Court File and Parties

COURT FILE NO.: CR-17-00000481 DATE: 2018 10 01

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Amy Mountjoy for the Crown

- and -

S.P. Tom Wiley for the defendant

HEARD: June 12, 13, 16, July 17, 18, 2018

REASONS FOR JUDGMENT

D.E. HARRIS J.

[1] S.P., 57 years old at the time and 59 now, is charged with sexual assault and sexual touching for alleged offences against his stepdaughter B.V. over an offence period from October 1, 2015 to April 30, 2016.

[2] S.P. had been married to B.V.’s mother, C.F. since 2010. The three – B.V., S.P. and C.F. – lived together. B.V. was 16 years old at the time. The allegation is that approximately three times a week, S.P. would enter B.V.’s bedroom early in the morning ostensibly to wake her up for school. C.F. would already be out of the house on her way to work. S.P. would rub B.V. while she lay on her bed over a duvet, bed sheet and blanket in a circular type motion, on occasion rubbing her breast area, her inner thigh close to her vagina and her buttock area.

[3] B.V. estimated that there were about 12 incidents of inappropriate touching while in her bed in the mornings: 3-4 in the breast area and the remaining in the inner thigh, close to her vagina. There was some touching of the buttocks too. The total time of the touching varied between 2-8 minutes although not all of this was on the sexual areas of the breasts and inner thighs.

[4] There were several incidents which were the subject of testimony from both the complainant and the accused. In one of these, the complainant was listening to an audio book called “The Road” in her bed. The accused came into her room, dressed in running clothes. He laid down and fell asleep in her bed. On her account, he had his arms around her torso and was under the sheets. On his evidence, he was not under the sheets and if he touched her it was only incidentally.

[5] There was what I will call the “spooning” incident. B.V. testified to an incident on one of the living room couches in which the accused joined her for a nap. There was also a suggestion that they might have been watching TV. Both laid on their sides, face to face. According to the complainant, his hands were between her legs, upper to mid-thigh. When her mother came into the room, they both got up. Both the mother and the accused testified with respect to this incident as well. All three agreed it had happened but there were some differences in their evidence.

[6] The third incident took place in a hotel on the Amalfi Coast in Italy during spring break vacation in 2016. The accused knocked on the complainant’s hotel room door and asked if she had anything to treat severe gas pains he was experiencing. She did not. According to her, he hugged her for a period of 8 minutes. It was acknowledged that this was more how it felt as opposed to an actual estimation of time. The accused admitted to the incident but estimated the hug to be more like 10-15 seconds.

[7] The fourth incident involved the accused asking the complainant to help clean the pool during a time she was studying for exams. She became extremely upset.

[8] The last incident took place when she was preparing for her boyfriend’s prom at home. The accused was present. The complainant again became very upset as she felt that the accused was there just to see her and was meddling in her preparations.

[9] B.V. disclosed first to her boyfriend K.M., who testified, and then to her therapist, who did not. S.P. was charged soon after the disclosure.

[10] B.V.’s mother C.F. testified and attested to an email from S.P. written after his arrest in which he appeared to ask her for forgiveness, apologized for the pain he had caused and asked to make reparations. This had the appearance of an admission of guilt. However, in cross-examination, it was put to C.F.’s attention that he had written an email about six days before in which he had forcefully denied the truth of the allegations. Although S.P. begged C.F. to hear his explanation and his protestations of innocence, she refused to hear them at any point. She believed her daughter. The matrimonial home was put up for sale immediately, only several days after the allegations were made.

[11] S.P. testified in his own defence. He admitted rubbing B.V. in a manner similar to her description for the sole purpose of getting her up to attend school on time but he denied that he ever strayed into sexual areas. There was never any sexual purpose in touching her. He admitted the spooning incident on the couch but with significant differences.

PROOF BEYOND A REASONABLE DOUBT

[12] The Crown, to prove guilt, must convince me to a high degree of certainty that the acts alleged occurred. Proof of guilt must be beyond a reasonable doubt. The finder of fact need not be certain to a level of mathematical certainty. But a jury or judge, in accord with the standard of proof beyond a reasonable doubt, must on all the evidence be “sure” that the acts took place: R. v. Lifchus, [1997] 3 S.C.R. 320, at paras. 231-232; R. v. Bisson, [1998] 1 S.C.R. 306. This is closer to absolute certainty then it is to the civil balance of probabilities standard: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242 per Justice Iacobucci.

