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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2015-04-24

Court File No.: Goderich (Wingham) 14 484

Between:

Her Majesty the Queen

— AND —

K.C.S.

Before: Justice Brophy

Heard on: 11 and 19 March 2015

Reasons for Judgment released on: 24 April 2015

Counsel:

• Laura Grant, counsel for the Crown
• Philip Cornish, counsel for the defendant K.C.S.

BROPHY J.:

INTRODUCTION

[1] K.C.S., born 24 August 1930, has been charged with the offence of sexual assault. It is alleged that on the 23rd day of July, 2014 he touched L.B. in a sexual manner without her consent contrary to section 271 of the Criminal Code.

[2] The crown proceeded summarily and the matter was heard on 11 March 2015 and argument took place on 19 March 2015. The matter was then adjourned to 24 April 2015 for judgment.

[3] The crown theory is that the accused groped the complainant in her family's garage when he had called in to visit with her parents, who were not there. He had asked her to hug him as he was getting ready to leave and when doing so the allegation is that he touched her breast and buttock. The accused was 84 years old at the time of the trial and the complainant was 20 years of age.

BASIC PRINCIPLES

[4] The first and most important principle of law applicable to every criminal case is the presumption of innocence. Mr. S. enters the proceedings presumed to be innocent, and the presumption of innocence remains throughout the case unless the Crown satisfies me beyond a reasonable doubt that K.C.S. is guilty.

[5] Two rules flow from the presumption of innocence.

[6] One is that the Crown bears the burden of proving guilt. The burden of proof rests with the Crown and never shifts. There is no burden on Mr. S. to prove that he is innocent. He does not have to prove anything.

[7] The other is that guilt must be proved beyond a reasonable doubt.

[8] A reasonable doubt is not an imaginary or frivolous doubt. It is based on reason and common sense. It is a doubt that arises logically from the evidence or from an absence of evidence.

[9] In short:

[10] The presumption of innocence applies at the beginning and continues throughout the trial, unless I am satisfied, after considering the whole of the evidence, that the Crown has displaced the presumption of innocence by proof of guilt beyond a reasonable doubt.

ISSUES

[11] The issue in this case is reliability and credibility and engages the principles set out in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397.

FACTS

L.B.

[12] The crown called the complainant L.B.. Her evidence is as follows.

[13] Ms. B. lives at her father's residence in Fordwich at O[…]Road. In September 2014 she started her first year of university at Western. Prior to starting university she had been a high school student and had worked part time at the Fordwich diner and at Tim Horton's in Listowel.

[14] Ms. B. says that she has known the accused since she was little girl. She would attend at the local landfill site with her mother when she was a young child and he would be working there. Later when she was older Mr. S. would on occasion drop by her parents' home for conversations with them. The only other times she encountered Mr. S. was when he attended at the Fordwich diner and at the Tim Horton's restaurant in Listowel when she was working.

[15] Ms. B. says that she was at her father's home in Fordwich on 23 July 2014, where she was preparing for a weekend excursion with two friends M.B. and S.M., when Mr. S. came to the house. The friends were upstairs in her room packing and she was either downstairs or in her room. Her cousin J.B. was in the kitchen eating his supper. J.B. worked for her father and he had come in late and was eating alone in the kitchen. Her father and his partner were not at home. Apparently they were at a recreational home not too far away.

[16] Her evidence is that she was upstairs in her room hanging out with her friends when she heard the doorbell ring. J.B. said in his evidence that she was already downstairs when the bell rang. This difference in the evidence is not important.

[17] When she heard the doorbell Ms. B. went to the door leading from the house into the garage. She opened the door and greeted Mr. S. and he wondered whether her parents were home. She told him that they were not there.

[18] She says that Mr. S. then began some small talk asking her what she was doing next year with respect to school and work. Her evidence is that after that brief conversation he asked her for a hug and she agreed. Ms. B's evidence is that she thought it strange that he asked her for a hug, but out of politeness and so as not to be rude she agreed. When she stepped forward the house door that she had been holding open closed behind her.

[19] She then says that she gave him an ordinary hug. But after the hug his arms came down and held her hips instead of letting go and he was very close to her. He then leaned towards her and she realized he intended to kiss her on her lips. She turned her head because she did not want to be kissed. When she turned her head he nibbled and kissed her ear.

