CITATION: R. v. Furiano, 2016 ONSC 4329

COURT FILE NO.: CR-15-30000355-0000

DATE: 20160630

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TOM FURIANO

Accused

Brian Moreira, for the Crown

Paul Affleck, for the Accused

HEARD: June 27 & 28, 2016

B.A. ALLEN J.

REASONS FOR DECISION

BACKGROUND

1The complainant in this case expressly waived her right to a publication ban on her identity. I will therefore use her name in this decision.

2This is a historical sexual assault case. The accused, Tom Furiano, is charged, contrary to s. 146(1) of the Criminal Code, that sometime between November 26, 1975 and November 26, 1976 he engaged in sexual intercourse with the complainant, D.B., a female who was not his wife and was under the age of 14 years.

3D.B. had been living in Calgary for many years after her relationship with Mr. Furiano ended. She went to the Calgary police on November 27, 2013.

4D.B. was the only witness called to testify. Mr. Furiano did not testify as is his right. Mr. Furiano is innocent until proven guilty by the Crown. It is the Crown’s obligation to lead evidence sufficient to prove Mr. Furiano’s guilt beyond a reasonable doubt.

5D.B. was born on […], 1962 and is currently 53 years of age. Mr. Furiano and D.B. became acquainted in around 1976 when D.B. was a member of a drum and bugle corps while she was a student. Mr. Furiano was a marching and manoeuvering instructor with the band and D.B. carried a flag in the colour guard. The band would practice for North American competitions during the week on Wednesdays after school and on Sundays.

THE ISSUE

6There is no question Mr. Furiano was in a sexual relationship with D.B.. The only issue to be decided is whether she was under 14 years of age when Mr. Furiano first had intercourse with her.

THE EVIDENCE

Examination-in-Chief

7D.B. testified she became involved in a sexual relationship with Mr. Furiano when she was 13 years old and he was 26 years old. At the time, Mr. Furiano was married with two children and lived in a home with his family.

8D.B. testified that the relationship was just friendly at first then graduated to being romantic. It started with kisses, then touching and making out. D.B. testified that in her immaturity she regarded Mr. Furiano as her boyfriend.

9After band practice Mr. Furiano would regularly take D.B. out for beer and then drive her home. Much of the sexual activity took place in Mr. Furiano’s vehicle after he would park on the lot outside the building D.B. lived in with her family.

10D.B. testified that the first incident of intercourse with Mr. Furiano occurred on a long weekend. Mr. Furiano’s family had gone away for the weekend. D.B. recalled that Mr. Furiano took her to his home in Etobicoke. She spent one night at the house with him and he drove her home the next day. D.B. testified at trial that she could not recall if this happened during the long weekend in August or September, 1976.

11She did not recall whether when it occurred when school resumed after the summer.

12D.B. testified that she did recall that she was age 13 at the time of the first incident of intercourse. She stated that her age stuck in her mind because she and Mr. Furiano spoke of how she was half his age. She said they discussed the age difference during what she referred to as “pillow talk”. She did not recall exactly when they had that discussion and said it could have been more than once.

13D.B. also testified about times during trips away for international competitions that she and Mr. Furiano had intimate relations. One such trip was for a competition in Denver, Colorado. D.B. recalled the trip was in August 1977. The date of the trip to Denver is important to D.B.’s attempt to establish she was 13 years of age when she first had intercourse with Mr. Furiano.

14D.B.’s evidence is that during a day off from competition, Mr. Furiano took D.B. to a drive-in movie to see “Herbie the Love Bug”, a film about a Volkswagen Beetle car. This event stood out in D.B.’s memory for a number of reasons. One reason was that Mr. Furiano was himself driving a Volkswagen Beetle at that time. The other reason the trip to Denver stands out is because it is marked by the date of death of a famous person.

15D.B. recalls she and Mr. Furiano were making out in the backseat of his Volkswagen when she heard an announcement over the radio that Elvis Presley had died. The date of Elvis’ death was August 16, 1977. She testified at trial that at the time of the Denver competition she had been in a sexual relationship with Mr. Furiano since about the fall of 1976. She stated she was in the relationship before November 26, 1976.

Cross-Examination

16Defence counsel’s cross-examination centred entirely on areas of inconsistency between the evidence D.B. gave at trial and the evidence she gave at the preliminary inquiry, a year earlier on June 9, 2015. Defence counsel challenged her with respect to her memory about the date she had her first encounter with sexual intercourse with Mr. Furiano.

17D.B. testified she had the opportunity to review the preliminary inquiry transcript from the Friday prior to the trial start date on the Monday. She testified she read the transcript two times.

18Defence counsel confirmed with D.B. that she had spoken to people over the years about her relationship with Mr. Furiano. D.B. acknowledged that she had spoken about this to the Calgary police, her therapists/counsellors and to friends. As recently as 2008, in answer to questions by an old acquaintance about what had been going on with Mr. Furiano, D.B. spoke about the relationship. She agreed that in speaking about events that happened nearly forty years ago she had to dig deep in her memory to recall the details. She said as much when being questioned by defence counsel at the preliminary inquiry.

