R. v. JPC, 2016 ONSC 2124

Court File and Parties

CITATION: R. v. JPC, 2016 ONSC 2124

COURT FILE NO.: Court File No. CR-15-10000125

DATE: 20160331

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Regina v. JPC

BEFORE: E.M. Morgan J.

COUNSEL: Adrienne Samberg, for the Crown

Paul Mergler, for the Defendant

HEARD: March 8-11, 2016

REASONS FOR JUDGMENT

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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.

[1] The Defendant is a 44-year old man, born […], 1971. The Complainant is a 40-year old man, born […], 1975. They are first cousins. The Defendant sexually assaulted the Complainant many times when they were much younger. In his testimony at trial, the Defendant said so himself.

[2] According to both the Complainant and the Defendant, the sexual activity occurred for the most part during holidays and family get-togethers, and spanned a 2 to 3-year period. Although there is disagreement as to whether the abusive conduct went beyond the Defendant forcing the Complainant to fondle him to include having the Complainant perform oral sex and engage in other sexual activity, the Defendant does not deny that he imposed sex acts on his younger cousin, the Complainant.

[3] The question, therefore, is not whether the Defendant sexually assaulted the Complainant. The question is: when? That is, did any of the acts of sexual assault take place when the Defendant was over the age of 18?

[4] The Crown alleges that the incidents in issue took place between 1989 and 1992. At that time, the Young Offenders Act, RSC 1985, c. Y-1 (“YOA”) was in force. Section 5(1) of the YOA provided that a youth court constituted thereunder “has exclusive jurisdiction in respect of any offence alleged to have been committed by a person while he was a young person and any such person shall be dealt with as provided in this Act.” Section 2(1) of the YOA defined a “young person” as “a person who is or, in the absence of evidence to the contrary, appears to be twelve years of age or more, but under eighteen years of age”.

[5] As this is a case of historical wrongdoing by a Defendant now in his forties, the jurisdiction of this court cannot be based on the Defendant’s appearance; rather, it must be based on a finding that the Defendant was, in fact, 18 years old at the time of his impugned acts. If the Defendant was not yet 18 years old, this court has no jurisdiction in respect of those offenses and the Defendant should have been tried in a properly constituted youth court.

[6] Counsel for the Crown concedes that of the several incidents that were described in detail by the Complainant, only the last one could possibly have taken place when the Defendant was 18 or older. She submits that the other, earlier incidents related by the Complainant in his testimony were necessary for narrative purposes, but that they doubtless took place when the Defendant was himself a young person rather than an adult as defined by the relevant legislation.

[7] Accordingly, this judgment will focus on the last-in-time incident narrated by the Complainant. It will also examine the first incident related by the Complainant, since that may assist in establishing the time line. Although the trial heard evidence from the Complainant of a number of other specific incidents of sexual activity that occurred in between those two times, it is not necessary to get into the details of those incidents. They reveal little about the important question regarding the age of the Defendant at the time.

[8] Likewise, the trial record contains evidence relating to letters written by the Complainant to the Defendant in recent years, and conversations between the Complainant and the Defendant and, separately, between the Complainant and the Defendant’s spouse in recent years. Those conversations and correspondence show that the Complainant, among other things, demanded money from the Defendant in return for his silence. That evidence will only be reviewed in these reasons insofar as it sheds any light on the timing of the incidents in issue.

[9] This correspondence and the ensuing conversations could have been more broadly relevant if the credibility of the Complainant’s allegations that he was sexually assaulted was in issue. That certainly could have been the case; indeed, the Complainant himself related that his own parents did not believe him when he first told them of the Defendant’s abusive conduct – as he put it in his testimony, “I know, because I’m a liar. I’ve lied, cheated, stealed all my life.” However, on the fundamental question of whether the sexual abuse actually took place, the Complainant’s credibility is not in issue. The abuse happened, and the Complainant has suffered enormously as a result.

[10] The last incident took place on Halloween. The Complainant testified that he had just turned 16, which, if accurate, would date this incident at October 31, 1991. On that date, the Defendant would have been two months past his 20th birthday.

[11] The Complainant indicated that he recalled starting the evening with plans to go to a haunted house and to trick-or-treat for candy. He states that he and his older brother, together with the Defendant and his own brother, stopped at the home of E.B., who was at the time the Defendant’s girlfriend. The Complainant testified that he recalls that he and the two brothers did not go inside the house but instead sat in the car waiting for the Defendant, who got out of the car and went up to the front door to speak with E.B.. He can recall sitting in the car and watching the Defendant speak with E.B., but indicated in his examination-in-chief, and reconfirmed in cross-examination, that he never got out of the car to speak with her himself. He said that after a short conversation with E.B., the Defendant returned to the car and the four boys drove off without her.

