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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: September 4, 2014

Court File No.: Regional Municipality of Durham 998 12 14211

Between:

Her Majesty the Queen

— AND —

Christopher Akhtar

Before: Justice J. De Filippis

Heard on: July 11, 15, 16, & 23, 2014

Reasons for Judgment released on: September 9, 2014

Counsel:

• Ms. J. O'Connor — counsel for the Crown
• Ms. L. Riva — counsel for the Defendant

Judgment

De Filippis, J.:

Introduction

[1] The defendant was charged with sexual interference and sexual assault contrary to sections 151 and 271 of the Criminal Code. The offences are said to have occurred on 22 September 2012 in the City of Oshawa. The Crown called the complainant and her mother as witnesses and introduced the exculpatory statement of the Defendant. The latter testified in his own defence.

[2] At the time of the events in question, the complainant was 13 years of age and the defendant was 27 years old. It is alleged the defendant, a friend of the complainant's mother, went into the complainant's bedroom, during a party at the home, and touched her vaginal area. The defendant admits going to the room but denies any inappropriate conduct. The complainant impressed me as an intelligent young woman who endeavoured to provide a truthful and accurate account of what happened. Nevertheless, I must dismiss the charges. These are my reasons.

Complainant's Evidence

[3] The complainant lived in a townhouse with her mother, K.D. She has two older sisters and an older step-sister. These siblings lived elsewhere. The residence includes a kitchen and living room and a second floor with three bedrooms and a washroom. There is a patio area in the back yard. The complainant met the defendant for the first time on the day in question when he came to the home as a guest of her mother. The two adults drank vodka. At some point, the complainant and defendant were seated on the sofa in the living room. The former was wearing a t-shirt, shorts and underwear. The defendant made several flattering remarks about the young girl's good looks. He also asked her if she was ticklish and touched her inner thigh. The complainant moved away and said nothing. In a statement to police, she said the defendant's action "freaked me out" but at trial she testified it was "not serious enough" to warrant telling her mother. The complainant gave confusing testimony about when this occurred: she said it was while her mother prepared dinner early in the evening but also stated it happened after her mother and the defendant returned from a pub.

[4] According to the complainant, around midnight, the defendant and K.D. went to a nearby pub. They returned about one hour later, followed by "three men and one woman". All went to the backyard. The complainant went to bed, but sleep was difficult because of the noise made by the party on the patio. The racket was such that the complainant assumed all, including her mother, were "pretty drunk". She texted her mother three times imploring her to keep it quiet. A printout of these messages was filed at trial. The first one, at 2:28 AM, reads: "OMG [oh my God] can u turn it down. I have dance in the morning". A second one sent immediately thereafter reads: "I can't sleep. Can u turn it down". At 2:42 AM, she sent another text: "OMG mom everyone is so loud I can't sleep". The complainant felt "betrayed" by her mother for leaving her alone to go to a pub and was "annoyed" with her for hosting such a loud party.

[5] K.D. did not respond to her daughter's text messages. However, starting around 3 or 4 AM, the defendant came into her room "about five times". On the first two or three occasions, the complainant was using her cell phone and subsequently she was trying to sleep. At all times, the defendant said things that the complainant did not understand and/or cannot remember. She described this as "babbling" and attributed it to "the drinking". The complainant could not confirm the suggestion made to her that the defendant had entered her room to inform her they would keep the noise down, although she does recall that he said "good night".

[6] On the final occasion, "perhaps the sixth visit", the complainant was awakened by the defendant touching her vagina over her panties and "rubbing it". He then tried to move the panties to the side. When complainant moved, he said something like "Oh, I was just trying to figure out what was happening with the rooms…your mom said all of us are staying" The complainant replied, "I don't know…just go downstairs". The defendant left and the complainant immediately texted her sister. The time of this message is 5:38 AM: "I woke up and mom's friend was touching me in a way I didn't like. He's staying here over night and I don't want any fights. What do I do? Um and you don't tell her please but just tell me so you were asking what I should do." Within minutes, the complainant's mother ran upstairs demanding to know what had happened. By this time, the complainant had locked her door. She opened it and told her mother she had been touched. K.D. ran back downstairs and the complainant heard her accusation and the defendant's denial of improper conduct. At 5:44 AM, the complainant texted her sister to thank her for reporting the incident to their mother.

[7] The complainant did not see the defendant enter her room on the final occasion. The room was dark and she was not wearing her glasses during the incident. Although she could not see the face of the person, she recognized the defendant's voice – it was the same voice as the person who had previously entered her room and with whom she had spoken earlier in the evening. In this regard, she testified, "I vaguely remember he has a lisp". The complainant rejected the suggestion one of the other men had touched her inappropriately because "they were taller" than the defendant. However, she later agreed that one of the other men is shorter than the defendant. This person had the same first name as the defendant and was referred to as "white Chris", in contrast to the defendant who is black.

