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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 212, 212, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct 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 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: 2022 01 14 COURT FILE No.: Chatham 21-1200

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Raymond J. Rosettani

Before: Justice Paul J.S. Kowalyshyn

Heard on: September 2, 3, and November 3, 2021 Reasons for Judgment released on: January 14, 2022

Counsel: Nick Bazylko........................................................................................ counsel for the Crown Nick Cake............................................... counsel for the accused Raymond J. Rosettani

Kowalyshyn J.:

[1] Raymond Rosettani is charged with two counts of sexual assault as against R.C. The offence dates range between February 11, 1986 to December 11, 1988 and December 12,1988 to February 12,1989.

[2] R.C. was between the ages of 11-14 at the time.

[3] A trial was held with the only evidence coming from R.C. and Mr. Rosettani.

[4] R.C. gave detailed evidence about multiple interactions with Mr. Rosettani which involved masturbation and fellatio in the Rosettani home.

[5] Mr. Rosettani does not deny that R.C. attended at his home during the aforenoted period of time. Mr. Rosettani unequivocally denies sexually assaulting R.C. in any way.

General Considerations:

[6] Summary of the Facts – It is important to consider carefully, and with an open mind, all the evidence presented during the trial. I will decide how much or little to believe regarding the evidence of any witness. I may believe some, none, or all of what they have stated.

a) Law – I am guided by the following principles:

a. Presumption of Innocence – Every person charged with an offence is presumed to be innocent, unless and until the Crown has proven his/her guilt beyond a reasonable doubt. The presumption of innocence means that the accused started the trial with a clean slate. The presumption stays with him/her throughout the case. It is only defeated if and when Crown counsel satisfies the Court beyond a reasonable doubt that he/she is guilty of the crime charged.

b. Burden of Proof – The person charged does not have to present evidence or prove anything in this case, in particular that s/he is innocent of the crime(s) charged. From the start to finish, it is the Crown who must prove the person charged guilty beyond a reasonable doubt. It is not simply a credibility contest between the two witnesses.

c. What is a reasonable Doubt? As referred to by the S.C.C. in R. v. Lifchus (1997), 118 C.C.C. (3d) 1 in a summary at paragraph 36: a reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy. It is a doubt based on reason and common sense. It is important to remember, however, that it is nearly impossible to prove anything with absolute certainty. Crown Counsel is not required to do that. A reasonable doubt is one that logically arises from the evidence, or the lack of evidence.

The Supreme Court of Canada stated later that the standard of proof beyond a reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities.” See: R. v. Starr, 2000 SCC 40 at para. 242.

b) Credibility

i) Generally:

In assessing credibility, it is helpful to take into account the commentary in R. v. White (SCC) (1947), 89 CCC 148 at page 151: The general integrity and intelligence of the witness, his opportunity to observe, his capacity to remember, and his accuracy in statement are important. It is also important to determine whether he is honestly endeavouring to tell the truth, whether he is sincere and frank, or whether he is biased, reticent and evasive.

However, the proper approach to the burden of proof is to consider all the evidence together and not to assess individual items of evidence in isolation. It is essential that the credibility and reliability of the complainant’s evidence be tested in the light of all of the other evidence presented; particularly when the Crown’s case depends solely on the unsupported evidence of the complainant and where the principal issue is that witness’ credibility and reliability (R. v. Gostick (1999), 137 CCC(3d) 53 (Ont. CA).

In assessing a witness's credibility and reliability, while I can consider the way a witness testifies, I cannot overly rely on demeanour: R. v. D.P., 2017 ONCA 263, at para. 26, leave to appeal refused, [2017] S.C.C.A. No. 261.

ii) The Evidence of Adult Complainants Testifying about Events When a Child

R.C. is now 46 years of age. He testified about incidents that began some 35 years ago, beginning when he was eleven years of age.

