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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, 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.
Citation: R. v. Myrtaj, 2012 ONCJ 20
ONTARIO COURT OF JUSTICE
Old City Hall - Toronto
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
FARUK MYRTAJ
N. Golwalla
For the Crown
Saman Wickranasinghe and
Paul Gosio
For the Defendant
Heard: January 26-27, March 24,
June 22 and November 16,
2011
REASONS for JUDGEMENT
MELVYN GREEN, J.:
A. INTRODUCTION
[1] Faruk (“Frank”) Myrtaj was the superintendent in a Toronto apartment building in September 2009. L.D. and her then ten-year-old daughter S. were residents in the building. B.B., an adult acquaintance of the D. family, shared an apartment with her husband in the same building.
[2] B. and S. were doing their family laundry in the common ground-floor laundry room in the early evening of Sunday, September 20,2009. They had a couple of casual exchanges with Frank Myrtaj in the front lobby area while waiting for their laundry.
[3] S. alleges Myrtaj lifted her onto his shoulder while B. made a final check in the laundry room, carried her down a hallway that led to a backdoor to the building, and sexually molested her in a dark alcove near that backdoor. As a result of these allegations, Myrtaj was charged with sexual assault, sexual interference, invitation to sexual touching and forcible confinement. Myrtaj (hereafter, the defendant) denied touching S. or committing any other improprieties. B. in effect denied that there was any opportunity for the occurrence of the events said to underlie S.’s allegations.
[4] With some nuance, the case largely presents as a classic she-say-he-say scenario. Although often styled a contest of credibility, and although credibility assessments are crucial to the resolution of this prosecution, no legal burden is borne by the defendant. As in all criminal trials, the onus of proof rests on the Crown to establish the essential elements of each of the offences charged to a standard of proof beyond reasonable doubt. Here, there is no dispute that the complainant’s core allegations – that she was carried to a dark corner alcove and there groped against her will – establish, if believed, the essential components of the charged offences. This is not, however, the central issue. As framed by the evidence and counsels’ submissions, the issue comes down to whether the defendant in fact took S. to the corner alcove or, more narrowly still, whether there was even an opportunity for such mischief. A reasonable doubt in this regard necessarily results in the defendant’s acquittal of all four charges he faces. Conversely, proof to the requisite standard of this core allegation effectively grounds convictions for all four offences.
B. EVIDENCE
(a) Introduction: The Physical Plant
[5] The apartment building at issue is located on the east side of J[..] Avenue in the Parkdale area of Toronto. The front entrance, at […] J., opens onto a foyer area that, in turn, opens onto a central lobby that includes a single, west-facing elevator that services the eight-story building. A complex of tenants’ mailboxes is fixed to part of the northern wall of the lobby. The foyer and a portion of the lobby areas are visible from the street as the entrance area of the building is largely composed of glass. Two long hallways or corridors run east off the lobby, one on each side of the elevator. At the time, there were no surveillance cameras in the building.
[6] The northern corridor begins about two feet to the left of the elevator and leads east to the common laundry room (about 17 feet from the lobby) and, beyond, to the defendant’s apartment near the back of the building. It’s approximately four feet and ten inches wide.
[7] The southern corridor begins about 15 feet to the right (or south) of the elevator and then extends some 22 feet to a back door that opens by way of a fire-door push-bar; once closed, the door cannot be opened from the outside. At four feet in width, the southern hallway is almost a foot narrower than its northern counterpart. There is a small alcove, approximately four feet by four feet, at the end of this southern corridor, just before the back door to the building. (It is this alcove in which the complainant alleges she was assaulted.) A staircase descends from the upper floors to this southern hallway and then to a tenants’ garbage collection area in the basement below. PC Dyck, the first responding officer, testified that overhead fluorescent lighting in this hallway was turned off when he attended late on September 21st. However, the resident witnesses all swore the lights were continually illuminated in this hallway, and the complainant volunteered that it was “pretty light” in the hallway during the incident she described. In the defendant’s view, the alcove was almost as well lit as the corridor. The rest of the tenant witnesses considered the alcove relatively dark, as it has no illumination other than the glow cast by the hallway lighting. A door separates the hallway from the southern end of the lobby area. It is generally left open. According to S., someone standing at the lobby door and looking down the southern corridor would have been able to see her and the defendant in the alcove.
