SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 21-10000449-0000

DATE: 20220517

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

C.E.

Defendant

Michael Cole, for the Crown

Daniel Marcovitch, for the Defendant

HEARD: April 25-26, 2022

P. CAmpbell j.

Background

[1] The defendant, C.E., is charged with one count of sexual assault alleged to have been committed by him on the complainant, R.S., in August 2000, in Toronto. R.S. testified that C.E., a family friend, raped her in her home one day when he arrived to visit one of her sisters and found her in the residence alone. C.E. denied the assault and said that the visit to the home, in the circumstances described by R.S., never took place. There were no other witnesses called and no exhibits tendered.

[2] Counsel for both parties submit that I should consider the case within the evaluative paradigm created by R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, asking myself whether the evidence of C.E. is credible and should be believed; if not, whether, though not affirmatively accepted, it is capable of raising a reasonable doubt about his guilt; and whether, if his evidence is wholly rejected, the balance of the evidence (in this case from R.S.) is capable of proving C.E.’s guilt beyond a reasonable doubt.

[3] The Crown, citing the judgment of Justice Doherty in R. v. J.J.R.D., 2006 CanLII 40088, 218 O.A.C. 37 (C.A.), at paras. 44-55, and the helpful analysis of Justice Duncan in R. v. Jaura, 2006 ONCJ 385, at paras. 10-22, emphasizes that the stages of the W.(D.) analysis focused on the evidence of the defendant are not watertight compartments to be assessed separately from the strength and cogency of the Crown evidence. A conclusive belief of powerful prosecution evidence can, in itself, support the complete rejection of defence evidence — or other exculpatory evidence — even if there are no identifiable flaws in the defence evidence, examined in isolation, that undermine its credibility. See also: R. v. Martin, 2017 ONCA 322, at paras. 17-21; R. v. J.W., 2014 ONCA 322, at paras. 25-32.

[4] I accept that this is the correct approach to the evidence and issues in this case. The case depends very much on the credibility of the two witnesses I have heard and the inferences I can safely draw from their testimony.

Evidence of the Complainant

[5] R.S. is now 41 years old and holds a managerial position at a major financial institution. She is married with three teenage children. She immigrated to Canada from Grenada when she was 12 years of age, at the same time as her mother and three sisters. She spent most of her teens in Alberta though she also visited Toronto.

[6] R.S. testified that on one such visit to Toronto, in the summer of 2000, she attended the baptism of one of her nephews, the son of her sister. C.E. was present at a get-together connected with the baptism held at the family’s apartment on St. Clair Avenue West. R.S. did not know C.E. before that encounter, though she accepted that he was friends with her siblings.

[7] R.S. described an offensive encounter with C.E. at this event. After she said “hi” to him, he touched her hand. She pulled her hand away, saying, “Don’t touch me”. To this, C.E. responded, “Oh you think you are all that, but [or “all”] your vagina is black.” She walked away from him and paid him no further attention.

[8] The second time R.S. saw C.E. was in August 2000. He came to the door of the St. Clair apartment and asked to see R.S.’s sister. She told him her sister was not home at which point he asked to use the washroom. She let him in. Once inside, R.S. testified, C.E. began to look around the apartment, from which he was able to determine that no one else was home. Before allowing him entry to the washroom, R.S. went in herself to “tidy” it since it was used by herself, her mother and two of her sisters.

[9] While she was in the washroom, C.E. entered and pulled her out by the hand. She thought at that point that he was simply very eager to use the washroom. However, she quickly realized he was pulling her into her sister’s bedroom. She asked him what he was doing and told him to stop but he did not. He pushed her onto the bed, ignoring her further protests, and pulled her pants down to her knees. He then got on top of her, holding her down with his weight and holding her hands with one of his. He was taller and much heavier than her.

[10] In this position, C.E. penetrated R.S. while she lay on the bed, frozen and not consenting to the sexual contact.

[11] C.E. ejaculated inside her and then got off her. She told him that she had not consented to what had happened, and he responded, with a smirk, “Let me go. You women always know how to get men in trouble.” With that, he left the apartment.

[12] R.S. then took a bath. Later that day, her mother invited her to go shopping. She recalled — very clearly when she testified — trying on a dress in a store dressing room and “all that man’s sperm leaking out of me”.

[13] R.S. did not tell her mother what had happened. Though they had a close relationship, her mother was not at the apartment regularly and R.S. had been living in Alberta while her mother was in Toronto. R.S. testified that she was embarrassed and ashamed by the assault and told none of her family about it for almost 20 years.

