WARNING
An order restricting publication in this proceeding under ss. 486.4(1) of the Criminal Code has been made. The penalties of violating this order are set out in 486.6. These sections of the Criminal Code provide:
486.4 (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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).
486.6 (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.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
Court Information
Between: Her Majesty the Queen
And: Samuel Santos-Medeiros
Counsel:
- M. Brown, for the Crown
- R. Richardson and N. Yanful, for the Defendant
Heard: February 9-10, March 24 and May 11, 2015
Reasons for Judgement
Justice Melvyn Green
A. INTRODUCTION
[1] In mid-2013 Samuel Santos-Medeiros lived with his spouse and their three-year-old son, Aiden, on the second and third floors of a house in Toronto's "Little Portugal" area. AF, who was then fifteen, lived next door with her parents and older sister. AF alleges that Santos-Medeiros, the defendant, sexually accosted her on several occasions during the summer while she played with Aiden in his family's second floor living room. The first occasion includes accusations of sexual touching that give rise to two offences alleged to have occurred during the same incident sometime between June 1 and June 30, 2013. One charge is that of sexual assault and the second is sexual interference (touching a person under the age of sixteen for a sexual purpose).
[2] AF, the complainant, was the only witness called by the Crown. The defendant testified and denied all of AF's allegations of misconduct. His wife, Connie, also testified, as did his niece, Jessica, who was 13½-years-old at the time. AF's parents were neither interviewed by the police nor called as witnesses, nor was anyone from the school where AF says she first verbalized her complaint.
[3] The case largely turns on issues of credibility, as filtered through the presumption of innocence and the settled legal authority that protects this presumption. As always, the ultimate burden of proof rests with the Crown to establish each element of each offence beyond reasonable doubt. As that task presents in the factual matrix of this case, I must acquit the defendant of both counts unless I am satisfied to the requisite standard that he touched the complainant during the incident in question.
B. EVIDENCE
(a) Introduction
[4] A shared wall divides the defendant's and complainant's homes. Wire fencing halves their backyard. A common roof covers their front porches, partially separated by a vertical divide.
[5] AF had lived at her family home her entire life. The defendant and Connie moved into the apartment they rented in the attached house next door (the one to the right, if you are standing in front of the properties) in February 2011, about a month after Aiden's first birthday and two years before the incidents giving rise to AF's allegations. They occupied the top two floors while the owner resided on the ground and basement floors. The defendant's and AF's families were neighbourly, and AF considered Connie her friend. AF's sister is about 16 to 18 months her senior. They attend the same school but, according to AF, they "tend not to talk to each other".
[6] The inhabitants of both homes are of Portuguese heritage. The defendant's first language is Portuguese. He speaks only broken English. AF, the complainant, speaks "just a little bit" of Portuguese. The defendant ("Sam" to all who know him) spoke English to AF but, as she explained, "it's really hard to understand so I don't really know what he's saying" unless he repeated himself several times. Sam's wife Connie is fluent in both Portuguese and English, while his niece Jessica, who resides in Portugal, knows only a few words of English.
[7] I begin with a synopsis of AF's account. Summaries of the evidence of the three defence witnesses follow.
(b) The Crown Case: AF's Testimony
(i) Introduction
[8] AF first spoke to the police on October 17, 2013, soon after her 16th birthday. She provided an hour-long video statement, the truth of which she adopted during her direct examination.
[9] AF identified three occasions when she alleges Sam acted inappropriately. The first, she says, was during the second or third week of June 2013. The second occurred about two weeks later. And the third was on the Friday evening of the 2013 Thanksgiving weekend. Each time, she says, the defendant sexually propositioned her in his home while AF was playing with his three-year-old son Aiden. On the first occasion only, Sam is alleged to have groped AF's breast and thigh and kissed her. AF was 15 at the time of the first two incidents. Sam likely knew she was in high school and she believed she had told him her age "a long time ago" and was "pretty sure" she had also told Connie. AF had been required to see a youth worker on a weekly basis since she was in grade 9. There had been a couple of "behaviour" incidents, but "not", as she puts it, "trouble trouble".
(ii) Mid-June 2013: The Bellwoods Park Incident
[10] AF left her house after an argument with her mom. She had been having a fight with her older sister and their mother took her sister's side, as she usually did. Her mother then went upstairs and stripped music from AF's phone. But what really irritated AF was that her mother had, in her words, "stepped into the argument" and sided with her sister without knowing anything about it.
[11] AF headed to nearby Bellwoods Park – a large public park – where she intended to sleep under a tree. She ran into Sam, Connie and Aiden on the way to the park, told them what happened and asked if she could remain with them while she calmed down. AF's parents had been calling since she left home but she kept hanging up on them (as per the video) or ignoring their calls (her trial testimony). Connie suggested that AF hand her the phone the next time they called. She did, and Connie explained that, "everything's OK; she's with us".