[12] According to the Complainant’s recollection, they all returned to the Defendant’s house. The two older boys then stayed at the house, while the Complainant and the Defendant took a soccer ball to a nearby school yard to play. As the Complainant related it, it was after 7:00 p.m. and was getting dark. He said that the Defendant took out a flask filled with amber rum – the favorite drink at the Defendant’s house – and offered it to him on the way to the school.

[13] At the school they played soccer for a bit until it got too dark. The Complainant finished the flask of rum, and then the Defendant started fondling his genitals and buttocks with his hand, trying to get the Complainant excited. He then got the Complainant to stroke the Defendant’s own penis. According to the Complainant, the Defendant pulled down Complainant’s pants and tried to have anal intercourse, but he resisted and the Defendant stopped. The Complainant testified that the Defendant then turned the Complainant around and guided his head toward his penis for the Complainant to perform oral sex. The Complainant’s recollections are a bit clouded since he was drinking rum that night, but he said that he could recall that the sexual encounter happened outdoors near the school building.

[14] E.B., who later became the Defendant’s wife and is now separated from him, also testified at trial. She had a very specific recollection of the Halloween visit to her house by the Complainant, the Defendant, and their respective brothers. She indicated that she was certain that it was October 1992. That would mean that the Defendant was 21 years old at the time. She testified that she first met the Defendant in June 1991, and that he had moved to California shortly after that and had stayed there a number of months. According to E.B., the Halloween visit to her house was the following year, after the Defendant’s return from California. She said that she distinctly remembers that this was the first time that she had ever met any of his family members.

[15] The way that E.B. recalls the evening is substantially different than the story related by the Complainant. As E.B. relates it, the Complainant and the others did not stay in the car while the Defendant came up to speak with her at the door of the house. Rather, all of them came into the house and stayed there for the better part of an hour. E.B. specifically recalls the Complainant coming into her home and going down to the basement with her and the other visitors. She indicated that this was the first time she was introduced to the Complainant, and recalls that her parents had gone out and that she had to stay home to tend to her younger sister.

[16] The differences between the two accounts of that Halloween night are so substantial that it casts doubt on how and when the entire incident transpired. While the Complainant’s narration of the sex acts in the schoolyard is vivid, and I do not doubt that something along the lines that he describes occurred at some time, it seems likely that he is confusing the schoolyard incident with another incident.

[17] The Complainant’s mind was clouded by alcohol on the night in question. In fact, he still seems to have only spotty memories of the event. During his examination-in-chief he could not recall whether he was in school at all at that time, while under cross-examination he seemed to recall that he had started attending a private school in Montreal that year. Likewise, at the preliminary inquiry he could not recall whether the sexual activity took place at the side or the back of the school building, while at trial he seemed to recall that it happened at the back or on a lawn.

[18] Moreover, in his examination-in-chief the Complainant indicated that he had finished the entire flask of rum in order to make himself relax, while at the preliminary inquiry he testified that he was not intoxicated that night. In cross-examination he was pressed about his inability to recall when he was drinking and when he was not. He replied impatiently, but honestly, saying: “I’m an alcoholic, sir.” I do not fault the Complainant for his struggle with alcohol – he traces much of his problem to the years of sexual abuse he suffered as a youngster – but the implication of this response is that his memory is less than reliable.

[19] In contrast to the Complainant, E.B. appears to me to have an excellent memory. She is articulate, and relates her testimony in a rational and dispassionate way. She was entirely truthful about her mixed feelings about learning that the man she once loved admits to having sexually abused his young cousin many years ago, and that she and her children will have to live with this knowledge. Her recollection of events during the first years of her relationship with the Defendant is detailed and logical, and I find her to be an entirely reliable and credible witness. Her testimony about the Complainant’s visit to her house on October 31, 1992 is, as indicated, different enough from the Complainant’s version of events to cast serious doubt on the accuracy of the Complainant’s recollection.

[20] E.B. does recall that the visit to her house occurred on Halloween, but she does not recall that the Defendant and Complainant and their brothers were going trick-or-treating or anything like that. Indeed, it seems rather unlikely that at the ages of 17 and 21, as they would have been in 1992, the Complainant and the Defendant were going out to trick-or-treat for candy. E.B. specifically recalls that she did not leave the house with them because she had to give out candy with her own younger sister. I have no reason to doubt that a visit by the Complainant to E.B.’s house occurred when E.B. said it did in 1992. But it seems apparent that the sexual encounter outside the school took place at some other, earlier time. In general, the Complainant is confused about the timeline of events in a way that E.B. is not.

