WARNING

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

This is a case under the Young Offenders Act and is subject to subsection 38(1) of the Act. This subsection and subsection 38(2) of the Young Offenders Act, which deals with the consequences of failure to comply with subsection 38(1), read as follows:

38. IDENTITY NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish by any means any report

(a) of an offence committed or alleged to have been committed by a young person, unless an order has been made under section 16 with respect thereto, or

(b) of a hearing, adjudication, disposition or appeal concerning a young person who committed or is alleged to have committed an offence

in which the name of the young person, a child or a young person who is a victim of the offence or a child or a young person who appeared as a witness in connection with the offence, or in which any information serving to identify such young person or child, is disclosed.

(2) CONTRAVENTION — Every one who contravenes subsection (1), . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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.

ONTARIO COURT OF JUSTICE

CITATION: R. v. K.S., 2019 ONCJ 130

DATE: February 26, 2019

COURT FILE No.: 17-Y0054

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

K.S.

Before Justice Robert S. Gee

Heard on June 20 and October 26, 2018 and January 22, 2019

Reasons for Judgment released on February 26, 2019

William Dorsey and Michael Dean.................................................. counsel for the Crown

Eric Angevine……………………………………………………. counsel for the accused

Gee J.:

INTODUCTION

[1] During the summer of 2000, J.M., the complainant in this matter was six years old. She lived in Brantford, Ontario with her parents and older brother and sister.

[2] The accused, K.S., that same summer was 14 years old and was the best friend of the complainant’s older brother A.M.

[3] The M. family had purchased a new home that summer. They took possession of it before completing the sale of their old house. This meant for that summer they possessed two homes. When they took possession of the new house, they moved much of their belongings to it and started living there. This made for a busy summer, especially for the complainant’s parents. On top of their employment, they were completing work and upgrades at both houses in addition to continually moving and setting up their belongings at the new house.

[4] The accused was a constant presence at the M. house and in their lives at that time. He described them as his second family and the feeling at that and for some time after, appeared mutual.

[5] This trial has taken place because the complainant has alleged that on three or perhaps four occasions that summer, the accused sexually abused her in the basement of her new home. The accused was charged as a result with three offences, sexual assault, sexual interference and invitation to sexual touching.

[6] In this, as in all cases, the accused is presumed innocent and the Crown bears the burden of proving the accused’s guilt beyond a reasonable doubt. Proof beyond a reasonable doubt is a particularly high standard. This bar is set high for good reason. Canadian society is one which guards its liberties jealously. We have granted the state the right to label someone a criminal and thereby impose sanctions on them, up to and including the loss of their liberty, only after their guilt has been demonstrated to as near a certainty as we can.

[7] This is proof beyond a reasonable doubt. It is a much higher standard than that of proof on a balance of probabilities as is the standard in a civil case. Proof beyond a reasonable doubt lies much closer to absolute certainty than to a balance of probabilities.[^1]

[8] Meeting that standard is always a daunting task for the Crown. It can become even more daunting in a case such as this. The bulk of the evidence in cases such as this comes from the testimony of witnesses. When witnesses testify about events that took place a significant time ago it can become problematic. Memories fade over time. The longer the time between the event and the trial, the greater the potential is for witnesses’ memories to fade. This means the quality of the evidence generally deteriorates as time goes on.

[9] In this case, an added issue is that the two most important witnesses were testifying about events that not only took place a long time ago, but which also took place when they were children or adolescents.

[10] However, the burden on the Crown never changes. The Crown still has the burden of proving the accused’s guilt beyond a reasonable doubt even in the face of these evidentiary challenges. It is not permissible to ease the burden on the Crown because the charges are serious or because of evidentiary challenges the case presents.

[11] With these principles in mind, the balance of these reasons will explain why I find the Crown fell just short of its burden in this case and why as a result I will be dismissing the charges against the accused.

FACTS

[12] Four witnesses testified at trial. Both the complainant and accused testified as did the complainant’s parents. As stated earlier, the complainant testified the accused took her into the basement at the new house and sexually abused her on at least three or perhaps four occasions over the summer of 2000. The abuse progressed from him fondling her to incidents of oral sex according to the complainant.

[13] The accused denies it. He says quite simply, it didn’t happen. He does admit to being at the complainant’s house very often that summer. He says he was there in part to help the family move and set up their new house, but he mostly played video games with his best friend, A.M., the complainant’s brother. His interactions with the complainant were brief and few and far between. Additionally, he was never alone with her.

[14] Since the complainant and the accused are the only two who would have any direct knowledge as to what may or may not have happened between them, the evidence of the complainant’s parents does not advance the analysis to a great degree. For the most part, their testimony provided some background and context to the events of that summer. Both parents confirmed the accused was at their house often that summer. They both confirmed the accused and their son would play video games in A.M.’s bedroom for hours, practically uninterrupted and seemingly oblivious to the world around them.