[14] The first person she told about what had happened was her boyfriend at the time, who is now her husband. Their relationship had begun in December 2000 and she told him about the assault in March or April 2001. The backdrop of the conversation was her bitterness at that point, which he had detected and referred to as her “hatred toward men”. I understand from her evidence that R.S. disclosed the assault to him so he could understand these feelings on her part. She did not tell him who had assaulted her nor the particulars of what had occurred.

[15] The next time R.S. spoke about the assault was to her youngest sister, in April 2020. Her sister was speaking about a recent encounter she had had with C.E. at a Caribbean Heritage Day celebration where he asked her to go to a club and then get a hotel room to have sex with him. He had made this proposal with her sister’s child present.

[16] Upon hearing this, R.S. broke down in tears and warned her sister to stay away from C.E. When her sister inquired why she should do this, R.S. told her what had happened in 2000. Her sister was shocked, wondering why R.S. had kept this to herself for so long. R.S. explained that she had been embarrassed and ashamed.

[17] At this point, R.S. spoke about confronting C.E. through his link to their other sister in Alberta, who would have his contact information. This confrontation did not occur because her sister thought it was not a good idea. She advised R.S. to take the matter to the police.

[18] About two months later, in July 2020, R.S. went to the police and made a statement which set in motion the prosecution of C.E.

[19] The cross-examination of R.S. touched on a number of themes in the case, several of them grounded in the two statements she has provided about her allegations. Her first statement was given to the police on July 27, 2020. Her second statement was more recent, in March 2022, when she was questioned by Crown counsel, Mr. Cole, with a Victim Witness Assistance Program (“VWAP”) staff person also present.

[20] It emerged during cross-examination that in her initial statement to the police, R.S. had said that she had disclosed the assault to her boyfriend four or five months after it had happened, not four or five months after the commencement of their relationship, as she had testified. Challenged on this, R.S. said her statement was incorrect and her testimony was accurate — she spoke about it to her boyfriend four or five months after their relationship began, which would have been eight or nine months after the assault itself.

[21] In questioning on the aftermath of the assault, R.S. said C.E. had not threatened her or warned her not to call the police. She did not see a doctor even though, she said, the penetration had caused burning and itching. She took no measures to ensure she was not pregnant, such as Plan B — a decision she attributed to her naïveté as a 19-year-old at the time of the assault.

[22] Questioned about her previous acquaintance with C.E., R.S. said that she did not recall meeting him before the baptism in 2000 — he was a stranger to her at that time. Though C.E. would testify later that he knew R.S. and her siblings in Grenada, where they lived in the same village and went to the same school, it appears she was only five or six years old when he emigrated to Canada. It thus seems plausible that he would remember her but she would not remember him.

[23] Counsel for C.E. questioned R.S. closely on the account she gave to the police about her encounter with him at the baptism event in her July 27, 2020 statement. At that time, R.S. had told the police that she had said “hi and whatever, that was it, more or less”. In her 2022 recent statement, however, she had told the Crown and VWAP representative what she also said in her testimony — that C.E. took her hand, she pulled it away and he said, “You think you’re all that but your vagina is black.” When pressed on this apparent contradiction, R.S. said that she knew men of C.E.’s age to be frequently vulgar and to want to touch women, and so her summary of the encounter to the police — that she said “hi or whatever, more or less” — was accurate.

[24] R.S. also acknowledged that in her July 27, 2020 police statement, she had said she could not recall if C.E. had ejaculated during the assault in the apartment. This, she agreed, was very different from her testimony at trial where she said, for the first time, that she had leaked C.E.’s ejaculate onto the floor of the store’s dressing room soon after the assault. R.S. accounted for the discrepancy by explaining that in the two years since her original complaint, she had had a long time to “ponder and think” about the event. She accepted that her police statement did not mention shopping with her mother on the day of the offence but repeated that this had happened.

[25] Defence counsel played in cross-examination a segment of R.S.’s videotaped statement of July 27, 2000. In this passage, the investigating officers asked her to provide details of the sexual assault she was reporting, pointing out that to make a case against C.E. more detail would be required. For more than eight and a half minutes, R.S. remained almost mute, her eyes toward the floor, as she was questioned about what had happened. She ultimately said that the little information she had provided was all she could remember. When it was suggested at trial that her inability to provide details of her allegations was due to their falsity, she responded vehemently, denying that she would “wrongly accuse” anyone and asking why defence counsel thought she was coming to court: “You think this is fun?”

[26] In apparent anticipation of C.E.’s testimony, defence counsel questioned R.S. about whether she spoke around this time about him making a lot of money. She denied any such discussion. That line of questioning went no further; in particular, defence counsel never suggested that R.S. had invented a story for possible financial gain.

