WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: March 2, 2020

Toronto Region

Between:

Her Majesty the Queen

— and —

R.A.-M.

Before: Justice L. Feldman

Heard on: November 28, 2019, January 31, 2020

Reasons for Judgment released on: March 2, 2020

Counsel:

• M. Mandel — counsel for the Crown
• J. Juliana — counsel for the accused R.A.-M.

FELDMAN J.:

Introduction

1R.A.-M. entered not guilty pleas to charges of Sexual Interference and Sexual Assault. It is alleged that during a night the 15-year-old complainant, J.A., slept over at his home with his daughter, Jo., he touched her multiple times inappropriately and for a sexual purpose.

2The Crown called the complainant, her sister, K., and a police officer in support of its case. R.A.-M. testified in his own behalf. I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the burden of proof on the Crown.

The Evidence

3J.A. gave a video statement to the police about these allegations that she adopted at trial. She told the police she slept over at the A.-M. residence, a basement apartment, on September 2, 2019, at a time her parents were at their cottage. Her sister, K., age 21, and her boyfriend, An., were staying at the family home.

4Mr. A.-M. and his wife picked up the complainant at 11:30 p.m. after he had finished work. J.A. said she had previously slept over at the defendant's home about 10-15 times. She told the court the defendant had never previously said or done anything inappropriate, nor had he indicated any interest in her. She saw him drinking alcohol earlier in the evening before she went to bed.

5J.A. and Jo. were in their bedroom on the bed listening to music, being on FaceTime with their friends or watching Netflix on their phones. She believes they did not fall asleep until about 5 a.m. She recalls that Mr. A.-M. came in a couple of times to check up on them. She later said it was 3-4 times. The complainant told the court that on one occasion, the defendant and his wife came to the room because she had been emotionally upset for personal reasons and was crying.

6J.A. said that the last time he came in, Jo. was sleeping, while she was only half-asleep. She recalls the defendant turned off the lights and came over to the bed. She was on her stomach. She was wearing shorts and a sports-bra. She says she felt his hand go up her left thigh and touch her butt over her shorts. She got scared and rolled over closer to her friend who was laying next to the wall.

7J.A. told the court that the defendant got into the bed, at first just laying there on top of the covers. She was in the middle also on top of the covers. She was texting her friend, Ab., at the time about this on snapchat. She didn't save that exchange, but the police took a photo of her cell phone calls to Ab. that indicated a 26-minute call at 5:33 a.m. This was at a time she says the defendant got even closer and began to rub her back. She says she pushed his hand away and moved even closer to Jo.

8J.A. told the court that Ab. was advising her to leave and offered to call the police or her sister. She says she texted him back that she was too scared to leave but decided to do so after a few minutes because the defendant did not stop this behaviour. Ab. was not called as a witness.

9J.A. testified that Mr. A.-M. continued to touch her. He again rubbed her leg and put his hand inside her shorts up to her butt. She says she pushed him away. She claims he did this a few more times but she pushed him off, turning her head to see him.

10She told the police that the last time in this sequence, he put his hand on her back and tried to reach into her shorts but only got inside the waistband. She pushed him off. She says she was "freaked out" and crying but, oddly, Jo. did not wake up.

11J.A. says the defendant persisted. She says he put his leg over her and attempted to put his hand down the front of her pants. She felt his tongue on her shoulder as he kissed it. The defendant's DNA was found on her shoulder.

12J.A. says all of this finally moved her to push him off, tell him to "get the fuck off me" and get out of bed. She put on her sweats and slippers and left the room. Jo. was still sleeping. She denies that the defendant apologized and said it was a mistake.

13J.A. left the house and says she called Ab. on her way home. There, she woke up K. and An. She called the police shortly thereafter.

14J.A. testified that both Jo. and her mother called that morning. She says Jo. was crying and told her that her father had been drinking. Jo.'s mother got on the phone to say that the defendant was confused and drunk and thought he was in his own bedroom.

15K. told the court that she woke up in the early morning hours of Sept. 2 to her sister screaming at the back door to be let in. She persuaded J.A. to speak to the police.

16It is of note that J.A. is 5'1" and weighed 115 lbs. at the time. By contrast, the arresting officer, P.C. Simbert Charles, estimated the weight of the defendant's spouse to be 170-80 lbs. He heard Mr. A.-M. tell the booking Sgt. he had 4 beers that night.

