R.v. Jackson, 2019 NSSC 202

SUPREME COURT OF Nova Scotia Citation: R.v. Jackson, 2019 NSSC 202 Date: 20190508 Docket: CRH 469586 Registry: Halifax Between: Her Majesty the Queen v. Blake William Jackson Restriction on Publication: Sections 486.4 & 486.5 of the Criminal Code Decision Judge: The Honourable Justice Christa M.

BrothersHeard: February 4, 5, 6, 7 & 8, 2019, in Halifax, Nova ScotiaOral Decision: May 8, 2019, in Halifax, Nova Scotia Written Decision: July 5, 2019Counsel: Sean McCarroll, for the Crown Thomas Singleton and Leora Lawson for the Defence [1] Blake William Jackson, has been charged with committing a sexual assault on the complainant, on December 15, 2015,contrary to s. 271 of the Criminal Code. As is often the case, the main witnesses were the accused and the complainant. Theirtestimony is diametrically opposed on the core allegations.

This is not a case where one party describes consensual sexual relationswhile the other describes non-consensual contact. The complainant alleges that the accused engaged in non-consensual acts of kissing,touching, and then forced her to fellate him. The accused denies that any such contact occurred. [2] This case comes down to whether the evidence establishes the accused’s guilt beyond a reasonable doubt. This requires anassessment of the credibility and reliability of the evidence.

Presumption of Innocence and Burden of Proof [3] The most important principle in this matter, as in all criminal cases, is the presumption of innocence that stays with theaccused throughout (R. v. Starr, 2000 SCC 40, and R. v. Lifchus, (SCC), [1997] 3 SCR 320). The presumption ofinnocence continues throughout the case unless the Crown, based on the evidence, proves beyond a reasonable doubt that the accused isguilty of the offence as charged. [4] There is no burden on the accused to prove his innocence. The accused does not have to prove anything, and this neverchanges.

[5] Reasonable doubt is based on reason and common sense arising from the evidence or absence of evidence. Reasonable doubtis closer to absolute certainty than to a probability. Thinking the accused is probably guilty or likely guilty is not enough. A reasonabledoubt is not an imaginary or frivolous doubt, or one based on sympathy for or prejudice against those involved in the proceeding.

Areasonable doubt is a doubt based on common sense and reason. [6] The Crown must prove each element of the offence beyond a reasonable doubt. [7] The majority of the evidence pertaining to the alleged offences consists of the conflicting evidence of the complainant and theaccused. I am guided by the decision of the Supreme Court of Canada in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742. Here the instruction in considering evidence in such cases is: 1. If the evidence of the accused is believed, he must be acquitted; 2.

If the evidence of the accused is not believed, but the evidence still raises or leaves a reasonable doubt, he must be acquitted;and, 3. Even if the evidence of the accused does not raise a reasonable doubt, he must be acquitted if a reasonable doubt is raised byother evidence that is accepted. In order to convict, the evidence that the court does accept must prove his guilt beyond a reasonabledoubt. [8] To a large extent the Crown’s case rests on the testimony of the complainant. The result is that this decision hinges oncredibility and reliability.

It is not a matter of who I believe, but of whether, based on all the evidence or absence of evidence, the Crownhas proven the elements beyond a reasonable doubt. It is not, however, a credibility contest. The Court cannot compare the evidence ofthe accused and the evidence of the complainant and simply choose between them. [9] In considering the evidence, if I find the complainant credible, it does not in any way shift any onus to the accused (R. v.C.L.Y., 2008 SCC 2). All of the evidence must be considered (R. v. E.M.W., 2009 NSPC 33, affirmed at 2011 SCC 31). As Campbell,Prov. Ct.

J. (as he then was) stated in R. v. E.M.W.: 47 The concepts of "accepting" and "rejecting" evidence are a convenient judicial shorthand. For a trial judge they may not alwaysaccurately reflect that more complicated relationship between doubt and belief. In some cases, the evidence of the complainant may befound to be more reliable, believable, or credible. The evidence of the accused may be much less reliable, believable or credible.

Thatdoes not mean that his evidence may not be just reliable, believable or credible enough to raise a reasonable doubt in light of theremaining scope of doubt left by the complainant's evidence. It is not only appropriate, but necessary for judges to consider all thesources of reasonable doubt.

The sources may include the doubt left by the complainant's evidence, the doubt created by the evidence ofthe accused, the doubt found in any other evidence or the doubt arising from the combination of those sources. [10] I must not apply the standard of proof beyond a reasonable doubt piecemeal to individual items or categories of evidence. Rather, I apply it to the final evaluation of guilt or innocence (R. v. Menard, (SCC), [1998] 2 S.C.R. 109). [11] I have considered the totality of the evidence. I recognize I need not believe or disbelieve all of a witness’ testimony.

I canbelieve none, part, or all of any of the witnesses’ evidence (Novak Estate, Re, 2008 NSSC 283). [12] In this case, the accused’s denial puts credibility at the heart of the matter. [13] The accused’s testimony is not to be assessed in isolation. [14] It should be added that as prescribed by s. 274 of the Criminal Code, no corroboration of the complainant’s evidence is requiredfor a conviction. Evidence [15] I will review the evidence given by the witnesses at trial. I will not refer to all of the evidence, but I have considered all of theevidence in reaching the verdict.

I will review the Crown evidence first, simply because of the order of the witnesses. F.J. [16] The complainant’s mother, F.J. testified. She said she first learned of the allegations before the court from M.D., thecomplainant’s boyfriend, who called her and reported what was told to him. F.J. said she encouraged her daughter to report the allegedassault. She also drove her daughter around the vicinity where the alleged assault occurred, so that her daughter could recall the detailsand show her where it happened.

F.J. assisted her daughter to document as best she could where this took place. [17] F.J. testified about certain lamp posts as a landmark they were searching for on that drive. She described her daughter’sdemeanor throughout the drive. She said that as they came close to the location, her daughter became more emotional and wasphysically sick. She described her daughter as very distraught when they got to the location. [18] F.J. was a reliable witness. She was clear in her evidence and struck me as a person taking care to give accurate evidence.

Sheis obviously a caring mother who took the steps she felt appropriate to assist her daughter. I accept her evidence without hesitation. [19] Parenthetically, I must be careful in considering the evidence in relation to the complainant’s reaction, when they approachedthe location where she alleges this happened. I must be careful in drawing any conclusions from the complainant’s reported physicalreaction. Courts have been warned not to make assumptions about how a person would or should react in such circumstances. TheCrown argues that this was powerful evidence supporting the complainant’s credibility.

I am hesitant to place too much weight on it,because if the complainant had not reacted this way, it would not diminish her credibility (R. v. A.R.J.D., 2017 ABCA 237, affirmed,

2018 SCC 6 ). C.C. [ 20 ] C.C. has worked as an African Nova Scotian Student Support Worker at the complainant’s high school for 12 years. She described the role of a student support worker and the work they do to support students of African Nova Scotian descent in the school system. She described her work as incorporating a variety of responsibilities, but overall being concerned with promoting self esteem and academic success in African Nova Scotian students. The job description was entered at trial and provides a detailed review of the supports and positive role a person in this position is to provide.

I note that what I describe in this decision is a high-level overview of the complex and multi-faceted work student support workers engage in with students. At the time in question, C.C. worked Mondays, Wednesdays, and Fridays at the high school, and Tuesdays and Thursdays at a junior high school. [ 21 ] C.C. testified that the complainant made a disclosure to her, and that during the disclosure the complainant’s demeanor changed. C.C. described the complainant as usually happy, but said she became upset during this interaction. C.C. testified that she asked the complainant if she wanted a “Ms.

