ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Tara Schuck, for the Crown
- and -
C.B.,
Simon Owen, for the Defendant
Accused
HEARD: January 8 and 9, 2013 at Kenora, Ontario
Mr. Justice J.S. Fregeau
Reasons For Judgment
PUBLICATION BAN PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA.
Introduction
1C.B. (the “accused”) has pleaded not guilty to Counts 1 and 3 on an indictment dated February 24, 2012. These counts read as follows:
Count #1: Between the 1st day of October, 2008 and the 31st day of December, 2009 at the unorganized area in the District of Kenora in the said Region, did commit a sexual assault on S.G. contrary to Section 271 of the Criminal Code.
Count #3: Between the 1st day of August, 2011 and the 31st day of August, 2011 at the Municipality of Sioux Lookout in the said Region, did commit a sexual assault on S.G. contrary to Section 271 of the Criminal Code.
2Prior to submissions, the Crown conceded there was insufficient evidence to establish the guilt of the accused on Count #3. The Crown, quite appropriately, invited the court to find the accused not guilty on this count. C.B. is found not guilty on Count #3 of the indictment.
3At the start of the trial, Crown and defence filed an Agreed Statement of Facts (Exhibit #1) which set out the evidence of J.B. (“J.B. ”), […], 1997, the daughter of the accused. The evidence of J.B. , as set out in the Agreed Statement of Facts, is as follows:
- J.B., DOB […], 1997, is the daughter of the accused.
- In and around 2008, J.B. and the complainant were close friends.
- J.B. frequently accompanied the accused to his camp near Sioux Lookout. She would often bring her friends with her on weekend outings.
- J.B., the complainant, and the accused, went to the accused’s camp on a weekend in the winter of 2008-2009. J.B. believes that the complainant had accompanied her to the camp two or three times during this period. J.B. would have been 10 or 11 years old when she went to the accused’s camp with the complainant in the winter of 2008-09 (“the Winter Visit”).
- During the Winter Visit, J.B. does not recall drinking any alcoholic beverages. She recalls that the party only stayed at the camp one night, and that she and the complainant shared the same bed, in the upstairs area of the cabin that contained three beds.
- J.B. recalls that the accused was still awake when she and the complainant went to bed.
- J.B. does not recall the complainant drinking any alcoholic beverages during the Winter Visit. She recalls the accused drinking approximately two beers.
- J.B. recalls waking up during the night, about half an hour after she and the complainant had gone to bed, and going downstairs for a drink of water. At this point she recalls that the complainant was still sleeping and the accused was downstairs watching TV.
- J.B. recalls that when she woke up in the morning, the complainant was still asleep in the same bed with her. She recalls that the accused was already awake.
- J.B. recalls that the group went snowmobiling that day, and then returned to Sioux Lookout. She does not recall the particulars of any conversation she may have had with the complainant at this time.
- J.B. acknowledges that her memory of the Winter Visit is hazy considering that it took place over two years before she was asked about it by the police. She recalls nothing unusual transpiring during the Winter Visit.
4The Crown’s case consisted of the evidence of the complainant, S.G., and the evidence of D.B., the 20 year old son of the accused. The defence chose to call evidence. The accused testified. The defence also called S.M., the brother-in-law of the accused.
The Crown’s Case
The Complainant
5S.G., born […], 1995, is a lifelong resident of Sioux lookout, Ontario. She has been good friends with J.B. since approximately 2008 and knows the accused as “her best friend’s dad”. S.G. testified that sometime in or around October 2008, she visited the accused’s camp, located on B[…] Road in the unorganized area outside of Sioux Lookout, with J.B. , the accused, D.B., son of the accused, and “S.M.”. S.G. did not know "S.M.'s" last name. S.G. had been to the camp with J.B. on previous occasions.
6S.G. described the camp as having two floors. Her evidence, together with the later evidence of the accused established that this was a single story structure with a loft that served as a large common bedroom without partition walls. The main floor consists of a kitchen, dining area and living room. These rooms are apparently delineated with furniture as opposed to partition walls. The main floor was roughly estimated by S.G. to be approximately 24 feet by 24 feet.
