R. v. TG, 2015 ONSC 2906
COURT FILE NO.: 40000559-0000
DATE: 20150506
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TG
Defendant
Sarah Loosemoore, for the Crown
Albert Diniz, for the Defendant
HEARD: April 7 -10, 2015
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.
E.M. Morgan J.
[1] The Defendant is charged with one count of sexual assault contrary to s. 271 of the Criminal Code and one count of sexual interference with a person under the age of fourteen, contrary to s. 151 of the Criminal Code.
[2] The indictment does not particularize the time and place of the incidents in issue. It states only that the sexual assault took place sometime between January 1, 2004 and January 31, 2011, and that the sexual interference with a minor took place sometime between January 1, 2004 and November 10, 2006.
I. The Complainant’s allegations
[3] The Complainant, KP, was born on […], 1992. She testified that the Defendant was a family friend and the boyfriend of her mother’s close friend, MJ. The Defendant and KP first met sometime in 2004. KP used to spend a lot of time at MJ’s apartment, and the Defendant was often there.
[4] The second charge, sexual interference, relates to events which took place prior to KP’s fourteenth birthday on […], 2006. The incidents going to this charge therefore had to have taken place between her first meeting the Defendant in 2004 and her birthday in […] 2006. The first charge, sexual assault, is distinguishable from the other charge in that it does not relate to KP’s specific age. The incidents going to this charge therefore could have taken place anytime between when they first met in 2004 and their last encounter with each other in 2011.
[5] KP testified that the last time she was sexually assaulted by the Defendant was when she was 17 years old, which would put the date sometime between […] 2009 and […] 2010. In addition, they had one further encounter in 2011, but there is conflicting evidence as to whether any sexual contact took place on that occasion.
(a) The allegations from 2004-2006
[6] The incident most graphically described by KP at trial was the one that she, at least initially, referred to as her first sexual encounter with the Defendant. She testified that this took place at the Defendant’s apartment on Niska Road in Toronto. As will be described below, she added at a later point in her testimony, almost as an after-thought, that there was a sexual incident with the Defendant that pre-dated this ‘first’ incident at the Niska apartment; nevertheless, the Niska incident stands out as the most prominent allegation of sexual conduct by KP against the Defendant.
[7] KP testified that the Niska encounter occurred in October 2005, when she was 12 years old. KP stated that she exchanged text messages with the Defendant and arranged to meet him at his apartment, which was only 5 minutes from where she lived. When she arrived there the Defendant was with his infant son and was watching TV. She said that he asked her to sit on his lap but she said no, and then when the baby fell asleep they both went upstairs to the bedroom. According to KP, the Defendant then started touching her breasts and eventually she lay on her back on the bed and he performed oral sex. He then took off his pants and inserted himself part way into her, and began “moving in a circular motion” as she described it.
[8] KP insisted that she told the Defendant to stop, but that he kept saying that he wouldn’t hurt her and that she’d be okay. He continued to move slowly in “a circular motion” until he finished. She stated that he ejaculated outside of her, not in her vagina. He then gave her some money – she thought it was about $60 or $80 – and she got dressed and walked back home. When she was asked how she felt about the incident, KP testified that at night she was bleeding and in pain but she doesn’t think she thought about it emotionally. She never told anyone about what had transpired.
[9] According to KP, the Niska incident occurred very shortly after the Defendant had bought her a pair of shoes as a gift. She described this as an important moment in her life, because her mother, who KP at the time thought paid more attention to her younger sister than to her, had bought KP’s sister some new shoes but had not bought KP anything. KP testified that the Defendant came to her apartment when no one else was home and gave her a pair of pink shoes that he had bought for her.
[10] KP recalled very distinctly that this was the first time she had been alone with the Defendant. Prior to this, she had known the Defendant simply as the boyfriend of her mother’s friend, MJ. From this point, however, KP described their relationship as going to a new level. Counsel for the Crown has described the shoes as being “a symbol” for KP at the age of twelve. KP stated, in fact, that when he gave her the shoes, the Defendant told her that she could ask him for anything that she ever needed. According to KP, within days after this private meeting the sexual encounter at the Niska apartment occurred.
