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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
Date: May 12, 2017
Court File No.: Brampton 16-11441
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— and —
R.G.
Before the Court
Justice Paul F. Monahan
Counsel
S. Stackhouse — counsel for the Crown
A. Abbey — counsel for the defendant R.G.
Hearing and Decision
Heard: April 12 and 13, 2017
Reasons for Judgment released on: May 12, 2017
MONAHAN J.:
INTRODUCTION
[1] The defendant, R.G., is charged with two counts of sexual assault as follows:
(i) He is alleged to have sexually assaulted T.M. on or between June 20 and June 30, 2016; and
(ii) He is alleged to have sexually assaulted T.M. on or about August 4, 2016.
[2] The Crown proceeded summarily on both charges. The trial was heard on April 12 and 13, 2017. The Crown called two witnesses: T.M. and her friend, H.S.
[3] The defence called four witnesses: the defendant, R.G., and his spouse, T.V., and two of their children, T.R. (age 19) and K.R. (age 14).
[4] Each charge must be considered separately to determine if the Crown has proved either of the two charges beyond a reasonable doubt. The Crown submits that both charges have been proved beyond a reasonable doubt. The defendant denies that there was any sexual touching of T.M. and submits that neither charge has been proved beyond a reasonable doubt.
[5] I will examine each count separately and review some of the key aspects of the evidence in connection with each of the charges. Before doing so, I will set out some of the applicable legal principles.
LAW
The Law with Respect to Credibility
[6] The Supreme Court of Canada has determined the legal framework to be applied when determining credibility cases such as this one. In R v. W. (D.), [1991] 1 S.C.R. 742 at para. 28, the Supreme Court of Canada said that trial judges and juries should use a three-step process as follows:
(1) First, if you believe the accused, you must acquit;
(2) Second, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit; and
(3) Third, even if you are not left with a reasonable doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt of the guilt of the accused.
[7] In applying the foregoing framework, it is important to recognize the following further points:
(a) The criminal justice system stands on at least two critical pillars. The first is the presumption of innocence. The second is that the burden of proving all of the elements of the offence beyond a reasonable doubt remains on the Crown throughout. There is no onus on the accused to prove anything and the burden of proof never shifts to the accused: R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152 at paras. 9.
(b) The assessment of credibility will not always lend itself to the adoption of the three distinct steps suggested in W.D. In a judge alone case, the Court doesn't need to consider the evidence in any particular order such as the evidence of the defendant first and then the rest of the evidence: see R. v. Minuskin (2003), 68 O.R. (3d) 577. The key point which must be followed is that the trial judge must decide whether the Crown has proved the guilt of the accused beyond a reasonable doubt: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at para. 23.
(c) Reasonable doubt may survive a finding that a complainant is credible: R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.) at para. 47 leave to appeal to S.C.C. dismissed, [2007] S.C.C.A. No. 69. See also, R. v. J.W. 2014 ONCA 322 at para. 26 where the same point is made. A similar, but slightly different point, as concerns reasonable doubt surviving a reliable witness, flows from the comments of the Ontario Court of Appeal in R. v. Strong (2001), O.J. No. 1362 (C.A.) at para 5 where the Court said:
"The question is not simply whether the complainant's evidence was reliable, but rather, when considered in the context of the totality of the evidence whether it established guilt beyond a reasonable doubt."
(d) The second step of the W.D. analysis needs to be carefully considered. As Justice Binnie for a unanimous Supreme Court has pointed out, a trier of fact may wonder if they believe none of the evidence of the accused how could such evidence raise a reasonable doubt. Justice Binnie for the Court explained this issue as follows: (i) even if an accused is disbelieved in part, parts of his or her testimony may be accepted and raise a reasonable doubt; or (ii) the trier of fact may simply conclude that they don't know whether to believe the accused's testimony or not. In this circumstance, the accused is entitled to an acquittal: R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152 at paras. 11.
(e) Even if the accused is entirely disbelieved and the trier of fact is not left in a reasonable doubt by the evidence of the accused (or other conflicting evidence), in order for there to be a finding of guilt the trier of fact must still be persuaded beyond a reasonable doubt by the evidence that is accepted that the accused is guilty.
(f) The Court is not to treat the assessment of the evidence as a credibility contest by simply preferring the evidence of the Crown's witnesses over the defence's witnesses: R v. Hull, [2006] O.J. No. 3177 at para. 5. However, the Court is not prohibited from assessing the accused's testimony in light of the evidence as a whole including the complainant's testimony. Indeed, no witness is entitled to have their evidence considered in isolation. In applying the W.D. framework, a Court can reject the evidence of an accused based on a considered and reasoned acceptance of a complainant's testimony. However, this can only be done where an accused's evidence is given a full and fair consideration and the evidence as a whole establishes guilt beyond a reasonable doubt: R. v. JJRD (2006), 215 C.C.C. (3d) 252 at para. 53 and R. v. Jaura, [2006] O.J. 4157 at para. 20.
(g) Inconsistencies on minor matters or matters of detail are to be expected. If there is an inconsistency on a material matter about which an honest witness is unlikely to be mistaken, it can demonstrate a carelessness with the truth: R. v. M.G., [1994] O.J. No. 2086 (C.A.) at para. 27. The Court should consider the explanation for the inconsistency: R. v. M.(A.) (2014), 2014 ONCA 769, 123 O.R. (3d) 536 (C.A.) at para 26.
(h) The existence or absence of a motive by the complainant to fabricate is a relevant factor to be considered: The Queen v. K.G.B. (1993), 79 C.C.C. (3d) 257 (S.C.C.) at page 300; R v. M.W.M., [1998] O.J. No. 4847 (C.A.) at para 3. However, the defence does not have to prove a motive to lie by the complainant. Further, the absence of evidence of a motive to fabricate is not the same as an absence of a motive to fabricate: R. v. L.(L.) (2009) 2009 ONCA 413, 96 O.R. (3d) 412 (C.A.) at para. 44. The Court can consider a possible motive to lie by an accused person but if it does so, the Court must be careful not to ignore the presumption of innocence and assume that an accused person has a motive to lie simply to secure an acquittal: R. v. Murray (1997), 115 C.C.C. (3d) 225 (Ont. C.A.).
