COURT FILE NO.: CR-21-50000213-0000
DATE: 20231215
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
ELROY LINCOLN
Defendant
C. Charney, for the Crown
C. Gill, for Elroy Lincoln
HEARD at Toronto: November 27, 28, 29 and 30, 2023
NOTICE OF RESTRICTION ON PUBLICATION
Pursuant to s. 486.4(1) of the Criminal Code, information that may identify the complainant or a witness may not be published, broadcasted, or transmitted in any manner.
Penman j.
[1] Mr. Elroy Lincoln is charged with four counts of sexual assault on various dates in February and March of 2014. The Complainant, A.H-A, reported the sexual assault allegations to the police in the summer of 2020 and Mr. Lincoln was charged shortly thereafter.
[2] Mr. Lincoln testified and denied the allegations. Denise Lincoln, the accused’s ex-wife also testified for the defence.
[3] The issue in this case is whether the Crown has proven beyond a reasonable doubt that Mr. Lincoln sexually assaulted A.H-A on four separate occasions during February and March of 2014.
Overview of the Evidence
[4] A.H-A testified that she came to Canada in 2011 and began living with her aunt. In 2014 when she was seventeen years old, she was having difficulties in her aunt’s home and needed somewhere else to live. In February 2014, A.H-A went to stay with her friend Shawnde who lived with her mother Denise Lincoln, her brother, and stepfather, Elroy Lincoln.
[5] One day Shawnde, her mother and brother went to church. A.H-A did not go with them because she was not comfortable attending their church. Mr. Lincoln drove the family and then came back to the apartment. A.H-A and Mr. Lincoln were alone in the apartment. A.H-A testified that he told her to have a shower because he wanted to have sex with her. When she came out of the shower, he took her into his bedroom and had sexual intercourse with her. Mr. Lincoln told her “it was his pussy and I should not give it to anybody”. This was a phrase he repeated to her numerous times.
[6] At some point after this, Mr. Lincoln, Shawnde and the complainant were in the living room while Shawnde’s mother and brother were in the bedroom. Mr. Lincoln had a bottle of rum and Shawnde and A.H-A each had a drink. Shawnde left and went to her room and A.H-A stayed in the living room. Mr. Lincoln put his hand on A.H-A’s thigh and moved his hand between her legs and put his fingers in her vagina. She could not remember what she was wearing. He then told her to leave before his wife came out of the bedroom.
[7] A.H-A testified that on another occasion, Mr. Lincoln drove A.H-A to look at an apartment. It was just the two of them looking at the apartment. In the car afterwards, while sitting in the front passenger seat, Mr. Lincoln pulled the complainant’s pants down, climbed on top of her and had sexual intercourse with her. He again told her, “it’s his pussy and I should not give it away”.
[8] Mr. Lincoln helped A.H-A. find a room in an apartment through a friend of his named Fitz. Mr. Lincoln attended the apartment the day after A.H-A moved in. He came into her room, pulled her pants down and had sexual intercourse with her. Mr. Lincoln told A.H-A not to tell Fitz where he lived and to say that he lived in Whitby. He also told her not to tell Fitz or Shawnde what was going on between them, and that he would be coming by more often. A.H-A described being scared that it was still happening even though she was now living on her own.
[9] A.H-A testified that sometime later she received a call from her mother who had heard from Mr. Lincoln that she was pregnant. A.H-A was not pregnant, but her mother cut her off financially and she had to move to a shelter. The next time A.H-A saw Mr. Lincoln was in 2016 at a Cineplex theatre where she was working. He was with a younger woman, and she tried to avoid talking to him.
[10] A.H-A got married in 2020 and posted a wedding photo on Facebook. Someone with the name Shaquille Anderson commented on the photo saying, “oh my how old is this man he could be your father”. A.H-A tried to find out who this person was and tried calling them through Facebook. Shortly afterwards she received a private message from Shaquille Anderson which said “It’s Shawnde dad. How have you been. I miss you”. The private messages continued, “how could you forget all the good times”, “I make you want an older man”, “I’m your first older man”, and “remember how I sneak you in my room”. The messages also included comments that she better keep her mouth shut, not tell her mom and “I don’t want to have to let your old man husband know”. These messages scared A.H-A and she called the police.
