R. v. M., 2017ONSC5537

CITATION : R. v. M., 2017ONSC5537

COURT FILE NO.: CR 16-0983

DATE: 2017/09/22

BY ORDER OF THIS COURT MADE UNDER SECTION 486.4 OF THE CRIMINAL CODE NO INFORMATION THAT COULD IDENTIFY THE VICTIM OR A WITNESS MAY BE PUBLISHED IN ANY DOCUMENT OR BROADCAST OR TRANSMITTED IN ANY WAY

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen

AND

M.

BEFORE: Mr. Justice Pierre E. Roger

COUNSEL: P. Bowles for the Crown

C. Rogers for the Accused

HEARD: July 10-13, 2017

REASONS FOR DECISION

ROGER, P.E., J.

Introduction

[1] This trial proceeded on two counts, alleging that:

(1) The accused, Mr. M, sexually assaulted P, contrary to section 271 of the Criminal Code; and

(2) Mr. M touched P with his finger for a sexual purpose, contrary to section 151 of the Criminal Code.

[2] Mr. M is 51 years old. The complainant, P, is a teenager. At the time of the alleged incident P was 15 years old. She was almost 16 years old when she gave a statement to the police, and had turned 17 prior to the time of trial.

[3] P alleges that on December 19, 2015, Mr. M touched her breast and later touched her vagina. Mr. M says that he never did.

[4] The issue in this trial is whether the Crown has proven its case beyond a reasonable doubt. Central to this determination is the credibility and reliability of the witnesses.

Background

[5] The parents of P separated some time ago. P and her younger sister live equally with both parents. However, for some time previously the children lived with only their father, as in August 2014 their mother, Ms. L, was incarcerated for 12 months, having pled guilty to sexual assault involving a minor.

[6] In September 2015, Mr. M and the complainant’s mother, Ms. L, met. Their relationship progressed, and by early November 2015, Mr. M lived with Ms. L. All witnesses agree that Mr. M had a good relationship with both P and her younger sister, and that he was closer to P.

[7] P stated that two incidents occurred on the same day, three or four days before Christmas 2015 (the date is not in dispute and I therefore make reference to December 19, 2015). There is some controversy as to when the first incident is alleged to have occurred and for purposes of providing background information, I will simply say that the first incident occurred before dinner.

[8] P alleged that while she and Mr. M were hugging before dinner, Mr. M put his hand under her shirt and moved it up to touch her breast. With regards to the second incident, P alleged that after dinner, while the family was all seated on one sofa (from left to right facing the sofa sat: younger sister; Ms. L; Mr. M, with his right arm around Ms. L and left arm around P; and P), Mr. M carefully and secretly moved his left hand down her left side, under her clothing, in between her legs, and rubbed her vagina. At some point, Ms. L paused the movie and P left to go to her room. P’s younger sister (who was 12 years old at the time of trial) and P’s mother did not observe any of the alleged incidents.

[9] Later that night, sometime after midnight, P sent Mr. M a text message. While the meaning of the text message is in dispute, it reads:

I didn’t like what happened earlier [.] I didn’t want that to happen and it fucked me up in the head. Plus I don’t want you with my mom if you even thought about doing what you did earlier. So I want you to leave. I don’t feel comfortable with you here. I’m sorry but I need you to leave and never come back.

[10] Before leaving for work the morning of December 20, the accused asked to speak to P. The complainant and Mr. M disagree on what was discussed. P stated that she told Mr. M that this was entirely inappropriate and that Mr. M asked P not to tell her mother before Christmas in order not to ruin Ms. L’s first Christmas back with her family. P stated that she insisted that Mr. M tell her mother immediately after Christmas. Mr. M stated that P was upset because the night before she had caught him smoking crack cocaine in the garage, that the morning of December 20 they talked about his cocaine addiction, and that if P wanted to tell Ms. L he would prefer they tell her only after Christmas.

[11] The complainant testified that she was “really mad”, that she felt “a burning hatred for the guy”, and that she “kept my distance from him and I really didn’t talk to him”. However, there is disputed evidence as to whether or not P kept her distances and there are some contradictions between her evidence, including her videotaped statement given to the police on June 30, 2016, (which was admitted into the evidence at trial under section 715.1 of the Criminal Code) and the rest of the evidence at trial, which will be discussed in the credibility analysis.

