Her Majesty the Queen v. G.M.

COURT FILE NO.: CR-16-1750-00 DATE: 2017 11 17

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN J. Vlacic, Counsel for the Crown

- and -

G.M. J. McCulligh, Counsel for the Accused Accused

HEARD: July 25- 28 and September 22nd, 2017

REASONS FOR JUDGMENT

LEMAY J.

[1] The accused is facing two charges, one of sexual assault and one of sexual exploitation. The charges read as follows:

G.M stands charged:

1. That he, on or between the 1st day of September, 2015 and the 13th day of December, 2015, at the city of Brampton, in the Central West Region, did unlawfully commit a sexual assault on S.O, contrary to section 271 of the Criminal Code of Canada.

G.M further stands charged:

2. That he, on or between the 1st day of September, 2015 and the 13th day of December, 2015, at the City of Brampton, in the Central West Region, being in a position of trust or authority towards S.O, a young person, did for a sexual purpose touch directly the body of S.O a young person, with a part of his body, contrary to section 153 (a) of the Criminal Code of Canada.

[2] The accused is in a relationship of some permanence with the complainant’s mother, and they have lived together for a couple of years. The charges stem from a three month period in the fall of 2015, when the Complainant, her mother and the accused all lived together.

[3] The evidence from the Crown consisted of testimony from S.O., the Complainant, testimony from Justin Vandenbrink and Jessica Innes, both Peel Police officers involved in the investigation, and from J.R., the Complainant’s aunt on her father’s side.

[4] In addition, the Crown tendered expert evidence from Tanis Gornall, a duly qualified expert in the examination and interpretation of items for the presence of blood, semen and saliva, as well as the interpretation of D.N.A. There was no dispute between the parties as to Ms. Gornall’s qualifications and I also accepted that she was qualified to provide expert evidence in these areas.

[5] The evidence from the Defence consisted of testimony from the accused, G.M., as well as testimony from S.T., the mother of the complainant and partner of the accused and A.M.M., the accused’s sister. I will now review the evidence.

The Evidence

[6] In the sections that follow, I will set out the background facts, and then outline the key elements of the evidence presented by the Crown and the Accused. Once I have done that, I will then outline the law and set out my conclusions on this case.

a) The Background Evidence

[7] The Complainant turned eighteen (18) right before the start of the trial. As a result, she was sixteen when the events in this case happened. For clarity, she was sixteen before she moved in with her mother and the accused.

[8] S.T. has nine children, of which the Complainant is one. S.T. has not raised any of the children, and had no contact with the Complainant for a number of years prior to 2015. The Complainant was living with her aunt, J.R., who had formal custody of the Complainant at all material times. The complainant also lived with her full brother, who is a year older than her, as well as one of her aunt’s children.

[9] In the fall of 2014, the Complainant got into an incident at school. As a result, J.R. decided that the Complainant should be home schooled, and arranged for the teachers to correspond with her and send her the homework. The Complainant did not like being home schooled as she found it boring.

[10] In the late spring of 2015, the Complainant had a chance encounter with her mother, S.T., who she had not seen for quite a number of years. Shortly after that encounter, S.T. obtained and delivered a birthday present to the Complainant.

[11] As a result, in the summer of 2015, the Complainant wanted to go and live with S.T., her mother, so that she could go back to school, rather than being home schooled. The Complainant moved into the one-bedroom basement apartment that S.T. shared with the accused in early September of 2015.

[12] As I understand it, the apartment where the accused, the complainant and S.T. lived was a one bedroom basement apartment. This apartment had a kitchen, bathroom, laundry room, living space, and one bedroom. There were doors at the front and the back of the apartment, and the back door led out to the backyard.

[13] Ultimately, the Complainant did not go back to school, as S.T. did not obtain custody of the Complainant. The Complainant spent three months living with the accused and S.T., and then returned to live with her aunt, J.R.

[14] The accused and S.T. have an intimate relationship. They have been together for approximately four years and are considering marriage although they have not formalized anything.

[15] Shortly before the Complainant went back to live with J.R., she was arrested by the police in a Sears store and was going to be charged with shoplifting. S.T. was taken to hospital right around the time this incident occurred. J.R. attended at the Sears store, but the complainant went home with the accused.

