CITATION: Her Majesty the Queen v. R.A., 2016 ONSC 6867
COURT FILE NO.: CR15-147-0000
DATE: 20161107
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Peter Leger, for the Crown
- and -
R.A.
Bruce Ritter, for the Accused
Accused
HEARD:
October 18, 19, 20, 21 & 27, 2016
REASONS FOR JUDGMENT
Conlan J.
I. Introduction
[1] This case involves a rather sordid tale of alleged sexual impropriety on the part of an adult male firefighter against the fourteen year-old daughter of his friend and fellow fireman.
[2] R.A. is charged with two counts of sexual assault. The formal charges read:
Count 1: HER MAJESTY THE QUEEN PRESENTS THAT R.A. on or about the 3^rd^ day of April, 2014 at the Township of Georgian Bluffs, Central West Region, did commit a sexual assault on B.R., contrary to section 271 of the Criminal Code of Canada.
Count 3: AND FURTHER, THAT R.A., between the 1^st^ day of September 2013 and 02 April 2014 at the City of Owen Sound, Central West Region, did commit a sexual assault on B.R., contrary to section 271 of the Criminal Code of Canada.
[3] The real issue in this case is whether the events alleged to form the basis of the crimes charged ever took place.
[4] It is for Crown counsel to prove beyond a reasonable doubt that the events alleged in fact occurred and that R.A. was the person involved in them. It is not for the accused to prove that these events never happened.
[5] If I have a reasonable doubt about whether the events alleged ever took place, I must find R.A. not guilty.
[6] Of course, the verdicts need not be the same on counts 1 and 3.
[7] For the Court to find the accused guilty of sexual assault, the prosecution must prove eachof these essential elements beyond a reasonable doubt:
i. that the accused intentionally applied force to B.R.; and
ii. that the force that he intentionally applied took place in circumstances of a sexual nature.
[8] Because of the age of the complainant at the relevant time, consent and honest but mistaken belief in consent are not issues for trial.
[9] R.A. is also charged with two counts of sexual interference. The formal charges read:
Count 2: AND FURTHER, THAT R.A., on or about the 3^rd^ day of April, 2014 at the Township of Georgian Bluffs, Central West Region, did for a sexual purpose, touch B.R., a person under the age of sixteen years, directly with a part of his body, to wit: his penis, contrary to section 151 of the Criminal Code of Canada.
Count 4: AND FURTHER, THAT R.A. between the 1^st^ day of September 2013 and 02 April 2014 at the City of Owen Sound, Central West Region, did for a sexual purpose, touch B.R., a person under the age of sixteen years, directly with a part of his body, to wit: his penis, contrary to section 151 of the Criminal Code of Canada.
[10] For the Court to find the accused guilty of sexual interference, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
i. that B.R. was under sixteen years old at the time (there is no dispute
about that);
ii. that the accused touched B.R.; and
iii. that the touching was for a sexual purpose.
[11] As I indicated previously with regard to the sexual assault charges, the real issue in this case is whether the events alleged to form the basis of the crimes charged ever took place.
[12] It is for Crown counsel to prove beyond a reasonable doubt that the events alleged in fact occurred and that R.A. was the person involved in them. It is not for the accused to prove that these events never happened.
[13] If I have a reasonable doubt about whether the events alleged ever took place, I must find R.A. not guilty.
[14] Again, the verdicts need not be the same on counts 2 and 4.
[15] R.A. has no burden to prove anything. He is presumed innocent of every charge that he is facing. That never changes. In the end, although the Crown need not prove guilt to an absolute certainty, proof beyond a reasonable doubt is more than proof of probable or likely guilt and requires the Court to be sure of the accused’s guilt before finding him so.
[16] As the accused testified at trial and denied any sexual touching of B.R., the following instruction is important.
[17] If I believe R.A.’s evidence, I must find him not guilty. Even if I do not believe his evidence, if it leaves me with a reasonable doubt about his guilt (or about an essential element of the offence charged), I must find him not guilty. Even if his evidence does not leave me with a reasonable doubt of his guilt (or about an essential element of the offence charged), I may convict the accused only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.
II. Analysis
The Trial
[18] This trial was heard over five days in October 2016, including final submissions by counsel.