[12] In February 2016, the complainant told her mother of the alleged incidents. P told her father in June 2016 and shortly after she attended to give a statement to the police on June 30, 2016.

[13] The accused testified that he is a long time drug addict, which was confirmed by his daughter, D. Mr. M indicated that on December 19 he worked long hours, and that he returned home late (leaving home at about 7:30 and returning at about 8:00 p.m. or 8:30 p.m.). He stated that he had some cocaine which he was looking forward to using later that evening. He denied inappropriately touching the complainant.

[14] The accused stated that after watching the movie and making certain that everybody was in bed, he went into the garage to cook and smoke crack cocaine. He stated that while he was smoking cocaine, the complainant came in the garage to smoke a cigarette and that she immediately stormed out of the garage when she saw what he was doing. Later that night he received a text message from the complainant and he testified that because of the effect of cocaine he was too paranoid to answer. However, as indicated above, he spoke to the complainant about the text message the morning of December 20. It is not disputed that before he left for work he asked the complainant’s mother, Ms. L, to send P down to talk to P about her text message. He indicated that he told P that he was an addict, that he would not smoke cocaine again, and that if she wanted to tell her mother he would prefer they tell her after Christmas in order not to ruin her Christmas.

[15] The accused stated that he wanted to keep his drug use a secret from his daughter who would not allow him to see her and her children if she knew that he was using drugs. He admitted that following December 19, for a few days, the complainant was upset and did not speak to him like she previously did, but this he stated lasted only until December 25, 2015.

[16] He stated that he broke up with Ms. L early in February 2016 (most likely on February 9) at the urging of his daughter, D, who would not allow him to see his grandchildren if he did not leave Ms. L and did not stop using drugs. In April 2016, he secretly resumed his relationship with Ms. L and was sleeping there on weeks that the children were not with Ms. L. He stated that they kept their relationship secret because his daughter, D, did not want him to see Ms. L whom she blamed for enabling his drug use. On June 30, 2016, he was arrested on these charges at Ms. L’s house. The accused admitted his criminal record; which contains eight convictions from 1989 to 2014, including a crime of dishonesty (assault, possession of narcotic for purpose of trafficking, false pretenses, assault, robbery, disguise with intent, and theft).

[17] The complainant’s father testified that P was successful in school and happy in 2014. He indicated that the expected return of P’s mother (during the summer 2015) stressed P, and that in the beginning of 2016, he noticed changes with P. He stated that the complainant was acting out, that she had difficulties at school and that by the summer 2016 she was getting involved with drugs. He also stated that in January 2016, he received a text message from P asking whether she could live permanently with him. He assumed that there had been an issue with her mother and he asked P to work it out with her mother. Later, in about March 2016, the complainant’s father was surprised to be contacted by D, the accused’s daughter. The complainant’s father stated that D expressed concerns that the accused was abusing drugs and that the complainant’s mother, Ms. L, was likely enabling the accused’s drug use. In June 2016, the complainant told her father and her father’s girlfriend about the alleged incidents. The complainant’s father reported this to the authorities and P attended to give a statement to the police.

[18] The complainant’s mother, Ms. L, admitted her criminal record (sexual intercourse with a 13 year old boy) and confirmed her period of incarceration from August 2014 to August 2015. The accused was her boyfriend and they lived together from the fall of 2015 until February 2016. She indicated that a couple of weeks after they had separated, P and a friend of P approached her and told her about the incidents (the friend of P actually told Ms. L). She indicated that she would have supported P if P had wanted to go to the authorities, but that she did not pursue this because of her personal experience (she did not want the complainant to go through this process), and that she felt this was not significant enough since it did not involve “sex per se”. She stated that she minimized these events because “her crime was so much bigger”.

[19] Ms. L stated that she spoke to the accused about these events in April 2016; this is disputed by Mr. M. She indicated that she told the accused what she had been told by P’s friend (that the accused had touched P’s breast and vagina). She stated that he indicated falling in and out of sleep on the couch that evening and that he did not remember. She was not certain if he said or if she formed the impression from talking with him that he did not know whom he was touching, but she at least formed that impression. She indicated that Mr. M. stated that he had received a text message from P one night that P was unhappy about something that had happened on the couch. Ms. L understood that the accused had spoken with P the following morning about not ruining Christmas and she stated that he had thought that everything was now okay because he had observed that the complainant had warmed up to him.