C. hug”, which C.C. was obviously well known for, and I heard evidence that students sought comfort from her frequently. The complainant did not want a hug. The Crown asked me to consider this demeanor evidence in assessing the complainant’s evidence. Again, I am mindful not to place too much reliance on demeanor evidence. [ 22 ] There was uncontroverted evidence that the accused drove the complainant alone in his car on the day in question. C.C. testified that she would not have taken students in her car to lunch because in her role she was not permitted to do so.

C.C. understood that School Board policy prohibited student support workers from driving students. She reported that the accused was present when the student support workers were told they should not be driving students in their cars. The accused testified that he drove students in his car at lunch and that there was no problem with this practice. While this is a collateral issue, and nothing ultimately turns on it, I accept the evidence of C.C. on this point. I will speak more on the accused’s evidence later in these reasons. [ 23 ] C.C. was able to give evidence about the

schedule of classes in 2015. She said the school day began at 9:00 a.m. The second block began at 10:35 a.m. Lunch began at 11:35 a.m. and ended at 12:35 p.m. [ 24 ] C.C. acknowledged she has been friends with the complainant’s mother for years and has known the complainant. [ 25 ] I found C.C. to be an impressive witness. She struck me as a person who was careful to provide accurate evidence and details. Her evidence was credible and reliable. M.D. [ 26 ] M.D. was the complainant’s boyfriend at the time of the alleged sexual assault. He gave evidence in relation to the initial disclosure by the complainant.

He is no longer in a relationship with the complainant, but at the time of the disclosure they had been dating for a year and a half. [ 27 ] M.D. testified that the disclosure came in a text message. He and the complainant were having an argument at the time. He testified the complainant seemed “off” to him and he asked her what was wrong. He felt that she had been “off” for a week or two. He had the impression when she told him that she was eager to disclose the information. M.D. called the complainant’s mother directly afterwards. [ 28 ] M.D.’s evidence was unchallenged. He testified in a forthright manner.

I accept his evidence as both credible and reliable. Sergeant Duane Flynn [ 29 ] Sergeant Duane Flynn of the RCMP Technological Crime Unit testified concerning the cell phone records obtained in relation to the complainant’s and the accused’s phones. When there are investigations involving electronic devices, Sgt. Flynn preserves the electronic data and employs software to obtain an exact copy image of the data. The data is parsed so that it can be read. He was not qualified as an expert, but described the process of data collection and how he extracted the information from the two phones.

He testified that he cannot always retrieve the deleted information. In this case, he said, there was deleted information he could not retrieve. [ 30 ] Sgt. Flynn’s evidence confirmed the records and the contacts between the complainant’s and the accused’s phones. There was only one exhibit with some texts between the two phones. Other than that, the evidence showed the numbers and the times of the texts sent and received. [ 31 ] Sgt. Flynn located the text where the complainant first made a disclosure to her boyfriend. This became an exhibit. [ 32 ] I found Sgt. Flynn to be a reliable witness.

The exhibits relating to his data collection were entered by agreement of the parties. The Complainant [ 33 ] The 21-year-old complainant testified. In September 2015, she was 18 years old and enrolled in high school for an upgrading year. (She had already graduated from a different local high school.) She met the accused, who was one of two African Nova Scotian student support workers working at the high school. [ 34 ] As C.C.’s evidence indicated, student support workers work with African Nova Scotian students and their families to ensure a positive school experience.

The complainant testified that what she experienced with the accused was nothing of the sort. I quote from the “Student Support Worker’s Guidelines, Standards and Evaluation” as follows from page three: Student support workers, together with school efforts, work to promote a school climate that is safe, supportive, and respectful and that connects African Nova Scotian students to a broad array of school and community resources. Student support workers are based in

schools and work with the school staff and the home to support students’ school success. By supporting the efforts of the classroom teachers and the principal and facilitating the communications between the school and the home, the Student Support Worker Program strives to achieve improved attendance rates, greater contact with supportive adults, greater compliance with school assignments and rules, and reduce school suspensions and drop out rates among African Nova Scotian students.

The student support worker mobilizes and integrates school and community resources, improves the impact of these resources on student learning, and supports principals and teachers as they continue to work to meet the students’ needs. He or she can inform students of outside resources.

Additionally, student support workers who are of African descent serve as cultural role models. [ 35 ] The testimony of the complainant was that she began a full course load in September 2015, and had three courses in the second semester. [ 36 ] The complainant testified that she took advantage of the supports provided by the student support workers, C.C. and the accused. If she had difficulty with teachers or with school work, she would seek help from a student support worker. She utilized the support worker classroom and had lunch there at times. She also used the room as a place to study during school hours.

She had both C.C.’s and the accused’s cellphone numbers in order to contact them about accessing the classroom. She said she would text them, not call them. [ 37 ] The complainant testified that she was more involved with C.C. because, in her opinion, C.C. was a better student support worker than the accused. C.C. would have tutors come in to assist students. The complainant said C.C. helped her students stay in class and tried to push the students more than the accused did. The complainant also noted that if she did not want to be in a class it was easier to get out of one when the accused was working.

He did not ask as many questions about why she did not want to be in class as C.C. did. [ 38 ] Overall, the evidence of the complainant was that C.C. was a more effective student support worker and took her job more seriously than the accused. His effectiveness as a student support worker is a collateral issue. I did not use this evidence in my assessment of the essential elements of the offence or the accused’s credibility, but I do note that the complainant went to great lengths to give her opinion about his effectiveness in his job.

Contact Outside School [ 39 ] The complainant testified that outside of school she did not have much contact with student support workers. C.C. initiated a black culture group, called KTS, Know Thyself, of which the complainant was the president, but other than that she did not have contact with support workers outside of school. [ 40 ] The complainant was asked whether she had any contact with the accused outside of school. She said, “Can’t really say I did, no”. This is inconsistent with the documentary evidence that was entered by consent.

Exhibit two is the phone records of the complainant from Telus and Exhibit three is the accused’s phone records from Bell Mobility. Both exhibits indicate that there was contact between the complainant’s and the accused’s phones outside of school hours. Perhaps she was referring to in-person contact, but her evidence was unclear on this. [ 41 ] The complainant testified that before the day of the alleged assault, she had not gone to lunch alone with the accused. If she did go to lunch with the accused, it would be in conjunction with two of her friends. This occurred a handful of times.

Sometimes they would go to Pizza Delight or McDonald’s on Quinpool Road. The accused would drive, and each person would pay for their own lunch. They would usually pick up the food and eat it back in the student support workers’ room. [ 42 ] The complainant also testified that she went to lunch with C.C. This is inconsistent with C.C.’s evidence, which is that she would never go to lunch with students. I accept C.C.’s evidence without hesitation. She was a forthright witness and I find her evidence credible and reliable.

While this inconsistency relates to a collateral matter, I do consider it along with other inconsistencies in the complainant’s evidence. [ 43 ] The complainant testified that the only time she went alone with the accused to lunch was on December 15, 2015, the date of the alleged sexual assault. This is consistent with the accused’s evidence. December 15, 2015 [ 44 ] The complainant testified that her first contact with the accused on December 15, 2015, was probably asking him if the student support worker room was open in the morning.

She believed she texted him about this early in the morning or just before school started. She was not sure whether she had any contact, such as messaging, with the accused between the time she texted him in the morning and when they met for lunch. She testified that it was the last week before the Christmas break, and she did not recall her other friends, who usually went to lunch, being at school that day. [ 45 ] The complainant was unsure of what time lunch started. She testified that it was between 11:30 a.m. and “12ish”. She was unsure how long the lunch period was, but thought it was possibly an hour.

