COURT FILE NO.: 506/17

DATE: 2018 05 28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

F.B.

Applicant

Erin Norman, for the Crown

Sweta Tejpal, for FB

HEARD: February 14-16, 2018

REASONS FOR JUDGMENT

Shaw J.

Introduction

[1] The accused, FB, has pleaded not guilty to the following:

I. one count of sexual assault, contrary to section 271 of the Criminal Code, R.S.C. 1985, c. C-46;

II. one count of touching the body of a person under the age of 16 years for a sexual purpose, contrary to section 151 of the Criminal Code;

III. One count of inviting a person under the age of 16 years to touch a part of his body for a sexual purpose, contrary to section 152 of the Criminal Code;

IV. One count of violating a prohibition order for using a computer system to communicate with a person under the age of 16, contrary to section 161(4) of the Criminal Code.

[2] The first three counts are in connection with an incident that occurred on October 16, 2016. At that time of the contact, the complainant, JE, was 15 years old and FB was 43. JE’s evidence is that FB touched her thighs, breasts, and vagina, and penetrated her with his finger without her consent as they drove in FB’s vehicle from Mississauga to Kitchener. FB admits that he was driving JE to Kitchener but denies any touching occurred.

[3] FB does not dispute that at some point, prior to October 16, 2016, he became aware of JE’s age. He admits exchanging texts with her after becoming aware that she was 15 years of age. Given this admission and the terms of the prohibition order which was filed as evidence, which prohibits communication with a person under the age of 16, I find FB guilty of court four.

[4] FB also admits to asking JE for oral sex, when he knew she was 15, but denies that it was for a sexual purpose.

Analytical Framework

[5] Given the conflicting evidence of JE and FB, the three step analysis, as set out at para. 11 of R. v. W.D., 1991 93 (SCC), [1991] 1 S.C.R. 742, must be followed in order to prevent the burden of proof shifting to the accused when credibility assessments are key to the determination of guilt or innocence. The three steps are as follows:

I. If I believe the evidence of the accused, I must acquit him.

II. If I do not believe the accused’s testimony but I am left in a reasonable doubt by it, I must acquit him.

III. Even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[6] At all times, it is important to keep in mind that the accused’s credibility should not be assessed solely in relation to the credibility of the complainant. This is not a credibility contest between JE and FB. The burden remains on the Crown to prove FB’s guilt beyond a reasonable doubt.

[7] In a case such as this, when dealing with two witnesses whose evidence is completely contradictory, an accused is not to be disbelieved simply because the complainant is believed. (R. v. V.Y., 2010 ONCA 544, 258 C.C.C. (3d) 281). An accused is not to be found guilty, after accepting the evidence of the complainant, without properly assessing whether the accused’s evidence, or the evidence as a whole, raises a reasonable doubt. (R. v. J.H., 2018 ONCA 245, at para. 37).

[8] In assessing a witnesses’ credibility and reliability, while I can take into consideration the manner in which a witness testifies, I cannot place over-reliance on demeanour. (R. v. D.P., 2017 ONCA 263, at para. 26, leave to appeal denied 2017 CarswellOnt 18263 (S.C.C.)

[9] Further, it is open to a court to believe all, none, or some of a witness’ evidence. (R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R.3 at para. 65). A trier of fact can 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 253 (ON CA), [2005] O.J. No. 39 (C.A.) at para. 44; R. v. M.M. 2018 ONSC 1022 at para. 143.)

[10] In assessing FB’s evidence, the court must consider his evidence in the context of all of the evidence. (R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 15.)

[11] The mere disbelief of the accused’s evidence will not satisfy the burden of proof upon the Crown (W. (D.) at p. 409). If, after considering all the evidence, the court is unable to decide whom to believe, then the court must acquit. The court must be satisfied, on the totality of the evidence that there is no reasonable doubt as to the accused’s guilt.

[12] Where there are significant inconsistencies or contradictions within a principal Crown witness’ testimony, or when considered against conflicting evidence in the case, the trier-of-fact must carefully assess the evidence before concluding that guilt has been established. (R. v. S.W. (1994), 1994 7208 (ON CA), 18 O.R. (3d) 509 (C.A.) at para. 15, leave to appeal refused [1994] S.C.C.A. No. 290.)

Elements of the Offence

[13] In order to find FB guilty of the first count, which is sexual assault contrary to s. 271 of the Criminal Code, the Crown must prove the following essential elements beyond a reasonable doubt:

1. That FB intentionally applied force to JE;

2. That JE did not consent to the force that FB intentionally applied;

3. The force applied took place in circumstances of a sexual nature; and

4. That FB knew that JE did not consent to the force that FB intentionally applied.

[14] In order to find FB guilty of the second count, which is sexual interference contrary to s. 151 of the Criminal Code, the Crown must prove the following essential elements beyond a reasonable doubt:

1. That JE was under 16 years of age at the time;

2. That FB touched JE;

3. That the touching was for a sexual purpose.

[15] Lastly, in order to find FB guilty the third count, which is inviting a person under the age of 16 years to touch his body for a sexual purpose, contrary to s. 152 of the Criminal Code, the Crown must prove the following essential elements of the offence beyond a reasonable doubt;

1. That JE was under 16 years of age at the time;

2. That FB invited JE to touch his body; and

3. That the touching that FB invited was for a sexual purpose

Review of the Evidence

Events Preceding the Alleged Assault

(a) Initial Online Exchange

[16] JE gave a video-recorded statement to the police on October 17, 2016. She adopted the contents of the statement when she testified. The recording was admitted into evidence, with FB’s consent, pursuant to s. 715.1(1) of the Criminal Code.

[17] JE and FB met over a social media application called Whisper in the early September 2016. JE was 15 years of age at the time. They communicated by exchanging messages on Whisper and then moved to communication via text messages. They communicated almost daily.

[18] Whisper is a social media application that is downloaded for free from the Apple Store. It allows people to post messages or thoughts, anonymously. Others with the application can read what you post and respond either publically or by sending a private message directly only to the person who posted. According to JE, she found comfort in being anonymous and not being judged and being able to post about her feelings. She stated that as a user, you can also communicate with anyone who uses the application without disclosing your identity.