[20] This evidence aligned with Ms. L’s perception that this had been an accident. The accused did not mention to Ms. L that the text message related to P catching him smoking cocaine in the garage late during the evening of December 19. Ms. L was not aware of two separate incidents but she was aware that the allegations of P were that Mr. M had touched P’s breast and groin area. Ms. L confirmed that the accused was working long hours at the time and specifically on December 19 and 20, 2015; Mr. M did not have a valid driver’s license and she was driving him to and from his jobsite during the weekends, and she had invested some money in his masonry business.

[21] Ms. L admitted to secretly resuming her relationship with Mr. M in April 2016, until the time of his arrest on June 30, 2016, because “she needed him”. She also indicated that P was with the wrong crowd and had difficulties in school, but stated that this had started during the fall of 2015. She was aware that P had pre-existing psychological issues.

[22] D, the accused’s daughter, testified. She is 28 years old, has four children, and works for a governmental agency. She indicated, quite clearly and convincingly, that the accused is a long time drug addict. She hosted a dinner party on December 25, 2015, and observed the complainant clinging to her father (the accused), rubbing his shoulders and arms in ways that seemed to D to be inappropriate. D had previously seen her father together with the complainant and the complainant’s family and D indicated that the complainant was often clinging to the accused. The accused’s daughter also testified that she was worried that the complainant’s mother was enabling her father’s cocaine addiction. She therefore gave her father an ultimatum of no further contact with Ms. L and no drug use if he wanted to continue seeing his grandchildren. Most likely on February 9, 2016, she called the police, asking a police officer familiar with her father to have a coffee with the accused. She then also contacted the complainant’s father to relay her concerns that the accused and Ms. L were using cocaine (D sent the complainant’s father quite a detailed text message dated February 9, 2016, which she read on the record). D understood that the accused left Ms. L about February 9, 2016, and stated that Mr. M briefly lived with her thereafter. D could not remember why the accused left after only a few days.

[23] L, the accused’s son, also testified. He is 25 years old and works full-time. In addition to his full-time job, in December 2015 he also worked weekends with the accused, helping his father finish a masonry job in Kanata (about 30 minutes from Ms. L’s home). The accused’s son confirmed that they worked and finished this job in Kanata during the weekend of December 19-20, 2015. He believed that they worked approximately from 7:00 or 8:00 a.m. until about 7:00 p.m.

Applicable law

[24] To establish sexual assault, the Crown must prove beyond a reasonable doubt each of the following essential elements of that offence: the intentional physical touching of the complainant by the accused; and that the touching was of a sexual nature. In this case, P was less than 16 years old at the time of the alleged events and therefore consent to the activity is not an available defence (see section 150.1 of the Criminal Code).

[25] To establish sexual interference, the Crown must prove beyond a reasonable doubt each of these essential elements: that the complainant was under 16 years of age at the time; that the accused touched the complainant; and that the touching was for a sexual purpose.

[26] Proof beyond a reasonable doubt is a fundamental principle of our justice system. As indicated by the Supreme Court of Canada, proof beyond a reasonable doubt is a doubt based on reason and common sense that logically arises from the evidence or absence of evidence. A reasonable doubt is not far-fetched or frivolous, it does not involve proof to an absolute certainty or proof beyond any doubt, which is often impossible. On the other hand, it is not enough for the Crown to prove that the accused is probably guilty; probable or likely guilt is not proof beyond reasonable doubt (see R. v. Starr, 2000 SCC 40, 190 D.L.R. (4th) 591, at para. 231).

[27] An accused is presumed to be innocent and the burden of proving his or her guilt beyond a reasonable doubt is on the Crown.

[28] The starting point for any credibility analysis where an accused testifies is the analysis in R. v. W. (D). If I believe the accused's evidence, then I must acquit. If I do not believe the accused’s evidence, but if it leaves me with a reasonable doubt about his guilt, then again I must acquit. Finally, even if the accused’s evidence does not leave me with a reasonable doubt concerning his guilt, I can convict only if the evidence that I accept proves his guilt beyond a reasonable doubt. (see R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] A.C.S. No. 26, at paras. 27-28)

[29] The W.(D.) analysis applies where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case. In such instances, the Court “must relate the concept of reasonable doubt to those credibility findings” such that to have reasonable doubt it is not necessary “to believe the defence evidence on that vital issue; rather, it is sufficient if – viewed in the context of all of the evidence – the conflicting evidence leaves [the Court] in a state of reasonable doubt as to the accused’s guilt” (see R. v B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114).

