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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Court File No.: Central East - Newmarket 12-04785

Date: February 7, 2014

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

K.E.B.

Before: Justice P.N. Bourque

Released: February 7, 2014

Counsel:

• J. Costain, for the Crown
• J. Neuberger, for the accused K.E.B.

Judgment

BOURQUE J.:

Overview

[1] The defendant who is an elderly man (some 62 years of age) is charged with sexual assault and sexual interference upon his granddaughter S.M.

[2] The events complained of are alleged to have taken place at night, while the grandparents were staying at her parent's home, in the context of a larger family gathering.

[3] Before reciting the evidence and my analysis, it is clear after the two days of trial that this previously close-knit family has been shattered by all of the allegations and the subsequent proceedings in this case. Whatever my decision here today, whether I end up sending a man to jail or he walks out of the court with an acquittal, I know that the pain of this entire matter will continue for this whole family.

Evidence

S.M.

[4] ...is thirteen years old today. She lives in a home in Aurora with her parents and two brothers. Her bedroom is upstairs with the other three bedrooms in the house.

[5] In the summer of 2012, she went with her family to a party for her mother's aunt. She arrived home with her parents and brothers and went to bed after 10:00 p.m. Staying in her room were her two younger cousins, who were sleeping on a mattress on the floor. Also in the house was her aunt and uncle J. and R., and her grandparents. Her cousin B. was also in the house sleeping in her brother Sc.'s room. When she went to bed she heard the sound of the adults speaking downstairs. She stated that she woke sometime later stating around 10:30 that Gramps (a name used by the children to describe the defendant) was standing beside her bed. She stated that he had taken her right hand and had it over his naked penis. She could not remember if he had an erection and could not remember any of his clothing other than the fact he had a zipper. The room was dark, but there was a light in the hall. She stated that she could see his outline.

[6] She stated that she heard someone coming up the stairs and he went over to the closet. He then came back and she was facing away. She stated that he took her hand again and again rubbed it on his penis. She then heard him say "go back to sleep". She called out for her mother who came upstairs. The defendant ran out of the room but she did not know where he went. She states that she told her mother things and she then went to the police station and made a statement.

[7] She admitted in examination in-chief that she had a history of sleepwalking and would sometimes be found by her parents in other parts of the house. She stated that it continued up to and beyond this incident.

[8] In cross-examination, she also stated that her grandparents would visit her house many times a year and as they came from Kingston, they would stay over. She also stated that she would go on long walks with the defendant alone with their dogs and nothing untoward ever happened and nothing untoward was ever said to her by him. She also stated that he had some health issues and he could not walk very fast.

[9] She also admitted in cross-examination that the mattress where the two cousins were sleeping was taking most of the floor space in her room. A person coming into the room would have to step over the mattress or walk around it. Several exhibits were filed showing the location of the mattress. She also admitted that the defendant has a dog that follows him everywhere. She did not see the dog in the room that night.

[10] The pictures filed as Exhibit 2 "A" to 2 "J", show a small and cluttered room. While it is certainly possible to negotiate a path to the witness's bed over the clutter and the mattress on the floor, I have to admit that it is hard to see how it could be done with any precision in the dark.

[11] The defence asked her about an incident in the house earlier in the evening where her Gramps scolded her for not letting one of the cousins play with her. She denied that incident. She also denied that she was upset with her Gramps for not coming to her sporting event earlier that afternoon.

[12] It was pointed out in cross-examination that she told her mother that the defendant had touched her on the bum during this incident. She did not say this to the police and did not say that in her evidence today. When asked by the Crown as to why she told her mother that, she responded "because it happened". The witness did not explain why she did not say this in her evidence in-chief or to the police.

[13] The witness also stated that she had spoken to her parents many times about the evidence she was going to give in court. She admitted to the defence that she "practised" it with them. She stated in re-examination that her parents had told her to tell the truth and when she could not remember something, to say that she could not remember.

[14] As a final matter, the witness admitted to the defence counsel that she had told many lies in the past, to her parents and to her teachers and others.

Sc.M.

[15] ...is the older brother of the complainant. He stated that they went to a 50th anniversary party for his mother's aunt in Barrie, Ontario. He stated that he came home in his parent's car and his sister (the complainant) came home in their aunt's car. He stated that the party ended around 9:30 or 10:30. He stated that when they all got home, they all (including the complainant) stayed up to watch a hockey game. He stated that the younger people went to bed earlier. He stated that the adults stayed until the game was finished or almost finished. He then went to play on the computer and he was alone downstairs and all went upstairs. His Gramps may have gone upstairs a little earlier (12:00-ish or 12:30 a.m.).

