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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 File and Parties

Court File No.: Walkerton 11 767 / 11 3117 Date: 2013-02-04 Ontario Court of Justice

Between: Her Majesty the Queen — and — E.T.

Before: Justice Brophy

Heard on: 24 January 2013

Reasons for Judgment released on: 4 February 2013

Counsel:

• Brian R. Linley, for the Crown
• Hedley Thompson, for the accused E.T.

Brophy J.:

INTRODUCTION

[1] E.T. has been charged with being unlawfully in a dwelling house contrary to section 349(1) of the Criminal Code and with sexual assault contrary to section 271 of the Criminal Code. The crown proceeded summarily.

ISSUES

[2] This is a case about identification. The complainant says that E.T. fondled her while she was sleeping in a trailer at a campground. She says that she woke up, saw the person who was touching her and was later able to identify him as the accused. Her mother sleeping near the front door of the trailer also woke up and saw the accused as he was fumbling with the door trying to leave. The Crown's case depends upon the credibility and reliability of these two eyewitnesses.

[3] In addition the burden of proof beyond a reasonable doubt remains an ever present issue. In this case that particularly has to be looked at through the lens of the R. v. W.D. (1991), 63 C.C.C. (3d) 397.

FACTS

[4] The facts are as follows.

[5] S.S.L., 23 at the time of the trial, went with her mother C.S.L. to a campground South of Chesley in the County of Bruce, on the weekend of 17 September 2011. They took with them S.S.L.'s son M.S.L., who is now 4 years old. They also brought with them the complainant's much younger sister, N.S.L., who is now 7 years old. They went because a friend of C.S.L. named Annemarie Mate worked at the camp and arranged for them to rent an empty trailer.

[6] They arrived Friday evening 16 September 2011. The trailer they had rented was next to a trailer owned by E.T. and his wife L.T.. Immediately next to their trailer was a trailer owned by their good friends Randy and Geraldine Pegelo.

[7] C.S.L. visited with her friend, but S.S.L. did not socialize very much. E.T. and L.T. and the Pegelos had a party that evening celebrating Randy Pegelo's birthday. There were a number of people coming and going from that party but S.S.L.'s involvement with those persons was limited.

[8] The complainant says in her evidence that the 13-year-old daughter of Annemarie helped look after the 2 young children. Freed from that responsibility S.S.L. says that she drank a considerable amount of alcohol, texted her boyfriend numerous times, and at some point ended up in her car where she was sick to her stomach. A man came along and asked her if she was okay and eventually he helped her back to her trailer. By this time her son had been put to bed and she decided to go to sleep in the same bed.

[9] The trailer was not elaborate. Inside the front door there was a bed. Turning left and going to the back of the trailer past the washroom area there was another bed. S.S.L. joined her son in the back bedroom and fell asleep.

[10] Earlier in the evening the S.S.s had trouble with their campfire and E.T. volunteered to help them. That is the only direct contact he had with the S.S.s. He was however present at his trailer site socializing with various people and he moved about the campground to certain extent and so he could have been seen by the S.S.s regularly throughout the evening.

[11] S.S.L. says that in the early morning hours she was awoken by someone rubbing her legs and her buttocks. She said that she woke up with a start and said "What the fuck?" Her evidence is that this person, who had been kneeling beside the bed, stood up and headed for the front door. That is the only view she had of the person who was molesting her.

[12] C.S.L. testifies that she heard her daughter's words and woke up. She had gone to bed sometime after her daughter. She says that she saw the person who was in their trailer and that it was a man and that it was E.T.. She says she had a full opportunity to see him because he was fumbling with the door and paused briefly before he could get it to work.

[13] S.S.L. and C.S.L. spoke about what happened. S.S.L. wanted to call the police right away and C.S.L. said to wait. It wasn't until around 7:30 am and after C.S.L. had complained to her friend who worked at park that the police were called.

[14] The police attended and after interviewing the complainant and her mother at the Walkerton OPP station decided that they had sufficient grounds to arrest E.T. for the offences with which he is charged.

[15] E.T. testified and said that he did not enter the trailer, nor did he touch S.S.L.. He says he spent the evening socializing with his friends and managing the party for Randy Pegelo. He says that he had 12 to 14 bottles of beer to drink from the afternoon through to the end of the party. He says that he helped Geraldine Pegelo put away the karaoke equipment and then went into bed and didn't come out again. He says his only direct involvement with the S.S.s was when he offered to help them start a fire because they did not know how to do so.

[16] L.T. says that she went into her trailer shortly before her husband joined her. Her evidence is that he did not leave the trailer after that.

[17] Geraldine Pegelo says that she was up to the end of the party and did indeed have help from E.T. in putting away the music equipment and that her memory is that he went into his trailer immediately thereafter.

[18] There is some confusion in the evidence between that of E.T. and L.T. and Geraldine Pegelo as to when the party was over and when they went to bed. But there is no confusion that they all turned in around the same time.

[19] Geraldine Pegelo also says that at some point in the evening she saw S.S.L. in her car slumped over the driver's wheel as if she was passed out. Her son was in the backseat. She also saw another camper come up and take her to her trailer and she is 80% certain it was Ted MacQuarrie. That same person came back and got "the little guy" out of the car and took him to the trailer as well.

