COURT FILE NO.: CR-20-597-00 DATE: 2023 07 20
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – R.V.
Counsel: D. Ida, for the Crown D. Paradkar, for the Accused
HEARD: March 14, 15, 17, 20, 21, 23, 2023
REASONS FOR JUDGMENT
L. Shaw J.
Introduction
[1] The complainant, N.C., alleges that on two separate occasions, November 10, 2018 and February 18, 2019, the accused sexually and physically assaulted her and confined her to his bedroom. N.C. and the accused knew each other but the nature of their relationship is in dispute.
[2] The accused, R.V., has pleaded not guilty to two counts of sexual assault, contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”), one count of unlawful confinement contrary to s. 279(2) of the Code, one count of assault contrary to s. 266 of the Code, one count of attempting to choke contrary to s. 246(a) of the Code and one count of uttering a threat to cause death contrary to s. 264.1(1)(a) of the Code in connection with these two events. The accused was tried by me, sitting without a jury.
[3] The Crown called two witnesses: the complainant and her cousin. The accused testified on his own behalf.
[4] R.V. does not deny that on the days in question, he and N.C. engaged in sexual activity, but says it was consensual. He also denies assaulting, choking, threatening, or confining her.
[5] Given the conflicting evidence, the credibility and reliability of the witnesses who testified is central to determining if the Crown has proven the accused’s guilt beyond a reasonable doubt.
[6] Prior to trial, Justice Harris released an endorsement after hearing applications brought by both the Crown and defence to rely on other sexual activity involving N.C.: R. v. R.V., 2021 ONSC 7775. Justice Harris granted the Crown’s application to lead evidence that N.C. told the accused that she had a sexual interaction with another individual while in Jamaica prior to the alleged sexual assault on February 18, 2019. The relevancy of that evidence is that it goes to R.V.’s state of mind and possible motive, one of jealousy, for the assault and sexual assault on February 18, 2019. In his ruling, Justice Harris found that there did not need to be any specifics of what N.C. told R.V. about the sexual relations in Jamaica but would leave it to the trial judge.
[7] In his ruling, Justice Harris noted that the defence sought to adduce evidence that N.C. and the accused had an off-and-on sexual relationship. He found that if the Crown led evidence that N.C.’s interaction with the other person in Jamaica was sexual, as he thought it should, there should also be evidence led that there had been a prior sexual relationship between N.C. and R.V., with specifics kept to a minimum.
[8] I heard further submissions on the first day of trial regarding this issue. Based on Justice Harris’ ruling, the Crown indicated that it intended to lead evidence about the nature of N.C.’s relationship with R.V. and it did not oppose the defence adducing evidence that the nature of his relationship with N.C. was a non-exclusive sexual relationship.
[9] For oral reasons given, I found that the defence would be permitted to cross-examine N.C. and lead evidence regarding the nature of her relationship with the accused and that it was a non-exclusive sexual relationship. In my view, that evidence is admissible solely for the purpose of addressing the issue of motive given the Crown’s theory that R.V. was jealous and angry with N.C. when she told him about the other individual in Jamaica as they were in an exclusive intimate partner relationship at the time.
[10] To be clear, the purpose of the introduction of evidence of N.C.’s other sexual activity does not violate either of the twin myths. I have not considered that evidence in assessing if N.C. is less worthy of belief or if she was more likely to consent to sexual activity with R.V. The evidence of other sexual activity is admitted for the limited purpose of motive and does not engage either of the twin myths.
Background
[11] N.C. and the accused first met over social media in January 2018 through the exchange of messages on Instagram. They subsequently met in person and began seeing each other regularly. By May 2018, N.C. believed they were in an exclusive relationship. She testified that while she was not seeing anyone else, she did not know if the accused was still seeing other people.
[12] R.V. described their status in November 2018 as “friends with benefits” meaning they were free to see other people. It was not an exclusive relationship, and he did not consider N.C. to be his girlfriend.
[13] N.C spent weekends with the accused at his condominium. While there is some contested evidence about whether they saw each other every weekend or every other weekend, there is no dispute that they saw each other regularly up to November 10, 2018.
[14] As is now common, throughout their relationship, N.C. and R.V. used various social media platforms to communicate including texting on iMessage, and sending direct messages on Instagram, Snapchat, and WhatsApp. Both testified that messages exchanged on Snapchat disappear after they are opened, if not saved. None of the messages exchanged on any of these social media platforms were introduced as evidence.
[15] In October 2018, the accused travelled to the Dominican Republic for a holiday. While there, he engaged in sexual activities with two other women. He told N.C. about this when he returned and suggested she get tested as he thought he might have a sexually transmitted disease. He testified that N.C. was upset when he told her, but she got over it. N.C.’s evidence was that she felt sad as R.V. cheated on her, but she denied that she was upset. Her evidence was that she continued to see him after he told her and nothing in their relationship changed.
[16] N.C. went to R.V.’s condominium on November 10, 2018 to retrieve her phone charger as she was leaving in a few days to travel to Jamaica. The evidence of N.C. and R.V. about what transpired after N.C. arrived is diametrically opposed. N.C.’s evidence is that she was sexually assaulted and confined against her will whereas R.V.’s evidence is that they engaged in consensual sexual activities.
[17] The following day, on November 11, 2018, N.C. called her cousin and went to the hospital. In an Agreed Statement of Fact, it was agreed that a sexual assault examination kit was conducted by a sexual assault nurse examiner at Chantel’s Place at Trillium Hospital. Swabs were collected of the anal, external genitalia and vaginal area and submitted to the Centre of Forensic Sciences (“CFS”) for analysis. CFS testing of the swabs found a DNA match to Mr. Vanriel and no other person in the form of semen.
[18] N.C. travelled to Jamaica for a vacation and to see family between November 14 and December 17, 2018. She then returned to Canada with her niece, from Jamaica, for approximately one week and then travelled back to Jamaica. She returned to Canada at the end of January/beginning of February 2019. She did not see the accused during the week she returned to Canada.
[19] R.V. contacted N.C. the week she was in Canada and left a voicemail message for her. The recording of that message was disclosed by N.C. the first day of trial. The date stamp on the message was December 25, 2018. In the recording, R.V. said it was her ex-husband calling, he was thinking about her, and he wished her merry Christmas. He then said he did not get around to signing the divorce papers and would see her when she got back.