7Access to the loft was by way of a staircase from the main floor. The loft was estimated by S.G. to be approximately 16 feet by 24 feet. S.G. testified that there were three beds in the loft and that she and J.B. slept on the same bed.
8Exhibit #5 is a series of 15 photographs, 14 of which are of the inside of this camp. These photographs were identified by S.G. and later put into evidence through the accused. The photos illustrate the layout of the main floor, the staircase to the loft and the layout of the common bedroom in the loft.
9S.G. testified that when they arrived at the camp, she and J.B. ran inside and upstairs and were “hanging out” while the accused unpacked. The accused advised the girls that D.B. and “S.M.” had gone to the “other camp”. There is apparently a second camp on the B[…] proprety, a five minute walk away from the camp of the accused.
10S.G. testified that the accused came inside the camp after unpacking and organizing gear. It was now dark. S.G. testified that the accused asked her if she wanted a drink. She agreed and was given some “whiskey” and a “Carlington” beer. S.G. testified that she and the accused were at the dining room table when they started to drink. She testified that J.B. was not drinking and was wandering around the cabin, upstairs and downstairs. S.G. was unable to estimate the amount of alcohol she allegedly consumed. She stated it “was one of the first times I drank” and “for me it was a lot”.
11S.G. testified that she became very intoxicated; “I was messed up”, “I couldn’t speak”, “everything was so dizzy”, “at first I could walk, but barely”. S. G. testified that at one point she “went up” to talk to J.B. and “snuck her a beer”. The accused allegedly called S.G. back down again and gave her more to drink. S.G. was unable to say how long the drinking continued, other than to say for “hours”.
12S.G. testified that at one point she was dancing with J.B. in the loft and fell and hit her head. At this point she realized she had to go to bed. S.G. testified that she crawled into bed and that J.B. was not yet in bed at this point in time. S.G. testified that she fell asleep immediately.
13S.G.’s next recollection is of waking up while being dragged “under the armpits” by the accused. S.G. testified that “she couldn’t get up” and that she felt herself “on his bed” at the other end of the upstairs room. S.G. testified that she was put/dragged onto this bed with her head toward the middle and her feet hanging off the bed.
14S.G. testified that the accused put his penis in her mouth and that she was unable to resist because she was too intoxicated. S.G. testified that nothing was said. She was unable to say if the accused ejaculated. S.G. testified that she then “kinda blacked out” and next recalls the accused carrying her down the staircase and sitting her on a chair across from him at the dining room table.
15S.G. testified that she and the accused started drinking more “Wisers”. S.G. testified that she drank more because she was disgusted with herself and “didn’t want to remember”. She did not testify that alcohol was forced on her in any way. S.G. testified that the accused began to get louder and to touch her leg. The accused told S.G. to get on her knees and he helped her do so. S.G. testified that the accused unzipped his pants and put her hand on his penis and “started rubbing”. S.G. was told to put the accused’s penis in her mouth and “look him in the eye”. S.G. testified that she did not want to do this but “I did it”.
16S.G. testified that the accused then picked her up, placed her on the couch in the living room area, pulled her pants and underwear down and had “vaginal intercourse” with her. After several minutes, S.G. testified that the accused then performed oral sex on her. After this, S.G. testified that she tried to get up but slipped. S.G. testified that the accused “took me upstairs and sat me on the bed I was taken off”. J.B. was said to be sleeping in this bed.
17S.G. testified that she and J.B. awoke the next morning at the same time, approximately mid-morning. S.G. told the court that she did not tell J.B. what had happened the night before “because it was her dad”. S.G. testified that she did ask J.B. not to leave her alone with the accused. When J.B. asked why not, S.G. did not tell her. S.G. testified that she returned home that day.
