BRACEBRIDGE COURT FILE NO.: CR-22-002 DATE: 20230608 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – J. R. Defendant
Counsel: W. Barnes, for the Crown P. Thorning and D. Talbot, for the Defendant
Heard: April 17, 18, 19 and 21, 2023 at Bracebridge.
Reasons for Decision
McCarthy J.
The Charges
1The accused is charged with four counts, two of sexual exploitation and two of sexual assault, stemming from alleged sexual acts involving the Complainant which are said to have taken place between January 29, 2003, and June 30, 2003.
2The offence of sexual exploitation was found at s. 153(1) of the Criminal Code, R.S.C., 1985, c. C-46, for the relevant time:
Every person who is in a position of trust or authority towards a young person or is a person with whom the young person is in a relationship of dependency and who
(a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person, or
(b) for a sexual purpose, invites, counsels, or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction.
3The offence of sexual assault was found at s. 271(1) of the Code at the relevant time:
Everyone who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
Background
4During the period of the subject alleged offences, the Complainant was sixteen years of age. She was a Grade 10 student at a local high school “the school”. The Accused was a teacher at the school. Together with his fellow teacher and colleague L.T., the Accused taught music at all four grade levels. He was involved in running the school band and with other music related extra-curricular activities. The Complainant enrolled in the elective music classes in both Grades 9 and 10. She was a member of the high school bands. There is therefore no dispute that the Complainant was a young person and that the Accused stood in a position of trust and authority vis à vis the Complainant during the relevant period. Consent to the acts alleged is not an available defence.
History of the Alleged Offences
5At trial, the Complainant recounted how she developed a special relationship with the Accused beginning in Grade 9. The Accused favoured the Complainant with special attention. The Accused took the time to sit and talk with her on lunch breaks or in the music office. The two discussed school, music, her boyfriend, and family. This attention made the Complainant feel special and powerful. That relationship continued into Grade 10 when the Complainant was in the jazz ensemble and the intermediate concert band. Being part of these bands involved after school practices and trips. The Accused accompanied the students on these trips along with other teachers and adult chaperones.
6According to the Complainant, the Accused began to communicate with her via electronic mail (emails) during Grade 10. In those emails, the Accused complimented her and stated that he was attracted to her. During this period, the Accused’s marriage was not going well. The Accused and the Complainant agreed to meet up after band practice to spend time together. This plan involved the Complainant providing an excuse to her parents about having to stay at school beyond regular hours. They had conversations about sex. It was sometime after her 16th birthday, between January 29, 2003, and March 2003, that they went through with the plan. The Accused first confirmed with the Complainant that she was 16. One evening following band practice they ascended the stairs to the second floor Grade 9 music room. The Accused opened the door and locked it behind them. He led her to a small storage room located at the back of the room. The Complainant sat up on the countertop. The pair began kissing while the Accused then touched the Complainant all over her body and proceeded to remove her pants. The Accused removed his own pants; they had consensual sex during which the Accused ejaculated inside of her. They were concerned about custodians walking in on them, so they had to act quickly. They put their clothes on and left the room. The Complainant’s parents picked her up. This alleged encounter is referred to as “the first incident”.
7After the first incident, the two returned to their regular routine and daily schedule. They planned a second encounter through email exchange. At the agreed time, the Accused led the Complainant up a set of stairs to the executive band lounge. While on that lounge’s couch they kissed and touched; the Complainant performed oral sex on the Accused. They then engaged in sexual intercourse which ended with the Accused ejaculated inside the Complainant. The Accused assured her that he had had a vasectomy. The Complainant was then picked up by her parents. This encounter will be referred to as “the second incident.”
The Aftermath of the Alleged Encounters
8After the second incident, the Complainant was concerned that her parents, friends, and school might find out about these encounters. She knew that what had happened was not right but enjoyed the attention. Nonetheless, no further encounters followed.
9A year or two after these events, while still in high school, the Complainant confided these events to her best friend B.R. The Complainant then suffered alone and in isolation with her secret for almost 20 years before deciding to go to the police in 2021. After long believing that the incidents were her fault, the Complainant heard a lecture about professional boundaries in a college ethics class in 2016 and recognized her own experience. She summoned the courage and the confidence to come forward.
10Sometime after the alleged incidents, the Accused had attended at the Complainant’s place of employment and apologized for what had happened between them. The Complainant was overwhelmed and embarrassed; she replied with a quick “its fine” and returned to assisting other customers.