[20] N.C. and R.V. both testified that they messaged each other while she was in Jamaica, but there is a dispute about what was discussed. For example, there is a dispute about whether R.V. apologized to N.C. in these messages.
[21] At some point while she was in Jamaica, N.C. told R.V. that she engaged in sexual activities with another individual in Jamaica. There is disputed evidence about R.V.’s response and whether he was upset with her.
[22] After N.C returned to Canada, she went to R.V.’s condominium the evening of February 18, 2019. According to N.C., after she arrived, she was violently sexually assaulted, assaulted and confined against her will whereas R.V.’s evidence is that they engaged in consensual sexual activities.
[23] There is contested evidence about whether N.C. and R.V. saw each other prior to February 18th after she returned to Canada and after February 18th.
[24] N.C went to the Orangeville police on March 4, 2019, as R.V. was calling her repeatedly. When she reported these unwanted phone calls and the sexual assaults, she was told to go to the Peel Regional Police to report the sexual assaults, which she did on March 7, 2019.
[25] The recordings of these phone calls were not produced as disclosure for the charges before the court. When N.C. was cross-examined, it was put to her that these recordings did not exist; defence counsel was unaware of them. As a result, following her cross-examination, the Crown obtained the recordings and provided them to defence counsel. An Agreed Statement of Fact was then filed. It was agreed that N.C. attended at the Orangeville Police Station to report unwanted phone calls from the accused, the nature of which caused N.C. to fear for her safety. She provided six recordings to the Orangeville Police of phone calls between herself and R.V. between February 25, 2019 and March 3, 2019. R.V. was unaware that the phone calls were being recorded.
[26] It was also agreed that in her statement to the Orangeville Police, N.C. stated that she disclosed the sexual assaults to her friends, S.M and C.D., as she testified in chief. They both gave statements to the Orangeville Police on March 4, 2019.
Positions of the Parties
[27] It is the Crown’s position that N.C.’s evidence of Mr. Vanriel sexually and physically assaulted her is reliable, credible, and should be believed. The Crown argues that any inconsistencies with her evidence are with respect to peripheral matters and that she was not challenged on the core allegations of the sexual and physical assaults on both dates in question.
[28] The defence argues that Mr. Vanriel was unshaken in his evidence, which was presented in a coherent and consistent manner. Defence counsel says his evidence should be accepted or, at minimum, raise a reasonable doubt.
[29] If I do not accept Mr. Vanriel’s evidence that he did not sexually assault N.C. or if I am not left with a doubt, the defence contends that the totality of evidence presented by the Crown that I do accept is insufficient to establish his guilt beyond a reasonable doubt. The defence argues that there were several inconsistencies with N.C.’s evidence that should lead me to find that she was neither a credible nor reliable witness and I should therefore be left with a doubt. The defence also argues that N.C. had a motive to fabricate and make false accusations to the police as she was angry and upset with the accused for having sex with two other women in October 2018 and after he refused to admit her to his condominium on one occasion after February 18th was he was with another woman.
Review of the Evidence
i) Counts 1-2 of the Indictment: The Events of November 10, 2018
N.C.’s Evidence
[30] N.C. testified that she arrived at R.V.’s condominium between 9:30 and 10:00 pm on November 10, 2018. R.V. left the door open for her. When she arrived, he was watching a movie. She told him she was going to get her phone charger in his bedroom; she lay down on his bed and fell asleep. Before she went into the bedroom, she left her iPhone and Apple Watch, from which she could make telephone calls and send text messages, on the island in the kitchen.
[31] There was disputed evidence about whether the accused left his condominium while N.C. was there. R.V. testified that he was working for his uncle, who owned an electrical business, and he was called out for a few service calls. While N.C. does not dispute that on other occasions he would come and go, she did not agree that he did so on this date. In my view, nothing turns on the issue of whether R.V. came and went that day.
[32] N.C. woke up in R.V.’s bed to him hitting her leg and yelling at her to wake up. In an aggressive and angry tone, he told her to take off her clothes. She was confused and his tone made her feel uneasy. She said “no” and started to back up on the bed to get away from him. He told her repeatedly to take her clothes off or he would do it for her and she repeatedly said “no”. He straddled her and took her pants off. She yelled at him to stop. He then flipped her onto her stomach, tore her fishnet stockings in her buttock area, pulled her underwear to the side, and anally penetrated her with his penis. She said it was painful. She screamed at him to stop and banged on the window to her right. He was not wearing a condom and she did not know if he ejaculated. She did not know how long it lasted but thought it was a few minutes. He held the back of her neck and pushed her into the bed while he penetrated her.
[33] The accused then flipped her over onto her back and penetrated her vagina with his penis. She told him to stop. He put his hand on her throat. She felt pressure. She could breathe slightly but could not really talk. He said to her, “oh my god, you must like this because you’re wet.” She testified that at that point she gave up and let him do whatever he wanted as she just wanted to go home. She felt helpless and scared. She was not sure if he ejaculated.
[34] N.C. testified that she went into the ensuite bathroom and locked the door as she did not want R.V. to come in. She sat on the floor for a couple of hours. When she left the bathroom, she saw the accused on his bed. She told him she wanted to leave but he walked to the bedroom door, blocked it, and told her she could not leave until the next day. She felt scared and powerless. She went back into the bathroom and locked the door until the following morning. She agreed that she never checked again to see if he was sleeping so that she could leave. She explained that she was scared that he could pretend to be sleeping.
[35] When she came out of the bathroom the following morning, she asked the accused if he knew or understood what he did. He told her he did nothing wrong. She said he raped her. He said he did not, but if he did, she deserved it.
[36] She agreed they did not argue before this assault and that it came out of the blue.
[37] N.C. called her cousin, O.L., when she left that morning. She told O.L she was in trouble and wanted him to meet her at the Credit View Hospital. From there she went to Chantel’s Place at the Trillium Hospital where a sexual assault kit was administered. It took two hours to complete.
[38] She testified that she went to the hospital as she had in pain in her vagina and anal area and wanted to make sure she was ok. She agreed with the suggestion that she had a sexual assault kit administered in case she wanted to press charges later.
[39] N.C. testified that she wanted to report this alleged sexual assault to the police but did not do so at that time as she was going to Jamaica in a couple of days and if she reported it, she would have to stay for an investigation. When asked if there was any other reason, after a long pause, she said “no”. When she was cross-examined, she agreed there was a pause when she answered and said there was another reason, but her answer remained that there was no other reason. I was confused by her answer, but no follow up questions were asked.
