COURT FILE NO.: 11-SA5012
DATE: 20121221
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
A.F.B.
Defendant
Paul Attia, for the Crown
Anne-Marie McElroy, for the Accused
HEARD: December 17, 19, 20, 2012
REASONS FOR JUDGMENT
Toscano Roccamo J. (Orally)
NATURE OF PROCEEDINGS
[1] A.F.B. is charged with two counts of sexual assault on A.R., contrary to section 271(1) of the Criminal Code.
BACKGROUND
[2] The charges arise out of events that took place on November 27, 2010 in the City of Ottawa at the apartment of H.B. and D.T.. A.F.B. and his girlfriend, also known as Mama A.., were regular weekend guests of A.F.B.’s uncle H.B. and D.T.. A.R., who was a resident of Cornwall and who is a cognitively delayed adult, was also spending the weekend there, and was in the company of her boyfriend, D.B., who is the brother of the accused. She had spent other weekends in the company of H.B. and D.T., and had developed a close friendship with D.T. akin to that of mother/step daughter relationship. She was known to them as “A.R.”.
[3] There is little doubt that alcohol was consumed by A.F.B., as well as H.B.. I did not hear evidence that D.T., Mama A. or A.R. had consumed any alcohol. At some point in the evening of November 27, 2010, after D.B. had left the apartment and H.B. had gone to bed, the events alleged are said to have occurred.
THE ISSUE
[4] A.F.B. categorically denies any sexual assault on A.R.. He contends that they enjoyed a good relationship and that A.R. would have had no cause to make allegations of sexual assault. It is his contention that A.R. grabbed him by the crotch in the hallway of his Uncle’s apartment near the bathroom and afterwards followed him into the bathroom. He denies any sexual touching occurred in the bathroom, other than consensual touching and that no sexual assault occurred elsewhere in the apartment.
ANALITICAL FRAMEWORK
[5] In this trial, as in any criminal trial, an accused is presumed innocent until proven guilty by the Crown. The burden of proof is on the Crown Prosecutor throughout the trial to demonstrate guilt beyond reasonable doubt. If reasonable doubt exists, an accused must be acquitted. In R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada defined “reasonable doubt” as a doubt based on reason and common sense that flows from the evidence or the lack of evidence. Later, in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, the Supreme Court described “reasonable doubt” as a concept that falls closer to absolute certainty then to proof on a balance of probabilities. In other words, if the Crown Prosecutor only proves that an accused probably or likely committed the offences with which he is charged the Crown will not have met the burden of proof which is proof beyond reasonable doubt.
[6] When a case rests largely on the credibility of Crown witnesses versus that of an accused, as it does clearly in this case, it is not acceptable for the Court to make a finding of guilt by choosing the evidence of one over the other, unless the Court completely rejects the evidence of the accused, and is left in no reasonable doubt of the guilt of the accused by the evidence the Court accepts.
[7] The Supreme Court of Canada in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 laid out the analysis a Court must apply in a case such as the one before me. The law requires a Court to find the accused not guilty if it believes the testimony of the accused. Second, even if the Court does not believe the testimony of an accused but is left with a reasonable doubt by his evidence, it must acquit. This notion is founded on the corner stone of our system of justice: the presumption of innocence. Finally, if the Court does not believe the accused and is left in no doubt by his evidence, but on other evidence is not convinced beyond a reasonable doubt of the guilt of an accused, a Court must acquit. A Court may only convict an accused if the rest of the evidence it does accept proves guilt beyond a reasonable doubt.
[8] The Court of Appeal in R. v. J.J.R.D. 2006 40088 (ON CA), [2006] O.J. No. 4749 has added, however, that:
- ... An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.
[9] The test in W.D. is not an easy test to apply, particularly where there is no independent evidence to corroborate the allegation or the account of events as described by a complainant, in this case, A.R.. However, D.T. testified that she made observations before and after the events that transpired between A.F.B. and A.R. in the bathroom, and more importantly witnessed a sexual assault by A.F.B. upon A.R. in the kitchen afterwards. Ms. D.T. further testified that on the following morning, she overheard A.F.B. apologize to A.R. for what he did the night before.
[10] On behalf of A.F.B. it is not suggested outright that A.R. and D.T. have colluded and have concocted these allegations, but that because of their close bond, D.T.’s protective attitude towards A.R., and A.R.’s limited cognition she was susceptible to somehow parroting what was put to her by D.T..