(b) The Complainant’s Account
[8] S.D. was 12 by the time she testified. She had provided the police with a videotaped statement a little more than a day after the incident, in the early hours of September 22, 2009. Her mother was present for the interview. S. adopted the truthfulness of her statement at trial while she testified, by way of CCTV, in a room adjacent to the courtroom. She had lived with her mother L. at […] J. her entire life. She knew B.B. as a friend of her mother’s, a family acquaintance. And she knew the defendant as “Frank”, the building’s superintendent. She had seen him on an almost daily basis for years as he conducted his chores in the apartment building. Their exchanges had always been uneventful if not benign; “he was”, she said, “a nice super”.
[9] S. told the police she was doing the family laundry in the common laundry room in the early evening of September 20th. B. was doing her laundry at the same time. She and B. then took their finished laundry to the elevator to head up to their apartments. B. suddenly remembered leaving something in the laundry room and scooted back for it. The defendant then “came out of nowhere and grabbed” S., placed her over his shoulder, covered her mouth with his hand, and carried her down the southern hallway to the alcove where he put her down. He then touched S.’s bum area and, under her clothing, her stomach and chest. He picked up S. to make her kiss him on the lips. S. kicked him in his knee when he put her back down. She then ran back to the elevator and her waiting laundry. B. asked her what was wrong but S. said nothing about the incident. She also did not disclose the event to her mother until after school on Monday, the next day.
[10] S. expanded on this account during her testimony. But for several joint trips to check on the progress of their laundry, she and B. hung out together, talking, in the lobby area while waiting for their loads to finish. B. at one point cautioned S. not to open the front door of the building to strangers, and S. felt safe in her company. S. had forgotten to tell the police about her skateboard or that she had been playing on it in the lobby. The defendant is a middle-aged man. He passed through the lobby area while S. was playing. At B.’s suggestion, she let the defendant try her board. He did, once only, for about three minutes. S. thinks B. told the defendant he was “too old”; she was sure she did not say this. S. denied that the defendant asked to use the skateboard on a second occasion, that B. asked the defendant to bring the board back before they went up the elevator, and that the defendant returned the board at that point. S. had no recall of taking the board back to her apartment that evening. She could not recall when she next noticed the board or when or how it ended up back in the sixth floor apartment she shared with her mother.
[11] S. could also not recall not telling her mother or PC Dyck (who conducted the first police interview) that she was touched on the chest, or telling her mother that the defendant only touched her over her clothes. She recalled telling her mother the defendant touched her bum under her clothing and her stomach over her clothing. She agreed that this account of the touching was fundamentally inconsistent with the one she had told the police and about which she had earlier testified. She could not explain why she told different versions. Then, after a luncheon recess, S. denied having testified before lunch that she told her mother that the defendant touched her bum under her clothes and her stomach over her clothes.
[12] S. volunteered that she was so scared by the defendant that she “thought he had a knife or something”. This thought inhibited her from screaming or protesting as “everything flashed before her eyes” and she was “afraid of being killed”. Despite recognizing its importance, she had not mentioned the knife to the police. She could not explain why she had not done so. She acknowledged that she never saw the defendant with a knife and that the idea of a knife had just come into her mind during the incident.
[13] S. demonstrated a well-developed understanding of basic temporal concepts. She estimated was in the alcove with the defendant for three to three and a half minutes. The defendant said nothing throughout their encounter. Nor did he follow her when she ran back to the elevator. B. was standing there with a man S. believed was B.’s husband. She could not recall, at first, talking to B. about her dinner plans. Later she remembered telling B. at the elevator about what she was going to eat for dinner when she got back to her apartment: chicken and broccoli.