[21] Since this case is all about when the sexual incidents occurred, and not whether they occurred, this confusion about timing is important. The incident outside the school was described by the Complainant as being the very last time the Defendant performed a sexual act with him.

[22] It is therefore instructive to look at the very first time that the sexual abuse occurred. The Complainant was clear that all of the abuse took place over a 2 to 3-year period. Accordingly, if the starting point can be identified, that will help identify the age of the Defendant at the time of the last incident.

[23] The first incident took place at the Complainant’s and Defendant’s mutual grandfather’s house in the Hyde Park area of Toronto. The Complainant’s recollection of this event is much more detailed than any of the other events, and it is obvious that this was traumatic for him and has stayed emblazed in his mind. He can recall that it took place in the bedroom on the top floor of the house, he remembers the stained glass windows in the house, he can recall the colour of the comforter on the bed, he described how there were some posts missing from the railing along the staircase, etc. The Complainant testified that the incident began as a wrestling match with the Defendant, and ended up with the Defendant removing his pants and eventually with the Complainant fondling and masturbating the Defendant.

[24] Again, there is no doubt that this incident occurred. The Defendant remembered it as well. The only question is when did it occur. In a 2005 letter that he wrote to the Defendant, the Complainant spoke of the sexual abuse that started when he was 12 years old. Moreover, in a 2013 statement he gave to the police in Quebec (where he was awaiting sentencing on an outstanding criminal charge and receiving treatment in a residential alcohol and substance abuse centre), and that he confirmed in cross-examination at trial, the Complainant said that the first incident occurred in the summer of 1987 when he was “vers douze” (“approaching twelve”, or “around twelve”).

[25] I note that the Complainant’s memory of his age suddenly changed at trial, where in his testimony-in-chief he indicated that he thought the abuse by the Defendant began when he was “13 or 14”. This, however, is not a credible statement. It contradicts the more precise figure that he gave the Quebec police and that he put in writing to the Defendant. Furthermore, it goes against other testimony by the Complainant where he said that for his 12th birthday he got a drum set as a gift and that the Defendant visited him for his birthday and groped him on that occasion.

[26] Since the Defendant was born 3 years and 11 months earlier than the Complainant, he would have been 16 years old when the Complainant turned 12. If, as described by the Complainant, the abuse began in the summer of 1987, when he was approaching his 12th birthday, and continued for 2-3 years, the last of the incidents could have occurred just before or just after the Defendant’s 18th birthday. The Defendant’s birthday is in the late part of the summer, but we do not know whether the Complainant, in pinpointing the start of the abuse as the summer of 1987, is referring to the early summer or the end of summer. In addition, we do not know whether the end of the abuse came closer to two years or closer to three years after it began. Again, that variation could put the final incident either before or after the Defendant turned 18.

[27] The Complainant’s description of his age therefore leaves a crucial ambiguity. As indicated, it is not surprising that his memory is clouded. He suffered the trauma of sexual abuse in his childhood and is a lifelong alcoholic. He was candid in saying that he was drinking even at a young age when the abuse took place.

[28] As another example of faulty memory, the Complainant testified that sometime around 2008 he told his parents that the Defendant had abused him as a teenager. In cross-examination he was shown his criminal record, and looking at that he changed his mind and stated that he had told his parents about the abuse in 2001. The Complainant’s father gave his own statement to the police, and indicated that the Complainant had in fact disclosed the abuse to him in 2004-05. That date, which is likely accurate as it comes independently from the father and roughly coincides with when the Complainant started writing to the Defendant and voicing his feelings about his childhood abuse, figured nowhere in the Complainant’s memory.

[29] While I do not think the Complainant is intentionally fabricating anything, I find his memory to be clouded and unreliable on certain points of detail. In R v REM, 2008 SCC 51, [2008] 3 SCR 3, the Supreme Court indicated that in assessing credibility and reliability, I can accept some and reject other of the Complainant’s evidence. When it comes to the Complainant’s testimony, I certainly accept that he was sexually assaulted by the Defendant at a young age. However, I do not accept that this began when he was 13 or 14; rather, the most likely time for the sexual abuse having begun is the summer just before the Complainant turned 12. This would make the Defendant approximately 16 years old at the time, depending on whether it was the early or late part of the summer. It would also make the Defendant approximately 18 years old, plus or minus a number of months, at the time of the last sexual incident.