[20] She tried to push him away gently using her arms on his chest but it had no effect. After that he leaned back and asked her if she had had "that experience". Initially she thought he was asking about work, but then he started asking if she had had "that experience" with her boyfriend. At that point she thought he was referring to a sexual experience and this frightened her. He said he would like to have that experience with her and that she was very beautiful. Her interpretation was that he wanted to have sex with her, or at least he was saying something to that effect. He then said that he would like to have had "that experience" with her and that she was very beautiful. He then brought his left hand up from her right hip and touched her right breast.

[21] As this was happening she at first said nothing because she was in shock and did not know what to say or do. Her ordinary reaction when she is surprised by something shocking is to go silent and try to get away. This was similar to her experience with respect to a motor vehicle accident she had been in.

[22] She did manage to say that they should not be doing this and she had to get ready for camping, and as she began to turn away he used his left hand to touch her buttocks.

[23] He then left and said goodbye as he went out the door. She waited to make sure he had left and then went in the house and locked the external door and slid down to the floor and started crying. Her cousin J.B. came in from the kitchen and asked her what was wrong. She told him that she had been touched inappropriately and he called her father. Her father and his partner came home and she told them what had happened. She thinks they called the police.

[24] None of this interaction with Mr. S. took very long and she's not sure why he stopped. She certainly never wanted him to touch her in that fashion.

[25] Apart from the hug in the first instance and the push, she had no physical contact with him that she initiated.

[26] It should be noted that the complainant says that the accused had his cane with him but during the physical contact that cane was leaning up against the freezer, although it did fall over at some point.

[27] Ms. B. also testified that when she worked at the Fordwich diner Mr. S. would come into the restaurant and he would initiate hugs. He would sometimes stay late until everyone else had left and he would talk to her about school and everyday things. She paid him no extra special attention, but sometimes he would hug her when he was paying for his coffee and on occasion he would whisper something in her ear and kiss her cheek unexpectedly. She felt this was very strange and it made her uncomfortable, but she never said anything because she wanted to keep her job. She never initiated any physical contact with him and she certainly never did anything to suggest that she wanted physical contact. At the diner she also found it a little strange that he would over tip her. On occasion he handed her a five dollar bill and would have had just a cup of coffee.

[28] She moved from that job to Tim Horton's when she was in grade 12. At the Tim Horton's restaurant she saw the accused on occasion but it was busier and there is no time for any talk. Moreover she could make excuses not to talk to him because she was so busy. In July of 2014 she was still working at Tim Horton's and she had last seen the accused at Tim's approximately three months before the incident and then just for five minutes.

[29] In cross-examination Ms. B. was asked how she prepared for the trial. She said that she had met with the victim services person and was told what to expect in the court system, that if she needed a break she was allowed to ask for one or if she needed to review her statement she was allowed to do that as well. The only thing that was emphasized was that she was to tell the truth. She did indicate that she had read over her statement a number of times to make sure that she was prepared and so that she could remember what had happened. She thinks she has a good memory, but the incident was many months ago.

[30] In cross-examination she said that she had lived all of her life in the Fordwich area and when she attended at the "dump" with her mother it would be because her father was in the barn and she needed to be supervised so she would tag along with her mother. She would have been four or younger at the time. This attendance at the landfill site went on for number of years. She doesn't know why the accused would be there other than she thought possibly he worked at the site. She can't remember exactly when she stopped going, but possibly when she was 9 or 10 years of age. After that the accused would occasionally visit her father at the house. Other than that, her contact with the accused was at the diner.

[31] As far as she knew the accused's relationship with her father was that of an acquaintance. There was never any social interaction with him that she can remember. There was nothing inappropriate that occurred at the landfill site and she really didn't see him again until she was a waitress at the Fordwich diner when she was 15 or 16 years old.

[32] She was challenged in cross about the relationship she had with Mr. S.. It was put to her that he was a grandfather figure to her with the implication being that they had a special relationship. She denied any personal connection. She had been taught to respect her elders and it seemed obvious that she should be polite to customers.

[33] She was asked about the tipping and said that she thought it odd that he would give her a five dollar tip for a cup of coffee. This happened several times. There was no obvious reason for him to leave a tip of that size.

[34] When she attended at the landfill site she really didn't know him. When he came to her house she had no reason not to like him.