[30] Conversely, a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible Crown evidence may constitute a sufficient explanation for the rejection of the evidence of an accused (see R. v. T.M., 2014 ONCA 854, 318 C.C.C. (3d) 153, at para. 68; R. v. J.A., 2010 ONCA 491, 261 C.C.C. (3d) 125, at paras. 22-23).

[31] Credibility relates to a witness’s veracity, whereas reliability concerns the accuracy of the witness’s testimony. Both require a careful assessment (see R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at paras. 41-44).

[32] As this is relevant to the positions of the parties, I note that post-event demeanour is only a factor that may or may not be considered by the court; however, carefully as “there is no inviolable rule on how people who are the victims of trauma like sexual assault will behave” (see R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 at para. 65; R. v. J.A., 2010 ONCA 491, 261 C.C.C. (3d) 125, at para. 17). I note as well that corroboration is not required for a conviction (see section 274 of the Criminal Code).

[33] Finally, as this was raised by the Crown in its submissions, I note that the standard of proof is not to be lowered when dealing with the credibility of children; rather, a contradiction in a child’s testimony should not necessarily be given the same effect as a similar flaw in the testimony of an adult: “While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it” (see R. v. B.(G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30, [1990] S.C.J. No. 58, at paras. 47-48). However, in this case the complainant was 15 at the time of the alleged events and she was 17 at the time of trial, and quite confident, such that she was not a young child to which the above might apply.

Analysis

[34] Applying the W. (D.) analysis, and for reasons outlined below:

• I do not believe the evidence of the accused;

• I am not left in reasonable doubt by the evidence of the accused; and

• On the basis of the evidence which I accepted, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

First incident

[35] The defence gave evidence that the accused returned home late on December 19, 2015. He argues that the first incident could not have happened earlier in the day because the accused was working until late that evening.

[36] The complainant provided a fairly detailed description of the first incident. She indicated in her statement to the police that the first incident occurred “no like earlier on, I think it was that day, he, we, we were like hugging and stuff on the couch and then he went, put his hand up my shirt and was grabbing my boobs… and later that day, that night, that’s when, that’s when he continued (p. 10 of her statement)… so he hugged me and I’d be like yeah okay, let’s have a hug and he just started putting his hand up, and in my shirt and under my bra and I was just kind of like what the fuck” (p. 13).

[37] I accept the evidence of the accused that he worked long hours on both December 19 and 20, 2015. His evidence on this is supported by that of his son, L, and by the evidence of Ms. L. However, even if the accused and Ms. L arrived home as late as 7:30 or even as late as 8:30 p.m. on December 19, I do not believe that this means that the first incident did not occur and this does not leave me with a reasonable doubt.

[38] The evidence was that this family typically had dinner at about 8:00 p.m. and in her statement P also indicated, “yeah, my mom was in the kitchen and he was um, on the couch with me, we were, I can’t remember what we were doing, we could have been watching Netflix or getting it started, and whatever” (p. 13). Moreover, P indicated at trial that the first incident happened before dinner, less than half an hour before dinner, on the couch. I do not view this as a contradiction in the evidence of the complainant’s and this leaves time for the first incident to have happened, irrespective of whether the accused arrived at 7:30 or 8:30 p.m.

Second incident

[39] The accused testified that the second incident could not have happened considering the physical circumstances and layout of the second incident as alleged by the complainant. He argues that there is no evidence that it was physically possible for Mr. M to reach down to the vagina of P with his left hand, while his right arm was around Mrs. L.

[40] From my observations of the witnesses at trial and from the evidence of the circumstances and layout of how they were positioned on the sofa, I do not believe or accept the evidence of the accused that the second incident could not have happened and I am not left with a reasonable doubt. I have no reasonable doubt that Mr. M could have reached down if he intended to do so.

[41] Mr. M argues that the complainant’s description of the duration of the second incident is unlikely; that these types of events typically last 30 seconds not 30 minutes.

[42] In her statement, P indicated that the entire second incident, which included Mr. M moving his hand progressively and slowly down to her vagina and rubbing her vagina with his fingers, lasted a long time, which she estimated at 30 minutes. However she also indicated: “… but I wasn’t looking at the clock when it was happening and I wasn’t really paying attention but like we were watching a movie so I guess 30 minutes but I mean it was like not the, that was happening the whole time, it was like it was the getting to that particular thing so like moving his hands further down just stuff like that” (p. 17).

