Warning and Non-Publication Order
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2025-05-09
COURT FILE No.: Windsor 23-81104880
Between:
His Majesty the King
— AND —
Juan Borja
Before Justice S. G. Pratt
Heard on 27 and 31 March 2025
Reasons for Judgment released on 9 May 2025
Andrea Harris — Counsel for the Crown
Evan Weber — Counsel for the Defendant
Reasons for Judgment
Pratt J.:
[1] The Defendant Juan Borja is accused of two sexual assaults on the Complainant M.B. These assaults are alleged to have taken place between 18 June and 15 July in count 1, and 16 – 31 July in count 2.
[2] The Crown argues the evidence of the Complainant is sufficient to prove both counts. Counsel for the Defendant argues any sexual contact at the relevant times was either consensual or never happened, and that whether or not the Court accepts or is left with a doubt by the Defendant’s evidence, I should in any event not accept the Complainant’s evidence as proof beyond a reasonable doubt.
[3] For the reasons that follow, I agree with the defence.
Admissions
[4] At the outset of trial, date, identity, and jurisdiction were admitted.
Issues
[5] Our society functions according to the rule of law. In the criminal justice context, several concepts are enshrined in the Charter of Rights and Freedoms. The Charter is part of our Constitution and is the supreme law of Canada. It provides the bedrock principles of our justice system. These principles include the presumption of innocence, the right to silence, and the right to counsel.
[6] The foundation for all these rights is an independent and impartial judiciary. Without courts empowered to act free of any pressure or influence from any quarter, the rights Canadians hold dear become illusions. Without an independent review of state conduct, that state becomes the unchallenged last word on right and wrong. Without an impartial body holding lawbreakers responsible, there will be no respect for the law.
[7] An independent judiciary, committed to applying the law without fear or favour, is crucial to the maintenance of a just and civil society.
[8] In all criminal cases, the Crown bears the burden of proving the defendant’s guilt beyond a reasonable doubt. There is no burden on a defendant to prove his or her innocence. Defendants are presumed innocent and maintain that presumption unless and until guilt is proved by the Crown.
[9] Proof beyond a reasonable doubt is a high standard. If I find the Defendant is only likely guilty or even probably guilty, the Crown will not have met its burden. I must be sure of his guilt if I am to convict. It is also not a question of whose evidence I prefer; a criminal trial is not a contest where the most believable witness wins.
[10] This case is governed by the principles set out in R. v. W.D., [1991] 1 S.C.R. 742. The test is as follows:
[11] If I believe the exculpatory evidence of the Defendant, I must acquit him.
[12] If I do not believe his exculpatory evidence but am nonetheless left with a reasonable doubt by it, I must acquit him.
[13] If I neither believe his evidence nor have a reasonable doubt because of it, I must then consider if, on the evidence I do accept, the Crown has proved one or more counts beyond a reasonable doubt. Only if I find they have done so should I find him guilty.
Step 1: Do I believe the evidence of the Defendant?
[14] The Defendant testified and was cross-examined. He agreed with the Complainant on several points:
- They met shortly after her 16th birthday.
- They were in a romantic relationship from June – August 2023.
- They would frequently stay in local hotels over the course of their relationship.
- On 6 August, the Defendant was arrested at his home on charges unrelated to the Complainant. She was present at the time of his arrest.
[15] Regarding the charges before the Court, the Defendant described their hotel stays at the relevant time. Specifically, he testified to the two days that were the focus of the Complainant’s evidence.
[16] While I will consider her evidence in greater detail later in these reasons, I will summarize it briefly here to provide context.
[17] As to the first incident, the Complainant testified that they were sleeping in the same bed. In the morning, she said she woke up to the Defendant having vaginal intercourse with her. She said the intercourse was painful and she told him to stop. He did not. He eventually ejaculated on the bed.
[18] The Defendant agreed they were in the hotel room, sharing a bed. He said they were lying together and started kissing. He took this as an indication that she was interested in having sex. They took off their clothes and he got on top of her. He asked if she wanted to “do it”. She told him she didn’t want to have sex as she had “too much trauma”. He rolled off her and returned to his side of the bed. There was no sexual activity beyond the kissing.
[19] As to the second incident, the Complainant described a similar series of events. She was sleeping, and woke to the Defendant having intercourse with her. She told him to stop, and this time he did.
[20] In his testimony, the Defendant said the second incident was not in the morning but in the evening. He had taken a shower and was sitting on the bed playing video games. The Complainant took her own shower and exited the bathroom wearing a towel. He said they laid on the bed. They kissed, and he took his boxers off. She then said she didn’t want to have sex, again referencing her past trauma. He acquiesced and no further sexual activity took place. He said they dressed and went out to eat.
