R. v. T.M., 2016 ONSC 2969

COURT FILE NO.: 7530-14

DATE: 2016-05-10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

T.M.

D. Kirk, Counsel for the Crown

D. Orazietti, Counsel for T.M.

HEARD: August 10, 11, 12, 2015,

January 25, 26, 27 and March 24, 2016

BAN ON PUBLICATION PURSUANT TO SECTION 486.4

OF THE CRIMINAL CODE OF CANADA

VARPIO J.

REASONS for judgement

OVERVIEW

[1] The accused stands trial for the alleged sexual assault and sexual interference of M.P. in 2004. It is agreed by all parties that the accused and M.P. are cousins, that they belonged to a drum group known as “R[…]” and that they attended a pow-wow in S[…] at the relevant time. A sexual incident occurred in a hotel room prior to the pow-wow. M.P. suggests that the sexual incident was not consensual whereas the accused submits not only that the activity was consensual, but also that he was not in a position of trust or authority towards his cousin.

[2] The accused also stands trial for allegedly sexually assaulting A.A. in the summer of 1999. A.A. was moving in the summer of 1999 and called her friend, V.P., to help her move. V.P. arrived with the accused and the three people moved A.A.’s possessions to A.A.’s mother’s residence. Having completed the job, the three decided to go to Tower Lake, outside Echo Bay, for a swim. After swimming, A.A. alleges that the accused attempted to sexually assault her in a change room. The accused indicates that he attempted no such thing but that the two engaged in consensual sexual conduct, although they did not actually touch each other.

[3] As will be seen below, upon considering the evidence before me and the submissions of counsel, I have a reasonable doubt regarding counts #1, 2 and 3 of the indictment. Specifically, I have a reasonable doubt that:

(a) The alleged sexual act involving M.P. was non-consensual; and

(b) The accused stood in a position of trust and authority in respect of the complainant.

[4] Accordingly, the accused will be acquitted of those counts.

[5] I am, however, satisfied beyond a reasonable doubt that the accused committed the offences described in counts, #4, and 5, that is the counts involving A.A. He will be found guilty of same.

TRIAL HISTORY

[6] The Crown’s case was heard in August of 2015. Much of the Crown’s evidence dealt with the importance of various roles within an indigenous drum group. It appears that this evidence was provided to the Crown at the eve of trial. This evidence was not tendered as expert evidence. Given the strictures governing the admission of opinion evidence in cases like R. v. Arp, 1998 CanLII 769 (SCC), [1998] 129 CCC. (3d) 321 [S.C.C] and R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9. I indicated to counsel that the evidence I heard may not have been properly admitted. I asked for counsel’s submissions in this regard. At the outset of final submissions, counsel indicated that certain portions of the evidence (effectively opinion evidence regarding drum groups) ought not be considered at trial as a result. Accordingly, I have not considered those portions of the evidence.

[7] I will consider the evidence of those witnesses who observed the group in question and described the interaction therein. For example, I cannot draw the inference that, as a result of the accused’s position as drum keeper, R[…] culture demands that the accused was likely in a position of trust and authority over a back-up singer. However, I could draw that same inference if I had evidence that the back-up singers in R[…] (the drum group in question) deferred to the drum keeper, pipe carrier and/or lead singer.

[8] Upon completion of the Crown’s case, defence asked for an adjournment to bring a s.276 Application regarding the allegations made by M.P. Specifically, the defence indicated that it wished to call evidence regarding the complainant’s prior sexual conduct. After the matter was put over to allow the defence the opportunity to marshal the evidence and to permit the potential witness to receive independent legal advice, the defence abandoned the application. I heard no direct evidence in this regard and, accordingly, I disabuse my mind of anything said by counsel or filed with the court in support of this abandoned application.

THE EVIDENCE

Allegations Involving M.P.

M.P.’s Evidence

[9] M.P. testified in an easily-followed, logical fashion. She required little or no prompting when she gave her answers. The accused is her first cousin. She is an Indigenous Canadian and prior to January/February 2004, she joined a singing and drum group called R[…]. In February 2004, she was fifteen years old. The group would attend pow-wows and other ceremonies where they would perform musical acts.

[10] The members of the group had different roles and functions, two of which were the “drum keeper” and the “pipe carrier”. M.P. described the functions as follows:

It means- it’s like he’s- he was able to- I’m not even sure really how to explain it. Like it’s just- it’s a really strong and really powerful thing to be a pipe carrier and a drum keeper, and you know like he’s – people can go to him and ask him to smoke his pipe and he can help them like if they needed medicine or it was cleansing to be done or like feasting. You know, he’s able – through smoking that pipe he can hear our spirits or he can speak with them or communicate with that, that other side, like our spirit world.

[11] M.P. testified that she was “pretty sure” the accused was a drum keeper. She testified that he was a pipe carrier as well. M.P. was a back-up singer.

[12] M.P. also testified that the accused would organize attendance at pow-wows and would ask members of the group to participate:

Q. So R[…], who would be the one organizing you know where you go, what pow wow you go to, the rides – you know, all that sort of kind of things just to get you there...

A. Yeah.

Q. ...so you can...

A. Yeah, I think that it was T.M. that did a lot too, like he would ask me, oh, we’re going to go to this pow wow, can you come, or – and if it wasn’t him asking me it would be Beege, T.M. wants to know if you can come to this pow wow with us, you know stuff like – like he was the drum keeper and our lead singer, so that kind of just was his role and his responsibility, the pow wows that were available and stuff.

[13] M.P. felt a great sense of pride being a member of R[…]. She indicated that, for her, belonging to R[…] was a way of healing. At the time of the allegations, she was going through a rough patch with her mother in that she was “trying to be an adult and [my] mom’s trying to remind me I’m still a child and so going to the pow-wow, it kind of gave me the freedom and I was able to go sing and just pray for people… it was a healing thing”.

[14] In February of 2004, R[…] attended a weekend pow-wow in S[…], Ontario. On Friday, M.P. left for S[…] in a van with the accused and three of the male members of the group (who were related to the accused, and possibly, M.P.). Another female back-up singer made her own way to the pow-wow. The other back-up singer did not meet up with the remainder of the group until Saturday.

[15] The group checked into a hotel and stayed in the same room. The room had a bed, a pull-out couch and a bathroom. Two of the male members of R[…] slept on the pull-out couch. Another male member slept on the floor. The accused and M.P. slept on the bed. M.P. offered to sleep on the floor but a male member of the group (not the accused), said “no” and the complainant thus wound up sleeping on the bed.

