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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: August 12, 2014

Court File No.: Halton 11-2691

Between:

Her Majesty the Queen

— AND —

G.M. A-S

Before: Justice L.M. Baldwin

Heard on: July 9, 2013, July 10, 2013, October 11, 2013, November 14, 2013 and February 5, 2014

Reasons for Judgment released on: August 12, 2014

Counsel:

• K. Frew — counsel for the Crown
• A. DiCarlo — counsel for the defendant G.M. A-S

BALDWIN J.:

The Charges

[1] The accused is charged that on or about the 6th day of June, 2011, at the Town of Milton, he did sexually assault S.B., contrary to section 271 of the Criminal Code;

[2] And further, that on or about the 6th day of June, 2011, he did for a sexual purpose touch S.B., a young person under the age of 16 years, directly with a part of his body, to wit: his hands, contrary to section 151 of the Criminal Code.

[3] The Crown proceeded summarily. The accused pled not guilty.

[4] Date, jurisdiction and identity were not in issue.

Background

[5] S.B. (aged 15 years) and her family had moved to Toronto from the Owen Sound area within the previous year. She lived with her mother, K.B., and her older sister, C.B.

[6] The B. family have been long-time friends with the S. family who lived in Etobicoke.

[7] S.B. called the mother, C.S., her 'aunt'.

[8] S.B. called the daughter of C.S., K.M.S. (aged 17 years), her 'cousin'.

[9] K.M.S.'s sister, named R.S., was also referred to as a 'cousin.'

[10] On June 6, 2011, S.B. was with her 'cousin' K.M.S. in Mississauga. They were picked up by two men known to K.M.S. but unknown to S.B. Those two men were G.M. A-S (the accused – aged 19 years) and W.S.

[11] The men drove them to a location in Milton where the alleged events occurred.

[12] The property belonged to W.S.'s family and was under construction.

Summary of the Testimony of S.B.

[13] S.B. was 17 years of age when she testified at this trial.

[14] She was 15 years of age when she gave her video-taped statement in this matter to Toronto Police on June 10, 2011.

[15] S.B. adopted the contents of that statement as true. The DVD of the interview and related transcript were marked as Exhibits #1 and #2 at trial pursuant to section 715.1(1) of the Criminal Code.

[16] On June 6th, 2011 she and K.M.S. were dropped off at Square One in Mississauga by their two mothers.

[17] S.B. thought they were going to spend the day at a tanning salon where K.M.S. said that she worked.

[18] S.B. testified that when she was hanging out with her cousin K.M.S. in Mississauga in the afternoon, her cousin told her a shocking revelation. K.M.S. told her that she was making most of her money by posing nude on the internet on a site where people bid money for you to go further. K.M.S. told her that her male boss (Gary) at the tanning salon had set the site up for her and she and her boss were recruiting other girls to join the site. K.M.S. told her not to tell anybody because if her mother knew she would never forgive her. K.M.S. told S.B. that her mother and older sister (R.S.) did not know. K.M.S. also told her that she did drugs like MDMA. (Note: Further details are provided in the video-taped statement given to police.)

[19] S.B. was already very worried about what K.M.S. was into before they got picked up by G.M. A-S and W.S. that afternoon at approximately 4:30 p.m.

[20] S.B. testified that she thought when K.M.S.'s two male friends were picking them up, that they were going to be driven to K.M.S.'s house in Toronto.

[21] G.M. A-S (the accused) was the driver and he wanted the girls to come and hang out with him. He said he would give them a ride back to Toronto later. W.S. was the front passenger.

[22] S.B. thought that G.M. A-S and W.S. were about 19 years of age. She heard G.M. A-S and W.S. speaking Arabic to each other.

[23] G.M. A-S drove to Milton, a place S.B. had never been to before. He drove down rural roads to a house that was under construction. When they first arrived, two men were working on the house. About 30 minutes later they left. G.M. A-S took a mickey of whiskey and some beers out of the trunk of his car.