[15] One thing that did come out though is that the complainant’s mother testified there would be times when she and her husband would make trips to the old house and leave the accused, who was the oldest being about a year older than A.M., alone and in charge of their three kids, including the complainant.

ANALYSIS

[16] The Crown and defence agree on much in this case. They agree the principles set out in two cases in particular are engaged here. The first and most obvious is R. v. W.D. 1991 93 (SCC), [1991] 1 S.C.R. 742. The second is R. v. J.J.R.D. 2006 40088 (ON CA), [2006] O.J. No. 4749 (Ont. C.A.).

[17] In W.D., the Supreme Court set out a useful framework for me to follow in a case such as this where an accused testifies and denies or gives a different version of events from the complainant or other witnesses.

[18] The framework when followed, ensures that the burden on the Crown to prove the case beyond a reasonable doubt stays in focus when credibility assessments are being made. It reminds judges that this is not a simple credibility contest. It is not proper for me to choose which side has the more believable version. The side that tells the better or more believable version, is not by that fact alone, entitled to win.

[19] As well, if I do not believe a witness either entirely or on a particular point, it is not proper because of that disbelief to simply conclude the other side’s competing version must be true or accurate.

[20] W.D. tells me to approach the case in this manner. First I should ask myself if I believe the accused. If I am convinced that his version is true and accurate and I believe him, then he is entitled to an acquittal.

[21] The second part of the W.D framework comes into play if I conclude I do not believe the accused. If I do not believe him, in order to remain focussed on the Crown’s burden, I should ask if I am still left in a reasonable doubt by it. At this stage I have to ask if there is a basis to reject the accused’s evidence outright. If I find that even though I do not accept the evidence of the accused, I am still unable to reject it as either untruthful or unreliable, then I would have to find the evidence of the accused has still left me with some doubt. The accused is entitled to the benefit of that doubt and is again entitled to an acquittal.

[22] It is only after I have found that I do not believe the accused and his evidence does not leave me with a reasonable doubt that I should move on to the third part of the W.D framework.

[23] This part of the framework reminds me that even if I have not believed the accused’s evidence and have in fact rejected it in its entirety that does not necessarily lead to a finding of guilt. I must then ask myself if based on the evidence I do accept, does that evidence convince me beyond a reasonable doubt the accused is guilty. That is the only pathway to conviction. I have to be convinced of the accused’s guilt beyond a reasonable doubt based on the evidence I do accept.

[24] The other case at play is J.J.R.D. That case grappled with the issue of when it is appropriate to reject outright, the evidence of an accused when on its face, there is nothing inherently flawed with it.

[25] Evidence of any witness, including that of an accused, can be reject for many reasons. Some of the most common or traditional reasons are that the testimony given in court conflicts with statements made by the witness at prior times. This could be statements given to police, or things the witness said to others out of court. The testimony could be rejected because it changes as it’s given. For instance, when confronted with things in cross examination the testimony may change from what was given earlier. When the evidence defies logic or common sense, this is also a basis for its rejection.

[26] When the testimony of an accused does not have one of these common or traditional flaws, it is still capable of rejection. This is what the Court of Appeal confirmed in J.J.R.D. In that case the Court stated an accused’s testimony can be rejected because it conflicts with other evidence that is accepted. The court stated the principle in par 53 as follows:

An 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.

[27] In my opinion, this case did not break any new ground. It just restated and articulated what judges were already doing. For instance, rejecting an accused’s denial about committing the offence, even absent any obvious flaws in his testimony, when his DNA was at the scene and there is high quality surveillance video of him committing the crime, would not be controversial to anyone. Rejection of an accused’s evidence in the face of this kind of conflicting evidence is routine.

[28] All the Court did in J.J.R.D. was confirm that a rejection of an accused’s evidence can also be based on the reasoned acceptance of the testimony of other witnesses, which could very well be the testimony of the complainant.

[29] The manner in which the evidence came out in this case, counsel agree, has brought both these cases, W.D. and J.J.R.D., into play.

[30] Starting with the evidence of the accused, counsel agree there was nothing in his testimony either in the manner presented or in its substance, to form the basis for its rejection.

[31] I would agree. At its core he has denied touching the complainant in any manner. His evidence in many respects was consistent with that of all others. He agreed that he was at the house a lot that summer, he and A.M. played video games in A.M.’s room and he was in agreement about where the couch was in the basement behind which at least several of the incidents were alleged to have taken place.

[32] I am urged by the defence to either accept the evidence of the accused and acquit him or at least to find no basis for the outright rejection of his evidence and as such conclude it has left me with a reasonable doubt.