(i) The British Columbia Court of Appeal had this to say about the meaning of credibility: "[t]he opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he [or she] has seen and heard, as well as other factors, combine to produce what is called credibility." In that same case, the Court stated the demeanor of a witness may be considered when judging the credibility of a witness but that the "real test of the truth of the story of a witness… must be its harmony with the preponderance of probabilities which a practical and informed person would recognize as reasonable": Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) at paras. 10-11. Notwithstanding the reference in the previous passage to the "preponderance of probabilities", I repeat the point made above that in a criminal case it is a fundamental requirement that all of the elements of an offence must be proved by the Crown beyond a reasonable doubt.
(j) In assessing credibility, the court may also consider any exhibited partisanship or undue leanings of a witness towards one side or the other of a dispute: see Pitts and Director of Family Benefits Branch of the Ministry of Community and Social Services (1985), 51 O.R. (2d) 302 (H.C.J. Div. Ct.) at para 32.
The Meaning of Reasonable Doubt
[8] The Supreme Court has said the following about the meaning of reasonable doubt:
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt: R. v. Lifchus, [1997] 3 S.C.R. 320 at para. 39.
[9] The Supreme Court has said that proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities: R. v. Layton, 2009 SCC 36, [2009] 2 S.C.R 540 at paras. 27-29 and R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 at para. 242.
Prior Consistent Statements
[10] Generally speaking, prior consistent statements are not admissible: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272. However, there are exceptions to this rule and one of them is where the prior consistent statement is used to rebut an allegation of recent fabrication. In these circumstances, " credibility is necessarily impacted – in a positive way – where admission of prior consistent statements removes a motive for fabrication. Although it would clearly be flawed reasoning to conclude that removal of this motive leads to a conclusion that the witness is telling the truth, it is permissible for this factor to be taken into account as part of the larger assessment of credibility … [f]urther, while it would clearly be an error to conclude that because someone has been saying the same thing repeatedly their evidence is more likely to be correct, there is no error in finding that because there is no evidence that an individual has a motive to lie, their evidence is more likely to be honest" : see Stirling at para. 11.
[11] In some cases, prior consistent statements may be admissible as part of the narrative to, for example, explain how the allegations were initially disclosed. Where this occurs, prior consistent statements are not to be used to corroborate the complainant's story. However, the fact and timing of the complaint may assist the trier of fact in assessing the truthfulness or credibility of the complainant: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at paras. 36-37.
Issue No. 1: Has the Crown Proved Beyond a Reasonable Doubt that R.G. Sexually Assaulted T.M. on or Between June 20 and June 30, 2016?
(i) Overview of the Evidence
[12] I will give a brief overview of some of the evidence which I will expand upon in the analysis section below. T.M. testified that she rented a basement apartment from the defendant and his wife starting in or about March, 2014. She was 23 years old at the time of the trial. She explained, and it is common ground, that she lived in the basement apartment of the defendant's home with her boyfriend, D, and their two children. She was happy with the apartment and was paying somewhat less than market rent for it. Her children were approximately age 2 and age 1 in or about the June to August 2016 time period. It is also common ground that her older child, a daughter, was very ill from the time of her birth. T.M. testified that she was born with hydrocephalus and had bleeding in or from her brain. The child clearly had and has ongoing serious health issues.
[13] The defendant lived upstairs on two floors with his wife and his two sons, both of whom testified at the trial and a third child, a daughter, who was said to be around 25 years of age. In connection with the first incident, which T.M. said was near the end of June 2016, T.M. testified that she had had a fight with her boyfriend and was in the backyard crying and the defendant invited her in to his home on the main floor. She said that the defendant's older son was there at some point but then he left the house. Later, when she was leaving about 20 minutes after she arrived, she said the defendant hugged her and touched her breast and vagina with one of his hands on the outside of her clothing and told her that he loved her. She was upset and she froze. There was no issue at trial that she had not consented to any such touching. She then left and saw the defendant's wife (T.V.) in the driveway. T.M. was crying and T.V. asked her what was wrong and she told her that she had had a fight with her boyfriend.
[14] T.M. testified that she did not go to police at the time of the June incident because she was scared. She did not know what would happen. She said she thought she would have to move out and they were tight on money and this would be difficult.
[15] T.M. said she ultimately went to the police on or about August 30, 2016 and reported the alleged sexual assault from June and a further alleged sexual assault said to have taken place on or about August 4, 2016. She said she also disclosed the alleged sexual assaults to the defendant's wife in mid-August. She told the defendant's wife that this was why she was going to have to move out (with her family). Further, in a conversation on or about August 22, 2016, T.M. asked the defendant's wife if it would be possible to get the last month's rent back (the September rent). The defendant's wife told her that it had been given to the real estate agent who first helped lease the apartment. The defendant's wife said that she would look into the issue of the rent.
[16] T.M. also testified that it was her understanding that her mother-in-law had also asked the defendant's wife for the last month's rent and it was her mother-in-law who had originally suggested to T.M. that she should ask for it as well. The idea of getting the last month's rent back was that T.M. would not be there in September so the place could be rented out. She ended up moving out at the end of August and her boyfriend stayed until mid-September. The request by T.M. for the last month's rent came up in one conversation with the defendant's wife as mentioned above.
[17] Notwithstanding the numerous suggestions put to T.M. in cross-examination, there is no evidence that she ever threatened the defendant or his wife that she would go to the police if she did not get the last month's rent back. As indicated above, she spoke to the defendant's wife once and asked politely if they might get the last month's rent back. The defendant's wife largely confirmed the same point in her evidence.
[18] T.M. also testified that the same day that the first incident happened in June, she told her friend H.S. by text message. According to T.M., she told her that she had been sexually harassed.
[19] H.S. testified that she and T.M. had been best friends since early in their high school years. H.S. said that T.M. told her about this incident the day after it had happened in June. H.S. said that T.M. had told her that the defendant had touched "her boob" and tried to look down her top. H.S. said that she told her over the phone the day after it happened and also in person. There were no text messages introduced into evidence at trial. T.M. said that her phone broke in July sometime. H.S. also said that T.M.'s phone was broken. H.S. said that she herself deletes her text messages and "always gets new phones".
[20] H.S. also testified that T.M. told her about the first incident that the defendant's older son was there at some point. She said that he was there for some part of the hug but not for any sexual touching. He was not there the whole time based on what T.M. told H.S.
