Court File No.: CR-21-00000023-0000
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
JONATHAN DUFFY
RULING
BEFORE THE HONOURABLE JUSTICE J.R. MCCARTHY
on June 10, 2022, at BARRIE, Ontario
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTIONS 486.4 AND 539 OF THE CRIMINAL CODE OF CANADA BY ORDER OF JUSTICE R. MCCARTHY, SUPERIOR COURT OF JUSTICE, DATED JANUARY 20, 2020, AND MARCH 17, 2021
APPEARANCES :
K. Ginn, S. Dudani
Counsels for the Provincial Crown
S. Robichaud, J. Roth
Counsels for Jonathan Duffy
SUPERIOR COURT OF JUSTICE
TABLE OF CONTENTS
EXHIBITS
EXBIBIT NUMBER
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Ruling
LEGEND
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Transcript Ordered :
June 16, 2022
Transcript Completed :
July 19, 2022
Ordering Party Notified :
July 19,2022
FRIDAY, JUNE 10, 2022
RULING
MCCARTHY, J (ORALLY):
The accused stands charged with three counts of sexual offences against the complainants; I refer to them as R.R. and S.R. The accused is charged with sexually assaulting the complainant R.R., a person under the age of 16 between the dates of July 1st, 2019, and January 29, 2020. The accused is also charged with sexual assault of the complainant S.R., both before and after she turned 16 years of age; the first offence having allegedly taken place between January the 1st, 2011 and January 19, 2019; and the latter offences having allegedly taken place between January 20, 2019, and January 28th, 2020.
There appears to be no controversy about the following facts. S.R. was born on January the 19th, 2003. She is currently 19 years old. R.R. was born on July the 20th, 2005. She is currently 16 years old. The accused was the complainant’s stepfather. R.G. is the biological mother of the two complainants. The accused and R.G. met and began cohabiting in 2008. They have three biological children together.
The charges against the accused arise from allegations made by the complainants, R.R. and S.R. on or about January 28, 2020. At that time, the accused, R.G., the two complainants and the three other children were residing as a family unit in Orillia. There also seems to be a consensus that at the time of the allegations, the accused was essentially a stay-at-home father. R.G. worked regular hours at a local Tim Hortons. Up until January 2020, both complainants had their bedrooms on the main level of the residence, while the accused and R.G.’s bedroom are both downstairs. S.R. moved to a downstairs bedroom shortly before the allegations came to light. The allegations followed the accused and R.G. discovering that S.R. had noticeable cut marks on her arms on the afternoon of January 28, 2020. She had returned home that day after writing a high school examination. Two days before, the two complainants had returned home late from a shopping excursion to Toronto. This caused an argument to breakout involving the accused. Prior to the date of the allegations the relationship between the accused and R.G. had become strained, and they had been discussing the possibility of separation. Following the allegations, the accused was brought to the police station where he provided a statement. R.G. and both complainants also provided statements to police. S.R.’s testimony contained allegations of sexual abuse spanning almost ten years, starting when she was six years old up until the very day the allegations were made. The sexual assaults involved vaginal intercourse over the eight preceding months, occurring at least 32 times and as much as three to four days weekly. In the case of R.R, the assaults followed a pattern of mostly inappropriate above and below the clothing touching of the breasts, vaginal areas, including digital penetration. Those assaults took place on the living room couch beneath a blanket or in the complainant’s bedroom.
Assessment of Credibility
Because the accused testified and offered exculpatory evidence conflicting with the Crown's evidence, the Supreme Court of Canada directs that I engage in the three-prong exercise called for in R. v. W.(D.), [1991] 1 (SCC) SCR 742 at 757, as follows: first, if I accept the evidence of the accused, I must acquit; second, even if I do not accept the evidence of the accused, I still must acquit if that exculpatory evidence leaves me with a reasonable doubt as to his guilt; third, even if I am not left with a reasonable doubt based upon the accused evidence alone, I must then consider that evidence, along with all the other evidence adduced, and determine whether I am persuaded beyond a reasonable doubt about the guilt of the accused and each of the three charges. In analyzing the evidence of the accused, I must, of course, consider it contextually. I must not consider an accused’s version of events in isolation as if the Crown has led no evidence; see R. v. Hoohing, [2007] ONCA 577 at paragraph 15. Further, the Supreme Court noted in R. v. C.L.Y. [2008] SCC 2 at paragraphs seven and nine that the purpose of W.(D.) was to ensure that triers of fact understand that they must determine whether, on the whole of the evidence, they are left with a reasonable doubt as to the accused’s guilt.
