Ontario Court of Justice
Court File No.: Central East - Newmarket 13-03242 Date: 2014-07-29 Citation: R. v. R.G., 2014 ONCJ 607
Between:
Her Majesty the Queen
— AND —
R.G.
Before: Justice P.N. Bourque
Judgment
Released on July 29, 2014
Counsel:
M. Dionne, for the Crown D. Mideo, for the accused, R.G.
BOURQUE J.:
Overview
1The defendant is charged with a total of 4 counts, ranging from sexual assault and sexual interference with a person under 14 years. It is alleged that the events took place between 1993 and 1995. It is alleged that in that period, he continued an intimate consensual relationship with a girl whose age ranged from 11 to 13 years while he was between 25 and 27 years of age. It is conceded by the defence that none of the provisions of section 150.1 of the Criminal Code apply here to afford the defendant a defence of consent. The issues turn solely on the question of the credibility of the witnesses and applicable burdens of proof.
S.S.
2. . . is now 32 years old and is employed in a group home for deaf and blind people. She states that when she was about 11 years old, she and her family moved to her uncle's home. Staying at that home was the defendant, who worked in a scrap metal yard, which was the family business. After staying in that home for about a year, her family moved to a house right behind the uncle's house.
3She stated that upon moving into the house she developed a "crush" on the defendant. She stated that the defendant would play fight with all of the children in the home on many occasions (there were 5 of her siblings in the home with her parents).
4She stated that the defendant would go out on Thursday nights with his friends to bars and one night he returned home and when she was sleeping, came into her room and touched her on her back. She did not recall anything else happening and he left.
5After this, she stated that the defendant would come into her room at night (usually after her parents went to bed) and he would kneel by the side of the bed or lie down beside her. She said this happened every week maybe two times. She stated that he would rub her back and stomach and chest and sometimes they would kiss. She described the relationship developing as "boyfriend and girlfriend".
6She stated that she and her family moved to a house very close by. It was actually right behind the house they left. She felt that she and the defendant were "boyfriend and girlfriend" and they would meet in the garage or other rooms where no one else was. It was a mutually secretive relationship. She did relate that on one occasion when the defendant was "kissing" her exposed breast her sisters Nevada and Roxanne chanced upon the scene. She did not describe any repercussions from that. She also stated that her mother came into her room one time when the defendant was with her and they were cuddling. She stated that her mother "gave her shit". There is no indication that her father was informed of any of this as he would have taken steps against the defendant.
7She describes and incident in the living room of their new house, where he performed oral sex upon her. She describes that she performed oral sex upon him on at least one other occasion. She stated that he performed oral sex upon her several other times. She was very unclear about most events but did describe the event in the living room, and stated that they were watching "wrestling" at the time. She also stated that they would see each other and "cuddle and kiss".
8She told her friend L.B. what was going on. On one occasion, when L.B. was at her house, she arranged to go to the defendant's home by telling her mother she was going to the nearby store. While at the defendant's home she engaged in sexual intercourse with the defendant in his room, while L.B. watched TV in the adjacent living room.
9She stated that was the only time she had sexual intercourse with the defendant. She states that she took her clothes off and only remembers him being on top of her. She also states that he asked her if his semen was warm.
10She states that once she was in grade 9 and realized that this behaviour was not appropriate and did she stopped seeing the defendant. She stated that all of her actions were consensual, but that he had taken advantage of her because of her age. She stated that the defendant was in his 20s when she was 11 and that this went on until she had just turned 14 years old.
L.B.
11The witness is now 32 years old and was the complainant's best friend when they were 11 to 14 years of age. She stated that they became good friends in grade 6 and stayed good friends until they went to different high schools and they lost touch. In fact, this witness says that she had not spoken to the complainant from that time until this, when the complainant called her to apologize for not letting her know that the police were going to contact her. She says other than that conversation, the only other time she has spoken to the complainant since grade 8 was when she met her in court today. She was not challenged on this assertion.
12She stated that she would visit the complainant's home when she was living with her parents. She stated that she would often observe the defendant coming up to the complainant and kissing her neck and pushing himself against her and "touching her where he probably should not have". She confirmed that the complainant told her about her relationship with the defendant and she stated that she also saw them kiss at other times. She stated that "it was a big thing that they had to hide their relationship". S.S. told her to keep it a secret as no one would like it if they knew.
13She asked S.S. if she thought he was too old for here but S.S. seemed to be okay with it. She never told anyone (other than the police who contacted her in 2013) about any relationship between the complainant and the defendant. In cross-examination, she was questioned as to why she did not say anything about a relationship that was wrong. She denied it was because she had not seen anything but stated: "she asked me not to tell, being 11 and 12 years old (at the time), I didn't think that he would try to hurt her".
14She describes an incident where she and the complainant went over to the defendant's home and the complainant and the defendant went to the back of the house were the bedrooms were and stayed there for half to three-quarters of an hour. She stated that she was watching TV and did not hear or see anything specifically going on. She stated that when she and the complainant were walking home, the complainant told her she had had sex with the defendant.
