Court File and Parties

Court File No.: CR-22-00000306-0000 Superior Court of Justice

His Majesty the King v. J.B.

Appearances

Before: The Honourable Justice R. J. Mandhane On: June 5, 2023, at Brampton, Ontario

Counsel: S. Burton, Counsel for the Crown C. McKenna, Counsel for Jeff Barton

Reasons for Ruling

Table of Contents

• Reasons for Ruling Page 1

Exhibits

• Exhibit No.
• Page No.

Transcript Ordered: June 7, 2023 Transcript Completed: June 16, 2023 Ordering Party Notified: June 16, 2023

Legend

[sic] – indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) – indicates preceding word has been spelled phonetically.

Monday, June 5, 2023

Mandhane J. (Orally):

This is my ruling on the jury instruction. We are in the middle of a jury trial on a single charge of sexual interference. The Crown alleges that the accused J.B. touched the complainant, I.B., for a sexual purpose while she was between 11 and 13 years old. The incidents are alleged to have taken place between four and seven years ago.

I.B. took the stand and was subject to cross-examination. Much of the defence cross-examination focused on her memories about the physical experience of the sexual touching, her memories of peripheral details, and her evolving memory of the events after the fact.

There was no other direct evidence about the alleged touching. The Crown did not proffer expert evidence on the issues of how trauma is experienced or how it affects memory.

J.B. did not take the stand.

An Overview

I.B.’s credibility and reliability will be the central issue at trial. As such, the jury will be instructed to avoid common myths and stereotypes about sexual violence complainants, Black people, and people from different social conditions and classes. They will be told to consider various factors when assessing I.B.’s evidence, including her age and level of maturity, specific previous incidents of dishonesty, her alleged motive to fabricate, her complaints to others while the touching was ongoing and afterwards, and her behaviour after the alleged incidents.

The jury will also be instructed to consider the reliability of I.B.’s memory when assessing her evidence.

On the issue of I.B.’s memory, the defence says that, “in speaking about several of the incidents I.B. lacked detail in her own evidence, including, for example, whether she consumed alcohol, and also that I.B. testified about incidents that she did not tell the police about in May 2020.”

The Crown submits that I.B.’s memory of the sexual acts was unshaken and that it is reasonable that the complainant would not have a perfectly clear memory of the peripheral details, such as timelines or why she went down into the basement on a particular occasion.

Turning now to my proposed instruction

On the issue of memory, I propose to instruct the jury as follows:

• I.B. testified about her memory problems. I.B. said that she can “space out” and put herself “somewhere else” when faced with a problematic situation.
• She explained that closer in time to the incident she did not want to remember the incidents, but that, over the years, she “revisited” her memories and thought more about her “traumatic experiences.”
• She told you that her memories of the situation with J.B. “come and go” depending on the day and whatever comes up in a flashback.
• She said that she has flashbacks while awake and that these happen daily and usually involve the same situations.
• She said that she sometimes remembers bits and pieces of situations.
• She said that she can remember positions, but not exactly what happened immediately before or after the incident.
• She said that it is sometimes hard to recall details because she is “constantly pushing it to the back of her mind.”
• She told you that she feels like her “timeline is wrong for a lot of things.” She thought her memory was also bad because of her cannabis consumption.
• However, she denied that her memories of the alleged sexual touching were dreams or affected by her cannabis use. She felt that her memory is getting better each day because of the counselling she is receiving and because her flashbacks are becoming clearer.
• You will have to consider whether I.B.’s memories of the incidents are credible and reliable, including those that were previously “suppressed” or that came to her in “flashbacks.”
• It is human nature to try and make sense out of bits and pieces of memories which may impact the accuracy of a witness’ testimony.
• Although no one gave evidence about it, you may treat as a fact that:
  • people may experience, perceive, and respond to a traumatic event in ways that are different when compared to a non-traumatic event.
  • That people can have difficulty recalling and accurately describing the peripheral details of a traumatic event after the fact, and
  • That the fact that a witness may have the inability to recall a minor or insignificant event does not necessarily detract from the witness’ overall reliability and credibility.
• These are facts that might help you assess I.B.’s evidence. These facts themselves do not make it more likely that the incident occurred.

The Crown supports inclusion of this instruction in my Charge. She says that since the defence attacks I.B.’s memory of the event it is important to provide the jury with a potential alternative explanation for the complainant’s memory problems, that may fall outside the scope of the jury members’ collective experience and may appear to defy common sense. The Crown says the instruction is proper because it flows directly from the Court of Appeal case law and because it is based on common experience familiar to every trial judge and lawyer and to lay people.

The defence says that, to the extent that my instruction goes beyond that which is contemplated in the Court of Appeal’s recent case law, it would require expert evidence and cannot be the subject of judicial notice. The defence says that the Court of Appeal cases do not go as far as suggesting that people in the midst of a traumatic experience might experience, perceive or react to it differently than a non-traumatic event. She says that courts have limited judicial notice to matters that relate specifically to memory of a traumatic event after the fact.

The defence also notes that the Court of Appeal cases relied upon by the Crown involve trial by judge alone such that I must be more cautious about taking judicial notice in a case involving trial by jury. I must not usurp the role of the jury by finding facts that are not supported by the evidence or properly the subject of judicial notice.

Analysis

Turning now to my analysis. In my view there is a real danger in this case that the jury will not have the tools necessary to properly evaluate the impact of the complainant’s memory problems on her credibility and reliability without the proposed instruction.