[11] A.H-A testified that she did not consent to having any sexual activity with Mr. Lincoln. A.H-A. never told anyone what happened to her and did not report it to the police until the summer of 2020 after getting the Facebook messages.
[12] Mr. Lincoln testified and denied any sexual activity with A.H-A. He also denied sending the Facebook messages. He testified that it was a condition of A.H-A coming to live with them that she was always to attend church with the family. He testified that there were some occasions that he would not attend church but would go and pick them up. He denied ever being alone with the complainant. Mr. Lincoln explained that they never had rum in their house, only “wine, Guinness and beer”, and that this was for reasons relating to Mr. Lincoln’s health. Mr. Lincoln testified that he did go with A.H-A to look for places to live but it was always in the company of his daughter and on one occasion his wife. He denied telling A.H-A’s mother that she might have been pregnant. He agreed that he saw the complainant at the Cineplex theatre in 2016, but was with a group of friends, and that he said hello to her and asked if she was behaving.
[13] Denise Lincoln testified that there were no occasions when A.H-A would have been alone with Mr. Lincoln, and that A.H-A never went with Mr. Lincoln to visit apartments without herself or her daughter being present. She explained that they only had “wine, Guinness and beer” in the house and said it was for reasons related to her husband’s health. She has never known her ex-husband to use Facebook. Ms. Lincoln testified that she knew nothing about the charges of sexual assault against her husband until she was told during cross-examination.
[14] The Crown argued that I should accept the clear and convincing evidence of A.H-A in combination with the confirmatory evidence of the Facebook messages. The Crown argues that I reject Mr. Lincoln’s evidence as not worthy of belief, notwithstanding the corroboration provided by Denise Lincoln. He argues that Denise Lincoln was a biased witness, there were indications of collusion, and that her evidence conforms to his in such way as cannot be believed.
[15] Counsel for Mr. Lincoln argues that I should accept Mr. Lincoln’s forthright, logical, and consistent evidence and applying the principles in R. v. W.D. 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 find him not guilty. Counsel for Mr. Lincoln argues that Denise Lincoln corroborates Mr. Lincoln’s account and should be believed. Mr. Lincoln argues that the complainant is not worthy of belief and that her evidence is not reliable. He points out the implausibility of two of the accounts of sexual assault. Counsel for Mr. Lincoln also takes the position that the complainant has a motive to lie as she believes that Mr. Lincoln told her mother she was pregnant resulting in her being cut off financially, and for insulting her husband on the Facebook post.
Legal Principles
[16] The accused is charged with four counts of sexual assault contrary to s. 271(a) of the Criminal Code. In order to establish these offences, the Crown must prove all of the following essential elements of the crime beyond a reasonable doubt: i) that the accused intentionally touched the complainant in circumstances of a sexual nature that compromised her sexual integrity; ii) that the complainant did not consent to this touching; and iii) that the accused knew that the complainant was not consenting to the sexual touching, or that he was reckless or willfully blind to whether or not the complainant was consenting: see R. v. Ewanchuk 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330 at para 23-25.
[17] The law is clear that the actus reus of the offence of sexual assault involves a purely subjective view of consent:
….for the purposes of determining the absence of consent as an element of the actus reus, the actual state of mind of the complainant is determinative. At this point, the trier of fact is only concerned with the complainant’s perspective. The approach is purely subjective. Ewanchuk at para 27.
[18] Consent is defined in s. 273.1(1) the Criminal Code as “the voluntary agreement of the complainant to engage in the sexual activity in question.” Consent is not an all or nothing concept. A complainant can consent to some types of sexual activity but not others. Consent can also be revoked at any time. Consent requires a freely given “conscious agreement of the complainant to engage in every sexual act in a particular encounter: R. v. J.A. 2011 SCC 28, [2011] 2 S.C.R. 440 at para 31; R. v. Goldfinch 2019 SCC 38, [2019] 3 S.C.R. 3 at para 44; R. v. Barton 2019 SCC 33, [2019] 2 S.C.R. 579 at para 88; Ewanchuk at para 36.
