COURT FILE NO.: 17-RA19529
DATE: 20201216
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
D. T.
Counsel:
Stephen Albers, for the Crown
Natasha J. Calvinho, for the accused
HEARD: September 28 – October 2, October 5 – 9, October 14, 15, and 28, 2020
Restriction on Publication
An Order was made under section 486.4 of the Criminal Code of Canada that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.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
[1] On consent of the parties, because of the COVID-19 pandemic, this trial proceeded entirely as a virtual trial.
[2] The accused is charged with three Criminal Code offences: sexual assault contrary to s. 271, sexual exploitation contrary to s. 153 (1), and forcible confinement contrary to s. 279 (2).
[3] The complainant was a 17-year-old young woman at the time of the alleged offences. She was an athlete, practicing a sport she loved at one of its highest levels for a person of her age in the City of Ottawa. In order to limit information that could identify the complainant, these reasons avoid naming witnesses and make no reference to which sport.
[4] The accused is 65 years old. He also loves that sport. He played the sport as a young person and is extremely knowledgeable about it. At the time of the offences, the accused volunteered a significant amount of time and energy towards coaching the sport and with its local management. Although he never coached the complainant’s team, he took an early interest in her efforts, particularly at trying to help her obtain a scholarship, hopefully to an American college. As such, like he had done with other players, the accused helped the complainant in many ways. He helped her financially by paying for some of her sport’s related expenses and he gave generously of his time by assisting with transportation, training programs, and private coaching. For example, he helped the complainant with weight training, cardio training, and training more specific to her sport. He also drove her to training facilities, to practices, to out of town tournaments, and he regularly paid a generous portion of the complainant’s expenses to enroll in teams and tournaments and for related travels.
[5] It is not disputed by the Crown that the accused was dedicated to this sport. That for many years, in the City of Ottawa, the accused played an important role and was an important positive presence in this sport. He helped many girls and young women excel.
[6] However, the Crown alleges that on August 1, 2017, the accused forcibly confined, sexually assaulted, and sexually exploited the complainant when he gave the complainant a full-body massage in his home.
[7] The complainant presented as an articulate, responsive, and forthcoming witness. She was generally unshaken in cross-examination. With one exception relating to a small group of text messages that somehow did not appear on the copy of her phone (I will come back to this), she appeared to make reasonable concessions throughout her testimony and told a sad and believable story.
[8] The complainant testified that she did not know that training on August 1 was to include a full-body massage. She said that she understood that they were driving to a training exercise when the accused stopped at his home to get something. It was a very hot day and she said that, at his insistence, she went inside the accused’s home while waiting for him. She said that once inside, the accused asked for her help to move something - she went upstairs to help him. She said that once upstairs, the accused asked her to change into a towel so that he could give her a recovery massage. She testified that she told the accused that she was not comfortable with a massage. She also testified that the accused told her that this is what she had to do if she wanted a scholarship. She felt she needed to do everything required to excel, and so she went into the bathroom to change. She said that she came out in her underwear, but the accused insisted that she only needed to be in a towel, that top athletes had massages to excel. She went back into the bathroom and came out wearing just a towel. She said that the accused had changed into a white tank top, a headband (like a sweatband), basketball shorts, and that he had massage oil.
[9] The complainant testified that she laid down on her back with a towel over her and the accused started massaging her foot and went up her calf and leg. As he worked his way up, she said “what are you doing?”. She said that he explained that the massage was to enhance her lymphatic system. She said that he gave her a blindfold (a black Air Canada sleep mask) and she placed it over her eyes. She said that the accused removed the towel completely and started rubbing her thigh, spending more time on the inner part of her thigh. She said that she was scared and not sure if she could trust him. She said that the accused then made his way towards her vaginal area. She said that the accused proceeded to insert his finger into her vagina and groped her breasts. She said that he sat beside her and patted her face and shoulders, and that at some point, he straddled her and that she could then momentarily feel his genitals. She said that he asked her to turn over, and she did, and that much of the time was then spent massaging her buttocks area. She said that she was completely naked, not even a towel. She said that she was very uncomfortable, and sort of paralyzed. She said that as the accused left the room, she lifted the blindfold and saw that he was just wearing white-beige underwear. She said that she grabbed her clothing, ran to the bathroom, locked herself in and changed right away. She said that he came to the door and told her that she should be relaxing. She said that she made excuses to go home and he agreed. She helped him with the bed, lifting it to put back the wheel stops and gave him the towels. She said that she then hurried down the stairs only to realize that she was locked in: the lock to the main entrance door of the accused’s home was equipped with a lock of the type that requires a key on the inside as opposed to a thumb-turn lock. She said that she panicked, shook and kicked the door. She said that the accused laughed and said sarcastically “you’re locked in”. She said that he then explained that a key was needed to operate the lock. He grabbed a key from a bowl on a nearby table and unlocked the door.