[16] There is a significant evidentiary dispute about how the Complainant came to leave the apartment where she lived with S.T. and the accused, as well as what was said about this departure. I will address that dispute below, but it is clear that the Complainant left the basement apartment where she had been living with the Accused and S.T. in mid-December of 2015. She then went to the police and made the complaint that led to these charges. She gave two statements to the police, one on December 17th, 2015 and one on December 28th, 2015. Both statements were adopted into evidence under section 715.1 of the Criminal Code.

[17] The complainant testified that there were approximately twenty (20) sexual encounters, including oral sex and intercourse, between her and the accused in the time that she lived in her mother’s house. The accused denies that anything ever happened.

[18] In addition to these background facts, the parties agreed on a series of admissions as follows:

1. Identity
2. The continuity of items seized from the scene following their seizure and removal from the scene
3. That [G.M.] provided a sample of his DNA to the Peel Regional Police and the continuity of that DNA sample

[19] I accept these admissions as facts in this case.

b) The Crown’s Evidence

[20] As noted above, the Crown called a number of witnesses. Key points from the evidence that those witnesses gave follows.

The Complainant

[21] The complainant had lived with her aunt, J.R., from the time she was a baby up until her sixteenth birthday. She had had no contact with her mother for most of her life, and some limited contact with her father prior to her sixteenth birthday. She re-initiated contact with her mother in the summer before her sixteenth birthday. There was some discussion, particularly over text messages, about the complainant coming to live with S.T. and the accused.

[22] The complainant testified that she moved into the one bedroom apartment that her mother, S.T. and the accused shared right at the end of August, 2015. She had wanted to move into her mother’s house because her aunt, whom she had lived with, was home-schooling her as a result of some incidents that took place at school in October of 2014. The complainant had wanted to go to school. She also wanted to be allowed out to visit with friends more regularly than J.R. permitted.

[23] When the complainant moved in, S.T. discussed the rules of the house with her. The complainant testified that S.T. told her that the accused would play a father role with her, but that there was no discussion about this role between the complainant and the accused.

[24] The complainant testified that she started to have sex with the accused approximately two weeks after she moved in. The first night that she and the accused had sex, the complainant testified that her mother was on crack cocaine and other substances, and that she had locked herself in the bedroom. The complainant also testified, at trial, that her mother had passed out in the bathroom, although this was not mentioned to the police.

[25] The complainant testified that the first time they had sex, the accused suggested that they have sex, and that she agreed, and the two of them had vaginal intercourse on the couch in the living room. The complainant testified that they had vaginal intercourse approximately twenty (20) times between the first occasion, in mid-September, and when she moved out of the house in mid-December. The complainant testified that she had used drugs, principally marijuana, before most of these sexual encounters.

[26] The complainant testified that the drugs were purchased for her by the accused or by S.T., although it was suggested to the complainant that her brother was the one who had provided her with marijuana. In response to this suggestion, the complainant testified that she didn’t get marijuana from her brother, but that her cousin was picking up marijuana and selling it to kids in group homes.

[27] She testified that these incidents would happen when S.T. was in the shower or running an errand, or when S.T. had gone off to do her community service hours. In September of 2015, S.T. had been convicted of theft and had been sentenced to perform some community service work.

[28] Just prior to moving out of the house, the complainant, S.T. and the accused were all out shopping. The complainant was arrested for shoplifting. S.T. had a medical emergency that resulted in her going to the hospital, and J.R., the complainant’s aunt was called to the scene. The complainant testified that she went home with the accused on a notice to parent, because the accused told J.R. that the complainant was like a daughter to him. However, the complainant also testified that J.R. signed the notice to parent.

[29] The complainant also testified that the accused told her that she was his daughter/girlfriend. However, the complainant also testified that she never treated the accused as her father.

[30] The complainant moved out in mid-December of 2015. She testified that she left her mother’s apartment to spend the night at J.R.’s house for her brother’s birthday party. She also testified that she had to come back on the Tuesday evening to collect her belongings, as S.T. had decided that the complainant could not live there anymore.

[31] The complainant then gave a statement to the police. In her first statement, the complainant advised that the only sexual activity that she engaged in with the accused was kissing, caressing and vaginal intercourse. She also testified that all of the activity was consensual.

[32] In her second statement to the police, the complainant stated that one of the last few times she had vaginal intercourse with the accused (at the end of November or beginning of December), it was not voluntary, and he forced himself on her. She stated that she was trying to push the accused off of her.

