R. v. J.B., 2017 ONCJ 284

BAN ON PUBLICATION - s. 486.4(1) Ordered by Justice Devlin April 22, 2016 CITATION: R. v. J.B., 2017 ONCJ 284 DATE: April 25, 2017 Information No. 998-16-Y18128 ONTARIO COURT OF JUSTICE YOUTH JUSTICE COURT IN THE MATTER OF the Youth Criminal Justice Act , S.C. 2002, c.1 HER MAJESTY THE QUEEN - and – J.B. ********** BEFORE THE HONOURABLE JUSTICE G. WAKEFIELD , AT THE COURTHOUSE, 150 BOND ST. E., OSHAWA, ONTARIO, ON WEDNESDAY, APRIL 25, 2017 . ********** PROTECTED FROM PUBLICATION BY SECTIONS 110 AND 111 OF THE YOUTH CRIMINAL JUSTICE ACT REASONS FOR JUDGMENT APPEARANCES: B. Guertin Counsel for the Crown. K. Fay Counsel for Mr. J.B. WEDNESDAY, APRIL 16, 2017 REASONS FOR JUDGMENT

WAKEFIELD J . (Orally) J.B. stands charged that on the 6 th day of March 2016, he both sexually assaulted and unlawfully confined the complainant. The Crown case consisted of the complainant, her then friend who attended the party with her, P.C. Buchanan and P.C. Berentschot. As well, SOCO photos were filed on consent depicting the bedroom in which the assault was alleged to have occurred.

Also filed on consent was the Centre of Forensic Sciences reports confirming that the defendant’s DNA could not be excluded from the sample obtained from the complainant’s genitalia, together with another report confirming the complainant’s urine sample showed an ethanol reading of 26 mg./100 ml. The defence called two witnesses from the party: the defendant’s cousin, C.Z., who hosted the party, and their friend, V.S.. The complainant testified about being invited to the residential party being held by his cousin, C.Z.. She went there with her friend, S.C.. Her father drove her and Ms.

S.C. to the party, arriving between nine and ten o’clock, without having had anything alcoholic before arriving. She described the party being in full swing with drinking and games being enjoyed in the kitchen and the defendant already showing the signs of intoxication. The complainant and her friend were invited to share the alcohol brought by the defendant and did so. The attached garage or mudroom was the smoking area with both tobacco and marijuana being consumed. The defendant was described as continuing to drink and becoming really touchy.

At first the complainant did not do anything but as the touching continued with both her and Ms. S.C., she became uncomfortable with it and increased her distance from him. She expressed that to him. He apologized and they became more comfortable with each other, leading to her sitting on his lap and mutual kissing in at least the garage and possibly the kitchen. He later invited her to go upstairs which she believed would be to talk in private about the way he had been treating her. The defendant was stumbling and, at the top of the stairs, pushed into her causing her to stumble.

She described hitting her head on a doorframe. He then used both of his hands to push her into the bedroom. He then stood in the bedroom doorframe blocking her. She told him to get out of the way and pushed him. He then pushed her back and that push caused her to stumble and fall into a wooden dresser, hitting her head on her right temple. She is dizzy from the head blow, as she described. She recalls the defendant trying to pick her up by her arms and is unsure how far she was able to get. She does not recall any conversation and falling back down.

Her next memory is sitting on the bed with the defendant beside her and each looking at the other. Her next following memory is now being without her pants and the defendant on top of her, naked, and engaged in sexual intercourse with her. She is not able to remember how that occurred as there is a long gap in her memory. She testified to screaming at him to get off of her and to stop what he was doing but he was immovable until he collapsed on top of her, unresponsive to her pleas. She struggled to move him and managed to push him to one side as she left the bed and put on her clothes.

She went downstairs crying, called a friend to pick her up and had a smoke in the garage waiting for her ride. She and Ms. S.C. left together where the friend drove her to another friend’s to whom, after some prodding, she disclosed an assault on her. That friend then returned with the others to the Z. residence with some intention to punish the defendant, which was prevented. The police were also called. The police officers were called to the party scene by the complainant’s friends upon her disclosing the assault.

The officers confirmed a number of people at the party and controlled the scene while awaiting instructions, which ultimately resulted in their entering the residence and arresting the defendant. The officers described the defendant as extremely intoxicated, incoherent, incapable of waking. It took considerable effort for the officers to assist the defendant down the stairs without risking injury to him or to themselves. They found the defendant clad only in underwear, collapsed on the bed in a child’s bedroom.

S.C. is a former friend of the complainant. From that perspective, she is probably the most independent of the witnesses, apart from the attending police officers. She corroborates the complainant’s testimony regarding the level of drinking on their arrival, the alternating boorishness and flirting of the defendant, of the complainant’s extreme emotional distress upon returning downstairs, and of finding the defendant naked on the bed. She also contradicted the complainant as to the volume of the radio in the kitchen. Ms.

