ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. Mehrpouya, 2015 ONSC 2456
COURT FILE NO.: 14-4/126
DATE: 20150416
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
HASSAN MEHRPOUYA
Patrick Clement, for the Crown
David Locke, for the accused
HEARD: February 9-12, 2015
Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.
K.L. Campbell J.:
I
Overview of the Case
[1] The accused, Hassan Mehrpouya, is charged with two offences in connection with his alleged sexual touching of a young female complainant over a three year period of time between May of 2005 and May of 2008, while he taught her piano and guitar lessons at his Toronto apartment. The accused is charged, more particularly, with the offences of touching a person under the age of 14 years for a sexual purpose, and sexual assault, contrary to ss. 151 and 271 of the Criminal Code, R.S.C. 1985, c. C-46, respectively.
[2] Essentially, the complainant, now a 17-year old high school student in grade 12, testified that starting nearly a decade ago when she was only seven years of age and in grade two, the accused began touching her inappropriately during her private, after-school music lessons in his apartment. It began first with physical compliments about how “pretty” she was, and how she had “nice legs.” Then the accused started touching her legs, waist and shoulders while she was playing the piano. Later, the accused progressed to kissing her cheek, neck and lips. It further developed to the accused touching her breasts and the “triangle” of her vaginal area over her clothing. According to the complainant, this sexual touching happened while she was seated on the piano bench, when the accused was sitting next to her, or sometimes in the bedroom after he showed her something on his computer. Sometimes the accused would lay her down on the bed and get on top of her. The complainant testified that, on one occasion when she was standing near the piano, facing the accused, and he was holding her and kissing her, she noticed the accused had his pants unzipped and that his erect penis was exposed, and was pressed against her vaginal area, over her clothes.
[3] The accused is now 79 years of age. He testified and emphatically denied that he had ever touched the complainant sexually, or engaged in any type of inappropriate conduct with her at any time. He was her piano teacher, and later her guitar teacher, and nothing more. He explained that, on occasion, he would physically adjust her posture at the piano, by pulling her shoulders back and pulling her elbows out from her torso, so that she was in the proper position to play the piano. However, the accused flatly denied any suggestion by the Crown that he ever touched the complainant anywhere else, or inappropriately touched her for any sexual purpose.
II
The Presumption of Innocence and
the Burden of Proof on the Crown
[4] As constitutionally guaranteed by s. 11(d) of the Charter of Rights and Freedoms, every person charged with a criminal offence is presumed to be innocent. That applies, of course, to Mr. Mehrpouya. The accused has the benefit of the presumption of innocence unless and until the Crown establishes his guilt with respect to the charged offences beyond a reasonable doubt. That is a heavy burden of proof, and it never shifts. While the accused personally testified and adduced other evidence in support of his defence, he was not obliged to call any evidence, and he has no obligation to establish his asserted innocence.
[5] In the circumstances of this case, it is worthwhile recalling that, as juries are typically instructed, a “reasonable doubt” is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or the lack of evidence. Accordingly, it is not enough for the Crown to convince me that the accused is probably guilty or likely guilty. Proof of probable or likely guilt is simply not proof of guilt beyond a reasonable doubt. At the same time, it is nearly impossible to prove anything with absolute certainty. The Crown is clearly not required to meet that standard. Absolute certainty is a standard of proof that is impossibly high. However, proof beyond a reasonable doubt is much closer to proof of absolute certainty than it is to proof of probable guilt. In order to be satisfied beyond a reasonable doubt as to the alleged guilt of the accused, I must, at the end of the case, after considering all the evidence, be sure that the accused committed the alleged offences. See R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at paras. 13-43; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242; D. Watt, Watt’s Manual of Criminal Jury Instructions (2nd ed., 2015), at pp. 261-267.
[6] In addition, as the accused testified in this case, in assessing whether or not the Crown has proven his guilt beyond a reasonable doubt in relation to these alleged offences, I must apply the three important principles articulated by the Supreme Court of Canada in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, at pp.757-758. In other words: (1) if I believe the testimony of the accused that he did not commit the alleged offences I must find him not guilty; (2) even if I do not believe the testimony of the accused that he did not commit these offences, if his testimony leaves me with a reasonable doubt as to his guilt, I must find him not guilty; and (3) even if the testimony of the accused does not leave me with any reasonable doubt as to his guilt, I may only properly find him guilty of an offence if, based on the evidence that I do accept, I am satisfied beyond a reasonable doubt of his guilt regarding that offence. The application of these principles ensures that reaching a verdict does not devolve into a mere credibility contest between the two main witnesses in a case, and ensures the proper operation of the presumption of innocence and the Crown’s burden of establishing the guilt of the accused beyond a reasonable doubt. See also R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5.
