Publication Ban 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2023 12 21 COURT FILE No.: Central East - Oshawa 2811-998-22-28106359-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

A.J.

Before: Justice P.D. Tetley

Heard on: October 31, 2023, November 21, 22, 23 and 24, 2023 Oral Reasons for Judgment given: November 24, 2023 Supplementary Reasons for Judgment released on: December 21, 2023

Counsel: Agapi Mavridis, counsel for the Crown Alan Richter, counsel for the accused A.J.

Publication Ban

This proceeding is governed by a Publication Ban pursuant to s. 486.4(1). The Ban directs that any information that could identify the complainant or a witness in this trial not be published in any document or broadcast in any way.

Reasons for Judgment

TETLEY J.:

[1] In brief Reasons for Judgment, dated November 24, 2023, I summarized the rationale for the not guilty verdict in the matter of Rex v. A.J., 2023 ONCJ 599.

[2] At that time I advised of the intention to issue additional reasons in relation to the disposition of the charges of sexual assault, s. 271 of the Criminal Code and sexual touching of an individual under 16 years of age, s. 151. These are the additional supplementary Reasons for Judgment in the matter of Rex v. A.J.

[3] In summary terms, these reasons address the following issues:

(i) The complaint of sexual misconduct;

(ii) The assessment of credibility of the complainant and defendant;

(iii) The ensuing police investigation; and

(iv) The implications arising from the position taken by the Kawartha Pine Ridge District School Board in relation to these allegations.

[4] Before addressing these issues, in greater detail, I would remind all interested parties that this prosecution remains subject to a Publication Ban. Accordingly, the complainant will be identified in these reasons by his initials only. It has been brought to my attention that, since the verdict was rendered, the defendant has chosen to disclose the outcome of this prosecution by resort to both social and mainstream media. Accordingly, the name of the defendant has not been similarly characterized.

The Complaint

[5] The complainant, T.J., is presently 17 years of age and a Grade 12 student. The complaint that resulted in the referenced charges being laid arises from an initial 911 call that was made by the complainant to the Durham Regional Police Service in Bowmanville on August 10, 2022.

[6] The initial complaint resulted in further disclosure being made by the complainant to Child Assault and Sexual Assault (CASA) Officer Cst. Matthew McLaughlin on August 13, 2022, and subsequently to Det. Cst. now Sgt. Amanda Rabishaw on August 26 and October 21, 2022.

[7] The initial complaint alleged that the complainant had been sexually assaulted by the defendant close to the end of the school year in June 2018. At the time the complainant was 12 years of age and a Grade 6 student at [name of school removed] School in Bowmanville. The defendant was employed as a teacher’s aide at the time with specific supervisory responsibilities in relation to the complainant.

[8] The complainant, as memorialized by Cst. McLaughlin, did not reference the incident as having taken place on the last day of the Grade 6 school year referencing that it had occurred “close” to the end of that academic year.

[9] The complainant related that an incident of unprotected vaginal sexual intercourse had taken place during the school day in a small “quiet” room adjacent to his classroom. He described his involvement in the incident as having included the removal of his own pants and the locking of the door to the room where the incident took place.

[10] The initial complaint referenced both the complainant and respondent as having kept their clothes on, with the pants, that each were presumably wearing, being lowered to facilitate the sexual contact.

[11] The complainant referenced having seen the defendant on several other occasions subsequent to the incident taking place. At the end of the school year the complainant continued his education at a different school and had no further contact with the defendant.

[12] The complainant described the defendant as having attempted to block the window in the door to the room with a small gym-style mat prior to the sexual contact taking place.

[13] In his role as a CASA Officer, Cst. McLaughlin testified that he noted the unrecorded complaint in a report in expectation of a formal recorded statement to follow.

[14] On August 26, 2022 the recorded statement was secured from the complainant. In that statement, the complainant detailed the allegations of sexual impropriety as having taken place during a 15-minute break in the school day. It followed previous interactions with the defendant during which she was characterized as having been “very physical and very touchy” with the complainant. Touching of a sexual nature was stated to have included the defendant having “touched” the complainant’s thigh and rested her leg against the complainant’s leg.

[15] An incident of vaginal intercourse was stated to have followed on the last day of the school year in a specific quiet room during a 15-minute break in the school day.

[16] The complainant recounted initially grabbing the defendant around her waist. This reportedly prompted the defendant to cover the window, adjacent to the doorway, with a small mat and the complainant to lock the door.

[17] Thereafter, the complainant reported that he grabbed the defendant. The defendant reciprocated and took the complainant to the floor whereupon the complainant undid the fly in his shorts. The defendant was recalled as having worn a dress with some blue features.

[18] An unanticipated and unplanned incident of sexual intercourse, of a duration of less than 15 minutes, ensued with the defendant remaining on top of the complainant throughout. After approximately 12 minutes, at the urging of the defendant as the break period was about to conclude, the complainant ejaculated in the defendant’s vagina having fondled the defendant’s breasts during the encounter. The complainant stated the defendant was “probably” wearing underwear. He did not recall any kissing having taken place.

