COURT FILE NO.: CR-19-00001560-0000 DATE: 2022 03 31 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Ryan Mullins for the Crown

• and -

O.Y. Harpreet Saini for the defendant

HEARD: November 17-24, 2021

PUBLICATION OF ANY INFORMATION THAT WOULD IDENTITY THE WITNESS V.K. IS BANNED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE. THIS JUDGMENT COMPLIES WITH THIS BAN

Reasons for Judgment

D.E. HARRIS J.

[1] Mr. Y. was charged with two counts of assault and one count of sexual assault against his on and off again partner Ms. K. committed between the years 2011 and the end of 2014. At the conclusion of the evidence and the submissions, I acquitted Mr. Y. of all three counts with these reasons to follow.

[2] The Crown’s task to prove guilt beyond a reasonable doubt encountered insurmountable obstacles in this trial. There was evidence of a motivation to fabricate, the evidence of Ms. K. was largely unconfirmed by other evidence, and the accused testified in his own defence and flatly denied the allegations. In light of these aspects, based on the evidence, the Crown failed to demonstrate proof to the high level of certainty required in a criminal case.

The Evidence

[3] By way of background, the accused and the complaint began to date in 2011 and continued to see each other sporadically to the end of 2014. From the outset, the relationship was unequal and unbalanced. Mr. Y. was 27 years old, Ms. K. was 17 and still in high school. At the trial, defence counsel admitted that Mr. Y. was not a good boyfriend. I do not think there can be much doubt about that. The imbalance based on their ages and levels of maturity were a major negative factor in their relationship.

[4] Ms. K. had a least one child with Mr. Y., a daughter, K., born in the spring of 2012. There was a son born too, R., born early in 2014. The accused testified that there was some doubt in his mind concerning whether he is the biological father of R. Ms. K. did not have any such doubts.

[5] Count 1, an assault charge, was the most recent allegation with an offence date of June 15, 2015 and was referred to by counsel as the car seat allegation. As had been pre-arranged, the accused arrived at Ms. K.s apartment to take the two children for the weekend. The accused came up to her apartment. When they and the two children went downstairs. Ms. K. looked into the car and saw that there was only one booster seat in the car. Mr. Y. put R. into the car without any type of child restraint and K. was put into the booster. Ms. K. believed this was unsafe. An argument ensued.

[6] According to Ms. K., in the midst of the argument, Mr. Y. tried to drive away with the children. The car door was open at the time and Ms. K.'s arm was in the vehicle. Mr. Y. drove the car in a jerky manner back and forth. He was berating her at the time and hitting her arm continually. The car travelled several meters. She eventually desisted.

[7] Police were called. Mr. Y. had driven away by this time. As a result of the incident, as pictures entered into evidence showed, one of Ms. K.’s arms had some redness and there was a bruise to her leg. Ms. K. gave a statement to the police that day concerning the car seat incident. She also mentioned in the domestic violence report that there had been sexual assaults against her in the past.

[8] Within several days, Ms. K. attended again at the police station and gave a statement with respect to the other offences in the indictment. Count number 2 alleges an assault committed between November of 2011 and the end of January 2012. Ms. K. testified that she mistakenly struck the accused in the groin area while in his apartment. She apologized but the accused became very angry and said that she had to apologize. When she did not do so he forced her onto the bed and held her there until she said that she was sorry. He said to her, “pride does not kill you, just say you're sorry.” She had difficulty breathing during this incident.

[9] Count 3 of the indictment alleged sexual assaults throughout the course of the relationship beginning in November of 2011 to the end of 2014. Ms. K. explained that the accused would punish her for perceived misdeeds. The punishment would consist of forced anal intercourse. In her police statement, Ms. K. said that this had occurred 10 times. At the preliminary inquiry she said it was more like 15-20 times. At this trial she said it was about 60 times.

Decision

[10] The car seat incident highlighted several problems in the Crown proving its case on the three counts on the indictment. This petty argument exposed the pool of acrimony between Ms. K. and Mr. Y. Ms. K. generally supplied the car seats for Mr. Y. to use for the two young children. On this occasion, piqued by the fact that he had not brought his own child seats, she was unwilling to provide them to him. Perhaps that was understandable but the truth of the matter is that the complaint in this case was made in the midst of an ongoing high conflict intimate partner relationship.

