COURT FILE NO.: CR-18-3-549
DATE: 20190912
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
K. B.
Anita Kocula, for the Crown
Kristin Bailey, for the accused
HEARD: July 8-10, 2019
P.J. Monahan J.
[1] KB is charged with having sexually assaulted SF on four separate occasions between December 18 and 21, 2017, contrary to s. 271 of the Criminal Code.[^1] He is also charged with having unlawfully confined SF between December 18 and 21, 2017, contrary to s. 279 (2) of the Criminal Code.
[2] For the reasons that follow, I find that the Crown has proven beyond a reasonable doubt that KB sexually assaulted SF on at least four occasions between December 18 and 21, 2017. Accordingly I find KB guilty of the four counts of sexual assault. However I am not persuaded beyond a reasonable doubt that he unlawfully confined her during that period of time and I find him not guilty of the charge of unlawful confinement.
Evidence
[3] The Crown’s case consisted of the testimony of SF and her mother AF. SF has an intellectual disability and testified by CCTV in accordance with s. 486.2 (1) of the Criminal Code. The parties also prepared and submitted an agreed statement of facts (“ASF”). A video of SF that was recorded in a police scout car as she was being transported back to her mother’s residence in the early morning hours of December 22, 2017 was also tendered as an exhibit.
[4] KB did not tender any evidence.
a. SF’s circumstances
[5] Although SF is 26 years old, she has the intellectual capacity of a much younger person. Her mother, AF, described the challenges SF faces on a daily basis. AF testified that SF is able to read at what AF perceives to be a grade 1 or 2 level. SF can write familiar words but cannot write an essay. SF attended special schools throughout her primary and secondary education and succeeded in graduating from high school when she was 21 years old. During this time she was picked up and dropped off at her home by school bus.
[6] Since completing high school, SF has participated in an adult training program at a community college. She is able to travel to and from the program by public transit, since she is only required to take a single bus to get to the program. AF went with SF on the bus for a week in order to teach her the route.
[7] AF indicated that SF has limited fine motor skills. SF has difficulty opening a can of soda or a bottle of shampoo. She is unable to prepare her own meals or to cut her fingernails. She does not appreciate the value of money and is more comfortable playing with children than with adults.
[8] AF testified that SF is suggestible and can be easily influenced. However, AF indicated that SF is always very open and honest and never lies. They communicate regularly each day by phone or text. SF knows where she lives. She has a cellphone, which she loves, and she knows her own cellphone number as well as her mother’s cellphone number.
[9] It was agreed by Crown and defence that SF’s evidence should be treated as that of a child witness.
b. SF goes missing
[10] At approximately 6:30 PM on December 18, 2017, AF and SF went shopping at a local grocery store. AF noticed that SF had some new and unfamiliar telephone numbers on her cell phone, which AF assumed SF had found on social media. AF was concerned about the possibility of SF being taken advantage of by these unknown persons. She required SF to hand over her cell phone, intending to later delete these unknown telephone numbers.
[11] SF was extremely upset with having her phone taken away. Unbeknownst to AF, SF left the store and went to the Dundas West subway station (which was nearby), where she boarded the eastbound subway. She took the subway to Kennedy Station, where she got off and boarded the 86 bus.
[12] AF eventually noticed that SF was no longer in the store. After searching unsuccessfully in the nearby area, she called the police and reported SF missing.
c. SF meets KB and goes to his residence
[13] SF met KB on the 86 bus on the evening of December 18, 2017. They were not known to each other prior to that date. SF testified that she had taken the 86 bus intending to go to her aunt’s house. However she was unsure of exactly where her aunt lived and had become lost.
[14] SF testified that KB, who was also a passenger on the 86 bus, began asking her “personal questions”. KB asked where her parents were. She told him they were in Africa. He also asked her if she had been bullied. She testified that she told him in her religion you shouldn’t ask personal questions.
[15] Although the precise details of the interaction on the 86 bus are not entirely clear, it is agreed that KB and SF got off the bus together and walked to KB’s residence.
d. SF’s evidence relating to sexual assaults and unlawful confinement
[16] SF testified that once they arrived at KB’s house, KB gave her a hamburger. He then instructed her to have a shower. SF testified that KB got into the shower with her. They were both naked. SF stated that KB put his “private part” (which she identified as his penis) through her “private part” (which she identified as her vagina) and that KB hugged her. SF testified that she told KB to stop as this was against her religion. However, SF said that KB did not listen and that his “saliva” went through to her private part.
