R. v. Ciraco, 2010 ONCJ 623

Citation: R. v. Ciraco , 2010 ONCJ 623 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — FRANCESCO CIRACO Before Justice D. P. Cole Heard on August 30, October 14, 2010 Reasons for Judgment released on December 17, 2010 M. Waby .................................................................................................................. for the Crown W. Markle ............................................................................... for the accused Francesco Ciraco COLE J.: [ 1 ] The accused stands charged that on Friday April 24, 2009, he committed a sexual assault on L.

H., a fellow teacher at the elementary school where both had been educators on staff for about a decade. [ 2 ] As the evidence unfolded in this case, it was entirely clear that both complainant and accused are very conscientious teachers who would meet most days to talk about individual students, athletic programs that they coached, or incidental school issues.

These discussions frequently took place in the complainant’s classroom in the mornings, before students were allowed into the school building. [ 3 ] Both testified that over the course of (approximately) the previous six years the accused developed a pattern of sometimes kissing the complainant on the cheek when they met. This would occasionally be accompanied by words to the effect that the accused found the complainant “beautiful”. The complainant testified that she was not particularly concerned with either of these behaviours, because “he does this to females”.

I inferred that she slightly disapproved this pattern of behaviour, but that she was prepared to tolerate or ignore it because she generally enjoyed Mr. Ciraco’s company and his professionalism. I also inferred that she had cautioned the accused on several occasions about not being too familiar – my words, not hers. [ 4 ] I should add that both the complainant and the accused were entirely clear that at no time was there any romantic relationship between them. [1] [ 5 ] At approximately 11:10 that morning both found themselves on the school elevator. Nobody else was on the elevator.

Both agree that there was physical contact between them during the approximately ten seconds it took for the cab to travel from the ground floor to the third floor. Both agree that he kissed her on the cheek and told her she was beautiful. Both agree that he hugged her briefly. The accused says that he did no more than she had consented to have him do on numerous previous occasions.

On his evidence, when she left the elevator upon its arrival at the third floor, he wished her “a good lunch” as he went one way and she went the other. [ 6 ] L.H. testified that if all that had happened was a kiss, a hug and the comment that she was beautiful, she would not have been at all troubled, “as this didn’t seem to be out of the norm [for him]”. However, she said that in the course of their physical contact the accused then went on to violate her sexual integrity by touching her inappropriately.

More specifically, she asserted that the accused bent down and kissed (or, to use her word, “pecked”) the exposed upper portion of her right breast (she was wearing a V-neck tank top). He then “cupped” her right breast with his left hand, while putting his right arm around her body, pulling her towards him, so that he could in turn touch (or “cup”) her left buttock with his right hand. As soon as she realized that the accused’s touching exceeded the extent of anything to which she had ever previously consented, she pushed his shoulders violently with both hands and said “get the fuck off me”.

When the elevator doors opened she walked quickly away. On her evidence, neither of them said anything as they parted. [ 7 ] L.H. testified that she was “shocked [and] felt numb” by what had just happened. She could not say where she went immediately after leaving the elevator. At approximately 11:25 she found herself in the second-floor staff room, where she briefly watched a video on a video camera in anticipation of a school assembly to be held that afternoon.

One of the people in the staff room was Franco (Frank) Primomo, one of three colleagues with whom she had previously arranged to go to lunch so they could discuss the business of the school’s “Lungs for Life” committee. She asked him to arrange to have the other members of the committee meet her in a stairwell as she had to return the camera on which she had watched the video to another teacher (not the accused). She set off to climb the stairs, but saw the accused at the top of the stairs holding the door open. This made her feel “scared, shaking and nervous”.

She testified both in chief and in cross-examination that she could not recall whether any words were said between them or how she came to dispose of the camera she was carrying.

[ 8 ] The accused’s version of this interaction was that he noticed the complainant in the stairwell some five minutes after they had been on the elevator together. She asked him if he could see whether student F. was bringing the camera.

He found student F., told him his teacher was waiting for the camera, went back to the stairwell and called down to the complainant that the student was on his way down to her. [ 9 ] Though there are some obvious differences between these two versions, since counsel neither made anything of them in their presentation of evidence nor in their submissions, I shall follow counsel’s lead and not read anything into the differences.

However, because defence counsel made much of inconsistencies in L.H.’s reporting of what happened in the elevator, it now becomes necessary to describe in detail what she did and did not say to various people, both on that day and on subsequent days. [ 10 ] After this very brief interaction with the accused in the stairwell the complainant then went down the stairs and met the three other “Lungs for Life” committee members with whom she was going out to lunch.