When an adult testifies about what occurred as a child, their credibility is to be assessed according to the criteria applicable to adults. With regard to an adult's evidence regarding events that occurred in childhood, the presence of inconsistences, particularly peripheral matters such as time and location, should be considered in the context of the age of the witness at the time the events took place: R. v. W.(R.), [1992] 2 S.C.R. 122, at p. 134.

That does not mean that I accept R.C.’s evidence uncritically. Rather, I assess the evidence on a common-sense basis, considering the strengths and weaknesses of the evidence presented.

c) Testimony of the Accused

a. Mr. Rosettani gave evidence in this trial. I direct myself in accordance with the dicta set out by Mr. Justice Cory in the SCC decision in R. v. W.(D) (1991), 63 CCC (3d) 397 at pg. 409 as follows:

b. First, if you believe the evidence of the accused, obviously you must acquit.

c. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

d. Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

d) Other legal considerations

The crown submits that notwithstanding a complete denial on the part of Mr. Rosettani that the court can still reject his evidence. There is a line of cases that deal with the rejection of an accused’s denial of any wrongdoing beginning with R. v. J.J.R.D. (2006), 21 C.C.C. (3d) 252 (Ont. C.A.). At para. 53 Doherty J.A. said:

“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.”

The court may reject the evidence of the accused and convict solely on the basis of accepting the evidence of the complainant provided that the court also gives the evidence of the accused a fair assessment and allows for the possibility of being left in reasonable doubt, notwithstanding acceptance of the complainant's evidence. See: R. v. Jaura, [2006] O.J. No. 4157 (O.C.J.); R. v. J.J.R.D., supra; Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (C.A.) at para 77.

An accused person is not entitled to an acquittal simply because there are no obvious problems or inconsistencies in his evidence: R. v. R.A., 2017 ONCA 714 at para 55; R. v. G.C., 2021 ONCA 441 at para. 15

Review of the Evidence

[7] I will begin with a review of the evidence of R.C.

[8] R.C. was born on […], 1975. He was 46 at the time of trial and 11 at the time of the first incident with Mr. Rosettani. He was nearing the end of grade 7.

[9] R.C. was friends with Lee Rosettani, Mr. Rosettani’s son.

[10] R.C. started visiting the Rosettani home on Cecile Ave in Chatham in 1986 along with a number of similarly aged youths. They were either friends of Lee Rosettani or Mr. Rosettani’s other two sons.

[11] The Rosettani house was a hangout or drop in place for all of them.

[12] R.C. testified that he would attend there a couple of times a week. He would go there for lunch, after school, and then also on weekends once in high school. The boys would just “hang out” while there-go for a swim, watch movies, “kid’s stuff.”

[13] Mr. Rosettani also routinely prepared meals for the youths.

[14] R.C. testified that he and the other boys had a good relationship with Mr. Rosettani. He said that Mr. Rosettani was good to all of them. He fed them and gave them whatever they needed.

[15] With respect to the first incident, R.C. said that one night he was sleeping on a couch (L-shape sectional) in the basement of the Rosettani home. He was sleeping on his back. He was awakened by the feeling of Mr. Rosettani rubbing and touching his penis with his hand over his clothing. Mr. Rosettani then pulled down R.C.’s boxer shorts, exposed his penis and masturbated him with one hand to the point of ejaculation.

[16] R.C. said he did not know what to do. He pretended he was still asleep and kept his eyes closed the majority of the time but as he put it, he “obviously peeked to see what was going on.” He was naturally “curious.” This was the first time that something like this (a sexual experience) had ever happened to him.

[17] R.C. could see that it was Mr. Rosettani doing this to him as the nearby hall light was left on, as it always was. He said he could see Mr. Rosettani when he opened his eyes; when he “peeked.”

[18] In addition to seeing Mr. Rosettani he could also tell that it was him by the smell of smoke coming from him, “his scent” as he described it. Mr. Rosettani was the only smoker in the house.

