Her Majesty the Queen v. Alain Godard, 2023 ONSC 3528
COURT FILE NO.: CR 2019-23 DATE: June 13, 2023
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Her Majesty the Queen – and – ALAIN GODARD
Counsel: Raphael Feldstein for the Crown James Foord for the defendant
HEARD: June 5, 6, 7 and 9, 2023
VERDICT AND RULING ON APPLICATION TO LIFT PUBLICATION BAN
S. Gomery J.
[1] Alain Godard is charged with one count of assault under s. 265 of the Criminal Code; one count of sexual assault under s. 271, and one count of forcible confinement under s. 279(2). The Crown accuses Mr. Godard of committing the sexual assaults and forcible confinement between September 2018 and May 1st, 2019, and the assaults between December 25, 2018 and May 1st, 2019. The complainant, Lisa Sills, is married to Mr. Godard and they were living together at the time.
[2] Mr. Godard’s trial took place on June 5, 6, and 7, 2023. This is my verdict. I am also ruling on the Crown’s application to lift the remaining publication ban on the proceeding.
Should the s. 486.4 publication ban be lifted?
[3] On June 20, 2019, a publication ban was issued by Justice of the Peace F. Pilon with respect to these proceedings under s. 486.4 of the Criminal Code. (A further publication ban under s. 539(1) was issued by Pelletier J. on October 18, 2019, but this ban lapses automatically at the end of this trial.) At the request of the complainant, the Crown has applied for an order that the s. 486.4 ban be revoked, regardless of the outcome of this case, so that the complainant’s identity can be freely disclosed.
[4] Section 486.4(1) provides that “the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way”, in proceedings listed at s. 486.4(1)(a), which include sexual assault. Section 486.4(2) makes the order mandatory on application by the Crown, the victim, or a minor witness:
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
[5] Any person who breaches a s. 486.4 publication ban is guilty of a summary conviction offence under s. 486.6(1). “Any person” includes a complainant. As a result, a complainant may be prosecuted for identifying herself as a victim of sexual assault, even if she did not seek a publication ban or consent to it.
[6] The open courts principle generally dictates that court proceedings are public. This ensures not only that justice is done but is seen to be done. There are competing considerations that, in some instances, justify a limitation on public access to proceedings. Section 486.4, for example, was enacted to protect the privacy and dignity of victims of sexual offences, to save them from embarrassment, and to encourage other victims to come forward: R. v. T.H.S., 2019 ONSC 3244, at para. 8.
[7] There is no provision in the Criminal Code for lifting a s. 486.4 publication ban. Canadian courts have nonetheless granted applications to lift publication bans to allow the identification of sexual assault complainants in appropriate circumstances: R. v. Kristian, 2018 ABPC 36, at para. 47; R. v. Ireland, [2005] O.J. No. 5244 (ONSC). In R. v. Adams, [1995] 4 S.C.R. 707, at paragraph 32, the Supreme Court stated that “if…both the Crown and the complainant consent, then the circumstances which make the publication ban mandatory are no longer present and, subject to any rights that the accused may have under s. 486 (3), the trial judge can revoke the order.”
[8] The trial in this case has ended. Even after a trial, however, a court retains the authority to supervise access to the record of its own proceedings, “to ensure compliance with the constitutionally‑protected open court principle and the protection of other important public interests against which it must be weighed”: Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, at para. 6.
[9] In this case, the complainant has evidently decided that her interests are better served by an ability to disclose her involvement in these proceedings. She has signed a form prepared by the Crown, in which she confirms that she agrees that the publication ban should be revoked, and that she has had either obtained legal advice about doing so or has had the chance to obtain such advice. Based on this document, I am satisfied that the complainant understands the implications of the ban being lifted. The Crown supports the issuance of the proposed order. The defence does not object.
[10] Lifting the ban in this case will not undermine the right of complainants or the Crown to obtain publication bans in other sexual offence prosecutions or, in my view, discourage other complainants from coming forward. The complainant has two minor children, but they were not witnesses in the proceedings nor are they identified by name in the decision.
