WARNING

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

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

486.4 Order restricting publication — sexual offences.

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

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

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

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

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

(2) Mandatory order on application.

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

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

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

486.6 Offence.

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

Court Information

Court File No.: Kenora 143300

Date: 2016-11-03

Ontario Court of Justice

Between:

Her Majesty the Queen

• and –

R.D.

Before: Justice Sarah Cleghorn

Heard on: September 22 and 23, 2016

Reasons for Judgment Released on: November 3, 2016

Counsel:

Mr. Josh McKay ……………………………………… for the Crown

Mr. Aaron Seib ……………………………………… for the Accused

CLEGHORN J.:

Introduction

[1] It is alleged that the defendant, R.D., sexually assaulted A.P. on December 17, 2014. The Crown elected to prosecute the charge summarily and the matter was tried before me.

[2] In the early evening of December 16, 2014, the defendant attended a Christmas concert at his daughter's school. He and his wife extended an invitation to family friends to return to their home after the school event. Given that the couple that joined them (M.P., his daughter, and H.G.) resided some distance away it was pre-arranged that they would be spending the night. Shortly after the arrival at the defendant's home all the children went to sleep for the night. The adults socialized and consumed moderate levels of alcohol until the early morning hours of December 17th.

[3] The defendant's home is situated on family property. It is a large property with three family homes situated on it that are built in close proximity to one another. The two other homes are those of the defendant's parents and his sister. The distance between the complainant's home and the defendant's is approximately 60 to 80 yards. The evidence established that it would take about one-minute to walk between the two homes.

[4] The defendant's sister, C.D., was in a common law relationship with C.P. in December of 2014. A.P. is the daughter of C.P. At the time of the alleged offence C.P. and C.D. were away on a holiday in Las Vegas. A.P., who was 17 years old at the time, was staying at home alone during this timeframe.

[5] A.P. alleges that early on the morning of December 17, 2014 she was lying in bed when she heard someone in the house. She testified to next seeing the defendant standing at her bedroom door. (A.P. knows the defendant well, and identity is not it issue in this case.) According to A.P., the defendant asked for a cigarette. After A.P. gave the defendant a cigarette she asked him if he had any marihuana as she was having difficulty falling asleep. The defendant told A.P. that he had some at home and indicated he would return with it.

[6] A.P. testified that upon his return she and the defendant smoked both marihuana and cigarettes on the outside porch of her residence. After they finished smoking, A.P. testified that the defendant left and she went to back to bed and fell asleep.

[7] According to A.P., she woke again when she felt someone touching both her breast and her vagina. She testified that the defendant was the person she saw in her bedroom who was touching her. According to the complainant, as soon as she realized what was happening she pushed the defendant away, told him to stop and also told him to leave the house.

[8] The defendant testified in his own defence. On his account, upon returning to his home following the Christmas concert, the adults socialized, which included him having approximately three cocktails. After his wife and H.G. went to bed around 1:00 a.m., he stayed up with M.P. The defendant testified that he went to bed around 3:30 a.m. Although he woke once in the early morning hours to attend to the woodstove, he maintained that he never left the property of his home other than to step outside to smoke some cigarettes. The defendant steadfastly denied ever visiting the complainant's residence on the morning in question for any purpose. More specifically, he denied going to the residence to borrow a cigarette or to smoke marihuana. And, even more importantly, he absolutely denied ever groping the complainant as she alleged.

[9] At the commencement of the trial, filed on consent, was a D.N.A. report that concluded the defendant's D.N.A. was found on both an Export A and Du Maurier brand cigarettes located just outside the home of the complainant by the police.

The Evidence at Trial

i) A.P.

[10] On Monday December 15, 2014, A.P. locked herself out of the house. She ventured over to the home of the defendant's parents to see if they had a spare key. A.P. encountered the defendant who then assisted her with locating a spare key (this involved the defendant calling C.P.) and gaining entry into the home. During the entire interaction that included the defendant attending at A.P.'s residence, A.P. testified that neither one of them smoked cigarettes at any point in time.

