WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

486.2 Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Central East - Newmarket 15-06868

Date: 2016-08-04

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

D.A.

Before: Justice P.N. Bourque

Counsel:

• R. Scott, for the Crown
• F. Pizzimenti, for the defendant, D.A.

Reasons for Judgment

Released on August 4, 2016

Overview

[1] The defendant is charged with the sexual assault and interference of a young girl who lived in a house across the street. These events happened between 2003 and 2006, although these charges relate only to the events which occurred between September 13, 2005 and June 30, 2006, as the defendant was an adult from September 13, 2005. The complainant is over five years younger than the defendant. As is usual in these circumstances, the Crown's evidence consisted largely of the evidence of the (now) young woman, V.W.

Evidence of the Crown

The Complainant: V.W.

[2] The witness is now 23 years of age and was born on May 26, 1993. She relates that during the time of these events, she lived at (...street) in Woodbridge, Ontario. The defendant lived in a house with his family across the road from the complainant.

[3] ...Street is a small court with 4 houses on it. The complainant lived with her older sister A.W. and younger sister I.W. Their parents' home is in the centre of two other houses. The defendant lived across the court in his parent's house with his older brother.

[4] In the summer, between her 4th and 5th grade, the witness stated that she played a game of Truth or Dare with the defendant and two other children. She stated that she kissed the defendant. She stated that she had a strong "crush" on the defendant.

[5] She stated that into the fall of her 5th grade, she would communicate with the defendant on MSN and they would exchange messages. She stated that she would on many occasions attend at his house after school, when her mother was at work. The witness described that her mother worked part-time with her husband at a "flight school" and would be away from the home until 9:00 p.m. at night.

[6] She stated that she would start to meet the defendant in his garage in the fall of her 5th grade. She stated that they would kiss. At subsequent meetings, he would feel her body over her clothes. At further meetings, this would progress to feeling under her clothes. She stated that he would then hold her hand over his penis and she would give him a hand job. She also stated that it progressed to him giving her oral sex. She stated that it progressed to her giving him a blow job and then vaginal intercourse. This all progressed over a period of four to five months.

[7] She stated that she would have sex with him at least once per week (when her mother was at work) and sometimes it was several days a week. She stated that it stopped in the summer of the 8th grade when she went to a cousin's place for the summer. That was the summer that Italy won the World Cup of soccer (July, 2006).

[8] They would do this in the garage and then go into his basement (where his bedroom was). She would wear clothing and underwear (she took some from her mother's drawer) that he wanted her to wear. She also stated that she would wear bracelets that would have some symbolism between them as to what sort of sex he would like to have. She stated that he would pull on the colour of bracelet and this would let her know what type of sex he was seeking. Filed as exhibits were some pictures of her (Exhibits 5 "A", "B", "C", "D") showing her with these bracelets. One of the pictures shows her with her girlfriends on her 12th birthday. That would be May, 2005. In cross-examination, she admitted that other girls wore these bracelets but that did not necessarily mean they were engaged in sex and she agreed. She was still adamant that she and the defendant used the bracelets to signal this purpose.

[9] She stated that during the 6th grade, she began to get her period. She knew what it was as her older sister and mother had periods. She never at any time used birth control and the defendant didn't either. She stated in her evidence at one point when she came home from sexual intercourse with him she was bleeding a lot the next day. He told her it was just her period but she believed that he had "ripped" her from the act of intercourse. She broke down in tears in the witness box and I stopped the proceedings.

[10] When Italy won the World Cup of soccer in July of 2006, she went down to her cousin's house to celebrate. She decided to stay with her cousin throughout the summer. She did not have contact with the defendant for the rest of the summer. When she returned to her mother's house in the fall of 2006, she did not resume contact with the defendant. She could not say exactly why.

[11] She indicated that during this long time of meeting with the defendant, the only thing they did was have sex, be it kissing, oral sex or intercourse. She never sent him a letter nor did she receive any letter from him. They never bought gifts for each other. They never went out on any sort of "date". She stated that he showed her a bracelet which he got from his "girlfriend". It was inscribed "I (heart symbol) U". She knew the girl's name as Alyssa. She never met her.

[12] While the sex started in the garage and in the car parked there, the sex eventually moved into his basement and into a spare room with a water bed. She also had sex in his room (nearby) and the washroom, which was also in the basement. She described the area in some detail.