[13] The presumption of innocence, the burden of proof and the necessity to prove guilt beyond a reasonable doubt are the central procedural safeguards in our system of criminal justice. They are basic to our conception of democracy and fairness. The Crown faces a formidable obstacle in displacing the presumption of innocence and proving an accused’s guilt.

[14] In order to fully appreciate the beyond a reasonable doubt standard, it is important to understand its purpose and significance. It has never been said better than Chief Justice Dickson said it in the seminal Charter of Rights and Freedoms decision of R. v. Oakes, [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7 at S.C.R., pp. 119-120,

… An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other social, psychological and economic harms. In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures that until the State proves an accused's guilt beyond all reasonable doubt, he or she is innocent. This is essential in a society committed to fairness and social justice. The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law-abiding members of the community until proven otherwise.

THE COMPLAINANT’S EVIDENCE

[15] The complainant is now 18 years old and in her first year of university. She presented as a bright, alert young woman. Over lengthy examinations, both in-chief and in cross, she remained poised. Her affect was carefully controlled and regulated. She did not become agitated or angry despite probing and quite personal questions in cross-examination. Her voice lifted rarely. One exception was enthusiasm expressed about her pet dog.

[16] There are several areas I wish to explore with respect to B.V.’s reliability and credibility.

THE FAMILY SITUATION AT THE TIME OF THE ALLEGATIONS

[17] B.V.’s parents were divorced soon after she was born. She maintains close but occasionally volatile relationships with both her father and mother. In 2010, B.V. lived with her mother and the accused. They had just been married. In about 2012, she moved in with her father, his wife, E. and her two brothers.

[18] B.V. herself candidly admitted that she was a difficult teenager and was very stubborn. She said she was a hothead. She was not in the habit of attending school very often. She admitted lying about this regularly.

[19] In 2014 a major event occurred in her life. B.V. was not getting along with her stepmother E. She made her feel less of a person, B.V. testified. There was a considerable amount of conflict. For example, B.V. testified that when she did not clear her plate from the dinner table, E. would throw the plate onto B.V.’s bed, getting food over the sheets. If true, this was a demeaning act which reflects very poorly on the parenting of B.V.

[20] What matters most is that as a result of the conflict, B.V. was kicked out of her father’s house. She went to live with her mother and the accused. Her belongings were unceremoniously packed up for her and transported to her mother’s house. This was against her wishes. B.V. was, understandably, deeply hurt. Originally this was seen at least by B.V. and her mother C.F. as a temporary situation, perhaps only a weekend. But it continued for an extended period, through the time period of the allegations in this case. It was difficult for B.V. not to live with her brothers, in particular. She still saw them regularly at her mother’s house but it was not the same. The relationship with her father was badly damaged and was slow to heal.

[21] The second major event, one bearing more directly on the allegations here, were the circumstances around being told by her mother C.F. that she could not come back to the house she shared with her and the accused. It was several days after Mother’s Day weekend in May of 2016. B.V. had been, according to what she told her mother, sleeping over quite frequently at a girlfriend’s house. B.V. had steadfastly refused to give her mother the girlfriend’s address or phone number. C.F. noticed an indication on her own cell phone which suggested that her daughter was not where she said she was supposed to be. She went over to B.V.’s boyfriend’s house, K.M., and knocked on the door in the wee hours of the morning. She confronted K.M.’s parents. It was a very awkward, unpleasant situation. B.V. was indeed there and K.M.’s parents knew it but were unconcerned. B.V. had been sleeping there regularly while lying to her mother and saying that she was at her girlfriend’s house.

[22] In her evidence, B.V. accepted that her mother had every right to be angry and that she had been telling her “big” lies. B.V. and her mother sat down with K.M. and his parents and had a painful and unpleasant discussion in the living room. B.V. found it all very humiliating. Part of the conversation was about sex. As punishment for the lies she had told, her mother decided that B.V. would be grounded for two days. B.V. would not accept this punishment and was defiant. Commenting in her evidence, she said the discipline was fair for a regular kid but not for her. The argument escalated and B.V. was told that she could not come back home. It was B.V.’s testimony that she learned from her mother that S. P. had advocated in favour of the decision barring her from the house.