[33] When asked in evidence why she did not mention the non-consensual assault to the police, she testified that she had remembered about it, but that it did not come out because there was a lot to tell the police. The complainant also agreed that, in the second interview with the police, she acknowledged that she told Cst. Vandenbrink that she had forgotten about the non-consensual intercourse. However, she again stated that she did not forget it but that she had a lot of things that she was saying the night she gave her statement.

[34] In addition, in her testimony before me, the complainant testified that she performed oral sex on the accused one or two times, and that she also gave him a hand job on at least one occasion.

[35] The complainant testified about the fact that she had a text message exchange with the accused’s sister, who also testified before me. The complainant acknowledged that, in this e-mail exchange, she might have said that she would rather see the accused in jail than with S.T.

[36] Finally, the complainant confirmed that the laundry in the apartment was all kept in one laundry basket, and would be washed every few days.

Constables Justin Vandenbrink and Jessica Innes

[37] Constables Vandenbrink and Innes both have more than ten years of service with the Peel Regional Police, and both are members of the Special Victims Unit, investigating sex crimes. They both attended at the apartment that the accused shared with S.T. to execute a search warrant.

[38] They both testified that seven pairs of underwear were found in one laundry basket. Constable Innes was the one who searched the basket, and she testified that she found the underwear throughout the basket. One pair of underwear was found in the dryer.

[39] One pair of underwear, that Constable Vandenbrink believed had been worn by the complainant after the last time she and the accused allegedly had intercourse, was sent to the Centre for Forensic Studies for testing. This was one of the pairs found in the laundry basket.

Tanis Gornall

[40] Ms. Gornall is a forensic biologist, and has been employed with the Centre for Forensic Science since 2004. On consent, she was qualified to give an expert opinion on the examination and interpretation of items for the presence of blood, semen and saliva as well as the interpretation of DNA.

[41] She testified about three separate tests that were performed, including one performed on a pair of white Calvin Klein underwear that was seized when the search warrant was executed in this case.

[42] First, testing was performed on a vaginal swab from the complainant. There were no positive findings from this test. Ms. Gornall testified that drainage and activity, such as washing, would eliminate any male DNA over the course of a few days.

[43] Second, a test was done on the white Calvin Klein underwear for the presence of semen. In order to detect the presence of trace amounts (a nanogram or sometimes less) of semen, testing is done for two chemicals, AP and P30. Both are present in high concentrations in semen. If both are found, then semen is present. In this case, the testing revealed that there was semen on parts of the underwear.

[44] Finally, the semen that was present on the underwear was compared to a sample of the accused’s semen. It was determined that the accused could not be excluded as the donor of the sample.

[45] Ms. Gornall testified that, once a person is not excluded as a sample, there are only two outcomes. First, that person is the source of the DNA. Second, that they are not the source of the DNA, and that it is a coincidence. The testing uses a weighting called a Random Match Probability (RMP) to determine the likelihood that there is a coincidence. In this case, the RMP was 1 in 4.9 quadrillion.

[46] Ms. Gornall testified that there could be transference of semen from one item to another if all the items were kept in a laundry basket together. She testified that, in order for there to be transference, there would have to be some pressure on the items and sufficient time for there to be a transference. Similarly, she testified that the semen would have to be wet rather than dry. If the semen were dry, Ms. Gornall testified that there would be significantly more pressure required to transfer semen from one article of clothing to another.

[47] Finally, Ms. Gornall testified that she could not rule out transference in this case, and could not say whether the semen deposit on the underwear was from transference or from vaginal discharge. She stated that, if there had been direct ejaculation on the underwear, she would expect that more semen than was actually present would have been found.

J.R.’s Testimony

[48] J.R. testified that she had raised the complainant from the time that the complainant was a baby. J.R. has had legal custody of the complainant since she was eight years old. She testified about three areas of evidence.

[49] First, J.R. testified that she had spoken to the accused at the complainant’s 16th birthday party, when the complainant was planning to move into the apartment shared by the accused and S.T. J.R. testified that she was assured by the accused that we would be a father figure, or role model, to the complainant, and she was happy with this.

[50] In this same vein, J.R. testified that she spoke to the accused three or four times a week while the complainant was living with him. These conversations, on J.R.’s evidence, were for the purpose of making sure that the complainant was not involved in any drinking or drugs, because she knew that sort of activity went on. The accused assured her that the complainant was not doing any of these things.

