ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 336/11

DATE: 20121212

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

W.C.

Constantinos Stratos, for the Crown

John Dennis, for the accused

HEARD: December 3-6, 2012

Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.

Mr. Justice Kenneth L. Campbell:

I

Overview of the Case

[1] The accused, W.C., is charged with committing three sexual offences against a young complainant, D.B. More particularly, the accused is alleged to have committed the offences of sexual assault, sexual touching of a young person by a person in a position of trust or authority, and sexual interference, contrary to sections 271, 153.1 and 151 of the Criminal Code, R.S.C. 1985, chap. C-46, respectively. The offences are all alleged to have been committed during the eight month period between November 1, 2007 and June 30, 2008.

[2] At the time of the alleged offences, the complainant was 11 years of age, and attending grade six. The accused was 55 years old and drove the school bus that took the complainant back and forth to school each day. Essentially, the complainant alleged that, on an average of two or three times each week, for most of her school year in grade six, the accused would touch or grab her buttocks when she was walking past him as she left the school bus at the end of the day. The accused denied ever touching the complainant inappropriately. The essential issue in this case is, accordingly, whether the Crown has proven the guilt of the accused in relation to these three sexual offences beyond a reasonable doubt.

[3] Before turning to that issue, however, it will be useful to review in more detail the important aspects of the evidence.

II

The Key Aspects of the Evidence

A. The Testimony of the Complainant

1. Introduction

[4] The complainant D.B. is now 16 years of age and attending high school in grade 11. She testified by closed circuit television outside the courtroom. On December 16, 2010 she provided a detailed, videotaped statement to the police containing her allegations against the accused. In making this statement she promised to tell the truth, and was fully warned and advised as to the potential consequences of making false statements to the police. At the time of this statement, the complainant was 14 years of age and in grade nine. In her trial testimony, D.B. viewed and adopted as truthful the contents of this videotaped statement and it was admitted into evidence, without objection, pursuant to s. 715.1 of the Criminal Code. The complainant also gave viva voce testimony detailing her allegations against the accused.

[5] In her videotaped statement and in her viva voce testimony, the complainant described how she was repeatedly sexually molested by the accused.[^1] It happened when she was in grade six. She was 11 years old at the time. At the time of the alleged offences, the complainant travelled back and forth to their school, on the bus driven by the accused, with her younger sister.

2. Travelling on the School Bus

[6] The complainant testified that, in the mornings on the way to school, she and her sister were not the first students to be picked up by the accused. They were picked up at approximately 8:15 a.m., and they were around the fifth of a total of some ten stops made by the accused on his route to the school. On the return trip at the end of the school day, however, the complainant and her sister were usually the last students dropped off the bus. School finished for the day at 3:45 p.m., the buses all left at 4:00 p.m., and the complainant and her sister were usually home by 4:15 or 4:20 p.m. The complainant always sat at the back of the bus with her friends. Her sister usually sat with her friends toward the middle of the bus. The younger students usually sat closer to the front of the bus. The complainant estimated that approximately 15 students travelled to and from school each day on this bus.

[7] Of course, whenever students would enter or exit the bus, they had to walk past the bus driver as the stairs leading to the only door on the bus (except for the emergency exit at the rear) was located next to the driver’s seat.

[8] The complainant agreed that there was a young boy who did not ride the bus on Fridays. She agreed that the route taken by the bus was determined by whether this young boy was on the bus or not. She agreed that she would always have been the last off the bus on Fridays, but she testified that she was also last off the bus on other days as well.

3. The Alleged Sexual Offences

[9] According to the complainant, the accused was interested in her. When she got on the bus at the end of the day, he would smile or wink at her. D.B. testified that, at one point during the year – she could not recall when, the accused told her that, if he was her age, he would be “all over” her. This made her feel uneasy, as it meant that he was attracted to her physically, and the only thing stopping him was his age. She also complained that the accused would stare at her in the mirror located at the front of the bus. Sometimes he would smile at her in the mirror, but it was not a friendly smile.