[30] In his final submissions, counsel for the defense contended that the Crown must prove beyond a reasonable doubt that the Defendant was over 18 years old at the time of the commission of the offenses. I did not hear counsel for the Crown take issue with that proposition.

[31] In a trial like this, where the Defendant has testified, I would ordinarily say 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. I would also be relying on the judgment of the Supreme Court of Canada in R v W(D), 1991 93 (SCC), [1991] 1 SCR 742, at para 10, where Cory J. stated that the trier of fact “need not firmly believe or disbelieve any witness or set of witnesses.” It is certainly the case that where age is an element of an offense – e.g. section 159 of the Criminal Code – it must, like all elements of an offense, be proved beyond a reasonable doubt: R v F (J), [2002] O.J. No. 4434 (Ont CA); R v Vaillancourt, 1987 2 (SCC), [1987] 2 SCR 636.

[32] Here, however, I am faced with a different kind of question.

[33] In a constitutionally valid exercise of its criminal law powers, Parliament conferred the jurisdiction to try offenses committed by young persons – i.e. persons under 18 – in a youth court, and removed this jurisdiction from Superior Court: Reference re Young Offenders Act (PEI), 1991 11713 (SCC), [1991] 1 SCR 252. The substantive definition of offenses does not change for a young person accused of a crime, but the court changes. Thus, whether the Defendant can be tried in Superior Court or must be tried in a youth court is a question of jurisdiction: R v A(EA), [1987] OJ No 674 (Ont CA). The age of the Defendant at the time of the offense is a jurisdictional fact; it is not an element of the offense: R v L (1984), 1984 3550 (ON CJ), 17 CCC (3d) 335 (Ont Prov Ct), at paras 8, 12; R v J (CK) (1995), 1995 NSCA 45, 139 NSR (2d) 166 (NSCA), at para 9; R v R (1985), 1985 655 (BC CA), 23 CCC (3d) 11 (BCCA), at para 7.

[34] The Supreme Court of Canada pointed out in Balcombe v The Queen, 1954 75 (SCC), [1954] SCR 303, 305, that, “The question of jurisdiction is a question of law…even if, to make its determination, consideration of the evidence is needed.” As an evidentiary point going to a question of law, and not going to “the very heart of the moral culpability” of the Defendant, his age at the time of the offense is to be determined on the balance of probabilities, not beyond a reasonable doubt: R v Finta, 1994 129 (SCC), [1994] 1 SCR 701, at para 68.

[35] Employing the balance of probabilities standard, this case is a close one. The Complainant’s evidence with respect to his age at the relevant time is confused and ambiguous. E.B.’s evidence points to the fact that the Complainant is inaccurate on his timing of the last incident, and that he generally cannot be considered reliable on issues of timing.

[36] I conclude that it is the more than likely the case that the sexual assaults commenced during the summer of 1987 before the Complainant’s 12th birthday on September 20th. That summer, the Defendant was either 15 or 16 years old, depending on whether the first incident occurred early in the summer or after the Defendant’s own birthday on August 25th. Since the Complainant says that the sexual assaults continued for 2 to 3 years, they may have ended just before the Defendant’s 18th birthday on August 25, 1989, or they may have continued for a few months past his 18th birthday. Without more precise and reliable evidence on this point, it is impossible for me to conclude that the Defendant was over 18 at the time of the last sexual incident with the Complainant. I would only be guessing between two equally likely choices.

[37] I therefore cannot make the factual determination necessary to conclude that the offenses with which the Defendant is charged are within the jurisdiction of this court. The Crown has not proved on a balance of probabilities – let alone beyond a reasonable doubt, as the defense would have it – that the Defendant was over 18 years old at the time of the offenses outlined in the indictment. It is at least equally likely that he was a young person, as defined in section 2(1) of the YOA, who must be tried by a youth court.

[38] In R v A(EA), [1987] O.J. No. 674, the Ontario Court of Appeal reviewed a sexual assault case where, much like the one here, it was a matter of conjecture as to whether or not the offense took place just before or just after the accused’s 18th birthday. Dubin JA (as he then was), affirmed the decision of the trial judge that the age of the accused raised a jurisdictional issue. He held at para 11: “On the premise that the appellant was in fact guilty of sexually assaulting the victim, and, in the absence of proof as to the exact time of the offence, which is normally not a material averment”, the case must proceed in youth court rather than in adult court.

[39] Accordingly, this court is without jurisdiction to try this case. The charges against the Defendant are dismissed.

Morgan J.

Date: March 31, 2016