COURT FILE NO.: 18-RA19548
DATE: 20210208
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
A.S.
Vanessa Stewart, for the Crown
Meaghan Thomas and Jacob Legault, for the accused
HEARD: January 13, 14, 15, and 18, 2021
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486.4 of the Criminal Code of Canada that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.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, this trial proceeded as a virtual trial because of the COVID-19 pandemic.
[2] The accused is charged with two Criminal Code offences: sexual assault contrary to s. 271 and sexual exploitation contrary to s. 153 (1). The offences cover the period from August 1998 to September 2001.
[3] The complainant was 14 to 17 years old at the time of the alleged offences. He had met the accused and her spouse when he was placed in a group home they managed. Later, he became their only foster child and it is then that the complainant says that he was sexually abused by each of his foster parents, without the other knowing.
[4] The complainant testified that the accused was a young foster mother with whom he developed a friendship that progressed into a physical relationship. He said that the first incident of sexual abuse occurred while he was giving the accused a back rub, which admittedly was a common occurrence. This massage took place on her bed. They started kissing which led to cunnilingus. He said that they did not have intercourse on that occasion but that later they did. He said that they had sexual relations, including intercourse, on many occasions. He said that their relationship was, in his mind, “a full-blown girlfriend-boyfriend relationship”.
[5] The accused testified and denied the complainant’s allegations. She admitted that she developed a bond with the complainant, saying that he was like a younger brother to her. She admitted that she suffered from back pain and that she frequently asked for back rubs, usually while seated on the couch and while watching television. She said that the complainant occasionally gave her back rubs. However, she said that such back rubs were appropriate and over clothing, and never on her bed. She steadfastly denied any sexual impropriety with the complainant.
Issue
[6] The issue in this case is whether the Crown has proven beyond a reasonable doubt that the accused committed the offences charged.
Legal Principles
[7] Accused are presumed innocent and the burden of proving their guilt beyond a reasonable doubt always lies on the Crown.
[8] 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.
[9] To be convinced beyond a reasonable doubt means to be certain that an offence has been made out. A finding of not guilty is required where the evidence only manages to convince the decision-maker that an offence probably or likely occurred.
[10] In R. v. W.(D), 1991 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. 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.
[11] The functional analysis outlined in 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). 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).
[12] 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 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.).
[13] 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. 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 witnesses. 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 26572, at paras. 5 and 6)
[14] 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 1930 (ON CA), 33 C.C.C. (2d) 209 (Ont. C.A.), at para. 7).
[15] 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.”
[16] 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.
[17] 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).
[18] I also point out that there is no onus on an accused to prove a lack of motive for a witness or complainant to lie. People may accuse others of committing a crime for unknown or no reasons and it therefore does not necessarily follow that because there is no apparent reason for a motive to lie, a witness must be telling the truth (R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at paras. 22 – 23).
[19] In a case like this, the assessments of the credibility and reliability of the witnesses’ evidence are particularly important.
[20] 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.
[21] 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 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 3387 (ON CA), 16 O.R. (3d) 295 (C.A.) at para. 55).
[22] More valuable means of assessing witnesses are to consider the consistency of what they have said on a material matter (internal and external contradictions) and improbabilities (exaggerations or illogical propositions). However, inconsistencies vary in their nature and importance; some are minor or concern peripheral subjects, others are more important or involve a material issue or something material. In a case such as this, an inability to be specific about time or about other peripheral subjects should not be fatal.
[23] Demeanour evidence is however not completely irrelevant; for example, the way that a witness testifies, such as unanswered questions, hesitations, challenging counsel, or run-on and unresponsive answers, may also in certain circumstances 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 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). Indeed, it is often difficult to accurately understand why a witness, whom the judge has never met before, exhibits certain behaviours (see R. v. N. (S.), 2012 SCC 72, 3 S.C.R. 726 and the Canadian Judicial Council’s jury instructions mentioned in that decision). Demeanour is therefore 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 or virtual courtroom. A perceived positive demeanour can equally be difficult to assess.
[24] This brings us to myths and stereotypical thinking which 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”.
[25] 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).