[24] S.B. testified that there was no discussion as to anybody's age during the period of time that the four of them were together. No one asked her how old she was. She did not tell anybody how old she was.

[25] The men lit a fire in the outside fire pit. The men were drinking whiskey and K.M.S. was drinking beer. S.B. was not drinking. She was 'scared and confused' and was not talking to anyone.

[26] G.M. A-S came over to her and put his right arm around her. He said, "Let's go for a walk." She refused and told him to ask her cousin to take her for a walk. He kept asking her to walk with him. Then he reached over and grabbed her 'boob' and she pushed him away.

[27] G.M. A-S and K.M.S. then went upstairs. S.B. stayed at the fire with W.S. W.S. was respectful to her and they had a pleasant conversation.

[28] Then K.M.S. texted her and told her to come upstairs alone. S.B. went upstairs. It was dark up there so she used her cell phone as a light.

[29] G.M. A-S told K.M.S. to tell her what's up. S.B. did not understand what he was talking about.

[30] G.M. A-S told K.M.S. to drop to her knees. K.M.S. said she was not going to do that in front of her cousin. G.M. A-S told K.M.S. not to be so 'wack' which S.B. took to mean stupid. Then G.M. A-S told K.M.S. to go take care of his boy. S.B. asked K.M.S. to stay with her but K.M.S. left.

[31] S.B. told G.M. A-S she was going outside for a smoke. G.M. A-S told her to stay. He ran towards her and grabbed her arm. She told him no. She had already told him that she had a boyfriend. She told him, "I don't know who you are."

[32] He kept grabbing her arm and pulling her towards him. S.B. had a smoke in her hand and he broke it and threw it on the ground. She kept telling him to leave her alone.

[33] G.M. A-S pulled on her belt with both of his hands and pulled her on top of him as he was leaning against a couch. She tried to pull away and he pulled her back and put his hands down her pants. Her belt was tight but he was able to touch the front of her vagina. She started to 'freak-out' and cry. She ran out of the building and onto the deck. She could see K.M.S. at the fire with W.S. She told K.M.S. she wanted to go home.

[34] G.M. A-S came outside and slapped K.M.S. in the face. Then G.M. A-S came up to S.B. and started insulting her and calling her gay. She told him to leave her alone and that she wanted to go home.

[35] G.M. A-S told her that they either had to stay there or find their own way home. He was not going to take them home.

[36] Finally G.M. A-S agreed to drive them back to Mississauga, not to Toronto. They left Milton sometime around midnight. They stopped at a Wendy's Restaurant along the way. G.M. A-S was outside of the car eating marijuana buds. A police cruiser passed by and G.M. A-S stated that he did not like the police. He had been in trouble with the police before – something to do with drugs.

[37] G.M. A-S was smoking a joint in the car as he was driving. He was passing people and changing lanes without signalling. S.B. was afraid they were going to get into an accident.

[38] S.B. learned that G.M. A-S had no driver's licence. He would use his twin brother's driver's licence if he was stopped by the police.

[39] Finally, G.M. A-S stopped the car and dropped them off on the side of a road in Mississauga. He told them to get out of his car. She and K.M.S. got out and G.M. A-S drove away.

[40] K.M.S. was acting really weird. Her eyes were really buggy and she was all jumpy like she was on drugs.

[41] When they were sitting on the bus K.M.S.'s eyes started to go really red and she just sat there not saying anything. They got back to K.M.S.'s house and K.M.S. went straight to bed after smoking some weed. K.M.S. would not talk to S.B. about what had happened.

[42] The next morning K.M.S. smoked more weed. S.B. had a smoke too.

[43] The next day S.B.'s mom came home and S.B. told her what had happened. Shortly after that, her mother drove S.B., her sister C.B., and R.S. to a hotel in Mississauga where her Aunt Catherine was working. In the hotel room S.B. disclosed what had happened to her on June 6, 2011.

