ONTARIO

COURT FILE NO.: 21-4562

DATE: 2023/01/16

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

Jon Fuller, for the Crown

– and –

T.A.D.

James Harbic, for the Accused

Accused

HEARD: September 6-13, November 21,

December 14, 2022

REASONS FOR DECISION

CARTER J. OVERVIEW

[1] The accused, T.A.D., has been charged with one count each of invitation to sexual touching, sexual interference and sexual assault. All offences stem from allegations made by her cousin J.W. According to J.W., the accused repeatedly sexually assaulted her, mostly while she was sleeping over at T.A.D.’s home. The accused denies that any sexual activity between the two took place.

[2] T.A.D. has also been charged with one count of criminal harassment. After the alleged sexual activity stopped, the accused repeatedly emailed and texted J.W., despite being told to stop. J.W. says that because of this torrent of electronic communication she felt anxious and scared. The accused admits that she sent the emails and other messages but claims that J.W. remained in contact with her and was never in fear for her safety.

[3] The Crown called two witnesses: J.W. and J.K., a friend of the complainant. The evidence of one of J.W.’s co-workers was also entered as an admission on consent. As part of its case, the Crown also introduced more than 1,200 pages of electronic communications, almost all of them from T.A.D. to J.W. T.A.D. testified in her own defence. In addition, the defence called six other witnesses – J.D., S.D., T.A.D., N.D, T.D. and T.D. – all family members. The defence also entered a number of electronic communications, phone records and photographs as exhibits.

[4] An issue arose at the conclusion of the evidence as to whether a portion of the testimony of T.A.D. should have been subject to s. 278.92 of the Criminal Code, R.S.C. 1985, c. C-46, and whether the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.), had been complied with. The matter was adjourned to November 21, 2022, for the parties to consider their position. At that time, a joint position from the Crown, defence and counsel for the complainant was presented to me. There was agreement that the evidence did not engage s. 276, was admissible pursuant to s.

278.92 and that an affidavit of J.W. could be filed to address the Browne v. Dunn issue. After careful consideration of the parties’ position, I ruled that the evidence of T.A.D. was admissible and that the affidavit of J.W. be entered as an exhibit.

[5] I will begin with a brief review of the evidence as it relates to the key issues in the case, then set out the relevant legal principles and conclude with an analysis of the evidence in the context of those principles.

THE EVIDENCE

The Evidence of J.W.

[6] At the time of the trial J.W. was 19 years old, having grown up with extended family in the Ottawa area. She testified that she first began to see her cousin T.A.D. when she was in

grade 9. J.W. was 13 or 14 years old at the time. T.A.D. was around 21 years old. They only started talking after another cousin had passed away.

[7] Originally, J.W. would hang out with several of her cousins and do things like eat late at night or go to Sky Zone. Eventually, it was just J.W. and T.A.D. who would spend time together. They would continue to do activities, go on car rides, have sleep overs and watch movies. Most of the time was spent at T.A.D.’s house but sometimes they would go to J.W.’s house. J.W. lived in Orleans at the time, while T.A.D. lived about 10 minutes away by car in Navan. T.A.D. lived with her mother, brother and sister. J.W. testified that in the beginning she slept over at T.A.D.’s house every week. During the summer, sleep overs could be anytime of the week but during school they were mainly from Friday to Sunday.

[8] In examination in chief, J.W. gave evidence that the first time something sexual happened between them was in the basement of T.A.D.’s house. She was there for a sleep over. They had blankets and pillows with them. According to J.W., T.A.D. began to touch her under her clothing, mainly her breasts. There was no conversation when it happened. She was shocked and confused. She did not remember how long it lasted. When asked if there was anything specific she remembered about the touching, she replied no; she just remembered the rubbing. She could not recall whether there was any touching other than of her breasts.

[9] In cross-examination a written statement she provided to the police on February 24, 2021, was put to her. In the statement she stated that, with respect to the first time something happened, T.A.D. had been asking J.W. to kiss her to which she would continually say no. Once

J.W. fell asleep, T.A.D. started rubbing her chest, but J.W. did not react.

[10] A transcript of J.W.’s evidence from the preliminary hearing was also put to her in cross- examination. On January 25, 2022, she had testified that she could not recall if the first time happened in the basement or the bedroom. She agreed at trial that she testified it was in the basement but had previously been unsure. J.W. also testified at the preliminary hearing that

T.A.D. kept asking her to kiss T.A.D. so she eventually did and that is when T.A.D. touched J.W.’s chest.

[11] J.W. agreed with the suggestion put to her that she did not really remember the first incident. She just remembered some parts of different times.

[12] J.W.’s next memory of something sexual happening was in T.A.D.’s room. The incident happened on the bed. The room was dark, but she could not recall what time of day it was. The two would usually be watching a movie but she could not recall if they were on this occasion. Although no one else was in the room, T.A.D.’s mom and sibling might have been home at the time. T.A.D. would lock the door almost every time they were in the room together by turning the handle.

[13] J.W. testified that T.A.D. was touching her, that T.A.D. would always start off by touching her breasts, but on this occasion T.A.D. put her fingers in J.W.’s vagina. T.A.D. worked her way down. T.A.D. put her hands underneath J.W.’s pants, put her fingers in J.W.’s vagina and started moving. J.W. did not remember any conversation while this was happening but testified that once when T.A.D. was doing this she told T.A.D. to stop because it hurt.

T.A.D. told her to be quiet, that she liked it and to stop talking.

[14] J.W. also gave evidence that there were times when T.A.D. wanted J.W. to do the same thing to her. When asked about a specific time, she said she thought it was at her place; that

T.A.D. put J.W.’s hands on her vagina and told J.W. to finger her. J.W. put her hands on T.A.D.’s vagina underneath her underwear. She did it until T.A.D. was satisfied; if she stopped,

T.A.D. would get mad.