III
Verdict
[7] After having carefully considered all of the evidence in this case, and having reflected on the submissions of counsel, I have reached the conclusion that, for all of the following reasons, the Crown has not established the guilt of the accused for these offences beyond a reasonable doubt. Accordingly, the accused must be acquitted on both charges.
IV
Analysis
A. The Testimony of the Complainant
[8] The complainant was an articulate, intelligent young woman. She does very well in school. She gave her evidence in a forthright and confident manner. She provided a detailed account of her relationship with the accused and how it developed and progressed over time. The accused was not only her music teacher, but he was a family friend.
[9] In her testimony, the complainant explained generally how and where the sexual touching took place. Her mother confirmed that, for the most part, the complainant’s piano lessons were weekly, on Wednesday evenings at approximately 7:00 p.m. The complainant admitted that she had only general memories and recollections of the sexual touching that were “blurs” and “flashbacks” that came back to her mind. Typically, there was no one else in the apartment at the time the touching took place, but sometimes her mother would be in the waiting room down the hall or in the lobby of the apartment building. On rare occasions, if her mother was waiting inside the apartment, the accused would invite her to come and watch and listen to the lesson. The complainant’s mother confirmed that, at least for a time, on occasion, she would wait for the complainant in the living room of the accused’s apartment. However, she often had errands to run, and so frequently she would simply drop the complainant off for her piano lessons, and then return later to pick her up.
[10] When the sexual touching would take place, the complainant always found a way to excuse herself from the situation, either by going to the washroom, or mentioning her mother. The complainant testified that, as time passed, the sexual touching over her clothes by the accused took place with greater frequency, and she ceased to be interested in the piano. She estimated that, on average, this sexual touching took place approximately once a week. The complainant agreed that she did not like practicing the piano, and she was not improving in her playing abilities. Her parents assumed that she did not like the piano and was simply not committed to practicing. The real reason, however, was that she was feeling uncomfortable and violated by the sexual touching that was taking place during her practice sessions with the accused. Eventually, before she reached grade seven, the complainant stopped attending the piano lessons. She explained that she did not initially complain to her parents about the sexual touching as she was young, shy, scared and uncomfortable about it.
[11] Even after the piano lessons with the accused stopped, the complainant’s parents continued their personal relationship with the accused. They would have dinner together, sometimes at the complainant’s home. While the complainant was not happy about seeing the accused in such circumstances, she tried to be courteous. She also tried to spend most of the visit alone in her room. Her parents thought that she was being rude and that she did not like the accused.
[12] The complainant explained how, eventually, when she was attending high school in grade ten, she finally complained about the sexual touching that had taken place while she had been taking music lessons from the accused. Her class had been shown a movie and they were talking about answering the question “if you really knew me you would know that …” This caused her to think back to the sexual touching by the accused and she became emotional in the classroom. Eventually, the complainant told her guidance teacher and ultimately her mother what had happened with the accused, and the police were contacted. The complainant also testified that she had previously told her boyfriend, and had also previously confided in a girlfriend about what had happened with the accused. The guidance teacher confirmed that the complainant’s emotional reaction during her grade ten class took place around November 16, 2012.
[13] In her first police interview, shortly thereafter, the complainant made no mention of her subsequent allegation that, on one occasion, she had seen the accused’s exposed and erect penis and felt it against her vaginal area. She explained that, at the time of the police interview, she simply did not remember that fact. But, in the “flashbacks and memories,” this fact came back to her mind later. She thought that she first mentioned this allegation to her mother at the time of the preliminary inquiry in this case, but she was not sure. She explained that she had tried to forget her piano lesson experiences. She agreed that she was able to remember more of the details of this incident in her trial testimony than she was able to recall at the preliminary inquiry.
[14] The complainant was a talented artist as a child and agreed that she would, on occasion, create a nice card for the accused. One such card was produced as an exhibit. It was dated January 7, 2008. There were colourful flowers drawn on the front of the card and, on the back, it was addressed to the accused, from the complainant “With Luv!” and a large hand-drawn heart. The complainant agreed that she gave this card to the accused during the time period when she alleged that he was touching her sexually.
