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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

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

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

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

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

Court Information

Ontario Court of Justice

Date: 2017-06-16

Court File No.: Region of Durham 998 16 36816

Between:

Her Majesty the Queen

— AND —

K.G.M.

Before: Justice J. De Filippis

Heard on: April 19 & May 15, 2017

Reasons for Judgment released on: June 16, 2017

Counsel:

• Ms. J. O'Connor — counsel for the Crown
• Mr. P. Affleck — counsel for the defendant

De Filippis J.:

Introduction

[1] The defendant was tried on an Information alleging two counts; namely, sexual assault and sexual interference with a person under the age of 16 years. Both offences involve the same complainant and are said to have occurred in Central East Region between July 1 and September 28, 2016.

[2] At the relevant time, the defendant was living with the complainant's mother and her younger brother in a small apartment. The complainant was 12 years old and the defendant was 39 years old. The complainant claims that the defendant repeatedly came to her after she had gone to bed and touched her inappropriately, including on the thigh and breast. If proven true, these acts establish the offences in question.

[3] I heard from the complainant and the defendant. I find the defendant guilty. These are my reasons.

Prosecution Evidence

[4] Pursuant to section 715.1 of the Criminal Code, a video record of the complainant's statement to police was received as evidence. That statement begins with the request by the officer to, "take me back to whatever you think is important". The complainant's response includes the following:

…it started like in July…he started like coming in my room……he would sit on the ottoman, and he'd talk to me. He's like…I'm attracted to you…then he's also like touched my thighs, and then like my chest and my arms and my face. And he would constantly do that. And I would pretend like I was sleeping, and I would try to no – not hear what he said. And he'd do it like every-other night, every – like every day, every-other night….…my mom…She'd be at work, or she'd be sleeping……he would never be loud. Like he would try and make it really quiet. And like he would mumble lots, like a lot. So, I'd never actually catch on to what he was saying always…And then he would walk away after a while. He would go my – into like my mom's room, and like – cuz she made a room out of the living room…

And then one time during school…when I was getting dressed in my room sometimes, he would walk in, and he'd be like oops. And – and he'd pretend like nothing happened. And then he'd always go to the bathroom with the door open, like always. And then I have to quickly turn around. And then um, school came, and he's waking me up one morning. And he was really close to kissing me. And then he said um, oops, I thought you were somebody else. And then I – I just walked away…

And I got up, like then I walked away to go to the bathroom. And then he walked in – in on me so many times. I'd quickly cover myself. Um, and then one day, I had – I was sleeping on the couch cuz there was bugs underneath my bed. And they're like – I had them in my house…And then like the first night I slept on the couch nothing really happened. And then one night I was up till like 12:00 a.m. doing homework cuz I had art, and it was the weekend…So, like I finished, and I went to bed watching the laptop. And then K.G.M. um, he started – like my mom was sleeping. She went to bed. And then um, he started touching my thigh, like high up on my thigh. Um, he's like … I'm attracted to you, I'm only here for you…then he would say other things, but I never really caught on to what he was saying…And then what happened was he would walk away…

And then I'd forget about it in the morning. Well, I thought about it like but I kept second guessing it. And then like it happened again a few other nights. It happened like twice more. It feels like it's real now, like I know for sure. And like it was constantly the same thing, because different things sometimes like he touched me. And the very last night, it was like – it's like on the Tuesday or a Wednesday, and then uh, it was during school. And it was night. My mom just went to work. She went to work like eleven like the same one. I didn't really know what time she was coming back…I was like sleeping. And then he woke me up…He's like there was a bug on you, there was a bug on you, sorry. And then – and then I fell back to sleep cuz there was no bug on me. Like I didn't feel a bug on me.

And like he – he was like – and he kept touching me. And then he – he was like……I'm really here for you um …cuz your mom doesn't uh, have like intercourse with him, and whatever. I don't like using that word. I just don't like using that word. And he would get mad that she wouldn't have it with him, anymore…he'd tell me that while he's rubbing my thigh or my face.…

And then I would ignore him. Like I would ignore it. And then he's like I've got to touch you one more time. And he touched my – my – my boob. And then um, so then he left. And then um, I jolted up. And he's like I've got to ask you a question, I've got to ask you a question. And I was like, no, I'm sleeping, I have school tomorrow. Then he's like never mind, and he walked away, and he put this naked video on. And I turned away…I was waiting for my mom to come home……I stayed on the couch. I fell asleep. And yeah, and then I told my mom the next morning.