As they walked along the sidewalk to a neighbourhood pub/restaurant she was beside Larry da Silva, while Frank Primomo and James McCarville walked together a few steps ahead. Da Silva immediately noticed something was wrong, and asked her “What’s the matter? Are you okay?”. She testified that she began to tell da Silva what had happened with the accused in the elevator. A few seconds later Primomo similarly noticed that she seemed distraught, and commented “you look awful”.

The complainant began to tell all three of her colleagues what had happened in the elevator, starting while they were walking to the restaurant and continuing while they ordered and ate lunch. [ 11 ] I first caution myself that I must be careful about the use I put to this evidence, as the law is clear the circumstances in which an out of court statement can be used to buttress the consistency of a witness’ evidence are very limited.

In this case, as agreed by counsel, I shall refer to the complainant’s various out of court statements only to bring out inconsistencies the defence relies on to attack her credibility. [ 12 ] Conversely, however, the Ontario Court of Appeal has very recently reiterated that evidence of a complainant’s distraught emotional state is generally admissible to buttress that witness’ credibility ( R. v. J.A. 2010 ONCA 491 (CanLII) , [2010] O.J. No. 2902).

Having considered this carefully over several weeks of reflection, I am entirely satisfied that this is an inference that I may rationally and safely make in the circumstances of this case. [ 13 ] Da Silva testified that when he and L.H. were walking beside one another on the way to the restaurant he immediately noticed that she “seemed upset [and] her face was pale”. He said that she told him the accused had kissed her cheek and her chest, and that he had “grabbed her backside”. She continued to repeat what had happened to her during lunch.

He said that he counselled L.H. to tell the accused to leave her alone. [ 14 ] Though he seemed uncertain whether he first heard her allegation as they were walking to the restaurant or as they were sitting over lunch, Primomo largely confirmed da Silva’s evidence. However, as part of an attack on his ability to recall, he was cross- examined about two aspects of his statement given to the police as part of the investigation.

First, while in his evidence in chief he said that L.H. had said that the accused kissed her on the cheek, his statement to the police only refers to the accused having “kissed her on the chest” (Exhibit 4, p. 5, lines 17-18; p. 7, lines 21-22).

While counsel was correct to point out this inconsistency in Primomo’s evidence, I do not think that much turns on it. [ 15 ] More importantly, while in his evidence in chief Primomo testified that L.H. “seemed pale, very distraught and upset”, he was confronted with his police statement in which he had said that just before the subject matter of what had happened in the elevator was raised in the restaurant: “[w]e were talking – at first, we were all laughing, talking about things that – you know in school, and… stuff like that” (Exhibit 4, p. 5, lines 10-14).

Furthermore, he had told the police that when L.H. described what had happened “at first, I thought it [2] was a – kind of, somewhere smiling and – but then she – her face turned serious and said, ‘No. no. This really happened’” (Exhibit 4, p. 5, lines 18-21). Though in cross-examination Primomo attempted to explain that he was the one who was giggling, not the others, I agree that this contradiction to some extent affects my assessment of this witness’ ability to recall.

Furthermore, Primomo told the police he was aware from the complainant that on previous occasions “Francesco would kiss her on the cheek, hold her hand, touch her…leg, things like that” (Exhibit 4, p. 10, lines 22-23), but that she would “giggle” as she described such touchings.

However, since this last issue was not substantially developed in submissions, once again, I do not think much turns on it. [ 16 ] In his submissions defence counsel invites me to infer that if the complainant was laughing in the restaurant, this raises the possibility that she was not serious about her allegations about what had happened in the elevator i.e. that what occurred in the elevator was consensual. If da Silva and McCarville had said that she was laughing or giggling, I might have been prepared to make the inference that defence counsel wishes me to do.

But I have no note that this was even put to either of them. In fact, their evidence was just the reverse. I have already described what da Silva had to say about her demeanour; McCarville’s evidence was that in the restaurant she was “flustered, pale and upset”. [ 17 ] Accepting for a moment that Primomo was right that L.H. was giggling in the restaurant, I make one other observation that I think accords with human experience, that being that many people – even mature adults - find discussions of sexual activity and sexual behaviour quite embarrassing, and tend to respond by grinning or giggling inappropriately.