[14] The following day, Monday, it appears that a man at S.’s school had participated in a “bullying session”. The man had “scared” S.. He also resembled the defendant. S. disclosed the Sunday evening incident to her mother after school that day. She agreed that her mother told her she had spoken to B. after she, S., had told her what occurred, but she denied that she herself had spoken to B. about the incident, that B. asked her how this could have happened, and that she told B. that she wouldn’t understand.
[15] As regards the events of that evening, S. agreed that “it happened fast”, that “it didn’t all sink in” and that her “memory is fuzzy”.
(c) The Complainant’s Mother’s Account
[16] S.’s mother, L.D., had lived at […] J. her entire life. She is employed as a social worker. B.B. was not a close family friend, but she had babysat L. when she was a child and she was a “trust figure” in S.’s life. L. knew the defendant as Frank the building superintendent. Their paths, and S.’s, had crossed many times, during which they exchanged general pleasantries. The defendant’s English was accented and limited to short sentences.
[17] L. was in bed with cramps on the evening of September 20th. S. took over the task of doing the laundry. Although S. repeatedly said she was “fine”, L. thought she appeared “out of breath” and a “bit dazed” when she returned to the apartment with the last of the laundry at about 8:15pm that evening. S. had made a few earlier laundry runs to the apartment and L. recalled her saying she was dropping off her skateboard on the penultimate trip; she did not testify to seeing S. do so. L. did not learn about the alleged assault until the next evening, Monday, when S. told her about the incident. L. decided to call the police after hearing the details from S. over the course of a 30 to 40 minute conversation.
[18] Before calling the police L. spoke with B. by phone. (She had not since spoken to B. about the incident or anything of substance.) According to L., B. acknowledged leaving S. alone in the lobby for brief periods while she checked the progress of the laundry, and that she had left S. at the elevator when she had to get something from the laundry room. L. testified she recognized the corroborative value of the information B. had shared with her. Accordingly, she had told the police about it when they attended at her apartment following her 911 call on the Monday evening. PC Dyck interviewed L. at her apartment that evening. His notes, which L. acknowledged reading and signing, record L. reporting that she had not yet spoken to B.. Advised of this, L. continued to insist she did speak to B. before calling the police. Later she conceded she had been mistaken. Her better recall was that she had not spoken to B. about the incident until the Tuesday or Wednesday of that week, sometime after she and S. returned from the police station. She had put S. on the phone during the call with B..
[19] L. testified that S.’s narrative of the assault never changed. She closely questioned her daughter about the incident, including whether she was touched over or under her clothing. S. replied that she was touched on her bum, stomach and chest, but consistently said that the touching was over her clothes. L. reported S.’s account to the attending police. She read and signed each page of the officer’s notes and would have remarked on any omissions. She acknowledged that there is no reference to “chest” in the officer’s notes. PC Dyck, who took the initial and verbatim statement from L., testified that he would have written “chest” if L. had reported S. being touched on that part of her body. L. had told Dyck that S. reported being touched over, rather than under, her clothing. Dyck had earlier interviewed S.. She too did not say anything to him about the defendant touching her “chest”. S., unlike her mother, said nothing about whether she was touched over or under her clothes.
[20] L. first heard S.’s kissing allegation when she attended the videotaped police interview later that same evening. Dyck testified that S. said nothing to him about the defendant kissing her or trying to kiss her. She also said nothing to him about a skateboard, although Dyck made clear he expected the complainant to be interviewed more fully at the station so he did not explore what he viewed as surrounding details at the time he spoke with S..
(d) B.B.’s Account
[21] B.B. had lived at […] J. for 28 years. The front interior of the building, as she described it, was well exposed to the street and the hallways were all well lit. She had been a close friend of L.D.’s mother and she and S. knew each other well enough to exchange greetings. Her relationship with the defendant was limited to similar exchanges and the defendant occasionally having to fix something in her apartment. In B.’s view, he spoke broken English with a slight accent.