While she recalled attending all her classes that morning, she did not recall what they were. The complainant did not recall her class schedule. [ 46 ] The complainant testified that she did not have a lunch with her that day, and asked the accused if they could go get lunch and come back to the school to eat. She did not remember whether the conversation was by text or in person. The accused asked her to meet him at the side doors of the school, where his car was parked. She did so.

On cross-examination, the complainant could not recall whether the accused was already at the side door in his car when she got there. [ 47 ] The complainant testified that the accused suggested going to McDonald’s, but because she did not eat meat, she suggested Burger King located at the intersection of Young and Robie Streets. She could not recall the route they took, or how many stops they made between the school and Burger King. She recalled that the accused’s vehicle was an Acura sports utility vehicle. She could not

recall the details of the conversation on the drive to Burger King. On cross-examination, she testified that it took about five to ten minutes to drive from the school to Burger King. [ 48 ] The complainant described arriving and going into the restaurant to order their food. She testified that there was no line-up when they ordered. She said she paid for both their meals, but could not remember why. On cross-examination, the complainant’s claim she paid for both meals was challenged, including pointing out that the accused was the one with the job. She did not change her evidence.

She could not recall whether he asked her to pay for his meal. She said it took about ten minutes to get their food, during which they stood waiting for their order to be completed. She also later testified it took 10-15 minutes. She testified she could not remember whether they started eating right away or talked first. [ 49 ] The complainant said she ordered a veggie burger and mozzarella sticks. The accused ordered chicken fries. She said they sat in the back left corner booth, where they ate. She testified that she had expected they would go through the drive-thru and bring the food back to the school to eat.

That did not occur. She said this was different, but she went with it. She testified that a conversation started, and she testified it “went downhill from there”. She said the accused started asking inappropriate questions. Her boyfriend was living in Antigonish attending university. She testified the accused knew this and asked her questions of a sexual nature. She had the impression that these questions turned the accused on. She did not feel they were appropriate from a teacher to a student. She could not recall what led to these questions. They had never had such conversations before this.

Once the accused started asking her these questions, she lost her appetite and did not finish her food. She first testified that she did not answer the accused when he asked these inappropriate questions. Later in her evidence, she said she could not recall whether she answered. Asked about his demeanor while asking these questions, she said his voice became different and softer. [ 50 ] The complainant also testified that the accused asked her about having had an abortion.

She could not remember whether she had told him about the abortion, which had been several weeks earlier, but she did understand that he knew about it before they went to Burger King. She did not know how he knew. She could not recall whether she responded, but testified that her body language gave a response. She said she silenced herself and stopped eating. [ 51 ] The complainant said the accused finished his fries, they put their garbage away, and they went back to his car. She assumed that they would return to the school, but the accused drove in the opposite direction.

She estimated that they were in the restaurant for about 15 to 20 minutes, between ordering food and the conversation, until they returned to the car. She said it seemed like it took longer. However, on cross-examination she was not sure of the time, referring to it as 10 to 15 minutes or 15 to 20 minutes. She could not recall whether she used her phone in the restaurant. [ 52 ] After leaving Burger King, the complainant testified, the accused drove down Kempt Road, turning left out of Burger King. There was no discussion about the route.

She did not recall the route he took, but said they were near Windsor Street and Lady Hammond Road. She recalled music playing. She described it as old school R&B music, which she did not think was appropriate, because she described it as “slow, sexual” music. [ 53 ] The complainant testified that during the drive the accused asked to see the rings she was wearing. She said she flashed her left hand and put it back down, and then the accused grabbed her left hand and said her hands were very soft. She took her hand back and held it on her lap.

The accused then took her left hand again and placed it on his genital area, while he drove with his other hand. She did not describe it as being full force, but said he had a grip on her hand. Her palm was down. She said she froze and her eyes started to tear up. She did not want to cry because she did not want to show fear. She said she blanked out. She could not say how long her hand was on his genitals. She testified the time from when they left Burger King and her hand was put on his genital area was between 10 to 15 minutes. After 10 to 15 minutes, the accused stopped the car on Merkel Street.

The complainant could not recall whether she was using her phone during the drive, despite her evidence that one hand was on the accused’s genitals. She said the drive seemed longer than it was. She also testified her hand could have been on his genital area for 30 seconds or a minute. Her timing for these events was not certain, but she said “it happened”. [ 54 ] The complainant testified that eventually the accused released her hand. She said they came to Highland Park school, where there is a basketball court, and he took a right. She said there was a big water tank on top of a hill.

The complainant’s evidence is somewhat confusing. She said that after passing the water tank, they proceeded to another street and turned right. However, on Exhibit four she marked an area on Merkel Street. She admitted she could not describe the exact route, explaining that although she grew up in Halifax, she did not grow up in the North End and was not familiar with that part of the city. [ 55 ] The complainant testified she recalled driving around Isleville Street, in an area where there are old lamp posts. She said she recalled these lamp posts because they reminded her of the movie “Alice in Wonderland”.

She described them as being very bright, old- looking, and blue. [ 56 ] The complainant testified about driving back through the area with her mother to refresh her memory and recall the street names. She could not recall the date of that drive, but said it was before she gave a statement to Cst. MacDonald on February 23, 2016. She testified that when they drove around, she told her mother about the different objects, such as the blue lamp posts and the water tank, to situate herself. [ 57 ] The complainant testified that the accused eventually stopped the car. She said there was no conversation before he parked.

She initially thought they were on a dead-end street, but they were not. He parked on the corner by a house that had a fence. She testified that there was a giant tree by her door where he parked. She said the trunk of the tree was very large and blocked her door. [ 58 ] After parking the car, the accused asked the complainant to get into the back seat. She testified the first time he asked, he did so in a normal tone. She asked him why. He responded in a more aggressive tone, telling her to get into the back of the vehicle.

She described the first time as him posing a question and the second time as him making a statement. She also referred to his body language. On cross-examination, when asked what she meant by his body language being different, she testified, for the first time, that he pointed to the back seat. [ 59 ] The complainant said she unbuckled her seat belt and climbed into the back seat. She testified that she did so because the

accused’s tone changed, and she felt she did not have a choice. She climbed over the back of the front seat to get into the back seat because the car was parked so close to a tree that she could not open her door to get out. She sat in the middle of the back seat. The accused exited the driver’s side door and got into the back seat next to her. When asked why she sat in the middle, she said it was to have a clear view of her surroundings. [ 60 ] The complainant said the accused got in next to her, closed the door, and locked it. She said that it was not a push lock but a lock latch on the handle.

Sitting close to her, he put his right arm around her, pulled her face towards him and started kissing her. She testified when he started kissing her, she looked straight ahead until he moved her face. [ 61 ] The complainant testified that she did not push the accused away, but did pull herself away from him as much as possible. She testified that she felt that if she had a reaction that he did not want she could be in more danger. She asked him to stop in a normal tone. He unzipped her jacket. Underneath, she had a blue, plaid, button-up shirt. He started to unbutton her shirt.

She did not say anything at this point. She said she was in “a state”. She did not recall what type of pants he had on, but was able to describe his jacket, shirt, and boxers. She said he kept his long peacoat wool jacket on during the alleged assault. [ 62 ] The complainant testified she had a lot of thoughts going through her head, but she could not move. She thought maybe God would get her out of there. When she asked the accused to stop, his behavior was not altered. He unbuttoned her shirt half way and began kissing her breasts. He then asked her to pull her pants down. She said no.

