COURT FILE AND PARTIES

COURT FILE NO.: CRIMJ(P) 700/10
DATE: 2013 06 11

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

A. P. Maund, for the Crown

• and -

R.L.

D. Moore, for the Defence

HEARD: April 3-5, 16, 2013

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proceeding directing that the identity of the complainant and any information that could disclose such identity, shall not be published in any document or broadcast or transmitted in any way.

REASONS FOR JUDGMENT

HILL J.

INDEX

INTRODUCTION
FACTUAL OVERVIEW
THE ALLEGATIONS
The Autobody Shop Incident
The Change of Parental Custody
The Penhurst Residence
the first incident
second incident
The First L[…] Residence
L[…]2 Road East
the first incident
the second incident
Whether the Accused is Circumcised
Disclosure
POSITIONS OF THE PARTIES
The Crown
The Defence
ANALYSIS
General Principles
Fact-Finding in this Case
CONCLUSION

INTRODUCTION

[1] R.L. is charged with historical sexual offenses alleged to have been committed against his stepson, M.M. (D.O.B. […], 1989).

[2] The Crown called the complainant, currently 24 years of age, as its sole witness. The only defence witness was the complainant’s mother.

[3] On the whole of the evidence, for the reasons which follow, the prosecution case falls short of proof beyond a reasonable doubt.

FACTUAL OVERVIEW

[4] In the late 1990’s or early 2000’s, the complainant’s mother, B.G., began an intimate relationship with the accused who was a co-worker.

[5] In 2002, B.G.’s son, M.M., was living with his father. The complainant was in grade 8. It is advanced that at the time of his 13th birthday the complainant visited his mother at her residence attached to an autobody shop in Etobicoke. B.G. resided there with the accused who worked at the shop. It is alleged that the accused sexually assaulted the complainant on the occasion of this visit.

[6] In the summer preceding high school, M.M. moved in with his mother and the accused who were then living in a two-bedroom apartment on Penhurst Avenue. In his evidence, the complainant described two instances of sexual assault at this location where the family resided for about one year.

[7] The complainant next lived in an apartment at L[…]1 Road East beginning in 2003. It is alleged that in the summer preceding his grade 10 year, the complainant was again sexually assaulted by the accused. The complainant informed the court that he also had a recall of “general” incidents of sexual abuse.

[8] In February 2006, the family moved to a townhouse complex at L[…]2 Road East in Mississauga. M.M. described two particular incidents of sexual assault in this home and maintained that “general” incidents of sexual abuse continued at this residence.

[9] The complainant informed his mother in 2008 that the accused had sexually abused him. M.M. provided a videotaped statement to the police on August 25, 2008.

[10] The preliminary inquiry was conducted in June and October 2010.

[11] An earlier jury trial in this case resulted in a mistrial with a hung jury verdict on October 13, 2011.

THE ALLEGATIONS

The Autobody Shop Incident

[12] On the complainant’s evidence, after returning from dinner and seeing a movie to celebrate his birthday, he went to sleep on the couch in the residential area attached to the autobody shop. The accused and his mother shared a bed in the same large room.

[13] M.M. Informed the court that during the night he got up to go to the bathroom. On the way, he observed the accused seated at a computer in the office area. He was watching lesbian pornography, smoking and drinking rum. According to the complainant, R.L. asked him to come over and watch the video with him. He declined to do so and went to the washroom.

[14] M.M. testified that when he exited the bathroom, the accused repeated the invitation to watch the porn. He felt “weirded out” as the accused was his mother’s boyfriend. He had seen porn before and was interested in it. He joined the accused who pulled a chair up alongside his own.

[15] To M.M.’s recall, the accused told him not to worry and that he would help him grow to be a man. When R.L. persisted in offering, he took a drink of rum. On the complainant’s testimony, at a point the accused put a hand on his leg close to his crotch. He was scared. He stiffened up and froze. Then, the accused touched his penis for two or three minutes over the complainant’s clothes. He had no idea what to do or how to react.

[16] M.M. testified that the accused next undid the buckle of the complainant’s jeans and pulled his pants and underwear down to his knees or shins. The accused then performed oral sex on M.M. In examination in-chief, the complainant stated that this lasted “for some time”, later described in cross-examination as two to three minutes. At the first trial, M.M. testified that it lasted “[l]ike ten minutes”.

[17] In the first trial, the complainant stated that the accused was in his chair most of the time and then on his knees. In cross-examination in this trial, M.M. at first stated that the accused sat in his chair and was not kneeling but under further questioning stated that the accused may have been on his knees.

[18] According to M.M., although he had no recall of what the accused said, he tried to calm the complainant. The complainant was unsure what he said to the accused – he “may” have said “no, no” that he didn’t want to. M.M. described his situation at this trial – he was weak and had “no voice”.

[19] In his evidence, M.M. agreed that he made an effort to be truthful in his videotaped statement to the police. In cross-examination, M.M. stated that he told Constable Emery about the sexual contact at the couch. However, in that statement, the complainant only stated that after the oral sex at the location of the computer, he went to bed and to sleep. At the preliminary inquiry, M.M. related that he and the accused moved to a couch in the office where the sexual assault continued. At the first trial, the complainant initially said nothing about sexual contact at the office coach. He later adopted his preliminary inquiry evidence. M.M. thought it might have been “a mistake” when he did not tell the police. The complainant’s evidence at the first trial was confused in explaining his initial failure to include the couch evidence – he either forgot or deliberately chose not to include the evidence on account of the number of persons in the courtroom.

[20] In this trial, M.M. testified that the accused suggested they move to the couch. They did. The accused sat on the couch and M.M. stood in front of him. Oral sex continued as he accused rubbed M.M.’s chest with one hand. After less than ten minutes, M.M. ejaculated in the accused’s mouth. On the complainant’s evidence, the accused then backed off and M.M. pulled up his pants. The accused told him not to tell anyone.

[21] M.M. testified that he felt bad, scared and in shock. He returned to his bed, cried and went to sleep.

[22] M.M. informed the court that the next day his mother drove him to meet his father for a return to his custody. He told no one what had occurred. Asked at trial why not, M.M. stated that he was shocked and confused. He had no idea what to do. He never expected that to happen. He felt he had done nothing wrong. Maybe if he had been stronger, nothing would have happened. To the complainant’s recall, that was his last visit to the autobody shop.

[...continued exactly as in the original decision...]

[126] The accused is acquitted of all counts in the indictment.

Hill J.

DATE: June 11, 2013

COURT FILE NO.: CRIMJ(P) 700/10
DATE: 2013 06 11
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. R.L.

COUNSEL: P. Maund, for the Crown
D. Moore, for the Defence

HEARD: April 3-5, 16, 2013

REASONS FOR JUDGMENT

Hill J.

DATE: June 11, 2013