[10] The complainant testified that the accused was not grunting or making any noise as he was massaging her. She said that he was making no noise, “he was just like out of breath”.
[11] The accused testified. He was generally a responsive witness and he too was not seriously shaken on cross-examination. However, his story is difficult to accept. To believe the accused you have to believe that the accused, a 60-year-old-plus male coach, despite warnings by his colleagues about driving or spending time alone coaching young female players, took the complainant to his home at a time when they were alone in his home and gave her a full body massage, while she lay naked under towels, to help her with her aches and pains in order to facilitate her cardio workouts and better her chance at an American scholarship.
[12] The accused stated that he gave the complainant a full body massage for recovery and treatment reasons. He stated that his touching of the complainant at his home on August 1, while giving her a massage, was with her express knowledge and consent, and was for recovery and treatment purposes. He argues that it was not sexual or exploitive and that it was not done for a sexual purpose.
[13] The accused testified that the plan on August 1 was to do recovery work and then to practice the sport; as previously stated in a text message to the complainant. He explained that she was still complaining of aches and pains after the last tournaments and that in order to work hard on her cardio, they needed to flush out her muscles. He said that shortly after he picked up the complainant at her home at about 12:15, he told her that they would be going to his place to start with a recovery massage and said that she had no objection. He said that he explained what recovery massages were - that he would give her a full body and lymphatic massage.
[14] The accused stated that they arrived at his nearby home before 12:30 and went inside. He said that the complainant then asked him if she could take a shower first. He said that while she took a shower, he went downstairs to change into his shorts and a T-shirt. He said that he showed the complainant where to lay down and that she first lay on her stomach. He said that he covered her with towels and started massaging her right foot. Next, he said that he worked on her calf, hamstring, and on the outside of her hip. He said that he massaged the left leg the same way. He said that she was on her cell phone the whole time she was lying on her stomach. He then asked her to turn over and he said that he stepped out of the room while she did that. He proceeded to massage her legs again from the other side, then her knees, quadriceps, hips from the other direction, moving the towels incrementally and worked on the shoulder part of her body. He said that when she turned on her back, she could not easily use her cell phone, so he asked her if she wanted a sleeping mask and she said yes. He said that she put on the sleeping mask and he massaged her shoulders. Then he told her they were done and left for her to get ready. Five minutes later, he came back into the room to tell the complainant that they could leave but said that there was no response. He said that he went over to check her and noticed that she was sleeping. He said that he thereafter checked on her approximately every 20 minutes, but she kept on sleeping. He said that at about 3:00 he decided to wake her up and that they exited his home at about 3:15.
[15] He stated that he worked on her back to the top of her glute and on her hips on the side of the glute muscle. He denied massaging her breasts. He denied being in proximity to her vagina. He denied touching or penetrating her vagina with his fingers, saying that “this is ridiculous, where would I have been standing to do that?” He admitted that on occasions, he was kneeling on the bed but denied straddling the complainant or jumping over her. He denied touching her with his penis or genital.
[16] He said that after the massage, the complainant slept for almost two hours and that the massage lasted about one hour at most. He said that he eventually woke her up at around 3:00 and gave her time to dress. He said that she helped him put back the roller stops under the legs of the bed. He said that he had removed these to move the bed around during the massage. He said that the complainant came downstairs and told him that she could not open the door. He said that he showed her how, and that she went to the car. He denied that she was locked in.