He pulled his pants down above his knee. The complainant became emotional at this point in the evidence and had to take a break. I do make note of her demeanor at this point. When she resumed her testimony, she testified that after he pulled down his pants to just above the knee, he also removed his underwear. She testified that he was naked from his waist down to his knees and aroused. The accused then pulled on her neck and pulled her head towards his genital area. He did not say anything at that point and she did not say anything to him.

She said he pulled her towards his genitals and she then performed oral sex on him for between 10 to 15 minutes. She said that before he ejaculated her head came up. He ejaculated on his coat. He had a tissue he used to clean himself. She said throughout the time that she was performing oral sex his hand stayed behind her head and he held her head down. After it ended, she buttoned up her shirt and zipped up her jacket. He told her he had never done this before and said she was 18, and asked her not to tell anyone.

He repeated several times that she was 18. [ 63 ] The complainant said the events in the back seat occurred in daytime in a residential area with houses around, and at a busy intersection. She did not recall any people being in the area at the time. When asked whether she heard movement of people or car doors around her she said no, she was in a different mindset and did not recall. It was put to her that she told Cst. MacDonald that she saw a moving van.

She confirmed there was a truck or car on the street while she was in the back seat. [ 64 ] The complainant testified that the incident was quick, less than ten minutes. When she was pressed about how long the incident lasted, she again said about ten minutes, and said it was long enough to remember but short enough that she could not recall the exact time. She then emphatically said it happened. [ 65 ] The complainant testified she then hopped back over the front seat. The accused got out of the car and got back in the driver’s seat.

He started the car and drove to the end of the street and back to the school, where he dropped her off at the cafeteria door. On cross-examination, she said he dropped her off at a different door than the one they left from. She could not remember if anything was said between the events in the vehicle and the drive back to the school. She could not say what time she arrived back in school, but remembered that she was late for class. [ 66 ] The complainant recalled having her entrepreneurship class after lunch. She said she went to the bathroom when she returned to school, washed her mouth out and cried.

She then went to class. She attended all her classes that afternoon. She testified she did not have any further contact with the accused at school. The class she had after lunch, entrepreneurship, was across from the student support worker classroom. She said she saw the accused outside her class, but did not speak with him. [ 67 ] On cross-examination, the complainant was asked who her entrepreneurship teacher was, but could not recall, stating “it was three years ago”. She said she was late for class but could not recall when the class would have begun after lunch.

She could not recall the length of the entrepreneurship class, but said a normal class was an hour long. She could not recall how much time was left once she entered the class. She could only say that she was late. Text Messaging After the Alleged Event [ 68 ] While there was no more contact that day, the complainant said there were texts between her and the accused that night. She said there was a good deal of messaging between them. She testified she had never received text messages from the accused at night before. She recalled the content of the texts generally.

She testified that the accused asked how everything went and asked her to rate it from one to ten. He asked her whether, if they were at a different location, they could have gone further. She responded to his messages, saying “I played into him”. She said she responded because she was afraid, because he was a teacher with power. She testified that she believed he could do anything at that point.

She said she deleted the text messages between them because she did not want her mother to see them. [ 69 ] I note that I place no weight on the amount of contact between the two phones with regards to the veracity of these allegations as there is “no inviolable rule on how people who are victims of trauma like sexual assault will behave” ( R v. D.D. 2000 SCC 43 , at para. 65 ). [ 70 ] At the time, the complainant said, the gravity of the event had not sunk in. She said she was in shock. She recalled being at a Know Thyself group meeting the next day at school.

The accused came in and put his jacket on a chair beside her, and mentioned getting the jacket dry-cleaned. She also recalled him texting her another time that he was across the street from her house at the dentist in the mall. Contact between the phones [ 71 ] The complainant could not recall the specifics of the text messages exchanged with the accused on the day of the incident, but

gave general evidence about what the texts before the event would have been and the nature of the texts after the events. The texts were not in evidence. [ 72 ] As noted earlier, the complainant said the first contact between the two phones on December 15, 2015, was when she contacted the accused in the morning to ask if the student support worker room was open. She was then asked what was discussed at other times that morning, as indicated by entries on page 22 of Exhibit two. She could not remember what was being discussed in those text messages.

The last entry on page 22 before the lunch break was at 10:42:48 a.m. Eastern time, or 11:42:48 a.m. Atlantic time. The complainant could not recall why this contact occurred between their phones, but said it could have been to say that the accused was on his way to his car. The complainant agreed that it may have been later than 11:42:48 a.m. that they left the school. She agreed that if the accused was texting her at 11:42:48 a.m., this would be after the lunch bell rang, and they would not have been together at that time. [ 73 ] At 11:42:59 a.m. Eastern time, which is 12:42:59 p.m.

Atlantic time, there was another call from the complainant’s number to the accused’s phone. She did not recall that phone call. It was suggested to her that the 12:42:59 p.m. call would have meant she was back at school. She did not agree and said it could have been a “pocket dial”. The call log showed a call lasting 37 seconds. The complainant became argumentative at this point, and asked counsel “how could you even answer that for 30 seconds” and “Don’t you think a conversation would last more than 30 seconds”. She then said she did not remember the call in any event.

This phone entry, and her evidence, does raise a question about whether she was in the car with the accused at 12:42:59 p.m. [ 74 ] The complainant agreed that she texted the accused at 1:05:19 p.m. Atlantic time. She agreed she was not with him at that time, but was back at school. She said he was outside her classroom when she returned to the school. Her class was in a classroom directly across from his office.

She believed that she might have texted him to ask why he was outside her classroom staring at her. [ 75 ] The complainant testified there was contact between her phone and the accused’s that evening from 19:08:25 Eastern time until 21:09:52 Eastern time; that is 8:08:25 p.m. to 10:09:52 p.m. Atlantic time. The exchange is supported by Exhibit two. She testified that in these text messages the accused was asking her how she enjoyed their interaction and to rate it on a scale of one to ten.

She said she had never exchanged as many text messages with the accused as they did that evening. [ 76 ] The complainant was asked why she contacted the accused the night of the incident. She said she was in shock and did not know what he was going to do, so she might have messaged him to “keep it cool”. She could not confirm the content of all of the messages. She said she was worried about him telling someone and she was embarrassed, and nothing had sunk in yet. [ 77 ] The complainant was asked in cross-examination about the accused’s phone records. There was a four-minute call starting at 12:30:55 p.m.

Atlantic time from a number that the accused later identified as his wife’s. The complainant was asked whether she recalled him taking a call for four minutes and two seconds while she was in the car with him. Instead of responding directly to this question, she said “does that time really matter of where we were? Because that could be at Burger King; that could be anywhere but during the time of lunch until the time I got back, yes his phone rang clearly; it’s on the record as you said .. so if he had a call, he had a call”.

She then said she did not remember him having such a call, but she agreed it could have happened. This is a puzzling response. One would have thought during this time in the car, she would have recalled a call lasting some four minutes and two seconds. Her argumentative approach, and her response that they could still have been at Burger King this late were also puzzling and inconsistent with her earlier testimony. [ 78 ] The Crown called the complainant in rebuttal, given that she was not asked by the Defence about the content of the messages between her and the accused on the evening of December 15, 2015.

She testified that they texted about a test and a basketball game. The complainant was asked whether she recalled a text about a make-up test. She denied this. Disclosure of the alleged assault [ 79 ] The complainant testified that the first person she disclosed the alleged assault to was her then-boyfriend, M.D., who was attending St. Francis Xavier University. She said she decided to tell him because he had noticed her behavior had changed. She started to distance herself from him. She told him by text. She said she did not tell him the full story at the time, only that something happened.

