R. v. S.(S.), 2020 ONSC 1807

COURT FILE NO.: CR-19-0000234-0000

DATE: 20200326

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

S.(S.)

Defendant

Brian Moreira, for the Crown

Robert Tomovski, for the Defendant

HEARD: March 2 and 3, 2020

PUBLICATION NOTICE

By court order made under s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it may be published.

CAVANAGH J.

REASONS FOR JUDGMENT

Introduction

1The accused, S.(S.), is charged that between January 1, 2010 and December 31, 2015 he committed sexual assault on the complainant, A.(K.), contrary to s. 271(1) of the Criminal Code. The accused is also charged that he, between January 1, 2010 and December 31, 2015 did, with a part of his body, for a sexual purpose, directly or indirectly, touch the body of the complainant, a person under the age of sixteen, contrary to s. 151 of the Criminal Code.

2The accused denies that he engaged in sexual conduct with the complainant.

3Two witnesses testified at this trial: the complainant and the accused. For the following reasons, when I consider the evidence of the accused in the context of the evidence of the complainant, I am left with reasonable doubt as to whether the accused committed the offences with which he is charged.

4As a result, I find that the accused is not guilty of these offences.

The Evidence

5I refer to the material parts of the evidence at trial below.

(a) Accused comes to live with the complainant and her family

6The complainant was born on […], 1998. She is now 21 years old and lives with her parents and her brother. She is in her fourth year at university.

7The accused is 32 years old. He was born on […], 1988. The accused is ten years older than the complainant. The accused is the complainant’s first cousin on her father’s side.

8The accused arrived in Canada in August 2010 and he came to live with his uncle and his family in November 2010. The accused came with another cousin who also stayed in the townhouse for a few months.

(b) The townhouse and sleeping arrangements

9The townhouse is attached on both sides, with a living room, kitchen and one washroom on the first floor, and stairs to the basement which has an open space, closet, laundry room and bedroom. On the upper level are the complainant’s bedroom, her brother’s bedroom, her parents’ bedroom and a spare bedroom.

10The accused slept in the basement. The cousin who came to Canada with the accused also stayed at the townhouse, sharing the basement bedroom with the accused. This cousin moved out in April 2011.

11In her examination in chief, the complainant was asked about the sleeping arrangements at the townhouse when the accused began to live there. She testified that no one slept in the spare bedroom on the second floor at that time. On cross-examination, she agreed that another cousin slept in the spare bedroom in 2013 for a period of time, she thought a couple of months. She agreed that this cousin was still sleeping there when the accused moved out of the townhouse. The accused testified that this cousin slept in the spare bedroom on the second floor beginning in February 2013 and he was still living there when he moved out in December 2013.

12The complainant testified that she thinks that the accused stayed in the townhouse for a year or two before he moved to his own place downtown. The accused testified that he moved out in December 2013. He gave his key to the townhouse back to his uncle when he moved out.

13The accused worked at a food market from 7:00 a.m. to 4:00 p.m. and, after that, he worked at a nearby restaurant as a dishwasher from 5:00 p.m. to 10:00 or 11:00 p.m.

(c) Alleged sexual encounters in the accused’s basement bedroom

14The complainant was asked to describe how the sexual encounters with the accused started. She testified that on her 13^th birthday in 2011, the accused gave her a card wishing her happy birthday and a cake. The accused testified that he did not give the complainant a cake and a card for her 13^th birthday.

15The complainant testified not long after her birthday, the first incident involving sexual contact with the accused took place. She had come down to the basement bedroom at nighttime, after everyone was asleep. The accused started patting her hair. He was running his fingers through her hair and down her back when he moved her hair to the side of her body and touched her breast. She testified that this touching made her feel uncomfortable. She left right after the incident.

16The complainant testified that the next incident that she recalls was a couple of days or a couple of weeks after the first incident, when the accused kissed her. This was also in the basement, at nighttime, when everyone was asleep. She testified that she went down to the basement. She and the accused were play fighting on the bed. She was lying down and he came closer and kissed her. She described the kiss as “just a peck” on her lips. She started crying and was upset because she did not think that he would do that. This was the first time that a boy had kissed her. She remembers going back upstairs to her room.

