DATE: 2021.07.29 St. Catharines
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
JORDAN BOLGER
Before Justice Fergus ODonnell
Reasons for judgment released on 29 July, 2021
Counsel: Mr. Todd Morris..................................................................................................... for the Crown Mr. John Lefurgey................................................................ for the defendant, Jordan Bolger
Fergus ODonnell, J.:
Overview
[1] Jordan Bolger is charged with sexual interference and sexual assault, arising out of a series of events in relation to a young girl, E.B.,[^1] who was fifteen years old at the time of the trial. The basic allegation is that Mr. Bolger was with E.B. and others at a local waterpark and whilst in one of the hot tubs he tried to put his hand under her bathing suit in the area of her vagina, ultimately succeeding and holding his fingers there for a couple of seconds. The information alleged an offence date range of five years, although it was not alleged that the conduct spanned such a long time.
[2] The only witnesses at trial were E.B. and Mr. Bolger.
E.B.’s Evidence
[3] E.B.’s evidence was entered through her video statement to the police from February, 2021, by brief evidence in person in chief and by cross-examination.
[4] E.B. said she knew Mr. Bolger as the son of one of her mother’s friends and that he used to work at the waterpark. She first met him at the waterpark, where Mr. Bolger was hosting a birthday party for his younger brother, K., probably K.’s thirteenth birthday, she thought about two years before the interview, which in turn was about half a year before the trial. She was there with her mother, Mr. Bolger’s mother, Mr. Bolger’s brother, K. and Mr. Bolger. E.B. knew K. This two-day, overnight visit was the first of three visits E.B. made to the waterpark with Mr. Bolger. The second and third visits appear to have been just day-trips.
[5] After spending most of the first day of the first visit in the room shared by all of the guests, E.B. said they went down to use the waterpark facilities in mid-late afternoon. She used the slides, the wave pool, the sauna and the hot tub. The two mothers spent time away from the others. Nothing inappropriate happened on the first day, or more precisely, “it didn’t really happen that day it mostly happened the day after.”
[6] On the second day of the first visit, E.B. said, the two mothers headed off for food or to use the adult swimming facilities, leaving E.B. with K. and Mr. Bolger. She said she, K. and Mr. Bolger went to the hot tub a lot on the second day and sat there. She said there were other people around. She said that, while in the hot tub, Mr. Bolger kept trying to touch her, she would move away and he would keep moving towards her. She said that, “he didn’t touch me the first few times I went to [the waterpark], but the last time he did.” In context, this appeared to be a reference to her having been at the waterpark with Mr. Bolger on a total of three occasions, the first one being K.’s birthday party. E.B. said that K. was with them and I took E.B. to be drawing a distinction between attempts to touch her crotch area and ultimately one successful touching on the last visit. On that last occasion, she said, Mr. Bolger touched her on her vagina under her bathing suit for a couple of seconds. By this time they had been at the water facilities for about four hours and it was getting close to time to leave. She said she tried to stay close to K.
[7] E.B. testified that Mr. Bolger drove her home at the end of the first trip and that on the way he asked her if she wanted to stay over at his house, which she declined.
[8] In cross-examination, E.B. initially did not recall Mr. Bolger’s girlfriend being with them for K.’s party visit, but readily agreed that she was staying with Mr. Bolger in the loft of the room. She said that neither Mr. Bolger’s young son nor K.’s two friends were present on that occasion. She agreed that she was free to get out of the hot tub if she wished and that K. was always in the hot tub any time she was in it, which amounted to three or four times on that day. It was usually Mr. Bolger’s idea for them to use the hot tub. She agreed that she had not told any of the lifeguards what Mr. Bolger was allegedly doing to her and that she had not gotten out of the tub to avoid him or moved to another segment of the tub.
[9] E.B. was insistent that she had been to the waterpark with Mr. Bolger twice after the birthday party, not just one more time. The second time, she said, E.B.’s mother had told E.B. that Mr. Bolger wanted her to go. She could have declined but could not say why she did not; she wanted to go. She said that Mr. Bolger picked her up and K. was already in the car, but Mr. Bolger’s son was not. She had only ever seen his son at Mr. Bolger’s house on the third trip to the waterpark. They had gone there to put on their bathing suits.
[10] E.B. agreed that on the second trip to the waterpark she had the option of doing other things rather than go in the hot tub with Mr. Bolger, but said she got in the hot tub because she was scared. He touched her leg and tried to touch her bathing suit but not successfully. That happened more than once on the second trip. Mr. Bolger’s brother, K., was in the hot tub once on the second visit, but not the other time on that visit because he was on the waterslide. She agreed she could have gone to the slide also. She said she got in the hot tub because she was scared and stayed in it because she was scared.
