CITATION: R. v. V., 2018 ONSC 4236 COURT FILE NO.: CR-16-61 DATE: 2018/08/01
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Marney Mazurski, for the Crown Crown
- and -
J. A. V. Graham Clark, for the Accused Accused
HEARD: May 28 - 31, June 1, 14, 2018
Publication Restriction Notice
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcast or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Ellies J.
Reasons for Decision
Background
[1] J. A. V. ("the accused") is charged with seven sexual offences allegedly involving three complainants, all of whom were under the age of 16 at the time the offences are said to have occurred.
[2] The majority of the offences are alleged to have taken place during the summer of 2012. In that summer, the accused stayed as a tenant in a recreational vehicle (the “RV”) that was parked at a home located on L[…] Drive, in the City of North Bay. The home was being rented by S. B. and S. L., a couple with whom the accused had gone to high school.
[3] The RV was also used for about a month that summer by C. D., Mr. B.'s brother. Mr. D. had also gone to school with the accused.
[4] Mr. D. is the father of one of the complainants, B. D. ("B."). Mr. D. had access to his children on Tuesday and Thursday evenings and during every second weekend. When he did, he and the children would sleep in the RV, usually with the accused.
[5] S. L. also had a sibling, S. H., who visited the L[…] Drive house regularly that summer. Ms. H. is the mother of another of the complainants, M. H. ("M."). Ms. H. had two other daughters; L., who is three years younger than M., and J., who is four years older. The accused had also gone to school with Ms. H. According to the accused, they had lost touch, but reconnected early in 2012. Ms. H. passed away in 2016.
[6] The atmosphere at the L[…] Drive house that summer was a festive one, to perhaps understate the evidence of some of the witnesses. When the brothers and sisters got together, they would drink and talk together under a canopy attached to the RV. On occasion, Ms. H. and her daughters would stay overnight at the L[…] Drive house. The evidence as to where they slept, either in the house or the RV, was conflicting. I will return to that evidence when I deal with the allegations involving B.
[7] At some point later in the summer of 2012, the accused left the RV at L[…] Drive and moved into an apartment being rented by Ms. H. on F[…] Street, also in North Bay. Ms. H. occupied the basement apartment with her daughters, M. and J. L., who had a different father, would stay at the apartment with them every second weekend.
[8] The third complainant, T. G., stayed at the F[…] Street apartment during the summer of 2012, while she was working in North Bay.
[9] The F[…] Street apartment had two bedrooms. The girls slept in one of them and Ms. H. slept in the other. The accused usually slept on a couch in the living room. However, on occasion, he would sleep in Ms. H.’s room, sometimes while Ms. H. was there. The accused denies that he and Ms. H. were romantically involved, but testified that they did have sexual contact, to which evidence I will return when I deal with the allegations involving M.
[10] It is not clear exactly how long the accused stayed at Ms. H.'s apartment before moving out.
[11] I turn now to the allegations involving each of the complainants and the evidence of the accused with respect to each.
B. D.’s Evidence
[12] All three of the complainants presented as intelligent, articulate witnesses.
[13] B. was born in October 2003. She came to know the accused because he frequently visited her father in the years before these offences are alleged to have occurred, when Mr. D. was living at another residence on L[…] Drive.
[14] B. testified that when she was nine years old she was kissed and sexually touched by the accused one night in the RV. She testified that at about 10:00 or 10:30 p.m., she and M. went to bed in the RV. B. testified that she was just falling asleep when she heard someone coming into the trailer. She said she turned over from the position in which she was falling asleep and saw the accused on top of M., who pushed him and told him to go away.
[15] B. said that the accused then came over to her bed. He kissed her lips, sticking his tongue in her mouth for what she said was a long period of time. She testified that she started to scream, but that the accused put a pillow over her head, at which point she just froze.
[16] B. testified that the accused then began to touch her legs. He put his hands up under her shorts and touched her vagina over top of her underwear. He also put his hand up her shirt.
[17] B. testified that the incident lasted about a half-hour, during which time the accused said nothing. It ended when B. heard the house door slam, as her father left the house to come to the RV. However, Mr. D. was called back into the house and stayed there for about five minutes before returning to the RV. According to B., after the door first slammed, the accused stopped what he was doing, went to the door of the RV and looked back at her. He told her not to say anything and then left the RV.