[51] Second, J.R. testified that, towards the end of the time that the complainant was living with S.R., she was called to a Sears store, as the complainant’s legal guardian. There had been an issue of shoplifting. J.R. was told by the accused that he would take the complainant home, as he was her father.

[52] Finally, J.R. testified that she was told by the complainant in December that she and the accused were having sex. J.R. encouraged the complainant to report this to the police. J.R. said that the accused having sex with the complainant was not right, and was statutory rape.

c) The Defence Evidence

[53] The accused testified at the outset of the defence’s case. In addition, I heard testimony from S.T, the accused’s partner and the mother of the complainant, and A.M.M., the accused’s sister. Key points from the evidence those witnesses gave follows.

The Accused’s Testimony

[54] The accused testified that he had been in a relationship with the complainant’s mother, S.T. for approximately two years in the summer of 2015. The accused testified that he met the complainant for the first time in the summer of 2015, shortly before she moved in with them.

[55] The accused testified that he did not want the complainant to move in with them because he knew what sorts of problems that teenagers could cause. However, it was S.T.’s decision that the complainant move in, and the accused accepted that. He accepted this in part because he understood that the complainant was being abused by J.R.

[56] He first met J.R. on the day that the complainant was moving in to the apartment where the accused and S.T. lived. J.R. told the accused to keep the complainant safe, and the accused agreed that he would do so.

[57] The accused testified that he was not responsible for disciplining the complainant, or for assigning her chores. At trial, the accused also testified that he had never assigned the complainant a single chore, and was not involved in trying to get the accused enrolled in school. However, the accused told the police that “we tried to get [the complainant] into school” when he gave his statement.

[58] The accused explained that a typical day would involve watching TV, chopping wood for the fireplace and various chores. The wood would be chopped by S.T. or by the accused. The complainant was around regularly, and would occasionally be out visiting with friends.

[59] The accused also testified that the complainant was bugging him and flirting with him starting about a week after she moved into the house. She would also follow him around the house, as well as showing him pictures she had taken of herself with her cellphone. He specifically recalls the complainant poking him on one of the first few days she was living in the home. The accused testified that this flirting was bothering both him and S.T. and was having a negative effect on their relationship.

[60] The accused also testified that the complainant would call for S.T. if she heard S.T. and the accused having intercourse during the night.

[61] The accused testified that there would be times when he would be left alone in the apartment with the complainant, and there was no rule against him being left alone in the apartment with her. He testified that he would be alone with the complainant if, for example, S.T. went out to the store to buy cigarettes, or if she was in the shower. However, the accused testified that he would not be alone with the complainant at night, as he and S.T. went to bed at the same time.

[62] When S.T. went to do her community service hours, the accused testified that he would go with her and would continue travelling on the bus to visit his parents in Etobicoke. The accused also testified that he visited his parents in Etobicoke for an overnight, or a few days on a regular basis.

[63] The accused testified that there was an incident where the complainant was caught shoplifting at a Sears store. On that occasion, J.R. came to the store but the complainant went with the accused to see S.T. in the hospital, because S.T. had had a mild heart attack.

[64] The accused testified that the complainant left the house in December after he and S.T. decided that he would leave the house for a day or two just to see whether the complainant was there because of her interest in the accused. The accused testified that he left the house, blocked the complainant’s phone number and went to his parents. He stated that he left because the complainant was bothering him, and he and S.T. wanted to see whether the complainant would leave the home.

A.M.M.’s Testimony

[65] A.M.M. is the accused’s younger sister. In the fall of 2015, she was living in Arizona, but travelled back and forth to Toronto on a number of occasions. She met the complainant around the time that the complainant moved into the apartment with the accused and S.T. She also saw the complainant in person, with the accused and S.T. on a couple of occasions.

[66] A.M.M. testified that, when she saw the complainant and the accused, she noticed the complainant “hitting on” the accused by trying to sit beside him, put herself between the accused and S.T. if they sat on a couch, and flirting with him.

[67] A.M.M. testified that the complainant told her, in the fall of 2015, that she was in love with the accused.