[15] J.W. believed that this happened during grade 9. She was not sure what time of day it took place but thinks it was after dinner. Before the touching, they had been talking.

[16] The next distinct memory that J.W. had was a time when she was taking a shower at T.A.D.’s house. She thinks she had slept over and was showering in the morning. T.A.D. randomly appeared in the shower despite the fact that J.W. had locked the door. T.A.D. got one foot in the shower and tried to touch J.W.’s buttocks but she almost fell. The other family members were at work at the time. In cross-examination, J.W. testified that she went to school

the next morning. She could not recall what year this took place, what day of the week or why she was staying over.

[17] J.W. also testified about an incident in which T.A.D. urinated in her mouth. They had been drinking in T.A.D.’s room. She could not recall if anyone else was home. J.W. believed this was towards the end of grade 9. She had never tried alcohol before but was open to it. She drank two mugs but could not recall what kind of alcohol it was.

[18] The sexual activity began with T.A.D. rubbing J.W. underneath her clothes. J.W. then remembered being on her knees and T.A.D. standing over her. She did not believe that T.A.D. was clothed; at least she was not wearing pants or underwear. T.A.D. asked J.W. to put her mouth to T.A.D.’s vagina. J.W. did not want to do it but did it anyway because she felt she needed to. Every time she did not do what T.A.D. wanted, T.A.D. would give attitude and be mean.

[19] J.W. had no sense of how long the incident lasted. She believed that T.A.D. urinated because a lot of liquid started coming out of her vagina. She spit it onto the floor. J.W. could not recall if they cleaned it up.

[20] In cross-examination, J.W. confirmed that was the only time that T.A.D. urinated in her mouth. A transcript of an interview she did with the police on March 12, 2021, was to put to her. In it, she tells the officer that T.A.D. had sat on her face, that she was unable to move and that

T.A.D. then urinated and that J.W. spat it out. When confronted with the inconsistency she testified that she was mistaken in what she told the police; T.A.D. did not urinate on her when she sat on her face.

[21] Initially during her examination in chief, J.W. testified that she had no other memories of inappropriate touching and that they only occurred at her house or T.A.D.’s house. Later in her evidence, the Crown asked her if anything inappropriate ever happened when driving with

T.A.D. in her car. J.W. gave evidence that T.A.D. would start touching her when they were parked; she would put her hand in J.W.’s pants.

[22] In cross-examination, J.W. agreed that she had never mentioned the sexual assaults happening in a car in her written statement to the police, in her interview with the police and in her evidence at the preliminary hearing.

[23] According to J.W., T.A.D. put her hand in J.W.’s vagina about three times per week.

J.W. touched T.A.D.’s vagina about the same number of times.

[24] When asked how many times she had put her mouth on T.A.D.’s vagina J.W. responded that the incident she had previously described had been the second time. She could barely remember the first time. It occurred on T.A.D.’s bed. T.A.D. put her mouth on J.W.’s vagina about once every two weeks.

[25] J.W. was also asked if she touched T.A.D.’s other body parts with her mouth. She initially responded no but then changed her answer to “yeah, my breasts.” J.W. testified that

T.A.D. would suck her breasts.

[26] According to J.W. the touching would sometimes occur when she was asleep, and it would wake her up. Other times she would already be awake. When asked about her reaction she testified that she wouldn’t really react.

[27] J.W. testified that the sexual activity occurred during grade 9 and maybe a bit at the beginning of grade 10. When she was asked about what made it happen less in grade 10, she responded that she started getting physical. She would prevent T.A.D. from touching her by grabbing her hand and pushing her away. T.A.D. would get upset but would stop trying to touch

J.W. T.A.D. asked her why she wanted to stop given that J.W. had wanted to participate in the touching.

[28] J.W. testified that after T.A.D. got mad she tried to distance herself but T.A.D. would contact her via phone. She would send a lot of texts and emails. In cross-examination J.W. agreed that she continued to talk with T.A.D. for a while after the sexual activity stopped. She also continued to sleep in T.A.D.’s bed with her.

[29] More than 800 pages of emails between T.A.D. and J.W. during the period from September 3, 2020, until February 20, 2021, were entered as an exhibit at trial. There were two emails on September 2, 2021, then a gap until early October, a flurry of activity on October 10 and 11, a handful more later in October and then a long gap until December 10. There were a few emails over the next few weeks and then a steady stream of emails from December 26 until the end of February 2021 (with gaps from December 31, 2021, to January 13, 2021, and January 16 to 26).

[30] Another 345 pages of iMessages were adduced. Many of the messages are undated although some have dates from January and February 2021.

[31] The overwhelming majority of the communications are from T.A.D. to J.W. During her examination in chief, J.W. was taken through some of these communications, a few of which are suggestive of a possible sexual relationship between the two. I will return to these later in the analysis portion of these reasons.

[32] The following key points emerged from J.W.’s testimony with respect to the emails and iMessages that were put to her:

a. J.W. had blocked T.A.D. but T.A.D. wanted to be unblocked. J.W. could not recall specifically why she had blocked T.A.D. in September 2020, but she testified that a lot of times she was trying to stop talking to T.A.D. because

T.A.D. gave her too much anxiety.

b. Despite being blocked, T.A.D. continued to contact her. T.A.D. would use different email addresses or call with an unknown caller id. She would also iMessage from different accounts.

c. J.W. sent emails asking T.A.D. to leave her alone because she was feeling overwhelmed by the messages. J.W. did not respect these requests.

d. On October 10, 2020, T.A.D. wrote, “keep moving snakey you’ll see me with ur fam soon chatting them up”. J.W. testified that this made her anxious because

T.A.D. would talk to her mom and grandma and they liked talking with her. J.W. felt that she could not get space from T.A.D.

e. On that same date, there are a series of emails that suggest T.A.D. was outside J.W.’s house watching. She had not been invited and was not welcome. These emails made J.W. feel anxious.

f. When asked if there was a defrosting of things in November 2020, J.W. stated that there could have been, but she did not have a specific recollection.

g. On December 26, 2020, T.A.D. stated she was outside and wanted her money.