[44] S.B. gave her statement to the Toronto police on June 10, 2011.

[45] Once the matter was reported to the police, her relationship with K.M.S. and K.M.S.'s family ended. S.B. testified that it was K.M.S.'s decision to end their relationship.

[46] S.B. was cross-examined on July 10, 2011 (77 pages of testimony). Her testimony remained consistent throughout and no alternate suggestions were put to her by defence counsel.

Testimony of C.B.

[47] C.B. is S.B.'s older sister.

[48] She gave a statement to the police about the evening of June 6th, 2011 on July 9th, 2013. Her memory of the events in question is "not that good".

[49] S.B. was with K.M.S. that day. They were supposed to be at K.M.S.'s work at the tanning salon in Mississauga.

[50] She called S.B. when it was getting dark because it was late and she wanted to know when S.B. and K.M.S. were coming home. S.B. said she could not talk and hung up. S.B. sounded upset.

[51] About an hour later, C.B. and S.B. spoke on the phone again. C.B. asked her what was wrong. She said, "I can't talk about it right now. I don't know when I'm coming home. I'm with K.M.S." S.B. also said that she did not know where she was.

[52] S.B. sounded more upset in the second call. C.B. felt worried and upset.

[53] C.B. texted S.B., but there was no response. Their mother was not home that evening.

[54] The next morning S.B. called her and asked her to bring her home from K.M.S.'s house. C.B. took the city transit to go to K.M.S.'s house. She and S.B. took the city transit home. S.B. did not know the way home. It took about 15 minutes to get home.

[55] S.B. disclosed the events of the evening before to her that day in the presence of their mother, K.M.S.'s mother and R.S. This was in a hotel room that K.M.S.'s mother was using. S.B. was very upset during the conversation.

[56] C.B. testified that the two families are no longer friends because of this incident.

K.M.S. – First Witness for the Defence

[57] K.M.S. testified that she had been dating the accused for a few months as of June 6th, 2011.

[58] She had been "hanging out" with S.B. that day in Mississauga and she decided that they would meet up with G.M. A-S.

[59] G.M. A-S and his friend, W.S., came to Square One and picked them up in his car. All four of them decided that they would go to W.S.'s house in the country and hang out.

[60] K.M.S. introduced S.B. to G.M. A-S and W.S. as her "younger cousin". She did not tell G.M. A-S S.B.'s age.

[61] K.M.S. told G.M. A-S how old she was – which was 16 or 17 years of age at the time.

[62] On the way to W.S.'s house, the "boys" stopped at a liquor store. K.M.S. asked them to get her a six pack of Coronas.

[63] Then they drove to W.S.'s big property in the country. K.M.S. is not sure what time they arrived. She "guessed that it was two or maybe three in the afternoon".

[64] The house was under construction and did not have any working lights.

[65] There was a big garage with stairs that went up to an apartment.

[66] When they first arrived, she and S.B. used the washroom in the apartment.

[67] Then she and S.B. went downstairs and they drank alcohol around the bonfire.

[68] At one point she, S.B. and G.M. A-S went back into the house and hung out. W.S. was still working on the bonfire.

[69] K.M.S. left S.B. and G.M. A-S on the deck and went back to the bonfire to get a lighter because the three of them were going to smoke. K.M.S. returned to G.M. A-S and S.B. two to three minutes later. S.B. did not seem to be upset.

[70] K.M.S. testified that she could see G.M. A-S and S.B. the entire time because they were standing on a deck just above the bonfire.

[71] When she returned to them they all smoked a cigarette. They all hung around the bonfire until it started to get dark.

[72] Then they headed back to Mississauga and were dropped off at the Square One bus terminal. She and S.B. took the bus back to her house in Etobicoke. It took them about two hours to get home by bus.

[73] S.B. was in a good mood throughout. At no time did S.B. ask to leave or to be taken home.