18S.G. next testified to an incident allegedly occurring in August 2011. S.G. was still friends with J.B. and said that she went to her house every once in a while. On this evening in August 2011, S.G. testified that she went to J.B. ’s house because she had an argument with her mother and had nowhere to stay. S.G. had two friends with her – Y. and T. – and they arrived at J.B. ’s house late and after dark.
19“R.”, apparently a friend staying at this house, answered the door. S.G. testified that she was hoping to “score weed or booze and take off”. S.G. testified that she asked R. if he had either. Apparently, R. had some marijuana but did not want to give S.G. any. He did, however, offer to smoke a joint with her, which they did on the porch while J.B. ’s friends waited outside. After they smoked the joint, S.G. testified that she had a beer with R. inside the house in the living room while her friends continued to wait outside.
20S.G. testified that the accused was passed out sitting up in the living room. She and R. had a beer. S.G. testified that after about ten to fifteen minutes, she went outside to speak with her friends. She asked them both if she could stay over at either of their homes. Both said no. S.G. testified that she then decided to stay at the accused’s home and to sleep on the couch. S.G. chatted with R. for about 20 minutes, after which R. “crashed” in the living room. The accused was still sleeping. S.G. watched television for a short period of time and fell asleep.
21S.G. testified that she woke up the next morning at about 10:00 am on the couch R. had crashed on the night before. At this time, R. was not present, but the accused was, awake on the couch he had been passed out on the night before. S.G. testified that both J.B. and D.B. joined them in the living room that morning.
22The cross examination of S.G. began with the August 2011 incident. S.G. confirmed that she had been to J.B. ’s house numerous times in the past, that she had spent the night there before and that she used this home as a place to go when she had nowhere else to go. S.G acknowledged that she did ask the accused for alcohol, on occasion, up to 2011 and that she did choose to have contact with him until spring 2012, when the present allegations came to light.
23S.G. acknowledged that, several times in early 2012, the accused had contacted police because she had been intoxicated at his home. When asked if she had, at the time of one such arrest of her, stated to the accused, “how would it feel to spend a couple of years in custody”, S.G. replied that she did not recall saying this but did testify that it “sounds like something I’d say”.
24In reference to the allegations about the incident at the accused’s camp, S.G. confirmed that she had had a lot to drink, that she did black out at some point and hit her head, but that she remembered what happened. S.G. testified that she woke up when she felt herself being dragged and recalled J.B. on the bed beside her.
25When cross examined as to the details of the alleged assault, S.G. testified that she could not recall having dinner or eating upon arriving at the camp. She estimated that she consumed 10 or more beer. S.G. testified that she went to bed fully clothed but could not recall what she was wearing. She testified that the accused removed her pants and “helped her “put them back on.
26When cross examined as to how exactly she got downstairs from the loft, S.G. testified that the accused carried her horizontally, while gesturing with two bent arms extended in front of her. S.G. testified that, to get back upstairs, she was “kinda walking but he was like carrying me”.
27S.G. testified on cross examination that the accused had picked her up at her house and that she, the accused, J.B., D.B. and “S.M.” travelled to the camp together in the accused’s vehicle.
28On re-examination, S.G. testified that she first disclosed this incident to a worker at the Portage Youth Centre when she was in custody. S.G. testified that she “begged” this worker not to report the incident “because J.B. was my friend” and that she “didn’t want anyone to know it happened”, “I was disgusted”.
D.B.
29The Crown called D.B., the 20 year old son of the accused, as a witness. D.B. was obviously hostile to the Crown and provided no useful evidence in regard to the alleged incident at the B[…] camp or in regard to S.G.’s attendance at the home of the accused in 2011.
The Defence Case
C.B.
30C.B. testified in his own defence. The accused is 49 years old and has lived in the Sioux Lookout area all his life. The accused identified the 15 photographs of his camp located on the B[…] Road in Umfreville. The accused testified that he attended his camp approximately once per month on weekends and generally went there with his girlfriend, his daughter J.B. and one or more of his daughter’s friends.