[11] I conclude that no interests are served by the continuation of the s. 486.4 publication ban. I therefore grant the application. The publication ban is lifted.
The evidence on the charges
[12] The only witness called at trial was the complainant, Lisa Sills. For the time being, I will focus on her evidence in chief. I will refer to her evidence in cross-examination at greater length when I assess whether the Crown has proved the charges.
[13] Ms. Sills is currently 49 years old. She and the defendant met in January 2018 and moved together to Rockland, a town East of Ottawa, six months later. They married in August 2018.
[14] When they first moved to Rockland in June 2018, Ms. Sills and the defendant rented a floor of a house. A little while later, they moved to another rented property, a house on St. Jacques Street. Ms. Sills’ two minor children lived with them when she had parenting time.
[15] Ms. Sills was managing a retail store when she and Mr. Godard met. For her birthday in 2018, he paid for her enrolment in a course so she could become an asbestos technician like him. When she completed the course, he encouraged her to apply for a supervisory job with his employer, GTA’s Finest Restoration. GTA offered to hire her, but as a general labourer rather than a supervisor. Although the labourer position paid $10 less per hour than her retail management job, Ms. Sills accepted GTA’s offer. This meant that, when she and Mr. Godard were working on the same job, as sometimes happened, he was effectively her supervisor.
[16] Ms. Sills testified that she took the job at GTA, despite the pay cut, only because the defendant agreed that he would contribute to their joint expenses. This was important to her as she had to pay child support and a car loan. After they got married, the defendant did contribute to some joint expenses but not as much as Ms. Sills thought he should.
[17] Ms. Sills testified that the defendant was charming when they first met and she was happy. After they moved to Rockland, they argued constantly about money, work, her weight gain, his relationships with other women, and other things. Ms. Sills acknowledged that she raised her voice first during many of the arguments but said that the defendant also raised his voice. She accused him of being verbally abusive, of calling her belittling names and criticizing her, from the time they moved to Rockland. She says he became physically abusive after the move to St. Jacques Street.
The incidents described by Ms. Sills
[18] Ms. Sills described seven incidents during which the defendant either assaulted or sexually assaulted her, and in some cases physically prevented her from leaving their house. She testified that the first two incidents occurred before Christmas 2018 and the others happened between Christmas 2018 and June 2019. She was otherwise unsure of the sequence of the incidents, all of which took place in the St. Jacques house when no one aside from Ms. Sills and the defendant were there.
[19] The first incident took place during a heated argument in the kitchen. According to Ms. Sills, the defendant walked over to her and put his hands around her throat. He did not apply any pressure. She could breathe but was not sure what he would do if she tried to walk away. The defendant’s hands remained around Ms. Sills’ neck for less than a minute. She does not remember why he removed them.
[20] The second incident happened the second or third week of December 2018. Ms. Sills and the defendant were once again arguing loudly. She was in the living room and he was in the kitchen. Ms. Sills became very angry. She was tired of how the defendant was treating her and feeling that nothing she did was good enough. Ms. Sills grabbed a lamp that the defendant had recently purchased at a garage sale and smashed it on the ground. When the defendant continued to shout at her, Ms. Sills grabbed the Christmas tree in the living room and pushed it over. It crashed to the floor, destroying ornaments that had belonged to the defendant’s deceased mother. Ms. Sills recalls that she apologized, but the defendant grabbed her and threw her across the room. She landed on the floor, hitting her right shoulder on the wooden bottom of a sofa. Ms. Sills began to cry. The defendant did not come over and ask if she was okay, but instead started to clean up the shattered ornaments and lamp. Ms. Sills could not recall how long she stayed on the floor before getting up and helping the defendant clean up.
[21] The third incident happened just after Christmas. Ms. Sills recalls that the defendant was very mad and speaking with a raised voice. They were in the dining area off the kitchen. The defendant put his hands around her neck and squeezed, so that Ms. Sills was forced to sit down on a chair. Ms. Sills’ breathing was not restricted but she did not feel like she could move or speak. One of the defendant’s hands was on top of the other. She could feel the pressure around her neck. She could feel his thumbs and one of his palms.