[11] The gift of the shoes may well have been a symbol of something in KP’s mind, but the symbolic message is a confused one. For one thing, KP’s mother, JM, and her mother’s friend, MJ, both testified at trial, and they have very different recollections about the shoes and the context in which they were given.
[12] By way of background, I note that KP has apparently remained close to her mother over the years. KP indicated at the outset that she is now 24 years old and still lives at home with her mother, and that she looks to her mother for emotional support. As a witness, JM was indeed very supportive of KP and gave the impression that she is concerned to do right by her daughter.
[13] As for MJ, KP does not see her as frequently as she did when she was young as she no longer lives nearby, but they are still friendly. KP described MJ as having been a surrogate mother to her during her youth when her own mother worked long hours, and it is apparent that MJ still cares for KP. Moreover, MJ has long ago broken up with the Defendant and although they are still on cordial terms they have seen each other very infrequently over the past number of years. Both JM and MJ struck me as honest witnesses who, if anything, are quite sympathetic to KP.
[14] MJ said in no uncertain terms that it was her idea, and not the Defendant’s, to buy a pair of shoes for KP when she was 12 years old. MJ herself had noticed that JM had bought the sister some shoes and had not bought a pair for KP, so MJ sent the Defendant, who was at the time her boyfriend and who had a car, to Walmart to purchase them. MJ said that the shoes were black leather, not pink, and that the Defendant brought them back from the store and gave them to MJ, not to KP.
[15] MJ stated that the shoes were a gift to KP from her, not from the Defendant. The Defendant testified that he never visited KP’s apartment to deliver the shoes or otherwise, and MJ confirmed that KP came over to MJ’s apartment to get the shoes. MJ testified that she never saw or knew of the Defendant visiting KP’s apartment during the entire time they were together.
[16] In addition, KP’s mother testified that, in fact, her friend MJ gave the shoes to her, and that she then handed them over to her daughter. According to JM, the Defendant had nothing to do with the shoes. JM also recalled the shoes being black, not pink. Furthermore, JM had no recollection or knowledge of the Defendant ever visiting her or her daughter at their apartment.
[17] It is of great concern that an incident so proximate in time and so intimately tied in KP’s mind to the first sexual contact she claims to have had with the Defendant, appears to have been confused and, in crucial part, fantasized. Counsel for the Crown suggested in her final submissions that there may perhaps have been two pairs of shoes, one black and one pink. That is, of course, theoretically possible; however, it is conjecture for which there is simply no evidence. One could also speculate as to what else the Defendant gave KP. The fact is, however, that KP’s testimony is that the Defendant gave her one pair of pink shoes and that he delivered them to her at her apartment. That did not happen.
[18] Two reliable witnesses, one of which is KP’s own mother, confirm the Defendant’s version of the shoe incident. It was MJ, and not the Defendant, that gave KP a gift of black shoes, and the shoes were given to KP when she was visiting MJ’s apartment. The prelude to intimacy with the Defendant that is implied by KP’s version – the private meeting at her own home, the gift of pink shoes that suggests the Defendant’s consciousness of KP’s femininity, and the Defendant’s promise of more things to come – simply did not happen.
[19] Having listened to KP testify over the course of two days, I have come to very much sympathize with her. She described a troubled childhood in which she frequently misbehaved, lied about her whereabouts, was caught stealing, and did various other things that got her into trouble with the law. She has clearly gone through an ordeal that has brought her to the point where she is a complainant at this trial. However, her testimony regarding this very first and most prominent incident in her allegations gives me pause. If the supposedly romantic prelude to the Defendant’s sexual advances was a product of KP’s imagination, what is one to make of her description of the sexual advances themselves?
[20] As referenced above, KP also went on to testify that this first incident was not, in fact, the first incident. Although she had previously, in both her statement to the police and at the preliminary inquiry, characterized the Niska incident as the first one, she stated at trial that months prior to the Niska visit she had a sexual encounter with the Defendant at MJ’s apartment.
[21] According to KP, this preliminary, or very first incident occurred when the Defendant was sitting around in MJ’s apartment with a number of people present. KP said that he first asked her sister to sit on his lap, and when she refused he asked KP and she obliged him. KP described that once she was on his lap he started moving his body in “a circular motion” – the same phrase that she consistently used to describe the Defendant’s sexual movements during intercourse. KP testified that she cannot remember how this early incident of sexual contact ended, but said that eventually she just came off of him and went home.