[16] The accused was under the sheet and M.P. was on top of the sheet. They both shared the comforter. M.P. got into her pyjamas and fell asleep. M.P. is a restless sleeper and she remembered rolling over, throwing her arm over and the accused being beside her. At this point, M.P. remembered that the accused grabbed her hand and moved it down to his erect penis. She got scared and pretended to be sleeping.

[17] She then rolled over but the accused persisted. He moved closer and he was rubbing her legs, thighs and buttocks. He moved even closer and rubbed her vagina. All the while, the complainant pretended to be sleeping because she was scared.

[18] The accused then rolled her over and the complainant was on her back. He continued to “feel her up” and he pulled her closer still. They were then face-to-face. She pretended to be sleeping but the accused began kissing the complainant’s face and lips, putting his tongue in her mouth.

[19] The accused then whispered into M.P.’s ear, “Do you want to fuck?” M.P. indicated that she was hard of hearing. The complainant shook her head and whispered “No” because she did not want anyone to wake up and know what was going on. M.P. indicated that there was no conversation that occurred after this exchange.

[20] The accused stood up, held M.P. by the wrist – not violently, she stated – and he led her out of bed, past the sleeping males to the door. M.P. did not fight because she was afraid and followed him. She believed that if a fight occurred at that juncture, it would have been “a big mess” and that she would not be able to sing anymore. She also indicated that she was afraid of the accused because he was so much bigger than she was.

[21] He quietly opened the door and led M.P. into the hallway. In the hallway, he put his arm around her shoulder and M.P. noticed a black globe on the ceiling. She remembers two people passing them in the hallway. She did not mention the two people in her statement to police.

[22] The accused led her to the stairwell which had a railed-off landing with a garbage bin. The accused put the complainant’s back against the wall, pulled her pants down and started kissing her again. He grabbed her arms and threw them over her shoulders. Her pants were around her ankles at this point. She remembered trying to prevent her pants from being removed when he grabbed her by the knees so she was straddling him.

[23] She believes that her foot came out of her pants because her pants were hanging off her left foot. She was up against the wall, straddling the accused. The accused penetrated her vagina and began moaning.

[24] She was trying to close her eyes, “trying not to be there” when the accused stopped and guided M.P. to the garbage can area where he sat on the edge of the garbage bin and giggled. He turned M.P. around, placed her back against his chest. With one arm, he held M.P. close, and with the other arm he masturbated until he ejaculated on her leg. M.P. remembers the ejaculate felt hot on her leg.

[25] When it was done, the accused was smiling, giggling and they went back to the room. At this point, M.P. went to the bathroom as she was a virgin and she knew she would be bleeding. She went into the bathroom, locked and door and she panicked for a short time. She was thinking about what had just happened, thinking that she did not have any pads or tampons, she had ejaculate on her leg, and she was worried that her pyjamas would stink. She used toilet paper to clean herself.

[26] She did not want anyone to know about the encounter because the accused was a pipe carrier and a drum keeper and she didn’t think anyone would believe her. She testified that she felt “gross, like I didn’t want nobody to know that it happened to me. And I didn’t want anyone to know that my big cousin stole my virginity on me”.

[27] The next day, the members of the group awoke, attended the pow-wow and M.P. found the other female back-up singer and asked to stay with her. She stayed with the back-up singer.

[28] The complainant gave considerable detail in her testimony, recalling colours of pyjamas and the like.

Cross-Examination

[29] In cross-examination, M.P. testified that she disclosed the incident within a week to her cousin. She indicated that there was a “family meeting” of sorts that occurred sometime after the incident which involved her family and a confrontation with the accused. Around the same time, M.P.’s personal life devolved such that she ultimately dropped out of school.

[30] M.P. admitted that, in her statement to police, she failed to mention any of the physical consequences (i.e. pain, bleeding, etc.) that occurred as a result of the sexual conduct. She indicated that:

Q. You said this was the first time this ever happened to you.

A. Yes.

Q. You said you were a virgin

A. Yes.

Q. This was the first time it ever happened to you. I would have thought at some point you would have made some comment, all the various statements you’ve made, of some pain or discomfort or some very unpleasant feeling connected with this first penetration.

A. I’m sorry, I thought that was implied when I said I was a virgin.

Q. You thought that was implied?

A. Yeah.

Q. I see. I mean you’ve never, ever, even just spontaneously said it was very painful, excruciatingly painful. Was it?

A. No, It wasn’t excruciatingly painful.

Q. Was it painful at all?

A. Yes.

Q. I see. But you’ve never said that.

A. I said it now.

Q. Yeah, you said it now.

A. Hmm hmm.

Q. I see. I’m suggesting there was no blood.

A. Pardon?

Q. There was no blood that night.

A. Why?

Q. Because you weren’t a virgin.

A. But I was.

[31] M.P. also admitted that she had not described the relevance of the roles within R[…] in her statement to police. She admitted that at no time had she indicated that she trusted T.M. because he was a pipe carrier and drum keeper. In explanation of that omission, she stated:

I added that today because it was made clear to me that I am speaking to – I’m sorry – white people, who don’t understand our traditional values and our ways and our ceremonies.

[32] She also indicated that she had balled up toilet paper in order to staunch the bleeding and that she continued to be concerned about same while she attended the pow-wow the next day.

Evidence of C.S.

[33] C.S. was called by the Crown. She is the complainant’s mother. As explained in the introduction to these reasons, a considerable portion of her testimony dealt with the cultural significance of both drum group and their various roles.

[34] She also testified that she allowed the complainant to attend the pow-wow because she felt that M.P. would be safe given the presence of her cousins.

[35] C.S. was cross-examined on the existence of a diary that indicated that “T.M. raped me” which may have been the “trigger” for both the family meeting as well as M.P.’s troubled teenage years. C.S. was confronted by defence counsel’s allegations that her evidence – including that involving the cultural significance of the roles within R[…] – was tainted by her feelings of guilt in this regard. It should be noted that the diary evidence was not broached by the Crown and only arose in cross-examination.

The Accused’s Evidence

[36] The accused testified in a halting fashion. Counsel often had to prompt the accused into providing detail regarding his version of events. Even after being prompted, his evidence did not have the detail that the complainant’s possessed.

[37] The accused testified that he was approximately ten years older than the complainant who is his first cousin. Prior to his arrest, he worked in social work at a First Nations organization. Both he and the complainant belong to [Indian reserve omitted]. The accused testified that the two were not particularly close and that he was never in a position whereby he would give orders to her (i.e. Babysit her, etc.).

