Court File and Parties

COURT FILE NO.: CR-15-30000488-0000 DATE: 20170512 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – M.S. and R.S.

Counsel: Costas Stratos, for the Crown Alan Sobcuff, for R.S. Chris Hanson, for M.S.

HEARD: March 14, 15, 16, 17, 20, 22, 24, April 18, 19, 20, 21, and May 12, 2017

R.F. GOLDSTEIN J.

Reasons for Judgment

PUBLICATION BAN ON THE IDENTITY OF THE COMPLAINANT

[1] A.R. lived with her mother, L.A., in the G[…] housing complex in Scarborough. They lived on the third floor. L.A.’s mother and A.R.’s grandmother was G.S. G.S.’s husband was R.S. R.S. is A.R.’s step-grandfather. He is one of the two accused individuals in this case. The other accused individual is M.S. M.S. is R.S.’s younger brother. M.S. and R.S. are accused of sexual offences against A.R.

[2] R.S. and G.S. lived in the same building as L.A. and A.R. They lived in an apartment on the ground floor. L.A. and A.R. lived on the third floor with L.A.’s partner, Milton, and her other children. R.S. and G.S. have two daughters together (E.S., S.S.) and one son (R.S. Jr.). L.A. is G.S.’s daughter from a previous relationship. R.S. and G.S. (when she was there) lived in the first bedroom. R.S. Jr. lived in the second bedroom. E.S. and S.S. lived in the large back bedroom. The first and second bedrooms were in a hall opposite the washroom. The apartment also had a kitchen and a living room. There was a door leading outside. R.S. smoked there.

[3] Q.W., Damion, and P.K. were teen-age boys. They were friends of R.S. Jr., R.S.’s son. Q.W., Damion, and P.K. spent a great deal of time in the apartment. They played video games in R.S. Jr.’s room. They sometimes slept over. They were occasionally kicked out by R.S. They drank alcohol and smoked marijuana there. They sometimes stole beer from R.S. The relationships are set out in this chart (see also R. v. M.S. and R.S., 2017 ONSC 1816):

[4] The Crown alleges that between December 1, 2010 and September 27, 2012 M.S. and R.S. carried out various sexual assaults on A.R.:

• Counts 1, 2, and 3 – Alleged Gang Sexual Assault: Q.W. claims to have seen M.S. and R.S. rubbing their penises on A.R. This alleged assault took place sometime in 2011 in a bedroom of R.S.’s apartment.
• Counts 4 and 5 – Alleged Sexual Assault by M.S.: P.K. claims to have seen M.S. sexually assaulting A.R. This alleged assault took place sometime in 2011 in the back room of R.S.’s apartment.
• Counts 6 and 8 – Alleged Sexual Assault by R.S.: P.K. and Q.W. claim to have seen R.S. sexually assaulting A.R. while M.S. slept in the same room. This alleged assault took place sometime in 2011.
• Count 14 – Alleged Voyeurism by M.S.: J.J. claims to have seen M.S. masturbate while watching A.R. urinate. J.J. lived in a different building in the same complex.

[5] The Crown invited acquittals on counts 10 and 11 at the end of its case. The Crown invited acquittals on counts 7, 9, 12, and 13 at the end of all the evidence.

Evidence

(a) Evidence of A.R.

[6] A.R. was born on […], 2006. She provided a statement to the police on March 4, 2014. She was 7 years old and in Grade 2 at the time. She testified in this Court. At the time of her testimony she was 10 years old. She was living with a foster mother and doing well in school. In her testimony she adopted her 2014 statement and it was admitted into evidence pursuant to s. 715.1 of the Criminal Code. Native Family and Child Services removed her and her siblings from L.A.’s care in 2012. A.R. remains in foster care. She and her siblings are now Crown wards.

[7] In A.R.’s 2014 statement a police officer told A.R. that she wanted her to tell her everything that she had told the police. A.R. could not remember what she told the police. She did say that she remembered: “what the people did to me”. She said that they hurt her and she wanted them to go to jail for the rest of their lives. The officer asked her who the bad people were. A.R. said this:

MEREDITH: Thanks. Tell me first who the bad people are.

A.R.: Damion, I don’t know how to spell that.

MEREDITH: Okay, I’ll make my best guess. So, Damion, okay.

A.R.: Umm P.K..

MEREDITH: P.K.. Okay.

A.R.: Q.W.

MEREDITH: Q.W. Yup.

A.R.: And my poppa but I don’t know his name.

MEREDITH: Okay.

A.R.: Pop, I just call him Pop.

MEREDITIH: Call him Pop.

A.R.: Mmhm.

MEREDITH: You don’t know his name.

A.R. Mmhm.

MEREDITH: Okay.

A.R.: Umm the bad grandma.

MEREDITH: The bad grandma, okay.