S.C. also described the extreme intoxication of the defendant on the bed but not that he was by any means comatose. She described finding and putting on his boxers during which he awoke and talked incoherently, then apparently walked around a bit before returning upstairs prior to her leaving with the complainant. Ms. S.C. was open about the complainant sitting on the defendant’s lap and the pair kissing. She did not describe the complainant as angry at the defendant but rather, distancing herself when the defendant was misbehaving. C.Z. was the 20 year old in charge of this party.

He is a cousin of the defendant and a lifelong friend. That friendship was quite obvious in his testimony as he minimized the level of the defendant’s drinking. Like Ms. V.S., he asserted that the complainant had a boyfriend at the time. While obvious the defence was aware of the allegation the complainant had a boyfriend, this was never actually put to the complainant herself. Mr. C.Z. described the complainant and the defendant as flirting with each other, kissing and her sitting on his lap.

He dismissed the complainant being upset as a result of cheating on her boyfriend and having consumed too much alcohol despite not knowing how much or how little she had consumed. Despite a prodigious consumption of a variety of alcoholic beverages, which in some answers became the reason for not remembering, he was still able to assert memories that assisted his cousin, specifically that there was no complaint regarding the defendant from either the complainant or Ms. S.C..

He described the defendant as not being more drunk than himself, which is clearly inaccurate, but was sufficiently aware to be able to describe the complainant as so drunk as to be slurring her speech and stumbling around. Mr. C.Z.’s demeanour was also an issue for me. He certainly did not appear to be taking these proceedings seriously. Worse was the facial contortions he went through when asked if people were smoking marijuana in the garage before answering, with a smirk, that he wasn’t sure about that. Mr. C.Z. was obvious in his bias towards his cousin and his animus against the complainant.

He was aware in testifying of the impending risk of a lawsuit arising from the night’s party, which also raises my concern as to both his credibility and reliability, but I need not factor that, given the astounding level of alcohol consumption and the manner of his testimony about the party by itself destroying his credibility and reliability. V.S. was 19 at the time of the party and 20 when testifying. She resides on the same street as Mr. C.Z., essentially a lifelong close friend of both Mr. C.Z. and the defendant.

She describes being out for dinner that night with a friend and then arriving at the party between nine and nine-thirty. According to her, she did not believe anyone would be drinking yet as they were still setting up. She said that the complainant and S.C. arrived about 10 to 15 minutes after her arrival. Ms. V.S. had brought her own vodka and consumed around one- quarter of a 26 ouncer between 10 p.m. and midnight, estimating both consumption and times. Ms. V.S. described occasionally chatting with the complainant through the evening and observing the complainant and the defendant interacting with each other.

She saw the complainant on the defendant’s lap several times and acting flirty with each other. Around 1:30 in the morning, Ms. V.S. is sitting on the couch facing the stairs which go up to the second story. She sees the defendant and complainant walking up the stairs hand in hand. Mr. V.S. described herself as smirking at the complainant who smiled back at her. Indeed, she described the complainant smirking a lot through the entire evening.

She apparently knew the complainant well enough to know the complainant had a boyfriend, who was not at this party, and described the complainant as being fine with going up to the bedroom floor with someone not her boyfriend. She described the defendant going up the stairs first with the complainant following him but that her view was obstructed as to anything happening on the stairs. Later in the evening, when the complainant returned downstairs, Ms. V.S. did not recall the complainant being upset or crying at all.

In cross-examination, her testimony began shifting and suggesting she did not recall when questioned as to other details of the evening and later actually reversing herself on a point when Mr. C.Z.’s testimony was put to her. She again denied the complainant crying after returning from upstairs.

Ms. V.S. did assert that due to her training in interpreting body language, taken as part of a Durham College Course towards obtaining ajob in social work, that the complainant did appear different after returning downstairs, which was not surprising to Ms. V.S., given thecomplainant had clearly just cheated on her boyfriend. Ms. V.S.’ capacity for observing body language is clearly suspect given everyother witness contradicted her regarding the complainant’s emotional distress. Throughout Ms. V.S.’ testimony, she looked at the defendant with numerous small smiles.

Her description of the evening wasdemonstrably slanted in favour of minimizing the level of intoxication at the party and exaggerating the level of consensual interactionsbetween the complainant and the defendant when compared to the other witnesses. Her expressed contempt for the complainant waspalpable and shallow with a bias which shattered any reliability or credibility in her testimony unless corroborated. The defence was not in the position to concede whether sexual intercourse took place. Firstly, then I do find as a fact that intercoursetook place without relying upon the complainant’s testimony.

The defendant was discovered naked on the bed. The Centre of ForensicSciences report confirmed the presence of semen in the underwear. The DNA test result does not exclude the defendant’s DNA from thatfound on the genital swab of the complainant. The level of intimacy of the DNA location is a strong foundation for the inference ofsexual activity by the defendant with the complainant without the testimony of the complainant being a factor and I find as a fact thatsexual activity occurred.