[19] Given that Elroy Lincoln testified, in assessing whether the Crown has proven his guilt beyond a reasonable doubt, I must apply the principles set out by the Supreme Court in R. v. W.(D)., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 at paras 27-29: First, if I believe Mr. Lincoln's testimony, I must acquit. Second, even if I do not believe his testimony, I must acquit if I am left with a reasonable doubt as to his guilt. Third, even if I reject his testimony, I can only convict if, based on the evidence that I do accept, I am satisfied beyond a reasonable doubt of his guilt.
[20] The court’s evaluation of the accused’s testimony must, of course, take the evidence as a whole into account. In conducting the W.(D). analysis I have carefully considered that the evidence of Denise Lincoln in certain respects contradicts the complainant’s evidence and supports the evidence of Mr. Lincoln: see R. v. S.R. 2022 ONCA 192 at para 28.
Mr. Lincoln’s Evidence
[21] I begin with my analysis of Mr. Lincoln’s evidence. Mr. Lincoln testified and denied all the allegations, including sending the Facebook messages.
[22] I have carefully considered Mr. Lincoln’s evidence on its own and in conjunction with Denise Lincoln’s evidence. For the following reasons, I do not accept Mr. Lincoln’s evidence. First, I find that he did send the Facebook messages. Second, some of his evidence was internally inconsistent. Finally, aspects of his testimony were inherently implausible and not credible.
i) The Facebook Messages
[23] Mr. Lincoln testified that during the time A.H-A was living with the family he had no issues with her or her behavior. She was respectful and followed all the rules. Once A.H-A moved out he testified that other than seeing her in 2016 at the movie theatre, he had not seen or spoken with her at all. Other than she was a friend of his daughter’s who lived with them briefly in 2014, she was not a significant part of his life. He agreed that from 2014 until 2020 he had not spoken with anyone about her.
[24] There was no dispute that in the summer of 2020 A.H-A received Facebook messages from someone named Shaquille Anderson. These messages were filed as an exhibit at trial. The person writing those messages purported to be Shawnde’s dad and implicitly reference an intimate relationship with A.H-A.
[25] I do not accept, and it was not suggested to A.H-A that she sent the messages herself, or that she directed someone to do so. On A.H-A’s evidence these messages were the catalyst that led to her calling the police. The other possibility is that some random person connected to Mr. Lincoln sent these messages. That is just not a reasonable alternative on the evidence. Mr. Lincoln himself testified that he had not spoken to anyone about A.H-A and if there was mention of her, it would have been around the time of February and March 2014, and along the lines of ‘a friend of his daughters was staying with them’.
[26] The Facebook messages imply an intimate relationship. According to A.H-A the only people who knew what had happened were herself and Mr. Lincoln. A.H-A never told anyone what happened to her until she told the police after receiving the Facebook messages. Mr. Lincoln at the time was married and it is unlikely that he would have been telling anyone that he was having sexual activity of any kind with his stepdaughter’s friend. The person identifies themselves as “Shawnde’s Dad”. In the summer of 2020 Mr. Lincoln still considered himself to be Shawnde’s Dad. The messages imply sexual activity that was being kept secret and suggest intimate contact that took place in his home. There is reference to “Shawnde’s Dad” being an older man in relation to A.H-A. There was no evidence as to the age difference between Mr. Lincoln and A.H-A but given she was the same age as his daughter the characterization of “older man” is consistent.
[27] The only reasonable inference on the evidence is that Mr. Lincoln is the person who sent the Facebook messages. I do not accept his evidence that he did not start using Facebook until sometime in 2021. I find that the Facebook messages are tantamount to a confession of sexual activity, and I therefore do not believe his denials that he engaged in sexual activity with A.H-A.
[28] There are other aspects of Mr. Lincoln’s evidence which I do not accept.
ii) Being Alone with A.H-A
[29] Mr. Lincoln testified that he was never alone with A.H-A. He explained that he worked long hours and was not usually home before 6:00pm-7:00pm. He acknowledged that he would be home in the evenings, and they would eat as a family. Denise Lincoln testified that he would not get home until after the children were in bed.
[30] Mr. Lincoln was asked about going to church. Initially he testified that the family went to a Methodist church, and they would go every Sunday. He testified that he would attend “every so often” because his only day off was Sundays. He explained that A.H-A went to church with the family every Sunday that she stayed with them.
