CITATION: R. v. M.R.M., 2018 ONSC 4798
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
David Kirk, Counsel for the Crown
- and -
M.R.M.
Bruce Willson, Counsel for the Accused
Accused
HEARD: July 4, 5, 6, 9, 11, 12, 13, 16 and 17, 2018
GAREAU J.
REASONS FOR JUDGMENT
1The accused stands charged with six criminal offences set out in an Indictment dated May 17, 2017 as follows:
M.R.M. stands charged that he on or between the 1st day of September 2000 and the 29th day of June 2004, at the City of Sault Ste. Marie, in the said Region, did for a sexual purpose touch C.M., a person under the age of fourteen directly with a part of his body, contrary to section 151 of the Criminal Code of Canada, and
M.R.M. stands further charged that he on or between the 1st day of September 2000 and the 29th day of June 2004, at the City of Sault Ste. Marie, in the said Region, did for a sexual purpose invite C.M., a person under the age of fourteen years to touch directly the body of M.R.M., contrary to section 152 of the Criminal Code of Canada, and
M.R.M. stands further charged that he on or between the 1st day of September 2000 and the 29th day of June 2004, at the City of Sault Ste. Marie, in the said Region, being a male person, did commit a sexual assault on C.M., contrary to section 271 of the Criminal Code of Canada, and
M.R.M. stands further charged that he on or between the 30th day of June 2004 and the 29th day of June 2008, at the City of Sault Ste. Marie, in the said Region, being in a position of trust or authority towards C.M., a young person, did for a sexual purpose, touch directly the body of C.M., a young person, contrary to section 153(1)(a) of the Criminal Code of Canada, and
M.R.M. stands further charged that he on or between the 30th day of June 2004 and the 29th day of June 2008, at the City of Sault Ste. Marie, in the said Region, did commit a sexual assault on C.M., contrary to section 271 of the Criminal Code of Canada, and
M.R.M. stands further charged that he on or between the 30th day of June 2008 and the 30th day of September 2015, at the City of Sault Ste. Marie, in the said Region, did commit a sexual assault on C.M., contrary to section 271 of the Criminal Code of Canada.
2The accused has plead not guilty to all six offences. This matter proceeded to trial in July 2018.
BACKGROUND
3By way of brief factual background, the accused is the stepfather of the complainant, C.M. The complainant is estranged from her biological father. The complainant was born on June 30, 1990. The complainant was seven or eight years of age when the accused started dating her mother. The accused eventually moved in with her mother, the complainant, and her sister, B., when the complainant was in grade 6, meaning the complainant was 10 or 11 years of age. The complainant and the accused lived at the R[…] Street address until the complainant was entering grade 9, at which point the family moved to a residence on A[…] Road, Sault Ste. Marie, Ontario. The complainant lived at the residence, which the accused occupied, throughout her high school years and during the time she attended Lake Superior State University in Sault Sainte Marie, Michigan.
4The complainant finally moved out of the A[…] Road residence in late August 2015. She was 25 years old at the time and was employed as a teacher. The complainant made a video statement to the Sault Ste. Marie Police Services on April 2, 2016 regarding incidents which she alleges to have occurred between herself and her stepfather.
The Evidence of the Complainant, C.M.
5The only evidence the court received at the trial of this matter is the evidence of the complainant, C.M. The accused chose not to testify or call any evidence. The Crown suggests that the evidence of the complainant is credible, reliable and worthy of belief. The Crown suggests that the essential elements of the charges set out in the Indictment are established beyond a reasonable doubt by the evidence of the complainant. The defence urges the court to reject the evidence of the complainant, arguing the complainant suggests things that are incredulous and are incapable of belief. The theory of the defence is that it was the complainant who controlled things in the household, insisted that things go her own way and when they did not and she was resisted, she made up a story to get back at the complainant and members of her family. The defence suggests that the story spun by the complainant is a work of fiction concocted by the complainant to extract payback.
6The complainant testified that by the time they moved into the R[…] Street residence she had developed a good relationship with the accused. As she testified, “I really liked him”. The complainant described the accused as “super supportive” and someone who was “affectionate and kind” toward her. The complainant called the accused Dad. The complainant testified that she was told by the accused that she could come to him with any of her problems and, in fact, she preferred discussing difficult things with him rather than her mother. As the complainant put it, “He seemed to be willing to answer questions that my mom wouldn’t.”