The Defendant's Evidence

17Mr. A.-M. is 38. He is a permanent resident from Guatemala. At the time of these events, he held two jobs. I infer he lost his employment as a result of these charges.

18On Sept. 2, he was working as a cleaner at […]. His family was with him that day as his wife worked with him on occasion. He left work at 11 p.m. On their way home, J.A. called his daughter to ask if she could sleep over. He picked her up at 11:30 p.m. and took her home with them. He claims she had slept over 20-30 times, including on some weekends, deemed an exaggeration by the complainant.

19Mr. A.-M. recalls that the girls went to Jo.'s bedroom to watch Netflix. At some point, J.A. was crying and yelling about her boyfriend, so he and his wife went into the room to try and help her. He says he checked up on them once or twice after that.

20The defendant told the court he watched television with his wife and son until 1 a.m. when they went to bed. His son sleeps in their bedroom in a very small bed. He says he remained on the couch watching television until he fell asleep. He recalls opening 4 beers, but says he was not drunk.

21The basement apartment is small and has two bedrooms beside other. Queen-size beds are set up in the equivalent position in each room, both walls are white, and the closets are in the same location.

22Mr. A.-M. says he woke up in the early morning hours and was so tired that he did not realize he went into the wrong bedroom, nor that he got into bed with the two girls. He insists the room was dark when he entered. He claims to have been honestly mistaken in touching the complainant multiple times for a sexual purpose.

23The defendant testified that he started hugging J.A. and rubbing her legs as he normally does, thinking it was his wife. She was facing the wall. He recalls her pushing his hand away but thought she was playing with him. He says that when his spouse objects to sex she usually says so, but that didn't happen here. He agrees his wife is noticeably larger than J.A.

24Mr. A.-M. claims not to recall everything because he fell asleep at times. At some point he heard someone jump off the bed and yell"get the fuck off me". He says he woke up and tried to apologize to the hysterical complainant who ran off.

25In this telling, he was light on the facts. When pressed in cross-examination, he agreed that: (1) he touched the complainant's butt; (2) when he rubbed her back, she pushed him off; (3) he put his hand into her shorts; (4) he threw his leg over her and kissed her shoulder.

26In all of this, he says he was unaware of a third person in the bed, as he was that he lay on the opposite side of the bed he normally does; that the multiple acts and rejections did not get his attention to the degree that he looked at his "wife" or said something to her; that in his gropings, he did not sense any of the differences, apparent in the photograph of his wife, as between J.A. and Ms. A.-M., as regards size, shape, weight or feel. The plausibility of the defendant's evidence on these material facts in issue is doubtful.

Positions of the Parties

Position of the Defence

27Mr. Juliana submits that his client had a reasonably held, but mistaken belief that he was in his own bedroom touching his wife at a time he had just woken up, was exhausted and feeling the effects of alcohol. He makes a number of points in support of his position, including that his daughter's bedroom was dark and essentially identical to his own, but for the fact that the bed was on the opposite wall; that his wife and J.A. were similar in height and weight; that that the defendant and his spouse often engaged in non-verbal intimate contact; that the complainant was facing away from him when he kissed her shoulder; that despite multiple sleep-overs this had never happened before; that the complainant's evidence was not reliable; that the defendant was not shaken in cross-examination; and that his evidence might reasonably be true.

Position of the Prosecution

28Ms. Mandel concedes there is an air of reality to Mr. A.-M.'s defence of honest mistake of fact [1] that the Crown must negative as part of its burden of proving that the defendant knew he was touching the complainant without her consent. She says the complainant's evidence was credible and should be accepted. She submits that the defendant's evidence that he remained half-asleep and unaware as he groped J.A. multiple times, and that he discerned no physical difference as between his wife and the complainant, is not plausible.

Witness Reliability

29I found J.A. to be a credible witness who gave her evidence in a straightforward manner without embellishment. She did not allege prior sexual interference. She was not seriously challenged on the material allegations.

30Purported inconsistencies raised by the defence were for the most part peripheral or a matter of semantics. For example, when J.A. was challenged on telling the police that Mr. A.-M. got 'into bed', she meant on top of the covers, as was she. As well, she explained that when she said the defendant checked up on her and Jo. a couple of times, she meant 3-4 times. She also said, logically, that while her back was to the defendant, she turned her head sufficiently to see him when he touched her inappropriately. These are not material discrepancies that on the evidence raise an alarm about the complainant's reliability.