[23] This was the second time that B.V. had been driven out of a parent’s home. She testified that she was still traumatized from being exiled from her father’s home. Although her mother soon retracted the prohibition, to a significant extent the damage had already been done. After B.V. was caught lying about where she was staying at night, B.V. testified that she slept at a friend’s house for a couple of days. The totality of the evidence also establishes that in the days that followed she slept at least once, and probably many more times, at her boyfriend’s house again.

[24] My intention is not to apportion blame between B.V. and the parental figures in her life but rather to evaluate whether this sometimes unsettling environment is relevant and material to whether the allegations have been proven. In my view, from her point of view B.V. felt abandoned by her parents and banished from their houses on these two occasions. She was expelled from her father’s house before the allegations in this case but the hurt, according to her own evidence, lingered on. Her mother and the accused’s decision to bar her from their house took place after the offence period described in the indictment but before the complaint to the authorities in early July of 2016.

[25] Unsettled and tumultuous circumstances do not necessarily lead to unreliable evidence, of course. But in this case, aside from the emotional difficulty B.V. was going through, the evidence demonstrates that she was well familiar with the power to banish a person from their home. She had been subjected to it herself. That certainly does not, in and of itself, mean that she falsely accused S.P. to get him out of the home and away from her mother. But it is a relevant circumstance.

[26] The evidence also shows that B.V. is capable of lying and perpetuating dishonesty over time, albeit in quite a different context. Lying to her mother about where she was sleeping does not equate to lying about the allegations in this case. But it was a major fabrication and shows she is capable of considerable deception.

THE DISCLOSURE PROCESS

[27] B.V. and her boyfriend K.M. testified about the disclosure process. B.V. disclosed first to K.M. who then spoke to B.V.’s father. B.V. then disclosed to her therapist who notified the police. The police interviewed B.V. and the accused was then arrested and charged. This evidence was of course not tendered for its truth as it is inadmissible for this purpose.

[28] B.V. testified that she started to tell K.M. about mid-April, almost at the end of the offence period of April 30, 2016. At least in retrospect, she did not think that he believed her. She was very vague with him initially. She recalled a time that she told him in the parking lot of his work place. B.V. remembered saying that her stepfather, the accused, came downstairs and rubbed her in a way she did not like. She did not say anything about him rubbing her breasts or inner thighs. At some later date, she added those details.

[29] K.M. testified that after Valentine’s Day in 2016, he and B.V. started going out. They became inseparable following spring break in March. When they were not together, they would interact over social media, by cell phone or by text. They were extremely close.

[30] K.M. testified that about two or three months before receiving all the details, B.V. had told him that the accused made her uncomfortable. It was also mentioned that the accused had said negative things about him: K.M. He did not remember when this was. K.M. said that at one point B.V. told him that the accused would come down at night to her bedroom and touch her. However, it was hard to place things in a sequence as this time period was a blur in K.M.’s mind.

[31] At times, B.V. would get very upset and K.M. would have to calm her down. Some of this was a response to the accused, it seems. It was not entirely clear how much. In cross-examination, K.M. said that he did take what B.V. said seriously.

[32] Two incidents occurred not too long before the accused’s arrest which bear on the disclosure process. The first was the occasion on which the accused asked B.V. while she was studying for exams to clean the pool. At the time, she was face timing with K.M. There was a good deal of anger towards the accused for interrupting and insisting on showing her something when exams were her priority. Furthermore, the accused joked that if K.M. failed a grade, then he could be in classes and go to school with B.V. He was a grade ahead of her and so, if he failed, he would be in her grade. Although they denied being angry or upset, clearly both B.V. and K.M. were incensed by this sarcastic remark. It was a prominent event in their testimony.

[33] K.M. testified for the Crown about the pool incident. He said that when he saw her after they were reconnected, he realized that there was something very wrong. She looked horrible. She was standoffish and would not look at K.M.