[11] In terms of the history, Ms. K. testified that at the beginning, their relationship was stable for a period of time. Ms. K. said that in this period she lived predominately with Mr. Y. but also with her mother in Brampton. He wanted her to get pregnant but when she did get pregnant with her daughter K. there was a switch and the accused wanted her to have an abortion. She refused. Part of his reluctance was that he already had a child with another woman. Soon afterwards, it was not clear exactly when, family court custody proceedings were initiated by Mr. Y. It was Ms. K.’s evidence that he brought her to court many times over custody and her denial of access to the children starting in 2013 and going right up to the present time. Currently, Ms. K. has sole custody but there remain ongoing proceedings.

[12] Furthermore, Ms. K. alleged and Mr. Y. did not dispute, that he started cheating on her with other women starting in 2013. He had a new girlfriend by 2014. Ms. K. found this devastating. There were other issues between them which created bad feeling.

[13] By the time of the car seat incident in the summer of 2015, a well of resentment and anger had grown between the two. There were both immediate reasons to falsely implicate the accused as well as more deeply rooted reasons. I do not find that the complainant’s allegations are false led to some doubt about the credibility and reliability of the complainant’s evidence.

[14] Furthermore, there was little confirmation for Ms. K.’s evidence with respect to the car seat allegation and none with respect to the other two counts. Confirmation is not legally required. But, particularly when the accused testifies as occurred here, a pure credibility case between complainant and accused takes on a different complexion than a case with at least some degree of confirmation: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104 at paras. 1-2.

[15] Mr. Mullins for the Crown did not put much weight on Ms. K.’s bruises as serving as confirmation for her evidence. I think his judgment on this was correct. On both Ms. K.’s and Mr. Y.’s evidence, there was a skirmish between them. It was to be expected that whatever took place, minor bruises could be caused as a consequence.

[16] The defence placed some reliance on evidence that the complainant notified the police about other misconduct by Mr. Y. twice before her complaint about the allegations at hand. In those instances, she did not make mention of the offences alleged in the indictment in counts 2 and 3. The first instance was a complaint to the police that Mr. Y. was tracking her computer in April of 2014. The second instance was a complaint to the police in January of 2015 with respect to Mr. Y. banging on her door in order to serve family law papers on her. He was with his girlfriend and another person which she felt was inappropriate.

[17] I would place some weight on this evidence but it ought not to assume great significance. In both instances raised by the defence, the complainant admitted that she was angry with Mr. Y. And in both, the relationship between the two was in full-break down mode. From one perspective, it could be expected that the complaints of the incident on the bed and anal intercourse in counts 2 and 3 would be made to the police if the complainant was in the midst of reporting another allegation against Mr. Y. Nonetheless, it is now trite that different complainants will react differently to offences against them. Complaints cannot be expected to follow pre-determined timelines. It would be unwise to put too much stock in the delay in the complaint even in these circumstances: R. v. D.D. 2000 SCC 43, [2000] 2 S.C.R. 275 (S.C.C.) at para. 65.

[18] About one day into the defence cross-examination of Ms. K., the Crown made application under Section 486.2(2) of the Criminal Code permitting the complainant to testify behind a screen to shield her view of the accused. I dismissed that application with reasons to follow. I will set out my reasons now.

[19] The subsection reads as follows,

Other witnesses

(2) Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice.

[20] The factors to be considered on a screen application are set out in ss. 3. The provision has been opened up and expanded somewhat since the time that it was held to be constitutional by the Supreme Court in R. v. Levogiannis, [1993] 4 S.C.R. 475, [1993] S.C.J. No. 70 (S.C.C.). It no longer requires that a conclusion of necessity be made and it is sufficient if the order would facilitate the giving of a “full and candid account.” Furthermore, the last clause, “or would otherwise be in the interest of the proper administration of justice” has been added as a second objective.

[21] In order to meet the prerequisites of the provision, the Crown relied upon the complainant’s evidence on the trial before the jury and also called evidence from the officer in charge, Officer Long. Officer Long said that she had been contacted by the complainant on the weekend after the commencement of defence cross-examination. The two had a 9 minute phone conversation on Saturday, November 20, 2021. The officer took no notes of the conversation but was planning to make notes at some indeterminate juncture in the future. But she never did. She was only able to give the gist of the conversation. The conversation was not previously disclosed to the defence. In the circumstances, the officer’s account of the conversation was unreliable and did not add anything significant to the Crown application.