[18] B. testified about another incident of sexual touching that occurred the same weekend. During examination-in-chief, she said she was not sure whether the incident happened the day before or the day after the incident in the RV. In cross-examination, she stated that she was pretty sure that it happened the day before.
[19] During this second incident, B. and the accused were with Ms. L., Mr. B., Mr. D., M. and others in what I assume was the area outside of the RV where the witnesses indicate that the group gathered to drink and to socialize.
[20] B. said that she was sitting on the accused’s lap at the time. She said that, at one point, the accused was “grabbing her butt”. According to B., the accused refused to let go until she told him she had to go to the washroom.
[21] B. testified that she did not see the accused again for several years after that weekend. She next saw him in a parking lot about two years later when she was with her mother. Her allegations came to the attention of the police at about the same time. B.’s father and her uncle were discussing a trip involving a camper trailer when B. said that she hoped the same thing would not happen in that trailer as happened in the RV. That prompted her father to make inquiries which I will mention again when I outline the evidence of M. and eventually lead to the charges now faced by the accused.
[22] The accused testified with respect to all of the allegations against him. With respect to B.’s allegations, he admitted that B. did sit on his lap while he was living at the RV, but denied that he ever touched B. in a sexual way, either while she was on his lap, or while she was in the RV.
[23] The accused testified that he remembered one particular incident, of which B. had later reminded him, during which he was playing a game of “Peekaboo”. B. was at her father’s home on L[…] Drive at the time. The accused testified that he was moving a pillow back and forth in front of his face and sticking out his tongue whenever he pulled the pillow back. Unknown to him, B. got too close while he had the pillow in front of his face and when he pulled it back and stuck out his tongue, it went momentarily into B.’s mouth. He said that it was an accident, after which one of them said, “Oh, gross” and they both laughed.
T. G.’s Evidence
[24] T. turned 15 years old early in the summer of 2012. She is not related in any way to either of the other two complainants, or to the accused. However, T.’s brother was a friend of J.’s and, in the summer of 2012, T. came to stay at the F[…] Street apartment by virtue of that connection. T. had obtained a job in North Bay, but she was living with her grandmother, J. G., in Callander at the time. Because travel between Callander and North Bay posed a problem, T.’s grandmother made arrangements for T. to stay at Ms. H.’s apartment.
[25] T. testified that she was sexually touched by the accused one night as she was sleeping on the couch at the F[…] Street apartment. She said that, earlier that day, she had found a stray kitten and called Ms. H. to ask if she could bring it home. Ms. H. told her she could and came to get T. and the kitten. On the way home, Ms. H. told T. that she would call the accused to come to see the kitten.
[26] When they got home, T. went to her bedroom. While she was busy texting, the accused invited her to come and watch a movie with him and K., a friend of J.’s, which T. later did.
[27] There were two couches in the living room area of the apartment. K. sat on one couch and T. and the accused sat on opposite ends of the other. T. was wearing a bra, panties, pyjama bottoms, and a t-shirt.
[28] T. said that she and K. fell asleep while watching the movie. T. was lying on her right side. She testified that she woke up to find her top up and one of the accused’s arms under her body. With the hand of that arm, the accused was rubbing the area at the bottom of her breasts, under her t-shirt, but over her bra. With the other hand, he was rubbing the area from her inner thigh to the top of her vagina, under her pyjamas, but over her panties.
[29] The accused did not say anything while he was touching T. The rubbing lasted a few seconds before T. rolled off the couch to show that she was awake. When she did, the accused reached towards her waist to pick her up, saying “It’s okay, just come back up here.” T. told him that she had to go to the washroom and she did. Once there, she locked herself inside and sat on the floor for perhaps a half-hour before going back out. When she returned to the living room, she took up a position on the other couch, the one on which K. was still asleep. T. said that the accused asked her something, but she could not recall what it was. Eventually, she fell asleep again.
[30] When T. woke up in the morning, K. and J. were gone and Ms. H. was getting ready to go somewhere. The accused was in Ms. H.’s bed. T. dressed and left, so as not to be alone with him. She went to the home of her boyfriend, S., who lived not far away. S. called J. over, who was on her way to the waterfront with K. T. testified that she told J. “some” of what had happened at that time, but did not specify exactly what she had said.