[11] In considering A.R.’s evidence, I am guided by the Supreme Court’s direction in R. v. B (G), 1990 113 (SCC), [1990] 2 S.C.R. 3, and the common sense approach offered in R. v. W. [R.], [1992] 2 S.C.R. that a court is not to set too high a standard for corroboration of the evidence where an adult testifies for the Crown about events which occur when the complainant was a child. Of course in the case before me, A.R. was an adult at all material times; however, it is admitted that she is cognitively delayed notwithstanding her 27 years. Indeed, I observed her behaviours and verbal expression in the course of a videotaped statement she provided to police on January 5th, 2011, as well as her testimony from a child‑friendly courtroom in these proceedings. It was evident that she is intellectually limited and disinhibited and presents as a very immature adolescent. She is also admitted to be very tiny and slight of frame. Therefore, I consider the Supreme Court’s direction in R. v. B (G), as well as R. v. W [R.] instructive where I consider inconsistencies in her evidence as to peripheral matters such as time and location. These are things that need to be considered in the context of the mental age of the witness and in relation to the entirety of her evidence on the matters in issue.
[12] The Court of Appeal further refined the governing principles in the assessment of credibility in R. v. H.C., [2009] ONCA 56, where it said:
“Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately
i. observe;
ii. recall; and
iii. recount
events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability; a credible witness may give unreliable evidence”.
I now turn to the evidence of A.F.B.
A.F.B.
[13] A.F.B. is a 41 year old man who gave his testimony in a simple and straightforward manner. Although at times during his cross-examination he appeared to hesitate, overall, I found he did not appear flummoxed or confused by the questions put to him and responded without difficulty.
[14] He testified that the day in question, A.F.B. and his then fiancée, Mama A. were visiting for the weekend at the home of his H.B. and D.T.. His brother, Don, and A.R. were also visiting. His recollection was that the company seemed to get along well through the day until a certain point after Don left and A.R. returned to the home after 8:00 p.m.
[15] A.F.B. confirmed that he consumed 12 pints of beer between 2:30 in the afternoon and 12:30 p.m. that night, and had had one meal over that timeframe, that was supper at 5:00 p.m.
[16] After A.R. returned to the apartment, she sat in a lazy boy chair behind D.T. while the others sat at the table. A.F.B. observed that A.R. was acting out of the ordinary by picking her nose and putting her hands down her pants and her top. He expressed disgust by what he saw.
[17] Afterwards, A.R. rose to go to the bathroom and was there approximately 5 to 10 minutes when he, too, went to relieve himself. While crossing each other in the hall, A.F.B. asserts that A.R. grabbed him by the crotch. He said he did nothing in response at this point but went into the bathroom and she followed him and closed the door behind her.
[18] He asked her why she grabbed him by the crotch. He said that she had a blank stare on her face and then she hugged him and he responded by pinching her in the bottom, saying “how do you like that”. His perception of her reaction was that she was not scared or was evidently not offended because she giggled.
[19] After hearing commotion in the hallway and Mama A. asking what was going on, A.R. left the bathroom first and joined D.T. in the dining room while he went to get water for himself and Mama A. to take their medications before going to bed.
[20] A.F.B. denied that A.R. came into the kitchen but that shortly after, D.T. approached him in a hysterical state, calling him every name in the book and accused him of sexually assaulting A.R..
[21] A.F.B. described the kitchen in such a way as to suggest that a person sitting in the dining room would have had an obstructed view of persons at the fridge in the kitchen, to use his words, as the fridge door “kinda” opens towards the dining room. He did not say whether any obstruction would disappear or at least diminish at different vantage points in the dining room.
[22] The next morning he apologized to A.R. for pinching her in the bottom after Mama A. told him D.T. suggested this.
[23] Under vigorous cross-examination, A.F.B.’s version of events seriously faltered.
[24] He acknowledged that, due to a previous conviction for sexual assault in 1991, which appears in his criminal record filed as Exhibit 2 at trial, he was both aware and cautious about any circumstances that might give rise to allegations of sexual assault.
[25] While he maintained that he never grabbed A.R.’s crotch or breast, he admitted that A.R., at no time, invited him to touch or pinch her bottom or consented to this, nor placed his hands on her bottom. He agreed that, in the circumstances, there was a sexual assault and, given the amicable history between them, he could not think of a reason she would make up allegations of sexual assault.