11In 2015 or 2016 the Complainant divulged details of the incidents to her parents. She did not provide her mother (hereinafter “K.F.”) any detail about where the incidents had taken place.
The Statements
12The Complainant made a first statement to police over the phone on June 29, 2021 (“the first statement”). This was followed by a video statement on July 1, 2021 (“Video Statement 1”) and a second video statement on July 7, 2021 (“Video Statement 2”). The Complainant provided a supplementary statement on April 5, 2023 (“the April 5th Statement”) followed by a final statement on April 14, 2023 (“the April 14th Statement”).
13Prior to Video Statement 2, the Complainant informed K.F. about what she was going to report to the police. K.F. then gave her own statement to police on July 4, 2021 (“K.F. Statement 1”) which the Complainant claims not to have seen. The Complainant later became aware of the content of K.F. Statement 1; she believed that K.F. Statement 1 contained errors. K.F. provided a revised statement to police on April 5, 2023 (“K.F. Statement 2”). After her first statement, police had warned the Complainant not to discuss her evidence or statement with anybody else; however, the Complainant had already told K.F. about her own statement generally without “all the details.”
The Relevant Law
14The Accused is presumed innocent until the Crown proves the offences beyond a reasonable doubt. The Accused, who did not testify, is not under an obligation to prove anything in this case.
15At trial, the Crown’s case rested almost exclusively on the credibility and reliability of the Complainant and K.F.
16The Supreme Court of Canada has characterized the assessment of credibility as “a difficult and delicate matter that does not always lend itself to precise and complete verbalization”: see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 49. With this in mind, the following are some of the factors this Court can consider in assessing credibility:
a. inconsistencies and weaknesses in the witness’s evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony and the testimony of other witnesses: see Re: Novak Estate, 2008 NSSC 283, 269 N.S.R. (2d) 84 (S.C.), at para. 36;
b. independent evidence that confirms or contradicts the witness’ testimony: see Novak, at para. 36;
c. the harmony of the testimony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and conditions, without relying on false or frail assumptions about human behaviour: see Faryna v. Chorney, [1952] 2 D.L.R. 354 (B.C.C.A) at p. 357;
d. whether the testimony was provided in a candid and straight forward manner, as compared to an evasive, exaggerated, or strategic manner: see R v. T.A., 2018 ONSC 1423, at paras. 244, 249; R. v. Kiss, 2018 ONCA 184, at para 52;
e. the demeanor of the witness, but with caution: see R. v. Panchal, 2022 ONCA 309, at paras. 24-25.
17While considering the above factors, this Court is alive to the fact that there is "no inviolable rule on how people who are victims of trauma like a sexual assault will behave": R. v A.R.D., 2017 ABCA 237, 353 C.C.C. (3d) 1, at para. 64. “Judges must be hyper-vigilant against the incursion of stereotypical analyses or assumptions into their judicial reasoning”: A.R.D., at para. 60.
The Complainant
18The Complainant’s narrative was problematic. I have taken into account that the events in question took place 20 years ago; that the content of the narrative was sensitive and difficult; that she would have certainly been under some stress when testifying; that a person having suffered physical abuse may have adopted coping strategies for shutting out unpleasant memories from the past; and that the accuracy and veracity of non-recorded events which live only in our memories can often be hazy.
Internal Contradictions
19This Court could not ignore the deficiencies in the evidence of the Crown’s principal witness. She chose to explain inconsistencies, gaps, and contradictions in her testimony by referencing the frailties of her memory, or as she termed it, her “complicated” memory. This would not be so difficult to accept if these deficiencies did not relate almost exclusively to the pieces of evidence which undermined the believability of her version of events.
20During her testimony offered under direct examination, she unhesitatingly stated that the Accused had removed her pants during the first incident. In cross-examination a few hours later she could not remember that detail and stated that she could not recall how her pants had been removed. When asked whether she might have been mistaken earlier, she offered a long uncomfortable pause before settling on the response that she could not remember “exactly” how her pants were removed.
21On the subject of pubic hair on the Accused’s body, when it was suggested to her that she had gone from testifying that the Accused had virtually no hair to pubic hair of 2 cm or more, she paused as if suddenly aware of just how incredible her evidence must have sounded, before searching for a way to escape the contradiction.