O.L.’s Evidence
[40] O.L. testified that N.C. called him on November 11, 2018. She was crying. She said she had been raped and was going to the hospital. He met her at the Credit Valley Hospital and then they went to the Trillium Hospital. He said N.C. seemed uncomfortable in her own skin. She was crying and appeared to be in shock. She was walking funny; she said her “ass” hurt.
The Accused’s Evidence
[41] R.V. testified that there was a security desk in the lobby of his condominium that was staffed 24 hours per day. It was a secure building and guests had to buzz from the front door to be admitted. His evidence was that the only way to leave the building was through the front entrance, past the security desk, unless you had access to the underground parking which N.C. did not have.
[42] On November 11, 2018, R.V. buzzed N.C. into his building between 9 and 10 pm. She entered his condominium and sat on the couch. She did not leave her phone in the kitchen but had it with her on the couch. He left three times during the evening to go on service calls for his uncle’s electrical business. He returned home around midnight after the last call.
[43] When he arrived home, he joined N.C on the couch. He suggested they go to his bedroom to continue watching television. They sat on his bed and began to make out, for about five minutes. They both undressed themselves. N.C. performed oral sex on him for five to ten minutes. She then straddled him, and they had vaginal intercourse; N.C directed R.V.’s penis into her vagina. He then went on top of her, and the intercourse continued for a few minutes. He then asked her to turn over so he could enter her from behind. After a few minutes, he asked if they could have anal intercourse and she said yes but to go slow. He reached for some lubricant in the bedside table. He and N.C. bought the lubricant one month earlier at an adult store as they had discussed having anal intercourse and decided to buy lubricant to make it easier. He applied it to his penis and her anus, and they had anal intercourse for about ten minutes.
[44] After he ejaculated, he went to the washroom to clean himself. He brought her a towel to clean herself and they went to sleep. When she woke him the following morning, he walked her to the door, gave her a hug, and went back to bed. He said she was smiling when she left.
[45] His evidence was that N.C. behaved as if she enjoyed the sex. She initiated the oral sex. He denied yelling at her or using an aggressive tone. He did not rip her pantyhose or choke her. She did not lock herself in the bathroom. He said the bathroom does not have a lock.
[46] He did not know she went to the hospital or had a sexual assault kit done until after he was charged.
ii) Contact After November 10, 2018
N.C.’s Evidence
[47] N.C. testified that when she received the voicemail message from the accused in December 2018 describing himself as her ex-husband, she felt that he was mocking the situation.
[48] N.C. testified that in December 2018, while in Jamaica, R.V. messaged her over Snapchat and WhatsApp. She was confused about why he was contacting her. She testified that in these messages, R.V. apologized, said he missed her, and wanted to see her when she came back to Canada. N.C. responded to these messages on Snapchat and asked R.V. if he was going to take accountability for what he did in November. Her evidence was that she wanted to know if he was actually sorry. He responded and said they would talk when she got back to Canada.
[49] After the accused apologized, N.C. messaged him that she slept with someone in Jamaica. She told him this because he told her about getting a sexually transmitted disease after sleeping with other women in October 2018 in the Dominican Republic. She explained that as he told her what he did, she told him what she did. Her evidence was that when she told R.V. about this, she was in the process of forgiving him as she wanted to make peace for herself.
[50] N.C. testified that the accused was upset when she told him about this other person in Jamaica. She knew he was upset as he messaged and said she was a “whore” and a “dumb bitch” but still wanted to talk to her when she got back to Canada. Her evidence was that there was not much communication with the accused after she disclosed this to him.
The Accused’s Evidence
[51] R.V. testified that he found out that N.C. was going to Jamaica a few days before she left. They communicated while she was away on Snapchat and WhatsApp. He denied sending her any messages on Instagram. Their discussion was casual. They did not discuss what occurred on November 10, 2018, as there was no incident to discuss from that day.
[52] He explained that he was joking when he left her the one voicemail message in December 2018 referring to himself as N.C.’s ex-husband. He testified that he referred to himself as her “ex” as N.C. wanted to be with him, but he did not want to be with her.
[53] He denied leaving her a message apologizing as nothing happened. She never left him a message asking if he was going to take accountability.
[54] R.V. testified that when N.C. told him that she slept with someone in Jamaica, he did not feel anything and was “ok” with it as they were free to see other people. They continued to talk after she told him. He denied being upset or angry with her or calling her any names.
[55] He did not know she came back to Canada in December for a week with her cousin.
[56] R.V. testified that he saw N.C. twice in January 2019, prior to February 18, 2019. She came to his condominium and spent the night on those prior occasions.
iii) Counts 3-6 of the Indictment: The Events of February 18, 2019
N.C.’s Evidence
[57] N.C. testified that when she returned from Jamaica, she wanted to meet R.V. in person to see if he was sorry for what he did in November 2018. She did not think he was going to physically harm her as he had apologized for the November incident.
[58] After arriving at his condominium on the evening of February 18, 2019, they watched a show. They both had two to three drinks of vodka and orange juice; she felt tipsy.
[59] They went into his bedroom and sat on the edge of his bed; he was sitting in front of her. The accused started to question her about what happened in Jamaica. She felt uneasy as he was “kind of aggressive”. He called her a “whore”, “dumb”, and said she was “easy”. He squeezed her arm and punched her twice on the left side of her face with a closed fist. He told her he did not know what he wanted to do with her – “fuck her or stomp her in the face”. He yelled at her and called her a “dirty bitch”. She started to cry and told him to stop. She hugged him and said she was sorry as she wanted him to stop hitting her. He pushed her back on the bed, straddled her, and started to choke her with both hands. She felt light-headed and pressure on her throat. He told her that he should have told his “home boys that she was an easy screw and should have let them have a piece of her”. He took off her pants. She did not want to have sex with him. She did not say no or yes but let him do what he wanted as she wanted to make sure she got home. He penetrated her vaginally. He did not wear a condom. She did not know how long it lasted but it seemed long.
[60] When he was done, she got up and went to the bathroom, locked the door, and sat on the floor. After some time, she opened the door and told the accused she wanted to go home. He went to the bedroom door, blocked it, and told her she could not go home as she had been drinking. She went back into the bathroom and locked the door so he would not come in.