Whether that amounted to complete full intercourse would obviously then be dependant on whether the Crownhas met the high standard of proof beyond a reasonable doubt as to the nature of the sexual activity and whether there was lack ofconsent. On those two issues, the Crown’s case rests on the credibility and reliability of the complainant’s testimony as corroborated orcontradicted by the evidence and testimony in the trial.

I have already ruled that the defence witnesses are without any value, except where corroborated elsewhere, and their lack of credibilityand reliability cannot undermine the complainant’s testimony. However, I just also caution myself that the complainant was quite capable of lying to the police when denying using marijuana at theparty and as such, I should review her testimony carefully in light of that falsehood. There are both internal inconsistencies in her testimony and inconsistencies between her testimony and her statement to the police.

I do instruct myself that sexual assault victims do not react the same way, do not disclose in the same manner or with the same timing. I do accept the very real possibility of a push causing someone to be off balance and fall while twisting in order to hit the oppositetemple against the dresser and her description being quite realistic. Given the passage of time and the nature of the allegations, especiallyas to the complainant’s actions after returning downstairs, I am quite content that in these circumstances, resorting to refreshing memoryis not inconsistent with reliability.

The complainant did interact differently with defence counsel than Crown counsel. I am not surprised,given the different roles each counsel plays in questioning a witness. The complainant was not antagonistic to defence counsel but wasclearly wary and by that time of the day, appeared tired. I also note that, in testimony, admitting to smoking marijuana, to holding hands with the defendant when going upstairs, to earlier kissinghim and sitting on his lap, the complainant was essentially admitting facts against her interest and she did not hesitate in acknowledgingthose actions.

I instruct myself that I am assessing a youthful witness testifying to alleged events occurring a year earlier. Her statement to the policewas made after the alleged assault, ambulance examination, an extremely intimate examination at the hospital and minimal, if any, sleepbefore commencing the police statement just before 8 a.m. A then 16 year old in a police station describing a sexual assault afterminimal sleep can hardly be held to a standard of perfection. As set out in R. v. L.O. 2015 ONCA 394 , [2015] O.J.

No. 2956: To the extent that L.F.’s statements were consistent, especially on the central features of the allegations, that consistency could counter,or at least mitigate, the defence claim that L.F. was not credible or reliable because of her many prior inconsistent statements

While this complainant made more than just “one isolated minor inconsistency in a sea of otherwise consistent descriptions of the relevant events”, in the area of core issue she was quite consistent. Even her inconsistencies as to hitting her head on the doorframe or the dresser or both, she was consistent with being blocked from exiting the room by the defendant and within the broken memory of what occurred on the bed. She testified in a remarkably credible manner. As various appellate courts have noted, articulating credibility of a witness is often a challenge.

I found the complainant completely credible when describing the forcible confinement and then her awareness of the sexual intercourse and telling the defendant to stop, which he ignored. Her explanations as to the inconsistencies I also accept, given the nature of the timing involved with the police statement. Her testimony was corroborated by her immediate demeanour on returning downstairs, which I accept as holding probative value of something occurring, which was emotionally devastating, as cited in R v. Mete [1998] O.J. No. 165 .

Ultimately, her consistency on the essential aspects of the allegations and the manner of her testimony have convinced me beyond a reasonable doubt as to her veracity, reliability and credibility. I find as a fact that there was sexual intercourse between the defendant and the complainant and accept her testimony as proof beyond a reasonable doubt that she did not consent.

While I question whether merely and momentarily barring a doorway is sufficient for forcible confinement, given my acceptance of the complainant’s testimony of what occurred in the bedroom, where the barring of the doorway was followed by a push by the defendant at the complainant forcing her back into the room, the totality of those actions, in my view, amount to forcible confinement. Among the many sad aspects to this trial is my certainty that if all the involved adults had acted as adults and been responsible, none of us would be here today, nor would the result be as it is now. Stand up, sir.

I am finding you guilty of both the sexual assault and forcible confinement charges. Have a seat. ... DISCUSSION ABOUT OBTAINING PRE-SENTENCE REPORT ... DISCUSSION SETTING A SENTENCING DATE ... MR. J.B. IS REMANDED OUT OF CUSTODY TO JUNE 23, 2017 AT 9:30 IN COURTROOM 106 FOR SENTENCING FORM 2 Certificate of Transcript Evidence Act, subsection 5(2) I, Maxine Newell, certify that this document is a true and accurate transcript of the recordings of M. Newell in R. v. J.B. in the Ontario Court of Justice held at 150 Bond St.

E., Oshawa, Ontario, taken from Recording number 2811-104-20170426-090502-Y-5-WAKEFIG, which has been certified in Form 1. 1 May, 2017 _______________________________ Maxine Newell, C.C.R.

**Released May 2, 2017