WARNING — PUBLICATION BAN

The court hearing this matter directs that the following notices be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act.

Section 110 — IDENTITY OF OFFENDER NOT TO BE PUBLISHED

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

Section 111 — IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

Section 129 — NO SUBSEQUENT DISCLOSURE

No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

Section 138 — OFFENCES

Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(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:

Section 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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.

Section 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: November 20, 2019

Location: Scarborough - Toronto

Parties

Between: Her Majesty the Queen

And: O.M.

For the Crown: A. Gilmer

For the Defendant: P. Bacchus

Heard: August 19, 20, 21; September 23, 2019

Reasons for Judgment

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] On November 23, 2018, O.M. (the accused) was 15 years old. Z.A. was 14 years old. They knew of each other, having both attended the same middle school more than a year earlier.

[2] Late that afternoon the accused was waiting for a friend at a bus stop near the Burger King at Markham Rd. and Lawrence Ave. in the City of Toronto. Z.A. came over and they chatted. The accused decided to walk to a nearby park and Z.A. accompanied him. Once at the entrance to the park the two stopped on a staircase leading into the park.

[3] According to Z.A., the accused took her to a nearby fence and had sexual intercourse with her against her will. According to the accused, the two of them conversed briefly on the staircase after which he walked away, traversing the park alone as he made his way home.

[4] The Crown called two witnesses; Z.A. and her friend, A.T. The accused testified and called no other witnesses.

[5] The defence concedes that the version of events testified to by Z.A., if accepted, makes out the alleged offence.

[6] The principal issue in this case is whether I am convinced beyond a reasonable doubt that O.M. sexually assaulted Z.A. Resolution of that issue requires that I assess the evidence as follows: if I believe the accused's denial, I must of course find him not guilty. Even if I do not believe him, if his testimony, viewed in the context of all the evidence, leaves me with a reasonable doubt I must find him not guilty. If his testimony does not leave me with a reasonable doubt, I must ask myself whether the evidence that I do accept convinces me beyond a reasonable doubt of the guilt of the accused. Then, and only then should the accused be found guilty. R. v. W.D., [1991] S.C.J. No. 26.

B. EVIDENCE

(a) The testimony of Z.A.

[7] Z.A. gave a statement to the police on November 26, 2018. This statement was videotaped. The videotape formed part of her testimony at trial pursuant to s. 715.1 of the Criminal Code.

[8] According to Z.A., who at the time was a student at W., on Friday afternoon, November 23, 2018, she was with some friends at the Burger King at Markham and Lawrence. She saw the accused, whom she vaguely knew from her former school, waiting at the bus stop. She decided to go talk to him and see how he was doing. This was the first time she'd seen him in over a year.

[9] They talked for about 10 minutes then the accused asked her if she would like to accompany him to the park. She agreed.

[10] On their way to the park they shared some small talk about school. The accused then asked her if she would accept if he were to ask her to be his girlfriend. She said she would if he took the time to get to know her.

[11] Once at the park the accused asked her if she wanted to have sex. She told him she was "not okay with doing it here". He tried to convince her then took her down the stairs to a chain-link fence. He either licked or kissed her near her right breast then took her sweatpants, underwear and shoes off in one fell swoop. He laid her on the ground, dropped his pants to his knees, spit on her vulva then had sexual intercourse with her. He then tried to get her to perform oral sex on him. She resisted this although his penis briefly touched her lips. He again had intercourse with her.

[12] She did not consent to any of this sexual activity.

[13] After about two minutes Z.A. began to feel pain, noticed she was bleeding, and pushed the accused off her, telling him she "didn't want to do this anymore". He had not ejaculated. She got up, got dressed and went home, arriving around 5 pm. Her parents were not yet home.

[14] On her way home Z.A. continued to bleed from her vagina. Once home, she saw that there was blood on her sweatpants and on her underwear. She put her sweatpants in the washing machine and washed her underwear by hand, as was her habit. When she was finished washing her underwear there was still some blood on them.

[15] That evening she spoke on the phone with her friend A.T. and told her what had happened. On Monday, on A.T.'s advice, Z.A. went to see the guidance counsellor after lunch and told her what had happened. The guidance counsellor involved the vice-principal who called police.

[16] Some further pertinent details were revealed on cross-examination.

[17] While the accused and Z.A. were both at GB middle school, her friend, much to the dismay of Z.A., had begun a rumour that Z.A. had a crush on the accused. Z.A. denied ever having a crush on him and tried to quash the rumour.

[18] Z.A. knew that the accused had a crush on Ti., who was friends with an enemy of the accused named Ty.

[19] Although she testified at trial that the accused licked or kissed her bare skin, she told police that he had done this over her clothes.