[19] JE’s evidence was that she downloaded the application onto her phone sometime in late August or early September 2016. There were terms and conditions for the application that she did not read. Her evidence was that she did not post any personal identifiers on her profile.

[20] FB downloaded the Whisper application near the end of August 2016. He personalized his profile page by saying he was a 39 year old male. He went by the name of Wells as his profile name. At the time he created his Whisper account, he was actually 43 years of age. According to FB, when Whisper is downloaded, the application states that it is for those who are aged 17 plus.

[21] JE’s evidence is that she posted for the first time in the early part of September 2016. She and her family had moved from Kitchener to Mississauga in July 2016, as her older sister was starting university and her parents thought they could find better jobs. JE was just starting grade 10 at the time. She was not happy about moving away from Kitchener, as she had to leave her childhood friends and her boyfriend. She did not drive, and her parents would not agree to drive her to Kitchener to see her friends, as they worked nights as cleaners and were often too tired.

[22] According to FB, JE’s first posting was about feeling sad about moving away from Kitchener. His evidence was that in her profile it stated that she was in the 17 plus age group. JE could not recall that or whether she posted any information about her age.

[23] FB’s evidence was that he responded to JE’s first post by talking about how life changes when you move and not to let it get you down. It was FB’s and JE’s evidence that they then messaged each other through the Whisper app for approximately 1 to 2 weeks. It was JE’s evidence that FB would initiate the message conversations, whereas FB’s evidence was that they both did. According to JE, in addition to talking about being sad and missing her boyfriend, she would talk about how her day was going, what she was doing, and about going to class. JE’s evidence is that early on in this exchange, FB asked her about her age and she said she was 15. Her evidence was that FB did not respond. She could not recall if he told her told his age, but she understood that he was in his 30s.

[24] FB’s evidence is that when he asked JE her age when he first messaged her, she said she was 17. The first time she told him she was 15 was after they first met in person, and he bought her alcohol that she requested. According to FB, he told JE that he was 39.

[25] After approximately 1 to 2 weeks of exchanging messages on Whisper, JE suggested that she and FB communicate via text as Whisper used data on her phone and she had a set amount of data she could use each month. Both FB and JE agreed that from that point forward, they would only communicate by way of text messages. JE’s evidence was that she deleted all messages on Whisper as her inbox would get full.

[26] According to JE, she and FB continued to have daily contact by way of the exchange of text messages.

[27] It was both JE’s and FB’s evidence that JE spoke a lot, through her messages, about her ex-boyfriend and that she was lonely and upset about moving.

(b) The Alcohol Incident

[28] It was the evidence of both JE and FB that there were two conversations about alcohol before FB bought JE alcohol. According to JE, the first exchange of messages was when they were still using Whisper in the first two weeks of September. She posted a picture of alcohol and a message about wanting to forget. According to JE, FB replied to that posting but she could not recall what he said.

[29] The second time JE mentioned alcohol was in a text message to FB. Her evidence was that she was upset about the break-up with her boyfriend, and wanted to forget. It was also her evidence that she wanted to see if FB would buy her alcohol. He agreed, and she asked him to buy her a bottle of vodka and one of Malibu rum. She also told him where and what time to meet to deliver her the alcohol.

[30] According to JE, in a text message, FB told her he would get her alcohol but he wanted money or something sexual in return. Her evidence was that this was the first time he had asked for something sexual. He did not say anything more specific.

[31] JE’s evidence was that she told FB to meet her at a plaza near her high school. Her evidence was that she selected a location that was not too close or too far from her school. She did not want to be too close as teachers might be around, and she did not want to get in trouble. JE went with two of her friends to meet FB between 11 am and noon, which was her lunch hour. She was wearing her school uniform and some foundation, mascara and eyebrow make-up.

[32] According to JE, FB texted her to say he had arrived at the plaza driving a Ford vehicle. She walked from her school with two of her classmates to meet him. She walked over to his car when she arrived at the plaza. He got out of his car and walked to the trunk to get the alcohol. One of her friends stood next to JE and FB spoke to her friend about the potato wedges that she was eating. It was JE’s evidence that she put the alcohol in her bag and left. Her evidence in chief was that she took it home, and then brought it back to school the next day and threw it out in the library, as she did not drink.

[33] This was the first occasion that JE and FB met and the first time they spoke directly to each other. According to JE, she had already told FB that she was 15 when he agreed to buy her alcohol.

[34] FB also gave evidence about two instances involving a discussion of alcohol. According to FB, the first time was when JE texted him and said she was drinking. She told him she was not feeling happy as she was missing her boyfriend. She told him that a friend got her the alcohol. She then asked FB if he could get her alcohol some time, as her friend could not always get it for her.

[35] According to FB, JE contacted him by text about one week later asking if he could buy her alcohol the next day. They discussed what type and where, and when to meet. FB said he could do it and arranged to meet JE during his lunch break at work. FB’s evidence was that he agreed to buy her vodka and Malibu rum, even though he knew she was 17 and underage, because he understood how hard it was to get alcohol at that age. His evidence was that he recalled being that age and waiting outside of an LCBO store for someone to buy him alcohol. It was also his evidence that he knew what it was like to want alcohol and to party.

[36] FB left his work and drove 20 minutes to deliver the alcohol to JE. After waiting in the parking lot for 10 minutes, he saw a girl with long black hair approach his car and, as she got closer, she looked like the person in a photograph she had sent him. She had friends with her but they did not approach him. His evidence was that he told her the alcohol was in the trunk and she reached in, got it, said thank you, and walked away. She was wearing a sweater and grey slacks. The first thing that struck him was that she was not very tall. He also noticed that there was a badge on her sweater. He thought that she did not look 17. It was FB’s evidence that at that point he got very nervous and he texted her and asked her how old she was. She replied to him and said she was 15. According to FB, up to that point, he thought JE was 17.

