WARNING

The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

Court Information

Court File No.: 112374

Date: 2012-10-11

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Bernard Warren Rogowski

Before: Justice D. DiGiuseppe

Heard on: May 10, 2012 and June 21, 2012

Ruling on Application released: October 11, 2012

Written Reasons released: November 22, 2012

Counsel:

Shari Frenette for the Crown

Gilbert Labine for the accused Bernard Warren Rogowski

RULING ON APPLICATION TO ADDUCE EVIDENCE OF AN ALTERNATE SUSPECT

DIGIUSEPPE, J.:

A. OVERVIEW

[1] Bernard Rogowski is charged with committing an indecent assault on a female, between January 1, 1979 and December 31, 1981, contrary to section 149 of the Criminal Code. The alleged victim, C.V., was born […], 1977. Her identity is protected by order of the court. She testified, as well as her mother D.G. The accused also testified.

[2] After the accused testified, he brought an application for the introduction of evidence of an alternate suspect. A voir dire was conducted. The defence called two witnesses in respect of the application; R.S. and her daughter C.C.. Ms. C.C. was born […], 1974. The parties agreed that the evidence adduced at the trial was to be considered in the voir dire. The parties also agreed that subject to my ruling on admissibility, the evidence adduced on the voir dire would be applied to the trial.

[3] The trial commenced on May 10, 2012 and continued on June 21, 2012. The application was adjourned to today's date for my ruling on admissibility.

B. THE EVIDENCE

[4] C.V. testified in the trial. She says she was sexually assaulted by the accused when she lived at an address on L[…] Place in the City of Thunder Bay. She resided there with her mother D.G. and her three siblings. Her mother was dating the accused at the time.

[5] C.V. testified that the assaults occurred in the upstairs bathroom of her residence. The accused took her into the bathroom and told her to get onto the toilet seat. He had his pants down around his ankles. He took his penis out and told her to suck on it. She did because he said it was okay to do so. He ejaculated. This occurred one to two times per week over a one year period while the accused resided in her home.

[6] C.V. recalls the accused being present "all the time". In cross-examination, she stated that the accused was a father figure to her, and was present and would look after her and her siblings every day.

[7] C.V. remembers the person who assaulted her as being tall and skinny. She cannot remember other physical details. She also recalls that the accused played with her and her siblings (he gave them dingdong rides, described as swinging them by the ankles) and owned a yellow Jeep. She also recalls the accused taking her to the hospital in that yellow Jeep after she fell from a swing.

[8] C.V. told no one of these sexual encounters with the accused. It was only after watching a movie about inappropriate touching when she was between 8 and 10 years old that she realized that the accused's conduct was inappropriate.

[9] C.V. did not see the accused again until 1996 or 1997 when she ran into him at a bar. At this time she told her cousin and uncle who were with her that the accused had molested her as a child. She encountered the accused again in December 2010. She subsequently disclosed the assault to her fiancé, her mother and the police in June 2011.

[10] During the time period that the accused was involved with her mother, C.V. had no babysitters. In cross-examination she said she did not know a person by the name of K.N., nor did she remember someone named C.M..

[11] D.G. testified in the trial. She confirmed that she and her four children moved to the L[…] Street residence in 1979, and moved out in 1984. She dated the accused for approximately eight months and is certain the relationship had ended by December 1980 as she was seeing someone else at that time. There was no animosity between her and Mr. Rogowski when the relationship ended, and they maintained an ongoing friendship, seeing each other occasionally.

[12] During the course of their relationship, the accused maintained his own residence. He did sleep over on occasion but was not at her residence often. He would come to her home late in the evening after work while the children were sleeping. He did work shift work, and he would come to her residence occasionally during the day.

[13] D.G. testified that there were times when the accused was with the children alone when she went out briefly, either to visit the neighbours or to grocery shop, perhaps twice a month. This was infrequent, as she spent most of her time in the home. She would not have given the accused the responsibility of taking the children to the bathroom.

[14] D.G. testified that she knew K.N.. In her opinion, he bears no resemblance to the accused. His family lived nearby. K.N. was 11-13 years old during this time. He did not babysit her children, although his mother, M., did. D.G. also knew R.M. and her children, a family that lived at L[…] Place. Her children and Ms. R.M.'s children would occasionally play together.

[15] Bernard Rogowski testified in the trial. He acknowledged a relationship with D.G. from May 1979 to July 1980. During that time period he maintained a separate residence and was employed fulltime at Great Lakes Paper. He agreed that he looked after D.G.'s children infrequently, that he had full access to her home and would have been alone with the children occasionally. He agrees he drove a yellow Jeep.

[16] Mr. Rogowski knew R.M.. She lived two doors from D.G. He also knows of K.N. although he never met him. He is acquainted with K.N.'s mother M., who also lived in the L[…] Place housing community.

[17] Mr. Rogowski denied the allegations of C.V. He testified that he has no criminal record and has no sexual attraction to children.

[18] C.C. testified on the voir dire. She is 37 years of age and resides in Thunder Bay. She lived on L[…] Place in the City of Thunder Bay between 1978 and 1981. She does not remember the complainant C.V. or her mother D.G. Ms. C.C. testified that she was sexually assaulted by K.N. when she was between 4 and 7 years of age. K.N. was 8 or 9 years older than her and babysat her. She described him as tall for his age, about five feet-three inches, slender but muscular with shoulder length thick hair and dull hazel eyes. He was clean shaven but had pock-marked skin. His two front teeth overlapped.