[22] Defense counsel characterizes KP’s description of this incident as being “highly improbable”. He points out that according to KP, her sister and MJ were both at home at the time, and her sister was sitting right next to her. Defense counsel submits that for the Defendant to have engaged in the kind of sexualized conduct described by KP would have been so risky that the likelihood of its having actually happened is very small.
[23] MJ appears to have no recollection of any such incident, and KP’s sister was not called to testify. Credibility is already at issue in this case when it comes to KP describing, and the Defendant denying, having sex in private; KP’s description of the Defendant having sexual contact with her in full view of other people simply defies credulity.
[24] KP related that the third incident occurred in December 2005, when the Defendant had sex with her in a stairwell near the basement laundry room of the Jane Street apartment building where she lived. According to KP, she met the Defendant at the building that day and asked him for money. He gave her about $40 and then asked her for “a little bit”, which KP said she took to mean sex. She said that she told him No, that her mom was upstairs, to which he replied that it wouldn’t take long and, as at the Niska apartment, that he wouldn’t hurt her.
[25] At trial KP said that they then retreated to a secluded stairwell near the laundry room where the Defendant first performed oral sex on her and then had intercourse with her in a face-to-face position while she sat on the stairs. She described how after a few moments he turned her around and had vaginal intercourse with her from behind while her hands and knees were on the stairs. She then described the Defendant’s actions in the same way as previously: “He started moving in a circular motion until he ejaculated.”
[26] When KP gave her statement to the police during their investigation, she gave a similar description of the stairwell, but seemed to suggest that rather than vaginal intercourse the Defendant turned her around to have anal intercourse. Of more concern than this discrepancy is the fact that the stairwell near the laundry room seems an unusual place for a sexual encounter. Once again, defense counsel submits that it is highly improbable that this venue would provide the kind of seclusion that sexual activity would seem to require.
[27] MJ, who was very familiar with the Jane Street apartment building, effectively confirmed defense counsel’s characterization of the stairwell. She testified that one of the entrances off the lobby of the building was close to the staircase near the laundry room. This was a high traffic area, with people entering the building lobby from the north, south, and west side. MJ stated confidently that the staircase was open, that many people used the laundry facilities in the building, and that there was no privacy in the stairwell leading to the laundry room.
[28] The next incident described by KP took place when she was 13 years old, sometime in the spring of 2006. KP testified that at some point during that year, the Defendant had moved from Niska Road to Shoreham Street. This next incident was described by her as having taken place in the parking lot of the Shoreham apartment complex, inside of a red car owned by the Defendant.
[29] KP testified that the Defendant was seated in the driver’s seat of the car and she was in the passenger’s seat. She said that at first he asked her to perform oral sex on him, and when she declined he placed her hand on his genitals and started moving it up and down. According to KP, they then each pulled down their pants and he attempted to have intercourse with her in the front seat. When that didn’t work, she climbed into the back seat and he got out of the car and went around to the back seat. There he first performed oral sex on her and then inserted his penis into her vagina and started moving “in a circular motion” until he finished.
[30] Once again, the story related by KP raises a series of concerns. In the first place, the Defendant testified that he never lived at the Shoreham Street apartment although he was very familiar with it because his wife and children lived there. This is the reverse of what KP had stated at the preliminary inquiry, where she had testified that the Defendant lived at Shoreham while his family lived at Niska. The Defendant also indicated that although he at some point did own a red car, it had been repossessed well prior to 2006. These mistakes, of course, may simply reflect the young KP’s confusion over dates or her misunderstanding at the time with respect to who lived where in the Defendant’s life.
[31] At the same time, the way the story has been told raises similar concerns about the likelihood of its occurrence as some of the other incidents related by KP. In his testimony, the Defendant reacted with surprise at the improbability of anyone engaging in such a visible sexual escapade in the front and back seats of a car in the Shoreham parking lot. He stated that the parking lot is crowded with people walking by and heavily trafficked with vehicles.