She said she did not tell him all the details because she was embarrassed that it happened with a teacher, while she was in a relationship, and did not want to be seen as fragile. She said she did not want him to look at her differently. Her boyfriend then told her mother. [ 80 ] Aspects of the complainant’s reporting to her boyfriend are inconsistent with her evidence in court. She agreed that some of the things she told him were not true.

She said she was too embarrassed to tell the full story. [ 81 ] On redirect, the Crown read into the record a text message the complainant sent to her boyfriend on January 17, 2016. The exchange was as follows: [Complainant] Kay well … I was malested by a teacher . You can’t ask no question it’s said. Move on. [M.D.] Are you serious. [Complainant] Move on [M.D.] Okay well what’s the other one [Complainant] I’m not saying anything else [M.D.] & u don’t wanna talk bout this

Can I ask one question pls [Complainant] Ok Not saying I’m Gonna answer 100% [M.D.] In what way [Complainant] Ask your question [M.D.] Like in what way [Complainant] Ask your question [M.D.] In what way did he molest you? [Complainant] Was driving people home and I was last and started touching my leg and then parked and told me to up due my shirt and then he said get in the back of the car and he un did his pants and then yeah [M.D.] He had u..

Basically rapped u [Complainant] No more questions pls. [M.D.] No I need to know pls Why wouldn’t u tell me this Is he gone now? [Complainant] Never told no one. [M.D.] lol. He walking around school still Looking u in the face.. Go tell mr. smith or [C.C.] So he had you [Complainant] I can’t. [M.D.] Why not? He had you [complainant]? [Complainant] Because .. I can get kicked out of school . & not really. [M.D.] For what [complainant]? U did nun and this is way more important & so what happened ? [Complainant] Because I can & idk [M.D.] Work with me here.

So worst case he’ll tell u too take a few days off or if u need time but he can’t kick you out [complainant]? Yeah he’ll fire the teacher but not u & u know [complainant]! U were there [Complainant] Yes he can [M.D.] For what , what u do ? & so what really happened after he undid his pants [Complainant] Nun but I didn’t say anything and I’m not. & I was saying no the whole time and crying and then he just made me suck him off and then he told me to undue my pants but I kept saying no and then his phone rang [M.D.] I’m 95% sure u can’t get sent out of school but why can’t u [complainant].

Ur letting him win & how did he make u.. He threatened u? So what he just took u home after? [Complainant] I can’t … & he pulled my head and yeah … Just made me feel bad and ashamed and I can’t tell anyone. I feel discussedEd

[M.D.] Why not [complainant] & how he make u feel bad? U only told me?! [Complainant] I can’t . & because I let him do it. And I couldn’t do anything. & yeah and my theropisy but I said it was my friend [M.D.] Oh u can or I’ll come down there n fuck the nigga up & close ur mouth n keep pushing it away but how did u get in the back Like I hate hearing bout this with u. And I gotta sit back hear about it like a week later and couldn’t do then. Like what [ 82 ] This evidence has some troubling inconsistencies between what the complainant reported close in time to the alleged events and what she described in court.

In the text, she said she was being driven home by the accused, with others, and she was the last one to be dropped off. She stated that the accused started touching her leg and then parked and told her to “up due” her shirt and then told her to get in the back of the car, where he undid his pants. [ 83 ] This is inconsistent with the complainant’s evidence before the court. The timing of the event, driving her home from school, and the statement that others were in the car before the incident, is all inconsistent.

The statement that the accused touched her leg as he drove and asked her to undo her shirt is also inconsistent. Later in the text she said she was crying and saying no the “whole time”. This too is inconsistent with her evidence in court. [ 84 ] Further, in the text, the complainant refers to the accused as a teacher but at trial she was clear he was a student support worker.

She also said in the text that his phone rang, but she never said this at trial. [ 85 ] I will further address the inconsistencies in the complainant’s evidence later in these reasons, as well as her lack of recollection around some details. The Accused [ 86 ] The accused took the stand in his defence. Without hesitation, I did not accept his evidence on some central issues. [ 87 ] The accused testified that he earned a diploma in business administration from Compu-College in Newfoundland.

The accused’s employment history includes work at the Dartmouth Boys and Girls Club, the YMCA as a youth care worker, and as an Educational Program Assistant and in the child development centre for the Halifax Regional School Board. Since 2009, he had been employed as an African Nova Scotian Student Support Worker, working at several different schools. The accused described his work as a student support worker and the competencies required for the job, including communication.

He testified about developing a relationship with the students, and providing them with a place where they could study and do school work, or speak to each other or to him. He spoke of his room as being a safe area for students to hang out and be themselves. [ 88 ] The accused testified that it was a normal occurrence for students to text him. His business card had his cell phone number and his e-mail address. He said he would receive text messages during and after the school day. He was also a coach at the Community YMCA, where he saw a lot of the kids after hours.

He testified that at the school he was someone the kids could lean on. He said he responded to them in a timely manner, including after school hours, as he felt this was his obligation. [ 89 ] The accused was an assistant coach of the Gorsebrook Junior High boys team and Varsity High School Girls and Community YMCA teams, but denied that athletics were a big part of his life. He argued this did not take over time as a father or husband, or work life.

While a collateral issue, it was clear the accused was not readily accepting obvious propositions put to him by the Crown. [ 90 ] The accused denied knowing of a policy or rule indicating that he should not drive students in this own vehicle. He testified that on occasion he had driven students at the direction of vice principals or principals. He pointed to Exhibit 11, the African Nova Scotian Student Support Worker Guidelines, as evidence that a valid drivers license was a job requirement.

However, given the document itself, and C.C.’s evidence, I reject the inference that a car was required to drive students. [ 91 ] The accused testified that he met the complainant at the beginning of the school year, in September, 2015. He met her in his office with two of her friends. He said the complainant was falling behind in math. This was brought to his attention by teachers. She would come to his classroom to catch up on her work. He also used PowerSchool to show her what assignments she had not completed.

He said the complainant mainly communicated with him through text, and that she came to his office from time to time. [ 92 ] The accused confirmed the evidence of the complainant that at times the students would come to his office and ask him to drive them to Quinpool Road or Spring Garden Road to go to McDonald’s, Subway, or Burger King. He did not see any problem with this, and said he did it for several years. He would drive students to get food, and then drive back to the school to eat. He testified that “a couple of times” it was only the complainant and him that went to get food.

This contrasts with the complainant’s evidence that the date of the alleged offence was the first time the two of them went alone. [ 93 ] The accused testified he was notified by teachers about a week before the day in question that the complainant had not been in class and he was asked if he knew what was going on. He said the Vice Principal asked him to reach out to her. He contacted the complainant and she said she would tell him when she returned to class. She texted him on December 15, 2015, and said she had returned.

He testified she asked him to go to lunch so they could talk about the situation and she could tell him what was going on. This differs with her evidence. [ 94 ] The accused testified that he contacted the complainant at 11:42:48 a.m. to let her know that he was parked in the front of the building waiting for her. He said she arrived at his car within a couple of minutes. He suggested they go to McDonald’s, but she said she would rather go to Burger King. He said it took approximately ten minutes to drive there, travelling on Agricola Street and turning

on Young Street and then Kempt Road. He said it took about five minutes to order and receive their food. [ 95 ] The accused denied that the complainant paid for his meal, and said they both paid for their own food. He said they sat on the drive-through-side of the building, two booths from the back, and talked. He asked her about why she had missed time from school and she told him that she had an abortion. He said he told her that everyone makes mistakes, and counselled her to get through it and concentrate on her studies.