[34] The complainant testified that the pool incident led him to approach B.V.’s father with his suspicions of improper sexual conduct. What he saw and heard on facetime convinced him that something untoward was occurring. After they were reconnected by cell phone, she looked horrible.

[35] This was a turning point in both B.V. and K.M. minds. This, so they both testified, was when K.M. believed that B.V. had been inappropriately touched by S.P. B.V. had said that the accused had done things in the past. K.M. was only convinced after observing her demeanour during the pool incident that things must be happening and the accused was inappropriately touching her. This is what led him to talk to B.V.’s father about the situation and voice his suspicions.

[36] Neither K.M. nor B.V. testified that anything occurred in the pool incident which was sexually inappropriate. K.M. was responding to B.V.’s anger and dislike of the accused. From this he seemed to deduce that there was prior inappropriate conduct towards B.V.

[37] The other incident was during the preparations for K.M.’s prom. This took place after the offence period and just before the complaint to the police in early July. Again, there was no sexual impropriety alleged. The complaint was that B.V. had asked for space to get ready for K.M.’s prom. The accused was not supposed to be home but he was. He was a nuisance during her preparations. Again, there was a lot of anger directed towards the accused because of this. It was only days later that the complainant disclosed to her therapist.

[38] It is important to examine the process and content of disclosure in assessing the credibility and reliability of an accusation of sexual assault. The impetus for disclosure may contain clues with respect to a pattern of internal inconsistency or a potential motive to fabricate. It has been recognized that there may be substantial importance in “what it was that precipitated the complaint eventually made.”: R. v. Ay, [1994] B.C.J. No. 2024, 93 C.C.C. (3d) 456 (B.C.C.A.), at p. 470. The process and substance of disclosure, often one of the only “extrinsic” sources of evidence, can be important in evaluating reliability and credibility: Issues Arising in Criminal Prosecutions for Distant Events by Marc Rosenberg (1995 Canadian Appellant Court Seminar /Colloque de 1995 des Cours d'appel canadiennes) LexisNexis, Alan D. Gold Collection of Criminal Law Articles, ADGN/RP-005, at para. 27.

[39] There are several features in this case which warrant comment. First, there is a discrepancy between B.V.’s account of the offences and K.M.’s version of what she reported to him. He said that she told him the offences were committed at night; she testified it was in the morning. Second, B.V. said that she told K.M. that there was inappropriate touching going on but she did not want to tell him and did not tell him the full circumstances for quite sometime. I find that somewhat strange. The allegations, although of course serious as they involved a breach of parental trust, were towards the lower end of the physical spectrum. It seems odd that details such as these would be held back. If she decided to disclose, why only vague generalities? Most people would hear the allegation of “inappropriate touching” and imagine something far worse than occurred in this case. So why not be more detailed and specific?

[40] The event according to K.M. which led him to be convinced of the truth of the allegations and resulted in him informing B.V.’s father was the pool incident. But all K.M. observed was B.V.’s reversal of mood and anger towards the accused. There was no allegation of sexual assault with respect to this incident. A display of anger, in the context of their relationship, in no way implied or fortified a conclusion that the complainant had been sexually assaulted. There is a significant lapse of logic about how a display of indignation would motivate K.M. to go forward when the previous complaints of sexual impropriety had not.

[41] The defence attacked K.M.’s evidence. At one point in cross-examination, while discussing B.V. sleeping over at his house despite her mother discovering this and disapproving, counsel questioned why B.V. was allowed to continue to sleep over at K.M’s. K.M. replied that he did not see the moral issue. He then interjected that it “sucked” that defence counsel did not have a good childhood himself.

[42] K.M. was 19 years old when he testified, having finished his first year of university. Quite likely, he had never testified in court before. Most 19-year-olds would be nervous and respectful in a court of law. The degree of formality and the ritual of court is unfamiliar to most. The lawyers are wearing black gowns and tabs. The presiding judge sits higher than the other people in the courtroom and wears a red sash. The courtroom is cavernous and impressive in its grandeur. The witness must testify after being sworn to tell the truth or making solemn affirmation. The allegations K.M. was testifying to involved allegations that his girlfriend had been sexually abused by her stepfather, a very serious matter needless to say.

