SUPERIOR COURT OF JUSTICE
CITATION: R v. R-G. D., 2017 ONSC 6095
COURT FILE NO.: CRIM J (P) 1753
DATE: 20171012
ONTARIO
BETWEEN:
HER MAJESTY THE QUEEN
J. Kingdon, counsel for the Crown
- and -
R-G. D.
D. Holt, counsel for the Defendant
HEARD: August 1 and 2, 2017
REASONS FOR JUDGMENT
TZIMAS J.
INTRODUCTION
[1] On or about August 23, 2016, R-G.D. was charged with sexual assault and sexual touching of the complainant E.C. over a period of three years, from May 1999 to the summer of 2001. The particular charges identified four separate incidents that were contrary to sections 153 and 271 of the Criminal Code, R.S.C. 1985, c, C-46.
[2] The trial occurred on August 1 and 2, 2017.
[3] Both parties agreed that the allegations before the court amounted to a classic credibility case.
[4] The Crown relied principally on the evidence of the complainant to satisfy the burden of proof. Counsel submitted that on the evidence before the court, the complainant had no motive to fabricate the various allegations and accordingly he should be believed. In other words, the Crown submitted that the complainant’s testimony was sufficient to discharge the Crown’s burden of proof to the effect that the accused was guilty of the charges against him beyond a reasonable doubt. The Crown did not address any aspect of accused’s testimony or make any submissions as to why the accused should not be believed or why his evidence did not raise any doubt.
[5] Defense counsel urged the court to accept the accused’s testimony as true. He highlighted the accused’s matter-of-fact and candid demeanour as the foundation for such a finding. However, counsel also highlighted multiple difficulties with the complainant’s testimony. He identified the implausibility of some of the complainant’s descriptions and cautioned the court about the complainant’s multiple memory failures.
[6] For the reasons that follow, and having reviewed the evidence very closely, I conclude that the Crown has failed to discharge the burden of proving the charges against R-G. D. beyond a reasonable doubt. I believe R-G.D. in his unequivocal denial of the allegations, and I find him not guilty of all the charges against him.
EVIDENCE
a) Testimony of E.C.
[7] At the time of the trial the complainant was 35 years old. He testified about events that took place when he was 17 and 18 years of age.
[8] He explained that R-G. D. was the cultural attaché for the promotion of the French language through the local Catholic School Board, the Conseil scolaire de district catholique Centre-Sud. R-G.D. was also the President of a community centre, the Cercle d’amis located in Meadowvale. In these positions, R-G.D. promoted the French language through various fun activities, including theatre that took place in French.
[9] E.C.’s interaction with R-G.D. began when E.C. was about 14 or 15 years old and concluded when he was 18 or 19 years old. Their activities together revolved around various theatre activities that included theatre performances, play readings, community and high school plays, theatre productions, and attendances at theatre festivals in Ottawa, more particularly at the Theatre Nouveau d’Occasion. R-G.D. would also drive him home on many occasions at the conclusion of theatre activities. He knew his parents and he would often drop in for a visit.
[10] E.C. said he had a profound friendship with R-G.D. He respected and admired R-G.D. as his teacher and as somebody who took care of him and who helped him grow. He described R-G.D. as a “pillar in the community”. At times during his testimony he spoke of R-G. D. as a father figure, a best friend and a close family friend. However, E.C. also described his relationship with R-G.D. as a “kind of this weird addiction”. He explained that he felt manipulated by R-G.D. and that R-G.D. was cunning and could get anybody to “do pretty much whatever he asked, whether it be through tactical sulking, aggression, discipline, love, joy; everybody wanted to please him.”.
[11] E.C. described four separate incidents over a period between June 1999 and the summer of 2000 / 2001 when R-G.D. sexually assaulted him.
[12] E.C. said that the first occurred in June 1999 when R-G.D. was giving him a lift home. R-G.D. was driving a black Cavalier that had a standard transmission. E.C. was sitting in the passenger seat of R-G.D.’s car. E.C. said that they had taken the route from school to his home countless times. As they approached his neighborhood, E.C. explained that R-G.D. had his hand on E.C.’s lap. E.C. did not think anything of that and described it as a sign of affection.
[13] Then he said that R-G.D. started to rub his genitals. This caused E.C. to have an erection. All while continuing to drive, E.C. explained that R-G.D. pulled down E.C.’s pants and continued to stroke his penis. E.C. was cross-examined extensively on whether these activities occurred while R-G.D. was driving and the car was moving and he agreed that the car was moving. In-chief, he described R-G.D. as “speeding down” Finchgate Avenue and heading towards Highway 7 as he simultaneously masturbated E.C. Eventually, R-G.D. pulled over onto one of the streets, stopped the car and performed oral sex on E.C.
[14] E.C. said that everything happened very fast, that he had no way of getting out, that he asked R-G. D. to stop several times, but that he would not do so. E.C. thought that he might put the car into gear or pull the breaks. He also said that he pulled R-G.D.’s hair and pushed on his forehead to get him off his penis. E.C. could not remember if he wore a seatbelt, if the doors were locked, or if he tried to get out of the car. He also could not explain how shifting gears would be a solution or would interrupt R-G.D.’s conduct.
