COURT FILE NO.: CR-22-10000337 DATE: 20241115

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: His Majesty the King – and – G.W.

COUNSEL: David Smith, for the Crown James Lisowski, for the Defendant

HEARD: June 3, 5, 6, 7, 10, October 1, 2, 2024

Publication Ban

Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada.

Reasons for Judgment

NISHIKAWA J.

Overview

[1] The defendant, G.W., is charged with one count of sexual assault. The charge arises from an incident that took place in October 1995.

[2] At the time of the incident, G.W. and the complainant, S.M., were both non-commissioned members of the Canadian Forces. S.M. was 21 years old. The defendant and the complainant, who did not know each other at the time, both attended a Halloween party at the Canadian Forces base at the Fort York armoury. They met for the first time at the party.

[3] As further detailed below, the complainant alleges that when she was leaving the party, G.W. accompanied her to the parking lot where her vehicle was parked. He then pinned her against the vehicle with force and tried to penetrate her vagina with his penis. The complainant heard people coming to the parking lot and raised her voice. The defendant then stopped and left the complainant.

[4] The defendant, who testified at trial, denies that any sexual assault took place.

[5] The trial began before a judge and jury. However, during the course of the trial, an issue arose that caused the defence to seek an adjournment, which the Crown did not oppose. The defendant then re-elected to be tried by judge alone.

Issues

[6] The only issue in this case is whether the Crown has demonstrated beyond a reasonable doubt that G.W. sexually assaulted S.M.

Analysis

The Applicable Principles

The Offence of Sexual Assault

[7] The actus reus of sexual assault has three parts: (i) touching; (ii) the sexual nature of the contact; and (iii) the absence of consent: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 25. The mens rea is demonstrated by showing that the application of the force is intentional, and the accused knows that the complainant is not communicating consent to the particular act in question or is reckless or wilfully blind to the lack of consent: R. v. Barton, [2019] 2 S.C.R. 579, at paras. 87. The Crown must prove each element beyond a reasonable doubt.

[8] Under s. 273.1(1) of the Criminal Code, R.S.C., 1985, c. C-46, consent means the voluntary agreement of a person to engage in the sexual activity in question. The absence of consent is determined by reference to the complainant’s subjective state of mind at the time the sexual touching occurred: Barton, at paras. 87-89. In R. v. J.A., [2011] 2 S.C.R. 440, at para. 37, the Supreme Court stated that “[t]he complainant is not required to express her lack of consent or her revocation of consent for the actus reus to be established” (emphasis in original).

Assessing the Evidence

[9] Before proceeding with an examination of the evidence, it is useful to set out the principles that are applied by the court in weighing the evidence.

[10] To begin with, the defendant is presumed innocent. The Crown bears the burden of proving the elements of the offence beyond a reasonable doubt. The reasonable doubt standard is a high standard. It is not sufficient to prove that the defendant is probably guilty. However, the Crown is not required to prove its case to the point of absolute certainty, which would be impossibly high.

[11] Pursuant to s. 274 of the Criminal Code, corroboration is not required in order to find an allegation of sexual assault proven beyond a reasonable doubt. The complainant’s evidence alone can be the basis to find that an allegation of sexual assault is proven, if it is found to be sufficiently credible and reliable to meet the reasonable doubt standard of proof: R. v. Azonwanna, 2020 ONSC 1513, at para. 20.

[12] In assessing the evidence, the court must follow the approach set out by the Supreme Court of Canada in R. v. W. (D.), [1991] 1 S.C.R. 742 at pp. 758. The following analysis applies:

(i) If the court believes the defendant’s evidence, he must be found not guilty;

(ii) If the court does not believe the defendant’s evidence, but it leaves the court with a reasonable doubt, he must be found not guilty; and

(iii) Even if the defendant’s evidence does not leave the court with a reasonable doubt, the court may only find the defendant guilty if the court is persuaded that the Crown proves the charges beyond a reasonable doubt.

[13] In the end, I must determine whether the Crown has met its burden of proof based on the entirety of the evidence heard. My determination is not based on who is more believable, as between G.W. and S.M., but is guided by the Crown’s burden to prove its case beyond a reasonable doubt.

