COURT FILE NO.: CR-21-50000376-0000 DATE: 20240327 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – JORDAN MAXWELL Defendant
COUNSEL: M. Iny and S. Dosanjh, for the Crown J. Christie and A. Mahil, for the Defendant
HEARD: January 22-26, 2024
DINEEN J.
[1] Mr. Maxwell is charged with sexual assault and threatening death. The complainant testified that when she was a teenager, she babysat for Mr. Maxwell’s children and his sister’s son. When doing so she would sleep over at the residence Mr. Maxwell and his sister shared with their mother. She testified that on one occasion, Mr. Maxwell returned home very drunk. He approached the couch where she was sleeping, put his hand down her pants, and threatened to kill her when she protested.
[2] Mr. Maxwell testified and denied that this took place. There is no issue that the conduct described by the complainant would make out the two offences charged. The only issue on this trial is whether the Crown has proven beyond a reasonable doubt that the event described by the complainant took place.
Summary of the evidence at trial
The evidence of the complainant
The complainant’s relationship with Mr. Maxwell’s family
[3] The complainant is 25 years old. She testified that the event giving rise to the charges took place approximately 10 years before trial. At this time, her family and Mr. Maxwell’s family were on friendly terms. The families had gotten to know each other because the complainant’s cousin lived in an adjoining house to Mr. Maxwell’s sister Brittany.
[4] The complainant testified that she took a babysitting course in elementary school and had begun babysitting for a woman named Bonnie, primarily after school while Bonnie was at work. After getting to know Brittany, the complainant also began to babysit Brittany’s son Carlos. The complainant testified that she formed a close bond with Carlos.
[5] The complainant testified that this babysitting continued after Brittany moved into a residence on Bergamot Avenue with her mother, Mr. Maxwell, and Mr. Maxwell’s partner Morgan. Mr. Maxwell and Morgan had three young children. The complainant testified that at this point, she began babysitting Brittany’s son and Mr. Maxwell’s children together on weekend nights when Brittany and Mr. Maxwell both went out. For health reasons, Mr. Maxwell’s mother was not able to manage this number of young children.
[6] According to the complainant, on some occasions she would come early in the evening to assist with the children, but on others she would arrive shortly before the adults went out at 9:00 or 10:00 after the children went to bed. She would stay the night and leave the following day.
[7] Brittany lived in the basement. The complainant testified that her practice when babysitting and staying overnight was to sleep there with Brittany and Carlos.
[8] The complainant was carefully cross-examined about the frequency with which she babysat all four children. She testified first that she thought she had babysat for Carlos some 50 times, and around 10 or more times for all the children together. When asked about her police statement where she estimated that it was around 50 times and probably more than 20, she agreed that this was accurate for all the children. She further agreed that the frequency was around every other weekend, and that the period where she babysat accordingly would have lasted the better part of a year. In re-examination, she testified that her estimated number of 20-50 would include any time she was left alone with any of the children, such that there could be multiple events of babysitting in the course of a single weekend.
The complainant’s description of the alleged offences
[9] The complainant testified that the alleged offences took place in the early hours of the morning on a night where she babysat Carlos and Mr. Maxwell’s children. Mr. Maxwell, Morgan, and Brittany had gone out with Brittany’s new boyfriend Jake. The complainant testified that Brittany told her that Jake would be staying over and so asked the complainant to sleep on the living room couch on the main floor of the residence instead of in the basement as she normally did.
[10] Before the adults returned home, the complainant fell asleep on the couch. She wore sweatpants and a t-shirt and had a comforter and pillow. At around 3:00 a.m., she saw Brittany and Jake return and go to the basement. She heard someone she believed was Morgan return with them and go upstairs.
[11] Sometime later, perhaps around 4:00 or 4:30 a.m., she heard Mr. Maxwell enter the residence. He stumbled into the kitchen and then into the open living room and dining room area where she was sleeping. He appeared very intoxicated and had to stabilize himself against walls while walking, and he sat at the dining room table mumbling to himself.