[43] At trial the complainant provided a fairly detailed description of the second incident. She explained that Mr. M kept moving his hand closer and closer, carefully, and secretly. She described that his left hand progressed along her left side down into her clothing, moving closer, eventually moving to her underwear, that he then started to do stuff with his fingers, rubbing up and down on her vagina.

[44] I can easily see how this may have seemed like a long time and, as a result, I am not concerned with P’s description of this timeframe.

[45] Mr. M also argues that if the first incident occurred before dinner, it is surprising that P voluntarily sat right beside Mr. M to watch the movie. He gave evidence and points out that there was another sofa to the immediate left which P could have used (see Exhibits 2 and 6). The Crown argues that P likely tried to ignore the first incident, likely tried to act normally, and was likely still processing the fact of the first incident.

[46] In her statement to the police the complainant indicated that she initially tried to ignore the first incident: “…in my mind it was like I feel like this might happen, then it did happen and then I thought that it was like he just did that and I was like okay (unintelligible) tried to ignore it and then that night when he did it, more stuff I was like nope, no, no, no, no gotta say” (p.14).

[47] The above convincingly explains why so soon after the first incident the complainant nonetheless sat right beside the accused to watch a movie: she was trying to ignore it.

Text message

[48] The accused argues that the complainant’s text message of December 20, 2015, reproduced above at paragraph 9, is ambiguous; that this message supports the accused’s version of events. The printout of all relevant text messages (see Exhibit 3), indicates that at 10:21 p.m. on December 19, 2015, the accused sent a text message to the complainant, asking if she had gone to bed. The evidence of Mr. M was that he sent P this text message to verify that everybody had gone to bed before going into the garage to smoke cocaine. P responded at 10:22 p.m., as per the barely visible time mark, “Yeah I’m exhausted”. Mr. M argues that this supports his version of events that the alleged incidents on the couch did not occur, and that P’s subsequent text message asking him to leave rather results from P’s disappointment at catching him smoking cocaine.

[49] It is only later that evening, during the morning of December 20, 2015 – P testified that it was probably around midnight and this text shows no time mark – that P sent to Mr. M the text message reproduced above at paragraph 9. Mr. M argues that P sent him this text message after the incident in the garage. In support of his argument, he argues that the text message: does not make any reference to being touched; and warns specifically that P does not want him with her mother “if you even thought about doing what you did earlier”, not that she does not want him near her or her sister. He argues that P’s warning that “I don’t want you with my mom” makes reference to drugs; that if P had been concerned about her version of the alleged incidents a more logical warning would have been not near me or my younger sister. The Crown argues that “I didn’t want that to happen and it fucked me up in the head” cannot be about P catching Mr. M smoking cocaine. The Crown also argues that part of the conversation between P and Mr. M during the morning of December 20, 2015, admittedly related to P’s “permission”, which the Crown argues does not make sense if the conversation was about P catching Mr. M smoking cocaine.

[50] I find that that the text message of December 20, 2015, relates to the incidents alleged by the complainant. “I didn’t like what happened earlier [.] I didn’t want that to happen and it fucked me up in the head” applies logically to P’s version of events. The fact that the complainant wrote “Plus I don’t want you with my mom” achieves the same result and, in fact, does so more effective than if she had written “I do not want you near me or my younger sister” as the latter will necessarily result from the former, whereas the opposite does not necessarily achieves that result (if the accused is not with her mother he will necessarily not be near the complainant and her sister whereas if the accused is simply told not to be near the complainant and her sister he may occasionally be near the complainant and her sister if he is still with the complainant’s mother). And when the complainant writes “if you even thought of doing what you did earlier” this also applies logically and convincingly to the complainant’s version of events because it implies concerns relating to the accused’s thoughts and actions, which the complainant did not want repeated as she adds “So I want you to leave. I don’t feel comfortable with you here. I’m sorry but I need you to leave and never come back”.

[51] I do not see how a 15 year old girl seeing the accused smoking cocaine could write that “it fucked me up in the head” or how it could relate to “if you even thought about doing what you did earlier”. This, to me, is clear from the text message. Moreover, this is consistent with and is confirmed when, early the morning of December 20, the accused met the complainant to specifically discuss this text message: he did not want to tell the complainant’s mother until after Christmas in order not to ruin her Christmas. This only logically applies to the complainant’s version of events because the complainant’s mother admitted that she was aware that the accused was using cocaine since earlier in the fall 2015.