If this did happen - which I doubt – I do not see the complainant’s behaviour as affording evidence either that she had entirely made it up, or that what had happened was no different from what had happened with the accused on previous occasions, to which she had consented. [ 18 ] McCarville (who described himself as a “very close friend” of the complainant) said something in evidence that neither da Silva nor Primomo remembered, namely that L.H.’s response to the accused’s advances was to “slap him away” and to ask him “what the fuck do you think you are doing?” On his evidence, she may have used the word “groping” to describe how the accused touched her; once again, neither da Silva nor Primomo used this term. [ 19 ] To sum up to this point in the narrative, I do not conclude that any of the supposed inconsistencies in the version provided by the complainant either on the way to or in the restaurant negatively affect her credibility to any substantial extent.

Similarly, I do not find that one witness’ possible evidence of her described demeanour gives any cause for concern that she may not have been taking seriously what she said had just happened in the elevator.

[ 20 ] L. H. returned to her classroom with her students and Educational Assistant. At approximately 12:40 p.m., Mr. Ciraco entered the room and asked L.H. what time the scheduled assembly was going to take place that afternoon. She testified that though his arrival in her class to ask a question such as this was not unusual, in light of what had happened in the elevator she wished to avoid speaking with him, so she simply held up one finger to indicate the time the assembly would start.

More important, she said that she felt so uncomfortable that she considered that she needed to do something right away to stop him from approaching her again. She immediately wrote him a note, which she asked a student to deliver. While she did not make a copy of the note (so it was not formally produced in evidence), it is clear that the exact content of what was written is not significant, because both the complainant and the [now] accused are in agreement as to its tenor.

Both agree that she wrote that she felt upset and violated, that she did not want him to touch her, that she did not feel comfortable being in his presence, and that she did not want further contact with him. [ 21 ] The complainant then accompanied her students to the assembly. Because the accused taught a class of students who were excused from attendance at the assembly, there was no requirement for him to be there. However, he soon came in and sat close to the complainant throughout the assembly, though both agree that no words were exchanged.

After the assembly was over L.H. followed her class outside for recess. I do not know whether this was one of her duties or whether she deliberately volunteered to go outside with her students to avoid the possibility of contact with the accused. She testified that when she saw him enter the playground and approach within six feet, she surrounded herself with students to deter him from “lingering around me”.

Eventually he came up to her in the playground; he said that he had received her note, that henceforth he would not touch her, and that he would keep his hands in his pockets – otherwise he “wouldn’t be able to control himself”. I shall later describe and analyze the accused’s version of this conversation.

For the time being, it will suffice to say that in his evidence he accepted all of what she said as accurate except for the remark that he might not be able to control himself. [ 22 ] L.H. testified that in light of what had happened that morning, this reference to the accused not being able to control himself made her particularly nervous. Her concerns were heightened even further when he said “there’s something on your sweater, but I won’t touch you”, so she walked over to da Silva, who happened to be in the playground.

Da Silva recalls her speaking with her in the playground, though of course the content of what she said to him is not admissible to buttress her credibility.

Similarly, the content of a conversation L.H. had later that afternoon with McCarville is not admissible in evidence. [ 23 ] Because much of the thrust of the defence is based on the notion that the complainant only went to the police to complain several days later – and only after she realized that her efforts to have the accused removed from the school by invoking various internal dispute resolution or discipline mechanisms had failed – I think it is important to mention that the complainant’s husband was involved in a hockey tournament that weekend.

The incident in the elevator had occurred on Friday morning, and the complainant testified that it was not until Saturday evening that she was able to discuss the matter with her husband, and to have his assistance in deciding what she might do. As a result of that conversation the complainant’s husband called the [now] accused the following day. Nothing turns on what the accused said to the husband, but Mr.

Ciraco agreed in his evidence that the husband had made it very clear to him that he should “stay away from her as she was upset”. [ 24 ] I find it significant that despite the complainant’s note telling him to stay away from her, despite her obvious efforts to avoid him at the assembly and in the playground, and, above all, despite this Sunday telephone call from her husband reiterating that he was not to have dealings with her, virtually as soon as L.H. arrived at the school the following morning (Monday) the accused entered her classroom.

In my judgment, at the very least this is clear evidence of a person who does not apparently respect or grasp (or want to grasp) that boundaries people set up are to be observed and maintained. Of course the accused attempts – as he must – to neutralize this interaction by saying that he merely approached L.H. in order to apologize for upsetting her. But I find that his words expressed in his evidence in chief are most instructive. As I have it in my notes, he said that he told her “L. I’m sorry about Friday. I’m sorry”.

Crown counsel of course seized on this in his cross-examination of the accused, asking if he was unaware that he had done something improper, why this phraseology? Why not – something like – “I don’t know what I did to offend you, but if I have done something wrong I apologize”? In light of his exact words – and in light of other evidence to be described later – I infer (as I am entitled to do) that this admission provides quite clear evidence of guilt. [ 25 ] Both the accused and the complainant agree that she did not by words or actions accept his apology. She simply stared at her computer screen until he left.