[22] In the conversation, the complainant requested that she be permitted to testify behind a screen. Apparently she said that she had heard about this option from the Crown at the preliminary hearing (not Mr. Mullins). Her complaint was that she was “triggered” by testifying in front of Mr. Y. She was having trouble testifying in front of him.

[23] The Crown pointed to several factors from ss. 3 to support their request. The Crown notice grouped the submissions according to the factors. The letters in the notice correspond to the letters in the provision:

(b) … the witness testified to having medical diagnoses of PTSD, sleep disorder, and other mental health issues related to the alleged offences. The stress of testifying, especially in view of the Respondent, is likely deleterious to the management of these medical conditions, inhibiting the ability to give a full and candid account.

(c) The offences alleged are of physical and sexual violence over a period of years. As noted by the Supreme Court of Canada in R. v. R.V., 2019 SCC 41, at para. 33, “Testifying in a sexual assault case can be traumatizing and harmful to complainants”.

(d) The witness was previously in an on and off intimate partner relationship with the Respondent for several years. They have 2 children together. The witness is the alleged victim in this case. Her testimony highlights a great deal of pain and harm that she associates with her relationship with the Respondent.

(g) The order sought is consistent with the spirit and intention of the Canadian Victim’s Bill of Rights and the testimonial aids provisions of the Criminal Code, which are present to assist the truth seeking function of the Court by assisting witnesses in giving their evidence or by making the courtroom a place where witnesses are able to more comfortably give evidence. The liberal, but judicious, use of such orders facilitates the high societal interest in encouraging complainants of sexual violence to come forward and testify about their experience in a way that does not negatively affect their well-being.

(h) A crucial factor that should be considered in deciding this application is the witness’s trial testimony thus far, particularly during cross-examination. The witness’s testimony has been punctuated by intense emotional outbursts that have sometimes halted court proceedings. She is routinely seen to [be] crying and has been at times absolutely overcome by emotion. At times, the witness can be seen to be shaking uncontrollably while giving her testimony. At times, the witness appears to be distracted by viewing the Respondent, and sometimes appears to be speaking directly to him when describing the alleged offences and their relationship.

[24] The Crown concluded in their notice of application,

The foregoing factors strongly support the exercise of the Court’s discretion in granting the application. Permitting the witness to testify behind a screen or other device will, on a balance of probabilities, facilitate her giving a full and candid account. It is also in the interests of justice in hopefully moving the remainder of the witness’s testimony forward expeditiously and in a way that least impacts her well-being.

[25] The factual observations contained in the Crown’s submissions are by and large supported by what occurred in court. However, I denied the application for two main reasons: 1. Ms. K. was not in my view impeded from giving a full and candid account by being able to see and be seen by Mr. Y.; 2. The emotional turmoil evident in Ms. K’s evidence, based on what I observed in court, was not a result of Mr. Y’s presence so much as the subject matter of her testimony.

[26] On the first issue, Ms. K. was exceedingly vocal during her evidence and displayed no degree of hesitancy. As the Crown’s notice documented in (h) of his application, she did break down several times and was overcome by emotion. But there was no sense that she was hampered in giving her account by the accused’s presence. If anything, the opposite is true. When she did address Mr. Y. directly on one or two occasions, there was no trace of reluctance. Ms. K. unburdening of herself in front of the jury appeared to be facilitated by Mr. Y’s presence as opposed to being frustrated or hindered by it. I do not agree with the Crown that the complainant addressing the accused directly supported the order sought.

[27] On the second issue, along the same lines, it did not appear that the presence of the accused caused fear in the complainant or changed in any discernable way the substance or tenor of her evidence. In the end, for these reasons, in my view the screen was not shown to be a measure which would facilitate a full and candid account. Nor would the screen “otherwise be in the interest of the proper administration of justice.” They did not rely heavily on this clause and advance no other reason for the screen other than protecting the complainant’s emotional state. Simply because the complainant desired the screen part way through her cross-examination was insufficient reason to grant the application. It is difficult to attribute her volatile emotional state to the presence of the accused. It was much more all-encompassing than that.