[26] A.F.B. agreed that he told police he was not attracted to A.R., as she had short hair, was petite, under developed and looked like a boy. He told his brother Don, he was “going gay” because he was going out with her.
[27] Under cross-examination, he embellished his earlier evidence in chief to add that A.R.’s behaviour that night while picking her nose and touching herself was not an isolated event but that she always did this.
[28] A.F.B. believed A.R. was “hitting on him” but agreed that pinching the bottom of a mentally delayed woman whose behaviour disgusted him would amount to sexual assault.
[29] He could not explain his decision to grab or pinch A.R.’s behind, but agreed that while he was not drunk, he was affected by alcohol. However, he denied that he was an alcoholic; said that he did not drink often and was under medication for tremors and nerve damage to his neck and back; therefore, his consumption of 12 pints that day would have been quite notable for a man unaccustomed to drinking.
[30] A.F.B. agreed that he had a choice to simply leave the bathroom or turn away from A.R. in the hall had she initiated matters, given his awareness from his prior conviction for sexual assault of the need to follow the rules and behave on the “up and up”. He agreed he could have waited before going into the bathroom after A.R. grabbed him, and could have distanced himself from her.
[31] He also acknowledged that there were similarities in the account of events offered by A.R. and his own, although he insisted that A.R. at no time came to the kitchen while he was there after leaving the bathroom.
I now turn to the evidence of A.R..
A.R. a.k.a. A.R.
[32] A.R., through her videotaped statement adopted at trial, and as supplemented by her evidence at trial, testified that A.F.B. was drinking at the home of H.B. and D.T. while visiting with his girlfriend, Mama A. and while she and her boyfriend, D.B. were also visiting. She said he was drunk or “feeling good” at the material times.
[33] D.T. told her that A.F.B. had been “eyeing her”, and she noted it too, but to a lesser extent.
[34] At some point in the evening after her boyfriend Don had left and H.B. had gone to bed, she went to the bathroom. She stated A.F.B. followed her from behind, pushed the door shut, and pushed her near the door. Then while he was face to face, and as she tried to open the door, he grabbed her by the crotch and over her breast on top of her clothes. She stated she did not like it or want it.
[35] In cross-examination, she vehemently denied the suggestion that she had previously grabbed A.F.B.’s crotch in the hallway, while horsing around, or that she was fully engaged in playful behaviour when he pinched her bottom afterwards. She denied that she followed him into the bathroom.
[36] I noted some inconsistencies in A.R.’s testimony as to events in the bathroom. In her videotaped statement to police she claimed that she was closest to the door with her back to it and was facing A.F.B. when he touched her. At a suggestion made by defence counsel, A.R. then said they in fact switched places. However, at the preliminary enquiry, her testimony was that A.F.B. touched her in the crotch and the breast while she had her back to him. In cross-examination, she admitted her memory was unclear about this.
[37] A.R. also admitted that if she was attempting to push A.F.B. away with her hands as she had offered in her testimony in chief, with the door at her back and behind her, after switching places, then it would be difficult to both push A.F.B. away and try to open the door behind her. Indeed, her actual demonstration as to how this would have occurred was confusing in that she referred to one hand in testimony but demonstrated her actions using a different hand.
[38] A.R. testified that the door to the bathroom was pushed open by Mama A. and D.T. and that she then left the bathroom in an angry state.
[39] A.R. testified that D.T. then became verbally abusive towards A.F.B. and sat her at the table in the dining room to recount what had happened in the bathroom.
[40] In the police interview, she stated that A.F.B. pinned her against a cupboard in the kitchen and touched her in the crotch and breast area over her clothes. However, at the preliminary enquiry, she testified that she was at the fridge with her back to A.F.B. when he grabbed her crotch and breast from behind. At trial, she testified that D.T. came into the kitchen at this point and began to yell all manner of profanities at A.F.B.. A.F.B. and Mama A. then left to go to bed in the spare bedroom.
[41] After telling D.T. what A.F.B. had done to her, A.R. testified she slept in D.T.’s bed for a while but later moved to the couch in the living room even though A.F.B. was still in the apartment.
[42] The next morning, she testified that she was in the kitchen with A.F.B. and Mama A. when he said “sorry” to her.
[43] In cross-examination she admitted she had been wrong to testify in chief that after these events H.B. did not allow his nephew back into his apartment. She admitted that she had seen A.F.B. at the apartment again before Christmas of that year.
The second and last witness called by the Crown was D.T..
D.T.
