CITATION: R. v. J.B., 2017 ONSC 7588

COURT FILE NO.: CR-17-23-00

DATE: 20171220

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

J.B.

Defendant/Respondent

J. Nadel, for the Crown

C. Bottomley, for the Defendant/Respondent

HEARD: December 5,6, and 7, 2017

REASONS FOR JUDGMENT

RESTRICTION ON PUBLICATION

Pursuant to s. 486.4 of the Criminal Code an order has been made prohibiting the publication, broadcast or transmission of any information that could identify the complainant.

RICCHETTI, J

THE CHARGES

[1] J.B. is charged that, between October 8, 2012 and July 4, 2012, he did:

a) Count #1 – sexually assault A.C. (s. 271 of the Criminal Code)

b) Count #2 – for a sexual purpose, touched A.C., a person under the age of 16 (s. 151 of the Criminal Code);

c) Count #3 – for a sexual purpose, invite A.C., a person under the age of 16 to touch him (s. 152 of the Criminal Code)

[2] The only issue raised by the defence at trial was a denial of the conduct alleged. Consent is not an issue since A.C. was 15 years old at the time of the allegations and, therefore, incapable of consenting to any sexual activity.

[3] The issue to be decided is whether the sexual activity between the accused and A.C. occurred. If the Crown has proven beyond a reasonable doubt the conduct alleged occurred, the accused will be guilty of all counts. Otherwise, he must be acquitted.

THE EVIDENCE

[4] The Crown called two witnesses: A.C. and her mother, J.C.

[5] The Defence called two witnesses: J.B. and his wife, E.B.

[6] Two Agreed Statements of Fact were filed with the court.

THE BACKGROUND

[7] J.C. and E.B. are sisters. A.C. is J.C.’s daughter. J.C. and A.C. live in Spain.

[8] J.B. is married to E.B. They have two young girls. E.B. and J.B. live in Brampton.

[9] A.C. is J.B.’s niece, by virtue of his marriage to E.B..

[10] The evidence establishes that A.C. had some behavioural issues in Spain while living with her mother. J.C. decided that A.C. would live in Canada with her grandparents for a year. A.C. would go to school in Canada.

[11] A.C. came to Canada in the summer of 2012 for the 2012/2013 school year. A.C. was 15 years old at the time. A.C. lived with her grandparents while in Canada.

[12] A.C.’s school was close to the home of her aunt and uncle, J.B. and E.B.

[13] On many school days, A.C. would go to J.B. and E.B.’s home after school until her grandfather picked her up. J.B. and E.B. were closer to her age, not as “boring” as A.C.’s grandparents and A.C. felt a friendship with J.B and E.B.

[14] On many weekends, A.C. would go over to J.B. and E.B.’s home for the weekend. A.C. would sleep in their basement when she stayed overnight.

THE EVIDENCE

A.C. (the Complainant)

[15] A.C. was 20 years old when she testified about events that had happened when she was 15 years old. Her young age at the time and the traumatic experience of the sexual relationship she described are factors to be taken into account in assessing her evidence.

[16] A.C. testified that she liked to go to J.B. and E.B.’s home because they were friends, allowed her to have beers and had, at one time, given her marijuana.

[17] A.C.’s evidence was that in the fall of 2012, when the two of them were alone, J.B. approached to kiss her in the hot tub. A.C. backed away because she was concerned about E.B. and others finding out what might occur. J.B. persuaded her that sex would be cool and everything would be fine. As a result, A.C. moved towards J.B. and she kissed J.B. This was their first kiss. In A.C.’s statement to the police in 2015, A.C. had told the police that, after A.C. had backed away from J.B. when he tried to kiss her the first time, he “went after her”.

[18] On this first occasion in the hot tub, A.C. testified she “now remembered” J.B. had adjusted her bathing suit bottom and then put his fingers into her vagina. In A.C.’s statement to the police, she had told them she “hadn’t notice” him touching her and didn’t know if he had touched her that night. After these prior statements were put to A.C., she stated she was “pretty sure” J.B. touched her that first night.

[19] A.C. testified that J.B. told her he wanted to take someone’s virginity. However, this was the first time A.C. had told anyone about such statements from J.B. When asked about the difference in her testimony, A.C. testified that “there are many ways to tell a story”.