[35] In cross-examination she described how the kiss on the cheek took place at the diner. The accused would ask to whisper something in her ear and she would lean forward and he would quickly kiss her on the cheek. When he kissed her on the cheek at the diner she can't remember telling him she objected. She accepted it because she was trying to be polite and not get him angry. He did not hug or kiss her every time he was at the restaurant, but it was more than once. This would happen when he was paying his bill. No one would witness it because she would be by herself, with the other customers having left and the owner of the restaurant in the kitchen.

[36] Just because she knew him did not mean there was any special relationship. She was not overly fond of him. She felt the hugging and kissing was inappropriate, but did not tell him so.

[37] Initially when he started hugging her once in a while she thought this was odd but then when he began kissing her on the cheek she started thinking it was creepy. She didn't say anything to him because of her respect for older persons and she did not want anger him. At the time she did not think his intentions were wrong. She did however tell some of her family members that he was making her feel uncomfortable. One of the family member suggested she get another job and that's when she looked for the job at Tim Horton's. One of the reasons she left her job at the Fordwich diner was because of the behaviours of the accused. She concedes that she did not say that in her statement, but she was not asked about it. Ms. B. said that in some way she thought the hugs and kisses were strange and creepy. He certainly was not her grandfather – but he seemed to want to take on that role.

[38] She was asked if she shared personal information with him. Her answer was that she talked about what she thought were ordinary things, that is to say work and school and sometimes friends. She kept it formal. She made it a practice never to get personal with her customers. She has no memory of talking to the accused about a motor vehicle accident that she had been in when she was in grade 12. Nor can she remember talking about her sister's goat farm. It is common knowledge in the community that she did have the motor vehicle accident when she was 17 or 18 and that her sister operates a goat farm.

[39] She indicated that Mr. S. would ask her if she was playing hockey and she offered to get him a schedule of games, but that is as far as that conversation went. She cannot remember if she ever invited him to come to games, but he may have attended.

[40] When she was looking for the new job she told her employer at the diner that she needed more hours to save for University, and in fact that was one of the reasons, but the behaviours of the accused was also a reason.

[41] In cross she was asked about the events in the garage and she added to her description by saying that after the hug his arms slid down to her hips and he held her there so that she could not step back, which is what should have happened. She did say "this is not a good idea and we should stop". At that point he leaned towards her and she realized what his intent was. She thought this because of his previous kisses and because he was so close to her. She turned away at the last second. He had never kissed her on the lips before and she did not want it to happen this time. He contacted her ear and it was not a quick kiss. She pushed him back and he then leaned back and asked her about her "experience". When she pushed him it did not have an immediate effect, but he did stop kissing her ear. He did not use any sexual words when he asked her about her experience with her boyfriend, but this, combined with his attempt to kiss her, made her think that the reference was to sex.

[42] In her evidence in cross she said the touching of her breast was not accidental. When they hugged he dropped his hands to her hips and then he moved his left hand up from her right hip and briefly cupped her breast. After that he lowered his hand and the next thing he did was touch her buttocks, not her hip, as she half turned away from him saying she had to go pack for camping.

[43] The witness was challenged with respect to what she meant when she had said that that this was not a good idea and we need to stop. Her response was that she did not mean there was any mutuality in what was happening. It is noteworthy that Ms. B. paused for a considerable period of time thinking about the question. She indicated that she did not want to make it something untruthful and that is why she took some time to think about the words that were used.

[44] She was asked why she was pleasant when saying goodbye and she responded by saying that she was not a person who is rude and she wanted to make sure he had left. She had watched him go outside the garage door and when she stepped into the house she locked the door between the house and garage.

[45] The complainant says that she described Mr. S. as grandfatherly because of his age and not because of any relationship he had with her.

[46] In redirect Ms. B. confirmed that what she talked to Mr. S. about at the diner was general information and was not personal information, which she would define as past events of an emotional nature or personal relationships with family members.

[47] She also said that she did not tell the investigating officer about why she had left the diner because she was not asked about it.

[48] She also said that the accused never sent her a birthday card or a Christmas gift.

[49] Finally the witness said that she is not confrontational.

J.B.

[50] The crown also called J.B. He's 21 years of age and lives at his uncle's place, being the same home as that of L.B.. He is a cousin of the complainant.

[51] His evidence is that someone came to the door and the complainant went to answer it. Young Mr. J.B. was at the kitchen table having supper. He could hear voices in the garage area and Ms. B. did not come back in right away. About five minutes later after the door closed he heard her crying and he went to check on her. He saw her sitting on the floor in front of the door crying. She was outright "wailing".