[12] They all went to a local sports bar or café for about an hour where Connie and Sam met some friends. Connie had "one or two shots" but "she wasn't drunk". Sam was "really drunk" and got into a physical fight with someone at the bar, during which a bottle was broken. They then walked home, with Sam carrying his son. Aiden was crying and upset, but AF did not think he was tired. AF's mom was waiting for her on the porch when they got home. It was around 11 or 12 at night.
[13] AF described Sam as "pretty much always drunk". He was "very drunk", she says, the night they got back home from Bellwoods Park; less so, she says, on the evening of the two other incidents about which she testified.
[14] Aiden was old enough to talk in mid-2013. He wanted AF to play with him after they got home from the café and AF's mom approved. She, Connie and Sam remained on the front porch while AF went upstairs to the living room with Aiden. A few minutes later she saw Sam standing at the doorway while she played with Aiden. Sam sat beside AF on the couch, stroking her thigh and playing with her right "boob". Sam then kissed her, his tongue in her mouth for about three seconds before AF pushed him away and told him it was wrong. Over the next five minutes he repeatedly asked to have sex with her and she repeatedly said no. She then "just went home", after assuring Sam that she would not tell anyone. Aiden was sitting on a second couch, about two feet away, throughout their exchange.
[15] AF denied that Sam carried Aiden home that night and put him directly to bed. She also denied that she returned immediately to her own home after her return from Bellwoods Park with Sam and Connie.
[16] AF testified that neither her mother nor father would have worried about her running off that evening. She affirmed this view in re-examination. She had never slept in a park but, by way of explanation, said that she and her mother "argue a lot". In direct examination, AF said that she and her parents only argued "once in a while".
(iii) Around Early July 2013: The Stereo Incident
[17] Sam and Connie had relatives from Portugal staying with them when the next incident occurred, about two weeks after the first. It was not Canada Day, but it may have been that weekend. It was probably a Friday or Saturday night and there was a party at Connie and Sam's when AF returned from music class. AF's parents hosted a party that same weekend, but it was on a different night.
[18] AF was talking to Connie on the front porch when Aiden asked her to come inside and play with him. They went up to the living room on the second floor. About five minutes later, Sam came up to change the music on the stereo system in that room. AF was sitting on the couch and Sam sat down in front of her. In response to his questions, she assured him that she had told no one about the earlier incident and that she was neither mad at nor afraid of him. Sam "started coming in to kiss" her and she "kept telling him not to". One of Sam's visiting Portuguese relatives – a girl of about twelve – walked in at this point, some two to three minutes after Sam first entered the room. Sam immediately attended to changing the music and AF returned to her house. Other than Sam's "advances", "nothing happened" that day. She returned later that evening to play with Aiden, but "after that [she] really stayed away from [Sam and Connie's] house".
[19] AF denied that the music stopped while she was in the living room with Aiden and that Sam had then come into the room, accompanied by his niece, the 12-year-old Portuguese girl.
(iv) Thanksgiving 2013
[20] Sam, Connie and AF's mom were talking on the front porch a little before 11pm on the Thanksgiving weekend. AF is "sure" it was the Friday evening. She first testified that Sam's Portuguese relatives were also on the porch but was later uncertain as to whether they were present on this occasion or the second. In any event, Aiden again invited AF to play with him, and she again followed him into the house and up to the living room. She was being careful, she says, as the second incident had made things "serious"; she didn't "really know", she says, "why she went over there at all" that night. Again: Sam appeared, put his arm around the back of the couch where AF was seated and tried to kiss her. She told him not to. Sam called her "beautiful", told her he "loved her boobs so much", and described his domestic relationship with Connie as "complicated". Just then, AF's mom called her name from downstairs to let her know it was time to return home. She got up and left. About five to ten minutes had passed. Sam did not touch her that evening.
[21] AF agreed she could have played with Aiden on the ground floor on the Thanksgiving Friday or said 'no' to him when he tried to lead her upstairs, but she did neither. She denied that Connie told her to play on the ground floor, that she had gone up to the second floor despite these instructions, that Sam called her to come downstairs, and that he was never in the living room with her that night.
(v) In addition
[22] AF had played with Aiden at Sam and Connie's house on a number of other occasions, on the ground as well as upper floors. She could not recall Connie ever being angry with her for leaving a mess after one of her visits. She denied ever speaking to Aiden about getting "his thing up". She agreed that Connie asked her to request permission before playing with Aiden, but she could not recall ever being told not to go upstairs to play with him.
[23] "Keeping a secret" was proving too stressful for AF. On October 17, 2013, she "told" her school youth worker and guidance counselor who, in turn, informed the VP. The complaint was reported to the police who arranged for AF to provide a video statement that day. AF told the police she had shared her complaint with one friend. At trial, she could not recall whether she had told this friend about the incidents before or after she spoke with the police.