7The move to the R[…] Street residence necessitated a change in schools for C.M. She switched to P[…] School, and it was there in grade 6 that she developed an interest in a boy who “was nice to her”. It was the evidence of the complainant that she went to the accused rather than her mother to discuss her curiosity about boys and how to interact with them. It was the evidence of C.M. that she asked the accused how to kiss a boy, and initially he used words to describe how this was done, and had C.M. practice on her hand. It was the evidence of C.M. that the kissing instruction eventually progressed further to the point where the accused “showed me by kissing me on the lips” and how to “make it better” by using their tongues to kiss. The complainant described that this activity made her feel “special” and did not change her feelings about the accused. As C.M. put it, “I still felt like he was someone that I could trust”. It was the evidence of C.M. that on the direction of the accused, she did not tell her mother about this kissing activity.
8C.M. testified that the activity between herself and the accused became more sexual, progressing slowly at first. She described “a lot of kissing and touching” where the accused would touch her breasts and “sometimes he’d put his hand between my legs and he’d put my hand on his private area”. As to a timeframe, the complainant places this activity when she was near the end of grade 6 and the beginning of grade 7. The complainant testified that this activity started over clothes at first, but then progressed to the point where clothing would be removed. C.M. testified that this activity took place in various locations throughout the home, such as the living room, basement, bathroom, and in her bedroom and the bedroom of the accused.
9The complainant testified that this sexual activity between herself and the accused became “more intense”. As she testified, “He started teaching me about things like hand jobs and blowjobs”. As to when the first blowjob or hand job occurred, the complainant testified that “It’s all really muddled together. I’m not sure that I could place any of those”.
10The complainant did have a clear recollection of the first time sexual intercourse took place between her and the accused as occurring at the R[…] Street residence when she was in grade 7. The complainant described it as follows:
I remember being in the living room of the house on R[…] Street. I believe that we were on the floor, kind of remember the carpet. It was soft. At some point he ended up naked, I was naked. He was lying flat on his back and he was trying to explain to me that this was the best way to do it because I could control the depth and how far it would go, and that we can stop if it hurts, and he was touching my breasts and I remember feeling like I had to pee, and he told me that was okay, that I should just let that happen.
11The complainant testified that during that first act of sexual intercourse with the accused that, “He would tell me that he liked my body and that I was doing a good job”. The complainant described the accused as being “affectionate and reassuring” and testified that this first act of sexual intercourse between them “made me feel connected to him. I didn’t see anything wrong with it”.
12The complainant testified that the sexual activity between herself and the accused continued while they resided at R[…] Street. She testified that when she was in the bathroom showering sometimes the accused would come in and pull back the curtain and watch her wash herself or help her wash her body and her private parts.
13After the complainant graduated from grade 8, the family moved into a larger home located on A[…] Road. This was a four-bedroom home, which the complainant and her sister B. could each have their own bedroom. This home had more property attached to it including a barn which would accommodate horses and the complainant’s interest in horses. C.M. had acquired three horses by this point in time and these horses could be kept right at the A[…] Road property rather than being boarded off-site, as they were when the family lived on R[…] Street.
14While work was being done to ready the A[…] Road property, the family camped at Pointe Des Chenes. This was the summer prior to C.M. entering high school. The complainant testified that she and the accused continued to be physical while at Pointe Des Chenes, but that it was “mostly touching and kissing” when they were there as the space was limited and it “was harder to find opportunities to be involved in a physical way”.
15In her evidence, the complainant described the change which she says occurred in her relationship with the accused after she started grade 9 and moved into the A[…] Road residence. C.M. testified that there was conflict between her and the accused about her going out with friends and her taking care of the horses. The complainant testified that these conflicts were often resolved by her owing the accused sexual favours. The complainant testified that she recalled an occasion where she wanted to go to the movies with her friends. The accused would not permit her but she eventually did go. As the complainant put it in her evidence, “And finally it came down to you can go to the movies if you give me a blowjob”. The complainant testified that she did give the accused a blowjob and that in return she got to go the movies with her friends.
16The complainant described the change in her relationship with the accused as follows:
It became less about me and me feeling good about myself, and it became more about what he wanted, and it became a lot more aggressive, like, if I wanted to do something there were demands put on it. And if I didn’t follow through, he would keep like a tally of, well, you already owe me, so I don’t believe you, so you can’t go.
17The complainant testified that what she would owe the accused were “sexual demands”, which most often was a blowjob.