They discussed how she would make up for the missed assignments. [ 96 ] The accused denied asking the complainant sexual questions. He said there was no other discussion. He testified that they both ate. He said they were at the restaurant for 20 minutes, but had a very brief conversation. He said they then left and went back to the school, travelling down Robie Street to Cunard Street, then Agricola Street to Trollope Street. He said it took ten minutes to drive back. [ 97 ] There is a good deal of time not addressed by the accused.

He described a brief conversation, but said they were in the restaurant for 20 minutes. He did say what they spoke about besides the complainant’s situation. He denied that they spoke about anything of a sexual nature. [ 98 ] The accused denied driving to the North End, and denied that any sexual acts happened. He denied commenting on the complainant’s rings, and denied taking her hand and putting it on his genital area.

He denied telling her to get in the back seat; and denied getting into the back seat with her, undoing her clothing, and forcing her to perform oral sex. [ 99 ] The accused testified he did not recall any discussion in the car on the way back to the school. He testified that he did receive a call in the car, when they were about a minute away from the school. The call was from his wife’s work number and lasted for four minutes and two seconds. He thought they were probably on Agricola, close to the school, at the time. [ 100 ] The call from the complainant’s cell phone at 12:42:59 p.m. lasted 37 seconds.

The accused said she was late for class and he told her to tell the teacher she was late because she had been with him. [ 101 ] The accused was then asked about a text to him from the complainant at 19:08:25, and additional texts that continued until 21:09:52, Eastern time. The accused testified that the texts were in relation to her catching up in school. He said he spoke to her math teacher at the end of the day and found out that there was a test she could do the next day in the morning or after school. He said he also explained the other assignments to her.

He said he told her that her mother could explain to the school, they would not penalize her, and she could get caught up on those assignments. This evidence was not put to the complainant during cross-examination. [ 102 ] On cross-examination, the accused testified that his professional relationship with the complainant was as involved as with the other students, but not more so. He said his role was to navigate these students through the high school years.

However, his claim that his contact with the complainant was no more extensive than with other students is undermined by the phone records, and the number of contacts between the phones. [ 103 ] The accused recalled that math was the first course the complainant was falling behind in. He was not sure what the second one was. He testified that to help her in a course in which she fell behind, he would have her in to look at Power School, showing her the marks and the assignments in which she was falling behind. He would also speak with the teacher to find out how she could do those assignments.

He did not help her, but could advocate with a teacher to allow her to turn those assignments in. He did not recall the assignment regarding which he advocated on her behalf. [ 104 ] On March 22, 2016, the accused gave a statement to a police officer, Cst. Dianne MacDonald, in which he said he could not remember who brought up the fact that the complainant had an abortion. At trial, he testified that on the morning of December 15, he did not know that she had an abortion, and only learned about it from the complainant while at Burger King.

However, when police asked him who brought up the topic of the abortion, he said he could not recall. He explained that he was trying to recall everything and was concerned about giving accurate statements to the police. He testified that at the police station he was under arrest and was “thrown off”. This may very well be, but this does not adequately explain this discrepancy. His explanation lacks the markers of credibility. [ 105 ] In his statement, the accused said nothing out of the ordinary stuck out about December 15, 2015.

This is despite his evidence that as a male support worker, out to lunch alone with a female student, she told him for the first time that she had had an abortion. He explained that in his nine years at the high school there had been a student who had a mental breakdown which required him to take the student to the hospital, as well as outbursts at the school involving drugs, bear mace, and other incidents.

He said this would have been just something he dealt with. [ 106 ] The accused did not agree that being a male student support worker alone with the complainant when she disclosed this put him in an awkward position. He said she had it under control, with her mother involved. He agreed that nothing in his background helped him deal with female reproductive health or mental health issues, but he refused to agree that this was an out of the ordinary event. [ 107 ] The accused testified that he did not need to be mindful of being alone with a female student.

He said all males and females must be mindful of that on their own. He said he was mindful of that on his own and it was not discussed in his training. He agreed that discussing an abortion was a sensitive issue. He did not agree that speaking with an 18-year-old young woman about an abortion was a particularly sensitive issue. He did not agree that a public restaurant was not an appropriate place for that discussion.

He did not think having the discussion with a student in a public place was problematic. [ 108 ] A lot was made about whether the accused should have been taking students in his car alone to lunch or other places for that matter. A lot of time was devoted to reviewing documents and hearing from other witnesses about what the standard was or what was understood. It was clear that the accused held a different view than certain other witnesses. However, ultimately this is irrelevant to my consideration. Whether he should or should not have taken a student alone in his car, is not the question or the charge.

The issue is whether the Crown has proven that a sexual assault took place on December 15, 2015. [ 109 ] The accused denied that he was playing slow R&B music in his car. He said the station on in his radio, “The Heat”, does not play slow music. He agreed that it was R&B music, but said the radio station plays upbeat R&B.

[ 110 ] The accused agreed that the majority of conversations with students were by text, as was the communication with the complainant. He was asked to agree that she almost never called him, but he said he would not say never. He was then referred to the March 22, 2016, statement to the police, where he said he did not recall phone calls, and did not think the complainant made any phone calls to him. [ 111 ] The accused confirmed, in his direct evidence, that the complainant called him because she was late to class and he told her to tell her teacher she was with him.

He agreed that a phone call from her was unusual. He said he did not believe he was late returning to school after lunch on the day in question. He qualified this by saying she was late, not him. He said he answered the Constable’s question, which was whether he was late returning from lunch. He told police he was on time returning from lunch, and said there would never be a time he would return late. He did not answer whether the complainant was late. I am not convinced by his explanation.

There is an inconsistency in his evidence to the police and to the Court. [ 112 ] The Crown took the accused through the contacts between his and the complainant’s phones in December, 2015. On December 3, there were 25 contacts; on December 7, there were 10 contacts; on December 8, there was one contact; on December 9, there were 29 contacts; and on December 10, there were 17 contacts between the phones. There were no contacts between December 11 and 13. On December 14, there were 27 contacts between the phones.

On December 15, the day of the alleged sexual assault, there were 186 contacts between the complainant’s and the accused’s phones. Once the accused was brought through all of the contacts between the phones and the time frame in which these took place, he was asked to confirm that his evidence was that during all of those texts on December 15, he was telling the complainant she would be able to write a test the next day. He then said that he believed there was more discussed than that, but that was part of it.

He testified for the first time that he was texting about a basketball game that night, but said he did not recall the rest of the conversation. He said he did not know the conversation took that long. He agreed that there was a two-hour uninterrupted text conversation back and forth. [ 113 ] In his statement to the police, the accused was asked whether he was texting with the complainant on the evening of December 15, 2015. He told them that he did not think so and that he could not remember, but on the stand, on direct examination he said he was texting about tests to be taken.

In cross-examination he added for the first time that he was texting about a basketball game. There was no explanation for this. These are inconsistencies that call into question his credibility. [ 114 ] In

summary, the accused told the police that he went to Burger King and had a conversation with a student about an abortion, and that this was nothing out of the ordinary. That evening, he had a two-hour back and forth text messaging conversation with the complainant, which he could not recall during police questioning. But, at trial he could recall the conversation, and in addition, he added detail on cross-examination.

This was not explained, and I find the addition of detail affects the reliability and credibility of his evidence. [ 115 ] The Crown took the accused through the contacts between his and the complainant’s phones from December 15, 2015, until January 17, 2016. The Crown then put to him that contrary to his statement to the police, his relationship with the complainant was not professional and was not the same as those he had with other students. The accused insisted that it was not different. He had told the police he did not text with her any differently than with the other students.

