ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 103/12

DATE: 20131113

BETWEEN:

HER MAJESTY THE QUEEN

– and –

R.M.

Defendant

K. Rogozinski, for the Crown

J. Rabinovitch, for the Defendant

HEARD: November 4, 5, 6 and 7 2013

L. A. Pattillo J.: ORALLY

Introduction

[1] The accused, R.M., is charged with indecently assaulting S.B. sometime between January 1, 1973 and December 31, 1976, contrary to Section 156 of the Criminal Code. Based on the time period in the indictment, S.B. was between 3 and 7 years old when the indecent assault is alleged to have occurred.

[2] R.M.’s wife and S.B.’s mother were friends. In the early 1970’s and later, S.B. spent a significant amount of time at R.M.’s home while S.B.’s mother worked.

[3] S.B. testified that when he was between the ages of 5 and 7, while he was at R.M.’s house, he was forced to perform fellatio on R.M. on three separate occasions that he could remember in the bathroom. S.B.’s recollection of the first two incidents was virtually similar. They occurred when no one was in the house. The third and final incident was similar to the first two as well except he described it as being hurried due to a commotion occurring outside the bathroom.

[4] S.B. told no one about the incidents until he told his future wife in 1998 or 1999, shortly after they began dating, that he had been sexually abused by someone close to him. In 2004, shortly after the birth of his daughter, he told his mother that R.M. had inappropriately touched him when he was a child. In 2010, he went to the police.

[5] R.M. testified. He described S.B. and his mother as friends for years. He knew S.B. through his mother who was friends with his wife and his wife also looked after S.B. in their home for a few years while S.B.’s mother was working. R.M. denied that any of the incidents as described by S.B. ever occurred.

[6] R.M. is charged with indecent assault contrary to section 156 of the Code. Section 156 was in force at the time of the alleged offence but was repealed in the early 1980’s. It provides:

s. 156 Every male person who assaults another person with intent to commit buggery or who indecently assaults another male person is guilty of an indictable offence and is liable to imprisonment for ten years.

[7] The defence concedes that if I reject R.M.’s denial of the offence and accept S.B.’s evidence of what occurred in the bathroom of R.M.’s home, then the Crown will have made out the essential elements of the offence of indecent assault.

[8] The central issue for determination in this case is credibility.

Facts

[9] S.B. was born on […], 1969 and is currently 44. His mother and father separated before he turned two and he was raised by his mother. Although S.B. has an older brother, about a year and a half after his parents separated, S.B.’s father moved to western Canada with his older brother and was not involved in his upbringing.

[10] R.M. is 78 years of age. He and his wife J.M. have been married for 56 years and have four children, three girls and a boy, ranging in ages from 54 to 47. In the 1960’s and 70’s J. & R.M. owned a house in the Rexdale area of Toronto. From 1961 until he retired in 1996, R.M. worked for the Canadian National Railway doing many different jobs.

[11] In the late 1960’s, S.B.’s mother, J.B., worked as a teller at a local branch of the C.I.B.C. in Rexdale. There she met and became friends with R.M.’s wife, who worked at the same branch. When J.M. decided to stay home and look after their two youngest daughters, J.B., who had just separated from her husband and was living with S.B. in an apartment close to J. & R.M.’s house, asked her if she would take care of S.B. while she worked. J.M. agreed.

[12] Beginning around the end of 1970 or the start of 1971, when S.B. was under the age of two, J.M. began looking after him at her house during the week while J.B. worked. J.B. would drop him off on her way to work around 8:30 or 8:45 am and pick him up directly after work ended at 5 or 5:30 pm. J. & R.M.’s oldest two children were in full time school and the two youngest girls were at home..

[13] J.M. looked after S.B. for about two or three years. J.B. testified that it ended when S.B. started school at 5 ½. J.M. said it ended when S.B. was just over 3 years of age, when J.B. moved to an apartment further away. When it ended, J.B. arranged for another person to look after S.B. when he wasn’t in school and she was not around. J.B. said that she and S.B. would visit J.M. at her home from time to time and at times she left S.B. there so she could go shopping.