[21] The defendant, R.G., testified that he never touched T.M. sexually or otherwise. He agreed that he said that his older son was present when T.M. was in the home at the time of the alleged first incident. It is apparent from his testimony that R.G. is a hardworking man who holds down two jobs. He also said that he had had no trouble in the past with other women who had rented from him nor with any of the many women who he worked with at his two jobs.
[22] R.G. testified that as concerns the first alleged incident that he saw T.M. crying outside and invited her in his living area on the main floor as he felt sorry for her. He asked her if there was a problem and she said there were problems in her family. He said it happened on a Saturday. He said it was a rainy day and it was cold so he asked her to come in. He said that she came in with her wet rainy shoes which she did not remove. R.G. said that he was trying to console T.M. He said she stayed for about one half an hour and that his son was there "watching the conversation". He said that he could hear D in the downstairs apartment shouting at the children and that T.M. heard it too and she said she had to go. She then got up and left. There was no hug or any touching of any kind. He said that his older son was present the entire time of the first alleged incident.
[23] The defendant's 19 year old son, T.R., testified. He said he remembered the incident when T.M. was in the home and speaking to his father. He said it was on a Saturday in June 2016. He said that he had seen D or T.M. in his home on three prior occasions but that it remained unusual for T.M. to be there. He said he was present and came home at the same time that his father and T.M. were entering the home from the backyard. He said that he was there the entire time and that there was no touching of T.M. by his father.
[24] The defendant's wife, T.V., testified that on June 4, 2016 she went to a funeral. When she came home, T.M. was in the driveway crying and she said she had a problem with her boyfriend. T.V. told her to go take care of her child. T.V. went in the house and her husband and older son were there. She said that about six weeks after the driveway encounter, T.M. told her that she was moving out because the defendant had sexually assaulted her by touching her breast. She said there was also a request or inquiry by T.M. (either at this time or in a conversation after this one) as to whether they could get the last month's rent back to which T.V. replied that they had already paid it to real estate agent. According to T.V., in a separate conversation, the mother-in-law of T.M. also asked her about getting the last month's rent back to which T.V. said "we'll give it but we do not have the money with us. You can stay and then leave."
(ii) Analysis
[25] I have given a brief overview of some of the evidence with respect the first incident. This is obviously a credibility case to be determined in accordance with the W.(D) test and the other legal principles set out above.
[26] Let me turn to the defendant's evidence. In my view, his evidence on its face had some significant problems. I recognize that he testified through an interpreter which can be difficult as a witness has to rely on someone else to translate their words. I have allowed for this consideration in my review of his evidence. Still, it was clear to the Court that through much of his evidence that he wanted to provide an argument for his case rather than answering the questions he was asked in a straightforward manner. As an example, as concerns the alleged first incident, he added into his answers multiple times that his son was present so that it could not have happened. By way of example only, the following questions and answers were occurred in chief:
Q. Did you hug [T.M.] on the way out when she left through the front door?
A. No I did not, I did not even touch her and my son is there and how can I touch her when my son is there ?
Five questions later, he was asked as follows:
Q. We will get to the basement thing but I want to finish off the June incident. Did you try to touch [T.M.] on her breast when she was inside her home upstairs during the June visit?
A. No, how would I. How could I do that, my son is there . What do I – how can I do that with my 18-19 year old child in there ?
Q. Did you try to touch her vagina at all during this June incident?
A. My son is there. When my 19 year old child was there, how can I behave like that ? (emphasis added)
[27] The foregoing questions and answers led his counsel to ask the following question:
Q. If your son is not there, would you try to touch her breasts or try to touch her vagina?
A. No, I would not. I have a child as old as her and I would not do that.
[28] R.G. also testified in chief that the case against him was all lies and that T.M. was doing it "for the money". In cross, he had to admit that he had nothing to base this allegation on and that T.M. had not made any money on this proceeding. Again, his evidence on this point was more an unsupported argument rather than evidence.
[29] He was asked if he had said "I love you" to T.M., as she had to suggested he had said at the time of both sexual assaults to which he said "I don't know the language so how can I say that?" Later in cross-examination he acknowledged that he did know the meaning of the words "I love you" in English and that he could speak English just not with the proper grammar.
[30] Along the same vein as not answering the questions he was asked, he complained throughout his evidence that T.M. had left her wet shoes on when she came in the house at the time of the June incident and by and large this was not responsive to the questions he was asked.
[31] To summarize, I consider that much of R.G.'s evidence on its face was argumentative and I did not believe it.
[32] The evidence of the defendant's son, T.R., is obviously important to the alleged first incident. He said he was there the whole time that T.M. and his father were present in the home and that there was no touching of T.M. by his father.
[33] I found T.R.'s evidence (the son) to be far too detailed. He was not called upon to think to this day back in June 2016 until at least mid-August 2016 when T.M. told the defendant's wife of her allegations. Nevertheless, he seemed to have an almost perfect memory of the events, and all of it, on its face, assisted his father. The fact that his memory of the events assists his father cannot, by itself, undermine his evidence. However, I do not believe he could possibly remember the events with the detail he purported to recall including that he entered the home from the front door at precisely the same time his father entered from the back door with T.M.; that he saw every moment of the interaction and even recalled when he cleaned his dishes in relation to T.M. leaving. In this regard, he said that "I was watching her leave the house and then I got up to wash my plate". Further, he initially tried to suggest that he had not discussed this case with his father and then he admitted that he had. I note further that he was not asked to comment on whether his father had said I love you to T.M. and yet this appeared in his answer when he was asked the following:
Q. How many times in your life had you heard your father say I love you?
A. My father never says that… he's never said I love you to my mom, and he's never said I love you even on birthdays, like-and it's pretty normal to us like it's genuine love that he shares and cares about us so him saying I love you is just a big lie . (emphasis added)
[34] It is apparent from the above passage that T.R. (the son) was responding to something he had learned in terms of the disclosure in the case, namely that his father was alleged to have said I love you to T.M. It went beyond answering the question and attempted to argue the case on behalf of his father. It is clear to me that he had discussed his evidence carefully in advance with this other family members. There is no prohibition against doing so but to try to initially suggest to the Court that the position was otherwise undermines his evidence apart from the other concerns I have about his evidence and the degree of detail he purported to recall.