[68] When A.M.M. found out that the accused had been charged, she had a lengthy text exchange with the complainant. Excerpts of this exchange include the following:

I never told them that he raped me I said it was consented So it was consensual, not rape. Wright? They know that I really do love ur bro So then why u charging him for something he didn’t do Cus he hurt me That’s not a stupid charge, he will end up going to jail for seven years. How is that fair Do you know he will get raped by thousands of guys once they find out he’s on a rape charge Okay at least he will be safe n not have to get beat up by her

[69] In cross-examination, the Crown attorney suggested to A.M.M. that she knew that the accused had sex with the complainant, and that it was a consensual relationship. A.M.M. denied this, and said that she just wanted to have the complainant confirm that she was lying.

S.T.’s Testimony

[70] S.T. is the mother of the complainant, and the common law partner of the accused. She has been in a relationship with the accused for four years and has been his common law partner for three years.

[71] S.T. has a lengthy criminal record. The offences are a number of counts of theft, fraud, failure to comply with court orders and breaches of probation. Her criminal record was marked as an exhibit.

[72] S.T. testified that she had no contact with the complainant from the time that the complainant was seven or eight years old, until shortly before the complainants sixteenth birthday. S.T. testified that she reconnected with the complainant, who wanted to come and live with S.T. The reason that the complainant wanted to come and live with S.T. was that she was being poorly treated by J.R.

[73] S.T. testified that she was responsible for setting the rules for the complainant to follow, and enforcing those rules. She testified that the accused did not really participate in the enforcement of the rules for the complainant. However, S.T. also testified that her plan was to get married to the accused, and that then he would be the complainant’s step-father.

[74] S.T. testified as to what a typical day in the house was, while she was living with the accused and the complainant. S.T. and the complainant would go to church, and would also go grocery shopping. S.T. testified that she did not leave the accused home alone with the complainant often. S.T. testified that she would sometimes go outside to chop wood for the fireplace, and the accused would go with her. S.T. also testified that, when she went outside for a cigarette, the accused would come with her.

[75] S.T. also testified that she and the accused shared the bedroom, and that she was usually up in the mornings before him. She also testified that she would usually feel the accused when he moved at night, as she and the accused were usually in contact when they were sleeping. S.T. testified that she is a light sleeper, and that the complainant would not be with the accused while S.T. was asleep.

[76] S.T. testified that she was required to perform community service as a result of charges in September of 2015. She had to perform her community service hours five times, for four hours each time, between September of 2015 and December of 2015. S.T. also testified that she only did her hours twice when the complainant was living with her and, on both occasions, the accused left the house with her and went to visit his parents.

[77] In terms of the relationship between the complainant and the accused, S.T. testified that the complainant appeared to develop a “crush” on the accused. She also testified that the complainant would wear “provocative” clothes around the accused, and would try to be the center of attention. S.T. also testified that the complainant would try to be next to the accused and would touch him.

[78] S.T. testified that the complainant decided to leave the house, at least temporarily, after an incident at J.R.’s house on December 12th, 2015. The incident allegedly involved the complainant flirting with the accused, and the complainant being told to stop by the accused and S.T. In cross-examination, S.T. also mentioned that the complainant had been spreading a rumour that she and the accused were going to live together.

[79] In any event, S.T., the accused and the complainant all came home on the night of December 12th, 2015. S.T. testified that the next day, there was a discussion in which the complainant was told that she was leaving the house, and that she would have to find somewhere else to live. The complainant left the house on the morning of December 14th, 2015.

[80] S.T. testified that she had intercourse with the accused on the Sunday while the complainant was still in the house, and the complainant was upset by this. S.T. then testified that she had intercourse with the accused a number of times after the complainant left the house and, on at least one occasion, put her underwear back on because house guests arrived shortly afterwards.

The Law

[81] This is a credibility case. As a result, the test that applies is as stated in the well-known passage from R. v. W.(D.), [1991] 1 S.C.R. 742, where Cory J. stated (at 758):

First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, 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.

[82] In conducting the analysis under W.D., it is important to remember two things. First, this analysis is not a formula. Rather, it is a framework for conducting credibility assessments. Second, if I do not know whether or not to believe the accused but I am nonetheless in a state of reasonable doubt based on the evidence that I have heard, then I must acquit the accused.

[83] Then, there is the question of what use I can make of the facts relating to one charge in assessing the other charge. I cannot use evidence relating solely to one charge in considering the other charge. However, I can use evidence in general in my credibility analysis. Indeed, we regularly instruct juries that, in assessing credibility, they should not consider the evidence in isolation, but should do so cumulatively.