First, when the Charge is read as a whole, the proposed language is necessary. This is because earlier in my Charge, when discussing how to evaluate a witness’ testimony more generally, I instruct the jury to draw on their knowledge of human behaviour based on their lived experiences. While this is an important general instruction, in my view, it becomes problematic if the jury is not also alerted to specific situations arising from the evidence where their own understanding of human behaviour and their own lived experiences may not be the only criteria by which to assess the evidence.

In my view, traumatic experiences fall into the category of human experience that may not be properly understood with mere reference to commonsense about human behaviour. We know that people in the midst of a traumatic experience will not necessarily experience, perceive or respond to it in the same way as compared to a non-traumatic experience. We know that sexual assault complainants may not fight back and may not report right away. We know that they store and process their memories differently. It is important that the jury be reminded of these facts.

In my view, the language for the bulleted propositions of which I proposed to take judicial notice, flow directly from two recent Court of Appeal cases. In R. v. G.M.C., 2022 ONCA 2, the Court of Appeal considered whether a trial judge could take judicial notice about certain facts about memory when assessing a sexual assault complainant’s testimony. In particular, the trial judge had stated the following, which was reproduced by the Court of Appeal at paragraph 30. These are the words of the trial judge:

I feel it is necessary to address the many inconsistencies [in the complainant’s evidence] raised by the defence. I earlier indicated I hold no expectation that trial testimony, a review of long-term memories related to the incident will be as accurate as an audio-video recording. I don’t know if observations are reduced to short-term memory. It’s human nature to make sense out of what is chaotic. It doesn’t mean that it is an accurate memory. Observations made in stressful situations of trauma are difficult to move into accurate short-term memories. When short-term memories are stored as long-term memories there are questions of accessing those.

With respect to the 9-1-1 incident we know it happened in May of 2013, reported in 2016, trial in 2018. Memories were reduced to a video statement in 2016, into a statement then a video statement in 2016, testified to 2 years later.

As to the core events, I find that her statements are a version of her experience that took place years earlier. They have been shaped to some degree, but not on the main points.

In assessing whether the trial judge committed an error by taking judicial notice of certain facts about memory science, the Court of Appeal said at paragraph 37,

The trial judge identified some of the principles that judges are required to apply in the assessment of the reliability and credibility of evidence. He correctly observed that memory is rarely the subject of expert evidence, but in spite of this, trial judges frequently observe the frailties of memory and routinely caution themselves about the risks associated with memory.

After his general observations with respect to the assessment of evidence, the trial judge simply expressed some propositions, grounded in common experience, that are familiar to every trial judge and lawyer and to lay people.

And then moving to paragraph 39, the court says,

Although dressed up in unnecessarily scientific jargon, the trial judge’s application of these common experiences does not reflect error in his assessment of the evidence.

In R. v. A.A., 2023 ONCA 174 at paragraph 17, the Court of Appeal relied on G.M.C. to find that the trial judge assessment of “gaps” in a sexual assault complainant’s testimony did not result in error because, “... it is well accepted that peripheral details of a traumatic event can be difficult to recall and accurately described at a later date.”

Much of my proposed instruction flows directly from the language adopted by the Court of Appeal in these two cases. The only part that could be seen as going further is my direction to the jury that they accept as a fact that people may experience, perceive and respond to a traumatic event in ways that are different when compared to a non-traumatic event. In my view, this additional instruction is important because it alerts the jury to the possibility that I.B.’s memory problems go all the way back to her experience and perception of the event itself. It offers a potential explanation for why the complainant might not have detailed memories of how it felt when she was penetrated and why she described the event as feeling, “not real.”

Overall, I am confident that this additional proposition is properly subject of judicial notice based on the test articulated in R. v. Spence, 2005 SCC 71, [2005] 3 SCR 458. We know that people perceive events differently when they are in a state of extreme panic or fear. Common reactions that we see in sexual cases before us every day include hyper-focus, numbness, and disassociation. We know that people can respond to traumatic events in different ways including fight, flight, freeze or fawn. None of this requires expert evidence. I am supported in this view by the Court of Appeal’s decisions in R. v. Vigon-Campuzano, 2022 ONCA 234 at paragraph 32, as well as R. v. E.B., 2021 ONCA 875 at paragraph 52, and also R. v. W.S., 2020 ONSC 2273 at paragraph 47.

Finally, I am confident that the proposed instruction will not prejudice the accused. The jury will be specifically directed to consider the complainant’s memory problems when assessing her credibility. They will have available to them the commonsense inference that a fragmented memory is less reliable than a complete one. In this context alerting them to consider the potential for trauma to influence the experience of an event, and the memory surrounding it, does not tip the scales one way or the other, it is simply another factor for the jury to consider when evaluating I.B.’s evidence.

...WHEREUPON THESE PROCEEDINGS CONTINUED

Certificate of Transcript

FORM 3

(Subsection 5(2)) Evidence Act

I, Marion Jones certify that this document is a true and accurate transcription of the recording of R. v. J.B. in the Superior Court of Justice, held at 7755 Hurontario Street, Brampton, Ontario, taken from Recording No. 3199_215_20230605_092235_30_MANDHARE.dcr which has been certified in Form 1.

June 15, 2023 (Date) (Signature of Authorized person)

A.C.T. No. 6735046159 Province of Signing: Ontario, Canada

A certificate in Form 2 is admissible in evidence and is proof in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.