CITATION: R. v. M., 2019 ONSC 3071

COURT FILE NO.: CR-18-064

DATE: 2019/05/27

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Pierre Lambert-Bélanger, for the Crown

• and -

D. M.

Michael Venturi, for the Defendant

Defendant

HEARD: April 15 and 16, 2019, followed by written submissions.

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of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcast or transmitted in any manner.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 copy of the decision has been anonymized in order to permit publication.

ellies R.S.J.

REASONS FOR DECISION

OVERVIEW

1Mr. M. is charged with four sexual offences involving one complainant, F. K. The offences are alleged to have taken place in the years 1968 to 1972, when Ms. K. was between the ages of 9 and 14. In those years, Mr. M. was first dating, and then married to, Ms. K.’s sister, now S. T.

2Mr. M. denies under oath that any of the offences took place. The central issue is one of credibility.

FACTS

3Three incidents form the basis of the charges against Mr. M. All three are alleged to have occurred in the Township of Papineau-Cameron, in or near a house occupied by Mr. M. and Ms. T. at the time. The house is located on Highway 17, about nine miles (14 kms) east of the Town of Mattawa.

The “Sandpit Incident”

4According to Ms. K., the first incident happened when she was about 10 or 11 years old. At the time, she was living with her parents in their home, which was located next door to the home of Mr. M. and Ms. T., a home still occupied by Mr. M.

5Between the houses is a driveway or road that leads to a sandpit owned by Mr. M. This first incident is said to have taken place on that road while Ms. K. was a passenger in Mr. M.’s truck. Ms. K. testified that she was getting a ride home from Mr. M. at the time. She said that when Mr. M. pulled into the driveway between the houses, he shut the vehicle off and he grabbed her in a hugging motion. He then removed his penis, grabbed her hand and put it on his penis. She said he wanted her to “jack him off.” She testified that Mr. M. did ejaculate, from which I assume that she did as he wanted. She said that, after the incident ended, she ran into her parents’ house. When she got there, she acted as though nothing had happened.

The “Babysitting Incident”

6The second incident is said to have happened when Ms. K. was approximately 11 or 12 years of age. She testified that she was babysitting at the time. She was not sure if Mr. M. and Ms. T. had one child or two at the time.

7Ms. K. testified that Mr. M. came home and “basically took me straight into the … bedroom off of the living room … tore my clothes off, basically, and proceeded to sexually assault me, and have intercourse”. However, according to Ms. K., the act was interrupted when her sister, Ms. T., came home early. As Ms. T. pulled into the driveway, her car lights shone through the bedroom window. Ms. K. testified that Mr. M. leapt up and, I presume, got dressed or at least pulled his pants up. Ms. K. also got dressed, but had to put her underwear in her pants pocket because she was so pressed for time. When Ms. T. came in, Ms. K. stood there, acting like nothing happened.

The “Park Incident”

8The third and final incident allegedly took place when Ms. K. was 13 or 14 years old. On that occasion, she was again getting a ride, this time from her parents’ home into Mattawa. Ms. K. testified that, after Mr. M. had travelled about one-eighth to one-quarter of a mile (approximately 200 to 400 meters) towards Mattawa, he pulled off the highway into a picnic area and turned his vehicle off. He slid over to her on the bench seat of his truck and undid her pants. Ms. K. testified that Mr. M. succeeded at getting her left leg out of her pants. She said he undid his pants, took his erect penis out, and make her sit forcibly on it. She testified that she put up a fuss, but Mr. M. again managed to ejaculate, although not inside of her.

9Ms. K. testified that she had to get out of the truck in order to get dressed. She said that, after the assault, Mr. M. drove her to Mattawa where he dropped her off and, as she put it, “went merrily on his way.”

10Ms. K. testified that, while there were other “minor” incidents, these three were the “most damaging.”

11The Crown called one other witness: Ms. T. She is 10 years older than Ms. K. She testified that she and Mr. M. had known each other for about four years before they married on June 4, 1969. After their marriage, they lived for about two years on McConnell Street in Mattawa, across from a hotel which later burned down.

12Ms. T. and Mr. M. moved into the home on Highway 17 during the 1972 portion of the winter of 1971-1972. The home belonged to her grandfather who lived with them for a while before the home was transferred into their names in August 1972.

13Ms. T. and Mr. M. had two children. The first was born on December 7, 1969. The second was born on August 14, 1972.

14Ms. T. testified that Ms. K. told her in 1982 or 1983 that Mr. M. had had sex with her. She said that she did not believe Ms. K. but she said she confronted Mr. M. anyway, and he denied it.