18It was the evidence of the complainant that when she did comply with the accused’s sexual demands, “Then everything went back to the way it was and he was affectionate, and I would go and do whatever I wanted”. The complainant testified that if she did not comply with the accused’s sexual demands he would not pay attention to her or he would yell at her for the stalls not being cleaned properly. As the complainant put it, “I was iced out” if she did not comply with the sexual demands of the accused.
19The complainant related to the court an incident which occurred when she was in grade 9 or 10. She went to a friend’s home and consumed vodka resulting in her being silly and making disclosures to her friend. The complainant testified that, “I must have said something to her about what was going on in my personal life”. The next time she was at school the complainant was summoned to the office about what she had said to her friend and the Children’s Aid Society was involved. The complainant indicated in her evidence that, “I didn’t say anything, I was just freaking out”. It was the evidence of the complainant that she disclosed to her mother at that time what was going on between her and the accused, but that her mother questioned why she would say that about “a man who’s given me everything”, and told her that the Children’s Aid Society would take her and her sister away. The complainant testified that, “My interpretation of it was that she didn’t believe a word that I was saying and I felt backed into a corner, and I was still very upset and I wasn’t sure what to do from there”. In the end nothing came of this and the complainant continued to reside at the A[…] Road residence with the accused.
20It was the evidence of the complainant that at some point in time she and the accused had a conversation about discontinuing the physical contact between them. As stated in her evidence:
M.R.M. and I had a conversation, a private conversation, and he promised that it wouldn’t happen anymore and that we could just work on being a normal family, and that he would leave me be. And at that time, that sounded okay with me. I didn’t want to split my family up. I didn’t want to put everybody in the middle of anything.
21The complainant testified that after she graduated from grade 12 and while she attended Lake State University that the sexual relationship with the accused continued, and that they were still having intercourse.
22It was the evidence of the complainant that the last sexual act between her and the accused occurred in August 2015. The complainant would have been 25 years old at the time. The complainant wanted to attend a horse show in Echo Bay. The accused refused to go or to take her and she was to find “her own trailer” to transport her horses to the show. The complainant acknowledged in her evidence that she may have initiated this sexual encounter with the accused. She testified that, “I offered to have sex with him if he would take us to the horse show because I thought that it was the only way to get a break from being so isolated from everything that was happening around me”.
23The complainant testified that she did have sexual intercourse with the accused in the living room with her naked and the accused on top of her. The complainant testified that this last sexual encounter with the accused made her feel “disgusted with myself”.
24In her evidence the complainant testified about the various places within the R[…] Street home and A[…] Road home where sexual activity between her and the accused took place. She detailed encounters in the living room of the home and in the kitchen where she said the accused had sexual intercourse on the kitchen table. It was also the evidence of the complainant that while at the A[…] Road residence she and the accused had sexual intercourse in the barn which was approximately 200 feet from the home, and that sometimes this took place in the winter. The complainant testified that the barn “was a good vantage point to keep an eye on if people were coming and going”. The complainant acknowledged in her evidence that sex in the barn was often cold and uncomfortable:
So, upstairs in the hayloft when there was hay in the barn, he would sometimes put a blanket down up there and he would watch through the slats in the walls. The boards aren’t typically really close together, and he had full view of the driveway and people entering or leaving the house, so he could keep an eye to see if anybody was coming.
25The complainant was cross-examined vigorously and extensively. At times this cross-examination focused on pointing out what was suggested to be incredible claims being advanced by the complainant. Portions of the transcript of the preliminary inquiry held on May 9 and 11, 2017 were read back to the complainant. Included in this was her evidence that the sexual encounters with the accused became more frequent in high school. As the complainant testified, “I would say at least once or twice a week”. The complainant described that “sexual intercourse was more frequent, oral sex and touching”. At the preliminary inquiry the complainant also gave evidence that the accused performed oral sex on her “frequently; he enjoyed that”. After giving this evidence defence counsel suggested to the complainant that if the math was done this would mean that sexual relations between her and the complainant occurred over 400 times when she was in high school for four years. The complainant agreed with this suggestion.
26The complainant testified that it was common for her and the accused to have sex in the home in the morning hours, before her mother or her sister were up. The complainant in cross-examination agreed with the suggestion put to her that this could have occurred one hundred times while she was in high school. The accused worked construction and would go to work early in the morning. In the winter, the accused would do snowplowing jobs which also had him out of the home early in the morning. The complainant agreed that the accused would often be out of the home early in the morning, but suggested in her evidence that that would be during the week and not the weekends. The complainant also testified that sometimes the accused would return home after snowplowing and they would engage in sexual relations at that time.