[31] T. testified that, after speaking with S. and J., she returned to the apartment and called her grandmother. However, instead of telling her grandmother about the sexual assault, T. said that she told her that Ms. H. was angry with her for not properly caring for the kitten. She testified that Ms. H. had earlier threatened to put the cat in a microwave oven. Her grandmother told her to pack to come home, but when Ms. H. found out about the conversation, she made T. call her grandmother back and told T. what to say to her. After that call, however, T. called her grandmother again and explained what had just happened. Her grandmother sent a cab from Callander to pick T. up and bring her home.
[32] T. had about one week of work left at the time. She finished the job by commuting to and from Callander each day.
[33] According to T., she did not tell her grandmother what the accused had done to her until perhaps a few months later, when she saw him at the Dollar Store. T. did not know how the matter came to the attention of the police, who later contacted her.
[34] The accused denied ever touching T. He also denied ever watching a movie with her. He testified that he remembered a lot of “drama” surrounding the kitten, but did not witness any of the discussions about it between T. and Ms. H. He said that he also remembered T. moving out and had been told that it was because of the cat.
M. H.’s Evidence
[35] M. turned 11 years old in the summer of 2012. Her father and her mother separated at some point before the offences are alleged to have taken place. She lived with her mother while growing up, but she and her mother were not getting along in the summer of 2012. As a consequence, M. spent a lot of time with her aunt at the L[…] Drive home that summer. M. testified that, when she slept over at her aunt’s, she would usually stay in her cousin B.’s bedroom.
[36] M. testified about four incidents of sexual touching or attempted sexual touching by the accused. The first two or three occurred in the summer of 2012.
[37] The first incident occurred at the L[…] Drive home. On that occasion, M. was sleeping alone in B.’s bedroom, facing the wall. She awoke to discover the accused behind her. Her shirt was lifted up and the accused was rubbing the area from the top of her pants to just under her breasts. M. said that she froze. She did not know what to do. Neither she nor the accused said anything while she was being touched. At some point, she got up and went to the bathroom where she locked herself in. There was no evidence as to how long she stayed there. Eventually, she left the bathroom to return to the bedroom and got back into bed. The accused was still in the bed, but M. positioned herself as far away from him as possible. Neither said anything to the other and she eventually fell back asleep. The accused was gone when she awoke in the morning.
[38] The remaining incidents occurred at the F[…] Street apartment. The second one occurred later that summer. On that occasion, M. was sitting on a lounge type of chair at about 1:00 or 2:00 p.m. in the afternoon, watching television. Her mother and sister were outside. The accused came into the room and sat down beside M. He put his arm around her. He tried to put his hand down her pants, telling her that no one would find out. As I understand M.’s evidence, she got up and left the room before the accused succeeded. She went outside to join her sister and her mother.
[39] The third incident involved the accused getting M. to touch him. M. was uncertain as to whether this incident happened in the same summer as the first two incidents or during the following summer. She testified that her mother had gone out and left the accused to watch over her. She fell asleep while watching “The Cat in The Hat”, although she did not say where she was when she was watching it or where the accused was while she was doing so.
[40] When M. woke up, the accused was lying next to her. He had his penis out of his pants and was using M.’s hand to stroke it up and down. He said nothing, nor did she. She described the accused as breathing hard during the incident. She testified that she just tried to fall back asleep, which is, I assume, how the incident came to an end.
[41] The final incident happened the summer after the first two. M. testified that she was sleeping on a pull-out bed across from her sister, J., at the time. She woke up to find the accused behind her, touching her mid-section. This time, however, M. got up and went into her mother’s bedroom to tell her about it. M. testified that her mother then told the accused to leave the apartment, which he did.
[42] M.’s allegations came to the attention of the police after B.’s father contacted her. He told her that B. had been sexually assaulted by the accused and asked M. if anything had happened to her. She answered in the affirmative.
[43] Unlike the allegations made by the other two complainants, the accused did not deny having any sexual contact whatsoever with M. Instead, he testified about an incident in which he awoke to find M. touching him.
[44] The accused testified that he was a very heavy sleeper, particularly after consuming drugs. He said that Ms. H. would perform sex acts on him while he was sleeping, including intercourse, and would joke openly about the fact that he would not wake up while they were being performed. He said this happened on a number of occasions.
[45] The accused testified that on one occasion while he was sleeping in a chair, he woke up to find that M. had taken his penis out of his pants and was playing with it. He moved her hand away and asked her what she was doing. He told her that this was improper and that if she did not speak to her mother about it, he would do so. M. refused to speak to her mother and went into her bedroom, slamming the door. The accused and M. never spoke about the incident again. He moved out of Ms. H.’s apartment a few days later.