[31] In cross-examination he said it was a Pentecostal church they attended, and that he had just made a mistake in his earlier evidence. He then said if there were occasions where the family went to a church event on a day other than Sunday, he would pick them up. He testified that if he drove them and was too tired to attend the service or event, he would go across the street to his friend Marlin’s place. Mr. Lincoln then agreed that there were occasions where he would go home to rest if he was not attending the service or going to Marlins, but that this did not happen during the time A.H-A was living with them. In cross-examination he recalled that he attended church service six times out of the two months. Mr. Lincoln’s evidence is inconsistent about how often he attended church, and I do not accept that he would remember how many times he attended church during the months of February and March 2014.
[32] Mr. Lincoln testified in chief that he agreed that A.H-A could stay with the family on the condition that she follow the house rules. In cross-examination he testified that one of those rules was that A.H-A had to attend church with the family. If she did not agree to the condition, he would not have allowed her to stay with them. Denise Lincoln testified that Mr. Lincoln told her it was her decision as to whether A.H-A could stay with them as “she was the boss”. It was Ms. Lincoln who decided the rules although Mr. Lincoln was present for the conversation with A.H-A.
[33] I also do not accept that church attendance was a condition of A.H-A’s staying with the family. This detail only came out when Mr. Lincoln was being pressed in cross-examination about the possibility that he would have been in the apartment on his own while the family was at church. This was a significant omission on an important issue.
[34] Mr. Lincoln explained that there were three occasions when he took A.H-A to see potential places to live. He said that on one occasion his wife and daughter went with them. On the other two occasions his daughter was with them. He never went alone with A.H-A.
[35] Denise Lincoln explained that she rarely worked and if she did it was on weekdays only between 12:00pm and 3:00pm or 4:00pm. When asked why she was not present for the other apartment visits, she explained that she was at work. Given her work hours these visits must have taken place during the week either during or shortly after school. Notwithstanding the evidence from the Lincoln’s that he worked long hours and was never home during the day, on these occasions he was obviously home and able to take A.H-A to the apartment visits.
iii) Fitz
[36] Mr. Lincoln testified that he helped A.H-A find a room in an apartment that was being rented by his friend Fitz. A.H-A testified that Mr. Lincoln told her not to tell Fitz that he was living on Kipling and to instead tell him that they were living in Whitby.
[37] Mr. Lincoln was asked about this and explained that Fitz knew where they were living because he had come by the building to pick up parcels from other residents of the building. In cross-examination it became clear that this incident took place in 2015 or 2016, well after A.H-A was living in Fitz’s apartment. It is unclear the import of this evidence, but on Mr. Lincoln’s evidence Fitz did not find out he was living on Kipling until 2015, which may be some support for the account by A.H-A.
Evidence of Denise Lincoln
[38] Denise Lincoln provided an account that in many respects mirrored Mr. Lincoln’s evidence, and if believed would corroborate much of his evidence. I have carefully considered her evidence but find that it is unworthy of belief. While Ms. Lincoln came across as very self-assured, it was evident that she was providing an account that would conform with Mr. Lincoln’s evidence.
[39] Ms. Lincoln testified that the first time she was asked to testify on behalf of Mr. Lincoln was the weekend before trial. She explained that all she was told was that it had to do with A.H-A and her time living with the family. According to Ms. Lincoln she had no idea what charges Mr. Lincoln was facing until she was told during the cross-examination. I do not believe this evidence. Mr. Lincoln was arrested and charged in the fall of 2020 when Denise Lincoln was still married to and living with Mr. Lincoln. They did not separate until May of 2021. Either Mr. Lincoln was keeping this information secret from his wife, or she is lying. I do not believe Ms. Lincoln’s evidence that she had no idea her husband had been arrested and charged with sexual assault.
[40] In the summer of 2020, Denise Lincoln was contacted by Shawnde who told her that A.H-A had contacted her about Facebook messages she was receiving from Mr. Lincoln. Shawnde told her mother that Mr. Lincoln was asking to meet A.H-A. Shawnde offered to send her mother the screenshots of the messages, but Denise Lincoln said no, explaining that her husband did not use Facebook so did not need to see them. Denise Lincoln checked his phone and did not see any messages. I do not believe this evidence. In the summer of 2020, Denise and Elroy Lincoln were still married. It does not make sense that Ms. Lincoln would not want to see the messages that she believed were of someone pretending to be her husband asking to see A.H-A.