[8] The complainant strongly protested when the Defence accused her of fabricating these allegations to attract attention because she was annoyed at her mother and felt betrayed by her: "Why would I lie about something as serious as this…and get the police involved and come to court like this".

Evidence by the Complainant's Mother

[9] K.D. met the defendant at a bar several months before the events in question. This was the first time he had been to her home. After about four hours, during which they had dinner, she and the defendant went to the Banshee Bar, in a plaza across the street. Before leaving K.D. had consumed one vodka drink and the defendant had "several more". She said they left "around 11 PM" and returned with several of his friends – a woman and two men. She had "half a vodka drink" at the bar but noted that the defendant's behaviour revealed greater consumption – "he was loud and touching a girl who had to tell him to stop".

[10] By the time they arrived back at her home, the complainant was in her bedroom. The defendant used the upstairs washroom several times during the evening. She recalls three occasions and added "it could have been four or five". K.D. said he was the only one to do so and that the other men "went to the corner of the backyard to pee". K.D. quietly followed the defendant on the last occasion he went to use the washroom. She looked up from the bottom of the stairs, saw that the bathroom door was closed, and rejoined the party. Soon after, she received a text message from A.A., her other daughter, and learned the complainant had reported that she had been touched inappropriately. She testified the other two men were downstairs at this time. K.D. rushed upstairs but the defendant was not there. She found her daughter "crying hysterically" in her bedroom. Meanwhile, A.A. texted to advise she had called the police. K.D. ran downstairs and, seeing the defendant, picked up a knife and confronted him. She told him he could stay and be arrested or leave and be arrested later. The defendant denied any impropriety and left.

[11] K.D. acknowledged her daughter texted her several times about the noise. She told her guests to "keep it down". She noted that the defendant was the loudest and he once "grabbed the woman" in the kitchen causing her to "screech". The woman did not stay long. K.D. rejected the suggestion she sent the defendant to the complainant's room to assure her the noise would be kept down; "I would never send a man to my daughter's bedroom".

[12] K.D. denied consuming drugs or witnessing anyone else doing so in her home. The Children's Aid Society seized the complainant the next day "for a period of time" because of allegations of alcohol and drug abuse. K.D. said she "was sent for drug tests and I passed". A letter from the Children's Aid Society confirms this. She also denied ever being intimate with the defendant but conceded it had been agreed he defendant would spend the night at her home. She added that about 3 AM, she showed him an available spare room but he declined the offer.

Defendant's Statement to Police and Trial Testimony

[13] The defendant is a single man with no dependants. He is employed as a welder. He denied touching the complainant's vagina or other inappropriate conduct towards her. He said that after K.D. spoke to the complainant about the text message to her sister, she screamed at him while brandishing a knife. The defendant said he shook his head in disbelief and went home. He was arrested there about 15 minutes later. The defendant testified he is "devastated" by the charges.

[14] In a statement made to police after arrest he stated he had never been inside the complainant's bedroom. Twenty six minutes later in the interview, when confronted with the complainant's text message to her sister, he said that on one of the several occasions that he went upstairs to use the bathroom, he went into the room to apologize for the noise. He testified that he did so at the request of K.D. who had received the complainant's text messages but did not want to deal with her daughter personally. He noted that the complainant locked her door when he left.

[15] The defendant was introduced to the complainant for the first time on the night in question. He arrived with a bottle of vodka and two cans of "Rock Star". He met the complainant's mother several months earlier and they had had intimate relations on one occasion. Apart from the criminal allegations, he generally confirmed the complainant's account of the evening; that is, he had dinner with K.D. and her daughter, they left her to go to a pub, and returned with other people they met there to continue socializing at the complainant's home. The defendant said he consumed "five glasses of vodka", during the evening, and "one line of coke", at about 4 AM. He added that K.D. also consumed vodka and cocaine.

[16] The defendant admits that earlier in evening, while K.D. prepared dinner, he "tickled" the complainant as they sat together on the sofa. Not long before K.D. learned of the allegations and confronted him with the knife, she had shown him the bedrooms and offered one of the unoccupied ones for his use, explaining that they could have sex but not sleep together with her daughter in the house. The defendant declined this offer and told her he would go home.

Analysis

[17] The criminal law standard of proof is set out in the often cited decision of the Supreme Court of Canada in R v. W.D., 63 C.C.C. (3d) 397. To support of finding of guilt, each element of the offence must be proven beyond a reasonable doubt. In a case where the Defence adduces evidence, that standard is not met if the evidence (i) is believed, or (ii) is not believed, but leaves the trier of fact in reasonable doubt, or (iii) does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond a reasonable doubt, that the defendant is guilty. This does not mean the Defence evidence is to be viewed in isolation; on the contrary, it is to be assessed in context of the entire case: F v. R.D., [2004] O.J. 2086 (O.C.A).