[11] On December 16 (Tuesday) she went to bed around 9:30 p.m. to 10:00 p.m. Around 2:30 a.m. A.P. was awake in her bedroom when she heard someone in the house. The person identified himself or herself as, "R". A.P. testified that she was not concerned when she heard someone in the house; she did not think it was an intruder.

[12] She was not initially concerned that the defendant was in her home as he immediately asked her for a cigarette. A brief conversation followed that resulted in the defendant returning to his home to retrieve marihuana for the two of them to smoke.

[13] As the two went outside to the porch to smoke both marihuana and cigarettes, A.P. was in the course of turning on the porch light when the defendant stopped her. A.P. gave evidence about the defendant's explanation for not wanting her to turn the porch light on, she testified:

When we went outside I went to turn the outside light on and he told me to turn it off and I had asked him why. And he said, "So they don't know I'm here." And I said, "They who?" And he said he was, had some friends at his house and they were drinking… Or sorry, he said they were all passed out.

[14] In addition to smoking marihuana, the defendant smoked some of A.P.'s Export A cigarettes. She saw him "flick" some of the smoked cigarettes onto her driveway.

[15] To the best of A.P.'s recollection the defendant was at her home for 20 to 25 minutes. He then returned to his house. Around 4:00 a.m. A.P. went back to her bed and fell asleep.

[16] She testified to waking up again when she felt the defendant touching her left breast and her vagina. She was not wearing any clothes at the time. She immediately responded by asking the defendant what he was doing and telling him to stop. In response, she testified that the defendant said, "it was okay".

[17] A.P. testified that she pushed the defendant by his shoulder and told him he had to leave. According to her, he replied: "Just five minutes" and asked that she "Just let him do it." A.P. testified that she then forcefully pushed the defendant back against the wall and told him again that he had to leave. The defendant finally acquiesced to this request. As the defendant left her home, A.P. testified that she looked at her phone and noted that it was 5:38 a.m. A.P. testified that she then watched the defendant from her bedroom window as he walked back to his house. She then locked the door, returned to her room and cried for the remainder of the early morning hours.

[18] Neither the complainant's father nor C.D. are smokers. Prior to leaving her home the next morning, in a rush, A.P. testified that she collected three cigarette butts that the defendant had flicked onto the driveway and threw them underneath the steps to the porch as she did not want to get into trouble with her father or his girlfriend (subsequently these cigarettes butts were collected by the police for D.N.A. testing and included both Export A and Du Maurier cigarettes). When A.P. smoked at the house she testified that she always used an ashtray as her father and C.D. did not want cigarette butts scattered around on the ground.

[19] On her way to school the next day, A.P. testified that she told a friend what happened the preceding evening, and explained that her friend encouraged her to tell the friend's mother. This resulted in a call to A.P.'s father in Las Vegas. As a result of that phone call, A.P. stayed away from the home until her father returned from his trip.

[20] On December 18th, 2014, A.P. also called a former neighbour, J.A. who is an O.P.P. officer; she explained that she did not know whom else to call. J.A. told A.P. that she should attend the police detachment and report what had taken place.

ii. R.D.

[21] In December of 2014 the defendant was living on the family property in his own home with his wife, S.D. and his stepchild. His sister, C.D. and his parents also had homes within a very close proximately to one another.

[22] Although the defendant describes having a close relationship with his sister, he testified to the fact that he did not get along particularly well with the complainant's father, C.P. As a result he never attended at their home when C.P. was present. Generally he would spend time with his sister at their parents' home.

