ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Mr. A. Shatto, for the Crown
- and -
A.S.
Ms B. Lawson, for the Defence
Defendant
HEARD: December 1, 2014
REASONS FOR JUDGMENT
Conlan J.
I. Introduction
[1] A step-father’s alleged sexual abuse is what this case is all about.
[2] The accused, Mr. S., was tried before me, without a jury, in Owen Sound on December 1, 2014. It was a very short trial. There were just two witnesses – the alleged victim and the accused. The evidence took less than one full day to complete.
[3] The only issue is whether the alleged incidents of sexual contact actually occurred. Matters such as date, jurisdiction and the age of the complainant are not in dispute
II. The Charges
[4] Mr. S. is charged with sexual assault. The formal charge (Count 1 on the Indictment, as amended) reads:
Her Majesty the Queen presents that A.A.S., between the 1st day of December in the year 2005 and the 30th day of June in the year 2006, at the Town of South Bruce Peninsula, Central West Region, did commit a sexual assault on K. S.-M., contrary to section 271 of the Criminal Code of Canada.
[5] Mr. S. is also charged with two counts of sexual interference. The formal charges (counts 2 and 4 on the Indictment, as amended) read:
That A.A.S., between the 1st day and 31st day of December in the year 2005, at the Town of South Bruce Peninsula, Central West Region, did for a sexual purpose touch K. S.-M., a person under the age of sixteen, directly with a part of his body, to wit: his penis, contrary to section 151(a) of the Criminal Code of Canada.
That A.A.S., between the 1st day of February in the year 2006 and the 30th day of June in the year 2006, at the Town of South Bruce Peninsula, Central West Region, did for a sexual purpose touch K. S.-M., a person under the age of sixteen, directly with a part of his body, to wit: his penis, contrary to section 151(a) of the Criminal Code of Canada.
[6] Mr. S. is further charged with two counts of invitation to sexual touching. The formal charges (counts 3 and 5 on the Indictment, as amended) read:
That A.A.S., between the 1st day and 31st day of December in the year 2005, at the Town of South Bruce Peninsula, Central West Region, did for a sexual purpose invite K. S.-M., a person under the age of sixteen, to touch directly with her hand, to wit: the penis of A.A.S., contrary to section 152 of the Criminal Code of Canada.
That A.A.S., between the 1st day of February in the year 2006 and the 30th day of June in the year 2006, at the Town of South Bruce Peninsula, Central West Region, did for a sexual purpose invite K. S.-M., a person under the age of sixteen, to touch directly with her hand, to wit: the penis of A.A.S., contrary to section 152 of the Criminal Code of Canada.
III. The Essential Elements of the Offences
[7] Regarding sexual assault, the Crown must prove the following essential elements beyond a reasonable doubt:
(i) that Mr. S. intentionally applied force to K. S.-M.; and
(ii) that the force that Mr. S. intentionally applied took place in circumstances of a sexual nature.
[8] If the Crown has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find Mr. S. not guilty of sexual assault.
[9] If the Crown has satisfied me beyond a reasonable doubt of each of these essential elements, I must find Mr. S. guilty of sexual assault
[10] In this case, because of the age of the alleged victim at the material times, consent and honest but mistaken belief in consent (which can in other cases be two additional essential elements of a charge of sexual assault) are not relevant. Those are not defences available to the accused.
[11] Regarding sexual interference, the Crown must prove the following essential elements beyond a reasonable doubt:
(i) that K. S.-M. was under sixteen years old at the time;
(ii) that Mr. S. touched K. S.-M.; and
(iii) that the touching was for a sexual purpose.
[12] If I am not satisfied beyond a reasonable doubt of all these essential elements, I must find Mr. S. not guilty of sexual interference.
[13] If I am satisfied beyond a reasonable doubt of all these essential elements, I must find Mr. S. guilty of sexual interference.
[14] The first element has been satisfied – the age of the complainant, at the material times, is not in dispute. She was well under sixteen years old.
[15] Regarding invitation to sexual touching, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
(i) that K. S.-M. was under sixteen years old at the time;
(ii) that Mr. S. invited K. S.-M. to touch Mr. S’s body; and
(iii) that the touching that Mr. S. invited was for a sexual purpose.
[16] If I am not satisfied beyond a reasonable doubt of all these essential elements, I must find Mr. S. not guilty of invitation to sexual touching.
[17] If I am satisfied beyond a reasonable doubt of all these essential elements, I must find Mr. S. guilty of invitation to sexual touching.
[18] Again, the first element has been satisfied.
IV. The Evidence at Trial
The Evidence of the Complainant, K. S.-M.
[19] K. S.-M. is now 18 years old, born in […] 1996. The accused is her former step-father.
[20] The alleged incidents occurred when K. S.-M. was about ten years old and in grade 5.
[21] At that time, Mr. S. was in a relationship with the complainant’s mother.
[22] According to K. S.-M., in the winter of 2005/2006, likely in December or January, at the family home in Wiarton, Ontario, in the middle of the night, the accused put her bare hand on his exposed, erect penis and had her masturbate him for ten to fifteen minutes.