[15] Eventually R-G.D. stopped and resumed the drive to E.C.’s home. E.C. explained that the events that followed were a blur to him. He said that he was disillusioned, scared, embarrassed and even felt guilty. Although he could not remember many details he recalled that the two did not speak immediately after the incident. The two did not say anything. When they arrived at E.C.’s home, R-G.D invited himself in and hung out with E.C.’s parents. E.C. said he took a swim in the pool.
[16] E.C. testified that the second incident occurred in Ottawa, in the summer of 1999, when E.C., together with four other individuals, including R-G.D. travelled there to attend a theatre festival. The group stayed at the University of Ottawa dormitories. E.C. shared a room with an older gentleman, J-G.G. He explained that the showers were located outside of the rooms and were shared. He described how when he slept, he had to wrap a towel around his head to block the noise from his roommate’s snoring. One morning, when J-G.G. went off to have his shower, and while E.C. was still in bed with his head wrapped in towels, R-G.D. came into the room and approached him. R-G.D. lowered himself to the ground and started to tease E.C. about the towels. As E.C. was about to get out of bed, R-G.D. noticed that E.C. had an erection. He proceeded to grab at E.C.’s penis and started to masturbate him. He then forced E.C. to put his hand on his own penis and stroke it. This continued until there was a knock on the door and that ended the incident.
[17] The person at the door was G.M., one of the other people on the trip. E.C. explained that it was both fortunate and unfortunate that G.M. did not see anything. Fortunate because it would have been embarrassing but unfortunate because E.C. felt he needed help. E.C. said that the day unfolded as usual and he did not say anything to anyone about the incident.
[18] According to E.C., the third incident occurred at R-G.D.’s home in Aurora in the fall of 1999. E.C. said that he had gone to R-G.D.’s home a number of occasions. Typically, they would have dinner together, R-G.D. would serve him alcohol and offer him hashish in exchange for marijuana and they would watch movies.
[19] On this particular occasion, E.C. said that R-G.D. drove from Aurora to his home in Brampton, picked him up and drove back to Aurora, where the two spent the weekend. He recalled that he was picked up late in the day. The plan was to work on some miniature theatre scenes E.C. described as “maquettes”. They had done such activities on a number of other occasions. E.C. said that they also planned to go on a hike the following morning.
[20] That evening, E.C. explained that after they had dinner, they planned to watch R-G.D.’s favourite movie, The Tune. Prior to watching the movie, E.C. said that he felt dirty and asked if he could take a shower. As he was taking his shower, he said that R-G.D. came into the bathroom and asked if he could wash his back. E.C. said he resisted the idea and quickly ended his shower and got dressed. They then proceeded to watch the movie.
[21] Following the movie, E.C. said that he settled onto the couch where he was set up to sleep and R-G.D. went to his own room. A few minutes later, R-G.D. came back out and knelt down on the floor next to the couch. E.C. noticed that he was exposed. R-G.D. asked E.C. to expose himself which E.C. did. E.C. went on to explain that he told R-G.D., “This is not, this is not cool, I don’t feel comfortable, it’s not happening.” According to E.C., R-G.D. then forced his head onto E.C.’s lower body. Although E.C. was able to slip away before R-G.D.’s lips could touch his penis, R-G.D. grabbed E.C.’s hand and directed it to his own penis. E.C. said that he pulled back as R-G.D. continued to stroke E.C.’s penis. At one point, R-G.D. went to the bathroom and got a pornography magazine to stimulate E.C. Eventually, R-G.D. stopped and went to bed.
[22] E.C. said that he could not recall anything else from that evening. He also said that he was just a kid and that he felt very confused by the situation.
[23] On cross-examination E.C. admitted that the work on the maquettes was going to be taking place in Meadowvale, which was much closer to his own home than Aurora. When asked about how the sleepover made any sense given the objectives to work on the theatre scenes, E.C. admitted that it did not. However, he explained that R-G.D. manipulated the situation so that E.C. essentially felt forced to go to R-G.D.’s home. E.C. also indicated that after this incident, he started talking to some people about what R-G.D. was doing. E.C. was not asked to identify who the people were or what he might have said to them.
[24] Also in cross, E.C. was asked to comment on his statement to the police concerning this incident where he reported that he woke up in R-G.D’s bed on the following morning. E.C. explained that he had no idea what happened that night and that it was all a big blur. He suggested that he may have been sleep-walking.
[25] E.C. testified that the fourth incident occurred in Algonquin Park, on Lake Opeongo, on a canoeing trip. He initially thought that the trip took place in the early summer of 2000, the year that he would have graduated from high school. In cross-examination, after being asked about the timing of a trip to Montreal for an audition, E.C. revised his testimony and suggested that the trip must have occurred in 2001. In the course of his testimony it also became apparent that he did not actually graduate in 2000, but had to complete some credits, which he attempted to do in Sudbury, in the 2000 – 2001 academic year.
