ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. K.B., 2015 ONSC 565
COURT FILE NO.: CR-14-0029
DATE: 2014-01-26
B E T W E E N:
Her Majesty The Queen
Andrew Sadler, for the Crown
- and -
K.B.,
Gil Labine, for the Accused
Accused
HEARD: November 20 and 21, 2014,
at Thunder Bay, Ontario
Mr. Justice F. B. Fitzpatrick
WARNING: A NON PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA
Reasons For Judgment
[1] S.V. alleges she was sexually assaulted on one occasion by K.B.. According to the indictment, the sexual assault occurred between August 1 and August 30, 2006. At the time, S.V. was fourteen years old and Mr. K.B. was in his mid-thirties.
[2] Mr. K.B. denies that any sexual assault occurred.
[3] At the beginning of trial, there was an order excluding witnesses. In addition to the testimony of the complainant and the accused, the Court heard the evidence of two other witnesses: one called by the Crown, S.V’s mother; and one for the defence, Mr. K.B.’s sister.
[4] On consent, S.V. was permitted to testify with the use of a screen pursuant to s. 486.2(2) of the Criminal Code. A mid-trial motion by the Crown to amend the indictment was denied. Written reasons for the denial were provided to the parties on December 9, 2014.
[5] There are several facts that are not in dispute.
[6] In August 2006, S.V. was fourteen years old. Mr. K.B. was in his mid-thirties. S.V. is the oldest of four children. At the time of the incident, S.V.’s mother was pregnant with S.V’s youngest sister, who was born in December 2006. Mr. K.B. was a long time friend of S.V.’s family. Mr. K.B. was treated like an uncle by S.V. and her siblings. He worked at a mine with S.V.’s father, Mr. V. The mine site was remote to settlement areas, and the employer required its workers to stay on site following their shifts. Accordingly, at the relevant time, Mr. K.B. and Mr. V. worked one week on and one week off.
[7] Mr. K.B. would regularly visit the V. household on weekends. In the winter, he would watch hockey with S.V.’s parents, drink occasionally and sometimes spend the night. He would also come over in the summer for barbeques and to socialize with S.V.’s parents. In the main, the socializing of the adults would occur in the basement of the V. house.
[8] It is disputed that the sexual assault and threats in question occurred.
[9] In my view, the main Crown evidence dealing with the issue in dispute came from the complainant. However, her mother testified as well. I will deal first with the evidence of S.V’s mother. She testified as to the majority of the facts, which I have noted above as not being in dispute. She also said that S.V. became distant in her teen years, although she could not specify exactly when. The atmosphere in the V. household was not pleasant according to her. S.V. spent a great deal of time in her room, eating alone and watching T.V. by herself or with her friends. She confirmed that S.V. left home at sixteen with a police escort.
[10] I will now summarize the evidence of S.V. According to S.V., the incident occurred in the middle of a summer night in 2006. At various times in her testimony she said she could not remember the specific time or date. However, in chief and then later in cross-examination she testified that she thought the event occurred in August. She confirmed this time frame by referencing it with other events, such as her recollection she was not in school at the time, her mother was pregnant with her youngest sister, and her brothers were involved with pre-hockey summer skating at the time. She agreed in cross-examination that it could not have happened at any other time other than August 2006.
[11] She had been in her room watching movies. Her room was on the main floor of the V. house. Her parents’ room and her brothers’ room were beside hers. Mr. K.B. had come over for a barbeque. Later in the evening, Mr. K.B. was drinking with her parents in the basement. S.V. fell asleep and awoke to a “blue screen” on her T.V. She got up to go to the washroom. She noticed her parents’ door was closed.
[12] When she came out of the washroom, she claims she saw Mr. K.B. in the kitchen upstairs. There were many beer bottles and “munchies” strewn about the kitchen.
[13] S.V. went back to her bedroom. She heard Mr. K.B. go in to the washroom. She heard the toilet flush. Mr. K.B. then appeared in her room. When he walked in, he left her door open.
[14] He began to make small talk. He sat on her right side facing the door to the hallway. He told her she was pretty like her mother and began touching her hair. His hands began working down her left arm and he touched her thigh. She could smell alcohol on his breath.
[15] She testified Mr. K.B. swung her on her back and put his hand over her mouth. He told her to be quiet. She recalls him reaching his other hand for his belt so he could take off his pants. He had a long shirt on. She was clear he was wearing pants. She was wearing a tee shirt and shorts. He took her underwear off. She resisted but did not cry out.
[16] She testified Mr. K.B. pinned her arms. He put his left elbow on her right shoulder and his right hand on her left wrist. He pulled down his pants to have “access” to his penis. He inserted his penis in her vagina. She was a virgin.