[8] A.R. was referring to R.S. when she mentioned Pop. P.K. and Q.W. were the two key Crown witnesses at this trial. They were friends with R.S.Jr. The “bad grandma” is G.S., R.S.’s wife.

[9] A.R. said in her 2014 statement that R.S. touched her private part and he didn’t like it. She wanted to say: “stop”. She was too scared. It happened under her clothes. He was watching T.V. at the time. It took place in a room used for sleeping. They were on a bed. He kept on doing it over and over again but it happened one time. There was only her and R.S. in the room. In an earlier videotaped statement, taken in 2011 A.R. stated that nobody had ever touched her private parts.

[10] A.R. also mentioned “the bad boys” in her 2014 statement: Damion, P.K., and Q.W. She said that Q.W. did something in the back room to her sister, but that Q.W. never touched her. She mentioned that Damion took her downstairs but she could not remember what he did. She did not want to talk about P.K. A.R. also described seeing a pornographic film with her “dad”. In cross-examination, she agreed with the suggestion that she had seen Milton watch pornographic films. L.A., A.R.’s mother, confirmed that it was possible. Milton was L.A.’s common law husband, and therefore A.R.’s stepfather. Her biological father had died.

[11] In her 2014 statement A.R. explained what she meant by the “bad grandma”. G.S., she explained, knew that Q.W. had put a finger in her sister’s diaper. She told her daughter, L.A. (A.R.’s mother) but her mother didn’t do anything. Neither did G.S. There was nothing else that made G.S. a bad grandma. She learned about Q.W. and her sister from G.S.

[12] In her evidence in chief in this trial, A.R. mentioned that M.S. had touched her private parts. She could not recall where he did it. A.R. did not mention M.S. touching her in any of her previous videotaped statements. A.R. also stated that she could not remember an incident in a bathroom.

[13] In submissions, Mr. Hanson described the ten year-old A.R. as a “firecracker”, which is an apt description. She is a lively and intelligent young girl. Defense counsel never suggested that she was doing anything other than her best to tell the truth, and I agree with that as well. The problem is that she seems unable to distinguish between things she has been told about and things she experienced herself. Furthermore, it is troubling how it is she came to believe that M.S. had committed an act of sexual touching on her. She had never made that allegation, in either her 2011 or her 2014 statement. The charges of sexual touching by M.S. came about through the alleged observations of Q.W. and P.K. It is a reasonable inference that if A.R. did not directly experience (or remember) sexual touching by M.S, then she learned of the allegations through others.

[14] Crown counsel wisely conceded that it would be unsafe to convict either R.S. or M.S. solely on the evidence of A.R. notwithstanding that there is no legal requirement for corroboration. I agree. I am aware that it is wrong to apply an adult test of credibility to the evidence of children: R. v. W.(R.), [1992] 2 S.C.R. 122 at paras. 24, 26. That said, there are simply too many problems with A.R.’s testimony. I agree that in the circumstances of this case her evidence standing alone cannot support a conviction.

(b) Evidence of L.A.

[15] L.A. is A.R.’s biological mother. Native Family and Child Services removed A.R. and her other children from her home in September 2012. She lived with her partner Milton and her other children during the period 2010-2012. She testified that G.S. and R.S. typically babysat A.R. A.R. slept at their apartment quite a lot – probably over 100 times. A.R. had a good relationship with R.S.

[16] L.A. said that R.S. drank quite a bit. He would walk around the house naked. Sometimes he tried to go to her apartment drunk. M.S. would also drink quite a bit. He would also get naked while drinking. She testified that M.S. once came upstairs and slept on the floor in A.R.’s room. L.A. had a good relationship with Q.W. He would help her with carrying groceries and other chores. She knew that he, P.K., and the other boys frequently smoked marijuana and drank together in R.S.’s apartment. They also drank and smoked marijuana in her apartment.

[17] L.A. testified that her partner Milton physically and verbally abused A.R. He would physically injure her from time to time. It was possible that A.R. was in the same room when Milton watched pornography.

(c) Evidence of E.K.

[18] Ms. E.K. testified that she is A.R.’s foster mother. A.R. has been with her for five years. She testified that A.R. has made certain disclosures to her. She testified as to how A.R. is doing. She also testified that she tries to help A.R. and that she rewards her when A.R. is able to speak about some of the traumatic events in her life.

[19] I found Ms. E.K.’s evidence raised two problems, although not because of any conscious fault on her part. I agree with Mr. Hanson’s comment that the world would be a better place if there were more people like Ms. E.K.. I found her to be truthful and credible.

[20] The first problem is that it is unclear to me what disclosures A.R. made. Ms. E.K. was never asked, except in the most general terms. Were those disclosures about P.K., Q.W., and Damion, whom A.R. identified as having done bad things to her? Or about M.S. and R.S.? Or about other people, such as Milton? It is unclear. Evidence of disclosure would likely be admissible as part of the narrative although not for the truth of its contents: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at para. 37. That would have given some context to A.R.’s evidence. It is also an interesting theoretical question whether the disclosures would have been admissible to rebut an allegation of recent fabrication, given that the recent fabrication alleged was not A.R.’s but that of P.K. and Q.W. I do not need to deal with that question.