D.S.1
15. . . is 28 years old now and was between 7 and 11 years of age between 1993 and 1995. She is the sister of the complainant.
16She stated that when they lived at the uncle's house, she remembers very little other than who lived there. She describes the house as small with some 10 people living there, including the defendant. She stated that she treated the defendant as a member of the family.
17She stated that she and two sisters slept in the basement. She did not correctly identify the bedroom of the complainant in examination in-chief. She stated that she thought that the complainant and the defendant were "close" although she did not mention any actions which exemplified this conclusion. She stated however that they would all play together many times, including the defendant. The complainant told her many years later that she had had a sexual relationship with the defendant. She made no direct observations of any untoward conduct between the complainant and the defendant.
H.S.
18. . . is the father of the complainant. He described the home scene at the home of his brother's in 1990-1991. He lived there with his wife and 6 children. The defendant lived there as well. He described that they would have parties with friends on the weekends and stated that there would be alcohol and drugs. He stated that he thought the defendant and his children all got on, although he described the defendant as a "whiner" and would complain about things (mainly at their work). He confirmed that payday was every Thursday and that he and others, including the defendant, would meet for a drink after work.
19He was not aware that his daughter was having some sort of relationship with the defendant. He did, however, at the close of his testimony volunteer (without specifically being asked) that he had seen the defendant lying on a bed with his daughter in his daughter's room on one occasion. He, however, stated that he "thought nothing further of it". I can only assume that he did not think at the time it was significant, and I would give this observation little weight.
D.S.2
20. . . is the uncle of the complainant and he owned the house that her family lived in for a year or so. He confirmed the layout of the house but he simply thought that everyone got along and he was not aware of any relations between the defendant and the complainant.
R.G.
21. . . the defendant testified in his own defence. He is 46 years old. He is therefore more than 14 years older than the complainant.
22He states that he has a criminal record which includes two drinking and driving offences, one breach of probation, one fail to comply and one conviction for sexual assault in 2012. He admitted this record.
23He was living in the house of D.S.2 when H.S. and his family moved in. He said they were there for about a year. He confirmed the layout of the bedrooms of that house as contained in Exhibit 1 which was drawn by the complainant, and specifically that his bedroom is beside the complainant's bedroom.
24He stated that he worked at I[…], which was owned by the complainant's grandfather. He stated that many S. worked at the premises and did not get along with them. He stated he had a fight with the complainant's brother and an argument at work with the complainant's sister. He stated that he did a lot of cocaine and other drugs but less alcohol. He agreed that they would be paid on Thursdays and sometimes he would go with the other workers for a drink or get some drugs, and come back to the house and party. He described the scene (like all the others) as a party house on the weekends.
25He stated that he was like a big brother to the children, including the complainant, who was several years older than the other children. He described it in somewhat idyllic terms, with him being the only one who would fix their toys and they would all gather round as he fixed them. He stated that he would play fight with them and that the children would "cuddle" up to him. He denied that the complainant ever cuddled up to him without the other children being present.
26With regard to the complainant's allegations of the many sexual improprieties during this period, he denied them all. He was never alone in the complainant's bedroom, never had sex with her, never gave her oral sex, never kissed her on the lips, hugged her from behind or felt her breasts, and never followed her into the bathroom. He also denied that L.B. whom he only remembers seeing once at the complainant's house, would have seen him kissing the complainant or coming up behind her and rubbing up behind her. He denies that L.B. ever came to his house.
27He was however aware that she had a crush on him and that she thought she was his girlfriend. The defendant never explained how she manifested these feelings and had only once ever expressed feelings verbally for him. It was his evidence that he just knew that that was the case.
28He did, however, admit that he was, for several years carrying on a sexual relationship with S.S.'s mother. He stated that they would meet in a van on the property or go out into the field to have sex. He believed their affair was completely secret, and the complainant would not have known about it. I would note here that no other witness ever mentioned anything about this (even H.S., the ex-husband).
29When asked about his alcohol and drug use, he at first just spoke of them generically, but when pressed in cross-examination, he stated that he mostly did cocaine because it kept him awake and you can remember everything.
Analysis
30The burden remains upon the Crown to prove the charges beyond a reasonable doubt. As stated in R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320.
Reasonable Doubt
The standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence:
Reasonable doubt is not a doubt based upon sympathy or prejudice:
Rather, it is based upon reason and common sense;
It is logically connected to the evidence or absence of evidence;
It does not involve proof to an absolute certainty, it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and
More is required than proof that the accused is probably guilty - a (Judge) jury which concludes only that the accused is probably guilty must acquit.
31Where, as here, the defendant testifies, and provides a denial which believed would afford him a defence, I must apply the doctrine of R. v. W.D.1 in assessing his evidence.