[15] The complainant agreed that, after she had finished with her piano lessons, she took guitar lessons from the accused for a few months. She explained that the inappropriate sexual touching by the accused continued during this period when the complainant was attending for guitar lessons. Eventually, those lessons stopped too.
[16] The complainant testified that, at some point, there seemed to be a falling out between her parents and the accused, and the accused stopped regularly coming over to their residence. Further, at some subsequent point in time, her parents ended their own relationship and separated from each other.
[17] At the conclusion of her testimony, the complainant delivered a short “speech,” which appeared to be directed largely toward defence counsel and the accused. During this soliloquy, she decried defence counsel’s focus on the details of her evidence and the breadth of his cross-examination. She explained that the accused had regularly taken money from her parents to teach her the piano, but that he had instead taken advantage of her, and had touched her inappropriately, and that this had a lasting effect on her to the extent that she could not play anymore. The complainant contended that it was this “big picture” that was important, not the details. Further, the complainant explained that she was in attendance at the trial not for any personal reasons, and she was not getting anything out of the prosecution, but she only wanted to see that justice was done, and to see that the accused “gets what he deserves,” as it was not fair what he did to her.
[18] Having summarized the main elements of the complainant’s testimony, I must say that, while I was generally favourably impressed with her testimony, there were aspects of her evidence that impact negatively upon the weight that I am prepared to give her evidence. These problematic aspects of her evidence have caused me to have a reasonable doubt as to the alleged guilt of the accused.
[19] First, the complainant did not disclose the alleged sexual touching to anyone for years after it took place. I appreciate that the old evidentiary rule about “recent complaint” has long been abrogated, and there is no inviolable rule about how victims of sexual assault will behave and when, if ever, they will disclose such trauma. The potential reasons for delayed reporting of such offences are many and varied and include embarrassment, fear, guilt, or a lack of understanding and knowledge. However, in assessing the credibility of the complainant, the timing of the complaint is one circumstance that may properly be considered. See R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65.
[20] In my view, in the circumstances of the present case, it is appropriate to take into account the complainant’s lengthy delay in making any mention of the alleged sexual touching by the accused as one factor in assessing the reliability of her evidence. After all, as the Crown accurately observed in his closing arguments, the complainant was recalling events that, for her, happened “half a life-time ago.” Further, this delay in reporting the alleged offences led to the complainant being able to recall the alleged sexual touching in only a general and generic fashion. Indeed, the complainant frankly conceded that she had tried to forget these events, and had only general memories that were “blurs” and “flashbacks” that came back to her mind.
[21] Second, the complainant’s evidence does display some frailties that have an impact on my assessment of the reliability of her evidence. I appreciate that the assessment of the evidence of a child witness differs in some respects to the traditional assessment of the evidence of an adult witness. While there are no strict and fixed rules in this regard, it is generally accepted that a somewhat more forgiving scrutiny should be applied in relation to the evidence of children given their tender years, mental immaturity, and the reality that they may experience the world differently from adults. Accordingly, details that might be important to adults might be missing from their recollection. See R. v. B.(G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30, at pp. 54-55; R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, at pp. 132-134; R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, at pp. 238-239. At the same time, while the complainant was certainly testifying about events that allegedly took place when she was a child, the complainant was 17 years old at the time she gave her evidence at trial. See R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at paras. 9-11. In any event, I have tried to fairly and properly assess the complainant’s evidence by reference to criteria appropriate to her individual development, understanding and ability to communicate. That said, in my view there were some frailties in the complainant’s testimony that serve to undermine her reliability as a witness.
[22] For example, the complainant testified that, on one occasion, while the accused was holding her and kissing her, his pants were unzipped and his erect penis was exposed and pressing against her vaginal area over her clothes. One might reasonably expect that this would be a startling event that would be difficult for anyone to forget, especially as the complainant said that this happened only once. However, in her initial statement to the police, she made no mention of this incident. Moreover, in her trial testimony, the complainant explained that she did not tell the police about this incident at that point because she did not remember it until later. Importantly, her explanatory testimony was not that she forgot to tell the police about the incident, but rather that, at the time she was interviewed by the police, she had not yet remembered this event – in other words, she had no memory of this event until later. Further, in her trial testimony, the complainant frankly stated that she “definitely” remembered more details about this event now, than she had recalled in her preliminary inquiry testimony. Accordingly, at least in relation to this particular incident, the complainant’s memory improved over time. That is an uncommon and somewhat suspect phenomenon.