[46] According to the accused, less than a year after moving out, he was walking home from a bar one night when Ms. H. sent him a text message. As a result of that message, he headed over to Ms. H.’s apartment. When he got there, he spoke to Ms. H. for a while and then went to say hello to J. and M.
[47] The accused testified that he said a quick hello first to J. and then to M. He told M. he was going back out to talk to her mother, at which point M. got up and went to the washroom. When the accused sat back down in what I gather was the living room, Ms. H. came in and told him that M. said that he had touched her. The accused left and never went back to the apartment.
The Similar Fact Application
[48] At the conclusion of its case, the Crown applied to have the evidence called in support of each the alleged offences admitted as similar fact evidence in support of the other alleged offences. For reasons which I delivered orally, I ruled that the evidence of all but the second incident alleged by M. (the "lounge chair incident") met the threshold test for admission as similar fact evidence. I concluded that the other incidents were all similar enough to raise their probative value sufficiently beyond their potentially prejudicial effect with respect to two issues: (1) credibility, in the sense that the evidence on one count made it unlikely that the complainant on the other count was either lying or mistaken about what happened to her (see R. v. Thomas (2004) , 190 C.C.C. (3d) 31 (Ont. C.A.), at para. 54), and (2) identity of the accused as the perpetrator in the count involving T. In particular:
(a) All of the incidents occurred in a period beginning in the summer of 2012 and ending in the summer of 2013. (b) All of the incidents involved young girls. (c) With the exception of the lounge chair incident and the incident during which B. said the accused grabbed her bum (the "lap incident"), the incidents all took place while the girls were sleeping, or supposed to be sleeping. (d) In each case, the accused said nothing while he was touching the girls.
[49] Thus, in the analysis that follows, I have considered the evidence that I accept with respect to each count as similar fact evidence with respect to the other counts, with the exception of the lounge chair incident.
Analysis
[50] Although the Crown called the complainants to testify in the order in which I have set out their evidence, for the purpose of my analysis, it is helpful to deal with them in the opposite order.
The Allegations Involving M.
[51] A judge is free to accept all, some, or none of a witness’s evidence. For the following reasons, I accept some of M.’s evidence about the events to which she testified and reject much of the evidence of the accused about them.
[52] I will begin with the evidence about the first incident and follow with the evidence about the last incident.
[53] M.’s evidence about the first incident of touching, the one that happened in B.’s room in the L[…] Drive house, is confirmed in certain respects by the evidence of Ms. L. Ms. L. testified that her sister, Ms. H., would sometimes stay over at the L[…] Drive house. When she did, L. and M. would usually sleep in the house and Ms. H. would sleep in the RV. There were only two bedrooms in the house. Ms. L. and Mr. B. would occupy one and that would leave B.’s room for the girls.
[54] Ms. L.’s evidence also supported M.’s testimony that there was a party atmosphere at the L[…] Drive house. Ms. L. testified that it was like that “to a point”, meaning every second weekend.
[55] The defence submits that there is one important contradiction between M.’s evidence and that of Ms. L. However, I do not believe that the contradiction is as significant as the defence contends it is.
[56] M. testified that she tried to tell her aunt about being touched by the accused while she was sleeping at the house on L[…] Drive after it happened. During cross-examination, Ms. L. said that M. never came directly to her to say anything about being touched. However, she also said that M. "mentioned maybe something like he's (the accused) rubbing my back" and that M. went to her mother to ask why the accused was being so nice. I interpret this to mean that M. did say something to her aunt and also said something to her mother in her aunt's presence. Ms. L. said that, because nothing had been said directly to her, she let her sister deal with it. Without being asked, she added that she would have dealt with it if it had been said to her. I got the impression that Ms. L. felt badly that no one had taken M. seriously when she first complained, which coloured her recollection of the evidence.
[57] I view Ms. L.’s evidence as confirming the fact that M. did complain that summer about the fact that she was being touched inappropriately by the accused, a man whom she had more or less just met. This leads me to the other main argument put forth by the defence with respect to this incident.
[58] The defence also challenges the evidence identifying the accused as the person who touched M. at the L[…] Drive house. M. testified in cross-examination that she did not see the accused’s face on the night she was first touched by him. She said that she knows it was him because of his distinct smell. The defence argues that this evidence is problematic because M. had just met the accused at that point in time and, therefore, could not know his smell that well. I see no problem with this evidence of identity.