[5] After this narrative, the interview assumed a question and answer format, including the following:

OFFICER: Okay. So, when he was rubbing your leg, where was he rubbing your leg?

COMPLAINANT: Up – my upper thigh.

O: And was that on top on your shorts, or on your skin?

C: On my skin.

O: On your skin? And what was he using? His?

C: Hand….And then he also had his other hand down his pants.

O: Down his pants, his other hand? Okay. And do you know what he was doing? Could you see, or could you tell?

C: No, I – no.

O: Mmm-hmm. And when he was touching you on your chest area, was it – so, when I - and I just wanted to clarify. So, when I say chest uh, you know, some people think – we, as women, have breasts. Right? …..And we have a chest area up here kind of where it's flat, and then your breast area. Can you kind of decipher for me where?

C: On my breast area.

O: …was it over top of your shirt or under your shirt?

C: Over top.

C: And then also my real chest area, like right here.

O: …and then what else do you remember from that time?

C: Uh, I just remember him like touching me. And he got mad at me, I think. I don't know for what he got mad at me for. He was talking in a really mean voice that time.

C: Like a really mean voice. And he's like but I've got to touch you. And he's like nod your head yes if you want me to keep doing this to you, if you want me to keep waking you up, talking to me, touching… And I didn't answer….And then he's like never mind, but he'd like a few more seconds, like my breast my breast.

O: Yeah. Again, over your shirt or under your shirt.

C: Over top…And then he went and turned on this like naked-people-dancing-twerking songs. I didn't even – I'd never heard of…Then I waited for my mom to get home….And he's like uh, I'm attracted to you, I'm here for you now, I'm not here for your mom, she doesn't have intercourse with me, anymore. Well, he didn't use the word, intercourse, though.

O: Did he say sex? Okay.

C: Yeah. And then he just like – I don't know the word. Like something-off isn't working anymore. Like…..

O: Jerk – jerking off?

C: Yeah.

O: So, he said that to you? He said jerking off isn't working, '''' anymore?

C: And my mom – he said that in front of my mom, too, one day. Like I was waking up for school, and he said that in front of my mom, too. And she like – I have already told my mom about this, now…And she's just like uh, watch your mouth, there's children around. And she got mad at him.

O: So, you described the first time that you remember, in July, for me. And you did a very good job of that. Then you described the last time that you remember, the last time that it happened.

C: Mmm-hmm.

O: Um, why was that the last time it happened? Why do you think?

C: Cuz that – that's that other night I told my mom.

O: Very good. So, in between that first time in July and the last time on the Tuesday or the Wednesday before you told your mom, how often would you say this was happening?

C: Yeah, it would happen like every-other day, or….

[6] In trial testimony, the complainant confirmed that what she told the police in the prior statement is true. She noted that she and her brother occupied the only two bedrooms in the apartment. The defendant and her mother slept in the living room, with the furniture moved in such a way as to provide a small measure of privacy. When the complainant went to bed at night she closed the door to her bedroom and had a nightlight on.

[7] The complainant said that the defendant had not said "intercourse" and that she had used that word in her statement to police because she "didn't want to use other word". She added that during the incidents, "I kept my eyes kinda of open and kinda shut so he would not know I was watching".

[8] The complainant never confronted the defendant about the activities she described. She told her mother after she became "uncomfortable with it all". She testified that following this, she slept with her mother for two or three nights and then went to her grandmother's home for the weekend. On her return home, she learned that the defendant had moved out.

[9] The complainant rejected the suggestion that her mother worked the overnight shift (at Tim Horton's) only once; she said her mother worked nights on weekends and sometimes during the week. She conceded that soon after the defendant moved into the apartment she declined his gesture to hug her and said she does not like to hug people.

[10] The complainant testified that she understood what the interviewing officer meant by "jerking off" because she had heard the expression at school. Moreover, she overheard the defendant say that in arguing with her mother. She agreed that they often argued about sex and how the children were being raised. The complainant said she would retreat to her bedroom during these arguments.

