CITATION: Her Majesty the Queen v. J.C., 2016 ONSC 7538

COURT FILE NO.: 16/934CR

DATE: 20161202

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

Mr. C. Brannagan, for the Crown

• and -

J.C.

Ms. S. Newbould, for the Accused

Accused

HEARD: November 28, 29 and December 1 and 2, 2016

REASONS FOR JUDGMENT

Conlan J.

I. Introduction

1K.B., 15 years old at the time, was living on the streets and using a variety of illicit substances, primarily meth, when she says that she was sexually assaulted by the accused, J.C., a much older man who knew her father.

2Specifically, it is alleged that, between Thanksgiving and December 11, 2015, the complainant was staying off and on at a party place in Port Elgin which belonged to D.W.

3There were three times that she visited or stayed at D.W.’s place during those months. Others were there, too, milling about and partying.

4As for K.B., she was high virtually all the time. She hardly ever slept.

5On one of the three occasions, the evidence is unclear which one, K.B. was with J.C. in the billiards room that he occupied at the party house. She gave him oral sex – his penis inside her mouth. Afterwards, he gave her some meth for no money in return.

6Subsequently, how long after the oral sex the evidence is unclear, they had vaginal intercourse. Afterwards, again, he gave her some meth for no money in return.

7K.B. alleges that J.C. knew how old she was at the time because she told him. He also knew that she had a drug habit and would have sex with men for drugs. The complainant asserts that it was just implied that the meth was being exchanged for the sex.

8The complainant never had sex with the accused again, however, she did speak to him at another location about getting some meth.

9On December 11^th, things hit rock bottom for K.B. She tried to kill herself and was hospitalized. She went in to foster care.

10K.B. is now 16 years old. She takes medication currently that she thinks adversely affects her memory.

The Charges, The Issue, and What the Crown Must Prove

11There are four counts on the Indictment.

12The real issue in this case is whether the events alleged to form the basis of the crimes charged ever took place, in other words, whether there was any oral sex or invitation for that, or any sexual intercourse, or any communication between the accused and the complainant about trading sex for drugs.

13It is for Crown counsel to prove beyond a reasonable doubt that the sexual activity (which term I mean to include an invitation therefor) and communication alleged in fact occurred. It is not for the accused to prove that it never happened. If I have a reasonable doubt as to whether the disputed events ever took place, I must find J.C. not guilty.

14I 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 crimes charged in fact took place.

15Due to the complainant’s age at the time, consent and honest but mistaken belief in consent are not issues for trial.

16The first three counts: J.C. is charged with one count of sexual interference, one count of invitation to sexual touching, and one count of sexual assault, contrary to sections 151, 152 and 271 of the Criminal Code, respectively.

17The alleged offences all occurred between October 31, 2015 and December 11, 2015 at the Town of Saugeen Shores (which includes D.W.’s place in Port Elgin).

18For the Court to find J.C. guilty of sexual interference, the prosecution must prove each of these essential elements beyond a reasonable doubt:

i. that K.B. was under 16 years old at the time (that is not disputed);

ii. that the accused touched K.B.; and

iii. that the touching was for a sexual purpose.

19If the Crown has not satisfied me beyond a reasonable doubt of each of those essential elements, I must find the accused not guilty of sexual interference.

20If the Crown has satisfied me beyond a reasonable doubt of each of those essential elements, I must find J.C. guilty of sexual interference.

21For the Court to find J.C. guilty of invitation to sexual touching, the prosecution must prove each of these essential elements beyond a reasonable doubt:

i. that K.B. was under 16 years old at the time (that is not disputed);

ii. that the accused invited K.B. to touch him; and

iii. that the invitation was for a sexual purpose.

22If the Crown has not satisfied me beyond a reasonable doubt of each of those essential elements, I must find the accused not guilty of invitation to sexual touching.

23If the Crown has satisfied me beyond a reasonable doubt of each of those essential elements, I must find J.C. guilty of invitation to sexual touching.