(c) The Defence Case
(i) Introduction
[24] Sam was about 26 at the time of the alleged incidents. He had come to Canada from the Azores as a visitor in 2009. He was still officially a "visitor" although he had been trying to regularize his status. He had known Connie for more than five years. They lived together in a common law relationship. He had moved in with Connie around 2011 when Aiden was just over a year old. Aiden was about three-and-a-half in the summer of 2013. Sam is not Aiden's biological father but, in his words, "he is my son". He is Aiden's primary caregiver during the day. Connie, who was about 35 in 2013, was the family breadwinner. She works as a legal assistant, as she has for about 20 years. She describes Sam as "the father that Aiden does not have". She and Sam share, she says, a "normal couple relationship". Other than Sam's arrest, they did not suffer any particular domestic problems in 2013. Sam described their relationship as "good".
[25] Sam denied getting drunk a lot. Connie testified he would generally drink a couple of beers on weekends, the only time they bought alcohol. She had never seen Sam drunk. He occasionally consumed as many as three or four beers over an evening, but remained basically unaffected.
[26] Connie rented the second floor of their house and the single room on the third floor that served as Aiden's bedroom. As earlier noted, the owner of the house lived on the ground and basement floors, along with his wife. The two of them decamped to Portugal each year, from about March or April to November. Connie and Sam had use of the landlord's ground floor unit in their absence.
[27] Connie maintained cordial and friendly relations with AF's family next door. Sometimes AF would invite herself over to play with Aiden, about once a week in the summers when she would just hop the backyard fence. Sometimes they would play upstairs in Connie and Sam's unit, with Connie routinely checking on them. AF would only come over when Connie was home; "that's just the way it was", she says. In any event, she explains, Sam doesn't speak English and AF doesn't speak Portuguese.
[28] As earlier noted, Sam, the defendant, denies all AF's allegations of impropriety. As to the first incident, he says he put Aiden directly to bed after returning from Bellwoods Park and the café; AF never entered his home that evening. Connie's account is consistent with that of her husband. On the second occasion, Sam did enter the living room while AF was playing with Aiden, but only to investigate why the music had abruptly stopped and while in the company of his Portuguese niece, Jessica. Jessica confirms her attendance with Sam and the purpose of their visit, and Connie's testimony offers further exculpatory support. Sam denies ever joining AF in his house on the Thanksgiving weekend and, again, Connie's evidence parallels most of his testimonial recall. While the accounts of the defence witnesses are, as noted, generally consistent and entirely exculpatory, there are also inconsistences among them respecting such arguably significant matters as dates, timing, sequence and precise location.
[29] A summary of the evidence of each of these three witnesses follows.
(ii) The Defendant's Account
a. The Bellwoods Park Incident
[30] Sam, Connie and Aiden did meet AF on the street one night around summer in 2013. They had been to Connie's parents for dinner, stopped for an espresso at a Portuguese bakery on the way home and then ran into some friends. It was starting to get dark and they were headed home when they saw AF. She was holding a cell phone and speaking very loudly. Connie spoke with her in English. Sam did not understand them but he could tell that AF was "bad talking" – swearing. Sam walked in front with Aiden. He ran into another friend and all of them dropped into a local coffee bar.
[31] Sam ordered a beer for himself and his friend at the bar, his only drink of alcohol that day. AF was sitting and talking with Connie and Aiden. On the way out, a very drunk Portuguese-speaking man was "saying bad words" – making offensive remarks towards women in the bar. Sam told the man to be respectful. The man raised his arm towards Sam while holding a bottle. Sam raised his hand defensively. The bottle fell to the floor and an employee told the drunken man to leave. They all did. No one was hurt.
[32] They had been in the bar for about an hour and it was now dark. Sam's home is about a 20-minute walk from the bar. He and Aiden walked in front of Connie and AF. Aiden was sleepy and Sam picked him up and placed him on his shoulders. He fell asleep about halfway home. AF's mother was on the porch when they reached their house. After exchanging greetings, Sam took the sleeping Aiden upstairs and laid him down in the living room. He then came back out to the porch. Connie was talking with AF's mother on the front steps and AF was nowhere to be seen. AF's mother was crying. She asked Sam for a cigarette. He obliged. He had never seen her smoke before and was shaken by her request. He and Connie returned to their house after a few minutes. He then moved Aiden from the living room to his bedroom on the third floor.
[33] On Sam's account, he did not touch or try and kiss AF. She never entered his house that evening. He never saw her after he carried Aiden inside and laid him down in the living room. He was never alone with AF, or with only AF and Aiden, that evening or at any other time.
b. The Stereo Incident
[34] Sometime beginning in late-June 2013, Sam's sister Delia and her two sons (then aged around six and eight) and Jessica, the then twelve or thirteen year-old daughter of a second sister, stayed with Sam and Connie on a two-week visit from Portugal. The two boys bunked with Aiden on the third floor. Sam's sister and Jessica occupied Connie and Sam's second floor bedroom. And Connie and Sam slept on the sofa-bed in the living room.