[20] A.C. testified that consensual sexual activity and intercourse started a week or two later, after school and before her grandfather picked her up. Generally, some sexual activity took place on the way to the basement and sexual intercourse took place in the basement.

[21] A.C. testified that she really wanted to be the person who put the man’s penis into her vagina the first time she had sexual intercourse. She tried to do this the first time she had sexual intercourse with J.B. but was unable to do so – so J.B. inserted his penis into her. When cross-examined whether she had ever told anyone that she had wanted to and tried to put his penis into her the first time, she agreed she had never told this detail to the police.

[22] A.C. testified that this sexual activity and intercourse with J.B. took place once or twice a week after school whenever J.B. was working at home. A.C. testified this occurred for the entire academic year. A.C. testified that she had told J.B. that the sexual activity should stop because E.B. might find out but she also testified that she suggested to J.B. that the sexual intercourse last longer. J.B. told her that no one would notice. A.C. testified that the sexual activity continued because A.C. did not know what to do.

[23] A.C. testified that on one occasion J.B. performed oral sex on A.C.

[24] A.C. testified that on a number of occasions she touched his penis for sexual stimulation including once when she tried to manually stimulate him to have an erection. A.C. testified that she saw J.B.’s penis often and described it including having two testicles. She specifically remembered touching his two testicles. During cross-examination, it was suggested to A.C. that J.B. only has one testicle but A.C. remained firm that J.B. had two testicles. There was no equivocation. A.C. attempted to suggest that J.B. must have had one testicle removed since their sexual encounters.

[25] When A.C. was asked if she had told J.B. that she did not want the sexual relationship to continue, she responded that she “didn’t know exactly” what she had told him.

[26] A.C. was asked about specific sexual activity. A.C. testified that, on one occasion, when J.B. drove her to her grandparents, after a dance competition in around May 2013, they decided to have intercourse at the grandparent’s home. She wanted to have sexual intercourse in her bedroom but J.B. wanted to have sexual intercourse on the green couch in the living room. They had sexual intercourse on the couch before the grandparents returned home.

[27] A.C. described another specific sexual encounter with J.B. about 2 weeks before she was to leave Canada. A.C. testified that they were in the backyard late at night when E.B. got very drunk and went upstairs. J.B. went to check on E.B. When he returned, J.B. told A.C. that E.B. had gotten sick from drinking and had passed out. J.B. wanted to have sexual intercourse. A.C. did not because E.B. was upstairs in the home. She told J.B. it was a bad idea and did not want to go to the basement to have sex. Instead, J.B. and A.C. went into the garage. A.C. testified that she sat on the mini fridge. J.B. pulled her pants down and touched her. J.B. pulled his pants down. They heard the door slam. J.B. backed away. E.B. came into the garage. E.B. grabbed something, threw something and broke a bottle of wine. E.B. started yelling. E.B. pushed A.C. and called her a whore. A.C. curled up in the corner and had an anxiety attack. A.C. felt guilty. J.B. and E.B. argued. A.C. testified that J.B. told E.B. it was only a onetime thing. A.C. agreed with J.B. adding that they were curious about each other. A.C. told E.B. that she felt really sorry and would go back to Spain. All of them went into the house. J.B. and E.B. told A.C. to go downstairs. An hour later E.B. went downstairs. E.B. ripped up an apology note A.C. had written. A.C. wanted to immediately go to her grandparent’s home. J.B. and E.B., especially E.B., refused to let her go because it was late and they had to work next morning. A.C. stayed the night at J.B. and E.B.’s home. E.B. went to work next morning leaving J.B. at home while A.C. was still there. A.C. cleaned their home and talked to J.B. J.B. suggested to her that they had to have the same story to cover “both their asses”. The story was that they had never had sex, only kissed and it was only once. J.B. told her that they did not have to tell anyone the story except E.B.

[28] After the “garage” incident, A.C. testified that she had one further dinner with J.B. and E.B. and her grandparents. But, A.C. started to cry and left the dinner. Later, E.B. told her that what had happened with J.B. was not her fault and A.C. could not tell anyone about it.