[26] On this occasion, E.C. testified that he and R-G.D. mutually decided to go on a canoe trip. The ostensible purpose for the trip was to scout out a location for a future youth retreat. On a previous youth retreat, the location they used proved to be problematic because of a dried-out lake and muddy paths. According to E.C., R-G.D. wanted to find an alternate spot.
[27] E.C. described the route they followed in Algonquin Park. He said that the trip, for the most part, was without incident. This was a five-day trip. At some point, he undressed at R-G.D.’s request because R-G.D. wanted to sketch a nude of him. He said that when he caught a glimpse of the sketches he found them to be quite good. E.C. also recalled that at one point he asked R-G.D. to leave so that he could enjoy a naked swim in the lake. R-G.D. agreed and regressed into the woods to give E.C. his privacy.
[28] On the fourth day of the trip, E.C. described how they settled on an island in Lake Opeongo. They had dinner, the sun went down, and they retired into the tent and got into their sleeping bags. R-G.D. then began to give E.C. a back massage, which he had done several times in the past. They then went to sleep. E.C. explained that in the morning, when he woke up he found R-G.D. on him. His long johns were off, his face was down and the sleeping bag was rolled down to his ankles. He said that R-G.D. was masturbating himself on E.C.’s back thighs. R-G.D. then tried to reach for E.C.’s penis and also tried to penetrate E.C. R-G.D. did not succeed because E.C. was able to get out from underneath.
[29] Immediately after this incident E.C. recalled putting away the camping gear, packing up and the two drove home. He also recalled thinking “enough is enough” and ran away to Sudbury where his sister was living.
[30] E.C. said that the only contact with R-G.D. following this incident occurred several months later, when R-G.D. sought him out in Sudbury. Although he did not know how R-G.D. located him in Sudbury, he thought it must have been through his sister. He expressly denied that he was the one to call R-G.D. to tell him about an upcoming performance and to invite him to attend. E.C. did however acknowledge that he recalled R-G.D., his wife and two others coming to Sudbury to see him perform.
[31] With respect to the Montreal trip, E.C. was asked if he recalled that R-G.D. arranged for him and two others to audition at the Ecole Nationale de Theatre de Canada in Montreal. E.C. was initially uncertain but he eventually recalled that the trip took place in the spring of 2001, probably before the ‘Algonquin Park incident’. He confirmed the auditions and also said that on their return home, they stayed at a motel at a strip club called “Miss Dorion”.
[32] The questioning around this subject caused E.C. to question whether the Algonquin Park incident occurred in 2000 or 2001. It also caused him to question whether R-G.D. came to Sudbury in 2000 or 2001.
[33] E.C. testified that he did not last very long in Sudbury. He said he missed his family and that he did not do well socially or physically. He eventually confirmed that he returned to follow a drug treatment program at the Centre for Addiction and Mental Health (CAMH), in to Toronto. E.C. could not recall if R-G.D. and the others who came up to see him in Sudbury gave him money or asked him to stay off drugs. He did however say that these were very generous people and often very giving and caring.
[34] E.C. was asked about his relationship with his mother, whether he had difficulties with her and whether he ever had thoughts of self-harm. He denied having any kind of falling out with his mother. Initially, E.C. disagreed with the proposition put to him but he eventually agreed that he did have arguments with his mother but that it was because she was concerned for his well-being. E.C. also adamantly denied having any thoughts of any self-harm or calling any suicide hotline for counselling.
[35] Finally, E.C. was asked if he could recall any distinguishing marks on R-G.D.’s body such as any scarring, piercings, or tattoos. E.C. had no recollection whatsoever.
b) Testimony of R-G.D.
[36] R-G.D. was unequivocal in his absolute denial of all of the noted incidents, or of any sexual touching or engagement by him against E.C. at any time.
[37] R-G.D. was 56 years old when he testified. He explained that he worked for the French Catholic School Board as a cultural director. As an animator he worked with others across various schools to promote French culture and the French language. He wanted to ensure that learning a second language would be a pleasure for the students and he had to find ways to make the experience fun.
[38] R-G.D. testified that he met his wife in February 2000 and they got married in August of 2012.
[39] Regarding his relationship with E.C., R-G.D. explained that he thought he met him in 1996 or 1997 at auditions at a community theatre for the play Les Murs de Nos Villages. He said that over time, they developed a good friendship. He treated E.C. like he was family, “a little like a little nephew or a little brother.” He also explained that he would drive E.C. home on many occasions. He also drove many other students home, as did other adults. The drives would follow rehearsals or after performances in the evenings.
[40] R-G.D. explained that he had many conversations with E.C. He recalled being told that E.C. was having difficulties at home, particularly with pressures from his mother. One night specifically, E.C. shared dark thoughts with him and he urged E.C. to call S.O.S. J’Ecoute. On the following day, E.C. reported to him that he made the call as promised and that it helped him feel better.