[28] Some observations with respect to Ms. K’s demeanour on the witness stand are required. The principles governing trial judge’s treatment of demeanour evidence are well-established: R. v. G.M.C., 2022 ONCA 2 (Ont. C.A.) at para. 63-71; R. v. Hemsworth, 2016 ONCA 85, [2016] O.J. No. 505 (Ont. C.A.) at paras. 44-45; R. v. Rhayel, 2015 ONCA 377, [2015] O.J. No. 2675 (Ont. C.A.) at paras. 85, 88-89 and 92-93; R. v. A. (A.), 2015 ONCA 558, 327 C.C.C. (3d) 377 (Ont. C.A.) at para. 131; R. v. Gostick, [1999] O.J. No. 2357 (Ont. C.A.) at paras. 15-18; R. v. Norman, [1993] O.J. No. 2802 (Ont. C.A.), at paras. 53-55; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433 (S.C.C.) at paras. 139-145, 180 per Binnie J. dissenting.

[29] First and foremost, a cautious approach is necessary. Demeanour is soft evidence. It is affected by a myriad of factors often hidden well below the surface and difficult for a trial judge to ascertain: R. v. Faryna and Chorny, [1951] B.C.J. No. 152 (B.C.C.A.), at paras. 10-11. For this reason, demeanour cannot occupy a central or disproportionate part in the credibility or reliability assessment. Exclusive reliance on demeanour is unsafe and prohibited by the jurisprudence. This is particularly true in the case of the demeanour of the accused: see my earlier case of R v. B.G., 2021 ONSC 6248 (Ont.S.C.) at para. 16.

[30] At the same time, the Supreme Court of Canada has said in R. v. S. (N.), 2012 SCC 72, [2012] 3 S.C.R. 726 (S.C.C.) at paras. 26-27,

Changes in a witness's demeanour can be highly instructive.. Being able to see the face of a witness is not the only — or indeed perhaps the most important — factor in cross-examination or accurate credibility assessment . But its importance is too deeply rooted in our criminal justice system to be set aside absent compelling evidence.

[31] In order to have any significant value, demeanour evidence must form part of a larger fact-finding whole. An assessment of demeanour, at its highest, is merely one strand in the fabric of a credibility assessment. In this case, I have found that Ms. K. had a large reservoir of anger and animosity against Mr. Y. Based on both of their evidence in this trial, it was richly deserved because of his poor treatment of her. But key to this, her motive obscured a clear-eyed assessment of the veracity of her allegations. That was significantly more important than any demeanour evidence could be.

[32] Demeanour can support other credibility findings but rarely if ever would be strong enough to have independent importance. In this trial, Ms. K’s demeanour was of the same piece as the content of her evidence and served to confirm and buttress the evidence of animosity. Her anger was palpable in her words; it was also plainly evidenced in her demeanour. Ms. K.’s rapid changes in demeanour were manifest throughout the cross-examination, a cross-examination that was conducted fairly and respectfully. She was an exceedingly demonstrative and emotional witness in-chief and even more so in cross-examination. On several occasions, she could not continue. She rested her head on the witness stand and was unresponsive. The jury had to be excused for a break several times.

[33] As stated in the Crown screen application excerpted above, “The witness’s testimony has been punctuated by intense emotional outbursts that have sometimes halted court proceedings. She is routinely seen to [be] crying and has been at times absolutely overcome by emotion.” Ms. K. testified that she suffered from Post-Traumatic Stress Disorder and said it was largely a result of how she had been treated by Mr. Y. She was very agitated and perturbed. At times she was virtually hysterical. At one point in cross-examination, Mr. Saini put to Ms. K his client’s later testimonial version of the child seat incident and asked her whether it was true. Ms. K. went into a kind of shock. She became wide-eyed and was evidently stunned by hearing the contrary version. Her response was far out of all proportion to the content of the questions.

[34] Our hearts went out to Ms. K. Eventually, at the request of the defence, a judicial colleague conducted a mid-trial conference with counsel. In light of the problems and the disruptions caused by Ms. K’s evidence, counsel agreed to discharge the jury and continue judge alone.