[61] The following morning, she came out of the bathroom and asked the accused why he hurt her again. He said he did not know what she was talking about. She told him that he hit and strangled her. R.V. said it never happened but if it did, he should have killed her like OJ killed his wife. She then left.
[62] She had injuries on her body, and she took photographs when she got home. The photographs, marked as exhibits, show lines on her throat and bruises on her left arm. She agreed that there were no marks on the left side of her face although R.V. punched her twice with a closed fist.
[63] She testified that R.V. later messaged her and acted like nothing happened.
[64] N.C. denied that the accused picked her up at a GO station after February 18th. She denied calling him from a bar and then showing up in the lobby at his building asking to see him but that he refused as he had a female friend with him.
[65] N.C. testified that she would have reported the sexual assaults even if the accused had not repeatedly called her and threatened her as she could not live a normal life if she did not say anything to anyone.
The Accused’s Evidence
[66] R.V. testified N.C. arrived at his condominium between 9 and 10 pm on February 18, 2019. She made herself a drink of vodka and orange juice. They sat on the couch and watched television. He did not drink as he left for service calls and had to drive. He arrived home after his last service call at around 11 pm. He had two drinks when he returned home.
[67] His evidence was that N.C. asked to go to the bedroom. They laid on his bed, watched television and drank. They started to make out; they undressed themselves. He went on top of her, and they had vaginal intercourse for about 10 minutes. She then went on top of him, guided his penis inside her vagina and they continued to have vaginal intercourse. He then went on top of her again and they continued to have vaginal intercourse until he ejaculated. He went to the washroom to clean himself and brought her a towel to do the same. He lay down beside her and they slept.
[68] N.C. woke him up the next day and said she was leaving and to lock the door when she left.
[69] R.V. denied choking or punching N.C., squeezing her arm or throat, calling her names, taking her clothes off or preventing her from leaving his condominium. He denied being aggressive. She did not lock herself in the bathroom.
[70] He saw her a few days later when she asked him to pick her up at the Brampton GO station. He picked her up and they hung out.
[71] He also testified that N.C. messaged him on a Thursday from a bar after February 18. She had been drinking and wanted to see him. He told her he had a friend with him. N.C. told him to tell the friend to leave. She later buzzed him from the front door of his building. He told her to leave, and she did.
Analytical Framework
Reasonable Doubt
[72] At all times, the onus to prove guilt of an accused beyond a reasonable doubt remains with the Crown. Each person charged with a criminal offence is presumed innocent and this presumption remains throughout the whole of the trial, unless and until the court is satisfied that the charge has been proven beyond a reasonable doubt. At the end of hearing the evidence and submissions, if I am not satisfied that the Crown has proven any element of the offence charged beyond a reasonable doubt, the accused will be acquitted of the charge.
W.(D.) Analysis
[73] Given the conflicting evidence of N.C. and the accused, credibility assessments are key to the determination of guilt in this case. Therefore, the three-step analysis set out at p. 758 of R. v. W.(D.), [1991] 1 S.C.R. 742 must be followed to prevent the burden of proof shifting to the accused. The three steps are as follows:
I. If I believe the evidence of the accused, I must acquit him.
II. If I do not believe the accused’s testimony but I am left in a reasonable doubt by it, I must acquit him.
III. Even if I am not left in doubt by the evidence of the accused, I must ask myself whether, based on the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the accused’s guilt.
[74] At all times, it is important to keep in mind that the accused’s credibility should not be assessed solely in relation to the credibility of the complainant. This is not a credibility contest between N.C. and R.V. The burden remains on the Crown to prove R.V.’s guilt beyond a reasonable doubt.
[75] In a case such as this, when dealing with two witnesses whose evidence is completely contradictory, an accused is not to be disbelieved simply because the complainant is believed: R. v. V.Y., 2010 ONCA 544, 258 C.C.C. (3d) 281, at paras. 19 and 26. An accused is not to be found guilty, after accepting the evidence of the complainant, without properly assessing whether the accused’s evidence, or the evidence as a whole, raises a reasonable doubt: R. v. J.H., 2018 ONCA 245, at para. 37.
[76] The mere disbelief of the accused’s evidence will not satisfy the burden of proof upon the Crown: W.(D.), at p. 758. If, after considering all the evidence, the court is unable to decide whom to believe, then the court must acquit. The court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused’s guilt.
Assessing Credibility and Reliability
[77] When making credibility and reliability findings, I must consider several factors to assess the weight to be given to a witness’ evidence. No single factor is determinative; each must be considered where applicable. Some of those factors are a witness’ power of observation, the accuracy of his or her memory, his or her age at the time of events, the passage of time, any bias or partiality or interest in the outcome, any inconsistences with prior statements or with other witnesses or documentary evidence, inconsistencies in evidence given during the trial, and if there is any independent confirming or contradictory evidence. I adopt Justice Trimble’s review of the jurisprudence regarding assessing credibility in R. v. M.H., 2018 ONSC 7366, at paras. 76 to 80.
[78] Assessment of the reliability and credibility of a witness is not a science. As we instruct juries, there is no magic formula in deciding how much or little to believe of a witness’ evidence. We are to be guided by our common sense and experience in human affairs.
[79] While I can consider the way a witness testifies in assessing that witness’ credibility and reliability, I cannot overly rely on demeanour: R. v. D.P., 2017 ONCA 263, at para. 26, leave to appeal refused, [2017] S.C.C.A. No. 261. We now understand that witnesses react and behave differently when testifying at trial. As we instruct juries, there are too many variables to make the way a witness testifies to be the only or most important factor in assessing his or her credibility and reliability.
[80] In R. v. M. (A.), 2014 ONCA 769, 123 O.R. (3d) 536, at paras. 12-13, the Court of Appeal noted that 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 he or she has said on other occasions, whether under oath or not. Inconsistences may arise not just from a witnesses’ evidence at trial, but from what witnesses may have said differently in other instances. Some inconsistences are minor or deal with more peripheral issues. Some are material. Material inconsistencies, about which an honest witness is unlikely to be mistaken, may demonstrate a carelessness with the truth that should concern the trier of fact.
[81] Reliability is separate from credibility. Credibility focuses on a witness’ veracity. Reliability has more to do with accuracy – the witness’ ability to observe, recall and recount events that are in issue. A witness may be credible but give unreliable evidence. A witness whose evidence is not credible on a certain issue cannot be reliable on that same issue: R. v. C. (H.), 2009 ONCA 56, 244 O.A.C. 288, at para. 41.
