Court File and Parties
COURT FILE NO.: CR-19-0022-00 DATE: 2022-02-28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN T. Boisvert for the Crown
- and -
J.B. K. Matthews for the Accused Accused
HEARD: November 22, 23, 24 and 30, 2021, at Thunder Bay, Ontario
Mr. Justice F.B. Fitzpatrick
Warning
AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA
Reasons For Judgment
[1] An order has been made under s. 486.4 of the Criminal Code, R.S.C., 1985, c. C-46 [the “Code”] prohibiting the publication, broadcast, or transmittal of any information that could identify the complainant or any witness in this case. Consequently, I will not use the name of the accused and persons related to him who are relevant to this decision. The s. 486.4 order shall continue, save and except for publication of these reasons for decision by legal publishers or of general description of the ratio decidendi of these reasons by the press.
[2] The Crown alleges that J.B. sexually assaulted his cousin C.B. contrary to section 271 of the Code and threatened her with death contrary to section 264.1(1)(a) of the Code. The events leading to these charges are alleged to have occurred in the fall of 2017. Both J.B. and C.B. were adults at all relevant times.
Background
[3] In September 2017 C.B. was 24 years old. She lived on Fort William First Nation (FWFN). She worked in a well-known gas bar and restaurant business in that community which was owned by her family. She had just started to attend Confederation College. Unfortunately, she had also just began what she described as occasional use of crack cocaine.
[4] J.B. had moved back to FWFN in the summer of 2017. He was 31 years old at the time. He lived in a house with his wife relatively close to where C.B. was living at the time with her mother, J.B.. C.B.’s mother was the second and last Crown witnesses of this two-witness trial. As she has the same initials as the accused, to avoid confusion further in this judgment, I will hereinafter refer to C.B.’s mother as X.B..
[5] The parties agreed to certain facts which were characterized as “admissions”. They are attached as Schedule A to this judgment.
The Evidence Regarding the Alleged Sexual Assault
[6] The indictment in respect of the charge under section 271 of the Code alleges a relatively broad time frame during which time the one incident of sexual assault is alleged to have occurred. However, from the evidence of C.B. and X.B., I find that the date at which the alleged sexual assault occurred was between Friday September 22 2017 and the early hours of Sunday September 24, 2017. I so find because of the evidence of X.B. that she went on a trip to Minnesota that weekend and had to return early because one of the people she was with became ill. She has a specific recollection of coming home on the Sunday to find her house in quite a state of disarray. It was disarray of a nature that leads me to believe her about what she witnessed on that occasion. The family dog had not been let out and had defecated in various places throughout the house. There was dog food and cat food all over the kitchen. The shower doors of the bathroom used by C.B. were broken and off their emplacements. Also, there was a fundraising event that weekend on FWFN which allowed X.B. to recall the date. While X.B. may have demonstrated some other frailties in giving her testimony which I will discuss below, I am satisfied she has the dates right that place C.B. in her home for what I will describe next.
[7] I recount C.B.’s evidence both in chief and in cross examination in the following paragraphs. On Friday September 22 2017 C.B. had done some crack with her friend “D” during the day. At around 11:00 p.m., C.B. and her friend decided to drive “into town” to get a coffee. I take judicial notice of the fact that for residents of FWFN “driving into town” means going somewhere in the City of Thunder Bay. Currently and historically, it was a short drive across the Kaministiquia River. The major and most direct route to reach Thunder Bay from FWFN by car is over a swing bridge operated by the Canadian National Railway Company. However, in the fall of 2017, vehicular access across the swing bridge had been cut off due to damage to the bridge. The delay in the return of vehicular access and the repair of the bridge is notorious in Thunder Bay and FWFN. In any event, C.B. decided to walk back to her house across the swing bridge around midnight on Friday.