Issue
[17] The critical issue in this case is whether the Crown has proven beyond a reasonable doubt that the accused committed the offences charged.
Legal Principles
[18] Accused are presumed innocent and the burden of proving their guilt beyond a reasonable doubt is always on the Crown.
[19] Proof 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.
[20] To 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.
[21] In R. v. W.(D), 1991 CanLII 93 (SCC), [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. Although W.(D) addressed a jury charge on reasonable doubt, and although its applicability depends on the context, it provides a helpful map to the analysis of reasonable doubt:
a) First, in the context of all the evidence, consider whether you believe the accused. If you do, you must acquit (unless of course the evidence of the accused does not negate criminal liability).
b) If you disbelieve the accused, you must next 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.
c) Finally, even if you disbelieve the evidence of the accused, and even if 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. Indeed, even if the accused’s evidence does not leave you with a reasonable doubt, you must finally 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, not the details of what actually happened. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt. However, the evidence does not have to answer every question raised in the case, but only those matters essential to prove the crime. The onus is always on the Crown to prove the guilt of the accused beyond a reasonable doubt.
[22] 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 analytical route is 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 an 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, 362 C.C.C. (3d) 4 at paras. 49-56).
[23] It 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 or disbelief a witness, but still be left with a reasonable doubt considering all the evidence. Further, when considering the testimony of a witness, a court can accept all, some, or none of a witness’ testimony. The Crown is not required to point to something inherently contradictory or demonstrably false in the evidence of the accused for his or her evidence to be rejected. Similarly, frailties and inconsistencies in a complainant’s evidence do not necessarily mean that his or her evidence should be rejected. (See R. v. J.J.R.D., (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.).
[24] What the above means is that a trial judge cannot treat the criminal standard of proof, of proof beyond a reasonable doubt, as a credibility contest. This means that a judge cannot conclude that something has been proven beyond a reasonable doubt simply because the judge prefers the evidence of the Crown witnesses. However, this does not mean that it is inappropriate for a trial judge to compare the evidence of the accused with that of the complainant or other witness. To the contrary, it is important for the trial judge to assess the evidence of the accused in the context of all the evidence given at trial. (See for example R. v. Hull, 2006 CanLII 26572, at paras. 5 and 6)
[25] Indeed, 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 (1976), 1977 CanLII 1930 (ON CA), 33 C.C.C. (2d) 209 (Ont. C.A.), at para. 7).
[26] As 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.”
[27] Our law has developed 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.
[28] However, 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 SCC 17, 1 S.C.R. 628). A judge may accept the evidence of a complainant despite its potential frailties and may disbelieve the evidence of the accused even if the judge finds no specific defect with the accused’s evidence (see R. v. J.J.R.D., at para. 48).
[29] In a case like this, my assessments of the credibility and reliability of the witnesses’ evidence are particularly important. Here, this is made particularly difficult because all witnesses, including the complainant and the accused, testified well.
[30] Credibility relates to a witness’ 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.
[31] Caution is required 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), 2001 CanLII 8606 (ON CA), 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), 1993 CanLII 3387 (ON CA), 16 O.R. (3d) 295 (C.A.) at para. 55).
[32] More 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). However, defects in the evidence or in the manner of testifying are not always present, yet a judge may nonetheless reject the evidence of a witness and accept the conflicting evidence of another. Here, all witnesses answered questions well; none argued with counsel or offered too many unresponsive answers. Here, as well, although there are some potential contradictions and inconsistencies, there are not many.
[33] Demeanour evidence is however 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 CanLII 26572 and R. v. Boyce, 2005 CarswellOnt 4979. 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’ 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, 334 C.C.C. (3d) 534 at paras. 44 and 45). 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 SCC 72, 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. Even a positive demeanour can be difficult to assess.
[34] Myths and stereotypical thinking must be avoided. The Court of Appeal warns us in R. v. Cepic, 2019 ONCA 541, 376 C.C.C. (3d) 286 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 risk 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).