[19] After Mr. Rosettani completed the act, he proceeded to clean up R.C. with paper towels and wipe the ejaculate from his penis and stomach. He then pulled up his shorts and exited the room and went back up the stairs.

[20] R.C. testified that he really did not know what to make of the experience. He was in shock. He wondered if it was his fault that this had happened. At the same time, he said “I knew it felt good.”

[21] R.C. testified about another incident.

[22] He said that his friends often went to the store and would leave the Rosettani home leaving R.C. and Mr. Rosettani alone in the house.

[23] R.C. said he took advantage of the opportunity and laid down on the floor in the kitchen near the living room and pretended to be asleep, waiting and hoping that Mr. Rosettani would approach him and masturbate him.

[24] He said that once Mr. Rosettani saw him laying there, he came over to him, undid R.C.’s pants, pulled out his penis, ejaculated him by hand, cleaned up the ejaculate, and then pulled his pants back up.

[25] R.C. testified that this type of activity happened approximately 30-40 times in total with approximately 20 of them occurring before he turned 14.

[26] With respect to the pattern of the other encounters before age 14, R.C. said that the same thing would happen as the first couple of occasions.

[27] He candidly said, “[Mr. Rosettani] would “pull my pants down, ejaculate me, clean up my cum, and then go on like nothing happened.”

[28] The acts would take place in the living room and downstairs. Nothing like this occurred in the bedroom of Mr. Rosettani until after he had turned 14.

[29] R.C. openly admitted that there were times after he turned 14 that he would pursue Mr. Rosettani for a sexual encounter. He said that if Mr. Rosettani didn’t approach him, that he would go into his bedroom and touch Mr. Rosettani to get him aroused so that Mr. Rosettani would “play” with him.

[30] He candidly stated that he enjoyed the feeling of Mr. Rosettani touching him.

[31] He enjoyed the end result of ejaculation.

[32] He said that sometimes Mr. Rosettani would use lotion to assist in the masturbation.

[33] There was never any discussion between them during or leading up to these interactions.

[34] R.C. testified about one occasion where on one night he entered the bedroom of Mr. Rosettani. He said they both masturbated each other. Mr. Rosettani tried to insert his penis into his anus which he didn’t allow. He believes this occurred when he was 14.

[35] Although there were many times when other individuals were in the house, no one ever walked in on them although there were perhaps 2-3 times when they were almost caught.

[36] R.C. testified that he didn’t want any of the other boys to know what was going on between him and Mr. Rosettani, and for that matter, “anyone in the world.”

[37] R.C. estimated that prior to his 14th birthday Mr. Rosettani performed fellatio on him-approximately 10 times. These incidents lasted 10-15 minutes.

[38] R.C. testified that he also masturbated Mr. Rosettani. He readily admitted that he would take Mr. Rosettani’s penis out of his white underwear.

[39] Mr. Rosettani never ejaculated. He always stopped R.C. masturbating him before that could occur.

[40] The crown asked R.C. if there was approximately 20 times prior to his 14th birthday that the incidents occurred, were there other times that nothing happened when he was at the Rosettani home. He confirmed that was correct. Mr. Rosettani wouldn’t do anything with other people in the home except at night and in the basement.

[41] When asked if anyone else was present during these occurrences in the basement R.C. said that there was usually another person (in addition to himself) sleeping on the L shaped couch. The room was dark however, as previously stated, the hall light was always left on.

[42] R.C. estimated that approximately 10-15 incidents occurred in the basement with about 6-7 of those times taking place before he was 14. The other times, the activity took place in the living room.

[43] R.C. confirmed much of his prior evidence. He answered additional questions and provided more detail about his interactions with Mr. Rosettani.

[44] He confirmed that the same type of incidents occurred over and over. He kept re-engaging with Mr. Rosettani because there was a “good feeling” that came out of it for him and he really didn’t know much different at that age.

[45] R.C. stated that he masturbated Mr. Rosettani about 5 times before he was 14. The majority of the time this took place on the living room floor on the main level, near the kitchen.