[74] K.M.S. could not remember who drove the car to and from W.S.'s house.

[75] K.M.S. testified that S.B., C.B. and their mother were staying over at K.M.S.'s place. Everyone, including K.M.S.'s mother, was there when she and S.B. came home.

[76] K.M.S. saw S.B. the next day. K.M.S. testified that she never heard anything about S.B. being upset until a week or two later. It was her own mother that told her. Her mother called her on the phone and said that they were going to the police station.

[77] K.M.S. testified that she is no longer talks to S.B. She stated, "I don't believe in being friends with people who like making up lies about friends of mine."

[78] In cross-examination, K.M.S. said that she didn't go to the station and give a statement to police in this matter when they requested it because she was "already on my way to do something else and I gave it over the phone." In that July 12th, 2011 conversation she told Detective Mulholland that G.M. A-S and S.B. may have been alone for four to five minutes.

[79] K.M.S. denied telling the Officer that S.B. had exaggerated.

[80] K.M.S. said that she was working at the tanning salon in June of 2011. The name of the salon was "Tanned Bodies". She could not remember if she told her family that she was going to work there on June 6th, 2011. She can't remember how she got to Mississauga that day.

[81] She absolutely did not tell S.B. that she was going to work at the tanning salon that day. She did not tell S.B. that she could hang out at the salon while she worked a shift. In the morning she went by the tanning salon and had a tan.

[82] Then she went to Father Michael Goetz High School to get a copy of her I.D. because she did not have any I.D. at the time. She got to the school about noon. School was in session.

[83] Then she called G.M. A-S so they could "meet up". They probably met up at Square One. They did not meet up at the school.

[84] K.M.S. could not pronounce or spell the accused's last name. She called him Gio. K.M.S. has met W.S. a few times.

[85] She introduced S.B. to them as her "little cousin". There was no discussion of how old she was or what grade S.B. was in school.

[86] K.M.S. is not sure of the times of events on June 6th, 2011. She thinks they got to W.S.'s place between three and four in the afternoon. She had never been to W.S.'s place before.

[87] S.B. knew they were going to W.S.'s place and she was fine about it.

[88] K.M.S. stated that there were no drugs consumed on the day in question. No one smoked marijuana. They drank alcohol.

[89] When they first pulled onto W.S.'s property there were three to four members of his family there. She said "hi" to them all. The family members left and W.S. started building the fire.

[90] S.B. was with her the entire night except for the time K.M.S. went to get the lighter. If K.M.S. was alone with G.M. A-S in the house, S.B. would have been just outside on the deck. She may have texted S.B. and told her to come upstairs when she was up there with G.M. A-S. It is possible, but she does not remember it.

[91] W.S. always stayed by the fire. She, S.B. and G.M. A-S walked between the deck and the fire together.

[92] She split the six pack of beer with S.B. The "boys" were not drinking any alcohol. K.M.S. denied telling the investigating officer that G.M. A-S was smoking a joint on the drive home and that she and S.B. smoked part of that joint too.

[93] She did not give a formal statement to the police in this matter because S.B. "is lying". S.B. may have lied because she may have been "jealous" of her relationship with G.M. A-S. S.B. must be lying because K.M.S. did not hear her yell or scream when she was with G.M. A-S. K.M.S. agreed that she would not have been able to hear this when she was at the bonfire. K.M.S. stated that she would have been able to see though because it was not that dark outside at the time. K.M.S. stated that S.B. and G.M. A-S were not together long enough for anything to happen.

[94] K.M.S. stated that she was holding hands with G.M. A-S that night but that they were not having sex.

[95] She ended her relationship with G.M. A-S shortly after June 6th, 2011 when the police became involved.

Testimony of G.M. A-S – Second Defence Witness

[96] The accused was born on […], 1992.

[97] He lives in Mississauga with his parents. He has a twin brother.

[98] His family is purchasing a car dealership and he will work there selling cars. He has been working in the family's pizza business.

