R. v. J.W., 2020 ONCJ 94

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

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) MANDATORY ORDER ON APPLICATION — 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. . . . 486.6 OFFENCE —

(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. ONTARIO COURT OF JUSTICE CITATION: R. v. J.W. , 2020 ONCJ 94 DATE: 2020 01 30 COURT FILE No.: Brampton 3111 998 17 12930 BETWEEN: HER MAJESTY THE QUEEN — AND — J.W.

Before Justice G.P. Renwick Heard on 29 and 30 January 2020 Reasons for Judgment released on 30 January 2020 K. Slate.................................................................................................. counsel for the Crown M. LeBlanc............................................................................ counsel for the defendant J.W. RENWICK J.: INTRODUCTION [1] The Defendant is charged in a two-count Information that he committed a sexual assault and an assault upon his aunt, L.D. Theprosecution proceeded summarily.

The court heard from two prosecution witnesses and the Defendant during this brief trial. [2] The Defendant pleaded guilty upon his arraignment to simple assault (count #2). [3] The only issue I have to determine is whether it is proven beyond a reasonable doubt that the Defendant sexually assaulted L.D.Ancillary to that, is the legal question of whether the Defendant’s admission of an assault forms the basis of the sexual assault allegation,or whether it is proven beyond a reasonable doubt that the Defendant committed two different assaults, one of which is allegedly sexualin nature.

GENERAL LEGAL PRINCIPLES [4] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt.Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial unlessand until the court is satisfied that the charge has been proven beyond a reasonable doubt. The prosecution’s burden of proof never shiftsduring the trial.

In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution hasproven any single element of the offences charged beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that theDefendant committed either or both offences, he will be acquitted of one or both of these charges. [5] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logicallyderives from the evidence or the lack of evidence adduced during the trial.

While likely or even probable guilt is not enough to meet thecriminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there isno mathematical precision to proof beyond a reasonable doubt but it lies much closer to absolute certainty than to proof on a balance ofprobabilities.[1] If after considering all of the admissible evidence I am sure that the Defendant committed an alleged offence I mustconvict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt.

Likewise, if I am not sure, then I have areasonable doubt and an acquittal must follow. [6] This case involves conflicting evidence and credibility assessments. In assessing witness credibility and reliability I have takeninto account the general capacity of the witness to make their observations, to remember what they perceived, and their ability toaccurately testify to their recollections. It is also important to determine whether the witness was trying to tell the truth and whether ornot the witness was sincere, candid, biased, reticent, and/or evasive.

A trier of fact is entitled to accept some, none, or all of what awitness says while testifying. [7] A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said in thewitness box and what the witness has said on other occasions. I must also assess what is testified to in the context of all of the evidence inthe case and not on an isolated basis.

This is true for any inconsistencies and whether these are inconsequential or significant to the case.If the inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony. [8] Given the conflicting evidence in this case, I must apply the framework provided by the Supreme Court of Canada in R. v. W.(D.), (SCC), [1991] S.C.J. No. 26, as it is now understood. I rely heavily upon the

article written by Paciocco J.A.entitled, “Doubt about Doubt: Coping with W.(D.) And Credibility Assessment” found at 2017 22 Canadian Criminal Law Review 31.Justice Paciocco breaks down the W.(D.) principles into 5 propositions: (

i) I cannot properly resolve this case by simply deciding which conflicting version of events is preferred;

(ii) If I believe evidence that is inconsistent with the guilt of the Defendant, I cannot convict the Defendant; (iii) Even if I do not entirely believe the evidence inconsistent with the guilt of the Defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt and the Defendant must be acquitted; (iv) Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and (

v) Even where I entirely disbelieve evidence inconsistent with guilt, the Defendant should not be convicted unless the evidence that is given credit proves the Defendant’s guilt beyond a reasonable doubt. [ 9 ] In the next part, I will outline some of the evidence and provide an assessment of the testimony, with references to specific pieces of the evidence.

Although I may not refer to all of what a witness said, I listened to each witness carefully, I have taken detailed notes, and I have assessed the testimony of each witness for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and their ability to observe, recall, and communicate. [ 10 ] I do not propose to recapitulate all of the evidence received during this trial.

Suffice it to note that I have used ample and many opportunities during the trial and subsequent to the completion of the submissions to review my notes, listen to parts of the digital recordings of the proceedings, and to review the single exhibit. I have thoroughly reviewed the evidence in this case, and I will only discuss parts of the evidence where they serve to underscore my findings. Lastly, I have come to no conclusions about any of the testimony I heard until all of the closing submissions were made and my review of the evidence was complete. EVIDENCE AND FINDINGS [ 11 ] M.S. testified first.

He explained how it was that he observed some of the interaction between his long-time girlfriend (now fiancée), L.D., and the Defendant, and his involvement in the incident between them. [ 12 ] Overall, I found Mr. S. to be a mostly reliable historian, with minor concerns about his neutrality. There were some inconsistencies between what Mr. S. told the police and the evidence he gave. Parts of his evidence seemed to dove-tail with the complainant’s in an unnatural way (for instance, the belief that the Defendant was possibly going to show the complainant some “wood working” in the basement).

M.S. was in a good position to make his observations. He admitted having a criminal record and contrary to the Defendant’s testimony of a single punch, he admitted having punched the Defendant twice to have him release his grip on the complainant’s pony-tail. Much of the testimony of M.S. was credible, plausible, and reasonable. [ 13 ] L.D. testified in a very forceful way. Each answer she gave while testifying was punctuated with emphasis. I find that this feature of her demeanor was unnatural.