[29] A.C. testified she had told J.B. she might be pregnant. J.B. responded that no one could know it was his baby but he would pay support or for her to have an abortion. A.C. described a visit to her grandmother’s doctor in early 2013 because she thought she was pregnant. A.C. also agreed her menstrual period had returned prior to seeing the doctor and she had already had two negative pregnancy tests. A.C. testified that she nevertheless went to see the doctor. When cross-examined as to why she would go to the doctor about her pregnancy when she had had her menstrual period and the two negative pregnancy tests, A.C. defiantly said that the doctor told her that she could still be pregnant but needed further tests.

[30] A.C. told the doctor she was having sex with a neighbor, Ryan. She said this because J.B. had told her no one should know about their sexual encounters.

[31] A.C. testified that, while in Canada, she did not tell anyone about the sexual encounters with J.B. She explained that J.B. had told her she could not tell anyone.

[32] A.C. did have a high school counsellor that she felt comfortable speaking with. She did not tell the counsellor about her sexual relationship with J.B. However, A.C. did speak to the counsellor about her mother’s husband (not her father) beating up her mother. A.C. admitted this was a lie.

[33] After A.C. returned to Spain, her mother was in the middle of a difficult divorce. A.C. and her mother moved to Madrid.

[34] After A.C. returned to Spain, A.C. testified that she did not immediately tell anyone about the sexual encounters with J.B. A.C. said that she began to believe she had lost her virginity to Ryan. She testified that she had not forgotten what had happened with J.B., she just ignored it. Eventually, she came to believe it was a one-time thing with J.B. But, she told the police, in her statement, that she had “forgotten” the sexual encounters with J.B. for several months until she went to a party.

[35] On New Years’ Eve (about six months after her return to Spain), A.C. went to a party. She drank. She was high although she had previously told the police that she was “very high” and subsequently told the court she could not remember if she was high or not. The events at the party reminded her of what had happened with J.B. in Canada. It all came back “kind of”. A.C. testified that she remembered her sexual relationship with J.B. when she was playing a game of truth or dare about losing virginity. When pressed in cross-examination about this recollection, A.C. testified that she had told the police or the Crown about her memory returning during the truth and dare game. However, the police and Crown confirmed to this court, by way of an agreed statement of fact, that A.C. had not previously told them about the truth and dare game.

[36] A.C. testified that she decided to tell her mother about J.B.

[37] When she got home from the party, she told the mother that she had kissed J.B. the one time. A.C. testified that her mother told her she needed to see a psychologist. A.C. testified that she did not tell her mother about the sexual relationship with J.B. because she did not want her mother to think she was a whore.

[38] A.C. testified that she started to see a psychologist within a few days.

[39] A.C. also met with other sexual assault victims who described their sexual assault experiences. The psychologist told A.C. that her memory would be blurry. The word blurry is the same word A.C. used to describe her memory of the events at the preliminary hearing but resisted describing her memory in this fashion at trial. A.C. also spoke with her mother’s current boyfriend about his personal sexual assault experience.

[40] A.C. testified that there were text messages that corroborated her sexual activity with J.B. but she did not have them.

[41] Eventually, A.C. told her mother about the sexual activity with J.B. little by little. The timing of when and what A.C. told her mother was not in evidence. However, in A.C.’s cross- examination, A.C. testified she had told her mother that J.B. had forced her to have sexual intercourse – ripping her underwear. Exactly when or why A.C. told her mother this is not clear. When cross-examined on this A.C. denied that her “story” to her mother had changed.

[42] A.C. testified that she had gone over her statement with her psychologist.

[43] The Spanish police became involved but the timing, extent and what was disclosed to the Spanish police is not known.

[44] A.C. remained firm in her evidence that she had had a sexual relationship with J.B. and remained firm about the garage incident where E.B. had seen their sexual encounter.

J.C. (the Complainant’s Mother)

[45] J.C. testified that, when A.C. returned, she was distant, isolated and rebellious.

[46] J.C. testified that A.C. started telling her what had happened after Christmas 2013. A.C. first told her that she had done “something wrong”. A.C. later told her that J.B. had kissed her. At some point (it is not clear when) A.C. told her as, “one of the original stories”, that J.B. had violently forced A.C. to have sexual intercourse, having ripped her panties off. A.C. had told her E.B. had seen the ripped panties.