[19] For the Crown, I heard from (i) the complainant, B.R., (ii) her friend at the time, A.H. (“A.H.”), and (iii) an expert witness in the areas of cellular telephone data extraction, analysis and interpretation, Detective Sergeant Matt Sutherland (“Sutherland”) of the Ontario Provincial Police.
[20] There was no objection by the Defence to the admissibility of the expert evidence and no quarrel with the qualifications of Sutherland.
[21] For the Defence, I heard from (i) the accused, R.A., (ii) K.W., the accused’s current live-in girlfriend and mother of his yet unborn child, (iii) Ri., the accused’s father, and (iv) S.N., the accused’s former girlfriend.
[22] Of course, I may accept all, some or none of any witness’ evidence.
The Bottom Line
[23] I have concerns about the credibility and reliability of the accused’s evidence, especially with regard to (i) the electronic communications between him and the complainant and (ii) whether B.R. was at the Bass Lake property on April 3, 2014.
[24] I also have concerns about the credibility and reliability of the complainant’s evidence as to what happened on the two alleged offence dates.
[25] I find A.H. to have been the most impartial and believable witness called at trial, by either side.
The Evidence of Child Witnesses
[26] In assessing the credibility and reliability of the evidence of B.R., the complainant, I have kept in mind that she was a child both at the time of the alleged offences (she turned 14 years old in September 2013) and at the time of the trial (17 years of age).
[27] While the evidence of children is not to be subjected to a lower standard of proof than that of adults in criminal proceedings, it is often wrong to apply adult tests for credibility and reliability to the evidence of a child. After all, the mental development, understanding, memory and ability to communicate of a child may well be different than that of an adult, making the presence of inconsistencies in the child’s evidence, especially on peripheral matters, less important. A common sense approach must be taken. R. v. W.(R.), 1992 CanLII 56 (SCC), 1992 2 S.C.R. 122.
What Precipitated the Alleged Sexual Assaults
[28] I find as a fact that every electronic communication contained within Sutherland’s report, Exhibit 10 at trial, alleged to be from the complainant to the accused or from the accused to the complainant, is in fact a communication between those two persons.
[29] That includes the telephone calls (page 15 of Exhibit 10), the WhatsApp messages (pages 16-17 of Exhibit 10), and the BlackBerry Messenger communications or BBMs (the screen shots of which are at pages 19-28 of Exhibit 10).
[30] I further find that every electronic communication disclosed in Exhibits 7 and 8, the logs of telephone calls and other forms of messaging alleged to be from the complainant to the accused or from the accused to the complainant, is in fact a communication between those two persons.
[31] On the latter conclusion, that was not disputed by R.A. in his testimony at trial.
[32] On the former, the accused testified that he did not send those messages to the complainant. To choose just one example to illustrate the point, the accused denied in his evidence at trial that he messaged B.R. asking her to take a picture of herself in front of a mirror and exposing her breasts (page 25 of Exhibit 10, the bottom right screen shot).
[33] I reject the evidence of R.A. with regard to the electronic communications. I find that it is contrary to the combined evidence of the complainant and Sutherland, both of whose evidence I accept with regard to the electronic communications.
[34] First, I find it simply unbelievable that a fourteen year-old girl concocted such a sinister and sophisticated plot to manipulate messages on her cell phone to make them appear that they were between her and the accused and then take screen shots of them, whether to send them to her friends in an effort to impress them with her relationship with an older fireman, or to frame R.A., or both.
[35] Second, there is simply no reliable evidence at trial to support the notion that the electronic communications in question are fake. It is rank speculation. Even the accused testified that the messages do not appear “doctored” to him. The Defence points primarily to the evidence of Sutherland who testified that some of the screen shots show a green telephone icon in the top bar, next to the name of the accused, while others do not. Sutherland fairly acknowledged that the explanation for that could be that the user of the complainant’s cell phone had modified the contact information for the accused, or it could mean that someone other than R.A., with a different PIN, sent BBMs to the complainant’s cell phone under the name of the accused. What Sutherland did not say is that the latter is anything more than a theoretical possibility, or that he found any actual evidence in his examination of B.R.’s cell phone that would support that possibility.
[36] Third, the content of many of the messages in question are consistent with them having been between the accused and the complainant when considered in light of the other evidence at trial. As just one example, at page 22 of Exhibit 10 is a screen shot of a communication from the accused to the complainant which speaks about B.R. having S.’s penis out in the truck. The evidence of A.H., which I accept, corroborates that event having occurred on April 3, 2014.
