R. v. S. (J.), 2016 ONSC 7133
COURT FILE NO.: CR-15-10000468-0000
DATE: 20161118
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
s. (j.)
Defendant
Debra Moskovitz, for the Crown
Jeffrey Mazin, for the Defendant
HEARD at Toronto: November 7, 8, 9, & 10, 2016
Reasons for judgment
Low J. (Orally)
[1] There are three counts in the indictment: Sexual assault contrary to s. 271, touching for a sexual purpose contrary to s. 151, and invitation to touch for a sexual purpose contrary to s. 152 of the Criminal Code, R.S.C., 1985, c. C-46.
[2] The alleged offence date in each case is the period from January 1, 2012 to May 1, 2014. The complainant is now 15 years old and was therefore under the age of 16 years at the time of the alleged events. The evidence overwhelmingly establishes that the defendant knew that the age of the complainant was under 16 during the time period alleged as the offence date. Consent is therefore not a defence and is not an issue.
[3] The issue is whether the Crown has proved the touching, application of force, and invitation to touch beyond a reasonable doubt.
[4] The main evidence in support of the Crown’s case is the videotaped interview given by the complainant to police on October 21, 2014 which the complainant adopted as true when she testified at trial. It is supplemented by the complainant’s viva voce evidence. The Crown also called the evidence of the complainant’s mother and of the complainant’s former boyfriend. Their evidence went to the family and social milieu and, in the case of the mother, affirmed that there were at least 2 occasions when the complainant and the accused could have been alone together.
[5] It is troubling that on July 9, 2014, less than 4 months prior to the interview with the police leading to these charges, the complainant fabricated a story that she had been dragged into the back of a van and that she had there been raped by a male person unknown to her, but described by her in detail. The complainant told this story to her mother when her mother saw a hickey on her neck and insisted on her divulging how she got it. The mother threatened to cut the complainant’s hair if she did not tell the truth.
[6] To avoid her mother cutting her hair, the complainant made up the story about having been raped rather than tell the truth as to how she got the hickey.
[7] That story led the complainant’s mother to take the complainant to the police about the alleged rape and to an interview lasting about 90 minutes in which the complainant described in detail the event, the alleged attacker and the van in which she was allegedly raped. She was taken to The Hospital for Sick Children and examined. Shortly thereafter, the complainant went back to the police and admitted to detectives that she had fabricated the story.
[8] The complainant acknowledged in her evidence at trial that she had made up the story that she had been raped. She testified that since then, she had become a better person and was not the same person that she was when she fabricated the story that she had been raped. She credited her experiences at Youthdale with a change in her attitude to lying. The allegations that the complainant has made against the accused came, however, at a date pre-dating her contact with Youthdale.
[9] I do not suggest that a complainant who has fabricated a complaint in the past about the same type of conduct and who has either been found out to be untruthful or who has voluntarily and spontaneously admitted to the lie can never be believed in a subsequent complaint of a sexual offence. It is a circumstance, however, that casts a shadow over the complainant’s credibility and reliability and mandates great caution in evaluating her evidence.
[10] The complainant alleged that there were roughly 10 to 15 occasions on which the accused forced her to perform fellatio on him. She described four specific occasions and she stated that the first incident occurred in the summer when she was 12 after she had completed Grade 6.
[11] The incident happened, she said, when her mother asked the accused to drive the complainant to the school to meet her friends. The complainant’s mother corroborated the request to the accused to drive the complainant to the school.
[12] The complainant gave two versions of the incident at different times. In the videotaped interview, she stated that the accused drove her to the school and, as she was about to get out, engaged her in a conversation concerning a possible liaison and, after expressing reluctance on account of Kr., the accused’s partner, she agreed to go for a five minute drive around the block. According to her video statement, the accused drove into an alley way where the he pulled out a joint, started to smoke and gave it to her to try it. According to that account, the accused then drove to a street where he started by kissing her neck and then pulled out his penis and forced her head down on it to perform fellatio on him.
[13] In the version of the incident that the complainant gave at the preliminary inquiry, the entire incident took place in the alley.
[14] There was no evidence of prior grooming, no evidence that the accused sought a promise of secrecy from the complainant not to divulge the incident to the complainant’s mother or stepfather, and no evidence of upset on the part of the complainant immediately following the first incident of forced fellatio.
[15] According to the video interview, the accused would then make her “do it” every time she went to her “aunt’s” house (meaning the home of the accused and his partner) when the partner was not around and also at her own home when her family held barbeques. These events were not described in detail. In the case of the events at her own home, her evidence was that the accused would go up to her room on the upper floor, ostensibly to check on his baby, D., who would often be placed in the complainant’s room during the gatherings. According to the statement, the accused would go to her room and force her to perform fellatio, ejaculate into her mouth and then just leave. She stated that a lot of the times he would also touch her breast.