15In 1992 or 1993, Ms. T. left Mr. M. She testified that, in about 1995, she again confronted him. This time, she said, he admitted having sex with Ms. K., saying that she “was not a virgin, so that it didn’t matter.”

16Ms. T. testified that she and Mr. M. reconciled briefly from the Christmas of 1997 to the long weekend in September 1998. Thereafter, they separated for good.

Mr. M.'s Evidence

17Mr. M. took the witness stand. He testified that he was never confronted by his former spouse with any such allegations and he never admitted any such thing.

18Mr. M. testified that he did drive Ms. K. and her friend, a young lady named Anita, once to Anita’s parents’ home in Mattawa. However, he did not believe he was ever alone in a vehicle with Ms. K. He testified that, if he was, he certainly never did any of the things that she says he did.

19Mr. M. testified that he did not recall Ms. K. ever babysitting for him and Ms. T. He said that he did recall Ms. K.’s older sister, M., and sometimes his own mother babysitting for them, but not Ms. K. He testified that, if Ms. K. ever babysat, he never had sexual intercourse with her and never touched her in any sexual way.

20Mr. M. denied that any of the allegations were true.

ANALYSIS

21Where an accused testifies and denies that he committed the acts alleged, he must be acquitted if the judge believes him. Even if his evidence is not believed, an accused must be acquitted if his evidence raises a reasonable doubt about his guilt. Even if an accused’s evidence does not raise a reasonable doubt, he must be acquitted if the evidence which the judge does accept raises a reasonable doubt about his guilt: R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

22I believe the accused in this case. In many cases, especially those involving allegations as dated as the ones in this case, about all an accused can do is deny them. Few people accused of crimes alleged to have taken place 40 years ago could remember much apart from the fact that they did not do what is alleged. However, Mr. M. remembered much more than that. He convincingly testified about such things as where he worked, and when, over the course of the past 40 years. His ability to recall details of his work history added credibility to his evidence about important things such as whether he drove Ms. K. alone at any time and whether she ever babysat for him and Ms. T.

23Mr. M.’s evidence about these things was not contradicted by Ms. T. Indeed, Ms. T. was never asked if Ms. K. ever babysat for them or if she ever saw Mr. M. drive Ms. K. alone anywhere. However, during cross-examination, she confirmed that her sister, M., did babysit for them and testified that she never noticed anything untoward in the interaction between Mr. M. and Ms. K.

24Even if I did not believe Mr. M., and even if I was not left with a reasonable doubt by his evidence, I would not be satisfied beyond a reasonable doubt of his guilt by the rest of the evidence.

25Ms. K.’s evidence suffered from a number of frailties. In a general sense, she consistently testified as if she was talking about something that happened not to her, but to victims of sexual assault in general. She frequently referred to Mr. M. as “they” (i.e. the perpetrators) and to herself as “you” (i.e. the victims). For example, in a statement she gave on November 22, 2016 to Constable Gagne she stated, while describing the sandpit incident:

… and they’d take their penis out and you know, they trying to get your hand on there…

26When testifying about that incident at trial and describing what happened when she got back into the house, she testified, “you just go in”, “you act like nothing happened.”

27Ms. K. admitted during cross-examination that she had studied child abuse at university. At times during her evidence, I was left wondering whether she was describing something she had read about, rather than something she had experienced. My concerns in this regard were heightened by the many inconsistencies and improbabilities in her evidence about the events themselves. I will highlight only some of them, beginning with the sandpit incident.

The Sandpit Incident

28I am troubled, firstly, by the location at which this assault is said to have happened. It makes no sense to me that the accused would drive Ms. K. all the way down Highway 17 from Mattawa, past the picnic area at which she testified she was later assaulted in seclusion, only to sexually assault her on the roadway between the two houses in which they each lived. The chances of detection would be much greater there.

29Ms. K.’s trial testimony about what happened during the incident varied in important ways from what she said previously about it. At the preliminary inquiry, she testified that the accused ejaculated into a rag. She did not say that at trial, however. At trial, she gave no evidence as to where the ejaculate ended up. She did testify that Mr. M. was close enough to her that he had to “get off” of her when he finished ejaculating. Based on that evidence, it is quite possible that either or both of them had ejaculate on them. This would have been obvious when Ms. K. entered the home. However, I heard no evidence from Ms. K. about this.

30Ms. K. also said at the preliminary inquiry that Mr. M. never tried to remove her clothes, but she told Constable Gagne that “then they start tearing at your clothes”. Ms. K. also told Constable Gagne that Mr. M. tried to “feel her up”, but did not say that at trial. These are significant inconsistencies, in my view.

