Court File and Parties

Court File No.: CR21-101 Date: 2024/08/02 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – R. S.

Counsel: Lorne Goldstein, Counsel for the Crown Jonathan Larochelle, Counsel for the Accused

Heard: December 12-15, 2022, June 13-16, 2023

WARNING

The Court hearing this matter directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18 .

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

Reasons for Judgment

Bramwell, j.

What is this case about?

[1] In this case, I must decide whether RS is guilty of sexually assaulting TL on a date in July, 2020 at the home of SP, who was RS’ girlfriend at the time.

[2] TL testified, which means that she said in court, that she went to SP’s house that day and that RS came over after she did. TL, SP and RS sat on the couch together in SP’s living room. RS began touching TL. SP left the living room and went to her bedroom. TL believed that RS told SP to leave and go to her bedroom.

[3] TL testified that after SP left the room, RS continued touching her, tried to pull her towards him and tried to kiss her, even though she told him to stop doing that. TL texted SP and asked her to come back to the living room. SP refused to return.

[4] TL testified that RS then stood up from the couch, pulled TL up off the couch by her arms, turned her around, pulled up her dress and pulled down her underwear and penetrated her vagina with his penis. TL testified that she continued to say “no” to RS. She made it clear that she did not consent.

[5] If I accept what TL said in court as true, it is clear that all of the elements of the offence of sexual assault would be established.

[6] So, this case turns on whether the Crown has proven beyond a reasonable doubt that what TL said is true.

What do I have to keep in mind when deciding whether RS is guilty of sexual assault?

[7] I must start my decision-making process by presuming that RS is innocent. RS remains innocent until he is proven guilty. RS does not have to prove anything. It is the Crown that must prove that RS is guilty, not RS who must prove that he is not.

[8] Not only must the Crown prove that RS is guilty, but that he is guilty beyond a reasonable doubt. It is not enough for the Crown to convince me that RS is probably guilty or likely guilty of sexually assaulting TL. The Crown must leave me with no reasonable doubt that he is guilty.

[9] If, after hearing all of the testimony, I think that RS is likely guilty but I am not sure, I have to find him not guilty.

[10] In this case, only one person, that being TL, testified about what happened in the living room after SP left and went to her bedroom. SP testified about what happened, from her perspective, before and after TL and RS were alone in the living room. Officer Riel testified about meeting with and interviewing TL after she disclosed the allegations against RS.

[11] I must therefore decide whether TL’s evidence, when considered together with the evidence of SP and Officer Riel, proves that RS is guilty beyond a reasonable doubt of sexually assaulting TL.

Was TL’s evidence credible and reliable?

[12] In order to accept TL’s testimony as true, I must find that it is both credible and reliable. Credibility and reliability are different. Credibility is about whether the witness is testifying honestly. Reliability is about whether the witness is testifying accurately. In determining whether a witness is testifying accurately, I have to consider whether that witness had the ability to accurately observe the events in question, accurately recall or remember later what happened and accurately explain what happened during the events in question when the witness comes to court to testify.

[13] A witness who is not credible, in other words who is not testifying honestly about something, cannot give reliable testimony on that point. On the other hand, a witness may be testifying honestly but may still give unreliable or inaccurate evidence. In other words, an honest witness may be mistaken about the facts.

[14] So, in this case, in order to find TL’s testimony to be proof, beyond a reasonable doubt, I must be confident that her testimony was given honestly and that she is accurate when she talks about what happened.

[15] TL is a person with special needs and I must take that into account when considering her evidence. I have carefully considered the evidence of TL’s older sister who is her primary caregiver. TL’s sister testified that TL is a 29-year-old woman with cognitive and developmental delays and learning difficulties. TL requires assistance with her personal care, medical care and finances. TL’s sister is her power of attorney and makes all of TL’s important decisions for her. TL’s sister testified that TL functions at roughly the level of a child between the ages of 5 and 12, depending on the situation and issue at hand. TL’s sister also testified that TL sometimes appears to understand what is being said to her but, when her understanding is tested by, for example, asking her to summarize or repeat back what was just said to her, it becomes clear that she did not accurately understand the information that was given to her. I must therefore consider TL’s testimony in the context of this evidence about her mental development, understanding and ability to communicate. R. v. W.R. , [1992] 2 S.C.R. 122, para. 26.

[16] That being said, the fact that TL has special needs does not mean that her testimony does not have to meet the same standard of proof beyond a reasonable doubt. I must apply common sense and take into account the strengths and weaknesses of her testimony.

