CITATION: Her Majesty the Queen v. K.O., 2016 ONSC 6874
COURT FILE NO.: CR15-295-0000
DATE: 20161107
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Michael Martin, for the Crown
- and -
K.O.
Greg Deakin, for the Accused
Accused
HEARD: October 24, 25, 26 and 28, 2016
REASONS FOR JUDGMENT
Conlan J.
I. Introduction
[1] K.O. is charged with one count of sexual assault. The formal charge reads:
HER MAJESTY THE QUEEN PRESENTS THAT K.O., between the 01st day of October, 2012 and the 31st day of October, 2012, at the Municipality of Grey Highlands, Central West Region, did commit a sexual assault on S.O., contrary to section 271 of the Criminal Code of Canada.
[2] The real issue in this case is whether the events alleged to form the basis of the crime charged ever took place. Specifically, it is admitted by the accused that he gave a massage to his twenty year-old step-daughter, however, the issue is whether the accused, during that massage, touched her private parts.
[3] It is for Crown counsel to prove beyond a reasonable doubt that the sexual touching alleged in fact occurred. It is not for K.O. to prove that the sexual touching never happened. If I have a reasonable doubt as to whether the disputed events ever took place, I must find the accused not guilty.
[4] I must not decide whether something happened simply by comparing one version of events with another, and choosing one of them. I have to consider all the evidence and decide whether I have been satisfied beyond a reasonable doubt that the events that form the basis of the crime charged, the sexual touching of S.O.’s private parts during the massage, in fact took place.
[5] For the Court to find K.O. guilty of sexual assault, the prosecution must prove each of these essential elements beyond a reasonable doubt:
i. that K.O. intentionally applied force to S.O.;
ii. that S.O. did not consent to the force that K.O. applied;
iii. that K.O knew that S.O. did not consent to the force that he intentionally applied; and
iv. that the force that K.O. intentionally applied took place in circumstances of a sexual nature.
[6] If the Crown has not satisfied me beyond a reasonable doubt of each of those essential elements, I must find K.O. not guilty of sexual assault.
[7] If the Crown has satisfied me beyond a reasonable doubt of each of those essential elements, I must find K.O. guilty of sexual assault.
[8] The accused is presumed to be innocent of the charge. He has no burden to prove anything. That rests entirely with the Crown.
[9] Proof of probable or likely guilt is insufficient. Proof beyond a reasonable doubt requires that the Court be sure of the accused’s guilt before finding him so.
[10] The accused testified at trial and denied the allegations that he touched his step-daughter’s private parts during the massage. If I believe him, then I must find him not guilty of the offence.
[11] If I do not necessarily accept the evidence of the accused but find that it leaves me with a reasonable doubt about his guilt, then I must acquit him.
[12] If I reject the evidence of the accused and find that it does not leave me with a reasonable doubt, I may find him guilty only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.
II. Analysis
A Summary of the Evidence at Trial
[13] This was a short Judge-alone trial. The evidence was received over 2.5 days.
[14] For the Crown, I heard testimony from the complainant, S.O., and from Detective Constable Rayna Page of the Ontario Provincial Police. The officer was called primarily to introduce at trial the audio-video statement given by the accused. No issue was taken by the Defence regarding the admissibility of that statement.
[15] The complainant testified that she was at the family home for her brother’s birthday party. She had been attending university in Guelph at the time. In the evening, after everyone else had either left or gone to bed, she spent some time in the garage with the accused. They talked and smoked cigarettes. She developed a bad headache, nothing unusual as she suffered from migraines. The accused offered and she agreed for him to give her a massage to help relieve the tension – again, nothing unusual as he had done that in the past. They went in to her bedroom in the basement of the house. What started out as a consensual massage on her bed turned in to something that she did not consent to – he touched her bare buttocks and her bare breasts and nipples. He also touched her vagina over her lace, see-through underwear. At one point, she felt with her foot his crotch, over his clothes, and noticed that he had an erection.
[16] After making some comments to his step-daughter about her shaved vaginal area and asking to see her breasts, which she refused, the accused appeared very intoxicated and tired. He nearly fell asleep on her bed but made his way upstairs. She sat on her bed, rocked and cried until she slept. Crying in the Courtroom as she explained this part of what allegedly happened, the complainant stated “that’s when I knew my family was going to fall apart”. She never agreed again to a massage by the accused.
[17] During the course of his statement to the police, much of what his step-daughter alleges was admitted by the accused. Specifically, he admitted to giving her a massage with oil on her bed while she was nearly completely naked. At the conclusion of the massage, he said “you could always give daddy a favour”, meaning a massage. S.O. was twenty years old at the time. He denied, however, any touching of her buttocks or breasts or vaginal area or private parts generally.
[18] For the Defence, I heard testimony from the accused, K.O., and his wife and mother of the complainant, C.O.