[35] It is understandable that a son would want to help his father. Overall, I found his evidence, in content and in substance, to be scripted and not in accordance with how a person would usually recall events. I do not believe that he actually recalled the events with the level of detail he said he did including his statement that he was there the whole time.
[36] Let me comment on T.M.'s evidence. She gave her evidence in a coherent, logical and fair manner. She was more than prepared to acknowledge negative things about herself and her boyfriend. For example, she acknowledged that he had been ordered out of a previous tenancy by the Landlord and Tenant Tribunal due to a friend using drugs in her apartment; and she acknowledged many fights, including physical ones, with her boyfriend. She also willingly acknowledged mistakes in her evidence, for example when she said the lease had been signed in March 2014 when it was apparently signed in March 2015.
[37] The defence obviously has no obligation to prove a motive to lie on the part of the complainant. Having said that, the defence can allege a motive to lie and the Court should consider any possible motive to lie in any event. Further, the Court should be aware that simply because there is no evidence of a motive to lie, that does not mean there is no motive to lie.
[38] It is common ground that there really was no relationship, other than a simple landlord and tenant relationship, between the defendant and the complainant. The evidence was that there was no animus between them and there had been no disagreements or arguments between them in the past. The fact is that they had little to do with one another.
[39] Defence counsel suggested to T.M. multiple times in cross-examination that she had threatened to go to police if she did not get the last month's rent back (i.e. the rent paid for the month of September), an assertion which she variously denied or said she could not recall. When all of the evidence in the trial was heard by the Court, there was not one word of it to support the suggestion put to her in cross-examination that she had threatened to go to police if she did not get the last month's rent back. As it turned out, the evidence on this subject was that T.M. once asked, or inquired of, the defendant's wife as to possibility of getting the last month's rent back as she would be leaving the apartment for the month of September. It was not in any way connected to a threat to go to the police or not to go. According to T.M., she said the defendant's wife said she would have to ask the real estate agent and that she would look into it. The defendant's wife testified to a similar conversation in which she told T.M. that the last month's rent had been paid to the real estate agent.
[40] The mother-in-law of T.M. also once raised the question of the last month's rent with the defendant's wife. The mother-in-law asked T.V. about getting the last month's rent back to which T.V. says she said "we'll give it but we do not have the money with us. You can stay and then leave." This appears to be an issue with translation as T.V. also testified with the assistance of an interpreter. It appears to the Court that she was not promising the mother-in-law that they would give the last month's rent back. She was simply saying that T.M. could stay in the apartment for the last month and then leave and that T.V. did not have the rent money herself. It was with the real estate agent.
[41] That was the essence of all of the evidence of discussions between T.M. and her mother-in-law on the one hand and the defendant's wife on the other hand, as concerns the last month's rent (i.e. the September 2016 rent). It is clear to the Court that these two conversations about the last month's rent were routine. There was no evidence of any threat to go the police if the rent was not returned or otherwise.
[42] The defence argued in closing submissions that the allegations to the police were only made on August 30, 2016 by which time T.M. knew she was not getting her money back and when further rent would have been due. T.M. agreed that she knew by the time she went to police she was not getting the last month's rent back. The defence says this is suspicious timing and that T.M. did get money out of making the allegations in this case, because she only ended up giving 30 days' notice instead of 60 days. The last month of rent paid was September 2016. T.M. acknowledged at trial that she thought she had to give 60 days' notice but she was never asked if that meant to her that she needed to pay rent until the end of October or some earlier date if the place was rented out for example. Her evidence was that she thought she had to pay rent until the end of September and she was never challenged on this point. The lease had expired and the tenancy was month to month. No law was put before the court that the notice required in those circumstances actually is 60 days but the Court will proceed to assess the issue on that basis.
[43] As indicated, T.M. testified that she did not owe further money as of the end of September and she did think she was owed money by the defendant or his family. There is no evidence of any discussion about 60 days' notice and a further month's rent owing beyond the last month's rent (or rent owing for a further two weeks until mid-October). None of the defendant, his wife or T.M. raised it before or after T.M. went to the police and neither the defendant nor his wife suggested at trial that they were owed money by T.M. There is also no evidence as to whether the defendant was able to rent the basement out to someone else in October or not, nor was there any argument on what impact that might or might not have on any 60 day notice requirement. The only discussion about rent between the various persons involved at the time was whether T.M. could get the last month's rent back. The question of any rent beyond that was simply a non-issue in the evidence at trial.
[44] One of the reasons that T.M. said she did not go to the police right away after the first and second incident was because she was scared which is an understandable explanation in my view. The Crown submits, and the Court agrees, that T.M. had much to lose if she were to make up a story of sexual assault and proceed with the allegations. She had a clean and spacious apartment at less than market rent. She is not a wealthy person. She receives money from Ontario Works. She has two young children, including one who has been very ill from birth. It is clear to the Court that she did not want to move if she did not have to. She said she was not comfortable living in the apartment in light of the two incidents with the defendant she testified to. She knew that if she was going to make allegations of sexual assault against her landlord, the practical reality was that going forward with those allegations would necessarily require her and her family to leave which is precisely what happened.
[45] The Crown also seeks to answer the defence's suggestion that the complainant was motivated to make up a story for money by pointing to the disclosure to H.S. Both counsel acknowledged that the alleged disclosure to H.S. was admissible in the context of the defence's allegation of recent fabrication, alleged to have occurred when she went to the police at the end of August. In the Court's view, it is somewhat problematic that T.M. says she sent a text message to H.S. and yet no text messages were produced. T.M. said her phone broke and could not find any text message as a result. H.S. said they spoke by phone and if there was a text message, she must have deleted the message. Notwithstanding that it would have been helpful to have text messages recording the discussions produced for the Court, I am satisfied that T.M. did tell H.S. about the first incident and the second incident at about the time she says they both happened. I found both T.M. and H.S. to be credible on this point.