24For the Court to find J.C. guilty of sexual assault, the prosecution must prove each of these essential elements beyond a reasonable doubt:

i. that he intentionally applied force to K.B.; and

ii. that the force took place in circumstances of a sexual nature.

25If the Crown has not satisfied me beyond a reasonable doubt of each of those essential elements, I must find the accused not guilty of sexual assault.

26If the Crown has satisfied me beyond a reasonable doubt of each of those essential elements, I must find J.C. guilty of sexual assault.

27As count 4 is different than what we typically see in these cases involving sexual offences, I set it out here in its entirety.

J.C. further stands charged that between October 31^st, 2015 and December 11^th, 2015 at the Town of Saugeen Shores in the said region did communicate with K.B. for the purpose of obtaining for consideration, the sexual services of a person under the age of eighteen years contrary to Section 286.1(2) of the Criminal Code of Canada.

28For the Court to find J.C. guilty of count 4, the prosecution must prove each of these essential elements beyond a reasonable doubt:

i. that K.B. was under 18 years old at the time (that is not disputed);

ii. that the accused communicated with K.B.; and

iii. that the purpose of that communication was to obtain sexual services from her, for consideration (to trade sex for meth).

29If the Crown has not satisfied me beyond a reasonable doubt of each of those essential elements, I must find the accused not guilty.

30If the Crown has satisfied me beyond a reasonable doubt of each of those essential elements, I must find J.C. guilty of obtaining sexual services for consideration from a minor.

The Presumption of Innocence

31The accused is presumed to be innocent of the charges. He has no burden to prove anything. That rests entirely with the Crown.

32Proof 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.

33J.C. testified at trial and denied the allegations that there was any sexual activity between him and K.B. or any communication between them about exchanging sex for drugs. If I believe him, then I must find him not guilty of the offences.

34If 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.

35If 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.

Multiple Charges

36Each charge must be considered on its own. The verdicts do not necessarily need to be the same across the various counts on the Indictment.

37For example, although unlikely perhaps because of the overall credibility and reliability assessment that must be undertaken, J.C. could be acquitted on counts 2 (invitation to sexual touching) and 4 (obtaining sexual services for consideration from a minor) but found guilty on counts 1 (sexual interference) and 3 (sexual assault). Those verdicts could flow from findings that there was no oral sex or invitation for that and no exchange of meth for sex or communication about that, but there was sexual intercourse.

The Trial

38This was a short trial – 2.5 days in duration, including final submissions by counsel. It began in Owen Sound and then continued in Walkerton during the week of November 28, 2016.

39For the Crown, I heard from the complainant, K.B., and a 25-year old female named Andrews, who befriended the complainant in the summer of 2015 and who was staying at the party house in Port Elgin for a while during the alleged offence period.

40Andrews corroborated the evidence of K.B. in two respects – that J.C. knew the complainant’s age, and that there was an occasion when K.B. was behind a locked door with the accused in the upstairs of the Port Elgin house.

41I pause here to note that I was impressed with the evidence of Andrews. I believe her. Interestingly, neither side encourages me to do otherwise.

42For the Defence, I heard from the accused, J.C., currently 48 years old.

43He was unshaken in cross-examination. He denied that he ever supplied any drugs to K.B. He denied that he ever traded sex for drugs or suggested that to K.B. He denied that she ever gave him oral sex or that he asked for it. He denied that they ever had sexual intercourse.

44The accused made some admissions at trial against his own self-interest, in fact, things that he offered that he could have denied. As examples, he stated that he knew K.B.’s age at the time, and he admitted to staying at the Port Elgin house in order to hide from the police who had warrants for his arrest.

45Those admissions are to the credit of the accused.

46According to J.C., he was hiding out at the Port Elgin party place because he was wanted by the police. While there for a couple of weeks, he did some renovations inside. He was using and dealing meth at the time. On one occasion, K.B., whom he knew when she was a child and whom he knew to be 15 years old at the time, watched part of a movie with him in the room that he was occupying upstairs at the party house. That was in the last week of November 2015. Nothing sexual happened.

