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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2014-07-29

Court File No.: Central East - Newmarket 4911-998-13-03242-00

Between:

Her Majesty the Queen

— and —

R.G.

Before: Justice P.N. Bourque

Heard on: June 23, 24, 26 and 27, 2014

Reasons for Judgment released on: July 29, 2014

Counsel:

• M. Dionne — counsel for the Crown
• D. Mideo — counsel for the accused R.G.

BOURQUE J.:

OVERVIEW

[1] The defendant is charged with a total of four counts, ranging from sexual assault and sexual interference with a person under 14 years of age. It is alleged the events took place between 1993 and 1995 and during that period he continued an intimate consensual relationship with a girl whose age ranged from 11 to 13 years while he was between 25 and 27 years of age. It is conceded by the defence that none of the provisions of section 150.1 of the Criminal Code apply here to afford the defendant a defence of consent. The issues turn solely on the question of the credibility of the witnesses and applicable burdens of proof.

EVIDENCE

S.S.

[2] ...is now 32 years old and is employed in a group home for deaf and blind people. She states that when she was about 11 years old, she and her family moved to her Uncle's home. Staying at that home was the defendant, who worked in a scrap metal yard, which was the family business. After staying in that home for about a year, her family moved to a house right behind the Uncle's house.

[3] She stated that upon moving into the house she developed a "crush" on the defendant. She stated the defendant would play fight with all of the children in the home on many occasions (there were five of her siblings in the home with her parents).

[4] She stated the defendant would go out on Thursday nights with his friends to bars. One night he returned home and when she was sleeping came into her room and touched her on her back. She did not recall anything else happening and he left.

[5] After this she stated that the defendant would come into her room at night (usually after her parents went to bed) and he would kneel by the side of the bed or lie down beside her. She said this happened every week, maybe two times. She stated he would rub her back and stomach and chest and sometimes they would kiss. She described the relationship developing as "boyfriend and girlfriend."

[6] She stated she and her family moved to a house very close by. It was actually right behind the house they left. She felt that she and the defendant were "boyfriend and girlfriend" and they would meet in the garage or other rooms where no one else was. It was a mutually secretive relationship. She did relate that on one occasion when the defendant was "kissing" her exposed breast her sisters, N. and R. chanced upon the scene. She did not describe any repercussions from that. She also stated that her mother came into her room one time when the defendant was with her and they were cuddling. She stated that her mother "gave her shit." There is no indication her father was informed of any of this as he would have taken steps against the defendant.

[7] She describes an incident in the living room of their new house where he performed oral sex upon her. She describes that she performed oral sex upon him on at least one other occasion. She stated that he performed oral sex upon her several other times. She was very unclear about most events, but did describe the event in the living room and stated they were watching "wrestling" at the time.

[8] She also stated that they would see each other and "cuddle and kiss."

[9] She told her friend L. what was going on. On one occasion, when L. was at her house, she arranged to go to the defendant's home by telling her mother she was going to the nearby store. While at the defendant's home she engaged in sexual intercourse with the defendant in his room, while L. watched TV in the adjacent living room.

[10] She stated that was the only time she had sexual intercourse with the defendant. She stated she took her clothes off and only remembers him being on top of her.

[11] She stated that once she was in Grade 9 and realized this behaviour was not appropriate she did stop seeing the defendant. She stated that all of her actions were consensual, but that he had taken advantage of her because of her age. She stated the defendant was in his 20s when she was 11 and that this went on until she had just turned 14 years old.

L.B.

[12] The witness is now 32 years old and was the complainant's best friend when they were 11 to 14 years of age. She stated they became good friends in Grade 6 and stayed good friends until they went to different high schools and they lost touch. In fact this witness says she had not spoken to the defendant from that time until this, when the complainant called her to apologize for not letting her know the police were going to contact her. She says other than that conversation the only other time she has spoken to the complainant since Grade 8 was when she met her in court today. She was not challenged on this assertion.

[13] She stated she would visit the complainant's home when she was living with her parents. She stated she would often observe the defendant coming up to the complainant and kissing her neck and pushing himself against her and "touching her where he probably should not have." She confirmed the complainant told her about her relationship with the defendant and she stated she also saw them kiss at other times. She stated that "it was a big thing that they had to hide their relationship." S. told her to keep it a secret as no one would like it if they knew. She asked S. if she thought he was too old for her but S. seemed to be okay with it. She never told anyone (other than the police, who contacted her in 2013) about any relationship between the complainant and the defendant. In cross-examination she was questioned as to why she did not say anything about a relationship that was wrong. She denied it was because she had not seen anything but stated, "She asked me not to tell, being 11 and 12 years old (at the time) I didn't think that he would try to hurt her."

[14] She describes an incident where she and the complainant went over to the defendant's home and the complainant and the defendant went to the back of the house where the bedrooms were and stayed there from 1/2 to 3/4 of an hour. She stated she was watching TV and did not hear or see anything specifically going on. She stated that when she and the complainant were walking home, the complainant told her she had sex with the defendant.

D.S.