[46] While the defence did not argue this point, there was a potential inconsistency in T.M.'s evidence on the question of money which should be addressed. As mentioned above, T.M. said she did not go to police after the first incident because she was scared, she did not know what would happen and they were "tight" on money and she thought they would have to move and this would be difficult. It was suggested to her in cross that she went to police at the end of August and made these allegations up out of a motive to get the last month's rent back to which she said, in part, she could not have "cared less for the money" and, under further questioning, that $850 was "not really" that much money to her. I have considered the potential inconsistency between this evidence and her earlier evidence that they were "tight" on money and her general circumstances. Ultimately, I have determined that it is not a concern when the full context of the questions and answers on this subject are considered. T.M. was not disputing that moving would cost her money and that she did not have a lot of money and that was one of the reasons (together with being scared) that she did not go to police after the first incident. She did fairly acknowledge that it was a concern for her to leave the apartment as she would need to come up with $2,000 which would be the likely first and last month's rent for a new apartment. She was also not really disputing that $850 was a lot of money – she said "it is and it isn't". Further, the could not have "cared less for the money" statement was made at the same time she said "I just wanted to make the report because I knew what happened".
[47] I will set out my conclusions on the question of motive. I am satisfied that T.M. had no motive to lie. She was not motivated by money and she had much to lose by making up a story and going to the police in that to her it meant she would necessarily have to move out of an apartment she was otherwise happy with and that is precisely what happened (i.e. she moved out). She would have to move her young family including her ill daughter and find a new place and this would not be easy for her practically or financially. She neither sought nor received any benefit by proceeding with the allegations forming the subject matter of this proceeding. The two discussions about the last month's rent were routine. The question of whether she gave 45 days' notice (from mid-August to the end of September) or 60 days' notice (from mid-August to mid-October) or whether the apartment could be rented out for October was a non-issue and did not form any material part of the evidence as trial. Further, as I have indicated above, she told her friend H.S. about the first and second incident right after they allegedly happened and this neutralizes any suggestion that she had made a "recent fabrication" to get money at the end of August when she went to the police.
[48] As concerns incident number one, in my view the most significant point that must be considered in T.M.'s evidence is whether the defendant's older son (T.R.) was present when the defendant allegedly sexually assaulted her during the first incident (the June incident).
[49] T.M. testified in-chief and initially in cross that the older son was there for the first part of the visit with the defendant in June but that he went out and was not there when the alleged sexual touching occurred as part of a hug the defendant gave her as she left. She was clear that the son did not see the sexual assault. As she said in-chief, "he wouldn't approach me if his son was still home". However, in cross-examination, part of her DVD statement to police was put to her as an allegedly prior inconsistent statement. The words put to her come approximately 55.30 minutes into the DVD after which she clearly has already told the police what happened during incident number one. The question and answer put to her from the DVD police statement as an alleged prior inconsistent statement was as follows:
Q. So the kid that you mentioned the first time he was there did he hug in front of you?
A. Yes
[50] As will be seen from the question above, the question is grammatically incorrect and nonsensical. Nevertheless, there was no objection from the Crown when it was put to T.M. in cross-examination. Notwithstanding that there was no objection from the Crown, the Court initially intervened and asked that the statement be replayed and it was and the Court ultimately permitted the cross to continue on this point. Thereafter, when it was put to her she effectively acknowledged by virtue of the above statement that she had told the police that the son had witnessed the hug by the defendant and by inference, the alleged sexual assault but that she had said at trial in chief that the son was not there to see the hug and the sexual assault.
[51] In re-examination, she was asked to explain the contradiction and she said "seeing the video and remembering what I can remember, I feel like he was there but at the same time with my memory, I can't remember if he actually was there 100%".
[52] It is my view that the question and answer from the DVD was unintentionally put to the witness in an unfair manner. On reflection, the Court should not have permitted the question to be put to the witness the way that it was, notwithstanding that there was no objection from the Crown. The statement, on its face, was not inconsistent; it was nonsensical and incomplete. Further, the one sentence put to her at trial could not possibly be a fair summary of what she had said to the police on the subject of whether the son witnessed the hug and the alleged related sexual assault or not. The substance of what she said or did not say to the police about the son being there or not being there in connection with the first incident should have been put to her; not one nonsensical sentence 55 minutes into the video. T.M. was not a sophisticated witness. I believe she ultimately became confused by the brief snippet played to her from the police video. I wish to be clear that none of this occurred as a result of some intentional conduct by defence counsel.
[53] The result of the questioning described above led to the witness saying that she had told police that the son had witnessed the sexual assault but at trial had said in chief that he had not. There was thus an apparent inconsistency. I wish to be clear that I am not satisfied that she in fact told the police that the son had witnessed the hug and the sexual assault alleged to have happened in June. I doubt it.
[54] Let me conclude my analysis of the evidence and my finding on incident number one in June as follows. I have concluded as follows: T.M. has no motive to lie. She was a credible witness. R.G. was evasive and argumentative in his evidence and I do not believe his evidence. The evidence of his son T.R. came across as rehearsed and I did not believe it.
[55] As I have explained in the law section above, reasonable doubt can (although it will not always) survive a credible complainant. Further, if a court is only able to conclude that a defendant is probably guilty, then the Crown has not met its onus and an acquittal must be entered.
[56] By virtue of T.M.'s own evidence on whether the son was present or not, she is questioning the reliability of her own memory on the first incident. She said that R.G. would not have approached her sexually in front of the son and yet in re-examination she said "remembering what I can remember, I feel like he was there". I think that she has very likely simply confused herself. I consider that the defendant probably did sexually assault her in the last 10 days in June 2016, but given the state of the evidence on the first incident and the high standard that must be applied to the Crown's case, I have a reasonable doubt about it arising only out of the apparent inconsistency in T.M.'s own evidence as to whether the older son was there or not. I wish to be clear that I must say that in my view, the Crown has come very close to proving the first count beyond a reasonable doubt but that it has not quite done so. Accordingly, in the circumstances there will be an acquittal on the first charge of sexual assault. I wish to emphasize that it is not because T.M. is not credible or because I believe R.G. or his older son; for the reasons stated, I do not believe the evidence of either of them on the first incident. Nevertheless, the beyond a reasonable doubt standard is a high one and it has not been met in connection with incident number one and the first charge.
Issue No. 2: Has the Crown Proved Beyond a Reasonable Doubt that R.G. Sexually Assaulted T.M. on About August 4, 2016?
