Reasons for Judgment

Court File No.: CR-23-0006-0000
Date: 2025-02-27
Ontario Superior Court of Justice

Between:
His Majesty the King
and
S.J., Accused

Appearances:
Ms. E. O’Marra, for the Crown
Mr. J. Virk and Ms. S. Smith, for the Accused, S.J.

Heard: February 24 and 25, 2025

Conlan J.

I. Introduction

[1] S.J. was charged with having sexually assaulted his former employee and friend, M., contrary to section 271 of the Criminal Code. The offence allegedly occurred at Milton, Ontario, at the home of the accused, on October 9, 2011.

[2] The evidence and submissions at trial were completed in less than one full day of court time. Two witnesses testified – the complainant and the accused. In submissions, Ms. O’Marra, quite professionally and in accordance with the highest standard expected of a Crown prosecutor, invited this Court to enter an acquittal. This Court did so. A verdict of not guilty was rendered, with brief reasons to follow for the benefit of both the complainant and the accused.

II. The Undisputed Facts

[3] Now 34 years of age, the complainant worked for the accused’s construction and landscaping company. That company was operated from the accused’s home in Milton. The complainant lived in the basement of that home.

[4] The complainant continued to live and work with the accused until well, in fact years, after the alleged offence date.

III. The Alleged Sexual Assault

[5] The complainant testified that, late in the evening on the date in question, after drinking alcohol with the accused in the living room on the main floor of the accused’s bungalow residence in Milton, the complainant became “incapacitated”. The accused took the complainant downstairs and put him on the bed in the basement. The accused then “raped” the complainant; the accused penetrated the complainant’s anus with his penis. The next day, the complainant was bleeding from his anus as he went to the bathroom. As he was not sure what happened, he asked the accused to take him to the hospital, which was done.

[6] According to the complainant, years later, sometime in 2017, he and his partner travelled from Atlantic Canada to Milton to confront the accused. The three of them sat in the backyard of the accused’s home in Milton. The complainant told the accused that he had taken advantage of the complainant while he was incapacitated. The accused did not appear to be shocked by the accusation. The accused did not outright deny the allegation. The accused replied by saying something like “I don’t know; I was drinking too”.

[7] The accused testified that he may have consumed alcohol with the complainant at his home on the night in question. He never took the complainant to the hospital. He never “raped” the complainant. He never touched the complainant inappropriately or sexually.

[8] According to the accused, there was a time, years later, that the complainant visited his home in Milton. The complainant was alone (and not with any partner). During the discussion that was had on that occasion, the complainant alleged that the accused had “groped” him on the stairs. The accused denied that. There were no other allegations made by the complainant.

IV. A Criminal Trial is Not a Credibility Contest

[9] The accused is presumed to be innocent of the charge. He has no burden to prove anything. The burden of proof rests exclusively with the prosecution. The standard of proof is relatively high – proof beyond a reasonable doubt. Proof beyond a reasonable doubt means something more than proof of probable or likely guilt. Unless and until this Court is sure of the guilt of the accused, S.J. is entitled to an acquittal.

[10] The pathway to verdict in a criminal trial is not to be short-circuited by having the judge simply ask, who was more credible, the complainant or the accused?

[11] The accused in our case steadfastly denied that he touched the complainant in a sexual manner. If I accept that evidence, the accused shall be found not guilty. If I do not necessarily accept that evidence, then I must ask whether it leaves me with a reasonable doubt, and if so, the accused must be found not guilty. If I reject the evidence of the accused such that I neither accept it nor find that it leaves me with a reasonable doubt, then I must ask whether the evidence at trial that I do accept has met the burden of proving the charge beyond a reasonable doubt. If not, then the accused shall be found not guilty. If so, then (and only then) should the accused be found guilty of the offence. R. v. W.(D.), [1991] 1 S.C.R. 742.

V. Credibility is Not the Same Thing as Reliability

[12] The Crown filed the following decision of the Manitoba Court of Appeal: R. v. Perrone, 2014 MBCA 74, which decision quotes extensively from authorities from the Court of Appeal for Ontario.

[13] Set out below are paragraphs 25-29 of the decision in Perrone, supra.