[41] Regarding the trips to Ottawa, R-G.D. confirmed that he and a group of individuals, including E.C. travelled there on multiple occasions for festivals, theatre meetings, theatre workshops, and readings. They would stay at the University of Ottawa dormitories after April, when the rooms were available. He further verified that E.C. would have shared a room with J-G. G. and that he and another person would do the room allocation. He said that he could if he wanted, arrange to share a room with E.C. but he did not; he preferred to have his own room if costs would permit it.
[42] R-G.D. described one instance in Ottawa when somewhere between 20 and 24 students were there for a “play zone”. The showers were shared; when he went to use the showers, he encountered E.C. who was standing just outside the shower curtain fully naked. He asked E.C. why he was standing there and E.C. told him that he was waiting for the water to warm up. E.C. then asked R-G.D. about the time of a meeting and about when they would have breakfast. R-G.D. said that E.C. did not attempt to cover up or stand behind the curtain. R-G.D. gave E.C. the information and left the shower area thinking that he would come back later for his own shower. R-G.D. recalled that he did not return that night.
[43] With respect to any sleepovers at his place, R-G.D. said this occurred on only one occasion in June 2001, when they were returning from an Ottawa trip. Their return was very late. It was 3:30 a.m., when they approached Toronto. R-G.D. was very tired and he asked E.C. if it would be okay for him to stay at his place for that night. E.C. had no problem with the request. R-G.D. described how he set E.C. up on the couch and then drove him home the next morning. R-G.D. explained that he had a specific recollection of this trip because he got pulled over for distracted driving and was given a ticket. That made him very upset. He said the ticket haunted him during the whole trip. R-G.D. expressly denied hosting E.C. at his place on any other occasion.
[44] When asked specifically about E.C.’s description of his stay at R-G.D’s place and the corresponding circumstances, R-G.D. denied that occurrence and said it did not make any sense. He explained that at the time they were doing work for the community theatre, Le Cercle de L’Amitie. This was actually located at a community centre in Mississauga. E.C. lived in Brampton. R-G.D. explained that it would not have made any sense for R-G.D. to drive all the way from Aurora to Brampton, to bring E.C. to Aurora, only to return the next day, past Brampton and down to the community centre.
[45] R-G.D. confirmed that he and E.C. went on a canoe trip to Algonquin Park in the early summer of 2000. He explained that the trip was something E.C. really wanted to do and he asked him if they could go together. The request coincided with the need to identify an appropriate location for a youth retreat. R-G.D denied drawing any nude sketches of E.C. He also denied seeing E.C. swimming naked. When asked if there was anything that was memorable at all about the trip he said that on the last morning, he was woken up by E.C. who was reaching out for R-G.D’s crotch. He said he was shocked by this gesture and jumped out of the tent and started to clean up. E.C. emerged from the tent a few minutes later. R-G.D. told Eric that while he loved him it was not “in that way” and that he could not love him in that way. He also told him that nothing would change because they had to continue to work together. He proposed that they both forget the incident.
[46] R-G.D. testified that following the Algonquin Trip, E.C. participated in the Leadership Youth camp that occurred in September 2000.
[47] R-G.D. also verified that he brought E.C. and three others to Montreal for auditions at the Ecole Nationale de Theatre de Canada. He said this was the best school in the country for theatre. He candidly admitted that on the way back they stayed at a motel close by a strip club in Vaudreuil called “Miss Dorion”. He said they stayed at that motel because they were short on money.
[48] In the summer of 2001, R-G.D. said that he did not go on any camping trip with E.C. because he worked for the Canada Games. Thereafter, he and his partner went to the Gaspe Peninsula to spend the rest of the summer. They chose that location because his partner’s family is from Rimouski.
[49] R-G.D. recalled going to a see a performance of a play in Toronto where E.C. and another student had significant roles. He said that occurred in May or June of 2001 and that it was held at the Centre for the Performing Arts in Toronto. The play was produced by Theatre Tagente.
[50] Finally, with respect to Sudbury and visiting E.C. there, R-G.D. recalled this visit in some detail. He believed the visit was in November of 2001. E.C. was performing in a play produced by the community theatre, Theatre du Nouvel-Ontario. It was E.C. who called R-G.D. and invited him up for the performance. R-G.D. expressly denied ever calling E.C.’s sister to obtain E.C.’s co-ordinates. He also expressly denied E.C.’s allegation that R-G.D. was very upset with E.C.’s departure to Sudbury or that he ever asked E.C. to return to Peel.
[51] R-G.D. explained that he, his partner and two other individuals who knew E.C. from previous collaborations, went to Sudbury to watch E.C. perform in a play. At the conclusion of the performance, he recalled congratulating the troupe. E.C. invited them to join the troupe at Kelsey’s and they went. They also met with E.C. the next morning before their return. At that time, he said that everyone was cheerful and positive. They encouraged E.C. to do well and to finish his studies. They also told him again that the play was great, and that he should hang on and quit doing drugs. When E.C. told them about his financial difficulties, R-G.D. and the others who were there pooled some cash and gave E.C. $50.