The First Prong of W.(D.)
If I believe the evidence of the accused, he is entitled to an acquittal under the first prong of W.(D.). I found the accused to be an entirely credible witness who provided the court with reliable evidence. I did not lose sight for one moment that it is commonplace for persons accused of criminal offences to deny, to blame, to blur, to even lie, and to deliberately obfuscate. While he was a confident witness, the accused was neither defensive nor combative. He struck me as an honest person with admirable insight into his own frailties and into the seriousness of the charges he faced. He did not overstate things. At no time did he denigrate his former partner or either of the complainants. Nor did he deny propositions which may have painted him in a bad light. For example, he did not deny or downplay that he illegally cultivated and sold marijuana and that he used it daily. He did not deny that he used to drink to excess, often to the point of intoxication and on occasions into a blackout state. He did not deny that he provided S.R. with marijuana and cigarettes with the permission of knowledge of R.G. The accused did not attempt to evade or trivialize the reality that he was a stay-at-home father who spent countless mornings and evenings at the residence with the complainants. The accused did not deny that he had anger issues, and that this trait may have been unsettling for those around him. The accused denied ever having had sexual relations at any time with either of the complainants, be it intercourse or touching. The accused gave a detailed and entirely reliable account of the major events forming the basis of the accusations against him. I accept that the lice bath treatments for S.R., which took place in Toronto when the child was either six or eight, did not involve any sexual touching. This evidence was, in any event, consistent with R.G., who testified that at no time has S.R. complained to her about anything inappropriate taking place during those lice baths. I accept the accused’s detailed and entirely logical account of when he assisted S.R. with her personal shaving. The assistance was given verbally, without touching and while S.R. was behind the shower curtain. R.G. who was not only the mother of S.R., but also a person who has been a victim of sexual abuse, encouraged the assistance and found nothing untoward about it. If there had been anything inappropriate about it or had S.R. made a complaint about it, I have no doubt that R.G. would have confronted the accused about it or even called the police. She did not. I find that the accused’s assistance to S.R., limited as it was to verbal hands-off advice given from the opposite side of the shower curtain, was not in any way inappropriate. It is understandable that a stepfather being asked to render guidance with his daughter's appearance by her own mother would do his best to lend some assistance. I found it revealing that the accused fully admitted and recalled the incident involving S.R. where he fell asleep in her bed while in an intoxicated state after using the upstairs bedroom. The accused did not deny the incident, which he could have easily done had he been attempting to mislead the trier of fact or keep the evidentiary record clean. Moreover, the accused also conceded that he ended up cuddling S.R. in a non-sexual nature with a blanket between them. There is no evidence to the contrary. He recalls his wife being upset, but denies that she punched him. This evidence is believable and persuasive. It is also consistent with the evidence offered by S.R. In any event, this incident is not an element of any offence on the indictment nor can it, or should it be used to establish a propensity for the accused to commit sexual assault. The Crown suggests that this incident should serve to erode the accused’s evidence to the effect that he was not the type of person to seek intimacy with a 17-year-old. I decline to do so. The incident is worthy of scrutiny in context, but in regard to the issues at trial, I find it to be probative of nothing other than it reinforces my finding that the accused was able to provide an honest and accurate narrative of past events of concern. It certainly does nothing to erode my belief that the accused was telling the truth when it came to denying having committed the offences with which he is charged. The accused provided detail of the conflict in the household leading up to the day the allegations were made; the talk of separation between the accused and R.G., S.R. not listening to her parents, the incident when S.R. and R.R. were late returning from a shopping trip and the conflict that this spawned two days or so before the allegations were made. The accused also provided a logical and precise account of the day of the allegations; how he picked up S.R. from school after her morning exam, how they worked on her resume, how he tended to household chores, how the other children came home from school, and how dinner time took place at 5:00 P.M. The accused then recounted the unfolding of the allegations and their aftermath; the detection of the cuts on S.R., the confrontation with her in the basement, R.G.’s intervention, the appearance of Niko’s screenshot capturing the accusation, the accused’s shocked and confused reaction and the anger demonstrated by R.G. R.G. informed the accused that she was calling the police. I accept that the accused denied having committed these acts. I also accept that he was concerned with the illegal marijuana at the premises. His initial departure from the premises was not just to remove himself from the situation, but was motivated by his desire to dispose of the incriminating illegal substance before police arrived. This was not a laudable act, but it is certainly understandable. Understandable too was his return to the residence at the invitation of R.G. It was upon his return that the accused first