[25] Jurisprudence recognizes that there is a difference between credibility and reliability. In R. v. Morrissey (R.J.), 22 O.R. (3d) 514 (C.A.), Doherty J.A. wrote (at p. 526):

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness’s sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness’s testimony. The accuracy of a witness’s testimony involves considerations of the witness’s ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness’s veracity, one speaks of the witness’s credibility. When one is concerned with the accuracy of a witness’s testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable. In this case, both the credibility of the complainants and the reliability of their evidence were attacked on cross-examination.

[26] In R. v. H.C., 2009 ONCA 56, 244 O.A.C. 288, Watt J.A. described the difference between credibility and reliability (at para. 41):

Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately

i. observe;

ii. recall; and

iii. recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (R.J.), 80 O.A.C. 161; 22 O.R. (3d) 514 (C.A.), at 526 [O.R.].

[27] In short, the fact that a witness may be found to be credible does not answer the question of whether the evidence provided is reliable (see R. v. Vickerson (W.), 200 O.A.C. 87).

[28] The distinction is an important one and must be recognized by a trial judge in order to reach a just verdict. In R. v. Nicholson (C.D.), 86 O.A.C. 68, at the time of an alleged offence, the complainant suffered from a multiple personality disorder. At trial she gave a very fragmented recollection of the event and testified under cross-examination that during the time frame in issue, she had five or six personalities. In overturning the conviction, the court stated as follows (at para. 1):

A careful examination of the reasons for judgment leaves us with the conclusion that the trial judge was concerned with the credibility of the complainant rather than the reliability of her evidence. ….

[29] The court concluded (at paras. 3-4):

…. The extensive reasons for judgment in this case focus on the issue of credibility rather than reliability. Instead of finding that the complainant’s mental disorder required a closer scrutiny of her testimony, the trial judge appeared to use the disorder as an explanation or excuse for her fragmented recollection of the events.

The trial judge did not consider whether the complainant’s multiple personality disorder made suspect the reliability of her testimony that she did not consent to the alleged incidents of intercourse with the appellant. ….

VI. This Court had a Reasonable Doubt about Whether S.J. Sexually Assaulted M.

[14] The Crown conceded in brief oral submissions that there was no reason for this Court to reject the evidence of the accused. I agree.

[15] The accused was a good witness at trial. He answered all of the questions put to him, by both counsel, very directly, very succinctly, and very clearly. He, without hesitation, made several admissions against his own interest: that he could have easily returned home from dinner with his father in time to sit with and share some drinks with the complainant on the night in question; that it was common for him to drink scotch with the complainant; and that he may very well have drank alcohol with the complainant on the night in question, as just three examples of those admissions.

[16] The accused’s denials were unequivocal and completely unshaken.

[17] I accept the evidence of the accused. On that basis, he had to be acquitted of the offence.

[18] But even if I had not accepted the evidence of the accused and not been left with a reasonable doubt of his guilt because of that evidence, this Court would still have acquitted the accused. I would have concluded that it was unsafe to find the accused guilty because of serious reliability concerns that infect the evidence of the complainant.

[19] It must be observed that:

i. the complainant testified that he lost consciousness while still in the living room;

ii. the complainant testified that he now remembers being brought downstairs, but that memory came to him sometime after the day following the incident;

iii. the complainant testified that, while on the bed in the basement of the residence, he was “very incapacitated” and “in and out of consciousness”;

iv. the complainant testified that he first started having any memories of anything that happened with the accused several days, or even weeks or months, after the date of the incident;

v. the complainant testified he did not know “firmly” what happened until late 2016 or early 2017 and only after talking with his partner and that person disclosing to him their own sexual abuse;

vi. the complainant testified that he was consuming cocaine and MDMA, on occasion, in 2011; and

vii. the complainant testified that he had no idea what had happened the day after the incident, when he went to the hospital.

[20] I have no doubt that the complainant genuinely and sincerely believes that he was sexually assaulted by the accused. In light of the above, however, I have a reasonable doubt as to whether it, in fact, happened.

[21] These are the reasons why the Court agreed with the Crown’s invitation to find the accused not guilty of the offence.

Conlan J.
Released: February 27, 2025