[35] One evening around Canada Day, Sam, his sister, Connie and Jessica were sitting and talking on the front porch. It was early in the Portuguese visitors' trip. AF, Aiden and the two boys had also been on the porch, but she then went upstairs with the boys and Aiden. There was no party, but there was music playing on the stereo in the living room and the window was open to the front of the house. Suddenly the music stopped. Sam and Jessica went upstairs to see what had happened to the music. AF was in the living room playing with the three boys. Sam checked the stereo. A speaker was "burnt" and he could not fix it. He and Jessica then walked back down to the porch where he announced, "no music anymore". Sam never returned to the living room while AF was still in the house. He was never alone with her that day, never tried to kiss her, and never told her he wanted to have sex with her. He did not know when she left his home.
[36] Jessica returned to Portugal with her aunt and cousins at the end of their Canadian vacation. Sam kept in touch with her by phone, but not until around early 2014 when he was released on bail from an Immigration hold. He only told Jessica about his charges a month or so before the trial when he asked her to come to court. Sam had not earlier discussed the substance of the allegations with Jessica. He asked her what she recalled of the day the stereo broke. Connie had also spoken with Jessica, although he was not privy to those conversations. Jessica arrived in Canada about a week before this trial was to commence and stayed with Sam and Connie at their new home. He then told Jessica the nature of the charges and that AF was the complainant. He also told her that she would meet with a lawyer who would decide whether to call her as a witness.
[37] Sam never repaired the speaker. He has since relied on a small radio.
c. Thanksgiving 2013
[38] As family tradition dictates, Sam and Connie visited Connie's parents' home on the days before Thanksgiving to make chorizo sausages, a several-day process that began on the Thursday evening. On Friday, they returned home after 5pm and then went to a Portuguese restaurant for dinner with their friends, Alex and his girlfriend Jessica, who were then staying with Connie and Sam. At the restaurant, Sam saw AF and her father buying take-out food. After dinner, Sam's party returned home and he fell asleep watching the movie "Titanic". He never went out again and AF did not come over that evening.
[39] AF did play with Aiden one day that weekend. Although uncertain of the exact day, Sam recalls being on the porch with AF's mother and Connie when AF came over from her house and asked Connie in English if she could play with Aiden. The landlord and his wife were in Portugal, so Connie directed AF to play with Aiden in the vacant living room in the ground floor unit. Sam did not go into the house at any time while AF was inside with Aiden. She had not responded to her mother's calls and, at the latter's request, Sam several times loudly called AF's name. Finally AF emerged with Aiden from a room on the ground floor. She then left with her mother.
(iii) Connie's Account
a. The Bellwoods Park Incident
[40] Connie and Sam ran into a very distraught AF on the street one evening in 2013. It was late-April or May, not yet summer. It was soon after Sam's brother Claudio returned to Portugal after his three-week visit to Toronto, which is how Connie could fix the date.
[41] Connie, Sam and Aiden had a snack at a bakery about a ten-minute walk from their home. They met some friends of Sam's on the way back. Connie then saw AF walking from the direction of her home. It was close to 9pm. AF did not appear normal; she was very upset. AF explained that she was going to Bellwoods Park as she had just had a big argument with her mother and sister. "What! Again?", asked Connie. Based on their earlier conversations she understood that AF believed her older sister was better treated and that she resented it. AF's cell phone kept ringing as they walked together. She was answering the calls from her dad and, at Connie's insistence, those from her mom, but not those from her sister.
[42] They ran into another friend, Alex, who joined them at a local café. Sam and their friend each had a beer (Sam's first of the day) while Connie and AF shared a water. A drunk Portuguese man at the bar began directing crude comments at Connie and AF. Sam told him not to disrespect the women. The intoxicated man followed them outside and tried to throw a punch at Sam. Sam blocked the blow and the man dropped his bottle. "Let's go", said Connie, and they did.
[43] Aiden was upset and crying. He walked with Sam in front of the women on the way back. At some point Sam picked up Aiden, rested him on his shoulder and carried his sleeping son home. AF's mom was on her side of the porch when they got there. AF promptly entered her own home. And Sam promptly carried Aiden inside and up the stairs to their unit. He then came back downstairs and joined Connie and AF's mom on the porch. They talked for about an hour, AF's mom saying she had been worried and thanking Connie for looking after her daughter. Connie went inside to check on Aiden during their conversation. He was safely asleep on the bed in his room on the third floor. AF, she says, "did not go into my house that night".
b. The Stereo Incident
[44] Sam's relatives arrived from Portugal for a two-week visit on the last Saturday of June, the 29th: Sam's sister, her two sons and his niece Jessica. AF's family hosted a barbeque party in their back yard that weekend; Connie was "pretty sure" it was on Canada Day, July 1st (a Monday) or on the Sunday, June 30th. Sam and his family were on their side of the yard when their neighbours' party began. They had extended one of the stereo speakers to the kitchen in the back of the house so they could hear the music in the yard. Connie introduced AF to her Portuguese guests and at some point she hopped the fence and invited Aiden to go inside his house to play. Sam's two Portuguese nephews joined them.