22Towards the conclusion of cross-examination, faced with contradictions as to whether she had revealed her story to third parties other than B.R., the Complainant described the situation as “very complicated” and her memory as “not perfectly linear” or “chronological”.
23The Complainant’s evidence was often punctuated by long pauses, as if she was searching for answers which would preserve the plausibility of her narrative when she recognized that what she had stated earlier was untenable or that a truthful answer to the question posed might serve to undermine that narrative.
External Contradictions
24There was persuasive evidence from L.T. that the door to the executive band lounge where the second encounter allegedly took place sported a large prominent window; however, the Complainant could not remember that window being there even though she was a student at the school for 4 years. Yet she claims to have been naked in that room with the Accused for upwards of 30 minutes when either of them might have been in the plain view of whomever might have been passing by that door.
25When it was suggested to her that the Accused could not possibly have locked the door to the music room in the manner she had demonstrated a short time before, she shrunk from the question and asked for a break. Upon resuming and when it was put to her that no knob style door in a school would have had a locking mechanism on the inside, she replied that she could not remember and that this detail did not matter.
26When asked what she had told her former boyfriend (“hereinafter T.M.”) about the two incidents back in 2017-2018, the Complainant answered only “some of it”. She specifically denied telling T.M. that she had ever been to the Accused’s home. Yet T.M. would later testify that he had been told by the Complainant that she had attended the Accused’s home.
Embellishment and Evasiveness
27I found the Complainant overly anxious to emphasize details of the relevant period which might tend to bolster the believability of her narrative (for example, that the Accused favoured her and sought alone time with her). This is difficult to accept given that any “alone time” which she described prior to when the alleged incidents took place in the music office where the door was almost always open to other students, another teacher was often present, and where any kind of privacy would have been minimal. The Complainant provided detailed memories of this “alone time” and yet at the same time she could not recall that her band had won the nationals during the school year of the alleged assault.
28I found the Complainant to be evasive when she answered with a neutral but non-responsive “okay” to a host of questions where truthful affirmative answers might have called her credibility into question. For example, after it was put to her that she had “suggested” to her mother that it could be a good idea to correct K.F. Statement 1 after police had warned her not to discuss her statements with other witnesses, she replied simply “okay, okay.” Given a moment to consider, she went on to state that she “might have suggested” a change but did not “tell” her mother to do so.
Differences Between the Complainant’s Statements and Testimony
29The Complainant had a vivid recollection of the two incidents while testifying in court; she was not so clear when giving Video Statement 1. There, she was full of uncertainties, stating that it was difficult for her to remember exactly how it all came to be, that she could not recall specific details, and that she had put the incidents far back in her mind. Most troubling was the Complainant’s indication to police that she could not recall whether the incidents had involved oral sex. Yet her testimony in court was clear that she had performed oral sex on the Accused. When the Complainant was pressed on the question of whether there was oral sex during the second incident, she offered the following unsettling suggestion: “I am just trying to ensure that what I am saying matches up with my statement” or words to that effect. I find it difficult to place much weight on viva voce evidence where the witness admits attempting to tailor that evidence to an out of court statement.
30When asked about the reasons for, or the circumstances giving rise to, the end of her relationship with the Accused, the Complainant noticeably hesitated, stared at the ceiling of the courtroom, and took a long moment. She finally offered that the end came because it was risky, and the pair did not want to be found out; but this is a detail which she could not remember during her statement to police even though she admitted that the event was a memorable, significant, and traumatic incident in her life.
31The Complainant provided differing versions of her interaction with the Accused at her place of employment in the aftermath of the two alleged incidents. She told the Court that she replied “Its fine” to his apology as she was simply attempting to remove herself from the situation and move on to the next customer. But in Video Statement 1 the Complainant told police that she could not even look at the Accused, speak or respond. She was uncertain if she said anything and opted to “run away”. The Complainant blamed this discrepancy on her recollection, on her complicated memory, and the fact that she felt overwhelmed. I cannot accept this.
Inconsistent Evidence About Conversations with her Mother K.F.
32The Complainant was extremely circumspect when it came to her discussions with K.F. following the first statement. Her evidence of these discussions included the following: that she was not aware of the “exact contents” of K.F. Statement 1; that “we discussed things”; that her mother told the Complainant that she was going to “change something” about KF statement 1; that the content of the phone conversation with her mother on April 5, 2023 was limited to “process” and “what’s going on”; that she perhaps talked to her mother about, “where these things happened proximate to April 5, 2023”; and that she “couldn’t remember exactly” whether she talked to her mother about where the incidents happened.