[15] ...is 28 years old now and was between 7 and 11 years of age between 1993 and 1995. She is the sister of the complainant.

[16] She stated that when they lived at the Uncle's house she remembers very little other than who lived there. She describes the house as small with some 10 people living there, including the defendant. She stated that she treated the defendant as a member of the family.

[17] She stated that she and two sisters slept in the basement. She did not correctly identify the bedroom of the complainant in examination in-chief. She stated she thought the complainant and the defendant were "close", although she did not mention any actions which exemplified this conclusion. She stated however that they would all play together many times, including the defendant. The complainant told her many years later that she had a sexual relationship with the defendant. She made no direct observations of any untoward conduct between the complainant and the defendant.

H.S.

[18] ...is the father of the complainant. He described the home scene at the home of his brother in 1990 - 1991. He lived there with his wife and 6 children. The defendant lived there as well. He described that they would have parties with friends on the weekends and stated there would be alcohol and drugs. He stated he thought the defendant and his children all got on, although he described the defendant as a "whiner" and would complain about things (mainly at their work). He confirmed that payday was every Thursday and that he and others, including the defendant, would meet for a drink after work.

[19] He was not aware that his daughter was having some sort of relationship with the defendant. He did however at the close of his testimony volunteer (without specifically being asked) that he had seen the defendant lying on a bed with his daughter in his daughter's room on one occasion. He however stated that he "thought nothing further of it." I can only assume that he did not think at the time it was significant, and I would give this observation little weight.

D.S.

[20] ...is the uncle of the complainant. He owned the house that her family lived in for a year or so. He confirmed the layout of the house, but he simply thought everyone got along and he was not aware of any relations between the defendant and the complainant.

R.G.

[21] ...the defendant, testified in his own defence. He is 46 years old. He is therefore more than 14 years older than the complainant.

[22] He states that he has a criminal record which includes two drinking and driving offences, one breach of probation, one fail to comply and one conviction for sexual assault in 2012. He admitted this record.

[23] He was living in the house of D.S. when H.S. and his family moved in. He said they were there for about a year. He confirmed the layout of the bedrooms of that house as contained in Exhibit #1, which was drawn by the complainant, and specifically that his bedroom is beside the complainant's bedroom.

[24] He stated he worked at [a family business], which was owned by the complainant's grandfather. He stated that many [family members] worked at the premises and he did not get along with them. He stated he had a fight with the complainant's brother and an argument at work with the complainant's sister. He stated that he did a lot of cocaine and other drugs but less alcohol. He agreed they would be paid on THURSDAYS and sometimes he would go with the other workers for a drink or get some drugs and come back to the house and party. He described the scene (like all the others) as a party house on the weekends.

[25] He stated he was like a big brother to the children, including the complainant, who was several years older than the other children. He described it in somewhat idyllic terms with him being the only one who would fix their toys and they would all gather round as he fixed them. He stated he would play fight with them and that the children would "cuddle" up to him. He denied that the complainant ever cuddled up to him without the other children being present.

[26] With regard to the complainant's allegations of the many sexual improprieties during this period, he denied them all. He was never alone in the complainant's bedroom, never had sex with her, never gave her oral sex, never kissed her on the lips, hugged her from behind or felt her breasts, and never followed her into the bathroom. He also denied that L., whom he only remembers seeing once at the complainant's house, would have seen him kissing the complainant or coming up behind her and rubbing up behind her. He denies that L. ever came to his house.

[27] He was however aware that she had a crush on him and that she thought she was his girlfriend. The defendant never explained how she manifested these feelings, but only once ever expressed feelings verbally for him. It was his evidence that he just knew that was the case.

[28] He did however admit that he was, for several years, carrying on a sexual relationship with S.'s mother. He stated they would meet in a van on the property or go out into the field to have sex. He believed their affair was completely secret, and the complainant would not have known about it. I would note here that no other witness ever mentioned anything about this (even H.S., the ex-husband).

[29] When asked about his alcohol and drug use, he at first just spoke of them generically but, when pressed in cross-examination, he stated he mostly did cocaine because it kept him awake and you can remember everything.

ANALYSIS

REASONABLE DOUBT

[30] The burden remains upon the Crown to prove the charges beyond a reasonable doubt. As stated in R. v. Lifchus, [1997] 3 S.C.R. 320:

• the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;

• the burden of proof rests on the prosecution throughout the trial and never shifts to the accused;

• a reasonable doubt is not a doubt based upon sympathy or prejudice;

• rather, it is based upon reason and common sense;

• it is logically connected to the evidence or absence of evidence;

• it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and

• more is required than proof that the accused is probably guilty -- a jury which concludes only that the accused is probably guilty must acquit.

[31] Where, as here, the defendant testifies and provides a denial which, if believed, would afford him a defence, I must apply the doctrine of R. v. W.D. (1991), 63 C.C.C. (3d) 397 (S.C.C.) at pg 409 in assessing his evidence:

• First, if you believe the evidence of the accused, obviously you must acquit.

• Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

• Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[32] I have the following difficulties with the defendant's evidence and the following issues impact negatively on his credibility:

• by his own admission he was a significant user of cocaine, and partook of it more than once per week, and I also find he used alcohol and other illicit drugs;

• his description of his relations with the children in my opinion goes much beyond a "big brother." There was significant physical contact with the children;

• his stated relationship with the complainant's mother confirms he is capable of a furtive and secretive relationship while living in a crowded household, like the one described by the complainant;

• his statement of only seeing L. a very few times is hard to believe when L. was at the complainant's house most weekends and for a lot of the summer. I also note that the houses were right behind each other;

• his statement that the complainant was not allowed to come over to D.S.'s house is not borne out by any evidence of D.S.; and

• of most importance is his evidence concerning the fact he believed the complainant felt she was his girlfriend, but not giving any indication as to how she expressed that. Notwithstanding his saying they had but one conversation about it, he believed this illusion on her part went on for the better part of three years. None of the other children expressed this to him. She was the eldest child. He completely denies that she manifested it in any physical or other contact with the defendant. This is hard to believe and makes it impossible to simply accept his denials.

[33] Having not accepted the evidence of the defendant, can it none the less leave me with a reasonable doubt? It does not. It is simply a denial and does not suggest to me an explanation which could be reasonable.

[34] I am thinking about the opportunity which this young woman presented to him. I also note his extensive evidence concerning the one time he said they were alone (at the new home watching a movie after the parents had gone to bed). Why remember this scene so vividly if nothing untoward happened?

[35] Having rejected the defendant's evidence, that does not end the matter for I must assess the evidence that I do accept to determine whether it leaves me with a reasonable doubt.

[36] The defence states there are sufficient discrepancies in the complainant's evidence, and sufficient discrepancies in the evidence of the other witness, that I cannot accept the evidence of the complainant and thus have a reasonable doubt about all of the charges. He points to the fact the witness is not sure of dates and many specifics within that two and a half year period. Quite frankly I would be amazed if a youthful participant in these activities, happening with such frequency, would have a clear recollection of all of them. She has specific memories of the first incident in the Uncle's home, the sexual intercourse in the Uncle's home (after she had moved) and the first instance of oral sex performed on her in the living room of her home.

[37] Defence points out that there are discrepancies in the discussions between the complainant and her friend L. That may be so, but L. confirms two very important aspects of the matter, namely, that the defendant and complainant would kiss and hug when they weren't seen by others and there would be touching, which was clearly for a sexual purpose, and that she went to the defendant's home with the complainant and the defendant and complainant went down the hall to the bedrooms together and did not return for 1/2 to 3/4 of an hour. While she did not witness the actual event, for her to recall this incident some 9 or 10 years after the event, and after losing contact with the complainant for most of those years, speaks to how that event stuck in her mind as being significant.

[38] The defence properly points out that the complainant says her mother came into her room when the complainant and defendant were "CUDDLING" on her bed. The defence points out that while the complainant says her mother was angry with her, there is no indication the mother ever told the father. I agree that could cause me to pause, unless of course the mother was indeed having an affair with the defendant.

[39] The defence also points to the complainant's statement that she was discovered in the garage with the defendant when her sisters came in and there was no repercussion from that incident. Indeed D. in her evidence makes no reference to it at all. I think I would have to take into account that her sisters were very young children. A scene which was obvious to the complainant may not be obvious to a younger child. It is a discrepancy to be sure, but I do not feel they are fatal to the assessment of the complainant's credibility.

[40] The defendant also points out that none of the other family witnesses in this case saw anything going on between the defendant and the complainant that was such as to concern them. He points out that they lived in small houses and there would often be guests at the house. I do not find that aspect troubling as there was evidence from the complainant and L. that the defendant and the complainant were at pains to keep their actions secret. I also do not think it really impacts upon the complainant's testimony that, in furtherance of the secretive nature of this relationship, she lied to her mother about going to the store when she was meeting the defendant in his bedroom. She was 13 or 14 years old.

[41] The complainant's testimony was not shaken in any meaningful way. She appeared to be candid in her responses to questions. She was in all respects a credible witness.

[42] The discrepancies and items which would affect her credibility are noted above. The evidence of her former friend L. and the observations she made of the defendant and the complainant together, and especially her attendance with the complainant at the home of the defendant, remove from my mind any doubt about the guilt of the defendant.

[43] Looking at the total scene, it is clear this defendant was the recipient of the affections of a young girl. It is clear that he was aware these affections continued and were not just a transitory thing. He had developed a close rapport with all of the children such that his hugging them was not seen to be untoward. That he would then begin to take advantage of this girl's affections, slowly at first and then with greater abandon, is a logical outcome of this state of affairs.

CONCLUSION

[44] At the conclusion of the trial the Crown stayed the charge of sexual interference by a person in a position of trust and authority (count #4).

[45] The defendant will be found guilty of the charges of sexual assault, sexual interference with a person under the age of 14 years and invitation to sexual touching of a person under the age of 14 years.

Released: July 29, 2014

Signed: "Justice P.N. Bourque"