Court File and Parties

Court File No.: CR-15-30000373 Date: 2016-09-19 Superior Court of Justice - Ontario

Re: Regina v. EK

Before: E.M. Morgan J.

Counsel: Eadit Rokach, for the Crown Anthony Bugo, for the Defendant

Heard: September 12-14, 2016

Publication Ban

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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.

Reasons for Judgment

[1] The Defendant is charged with sexual assault and sexual interference with his spouse’s niece, JW, sometime in the summer of 2010. JW was then 12 years old and was visiting her aunt and family on Manitoulin Island.

[2] JW is now 18 years old and is a university student. She impressed me as a thoughtful young woman and an articulate witness. She also did her best to be a truthful witness, and was willing to concede that her memory of the relevant events is not perfect. Where she thought that her perceptions were foggy or possibly mistaken, she said so in an open and honest way.

[3] The incident occurred during what was a regular, annual summer visit of JW and her family to their relatives on the island. They all stayed at the home of IP, who was actually JW’s second cousin but who JW refers to as an aunt since she was roughly her parents’ age. The Defendant, who was IP’s spouse, was also present at the house, as were IP’s and the Defendant’s children. Another cousin of JW’s, CJ, was also staying over. JW and CJ are a year or two apart in age and spent much of their time together.

[4] Sleeping accommodations during the summertime visits were haphazard. There were no fixed bedrooms for the guests, and generally everyone seems to have slept on whatever bed or couch was available in the house. JW and the Defendant both described it as a “free for all”.

[5] On the night of the incident at issue, JW and CJ stayed home at IP’s house with their younger cousins and JW’s younger brother, while JW’s parents went with IP and the Defendant to a neighbour’s house where there was a party going on. JW and CJ eventually fell asleep in the living room downstairs, with CJ occupying the sofa and JW sleeping on an armchair.

[6] While a 12-year old could curl up and doze off on the rather large armchair, it was admittedly not the most comfortable place to sleep. JW testified that it was old and that she thought it originally belonged to IP’s father. The Defendant testified that although the chair once had been soft with thick cushioned armrests, it was by this time so worn and flattened that you could feel the hard wooden frame beneath the upholstery.

[7] JW thought that on that night, her brother had fallen asleep in the downstairs bedroom where her parents also went to sleep after returning from the party. She assumed that IP and her infant son had eventually gone to sleep in the upstairs bedroom where IP and the Defendant often slept. There was nothing unusual about any of these sleeping arrangements, except that JW had rarely, if ever, slept on the armchair, but instead was in the habit of finding herself an empty couch or bed.

[8] The only two witnesses at trial were JW and the Defendant, and they each told relatively similar stories of what happened that night. JW said that sometime in the middle of the night she felt herself woken up by the Defendant, who at first tried to lift her off the armchair and then told her to go upstairs to sleep on a couch that was empty up there. She went upstairs, and although sleepy was conscious of the Defendant coming up after her. She lay down on the couch and heard him go in and out of the room where she thought IP and her son were sleeping. She testified that she then sensed the Defendant approaching her on the couch.

[9] It was JW’s sense that something was wrong with the way the Defendant approached her, and that even in her partly sleepy state she could feel that he was nervous and hesitating. She testified that she laid still on the couch but kept her eyes partially opened so that she could see him approach. In JW’s description, he extended his hand and lightly touched her left breast. She said that he softly pressed his fingertips on her breast in the way that one might caress the cheek of a baby. The caress lasted for a second or two, after which the Defendant told JW to get up and go back downstairs to sleep.

[10] JW testified that she immediately got up and went downstairs, and that as she got up from the couch the Defendant lay down in the same spot. She took a few steps toward the staircase, and turned around at the top of the stairs just long enough to look back at the couch where she had been lying and where the Defendant was now lying. She testified that the Defendant was lying on his back, and that she thought she could see his pants open and his hand in his groin area making what she called “jerking movements”. In her examination in chief, JW indicated that she saw something flesh-toned in his hand and that she thought he was holding his genitals and masturbating.

[11] In cross-examination, JW conceded that she was unsure of what she saw at the top of the stairs and that her memory of the fleeting moment could be faulty. At one point she indicated that she only glanced back for a second or two, while at another point she stated that it might have been for a minute or a minute and a half. Similarly, at one point she said she could see the Defendant’s arm move but couldn’t really see his hand, while at another point she said that she thought she saw his hand holding a flesh-coloured part of his body.