[41] When Denise Lincoln spoke to Mr. Lincoln about the messages to A.H-A he told her that he had not had any contact with A.H-A since she moved out of their apartment. This contradicts Mr. Lincoln’s evidence that he went to Fitz’s place and saw her the day after she moved out, and that he had seen and spoken with her at the Cineplex in 2016.
[42] Ms. Lincoln testified that her husband is not ‘tech savvy’ and would have a hard time using Facebook. Her evidence was that she has never known him to use Facebook. Mr. Lincoln did start using Facebook in 2021 but there is no evidence if that was before or after their separation in May of 2021.
[43] When asked to recall the conversation about the family rules that A.H-A had to abide by, she recalled three specifically. First, that A.H-A had to attend church with the family. Second, the children could not have their phones past 9:00pm, and third, A.H-A had to go to and from school with Shawnde.
[44] With respect to the church rule, Ms. Lincoln testified that at no time did she go to church without the children, including A.H-A. She only went to church on Sundays and never went to a church event on any other day. She was adamant that A.H-A never asked to stay home, nor was it even a possibility that A.H-A ever stayed home while they were at church. When asked about her husband attending church with them, she explained that if he was not joining them, he would drop them off and go and visit his friend Marlin. On cross-examination she agreed that would have been up to him whether to visit Marlin or go home to rest. This evidence is suspiciously like Mr. Lincoln’s in the recollection of detail so many years after the fact.
[45] Ms. Lincoln testified that during the first half of 2014 when A.H-A was living with them, the children were never at home without her. If Ms. Lincoln were to run any kind of errand, the children went with her. Ms. Lincoln would not agree that it was even a possibility that her children would have been home at some point during those two months without her being present. It is not believable that Shawnde and A.H-A who were seventeen years old at the time, would not have been allowed to remain home without Ms. Lincoln present. This is just not credible evidence.
[46] In the same vein, Ms. Lincoln testified that at no point did the children go to bed after 9:00pm. If the children had homework that took them past 9:00pm, she would stay up with them in the kitchen until it was finished. Ms. Lincoln went further than this and testified that at no point while A.H-A was staying with them did she go to bed before the children. Again, I do not accept this evidence.
[47] Ms. Lincoln was asked about alcohol in the home. She responded very similarly to Mr. Lincoln with the phrase “wine, beer and Guinness”. This use of almost the exact same phrase to describe the alcohol in the home was striking.
[48] Ms. Lincoln spoke to Mr. Lincoln the night before her testimony about their son. She agreed that she was testifying to support her ex-husband who she still cared about and is the father of her son. Although she did not know anything about the charges until this weekend, Ms. Lincoln acknowledged putting “two and two” together that whatever the charges were, it was possible that they involved A.H-A and Mr. Lincoln being alone together.
[49] Considering Ms. Lincoln’s evidence as a whole and in combination with Mr. Lincoln’s evidence, I cannot help but conclude that at minimum there are indications of collusion. It is not reasonable that both Denise Lincoln and Mr. Lincoln would have the same memory of events that took place almost ten years ago, including details about church attendance and that there was no possibility that Mr. Lincoln was ever alone with A.H-A. While it may be there were no spirits in the home, their use of the exact same phrase is highly suspicious. Opportunity to collude is not evidence of collusion. But when looking at the suspiciously similar content of Ms. Lincoln’s evidence to Mr. Lincoln’s, it is hard not to draw any other conclusion.
[50] It is the cumulative effect of the issues identified in the accused’s testimony that impact negatively on his credibility. I do not accept Mr. Lincoln’s evidence, nor does it raise a reasonable doubt. I reject his denials that he engaged in sexual activity with A.H-A, and his denial that he sent the Facebook messages. I also do not accept Mr. Lincoln’s evidence in combination with Denise Lincoln’s evidence. I do not believe her evidence and reject it.
[51] However, on the third arm of the test, I must still look to the rest of the evidence to determine if on a review of the whole of the evidence, I am satisfied that the elements of the offences have been proven beyond a reasonable doubt. I am.