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
32I have the following difficulties with the defendant's evidence and the following issues impact negatively on his credibility:
(a) By his own admission, he was a significant user of cocaine, and partook of it more than once per week, and I also find that he used alcohol and other illicit drugs. His description of his relations with the children in my opinion goes much beyond a "big brother". There was significant physical contact with the children;
(b) His stated relationship with the complainant's mother confirms that he is capable of a furtive and secretive relationship while living in a crowded household, like the one described by the complainant;
(c) His statement of only seeing L.B. very few times is hard to believe when L.B. was at the complainant's house most weekends and for a lot of the summer. I also note that the houses were right behind each other;
(d) His statement that the complainant was not allowed to come over to D.S.2's house is not borne out by any evidence of D.S.2;
(e) Of most importance is his evidence concerning the fact that he believed that the complainant felt she was his girlfriend, but not giving any indication as to how she expressed that. Notwithstanding his saying they had but one conversation about it, he believed that this illusion on her part went on for the better part of 3 years. None of the other children expressed this to him. She was the eldest child. He completely denies that she manifested it in any physical or other contact with the defendant. This is hard to believe and makes it impossible to simply accept his denials.
33Having not accepted the evidence of the defendant, can it nonetheless leave me with a reasonable doubt? It does not. It is simply a denial and does not suggest to me an explanation which could be reasonable.
34I am again particularly thinking about the opportunity which this young woman presented to him. I also note his extensive evidence concerning the one time he said they were alone (at the new home watching a movie after the parents had gone to bed). Why remember this scene so vividly if nothing untoward happened?
35Having rejected the defendant's evidence, that does not end the matter for I must assess the evidence that I do accept to determine whether it leaves me with a reasonable doubt.
36The defences states that there is sufficient discrepancies in the complainant's evidence and sufficient discrepancies in the evidence of the other witness, that I cannot accept the evidence of the complainant and thus have a reasonable doubt about all of the charges. He points to the fact that the witness is not sure of dates and many specifics within that two and-a-half year period. Quite frankly, I would be amazed if a youthful participant in these activities happening with such frequency would have a clear recollection of all of them. She has specific memories of the first incident in the uncle's home, the sexual intercourse in the uncle's home (after she had moved) and the first instance of oral sex performed on her in the living room of the uncle's home.
37Defence points out that there are discrepancies in the discussions between the complainant and her friend L.B.. That may be so, but L.B. confirms two very important aspects of the matter, namely, that the defendant and complainant would kiss and hug when they weren't seen by others and there would be touching which was clearly for a sexual purpose, and that she went to the defendant's home with the complainant and the defendant and complainant went down the hall to the bedrooms together and did not return for half to three-quarters of an hour. While she did not witness the actual event, for her to recall this incident some 9 or 10 years after the event and after losing contact with the complainant for most of those years, speaks to how that event stuck in mind as being significant.
38The defence properly points out that the complainant says that her mother came into her room when the complainant and defendant were "cuddling" on her bed. The defence points out that while the complainant says her mother was angry with her, there is no indication that the mother ever told the father. I agree that could cause me to pause, unless of course the mother was indeed having an affair with the defendant.
39The defence also points to the complainant statement that she was discovered in the garage with the defendant when her sisters came in and there was no repercussion from that incident. Indeed D.S.1 in her evidence makes no reference to it at all. I think I would have to take into account that her sisters were very young children. A scene which was obvious to the complainant may not be obvious to a younger child. It is a discrepancy to be sure, but I do not feel that they are fatal to the assessment of the complainant's credibility.
40The defendant also points out that none of the other family witnesses in this case saw anything going on between the defendant and the complainant, that was such as to concern them. He points out that they lived in small houses and there would often be guests at the house. I do not find that aspect troubling as there was evidence from the complainant and L.B. that the defendant and the complainant were at pains to keep their actions secret. I also don't think it really impacts upon the complainant's testimony that in furtherance of the secretive nature of this relationship, she lied to her mother about going to the store when she was meeting the defendant in his bedroom. She was 13 or 14 years old.
41The complainant's testimony was not shaken in any meaningful way. She appeared to be candid in her responses to questions. She was in all respects a credible witness.
42The discrepancies and items which would affect her credibility are noted above. While they collectively could have left me with a reasonable doubt if there was no corroboration of the complainant's evidence, the evidence of her former friend L.B. has the effect of removing the doubts. The observations she made of the defendant and the complainant together and especially her attendance with the complainant at the home of the defendant, remove from my mind any doubt.
43Looking at the total scene, it is clear that this defendant was the recipient of the affections of a young girl. It is clear that he was aware that these affections continued and were not just a transitory thing. He had developed a close rapport with all of the children such that him hugging them was not seen to be untoward. He would then begin to take advantage of this girl's affections, slowly at first and then with greater abandon, is a logical outcome of this state of affairs.
Conclusion
44At the conclusion of the trial, the Crown stayed the charge of sexual interference by a person in position of trust and authority (count 4).
45The defendant will be found guilty of the charges of sexual assault, sexual interference with a person under the age of 14 years and invitation to sexual touching of a person under the age of 14 years.
Signed: "Justice P.N. Bourque"
Released: July 29, 2014
Footnotes
- (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) at pg 409.