R. v. Girard, 2016 ONCJ 406

ONTARIO COURT OF JUSTICE DATE: 2016·07·04 COURT FILE No.: Thunder Bay 143851 CITATION: R. v. Girard , 2016 ONCJ 406 BETWEEN: HER MAJESTY THE QUEEN — AND — Joseph Girard Before Justice Sarah Cleghorn Heard on March 7, 8, 9, 2016 Reasons for Judgment released on July 4, 2016 Molly Flanagan ....................................................................................... counsel for the Crown David Butt ............................................................... counsel for the defendant Joseph Girard Cleghorn J.: Overview [ 1 ] Joseph Girard is charged with sexual assault contrary to

section 246.1 of the Criminal Code . The allegation is historical in nature. The Crown elected to prosecute the matter by way of

summary conviction. [1] [ 2 ] On April 22, 1986 Mr. Girard was a police offer with the Thunder Bay Police Service. That evening he was on patrol by himself, in uniform, and operating a marked police cruiser. At approximately 11:00 p.m. he observed a motor vehicle pulled over at the Terry Fox monument that was located directly off of the highway in a designated scenic lookout. Given the time of night and the location of the vehicle, Mr. Girard decided to check on the vehicle. The driver of the vehicle was the complainant, J.C.

There was also a passenger in the car, T.K. [ 3 ] During his dealings with J.C. at the roadside, Mr. Girard concluded that she had been drinking. A roadside breath test followed, which resulted in Mr. Girard issuing J.C. a 12-hour license suspension. Given that T.K., the passenger, was also not sober enough to drive, Mr. Girard drove them to J.C.’s residence. [ 4 ] J.C. alleges that after dropping the women off, Mr. Girard contacted her by telephone early on the morning of April 23rd, purporting to need further information from her regarding his earlier investigation. Mr.

Girard suggested and J.C. agreed that he attend at her home once his shift was completed at around 2:00 a.m. [ 5 ] Upon arrival at her residence, J.C. testified that Mr. Girard entered her home and the two sat on the couch. She alleges that once on the couch, without any warning, Mr. Girard pinned her down and forced her to perform fellatio on him. According to J.C., she never saw or spoke with Mr. Girard again. She did not speak of the alleged assault until she finally reported the matter to police in September of 2013. [ 6 ] Mr. Girard testified in his own defence.

His description of the investigation that resulted in him driving J.C. and T.K. home that night essentially corresponds with the description of the night in question given by both women in their evidence. However, his account contrasts drastically with that of J.C. regarding what happened afterwards.

[ 7 ] Mr. Girard testified that at the end of his shift on the morning in question he reviewed his telephone messages at the detachment and found a message from J.C. After some thought he decided to call her. He testified that during their telephone conversation J.C. invited him to attend her home. He accepted that invitation. [ 8 ] Once at J.C.’s home, Mr. Girard testified that the two of them had a glass of wine and engaged in consensual touching and kissing. Mr. Girard denied that J.C. performed fellatio on him. [ 9 ] Mr.

Girard testified that after the events of that morning the two of them continued to have contact by phone, and only one further in person visit. On his account a relationship never developed between them. He cited an inability to find time to get together due to their conflicting work schedules as the reason. Analysis [ 10 ] The defendant testified in this case. With respect to the allegations that are the subject matter of the charge, his account is diametrically opposite to that of the complainant.

As a result, assessing the credibility of both the defendant and the complainant is essential to the determination of this case. In that regard, I intend to follow the analytical framework established by Supreme Court of Canada in its seminal decision of R. v. W.(D.) . [2] [ 11 ] Turning to the evidence of Mr. Girard, if I believe him then I must obviously find him not guilty. Further, even if I do not accept his evidence, I still must consider if it leaves me with a reasonable doubt. If it does, then I must of course find him not guilty. Finally, even if I reject Mr.

Girard’s evidence and it does not leave me with a reasonable doubt, I must still consider whether or not on the whole of the evidence that I do accept the Crown has proven the charge against him beyond a reasonable doubt. This process ensures that the burden of proof never (inadvertently) shifts from the Crown to the defendant. Ultimately, any finding of guilt must be prefaced solely upon the Crown successfully discharging its burden of proof beyond a reasonable doubt. [ 12 ] I will therefore begin my analysis by considering the defendant’s evidence. Mr.