[21] A.R. stated (in terms that a ten-year old would use) that Ms. E.K. helped her articulate her thoughts. I think that is likely what happened. The second problem, however, is that A.R. also agreed in cross-examination that that Ms. E.K. put at least some thoughts in her head. I seriously doubt that Ms. E.K. consciously planted thoughts in A.R.’s head, and nobody has seriously suggested that did so. The problem is that A.R. perceives that she did and that impacts her reliability.

Analysis

[22] In R. v. W.(D.), [1991] 1 S.C.R. 742, Cory J. suggested that the analysis of reasonable doubt in a criminal case should follow these lines:

First, if I believe the evidence of the accused, I must acquit.

Second, if I do not believe the evidence of the accused but I am still left in a state of reasonable doubt by it, I must acquit.

Third, even if I am not left in doubt by the evidence of the accused, I must still determine, based on the evidence that I do accept, whether I am satisfied beyond a reasonable doubt of the guilt of the accused.

[23] In R. v. Thomas, 2012 ONSC 6653 at paras. 22-24 my colleague Code J. suggested that the three steps need not be sequential. Rather, he suggested that there are three distinct findings that a trier of fact might come to in a case such as this one. I classify them for simplicity this way:

• Complete acceptance of the exculpatory evidence;
• Complete acceptance of the Crown’s evidence;
• Uncertainty as to which account to believe.

[24] Code J. explained that the exculpatory evidence could not be evaluated in isolation. It must be evaluated in light of the whole of the evidence. Likewise, the Crown’s evidence must be evaluated in light of the whole of the evidence. Thus, a literalist reading of W.D. with slavish adherence to the sequence is not required.

[25] I agree with Code J.’s approach. It is consistent with the Supreme Court’s constant message that the W.D. formula is not some kind of magic incantation. The purpose of the W.D. analysis is to ensure that the trier of fact remains focused on the principle of reasonable doubt. Code J.’s approach is certainly consistent with the following statement in R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5 at para. 6:

This Court has consistently warned that verdicts of guilt should not be based on "whether [triers of fact] believe the defence evidence or the Crown's evidence" (W. (D.), at p. 757). Rather, the paramount question remains whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused…

[26] Code J. developed this approach in R. v. Edwards, 2012 ONSC 3373. That was a summary conviction appeal. In that case the trial judge found that the evidence of the accused was not credible and rejected it. The accused argued on appeal that the trial judge erred by failing to conduct a separate analysis of whether the defence evidence still left him with a reasonable doubt. Code J. found at para. 20 that the trial judge was not required to re-analyze evidence that had already been rejected:

Accordingly, the so-called "second branch" of W.D. does not require a trier of fact to take evidence that has been completely rejected and use it as a basis for finding reasonable doubt. This is not rational. The middle ground in W.D. is an "alternative" to complete belief or complete rejection and arises where a trier cannot "resolve the conflicting evidence" and cannot find "exactly where the truth of the matter lay", as Morden J.A. and Martin J.A. put it in Challice and in Nimchuk. It refers to a state of indecision or uncertainty where the trier is not "able to select one version in preference to the other", as Cory J. put it in W.D.S.

[27] In R. v. Hogg, 2013 PECA 11 a trial judge completely disbelieved an accused and convicted him of sexual assault. The majority of the Prince Edward Island Court of Appeal found that the trial judge, having rejected the evidence of the accused, failed to apply the second step of the W.D. analysis. Jenkins C.J.P.E.I. for the majority, and following a line of authorities in that Court, stated at para. 42:

Proper application of the principles of W.D. involves the trial judge going on from a disbelief of the accused coupled with a belief of the complainant to analyze and consider whether that evidence nevertheless raises, or leaves, a reasonable doubt…

[28] McQuaid J.A. dissented. He approved of the trial judge’s approach to the analysis of credibility. He adopted Code J.’s analysis in Edwards and helpfully summarized it at paras. 132-134:

First, the trial judge could believe the exculpatory evidence of the accused. If so, the trial judge must acquit because the evidence of accused has obviously left the trial judge with a reasonable doubt.

Second, the trial judge might reach the conclusion he or she does not believe the exculpatory evidence of the accused. Therefore, while this evidence standing alone might not leave the trial judge with a reasonable doubt, the trial judge's inquiry must not stop there. A complete rejection of the evidence of the accused does not mean the guilt of the accused is established. The trial judge must look to the remainder of the evidence he or she does believe in order to be satisfied the Crown has discharged the burden of proving the elements of the offence beyond a reasonable doubt. If this evidence does not so prove, the trial judge would be left with a reasonable doubt and an acquittal would have to be entered.