[17] SF remained at KB’s residence for the next three days. SF testified that each morning KB left early for work. He would leave her in the bedroom and close the bedroom door. SF testified that she was unable to open the bedroom door and would remain there throughout the day. SF testified that when KB returned late at night he was always drunk.
[18] SF testified that each evening KB would force her to have a shower with him where they were both naked and where KB would touch her with his private part. SF also testified that KB would “do sex to her” in the bedroom. Although SF was wearing clothing while on the bed, KB would be naked and would lie on top of her. SF testified that KB would put his private part through her private part. He also forced her to put his private part in her mouth and to swallow his “saliva”. Although generally she was lying on her back while in bed, on one occasion, KB forced SF to lie on her stomach and touched her “pocket”, which SF indicated was her bum. SF also testified that KB sucked or bit her “boobs”.
[19] SF testified that these sexual assaults took place on each of the four days that she was at KB’s residence. SF testified that she told KB that she was Muslim and that this behaviour was against her religion but that he would not listen to her.
[20] SF also testified that KB would yell at her and call her names such as “fucking bitch”, “retarded”, and tell her she was ugly and that no one liked her. He also choked her, bit her on the arm and face, pushed her down onto the floor in the kitchen, and threatened her with a knife. SF also testified that KB forced her to eat “poison candy”, which SF described as being soft candy with a fish shape.
e. SF is located and returned home by police
[21] Following SF’s disappearance on the evening of December 18, 2017, the police and AF (along with family and friends) had been searching frantically for her. Eventually, a local television station broadcast a missing person’s report with SF’s picture. SF testified that when KB returned home on Thursday evening he had seen this broadcast. KB was angry over the fact that SF had not told him that she was missing. KB threw his cell phone at SF and went to a local convenience store.
[22] SF used KB’s cell phone to call her uncle. She did not disclose any assault or sexual assault and advised him that she was at home. The uncle contacted the police, who in turn called the telephone number from which SF had called her uncle. SF answered the phone and gave the phone to KB (who by this time had returned home from the convenience store). KB provided the police with his address.
[23] Police attended at KB’s residence, picked up SF and drove her home. The in-car camera in the police scout car recorded an interaction between the police officers and SF on the way home, shortly before 3 AM on December 22, 2017. The police officers asked SF why she had not called her mother. She stated that she was too scared. The police officers asked if she was scared of her mother. SF replied that she was “just mad, I had no money”.
[24] AF was tremendously relieved to have SF back home after she had been missing for almost four days. AF’s niece (the “niece”), who was at AF’s house at the time, offered to help SF have a shower and get cleaned up. As AF had been unable to sleep for days and was exhausted, she went to bed.
f. SF reports sexual assaults
[25] The niece was suspicious as to whether something untoward had occurred between KB and SF over the four days while she had been with him. While the niece was assisting SF with her shower, she asked SF whether anything had happened while she had been at KB’s residence. SF then reported to the niece the details of the various sexual assaults.
[26] The niece woke AF up and reported what she had been told by SF. AF was shocked and extremely distressed, but didn’t want to know the details of the sexual assaults. The niece then called police and took SF to the hospital for a Sexual Assault Examination. This included an examination of her body for any injuries. No injuries of any kind were reported or observed by the nurse conducting the examination.
[27] A cut out from the lower front panel of SF’s underwear was submitted to the Centre of Forensic Science. This was the underwear that SF had been wearing from December 18, 2017 to December 21, 2017. A mixed sample of DNA was found. The majority contained female DNA. The minority was a single male profile. The source of the DNA (e.g. saliva, blood, skin cells) was not able to be determined. The small amount of male DNA did not allow for standard testing and instead the Y-STR profile was created. The Y-STR DNA results are estimated to be 1080 times more likely if they originate from KB than if they originate from an unknown male, unrelated to him.
[28] At trial, KB acknowledged through his counsel that the male DNA found on SF’s underwear was his.
[29] After SF returned home, two police officers attended and spoke with her. Subsequently, SF and the niece attended at the police station where SF made a statement. KB was subsequently arrested and charged.