[52] His evidence is that before she went to answer the door her emotional state was excited because she was preparing to go on a camping trip that weekend.

[53] In cross-examination J.B. said that before the doorbell rang L.B. was downstairs cutting up a watermelon and she heard the bell and went to the front door but no one was there so she went to the back door.

[54] This is a minor conflict with the evidence of L.B. who said she was upstairs when she heard the bell rang.

[55] J.B. says that the accused was not a grandfatherly figure.

[56] In cross-examination Mr. J.B. was shown his statement where he said that L.B. was "fairly crying". In redirect he said that "fairly crying" means "balling her eyes out, tears running down her face and wiping her eyes".

K.C.S.

[57] The accused testified. K.C.S., normally called K., is 84 years old. He's been married to his wife J. for 63 years and has two sons in their 50s who are both independent. He is retired. He previously worked for Imperial oil and Ontario Hydro and then bought his own business through Petro Canada and operated it for 21 years. The business was in Fordwich. After that he was the manager of the landfill site for Howick Township for 10 years. That ended approximately 5 to 8 years ago. He lives in Fordwich with his spouse. They have lived in the same house since 1967. He is involved in the community through the Masonic Lodge in both Fordwich and Listowel. He also helps the Shriners. There is also some work he does involving sports at the ballpark in Fordwich.

[58] At one time he had a problem with alcohol. Approximately 16 years ago he began attending A.A. meetings and it was helpful to him. As a result he has attended A.A. meetings ever since and tries to help people with the same problem. He has been mentoring alcoholics for approximately 15 years.

[59] In his evidence he particularly mentioned that he had been given a card designed by the members of an A.A. group called a "hug coupon". He carries the card in his wallet. He gives copies of the card to people he talks to as part of his A.A. counselling. His practice is that after he visits someone with a problem he might give them a hug and one of the cards. He sees hugging as a part of life and that the cards are tokens for that purpose.

[60] When he was testifying he became very distracted and unfocused when talking about the card and it was difficult to understand the significance of the card and its place in his life. It would appear however that the card is a reminder of A.A. and that in some sense it is meant to convey that hugging is an important component of showing support to someone who has an alcohol problem. He says the card goes with him wherever he goes. A copy of the card was filed as an exhibit.

[61] He knows the complainant and her father and mother. He is been acquainted with them for 15 to 20 years. He says they are great people. Mr. S. testifies that E.B. and his wife and he have been good friends and he will oftentimes drop in and have a "chinwag". He praised their new home as beautiful. There is another daughter that he doesn't know as well. He knows that she is a goat farm. He always thought his relationship with the family was good.

[62] With respect to L.B. he remembers her coming with her mother to the landfill site when he was the manager. After he left that job eight or nine years ago he did not see much of the complainant until she started working at the Fordwich diner. He says that she was a "super waitress" and he could not wish for anyone better and that she did a "fantastic job". At the diner they would kid back and forth about whether she had a boyfriend or didn't have a boyfriend and he thought it was a lot of fun. He said to her in a teasing manner – "well L., gotta tell you there are a lot of boys, don't be in a big hurry, make sure you pick the right one."

[63] In his evidence Mr. S. first says that at the diner nothing physical occurred. But then he says that one night when he was paying his bill she walked around and she put her arm around him and said thank you very much. He then goes on to say that she hugged him at the diner but he never kissed her. He says there was no other hug between him and L.B. except when at the house at the time of the incident.

[64] His evidence is that he went to the diner regularly, but nothing notable happened there. He says that he treated all the wait staff the same and if he paid five dollars it was for both the beverage and the tip. He did indeed talk to L.B. at the diner about various things including going away to university and her motor vehicle accident.

[65] His evidence is that L.B. was a "super girl". In his words however there was "one little problem" and he spoke to her father about it. It was his opinion that she was very shy. He said that her father said she needed to get some reassurance and Mr. S. agreed. The witness likes to believe that he had some role to play in giving her confidence. As an example he mentioned that she would say something and he would say don't worry about it. If she said should I do this or that he would give the best advice he could.

[66] On 23 July 2014 he was driving down O[…] Road and was near the B.'s and he said to himself he hadn't seen E.B. for a long time and he saw three cars in the driveway so he thought he would go in for a visit. He parked his car in front of the garage door and walked into the garage and went to the house door. He rang the doorbell and L.B. answered the door. He asked if her mom or dad were at home and she said they were not, that they were at the trailer at Pike Lake.