19D.B. was born on […], 1962. She would have therefore turned 13 in 1975 and 14 on November 26, 1976. In August 1977 when Elvis died she would have been age 14, about three months shy of turning 15.

20At trial defence counsel put to D.B. that during her report to the police, disclosures to therapists/counsellors and discussions with friends she had difficulty recalling whether it was 1976 or 1977 when Mr. Furiano first had sexual intercourse with her. At trial D.B. denied this saying she knew for certain that she was 13 years old and said she knew the Denver trip was in 1977 and that the incident occurred before that.

21Defence counsel took D.B. to an area of the preliminary inquiry transcript where he asked her about the date and the timing of the trip to Denver in relation to the first encounter of sexual intercourse.

22D.B. testified at the preliminary inquiry that she did not recall off the top of her head when the Denver trip was. She said she thought it was 1976 or 1977, whatever year Elvis died.

23During the preliminary inquiry, on the question of when Mr. Furiano first started having sexual intercourse with her, D.B. stated that she did not know exactly, but she was 13. Defence counsel put to her that the first sexual contact was in the spring of 1977. At the preliminary inquiry, D.B. at first answered she did not know and then agreed that it was during the spring before the band went to Colorado. D.B. would have been 14 during the spring before the trip to Colorado.

24D.B. then said wait a minute − that she was doing some math in her head. She did not complete the math of corresponding the years with her ages during those years but she insisted she was 13 when she first had intercourse. She then went on to say it may have been 1977. D.B. then stated she could not give an exact year.

25Pointing to D.B.’s trial evidence that the first encounter happened during the long weekend in August or September, defence counsel posed to D.B. at the preliminary inquiry that it could have been July 1976. D.B. then stated it could have been October 1976 and then she back tracked to saying it was August or September 1976. She testified she was not good with dates and that she was wrong at the preliminary inquiry when she agreed the first encounter was in the spring before the trip to Denver when she would have been age 14.

CONCLUSION

26The Ontario Court of Appeal in R. v. Morrissey addressed the distinction between issues of “veracity” and “accuracy” in dealing with testimonial evidence. The court held that veracity relates “to the witness’s sincerity, that is, his or her willingness to speak the truth as the witness believes it to be …” and accuracy relates to the witness’s ability to “accurately observe, recall and recount the events in issue”: R. v. Morrissey, (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, at p. 526 (Ont. C.A.). Thus, unlike credibility, reliability does not focus on the believability of the witness. Reliability is concerned with the inherent nature of evidence. Stated another way, the issue of the veracity of testimonial evidence is directed to a witness’s credibility. When the concern is the accuracy of a witness’s testimony the issue is the reliability of that testimony: R. v. Morrissey, at p. 526).

27The distinction between credibility and reliability is important in the case before me.

28The outcome of this case rises and falls on a singular fact – when D.B. had the first intercourse incident with Mr. Furiano. Historical cases understandably pose evidentiary problems given fading memories with the passage of time. The offence alleged in this case occurred nearly four decades ago when D.B. was a young girl. It is expected that she would have difficulty recalling the details of an event dating so far back in time, particularly an event she tried to forget about. She had to dig deep into her memory when reporting to the police and testifying at the preliminary inquiry.

29It was evident that D.B. fell prey to this common human frailty. She gave inconsistent and vacillating evidence in a critical area, as between her evidence at trial and her evidence given a year earlier at the preliminary inquiry. I refer here to when in relation to the trip to Denver, for which we have a certain date, the first incident of sexual intercourse occurred.

30D.B. said she was certain she was age 13 but was not certain of the year or month of the incident. Her certainty about her age stemmed from her recollection about her and Mr. Furiano speaking about her age being half of his. She did not recall when or how many times they discussed the age difference in this way.

31In spite of D.B.’s certainty about this discussion being the reason she recalls she was 13, I must say I have some reservation in deciding Mr. Furiano’s guilt for such a serious crime based on that evidence, particularly given the fluctuating evidence as to when in relation to the Colorado trip the first incident occurred.

32I also want to make it clear that I do not fault D.B. for not being able to give firmer evidence. She is not unlike most people who try to remember events in their distant past, especially those one would rather had not happened. I believe D.B. was attempting to assist the court to the best of her ability to determine when the unfortunate incident in her life occurred. However, I am not able with sufficient confidence to find D.B.’s evidence reliably proves that she was less than 14 years of age as the Criminal Code required at the time.

33In other words, I did not find D.B. to lack credibility or to be a dishonest witness. I find the evidence in the most critical area was not sufficiently stable or reliable to support a guilty verdict.

34But let me say that my decision is certainly not to suggest that an adult who sexually exploits the innocence of a child over the age of 14 should not be regarded with an equal measure of scorn. The court today is bound by the law as it was 40 years ago which drew a line on the child’s age in a way that today’s law finds obsolete.

35I find for the foregoing reasons the Crown did not succeed in proving beyond a reasonable doubt that Mr. Furiano is guilty of the offence charged.

VERDICT

36For the foregoing reasons, I am not satisfied the Crown has proven Tom Furiano’s guilt beyond a reasonable doubt on the offence against D.B. on the one count on the indictment.

37I therefore find Tom Furiano not guilty on the one count on the indictment and an acquittal will be entered accordingly.