[99] On June 6th, 2011, he was in his car driving with W.S. They were going to W.S.'s house in Milton to pick up a car part. On his way there, K.M.S. called him. She said she was by the gates at the plaza and asked him to come and pick her up. He had "nothing to do", so they went and picked her up. K.M.S. was with her cousin S.B. He had never met S.B. before. K.M.S. introduced S.B. as her cousin. This happened at eleven o'clock or twelve o'clock in the afternoon. He pulled into the plaza and K.M.S. (and S.B.) got in the back because K.M.S. knew his car. He was driving a white Acura. W.S. was in the front passenger seat.

[100] He knew K.M.S. through a friend. They had been "talking" for two or three months and were trying to "date". He was broken up with his girlfriend Lauren at the time.

[101] Along the drive to Milton he stopped at a Mac's store to buy cigarettes. W.S. went to get some beers.

[102] He did not ask S.B. any personal questions because he "wasn't really interested".

[103] K.M.S. and S.B. both wanted to go to Milton because they had "nothing to do".

[104] They pulled into W.S.'s place. W.S.'s father was there. They arrived at 12:00 or 12:30 p.m.

[105] W.S.'s house was under renovation. W.S. used to live there, but he did not know if anybody was living in the house at the time.

[106] He and W.S. rode around on the four-wheeler ATV until W.S.'s parents left. They took turns on the ATV. K.M.S. and S.B. were "chilling by the car".

[107] Then they got the fire started. K.M.S. helped him get little trees to burn in the fire. They sat around the fire for a few hours.

[108] He did not really pay attention to where S.B. was because "everybody was all over the place".

[109] W.S. had a couple of drinks. K.M.S. was drinking. He thinks S.B. was drinking. He did not drink anything. They did not pull out a mickey of whiskey. He does not drink hard liquor.

[110] Everybody was having a good time.

[111] He did not put his arm around S.B. or ask her to go for a walk. He did not "grab her boob". S.B. was never that close to him and he was not really paying attention to her. He did not really talk to S.B. W.S. was talking to S.B. He was talking to K.M.S.

[112] S.B. and K.M.S. went into the house to use the bathroom at some point. He did not go into the house at any time.

[113] "They went upstairs to go to the washroom and then I just basically asked K.M.S. for a light on her way down and she just basically threw it to me from upstairs." K.M.S. was bringing down a beer or something.

[114] He was never alone with anybody. He did not tell K.M.S. to drop to her knees. He never told K.M.S. to "go take care of my boy". He did not slap K.M.S.'s face. He never put a hand on her.

[115] They decided to leave because it was getting dark and W.S.'s parents were going to come back. They left around 6:00 p.m. They had been at the house for three to four hours – maybe six hours at the maximum. It was not dark when they left.

[116] He was not smoking marijuana. Nobody had any marijuana. He was smoking cigarettes.

[117] W.S. wanted to leave. Everyone else wanted to stay. Even on the ride back, everybody was happy.

[118] K.M.S. and S.B. wanted to be dropped off at Square One to "chill with more people or something". It was dark by the time they got back to Mississauga.

[119] He was never asked to drive them into Toronto. He thought K.M.S. lived in Mississauga.

[120] He dropped W.S. off at a house on Creditview and then he just went home.

[121] K.M.S. called him the next morning and told him "everything is okay".

[122] K.M.S. kept calling him until he got "in trouble with the cop". The cop told him not to talk to W.S. or any of them. Then he got disclosure and found out what kind of family K.M.S. was from. He did not know it was like that, so he stopped talking to her.

[123] In cross-examination, he tried to explain why he kept telling the investigating officer in his statement that he had a girlfriend named Lauren for the past two years as of June 6th, 2011.

[124] The accused stated that he did not tell the officer that he was on a "break" with Lauren at the time and he had been "talking" to K.M.S. for a few months. He did not tell the officer that he and K.M.S. had kissed and held hands "and stuff".