[52] In addition to denying any inappropriate touching of E.C. at any time, R-G.D. also denied ever giving him any drugs, or alcohol. He also denied using drugs in E.C.’s presence.
[53] Finally, R-G.D. described some very significant scarring on his abdomen going up from an inch above his pubic hair, around his belly button and up further to the bottom of his sternum. The scarring was the result of some significant intestinal surgery he underwent in 1998. He showed the court part of the scarring.
c) Testimony of H. St.A.
[54] H.St.A. has been R-G.D.’s partner for 17 years. She is a biology high school teacher but for the past five years worked as a guidance counselor. Ms. St.A testified that she met E.C. at the Leadership Camp in September 2000. She thought she saw him in a play in December 2000 and then in another play in the spring of 2001 called La Passagere. The December play was performed in Meadowvale. The ‘spring 2001’ play was at a theatre near Yong and Finch, in Toronto.
[55] H.St.A. also recalled travelling to Sudbury to watch E.C. perform in a play. She recalled that after the play, E.C. invited them to join him and the theatre troupe for dinner and they agreed to go. She recalled that they did not sit together with E.C. but that he went back and forth between the two tables. The following morning they had breakfast with E.C. before returning home. H.St.A. recalled hearing that E.C. was having difficulties in Sudbury. They encouraged him to “push on” and to try to finish school. E.C. told them that he was short on money and they gave him “ten bucks each or something like that just to encourage him to, to finish everything”. H.St.A. could not recall if E.C. was completing high school credits or taking college courses.
[56] H.St.A. recalled that R-G.D. went camping with E.C. in the summer of 2000. She also recalled that R-G.D. worked at the Canada Games in the summer of 2001 for a period of three weeks and thereafter they spent the summer in Gaspe.
POSITION OF THE PARTIES
[57] Both sides agreed that the case would turn on a classic W (D) credibility analysis.
[58] The Crown submitted that the complainant ought to be believed and that any shortcomings in his memory should be discounted in light of the years that intervened between the date of the various incidents, and E.C. coming forward. Quite remarkably, the Crown did not challenge R-G.D. on any material aspects of his testimony. In his submissions, he did not make any submissions on why the court should disbelieve R-G.D.
[59] Counsel described R-G.D.’s conduct as opportunistic in nature as opposed to being planned and deliberate. In the assessment of E.C.’s credibility, counsel invited the court to conclude that on R-G.D.’s own account of his relationship with E.C., E.C. would not have had any motive to fabricate any of the allegations, and accordingly he must be believed.
[60] The defense asked that the court believe R-G.D. Counsel highlighted the fact that R-G.D. testified in a matter-of-fact manner. He was candid about the nature of his relationship with E.C. and he did not try to distance himself or hide from any of the alleged incidents. He gave very reasonable explanations in response to the various allegations against him. He did not try to embellish or overstate anything in his evidence. He did not dispute that he stood in a position of trust. Counsel also noted that his wife corroborated various aspects of his evidence.
[61] In the event that the court did not believe R-G.D.’s testimony, counsel submitted that the E.C.’s evidence was highly dubious and did not make any sense. With respect to the first incident, counsel submitted that the description E.C. gave was impossible. No amount of dexterity could allow for somebody to drive a car and simultaneously reach across to the passenger side and begin to remove somebody’s pants and stroke that person’s genitals especially with stick-shift and a hand-brake in between the driver and passenger seats.
[62] About the alleged incident in Ottawa, counsel submitted that the circumstances did not make any sense. In the case of the alleged incident at R-G.D.’s place in Aurora, the narrative was not plausible given the distance between Brampton and Aurora, and more particularly the location of the theatre activities in Mississauga.
[63] As for the trip to Algonquin Park, counsel submitted that aspects of E.C.’s narrative were strange, and that there was a fair bit of embellishing. Finally, on the subject of E.C.’s departure to Sudbury and his subsequent encounter with R-G.D. just did not accord with R-G.D.’s evidence. E.C.’s explanations did not make sense.
[64] Speaking generally about E.C.’s demeanour and the content of his testimony, counsel noted that E.C. alternated between not remembering and embellishing his testimony. Frequently, when asked about why he would not distance himself from R-G.D. given the allegedly dreadful encounters, E.C. would say that he was only a kid and was shocked by the experience. Counsel invited the court to evaluate closely those responses. He noted that while E.C. may have been young, he was not a young child, in the way that E.C. tried to portray himself; he was practically an adult.
ANALYSIS
a) Legal Principles
[65] To begin with, the Crown bears the burden of proving that the accused is guilty of each of each offence beyond a reasonable doubt. Proof to a mathematical certainty is not required as that would be virtually impossible to achieve: R. v. Liftchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320. Where there are multiple counts in the indictment, the evidence in relation to each count must be considered as it relates to each count to determine whether or not the Crown meets its burden of proof.