[17] She testified it did not last very long but it felt like hours to her. He told her not to tell anybody or he would hurt her.
[18] She did not tell anyone about the incident the next day. She lay in her room all day.
[19] She did not tell anyone about this incident. She left home in January 2009. She became pregnant with her first child about a year later.
[20] In September 2013, she told someone for the first time. It was her mother and Mr. K.B..
[21] Her mother and Mr. K.B. were parked in his car at Mr. K.B.’s home. S.V. and her mother had a dispute. S.V. swore at her mother. She then asked “so why don’t you ask K.B. about how I lost my virginity”.
[22] S.V. then proceeded to tell Mr. V. about the incident. He had separated from her mother at the time. Also, S.V. was in a relationship at the time and told her partner as well. She then told the police that same day.
[23] When being cross-examined, S.V. claimed she did not recall what Mr. K.B.’s counsel looked liked despite being previously cross-examined by him in March 2014. She admitted she has problems remembering lately. She was pregnant at the time and attributed her lack of recall to that. She said her memory was assisted by watching video, but she admitted without those aids she couldn’t remember much.
[24] When asked about why she didn’t cry out or complain when Mr. K.B. first came in to her room she answered that “she was a child”.
[25] She confirmed Mr. K.B. was wearing pants when the assault allegedly took place.
[26] Mr. K.B. testified in his own defence. He had an alibi for his whereabouts in August 2006. He said he was never at the V. house in that month. He was able to recall this with the assistance of employment records he obtained from his former employer. The mine closed in 2008.
[27] In any event, the records indicate Mr. K.B. worked August 10 to 16, and August 24 to 30. These records also indicate Mr. K.B. took a week long vacation early in August 2006. He specifically recalls the vacation. He went camping with 8 other people. It was at White Otter Lake. It was the one and only time he has been at this lake.
[28] One of the people on the trip was a work friend A.W.. Later in the month, Mr. K.B. was ill. This illness helped him recall the camping trip. This is because Mr. K.B. experienced flu-like symptoms. He was teased by Mr. A.W. that in fact Mr. K.B. was experiencing “beaver fever”. Beaver fever comes from ingesting contaminated water. Mr. A.W. said this was because Mr. K.B. had fallen in the White Otter Lake on many occasions while water skiing earlier that month.
[29] At the end of the August 10 to August 16 shift week, Mr. K.B. began to experience flu-like symptoms. These were severe enough that Mr. K.B. took the final day of the shift off. He did not consult the company nurse but instead got advice from his sister, who was a Registered Nurse. She testified at the trial and confirmed that she had spoken to her brother in late August 2006 about his experiencing flu-like symptoms.
[30] For the week of August 17 to 23, Mr. K.B. stayed at home. He testified he did not visit the V. home during this period. When he returned to work, the work records indicate he took the first part of the first day back as sick time. This reinforced for Mr. K.B. his recollection that he was quite ill during this period. He wanted to take another sick day but he was required at work and was convinced to come in to work.
[31] He worked from August 24 to August 30, and got off work the morning of August 31.
[32] Mr. K.B. was emphatic during his testimony about a number of issues. First, that during the summer he does not wear long pants. He always wears shorts. He even wears shorts in the winter.
[33] Second, he did not attend at the V. household in August 2006.
[34] Third, he never sexually assaulted S.V., nor touched her inappropriately, or was ever alone with her in her bedroom.
[35] Fourth, he never threatened S.V.
[36] In cross-examination, he was asked about other times he could have visited the V. household in the summer of 2006. He was off work June 7 to July 14, 2006. He testified he was in Winnipeg at that time. He was also off work from July 19 to July 25. He denied he went to the V. household during that period. He testified he went out on his boat a lot as was his practice in the summer. He admitted there were occasions he was at the V. home in the summer, but not in the summer of 2006.
[37] As noted above, Mr. K.B.’s sister S.M. testified for the defence. She confirmed her giving her brother advice about flu in August 2006. She recalls speaking to him and he sounded “horrible”. She also confirmed he always wears shorts in the summer and often in the winter.
The Law
[38] In this case, issues of credibility are clearly paramount. In argument, both counsel referred to only one decision, that of the Supreme Court of Canada in W.(D.) v. R.,1991 CanLII 93 (SCC), [1991] 1, S.C.R. 742, 63 C.C.C. (3d) 397. In assessing the evidence in this case I have considered the instructions of the Supreme Court of Canada in W.(D.). In W.(D.) the Court found as follows at paras. 10 and 11:
The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Secondly, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole: see R. v. Challice (1979), 1979 CanLII 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.); approved by R. v. Morin, supra, at p. 207.
Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Thirdly, 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.