31In this regard, I am mindful of J.A.'s relative youth and the relevance of the direction in W.R. [2] regarding the proper approach to the evidence of young children regarding times and details during stressful events. In W.R., McLachlin J., as she then was, recognized that a young person may experience the world differently than adults, so that the court should take a "common sense" approach in assessing the evidence and credibility of the child being mindful of "criteria appropriate to her mental development, understanding and ability to communicate". I would rely on J.A.'s evidence on the material allegations.

32I take a different view of the defendant's testimony. Accepting he had consumed alcohol and was tired when he woke up, it is questionable that after living in the apartment for a year he would be confused where his own bedroom was, or that he was oblivious to Jo.'s bed being on the opposite wall and his "wife" on the side of the bed on which he ordinarily slept. Nor is it realistic he would be unaware of two others in the bed on which he lay down.

33Half-asleep, skeptical as I am of that convenient term, does not mean sleepwalking with one's eyes shut. It stretches credulity that the defendant, who claimed not to be drunk, did not look at or react to his "wife's" swatting him away from multiple attempts to hug, rub or touch her, kiss her shoulder or swing his leg over her. Were his eyes really shut the entire time? It is self-serving to suggest, as did Mr. A.-M., that in all of his intimate gropings, including inside the complainant's shorts, he felt no bodily differences as between his wife of 14 years and that of a much smaller teenager. It defies common sense.

34I am not of the view that the facts in Walsh [3] assist the defendant. In Walsh, the complainant and the accused and his family shared a camping trailer for the first time. The parties were drinking. The complainant was sleeping in a cot outside the main bedroom. In the early morning hours, on his return from the washroom, Mr. Walsh got into the cot, he says by mistake. There was brief sexual contact initiated by him. That the complainant immediately recoiled put an end to that encounter.

35That is not this case, where Mr. A.-M. was persistent in his behaviour for which there was physical resistance, it being untenable on this evidence to suggest he was oblivious to it and unaware of where he was or with whom and her reaction to his entreaties. I don't accept his evidence that he was mistaken about the object of his sexual acts or that his mistaken belief was reasonably held.

36Nonetheless, in the weighing process, I must consider, in particular, the second and third prongs of W.D. [4] in determining whether the Crown has proven the essential elements of the offences beyond a reasonable doubt. That is, I must acquit, even if I do not believe the testimony of the accused but am left in doubt by it. As well, even if I am not left in doubt by that evidence, I must still determine whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt by it of the guilt of the accused. [5]

37In J.H.S. [6] at para. 9, Binnie J. brings a practical perspective to the 3 W.D. questions. At para. 9, he affirms that reasonable doubt applies to a weighing of the credibility of witnesses and that the burden never shifts from the Crown to prove every element of the allegations to the requisite standard. He reminds us that an evaluation of the conflicting evidence of witnesses is not a "credibility contest".

38In relation to the second question, Justice Binnie explains that some elements of an accused's evidence may be sufficient to raise a reasonable doubt even though the majority of it is rejected. It may simply be that the trier concludes that it is unsure "whether to believe the accused's testimony or not".

39With regard to the third question and assessing the otherwise credible evidence of the complainant where there may be reliability concerns, he refers to an "additional instruction" by Wood J.A. in H.(C.W.) [7] that"if, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit".

40Justice Binnie goes on to reinforce his main point that "lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt" [8]. I am mindful that the standard of proof is very high – "a standard just below absolute certainty" [9].

Conclusion

41I accept and rely on the complainant's evidence, not least for the reason that the defendant conceded the sexual interference and touchings alleged. In that regard, the peripheral inconsistencies do not diminish the reliability of J.A.'s testimony.

42Not so, Mr. A.-M. I have carefully weighed his evidence mindful of the importance of the second prong in W.D. Even if I don't believe his testimony that he was honestly and reasonably mistaken that he was groping the complainant, is there an element of his evidence that leads me to find a reasonable doubt that the accused is guilty. I find there is none. On all the evidence, for the reasons indicated earlier, I am not left in reasonable doubt by the evidence of the defendant that he was cognitively diminished to the degree that he could be honestly mistaken he had climbed into his daughter's bed and believed he was attempting to sexually arouse his wife.

43There will be findings of guilt on both counts.