[22] The skeletal outline of B.’s account closely parallels that afforded by S.. She was already doing her laundry when S. joined her in the laundry room about 6:30pm. They hung out together, talking, in the foyer and lobby while their clothes went through the machine cycles. B. told S. that she could share her dryer, and they both went back to the laundry room. They then returned to the lobby where S. played on her skateboard. At some point B. cautioned S. not to open the secure front door for persons who didn’t otherwise have access to the building. B. checked her laundry when she thought it might be dry; it still had about 20 minutes to go and she rejoined S., who was sitting on the skateboard, in the lobby where they continued small-talking. B. was clear that her trip to the laundry room was very brief: “about five seconds”, as she initially described it and then, when pressed, she more carefully estimated about 15 seconds or perhaps slightly longer.
[23] B. first saw the defendant in the lobby during this latter waiting period. He appeared to doing his rounds. S. was on her board and the defendant said, “Looks good. Maybe I can have a ride”. B. urged S. to let him, and the defendant got on the skateboard while trying to support himself by placing a hand on the top of the tenants’ mailboxes in the lobby. B. and S. both laughed when he quickly lost his footing and fell off. B. again left briefly to check the status of the laundry while the defendant continued his efforts to master the board. Again, she estimated she was apart from S. for no longer than 15 seconds in total. The machine indicated that there were still seven minutes left in the dryer cycle. She returned to tell S. they could remove their laundry from the dryer. S. said to wait a few more minutes. Neither the defendant nor the board was in the lobby area, and nothing about S.’s demeanour suggested she was upset.
[24] After a couple of minutes, B. and S. went together to the laundry room, removed their laundry and began to fold the items. They then returned to the elevator. As B. pressed the elevator button, S. said, “B., where’s my skateboard?” The defendant was not in the lobby and B. called out, “Frank, give me the board”. The defendant almost immediately emerged from the direction of the south hallway, with the board in his hand. He appeared normal. He gave the board to B. who in turn gave it to S.. S. told B. she was looking forward to a dinner of broccoli and chicken or broccoli and rice when she got home. The elevator door opened and B. and S. joined B.’s husband who was already in the elevator. S. was carrying her skateboard in her left hand and her laundry in her right B. told S. to “go straight home” as she and her husband got off on the fourth floor. She was sure she could hear S. playing on her skateboard while she checked the status of the laundry. She never left S. alone while she was standing at the elevator.
[25] B. did not return home until after midnight the next night, Monday. There was a message from L.D. on her phone. She returned the call after 5pm the following day. She was surprised to hear L.’s recital of S.’s allegations as she was with S. throughout the evening but for a couple of quick trips to check the dryer. S. had not appeared upset or unhappy all evening. S. got on the phone during B.’s call with L.. In response to her inquiries, S. repeatedly said, “You don’t understand”.
[26] B. characterized her role at the trial as that of a neutral or indifferent witness. “I’m not here to help anyone”, she said. “I’m just here to tell the truth, what I know of the truth”.
(e) The Defendant’s Account
[27] The defendant was 56 at the time of trial. He was born and raised in Albania. Although trained as a mining engineer, he did not pursue this career. He worked instead as a journalist and had published more than a dozen books of fiction. He and his wife immigrated to Canada in 2003. He had been the superintendent at […] J. from 2006 until the police investigation in September 2009. He denied all of S.’s allegations of physical and sexual impropriety. He also denied ever being alone with her, even for a second.
[28] The defendant recalled attending to the garbage area in the basement in the evening of September 20, 2009. He first saw B. (whose name he did not then know) when he returned to the ground floor and entered the lobby corridor. She was standing at the intersection of the lobby and the northern hallway. S. was playing on her skateboard across the lobby. He exchanged greetings with B.. She explained that she was doing laundry with S.. They both watched S. on her skateboard. The defendant said he would like to try the board and B. asked S. to let him try. He mounted the board, leaning on the tenants’ mailbox for support for a few seconds before he tripped up. B. and S. both laughed. He left the board on the floor in the lobby, told B. it was too late for them to learn skateboarding, and headed down the northern corridor to his apartment.