[12] Eventually, Mr. Maxwell stumbled towards the back door of the residence, which was in the same direction as the couch where the complainant was lying on her side. He fell onto the couch on top of her feet. She opened her eyes and asked what he was doing, and he continued to mumble and leaned back in an apparent effort to lie behind her on the couch. He supported himself with one hand and used the other to try to reach into her pants. The complainant tensed her body and held her legs together and grabbed the top of her underwear. Mr. Maxwell reached into her pants and tried unsuccessfully to pry her hands off the band of her underwear.
[13] The complainant testified that she asked him many times what he was doing, and he initially was simply breathing heavily and grunting. He smelled strongly of alcohol. She told him to stop and he replied that if she made any noise or told anyone, he would say that she was lying. He told her that he knew where she lived and would kill her. He repeated “nobody will believe you, do you know that?” The complainant stopped verbally protesting after he threatened to kill her but continued to physically resist.
[14] This assault ended abruptly when somebody could be heard walking around upstairs. Mr. Maxwell quickly got off the complainant and went out the back door, apparently to smoke. When he got up, she saw that his pants had come down and he had an erection visible through his boxer shorts.
[15] The complainant quickly gathered her belongings and left the residence. She returned home and spent some time in her building’s lobby feeling distraught and contemplating what to do. She eventually decided that she was not going to tell anybody what had happened. She explained several reasons for this decision. Her family and Mr. Maxwell’s family were friends and her mother socialized with his family and she did not wish to ruin those relationships. She cared about his children and feared the impact her disclosure would have on them. She was also afraid of Mr. Maxwell’s threats.
[16] The complainant never returned to the Bergamot residence. She babysat occasionally for Brittany again, but only after Brittany moved out from Bergamot some months after the incident with Mr. Maxwell. She told her mother that she wanted to find better paying work and was no longer interested in babysitting. While she would see Mr. Maxwell’s family members at social events occasionally, she distanced herself from them as much as possible.
The complainant’s evidence about the timing of the alleged offences
[17] When she gave her police statement, the complainant, born in November 1998, estimated that the offence took place when she was 14 or 15 years old, or in 2014 or 2015. She recalled it taking place in the spring or the fall based on how she was dressed and the weather she remembered.
[18] In cross-examination, the complainant said that she had thought about timing since her statement and concluded that the event was in the spring. She remembered that it corresponded to a birthday celebration and believed that this was for Mr. Maxwell and Morgan, whose birthdays were in May, rather than Brittany whose birthday was in November.
[19] The complainant had a sweet 16 party in November, 2014. Brittany helped her plan and prepare for it. The complainant initially testified that she clearly remembered that this party was after the incident with Mr. Maxwell, and that it was very difficult spending so much time with his sister in preparing for the party as a result.
[20] On the second day of her evidence, the complainant testified that she had accessed photos from an old Facebook account the evening before and had discovered pictures in which she is holding Brittany’s son Carlos, and a picture of one Mr. Maxwell’s daughters. Some of these pictures were taken at the Bergamot residence. She posted these pictures to Facebook between May 23 and May 25, 2015, and she recalled that they were taken on that weekend. Having refreshed her memory with the pictures, she realized that she had been mistaken about the incident with Mr. Maxwell taking place before her 16th birthday. She now recalled that it took place on this May weekend in 2015, a time when there was a birthday barbecue for Mr. Maxwell and Morgan that she attended.
The evidence of Mr. Maxwell
[21] Mr. Maxwell is 32 years old. He denied that the event described by the complainant ever took place, and further denied that she had ever babysat his children. He testified that nobody in his family lived at the Bergamot residence until March, 2015, when his mother moved in along with Brittany and Carlos. He, Morgan, and their three children did not join them until December, 2015. He supported this recollection with a letter from a utility showing a termination of service at his prior address on January 15, 2016.
[22] Mr. Maxwell acknowledged that he would attend the Bergamot residence before moving in and that he had seen the complainant there. He also acknowledged that sometimes he and Morgan would go out with Brittany and leave their children at the residence to be babysat during this time period. However, his evidence was that his mother would care for the children on these occasions, and that the complainant never did. He denied that his mother had any health or other issues that prevented her from caring for the children.