[12] After being pressed in cross-examination, JW explained that although her line of sight was not good enough to explicitly see what the Defendant was doing, she had concluded in her own mind that he must have been masturbating. As she put it on the witness stand: “I didn’t have a clear view of it, but that was how I was trying to make sense of it in my mind.”

[13] As indicated above, JW was willing to confront the vagaries of her own memory. She engaged in a number of exchanges with defense counsel on what she might have seen at the top of the stairs, including the possibility that the Defendant was scratching himself in a non-sexual way. Although at first she was doubtful that this was what had occurred, she was ultimately willing to agree that this was at least a possibility. In response to defense counsel’s questions, JW stated, in as forthright way as she could, that, “I recall that he was laying on the couch and I thought he was masturbating, but now I concede that may not have happened.”

[14] In any case, JW said nothing to the Defendant and went downstairs and slept the rest of the night on the armchair. She found CJ still asleep on the living room couch. A short time later, JW and CJ were playing together on a trampoline and JW tried telling her cousin about the incident with the Defendant. She related, a bit hesitantly, that, “I think [the Defendant] touched me inappropriately.” According to JW, CJ, who was about 10 years old at the time, did not take her comment seriously and she dismissed it.

[15] The defense chalks up the entire episode, including the touching of JW’s breast and the masturbation allegation, to the misperception of a young person who was half asleep at the time. Defense counsel submits that all of the alleged misconduct was extremely brief, and under the circumstances there is a real possibility of error.

[16] This possibility is emphasized by the Defendant’s own recollection of the events that night. As the Defendant relayed it, he was at the party next door when the children fell asleep in his house. At the party, he and IP had snorted a small amount of cocaine with the neighbors, and were drinking beer. The Defendant said that IP drank substantially more than he did. As he described it, he “kept a small buzz going throughout the night”, but IP had gotten “severely wasted”.

[17] In fact, the Defendant said that IP got so drunk that relatively early that night he had to walk her back to their house to go to sleep. He conceded that he did not specifically recall placing her on the bed, and that he could not remember who else was in the house when he walked her back. But he was certain that he took IP home, and that she went to bed and he returned to the party alone.

[18] After returning to the party, the Defendant recalled having one more beer, or perhaps finishing the beer he had been drinking. He realized at that point that the party was winding down, and that some other guests that he did not know were coming over and so he decided to call it a night and go home to sleep. The Defendant also recollected that as he left the neighbour’s house he saw JW’s parents sitting in their car in his driveway. He went over to the car, said hello to JW’s father, and stood on the driveway smoking a cigarette before going into the house.

[19] When he entered the house, he said that he saw CJ asleep on the living room couch and JW asleep on the old armchair. He knew the armchair was uncomfortable and that the couch upstairs was empty, and he recalled telling JW to go lie down upstairs, thinking that it would be more comfortable for her there. When pressed on this, however, he was not sure how he knew that the upstairs couch was available. He speculated that he must have noticed it previously when he took IP home and she went upstairs to bed, but he admitted that he had no specific memory of the couch. In any case, the upstairs couch was indeed unoccupied, and JW went upstairs to continue sleeping there.

[20] The Defendant said that he spent a few minutes downstairs turning off the various lights that had been left on, and then went upstairs to go to bed. When he reached the top of the stairs, he first went to the washroom and then went into the bedroom where IP was sleeping. He quickly realized, however, that IP was sprawled out across the bed in a way that left no room for him to lie down. He said that IP is a very heavy sleeper and could not be moved, and that he was very tired and needed a place to sleep. He then went back out to the hallway to tell JW to return downstairs to sleep so that he could lie down on the couch himself.

[21] Counsel for the Crown questioned the Defendant very closely on this decision. In questioning him, counsel suggested that it made no sense for him to be kicking JW off the comfortable sofa when a short time before he had been so concerned about her comfort that he woke her up to prevent her from having to sleep on the armchair. The Defendant replied that although it may not seem very nice, once he saw that IP would not move over he needed a place to sleep and he certainly did not want to sleep on the uncomfortable chair downstairs.

[22] The Defendant indicated that he approached JW on the couch and that he assumed she had fallen back asleep. It was dark in the hallway, although there was some indirect light from the washroom. He said that he reached for her and shook her on the shoulder to wake her up. He was asked by his own lawyer if it was possible that he touched her breast instead of her shoulder, but he was adamant that he had touched her shoulder and no other part of her body. After repeating this several times, however, he conceded that it was at least a possibility – although, again, he did not believe this happened – that he had touched or grazed her breast by accident.