[17] Having carefully reviewed TL’s evidence, in the context of the evidence of her sister about TLs special needs and in the context of the evidence of SP and Officer Riel, I find that I have significant concerns about the credibility and reliability of TL’s testimony. I found some parts of her testimony to be implausible, some parts to be inconsistent with her own testimony, and other parts to be inconsistent with the testimony of SP or Officer Riel.

[18] I found TL’s testimony about the mechanics of how RS had forced vaginal intercourse with her to be implausible. This negatively impacted her credibility. TL said that, after SP left the living room, RS resumed touching her, pulling her towards him, and trying to kiss her, while they were both seated on the couch. She then said that RS “did it.” When asked by Officer Riel, in her video-recorded statement, which became part of her testimony in this trial, to explain what she meant by “did it,” TL said, after some hesitation, that RS had sex with her. When asked to expand upon this and explain exactly what RS did, TL simply said “he put his dick inside me.” Officer Riel was clearly trying to get TL to explain, in her own words, specifically how RS inserted his penis into TL’s vagina but she seemed to have difficulty providing details. Officer Riel then began asking some leading questions of TL in an effort to understand and get more information. He asked TL if she and RS were sitting on the couch at the point that RS put his penis inside of her and she initially said “mmm-hmm” and nodded her head. Then Officer Riel asked her how RS was able to put his penis in her vagina while she was sitting on the couch. TL then said that RS told her to stand up and then “forced” her to stand up by taking her arms and “just standing [her] up.” When Officer Riel attempted to prompt TL to explain how the forced vaginal intercourse happened once she was standing, she was again not able to explain. She just said that RS stood her up and “did it.” Officer Riel asked her what side of her RS inserted his penis into her vagina from and she said “both.” When asked what she meant by that, she said “from behind.” Officer Riel then asked her whether RS penetrated her from the front as well and she nodded in the affirmative. She confirmed that RS penetrated her from behind and from the front while she was standing up and standing straight. In other words, TL’s testimony did not indicate that she was bent over during the alleged forced intercourse. She agreed that she was standing the way Officer Riel demonstrated, putting his hand out flat, straight up and down, perpendicular to the floor. I have two concerns about this testimony. First, it changed from TL initially saying that RS penetrated her vagina with his penis while they were both sitting on the couch to her saying that he did so while they were both standing. Second, it does not make sense that RS could penetrate TL’s vagina with his penis from the front or the back of her, while she was standing straight up, especially considering the fact that TL is quite short. I noted that her feet dangled a few inches above the floor as she sat on the couch during her video-recorded interview. The top of her head seemed to reach near or below Officer Riel’s shoulder as they were standing in the interview room. I would estimate her height as being approximately 5’ tall, at most. Having observed RS in court, I see that he is significantly taller than that.

[19] I find that there were significant inconsistences within TL’s own testimony. The following are two examples:

1. TL said that RS told SP to go to SP’s bedroom before he sexually assaulted TL. TL first said that she did not hear RS give this instruction to SP and that RS “must have” either texted SP and instructed her to go to her bedroom or gone into SP’s bedroom to tell her to stay there. TL later said that RS was in the living room, with her and SP, when he told SP, in front of TL, to go to her bedroom. At another point, later in her testimony, TL said that RS was in the living room with her but then left and went into SP’s bedroom to tell her to stay there. She also repeated that, instead of doing that, he may have texted SP and told her to stay in her room.
2. TL said initially in her testimony that her friend G went with her to SP’s one night after the alleged sexual assault because she and G were hanging out together that evening when SP messaged TL saying “I’m fucking pissed off” and asked TL to come over to SP’s house. TL said that she was nervous after receiving this message from SP and so asked G to go with her to SP’s. When TL and G got to SP’s house, they learned that SP was angry at RS. Later in her evidence, TL said that she messaged SP on this occasion and that she did so because she wanted to go to SP’s house with G because she wanted SP to admit, in front of G, what had happened between TL and RS. Later, TL said that she did not remember who reached out to whom to set up the attendance at SP’s house that day. Then she said that it was not the case that she and G had talked about what happened between her and RS, following which she reached out to SP asking to come over. Then, TL said that SP did not message her on this occasion because she was angry. Later still, TL said that SP did not message her at all on this day but that TL was the one who had messaged SP. Then, TL said again that she and G went to SP’s house because TL wanted SP to admit, in front of G, what RS did to TL.