Applicable Legal Principles
a. The Presumption of Innocence and Proof Beyond a Reasonable Doubt
[30] The presumption of innocence is a cornerstone of our criminal justice system, guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms. The presumption of innocence, and along with it the standard of proof beyond a reasonable doubt, are important and necessary safeguards to ensure that no innocent person is convicted of an offence and wrongfully deprived of his or her liberty.
[31] Thus, KB is presumed innocent of the charges brought against him and this presumption remains with him unless and until the Crown proves his guilt beyond a reasonable doubt. This is a heavy burden that remains on the Crown and never shifts.
[32] KB did not testify and the defence tendered no evidence. There is no onus on an accused to prove his innocence by going into the witness box or by tendering evidence. It is up to the Crown to prove an accused’s guilt beyond a reasonable doubt, not the other way around.
[33] I remind myself of the meaning of the phrase proof beyond a reasonable doubt. A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense, one that arises logically from the evidence or absence of evidence. It is not enough for me to believe that KB is probably or likely guilty. In that circumstance I am required to give the benefit of the doubt to KB and acquit him because the Crown would have failed to satisfy me of his guilt beyond a reasonable doubt.
[34] I also recognize that proof beyond a reasonable doubt is not proof to an absolute certainty. But the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. I recognize that I must consider all of the evidence and be sure that KB committed the offences with which he is charged before I can be satisfied beyond a reasonable doubt of his guilt.
b. Assessing credibility
[35] The Crown’s case consists largely of the evidence of the complainant SF. Thus to reach a verdict in this case I must assess her credibility and reliability.
[36] As noted above, both parties agree that SF’s evidence should be considered in accordance with the standard applicable to children. In assessing the testimony of a child witness, courts should take a common sense approach and not impose the same exacting standard as it does in the case of adults.[^2] As Wilson J. recognized in R. v. B.(G.), “[w]hile children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.”[^3] Flaws or even contradictions in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult. The particular perspectives of children may affect their recollection of events and any inconsistencies should be assessed in context.[^4]
[37] That said, the Crown is still required to prove the guilt of the accused on the basis of proof beyond a reasonable doubt. Where there are significant inconsistencies in a child’s evidence, or where it is contradicted by other evidence on the record, it is essential that the credibility and reliability of the complainant’s evidence be tested in light of all the other evidence presented. In particular, it would be improper to accept the testimony of a child complainant based on their apparent honesty and demeanour in the witness box, without assessing the reliability of the evidence in light of improbabilities in the account provided as well as other contradictory evidence.[^5] The trier of fact should carefully assess the evidence as a whole before concluding that guilt has been established.
[38] More generally, I would note that a witness’s demeanour when testifying has limited value in assessing credibility. As Schreck J. noted in R. v. C. C., there is a growing body of appellate authority signalling the need for caution in considering demeanour as an indicator of credibility.[^6] Accordingly, I have placed limited weight on SF’s demeanour in assessing her credibility.
c. Avoiding Myths and Stereotypes in Sexual Assault Cases
[39] The Supreme Court of Canada has repeatedly observed that relying on myths and stereotypes in assessing the credibility of sexual assault complainants invokes impermissible reasoning. In particular, no negative inference should be drawn regarding a complainant’s credibility that is based on assumptions about how a victim of sexual assault is supposed to react to the assault. This includes the now discredited belief that a sexual assault victim is expected to make a timely complaint. As the Supreme Court of Canada noted in R. v. D.(D.):[^7]
[T]here is no inviolable rule how people who are the victims of trauma like a sexual assault will behave.… Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.
d. Elements of the offence of Sexual Assault
[40] The actus reus of the offence of sexual assault consists generally of the following three elements: (i) touching that constitutes an assault within the definition of s. 265(1)(a) of the Criminal Code; (ii) the touching was of a sexual nature or occurred in sexual circumstances; and (iii) there was a lack of consent to the touching from the victim.[^8] The first two of these elements are to be assessed objectively. However, proof of the third element – the absence of consent on the part of the complainant – is assessed subjectively and determined by reference to the complainant’s internal state of mind toward the touching at the time it occurred.[^9]
[41] Establishing the mens rea of sexual assault requires proof of the following two elements: (i) that the accused touched the complainant intentionally; and (ii) that the accused was aware of, or wilfully blind or reckless to, the complainant’s lack of consent to the sexual act.
