R. v. N.C., 2018 ONCJ 442

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the con​sequences of failure to comply with these provisions, states as follows: 138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. N.C. , 2018 ONCJ 442 DATE: 2018 06 27 COURT FILE No.: 17-Y073 BETWEEN: HER MAJESTY THE QUEEN — AND — N.C. Before Justice Angela L. McLeod Heard on June 21, 2018 Reasons for Judgment released on June 27, 2018

Mr. Doug Kasko.................................................................................. counsel for the Crown Mr. Ben Pritchard................................................................. counsel for the accused N.C. McLeod J.: OVERVIEW [ 1 ] N.C. is a young person, who was tried before me on a three count information. It is alleged that he sexually assaulted S.J., and that in doing so he breached the keep the peace and be of good behaviour conditions of two separate probation orders. [ 2 ] The trial was short and focused. The Crown called two witnesses; S.J. and her boyfriend J.W.

The defence called J.W.’s older sister, M.W. [ 3 ] The case involves a common occurrence; teenagers getting together to party and drink to excess. On the date in question, N.C. was celebrating his 17 th birthday. A party was held at the home of J.W. and the guest list included: N.C. and his girlfriend, S.J. and J. W. as well as the older female siblings of J.W. and a male cousin. THE EVIDENCE OF S.J. [ 4 ] On August 31, 2017, S.J. was 17 years old. She was dating J.W., who was also 17 years old. J.W. was best friends with the accused, N.C. S.J. had known N.C. for about 2 years.

All of the teenagers attended the same high school. [ 5 ] The evening began around 10 pm, when J.W. drove everyone to his father’s house. Bottles of tequila and Hennessey were obtained. Everyone was drinking except J.W.’s older sisters M.W. and A.W. [ 6 ] S.J. testified that she drank half of the 26 ounce bottle of tequila as well as some shots of the Hennessey. Both were drank straight, without mix.

By her own accord, S.J. was a moderately experienced drinker, who drank on average about once per week, and who said that it was pretty common for her to drink half a bottle at a time. [ 7 ] The group went for a walk. Along the way, the impact of the alcohol began to take effect. S.J. felt light headed and couldn’t walk a straight path. J.W. needed to carry S.J. back home. S.J. has a memory gap beginning from the walk back until she was being carried down the stairs to the bedroom of J.W. She remembers being placed upon the bed, and that J.W. stayed with her for about 20 minutes.

She was ‘in and out’ during that time frame. Her memory consists of ‘bits and pieces’. [ 8 ] After the 20 minutes, J.W. left the room and could be heard speaking with the accused, N.C. out in the hallway. S.J. overheard J.W. tell N.C. that he was going to collect wood for the campfire and would be back in 25 minutes or so. [ 9 ] S.J. next remembers N.C. coming into the bedroom and asking if she was feeling sick. She recalls saying, “I don’t know”, and N.C. leaving the room to bring her a bucket. The bucket was placed next to the bed on the floor.

In cross examination, she testified that she wasn’t certain if N.C. had brought the bucket, just that the door moved and the bucket was beside the bed. The assault began immediately thereafter. [ 10 ] S.J. recalls that N.C. kissed her on the mouth and she moved her head in the opposite direction. She felt upset. N.C. then grabbed her breast and she tried to push him away. N.C. pushed his fingers into her vagina, underneath her clothes. S.J. told him to stop. He placed his hand over her mouth.

She felt very upset and distressed at this point. [ 11 ] N.C. then moved his hand off her mouth and grabbed the back of her hair, and pulled down his pants. N.C. placed his penis inside S.J’s mouth. His penis was erect. She used her hand to push his hips and she fell back onto the bed. S.J. testified that N.C. ‘probably did this 3-5 times’.