27Advancing the theory that there was no opportunity to have the sexual relations that the complainant suggests, the complainant was asked detailed questions in cross-examination about her morning schedule at home prior to leaving for school in the morning. The complainant testified that she woke up at 6:30 a.m., and was on the school bus at 7:10 a.m. to go to school. When she had the use of a vehicle in grade 11, the complainant testified that she would leave for school at 8:30 a.m. These times were for when the complainant was in high school and was living at the A[…] Road residence. There were horses on the property, and the number of horses to be taken care of ranged anywhere from 3 to 17 at any given time. It was the evidence of the complainant that in the space of 40 minutes, while she had to shower, get ready for school, and take care of her obligations with respect to the horses, she and the accused had time for sexual relations, which sometimes included sexual intercourse or mutual oral sex. When the implausibility of having the sex that the complainant described in just 40 minutes with all else that was going on in the morning was put to the complainant, she denied that she was fabricating the story and also testified that it didn’t take the accused long to have sexual relations, that he was “quick to finish”, as she put it.
28There was also the issue raised about other people being in the home when these sexual encounters between the complainant and the accused took place. The R[…] Street home was a smaller home, apparently less than 1400 square feet. The complainant and her sister shared a bedroom in this home and all of the bedrooms were on one floor. There was a single bathroom on the main floor of the home. The A[…] Road home was larger and the complainant had her own bedroom in that home.
29It was the evidence of the complainant that sometimes the sexual encounters took place when her mother was at home or her sister was at home, or sometimes when both were at home. It was the evidence of the complainant that these sexual encounters took place in the bathroom, or in the living room, and sometimes on the kitchen table, just to name a few locations. The complainant estimated that she had sexual encounters with the accused on approximately 50 occasions when her mother was in the shower. It was put to the complainant in cross-examination that she must have been concerned that someone would hear them given the close confines they were in. It was put to the complainant in cross-examination that her mother could have come downstairs in seconds while she was giving the accused a blowjob. The complainant agreed with that suggestion stating, “That didn’t stop him, and it didn’t stop the situation”. The complainant testified that the accused “liked the thrill of it, the chance of getting caught. That seemed to be something that he enjoyed.”
30This evidence about the willingness to have sexual encounters in the home while others were around for the thrill of it is hard to reconcile with the complainant’s evidence about sexual encounters that took place between her and the accused when they spent the summer in the trailer at the Pointe Des Chenes Park prior to moving into the A[…] Road residence. Although there were times they were alone in the trailer, the sexual encounters between her and the accused were infrequent and limited to kissing and touching or the occasional hand job, according to the evidence of the complainant. The complainant testified that this was because she and the accused were worried that they would be interrupted. Her evidence was that neighbours would come over to the trailer and walk into the trailer unannounced and that this was a usual occurrence. How is the risk of being caught in this situation any different from the risk the complainant says they were willing to take in the house, when they had sexual encounters with her mother or B. at home? I find it difficult to reconcile this evidence of the complainant on this point.
31In her examination in-chief the complainant portrayed herself as someone who was easily manipulated by the accused and his sexual demands on her. In cross-examination, many of the answers given by the complainant to questions about her relationships with others painted a different picture. These answers portrayed a strong-willed individual who did not bend to pressure and who was able to get others to do what she wanted.
32There was sometimes difficulty between the complainant and the borders who kept their horses at the A[…] Road property. The complainant described these difficulties as “personality differences or ways that we would do things with the horses”. It was the evidence of the complainant that she would complain to the accused and that he would get rid of the boarders after she complained, “to keep me out of conflicts” as the complainant put it. The defence in cross-examination suggested that this displayed a great deal of self-confidence in someone who was 17 or 18 years at the time. On this point the following question was put to the complainant:
You have enough self-confidence to be able to go and complain about people, people like borders who were paying money, and have them removed?
The answer to that question by the accused was “Yes”.
33At one point in time the complainant’s sister B. rode horses as well as the complainant. This ended because of difficulties with the complainant. As the complainant testified, “Well, she was making fun of me because I couldn’t go as fast as she could, and I complained to M.R.M., and he told her that the barn was my thing and that she needed my permission to go down there”. The complainant did not give her permission to B.. “I didn’t want her down there”, was the explanation that the complainant gave in her evidence.