[45] All four were in the house when the music coming from Sam and Connie's window suddenly stopped. This was about 15 to 20 minutes after AF and the boys had gone upstairs. Sam went inside to find out what happened, with Jessica at his heels, shouting, "Wait for me" in Portuguese. Sam and Jessica came back out within a couple of minutes and reported that there would be no more music, the speaker was blown. Aiden and Sam's nephews also came downstairs to explain that they had nothing to do with the music stopping: "We didn't do it", they said. All three then went back upstairs.
[46] Connie peaked-in on the children several times that evening – the "regular check-up", as she put it. AF was playing with the three boys in the living room. Connie did not tell AF to leave. She was sitting on the front porch when AF went home "through the front" door just after Sam finished mowing the front lawn. He, his sister and Jessica were also on the porch. They had moved to the front of the house when Sam redirected his garden cleanup from the back to the front of the house and AF's mom had joined them on their porch. Connie could not recall if it was already starting to get dark when AF left.
[47] The stereo system had never previously stopped working mid-song. Sam got rid of part of the system and Connie jettisoned the rest when she moved to a new home. She cannot recall another occasion when Sam went upstairs to check on the stereo or simply to check on AF and Aiden. It "didn't happen", she says.
c. Thanksgiving 2013
[48] Connie recalls AF coming over several times while Sam's Portuguese relatives were still visiting and before AF's own late-summer family trip to Portugal. She also visited once towards the end of the Thanksgiving weekend and played with Aiden in Connie and Sam's house. Other than call her name to summon her to go home, Sam never had any dealings with AF that day or anytime during the weekend.
[49] Connie and Sam spent much of the Thanksgiving weekend making sausages at Connie's parents' home. They started early Friday evening. Sam and Connie's good friends Alex and his wife Jessica had been staying at their home. They slept in Aiden's bedroom on the third floor while Aiden shared his parents' bedroom. The four adults, along with Aiden, had dinner at a Portuguese restaurant on the Friday evening. AF and her father walked in and collected take-out orders while they were having dinner. Sam and Connie returned to her parents to complete the sausage-making project on both Saturday and Sunday.
[50] Connie was sitting with Sam on their front porch on the Sunday or Monday evening when AF's mother joined them. Aiden was on the ground floor of their house watching TV in the landlord's unit. AF poked her head around the vertical divider and asked if Aiden could come over and play with her at her home. Connie said, "no". She was not comfortable with the idea: Aiden had never previously played at AF's home and her family had a dog. There had also been an earlier incident that gave Connie pause.
[51] Sometime in August or more likely September, AF had been on Connie's porch when she several times told Aiden to "get his thing up". Connie's friends Alex and Jessica were also on the porch. So was Sam, although he really didn't understand what AF was saying. Connie told AF her words were inappropriate, that one doesn't say these things to a little boy. She told AF she would not tolerate such language and that it was time to leave. AF did leave. She did not return to Connie and Sam's house until that evening of the Thanksgiving weekend when she again played with Aiden.
[52] Connie told AF she was concerned about letting her play with Aiden after her earlier inappropriate comments. AF's mother was clearly at a loss and Connie asked AF which of them should tell her what had happened. Connie eventually explained what had occurred and AF apologized. Connie then told AF that it was all right if she came over to play with Aiden, but only if they stayed on the main floor of the house. The landlord and his wife were still in Portugal and Sam and Connie had use of their premises.
[53] AF retrieved her shoes from her house and then joined Aiden in Connie and Sam's unit. Connie popped her head in every few minutes to be sure everything was OK. At some point the ground-floor silence led her to believe they had gone upstairs. She was not pleased with the change of venue, but said nothing. Soon after, AF's mom asked Sam to summon her daughter so they could go home. Sam was standing at the front door, smoking. He stepped into the hallway and called AF's name. He did not go upstairs. AF came downstairs the third time he called her name, and then returned to her home. Alex and Jessica had been in the third floor bedroom while AF played with Aiden in the house. Connie did not see AF again until after Sam was arrested.
[54] Crown counsel cross-examined Connie respecting her relationship with AF. Connie explained that AF initiated her visits and that she, as a neighbour, was disinclined to say "no". Nothing inappropriate occurred until AF left a mess in the living room after a visit with Aiden. Many items that had been on shelves Aiden could not reach were scattered on the floor. This occurred in late-August or September, after AF's family vacation in Portugal. Connie was upset with AF and asked her to leave. Later, when looking for her key, Connie discovered that five dollars was missing from her coat pocket. She "didn't accuse" AF of taking the money, but she did tell her it was missing and that it was strange as no one else had been in the house. She also told her she was "no longer welcome" in her house. Connie later relented and allowed AF to return, likely on the Thanksgiving weekend.
(iv) Jessica's Account
[55] Jessica was about 13½ when she visited Toronto for about two weeks in mid-2013. She was 15 and in grade 12 in the Azores at the time she testified at the defendant's trial. Her testimony is directly relevant only to the incident around Canada Day, when the music stopped.
[56] Jessica, her aunt and her two cousins arrived in Toronto on the afternoon of June 29, 2013. She sat on the porch with the adults her first night at Connie and Sam's house. The adults were drinking, but not to excess. Jessica's second night in Toronto, June 30th, was very similar: spent on the front porch with Sam, Connie and her aunt. Music was playing upstairs both nights. Sam had a beer that evening. She only saw him consume alcohol when he was with his family.