[23] While this example is the most obvious frailty in the complainant’s evidence, there are other aspects of her testimony that have also caused me to question her reliability as a witness. More particularly:
• It strikes me as odd that the complainant would create and send the accused a nice hand-drawn card, displaying a heart, and expressing her “luv” for the accused, if he was sexually assaulting her at the time. The creation and delivery of this card suggests that the relationship between the complainant and the accused was a more positive one than might reasonably be expected if the accused was actually sexually assaulting the complainant as she claimed.
• A former friend of the complainant’s mother testified that, after she came to Canada in July of 2007, and was looking for a piano teacher for her own daughters, she spoke directly to the complainant about the accused one day as she was preparing to go to one of her lessons, and the complainant told her that “she liked her teacher a lot,” and that he was “very serious.” Again, it strikes me as odd for the complainant to express such a sentiment at a time when the accused was allegedly touching her sexually. One might reasonably have expected the complainant to have, in some way, warded her mother’s friend away from the idea of taking her teenaged daughters to piano lessons with the accused.
• The Crown candidly conceded during his closing arguments that it was “quite self-evident” that the complainant “clearly overstated” how often the alleged sexual touching took place. This exaggeration by the complainant is not explained, however, by the fact that the accused also periodically physically touched the complainant only to adjust her posture at the piano. In my view, it is difficult to understand how such innocuous, non-sexual touching could be confused with the sexual touching of her breasts and vaginal area so clearly alleged by the complainant. As the Crown fairly acknowledged during his submissions, this was a “problem” with her evidence. In my view, this issue impacts negatively on her reliability as a witness.
• It also strikes me as unusual that, once her piano lessons with the accused were over, the complainant agreed to go back to the accused for guitar lessons, knowing that the sexual touching would likely continue. One might reasonably have expected her to voice some objection to her parents to avoid returning again to the accused’s apartment for more music lessons, and inevitably more sexual touching.
[24] Third, the complainant’s evidence as to the alleged sexual touching is not confirmed or corroborated by any other evidence. The complainant’s mother also testified in this matter, but provided no evidence that in any way confirmed or corroborated the evidence of the complainant about the alleged sexual touching. The Crown did not suggest that her emotional reaction to the movie in her grade ten class, which led to her disclosure of the alleged sexual assaults, could provide any confirmation or corroboration of her evidence.
[25] This is not to say that an accused cannot be convicted, in an appropriate case, solely on the basis of the evidence of a single complainant. Any such suggestion would “fall prey to the false myths regarding sexual offence complainants as inherently suspect or untrustworthy.” See R. v. N.S., [2001] O.J. No. 3944 (S.C.J.), at para. 57; R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, 66 C.C.C. (3d) 321, at pp. 347-348, 352-354; R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439, at pp. 453-454; R. v. Vetrovec, 1982 20 (SCC), [1982] 1 S.C.R. 811, 67 C.C.C. (2d) 1, at p. 819. Indeed, the law is clear that a conviction of an accused in a sexual assault case may, in appropriate circumstances, be properly based upon an outright rejection of the testimony of the accused and a considered and reasoned acceptance of the truth of the testimony of the complainant beyond a reasonable doubt. See R. v. D.(J.J.R.) (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont.C.A.), at para. 53, leave denied, [2007] S.C.C.A. No. 69; R. v. T.M., 2014 ONCA 854, 16 C.R. (7th) 308, at para. 68.
[26] I only make the observation that the complainant’s evidence as to the alleged sexual touching stands alone, without any corroboration or confirmation, as a matter of fact given the state of the evidence in this particular case. This is a factor that can properly be taken into account in assessing whether or not the Crown has met its burden of proving the guilt of the accused beyond a reasonable doubt. See R. v. Camp (1977), 1977 1092 (ON CA), 36 C.C.C. (2d) 511 (Ont.C.A.), at p. 521.