I had difficulty with an inconsistency in L.D.’s evidence respecting how she testified that the Defendant’s behaviour in the boiler room was obviously inappropriate, but when she spoke to police, she initially said that she was willing to give the Defendant the benefit of the doubt, in terms of a possible medical concern or question. Also, I found the complainant’s behaviour at the time (her use of a “soft” voice to express how inappropriate the Defendant was behaving), at odds with her professed shock.

Apparently, L.D. was in no hurry to leave the house, to notify M.S. of what had just taken place, or to distance herself once the Defendant followed her into the kitchen. That said, the reactions or behaviour of complainants to unwanted sexual encounters are varied and there is no such thing as a “normal” or “typical” reaction. [ 14 ] The Defendant was not a believable witness. His evidence lacks any semblance of common sense or plausibility. I have great problems accepting most of his evidence, except respecting the force he used in the kitchen.

I need not resolve whether or not L.D. had ever previously molested the Defendant. I am unable to determine that issue on the basis of the evidence taken before me. [ 15 ] I have significant doubts about the professed motivations of the Defendant on the day of the incident. I find that his self-exposure and genital fondling for the purpose of creating a dialogue about his aunt’s prior alleged misconduct is far-fetched. The Defendant’s body betrayed him: it revealed sexual arousal rather than a new-found courage to confront his alleged abuser.

The Defendant was admittedly under the influence of two medicinal substances and I accept that his judgment was impaired, but only in the sense that his inhibitions were relaxed. [ 16 ] As between the parties, there is no dispute that the Defendant assaulted L.D. when he grabbed her hair in the kitchen. At issue, is

the length, the context, and the significance of that assault. [ 17 ] I find that the Defendant did not hold onto the complainant’s pony-tail until he was punched twice by M.S. I find that the Defendant did not pull L.D. by her hair toward his waist. I find that the Defendant did not say “give me lip” in the kitchen. I have resolved these issues in the Defendant’s favour, because I accept all of his evidence on these points, and I do not accept what L.D. and M.S. said as completely accurate in respect of the force used, its duration, and the words spoken by the Defendant at the time.

ANALYSIS [ 18 ] “Sexual assault” is…an act of force in circumstances of sexuality as that can be seen in the circumstances.” [2] In this case, the circumstances of the assault in the kitchen occur very shortly in time after the Defendant had exposed his penis. He says he was rubbing his penis to simulate the prior molestation. The Defendant admits that he said, “give me lip” in the boiler room.

The complainant did not see the Defendant touching his penis, but it is clear on the evidence that the Defendant’s penis became briefly exposed to his aunt, it was at least “partially” erect (according to the Defendant), his inhibitions were lowered by the consumption of medicinal drugs, and he said, “give me lip” to her at that time. [ 19 ] I find that a reasonable observer would conclude that these circumstances were sexual in nature. Once the Defendant used the expression, “give me lip,” L.D. no longer had any doubts about the nature of the interaction as a possible medical issue.

She believed that the encounter was a sexual proposition. Hers remains a reasonable

interpretation of all of the circumstances, including the semi-private nature of the location, away from the complainant’s boyfriend. [ 20 ] Even an assault, which itself is not sexual, may ground a finding of sexual assault. In R. v. Higginbottom , [3] the Ontario Court of Appeal found that a punch in the face after the complainant refused an offer of money for oral sex was “sexual in nature.” [ 21 ] The brief break in time until the Defendant grabbed the complainant’s hair in the kitchen did not significantly alter the interaction or remove the sexual nature of the continued event.

I find that the Defendant’s application of force (hair pulling) in these circumstances was reasonably proximate (in terms of timing and location) to the boiler room incident, such that a reasonable person would consider this to be one continuing transaction. [ 22 ] Sexual assault does not require proof of an improper or ulterior purpose. [4] I need not resolve the Defendant’s actual intent when he pulled the complainant’s hair, because sexual assault is a crime of general intent. [5] [ 23 ] Even accepting the Defendant’s evidence that he was “angry” and “frustrated” that his aunt would not discuss their alleged history, I am not left in any doubt that the Defendant intended to apply force to the complainant, in circumstances that were sexual in nature.

Were I to accept the Defendant’s purported motive for the hair-pulling (to express his anger, to confront his aunt about alleged prior sexual abuse), the result would be the same. The Defendant intended to apply force to the complainant. He did so in the context of a sexualized confrontation, where the Defendant became sexually aroused. He used an ambiguous expression which could suggest that he wanted oral sexual pleasure.

In the context of the entire interaction with the complainant that day, I am not left in any reasonable doubt that the Defendant sexually assaulted L.D. when he grabbed her hair in the kitchen. [ 24 ] Assault is an included offence in sexual assault. The Defendant pleaded guilty to assault. I find that the Defendant’s guilty plea reflects his acknowledgement that he willfully applied non-consensual force to the complainant in the kitchen. In view of my factual findings, I cannot accept the Defendant’s guilty plea to simple assault.

CONCLUSION [ 25 ] For these reasons, I find the Defendant guilty of count #1 on the Information, sexual assault upon L.D., and not guilty of the assault alleged in count #2. Released: 30 January 2020

Justice G. Paul Renwick