J.W. was not taking her calls because T.A.D. was making her anxious.

h. On December 27, 2020, T.A.D. sent an email threatening to message all J.W.’s Snapchat friends. This made J.W. anxious because she did not know what or who would be messaged. There were other communications in which T.A.D. threatened to contact J.W.’s friends. These also made her anxious. She feared what T.A.D. would tell them. She did not know if it would be personal or made- up stuff.

i. On December 28, 2020, J.W. emailed T.A.D. as follows:

I asked you to leave me alone. I don’t want to hear from you anymore and I would like for you not to contact people that have nothing to do with you. You are giving me nothing but anxiety. Please don’t push me to file a restraining order for my own piece of mind. So I am asking you again, to no longer contact me and to please leave me alone.

j. On December 30, 2020, T.A.D. emailed J.W. a list of phone numbers that she had retrieved from the phone records (T.A.D. paid for J.W.’s phone and had access to the records). J.W. was anxious that T.A.D. would start calling these people.

k. J.W. was taken to a January 14, 2021, email in which T.A.D. referenced speaking on the phone with her on December 30^th. J.W. agreed that they spoke on the phone but did not recall what was said.

l. On December 31, 2020, T.A.D. sent emails that suggested she was outside J.W.’s residence. J.W. was not home but the email made her anxious. T.A.D. also sent an email suggesting that she would contact family and friends. This was a concern for J.W. because she did not want her family turned against her and to have to explain to her friends.

m. On January 14, 2021, T.A.D. emailed that she was outside J.W.’s house. She wrote “watch when I see you.” This made J.W. nervous.

n. The next day T.A.D. wrote “Aiight when I see you it’s on sight. I’m the wrong person to have bad blood with. You will feel my negativity and anger towards you.” J.W. testified that “on sight” meant in person and that something bad would happen. Her evidence was that she was scared but was not as anxious because she was staying at a friend’s house.

o. In an iMessage from January 27, 2021, T.A.D. stated that she knows J.W.’s number, where she lives, her friends, her schools and work. She would keep messaging and calling until J.W. answered her. J.W. testified that this made her anxious and scared because she didn’t know what T.A.D. would do.

p. On February 5, 2021, T.A.D. wrote that she was going to pay a visit to J.W. at her work as soon as it opened. At the time J.W. worked at a fitness club. This made

J.W. stressed as she did not want a scene at work.

q. The next day T.A.D. messaged that she was outside J.W.’s house and would give her the gifts she asked for.

r. In an undated iMessage, T.A.D. referenced the fact that everyone will find out.

J.W. testified she was anxious because she did not know what T.A.D. was going to say.

s. In an undated iMessage, T.A.D. stated “Let me come see u right now and really punch tf out of u for all the times u punched me and said sorry and punched me

again u piece of shit. I hope you die in the most brutal way u fucking bitch.”

J.W. testified she cannot recall how she felt but she was probably anxious. She then stated that she did not know what T.A.D. was going to do – it just scared her.

[33] J.W. testified that T.A.D. would never leave her alone, that she never knew when T.A.D. would be good or be mad and that T.A.D. would get upset if J.W. was hanging out with friends.

[34] In both examination-in-chief and in cross-examination, J.W. testified that she would get in physical fights with T.A.D. Sometimes they arose because of the sexual assaults and sometimes they were in the car when T.A.D. would not drive her home. J.W. agreed that she would occasionally yell and scream at T.A.D. They both insulted each other.

[35] In her testimony, J.W. stated that she might have spammed T.A.D.’s phone once during grade 9 or 10. This was done to show T.A.D. how she was acting. In cross-examination, phone records were put to J.W. showing a series of 52 calls in May 2020 and she agreed that may have been the time it happened.

[36] In addition, J.W. testified about a number of incidents in which T.A.D. came to see her in person. Her evidence was that T.A.D. would show up at her house, knew the code and would just come in. When asked how this made her feel, she said that it would give her anxiety; that she just wanted to be left alone. She also testified that she would get scared. When asked why, she responded “because she would just scare me.” The Crown pursued the line of questioning further and J.W. testified that T.A.D. just would not leave her alone. T.A.D. would get mad so

J.W. never knew how she would react.

[37] On another occasion, T.A.D. showed up at J.W.’s workplace multiple times the same day. According to J.W., T.A.D. came and asked to talk to her. She told T.A.D. to leave her alone.

T.A.D. continued to stay at the front so she got a co-worker, S.L., to tell T.A.D. to leave. She did not see T.A.D. for the rest of the shift but at the end of the shift she noticed a car outside that she believed belonged to T.A.D. She asked S.L. to check but she was told there was no one out there. J.W. subsequently saw T.A.D. outside on the surveillance cameras so she called S.L. to come back to work to drive her home. S.L. drove her home, but she saw T.A.D.’s car there. She

was too scared to get out, so she asked to be driven to another friend’s house. J.W. could not recall when this incident happened but believes it was during wintertime because it was cold.

[38] On agreement, further evidence of J.W. was admitted in written form in response to evidence given by T.A.D. The evidence was that she never caught T.A.D. reading her diary like writings, that she did not have a black notebook with T.A.D.’s name in it and that she never wrote about or had romantic feelings towards T.A.D.

The Evidence of the Other Crown Witnesses

[39] A written statement by S.L. was introduced as an admission of fact. Although there are some minor differences, for the most part it corroborates the evidence of J.W. with respect to the workplace incident. Regarding the call made to have her come back to the workplace, S.L. stated that J.W. told her she did not feel safe to leave the club alone or get into an Uber. According to her statement, S.L. believed the incident happened in November or December 2020.