[57] There was never a "party" at Connie and Sam's while she stayed at their apartment. However, there was a party in the backyard of the adjoining house on Canada Day, a day or two after Jessica arrived. Connie introduced her to AF at the party, but neither spoke the other's language. Later that day she was again hanging out with her aunt and Connie and Sam on their front porch. AF was also present and spoke to Aiden. Although Jessica could not understand the words, she inferred she said something like, "Let's go play". Jessica believed Aiden was about three years old then. He spoke English but not Portuguese. Jessica's two cousins joined Aiden and AF and all four went into the house. Jessica could not recall the time, but it was after dinner and before dark.
[58] Sometime later the music from upstairs stopped. She and Sam went upstairs to find out what had happened. AF was in the living room, playing with the three boys. Sam tried to fix the stereo but was unsuccessful. Jessica never heard it operate during the rest of her trip. She and Sam then returned to the front porch together, leaving AF with the boys in the living room. Sometime later AF's mother came over to Connie and Sam's porch and called for AF; Jessica assumed she was telling her it was getting late and it was time to come home. Jessica saw AF eventually leave, but she could not recall when.
[59] In cross-examination, Jessica was clear that there was never another occasion when she went upstairs and saw AF playing with the boys. Further, she only saw AF inside Sam and Connie's house on July 1st, not on June 29th or 30th.
[60] Jessica testified on February 10, 2015. She first learned Sam had been charged when told by her mother. Later, sometime before Christmas 2014, her mother asked her if she remembered what happened the day the music stopped during her visit to Toronto. She advised her mother what she remembered. She shared the same recall with Sam when she returned to Canada to testify. No one told her what to say. She told only the truth. She has a strong relationship with Sam and he has a strong relationship with Aiden. But, she said, she would not lie to help her uncle.
C. ANALYSIS
(a) Introduction
[61] I have set out the testimony of the four witnesses at considerable length. This is in part to display both the rich detail of their individual recall and the inherent logic of each as a freestanding exercise in testimonial narrative. It is also intended to demonstrate both the consistencies and inconsistencies among their accounts. What should be immediately apparent is the stark contradiction between the allegations made by AF and their direct denial by the defendant and, directly and indirectly, the evidence of his wife and niece.
[62] He-say/she-say testimonial disputes are commonplace in criminal courts. Their ubiquity does not make their resolution any easier. Consistent with the presumption of innocence, the law has developed an analytical framework for determining a just result in such cases. I turn first to these principles, and then to their application to the evidence before me. While there are significant legal distinctions between the two offences charged, they are of no moment in the resolution of this matter as they both arise from the same alleged misconduct and the defence position is one of blanket denial respecting all claims of sexual misbehaviour on the only evening at issue, that following the meeting near Bellwoods Park in June 2013.
(b) The Governing Legal Principles
[63] The law governing the analysis of credibility disputes is both long settled and forever being refined. An evaluation of the credibility of the witnesses is crucial to the disposition of this prosecution. "Credibility" comprehends two distinct facets or dimensions of credit-worthiness – honesty and reliability. The former, "honesty", speaks to the sincerity and candour of a witness' evidence while the latter relates more to factors such as perception, memory and communication. (See, for example, the discussions in R. v. Thomas, 2012 ONSC 6653, at para. 13, and the appellate authorities there cited.) Both considerations impact on the credit-worthiness – the accuracy, believability and trustworthiness – of a witness' account.
[64] The principles controlling the determination of cases involving competing testimonial narratives are set out by the Supreme Court in the seminal case of R. v. W.(D.), (1991) 63 C.C.C. (3d) 397. As explained in R. v. J.H.S., 2008 SCC 30, at para. 9, W.(D.) "simply unpacks what reasonable doubt means in the context of evaluating conflicting testimonial accounts". Even where, as here, a case largely presents as a contest of credibility, the adjudicative focus must remain fixed on the standard of reasonable doubt. (See, for example, R. v. Avetysan, 2000 SCC 56, esp. at paras. 20-2; R. v. Minuskin, at 550; R. v. Rattray, 2007 ONCA 164.) It matters not which account is preferred or even more probable. The test is that of proof beyond reasonable doubt. Wherever and however grounded, a substantive deficit in this regard necessarily translates into acquittal. As said simply by the Court of Appeal in R. v. Challice, (1979) 45 C.C.C. (2d) 546, at 557 (and subsequently adopted, and underscored, by the Supreme Court as a correct statement of the law in R. v. Morin, [1988] 2 S.C.R 345, at para. 28),
[I]t is not necessary for [the trier] to believe the defence evidence on a vital issue – but it is sufficient if it, viewed in the context of all the evidence, leaves [the trier] in a state of reasonable doubt as to the accused's guilt.