[35] In these circumstances, Ms. K.’s demeanour, taken in the context of the content of her evidence and her anger against Mr. Y., was a factor weighing against her credibility. Of course, an emotional witness is not by itself an incredible witness. After all, the allegations in this case were very serious and were committed against a very young woman. Negative emotions against an accused in a case like this one are almost always present in some form or another. But after a certain point, there is a need for the trier of fact to be cautious about the acceptance of the witnesses’ evidence. Here, the sheer volatility of Ms. K.’s evidence played some part--although a subsidiary rather than a dominant part--in my credibility assessment.

[36] Mr. Y. testified in his own defence and denied the allegations. He said that he asked Ms. K. for a car seat while in her apartment but that she said no. Mr. Y. said that he knew he was wrong not to have proper child seats but he was going to drive slowly to Walmart to buy them. According to his evidence, during the argument Ms. K. hit him in the chest and shoulder. He was blocking her way into the car. Ms. K. became hysterical and was crying and yelling. Mr. Y. concluded that it no longer made sense to take the children so he turned off his car and Ms. K. took the children out of it. He drove away. With respect to the other two counts in the indictment, Mr. Y. offered a straight denial.

[37] I ruled Mr. Y’s statement to the police voluntary prior to the trial commencing before the jury. Nothing in the evidence raised any concern with respect to threats of prejudice, hope of advantage or an atmosphere of oppression. None were argued. The concern raised by Mr Saini was that not all police officers in contact with Mr. Y. testified about their dealings with him. The crux of the argument was that there was no evidence with respect to the accused’s previous attendance at the police station about a week earlier. There could have been inducements or threats which continued into the second interview.

[38] There were several flaws in this argument. I agree with Mr. Mullins’ position that in a case like this where there was no suggestion of anything untoward by persons in authority, there is effectively an evidentiary onus on the defence to raise evidence of an inducement or oppression. Speculation cannot stand in the way of proof beyond a reasonable doubt: R. v. Shergill, [1996] O.J. No. 4564 (Ont. Gen. Div.) at paras. 12-14; R v Rytel, [2019] O.J. No 677, 2019 ONSC 1014 (Ont.S.C.) at paras. 5-8.

[39] In reference to the interaction with the police the week before, the defence had a transcript of the previous interview but did not put it forward on the Crown’s voluntariness application. If there had been something improper, I infer it would have been raised. As it was, there was no evidence with respect to the interaction with the police the week before. Again, only speculation could lead to doubting the voluntariness of this statement. The defence could only succeed with this argument if tainting by reason of the previous interaction with the police could be demonstrated: R. v. Plaha, 188 C.C.C. (3d) 289 (Ont. C.A.). That is not possible on this record.

[40] Mr. Mullins’ cross-examination of Mr. Y. was efficient and well-focused. One point Mr. Mullins made with reference to the car seat incident was that there was a key inconsistency between Mr. Y’s police statement in which he said that he asked for the car seat downstairs and his evidence in this trial where he said he asked while still upstairs in the apartment. Mr. Mullins argued that this did not make sense and that the argument must have been precipitated once the car seat was requested in the parking lot of the building. On balance, Mr. Mullins was probably correct but the discrepancy given the lengthy passage of time did not amount to much.

[41] The cross-examination did not turn up any major credibility problems. In a pure credibility context, as this was, it is often difficult to make substantial inroads. There was no firm evidence with which to confront the accused. While often a meandering cross-examination is undertaken to hopefully stumble across a discrepancy or implausibility, when this roaming approach is unsuccessful, the strength of the witness’ evidence is often strengthened, not weakened. Mr. Mullins approach was the right one but, in the end, Mr. Y.’s credibility was not significantly diminished.

[42] While I would not say that I positively believe Mr. Y., in the context of all of the other evidence, his evidence does contribute to some degree, along with the flaws in the complainant’s evidence, to my finding of a reasonable doubt. One of the problems with a rigid and dogmatic adherence to the three-step W.D. approach is that step 2 (having a reasonable doubt based on the accused’s denial) and step 3 (having a reasonable doubt based on the complainant’s evidence) may appear to be segregated and isolated from each other. They cannot operate in tandem. That of course is fundamentally incorrect.

[43] In this instance, the complainant’s evidence was not strong. Along with this, the accused’s evidence, although not believed, contributed to the final state of being in a reasonable doubt. Both aspects were important and worked in conjunction to arrive at not guilty verdicts.

[44] It is for these reasons that the accused was acquitted of the counts in the indictment against him.

D.E. HARRIS J. Released: March 31, 2022