[21] In cross-examination, the Defendant agreed the first incident took place in the morning. He said they awoke and were smoking marijuana and kissing each other. They each removed their clothes while kissing. He said he asked if she wanted to have sex and she said no, she had too much trauma. Cross-examination was also the first time he said she told him her stomach was hurting. She may have also mentioned being on her period. They did not have sex, he said, for all those reasons.
[22] Late in his cross-examination, the Defendant added to his account of the first incident. Initially he said they were kissing, they removed their clothing, he got on top of her, and he asked if she wanted to have sex. She said no and he stopped. Towards the end of his evidence, he said the Complainant first said yes when he asked her about having sex. That is why he removed his clothing and laid on top of her. It was only when he was in that position, about to begin intercourse, that she changed her mind.
[23] He also testified for the first time at the end of his cross-examination that he used a condom in the first incident. It was suggested to him he was not wearing a condom and he replied that he was “probably” using one. He then testified to a specific memory of the condoms being on the table next to the bed. When he asked her the first time and she said yes, he took a condom and put it on. It was after that that he moved on top of her and asked again.
[24] The Defendant took a different tack in his testimony than counsel did in cross-examination of the Complainant. It was put to her that the sexual contact in issue was entirely consensual. In his testimony, the Defendant claimed there was no sexual contact at all, beyond the kissing he admitted. At no point in her cross-examination was it ever put to her that she refused sex because of past trauma or stomach pain. She was never given the opportunity to comment on the Defendant’s account.
[25] It was agreed between counsel that the remedy for this never having been put to the Complainant was that I could draw a negative inference against the Defendant in assessing his credibility. I agree that is the appropriate response.
[26] I would further note the obvious point that counsel’s questions are not evidence. Relevant to this case, that means that there is no suggestion in the evidence that the Complainant consented to the sexual intercourse alleged. The defence is exclusively that the intercourse did not happen.
[27] Taking the entirety of the Defendant’s evidence into account, I find I do not believe him. His account of the incidents was fluid. His testimony in chief was markedly different from his testimony in cross-examination. He first said she only said no to sex, then said she changed from yes to no. He was entirely unclear in his narrative of the second incident, particularly in how they came to be laying unclothed in bed. Finally, his testimony regarding his use of a condom in the first incident was not provided until very late in cross-examination, when he went from saying nothing about condom use, to saying he probably used a condom, to having a specific memory of putting one on.
[28] On the first prong of the W.D. test, I find I do not believe the evidence of the Defendant.
Step 2: Do I have a reasonable doubt on the basis of the Defendant’s evidence?
[29] The second stage of the W.D. test presents a much lower bar. I can disbelieve evidence while still being left with a reasonable doubt by it. At this stage of the analysis, I ask myself if, based on the Defendant’s evidence, I have a reasonable doubt. I do not ask myself if his evidence could reasonably be true, as this would reverse the onus and imply that he bears a burden to provide a reasonable explanation. The question is, simply, do I have a reasonable doubt overall based on the Defendant’s evidence?
[30] The answer to this question is no.
[31] While the test is lower at this stage, I can still rely on the same reasons I did in the first stage. The reasons I rejected his evidence as unbelievable are the same reasons I find it incapable of raising a reasonable doubt. At the risk of repeating myself, I will review those concerns again.
[32] The evidence of the Defendant was inconsistent. It changed as he testified, and changed significantly between chief and cross-examination. I do not ignore that he was testifying about events from nearly two years ago. The passage of time makes his uncertainty about exactly when, for example, he removed his boxers in a given incident less troubling. But his inconsistencies went beyond minor points. Throughout his evidence in chief, he said she only ever said no to having sex. Only in cross-examination did he reveal she first said yes. Likewise, only in cross-examination did he say part of her stated reason for not wanting to have sex was stomach pain or menstruation. That was not part of his evidence in chief. His addition of evidence regarding condom use was late and, respectfully, convenient.
[33] Added to all this is the negative inference I draw from his failure to put his defence to the Complainant.
[34] After evaluating the evidence of the Defendant and placing it in the context of all the evidence heard in this trial, I find it does not leave me with a reasonable doubt.
Step 3: Has the Crown proved the offences beyond a reasonable doubt?
[35] At the third stage of the W.D. test, I must determine if, on the evidence I do accept, the Crown has proved one or more charged offences beyond a reasonable doubt.