[37] FB’s evidence was that he told JE, by way of a text message, that he could not talk to her as he had been in trouble with the police for talking to underage people. His evidence was that he was very scared and “pooped his pants”, figuratively-speaking. He then deleted her phone number from his contact list on his phone and went back to work.

[38] JE denies that FB texted her after he bought her the alcohol and told her he could not talk to her as he had already been in trouble.

[39] FB denies asking JE for sex in return for the purchase of the alcohol. He did ask her how she was going to pay, but he did not receive any payment from her that day.

[40] FB and JE agree that there was no further contact between them until October 15, 2016, when she texted him looking for a drive to Kitchener.

(c) Discussion about Sex

[41] FB’s evidence was that he had one conversation with JE, by text, about sex before he bought her alcohol. According to FB, JE texted him and said she missed her boyfriend and was horny for him. FB’s evidence was that he replied and suggested she call her boyfriend and have phone sex. He also suggested that she offer to give him a blow job. He testified that JE replied and said that while she liked to have sex, she did not like blow jobs and did it just to keep her boyfriend around. His evidence was that she also told him that he should never ask her for a blow job, as she would never speak with him again. JE denies this conversation occurred.

(d) Arranging the Drive to Kitchener

JE’s Evidence

[42] On October 15, 2016, at approximately 8 pm, JE’s ex-boyfriend in Kitchener texted her saying he really needed her. JE did not know how to get to Kitchener as her sister did not have a driver’s license, and her parents did not like her ex- boyfriend and would not drive her.

[43] She decided to text FB at approximately 10 pm and ask him for a drive. According to JE, she told FB she needed a ride because a friend really needed her. FB initially offered to drive her in exchange for money or sex, although he did not specify what he wanted sexually. In a further text he then told her that he could not drive her as his son had texted him, and they were going to spend time together the following day. According to JE, she texted him two or three more times after he said he could not drive her, asking that he take her. She told him that her friend really needed her. Eventually, FB agreed to drive her.

[44] She suggested that FB pick her up at a Tim Horton’s near her home at midnight, after her parents left for work. It was agreed that FB would wait in Kitchener “for a bit”, then drive her home.

[45] Before she left her home, JE left a note on her parent’s bed saying she was at a friend’s.

FB’s Evidence

[46] FB’s evidence is that he received a text during the evening on October 15, 2016. He said the text was from a telephone number that was not in his contact list. He asked who was texting and JE replied it was her. She told him she had a new phone number. She told him she needed a favour. She said her friend was going to kill himself and she was worried and had no one else to drive her to Kitchener. His evidence is that he said he could not drive her as he was spending the following day with his son.

[47] According to FB, he then remembered the conversation he had with JE when she told him not to ask her for a blow job. FB testified that he then told JE that he would drive her if she gave him a blow job or pay him. FB testified that he did not want a blow job from her but rather was using the request for a blow job as a means to stop her from texting him.

[48] FB’s evidence was that JE continued to text him after he asked for a blow job. His evidence was that he found it stressful that JE continued to ask him for a drive. He did not put his phone away or turn it off as he was worried about her friend hurting himself. He testified that he had sympathy for the situation JE was in. He also did not want the police to show up and ask him why he did not help this person when he was being told that someone was suicidal.

[49] According to FB, after he told JE he could not drive her, he heard his phone buzzing, notifying him of incoming texts. He decided to pick up the phone and respond to JE. His evidence was that he thought that changing the conversation with her to something else would help so he asked her what she was up to.

[50] At that point, JE told him she had been in the hospital and had tried to commit suicide and was missing her friends and ex-boyfriend. It was his evidence that she told him, via text, that she had found out she had gonorrhea. According to FB, at first he did not believe her, but then he felt he needed to help. After a text conversation of about 25 minutes, he agreed to drive her to Kitchener.

[51] According to FB, JE told her to meet him at a Tim Horton’s at around midnight and she gave him directions. He arrived at 11:45 p.m. but she was not there. He parked next door at a Midas as there was no room to park at the Tim Horton’s. He texted her to tell her where he was. She texted back and told him to pick her up at the Tim Horton’s and not Midas.

(e) The Assault

JE’s Evidence

[52] According to JE, she walked to Tim Horton’s to meet FB. FB picked her up at the entrance to Tim Horton’s. JE’s evidence was that she was wearing grey sweat pants that tie-up and a crop top. Her evidence was that 1 to 2 minutes into the drive, FB asked for sex or to “give him head”. He told her she could do it now. JE’s evidence was that she said no and told him that she had gonorrhea. He said he would wear a condom. She said no, and that ended the conversation about sex.

[53] At some point, while driving on Highway 401 towards Kitchener, JE’s evidence was that FB asked to touch her. She did not say anything. He did not say where and she thought it would be her thigh. He started to rub her mid to lower thigh and she did not say anything. He rubbed higher on her thigh. He then asked if he could touch her “boobs” and she said yes. Her evidence was that she was scared. He touched her breasts over her clothes. She was scared and did not say anything. He then went back to rubbing her thighs. He tried to put his hands down her pants but her seatbelt was too tight and her pants were tied up. He asked her to take off her seatbelt but she said no. He then pulled the seatbelt to make it looser. Her evidence was that he then put his hands down her pants and began to rub her vagina over her underwear. He then moved his hand under her underwear and used his fingers to penetrate her vagina. He did not ask for permission and she did not say anything. Her evidence was that she felt scared and gross. According to JE, FB complimented her boobs and her vagina when he touched her. He touched her with his fingers in her vagina for a few minutes then stopped.

[54] JE’s evidence is that they then stopped at an On Route gas station in Cambridge and FB got gas. She did not get out of the car as she was scared and thought FB might chase her and she would be in more danger. Nothing further occurred after FB got gas and they drove to Kitchener. FB drove with his hands on the steering wheel and he did not touch her or ask for any sexual favours.

[55] JE testified that FB dropped her off in Kitchener at her ex-boyfriend’s home. She walked down the street and waited at a stop sign outside of her ex-boyfriend’s house. She then went to a park with her ex-boyfriend.