[27] R.S. also accepted that in her original account of her 2020 conversation with her younger sister, which led to her decision to approach the police, she did not mention the detail that C.E. had invited her sister to go to a club before going to a hotel for sex. She attributed the added detail to the probing questions of Crown counsel in the 2022 interview.

[28] To the suggestion that her account of being raped by C.E. was fabricated, R.S. said she had struggled with the decision to report the crime and did not want to ruin his life — she believes that “everyone deserves a second chance”.

[29] Though she was uncertain about details of any encounter with C.E. in the years between the assault and her report of it to the police, she recalled driving a car with one of her sisters while C.E. spoke to the sister over a speakerphone. When questioned about a time seven years ago when, it was suggested, C.E. came to her home near Canada’s Wonderland, she agreed that something of that nature had occurred, though she could not recall when.

[30] At one point in the cross-examination, R.S. accepted that in the years after the assault, there were “a few contacts here and there” with C.E., associated with her sister’s regular visits to Toronto from Alberta. She said she was “not going to lie” about this, though she ultimately insisted that her only contacts with C.E. after the assault were the single time he came to her door, when they did not speak, and the speakerphone call in the car when they also did not interact. R.S. did, however, in somewhat confusing testimony on this point, accept that for the 20 years following the assault she had had some “interactions” with C.E., always associated with her sister’s friendship with him.

[31] In re-examination, R.S. elaborated on why she had provided more detail in the March 2022 interview and in her statement to the police two years earlier. She said that she had felt comfortable with Mr. Cole, who believed her, and that she was as a result more inclined to talk to him.

Evidence of the Defendant

[32] C.E. was born in 1971 and will turn 51 this year. He lived in Grenada, in the same village as R.S.’s family, until he left for Canada in 1987, at age 16. He has been married for 20 years and holds down two jobs, working with an automobile dealership by day and a courier company by night.

[33] C.E. said that he knew R.S. from their years in Grenada where they went to the same school and played in the same woods. He was most friendly with her two older sisters.

[34] C.E. denied both of the episodes described in detail by R.S. He testified that he did not touch her or speak to her in the crude manner she recounted at her nephew’s baptism celebration and, as far as he knew, he had not been at the event at all. While he did visit the family’s St. Clair apartment, he was never there with only R.S. present and he never sexually touched her. He was shocked when he heard the allegations against him.

[35] C.E. also denied having the conversation in 2020 with R.S.’s younger sister inviting her to go to a club and then a hotel room with him for sex, which R.S. said became the impetus for her report to the police. C.E. said R.S.’s younger sister was “like a little sister” to him.

[36] C.E.’s counsel asked him why, in his view, R.S. had made up her allegations against him. He responded that he believed that R.S.’s family thought he was affluent and was making “big money” from his two jobs. The implication of this testimony was that R.S. and her family thought a successful prosecution would support a lawsuit.

[37] C.E. testified that he had last seen R.S. when he went to her home near Canada’s Wonderland to pick up something from her sister. They chatted briefly, with R.S. asking him how he was doing and him responding “fine”. He had not seen her, or anyone else in her family, since he was accused of the sexual assault.

[38] Over the years following 2000, he had maintained a good relationship with R.S.’s family, though he saw them less regularly due to his heavy workload. He would see the eldest sister most frequently, on occasions when she visited Toronto from Alberta.

[39] C.E. acknowledged that he had a criminal record from 2008, arising from an assault causing bodily harm on his wife to which he pleaded guilty.

[40] Crown counsel cross-examined C.E. about his belief that the allegations of R.S. could be motivated by financial gain. He first said that he was a “wealthy” man and testified that he earned about $150,000 a year. When pressed about being wealthy, however, he quickly retreated from that claim and said he was a “poor man”, though hard-working. He agreed that he had debts and did not own a “fancy” house or car nor gold or jewelry. He emphasized that he thought R.S.’s family believed him to have money because he was known to work very hard at a time when her family members were not employed themselves. C.E. accepted that R.S. is well-employed now and could not answer why she would wait 20 years to make false allegations to obtain money from him. He ultimately acknowledged that the desire for money from him was “the only thing [he could] think of” to explain the allegations, stressing, “I didn’t do it.”

[41] In questioning on his evidence that he “played” with R.S. in Grenada, when she was 11 years younger than him, C.E. said that they — meaning the village youngsters, including R.S. and her family — had all played together. He gave as examples playing marbles and playing in the woods.

