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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: August 11, 2017

Court File No.: Region of Durham 998 16 35284

Between:

Her Majesty the Queen

— AND —

V.O.

Before: Justice J. De Filippis

Heard on: June 28 & 29, 2017

Reasons for Judgment released on: August 11, 2017

Counsel:

• Mr. F. Stephens — counsel for the Crown
• Mr. D. Greenway — 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. The offences are said to have occurred in Central East Region on May 23, 2016. The defendant is the step-grandfather of the complainant. It is alleged that he inappropriately touched the complainant on her breast and thigh while she sat on a couch in his living room. I heard from the complainant, her mother, and the defendant.

[2] These reasons explain why I find the defendant not guilty.

Prosecution Evidence

[3] Pursuant to section 715.1 of the Criminal Code, a video record of the complainant's statement to police was received as evidence in the presence of the complainant. She adopted the statement as truthful and accurate.

[4] The interview in question was held on June 13, 2016, just before the complainant's 13th birthday. It was conducted by Officer Hancock with appropriate, non-leading questions. When asked to "tell me what's gone on", the complainant responded as follows:

And then we went in the basement, when - where my little sister and my little brother, they were just watching some TV. And I was just playing on their iPad. And then [the defendant], her husband, he came to sit – I still had my bathing suit on at this point. I was just sitting on a towel. And he came to sit beside me on a chair. Like it was like a couch like this. And he came to sit beside that was on a chair right here. And he was just – he was like ho, I really – I like your bathing suit. And he was just like doing a circling motion. I just – I twitched, and I went like this. And he just put his hand back. And then he went – like a while after, he went upstairs with my grandma for like five minutes, and then came back down, and he sat beside me. There was like a space between my sister and I. And he sat beside me here. And he started just rubbing my leg like, and my upper thigh. And it made me feel like really uncomfortable, but he stopped doing that like after three minutes. And so, then again he – he's like oh, I – I really like this bathing suit, you know. And then somehow like his finger got like caught – like in there. And I kind of twitched like that, again. He brought his hand back. And that was end of that.

Officer: Okay. So, what happened after that?

Complainant: Well, I'd say about 15 minutes after my grandma came back down to sit with us. And she told us how like my mom was 'gonna come pick us up soon. And I was just waiting for like time to pass 'cuz I really wanted to go home, and tell my mom what happened. And so, then she didn't come, and we had to go to the next day. So, my grandma, she just decided to drop us off. So, she dropped us off. I – we went home, and I didn't want to tell my mom when like my dad was around because I was afraid that like he would be the one that would have to end up in jail because he would do something. So, when my mom was upstairs in her room alone, I went and told her like what happened, and that I don't really like feel comfortable around him, anymore. Because like he was like a really nice guy, and when he did that, I just – I don't know what happened. He just – he didn't really turn into that nice person that I knew, anymore. So, I told my mom, and she – like I told her how I didn't want to tell my dad 'cuz I didn't want it to turn into something really bad. So, she said okay. And she said that she would deal with that.

Officer: Okay. And then what happens next? Do – do you know how she dealt with it, or what happened after that?

Complainant: I'm not sure. But after a couple of days, she said that – she came up to me, and she's like, you know, it's really wrong to keep this from your dad, I think we should tell him what's going on, so that we could report it to the police.

[5] In follow up questions by the officer, the complainant explained that she and her siblings had been dropped off at the home of the defendant and her grandmother and that her mother left about 30 minutes later. After swimming in the pool, the children sat by a fire in the backyard with the grandparents. Her grandmother ordered pizza for dinner and then went to her bedroom as she was not feeling well. The children ate their dinner in the basement living room and settled down to watch television. The complainant joined her brother and sister on the couch and sat at one end. The defendant sat on a kitchen chair that was beside the complainant. This is when the defendant touched her breast over her bathing suit; the complainant demonstrated a circling motion with her finger as she described this incident. After she "twitched for him to keep his hands to himself" he "brought his hands back" and went upstairs. Five minutes later, he returned and sat on the couch between the complainant and her sibling. She testified that the defendant again complimented her on her pretty bathing suit and rubbed her thigh, somehow getting his finger hooked in the clothing. She "twitched" again and he stopped. Within about 15 minutes her grandmother joined the group and the children later returned to their home. The complainant stated that the defendant has never done anything like this before.

[6] The complainant agreed that the events she described occurred while her siblings were seated on the couch with her and that her grandmother was elsewhere in the home. She cannot recall if a little pizza sauce fell on her while she ate but is certain that the defendant did not wipe it off.

[7] The complainant advised the officer that she calls her grandmother "nana" and the defendant by his first name. She added that she is aware her mother and uncle have never liked the defendant but she considered him to be "almost like a grandpa" and "we would have fun". Nevertheless, in the year prior to the events in question, she did not sleep over as often at their home because the defendant "would always be getting mad" at her grandmother and "like swearing at her, and like yelling at my grandma". Moreover, the complainant noted that although the defendant was "really nice" to her, when she visited, "it wasn't to see him, it was to see my grandma because like my grandma and I have a really – like close relationship". If her grandmother was not home, she would not visit the defendant. She testified that she is now worried he will show up at her school; "…maybe in case like he knows that I told the police, and he'd wanta like try to get me, or something". The complainant confirmed that this has not happened but added that she and her mother "watch Forensic Files and stuff like that….So, I'm kind of like aware of my surroundings".