[26] Finally, young witnesses must be assessed by reference to their age, mental development, understanding, and ability to communicate (R. v. R.W., 1992 56 (SCC), [1992] 2 S.C.R. 122 at para. 26). In R. v. M.(A.), 2014 ONCA 769, 123 O.R. (3d) 536, the Court of Appeal provides guidance on assessing the credibility and reliability of a complainant in the context of young adults testifying about childhood events. At paras. 9 through 13 it provides that:
• Every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding, and ability to communicate.
• No inflexible rules mandate when a witness' evidence should be evaluated according to "adult" or "child" standards. …
• Despite this flexibility, there are some guiding principles. Generally, where an adult testifies about events that occurred when he or she was a child, his or her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of the witness’ age at the time the events about which he or she is testifying occurred, and may therefore not impact credibility and reliability so heavily.
• One of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what he or she has said on other occasions. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.
• 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.
Analysis
[27] The accused testified and denied the allegations made against her.
[28] Applying the W.(D) analytical framework, when I consider the evidence of the accused in the context of all the evidence, I do not believe the accused. However, her evidence leaves me with a reasonable doubt about her guilt. I arrive at these conclusions for the following reasons:
• I do not believe the accused because I find her evidence explaining her occasional marihuana use with the complainant and explaining the exchange of appropriate back rubs and massages with the complainant, her young foster child, difficult to believe.
• However, despite her occasional poor memory of dates and of other peripheral events, the accused was a convincing witness. She denied every allegation and was not shaken during her cross-examination. She answered questions asked of her and did not argue with Crown counsel. As is illustrated below, she provided explanations to difficult portions of the evidence and her explanations about the alleged events at least raised a reasonable doubt. Moreover, the complainant was not a convincing witness. His narrative lacked convincing details and he tended to argue with and challenge defence counsel.
• The accused provided a plausible explanation for her bond with the complainant and for how their relationship evolved. He reminded her of her little brother, he improved in their care, and he did not wish to be placed in another group home. The complainant did not wish to attend school and missed a lot of school. This was not acceptable to the accused and she pursued the complainant about this. She took steps to enroll the complainant in an alternative schooling program, but difficulties attending school resurfaced and led to tensions at home. The accused provided believable evidence about the complainant’s worsening behaviour and about her motivations for moving out. The accused testified that the complainant’s behaviour made her stressed and concerned, and her evidence about this and about why she later resumed some contact with the complainant were measured and believable.
• Although I do not believe the accused’ evidence about the massages, it nonetheless leaves me with a reasonable doubt because she convincingly testified that these were never in the bedroom, always clothed, always involving appropriate touching, and never sexual. She explained her ongoing back issues which eventually required some surgical intervention. She said that she was always trying to get someone to rub her back and she compared those back rubs to what her mother would have given her.
• Similarly, I do not find the accused’s explanations about bed sharing totally lacking in common sense. She said that this only occurred where necessary on trips or when camping in a tent, and she said that this rarely occurred. Moreover, the fact that she did not deny such bed sharing could indicate that she is more focused on telling the truth than on trying to distance herself from the complainant’s allegations.
• As well, the accused made reasonable concessions. For example, she agreed that she loved the complainant, in a platonic way. She agreed that it was possible that the complainant gave her an appropriate massage while consuming marijuana. She explained how this happened and admitted that smoking marijuana with the complainant was not a good idea and explained how she had considered that at the time versus now.
• She also admitted that it was not a good idea not to have followed the Children’s Aid Society’s direction not to have any contact with the complainant after their foster home was closed following a physical altercation between the complainant and the accused’s former spouse, and she admitted that it was not a good idea to have stayed in contact with the complainant thereafter. However, again she provided a logical explanation for her decision to speak with the complainant (he was calling from a group home, he was very upset, he did not wish to be in a group home, and she was worried about him), and she reasonably explained why further contacts nonetheless occurred.
• Overall, although as indicated above I do not believe all of her evidence, the accused was not trying to describe herself as faultless. Instead, she made some reasonable concessions and admitted to what she ought to have done differently. She provided explanations for her motivations and decisions, she did not exaggerate, she was cooperative when questioned by Crown counsel, and parts of her evidence were logical and consistent.
• As a result, the accused evidence left me with a reasonable doubt about whether the alleged events occurred.
[29] Further, for the following reasons, the totality of the evidence has not proven the accused’s guilt beyond a reasonable doubt:
• The complainant did not remember anything about the first time he and the accused had intercourse, despite him agreeing that this would have been a significant event in his life. This is not a timing or a peripheral issue that he remembered inaccurately. Rather, this is a complete absence of evidence of a very specific and significant instance of sexual abuse.