[18] I do not accept the Crown's submission that the defendant's testimony was "rehearsed" and "down pat". His account of the events was straightforward and included the unfavorable fact that he consumed cocaine. The Crown is correct, however, to draw my attention to the fact the defendant initially said he did not enter the complainant's bedroom. This statement was made during a police interview after being arrested for sexual assault and sexual interference. He could not have forgotten that he entered the room. He admitted the fact twenty six minutes later, after continued questioning, and being confronted by a text message that suggested he was there. Moreover, the defendant told police the door was locked after he talked to the complainant. This is significant because the complainant said that after he touched her and left, she locked the door. These observations are of great concern and make me suspect all evidence from the defendant. It is unfortunate, therefore, that they were not clearly put to him in cross-examination. That said, this is not a case in which the "Rule in Browne and Dunn" was deliberately breached and, in any event, my verdict is determined by another issue.

[19] The Defence submits that the Crown has not proven its case because the complainant is not credible or reliable and had an animus toward the Defendant. It is suggested her story is not plausible and that her identification of the Defendant as the perpetrator is weak and raises a reasonable doubt. In any event, it is argued that an acquittal is required because the defendant's should be believed. As will be explained, I reject all these submissions – except the one pertaining to identification.

[20] According to the Defence, the complainant fabricated the allegations because she felt betrayed by her mother for leaving to go to a bar and was annoyed with her for having a loud party at the house. In this regard, it is noted that she texted her mom six times to express her discontentment; her mother did not respond and the party did not end until the defendant was confronted with the allegation. I agree with the Crown that this purported motive makes too much of the complainant's testimony and is undermined by the fact she did not alert her mother to the incident but contacted her sister for advice.

[21] The Defence claims it is not plausible that, before the incident in question, the complainant would text her mother about the noise but mention nothing about the fact that the defendant had been in her room up to five times. This is a reasonable submission but it does not cause me to disbelieve the complainant. She was only 13 at time and was focused on the noise, without thinking he might assault her.

[22] The Defence also points to the complainant's confusing evidence about when it was that the defendant touched her inner thigh, while they were seated on the couch. I am not troubled by this. Given the chronology of events as described all witnesses, it is clear this incident occurred during dinner before the defendant and K.D. went to pub. This is a mistake on the part of the complainant that has no implications with respect to credibility and reliability.

[23] The complainant is smart, articulate, and honest. I accept her testimony that she would not have gone to "the police and the court" if she did not believe she was touched inappropriately. The fact that the defendant had consumed alcohol (like all others at the party) and cocaine is relevant as these intoxicants can affect one's natural inhibitions. This, along with my aforesaid doubt about his version of events, points to guilt. However, this must remain in the realm of suspicion because the identification evidence is weak and I cannot safely rely on other trial testimony that would bolster it.

[24] The complainant testified that she was sleeping, has poor eyesight and was not wearing her glasses when awakened in her dark room. The complainant identified the defendant because she recognized his voice and added that he may have a lisp. I did not detect a lisp when he testified. In any event, the complainant just met the defendant on the day in question. I do not take comfort, as the Crown urges me to do, in the fact that he had been there for several hours. Moreover, the complainant also said that her identification was based on the fact that the defendant was shorter than the other men in the home. In so stating, this observation must rest on her assumption that the man who touched her was the same one who had previously entered her room. This follows from the fact that she did not see the man who assaulted her. I accept her sincerity but cannot rely on this opinion. In this regard, she also testified that another man, "white Chris", was shorter than the defendant.

[25] Acceptance of the testimony of K.D. would overcome the difficulties with the identification evidence. According to her, the defendant was the only person who went upstairs to use the bathroom and was on that floor just before the complainant texted her sister about the incident. This was relayed to K.D. almost immediately. Leaving aside the fact that the defendant was not upstairs when she ran to her daughter's bedroom – no man was there – I cannot rely on her evidence. She is certain of the defendant's guilt. I do not suggest she lied to me. However, she had been drinking alcohol since the defendant first arrived about eight hours earlier. It is not clear how much she consumed but I am satisfied it was enough to distract her. Indeed, she had not been attentive to her daughter's several requests to keep the noise down. Instead, the party continued for an additional three hours. In these circumstances, I cannot be confident of her assertion that the defendant had exclusive and timely access to the complainant.

[26] In arriving at my verdict, I have not discussed one item of evidence and related submissions: It is clear that during the evening in question, a man, Randy Whyte, threw a box of flowers on the main floor. He may have done so from the back yard sliding door or upon actually entering the home. In any event, he soon ran away. K.D. has known this man since childhood and his reputed substance abuse issues has complicated their relationship. I am confident this bizarre incident has nothing to do with the allegations in this case and does not assist me in my assessment of the credibility and reliability of the evidence.

[27] The Crown has not met its burden of proof. The charges are dismissed.

Released: September 4, 2014

Signed: "Justice De Filippis"

Footnote

[1] This is the second trial date. The first one was adjourned at the request of the defendant after he changed counsel.