[14] In early 1976, while S.B. was in the middle of grade 2, he and his mother moved to a townhouse in Brampton. J.B. continued to visit J.M. at her house in Rexdale but S.B. attended only occasionally and always in the company of his mother.

S. B.

[15] S.B. can’t say when he first recalled going to the accused’s home. He said that he spent as much time there as anywhere else except direct family. He testified of his recollections of the accused, his family at the time and a general description of their house as well as his recollection of their dog Cleo and playing with Cleo in the basement of their house and Cleo grabbing his socks.

[16] As noted, S.B. described three separate incidents involving him and the accused which took place in the bathroom at J. & R.M.’s home.

[17] S.B. can’t recall any conversation or lead up to the first incident. He only recalls the accused in the bathroom and closing the door behind him. R.M. took off his pants off and exposed himself. He began rubbing his penis to make it erect although S.B. didn’t understand why he was doing that at the time. The accused pushed him onto his knees, grabbed him and forced his lips over his penis while he was standing. While this was happening, the accused was telling him it was “ok” and coaching him through the process. S.B. had no understanding of what was happening. The accused took his head and moved it back and forth. All of the movements were based on the accused’s gestures. S.B. didn’t know what to do and did nothing voluntarily. There was no struggle and no threats. The accused ejaculated into his mouth. S.B. couldn’t recall if he spit it out or swallowed it. The accused continued to make him perform oral sex for a short time afterwards. He can’t remember how it ended. He only remembers being away from the bathroom. He said he was confused and bewildered. His recollection was no one else was in the home at the time.

[18] S.B. can’t say how long after the first incident the second incident occurred but it was not on his next visit to the accused’s home. Again he could not recall anyone else in the house. It happened in the bathroom again. He said what occurred was similar to the first incident. He was forced to perform fellatio and the accused ejaculated in his mouth. What felt different was that he had some memory of what could transpire. He said he was a little surer of himself. He protested – tried to speak – but was not successful.

[19] S.B.’s memory of the third incident again begins in the bathroom of the house. The same thing happened. He said he was more aggressive and more verbal. The house was noisier. He recalled a commotion which created a distraction which caused the accused to pull away from him. This time the act was more hurried. He recalls the accused looking out the bathroom door to check if anyone was around. The accused then pushed him into a bedroom. He was alone in the bedroom. After a short time he left and walked to the head of the stairs. He was crying. He saw someone, he can’t recall who it was, and he had an interaction with them but he can’t say what occurred. He also said that he recalled being in the basement, crying, in front of “many” people but he couldn’t recall if it was the same day or a few days later.

R.M.

[20] R.M. denied that he was ever alone in a bathroom with S.B., that he ever took his pants off in front of him or that he ever forced oral sex on him. He referred to such an act as sickening. He acknowledged knowing S.B. and his mother J.B. and said he and his wife had been friends with J.B. and S.B. for years. He saw S.B. through his mother. He described S.B. as a troubled little boy which he attributed to the nasty divorce his parents went through.

[21] After his wife decided to stay home and look after their youngest two daughters in the early 1970’s, R.M. had to take on a second job to pay for their house. He worked the night shift at CN and worked days (9-5), first at a truck plant and later for a company that manufactured and installed blower systems for moving materials. He gave up the second job in 1975, after his wife returned to work. He worked as much overtime as he could with CN. During the time he worked two jobs, he spent very little time at home, except on weekends. His wife took care of the children at home. He had no involvement in looking after S.B. or any interaction with him when he was in the house. Although he said that he wasn’t around when S.B. was at the house, he did acknowledge that he was there on occasion when S.B. was dropped off.

[22] As noted, the issue in this case is one of credibility. In assessing a witnesses’ evidence, it is important to consider not only the witness’s credibility but also their reliability. While credibility is always important, in a case such as this one which involves events which are alleged to have taken place more than 40 years ago, reliability, that is the ability to accurately observe, recall and recount events, takes on an important significance. The difference between credibility and reliability was set out by Watt J.A. in R. v. H.C., 2009 ONCA 56 (C.A.) at para. 41:

41. 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

ii. 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: R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, at 526 (C.A.).