[32] The Defendant asserted in no uncertain terms that the Shoreham building, where his own wife and children lived and where he himself was known to a great many of the residents, would be the last place he would ever contemplate having a secret sexual liason. Defense counsel points out that according to KP herself, the Defendant had already had sex with her in the privacy of his own home; he asks rhetorically, with considerable merit, why, if the Defendant was already in a car and could drive anywhere, he would stop in a crowded spot to have sex in a parking lot where he could easily be recognized by his own family, among other people.
[33] KP also testified as to three other incidents that she said occurred sometime between her birthday in […] 2005 and the summer of 2006. She described another incident taking place in the Defendant’s red car in Centennial Park. KP related that it was in the early evening. She recalled that it was cold outside and that the Defendant’s hands were so cold they had to turn on the heat in the vehicle. Counsel for the Crown submits that KP’s memory of the Defendant’s cold hands is the kind of detail that lends credibility to this story.
[34] In her testimony, KP said that she recollected talking to the Defendant about getting her driver’s license and that the Defendant had offered to teach her to drive. One might also be tempted to say that her memory of the specific topic of conversation is the kind of detail that supports the veracity of her memory and her narrative. According to KP, while the two of them were sitting and talking in the front seat of the car the Defendant was rubbing her breasts under her shirt and she rubbed his penis until he ejaculated.
[35] The confusing part about the Centennial Park incident is that KP was quite certain that it had occurred prior to her having moved with her mother to Oakville. Since the evidence is clear that the move to Oakville took place in the fall of 2006, KP would have been 13 years old at the time of this incident. It seems odd that a 13 year old would be talking about getting a driver’s license or that the Defendant would be offering to teach her to drive in preparation for the license.
[36] While it is conceivable that a license that was still over 3 years away may have been on the mind of a 13 year old, the supposed topic of conversation makes me skeptical about this incident. As with a number of things related by KP, her memory of events and details must be weighed against a tendency to embellish the story with improbable facts.
[37] Another incident related by KP took place in her own apartment on Jane Street. As KP told it, the Defendant came over in the middle of the day. At some point, they were on her mother’s bed and KP and the Defendant removed their clothing. She said that the Defendant penetrated her vaginally and started “moving in a circular motion”. KP stated that he eventually ejaculated on her mother’s bed so that she had to clean it up. KP said that he then left and probably gave her some money, but she doesn’t specifically remember.
[38] She does remember, however, that the visit occurred in the summer of 2006. She also testified that the Defendant came over in the middle of the afternoon, around 3:00 p.m., although she provided no details about how this meeting was arranged between them. She did indicate that she has a specific memory that her mother was at work, her stepfather who lived with them at the time was out somewhere, and her sister was at school. In fact, it seems unlikely that her sister would be at school in the middle of the summer, but there was no explanation for this discrepancy in the story.
[39] KP also testified that the Defendant would occasionally pick her up from school in his truck that he drove for work. According to KP, one sexual incident that took place in 2005 occurred in the truck while parked at the Brookview Middle School. In his testimony, the Defendant said that the only work truck he had for an extended period of time was a white cube van, but that he did not get this truck until well into 2007. In another part of her testimony KP did in fact describe the white cube van, but this was in relation to a later incident.
[40] Although there was some confusion over the matter, the Defendant eventually stated that he had another work truck for a short period earlier on. He explained that this truck belonged to the furnace installation business that he worked for, and that he drove it during the day to the customers’ homes. It may have been this truck that KP meant when she described the 2005 incident.
[41] The Defendant testified that his employer never sent him out alone in the truck and that he always was accompanied by a helper. As the Defendant put it, he cannot move a furnace alone. Defense counsel submits that there is no evidence that KP ever met a helper in the Defendant’s truck.
[42] Again, it seems more than improbable that the Defendant would seek sexual gratification from KP in the middle of the day, and certainly not when a helper was present to witness it. On the other hand, it does strike me as quite telling that KP knows so much about the Defendant’s life that she can identify a vehicle that he drove for work when she was only thirteen years old.
(b) The allegations from 2006 to 2011
[43] KP and her family moved to Oakville in September 2006. Two months later, in […] 2006, KP turned fourteen. That period represents a watershed in her life, as she appears to have entered a more mature stage.