[82] It is open to a trier of fact to believe all, none, or some of a witness’ evidence: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65. The trier of fact may also accord different weight to different parts of the evidence that has been accepted: R. v. J.H. (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 44; R. v. M.M., 2018 ONSC 1022, at para. 143.
[83] In assessing the accused’s evidence, the court must consider his evidence in the context of all the evidence: R. v. J.H. S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 15.
[84] Where there are significant inconsistencies or contradictions within a principal Crown witness’ testimony, or when considered against conflicting evidence in the case, the trier of fact must carefully assess the evidence before concluding that guilt has been established: R. v. S. (W.) (1994), 18 O.R. (3d) 509 (C.A.), at para. 15, leave to appeal refused, [1994] S.C.C.A. No. 290.
[85] Witnesses are not “presumed to tell the truth”. Rather, the totality of the evidence must be considered when assessing the evidence of each witness. The only presumption that applies is the presumption of innocence: R. v. Thain, 2009 ONCA 223, at para. 32.
Myths and Stereotypes in Sexual Offences
[86] When dealing with sexual offences, it is important to be mindful of myths and stereotypes about how someone should behave following a sexual assault or when they should report an assault. Myths and stereotypes about both have, at times, tainted sexual assault jurisprudence. The court must not draw an adverse inference regarding a complainant’s credibility based on assumptions of how people react to acts of sexual abuse: R. v. D. (D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 63.
[87] There is no inviolable rule with respect to how victims of sexual assault will behave: D.D., at para. 55. Some victims will make an immediate complaint, some will never disclose, and others will delay in disclosing the abuse. The reasons for delaying disclosure may include embarrassment, fear, guilt, or a lack of knowledge. In assessing credibility, the timing of the disclosure is just one factor to consider. A delay in disclosure on its own does not give rise to an adverse inference against the credibility of the complainant.
Analysis and Findings
Do I believe the accused’s evidence or if not, am I left with a reasonable doubt?
[88] I will first consider R.V.’s evidence. Based on the W.(D.) analysis, if I believe his evidence that he did not sexually assault N.C., or if I do not believe him but am left with a reasonable doubt, I must acquit. This requires me to make credibility and reliability assessments regarding his evidence.
[89] Inconsistencies in a witness’ evidence is one means by which credibility and reliability is assessed. Inconsistencies in a witness’ evidence are the rule and not the exception. The issue is typically not whether there are inconsistencies but the extent to which those inconsistencies impact on the reliability and credibility of the witness.
[90] Inconsistencies are not of equal significance as recognized by the Court of Appeal at para. 13 in R v. A.M., 2014 ONCA, 769:
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 with the trier of fact should be concerned: G.(M). at para. 354.
[91] The Crown argues that there were several inconsistencies in R.V.’s evidence. While I agree, in my view, most of those inconsistencies were not on material issues.
[92] The Crown argues that there were inconsistencies in R.V.’s evidence about the sexual activities on both dates. Specifically, his estimation of the times of each activity varied in chief and when cross-examined. In my view, whether his estimate of various acts were 5 minutes in chief and then changed to 10 minutes in cross is the sort of inconsistency I would expect. I think it would be most unusual for parties to have stop watches recording how long they engaged in various sexual activities or positions. While I agree that R.V. had a specific and detailed recall of what occurred, I do not consider that to be a basis for finding his evidence not credible. I note that N.C. also had a specific recall which does not detract from her credibility.
[93] R.V. was unable to spell the name of his uncle’s electrical business, nor did he know if it was still in operation. I do not consider that evidence to have any bearing on his credibility or reliability. I also do not consider that any inconsistencies in his evidence about how many service calls he attended on both dates, where he went or the length of the service calls to have any bearing on his credibility and reliability.
[94] R.V. was cross-examined about his criminal record. In 2011 and 2016, he was convicted of failing to comply with a recognizance which I consider to be crimes of dishonesty. He made a promise to the court to comply with certain release terms that he breached. I consider this a factor in assessing his credibility.
[95] R.V. agreed that he communicated with N.C. by his phone. He agreed he had WhatsApp, Instagram, and SnapChat on his phone. He would also use his phone to place telephone calls to her. He was then asked about his statement to the police when he was asked for his phone number, and he replied he did. The officer then asked him, “You don’t have a phone?’ and R.V. answered, “yeah”.
[96] R.V. explained that he denied having a phone when asked as he did not know who the police officer was, and he was not obligated to give his phone number to anyone who asked. I reject R.V.’s explanation for this untruthful answer. He told the officer he did not have a phone; he did not simply refuse to give him his phone number. He was not being asked by the police officer to produce his phone. He was simply asked if he had a phone. There was no reason for R.V. to be deliberately untruthful when he spoke with the police officer
[97] I have difficulty understanding R.V.’s explanation that he was joking when he left N.C. the odd voicemail message on December 25, 2018, referring to himself as her ex-husband and talked about divorce papers. His explanation that he was joking about N.C. wanting to be with him, but he did not, made no sense. He repeated that evidence when cross-examined and explained that he had a weird sense of humour and in hindsight maybe he should not have made a joke.
[98] R.V. and N.C. had been seeing each other regularly for several months before she left for Jamaica on November 14, 2018. He testified that he would see her every weekend and some weeknights. While he may not have considered that they were in an exclusive relationship and could see other people, they nonetheless saw each other and spent time together regularly and consistently. It makes more sense that he left that message as he had not seen her for about six weeks and given the passage of time, after seeing her regularly before she left for Jamaica, he referred to himself as her ex-husband.
[99] My impression was that R.V. was trying to distance himself from that message to support his evidence that his relationship with N.C. was far more casual than he was prepared to admit. He did not want to agree that he might have been upset when N.C. told him about her sexual interaction with another man in Jamaica as that might explain why he sexually and physically assaulted her in February 2019. Furthermore, he called her several times after February 2019 and these phone calls made N.C. fear for her safety. Those unwanted phone calls causing N.C. to be fearful are not in accordance with someone who considered their relationship to be as casual as he testified. I find that R.V. was untruthful about the nature of his relationship with N.C., and he was untruthful to distance himself from the suggestion that he was angry, jealous, and upset with her for her sexual interaction with another man while in Jamaica.