[19] At the urging of the defendant the complainant did not reveal or report the encounter to anyone else until the fall of 2022. He recalled the day concluded by the defendant’s provision of a “fidget toy” and a candy.

[20] The complainant advised he never subsequently revealed the incident to anyone else until disclosing the encounter to his therapist sometime over the summer of 2022. The incident was reportedly also disclosed, in summary or non-detailed fashion, to the complainant’s father earlier in August 2022.

[21] On October 21, 2022, J.T. was reinterviewed by Det. Cst. Rabishaw in relation to the apparent inconsistency arising from his initial report to Cst. McLaughlin wherein the complainant had described having seen the defendant at school subsequent to the date the sexual encounter was asserted to have occurred. The defendant denied having made that noted representation and reiterated that the encounter had occurred on the last day of his Grade 6 school year.

[22] At trial the complainant testified that he disclosed the incident to his parents shortly after it had occurred “but no one believed me.” He recalled his parents as having advised that “I probably just imagined it.” This representation contrasted with J.T.’s recollections at the time of the 2022 911 call where he expressed uncertainty of ever having previously disclosed the incident to his parents. He ascribed his less than exact recall as being related to the supressed memory of a traumatic event. He also recalled having told Cst. McLaughlin that the defendant had been wearing a dress and that he had been wearing shorts. No mention was recalled, as noted by Cst. McLaughlin, of the complainant having lowered his own “pants”. The complainant referenced his initial account of events as being consistent, in all material aspects, with that subsequently disclosed to Cst. Rabishaw.

[23] The complainant testified that he disclosed the incident to his father after the 911 call and to his mother subsequent to Cst. McLaughlin’s visit to his home where the initial police report of the incident was noted.

Credibility Assessment

[24] As noted in the initial Reasons for Judgment, the original complaint in this matter is unusual in that it entails a seemingly unplanned and unanticipated incident of unprotected sexual intercourse in what is now known to be an unlocked room during a 15-minute break period in the course of a school day.

[25] The factual allegations are distinctive not only because of the age of the complainant when the offences are alleged to have taken place but also by the gender and personal circumstances of both the complainant and the defendant at the time.

[26] Leaving aside the logistical considerations arising from a reported act of unprotected intercourse in an unlocked room during a break period in a school day; the seeming unlikelihood of the act itself, as described, having occurred; the inconsistencies in the various accounts provided by the complainant in relation to the date of the offence, the clothes worn, the characteristics of the room and the subsequent disclosure of the event to others, no meaningful consideration of the various challenges faced by the complainant at the time seems to have been considered or investigated prior to the complaint being acted upon.

[27] Previously, I have concluded the complainant’s account to have been fabricated or contrived. This is not a case where a reasonable doubt is concluded to exist in relation to the assessment of credibility of either the complainant or defendant.

[28] The inherent inconsistencies in the varied reports offered of the incident are concluded to be hallmarks of an attempt to recount an incident that never took place and a seeming unwillingness of the officer in charge of the subsequent police investigation to question the veracity of the complaint at the expense of a fellow investigator and the detriment of the defendant.

[29] There is no reason to prefer the complainant’s qualified recounting of events on rejection of the noted versions as referenced in Cst. McLaughlin’s initial summary of the complaint; a summary noted by an experienced officer with special training in such matters.

[30] Further, by his own admission, the complainant had “mental health issues” at the time the incident was reported to have taken place, including what he believed to be “borderline personality disorder.” At the time he described his behaviour as being “really bad”, to be characterized by “acting out” that resulted in him “getting into a lot of trouble” to the extent that a special supervisory educational plan was put in place in order to enable the complainant to attend school. These behaviours had resulted in previous assaultive incidents involving both the school’s Vice Principal and the defendant herself and school suspensions.

[31] All of these considerations are concluded to undermine the reliability of the complainant’s account of events. In contrast, the defendant’s account is concluded to go well beyond the creation of a reasonable doubt in relation to the offences alleged. I accept the defendant’s denial without reservation. The defendant’s relationship with the complainant was a challenging one given the compromised state of the complainant’s mental health at the time and his known propensity for violence, falsehood, self-aggrandizement, and behavioural disturbance.

[32] The defendant’s confirmed medical condition, known previous professional interactions with the complainant, her family circumstances and known good character are all factors concluded to conspire to render her trial testimony both believable and reliable. As a result, I accept the testimony offered by the defendant without reservation and the assertion of a completely unprotected unexpected sexual encounter of the most invasive nature with a troubled youth as untrue, contrived, and unworthy of belief.

The Investigation

[33] A police officer is obliged, by virtue of s. 42 of the Police Act, R.S.O. 1990 c. P.15, and the terms of employment in the important position held, to investigate alleged offences “faithfully, impartially and according to law.” While a criminal trial is not to be equated with a judicial inquiry or a forum for a general critique of a given investigation, some comment is warranted in this case with a view to ensuring appropriate steps are taken to ensure investigative fairness in like cases in the future.