[67] His evidence is that they then talked about university and the Listowel high school and a number of other things that he cannot now remember. He says that he was leaning up against the deep-freeze near the step and had been there maybe 15 to 20 minutes when he said he had to go. He moved away from the deep-freeze and towards the steps into the house. He says she was standing with her hand on the door and the door was half open. He could hear voices inside and it sounded like male voices.

[68] He says she then closed the door and came down and put her arms around his neck and he put his arms around her waist and he gave her a hug and a peck on the cheek and that was the end of it. She then turned around and walked into the house and he turned around and gave a big wave and said see you. She closed the door.

[69] When the hug took place he held her around her stomach area and up around her shoulders. He doesn't know how long the hug lasted it may have been a minute but certainly no more. He did give her a peck on the cheek. She turned her cheek sideways and he "got her" on the left cheek.

[70] She never said this contact was unwanted. He is confused about what she said or didn't say because in his evidence he said that she did not say anything at that point but at some point she did say that she was getting ready to go to the lake for the weekend.

[71] In an interesting exchange he said that he was not sure if he had his cane with him or had left it in the truck. But then he hastens to add that "if L. says I had the cane, I did."

[72] After expressing this confidence in her memory however his evidence then changes in that he says what she said about him assaulting her is not true. He says that he is not that type of person and he has no idea why she would make that allegation. He says that he never nibbled her ear. He then digressed into some description of what a goat does and lost contact with the question being asked. However he came back and said that he knows his face did not contact her ear.

[73] His evidence is that she did not try to push him away. But he then says that she said "please don't kiss me on the lips" so I didn't. He then says that he heard she had been involved with a boyfriend so I could understand her saying that. When they were hugging he does not know if her body and breasts touched his body. But he does know that he never touched her breast or buttocks with his hand. He says he has "more marbles upstairs" than that. He says that he never talked to Ms. B. about sex – ever - "that was her bag of tricks not mine". However he then offers that L.B. said to him when giving him the hug that "I had my experience". He then says that she has been "beautiful since she was born". And then he goes on to say that maybe he did make a statement about her experience – but he's not sure. His memory fails him in that regard. He reiterates that she is a very attractive girl and possibly he said something and you "can't beat the truth".

[74] Oddly he then says that she never signalled she did not want to be touched by him in any manner and he never initiated any sexual contact with her that was unwanted.

[75] When he said he had to go he turned around and walked to the door and he looked back and she smiled at him and said see you another day. His plan was to go a half-mile through a side road to the Dave Hardy bush to see if it was ready to cut.

[76] In his evidence there is nothing unusual about the behaviours of L.B., and she seemed quite happy.

[77] In cross-examination Mr. S. confirmed that he had a conviction for an over 80 offence in 2003 and that he started attending A.A. around that time.

[78] He advised in cross that at the diner it wasn't just him who talked to Ms. B. In conversation she always had a "jolly" answer, but she didn't volunteer information. She was shy and reserved and always polite and respectful. Everyone liked her. She was not confrontational. She would not raise an issue for fear of hurting someone's feelings. Her actions were very professional and she was respectful to elders as she described.

[79] His evidence is that he never asked for hugs in the diner. He says that hugs are important - but they should not happen in a public place. But then he contradicts himself immediately by saying that sometimes when he would hug L. he would also kiss her on the cheek and that this might have happened three times in three years.

[80] In cross-examination he said that he thought about her lots of times.

[81] He also said that it is possible on 23 July 2014 that he asked her for the hug and that she agreed. He then gave a series of contradictory and confusing responses to the question of who initiated the hug and what happened. He says it was an ordinary hug and he did give her a peck on the cheek. He confirmed that she told him not to kiss her on the lips - but he had no answer when asked as to why she said that. He then said he was not sure who asked for the hug but she did come down the steps and put her arms out and he in turn put his arms under her arms and gave her a hug. He then says that he asked for the hug because he knew that he should not touch her without permission.

[82] When asked in cross about the use of the word experience he said that L.B. said she had had her experience. He says that she whispered it to him in his left ear when he was hugging her. As previously mentioned he said that he had heard through the grapevine that she had a boyfriend and thought she meant this was a sexual experience, this although Mr. S. professed not to be a gossip.

LAW

[83] It is important to keep in mind that the evidence must be considered as a whole.