[100] When I consider the totality of R.V.’s evidence, I find that he is not credible. In making that finding, I have considered his record for dishonesty, his deliberate untruthfulness in his statement to the police and his untruthfulness about his relationship. As a result, I reject his denial that he did not sexually assault and assault N.C. nor am I left with a doubt.
a) Assessing the credibility and reliability of N.C.
[101] Despite rejecting R.V.’s denial, the rigours of W.(D.) requires me to consider whether the Crown has discharged its burden and proven the guilt of R.V. beyond a reasonable doubt, based on the evidence that I do accept.
i) N.C.’s Conduct after November 2018
[102] Defence counsel made several submissions that based on N.C.’s conduct after the alleged sexual assaults, I should find that she is not a credible and reliable witness.
[103] N.C. agreed with the following suggestions put to her when cross-examined:
- She was emotionally upset and felt violated following both incidents and agreed she could have asked the security officer in the lobby of R.V.’s building for help or to call 911 when she left both mornings.
- She had her phone with her and could have called 911 when she left R.V.’s building.
- When the sexual assault kit was administered, she told the nurse that she did not want to call the police.
- The events of November 10, 2018 were very traumatic for her and she nonetheless travelled to Jamaica.
- When she came back to Canada for one week with her niece, she showed her the sites of Toronto even though she had been violently sexually assaulted in November. She agreed that at the preliminary hearing her evidence was that she could have left her niece with her stepfather in Canada and gone to the police.
- She saw R.V. on February 18th at his condominium although he had allegedly sexually and physically assaulted her only months earlier at the same location.
[104] N.C. was candid and not argumentative when she agreed with these suggestions.
[105] The defence argues that based on these admissions, I should find that N.C. is not credible given her failure to report the sexual and physical assaults sooner. The defence also argues that I should find her not credible given her decision to travel to Jamaica so soon after being allegedly sexually assaulted in November 2018. The defence argues that it defies logic and is highly implausible that N.C. would have travelled to Jamaica after being the victim of such a traumatic sexual assault.
[106] The defence also argues that N.C. is not credible as it defies commons sense that she would see R.V. in February 2019 after he allegedly sexually and physically assaulted her in November 2018.
[107] I reject each of these submissions as they play directly into the debunked myth that a victim of sexual assault behaves in a certain way, reports it to the police immediately, and does not return to or continue a relationship with their assailant, particularly when it is someone with whom they have been in a relationship.
[108] I reject the argument that N.C.’s behaviour, response, and delay in reporting the alleged sexual and physical assaults has any bearing on her credibility or reliability. We understand that victims of sexual assault react differently and report at different times, if ever, as trauma affects people in different ways. The timing of the complaint, standing alone, will never give rise to an adverse inference against the credibility of a complainant; D.D., at para. 65.
[109] Some victims of sexual assault, particularly those assaulted by an intimate partner, may retreat into denial, and carry on with their lives as if nothing happened, such as travelling to Jamaica on a trip. Some need time to process what occurred. Some want to believe it was a one-time occurrence and will never happen again. Some believe apologies and expressions of regret by their assailant. Some victims will blame themselves. Some will feel guilt, shame, or embarrassment.
[110] To be clear, N.C.’s decision to travel to Jamaica, return to Canada with her niece for one week and not report the sexual assault, telling the nurse at Chantel’s Place she did not want to make a report to the police, not reporting the assault to the security guard at R.V.’s building, and her decision to see R.V. February 2019 have no bearing on her veracity. These behaviours and conduct were not illogical, did not defy common sense and did not raise serious questions about her credibility and do not support the inference that the sexual assaults did not occur as she described as defence counsel argued.
[111] I also reject the defence submission that there was no evidence that the sexual and physical assault on November 10th must not have occurred as there was no evidence of anything that would have triggered that assault. Sexual assault does not only occur because a perpetrator is acting out of any one particular emotion such as anger or jealousy. There does not need to be a trigger or a reason for a sexual assault to occur. A victim can be assaulted for no reason; it can occur out of the blue as N.C. described.
ii) Motive
[112] R.V. alleges that N.C. had a motive to fabricate and make false allegations against him as she was angry with him and jealous that he had sexual interactions with other women. To be clear, R.V. has no onus to prove that N.C. had a motive to fabricate. Furthermore, even if I find that there was an absence of evidence of motive to fabricate, that does not mean that a witness does not have a motive to fabricate. There can be many reasons why a witness might have such a motive. Furthermore, just because a witness has no apparent reason to lie, does not mean that the witness must be telling the truth: R. v. Ignacio, 2010 ONCA 69, leave to appeal refused, [2021] S.C.C.A. No. 127 at para. 2
[113] I am also mindful that the absence of evidence of motive to fabricate is not the same as proven absence of motive to fabricate; R. v. L. L., 2009 ONCA 413, at para. 44. The former is an element that may be considered in assessing the credibility of a witness, but it is only one element, whereas the latter may be a compelling reason to conclude that the witness is telling the truth: R. v. W.R., 2020 ONCA 813 at para. 18.
[114] In this case, I reject the submission that N.C. had a motive to fabricate. While she believed she was in an exclusive relationship with R.V., they both testified that after he disclosed his sexual activities with two other women while on vacation in October 2018, while she was initially hurt or upset, their relationship continued, unchanged, and N.C. “got over it” as R.V. testified. R.V. did not testify that there was any ongoing animus between himself and N.C. and when they communicated while she was in Jamaica, they discussed things like how what she was doing while away. Even if I accept R.V.’s evidence that he did not let her enter his condominium on one occasion after February 18th, there is again no evidence that N.C. was upset. He testified that she left when he would not buzz her into his building.
[115] That does not mean that N.C. did not have a motive to fabricate as there may be many reasons why a witness would fabricate evidence or allegations. In this case, there is an absence of evidence of motive to fabricate which is a factor I can consider in assessing N.C.’s credibility.
iii) Inconsistencies
[116] There were several inconsistencies with N.C.’s evidence. Some I consider to be on peripheral and inconsequential matters and have no bearing on my assessment of her credibility and reliability. For example, inconsistencies in her evidence about what she told her cousin, O.L., when she called him the morning of November 11th or whether they drove to the hospital together or took separate cars is inconsequential.
[117] Any inconsistency about her evidence that lubricant was not used on November 10th or if she told the nurse at Chantel’s Place that she did not recall if it was used is, in my view, inconsequential.