[16] He stated that his mother came down and told him to go to bed. He went upstairs and went into his room (his grandparents were sleeping there that night), and he saw his Gramps standing by the dresser. He was dressed in a shirt and grey dress pants. A light fixture on a side table was on and their dog, was sitting on the bed. His Gramps asked if he needed anything and he said he needed his pyjamas, which he got and then left. His Gramps bid him good night. The witness did not notice anything unusual about the defendant. He stated that all of the bedrooms had their doors open (which was not unusual) and that the hall lights were on dimly. He agreed with the suggestion that when the house was that full of people, there was not much privacy.

[17] The witness stated that he went downstairs watched TV for a while and then went to sleep on the couch. Sometime after falling asleep, his mother came down to ask if he had seen anything that night and he said no.

[18] In cross-examination, the witness agreed with the defence suggestion that the defendant was an older and slower man and also that he had a caring relationship with his grandfather, and treated him as his grandfather. These allegations by his sister were totally unexpected.

J.M.

[19] ...is the mother of the complainant. She confirmed that the defendant has been married to her mother for over 21 years. She also confirms that up until this incident, the defendant was treated like a grandfather by her children and he was attentive to the children and caring and they enjoyed seeing him. The defendant and her mother had stayed over at their home many times and he had spent time with her daughter. She also confirmed that her daughter did suffer from sleepwalking incidents. She stated that most of the time, the daughter would be found in the bathroom and sometimes would be saying unintelligible things (it does not seem that they sought any medical advice for these events).

[20] On this evening, she confirms that they had a very full Saturday with many children's varied sporting events and she stated that she was not home for more than 5 minutes. She did not recall any specific difficulties.

[21] She confirms the party for her aunt's anniversary in Barrie and the leaving at around 9:30 p.m. She stated that after arriving home they put the younger children to bed and that included her daughter and her two nieces who were sleeping in the daughter's room as previously described. The defendant and her mother arrived later at around 11:00 p.m. She stated that the adults began to watch the hockey game. She saw that the defendant was with them but he left for bed. She could not say when he went up to bed.

[22] She stated that they did not watch the whole game and they all began to go to bed. She stated she heard a small voice calling "mom, mom" and at first she thought it was one of her nieces, but the sister said it was her daughter and she went up to see her. She had a conversation with her daughter who seemed very upset, crying and agitated. After speaking with her daughter for several minutes, she stated that she was in disbelief. She went to her mother and told her what her daughter had said and her mother said "no". She then went to the bedroom where her mother and the defendant were sleeping and knocked on the door. She stated that when they came in, the defendant was dressed in pajama bottoms with no top. They confronted the defendant and he stated: "No, I didn't.". In her statement to the police, she had added: "No, no, I would never, you know I can't believe this is happening, we need to sort this out cause, no it can't be, it didn't happen". She stated that he suggested that they call the police and he also said that he would take a lie detector test. The witness suggested that his reaction was not what she had expected.

[23] In cross-examination, she admitted the defence counsel's suggestion that her daughter had lied to her at times and had probably lied at times to others and she stated (with some insight),"she is a child".

[24] The witness was cross-examined about the daughter's evidence that she had gone over her statement with her parents (the specific portion of the evidence was played back to the witness). She denied reviewing any details of the statement with her daughter and stated that she only asked her daughter if she was confident about what she had said to the police and to tell the truth and to say she could not remember if she did not remember anything.

Defence

[25] The defendant testified in his own defence. He denied all of the allegations made by the complainant and said he had never been in the complainant's room. He described the events of the day and added that some things happened which may have made the complainant unhappy with him, that they had given her a birthday present that she may have been disappointed in, they did not come to her sporting event on Saturday, and he has disciplined the child in a minor fashion earlier in the day.

[26] He described the events of the day in some detail and then spoke of the attendance at the party in Barrie. He stated that he and his wife got back to the house at around 11:45 p.m. and he sat watching the hockey game for some 15 minutes before going to bed. He stated that he was very tired as he usually went to bed around 9:00 p.m. as he gets up around 4:00 a.m. for work (he is 62 and is not retired). He also pointed out that he suffers from kidney disease, high blood pressure and arthritis in his right knee and right ankle.

[27] He stated that he went into his room to change and Sc.M. came to the door soon afterwards and he got his pajamas. He stated that his dog was with him in the room. He went to the bathroom. He then changed into his pyjamas and his wife was in the bathroom when he heard S.M. yell "mom, Mom". He then heard a "pounding at the door and he went to the door. He states that his wife confronted him with the allegations while J.M. was standing in the hall. He confirms that he denied it and stated that said, "this can't be happening" and said he was shocked about what was said. He told them that he would take a lie detector test and that he suggested that the police be called. He went downstairs as his wife began to pack for their leaving and he sat at the kitchen table and waited there for the police to arrive.

Analysis

Legal Framework

[28] The Crown bears the burden at all times to prove these offences beyond a reasonable doubt. As stated in the case of R. v. Lifchus:

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

• 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 judge or jury which concludes only that the accused is probably guilty must acquit.

