DATE: January 8, 2021 Court File No. 2811-19-33015

ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

MICHEL VARALO

REASONS FOR JUDGMENT

BY THE HONOURABLE MISTER JUSTICE G. WAKEFIELD

on January 8, 2021, at OSHAWA, Ontario

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO S. 486.4 OF THE CRIMINAL CODE OF CANADA

APPEARANCES:

N. Trbojevic Counsel for the Crown A. Richter Counsel for Mr. Varalo

Wakefield, G. (Orally):

[1] Michel Varalo stands charged that on the 13th day of October, 2018, he committed a sexual assault, sexual interference, and sexual invitation on the same underage complainant. The fourth charge was withdrawn by the Crown.

[2] The Crown case consisted of testimony by the complainant and her father. The defendant did not testify so I must assess the case on the basis of the third branch of W.(D.) and whether the Crown has met the high burden of proof beyond a reasonable doubt.

[3] The complainant was testifying to events which occurred two years earlier, but in the context of the admission of her video statement taken November 5, 2018.

[4] The complainant testified the defendant is the brother of a friend of her father. On the date in question, she and her family drove to the defendant’s brother’s house to watch a hockey game. She advised that she was still 14 at the time.

[5] She describes going outside of the house in order to chat with her boyfriend when the defendant followed her out. It is not clear whether she was still on the phone with her boyfriend or whether the boyfriend’s phone had died when she described the defendant coming up to her and engaging in conversation.

[6] The defendant is described inquiring if she wanted a job making $1000 a weekend. She described responding with general questions about how would she get to the job, whether within walking distance or would she need to take a bus. He clarified that the job was “sucking dick”, and wouldn’t it be nice to have $10,000 to buy whatever she wanted. She described saying no, and could he change the topic. He did so briefly, then would return to the job offer.

[7] The complainant describes then getting a text from her boyfriend while seated in the chair. She returns back inside, then goes back outside to continue chatting with her boyfriend in private. She describes the defendant following her back out and asking her to consider the job idea, which now included the making of pornographic movies, detailing that in Asia there would be no problem about her age.

[8] She returns inside the house and then hears the defendant suggesting to her father that she could come up one weekend to stay with him and he would teach her his trade of drywalling, initially, the defendant suggesting that she could take the bus up to Barrie and he would meet her, then suggested the father could drive her up and drop her off where she could stay the weekend with the defendant, then further suggesting the parents could come up and stay over as well.

[9] Later, the complainant went outside to chat with her boyfriend again when the defendant followed her out. The hockey game was finishing or over by now and everyone was finishing off their beers and saying goodbye. She describes that while outside, the defendant touched her thigh, and on the video, she is seen making a stroking motion up and down while disclosing this touching. She is specific about the defendant using the right hand to touch her left thigh. While outside, the defendant is described as crooking his finger and pulling the waistband of her pants away. That ceased as the rest of the people came out, but not before giving the complainant $50 and telling her not to tell anyone.

[10] The complainant then described being driven to Barrie by her parents a couple weeks later. She describes being uncomfortable with this. Once at the defendant’s house, he proposes that the parents sleep in his bedroom and he and the complainant could sleep in the living room. She then goes into the defendant’s bedroom and texted her father about what had happened at the defendant’s brother’s house, resulting in the father deciding to drive them home the same night.

[11] The father testified and described a sequence of events paralleling the testimony of the complainant, though obviously not about the conversations between the defendant and his daughter.

[12] The two disagreed on the pretext used to explain leaving the defendant’s residence, albeit in circumstances in which the father expressed that he was unsure of the nature of the pretext. They had different perceptions as to the level of skill the complainant had in construction work skills.

[13] He asserted that once he knew of his daughter’s disclosure, she was not left alone with the defendant in the family vehicle while packing up to leave Barrie. Then again, he was also unsure of the sequence of his returning to the defendant’s house to retrieve bags, or the sequence of his wife retrieving luggage.

[14] Having said that, the opportunity of the allegation of a kiss and a hug in the vehicle outside the Barrie residence when the parents were aware of the complainant’s fears regarding the defendant would be extremely limited, given the parents’ vigilance.