[13] She never, even after beginning to menstruate, used any type of birth control and she said that he did not use any birth control either. She stated that once her period was late and she bought a pregnancy test kit at the local drugstore. She stated that her mother found the receipt and she had to lie to her mother and say that she bought the kit for a girlfriend.

[14] Filed as an exhibit was extracts from her diary, the only thing of any relevance is a reference to the defendant's phone numbers, his home number and of more importance, his unlisted cell phone number.

[15] The complainant stated that she became a difficult child through her high school years and would often run away from home. She smoked some pot and on occasion stole money from her mother. She said that she cut her wrists several times and she also took an overdose of medication. She described herself as "being out of control". She stated that her mother kept asking her why she was running away and why she was hurting herself and she said that something had happened and gave no details. She stated that on April 10, 2012, two policemen came to her house to tell her that her father had died. Her mother tried to get her to speak to the police about these matters but she did not want to. She stated that after the death of her father, she began to reconsider and went to the police in December 2013.

[16] She stated that for the period of the year before the World Cup, she had sexual relations with the defendant at least once a week and it included sexual intercourse and oral sex. She stated that after the summer she went to her cousin's, she had contact with the defendant twice. Once, he left a message on her Facebook page asking her to come over for "old times' sake" but she did not respond.

[17] On June 6, 2012, the defendant called her and asked why her mother was yelling over at people at his house. She said they spoke for 36 minutes. She told him what happened was rape and he said to her that she wanted it as much as him and she had come over to his house. He went on to say that he had a new girlfriend and he did not want to have his life ruined. She told him that she would not report it to the police. He never contacted her again.

[18] What she has been describing is a very cold and mechanical affair between this girl who was between 10 and 13 years of age and a boy who was between 15 and 18 years of age, some five years and four months older than her. She gave her evidence in-chief in a quiet and straightforward manner. She showed no great animus to the defendant other than the time she broke down when she described her vaginal bleeding and his reaction to it. It is clear that she did not object to any of this and willingly came over to his house for these sessions. She was quite frank about her difficult times afterwards.

Issues Raised in Cross-Examination

[19] In cross-examination, she asserted that she never went swimming with the defendant. This is something at odds with what she said in her statement to the police, but she did include the statement about going bowling, which she talked about in examination in-chief. She also stated in examination in-chief that she only watched a movie with the defendant once but in her statement to the police she suggested that it was more than once. She also stated in court that when she was on MSN (a computer texting service) when her mother came into the room, she would put two smiley faces as a signal to the defendant. She did not mention this detail to the police.

[20] The defence explored any issues of animus between the complainant and the defendant's families. The witness denied any animus. Her memory recall was such that she remembered them coming to their home to welcome them to the neighbourhood. There was no other real contact between the families after that other than a wave across the street on occasion.

[21] The witness denied that she would sit at her window to watch the defendant. She admitted that her bedroom overlooked the street and she had seen the defendant from her window.

[22] The defence pointed out that in her interview with the Crown attorney one month before the trial began, she was asked how often she would have sex with the defendant in the year before it ended. In the officer's notes, the witness's reply is 3 to 4 times. The witness agreed that is what she said but believed that she had been asked how many times a week would she be having sex with the defendant. My review of this question and answer leaves it unclear. I note that the witness qualified it with a statement that it was days when her mother was at work. The witness was adamant and shocked that anyone would think that she would say that she only had sex so few times when all along it was her assertion (in court and in her statement to the police in December, 2013) that she had sex with the defendant a minimum of once per week throughout this whole period. I am prepared to accept the witness's assertion in this regard, and I specifically find that she did not make a serious contradiction of her previously stated evidence.

[23] In her statement to the police, she stated that the incidents ceased when she went to her cousin's for the World Cup of soccer. She also said it was between her 6th and 7th grade. She admitted that the grades were wrong as it was actually between grades 7 and 8.

[24] The witness was referred to notes from an officer where the officer purported to say that the witness said that the defendant was having sex with other children. The witness had no recollection of speaking to that officer and certainly denied saying that to any officer.

[25] She ultimately related that she disclosed to her mother the abuse in 2011 but did not go to the police until December, 2013. She admitted that it was her mother who spoke to the police in April or May, 2012, and she agreed that she did not want to go to the police with it.