[11] The complainant explained that in telling the officer about bugs in her bed, she referred to a cockroach problem. She also conceded that if she had shouted out during the incidents in question, that her mother would have heard from her bed in the living room. The complainant rejected the accusation that she had fabricated the allegations at the request of her mother.

Defence Evidence

[12] The defendant testified that he moved in with the complainant's mother in late December 2015. At this time, the family income consisted of her "baby bonus cheques" and his government disability payments (ODSP) in the amount of $1,064.00 per month. He said that he paid the rent and the complainant's mother paid the utilities. In June 2016, the complainant's mother began to work part-time at Tim Horton's. He said she worked only one night shift, in September. He recalls it specifically because he moved out of the residence soon after.

[13] The defendant denied going to the complainant's bedroom at night and touching her in any way. He insisted that he did not tell her that "jacking off isn't working anymore" and that he was not having enough sex with her mother. However, he conceded that he said these things to the complainant's mother. In this regard, he said they often argued "within earshot of kids" as the apartment was small. In addition to sex, the parties argued about the raising of children, the messiness of the apartment, the time of dinner, and occasionally, money. The defendant noted that he threatened to leave on many occasions and sometimes packed his bag as part of threat. Notwithstanding this, the he was "fully committed to the relationship", including with the children, and tried his best to make it work. The defendant testified that over time the parties resolved most issues – except for the matter of "intimacy". He became "fed up with this and left". He added that the complainant's mother had previously warned him that if he left her, she would ruin his life.

[14] The defendant does not dispute that the complainant's mother worked the overnight shift on Wednesday, September 28, 2016 and that the next night the complainant slept with her mother and him on the couch in the living room. He accepted the suggestion that he was watching music videos featuring scantily clad women. He also agreed that on September 30, the complainant and her brother went to their grandmother's home for the weekend and that he moved out of the residence on Monday, October 3. He did not see the children again. The defendant went to Cornerstone, a men's shelter in Oshawa. He did so even though he had just paid rent on the apartment for the month of October.

[15] The defendant denied the suggestion that he moved into Cornerstone because the complainant's mother confronted him about going into her daughter's room at night. The defendant reiterated that he had been thinking of leaving for some time and added that he called the shelter in advance of moving out to ensure there was a bed for him. He testified that the first time he learned about these allegations is when he was arrested.

[16] The defendant said he left because "the relationship was not working and it was time to move on". He explained that did so without saying goodbye to the children because he did not have opportunity. He denied this lack of opportunity arose because the complainant's mother demanded that he leave. When pressed on why he paid rent for October if he knew he would be leaving, he said that "I promised I wouldn't leave her in a lurch….so I paid the rent and left". The defendant added that he and the complainant's mother agreed he would "pay the rent and go to a shelter".

[17] According to the defendant, the complainant's mother tried to dissuade him from leaving by promising to change her ways; she wanted to try and "work things out". He rejected this plea because he had heard such promises in the past. The defendant testified that the complainant's mother eventually accepted his decision. When asked why, if his departure was planned and consensual, he did not discuss it with the children and say goodbye, he answered, "I was a little selfish and wanted out of this relationship as soon as possible – although we discussed this on many occasions, it was that weekend when we decided it was time for me to go and the kids just happened not to be there".

[18] The defendant has a criminal record. This is of some relevance for the limited purpose of assessing credibility. One of the offences is for sexual assault. The additional relevance of this conviction is that it requires him to report a change of address and the reason for his failure to do so when he moved to Cornerstone became an issue at this trial. I appreciate that this conviction is not relevant for any other purpose, especially propensity reasoning.

[19] The defendant is required to report his change of address within seven days of moving. He did not do so on moving to Cornerstone. When questioned about this, he said, "I was confused about whether I had to report change to permanent address or homeless shelter…it was an oversight on my part". He added that he was going to report on the day he got arrested, this being the seventh day. When it was pointed out that he was arrested on October 11, eight days later, he said, that he had other things on his mind, was at a homeless shelter, and that it "slipped my mind, I didn't know what I was going to do, it was an error on my part, not done out of malice, in past I have always reported".

