ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 0418/13
DATE: 2015/06/10
BETWEEN:
HER MAJESTY THE QUEEN
– and –
B. B.
J. Gibson, for the Crown
M. Murphy, for the Accused
HEARD: April 7-10, and 13, 2015
publication restriction notice
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the complainant may not be published, broadcasted, or transmitted in any manner.
GARTON J.:
[1] The accused, Mr. B., age 58, is charged with sexual assault and sexual interference with respect to his former girlfriend’s daughter, L.G. (“the complainant” or “L.G.”), age 14. It is alleged that the accused touched the complainant’s vaginal area, both over and under her pyjamas, over an eighteen-month period commencing in the summer of 2008, when she was seven years old, and ending in the fall of 2009, when she was eight years old. The touching is alleged to have taken place when Mr. B., while sitting on the side of the complainant’s bed, read bedtime stories to her. The complainant disclosed her allegations to her mother in November 2012, when she was almost 12 years old.
[2] The trial proceeded without a jury. The Crown’s case consisted of the evidence of the complainant and her mother, S. P. (“Ms. P.”).
[3] Mr. B. testified and acknowledged reading stories to the complainant while seated on the edge of her bed. However, he denied any inappropriate touching.
[4] The central issue is whether the Crown has established beyond a reasonable doubt that the alleged acts occurred. A finding in this regard depends in large part on the credibility and reliability of the complainant’s and Mr. B.’s testimony. The principles in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 apply.
THE EVIDENCE
Background
[5] Mr. B. was married for 24 years and has three children, who are now 28, 26 and 19 years old. He and his wife separated around 2001 and were later divorced. His wife continued to live in Toronto until 2003, when the matrimonial home was sold and she moved to Guelph.
[6] Mr. B. teaches drums and percussion instruments at two private studios, and operates a retail business where he sells those instruments. He also plays in performance bands. In 2010, he started an outdoor adventure company, which involves taking small family groups on kayaking and tubing excursions.
[7] Ms. P. is 54 years old and has two children – a son, B.P., who was born on […], 1990, and L.G., the complainant, who was born on […], 2000. The children have different fathers. Ms. P. and L.G.’s father separated when L.G. was about three years old. The separation was acrimonious and the family court proceedings extended over a number of years. Issues regarding child support and access were not settled until December 2012, or about two weeks after L.G.’s disclosure to her mother that Mr. B. had sexually assaulted her.
[8] Ms. P. and Mr. B. first met when she started taking drum lessons from him about 15 years ago. They became friends but were not romantically involved at that time. They were out of touch with each other for about five years, at which point their renewed friendship turned into a boyfriend/girlfriend relationship. Mr. B. was still married at the time but the marriage, according to Mr. B., had been in some difficulty for a number of years. He and his wife eventually separated.
[9] After the separation, Mr. B. lived with a friend for a month, and then with Ms. P. for a brief period before moving in with two friends at an address on B. Court. Mr. B. testified that although he was “officially” living at that address, he stayed overnight at Ms. P.’s home two, four, or sometimes five times a week. However, he was never there continuously or for “weeks on end.”
[10] In February 2006, Ms. P. moved to an apartment in a house on Eaton Avenue. Mr. B. stayed overnight at that address with about the same frequency that he had at her prior address. At some point, he rented a nearby garage, where he stored his motorcycle and kayaks. Eventually, Ms. P. obtained a parking permit for him, using her address and his licence plate, so that he could park his car on the street without being ticketed.
[11] In October 2010, Mr. B. was charged with sexually assaulting one of his music students. His bail conditions required him to live with his surety and prohibited him from being in the company of a child under the age of 16 unless another adult was present. Ms. P. and L.G. were aware of the charge and the bail conditions.
[12] On September 21, 2011, Mr. B. was acquitted of the sexual assault charge and therefore no longer bound by any bail conditions. He began to spend more time with Ms. P. This caused tension between himself and L.G., who felt that he posed a threat to the close relationship that she had with her mother.
[13] On the evening of Wednesday, November 28, 2012, L.G. disclosed the alleged offences to Ms. P., who immediately called Mr. B. He denied the allegations and then sent her an email in which he referred to L.G.’s “outright lies and elaborate fabrications in the past.” He attributed this problematic behaviour, in part, to the disharmony between her parents and their failure to impose any discipline on her.
[14] On Friday, November 30, 2012, Mr. B. sent Ms. P. a second email in which he ended their relationship.
[15] Two-and-a-half weeks after L.G.’s disclosure, Ms. P. settled the family court proceedings with L.G.’s father. Sometime thereafter, she contacted the Children’s Aid Society through her church. The police were subsequently notified of the allegations. L.G. was interviewed by the police on December 21, 2012. Mr. B. was subsequently arrested on the charges before the court.
(continues exactly as in the source through paragraph [194] and the concluding endorsement)
GARTON J.
Released: June 10, 2015
COURT FILE NO.: 0418/13
DATE: 2015/06/10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
B. B.
REASONS FOR JUDGMENT
GARTON J.
Released: June 10, 2015