[11] E.B. said that she was invited to the waterpark a third time. She did not want to go and told her mother this, but her mother insisted. She had not told her mother why she did not want to go. She said that Mr. Bolger tried to touch her in the hot tub a few times on that third visit. There were people around and she could have simply gotten up and left, she said. She could have simply not gotten in the hot tub to begin with.
[12] In re-examination, E.B. said she kept getting in the hot tub because she was confused and scared. She otherwise enjoyed her time at the waterpark.
Mr. Bolger’s Evidence
[13] Mr. Bolger testified that he was an employee at the waterpark for about two years. Two of the perks of his employment were that he was allowed a limited number of guest passes from time to time and he could get room discounts or upgrades if he stayed over.
[14] Mr. Bolger said that both his girlfriend and his son attended K.’s birthday party, but he took his son back to Welland to his mother’s house at the end of the first day. He said he would typically use either the adult or family hot tubs, the former being hotter and restricted to sixteen years old and above. His girlfriend would take care of his son if he used the adult hot tub. On the second day, it was Mr. Bolger, his girlfriend, his son, (who had come back after spending the night at his mother’s home), his brother K. and K.’s friends B. and E. He said that E.B.’s mother was present on the second day but not at the water facilities.
[15] Mr. Bolger said he had no specific memory of being in the hot tub by himself or with others, but it was the sort of thing he would have done. He gave a straight denial of ever trying to touch E.B.’s vagina and he denied having asked her to stay over at his house on the way home from the first trip to the waterpark.
[16] Mr. Bolger recalled one other trip to the waterpark that included E.B., a trip when he had custody of his son again and had planned to bring his girlfriend and brother, but his girlfriend had to work so they had a spare pass. It was his brother who suggested E.B. accompany them to use the fourth pass. Mr. Bolger said a fourth visitor was helpful because he would have to care for his young son and without a fourth person his brother K. would be unable to use the two-person rides. Mr. Bolger said he had never been to the waterpark with his brother without his son being present also.
[17] Mr. Bolger was uncertain if there was a third trip involving E.B., but he was adamant that E.B. had never been to his house; he said that none of his brother’s friends had ever been to his home. It would not make sense for E.B. to go to his house to get changed because there are change rooms at the waterpark, he said.
Has The Crown Proved Its Case Beyond A Reasonable Doubt?
[18] This is a criminal trial and certain basic rules and principles govern. It is often thought that a criminal trial’s function is to determine “what happened”, but that is not, strictly speaking, the case. The function of a criminal trial is to determine if one party’s version of what happened, the Crown’s, has been proved beyond a reasonable doubt, which is not at all the same thing as determining what happened, although there is an obvious overlap.
[19] The criminal trial process is asymmetrical, that is it imposes different burdens on the parties. The defendant, Mr. Bolger, has no burden. He can stand mute and require the Crown to prove its case. In order to prove its case, the Crown cannot simply show that its version of events is more likely than other versions, it must show that its version of events, i.e. that the defendant committed a sexual assault/sexual interference on E.B., has been proved beyond a reasonable doubt, which is a very high standard of proof.
[20] This asymmetrical structure of the criminal trial process is a bedrock principle of our system. It is rooted in the realization that to condemn a person for having committed a crime is a very serious matter and that such condemnation should only come if one is satisfied to a very, very high degree that the person’s guilt is the only reasonable conclusion. In the words of G.K. Chesterton, ‘it is a terrible business to mark a man out for the vengeance of men”, and it cannot be done lightly. That is why we have the concept of proof beyond a reasonable doubt, in order to minimize as much as is reasonably possible the risk of condemning an innocent man.
[21] There is, of course, a price society and individual complainants or victims pay for this structure, namely that some people who are factually guilty will be found not guilty in law. Depending on the nature of the case, this “unjust” outcome will likely happen more in some types of case than in others. Domestic violence, for example, usually takes place in private, often leaving two competing narratives of what happened with no, or very little, external evidence to give greater strength to one version than the other, never mind to take the Crown’s narrative beyond reasonable doubt. Even in domestic violence cases, however, there will often be extrinsic evidence such as conflict overheard, 911 calls, injuries, damage to property and the like.
[22] The area in which the burden and standard of proof likely has the greatest impact is in the area of sexual violence, and by “sexual violence” I mean all offences in which the sexual integrity of a victim is compromised by another person. Here again, the alleged offence most commonly takes place in private; the allegations here, while not in a private place, were allegedly clandestine and low-key. Perhaps more than any other kind of offence, sexual offences especially very often involve a “he-said, she said” scenario. As a result, it is in these kinds of offences that the burden and standard of proof are likely to have the greatest impact in the sense of defendants who are factually guilty being found not guilty because the available evidence is not sufficient to dispel reasonable doubt.