[14] At the first step of the W.(D.) analysis, a defendant’s evidence should not be considered in isolation but in the context of all the evidence: R. v. Hoohing, 2007 ONCA 577, at para. 15. Thus, if G.W.’s account is believed or leaves the court with a reasonable doubt about what happened, within the context of the totality of the evidence, he must be found not guilty.

[15] If, after considering the whole of the evidence, the court is not sure who to believe, this can also give rise to a reasonable doubt: R. v. J.H.S., [2008] 2 S.C.R. 152, at paras. 11-12.

Application to the Facts

The Crown’s Evidence

[16] The complainant, S.M., was the sole witness for the Crown. S.M. joined the military in May 1994 when she was 20 years old. At the time of the incident, she had the rank of private – trained. S.M. is currently a warrant officer with the Canadian Forces.

[17] On or around October 28, 1995, S.M. attended the junior ranks Halloween party at the Fort York armoury. The party was held at the junior ranks mess on the second floor of the building. S.M. had rented a costume for the party that she described as a ball gown or Marie-Antoinette type costume with a “poofy” hoop skirt. S.M. arrived at the beginning of the party, which started at approximately 7:00 p.m., and went to the washroom to change into her costume.

[18] S.M. testified that at the party, she was socializing with friends and had three to four drinks over the course of four to five hours. She stopped drinking at approximately 10:00 p.m.

[19] S.M. testified that at some point during the evening, G.W. offered to buy her a drink. They went to the bar together and then danced on the dance floor. After a couple of songs, a slow song came on. G.W. asked S.M. to dance to it. The complainant testified that during the slow song, G.W. tried to kiss her a couple of times. She turned her face away from him because she was not comfortable with a public display of affection when they had just met and other people were watching.

[20] Later in the evening, S.M. was going to leave the party when she saw G.W. on the outside balcony. He offered to buy her another drink, but she declined because she was leaving and had to change out of her costume. The complainant testified that G.W. then offered to accompany her to her car, which was parked in a parking lot behind the armoury. S.M. testified that she declined the offer, but G.W. nonetheless accompanied her to her car. He was not able to walk directly beside her because of the volume of her skirt, but he followed behind her.

[21] S.M. testified that the parking lot was not well-lit and that there was a tree casting a shadow where her car was parked. Once they got to her vehicle, G.W. tried to kiss her and make physical advances. The complainant testified that she said no and asked him to stop. She testified that he then forcefully pinned her against the vehicle. In chief, S.M. testified that they were on the driver side of the vehicle, which was a Jeep Cherokee Laredo, but could not recall exactly where in relation to the driver and passenger doors.

[22] S.M. testified that as G.W. pinned her against the vehicle, she pushed against him with her arms with all her might, but he overpowered her. He then lifted her skirt, pulled her underwear and stockings down to her knees, and tried to rape her. The complainant testified that the defendant’s hands were “all over” her, including her breasts, and that she felt his penis against her vagina. He was also kissing her neck. S.M. testified that she could hear people coming into the parking lot, so she raised her voice, causing G.W. to stop. S.M. testified that G.W. then pulled back, zipped himself up and walked away. He did not penetrate her vagina.

[23] In examination in chief, S.M. testified that after G.W. left, she was shaking and that she sat in the car sobbing for “minutes”. She testified that she was in shock because she was not expecting an assault to happen. S.M. testified that she did not consent to any sexual activity. S.M. testified that she could not drive home with the costume on, so she had to go inside the building to change her clothes before departing. S.M. testified that she eventually drove herself home.

[24] The complainant testified that she recalled telling a female non-commissioned officer in her chain of command or unit what happened within days or a week of the incident. She did not know what happened after that, but she believed that there was no formal investigation. S.M. recalled being told that it was a “he said she said.” In 1999, S.M. was interviewed about the incident by military police but was not ready to come forward at that time. In 2020, S.M. made a formal complaint to the National Investigation Service.