One would have thought that this, combined with the warnings to desist from contact outlined in the previous paragraph, would have persuaded any rational person to avoid contacting her; if professional business needed to be conducted between the two, that could have been done through a third party. (As she aptly put it in her police interview: “it was not necessary to tell me. He could have passed [a] message along” (Exhibit 2, p. 32, lines 23-24)).

However, the accused testified – and the complainant agreed - that on the following morning (Tuesday April 28), he approached her in the school atrium to give her uniforms (T-shirts) for students involved in a forthcoming cross-country race.

Once again, this seems to me to be the behaviour of a person who does not understand or – more likely - ignores identified boundaries. [ 26 ] L.H. testified that she arrived at the school around 7:50 a.m. to be told by another teacher that the accused was looking for her, which, as described in the previous paragraph, he ultimately did sometime after the children were allowed into the school that morning.

Though both agree that the content of the contact was entirely benign, L.H. explained that, against the backdrop of the accused’s continuing attempts to interact with her, this was the straw that broke the camel’s back, in that its effect was to raise her level of discomfort such that she decided to report what had happened the previous Friday (as well as her ongoing concerns) to her principal Tony Martire, which she did sometime between 12:00-2:00 that afternoon. Both the complainant and Mr. Martire agreed in evidence that she was tearful and emotional during their discussion.

Though I can rely on her demeanour, once again I caution myself that I cannot and should not rely on what she told him as evidence of the truth of the contents. [ 27 ] Defence counsel made much of the fact – as he was certainly entitled to do – that L.H. did not provide Mr. Martire with full details of her allegations. According to Martire’s evidence – which was called as part of the defence case – during their conversation the complainant said words only to the effect that the accused “had kissed or tried to kiss her and patted her on the bum”.

This is important to the defence, because it is the defence submission that, regardless of who she spoke to, full details of her allegations were not disclosed May 1, 2009. It is the defence position that I should reject the complainant’s evidence as contrived, because full disclosure was only made as part of an effort to persuade senior officials to remove the accused from the school. It is the position of the defence that what flows from this that the complainant further exaggerated what had happened when she ultimately went to the police, in order to

persuade the police to take the step of laying a criminal charge, which would likely necessitate officialdom removing the accused from the school. [ 28 ] Martire told L.H. that he would have to take advice from the local Superintendent, because he did not know what protocol should be followed in the case of a complaint of sexual harassment by a teacher towards another teacher.

Before L.H. left him to make his call to the Superintendent, she stressed to him that she felt so uncomfortable that she did not want to the accused to be in the school any longer; nevertheless she wanted the matter to be handled internally. In my judgment, this behaviour provides significant insight into the type of person the complainant is. As will be seen later in these reasons, she had a personal friend who was a police officer, to whom she could have gone immediately. Alternatively, she could herself easily have gone to the police with her complaint.

The fact that she preferred to try to resolve this issue quietly – through her letter to the accused, through her husband’s call to him, through her deliberate “cold shouldering” of the accused, and now through her conversation with Principal Martire - strongly suggests to me that L.H. is a cautious, thoughtful and subtle person. This considerably fortifies her credibility. [ 29 ] Martire spoke with the Superintendent, who told him that L.H. should contact Isolina Varano, the Board’s Conflict Resolution Manager, as she was the official in Human Resources responsible for dealing with sexual harassment issues.

The two spoke that afternoon. According to L.H., Ms. Varano immediately advised her to go to the police, which L.H. said she was not prepared to do, and reiterated that she wanted to see if there was some way of resolving the matter internally. After some discussion it was agreed that L.H. would prepare a draft letter detailing her allegations. The draft would be sent to Varano, who would provide input.

Once they agreed on a final draft, the letter would then be delivered to the accused. [ 30 ] Once again, I see this incremental approach as cautious, dignified behaviour on the part of the complainant, which, as I have already said, in my judgment fortifies her credibility. [ 31 ] While the letter was being revised over the next two days, L.H. testified that she continued to be fearful that the accused might approach her when she was alone. In addition to trying to ensure that she was accompanied by staff or students any time she was at school, she also called her union representative to seek additional advice.

The union representative indicated that she would speak with the Superintendent and would get back to her. [ 32 ] The letter (a signed copy of the email version contained in Exhibit 6) was delivered to the accused’s mailbox at the school at the end of the school day on Friday May 1. [ 33 ] Before this letter was delivered, earlier in the day on May 1 the accused entered the complainant’s classroom to advise her that he was taking some of her students to the playground to provide athletic coaching.