The complainant’s disclosure of the allegation
[23] The complainant testified that for a time she had little interaction with Mr. Maxwell after the offences took place. There was one occasion on which she acquired a vape pen from him. She and Mr. Maxwell gave significantly different accounts of how this occurred but, in my view, little turns on this event.
[24] The complainant testified that she had not intended to tell anyone what had happened, but changed her mind after she started to work as a cashier at the local Walmart and began to encounter Mr. Maxwell there. She testified that when he shopped there, he would invariably go to her cash register and smirk at her and ask how she was doing, and she formed the impression that he was effectively taunting her about what he had done. The frequency of these interactions increased during a time when her mother was travelling out of the country. This led her to tell her boyfriend about what had happened and she eventually resolved to tell her mother upon her return to the country.
[25] Mr. Maxwell agreed that he saw the complainant at Walmart when shopping there. He wavered when challenged on whether he would go out of his way to use her cash register because they knew each other. He disagreed that he approached her while alone several times and attempted unsuccessfully to make small talk.
[26] The complainant’s mother confronted Mr. Maxwell after learning of her allegations and the complainant resolved to go to the police after being told that Mr. Maxwell had not admitted what had happened. The evidence about when these conversations took place was confusing. The complainant initially testified that she spoke to her mother on January 20, 2019 and went to the police a week later. When her memory was refreshed about the date of her police statement, which was given in August 2020, she believed she had spoken to her mother on January 19, 2020 instead. When Mr. Maxwell was cross-examined about being confronted by the complainant’s mother, he agreed that this took place in a bar that closed in December 2019.
The credibility and reliability of the witnesses
Mr. Maxwell
[27] Mr. Maxwell presented as a guarded and wary witness who volunteered little. Some caution and defensiveness is understandable in someone facing serious criminal charges. I also formed the impression that he may normally be a person of few words, at least in formal settings like court. Nonetheless, I agree with Ms. Iny that he gave the impression of trying to say as little as possible to present the smallest possible target for the Crown to impeach or contradict him.
[28] Mr. Maxwell also sometimes changed his evidence materially when challenged. To take one example, when asked about the time in which the complainant’s mother confronted him and said she knew what he had done to her daughter, he first agreed that he had not said anything in response. When challenged about why he would be silent if he did not understand what she was referring to, he changed his evidence and testified that he had told the complainant’s mother that he did not know what she was talking about. I found this part of his testimony unconvincing.
[29] In cross-examination, the Crown extensively probed Mr. Maxwell’s description of his family’s living arrangements and the timing of his move to the Bergamot residence, suggesting that his version of these events was implausible in various ways. I see no real basis to find this part of his testimony inherently implausible. Mr. Maxwell has more reason to remember when he lived in different residences and who lived with him than the complainant does, and she was not a reliable historian about dates and the sequence of events. I accordingly prefer Mr. Maxwell’s evidence about who lived in the Bergamot residence at the relevant times.
The complainant
[30] The complainant, by contrast, was an open and direct witness. She became very emotional when describing the details of the encounter with Mr. Maxwell in a way that seemed sincere and genuine. She became hostile at points during cross-examination, but not in a way that I found detracted from her credibility.
[31] The challenge to her credibility rested on two main points. First, the defence alleged a motive to fabricate. Second, the defence pointed to inconsistencies within her evidence and between her evidence about when the alleged offence took place and the defence evidence about who lived in the Bergamot residence and when.
The alleged motive to fabricate
[32] In considering the alleged motive to fabricate, I bear in mind that there is no onus on a defendant to explain why a complainant would make a false accusation. It is also important to bear in mind the distinction drawn in our law between an absence of evidence of a motive to fabricate and a proved absence of motive. A trier of fact can consider the absence of evidence of a motive to fabricate, but only as one factor that should not be given overriding or undue weight.