e. Elements of the offence of unlawful confinement
[42] The actus reus of the offence of unlawful confinement requires proof of: (i) a confinement; (ii) the confinement is without lawful authority; and (iii) a lack of consent by the complainant to the confinement. Proof of the first two elements is objective; the third, subjective.[^10] In R. v. Gratton, Cory J.A. (as he then was) approved the following definition of unlawful confinement:
… physical restraint, contrary to the wishes of the person restrained, but to which the victim submits unwillingly, thereby depriving the person of his or her liberty to move from one place to another, is required in order to constitute forcible or unlawful confinement. Such confinement need not be by way of physical application of bindings.[^11]
[43] The mens rea of the offence of unlawful confinement requires proof of the intent to confine the complainant against their will.
Analysis: Sexual Assaults
[44] Although KB did not testify, in closing argument his counsel took the position that the assaults described by SF simply did not occur. In other words, KB’s defence was that he had not unlawfully touched SF during the four days she was at his residence, nor had he unlawfully confined her there against her will.
[45] Significantly, KB does not suggest that he believed SF consented to sexual activity. I note, in any event, that there is no basis in the record for any such claims or arguments regarding consent. In her testimony, SF maintained that she had not agreed to sexual activity with KB. She stated that she repeatedly told KB that these activities were against her religion, but that KB had not listened and had persisted in the sexual activity despite her protestations.
[46] Nor is there any question as to the sexual nature of the alleged touching. SF testified that KB had penetrated her with his penis daily, both in the shower as well as in the bedroom, and also forced her to perform oral sex. Thus, assuming I find that the assaults did occur, there is no doubt that they were sexual in nature.
[47] In short, the central issue with respect to the four counts of sexual assault is whether the Crown has proven beyond a reasonable doubt that the assaults as described by SF actually occurred. The determination of this issue will turn largely on whether I accept SF’s evidence regarding the assaults.
a. Assessing SF’s evidence
[48] Despite SF’s limited intellectual capacities, she was able to testify in a direct and straightforward manner. I would observe that there were certain challenges associated with SF’s testimony. For example, SF might initially agree with a suggestion that was put to her by counsel, particularly in cross-examination. However when the point was pursued or discussed further, she would frequently disagree with the suggestion that had been put to her and clarify what she believed to have happened. I draw no adverse inference from these clarifications, particularly in light of my earlier comments with respect to the appropriate standard to be applied in assessing the credibility of a child witness.
[49] I would also note that on a number of occasions, SF was unable to initially recall certain events that had happened. However when reminded of what she had told the police in her initial statement, or her testimony at the preliminary inquiry, she was able to remember what had occurred. Again, I draw no adverse inference from these portions of her evidence since, in my view, it would be unreasonable to expect someone with SF’s intellectual capabilities to be able to immediately recall all the details of events that had occurred some 18 months ago.
[50] At certain points in her testimony, it was pointed out that her evidence at trial differed in some way from what she might have said earlier. She was able to clarify or offer an explanation for the apparent inconsistency. For example, at trial she testified that she and KB had had a shower on each of the four days that she was there. It was pointed out to her that in her original statement to police on December 23, 2017 the following exchange had occurred:
Officer: Did you, did you take a shower with him?
SF: Mm-hmm.
Officer: When, what day did that happen?
SF: Four days.
Officer: Every day? All four days?
SF: It was just, it was just Wednesday.
Officer: Only on Wednesday you took a shower with him?
SF: Mm-hmm.
[51] Counsel for KB suggested in cross-examination that her December 23, 2017 statement to police that she had only showered with KB on Wednesday was inconsistent with her evidence at trial. SF responded by maintaining that she had in fact taken a shower with KB on each of the four days she was at his residence.
[52] I would observe that SF’s original statement to the police was in fact somewhat unclear on this point. She says initially that she had a shower with KB on each of four days she was there. It was only when the officers seemed to express some doubt on the point that she changes her answer and says it was just on Wednesday. She then agrees with the officer’s statement that the only day she had a shower with KB was on Wednesday.
[53] At trial, despite being questioned specifically on the point, SF maintained that she had taken a shower with KB every day, which is exactly what she initially told the officer on December 23, 2017. Given the ambiguity in her earlier statement to the police, I do not attach any great significance to this apparent inconsistency.