[47] J.C. sent A.C. to a psychologist and psychiatrist the next day. A.C. has seen psychologist(s) and/or psychiatrist(s). There is no further information regarding A.C.’s professional treatment, who, how long it continued, or any details regarding A.C.’s disclosure of what had happened in Canada with J.B.

[48] Ultimately, the police in Spain became involved. It is not clear when the Spanish police became involved, what they did, or what A.C. told the Spanish police. The Spanish police eventually told J.C. that they could do nothing because J.B. lived in Canada.

[49] Eventually, (it is not clear when) A.C. told her mother about the sexual activity with J.B. A.C. was a “complete mess” when she finally opened up to J.C. At one point, J.C. took A.C. to the hospital because she was concerned about suicide.

J.B. (the Accused)

[50] J.B. denied that he ever kissed A.C. or had any sexual activity with her.

[51] He denied the version of events describes by A.C. In addition to his general denial of A.C.’s version as to what happened, J.B. specifically denied the incident in the hot tub and the “garage” incident.

[52] J.B. testified that he had one testicle as one had been removed some 28 years earlier. A photo was made an exhibit. There was no real challenge to this evidence.

[53] J.B. heard of A.C.’s allegations from E.B.’s parents.

[54] The cross-examination of J.B., confirmed many of the peripheral details of A.C.’s testimony (such as the existence of a hot tub, A.C. slept in the basement…) but did not shake J.B.’s denial that the sexual activity described by A.C. had never happened.

E.B. (J.B.’s Wife)

[55] E.B. testified that the “garage” incident never happened. She denied that she ever spoke to A.C. regarding any sexual involvement or kissing between A.C. and J.B. E.B. testified that she did not have any suspicions regarding sexual activity between J.B. and A.C..

[56] E.B. denied having provided any marijuana to A.C. She agreed she provided one beer to A.C. during dinner, but only after J.C., A.C.’s mother, had approved this.

[57] E.B. denied there were any messages on A.C.’s cell phone suggestive of any inappropriate sexual conduct between A.C. and J.B.

[58] E.B. testified that J.B. has one testicle and has had only one testicle (which is obvious from the photo and her personal observations) since they had started going out in 1994.

[59] Again, the cross-examination confirmed details of A.C.’s testimony regarding such items as a hot tub, having a beer, staying over etc. However, E.B. remained firm about not knowing about any sexual contact between J.B. and A.C. and a complete denial of the garage incident.

[60] During cross examination, the Crown suggested that J.C., had sent a 7 page email to E.B. setting out A.C.’s allegations of the sexual activity between J.B. and A.C. E.B. admitted receiving the email but stated that the allegations in the email were quite different than made by A.C. at this trial including allegations by A.C. of J.B. being brutal, beating her, and manipulating her. The Crown stated he had the email from J.C. in his hand and suggested to E.B. her summary was not accurate. E.B. did not agree. The Crown did not pursue the matter with E.B. and did not produce the email. What was in the email (nor the date of the email) is not part of the evidence.

[61] In cross-examination, E.B. testified that she had refused to give the police a statement in December 2015. In re-examination, E.B. testified that, when the police contacted her, she obtained independent legal advice and, after receiving the legal advice, she chose not to give a statement to the police.

[62] In cross-examination, E.B. admitted that her husband was the breadwinner. The Crown suggested it would be easier to say that the sexual encounters between J.B. and A.C. had never happened. However, E.B. was adamant in her response that it is not “easier to say” that the allegations had not happened pointing to two young girls at her home and a family that was already torn up over A.C.’s allegations.

[63] Despite being pressed in cross-examination, E.B. strongly denied that she had caught J.B. and E.B. in the “garage” incident as A.C. described.

ANALYSIS

[64] The accused testified. A W.D. analysis is necessary. The first issue is whether J.B.’s evidence, that he did not have any sexual relationship or touching with A.C., is believed – if so J.B. is to be acquitted. Even if this court does not believe J.B.’s evidence, if his evidence leaves this court with reasonable doubt about the allegations - J.B. is to be acquitted. Even if J.B.’s evidence is not believed and does not leave this court with a reasonable doubt, only if the whole of the evidence proves beyond a reasonable doubt that J.B. sexually touched or had a sexual relationship with A.C. can he be found guilty.