The third conclusion might result in there being a conflict in the evidence of the Crown and the evidence of the accused which the trial judge finds difficult to resolve. In other words, the trial judge is not sure at the end of the trial where the truth lies. For example, the trial judge might not believe the evidence of the accused while at the same time harboring some concerns about the evidence of the Crown where it conflicts with the evidence of the accused. If the trial judge cannot resolve the conflict in the evidence, the trial judge must acquit because all the evidence, including that of the accused, has obviously raised a reasonable doubt as to the guilt of the accused.

[29] The Supreme Court of Canada allowed the Crown’s appeal: R. v. Hogg, 2014 SCC 18. Chief Justice McLachlin stated:

We agree with the conclusion reached by McQuaid J.A., dissenting in the Court of Appeal, that the trial judge did not err in his application of the burden of proof, and there was therefore no basis for appellate intervention.

[30] Thus, the Supreme Court has approved the framework set out in Edwards and Thompson, supra. In my view, therefore, there are three questions to be asked in relation to each alleged incident in this case:

• Do I accept the defence evidence?
• Do I accept the Crown’s evidence?
• Am I uncertain as to which account to believe?

(a) Do I Accept The Defence Evidence?

[31] I cannot accept the defence evidence and it does not leave me in a state of reasonable doubt when evaluated in light of the whole of the evidence.

Evidence of R.S.

[32] R.S. testified that he had a great relationship with A.R. Between 2010 and 2012 she spent time in his apartment. Usually the baby-sitting duties were taken up by E.S., S.S., and G.S. A.R. would stay over once or twice per month on the weekends. She stayed in the back bedroom with E.S. and S.S. Occasionally she slept in the living room on the couch or an air mattress. Sometimes she would sleep in the first bedroom. She would leave the back room and come and sleep with him. He would let her fall asleep and then leave her there. R.S. testified that he has an arm injury and his arms move around when he is in pain and while he is sleeping. He is on ODSP due to a lower back injury.

[33] R.S. denied all allegations of sexual touching of A.R. He admitted to being in the bedroom with A.R. and M.S. on three occasions. He said that he recalled Q.W. looking in the room twice, including once when M.S. was there. He, M.S., and A.R. were all dressed. He recalled in some detail what each of them had been wearing. He said that he had not been drinking. He denied having an alcohol problem. He said that he does not use recreational drugs. He said that Q.W. was banging on the door. On another occasion he also remembered the details of who was wearing what. He also remembered exactly how many beers he had. He said that he preferred to send A.R. back to her own apartment when there was drinking going on. He admitted, however, that she would be in the apartment sometimes when alcohol was consumed. He denied ever walking around the apartment naked.

[34] R.S. further testified that Q.W., P.K., and some of R.S. Jr.’s other friends would spend a great deal of time at the apartment. They played video games. They drank alcohol. Sometimes the boys stole alcohol from him. He did not allow the boys to smoke marijuana in the apartment. Sometimes however, he could smell it on them. He kicked Q.W. out of the apartment. He denied assaulting him. He did admit to confronting Q.W. about the reasons for Q.W. making allegations about A.R. He did not kick P.K. out of the apartment.

[35] I did not find R.S. to be a credible witness. His evidence does not leave me in a state of reasonable doubt. He claimed to remember small details of innocuous events that occurred years earlier. It is simply not believable. I do not believe that R.S. remembers in detail – down to his boxer shorts and the time on a clock – what he was wearing and doing five years earlier on an otherwise unremarkable day or night. He frequently appeared to make up details simply to answer questions, both in chief and in cross. That significantly undermined his credibility.

Videotaped Statement of M.S.

[36] M.S. did not testify but in his videotaped statement he denied all allegations that he touched A.R. in a sexual way. A trier of fact may take into account all exculpatory evidence when conducting the analysis set out in R. v. W.(D.), supra.

[37] M.S. admitted that he touched A.R. once. Crown counsel urged me to find that M.S. had confessed to touching A.R. in a sexual way. I disagree. A full reading of the transcript shows that M.S. knew the difference between sexual touching and non-sexual touching in the sense that he was aware that sexual touching was bad. I am not satisfied, however, that M.S. confessed to sexual touching. He did confess to moving A.R. off when she crawled on top of him. Four-year olds will do that. M.S. said in his statement that he did not want her on him and admitted he touched her thigh as he pushed her off. The Crown did not suggest that this touch was a criminal act. His denial alone in the circumstances of this case is not enough to leave me in a state of reasonable doubt, however. The Crown had no opportunity to cross-examine M.S., which, I stress, does not mean that I am shifting any kind of legal or evidentiary burden on him. What it does mean is that M.S.’s denial on the videotape standing alone is untested. Every case will turn on its facts. In the circumstances of this case, M.S. is entitled to have his denial considered. The denial must be considered in light of the whole of the evidence. In this case, the denial cannot dispose of the charges on its own.

Evidence of G.S.