[23] That took place downstairs, between the kitchen and the living room. Nobody else in the home was awake at the time.
[24] The accused had escorted the complainant downstairs after she woke up and was crying and hysterical. She had banged on her mother’s bedroom door for several minutes. Only Mr. S. woke up and opened the door.
[25] Sometime later, when the family lived in Allenford, Ontario, the accused asked the complainant whether she remembered coming to see him in the middle of the night and asking to see his penis. She did not remember that then and still does not remember it now.
[26] On a later date, between February and June 2006, at the family home in Allenford, in the middle of the day, when nobody else was around (though perhaps in the house at the time), Mr. S. put lubricant on her hand and placed her bare hand on his exposed, erect penis and had her masturbate him for ten to fifteen minutes until he ejaculated.
[27] That took place in her bedroom.
The Evidence of the Accused, Mr. S.
[28] The accused testified. He denied the allegations. He denied ever inviting the complainant to touch him sexually. He denied ever touching her sexually. He denied her ever touching him sexually
[29] Mr. S. stated that the complainant never liked him. She resented him from the start because of the break-up of her mother’s relationship with her father. K. S.-M. and Mr. S. were never close.
[30] In addition, according to the accused, there were always several persons in the home at the time of the alleged incidents. As many as twelve persons, at times, lived at the home in Wiarton, and more than half a dozen lived at the Allenford house.
[31] I have given myself the following instruction. This applies to each charge against the accused.
[32] If I believe Mr. S.’s evidence that he did not commit the offence charged, I must find him not guilty.
[33] Even if I do not believe Mr. S.’s evidence, if it leaves me with a reasonable doubt about his guilt, I must find him not guilty.
[34] Even if Mr. S.’s evidence does not leave me with a reasonable doubt of his guilt, I may convict him only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.
V. The Positions of the Crown and the Defence
The Crown
[35] The Crown submits that all of the charges have been proven beyond a reasonable doubt.
[36] The complainant was a compelling, credible and reliable witness. She gave a detailed account of two incidents of inappropriate sexual contact between her and the accused.
[37] Any inconsistencies that arise from the complainant’s evidence are minor, relate to peripheral matters or were adequately explained by K. S.-M. at trial.
[38] Mr. S. was not a credible or reliable witness. His evidence ought to be rejected.
The Defence
[39] The Defence submits that none of the charges has been proven beyond a reasonable doubt.
[40] The Court ought not to believe the evidence of the complainant. She is not a credible or reliable witness. Her testimony suffers from several inconsistencies. Her story is simply contrary to common sense.
[41] The accused was a forthright witness. He was adamant and unshaken in his denials of having ever engaged in any form of sexual contact with K. S.-M.
VI. ANALYSIS
The Law
[42] Generally, where an adult witness (K. S.-M.) is testifying about events that allegedly occurred when she was a child, her credibility ought to be assessed as an adult witness. But the presence of inconsistencies, especially on peripheral matters, should be considered in the context of her age (about ten years old) at the time of the alleged events. R. v. W.(R.), 1992 56 (SCC), [1992] S.C.J. No. 56 (S.C.C.) at paragraph 26.
[43] Courts ought to be very cautious about placing any weight at all on the fact that a child victim of sexual assault did not complain in a timely way. After all, such an argument is based on a “stereotype which found expression in the now discounted doctrine of recent complaint”. In reality, “victims of abuse often in fact do not disclose it, and if they do, it may not be until a substantial length of time has passed”. W.(R.), supra at paragraph 30.
The Evidence of the Accused
[44] I do not believe the denials of Mr. S. I am not left in a reasonable doubt by the evidence of the accused.
[45] First, Mr. S. testified in a relatively antagonistic and frequently non-responsive manner. For example, he kept referring to school records as being corroborative of his testimony as to who lived in the home at various times, even though such commentary was superfluous and irrelevant because no such evidence was ever tendered at trial.
[46] Second, Mr. S. took every opportunity at trial to take cheap-shots at the mother of the complainant. I recognize that there is apparently some family litigation between the accused and the mother of K. S.-M., however, there was no reason to turn the trial in to an expose of the alleged failings and deficits of the complainant’s mother.
[47] Third, Mr. S. was generally not a credible witness. Some of his testimony was just plain silly and unbelievable.
[48] For example, he went to great pains to deny that he was a step-father to the complainant, despite that he and her mother lived together for a decade and share two children.
[49] Further, the accused went on a rant in the witness box about the complainant’s mother having a history of making wild allegations of sexual abuse by other men, which begs the question as to why Mr. S. lived with her for ten years and had two children with her.
[50] In addition, Mr. S. testified that he never stepped foot in the complainant’s bedroom at Allenford. He went even further to say that he could not tell the Court anything about that bedroom. That is absurd – the family lived there for many months. That was an obvious attempt by Mr. S. to make it sound like the allegations against him are impossible to be true.
[51] Also, the accused testified that not only did he never touch K. S.-M. sexually but he never touched her at all, ever, except for one hug that she gave him. That is preposterous.