[26] She admitted that her mother wanted her to go to the police and told her "it was the right thing to do", but denied that her mother "pestered" her to go to the police. She stated that she did not want to go to the police until she was ready to do so.

[27] The defence asked her if she knew if the defendant was circumcised or not. In her statement to the police, she gave the same reply but added that she thought he may have been circumcised. She said that she does not know, notwithstanding that she performed oral sex upon him. She explained that while she knows now what circumcision is, at the time she did not. It was not something that she took a special notice of.

A.B.

[28] . . . was a girlfriend of the defendant when she was in grade 10 and the defendant was in grade 11 or 12 at Holy Cross Catholic Academy. She stated that they were in that status for one to one and-a-half years. She stated that she went to his house very infrequently and only went to his basement. She recalls there being a sitting room with a TV and a spare bedroom with a water bed. She stated that she may have driven there. She did not say that she owned a white Volkswagen.

[29] She stated that during their relationship, she gave the defendant a silver ring and she had an engraving inside. She could not remember what the engraving said. She stated that she knew that the defendant played soccer but did not know if he played on the school team or any other school sports teams. She stated that the defendant only spoke of one other person on his street and that was a younger boy named John (she said Sebastian in her statement to the police last year). She described that for a time, the defendant drove a blue Mazda automobile and that his parents had a BMW and a Mercedes.

[30] She was ultimately quite hazy as to the details of her memory of her time with the defendant, as one would expect.

A.W.

[31] . . . is the older sister of the complainant. She recalls being two years ahead of her sister in school. She recalls coming to the neighbourhood. She did not play much with the other children in the street. She appears to have kept more to herself than her sister. She knew the defendant and his brother but was never alone with the defendant and had never been in his house. She thought that when they would play together that the defendant would sometimes favour her sister by asking her to play on his team.

[32] She confirmed that while they were both in grade school, she and her sister would walk home together. She did not see the defendant at any of these times. She also said that they would be home alone most nights as her mother would work with her father to after dark on most nights. She stated that she and her sister would get "junk food" to eat and she would watch TV. She was totally unaware of her sister going to the defendant's home any time after school. She was extensively cross-examined about whether her grandmother was staying with them at any of these times. She was adamant that the grandmother only came well after 2006. As I review those portions of her statement to the police when she commented on this issue, I do not find any contradiction to her evidence in court.

Statement of the Defendant to the Police

[33] After a voir dire and Charter application, I ruled that portions of the statement made by the defendant to the police to be allowed into evidence. It is not a confession. The defendant did not answer any questions dealing with the allegations against him. He did confirm several personal particulars including his age, the car ownership in his family and the fact that both his parents were working late most evenings in the time period that the complainant states that the assaults were continuing. He also stated that he had "no idea" of the ages of V.W. or her sister A.W., and that he "never hanged out with them."

Evidence of the Defence

Character Evidence

[34] The defence called two witnesses to attest to the general reputation in the community of the defendant for honesty, integrity and morality. The first witness was his aunt A.C.M. She had a most impressive resume and is involved with non-profit charity work and is a member of a provincial board. She would see the defendant very often as they lived close, they are a close-knit family and she would visit the defendant's home many times. It was her opinion that the defendant had a good reputation in the community and while she could not cite specific examples of people's statements to her, she "knew for a fact that people would put their children in his hands."

[35] In cross-examination, she confirmed the layout of the defendant's residence including the spare bedroom in the basement. She confirmed that she saw children from the neighbourhood in the home.

[36] The second character witness was D.C. and is an old friend of the defendant and they went to school together and still maintain contact. He is a district manager. He also attests to the good reputation that the defendant has in the community. In cross-examination he also talked about the layout of the basement of the defendant's home.

D.A.

[37] The defendant testified. He denied that he had any sexual relations with the complainant. He denied that he played "truth or dare" with her. He stated that he saw her on the street (he did not see her sister A.W.), but denied playing with her. He could not recall any conversation with her.

[38] He confirmed his residence through those years. He confirmed the following:

(i) He went to high school and came home most days after 3:00 p.m.;

(ii) He played sports at school and would sometimes stay late past 5:00 p.m.;

(iii) His father worked between 5:30 and 6:00 p.m. each evening;

(iv) His mother worked for the family business and most nights would be at work until 8:00 p.m. She would come home early on some occasions;

(v) He, for a period of time, drove a blue Mazda 3 automobile and his father drove a BMW and his mother drove a Mercedes;

(vi) His bedroom was in the basement and there was a sitting TV room and a glass door outside.