[66] Most sexual assault prosecutions turn on the credibility of the evidence of the two principals, the complainant, and the accused. It is open to a court to believe all, none or some of a witness' evidence: R. v. Francois, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, at para. 14; D.R. et al. v. The Queen (1996), 1996 CanLII 207 (SCC), 107 C.C.C. (3d) 289 (S.C.C.) per L'Heureux-Dube J. (dissenting in the result), at p.318; R. v. M.R., 2010 ONCA 285, at para. 6; R. v. Hunter, [2000] O.J. No. 4089 (C.A.)(QL), at para. 5; R. v. Abdullah, 1997 CanLII 1814 (ON CA), [1997] O.J. No. 2055 (C.A.)(QL), at paras. 4-5. It follows that a trier of fact is entitled to accept parts of a witness' evidence and reject other parts. The trier of fact may also accord different weight to different parts of the evidence that the trier of fact has accepted: R. v. Howe, 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (C.A.)(QL), at para.44.
[67] That said, a determination of guilt or innocence must not devolve into a credibility contest between two witnesses, as it would erode the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D). v. The Queen (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), at p. 409; Avetsyan v. The Queen (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.), at pp. 85-87; and R. v. S.M., [2012] O.J. No. 3868.
[68] With these general principles in mind, credibility is to be assessed on the basis of the following three steps, as first laid out in W. (D.), (para. 28):
First, if you believe the evidence of the accused, obviously you must acquit.
Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.
Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[69] When working through the process of assessing credibility, it is crucial to note that the mere disbelief of the accused's evidence will not satisfy the burden of proof upon the Crown: see W.(D.), at p. 409. To use the disbelief of the accused's evidence as positive proof of guilt would be an error: R. v. Dore (2004), 2004 CanLII 32078 (ON CA), 189 C.C.C. (3d) 526 (Ont. C.A.), at p. 527 (leave to appeal refused, [2004] S.C.C.A. No. 517; R. v. H. (S.), [2001] O.J. No. 118 (C.A.)(QL), at paras. 4-6. The court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused's guilt.
[70] The testimony of youthful witnesses or of adults testifying about events from their childhood is not inherently unreliable. The testimony of young witnesses should be considered against measures of common sense when because of their young age they are unable to speak to details or because their experience as a child is very likely different from that of an adult. The Supreme Court of Canada has explained that where an adults testify about events that occurred during their childhood, their credibility and reliability according to criteria applicable to an adult witness. "Yet, with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying,” R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] S.C.J. No. 56.
[71] The assessment of a witness' credibility may include the following considerations:
a. An evaluation of his or her demeanour as testimony is provided to the trier(s) of fact in the courtroom -- this could include "non-verbal cues" as well as "body language, eyes, tone of voice, and the manner" of speaking, bearing in mind that the subjective perception of demeanour may not be reliable: R. v. N.S. (2010), 2010 ONCA 670, 102 O.R. (3d) 161 (C.A.), at paras. 55, 57, affirmed by the SCC in 2012 SCC 72; and Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (C.A.), at para. 66.
b. A delay in disclosure, standing alone, cannot give rise to an adverse inference against the credibility of the complainant in a sexual assault case: R v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275 at para.63. The significance and relevance of such delay will depend on the court's assessment of the evidence relevant to the failure to make a contemporaneous complaint.
c. The absence or existence of a motive by the complainant to fabricate the complaint is a factor to be considered: The Queen v. K.G.B. (1993), 1993 CanLII 116 (SCC), 79 C.C.C. (3d) 257 (S.C.C.) at p.300 and R. v. Greer, 2009 ONCA 505, at para.5.
[72] A distinction is to be made between the credibility of a witness and his or her reliability. Credibility relates to the question of a witness being truthful. Reliability relates to the accuracy of the evidence. If a witness is not credible, his or her evidence will not be reliable. By contrast, a witness who is credible may make an honest mistake about his or her evidence: R. v. Gostick 1999 CanLII 3125 (ON CA), [1999] O.J. No. 2357 at paras. 15 and 16 ; R. v. Vickerson 2005 CanLII 23678 (ON CA), [2005] O.J. No. 2798, at para. 28 (ONCA); and R. v. S.C., 2012 CanLII 33601 (NL SC), [2012] N.J. No. 210, 324 Nfld & P.E.I.R. 19.
[73] Historical sexual assault cases may present particular concerns with the reliability of the evidence being produced because of the passage of time and vulnerabilities and frailties of human memory. The trier of fact must be attuned to these challenges and must assess very carefully any significant inconsistencies or contradictions within the principal Crown witness' testimony, concluding that guilt has been established: R. v. S.W. (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509 (C.A.), at p. 517 (leave to appeal refused [1994] S.C.C.A. No. 290; R. v. Oziel), [ [1997] O.J. No. 1185 (C.A.) (QL), at paras. 8-9; R. v. Norman (1993). 1993 CanLII 3387 (ON CA), 87 C.C.C. (3d) 153(Ont. C.A.), at pp. 172-4. The trier of fact must also be alive to the possibility of collusion between witnesses: R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474.
b) Findings
[74] In my consideration of the evidence before this court and the parties’ submissions I find that I believe R-G.D. In accordance with W.(D.), I must therefore acquit R-G.D. of the charges against him.