[56] According to JE, she called FB after about 30 minutes and asked if he was leaving. Her evidence was that she was scared to get back in the car with FB and her ex-boyfriend told her not to leave. She did not tell her ex-boyfriend what happened in the car with FB. She spent the night in Kitchener at his home.

FB’s Evidence

[57] According to FB, he picked JE up at Tim Horton’s and started to drive. His evidence was that she began to text someone. His evidence was that he told her she only had 30 minutes once they got to Kitchener. He was driving a 2008 4-door blue Ford Fusion with a broken headlight.

[58] FB denied asking JE for a blow job when she got in the car.

[59] FB’s evidence was that he was driving over 120km/hr on Highway 401 as JE asked him to hurry.

[60] FB’s evidence was that while driving, he asked JE if she was going to see her boyfriend in Kitchener and she said yes. He also asked her why her boyfriend was trying to kill himself, and she said it was because he got gonorrhea and did not want to tell his parents.

[61] It was FB’s evidence that JE told him both in person and through text that she tried to kill herself by taking a bunch of pills and had been in the hospital. In the car, FB also asked her about how she got gonorrhea and she said she was not sure. FB testified that JE was not interested in having conversations, but was on her phone texting as they drove to Kitchener.

[62] FB testified that as he drove by Milton and realized he needed gas so he pulled into an On Route. He left his phone, wallet and keys in the car while he got gas. He told JE he had put $20 of gas in the car and she owed him $10 and she said it would be no problem. He also asked her to pay him for the alcohol he bought her, which she told him she drank with her friends.

[63] As they neared the Kitchener exit, FB asked JE if she knew where she was going. She did not, so she used his phone to use google maps and he followed the directions to her ex-boyfriend’s home.

[64] According to FB, he drove to JE’s ex-boyfriend’s home and stopped in front and told her he could wait 30 minutes. He went to a Mac’s convenience store and sat in his car in the parking lot. He texted her 30 minutes later and said he had to leave. She then called him, asked him not to text her and that she needed more time. She asked for 5 more minutes so he said ok. He called her back and said he had to leave, and at that point she said she was going to take an Uber home. He then left and texted her later and said that Uber would be very expensive and asked her again if she needed a ride. She did not answer so he left Kitchener.

[65] FB denies asking to touch JE, touching her breasts, putting his hand down her pants, or touching her vagina at any time. His evidence was that there was about one foot between the driver and passenger seat in the car and that the two seats were separated with a console that had an automatic gear shift, arm rest, and cup holders.

(f) Events Following the Alleged Assault

JE’s Evidence

[66] JE spent the night at her ex-boyfriend’s house and the next morning she texted friends trying to find a ride back to Kitchener. Her parents did not know where she was.

[67] According to JE, when she checked her phone at 9 am that morning, there was a message from FB asking if she was ok and if she got home. There was also a message from her parents and sister. She texted some friends looking for a ride home. Her parents eventually picked her up that evening. JE’s evidence was that her parents were disappointed with her. She described her mother as calm and her dad as frustrated when they arrived to get her. She said they were a little angry with her.

[68] According to JE, her parents could be strict. She had a curfew. Discipline involved having privileges at home taken away and grounding so she could not go out.

[69] When her parents picked her up in Kitchener, they took her cell phone away from her. Her parents asked her why she left their home that evening and she told them she went to see her ex-boyfriend. JE’s evidence was that she initially told them she took a bus to Kitchener as she did not want them to know she got a ride.

[70] The following day her parents drove her to school and picked her up at the end of the day. She did not have her iPhone or iPod during the day. Her parents drove her to the police station after school. She did not know they were taking her there when they picked her up at school. She did not want to go to the police. She was angry with her parents when they arrived at the police station. While she was afraid of her parents’ reaction, her evidence was that this did not impact what she told the police.

[71] Approximately one week later, JE received a text message from FB. Her parents, who had her phone, told her to reply, and what to say. She took a screen shot of that text and sent it to the investigating officer.

[72] JE’s parents kept her phone for a few months. When she got the phone back, there were no old messages as her phone deleted messages after 30 days.

ML’s Evidence

[73] ML is JE’s mother. ML’s evidence was that on the morning of October 16, 2016, she and her husband returned from work at about 6:30 am and realized that JE was not home. ML and her husband work together doing cleaning work at night. JE had left a note that said she had a friend that was in trouble, that she had left to help, and that she would be back before ML and her husband got home. The note was addressed to her older daughter.

[74] She found JE’s iPod and saw that JE had some conversations with friends. She tried to call JE’s cell and texted her, but JE did not respond. ML knew that JE had a male friend in Kitchener and she thought JE might be there. Her older daughter sent him a message at around 10 am and he confirmed that JE was with him in Kitchener. JE told her sister that she would be returning by mid-day. As she did not return home, at 4 pm, ML and her husband left to pick up JE in Kitchener.

[75] When they arrived to pick her up, JE seemed very hostile towards her and her husband. JE would not hug ML. While standing at the door to her friend’s house, JE told her mom that she did not want to return home. She told them that her friend had run into a problem and she was there to help him.

[76] After about 10 minutes, JE was told that she had to surrender her cell phone to return to Mississauga. JE went back into her friend’s house and her parents went back into their car. ML broke down in tears in the car. JE finally agreed to leave with her parents after 1.5 to 2 hours.

[77] ML’s evidence was that when JE got into the car, they did not talk. According to ML, her priority was to get her daughter home. At the time she picked up JE in Kitchener, she did not know how she got to Kitchener.

[78] After they arrived home, JE was told she could not have her phone. ML’s evidence was that there was no yelling.

[79] That night, she and her husband went to work. ML’s evidence was that she and her husband started to wonder about how JE got to Kitchener. ML looked at JE’s phone while at work and she saw a message from someone named Wells. That caught her attention as she had never heard JE talk about anyone named Wells.

[80] When she got home the next morning, ML asked JE who Wells was. She told her parents he was a school friend and he had driven her to Kitchener.

[81] ML’s evidence was that after driving JE to school and learning someone had driven her to Kitchener, her husband became very concerned and thought that there could be something more serious involved. They decided to take JE to the police after school so that JE could tell police who drove her to Kitchener, as her husband said an adult should not be taking a minor from her home in the middle of the night.