[42] C.E. said he had regularly visited R.S.’s family at their home on St. Clair Avenue West. They were all friends. He stopped communicating with them as regularly after taking a second job as a courier, which was a night job and began on August 20, 2000. His contact with his circle of friends lessened after that. He said this happened “over the years” as relationships “fell away” with other things taking priority. He clarified that R.S.’s family spoke about him having money and earning a lot in the period shortly after he took the second job.

[43] C.E. agreed that in June 2000, he would have been free to attend a family baptism but maintained that he did not do so. He also denied knowing that R.S. had ever worked as a model, and although he remembered her looking at “books” that featured models, he had never heard her say she was a model.

Legal Principles

[44] The Crown can secure a conviction only if it proves each element of the offence charged beyond a reasonable doubt. That requires evidence of sufficient quality to prove the essential facts to the point where I, as the trier of fact, am sure of them. The evidence need not leave me with absolute certainty — a level of confidence rarely attainable in human affairs, including litigation — but it must remove any reasonable doubt that the defendant committed the crime alleged.

[45] Reasonable doubt can arise from weaknesses in the evidence, from a lack of evidence, or from evidence that tells against the inculpatory inferences contended for by the prosecution. On the other hand, proof to the required standard can rest entirely on testimonial evidence that I find to be credible and reliable, by which I mean given sincerely and honestly and from a witness with the opportunity to observe events, the capacity to remember them and the ability to recount them in court. There is a wealth of case law on the criminal standard of proof. I am guided generally by the Supreme Court of Canada’s treatment of the concept in R. v. Lifchus, 1997 CanLII 319 (SCC),[1997] S.C.R. 320, at paras. 23-39 and R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at paras. 238-243.

[46] The analysis prescribed by the Supreme Court in W.(D.), which I addressed at the outset of my reasons and which was commended to me by both counsel, is in substance an aid to clear thinking by a trier of fact about cases where there is evidence pointing toward guilt and evidence supporting the presumption of innocence. It serves to focus the trier’s attention on the three ways by which reasonable doubt can be identified in cases with competing bodies of evidence. This case, with the complainant and the defendant giving irreconcilably opposed evidence about the same issues, lends itself especially well to this mode of analysis, which asks whether the exculpatory evidence is believed or raises a reasonable doubt if not believed, and then focuses on whether the Crown evidence is sufficient to prove guilt if the exculpatory evidence is wholly rejected.

[47] Crown counsel’s reliance on the proviso that a firm and unshakable belief in the cogency of prosecution evidence can be a sufficient basis for entirely rejecting defence evidence to the contrary is supported by the authorities he cites and by others: see, for example, R. v. Vigon-Campuzano, 2022 ONCA 234, at paras. 24, 34-38; R. v. R.D., 2016 ONCA 574, at paras. 13-23. I acknowledge as well the cautionary note sounded by Justice Paciocco for the Court of Appeal in R. v. C.L., 2020 ONCA 258 at paras. 30-32, where he stressed that J.J.R.D. is, at bottom, a case about the sufficiency of reasons from the appellate perspective and not “a formula for overcoming facially unassailable exculpatory evidence”. I take from C.L. that if the Crown evidence is “so compelling that the only appropriate outcome is to reject the exculpatory evidence beyond a reasonable doubt and find guilt beyond a reasonable doubt”, then I should not give effect to the evidence of the defendant even if it has no apparent discrediting features.

[48] This is the approach I bring to the issues before me.

Analysis

[49] R.S. is a believable witness and an impressive individual. She gave clear and responsive answers and evinced emotions commensurate with the content of her testimony — a halting voice as she described the details of the rape in her sister’s bedroom and vehemence at the suggestion that her testimony was fabricated. Her demeanor in court struck me as compatible with her factual assertions, which contained no details that I considered either exaggerated or inherently implausible. These factors weigh, to some extent, in favour of her credibility, though they cannot, of course, be assigned decisive weight: R. v. Hemsworth, 2016 ONCA 85, 334 C.C.C. (3d) 534, at paras. 44-45.

[50] C.E. did not give evidence with the same impact. His account contained no details about the alleged encounter with R.S. at the baptism in June 2000 or in her home in August 2000. This is because he denied that either encounter took place. C.E.’s story was not capable of being told with striking details or the “ring of truth”. A flat assertion that events alleged to have occurred 22 years ago did not occur provides a trier of fact little to work with in assessing its forensic value.

[51] Insofar as I could assess how C.E. gave this limited evidence, however, I found nothing that marked it as false or fabricated. He did not make claims of certitude about events that would be hard to recall with certainty. He did not offer precise details of a kind which were not likely to be lodged in the memory of an innocent person. He maintained his innocence in a consistent and measured manner. There was nothing in his demeanor or delivery which set his testimony apart from what I would expect of a man called on to deny accusations which puzzled and troubled him but which he knew to be untrue.