J.B.’s Denial of the Conduct Alleged

[65] J.B.’s evidence was a complete denial of the conduct alleged by A.C. By the very nature of a denial, an accused cannot give details about matters he or she says did not occur. As a result, the trier of fact must look to internal and external consistencies and inconsistencies. These, together with other factors such as demeanor, can assist in determining whether the accused’s evidence is to be believed.

[66] In this case, J.B. was not shaken in the cross-examination. There are no internal inconsistencies with J.B.’s evidence. As for external inconsistent evidence, we have the evidence of A.C. As for external consistent evidence, the evidence of E.B. that the garage incident never occurred, is significant evidence supporting J.B.’s denial. I acknowledge that there is a possible motive for E.B. to lie about the events given that she is still married to J.B. and J.B. is the primary financial supporter of the family. Nevertheless, I am satisfied that E.B.’s testimony was credible and reliable. E.B. is a strong willed individual who would not have been shy or reluctant to “deal” with her husband’s sexual impropriety (rather than cover it up) if she had caught them as A.C. described. E.B.’s evidence that the “garage” incident did not happen makes more sense when compared A.C.’s evidence that E.B. let A.C. stay in her home overnight and left J.B. and A.C. alone the next morning when E.B. went to work.

[67] Having considered and assessed J.B.’s evidence and the balance of the evidence, this court is not prepared to fully accept J.B.’s evidence that the sexual activity did not happen. There are several aspects to his evidence which raise some doubt. For example, the opportunities for the sexual activity described by A.C. occurred after school when only the two of them were present. J.B. appeared defensive when dealing with this after school timeframe. He suggested he did not want A.C. around his home during this period because she interfered with his work. If J.B.’s work was interfered at home when A.C. was present after school for that brief period, it would have been a simple matter for J.B. to have performed his work at the office or simply told A.C. to wait at school for the brief time until her grandfather picked her up.

[68] Having stated that I do not fully accept J.B.’s denial evidence, this court is satisfied that J.B.’s denial of the alleged conduct does leave this court with serious doubts as to whether the alleged sexual relationship between J.B. and A.C. occurred.

[69] The primary reasons for this court’s conclusion are that:

a) J.B.’s evidence, albeit a straightforward denial, was not seriously or negatively impacted by the Crown’s cross-examination;

b) A.C. was adamant about the garage incident was witnessed by E.B. and the aftermath that followed. E.B.’s denial that the garage incident occurred is evidence consistent with J.B.’s denial of conduct evidence. E.B.’s evidence was credible and reliable; and

c) For the reasons set forth below, this court has concerns regarding the reliability of A.C.’s evidence.

[70] Having found that there is serious doubt that the sexual activity or touching described by A.C. ever happened, J.B. is hereby acquitted.

[71] However, let me go on to deal with why, in any event, the balance of the evidence failed to establish beyond a reasonable doubt that the alleged sexual activity between J.B. and A.C. happened.

A.C.’s Testimony

[72] A.C.’s evidence is critical to the Crown’s burden of proof.

[73] A.C. believed what she had told the court. There was some embellishment and attempts to fix certain inconsistencies from her prior statement to the police and evidence at the preliminary inquiry, but overall this had little effect on this court’s assessment of A.C.’s evidence of the events she described when she was 15 years old.

[74] The Crown suggested that A.C. may have misspoken on occasion because of language issues. I do not accept this submission. In my view, A.C. had a good command of the English language. When she did not understand a question, she asked counsel to repeat or rephrase the question. Her answers to the questions were entirely appropriate and clear.

[75] A.C.’s evidence as to why she told the doctor she saw in Canada that she was having sexual intercourse with Ryan, rather than J.B., is entirely understandable in the circumstances. She would not want to tell the doctor of her sexual activity with her uncle, J.B.