Evidence of A.H-A.
[52] Counsel for Mr. Lincoln argues that I should reject the complainant’s evidence as incredible and unreliable. Specifically, they argue that she was inconsistent in her evidence about what she was wearing during the incident in the apartment where Mr. Lincoln had sexual intercourse with her. They also argue that her evidence is not reliable because she testified that the car in which she was sexually assaulted was a four-door car but had told the police it was a two-door car. Mr. Lincoln also argues that her accounts of the sexual assault are physically implausible unless she was a willing participant. Counsel argues that she has a motive to lie as she is angry about Mr. Lincoln telling her mother she was pregnant, and for insulting her husband on Facebook.
[53] Counsel for Mr. Lincoln argued that the complainant’s evidence was so implausible that in the circumstances of this case, it requires corroboration. I reject that submission in its entirety. The complainant’s evidence was not so incredible as to be hard to believe. In fact, I find that the narrative she gave was credible and persuasive. More importantly, s. 274 of the Criminal Code makes clear that corroboration is not required for a conviction.
[54] Although consent was not ultimately argued by Mr. Lincoln, A.H-A was cross-examined on a version of events that suggested she was a willing participant in the sexual activity with Mr. Lincoln. The suggestion that the allegations were entirely false, save for one question, was not explored in cross-examination with the complainant. It was also not suggested to A.H-A that she created the Facebook messages herself. I appreciate that the general tenor of the cross-examination was that A.H-A was not telling the truth about the allegations. However, the argument that I find the allegations being entirely false is somewhat weakened by the lack of fulsome cross-examination on this point.
[55] A.H-A testified that on the second occasion when she was sitting on the couch, Mr. Lincoln put his hands between her legs and forced his fingers into her vagina. It was suggested to her that this was not possible unless she had opened her legs. In the same vein when A.H-A testified that Mr. Lincoln had sexual intercourse with her in the front seat of the car, it was suggested that this would have been physically impossible but for her willing participation. A.H-A testified that he had put the seat back, pulled her pants down but not off, climbed on top of her and had sexual intercourse with her. It was put to A.H-A that she would have had to willingly spread her legs for it to have been possible for Mr. Lincoln to insert his penis in her vagina. A.H-A maintained that she did not participate willingly and that she believed she had no choice.
[56] I find that these suggestions rely on impermissible reasoning. Ultimately counsel for Mr. Lincoln did not argue the issue of consent, but given the questions were asked it must be clear that the implication that unless A.H-A resisted what Mr. Lincoln was doing to her, she was an active participant and thus must have consented, relies on the stereotype that women cannot be sexually assaulted against their will. The Supreme Court has been clear that this type of reasoning has no place in our criminal justice system: see R. v. Find 2001 SCC 32 at para 101 and Ewanchuk at para 94-97.
[57] Counsel for Mr. Lincoln suggested that A.H-A’s evidence about not attending church was incredible and non-sensical. A.H-A testified that she did not attend church with the family because of a concern on her part about “spirits crossing” if she were to attend a different place of worship. It was further argued that A.H-A not even attending once to investigate the church was non-sensical. I accept A.H-A’s explanation about why she did not want to attend their church. The rationale and language she used may have been unusual, but I do not find that it was contrived or unbelievable.
[58] The complainant testified with respect to the first incident when she was alone in the apartment with Mr. Lincoln, he told her to go have a shower because he wanted to have sex. When questioned about what she was wearing when the sexual assault happened, she testified she was only wearing a towel. In cross-examination it was put to A.H-A that when she was interviewed by police, she was unable to remember what she was wearing. I do not find that this was an inconsistency of any significance. The context of this question by the police was more general than what she was wearing during the incident. The question asked was “do you remember what you were wearing that day”.
[59] The complainant explained that there were multiple times Mr. Lincoln had sex with her and she was just trying to tell the police what happened. She believed that when she was speaking to the Detective, she was referring to the time when the family were all at church. I accept that A.H-A was having difficulty recalling this detail several years after the fact. I have carefully considered the evidence on this point, and I do not find this has an impact on the reliability of her account.