[38] G.S. and R.S. have been married over 22 years. During 2010-2012 she was going to school and in Calgary for part of that time. She had her own apartment but frequently spent time at R.S.’s place. A.R. slept over a couple of times per week. She mostly babysat A.R. but E.S. did as well. She testified R.S. and M.S. would not be naked around A.R. She also confirmed his evidence about his arm injury. She further testified that A.R. was never around when there was drinking going on in the apartment. She was sent to L.A.’s apartment. A.R. never slept in the same room as R.S. or M.S. If she did wander in then R.S. would get up and leave. Due to his injury he could not be in the same bed as someone else.

Conclusions Regarding The Defence Evidence

[39] Overall, I find that the evidence of the defence witnesses did not leave me in a state of reasonable doubt.

[40] The other defence witnesses were G.S., R.S. Jr., and T.W. The defence witnesses were virtually unanimous that A.R. was never alone in bed with R.S. or M.S. Unfortunately, that contradicts the evidence of R.S. himself. R.S. admitted that A.R. just happened to be in his bedroom on the occasions when Q.W. banged on the door and looked in. None of the defence witnesses would allow for the possibility that this might well have happened. Yet it did on R.S.’s own evidence.

[41] I do accept the evidence of the defence witnesses that G.S., S.S., and E.S. mostly babysat A.R. That part of the defence evidence is un-contradicted and makes sense.

[42] All the defence witnesses testified that R.S. had a rule that A.R. could not be present when the adults were drinking. I find that that claim is false and contrived. I think it very likely that the defence witnesses colluded on this point. Collusion by the defence witnesses impacts their credibility and reliability. Q.W. and P.K. were generally incredible and unreliable as I will explain. I do accept the part of their testimony that A.R. was present when alcohol was consumed in the apartment. All witnesses described a pervasive culture of drinking. A.R. testified quite clearly that she recalled the drinking game “caps” being played in the apartment. M.S. and R.S. played “caps”. I doubt that A.R. would know about “caps” unless she had seen it with her own eyes.

(b) Do I Accept The Crown’s Evidence?

[43] I will deal with the allegations by count. I will make general comments about the credibility of the witnesses as I do so.

Counts 1, 2, 3 – Alleged Gang Sexual Assault by M.S. and R.S.

[44] M.S. and R.S. are individually charged with being a party to a sexual assault contrary to s. 272(1)(d) of the Criminal Code (counts 1 and 2) and charged together with sexual interference contrary to s. 151 of the Criminal Code (count 3).

[45] On September 18, 2012 Q.W. gave a videotaped statement to the police. He was 15 years old. I admitted it into evidence pursuant to s. 715.1 of the Criminal Code. Q.W. has been charged with various petty offences from time to time and received diversion. Given his age and the trivial nature of the offences I find that his record carries virtually no weight.

[46] Q.W. said in his videotaped statement that on one occasion he saw M.S. and R.S. sexually assaulting A.R. in the first bedroom. She was naked. She faced R.S. She was on her side between R.S. and M.S. although in his evidence in chief he said that she was on her back but he could not fully remember. The whole incident did not last long. It is unclear from Q.W.’s videotaped statement and evidence in this trial when this alleged sexual assault occurred.

[47] This incident relies exclusively on the evidence of Q.W. R.S. denied the incident. As mentioned, his evidence does not leave me with a reasonable doubt.

[48] I also do not accept the Crown’s evidence. I cannot convict R.S. based on the evidence of Q.W. He in no way corroborates A.R.’s evidence of sexual touching. I say that for four reasons.

[49] First, I am not satisfied that Q.W.’s observations are reliable. On the occasion when he saw the alleged sexual by R.S. alone (counts 6 and 8 – see below where I deal with that alleged incident) he admits that he had been drinking and possibly smoking marijuana. On this occasion, where he allegedly saw R.S. and M.S. sexually assaulting A.R. together he insisted he had not been drinking or smoking marijuana. I have my doubts: Q.W. agreed that he and his friends frequently smoked marijuana, perhaps on a daily basis, and often drank as well. He said that even at the age of 13 he was an experienced drinker and marijuana smoker. Even if Q.W. was not impaired when he says he saw R.S. and M.S. together he agreed in cross-examination that he only had perhaps a second to make observations. Furthermore, the assault as he described it seems physically unlikely. He said that R.S. and M.S. were thrusting at A.R. A.R. and R.S. were chest-to-chest, yet R.S. was allegedly rubbing his penis on A.R.’s bottom. The four-year-old A.R. was obviously very small. R.S. is a large man. Q.W. agreed in cross-examination that four-year-old A.R. would have been too small for R.S. to touch her with his penis if they were chest-to-chest. In his 2014 statement Q.W. stated that he could not see A.R. and R.S. from the waist down. That was different from his testimony in this trial and in his 2011 statement. He admitted that he might have been confused.