[27] I appreciate that there is no evidence suggesting that the complainant has any clear motive to fabricate her allegations against the accused. In these circumstances, however, it is important to recall that this does not mean that the complainant has no motive to fabricate her allegations and, therefore, must be telling the truth. See R. v. B. (R.W.) (1993), 24 B.C.A.C. 1, at para. 28; R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412, at para. 44; R. v. O.M., 2014 ONCA 503, at para. 107. As Simmons J.A. stated, in delivering the judgment of the Court of Appeal for Ontario in R. v. L.L., at para. 44:
When dealing with the issue of a complainant’s motive to fabricate, it is important to recognize that the absence of evidence of motive to fabricate is not the same as absence of motive to fabricate. As Rowles J.A. stated in R. v. B. (R.W.) … : “it does not logically follow that because there is no apparent reason for a witness to lie, the witness must be telling the truth.” Put another way, the fact that a complainant has no apparent motive to fabricate does not mean that the complainant has no motive to fabricate.
[emphasis added – citation omitted]
B. The Testimony of the Accused
[28] The accused testified in his defence. He is now 79 years of age. He is an educated and cultured man, and has maintained his mental acuity despite his advancing years. He was born in Tehran, Iran, and he studied art and music there through a program paid for by the air force. He graduated from his conservatory studies in 1960, and thereafter spent a decade in the air force. Thereafter, the accused worked in a variety of jobs connected to classical music, ballet and opera. The accused has two daughters. They came to Canada together in 1991. The accused is now a Canadian citizen. The accused explained that, in Canada, he earned his living largely by teaching piano and guitar lessons. He is an especially well-known music teacher in the Iranian community in Toronto. During some of the period of time when the complainant was coming to the accused for piano lessons, one of his daughters (and her husband) resided in this same apartment.
[29] In his evidence the accused explained how he had been approached for music lessons and how the music lessons for the complainant were set up by her mother. The complainant’s mother brought her to the lessons and sometimes waited in the apartment for the lessons to be completed. On occasion, the complainant’s mother watched the lessons. As the accused recalled, the complainant’s lessons were on Wednesdays at 6:30 p.m. The accused testified that his daughter was usually in the apartment during these lessons as she was usually home from work by 5:30 p.m. on Wednesdays. According to the accused, his daughter would be quiet during this time, as she knew that he was teaching music lessons, but she would still go into the kitchen or washroom, if she needed to, during the lessons. Sometimes, there were also other music students in the apartment waiting for their own lessons. The front door of the apartment was left open to permit students to come and go from their lessons without disturbing other students during their lessons.
[30] The accused flatly denied that he had ever touched the complainant sexually, or that he had ever developed a sexual attraction for the complainant. More specifically he denied that he ever touched her sexually while she was practicing at the piano in his apartment, or in the bedroom of his apartment. The accused explained that these allegations were simply not true and that he had never done anything like that. The accused agreed that he would sometimes sit at the piano bench with the complainant while she was practicing, to conduct the lesson or provide a demonstration. He also agreed that, on occasion, he would correct her posture at the piano by adjusting her shoulders or elbows to show her the proper posture for playing the piano. However, he denied that he ever kissed her, or touched her breasts or her groin area. He denied that he had ever exposed his penis to the complainant.
[31] The accused’s daughter, who is now 43 years of age, confirmed that she and her husband lived with her father in his apartment between the spring of 2004 and the spring of 2007. She recalled that she was unemployed for a period of time in 2004, but obtained a full-time job as a dental assistant in the summer of 2005, and kept this job until 2008. She explained that her hours of employment were weekdays from 8:30 a.m. to 4:30 or 5:00 p.m. She never had any late shifts. Her travel time back and forth to work was between 45 and 60 minutes. She could not testify with certainty that she was home every Wednesday before 6:30 p.m., but she testified that it was her routine to return home to the accused’s apartment each day right after work. Further, she explained that, during this period of time, after she had returned home, she would see the complainant coming for her piano lessons in the apartment. While the accused’s daughter testified that she would, for the most part, stay in her own room during these music lessons, she testified that she would go to the kitchen or the bathroom if necessary, but she tried not to interrupt the lessons when they were ongoing. Sometimes she greeted the complainant and made small talk with the complainant’s mother. The accused’s daughter testified that she never saw the complainant going in or out of her father’s bedroom. Indeed, she testified that he kept his bedroom door open. She also confirmed that the apartment door was left open when the music lessons were ongoing to permit student to come and go without interrupting any lessons.
[32] The accused testified that, at one point, the complainant also began to take guitar lessons, and then they split their lesson time between the piano and the guitar. The accused estimated that this continued for a period of perhaps six to eight months. The accused also recalled that the complainant eventually began attending another teaching facility for music lessons, closer to their residence. Ultimately, the complainant stopped coming to him for music lessons as this other teaching facility was much closer and more convenient for the complainant.