[40] J.K. testified that she was friends with J.W. in grade 9. On one occasion, T.A.D. came over to J.W.’s house while she was there. J.W. told her to say in the room and pretend she was not there. J.W. then went downstairs. J.K. heard a commotion but could not make out what was being said. When J.W. came back up she was flustered and even a little panicked and confused. She was in tears.

[41] According to J.K. at some point in 2020 or 2021, J.W. told her about the sexual activity with T.A.D. J.W. said that all the sexual activity had occurred in T.A.D.’s vehicle. In cross- examination she explained that she could not narrow the timeframe of the disclosure any more than that it was in late 2020 or early 2021. She also confirmed that J.W. had told her that all the sexual activity occurred in the car.

The Evidence of T.A.D.

[42] T.A.D. testified that while J.W. did sleep over at her house and they did cuddle while watching TV, no sexual activity ever took place. She was never naked in J.W.’s presence, and

they never drank alcohol together. T.A.D. was asked by family members to be nice to J.W. because of difficulties J.W. was having and that is what she did.

[43] In her evidence, T.A.D. agreed that she bought gifts for J.W. but that these were not in exchange for sexual favours. According to T.A.D. she got a call from J.W. on Valentine’s Day asking for her to drop off the gifts, which she did. She received a call from J.W. afterwards thanking her.

[44] T.A.D. gave evidence that she found J.W.’s diary and discovered that she was a lesbian. This made her feel uncomfortable.

[45] In response to the evidence of the emails and iMessages in which photos were attached,

T.A.D. stated that it was her common practice to send a photo from where she was waiting to alert people about her arrival. Several examples were provided. It was T.A.D.’s evidence that she never intended to alarm anyone by doing this.

[46] T.A.D. did not save any of her electronic messages. She was not anticipating litigation. Her iPhone was not set to save messages in the cloud.

[47] When asked about the tension between her and J.W. that had developed by the end of February 2021, T.A.D. testified that she did everything for J.W., that J.W. was not answering her messages, that she did not understand why this dynamic arose and that she felt used by J.W.

[48] According to T.A.D., she visited J.W. at work hundreds of times. She would bring her to and from work and would bring her lunch. J.W. was appreciative. With respect to the incident described by J.W., T.A.D. stated that she wanted to talk to her and did not see anything wrong with that.

[49] J.W. physically assaulted T.A.D. on multiple occasions. The assaults occurred when she drove J.W. to get food. T.A.D. only ever hit J.W. back to defend herself.

[50] T.A.D. denied ever intending to put fear into J.W. She did not go to her work to upset or annoy J.W. For the period from September 2020 to February 2021, she described her relationship with J.W. as having fights but then making up. They forgave each other.

[51] In cross-examination, she was asked whether in looking back she could understand why

J.W. would have been afraid. T.A.D.’s evidence was that she could not. J.W. did the same thing to her. J.W. contacted her using different numbers, emails and messaging platforms. That is when T.A.D. learned how to get different numbers and emails. The time of the 52 calls was not the only time J.W. harassed her. J.W. was just collecting the messages this time to bring a case against T.A.D.

[52] T.A.D. agreed that she had access to J.W.’s phone records and that all she could produce was the record for May 2020 showing the 52 calls.

The Evidence of the Other Defence Witnesses

[53] J.D., S.D., T.A.D., N.D, T.D. and T.D. all testified for the defence. They are family members. Their evidence was brief and largely consisted of a description of the residence where the sleep overs occurred, their relationship with T.A.D. and J.W. or the fact that they did not see anything unusual occur between the two.

POSITION OF THE PARTIES

The Defence

[54] The defence submits that no sexual activity between J.W. and T.A.D. took place. The only direct evidence of such activity comes from J.W. and there are problems with her evidence. She gave prior inconsistent statements (both explicit and by omission) about the very acts themselves, and she did not explain the inconsistencies. In one instance, she was internally inconsistent while testifying in chief. In addition, she could not recall many of the alleged assaults, including the first or last one.

[55] Although no corroboration is required, the defence argues that the lack of corroboration is surprising given the number of alleged incidents, the layout of the house and the number of other people who would have been present in the house at the time of the alleged activity. This makes the allegations implausible.

[56] Furthermore, T.A.D. in her testimony denied any sexual activity took place and never wavered in her evidence during cross-examination. Nor did she make any direct admissions in the electronic communications with J.W.

[57] With respect to the criminal harassment charge, the defence submits that there is no reliable and credible evidence that the complainant was afraid. J.W. admitted she enjoyed taking rides with T.A.D., would still sleep over during the period of the harassment and even borrowed T.A.D.’s car. This continued contact is inconsistent with being afraid of T.A.D.

[58] The defence also argues that there are electronic messages between the two that J.W. never provided to the police and that J.W. admitted as much during cross-examination. The defence alleges that J.W. was simply building a one-sided record of messages in order to obtain a peace bond.

[59] In any event, J.W. testified that she barely looked at the messages. This goes to her subjective fear. The defence questions how J.W. could be afraid of something she did not even read.

The Crown

[60] The Crown submits that the accused’s evidence is not credible. T.A.D. has no insight into her own behaviour. She could not recognize that her constant communications were wrong, even in hindsight. As a witness, she would not admit to obvious suggestions, such as that watching a movie is fun. At every turn, she tried to present herself in the best possible light and paint J.W. in a negative light.

[61] The Crown argues that T.A.D.’s evidence is contradicted by her own words (in the form of the electronic communication) and by her actions. For example, she would not agree that she was angry at a particular point in time, even though her message to J.W. communicated anger.

[62] Furthermore, the electronic communications suggest that sexual activity took place between T.A.D. and J.W., contrary to T.A.D.’s evidence, even though no explicit reference to sexual activity was made.

[63] With respect to the sexual assault allegations, the Crown argues that I must assess J.W.’s evidence from the perspective of an adult who testified about events that occurred when she was a youth. In so doing, the court should avoid placing any reliance on myths and stereotypes. Sexual assault complainants may come forward in different ways. There can be waves of disclosure. The fact that a particular allegation was not referenced in the initial disclosure does not mean the complainant is not credible.