[59] If, as M. said, the accused has a particular smell, then that smell can act as a distinct feature of the accused. Even if she was not yet familiar enough with the accused to associate the smell with the accused at the time of the first incident, the evidence is clear that she became more familiar with him later. She certainly had an opportunity to get to know his smell while he was living with her mother on F[…] Street. Her identification evidence is not weakened by the fact that she may have come to associate that distinct smell with the accused after the incident occurred, as opposed to before.
[60] I turn now to the final incident because the evidence about that incident is one of the reasons why I accept M.'s evidence about this one.
[61] The forth incident was similar to the first incident, a fact upon which I have relied in coming to a decision. As in the first incident, the accused touched M. while she was asleep. As in the first incident, he placed himself behind her and touched her mid-section. And, as in the first incident, M. complained about being touched, this time immediately. The accused admits this.
[62] I do not accept the accused`s evidence about what happened in the bedroom on this occasion. I find it improbable that he would go into M.'s bedroom in the early hours of the morning to say hello to a girl that most people would assume was asleep. And why would he go to say hello to someone who, according to his evidence, had sexually assaulted him just before he moved out of the apartment?
[63] For these reasons, I am satisfied beyond a reasonable doubt that the accused committed the forth assault. Because it is so similar to the first one, I accept M.'s evidence about the first incident and I reject the evidence of the accused about it. However, I come to a different conclusion about the incidents in between.
[64] The second incident is the lounge chair incident. I have trouble accepting M.'s evidence about this incident for several reasons.
[65] First, the circumstances surrounding this incident are very dissimilar to those in the first and forth incidents involving M., the incident involving T., and the RV incident involving B. (the "sleep touching incidents"). In the lounge chair incident, M. was awake. Unlike the sleep touching incidents, the accused could not put himself in a position to touch M. without her knowing of his approach. Further, the incident is alleged to have happened in broad daylight, more or less in plain view. Whereas the risk of detection by another adult was low in the sleep touching incidents, it would have been very high in this one, given that M.'s mother and sister were just outside in the yard.
[66] Second, the part of M.'s body that she alleges the accused tried to touch is different than in the other incidents. Rather than touch the mid-section, M. alleges that the accused went straight for her vagina.
[67] Lastly, given that M. said something to an adult about being touched by the accused in the first and final incidents, I find it unlikely that she would not say something to her mother when she went outside after the accused's alleged attempt to touch her vagina in the second incident. M. said something about being touched after it happened the first time. On that occasion, according to Ms. L., M. seemed uncertain of the accused's intentions, asking why he was being so "friendly". If M. had any doubts about the accused's intentions after being touched the first time, she could not have had any in the circumstance in which she says the second incident occurred, when he tried to touch her vagina.
[68] I am not suggesting that everyone who is sexually assaulted should be expected to complain. We know that everyone reacts differently to being assaulted. However, having had the opportunity to observe her while she testified, M. does not strike me as a timid young lady. In fact, the evidence shows that she was quite assertive. In the summer of 2012, she testified that she spent long periods away from the F[…] Street apartment because she and her mother were not getting along. Not saying anything seems inconsistent with what I know of M.'s personality.
[69] For these reasons, I am left with a reasonable doubt about the accused's guilt with respect to the lounge chair incident.
[70] Finally, I turn to the third incident, the one in which, by all accounts, M.'s hand was stroking the accused's penis.
[71] The law requires me to acquit the accused if, having regard to all of the evidence, I believe him or if his evidence leaves me with a reasonable doubt. Even if the accused’s evidence does not leave me with a reasonable doubt about his guilt, he must be acquitted if I am left with a reasonable doubt by the rest of the evidence which I do accept. Finally, the accused must be acquitted if I am simply unable to determine what evidence I should accept and, therefore, who to believe. That is the situation I find myself in with respect to this incident.
[72] I do not accept the evidence of the accused about it. I find it improbable that he would not wake up while M. was opening his pants and pulling out his penis. He testified that he was a very sound sleeper after he took drugs, but he never said he took drugs before this particular incident.
[73] I also find his evidence about the incident to be inconsistent. He testified that he told M. that he was going to have a talk with her mother about it if M. did not, and yet, for no reason which he explained, he failed to do that. Instead, he moved out of the apartment not long afterwards. Moving out is more consistent with M.'s evidence than with his.