[8] C.B. testified she found J.B. sitting in a car in an area on the FWFN side of the swing bridge. He offered to drive her the very short distance home from that location. The first business one can see when driving across the swing bridge is the restaurant and gas bar business owned by C.B.’s family. In fact, C.B.’s house was right next door to the family restaurant and gas bar business. C.B. testified that J.B. came into her house. In the living room of the house, C.B. had moved a mattress so she could watch T.V. while lying on the mattress.
[9] The two talked. C.B. claims J.B. then offered her a drug she initially thought was crack. She smoked the drug. It affected her in a way she did not expect and had not previously experienced while taking crack. She blacked out.
[10] C.B. testified she awoke later on the mattress. She was naked. J.B. was on top of her. He too was naked. C.B. testified she felt J.B.’s penis inside her vagina. She did not consent to this action. She recalls J.B. saying words to the effect “I don’t know if I can do this”. C.B. then blacked out again.
[11] C.B. testified she awoke later in the shower. She saw blood in the shower. Her clothes were on the floor beside the shower. J.B. was not in the bathroom. She told him to go home and lock the door on the way out. J.B. left the house. C.B. finished in the shower and then went to her mother’s bedroom and went to sleep.
[12] C.B. was awakened by her mother. According to X.B. this was some time in the very early hours of Sunday September 24, 2017. When she awoke, C.B. immediately recognized she had slept for over 24 hours. She realized that she had not attended to the needs of the dog in the house.
[13] C.B. testified she did not initially believe that she had been subject to a sexual encounter with her cousin. She testified it was like “a dream”. However, C.B. testified that J.B.’s conduct with respect to her from the period from after September 24 2017 until February 6, 2018 confirmed for her that she had been sexually assaulted by him.
[14] C.B. testified that J.B. began to follow her and be in her presence in a way that was out of the ordinary even for a tightly knit community like FWFN. C.B. claims J.B. eventually asked her if she was pregnant. C.B. testified this statement confirmed for her that what she feared happened really did happen. C.B. testified the sexual assault was not a dream.
[15] According to C.B., J.B. also threatened to harm C.B. and the baby if indeed she was pregnant. She testified she has developed an addiction to crack cocaine as the result of the assault. She had to quit school. She claims she suffers from PTSD.
[16] The Crown did not lead any independent medical evidence about C.B.’s health. The Crown did not assert that C.B. was pregnant at any time material to the matters at issue.
[17] C.B.’s evidence was not precise about the dates of the threats or the precise words that J.B. said to her that constituted a threat. She testified J.B. threatened to “do something about it”, “it” being a baby if in fact C.B. was pregnant. I will discuss this evidence further in the context of the “utter threats” charge.
[18] I will now discuss the evidence of X.B. that the Crown submits exists “around the periphery” of C.B.’s evidence concerning the sexual assault. The Crown submits X.B.’s evidence is not determinative as to whether or not the sexual assault occurred.
[19] X.B. testified that she woke C.B. up when she returned from her trip to Minnesota late Saturday September 23, 2017, or early Sunday September 24 2017. She testified that C.B. appeared very frightened and was shaking. Despite this unsettled state of affairs, C.B. left the house to attend the local fundraiser according to X.B..
[20] X.B. gave more detailed evidence about the alleged threats made by J.B. after September 24, 2017.
Analysis regarding the Sexual Assault charge
[21] The Crown has provided several authorities and referred to general principles from other jurisprudence related to sexual assault. With regard to the general principles from cases such as R. v. D.D., 2000 SCC 43, [2000] S.C.J. No. 44 at paras. 63 and 65 the Court accepts there is no “right” way for a victim of sexual violence to behave during or after a sexual offence. The Crown also referred to the decision in R. v. Seaboyer, [1991] 2 S.C.R. 577 for the proposition that victims of sexual assault should not be measured against an idealized standard of conduct. I accept that proposition applies as well to the case at bar.