[39] He denied that he knew the complainant more than seeing her on the street and she would be around when he was playing sports like basketball with other boys on the street. He denied knowing that the complainant had a "crush" on him. He did not testify as to any specific conversation that he may have had with her in these years.

[40] With regard to the ring that was given to him by his girlfriend, he stated that it was a band and at the time it had sentimental value to him. He did not have the ring anymore. He stated that on some occasions when he was playing basketball outside, the kids (including the complainant) would be watching. He stated that his fingers would swell and he would take off his ring and place it on the hydro box nearby. When he was questioned about this by the Crown, he asserted that the complainant could have seen the inscription by picking it up, although he did not testify that she had done so.

[41] With regard to the telephone call with the complainant in June, 2012, he said that he got her phone number from one of the boys on the street. He stated that his mother asked him to call to find out. He denied ever having her number or ever speaking to her on the phone before. He stated that the only purpose for his call was the fact that her mother had been yelling things across the street to his parents. It was his evidence that everyone on the street thought that the complainant's mother was a little odd. He stated that it was a short call. He stated that he told her about his present circumstance, living in a condo and having a girlfriend, and then he asked her why her mother was saying things to his mother. He stated that she replied: "You know why." The defendant stated that he said he did not know but the complainant simply kept saying "You know why." He stated that the conversation ended shortly. He denied ever making any other inquiries with her or anyone else about this matter. He denied that she told him that she would not tell the police about anything, and that satisfied him. Upon cross-examination he did not explain why (if she would not tell him directly what the issue was), he did not make further inquiries.

[42] In cross-examination, he admitted that he told the police that he did not have any idea about the age of V.W. and A.W. and stated that he did not hang out with them. It is clear that his evidence in its substance is that V.W. was a person that he did not know at all. He never spoke to her, never listened to her, never spent time with her, and certainly never engaged in the long-term sexual liaison that the complainant speaks of. He only knew her as a girl across the street and sometimes she would be on the street when he was playing outside with his friends.

Analysis

[43] The Crown bears a significant burden in proving the essential elements of these offences beyond a reasonable doubt. As stated in R. v. Lifchus, [1997] 3 S.C.R. 320:

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

Reasonable doubt is not a doubt based upon sympathy or prejudice;

Rather, it is based upon reason and common sense;

It is logically connected to the evidence or absence of evidence;

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

More is required than proof that the accused is probably guilty - a (Judge) jury which concludes only that the accused is probably guilty must acquit.

[44] As part of the concept of reasonable doubt, where the defendant has led evidence, which if believed would afford a defence to the charge, I must and do consider the further decision in R. v. W.D. (1991), 63 C.C.C. (3d) 397 (S.C.C.) at page 409:

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

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

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

[45] As stated by Hill, J. in R. v. W.B. 2015 ONSC 7663:

[124] The vast majority of sexual assault prosecutions turn on the evidence of the two principals – the complainant and the accused: R. v. M.(S.C.), [2007] O.J. No. 1624 (C.A.), at para. 3. However, a verdict of guilty may, in appropriate cases, be safely founded on the evidence of a single witness, regardless of the offence or offences charged: The Queen v. G.(A.), 2000 SCC 17, [2000] 1 S.C.R. 439, at pp. 453-4; Vetrovec v. The Queen (1982), 67 C.C.C. (2d) 1 (S.C.C.), at p. 8.

[125] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses or a bipolar choice between competing prosecution and defence evidence. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.) v. The Queen (1991), 63 C.C.C. (3d) 397 (S.C.C.), at p. 409; Avetsyan v. The Queen (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.), at pp.85-87.

[46] The defendant has denied all of the allegations against him. In many respects, his evidence was that of any young man growing up in a suburban neighbourhood. The parents would work hard (and long), the children would go to and from school, partaking in sports and other extracurricular activities and sometimes see each other on the street. The character evidence called by the defendant supports this benign view of life on ...Street in Woodbridge, Ontario.

[47] The defendant gave his evidence in a forthright manner. He was responsive to all questions. He did not give longwinded answers or explanations. He showed no animus to the complainant. He did on one occasion make a disparaging remark about the complainant's mother, but it was not an integral part of his evidence. The evidence of his good character is supportive of an acceptance of his evidence and his version of events. However, with regard to the character evidence, I am mindful of the fact that as sexual offences involving children typically occur in private, evidence of good character (including a reputation for high moral standards) in the community is of diminished value in these cases: see R. v. Profit, [1993] 3 SCR 637, R. v. Bogan 2015 ONSC 7901.