[8] The complainant's mother testified that the complainant was born in 2003 and that she also has a younger son and daughter. She confirmed that on the day in question, she dropped the children off at the home occupied by her mother and the defendant. The children were returned to her home around 8:30 or 9 PM. She said that around 11 PM, the complainant came to her bedroom and said she wanted to talk. Her husband was not present in the room. The witness said she was shocked by what her daughter told her and asked her to demonstrate it. The complainant did so. Subsequently, on June 13, she discussed the matter with her husband and took the complainant to the police. She added that she had previously told her daughter that nobody could touch her, and to highlight the importance of the matter, made it clear that also meant, "not her father, or brother, or uncle". The complainant was also told to report any such incident to her right away.

[9] The complainant's mother conceded that she has never had a meaningful relationship with the defendant. She said she never really knew him and "he lost my respect when he cheated on my mother - but that is a different issue". The witness did not report her feelings to the complainant but acknowledged the latter likely overheard relevant conversations.

[10] This witness testified that her daughter reported being touched on the breast and thigh by the defendant. However, the chronology of events does not accord with the complainant's trial testimony. When confronted with this, the witness said, "I'm trying to remember her words…that is how I remember it – it wasn't' the other way around".

Defence Evidence

[11] The defendant was born in Ecuador. He does not have a criminal record. His employment as a construction worker ended with a workplace injury. He survives on the rental income from the lease of the main floor of his home. He married the complainant's grandmother about seven years ago. She left him after his arrest on these charges.

[12] The defendant testified that his marriage to the complainant's grandmother was his first and her fourth. They do not have children together. He said that the marriage was not a good one and they separated on several occasions. He alleges that his wife often belittled him in front of her extended family, including the complainant. These allegations concerned mundane matters, such as how he ate, to significant ones, like infidelity.

[13] According to the defendant, his relationship with the complainant's mother was not close; "I could sense early on that they did not like me…they never invited me for dinner or a lunch in seven years…[My wife] went there three to four times a week". He added that he overheard his wife telling his daughter, in a telephone conversation, that he was "a loser".

[14] The defendant testified that he had just opened the backyard pool on the day in question. He was surprised to see the complainant's mother bring her children to the home as nobody told him they were visiting. In any event, since the water was cold, he encouraged his wife to push him into the pool "to get things going". She did so and the children soon followed. He left the pool as they continued to play. Later, at the request of his wife, he went out to buy pizza for all to eat. He served it to the children as his wife went upstairs to lay down in bed. The defendant saw that some pizza sauce had fallen on the complainant's chest, near her shoulder, and he wiped it clean with a Kleenex. After joining his wife in the bedroom for about 10 minutes, he returned to the children and served them soda pop. He told them to keep this as their secret as "they are not allowed to have pop" and joined his wife again in the bedroom. Not long after, the children were taken to their home.

[15] The defendant and his wife are members of the Jehovah Witness faith. He testified that the following weekend when he went to the Kingdom Hall, he heard about these allegations from the "elders". He said he was "in shock". Almost four weeks later, he was arrested and taken to a police station, "where I answered all their questions".

[16] The defendant denied the allegations that he touched the complainant inappropriately on the breast or that he rubbed her thigh. He disputed her assertion that there was a chair beside the couch; he said the chairs that are normally in the basement living room had been taken upstairs to interview prospective tenants. The defendant cannot say whether it was before or after the police interview that he remembered wiping the pizza sauce from the complainant. In any event, he agrees he did not tell the police and was not asked about it.

Analysis

[17] 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., 63 C.C.C. (3d) 397.

[18] Defence counsel submitted that there is no basis to reject the defendant's evidence and he should be found not guilty. Counsel noted that, in any event, there is a serious discrepancy between the chronology of events as related by the complainant and her mother. This, it is said, is all the more significant given that the complainant reported the incident that same evening. Lastly, it is argued that the complainant was aware of the "family animus" toward the defendant and this raises issues of credibility and/or reliability.

[19] The Crown conceded the high standard of proof in a criminal case but noted that a "he said/she said" case does not mean an automatic acquittal. Counsel argued that the complainant, although only 13 years old, provided a clear and consistent narrative that should be accepted. On the other hand, the defendant's testimony should be rejected because he not only denied the allegations but provided "contrived" testimony about the chair to show the events could not have happened. It is said the pizza sauce story is also false.

[20] The defendant has denied the allegations. I have considered his testimony carefully. It is a simple and straight forward account of his version of events. It was challenged but not substantially undermined by cross-examination. In this regard, the defendant's dubious evidence about whether a chair could have been present beside the sofa is not sufficiently troublesome to cause me to reject his evidence entirely. Moreover, his testimony about the pizza sauce is not similarly suspect.

[21] In the circumstances of this case, the only basis upon which I could reject the defendant's testimony is that it is inconsistent with that of the complainant. In the appropriate case, a finding of guilt could be grounded on such an analysis. I accept 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 evidence beyond a reasonable doubt; See R v Martin, 2017 ONCA 322. This is not one of those cases.

[22] I have confidence in the testimony of the complainant's mother. She appeared to me to be an honest and sensible person. I am not concerned by the fact she may have reversed the order of events as reported to her by the complainant. Her daughter had just alleged a sexual assault. In such circumstances, it is understandable that a mother might be confused by the details. However, her evidence is of little assistance to the issues I must decide; namely, what happened, in her absence, between the defendant and complainant.

[23] The complainant presented as an intelligent and articulate young girl. There is little doubt that she told me the truth as she sees it. However, the facts reported by her leave too much room for ambiguity and misunderstanding. This reasonable possibility may also be informed by an unconscious bias on the part of the complainant because of her awareness about how her mother and others viewed the defendant.

Conclusion

[24] The Crown has not met its burden of proof. The charges are dismissed.

Released: August 11, 2017

Signed: "Justice De Filippis"