[22] According to Ms. Sills, the defendant continued to hold his hands around her neck for up to two or three minutes. His legs were straddling hers as she sat in the chair, so she could not get up. When the defendant finally moved away, Ms. Sills told him that she was leaving, but the defendant blocked her attempts to exit using the side or back door. Ms. Sills says she knew that she could not force her way past the defendant, as he was stronger than her. She eventually gave up and went to sit in the living room.
[23] The fourth incident was a sexual assault. During an argument in the kitchen, Ms. Sills told the defendant that he could not stop her from doing what she wanted to do. The defendant responded that he was the boss. Although the defendant had made similar comments before, Ms. Sills did not take the comment seriously and laughed. She did not recall if the defendant said anything. He grabbed hold of her upper arms, turned her around and steered her down the hallway to their bedroom. She was walking backwards while he was walking forwards. When they reached the bedroom, the defendant threw Ms. Sills onto the bed, on her back. The defendant climbed on top of her, straddled her legs and pinned her arms with his hands over her head using both of his hands.
[24] Ms. Sills testified that she understood that the defendant wanted to have sex with her. She asked him to stop and told him that she did not want it. She struggled but could not get away. The defendant told her that he knew that she wanted this. He tried to kiss her but she turned her head away. She again said she did not want it. The defendant said that he knew she liked sex, and she said “no” and that this was not a game for her. Although she continued to struggle, the defendant somehow prevented her from moving her head, and then pulled down her yoga pants and underwear off. Ms. Sills gave up trying to resist, concluding that the only way to end the assault was to let him have sex with her. The defendant penetrated her vaginally with his penis. The intercourse ended after he ejaculated. According to Ms. Sills, the defendant did not say anything while they were having intercourse. After he climaxed, he told her again that he knew that she wanted it, climbed off the bed and went to the bathroom. Ms. Sills started to cry.
[25] The fifth incident was another physical assault. Ms. Sills and the defendant were in the living room talking about whether they should split up. She wanted the defendant to admit that their relationship problems were all his fault while he said they were both responsible. Ms. Sills told the defendant “I’m done”, got up, and walked to the bedroom. The defendant pursued her. When she tried to leave the bedroom by scrambling across the bed, he followed her. She tried to crawl across the floor to the door but he caught up with her. He flipped her over onto her back and pinned her to the floor. He straddled her body with his legs and held her hands over her head with his two hands. Ms. Sills told him that this was not a game and she did not want him to do this. She told him to let her up and to get off of her. The defendant said that he was going to show her that he was the boss. He continued to pin her for ten or fifteen minutes, but finally relented and let her go.
[26] A sixth incident occurred when Ms. Sills told the defendant that she was leaving. She had her car keys in one hand and her book bag with clothing for her and her kids in the other. Ms. Sills pushed her way past the defendant, who was standing in the doorway of the second bedroom. He pried the keys out of her hand and dumped the contents of her bag on the ground. By that point, they were both in the kitchen. He then physically blocked her from leaving. Ms. Sills recalled that she was swearing and her voice was raised. She could not remember if the defendant said anything.
[27] The seventh and final incident that Ms. Sills could recall was another sexual assault. Ms. Sills was lying on the bed in the master bedroom one day. The defendant came in and said he wanted to have sex. She said she did not. He said she always did, and that if she did not want to have sex with him then she must be cheating. Ms. Sills told the defendant there was not anyone else but that she simply did not want to have sex with him. He said he would take what he wanted.
[28] According to Ms. Sills, the defendant got on top of her. She struggled but not for as long as she had during the first sexual assault. The defendant again straddled her body with his legs. Ms. Sills again said that she did not want to do this and that it was not a game. He tried to kiss her and she moved her head. She testified that she once again realized that, if she just let him think that she was agreeing, it would be done with. So she stopped resisting, and they had vaginal intercourse. She felt she had no other choice. The intercourse ended after the defendant ejaculated and got up to go the bathroom. He once again said, after he finished: “See, I knew you wanted it”. After the defendant left the room, Ms. Sills rolled over and began to cry.