[38] In 2004, the accused belonged to a group known as R[…]. The group was an indigenous drum group that would travel to play at events including pow-wows. At any given time, between one to fourteen people belonged to the group. The number of people that played in the group depended upon the size of the drum.

[39] When asked whether the drums have cultural significance, the accused indicated that the particular drum played by R[…] was only a singing drum. When asked if there was any particular significance to the hierarchy in the group, the accused testified that he gave the complainant no orders and did not give her direction.

[40] In February 2004, R[…] attended a pow-wow in S[…] where the accused, the complainant and three other male group members drove to S[…] from Sault Ste. Marie. Another female back-up singer drove to S[…] in a separate vehicle.

[41] The group members that travelled together arrived at a hotel in S[…] and checked in. They rented a room that had one double bed, a washroom and a pull-out couch.

[42] It was agreed that the members would “stay where we wanted to sleep. Like I didn’t – don’t recall talking about anything”. The accused slept on the bed with the complainant while other members of the group either slept on the pull-out couch or the floor. The complainant and the accused both slept under the covers.

[43] The accused recalls that, after midnight, the complainant threw her left arm over him and kissed him. He kissed her back. At this point, she began touching his back, shoulder and chest and he recalled her feeling him to see if he was erect. He pulled down his pants.

[44] She began to masturbate the accused and the two continued kissing. The accused pulled up his pants, asked the complainant if she wanted to go for a walk. The two exited the room and walked out into the hallway where he asked if she wanted to have sex. She agreed whereupon the complainant bent over and the pair had sex in a bent over position.

[45] The accused ejaculated on the complainant’s leg and she scooped the ejaculate with her left hand and licked her finger.

[46] The complainant was in no pain, there was no blood and the two returned to the hotel room where the remaining members of R[…] continued to sleep.

[47] The group awoke the next day, got ready for the pow-wow and attended the event. The accused indicated that he did not recall the complainant speaking with him the next day. The complainant did not stay with the group the next day.

[48] About a year later, the accused and complaint’s family had a family meeting to discuss the incident but the particulars of that discussion were not presented to the Court.

Cross-Examination

[49] In cross-examination, the accused admitted that he rented the car, rented the hotel room and invited M.P. to attend the pow-wow. He denied, however, that he registered the group for the pow-wow or that he organized the group’s attendance at same. The accused further testified that attendance at the pow-wow was a group decision and denied being the “organizer” of the event for R[…].

[50] The accused denied being a pipe carrier at the time of the event and testified that it was not a “big thing” to him. The accused also could not specify the times at which he was a drum keeper. With respect to the drum, the accused testified that the drum has a spiritual connection to the peoples’ grandfathers and that drum keepers have to hold the drum with a certain reverence. Within the singing group, however, the accused denied that back-up singers have a subservient position to the drum keepers.

[51] The accused could not provide an answer in cross-examination for why he did not attempt to stop his younger cousin’s sexual advances, despite the fact that there were several men in the room. Equally, the accused did not have a response to the suggestion that it would have been safer to have sexual intercourse in the stairwell, where the risk of detection would have presumably been lessened as opposed to the hallway (which had security cameras and potential traffic).

[52] The accused also indicated that he and the complainant did not speak the next day, nor did they even exchange “knowing glances” regarding the previous evening’s events.

The Evidence of M.S.

[53] The defence called M.S. who is the complainant’s aunt. M.S. refuted C.S.’s assertions regarding the cultural significance of certain positions and relationships involving drum keepers and pipe carriers.

[54] Of the evidence that counsel were content for the Court to consider, M.S. testified that R[…] was started several years ago when it became clear to her and members of her family that the First Nations culture was not being held dear by a younger generation. Accordingly, the accused and boys of his ilk joined the group.

[55] As regards the incident in question, M.S. testified that she was present during the family meeting where the accused was confronted with the sexual activity in question. She indicated that the accused was forced to relay the event to his then live-in partner. The accused and his then partner ultimately married and had children together.

Allegations Involving A.A.

A.A.’s Evidence

[56] A.A. testified that, on June 1st of 1999, she was intending to go to college in Thunder Bay, Ontario. Accordingly, she needed to move her possessions from her apartment to her mother’s place in Sault Ste. Marie. She asked a friend to help her move. V.P. agreed to help and he arrived with a friend, the accused. She agreed to pay V.P. $20 for the use of his pick-up truck.

[57] It should be noted that V.P. passed away after the incident and prior to trial.

[58] A.A. knew the accused since the accused was A.A.’s brother’s best friend growing up. The accused is a year or two older than A.A.

[59] On the day of the move, the three individuals loaded A.A.’s goods into V.P.’s truck and moved it all back to A.A.’s mother’s domicile. After the move was done, the three decided to go for a swim at Tower Lake since it was a hot and hazy day.

[60] They drove the forty or so minutes to Tower Lake and the three walked up to the docks and noticed a lot of blood suckers in the water. They decided to take a quick jump in the lake and did so. V.P. went first, then the accused and then A.A. The three agreed to pull A.A. out quickly since she could not get out of the water very quickly.

[61] A.A. jumped in and the two men pulled her out onto the dock. The three were done swimming and decided to leave. A.A. left the dock and went to a change room building made of concrete. She entered the building which had separate men’s and women’s rooms located therein. There were no doors to the building.

[62] She went inside the women’s change room and faced the entry. She was in the middle of removing her top when the accused entered the room and asked her if she needed some help. He spun her around, got her up against the wall and lifted her up over his legs. Her arms were tangled in her tank top and she was sandwiched between the wall and the accused. He began to pull A.A.’s shorts to the side, with his penis in the other hand. He was pushing her shorts over and thrusting at the same time.

[63] He was pulling on her shorts aggressively but they were jean shorts. Accordingly, the accused had difficulty pushing the jean shorts aside given the strength of the material.

[64] At that point, A.A. noticed that the accused had a curve in his penis which pointed away from her vagina. As a result, he was having a hard time getting his penis properly located to penetrate A.A.

[65] A.A. began screaming, “Stop, stop”. The accused would not stop and A.A. began screaming for V.P. She believed that V.P. was still at the dock.

[66] She was against the wall at this point. A.A. pushed down on her legs to prevent the accused from penetrating her. She would get tired but would push repeatedly against the consistent thrusting of accused.

[67] The accused was stronger than she was since, at the time, she only weighed 110 or 120 pounds. Despite this fact, and despite the fact that the head of the accused’s penis was touching the side of A.A.’s vagina, A.A. testified that the accused stopped being aggressive. A.A. surmised that it was because of the fight she put up as well as because of all of the screaming.