[74] However, I also have problems with M.'s evidence. First of all, I have difficulty accepting her evidence as to how the incident ended. M. testified that she "tried to fall back asleep", but I find it implausible that she could do that while being forced to masturbate the accused. Apart from simply falling asleep, there is no evidence as to how the incident ended.
[75] Overall, M.'s evidence about this incident lacked the quality of her evidence about the first and the forth incidents. For example, she could not remember what she did after this incident ended. That seems odd to me when I consider how much it must have shocked M. to wake up to find her hand on the accused's penis and when I compare M.'s evidence about this incident to her detailed evidence surrounding the first and last incidents.
[76] Thus, while it is clear that something happened involving M. touching the accused's penis, I am left with a reasonable doubt about exactly what it was.
The Allegations Involving T.
[77] I find myself in a similar situation with respect to the allegation involving T.
[78] While T. was as intelligent and articulate as the other young complainants, I found that she was less than forthright at times while undergoing what I thought was a non-confrontational cross-examination. For example, she testified in cross-examination that she “guessed” that the accused would sleep in Ms. H.’s room at times, while she testified during examination-in-chief that that is precisely where he was sleeping when she awoke the morning after he assaulted her. She also first testified in cross-examination that she did not know the people with whom Ms. H. would smoke marijuana, but later admitted that her boyfriend, S., was one of them.
[79] Other parts of T.’s evidence seemed exaggerated to me, such as her testimony that she looked for something with which to kill herself while she was locked in the bathroom, so that she would not have to go back out to the living room. That seems extreme, especially when one contrasts T.’s evidence about her reaction to that of M., who was touched in a similar way on two occasions, albeit at a younger age.
[80] This part of T.’s evidence also seemed to conflict with her admission that, after leaving the bathroom, she returned to the living room, instead of going to another room, which she admitted in cross-examination she could have done. In contrast, M. testified that she did not know where else to go after being touched and, therefore, returned to the bed.
[81] Other parts of T.’s evidence seem implausible to me. For example, how is it that the accused could position himself with one arm under her body without waking her up if merely touching her was enough to do so later?
[82] I also have trouble with T.’s evidence about the telephone discussion she had with her grandmother following the assault. As I understand T.’s evidence, that discussion took place the day after she brought the kitten home. I have difficulty understanding how Ms. H. could be so upset about T.’s failure to care for the kitten over such a short period of time such that she would threaten to cook the cat in a microwave while T. watched.
[83] T.’s evidence about the telephone conversation contradicts that of her grandmother, who testified that T. told her during the telephone discussion that she had been sexually assaulted. T.’s grandmother testified that T. did not seem to be upset about the kitten during the call.
[84] These things cause me to question the reliability and, to some extent, the credibility of T.’s evidence.
[85] However, I also question the credibility and reliability of the accused’s evidence about this allegation in light of certain strengths in T.'s evidence.
[86] First, J. confirmed T.’s evidence that she told her about being assaulted in a conversation she had with T. before T. left the apartment for good.
[87] Second, if T.’s grandmother’s evidence is accurate, it means that T. also complained to her more or less immediately after she had been sexually assaulted by the accused.
[88] Finally, T.’s allegations are quite similar to those of M., who testified about the accused sexually touching her mid-section from behind on two occasions while she was sleeping.
[89] Having regard to all of the evidence, I am left with a reasonable doubt about the allegations for the reasons that I have expressed. Given my conclusion, I do not need to deal with issue of identification that was raised during cross-examination of T., but not made the subject of final argument by the defence.
The Allegations Involving B.
[90] A significant amount of time was spent during the trial dealing with a potential alibi on the part of the accused with respect to B.’s allegations, none of which I found to be particularly helpful.
[91] B. testified that her father had access every second weekend from Friday to Sunday. If so, then the lap incident would have occurred on the Friday and the RV incident on the Saturday. B.’s father testified, however, that access was from Saturday to Monday, which would mean that the lap incident would have happened on a Saturday and the RV incident on a Sunday.
[92] The accused testified that he worked at a local bar every weekend in 2012 on Friday, Saturday, Sunday and Monday nights. On Friday and Saturday, he worked from 9:00 p.m. until 2:00 or 3:00 a.m. On Sunday and Monday, he worked from 6:30 p.m. until 2:00 or 2:30 a.m. The accused’s manager at the time was called as a witness by the defence, and more time was spent hearing an application by that person to ban publication of the person’s name, which I granted. The manager confirmed much of the accused’s evidence. The import of the evidence was that, provided that the accused never missed a shift, he could not have been in the RV on either a Saturday or a Sunday night around 11:00 p.m., as B. alleged.