[43] Despite the solemnity of the court proceedings, K.M.’s general air was cavalier and flippant. The remark to defence counsel was personal. It was antagonistic and combative. It was sarcastic. K.M. knew it was inappropriate. He was being a smart-aleck during his testimony in a serious criminal trial.

[44] I agree completely with defence counsel. The witness’ general attitude and his “that sucks” remark undermine both his credibility and reliability. If anything, this magnifies my concerns with respect to the evidence of the disclosure of the sexual assault complaint.

ANIMOSITY TOWARDS THE ACCUSED

[45] The complainant B.V. openly displayed hostility to the accused in her testimony at trial. In evaluating this, there is a significant risk of chicken and egg reasoning which must be avoided. Did she dislike him because he sexually abused her? She did, quite understandably, express this in her evidence. Or was there some pre-existing animosity as well?

[46] It was clear that she disliked the accused beyond and quite apart from what he allegedly did to her. There was animosity which arose from the pool incident discussed above, included the bad joke aimed at K.M. and from the prom incident as well. The complainant testified that she did not think that he was a good partner for her mother. She said in her videotaped interview that he was not an affectionate person, at least with her mom, but it was weird that he was affectionate with her. She testified at trial that she rarely saw them affectionate with each other. B.V. did not think they were close. There did not seem to be a connection between them. S.P. ignored her mother. She also felt that he did not do enough to help around the house.

[47] While on vacation, and it seems at all other times as well, S.P. and C.F. had an arrangement that they would each pay for themselves. On the Amalfi coast trip, for example, C.F. payed for her and B.V. while S.P. paid for himself. Their finances were not pooled, not even for restaurant meals.

[48] S.P., as a stepparent can be, was the outsider amongst the complainant and her mother. Again, the animosity towards the accused is far from definitive against the truth of these allegations. It is however a factor I will have to take into account in the application of the beyond a reasonable doubt standard.

IF THE COMPLAINANT WERE TO CONCOCT A STORY, IT WOULD HAVE BEEN “BETTER”

[49] The Crown in closing submissions argued that the complainant’s allegations were true because if she was going to fabricate a false story, it would have been “better.” By better, she meant the allegations would have been more serious.

[50] This a relatively common prosecution form of argument. It has a certain superficial appeal. In my view, however, skepticism is the correct approach to an argument which can be made in virtually every sexual case. Its persuasiveness is devalued by its generic, non-specific quality. It is hard to know what may lead complainants to fabricate sexual allegations. Logic suggests that there are myriad and sundry explanations.

[51] In this situation, at least as likely is the inference that the complainant fabricated a low-level allegation because she only wanted to break up her mother’s marriage and did not want to wrongfully send her stepfather to prison. The allegations were of touching over bedsheets and a duvet. There was very little detail about how long the accused lingered in the sexual areas. The touching on the inner thigh was one inch from the complainant’s vagina but not the vagina itself. Balancing against any inference that the complainant’s story would have been more serious if she were making it up is the inference that it may have been carefully calibrated to be relatively vague and low level because it was made up.

[52] I am not saying that I adopt these speculative musings. I do not. But it is as likely as the deduction that the complainant’s account is true because the assault was not as serious as is sometimes seen. I therefore give this argument by the Crown no weight.

THE SIGNIFICANCE OF THE “SPOONING” INCIDENT

[53] There is no doubt the spooning incident took place. All three people who were present testified to it: the complainant, the complainant’s mother and the accused. B.V. said the two were face to face on the couch. She was sleeping for part of the time. C.F. said that the two were in the true spooning position with B.V. facing the back of the couch and S.P.’s front facing her back like two spoons nestled together. S.P. agreed with the positions testified to by B.V.

[54] The two latter witnesses’ evidence did not support a conclusion that a sexual assault occurred. However, the complainant testified that the accused’s hands were touching her in the upper to mid-thigh area during the incident. In context, even if I accepted this evidence beyond a reasonable doubt and rejected entirely the accused’s evidence denying his hands were there, this factual finding would be insufficient to conclude that a sexual assault was committed. The complainant’s evidence was ambiguous on the sexual content of this act: R. v. Chase, [1987] 2 S.C.R. 293, [1987] S.C.J. No. 57.