In between inserting his penis into her mouth, N.C, would digitally penetrate her vagina and grab her breast and place his hand over her mouth. [ 12 ] At one point, N.C. just stopped, went out of the room and checked on his girlfriend, who was sitting on steps a mere 10 feet away from the bedroom door. S.J. fixed her shirt, and covered herself with a blanket. She testified that N.C. returned to the bedroom and pushed off the blanket and grabbed her breasts.

She recounted that she probably told him ‘no’ fifteen times. [ 13 ] At one point, N.C. left the room and then brought his girlfriend into the bedroom, and placed her on the bed next to S.J. N.C. laid down on the outside of the bed, next to his girlfriend. The girlfriend was a few years younger and was intoxicated. She was upset. S.J. doesn’t remember what the girlfriend said to her, but she replied that it ‘was alright’. After 5 minutes, both N.C. and his girlfriend left the room. [ 14 ] S.J. was alone in the bedroom for about 5-10 minutes before J.W. and another female came in.

When J.W. touched her she freaked out. She told him to not to touch her. She testified that the effects of the alcohol were wearing off and she tried to roll away. J.W. identified himself, and she immediately told him that N.C. had touched her. She was crying. [ 15 ] The Crown brought an uncontested application pursuant to s. 715.1. S.J. adopted the statement. A transcript of an audio-video recorded statement made by S.J. on September 1, 2017, was filed as an exhibit. In the statement S.J. told the police:

(1) Her level of intoxication was a 10/10. She had never drank tequila before;

(2) During the walk, N.C., was grabbing her ‘ass’ and J.W. got mad and told him to stop it;

(3) When N.C. first came into the bedroom J.W. asked her if she was going to throw up, and then grabbed a bucket and placed it next to the bed;

(4) The pattern of grabbing her hair and placing his penis inside her mouth was repeated ‘probably like 5 to 6 times’, the first time he was in the room, and ‘probably only 3 to 4 times’ the second time he was in the room;

(5) After she disclosed to J.W. he went outside to confront N.C.;

(6) She was concerned for J.W.’s younger siblings who had woken, and so she took them into the bathroom with her;

(7) J.W.’s sister took the younger siblings back to their beds and then helped S.J. return to J.W.’s bedroom to lay down;

(8) She then fell asleep;

(9) She woke up when the police arrived, to drive N.C.’s girlfriend home;

(10) She drove into town with J.W. and met up with N.C’s girlfriend’s mother in order to give her some of the girlfriend’s belongings;

(11) She went to Macdonald’s to eat and then called her brother, who is a police officer. He advised her to attend at the hospital. She said that because she had already eaten and drank, the hospital staff told her that there wouldn’t be any evidence to collect. She attended at the hospital between 3 and 4 pm;

(12) She drove with J.W. back to his house, and then he drove her home. [ 16 ] In cross examination, S.J. testified that although she wears glasses, and needs glasses to see, she was not wearing her glasses on the night in question. [ 17 ] She recalled that there was no natural light in the bedroom, and that the ceiling light was off inside the room. The only source of lighting was that which flowed into the room from the hallway. She never clearly saw the face of her assailant. She only saw the outline of the person, as well as the skin colour and hair colour.

Both J.W. and N.C. have similar skin and hair colour, but J.W. has facial hair. A still shot from the audio-video statement made by J.W. shortly after the incident was filed as an exhibit and depicts J.W. with facial hair. J.W. testified at trial and sported a full beard. [ 18 ] She recalled that after N.C. brought her the bucket, and within 15 seconds or so, he began to assault her. [ 19 ] S.J. did not call the police. She did not relay the events of the night to the police when they were on scene. She was aware that they were present, but stayed in bed because she was ‘fairly disoriented’.

THE EVIDENCE OF J.W. [ 20 ] J.W. and N.C. have been friends since childhood. They grew up together. [ 21 ] J.W. confirmed that S.J. started out on the walk doing well, but that by the end of the walk he had to carry her home. He first took her to the campfire and placed her in a chair. She began to throw up, so he laid her on a blanket beside the fire. Once she had stopped throwing up, he carried her to his bedroom. [ 22 ] J.W. asked her if she needed anything, and then got her a bucket and stayed with her for about 10 minutes. Eventually, he left the bedroom and rejoined the party outside.