Analysis

[20] The Crown must prove its case beyond a reasonable doubt if the defendant is to be found guilty. This means that if the defendant has called evidence, there must be an acquittal: (i) where the testimony is believed, (ii) where the testimony is not believed, but leaves the trier of fact in reasonable doubt, (iii) where testimony is not believed and does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty: R v W.D. (1991), 63 C.C.C. (3d) 397 (S.C.C.).

[21] The Defence submits that I should accept the defendant's evidence. In this regard, he added that, given the "cramped quarters" and proximity of the complainant's mother, his denial of misconduct is believable. Counsel argues that the only reason to reject the defendant's evidence is that it conflicts with the complainant's testimony. The Defence concedes she "is credible and that she was not shaken on cross-examination". However, the charges must be dismissed because there is no independent evidence to enhance the value of the complainant's testimony such that it can be said that on all the evidence, the Crown has proven guilt beyond a reasonable doubt.

[22] The Crown submits that the complainant and defendant agree on several important points; the sleeping arrangements in the apartment, the subject matter of the arguments between the complainant's mother and defendant, that the complainant began sleeping with her mother in late September and that the defendant left soon after without speaking to the children again. Counsel argues that there is ample justification to accept the testimony of the complainant and reject that of the defendant.

[23] The primary debate between the parties is how to apply the criminal law standard of proof in a case in which there is little or no evidence beyond the testimony of a defendant and complainant. In R v Woollam 2012 ONSC 2188, Justice Durno, sitting on appeal of my colleague, Justice Duncan, had this to say:

51 The trial judge believed J.P.'s evidence and was satisfied beyond a reasonable doubt of the appellant's guilt when her evidence was viewed with the other bases in the context of all the evidence. That the trial judge concluded there was nothing in the appellant's evidence when viewed in isolation that would cause him to reject it, does not mean His Honour found the appellant's evidence believable. As the trial judge noted, evidence is not viewed in isolation or piecemeal.

52 W.(D.), does not mandate an examination of the evidence favouring the defence in isolation from the rest of the evidence. In assessing Crown or defence witnesses, the trier of fact must consider their evidence in the context of all of the evidence, including whether it was internally consistent, whether it was consistent with other evidence called, the witness' demeanour and whether their evidence accords with logic, common sense and human experience. 1 That is what His Honour did.

53 At its highest, a reference to an accused's evidence being credible "when viewed in isolation" addresses whether his or her evidence was internally consistent, his or her demeanour when testifying, and whether, ignoring the other evidence, it accords with logic, common sense and human experience. It does not address inconsistencies with other testimony, other evidence or whether it accords with logic, common sense and human experience when viewed in the context of all the evidence.

A further appeal to the Court of Appeal to Ontario was dismissed: R v Woollam 2013 ONCA 711

[24] The Court of Appeal recently revisited this issue in R v Martin 2017 ONCA 322:

18 As this court held in J.J.R.D., at para. 53: "(a)n outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence." The ultimate question is not, on this analysis, whether the complainant's evidence is accepted as credible, but whether the allegations are proved beyond a reasonable doubt.

19 In J.J.R.D., although the trial judge found the complainant to be credible, the analysis had to go further. It was only after considering all the evidence that the trial judge accepted, including the complainant's evidence and "the credibility enhancing effect" of the complainant's diary, that the trial judge was satisfied of the accused's guilt beyond a reasonable doubt, despite the accused's denials. It was sufficient, in that case, for the trial judge to set out that the basis of his rejection of the accused's evidence was his reasoned acceptance beyond a reasonable doubt of the truth of the complainant's evidence. This reasoned acceptance of the complainant's evidence was not merely a matter of finding the complainant to be credible. Despite finding the complainant to be credible, the trial judge was only able to conclude that the accused was guilty beyond a reasonable doubt for some of the offences for which he was tried and not others.

20 As in J.J.R.D., the question before the trial judge in this case was not simply whether the complainant was credible, but whether the trial judge was left with a reasonable doubt of the guilt of the accused. It was open to her, as it was to the trial judge in J.J.R.D., to explain her rejection of the appellant's evidence in terms of her reasoned acceptance of the evidence to the contrary.