[20] E.T. in his evidence produced a Facebook photo of Ted MacQuarrie. That photograph had been shown to S.S.L. and C.S.L.. They did not recognize the person in that picture. E.T.'s evidence is that the photograph of Ted MacQuarrie bears a resemblance to him. Ted MacQuarrie's sister is Amy Schnurr who used to work with L.T.. Ted MacQuarrie had brought a trailer to the campground the evening in question.

[21] In L.T.'s evidence she also says that she saw Ted MacQuarrie in the park that evening and that she saw S.S.L. sitting on a bed in Ted MacQuarrie's trailer, which was about 5 or 6 trailers away from their site. She said that she was at Ted MacQuarrie's trailer because she had been asked by Amy Schnurr, who was also in the campground that night, to go down and tell Ted supper was ready.

ANALYSIS

[22] There are two issues in the case. The first is whether or not the identification evidence is reliable such that it would satisfy the burden of proving the charges beyond a reasonable doubt. The second issue, or analytical question, is whether or not the WD principles have been satisfied.

[23] With reference to the identification there are some difficulties with the crown's case.

[24] The first problem is that neither S.S.L. nor her mother C.S.L. knew E.T.. They had never seen him before that evening. The contact with him on the evening in question was minor and peripheral. They had no familiarity with him in any significant way.

[25] Next the opportunity for S.S.L. to identify the person who was at her bedside was extremely brief, the lighting was not good, and she was coming in and out of a state of consciousness, as she described her evidence where she said she was in part dreaming, and finally she was, by her own admission, drunk.

[26] Further the viva voce evidence of S.S.L. is contradicted in several instances. For example she said in chief that after she woke up for the 3rd time she stayed awake. But in her statement to the police she says that she fell back to sleep. She says in her evidence in court that the groping was of her legs and buttocks, and yet in the statement she says that she was touched all over including her chest. She says that she slept against the wall and her son was on the aisle side, and yet her mother says the opposite.

[27] Turning to the evidence of C.S.L., she had a slightly better opportunity to observe the intruder but it was still imperfect given the limited period of time involved, the poor lighting, the fact that she was awoken quickly and was startled by what was happening, and a most importantly a contradiction between her statement and her evidence in chief with reference to how this person was dressed. In her statement she says that he was shirtless, but in her evidence in chief she described in vivid detail that this person was wearing jeans and a black shirt with a West Coast bikers logo, being the same clothing that the accused had been wearing the night before.

[28] A further difficulty with the identification is that a number of early morning hours went by with the complainant and her mother talking about the incident and presumably who the culprit was. The possibility of an unthinking and unplanned collaboration as to who the person in question was is apparent. There are also contradictions in their evidence in that C.S.L. says they talked about the incident, but S.S.L. says they did not and that she had gone back to sleep. Moreover C.S.L. says that she never said they should wait till morning to call the police – but rather she wanted to wait because her daughter had been drinking and did not want her to speak to the police in that condition. C.S.L. also said that S.S.L. said she knew who the guy was – even though in her evidence the complainant said that she did not at first know the identity of the person.

[29] The evidence of the S.S.L. and C.S.L. is jumbled and inconsistent and is fraught with contradictions. It is also telling that the complainant says that she did not review her statement in detail before giving her evidence. No explanation is given for that lack of attention to the case – but it causes the court to have some concern about the frailty of her evidence.

[30] After the police were called the evidence is incomplete and obscure about how the complainant and her mother fixed upon E.T. as the guilty party. There is no evidence about any form of line-up or opportunity to observe persons in the campground. The evidence is empty with reference to any narrative about how the identification process took place.

[31] A further concern is the presence of Ted MacQuarrie and whether he played a role in the incident. What we do know is that in all likelihood Ted MacQuarrie was the individual who helped S.S.L. out of the car after she had been sick and took her back to her trailer. S.S.L. says nothing about her son being in the car with her. Nevertheless the evidence of Geraldine Pegelo is convincing that it was in fact Ted MacQuarrie who helped her and that her son was in the back of the car and that Mr. MacQuarrie had to go back and fetch him as well.

[32] The Facebook picture, said to be that of Ted MacQuarrie, does indeed suggest a likeness with E.T.. Is it possible that S.S.L. and C.S.L. are confusing the two?

[33] There is also concern about S.S.L. having spent time with Ted MacQuarrie in his trailer in the evening prior to the incident. In the evidence of the complainant there is some corroboration of this assertion. If she did - his connection with her is more relevant than that of E.T..

[34] In sum the identification evidence is problematic and I am not convinced by it beyond a reasonable doubt that E.T. was the person in the trailer who molested the complainant. It is too frail and does not meet the high standards that are required in identification cases.

[35] Lastly there is evidence that E.T. was in his trailer at the time of the incident. Now it is possible for him to left the trailer unbeknownst to his spouse, but that is speculative only. There's also the lack of any particularized motive on the part of E.T. to involve himself with this young woman, aside from the risks involved given the physical layout of the trailer. This is not say that it is beyond possibility, but it is improbable.

[36] E.T. testified that he didn't do it. In WD terms I am not completely satisfied with his denial because he was next-door, he was drunk, he may well have been aware that S.S.L. was drunk and he may have tried to take advantage. I am also mindful of his prior criminal record. However with respect to the second part of the WD analysis – am I able to reject E.T.'s evidence? I am not. His evidence leaves me with a reasonable doubt.

[37] Further I would have concerns about relying upon the identification evidence in any event in satisfaction of the third branch of the WD test.

CONCLUSION

[38] For all these reasons, the charges against E.T. are dismissed.

Released: 4 February 2013

Signed: "Justice Brophy"