(i) Overview of the Evidence
[57] As I did with the first issue, I will give a brief overview of some of the evidence which I will expand upon in the analysis section below. Some of the evidence reviewed and analysed above as concerns the first incident also applies to the second incident, including the discussions about the rent, the analysis on motive and the discussions between H.S. and T.M.
[58] T.M. testified that the second incident happened on August 4, 2016. She remembered that it was that day because her daughter was not feeling well and the next day (August 5) she had to take her daughter to Sick Kids hospital in Toronto, where she and her daughter stayed for about a week.
[59] T.M. testified that on August 4th there was a problem with the furnace. She said that she had spoken to the defendant and said "did your son tell you about the furnace?" The defendant said no and then he went downstairs to the basement apartment of T.M. to check the furnace. Downstairs in the apartment at that time were the defendant, T.M.'s boyfriend and her father-in-law. Her boyfriend left to go to work and her father-in-law left as well. Thereafter, T.M. was in the backyard having a cigarette and she heard a noise in the apartment and realized the defendant was still in the furnace room in her apartment. Her oldest child was sleeping in her bedroom in the downstairs apartment. It is not clear from the evidence where her younger child was. T.M. then came back in the house and she said she was in the living room of the basement apartment picking up toys. She said that the defendant approached her and hugged her and he asked about D and where he was. She told the defendant that D was at work. The defendant put his hand on her breast (outside of her clothing) and tried to put one of her hands on his crotch. He tried to pull her shirt forward. He was whispering and he told her that he loved her and he told her not to tell anyone. She said to the defendant that he had a wife and three kids and she had D and two kids and that she could not do this. He held her and shuffled her against the wall to see if anybody was coming down the stairs. She thought he was trying to take her into the bedroom downstairs. She ultimately was able to back away and detach from him. To be clear, she said she never consented to any of the touching by the defendant and the defence did not suggest otherwise.
[60] T.M. said she told her friend H.S. about what had happened in connection with the second incident shortly after it happened. She told her she had been sexually assaulted by the defendant. The method of communication (phone or text or in person) was not indicated. T.M. also testified that after the first incident and before going to police, she also told her Children's Aid Society worker, D and her mother-in-law.
[61] H.S. testified that T.M. told her about the second incident the same day or the day after it allegedly happened. She told H.S. that it was more "physical" than the first incident. She said she thought they spoke by phone but said there may have been text messages between them as well. For the same reasons outlined above, she did not have any text messages on the subject any longer although T.M. had asked her to check after she went to the police.
[62] R.G. denied any sexual touching or any touching of T.M. in connection with the second incident. He stated as well that he was a person of good character who had never had any similar allegations made against him in the past. He said that T.M. called him in August and said the furnace was not working. His evidence was that he called an electrician and that the electrician came on or about August 3 and determined that a part was needed for the furnace. He said that the electrician returned on August 4 and fixed the furnace with the new part.
[63] While his evidence-in-chief appeared to suggest that the defendant went down on August 3 to clean up some water, in cross-examination he made it clear that he did not go down on August 3; that he only went down on August 4 after the electrician had done his work. On August 3, he was busy upstairs cutting meat to prepare for cooking.
[64] The defendant said that he went down to clean the water up in the furnace room. He said that there was a lot of water in the furnace room and that it was like a "swimming pool". He said there was a blocked drain due to "cat poop". According to the defendant, "all of the hardwood, everything was ruined".
[65] He said that T.M. had let him into the apartment. He made no mention of her boyfriend D. He said that the father-in-law was there but left.
[66] The defendant said that when he went downstairs his youngest son came with him and his wife as well. He said that his son and wife were afraid of the cats in the basement and so they stayed on the stairs. He said his son came down to one of the lower steps and was receiving towels from the mother/wife and the young man was handing them to his father for the father to use to clean up the water. The defendant said that his wife and son could see him the entire time when he was in the furnace room and that he could see them.
[67] He was asked why his wife and son were watching him and he said "If anything happens, I need to have some proof." He then explained further that they were there in case he got electrocuted or something went wrong.
[68] The defendant's other son, K.R., also testified. He was 14 years old at the time of his testimony and 13 at the time of the events.
[69] K.R. testified about the second incident although it was incorrectly said to have occurred in June 2016. He said his father told him to let the electrician in the apartment in the basement. The son knocked on the basement door and T.M. answered it and she let the electrician and the boy in. He took the electrician downstairs and the son sat on the steps near the furnace room door. The son said he was scared of the cats and so he stayed on the steps.
[70] According to the son, the electrician identified the problem. He said the first visit lasted 10 to 15 minutes. The boy said that his father was busy cooking upstairs and did not come downstairs.
[71] The next day the electrician returned according to K.P. The defendant was at work. K.R. knocked on the door leading to the basement and nobody answered and so he opened the door and went downstairs with the electrician. The electrician worked on the furnace for 20 to 25 minutes and left.
[72] On the second visit, according to K.R., T.M. said "there's a leak" and the defendant said "help" and the young man went downstairs with towels to help deal with the leak. In cross-examination, the young man reiterated that the reason his father came down was because T.M. had said "there's a mess" and in response, the defendant said "I'm coming". The young man said he stayed on the second step and was handing towels to his father, the defendant, who in turn was cleaning up the water in the furnace room. It was a 10 minute job and then they both left.
[73] He said that T.M. showed up when his father was cleaning the water and that the defendant never touched T.M.
[74] K.R. also said that his mother was on the same set of stairs higher up and that she was handing towels down to him which he in turn was handing to his father. He also agreed that his mother was not standing on the steps the whole time.
[75] He said he did not discuss his evidence with his mother at any time.
[76] The wife of the defendant, T.V., testified as to the second incident. She said that T.M. told her that the furnace was not working. She in turn told her husband, the defendant. The husband looked at it and called the electrician. The electrician came and fixed it and there was water in the furnace room so her husband went down to fix it. She and her son, K.R., handed the defendant towels and the defendant cleaned the furnace room area. She agreed that she was not on the steps to the basement the whole time.
[77] I will not repeat all of the evidence from T.M. and T.V. about the last month's rent. The evidence of these two witnesses was largely consistent on this point. It was as described in more detail above in connection with my review of the evidence applicable to the first incident. Briefly, T.M. came to T.V. at some point after the furnace incident and said that she was leaving because the defendant had sexually assaulted her. She said that he had touched her breast. At some point around the same time, either in the same conversation or a separate conversation, T.M. asked the wife if she could get the last month's rent back. T.V. told her that they had already paid it to the real estate agent. There was also a conversation between with the mother in law and T.V. on the same subject.