[22] In regard to the charge under count 1 on the indictment before the court, the question is whether or not the Crown has proved beyond a reasonable doubt that an act of non-consensual sexual touching took place between J.B. and C.B. on or about September 22, 2017. J.B. argues C.B. has made up the entire event. J.B. argues the Crown has not proven beyond a reasonable doubt that J.B. actually touched C.B. in a sexual manner at any time.
[23] The Crown relied on a number of other cases in support of their submission that the essential elements of the offence have been proven beyond a reasonable doubt. I agree with the defence submission that these cases relied upon by the Crown can be distinguished. They were of little use to the resolution of the charge of sexual assault given the facts as presented in the evidence. In my view, the cases tendered by the defence in respect to assessment of reliability and credibly were of greater assistance to the Court in resolving this matter.
[24] The Crown relies on a recent decision of the Supreme Court in R. v. G.F., 2021 SCC 20, [2021] S.C.J. No. 20. SCC. In that case there was no issue that a sexual act had occurred. The issue for the Court was capacity to consent in the face of severe intoxication by a complainant. The case at bar is not about consent.
[25] The Crown relies on the decision of the Alberta Queen’s Bench in R. v. Shrivastava, 2018 ABQB 998, [2018] A.J. No. 1463. In that case the Crown relied on evidence of “sensory memory” on the part of the complainant. However, in that matter, the central issue was consent. While the complainant was extremely intoxicated, the court had physical DNA evidence of the accused found on underwear of complainant. No physical evidence of a sexual assault was placed before the Court in the present matter. In my view that distinguishes the Shrivastava case from the one at bar and is therefore not persuasive for the central issue before me.
[26] The Crown relied on R. v. D.A., 2018 ONCJ 307, [2018] O.J. No. 2472. In that matter the issue was consent in the context of evidence of heavy intoxication of the complainant and admitted physical evidence that sexual activity occurred. The decision in R. v. D.A. is fact specific in my view. The Crown relied on another relatively recent decision of the Supreme Court of Canada in R. v. Kishayinew, 2020 SCC 34, [2020] S.C.J. No. 34. In that matter the central issue for determination by the Supreme Court was one of subjective consent in the context of an admission by accused that he had sex with complainant. The Kishayinew decision was not on point for this matter. Subjective consent is not an issue here. If I find the Crown has proven beyond a reasonable doubt that J.B. touched C.B. in a sexual manner as she has alleged, it is clear from her evidence she did not subjectively consent to that touching.
[27] I take from the defence position that C.B.’s intoxication on the day at issue, as well as her drug use before and after the alleged event renders her evidence completely unreliable and not credible as to the essential element of the offence of sexual assault. The defence argues the sexual touching did not happen. I accept C.B.’s evidence of her own level of extreme intoxication that evening. She was intoxicated to the point she came in and out of consciousness. In my view, that state of severe intoxication would be an occasion where consent to sexual touching could not be capably given by a participant in such activity.
[28] The Crown relied on the Ontario Court of Appeal decision in R. v M.B., 2018 ONCA 399, [2018] O.J. No. 2386. In that decision the Court of Appeal considered an appeal based on the trial judge’s assessment of the complaints’ credibility. The facts in R. v. M.B. involved allegation of cousins having sex and the complainant having difficulty in reconstructing memory due to intoxication. In my view, the decision of the Court of Appeal was fact specific and not of assistance to a resolution of this matter. The Crown also put forward another decision of the Ontario Court of Appeal in R. v. Rand, 2012 ONCA 731, [2012] O.J. No. 5061. In that matter the issue was vitiation of consent in circumstances where the accused testified to having sex with the complainant. In my view the ratio of the decision is not of assistance given the facts of this matter.
[29] The defence put before the Court authorities related to the assessment of the credibility and reliability of witnesses. The defence relied on the decision of Watt J.A. in R. v. C.(H)., 2009 ONCA 56, [2009] O.J. No. 214 where, at para. 41, he said:
41 Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately (i) observe; (ii) recall; and (iii) recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514, at 526 (C.A.).