• The complainant generally tended to make broad statements about alleged instances of sexual abuse by the accused, and rarely provided convincing details. He remembered few of the many alleged instances of sexual abuse by the accused apart from naming different areas of the house and places where it would have occurred. However, on one of the few instances where he provided some details, despite alleging at least 40 to 50 occurrences, he contradicted some of his earlier statements about whether or not he gave the accused oral sex on that first or triggering occasion. Again, this is not in relation to a timing or peripheral issue, but to a very specific act of alleged sexual abuse that the complainant agreed would have been an important incident for him at the time – it related to the first time that he and the accused allegedly had sexual contact.
• During his examination-in-chief and during part of his cross-examination, the complainant said that he and the accused resumed sexual relations after she moved to a Vanier residence. He said that this involved kissing, groping over and under clothing, and grinding. He confirmed that during his cross-examination when given another opportunity. However, moments later, his attention was brought to an earlier statement where he had said that these instances of sexual abuse also involved oral sex. He explained that he had forgotten despite also admitting that oral sex would have been significant when compared to kissing, groping, and grinding.
• Although I do appreciate that it has been over 20 years, that the complainant was then a teenager, that these are difficult memories, that he is not adding aggravating facts, and that these are the only two inconsistencies, these are nonetheless significant in a case where very few details have been provided by the complainant.
• Despite alleging “a full-blown girlfriend-boyfriend relationship”, the complainant remembered few intimate details of his alleged romantic or intimate relationship with the accused. He made general statements that they talked about having a relationship, of keeping it a secret, of living together, but he remembered little that was specific. For example, the complainant did not remember why the accused ended her relationship with her spouse at the foster home and did not know why the accused decided to move out. He also did not remember why or how his alleged relationship with the accused eventually ended. He indicated that having sex with a young woman was then a big deal for him, said that they often had sex, yet he did not remember why or how it stopped. On the other hand, the accused said that her relationship with the complainant was appropriate and that she left because the complainant became progressively more controlling. As well, after the accused moved to a Vanier residence, the complainant alleges that their sexual relations resumed, yet he could not remember any details about why their relationship then resumed, could not remember many details about it, and could not remember any details about why it later ended.
• The complainant was not a convincing witness. He remembered few details and on the few occasions when he gave details, it contradicted an earlier statement. He was cooperative and gave detailed answers in a polite tone when questioned by the Crown in-chief. However, during his cross-examination he was at times vague and unnecessarily evasive. For example, he was hesitant to agree that the accused had back issues. When asked about his escalating behaviour with the accused at the foster home, he said that these questions were not relevant. The complainant also got angry with defence counsel when internal contradictions were pointed out to him. He said that it was for him to decide if a question was relevant. At times, he appeared careless on cross-examination replying that “anything is possible”. He was occasionally unwilling to provide details that might show the accused in a positive light. For example, in-chief, he did not mention that the accused explained his options and the consequences of ending his wardship, but during his cross-examination, he agreed that this conversation probably occurred. Overall, the complainant’s version of events lacked convincing details.
[30] The Crown alleges that it is easier for the complainant not to remember details because these incidents were not perceived by the complainant to have been traumatic at the time. They had inappropriate sexual contact 40 – 50 times, and the complainant only much later realized that this conduct by the accused was wrong. However, this argument contradicts the evidence of the complainant that, at the time, these events were nonetheless a big deal or significant for him. I also recognize and have factored into my analysis the Crown’s argument that the complainant has the right to be angry for what allegedly happened to him and that demeanour has in any event very little value in such cases. Finally, I disagree with the Crown that the accused’s Facebook text messages to the complainant corroborate her guilt. Rather, I find that the content of her messages to the accused just as well support her explanations, including that she did not know what was happening. This was a difficult case to decide, but on balance I am left with a reasonable doubt.
Conclusion
[31] The accused is therefore found not guilty on both counts.
Mr. Justice Pierre E. Roger
Released: February 8, 2021
COURT FILE NO.: 18-RA19548
DATE: 20210208
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
A.S.
Accused
REASONS FOR decision
Roger J.
Released: February 08, 2021