33The Complainant’s evidence that she did not tell her mother to change K.F. Statement 1, but merely suggested to her that she “could” change it and that it “did not matter” to her, was unconvincing. I find that the Complainant was being less than forthcoming. I find that that she greatly understated the influence that she brought upon her mother to change KF statement 1. I find that the Complainant did in fact discuss her evidence in detail with K.F., that she was well aware of the exact detail of K.F. Statement 1, and that upon becoming aware of the discrepancy between the two versions of events, took steps to attempt to reconcile the two. In doing so the Complainant engaged in the kind of discussions with witnesses which the police had warned her to avoid. This resulted in collusion and collaboration between two key witnesses. The ramifications of this will be canvassed in greater detail below.
Overall Conclusion on the Evidence of the Complainant
34The Complainant’s evidence was characterized by multiple internal and external contradictions and contained inconsistencies regarding material aspects of the accusations. Even without the spectre of collusion and collaboration between Crown witnesses, the Complainant’s testimony standing alone would be insufficient to ground a conviction; its many shortcomings leave me with a reasonable doubt that the two incidents occurred as reported by the Complainant.
The Evidence of L.T.
35I place considerable weight on the testimony of L.T. He impressed me as a reliable historian. The fact that he was mistaken about the lever style door handles being capable of locking the door from the inside did not detract from either his credibility or the reliability of his evidence. He did not attempt to minimize or escape from his error. While he withdrew somewhat from his earlier position that the circular knob style door openers could not be locked from the inside, he reiterated his recollection in re-examination on the point. This portion of his evidence was entirely compelling and was consistent with what is pictured in the various photographs of that style door. I accept L.T.’s evidence that the doors to the band executive lounge were all outfitted with knob handles back in 2003. The photographs of those doors taken in 2021 demonstrate that they did not have an inside locking mechanism of the kind that the Complainant suggested they bore at the time of the alleged incident. In any event, this is entirely logical. While code red considerations may have led to the contemplation of or installation of locks on the inside of certain doorways in recent years, there was no independent, verifiable evidence and certainly no compelling commons sense reason that the knob style door handles in the high school would have been outfitted with or would have been required an indoor locking mechanism at the material time.
36This leaves a precise detail of the Complainant’s narrative clearly untenable. I am persuaded that at the time of the alleged incidents neither the door to the band lounge nor the door to the Grade 9 music room were capable of being locked from the inside.
The Evidence of K.F.
37I was greatly troubled by the evidence of the K.F.
38Her testimony was given in a staged, guarded, and contrived manner. During her testimony, I found her consistently gazing out at those in the body of the courtroom as if seeking reassurance that her evidence was supportive of the Complainant’s narrative.
39In K.F. Statement 1, she advised the investigating officer that in the Fall of 2015, the Complainant recounted to her that the Accused had, “…made sexual advances to her and had flattered her with many compliments ultimately resulting in him taking her to his home to have sex with her ” [emphasis added].
40On April 6, 2023 she emailed the investigating officer that, “Since I wrote my statement back in 2021, I have come to realize that I made an error, plus I remembered a few things that I thought worth adding.” Accompanying that email was K.F. Statement 2 which stated simply that the Complainant, “ […] informed me that her music teacher [the Accused] had made sexual advances to her and flattered her with many compliments ultimately resulting in her having sex with him.” The part about “his home” is conspicuous by its absence.
41And later in K.F. Statement 2 she added the following, “More recently, I asked her specifically the details of where the incident took place . She recounted the occasion where she had told us that he was going to give her one on one coaching with playing the guitar after school and therefore would be late getting home and had arranged for her father to pick her up” [emphasis added].
42This rather begs the question of what would have prompted K.F. to ask the Complainant “specifically the details of where the incident took place”.
43I find without hesitation that K.F., having been advised of the discrepancy between the contents of K.F. Statement 1 and the version of events reported to police by the Complainant as to where the alleged incident had taken place, felt obliged and even pressured to revise K.F. Statement 1, leaving out the detail that the incident had taken place at the Accused’s home and substituting the school as the scene of the crime. K.F. did this so that her statement would line up with the version of the incident offered by the Complainant and which was going to be the version offered at trial.