[25] On cross-examination, S.M. was asked to identify where in relation to the vehicle she was pinned. She testified that she was certain that it was on the driver side but that she could not remember if the door was open or closed. She testified that she remembered “being pushed against the vehicle, what part I cannot tell you.”

[26] S.M. was then confronted with the notes of two Canadian Forces investigators, Sergeant King and Corporal Savage, who interviewed her in 1999. [1] It was put to S.M. that the investigators’ notes described the incident as taking place “in the car[.]” S.M. was cross-examined about the investigators’ use of the following words in their notes: (i) that G.W. “pushed her down in seat, back seat”; (ii) that S.M. was “pushed against seat”; and (iii) that she was “held down”.

[27] On cross-examination, S.M. denied that the assault took place in the car and testified that she was never fully in the vehicle. She testified that it was impossible for her to be in the car because of the large hoop skirt she was wearing as part of her costume. S.M. was cross-examined on the investigators’ notes which stated that when she was asked how long she and the defendant were “in the vehicle”, that she had answered “a few minutes”. S.M. responded that the fact that an investigator wrote something in the notes does not mean that she said it.

[28] The complainant testified that she was putting things in the backseat of the vehicle and had just turned around when G.W. pinned her against the vehicle. She testified that the back door of the vehicle was open and that “part of my body may have been inside the vehicle” and that “if part of my torso was in the vehicle it was because he was pushing me against it – that’s possible”. S.M. gave the following evidence on cross-examination:

Q: Ms. M., what I’m suggesting to you is that the version of events that you were describing to investigators back in 1999, wasn’t that… you weren’t describing that you were pinned up against the vehicle. Do you agree with that?

A: It says… pushed her down in seat, back seat. That’s what it says, yes.

Q: And so, Ms. M., what I’m going to suggest to you is that with the comments made in the notes by the investigators, in terms of the specific terms, it actually describes a situation in which you are being pushed down onto the back seat in the vehicle.

A: OK, so, how would you describe it… one-half of my, my top half is inside the vehicle and my bottom half is outside the vehicle. How would you have either myself or the investigator describe that?

[29] On re-examination, S.M. was asked whether, during the assault, her body crossed the threshold of the back door, to which she responded, “yes, absolutely.”

[30] S.M. was also cross-examined on her testimony in chief that after G.W. left, she sat in the vehicle and sobbed, given that she also testified that she could not drive home in the costume, which was too large for her to sit comfortably in the driver’s seat. In her 2020 statement as well, S.M. stated that after the defendant left, she sat in the car and sobbed. On cross-examination, S.M. testified that she sat “against the vehicle” near the wheel well. She denied that she had testified in chief that she sat in the vehicle. She testified that she only sat in the vehicle before leaving, once she had changed her clothes, and was no longer wearing the costume.

[31] Further, S.M. was cross-examined on her evidence in chief that the defendant had touched her breasts because in 1999, she stated that she could not recall whether the defendant touched her breasts.

Reliability and Credibility of S.M.

[32] In weighing the evidence, I must assess the credibility and reliability of the witnesses’ testimony. This involves a consideration of the internal consistency of each witness’s testimony and its consistency in the context of the evidence as a whole. I am mindful that in assessing credibility and reliability, I must be careful not to place too much emphasis on the demeanour of any particular witness in court.

[33] My main concern about the complainant’s evidence is with the reliability of her recollection of the incident, which took place 30 years ago, in view of the inconsistencies with the information that she provided to the investigators in 1999, which was much closer in time to the incident. S.M. testified that she has a fairly good recollection of that night and that she remembered certain aspects of it very clearly. However, in my view, the inconsistencies in her testimony raise questions about the reliability of her recollection.

[34] As summarized above, S.M.’s testimony in chief detailed an incident that took place outside her vehicle, on the driver side, in which G.W. pinned her against the vehicle. On cross-examination, when confronted with the 1999 investigators’ notes, S.M.’s description of the incident changed and became significantly more detailed. She testified that the rear door of the vehicle was open, her upper body was in the vehicle, with her back pinned against the back seat and her lower body was outside of it. When S.M. had previously been asked in cross-examination whether she recalled her back being against the metal of the vehicle, she testified that she recalled G.W. pushing her against the vehicle because there was nothing else for him to push her against.