[34] The charges in this matter were formalized on September 21, 2022. By that date the initial 911 call from the complainant had been received, the initial police contact with Cst. McLaughlin had taken place (August 13, 2022) and the initial interview with the complainant had occurred (August 26, 2022).

[35] The trial record reveals that the content of the initial 911 call had not been reviewed by now Sgt. Rabishaw, nor the apparent inconsistencies in the August 13, 2022 report resolved, prior to the laying of the charges. A discussion of these inconsistencies formed the subject matter of the post-charge interview with the complainant on October 21, 2022 with the report authored by Cst. McLaughlin concluded to have been inaccurate. The rationale for this conclusion apparently founded on Sgt. Rabishaw’s belief in the veracity of the complainant’s account of events and his denial of having made several of the representations noted by Cst. McLaughlin.

[36] At the time the charges were laid no inquiry relating to the various challenges faced by the complainant at the time had been ascertained or explored, the complainant’s parents had not been interviewed, his Grade 6 teacher had not been contacted, other teachers’ aides interviewed, or the school visited. Collectively, these initiatives might have conspired to cast doubt on the reliability of the complainant’s account of events and sounded a cautionary warning to proceed with investigative deliberation before acting on the complaint.

[37] Given the complaint related to an incident that had reportedly transpired five years before, with no like incidents involving the defendant known to have occurred since, it is difficult to accept that urgency or a compelling public interest dictated the laying of the charges before any meaningful investigation had taken place.

[38] Certain of these inquiries would have resulted in the revelation that the room in which the assaultive conduct unfolded had no lock, that the defendant was known to be a reliable professional with a cautious and guarded approach to her relationship with the complainant who had a troubled behavioural history.

[39] The absence of a meaningful, independent, objective and impartial investigation and the acceptance of a “unique” complaint without reservation, or attempt to verify, is concluded to have resulted in the laying of charges on the basis of the internally conflicted and inconsistent account of the complainant alone. This circumstance might have been called into question had readily available investigative steps been taken.

[40] It is unclear from a review of the trial record as to why these seemingly self-evident investigative initiatives were not pursued but that is what appears to have occurred. As most sexual assault allegations involve male defendants it may be that efforts routinely employed in such matters were not considered here. Those initiatives typically focus on the securing of forensic evidence, when available, the interviewing of any witnesses who may have been present or have otherwise relevant evidence to offer, and efforts to otherwise corroborate the factual aspects of the complaint if possible.

[41] Despite the historic nature of the assault alleged, a visit to the school would have revealed the room in issue had never sported a lock, contrary to Sgt. Rabishaw’s unsubstantiated belief to the contrary. A timely interview with the Grade 6 teacher, who is still teaching at the same school, and the other teacher aides would have called into question the veracity of the complaint given the complainant’s volatile nature and his known mental health and behavioural issues at that time.

[42] This judgment serves as a cautionary example as to the fact an injustice can occur when appropriate and available investigative steps are not pursued and a criminal prosecution instituted on what is now concluded to be an uncorroborated complaint of criminal misconduct of dubious reliability.

[43] This is not to say that the investigating officer was without reasonable and probable grounds to lay the charges. Those grounds can arise from the complaint alone. What did not happen here was any meaningful investigative initiatives beyond the accepted, or believed, complaint itself. This fact was underscored by the Crown’s decision to only call the complainant as the sole witness in the prosecution’s case.

[44] Finally, the trial record concerningly reveals that the complainant’s Grade 6 teacher and the other teacher aides who had knowledge of the complainant and defendant were specifically directed by the School Board officials not to discuss the complainant’s personal circumstances with the police. This directive acted to effectively thwart the disclosure of meaningful and alternatively compelling evidence, that was revealed during the course of the trial, when the investigating officer made inquiry in November 2022.

The Position of the Kawartha Pine Ridge District School Board

[45] As noted, the Board directive not to reveal any details relating to the complainant by the educators who knew him best negatively impacted, or limited, the course of the post-arrest investigation and served to effectively prevent the timely revelation of relevant evidence that might have served to call into question the viability of the prosecution of these charges at the outset.

[46] When no evidence was presented at trial on the rationale or propriety of the Board’s position it is apparent that the focus was on the desirability of maintaining strict student confidentiality. Unfortunately, lost in the exchange was what amounts to the abrupt, official sanctioned, curtailment of necessary and warranted investigative initiatives.

[47] As a direct result of the Board’s position, I conclude the investigation in this matter was hampered and the principle of investigative fairness undermined or compromised. It was not until trial when the complainant’s Grade 6 teacher and several educational aides came forward, under subpoena, that the meaningful information they had to offer was received. Consideration of the trial testimony provided formed an important aspect of the evidence leading to the defendant’s acquittal. This determination warrants consideration should such a circumstance arise in the future.

Released: December 21, 2023 Signed: Justice P.D. Tetley