[84] Finally, the Crown raised the manner in which I should consider the complainant’s evidence. Specifically, the Crown noted that the complainant was a young witness, and that I should consider the dictum of the Supreme Court in R v. B.(G.), [1990] 2 S.C.R. 57 about assessing the evidence of children as opposed to evidence provided by adults. I have considered this factor in my decision, but I note that the complainant was sixteen at the time of the incidents, and eighteen when she testified before me.

Analysis

a) The Sexual Assault Charge

[85] The complainant testified that, on one occasion in December of 2015, the accused forced sexual intercourse on her in spite of the fact that she did not want it. This incident allegedly took place when the accused and complainant were lying on the bed in the bedroom. The complainant was lying on her side when the accused allegedly rolled her over, took his clothes off, took the complainant’s underwear off and then forced intercourse on the complainant. The alleged assault lasted, on the complainant’s evidence, for approximately three minutes.

[86] The accused denies that this happened. Indeed, he denies any sexual contact with the complainant. I do not find the accused’s evidence to be believable, for reasons that I will discuss more fully below.

[87] However, the evidence when taken as a whole, clearly leaves a reasonable doubt on this charge. I start with the evidence of the complainant. This evidence raised a number of concerns.

[88] There are clear legal principles relating to how triers of fact should consider the evidence of complainants in sexual assault cases. A delay in reporting a sexual assault to the police cannot, standing on its own, lead to an inference that the complainant is somehow less believable. Similarly, complainants in sexual assault trials do not have a higher tendency to fabricate allegations because of ulterior motives.

[89] However, in this case I have the delay in reporting, inconsistencies in the reasons for the delay and contemporaneous evidence that suggests the possible presence of an actual motive to fabricate.

[90] I start with the reporting. When the complainant reported these allegations to the police, she initially reported that all of the sexual activity had been consensual. It was only at her second interview with the police that the complainant identified one of the alleged incidents of sexual intercourse as non-consensual. On its own, this delay might very well be explicable. However, even on its own it is of some concern because the complainant reported sexual misconduct to the police, but did not report the most egregious conduct to them.

[91] This brings me to the complainant’s explanations for failing to report the assault to the police when she reported the rest of the sexual misconduct to them. The complainant offered two inconsistent explanations for her failure to report the sexual assault. First, she testified that she forgot to report it to the police the first time that she was interviewed. Then, in cross-examination, immediately after confirming that she forgot the non-consensual incident, the complainant stated that she did not forget about it, but there were just a lot of things that she was saying to the police the night she gave her first statement. A couple of questions later, the complainant returned to her original answer that she forgot about the non-consensual incident of intercourse.

[92] Then, there is the exchange of text messages between the complainant and the accused’s sister. I have set excerpts of those messages out above. Those messages, when reviewed as a whole, demonstrate three things. First, the complainant had an intense dislike for S.T. by the time she raised these allegations. Second, her statements in these text messages are inconsistent with what she told the police, in particular where she acknowledges that the sexual activity is consensual, and the police know this. Finally, the complainant was of the view that the accused should not be with S.T.

[93] The complainant was cross-examined about the text messages (although they were not put directly to her), and acknowledged that she thought she sent a text message saying that she would rather that the accused be in jail than with S.T. However, the complainant then denied that this statement meant that she wanted the accused taken away from her mother. These explanations are inconsistent, and I find that the complainant wanted the accused taken away from her mother.

[94] In addition, the text messages, produced by A.M.M., suggest that the complainant told A.M.M. that all of the sexual activity that allegedly occurred was consensual even at the time that the complainant was advising the police that some of it was not consensual.

[95] When all of this evidence is considered together, I am of the view that the complainant’s evidence is not sufficiently reliable for me to convict the accused of sexual assault.

[96] As a result, I am not convinced beyond a reasonable doubt that the accused sexually assaulted the complainant, and this charge is dismissed.

b) The Sexual Exploitation Charge

[97] This charge is governed by section 153 of the Criminal Code, which states:

153. (1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, and who (a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person;

[98] In order for me to find the accused guilty of this offence, I must accept, beyond a reasonable doubt, each and every one of the following:

a) That the complainant was between 16 and 18 years old when the events actually took place. There is no dispute of that fact in this case. b) That the accused touched the complainant. c) That the touching was for a sexual purpose. d) That the accused was in a position of authority over the Complainant.