learned about further allegations of sexual touching by R.R. I accept that he said goodbye to his younger children, and then said goodbye to both R.R. and S.R., hugging the former, but not the latter. I accept that in exclaiming to R.R. that none of this was her fault, he meant only to comfort R.R. and to offer an apology of sorts that she had to be involved in the entire matter. Viewed in context, this utterance was in no way inculpatory or an admission of guilt. I accept that the events unfolded as recounted by the accused. In crossexamination, he was candid and forthcoming, providing further detail and explanation, particularly for his actions on the night of the allegations and his statement to police. He emphatically denied the suggestion that he had ever traded marijuana and cigarettes with S.R. in return for sexual favours. I accept as genuine and true his evidence that on only one occasion was S.R. rewarded with marijuana and cigarettes in return for performing some household chores. The accused clarified his statement to police, wherein it initially seemed that the cutting incident took place on the same day as the late shopping return. The accused explained how S.R.’s cutting episode immediately preceded the allegations coming out and did not take place on the day that both S.R. and R.R. were late returning from shopping. In the witness stand, the accused emphatically stated he knew himself as a human being, and knew that he could never commit the acts he was accused of. He most emphatically denied the suggestion that upon first learning of the accusation from S.R., he put it to her that they have “one more fuck.” I accept as genuine and true the accused exculpatory evidence provided at trial on all three counts. The first prong of W.(D.) requires that I acquit him.
The Second Prong of W.(D.)
Even if I were not prepared to acquit the accused on the first prong of W.(D.), then I would, in any event, acquit him on the second prong. The second prong directs that even if I do not believe the evidence of the accused, if that evidence still leaves me with a reasonable doubt, then the accused must be acquitted. I pursue the second prong of the W.(D.) analysis in light of the following: 1) The Crown evidence that in the immediate aftermath of the allegations coming to light, the accused made certain statements in front of R.G. and the complainants, which could be considered inculpatory. That evidence included: a) the accused’s alleged admission of guilt for the offences made to R.G.; b) the accused utterance in reference to S.R. that “she asked for it,” and c) the accused’s utterance about an eight-month-long relationship with S.R. And 2) the portions of his statement to police where the accused leaves open the possibility that in some advanced state of intoxication, he could have committed these offences unknowingly and without any memory of doing so.
These two aspects of the evidence invite a more detailed consideration of those statements and utterances and the evidence offered by other witnesses which touch upon them. It also demands drawing upon a healthy dose of common sense. Having conducted that exercise, I am left with not just a reasonable doubt, but a profound and substantial doubt as to the accused guilt for the following reasons:
How the allegations involved one individual and one event, or events closely linked in time, it is conceivable that the accused would have had no recollection or a failed memory of that single isolated incident due to intoxication. An acceptance of S.R.’s statement to police that the assaults took place weekly on as many as three to four days per week would translate into not just dozens, but hundreds of sexual assaults taking place in an eight-month period within recent memory of the allegations and the police statements. To even suggest that these repeated and regular incidents in which the accused was a participant unfolded without him knowing or remembering any of them is such a fantastic proposition that it can only be rejected out of hand. It is a proposition so far-fetched that I cannot consider it to be even remotely possible. And tied in with that observation is the evidence of S.R. that she had only seen the accused in the blackout state on a couple of occasions. That evidence does not allow for the possibility that the accused, time after time after time, sexually assaulted the complainants in a blacked-out state so far advanced that he does not remember his actions even one time out of dozens of alleged occasions over ten years. Simple common sense does not permit such a conclusion.
Viewed in context, it is obvious that during his statement to police, the accused was struggling with the enormity and implications of the allegations against him and engaging in a self-analysis born of confusion and panic as opposed to any acknowledgement or recognition of guilt. Indeed, his statements to the effect that he did not remember doing anything of this nature and that he knew that he did not consciously do what he was being accused of, are statements consistent with an individual who, secure in the knowledge that he did not do what was alleged while he was conscious, was nonetheless struggling with the fact that the allegations had been made.
Had the accused really possessed a guilty mind, I am convinced that he would have maintained a position of complete and steadfast denial, rather than engaging in the kind of confused mental grappling that one detected in his statement. This is especially so given that he fully understood the charge and was in police custody at the time.
As a regular abuser of alcohol and recreational drugs to the point of extreme intoxication and accompanying memory loss, the accused, no doubt, did have gaps in his memories about past events. This undoubtedly explains his reflection and circumspection in the face of the allegations. It also explains why he asked whether this was a “blackout thing.”