[20] She never told the police that her lips had touched the accused's penis. She testified that this was because she forgot to give the police this detail.

(b) The testimony of A.T.

[21] A.T. and Z.A. were very good friends. A.T. saw Z.A. at the bus stop on Friday afternoon, and she seemed fine. She received a text from Z.A. that evening and called her. Z.A. was distraught and in tears. Z.A. told A.T. what had occurred with O.M. A.T. suggested that Z.A. tell the guidance counselor. Z.A. was hesitant at first but agreed. Z.A. seemed fine over the weekend and they exchanged texts.

[22] Z.A. reported to A.T. on the phone on Friday evening that blood was gushing from her vagina. A.T. thought that Z.A. was exaggerating because she was afraid.

[23] Several days before the trial A.T. approached Z.A. and asked her to recap her story for her and she did so.

(c) The testimony of the accused

[24] O.M. was 16 years old when he testified. He was 15 years old on the Friday afternoon in question.

[25] O.M. was born in Iraq. His father died when he was very young. O.M., along with his mother and brothers, fled to Turkey then came to Canada as refugees. O.M. suffers from attention deficit hyperactivity disorder and has been on medication for it since sometime in 2018.

[26] O.M. began his testimony in English. I was having some trouble understanding him and I gave him the opportunity to testify in Arabic, since an Arabic interpreter had been present throughout the trial. O.M. began to testify in Arabic but it soon became clear that his Arabic was no better than his English, which itself was poor. He quickly reverted to testifying in English and did the best he could.

[27] He first met Z.A. when he was in grade 8, a grade ahead of her at GB middle school. He did not like her, and they were never friends. He got in a dispute with her once when her friend asked him if he liked Z.A. He recalled Z.A. bullying him on one or two occasions.

[28] Once into grade 9 the accused went to C. Collegiate. A year later, Z.A. graduated from GB and went to W. for grade 9.

[29] On November 23, 2018 the accused did not go to school. Late in the afternoon he went to the bus stop near the Burger King at Lawrence and Markham to meet someone he had met on-line playing video games. He had never yet met this boy in person.

[30] While waiting he saw a group of other kids that included his school enemy, Ty.; Ti., whom the accused had a crush on; and Z.A. Several of these kids got on the bus while he waited for his video game friend.

[31] Z.A., whom he had not seen in over a year, came over and started to ask the accused about school. The accused answered her questions and asked some of his own so as not to appear rude.

[32] When it appeared as if his friend was not coming, the accused decided to leave and go home via the park, where he thought he might see some of his friends. He told Z.A. he was going to the park and she asked if she could come along. The accused said yes.

[33] As they walked to the park together the accused had his hands in his pockets. Z.A. put her head against his upper arm and put her arm through his. She asked him if he still liked Ti. The accused felt a bit uncomfortable but didn't say so to her. He was used to being touched by girls at school.

[34] Z.A. was texting someone while they walked. The accused asked her whom she was texting, and she said she was texting her mom.

[35] They both arrived at a staircase leading down into the park. She sat on one of the stairs and he stood nearby while they spoke for 3-4 minutes. The accused, feeling awkward, decided to go home, said goodbye to her, and walked down the stairs into the park and then home.

[36] The accused denied ever having sex with Z.A. Several days later the police showed up at his home and arrested him.

[37] The following pertinent details were elicited on cross-examination:

[38] It was the accused's intention upon leaving the bus stop to go to an area of the park called "the canopy". This was where he and his friends would often meet to smoke marijuana. Yet, he and Z.A. walked past the entrance to the park closest to the canopy and instead went to a staircase at a further entrance to the park.

[39] The accused when confronted with this inconsistency, changed his testimony and said that it was his intention to go home, and not to the canopy, when he left the bus stop.

C. ANALYSIS

(a) Introduction

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

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

[42] Ms. Bacchus concedes on behalf of the accused that the acts complained of by Z.A., if proved beyond a reasonable doubt, constitute a sexual assault.

[43] I reiterate that because O.M. testified I must approach the evidence as follows: if I believe O.M.'s denial, I must of course find him not guilty. Even if I do not believe him, his evidence alone, or in conjunction with supporting 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, O.M. must be acquitted. If it does, he must be found guilty. R. v. W.D., supra.

[44] The Supreme Court and the Court of Appeal for Ontario have made it clear that reliance on myths or stereotypical assumptions about how sexual assault complainants are expected to behave is an error in law. The defence cannot rely on generalizations about sexual assault victims even if based on common sense. It is an error in law to conclude how a person would act if sexually assaulted R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2, aff'g 2017 ABCA 237, 55 Alta. L.R. (6th) 213; R. v. A.B.A., 2019 ONCA 124.