[125] He agreed that he repeatedly told the officer that because he had this long-term girlfriend he would not touch another woman.

[126] The accused testified that he had known K.M.S. for two to three months but they had just recently begun talking.

[127] He did not really pay any attention to S.B. and he did not ask how old she was.

[128] He thought K.M.S. worked at the tanning salon at the time.

[129] He did not stop at a Wendy's when he drove the girls back to Mississauga.

[130] The accused testified that it was daylight the entire time they were at W.S.'s place. When they got back to Mississauga at around 6 p.m., the sun was going down.

[131] He only went into the garage at W.S.'s place to grab a muffler. He repeated that at no time did he go into the house. The accused testified that all the lights in the house were working. He knows this because the garage has an automatic door.

[132] Everyone was excited to be at W.S.'s "mansion".

[133] The accused repeated that he was never upstairs alone with K.M.S. He denied being alone with S.B. He repeated that the only time he went upstairs was to get that lighter from K.M.S. "I didn't really chill upstairs". He did not use the washroom.

[134] The accused stated that he did not think that K.M.S. went into the house. Only S.B. went into the house.

[135] Everybody was smoking cigarettes. There was a joint smoked that night. K.M.S. pulled it out and everybody smoked it before they left the house.

Analysis

[136] This case requires a careful assessment of the credibility and reliability of each of the witnesses' testimony based on the three-pronged test set out in the seminal R. v. W.D. case.

[137] S.B.'s evidence was consistent throughout. She was not challenged with respect to the defence versions of the events contrary to the rule in Browne v. Dunn. There was little to no opportunity during this trial to see what her response would be based on the defence evidence of K.M.S. and then the accused.

[138] The Crown called no evidence to support K.M.S.'s alleged confession to S.B. that K.M.S. was selling her body on a website set up by Gary, the man who apparently owned this tanning salon in Mississauga. K.M.S. was not cross-examined in this area at all. The accused was not cross-examined on this area at all.

[139] Neither counsel asked S.B. or K.M.S. why they were not in school on Monday June 6th, 2011. According to both S.B. and K.M.S., K.M.S. went to her high school that day. School was in session. S.B. said K.M.S. went to speak to another girl there. K.M.S. said she went to get a copy of her I.D. Counsel did not ask any questions about the strange attendance at the school.

[140] Where were both of these girls' mothers? Brief references were made at trial that both mothers were away on business. C.B. and S.B. testified that K.M.S.'s mother was working at a Mississauga hotel. K.M.S. makes no mention of this. In fact, she stated that S.B.'s entire family was staying over at her mother's house in Etobicoke and everyone, including both sisters, were there when S.B. and she took the bus back from Square One.

[141] How did the accused come to know K.M.S.? He repeatedly said that he had known her for a few months but had just recently started to talk to her. Did he come to know her through the internet web site? Did W.S. know K.M.S. first because of this web site? No one asked.

[142] What happened to K.M.S., if anything, when S.B. disclosed this explosive secret about this sex website to the mothers and the police? No one asked. Did K.M.S. pay big consequences for this activity and/or for taking her younger "cousin" into the country with two men she did not know? No one asked. Is K.M.S.'s hostility to S.B. motivated by the fact that S.B. spilled her secrets about the sex website and the use of drugs? No one asked.

[143] Did the accused tell K.M.S. to get on her knees, tell her to go take care of his boy and later slap her face after he had been with S.B.? No one asked K.M.S. about S.B.'s testimony in this area.

[144] Both Crown counsel and defence counsel left gaping holes in the evidence.

What Was the Nature of the Relationship Between K.M.S. and the Accused on June 6th, 2011?

[145] I reject the evidence of both K.M.S. and the accused that they were dating or in some kind of romantic relationship before June 6th, 2011. They knew very little about each other.