[52] An assessment of the way in which the two witnesses presented themselves in court provides me with no meaningful way of assessing the credibility of either. By this measure, both could easily be considered likely to be telling the truth.

[53] R.S. and C.E. have, of course, different potential motivations and interests in testifying. R.S. claims no malice toward C.E., saying, somewhat curiously, that “everyone deserves a second chance” while giving evidence that could send him to prison. I took from this, however, no more than that she was claiming a generally compassionate and forgiving disposition. Her claimed motivation was that her younger sister recounted an exchange with C.E. in which he crudely propositioned her, prompting both alarm and offence in R.S. and causing her to disclose what she had largely kept concealed to that point, apart from her very non-specific account to her boyfriend (now her husband) in early 2001. The motivations she claimed for these two disclosures strike me as believable, though neither her husband nor her sister confirmed the content of the disclosures or the apparent reasons for them. Her decision to provide a statement once she had told her story to her sister in 2020 and received advice to go to the police is equally understandable. The law counsels against drawing inferences from the timing of sexual assault disclosures by complainants: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at paras. 60-65 and I have not done so in this case.

[54] The law also makes clear that absent proof that a complainant has no motive to lie, the inability of the defence to demonstrate a motive to lie should not serve to boost the complainant’s credibility: R. v. S.S.S., 2021 ONCA 552, though it is a factor which, within limits, a trier of fact is entitled to consider in assessing evidence: R. v. Ignacio, 2021 ONCA 69. In this case, I hesitate to allow the presumption of the accused’s innocence to be diluted by an inability on the part of the defence to identify a convincing reason for lying on the part of the complainant.

[55] C.E., like virtually every accused person, has a motive to deny allegations of criminal conduct. It can be a means to avoid conviction, punishment and, especially in cases of sexual misconduct, shame. This motivation, of course, will be shared by innocent and guilty defendants alike. No defendant can appear in the witness box as a disinterested source of objective information, and a conscious effort should be made by triers of fact not to let latent suspicion of self-interest colour the evaluation of credibility. It is important to weigh credibility on other scales. If evidence is found to lack credibility, self-interest may be the reason. However, reversing the analysis and deeming a defendant to lack credibility because of his inescapable self-interest may unfairly discount the value of truthful testimony: R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at paras. 11-14.

[56] Though R.S. bears many of the hallmarks of a truthful witness, the defence pressed her to explain certain features of her evidence with some effect on her apparent credibility.

[57] I attach no significance to the difference between her police statement and her testimony about how much time passed from the assault until her conversation with her boyfriend about it. Her memory could easily confuse a period after the event itself with a period (mentioned in her statement) after the commencement of her relationship with her boyfriend when none of the dates were fixed, the time afterward was simply an estimate, and she was almost certainly trying in court to recall what she had said in her 2020 statement rather than drawing on current recollections of the months from August 2000 through early 2001.

[58] Defence counsel challenged the truthfulness of R.S.’s evidence on three alleged additions to her recollection over time. I find these to be of some weight in evaluating her evidence.

[59] In order of increasing significance, the first addition is to her account of what her younger sister reportedly told her about meeting C.E. in the park on the Caribbean Heritage Day event and being invited to have sex. In her original rendition, C.E. suggested to her sister that they go to a hotel for sex. In testimony, R.S. said that C.E. suggested they go to a club first, and then to a hotel for sex. This added detail is of little consequence in itself, but it does raise some concern about whether factual details are still emerging as R.S. retells her story and whether they may reflect invention or confabulation — the filling in of blanks in memory — rather than factual recollection.

[60] That concern is elevated regarding the second addition to her evidence over time. She included in her 2020 police statement an exchange with C.E. at the celebration of the baptism of her nephew in June 2020, but recounted only that she had said, “Hi or whatever more or less” to C.E. on this occasion. In her 2022 statement to Crown counsel, she first gave the much more striking account that she provided in testimony — after she said “hi”, C.E. grabbed her hand, she told him not to and he said, “You think you’re all that but your vagina is still black.” When asked to explain this contradiction, she maintained it was of no significance — to her, recognizing that men are routinely vulgar and prone to touching women, C.E.’s conduct and comments were no different from her having said “hi”.