[10] The complainant testified that, when they were leaving the bus at the end of the day, she would always ensure that her sister was in front. Her mother had given her clear directions in this regard. As theirs was the last stop on the route home, the complainant would be the last person on the bus. She testified that, when she walked past the accused, he would reach out and touch or grab her “bum.” When she looked back, the accused would chuckle. The complainant was not sure if her younger sister ever saw this touching. Her sister would have been six or seven years old at the time. The accused never touched her sister. The complainant testified that the accused did not touch her anywhere else on her body – just her “butt.” She usually wore jeans to school and this touching was always over top of her clothing.

[11] The complainant testified that the circumstances of the touching, which happened often, were always the same. D.B. estimated that this touching happened, on average, two or three times a week. She conceded that there may have been weeks when the sexual touching happened only once, but she testified that there was never a week when it did not happen at all. She testified that the touching started in November of 2007, after the accused returned from a month long absence, and continued until the conclusion of the school year at the end of June of 2008.

[12] The complainant testified that she never talked to the accused about this touching. However, when it first started, she told him, “don’t touch me,” but the accused just laughed.

4. The Telephone Call to the Accused

[13] The complainant testified that while she occasionally spoke briefly to the accused by way of a greeting when getting on the bus, she had never engaged him in a conversation, with one exception.

[14] With respect to this one incident, the complainant described how she once called the accused on the telephone. It was the day after the accused had finished working as a bus driver, and the complainant had waited for the new bus driver to pick her and her sister up at their usual location. The complainant testified that it had been raining and cold that day and their new bus driver had been late. He did not arrive to pick them up until around 10:00 a.m. After school she went home and called the accused on her home phone. She thought that she had been given the accused’s phone number from one of her friends, but agreed that, at one point, she thought the accused had given her his number. The complainant agreed that the accused had engaged in sexually inappropriate conduct with her before she made this call. The complainant testified that she made this call as a “dare between friends.” She explained that her friends had talked of giving the accused a “hug” when he finished his job as their bus driver, they convinced her to call him on the phone. She clarified that this was actually a call that she made after school, and that it was not the purpose of the call to get picked up, it was just to say “hello.”

[15] The complainant explained that, while the accused had been sexually molesting her for months at this point, she thought he was still a “good person.” He was not a mean person, and was nicer than her other bus drivers. Indeed, the complainant admitted that she liked the accused as a person, and thought that he was a “nice person.”

5. The Disclosure of the Alleged Offences to Her School Principal

[16] The complainant testified that she first disclosed these alleged sexual improprieties by the accused in late January or early February of 2010, when she was in grade eight, to her school principal. The complainant agreed that, while she thought that the touching by the accused was “bad” at the time it was happening, she did not tell anyone about the touching until more than two years after it started. She explained that, while she knew that the touching would have stopped if she had complained, it was “not easy” to make such an allegation to a teacher, social worker or her mother while it was happening. Indeed, the complainant testified that she had not intended to ever mention the offences by her bus driver, but it just “came out” in her discussions with her school principal. Further, the complainant offered that she was not the kind of person to talk openly about “her business” but rather was more inclined to take care of things herself.

[17] In grade eight the principal had become a source of comfort to her, and the complainant often went to her to discuss her problems. They developed a close relationship. D.B. agreed that, at that time, she was having some problems. She was depressed. She was throwing up, suffering from undiagnosed bulimia. She was “cutting” herself in the area of her wrists. She did not know why she was engaging in this self-destructive behavior. She did not feel that she was getting enough attention from her mother, who just had a new baby, and who had five other children. Indeed, she was not getting along with her mother at the time, and an allegation had been made that her mother had assaulted her. The complainant agreed that, at the time, the school principal filled a void in her life.

[18] At one point, the principal advised the complainant that she had 600 other students and did not have as much time for her as she did previously.[^2] Sometime thereafter, the complainant testified that, in continuing to talk to the principal about the stresses and problems in her life, she disclosed to the principal that she had been the subject of sexual harassment in her neighbourhood, and was sexually assaulted in the school library. These other incidents, the complainant agreed, were not especially serious, and certainly were not as serious as her allegations against the accused. Ultimately, the complainant agreed that she did not disclose her allegations about the accused at the same time. She explained that, at that point, she was simply “not ready” to disclose her allegations against the accused. Indeed, the complainant testified that she was not planning on telling anyone about the alleged sexual misconduct of the accused. She just happened to be in the principal’s office one day, and was crying and telling her about the issues in her life, and her allegations against the accused just “came out.”

