ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-40000150-0000

DATE: 20140605

BETWEEN:

R.

– and –

G.L.

Defendant

Kathy Nedelkopoulos, for the Crown

Todd White, for the Defendant

HEARD: March 17, 18, 19, 20, 21, April 22, 23, 24, 25, May 2, & 16, 2014

r.f. goldstein j.

reasons for judgment

1G.L. is charged with one count of sexual assault and one count of sexual interference. The Crown alleges that he had sex with the complainant, K.S., when he was 25 and she was 13. G.L. and K.S. connected on a dating website. K.S. testified that she and G.L. met twice. The first time was at 3 am one morning. She snuck out of her house, met G.L., and had sex in his car. The second time was a few days later. She and her friend, R., met G.L. in the park near her house.

2G.L. agrees that he met K.S. and R. in the park one day. He says that was the sum total of their interaction. He denies that he had sex with K.S. in his car at 3 am.

3For the reasons that follow, I find that G.L. is not a credible witness. I did not believe him and his evidence did not leave me in a state of reasonable doubt. I found problems with the evidence of K.S. but on the critical question of whether or not she had sex with G.L., I believe her and find her to be credible. I find that G.L. and K.S. did have sex in G.L.’s car at 3 am one morning. Accordingly, the Crown has proven the elements of each offence beyond a reasonable doubt and there will be findings of guilt on both charges.

FACTS

4In 2008 K.S. was a 13 year-old girl. She went to public school. She was heavily involved in her online life. She had many profiles on many different social media and dating sites. She testified that she met a guy named G.L. on the website Untz.ca. At other times she indicated that the site might have been Vibe.to. Untz.ca is a dating website. Vibe.to is a social media and dating website.

5K.S.’s profile indicated that her age was 13. She testified that G.L. sent her a message. On his profile he said that he was Italian, that he lived in Maple, and that he was 17. He had posted pictures of himself. She thought that he was maybe 17 to 20. When K.S. eventually met G.L. she thought that he looked like his pictures. It is acknowledged that there are messages on a website where G.L. indicated to people that he was 17. K.S. testified that they exchanged MSN addresses and chatted on MSN. They also exchanged telephone numbers and chatted by text message.

6According to K.S. one night she was chatting with G.L. via text message. It was very early in the morning, perhaps 2 a.m. G.L. wanted to meet. K.S. was sceptical, because it was late and it meant sneaking out of the house. She was concerned that she would wake up her mother or that the dog would bark. She said that G.L. put pressure on her to meet him. They began texting as he headed over in his car. She gave him her neighbour’s address and although she was hesitant she snuck outside and came to his car. She was wearing pyjama pants and a t-shirt. Her pants were red with snowmen. She recalled that the weather was warm. He was waiting for her when she got outside. He got out of the car and walked over to her and took her over to the passenger seat of his car. They drove to a park and parked. He started touching her legs. Eventually he got on top of and took her pants and underwear down. He moved the seat back. He pulled his own pants down. They had sexual intercourse. K.S. could not remember if he used a condom or not. She also could not remember if he ejaculated inside her or in a Kleenex.

7A few days later K.S. sent a text message to G.L. as she felt used. She thinks that he said “hi” in response. They exchanged text messages. She was with her friend R., who was also 13. K.S. may have told R. that she had had sex with G.L. R. testified that she did. G.L. said that he wanted a threesome but K.S. responded that her friend wouldn’t do it. He said that he was in the area. K.S. and her friend went to meet up with him. K.S. testified that G.L. wanted to talk about a threesome. They met in the parking lot of the park. G.L. was trying to convince the two girls to have a threesome but R. made up an excuse so that they could leave. The meeting did not last long. He drove away. A few days later she left a message on his Untz.ca profile. The message was something like “Really? Seriously?”

8G.L. testified that he met K.S. on the website Vibe.to when he was 24 or 25. It was around October 2008. He remembers that her profile said that she was 18. He cannot remember the age he put on his profile but it might have been 18 or 19 even though he was 25, although sometimes on various sites he said he was 24. He says that he never posted that he was younger than 18. He said that he used the younger age because he was told he looked younger. G.L. said that he and K.S. messaged each other on the site as well as on MSN and by text message.

9G.L. further testified that one day in December 2008 K.S. brought up the question of a threesome with her and her friend. K.S. said that her friend was good-looking and was up for it so he went to see her. They met and he did not find either K.S. or her friend attractive. He felt that K.S. was un-classy. He left and went home. He says that he never had sex with K.S. in the middle of the night in his car. He says that they had the one meeting, which K.S. instigated. It was a fleeting encounter and no sexual activity occurred. He testified that they never met at 3 am and had sex in his car.