[29] The defendant left his apartment about five to ten minutes later. B. was standing at the opposite, or lobby, end of the corridor and he heard her summon S. to collect the laundry. S. approached B.. She was carrying her skateboard. Assuming she would be occupied with collecting the laundry, the defendant asked S. if he could try the board again. S. left the board on the floor and she and B. headed for the laundry room. Figuring he might fare better with more vertical support, the defendant repaired to the eastern end of the southern hallway where the corridor was narrow and there were three walls in close proximity. A couple of minutes later he heard B.’s voice calling, “Frank, where are you?” He picked up the board, ran to the lobby and gave the board to B. who was holding the elevator open. They said goodnight to each other and, as B. entered the elevator and the door closed, he saw S. and a man inside the elevator. He did not recognize the man.
C. ANALYSIS
(a) Introduction: The Governing Law
[30] As noted earlier, the central issue in the instant case is purely factual: did the defendant confine and sexually touch the complainant S.? Three witnesses advanced inconsistent narratives of the same brief period when the events giving rise to the charges are said to have occurred. S.’s and the defendant’s accounts are fundamentally contradictory. If not entirely rejected, B.B.’s recall ultimately supports the defendant denial as it precludes the opportunity for the assault described by S.. However, verdict determination is not a matter of witness numbers or mass. As has been often re-affirmed, a finding of guilt may be safely grounded on the evidence of a single witness: R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439, at 453-454; Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, at 819. Further, acceptance of a contradictory account may itself be a proper basis for rejecting a defendant’s testimony: R. v. D. (J.J.R.) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53; R. v. M. (R.E.), (2008) 2008 SCC 51, 235 C.C.C. (3d) 290 (S.C.C.), at para. 66.
[31] As should be immediately clear, an assessment of the credibility of each of the witnesses at trial – in terms of both their honesty and reliability – is critical to a proper disposition of this prosecution. The guidelines governing the final adjudication in such cases are those set out by the Supreme Court in R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397. As explained by the Court in R. v. J.H.S. (2008), 2008 SCC 30, 231 C.C.C. (3d) 302, at para. 9, W.(D.) “simply unpacks what reasonable doubt means in the context of evaluating conflicting testimonial accounts”. (See also, R. v. C.L.Y. (2008), 2008 SCC 2, 227 C.C.C. (3d) 129 (S.C.C.), at para. 8.) Put otherwise, even where a case presents as a bald contest of credibility, the adjudicative focus must remain fixed on the standard of reasonable doubt. (See, for example, R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, esp. at paras. 20-2; R. v. Minuskin (2004), 2003 CanLII 11604 (ON CA), 181 C.C.C. (3d) 542 (Ont. C.A.), at 550; R. v. Rattray, 2007 ONCA 164.) Further, the W.(D.) formulation applies not only to the resolution of directly conflicting evidence between an accused and a complainant but, as said in R. v. B.D., 2011 ONCA 51, at para. 114, to “credibility findings … arising out of evidence favourable to the defence in the Crown’s case”. (See, also, R. v. Robinson, [2011] O.J. No. 4854 (Sup. Ct.), at para. 35.)