Analysis
[35] The accused denied the allegations made against him and testified well. He provided a seemingly clear, articulate, and generally unblemished narrative. All witnesses, including the complainant, said that the accused is a kind man who gave extremely generously of his time, money, and energy to help players and other coaches in the sport he loved so much.
[36] Nonetheless, when I consider his evidence in the context of all the evidence, I do not believe the evidence of the accused, and moreover, his evidence does not leave me with a reasonable doubt about his guilt.
[37] I arrive at these conclusions on the first and second part of the W.(D.) analysis for the following reasons:
• The contradictions between what the accused and other witnesses said they did in the past for other injured players, how the accused said he handled past injuries on the complainant and on other players, and by comparison what the accused did here when he apparently decided that the complainant needed a full body massage are important and render some of the accused’s version of events surrounding the massage not believable.
• Indeed, the accused had no certification and had limited experience with massage therapy, recovery massages or lymphatic massages. He read books, watched videos, and observed a team kinesiologist give massages to some of the players (never in such a private setting, and never above their shorts’ line said the kinesiologist). The accused testified that if a player had a minor injury, he would apply ice or bandages. He said that if an injury was more serious, their therapist would send a report and the parents could follow up with a professional, as they wished. He said that for serious injuries, he would tell players that they should see someone and said that he would not treat significant injuries himself. He could not remember ever recommending physiotherapy for a player. He said that parents would take their daughter to a doctor and the doctor would recommend physiotherapy, if required. He said that it is up to the players and the parents to decide what medical attention a player needs or does not need. He could not recall ever telling a player to go for a professional massage. He did not recommend to the complainant that she go for a professional massage - he said that “he never thought about that, to be honest” and that “I figured I could do it myself”. And previously, he had only massaged the complainant’s legs and feet a few times. Yet, he testified that, on August 1, 2017, for treatment purposes, he decided, despite having no formal training in massage, being warned in the past by his colleagues to avoid being alone with players, and not consulting her parents (he said that he did not think of asking her parents), that the complainant needed a full body massage in order to recover from her aches and pain and perform better with cardio conditioning.
• The accused was not convincing when he testified that on August 1, 2017, the complainant had injuries, including to her groin, to such an extent that she required the massage he decided to give her in order to improve her cardio workouts. Although the complainant agreed that she had been working hard that summer and had issues with her feet and calves, the accused’s evidence about the extent of the complainant’s aches and pains and how massages were needed to improve her game sounded contrived to fit his narrative.
• Moreover, the accused had difficulty comparing what he did to the complainant on August 1, 2017, a full body massage, to prior recovery work or massages that he and others had administered to the complainant and other players. The accused said that he introduced recovery work; explaining that after an injury there should be recovery. He said that players would go for physiotherapy if required. He explained that recovery massages can include many things and gave examples of what he previously did with other players, including an example with knee problems. However, the accused stumbled slightly through this evidence and his explanations sounded hollow because the examples that he gave of prior treatments and earlier massages to other athletes or to the complainant were nothing like the full body massage that he gave to the complainant on August 1.
• As well, the accused demonstrated a slight tendency to exaggerate in the interest of projecting a positive image.
• For example, the accused said that, at the time, he saw nothing wrong with a 65-year-old male coach giving a 17-year-old young woman that he trained, a full body massage while she lay naked under towels on a bed at his home with no one else present and without any consultation with her parents. This is difficult to believe because it contradicts his earlier evidence about how he and team management usually handled injured players, and because it also contradicts the evidence of other witnesses which, at a minimum, implied that the accused should have known, on August 1, 2017, that his conduct that day was at the very least not correct. When asked in cross-examination how he would have reacted if a coach had done the same to his daughter when she was at that age, he responded that the question was too hypothetical to answer.
• The accused initially testified that he had asked for the complainant’s consent before moving to different body parts during the massage he gave her on August 1. However, he also said that there was no conversation for most of the massage, that they were silent, and later, he said that he gave the complainant a sleeping mask so she could sleep if she wanted. He said that he was concentrating on the massage, and she was concentrating on her texts and her phone. When challenged about the apparent contradiction, he had difficulty providing a satisfactory answer that reconciled the above and said that he had asked for consent in the car while on their way to his home and that she had said yes. He said that he told the complainant at the outset of the massage to let him know if she was uncomfortable at any point and he would stop; he said that she never asked him to stop.