[82] ML’s evidence was that she was first told about the alleged assault in FB’s car on October 17, 2017 by the police officer who interviewed her daughter that day. She was shocked and very upset.

[83] According to ML, later that week, a message came to JE from Wells after they had been to the police. They were driving in the car at the time. ML told JE to reply to FB as if nothing had happened, so he would not be suspicious. ML also told JE to send the message to the investigating officer so that he was aware of it.

[84] JE was given her phone back 3 months later as she had become depressed and anxious. According to ML, she did not delete any of the messages or photographs from JE’s phone.

[85] ML’s evidence was that she knew that JE was not happy when they moved away from Kitchener, and she knew JE wanted to go back to Kitchener because of her ex-boyfriend.

FB’s Evidence

[86] FB’s evidence was that he texted JE the next day asking if she made it home safely. She did not reply. He sent another text 2 or 3 days later. In that text, he said he was worried that she may have got in a lot of trouble and offered to drive her again. This last text was the only text filed as evidence.

Position of the Parties

[87] It is the Crown’s position that the complainant’s evidence that FB sexually assaulted her and invited FB to touch his body for a sexual purpose is credible and should be believed.

[88] Crown counsel submitted that the reason FB bought alcohol for JE was part of his method to groom her to eventually engage in sex, as he requested from her on more than one occasion. He bought her alcohol hoping it would lead to further contact. According to the Crown, FB did not insist on payment at the time he bought her the alcohol as, again, he was doing her a favour that he wanted to lead to another.

[89] It is the Crown’s position that it is implausible that FB wanted to drive JE to Kitchener to help her and a friend, whom he had never met. According to the Crown, FB’s motivation was not to help JE, but to engage in sexual activities with her. The Crown urges me to reject FB’s evidence.

[90] The defence’s position is that JE is not a credible or reliable witness and that the Crown has failed to discharge its burden to prove, beyond a reasonable doubt, that the sexual assault occurred. The position of the defence is that FB is a reliable and credible witness and that I should accept his evidence and acquit him. In addition, given FB’s explanation about why he asked JE for oral sex, there is a reasonable doubt that he invited her to touch him for a sexual purpose.

[91] The position of the defence is that JE was motivated to lie to the police when she gave her statement. She was fearful of the repercussions she faced from her parents for driving to Kitchener with an older man in the middle of the night. Therefore, to earn their sympathy, she concocted a story that she had been sexually assaulted to possibly avoid or minimize any further discipline from her parents.

Analysis and Findings

[92] The Crown must prove, beyond a reasonable doubt that the accused sexually assaulted the complainant. The determination of this issue turns, to a significant extent, on my credibility findings in respect to both FB and JE.

[93] The credibility of a witness is determined by addressing the credibility and reliability of a witness. Trial judges rely on a number of factors to assess the weight to be given to a witness’ evidence. Some of those factors are as follows:

1. The demeanour of the witness, while important, is not the only factor;

2. Does the evidence make sense;

3. Does the evidence have an internal consistency and logical flow;

4. Are there any prior inconsistencies and if there are, how significant are they and are they adequately explained;

5. Is there independent confirming or contradicting evidence;

6. Is there an interest in the outcome or motivation to lie?[^1]

[94] None of these factors are alone determinative. I have considered each of these factors in assessing the credibility and reliability of the witnesses.

FB’s Evidence

[95] FB presented as an intelligent and well-spoken man. He did not appear to be defensive or evasive when questioned. He have a very detailed recollection of all of his encounters with JE, and of the text messages they exchanged. In many respects, FB’s and JE’s evidence was consistent with respect to a number of details of their text exchanges and the events leading to the two occasions they met.

[96] Having said that, as will be reviewed in these reasons, FB’s evidence also was illogical, and lacked internal consistency and plausibility. I will provide three significant examples.

Example No. 1: JE’s Age

[97] FB’s evidence was that when he downloaded Whisper, he knew it was a social media application where anonymous posting and communication was possible. Although his evidence was that the application said it was for those aged 17 and over, he admitted in cross-examination that he knew that there was no way to verify the age of people using the application. In fact, FB admits that he was even untruthful about his age on the application, saying he was 39 rather than his actual age of 43

[98] FB’s evidence was that when he first started communicating with JE, he thought she was 17. He also testified that he asked her age early on in their exchange, and she confirmed she was 17. He stated that when he found out that JE was 15, after he bought alcohol for her, he was scared and worried, as he had been in trouble with the police for talking to people who were underage. He described his fear using an analogy that he “pooped his pants”, which suggests that he was extremely concerned, knowing that the court order prohibited him from communicating with anyone under the age of 16.

[99] Knowing that he was under a prohibition order not to speak to anyone under the age of 16, it is illogical that FB would download an application, where individuals can be anonymous, and start communicating with people based on a reliance that they will state their true age when he himself did not do that. I find that FB’s assertion that he believed JE was 17 at the time they started communicating to be incredible. FB knew that he was under a prohibition order. He also knew that there was no way to verify age on Whisper and was untruthful about his own age. Given these facts, it is illogical that FB would believe that JE was 17, and his explanation lacks credibility.

Example No. 2: Purchasing Alcohol

[100] FB’s evidence was that he agreed to buy alcohol for JE. His evidence was that at the time, he believed she was 17, as she told him that on Whisper. He explained that he bought alcohol for a minor as he knew what it was like to be 17 and wanting to have someone buy you alcohol. At this point, he had seen a photograph of JE. His evidence was that she looked like she could be 17. His evidence was that there was some shadow on part of her face, but he did not think he needed a better photograph to see if she was actually 17. Relying on what JE told him about her age, he agreed to buy alcohol for an underage teenager, whom he had never met. While he acknowledge in cross-examination that this was a “stupid thing to do”, he also agreed that he knew it was illegal to give alcohol to a minor and did not take further steps, after seeing her picture, to ascertain her age.

