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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: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 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.

Court Information

Ontario Court of Justice Date: April 4, 2019 Location: Scarborough - Toronto

Parties

Between: Her Majesty the Queen And: M.T.A.

For the Crown: C. Moore For the Defendant: J. Silver

Heard: February 4 and 5, 2019

Reasons for Judgment

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] M.T.A. is charged with one count of sexual assault arising out of a June 10, 2017 encounter between him and the complainant, S.V.

[2] The trial was relatively brief. Only the complainant testified for the Crown. Only the accused testified on his own behalf.

[3] The accused and the complainant were friends. He had been involved in a common-law relationship with her mother, and all three had lived together for some time. S.V. and her mother had moved out of that home several months before the incident in question.

[4] The complainant alleges that on June 10, 2017 she took the accused to a dentist appointment after which she took him home and went inside his house to look at his motorcycle. While sitting on the couch with him he groped her without her consent.

[5] According to the accused, while sitting on the couch with the complainant, she began to fondle his penis over his clothes then asked him for a loan. He rebuffed her sexual advance and refused to lend her the money. She then left and made a false allegation of sexual assault against him to the police soon later that afternoon.

B. EVIDENCE

(a) Introduction

[6] The testimony of S.V. and M.T.A. share much common ground.

[7] S.V. is 23 years old and met the accused five years ago through her brother who worked in construction with him. S.V. is employed, but not full time.

[8] M.T.A. is a 49-year-old welder and carpenter. He is not a Canadian citizen and has been forbidden from working by immigration authorities since the incident between him and the complainant. S.V. referred to the accused as M.

[9] S.V.'s mother began a common-law relationship with the accused and all three began living together in 2016. After approximately one year – two months before the incident in question, the complainant and her mother moved out, yet both women remained on good terms with the accused. The accused moved to another home as well. The complainant continued to see the accused socially, though only sporadically.

[10] Because the accused did not speak much English (Spanish is his mother tongue), S.V. would sometimes, at the behest of her mother, take him places and translate for him. She did this a week before the incident and again on June 10, 2017 – this time to the dentist.

[11] S.V. had never been to the accused's home before and he sent her his address the previous day.

[12] She picked him up at 11 am and took him to the dentist. They then went to lunch at a restaurant in Yorkdale Mall. He treated her and they both had some alcohol with their meals. She then drove him home and he invited her in to see his motorcycle, which she had heard him talk about before.

[13] She had borrowed money from him in the past and he had always lent her money if he had it available, yet when he did not have money available, he refused. She admitted that she had fallen into arrears on an insurance policy they shared, and on a cell phone bill for a plan she shared with the accused.

(b) The Contentious Aspects of S.V.'s Testimony

[14] According to S.V., after looking at the accused's motorcycle (which she says he turned on, even though it was in the living room), he offered her a beer which she accepted, and he also helped himself to one. They sat on the couch a few feet apart and began to chat. She told the accused that her car's windshield was broken but she didn't have the $300 needed to fix it. He then suggested she prostitute herself to make some money.

[15] S.V. was outraged by his comment and told him he had crossed the line.

[16] The accused then moved towards her. While both were still seated on the couch, he began to touch her without saying anything. He put his right hand on her thigh under her dress and told her that he could give her $300 to fix the car. She told him he was crazy and not to touch her, but he persisted. He then stood up and began fondling her breast through a hole at the shoulder of her dress and, as she got up, he began fondling her vulva and clitoris by pushing her underwear aside. She struggled to push him away, and once they were both standing, he grabbed her arms and pinned her against the wall. He kept molesting her, saying that there was nothing wrong and that no one needed to know.

[17] He then took her by the wrist and put her hand against his erect penis. He also licked and sucked on her cheek and shoulder.

[18] S.V. managed to escape by making it appear like the incident was not a big deal, reiterating that she would see him again next week for the follow-up dentist appointment that had been arranged.

[19] She drove directly to the nearest police station and parked across the street. She phoned her brother and mother for advice then went into the police station and gave a statement as to what had occurred.

[20] While S.V. admitted to having borrowed money from the accused before, she denied ever not paying him back. She also denied that she had pocketed the money she received from him for his share of the insurance premiums they shared, instead of sending it to the insurance company.

