R. v. S.J., 2011 ONCJ 27

COURT FILE No.: Toronto Region, Metro North Court DATE: 2011·01·07 Citation: R. v. S.J. , 2011 ONCJ 27 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — S.J. Before Justice Leslie Pringle Heard on January 4-6, 2011 Reasons for Judgment released on January 7, 2011 Ms. S. Reid for the Crown Mr. S. White for the accused S.J. PRINGLE J.: Dangerous Offender Application: Ruling

(1) Proof of Aggravating Fact on Sentence 1. Overview [ 1 ] On January 11, 2010, I found S.J. guilty of 2 counts of criminal harassment, 3 counts of failing to comply with probation and 2 counts of uttering threats in relation to his former domestic partner, C.T., and her daughter, K.T.. The Crown has now brought a dangerous offender application and as part of the hearing, called C.T. to give evidence of a previously unreported sexual assault by S.J. upon her. [ 2 ] In essence, this is an aggravating fact that the Crown seeks to prove on sentencing in relation to S.J.’s behaviour as an alleged dangerous offender.

Pursuant to s.724(3)(e), the prosecutor must establish the existence of an aggravating fact by proof beyond a reasonable doubt. [ 3 ] In relation to this issue the Crown called C.T. as a witness, and S.J. elected to call no evidence.

If believed, C.T.’s evidence clearly makes out a sexual assault, however, the defence submits that her evidence does not amount to credible or reliable proof beyond a reasonable doubt. [ 4 ] The defence raised three general areas of challenge to C.T.’s testimony, including the timing of her report of the allegation; the false certainty with which she presented certain matters in her evidence; and the inherent unbelievability of some of her evidence.

[ 5 ] These issues are legitimate areas of concern to which I have given careful consideration. I agree with Mr. White that unwarranted certainty about even innocuous details by a witness can signal a need for caution about the reliability of their evidence. Moreover, aspects of overstatement may lead to a concern about exaggeration, again undermining the reliability and/or believability of the account as a whole. [ 6 ] However, having examined these issues, I find that for the most part, C.T.’s evidence was credible and reliable. I believed her account of the sexual assault.

Therefore I find that the Crown has proven this fact beyond a reasonable doubt and it can be considered as evidence on the dangerous offender hearing. [ 7 ] Let me explain my reasons for my conclusion. 2.

Summary of the evidence [ 8 ] C.T. testified in examination in chief that she believed it was in July of 2008 that S.J. called her at work and asked her to pick him up and take him to 31 division so that he could turn himself in to police. C.T. explained that there was a warrant out for S.J.’s arrest, and during that week he had been talking to police about turning himself in. At that time, they were not living together. [ 9 ] She testified that she picked him up at his work place between 6 and 6.30 p.m., and they spent some time talking.

He asked her to go to the beer store around 9 p.m. so that he could get some beer, and then she drove to 31 division. Once on Norfinch Drive, he asked her to drive past 31 division and they turned into an area by a building that was behind a hill and some trees so that he could drink his beer. He drank some beer and she had a few sips and eventually she asked him to hurry up because she was tired and wanted to get home.

It was a stormy night, raining and thundering and lightening. [ 10 ] C.T. stated that when she started pressuring S.J. to finish his beer, he said he wasn’t sure if he was going to turn himself in after all. She got upset with him and told him if he wasn’t going to make up his mind, then to just get out of the car. She testified that he then got mad at her, saying that he had no place to go, and pulled her out of the car, saying, “bitch, if I am going to go to jail, then I’m going to have something to remember”.

She described him throwing her to the ground, pinning her down and ripping her jeans off so that the buttons came off and the pants ripped on the inner seam. She was saying stop, but he pulled her pants and underwear down, took out his penis and had intercourse with her.

She stated that she was yelling but he put his hand over her mouth and held her down, then ejaculated inside her. [ 11 ] Afterwards, C.T. testified that she was covered in mud and bawling her eyes out, but he stood up as if nothing had happened and said, “I’m not going to turn myself in, let’s go.” She said that she jumped in her car, locked the doors before he could get in, and then drove home, arriving at 11.30. [ 12 ] C.T. didn’t report the incident to police at the time, nor did she mention it to them or the Crown when S.J. was arrested and prosecuted in relation to later charges against her.