[48] His evidence did, however, confirm several aspects of the complainant's evidence particularly on the issues of the opportunities that the defendant had to meet with the complainant at the times and with the frequency that she suggests. The descriptions of the basement of the defendant's home are very consistent with the descriptions given by a person who (according to the defendant) was never in the basement. The fact that his bedroom (and the spare bedroom) were in the basement also adds to the evidence of opportunity to carry on as the complainant testified to. The basement was, to all intents and purposes (for the times that the parents were at work) the defendant's space to use as he wished and to perhaps, keep secrets from others. Simply having knowledge of the defendant's school schedule and time home alone before his parents came home is some confirmation of the complainant's testimony. By his testimony, he barely knew this girl and only knew that she was one of the children who played on the street. How could she now so much about his schedule during these years if they had no contact? He identified that his cell phone number is the same one that is in her diary (Exhibit 6). While he took no great steps to keep his number a secret, it was not a published number (like his home number).

[49] The evidence of the defendant's work in the summers and his going to Portugal in the summer of 2004 coincides in large measure with the complainant's recollection. While this information could have been known to the complainant without the activity that she testified to, all parties indicated that these families were not close, they did not socialize with each other (the adults or the children) and such information while not a secret would not be widely known on the street.

[50] There are two aspects of his evidence which give me great pause and, coupled with all of the other evidence, ultimately make it impossible for me to accept his version of events.

[51] The evidence of his girlfriend about the ring that she gave him and the fact that there was an inscription on the inside of the ring (that was known by the complainant) goes a long way to confirming that the defendant showed this ring to the complainant. The evidence of the defendant about the taking off of the ring when he was playing sports outside his house does not in any way convince me that the complainant could have known about the ring and the inscription in that fashion. The taking off of a band (like a wedding band) is hardly necessary during physical activity. If however it was the case, why take off a ring (with great sentimental value) and leave it outside? Why not leave it inside or even put it in your pocket.

[52] Even if the complainant somehow saw the ring and its inscription in this fashion, how does that explain that the defendant got it from his girlfriend A.B.? In my opinion, his explanation makes little sense and it comes from a desperate need on his part to give some explanation for why the complainant knew about the ring, the giver of the ring, and the inscription inside the ring. For him, that impacts negatively upon his general credibility with all of his evidence.

[53] Secondly, the defendant's version of the telephone conversation of June, 2012 is problematical to say the least. That he would make the call at all could be indicative of the fact that he knew the complainant much more that he wanted to reveal. To ask why you and perhaps your family are being slandered by a neighbour, then met with the reply ("You know why") and not making further inquiries is almost beyond belief, unless you indeed knew what the complainant was referring to. The fact that he did not make further inquiries (after the phone call) would lend confirmation to the complainant's assertion that she told the defendant that she would not be going to the police.

[54] For the reasons aforesaid, I find that I do not accept the defendant's testimony. The question still remains as to whether his evidence leaves me with a reasonable doubt. For the reasons that I have set out above, it is beyond belief that the complainant would have so much knowledge of the defendant if they did not interact at all, which is the substance of his testimony. It is clear that they did interact and for that reason, I do not find that his testimony leaves me with a reasonable doubt.

[55] That does not end the matter. Having rejected the defendant's evidence and not left in a reasonable doubt by it, I must now turn to the Crown's evidence and ask myself whether it convinces me beyond a reasonable doubt about the guilt of the defendant. The Crown's case will, of course, rise or fall on the credibility of the witness V.W. As stated in many cases "…in the overall assessment of the evidence, there is a special need to self-instruct on the frailties of evidence concerning events from the distant past. Trials concerning distant events may call for a direction to proceed cautiously before acting on unconfirmed evidence...": see R. v. McGrath, [2000] O.J. No. 5735 (S.C.J.).

General Assessment of the Witness V.W.

[56] The witness spoke in a forthright and often candid manner (she volunteered her difficulties in high school with self-mutilation and running away from home). She did not appear to have animus for the defendant other than the one instance when she described a discussion with him about her vaginal bleeding.