[23] That is not to say that it is impossible to obtain a conviction for an offence when it is effectively a case of the complainant’s word against the defendant’s word. As was clearly stated by the Court of Appeal for Ontario in R. v. J.J.R.D. (leave to appeal dismissed: ):
[53] …. The trial judge rejected totally the appellant’s denial because stacked beside A.D.’s evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. 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.
[24] Every case depends on its own facts and evidence. It goes without saying that the fact that it is legally possible for the Crown to make out a case beyond a reasonable doubt based on the evidence of a complainant against the evidence of a defendant does not necessarily mean that that will be a necessary or even routine outcome. J.J.R.D. is an extremely important decision, but one must always keep in mind the risk that over-frequent resort to J.J.R.D. to resolve cases does run the risk of turning a criminal trial into a credibility contest, which criminal trials are not and cannot become. The only “either/or” analysis that is permissible in a criminal trial is either the Crown has proved its case beyond a reasonable doubt or it has not; there is no room for “either the complainant’s version or the defendant’s version” must be true.
[25] The correct structure for decision-making in a case where a defendant has testified is set out by the Supreme Court of Canada in R. v. W.(D.):
a. If I believe the evidence of Mr. Bolger (his denial of any wrongdoing), I must acquit him; b. Even if I do not believe his evidence, if it leaves me with a reasonable doubt about his guilt, I must acquit him; c. Even if his evidence does not convince me or leave me with a reasonable doubt, I must still ask if I am satisfied beyond a reasonable doubt of his guilt, based on the evidence I accept.
There is no magic incantation judges must follow in their reasoning, so long as the underlying principles above are honoured in the process of adjudication.
[26] This case obviously involved the evidence of a fifteen-year-old child testifying about events that allegedly took place a few years earlier (the only reasonable certainty is the month of K.’s birthday (December), as neither E.B. nor Mr. Bolger recalls with precision what year or what birthday the party was held for). It is clear that the evidence of children testifying about events when they were children is not to be measured as one would measure the evidence of an adult:
[114] …. There was a time when the evidence of children was regarded as inherently unreliable and therefore to be treated with special caution. As the Supreme Court of Canada determined a generation ago, that time is long past. It is now clear that it is wrong to assess the testimony of a child in accordance with the standard applicable to an adult. As Wilson J. recognized in R. v. B.(G.) , “[w]hile children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.” Inconsistencies about peripheral matters must be assessed in the context of their ages at the time of the events about which they are testifying. (R. v. F.B., 2019 ONSC 973) (citations omitted)
[27] Reference was made to how E.B. reacted to the alleged assaults, including the fact that she continued to go back to the waterpark with Mr. Bolger and continued to go into the hot tub with him, despite the alleged pattern of molestation or attempted molestation on his part. It is a perilous path to measure a sexual assault complainant’s testimony against any assumed or expected “normal” response of a victim of sexual assault. While such stereotypes of “normal” response figure prominently in courts’ analysis years ago, it is now more fully understood that such reactions cannot be presumed to match the trier of fact’s concept of “normal” or of “common sense”. It is in the nature of trauma that the victim’s reaction may not seem normal or sensible to another party. This is all the more so when the alleged victim is a child since, quite apart from any trauma reaction, a child does not have the benefit of judgment, intellectual development, awareness, autonomy and power that will more likely be hallmarks of an adult witness.
[28] The Alberta Court of Appeal commented on this issue in R. v. A.R.D., 2017 ABCA 237, as follows:
[58] In other words, absence of avoidant behaviour or a change in behaviour as a generalization is logically irrelevant and as such, cannot form the basis of a credibility assessment leading to reasonable doubt—because we know that all sexual assault victims behave differently. This is all the more so when dealing with child victims who often fail to make early disclosure and may attempt to normalize behaviour for any number of reasons. This record speaks to those reasons—the complainant resided in the home of the alleged perpetrator and in her words, it “changes everything . . . [w]hen people know”. While it might appear logical to suggest that a victim of sexual assault will choose to run away or distance themselves from an assailant, relying on failure to do so, particularly when dealing with a child complainant, is simply incorrect.
A.R.D.’s appeal to the Supreme Court of Canada was dismissed: R. v. A.J.R.D., 2018 SCC 6. In the present case, there may be any number of reasons why the complainant reacted as she says she did, including her relationship with Mr. Bolger’s brother, her mother’s relationship with Mr. Bolger’s mother, the age discrepancy between her and Mr. Bolger, fear of making a scene or even the powerful attraction of a waterpark adventure to a child. All of these possibilities are to some extent speculative in the present case, but it is the very existence of such reasonable possibilities that demonstrates the wisdom in not viewing the absence of avoidant behaviour after a molestation as undermining a complainant’s testimony.