[118] I do not agree that there was an inconsistency in N.C.’s evidence at trial that she intended to report the sexual and physical assault to the police after November 10th and her evidence at the preliminary hearing that she only decided to report after the February-March threatening phone calls. Her evidence at the preliminary hearing that she only felt compelled to report to the police due to the phone calls was qualified by a further answer at the hearing that the phone calls were part of it - meaning part of her decision to report. When she was cross-examined at trial, she repeated that the unwanted phone calls were part of the reason why she reported the events of both dates to the police. I do not consider this to be an inconsistency as her evidence is that the unwanted phone calls were one of the reasons why she decided to go to the police.
[119] There were other inconsistencies in N.C.’s evidence that I consider to be consequential and raise credibility concerns. Those inconsistencies relate to the various messages she exchanged with R.V. on Instagram and WhatsApp when she was in Jamaica and an additional voicemail message. My concern is not about any inconsistency in her evidence about the content of those messages or when they were sent and/or received but rather N.C.’s evidence about why these messages in which she said R.V. apologized no longer exist.
[120] I will start with a November 11, 2018 direct message on Instagram. When she was cross-examined, N.C. testified that on that day, R.V. sent her a picture of a moon on Instagram and said something nice, although she could not recall what he said. He did not apologize in that message. She testified that she replied and messaged R.V. that he was a rapist and should not talk to her ever again. She did not testify about this message when questioned in chief.
[121] N.C. agreed that at the preliminary hearing she testified about the November 11th message and said she still had that message on her Instagram account and would provide a copy of it. When she was cross-examined during this trial, she testified that she checked Instagram following the preliminary hearing and the message had been removed.
[122] It was not clear to me why or when this message was removed and thus could not be produced. It was not clear who removed it, or if it was possible for a sender of a message on Instagram to delete the entirety of a message, including any response from a recipient, from the recipient’s Instagram account. For example, if R.V. sent and then unsent the moon message to which she responded that he is a rapist, it is unclear to me how or if that response would be deleted from her messages on Instagram? There was an absence of evidence in that regard.
[123] Standing alone, I would accept N.C.’s evidence that somehow this message was no longer stored in her direct message account on Instagram. What troubles me, however, is the other messages that she could not produce for various reasons.
[124] N.C. agreed with the request of defence counsel at the preliminary hearing to keep the messages on WhatsApp that she and the accused exchanged after November 10th in which the said the accused apologized. She agreed to give those messages to the police. When she was cross-examined at trial about why she had not produced copies of those messages, her evidence was that she thought she still had the messages when she testified at the preliminary hearing. When she tried to retrieve them after the hearing, the messages were gone from WhatsApp. Her explanation for that was that her phone did not have enough storage to save them. She did not know she go could to the police and tell them the messages were gone and ask them to try and retrieve the messages from her phone.
[125] She agreed that when she gave her statement to the police on March 7, 2019, she was asked about the messages she exchanged with the accused on social media. She agreed that the messages existed at that time, but the police did not ask her for her phone or to look at her messages. She agreed she did not take any screen shots of any of the messages she exchanged with R.V.
[126] I am concerned that N.C. was not able to provide copies of the messages on WhatsApp and Instagram and her explanations about why they were no longer available to her. Despite being asked questions by the police in March 2019 about the messages, she made no effort to preserve them such as taking a screen shot.
[127] N.C. was aware enough to have a sexual assault kit administered at Chantel’s Place for use in the future when she reported the assaults to the police and to take photographs of her alleged injuries after the February 18th occurrence. She knew that the police were interested in the messages she exchanged with R.V. When I consider the totality of the evidence, in my view, she would have appreciated and understood the importance of saving messages when R.V. apologized to her as possible confirmatory evidence that he was admitting to the offence.
[128] Even if I were to accept N.C.’s explanation for the missing messages, of more concern is her conflicting evidence regarding one or more voicemail messages left by R.V. My concern is not that there was an inconsistency in her evidence but rather that she was being untruthful when she testified.
[129] N.C. was cross-examined about the voicemail message left by R.V. that she gave to the police on the first day of trial and was played in court. She agreed that when she gave her statement to the police in March 2019, she told the officer that when she was in Jamaica in December 2018, R.V. left her a voicemail, sounding intoxicated, saying he was sorry, missed her and wanted to see her. She also agreed that her evidence at the preliminary hearing was that R.V. left her a message in December 2018, saying he was sorry, missed her and wanted to see her. N.C. agreed that R.V. did not say he was sorry and missed her in the voicemail message she gave to the police on the first day of trial. When that inconsistency was pointed out to her, N.C.’s initial evidence was that she mixed up the recordings.
[130] She also testified that the voicemail message played during the trial was the only message she had on her phone. She agreed that she did not testify at the preliminary hearing, or tell the police, that there was more than one voicemail message from the accused. She agreed that she only testified at the preliminary hearing about one voicemail message in which R.V. apologized. She did not tell the police or testify at the preliminary hearing that there was a second voicemail message.
[131] N.C. testified that she was confused but insisted that she did have a voicemail message from R.V. where he apologized. She said she gave all her recordings to the Orangeville Police in March 2019, and they were supposed to send the voicemail recording to the Peel Regional Police, to whom she reported the sexual assaults, but the Peel Police never received it.
[132] The recordings that N.C. gave to the Orangeville Police are the subject matter of an Agreed Statement of Fact filed in evidence. According to the agreed facts, N.C. gave the Orangeville Police recordings of telephone calls between herself and the accused between February and March 2019. There was no evidence that a voicemail message from December 2018 was also given to the Orangeville Police, as N.C. testified.
[133] N.C. agreed that when she was cross-examined at the preliminary hearing, she said she thought she still had the voicemail and if she had it, she would give it to the police. She agreed that she did not testify at the preliminary hearing that she had already given the recording of this message to the Orangeville Police as she testified at this trial. She agreed that she did not give the voicemail message to the police following the preliminary hearing.
[134] N.C. agreed that the voicemail message she produced on the first day of trial was retrieved from her cell phone. She then testified that the voicemail message R.V. left when he apologized was deleted from her phone due to storage limits on her phone, which is the same explanation she gave for the missing WhatsApp messages.
[135] She testified at the preliminary hearing and told the police that the voicemail message where R.V. apologized to her was from December 2018. The voicemail message entered as evidence on this trial is dated December 25, 2018. However, when cross-examined, N.C. contradicted herself and said the voicemail messages were not from the same period and that she must have mixed up the recordings.