[68] The accused took a step back and A.A. began berating him verbally.

[69] She exited the building and stormed back to the truck. The accused took his time returning to the truck, “having a stroll, nonchalant”. A.A. could hear music blaring from the truck and asked V.P. why the latter did not assist her. V.P. indicated that he could not hear. A.A. yelled at him, presumably because she did not believe V.P. She demanded to go home at that time.

[70] The accused entered the truck and sat in the front seat. A.A. sat in the back seat, yelling at the accused and hitting his seat on the way home.

[71] Upon getting home, A.A. noticed she had bruises on her right wrist from where the accused was holding her.

[72] She did not tell anyone about the incident because she was scared of the accused’s family’s position within the community.

Cross-Examination

[73] In cross-examination, A.A. agreed that she was an assertive personality who would not put up with less than acceptable behavior. Accordingly, she agreed that she did not “roll up into a ball and start crying” as a result of the situation.

[74] She also agreed that, in a meeting with the accused subsequent to the alleged incident, she stared the accused “down” while the two were at a mall.

[75] A.A. also agreed that she was aware of complaints regarding the accused that arose in 2012 but she indicated that the complaints did not cause her to come forward with her own allegations.

[76] The defence also questioned A.A. about the concrete walls in the change room and the fact that she had no injuries on her back as a result of the incident. She remained firm that she had injuries only to her wrist. She indicated that she did not show anyone the injuries.

[77] The defence attempted to impeach A.A. on her recollection of the colour of her tank top. A.A. indicated that she could not remember the colour of her clothing at the time she gave a statement to police but recalled the item’s colour the more she tried to recollect the incident.

[78] The accused’s version of events was put to A.A. and she denied that the incident occurred in that fashion.

The Accused’s Evidence

[79] The accused testified that he was visiting V.P. who asked him to help A.A. move her belongings. They attended A.A.’s residence with V.P.’s truck. They moved her belongings to A.A.’s mother’s residence and then decided to go for a swim on a humid day in June.

[80] The three individuals drove to Tower Lake and walked over to the dock and noticed that there were bloodsuckers in the water. They all decided to jump in the water with A.A. jumping in last. The accused was wearing shorts at the time.

[81] V.P. and the accused pulled A.A. out of the water at which point A.A. and the accused walked into the same dressing room while V.P. walked to his truck.

[82] The accused testified that he stood on one side of the change room while A.A. stood on the other. They got undressed in front of each other. A.A. changed into clothes that she had brought with her. They were both naked and the accused asked if A.A. wanted to have sex. A.A. replied that she did, but not at that location. The accused asked if he could masturbate in front of A.A. which he did. He ejaculated on the floor in front of her. The two got dressed and walked back to the truck. The accused and V.P. dropped A.A. off at her mother’s residence. The accused denied that A.A. began yelling at the accused and V.P. while they were in the truck.

[83] Subsequent to the event in question the accused testified that he would see A.A., but not regularly. This incident never became the subject of conversation. The accused also indicated that the first time he heard of these complaint was in 2012 when other allegations against the accused were made by other complainants.

Cross-Examination

[84] In cross-examination, the accused confirmed that he was wearing a t-shirt and running shoes on the day in question. The accused also confirmed that he was sitting around at V.P.’s house when A.A. called asking for assistance.

[85] The accused also confirmed that the decision to go for a swim was a “spur of the moment idea”. At no time in his testimony did the accused indicate that he had brought a change of clothes for swimming. In fact, the accused confirmed that he went into the water in his shorts, without his shirt and shoes. The accused also testified that he went into the change room to put on his shirt.

[86] The accused also confirmed that A.A. entered the change room first and that he knew A.A. was going into the women’s change room in order to change. The accused also testified that, prior to his entering the change room, there was no sexual connection between the two. In fact, the accused agreed that the appropriate thing to do in the circumstance was, likely, to enter the men’s change room instead.

POSITION OF THE PARTIES

The Allegations Regarding M.P.

[87] The defence submitted that the accused ought to be acquitted because:

(a) The accused’s version of events was both credible and unshaken regarding the major pieces of evidence, namely the evidence with respect to consent and position of trust and authority. Accordingly, the second prong of W.(D). is not satisfied;

(b) The complainant’s evidence suffered from the following frailties such that there is a reasonable doubt based on her evidence:

i. The complainant’s “rough patch” with her mother at the time of the incident augers in favour of the view that the complainant was engaging in an experimental time and thus was more likely to have consented;

ii. The evidence regarding who slept where is such that M.P. made a conscious decision to sleep in the bed. It was submitted that the evidence, supports the contention that the complainant consented to the activity in question;

iii. The complainant’s statement regarding “B.T.” makes it sound like she found the accused attractive, thus making it more likely that the complainant consented;

iv. M.P.’s failure to disclose the “excessive bleeding” and its consequences prior to trial discredits her testimony since it was a major issue whose lack of disclosure augers against a finding of credibility;

v. M.P.’s version of events suggests that a fifteen-year-old girl in the circumstances of the complainant would have broken down emotionally after the event such that those in the room – or later, those at the pow-wow– would have known that a traumatic event occurred;

vi. The manner in which the complainant initially disclosed the matter, and the subsequent family meetings regarding same, suggests that the story may have been concocted; and

vii. While the complainant testified that the accused undertook certain functions in terms of booking rooms and rental cars, the evidence was unclear as to whether or not the accused was actually in a position of trust or authority over the complainant despite his age, familial relationship and role within R[…].

[88] The Crown submitted that it has proven the case beyond a reasonable doubt because:

(a) The complainant’s evidence was strong, logical and flowed with narrative persuasion. It had considerable detail and, as such, was entirely credible.

(b) Any recent disclosure made by the complainant was either minor in nature or was sufficiently explained so as to be understood. In fact, the complainant never indicated that she bled profusely as a result of the sexual encounter;

(c) Her version of events is buttressed by the fact that she did not stay in the hotel room on the second night;

(d) Her evidence did not waiver and was never inconsistent;

(e) The accused must have stood in a position of trust or authority in regards to the complainant because:

i. He was the leader of R[…] in that he registered the group, rented the hotel and the vehicle; and

ii. The complainant indicated that she trusted the accused because of his relationship with her and his position within the group.