The accused exclamations to the police to the effect that, “I cannot say that I did not do it,” I find it to be more consistent with a person struggling to comprehend serious allegations while cognizant of his own history of alcohol-induced memory gaps. This exclamation followed upon his initial pondering of the possibility of whether he may have had sex with S.R. in a blackout state. No doubt the enormity of the accusations and the stressful situation in which he found himself, coupled with his admitted propensity to become intoxicated to the point of being blacked out in the past, would have combined to cause a doubt in his mind to arise which demanded at least some consideration as to whether there was a possibility that he could have been capable of such acts.
In re-examination, the accused has brought the passages in the statement to police where he did emphatically deny the conduct he was accused of. He told police that he would never have touched R.R. or S.R. and later that he would “never do that.” The entirety of the statement bears out that, as the interview progressed, the accused had time to reflect on the nature and detail of the accusations being made and to consider whether any of it was even possible. The necessity of considering the entirety of a statement which contains utterances is consistent with the approach ordained by Justice Blair of the Ontario Court of Appeal in R. v. G.L. [2009] ONCA 501 at paragraph 29: a trial judge is required to consider the whole of the statement and consider it in context with all of the utterances, whether they are exculpatory or potentially inculpatory in nature. I agree with defence counsel that the baseline position of the accused was denial; and in the end, this denial was entirely consistent with his emphatic denial at trial. A denial I accept and place great weight on.
As stated above, I was entirely persuaded by the accused’s emphatic statement at trial that he would never do such things to his daughters in any state. He compared such an act to committing murder or punching his wife. I accept his assertion arrived at after reflection that it was not possible for him to have sex with S.R. while blacked out.
I find it inconceivable that had the accused truly confessed to R.G. in the aftermath of the accusations that he was guilty of the offences against both complainants, that she would have omitted to tell the police that during the eight minute and a 37 second 911 call, even though she was specifically asked by the operator how she learned of the allegations. This fundamentally undermines the reliability of R.G.’s evidence that the accused confessed committing these offences. Concomitantly, it bolsters the believability of the accused that he made no such admission to R.G.
R.G. testified at trial that the accused had advised her that he and S.R. had been in an eight-month relationship. However, on cross-examination, R.G. admitted that she was not sure whether the accused said anything about an eight-month relationship or whether that detail had come from S.R. This was troubling evidence. The source of an accusation about the length of an alleged affair between one's own daughter and partner could not reasonably have been something that an interested listener would mis-attribute to another speaker. In light of that, the evidence of R.G. that the accused told her this, is entitled to no weight.
Without admitting it, the accused could not deny making — during his police statement, the accused could not deny making the post-allegation statement that S.R. “asked for it.” His evidence was that if he did make such a statement, it was not about sex with him, but could have been about mental health, cigarettes or marijuana. R.G. who testified to hearing the utterance, also conceded the comment arose in a chaotic and confusing situation, and on cross-examination she admitted that she was not sure the accused was referring to sex when he said it. R.G. remembered that there was a lot of back and forth on various topics, including that S.R. needed mental health help and that S.R. often asked the accused for marijuana and cigarettes. R.G. then agreed that the “she asked for it” utterance could have been about one of those topics. Indeed, the statement in the text Niko about “the only way to get weed and shit”, undoubtedly made these items a central feature of the allegations against the accused. I find as well that if such an utterance was made, that it could just as likely have been made in a sarcastic tone in light of the level of the tension, the accused’s admitted intoxication and the manner in which the accusations came out. Indeed, R.G. could not discount the possibility, given the accused’s state of intoxication that evening. In any event, I find that the utterance viewed in context is far too ambiguous and open to multiple interpretations. This greatly limits its probative value.
I agree with counsel for the accused when he states that, a court must be very careful not to associate an accused’s equivocation with guilt. Presumption of innocence demands that the court resist the temptation to do so. Moreover, in this case, I find that any equivocation in the accused’s statements was born of expressions of confusion rather than of guilt. Not once did the accused ever admit that any of the allegations were true. As stated above, the baseline position of the accused was always one of denial, and the accused adequately explained the reasons for this equivocation. He was in complete shock and had no clue what was going on. He could not understand why the complainants, whom he loved and cared for, would accuse him of such things. I adopt the following passage from defence counsel's written submission:
The accused was in a crisis that would shake any decent person to the core. There is no universal way to respond to such a crisis. Expecting rational responses from someone in the early stages of a crisis creates an intolerable risk of wrongful convictions.