[30] I note that in R. v. C.(H). Watt J.A. at para. 43 referred to a portion of the trial judgment where the trial judge “reminded himself” of the crucial importance of both credibility and reliability in any decision. I will repeat that passage here as I could say it no better and I think it speaks directly to the central question in this trial:
The correct disposition of this case is dependent upon an assessment of credibility. An assessment of credibility involves evaluation not only of the honesty of the particular witness, but also the reliability of the evidence of the witness. One should not rely on the testimony of a dishonest witness in the absence of some independent corroborative evidence; however, even honest witnesses can be mistaken. It sometimes happens that a witness will be quite honest and sincere yet his or her evidence may not be reliable due to external factors such as ability to observe, remember, or relate accurately.
[31] The defence also put before the Court a 2018 decision of this Court by Trimble J. in a sexual assault case which provided a useful summary of the law concerning credibility. In the decision, R. v. D.G., 2018 ONSC 6612, [2018] O.J. No. 6873 at para. 113 – 116 Trimble J. said:
113 The credibility of the witness is determined by addressing two questions: 1) is the witness "believable", and 2) is the witness's evidence "reliable".
114 Trial judges, like juries, rely on many factors in assessing the weight to be given to the testimony of witnesses based on an assessment of that witness' reliability and ultimate credibility. Triers of fact can also believe some, none or all of the testimony of any particular witness.
115 Assessing credibility involves assessing many factors. As the Ontario Court of Appeal said in R. v. M.W.M. [1998] O.J. No. 4847 at para. 3:
...In weighing credibility, it is appropriate for a trier of fact to consider a witness' motive or lack of motive to fabricate and, although the trial judge dealt with the subject at considerable length, we are not persuaded that he shifted the onus to the appellant to prove such motive nor that he equated credibility with the absence of such motive...
Some of these factors are:
a) The demeanour of the witness -- this is an important factor, although not the only factor. People react differently in what, to them, is a strange environment. Witnesses come from different cultural and social backgrounds. All of this means that the non-verbal cues may be difficult to assess. Findings of credibility should not be made on demeanour, alone. See: R. v. L.H., [2007] O,J. No. 1588 (S.C.J.), para. 83 to 86, R. v. K.A. (1999), 123 O.A.C. 161 (C.A.), para. 172.
b) Does the evidence of the Witness make sense? - is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and condition? See: Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.).
c) Internal Consistency -- does the evidence have an internal consistency and logical flow? R. v. C.H., [1999] N.J. No. 273 (Nfld C.A.).
d) Prior inconsistencies -- is the evidence consistent with prior statements (e.g. Discovery evidence)? How significant are the differences, and are they adequately explained? R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788.
e) Is there independent confirming or contradicting evidence? R. v. Khan, [1990] 2 S.C.R. 531. (S.C.C.)
f) Interest in the outcome and a motive to fabricate -- does the witness have such motivation? The mere motivation to win or lose the case is not sufficient. The interest must be beyond that. See: R. v. S.D, 2007 ONCA 243, 218 C.C.C. (3d) 323. The absence of evidence of motive to lie does not mean that there is an absence of motive. There is a difference between an absence of apparent motive and proven absence of motive. The Court must remember that there is no onus on the defence. See: R v. L.L. 2009 ONCA 413, [2009] O.J. No. 2029 (C.A.),
116 No one of these factors is determinative.
[32] In my view, the Crown case relies on my accepting that C.B. is a reliable and credible witness.
[33] The reliability and credibility of C.B.’s evidence is central to a determination of whether or not the Crown has met its burden of proof. In chief, C.B. clearly and unequivocally testified that J.B. put his penis in her vagina and she did not consent to him doing so. This is evidence of an act of sexual assault. C.B. did not waiver while being cross examined about the act of sexual touching she says J.B. did to her.