[101] I find it highly incredulous that FB’s sole intention in providing JE with alcohol was because he was sympathetic and knew what it was like to be that age and to want alcohol. FB had never met JE. FB, in his own evidence, acknowledged that there was a possibility that JE was not 17, given that it was possible to lie about your age on Whisper. FB also acknowledged that the picture he had of JE had a shadow on part of her face. Given FB’s probation order, and his assertion that he was concerned about any trouble with the police, it is highly suspect that he would risk jeopardizing an arrest by the police because he was sympathetic to JE’s situation. I find that FB had an ulterior motive in providing JE with alcohol, and that his explanation for doing so is not credible.

Example No. 3: Driving JE to Kitchener

[102] FB’s evidence was that after learning JE was 15, he did not block her from his phone but just deleted her phone number. He also deleted their text exchanges. Approximately 2.5 to 3 weeks later, JE texted FB. FB knew JE was 15 and had his phone number. Instead of ignoring or deleting her message, which would have been consistent with his testimony that he “could not talk to her” and he did “not need that again”, he answered her message, knowing he was prohibited from doing so by way of a court order. His reasoning for answering her message is illogical and detracts from his credibility.

[103] FB’s explanation as to why he engaged in a series of text message exchanges on October 15, 2016 with JE that lasted 25 to 30 minutes was that JE told him she needed help. On cross-examination, he acknowledged that he could get in trouble for communicating with JE but did so anyways. Again, his actions in communicating with JE, who he knew was 15, is directly contradictory to his testimony that he was scared about getting caught and did not want to get in trouble with the police.

[104] FB’s evidence was that he wanted JE to stop messaging him on October 15, 2016, so he thought that the best way to do so was to ask her for oral sex, as he did not want to drive her to Kitchener as she was requesting. According to FB, he recalled an earlier discussion with JE when he offered her advice about giving her boyfriend a blow job, and she had told him she did not like doing it and that she would not talk to him if he asked her for one. And so, rather than simply turn off his phone or block her calls, FB asked JE for oral sex through text message. He testified that he did not actually want oral sex from her, but just wanted to stop her from messaging him. I reject FB’s evidence that when he suggested oral sex, his intention was to stop JE from messaging him. That evidence is illogical at best and absurd at worst.

[105] According to FB, JE continued to message him after he suggested she perform oral sex on him. Again, instead of ignoring her, which would have been consistent with his stated intention of not wanting to get in trouble with the authorities and making “her go away”, he again answered her texts and engaged in a series of exchange of messages with JE. FB’s evidence was that he was very concerned with JE’s friend, whom he had never met, as JE told FB her friend was suicidal. He testified that he was worried that the police question him for not helping JE’s friend. He felt sympathy for JE. Therefore, FB decided that the best way to handle this situation was to drive JE to Kitchener, rather than calling the authorities to report of the potential crisis situation in Kitchener.

[106] I reject FB’s evidence that he drove JE to Kitchener as he was worried about her friend and felt sorry for her. It is illogical that a 41 year old man would agree to drive a 15 year old girl to Kitchener, approximately 100 km away, at midnight, so she could see her ex-boyfriend who was in crisis. It is illogical that FB would risk violating his prohibition order just to help JE, someone he met on social media only approximately 6 weeks earlier, out of concern for her friend that he had never met.

[107] Two days after returning from Kitchener, FB admitted that he texted JE to see if she was in trouble and offered to give her a “ride out there” again. There is no dispute that FB knew JE was 15 at this time. There was no evidence of a crisis with a friend that he had to help with, yet at that point he offered to drive JE again. His explanation is that he offered to drive her again as he was hoping she would pay him. Again, this explanation is illogical and lacks in any common sense.

[108] FB admitted during cross-examination that he had been previously convicted of luring a child under the age of 16 over the internet. That evidence is a factor to be considered in assessing FB’s credibility. It is not evidence that FB committed the offence for which he has been charged involving JE. Furthermore, it is not evidence that FB is the sort of person who would commit the offence for which he has been charged, or is a person of bad character and thus likely to have committed the offence for which he is charged.

[109] Having considered all of his evidence, I am left to conclude that FB’s evidence is not credible. I reject his evidence on his awareness of JE’s age when they first met on Whisper and for why he bought her alcohol. I reject his evidence about why he asked JE for oral sex and why he agreed to drive JE to Kitchener. His explanations for these incidents are illogical and implausible. FB denied any of the conduct which formed the basis of counts 1-3 before the court. Based on my finding that FB’s evidence is not credible, on the critical issues that I need to determine, I cannot accept FB’s evidence.

JE’s Evidence

[110] I will now turn to JE’s evidence. She testified in a forthright manner. She was petite in statute and appeared to be her stated age of 16. For the reasons to be set out in this decision, I find the evidence of JE was credible and reliable. She appeared to be honestly trying to remember and testify about what happened to the best of her ability. She did not appear to exaggerate her evidence. While JE appeared to have difficulty remembering some details of various text messages with FB, that inability seemed to be genuine. Furthermore, she admitted facts that were potentially damaging to her credibility. For example, she admitted that she told FB she was in the hospital as she tried to kill herself so that he would feel sorry for her and agree to drive her to Kitchener. She admitted that she told him that she had gonorrhea. While she could not recall in detail the dates or contents of various text exchanges, I do not find that to relate to any issue of credibility or reliability, but more of a reflection of a young teenage girl who no doubt carries on numerous conversations with many friends using various social media and messaging applications every day.

[111] Furthermore, her answers to questions surrounding the circumstances of the alleged assault were not vague or unresponsive. Much of her evidence regarding the events leading up to the alleged assault were consistent with FB’s evidence. As will be reviewed in these reasons, she admitted a number of facts which were consistent with FB’s evidence regarding their interactions prior to the alleged assault.

[112] On cross-examination, there were areas where she was questioned about inconsistencies in her evidence. I have carefully reviewed all of the evidence and the inconsistencies. For the most part, theses inconsistencies were in connection with details that were inconsequential and of little significance.

