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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
ONTARIO COURT OF JUSTICE
DATE: 2024 04 23 COURT FILE No.: Toronto 4811-998 - 23-40001178
BETWEEN:
HIS MAJESTY THE KING
— AND —
R.S.
Before Justice Christine Mainville
Heard on April 2, 2024
Reasons for Judgment released on April 23, 2024
Counsel: Geocelyne Meyers............................................................................. counsel for the Crown Gary Clewley.................................................................................... counsel for the accused
Mainville J.:
[1] R.S. is accused of having sexually assaulted the daughter of close family friends, A.P., when she was 17 years old. She was 18 when she testified.
[2] A.P. was the sole witness for the prosecution. She recounted an incident on January 31, 2023, when the accused placed his hand under her clothing, on her breast. She also recounted earlier instances of the accused slapping her bum. All of these incidents were charged as one global count of sexual assault spanning the year from February 1, 2022 to the January 31, 2023 incident.
[3] The accused testified in his defence and denied the allegations.
Facts
[4] The accused and A.P. had an uncle-niece type relationship. The two families had been close for years, and spent a lot of time together.
[5] On January 31, 2023, A.P. asked to go to the accused’s home to meet a new puppy. Both agree that A.P., along with her mom, brother, and her mother’s long-time boyfriend B., went over to the accused’s home. There, the adults had coffee, then settled in the living room to watch TV.
[6] A.P.’s mom and the accused’s wife then decided to return a package at Canada Post. They asked A.P. if she wanted to go with them, but she decided to stay. She was in the living room on an extended sofa-bed along with the accused to her right. The new puppy was lying between them. The accused’s young son also joined them and sat to A.P.’s left. B. laid back on the couch next to them, three or so feet away. The other kids were in a bedroom.
[7] The accused and B. were watching biking videos, as they often do. A.P. was mainly paying attention to cartoons she had put on her phone for the accused’s young son to watch.
[8] A.P. testified that at some point, the accused placed a blanket over her. He also had a blanket covering himself and the puppy. It was not unusual for them to use the blankets that remained in the living room, but she had not requested one at that time.
[9] A.P. states that the blankets overlapped such that the accused then covertly placed his hand on her stomach, under her shirt. At first, she thought he might be intending to tickle her or something. But he then moved his hand up to her sports bra, then went under her bra and placed his hand on her breast. She states that he left his hand there, without movement, for several minutes.
[10] A.P. tried to scooch over but the accused scooched over as well and continued to touch her breast. Since her phone was occupied, she texted her mom from her Apple watch to know when she would be back. This text went out at 8:08 pm.
[11] A.P. testified that the touching only ended when B. received a call from her mom and the accused’s wife stating that they were back but needed assistance with parking. B. left the room to help them. The accused removed his hand and told A.P. not to tell anyone as his wife can get jealous. A.P. then left the room as she did not want to be alone with the accused.
[12] A.P. disclosed the incident approximately one week later, first to her family, then to the police. She was torn about it given how close the families were – she did not want to lose contact with the accused’s two sons, who are like family to her, but came to believe that she needed to report the incident as she could not get it out of her mind and realized she would have to see the accused again.
[13] The accused testified that he had his own blanket, but that A.P. retrieved her own and the two blankets were not overlapping. His blanket did not cover the puppy such that there was a gap between them. He also testified that he and B. were watching a video about the kind of bike B. had recently purchased and to which they were making adjustments, such that they were talking throughout their viewing of the video. They were therefore regularly looking at each other as they watched the TV. He and A.P. would’ve been well within B.’s view.
[14] The accused denied touching A.P. as she described during this time, or any time prior to that. He stated it was a normal evening and A.P. acted like her usual self throughout.
The Principles to be Applied
[15] The accused is presumed innocent. There is no obligation on him to do anything to establish his innocence. The presumption of innocence remains in place, unless and until the Crown has proven each essential element of these offences beyond a reasonable doubt.
[16] Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence. It is not enough for me to believe that the accused is probably or likely guilty. Reasonable doubt requires more than mere probability. Although it cannot be described with mathematical precision, reasonable doubt is a high standard, consistent with its role as a safeguard against wrongful convictions. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.
[17] In assessing the evidence of the witnesses in this case, I must consider their credibility and reliability. Credibility relates to the honesty of the witness, including whether the witness was trying to tell the truth and if the witness was candid, sincere, biased, evasive or prone to exaggeration or minimization. Reliability relates to the accuracy of a witness’ testimony and involves a consideration of the person’s ability to accurately observe, recall and describe the events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. However, credibility alone does not establish reliability, as a truthful witness may give unreliable evidence.
[18] Testimony can be assessed through a non-exhaustive list of factors, including (a) the plausibility of the evidence; (b) the presence of independent supporting or contradicting evidence; (c) the external and internal consistency of the evidence; (d) the “balance” of the evidence, meaning the witness’ apparent willingness to be fair and forthright without any personal motive or agenda; and to a limited extent, (e) the witness’ demeanour while testifying.
[19] I am entitled to believe all, part, or none of a witness’ evidence and may attach different weight to different parts of a witness’ testimony.
[20] In assessing the credibility and reliability of the witnesses, I do not simply choose one conflicting version of events over another. Instead, I must apply the framework set out by the Supreme Court of Canada in R. v. W.D.
(i) If I believe the evidence that is inconsistent with the accused’s guilt, I must acquit him.
(ii) Even if I do not believe the evidence that is inconsistent with the accused’s guilt, if I cannot decide whether that evidence is true or if it raises a reasonable doubt in my mind, then I must acquit.