[33] I note that the defence quite properly did not rely on the delay in coming forward standing alone as undermining the complainant’s credibility. There is nothing unusual about a victim of a sexual assault not making an immediate complaint and the complainant gave an entirely reasonable explanation for not telling anyone right away.
[34] The defence argues that at the time she disclosed this allegation, the complainant had a motive to fabricate it in order to explain to her mother why she was acting out in various ways, including staying overnight away from home. Mr. Christie argues that the complainant’s mother was blaming the complainant’s boyfriend for these behavioural issues and that the complainant wished to deflect blame onto Mr. Maxwell, a person whom the complainant’s mother believed would behave badly when drunk.
[35] The defence carefully elicited an evidentiary foundation for this argument from the complainant, who candidly agreed that this was generally the state of affairs at the time she complained to her mother, while denying that she was motivated to do so falsely. I have accordingly considered whether this alleged motive gives me reason to doubt the complainant’s testimony.
[36] I do not believe that the complainant made up this allegation to mollify her mother. She also had good reason not to fabricate this particular story. Mr. Maxwell’s family and the complainant’s family had a close relationship. The complainant’s disclosure, quite predictably, led to serious conflict that harmed that relationship. If the complainant wanted to reconcile her mother and boyfriend and to avoid criticism from her mother about her behaviour, it seems to me that there were many easier ways to bring this about than inventing this sort of allegation about Mr. Maxwell.
[37] I also note that the defence contends that the complainant is also lying about ever having babysat Mr. Maxwell’s children. On the evidence I heard, the complainant’s mother was aware of where, when, and for whom the complainant would babysit. I heard no evidence from the complainant’s mother about what she remembers on this subject and can make no finding on the subject. But if the complainant’s mother was the primary intended audience for a lie, then it seems strange to me that the lie would incorporate details that she would be in a position to know were false.
The inconsistencies and difficulties with timing in the complainant’s evidence
[38] The other main attack on the complainant’s credibility centred on changes in her evidence over time. Some of these strike me as relatively minor. For instance, a considerable amount of time was spent on her memory of the state of the trees when she walked home after the alleged incident with Mr. Maxwell. The complainant tried to situate that event in time by remembering the season, and believed from the clothing she recalled wearing that it took place in spring or in fall.
[39] In her police statement, she recalled the trees having reddish leaves falling when she was walking home. By contrast, in her examination in-chief, she recalled the trees being bare but budded. When questioned about this, she testified that she was not particularly focused on this detail at the time she was walking home. Between her police statement and her evidence at trial, she came to believe that the offences took place in the Spring around the time of Mr. Maxwell and Morgan’s birthday and in thinking further about it with this in mind, she remembered the state of the trees differently.
[40] Anyone who works in the justice system quickly learns that honest witnesses are frequently inaccurate about details, that witnesses who go over events in their own minds may make their recollections less reliable by doing so, and that many witnesses are unaware of how fallible their memories can be. The complainant had no reason to pay attention to the weather or the appearance of the leaves on the trees, and one could not reasonably expect her to reliably remember such background details. Even given the high standard of proof, we cannot hold witnesses describing long ago events to an unrealistic standard of perfect accuracy on peripheral details, and I do not understand the defence to be suggesting otherwise. I would not place any weight on this inconsistency, standing alone, in assessing her credibility and reliability on the core of her evidence.
[41] To be clear, defence counsel’s argument about this inconsistency does not rest on the argument that the complainant should be expected to remember that sort of detail. Rather, the defence submission is that this an example of the complainant altering her account to fix an apparent problem with the statement she gave to the police, and that this adversely affects her credibility. However, I see this as equally consistent with an honest witness who may have confabulated details while thinking about what happened and when it may have happened.
[42] I have also considered whether the complainant’s general difficulty in situating this event in time reflects adversely on her credibility. She has attempted this in several different ways. She first estimated to the police it was when she was 14 or 15, and also suggested that it was the years 2014 or 2015, during which she was between 15 and 17.
