ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-452
DATE: 2014 09 02
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
R.B.
Accused
Robert Fetterly, for the Crown
John Rosen and Shannon McDunnough, for the Accused
HEARD: August 5,6,7,8,11,12 and 13, 2014
Lemon, J.
Pursuant to S. 486(4) of the Criminal Code of Canada, an Order has been made in this proceeding directing that the identity of the complainant and the identity of the Applicant and any information that could disclose their identities shall not be published in any document or broadcast in any way.
REASONS FOR JUDGMENT
Issue and Result
[1] Mr. B. is charged with sexually assaulting and unlawfully touching P.C. for a sexual purpose between April 25, 1999, and April 24, 2004. Ms. C. testified that the events in question occurred when no one other than she and Mr. B. were present. Mr. Rosen acknowledges that if the events occurred, the acts constitute the charges as laid. Mr. B. denies that they occurred.
[2] In any criminal case, a trial judge does not simply listen to two sides of the story and reject one of them. Rather, I must first consider the evidence of Mr. B.. If I accept his evidence that he did not commit the acts alleged, I must find him not guilty. Next, even if I do not accept his evidence, if it raises a reasonable doubt then I must find him not guilty. Finally, even if I do not accept his evidence and it does not raise a reasonable doubt, I may then only convict him if the balance of the Crown evidence persuades me beyond a reasonable doubt that he is guilty.
[3] For the following reasons, I find Mr. B. not guilty of the offences because, on the totality of the evidence, I have a reasonable doubt that the offences occurred.
Background
[4] In finding Mr. B. not guilty, I have not rejected the evidence of Ms. C. as being unbelievable, or lies. Indeed, viewed in isolation, her testimony seemed sincere and plausible. For reasons that follow, however, I find that the totality of the Crown evidence is too unreliable to found a conviction.
[5] I am mindful that Ms. C., now 25 years of age, is describing events 10 to 15 years ago when she was 10 to 14 years of age. I must take into account the intelligence and experience of any young witness. I appreciate that at that age, regardless of her memory at this stage, she did not have the same ability as an adult to recall precise details or to describe events fully and accurately. I fully appreciate that she would not have the same ability as an adult to describe what occurred.
[6] At the same time, the adult witnesses were obviously having difficulties with their own memories of what occurred so long ago. A failure of memory or an inconsistency in memory between two witnesses does not equate to being a lie to the court.
Assessment of the Evidence
[7] The evidence of Mr. B. was clear and calm. Despite the lengthy and detailed questioning by the Crown Attorney, Mr. B. was patient and cooperative. In my view, he conceded what he should have. He acknowledged evidence that harmed his case. The Crown points to a number of areas related to peripheral issues such as rules for the children, cars that Mr. B. drove, the kind of evergreen in issue or the process of how Mr. B. cut down trees after he purchased the house in 1993. These inconsistencies are minor and show how little the lengthy and skillful cross-examination could unearth.
[8] Some of Mr. B.’s recollections differ from the other defence witnesses. That is to be expected and does not take away from the credibility of his evidence. The evidence of both Angela and Anna B. was similarly straightforward. While some of their answers differed and were of more benefit to Mr. B., to the extent that they differed, Mr. B.'s answers are all the more credible. In short, there is no reason to reject his evidence. It raises a reasonable doubt.
[9] On the other hand, there are a number of inconsistencies in the evidence of Ms. C. that cause me concern. She agreed that she gave back rubs to Mr. B. after these events occurred. On July 1, 2003, years after some of the alleged events, she gave Mr. B. and his wife a 25th anniversary card with, she agreed, “love and affection”. A number of photographs were placed in evidence that show Ms. C. physically close to Mr. B. when such was not necessary. While not determinative, these circumstances cast some doubt on her statements.
[10] There was a great deal of evidence relating to Ms. C.'s disclosure of what occurred. I have heard evidence about how she told her friends, coworkers, brother, mother and eventually her family. There seems little dispute as to how that occurred. Of course, there may be many reasons for a delay in reporting what occurred. I place no weight on how those events unfolded. I draw no adverse inference against Ms. C. for the delay in reporting.
[11] Of significance to me, Ms. C. said that, at one point, she considered whether the allegations were not true and perhaps were made up. Indeed, she hoped they were. In order to calm her fears in that regard, she took a lie detector test not only to persuade her family members but because of her own doubts. Briefly, she did not believe her memories and wanted them to be untrue. In those circumstances, I am not able to rely on her memories or, as she calls them, "flashbacks" to find guilt beyond a reasonable doubt.
Allegations
[12] There were a total of five events in issue, although the Crown acknowledged that one of them, standing by itself, was not alleged to be a sexual assault or a touching for sexual purpose.
[13] In chronological order, the first event occurred in 1999, when Ms. C. was 10 years old. She said that Mr. B. kissed her on her outer thigh and ran his hand up her leg and under her clothing to touch her vagina. She said this occurred near the chicken coop in Mr. B.’s backyard. Her recollection is that she could see her parents in the kitchen window while this was going on.