[34] I appreciate the criticisms in the authorities of decision makers who place significant emphasis on the demeanor of a witness. Demeanor is difficult to accurately reflect in a written decision as it relies on observations of how the witness answers questions. Demeanor for me is not foremost in my assessment of either the reliability or credibility of C.B.’s evidence. However, I did have the opportunity in this trial to make an in-person observation of the manner in which C.B. testified. In my view, she gave her testimony in a forthright and consistent manner. She directly answered the questions asked. She did not appear to be evasive. She did have moments of emotion consistent with the portions of her evidence that seems to me would cause a person to have difficulty testifying.
[35] Defence counsel fairly, firmly and repeatedly put to C.B. the proposition that she had fabricated, or had dreamed, or was not certain that J.B. had put his penis in her vagina without her consent. Defence counsel suggested that C.B.’s use of crack before the incident impaired her ability to observe, recall and recount what occurred on September 22, 2017. In my assessment of the evidence, C.B.’s firm assertions while giving her evidence about what occurred that evening as to the act of sexual assault do not raise any reasonable doubt about C.B.’s ability to recount what occurred. She remained consistent in her evidence about the order of events, and where they occurred and the time frame for the act. She was consistent that J.B. performed an act of sexual assault on her.
[36] I accept C.B.’s evidence that late on Friday September 22, 2017 at around midnight she met J.B. in the area of the swing bridge near FWFN. I accept the defence suggestion that it was an odd place for J.B. to be in a car at that time of night given the fact the swing bridge was not open to traffic. However, despite the fact of it being odd, it does not follow that it was impossible or sufficiently inconsistent with C.B.’s other testimony about what she was doing that night. This aspect of C.B.’s evidence was reliable and credible. I also accept C.B.’s evidence that J.B. drove her the short distance from the swing bridge to her home. Again, an odd thing to have occurred given the short distance, but consistent with C.B.’s story that J.B. was talking to her and she wanted to talk to him but she wanted to be home at that time. I accept the evidence elicited in cross examination that C.B. had been using crack before she met J.B. that night and she was high as she walked across the swing bridge. She was headed home and it does not seem illogical or inconsistent for her to want to finish that journey and get inside her house.
[37] C.B. testified J.B. came in the house with her. In my view this is reliable and credible evidence. J.B. was related to C.B.. This gives her a reason to invite him in.
[38] C.B. testified that sometime later while inside the house, J.B. gave her a drug she thought was crack. She admitted freely she was using at that time. She admitted she was high while walking across the swing bridge just before they got to the house. The degree of her use at the time was a contentious issue based on some of the questions asked in cross examination. C.B. also testified that her drug use was occurring largely as the result of substances being provided to her rather than her buying. I find this evidence consistent with other testimony that C.B. accepted an illegal substance from J.B. and ingested it while in his presence. She was a drug user at the time. Accepting what she thought to be crack from her cousin is logically consistent.
[39] C.B. testified she then blacked out. The defence argues C.B.’s evidence about what happened thereafter is tainted with reliability problems because of the degree to which C.B. was admittedly intoxicated. Common sense tells me that “blacking out” by definition impairs an ability to recall events contemporaneous to an occasion of losing consciousness in that way. However, C.B. testified that she “came to” to find J.B. on top of her. She was naked and he was naked. He put his penis in her vagina. This is a serious state for a person to find themselves in. It is not inconsequential. And she said she had regained consciousness at that very time.
[40] The defence points to a prior inconsistent statement of C.B. about what happened that night to attack both her credibility and the reliability of her evidence. I note that in the initial statement C.B. gave to police, she admitted she was high on crack at the time. In my view, this makes what she said in the statement highly suspect and not particularly useful for impeachment of C.B.’s trial evidence. Being high when giving a statement to police is certainly unwise. However, the statement was given while C.B. was in an intoxicated state. I did not find the comparison of what was said in the statement to what was said in the trial evidence of C.B. to be useful or supportive of the proposition that I should treat the evidence given by C.B. at trial about the act at issue as being unreliable or incredible. The fact C.B. was high when giving the police statement does not put the statement into a category that would assist me in any meaningful assessment of C.B.’s trial testimony. In any event, in the statement, C.B. recounted an event whereby J.B. touched her in a sexual manner without her consent. She expressed her disbelief initially that it had in fact occurred. She said in the statement what she remembered came by way of a flashback. However, she said that J.B.’s actions subsequently in questioning her about being pregnant confirmed for her what she did not want to believe.