[23] According to the defendant, he would attend regularly at the complainant's home when C.P. was out, in order to plough the snow and to deal with general maintenance issues. He acknowledged being aware of the fact that his sister and C.P. had a planned vacation. It was his belief that no one would be staying at the home during their absence. It was only when A.P. locked herself out of the home and he assisted her with gaining entry that he become aware that she was in fact at the home. Other than attending to the home to assist A.P. when she locked herself out, the defendant did not suggest that he had otherwise been in attendance at the complainant's home in the preceding days, for example, in order to plough the snow.

[24] The defendant describes himself as a heavy smoker, smoking a pack and half a day to two packs a day. His brand is Du Maurier. He testified that he only smokes when he is outside on the family property and when he is done his cigarettes he discards the butts wherever he happens to be. He testified that he was smoking when he assisted C.P. when she locked herself out of the home. Given that he essentially lights up a cigarette whenever he is outdoors and then flicks his cigarettes butts anywhere on the family property without restriction, it is not surprising to him that cigarettes that he had smoked would be on the his sister's property.

[25] On December 16th, 2014, after attending a school Christmas concert, the defendant, his wife, and two friends returned to his home. Around 1:00 a.m. his wife, S.D., went to bed. The defendant briefly went to the bedroom with his wife but hearing that his friend was still awake he decided to join him for a few more drinks. The defendant testified that he went to bed around 3:30 a.m. He heard the furnace sometime between the hours of 4:00 a.m. and 4:30 a.m. as the family burns woods for it's primary heating source. After attending to the furnace he fell asleep briefly on the couch. When he awoke he noticed H.G. asleep on the couch. He returned to the bedroom where his wife was still asleep. He recalls that he next left the bedroom around 5:45 a.m.

[26] The defendant denied that he ever left his home other than to step outside to smoke cigarettes on the evening of December 16th, or the morning of the 17th. He denied ever leaving the home to attend at the complainant's residence on the morning of the 17th for any purpose. He absolutely denied sexually assaulting the complainant as she alleged.

iii) H.G.

[27] The Crown called H.G. She was in a dating relationship with M.P. at the time of the alleged offence although they subsequently parted ways. She was present at the defendant's home on the evening in question and also spent the night.

[28] On her account, they arrived at the defendant's home at around 9 p.m. After the children were asleep the adults continued to drink but she did not recall anyone drinking to the point of intoxication. She went to bed around 1 a.m., approximately half an hour to an hour after the defendant's wife. Her partner's snoring woke her up and she then decided to go sleep on the couch, where she found the defendant asleep.

[29] The defendant's wife woke her around 5 a.m. as M.P.'s child was crying from an ear infection and S.D. thought she was M.P. At 5 a.m. the defendant was no longer on the couch. H.G. next saw the defendant when he emerged from either the bathroom or the bedroom, to her recollection, "closer to six".

iv. M.P.

[30] M.P. was also a witness at trial. He recalled the children going to sleep in the room with the bunk beds. H.G. went to sleep in the spare room. He stayed up with the defendant until sometime between 3:00 a.m. and 3:30 a.m. He woke up around 5:00 a.m. when S.D. called out for him; he noticed that H.G. was no longer asleep in the bed with him. He got up and found S.D. in the room with the child. H.G. was still on the couch.

[31] To his recollection he may have seen the defendant around 5:15 a.m. but he believes the defendant joined the others in the kitchen/living room area closer to 6:30 a.m. M.P. also gave a statement to the police. In his statement he said that he thought he woke up shortly after 5:00 a.m. In court, he testified it was shortly before 5:00 a.m. In his statement to the police (that he agrees was provided a day after the alleged incident) he said that he remembered speaking to the defendant around 5:30 a.m. M.P. conceded that his memory was better at the time of making the statement rather than when he testified at trial.

v. S.D.

[32] The wife of the defendant, S.D., testified. She and the defendant are now separated. To her recollection, on the night in question everyone returned to the family residence at around 9:00 p.m. Around 1:00 a.m. all of the adults went to bed. She went to her bedroom, set her alarm and fell asleep. She believed the defendant turned in for the night at around the same time.

