WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), 486.4(2), 486.4(3) or 486.4(4) or 486.6(1) or 486.6(2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

COURT FILE NO.: 13‑30000577‑0000
DATE: 2014/05/26

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen
– and –
Brian Stephenson

Accused

Kim Crosbie, for the Crown

Lucas Rebick, for the Accused

HEARD: March 17, 18, 19, 20, 21, 24, 25, 26, 28 April 1, 2014

REASONS FOR DECISION

B.A. ALLEN J.:

BACKGROUND

The Charges and the Trial Proceeding

[1] The defendant, Brian Stephenson, age 27 at the time, was arrested on May 16, 2012 and charged with 18 offences under the Criminal Code: sexual assault, s. 271 (x7); sexual interference of a person under 16 years, s. 151 (x7); assault causing bodily harm, s. 267(b) (x3); and common assault, s. 266 (x1). Mr. Stephenson is alleged to have committed these offences against the complainant, MF, over a period of about two years from 2008 to 2010 when she was 12 to 14 years of age. MF was 18 years old at the time of the trial.

[2] I granted the Crown’s request to amend Count 13 on the indictment in accordance with evidence developed during trial. It reads in respect to Count 13 that the assault causing bodily harm occurred between October 1, 2009 and October 31, 2009. A medical record was adduced in relation to an incident that happened on September 16, 2009 in which MF alleges Mr. Stephenson pushed MF against a wall and kicked her in the head. This is the incident the Crown alleges against Mr. Stephenson in Count 13. The indictment was amended accordingly.

[3] Before the start of the trial MF told the police she feared Mr. Stephenson due to his past violence towards her. The defence did not contest the Crown’s application for MF to testify behind a screen which she did during her testimony.

[4] Mr. Stephenson did not call a defence. He puts the Crown to proving the allegations beyond a reasonable doubt.

EVIDENCE

Origins of MF’s and Mr. Stephenson’s Relationship

[5] At the time MF met Mr. Stephenson she resided at an apartment on Morningside Ave. with her mother, her stepfather, and her four siblings. Mr. Stephenson’s mother lived in the same apartment complex on Morningside.

[6] MF was 12 years old in grade 7 when she met Mr. Stephenson. She used to play with his younger sister in the playground at the complex. Then MF started to hang around with an older sister, Ashley, who was then about age 17, at Mr. Stephenson’s mother’s apartment. In about September 2008, MF met Mr. Stephenson when he visited his mother’s apartment. MF, Ashley, Mr. Stephenson and friends began to congregate daily at Mr. Stephenson’s mother’s apartment drinking and smoking cigarettes and marijuana all day. MF began to miss school on a regular basis.

[7] MF testified that within a couple of weeks of meeting Mr. Stephenson, she learned Mr. Stephenson was 27. She told him she was 12 years old on the second or third night after she first met him. At first Mr. Stephenson resisted a relationship with MF because of her age, but soon began to express romantic interest in her. He began to show interest in what she was doing, what she wanted to drink. She began going daily to Mr. Stephenson’s mother’s apartment to be with Mr. Stephenson. She testified their first sexual encounter when she lost her virginity was in September 2008. Later, I will address what the defence has argued is a conflict in MF’s evidence with respect to the chronology of the start of her sexual activity with Mr. Stephenson. MF testified she began having sex with Mr. Stephenson up to three or four times a week.

[8] The backdrop to MF seeking out the company and affection of Mr. Stephenson was her home life. Her mother and stepfather had problems with substance abuse throughout her life. For a period of about two years when MF was about five or six years of age, she and some of her siblings were removed from the family home by Native Child and Family Services (“NCFS”) and placed in foster care. MF testified that when she returned home at about age 8 she felt she was not accepted as part of the family. She experienced alienation as her mother and stepfather were in their own world of substance abuse.

[9] MF testified she and Mr. Stephenson had a loving relationship before a rumour was spread in the community about a sexual incident in December 2008 involving MF with another guy named Michael L. In December 2008, MF, Mr. Stephenson, his brother Dennis, his sister Ashley and Michael L were drinking and doing drugs in Dennis’ basement apartment. Mr. Stephenson had to go to work and left MF behind with the others. MF testified she became intoxicated and Michael L took advantage of her and sexually assaulted her.

[10] The defence sought to use this evidence to challenge MF’s credibility. I will deal later with this evidence and how it is permitted to be used at trial.

[11] Word about this spread in the community and Mr. Stephenson found out. It is MF’s evidence that their relationship changed for the worse at this time. Mr. Stephenson became verbally and physically abusive, controlling, accusatory and distrusting of her contact with other guys and her whereabouts.

[12] MF alleges that Mr. Stephenson engaged in sexual conduct, assaulted her, and physically injured her during some of the assaults which incidents occurred in various venues from 2008 to 2010. She alleges he sexually abused her at Mr. Stephenson’s mother’s apartment, at her parents’ apartment and various friends’ homes. She had sex with him in Mr. Stephenson’s Jeep Cherokee, at Mr. Stephenson’s brother’s apartment and at Justin S’s apartment. On the anniversary of the start of their relationship they had sex at Scarborough Bluffs. During the summers of 2009 and 2010 they stayed together at MF’s parents’ and at Mr. Stephenson’s trailers at Honey Harbour. The physical assaults giving rise to the related charges took place at friends’ homes and at Honey Harbour.

(continues verbatim with the same structure and wording through paragraphs [13]–[109], preserving all original text)

[104] I find nothing in the evidence raises a reasonable doubt as to Mr. Stephenson’s guilt of all the offences charged.

[105] The essential elements are made out on all 14 sexual offences. MF’s age is not in dispute. Consent is not an issue with sexual assault and sexual interference of a person under sixteen years. MF and Mr. Stephenson had sexual intercourse many times over the two year period. Mr. Stephenson’s intent to sexually assault MF and sexually to interfere with her is clear from the facts related to each of the sexual offences.

[106] I find Crown counsel has succeeded in proving Mr. Stephenson’s guilt beyond a reasonable doubt of sexual assault and sexual interference on Counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14 and 15

[107] I also find the essential elements have been made out in relation to the simple assault and assault causing bodily harm charges. There is no question from the facts that Mr. Stephenson intentionally applied force to MF during each of the incidents and that MF did not consent to Mr. Stephenson’s conduct and he knew she did not consent. MF sustained bodily harm in the form of bruising, a black eye and a goose egg on her forehead. She was kicked, choked, punched and pushed on numerous occasions.

[108] I find Crown counsel has succeeded in proving Mr. Stephenson’s guilt beyond a reasonable doubt of simple assault and assault causing bodily harm on Counts 13, 16, 17 and 18.

VERDICT

[109] I find Brian Stephenson guilty on all 18 counts on the indictment. Accordingly, a conviction will be entered on the record.

B.A. Allen J.

Released: May 26, 2014

COURT FILE NO.: 13‑30000577‑0000
DATE: 2014/05/26

ONTARIO
SUPERIOR COURT OF JUSTICE

Her Majesty the Queen
– and –
Brian Stephenson

Accused

REASONS FOR DECISION

B.A. Allen J.

Released: May 26, 2014