[75] I do not come to this conclusion lightly, especially in light of the gravity of E.C.’s allegations. E.C. presented as a very sympathetic individual who has clearly had to deal with a number of challenges in the past. But equally at stake is the guilt or innocence of the accused. The Court’s obligation is to evaluate the evidence before the Court in its totality. It must do so systematically, in accordance with the requirements of W.(D.).
[76] The Crown’s submission that E.C. be believed because he had no motive to fabricate the allegations against R-G.D. amounts to an attempt to short-circuit the W.(D.) analysis. It is perhaps for this reason that the Crown, quite remarkably, did not challenge R-G.D. on any aspect of his interactions with R-G.D. Nor did the Crown make any submissions concerning R-G.D.’s credibility, or offer reasons to reject it. While motive to fabricate or not may be a factor in the overall analysis, that alone is insufficient to discharge the Crown’s obligation to prove beyond a reasonable doubt that R-G.D. sexually assaulted E.C. on the various alleged occasions. But before I even get to the issue of E.C.’s motive, or perhaps other explanations as to what would cause E.C. to advance these allegations, I must consider and evaluate R-G.D.’s testimony.
[77] Turning to my specific findings, I find that R-G.D. explained his relationship with E.C. in a very candid manner. Throughout his testimony he acknowledged that in his relationship with E.C. he stood in a position of trust. He considered E.C. as either a young nephew or a younger brother.
[78] Consistent with those sentiments, I find that R-G.D. looked out for E.C.’s best interests. He would give him a lift home when rehearsals or performances ran late. He acknowledged E.C.’s talent in theatre and brought him along to the festivals and workshops in Ottawa. He included E.C. in the group of students who auditioned for a spot at the prestigious Ecole Nationale de Theatre de Canada, in Montreal. Finally, I find that even as E.C. moved on to other activities and was no longer in high school or participating at the community theatre in Meadowvale, R-G.D. reflected his continued care for E.C.’s well-being when he attended E.C.’s performances, one being in the spring of 2001 at the Centre for the Performing Arts in North York, and the other being in Sudbury.
[79] I find the Sudbury visit especially significant because it serves to underscore the extent of R-G.D.’s caring for E.C.’s well-being and verifies his description of E.C. as a nephew or a younger brother. Sudbury was not around the corner from Aurora; R-G.D. would have had to travel several hours and incur certain expenses to go to the performance. In this regard, I also accept R-G.D.’s evidence that E.C. contacted him to tell him about his performance in the fall of 2001 and to invite him to come. It made sense that E.C. would reach out to him and not the other way around as E.C. suggested. In the absence of receiving an invitation, it is doubtful that R-G.D. would have known about E.C.’s upcoming theatre performance in Sudbury and indeed there was no evidence that R-G.D. had any independent knowledge of the performance.
[80] In addition, by all accounts, including E.C.’s, but also H.St.A.’s testimony, the visit was positive and designed to encourage E.C. It included a couple of other people who knew E.C. from their activities in Ottawa. The extent of the group’s attempt to support E.C. extended to the fact that when E.C. advised them of certain financial difficulties, the four who were there, including R-G.D., gave him what cash they had on them. Although E.C. initially tried to distance himself from this encounter and suggest that R-G.D. sought him out in Sudbury because he was upset with his departure, that narrative became quite diluted in the course of E.C.’s cross-examination. Eventually, E.C. readily admitted that R-G.D. and the others who came to Sudbury were “very generous, giving and caring”.
[81] I also find that R-G.D. was forthcoming about all of his contacts with E.C. He did not back away from any of the activities with E.C. and his descriptions were eminently reasonable and made sense. In his examination-in-chief, his denial of the first incident, separate and apart from its implausibility on E.C.’s account, was consistent with his evidence that he gave E.C. lifts home when the rehearsals and performances went late into the night. Apart from E.C.’s evidence that on this one occasion the drive home occurred in the late afternoon, after school, there was no evidence that R-G.D. would drive E.C. home after school. I therefore accept R-G.D.’s evidence that this incident did not happen.
[82] Regarding the Ottawa incident and R-G.D.’s outright denial, I also find his explanation concerning the room allocations and the encounter in the shower area credible. The description of the shower encounter did cause me to consider whether the alternative narrative was an attempt by R-G.D. to redirect the overall narrative or to cast some questions over E.C.’s behavior but in the context of shared showering facilities it would not be surprising that somebody stood naked just outside of the shower until the water reached the desired temperature. More significantly, R-G.D. described the incident in an unremarkable and matter of fact manner and did not suggest that there was anything awkward about E.C.’s engagement or behaviour.