[146] K.M.S. testified that she knew the accused's name to be 'Gio'. She could not pronounce or spell his last name.

[147] K.M.S. gave zero evidence about any prior meetings or conversations she had with the accused. The only thing she knew, besides his cell phone number, appears to be the description of his car – the white Acura.

[148] The accused did not know where K.M.S. lived. He thought maybe it was Mississauga or Square One.

[149] The accused as well gave zero testimony about any prior meetings or conversations with K.M.S.

[150] He told the investigating officer upon arrest that he had a girlfriend named Lauren for two years. The accused changed this at trial and said that he was on a break at the time from his girlfriend and he was trying to date K.M.S.

[151] There was no evidence from S.B. that she had heard her good friend K.M.S. refer to G.M. A-S before June 6th, 2011. She repeated that he was a stranger to her – she did not know who he was.

[152] I conclude that K.M.S. and the accused barely knew each before June 6th, 2011.

What Time Did the Events Occur on June 6th, 2011?

[153] S.B. testified that the men picked them up in Mississauga at 4:30 p.m. and they left the property around midnight.

[154] C.B. testified that her phone conversations with S.B. occurred when it was dark out and late at night.

[155] K.M.S. testified that they arrived at the Milton property at 2:00 or 3:00 p.m. They stayed at the property until it started to get dark.

[156] The accused testified that he picked the girls up at 11 a.m. or noon. They arrived at W.S.'s place at noon or 12:30 p.m. They left 3 to 4, maybe 6 hours later. When they left it was not dark. He also testified that they arrived back in Mississauga at approximately 6 p.m., at which point it was dark.

[157] K.M.S.'s evidence is inconsistent with the accused's evidence. The accused's evidence is inconsistent within itself.

[158] S.B.'s evidence is corroborated by her sister C.B.

[159] I find as a fact that the events in question started in the mid-afternoon and ended late at night, around midnight, when it had been dark for some time and the bonfire had been burning for a number of hours.

Who Consumed Drugs and/or Alcohol?

[160] S.B. testified that the men were drinking whiskey and K.M.S. was drinking beer. The accused was smoking marijuana. On the bus ride home it appeared to her that K.M.S. was under the influence of drugs. S.B. said that she was not drinking. She did not mention smoking any marijuana that night. She said that she smoked some with K.M.S. the next morning.

[161] K.M.S. testified that no one smoked any marijuana. Only she and S.B. were drinking the beer. The men drank nothing.

[162] The accused testified that everyone but him was drinking alcohol. In examination in-Chief he testified that nobody smoked any marijuana. In cross-examination he changed his evidence and said that everyone shared a joint of marijuana before they all got back into the car and he drove to Mississauga.

[163] I conclude that all of them were smoking marijuana. Alcohol was also consumed throughout this stay on the property. Whether other drugs such as MDMA were consumed I do not know because neither counsel asked the question.

Was the Accused Alone With K.M.S.?

[164] K.M.S. says no because S.B. was with her at all times except for the story about fetching a lighter down at the bonfire.

[165] The accused spoke of K.M.S. helping him find trees and things to put in the fire. They were not with S.B. and W.S. at the time as everybody was all over the place.

[166] I conclude that the accused was alone with K.M.S. for this walk about the rural property and I reject the accused's evidence.

[167] S.B. has testified that the accused was alone with K.M.S. inside the dark house before she received the text to enter the house alone.

[168] K.M.S. denied being inside the house with the accused, but said, if she was, then S.B. was right outside the door.

[169] The accused denies ever entering the house and goes further and insists that the lights inside the house were working. He knows this because the garage door was automated. If he was not ever in the house, how could he know if the lights were or were not working? He could not know.

[170] Again, I reject his inconsistent evidence and I find that he was inside the unlit house alone with K.M.S. for a period of time when S.B. remained at the bonfire with W.S.

Was the Accused Alone in the House With S.B.?