• Another example of a tendency to exaggerate is the accused’s refusal to admit, when questioned by Crown counsel, the objective proximity between the hip of the complainant, which he admitted to massaging on the outside, and her vagina, which he denied touching (he also denied touching her breasts or her buttocks).
• The accused also had difficulty using simple words to describe compromising parts of the complainant’s anatomy, preferring instead to use the name of muscles. He did this when referring to body parts that he massaged or did not massage; for example, preferring to refer to her glute, hamstring or quadricep.
• In addition, the accused’s explanation about why, on August 10, 2017, shortly after his best friend had confronted him about the alleged events, he so abruptly and completely left the sport he loved and why he then told his best friend “yes, obviously I’m crazy”, was not convincing. By way of background to understand this last point, the accused’s best friend (also quite involved in the sport) learned on August 10, 2017, that a player was complaining that the accused had abused her during a massage. This best friend immediately called the accused and met him shortly after. He asked the accused whether it was true that the accused took a player to his home for a recovery massage and whether the accused was “fucking crazy”. The accused said yes to both questions. Shortly after, the best friend called the accused, and asked him to step away from everything related to the sport. The accused agreed and has not been involved in the sport since.
• I find it difficult to believe the accused’s explanation as to why he told his best friend “yes, obviously I’m crazy”, when confronted with what he had done with the complainant on August 1, 2017. The accused said that he then realized that his prior assessment of the situation had been wrong because his conduct visibly upset his best friend. He said that he saw from his friend’s body language how upset his friend was and then realized that it would have been better if he had not brought the complainant to his home and given her a full body massage. He said that this is why he told his friend “yes, obviously I’m crazy” – because it made his friend so upset.
• The accused loved the sport, it was the purpose of his life. He spent three to five hours each day volunteering his time and energy to this sport. Yet, he suddenly left it all one day when confronted by his friend about what had occurred on August 1, 2017. The accused’s explanation about why he abruptly and completely left the sport he loved – that he was sorry he disappointed his best friend and because his friend was so upset - was difficult to accept because days earlier, he had apparently felt that he was doing nothing wrong when he gave the complainant a massage and because in the past, the accused rarely accepted criticism from his peers about spending too much time alone with players.
• As well, the complainant had an excellent recollection of events on August 1, 2017. She testified candidly about what she said happened, was generally unshaken in cross-examination, and described a believable narrative.
[38] As indicated above in the analysis section, even if I disbelieve the evidence of the accused and even if I am 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, I must still determine whether the totality of the evidence has proven the guilt of the accused beyond a reasonable doubt – whether, on all the evidence, the Crown has proven each element of the offences charged beyond a reasonable doubt.
[39] Here, when I conduct the above stated final analysis, I am left with a reasonable doubt about the elements of the three offences charged.
[40] The timeline or the duration of the massage is difficult to reconcile with the complainant’s evidence. Accepting the complainant’s evidence would require the massage to have lasted well over two hours. I find that improbable. Contrary to what is argued by the Crown, this is not a minor point that can easily be otherwise explained without significantly impacting the complainant’s narrative of events.
[41] The complainant testified that on August 1, the accused picked her up at her home at about noon. She said that they arrived at his home not long after (driving time between the two residences was about 10 to 15 minutes). She denied taking a shower and said that she changed out of her clothing prior to the massage. According to her evidence, the massage could have started around 12:30. The complainant also said that she left the accused’s home at about 3:30 or 4:00. Therefore, according to the complainant’s version of events, the massage could have lasted over 2.5 hours, which seems quite a long massage.
[42] The accused’s testimony shortened the timeline slightly. This, if you consider his argument that the complainant’s timeline is impossible – that he could not have massaged her for this long, was slightly against his interests.