This analysis of the accused evidence under the second prong of W.(D.) and in particular the postallegation utterances at the residence and the contents of his police statement has left me with a reasonable doubt as to the guilt of the accused on the charges before the court.
Completing the W.(D.) Analysis. For the sake of completeness, I find it appropriate to make some comments, if only briefly, upon the balance of the evidence as I would under a W.(D.) third prong analysis. The Crown evidence had many frailties. First among them was S.R.’s wildly divergent estimates of the number of times she allegedly had sexual intercourse with the accused. In her statement to police, she first stated it would be higher than 20. Then it moved to the oddly specific number of 32 before expanding to every week for three or four days. This is a major and unexplained discrepancy. Equally as problematic was S.R.’s evidence that the sexual intercourse usually took place in the morning after R.G. had left for work. She had told police that she usually smoked marijuana before those encounters. Yet at trial, S.R. was adamant that she never smoked marijuana before school. With respect, those two positions are irreconcilable. There was competing evidence from the two complainants on the timing of their first conversation about the abuse. R.R. remembered speaking to her sister about it on the way to school just before the accused arrest. S.R. testified that such a conversation never took place, but first told R.R. about the allegations after the cuts on the former had been discovered. If one accepts R.R.’s account as truthful and given S.R.’s evidence that she had chosen not to tell anybody about the abuse all those years, it is inconceivable that S.R. would not recall the occasion when she first revealed the allegations to her sister. S.R. testified that in revealing the allegation to R.R., she had said something to the effect of, “I know, John, [that is, the accused] has done something similar to you.” S.R. however, denied asking R.R. to report the allegations to R.G. R.R. provided evidence to the contrary. R.R. agreed with the suggestion that what S.R. said to her was something to the effect that she should tell her mom that this is happening to R.R. as well. R.R. reported to police that the day before the accused, S.R. had told her that the accused touched her in exchange for cigarettes. Then at trial, R.R. added that S.R. had mentioned an alleged rape at the cottage during that initial conversation. But this is contradicted by S.R., who clearly stated that the initial conversation with R.R. concerned only touching. She did not mention to R.R. that she had engaged in intercourse with the accused. I allowed the similar fact application in the middle of trial. While that evidence is deserving of some weight, I find that it is very much undermined by the whiff of collusion created by these inconsistencies. Even bearing in mind the fact that the evidence was provided by young persons and allowing for the special consideration which that type of evidence deserves, I am nonetheless left greatly troubled by these glaring and irreconcilable inconsistencies. They serve to undermine the reliability of the evidence of the two complainants. The court was left to wonder why it would be that R.R. would feel the need to exchange sexual favours with the accused for cigarettes and marijuana. This was central to her allegation made through Niko and captured on the screenshot of the texting. This begs the question of why she would need to do that in the first place. The evidence of the accused and R.G. was entirely consistent on that point. R.R. would ask the accused for these items, the accused would consult with her mother, and R.G. would give her permission. Whether that permission was regularly denied was never really answered to the court’s satisfaction. But it does raise a significant doubt as to whether the entire premise for the alleged sexual favours was even plausible. If the supply of cigarettes and marijuana was only a request away, it strikes me as highly unlikely that anything more than a request was necessary for S.R. to obtain whatever cigarettes and marijuana she needed. That being the case, the content of the text message to Niko makes no sense and is therefore unreliable. On their own, these frailties in the Crown's evidence would have left a reasonable doubt in my mind.
In summary, I have accepted the exculpatory evidence the accused is true. I have engaged in the second prong or the W.(D.) exercise, which would leave me with a reasonable doubt based upon that evidence in any event. Taken together with the frailties and the balance of the evidence, a reasonable doubt would exist on the third prong.
I conclude that the Crown has failed to establish beyond a reasonable doubt that the accused touched either R.R. or S.R. with a part of his body for a sexual purpose. That being the case, I find the accused not guilty of the charges on the indictment. A verdict of not guilty shall be entered on all three counts.
I wish to thank both sets of counsel for their excellent presentation of the respective cases and the assistance they have offered to the court throughout. That is the decision of the Court. Mr. Duffy, you are free to go, sir.
END OF PROCEEDINGS
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))
Evidence Act
I, Catherine Mitskas,
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certify that this document is a true and accurate transcript of the recording of
R. v. Johnathan Duffy in the Superior Court of Justice
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held at 75 Mulcaster St, Barrie, Ontario
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taken from Recording 3811_15_20220610_140406__10_MCCART JOH.dcr, which has been certified in Form 1.
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