[23] The Defendant’s state of intoxication may have increased the chances that he was moving awkwardly and that he touched JW in a way or in a spot where he did not realize he was touching her. Although the Defendant indicated that he was relatively sober by the time he went home, he had consumed four “small lines” of cocaine and about five beers over the course of the evening. He admitted that he was extremely tired; indeed, that was the very reason he went to wake up JW on the couch after seeing that he could not sleep in the bedroom with IP.

[24] JW has known the Defendant since she was a small child. She testified that this was the one and only occasion on which he has ever done anything untoward, and that he has never otherwise made her feel uncomfortable or acted in any inappropriate way toward her. That said, she also described very vividly how traumatic this incident was for her, and how it has stayed with her over the six years since it occurred.

[25] In 2014, the Defendant, IP, and their children moved from Manitoulin Island to Toronto. This move sparked some concern in JW, as she was not anxious to see the Defendant and feared that their families would be getting together more often. In fact, before long JW found herself being asked to visit and to babysit IP’s and the Defendant’s children. During one excursion with the children to Yorkdale shopping mall, the situation came to a head for her.

[26] JW testified that the children were misbehaving that day, and that she felt stressed by the entire situation of having to deal with the Defendant and his family. She finally texted her parents a message that indicated to them her anguish. When she later met with her parents, they pushed her to say what was bothering her until she broke down and told them about the incident with the Defendant several years previously.

[27] She stated that she had been reluctant to tell anyone about the incident, fearing in her mind that she would be seen as “a tarnished girl”. She testified that she was especially reluctant to tell her parents for fear that they would be very hurt and angry at the idea that a family member could have molested her in this way. That, in fact, is exactly what transpired; JW described her father flying into a rage at the news of the Defendant’s conduct, and her parents insisting that she report the matter to the police.

[28] Defense counsel submits that although JW had no legal obligation to inform anyone in a timely fashion about the Defendant’s act, the fact that she did not do so should be taken into account in assessing her reliability and credibility. I do not agree.

[29] Not only has the doctrine of recent complaint has been abolished as a legal matter, but the Supreme Court of Canada recognized more than 20 years ago that, “victims of abuse often in fact do not disclose it, and if they do, it may not be until a substantial length of time has passed”: R v W (R), [1992] 2 SCR 122, 136. This observation is applicable to all sexual assault cases, but nowhere is it stronger than where, as here, the complainant is a child at the time of the alleged assault. As Chief Justice McLachlin stated in R v D.D., [2000] 2 SCR 275, 2000 SCC 43, at para 65: “The significance of the complainant’s failure to make a timely complaint must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse.” [emphasis in the original]

[30] Furthermore, the uncontroverted evidence by JW is that she did in fact tell her young cousin, CJ, about the incident shortly after it occurred. It is no fault of JW’s and CJ’s that, as 12 and 10 year olds, respectively, they did not have the ability or the understanding necessary to bring the matter to the attention of proper authorities. This certainly does not reflect adversely on any of JW’s testimony in this trial.

[31] This is, of course, a case where there are two witnesses providing two similar, but not identical accounts of what transpired. Where an accused person has testified in his own defense, as the Defendant has done here, the Supreme Court of Canada’s judgment in R v W.(D.), [1991] 1 SCR 742 applies to the analysis of the evidence. Accordingly, I must proceed in accordance with the instructions that Justice Cory, at para 11, states that a jury would properly have received in a case where credibility is important:

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.

[32] The evidence must be considered in its totality, and “mere disbelief of the accused’s exculpatory account or a mere preference in favour of the complainant’s account does not equate with guilt”: R v L. (C.O.), 2010 ONSC 2755, at para 6. Accordingly, I cannot convict the Defendant if I am “unable to resolve the conflicting evidence and, accordingly, [am] left in a state of reasonable doubt”: R v Challice (1979), 45 CCC (2d) 546, at para 45 (Ont CA).

[33] When asked about whether the Defendant could have been scratching his arm rather than touching his genitals while lying on the upstairs couch, JW replied, “That’s a possibility, but my truth tells me that’s not what he was doing.” In other words, objectively speaking she could have been mistaken, but subjectively she is relaying what she sincerely believes to be true. In my assessment, the same applies to her evidence that the Defendant lightly touched her breast. JW is a fundamentally honest person; she certainly believes that it occurred and that it was a deliberate act on the Defendant’s part. The question is whether, objectively speaking, she could be mistaken.