[113] JE was cross-examined about the inconsistencies regarding how she disposed of the alcohol FB bought her. Her evidence was that she brought it home and then back to school the next day where she threw it out in the library. During the preliminary hearing, her evidence was that she threw out the alcohol that same day in the washroom in the public library connected to her school. In her statement to the police, her evidence was that she threw it out at home.

[114] I accept that there was inconsistency about where and when JE threw out the alcohol. As she had posted messages that she wanted alcohol as she was sad and wanted to forget, it is difficult to accept her evidence that she did not drink it but rather threw it out. While this is a troubling part of her evidence, in and of itself, that does not raise a reasonable doubt of the guilt of FB.

[115] JE’s evidence regarding her request that FB purchase her alcohol is consistent with FB’s evidence. It is both JE’s and FB’s evidence that he agreed to buy alcohol for her, knowing she was underage. Both JE and FB testified that JE told him what to buy and proposed the arrangements about where and when to meet so that he could deliver it to her. How she disposed of the alcohol or whether she drank it is peripheral detail.

[116] JE was also cross-examined about why she asked FB to buy her alcohol. Her evidence in chief was that she wanted to see if FB would buy her alcohol and that she was upset about a break-up with her boyfriend. In her statement to the police, she only said that that she wanted to see if FB would buy it for her. That inconsistency is insignificant. Furthermore, her evidence at trial is consistent with her mother’s and FB’s evidence that JE was lonely and upset about moving to Mississauga.

[117] In her statement to the police and when being questioned in chief, JE’s evidence was that she had sent FB a photograph (selfie) of herself that she took in her bedroom. In cross, however, her evidence was that she could not recall sending a photograph of herself.

[118] This inconsistency does not make JE’s evidence less credible or reliable. There would be no reason for JE to change her evidence during the trial for any deliberate or misleading purpose with respect to whether or not she send FB a picture of herself. This inconsistency in her evidence at trial appeared to be a matter of confusion and not any attempt to deliberately mislead the court.

[119] Many of the facts that JE admitted surrounding the events of October 15-16 are consistent with FB’s evidence as follows:

• JE texted FB on October 15, 2016 and asked for a drive to Kitchener

• FB requested oral sex from JE in a text message

• FB declined to drive JE to Kitchener as he was planning to spend time with his son

• JE persisted in texting FB to convince him to drive her to Kitchener

• JE told FB that her former boyfriend was suicidal

• JE told FB that she had been in the hospital as she tried to kill herself

• JE told FB that she and her boyfriend had gonorrhea

• FB agreed to drive her to Kitchener

• JE was texting while he drove

• FB stopped to get gas at an On Route near Cambridge and JE stayed in the car and continued to text

• FB was going to wait for only 30 minutes in Kitchener and would then drive JE back to Mississauga

• JE decided to stay in Kitchener

[120] JE admitted these facts during cross-examination, some of which were potentially damaging to her character. Likewise, there were some other more innocuous details with which JE did not agree. For example, she did not agree that FB turned on the radio. She did not agree that FB asked her how old her ex-boyfriend was. She did not agree that FB told her she owed him $10 for gas and for payment of the alcohol he bought her.

[121] JE’s admission of some details and denial of others supports and does not detract from her credibility, particularly when the admissions are consistent with FB’s evidence and are admissions that defence counsel relies upon to argue that JE was calculating and manipulative and is therefore not a credible or reliable witness. Some of those details that she admitted were of no benefit to her. Other details, such as whether the radio was on, were quite innocuous. Had JE’s goal been to be misleading, she would not have admitted a number of facts that made her evidence less likely to believe.

[122] The existence or absence of a motive by the complainant to fabricate is a factor I can consider. (R. v. Hughes, 2017 ONCA 814, at para. 8). Before JE arrived at the police station, she admitted on cross-examination that she had told her parents that it was a 20 year old man who drove her to Kitchener. JE knew her parents were angry. She had been disciplined for leaving her home the night before. Her phone had been taken away. JE’s evidence was that she was angry with her parents when they arrived at the police station.

[123] I do not accept that JE had a motivation to lie to the police about what occurred in FB’s car. JE did not know she was being driven to the police station after school until her parents picked her up at school. JE had not told her parents what transpired in the car. This evidence is consistent with ML’s evidence that she did not know what occurred until the police officer informed her, after JE gave her statement to the police. JE testified that she was angry with her parents when they arrived at the police station. She was also worried about what they would find on her phone. It was JE’s evidence that she did not want FB to get in trouble.

[124] I do not accept that JE lied about the assault in order to avoid any further discipline from her parents. The statement JE gave to the police about the length of time she had been in contact with FB, that she had asked him to buy her alcohol, and that she had asked him to drive her to Kitchener, could have resulted in stricter punishment from her parents. According to JE, her parents were overly-protective of her and they watched her too much. What she told the police likely heightened her parents concern and protectiveness. I do accept that JE had any motive to lie to the police about what transpired in the car with FB.

[125] There was an inconsistency with respect to the note JE left before she left Mississauga. There is consistency in the evidence of JE and ML that a note was left, but an inconsistency as to whether it was left for ML or her older daughter. I find that nothing turns on that minor inconsistency.

[126] A note was prepared by JE on June 2, 2017 when she was preparing for the preliminary inquiry. That noted included details about making up the excuse that she had an STD when FB asked her for sex in the car and he said he would wear a condom. JE did not tell the police this in her statement. JE’s evidence was that her memory was refreshed in June 2017 when she watched the video of her police statement. It was also her evidence was that she was too embarrassed to tell the police officer certain things when she was interviewed on October 17, 2016.

[127] It is logically consistent that a 15 year old girl would be very uncomfortable and embarrassed speaking with a male police officer about an assault that happened the previous day. In addition, JE had not disclosed the details to her parents before she spoke with the investigating officer. She did not want to be at the police station. Given the unexpectedness of the interview, which was arranged by her parents without her knowledge or agreement, and the recent trauma of the past 24 hours, it is logically consistent that JE would not have provided the officer with all of the details of circumstances surrounding the assault. I draw no adverse inference from the fact that JE did not disclose these facts to the police at the time of her police statement.