[41] The defence also asserts that C.B. never expressly described the event in her statement to police as being one where J.B. put his penis in her vagina. Nevertheless, she indicated a present recollection in her testimony that action is what exactly occurred. Counsel for the defence pressed C.B. on numerous occasions on this critical point. An example of such an exchange occurred at page 42 of the trial transcript, from line 23 to 32:
Q. So what I’m telling you is the reason you believe that is precisely what I was just asking you earlier, because you’re having these flashbacks. You’re having these memories. That’s why you believe you were sexually assaulted, right? A. No. Q. So you’re telling me now, today, that you actually have a recollection of [J.B.] sexually assaulting you? A. Yes, and I always remember seeing that, like coming to and him being on top of me. That I know for sure.
[42] At the close of cross examination counsel again fairly, firmly and repeatedly put to C.B. the proposition that the sexual touching did not occur. This occurred at page 86 and continued on to page 87 to line 10 of the transcript of the cross examination of C.B.;
Q. So [C.B.], I’m going to suggest to you now that what you’re telling us, what you’re telling us about [J.B.] simply did not happen, period. A. No. Q. I don’t know where it’s coming from. I don’t know why you’re suggesting that [J.B.] did this but the bottom line is it didn’t happen, period. A. It did. Q. You’re having flashbacks, you’re having recollections of this incident but that’s just it. It’s flashbacks, it’s dreams. That’s where this is coming from? A. No. Q. This was not somebody you hung out with, and it’s not somebody you hung out with on that night either? A. I barely knew him and he was family. Q. So has anyone suggested that you make this up or say these things against [J.B.] or not? A. No. Q. One of the things you said at the prelim about your recollection, [C.B.], is this, at page 33. I was asking you about whether you were ever having any conversations with [J.B.] about the actual incident itself, and, “Answer: For a month after it occurred I didn’t believe it and was not sure if it was real or not.” That’s what you said at the prelim, right? A. Yes. Q. You were not sure if it was real or not. THE COURT: She said that in her testimony in-Chief today too. MR. MATTHEWS: “Question: Okay. Why is that? Answer: Because from sleeping that long I just honestly believed it was only a dream.” A. Right. Q. Right? A. Yes. Q. And it was simply the conversations, these interactions with [J.B.] that are now making you believe that it’s more than a dream? A. He knows what he did.
[43] In my view there was no trial evidence given by C.B. that would lead me to find she had a motivation to fabricate her evidence. I find her initial disbelief at the event of sexual assault occurring to be reliable and credible. She was closely related to J.B. My understanding of social norms in this region leads me to conclude this act of sexual intercourse would be considered most irregular and repugnant. J.B. was married. C.B. was his cousin. C.B.’s initial professed disbelief is consistent with this state of affairs for these two adults. This disbelief is understandable in the context and not a basis to dismiss the evidence as not credible that an act of sexual assault occurred.
[44] I am aware of circumstances where substances are administered by one person to another rendering them intoxicated to the point where they cannot actively resist being sexually assaulted. C.B. says J.B. provided her with a substance that affected her differently than the crack she admitted she was abusing at the time. C.B.’s evidence was that she started clothed, took the drug, blacked out and then woke up naked and being assaulted. In my view this evidence is consistent with having been given a substance designed to undermine resistance. This is an aspect of internal consistency that I find assists in finding C.B. reliable in her evidence that she was sexually assaulted by J.B. Acts of sexual assault are serious. In my view they are occasions that are hard to forget for any person, even people who are addicted to serious, bad drugs like crack.