[35] While the Crown argues that S.M.’s testimony on cross-examination is consistent with her evidence in chief, I disagree. In my view, being pushed or pinned against the exterior of a vehicle is very different from being pushed against the seat of a vehicle. Had the rear passenger door of the vehicle been open, and had G.W. pinned her against the backseat of the vehicle, I would expect S.M. to have testified to some aspect of that in chief. When asked on cross-examination why she testified in chief that G.W. pinned her to the vehicle, as opposed to the back seat, S.M. responded that the back seat is part of the vehicle. In my view, this does not explain why she described the assault in a particular way in chief and in a different way in cross.

[36] In addition, S.M.’s evidence became more certain on cross-examination. While she was initially uncertain whether one of the car doors was open or closed, she was subsequently certain that the door was open and that G.W. assaulted her right after she turned around after putting items in the car. However, S.M. testified that she had gone to the car to retrieve her clothes so that she could change out of her costume.

[37] I recognize that in some instances, a witness might remember specific details after their recollection has been refreshed from an earlier statement, including on cross-examination. I am also mindful that almost thirty years have passed since the incident, which was traumatic to S.M. It is not surprising that S.M.’s recollection would have changed over such a lengthy period of time. For example, it is not unusual that S.M. would not remember the precise order of events, such as at which point she sat in the car and sobbed and whether or not G.W. touched her breasts. In my view, those are not material inconsistences that affect the credibility or reliability of S.M.’s evidence.

[38] I further note that the 1999 investigators’ notes were not a verbatim statement of what S.M. told them at the time. There was no recording of the interview, and the notes could contain errors, either because the investigators misunderstood S.M. or wrote something down incorrectly. In that sense, strictly speaking, S.M.’s credibility was not impeached on the basis of a prior inconsistent statement.

[39] However, the shift in S.M.’s evidence between examination in chief and cross-examination and during the course of cross-examination is concerning not only because of the inconsistencies identified above, but because it revealed a tendency on S.M.’s part to revise her evidence to reconcile the account she gave in 1999, as recorded in the investigators’ notes, and her testimony at trial. While I otherwise found S.M. to be a candid and compelling witness, this tendency raises a concern about her credibility.

[40] This tendency was also evident in the shift in S.M.’s testimony about sitting in the car and sobbing after G.W. left her. In chief, S.M. testified that after G.W. left, she sat in the car and sobbed. In cross-examination, S.M. initially testified that she sat in the car sobbing and shaking. She testified that she was able to lift the skirt and get in the car to recompose herself but that she would not have been able to drive like that. However, at a later point in the cross-examination, S.M. testified that she was “leaning against the truck” and not sitting in the vehicle when she was sobbing. S.M. testified that she only sat in the vehicle after she changed out of her costume.

[41] When the differences between the investigators’ notes and her testimony were put to her in cross-examination, S.M. became argumentative. She suggested that the investigator’s first language was not English and noted spelling mistakes in the notes. In response to a question about whether she was lying down or standing up during the assault, S.M. did not respond to the question but gave an explanation about how she used different language then, because she was shy and did not have the strength to use explicit language that she would use to describe the incident now. Neither response explained the discrepancies. S.M. also repeated her earlier testimony giving details of the assault when it was not responsive to the question being asked.

[42] For the foregoing reasons, S.M.’s evidence gives rise to concerns in terms of both its reliability and credibility.

Did S.M. Have a Motive to Fabricate?

[43] The defendant initially cross-examined S.M. about her employment history with a view to demonstrating that S.M. fabricated the allegations for employment-related reasons. During the course of the trial, the defendant abandoned this theory. The defence did not put forward a motive to fabricate, whether employment-related or otherwise.

[44] I am mindful that the absence of evidence of motive to fabricate is not the same as affirmative proof of no motive to fabricate. Just because there is no apparent reason for a witness to lie does not mean that the witness is telling the truth: R. v. O.M., 2014 ONCA 503, 318 O.A.C 390, at para. 107. The presence or absence of an established motive to fabricate is merely one factor in assessing a complainant’s credibility: O.M., at para. 108. The issue must be considered in the context of the evidence as a whole. It must also be borne in mind that the defence does not have a burden to prove that a witness has a motive to fabricate: R. v. Bartholemew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at paras. 19-25; R. v. John, 2017 ONCA 622, at paras. 93-95.