R. v. W.(D.) makes clear that so long as there remains a basis for reasonable doubt respecting the veracity of an incriminatory account the same rule applies even if a defendant's evidence is entirely rejected or he or she elects not to testify.
[65] A judge presiding, as here, at a judge-alone trial must, like every trier of fact, consider all of the evidence bearing on a witness' credibility. He or she may, with reason, accept none, some or all of the evidence of any witness: R. v. J.H.S., 2008 SCC 30, at para. 10; R. v. Francois, [1994] 2 S.C.R. 27, at para. 14; R. v. M.R., 2010 ONCA 285, at para. 6; R. v. Abdallah, at paras. 4-5. The judge can similarly accord different weight to different portions of the evidence that he or she does accept: R. v. Howe, at para. 44. And where, as here, a defendant testifies, his evidence – like that of any witness – must be assessed in the context of all other evidence and not in isolation. (See R. v. Humphrey, 2011 ONSC 3024, at para. 152; R. v. Newton, at para. 5; R. v. Hull, at para. 5; R. v. Snider, 2006 ONCJ 65, at para. 37; R. v. Hoohing, 2007 ONCA 577, at para. 15.)
[66] A foundation for reasonable doubt may be found in any witness' testimony. So too, a finding of guilt may be safely grounded on the evidence of a single witness if, of course, sufficiently credible and persuasive to meet the requisite standard for such verdict: R. v. A.G., 2000 SCC 17, at 453-454; Vetrovec v. The Queen, [1982] 1 S.C.R. 811, at 819. Finally, acceptance of an inculpatory account may itself be a proper basis for rejecting a defendant's and any defence-supportive testimony: R. v. D. (J.J.R.), at para. 53; R. v. M. (R.E.), 2008 SCC 51, at para. 66; and R. v. Thomas, supra, at para. 26.
(c) Applying the Law
[67] The prosecution's case is entirely founded on the complainant's testimony. Her core allegations are unconfirmed. No witness lends support to her claims that:
- The defendant touched her, let alone sexually;
- The defendant sexually propositioned her, and on three occasions over a span of four months; and
- But for the presence of his three-year-old son and (on one occasion) two nephews, she and the defendant were alone together in the second floor living room of the defendant's home.
Each of these allegations is directly contradicted by the defendant whose denials are buttressed, directly and indirectly, by the evidence of his wife Connie and niece Jessica.
[68] Contrary evidence aside, the defence says that the complainant's account is too improbable a platform on which to safely rest a finding of criminal guilt. It is simply incomprehensible, the argument continues, that the defendant would hazard exposure by groping and repeatedly propositioning AF in the presence of his own son, at risk of his wife, friends or family members suddenly entering the room and, on at least two of the alleged occasions, with the complainant's mother on the front porch. The Crown acknowledges the implausibility of the misconduct attributed to the defendant but characterizes it as an exercise in calculated opportunism that, on at least the occasion that gives rise to the charges, was facilitated by the defendant's drunken state, as so described by the complainant.
[69] I recognize that there are material inconsistencies in the evidence of the three witnesses called by the defence. I recognize, as well, that the complainant's testimonial account is rich in detail and resonant of colloquial memory rather than the artifice of fabrication – although I hasten to add that the testimony of both Connie and Jessica presents as equally uncontrived and genuine. And I appreciate that there is no tangible evidence of motive to make false allegations against the defendant, while reminding myself that no such proof is required to ground doubt about AF's account.
[70] To be clear, I do not find the facial implausibility of the circumstances surrounding the defendant's alleged improprieties fatal to the creditworthiness of AF's account. Those of us who toil in the criminal courts far too often hear convincing evidence of scenarios in which accused persons have abused their positions of authority, trust or familiarity – teachers, relatives, neighbours – to take advantage of children or adolescents in their charge or within their personal orbit of confidence, despite the relative transparency of their improprieties. On one hand, such behaviour sounds impossibly brazen or reckless. On the other, the fact that adults are physically proximate lends a measure of deniability while permitting close calibration and minimization of calculable jeopardy. Implausible perhaps but, sometimes no more than a case of hiding in plain sight. Yes, the defendant's risk of exposure, as described by the complainant, is a factor, but it is hardly dispositive of AF's creditworthiness.
[71] There are, however, other and, to my mind, more telling implausibilities affecting the complainant's account. Two are particularly troubling.
[72] First, I have considerable difficulty accepting AF's allegation that she went upstairs to play with Aiden in his living room upon returning from her aborted sleep-out in Bellwoods Park. There is little disagreement among the three witnesses who testified as to the events preceding AF's return to her parents' home that evening. Nor is the precise date of any significant moment: the day, if not date, is fixed by the complainant as that of her leaving home to camp out in the park, and the defendant and his wife's testimony is responsive to that essential particularization. There is no room here for confusion as to the evening or events at issue.
[73] The one material difference in the generally parallel accounts of their walk home is AF's allegation that the defendant was drunk. I am inclined, in the end, to favour the defendant's and his wife's assessment of his sobriety that evening, and that of the latter two and Jessica as to his generally modest pattern of alcohol consumption over the "pretty much always drunk" characterization advanced by AF.