[19] K.O., in his trial evidence, admitted certain details of the massage spoken about by S.O. but adamantly denied any touching of her in a sexual manner – whether her buttocks, breasts, nipples or vagina. And he denied that her foot ever came in to contact with his crotch area. He denied further having an erection at any time during the massage.
[20] C.O. testified that, although she had plenty of time to do so and did in fact speak more than once, after the alleged offence date, about the massage in question, her daughter never disclosed to her or to anyone in her presence that K.O. had touched her sexually or inappropriately. Principally for that reason, C.O. does not believe that her daughter’s allegations are true, and thus, her prime objective is to protect her husband, the accused.
Assessment of the Evidence and Findings of Fact
[21] I do not believe the evidence of the accused about whether he touched the private parts of his step-daughter during the massage, nor am I left with a reasonable doubt by that evidence, either alone or in conjunction with the other evidence at trial including the testimony of C.O.
[22] These are my reasons for finding the evidence of the accused to be incredible and unreliable.
[23] First, generally speaking, as to reliability, I found the testimony of K.O. to be uncertain. There were frequent uses of “maybe”, “probably”, “I’m going to say”, and “could have”, as examples. He seemed to be unsure of his evidence, including that related to the date in question.
[24] Second, I am concerned about the accused’s hesitancy to admit the obvious, which adversely affects his credibility. For example, in cross-examination at trial, he was very reluctant to acknowledge that, prior to his statement to the police, his wife C.O. had told him what she had already said to the officer. At first, the accused appeared to deny that altogether. Then he stated that C.O. had “probably” told him what she said to the officer. Then finally, he said “yes” in answer to whether his wife had told him in advance of his statement to the officer what she had already said in her statement.
[25] Third, on the issue of reliability, it is obvious that the accused has a very poor memory of the day and night in question. When he first spoke to the police officer, which was of course much closer to the date in question than now, he admitted that he could not remember much at all about that day. He did not even recall that the massage had a special event attached to it, that is, the accused’s young son’s birthday party (see page 4 of the transcript of the statement).
[26] Fourth, on reliability, I am troubled by the collusion, or at least collaboration, between the accused and his wife. It is quite natural that they have spoken about the allegations and about the day and night in question, but here it goes much further than that. In cross-examination at trial, K.O. admitted that he has relied on C.O. to supplement his own memory of what happened. For her part, C.O. acknowledged during cross-examination at trial that she is struggling trying to separate what she remembers from what others have said.
[27] Fifth, with regard to credibility, the evidence of the accused was plagued by serious inconsistencies. What follows are some examples of the more significant ones.
[28] He was adamant at trial that his wife was inside the garage with him and the complainant for a long period of time, yet he told the police officer that nobody else was in the garage except him and S.O. (see page 6 of the transcript of the statement).
[29] He testified at trial in direct examination that C.O. was in and out of the garage in order to check on the young boy before he went to bed, but he stated in cross-examination at trial that the boy was already being put in to bed by the time that they went out to the garage.
[30] In direct examination at trial, the accused testified as to the exact positions of the two bodies, his and that of the complainant, throughout the massage. In cross-examination at trial, however, when the Crown stated “you don’t really remember your body position while massaging her”, the accused replied “hard to say”.
[31] In cross-examination at trial, the accused testified that there was nothing covering the complainant’s breasts when she turned over from her stomach to her back on the bed, then within less than a minute he stated that her breasts were covered by the towel when she turned over.
[32] At trial, K.O. testified that there was no other conversation about S.O.’s breasts after she said something like “oops, I think I flashed you my boobs”, yet he told the police officer that there was further talk about the breasts because he said something like “I’ve seen a zillion boobs, it’s no big deal” (see page 10 of the transcript of the statement).
[33] That comment to the police officer is also inconsistent with the accused’s trial testimony that he did not even see her breasts.
[34] In his statement to the police officer, at page 12 of the transcript, K.O. stated that the massage came up in discussion “weeks later”, yet he testified at trial that it was mentioned later that same morning.
[35] In direct examination at trial, the accused testified that the complainant frequently demanded money or else she would report him to the police, but in cross-examination that very serious accusation of extortion was watered down to one instance of S.O. allegedly sending a text to C.O.
[36] Finally, in cross-examination at trial, the accused stated that the encounter in the bedroom ended with him saying “you could always give daddy a favour”, something that he had left out of his testimony in direct examination.
[37] Sixth, relevant to both credibility and reliability, I am concerned about the accused’s willingness to guess about his answers on key parts of his testimony. For example, a lot of time was spent at trial about whether C.O. was in the garage with K.O. and the complainant. Eventually, in cross-examination, the accused clarified why his evidence seemed so uncertain on that point by saying that he is just “assuming” that she was there but does not really remember.