[54] While recognizing various challenges associated with SF’s testimony, in general terms she never wavered in her evidence regarding the sexual assaults, nor was her evidence undermined in any meaningful way.
[55] Nevertheless, in closing argument, KB’s counsel raised various concerns regarding the credibility and/or reliability of SF’s testimony, arguing that it would be dangerous to convict KB on the basis of her evidence. I consider these concerns in turn.
b. Alleged inconsistencies
[56] Counsel for KB pointed out in closing argument that SF testified that KB had penetrated her with his penis in the bedroom, and also sucked her “boobs”, despite the fact that she was wearing her clothes. It was suggested that this evidence was inherently implausible since, if SF was fully clothed it would simply not have been possible for these activities to have occurred.
[57] I do not attach any particular significance to this apparent inconsistency. SF was not asked to specifically explain how it was that KB could have penetrated her, or sucked her “boobs”, if she had been fully clothed. Nor was it suggested to her that her evidence was internally contradictory. She was simply asked if she was wearing her clothing in the bedroom while KB was lying on top of her. In the absence of having specifically explored this alleged inconsistency or contradiction with SF in cross-examination, I would not attach any weight to it.
[58] Counsel for KB also pointed out that although SF testified that she had been bitten by KB on the face, and that this had caused bruising, no such bruises were observed during the course of the Sexual Assault Examination. Clearly, SF’s recollection about having been bruised on the face was mistaken. But the absence of bruising does not negate the possibility that SF was bitten on the face by KB. I would also note that SF did not raise the issue of bruises on her face independently. It was only in response to questions on cross-examination that she stated she had suffered bruises on her face. Moreover, the alleged biting of SF’s face did not occur during a sexual assault. As such, the issue of whether SF suffered bruises from having been bitten by KB is a secondary matter which does not relate directly to the alleged sexual assaults.
[59] In general terms, I would not attach any significant weight to the inconsistencies identified by defence counsel. For the reasons described earlier, it would be unfair and inappropriate to assess the credibility and reliability of SF’s evidence by the exacting standard that would normally apply to an adult witness. Taking into account her limited intellectual capacity, I find that any inconsistencies in SF’s evidence were minor and did not undermine the credibility or reliability of her core allegations of sexual assault.
c. Alleged “tainting” of SF’s evidence by the niece
[60] Counsel for KB points out that when SF was initially returned home, she did not mention anything about having been sexually assaulted. It was only when SF was specifically questioned by the niece, who was skeptical that nothing had occurred over the four days when she had been with KB, that SF told the niece about having been assaulted. Defence counsel argues that given SF’s suggestibility, she fabricated a story about having been sexually assaulted in response to the niece’s suggestion to that effect.
[61] I find this argument to be speculative and without foundation in the record. There is no evidence that SF’s account of the sexual assaults was based on a suggestion made by the niece. Nor did the defence call the niece as a witness to substantiate any such claim. Moreover, although the niece attended the initial police interview with SF on December 23, 2017, the niece took no part in the discussion and did not prompt SF or suggest to her that any assaults occurred. SF’s account of the assaults, which is detailed and spontaneous, is made entirely independently and without any support or encouragement from the niece.
[62] I would also observe, consistent with R. v. D. (D.), that no adverse inference should be drawn from the fact that SF did not initially mention the assaults when she was reunited with her mother on December 22, 2017. In fact, it is entirely understandable that SF might have been reluctant to have disclosed these assaults to her mother. In her testimony, AF indicated that she was shocked and disturbed when she learned of the assaults and that she did not want to be told any of the details.
[63] SF was very close to the niece (i.e. SF’s cousin) and trusted her. I find it plausible that SF would have chosen to disclose the sexual assaults to her cousin at the first available opportunity, rather than to her mother.
d. SF’s inability to recall an earlier incident where she had gone missing
[64] AF indicated that in October 2017, SF had gone missing for an overnight. Although the details of this incident are not entirely clear, SF apparently had gone for a coffee with a male acquaintance whom she had met in a training program. Rather than return home, SF and this male acquaintance had spent the night outside at a nearby carwash. SF and this male acquaintance were located the next morning by a neighbour, who brought SF home. SF did not appear to have been harmed by the male acquaintance.
[65] When counsel for KB attempted to question SF about this incident, SF indicated that she did not recall anything about it. Defence counsel suggested that SF was being disingenuous in claiming not to remember the incident and that this called into question her overall credibility.