[128] In addition, although there is a difference in JE and FB’s evidence about when JE told FB that she had gonorrhea, the information in the note is consistent with FB’s evidence that JE told him that she had gonorrhea, which she described in the note as an STD.

[129] JE admitted that FB pulled into an On Route gas station near Cambridge to get gas on the way to Kitchener. She did not get out of the car when he got gas. Her evidence was she was scared that she could be in more danger and he might chase her.

[130] JE was alone in a car with an older man after midnight. She was rushing to see her ex-boyfriend who she believed was suicidal. She was focused on getting to him. Her failure to leave the car or tell her ex-boyfriend or her parents about the alleged sexual assault does not detract from her credibility. Rather, her behaviour was consistent with how a scared and vulnerable teenager would respond.

[131] Myths and stereotypes about how someone should behave following a sexual assault have, at times, tainted sexual assault jurisprudence. The court must not draw an adverse inference regarding a complainant’s credibility based on assumptions about how people react to acts of sexual abuse. (R. v. D.(D.), 2000 SCC 43, [2000] S.C.R. 275, at para. 63.)

[132] During cross-examination, JE was asked whether she told her ex-boyfriend, his parents, or her parents or friends about the alleged assault. She said no, but said she texted a friend from the car that FB was touching her thigh. This was the first time she gave this evidence. She was not asked that question either by the police officer who took her statement or at the preliminary inquiry. This evidence, given for the first time during her cross-examination, does not detract from JE’s credibility or reliability. She was not being inconsistent or attempting to either mislead or fabricate evidence. Rather, she was never asked the question. When she was asked, for the first time on cross-examination about with whom she discussed the alleged assault, she answered.

[133] Defence counsel argued that it is implausible and defies common sense that FB could steer his car with one hand, while driving at 120km/hr, and reach over with his other hand to loosen JE’s seatbelt and her sweatpants and put his hand down her pants to touch and penetrate her vagina with his fingers.

[134] I do not agree that FB could not have fondled and touched JE as she described as he drove on Highway 401. The uncontested evidence is that FB was driving a Ford Fusion, which is an average size vehicle. JE was wearing sweatpants that had a draw string waist and a crop top. Given these factors, I reject that it would not have been possible for FB to assault JE as she described.

[135] There is no dispute that only one text message was filed as evidence during this trial. ML’s evidence was that she had JE’s phone for 3 months and could not recall if she saw any other message from FB. Her evidence was that she did not delete anything from JE’s phone. JE’s evidence was that when she got her phone back after 3 months, she did not see any of her old messages and her applications (apps) and messages had been deleted. It was JE’s evidence that her phone deletes messages after 30 days.

[136] Although no evidence was led about how cell phones operate, I have no reason to doubt JE’s evidence about the storage of messages on her phone.

[137] Defence counsel suggests that an adverse inference be drawn that no other text messages were filed as evidence with the court. JE and FB agree that there were a number of text messages exchanged between them between early September and October 16, 2016. While I agree that additional text messages could have been of assistance, no adverse inference can be drawn, as those text messages could have corroborated either FB or JE’s evidence.

[138] I accept ML’s evidence that she did not realize the significance of any prior text messages from FB. She was in shock and very upset when she found out what happened to her daughter. She was very emotional when she testified at trial about how she felt when she was informed that her daughter had been assaulted. It was her evidence that she felt like a failed mother for not protecting her daughter. There is no evidence of any deliberate attempt by ML to conceal evidence by not providing the police with copies of any other text messages exchanged between JE and FB.

Summary

[139] Having considered all of the evidence and my conclusions regarding credibility and reliability of that evidence, I do not believe FB’s evidence nor am I left in a reasonable doubt. While that disbelief of his evidence is not positive proof of his guilt, after reviewing and assessing the remaining evidence as a whole, including the inconsistences or contradictions with JE’s evidence, I am satisfied beyond a reasonable doubt that FB sexually assaulted JE.

[140] While there are inconsistencies in JE’s evidence, they are immaterial. She did not appear to embellish or exaggerate her evidence. She was a 15 year old girl who was unhappy living in Mississauga. She missed her friends in Kitchener. She was in a vulnerable state. FB knew of her unhappiness, as his evidence was that most of their conversations, before he bought her alcohol, were about her difficulties living in Mississauga. I find that FB capitalized on her vulnerability by first offering her emotional support then buying her alcohol and agreeing to drive her to Kitchener when he knew she was only 15 years of age and was dealing with a friend in crisis.

[141] Having considered all of the evidence, I am left to conclude that FB’s evidence is not credible. I reject his evidence that he asked for oral sex from JE a as a means to stop her from texting him. That evidence is illogical and incredible. I reject his evidence that the only reason he drove JE to Kitchener was because of his concern for her and her friend.

[142] Having carefully considered the evidence of JE as a whole, I find her to be a credible and reliable witness. Even when I consider the inconsistencies in her evidence cumulatively, I find that JE was credible and reliable on the most important pieces of evidence which make out the elements of the offences before the Court.

[143] With respect to the first count, I find that FB intentionally applied force in a sexual nature on JE, that she did not consent to the force, and that FB knew she did not consent, contrary to section 271 of the Criminal Code.

[144] With respect to the second count, I find that FB knew JE was under 16 years of age and that he touched her on October 16, 2016, and that the touching was for a sexual purpose, contrary to s. 151 of the Criminal Code.

[145] With respect to the third count, I find that FB knew that JE was under 16 years of age and that he invited JE to touch his body and that the touching FB invited was for a sexual purpose, contrary to section 152 of the Criminal Code.

[146] With respect to the fourth count, as stated earlier, I find that FB was bound by a prohibition order and failed to comply with that order by communicating with JE by way of text messages, knowing she was under the age of 16 years.

[147] A conviction on all four counts is entered.

Shaw J.

Released: May 28, 2018

COURT FILE NO.: 506/17

DATE: 2018 05 28

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

FB

Reasons for judgment

Shaw J.

Released: May 28, 2018

[^1]: R. v. S 2017 CarswellOnt 12615; 2017 ONSC 4897; 139 W.C.B. (2d) 615