31The accused testified that he had known S.G. as a friend of his daughter’s since they were both about nine or ten years of age. The accused testified that J.B. began to bring S.G. to the camp with her about six years ago and that she had been to the camp between 10 and 20 times over the years, the last time being in 2010 or 2011.
32The accused testified that he would either sleep on a couch downstairs at camp or on the “first bed as you go upstairs”. He said that J.B. and her friends would sleep upstairs or “outside in a tent a couple of times”. When asked by counsel if he recalled a visit to the camp with J.B. and S.G. in the fall/winter of 2008, the accused testified that he did not recall an occasion when just he, S.G. and J.B. were at camp.
33The accused testified that he had not shared a bed with his daughter since she was five years old and that he had never shared a bed with S.G. and J.B. . He did not recall the particular visit that he heard S.G. testify about, denied any sexual contact with S.G. and denied ever providing alcohol to his daughter or her friends.
34The accused testified that his daughter’s friendship with S.G. ended when the present allegations were made. Prior to that point in time, S.G. had attended his Sioux Lookout home many times. The accused testified that J.B. was often intoxicated when she arrived at his home. When this occurred, the accused testified that he usually phoned her mother. S.G., according to the accused, did stay at his home with J.B. , but denied that she ever stayed over when J.B. was not there. He quickly corrected this evidence, stating that once when S.G. was drunk and the police were called, he allowed her to stay over in J.B. ’s absence.
35The accused denied ever carrying or dragging S.G. at the camp at any time. The accused testified that he suffers from diminished strength in his arms, chest and back. The problems first arose in 1999 or 2000. The accused testified that his physical ability has diminished over the past few years.
36The cross examination of the accused elicited no probative information and did not impact on the credibility of the accused.
S.M.
37S.M. (“S.M.”) next testified for the defence. S.M. is the brother-in-law of the accused. He resided with P.B., father of the accused, at the B[…] camp property on the B[…] Road, from October 25, 2008 until April 19, 2009. He was required to do so pursuant to judicial interim release conditions. S.M. and P.B. resided in a separate dwelling than the one referred to by S.G.
38S.M. testified that he knows J.B. ’s friends, including S.G. He estimated that S.G. visited the accused’s camp twice during the time he resided on the property. S.M. testified that he had seen S.G. on the property before and after that time period, including one time in April or May 2010.
39S.M. testified that the girls would usually sleep upstairs and the adults usually slept downstairs, taking turns stoking the wood stove. S.M. testified that he never saw any of the girls consuming alcohol.
40S.M. testified that between October 25, 2008 and December 8, 2008, (the date of a required court appearance) he never left the B[…] proprety. During this period, he recalls S.G. visiting once. However, he was insistent that he never travelled to the camp in a vehicle with S.G. and the accused. He also testified that he was “pretty sure” that J.B. , the accused and S.G. did not spend the night the time they visited in the fall of 2008.
41The cross examination of S.M. produced no probative evidence. He was confrontational in his exchanges with the Crown, suggesting to me that he was somewhat disposed toward the accused. I also found his recall of miscellaneous facts from several years ago to have been too exact, again suggesting to me that his evidence had either been tailored or fabricated in an effort to assist the accused. I place no weight on the evidence of this witness.
Discussion
42I place no weight on the evidence of either D.B., a Crown witness, or S.M., a defence witness. It is obvious from the above summary of the evidence that the central issue in this case is credibility. If S.G. is believed, the Crown has proved a very serious sexual assault. If the evidence of the accused, considered in conjunction with all of the evidence, including that of J.B. , raises a reasonable doubt, then the accused must be acquitted.
43In applying the burden of proof to any exculpatory account of an incident advanced by the defence, the principles set out in R. v. W. (D.), 63 C.C.C. (3d) 397 (S.C.C.) must be applied. The principles in this judgement concern the application of the Crown’s burden of proving guilt beyond reasonable doubt to the issue of credibility. Cory J. stated (at p. 409 C.C.C.):
“In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue.”