[66] I find no merit to this suggestion. Her inability to recall this particular incident was not unusual or exceptional. In fact, at numerous times in the course of her testimony, SF was unable to recall certain events. I find that this was attributable to her limited intellectual capacity rather than to any attempt to dissemble or avoid difficult questions.
e. SF’s account of the assaults is oddly repetitive
[67] Counsel for KB raises concerns over the fact that SF’s account of what occurred over the four days she spent with KB is “oddly repetitive”. SF testified that she had a shower with KB every day, and that he assaulted her in the bedroom each day. She also stated that he fed her a hamburger and “poison candy” each day.
[68] In her cross-examination, counsel for KB attempted to take SF through each of the four days she had spent with KB, and to recount the specific events of each day. Given SF’s limited intellectual capacity, and the fact that these events occurred 18 months ago, I do not think it reasonable to expect SF to provide a blow-by-blow account of what had occurred during each particular day she spent with KB. It is only natural that her recollection of these events would have faded somewhat, making it difficult for her to distinguish the events of one day as distinct from another. What remained consistent throughout her evidence were her core allegations about having been sexually assaulted by KB each day after he arrived home from work. I find nothing odd or unusual in these claims.
f. SF was not being held against her will
[69] Counsel for KB points out that it is unclear whether SF wished to leave KB’s residence, despite having the opportunity to do so. For example, SF testified that at one point KB told her she should go to a shelter. SF did not take up the suggestion but could not explain why. KB’s counsel argued that this indicated that KB was not holding SF against her will.
[70] SF also acknowledged in her evidence that KB did not learn that SF’s family was looking for her until he heard the news report on a local television station on December 21, 2017. SF had told KB that her parents were in Africa. KB was angry with SF when he found out that SF had been reported missing. KB immediately provided SF with his cell phone and told her to call her family or the police.
[71] Despite the fact that SF knew her mother’s telephone number, she used KB’s cell phone to call her uncle rather than her mother. Moreover, when she spoke with her uncle she told him that she was already at home. She did not ask him to come and get her. It was only when her uncle contacted the police, who subsequently called back and spoke with KB, that SF was located and returned home.
[72] During the police ride, she said she had not called her mother either because she was afraid to do so, or because she was “so mad” at her mother and had no money. SF did not explain what she meant by the statement that she was “afraid” to call her mother.
[73] As is discussed in more detail below, in my view this evidence does raise some questions with respect to whether SF was being unlawfully confined by KB. However the offence of unlawful confinement is separate and distinct from that of sexual assault. The Crown need not prove that the confinement was unlawful in order to establish the essential elements of the offence of sexual assault.
[74] There is no hard and fast rule as to how a victim of a sexual assault will react to the assault. In this sense, KB may well have been assaulting SF even if she was not attempting to leave the apartment.
[75] SF maintained throughout her evidence that KB was engaging in sexual activity with her without her consent. I do not find that SF’s credibility on the issue of the sexual assaults is undermined or called into question by the possibility that SF may not have been attempting to leave KB’s apartment.
g. Conclusion on Sexual Assaults
[76] Based on the totality of the evidence, I find that the Crown has proven beyond a reasonable doubt that KB sexually assaulted SF on each of the days while she was at his apartment. First, and most importantly, I accept SF’s evidence as to the nature of the assaults and the fact that she did not consent to sexual activity with KB. Despite minor inconsistencies in her evidence, as described above, on the whole her evidence was credible and consistent. SF never wavered in her evidence regarding the sexual assaults, nor was her evidence undermined in any meaningful way.
[77] Moreover, SF’s account of the sexual assaults is supported by the surrounding circumstances. SF is a vulnerable adult with limited intellectual capacity. She had no phone, no money and no way of contacting her family. Her vulnerability and dependency would have been apparent to KB when he encountered SF on the bus. In fact, SF testified that when she met KB on the bus he began asking her personal questions such as where her parents were. I infer from this that KB was attempting to ascertain whether any members of SF’s family would come looking for her if he brought her back to his apartment.
[78] I also find it telling that when KB became aware of the fact that SF’s family was looking for her, he became upset. This suggests that KB had assumed that he could keep SF at his apartment indefinitely without arousing suspicion or inquiries from her family members, and became angry when he realized that this was not the case.