(c) The Contentious Aspects of the Testimony of M.T.A.

[21] According to M.T.A., S.V. had lied to him in the past concerning financial obligations they jointly incurred when living together. According to him, he and she were jointly insured under an auto policy and, while he had been giving her his share of the premiums, she had not forwarded that money to the insurance company. And, she had failed to pay him back money he had lent her previously.

[22] Not long after he and S.V. sat down on the couch and she had finished her beer, S.V. moved over and put her hand on his penis over his clothes. She rubbed him for a few seconds then asked to borrow $1,000. He told her she was crazy to think he would lend her money when she still owed him money. She then got up and said "so, you aren't going to lend me money?" and left, reminding him she would pick him up next week. The accused then put on a pair of shorts, listened to some music and took a nap. The police came to his home and arrested him a few hours later.

(d) The Photographs

[23] Photos of S.V. were taken by the police and were made exhibits at trial. They do not reveal any noticeable injuries.

C. ANALYSIS

[24] The law governing my approach to this case has its foundation in R. v. W.D., [1991] S.C.J. No. 26.

[25] First, the accused is presumed innocent and the burden of proof is on the prosecution throughout. In order to secure a conviction, the Crown must prove the sexual assault allegation against the accused beyond a reasonable doubt.

[26] Because M.T.A. testified, I must also follow this approach: If I believe M.T.A.'s denial I must of course find him not guilty. Even if I do not believe him, his evidence may nonetheless, when examined in the context of all the evidence, raise a reasonable doubt. If it does, I must also find him not guilty. If it does not raise a reasonable doubt, I must examine the evidence that I do accept to see if it proves the allegations beyond a reasonable doubt. If it does not, M.T.A. must be acquitted. If it does, he must be found guilty.

[27] For the reasons that follow, I do not believe the evidence of the accused, nor do I find that it raises a reasonable doubt.

[28] I find M.T.A.'s version of events extremely unlikely. S.V. had borrowed money from him before. Why would she have immediately resorted to stroking his penis in order to secure a loan this time? Especially where there was no history of any flirtation or sexual tension between them.

[29] It is sometimes dangerous to ask why a complainant might make a false allegation to police. It is well recognized that absence of evidence of any motive to fabricate does not make an allegation more likely true. R. v. John, 2017 ONCA 622 at para. 93. But, in this case I find that there is in fact evidence of a lack of motive to fabricate. M.T.A. had refused to lend S.V. money in the past, yet these prior refusals had had no negative impact on their relationship. Given the evidence as to the history of the relationship between the two, it strains credulity that S.V. would take such an extreme step as fabricating an allegation like this one over a routine refusal on the accused's part to lend her money.

[30] I caution myself that I am not simply to choose between S.V.'s version of events and that of M.T.A. I may, however, consider, the cogency and credibility of S.V.'s account in determining whether to accept M.T.A.'s testimony, or in determining whether it raises a reasonable doubt, and I have indeed done so. R. v. J.J.R.D., [2006] O.J. No. 4749 at para. 53; R. v. R.D., 2016 ONCA 574 at paras. 13-30.

[31] As concerns the evidence of S.V., I found her evidence extremely convincing. Her account made sense, flowed logically, and was given in a calm and measured fashion. She resisted all opportunities to exaggerate. Her testimony was not undermined in cross-examination. In fact, upon being asked by defence counsel to recount the incident, her testimony was remarkably consistent with the version of events she gave in her examination-in-chief.

[32] She candidly, and without hesitation, admitted to being somewhat careless with her financial obligations to the insurance company, and the details she provided logically support her denial of the financial wrongdoing alleged by the accused. While her denial was largely implicit in her evidence, this is because defence counsel chose not to cross-examine her very closely on many of the details of the accused's allegations of financial misconduct.

[33] The photos show no visible injuries, but this does not detract from the complainant's evidence. She did not complain of injuries that would have been visible had they occurred. The decisions to take the pictures and then submit them into evidence were not hers.

D. CONCLUSION

[34] Having accepted the evidence of S.V., and having rejected the evidence of the accused, I am convinced beyond a reasonable doubt that M.T.A. committed a sexual assault on S.V. as alleged in the information. I thus find him guilty as charged.

Released on April 4, 2019

Justice Russell Silverstein