[23] The evidence of all the witnesses in this case was affected in my view by the very significant period of time which has passed since the events are alleged to have occurred. The difficulty of accurate recollection was apparent for all of the witnesses.

R. M.

[24] I turn first to consider the evidence of R.M. Overall, I found him to be a credible witness who gave his answers in a direct and straightforward manner. It was evident that while he had a good recollection of the events of his working career during the 1970’s, his recollection of his involvement in the home and his involvement with C.B. during that time period was vague and in part, in my view, derived mainly from discussions he has had with his wife. Given the time period and the involvement of S.B. in their family, I do not consider such discussions to be inappropriate. It is only natural when confronted with S.B.’s allegations some 35 years or more after the alleged events, that R.M. would discuss what occurred with S.B. during that time period with his wife who was S.B.’s caregiver. For that reason, I am not prepared to attach much weight to R.M.’s recollection of events involving S.B. except for his observations of S.B. as a youngster and his mother’s parenting skills.

[25] The Crown attacked R.M.’s negative assessment of S.B. and J.B.’s parenting skills. In my view, however, his observations were not inaccurate. They were also supported by other evidence. Both J.B. and J.M. spoke of S.B. having behaviour issues as a young boy. S.B. referred to his pig headed or determined nature, his problems with discipline in his youth and he spoke very negatively about his mother’s parenting skills.

[26] In order to determine whether I accept the evidence of R.M. that he did not commit the offence with which he is charged, I cannot look at his evidence in a vacuum. It is necessary to consider his evidence having regard to all of the other evidence.

J. M.

[27] J.M. testified for the defence. I found her evidence credible. She was clearly nervous while testifying but that is entirely understandable in the circumstances. I found her evidence to be reliable as well. I thought she answered the questions directly and had clearly given the events much thought. The Crown submitted that her evidence should be discounted because she was biased and her evidence tainted because she admitted that she had read the preliminary inquiry transcript. To the extent that J.M. is R.M.’s wife, there will always be the potential for bias. While her relationship with her husband is a factor to consider in assessing her evidence, she is not disqualified from testifying. And in this case the evidence is clear that she and J.B. were friends and she was the care giver for S.B. when he was at their home, whether during the babysitting years or subsequently. Her evidence was important for the defence. In answering the questions, I did not consider that she tailored her evidence to overly favour her husband or that any delay in answering was in order to craft an answer favourable to her husband. I am also was of the view that her evidence was not tainted from her review of the transcript. She freely admitted reading it. Given the nature of the allegations and her evidence generally, I do not consider that to be a problem. While it is clear from her evidence that her review of the transcript did trigger memories of her time with S.B. and particularly his visit with his mother to her house when he was 18, I do not consider that her evidence was in any way tainted, either in that respect or generally.

[28] J.M. said that she began looking after S.B. when he was 18 months and that it lasted until he was just over 3 and not in school. She said that she became worried that S.B. had started to favour her over his mother and she felt it was time to end the arrangement. J.B., S.B.’s mother had no issues with that and was able to find another sitter closer to where she lived. J.B. had moved to an apartment north of Albion Road and although it was only 10 minutes away from their house by car, J.B. didn’t have a car. J.M. did not return to work until some time after S.B. left her care.

[29] After she stopped looking after S.B. J.M. said that J.B. and S.B. left her life and “drifted away” as she put it. She only saw S.B. three times after that. The first was approximately 2 ½ years later, when S.B. was 5. J.B. came by her house with S.B. and asked her if she would look after him while she went shopping. She agreed and took him into the back yard to play in the wading pool. As she took off his shoes, Cleo their dog who was just a puppy, ran out of the house and grabbed S.B.’s socks. S.B. was upset by the incident and J.M. put Cleo back in the house. J.B. returned in less than an hour and picked up S.B. and the two left right away.