(ii) Analysis
[78] I have considered the evidence of R.G. and the other defence evidence in connection with the alleged second incident and I do not believe it nor am I left in a reasonable doubt by it. I am also not left in any reasonable doubt by the limited conflicting evidence in the Crown's case. I will explain why.
[79] To begin with, as I said in my review of the law above, I recognize that the defence has no obligation to prove anything. Having said that, the defence asserted that the matters alleged in the complainant's evidence could not have happened for two reasons and the Court must consider those assertions. First, the defendant says he did not do what he is alleged to have done and he is a person of good character and he would not have done it. He said he never had a problem in the past with women tenants he had rented to nor has he had a problem with the many women he has worked with over the years. Second, the defendant's wife and younger son were there the whole time and said nothing happened.
[80] When one examines the defence evidence on the second alleged incident, it is full of contradictions and other problems.
[81] Let me address some of the contradictions or problems with the defence evidence. The defendant said it was he who knocked on the basement door and T.M. opened it. His son testified it was he who knocked on the door and that there was no answer and so he let himself in with the electrician and that T.M. showed up later when his father was already cleaning up the water in the furnace room.
[82] The defendant said it was the electrician who told him to clean the water in the furnace room. K.R. said it was T.M. who said "help" and "there is a mess" and that this prompted the father to enlist the boy's help in cleaning and going downstairs and handing him the towels.
[83] K.R. was confused on some points. He said that T.M. was not home initially at the time of the second visit by the electrician but that she came home when the father was cleaning up the water. However, he also said that it was T.M. who was there and who had asked the defendant to come and clean up in the first place. This makes no sense. Either she asked the father to clean up the water or he was cleaning it up on his own (or because the electrician asked him to) when T.M. came home. It cannot be both. I recognize that K.R. was still a child at the time of the events and the giving of his evidence and that adult standards should not be applied to child witnesses: R. v. W. (R.), [1992] 2 S.C.R. 122 at p. 133; and see R. v. Horton (1999), 1999 BCCA 150, 133 C.C.C. (3d) 340 (B.C.C.A.) at 348. Nevertheless, his evidence must be assessed fully and fairly and in light of the evidence as a whole. I will say clearly that I do not believe that he was on the stairs at all times as his father worked in the furnace room on the day of the alleged second incident. It does not accord with the evidence as a whole nor does it make sense.
[84] The defendant described a scenario that had his son and wife on the stairs and able to see him at all times when he was in the complainant's apartment. In addition to his son being there, he said "my wife was always there". However, his wife said otherwise. She said she handed towels to the younger son but she was not always on the stairs and able to see her husband. The son also acknowledged that his mother was not always there.
[85] Putting aside the contradictions in some of the detail of the evidence of the second incident as among the defendant, his wife and his son, I also found R.G.'s evidence that the reason he said his wife and son were with him in the first place to be incredible. He said they were there with him because "if anything happens, I need to have some proof" as if he had anticipated false allegations being made against him by T.M. even though there had been no difficulties between them in the past. While perhaps a landlord such as the defendant might do this to avoid any potential disputes with a tenant, R.G. then changed the reason they were there to be in case he was electrocuted, they would call 911. His changing explanations as to why his wife and son were allegedly with him at all times appear to me to more matters of argument rather than fact. These changing explanations make the contradictions among the evidence of the defendant, his wife and his son more significant as they suggest to me that it did not happen as the three of them said it did.
[86] Moreover, I note that as concerns the second incident, in the in chief evidence and cross examination of T.M., she was asked and she confirmed multiple times that the defendant was in the basement fixing the furnace . There was no suggestion to her that an electrician had come two days in a row into her apartment (August 3 and 4, 2016) and that she had let the electrician in on the first day as K.R. said. Further, it was not suggested to her that the defendant was not fixing the furnace; rather he was cleaning up a "swimming pool" of water in her apartment that T.M. had requested help with. The defendant went further and said in his evidence "all the hardwood, everything was ruined" and none of this was put to T.M. in cross-examination. The swimming pool of water and the resulting damage is the underpinning for the defendant's version of events that his wife, his son and he were all engaged in a water clean-up effort that involved relaying towels to him while he was downstairs thereby making it impossible, so the argument goes, for T.M.'s evidence to be true and yet T.M. was not asked about any of this. To be clear, I do not decide this case based on what propositions were put to T.M. or not. Having said that, I would have thought that if it were true that the defendant (with the watching eyes of the defendant's wife and son) was in the basement cleaning up a swimming pool of water that T.M. asked him to clean up and was not fixing the furnace at all, she would have mentioned this point in connection with her evidence as to what the defendant was doing in the basement, whether she was asked about it or not. She would surely have confirmed that there was a large amount of water in the basement which had damaged the hardwood and "everything was ruined" and that she had called to the defendant to help clean up the water. There would be absolutely no reason for T.M. not to mention these events and one would have thought it would be hard to forget them if they had happened. In my view, the reason she did not mention these events is because they did not happen.
[87] I appreciate that T.M. confirmed that the defendant's son often came downstairs with the defendant when he went downstairs but I do not believe on this occasion that he was sitting on the bottom step watching his father nor was there any leak or pool of water that was being cleaned up by the defendant on this occasion. It was suggested to T.M. in cross-examination and she said that it was possible that the son could have been there at some point, and she might not have known it, but it is clear from her evidence that the sexual assault interaction she testified to concerning the defendant included him shuffling her towards the stairs so he could see up the stairs and, therefore, on her evidence the son was clearly not there when she says the alleged sexual assault took place.
[88] I repeat the same point made above during my consideration of the first incident about the defendant's suggestion that his English was so poor that he did not know the words "I love you" in English which T.M. said he said to her at the time of second incident (as well as the first). The defendant had to acknowledge in cross-examination that he did know the meaning of the words "I love you" in English. This is a point which also undermines his credibility somewhat.