[15] I must caution myself regarding the limited likelihood of that occurring, but balanced with the fact that the complainant was testifying regarding a new allegation based on a two-year-old memory, as opposed to the greater reliability one would expect in giving a statement mere weeks after the allegations.

[16] There was a concession by the defendant that the texting between daughter and father occurred and those texts did exist, and the content of which was the disclosure of the Bowmanville allegations.

[17] The Crown submitted I need to assess the complainant as a child witness as directed by multiple appellate directions. As a principle of law, I agree, but the context here is that the allegations occurred when she was 14 and testimony when she was 16. As I pointed out to the Crown, young charged people in Youth Court between the ages of 14 and 16 do not seem to enjoy the same degree of consideration as the Crown seems to be suggesting should be afforded to a similarly aged complainant. Where I do accept the need to assess the complainant’s testimony in light of her age is in her description of being unsure of her father’s reaction to her disclosing to him, and hence disclosing via text as a more personally comfortable manner of communicating with the father.

[18] Similarly, I accept that in assessing that the complainant’s video statement was lacking some details which emerged from her viva voce testimony, the video statement was in a police station with a male officer in which she is seated at the far end of the couch from the officer’s chair. While the complainant agreed that there was no duress by the officer, that is not the same thing as accepting that she should have had a comfort level and presence of mind so as to be able to itemize and categorize each detail of the allegations during the statement.

[19] An example of this is her gesturing to her mid-thigh during the video statement while verbally describing the defendant hooking her pant waist. In the interview, she was not asked whether her gesture was to the location of the hooking or merely a hand movement depicting the hooking while describing the touching. However, the video does show the complainant’s fingers moving at this point in what could be described as a hooking motion. Indeed, in my view, a complainant should not be expected to explicitly explain each body movement during the taking of the statement, or somehow anticipate two years later to volunteer such explanation at trial.

[20] In my view of the video, it certainly looked as though her finger was in a crooking position, and I find that as a fact. Both at the taking of the statement and at trial, a witness is mostly confined to answering questions by someone who is expected to understand relevancy issues. However, here, her finger movements on her thigh are consistent, as I said, with her description of the defendant’s hooking finger.

[21] In cross-examination, the complainant was open and credible. There was no hesitation in her admission of having been smoking, despite her anticipated parental disapproval. However, I instruct myself that while the demeanour of the complainant in the witness stand may have some relevance of weight, demeanour assessments may reveal more about the trier of fact than that of the witness.

[22] The assertion that the defendant gave the complainant $50 at the first incident and how it was spent was internally consistent and described confidently. I disabuse myself of the father’s testimony regarding what his wife told him on this point as hearsay. As for the father’s reaction to what his wife apparently told him, I do agree with the defendant’s position to this extent, that there is an oddness to his not being told by his wife about the money. His reaction does not assist me in assessing the reliability of the complainant if I disabuse myself of the hearsay corroboration of the money. The safer course is simply to disabuse myself of that hearsay entirely.

[23] I certainly do not see any reliability or credibility concerns over the different opinions father and daughter have as to the daughter’s construction skills or how often she assisted her father. Neither testified in terms of time dockets or diaries, but each described a normal interaction between parent and child working at a common activity. It does not surprise me that teenagers might have an overly impressive view of their own accomplishments or a parent not be aware of how often the child worked with them, given the years of employment compared to the number of occasions of working together. I do not see their difference in opinions on this point undermining the credibility or reliability of either father or daughter.

[24] There is disagreement as to the location of the chair outside the Bowmanville residence, with the complainant describing one near the porch which she used to sit on, and the father saying the chairs are down by the firepit. I assess as less reliable the father’s recollection, two years later, on a point which would have held no importance to him at the time, as compared to the daughter’s testimony, if accepted as being integral to her description of the events in Bowmanville with the defendant. I do not accept that the father’s recollection on this point, especially when given hesitantly, and the context of his memory over multiple visits can undermine either the reliability or credibility of the complainant.