[38] Seventh, some of the evidence of the accused makes no common sense, however, he stuck to it nonetheless. For example, on his evidence, S.O. said “what about that daddy massage?” as they were about to part ways after entering the house from the garage. When it was pointed out to the accused in cross-examination at trial that the said question clearly implies that the issue about a massage had been discussed earlier that evening, he refused to acknowledge that and stubbornly insisted that not a word of a massage was uttered inside the garage. Then, to make matters worse, within minutes he went from testifying that he definitely did not offer the complainant a massage inside the garage to stating that he does not recall whether he did or not.
[39] Eighth and finally, I just cannot fathom that the accused cannot remember a single thing about the circumstances surrounding the time that his step-daughter first accused him of raping her and called him a “rapist”. One would think that such a moment would be burned in to the mind of K.O. I am left with wondering whether his memory is even worse than I thought or the accused is unwilling, for some reason, to provide the Court with those details. Either way, it is troubling.
[40] In terms of the evidence of S.O., I was impressed by it.
[41] At the conclusion of the examination-in-chief, after giving a detailed account of what happened to her at the hands of the accused, literally, the complainant stated that, after the accused left her bedroom, she sat on her bed and rocked herself and cried until she fell asleep. Then, crying in the Courtroom, she said “that’s when I knew my family was going to fall apart”. That struck me as being genuine and honest.
[42] In a thorough cross-examination at trial by experienced Defence counsel, not a single inconsistency was brought to light in the evidence of the complainant, not even an immaterial one.
[43] Initially, it appeared that S.O. contradicted the police officer’s evidence when the complainant testified in cross-examination that she and the officer had discussed the facts of the case on the date that she gave her statement, en route from her residence in Wasaga Beach, Ontario to the police station. In re-examination, however, it became clear that there was no contradiction – the complainant had misinterpreted what was being asked in cross-examination. She clarified that she and the officer discussed the facts of the case during her statement at the police station but not on the way there. En route, she only remembers being really nervous and asking the officer how one gives a statement.
[44] At trial, S.O. spoke clearly and bluntly. For example, when describing the feeling of her foot in the crotch area of the accused, she did not mince words or use flowery language. She gave the Court the raw version – “I felt his boner on my foot”. She presented as a sincere yet unpolished witness of high intelligence, the latter being readily apparent from the trial evidence as a whole including that of K.O. and his wife.
[45] I have been careful not to scrutinize the evidence of the Defence any closer than that of the Crown. S.O. was not a perfect witness, either, if such exists. At times, she was prone to verbosity, such as when she gave a very lengthy answer in cross-examination about her history with anxiety. She rambled a little, however, at least she was complete and forthright.
[46] Further, there was one instance where I think that the complainant was guessing without saying so – on the issue of what she was wearing inside the garage. That single frailty on a relatively inconsequential matter, however, does not shake my overall confidence in her evidence.
[47] In closing submissions, Mr. Deakin made a powerful argument about alleged shortcomings in the evidence of S.O. It was a well-delivered address. I have considered the matters raised – the complainant’s history of anxiety problems, her marihuana use, her delayed reporting of the allegations to the police, the alleged implausibility of her account of where the two bodies were during the massage when the sexual touching occurred, her alleged unstable environment in July 2014 when she first reported the allegations to the police, her alleged motive to fabricate, her alleged extortion efforts, the alleged change in her story from the day after the event until when she spoke to the police, and the alleged exaggerations in her evidence.
[48] On the anxiety issues, I see them as irrelevant. There is nothing to suggest that they have negatively affected the veracity of the complainant’s account of what happened in her bedroom.
[49] On the marihuana use, I make the same observation.
[50] On the delayed reporting of the allegations to the police, it is dangerous to make anything of that because there is no expected way for a victim to behave. The delay is especially understandable here as it is clear that S.O.’s mother’s allegiance is strictly to her husband, something likely known to the complainant much earlier than mid-2014.
[51] On whether S.O.’s story is simply unbelievable because it would have been awkward or even impossible for the accused to have done what he is alleged to have done if their bodies were where described by the complainant, I disagree. I see nothing implausible about giving someone a massage, lying on her stomach, while kneeling on the bed beside her; or of reaching forward to touch her buttocks area from the bottom of the bed (either between the upstretched legs and feet or outside of them); or of massaging her neck area more than once in a sitting; or of reaching over her shoulders, sitting up, to touch her breasts from behind.
[52] On the unstable environment and motive to fabricate, I do not accept those submissions because I see no correlation between S.O. struggling in mid-2014 and/or her association with her boyfriend, on the one hand, and her reporting the sexual touching to the police, on the other hand. If anything, those struggles would have prevented her from going to the authorities, not the opposite.
[53] Regarding the extortion matter, it is devoid of merit. Ultimately, the accused’s evidence boils down to one text that S.O. allegedly sent to her mother. I have not seen that text message. C.O. said virtually nothing about it in her evidence at trial.