[16] The evidence of both the complainant’s mother and of the accused’s partner was that the barbeques usually involved a gathering of roughly 15 people and that the gatherings always involved watching a sporting event on television. In the summer, they would be in the back yard with people going in and out of the house and in the winter they would be indoors. The complainant often had her own friends over at the same time. Contrary to the evidence of the complainant’s mother, the house was not large. It was rather small, having only two bedrooms and a closet on the upper level, one of which was the complainant’s, the other being her brother’s and the rooms only 8 or 10 feet apart. The complainant’s mother and stepfather had their bedroom on the main floor where the bathroom was also located.
[17] The complainant testified that one occasion involved the accused coming into her room where she was entertaining three of her female friends and ordering her to go into her brother’s room where the accused forced her to perform fellatio on him. According to the complainant, she was upset following the event and on rejoining her friends in her own room, lied as to why she was upset, telling them that the accused had just told her that her friend K. had just been thrown out of the house. The accused was the partner of the former partner of the complainant’s step-brother. There is no evidence that he held a position of authority over the complainant. There is no evidence that the complainant considered the accused to be a person whom she was obliged to obey. The evidence that the accused was able to order the complainant in her own home, in the presence of her friends and with her parents in the house, to do something she did not want to do does not ring true.
[18] The complainant gave conflicting evidence as to the final occasion on which she was forced to perform fellatio on the accused. In her video statement she said that the final occasion was when the accused, at her request, pierced her nose. She stated that the incident took place in her home with her parents present and with the accused’s spouse present. She stated that after the accused pierced her nose, she went up to her room because she had to change her clothes. She stated that the accused went up to her room and forced her to perform fellatio. The accused’s partner testified that it was she, not the accused, who pierced the complainant’s nose. This is a detail about which the partner would have no reason to lie and about which she would have good reason to recall since the piercing did not go smoothly.
[19] In evidence at trial, the complainant testified that this was not the final incident and that she concluded that it was not the final incident because she was reminded by looking at photos that she had already had her nose pierced by the time of the baptism of the accused’s son D.
[20] An incident on the eve of the baptism of the accused’s son was the fourth described in some detail and was said by the complainant in her trial evidence to be the last. On that occasion, the complainant and her friend K. were at the home of the accused to help the accused’s partner prepare the house for the following day’s reception. According to the complainant, the incident took place just after the complainant, the accused, the complainant’s partner and K. had all been in the accused’s garage where the accused was cleaning his car and all were drinking and smoking.
[21] The complainant’s statement was: "so ahm --- so yeah I had like a little can o’ beer right, so then --- yeah then we all went back inside and then [the accused] he was inside right and he was like Oh [the complainant] can you bring me ah like my beer, right. So I brought it to him and then like – he closes the door, then he’s like – then he ask me like oh are you a virgin, stuff like that so I was like oh yeah what do you expect, right then he was like oh I’m gonna take your virginity and stuff like that and then like he pulled out his penis again and stuff like that, like". According to the complainant, she performed fellatio on the accused and then walked away. The complainant’s position is that her part in the encounters was not a willing one. It is therefore inexplicable then that in this incident, the complainant does not simply hand over the beer and walk away back to the accused’s partner.
[22] Another conflict in the complainant’s evidence lay in her statement that while she was in Grade 6, the accused sent her texts seeking to give her rides home from her friend’s to which she responded by saying that she was sleeping over in order to avoid having to take a ride with him. It is said that the cell phone on which the texts were received subsequently fell into the toilet. This evidence of seeking to avoid being alone with the accused does not accord with the complainant’s statement that the first incident of sexual touching was in the summer after she had completed Grade 6. It seems unlikely that there would have been a reason for the complainant to want to avoid being with the accused prior to that, given that he was a family friend, and there is nothing in the evidence to suggest that there was any prior animus or fear on the complainant’s part.
[23] The complainant’s narrative is not so inherently outlandish that the events could not have taken place, but neither is it entirely plausible. The events, as described by the complainant, would require a combination of either extreme audacity or extreme recklessness on the part of the accused, remarkable luck that on a public street in broad daylight and in a small house full of people including the complainant’s mother and the accused’s partner, the accused is never caught in flagrante delicto, over 10 to 15 occasions of forced fellatio to the point of ejaculation with a non-consenting minor.
[24] The foregoing, combined with the significant conflicts in the complainant’s evidence and fact that the complainant had fabricated a story only months earlier alleging that she had been raped leaves me with a reasonable doubt whether the accused acted as alleged in the three counts in the indictment.
[25] There will be an acquittal on all counts.
___________________________ Low J.
Date of Oral Reasons: November 18, 2016
Date Released: December 12, 2017
COURT FILE NO.: CR-15-10000468-0000
DATE: 20161118
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
s. (j.)
Defendant
REASONS FOR JUDGMENT
Low J.
Date of Oral Reasons: November 18, 2016
Date Released: December 12, 2017