[46] With respect to the 20 times before age 14 that Mr. Rosettani masturbated him or performed fellatio on him R.C. stated that he ejaculated each time and that Mr. Rosettani always cleaned up the ejaculate.

[47] R.C. testified that while his eyes were always closed during the sexual interactions with Mr. Rosettani, he would routinely smell the smoke emanating from Mr. Rosettani.

[48] R.C. was asked by the crown if he could describe Mr. Rosettani’s penis.

[49] R.C. said Mr. Rosettani was “uncut” meaning uncircumcised. He also said that it was large in girth and length.

[50] When asked in cross-examination how he would be able to describe his penis if his eyes were always closed, he said “Just by feel.” He was the one who always grabbed it and pulled it out of Mr. Rosettani’s underwear.

[51] In response to another question he recalled pulling the foreskin back on Mr. Rosettani’s penis and exposing the head of his penis when he was performing fellatio on him. He couldn’t recall the number of times he did this explaining that it was something he was trying to put out of his head for the past 35 years.

[52] He said most of the time Mr. Rosettani was in his underwear, his white briefs, when they engaged in sexual contact. Mr. Rosettani would normally wear his white underwear to bed.

[53] R.C. gave specifics as best he said he could as to where he was when the acts with Mr. Rosettani took place and how each of them was positioned.

[54] He provided accurate details of the layout of the Rosettani home, including the outside, which were not disputed

[55] R.C. was asked by defence counsel if he had ever seen Mr. Rosettani use the shower on the main level near the laundry room. He confirmed that he had.

[56] It was then suggested to him that unintentionally there may have been times when Mr. Rosettani was in the washroom naked and that R.C. had come in and seen him and that this was how R.C. was able to describe the appearance of Mr. Rosettani’s penis. He immediately responded “negative.” He never walked in on Mr. Rosettani in the bathroom.

[57] It should be noted that Mr. Rosettani never testified that this ever happened.

[58] R.C. recalled however that Mr. Rosettani had peeked in on him in the bathroom.

[59] He testified that he only realized that what happened to him was wrong when he got older and had a girlfriend. He had an uncomfortable feeling about what he had engaged in.

[60] He was confused about his sexuality.

[61] As a result, he started drinking alcohol in grade 10.

[62] He also began using drugs in high school including marijuana and once in his 20’s used cocaine and ecstasy and as he put it, “quite a few drugs.”

[63] His drinking progressed to him drinking a 26 oz bottle of gin a day straight at one point.

[64] R.C. also testified that he got into a lot of arguments and domestic disputes in his relationships which he attributes to his difficulty dealing with the abuse and confusion.

[65] He said he used drugs and alcohol to cover up and hide his feelings about being sexually abused by Mr. Rosettani. He wanted to feel good instead of being depressed. As he put it , “alcoholism…was my way of covering and hiding it.”

[66] He put himself into rehab in 2018.

[67] He has also engaged in personal counselling to assist him with his feelings.

[68] R.C. has not seen Mr. Rosettani since he was approximately 16 years old. He has not had any contact with him.

[69] He lives in Michigan.

Raymond Rosettani

[70] Mr. Rosettani gave evidence on his own behalf.

[71] He was 78 at time of trial.

[72] He confirmed many of the details that R.C. had testified to re the layout of the house, the attendance by him and other individuals, that his house would be used by a number of boys as a drop in/hang out place, that the door would be left unlocked.

[73] He said his place was “like a YMCA for boys.” He provided food, shelter, and “period[ically] ruled the roost.”

[74] Mr. Rosettani liked all the boys and had a friendly relationship with all of them.

[75] He said he was rarely at his home when his sons had their friends there. His job was very demanding. It was therefore not uncommon for the boys to have their friends over when he wasn’t there.

[76] He was a plant manager for Daymon Aluminum for 6-8 years. He generally worked 7 am to 6 pm and some weekends. Weekends were spent getting caught up on laundry and preparing meals for the week.