[45] That having been said, Z.A.'s explanations for her behaviour after the alleged sexual assaults are properly the subject of scrutiny. The extent to which those explanations are either supported or contradicted by other evidence may have an impact on the credibility of her explanations and on her credibility generally.

[46] The same goes for her pretrial disclosure of the alleged sexual assault. A sexual assault victim's decision as to whether to tell anyone, when to tell them, and whether to tell them everything all at once is a complicated one and is not amenable to scrutiny through the lens of "common sense". R. v. D.D., 2000 SCC 43; R. v. Nyznik, 2017 ONSC 4392. However, inconsistencies between statements to others and a complainant's trial testimony are properly the subject of scrutiny.

(b) The testimony of the accused

[47] There is only one area of the accused's testimony that undermines his credibility, but it is significant. I refer to the inconsistency in his response to being confronted with the fact that he and Z.A. walked past the staircase that would have taken him to the canopy most directly. Ms. Gilmer argues that if it ever was his intention to go to the canopy, he changed his mind and decided to take Z.A. somewhere more secluded.

[48] This argument loses much of its strength when one looks at the pictures of the stairwell and the fence. There is nothing particularly secluded about the place where Z.A. says the accused sexually assaulted her.

[49] The balance of the accused's testimony was not significantly called into question by Ms. Gilmer's cross-examination. Ms. Gilmer argues that the accused has an unrealistically high regard for himself. She points to his assertion that he was never the one to start the many fights he had at school and that he boasted about how all the girls like to touch him. The problem with this argument is that there is not a stitch of evidence suggesting that either of these assertions is not true.

[50] The accused's demeanour as a witness was somewhat odd, but I attribute this to his language difficulties and his social awkwardness, exacerbated by his ADHD.

(c) The testimony of Z.A.

[51] Z.A.'s testimony suffers from some weaknesses.

[52] Her failure to tell the police that the accused's penis had touched her lips I find somewhat odd. This does not strike me as a detail she would have forgotten to tell the police, as she testified.

[53] She told the police that the accused licked or kissed her over her clothes. Yet at trial she testified that he did this on her bare skin. This discrepancy somewhat erodes the reliability of her testimony.

[54] While she told the police and testified that she did not, at any time, want to engage in any sexual behaviour with the accused, the words she used to signal this to the accused lead me to think that it is a realistic possibility that neither she nor the accused is telling the truth. Z.A.'s testimony raises the possibility that, contrary to her testimony, and contrary to the testimony of the accused, she initially consented to sex with the accused. While this is not a defence to the allegations, it is nonetheless inconsistent with her testimony and thus tends to undermine the credibility of her testimony.

(d) The testimony of A.T.

[55] I accept A.T.'s evidence. I am satisfied that Z.A. was upset when she spoke to A.T. on Friday evening. Ms. Gilmer argues that this supports Z.A.'s testimony that she was sexually assaulted earlier that day by the accused.

[56] In my view, that is one possible explanation for her being upset. That she decided, for whatever reason to make a false allegation against the accused would also have rendered her anxious and upset.

[57] It was the accused's testimony that he never had sex with Z.A. at all, thus defence counsel never suggested to her that she did indeed have consensual sex with the accused. Yet, if she did in fact engage, or begin to engage in consensual sex with the accused in the park and come to regret it, then decided to allege to A.T. that she had been sexually assaulted, this would no doubt have left her anxious and upset as well.

(e) The absence of evidence

[58] No evidence was called to corroborate Z.A.'s testimony regarding blood on her clothing. She testified that even though she washed her underwear, blood remained on them after she was done. The record is silent as to whether the police seized Z.A.'s clothing and, if they did, what they did with it.

[59] While thankfully the days when corroboration was required in sexual assault cases are well behind us, an absence of evidence of this nature can nonetheless contribute to a reasonable doubt. R. v. Bero, [2000] O.J. No. 4199 (C.A.) at para. 57

D. CONCLUSION

[60] After examining the testimony of the accused in the context of all the evidence I am not convinced of the accused's denial.

[61] I must then ask myself whether his testimony, in the context of all the evidence nonetheless leaves me with a reasonable doubt.

[62] After having considered the strengths and weaknesses of the three witnesses' testimony and all other pertinent considerations referred to above, I am left unsure whether the accused sexually assaulted Z.A. This state of uncertainty is what it means to have a reasonable doubt. R. v. Lifchus, [1997] S.C.J. No. 77 at para. 39.

[63] Accordingly, the charge is dismissed.

Released on November 20, 2019

Justice Russell Silverstein