[33] The struggle in this case derives from something else on which both counsel agree. They agree as well that the evidence of the complainant was also very compelling and without any obvious flaws. That is an assessment I also agree with.

[34] She was a very good witness. I did not detect any attempts to embellish her allegations, any significant animosity she harboured for the accused that might colour her testimony either intentionally or unintentionally, nor did I detect any hint of guile on her part.

[35] Her recall of the events was particularly vivid especially given the passage of time and her age when this would have occurred. She remembered things like the colour of the light that shone through the curtains, how she was oriented in the room and where her father’s alarm clock was near the couch. She also remembered the green shorts she wore during one incident as well as the hairstyle, like the rapper Eminem, the accused wore at the time and that he always wore a belt that made the removal of his clothes during the incidents somewhat cumbersome.

[36] The Crown has argued that given the quality of her evidence, I have a reasoned basis for accepting it and I should do so. Further, there is the evidence of the complainant’s mother that the accused was left alone with the kids, thereby providing him an opportunity to commit the offences. Acceptance of this evidence, that of the complainant and her mother, ought to lead me to reject the accused’s evidence outright.

[37] Overall, on the first part of the W.D framework I have no qualms saying I do not believe the evidence of the accused. I come to this conclusion primarily because of the compelling nature of the complainant’s evidence but also because his evidence does conflict with the evidence of the other witnesses in a couple of respects. First he testified the basement was much more cluttered than all the other witnesses said it was. I do not believe him on this point. I cannot decide though whether he was being untruthful, hoping I would conclude the basement was too cluttered to make it possible for the offences to be committed as described, or if his memory is unreliable given the passage of time and the unfortunate hoarding behaviour that everyone acknowledges befell the complainant’s father later in life that the accused would have been aware of and seen.

[38] Also his evidence that he was never alone with the kids was contradicted by the complainant’s mother and I accept her evidence on this point. She would have known whether she left her kids alone with the accused at the time so I accept her evidence in this regard.

[39] So for these reasons I do not believe the accused’s testimony. The real heart of this case is on the second part of the W.D. framework, whether I am left with a reasonable doubt.

[40] As noted, the Crown has urged me to review the evidence in its entirety and after doing so to accept the complainant’s evidence as truthful and accurate and thereby reject the contradictory evidence of the accused. Again the defence urges this path of reasoning not be followed. The defence points out that in J.J.R.D. the judge there found what tipped the balance in favour of acceptance of the complainant’s testimony was that it was corroborated by her diary. Here the defence argues, there is no such corroborative evidence to support the complainant’s testimony.

[41] The principle in J.J.R.D. I find is not that restrictive. There is no requirement for there to be corroborative evidence present before the testimony of a complainant can be accepted as the basis for the rejection of an accused’s evidence. That was just a fact peculiar to the J.J.R.D. case that was part of the reasoning underlying the judge’s acceptance of the complainant’s evidence.

[42] Having said that though, the reasonable doubt I am left with in this case is rooted in the second part of the W.D framework. Although I do not believe the accused’s version, in the end I am still left in doubt by it.

[43] Quite frankly it is tempting to find as the Crown urges me to because I believe it’s most likely the complainant is telling the truth and the accused probably did abuse her as she has alleged.

[44] However, what I find is that even though her testimony is compelling and her recollection of the events is vivid, in all the circumstances, I cannot say that the accused’s recollection is significantly less so or his denial less compelling. What I cannot lose sight of is that if the accused is telling the truth, other than it was when his best friend’s family moved, there would have been nothing particularly distinctive about this summer compared to others of his youth. Given that, his recollection of these events from nearly two decades ago is compelling too.

[45] As such, were I to simply accept the testimony of the complainant and use it to reject the testimony of the accused I would be falling into the error mentioned earlier of treating this as a credibility contest and choosing the more believable version.

CONCLUSION

[46] It is for this reason I am still left with a reasonable doubt and that the charges against the accused will be dismissed. I realize this judgment will likely satisfy no one. It took a lot courage and bravery for the complainant to come forward after all this time. She leaves with a judge telling her he almost assuredly believes her; but without whatever healing or closure that might come from a conviction. On the other hand, the accused is found not guilty but has had a public declaration by a judge that he most likely did what he is accused of doing.

[47] Some may say results such as this are indicative of a flawed system. I would beg to differ. I would say that results like this are indicative of a justice system working as it should. History has shown, when lesser burdens than the heavy one here are placed on the prosecution, injustices and wrongful convictions are inevitable.

[48] I wish the complainant good health and recovery in the future, from my brief time with her she seems to be a brave and strong person.

[49] The charges against the accused for these reasons are hereby dismissed.

[^1]: See: R. v. Starr 2000 SCC 40, [2000] S.C.J. No. 40 paragraphs 239 to 242