[79] Also significant is the fact that KB’s DNA was found on SF’s underwear. This tends to support a finding that SF was sexually assaulted by KB.
[80] I further find that there is no innocent explanation for the fact that KB kept SF, a vulnerable adult, at his apartment for four days without telling anyone. Had KB brought SF back to his apartment because he wanted to assist her in some way, he would have made some efforts to contact her family, or others who could have offered assistance. Yet he made no such efforts and, instead, kept her at his apartment without telling anyone.
[81] Based on the totality of the evidence, I have no doubt that KB sexually assaulted SF on each of the four days that he kept her at his apartment. I therefore find KB guilty of the four counts of sexual assault.
Unlawful Confinement
[82] As discussed above, the offence of unlawful confinement requires a confinement as well as a lack of consent by the complainant to the confinement.
[83] In this case, the Crown argued that SF had been confined to the bedroom of KB’s apartment since, when he left for work in the morning, he would leave SF in the bedroom and close the bedroom door. SF testified that she was unable to open the bedroom door and would remain there throughout the day.
[84] There is no evidence to suggest that there was a lock on the bedroom door. However, the Crown pointed to AF’s evidence to the effect that SF has limited fine motor skills. This includes difficulty opening a can of soda or a bottle of shampoo.
[85] While I accept that SF has limited fine motor skills, AF did not suggest that SF is unable to open an unlocked bedroom door. Moreover, SF testified that KB would leave in the morning and be gone all day. It stands to reason that SF would have found it necessary to access the bathroom in the apartment and this would have required her to leave the bedroom at some points during the day. I assume she must have done so.
[86] I am therefor left with a reasonable doubt as to whether SF was unlawfully confined to KB’s bedroom when KB was absent from the apartment.
[87] Alternatively, it might be suggested that KB confined SF to the apartment when he left for work each day and locked the apartment’s entry door. However SF did not indicate that she wished to or had attempted to exit the apartment during the day while KB was at work. I also find it significant that when SF was given access to KB’s cell phone on the Thursday, she did not attempt to call her mother, even though she knew her mother’s phone number. Instead she called her uncle and told him that she was already at home. She did not express any desire to be picked up and taken home. Moreover, during the ride in the police scout car, SF indicated that she did not attempt to call her mother because she was afraid to do so, or was “so mad” at her mother. This suggests a choice on her part not to reach out to her mother.
[88] I have also given consideration of the possibility that SF was simply not capable of giving her consent to being confined to KB’s apartment. However, no evidence was led on this point and the Crown did not take the position that SF was incapable of giving her consent to remain in the apartment.
[89] As I noted earlier, even in circumstances where it is likely or probable that an accused is guilty of a particular offence, that does not amount to proof beyond a reasonable doubt. On balance, I am not persuaded that the Crown has proven beyond a reasonable doubt that KB was confining SF in his apartment against her will. I therefore find him not guilty of this count in the indictment.
Disposition
[90] I find KB guilty of the four counts of sexual assault of SF (counts 1 to 4 of the indictment) and not guilty of unlawfully confining SF (count 5 of the indictment).
P. J. Monahan J.
Released: September 12, 2019
COURT FILE NO.: CR-18-3-549
DATE: 20190912
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
K. B.
REASONS FOR JUDGMENT
P. J. Monahan J.
Released: September 12, 2019
[^1]: R.S.C. 1985, c. C-46. [^2]: R. v. B. (G.), [1990] 2 SCR 30, at para. 48. [^3]: Ibid. [^4]: R. v. W. (R.), [1992] 2 SCR 122, at paras. 24 to 26. [^5]: R. v. Gostick, (1999), 121 O. A. C. 355 (Ont. C.A.), at paras. 14 to 19. [^6]: R. v. C. C., 2018 ONSC 1262, at paras. 61 to 62. [^7]: 2000 SCC 43, [2000] 2 S.C.R. 275 at para. 65. [^8]: R. v. Ewanchuk, [1999] 1 SCR 330, at paras. 25 – 26. [^9]: R. v. Litchfield, [1993] 4 SCR 333; R. v. Ewanchuk, at paras. 25 to 26. [^10]: R. v. Niedermeier, 2005 BCCA 15, at para. 48. [^11]: R. v. Gratton (1985), 18 CCC (3rd) 462 (Ont. C.A.), at page 473.