[84] Further, as commented upon in R. v. Gostick, 137 C.C.C. (3d) 53 (CA) [1999], the credibility of interested witnesses cannot be gauged solely by the personal demeanour of the witness. The real test of the truth of the story of a witness must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

[85] I caution myself with respect to the evidence of the witnesses in terms of their age and circumstances in life. This is commonly thought of in terms of how to assess the evidence of children. See R. v. R.W., 74 C.C.C. (3rd) 134 (S.C.C.) but it also applies to the evidence of older witnesses. The principle is that the evidence of witnesses should be looked at with reference to their age and circumstances. The court is mindful of the age of the accused in this case and takes that into consideration.

[86] It is also useful to remember that the Ontario Court of Appeal in R. v. Krack (1990), 56 C.C.C. (3d) 555 at p.561 has emphasized that it is an error to decide a credibility contest on the basis of determining which version is true. The burden is always on the Crown to prove its case beyond a reasonable doubt on the totality of the evidence. See also R. v. Maharajah (2004), 186 C.C.C. (3d) 247 at para 30.

[87] I direct myself in accordance with the dicta set out by Mr. Justice Cory in the Supreme Court of Canada decision in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 at p. 409 as follows:

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 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, 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.

[88] Further it is important to note that reasonable doubt may arise from the balance of the evidence, even if it is not positively believed.

[89] In considering the evidence in this case it is noted that it is open to the court to accept the evidence of the complainant and reject the evidence of the accused and to ground a conviction on same after a careful assessment of the evidence as a whole. See R.v. J.J.R.D., (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal to S.C.C. refused, [2007] S.C.C.A.

[90] In R. v. Jaura, 2006 ONCJ 385, Duncan J. said:

20 In summary, it is my view that the case law establishes that, in a "she said/he said" case, the Rule is that a trial judge can reject the evidence of an accused and convict solely on the basis of his acceptance of the evidence of the complainant, provided that he also gives the evidence of the defendant a fair assessment and allows for the possibility of being left in doubt, notwithstanding his acceptance of the complainant's evidence.

[91] The Ontario Court of Appeal more recently followed that same line of analysis in R. v. P.R., 2014 ONCA 131:

4 We do not accept the submission that the trial judge engaged in the type of forbidden reasoning discussed in R. v. Maharajah (2004), 186 C.C.C. (3d) 247 at para. 30: I accept the evidence of the complainant; the complainant's evidence differs from the evidence of the accused on material matters; therefore, I do not believe the evidence of the accused and I find that the Crown's case is proved beyond a reasonable doubt. As pointed out in R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 at para. 53: "[A]n outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of conflicting credible evidence" provides a proper basis for rejecting the accused's evidence provided that the trial judge goes on to consider whether, notwithstanding her rejection of the accused's evidence, it raises a reasonable doubt. No reversal of the onus of proof takes place in such circumstances. In the present case, the trial judge did not simply proceed directly from finding that the complainant was credible to concluding that the allegations were proved beyond a reasonable doubt. Earlier in her reasons, the trial judge recited the R. v. W.(D.), [1991] 1 S.C.R. 742, formula and, reading her reasons as a whole, we are satisfied that she proceeded through the three stages of analysis and found that on all the evidence the Crown had proved its case beyond a reasonable doubt.

[92] This was reiterated in R. v. J.W., 2014 ONCA 322:

[26] In R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 69, Doherty J.A. emphasized that in a "he said – she said" case, the trial judge must understand how the principle of reasonable doubt is to be applied to the credibility assessment. There is a distinction between a finding of credibility and proof beyond a reasonable doubt. In other words, a reasonable doubt can survive a finding that the complainant is credible: J.J.R.D., at para. 47.

[30] In J.J.R.D., Doherty J.A. also emphasized that, although the trial judge can reject the accused's evidence based on compelling conflicting evidence, the acceptance of that evidence must be such that the trial judge is not left with a reasonable doubt. At para. 53, Doherty J.A. emphasized this point:

The trial judge rejected totally the appellant's denial because stacked beside [the complainant's] evidence and the evidence concerning the diary, the appellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence. [Emphasis added.]