[36] Again, it is not sufficient if the evidence leads me to conclude the Defendant is likely or probably guilty. Finding I simply prefer the evidence of the Complainant is also not enough. I must be sure of the Defendant’s guilt before I convict.
[37] The Complainant was 17 years old at the time of her testimony. She was testifying about events she said took place shortly after her 16th birthday. She is a child witness, and her evidence must be viewed through that lens. Speaking for the Supreme Court of Canada in the case of R. v. R.W., [1992] 2 S.C.R. 122, Justice McLachlin (as she then was) cited Justice Wilson in the Supreme Court decision of R. v. B.(G.), [1990] 2 S.C.R. 30, at paragraphs 25 and 26:
As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child. What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.
It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards -- to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to his or her mental development, understanding and ability to communicate.
[38] These decisions confirm that witnesses should be not viewed through unyielding preconceived stereotypes. All witnesses are individuals deserving of bespoke assessment. This is especially true of child witnesses who lack the life experience or narrative capabilities of adults. This does not mean that the Crown’s burden shifts as the ages of its witnesses decrease. The burden is always the same and must be met regardless of the nature of the evidence offered. Courts must also be careful when employing “common sense” in assessing evidence. It is a short drive from assessing evidence pragmatically to inappropriately filling in gaps and making unsupported assumptions.
[39] The Complainant testified as I’ve noted. She related two incidents with the Defendant at a hotel. In both, she said she was sleeping and awoke to find the Defendant having vaginal intercourse with her. On the first occasion, she told him to stop but he did not. She said he continued and ultimately ejaculated on the bed. On the second occasion, she again told him to stop, and he did. On neither occasion did the Defendant wear a condom. She said she never brought the incidents up in conversation with him and went on with their relationship. In fact, she said she wanted to continue the relationship despite the allegations she described.
[40] In both incidents, she said she fell asleep wearing shorts, underwear, and a t-shirt. When she awoke each time, she was naked from the waist down.
[41] Even after his arrest in August, she still wanted to stay with him. When she was questioned by police following his arrest, she did not disclose any sexual assault despite the interview being largely about their relationship.
[42] The Complainant’s evidence was not perfect. There were certain areas, properly pointed out by counsel, that he argues should give me concern.
[43] The first relates to the Complainant’s knowledge of the Defendant’s age. In her evidence in chief she said she didn’t know his exact age, but believed the Defendant to be around her age when they met. In cross-examination, she said she believed him to be 17 or 18. It was put to her that in her first statement to police, taken in August 2023, that she told police she knew at the time that he was 22 years old. At first, she disagreed she’d said that. She then immediately agreed, and when asked why she said otherwise in her testimony, she said it was hard to remember. I take from that evidence she is saying she forgot she told police that.
[44] I agree it is a weakness in her testimony that she told the Court she thought he was 17 or 18 but told police she knew he was 22. I must consider, however, the nature of this inconsistency and the context in which it arose.
[45] Is this an inconsistency that goes to core issues in the case? It is not. The age of the Defendant, or the relative age difference between the Complainant and Defendant, is not relevant to the charges. While specifying that she thought the Defendant was 17 or 18 is more of an issue than had she simply said she didn’t remember his age, I do not place undue weight on this one point when assessing her credibility.
[46] The second area counsel points to is the Complainant refraining from mentioning anything about the sexual assaults in her August statement. Further, he notes that when police told her about a sexually transmitted disease the Defendant apparently had, she told them she didn’t need to be tested as he always wore a condom. This went against her testimony that the Defendant did not use a condom in either incident. He does not make the argument that had the sexual assaults happened, she would have told someone. That reasoning would be improper and counsel does not invite me to engage in it. He does, however, submit that the condom issue is an inconsistency. She acknowledged in cross-examination that she may well have lied to the officer when she said he always used one. This, counsel suggests, is a problem.
[47] When she was asked about not mentioning the sexual assaults to police in August, the Complainant provided an explanation. She said, simply, that she wasn’t yet ready to talk about them. Failure to disclose sexual assaults in a timely manner is not a standalone basis for taking a dim view of a complainant’s credibility (see: R. v. D.D., 2000 SCC 43, R. v. Kruk, 2024 SCC 7, [2024] S.C.J. No. 7). It does, however, form part of the “factual mosaic” of the case and “must be assessed in the context of the trial evidence as a whole” (see: R. v. S.G., 2022 ONCA 727).
[48] That said, as noted by Justice Major in D.D., supra, at paragraph 65:
A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge.
[49] The latitude that is properly granted in the disclosure of traumatic events must surely be even more applicable when the witness in question is a child.