[39] Regarding the first step in the W.(D.) formula, I must not consider the accused’s version of events in isolation, as if the Crown has led no evidence. The evidence that supports the accused must be assessed in the context of all the evidence.
[40] The second step should be approached as set out by Binnie J., speaking for a unanimous Court, in R. v. S.(J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152, at paras. 10 – 13:
The precise formulation of the W.(D.) questions has been criticized …
As to the second question, some jurors may wonder how, if they believe none of the evidence of the accused, such rejected evidence may nevertheless of itself raise a reasonable doubt. Of course, some elements of the evidence of an accused may raise a reasonable doubt, even though the bulk of it is rejected. Equally, the jury may simply conclude that they do not know whether to believe the accused’s testimony or not. In either circumstance the accused is entitled to an acquittal.
… In light of these possible sources of difficulty, Wood J.A. in H. (C.W.) suggested in additional instructions:
I would add one more instruction in such cases, which logically ought to be second in the order, namely: “If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit”. [p.155]
In short, the W.(D.) questions should not have attributed to them a level of sanctity or immutable perfection that their author never claimed for them.
[41] W.(D.) makes it clear that a criminal trial is not a credibility contest where the trier of fact must choose whether to believe one side or the other. At paras. 9 in W.(D.), Cory J. stated:
It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown’s evidence. Putting this either/or proposition to the jury excludes the third alternative; namely, that the jury without believing the accused, after considering the accused’s evidence in the context of the evidence as a whole, may still have a reasonable doubt as to his guilt.
[42] The third step of the W.(D.) analysis is required in the event the totality of the evidence for the defence is not believed, which then leaves the evidence to be assessed on whether or not the Crown has proved its case beyond a reasonable doubt.
[43] In this case, I believe the testimony of the accused. In my view, the first branch of the W.(D.) analyis is engaged in this matter.
[44] The case against Mr. K.B. was framed as occuring in August 2006. The complainant testified that the event occured in that month. She testified at one point it could not have occured at any other time. Mr. K.B. has provided evidence that convinced me he was not in the presence of S.V. in the month of August 2006. I accept his explanations that he was camping and then ill when he was not otherwise working in August 2006. I accept his evidence that he was not in S.V’s presence in August 2006.
[45] I also accept his evidence that he was not in S.V.’s presence in July 2006. He was working and visiting places other than Thunder Bay in that month.
[46] I accept Mr. K.B.’s evidence that he never wears long pants in the summer. The evidence of S.V. was that Mr. K.B. was wearing pants at the time of the alleged assault. This is a discrepancy in the evidence that I have resolved in favour of the accused.
[47] Mr. K.B. was not shaken in cross-examination.
[48] There were certain aspects of the testimony of the complainant that caused me concern. First was the curious admission that she claimed not to remember counsel for Mr. K.B. despite having seen him in a fairly significant circumstance, being cross- examined by him, in a preliminary inquiry only eight months ago. She admitted she had difficulty remembering things recently. Yet she was able to very carefully recount an event, no doubt significant and memorable in any person’s life, that occurred eight years ago.
[49] Secondly, in cross-examination, she testified that in her view she “was a child” when the event occured. Clearly she was a minor at the time. But she was a teenager. In my view, there can be a difference between a fourteen year old and a person someone would describe as a “child”, in experience, in ability to recall and presence of mind with regard to matters involving sexuality. Her characterization led me to disbelieve her explanation about why she did not cry out or make any noise when she allegedly found Mr. K.B. in her bedroom. At fourteen, she also claimed to be able to identify the smell of alcohol on Mr. K.B.’s breath. If she had such experience, in my view, she was more worldly than one would describe a “child”. These aspects of her testimony led me to be concerned that she was telling the truth about the incident as alleged.
[50] Also the context of when she determined to reveal the alleged event led me to discount her evidence. Clearly she was upset with her mother. Her parents had separated. She did not accept Mr. K.B. as being a significant person in her mother’s life. I accept the argument of the defence that this dislike should be taken in to account when assessing her credibility and reliability.
[51] I am left with a reasonable doubt based on the totality of the evidence as to whether or not Mr. K.B. did commit the sexual assault and did threaten the complainant as alleged. I am not satisfied that the Crown has proven the case against Mr. K.B. beyond a reasonable doubt. Accordingly I find Mr. K.B. not guilty on both counts.
The Hon. Mr. Justice F.B. Fitzpatrick
Released: January 26, 2015
CITATION: R. v. K.B., 2015 ONSC 565
COURT FILE NO.: CR-14-0029
DATE: 2015-01-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
- and -
K.B.,
Accused
REASONS FOR JUDGMENT
Fitzpatrick J.
Released: January 26, 2015
/mls