[43] In any event, the accused said that he started the massage at about 12:45 and that he massaged the complainant for one hour at most. He said that after the massage, when he went back into the room to get the complainant, he noticed that she had fallen asleep. He said that, thereafter, he checked on her every 20 minutes or so until he finally woke her up at about 3:00. He said that they exited his house at about 3:15. According to the timeline of the accused, if the complainant did not fall asleep, the massage would have lasted about two hours. This again seems quite long for a massage.
[44] The accused said that he could not physically have massaged the complainant for two hours, that it would be impossible for him to have massaged her so long. He is tall and could not have been bent over for so long massaging her (an ordinary bed was used). He says and argues that she fell asleep after the massage.
[45] Memory is often imprecise, but here we have a receipt from Uber which confirms some of the timeline. As it turns out, the accused’s car would not start after the massage. Some time was spent by the accused unsuccessfully trying to start it. A decision was made to walk to a nearby car rental company and the two stopped at a convenience store along the way. A rental car was unavailable, and the accused called an Uber. The receipt from Uber confirms that the two were picked up at the car rental at 4:10 that afternoon. Allowing a reasonable amount of time for the accused to try to get his car started and for them to walk to the nearby convenience store and to the nearby car rental agency, we see that they probably exited the accused’s home at about 3:30.
[46] From the above timeline, if you accept the complainant’s version of events, the massage lasted slightly more than two hours, which seems improbable. On the other hand, if you consider the accused’s version of events, that the complainant fell asleep after the massage, then the timeline appears more probable.
[47] However, the complainant testified that she was really uncomfortable and could not move or say anything during the massage, that she was paralyzed, and that right after the massage, she grabbed her clothing, ran to the bathroom, locked herself in, changed right away, ran downstairs, and panicked when she realized that she was locked in. It is difficult to reconcile this evidence with a person being sufficiently relaxed to fall asleep after a massage. The timeline is therefore perplexing.
[48] Another unexplained issue with the evidence relates to small differences between the text messages exchanged between the complainant and the accused on August 2, 2017. The Crown/ the disclosed version of the text messages was obtained from screenshots of the complainant’s phone. During the accused’s evidence, the accused said that he discovered that the Crown/the disclosed version of the text messages is missing some words from the version allegedly found on his phone. The version of the text messages from the accused’s phone apparently contains the added words: “in 30”, “U can start now”, “At your order”, “Pls and thank u”, “Aye aye”, “U spelt you’re welcome wrong”, and “come out”.
[49] From the Crown/the disclosed version of the text messages of the morning of August 2, 2017, one might think that the complainant did not accept the accused invitation to go training on August 2, 2017, because her legs were sore. From the accused’s version, one might think that she went training because she said that she would be ready “in 30”, she told the accused that he could “start now” or leave his home, and the accused told her to “come out” when he arrived at her home. Nothing turns on whether the complainant went training on August 2, 2017 – to think otherwise could constitute impermissible myth reasoning and could be an error of law. What is perplexing is not the complainant’s behaviour on August 2, which means nothing, but the fact that the two versions of these text messages (that from the Crown/the disclosed version and that from the accused) are different and the fact that the Crown/the disclosed version comes from screenshots taken of the complainant’s phone.
[50] The complainant was recalled to-explain this apparent difference in the text messages allegedly discovered mid-trial by the accused. As when she previously attended, the complainant was smiling and friendly during her testimony. In chief, she said that she did not remember meeting with the accused after the events of August 1 and before August 9, when they met at Tim Hortons to discuss whether she would attend an important showcase later in August. She did not remember whether she provided screenshots of her text messages with the accused to the police on the day of her police interview on August 17, 2017, or whether she gave her phone to the police who made their own copy. This has not been established.