[171] S.B.'s testimony about being texted to come into the house and what happened thereafter was detailed, compelling and unshaken in cross-examination.

[172] K.M.S.'s evidence was a defiant and inconsistent denial that she had S.B. out of her sight for even a second. Alternatively, if S.B. was in the house alone with the accused, there was not enough time for anything to have happened between them. Further, she claims that if anything did happen to S.B., S.B. would have yelled or cried out. Since S.B. did not yell or cry out, nothing must have happened. This evidence is rejected as being self-serving on K.M.S.'s part.

[173] Again the accused claims in the 3 to 4 to 6 hours he was at the "mansion" having a great time, he never stepped a foot into the house.

[174] I reject his evidence as it is contrary to common sense. He as well refers to K.M.S. throwing a lighter up to him. That makes no sense unless he was near the upper part of the house. I find as a fact that he was inside the house and he was alone with S.B. as she has testified to.

Did the Accused Sexually Assault S.B.?

[175] I have rejected as untrue K.M.S.'s testimony and the accused's testimony on all the issues that surround the main allegations. Even with the advantage of hearing K.M.S.'s testimony before he took the witness stand, the accused did not maintain a consistent story with K.M.S.'s, nor is he consistent within his own version of the events.

[176] K.M.S. has many reasons to lie to the Court in this trial. She was the one who brought her younger 'cousin' into this situation. She is the one who orchestrated the outing to this rural property. She bears responsibility for S.B.'s fear and upset on the evening in question.

[177] I find as a fact that S.B. was fearful, distraught and upset on the evening in question.

[178] I find as a fact that the accused was alone with her in the dark apartment in the house under construction. I find as a fact that the accused made sexually degrading comments in front of her and to her and that he did sexually assault S.B. in the manner in which she has reported to police and consistently maintained throughout this long trial.

[179] The accused made no inquiries as to S.B.'s age. He took no steps at all to learn her age. I find as a fact that he did not care about it. This grounds the finding of guilt on the sexual interference count.

[180] I have considered the evidence as a whole in coming to this finding. Criminal trials are not credibility contests. The Crown bears the high onus of proof beyond a reasonable doubt, and the onus of proof does not shift to the accused.

[181] For these reasons, I find the accused guilty of sexual assault and sexual interference. I will register a stay on one of the counts at the request of the Crown given that the facts make out both offences. (R. v. Kienapple, [1975] 1 S.C.R. 792).

Released: August 12, 2014

Signed: Justice L.M. Baldwin

Obiter

Reasons for Judgment

This matter was originally set for 2 days and is yet another example of the chronic and seriously under-estimated trial time by counsel. This factor no doubt played some part in the poor presentation of the case by both Crown and Defence counsel.

During the course of this trial, all of the witnesses' evidence, Exhibits filed, and submissions made, have been carefully reviewed and assessed. It is not necessary or reasonable for me to review all of the evidence in any more detail than I have in these focused reasons for judgment. It must be understood that busy trial court Judges must deliver both oral and written reasons in hundreds of trial matters every year and we are required to do so in a timely fashion. Judgment writing time is not adequately factored into trial time estimates by counsel. In Halton, the fastest growing Region in Canada, judgment writing time is being eroded by the increasing trial case load and the pile up of long, split-up trial continuations.

This Court is aware of appellant authority governing the sufficiency of reasons by trial Courts and has been guided accordingly. See R. v. Vuradin, 2013 SCC 38, [2013] S.C.J. No. 38; R. v. S. (T.), [2012] ONCA 289; R. v. H. (J.M.), 2011 SCC 45, [2011] 3 S.C.R. 197; R. v. Drabinsky, [2011] 107 O.R. (3d) 595; Decision-makers under new scrutiny: sufficiency of reasons and timely decision-making, David Stratas, Administrative Law Roundtable (C.I.A.J.) May 2010; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621; R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. Burnie, 2013 ONCA 112, 294 C.C.C. (3d) 387.