The confrontation at Smiths Falls and Ms. Sills’ complaint to the police
[29] In May 2019, the defendant relocated temporarily to Smiths Falls for a work project. He was living in a camper while there. Ms. Sills testified that she drove to Smiths Falls, unannounced, in the evening of June 10, 2019. She wanted to confront the defendant after a coworker told her that the defendant had cheated on her during a work trip to Toronto earlier that year. Ms. Sills arrived at the camper and the defendant let her in. She told him to “Sit the fuck down” and to “Give me your fucking phones, right now” so she could see his text messages. She said that the defendant attempted to delete something on the phones before handing them over. About fifteen minutes later, Ms. Sills exited the camper, still carrying the phones. The defendant followed her outside, demanding that she give him his work phone back. Ms. Sills finally turned and threw the phones to the ground. She told the defendant that it did not matter because she knew the truth.
[30] When they arrived at Ms. Sills’ car, she wanted to leave but the defendant would not let her, even though it was raining. He continued to plead for her to talk to him for 90 minutes to two hours. He confessed that he had sexted with a woman but said nothing more had happened. Ms. Sills told him that, if he did not leave her alone after that day, she would tell the police about what he had done to her. He said he was sorry and admitted that he had been unfaithful but said he had been drunk. She was finally able to drive back to Rockland around midnight.
[31] After this confrontation, Ms. Sills blocked the defendant on her phone. He was however able to get in touch with her on a work account. She then unblocked him and they exchanged text messages, during which she told him that she was “done”. She called his brother Richard and begged him to get the defendant to stop talking about their relationship at work. On June 12, 2019, Richard forwarded a message from the defendant, in which he said “Stop your shit, Lisa. I will see you in 48 hours”. Ms. Sills testified that she took this as a threat.
[32] On June 13, 2019, Ms. Sills contacted the Ontario Provincial Police in Rockland. She initially showed an officer the defendant’s June 12 message. When the officer told her that the message sounded more like an argument between two married people than a criminal offence, she disclosed her allegations that the defendant had assaulted, sexually assaulted, and forcibly confined her.
[33] In chief, Ms. Sills testified that she did not leave the defendant before June 2019 because she blamed herself for provoking some of their verbal and physical fights, and she thought perhaps they could recapture the initial happy days of their marriage. She had no savings and lacked the ability to find a new job because the defendant was always around at home or at work. She did not want to seek refuge in a shelter because of the impact this would have on her children. Ms. Sills cried when testifying about how she had told the defendant that she would leave an abusive partner, but then remained with him after he became abusive. She did not want to report the assaults to the police but felt she had no choice when she received the June 12 message from him.
Legal framework
[34] Mr. Godard is presumed innocent. To obtain a conviction, the Crown must prove, beyond a reasonable doubt, that he has committed one or more of the offences with which he is charged. The burden on the Crown never shifts. The defendant has the right to remain silent in the face of the charges. He does not have to testify. An accused has the right to argue, as Mr. Godard does here, that the Crown has simply failed to prove its allegations beyond a reasonable doubt.
[35] Reasonable doubt is “based on reason and common sense … logically derived from the evidence or absence of evidence”: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 39. The Crown does not need to prove the allegations to an absolute certainty, or beyond any imaginary or frivolous doubt: Lifchus, at para. 39. It must, however, prove each element of a charge beyond a reasonable doubt. Simply put, I must be certain that the events alleged by the complainant happened to find Mr. Godard guilty.
[36] This case turns entirely on Ms. Sills’ testimony. I must assess her evidence taking into account her age, mental development, understanding, and ability to communicate: R. v. W.(R.), [1992] 2 S.C.R. 122, at p. 134. No witness is perfect, and it would be astonishing if someone testifying about events that occurred four years earlier had a perfect memory of them. A victim of a violent crime may not remember every detail, and their ability to recall what happened may vary over time.