[37] I agree with the Crown that the evidence demonstrates that, by the Fall of 2013, the complainant and the accused had developed a relationship of sorts, fueled at first by B.R.’s infatuation with firefighting and firefighters, and escalating, mainly through electronic communication on cell phones, to something more provocative, with sexual overtones.
[38] I also agree with the Crown that the electronic communications corroborate some of the evidence of the complainant, such as whether she was with the accused on April 3, 2014, for example. I agree further that the electronic communications demonstrate a clearly inappropriate type of dialogue between a young girl and a much older man.
[39] The question is whether the accused touched the complainant in a sexual manner.
Counts 3 and 4 – The Alleged Bedroom/Hallway Incidents
[40] The complainant testified at trial that, sometime in the Fall of 2013, the accused was at her home drinking after a fire call. B.R.’s father was also there, along with her mother, her friend Tristan, and other persons including other firefighters.
[41] The accused, intoxicated, came in to B.R.’s bedroom in the basement of the home. His cell phone had died, and he needed a charger for it. He tried to hug her, but she dodged it. He also touched her breast.
[42] B.R. and her friend went upstairs. Within a few minutes, so did the accused. B.R. and the accused met in the hallway upstairs. He pushed her up against the wall and “fingered” her by putting his hand down her pants and underwear. She had “no problem” with that.
[43] The accused, in his testimony at trial, denied any sexual touching of B.R. and specifically denied the particular allegations outlined above. He did admit to having been at B.R.’s house with other firefighters, on occasion.
[44] I am not at all sure that the accused sexually assaulted B.R. at her family home.
[45] First, to accept the evidence of the complainant about the sexual touching on that day would mean that she lied extensively to the police during a fairly lengthy interview on April 13, 2014. I am deeply troubled by that. On April 13^th^, she never disclosed any sexual touching by the accused of any sort, ever. The Crown submits that her failure to do so is understandable in that she was young, loved the accused, wanted to protect him, had already erased the contents of her cell phone at his instruction, and was brought to the police by her parents under a false premise. The fact remains, however, that, on April 13^th^, she was given ample opportunity to disclose even a whiff of her later allegations and did not.
[46] Even her father had told B.R. on April 13^th^ that the only thing that would ruin their relationship is if she lied to the police. In those circumstances, notwithstanding the factors identified by the Crown, the complainant had good reason to tell the truth.
[47] Imagine if the situation was reversed. An accused in similar circumstances confesses to the police, repeatedly, during an interview. He later states that it was all lies – he never did it. The Crown would be urging the Court to find the accused to be a totally incredible witness.
[48] Second, on April 14, 2014, the next day, back at the police station for another interview, during which the complainant did disclose sexual activity between her and the accused, the complainant attempted to downplay the extent of her dishonesty the day before. For example, she told the police officer that she had not been asked about the accused the day before (see page 3 of the transcript of the April 14^th^ interview, at the bottom of the page). That is patently false.
[49] Third, putting aside minor, inconsequential matters, there are significant inconsistencies in what the complainant has said about the alleged sexual touching at her house.
[50] At the preliminary inquiry, she testified that the accused undid the zipper on her pants in order to be able to digitally penetrate her vagina in the hallway (page 49 of the transcript), while at trial she said that he did not unzip her pants. That is a direct contradiction on a material matter – the alleged act itself.
[51] Further, in direct examination at trial, B.R. never mentioned that the accused brazenly grabbed her breast in her bedroom downstairs (she stated only that he tried to hug her), while previously the complainant had alleged that he grabbed her breast. At trial, she eventually adopted her prior evidence on that point and confirmed that he had grabbed her breast. There is no explanation for why the complainant omitted, in direct examination at trial, an important part of what happened, in fact something that would by itself constitute a sexual assault (the grabbing of her breast in her bedroom), and confused that with something very different – an attempted hug.
[52] In addition, B.R. never testified at trial, in direct or cross-examination, that the accused had slapped her buttocks in the basement of the home, while she did testify to that allegation at the preliminary inquiry (page 45 of the transcript). Again, that is not a minor or peripheral matter. The slapping of her buttocks by the accused, even if meant as a joke, would have been highly inappropriate given their respective ages at the time and his relationship with her father.