[33] S.D. woke up around 5:00 a.m. when she heard M.P.'s child crying. She testified that at that time that the defendant was asleep in their bed. She believed she woke up around 5:00 a.m. and that she had set her alarm for 5:30 a.m. When she heard the child crying she looked at her clock to see how much time she had left to sleep.

[34] According to S.D., M.P.'s child was sleeping in the spare room. When she heard the child crying she got up, retrieved the child, and took the child to where she thought M.P. was. She disagreed with H.G. that she brought the child to the living room; she testified that H.G. was incorrect on this point.

[35] S.D. gave a statement to the police (the date of when the statement was taken was not elicited at the trial). She told the police that the defendant never left the bed after 1:00 a.m. She acknowledged in court that her statement to the police was incorrect.

Analysis

[36] As noted, the defendant testified in this case. With respect to the allegations that are the subject matter of the charge, he categorically denies the allegations levelled against him by A.P. As a result, an assessment of the credibility of both the defendant and the complainant is essential to deciding this case. I therefore intend to follow the analytical framework set down by Supreme Court of Canada in its seminal decision of R. v. W.(D.).[1]

[37] Turning to the evidence of the defendant, if I believe him, then I must obviously find him not guilty. Further, even if I do not accept his evidence, I still must consider if it leaves me with a reasonable doubt. If it does, then I must of course find him not guilty. Finally, even if I reject the defendant's evidence and it does not leave me with a reasonable doubt, I must still consider whether or not on the whole of the evidence that I do accept the Crown has proven the charge against the defendant beyond a reasonable doubt. This process ensures that the burden of proof never (inadvertently) shifts from the Crown to the defendant. Ultimately, any finding of guilt must be prefaced solely upon the Crown successfully discharging its burden of proof beyond a reasonable doubt.

[38] I will therefore begin my analysis by considering the defendant's evidence.

[39] Having watched and listened to the defendant as he testified and, even more importantly, having considered the substance of his evidence, I do not believe him. I will briefly outline the principal reasons why I have rejected his evidence.

[40] First, the defendant testified as to how his D.N.A came to be found on cigarette butts located just outside the complainant's home. He gave evidence that he is responsible for shoveling the driveway of her residence. He testified that because he is a heavy smoker, he would have discarded his cigarette butts while clearing the snow. I do not believe the defendant's evidence on this point. Both the complainant and the defendant's wife each testified to the same effect; that the defendant did not shovel the driveway connected to the complainant's home. At best, he would sometimes use the plough to clear the driveway when there was a heavy snowfall. More importantly, in his initial statement to the police the defendant was adamant that because of an ongoing conflict with the complainant's family, as a rule, he did not attend at their home during this period.

[41] The defendant's explanation for the cigarette butts was also internally inconsistent. He testified that he was rarely at the complainant's home as a result of family conflict. Then, at other points during his evidence, he insisted that he was at the home every second day for general maintenance. It was also his evidence that he is such a heavy smoker that he will smoke any brand available to him and that he discards his cigarettes all over the shared property. If this were true, then one would think that the area around the complainant's home would be riddled with the defendant's discarded cigarettes. This, however, was not apparently the case. The police only located three cigarette butts lying outside the complainant's home. More importantly, even if I were to accept that he was allowed to throw his butts wherever he saw fit this does not provide an explanation for how the defendant's D.N.A. was found on cigarette butt corresponding with the brand of cigarettes smoked by the complainant.

[42] In summary, I do not believe the defendant's explanation for why cigarette butts with his D.N.A. were located in the immediate vicinity of the complainant's home.