[20] These changes in what TL said on these topics negatively impacted both the credibility and the reliability of her evidence.

[21] I also find that there was a significant inconsistency between the testimony of TL and the testimony of Officer Riel on the issue of whether TL showed Officer Riel images on her phone that she felt were evidence of SP having child pornography in her Facebook account. The first time that TL mentioned SP having child pornography on her Facebook account was in cross-examination, in court on June 14, 2023. TL said that she showed Officer Riel the child pornography in SP’s Facebook account when she gave her video-recorded statement, which was taken on August 25, 2020. In her video-recorded statement, TL told Officer Riel that she was able to “hack into” SP’s Facebook account. In cross-examination, TL expanded upon this and testified that on the same day that she gave her video-recorded statement to Officer Riel, she showed him the Facebook messages in SP’s account because “what SP was doing to her daughter wasn’t right.”

[22] Officer Riel testified that he had no recollection of TL telling him on the date of her video-recorded interview, or at any other time, that there was child pornography on SP’s Facebook account. He testified that he also has no notes of TL ever having made such a disclosure to him and that he would have noted it, had she done so. Officer Riel further testified that if TL had shown him images of child pornography in someone’s Facebook account, he would have investigated further and even TL just telling him that such materials existed in someone’s Facebook account would be enough to trigger an investigation. Officer Riel confirmed that he did not engage in any such investigation and so the logical conclusion to be drawn is that TL did not tell Officer Riel about, nor did she show him, any images of child pornography in SP’s Facebook account.

[23] I find Officer Riel’s evidence to be both credible and reliable and I accept it. His evidence was not really challenged by defence counsel. I also note that, as part of his professional duties, Officer Riel had taken contemporaneous notes documenting his involvement in the investigation in this matter.

[24] I also find that there were significant inconsistencies between TL’s testimony and that of SP. The following are some examples:

1. TL said that SP texted her and invited her to come over to SP’s house on the date in question. SP said that TL contacted her and asked to come over. SP said that she told TL that she did not want her to come over because SP wanted to spend time alone with RS. SP said that TL came over anyways, against SP’s wishes;
2. TL said that RS came over sometime after she arrived at SP’s house and that she did not want RS to be there. SP said that RS was at her house when TL arrived that day;
3. TL said that RS told SP to go to her bedroom when he started touching TL. SP said that RS did not tell her to go to her bedroom but rather, she made her own decision to go to her bedroom because TL was touching RS and would not stop doing so when SP asked her to. SP said that TL expressed having romantic feelings for RS and said that she would do anything for RS. This made SP angry at TL, so she left and went to her bedroom;
4. TL said that when she asked SP, by sending her a text message, to return to the living room from her bedroom, she told SP that she did not want to have sex with RS and did not want to be alone with him. SP said that TL just asked her to come to the living room but did not say why. SP said that she told TL that she would not return to the living room and remained in her bedroom until after TL left; and
5. TL said that after SP refused to come back to the living room when TL asked her to, and after having put his penis into TL’s vagina without her consent, RS went to SP’s bedroom and spoke to her. TL said that RS and SP then came out of SP’s bedroom and came to the living room and sat on the couch with TL and watched TV.

[25] In considering the inconsistencies between what TL said and what SP said, I must also consider whether I find SP’s evidence to be both credible and reliable.

[26] Like TL, SP, who is 39-years-old, also has special needs. The evidence about this came from SP herself. She explained that she suffers from a condition that she could not spell but which sounded like “Myastevus Gravis.” SP said that this condition affects her muscles and so she uses a walker. She said that she has a speech problem, though as I told her, I did not detect any speech problem as I listened to her testify. SP said that she has very bad anxiety and that her condition may cause her eyes to close involuntarily and for her to “shut down.” SP also said that the Myastevus Gravis affects her cognitive ability sometimes. When asked to expand on that, she said that she sometimes has a hard time hearing and she gets dizzy spells. When asked whether she has problems with her ability to remember, she answered “sometimes, no.” SP said her condition sometimes affects her ability to understand things. SP testified that she graduated from high school.

[27] I find some aspects of SP’s testimony concerning. First, SP seemed to have a bias against TL and in favour of RS. Very close to the beginning of her evidence, SP testified that she was there in court because of “something that someone didn’t do” and she went on to clarify that the “something” was rape. It was clear that SP believed that RS did not commit this offence and her belief seemed based largely on RS’s comments to her denying that he had “sex with” TL.