[19] After disclosing the sexual molestation by the accused, the principal told the complainant that she would have to tell her mother about what the complainant had told her. The complainant replied affirmatively when the principal asked her if she would be scared to talk to the police. However, once the principal talked to the complainant’s mother, Child Protection Services became involved and the complainant ultimately provided the police with a statement as to the alleged sexual improprieties by the accused.

[20] In discussing the lengthy time period between the alleged sexual offences and her disclosure of those offences, the complainant explained that she did not realize that the conduct of the accused bothered her until more recently.

6. Conclusion

[21] The complainant testified that she would never make up an allegation of sexual assault against anyone. She knew that, if such an allegation was made, the accused person would “get in trouble with the police.” She understood the seriousness of her allegations, and testified that she would never make up such an allegation just to “get attention.” Indeed, she never wanted to tell her principal about the sexual touching by the accused. It was just something that she just blurted out. She would never make up such an allegation as that would be lying and wrong.

[22] The complainant testified that she was also aware that there would be serious consequences for her if she were to come to court and tell lies about the accused. She admitted that she would not want to be arrested and charged for providing false evidence. She testified that she would never lie in the first place, and if her evidence was a lie, she would have to say so.

B. The Testimony of the Complainant’s Younger Sister

[23] The complainant’s younger sister, Q.B., is now 11 years old and is in grade six. She gave her evidence, procedurally, in the same manner as the complainant. She too testified by closed circuit television outside the courtroom. On February 3, 2011 she provided the police with a videotaped statement. In her trial testimony, which she gave after promising to tell the truth, Q.B. viewed and adopted as truthful the contents of this videotaped statement and it was admitted into evidence, without objection, pursuant to s. 715.1 of the Code. Q.B. also gave further viva voce testimony.[^3]

[24] Q.B. testified that when her oldest sister, the complainant, was in grade six, she was in grade one at the same school. They both went back and forth to school together on the same bus, which was driven by the accused. The complainant sat at the back of the bus with her friends, while Q.B. sat with her own friends.

[25] Q.B. testified that she and the complainant used to be picked up first in the morning by the accused, and they were the last ones to be dropped off at the end of the school day. Sometimes she talked to the accused. Sometimes they laughed at his bald head. Sometimes the accused gave food to the students that were on the bus the longest. According to Q.B., the accused just did this to be nice as he was a nice man. She did not remember any “gestures” between the accused and the complainant.

[26] Q.B. testified that she did not remember who got off the bus first as between she and her sister at the end of the school day, but she recalled their mother telling the complainant to get her (ie. Q.B.) off the bus first.

[27] Finally, Q.B. testified that, on a couple of occasions, she saw the accused “whistle” to women who were walking along the sidewalk. She was not sure whether the accused knew these women or not. Q.B. did not mention this in her videotaped statement, and explained that she just remembered it “now” as she was testifying.

C. The Testimony of the Accused

1. Introduction

[28] The accused is now 60 years of age. He lives with his wife of many years. They have three children together. The accused has no criminal record, and has never previously been arrested or charged with any criminal offence. He testified that the allegations made against him by the complainant are completely untrue. While he was the complainant’s school bus driver, he never touched her inappropriately. While he worked as school bus driver for nearly five years, there had never been any allegations against him with respect to the touching of any other student. Prior to his job as a bus driver he worked as a machine operator, for the same company, for 31 years, until they closed their operation. It was then that he became a school bus driver.

2. His Work as a School Bus Driver

[29] The accused testified that, in his employment as a school bus driver, he had to secure an upgraded driver’s license and learn the internal company rules about driving and dealing with the children on the bus.

[30] The bus company had rules that the students on the bus were obliged to follow. They were posted, in both French and English, at the front of the bus, and part of accused’s job was to ensure that his student passengers understood those rules. For example, the students were not allowed to stand up on the bus while it was moving. If someone violated the rules, he would stop the bus and explain them.