[44] The next incident described by KP, shortly after moving to Oakville, occurred at the Palisades apartment building in the Jane-Finch area of Toronto. KP testified that the Defendant was living there at the time and that he had roommates. The Defendant testified that although he did know some people at the Palisades, he never lived there. According to the Defendant, he moved from his apartment on Niska Road to another apartment on Tobermory Drive where he lived with his daughter, grandson, and son. In any case, KP says that they had sex at the Palisades at least one time.
[45] She testified that she recalls once being in an apartment at the Palisades and sitting with the Defendant on the bed watching TV. She said that he wore only underwear. She related that at some point he got up and closed the door and then “played with himself until erect”. She said she took her clothes off and that they had sex, and then both of them left the apartment after he finished.
[46] When KP gave her statement to the police investigating this case, she said that the Defendant had sex with her on three occasions at the Palisades. At trial, she reduced this to one occasion, with no explanation for the discrepancy. She did try to explain herself in cross-examination, but came up with the unlikely theory that she can remember events from 2006 better now in 2015 than she did several years ago.
[47] In final argument, counsel for the Crown acknowledged that the Defendant was very firm in stating that he had never resided at the Palisades; indeed, there is no evidence other than the testimony from KP that he did actually reside there. Crown counsel suggested that since the Defendant testified that he knew people in that building, he may have been staying with some friends and had KP up to his friends’ apartment.
[48] That, of course, is certainly within the realm of possibility. Again, however, there is simply no evidence of it. It is equally within the realm of possibility that the Defendant lived or had friends in numerous other Toronto buildings. With the greatest of respect, the Crown cannot fill in missing evidence with ungrounded conjecture. The fact is that KP stated that the Defendant lived for some time in the Palisades building, when there is no other evidence to support this and he insists that he did not. I note that the Crown produced no driver’s license, utility bills, or other documentary evidence to support KP’s testimony regarding the Defendant’s residential addresses over the years.
[49] KP testified that after living at Palisades, the Defendant moved to an apartment on Tobermory Drive, near the Jane and Driftwood area. She said that he lived there with his young son and, for a time, with his adult daughter and her son. The Defendant testified that he moved to the Tobermory apartment much earlier, in the summer of 2004, and that until 2007 he indeed lived there with his daughter and grandson and, eventually, his son. The Defendant indicated that his son was about 6 years old when he moved in with him in the Tobermory apartment.
[50] The Defendant also testified that until his daughter moved to Calgary in 2007, it was a very crowded apartment and that he cannot recall KP visiting him there. He stated that he had no privacy in the Tobermory residence, and that for several years he didn’t even have a room of his own and shared his grandson’s bedroom. He also said that after his son moved in he had greatly increased childcare responsibilities. Although he conceded that his son went to school during the daytime, he testified that he worked each day and spent very little time alone in the apartment.
[51] KP indicated that, in fact, she had “countless” sexual incidents with the Defendant at the Tobermory apartment. Considering this testimony, it was somewhat surprising that she could recount only a few actual examples of sexual conduct at Tobermory. As she described them, the incidents all followed a pattern in which she would ask for money, go over to his apartment, and it would lead to sex. The physical contact generally entailed him rubbing his body up against hers and him asking her for a “little bit” or a “taste of my apple”. She said that this would occur either in the living room or in his bedroom.
[52] In one incident which she did specifically recollect, she said they were sitting on the couch and he performed oral sex. She testified that she told him that she didn’t want to do it and that she wanted to go home, but that he said, “Just a little bit. It won’t take long.” She continued, “He put his penis in my vagina until he ejaculated. It happened like that all the time.”
[53] KP indicated that she would go to the Tobermory apartment either in the daytime or at night, both weekdays and weekends depending on how her day was going. She said that after they had sex the Defendant would usually give her some money – anywhere up to $100 – and she would then leave. She conceded that the Defendant’s son was often there when she visited, but that he would either be on the computer or in his own room not paying them any attention.
[54] There is something exaggerated about both the Defendant’s and KP’s testimony regarding their relationship during this period.
[55] On one hand, KP seems to know a great deal about the Defendant’s apartment, and was able to draw a sketch of its layout. The Defendant testified that KP was indeed in the Tobermory apartment one time – the very last time that they encountered each other, as will be described later – and that she may have grasped the layout of the apartment from that visit. Nevertheless, it was clear from her testimony that KP was comfortable with the apartment and knew its design quite well. It seems improbable that she could draw an accurate picture of the apartment if she had been there only once for a fleeting visit as described by the Defendant.