[50] I also believe that Q.W. exaggerated. He claimed to have seen R.S. and M.S. commit multiple sexual assaults on multiple occasions. Yet he could only specifically remember R.S. doing it once separately, and M.S. and R.S. doing it once together. He only described one assault in his September 2014 police statement. His evidence was different yet again at the preliminary inquiry on important, not peripheral matters. He heard about M.S. allegedly spying on A.R. at a BBQ. Q.W. did not observe the incident but he agreed in cross-examination that hearing about it may have influenced his perception of M.S.

[51] Second, I found Q.W.’s explanation for not reporting the sexual assaults very troubling. He says that he and P.K. were outraged, disgusted, and horrified by what they saw. He said that he would never allow his friends to hurt A.R., and he would never hurt A.R. And yet, in cross-examination, Q.W. agreed that he did not go to the police, or try to stop it. He does say that he and P.K. went to a uniformed officer in their complex and were directed to contact one of the detectives. That may well be so but it clearly happened well after a police investigation had commenced. Q.W. did not agree that he and P.K. had discussed the events prior to going to police, but when confronted with an earlier statement that they did so he adopted it.

[52] Obviously there are multiple reasons for a person failing to report a crime: fear, embarrassment, and immaturity might have contributed. There is also no legal onus on anyone to report a crime. Q.W. testified that he is upset with himself that he did not report the crimes or do something to stop them. He eventually made disclosure to his friend’s mother. He then told his father. It is clear that the possibility that A.R. had been sexually abused was known in the community. Even accounting for Q.W.’s immaturity and poor judgment it does not square that he claims to have been so outraged by what he says he saw and yet so indifferent to reporting it.

[53] Third, Q.W. appears to have an animus against R.S. He testified that R.S. threatened him after he made disclosure of the sexual incidents. I think it is quite possible that R.S. threatened Q.W. R.S. said that he kicked Q.W. out of the house for drinking and smoking marijuana. Both of those things could be true. Q.W. also testified that he would have killed R.S. if he were not his friend’s father. He was frightened of R.S., especially when R.S. was drunk. Furthermore, he testified that R.S. had struck him. He agreed that he was upset that R.S. had kicked him and the other boys out of the house because R.S. was tired of their drinking and smoking marijuana. I infer that Q.W. was more upset about R.S. kicking him out of the house than he was about R.S. sexually assaulting A.R.

[54] Fourth, Q.W.’s demeanour and attitude in the witness box was not that of a disinterested witness who merely wanted to report the facts. He was needlessly combative. He is obviously young and immature. He was 13 when he saw what he alleges were the sexual assaults, he was 15 when he gave his first statement to the police, and he was 20 when he testified. He clearly did not understand the importance of telling the truth and relating only what he saw. Moreover, I find that he was either drunk, stoned, or had a hangover (or possibly all three) on the second day of his testimony. He said that he had been out the night before and gotten drunk, and that was why he still smelled of alcohol when he testified. In my observation, however, he was likely impaired when he testified. His answers were slow. He was clearly having difficulties. It is very difficult to have any confidence in the evidence of a person who has so little respect for the court system that he takes the stand drunk, badly hung-over, or high.

[55] Accordingly, I find that Q.W.’s evidence is entitled to little or no weight. There will be an acquittal on these counts.

Counts 4 and 5 – Alleged Sexual Assault by M.S.

[56] M.S. is charged with sexual interference contrary to s. 151 of the Criminal Code (count 4) and sexual assault contrary to s. 272(1) of the Criminal Code (count 5).

[57] P.K. gave a statement to the police on September 18, 2012. He was 15 years old. I ruled that his statement was admissible pursuant to s. 715.1 of the Criminal Code: R. v. M.S. and R.S., 2017 ONSC 1816. He, along with another of R.S. Jr.’s friends, was at one point charged with sexual offences against A.R. Those charges were eventually withdrawn.

[58] P.K. told the police in his 2012 videotaped statement that he witnessed M.S. sexually assault A.R. alone. M.S. took A.R. to the back room. It was almost summer, likely sometime in 2011. M.S. was holding A.R. up against him. She was not wearing underwear. M.S. was rubbing her legs. He testified that G.S. was home but was drinking in the living room with the others in the apartment.

[59] In chief, P.K. said that R.S. was initially like a father to him and his friends. Whenever they needed cigarettes or marijuana or alcohol he would help them. He would let them bring their buddies and their girlfriends over.

[60] As noted, I am not left in a state of reasonable doubt by M.S.’s videotaped statement. What about the Crown’s evidence? As with the evidence of Q.W., I cannot convict M.S. of anything based on the evidence of P.K. On its own it is not enough to convict. His evidence is also not capable of corroborating A.R.’s evidence in chief that M.S. sexually touched her. P.K. is not believable and I do not believe him. I say that for five reasons.