[89] Further, as mentioned above, R.G. also testified in chief that the case against him was all lies and that T.M. was doing it "for the money". In cross, it was made clear that his suggestion that she was doing it for the money was an allegation without foundation. He had to admit that he had nothing to base this allegation on and that T.M. had not made any money on this proceeding. While I have made the point throughout these reasons that a defendant need prove nothing, that does not mean that gratuitous attacks by a defendant against a complainant cannot undermine the defendant's credibility. It does so in this case.
[90] More importantly, the evidence of the defendant, his wife and their young son has to be considered in light of the evidence of T.M. In my view, T.M.'s evidence was compelling, coherent, logical and clear. As previously indicated, she willingly acknowledged negative things about herself or her boyfriend including that she had physical altercations with him and she willingly acknowledged errors in her evidence where they arose. I have already analysed the question of whether she had a motive to lie in the analysis section under the first incident and concluded that she had none, a point I adopt and repeat here. Indeed, T.M. had much to lose by making up allegations and going to the police. On the subject of motive, I note that the relationship between the defendant and T.M., was a simple commercial one. There had been no arguments between them in the past. Theirs was a relationship between a landlord and a tenant: she paid rent to the defendant or his wife and in return she received the apartment to live in for her and her family. In the context of a complaint in a commercial relationship, once it is determined that there is no motive for a complainant to lie for the money or for the goods and services which underlie the commercial relationship, then the absence of such a motive to lie becomes an important factor in assessing the credibility of the complainant. Obviously, the absence of a motive to lie is only one factor in the context of my consideration of the evidence as a whole, but it is an important one in this case which enhances the credibility of T.M. in my view. As I have already said, I am well aware that the defendant does not have to prove a motive to lie and simply because there is no such motive does not mean T.M. is telling the truth.
[91] In addition, I note as well that T.M. was not contradicted in connection with the second incident in any significant way by any prior inconsistent statement or otherwise. I recognize that I have found that the first incident was not proved beyond a reasonable doubt largely because of the apparent inconsistent statement in connection with incident number one about whether the older son was there at the time of the first alleged sexual assault. In my view, the apparent inconsistent statement in connection with incident number one does not undermine T.M.'s credibility or reliability with respect to the second incident. It barely undermines her reliability with respect to incident number one, given my analysis described above as to how it came about.
[92] I note as well that I have found as a fact that T.M. did tell H.S. about the events constituting the first incident and the second incident shortly after they happened and that this answers and neutralizes the allegation of recent fabrication. I will say that, in my view, there really is no credible allegation of recent fabrication to neutralize or answer as there is no basis at all in the evidence for the essence of the recent fabrication allegation namely that T.M. made up the allegations because of some desire for money.
[93] As I have said, I found T.M. to be coherent and logical in terms of her evidence. The disclosure to the defendant's wife that she was having to move out of the apartment because she said the defendant had sexually assaulted her is also a prior consistent statement which is admissible as part of the narrative (and there was no issue about this from the defence's perspective). Further, while a prior consistent statement cannot be used to enhance the complainant's credibility, it can place the disclosure of the allegations in context and in this way can be used to assess the truthfulness or not of a complainant.
[94] In this case, I consider that the disclosure by T.M. to the defendant's wife in mid-August of the alleged sexual assault and the stated reason to her that she was leaving the apartment as a result, does not enhance the credibility of T.M., but it can and does place the disclosure of the alleged sexual assault in a logical context which provides some assistance to the Court in assessing the evidence of T.M. The fact that she made a prior consistent statement to the defendant's wife when she did does not make it true but it does contribute to the overall coherency and logic of her evidence. Almost right away after the second incident, she took her daughter to Sick Kids hospital for a week or so and she stayed there with her. Shortly after she returned to the apartment from the hospital stay, she made the disclosure to the defendant's wife when she said could not remain there because of the alleged sexual assault. At the end of the month of August, she went to the police and then left the apartment and did not return. She testified that she had not previously complained about the June incident as she was scared, she thought they would have to move out and they were tight on money. By the time of the second incident, she was not comfortable remaining there any longer. In my view, there is a compelling logic to the foregoing timing of the disclosure to the wife and the police. The fact that she waited a few weeks after the second incident to go to the police is of no consequence in my view.
[95] For the reasons outlined above, I have rejected the evidence of the defendant, his wife and son as concerns the second incident. The evidence of the defence to the effect that the second incident did not happen because the wife and son were watching and the defendant could not have done it, makes no sense looking at just the evidence of the defendant, his wife and son and makes even less sense when considered in light of the evidence of the Crown. Further, I have considered whether the defendant's evidence and the other defence evidence and potential conflicts in the Crown's case (such as the prior inconsistent statement in connection with the first incident) gives rise to a reasonable doubt and I have concluded that it does not.
[96] In applying the W.D. framework and considering the evidence as whole, I have considered the character evidence of the defence namely the evidence of the defendant and his wife and older son, that he is a good person, who has never had a similar allegation made against him in the past. I must say that I do not consider it to be the strongest of character evidence when a defendant serves as his own principal character witness. Having said that, I fully accept that there is no evidence that the defendant has had any difficulty with women tenants or work colleagues in the past and I have considered this point in my assessment of the evidence. Nevertheless, I have arrived at the conclusions that I have and I am not left in a reasonable doubt by the character evidence or the other evidence tendered in support of the defence's case or arising in the Crown's case.
[97] I turn to the third part of the W.D. test: has the Crown proved the second count of sexual assault beyond a reasonable doubt? Considering the evidence as a whole and for the reasons discussed above, T.M. is credible and reliable as concerns the second incident. I recognize that reasonable doubt can survive a credible and reliable complainant but that will not always be the case and it is not the case here with respect to count 2. I am satisfied beyond a reasonable doubt that the Crown has proved that the second incident occurred on or about August 4, 2016 and that R.G. sexually assaulted T.M. by touching her breast and by taking her hand and by trying to place it on his crotch area, just as she said he did. The touching was on the outside of her clothing. He did say the things she attributed to him as well. The touching of T.M. by R.G. was without her consent and that should have been absolutely clear to him. There was no argument otherwise on the issue of consent at trial.
Conclusion
[98] In the circumstances there will be a finding of guilt on the second count, namely the sexual assault on or about August 4, 2016. There will be an acquittal on the first charge, the alleged sexual assault between June 20 and June 30, 2016.
Released: May 12, 2017
Justice Paul F. Monahan