34Although she had a vehicle in grade 12 and her sister was in grade 9 and they were attending the same school, the complainant would not give her sister a ride to school and insisted that B. take the bus to school. The complainant’s rationale for this was “I had to take the bus at the beginning of high school, so I felt that it was only fair she did too”. The complainant insisted on this arrangement and there is no suggestion in the evidence that her mother or the accused interfered with this decision made by the complainant.
35The complainant testified that while she was a student at Lake Superior State University she had a boyfriend who she visited in Virginia over the objections of the accused. It was the evidence of the complainant that she had a huge disagreement, a “fight” as she described it with the accused about her going to visit her boyfriend in Virginia, but that she went anyway over the objections of the accused.
36It is difficult to reconcile the aforementioned examples which suggest that the complainant has a defiant attitude and a manner of self-preservation with the complainant’s description of being manipulated and controlled by the accused to the point where sexual favours were exchanged for the complainant being permitted to do certain things, such as go to the movies with her friends.
37Then there is the whole issue about how the sexual relationship with the accused started in the first place. It was the evidence of the complainant that she approached the accused about how to kiss a boy. She was 10 or 11 at the time. The accused was 47 years of age at that time. The complainant’s evidence is that she did not speak to her mother about this or even about when she had her first menstrual cycle, because her mother was uncomfortable about discussing such matters. It is difficult to understand why a daughter would not talk to her mother about such things. By her evidence, the complainant talked to her mother about what was going on with the accused after the Children’s Aid Society attended at her school. This had to be an uncomfortable subject to talk about, but the complainant talked to her mother anyway. It was certainly a more difficult topic to talk about than how you kiss a boy or show a boy in your class that you are interested in him. In cross-examination the complainant was asked if she ever did kiss the boy and she said no “because I chickened out and I was afraid of the social consequences. The kids at my new school were pretty mean to me already. I didn’t want to walk up to one of the popular boys and kiss him”. This answer makes sense given the age of the complainant at the time. It could be suggested that if the complainant never did kiss the boy, then she didn’t ask the accused about this in the first place. It could also be suggested that if the complainant was fabricating this part of her evidence, she could have easily said she did kiss the boy and this would have went unchallenged.
38It was the evidence of the complainant that when she was in grade 9 or 10 after the incident with her friend and the Children’s Aid Society being involved that she disclosed to her mother what was going on between her and the accused, and that this disclosure was made in the bedroom at the A[…] Road home. At the preliminary inquiry, the complainant testified that she did not tell her mother anything until after the accused was charged and that this was by way of a telephone conversation. The complainant dealt with this inconsistency in her evidence at the trial testifying that she gave the information about her conversation with her mother in the bedroom after CAS was involved in her video statement to the police which was played at the preliminary inquiry, so she didn’t see a need to repeat what was in the video. Even if that explanation for her inconsistency was accepted, the larger question is if she did in fact tell her mother after the CAS was involved about her sexual relationship with the accused, would it not follow that her mother would be vigilant or on the lookout for what was happening at the home after that point? It was the evidence of the complainant that even after that discussion with her mother, in grade 9 or 10, that she and the accused had sexual relations throughout the home at A[…] Road even when her mother was in the home, or outside the home gardening and doing other similar activities. This strains belief if in fact the discussion between the complainant and her mother did in fact take place as she described it in her evidence.
39There are, therefore, red flag raised in the evidence of the complainant. Despite these red flags, there are also areas in her evidence where the complainant had an opportunity to fabricate evidence or embellish her evidence and she did not do so. As to when the complainant gave the accused the first blowjob or the first hand job, the complainant’s response was, “It’s all really muddled together. There’s been a lot. I’m not sure that I could place any of this”. This is a forthright response by the complainant. At another point in her evidence when pressed to detail the order of events, the complainant testified that, “It happened so frequently and so often after the first instances and for so long, that it’s hard for me, like, time and place the events sequentially”. This is a forthright answer. As to going to the horse shows, this was an opportunity for the complainant to embellish her evidence by suggesting that she and the accused went alone and that there were opportunities for sex which were utilized. The complainant’s evidence was just the opposite. The complainant described that, “Normally it was the three of us”, who went to the horse shows, meaning her mother, herself and the accused. When asked about the times when she and the accused went alone to the horse shows or to pick up horses in Southern Ontario, the complainant was asked directly “Would anything happen?”, her response being, “Sometimes when we were driving, he would put his hand on my leg.” Here was a perfect opportunity for the complainant to fabricate or embellish her evidence by suggesting that something sexual happened between herself and the accused when they went on the horse shows, or that the accused took advantage of her sexually on these occasions, but the complainant did not do this. As I indicated earlier, the complainant’s evidence about whether she in fact kissed the boy at school was an opportunity for her to bolster her version of events about learning about kissing from the accused. The complainant did not testify that she in fact kissed the boy; her evidence as that she did not. This was a perfect opportunity for the complainant to bolster her evidence without being found out but she did not do so.