[14] Both Patricia and Rosa C. placed the chicken coop near the barn and dog cage to the back and east of the house. The rest of the trial evidence confirms that the chicken coop was, in fact, at the back of the property and behind a large evergreen tree. Relative to the entire property, the coop was not anywhere near the barn and dog cage.
[15] It must be remembered that both of these witnesses were at the property on a regular basis until 2011. Ms. C. would have been 22 by then. The location of the chicken coop is integral to the evidence of Ms. C. Her recollection of the location of the chicken coop is an adult memory, not a child memory. To the extent that she is wrong in that memory, and to the extent that her mother supports her in that testimony, both witnesses are less reliable in the rest of their testimony.
[16] There was much dispute about whether the kitchen window could be seen from the chicken coop. There is a large evergreen tree (the type does not matter) between the two. Many photographs were put into evidence, discussed and cross examined upon. Several were digitally enhanced. None of the pictures, of course, date back to the specific time of the incident. Setting aside the fact that Ms. C. remembers the coop in an entirely different location, I am satisfied that, on a balance of probabilities, in 1999, one would be able to see the kitchen window from the chicken coop, but only on the extreme west side of the coop.
[17] It is notable that, based on Ms. C.’s evidence with respect to this incident, she testifies that it occurred in full view of her parents. This seems unlikely even if the rest of her evidence were not shaken.
[18] Considering a child’s memory and ability to observe, it could be that the event occurred as described but she is wrong about what she could see of the house. Or it could be that the event occurred somewhere else that would allow for a view of the kitchen window. Or it could be that the event did not occur at all in any location. On this evidence, I cannot be sure of which.
[19] The second event was about two and a half years later, in December 2001. Between these events, Ms. C. describes no other inappropriate activity by Mr. B.. He made no efforts to single her out from the other children. Nothing untoward occurred until this next event.
[20] At this point, she described that Mr. B. came into her room on two occasions. On the first, he sat on the bed but when her one-year-old sister stirred, he immediately left. Shortly after that he came back into the room, sat on the bed and lifted up the covers near her feet. She was concerned about his intentions and therefore pinched the baby so she would cry. She did so and Mr. B. immediately left the room. Mr. B. denies this story as she tells it. He provides a somewhat different account.
[21] I cannot rely on Ms. C.’s evidence that this was some sort of attempted sexual assault.
[22] First, there is no evidence to suggest any improper motive by Mr. B. even if I accepted Ms. C.'s evidence.
[23] Second, she agrees that she was sleeping in her cousin Angela B.’s room but has no recollection of where Ms. B. was. On the evidence, it is clear that Ms. B. must have been sleeping in the same room and, if not in the same bed, then in a bed on the floor immediately beside Ms. C.’s bed and between that bed and the door. Ms. B., Ms. C. and the baby were in the room. Given the manner in which the bed was laid out in the room, there would be almost no room for Mr. B. to come through the door. If he did, he would have to step over Angela B. to do what Ms. C. describes. In my view, this is so unlikely that, again, Ms. C.’s memory and description of what occurred is unreliable.
[24] The next event is alleged to have occurred the following day. I am satisfied that it could have occurred as Ms. C. describes. That is to say, that she was in the computer room with Angela B. listening to music. Mr. B. came into the room and directed Angela to assist with vacuuming. Angela left the room. Given the evidence of both Angela and her mother, that could have occurred. Angela needed to be prodded from time to time to do household chores. That would leave Mr. B. and Ms. C. in the same room. Mr. B. could have taken the chair and "spun around" Ms. C. in her chair, whether the chair was a swivel chair or not. He could have kissed her as she describes.
[25] However, Ms. C.'s evidence gives no context to what occurred before or after this. She described all of these events as a "flashback". While possible, it is unlikely to have occurred as described given the number of family members that were in the house at the time. In the face of Mr. B.'s clear and unequivocal denial, I cannot be persuaded beyond a reasonable doubt that this event occurred as described by Ms. C.
[26] Similarly, the last two events are alleged to have occurred while Patricia sat alone in the family room watching TV. She alleges that Mr. B. massaged her back and eventually put his hand under her sports bra and touched her breasts. Despite the number of people that could have been in the house at any one time, I am satisfied that it is possible that the two of them could have been alone in the room at one time.
[27] Yet again, both events are described in exactly the same words; there is very little detail before, during or after. There is no date for the events. While corroboration is not necessary, in this particular case, I am left with only Ms. C.'s evidence against Mr. B.'s denials. The evidence does not rise to the level that persuades me beyond a reasonable doubt that it occurred.
Result
[28] With no reason to reject the evidence of Mr. B. and with significant concerns about the reliability Ms. C.’s evidence, I cannot find that the Crown has proven this case beyond a reasonable doubt. On all of the evidence, I cannot say where the truth lies. Accordingly, Mr. B. is acquitted of both charges.
Lemon, J.
DATE: September 2, 2014
COURT FILE NO.: CR-13-452
DATE: 20140902
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
R.B.
Accused
REASONS FOR JUDGMENT
Pursuant to S. 486(4) of the Criminal Code of Canada, an Order has been made in this proceeding directing that the identity of the complainant and the identity of the Applicant and any information that could disclose their identities shall not be published in any document or broadcast in any way.
Lemon, J.
Released: September 2, 2014