[77] Mr. Rosettani was divorced at the relevant times.

[78] He last saw R.C. 30-35 years ago.

[79] He testified that he knew of R.C. but never paid any special attention to him. He wasn’t close to him.

[80] He acknowledged that he was one of the young boys attending at his home as one of his son’s friends.

[81] He steadfastly denied that he had ever been alone with R.C. in his home, whether it was when he was sleeping over in the basement or at any other time.

[82] In cross-examination he said that it was never possible that he was alone with R.C.; “not even one time” he said.

[83] He said it was “pretty common” for the boys (friends of his sons) to sleep over at his place, more so in the summertime. In the school year it would be on weekends.

[84] He said that he would never attend the basement in his house when the boys were sleeping over. He would only go down there if necessary, to settle down any rambunctiousness.

[85] He said that while he was aware that R.C. might have slept at his house at times, he never observed him to do so.

[86] With respect to the allegations of sexual assault, he steadfastly denied that he engaged in any of the conduct alleged by R.C.

[87] He specifically denied that he ever masturbated R.C.

[88] He specifically denied that R.C. ever masturbated him.

[89] He denied that he performed fellatio on R.C.

[90] He denied being interested in R.C. in a sexual manner.

[91] He denied that there were ever any times that R.C. would stay in the home while the other friends went out to play or went to the store.

[92] He said he only rarely interacted with R.C. on a one to one basis.

[93] He never peeked in on R.C. when he was changing to go swimming in the pool.

[94] He said that he rarely joined the boys in the pool.

[95] Mr. Rosettani acknowledged that he was not circumcised.

[96] He disagreed with R.C.’s evidence regarding the girth and length of his penis. Mr. Rosettani said that was a “compliment.”

[97] In cross-examination, Mr. Rosettani agreed that he wore white briefs or “tighty whiteys” but not to bed.

[98] He also never walked around in his home in his underwear when the boys were there.

[99] Mr. Rosettani acknowledged that he smoked cigarettes starting in the 1960’s. He was a heavy smoker. At one point he was smoking 2 packs (20-25 per pack) a day. Mr. Rosettani testified that he did most of his smoking at work.

[100] He quit smoking near the year 2000.

[101] He was asked if he would agree that there would have been the smell of smoke on him when he got home with him being such a heavy smoker. He was reluctant to acknowledge that. He said that he wasn’t aware of it and that everyone has their own opinion.

[102] Mr. Rosettani said he ordinarily wore a dress shirt, tie, suit or sport jacket and slacks to work.

[103] He also said he wouldn’t change his clothes when he got home from work because he immediately became the “chef” and would begin preparing meals for the boys. He would however take off his jacket and tie.

[104] He stated in general terms that he used the same shower that the boys did near the laundry room and that there were always people around when he did.

Credibility Findings

[105] Justice Goldstein said this at para. 37 of R. v. R.A. [2021] O.J. No. 6146 (SCJ):

The most important question in any criminal trial is whether, on the whole of the evidence, a trier of fact is left with a reasonable doubt about the guilt of the accused: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 21. A criminal trial is not a credibility contest. A trial judge does not simply decide which version of events to believe: R. v. Y.(C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 6. As the Court of Appeal stated in R. v. W.(J.), 2014 ONCA 322, 316 O.A.C. 395, at para. 27, in a criminal trial the credibility assessment is not an either/or process where the trial judge is "required to choose a version of the events in order to reach a verdict”.

[106] In this case, I am left with two competing versions of events.

[107] I will first address my findings regarding the evidence of R.C.

[108] I found R.C. to be an honest, straightforward, credible and reliable witness. He never changed his evidence. His evidence was consistent within itself.

[109] R.C. answered all questions directly. He was not evasive. If he didn’t know an answer to a question, he said so. He was willing to acknowledge areas where his memory may not have been crystal clear, but generally speaking his memory was quite good.