In the end, however, I need not resolve this testimonial conflict as I cannot credit AF's assertion that she went upstairs and played with Aiden in his living room on returning home that evening.
[74] By any standard, the night was a traumatic one. A 15-year-old had, for the first time in her life, left home and in an agitated state to sleep in a public park after a furious argument with her mother and sister. Her parents tried desperately to reach her and, when she finally returned, her mother was waiting for her on the front porch. All the parties agree that it was at least close to midnight. Even AF agreed that Aiden was crying and upset (although not, she ventures, tired) and that Sam carried him on the way home from the café. I cannot, against this background, accept the complainant's assertion that Connie agreed that this was an appropriate time to play with Aiden at the defendant's home and granted her permission to do so. Nor, applying common sense, can I accept that her mother condoned such behaviour at that hour and in light of the preceding events. In short, I have more than considerable doubt respecting the complainant's claim that she accompanied Aiden to his living room on the evening of the Bellwoods Park misadventure. This doubt, of course, harmonizes with the testimony of the defendant and his wife Connie who both deny that AF entered their house that evening. Their evidence aside, the implausibility of AF's account alone leads me to suspect the veracity of her claims as to the improprieties she said occurred upon returning from Bellwoods Park and the café.
[75] Second, I am also hesitant to accept the complainant's recital of her re-attendance at the defendant's home on the Thanksgiving weekend. AF was disturbed by the groping she says she experienced on the evening of the Bellwoods Park incident. She made a return visit around Canada Day and, sure enough, encountered similar advances and importuning. AF is clearly an intelligent young woman. She, on her own admission, is capable of learning from experience. Given two strongly negative experiences, as she describes them, in the defendant's living room and in the presence of his toddler son, I find it difficult to comprehend why she would have so readily exposed herself – indeed, on her testimony, effectively invited – similar jeopardy by asking to play with Aiden and then escorting him to the second floor in circumstances that almost perfectly mimicked those that had precipitated the earlier improprieties she attributes to the defendant. Nor does AF's somewhat tentative explanation – that she doesn't "really know why she went over there at all" that night –rehabilitate her credibility on this point.
[76] Aside from these implausibilities, I am also troubled by the direct conflict between AF's recital of the incident on the Canada Day weekend and those tendered through the three witnesses called by the defence – particularly that of the defendant's niece Jessica. There are patent inconsistencies between the various defence accounts (for example, the specific day, the location of the parties when the music is said to have abruptly stopped, and the nature of the alleged stereo malfunction), but what remains constant, and critically so, is the defence claim that Jessica accompanied her uncle, the defendant, on and throughout the single occasion he attended the upstairs living room to check on the status of the stereo system. I accept Jessica's evidence in this regard or, at least, find it sufficiently compelling to cause me to seriously suspect the integrity of the complainant's account of the events of that evening. Jessica was a direct and persuasive witness. Her evidence was delivered in a consistently straightforward manner. It was free of evasions or nuance. And it only grew more convincing in cross-examination. While Jessica's testimonial narrative relates solely to the Canada Day weekend events, my positive assessment of her credibility inevitably impacts, and negatively so, on my evaluation of the complainant's – not only with respect to the "broken stereo" incident but as to the trustworthiness of her evidence at large.
[77] No further or more detailed analytical deconstruction of the evidence is necessary in view of these findings. That said, I note that I am generally impressed by the sincerity of Connie's account of the relevant events and the history of her relationship with AF. At bottom, I simply do not have the requisite confidence in the complainant's recounting of the events giving rise to the charges before me to ground a finding of guilt. The defendant's acquittal necessarily follows.
[78] One relatively minor additional point, if I may. Crown counsel, alluding to Browne v. Dunn, (1893) 6 R. 67, at 70 (H.L.), takes issue with defence counsel's failure to put to AF Connie's allegations respecting the mess caused by the complainant and her subsequent discovery that five dollars was missing. First, these embroideries, while discreditable in their potential effect, are not directly material to the allegations before me. Second, the "mess" allegation was put to AF in cross-examination. Third, Connie never said she directly accused AF of taking the five dollars. Fourth, and in response to my inquiry, Crown counsel made clear that she was not proposing to recall the complainant. And finally, I stipulated that, in any event, I would exclude this portion of Connie's evidence from my assessment of AF's credibility, an undertaking I have honoured in rendering these reasons. I add only that this itemization, particularly the first four factors thereof, effectively neutralize the application of the rule in Browne v. Dunn. (See, by way of example only, R. v. Verney and R. v. McNeill.) And finally, and in any event, it would seem passing strange that the Crown could invoke the rule respecting evidence that was only elicited in the course of its own cross-examination of a defence witness. (See R. v. Graziano, [2015] O.J. No. 3449 (C.A.), esp. at paras. 34-37.)
D. CONCLUSION
[79] For the reasons just set out, I find the defendant not guilty of the two offences with which he is charged.
Released on July 21, 2015
Justice Melvyn Green