31Finally, I did not find Ms. K.'s evidence about what was said during the incident to be very believable. I have difficulty accepting that Ms. K., who was only around 10 years old at the time, would have said things like, "You're married to my sister." Those sound like the words of an adult thwarting a sexual advance, not a 10 year old trying to avoid being forcefully sexually assaulted by a man in his twenties.

The Babysitting Incident

32Ms. K.’s evidence about the babysitting incident is also difficult to accept. For starters, at trial, she said that this was the second incident, but at the preliminary inquiry she said that it was the third. Ordinarily, this would not be particularly significant. However, Ms. K. was quite definite in her evidence at trial as to how she knew the order in which each incident occurred. She said that she knew that the park incident was last incident because it had taken place in the summer before she began high school at the age of 14. The fact that she could make such inconsistent statements about something she was so definite about at trial undermines the reliability, if not the credibility, of the remainder of her evidence.

33Perhaps more importantly, I find it particularly difficult to accept that Ms. T. would not have noticed that something was amiss after she suddenly and unexpectantly interrupted what can aptly be described as the brutal rape of a young girl, a rape that Ms. K. herself called “fiendish”. If I accept the evidence that Ms. K. told Ms. T. about the assaults at some point, the fact that Ms. T. did not believe Ms. K. only reinforces Ms. T.'s evidence that she never noticed any unusual interaction between Ms. K. and Mr. M. I will return to Ms. T.'s evidence in a moment.

The Park Incident

34With respect to the park incident, several aspects of Ms. K.'s evidence cause me concern.

35Ms. K.'s evidence about how Mr. M. managed to get her left leg out of her pants was very vague. Further, her testimony at trial in that respect is contradicted by her testimony at the preliminary inquiry. At the preliminary inquiry, she testified that her pants and underwear were completely removed.

36Ms. K.'s evidence about how Mr. M. managed to get her to sit on his penis was also lacking in any detail. I do not recall her ever saying, for example, what direction she was facing at the time.

37I also struggle with the evidence about what happened after the forced intercourse. Ms. K. said that she believed that Mr. M. ejaculated on her, but not in her. According to her evidence, he still had his pants on and she had her right pant leg and shoe on. Based on this evidence, it seems likely that one or both of them would have ended up with ejaculate on them. However, according to Ms. K.'s evidence, Mr. M. dropped her off in town and went on his merry way. Again, there is no evidence about how this potentially revealing problem was dealt with by either of them.

Other Issues with the Evidence

38The evidence about events surrounding the alleged assaults is also at odds with the evidence about the incidents themselves.

39I find it hard to reconcile Ms. K.'s evidence that her mother was the one suggesting that she ask for or accept rides from Mr. M. with her evidence that her mother told her to avoid certain areas of her house because she noticed that Mr. M. was "glaring" at her, although admittedly her evidence as to when this occurred was vague.

40Less vague is the evidence that, notwithstanding the abuse she says she suffered at his hands and the fact that her sister was no longer married to him, Ms. K. admitted that she would drive Mr. M. around after he lost his license in or about 2012, almost daily. This is inconsistent with her allegations and contradicts her testimony at the preliminary inquiry that it was "torturous" even to see him after the assaults.

Ms. T.'s Evidence

41Finally, I turn to the evidence of Ms. T.

42I do not accept Ms. T.'s evidence that she confronted Mr. M. about sexually assaulting Ms. K., nor that he admitted doing such a thing, for three reasons.

43First, as I have said, I believe Mr. M.

44Second, Ms. T. failed to mention anything about having confronted Mr. M. when she gave a statement to Constable Gagne on November 23, 2016 about these matters. This is a significant omission.

45Finally, it is implausible that Ms. T. would reconcile with Mr. M. in 1997, just two years after he allegedly admitted sexually assaulting her younger sister. Ms. T. testified that she was morally traumatized by Mr. M.'s admission and the thought that someone could do that to a mere child. I cannot accept that Ms. T. would then resume married life with Mr. M. if he had made any such an admission.

CONCLUSION

46For these reasons, I find Mr. M. not guilty of all of the counts on the indictment, and I have endorsed the indictment accordingly.

Ellies R.S.J.

Released: May 27, 2019

CITATION: R. v. M., 2019 ONSC 3071

COURT FILE NO.: CR-18-064

DATE: 2019/05/27

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

D. M.

Defendant

REASONS FOR decision

Ellies R.S.J.