[33] The accused explained his relationship with the complainant’s family. He testified that, after the music lessons had been ongoing for about three months, the complainant’s parents would sometimes call him and want to socialize. In this way, they occasionally had lunches and dinners together, sometimes at the complainant’s parent’s home. He thought that their relationship was “very good.” They respected him as a teacher and as a human being. They never made any complaints about the music lessons. He told the complainants parents that she had to practice more frequently at home, and they agreed with that assessment. Their relationship eventually ended after the complainant stopped coming to him for music lessons. The accused recalled that the last time he was at their family residence was for a Persian new year event in March of 2010. The accused stopped teaching later that same year, when he developed severe osteoporosis.
[34] The accused testified that, on occasion, the complainant would give him a card that she had created. The accused explained that the complainant was a sensitive and creative child and sometimes brought him drawings or paintings that she had done. The accused was also interested in art. According to the accused, the complainant was very good with colours, but not so good with dimensions, and he encouraged her to go to the library and learn more about art. The accused denied that he used his computer in his bedroom to show the complainant artwork on the internet.
[35] Having summarized the main planks of the testimony of the accused, I am driven to conclude that it too raises at least a reasonable doubt in my mind as to his guilt in relation to these alleged offences.
[36] Throughout his testimony, the accused maintained his innocence, and denied the allegations made against him. There were no significant inconsistencies in his version of events, nor were the details of his testimonial denial inherently unreasonable or illogical in light of all of the other evidence in the case.
[37] Indeed, one important aspect of his evidence was confirmed by his daughter, namely, that she was frequently present in the accused’s apartment during much of the time that the accused is alleged to have sexually assaulted the complainant. Her presence at many of these key visits, in my view, supports the testimony of the accused that he never touched the complainant sexually. It would certainly seem unlikely that the accused would choose to sexually assault the complainant by the piano in the living area of the apartment while his adult daughter was in the apartment and might wander into the living room and see such activity at any moment. Of course, the accused’s daughter was not the only one who might have been in the apartment for these piano lessons. As the complainant testified, her mother was sometimes waiting in the apartment, and could similarly, at any moment, have entered the living room area to listen to the piano lesson. Further, as the front door of the apartment was left open for other students, they might also enter the apartment unexpectedly. Needless to say, if the accused was regularly sexually assaulting the complainant by the piano at her weekly lessons in these circumstances, he was engaging in very high risk behavior. In all of the circumstances of this case, I am not prepared to infer that the accused willingly engaged in such high risk behavior in order to heighten the excitement of his sexual touching of the complainant.
[38] Further, there was nothing in the manner in which the accused gave his evidence that led me to conclude that he was an incredible or unreliable witness. He answered all of the questions posed to him without hesitation or reluctance and in a straight-forward manner. In short, there is nothing in the accused’s evidence, or the manner in which he gave his evidence, that would lead me to reject it entirely. In the result, his testimonial denials leave me with at least a reasonable doubt as to his alleged guilt.
V
Conclusion
[39] In outlining my reasons for reaching these verdicts, I have not conducted a detailed review of the evidence of every witness. Rather, I have focused upon the testimony of the two key witnesses, the complainant and the accused. They are the only two people who know for sure whether the complainant’s allegations are true or not. I have specifically addressed the evidence of the other witnesses only where that evidence was important to my analysis. I have, however, considered all of the evidence in reaching my verdicts.
[40] In the result, based upon all of the evidence in this case, considered in its totality, I am simply not satisfied that the Crown has proven these charges beyond a reasonable doubt. The evidence of the complainant does not satisfy me, in the context of the case as a whole, as to the guilt of the accused beyond a reasonable doubt. Further, the testimony of the accused, again viewed against the evidentiary backdrop of the case as a whole, has also left me with a reasonable doubt as to his alleged guilt.
[41] In the final result, the accused must be acquitted of both charges.
Kenneth L. Campbell J.
DATE: April 16, 2015
CITATION: R. v. Mehrpouya, 2015 ONSC 2456
COURT FILE NO.: 14-4/126
DATE: 20150416
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
HASSAN MEHRPOUYA
REASONS FOR JUDGMENT
K.L. Campbell J.
Released: April 16, 2015