[19] The assaults occurred in Ms. C.C.'s home, upstairs in the bathroom or bedrooms. K.N. placed his penis in her mouth and masturbated. Further details of the sexual assaults were set out in Ms. C.C.'s affidavit filed as an exhibit in the voir dire. The affidavit included the Order of the Criminal Injuries Compensation Board, which conducted a hearing in November 2007 regarding these allegations. That order, which awarded compensation to Ms. C.C., also described the sexual assaults. The conduct included fondling, masturbation and intercourse. The assaults were accompanied by threats not to tell anyone, pulling her hair and striking her. Ms. C.C. did not see K.N. sexually assault anyone else.

[20] R.S. also testified on the voir dire. She is Ms. C.C.'s mother. She and her children lived in the L[…] Place community between 1978 and 1981. She was acquainted with D.G. and her family who lived nearby. She confirmed that K.N. babysat her children and other children in the neighbourhood. He lived across the street from her townhouse.

[21] K.N.'s mother also babysat children in the neighbourhood, and children would be in and out of her home often. It became an informal daycare or playhouse for the neighbourhood. Ms. R.S. was familiar with the complainant C.V., saw her daily and saw her in the K.N. home.

[22] Ms. R.S. knew Mr. Rogowski and was aware he was dating D.G. while they lived on L[…] Place. She saw him 3 to 4 times per month. She would not mistake Mr. Rogowski for K.N..

[23] In late 1980, Ms. R.S. daughters Christina and C.C. disclosed that K.N. was kissing and fondling Christina. Ms. R.S. told his mother and made arrangements to leave the neighbourhood. Police were not contacted because the children were very young and they were uncertain as to the extent of the conduct. C.C. disclosed further information a few years later. Ms. R.S. became aware of the full extent of the conduct at the Criminal Injuries Compensation Board hearing in November 2007.

C. THE LAW

[24] The law with respect to the admissibility of alternate suspect evidence must be viewed within the framework of an accused's right to make full answer and defence. This depends on an accused being able to call the evidence necessary to establish a defence and challenge the prosecution evidence. This right to call evidence is limited only where the potential prejudice to the trial proper outweighs its value. See R. v. Seaboyer, [1991] 2 S.C.R. 577 and R. v. Clarke, (1998), 18 C.R. (5th) 219 (Ont. C.A.)

[25] The principles governing the admissibility of alternate suspect evidence were established by the Supreme Court of Canada decision of R. v. McMillan, (1975), 33 C.C.C. (2d) 360. That decision was affirmed by the Supreme Court of Canada in R. v. Grandinetti, [2005] 1 S.C.R. 27, 191 C.C.C. (3d) 449. Abella J. summarized the principles at p. 462-3:

47 The requirement that there be a sufficient connection between the third party and the crime is essential. Without this link, the third party evidence is neither relevant nor probative. The evidence may be inferential, but the inferences must be reasonable, based on the evidence, and not amount to speculation.

48 The defence must show that there is some basis upon which a reasonable, properly instructed jury could acquit based on the defence: R. v. Fontaine, [2004] 1 S.C.R. 702. If there is an insufficient connection, the defence of third party involvement will lack the requisite air of reality: R. v. Cinous, [2002] 2 S.C.R. 3.

[26] Simply stated, there must be some connection between the alternate suspect and the offence, whether by direct or circumstantial evidence. There must be an air of reality to the proposed defence which could raise a reasonable doubt as to the guilt of the accused.

D. ANALYSIS

[27] The defence submits that the evidence of Ms. R.S. and Ms. C.C. is necessary to enable the accused to make full answer and defence. The argument advanced is that K.N.'s residence in the L[…] Place neighbourhood and the evidence of Ms. C.C. regarding his assault on her is sufficient to establish a nexus between Mr. K.N. and the offence, both with respect to opportunity and propensity. The location and nature of the assaults and the age of the victims are sufficiently similar to provide the necessary air of reality for admissibility.

[28] The defence put forward the following facts in support of their application to adduce evidence of an alternate suspect:

1. The alternate suspect, K.N., resided in the same residential complex and a mere few doors from the residence of the complainant C.V. during the time period in question, i.e., January 1, 1979 to December 31, 1981.

2. The evidence of R.S. placed the complainant in the K.N. residence.

3. There is evidence that K.N. committed a sexual assault on C.C. when she was between 4 and 7 years of age. Assaults occurred in a bathroom and included oral sex. These factors are similar to the circumstances alleged by the complainant C.V.

4. K.N. babysat other children in this residential complex, although there is no direct evidence that he babysat the complainant C.V.

[29] The defence submission is that given these factors, K.N. had the opportunity and the propensity to sexually assault C.V. This, the defence argues, is a sufficient connection between K.N. and the assaults on C.V. to give the defence of third party involvement an air of reality.

[30] The Crown counters by submitting that the complainant is certain of the identity of the person who assaulted her and has no knowledge of K.N.. The Crown also points to the evidence of the age discrepancy between K.N. and the accused and the witnesses who testified that they could not confuse the two.

[31] The proposed evidence clearly puts the alternate suspect K.N. in the neighbourhood and even in the same house as the complainant C.V. during the requisite time period. That evidence also clearly establishes a propensity on K.N.'s part to perform sexual acts, particularly oral sex, with very young girls. In my view, given the nature of the allegation of C.V., I am satisfied that there is a sufficient connection between K.N. and the assault on C.V. Evidence of K.N.'s disposition or propensity to commit this offence would be inadmissible absent a connection to the offence. The evidence would lack probative value. However, evidence of opportunity is the link that makes the proposed alternate suspect evidence both relevant and probative. In these circumstances, I am satisfied that there is some basis upon which a properly instructed jury acting reasonably could have a reasonable doubt on the issue of identity based on this evidence.

E. CONCLUSION

[32] The application to adduce alternate suspect evidence is granted. The evidence of R.S. and C.C. received during the voir dire shall be applied to the trial proper.

Released: November 22, 2012

Signed: "Justice D. DiGiuseppe"