[25] I understand the principles enunciated in the aforementioned cases to mean that a conviction can be based upon a bare rejection of a defendant's testimony, if accompanied by a considered and reasoned acceptance of a complainant's testimony. That is, a judge is entitled to reject the defendant's testimony because the complainant's evidence (or other evidence) establishes guilt beyond a reasonable doubt. This must be explained in details that reflect the length and complexity of the case at hand. However, to simply reject the defence evidence and accept that of the prosecution is to commit error by finding guilt based on a decision about which side is more believable. I conclude that in a case in which there is little or no evidence beyond that of a defendant and complainant, the mistake of merely determining a credibility contest will be avoided if it is recognized that credibility assessments need not be divorced from the context of the case, specific reasons are be given for credibility assessments, and these reasons are framed by and tied to the standard of proof beyond a reasonable doubt.

[26] The Defence concession that the complainant is credible is a fair one.

[27] The complainant presented as an intelligent young girl. In age appropriate language she provided a plain, clear, and consistent account of what transpired over several weeks. It is persuasive. The incidents are framed by other significant events in her life; they started when she began camp and they had "water balloon fights" and stopped after she told her mother about them (and the defendant left the residence). Her awareness of what was happening is also convincing. She did not report the matter right away, but after she thought about it. At first she believed she might be dreaming. Later, as she pretended to be asleep, she understood that the experience was real. Eventually, her discomfort caused her to tell her mother.

[28] In presenting her account of the incidents the complainant did not embellish. For example, she made it clear that the defendant touched her breast area over top of her clothes. She was also an attentive witness. When Defence counsel suggested "there should be more structure in the family", the complainant replied, "I don't know what that means". Moreover, in some respects, the defendant confirmed some aspects of her testimony, including the sleeping arrangements, subject matter of the arguments in the apartment, and that he watched videos of scantily clad women.

[29] Recognizing that the Defence need not prove motive, the fact remains that no motive to fabricate has been shown. There is no merit to the suggestion that the complainant did so at the urging of her mother and because the latter did not want the defendant to leave. The complainant denied this. Moreover, although the defendant asserted it, he later stated that his departure was accepted by the complainant's mother.

[30] As already noted, the complainant's evidence was not undermined in cross-examination. In this regard, it includes her testimony that the inappropriate touching happened while her mother worked or was asleep and that the defendant never spoke loudly. Accordingly, I am not troubled by the fact that on occasion, the complainant's mother was not far away.

[31] I have no doubt the complainant provided a truthful and accurate report of what happened to her.

[32] I cannot say the same with respect to the defendant's testimony. Indeed, I reject it with respect to the issues in dispute. I come to this same conclusion whether it is considered in context or in isolation. Apart from some evasive and conflicting testimony, such as, why he failed to report his change of address to police, my finding relates primarily to the defendant's account of why, and how, he left the residence.

[33] The defendant and complainant agree on the timeline with respect to his departure. On Wednesday, September 28, the complainant's mother worked a night shift. After this night the complainant began to sleep with her mother. On the weekend, she and her brother went to stay with their grandmother. On Monday, the defendant left.

[34] The defendant left without saying goodbye to children he professed to be committed to. He did so, having just paid the rent from his modest income. He went to a men's shelter and failed to report his change of address to the police. It is obvious he left in a hurry. His sudden departure is contemporaneous with the complainant's disclosure of the abuse to her mother and just before she reported it to the police. It is this context that informs his actions and it amounts to compelling evidence of guilt.

[35] The defendant's account of his departure is also internally inconsistent. It was not a planned event. If, as he testified, the decision had been arrived at after due consideration and discussion with the complainant's mother, he could have waited until the receipt of his next ODSP payment and looked for a place to live other than a shelter. When asked why he did this, the defendant explained that he "did not want to leave the family in a lurch". This does not answer the question; he could have paid the rent, making if clear he would leave at the end of the month, and taken that time to look for proper accommodation. A leisurely departure would surely mean that reporting a change of address to the police would not have 'slipped his mind'. Most important, a planned and mutually agreeable exit, based on a decision that the relationship had to end would have afforded him the opportunity to provide a suitable explanation to the children and say goodbye to them. When confronted with the latter, the defendant testified that he was "being selfish". This selfishness is in contrast to his professed generosity in paying the month's rent to ensure the family was not "left in a lurch". These inconsistencies convince me he was not truthful.

Conclusion

[36] The Crown has met its burden of proof. The defendant is guilty as charged.

Released: June 16, 2017

Signed: "Justice De Filippis"