[30] The next time J.M. saw S.B. was at his home in Brampton when she was visiting J.B. S.B. was 12 at the time and they just exchanged greetings only in passing.

[31] The last time that J.M. saw S.B. was when he was 18 and his mother brought him to their home in Brampton. J.B. had called and said that S.B. was interested in commercial art and asked if he could come and talk with their daughter who was an artist. R.M was in the house when they arrived but left to help a friend. They had coffee but didn’t talk much about art. J.M.’s old house in Rexdale was for sale and they talked about it. S.B. said he didn’t remember it and so she described it to him and showed him pictures. She also told him the story of Cleo taking his socks. She said that he used the same words she used to tell the story in his evidence at the preliminary.

J. B.

[32] J.B., S.B.’s mother testified for the Crown. I found her to be credible. She was sincere and gave her evidence in a straight forward manner. She answered the questions directly and didn’t try to embellish her evidence. Although she was unsure of dates and frequency of events at times, that is understandable given the time period which has passed. It was clear that her relationship with her son has been difficult for her from the time he was a little boy. She described him as a handful as a young boy. S.B. never gave her any indication that he did not want to go to R.M.’s house or told her about any issues with R.M. The first she heard of any problem was in 2004, after the birth of her granddaughter when S.B. told her he had been inappropriately touched by R.M. as a child. She was shocked but asked no further questions. Her relationship with J.M. essentially ended at that point. Further, her son has basically shut her out of his life.

L. B.

[33] L.B., who also testified for the Crown, is S.B.’s former wife. They were married in 2002 and divorced in 2011. They have two children together, a daughter age 9 and a son age 4. In 1998, while she was dating S.B., he told her that he’d been molested by a family friend. He provided no details and didn’t mention anyone by name. Sometime later she learned of R.M.’s name but has never met him. She was also present when S.B. told his mother in 2004, shortly after their daughter was born. L.B. gave her evidence in a straight forward and precise manner. In my view she was credible. I considered her evidence, however, to be more for the narrative. It did not really add much to the issue.

S. B.

[34] I have difficulty with both the credibility and the reliability of S.B.’s evidence. I found him to be very argumentative in many of his answers during cross-examination and at times evasive in his answers. I also found him to be overly invested in his cause to the point, in my view, that it impacted directly on his credibility. He was imbued with a very strong sense of being wronged. While that is not necessarily a bad thing in a witness, in this case, it extended beyond the witness box. In addition to having started a civil action against R.M. claiming $2 million dollars in damages, on October 18, 2013, on essentially the eve of the criminal trial starting, S.B. printed and distributed leaflets to R.M.’s neighbours announcing that R.M. had been charged with indecent assault, the pending trial date and that it was alleged R.M. “on multiple occasions forced a minor child to perform sexual acts on him in his home.” The leaflet went on to say that R.M. is presumed innocent and has pled not guilty to the charges. On Halloween, he put a copy of the leaflet in R.M.’s mailbox. S.B attempted to explain his actions by saying it was part of his closure.

[35] I was struck by one particular exchange during cross-examination. When it was suggested by counsel that he never told or expressed to his mother any problem about going to R.M.’s house, S.B. said he didn’t recall having such a discussion. When it was put to him that he didn’t recall it because the events never happened, he said that would be a mischaracterization. He said the suggestion he never gave his mother any indication he had an issue with going to the R.M.’s house was incorrect. He described his mother as being both physically and emotionally abusive and said his gut feeling was he didn’t talk to her and he was “damn right correct” about that at the time. He said it would be incorrect to suggest he never had a discussion with his mother about not wanting to go to R.M’s house. His mother’s evidence, which I accept, was that he never had that discussion with her.

[36] S.B. has a recent conviction for public mischief for which he received a conditional discharge. In my view, that has no impact on my assessment of his credibility.