[54] As to whether S.O. exaggerated her evidence at trial, I do not find that she did. On the example given by the defence in closing submissions, I accept the evidence of the complainant that K.O. was very drunk on the evening in question. It is submitted that the complainant would not have accepted a massage from him if she thought that he was so intoxicated. I disagree. She reasonably relied on her step-father as the arbiter of his own ability to give her a massage.
[55] On the most significant matter of the fact that the complainant did not disclose the inappropriate sexual touching despite speaking to her mother about the massage later that same day and then to the family, including her brother T., months later, it was refreshing that S.O. offered no real explanation for that at trial. She just didn’t.
[56] I think that she was likely too embarrassed or too afraid to tell the whole story. She disclosed right away that something happened between her and the accused but focused on the fact that he ripped the covering off which exposed her breasts. That did not seem to have caused much concern for anyone. Remember that, on C.O.’s evidence at trial, her daughter used the words “you raped me” sometime after November 2013, to which C.O. testified that she laughed. With that kind of reaction at that time, why is it such a surprise that S.O. did not disclose the whole story later that morning or when T. was present?
[57] I pause here to observe that C.O.’s evidence at trial was surprising to me. She cannot be faulted for believing her husband’s denials, however, the degree to which she took pains to discredit her daughter cannot be overstated.
[58] Early in her evidence, despite what seemed like an undisputed fact that S.O. had received a scholarship to attend a prestigious music program at the University of Guelph, something that most mothers would boast about, C.O. sharply rebuked that by saying that her daughter received nothing more than the usual Government grant that a lot of students get.
[59] She went on to describe her daughter as being someone who, objectively, would have been confined to an asylum of sorts – delusional, erratic, unpredictable, unreliable, violent, unfocussed, agitated, flighty, and anxious, was how C.O. described her daughter during her testimony at trial.
[60] One would have thought that C.O. would have taken steps to have her daughter involuntarily hospitalized, although I heard no evidence in that regard.
[61] At one point in cross-examination at trial, being asked simple questions about what her daughter had reported to her earlier about the massage, C.O. blasted that her daughter has said and asked a lot of things, and then she referred to something about her “pussy” and her husband’s “cock”. I did not quite understand the relevance of that or the need for the vulgarity.
[62] She also remained steadfast that there is nothing even remotely concerning or bizarre about the prospect of her husband, in the middle of the night, after drinking, and with everyone else in bed, massaging her twenty year-old daughter with oil while she is lying almost naked on her bed. It was a shocking comment.
[63] As she stated to the police officer in her statement, C.O. is definitely not her daughter’s witness. Her obvious bias adversely impacts her credibility.
[64] The above observations, along with her relatively poor memory of the date in question and the collusion, or at least collaboration, between her and the accused, cause me to place very little weight on the evidence of C.O.
[65] To summarize, I reject the evidence of the accused that he did not sexually touch his step-daughter during the massage, and I am not left in a reasonable doubt by his denials.
[66] C.O.’s evidence adds very little to the analysis.
[67] In terms of the evidence of the complainant, I believe her. Her testimony, assessed in light of all of the evidence at trial, convinces me of the guilt of K.O., beyond a reasonable doubt.
[68] I find that the accused, during the massage, intentionally touched the complainant in circumstances of a sexual nature.
[69] Specifically, he touched, once with his finger, her vagina over the top of her lace, see-through underwear. He, at least three times, touched and massaged her lower bare buttocks with his hands. He leaned forward and, once, caused her foot to rub his erect penis over the top of his clothing. And he, at least three times, touched and massaged her bare breasts, including her bare nipples.
[70] Consent and honest but mistaken belief in consent, on the touching mentioned immediately above, are not issues. As acknowledged by the Defence in closing submissions, those issues are relevant only to other (non-sexual) parts of the massage. Even the accused conceded during cross-examination at trial that, if he had touched the private parts of his step-daughter, she would not have consented to that at the time.
[71] Finally, I must address one other submission made by the Defence in closing. I disagree that the foot-penis touching was or may reasonably have been accidental. In my view, assessed in the context of the overall event and the other sexual touching that did occur, it was intentional. Although clothed at the time, I find that the accused, for a sexual purpose, deliberately caused the complainant’s foot to come in to contact with and rub against his erect penis. It was brief but not fleeting to the point of being potentially de minimis, as implied by the Defence.
III. Conclusion
[72] For all of the above reasons, I find Mr. K.O. guilty of sexual assault.
Conlan J.
Released: November 7, 2016
CITATION: Her Majesty the Queen v. K.O., 2016 ONSC 6874
COURT FILE NO.: CR15-295-0000
DATE: 20161107
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
K.O.
Accused
REASONS FOR JUDGMENT
Conlan J.
Released: November 7, 2016