[110] In both his examination-in-chief and his cross-examination, he gave detailed evidence about the events and other questions asked of him (layout of house, outdoor area, etc.).

[111] He had a vivid recall of the particulars of the alleged assaults and interactions with Mr. Rosettani. He testified where they occurred, what each of them was wearing.

[112] At times his evidence was delivered in a flat yet raw and brutally honest manner.

[113] Just one example was when he was testifying about the first sexual interaction with Mr. Rosettani. R.C. testified that he really did not know what to make of the experience. He was in shock. He wondered if it was his fault that this had happened. At the same time, he said “I knew it felt good.”

[114] I found this evidence in particular to be very compelling.

[115] R.C. did not embellish his evidence.

[116] He was cross examined extensively about his evidence and his evidence was not impeached in any way.

[117] He was not argumentative, defensive or combative.

[118] R.C. respectfully corrected defence counsel when he disagreed with the wording or categorization being used in the questioning of him.

[119] He testified in a calm manner. He showed restraint and calmness when defence counsel suggested to him that when offering evidence that Mr. Rosettani had peeked in on him once or twice while he was in the shower, that he all of a sudden had a “new memory.” That was because he had never mentioned that in the trial up to that point and hadn’t mentioned it to the police. R.C. politely pointed out that the question had never previously been asked of him.

[120] In short, I was impressed with his evidence and manner which he gave it.

[121] I say this remaining mindful of the danger of placing too much emphasis on demeanour, as previously indicated.

[122] I accept R.C.’s evidence without qualification. It was both credible and reliable.

[123] Naturally, I also have to consider the evidence of Mr. Rosettani because the acceptance of R.C.’s evidence does not mean an automatic rejection of Mr. Rosettani’s.

Evidence of Mr. Rosettani

[124] Mr. Rosettani gave his evidence in a straightforward manner.

[125] He was not defensive or argumentative. He was generally not evasive.

[126] He categorically denied each and every allegation.

[127] In fact, the crown acknowledged in his closing submissions that there was not much that was problematic about his evidence.

[128] I am mindful that Mr. Rosettani is not required to prove his innocence or offer an explanation as to why something did or did not happen. To do so would shift the burden of proof.

[129] However, I find that there are two important pieces of evidence taken from the testimony of R.C. that were confirmed by the evidence of Mr. Rosettani. Firstly, he wore white briefs. Secondly, he was uncircumcised. These two confirmed points assist me in my acceptance of the complainant’s evidence.

[130] I am left to wonder how R.C. would have knowledge of these identifiers if not as a result of the criminal conduct he described. When asked that question the accused’s evidence became evasive and speculative.

[131] Mr. Rosettani agreed that he was uncircumcised and that he wore white briefs or “tighty whiteys.”

[132] With respect to R.C. knowing at Mr. Rosettani was circumcised, defence counsel submits there are only two ways they (penises) can be, inferring perhaps that R.C. made a lucky guess.

[133] I have no reason to come to that conclusion. The evidence does not bear it out.

[134] Toward the end of Mr. Rosettani’s cross-examination he was asked if he was ever naked in front of R.C. His response was somewhat curious to say the least. He said, “No, not that I’m aware of.”

[135] He was then asked if he was ever exposed himself to R.C. for any reason. His response was no, never, unless R.C. caught him while he was coming out of the shower. He didn’t know.

[136] He said he never deliberately exposed himself.

[137] In re-examination he was asked if there was any opportunity for R.C. to see his genitals and he said only when he was possibly coming out of the shower on the main level as this was a generally well travelled area in the home (laundry room where the towels are stored; it is near the garage door where the youths could have walked past).

[138] He was then asked if he recalled a specific time when R.C. was in the residence when he showered. He said no but that when he took a shower, “…the house was always filled with people, so to say he was there-probably-was he? I don’t know. Like the comment earlier about peeking in the bathroom door, that is not something I would do and I was probably at work when he was thinking that.”