[64] In the alternative, the Crown submits that even if the court has a doubt about some incidents, others may be proven beyond a reasonable doubt. Some, all or none of a witness’s evidence may be accepted. J.W.’s testimony was corroborated by other witnesses and the electronic communications, although not directly with respect to the sexual assault allegations.

[65] The Crown’s position is that the evidence on the criminal harassment charge is overwhelming. The electronic communications speak for themselves. Although the particularized conduct is “repeated communication”, the other modes of criminal harassment are made out on the evidence. This evidence is relevant to both whether J.W. feared for her safety and whether that fear was reasonable.

[66] The Crown concedes that J.W. initiated some contact with T.A.D. during the relevant time period and that this is relevant to an assessment of whether she feared for her safety. Nevertheless, the Crown need not prove that the criminal harassment occurred during the entirety of the period as set out in the Indictment. As long as the elements of the offence are all proven beyond a reasonable doubt at the same time during some point in that time frame, criminal harassment has been established. The complainant may have feared for her safety at some points during this period but not others. In determining subjective fear, the Court can consider J.W.’s testimony, her actions (such as blocking T.A.D.) and the evidence of others who witnessed her reactions to T.A.D.

LEGAL PRINCIPLES

Overarching Principles

[67] The Crown must prove the essential elements of each offence beyond a reasonable doubt.

[68] On the one hand, probable or likely guilt is insufficient. On the other hand, it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.

[69] A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

Sexual Assault, Sexual Interference and Invitation to Sexual Touching

[70] A conviction for sexual assault requires proof beyond a reasonable doubt of two basic elements, that the accused committed the actus reus and that they had the necessary mens rea. The actus reus of assault is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of or willfully blind to, a lack of consent, either by words or actions, from the person being touched: see R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 23.

[71] The offence of sexual interference in set out in s. 151 of the Criminal Code. It states that every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of sixteen years is guilty of an indictable offence. The offence of invitation to sexual touching is made out if the accused invites, counsels or incites a person under the age of 16 to touch directly or indirectly any person’s body, for a sexual purpose.

[72] The only issue in this case is whether the unwanted sexual touching and invitation to sexual touching occurred. That determination largely turns on the credibility and reliability of the witnesses. Those principles will be discussed in greater detail below as they are also relevant to the criminal harassment charge.

Criminal Harassment

[73] The offence of criminal harassment is set out in s. 264(1) of the Criminal Code. It reads:

No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in

subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

[74] The Ontario Court of Appeal in R. v. Kosikar (1999), 1999 CanLII 3775 (ON CA), 178 D.L.R. (4th) 238 (Ont. C.A.), at para. 19, set out the five elements of the offence that the Crown must prove beyond a reasonable doubt:

a. The accused engaged in harassing conduct, as defined in s. 264(2).

b. The complainant was “harassed.”

c. The accused knew the complainant was harassed or was reckless or wilfully blind to that fact.

d. The harassing conduct caused the complainant to fear for her safety.

e. The complainant’s fear, in all the circumstances, was a reasonable one.

[75] In this case, the particularized conduct is “repeatedly communicating with, either directly or indirectly, the other person or anyone known to them.”

[76] The defence does not take issue with the first three elements. There is no question that the accused repeatedly communicated with the complainant given the volume of texts and emails that she sent during the period from October 1, 2020 to March 10, 2021 as set out in the Indictment. Furthermore, J.W. testified that she was anxious and sometimes scared as a result of the contact. She was clearly in a state of being harassed or felt harassed in the sense of feeling “tormented, troubled, worried continually or chronically, plagued, bedeviled or badgered”: see Kosikar, at para. 22. Finally, J.W. asked T.A.D. to stop contacting her on numerous occasions. On at least one occasion (December 28, 2020) she threatened to seek a restraining order. The accused knew the complainant was harassed yet persisted in the communications.

[77] The issues in dispute are whether the complainant feared for her safety and whether such fear, in all of the circumstances, was reasonable.

[78] The fourth element requires evidence of the complainant’s subjective fear. For this element, there is no objective consideration, the fear need not be reasonable. That a complainant may be unduly sensitive or unreasonable is addressed in the final element. If the trial judge

accepts the complainant’s evidence that he or she feared for their safety, the fourth element is established: R. v. Wisniewska, 2011 ONSC 6452, at para. 33.

[79] The complainant need not use the word “fear” in his or her testimony in order for this element to be established: see R. v. Szostak, 2007 ONCJ 392, at para. 28.

[80] A complainant’s fear for his or her safety includes psychological and emotional security. As noted by Jenkins J. in R. v. Gowing, 1994 O.J. No. 2743, to restrict it narrowly, to the risk of physical harm by violent behavior, would ignore the very real possibility of destroying a victim’s psychological and emotional well-being by a campaign of deliberate harassment.

[81] However, the concept of emotional and psychological well-being should not be too broadly defined lest we cast the net of criminality too widely: see R. v. Erickson, 2015 ABPC 234, at para. 58. What is required is a state of anxiety or apprehension concerning the risk of substantial psychological harm or emotional distress: see Szostak, at para. 26 (emphasis added). The jurisprudence is replete with examples where acquittals ensued, sometimes reluctantly, where despite clear evidence of harassment, the Crown failed to prove beyond a reasonable doubt that it caused the complainant to fear. This is so even in cases where the complainant is upset, frustrated, very unhappy, troubled, distraught and where they want nothing to do with the accused: see R. c. Swierkot, 2019 QCCQ 7291, at para. 205.

[82] The objective component requires an assessment of how the reasonable person would have felt in similar circumstances. Making that determination requires a consideration of all the circumstances, including but not limited to, the history and circumstances surrounding the relationship between the parties, the age, sex and race of the complainant, whether there were explicit directions to the accused to leave the complainant alone, and the duration of the harassment: see Wisniewska, at para. 37.