[29] As part of the analysis of the burden of proof, the case of R. v. W.D. sets out the rubric to be followed by triers of fact where the defendant (as in this case) provides exculpatory evidence: First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit. Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, in the basis of the evidence which you do accept, are you convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[30] From a practical point of view, the net result of these fundamental legal principles of criminal law is that the trier of fact must not simply compare the stories of the complainant and defendant and decide which one he or she prefers. To do so would place the burden of proof upon the defendant. A court can and must however assess the defence evidence in light of all of the evidence that the court considers trustworthy, including any statements by the complainant to decide if he accepts it or is left in a reasonable doubt by it. In all other circumstances other than proof beyond a reasonable doubt, the defendant is entitled to an acquittal.

Defence Evidence

[31] The evidence of the defendant is totally exculpatory, he denies going into the S.M.'s room and certainly denies sexually assaulting her. He has given evidence where he accounts for his movements that evening. His interactions with the son later in the evening was totally consistent with a person simply going to bed after a long day. The son confirms his demeanour as being "normal". In his testimony on the stand, he responded promptly to all questions with an economy of language. He gave no long-winded explanations of anything. There was nothing about what he said that was at all inconsistent with all of the other evidence of all of the other witnesses, save the complainant, in her description of the event in the darkened bedroom. The Crown attempted to suggest that because he did not respond to the complainants cry for her mother that was somehow a consciousness of guilt. It is equally consistent with someone letting the mother attend to a call from her child. It is equivocal.

[32] I am reinforced in the veracity of the defendant's evidence in that if he had committed this disgraceful act upon his grandchild, there was almost no worse time that he could have picked. The house was filled with 5 other adults, one older child, and 4 young children. All the adults (if we use the time of the complainant) were awake and aware. The room in which he would have carried out the attack would have to have been negotiated with great care, taking into account the children sleeping in the middle of the floor and the other clutter in the room.

[33] The door was open and the hall light was on. While the bed of the complainant was not visible to someone on the stairs, two or three steps from the top of the stairs would bring the entire room into view.

[34] There is no evidence that the defendant was under the influence of alcohol or a drug. While it certainly is not a requirement of the commission of such an offence, there is no evidence of any propensity of the defendant to commit such acts or even cause discomfort to anyone else in his presence.

[35] A simple denial, while triggering the W.D. analysis is not some type of trump card played by the defence. The totality of the evidence must be considered in this case, including the evidence of the complainant and others which I will discuss below.

Crown Evidence

[36] The evidence of the complainant must be assessed against the other evidence and issues which may affect her general credibility and reliability. I find that the following factors impact negatively upon her:

(a) Her revelation in cross-examination that she believed that the defendant had also "touched her bum" is a major discrepancy in the narrative she told the police and the court;

(b) It would be unrealistic to imagine a situation where the witness would not have spoken to her parents, on more than one occasion about the events as she had described to the police. However, it was clear that she believed that her parents discussed and reviewed many times the details of her evidence, before her testimony in court. While I am prepared to accept the mother's testimony that the discussions did not go into detail, I am concerned that the complainant obviously thought that they did. I can only assume that the effect of the discussions, would have been to reinforce what she had already stated to the police. Whether, upon reflection, that story may not have continued, it would have been impossible with the obvious reinforcement from her parents.

(c) There were many details in the events of that evening which are contradicted by her brother Sc.M., including the place of the family party, the time of leaving and arriving home, the presence of all people in front of the television, the time of going to bed and indeed the possible time of the event that she describes. Each item can be explained, but the weight of discrepancies weighs against her credibility.

(d) The scene in the home, with a host of people present and indeed the scene in the bedroom with two children on a mattress in the middle of the darkened room, stretches the imagination as to why and how this attack by the defendant upon the complainant could have been carried out in the way that she describes.

Conclusion

[37] I reiterate, that what I cannot do is simply decide which story is the one I will accept. The burden of proof beyond a reasonable doubt prohibits that thinking. While this rubric can, and does, on occasion allow the guilty to go free, it avoids the greater societal ill of having the innocent found guilty.

[38] There is nothing about the defendant's evidence which is internally or externally inconsistent. I cannot simply dismiss it because no explanation has been forwarded to state why the complainant would tell such a story.

[39] While I do not dismiss the complainant's evidence, there are sufficient difficulties, (noted above) that would make it dangerous to convict without some further corroboration. In reaching my conclusion, I accept that she may have given an accurate recitation of the events, but the totality of the evidence, including the evidence of the defendant leaves with sufficient doubt, to constitute a reasonable doubt, and such a doubt must in law be resolved in favour of an acquittal.

[40] I find the defendant not guilty of the charges before the court.

Signed: "Justice P.N. Bourque"

Released: February 7, 2014