(f) The accused’s evidence ought to be rejected outright since:

i. It was bereft of detail;

ii. The accused was inconsistent with respect to certain details. For example, the Crown suggests that the accused failed to indicate in examination-in-chief that M.P. placed her hand upon the accused shoulder; and

iii. It was inconsistent regarding whether or not the accused was a drum keeper or pipe carrier at the relevant time. In fact, the accused appeared to be searching for the correct answer so as to avoid evidentiary problems;

(g) If I have a reasonable doubt about whether the complainant consented to the sexual activity, I should nonetheless find the accused guilty of Counts #2 and 3 since I ought to be satisfied that the accused stood in a position of trust and authority towards the complainant given:

i. The age difference between the parties;

ii. The fact that the complainant viewed the accused a leader; and

iii. The familial relationship between the two.

Allegations Regarding A.A.

[89] The defence submitted that the accused ought to be acquitted of the counts involving A.A. because:

(a) The accused’s version of events makes sense and is worthy of belief, thus engaging the second ground of W.(D). The defence cautioned the Court against judging the plausible nature of events through the lens of Victorian morality which may not understand “hook up” culture that allegedly exists today; and

(b) A.A.’s version of events does not make sense given:

i. The facts surrounding her relatively recent complaint; and

ii. The fact that there was no torn clothing as a result of the events in question despite the fact that the change room had a cement wall. This is important given A.A.’s contention that she was effectively sandwiched between the accused and the wall.

[90] The Crown submitted that it proved its case beyond a reasonable doubt in so far as:

(a) A.A.’s version of events was clear, credible and almost entirely unshaken on cross-examination; and

(b) The accused’s version of events made no sense given that:

i. The accused entered the women’s change room with the intention of changing, not of engaging in sexual conduct. The accused own testimony indicated the two had no sexual tension prior to entering the change room; and

ii. There was no evidence that the accused had any clothing with him into which to change.

THE LAW

[91] Prior to analyzing the evidence before the Court, it should be noted that the Crown did not bring a Similar Fact Application. As such, I will deal with each incident separately without regard to any evidence of the other complaint.

[92] The accused is charged under sections 153(1)(a) and (b) as well as section 271 of the Criminal Code of Canada in regards to the incident involving M.P.

[93] As regards A.A., the accused is charged pursuant to sections 271 and 279 of the Criminal Code of Canada.

[94] The relevant sections of the Criminal Code read as follows during the relevant times:

Sexual exploitation

153 (1) Every person who is in a position of trust or authority towards a young person or is a person with whom the young person is in a relationship of dependency and who

(a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person, or

(b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction.

(2) In this section, “young person” means a person fourteen years of age or more but under the age of eighteen years. R.S.C. 1985, c. 19 (3rd Supp.) s.1.

Sexual assault

271 (1) Every one who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Forcible confinement

279 (2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

[95] With respect to section 153 of the Criminal Code of Canada, [and given the application of R. v. W(.D). to this case (which will be discussed below)], the accused may be convicted of section 153(1)(a) or (b) if I am satisfied beyond a reasonable doubt that :

(a) M.P. and the accused had consensual sexual relations; and

(b) That the accused was in a position of trust or authority as regards M.P.

[96] The Supreme Court discussed the meaning of the terms “position of trust” and “position of authority” in the case of R. v. Audet, 1996 CanLII 198 (SCC), [1996] S.C.J. No. 61. In that case, a 22-year-old teacher was charged under s.153(1) of the Criminal Code of Canada as a result of sexual contact that arose between the teacher and a 14-year-old student at a night club during summer vacation. In determining whether the teacher was, in fact, in a position of trust and authority in relation to his former student, the majority of the Court stated as follows at paragraphs 33 to 38:

“Position of Authority” and “Position of Trust”

The courts have had little to say on a theoretical level about the scope of these expressions, which are nowhere defined in the Criminal Code. Proulx J.A. wrote the following about the “position of authority” concept in Léon, supra, at p. 483:

[translation] In its primary meaning, the notion of authority stems from the adult's role in relation to the young person, but it will be agreed that in the context of this statutory provision, to be in a “position of authority” does not necessarily entail just the exercise of a legal right over the young person, but also a lawful or unlawful power to command which the adult may acquire in the circumstances.

For his part, Blair J. made the following comment in P.S., supra:

. . . [a position of authority] invokes notions of power and the ability to hold in one's hands the future or destiny of the person who is the object of the exercise of the authority. . . .

Finally, Blair J., also in P.S., wrote the following about the term “position of trust”:

One needs to keep in mind that what is in question is not the specialized concept of the law of equity, called a “trust”. What is in question is a broader social or societal relationship between two people, an adult and a young person. “Trust”, according to the Concise Oxford Dictionary (8th ed.), is simply “a firm belief in the reliability or truth or strength of a person”. Where the nature of the relationship between an adult and a young person is such that it creates an opportunity for all of the persuasive and influencing factors which adults hold over children and young persons to come into play, and the child or young person is particularly vulnerable to the sway of these factors, the adult is in a position where those concepts of reliability and truth and strength are put to the test. Taken together, all of these factors combine to create a “position of trust” towards the young person. [Emphasis added.]

I would add that the definition of the words used by Parliament, like the determination in each case of the nature of the relationship between the young person and the accused, must take into account the purpose and objective pursued by Parliament of protecting the interests of young persons who, due to the nature of their relationships with certain persons, are in a position of vulnerability and weakness in relation to those persons.

Even in light of these definitions, the concept of a “position of trust” is difficult, perhaps even more than that of a “position of authority”, to define in the abstract in the absence of a factual context. For this reason, it would be inappropriate for this Court to try to precisely delineate its limits in a factual vacuum, especially since very few judicial decisions have so far commented on this relatively recent provision of the Criminal Code. The fact that this appeal was brought as of right and that the issue was not fully argued in this Court makes this even more compelling.

It will be up to the trial judge to determine, on the basis of all the factual circumstances relevant to the characterization of the relationship between a young person and an accused, whether the accused was in a position of trust or authority towards the young person or whether the young person was in a relationship of dependency with the accused at the time of the alleged offence. One of the difficulties that will undoubtedly arise in some cases concerns the determination of the times when the “position” or “relationship” in question begins and ends. It would be inappropriate to try to set out an exhaustive list of the factors to be considered by the trier of fact. The age difference between the accused and the young person, the evolution of their relationship, and above all the status of the accused in relation to the young person will of course be relevant in many cases. [Bold added]

[97] From this passage, I believe that it is the trier of fact’s duty to assess all the circumstances of a given relationship to determine whether or not the accused has acquired:

(a) The “lawful or unlawful power to command” a child; or

(b) the “opportunity to [exercise]… all of the persuasive and influencing factors which adults hold over children and young persons… and the child or young person is particularly vulnerable to the sway of these factors”.