40So, it is fair to say that although there are red flags raised in the evidence of the complainant to cast doubt on the believability of her evidence, there are also aspects of her evidence that leads one to believe that the complainant is being truthful, and forthright in her version of events.
41Another aspect to be considered and reflected upon by the court in assessing the credibility of the complainant and whether her evidence is to be accepted, is her general demeanor while giving evidence to the court. It is a clearly established principle that the court can consider testimonial demeanor in the evaluation of a witness’s credibility (See: R. v. J.J.B. 2013 ONCA 268). It was clear from the outset that the complainant, C.M., had difficulty in giving her evidence to the court. She testified behind a screen and with a service dog by her side. The complainant’s reluctance to testify was evident from the start. Very shortly into her testimony the complainant needed a break. Throughout her testimony the complainant asked for frequent breaks and the breaks were of longer duration than usual for court recesses. When counsel in cross-examination suggested to the complainant that her evidence was fabricated as “payback” the complainant was firm in her response, “No, it’s not. I don’t want to be sitting up here. I just don’t want him to hurt anyone else.” I accept that the complainant didn’t want to be in the witness box. I accept that it was difficult for the witness to testify, which likely would not be the case if someone was trying to extract revenge. One would expect a revenge seeker to relish giving evidence a great deal more than the complainant did while giving her evidence.
42In considering the only evidence available to this court, the evidence of the complainant, C.M., the court must bear in mind the principle of reasonable doubt, which is a cornerstone in the criminal justice system in Canada. It is helpful for the court to remind itself of the direction the court gives a jury concerning the principle of reasonable doubt. If this case was before a jury, the trial judge would provide the following instructions on reasonable doubt to the jury before they began their deliberations:
The phrase “beyond a reasonable doubt” is a very important part of our criminal justice system.
A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence.
It is not enough for you to believe that the accused is probably or likely guilty. In those circumstances, you must find him not guilty, because Crown counsel would have failed to satisfy you of his guilt beyond a reasonable doubt. Proof of probable or likely guilt is not proof beyond a reasonable doubt.
You should also remember, however, that it is nearly impossible to prove anything with absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high.
If, at the end of the case, after considering all the evidence, you are sure that the accused committed the offence, you should find the accused guilty of it, since you would have been satisfied of his guilt of that offence beyond a reasonable doubt.
If, at the end of the case, based on all of the evidence or the lack of evidence, you are not sure that the accused committed the offence, you should find him not guilty of it.
43This has not been an easy case to decide. I have struggled and agonized greatly over my decision.
44Having said this, in considering the totality of the complainant’s evidence, there are simply too many red flags raised (which I have identified earlier in my reasons) to lead me to the conclusion that I am sure of the guilt of the accused. I am not saying that I disbelieve the complainant’s evidence or that I have concluded that she has misled or lied to the court. What I am saying is that the level of her evidence does not rise to the standard where I can conclude beyond a reasonable doubt that the Crown has established all of the essential elements of the six criminal offences set out in the Indictment. Had the standard of proof been one of a balance of probabilities, the result would have been different. I have not sought perfection in the evidence of the complainant but rather have looked at her evidence objectively, and in doing so, there are aspects of it which defy logic, seem incredible, and raise a reasonable doubt.
45Having reached the conclusion that the court is left in a reasonable doubt about the guilt of the accused, there must be an acquittal registered in favour of the accused. Given this result in favour of the accused, I do not intend on providing written reasons with respect to the oral mistrial motion brought by counsel for the accused during the course of the trial. My written endorsement on the back of the Indictment dismissing that motion will suffice as reasons for the disposition of that motion.
Gareau J.
Released: October 5, 2018
CITATION: R. v. M.R.M., 2018 ONSC 4798
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
M.R.M.
REASONS FOR JUDGMENT
Gareau J.
Released: October 5, 2018