[28] On the other hand, it is important to note that RS and SP are no longer in a relationship. SP testified that RS broke up with her not too long after these allegations arose and she doesn’t really keep in contact with him now. So, SP does not seem to have an interest in the outcome of this case the same way that she would have if she and RS were still in a relationship.

[29] Also concerning is the fact that there were some significant changes within SP’s evidence as she testified. Two examples of these internal inconsistencies are as follows:

1. SP testified that, before she went into her bedroom, TL was touching RS and saying she had feelings for him and would do anything for him. SP later said that after TL left her house on the day in question, RS came into SP’s room and told her that he did not have sex with TL. When asked for the context within which RS made this statement to her – in other words, when asked to provide more information as to why RS would make such a statement to her – SP said that she asked RS, after TL left, whether he had had sex with TL because “maybe” she wanted to have sex with RS and whether or not she would actually do so would depend on whether he had already had sex with TL. Then, later in her testimony, SP said that the reason she asked RS whether he and TL had had sex is that she had been “cheated on” before. It is important to note that SP did not point to what she says TL said about having feelings about RS and being prepared to do anything for him, coupled with the fact that TL was touching RS as being the basis for her question to RS about whether he and TL had had sex. Common-sense suggests that, after having left the living room in anger because of what she says was essentially inappropriate behaviour by TL towards RS, that would be the basis for any question to RS later about whether he and TL had had sex. Yet, SP did not point to this as the basis for her question. I find that casts doubt on the reliability of her evidence about TL’s expression of feelings for RS and TL’s actions in touching RS.
2. SP was questioned about the method by which TL communicated to her that TL wanted SP to come out of her bedroom and into the living room. When asked whether TL made that request in a text, sent to SP in her room, SP responded “that I don’t remember, um, I do got memory, a bad memory on that. If she did, I never received it.” When a segment of her video-recorded statement to the police was played for her in court to refresh her memory on this point, she agreed that TL had, in fact, sent her a text message asking her to come back to the living room, but she said she never actually received the text. When a further segment of her video-recorded statement was played for her in which she told police that she responded to the text (which would, by necessity, mean that she’d received it), she testified that she responded to the text by yelling out “no” intending to be heard by TL, through the wall, in the living room. She said she did not text TL back.

[30] Both of these examples seemed to me to be examples of an effort on SP’s part to try to explain away inconsistencies in her evidence when she was confronted with them.

[31] I find that the bias that SP seemed to have and the inconsistencies in her evidence negatively impacted her credibility and reliability to a certain degree. I also find that her testimony about her disability sometimes affecting her cognitive ability, her hearing and her memory casts some doubt on the reliability of her evidence though it is difficult to say to what extent given that the extent of the impact of her disability on her ability to observe and remember the incidents in question was not explored in any great depth. What is certainly clear is that SP was not in the living room when the alleged non-consensual intercourse alleged by TL took place.

[32] On the whole, after having carefully considered SP’s evidence, I find that while I have concerns about its credibility and reliability, especially as it relates to the key differences between it and TL’s evidence, I am simply not able to resolve those differences and determine whether TL or SP is telling the truth about the points on which they differ. I just don’t know.

[33] In any event, SP was not in a position to observe the alleged non-consensual intercourse and so it is TL’s evidence that the Crown relies on, essentially entirely, to prove the offence.

Conclusion

[34] Overall, I find that the external inconsistencies, in other words the differences between what TL said and what SP and Officer Riel said, the internal inconsistencies in TL’s own evidence and the implausibility of some of her evidence combine to negatively affect both the credibility and reliability of TL’s evidence to the point that I am not able to accept it as proof beyond a reasonable doubt of the offence.

[35] I want to be clear that nothing in these reasons is meant to suggest that the evidence in this case shows that TL is lying. I understand that TL believes that she was sexually assaulted. I understand that TL did her best to come to court and explain what happened to her. But, as I said before, it is not enough for me to hear the evidence against an accused person in a criminal trial and to be left thinking that he may be guilty or that he is probably guilty. I have to be convinced, to the very high standard of beyond a reasonable doubt that he is guilty.

[36] The evidence in this case does not meet that standard. I am left unsure. And so, the benefit of that doubt must go to RS as the accused person. He must be found not guilty.

The Honourable Justice Lia Bramwell Released: August 2, 2024