10K.S. did not go to the police and the matter would likely have never come to light but for Krista. Krista was a woman who was somehow involved with G.L. The nature of Krista’s involvement with G.L. is unclear. Krista did not testify. All of the evidence concerning Krista came through K.S. Printouts of a Facebook conversation and a set of Facebook notes were also entered into evidence. The issue of notes vs. messages came up extensively in the cross-examination of K.S. and I will analyze that issue below.

11Krista’s role was to contact the police and tell them that G.L. had had sex with an underage girl. Krista obviously provided some information to the police about K.S. because it led the police to her. At the time Krista was in some kind of dispute with G.L. G.L. and Krista may have a child together. They may have dated. They may have had a long-term relationship. They certainly had a relationship of some kind, but the nature and extent of that relationship is shrouded in hearsay mystery. The information before this Court is based solely on what Krista told K.S. The one thing that does seem to be fairly certain is that Krista made allegations against G.L. to the police but that the police declined to lay charges.

12According to K.S., Krista became aware of the “Really? Serously?” message that she left on G.L.’s profile. Krista and K.S. both became aware that they were having sex with G.L. during the same time-frame. K.S. told the police that she had checked her notes on Facebook and could date her encounter with G.L. to the summer of 2008 because she met Krista on Facebook in September 2008. Krista and K.S. subsequently became friends on social media. She met Krista and her son just one time. In 2011 there was a dispute of some kind between G.L. and Krista. As noted, Krista went to the police. She obviously told the police that G.L. and K.S. had had a sexual encounter when K.S. was underage, because in April 2011 the police attended at her residence to interview her. K.S. and Krista then engaged in an exchange of furious Facebook messages where K.S. complained bitterly that she did not want to be involved with the police or in a court case. Notwithstanding that, she did attend for an interview at the request of the police and told them that she and G.L. had had sex in his car when she was 13 years old.

ISSUES

13Where an accused person has chosen to testify, the analysis of credibility to be applied by a jury or a judge sitting alone was set out by Cory J. in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742:

28 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.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, 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.

14A criminal trial is not a credibility contest. A trial judge does not simply decide who is more credible. Rather, the accused is entitled to the benefit of the doubt arising from his evidence. If the accused is not believed or believable, he is still entitled to the benefit of any doubt arising from the whole of the evidence, or lack of evidence.

15Of course, that formula is easily stated but difficult to apply in practice where the allegation is a historical one and there is little, if any, objective evidence against which a trier of fact can measure the credibility and reliability of human memory. Indeed, in a “she said, he said” trial (such as this one) where the trier of fact does not know whom to believe, the accused is entitled to an acquittal: R. v. Challice (1979), 1979 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont.C.A.); R. v. C.W.H. (1991), 1991 3956 (BC CA), 68 C.C.C (3d) 146 (B.C.C.A.).

16In my view, therefore, there are two issues to be determined:

(1) Do I believe G.L.? If not, does his evidence leave me in a state of reasonable doubt?

(2) Am a satisfied on the evidence that I do accept that the Crown has proven the elements of each offence beyond a reasonable doubt?

ANALYSIS

1. Do I believe G.L.? If not, does his evidence leave me in a state of reasonable doubt?

17G.L.’s evidence in chief was in many respects similar to the evidence of K.S. in chief. He said that they met on the website Vibe.to, although he also agreed that he also had a profile on Untz.ca. He could not recall who initiated contact but he agreed that they used MSN and then text messages to chat.

18G.L. testified that he and K.S. met online around October 2008. He initially did not recall when they met in person but his memory was refreshed when he saw his phone records. He saw that there had been a phone call to K.S.’s home telephone number on Monday December 1 2008 at 3:56 in the afternoon. The call was registered as 1 minute but an examination of the bill makes it obvious that all calls of 1 minute or less are registered as 1 minute.

19G.L. testified that he had not wanted to meet K.S. because he wasn’t really attracted to her. He thought she was really un-classy. He said that she brought up the idea of a threesome. K.S. had said that her friend was good-looking and up for it. He assumed her friend was 18 because he thought K.S. was 18, although he agreed in cross-examination that he didn’t really think about it that much. He said that K.S. was pursuing him, not the other way around. He said that the encounter in the park with K.S. and her friend was fleeting: there were some other people around, and he decided that he did not want to get involved because he did not find either of them attractive.