[83] The analysis as to whether the victim was fearful and whether this fear was objectively reasonable, are both case sensitive matters to be addressed in context. This includes consideration of the relationship between the two parties, the measures taken to discourage the

conduct in question, and the nature and extent of the prohibited activity: see R. v. Vince, 2021 ONCJ 647, at para. 26.

[84] Evidence that the complainant initiated contact with the accused during the period of the alleged harassment may also be considered: see R. v. Rampin-Lefebvre, 2015 ONSC 1630, at para. 41. However, the reason for the contact, its nature and duration will affect what impact this evidence has on the analysis. Not all contact is created equal.

The Credibility and Reliability of Witnesses

[85] Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately i.) observe; ii.) recall; and iii.) recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability. A credible witness may give unreliable evidence: see R. v. C.(H.)., 2009 ONCA 56, 244 O.A.C. 288, at para. 41.

[86] As noted by Finlayson J.A. in R. v. Stewart (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509, at p. 517:

We all know from our personal experiences as trial lawyers and judges that honest witnesses, whether they are adults or children, may convince themselves that inaccurate versions of a given event are correct and they can be very persuasive. The issue, however, is not the sincerity of the witness but the reliability of the witness's testimony. Demeanour alone should not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on the record.

[87] The Ontario Court of Appeal has repeatedly cautioned against giving undue weight to demeanour evidence because of its fallibility as a predictor of the accuracy of a witness’s testimony. Demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom. Although a trial judge is entitled to consider demeanour in assessing the credibility of witnesses, reliance on demeanour must be approached cautiously. Importantly, a witness’s demeanour cannot become the exclusive determinant of his or her credibility or of the reliability of his or her evidence: see R. v. Hemsworth, 2016 ONCA 85, 334 C.C.C. (3d) 534, at paras. 44-45.

[88] Furthermore, just as it is an error to rely on pre-conceived views about how sexual assault victims would behave in order to undermine a complainant’s credibility, so too is it an error to artificially bolster a complainant’s credibility based on these pre-conceived views. Any assessment of credibility and reliability relating to conflicting facts based only on assumptions about who would or would not do this or that risks being based on behavioural assumptions, myths and stereotypes (rather than on an analytical assessment of the evidence) and could constitute an error of law: see R. v. Cepic, 2019 ONCA 541, 376 C.C.C. (3d) 286, at paras. 13- 15, 24 and 27.

[89] One of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions: see R. v. M.(A.), 2014 ONCA 769, 123

O.R. (3d) 536, at para. 12.

[90] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: see M.(A.) at para. 13

ANALYSIS

The Sexual Offences

[91] I am unable to conclude beyond a reasonable doubt that any sexual activity (including an invitation to sexual touching) occurred between T.A.D. and J.W. The inconsistencies in J.W.’s evidence, her lack of recollection of many of the details of the alleged incidents, and the evidence of T.A.D. (which I cannot reject in its entirety although highly problematic) all serve to raise a doubt with respect to the allegations.

[92] I recognize that while J.W. is now an adult, she was recounting alleged incidents that occurred when she was a youth. Some lack of detail is to be expected. Minor inconstancies would not necessarily be detrimental to her evidence.

[93] In this case, however, the lack of detail is significant, as are the inconsistencies.

[94] Most of the allegations were described in general terms with limited detail. As conceded in cross-examination, J.W. essentially remembered some parts of different instances. While standing alone this fact might not be sufficient to raise a reasonable doubt, the difficulty is that

J.W. initially attempted to describe some of the alleged occurrences in some detail.

[95] The alleged first incident is an example. In her evidence in chief, J.W. presented what transpired as a recollection of what had occurred. She had also done this in her interview with the police, although stating that the rubbing of the breasts occurred while she was asleep, a significant detail that was not present in the version she provided at trial. Furthermore, at the preliminary hearing she had testified that she had kissed T.A.D. in response to her entreaties, evidence inconsistent with what she said at trial. It was only after being confronted with these prior inconsistent statements that J.W. explained to this Court that she did not really remember the first incident. Such a dramatic shift in testimony raises serious concerns with respect to the reliability of the evidence.

[96] J.W. testified that her next memory of something sexual happening was in T.A.D.’s room. Although this was described as a memory, her evidence largely consisted of attempting to put things together that she said usually happened – watching a movie, other family members being in the house and T.A.D. locking the door by turning the handle – even though she could not say if they happened on this occasion.

[97] J.W. also testified about an incident in which T.A.D. urinated in her mouth. Given the somewhat unusual nature of this allegation, it would have stood out from the others. In cross- examination, J.W. confirmed this was the only time that T.A.D. had urinated in her mouth. A quite different version of this incident had been provided to the police in J.W.’s videotaped interview. When confronted with the inconsistency J.W. testified that she was mistaken in what

she told the police. It should be noted that she provided a detailed account of this incident to the police and did not equivocate. This was an inconsistency involving something material about which an honest witness is unlikely to be mistaken, and the inconsistency is of particular concern.

[98] Finally, J.W. initially testified that she had no other memories of inappropriate touching and that the inappropriate touching only occurred at her house or T.A.D.’s house. Later in her evidence in chief, the Crown asked her if anything inappropriate ever happened when driving with T.A.D. in her car to which J.W. responded in the affirmative. It is of note that J.K. testified that J.W. told her in late 2020 or early 2021 that all of the sexual activity had taken place in the vehicle. In other words, this was not a case of J.W. disclosing the abuse in waves – she had already disclosed this detail to a friend even though she had never told the police about it. Nor was it a minor detail that might be forgotten. This was both an internal consistency during her examination-in-chief and a prior inconsistent statement. It was also a significant inconsistency that related to the entirety of the allegations, not just one particular incident.