17The complainant testified that after the kissing incident, there were a number of separate incidents in which the accused would do small things like lying down on her lap and turn his face toward her vagina. This made her feel uncomfortable. She testified that she was around 13 or 14 when these incidents occurred.

18The complainant testified that she only visited the accused in the basement at nighttime and not during the day.

19The complainant testified that over time, her contacts with the accused involved a number of separate incidents and she felt that she was in a relationship with him. She allowed him to kiss her including with his tongue and he would touch her breasts and put his mouth on her vagina. She was not certain whether this conduct occurred in the basement or upstairs in her room.

20The complainant testified that when the accused returned in the evening after being out at work with her father, he would flick the light switch on the main level which would turn the lights on the main level and the upper level off and on. She testified that this became a signal that he wanted to see her in the basement. She testified that she would go down to see him in the basement often, almost every day.

21The complainant testified that after a while she stopped going to the basement and the accused started to come up to her room. This was after an incident she described when her brother came to her bedroom and she was not there because she was in the basement with the accused. The complainant’s brother called for their parents and they looked for her and found her in the basement. She said she came to the basement to do laundry. After this incident, she was afraid of her parents finding out what she was doing.

(d) Alleged sexual encounters in the complainant’s bedroom

22The complainant testified that after the incident, she no longer went to the basement, but she continued to have sexual encounters with the accused in her bedroom. She was 13 to 14 years old at the time. The complainant testified that these encounters occurred in the nighttime, when everyone was asleep. The accused would come upstairs and open the door to her room and come in. The complainant testified that the accused worked with her father and before they left for work, he would signal with his finger to give her a time when he would come up (by holding up one or two fingers to indicate 1:00 or 2:00 a.m.). The complainant testified that the accused usually left for work around four o’clock p.m. and she would be home from school by that time. Her school was only five minutes away.

23The complainant testified that during this period of time, when she saw the accused in her bedroom, she thought she was in a relationship with him. She thought she would get married to him one day. The complainant testified that the accused would kiss her and touch her on her breasts and put his mouth on her breasts and in her vagina. She testified that she consented to the sexual activities.

24The complainant testified that on one occasion the accused tried to insert his penis into her. This occurred in her bedroom, late at night. She testified that usually the accused was lying on top of her and, on this occasion, he tried to put his penis into her vagina. She testified that she does not remember whether her clothes were off. Usually, he would be on top with clothes on and she would wear at nightgown. The complainant testified that she is not sure whether the accused was using a condom, although she found a piece of a wrapper of a condom in her room. The complainant testified that she told him to stop and, at first, he tried to continue, and she again told him to stop and take it out, and the accused did so. She was 13 to 14 years old at the time of this incident. The complainant did not recall other incidents that involved intercourse.

25The complainant testified that another time, she found a used condom her underwear. She testified that the accused would finger her, and she would go to sleep. On this occasion, the next morning, she noticed the condom in her underwear with semen inside. She did not know what happened or why the condom was in her underwear.

26The complainant testified that she continued to have sexual encounters with the accused after this incident where he would either perform oral sex or he would finger her and suck on her breasts.

27The complainant testified that she had a boyfriend when she was 14, turning 15. The complainant testified that the accused did not like her having a boyfriend and he started becoming overprotective by, for example, coming to her school. She testified that the accused informed her father that she had a boyfriend, knowing that her father would confront her. The complainant testified that she dated her boyfriend all through high school, from ages 14 to 17 or 18, on and off. During this time, the sexual incidents with the accused still occurred. The complainant explained that when she pushed him away, he thought she was just being playful and he continued the sexual conduct, which she allowed. She does not remember when the last encounter took place.

28The complainant agreed that her parents would not allow her to have a boyfriend when she was aged 13 to 14 and she agrees that she did not tell her parents the truth about having a boyfriend. She agreed that her parents found out that she had a boyfriend through the accused, and that this made her upset.