[43] Further, on the defendant's account, on the evening of December 16, after the Christmas concert, everyone returned to his residence around 8:30 p.m. to 9:00 p.m. The children were put to bed shortly thereafter. His wife and H.G. went to bed around 1:00 a.m.; he stayed up with M.P. until 3:30 a.m. Between 4:00 a.m. and 4:30 a.m. he was awakened by the furnace and went out into the living room to deal with the fire. He noted that H.G. was sleeping on the couch. The defendant claimed that he then fell asleep on the couch for a short period of time but eventually returned to his bedroom. He next emerged in the living room around 5:45 a.m.

[44] There are a number of material inconsistencies between the defendant's evidence regarding the chronology of the events as compared to what he told the police when he was interviewed on December 18, 2014. For example:

• In his statement to police the defendant indicated that he slept the entire night with his wife in their bed. He testified, however, that he spent at least a portion of the evening sleeping in the living room.

• In his statement to the police the defendant denied going to A.P's house when she locked herself out, maintaining that he simply gave her the spare key. In contrast, he testified that he did in fact attend at the home.

• In his statement to the police[2] the defendant stated, "So I don't go over there at all, like at all." He stated he had not been to his sister's home in the preceding 4 months. In stark contrast, during his in court testimony he insisted that he attended the complainant's home on a regular basis for general maintenance when C.P. was away.

[45] In the end, the combined effect of the difficulties with the defendant's evidence regarding the presence of the cigarette butts in the vicinity of the complainant's home and the material inconsistencies between what he told police as compared to his in court testimony, is such that I do not believe his testimony. For essentially the same reasons, his evidence does not leave me with a reasonable doubt. As a result, I must next turn to the totality of the remaining evidence to assess whether or not the Crown has met the burden of proving that the defendant is guilty of sexual assault beyond a reasonable doubt.

[46] Based on the testimony of the defendant's wife, if I were to accept her evidence, it would provide him with an alibi. In short, on S.D.'s account, the defendant could not have committed the offence, as he would have been at home, sleeping next to her in their bedroom at the relevant time.

[47] In the end, after carefully considering her evidence I am unable to credit the testimony of S.D. Not only does she have a motive to lie to protect her family, her evidence is materially different from what she told police closer to the event. I therefore do not believe her. Further, for essentially the same reasons, her alibi evidence does not leave me with a reasonable doubt.

[48] I instead accept the evidence of H.G. that the child was initially brought to her in the living room. I also prefer her evidence, and that of M.P., to that of S.D., regarding the fact that the children were asleep in the children's bedroom and not the spare room.

[49] Given a number of material inconsistencies between the testimonies of each of the witnesses who was present in the home, it is apparent that no one was paying especially close attention to time on the evening and morning in question. Further, their evidence was also impacted by the simple reality that the events in question would have seemed routine and unimportant at the time. Finally, there is also the undoubted impact of the passage of time on their respective memories. By way of summary, however, it is worth noting where and when each witness remembered seeing the defendant on the morning in question:

• S.D. last saw the defendant at 1:00 a.m. when she went to sleep for the night and then next saw him again at 5:00 a.m.;

• M.P. last saw the defendant between the hours of 3:00 a.m. to 3:30 a.m. when he went to sleep for the night and then next saw him between the hours of 5:15 a.m. and 5:30 a.m.;

• H.G. last saw the defendant sometime in the middle of the night when she moved to the couch (she guessed that this may have been between 3:00 a.m. and 4:00 a.m.) and then next saw him between the hours of 5:30 a.m. and 6:00 a.m.

[50] Despite the various timelines provided by the witnesses there is, at a minimum, about one hour of time when no one can account for the defendant's whereabouts; between 4:00 a.m. and 5:00 a.m. Further, as noted, each of the witnesses was far from confident regarding where and when they saw the defendant. In the end, given these gaps, the evidence of these various witnesses simply does not serve to raise a reasonable doubt in this case. In short, I am satisfied beyond a reasonable doubt that the defendant would have had the opportunity to leave his residence and commit the offence charged. This conclusion therefore brings me to the evidence of the complainant.