[31] The accused agreed that one of the rules of his employment was that drivers were not to have physical contact with any of the students on the bus. The accused testified that he abided by that rule except in exceptional circumstances. He explained, for example, that on occasion a child would be fast asleep on the bus when they arrived at their stop and he would have to tap them on their shoulder to rouse them. Also, if one of the students slipped on the stairs, he might give them a helping hand to exit the bus.

[32] The accused testified that the school bus that he drove had two mirrors on each side of the bus to check other vehicles and any blind spots at the sides of the bus, and one two-foot mirror in the middle to permit him to observe the behavior of the students on the bus. When he started his job as a bus driver he was told that it was company policy that he check his mirrors every eight to ten seconds. He followed that policy.

[33] The accused explained that, while he learned the names of his passengers so that he could identify and greet them as they got on the bus or say good-bye at the end of the day, there was not really any other conversation between he and the students. On occasion, however, he would tell them to “hold the railing” if it was a wet day, or tell them to “stop and look both ways” if they had to cross the street after leaving the bus.

[34] The accused testified that he also did other bus driving. In addition to his morning and afternoon trips back and forth to the school, he drove “charters” with other schools, driving to various places of interest. In the summer he also drove children to their summer camps. He also drove to a gymnasium. In addition, on Sundays, as a voluntary commitment to his church, the accused would drive around his community to pick up children for Church.

[35] As to the suggestion by the complainant’s sister, the accused denied ever whistling at any women on the street. He testified, however, that occasionally he would see women from his church on the street and would wave to them.

3. His Contact With the Complainant

[36] The accused testified that he first spoke to the complainant at the end of September of 2007. He had been assigned to drive an updated route, and he contacted the various students on his route to advise them of the times and whereabouts of their various pickups. When he called the complainant’s home, he spoke directly to her, and told her that he would be picking her up at approximately 8:20 a.m. and dropping her off at approximately 4:30 p.m. at a particular location.

[37] The accused was able to detail his driving route back and forth to the school, and how that changed depending upon the students on the bus any particular day.

[38] The accused testified that, for the month of October in 2007, his route was such that the complainant and her sister were always dropped off last in the afternoon. He recalled how the complainant, on one occasion in October, asked him why she was last to be dropped off at her stop. In response, the accused passed her the sheet of paper that outlined the details of his route.

[39] At the end of October, the accused went to his supervisor and proposed a change to the afternoon “return” route which affected the last two stops. This change made it easier for the accused, and safer for the students as it allowed him to drop them off on the right side of the street where they would not have to cross the road. This proposed change was accepted and, commencing in November of 2007, the accused followed this revised driving route in the afternoon. This meant that, on Monday through Thursday of each week, the complainant and her sister would not be the last children to be dropped-off at the end of the day, but that on Fridays, when the young boy did not attend school, they would be the last students returned home. That was the return route schedule in place for the remainder of the school year, except of course when a student was absent.

[40] As to the specific allegations of sexual touching by the complainant, the accused testified that they were not true. He stated that he did not touch the complainant as she alleged and that, indeed, he had never touched any child like that in his life. He denied ever sexually molesting any child in his life. The accused testified that his relationship with the complainant was no different than his relationship with any of the other students he took back and forth to school. It was a formal but friendly relationship. The accused had no idea why the complainant was making these allegations against him. He denied that he was attracted to the complainant or that he playfully flirted with her or flattered her. He denied ever telling her that, if he was her age he would be “all over her.”

[41] According to the accused, he had physical contact with the complainant on only one occasion. It happened after he had been driving the school bus for only approximately a week. As the bus was approaching the complainant’s stop on the return trip home in the afternoon, the complainant got out of her seat and approached the front of the bus. When the accused applied the brakes to stop, the complainant began to fall forward towards the windshield. The accused testified that he quickly and instinctively reached out his right arm and gripped the metal frame located at the center of the bus to stop her from falling into the windshield or the front of the bus. Her shoulder made contact with the back of his arm near his elbow and then she bounced back. He did not make any contact with her buttocks. The complainant then quickly exited the bus. The accused spoke to her the next day about this incident, and told her that this was “not cool,” and that she was to remain in her seat until the bus had fully stopped. Thereafter, she abided by that admonition. The accused testified that this was the only time he had any physical contact with the complainant. Apart from this incident, the complainant was a good passenger on the bus.