[37] A complainant may sincerely believe that they are telling the truth and yet be mistaken, due to the frailty of memory. As Molloy J. eloquently explained in R. v. Nyznik, 2017 ONSC 4392, at para. 15, a judge’s task in an assault trial is not just to determine whether a complainant is telling the truth as they perceive it, but whether their evidence is sufficiently reliable to convict the accused:
Reliability has to do with the accuracy of a witness’ evidence – whether she has a good memory; whether she is able to recount the details of the event; and whether she is an accurate historian. Credibility has to do with whether the witness is telling the truth. A witness who is not telling the truth is by definition not providing reliable evidence. However, the reverse is not the case. Sometimes an honest witness will be trying her best to tell the truth and will fervently believe the truth of what she is relating, but nevertheless be mistaken in her recollection. Such witnesses will appear to be telling the truth and will be convinced they are right, but may still be proven wrong by incontrovertible extrinsic evidence. Although honest, their evidence is not reliable. Only evidence that is both reliable and credible can support a finding of guilt beyond a reasonable doubt.
[38] Inconsistencies in a complainant’s evidence may give rise to reasonable doubt. A complainant may contradict her earlier testimony under cross-examination or give a different account at trial than she did in police statements or another hearing. Witnesses are not expected to have perfect recollection, but inconsistencies can demonstrate a carelessness with the truth: R. v. G.(M.), 1994 CarswellOnt 181, at para. 23. A single minor inconsistency will not diminish a witness’ credibility, but a series of inconsistencies or a single inconsistency on a major point may do so. The trier of fact “should look at the totality of the inconsistencies in order to assess whether the witness’ evidence is reliable”: R. v. Bowe, [1993] B.C.J. No. 758 (C.A.), at para. 29.
Has the Crown proved the charges?
[39] If I conclude that Ms. Sills’ account is sufficiently reliable and credible to satisfy the Crown’s burden, I would have to find Mr. Godard guilty of all three charges. The complainant has described acts that constitute assault, sexual assault, and forcible confinement.
[40] Ms. Sills gave an emotional account of a marriage that swiftly deteriorated into a toxic relationship. She described, in detail, how arguments escalated into fights and non-consensual sex, and how the defendant sought to exert his control over her. I accept Ms. Sills’ explanation for why she would have remained with the defendant despite the alleged abuse. Her personal situation and history, her finances, and her employment made her vulnerable.
[41] I reject the defence suggestion that Ms. Sills’ willingness to stand up for herself in arguments with the defendant throughout their relationship is incompatible with her allegation that he abused her and that she sometimes felt physically threatened by him. A victim of domestic abuse may downplay episodes of violence. They may blame themselves for them and irrationally hope that the cycle of violence will stop if they act as though past assaults did not happen. This is the very pattern of behaviour that Ms. Sills described.
[42] Finally, I reject any inference that Ms. Sills is less likely to be telling the truth about the assaults because she did not report them immediately. Such an inference is based on a stereotypical assumption about how a person who is abused will behave, and must be firmly rejected: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at p. 304. As stated in D.D., at p. 305, “A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.”
[43] The defence relied on inconsistencies between Ms. Sills’ evidence at trial and her statement to police and discovery evidence in 2019. Some of the inconsistencies relied on by the defence were minor. For example, Ms. Sills conceded, in cross-examination, that her evidence about how exactly the defendant took her car keys from her changed over time. Her recollection of how she threw the phones during the confrontation with the defendant at Smiths Falls, and how exactly she pulled the Christmas tree down, also varied. I do not regard these inconsistencies as having much bearing on Ms. Sills’ overall credibility. As mentioned earlier, no witness can be expected to have a perfect memory or to describe events exactly the same way on each retelling.
[44] I do, however, find that some aspects of Ms. Sills’ evidence affect its overall reliability and her credibility.
[45] First, Ms. Sills was unable to recall significant details about the assaults and other important events in her life in 2018-19.
[46] For example, Ms. Sills could not remember how the defendant disrobed her during the first alleged sexual assault. She testified that he was using both hands to hold her hands above her head from the time he climbed on top of her until he penetrated her. She had no recollection or explanation for how, in light of this, he was able to remove her yoga pants and underwear.