His physical presence – once again after he had been expressly and implicitly warned off several times – combined with the fact that she had heard from colleagues that Mr. Ciraco had been attempting to find her, frightened her sufficiently that she decided to get in touch with Det. Roy Foster, a personal friend, to seek advice. They spoke briefly on the telephone, and agreed to meet that day. At the end of that meeting, not surprisingly, Det. Foster advised her to go to the police with her complaint. She testified that she then decided that this was what she was going to do.

However, the following morning (Saturday May 2), she received a call from either from her union representative or the Superintendent (my notes are unclear). L.H. was told that she could take off some days from work if she chose to do so, and that a meeting between school officials and the accused had been scheduled for the following Tuesday (May 5).

With this in mind, the complainant decided not to go to the police until after that meeting, as (I infer) she still hoped that the matter could be resolved internally. [ 34 ] L.H. stayed away from the school from May 4-6, though she heard from McCarville that he had seen the accused at work on May 6, the day after his meeting with school officials. She returned to the school on Thursday May 7, fearful of meeting the accused, but still hoping that the issue could be resolved internally, as “I still wasn’t mentally prepared to go to the police”. However, after learning from Ms.

Varano and her union representative that – apparently – the accused was not going to be removed from the school, she called Det. Foster on Friday May 8 to advise that she was now prepared to make a formal complaint. Det. Foster (who did not work in the police Division where the school was located) indicated that he would “walk me through the process” by accompanying her to the local Division on Monday May 11 – which he did. [ 35 ] The complainant was vigorously (but entirely fairly) cross-examined about the process by which she came to complain to the police.

In my opinion this issue of process may now be disposed of quite summarily. Counsel’s argument on this point was that L.H. only went to the police after she learned that the accused was not going to be ordered removed (or transferred) from the school by senior administrators. As the evidence has emerged, counsel seems to be entirely correct in this submission. And while I can envisage cases in which such a course of action might cast doubt on a complainant’s bona fides , I actually find that L.H.’s reluctance to involve the police in an official capacity in fact adds to her credibility.

She and the accused had been mutually respectful professional colleagues and friends for about a decade, and I have little doubt from her evidence that to some extent she regrets the demise of that relationship. (Though she did not say this, perhaps she also felt some regret that her allowing the accused to kiss and hug her quite frequently may have encouraged him to do what she says he did).

She also said in cross-examination that she originally hoped that her feelings of revulsion and fear about what had happened “would subside and that we could go back to being colleagues”, and that it was only after she realized that her concerns did not lessen that she began to contemplate the option of going to the police, as encouraged by Ms. Varano. Finally, L.H. explained that she did not go to the police earlier in the process as she was not privy to all of the options available to the Board, which was one of the reasons she contacted her union representative for advice.

Thus, while I accept counsel’s submission that the complainant only went to the police when she realized that other measures which she hoped would result in the [now] accused’s removal from the school had been unsuccessful, not only do I not think her hesitation materially affects the complainant’s credibility, I think it strengthens it. [ 36 ] Counsel related this point to his more general point that the complainant should not be believed (

a) because she was inconsistent and/or incomplete in what she told people at various times about what had happened, and (

b) that her statement to the police was considerably at odds with what she had previously said to others and written down. [ 37 ] Both counsel agreed that L.H. did not provide full details of what had happened when she spoke with da Silva, Primomo and McCarville either on the way to or at the restaurant. (Similar comments may be made about the evidence of Martire regarding his

later interaction with L.H.). However, I am mindful of Crown counsel’s point that these witnesses were all civilians, who did not appreciate the need to make contemporaneous notes to record accurately what exactly was (and was not) said. The notes made by da Silva (Exhibit 3) and McCarville (Exhibit 5) were made many days later, and largely consisted of a

summary of some of their interactions with the complainant and the accused; neither Primomo nor Martire made any notes. In light of this Crown counsel accepts that there are some discrepancies among these witnesses’ recollections of what was said by L.H., but he argues that these are minor, and should not accept my overall assessment of the credibility of the complainant. With this I agree.

Having taken some weeks to dissect the evidence and to peruse exhibits filed, while I am prepared to accept that to the extent that the inconsistencies in the testimonies of the three witnesses who were with her may affect their ability to recall, I have ultimately concluded that their evidence is not of central importance to this case. [ 38 ] Nor am I particularly troubled by the fact that in describing what had happened to these civilian witnesses L.H. did not provide a complete description of what had occurred.

