SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: YC-10-50000002
DATE: 20120112

RE: R. v. D.C., a young person within the meaning of the YCJA

BEFORE: Justice E. P. Belobaba

COUNSEL:
Valerie Culp for the Crown
Neil Gregson for the accused

HEARD: January 3, 5 and 6, 2012

ENDORSEMENT

A non-publication order has been made under s. 486.4(1) of the Criminal Code prohibiting the identification of the complainant and the accused.

[1] This case involves a historic sexual assault that allegedly occurred almost forty-one years ago in the summer of 1971. At the time, the complainant, PC, was 12 years old; the accused, DC, was 14 years old. The complainant says DC lured her to his home, threatened her with a knife, and proceeded to have sexual intercourse with her without her consent.

[2] The complainant went to the police in 2009 when she was 51 years old. The accused, then 53, was charged as a youth under the provisions of the applicable Criminal Code [1] with rape, sexual intercourse with a female under the age of 14, common assault and threatening death.

[3] This was a short, judge-alone trial. Crown counsel called four witnesses: the complainant; two childhood friends, Debbie and her older brother Robert; and the investigating police officer, Detective Hedgeman. The defence elected to call no evidence.

[4] Both sides agree that the proper verdict is either guilty on all counts or not guilty on all counts. At the conclusion of the trial, I found that the charges had not been proven beyond a reasonable doubt and I acquitted the accused on all counts, with reasons to follow.

[5] These are my reasons.

The law of reasonable doubt

[6] Historic sexual assaults have always been difficult to prove. Years ago, prosecutions were rare and successful prosecutions even more so. Today the criminal justice system is more accommodating. We no longer require evidence of corroboration and we understand and more readily accept the concept of “recovered memory” and the many valid reasons for delayed reporting.

[7] Nonetheless, even today, historic assaults of the pure “she said, he said” variety remain a challenge for prosecutors. And they remain a challenge, even in cases where the accused chooses not to testify, because of the standard of proof.

[8] It is not enough for the Crown to show that DC is probably guilty. Proof of probable guilt is not proof beyond a reasonable doubt. The law requires that DC’s guilt on the four counts must be established beyond a reasonable doubt based on the whole of the evidence. [2] If after reviewing all of the evidence – that is, the evidence of the Crown’s four witnesses, in chief and under cross-examination, and all related exhibits – I am not sure that DC committed the offences alleged, I must find him not guilty.

The basis for reasonable doubt

[9] It is certainly possible that PC is telling the truth about what happened to her in the summer of 1971 - how she was lured to DC’s house with promises of a party and “killer weed”, threatened with a 10 to 12 inch knife and then raped. In fact, given that no evidence was called by the defence, I can go further and say that on the evidence presented a trier of fact could well conclude that PC probably was raped and threatened by the accused just as she described.

[10] I note in particular that both Debbie and Robert “confirmed” PC’s evidence about how she told each of them that DC had raped her. She told Debbie soon after it happened and Robert many years later when Robert called PC, mentioned DC’s name and she “exploded” on the phone. I use the word “confirmed” advisedly because Debbie and Robert were simply repeating what the complainant had told them – obviously hearsay. However, as the Court of Appeal noted in C.B., although this evidence cannot be used for the impermissible purpose of confirming the truthfulness of the complainant’s allegations, it can be used “for the permissible purpose of showing the fact and timing of the complaint which might assist the jury in its assessment of the truthfulness or credibility of the complainant.” [3]

[11] Debbie’s and Robert’s evidence on this point allows me to ascribe a large measure of credibility to PC’s overall narrative – at least enough to reach the level of probability. However, on the whole of the evidence, I am not persuaded beyond a reasonable doubt.

[12] A number of questions and concerns remain and, in combination, provide the basis for reasonable doubt. I say “in combination” because none of the questions or concerns, as set out below, is sufficient by itself to create a reasonable doubt, but together they are. I refer in particular to the following:

(i) Why didn’t PC tell Debbie, her best friend, that DC had invited her to the party at his house? PC says she had a crush on DC, thought he was 16, and was very flattered that he had asked her. Debbie would in all likelihood have found out about the party because her older brother Robert, who was close friends with DC, would have been invited as well. PC’s explanation as to why she didn’t share this exciting invitation with her best friend – because Debbie wasn’t invited - was not convincing.

(ii) How is it possible that a small house that was “always full of people” (according to Robert who was a regular visitor) was completely empty on a weekday afternoon at 3 p.m.? Robert testified that DC lived with his mom, dad and stepfather, two siblings, including a sister who was “always in her bedroom.” He also remembers seeing young kids in the house. Yet when PC arrived for the party on that June afternoon in 1971, the house was completely empty, except for her and DC.

