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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Court Information

Ontario Court of Justice

Date: 2013-05-30

Court File No.: Newmarket Info.12-4123

Between:

Her Majesty the Queen

— and —

A.B.

Before: Justice Joseph F. Kenkel

Heard on: May 29-30, 2013

Reasons for Judgment released on: May 30, 2013

Counsel:

Ms. Kellie Hutchinson — counsel for the Crown

Mr. Rishi Singh — counsel for the defendant

KENKEL J.:

Introduction

[1] A.B. and his wife were foster parents to a number of children with significant disabilities. The complainant suffers from severe cerebral palsy that has left her quadriplegic. From the time she was three and a half years old to the age of 19 the complainant lived with A.B. and his wife. They were responsible for all aspects of her care. A.B. is now charged with sexual assault contrary to s. 271 of the Criminal Code in relation to one incident where it's alleged that he touched the complainant in an inappropriate manner.

Evidence at Trial

[2] The complainant suffers from severe physical limitations but her intellectual abilities are not impaired. Although testifying was a struggle, she was nevertheless an articulate witness who responded in detail to questions from both counsel.

[3] A.B.'s wife cared for two disabled boys in the home who retained sufficient motor function and balance to move on their own, but given her fibromyalgia she was not able to lift the complainant who has no ability to move, sit upright or even roll over in bed on her own.

[4] Once the complainant grew to a size where his wife could no longer lift her, A.B. was responsible for all aspects of her care. He's bathed her, clothed her, assisted her with intimate acts such as going to the bathroom and menstruation. The complainant said that this incident took her by surprise because A.B. has never before touched her in an inappropriate way or made an inappropriate comment.

[5] After a visit to her birth mother, the complainant returned home with a vibrator. She referred to the vibrator as her "toy" and she finds it useful to deal with her sexuality. She testified that A.B. assisted her in the use of her toy by placing it in her hand and then leaving the room. She never used it in his presence.

[6] The complainant testified that one night as A.B. was cleaning her in her genital area his hand accidentally brushed her vagina. She recalls she moaned and he responded, "oh did you like that". She didn't know whether he meant that in a sexual way. Around this same time she'd asked him for her toy.

[7] She recalled A.B. saying, "let me get you started" and then rubbing her vaginal area for about 5 seconds. He then stopped and said, "I better go because I don't want to get in trouble." He left the room.

[8] The complainant spoke with A.B. via Skype a few days before he was charged. She recalled that he told her he "never meant for that to happen" and that he was just very "strung out". He told her, "If you come back it won't happen again." Days later after he'd been charged she tried to speak with him but he told her that he was sorry but he couldn't speak with her.

[9] In cross-examination the complainant agreed that when she first spoke with the investigating officer about her complaint as revealed to her social worker she'd told the detective she'd "made the whole thing up". She said, "… my dad never touched me inappropriately".

[10] The complainant explained that she now doubts her own recollection of the incident, in part because it doesn't make sense to her that A.B. would do such a thing after so many years of intimate care without any issue. She also changed her evidence with respect to the Skype conversation and agreed that there was no admission by A.B. in that conversation.

[11] In re-examination the complainant explained that she was scared when she spoke with the police and scared to be in an interview on camera. In her mind she now believes that she made the incident up. She stated that the part where she said she made the whole thing up was actually true and she felt she'd been "really pressured to speak" at the police station.

[12] The complainant explained that the contact she described could have been simply the completion of her cleaning. Her present recollection is that she did not see the accused's hand and she cannot now say that he touched her with a hand as opposed to a cleaning wipe. Although she told the Detective in her statement that she saw the accused's hand touch her, she meant to say that she did not see his hand touch her.

[13] Other than her present concern that she's fabricated the whole incident, the complainant did not otherwise resile from her recollection that A.B. said "let me get you started", but she now allows that statement could have been in the context of completing her cleaning and getting her ready to use her toy.

Analysis

[14] The complainant refers to A.B. as her father and his wife as her mother. They are certainly the only family she has ever known and plainly she has a close loving bond with them. She was very upset when for reasons unrelated to this complaint she was forced to move to another residence.

[15] The Crown submits that the complainant's evidence in-chief was candid, internally consistent and credible. The Crown concedes that her evidence in cross-examination was contradictory in parts but notes that when the same concern regarding fabrication was expressed at the time of the statement to the investigating officer, at the end of that statement the complainant explained she had lied or "fibbed" at the outset because she "didn't want her father to get in trouble". The Crown submits that the complainant never resiled from her recollection of the statements made by the accused at the time and the only context in which those statements and the whole of the evidence makes sense is as described by the complainant in her testimony in-chief.

[16] The defence submits that the complainant was not a credible witness and that her evidence is internally contradictory and unreliable.

[17] I disagree with the defence that the complainant was not a credible witness. She had the unenviable task of describing very intimate aspects of her personal life in detail yet she did so with courage and candour. I agree with the Crown that she may well have a motive for the changes in her evidence, but given the general candour of her testimony, I find her concerns about her own recollection and her suggestion of another reasonable explanation for the incident are not reasonably dismissed.

[18] Considering the evidence as a whole I find that a reasonable doubt remains.

Conclusion

[19] I find that the Crown has not proved the charge alleged beyond a reasonable doubt. The charge is dismissed.

Released: May 30, 2013

Signed: Justice Joseph F. Kenkel