[44] D.T. is a middle aged woman who disclosed that she had an anxiety condition for which she took medication; she was nervous about testifying and had other worries including the precarious health of her spouse, H.B.. It was evident in parts of her testimony that she continues to be troubled by anxiety, and was at times clearly overwrought and emotional. However, I noted that she was forthright and plainly stated when she was unclear about some matters. From the manner in which she testified, I am satisfied that while she may not be mentally delayed as is the case for A.R., she is clearly very unsophisticated.
[45] In her examination in chief, she recalled that on the day in question all was well throughout the day in the company of her husband H.B., A.F.B., Mama A., D.B. and A.R.. However, as the day progressed, and A.F.B. drank alcohol into the evening with H.B., she observed him eyeing A.R. and was concerned that something would happen to her. She suggested she tried to signal concern to Mama A. about A.F.B.’s behaviour but said nothing to her as A.F.B. was present throughout and for fear of upsetting Mama A.. In any event, at some point A.F.B. had a nap but this only served to give him a “second wind” after which he continued drinking and continued eyeing A.R..
[46] She recalled that while she was doing supper dishes in the kitchen with Mama A., A.F.B. stated that he wished to speak to A.R. privately in the bathroom. D.T. questioned why he would need to talk with her in the bathroom as opposed to the living room, but said he was insistent that he should speak privately to A.R..
[47] When the conversation in the bathroom took longer than expected, she and Mama A. went to the bathroom to investigate but Mama A. tripped over their cat on the way there and struck the bedroom door where H.B. was sleeping. She expressed fear that H.B. would wake from the commotion and that a fight would ensue.
[48] D.T. recalled that the bathroom door was locked, and that Mama A. tried to get A.F.B. to come out of the bathroom. Neither one of them witnessed what occurred inside the bathroom. She then recalled the bathroom door opened, but she could not recall who came out first. Her recollection was that A.R. was very upset when she came out of the bathroom.
[49] Because she was very anxious, she asked A.R. to get her a glass of water. She was unsure if A.F.B. was in the kitchen having a beer, but from where she sat in the dining room at her husband H.B.’s chair, she was able to see A.R. as she opened the fridge door to get her water from the dispenser. She then witnessed A.F.B. grab A.R. at the crotch and part of her bottom and breast from behind her. On seeing this, she went to the kitchen and called A.F.B. every name in the book.
[50] Her next recollection was that A.F.B. then returned to the living room. A.R. was most upset and wanted to call police, as did D.T., but Mama A. persuaded them that she would need A.F.B.’s assistance for upcoming surgery and pleaded with them not to call police. Mama A. then took A.F.B. to bed. At this point, D.T. recalls that she and A.R. sat at the table and A.R. told her what A.F.B. had done to her in the bathroom.
[51] The next morning when they were all up except her husband and were having coffee, she overhead A.F.B. say to A.R. “sorry for what I did last night”. A.F.B. and Mama A. left early that day with Mama A. promising that she would speak to A.F.B. after they left.
[52] D.T. was adamant that A.R. did nothing to provoke Mr. A.F.B. or to lead him on. She described A.R. as a “good girl”.
[53] Although there were some inconsistencies and difficulties with memories revealed in D.T.’s cross-examination, she was immovable on the main points.
[54] For example, in her examination in chief D.T. testified that she expressed concerns about A.F.B.’s wish to speak privately with A.R. in the bathroom to Mr. A.F.B. himself yet in cross-examination, she agreed she expressed her worry to Mama A. but had been reassured by Mama A. that nothing would happen.
[55] In cross-examination, she maintained that A.R. and A.F.B. were in the bathroom for what seemed to her too long and at least 5 to 10 minutes before she and Mama A. went to investigate.
[56] She agreed that the bedroom where her husband H.B. was asleep was on the same side of the hallway as the bathroom, and that her husband was a light sleeper. She also agreed that Mama A. hit the bedroom door after tripping over the cat but that her husband never woke. However, she added that he had been drinking too.
[57] She was vehement that Mama A. did not push open the door as it was locked. Someone from inside had opened it.
[58] She maintained that she could not recall who came out of the bathroom first, but that A.F.B. was standing right there nearest the door when it was opened.
[59] She maintained that she wanted to talk to A.R. right away but A.R. was upset and suggested they speak later.
[60] D.T. maintained that she was clearly shaken by these events and returned to sit at the dining room table with Mama A. and A.R..