[99] In considering whether the Crown has proven these offences beyond a reasonable doubt, there is also the testimony of T.A.D. She was unshaken in her denial that the sexual assaults took place. The Crown put to her a number of messages that were suggestive of sexual activity between T.A.D. and J.W. and on each occasion T.A.D. provided an explanation. T.A.D. was a problematic witness in many areas, a subject to which I will return later in these reasons. Nevertheless, while I cannot say that I accept her evidence on this point, I am unable to reject it. It is of note that T.A.D. does not refer directly to sexual activity with J.W. in any of the messages, as conceded by the Crown. In the context of the evidence as a whole (and in particular the difficulties in the evidence of J.W. with respect to the sexual assaults) T.A.D.’s evidence raises a reasonable doubt as to her guilt on these counts.

[100] For the reasons outlined above, findings of not guilty will be entered on counts one, two and three.

The Criminal Harassment

[101] As previously noted, the only real issue on the criminal harassment count is whether J.W. subjectively feared for her safety and whether that fear was objectively reasonable.

[102] Although this analysis largely turns on the evidence of J.W. and the electronic messages,

T.A.D. did testify about some matters that touch on these elements of the offence. In particular,

T.A.D. gave evidence that she and J.W. were having a “parallel conversation” and that it was really J.W. who was harassing her.

[103] I do not find T.A.D.’s evidence in this regard either credible or reliable and reject it.

[104] T.A.D. was a somewhat combative witness in cross-examination, whose answers were not always responsive to the questions. In particular, T.A.D. attempted to cast J.W. in a negative light when confronted about her own behaviour. The examples are too numerous to catalogue in these reasons in their entirety. A few examples will suffice.

[105] When it was put to T.A.D. that she made fun of J.W.’s acne (established in the electronic messages), T.A.D. agreed but added that all the things T.A.D. said to her, J.W. had said to

T.A.D. As an aside, there is no evidence that T.A.D. even had acne during the period of their relationship. T.A.D. gave a similar response when confronted with a message in which she called J.W. a “Batty Gal”; she agreed it was an insult but said that she was simply insulting J.W. in the way J.W. would insult her. Other examples include:

a. When it was put to T.A.D. that she felt entitled to J.W.’s attention, her response was that J.W. felt entitled.

b. It was suggested to T.A.D. that the volume of messages show just how angry she was; she replied that when they would argue, J.W. would do the same thing to her.

c. The Crown asked if she was unrelenting; according to T.A.D. it was the same way

J.W. messaged her.

d. When confronted with the fact that she did not leave J.W. alone despite her request, T.A.D.’s evidence was that J.W. never left her alone.

[106] On other occasions in the evidence, T.A.D. refused to initially acknowledge things she said in the messages were true. For example, in one message T.A.D. told J.W. she was making

T.A.D. angrier. The Crown put it to her that she was angry. T.A.D. responded that she was upset. The Crown suggested that she did not type out upset. T.A.D. again responded that she was upset. Finally, the Crown got her to admit that she used the word angry and did so because that was how she felt.

[107] On other occasions, T.A.D. refused to admit the obvious. When the Crown suggested that she bullied J.W. over what she believed her sexuality was, T.A.D. disagreed. The electronic messages are repleted with negative comments about J.W.’s sexuality.

[108] Finally, during some portions of her evidence she seemed to imply J.W. was deliberately setting her up. This evidence had a conspiratorial undertone and was highly implausible. For instance, when the Crown put to her in cross-examination that the first page in the diary, she reviewed just happened to be about J.W. being attracted to her, T.A.D. seemed to suggest that

J.W. had maybe set her up and had left it there on purpose.

[109] The defence argues that T.A.D. references the diary in the messages and that she would only have done so if it were true. I cannot accept this proposition. People may lie to one another in text messages and emails. The mere fact that it was said does not make it true. In fact, I conclude that the messages are full of self-serving but untrue statements by T.A.D., for instance with respect to whether J.W. had asked for gifts.

[110] Given that I do not accept T.A.D.’s evidence with respect to the communications between her and J.W. and find that it does not raise a reasonable doubt, I must consider whether the Crown has proven the essential elements of criminal harassment beyond a reasonable doubt.

[111] Although the time frame particularized in the Indictment is from October 2020 to March 2021, the vast majority of the communication is from late December 2020 until the end of February 2021. There are a large number of messages over a couple of days in October, none in

November and a sprinkling in the first three weeks of December. In cross-examination J.W. agreed that she had some communication with T.A.D. during this period, saw her at family outings, slept over on at least one occasion in mid-December and asked to borrow T.A.D.’s car on December 20^th. Although she testified that she blocked T.A.D. at one point and that some of the emails sent in October made her anxious, I cannot conclude beyond a reasonable doubt that she was in fear for her safety during the period from October until the end of December. The evidence of fear is limited. She appears to have unblocked T.A.D. for a significant portion of that time. Importantly, she felt comfortable enough to ask T.A.D. to borrow her car and sleep over at her house as late as mid-December.

[112] Matters took a turn for the worse, however, by the end of December. Whether this is because J.W. failed to return the car promptly (as alleged by T.A.D.) or for other reasons, I cannot say. The electronic communications suggest that T.A.D. had numerous complaints about J.W., the primary one was that she was being ignored.

[113] On December 28^th, 2020, J.W. emailed T.A.D. to tell T.A.D. to leave her alone and indicated she might have to get a peace bond. This did not have the desired effect. What followed was a veritable flood of emails and iMessages from T.A.D. to J.W. with very few breaks over the next couple of months. The tone of the communications alternates between bullying, rude, crass, pleading, threatening and remorseful. There are very few responses from

J.W. From time to time, she asks to be left alone.

[114] The defence argues that the messages lack context; that what was really happening was a parallel conversation occurring either via phone calls or through messages that J.W. deliberately did not disclose.