20As noted, G.L. stated in cross-examination that he did not use his true age. I accept that many people do not tell the full truth or even lie about themselves on a dating site any more than many people do not tell the full truth and even lie about themselves on a c.v. or job application. Most of the time these half-truths and lies are relatively harmless. Ultimately, however, I do not believe G.L. I also find that his evidence does not leave me in a state of reasonable doubt. I say this for the following reasons:

• It makes no sense that a 24 or 25 year old man would indicate that he is 18 or 19 or a dating website, send out blast messages, and not understand that many younger females would respond to him. G.L.’s explanation for stating on his profile that he used the age of 18 or 19 simply because people told him he looked younger is unusual, to say the least. I certainly accept that there are men who seek to date older women, but since G.L. did communicate with K.S. and says he thought she was 18, it stands to reason that his target audience, so to speak, was younger women and not older women. He agreed in cross-examination that he did communicate with females under the age of 18 on a dating website. If his target audience was in the age range of 18 years old, there would have been no need for him to indicate that he was 18 or 19 in his profile. I make this finding because 18 or 19 year-old women are age appropriate (in the sense that they are not underage) for 25 year-old men.

• It is acknowledged that G.L. did indicate that he was 17 in at least some communications on dating websites. Why would a 24 or 25 year old man tell females on a dating website that he was 17? No communications were introduced into evidence between K.S. and G.L. where he indicated that he was 17. K.S. testified that G.L. stated that he was 17 on his profile. For the reasons I set out below, I ultimately accept K.S.’s evidence that G.L.’s profile indicated that he was 17. The only reason for G.L. to have stated on his profile that he was 18 or 19 (or even 17) was so that he could meet females younger than 18 in my view.

• K.S. is currently 19 and looked her age when she testified. She is unmistakably a young adult in her appearance. I would be extremely surprised if she did not look considerably younger than 18 when she met G.L. I do not accept his evidence that she looked the same as she does now, and I do not accept his evidence that he thought she looked 18 when he met her. It is simply contrary to human experience that a person who is 19 will look the same as she did when she was 13. The years from age 13 to age 19 are times of great physical change. In my view, notwithstanding G.L.’s evidence that he thought K.S. was 18 is not credible, this fact is not a major consideration in my assessment of G.L.’s credibility, because looks can obviously be very deceiving and subjective. Still, however, it does not assist him.

• There is no evidence that G.L. made any inquiries of K.S. as to her age. G.L. was on a dating site and indicating (on his evidence) that he was 18 or 19. He admitted in cross-examination that he knew that he might well have been meeting with someone underage. Although the statutory defence of mistake of age pursuant to s. 150.1(4) does not apply since G.L.’s defence is simply that the sexual act didn’t happen, I find it strange and troubling that G.L. appeared to have a complete lack of curiosity about K.S.’s age.

• I accept K.S.’s evidence that she stated on her profile that she was 13. For the reasons that I indicate below, I found K.S. to be a credible witness. Given my finding that she was telling the truth that she indicated that she was 13 on her profile, it is inconceivable that G.L. did not know that. That throws the entirety of his evidence into question, although I hasten to add that it is not the only issue bearing on his credibility.

• G.L. maintained that he did not find K.S. attractive online right from the beginning. If that was the case, then why did he continue to maintain contact with her through MSN chat and text messages? He was communicating with many females. Why did he keep talking to her even though he maintained throughout that he wasn’t attracted to her and found her un-classy and foul-mouthed? Even if I accepted that he was willing to drive to meet K.S. and her friend because of the prospect of a threesome with at least one attractive young woman, the idea of the threesome came late. It does not explain the periods prior MSN and chat contact.

• I reject G.L.’s evidence that the threesome was her idea and that he rejected it because he did not find the girls attractive. I observed both K.S. and her friend R. during their testimony. K.S. was consistent throughout that the threesome was G.L.’s idea. R. corroborated that evidence. G.L. testified that he was interested in the threesome because K.S. had said that her friend was hot, gorgeous, and would be into it. G.L. testified that he thought that K.S. was un-classy, foul-mouthed, overweight, and unattractive. I do not believe that G.L. would have relied on the say-so of K.S. about her friend given his assessment of K.S.’s perceived looks and personality. I find that his evidence is not credible on this point.

• It is clear that the police became aware that G.L. had sex with K.S. when K.S. was underage as a result of information provided by Krista. Krista obviously knew that K.S. was underage. That was the entire reason she went to the police. She either knew that K.S. was underage from K.S.’s Untz.ca page, from G.L., or from K.S. herself – or from all three sources. A direct link cannot be drawn such that Krista’s knowledge can be imputed to G.L., but the circumstantial evidence suggests that if Krista knew that K.S. was underage, G.L. must have also known.

Although, as I have said, a criminal trial is not a credibility contest, “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”: R. v. (D.)J.J.R. (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont.C.A.) per Doherty J.A. I accept the truth of K.S.’s evidence that she said on her profile that she was 13 and that the threesome was G.L.’s idea. I reject G.L.’s evidence. I also find that his evidence does not leave me in a state of reasonable doubt.

DISPOSITION

66I am satisfied beyond a reasonable doubt that G.L. is guilty. There will be convictions on both charges.

R.F. Goldstein J.

Released: June 5, 2014