[61] Her recollection was that A.F.B. went to the kitchen and was there for at least 15 minutes while the women were sitting at the dining room table, and that he had been in the kitchen long before Mama A. asked him for a glass of water to take her medications.
[62] D.T. recalled that she herself then asked A.R. to get her a glass of water because she was feeling nervous and anxious. When she was questioned why she did not ask Mama A. to get her water, concerned as she was about A.F.B. being around A.R., she was clearly conflicted and she berated herself for not thinking clearly in sending A.R. into the kitchen, but on the other hand explaining that Mama A. was blind in one eye and that it was hardly appropriate for her to ask Mama A. to get the glass of water.
[63] Despite vigorous cross-examination suggesting to her otherwise, D.T. maintained that from where she sat in H.B.’s chair she was able to see the fridge, the stove and people at that area in the kitchen and that her view was in no way obstructed by an open fridge door or pots. She claimed that the distance between where she sat and the fridge was a short “hop and a skip” away. She recalled that she clearly saw A.F.B. behind A.R. as she bent down to retrieve the water from the fridge. She maintained that she saw him touch A.R. with one hand on the breast and the other in her crotch. She estimated it lasted a few seconds.
[64] Notwithstanding the sexual assault, she admitted that A.R. got her the glass of water.
[65] She also admitted she did not ask A.F.B. to leave straight away because Mama A. pleaded with her that they had no way to get home at that late hour and had no money for a cab. She also did not wake her husband H.B. because he was drunk and she did not want a fight on her hands.
[66] When A.F.B. and Mama A. went to bed, she and A.R. sat at the table and A.R. told her what had happened in the bathroom. She told her that A.F.B. grabbed her by the crotch and breast. As it was very late, and she was concerned about A.R., she took her to her bedroom. She admitted that A.R. then went to sleep on the couch after it became hot and stuffy in the bedroom. However, she told her to scream for help if anything happened.
[67] The next morning, she maintained hearing A.F.B. apologize to A.R.. She resisted the suggestion and she told A.F.B. to apologize to A.R.. It was her belief that Mama A. asked A.F.B. to apologize.
[68] She explained that she did not call police right away because A.R. said she would speak to her Social Worker and Psychiatrist and she hoped they would report this to police.
[69] She freely admitted that A.R. visited with them at Christmas and they discussed the details of what had happened that night again. They discussed the details again while travelling by bus to the police station on January 5, 2011 when they both attended to provide videotaped statements to police.
CONCLUSION
[70] I have concluded that there are too many concerns with A.F.B.’s testimony at trial to persuade me that his version of events can be believed. By suggesting that A.R. always picked her nose, and touched herself in a manner which disgusted him, I find that he sought to support a suggestion that A.R. had come on to him that evening. In cross-examination, he clearly departed from the evidence he had given in chief that she had in fact been acting out of the ordinary that evening.
[71] I also find it incongruent that, given his admitted hyper vigilance towards circumstances that might result in allegations of sexual assault against him, having regard to his previous conviction, he would have said nothing and done nothing when purportedly grabbed by the crotch by A.R.. I find it implausible that if she was the aggressor that he would simply go into the bathroom only to be followed by A.R., when he could have removed himself from the scene and returned to the living room.
[72] Most importantly, A.F.B. admitted that he subsequently pinched A.R.’s bottom in response to her behaviours, when uninvited to do so and without her consent. He agreed that this was a sexual assault and was not playing “by the rules” or on “up and up”.
[73] I find that his consumption of alcohol throughout the day would have affected his judgment and his memory of events rendering his perception of A.R.’s behaviour at best unreliable.
[74] I am also unable to believe his testimony with respect to the perceived ability of an individual sitting in the dining room to see the kitchen near the fridge. His testimony at this juncture was far from certain, and appeared contrived to distance himself from the potential that D.T. would have been in a position to see him grab A.R. by the crotch and breast at the fridge.
[75] In short, I do not find A.F.B.’s evidence credible or reliable.
[76] On the other hand, the evidence I received from A.R. and D.T. does not convince me that A.F.B. necessarily grabbed A.R. by the crotch and breast in the bathroom. D.T. admitted she did not observe any wrongdoing in the hallway or the bathroom. She clearly accepted A.R.’s allegations at face value.