[136] It was apparent that N.C.’s shifting and changing evidence was an attempt to explain why she could not produce the alleged voicemail message where R.V. apologized to her. She initially testified that she no longer had the apology message as she gave it to the Orangeville Police. There is no evidence of any such recording being given to the police. Her evidence then shifted to the message being deleted from her phone due to storage issues. That makes no sense, however, as both voicemail messages are from December 2018, and she was able to retrieve the message played in court and marked as evidence. If that message was still on her phone, then the apology message, if it exists, must also be on her phone.
[137] I find that N.C. was not being truthful about there being another voicemail message from the accused apologizing to her.
[138] When N.C. was confronted with the inconsistencies in her evidence, N.C. sought for ways to explain away the inconsistency. She was not just confused about the messages. Rather, she gave two different explanations about why the apology voicemail message no longer exists that I do not accept. This is not just an inconsistency that could raise reliability concerns. Rather, I find that N.C. was not truthful when testifying under oath.
[139] While this untruthful evidence is not on any of the core issues in dispute or any of the elements of the various offences before the court, in my view, N.C. has demonstrated a carelessness with the truth that causes me concern about her overall credibility.
[140] My finding that N.C was not truthful about the existence of an apology voicemail leads me to doubt her evidence about why she could not produce any of the WhatsApp messages where R.V. allegedly apologized to her or the Instagram message from November 11th when she accused R.V. of being a rapist.
[141] To be clear, it is not inconsistencies in her evidence that concern me but rather my finding that N.C. was untruthful to the court about the apology voicemail message in her effort to explain why she could not produce that message.
iv) Confirmatory/Corroborating Evidence
[142] The Crown argues that despite N.C.’s concerning evidence about the missing apology voicemail, I should consider the confirmatory evidence that corroborates her evidence and argues that evidence should restore my faith and confidence in her credibility and reliability.
[143] The Crown used the analogy of confirmatory evidence when dealing with a witness who evidence must be approached with care and caution: R. v. Vetrovec, [1982] 1 S.C.R. 811.
[144] We give juries what we refer to as a Vetrovec warning, when assessing the evidence of witness who may be disreputable or unsavory, such as a witness who has an extensive criminal record for dishonesty. We instruct juries that it is dangerous to accept unconfirmed evidence of such a witness and that it should look to other independent evidence which tends to confirm material parts of their evidence.
[145] I do not accept the Crown’s proposed analogy. A Vetrovec witness is not a witness who has been found to be untruthful to the court but a witness who, for various reasons, there is a concern may not be truthful to the court and for that reason, we look to confirmatory evidence to restore our confidence in the witness’ evidence.
[146] I will nonetheless consider the evidence that the Crown argues is corroborative and urges me to consider. This evidence includes the photographs N.C. testified she took of herself showing physical injuries she says she sustained on February 18, 2019, the observations of O.L regarding her demeanour when they went to the hospital on November 11, 2018, her attendance at the hospital that day where a sexual assault kit was administered, her fear from the unwanted phone calls with the accused, and his voicemail message where he refers to himself as her ex-husband.
[147] Section 274 of the Code is clear that corroboration of a complainant’s evidence is not required. In R. v. A.G., 2023 ONSC 1422, Justice Harris reviewed the law regarding confirmatory evidence and found that while corroboration is not required, such evidence, if it exists, can be invaluable as it can strengthen the complainant’s evidence, which can be particularly helpful in a trial such as this where there are only two witnesses to the alleged sexual assault. Justice Harris noted, however, that a close and rigorous examination of this potential confirmatory evidence is required: at paras 3-4.
[148] Confirmatory evidence must be material and must be independent of the complainant: A.G., at para 61. As Justice Harris noted, it can be evidence that is on a scale ranging from peripheral confirmation to direct confirmation of the core of the allegations. In A.G., there were photographs of bruises on the complainant and a video of the complainant running away from the accused which Justice Harris found bolstered the core of the allegations.
[149] I do not consider N.C.’s attendance at the hospital on November 11th where a sexual assault kit was administered to be confirmatory evidence. I heard no evidence if she requested that the kit be administered but I presume she did. If she told the attending nurse that she was sexually assaulted, that is not corroborating evidence, just as reporting an alleged offence to the police is not corroboration that the offence occurred.
[150] Being fearful of threatening messages is not corroborative of whether R.V. committed the acts as alleged. It is confirmatory of N.C.’s response to those phone calls.
[151] While I have rejected R.V.’s explanation for the voicemail message he left on December 25, 2018, I do not find it is corroborative of N.C.’s evidence that he sexually and physically assaulted her and forcibly confined her but rather confirmatory evidence of the nature of their relationship as described by N.C.
[152] While the photographs of the bruise on N.C.’s arm and marks on her neck could be confirmatory, I have some concerns as there was no evidence of any injury to her face where she said the accused struck her twice with a closed fist. If squeezing her arm caused the bruise in the photograph, I question why there was nothing similar on the left side of her face. I do not agree with the Crown’s submission that the defence would need expert evidence to support the argument that a punch to the face with a closed fist ought to have left a mark. Given the bruise on her arm that N.C. testified was caused by the accused squeezing her arm, a common-sense inference is that a punch to her face would have left some kind of mark.
[153] While the photographs clearly show a bruise on her arm, the photograph of her neck is less clear. While I can see some red lines, it is difficult to discern if that is an injury.
[154] While these photographs offer some corroboration, the strength of that corroboration is limited when I consider the issues about the photograph combined with and my finding regarding N.C.’s credibility.
[155] O.L’s evidence of N.C.’s demeanour when he saw her on November 11th has some degree of corroboration but I am cautious about placing too more much weight on demeanour evidence.
[156] Given my concern’s with N.C.’s credibility, I do not accept the Crown’s submission that the corroborative evidence restores my faith or confidence in N.C.’s evidence given my finding that she was untruthful to the court when she testified.
Conclusion
[157] While N.C. was not shaken when cross-examined about the core of her evidence that goes to the elements of each of the offences, given my findings with respect to her credibility, it would be dangerous to find R.V. guilty of the charges beyond a reasonable doubt based on her evidence.
[158] Given my findings regarding N.C.’s credibility, I am left with a reasonable doubt. The Crown has failed to discharge its onus and R.V. is therefore acquitted of all counts.
L. Shaw J.
Released: July 20, 2023