II. Analysis

47I cannot think of any specific reason as to why the evidence of J.C., not inconsistent in any way and not shaken at all in cross-examination, would not be sufficient to leave this Court with a reasonable doubt, however, this case can best be decided on the basis of the third branch of the W.(D.) analysis.

48Even if I rejected completely the evidence of the accused, which I do not, the case for the Crown could not possibly be said to amount to proof beyond a reasonable doubt.

49It was a valiant effort put forward by Mr. Brannagan, and it may be that K.B. was victimized by J.C., however, the frailties in her evidence preclude any chance that this Court could be sure about any of the criminal allegations.

50In assessing the evidence of K.B., I must remember that she was at the material time and still is a child.

51While 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 56 (SCC), 1992 2 S.C.R. 122.

52K.B.’s evidence is so replete with inconsistencies that it cannot be safely relied upon. It is neither credible nor reliable. The sheer number of inconsistencies is staggering. Even accounting for those that may be considered immaterial, there remain some crucial ones.

53The following are some examples.

54At one point in direct examination at trial, the complainant stated that the sexual activity between her and the accused occurred over two nights. She became unsure of that in cross-examination.

55In direct examination at trial, the complainant’s evidence was that the sexual activity between her and J.C. occurred during her second visit to the party house. In cross-examination at trial, she indicated that she was not sure whether it happened during the second visit. Later in cross-examination, she testified that it could have been during the second or the third visit. At the preliminary inquiry, she had testified that the sexual activity happened during the third and not the second visit.

56In direct examination at trial, K.B.’s evidence was that it was during her second visit to the party house that she first met the accused there, while at the preliminary inquiry she testified that she met J.C. at the house during her third stay there.

57In cross-examination at trial, at one point K.B. stated that she has “no idea” if the accused was at the Port Elgin house at all during her third stay there, which of course would make it impossible that she met him then or had sex with him then.

58When asked by Defence counsel why she would have stated at the preliminary inquiry that the sexual activity with the accused occurred during her third trip to the party house, K.B. replied that she was “guessing” when she gave that evidence at the earlier judicial proceeding.

59At the very beginning of the second day of her cross-examination at trial, K.B. stated that she had reviewed again her pre-trial evidence, which “triggered” some memories, and had made some notes and was fairly certain that the sex with the accused happened during her third stay at the Port Elgin house (not during the second visit which she testified to in direct examination at trial). In fact, contrary to what she indicated at Court two days earlier, the accused was not even present at the house during her second stay there. In addition, the sexual activity between her and the accused occurred during the same day or night (not over two nights as stated in direct examination at trial). A few moments later, clearly frustrated with her memory, K.B. relented and said that the sexual activity was either during the same day or night or on consecutive days/nights.

60One must take with a grain of salt K.B.’s certainty on the second day of her cross-examination that the sex with the accused happened during her third visit to the Port Elgin house. After all, she had stated pre-trial that J.C. was not even at the house, at all, during that third visit.

61In cross-examination at trial, the complainant testified that J.C. and someone named “Wade” were both at the party house at the same time, although at the preliminary inquiry for a related accused person (not J.C.) she had testified that they were not.

62In direct examination at trial, the complainant described a trip to Underwood, Ontario that happened during her third stay at the party house. In cross-examination, she indicated that the said trip was maybe during the second visit to the house. Moments later, still in cross-examination, she admitted that she knows very well that the said trip to Underwood was during the third visit to the house.

63In direct examination at trial, K.B. stated that, in Underwood, she spoke with the accused about him paying her for sex, however, he refused to pay her any money. In her December 21, 2015 police statement, however, the reason that she gave for the accused refusing her invitation was that she was too young.

64In cross-examination at trial, K.B. was challenged as to why she did not tell her brother’s roommate about what had happened with the accused when she did tell that person about something untoward that occurred between her and another man, D.W. The complainant explained that she talked with her brother’s roommate before she even knew J.C.