44This is obviously a case where credibility is important. The required instruction, as set out by Cory J. is thus (at p. 409 C.C.C.):
“The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct that they must acquit the accused in two situations. First, if they believe the accused. Secondly, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole.
Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.
Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.”
45The Crown’s burden of proving guilt beyond a reasonable doubt has no application to individual items of evidence or to discrete facts in the case. The function of a standard of proof is not the weighing of individual items of evidence but the determination of ultimate issues. During the process of deliberation, the trier of fact must consider the evidence as a whole and determine whether guilt has been established by the prosecution beyond a reasonable doubt.
46After considering the evidence of the accused in the context of the evidence as a whole, I am not convinced beyond a reasonable doubt as to the guilt of the accused on Count#1 of the indictment. My reasons for this decision follow.
47S.G. testified that not long after they arrived at the camp, and well before J.B. went to bed, that the accused began to “feed” her alcohol, both beer and hard liquor. S.G. testified that she and the accused drank at the dining room table, while J.B. wandered around the cabin. This drinking would have been in full view of J.B. . I conclude that it would have been something she noticed and would have recalled if it had occurred as testified to by S.G.
48Further, S.G. testified that her alcohol consumption continued for “hours”, to the point where she became visibly intoxicated. In S.G.’s own words: “I was messed up”, “I couldn’t speak”, “at first I could walk but barely”. S.G. testified that she went up to talk to J.B. , snuck her a beer and danced with her in the loft. According to S.G. the drinking continued until she fell while dancing with J.B. , struck her head and went to bed. Again, this scenario is so remarkable that I find it would have been easily recalled by J.B. if it had occurred as testified to by S.G.
49The evidence of J.B. was put in by an agreed statement of fact. It was not subject to cross examination. The Crown’s submission that it be received with caution because her recollection is admittedly “hazy” and that she has reason to lie about her possible alcohol consumption because of her age is rejected.
50The evidence of J.B. , as set out in the agreed statement of facts, is that she recalls S.G. visiting her dad’s camp during the relevant period. J.B. does not recall either she or S.G. consuming any alcohol during the visit. J.B. recalls going to bed in the same bed with S.G. at which point in time the accused was downstairs watching television. J.B. recalls waking up during the night and going down stairs for a drink of water. At this point, S.G. was asleep on the bed and the accused was downstairs, still watching television.
51In summary, J.B. ’s evidence is that nothing unusual transpired during this visit. I have no reason not to accept the evidence of J.B. at face value. Where it is in conflict with that of S.G., I accept J.B. ’s evidence.
52I am also left in reasonable doubt based on two other aspects of the evidence. Firstly, I find the evidence of S.G. pertaining to being carried up and down the stairs to the loft problematic. The photos introduced into evidence clearly show a steep, narrow set of stairs without a hand railing. S.G.’s evidence that the accused carried her in his arms down these stairs is difficult to accept based on the physical layout. It is also thrown into doubt by the evidence of the accused as to his strength and physical limitations at the time.
53Secondly, the evidence of S.G. is that she freely and voluntarily attended the home of the accused in 2011, in J.B. ’s absence, in pursuit of alcohol and or marijuana. She chose to casually remain in the home overnight, in the same room in which the accused was sleeping on a couch. I acknowledge that the evidence establishes that a friend “R.” was also present. However, even accepting this evidence, I am unable to accept that S.G.’s actions in doing so are consistent with the trauma she allegedly experienced at the hands of the accused in 2008.
54For the reasons stated herein, the guilt of the accused on Count #1 in the indictment has not been proved beyond a reasonable doubt. The accused is found not guilty on Count #1.
The Hon. Mr. Justice J.S. Fregeau
Released: February 15, 2013
COURT FILE NO.: CR-12-024
DATE: 2013-02-15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
C.B.
REASONS ON JUDGMENT
Fregeau J.
Released: February 15, 2013
/slf