[43] As I have already described, in cross-examination during the first day of her evidence, the complainant testified definitively that the alleged offence took place before her 16th birthday party in November, 2014. She agreed that Mr. Maxwell’s sister Brittany had helped her plan the party. She testified that she clearly remembered feeling uncomfortable given that she was trying to distance herself from Mr. Maxwell’s family at this time in view of the sexual assault.
[44] The following day, the complainant testified that having accessed pictures she took in May, 2015 at the Bergamot residence, she had concluded that the offences took place at that time. She explained her earlier evidence about the 16th birthday party by saying that she had been, in effect, thinking back about the 16th birthday party through the lens of her belief that Mr. Maxwell had assaulted her earlier than that, and had imagined how she must have felt at the time.
[45] The Crown has also submitted that, in view of the complainant’s evidence that she babysat at Bergamot many times before the offences and the defence evidence that nobody moved in there until March, 2015, it is possible that the actual date of the offences might be May, 2016, a time when both Brittany and Mr. Maxwell were living in the residence as the complainant described. The complainant would have been 17 years old at that time.
[46] For an event that she reported at age 20 or 21, estimates of her age at the time ranging from 14 to 17 seem quite broad and imprecise. Even so, I do not find that the complainant’s general vagueness about the timing of the event discredits her evidence. It is notable that she was similarly uncertain about the timing of her disclosure of the allegations to her mother, an event that unquestionably happened and about which she has no apparent reason to lie. She could not remember whether this took place in 2019 or 2020 and thought that it happened a week before she went to the police when it appears to have been at least nine months before and maybe much longer. Some people have more organized memories than others about the timing and sequence of events and I conclude that the complainant is simply not a very reliable historian about this sort of thing.
[47] I also believe that the complainant’s explanation for her inaccurate memory of her 16th birthday party makes sense. That said, the Crown’s effort to meet the very high standard of proof in this case rests on the complainant’s credibility and accuracy in remembering what happened. It does cause me concern that she testified to a clear memory of relevant events on a memorable occasion close in time to the alleged offences that did not actually happen.
[48] The other concerning inconsistency arose during re-examination. As I have already described, the complainant in cross-examination clearly said that she babysat Mr. Maxwell’s children at the Bergamot residence on more than 20 weekends at a frequency of every other weekend. The significance of this is that, accepting as I do that no member of the Maxwell family lived at that residence before March, 2015, she could not have babysat anywhere approaching that number of times before the May, 2015 date which she ultimately identified as the time she believed the offences occurred.
[49] In re-examination, she explained her estimate differently in a way that was irreconcilable with her earlier evidence. Mr. Christie forcefully submitted that this was an example of the complainant seeking to assist the Crown by giving the answer that Crown counsel wanted to hear, and it did seem to me to have that appearance at the time. On reflection, I am not sure that this was the complainant’s motivation. Her police statement, where she first gave the estimate of more than 20, is ambiguous. It could easily be read as the number of times she babysat either for Brittany’s son or for all the children. In cross-examination, the complainant agreed with the defence suggestions that she meant all the children and that this was the number of weekends. In that sense, she might be seen to have been open to suggestion by both counsel on this subject.
[50] I do not conclude from this that the complainant was testifying dishonestly, and her ability to remember how often she babysat is not necessarily crucial to her overall reliability. Nonetheless, this change in her evidence does show a malleability and uncertainty in her evidence and memory about significant details that gives me pause when assessing the Crown’s case in light of the very high standard of proof.
Conclusion
[51] If my task was to approach this case as a credibility contest, and to decide on a balance of probabilities who was telling the truth, this would be an easy decision. The complainant was far more credible and believable than Mr. Maxwell.
[52] However, my task is the much harder one of deciding whether the Crown has proven its case beyond a reasonable doubt. I am satisfied that very probably something happened along the lines of what the complainant has described and that she is probably accurate in her memory of the critical details. But the degree of uncertainty about relevant details present in the Crown’s case leaves me unable to say with the required confidence that I am sure of what happened and that I can completely reject Mr. Maxwell’s denials. It follows that I must find him not guilty.
Dineen J. Released: March 27, 2024