[51] There were some inconsistencies in A.P.'s evidence that provide reason for pause. For example, in her initial statement to the police, given two days after the events alleged, she said the defendant only smoked "one" cigarette. In fact three cigarettes were collected by the police and analysed for D.N.A. However, I ultimately consider this inconsistency of no great moment. According to A.P., while the defendant was over the first time she went in and out of her house in order to pack marihuana. It is entirely possible that the defendant chose to smoke further cigarettes in her absence. Counsel for the defendant submits that A.P. has altered her evidence as a result of the D.N.A evidence and the number of cigarettes seized by the police. I do not accept this argument. A.P. was 17 years of age at the time of the alleged event. There is no apparent motive to lie on her part. More importantly, I accept her testimony that cigarette butts were not thrown randomly on her property. She collected what she could observe in the morning from the events that had occurred only hours earlier.

[52] It was less than clear what door might have been locked 2 days earlier. Despite the inconsistencies in A.P.'s account, the defendant testified that he in fact assisted her with gaining entry into the home. I am satisfied that a door was locked, the defendant was involved in locating the spare key and attended at the home of A.P. to do so. Importantly, this would have provided the defendant with the knowledge that A.P. was home alone on the morning in question.

[53] Of significance is that A.P.'s evidence was clear and consistent on the core aspects of the allegations she made against the defendant.

[54] Defence counsel argues that the cigarettes could have been present for up to 5 days prior to the alleged incident. The evidence at trial does not support that submission. A.P. was clear that she observed the defendant discard at least one cigarette during the early morning hours of December 17th, 2014. Further, she was clear that the adults in the household disapprove of individual's discarding cigarettes around their property. As a result, A.P. was able to quite easily locate the cigarette butts in the daylight. S.D. testified that the defendant only attended at the home to plough back the snow banks. There was no evidence to suggest that there was any ploughing of the snow in the five-day period preceding the morning in question. Lastly, the defendant's D.N.A. was found on the brand of cigarettes that A.P. smokes. Given that the defendant has testified that he was never at the home on the day in question nor was there any evidence to support the notion that he had asked A.P. for a cigarette on the day when he assisted her in gaining entry into the home, there is simply no logical conclusion to draw other than that the defendant was smoking one of A.P.'s cigarettes on the morning of December 17, 2014, as she claimed in her testimony.

[55] In summary, the defendant was aware that A.P. was alone in the home. A.P. was aware that the defendant was hosting friends at his home as a result of the defendant informing her of this very fact when he directed her not to turn on the outdoor lights. None of the witnesses gave evidence that they saw the defendant between the hours of 4:00 a.m. and 5:00 a.m. It will be recalled that A.P. testified that the defendant was at her home until 4:00 a.m. smoking marihuana and cigarettes. Although there are differing accounts of times, in terms of when the complainant claimed the sexual assault occurred versus the varying accounts of where and when the various witnesses saw the defendant on the morning in question, it is understandable that the exact timing from 5:00 a.m. onwards may be impacted by time that has passed and the fact that the chronology and timing of these events would have held little significance for most of the witnesses who testified before me, with the exception of A.P.

[56] In the end, having watched and listened to A.P. as she testified, and having carefully examined the substance of her evidence, especially given its fit with all of the other evidence that I accept (i.e. the D.N.A. evidence regarding the cigarette butts, her knowledge of the defendant's house guests on the morning in question), and her lack of any apparent motive to lie, I ultimately believe her. Further, neither the defendant's evidence nor any of the other evidence leaves me in a state of reasonable doubt. In short, I am sure that on the morning in question the defendant sexually assaulted A.P. as she claims. I therefore find him guilty of the charge before the court.

Released: November 3, 2016

Signed: "Justice Sarah Cleghorn"

Footnotes

[1] R. v. W.(D.), [1991] 1 S.C.R. 742

[2] The transcript of the police interview with R.D., conducted on December 18, 2014, was filed on consent. The defence conceded the voluntariness of this statement.