WARNING
The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(i) to (iii).
(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.
ONTARIO COURT OF JUSTICE
DATE: 2021-06-09 COURT FILE No.: Central East - Newmarket 3111-998-18-10510
BETWEEN:
HER MAJESTY THE QUEEN
- AND -
H.K.
Before Justice P.N. Bourque
Heard June 8, 9, 2021
Reasons for Judgment
Released on June 9, 2021
Counsel: G. Gill..................................................................................................... counsel for the Crown H. Bassi.......................................................................................... counsel for the Defendant
BOURQUE J.:
Background
[1] The defendant is charged with sexual assault, contrary to s.271 of the Criminal Code, and sexual interference of a person under the age of 16 years, contrary to s.151 of the Code. As the trial progressed, the defence admitted that there were no issues of identification. It was the theory of the defence that while the defendant and the complainant had met on one occasion, that I should have a reasonable doubt that second meeting and thus the assault, happened at all.
L.E.
[2] ...was 13 years old in July of 2018. She is 16 years old now. Her evidence consisted of her video statement to the police (admitted under s.715) and further direct evidence and cross examination. Filed as an important Exhibit was a series of text messages between herself and the defendant.
[3] She lived on a suburban street in Mississauga with her family. She stated that she liked to go for walks alone late at night. She said that she liked it because it was calm and “no one to look at you or hit on you”. One night a man in a car called to her and after some conversation, she got into a car with two men. She did not know why she got into the car with two strange men. They drove around for an hour and the men were doing cocaine. In her evidence, she also spoke of them doing other drugs.
[4] She then went into another car with one of the men (who is the defendant) and they talked. She said that “nothing happened”. They drove around for an hour or two. She was returned home at around 6 in the morning. They exchanged contact information.
[5] Part of her evidence dealt with a series of text messages over two or three days. The complainant stated that these messages were the entire communication with the defendant outside of their personal meetings.
[6] The complainant stated that she met with the defendant a second time. She believed that the desire to meet was mutual. In her text messages, Exhibit 3, it is clear that she is approaching the defendant to have a further meeting. It is also clear that she wishes him to give her cigarettes.
[7] She stated that she met the defendant a second time which was “maybe two days after the first time”. She then stated that she had texted him and he said that he was in the area and she went to meet him. She confirms in her evidence that they text to set up the meeting. It is near her house in the early morning hours and they drove around alone for several hours, until 5 or 6 in the morning.
[8] She stated that he asked her about what she liked in sex. She stated that while sitting in the passenger seat (defendant was in the driver’s seat), he reached over and put his hands around her neck. She stated that it was not very painful. She stated that he began to kiss her neck and kissed and bit her breasts. She stated that she “froze” but intentionally told him to stop and he did and he drove her home. She stated that she told the father of a friend of hers some days later and that is how this matter came to the attention of the police.
[9] She was cross-examined. As a general matter, she would often reply to questions (both from crown and defence) that a certain suggestion “was a possibility but she could not remember”.
[10] It became clear that there were no text messages between them regarding this second meeting. There were messages about a possible meeting, but the witness fell asleep at home and there was no actual meeting.
[11] When asked about this, the witness then stated that perhaps they met by accident on the second meeting. She finally stated that she had no recollection as to how she met up with him for the second meeting. There were no messages before the meeting (setting it up) and none after the meeting. It was noted in re-examination that she, in fact, told the police that the second meeting was set up with text messages and she even spoke of the general content of some of the messages. The witness was again asked by the Crown if any of her text messages could have gone missing and she did not think so. She also could not explain why she had told the police about text messages which did not exist and why she now thought that they could have met up by accident.
[12] In the trail of text messages is some discussion about her age. The witness insists that she told him about her age in the first meeting. In any event, he inquires about her age in the text messages, and she say that she is 13. He asks for some ID and she says that her mother has it but sends him a transit pass with her picture and name but does not state her date of birth. He suggests that perhaps she is a cop. She suggests it back to him.
[13] With regard to the second meeting, the witness did not remember much of any detail. When asked about various scenarios she would add some details, but she also said she had very little recollection of any of the details.
M.O.
[14] …is an adult friend of the witness L.E. She told him about these events about one month later. He convinced her to go to the police.
Analysis
[15] The issue in this case is clear. Did the defendant meet the complainant on the second occasion, and if so, did some sexual contact occur? That defendant admits that any sexual contact between the defendant (an adult man) and the complainant (a 13 year old girl) would constitute the actus reus of the offences as charged. The witness made it clear in a text that she was 13 years old. Other than seeking some confirmation of that fact, the defendant did not express doubt or incredulity in his text messages.
[16] As stated in R. v. Lifchus, [1997] 3 S.C.R. 320:
The burden of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence:
Reasonable doubt is not a doubt based upon sympathy or prejudice:
Rather, it is based upon reason and common sense;
It is logically connected to the evidence or absence of evidence;
It does not involve proof to an absolute certainty, it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and
More is required than proof that the accused is probably guilty - a (Judge) jury which concludes only that the accused is probably guilty must acquit.
[17] The complaint seemed a sincere and very intelligent young woman. She appeared to be very earnest in her assertion that the second meeting and the events in the car happened. I take into account she was 13 when these events happened and is barely 16 years old now. Like all witnesses and especially for young witnesses, minor discrepancies should not affect general credibility.
[18] I was concerned about her lapses of memory on many occasions and her default to the position that she could not remember or does not remember to the best of her recollection. These events are almost two years old and I take that into account. With regard to the recitation of the events of the alleged second meeting, she did add in her testimony two important facts, that of the statement that the defendant also wished to “spank” her and the fact that on leaving, he kissed her.
[19] My greatest concern is the fact that while she admitted that all of her communications with this defendant were by text – she admitted that no texts of her interaction with the defendant were missing – there were no texts specifically setting up this meeting. No specific meeting place or time was set. I am also concerned that in her interview with the police, she was sure it had been set up with text messages. When confronted in cross-examination that this was not the fact, she then stated that they had met by chance and then after some pressing, stated she really did not know how it had been set up.
[20] The actions of this defendant who after having this (obviously) young person in his car in the early morning hours, would seek further contact is quite disturbing. Having said that, I am dealing solely with two charges of sexual assault and unwanted touching of a young person. What his intentions were with regard to future meetings with this young person, are not known to me. They may have been malevolent. However, that is all speculation, and I cannot base my decision on what might have happened.
[21] I must decide whether the discrepancies that I have noted above, in the evidence of the complainant, are so great that I am left with a reasonable doubt as to her allegations of the assault in his car.
[22] I find that I cannot resolve the doubt that I have in her evidence. While most of the discrepancies can in themselves be explained away, there are many of them and their accumulation can lead to doubt. Of most concern is the fact that she appeared to be so sure of how the second meeting occurred and she did not retreat from this until confronted in cross-examination. Even then, she initially gave an explanation (met by accident) that she eventually admitted was more of a guess.
[23] I believe that all the communications between the young person and the defendant were by text messages. I note that the text message exhibit indicates that her phone does not have a SIM card and she could not make or receive phone calls on her device. There is no text message that any second meeting ever took place and her attempts to provide some type of explanation for this add to my doubt.
Conclusion
[24] As a result, I find the defendant not guilty of all the charges.
Released: June 9, 2021
Signed: “Justice P.N. Bourque”