[98] Accordingly, it appears that there is no rule that a person’s occupation – or presumably extended familial relationship – necessarily imbues an adult with a position of trust or authority. While some relationships may generally create such relationships (teachers, coaches, etc.), it appears clear that the specifics of each individual relationship must be examined in order to determine whether or not a relationship of trust or authority in fact exists.

Credibility and the Assessment of Evidence

[99] When the accused testifies and recounts a version of events different than that adduced by the Crown witness[es], the Court must weigh the evidence and consider whether it is satisfied that the Crown has proven the allegations beyond a reasonable doubt. The Supreme Court of Canada enunciated an appropriate framework for weighing such evidence in the context of a jury charge in case of R. v. W.(D)., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 at para 28:

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.

[100] I have been provided the case of R. v. J.J.R.D., 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749 (Ont. C.A.) which assists the trier of fact in understanding that the test in W.(D.) is not one that ought to be applied without considerable thought. In J.J.R.D., the complainant testified that she was sexually assaulted by the accused. The complainant was nine at the time of the incidents and approximately eleven at the time of trial. She kept a diary which corroborated her version of events. She gave better and further detail of the incidents at trial than she did in her statement to police or in her testimony at the preliminary hearing. The accused testified and was unshaken in his evidence in which he refuted the Crown’s allegations.

[101] The trial judge (sitting alone) convicted the accused because he was satisfied that the Crown had proven the offences beyond a reasonable doubt. In upholding the trial judge’s findings, the Ontario Court of Appeal stated at paragraph 53:

The trial judge's analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant's denial because stacked beside A.D.'s evidence and the evidence concerning the diary, the appellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.

[102] Thus, it appears that an accused’s evidence may be rejected despite that fact that it has no flaws, if, when “stacked” against credible, accepted evidence the accused’s evidence does not meet the W.(D.) test.

[103] A related topic in both J.J.R.D. and the case before me involves the manner with which a Court considers the evidence of witnesses who recall events that occurred in their childhood. The Supreme Court of Canada examined this phenomenon in R. v. R.W., 1992 CanLII 56 (SCC), [1992] S.C.J. No. 56. McLachlin J. (as she then was) discussed the changes that were then occurring in the law as they pertained to the testimony of children. Specifically, she stated at paragraphs 23 to 26:

Before turning to the particular errors alleged, I pause to consider the general question of how courts should approach the evidence of young children. The law affecting the evidence of children has undergone two major changes in recent years. The first is removal of the notion, found at common law and codified in legislation, that the evidence of children was inherently unreliable and therefore to be treated with special caution. Thus, for example, the requirement that a child's evidence be corroborated has been removed: s. 586 of the Criminal Code, R.S.C. 1970, c. C-34, which prohibited the conviction of a person on the uncorroborated evidence of a child testifying unsworn, was repealed… Similar provisions of the Canada Evidence Act, R.S.C. 1970, c. E-10, and Young Offenders Act, S.C. 1980-81-82-83, c. 110, have also been eliminated. The repeal of provisions creating a legal requirement that children's evidence be corroborated does not prevent the judge or jury from treating a child's evidence with caution where such caution is merited in the circumstances of the case. But it does revoke the assumption formerly applied to all evidence of children, often unjustly, that children's evidence is always less reliable than the evidence of adults. So if a court proceeds to discount a child's evidence automatically, without regard to the circumstances of the particular case, it will have fallen into an error.

The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. Wilson J. recognized this in R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at pp. 54-55, when, in referring to submissions regarding the court of appeal judge's treatment of the evidence of the complainant, she said that,

... it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children.

As Wilson J. emphasized in B.(G.), these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child. What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.

It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards -- to do so would be to create a new stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. [Emphasis added]

[104] The Ontario Court of Appeal has recently described the importance of inconsistencies as they pertain to the weighing of evidence. In R. v. A.M., 2014 ONCA 769, [2014] O.J. No. 5241, the Court indicated at paragraphs 9 and 13:

First, every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding, and ability to communicate: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 134.

Second, no inflexible rules mandate when a witness' evidence should be evaluated according to "adult" or "child" standards. Indeed, in its provisions regarding testimonial capacity, the Canada Evidence Act, R.S.C., 1985, c. C-5, eschews any reference to "adult" or "child", preferring the terms "14 years or older" and "under 14 years of age". An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children's evidence: W. (R.), at p. 134.

Third, despite this flexibility, there are some guiding principles. Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: W. (R.), at p. 134. See also, R. v. Kendall, 1962 CanLII 7 (SCC), [1962] S.C.R. 469.

Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.

Timely Complaint

[105] The failure to make a timely complaint may also, depending upon the circumstances of the case, may affect the credibility of the complainant: R. v. M.(P.S.), 1992 CanLII 2785 (Ont. C.A.).

ANALYSIS

The Allegations involving M.P.

M.P.’s Evidence

[106] An examination of M.P.’s evidence reveals that she is a largely credible witness. She testified in a straight-forward, direct manner and appeared to answer all questions posed in a thoughtful and nuanced fashion. Accordingly, she presented as intelligent and honest. Further, it was clear from her testimony that the event in question had a powerful impact upon her emotionally, which also added to her credibility in this regard.

[107] The substance of her responses was also generally persuasive. She gave detail regarding her memories of the events in question that one could easily imagine a young girl recalling about a traumatic event: who wore what, where individual were located in the room, and the like.

[108] In contrast to her recollection of said details, M.P. had three areas of inconsistency in her testimony:

(a) She failed to mention the people in the hallway when describing the event in question to police;

(b) She failed to describe the importance of the band members’ roles prior to trial and;

(c) She failed to describe the physical results of her loss of virginity (i.e. blood loss, lack of feminine hygiene products, etc.) to the police. This evidence was first heard at trial.

[109] As indicated in A.M., some inconsistencies of considerable import while others have less importance. Further, as described in J.J.R.D. and R.W., I must examine these inconsistencies while giving appropriate consideration to the fact that the events occurred while M.P. was fifteen years old.

[110] As regards the failure to recall the people in the hallway, this inconsistency is entirely understandable. It is entirely reasonable that a person will forget about – or neglect to recount – collateral facts that occurred when that person faced a traumatic event as a young person. The presence of two people in a hallway is entirely collateral to the events being tried. Accordingly, this inconsistency is minor and does not detract materially from the complainant’s evidence.

[111] With respect to the band members’ roles in R[…], the complainant provided a terse, but complete explanation. She stated that she did not previously provide any evidence of the roles because:

I added that today because it was made clear to me that I am speaking to – I’m sorry – white people, who don’t understand our traditional values and our ways and our ceremonies.