[56] On the other hand, it seems equally improbable that the Defendant and KP had frequent sex in a small apartment with other family members at home, including a young boy who was almost always there. It is also noteworthy that there was not a single witness who testified that he or she ever saw KP come or go from the Defendant’s residence. No one seems to have had any inkling of their relationship, whether sexual or otherwise, and apparently no one ever saw them together. Neither KP’s best friend, in whom she eventually confided about her relationship with the Defendant, nor JM, with whom she continues to have a close mother-daughter relationship, nor KP’s sister with whom she has lived her entire life, nor MJ and her son who KP described as being like an aunt and brother to her, ever saw, heard, or knew that KP was even in contact with the Defendant.
[57] On December 31, 2006 and into the morning of January 1, 2007 – at the preliminary inquiry KP said that she was 15 years old, but in fact she would have been 14 at this time – KP apparently made a surprise New Year’s Eve visit to the Defendant’s Tobermory apartment. She testified that this was the one and only time she ever spent the entire night with him. She said that her mother had dropped her off with some friends at their old apartment building on Jane Street. KP somehow got stranded there because, as she stated incongruously, her mother went to church. It is unclear why church attendance prevented JM from picking her daughter up later, but that was how KP described the evening.
[58] KP said that she needed money, so she took herself over to see the Defendant at Tobermory. At the preliminary inquiry she testified that she arrived at Tobermory after midnight, while at trial she testified that she arrived around 9:00 p.m.
[59] In any case, KP related that she fell asleep on the Defendant’s couch watching TV. She said that at some point the Defendant woke her and told her to move to the bedroom where she would be more comfortable. What happened next is less than clear.
[60] In her initial statement to the police, KP said that she and the Defendant had sex on the couch that night, while at the preliminary inquiry she testified that all of the sex took place on the bed. At trial, she testified in chief that they had sex on the bed later that night when she “woke up to him and his erected penis”. In cross-examination, she again re-considered the issue and said that sex happened both on the couch and in the bed.
[61] According to KP, when she woke up the next morning she took a shower and left to go back to her friends where she had been earlier the previous evening. She testified that she stayed at her friends’ place for a week before going home. No explanation was offered by either KP or JM as to how she came to stay away from home for that length of time, or what JM might have thought her daughter was up to at the time, or, for that matter, what her friends that she ended up staying with for a full week might have thought or known about her whereabouts on New Year’s Eve.
[62] KP testified that one day in 2007, the Defendant picked her up in the cube-shaped white van at her home in Oakville and drove her around the city and suburbs. She stated that they had sex while on the road somewhere between Oakville and Toronto – it was unclear where and whether they parked. The Defendant denies that this happened, but agrees that that he drove a van of this description for work from 2008 until 2011. He says, however, that he always had his assistant with him. He said that he would pick up the van from work, where his assistant would join him, and return the van to work at the end of the day. He therefore only had access to this vehicle during the daytime and never alone.
[63] The Defendant’s denial raises a question as to how KP could describe the very type of cube van that the Defendant drove. The Defendant says that he once saw her as he drove by in the van, which is how she might have known what vehicle he used at work. This, however, seems a bit too coincidental; there is no evidence that either the Defendant’s work or his home was anywhere near Oakville or other places frequented by KP, and it seems almost miraculous that in an area as large and crowded as the GTA the Defendant would have just happened to have passed KP in his work vehicle.
[64] That said, it is, of course, unlikely that they would have had sex while driving along the highway, and it is certainly odd that KP did not specify that they stopped anywhere. This encounter supposedly took place in the middle of the work day, yet KP cannot recall what happened to the Defendant’s work assistant who usually accompanied him in the truck. Moreover, there is no suggestion that they were, even for a short time, in any secluded area. Counsel for the defense states with some cogency that it is again improbable that they would have had sex in a truck on the open road or in a publicly visible street or while parked in broad daylight.
