R. v. Aitken, 2016 ONSC 6121
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
FRASER AITKEN
Defendant
Heather Cook, for the Crown
David Barrison, for the Defendant
HEARD: September 26, 27, 28/ 2016
Justice B.A. Glass
There is a Publication Ban of the Information That Might Identify the Complainant or Lead to the Identification of the Complainant
Reasons for Judgment
1The Defendant was charged with 2 counts of sexual impropriety.
2Count 1 alleges that Mr. Aitken between June 1, 1997 and October 11, 2000 being a person in a position of trust or authority towards a young person, with a part of his body, for a sexual purpose, directly touched the body of that young person, namely CQ, contrary to Section 153, subsection (1) clause (a) of the Criminal Code of Canada.
3Count 2 alleges that the Defendant between the 1st day of June in the year 1997 and the 31st day of December in the year 2004 did commit a sexual assault on CQ, contrary to Section 271, subsection (1) of the Criminal Code of Canada.
4These charges allege that the Defendant engaged in unlawful sexual activity with the complainant during a time she was a young person and after she was a young person. The complainant was a neighbour who babysat for the Defendant and his wife. Touching through to sexual intercourse are activities alleged to have occurred.
560 acts of sexual intercourse are estimated by the complainant.
6All of the allegations are denied by the Defendant completely. There is no room for mistake.
Issues
7What is the impact of R. v. W. (D.) [1991] 1 S.C.J. 26 upon the analysis of the evidence in this case?
8For count 1, was the Defendant in a position of trust or authority towards the complainant as a young person?
9For count 1, did the Defendant touch the complainant with a part of his body for a sexual purpose?
10For count 2, did the Defendant sexually assault the complainant?
11Was consent given by the complainant?
The Facts
12The complainant was born on […], 1982. The offences are alleged to have commenced in 1997 and continued until October 2004.
13The complainant testified that she met the Defendant and his family in the summer of 1997 and that the Defendant asked if she or her girlfriend babysat.
14Babysitting as much as 3 times a week was claimed by the complainant.
15She had told Mr. Aitken that she had a problem with a boy who did not want to discontinue seeing her. The Defendant was a security officer with his employment and offered to show her some self-defence actions if she had a problem with the boy.
16When Mr. Aitken showed her a move to take a person to the ground, he pulled her onto him and kissed her. Another time, he touched her breast and kissed her. She did not like this activity.
17CQ resisted further physical actions from Mr. Aitken without success. In time, the Defendant placed his hand on her breast above the clothing, later below the clothing, undid her brassiere and fondled her breast and undid her pants. He advanced to removing clothing and had her perform oral sex on him, he performed oral sex on her vagina, inserted his finger into her vagina and eventually inserted his penis into her vagina. She did not think that he ever ejaculated.
18As the sexual activity advanced, she had cried and resisted Mr. Aitken without success. When she cried, he had become annoyed with her and told her that if she could not handle this, he would discontinue this.
19CQ lived across the street and continued to be called and to babysit for the Aitkens. The sexual contact continued. She did not tell her parents because they were strict and she appears to have thought she would get in trouble if she disclosed the activity.
20She did not want to engage in the activity but appears to have felt that she had to do what Mr. Aitken wanted to do.
21The sexual contacts occurred in the house of the Aitkens. The children were in the residence. As the sexual activity advanced to removal of clothing and sexual intercourse, she and the Defendant would be in the family room downstairs. As the children got older, she and the Defendant would be around a corner in the family room so that the children could not see them if they were at the door to the family room. The intercourse occurred on the couch as well as on the floor. CQ would be totally naked. Her clothing would be placed near the bathroom door so that if the children were approaching, she could enter the bathroom to dress and not be seen by the children. She would make sure that she was not in a dishevelled appearance before leaving to go home.
22Her position is that she never consented to any of this activity and that she eventually gave up trying to resist Mr. Aitken.
23Photographs of the penis of Mr. Aitken were filed as exhibits. They purport to show a skin blemish or darkened mark on the foreskin. CQ had seen the penis during her experiences with Mr. Aitken and thought he was circumcised. The penis photo appears to indicate that there was no circumcision and Mr. Aitken testified that he was not. He further testified that the mark was on his penis from teenage years and has faded over the years. CQ could not identify the marking on the photo of the penis.
24Mr. Aitken denied any sexual activity with CQ. There was never any touching of the complainant, never any kissing, never any removal of CQ’s clothing, never any intercourse, never any oral sex of his penis in her mouth or him at her vagina, and never advising her that he was upset with her. Basically, the Defendant testified that no inappropriate sexual conduct occurred.