The police asked if students texted him at night. He said no. He told them that students would text him during the day and for lunch. He testified in court that this was the answer he gave at the time based on what he could remember. It was clearly not accurate. [ 116 ] In testimony, the accused agreed there were text messages at night with the complainant, some after midnight. Their text exchange on Christmas night lasted until after midnight. [ 117 ] There were contradictions between the telephone exhibits and the statements the accused gave to the police about his interactions with the complainant.

There were differences between the statements he gave to police and his evidence given to the court. The Defence appeared to admit the accused was not truthful in relation to his contact with the complainant. This affects the assessment of the reliability and credibility of his evidence. [ 118 ] There were more than some problems with the accused’s evidence. His statements to the police were shown to be inconsistent in many instances.

With regards to driving students off-campus for lunch, his evidence that this was in keeping with his role and that it was permitted goes to his credibility, in view of the other evidence on these points. His evidence that the conversation in which the complainant disclosed that she had an abortion was not significant further reduces his credibility. [ 119 ] The accused’s evidence contained inconsistencies and unconvincing claims.

He claimed that there was nothing special about his relationship with the complainant, and that it was no different than his contact with other students, despite there being over 630 contacts between their phones between December 3, 2015, and January 17, 2016. It is disingenuous to describe this as normal contact between a student and a support worker without an explanation or a reason for such extensive contact.

The accused told police he did not recall texting the complainant the day of the incident, nor that night, saying they only did so during school hours, but there were text exchanges lasting two hours, with 186 contacts between their phones on that day. His evidence is not credible on the question of these phone contacts and his lack of recall is not explained. [ 120 ] The accused was adamant in telling the police that he was not late returning from lunch on December 15, 2015. Again, this was inconsistent with his trial evidence.

At trial, he testified he received a phone call from the complainant about being late to class, which he said was unusual, because their contact would usually be by text. This is something one would expect him to recall. An unusual meeting with a student alone at lunch, speaking about an abortion, and then a phone call about her being late.

Instead, he told the police they were not late and then testified that he recalled the phone call and its content. [ 121 ] Another inconsistency between the accused’s evidence and his police statement was that during his police interview, he said he could not recall who brought up the issue of the abortion, but he testified in court that the complainant brought up the topic because he did not know about it. Law and Analysis

[122] To find the accused guilty of sexual assault, the Crown must prove each of the essential elements beyond a reasonable doubt. Thefollowing are the essential elements: 1. That the accused intentionally applied force to the complainant; 2. That the complainant did not consent to the force that the accused applied; 3. That the accused knew that the complainant did not consent to the force that he applied; and, 4. That the force the accused intentionally applied took place in circumstances of a sexual nature. [123] R. v. Nyznik, 2017 ONSC 4392, provides the legal framework to follow in this matter.

Credibility [124] In Baker-Warren v. Denault, 2009 NSSC 59, the Court made the following observations about credibility, at para 19: With these caveats in mind, the following are some of the factors which were balanced when the court assessed credibility:

a) What were the inconsistencies and weaknesses in the witness' evidence, which include internal inconsistencies, prior inconsistentstatements, inconsistencies between the witness' testimony, and the documentary evidence, and the testimony of other witnesses: NovakEstate, Re, 2008 NSSC 283 (N.S. S.C.);

b) Did the witness have an interest in the outcome or was he/she personally connected to either party;

c) Did the witness have a motive to deceive;

d) Did the witness have the ability to observe the factual matters about which he/she testified;

e) Did the witness have a sufficient power of recollection to provide the court with an accurate account;

f) Is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonablegiven the particular place and conditions: Faryna v. Chorny (1951), (BC CA), [1952] 2 D.L.R. 354 (B.C. C.A.);

g) Was there an internal consistency and logical flow to the evidence;

h) Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant, or biased; and

i) Where appropriate, was the witness capable of making an admission against interest, or was the witness self-serving? [125] Considerations of these factors are helpful to a court assessing credibility. However, it is not a perfect recipe for making findingsof credibility. It is worthy of mention that credibility assessments in sexual assault cases are particularly difficult. In R. v. Gagnon, 2006SCC 17, the majority of the Supreme Court considered the difficulty presented by assessments of credibility as follows, at paragraph 20: Assessing credibility is not a science.

It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is whythis Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptionsshould be respected. [126] In R. v.

R.E.M., 2008 SCC 51, the court commented as follows at paragraph 49: While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on aparticular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize.Furthermore, embellishing why a particular witness's evidence is rejected may involve the judge saying unflattering things about thewitness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting hisevidence and convicting him, but adding negative comments about his demeanor.

In short, assessing credibility is a difficult and delicatematter that does not always lend itself to precise and complete verbalization. [127] The assessment of credibility was recently discussed in R. v. W.N., [2019] N.J. No. 23 (Prov. Ct.), as follows: Assessing Credibility: 53 There are two essential elements to a trial judge's assessment of credibility. Firstly, an acknowledgement of our limitations indetermining who is or is not being truthful. Secondly, an understanding of the importance of providing detailed reasons for ourconclusions. In R. c.

Cedeno, 2010 QCCA 2359 , the Quebec Court of Appeal, for instance, said that judges "have the duty andthe obligation to provide reasons for their conclusions on the issues in dispute in order to explain the decision to the parties, to providepublic accountability and to permit meaningful appellate review" (at paragraph 52). In R. v. D.D.S, 2006 NSCA 34 , the NovaScotia Court of Appeal pointed out that "[c]enturies of case law remind us that there is no formula with which to uncover deceit or rankcredibility.

There is no crucible for truth, as if pieces of evidence, a dash of procedure, and a measure of principle mixed together byseasoned judicial stirring will yield proof of veracity" (at paragraph 77). [128] In addition, it is important to note, that while I have considered demeanor, I have placed little weight on the demeanor ofwitnesses, given that demeanor is not always a good indicator of credibility (R. v. Norman (1993) (ON CA), 16 O.R.

(3d) 295 (Ont. C.A.)). I note that "it is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom" ( R. v. Dyce , 2017 ONCA 123 , at para. 12 , citing R. v. Rhayel , 2015 ONCA 377 , at para. 85 .). I must be careful not to view the way a person answers a question, for example with sarcasm, as necessarily a reflection on credibility. [ 129 ] The evidence of the accused and the complainant cannot be reconciled.

Their evidence was similar in regards to some of the surrounding circumstances, but is starkly different in relation to other points, and particularly on the core allegations. Therefore, I must apply the principles set forth in R. v. W.(D) , supra, cited earlier. [ 130 ] The sum total of the inconsistencies in the accused’s evidence results in my finding that much of his evidence is unreliable and I do not accept his evidence on certain points. I accept that he received a call from his wife at 12:30:55 p.m. The phone records are there.

I accept that he received a call from the complainant about being late at 12:42:59 p.m. However, much of his evidence is affected by the inconsistencies, and his refusal to make admissions, as outlined above. Having rejected much of the accused’s evidence, and having concluded that the inconsistencies between his police statement and his evidence in court impact his reliability and credibility, I conclude there has not been a reasonable doubt raised by his evidence. That does not end the analysis of course. The question is whether I am left with a reasonable doubt by any of the other evidence.

Timeline [ 131 ] I will turn now to discuss the timeline concerning these alleged events. The accused and the complainant gave different timelines in relation to their visit to Burger King. [ 132 ] The complainant agreed that they left for lunch after a call the accused made to her at 11:42:48 a.m. She agreed that there was a call from her phone to his at 12:42:59 p.m. for 37 seconds. She did not recall what that call was about, and insisted it was likely a pocket dial. She did not confirm that she was back at school at that time, but did not deny it either.

