
For the judge to find the appellant guilty, he therefore had to reach the conclusion, after analyzing all the evidence, notably including the appellant's testimony, that the evidence left no room for reasonable doubt.
[116] I find that the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that Mr. De La Cruz is guilty of unlawful confinement. In reaching the conclusion that there is reasonable doubt respecting Mr. De La Cruz’s intention, I have taken into consideration all of the circumstances and, in particular, A.I.’s acknowledgement that Mr. De La Cruz may have fallen on her on the stairs due to clumsiness, the fact that she picked up the $60 from the stairs before exiting the basement, from which an inference may be drawn that his intent in following her to the stairs was not to prevent her from leaving but to give the money to her before she left, and the difficulties respecting the reliability of A.I.’s testimony. I do not find the inferences pointing away from the accused’s guilt to be irrational, fanciful, mere conjecture or speculation.
[117] With reference to the charge that Mr. De La Cruz attempted to suffocate A.I. with the intent to commit the indictable offence of sexual assault, the Crown must prove beyond a reasonable doubt both that he attempted to suffocate A.I. on the stairs and that it was with the intent to overcome resistance from her to enable him to carry out a sexual assault against her. For the same reasons as stated above in reference to the charge of unlawful confinement, I find that the circumstantial evidence is reasonably capable of supporting an inference other than that Mr. De La Cruz is guilty of this offence. A.I. acknowledged that when Mr. De La Cruz placed his hand on her face, he could have been bracing his fall and that it could have been unintentional. She also acknowledged that he was not compressing her neck enough to stop her from screaming, was not squeezing hard, that there was “hardly any pressure,” that he was not suffocating or choking her, and that her memory of the whole event was “fragmented.”
[118] Finally, I find that the Crown’s evidence that Mr. De La Cruz consumed alcohol in breach of his undertaking does not rest on a sufficiently strong foundation to support a finding of guilt beyond a reasonable doubt. The evidence on this count is entirely circumstantial. No witness testified to having observed Mr. De La Cruz consume alcohol. A.I. acknowledged that she did not necessarily detect the smell of alcohol from Mr. De La Cruz’s breath, but as emanating from his person, the source of which may have been something other than his having consumed alcohol. A.I. testified that he displayed no signs of intoxication. Although A.I. testified that Mr. De La Cruz told her that he had been at a nightclub the previous evening, she did not quote him as having acknowledged drinking alcohol there. I find, in consideration of all the evidence, that the Crown has failed to prove that no room is left for reasonable doubt.
Disposition
[119] Based on the foregoing, I find the accused not guilty of all four counts in the indictments.
D.A. Broad, J.
Released: November 12, 2020