In my experience, it often takes a skilled interrogation by a properly trained investigator before full details of an obviously traumatic incident are fully disclosed by a complainant. Further, I think she did provide a considerable amount of detail to these witnesses. [ 39 ] Somewhat more concerning is the evidence of Det. Foster regarding his lack of verbatim notes of his conversations with L.H. on May 1. He testified that he initially spoke with her on the telephone. He made notes of “the basics” of her words after the conversation was concluded.

Perhaps this is excusable, as she was principally calling him as a friend to seek advice. However, when they met in person later in the day he similarly did not make contemporaneous notes of the content of what she said – though he did record that her cheeks were flushed and she seemed embarrassed and upset. This is regrettable, because while Det.

Foster’s notes do not contain any references to a complaint that her breast was touched (or grabbed), or that she pushed (or shoved) the accused away, or that she told him to get away, those subject matters had been detailed in her letter to the accused (Exhibit 6) that she had worked on over the previous two days, and which she had just signed and arranged to have delivered that very afternoon to the accused’s mailbox at the school. Counsel invites me to infer that L.H.’s apparent failure to tell Det. Foster about those points should reflect negatively on her credibility. [ 40 ] I certainly agree that Det.

Foster should have realized that when they met in person the complainant’s allegations should have been accurately and contemporaneously recorded, especially once she told him that she was now prepared to involve the police. To that extent his evidence is less credible (as is his lack of recollection or notes that he and L.H. spoke on May 8 when she asked him to arrange for her to go to the police Division that would have carriage of this case). Once again, however, I do not regard Det. Foster’s evidence as central to this case.

What is of course critical is the evidence of the complainant, and particularly the potential significance of inconsistencies in her various versions. To these I now turn. [ 41 ] In addition to bringing out inconsistencies in what L.H. may or may not have told people at various points in the process, counsel relied on three written sources to impeach her credibility. The first of these was a set of handwritten notes (Exhibit 1) that she made as the process unfolded, beginning the day after the incident and continuing up to the time she went to the police.

These notes (and her recollections) were used as the basis for the factual allegations contained in her part of the letter delivered to the accused on May 1 (Exhibit 6). Finally, I was provided with a transcript of her interview with the police on May 11, 2009 (Exhibit 2). [ 42 ] Counsel’s overall point about these written records is that despite various opportunities to provide a full explanation of what had happened to several people she interacted with, L.H.’ s specific details of her complaint did not emerge until the May 1 letter. He argues that this should reflect negatively on her credibility.

For example, it came out in evidence that L.H. and McCarville spoke either daily or almost every day between May 24 and May 11, and it will be recalled that both of them described one another as “best friends”. Counsel put to the complainant that she did not apparently describe to McCarville all of the details as to what had happened. In words that to my mind had a considerable ring of truth to them, L.H. not only accepted counsel’s suggestion, but she also explained that she did not want to revisit what had happened to that level of detail.

While I acknowledge counsel’s point, after due consideration I do not think it impugns her credibility in any material way. [ 43 ] Counsel particularly stressed one point of contradiction between the complainant’s evidence and McCarville’s statement (Exhibit 5). In his statement he recorded that she told him that she “slapped [the accused] in the face” as part of the process of getting away from him. However, in her cross-examination the complainant asserted that at no time did she slap the accused in the face. She explained that in her mind the words “slap” and “push” are largely synonymous.

However, counsel then properly put to her that at various points in her police interview she differentiated between pushing and slapping (Exhibit 2, p. 6, line 6; p. 25, lines 10-17), or between “shoving” and slapping (p. 24, line 4). [ 44 ] Another point aptly brought out by counsel was a difference between what McCarville recorded in his statement (date stamped May 9) and what she recorded either in her handwritten notes or in her May 1 letter. He records that she said the accused kissed her on the lips, but neither Exhibit 1 nor Exhibit 6 contain any such reference.

When this contradiction was put to L.H. in cross- examination, according to my notes she testified “I’m not saying that he kissed me on the lips”. [ 45 ] I think these last two points were well made. I agree that these are contradictions on material aspects of L.H.’s factual allegations.

The question I have to decide – and, as will be seen, this is at the nub of this case – is whether these contradictions are sufficiently significant so that I should be driven to the conclusion that L.H.’s evidence should be substantially rejected. [ 46 ] Before I analyze the significance of these contradictions, it is appropriate for me to provide my overall impression of the logic and demeanour of the complainant’s evidence from having observed her in the witness stand over most of a day. I must say that I had a very favourable impression of L.H.’s ability to recall and of her veracity.