[61] I find this variation in her accounts puzzling and her explanation difficult to accept. For R.S., the baptism event was effectively her introduction to a man she has no memory of from childhood. It included physically aggressive behaviour she found offensive and a remark that seems jarringly out of place at a family event associated with a baptism. If this conversation had happened as she described, I would expect her to have had a recollection of it when she spoke to the police after deciding in 2020 to report C.E. for raping her two months after the baptism. If her explanation in cross-examination had been that she was abashed to describe the vulgar insults, I would consider that more understandable than her dismissal of the entire exchange as unremarkable and the equivalent of a simple greeting. It seems to me that her precise recounting of the occasion now, in 2022, confirms her awareness that her description of C.E.’s words and conduct today is not comparable to “Hi or whatever more or less”.

[62] The third addition to R.S.’s evidence is the hardest to understand. In her 2020 statement to the police, she said that she did not know if C.E. ejaculated inside her during the rape she described in her family’s apartment. In testimony at trial, however, she said not only that he did ejaculate but that later that day, shopping with her mother, she noticed his sperm leaking onto the floor of a dressing room. This, on her account, occurred despite her taking a bath after the assault.

[63] Without speculating about psychological phenomena of which there is no evidence, I am not able to account for this discrepancy. If the very disturbing episode that she described in the store occurred, with her mother in the vicinity, it would highlight and reinforce in her memory the fact that C.E. had ejaculated during the assault and would make her uncertainty about this in her 2020 statement a significant contradiction. The description of this episode for the first time in her trial testimony, after two out-of-court statements omitting it, raises questions about the confidence that can be placed in her evidence which must, to support the conviction of C.E., be believed beyond a reasonable doubt.

[64] This observation is not tantamount to an affirmative finding that R.S. is either an unreliable witness or a dishonest one. There is at least one available psychological explanation for the omission in her statements of points that are of relevance to her narrative and would be expected to be included. She was silent for strikingly long segments of her initial police statement, even as the police asked for elaboration on her basic allegation of sexual assault. The silence could have been a defence against relating deeply painful information and it could have extended through the second statement which she recalls as much more comfortable.

[65] That explanation is possible but it is not grounded in any evidence, including in what R.S. said when cross-examined. As a fact-finder, I am not able to disregard such a puzzling inconsistency in her account on such a speculative basis. It is possible, and of concern to me, that new allegations are coming to her through some inscrutable subconscious process raising questions about the reliability of her memory for events half a lifetime ago. It is also possible that they reflect fabrications on her part, through the addition of details to her narrative of her two main encounters with C.E. In the end, what is significant is the uncertainty this creates about taking her evidence as conclusive proof of the allegation of sexual assault.

[66] Crown counsel argues that R.S.’s account to her boyfriend of being sexually assaulted, given some months after August 2000, removes any concern arising from inconsistencies in, or additions to, her statement and testimony. He likens this disclosure to the diary entry which the trial judge had found to raise confidence in the account of the complainant in J.J.R.D., at paras. 11-14, 25, 49-54. I do not find that comparison persuasive. The diary entries recalling the father’s sexual abuse of his daughter in J.J.R.D. were written in the immediate aftermath of the offence she alleged to have occurred, before the potential motive to fabricate crystallized, and they included several of the salient details in her testimony. To read the appellate judgement in J.J.R.D. is to appreciate the impact the diary would inevitably have on any reasonable fact-finder and how effectively it answered any concern about either deliberate falsehoods or distortions of memory or perception.

[67] In this case, the prior statement that is contended to restore confidence in the complainant’s account was given eight or nine months after the alleged event. It was given in response to a perceived need for R.S. to explain to her boyfriend her “bitterness” toward men. It did not specifically identify the abuser she was speaking of and included no details about the offence against her. By every measure, it does not compare to the virtually contemporaneous diary entry that the trial judge in J.J.R.D. found to answer the challenge to the child’s credibility, and which the Court of Appeal found to explain the judge’s acceptance of her evidence and his corresponding rejection of the accused’s. I have no basis to find that what R.S. told her boyfriend corresponded to her trial testimony on the points I have highlighted — or on any other points — and no confirmation independent of her that it was about C.E. or about the rape in her apartment. If there is doubt about the truth of R.S.’s evidence now, resting in part on inconsistencies in her accounts over time, it is not erased by her evidence about what she told her boyfriend in 2001.

[68] A theme addressed by both witnesses was the nature and extent of C.E.’s contact with R.S. and her family in the years following the alleged events of 2000. Broadly, they both said that they had no ongoing bilateral relationship and that C.E. had some continuing contact with one of R.S.’s older sisters, whom he had known since their youth in Grenada and to whom he was closer in age.