[25] There is the issue of whether the complainant conflated the memories of a conversation in Bowmanville with the visit to Barrie. Clearly, there was a conflict in her recollection as to the location of that conversation regarding the prospect of losing her virginity to the defendant and his description of his experiences at age 13 with an older lady. However, in testifying, the context of that conversation did not change in substance and could be considered a type of grooming endeavour. However, this is an inconsistency which must result in my being especially vigilant in assessing the reliability and credibility of the totality of her evidence.

[26] The defendant also relies on the complainant asserting that there were no further conversations with her father regarding the incidents after leaving Barrie. Over the weeks between disclosing to her father and attending the police station, one would expect some conversation, but given the complainant’s reticence in disclosing to her father in the first place, I can accept any such conversations to be limited and seemingly unimportant to a teenager in response to the officer’s question. That rings especially true in her forthrightness in responding to cross-examination about her drive home and her father asking all sort of questions just like the lawyers were asking in court.

[27] As for the inconsistency of whose cell phone battery died in the initial conversation between the complainant and her boyfriend outside the Bowmanville residence, I assess that as a peripheral inconsistency which should be afforded little weight. The consistency is that there was a cell phone battery issue being described two years after the events, and while it makes more sense that it was her boyfriend’s cell phone which had an issue given the complainant describing the boyfriend texting her to call back once he recharged his phone, I do not accept that this inaccuracy fundamentally undermines the complainant’s reliability or credibility by itself, or is a factor of the totality of her testimony so as to reject her testimony on this basis or as part of a constellation of issues.

[28] Another inconsistency asserted by the defendant was whether she was wearing pants under her pants or shorts under her pants. This area of description is so vague that I cannot assess whether she meant two sets of full-length trousers on top of each other, pants over short shorts, or pants over long shorts. I do note that in the video, when describing the two layers of pants, the complainant’s hands stayed on her upper thigh as opposed to any gesture towards the entire leg, but that gesture is hardly determinative of the nature of the second layer of clothing. The relevant issue here is that she was consistent in her description of having two layers of clothing over her waistband area when describing the defendant’s hooking motions with his finger.

[29] As for the described sequence as to leaving the Bowmanville residence, the complainant recalls waiting for her dad to give her the keys to start up the vehicle, as opposed to actually going directly to the vehicle on leaving the residence. Only upon asking for details is the complainant prompted to clarify things by confirming being seated in the chair that she has consistently affirmed was near the house, and yet again chatting with her boyfriend on the phone.

[30] I also see as peripheral the different recollections as to who was present in the Bowmanville residence for the hockey game and whether there was indeed a funeral the following day, which was one reason for the gathering.

[31] As for the father’s recollection as to the nature of the ruse to leave the Barrie residence, his open admission that he really was unsure as to the story being used hardly amounts to evidence to undermine the reliability and the credibility of the complainant.

[32] I do agree with the defence observation that it appears odd that the father would countenance his daughter going off to a worksite with the defendant despite the defendant’s greater experience in that trade. I instruct myself not to assess that aspect of the allegation in light of my own experience with the criminal justice system and child protection systems and my obvious suspicions about anything, but rather look at this from the point of view of the average person who might not have the exposure to such issues that people involved in the justice system would be exposed to. I do note that the father did quite emphatically say he would not have permitted his daughter to go up to Barrie unescorted.

[33] How should I assess the fact that the complainant simply didn’t tell her father about the incident at Bowmanville when she was first told about going to Barrie, or why she didn’t simply refuse to go to Barrie? The defendant would have me use this as another example of unreliability, yet I must take into account that the relationship between a child and divorced parents can be less secure than that of a child in a traditional structured family. I also take into account that in my experience in family proceedings and child protection matters, children can also be more manipulative of their parents’ vulnerability during and after a marriage breakup. Either way, the fact that she did not disclose immediately, in my view, falls within the danger of assuming how a victim should respond to any sort of criminal assault.

[34] I see an analysis of the complainant’s delayed disclosure or any simple refusal to go to Barrie as indeed falling into the trap of expecting complainants to react in a predetermined way. I do note that the lack of protest of going to Barrie is consistent with the complainant disclosing to her father by text message as a mechanism of feeling more secure or comfortable in talking about it, as opposed to a direct confrontation with her father.