4. The Telephone Call From the Complainant

[42] The accused testified that, at the end of March of 2008, he left his employment as a bus driver for a period of approximately a couple of weeks. The Toronto Transit Commission (TTC) had accepted him, and he was to soon start his training for this new job. Ultimately, he decided that the TTC job would be too stressful for him and he was able to get his old job back as a school bus driver.

[43] On his final day of work driving the bus, before leaving for this TTC job, the accused told the students on his route that it would be his “last day” and that they would have a new driver the following Monday. The accused denied that any of the students gave him a “hug” upon learning that he was finishing his job as their bus driver.

[44] The accused testified that, on the following Monday, when the new bus driver was supposed to start, the complainant called him at home. The accused did not know how she had obtained his home telephone number as he had never given it to her. He surmised, however, that she could have obtained it from the telephone book, as his number was listed there, or she might have obtained it from his original telephone call in September (assuming her family had “caller ID” on their telephone service).

[45] The accused testified that, when the complainant called, he was out for his morning walk, and his wife answered the telephone. Upon his return, at approximately 8:40 a.m., he learned of the call from the complainant and “redialed” her phone number to speak to her. The complainant told him that they had been waiting at the bus stop location and were cold and wet from the rain. Apparently the complainant did not know that he had quit his job. According to the accused, he told her to stay close to the phone, so that dispatch could contact her to advise her about when the new driver would arrive. The accused testified that the complainant said: “Oh, we’re going to miss you though.”

5. Giving Food to Some of the Students

[46] The accused acknowledged that he was not supposed to give the children on his bus route any food or candy. There was always the risk of allergies. The accused admitted, however, that on three occasions he had provided some of the students with “chips and candy.” He explained that a cousin in export business had a left over box of chips and candy and suggested that he give them to his students. The accused testified that, on three occasions, on days when it was cold and snowy and it was getting late, he provided these chips and candy to the seven children, including the complainant and her sister, who were being delivered to the last four stops on his bus route. The accused denied that he had only given the chips and candy to the complainant, or only to girls.

III

Analysis

A. The Presumption of Innocence and the Burden of Proof on the Crown

[47] As constitutionally guaranteed by s. 11(d) of the Charter of Rights, the accused is presumed to be innocent. That presumption of innocence remains with the accused unless and until the Crown establishes his guilt beyond a reasonable doubt. That heavy burden of proof never shifts. The accused has no obligation to establish his innocence.

[48] As the accused testified in this case, in assessing whether or not the Crown has proven his guilt beyond a reasonable doubt in relation to these offences, I must apply the three important principles articulated by the Supreme Court of Canada in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. In other words: (1) if I believe the testimony of the accused that he did not commit these offences I must find him not guilty; (2) even if I do not believe the testimony of the accused that he did not commit these offences, if his testimony leaves me with a reasonable doubt of his guilt regarding any of these offences, I must find him not guilty of those offences; and (3) even if the testimony of the accused does not leave me with any reasonable doubt as to his guilt, I may only properly find him guilty of an offence if, based on the evidence that I do accept, I am satisfied beyond a reasonable doubt of his guilt regarding that offence.

[49] The application of these principles ensures that reaching a verdict does not turn into a credibility contest between the two main witnesses, and ensures that the presumption of innocence and the Crown’s burden of establishing the guilt of the accused beyond a reasonable doubt properly operate. See also: R. v. Y.(C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5.

B. Conclusion – The Testimony of the Accused Raises a Reasonable Doubt

[50] Applying these important principles in the circumstances of the present case, I am obliged to find the accused not guilty with respect to all three of the charged sexual offences. While I cannot say that I wholly accept all aspects of the testimony of the accused, I must say that his testimony does leave me with at least a reasonable doubt as to his alleged guilt.