[29] This does not mean that a complainant’s reactions can never have a place in assessment of credibility or reliability. For example if the complainant testifies to a manner of reacting and that testimony is found to be unreliable by virtue of other evidence, the complainant’s credibility or reliability could be affected. That, however, arises not from the “normality” of the reaction, but only from the inconsistency.
[30] There was no fatal flaw in Mr. Bolger’s evidence. He testified in a straightforward, non-combative manner, in both chief and cross-examination. He was not materially moved in his evidence. There was no internal inconsistency or external illogic in anything he said. The Crown suggested that his credibility was undermined because he recalled a lot of specific details, such as the names of K.’s two friends but could not say definitively if he was in the hot tub with E.B. I do not think there is anything compromising in that: the two boys were his brother’s best friend and the neighbour from across the street, the sort of people one might remember long-term. With respect to whether or not he was in the hot tub with E.B., Mr. Bolger certainly didn’t deny it and readily admitted it was entirely likely that he did. Other than if he had molested her, which would require circular reasoning on my part, there is no particular reason he, as an adult who appeared to have made frequent use of the waterpark would recall E.B., who seemed to be a more remote acquaintance of his brother K. than the other two boys were that the Crown referred to.
[31] There was no illogic in Mr. Bolger’s testimony as I understood it. His testimony that it made no sense for him to drive E.B. to his home to change because there were change facilities at the waterpark, sounded logical (although if E.B. is to be believed there might be a more sinister interpretation of going to his house, but not one that rises beyond speculation). E.B. accepted that Mr. Bolger’s girlfriend was with them on the birthday-party visit, when prompted on that issue, having forgotten it originally. Whether or not Mr. Bolger’s son was with him every time he attended the waterpark, as he said, is unknowable as it is his recollection against E.B.’s, but the rationale for needing a fourth guest on the last occasion so that his brother would have a companion for two-person rides makes sense. Ultimately, in a case such as this, which involves a denial of unlawful behaviour, there is only so much that a defendant can say beyond asserting that it did not happen.[^2]
[32] What, then, of E.B.’s evidence? In her police video and in her testimony in court E.B. came across as very shy and nervous, none of which is surprising given her age, the locations and the topic she was discussing. E.B.’s reticence was such that in her police interview a female Family and Children’s Services Worker was required to substitute in to replace a male detective before E.B. would share her story. She was not shaken on any material point, in my view. Her initial failure to recall Mr. Bolger’s girlfriend being at the birthday party strikes me as a peripheral detail from a long time ago in a child’s life and she would likely be as unmemorable to E.B. as E.B. would generally have been to Mr. Bolger. She came across as having no malice and no agenda, with evidence that was free of any patent signs of exaggeration. Her testimony about Mr. Bolger asking if she wanted to stay over on the one occasion is certainly consistent with the nature of the underlying allegations. Her testimony, measured as one should measure the testimony of children, was consistent and compelling.
[33] I have addressed already the reasoning peril implicit in wondering why a person claiming to have been molested (or attempted to be molested) would return to the scene of the crime with the alleged abuser repeatedly. I accept Mr. Lefurgey’s reference to a person getting bitten by a piranha not being likely to get in the same water again, but in the context of sexual assault it is ultimately a false equivalence in light of our growing understanding of how variable, contextual and unpredictable individual reactions to various types of trauma and predation can be. That is all the more true of a child.
Conclusion
[34] I am of the view that E.B.’s evidence as I have described it is a more reliable version of events than Mr. Bolger’s. I would go so far as to say E.B.’s description of what happened is substantially more reliable than Mr. Bolger’s denials and that she was probably subjected to the molestation and the attempts she described. Having said that, when I keep in mind that the standard of proof at a criminal trial is not an “either/or” standard or a “probably” standard but rather the very exacting standard of proof beyond a reasonable doubt, the evidence before me falls somewhere short of that standard. I cannot comfortably conclude that the persuasive force of E.B.’s evidence is sufficient to overwhelm Mr. Bolger’s evidence in the sense described by Doherty J.A. in the Court of Appeal in J.J.R.D.
[35] I find Mr. Bolger not guilty of both counts.
Released: 29 July, 2021
Footnotes
[^1]: There is a publication ban in effect pursuant to section 486.4 of the Criminal Code, prohibiting the broadcasting, publication or transmission of any information that might identify the complainant directly or indirectly. This judgment is intended to comply with the restriction so that it may be published. [^2]: Mr. Bolger’s criminal record was put to him. It was a record for similar offences. Ultimately, the question before me is whether the Crown has made out its allegations in relation to E.B. beyond a reasonable doubt. In my opinion, Mr. Bolger’s specific record does not assist me in making any determination about his credibility; its only ‘value’ here would be to demonstrate propensity to commit offences of this nature which, of course, is an unacceptable use.