[45] In this trial I have only C.B.’s evidence about this alleged act of sexual touching. There is no independent confirming or contradictory evidence about the act itself. There was no medical or physical evidence. There were no independent witnesses who saw the two people together that night.
[46] I have C.B.’s evidence of what occurred between J.B. and herself after the date of the alleged act. It was referred to in paragraphs 13, 14, 15 and 17 supra. C.B. and J.B. live in a small community. They were related. They both worked in the family business. There are objective reasons to explain why they would see each other regularly. However, C.B. testified the contact went beyond what she would have expected. I have another witness, X.B. who confirmed J.B. being in C.B.’s presence on other occasions after September 22, 2017 but before February 6, 2018. I am concerned with X.B.’s evidence about the threats made by J.B. for reasons I will discuss below. However, I have no other evidence that gives reason to doubt that C.B. experienced J.B. being around her in a way that was inconsistent with a usual interaction of related people who lived on FWFN in 2017 and 2018. Also, the evidence C.B. gave about J.B. talking about a pregnancy only makes sense if J.B. had committed an act of sexually assaulting C.B.. I appreciate the defence submission that the evidence of post alleged assault events has an air of being completely self-serving. It is convenient for C.B. to say these things about J.B. in the context of confirming that she had been sexually assaulted. However, I believe C.B.’s evidence that J.B. asked her about being pregnant post September 22, 2017.
[47] I appreciate C.B. testified her life began to spiral out of control after the alleged incident. She quit her job. She quit school. She quit working. She claims she became addicted to crack. She resisted while under cross examination the suggestion that her addiction predated this interaction with J.B. on September 22, 2017. She explains these negative aspects as being attributable to having been sexually assaulted by a relative. While it is possible that all these negative things could have occurred independent of the alleged assault, I find her evidence was consistent about the problems occurring in her life at that time. To me she sounded credible on the point. I did not see her as trying to exaggerate or embellish her evidence. I believe her evidence about the events that occurred after the sexual assault.
[48] I accept C.B.’s testimony that what J.B. said to her about her being pregnant was confirmation of the fact that he had committed an act of non-consensual sexual assault. Other explanations are possible, but it would involve me speculating about the evidence in a manner that I assess I cannot do. I do not have a reasonable doubt about C.B.’s testimony about the sexual assault. I do not find that her drug issues, the degree to which she was impaired that night, and her initial disbelief in what occurred, or that she did not raise the issue until months later, are reasons for me to dismiss her evidence as unreliable or not credible. For the reasons I have noted above, I believe the evidence of C.B. about being sexually assaulted by J.B. I find the Crown has proven beyond a reasonable doubt that J.B. committed a sexual assault against C.B. as alleged in count 1 of the indictment before the Court.
The Evidence Concerning the Utter Death Threats Charge
[49] X.B. testified J.B. was present around both her and C.B a great deal more than she expected in the Fall of 2017. This confirmed C.B.’s evidence that J.B. was around her a lot more than she expected following the incident of sexual assault. X.B. testified to one specific occasion where she says J.B. barged into her house and then went in to C.B.’s bedroom and closed the door. X.B. then heard, through the wall or the closed door, J.B. utter a very specific threat that he was going to kill C.B. and if she was pregnant he would take her to the hospital to cut the baby out of her.
[50] C.B. testified about J.B. questioning her about being pregnant. She did not specifically testify that J.B. threatened to kill her or do her bodily harm. The threat may have seemed to her to be implicit, in J.B.’s comment that “he was going to do something about a baby” if indeed C.B. was pregnant.
[51] In my view this was the only incident where a threat possibly rising to the level of a charge under section 264.1(1)(a) was sufficiently referenced in the trial evidence.