[37] I also have trouble with the reliability of much of S.B.’s evidence both directly and when compared to the evidence of the other witnesses which I accept. I recognise that he was mainly between the ages of 2 and 5 when he was in R.M.’s house and that memories at those ages are very few and far between. Further, while memories of traumatic events are more indelibly etched on our brains at a young age, even they fade or become distorted over time. Although he said he had many memories of the house, he spoke of only two outside the three incidents. He provided a description of R.M.’s house and spoke about the family dog Cleo taking off his socks. Given J.M.’s evidence, which I accept, of what occurred during his visit to her house when he was 18, I have a concern that S.B.’s recollections were not from when he was a little boy under the age of 7 but rather from information obtained at a later time when he was much older.

[38] S.B. also recalled that J. & R.M. had three children (not 4) and that they were teenagers when he was there. In fact, while the oldest two were in school, the youngest two were not yet school age and he played with the youngest who was just a few years older than he was. I also have a concern with S.B.’s description of R.M. at the time of the alleged events. His description both of his height and hair struck me as having been acquired long after the incidents he spoke of. It is more consistent, in my view, with an adult`s description and not that of a child.

[39] More significantly, S.B. told the police when he first went to them in 2010 and testified at both the preliminary hearing and the trial that his recollection was that R.M. was circumcised. R.M. testified that he was not circumcised and the Crown did not question his evidence in that regard. I accept R.M.’s evidence on that point.

[40] Based on the evidence of J.M. and J.B., I am also concerned about the question of opportunity. Although I recognise that it is possible that R.M. could have been alone in his house alone with S.B. at some point, such that the alleged incidents could have taken place, I cannot say, from the evidence, that I’m sure that occurred. There is no question that S.B. was at R.M.’s house, between 8:45 am and 5:30 pm, Monday to Friday, during the period he was looked after by J.M. That began before he was two and ended, either when he was just over 3 or when he was 5 ½ and starting school. Either way, while J.M. was looking after him, R.M. was working two jobs. During that time, J.M. was at home and at least 2 of the 4 children were also present. It is very unlikely in my view that R.M. could have assaulted S.B. as he alleged.

[41] After the babysitting ended, S.B. attended R.M.’s house very infrequently. S.B. said he went with his mother and she would drop him off. J.B. was very unsure in her evidence about the frequency of visits to R.M.’s home. When she moved to north of Albion and J.M. stopped looking after S.B., she had a baby sitter for S.B. She said S.B. might have stayed at R.M.’s if “us girls” went out for an evening but she wasn’t sure. She also said that J&R.M. looked after S.B. when she went on holiday but she wasnt sure and also said her sister looked after S.B. when she went away. Both J.M. and R.M. said that didn’t occur. After J.B. and S.B. moved to Brampton in 1976, she would pop in to J.Ms home from time to time to see J.M. but S.B. was not with her. J.M. said S.B only was at their house in Rexdale once after the baby sitting ended. He was 5 and he was only there for about an hour while his mother went shopping. She denied ever looking after S.B. when she and J.B. had a ladies night out.

Conclusion

[42] Based on my assessment of all the evidence and given my reservation about R.M.’s evidence concerning his recollections of S.B., I have reluctantly concluded that I cannot accept his denial that he did not commit the offence with which he is charged. I say reluctantly because the other evidence which I accept raises significant doubt in my mind as to whether the offence occurred and, if so, whether R.M. was involved. Notwithstanding my significant concerns about S.B.’s evidence, however, I am not prepared to reject it entirely.

[43] While it is possible that what S.B. said occurred in the bathroom at R.M.’s house did happen, given my significant concerns regarding his evidence, coupled with my assessment of the remaining evidence, in my view the Crown has clearly failed to establish beyond a reasonable doubt that R.M. committed the offence alleged.

[44] Accordingly, the charge is dismissed.

L. A. Pattillo J.

Released: November 13, 2013

COURT FILE NO.: 103/12

DATE: 20131113

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

R. M.

Defendant

REASONS FOR JUDGMENT

PATTILLO J.

Released: November 13, 2013