[52] Consequently, the text message of December 20, 2015, corroborates the complainant’s version of events.

Post event demeanour and pre-existing issues

[53] The Crown points to P’s difficulties after the alleged events as supportive of the complainant’s version of events, including the complainant’s father’s evidence that he noticed that P experienced growing difficulties starting in 2016. The accused points to P’s warming up to the accused and to her continued dealings with the accused for cigarettes, despite her statement that she felt a “burning hatred for the guy”, as conflicting with her evidence and as supportive of the accused’s version of events. The Crown responds that P continued to show affection for Mr. M as part of an effort to normalize the situation because she did not want her mother to become suspicious and because she was embarrassed by the situation.

[54] I will deal first with the Crown’s arguments that P’s post event issues support the complainant’s version of events. Although P’s father was a credible witness, his evidence is not always reliable. Without getting into unnecessary details, it is not disputed that P experienced issues that did not start in 2016, but well before she met the accused. The complainant’s mother, Ms. L, was more reliable on this point since she related P’s difficulties to at least as early as 2015. In fact, P admitted to issues from about grade 8 until about September 2016. Consequently, P’s ongoing issues in 2016, including her father’s understanding that she wanted to live with him, could be related to many unrelated factors and I therefore give them no weight.

[55] The accused argues that the complainant texting the accused and asking him for cigarettes, up to June 2016, contradicts the complainant’s evidence that she hated the accused and stayed away from him. He also argues that it contradicts the complainant’s version of events because it demonstrates that she was comfortable dealing with the accused.

[56] At trial, the complainant minimized these instances to a couple of occasions and explained that she met the accused with friends nearby. The print out of relevant text messages (Exhibit 3) indicates that P contacted the accused for cigarettes on at least five occasions, from December 31, 2015 to June 23, 2016. This contradicts the complainant on this point. However, I am unable to read anything into this because the complainant’s explanation that this was a way to cigarettes and that friends were nearby is quite reasonable. Moreover, I do not see how this could be indicative that the incidents did not occur when I accept that everyone reacts differently. The latter analysis is also applicable to the text messages exchanged between the complainant and the accused.

[57] The complainant’s evidence was that she stayed away from the accused for one to two weeks after the alleged incidents. This is contradicted by D, the accused’s daughter, who indicated that on December 25, 2015, P was clinging to Mr. M.

[58] The accused’s daughter testified in a straightforward manner and she was not contradicted. Moreover, D’s behaviour in calling the police on her father and in calling the ex-husband of Ms. L, asking for their assistance with her father’s drug addiction, is quite revealing. Consequently, D struck me as credible and reliable, and I accept her evidence that on December 25, 2015, she observed and formed the impression that the complainant was clinging to the accused; that the complainant wanted to be close to the accused, that she sat beside him, rubbed his shoulders, and that she was clinging.

[59] Although I accept that on December 25, 2015, D observed the complainant clinging to the accused, I do not accept that this contradicts the complainant in any material way and this evidence of the accused does not leave me with a reasonable doubt for the following reasons. It occurred close to one week after the alleged events and almost within the range indicated by the complainant. It occurred at Christmas and at a dinner party where people typically try to be friendly with everyone. The complainant was described generally by other witnesses as a hugger and the complainant at trial indicated that at some point she tried to act normal, as a family, and she admitted that as part of these efforts she may have touched and kissed that accused on the head. Finally, the extent of the “clinging” as observed and described by D, the accused’s daughter, is a subjective appreciation that is logically subject to a number of different and conflicting interpretations, none of which would be based on any evidence but on some subjective assessment of what would to some seem normal or abnormal in these circumstances. This is exactly the kind of reasoning that is problematic when trying to resolve credibility issues in sexual assault cases. Considering that everyone reacts differently and that this was reasonably explained by the complainant, I regard this evidence as neutral on my assessment of the complainant’s credibility and, as indicated above, it does not leave me with a reasonable doubt.