C. The Frailties of the Evidence of the Accused

[51] There were some frailties in the evidence of the accused. Most significantly, it appeared to me that, in cross-examination, the accused was reluctant or hesitant to make any admission that would perceptibly assist the Crown, even when the admission would not actually incriminate him in the alleged offences, and the answer to the question seemed relatively obvious. However, instead of providing the answer would have been reasonably anticipated, the accused provided a more puzzling response.

[52] For example, the accused was hesitant to agree with the suggestion that the complainant was a “cute” girl, professing ignorance as the meaning of the commonly understood word “cute.” The accused also refused to answer the inquiry as to whether he found the complainant “attractive,” on the basis that he was unable to comment on whether she was physically attractive without consideration for her personality, and he did not know her well enough to understand her personality. However, most importantly, when cross-examined about the physical dimensions of the front of the bus, the accused professed not to recall whether they were such as would have permitted him to reach out and physically touch the students as they exited the bus. He adhered to this position notwithstanding the reality that he was a large man, with long arms and coincident reach, and he drove the same bus for a number of years. In the circumstances it is difficult not to conclude that the accused simply did not want to admit that he might have been physically able to touch the complainant as she exited the bus.

D. Reasons the Testimony of the Accused Cannot be Rejected

1. Honest and Truthful Witness

[53] Nevertheless, for a number of reasons, I cannot completely reject his testimony as simply incredible. First, there was nothing about his demeanor as a witness that would lead me to conclude he was being deliberately untruthful or dishonest in his evidence in denying the alleged offences. I watched him carefully as he gave his evidence and, in terms of his appearance and conduct in the witness box, and in his answers to questions, he appeared no less credible than the complainant.

2. Person of Good Character

[54] Second, the accused is a person of good character. He has no previous criminal record, and has never before been arrested or charged with any criminal offence. He is now 60 years of age and has a wife and family. He has been gainfully employed for decades. He worked in his capacity as a school bus driver for close to five years and there were never any other allegations made against him with respect to the touching of any other student.

[55] By providing this testimony, the accused clearly asserted his good character and placed his character in issue. See: R. v. Morris, 1978 168 (SCC), [1979] 1 S.C.R. 405, at pp. 347-349; R. v. McNamara et al. (No.1) (1981), 1981 3120 (ON CA), 56 C.C.C. (2d) 193 (Ont.C.A.) at p. 346-352; Affirmed: (1985), 1985 32 (SCC), 19 C.C.C. (3d) 1 (S.C.C.). The Crown led no evidence whatsoever to the contrary.

[56] This uncontradicted evidence of his good character is, accordingly, relevant to: (1) support the overall credibility and testimonial trustworthiness of the accused as a witness; and (2) establish the circumstantial improbability or unlikelihood that the accused would have committed the alleged offences. See: R. v. Dees (1978), 1978 2269 (ON CA), 40 C.C.C. (2d) 58 (Ont.C.A.) at p. 65; R. v. White (1997), 1997 2426 (ON CA), 32 O.R. (3d) 722 (C.A.); Leave denied: [1997] S.C.C.A. No. 248; R. v. Flis (2006), 2006 3263 (ON CA), 205 C.C.C. (3d) 384 (C.A.) at para. 37-53; Leave denied: [2006] S.C.C.A. No. 120; R. v. E.(F.E.) (2011), 2011 ONCA 783, 282 C.C.C. (3d) 552 (Ont.C.A.) at para. 67, 113; Indeed, in appropriate cases, evidence of the good character of the accused may be sufficient in and of itself to raise a reasonable doubt as to the alleged guilt of the accused. See: Mr. Justice David Watt, Watt’s Manual of Criminal Jury Instructions (2005) at pp. 163-166; R. v. Smith (2001), 2001 20968 (ON CA), 161 C.C.C. (3d) 1 (Ont.C.A.) at para. 99-101; Leave denied: [2002] S.C.C.A. No. 156; R. v. M., 2012 ONSC 2595, at para. 110-117.