[55] Yet the question should be asked whether the spooning confirms the complainant’s evidence with respect to the sexual offences against her. Even though insufficient to constitute a criminal offence on its own, the evidence may nonetheless be capable on a lower level of certainty of demonstrating a propensity to sexually touch the 16-year-old complainant. It is axiomatic that the evidence should not be subjected to a piecemeal standard of beyond a reasonable doubt: R. v. Morin, [1988] 2 S.C.R. 345, at p. 362.

[56] I do find this conduct suspicious. I would lump it in with the unduly long hug in Amalfi, Italy – even on the accused’s own evidence of 10-15 seconds – and lying on the complainant’s bed during The Road audiobook. This conduct was potentially sexual. I conclude that while none of the three incidents constituted sexual offences on their own, there was a sexual complexion to all of them. I will take this evidence into account when the standard of proof is applied to my findings of fact.

THE COMPLAINANT’S PARALYSIS DURING THE TOUCHING

[57] Several times the complainant testified that she felt paralyzed during the sexual touching. I find that this detail tends to strengthen the credibility of her account. Although not an invariable reaction by a young woman to sexual abuse, I can draw on my legal and judicial experience to say that this is a very common reaction. It makes perfect sense psychologically.

[58] At the same time, I do not think it is likely that the young complainant would be aware of this type of paralysis being a common reaction. This detail and the fact that it is not likely well known from other external sources, is a factor which enhances B.V.’s credibility.

THE ACCUSED’S EVIDENCE

[59] The accused testified in his own defence. As recounted above, he testified that the situations testified to by the complainant occurred but disavowed any sexual acts or intentions. Cross-examination tilled the same ground as did the examination-in-chief. For the most part it turned up no new evidence and no significant inconsistencies. It did not perceptibly weaken the accused’s credibility, subject to my comments which follow. There were no significant shifts in his evidence.

[60] With respect to the spooning evidence, the Crown argued that a well-educated and experienced person like the accused would not be insensitive to societal norms. He would know that the spooning with his 16-year-old stepdaughter was inappropriate. That he committed these acts despite this knowledge rendered his evidence incredible.

[61] The accused testified that at the time he did not see anything wrong with lying together with his stepdaughter on the couch. Later he added that in retrospect he understood why other people would not feel it was right but that he was frustrated as a father and as a parent that he could not do it.

[62] I agree with the Crown. There is a pervasive, unmistakable taboo with respect to father figures touching young women of B.V.’s age in our culture. The touching either could be sexual or, if not, could be misconstrued as sexual. This is all the stronger a taboo in the case of a stepfather. C.F.’s immediate reaction was one any parent would have had. She thought it was totally inappropriate. She was right. It was.

[63] S.P. is an intelligent man. He was not living under a rock and unaware of basic societal mores. There is nothing new or abstruse about the taboo. He knew it looked bad. This is shown by the fact that when C.F. came into the room, he immediately got up from the couch. That he knew it was inappropriate but did it anyhow has significance.

[64] Not only does the spooning add to the Crown’s case as I concluded above, the fact that S.P. laid with his stepdaughter knowing of the taboo and then said in court that at the time he saw nothing wrong with it, damages his credibility. S.P.’s social commentary evincing frustration that he could not do this took the evidence into another dimension. S.P. is not a revolutionary preaching for new advances in our familial culture. Nothing in his history, his mien or his testimony would support such a conclusion. Instead, in my view this was an enfeebled defence of actions which he fully knew were unacceptable.

[65] The other concern I have with his evidence is the email he wrote to his wife after his initial unequivocal email denial, in which he appeared to admit the offences alleged against him. He admitted on the witness stand that his language was awkward and should have been more careful. There is no doubt of that. It almost appeared that he was willing to admit guilt if she was willing to take him back.

CONCLUSIONS

[66] I will now apply the beyond a reasonable doubt standard to my findings. First, I conclude that the complainant’s evidence, subject to the reservations articulated above, was reasonably plausible. It was bolstered to a limited extent by the paralysis evidence and the spooning evidence together with the long hug and the instance where the accused fell asleep in the complainant’s bed. To quantify the effect of this evidence, it is important to recognize that the sexual aspect of these situations was not without ambiguity. I think it would be a mistake to put too much weight on evidence of this nature, particularly through the weak propensity inference route: see “McCormick On Evidence” (7th ed., Westlaw, 2016) § 186.