Motive

[60] The accused testified and argues that the complainant was concerned that he would ultimately cause trouble for the complainant’s mother, who was under bail and other conditions, and therefore that P wanted to get rid of the accused. He argues that it is only after his daughter, D, started raising trouble about him and Ms. L, including contacting the police, that P, through a friend, told her mother about these incidents. Mr. M also argues that by then his drug issues were well into the open and therefore that the complainant revealing to her mother that she had seen the accused smoking crack cocaine in their garage would not be sufficient to attain that objective. He also points out that around the same time, this same friend of P had observed the accused acting quite friendly with another woman. The text messages at Exhibit 3 confirm that about February 11, 2015, this same friend told P that she had seen Mr. M with another woman – “M told me what you did you twat”. The accused further argues that because of what had happened to her mother, P was well aware that allegations of sexual abuse would more likely get rid of him than would allegations of drug use. Mr. M also argues that it is only after P discovered that her mother had secretly resumed her relationship with Mr. M that P told her father about the alleged incidents in a further effort to get rid of Mr. M to protect her mother.

[61] The above arguments were categorically denied by the complainant when she testified at trial. She responded to such suggestions by indicating that she wanted the accused out because he molested her. I accept that evidence; the complainant was quite convincing. Indeed, by the time that the complainant told her mother in February 2016, the accused and the complainant’s mother had already separated as a result of the efforts of D. Although their relationship secretly resumed in April 2016 and this was later discovered by the complainant, the arguments that the complainant then wanted to protect her mother from a bad relationship are not at all convincing and are indirectly contradicted by the evidence of the complainant’s mother, Ms. L. The complainant’s mother testified about a conversation between herself and the accused concerning the incidents alleged by P. As indicated below, I accept that this April 2016 conversation occurred. Consequently, I do not believe the accused’s evidence and do not accept his arguments that the complainant made these allegations to protect her mother. It is not credible and it does not leave me with a reasonable doubt.

Assessment of the witnesses and other comments

[62] The complainant was a rather straightforward witness. She had believable recollection and provided convincing details about her version of the alleged events. She did not exaggerate, was not argumentative, and did not challenge any of the lawyers. A part of her evidence at trial is contradicted by the facts that she did not appear to keep her distances from Mr. M for one or two weeks, that she asked him for cigarettes on more than a couple of occasions, and that despite a stated “burning hatred for the guy” she asked him and saw him to obtain cigarettes on at least five occasions over a period of about six months. However, these contradictions are not indicative that her version of events did not occur. Overall, I found the complainant to be a credible and reliable witness.

[63] I agree with the Crown that the accused occasionally tried a little too hard while giving his evidence at trial, was sometimes overly eager, and was occasionally argumentative. For example, Mr. M refused to agree with the Crown that he hugged or was hugged by P, despite the fact that this was confirmed quite clearly and convincingly by his daughter, D, and despite the fact that during his examination in chief the accused indicated that P was a hugger. The accused also demonstrated quite a vivid recollection of December 19, 2015. This is surprising because the accused stated that he smoked cocaine late that evening and later felt that the complainant was on side as she had warmed up to him. He therefore had little apparent reasons to precisely remember that evening. Yet he remembered that he absolutely did not fall asleep on the couch during any part of the movie and remembered quite specifically what he did and where he was at various times. For example, he remembered asking Ms. L if she needed help in the kitchen and remembered that prior to dinner he sat at the kitchen table and not on the couch and that he did not set-up Netflix. I did not find the accused to be a credible witness.

[64] The evidence of the accused that the complainant’s text message, reproduced above at paragraph 9, and that his conversation with the complainant the morning of December 20 were both relate to his smoking cocaine in the garage is difficult to accept because Ms. L admitted that she had seen the accused using crack cocaine during the fall of 2015. The accused’s stated reason for not wanting to tell Ms. L before Christmas that the complainant had surprised him smoking cocaine in the garage - not to upset her or not to ruin her Christmas because she just returned with her family - is impossible to reconcile with the evidence that Ms. L was aware of his using cocaine. I therefore do not believe the accused and his evidence does not leave me with a reasonable doubt.

[65] As I have already indicated, I accept the evidence of D, the daughter of the accused, that she observed that the complainant was clinging to the accused on December 25, 2015, and I accept the evidence of L, the accused’s son, that he and his father worked late the evening of December 19. However, as indicated above, D’s observations have no or minimal impact on my assessment of the complainant’s credibility and neither the clinging observations nor the working and returning home late on December 19 leave me with a reasonable doubt.

[66] The accused gave evidence and argues that the complainant’s mother, Ms. L, made up the April 2016 conversation as part of some effort to protect herself or as part of an ill-conceived effort to protect the accused. He argues that she is not credible or reliable. For reasons that follow, I do not believe him and his evidence does not leave me with a reasonable doubt.