[112] This explanation provides the Court with some difficulty. On the one hand, it makes sense that M.P., an indigenous Canadian, would not necessarily think to include discussion of R[…] culture in her statement to police. On the other hand, it is clear that this evidence is of considerable importance to both the complainant and the case as well. When I consider J.J.R.D. and R.W., I have some concerns regarding her evidence as a result.

[113] With respect to the complainant’s alleged failure to describe the consequences of her loss of virginity to police, her explanation also gives rise to some concern. I accept that a witness might believe that physical pain stemming from the loss of a girl’s virginity would be assumed. Accordingly, I accept the complainant’s testimony in that regard. However, the Court was left with the clear impression that the complainant was troubled by the consequences of the sexual activity and that the concomitant bleeding was a traumatic event for her in light of:

(a) Her need to ball up toilet paper to staunch the bleeding; and

(b) The fact that this situation occurred in a hotel bathroom where four boys/men were sleeping all around her.

[114] Defence counsel suggested in his submissions that the complainant failed to account for her treatment of profuse bleeding. Clearly, this is a misstatement of the evidence in so far as the complainant denied that she bled profusely. Rather, she indicated that she suffered from some bleeding and some pain.

[115] Despite defence counsel’s overstatement of the inconsistency, I nonetheless cannot imagine that the set of circumstances described by complainant (i.e. losing her virginity to her cousin and then re-entering a hotel room surrounded by male members of R[…]) would be anything other than highly traumatic. Thus, the fact that the complainant failed to disclose these facts prior to trial gives me some concern with regard to her credibility.

[116] Defence counsel also had other submissions regarding the complainant’s credibility. The defence suggested that the nature of the disclosure of the incident damaged the complainant’s credibility. I disagree with that assertion. I have no evidence regarding what was said at the “family meeting” wherein the incident was discussed and, without any such evidence, it would be mere speculation to suggest that the complainant was pressured into lying or was otherwise less then credible.

[117] Equally, I disagree with the submission that the complainant’s credibility was in any way weakened by the revelation that the complainant had difficult teenage years following the incident. The Courts have seen time and again situations where complainants’ lives are damaged, even destroyed, by incidents of sexual misconduct.

[118] Further, the defence made submissions that appear to engage the “rape myths” described in R v. Seaboyer / R v. Gayme, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577. As a result, I need not deal with same.

[119] It should also be noted that the fact that the complainant did not stay with the male members of R[…] on Saturday night also bolsters her credibility as does the fact that the accused and the complainant did not discuss events subsequently. Avoiding a perpetrator and avoiding discussing the incident is consistent with the complainant’s version of events.

[120] Accordingly, when I examine the complainant’s testimony, she was generally powerful, persuasive and thoughtful. Her evidence appeared to be compelling and, despite some concerns with respect to late disclosure of important items, was generally credible.

The Accused’s Evidence

[121] The accused version of events was largely unshaken regarding the key issues at trial. His testimony regarding the complainant’s alleged sexual aggression was untouched as was his assertion that R[…]’s members were not “subservient” to the lead singer. Further, the accused was not challenged on the position that he was not close with M.P. and that he was never in charge of her.

[122] The Crown submitted that the accused’s version of event was implausible given the risks associated with his story. Effectively, the Crown asked the Court to believe that the accused would not have had sexual relations with his younger cousin in a situation where:

(a) The hotel room was occupied by several men/boys;

(b) He would go with his younger cousin out to the hallway where a camera was located; such that

(c) He would risk being discovered by others in an incestuous, potentially criminal liaison.

[123] While such a submission would often have great weight, it must be considered in light of the complainant’s testimony. Her version suggests that:

(a) She is hard of hearing;

(b) The accused whispered “let’s fuck” to her sufficiently loudly that she could hear;

(c) The accused was not so loud as to awaken the other band members;

(d) The accused risked that the complainant would yell or scream when confronted with his amorous advances; and

(e) The accused took the complainant into the stairwell where he could also have been discovered committing a criminal act.

[124] Thus, while I agree that the accused’s version of events is sufficiently “risky” so as to be generally implausible, the reality is that this version of events is arguably less risky than the version of events described by the complainant. Accordingly, I do not discredit the accused as a result.

[125] The Crown also suggested that the accused’s version of events was otherwise incredible. For example, the Crown stated that the accused’s testimony was “bereft” of detail. While this submission may be a mild overstatement, it is nonetheless true that the accused’s evidence in this matter was not particularly detailed. The accused would answer questions in a curt fashion and it occasionally appeared as though counsel had to “pull” answers out of him. Indeed, many of the simple details described by the complainant were either missed by the accused, glossed over or answered tentatively.

[126] In fairness to the accused, however, it must be stated that the weighing of evidence is not a storytelling contest. Simply put, some truthful people speak in an awkward fashion but are no less worthy of belief. Accordingly, I must look deeper into the substance of the accused’s answers to determine whether or not his testimony was credible.

[127] For example, I disagree that with the Crown that the accused’s supposed inability to describe the complainant’s hand on his shoulder in examination-in-chief is a notable inconsistency. When I consider that the accused’s version of events indicates that the sexual advances were a surprise to him, the failure to recount the placement of the complainant’s hand on the accused’s shoulder is not particularly troubling. In such circumstances, a hand on the shoulder is a fairly minor detail.

[128] Equally, I disagree with the Crown as regards the accused’s alleged failure to describe the fact that he masturbated on the complainant’s leg in examination-in-chief. In examination-in-chief, the accused testified that he and M.P. had “doggie-style” sex. He was asked if he ejaculated to which he answered: “Yes, not in her, but on her leg”. While the accused does not specifically indicate that he masturbated, this fact could easily be inferred from the answer. This alleged inconsistency may be attributable to the accused speaking style and, as such, the failure to disclose masturbation in examination-in-chief causes me some – but very little – concern.

[129] I must also consider the fact that the accused appeared to be searching for answers in parts of his cross-examination. For example, when cross-examined about whether he was a drum keeper at the relevant times, the accused gave an incomprehensible answer such that I was left with the impression that the accused was searching for an answer. In light of the importance that this evidence plays in the sexual interference charges before the Courts, such an inconsistency is serious and causes me concern.

[130] Accordingly, when I look at the evidence of the accused in its totality and I consider the fact that some of the accused’s otherwise short answers may be attributable to his blunt style of speaking, I cannot reject the accused’s evidence in its entirety. It is fair to say that I have concerns regarding the accused’s credibility. Specifically, his lack of evidential depth coupled with his searching for answers cause me to have concerns about his credibility, but that concern is not sufficient so as to make me reject his evidence outright.