44K.F.’s evidence at trial, that in 2021 she was told by police to provide information limited only to when the Complainant told her about the incident, in her words “just a date”, was uncorroborated, unconvincing, and illogical. Undoubtedly, the investigating officer would have sought a complete detail of what a corroborating witness had been told by the Complainant. Indeed, K.F.’s inclusion of the “where” detail in K.F. Statement 1 persuades me that she was asked by police to give a complete detail of what she had been told by the Complainant in 2015 and that K.F. considered the “where” detail to be of sufficient importance to include it in the second paragraph of K.F. Statement 1.
45I am troubled by the circumstances in which K.F. changed her statement to produce K.F. Statement 2. It persuades me that her evidence was certainly influenced and possibly even manipulated. This greatly undermines the confidence of this Court not just in the reliability of the evidence of both the Complainant and K.F. (a critical corroborating witness to the offence), but in the entire way the evidence against the Accused was collected and prepared for trial. While in and of itself this fundamental weakness in corroboration evidence and the taint it leaves on the Crown’s evidence generally does not lead me to outright reject the entire narrative offered by the Complainant, it does result in me being left, not just with a reasonable doubt, but with a profound and unshakeable doubt as to the guilt of the Accused on the charges alleged.
46There was another glaring weakness in K.F.’s corroborating testimony. In both statements, she referred to “the incident” in the singular. Nowhere in the statements did K.F. refer to “events”, “incidents”, “crimes”, “assaults” etc. There is reference to only one. That evidence stands in stark contrast to the Complainant’s evidence which makes it abundantly clear that there were two distinct instances of assault in two distinct places at two distinct times. These are discrepancies which are difficult to overlook or reconcile; especially because the Complainant’s evidence was offered in such detail that a person hearing the Complainant’s version of events, as K.F. allegedly did in 2015, could only have been left with the clearest of understanding that there were two distinct and separate sexual incidents. That is not a detail that an informed person, possessing both a reasonable memory, and an average capacity for comprehension and retention of information, could have left out even as late as six years on. I cannot accept that K.F. omitted that significant detail from her statements through inadvertence or misunderstanding.
47K.F. advised the Court that she prepared K.F. Statement 1 after considerable thought and over a period of several hours. K.F. struck me as a person of at least average intelligence and aptitude. Logically, a person afforded the time and independence to reduce what she had been told by her own daughter in 2015 about a matter of great importance would strive to ensure that the statement was an accurate recitation of what she had been told. I find it next to impossible that she would include detail that she had not been told or would misstate details provided to her by her own daughter a few years earlier about what would be as traumatic an event as a young person could experience.
48K.F.’s struggle to dispel the inherent presumption that the contents of her statement would have accurately encapsulated the substance of her daughter’s 2015 disclosure to her became painfully obvious as her testimony unfolded. To the extent I do accept the evidence of K.F., I find that what was set out in K.F. Statement 1 would have been exactly what the Complainant recounted to her in 2015, location of the alleged assaults included. I say that because K.F. Statement 1 was closer to the divulgation date of 2015 than K.F. Statement 2; as well, K.F. Statement 1 was prepared without input or suggestions for corrections from anybody else; also, K.F. Statement 1 was prepared without haste and after considerable thought; finally, the detail of where the incident happened could not have been a minor one – the who, what, when, and where of such a profoundly shocking incident would have certainly been conveyed, received, noted and remembered and noted in exact detail.
49I find it difficult to accept that the precise detail of the alleged crime scene would have been something that the Complainant left out or that K.F. misunderstood in 2015. It is even less likely that K.F. would add it gratuitously or consider it mere colour for her statement. And I greatly doubt that it happened to be the one aspect of the 2015 narrative of her daughter that K.F. somehow got wrong. In my view, it is entirely disingenuous for K.F. to now state that the “where” detail of the alleged incident was not significant for her – if that were the case, why would she recollect and include it in K.F. Statement 1 and then consider it important enough to change in K.F. Statement 2?