[60] A.H-A was also cross-examined with respect to her evidence that the car she was in during the third incident was a four-door sedan. Her police statement was put to her where she had said that it was a two-door. A.H-A acknowledged that she was wrong and explained that she now remembers it was a two door because when she was sitting in the back, Shawnde would have to get out first to pull the seat forward to let her out. I do not find this mistake in her recollection detracts from either the credibility or reliability of her evidence.
[61] When A.H-A posted her wedding photo to Facebook in the summer of 2020, someone commented about her age in relation to her husband. A.H-A initially assumed it was a woman and responded, “do you have a man? Are you married?”. She attempted to find out who sent the message by making a Facebook audio call but was not able to reach anyone. These attempts are also captured in the screenshots.
[62] A.H-A received private Facebook message from the same person saying “It’s Shawnde Dad”. There is a message exchange that implies an intimate relationship to which A.H-A responds, “we never had a great time”, and “I don’t know what you’re talking about”. The messages end on a threatening note with the person writing, “you better keep your mouth shut and make sure you didn’t tell your mom”, to which A.H-A replies “can you leave me alone”. The response was “watch your mouth. I don’t want to have to let your old man husband know”, to which A.H-A responded, “leave me the fuck alone”.
[63] Counsel argued that it is significant that nowhere in the messages does A.H-A refer to being sexually assaulted. A.H-A testified that the messages “brought it all back”. She described that she had “buried deep” what Mr. Lincoln had done to her. I accept A.H-A’s evidence that these messages caught her off guard and that she initially believed they were sent by a woman. A.H-A’s description of having “buried deep” the memories of what happened with Mr. Lincoln and being scared about him contacting her, was genuine and believable. I find that the Facebook messages are confirmatory evidence of A.H-A’s account.
[64] It was suggested to A.H-A that she was angry Mr. Lincoln had told her mother that she might be pregnant, leading to her mother cutting her off, and that she made up the allegations as a result. The first difficulty with this suggestion is the remoteness of it, given this occurred in 2014 six years before she goes to the police. A.H-A does initially say she was angry and then denies that in cross-examination. On a careful reading of her evidence however, by the time she receives the Facebook messages she is no longer angry. What made her angry at that point is thinking back to what Mr. Lincoln had done to her, including telling her mom he would take care of her but ultimately taking advantage of her. It was also suggested that A.H-A fabricated her evidence because of the insult to her husband on the Facebook post. The Facebook post scared A.H-A and was what led to her going to the police. I am not satisfied that these constitute a motive to fabricate.
[65] I draw no adverse inference against the credibility of the complainant for not disclosing the allegations until 2020. Delayed disclosure is one factor to be considered in the context of the evidence, and on its own can never be the basis for an adverse finding against the credibility of the complainant: see R. v. D.D. 2000 SCC 43 at para 63 and 65.
[66] A.H-A was a vulnerable seventeen-year-old with nowhere to live, no income and no real family support. While her mother was visiting Canada around the time of February or March of 2014, she was not able to have her daughter come and stay with her. A.H-A had been abused while living with her aunt and at the time had no status in Canada. I accept that A.H-A felt she had no choice and could not actively resist Mr. Lincoln’s advances. A.H-A testified that she cried during the assaults, and that they made her feel “nasty” and “hopeless”. I am satisfied that A.H-A did not consent to any of the sexual activity with Mr. Lincoln.
[67] I accept the complainant’s evidence and find that she was credible and reliable. Although she initially had difficulty discussing the incidents, I find this was because of the personal, upsetting nature of what she was describing. I remind myself that reliance on demeanor evidence must be approached with caution.
[68] While I find the complainant’s evidence to be credible and reliable, there is the additional evidence of the Facebook messages. In this case the Facebook messages are confirmatory evidence of the complainant’s account and contradict the accused’s denials; R. v. L.G. 2023 ONCA 804 at para 37.
Conclusion
[69] Based on the evidence of the complainant in combination with the Facebook messages, I am satisfied beyond a reasonable doubt of the guilt of Mr. Lincoln of the four counts of sexual assault.
___________________________ J.K. Penman J.
Released: December 15th, 2023
COURT FILE NO.: CR-21-50000213-0000
DATE: 20231215
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
ELROY LINCOLN
Defendant
C. Charney, for the Crown
REASONS FOR JUDGMENT
J.K. Penman J.
Released: December 15, 2023