[57] It is only fair to observe that as a matter of common sense, such evidence may be entitled to somewhat diminished weight in “sexual assault cases involving children,” as “sexual misconduct occurs in private and in most cases will not be reflected in the reputation in the community of the accused for morality.” See: R. v. Profit, 1993 78 (SCC), [1993] 3 S.C.R. 637, at pp. 637-638; Reversing: (1992), 1992 7513 (ON CA), 11 O.R. (3d) 98 (C.A.); R. v. B.(R.) (2005), 2005 30693 (ON CA), 77 O.R. (3d) 171 (C.A.) at para. 25-28; R. v. Prebtani (2008), 2008 ONCA 735, 240 C.C.C. (3d) 237 (Ont.C.A.) at para. 110; Leave denied: [2009] S.C.C.A. No. 153. At the same time, however, where the alleged sexual misconduct by the accused is said to have occurred in public places, then evidence of the accused’s good character may figure somewhat more prominently in evaluating the improbability of the accused committing the alleged offences. See: R. v. Strong, [2001] O.J. No. 1362 (C.A.) at para. 10; R. v. Lizzi (1996), 1996 21269 (ON SC), 2 C.R. (5th) 95 (Ont.Ct.Gen.Div.) at pp. 99-100.

[58] In all of the circumstances of this case, in my view, this evidence of the good character of the accused is entitled to some weight both in terms of my assessment of the credibility of the accused as a witness and in considering the improbability of him committing these alleged sexual offences. In this regard it is noteworthy that these sexual offences were alleged to have been committed by the accused while he was operating a school bus being driven on the public streets of Toronto, over an extended period of time, and almost invariably while the complainant was in the company of her younger sister.

3. The Testimony of the Complainant

[59] I appreciate that, in appropriate cases, the testimony of an accused may be rejected outright based upon a considered and reasoned acceptance of the truth of the testimony of the complainant beyond a reasonable doubt. See: R. v. D.(J.J.R.) (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont.C.A.); R. v. Jaura, [2006] O.J. No. 4157 (C.J.). Having carefully considered the testimony of the complainant, I conclude that this is not an appropriate case in which to wholly reject the testimony of the accused on this basis.

[60] While the complainant was, like the accused, generally speaking, a credible witness, there were aspects of her testimony that, viewed collectively, would render it imprudent to wholly accept her evidence as establishing the alleged guilt of the accused beyond a reasonable doubt – especially in the face of the credible denial by the accused. More particularly:

• No Corroboration: The complainant’s testimony that she was sexually molested by the accused stands alone and without corroboration or confirmation. I note this fact not because of any legal requirement for such corroboration (as there is no such legal requirement), but only as a matter of fact given the nature of the evidence in this particular case. While the complainants’ younger sister was with her, albeit in front of her, as she exited the school bus, she never saw the accused inappropriately touch the complainant. This absence of corroboration is a factor that can properly be taken into account in assessing whether or not the Crown has proven the guilt of the accused beyond a reasonable doubt. See: R. v. Camp (1977), 1977 1092 (ON CA), 36 C.C.C. (2d) 511 (Ont.C.A.) at p. 521; R. v. S.(N.), [2001] O.J. No. 3944 (S.C.J.); R. v. Seaboyer (1991), 1991 76 (SCC), 66 C.C.C. (3d) 321 (S.C.C.) at pp. 347-348, 352-354; R. v. G.(A.), 2000 SCC 17, [2000] 1 S.C.R. 439, at pp. 453-354; R. v. Vetrovec (1982), 1982 20 (SCC), 67 C.C.C. (2d) 1 (S.C.C.) at p. 8.

• No Steps to Stop the Sexual Molestation: The complainant acknowledged that she understood, at the time, that this alleged sexual touching of her by the accused was wrong, but that she took no steps to stop the touching from taking place. In her testimony, the complainant acknowledged that, this alleged ongoing sexual touching would have stopped if she had: (1) ever complained to her mother or anyone in authority at her school; or (2) if she had sought to exit the school bus before her sister (there were never any concerns that the accused might sexually molest the complainant’s younger sister). At the same time, the complainant acknowledged that she did not complain about these alleged offences until January or February of 2010. See: R. v. D. (D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 60-65; R. v. M. (P.S.) (1993), 1992 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont.C.A.) at pp. 408-409; R. v. B.(R.), at para. 29-31.