The matter didn’t come to light until the time of her victim impact statement in this case, when C.T. wrote in her statement that she thought the turning point in their relationship was when he raped her on the side of the road in the pouring rain just steps away from 31 division. In the statement she said this incident made her feel used and dirty, as well as stupid for believing that S.J. was going to turn himself in to the police. [ 13 ] Mr.

White conducted a thorough and probing cross-examination of C.T. at this hearing, seeking to have her recall the details of each part of her account, including the initial phone call, the drive to pick him up, the stop at his work place, the stop to get beer, the drive to the police station, the events she alleged behind the building, and her eventual return home. In respect of many issues, C.T. testified that she didn’t remember explicit or exact details, but on some details she responded with apparent certainty. 3. Analysis of Credibility and Reliability

3.1 Timing of the allegation [ 14 ] In relation to the timing of C.T.’s report of this allegation, she said that she told her two daughters about the incident a day or two later when they saw her ripped jeans. They urged her to report it to police, but C.T. testified that she felt S.J. was already in enough trouble, and said that she also felt foolish and ashamed that she had been conned into driving him to the station. She told her daughters she was not going to report it. [ 15 ] Mr.

White submitted that this supposed compassion for S.J. was incredible, particularly in light of the fact that C.T. had in fact cooperated with the police and testified against him later in relation to other matters. Indeed C.T. herself acknowledged that she had many opportunities to have raised the sexual assault with police later, and wasn’t really sure why she didn’t. [ 16 ] I think it is important to consider that in the emotion of this relationship, there was not a lot of logic.

This was a conflicted relationship, to the point that even after he had been convicted of offences against her, she continued to visit him in jail and to have him come back and live with her. In these circumstances, I don’t find it incredible that she told police about some offences, but not others. [ 17 ] Moreover, C.T. said this incident was different than others in their relationship. This one made her feel particularly humiliated and was something that made her feel dirty and used. In relation to this rape, she said she felt foolish and ashamed, because she had believed he would actually turn himself in.

Taking into account her feelings, I don’t find it significant that she didn't tell police about it. [ 18 ] Finally, when she did raise it in her victim impact statement, C.T. explained that she didn’t think it was something that would result in a charge against S.J.. Rather, she thought it was her opportunity to explain how she felt as a victim of his offences. In this context, I don’t find the timing of the allegation was incredible. 3.2 False Certainty [ 19 ] I don’t agree with Mr. White that C.T.’s evidence was filled with examples of false certainty.

Indeed, she often indicated she didn’t recall certain details or couldn’t explicitly remember something or couldn’t be specific about some conversation or other issue. She was sometimes uncertain in her description, for example, she referred to the place where S.J. got the beer as both “the beer store” and then “the liquor store” in examination in chief. But to her, it was the same thing, and in the scheme of things, I find it was a detail of little consequence. [ 20 ] I would also put the detail about whether C.T. went into the beer store or not in the same category of insignificance.

While in examination in chief she said, “I can’t recall if I went in”, and then under cross-examination said she did not go in, this was not an important detail to her and was of little significance to the issues before me. A trier of fact always has to assess whether this kind of inconsistency is material, but I found this one was trivial. [ 21 ] Similarly, although she wasn’t sure about the exact date of the event and assumed it was July or August because it was a hot day, the precise date was not significant.

In general terms, she was able to anchor the date to a hot day before her move to 86 Neptune, which she recalled took place on Hallowe’en in October 2008 while S.J. was in jail. Her recollection of the date caused me no concern. [ 22 ] In her statement to police, and again in her examination in chief, C.T. indicated that the first thing she did when she got home was take a shower. Later, under cross-examination, she testified that when she got home she took her dogs out briefly before showering, because they were barking and it was late and she didn’t want to wake up her landlord, who was an older gentleman.