Girard testified that at the time of the alleged offence he was working an 8-hour shift, starting at 6:00 p.m. and ending at 2:00 a.m. (I note that the Statement of Agreed Facts indicates that his shift actually commenced of 4:00 p.m. and ended at 2:00 a.m.). [ 13 ] Mr. Girard testified that his official interactions with J.C. were friendly and that he formed the impression that she was “flirting” with him. Upon arriving at J.C.’s home, Mr. Girard testified that she asked him if he would like her telephone number.

On his account, he told her that he could only write down a telephone number for purposes of a report and therefore he denied that he obtained her number while he was still on duty. Rather, he testified that he told J.C. that if she wanted to get a hold of him she could call the police detachment and leave her telephone number for him. [ 14 ] Upon his return to the police detachment at the end of his shift, Mr. Girard testified that he discovered that J.C. had left him a message with her telephone number. After some deliberation he decided to call her.

On his account, the two made plans for him to immediately attend at her home. His recollection is that he arrived there shortly after 2:00 a.m. Mr. Girard recounts that when he arrived candles were lit and J.C. poured them some wine. The two had a conversation on the couch where some consensual touching and kissing then took place. The night ended with reciprocal promises that they would contact one another. [ 15 ] Mr. Girard testified that in the period that followed their romantic interaction the two had a number of brief telephone calls and made some failed efforts to coordinate a further meeting.

They only managed to meet again on one further occasion. Although there were some further phone calls after that, Mr. Girard testified that they never managed to get together again because they were unable to reconcile their competing work schedules. [ 16 ] In

summary, Mr. Girard described an entirely chance and isolated romantic encounter. On his version of events, there was no fellatio. And, with respect to the sexual activity that did take place, it was entirely consensual. [ 17 ] Having watched and listened to Mr. Girard as he testified and, even more importantly, having considered the substance of his evidence, I do not believe him. I will briefly outline two of the principal reasons why I ultimately reject his evidence. [ 18 ] First, there is Mr. Girard’s explanation for why the events that evening were so memorable.

He claimed the events were imprinted in his memory because the vehicle passenger, T.K., vomited during the course of his brief interactions with her and J.C. while he was investigating their vehicle at the roadside. This, he claimed, was so unusual that it served to imprint the events of that evening on his memory. [ 19 ] Mr. Girard was a police officer for 29 years. During cross-examination, he conceded that “a lot of details were missing about this incident” from his police notebook.

In my view, his claim that a vomiting vehicle passenger during a routine traffic investigation is the reason he had such a detailed recollection so many years later defies common sense. I am simply hard pressed to believe that despite the passage of time, the uneventful nature of what would have been a routine traffic investigation, and the scant entries in his notebook, Mr. Girard would remember the events surrounding the investigation at the roadside and during the drive back to J.C.’s home with the detail that he claimed. [ 20 ] Second, and even more importantly, in my view, Mr.

Girard was very clear in his evidence that he would not have taken J.C.’s telephone number while he was on duty as this would have been unprofessional. He testified that when he returned to the detachment and saw J.C.’s message he paused before returning her call, debating whether to do so that night or to wait until a more reasonable hour. I find this evidence internally inconsistent. [ 21 ] If professionalism was the reason he decided against giving J.C. his number, as he claims, I am at a loss to understand where that same commitment to professionalism went only a short time later.

It was grossly unprofessional for Mr. Girard to visit J.C.’s home on the morning in question. This was a young woman who only a short time earlier he had been investigating, in his role as a police

officer. Based on his official actions earlier that night, he knew she was too drunk to drive. I am at a loss to understand how Mr. Girard’s sense of professionalism precluded him from sharing his phone number while on duty but served as no ethical bar to him then visiting J.C.’s home at 2:00 a.m., a young woman he had just investigated and who was drunk? This frankly makes no sense.

In my view, it amounts to little more than a self-serving rationalization for what was clearly very inappropriate and entirely unprofessional behaviour that fell well below the standard of how a police officer would be expected to behave, either in 1986 or 2016. [ 22 ] In short, I was unimpressed by Mr. Girard as a witness. I do not believe him nor does his evidence leave me with a reasonable doubt. [ 23 ] I must now turn to the totality of the remaining evidence to assess whether or not the Crown has met the burden of proving that Mr.

Girard is guilty of sexual assault beyond a reasonable doubt. [ 24 ] In contrast to Mr. Girard, J.C. testified that he was the one who contacted her in the early morning hours of April 23, 1986. She testified that during a phone call he requested a chance to meet with her, claiming he required additional information for the traffic stop that had occurred a few hours earlier. She agreed, given that he was a police officer and she had no reason to doubt his motives. [ 25 ] J.C. testified that when Mr. Girard arrived at her home shortly after 2:00 a.m. he was not in uniform.