[83] With respect to the overnight stay at R-G.D.’s place, R-G.D.’s explanation about how that occurred only on one occasion when he was too tired to drive E.C. home after a long trip from Ottawa made sense. I also accept his testimony that he would not have driven all the way from Aurora to Brampton, to pick E.C. up, only to have to turn around and bring him right back to Mississauga the following morning to work on the theatre project there. R-G.D.’s discussion of this made sense. While I am most mindful of the various cautions in the case law that the determination of one’s guilt or innocence must not devolve into a credibility contest between two witnesses, even E.C. recognized in cross-examination that the travel to and from Aurora did not make any sense.
[84] R-G.D.’s description of the Algonquin camping trip was compelling. This particular incident could have been a source for doubt particularly since both E.C. and R-G.D. agreed that they were alone in the wilderness. Moreover, R-G.D. could have tried to distance himself from the events if he wished to misrepresent the incident to the court. However, he did not. As with the narrative concerning the Ottawa incident, I did consider whether R-G.D.’s description of the morning when he said that E.C. grabbed his crotch represented an attempt to blur the portrayal of E.C. and possibly set up a competing narrative to E.C.’s testimony. But R-G.D. kept the description as succinct as possible. He was not critical of E.C. Nor did he try to explain away E.C.’s conduct or otherwise blame him or embellish his testimony. Rather, just as he said he told E.C. that he wished to forget the incident and maintain their friendship, in court, in his testimony R-G.D. kept the description to its essential elements. Moreover his engagement with R-G.D. in the months that followed were consistent with his suggestion that they move on and forget the incident.
[85] Consistent with his evidence that he told E.C. to forget about the incident, and that they not allow it to compromise their friendship, I accept R-G.D.’s evidence that he encountered E.C. on three occasions following the camping trip in Algonquin Park. These encounters, although they were reduced in frequency were consistent with the types of encounters the two had up until that time. I further accept R-G.D.’s evidence that E.C. attended the youth retreat in September of 2000 as well as the theatre performance in Toronto in the spring of 2001 and then the visit to Sudbury. I also accepted his evidence that he did not go on any camping trip in 2001 because he was working at the Canada Games and then spent the rest of the summer in Gaspe. H.St.A., who I found most credible verified this evidence.
[86] R-G-D’s chronological situation of the incident to the early summer of 2000, as opposed to E.C.’s confusion over the date also reinforced R-G.D.’s credibility. I note here that E.C. initially situated the Algonquin trip to the summer of 2000 but then revised that date to the summer of 2001.
[87] While I recognize that the Supreme Court of Canada, in R v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 SCR 30 held that the precise timing of an offence may not necessarily be critical to a conviction and may not be an essential element of an offence, R-G.D’s recollection of the trip and when that occurred goes to his overall credibility.
[88] Counsel for the Crown described R-G.D.’s behaviour as opportunistic in nature. He submitted that there was nothing in the evidence to suggest that R-G.D. planned the sexual assaults in advance. Having regard for all of the evidence before the court, this description is not borne out. Working through the various incidents, the first one, was situated according to E.C. in a residential neighborhood, and occurred in broad daylight. Moreover, R-G.D. was driving as most of the incident unfolded. I fail to understand how these circumstances amounted to an opportunity for R-G.D. or for anyone to assault a victim when somebody from the neighborhood could discover them, let alone the prospect of losing control of the vehicle. The opportunity would have been entirely different if the car were stopped, if it was dark, and if the location was in a commercial area, perhaps an isolated spot, where nobody could witness the activity. These were not the facts in this case.
[89] Similarly, in Ottawa, although much was made of whether the door to the dorm was propped open by a shoe, it defies logic that the particular dorm setting offered R-G.D. any particular opportunity for a sexual assault. With E.C.’s roommate temporarily out of the dorm for a shower, and other members of the delegation to Ottawa milling about, getting ready for breakfast and for the day’s meetings, the timing of R-G.D.’s alleged assault would be a highly inopportune moment. Anyone could walk in on R-G.D. at just about any time.
[90] The Algonquin trip and the overnight stay in Aurora might offer some opportunity, but for the reasons and findings I have already made, I do not accept the suggestion that R-G.D. was looking for any opportunity to assault E.C.
[91] Finally, R-G.D.’s prominent scarring on his lower body may be the most helpful alibi to his testimony. I find that anyone who would have seen R-G.D. “fully exposed” as E.C. said several times, would remember R-G.D.’s appearance. Having been shown R-G.D.’s scarring, the marks were neither minor nor invisible.
[92] Given my findings, there is no need to proceed with the rest of the W.(D.) analysis though I would note that had I had to evaluate E.C.’s testimony, I would still be left with reasonable doubt.
CONCLUSION
[93] In these circumstances and in light of my findings, I believe R-G.D. The Crown has failed to meet the burden of proving the allegations against R-G.D. beyond a reasonable doubt. The charges in their totality are dismissed against R-G.D.
[94] I declare R-G.D. not guilty of all charges.
TZIMAS J
Released: October 12, 2017
CITATION: R v. R-G. D., 2017 ONSC 6095
COURT FILE NO.: CRIM J (P) 1753
DATE: 20171012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
R-G. D.
REASONS FOR JUDGMENT
TZIMAS J
Released: October 12, 2017