65In her examination-in-chief at trial, however, the complainant had testified that the sequencing of the events was the sex with the accused, followed by the incident between her and D.W., followed by her chat with her brother’s roommate. That would have made it impossible that she did not know J.C. when she spoke with the roommate.

66In direct examination at trial, K.B. stated that she went back to the party house after she left her brother’s place, where she talked with his roommate. In her December 21, 2015 police statement, however, she indicated that she went to her mother’s place after leaving her brother’s.

67In her December 11, 2015 police statement, the complainant stated that none of her “business” happened at the party house in Port Elgin, and all of her “clients” were strangers. At trial, she acknowledged directly to the Court that both of those assertions were false.

68In her police statement given on December 21, 2015, K.B. stated that she had sex with J.C. twice, which in the context in which it was said surely meant sexual intercourse, in my view. Her evidence at trial was that there was one incident of intercourse.

69In direct examination at trial, K.B. testified that the sexual intercourse between her and the accused involved two positions – him on top of her, and him behind her. At the preliminary inquiry, however, she had testified that it was in one position only – him behind her.

70In direct examination at trial, K.B. alleged that the accused wore a condom and ejaculated during the intercourse. Two days later, in cross-examination, she denied that she testified that the accused had ejaculated. That surprised me, thus, I reviewed my notes again. She had clearly testified two days earlier about the ejaculation.

71In direct examination at trial, the complainant testified that she had oral sex with the accused one time. At the preliminary inquiry, however, she testified that it happened on two occasions.

72At trial, K.B. testified that the oral sex happened before the intercourse with J.C. At the preliminary inquiry, however, she stated the opposite.

73Many of the above items, particularly those dealing with which visit it was when she met J.C. and had sex with him at the Port Elgin house, are issues of timing and sequencing and are not important. Others, like whether K.B. went to her mother’s or back to the party house after speaking with her brother’s roommate, are also minor or peripheral. These types of inconsistencies are not surprising given the tender age of the complainant.

74I point them out, however, because of their sheer number. It is somewhat unusual, even with a child witness, to have the trial testimony so full of inconsistencies, of any kind.

75I also highlight them, even those that are minor, because they are indicative of a witness who is clearly guessing at the answers. That is not a hallmark of trustworthiness.

76Other contradictions noted above, particularly the last several (beginning with the false assertions in the December 11, 2015 police statement), are not at all minor or trivial or dealing with peripheral matters. They adversely affect the weight that can be attached to K.B.’s allegations against J.C.

77Further, K.B. testified that she is currently on medication that likely hampers her memory. It became obvious during her testimony at trial that the complainant has a terrible memory of what was happening in the latter few months of 2015, so much so that between the first and second days of her cross-examination she struggled to review, again, her prior statements to the police and her evidence at the preliminary inquiry with a view to making notes to serve as reminders to her when the cross-examination resumed.

78I suspect that K.B. was suffering from serious memory problems when she testified at the preliminary inquiry as well, which likely explains why she thought that she had been in the hospital and had given a statement to the police in November 2015 when in fact it was the following month.

79Her chronic drug use during the alleged offence period, coupled with virtually no sleep during those months, and combined with the current medication and its effect on her memory, all create a cocktail of unreliability that contributes to reasonable doubt.

80Finally, I am also concerned about K.B.’s credibility in light of her prior conduct in another unrelated criminal case. Her then boyfriend was charged with assaulting her on the basis of her statement to the police. She later recanted that statement, leading to the charge being withdrawn by the Crown. She told someone at the Victim Witness Assistance Program that she had lied to the police because there had been no assault.

81In summary, I cannot safely rely upon the evidence of K.B. Andrews’ testimony, although corroborative on two points, does not change my assessment.

82Even absent any evidence from the accused, I would have been unsure as to whether he had done the things alleged.

83On the totality of the evidence at trial, which includes the unshaken evidence of J.C., the case for the Crown is further weakened.

III. Conclusion

84For all of the above reasons, on all counts, I find J.C. not guilty.

Conlan J.