[115] I do not accept this submission.

[116] While it is true that there were some phone calls during this period as well as some messages that were not provided to police (as conceded by J.W.), it is simply not possible that there was a whole side conversation in which it was actually T.A.D. who was being harassed. The sheer volume, as well as the content, of the messages from T.A.D. belie any suggestion that

this was occurring. The central theme of the messages is that T.A.D. is upset and despairing of the fact J.W. is ignoring her. If there were indeed a parallel conversation, then there would be no need for T.A.D. to feel this way and to continuously message J.W. in an effort to get a response. Particularly telling is an email sent on February 1^st, 2021. It reads:

[J.W.].. you said a month and I can talk to you. It’s been a month it’s Feb 1st. I miss you bad.

[117] The obvious inference is that they had not spoken for a month at J.W.’s request.

[118] Furthermore, T.A.D. had access to J.W.’s phone records because she paid for the phone. Records from May 2020 were entered as an exhibit at trial. They show numerous calls from

J.W. to T.A.D. over a short period of time. J.W. conceded in her evidence that she had made these calls. It is of note, however, that the messages predate the period at issue by almost six months. When the Crown asked T.A.D. why she did not produce any phone records for the period from October 2020 to March 2021, her response was that she could only go back one year. When it was pointed out to her that that records for this period were actually closer in time, she agreed but insisted that J.W. called her. Although the records would have been available to her, T.A.D. provided no answer as to why they were not produced. The most reasonable inference is that they would not have been of assistance.

[119] As noted above, J.W. agreed that there may have been a few calls and texts with T.A.D. during this period. For instance, J.W. testified that she was pretty sure at one point she said thank you to gifts that were dropped off because T.A.D. left voicemails saying she would leave her alone if she would just say thank you and apologize. I accept this evidence. It is consistent with the position taken in many of the messages sent by T.A.D.

[120] A brief call or two to T.A.D. to attempt to get her to stop the harassment does not mean that J.W. did not fear for her safety. Simply ignoring T.A.D. was having little effect. T.A.D. continued to not only repeatedly message J.W. but to also show up at her home and her work.

[121] The defence argues that J.W. testified that the repeated communications made her anxious, which is not the same as fearful for safety. While it is true that J.W. frequently used the word anxious or anxiety in her testimony, I understood her to mean that she was anxious for her

emotional wellbeing (it should also be noted that on other occasions she testified that she was scared). As noted in Szostak, fear for safety can be a state of anxiety or apprehension concerning the risk of substantial psychological harm or emotional distress. She was not seriously challenged on her reaction to the repeated communications in cross-examination. Rather, the focus on the cross-examination seemed to be on getting J.W. to understand why T.A.D. would feel used by J.W., a prime focus of T.A.D. in her own evidence.

[122] J.W.’s psychological well-being was affected in a number of ways:

a. Fear that T.A.D. would start contacting her friends, uncertain as to what would be said (emails on December 27 and 30, 2020, for example).

b. Fear that T.A.D. would try to turn her family against her (email on December 31, 2020).

c. Fear that T.A.D. was stalking her (emails were sent, often with photos attached, from T.A.D. outside her residence having not been invited on December 31, 2020, and January 14, 2021).

d. Fear that T.A.D. would physically assault her (for example, emails on January 15, 2021).

e. Fear that T.A.D. would come to her work and cause a scene (messages from February 5, 2021).

f. Fear of the unknown (message from January 27, 2021, in which T.A.D. states that she knows T.A.D.’s number, where she lives, her friends, her schools and work).

[123] This is not a case in which J.W.’s anxiety is only apparent after the fact. As early as December 28, 2021, J.W. told T.A.D. that she was giving her nothing but anxiety, that she wanted to be left alone and was contemplating getting a restraining order.

[124] There is no requirement that J.W. cite the words “fear” and “safety” as if they were part of a magic incantation. What is important is whether the evidence establishes a subjective fear

for safety. Here, the evidence establishes that J.W. was in a state of anxiety concerning the risk of emotional distress. Given the combination of the above noted factors, the emotional distress was substantial. This element of the offence is proven beyond a reasonable doubt.

[125] Were J.W.’s fears reasonable in the circumstances? I find that they were. In so finding, I have considered the sheer volume of the communications, the insulting and at times threatening content of some of the messages, and the age and power imbalance in the relationship.

[126] Was it reasonable to fear that T.A.D. would contact her friends? T.A.D. eventually did just that.

[127] Was it reasonable to fear that T.A.D. would turn her family against her? T.A.D. threatened to do it and had made good on her threat to contact J.W.’s friends.

[128] Was it reasonable to fear that T.A.D. would stalk her? She had done so in October 2021 and did so again on several occasions even after J.W. had asked T.A.D. to leave her alone.

[129] Was it reasonable to fear that T.A.D. would physically assault her? In an iMessage

T.A.D. wrote “watch when I see your fucking ugly ass I’m going to punch the shit out of u for all the times u punched me.” It matters not that J.W. had punched T.A.D. before or that J.W. was physically bigger. There is no guarantee as to what will happen in any given altercation. It was reasonable for J.W. to fear for her physical safety in light of this threat.

[130] Was it reasonable to fear that T.A.D. would come to her work and cause a scene? Again,

T.A.D. did just that. S.L.’s unchallenged evidence was that J.W. told her she did not feel safe leaving work with T.A.D. outside and had to come back to pick her up.

[131] During the relevant period, T.A.D. repeatedly communicated with J.W., engaged in threatening conduct, and watched her at her residence and workplace. The evidence overwhelmingly establishes that J.W.’s fear was reasonable in all the circumstances.

[132] As a result, I find T.A.D. guilty on count four.

Carter J.

Released: January 16, 2022

Released: January 16, 2023

COURT FILE NO.: 21-4562

DATE: 2023/01/16

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

T.A.D.

Accused

REASONS FOR DECISION

Carter J.