[61] First, I find that P.K., like Q.W., also exaggerated. P.K. told the police that he went to R.S. Jr.’s apartment every Friday and Saturday night. He said that when they were drinking R.S. and M.S. would sexually assault A.R. He and Q.W. saw it multiple times. It was disturbing and disgusting. In cross-examination he immediately backtracked and admitted that he had only seen it twice.

[62] Second, like Q.W., P.K. gave an explanation for failing to report the assaults that was very troubling. His reasons were highly spurious, even for an immature and foolish young man. When Crown counsel asked him why he didn’t go to the police right away he said it was because R.S.’s apartment was a hangout spot. He went there to drink and smoke marijuana. He didn’t want to wreck it. It was such a great place that a teenage boy could smoke and stub out his cigarette on the floor and nobody would care. That was more important than going to the police and protecting a four-year-old. That contrasts with his insistence that what happened to A.R. was disturbing and terrible. In cross-examination he was combative and displayed total indifference to A.R.’s situation. He did not tell the police about drinking alcohol and smoking marijuana on the night he allegedly saw R.S. sexually assaulting A.R. He asked Q.W. to come see the assault because Q.W. was not playing video games at that moment. He didn’t ask their other friend Damion to come see because he was playing video games. The video games were too important to disturb Damion. He also stated that one of the reasons he did not report the incident was because Q.W.’s father could not or would not drive them to the police station. It did not occur to him to make a telephone call.

[63] P.K. rationalized his lack of interest in the sexual assault by explaining that although it was, to use his phrase, “some fucked-up shit”, it was only groping. If there had been penetration he might have done something more. That rationalization is obviously very disturbing.

[64] Third, P.K.’s observations of the family relationships within the apartment are seriously at odds with other accounts. P.K. had no idea whether S.S. or E.S. babysat A.R. or hung around with A.R. A.R. was mostly babysat by S.S. and E.S. and frequently slept in their room. P.K.’s failure to observe this calls into question his reliability as a witness to what occurred in that apartment.

[65] Fourth, P.K. wears eyeglasses. He was not wearing them when he saw both sexual assaults. He was looking in a poorly lit room at night. He took only a short glance both times. It is entirely possible that even if he saw A.R. in the same room as either R.S. or M.S. (or both) that he did not understand what he was seeing. Furthermore, he admitted to the frequent use of marijuana and alcohol, sometimes together (although he said he was not a big drinker). He admitted that he had used marijuana on at least one occasion where he saw an alleged sexual assault. That can hardly have improved his ability to observe. It did not improve his credibility when he made the preposterous claim that he was very clear-headed when he smoked marijuana.

[66] Fifth, P.K.s’ attitude on the stand was simply terrible. He was combative and sarcastic. His reasons for not going to the police were troubling enough for a 15-year old. They are shocking for an adult. His demeanour implied that he thought defence counsel’s questioning on that point absurd. He did not seem to understand how anyone could possibly question his decision to go back to playing video games rather than call 911 or even report a sexual assault of a minor to a teacher or parent. He was not the least bit troubled by his earlier behaviour the way Q.W. claimed to be. No trier of fact could possibly have confidence in this young man’s judgment, observations, or reliability.

[67] There will be an acquittal on these counts.

Counts 6, 8

[68] R.S. is charged with sexual interference contrary to s. 151 of the Criminal Code (count 6) and sexual assault contrary to s. 272(1)(d) of the Criminal Code (count 8).

[69] In his 2012 videotaped statement Q.W. described a sexual assault on A.R. One night at around 1 a.m. in December 2011 he and P.K. and Damion were playing video games in R.S. Jr.’s room. P.K. left the room and then came back and told Q.W. to come with. They looked in the first bedroom. It was dark but there was light from the bathroom. R.S. was naked and thrusting at A.R. A.R. was not wearing anything on her bottom. R.S. had an erection. M.S. was naked on the bed sleeping beside him. That was the first time they saw a sexual assault but it wasn’t the last. He admitted that he and P.K. had been drinking. They each had a mickey of rum although it is unclear how much they drank.

[70] P.K. told the police that he and Q.W. witnessed “something really gross” in the room where R.S. and A.R. were sleeping. It was the back room. He went and got Q.W. They looked together. He said that it happened in 2011. He told the police he had been drinking rum that night. When he looked in he saw R.S. on top of A.R. She was lying on her stomach. R.S. was on top of her rubbing his penis against her bottom. R.S. was partially clothed in jeans. He could not entirely remember what A.R. was wearing but thinks she may have had purple or pink tights on. He then said that R.S. was naked. M.S. was asleep in the room as well. M.S. was also naked. Although P.K. initially said that he only had a short glimpse he later said that he and Q.W. watched for 30 seconds or a minute.