[52] Further, according to Mr. S., he has just two good memories of his relationship with the complainant – one trip to Canada’s Wonderland and one hug that they shared when she turned 15 or 16 years old. Apparently, the accused is a sucker for punishment; he persists in living in a home for years, surrounded by virtual strangers.
[53] Fourth, the accused, at times, was inconsistent in his evidence. For example, he first stated at trial that he and the complainant’s mother were never apart – never. Beyond the impossibility of that being true, he then changed his evidence to say that they were rarely ever apart. That was another obvious attempt by Mr. S. to make it sound like the allegations against him are just physically not possible.
[54] Fifth and finally, Mr. S. has a history of crimes of dishonesty. That history adversely affects his credibility. In 1992, he was convicted of mischief. In 2012, he was convicted of criminal harassment and breach of an undertaking. In 2013, he was convicted of two counts of breach of probation.
[55] For all of these reasons, collectively, I reject the evidence of Mr. S.
The Evidence for the Crown
[56] That leaves the question as to whether the Crown has proven the charges beyond a reasonable doubt.
[57] I must be careful not to hold the defence evidence to a level of scrutiny higher than that applied to the Crown's case.
[58] I also must not simply accept the evidence of the complainant and find that it amounts to proof beyond a reasonable doubt just because I have rejected the testimony of the accused.
[59] Deciding a criminal case is not a mere choice between the case for the Crown and that on behalf of the accused.
[60] I do not place any weight on the fact that K. S.-M. did not complain to anyone about the alleged incidents until well afterwards and did not report the matters to the authorities until many years later.
[61] I have been careful to assess the evidence of K. S.-M. in light of the direction given by the Supreme Court of Canada in W.(R.), supra.
[62] K. S.-M. strikes me as a fairly bright, well-spoken and straightforward young lady.
[63] I think that K. S.-M. was likely the victim of sexual abuse at the hands of the accused.
[64] But I am not sure. I have a reasonable doubt.
[65] First, I am concerned about the absence of any confirmatory evidence.
[66] Although corroboration is not required, as pointed out by the Crown in its closing submissions, the law is clear that the lack of corroboration remains a factor relevant to reliability and whether there is proof beyond a reasonable doubt.
[67] In this case, although the living circumstances were such that one might expect some corroborative evidence to exist, there is none.
[68] Second, I am concerned that the manner of testimony of the complainant seemed somewhat rehearsed. The word “rote” came to my mind as I listened to and watched the complainant. The demeanour of K. S.-M. in the witness box appeared strangely flat, detached and bordering on light-hearted.
[69] Again, these observations are relevant to reliability.
[70] Third, although I place no weight on some of the alleged inconsistencies relied upon by the Defence (such as the minor issue of whether Mr. S. brought the towel to the bedroom that was used to clean himself off after the third alleged incident), I am concerned that the evidence of the complainant suffered from inconsistencies on non-peripheral, highly material matters which are relevant to credibility.
[71] For example, it is clear that she conveyed to the police officer, incorrectly, that there were three incidents of Mr. S. having touched her sexually. In fact, according to her trial testimony, she recalls nothing about the second alleged incident, and even what the accused allegedly said to her the next day is not evidence of any sexual contact having occurred (she merely asked to see his penis).
[72] I acknowledge that K. S.-M. gave an explanation at trial for why she left the police officer with the clear impression that there were three incidents of sexual touching – Mr. S. had implied to her that there was an incident that occurred in Allenford but which she had no recollection of. That explanation does not alleviate my concern. What the complainant conveyed to the police officer was, at the very least, misleading.
[73] Further, the complainant was inconsistent in her description of how the third alleged incident came to an end. The rather sinister conduct attributed to the accused at trial, the alleged whisper in to the girl's ear to placate the young man knocking at the bedroom door, was absent in the complainant's earlier statement to the police.
[74] In addition, although K. S.-M. told the police officer that Mr. S. had ejaculated at the conclusion of the first alleged incident that occurred in Wiarton, at trial she testified that she did not know or did not recall whether he ejaculated or not.
[75] Fourth and finally, I am concerned about the implausibility of some of the evidence of the complainant which surrounds the alleged incidents of sexual touching.
[76] An implausible account gives rise to a credibility issue.
[77] For example, I find it difficult to comprehend that a young girl could be hysterical and bang on a bedroom door for several minutes, while crying and screaming, with nobody in the busy house awakening except for the accused.
[78] Collectively, these considerations have left me with a reasonable doubt as to whether the two alleged incidents in Wiarton and Allenford occurred as described by K. S.-M.
[79] Again, I think that they probably did, but that is not sufficient.
[80] I hope that K. S.-M. understands that this is not meant as a rebuke of her.
[81] The criminal standard of proof is a relatively high one. Consequently, many cases will not reach the bar, even those presented ably by Crown counsel, as this one was.
VII. Conclusion
[82] For the foregoing reasons, I find Mr. S. not guilty of each charge on the Indictment, as amended.
Conlan J.
Released: December 3, 2014
COURT FILE NO.: CR 14-73
DATE: 20141203
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
A.S.
Defendant
REASONS FOR JUDGMENT
Conlan J.
Released: December 3, 2014