[35] Unlike the defendant’s submissions, I do not see the offer of $10,000 as being inherently unbelievable, but rather, again, a potential example of grooming, and similarly with the suggestion of how nice it would be to have enough money to buy whatever she wanted.

[36] As for the defendant’s assertion that it did not make sense for the defendant to suggest to the complainant that she could get his telephone number from her father, her testimony was not that somehow her father was going to facilitate the sexual activities, but rather only to how to contact the defendant should she be interested, purportedly, I would assume, in learning a trade.

[37] Proof beyond a reasonable doubt does not mean to an absolute certainty, but it is a standard which almost reaches such heights, and has been a very high standard, the burden of which lies solely on the shoulders of the Crown. R. v. Lifchus, [1997] 3 SCR 320, especially at paragraph 27:

First, it must be made clear to the jury that the standard of proof beyond a reasonable doubt is vitally important since it is inextricably linked to that basic premise which is fundamental to all criminal trials: the presumption of innocence. The two concepts are forever as closely linked as Romeo with Juliet or Oberon with Titania and they must be presented together as a unit. If the presumption of innocence is the golden thread of criminal justice then proof beyond a reasonable doubt is the silver and these two threads are forever intertwined in the fabric of criminal law. Jurors must be reminded that the burden of proving beyond a reasonable doubt that the accused committed the crime rests with the prosecution throughout the trial and never shifts to the accused.

[38] Triers of fact, whether juries or judges, must never lose sight of this foundation of a fair trial. In this trial, does the testimony of the complainant rise to the level of proof beyond a reasonable doubt? I have concluded that her testimony does indeed amount to such a high level of proof.

[39] There are acknowledged inconsistencies in her evidence and some conflict with the evidence of her father. I have concluded that those inconsistencies, taken in context as I have referenced, do not erode my conclusion that on the fundamental elements of these charges, her testimony was both reliable and credible.

[40] I find it reliable and credible that the defendant did indeed hook his finger into the complainant’s waistband and pull the band away.

[41] I find credible and reliable the complainant’s account of the defendant discussing her escorting and pornographic movie making while outside the Bowmanville residence. In the context of that sexualized conversation by the defendant, that while his touching her was not a part of her body normally equated with sexual organs, that touching was indeed for a sexual purpose and is proof beyond a reasonable doubt of a sexual assault upon the complainant as set out in s. 271 of the Criminal Code.

[42] The same testimony is proof beyond a reasonable doubt that the touching for a sexual purpose when the complainant was only 14 years of age means a conviction under s. 151 of the Criminal Code.

[43] I find reliable and credible the testimony of the complainant that the defendant did indeed invite the complainant to touch him for a sexual purpose while at the Bowmanville residence in her testimony regarding his saying that if she was 15, he would go down on her. While the invitation could be considered conditional on her current age, in the context of the rest of his conversation, I find that was an invitation for when she was 15 and not conditional.

[44] While I subjectively accept the complainant’s account of the specific invitations by the defendant to teach her about sex, the conflation or confusion as to date, and especially location in Barrie or not, in my view, falls just slightly short of proof beyond a reasonable doubt to make findings of fact in support of the invitation conviction, though in my view, they are well past the requirements for civil liability.

[45] The conviction on this count is based solely on the conversation reported by the complainant as having occurred outside the Bowmanville residence.

[46] Stand up, sir. I find you guilty of all three counts.

The Crown position of whether a Kienapple stay results between Counts 1 and 2?

MR. RICHTER: Thank you, sir.

THE COURT: Is the Crown still there?

MR. TRBOJEVIC: Yes, sorry, Your Honour. Thank you. Are you just - I believe your question was about...?

THE COURT: Whether there is a Kienapple.

MR. TRBOJEVIC: Between the 271 charge and the 151 charge, is that the question?

THE COURT: Yes.

MR. TRBOJEVIC: Yes, I would agree that there ought to be a stay on the 271 charges in the circumstances.

THE COURT: All right. There will be a conditional stay on the 271 count.