Analysis Concerning Utter Death Threat Charge
[52] The actus reus of a charge under section 264.1(a) is made out if a reasonable person aware of the circumstances in which the words were uttered would perceive them to be a threat of death or bodily harm. It does not matter if the victim appreciates they are being threatened. In my view, the evidence indicates that C.B. is the only person who directly received what could potentially be perceived to be a threat of death or bodily harm. X.B. heard the threats through a wall. This is not persuasive that X.B. was in a position to accurately recount what occurred whenever the words she attributes to J.B. were spoken. I am not prepared to accept that X.B.’s evidence about the threats were reliable or credible for the following reasons.
[53] X.B. evidence about the threats were confusing and imprecise. In cross examination she spoke of taking C.B. to doctors sometime in either December 2017, or January 2018. X.B. testified that a doctor ‘told her’ C.B. was pregnant. It appeared to me that this evidence took both the Crown and the defence by surprise. Overall, I assess that X.B. was very concerned about C.B.’s declining health in the Fall of 2017. C.B. testified she did not tell X.B. about her growing addiction to crack. X.B. testified she sensed something was wrong with C.B. but she could not figure it out and C.B. was not telling her.
[54] There is no question from the answers that X.B. gave, that she was very concerned about her daughter in the Fall of 2017. However, while giving her evidence at trial about the express interactions between C.B. and J.B., it seems to me she did not have a clear recollection of the events of that time. Further she appeared to embellish her evidence about C.B. when the questions in cross examination became pointed. Her testimony about C.B. being pregnant was not credible. I am of the view X.B.’s concerns about C.B.’s health at that time have negatively impaired her ability to recall what she actually heard J.B. to say to C.B. While J.B. may have been acting out of the ordinary given his relationship to C.B. and X.B. in the Fall of 2017, I find that X.B. did not accurately recount any threats made by J.B. to C.B. at any time material to the charge before the Court under count 2.
[55] I am then left only with what I saw as vague and imprecise allegations from C.B. about the alleged threat of death and bodily harm. This leads me to have a reasonable doubt as to whether or not J.B. uttered words that threatened death or bodily harm to C.B. Accordingly, I cannot find that the Crown has proven the actus reus of the utter threats charge beyond a reasonable doubt at this trial.
[56] In conclusion, with respect to the charge against J.B. regarding the sexual assault of C.B. contrary to section 271 of the Code, I find the Crown has proven the elements of the offence beyond a reasonable doubt. A finding of guilty will be registered in respect of Count 1 on the indictment before the Court.
[57] With respect to the charge of utter threats contrary to section 264.1(1)(a), I find the Crown has not proved the elements of the offence beyond a reasonable doubt. A finding of not guilty will be registered in respect of Count 2 on the indictment before the Court.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
Released: February 28, 2022
SCHEDULE “A”
File No. CR-19-0022-00
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Prosecutor
- and -
J.B.
Accused
ADMISSIONS
Jurisdiction
Identity, insofar as when C.B. and X.B. refer to J.B. they are referring to the accused before the court, who is known to them.
J.B. was six feet tall and weighed approximately 181 pounds at the time of his arrest for the offences before the court on March 2, 2018.
Anishnabek Police Service (APS) Officer John Rivet was alerted to the incident before the court on February 6, 2018.
Officer Rivet attended at XXXXX, XXXXXX First Nation, and spoke to C.B.
Officer Rivet asked C.B. to attend at the APS detachment to provide a video statement.
C.B. attended at the APS detachment on February 6, 2018 and provided a video statement, which commenced at 8:59 p.m.
SCHEDULE “A” pg 2
Officer Rivet also met with X.B., C.B.’s mother.
X.B. provided Officer Rivet with a written statement dated February 13, 2018
COURT FILE NO.: CR-19-0022-00 DATE: 2022-02-28 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - J.B. Accused REASONS FOR JUDGMENT WARNING AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA Fitzpatrick J. Released February 28, 2022