[93] However, in order to have any real probative value, there has to be more certainty as to when the accused was working than there was in this case. The manager was unable to say with certainty that the accused never missed a shift on a weekend in 2012 and there are no employment records, as is often the case, to confirm the accused’s evidence that he never did.
[94] In any event, the obvious weaknesses in B.’s testimony make the alibi evidence unnecessary. These weaknesses make it impossible for me to accept B.’s evidence about the RV and the lap incidents. They include the following:
(1) B. testified that she “knows” that these events took place when she was nine years old. That would mean they would have occurred after mid-October 2012. However, Mr. B. and Ms. L. were no longer living in the L[…] Drive house at that time. Ms. L. testified that, although she could not remember the exact dates, she and Mr. B. stayed in the L[…] Drive house for exactly five months. She said that they moved in during the winter and moved out during the summer. Her evidence is supported by the Tenancy Agreement that was introduced as an exhibit, which shows that the house was rented starting on April 1, 2012. There is no evidence that the RV was available for anyone to sleep in after they left the L[…] Drive house at the beginning of September of that year. (2) Although B. gave two statements to the police, in neither statement did she ever allege that the accused told her not to tell anyone before he left the RV. This is a significant contradiction in light of B.’s evidence that she was so traumatized by what happened that whenever a guy goes to give her a hug, she thinks, “Don’t tell anyone, don’t tell anyone, don’t tell anyone”. (3) Equally importantly, in her first statement, B. told the police that the other young lady in the RV at the time of the incident allegedly taking place there was actually L., and not M. She changed her evidence when she gave the second statement. This is a significant discrepancy. It calls into question the reliability of all of her evidence. (4) Perhaps most importantly, B.'s evidence was contradicted by M., who testified that she does not believe she ever slept in the RV and never testified that she was assaulted by the accused there. (5) B.'s evidence is also contradicted by that of her father and by a statement she made to him. B. testified that the day after the RV incident, she told her father that she had been sexually assaulted. She testified that she told him exactly what happened to her and that she was not joking. However, her father testified that he only learned about the allegation in 2015. I find it highly unlikely that B.’s father would simply forget the fact that his daughter made such a serious allegation, if B. indeed had tried to tell him. (6) Mr. D. also testified that he took B. to the hospital a few months before she disclosed the alleged sexual touching and asked her specifically if anyone had touched her in her vagina area. I gather from B.’s cross-examination that she was taken to the hospital as a result of a rash in her vaginal area. Mr. D. testified that B. responded that she had not been touched in that area. (7) Finally with respect to the RV incident, B. testified that she first thought that what happened to her was actually a dream. She testified that she came to believe that it was not a dream after M. told her the next morning what had happened to her in the RV and as a result of the fact that she had a blanket over her mouth at the time that she woke up. As I mentioned, M. says she does not recall sleeping in the RV with B. Just as troubling, however, is that B. also said that when she found that the blanket was placed over her mouth in the same way it was during the dream, she came to believe that what had happened to her had really occurred. A blanket is highly unlikely to remain in one place over a sleeping body for an entire night. Finding it in a certain position in the morning is not a sound reason to turn a dream into reality. (8) With respect to the alleged lap incident, despite the fact that Mr. D., Ms. L. and M. were all called as witnesses by the Crown, not one of them confirmed that anything resembling such an incident took place in their presence, as B. alleged.
[95] Because of these weaknesses, in light of all of the evidence, including the similar fact evidence, I cannot be sure beyond a reasonable doubt that the accused is guilty of the offences allegedly involving B. D.
Conclusion
[96] For the reasons set out above, findings of guilty will be entered on counts 3 and 4 on the indictment, relating to M.
[97] The Crown conceded at trial that count 5, alleging sexual interference, had not been proven. A finding of not guilty will be entered on that count, and on counts 1, 2, 6 and 7.
[98] Two counts remain, counts 8 and 9, alleging breaches of s. 145 of the Criminal Code. On consent, those charges were to "follow along", to await the outcome of the trial on the other counts.
[99] I will require submissions as to whether a stay is required with respect to either count 3 or count 4 and with respect to the disposition of counts 8 and 9.
Ellies J.