[47] In all but one instance, Ms. Sills could not recall what she and the defendant were arguing about when he allegedly assaulted her.
[48] Ms. Sills had significant gaps in her memory about her interactions with the Children’s Aid Society while she was living with the defendant. She admitted, in cross-examination, that the fathers of her two minor children applied to CAS to limit or end her parenting time due to concerns about the defendant’s presence in her home. Ms. Sills submitted affidavits in response to these applications. She initially said that she may have signed only one, but later conceded that she submitted at least two and as many as six affidavits in the CAS proceedings between July 2018 and April 2019. She did not mention the CAS proceedings in her examination in chief, even though she acknowledged, in cross-examination, that they were a stressor on her and on her relationship with the defendant, and they were one of the reasons why she delayed ending the marriage and disclosing the defendant’s abuse. I conclude that either she was unable to remember an important aspect of her life at the relevant time without being prompted or that she was being less than frank in her evidence in chief.
[49] Another memory gap concerns her living situation. Ms. Sills said she could not recall whether she and the defendant had moved to the St. Jacques house before or after they married on August 18, 2018. Her explanation for this was that she had repressed some traumatic memories. A wedding is not typically a traumatic memory, and I find it unusual that someone would forget where they were living when they got married.
[50] Ms. Sills acknowledged some memory lapses. She pointed out that the assaults happened four years ago and that she has tried hard to push the memories away. She nonetheless maintained that her memory was reliable, in part because she had flashbacks. So, while she could not remember specific words that she and the defendant exchanged at various times, she said she could distinctly recall the tone and volume of their voices and the defendant’s facial expressions during the assaults.
[51] As already observed, a victim of violence may legitimately recall certain details but not others, especially if they are testifying years after an assault. But the Crown’s case is weakened when its only witness cannot remember key elements of an alleged assault, or when they cannot remember important events that happened around the same time.
[52] A second problem is that one of Ms. Sills’ memories was demonstrably inaccurate. In cross-examination, she was asked if she phoned the police before going to the station in Rockland on June 13, 2019. She insisted that she had not. When pressed, she said that, before entering the station, she spoke to someone inside using a receiver set up outside for that purpose, but she definitely did not call using a phone. Based on a recording played by the defence, however, Ms. Sills did phone the police on June 13, 2019 at 6:21 a.m., not from outside the station but while she was driving in her car. During this call, she agreed to come to the station later that day. Confronted with this recording, Ms. Sills ultimately admitted that she was mistaken.
[53] This error is not central to Ms. Sills’ account of the alleged assaults. It was, however, an important event in her life. What is yet more problematic is that she was absolutely adamant that she had not phoned police prior to coming to the station. She was dismissive of defence counsel’s suggestion that she might be mistaken until she was confronted with the recording. Ms. Sills’ mistaken certainty about this recollection casts doubt on the overall reliability of her testimony.
[54] Third, Ms. Sills admitted that she lied in two affidavits she swore on April 25, 2019, in the context of the CAS proceedings. In the first affidavit, Ms. Sills swore that the defendant was an upstanding and contributing member of society. In the second, she denied that he had threatened her former partner during a conversation with her minor son. In cross-examination, Ms. Sills said that those statements in her affidavits were untrue. Her explanation for making them was that she did not know how to escape her relationship with the defendant and she did not want to lose her parenting time. Whatever sympathy I may have for Ms. Sills’ situation at the time, her willingness to lie under oath is deeply concerning. She took the same affirmation to tell the truth on April 25, 2019 and when she took the stand at this trial. I must conclude that she is willing to lie to the court if she believes that she is justified in doing so.
[55] Fourth, Ms. Sills was sometimes evasive in cross-examination. Her answers would change depending on subtle changes in the wording of questions. She argued with defence counsel about the meaning of commonplace words such as “share”, “phone”, “surprise”, and “fact”. She asserted that, if she did not remember an event, she was entitled to deny that it might possibly have happened.