(iii) DC had a bedroom in the basement, personalized with a black light and rock posters – that’s where he and Robert always hung out. Why didn’t DC take PC down to his own bedroom? Why did he force her into someone else’s bedroom on the main floor?

(iv) PC says she was only in DC’s house once, the day of the alleged rape. She also says that everything happened very quickly – from the consensual kissing to DC trying to grab her breasts, to her trying to leave, to DC forcing her to the bedroom by locking his arm around her neck. PC says she was terrified and left as soon as it was over. Yet, more than 35 years later, PC is able to provide a reasonably accurate diagram of the floor-plan that not only shows the location of the various rooms but also notes the precise placement of the refrigerator and stove and the basement stairwell. On cross-examination, PC could not remember any paint or carpet colours or wall-hangings – only the floor-plan. How was she able to memorize and retain such a level of detail when “it all happened so quickly” and she was “terrified for [her] life”? Had she in fact been over to DC’s house on other occasions? Or did she ask Robert to provide her with a sketch of the main floor before she decided to go to the police?

(v) PC says that DC produced a 10 to 12 inch knife after he threw her onto the bed and then used it to threaten her. Where did the knife come from? DC was wearing a tee shirt and jeans. He allegedly grabbed PC in a “choke hold” (Crown counsel’s description) and dragged or forced to go into the back bedroom. Was the long knife in his back pocket from the outset with the handle jutting out? [4] Did DC stop in the kitchen en route to the bedroom to pick it up? Was the knife already in the bedroom within easy reach? PC cannot recall. She is able to make keen observations and retain a fairly detailed memory of the floor-plan but cannot recall how the knife materialized or where it came from.

(vi) I note the inconsistencies in PC’s evidence about the actual rape as described at the preliminary hearing and at the trial before me - for example, about which hand DC used to rip off her panties; which of her shoes fell off; whether DC ejaculated; and whether she saw his penis. I don’t want to dwell unduly on these apparent inconsistencies because a complainant’s ability to recall physical details of something as horrifying as a rape can be uneven and inconsistent, particularly when the complainant is describing something that she says happened almost 40 years ago when she was still a child. These inconsistencies are certainly not in themselves a basis for reasonable doubt but they are a source of concern.

(vii) Debbie testified at trial that it was only after she had asked PC why all the boys in the neighbourhood, including DC, were calling her names (i.e. were calling her a “cocksucker”) that PC told her that DC had raped her. Defence counsel argues that PC’s accusation was simply retaliatory – she had a crush on DC and she was now being told that he and the other boys were calling her a cocksucker. If Debbie’s trial evidence about the conversational sequence is true, it could be significant. However, I am not persuaded. When Debbie gave a statement to the police, she said nothing about telling PC that the boys were calling her names. She said she went over to PC’s house because PC was not returning her calls or coming out. She asked her friend what’s wrong and PC told her that DC had raped her. Debbie’s insistence at trial that she called the police back with this additional information (about DC and the boys calling PC names and PC then accusing DC of rape) was denied by Detective Hedgeman. Crown counsel submits that Debbie decided to add “the boys are calling you a cock-sucker” component to her story after having a falling out with PC in recent years. However, there is no evidence when this falling out occurred or even if there was any such falling out. I also note that at the preliminary hearing Debbie did say that she thought that she told PC that the boys in the neighbourhood were talking about her and not saying nice things about her. In sum, while I am not completely persuaded by Debbie’s trial evidence that PC’s disclosure about the rape was made after hearing that DC and the other boys were calling her a cocksucker, it remains a possibility and another reason for concern.

[13] Defence counsel submits that the rape allegation in the summer of 1971 was a complete fabrication that has allowed PC to blame everything that’s gone wrong in her life –quitting school in grade nine, hanging out with a very bad crowd, the bad relationships, the drugs and all the resulting problems – on this one sexual encounter. By fabricating this rape memory, argues defence counsel, PC has been able over the last several years with the help of her therapist to scapegoat the boy she had a crush on and achieve absolution for a life gone wrong from her mother (whom she made a point of calling before reporting the matter to police).

[14] Despite defence counsel’s impassioned closing, I cannot even begin to make this kind of finding on the evidence before me. For my part, it is sufficient that I focus on what allegedly happened in the summer of 1971 and whether it has been proven beyond a reasonable doubt.

Disposition

[15] For the reasons set out above, the charges have not been proven beyond a reasonable doubt.

[16] I find DC not guilty on all counts.

Belobaba J.

Date: January 12, 2012

[1] The provisions of the Criminal Code of 1969.

[2] R. v W.(D.) 1991 93 (SCC), [1991] 1 S.C.R. 742.

[3] R v. C.B., 2008 ONCA 486, [2008] O.J. No. 2434 (C.A.) at para. 46.

[4] One would probably not have jammed the knife into a back pocket with the blade sticking out.