(c) The final encounter
[65] The final encounter between KP and the Defendant took place at the Defendant’s apartment in October 2011, just before KP’s nineteenth birthday. KP came to the Defendant’s house looking for money. The Defendant says that he told her that he cannot give her any money, but that he could give her a leather jacket, which was one of a number of jackets that he had in the apartment that he was planning to sell to his co-workers. He testified that he invited KP into the apartment, and that she left with the jacket and he never saw her again.
[66] KP tells three different versions of what transpired at their final meeting. In her initial police interview she did not mention receiving a jacket at all. At the preliminary inquiry, she said that she went to his house, and that when he offered her a jacket he also put his legs over her and started rubbing against her. She described him then taking her into the washroom and performing oral sex on her. She said that she then left with the leather jacket.
[67] In her examination in chief at trial, she said that there was no sexual contact between them on the day of their final contact when she received a black leather jacket. But then for the first time she stated that this was a return visit in order to exchange a brown leather jacket he had previously given her. She said that she went into the Defendant’s bedroom where the jackets were all hanging, that she picked one out, and that she then left and that no sex took place that day.
[68] As in so many of the incidents described at this trial, it is difficult to know who or what to believe.
[69] From KP’s point of view, it seems unlikely that the Defendant would have given her a new jacket for no reason, since she consistently intimated that the basis of his friendship with her was a sexual one. From the Defendant’s point of view, it seems unlikely that KP would have just stopped over out of the blue to get some money, since he consistently intimated that there was no basis to their friendship and that he had cut off all contact with her years previously.
II. The approach to the evidence
[70] Where the Defendant testifies in his own defense, it must be kept in mind that, “A verdict of guilt must not be based on a choice between the accused’s evidence and the Crown’s evidence”: R v JW, 2014 ONCA 322, at para 24. quoting R v Vuradin, 2013 SCC 38, [2013] 2 SCR 639, at para 21. As Cory J. put it in R v W (D), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, at para 10. the trier of fact “need not firmly believe or disbelieve any witness or set of witnesses.” I must proceed in accordance with the instructions that Cory J., at para 11, states that a jury would properly have received here:
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.
[71] The evidence must be considered in its totality. Accordingly, “mere disbelief of the accused’s exculpatory account or a mere preference in favour of the complainant’s account does not equate with guilt”: R v. L (CO), 2010 ONSC 2755, at para 6. I cannot convict the Defendant if I am “unable to resolve the conflicting evidence and, accordingly, [am] left in a state of reasonable doubt”: R v Challice (1979), 1979 CanLII 2969 (ON CA), 45 CCC (2d) 546, at para 45 (Ont CA).
[72] Here, neither KP nor the Defendant were altogether credible. There were elements in each of their respective versions of the events that appear to be truthful, but there were also elements in the evidence of each of them that appeared to be exaggerated or false. The inconsistencies on behalf of both of these witnesses “demonstrate a carelessness with the truth about which the trier of fact should be concerned”: R v M(A) (2014), 2014 ONCA 769, 123 OR (3d) 536, at para 13 (Ont CA).
[73] In the first place, if the Defendant and KP had a relationship it existed as if in an isolated bubble, with no contact from the outside world. If I am to take KP’s version of events seriously from beginning to end, I would have to conclude that they had a sexual relationship for more than five years that entailed continuously getting together with each other, in a setting where they were entirely familiar with each other’s friends and family and were neighbours for a part of that time.
[74] In this context, it is difficult to believe that no one ever noticed them visiting each other, riding around together, or being in each other’s company. I do not consider it surprising that KP would have refrained from telling anyone about their sexual relationship, but there is an air of unreality about KP’s description of their continuous but invisible relationship. She describes years in which no one ever noticed the two of them together in public places or in their mutual neighbourhood. From 2003, when the Defendant broke up with MJ and ceased visiting her apartment, until 2011, when KP filed her police report making the current allegations, there is virtually no hint that anyone was aware that KP and the Defendant were even in contact.
[75] The only external evidence hinting at a friendship between KP and the Defendant was when, on one single occasion, JM noticed the Defendant calling KP’s cell phone. JM testified that she saw the Defendant’s name appear on KP’s call display, but that she accidentally erased the message that he left. She did, however, see a text message from him, and testified that she called the police so that they would warn him to stop calling her daughter.