She invited him in and the two proceeded to sit on the couch. J.C. described what occurred next as taking place very quickly. She testified that, without warning, Mr. Girard pinned her down on the couch using his arms and his legs to do so. On her account, Mr. Girard then unzipped his pants and forced his penis into her mouth; he then thrust himself back and forth, thereby forcing J.C. to perform fellatio on him. J.C. was unable to recall how long this assault lasted or how it ended. For example, she could not recall whether or not Mr. Girard ejaculated. [ 26 ] J.C. did not report the assault at the time.

It was over two decades before she decided to finally do so. She offered a number of reasons for the delay in reporting. First, she noted that at the time she was hoping to pursue a career in policing. She was very embarrassed by what happened and internalized her thoughts and feelings to a belief that if she could not protect herself from such an assault occurring how could she protect other members of society.

She described herself as feeling like a “fraud” and a “failure”. [ 27 ] Further, J.C. testified that by the late nineteen-eighties she had experienced some rather significant health problems that then took priority in her life. She cited those health issues as another reason why she delayed coming forward with her complaint. [ 28 ] In 2013, J.C. testified that she awoke one day with an epiphany, deciding that she no longer wanted to carry the burden of the assault which she described as having haunted her and decided “to give it back” by finally reporting these events.

Prior to finally filing an official complaint, J.C. testified that she had never told anyone about what had happened. [ 29 ] Having watched and listened to J.C. as she testified, and having carefully considered the substance of her testimony, I have concerns with respect to her evidence that give me reason for pause. [ 30 ] First, when J.C. reported the sexual assault to the Special Investigation Unit (“SIU”) she was without question directed by the investigators not to make contact with at least two potential witnesses that she had named, one of which was T.K. Despite this, J.C. reached out to both witnesses.

In explaining her failure to adhere to the request of the investigators, J.C. testified that “I am not a child or a dog”. During cross-examination, she denied that in reaching out to the potential witnesses she was trying to ensure that they did not contradict her version of the events. [ 31 ] In my view, J.C.’s decision to reach out to potential witnesses after being specifically asked not to do so by investigators is troubling. There are of course two ways of construing her actions.

It is rather possible that having been victimized as she claimed, she reached out to the witnesses out of a desire to tell them what had happened to her so many years earlier. On the other hand, it is indeed quite possible that J.C. was attempting to shore up the Crown’s case. I am unsure of her true motivation. Her actions, however, are rather concerning. [ 32 ] These actions are even more troubling, in my view, when combined with J.C’s concession during cross-examination that she initially requested that the SIU investigators not contact T.K. This is a puzzling request.

On her version, T.K. would have important information to share with the investigators that would have served to corroborate key aspects of her account regarding the relevant events. [ 33 ] J.C.’s request, when combined with her failure to adhere to the investigator’s request that she not contact T.K. herself, causes me to have significant concerns regarding her credibility.

The distinct impression created by this combination of events is that J.C. did not want T.K. to become involved in this investigation because she worried that she would contradict her. [ 34 ] My concerns regarding J.C.’s evidence also relate to the evolution in her account from her initial statements to the SIU investigators to her testimony in court. J.C.’s description of the events became more detailed in court then it was when she spoke to the investigators. She claimed that she recalled more detail with the passage of time, not less.

I should note that J.C. did testify as to a mild traumatic brain injury that occurred in the late nineteen-eighties, and she claimed that this impacted her short-term memory but not her long-term memory. Frankly, I fail to see how this would explain the development of further details in her account of the relevant events from the time she spoke to SIU investigators in the fall of 2013 and her testimony before me in 2016. [ 35 ] In the end, this is a case in which I have significant concerns regarding the credibility of the two key witnesses, the complainant and the defendant.

Although between the two competing accounts, I find the complainant’s version of events more probable; that is not the controlling standard. A finding of guilt requires that I be sure that the events transpired as the complainant alleged. On the whole of the evidence, I am simply unsure; I therefore have a reasonable doubt.

[ 36 ] Given this conclusion, it is unnecessary for me to address Mr. Girard’s Charter claim regarding the loss of evidence. [ 37 ] The charge against Mr. Girard is therefore dismissed. Released: July 4, 2016. _____________________________ Signed: “Justice Sarah Cleghorn”