[57] I find that her powers of recall and her ability to remember details to be very good. I find that while there were some inconsistencies in her statement to the police and her evidence in court, none of them were major. She made an error about which grades she was between when the World Cup happened, but she always tied the ending of the incidents to the World Cup and not to which grades she was in between. I also note that she probably had more knowledge of the rest of the defendant's home that she originally spoke about. I note that even with this inconsistency, she did not attempt to skirt around it. She did not at any time give long or elaborate answers to any questions. She was always responsive to the questions. I have dealt with the issue of status of the defendant's penis (the Crown agreed he was uncircumcised). I do not place upon a 10 to 13 year old girl the same knowledge of genital physiology that one could normally ascribe to mature adults.

[58] She mentioned in her evidence that when she was communicating with the defendant on MSN and if her mother came into her room, she would put "smiley faces" on the screen. She did not mention this detail to the police. In the circumstances, I do not find this a significant discrepancy. There were some three years of various dealings with the defendant. To have included all details of every aspect of the relationship in that interview would have been unusual and I do not find this nor the fact she did not mention the bracelets as very significant.

[59] The defence points out the evidence of the complainant when she says that she was fearful of being pregnant and even got a pregnancy test kit to test it. She then continued to have unprotected sex for a long time. The defence asserts that this is unrealistic. If the complainant was a mature adult, I would agree with the defendant. That a child (and a teenager) would take risks with unprotected sex and the consequences does not surprise me in the least. The fact that the complainant did not become pregnant is perhaps the subject of medical evidence which I do not have and there is no need to speculate. She did not become pregnant. That neither proves nor disproves the allegations.

[60] Even when one looks at her evidence through the lens of a memory of her childhood, her recall of detail is very good. I find that her statement to the Crown and police in the month before the trial was not a contradiction of her evidence in court and in her statement to the police in December, 2013. The notes of Officer Fraud (Exhibit 10) contain some information taken from the complainant which is contradictory. The notes contain a reference to getting "kids to do sexual stuff" which was not part of her testimony, unless of course the "truth or dare" could be classified as such. The length of the abuse "for 2 years" is clearly not her evidence in court. However, the statement does contain many things which she gave in evidence including the call she got from him, and some details of her version of the call. Ultimately, while I do accept the officer's notes as her testimony, it is not by any stretch a verbatim account of what the conversation was. It is obviously the officer's summary. I take note and give more weight to any inconsistencies (and consistencies) between the fully videotaped statement given to the police very soon thereafter as an accurate statement from her, as to what, if anything transpired between her and the defendant.

[61] I specifically find that several aspects of her evidence (some very important) have been confirmed by the witness A.B.. I find the fact that V.W. knew her name was something that probably could only have come from the defendant. I also note the ring with the inscription on the inside. That, in my opinion, is a crucial piece of confirmation. I have already rejected the defendant's hypothesis that the defendant could have seen and read the inscription from him leaving it on the hydro box at some time.

[62] The telephone call with the defendant in June, 2012 is also an important consideration. I find her version of the call to be compelling. It is most consistent with the actions of the complainant and the defendant in the months following the call. The complainant did not, in fact, go to the police until a year and a half later. The defendant did not inquire further, as if he was satisfied with the response he received from the complainant.

[63] A potential stumbling block to accepting the complainant's evidence is the fact that she refused to come forth to the police for such a long time. I am prepared to accept that for the largest part of the sexual encounters with the defendant, the complainant was a child. While she may have physically grown into a young woman, she was still living in the emotional world of a child. She gave no real explanation for her failure to go to the police sometime before 2013 except for the fact of her difficult teenage years. In my opinion, she very well could have carried the scars of this abuse through her teenage and young adult years. The fact that she was a difficult teen, running away from home, cutting herself and using drugs to excess speaks of a young woman perhaps recovering from this dreadful situation. In that sense, I do not accede to the defendant's assertion that her difficult teen years somehow impacts negatively upon her credibility.

[64] This is not a case of a woman who has put it from her mind and only realizes suddenly later in life that she has been abused. She was living this realization through these teen years and it provides a reasonable explanation as to why she refused to go to the police. Ultimately, while the delay gives me some pause, it does not, in the circumstances of this case, lead me into doubt about the veracity of the testimony she had given before this court.