Analysis

[131] My finding regarding the accused’s evidence effectively mandates that I am in a state of reasonable doubt when I apply the second-prong of the test in W.(D.). Specifically, while the accused’s evidence had difficulties which I have described above, his evidence was unshaken regarding the consensual nature of the sexual liaison. Further, he also maintained that, despite the difference in age between himself and M.P., he:

(a) Was not close with M.P.;

(b) Was never in charge of his younger cousin (as a babysitter, etc.); and

(c) As a lead singer, was not in a position of authority over a “subservient” background singer.

[132] I also consider the complainant’s evidence “stacked up” against that of the accused. While her version of events was largely credible, it cannot be said that the frailties associated with the complainant’s evidence were always minor in nature. Some of M.P.’s late disclosure was meaningful to the case (specifically, the evidence regarding the bleeding and the roles within R[…]) and the complainant’s failure to disclose same prior to trial causes me to have some overall concern. This concern is highlighted by the fact that M.P. was an adult at the time she testified (as per R.W.).

[133] Unlike J.J.R.W., this is not a case where I have rejected the accused’s evidence despite the fact that he was largely unshaken on the major points. Unlike J.J.R.W., I am not satisfied that the entirety of the evidence heard in this trial leaves me satisfied beyond a reasonable doubt that the accused is guilty of the offences charged. Specifically, the accused’s testimony leaves me in a state of reasonable doubt as per the second prong of the test in W.(D.).

[134] As regards to the complainant’s consent, I am thus left in a state of reasonable doubt.

[135] I also have a reasonable doubt that the accused was in a position of trust or authority (despite the complainant’s assertion that she looked up to her elder cousin), given his role as lead singer/ drum keeper/ pipe carrier. The accused was unshaken on his position that:

(a) He never gave orders to the complainant;

(b) He was not in charge of R[…]; and

(c) That the backup singers were not “subservient” to him.

[136] This position is buttressed by the complainant’s testimony that she joined R[…] to assert her adulthood. Accordingly, it is plausible that the accused was not in a position of trust or authority when the accused’s testimony is “stacked” against the complainant’s version of events.

[137] Accordingly, based upon my state of reasonable doubt grounded in the second-prong of W.(D.) , the accused will be acquitted on count # 1, 2 and 3.

Allegations Regarding A.A.

A.A.’s Evidence

[138] With respect to A.A.’s evidence, I found her to be credible. She was largely unchallenged upon the crucial pieces of her evidence and she presented as a powerful, confident and generally truthful witness. Her recitation of events came with little prompting and she provided a strong description of the events.

[139] She was unshaken in cross-examination where four areas were canvassed. First, she indicated that she recalled for the first time in examination-in-chief that her tank top was red. This was a minor point and does not cause me any concern.

[140] Secondly, A.A. was asked in cross-examination about why she made a complaint against the accused several years after the incident. While she acknowledged that she was aware of the complaints made by M.P. and someone else, she denied that those complaints caused her to come forward. There is no evidence that she spoke with either of these complainants or that there was any collusion in this regard. There is no evidence that her awareness of other complainants generated a malicious intent within her. As such, I accept her explanation and do not believe that the timing of her disclosure discredits her testimony.

[141] As for the lack of torn clothing, jeans are a rugged item of clothing and are difficult to rip. Equally, A.A. did not testify that the accused pulled at her top. Accordingly, the fact that she claims that her clothing was not torn is consistent with her testimony in general and not concerning.

[142] As for the lack of injuries other than a bruised wrist, A.A.’s evidence did not suggest that such bruises were likely. Indeed, one can easily imagine how A.A. could be sandwiched against the wall without suffering any injuries. The lack of injuries is therefore understandable.

[143] Accordingly, the version of events she described was credible and was told in a strong, believable fashion. I accept her evidence.

The Accused’s Evidence

[144] The accused would have me believe that he:

(a) Decided to change his clothes;

(b) Despite there being no sexual tension between the two, he decided to enter the women’s change room where A.A. was changing; and

(c) Upon entering the change room, sexual tension sparked between the two such that events unfolded as he described.

[145] The accused’s evidence is not worthy of belief. For example, the accused testified that he went into the change room in order to change his clothes. This testimony begs the following questions: If he brought no new clothes to the lake, why would he enter the change room? Why not put his tee-shirt on at the dock?

[146] Also, the pictures filed of the change rooms in question reveal that there were clearly entrances to both the men’s and the women’s change rooms. This is important because there is no evidence of any sexual tension between A.A. and accused prior to him entering the women’s change room. If the express purpose of going into the change room was, as the accused testified, to get changed, why did the accused proceed into the women’s room? Even the accused admits that that entering the men’s change room was the more appropriate decision. Simply put, the accused’s evidence that he followed A.A. into the women’s change room to get changed makes no sense.

[147] I disagree with defence submissions that such concerns betray an antiquated or Victorian sexual moray. My rejection of the accused’s evidence is not a rejection of alleged norms of the “hook up” culture whereby young people allegedly engage in more frequent and diverse sexual encounters than people did a decade or two ago. Instead, my finding accepts that there is no evidence from any source that either A.A. or the accused found each other attractive prior to the accused’s entrance into the women’s change room. Such a lack of sexual interest (prior to entering the change room) does not square with common sense. It occurs to me that a man seeking to get changed would not follow a woman into the women’s change room unless he was sexually interested. I do not believe the accused. His version of events must be rejected in its entirety.

Analysis

[148] Thus, when I review the test described in W.(D.), I find the following:

(a) I accept the complainant’s evidence in its entirety (as described above); and

(b) I reject the accused’s evidence in its entirety. His evidence makes no sense and does not leave me with a reasonable doubt (as described above); and

(c) Looking at the evidence as a whole (as per the third prong of W.(D.), I am left in no doubt whatsoever that the events in question occurred as described by A.A. Her evidence was credible with only minor issues regarding inconsequential details. The accused’s evidence, on the other hand, was absurd.

[149] Given the findings of credibility that I have made, and given analysis described in W.(D.), the accused is hereby guilty of counts #4 and 5.

CONCLUSION

[150] The accused is acquitted of counts # 1, 2 and 3 but is guilty of counts #4 and 5. The parties may select a date for sentencing submissions.

Varpio J.

Released: May 10, 2016

CITATION: R. v. T.M., 2016 ONSC 2969

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

• and –

T.M.

REASONS for judgement

Varpio J.

Released: May 10, 2016