[76] A.C.’s failure to disclose to anyone her sexual activity with J.B. in Canada is also understandable in the circumstances. Her mother was J.B.’s sister-in-law. No doubt, A.C., even at 15, would have known the consequences of divulging the sexual activity to her mother and the entire family. The fact that a sexual assault victim may have trusted persons to whom they could disclose the sexual assault (such as the counsellor), does not mean that a sexual assault victim will disclose it or that they should not be believed if they failed to disclose it, as there may be many reasons for the non-disclosure.

[77] A.C.’s incremental disclosure to her mother is also not a reason, by itself, to question the reliability of A.C.’s evidence. Disclosure from sexual assault victims can take many forms including delayed or incremental disclosure. Again, the consequences of A.C. disclosing to her mother the sexual activity with J.B., would have been known to A.C. causing her to be guarded and reluctant to fully disclose the sexual activity she alleges with J.B.

[78] Notwithstanding the above, there are several serious concerns regarding the reliability of A.C.’s testimony:

a) The evidentiary gap;

b) The garage incident; and

c) Other Inconsistencies.

The Evidentiary Gap

[79] Where there are multiple accounts of an incident, a trier of fact must consider any material inconsistencies in the accounts, as well as material inconsistencies between present testimony and prior accounts. Material inconsistencies may signify unreliability. But, material inconsistencies may also be due to the complainant’s age, personal or unique reaction to the events, the length of time since the events, the result of delayed and incremental disclosure and other possible reasons. Any material inconsistencies must be assessed in the particular circumstances of the case and the particular complainant.

[80] The difficulty in this case is, not that A.C.’s account of the sexual relationship changed over time, but rather that the description of the alleged sexual relationship changed after A.C. had seen a psychologist(s) and/or psychiatrist(s), discussed the matter with other sexual assault victims including her mother’s boyfriend, and pursued certain allegations with Spanish police. These meetings, discussions and statements by A.C. occurred over many months, if not years. The substance of what was discussed, with who and the effect on A.C.’s alleged sexual relationship with J.B. cannot properly be assessed. Exactly, how or why the allegations went from kissing to a rape to a consensual sexual relationship is not known. Is there a good reason for the change in the description of what happened with J.B.? Was A.C. influenced by the professionals, the other sexual assault victims, the Spanish police? The court does not know and cannot make a proper determination. But, the court does know that A.C.’s description of what occurred did change significantly during this period of time. With this large evidentiary gap, this court cannot properly or fully assess the impact of such material inconsistencies in A.C.’s evidence.

[81] The Crown submits that when A.C. described the sexual activity as “rape” it was because A.C. wanted to avoid describing the consensual sexual activity with J.B. The difficulty with this submission is that A.C. did not testify to this effect. The Crown did not ask A.C. questions about her later description of the events as a “rape” to her mother or other possible changes to A.C.’s description of the events. As a result, A.C. never explained the evolution of her description of the sexual activity with J.B. What the Crown suggests would be for this court to embark upon speculation as an explanation for the “rape” description of what occurred.

[82] The Crown’s submission that the Defence could have brought a third party record’s application to obtain this information from the professional(s) or the Spanish police would reverse the onus. The onus is on the Crown to prove the allegations. The absence of evidence can create a reasonable doubt. It does in this case.

The Garage Incident

[83] A.C.’s evidence was firm that the garage incident occurred and she described what happened after the garage incident. Yet, this evidence is completely contradicted by E.B. and J.B.

[84] The Crown admits that E.B.’s evidence was not shaken by the cross- examination but submits that the court should consider the fact the Crown did not have a statement from E.B. from which to cross-examine. This is not a proper basis to discount E.B.’s evidence or find it less reliable.

Inconsistencies

[85] There are a number of material inconsistencies in A.C.’s evidence or reasons why her evidence is viewed with some caution.

[86] A.C. told her mother in Spain that J.B. had forcibly sexually assaulted her, to the point of ripping her panties. During the trial, no such testimony was given by A.C., instead, saying that it was a consensual relationship.

[87] A.C. testified that J.B. put his fingers into her vagina the first time they kissed in the hot tub. A.C.’s statement to the police and at the preliminary was essentially she didn’t remember any touching by J.B. When confronted with this inconsistency, she testified she “now” remembered and eventually said she was “pretty sure” about the touching.