At no point did I have a sense that she had a particular axe to grind against the accused; in fact, I sensed that she gave her testimony against a backdrop of some considerable feelings of regret both that this had happened and that she was now discussing it in a public forum. In my judgment she did not exaggerate her evidence, she largely conceded points that she must have known would contradict what she might have previously said or done, and she remained consistent throughout probing (but very fair) examination in chief and cross-examination.

Apart from the points made by counsel, I thought she was a first-rate witness. As aptly put by Crown counsel in his summation, L.H. was “an intelligent, measured and consistent witness”, who presented as “calm, measured and factual”.

[ 47 ] Against this backdrop, having considered the matter fully, I have come to the conclusion that the contradictions brought out by counsel are not dispositive of the way I should evaluate the complainant’s credibility. In other words, despite what counsel was able to bring out, in my judgment the core of the complainant’s evidence was untouched. For example, it would have been easy for her to say that McCarville had accurately recorded that she had said that the accused kissed her on the lips, instead of acknowledging the contradiction between what he recorded and what she had written down.

Alternatively, she could have said that McCarville was mistaken in his recollection and recording of what she had told him on this point. As I have previously said on another point raised by counsel, and equally applicable here, I find that the witness’ honesty and forthrightness strengthen rather than weaken her evidence. [ 48 ] As to counsel’s most substantive point about differences between “slap”, “shove” and “push”, I have concluded that these contradictions similarly are not dispositive of the core issue to be determined in this case.

With respect, this supposed contradiction amounts to little more than verbal jousting. If her sexual integrity was violated by his assault, it frankly matters little how she repelled the attack. [ 49 ] Having now dealt with the evidence called by the Crown (and that of the defence witness Martire), I now turn to the only other evidence called by the defence, namely that of the accused. As I have previously indicated, his evidence mostly concurred with that of the Crown witnesses.

About the only significant way in which it differed was, of course, on whether the touching in the elevator was inappropriate, in that it amounted to a non-consensual touching. The accused’s position was that nothing occurred in the elevator beyond that to which L.H. had consented many times in the past. When she sent him a note later in the day claiming that she “felt violated”, he testified that he was “stunned to receive [it]”.

He was “a bit shocked and surprised…I tore up the note and threw it out because I was embarrassed”. [ 50 ] The accused’s version of the conversation in the school playground that afternoon requires some detailed scrutiny. During examination in chief he said that he told her that from he was “stunned/surprised” to receive her note; nevertheless, from now on “I will keep my hands in my pockets”. When it was put to him in cross-examination that this was quite an odd response, he said that he was “trying to use humour to diffuse a difficult situation”.

Beyond the appalling inappropriateness of the remark about keeping his hands in his pockets, unfortunately, I must say that his explanation for the comment did not strike me as truthful, especially from a well- educated and articulate person. I thus reject his explanation that he was trying to use humour.

It follows from this that I accept the complainant’s evidence that the accused went on to say words to the effect that he had to keep his hands in his pockets in order that he might control himself. [ 51 ] No doubt live to the potential danger that this remark might well raise, defence counsel attempted to explain it away by submitting that if the accused truly knew that he had “crossed the line”, he would surely have stayed away from the complainant entirely.

He thus proposed that I should see the remark – however infelicitous – as a way of apologizing to L.H. for having “upset” her. [ 52 ] Though the accused steadfastly maintained throughout his evidence that he did not touch the complainant in any way that was different from that to which she had consented many times in the past, his counsel advanced an alternate hypothesis which, if sustained, could provide the accused with a defence based on R. v. Pappajohn (1980) 1980 CanLII 13 (SCC) , 52 C.C.C. (2d) 481 (S.C.C.).

He proposed that even if the complainant did not consent to being touched by the accused, in light of their previous history he believed that she was consenting, thereby entitling him to take advantage of his honest but mistaken belief. [ 53 ] In my judgment both of those arguments depend on my finding of fact about what happened in the elevator. I view the accused’s comment about “keeping his hands in his pockets” from now on is very suggestive of his consciousness of his guilt.

When I combine this with the fact that he finally conceded in cross-examination that he “may have said sorry” when they were in the playground, and with his Monday April 27 apology (“L. I’m sorry about Friday.

I’m sorry”), my conclusion about his awareness that he knew full well that he had crossed the line is further fortified. [ 54 ] The accused was extensively pressed in cross-examination about why, if he was so “stunned/surprised” when he received her note he neither asked her what might have motivated her to write it, nor did he seek any explanation from L.H. as to why she thought what had happened in the elevator was so different from consensual touching on other occasions. Once again, looking at the content of his testimony, it makes no logical sense that he would not have done so.