The Defence’s Evidence

[45] G.W. also attended the Halloween party that night. He testified that he arrived at approximately 9:00 p.m. and made his way to the second floor of the armoury where the junior mess was. While S.M. testified that the defendant was in a Dracula costume with his face painted white, G.W. testified that he was not wearing a costume that evening. The defendant made his way through the crowd to the bar and was standing there when he observed a bit of a commotion. He turned to look over his shoulder to see someone in a big ballgown garnering the other attendees’ attention. The commotion was because other attendees were making space for S.M. with her large dress to move through the crowd to the bar. The defendant then met S.M. for the first time.

[46] G.W. testified that at the bar, he and S.M. started to talk. He denied offering to buy her a drink. G.W. testified that he asked S.M. about her costume and she said she was a princess or something of that nature. As they waited for their drinks, they chatted about the party.

[47] The defendant testified that after they got their drinks, they moved a few feet to the dance floor and started dancing facing each other. They had danced to a couple of songs when a slow song came on. He said that because of the size of S.M.’s dress, he did not get close to her, but held her hands and twirled her on the dance floor, like swing or ballroom dancing. G.W. testified that because of S.M.’s costume, they were role-playing, she as a princess or lady, and he as a gentleman. At the end of the slow song, G.W. thanked her for the dance. They then leaned forward and touched each cheek, in a European-style air kiss. G.W. denied kissing S.M. on the dance floor.

[48] G.W. testified that after they danced together, he and S.M. parted ways. He did not see S.M. again until an hour or hour and a half later. At that point, the defendant was outside on the balcony talking to other people. S.M. came toward him, reached out her hand and said, “let’s go dance” because she liked the song. G.W. recalled that the song was “Time Warp,” and a lot of people were racing to the dance floor to dance. He went back inside with S.M. and they danced just inside the doorway because the room was full. G.W. testified that after that, they again went their separate ways.

[49] The defendant testified that at around midnight, he was outside the party room talking to a couple of guys when S.M. approached to say she was leaving. G.W. said he also had to leave to catch his bus. G.W. testified that he said he would “escort the lady downstairs” and gave S.M. his elbow. He recalled the other two men snickering about him being a “gentleman.” S.M. accepted, took his elbow and they started to walk toward the stairwell. G.W. testified that because of S.M.’s dress, he walked slightly behind her.

[50] G.W. testified that they walked to the parking lot and S.M. pointed out her car. He described the parking lot as well-lit. There were approximately 10-12 people in the parking lot, standing around smoking and talking. G.W. testified that they chatted for a couple of minutes about the party and people’s costumes. S.M. then told him she was going to leave, and he said he had to catch his bus. G.W. testified that he did not want to miss the bus, which would arrive at 12:15 a.m., because if he did, he would be waiting for a long time. S.M. got into the driver’s seat of her vehicle and piled her dress in. There was still some of the dress hanging out, so G.W. reached down and helped her stuff the rest of her dress in the car. G.W. testified that S.M. backed the car out, waved at him and left. G.W. waved back. As S.M. was pulling out, another car was coming, so he stepped out of the way. He then went across the street to catch his bus.

[51] On cross-examination, G.W. testified that he could not recall any other individuals he interacted with that night. He denied pinning S.M. to her vehicle, making advances and sexually assaulting her.

Reliability and Credibility of G.W.

[52] In considering G.W.’s testimony, I am mindful that a trial judge should avoid assuming that an accused would lie to secure an acquittal, which would be contrary to the presumption of innocence: R. v. Laboucan, [2010] 1 S.C.R. 397, at para. 14.

[53] The Crown, relying on R. v. J.J.R.D., 2006 ONCA 40088 at para. 53, argues that a considered and reasoned acceptance of the truth of S.M.’s evidence should lead this court to reject G.W.’s evidence outright. G.W.’s evidence was not significantly undermined on cross-examination because he simply denied each of the allegations put to him as to what happened once they arrived at her vehicle.