[69] R.S. testified that she saw C.E. only one time that she could recall after the assault, when he came to her home near Canada’s Wonderland in 2019 to see her older sister, then visiting from Alberta. When questioned about whether she had seen him on other occasions, her evidence came the closest that I observed in the trial to evasiveness, as she said she was “not going to lie” about having occasional contact with C.E. during those years, then returned to her position that she only saw him once at her home and heard him speak once over her sister’s phone in a car. By comparison, C.E. gave straightforward testimony that he saw R.S. in a family context over these years, though infrequently because his work constrained his social life. It is possible that R.S. wished to minimize the incidence of encounters she had with C.E. where she did not avoid him or complain about him.

[70] This is, in my view, a matter of only minimal significance since both the evidence and the inference that might be drawn from it are ambiguous. I would place it in the same category as other challenges to R.S.’s credibility resting on discrete issues in the case. Her choice not to go to a doctor is common to many sexual assault victims who often seek medical attention only at the urging of family, friends or authorities. Her choice not to disclose what had happened to her sisters may be answered to some degree by her evidence that she did disclose it to her boyfriend, but is also explicable by a desire not to report a crime at the hands of someone apparently well-regarded by her family — or a desire not to speak about it at all.

[71] I place no weight on R.S.’s inability to provide precise details of the mechanics of the assault. If it took place, it was long ago and the fact of the assault is far more likely to impress itself on her memory than details of how she was restrained, overpowered and violated.

[72] The argument of defence counsel that R.S.’s apparent anger at the suggestion she had fabricated her evidence was feigned is also not one that I can accept. Outbursts of emotion by a witness can easily be contrived to impress a judge or jury and cannot be assigned significant weight in support of credibility (in contrast to spontaneous and contemporaneous indications of emotional distress which are potentially more telling). But insofar as I could evaluate R.S.’s claimed indignation at the suggestion she was lying, I saw no basis to conclude it was not genuine.

[73] I am less certain what to make of the long passage in R.S.’s July 27, 2020 police statement that she was cross-examined on. She declined to answer questions or provide details for the police, claiming she could not do so, while looking pained at the process. To read a lot into this unusual behaviour would, I think, descend into speculation and question-begging. If R.S. was genuinely a victim of sexual assault, that could account for her reticence in the face of probing on the subject. If she was not able to give credible and consistent answers because her story was false, that might also account for her long silences and refusal to provide details. In the end, I have attached no significant weight to evidence of such ambivalent effect.

[74] The evidence of C.E. demands a different form of analysis. His defence is that nothing happened with R.S. — he did not see her at the baptism event or alone in the apartment and had only glancing social contact with her over their years in Canada. This both undermines and shields his credibility. On the one hand, he cannot give the sort of evocative account of dramatic and traumatic events that R.S. offered. On the other hand, because he offers no details, he cannot as easily be challenged on grounds of consistency or plausibility. My broad assessment of C.E.’s evidence is that he appeared like someone who did not commit a crime and but had little to offer by way of detail or explanation. His answers were responsive, his tone was level, and he did not seem to exaggerate or seize on chances to take jabs at the complainant or embellish his own rather sparse narrative.

[75] The low point of his testimony was his attempt to explain, at the invitation of his lawyer, why he thought R.S. was making up a story that he sexually assaulted her. He suggested it was because she thought he was a man of means and, I gather, she could successfully sue him if her allegations were accepted by the court.

[76] This theory was never put squarely to R.S. in cross-examination and she had no chance to address it. If she had had such a chance, she could have pointed out that as a 41-year-old manager at a financial institution, she was much less likely to need the money she might get from a trumped-up lawsuit than as an aspiring model in 2000, when she had said nothing about the offence.

[77] Crown counsel pursued this point, getting C.E. to admit that he was not wealthy, had debts and lacked the conventional trappings of success. The most that could be said about the awareness by R.S.’s family of C.E.’s economic circumstances was that they knew he worked hard and commented on it.

[78] C.E.’s defence was not enhanced by this approach. The question of what he thought motivated the complainant was, in form, improper but it was not objected to, and I allowed it to be answered in the expectation that it might lead to evidence of some value. For the reasons I have set out, it did not. The likeliest motivation for R.S. making her complaint in 2020 is the one she offers, arising from her conversation with her younger sister — though this is not firmly proved in the evidence. Hope of financial gain is far enough down the list of possible motivations that it cannot be taken seriously.

[79] As a matter of law, C.E. could not have been challenged by the Crown to explain why R.S. would lie: R. v. G.H., 2020 ONCA 1, at paras. 24-31; R. v. T.M., 2014 ONCA 854, 318 C.C.C. (3d) 421, at paras. 37-38. An accused is not likely to know the answer to such a question and is not required to argue his own case. C.E. would have been well-advised to advance his defence with that legal principle in mind rather than ascribing a motive to R.S. on such a slender and speculative basis.