[77] While reminding myself as to the legal standards applied to evidence which reflects inconsistencies as to peripheral matters such as time and location, where the evidence comes from a witness whose mental age might be described as delayed and underdeveloped, I cannot ignore the concerns arising from A.R.’s evidence as part of the videotaped statement to police that, although A.F.B. had followed her into the bathroom, she was nearest the door. In cross-examination, she explained this by suggesting that they switched places and stood face to face before A.F.B. assaulted her. At the preliminary enquiry, however, A.R. stated that A.F.B. touched her with her back to him. At trial, she admitted her memory about this was unclear.
[78] If A.R. was in fact nearest the door, and left the bathroom first as A.F.B. testified and as A.R. testified, this is also consistent with a version of events where she follows A.F.B. into the bathroom. I am left with reasonable doubt as to whether or not Mr. A.F.B. did in fact grab A.R. by the crotch and breast in the bathroom as she claims.
[79] However, there is no doubt in my mind that, at a minimum, what transpired in the bathroom amounted to a sexual assault when Mr. A.F.B. responded inappropriately by pinching A.R.’s bottom when she clearly did not invite him to do so, did not consent to this behaviour and did not place his hand on her bottom. This, coupled with A.F.B.’s admission that he knew this would amount to unwanted sexual contact satisfies me there was a sexual assault in the bathroom, albeit of a more limited nature then A.R. suggested in court.
[80] After A.R. left the bathroom, D.T. observed her reaction and her evidence was uncontradicted that A.R. was upset. Although the suggestion was made in the cross-examination of D.T. that there was reasonable opportunity for her and A.R. to collude with respect to their evidence, or that at a minimum this influenced A.R.’s recall of events in that they discussed the details of that evening twice after November 27, once before Christmas and again en route to the police station January 5, 2011 to give videotaped statements, I observe that there would be no obvious motive for D.T. to collude or support A.R.’s allegations. While she agreed that she felt protective of and close to A.R., it is also clear that A.F.B., being her husband’s nephew, was a frequent and welcome visitor in her home. She did not appear to have any axe to grind in his regard. There was also no evidence to suggest to me that her recollection, vantage point and observations would have been impaired by alcohol, or otherwise.
[81] I find that if D.T. and A.R. were deliberately or unintentionally trying to make their evidence jive, there were numerous instances where their evidence did not equate. As an example, A.R. suggested that Mama A. and D.T. pushed open the door to the bathroom, where D.T. clearly said the bathroom door was locked. Furthermore, A.R.’s testimony that A.F.B. went to get Mama A. a drink of water to take her pills before D.T. yelled at him is not consistent with D.T.’s recollection. A.R. also suggested the apology which A.F.B. made to her the day following was made in the presence of only Mama A. whereas D.T.’s evidence on the point was that she was awake and present when the apology was made.
[82] Although there is little doubt that D.T.’s evidence was offered up in a manner that clearly reflected a state of anxiety, she was resolute with respect to what she saw and heard. Her evidence was not shaken on the main points. Her evidence was clear that she observed A.R. being assaulted from where she sat in the dining room. Whether or not A.R.’s evidence as to how she was assaulted in the kitchen, either near the cupboard or near the fridge, changed from the date of the videotaped statement offered to police, to her subsequent testimony at the preliminary enquiry, her evidence was clear that the assault occurred in the kitchen, while she was getting a glass of water for D.T.. I consider this an inconsistency as to the exact location of the sexual assault in the kitchen, not a matter which leaves me in a reasonable doubt that a sexual assault occurred. I apply the reasoning and approach offered up in R. v. W [R] in this regard.
[83] In short, I do not find A.F.B. at all credible and am not left in a reasonable doubt with respect to a sexual assault having occurred in the bathroom, although the extent of the assault about which I am satisfied is limited to the uninvited touching of A.R.’s bottom by A.F.B..
[84] Moreover, I am not satisfied that there is any untoward collaboration despite opportunity for collusion between D.T. and A.R., given A.R.’s obvious mental delay and D.T.’s apparent lack of sophistication. Indeed, there were notable inconsistencies in their evidence which speaks against any collusion. The evidence from these witnesses that I do except, coupled with A.F.B.’s admissions in cross-examination, satisfies me beyond reasonable doubt that there was a sexual assault in the bathroom of a more limited nature than proposed by A.R., and that there was a subsequent assault in the kitchen witnessed by D.T..
[85] In the result, I find A.F.B. guilty of two counts of sexual assault upon A.R. arising out of the events that took place on November 27, 2010 at the home of H.B. and D.T..
Madam Justice Toscano Roccamo
Released: December 21, 2012