He went in and out of the bedroom regularly in order to check on S.J. When the firewood ran out, he went with everyone except S.J., N.C. and N.C.’s girlfriend on a walk to gather more wood. He was gone for about 30 minutes. [ 23 ] When he returned to the bedroom, he passed N.C. and his girlfriend laying on a mattress where they were supposed to be sleeping. S.J. was crying and hyperventilating. He asked her what was wrong. He tried to touch her to comfort her and she jumped across the bed. [ 24 ] After 5 minutes of trying to figure out what had happened, he left the room to confront N.C.

After the police arrived, they asked J.W. to give N.C. a ride home. He agreed. He did not tell the police that S.J. was alleging a sexual assault. [ 25 ] On the night in question, J.W. weighed approximately 225lbs, and N.C. weighed approximately 270lbs. THE EVIDENCE OF M.W. [ 26 ] M.W. did not consume any alcohol at the party. She was sober. [ 27 ] She described S.J. as being disoriented and confused, she was vomiting. S.J. was unable to tell M.W. who had been in the room with her. In cross examination, S.J. testified that she was never confused as to who was in the room with her.

POSITION OF THE PARTIES [ 28 ] The Crown submits that there were only two males at the house when J.W. went to get firewood; his father, who was asleep upstairs and who had taken sleeping pills prior to going to bed, and N.C.

[29] S.J. was steadfast in her belief that N.C. had been the person who sexually assaulted her. She was consistent in her examinationin chief and cross examination. [30] The defence submits that while S.J. may be steadfast in her evidence, and perhaps even credible, her evidence is not reliablegiven the amount of alcohol that she had consumed.

This, coupled with the poor lighting conditions, and the external contradictionsprovided by J.W., should raise a doubt. [31] The defence also highlights that S.J. expressed uncertainty at the time she spoke with M.W. about the identity of her assailant,and that no one raised the concerns with the police who were in attendance. THE LAW The assessment of credibility and reliability [32] Credibility and reliability are not one in the same, and are assessed differently.

A witness can be credible but not reliable.Credibility has to do with a witness's veracity; reliability has to do with the accuracy of the witness's testimony. Accuracy engagesconsideration of the witness's ability to accurately i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence onan issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: acredible witness may give unreliable evidence: R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514, at 526 (C.A.). R.v. H.C., 2009 ONCA 56 , [2009] O.J.

No. 214. [33] A trial judge’s responsibility is to move beyond the assessment of the credibility of a witness. “The issue is not merely whetherthe complainant sincerely believes her evidence to be true; it is also whether this evidence is reliable. Accordingly, her demeanour andcredibility are not the only issues. The reliability of the evidence is what is paramount.” R. v. Norman (1993), (ONCA), 16 O.R. (3d) 295 (Ont. C.A.) at para. 47. [34] Alcohol consumption and the resultant level of intoxication may affect the reliability of a witness’ evidence. It is a question ofthe amount and degree of each.

As noted in R. v. Wardle, [2015] O.J. No. 3517 para. 22, “the assessment of the degree of thecomplainant's intoxication clearly goes to the reliability of his evidence, as it is an issue that is fundamental to the complainant's ability toperceive events, and hence, to the accuracy of his account.” ANALYSIS OF THE CREDIBILITY OF S.J. [35] I found S.J. to a credible witness. She was unshaken in cross examination, and was consistent with her audio video statementmade on September 1, 2017. She was steadfast in her belief that N.C. was the person who sexually assaulted her.