[67] I believe it is a natural and reasonable temptation to give the fact B.V. complained positive weight towards guilt. From a factual point of view, based on general experience, it is a reasonable inference that a person who complains of a sexual offence against them is more likely telling the truth than lying. However, this sweeping generalization is unhelpful. Cases are not decided on general patterns of behaviour. Guilt in our system is adjudged on the evidence in each individual instance. It cannot be founded on collective experience and probabilities or on general assumptions.

[68] To be clear, I am not referring to situations where there may be a proved absence of a motive to fabricate or, for another example, an indisputable lack of animosity towards the accused. The issue here concerns the mere fact of the complaint, quite apart from circumstances which can either decrease or increase its reliability.

[69] Besides the factual obstacles, there are also time-honoured protections woven deep in the fabric of our law. There is no presumption that a witness comes to court and tells the truth: R. v. Semple, 2015 ONCA 562, at para. 3. Placing weight towards guilt on the mere fact of a complaint is inconsistent with the presumption of innocence. The Crown and defence start the trial with a clean slate. To vest a complaint and criminal accusation with weight towards guilt contravenes fundamental organizing principles of our system of criminal justice: R. v. Dubois, [1985] 2 S.C.R. 350, at paras. 41-44; R. v. P. (M.B.), [1994] 1 S.C.R. 555, [1994] S.C.J. No. 27, at paras. 37-41.

[70] Similarly, an accused’s interest in the outcome of his or her trial cannot except in rare circumstances be considered by the trier of fact on the accused’s credibility: R. v. Labourcan, 2010 SCC 12, [2010] S.C.J. No. 12, at paras. 11-14. Both a guilty and innocent accused have a roughly equal motivation to be found not guilty.

[71] The situation is similar to Labourcan. It is the flip side. In that case, Justice Charron said at para. 14 with respect to the accused’s credibility:

…triers of fact would be well advised to avoid that path altogether [i.e. looking at the accused’s interest in the verdict] lest they unwittingly err by making the impermissible assumption that the accused will lie to secure an acquittal.

[72] In the same way, an assumption that because most complaints are likely to be true, this complaint was true as well, is impermissible. Such a conclusion is barred by the presumption of innocence. Justice Molloy recently said in R. v. Nyznik, 2017 ONSC 4392:

Although the slogan “Believe the victim” has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence. That is antithetical to the fundamental principles of justice enshrined in our constitution and the values underlying our free and democratic society.

[73] In conclusion, on the evidence here, the mere fact that B.V. complained does not boost the Crown’s case. The complainant and the accused came to court on an equal footing. In addition to the comments above, when regard is had to the circumstances leading to the complaint, there is something to the defence argument that the evolution of B.V.’s dialogue with K.M. may have led her to feel compelled to complain.

[74] Moving to the accused’s evidence, it was flawed in the areas I have identified above. I do not make much of the seeming admissions in the second email, coming after the firm denial in the initial email. The evidence with respect to the spooning causes concern. I do not believe the accused’s evidence with respect to this; it detracts from his credibility. But it is not such as to completely undermine the accused’s evidence.

[75] In conclusion, if the test were to determine which of the two – the complainant or the accused – I have more faith in and whose evidence I prefer, I would have a difficult time deciding. Both were reasonably good witnesses but with the imperfections I have identified above.

[76] But of course the test is not whose evidence I prefer. To apply this test is to erroneously substitute the civil standard of a balance of probabilities for proof beyond a reasonable doubt: see R. v. W.(D.), [1991] 1 S.C.R. 742.

[77] I end where I started. I must be “sure” of the accused’s guilt based on all the evidence. This is a very heavy burden upon the Crown. It will be evident that based on the foregoing, I am not convinced of guilt beyond a reasonable doubt. I am not “sure”. The two charges against the accused will be dismissed. Acquittals are entered.

D.E. HARRIS J. Released: October 1, 2018