25Mr. Aitken stated that CQ did babysit for his wife and him, but not to the extent the complainant claimed. The Aitkens had daycare providers and other babysitters in addition to CQ. The mother of Mrs. Aitken had lived with them until her death in the summer of 1998, and the mother did some short term babysitting.
26The timing of the charges commences in June 1997; however, both the Aitkens testified that their son was born in […] 1997 and the mother of Mrs. Aitken was living with the family until she passed away in July 1998.
Analysis
27At the commencement of the time frame of the allegations, Mr. Aitken would have been a person in a position of trust or authority related to a young person within count 1. The alleged sexual contact for both counts would fall within the range of unlawful conduct by an accused person. If there was sexual activity for each count, consent would be required beyond the age of 16 years.
28The whole of the evidence presented leaves me with a reasonable doubt of the allegations. Both the complainant and the Defendant testified clearly and in non-hesitant manners. Both could be described as being believable. In other words, I am left with an interpretation that I do not know which person to believe so that I do not know what happened. This is not a matter of separating and selecting the evidence of one person over the other. That would be an improper way to assess the evidence. Rather, all of the evidence with respect to the essential elements of the two offences must be assessed to determine whether the offences are proven beyond a reasonable doubt.
29Ms. CQ testified that she never consented to any sexual activity for either count and that she expressed that lack of consent to Mr. Aitken. He just continued to do all of the alleged sexual acts not taking no for an answer. If the touching, kissing, intercourse occurred over the 6 years Ms. CQ claimed, the two counts on the indictment are made out.
30Mr. Aitken stated that none of the activity occurred at all.
31Mrs. Aitken said that she and her husband used daycare providers and other babysitters as well as Ms. CQ. Further, she testified they did not use Ms. CQ as much as she claimed.
32Ms. CQ claimed that sexual intercourse occurred an estimated 60 times. She continued to come to babysit as often as 3 times a week for years after the commencement of the actions of Mr. Aitken. She did not have an explanation for just turning down babysitting offers from the Aitkens other than to say her parents might have discovered the sexual activity. She could have avoided further contact with Mr. Aitken.
33The extensive sexual activity in the residence when the children were present is alleged to have continued as the children of the Aitkens grew older and might have walked in the Defendant and the complainant if they were downstairs in the family room with the complainant naked. I find it improbable that this activity was likely to have gone on in such circumstances. Some measure of attempting to prevent discovery would be reasonable, but the way Ms. CQ described it, one would be left with the impression of very little effort to conceal the sexual actions.
34It is obvious that all of the evidence cannot be accurate. With R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] S.C.J. No. 26, the Supreme Court of Canada analyzed a 3-step process when credibility is at issue. Step one is an acquittal of an accused person if the court believes the evidence of the Defendant. Step two leads to an acquittal if the court does not believe the Defendant but is left with a reasonable doubt from that person’s evidence. Finally, step three results in an acquittal if the court does not accept the evidence of the Defendant or have a reasonable doubt about the allegation but on the basis of all of the other evidence is left with a reasonable doubt.
35In R. v. S. (J.H.), (2008) 2008 SCC 30, S.C.J. No. 30 at paragraph 11, the court stated: “As to the second question, some jurors may wonder how, if they believe none of the evidence of the accused, such rejected evidence may nevertheless of itself raise a reasonable doubt. Of course, some elements of the evidence of an accused may raise a reasonable doubt, even though the bulk of it is rejected. Equally, the jury may simply conclude that they do not know whether to believe the accused’s testimony or not. In either circumstance the accused is entitled to an acquittal.”
36In R. v. Nimchuk (1977), 1977 CanLII 1930 (ON CA), 33 C.C.C. (2d) 209 at 210 (Ont. C.A., Martin J.A. stated: “There was, of course, a third alternative, namely, if a reasonable doubt existed, in view of the conflicting testimony, as to exactly where the truth of the matter lay, it would, of course, require an acquittal.”
37I do not know whom to believe. Many of the factors described by the complainant have an air of unlikelihood that the sexual acts occurred at all, as I have described previously. Mr. Aitken’s evidence is clear that nothing happened. He has been forthright and was not tripped up with inconsistencies. He and his wife explained that they did not use Ms. CQ as almost an exclusive babysitter but rather they used other daycare providers and babysitters as well. The opportunity for such extensive activity was not there. If the extent of the complainant babysitting for the Aitkens was much less, even more one might expect the complainant to take advantage of the opportunity not to attend the Aitkens’ home to babysit.
Conclusion
38The charges will be dismissed.
Justice B.A. Glass
Released: September 29, 2016
Note: This decision in writing is the official Reasons for Judgment and takes precedence over the oral reasons read into the record in court.