[99] In the circumstances of this case, there is no doubt that, if the touching happened, it happened for a sexual purpose. In this case, the two key disputes between the Crown and the Defence are over whether the accused and the complainant engaged in sexual contact, including intercourse, and whether the accused was in a position of authority over the Complainant.

[100] In assessing the evidence of whether there was sexual contact between the accused and the complainant, I note that the accused denies that such activity ever took place. Therefore, I start with the question of whether I believe the evidence of the accused or the other evidence favourable to the accused, or whether that evidence, on its own, raises a reasonable doubt. I find that it does not for the following reasons.

[101] First, the accused’s explanation of how the complainant came to leave the house in December of 2015 is both inconsistent with the evidence of other witnesses, and internally inconsistent.

[102] The accused testified that he and S.T. had a plan for him to leave the house and go to his parents on Monday, December 14th, 2015. The purpose of this plan was to find out whether the complainant was living with them because she wanted to live with her mother or because she liked the accused. The complainant, on the other hand, testified that she left because she was told to by S.T. that she was being kicked out of the house.

[103] S.T.’s evidence on this issue originally supported the accused’s evidence, but became unclear when S.T. was cross-examined. At one point, S.T. suggested that there had been a confrontation at J.R.’s house on December 12th, 2015 and that this was the reason that the complainant left. S.T. also suggested that part of the reason that the complainant left was that she had heard S.T. and the accused having intercourse on the Sunday. It is clear to me from both the evidence of S.T. and the evidence of the complainant, that there was an actual argument of some sort between at least S.T. and the complainant that resulted in the decision for the complainant to leave the home.

[104] The accused’s testimony on this point is also internally inconsistent. In his evidence at trial, he stated that the plan was for him to leave for a day or two. However, in his statement to the police, the accused stated that he had left, and was not coming back until the complainant left the house. This explanation is inconsistent with what the accused said at trial. I reject the accused’s evidence on this point.

[105] Second, there is the issue of chores. At trial, the accused testified that he had never asked the complainant to do any of the chores around the house. However, in his statement to the police, the accused stated that he would sometimes ask the complainant to help with tasks around the house. I am of the view that the evidence that the accused gave at trial was tailored to minimize the amount of authority he exercised over the complainant, and I reject it.

[106] Third, there is the issue of the accused’s role with the complainant more generally. In terms of whether the accused was in a parenting role to the complainant, he testified that he had no authority over her, was not involved in trying to get her into school, and was not responsible for her. However, he acknowledged that he had promised J.R. that he would keep the complainant safe. He also took responsibility for the complainant on the day of the shoplifting incident. These facts are inconsistent with the accused’s testimony on his role with the complainant, and I reject his testimony on this point. The accused’s testimony was, again, tailored to minimize the amount of authority he exercised over the complainant.

[107] Finally, there is the accused’s testimony about how much time he spent alone with the complainant. The accused testified that he went to bed at the same time as S.T. every night, that he was never awake when S.T. was not awake, and that he was virtually never alone with the complainant at night or early in the morning. It defies belief to accept that the accused was never or even almost never left alone with the complainant, and I reject this evidence. Again, this evidence was tailored to demonstrate that the accused and the complainant had less significant amounts of contact.

[108] It is also worth noting that S.T. provided some of the same evidence limiting the contact between the accused and the complainant. I also reject this evidence, as it was also tailored to demonstrate that the accused and the complainant had minimal amounts of contact without someone else present. In particular, I reject S.T.’s evidence that she would always be awake when the accused was awake. It is highly unlikely that, over a three month period, S.T. would have been awake every time that the accused was awake.

[109] The fact that I do not believe the accused, and that I do not find that the evidence in his favour raises a reasonable doubt does not end the matter. I must consider the evidence as a whole. As I noted in the previous section, there were issues with the complainant’s credibility.

[110] In addition, it is worth highlighting a further inconsistency in the complainant’s evidence, namely her description of the initial incident. In her testimony before me, the complainant stated that the first sexual contact was initiated between her and the accused when S.T. was passed out in the washroom after having taken crack cocaine. However, in her statement to the police, the complainant just said that S.T. was in the bedroom with the door locked. Then, in her testimony at the preliminary inquiry, the complainant said that S.T. was passed out because she had been using a whole set of Fentanyl patches. In addition, in her evidence at trial, the complainant said that the patches S.T. was using were nicotine patches, and she was using them at the same time she was smoking. I found this evidence difficult to follow, and difficult to reconcile.