[32] Like any trier of fact I may, with reason, accept none, some or all of the evidence of any witness: R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 10; R. v. Francois, [1994] 2 S.C.R. 27, at para. 14; R. v. M.R., 2010 ONCA 285, at para. 6; R. v. Abdallah, 1997 CanLII 1814 (ON CA), 125 C.C.C. (3d) 482 (Ont. C.A.), at paras. 4-5. I can also accord different weight to different parts of the evidence that I do accept: R. v. Howe, 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 44. Further, where, as here, a defendant has testified, his evidence – like that of any witness – cannot be assessed in a vacuum. As recently said by Code J. in R. v. Humphrey, 2011 ONSC 3024, [2011] O.J. No. 2412 (Sup. Ct.), at para. 152, “the first and second stages of the W.(D.) framework for analysis can only be undertaken by weighing the accused’s evidence together with the conflicting Crown evidence”. (See, also, R. v. Newton, 2006 CanLII 7733, at para. 5; R. v. Hull, 2006 CanLII 26572 (Ont. CA), at para. 5; and R. v. Snider 2006 ONCJ 65, [2006] O.J. 879, at para. 37; R. v. Hoohing, 2007 ONCA 577, at para. 15.)
[33] Finally, by way of legal introduction, I note that the complainant was a child both at the time the allegations arose and at trial more than a year later. In approaching her evidence I bear in mind the comments of the Court of Appeal in R. v. Stewart (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509; leave to appeal dismissed, S.C.C. Bulletin, 1995 p. 1902:
[W]e must assess witnesses of tender years for what they are, children, and not adults. We should not expect them as witnesses to perform in the same manner as adults. This does not mean, however, that we should subject the testimony of children to a lower level of scrutiny for reliability than we would do adults.
(b) Applying the Law
[34] No microscopically fine parsing of the evidence is required to faithfully apply these principles to the evaluation of the credibility of the witnesses who testified at this trial. Standing alone, the defendant’s account strains credulity. I appreciate his nervousness and the burden of testifying through an interpreter. Nonetheless, his responses to a number of Crown counsel’s questions were, if not evasive, protective, self-serving and off-topic. He places himself in the very alcove in which S. alleges she was molested and at the very time, on her sequencing, that molestation occurred. Read against S.’s narrative and at least parts of B.’s, I cannot accept—on its own – the defendant’s denial of the incriminatory allegations referable to September 20, 2009.
[35] S.’s testimonial manner, in contrast, was generally coherent and direct. There is no suggestion of historical animus or enmity in her testimony. She had, I find, no motive to fabricate. However, as said in R. v. C.O.L., [2010] O.J. No. 2045 (Sup. Ct.), at para. 148, “it is important not to give undue weight to this factor. It remains but one factor in the overall assessment of credibility”. See also, R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 145 C.C.C. (3d) 449 (Ont. C.A.), at 485-8; R. v. Czibulka (2004), 2004 CanLII 22985 (ON CA), 189 C.C.C. (3d) 199 (Ont. C.A.), at 214-218.
[36] Importantly, S.’s evidence is not free of somewhat troubling inconsistencies, both internal and when compared with the testimony of other witnesses. Her failure to mention the skateboard until directly questioned about it seems a peculiar omission, as is her failure to mention to PC Dyck that she was touched on her chest. The contrast between S.’s initial denial that she had been touched under her clothing (as reported to her mother L., and whose evidence I accept in this regard) and her subsequent disclosure, when speaking to the police during her videotaped interview, that she had indeed been so touched is concerning. Even more so is her testimonial flip-flopping on this issue. I do not accept S.’s recall of not speaking to B. on the phone after the event, as I believe the contrary evidence of her mother and B. in this regard. Her purported fear of an invisible knife and the mortal terror she says it inspired, as first recounted in the witness box, suggests late invention and, perhaps, exposure to external stimuli other than the defendant. The inconsistencies between her account and that of B. – encompassing such matters as the use of the skateboard, the frequency, duration and sequencing of their separations that evening, her demeanour on entering the elevator and the conduct of the defendant – are material to considerations bearing on the core allegations. S.’s concessions as to her own compromised perception of the events and her limited ability to recall them also detract from the reliability of her account.
[37] These various inconsistencies, omissions and concessions are not, in themselves, fatal to the creditworthiness of what remains the generally consistent account of a pre-adolescent girl recalling events that occurred more than a year before she testified. However, S.’s evidence – the only evidence capable of founding convictions for the offences charged – must be assessed against the evidentiary landscape cast by the testimony of all the other witnesses. And, of course, to ground such convictions it must itself or in combination with other evidence be materially sufficient to retire any vestige of reasonable doubt.