[50] In the present case, counsel alleges that disclosure was only made after the Complainant learned of the Defendant’s infidelity. This discovery provided a motive for her to fabricate her allegations. This is the crux of the delayed disclosure argument. Counsel is not arguing that because she delayed in telling police about the assaults, they are less likely to have happened; he is arguing that the allegations only being made after learning the extent of the Defendant’s unfaithfulness makes them less believable. Her anger at finding out she’d been cheated on motivated her to concoct these accusations.
[51] I have considered the defence argument on this point, remembering throughout that the burden is on the Crown to prove the offences beyond a reasonable doubt.
[52] I find the revelation of the Defendant’s infidelity was the motivation for the Complainant to disclose the sexual assault allegations. That does not mean, however, that the allegations are necessarily false. Motive to disclose and motive to fabricate are two very different things.
[53] Where the defence adduces evidence of a motive to fabricate, a trier of fact is required to consider it “to give full effect to the presumption of innocence, and a failure to do so constitutes reversible error.” (see Kruk, supra, at paragraph 65). In the present case, I find the defence has adduced evidence of a possible motive to fabricate given the timing of the disclosure. I must therefore consider that issue in deciding whether I accept the evidence of the Complainant.
[54] On her evidence, the Complainant, a 16-year old girl, was sexually assaulted twice by the person she cared for and was in a relationship with. On two separate occasions, she went to sleep only to wake up without her pants and with the Defendant having intercourse with her. She did not confront him about this afterward but rather wanted to stay in the relationship. Even after his arrest on the other charges, she wanted to stay with him. It was only later, when she learned more details about how he’d lied to her about being with other girls, that she came forward with these allegations.
[55] The Complainant did testify that after her August statement she learned more details about the Defendant’s unfaithfulness. She denied, however, that those details led her to fabricate her allegations.
[56] I find the Complainant was careful in her answers on this point. When she was asked how learning the Defendant had been charged with sexual offences against other females made her feel, she responded, “I don’t really remember”. Respectfully, that is an odd response. She was told that the person she’d been in a relationship with for months had been charged with sexual offences on multiple women, and she doesn’t remember how that made her feel? In my view, that answer is more consistent with not wanting to share how she felt than it is with a legitimate failure of memory.
[57] Where a motive to fabricate has been shown, it falls to the Crown to show that the evidence is believable, nonetheless. That isn’t to say that there is a separate burden in such cases. Instead, from the Crown’s perspective, it is a complication that can make proof beyond a reasonable doubt harder to establish.
[58] Counsel, as I said, also pointed out that she told police in August the Defendant always wore a condom. Her allegations would contradict that point. This is another inconsistency.
[59] Her failure to mention the occasions where he didn’t wear a condom can be taken two ways. In saying she was not ready to disclose the sexual assaults in August, it makes sense that she would not have mentioned the times he didn’t use a condom as that could have forced her to disclose the assaults. Or, she may have been telling police the truth and there never was a time when he didn’t wear one. This would cast doubt on her allegations.
[60] When asked about this point, the Complainant effectively disavowed both her answer and her thought processes at the time of the August statement.
COMPLAINANT: I did not make him use a condom.
COUNSEL: But you told the officer in August you did.
COMPLAINANT: Yes.
COUNSEL: What’s your explanation for just making that up? Why would you make that up?
COMPLAINANT: It’s two years ago, so I don’t know. I know what…
COUNSEL: Appreciate how that’s not a real good explanation for lying to the police, that, just because it was two years ago?
COMPLAINANT: Yeah, I know what I’m telling you right now is the truth, I can’t speak for what I’ve done two years ago.
COUNSEL: Now that you know he was very unfaithful to you, not a good boyfriend.
COMPLAINANT: Yes.
[61] I find myself distinctly uncomfortable with the Complainant’s evidence on all these points. I remember that she is a child witness and that inconsistencies on peripheral matters should be viewed more generously. I remember that she is testifying about events from two years earlier, and that two years is a long time in a teenager’s life.
[62] But the Crown’s burden never shifts. The standard of proof never shrinks.
[63] I have given this case much consideration. In the end, I do not accept the evidence of the Defendant. He was not a credible witness. On the basis of the Complainant’s evidence, I am very suspicious that the Defendant did exactly what she said he did. It is far more likely that she is telling the truth than that she is fabricating the allegations out of vengeance. I cannot, however, accept her evidence as proof of the allegations beyond a reasonable doubt. That is a high standard, not easily met. It has not been met in this case.
[64] The Defendant will be found not guilty.
Released: 9 May 2025
Signed: Justice S. G. Pratt