[67] Ms. L occasionally contradicted herself when she testified. For example, she initially indicated that she was not aware that Mr. M had a drug problem until February 2016, when they broke up and shortly thereafter she admitted that she had seen him using cocaine on the kitchen table during the fall of 2015. She initially described their relationship from April 2016 to June 2016, indicating that they did not live together but later admitted that the accused slept there when the girls were not home. She also admitted to advancing Mr. M sums of money and stated that this did not raise with her any alarms regarding possible drug use. More importantly, when the police arrested the accused at her house on June 30, 2016, she indicated to the attending officers that Mr. M was not there. In fact, Mr. M was waiting outside at the back door of her residence. She and Mr. M admitted that he always waited at the back door when anyone attended at her house because they were then trying to keep their relationship a secret (from D).

[68] The above is of concern to me when assessing the credibility and reliability of Ms. L. However, the evidence of Ms. L was given quite candidly and she appeared to make best efforts to correct any misstatement. She was not angry at the accused and she did not exaggerate or over-state her evidence. She answered spontaneously with no run-on answers and made obvious efforts to be fair to the accused. For example, she initially said that the accused told her that he was in and out of sleep and that he did not know whom he was touching but she immediately corrected herself indicating that she was not certain if he had said this or if she formed this impression from their conversation, as she had earlier told the police. She also admitted that P was a hugger and that the accused likely worked late on December 19.

[69] She was challenged during her cross-examination but not really successfully. Although she was not aware of two separate incidents, which actually coincides with her impression that this had been an accident, she was well aware that the complainant’s allegations were that the accused had touched both her breast and vagina. Her evidence on this April 2016 conversation is consistent with the evidence of the complainant and it is as well consistent with the rest of the evidence that I have accepted. Moreover, Ms. L was also quite frank about her past, ongoing bail conditions, how her past experience impacted her perception of what had occurred to her daughter, and was quite frank about how and why she had lied to the police on June 30, 2016.

[70] Despite the above shortcomings, the evidence of Ms. L about the April 2016 conversation with the accused is believable and is accepted. In addition to the above, it is accepted because Ms. L admitted that she needed the accused and she was quite convincing when she said “really” in answer to a suggestion during her cross-examination that this conversation did not occur. Moreover, the explanations given to her by the accused made sense to her and explain why she accepted his explanations: to her this was an accident, the accused would not have done this if he had not been in and out of sleep; this made sense to her. Finally, Ms. L’s evidence about this conversation makes sense; it makes sense that as a mother she would at least seek some reassurances. I therefore do not believe the accused and I am not left with a reasonable doubt.

[71] For the reasons indicated above, applying the W. (D.) analysis, I do not believe the evidence of the accused and I am not left with a reasonable doubt by it. Moreover, on the basis of the evidence which I accepted, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[72] Indeed, on the third part of the W. (D.) analysis, I find that on the basis of the evidence which I have accepted, the Crown has established beyond a reasonable doubt all of the elements of these offences: the complainant was under 16 years of age at the time; the accused intentionally touched the complainant; and the touching was for a sexual purpose. The latter two elements flow logically from the circumstances of these incidents and from the evidence that the accused moved slowly, secretly, and carefully during the second incident.

Conclusion

[73] The Crown has proven beyond a reasonable doubt both count one and count two on the indictment (sexual assault contrary to section 271 and sexual interference contrary to section 151 of the Criminal Code, count three under section 153(1)(a) was, at the request of Crown, struck at the outset of trial because the complainant was 15 years old at the time) and the accused, Mr. M, will be convicted of those two offences.

P.E. Roger J.

2017/09/22

CITATION : R. v. M., 2017ONSC5537

COURT FILE NO.: CR 16-0983

DATE: 2017/09/22

BY ORDER OF THIS COURT MADE UNDER SECTION 486.4 OF THE CRIMINAL CODE NO INFORMATION THAT COULD IDENTIFY THE VICTIM OR A WITNESS SHALL BE PUBLISHED IN ANY DOCUMENT OR BROADCAST OR TRANSMITTED IN ANY WAY

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen

AND

M.

BEFORE: Mr. Justice Pierre E. Roger

COUNSEL: P. Bowles for the Crown

C. Rogers for the Accused

REASONS FOR DECISION

P. E. Roger J.

Released : 2017/09/22