[53] There was also a glaring inconsistency in the way in which the complainant described the accused’s level of intoxication at her home that day. In direct examination at trial, she testified that the accused was “really intoxicated”. At the preliminary inquiry, she had stated that he was not under the influence of alcohol and then clarified that to say that she could not tell if he was drunk at all (pages 123-124 of the transcript). It appeared to me that she was, at trial, attempting to exaggerate the accused’s condition in order to explain why he would do something so forceful as to put his fingers inside her vagina in the hallway with others were inside the house.
[54] In the end, having rejected the evidence of the accused on the electronic communications that he stated were not from him, the Court would be hard-pressed to then accept his denials about whether he sexually touched the complainant at her home, or even find that his evidence leaves me with a reasonable doubt on counts 3 and 4.
[55] But, on the third branch of the W.(D.) analysis, having regard to the serious frailties identified above concerning the evidence of the complainant, I am not at all sure that the accused sexually touched B.R. in her bedroom or in the hallway of her home.
Counts 1 and 2 – The Alleged Sexual Intercourse at Bass Lake
[56] The complainant testified at trial that she and her friend, A.H., on April 3, 2014, were with the accused and his friend, S., at the accused’s place near Bass Lake.
[57] The accused invited B.R. upstairs for a tour. She suspected that they might have sex, and she was “okay” with that. The other two remained downstairs in the basement.
[58] The accused and B.R. went in to his bedroom upstairs. She was lying on the bed on her back, naked. He got on top of her, also naked. They had vaginal intercourse. He stopped and put a condom on. They continued having vaginal intercourse. She turned on to her stomach because it hurt. He stated that he could not go any further because of her age and because he was friends with her dad. That was the end of the sexual activity between the two of them.
[59] The accused, in his testimony at trial, denied any sexual touching or intercourse with B.R. and specifically denied that she and her friend, A.H., were ever at his house at Bass Lake.
[60] I was impressed with the evidence of A.H.. She testified succinctly and clearly. She has no interest in the outcome of this case. She is not aligned with either B.R. or R.A. In September 2016, she got out of this area to live with her father and finish her schooling in Cambridge, Ontario, probably in part to avoid the kind of shenanigans that she found herself a witness to on April 3, 2014. She did not exaggerate her evidence at trial. She demonstrated a good memory of what she saw and heard on April 3, 2014. And she, unlike the complainant, went to the police station on her own in April 2015, with no prodding from anyone, to clear her conscience and fill in the details that she did not volunteer previously in her initial statement to the police.
[61] It is sometimes difficult to explain why a witness impresses the Court. What I can say is that, immediately after her evidence concluded at trial, I wrote in my notes that “A.H. is a very good witness”. Upon further reflection on the totality of the evidence at trial, my assessment has not changed. I believe A.H..
[62] Other than Sutherland, A.H. was the only person who testified at the trial who has no axe to grind, no bias or self-interest and no allegiance to either side. Where her evidence conflicts with the evidence of anyone else, I prefer the evidence of A.H..
[63] In saying that, I recognize that there is a single instance of potential difficulty with the evidence of A.H.. That is her failing to mention at trial, until presented with it in cross-examination through the use of her prior statement to the police, the dress of the complainant when she and the accused came back downstairs at Bass Lake. A.H. had told the police that B.R. was not wearing a top over her bra when she first appeared. She did not mention that in her evidence at trial.
[64] I am not bothered by that. At most, it amounts to one inconsistency by omission on a relatively minor matter. It does not change in any way my assessment of A.H.’s evidence generally.
[65] Based on the evidence of A.H., I find that she and B.R. were indeed at the accused’s Bass Lake property on April 3, 2014. The girls had previously enjoyed some time in the complainant’s hot tub. B.R. had one alcoholic drink, and A.H. had part of one drink. The complainant stated that she was texting or messaging with the accused. R.A. then picked them up in his truck, near the complainant’s home. Once inside the basement of the Bass Lake home, the complainant asked the accused to take her upstairs to see his bedroom. They left the basement area and returned a few (maybe five) minutes later. The accused then drove the girls back to the complainant’s home. S. was also in the truck. In the back, the complainant tried to hook-up with S., saying “let me suck your dick”. In the truck, B.R. was faking like she was drunk. A.H. was embarrassed by it all and just wanted to get back to the complainant’s place. Once there, B.R. stopped acting like she was drunk.