[93] The defence in its cross examination briefly raised a possible defence of honest but mistaken belief in consent. However this was not argued and is not tenable on any reading of the facts. See R. v. Wylie, 2012 ONSC 1077

ANALYSIS

[94] L.B. was 20 years old when she testified and was in her first year in university. In high school she had been a hardworking and active young person who had participated in hockey extensively. It was apparent that she was somewhat shy – this on my assessment of her demeanour in the court room, but also in what she said and also as described in the words of the accused. There was nothing boastful or forward in her character. She was an intelligent, articulate and cautious witness. She was careful in her evidence and did not exaggerate. She took time to consider her answers and was internally consistent.

[95] The only minor external inconsistency in her evidence was that she said she was upstairs when she heard the doorbell ring and her cousin said she was in the kitchen. In my view this was a minor discrepancy at best and not of any weight. It may well be that the cousin was wrong. In any event it is not of any consequence.

[96] It is also important to note that she was approached in her home and had no warning that the accused would attend. She had not seen the accused for a number of months and had no continuing relationship with him.

[97] There was an effort on the part of the defence to suggest that she looked upon the accused as a grandfather figure. Simply put there is nothing in the evidence that supports that argument. Ms. B. testified that she tries to respect her elders and was polite to Mr. S. as a customer. But that was all there was. Nothing more.

[98] She did say that because of his over familiarity at the Fordwich diner he made her uncomfortable and in part that is why she looked for a job with more hours. However that does not present as any form of ongoing connection between her and the accused – indeed it is exactly the opposite.

[99] Ms. B. had no motive to lie or make up a story. Nor did she have an opportunity to do so. Her emotional state before the encounter in the garage was buoyant and excited. She was spending the evening with friends preparing for a weekend camping trip. She then goes to answer the door and within a few minutes she is back in the house and is in tears and is distraught and discloses immediately what happened.

[100] Ms. B. was an excellent witness and I find her evidence credible.

[101] However as Justice Doherty cautioned "a reasonable doubt can survive a finding that the complainant is credible": J.J.R.D., at para. 47.

[102] This means that a careful review of the evidence of the accused must be undertaken especially in light of the W.(D.) principles.

[103] Mr. S. was an able communicator. He spoke clearly and was generally responsive to the questions that were asked. On occasion he would go off point and would have to be redirected. However many witnesses do that and ordinarily it is not a deficit.

[104] Mr. S. was not however a good witness.

[105] His manner of speaking was colloquial and I take that into consideration in trying to understand his evidence. But it remains that he was contradictory and boastful. He was full of praise for the complainant and spoke about her abilities as if in some way he could take credit for them. He said that if she said something then it was true. And yet he denied the essential complaint.

[106] The accused was overly familiar with the complainant and adopted a quasi-grandfather role although there was nothing to suggest that he in fact had that status. He identified that the complainant's one weakness was shyness and that he helped her overcome that shyness at the urging go her father.

[107] He said he did not gossip and yet then asserted that he suspected that Ms. B. was referring to sex when he says she said something about her experience because he had heard through the grapevine she had a boyfriend.

[108] His inconsistencies runs right back to the events in the diner. For example he said first there were no kisses and then he said there were.

[109] With respect to the particular incident in question he changed his story in significant ways as he testified. At first he suggested that Ms. B. asked for the hug. Then he said maybe he did. He says that she did not try to push him away and then he says that she said do not kiss me on the lips.

[110] Most significantly he says that he did not initiate any sexual contact that was unwanted.

CONCLUSION

[111] Even after allowing for Mr. S's age, the evidence establishes clearly that Mr. S. did not understand boundaries with respect to this young female person and that he breached those boundaries in many instances. All of this and the other non-sensical, illogical and inconsistent answers on the part of Mr. S. cause me, taken in conjunction with all of the evidence, to reject his testimony.

[112] The next question then becomes whether his evidence raises a reasonable doubt. Again this needs to be assessed in the context of the whole of the evidence. I am of the view that given Mr. S's contradictory evidence, his lack of understanding of boundaries, and the quality of the evidence from the complainant, simply put, I do not find anything in his evidence that raises a reasonable doubt.

[113] Finally I have to ask, whether on the basis of the evidence that I do accept, has the crown proven the case beyond a reasonable doubt. The evidence of Ms. B. is powerful and compelling. I accept her evidence. There is nothing in the evidence of the accused that raises a reasonable doubt.

[114] For all of these reasons I am of the view that the crown has proven the charge beyond a reasonable doubt and the presumption of innocence is displaced and Mr. S. is found guilty of sexual assault.

Released: 24 April 2015

Signed: "Justice Brophy"