[71] P.K. testified that he filmed this sexual assault on his iPod Shuffle. I find that this evidence is simply untrue. Q.W. did not corroborate this evidence. P.K. was dead certain that he specifically used an iPod Shuffle to film the sexual assault. He was then confronted with printouts from the Apple website indicating that the iPod Shuffle did not have a camera. He then insisted his iPod must have been a Nano and that it had a camera. He also claimed that he had to erase the film of the sexual assault when he sold the iPod. He testified that he sold it because he wanted money to buy drugs. It simply beggars belief that P.K. would claim to be disturbed and disgusted by the sexual assault, take the trouble to film it, and yet erase that evidence. Even accounting for P.K.’s immaturity that was either the act of a liar or an inconceivably foolish person.

[72] As I said, I do not believe R.S. and his evidence does not leave me in a state of reasonable doubt. I do not accept the exculpatory evidence.

[73] Do I accept the Crown’s evidence? This count is the most problematic. As I have noted, I cannot convict based on the evidence of either Q.W. or P.K. The issue on these two counts, however, is more complicated. Q.W. and P.K. both described something similar: a sexual assault on A.R. by R.S. while M.S. slept naked in the same room. There are, of course, variations in their accounts. They also had the opportunity to collude.

[74] Ultimately, therefore, I am left in a state where I am unable to say which evidence I believe. Under those circumstances, R.S. is entitled to an acquittal: R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont.C.A.); Edwards, supra, at para. 18.

Count 14

[75] M.S. is charged with voyeurism contrary to s. 162(1) of the Criminal Code. J.J. testified that he found M.S. in the bathroom of his apartment, masturbating and observing A.R. while she urinated.

[76] I do not accept the defence evidence. In his videotaped statement, M.S. denied that the bathroom incident occurred. He called J.J. a liar and unreliable. Constable Thompson did not ask him many questions about it. R.S. testified that this bathroom incident never happened. G.S. testified that she was at the BBQ but that the incident did not happen.

[77] I believe, however, that an incident of some kind must have happened at the BBQ. R.S. Jr. testified that R.S. came back from J.J.’s and indicated that he would never go back. It is not entirely clear what this incident refers to but I find it likely that it refers to the bathroom allegation. In any event, R.S. did have direct evidence one way or the other. G.S. also said that the bathroom incident never happened. She recalled, however, that J.J. told M.S. to come out of the kid’s room. Thus, the defence evidence does not leave me in a state of reasonable doubt.

[78] I also do not accept Crown’s evidence. I found J.J. to be a difficult witness. He was combative with defence counsel. He admitted that he used to be friendly with R.S. but now has an animus against him. He has a criminal record for assault. He received a peace bond. In my view what must have been a relatively minor assault has no impact on his credibility. I give it no weight. Nothing in his demeanor, however, suggested a disinterested witness who ought to be believed.

[79] J.J. testified that he more or less walked M.S. to L.A., A.R.’s mother. He said that he had a quick conversation with L.A. about the incident. He also said that M.S. was still nearby when they had that conversation. At the preliminary inquiry J.J. testified that M.S. chased A.R. to L.A.’s apartment. It is not clear to me whether he adopted his preliminary inquiry testimony, or whether it was simply used to undermine his credibility.

[80] Three things are clear to me about J.J.’s credibility and reliability: First, J.J. testified to the events at the BBQ somewhat differently than his testimony at the preliminary inquiry. Second, J.J.’s evidence is internally inconsistent. He testified that L.A. left the party and asked him to keep an eye on A.R. He testified that he had concerns about M.S. being around A.R. Why? He testified that he had no thoughts about the fact that M.S. was at his party in the first place. There was no reason for J.J. to suspect that M.S. had any kind of pedophilia-like interest in the children. And yet he claims that he had concerns when he did not know where M.S. and A.R. were at the same time. And if it was the case that he had concerns about M.S., why was he only concerned specifically about A.R. at that point, and less about his own three daughters? Third, it is unclear what prompted him, on his evidence, to barge into the bathroom where A.R. was on the toilet urinating. Given that he had no reason to think anything about M.S. being at the party, that evidence is difficult to understand.

[81] It is also notable that L.A. had no evidence about this incident. I would have thought that it would have been quite memorable for a mother to hear that her daughter had been the subject of voyeuristic masturbation, even considering L.A.’s obvious limitations as a mother. J.J. says he had a conversation with her. If J.K. had discussed the incident with L.A. it would be an important piece of evidence, not because it would have confirmed the truth of J.J.’s evidence but because it would have been a key part of the narrative: R. v. Dinardo, supra.

[82] A.R. testified that she could not recall the incident in the bathroom. In cross-examination she testified that she recalled being in the bathroom with other children while at J.J.’s apartment for a BBQ. She could recall no incident where J.J. burst in, or there were any other adults present.

[83] When I consider the whole of the evidence in relation to this count I cannot be certain which version of events to believe. I therefore cannot be satisfied beyond a reasonable doubt that M.S. is guilty of voyeurism.

Disposition

[84] The charges are dismissed.

R.F. Goldstein J.

Released: May 12, 2017