[65] While the foregoing indicates that I believe her evidence to be credible, the defendant has pointed out a salient fact and that for the literally hundred or so times that this girl went to the defendant's home and spent upwards of an hour to an hour and a half in his basement, there is no indication by her in her evidence that anyone chanced upon them or caused them to fear for discovery. In R. v. Gostick, [1999] O.J. No. 2357 (ONCA), the court chided the trial judge for not addressing the improbability of a teacher assaulting children in a classroom full of students, when the trial judge dealt with it by saying it was "imprudent, impractical and dangerous, but…not impossible."

[66] I believe there is a significant difference here in that both the complainant and defendant would have attempted to keep this matter a secret. These meetings happened when no parent was at home. The complainant referred to the defendant as calling her his "secret" girlfriend. The fact that they were not discovered is not fatal to the credibility of the complainant. The parties communicated in secret mainly through MSN. The complainant left by the back door in the basement and came up to the street through a copse of nearby trees. Perhaps she was seen by someone, (perhaps not) and the fact that no neighbour has come forward does not affect my assessment.

[67] The defence states that her sister A.W. was totally unaware of this and indeed does not confirm that the defendant would sometimes be in his open garage or driveway when they came home. I find that does not give a further doubt. I note that A.W. stated that she stayed at home and did not go out on the street the way her sister V.W. did. The defendant, in his evidence, said that he did not see A.W. at all. She also stated that when she got home from school, she made herself something to eat and sometimes watched TV or went to her room. She did not speak of any great interaction with her sister after school. She did not appear to be in any supervisory capacity. That she did not notice the defendant in his drive is something I take into account. Unlike V.W., there was no significance to her that he was in his drive, and that is also something that I take into account.

Conclusion

[68] As stated by Schwarzl, J. in R. v. Barber [2015] O.J. No. 1363:

63 Resolution of credibility controversies is the daily fare of trial judges. Assessment of credibility is a difficult and delicate subject, often defying precise and complete verbalization. At bottom, belief of one witness and disbelief of another, in general or on a specific issue, is an alloy of factors, not a purely intellectual exercise. The unique position of trial judges to see and hear witnesses, and the inestimable advantage they enjoy in the result in assessing witnesses' credibility and the reliability of their evidence, cannot be squandered by unrealistic expectations of scientific precision in language used to describe the complex coalescence of impressions that effuse after watching and listening to witnesses and attempting to reconcile their renditions of critical events.

[69] I believe I have reviewed and discussed the important aspects of the evidence in the body of this judgment. I am aware that the burden upon the Crown to prove a case beyond a reasonable doubt is a real and heavy burden and cannot be easily overcome, especially when this is a "she said, he said" case of some historical vintage. I am also very aware that even though I have rejected the defendant's evidence, I must assess the Crown's evidence with a very critical eye. I am aware that there are several discrepancies in the complainant's evidence. I have found the bulk of them to be of no great significance but I still must ask myself whether cumulatively, they lead me into doubt or cause me to feel that it would be "unsafe" to convict in the face of these discrepancies. After a real consideration, I find that the following elements of corroboration outweigh these discrepancies, either singly or cumulatively:

(a) The defendant had a real and significant knowledge of the basement of the defendant's home and especially the existence of a water bed in the spare room;

(b) Her recitation of the telephone call with the defendant on June 6, 2012 is much more likely, and indeed the actions of the parties after the call (for one and a half years) confirms the version she describes;

(c) Her knowledge of the defendant's school schedule and more importantly her knowledge of when his parents would be home. Couple this with her own parent's late work habits and any lack of supervision (in either home), provides credence to her statement as to when these meetings occurred and their frequency;

(d) Her knowledge of the ring and the inscription on the inside of the ring, and the fact it was a gift from his girlfriend A.B. It is so unlikely that the complainant could have gotten this information from anyone else other than the defendant leads me to have absolutely no doubt that the defendant and the complainant were in frequent contact on a very personal level.

[70] Having overcome any reasonable doubt based upon the discrepancies in her evidence and finding that her evidence of the sexual meetings with the defendant in the manner that she describes is consistent with the evidence that I do accept, I find that the Crown has proven beyond a reasonable doubt that between September 13, 2005 and June 30, 2006, the defendant committed a series of sexual assaults upon the complainant which included touching, invitation to touching, oral sex, and sexual intercourse.

[71] I therefore find the defendant guilty on all of the charges.

Signed: "Justice P.N. Bourque"

Released: August 4, 2016