She was honest abouther level of intoxication, and her waxing and waning recollection of the night in question. She was honest about her experience as adrinker. She presented as calm and without malice. Her recounting of the events in question had sufficient detail to create a ring of truthand were logical. ANALYSIS OF THE RELIABLITY OF S.J. [36] As noted above, reliability is founded in a witness’ ability to observe, recall and recount. I will address each individually:

(1) Ability to observe (to see, to hear and to perceive): (

a) S.J. was in a dark room, with little to no light. She could only make out the shape, the skin colour and the hair colour of theperson who assaulted her. She could hear and identify the voices of J.W. and N.C. outside of the bedroom. She distinguished betweenN.C. and J.W., noting the latter to have facial hair; (

b) S.J. was not wearing her glasses at the time in question. She is near sighted; (

c) S.J. told M.W. that she was uncertain who had been in the room with her.

(2) Ability to recall (to bring back to one’s own mind, to remember): (

a) S.J. was very intoxicated. By her own accord, she was 10/10. Her memory was greatly affected by the consumption of alcohol; (

b) S.J. could not recall portions of the night, noting significant gaps in her memory; (

c) S.J. did not remember returning to J.W’s home after the walk; she did not recall sitting or laying by the fire and vomiting; she didnot recall that it was actually J.W. who gave her the bucket, and not N.C.; (

d) S.J. was able to recall that J.W. stayed with her in the bedroom for some period of time before returning to the party; (

e) S.J. did not recall that J.W. had returned to the bedroom on a number of instances, in order to check on her; (

f) S.J. was able to recall that J.W. had told N.C. that he was going for firewood and would be about 25 minutes; (

g) S.J. was able to recall with particular detail the sequence of events that took place in the bedroom; (

h) S.J. was unable to remember when the male cousin showed up to the party, only that he was present at the end for sure;

(

i) S.J. stayed in bed when the police attended because she was ‘fairly disoriented’.

(3) Ability to recount (to tell the story to another): (

a) S.J. was able to tell J.W. immediately after the incident that N.C. had touched her; (

b) S.J. was able to tell M.W. that something had happened to her in the bedroom, but not who had touched her; (

c) S.J. was able to tell her brother the morning after the incident; (

d) S.J. was able to tell the police on September 1, 2018, about the allegations; (

e) S.J. was able to testify at the trial about the events in question. CONCLUSION [ 37 ] S.J. was the most drunk that she had ever been. Her memory before the events was affected by alcohol. That being said, she was able to testify with great certainty and with detail about the sexual assault. Her evidence was corroborated by J.W. when he recalled that she had recoiled from his touch and immediately stated that N.C. had touched her; she was crying and hyperventilating.

This piece of evidence was most telling and supportive of her experience of having been assaulted. [ 38 ] Only two of the party guests stayed behind while the others went to look for wood; N.C. and his girlfriend. Only one had a penis. Only one committed a sexual assault.

S.J. was steadfast, from the moment that the assault took place, to telling J.W. within minutes, to speaking with the police and ultimately during her testimony at trial; N.C. was that one person. [ 39 ] I do not find it odd that J.W. agreed to drive N.C. home when the police requested that he do so, and in spite of the fact that he was aware that his best friend has just sexually assaulted his girlfriend. J.W. was under age and had hosted a party for other under aged drinkers.

It is understandable that he might not want to raise any other issue with the police. [ 40 ] I do not find it odd that S.J. did not tell the police that she had been sexually assaulted when they were on scene, as she too was under age and intoxicated. Also, her brother was a police officer and therefore she had another route to making a complaint, in her own time and in her own manner. Whatever her reason, the case law and social science is clear; sexual assault victims do not always react to their trauma in a similar fashion, nor do they respond in a manner that might align with ‘common sense’.

There is no right or wrong way to respond to the trauma of sexual assault. [ 41 ] Ultimately, and in spite of some of the frailties of her memory, I find that I am able to rely upon the testimony of S.J. where her memory is clear and cogent. Her evidence was supported and corroborated by J.W in this area. I am convinced beyond a reasonable doubt that the Crown has carried their burden. As such, I find N.C. guilty on all counts. Released: June 27, 2018 Signed: Justice Angela L. McLeod