[76] The Defendant also recalled this incident, but said that it arose after one of KP’s many calls to him, and not the other way around. He testified that after he broke up with MJ, and even after KP moved to Oakville, she would continue to call him and ask for money and other gifts. He said that he would sometimes give her money, and that he tried to talk to her and to help her out by advising her to behave properly and to stay in school.
[77] As with so much else in the evidentiary record before me, there is something that does not ring true about both versions of this story.
[78] At trial, JM made a point of saying that the Defendant had been calling KP, and that she was so concerned that she reported it to the police. KP also testified that it was the Defendant who called her. However, the police report, which is dated December 28, 2007, states that it was KP who called the Defendant. JM says that the police must have got it wrong, but offered no reason as to how or why they would have made a mistake.
[79] KP testified that her mother never liked the Defendant, and that JM was very upset when she saw that they were in contact. That history, combined with KP’s current allegations, might explain why both JM and KP were anxious to portray the Defendant in a slightly more predatory light than the police report would suggest.
[80] For his part, the Defendant testified that he did recall being contacted by the police. He explained that KP had phoned him at the time because it was the Christmas season and she wanted him to get her a present. He said that he told this to the police and assured them that he is simply a family friend. Apparently, nothing further came of the exchange.
[81] The Defendant testified that after being contacted by the police he got “fed up with her calling me”, and he changed his phone number. This, however, does not accord with other parts of his testimony, where he stated quite clearly that after he broke up with MJ in 2003 he did not hear from KP again until 2009. Of course, KP’s current allegations, and his knowledge that JM had warned him for years to stay away from her, might explain why he was anxious to portray their relationship as being more minimal than the police report would suggest.
[82] This kind of extreme minimization was a consistent theme in the Defendant’s testimony. According to the Defendant there was virtually never any opportunity for KP and him to be together. He describes having lived his entire adult life without ever being alone. Just as KP appears to have exaggerated her account of their frequent public contact, the Defendant appears to have exaggerated his account of their infrequent private contact. If I am to take the Defendant’s version of events seriously from beginning to end, I would have to conclude that for over five years he never had occasion to be on his own, even in his own home, without someone accompanying and watching his every move.
[83] The Defendant testified that in all of his various residences he always lived in a crowded household, that he worked all day and when not working he was consumed with child care or other family matters, that his work was never done solo, and that he never took a vehicle out except when accompanied by someone. The one time he admits to having been alone with KP in his apartment is when she came to pick up the black leather jacket, and he conceded that only after hearing KP testify in chief that that was one occasion on which there was no sex between them.
[84] I am convinced that something illicit happened between KP and the Defendant. He says that he had a relationship with her in which he often gave her wise counsel, but no one else seems to have known this. He says that he did not give her any money, or even see her at all, after 2003, but the police report shows that they were exchanging calls and she was asking for gifts in December 2007. Moreover, KP’s testimony, although often flawed and contradictory, reveals an intimate knowledge of his residences, the vehicles he drove, his family’s whereabouts and his family life that could not have been achieved with the minimal contact that the Defendant attributes to their relationship.
[85] At the same time, I am not convinced that whatever happened between KP and the Defendant happened in the way that KP said it did. She says that he had an avuncular relationship with her, but again no one seems to have known this. The beginning of this relationship, when the Defendant supposedly gave her a gift of pink shoes, appears to have been more of a romantic fantasy than reality.
[86] Moreover, KP describes sexual encounters with the Defendant in a formulaic manner that makes it hard to countenance that each incident transpired in the way that she says it did. She also relates that there was visible sexual activity in public or in other places where this kind of activity was altogether unlikely to have taken place. KP related an impressive number of incidents, but each of them was somehow flawed or questionable. Although I do not think that KP made up this entire litany of encounters, a long list of unconvincing stories does not in the aggregate equal an overall convincing story.
[87] As I said above, something happened here. I just don’t know what.
III. Disposition
[88] I am left with what can only be called a reasonable doubt about the evidence. I therefore find the Defendant not guilty of all charges.
Morgan J.
Date: May 6, 2015
COURT FILE NO.: 40000559-0000
DATE: 20150506
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
TG
Defendant
REASONS FOR JUDGMENT
E.M. Morgan J.
Released: May 6, 2015