[139] This evidence is inconsistent with his other evidence and does not make sense.

[140] First of all if he was “probably at work,” he would have no way of knowing when it was that R.C. was saying that Mr. Rosettani was peeking in on him.

[141] This was clearly an attempt by Mr. Rosettani to distance himself from the possibility that he looked in on R.C. And it was offered at a time when the question was not even asked of him.

[142] Secondly, Mr. Rosettani testified that he always dressed for work in a shirt, tie, suit or sports jacket and slacks.

[143] He testified that he never changed his clothes when he came home from work because he was the “chef” and had to get dinner prepared for his sons and the other boys.

[144] He said that the only clothing he removed when he came home from work was his jacket and tie.

[145] He did not give any evidence that he ever showered when he arrived home from work.

[146] He also testified that he was “rarely” at the house when his sons had their friends over. He explained that this was because his job was “demanding,” and he often had to work long hours into the evenings.

[147] Mr. Rosettani also said that he rarely went in the pool with the boys. He never walked around the house unclothed. He never walked around the house in his underwear when the boys were around. He did not sleep in his underwear. He slept naked.

[148] A mere possibility that alternative explanations are true does not raise a reasonable doubt. Reasonable doubt depends on reasonable possibility, not conjecture. See: R. v. R.A. 2017 ONCA 714 at para. 62 citing R. v. Villaroman, 2016 SCC 33 at par’s 36-43.

[149] Against this speculative evidence there is of course R.C.’s evidence.

[150] R.C. said that he never saw Mr. Rosettani in the bathroom, never saw him in the shower, and never peeked in on him while in the bathroom or taking a shower. He was certain of this.

[151] Regarding R.C.’s ability to properly identify that the underwear Mr. Rosettani wore were white briefs or “tightly whiteys,” defence counsel says well, that wasn’t that much of an identifier or a stretch. I disagree.

[152] Mr. Rosettani’s underwear could also have been boxers, bikinis, coloured or even a combination thereof.

[153] R.C. was correct in his evidence that Mr. Rosettani wore white briefs. Again, according to the evidence of both crown and defence, there is no evidence that there was any other way that R.C. would have or could have known this except for the reasons that he testified to.

[154] I also want to address another concern regarding Mr. Rosettani’s evidence. That relates to him smelling of smoke.

[155] I find that Mr. Rosettani was reluctant to acknowledge the obvious-that he naturally would have smelled of smoke after arriving home from work. It was his evidence that he worked long hours and was smoking 1-2 packs of cigarettes a day with most of the smoking being done at work.

[156] He claimed that he wasn’t aware that he smelled of smoke and that this would be a matter of opinion. In effect, he didn’t want to admit to a fact which he knew would substantiate R.C.’s evidence regarding the sexual assaults. In addition, the fact that this smell is captured in the memory of R.C. adds to his credibility.

[157] This also detracts from Mr. Rosettani’s overall credibility notwithstanding his firm denials.

[158] The J.J.R.D. decision permits a conclusion that a “considered and reasoned acceptance” of the complainant’s evidence is a sufficient reason to reject the evidence of an accused person, and similarly why that evidence does not raise a reasonable doubt.

[159] Much like the situation in J.J.R.D., there are no obvious flaws or contradictions in Mr. Rosettani’s evidence with respect to his denials of engaging in any sexual activity with R.C.

[160] But as previously stated, an accused person is not entitled to an acquittal simply because there are no obvious problems or inconsistencies in his evidence: R. v. R.A., 2017 ONCA 714 at para. 55.

[161] Furthermore, there are my additional concerns with his other evidence.

[162] For all these reasons I must reject Mr. Rosettani’s evidence. Nothing in his evidence or in the evidence as a whole raises a reasonable doubt about any of the essential elements of the offence.

[163] The crown has met its burden and a conviction will be registered on each count.

Released: January 14, 2022. Signed: Justice Paul J.S. Kowalyshyn