I didn’t see this as necessarily inconsistent, since it was really just an additional detail such as dropping her purse on the floor. It was also reasonable in light of the late hour and her concerns about the landlord, and she indicated she likely didn’t go to the park because she was dirty after the assault. I did not find this was a matter for concern. [ 23 ] I did share some of Mr. White’s skepticism about C.T.’s late and certain recollection that she put on her turn signal at 31 division, although she didn’t think she drove in.

In fact, she told the police in her video that she did pull into 31 division and this was a clear inconsistency. Similarly, it seemed somewhat unlikely that she had a specific recollection that the time on her TV was 11.34 p.m., when many of the other small details of the evening escaped her. In my view, it’s likely that there was a degree of exaggeration in her

testimony on these topics. [ 24 ] Although these were small points in and of themselves, I agree with Mr. White that this kind of false or exaggerated certainty about even small details should cause the trier of fact to be cautious about the credibility and reliability of a witness. [ 25 ] I was initially concerned that C.T.’s recollection about the buttons on the jeans fell into the same category of false certainty. Her evidence was quite clear and specific about the buttons or rivets on her jeans popping off during the assault, and if she told Det.

Georgeopoulos that it was a zipper, that would amount to a clear inconsistency. In addition, this was an issue that was central to the allegation of a rape, so it was not just a small detail. However, as it turns out, C.T. did not tell the police that it was a zipper, but rather mentioned both buttons and a zipper. While this was somewhat confusing, I have looked at all of the evidence on this point and believe that C.T. genuinely recalled that the jeans had buttons, and still thinks that to this day.

In the end result, there is nothing to suggest she was wrong, and nothing to suggest that her belief was false or exaggerated. 3.3 Inherent Unbelievability [ 26 ] I have already touched on the issues of the turn signal and the time on the TV raised by Mr. White. [ 27 ] In addition he submitted that it was inherently unbelievable that C.T. took her dogs out on her return home, at a time when she said she was muddy and had ripped pants from the assault. However, I found nothing unbelievable about this testimony.

She explained that she was later than usual, the dogs needed to go out to relieve themselves, and she was concerned about her landlord because of the barking. It was dark and she didn’t think she took them to the park, precisely because she was dirty and wanted to shower. This was not illogical to me. [ 28 ] Lastly, the defence submitted that the time-line provided by C.T. was suspect, because she said the whole chain of events took 4 ½ hours, but only provided evidence about one stop at his work place, one stop for beer, and a further stop where the sexual assault took place. Was this unbelievable?

I’m not sure how I could come to that conclusion, since C.T. was not certain how long they spent at his work place or how long they talked in the car outside the beer store. Moreover, I don’t know enough about their relationship to say that talking for hours in a car was illogical or unbelievable – it was certainly an unusual situation where S.J. had been avoiding the police and had been contemplating turning himself into police custody for about a week already, so it’s not implausible that there was a lot of discussion about this decision.

Based on C.T.’s evidence, I cannot find that her description of their evening was inherently incredible. 3.4 Analysis of the Totality of the Evidence [ 29 ] Looking at the totality of C.T.’s evidence, she seemed genuine and candid in her account of what she said took place. In the context of the conflicted relationship between her and S.J., her account of what she said happened was coherent and understandable.

I find no merit to most of the purported inconsistencies or false certainties submitted by the defence. [ 30 ] In respect of the two exaggerations about the turn signal and the time of 11.34, I have considered whether C.T.’s lack of reliability on these points diminished her credibility or reliability in other respects. Although I don’t necessarily believe that she had a clear recollection of her turn signal being on and that the time was precisely 11.34 p.m., I am still entitled to believe the balance of her evidence.

Here, I find these issues were small points, perhaps overstated by her out of frustration during cross-examination. C.T. was not a perfect witness, and she was sometimes inconsistent on the small details I have mentioned. However, overall I found she was a credible witness, and I believed her evidence respecting the sexual assault by S.J.. [ 31 ] At the end of the day, I find the Crown has proved this allegation of a sexual assault beyond a reasonable doubt. Released: January 7, 2011 Signed: “Justice Leslie Pringle”