50Most likely, the detail in K.F. Statement 1 that the relationship resulted in the Accused “taking her to his home to have sex with her” came from the Complainant. It could have come from nobody else. It is highly unlikely that K.F. simply made it up. When that detail was provided in 2015 the Complainant would have been an adult of approximately 28 years old. I find it highly improbable that something so fundamental as the scene of a crime could have been a point of confusion or misunderstanding between two normal functioning adults. I do not accept that it would have been a minor detail assumed by K.F. to be accurate or added simply for colour. Surely the enormity of the alleged crime would have been such that the location of the crime would have been of fundamental importance to a parent, not one that she would blithely presume, assume, add, or misstate.
51K.F. singularly confounded the Court by stating that she never went back to ask the Complainant about what she had told her back in 2015. This was entirely inconsistent with her evidence over the span of an entire morning of testimony during which she repeated countless times that she did ask the Complainant about what had been disclosed in 2015 only to “establish timelines” and “drill down”. This internal inconsistency in her testimony is highly damaging to her credibility. Moreover, the suggestion that these improper conversations were limited to establishing timelines and drilling down is not worthy of belief.
52I found K.F.’s corroborating evidence to be so problematic that, taken alone, it casts a dark and sizeable cloud of doubt over the allegations made against the Accused.
The Evidence of T.M.
53Finally, the fact that T.M. reported that back in 2017-2018 the Complainant had told him that the Accused had her over to his house and that she had encountered his youngest son there is worthy of belief. T.M. was not challenged on the point and would have had no reason to lie to the Court. To a limited but important extent, this is consistent with K.F. Statement 1: that in 2015, the Complainant recounted to her mother that she had attended the Accused’s home during her high school years. This detail, from two witnesses told the same thing, during roughly the same time period, is too precise to be coincidental. The version of the Complainant’s narrative in the period 2015 to 2018 differed from that offered in the period 2021 to 2023 on such a critical aspect of the offence that neither of the two respective narratives is worthy of belief.
Collusion or Collaboration of Witnesses
54In R. v. Burke, [1996] 1 S.C.R. 474, at para. 45, the Supreme Court of Canada adopted what it termed “the more conventional approach” when considering possible collusion or collaboration between witnesses. Under this approach,
[…] the trier of fact is obliged to consider the reliability of the evidence having regard to all the circumstances, including the opportunities for collusion or collaboration to concoct the evidence and the possibility that these opportunities were used for such a purpose.
55Collusion and collaboration need not be deliberate or intentional to have the effect of undermining the reliability of evidence. In R. v. F.(J.) (2003), 177 C.C.C. (3d) 1, at para. 77, the Ontario Court of Appeal warned as follows:
[…] collusion and discussion among witnesses can have the effect of tainting a witness’s evidence and perception of events innocently or accidentally and unknowingly, as well as deliberately and intentionally. The reliability of a witness’s account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people’s stories, which can tend to colour one’s interpretation of personal events or reinforce a perception about which one had doubts or concerns.
56A consideration of the circumstances of the case at bar must include: i) the daughter-mother relationship between the Complainant and K.F.; ii) the admission by the Complainant in cross-examination that what she told her mother “generally” after her first statement was what she stated in court; iii) the Complainant’s statement in cross-examination that she suggested to K.F. that perhaps it could be a “good idea” to correct what K.F. had stated in K.F. Statement 1; iv) the admission by K.F. that she and the Complainant did discuss K.F. Statement 1; v) the fact that K.F. did revise her statement following conversations with the Complainant and on the eve of trial; vi) the material difference between the content of K.F. Statement 1 and K.F. Statement 2; and vii) my finding that the crime scene detail of the alleged assaults was not insignificant, unimportant or a detail that would have been misunderstood.
57I find that there was collusion and collaboration between the Complainant and K.F. in respect of a critical aspect of the Crown’s case. The “where” detail had to be corrected; otherwise, the veracity of the narrative could not survive.
58In my view, this collusion or collaboration between these witnesses, whether deliberate, careless, or otherwise, serves to taint and infect the evidence of both witnesses. Taken together with the other problems with their respective testimony, I am drawn to the inexorable conclusion that their collective evidence is not credible and cannot be relied upon.
Disposition
59Based upon all of the foregoing, I find the Crown’s evidence to be largely unreliable. It certainly cannot form the basis for a conviction. The Crown has failed to discharge its onus to prove the Accused guilty of the offences charged beyond a reasonable doubt.
60There shall be an acquittal entered on all of the charges.
61The Accused is free to go.
NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Ruling that is to be relied upon.
McCarthy J.
Released: June 8, 2023