[111] This inconsistency adds to the cumulative effect of the complainant’s evidence.

[112] Given all of the foregoing, the evidence of the complainant alone is not sufficiently strong for me to accept that the accused engaged in sexual activity with the complainant.

[113] I am not left, however, only with the accused’ evidence, S.T.’s evidence and the complainant’s evidence as to what went on in the apartment. In this case, I also have the DNA evidence. I accept that this evidence shows that the accused’s semen was found on a pair of the complainant’s underwear. There was no real dispute that the pair of white Calvin Klein underwear that was tested belonged to the complainant, and the evidence of Ms. Gornall on the fact that the accused’s semen was on the underwear was unassailable.

[114] However, the accused offers an explanation for how his semen came to be found on the complainant’s underwear. Specifically, he states that the semen was on S.T.’s underwear, and was transferred to the complainant’s underwear in the laundry hamper.

[115] The Crown argues that this transference theory is so completely unlikely that I should reject it, and conclude that the semen was on the complainant’s underwear because the complainant and the accused had sexual intercourse. I do not agree.

[116] On reviewing this evidence as a whole, it leaves me with a reasonable doubt for the following reasons:

a) Both the accused and S.T. testified that, after the complainant left the house, they had intercourse a number of times. In particular, on one evening, they had intercourse a number of times and then subsequently had visitors. I accept S.T.’s evidence on this point. b) The complainant, the accused and S.T. all testified that the laundry was kept in one communal laundry basket, and that the complainant’s underwear would have been mixed in with S.T.’s underwear. I accept this evidence. I also note that this evidence was supported by the testimony of both police officers, who testified that there was only one laundry basket that they found underwear in. c) S.T. testified that after having had intercourse on an evening after the complainant left in December, she put her underwear back on, and I accept this evidence. d) Ms. Gornall testified that the amount of semen that they were able to find on the pair of the complainant’s underwear that was tested was a very small amount, less than 500 picograms. An amount of less than 240 picograms is insufficient for testing. Ms. Gornall confirmed that she would have expected to find more semen present if there had been a direct deposit of semen onto the complainant’s underwear. I accept this evidence, and find that there was no direct deposit of the accused’s semen on the complainant’s underwear. e) Ms. Gornall testified that the deposit found on the complainant’s underwear could have been put there from either transference from another article of clothing or from vaginal discharge. f) Ms. Gornall testified that, for the semen to have ended up on the complainant’s underwear by transference would have been unlikely if the underwear had come into contact with dry semen. However, it would be possible for the semen to be transferred to the complainant’s underwear if it was wet when the underwear came into contact with it. Given S.T.’s evidence about sexual intercourse, and visiting guests, I accept that she put underwear that could have had some wet semen on it into the laundry basket. g) This brings me to Crown counsel’s assertion that the transference theory should be rejected because it is highly unlikely. The flaw in this argument is in Ms. Gornall’s testimony. Ms. Gornall was asked whether she could say whether the semen had ended up on the complainant’s underwear by transference or vaginal discharge, and she testified that she could not say which it was. Ms. Gornall did not even say that one was more likely than the other. I do not see how I can find that the transference theory is “highly unlikely” in light of this evidence. Put another way, on the evidence I have before me it is a theory that raises a reasonable doubt. h) Finally, there is the laundry basket itself. There was no evidence that the clothes were in it in any order, or had not been mixed up during the course of the week prior to the execution of the search warrant. As a result, it is entirely possible that the wet underwear that S.T. put into the laundry basket came into contact with the complainant’s underwear and transferred the sample that was tested (which was less than a nanogram) to the complainant’s underwear.

[117] Given that I am left in a reasonable doubt as to the question of whether touching of a sexual nature actually occurred in this case, it is not necessary for me to determine whether the accused was in a position of authority in respect of the complainant, and I decline to do so.

[118] In the result, the charge of sexual exploitation is also dismissed.

Disposition

[119] I find the accused not guilty of both of the charges brought against him.

LEMAY J

Released: November 17, 2017