(iii) Even if I entirely disbelieve the evidence inconsistent with guilt, the mere rejection of that evidence does not establish guilt. Instead, I must be satisfied that the evidence I do accept proves the accused’s guilt beyond a reasonable doubt.
The Elements of the Offences
[21] There is no dispute that the elements of the offences charged are made out if I accept A.P.’s evidence in relation to any of the sexual incidents alleged.
Analysis
[22] Given that the accused testified and denied the allegations, I will first address his evidence as it may be dispositive of the matter.
The Accused’s Testimony
[23] The accused wholeheartedly denied the allegations. He confirmed A.P’s attendance at his home on the day in question, and much of the benign details of the evening. However, he denied that any inappropriate touching occurred.
[24] The accused acknowledged having a close relationship with A.P., agreeing that they were like uncle and niece and that their relationship did not suffer from any issues.
[25] There was no inherent implausibility to the accused’s version, nor was he contradicted on any of his evidence. He withstood cross-examination well. He was generally forthright, responsive to questions asked, and I did not perceive any real issue with his evidence.
[26] Nor did the Crown raise any particular issues with the accused’s testimony in closing submissions. The Crown nevertheless submits that the accused’s account should be rejected based on a considered analysis and acceptance of A.P.’s testimony, which the Crown submitted was most credible and reliable.
A.P.’s Testimony
[27] A.P. did generally come across as very credible and reliable. She testified in a forthright and matter-of-fact kind of manner, and as one would expect for a person her age. And while what she describes would be a brazen act that may make it seem implausible, some perpetrators admittedly take significant risks when committing their crimes.
[28] There were, however, some issues that emerged with A.P.’s version of events.
[29] Of some import is the fact that A.P.’s initial description of the incident entirely overlooked a conversation and call that she placed while the touching was happening.
[30] Indeed, A.P. testified that the accused’s hand remained on her breast from the time she texted her mom from her Apple watch at 8:08 pm, to when B. received the call from her mom and the accused’s wife stating that they were back. This call was reflected on A.P.’s mother’s phone as having been made at 8:16 pm. A.P. was clear, then, that the accused’s hand remained there throughout those 8 minutes.
[31] In the interim, however, according to the same record introduced from A.P.’s mother’s phone, A.P. placed a call to her mother at 8:12 pm.
[32] A.P. explained that this was to take a coffee order which was to be conveyed to two people who were coming over to the house. She testified that B. and the accused asked her to place this call. When first asked about the call, she did not recall what the accused was doing during it and whether his hand was still on her breast, but she then reiterated that his hand was there from the 8:08 message to the call at 8:16. In cross-examination, she again acknowledged that that call would have been placed while the accused’s hand was still on her breast. She stated that her mom did not pick up, so they did not speak, but acknowledged that a subsequent call was therefore placed to the accused’s wife. She was unsure whether she was the one who placed that second call but acknowledged that a coffee order was indeed discussed.
[33] It seems implausible that the accused would ask A.P. to place a call to her mother about coffee, all the while continuing to fondle her breast, and with B. being part of this coffee exchange. A.P. also testified that no words were exchanged while the accused’s hand was on her breast, which is incongruent with this exchange about coffee.
[34] More significantly, A.P. acknowledged that in her police statement given 15 days after the incident, she first told the police that the touching stopped when she faked a call from her mom and got up stating that her mom was calling. This was after she had already messaged her from her Apple watch.
[35] In court, she testified very clearly and repeatedly that the touching only stopped when her mom and the accused’s wife called B. when they had arrived back home. She never left the room until that happened, and until the accused had already stopped. She was still in the room after B. left because that is when the accused told her not to say anything.
[36] When confronted with this inconsistency about how and when the touching came to an end, A.P. stated that her testimony was accurate, not her earlier statement to the police. She explained that, when speaking to the police, she thinks she meant to reference her calling her mom, when her mom did not pick up.
[37] But the inconsistency is about more than simply who was calling who, or whether it was a pretend call or not. It was about whether A.P. got up to leave the room or not during the touching, and how the incident came to an end.
[38] A.P. acknowledged that what she told the police was not true. She agreed that she remained in the room and the touching continued for a further four minutes before it ended with her mom arriving home. She was aware of the parking call made to B. because she was still in the room when that call was received – she heard it.
[39] When asked why she initially misled the police about how the incident ended, A.P. stated that she maybe just confused her story. She agreed that both versions of how it ended had real details to them.
[40] I do keep in mind the following guidance relating to assessing the testimony of an adult testifying to matters from their childhood, even though A.P. was testifying to matters having occurred approximately one year prior, when she was 17:
In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying: R. v. W.(R.), [1992] 2 S.C.R. 122 at para. 27
[41] However, the test of general application regarding the testimony of adults relating to events having taken place during childhood does not set any hard and fast rules about how to assess the witness’s evidence: W.R., at para. 27.
[42] In my view, while A.P. testified in a manner that was at times perhaps less precise than would be expected of a typical adult, and while that could be forgiven given her age, it does not lessen the need to be cautious about the credibility and reliability of this evidence.
[43] I do not deem the above inconsistency to relate to a peripheral matter. It is central to A.P.’s account of how the main touching incident unfolded.
[44] The above issues call into question the credibility and reliability of A.P.’s account of what in fact occurred on January 31, 2023. This also has the effect of undermining the less-detailed accounts of what transpired between her and the accused prior to that date.
[45] I am also unable to discount the accused’s testimony denying the allegations.
[46] An acquittal will therefore follow.
Released: April 23, 2024 Signed: Justice C. Mainville