[34] JW was as insistent that the Defendant caressed her breast as the Defendant was that he shook her shoulder in order to wake her up. Under close cross-examination, JW responded with confidence that, “I know the difference between touching my breast and my shoulder, even as a 12 year-old.” Her words left me with little doubt. JW is certain that her breast was touched by the Defendant that night on the upstairs couch at the house on Manitoulin Island; after hearing her testify, I am as convinced as I can be that that is what occurred. The Defendant in all likelihood lightly touched JW’s left breast.

[35] The Defendant testified that when he came into the house and saw JW sleeping in the armchair, she was rolled up “almost in a ball.” He at first tried to pick her up to move her, but found that she was heavier than he thought and could not manage to lift her. When asked why he tried to physically pick her up, he said in an almost naïve way that she was family, and that he thought of her as a child like his own. It was in this sense that he approached her a short time later on the upstairs couch, lightly shaking her shoulder to wake her up again.

[36] As with JW, the Defendant’s words left me with little doubt. He is certain that he reached for her shoulder and not for her breast; after hearing the Defendant testify, I am as convinced as I can be that that is what occurred. Whatever it was that he touched – and, as indicated, I believe JW that it was her left breast – he did so in the context of reaching for her shoulder.

[37] Was this a sexual assault by the Defendant? In R v Chase, [1987] 2 SCR 293, at para 11, the Supreme Court indicated that a number of factors must be assessed in making that determination:

The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant. The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances. [citations omitted]

[38] I believe the Defendant when he says he was treating JW in a tender manner much like one would treat one’s own child. Even in her subjective and sleepy imaginings, JW could not be certain that he touched her in pursuit of sexual gratification. That, however, does not necessarily end the analysis. As the Ontario Court of Appeal pointed out in R v V. (K.B.) (1992), 8 OR (3d) 20, para 11, aff’d , [1993] 2 SCR 857, “A sexual assault does not require sexuality and, indeed, may not even involve sexuality… In general, sexual gratification, if present, is at best a footnote.”

[39] That said, the Court in V. (K.B.), at para 11, also went on to remark that sexual assault has at its core the imposition of one person’s will forcefully on another: “It is an act of power, aggression and control.” There is nothing in the description of the Defendant waking up JW in a crowded household in order to move her from the upstairs couch that speaks of this kind of power and aggression.

[40] Rather, in assessing all of the circumstances as the Supreme Court instructs in Chase – including the family relationship of the parties, the fact that the house was crowded with people all sleeping haphazardly on the beds and sofas, the darkness of the area where JW was lying down, the lateness of the hour, the Defendant’s state of fatigue and at least mild intoxication, and the fact that he had never before and never since given JW any cause for suspicion or concern – I conclude that the touching of JW’s breast, disturbing as it was to JW, was likely an accident. As the British Columbia Court of Appeal pointed out in R v Dawydiuk, 2010 BCCA 162, at para 29, if it was an accident then by definition it was not an intentional application of force.

[41] Defense counsel points out that this case is in many respects similar to the situation confronted by the Alberta Provincial Court in R v Rimmer, 2003 ABPC 143. There, while playfully tickling the complainant, the accused allegedly touched her vagina and the complainant unfortunately misperceived his intention. Citing the Newfoundland Court of Appeal in R v J. (C.) (1990), 58 CCC (3d) 167, the Provincial Court judge indicated, at para 29, that, “Viewed objectively, the conduct of the accused in that case was determined by the Court to be without sexual connotation, and did not amount to a sexual assault.” The charge based on the accidental touching of the complainant was dismissed for lack of requisite intent.

[42] Likewise, the Defendant’s touching of JW’s breast appears to have been without sexual connotation. By this I mean more than that the Defendant did not touch her seeking sexual gratification, although indeed he did not. I mean that his touching of her was not an exercise in power, control, or dominance over her. It was likely an accidental by-product of the normal, familial act of waking a child up from sleep.

[43] While I cannot be absolutely certain of what occurred, I am left with the impression that the Crown and defense have each presented an honest and credible witness. One was a child and was half asleep at the crucial time, and the other was a partly intoxicated and exhausted adult who was reaching around in the dark. Each appears to have misjudged the other: the Defendant misjudged JW’s size and positioning on the bed, and JW misjudged the non-sexual connotation of the Defendant’s touch.

[44] While the Crown’s burden of proof beyond a reasonable doubt does not mean proof beyond any conceivable or theoretical doubt, the criminal standard of proof has been characterized by the Supreme Court as falling “much closer to absolute certainty than to proof on a balance of probabilities”: R v Starr, [2000] 2 SCR 144, 2000 SCC 40, at para 242. Under the circumstances, the Crown has not satisfied that burden.

[45] I find the Defendant not guilty.

Morgan J. Date: September 19, 2016