[80] After reflecting on the shortcomings of C.E.’s testimony in this area, I have concluded that it does not have a significant effect on my evaluation of his credibility in denying the truth of the allegations against him. It seems plausible to me that people he knows in R.S.’s family did mention that his two jobs were making him prosperous. I do not doubt that he earns the income he claims which, in general terms, amounts to “good money”. If he was in fact innocent, he could well have cast around for some explanation of why he was being accused falsely and settled on an attempt by his accuser to gain economic advantage. That this theory makes little sense regarding R.S., given her own economic circumstances and the timing of her allegations, does not mean that he did not come to believe it if he is indeed innocent. If R.S. had a motive to give false evidence, it is more likely to lie in such opaque areas as her relationship with her boyfriend in 2001 or her reaction to her sister’s account in 2020 than in anything C.E. could give meaningful evidence about. I am approaching the case on the footing that there is no evidence at all of a motive by R.S. to fabricate her allegations.

[81] Insofar as R.S. may suggest, or the Crown may allege, that C.E. avoided or sharply limited his contact with R.S. and her family after 2000, I favour his evidence that he became very busy with work in those years but that he also did keep up contact, at least with the sister whom he knew best, and that it was in visiting her that he happened to encounter R.S. while she was living near Canada’s Wonderland.

[82] C.E.’s willingness to engage in face-to-face contact over the years with the family of R.S., and to go to her home, lends some support to his claim of innocence — he could not be confident that in the years following the incident she had remained silent with her sisters about the callous attack on her if it had indeed taken place. That said, Crown counsel noted that an attempt by C.E. to avoid contact with R.S.’s family was not part of the prosecution case. This is, I add, only a small point in favour of his defence: the assault, if it occurred, was a brazen act and the same brazenness could account for C.E.’s continued contact with the family of the woman he had victimized.

Conclusion

[83] When I draw back from the evidence, I am left with the frustration that often accompanies cases of historical sexual assault. The obligation of proof beyond a reasonable doubt cannot be attenuated because events of decades past are difficult to examine through the usual techniques of criminal investigation. In this case, as in many others, we have no physical or medical evidence; no evidence from security cameras; no digital evidence from text messages or social media; no confirmatory evidence of post-offence trauma (or its opposite); and no record of post-offence conduct by the defendant close to the time of the events. There is little against which to measure the credibility of witnesses who give competing testimony. If there were more reliable facts in evidence — a scaffolding for erecting arguments on the key issues — one party or the other might benefit.

[84] In this case, issues that might have been resolvable even 20 years after the alleged events have not been addressed in evidence. Did C.E. actually attend the baptism celebration of R.S.’s nephew, which he denies doing? Did he have an encounter in 2020 with R.S.’s younger sister, which led to a sexual proposition, an allegation he also denies? When did he go to R.S.’s home near Canada’s Wonderland to visit the sister with whom he had the closest relationship?

[85] It is possible to hypothesize a version of this case with more objective markers of the truth and a better foundation for confident fact-finding. That is, however, an idle exercise. Taking the evidence as it is presented to me, the prosecution relies on a witness who is personally convincing and who tells a story that seems, at every step, plausible. Probing of her evidence raises questions I have addressed that are troubling but not, in themselves, entirely discrediting.

[86] The defence answers with the evidence of C.E. which was, as far as it went, credible but amounted, in substance, to little more than firm denials of R.S.’s central allegations, overlaid with speculation about her motives in making them. It was, in my judgement, consistent with how a person innocent of allegations against him that cannot be addressed in a more decisive fashion might present himself. Against a case that provided clear and conclusive evidence of guilt with no meaningful questions about its truthfulness and accuracy, C.E.’s flat denials might not be able to raise, or contribute to, a reasonable doubt.

[87] In this case, however, the prosecution evidence has weaknesses that at least give me pause in accepting it and it is met by defence evidence that, even with its limitations, cannot be dismissed as self-serving deception. I am left unsure of what, if anything, happened between R.S. and C.E., and without a basis to conclude beyond a reasonable doubt that the assault R.S. described took place. This means that the criminal standard of proof has not been met.

[88] Accordingly, I dismiss the charge of sexual assault and find C.E. not guilty.

P. Campbell J.

Released: May 17, 2022

COURT FILE NO.: 21-10000449-0000

DATE: 20220517

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

C.E.

Defendant

REASONS FOR JUDGMENT

P. Campbell J.

Released: May 17, 2022