Though he was consistent in his denials that he did not do so because he knew he had crossed the line, I do not accept his evidence on this point. In my judgment, there is no “air of reality” to a defence based on honest but mistaken belief. [ 55 ] In coming to my conclusions that the evidence of the accused on the contentious points in this case should be rejected, I caution myself that it is often difficult for a witness simply to repeat denials of allegations put to him by a skilled cross-examiner. After several repetitions, the denials seem hollow and unpersuasive.

In this case Crown counsel pressed the accused with numerous questions about why, if he had done nothing wrong, did he repeatedly apologize. The accused responded to most of these questions with repetitive replies to the effect that he was apologizing “because she seemed upset”.

I am live to this danger, and wish to make it clear that my dismissal of the accused’s evidence on crucial points is not based on these responses, but is rather based on the inherent illogicality of his evidence, and my conclusion about the logic and (to a much lesser extent) the demeanour of the complainant’s evidence. [ 56 ] There is one further aspect of the accused’s testimony on which I wish to comment very briefly. He attempted to explain that after he had apologized to L.H. on the Friday afternoon in the playground, he “thought the air had been cleared…[and] that things were back to normal between us”.

It was only after L.H.’s husband called him on the Sunday evening that he “realized that things were not all cleared up”. As I have previously noted, if L.H. and her husband had both warned him not to have contact, what possibly could have been his intention in approaching her first thing Monday morning – other than frantically wanting to find some way of pre-empting or dissuading L.H. from making some type of complaint?

In my judgment this rather bizarre behaviour further fortifies my conclusion that the accused knew full well he had committed a sexual assault, but that, to use the phrase which I have found he uttered, he could no longer control himself around her; in a word, his “post-elevator” conduct indicates to me that he was either unable or chose not to stay away from the complainant. [ 57 ] Thus, applying the first branch of the W. (D.) test, I reject the evidence of the accused as illogical and incredible.

[ 58 ] Counsel did not propose that the second branch of the W. (D.) test is applicable to this case. With this I agree. [ 59 ] I turn now to the third branch of the W. (D.) test, which is whether, upon the basis of evidence that I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

The three stage analysis developed by the Supreme Court of Canada in that case is frequently cited for the proposition that a criminal trial is not a credibility contest between the accused and the complainant i.e. that simply because the evidence of an accused is disbelieved and the evidence of the complainant is accepted, a finding of guilt should necessarily follow. As Fish J. put it in the subsequent case of R. v.

C.L.Y. 2008 SCC 2 (CanLII) , [2008] 1 S.C.R. 5: “[t]he very purpose of adhering to the procedure set out in W. (D.) is to foreclose an inadvertent shifting of the burden of proof where the complainant and the accused have both testified and the outcome of the trial turns on their credibility as witnesses” (emphasis in original).

Thus, I caution myself that by rejecting the evidence of the accused and accepting that of L.H., that does not at all mean that a finding of guilt must ensue. [ 60 ] In support of his argument on the third branch of the W. (D.) test that I should not be persuaded beyond a reasonable doubt of the guilt of the accused, defence counsel submitted two judgments of the Ontario Court of Appeal. The first, R. v. Gostick 1999 CanLII 3125 (ON CA) , [1999] O.J.

No. 2357 cautions trial judges that it is an error in principle to base a finding of guilt only upon a complainant’s demeanour; rather, her credibility and reliability must be determined on the whole of the evidence called. I believe that by addressing the facts and logic surrounding the complainant’s behaviours, after evaluating her words as expressed in the various exhibits and, above all, the logic of her testimony against the backdrop of all the evidence called, I have adequately addressed the court’s concerns expressed in R. v. Gostick . [ 61 ] Counsel also relied upon R. v.

V.Y. [2010] ONCA 544, a very recent decision where in a split decision the Court of Appeal re-emphasized the need to be careful in the application of the W. (D.) test. I similarly believe that I have addressed the majority’s concerns expressed in that case. Other than counsel’s brief suggestion of a possible defence based on R. v. Pappajohn , this is not a case in which the accused has raised a positive factual defence; rather, he simply says that what the complainant alleges did not happen.

This, combined with the fact that the accused accepts much of what L.H. said, means that it was not necessary for me to describe and evaluate his position in more detail than I believe I have done. [ 62 ] In result, I find the accused guilty of sexually assaulting L.H. on April 22, 2009. [ 63 ] I wish to thank counsel for the economical and thoroughly civil manner in which this case was presented. May I now hear from counsel when they wish to proceed to a sentencing hearing. Released: December 17, 2010 Signed: “Justice David P. Cole”