[56] Ms. Sills’ testimony sometimes crossed the line from combative to obstructionist. I find she deliberately understated her anger towards Mr. Godard. Ms. Sills denied that she deliberately smashed the living room lamp recently purchased by the defendant during the incident around Christmas 2018. I do not believe this, given how she described her rage during this argument. In cross-examination, Ms. Sills also denied that she was “very angry” when she pulled the Christmas tree down. This contradicted both her evidence in chief (during which she said she was “super angry”) and her discovery evidence (when she testified that she was “extremely” angry, and “angry beyond anything she’d ever experienced before”). She testified that she was even angrier when she later discovered that the defendant had sent a former girlfriend a flirtatious message.
[57] I do not think that Ms. Sills was always candid in her testimony. She insisted that the only reason why she reported the assaults to the police on June 13 was because she perceived the defendant’s June 12 message as a threat. This is inconsistent with her acknowledgement of her intense anger when she suspected that the defendant might be unfaithful, her description of her emotional state when she drove to Smiths Falls to confront him, and the text messages she sent to him at the time. I find that Ms. Sills’ decision to report the defendant to the police was motivated, at least in part, by her reaction to confirmation of the defendant’s infidelity and his disclosure to coworkers about problems in their relationship.
[58] To be clear, I am not inferring that Ms. Sills must have fabricated assault allegations because she was upset with the defendant. In my view, however, her discovery that he was cheating and talking to their coworkers about their relationship played a significant factor in her decision to go to the police when she did. I find that her testimony on this point was insincere. This bears on my assessment of her overall credibility.
[59] Another aspect of Ms. Sills’ evidence regarding her criminal complaint does not ring true. She testified that she went to the police because she was scared not only for herself but for her coworkers. Her suggestion that the defendant posed any threat to her coworkers was not grounded in any evidence, and I do not see how she could have sincerely believed this.
[60] Ms. Sills’ explanation for why she gave up her retail job and took a pay cut to work as an asbestos technician again shows that her evidence was sometimes selective and strategic. In chief, Ms. Sills said that she did this only because the defendant offered to contribute to their joint expenses. In cross-examination, she admitted that she and the defendant discussed starting their own business once she gained some experience in this field, allowing them to earn much more than they would as employees. I find that her initial explanation was incomplete, at the very least.
[61] The complainant’s accounts of the assaults themselves were not, for the most part, directly challenged. Crown counsel contends that the issues with her evidence concern peripheral details. Some of the issues are not peripheral. I am moreover obliged to assess the totality of Ms. Sills’ evidence to determine whether it is generally reliable and credible. If it is not, I am bound to have reasonable doubt about whether I can rely on her evidence with respect to the charges.
Disposition
[62] The burden is on the Crown to prove, to a criminal standard, that Mr. Godard committed the offences. It is not enough for me to think that he likely assaulted, sexually assaulted, or forcibly confined Ms. Sills. I cannot convict him unless I am certain that he did.
[63] Earlier in these reasons, I reproduced a passage in Molloy J.’s decision Nyznik on the difference between credibility and reliability. She went on to observe that the focus of a criminal trial is not the vindication of a complainant’s account but whether the accused has committed a criminal act for which he may be imprisoned. At para. 16, Molloy J. noted that:
[A] judge is frequently required to scrutinize the testimony of a complainant to determine whether, based on that evidence alone, the guilt of an accused has been proven beyond a reasonable doubt. That is a heavy burden, and one that is hard to discharge on the word of one person. However, the presumption of innocence, placing the burden of proof on the Crown, and the reasonable doubt standard are necessary protections to avoid wrongful convictions. While this may mean that sometimes a guilty person will be acquitted, that is the unavoidable consequence of ensuring that innocent people are never convicted.
[64] Having carefully scrutinized Ms. Sills’ evidence, I conclude that it does not allow me to be sure that Mr. Godard committed the criminal acts with which he is charged. There is reasonable doubt.
[65] Please stand, Mr. Godard.
[66] I find you not guilty on the three charges on the indictment.
Justice Sally Gomery Released: June 13, 2023