[51] During her cross-examination, she confirmed that she brought her phone with her to the August 17, 2017 police interview. She did not remember whether she gave her phone to the police, whether she gave screenshots to the police, or whether the police took screenshots of her phone’s text messages with the accused. She no longer has this phone, nor the original text messages. She agreed that the Crown/the disclosed version of these text messages (Exhibit 4) is probably from screenshots of her phone. She could not remember who took the screenshots of her phone. She testified that she remembers the text messages exchange with the accused on August 2, as per what is indicated in the Crown/the disclosure version (Exhibit 4). She testified that she did not see the accused on August 2. When she was shown the different versions of these text messages (that of the accused - Exhibit 5) apparently found on the accused’s phone, she said that she does not remember this conversation and that she did not delete any of her text messages with the accused. She said that these different texts found on Exhibit 5 did not occur, that this conversation did not take place, and that these missing texts found on Exhibit 5 are not her text messages. She said this quite convincingly, just like she said everything else in this trial.
[52] The Crown argues that Exhibit 5 contains non-authenticated text messages and that little can be made of these because it was not determined as a matter of fact that those text messages did in fact occur. The Crown is correct that this was not determined. However, I note that neither Exhibit 4 or Exhibit 5 was convincingly authenticated, and that the onus to prove guilt beyond a reasonable doubt is always on the Crown. I am left with two different versions of the same text messages, neither version convincingly authenticated, but the version found at Exhibit 5, which is that of the accused, seems to read better, while Exhibit 4 seems to end abruptly at “Ok”. This again is perplexing.
[53] During her police statement and at trial, the complainant said that after the massage, as the accused was leaving the room, she lifted the sleeping mask and saw that the accused was now just wearing white/beige underwear. She said that she grabbed her clothing, ran to the bathroom, locked herself in and changed right away. She thought that she was able to push the bathroom door lock in for it to lock but she does not know whether it pushed to lock. During her cross-examination, she said that she does not remember if she locked the door, but she closed it and was standing behind the door. She described it as a scary experience, that she wanted to get dressed and go home as quickly as possible.
[54] The accused’s former spouse testified convincingly, by explaining precisely how she remembered, that at the time the accused only wore black underwear. As well, she persuasively explained that the bathroom doors did not lock. I accept her evidence on these two points because she offered convincing explanations why she remembered black as the only colour and because her evidence on the absence of a lock on the bathroom doors was compelling. This evidence contradicts the complainant’s earlier version of events. Although both might be perceived as minor unrelated details, they tended to support the complainant’s narrative.
[55] The complainant’s stated lack of knowledge of recovery massages was difficult to accept. The complainant testified that she felt uncomfortable when the accused previously massaged her (in a much less intrusive manner), and told him so, and that he said this is what players do to get better, that it is the norm for top level players. She said that massages just happened a few times before, less than 10, and that some occurred in hotel rooms when they travelled for tournaments. As an example, she said that in Montreal, he massaged her foot in a room when she had foot cramps. However, she testified that she did not know that recovery meant massages. Although he had given her a recovery massage on her foot before, she testified that she did not understand that recovery included massage work. I found that part of her evidence difficult to believe because recovery was a term previously employed by the accused in association with other recovery techniques and also with previous massages. This is a minor point, but again she appeared to have said this at trial to support her narrative.
[56] As a result, when I consider all of the above, I am left with a reasonable doubt about the sexual nature and sexual purpose of the massage.
[57] I note that I do not accept the accused’s argument that the complainant fabricated these allegations to get back at the accused because the complainant seemed to understand and agree that she was not ready to go to the showcase later in August 2017.
[58] With regards to the count of forcible confinement, the complainant testified that she was initially unable to open the door because you needed a key to open it. However, she agreed that the accused was joking when he said “there is no escape”- she agreed that he was laughing when he said it, and she confirmed that he then immediately opened the door.
[59] The accused’s former spouse testified that she had the lock installed on the main entrance door as a security measure recommended by her brother. She said that the key is usually in a small bowl on a nearby table. In cross-examination, she confirmed that, from a security perspective, there is no point in leaving the key in the lock.
[60] As a result, I am left with a reasonable doubt on whether the confinement was for a significant period of time and whether the accused intended to confine the complainant.
Conclusion
[61] The accused is therefore found not guilty of all three counts.
Mr. Justice Pierre E. Roger
Released: December 16, 2020
COURT FILE NO.: 17-RA19529
DATE: 20201216
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
D. T.
Accused
REASONS FOR decision
Roger J.
Released: December 16, 2020