[66] A.H. did not see or hear what happened between B.R. and R.A. in those few minutes that they were out of the basement of the Bass Lake home.
[67] But she was told by the complainant what happened, that very night. And what she was told eviscerates any chance that the Court could accept the evidence of B.R. as to what happened at Bass Lake.
[68] In direct examination at trial, A.H. testified that B.R. told her, that night, that she tried to hook-up with the accused but he refused, and she did not know why. Specifically, the complainant tried to suck his penis. In cross-examination, A.H. was forthcoming with Mr. Ritter in supplying further details as to exactly what the complainant had said. According to A.H., whom I believe, B.R. told her specifically that there was no sexual intercourse between her and the accused. She either tried to or did in fact give the accused oral sex, but it was really quick because he kept pushing her away.
[69] That is what the complainant told her friend, A.H., that night. And that is not what the complainant, in her testimony at trial, said happened at Bass Lake. And, further, it is not what the complainant stated at trial that she told A.H.. In fact, B.R. testified that she told A.H. everything that happened, which presumably would have been sexual intercourse. The complainant denied at trial that she ever told A.H. that there was no sexual intercourse or that she just tried to or did in fact give the accused oral sex.
[70] It is impossible to reconcile the evidence of A.H. and the evidence of B.R. in a way that helps the Crown. Either B.R. lied to her friend that night, which makes no common sense, or she told her the truth. If she told her the truth, then what she testified to at trial cannot be relied upon.
[71] In addition, besides the incongruity between the evidence of the complainant and that of A.H., there are other frailties in the evidence of B.R. concerning the alleged Bass Lake incident.
[72] Like the alleged house incident, B.R. said not a word about her allegations when she spoke to the police on April 13, 2014.
[73] Further, what B.R. alleged at trial happened on the bed at Bass Lake is materially different than what she described in her April 14^th^ police statement. At trial, all of the sexual intercourse happened while she was on her back. In her police statement, some of the intercourse occurred after she turned on to her stomach (pages 37-38 of the transcript). At trial, B.R. stated that the intercourse ended when she turned on to her stomach; she knows that because it hurt and that is when the accused appeared unwilling to continue. In addition, her reason for turning on to her stomach at all seems unclear on B.R.’s evidence. She stated at trial that it was because it hurt, while earlier she stated that it was because she did not want to face the accused (page 38 of the preliminary inquiry transcript).
[74] There are numerous other inconsistencies relied upon by the Defence, both with regard to the alleged house incident and the Bass Lake visit, however, I find those to be immaterial, especially in light of the complainant’s young age.
[75] There are also other issues raised by the Defence to support its submission that the complainant should not be trusted, such as whether it was possible or not to take the interior stairs from the basement of the Bass Lake home to the main floor in April 2014 (Ri., the accused’s father, was called by the Defence to say that it was not possible, while the complainant stated that they used those stairs on the date in question), and whether B.R. had ever been inside that home before April 2014 (S.N. was called by the Defence to say that she had, while B.R. denied that she had).
[76] It is not necessary to resolve those issues. Although I appreciate why the Defence called witnesses K.W., Ri. and S.N., their evidence is unnecessary to come to the conclusion that the charges have not been proven beyond a reasonable doubt.
[77] Having rejected the evidence of the accused on the electronic communications that he stated were not from him, I neither accept nor am left with a reasonable doubt on counts 1 and 2 by the evidence of R.A.
[78] On the third branch of the W.(D.) analysis, however, considering the totality of the evidence at trial that I do accept, and having regard most particularly to the evidence of A.H. and the concerns identified above that relate to the evidence of the complainant, I am not at all sure that the accused sexually touched B.R. at his Bass Lake home.
III. Conclusion
[79] For all of these reasons, I find the accused not guilty on all counts.
[80] As a final message to B.R., I would not want her to think that the Court has concluded that she was not victimized by R.A. or that her allegations are complete fabrications. The criminal standard of proof is a relatively high one, and the acquittals are simply a result of that. I have a reasonable doubt.
Conlan J.
Released: November 7, 2016
CITATION: Her Majesty the Queen v. R.A., 2016 ONSC 6867
COURT FILE NO.: CR-15-147-0000
DATE: 20161107
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
R.A.
Accused
REASONS FOR JUDGMENT
Conlan J.
Released: November 7, 2016