• Circumstances Surrounding Initial Disclosure: At the time the complainant first disclosed the alleged sexual offences by the accused, she was admittedly suffering through a variety of personal problems and mental health issues. She was not getting enough attention from her mother and was looking to her school principal to fill this void in her life. She was suffering from depression, an eating disorder, and was engaged in self-destructive “cutting” behavior. It was only after her school principal advised her that she would have less time to spend with her that the complainant began to make disclosure of increasing serious incidents of alleged sexual abuse, culminating with her complaint of sexual molestation against the accused. These circumstances, viewed collectively, objectively undermine the reliability of the complainant’s disclosure of her allegations against the accused.

• Changing the Route Home – Reduced Opportunity: According to the complainant, and as reflected in the allegations in the indictment, these sexual offences by the accused did not commence until November of 2007. The accused testified, coincidentally, that it was at the very end of October of 2007, that he went to his supervisor and requested (and was granted) permission to change the afternoon return route. Accordingly, starting in November of 2007, the complainant and her sister were only dropped off last on Fridays, whereas previously they had been the last students to be returned home every day of the week. One must wonder why, if the accused was attracted to the young complainant and was about to start sexually molesting her, that at he would consciously take steps that would so significantly reduce his opportunity to do so.

• Her Conduct Toward the Accused – The Accused Was a Nice Man: There are aspects of the complainant’s testimony that seem oddly inconsistent with her allegations that she was sexually molested by the accused for most of her grade six school year. The complainant testified that she never planned to tell anyone about this alleged sexual molestation, as she did not want to get the accused in trouble, but it just came out in her emotional discussions with her school principal. Indeed, like her sister, the complainant described the accused as a “nice” man and a “good person,” and someone that everyone liked. It is hard to understand how the complainant could describe the accused in these positive terms given her allegations of sexual molestation. Similarly, it is difficult to appreciate why the complainant would telephone the accused just to say “hello,” even on some kind of “dare” from her friends, if the accused had been sexually molesting her for months previously.

[61] This analysis should not be interpreted as a wholesale rejection of the testimony of the complainant based upon any perceived incredibility or reliability in her or her evidence. Indeed, the complainant seemed like an honest young woman trying to tell the truth as to what she says happened to her while being driven home from school on the bus by the accused. She clearly testified that she would never lie and that, if her allegations were not true, she would feel obliged to say so. She maintained that her allegations of sexual molestation by the accused were true. I offer this analysis of her testimony only to illustrate that there were some frailties inherent in her version of the events that render it impossible for me to simply accept her version of events in its entirety, and at the same time reject the evidence of the accused and conclude, in the result, that that Crown had established the guilt of the accused beyond a reasonable doubt.

IV

Conclusion

[62] For these reasons, I have concluded that the testimony of the accused, denying his alleged involvement in these offences, against the backdrop of all of the other evidence in this case, causes me to be possessed of a reasonable doubt as to his guilt.

[63] In the result, I find the accused not guilty on all three criminal charges before the court. The Crown has, in all of the circumstances of this case, failed to prove these charges beyond a reasonable doubt.

Kenneth L. Campbell J.

DATE: December 12, 2012

COURT FILE NO.: 336/11

DATE: 20121212

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

• and -

W.C.

REASONS FOR JUDGMENT

Kenneth L. Campbell J.

Released: December 12, 2012

[^1]: Unless otherwise indicated, all references to the testimony of the complainant include reference to both the allegations made in her videotaped statement and the allegations made in her viva voce trial evidence.

[^2]: When the complainant first began her relationship with the woman to whom she ultimately disclosed the accused’s alleged sexual improprieties, the woman was the vice-principal of her school. By the time the complainant made this disclosure to her, however, the woman had been promoted to become the principal of the school.

[^3]: Again, unless otherwise indicated, all references to the testimony of the complainant’s sister include reference both to her videotaped statement and her viva voce trial evidence.