The accused testified that the complainant called to tell him she was late for class, and he told her to tell her teacher she was with him at lunch. I accept the timeline for the events start after 11:42:48 a.m., and likely ends before 12:42:59 p.m. The complainant testified that when she texted the accused at 1:05:19 p.m. she would not have been with the accused but at school. In addition, there was a call from the accused’s wife lasting 4:02 minutes at 12:30:55 p.m.

The complainant testified that she did not remember that call, but I accept the accused’s evidence that he was almost back to the school when he received this call. This means the alleged events could only have occurred after 11:42:48 a.m. and before 12:30:55 p.m. [ 133 ] On direct examination the complainant gave the following time estimates: 1. Between five to ten minutes to drive from the school to Burger King. 2. 10 to 15 minutes in the Burger King line. 3. 15 to 20 minutes or 10 to 15 minutes to eat. 4. While driving after they left Burger King, her hand was on his genital area for between 10 and 15 minutes.

She then said it could have been 30 seconds or a minute. 5. After they parked, she was forced to perform oral sex for 10 to 15 minutes. However, on cross-examination she said it was quick, definitely less than ten minutes, and then said it may have seemed longer than it was, and she could not say how long it lasted. [ 134 ] The complainant’s timeline ranges from about 35 minutes to an hour. This is a wide range of time. A timeline of 35 minutes would be possible between the time of the call at 11:42:48 a.m. and the call from the accused’s wife at 12:30:55 p.m.

However, a time estimate in excess of 45 minutes would raise a reasonable doubt, in view of all the circumstances, such as the timing of the phone call from the accused’s wife. [ 135 ] The accused’s timeline could be plausible in the time between 11:42:48 and 12:30:55. He testified that: 1. The drive to Burger King took about ten minutes. 2. It took five minutes to order and receive their food. 3. They were in the restaurant for 20 minutes. 4. It took ten minutes to travel back to the school. [ 136 ] In total he estimated 45 minutes.

His timeline is plausible. [ 137 ] The Defence asks me to find the complainant not credible because of the time and location where she alleges the sexual assault occurred. They argue that her evidence that this occurred in a residential neighbourhood should not be accepted. I heard no reason why this could not be credible.

The location of the alleged incident in a residential neighbourhood alone does not raise a reasonable doubt in my mind. [ 138 ] The Defence argues that by 12:30:55 p.m. when the accused’s wife called, the accused was close to the school on Agricola Street, and this does not support the complainant’s timeline as she says she was late to school. Further, they argue there is not enough time for what she claims happened to have happened. [ 139 ] The time line the complainant gives is wide-ranging. That on its own may not raise a reasonable doubt, but there are further issues that must be taken into account.

The Complainant’s Lack of Recall and Inconsistencies [ 140 ] It must be understood how difficult it can be for a victim to complain about sexual offences. Thus, the complainant’s credibility is not impacted in the slightest by her failure to complain earlier, her contact with the accused after the day of the alleged events, or her decision to continue texting him. Victims of offences do not all act the same way. [ 141 ] The complainant could not recall many things while testifying in court.

Some of these were collateral issues and unimportant, and others related to events that were understandably not things one would be expected to recall as a matter of common human experience. Others, however, involved more important details of the events of the day, which could not be spoken to: 1. The complainant could not recall how many times she contacted, or was in contact with, the accused from the start of school on December 15, 2015, until lunch. 2. She could not recall what class she had in the morning of December 15, 2015. 3. She could not recall when lunch started and ended. 4.

She could not recall her class schedule. 5. She could not recall whether she told the accused she had an abortion prior to them having lunch on December 15, 2015. 6. She could not recall whether the accused was already in his car at the side doors of the school. 7. She could not recall the route they travelled from the school to Burger King. 8. She could not recall the route they travelled after they turned left out of the Burger King parking lot. 9. She could not recall their conversation between the school and Burger King. 10. She could not recall whether she was texting while in the accused’s car. 11.

She could not recall if she was texting at Burger King. 12. She could not recall if there was any conversation in the car after the alleged assault and when they arrived at the school. 13. She could not recall when she arrived back at school. 14. She could not recall the accused receiving a call from his wife while they were in the car, despite the fact that the call lasted some four minutes and two seconds. 15. There were texts between the phones in the morning of December 15, 2015.

While she recalled asking if the classroom was open to her to use, the complainant could not recall the content of the other texts. 16. She could not recall the content of a text she sent the accused after the alleged assault at 1:05:19 p.m.. She speculated about its content. 17. She could not recall her entrepreneurship teacher. 18. She could not recall how much time was left in the class when she arrived after lunch. 19.

She could not remember a call to the accused’s phone at 12:42:59 p.m. that lasted 37 seconds. [ 142 ] While some of these examples alone are not problematic, when taken together the complainant’s lack of recall around the totality of the events causes concern. In addition, the effort with which the complainant criticized the accused’s work as a support worker struck me as perhaps a means of collaterally detracting from his credibility. [ 143 ] I now turn to the inconsistencies I noted in the complainant’s testimony, including inconsistencies between her trial evidence and her statement to the police: 1.

In court, the complainant said she did not see or hear anything around them while parked on Merkel Street. In a statement to Cst. MacDonald, she mentioned a car or truck. 2. On direct examination, the complainant described the accused asking her and then directing her to get in the back seat. On cross-examination she then elaborated that he used an aggressive tone and pointed to the back seat. 3. The complainant testified that she had gone to lunch with C.C. This is inconsistent with the evidence of C.C., which I accept. 4.

The complainant testified at first that she did not respond to the accused’s inappropriate questions at lunch and later said she did not recall whether she responded. 5. There seemingly is an inconsistency in the complainant’s evidence about whether she stopped eating when the accused asked about an abortion, or when he asked inappropriate sexual questions. [ 144 ] Once again, none of these additions to her account, or apparent inconsistencies, is in any way determinative on its own. Rather,

the concern is with their cumulative effect, when viewed in the context of all the other evidence, I also have a concern about the inconsistency between the close in time reporting to the complainant’s then boyfriend, M.D., and her evidence in court. Her reports to M.D. were inconsistent with her evidence in court in several ways: 1. She told M.D. that the drive was in the afternoon when the accused drove her and others home and she was the last one to be dropped off. 2. She told M.D. that others were initially in the car with her. 3. She told M.D. that the accused touched her leg during the drive. 4.

She told M.D. that she was crying and screaming “no” the entire time. 5. She told M.D. that her assailant was a teacher. Her evidence at trial was he was a student support worker. 6. She told M.D. that he asked her to undo her shirt. 7. There is an inconsistency in her accounts of the sequence of the unbuttoning of her shirt and then getting into the back of the seat. 8. She told M.D. that the accused’s phone rang while this was happening. 9.

She told M.D. that she told a therapist, but said her assailant was a friend, and not a student support worker. [ 145 ] The complainant testified that she was embarrassed and admitted that part of what she told M.D. was accurate and part of it was not. She said she did not want to seem fragile and she did not want M.D. to look differently at her. [ 146 ] The differences in this prior statement and the in-court evidence causes me concern. [ 147 ] There are many differences in the account to M.D. We have a blanket explanation for that.

I did not hear evidence about why each of the inconsistencies are present and why I should not be concerned about them. If I had received such evidence I may very well have been satisfied about why there were so many inconsistencies in that text exchange when viewed against the other evidence. I did not have that evidence and cannot make any assumptions. I do accept that victims of sexual assault may not tell all or may not give accurate reporting based on such feelings as embarrassment. However, I must weigh the totality of the

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