[88] A.C. testified that J.B. had two testicles. There was no equivocation – A.C. remembered it. When confronted with the fact J.B. only had one testicle, A.C. did not resile from her evidence but suggested possible explanations that were consistent with her evidence that J.B. only having one testicle. J.B. has one testicle. It is obvious from the photos and his evidence. The Crown did not even challenge J.B. or E.B. on this issue.

[89] A.C. testified that, in the hot tub after J.B. tried to kiss her, she physically moved to and kissed J.B. However, A.C. had told the police that it was J.B. who had “gone after” her to kiss her.

[90] When cross-examined about why she would go to the doctor in Canada over a concern of being pregnant despite having had her menstrual period prior to the doctor’s visit and two negative pregnancy tests, A.C. appeared to embellish and, for the first time, added that the doctor told her she could still be pregnant and needed more tests. There was no further evidence of tests or explanation offered as to how this made any sense.

Other issues

J.C.’s Testimony of Change in A.C.’s behaviour

[91] The Crown asks that this court consider J.C.’s evidence of A.C.’s changed behavior and attitude after returning to Spain to be some evidence that A.C.’s sexual allegations are true. The first difficulty with this submission is that A.C. did not testify that her behavior changed because of the sexual assault. Even J.C. did not testify that A.C.’s behavior was due to the sexual assault allegations. Secondly, A.C.’s mother was in the midst of a difficult divorce and was uprooting A.C. from one city to another. What was the cause of A.C.’s changed behavior? The cause of A.C.’s behavior and attitude change cannot be determined in the absence of any evidence, expert or otherwise. This is not a common sense conclusion. It would be pure speculation to draw the inference the Crown seeks.

Motive

[92] The Crown submits that A.C. had no motive to lie about the allegations. The existence or absence of a motive by A.C. to fabricate is a relevant factor to be consideredalthough the burden of proof is upon the Crown. The defence need not prove a motive to fabricate.

[93] The Defence suggests that A.C.’s motive for fabricating the allegations was to get J.C. to be more supportive and understanding of A.C. after A.C.’s return to Spain when the mother daughter issues continued. In my view there is an insufficient evidentiary foundation to make a finding of fact, one way or the other, on this issue. I am not prepared to find that A.C. had a motive for lying.

[94] In any event, the absence of an apparent motive to lie is not a reliable basis to assess credibility. See R. v. Sanchez, 2017 ONCA 994:

[25] It is recognized that whether a person does or does not have a motive to lie is not generally a reliable basis upon which to assess credibility. Certainly the absence of any apparent motive to lie is an unreliable marker of credibility. There are simply too many reasons why a person might not tell the truth, most of which will be unknown except to the person her/himself, to use it as a foundation to enhance the witness’ credibility. Consequently, it is generally an unhelpful factor in assessing credibility: R. v. L. (L.) (2009), 96 O.R. (3d) 412 (C.A.), 2009 ONCA 413, at para. 44.

E.B.’s failure to give a statement to the police

[95] While I acknowledge there may be circumstances where a witness’ failure or refusal to provide the police a statement may affect their credibility or reliability, I do not accept the Crown’s submission that this court should do so with respect to E.B.’s evidence.

[96] It was clear that E.B. had no obligation to provide the police with a statement and, in this case, E.B. obtained independent legal advice. She then chose not to give the police a statement. Taking that into account as well as the lengthy delay after the events, when E.B. was asked to provide a statement, namely December 2015, I decline to draw an adverse inference against E.B.

[97] In conclusion, I am not persuaded that the Crown’s evidence establishes beyond a reasonable doubt that the alleged sexual activity between J.B. and E.B. occurred.

Conclusion

[98] J.B. is acquitted.

Ricchetti, J

Released: December 20, 2017

CITATION: R. v. J.B., 2017 ONSC 7588

COURT FILE NO.: CR-17-23-00

DATE: 20171220

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

J.B., Defendant/Respondent

Counsel: J. Nadel, for the Crown C. Bottomley, for the Defendant/Respondent

REASONS FOR JUDGMENT

Ricchetti, J

RESTRICTION ON PUBLICATION

Pursuant to s. 486.4 of the Criminal Code an order has been made prohibiting the publication, broadcast or transmission of any information that could identify the complainant.

Released: December 20, 2017