[54] G.W.’s evidence was consistent with S.M.’s evidence in respect of how they met, that they danced together, including for one slow song, and that he accompanied her to her vehicle. The inconsistences to that point are about specific details, such as whether G.W. bought a drink for S.M. or whether they saw each other an additional time before they both left the party. Given that the incident took place almost 30 years ago, it is not surprising that they would have different recollections of such details.

[55] G.W. had a very detailed and specific recollection of his interactions with S.M. However, he did not recall the name of any other individual with whom he interacted that night or any details of those interactions. Other than the fact that S.M. was wearing a notable costume, there does not appear to be any reason why G.W. would remember the details of his interaction with S.M. when those interactions, as he described them, were not particularly unusual or significant. In my view, this raises a concern about the credibility of his evidence.

[56] In addition, I do not accept G.W.’s testimony that after he walked S.M. to her vehicle, she got into the driver’s seat with her large hoop skirt and drove away. S.M.’s evidence, which I accept on this point, is that the volume of the skirt made this impracticable.

Did the Crown Prove the Offence Beyond a Reasonable Doubt?

[57] In her evidence, S.M. mentioned a number of times how the volume of the hoop skirt of her costume was an impediment, for example, to sitting in the car and to G.W. walking beside her. S.M. described the hoop skirt as consisting of a number of plastic hoops approximately the size of a hula hoop in the skirt to hold the skirt of the dress she was wearing out when worn. When the skirt was lifted, the hoops stacked together. S.M. maintained that the skirt was too large to get into the car from which I understand that while the hoops stacked together, they maintained their circular shape.

[58] On cross-examination, defence counsel put to S.M. that it was impossible for G.W. to hold her against the vehicle with force, while also lifting the hoop skirt, pulling down her underwear and stockings, and unzipping his pants. S.M. testified that when G.W. lifted her skirt, the hoops gathered together and “flipped back”, allowing him to “gain access to [her]”. She denied that the hoop skirt impeded G.W. from pushing up against her and groping and kissing her in the manner that she described. S.M. testified that G.W. was able to hold her down with one arm while pulling up the skirt, pulling down her underwear and unzipping himself with the other hand.

[59] Given S.M.’s description of the volume of the hoop skirt and the extent to which it was an obstacle at other times that night, it remains unclear to me how G.W. was able to manipulate the hoop skirt while holding S.M. down and also taking the other actions detailed. In my view, there is a lack of evidence regarding the position of the hoop skirt during the alleged assault that leaves me uncertain as to how it occurred.

[60] Applying the W.(D.) analysis, I have concerns about G.W.’s testimony, in the context of the evidence as a whole, and do not believe his account of the interaction between S.M. and him at her vehicle. I reject G.W.’s evidence that S.M. got into her vehicle, waved, and drove away. I find it likely that something happened after the defendant and the complainant arrived at her vehicle in the parking lot that night. However, having considered the testimony of both G.W. and S.M. and the entirety of the evidence, I am left in a state of uncertainty as to what happened.

[61] I am mindful of the Crown’s argument that the core of S.M.’s evidence was consistent and that any discrepancies are minor, given the significant passage of time. In my view, however, the inconsistencies cannot be reconciled and raise a concern about the credibility and reliability of her evidence.

[62] The criminal standard of proof beyond a reasonable doubt is a heavy burden. It is not enough to find that the defendant probably or likely committed the offence. Having considered the evidence of both G.W. and S.M., in the context of the evidence as a whole, I am left with a reasonable doubt. This does not mean that I find that nothing happened, but only that the Crown has failed to prove beyond a reasonable doubt that a sexual assault occurred.

Conclusion

[63] For all the foregoing reasons, the Crown has failed to prove beyond a reasonable doubt that G.W. committed a sexual assault against S.M. Accordingly, I find him not guilty.

Footnotes

[1] The investigators’ notes are hearsay and are not admitted for the truth of their contents.

Released: November 15, 2024 Nishikawa J.