[38] L.D., S.’s mother, is clearly intelligent and well-intentioned, but I sense her evidence was over-protective of her daughter and herself. L.’s assertion that S.’s account of the events never changed is belied by patent differences between what she recalls being told and what she heard her daughter tell the police, and by a faulty recall of what she conveyed to PC Dyck at her apartment. Her initial recall of the timing of her telephone conversation with B. following S.’s disclosure is inaccurate (as she ultimately conceded) and raises more general concerns about her reliability, particularly regarding S.’s demeanour on returning to the apartment after doing the laundry and her recall, already vague, as to when the skateboard was returned to the apartment.
[39] In my view, the evidence critical to the resolution of the matter before me is that tendered through B.B.. Fairly called by the Crown, her testimony clearly assists the defence. If, as she testified, there were only two interruptions, of approximately 15 seconds each, in her otherwise close and continuous contact with S. then there was simply no opportunity for the abduction and assault S. describes. Alternatively, if, as she testified, she never left S.’s side between the time they last walked out of the laundry room and the time they boarded the elevator for their respective floors then S.’s account of her escape from the defendant and rejoining B. at the elevator cannot be accurate or valid.
[40] B. and S.’s accounts are, in the end, irreconcilable. S. may well have inflated the duration of the abduction she described. And B. may well have under-estimated the time consumed by each of her trips to the laundry room. But one cannot sufficiently shrink the distance between their respective estimates of their time apart without entirely re-writing their evidence or completely rejecting one or the other’s account.
[41] Whatever the precise length of her trips to the laundry room, B.’s point, and the point I accept, is that they were consciously brief departures from S.. She was sensitive to S.’s vulnerability and had assumed a protective role. Whatever their exact duration, none of B.’s trips to the laundry room was long enough to accommodate the events encompassed by S.’s allegations. Nor am I persuaded that B. was clearly dishonest or wrong about what occurred at the elevator in the moments before she and S. finally boarded.
[42] The Crown’s attack on B.’s credibility is premised on the assumption that her sense of guilt for abandoning S. led her to reconstruct, consciously or otherwise, the events of that evening. This thesis necessarily rests on accepting S.’s allegations as true (the very matter at issue) or, at minimum, that B. suspected they might well be and experienced some guilt for exposing the girl to this risk through her neglect. (More than incidentally, B. expressly denied feeling guilty and no contrary evidence was led on this point.) Given the consistency of B.’s evidence, her trustworthy demeanour, her maturity, her historical connection with the D. family and the absence of any affinity for or association with the defendant other than that of a tenant, I cannot accept the Crown’s thesis. Applying R. v. B.D., supra, I need not believe all of B.’s evidence to determine the legally correct result. Her testimony, combined with the defendant’s denials, leaves me with a serious doubt as the integrity of S.’s allegations of impropriety.
[43] I feel compelled to add to this my recognition that the allegations are themselves bizarre: a familiar and readily identifiable man seizes and molests a 12-year old girl; he does so by physically removing her from a publicly visible location to one to which many could readily have access; this occurs during an interruption of uncertain but predictably brief duration in a span of constant and attentive adult supervision; and the man does nothing (even by way of threatening gestures or words) to inhibit the girl from reporting the incident. I have no doubt that some offence scenarios, particularly those motivated by aberrant sexuality, present as patently bizarre. And, indeed, the facially peculiar nature of the allegations does not itself discredit S. or her account. However, in the circumstances of the case before me, and when added to the testimony of B.B. and that of the defendant, the nature of the allegations only compounds my substantial doubt as the whether the defendant committed the offences with which he is charged.
D. CONCLUSION
[44] In the result, and for the reasons earlier set out, I find the defendant not guilty of all charges. He is accordingly acquitted.
Released on January 11, 2012
Justice Melvyn Green