(e) Alleged sexual encounters stopped

29The complainant testified that the sexual encounters with the accused stopped when she was around 17. She testified that it did not feel right to continue the sexual encounters. The complainant testified that while the sexual encounters were taking place, the accused did not live at the townhouse throughout this period and she did not recall when he was living in the townhouse.

30The complainant testified that she ended the sexual encounters when she learned from her cousin’s wife that the accused told her that he comes to see the complainant. The complainant testified that when she found out that the accused had told someone else, she was afraid, and stopped seeing him.

(f) Accused’s daily routine

31The accused testified that when he first moved in to the townhouse, he was studying English in the morning from Monday to Friday. Beginning in January 2011 he started working with his uncle assisting him with cleaning jobs in offices. He and his uncle would go to work together on the bus, and they returned together. The accused started driving them in 2013. They worked from Monday to Friday from 5:00 p.m. to 1:30 p.m. The would leave the townhouse around 4:30 p.m. and return together at 1:30 or 2:00 a.m. On Saturday, they worked extra time.

32The accused testified that when they arrived home, his uncle would go upstairs to have a bath and he would go to the basement to have a bath, and they would then sit together and have a meal in the kitchen, sometimes with the accused’s aunt. The accused testified that he would sometimes telephone his parents, usually on Saturday or Sunday, but occasionally during the week. His uncle would be present for these calls, and, sometimes, his aunt would also be present. After that, the accused would go to bed. On weekends, he would sometimes watch television with his uncle before going to bed. The accused testified that he would wake up around 1:00 or 2:00 in the afternoon.

33The complainant testified that her recollection is that the accused and her father did not come home from work together at the same time.

34The accused testified that in March 2013 his uncle arranged another cleaning job for him that was within walking distance of the townhouse. He would go to this job after he returned with his uncle from the first cleaning job, and, sometimes, his uncle would come to help him.

(g) Accused’s evidence concerning alleged sexual encounters

35The accused testified that he would sometimes see the complainant before he and his uncle left for work. He testified that he did not speak with the complainant alone, although he sometimes had conversations with her when her mother was present. He testified that he knew the complainant’s mother was very strict and did not want her to speak with him alone.

36The accused testified that he never engaged in any sexual activity with the complainant.

(h) Disclosure to police

37The complainant reported the alleged sexual encounters with the accused to the police in February 2018 when she was 19 years old. She testified that this report came after she received a phone call from a man, not the accused, who spoke about her boyfriend and said that he was not a good person for her. She also testified that she saw postings on a Twitter account under the accused’s brother’s name in which there were photographs posted of her at family events which were taken without her knowledge. She believed that the accused arranged to post these photographs. The complainant testified that she felt disturbed by these postings and the phone call, so she went to the police.

38The accused testified that he did not ask anyone to call the complainant or threaten to post pictures of her on social media, and he did not secretly take photographs of her and post them.

Analysis

39In R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, the Supreme Court of Canada articulated the framework for the determination of cases where the accused person testifies or calls evidence. In accordance with this framework, if I accept the accused’s evidence, I must acquit him. Even if I do not accept his evidence, but I am left in reasonable doubt by it, then I must acquit him. Even if I am not left in doubt by his evidence, I must determine whether the Crown has proven his guilt beyond a reasonable doubt based on the evidence that I do accept.

40In my analysis of the evidence, I adhere to the basic principle underlying the instruction in W.(D.) that the burden never shifts from the Crown to prove its case beyond a reasonable doubt. When I consider the evidence of the accused, I do so in the context of my consideration of the evidence of the other witness who testified at this trial, the complainant.

41The accused testified concerning his living arrangements at the townhouse and his daily routine while he was there. He also testified about his living arrangements and daily routine after he moved out of the townhouse. He denied that he did anything sexually to the complainant. On cross-examination, his evidence with respect to these matters was not shaken. There is nothing inherently unbelievable or unreliable about the accused’s testimony, standing on its own. However, the accused’s testimony conflicts directly with the testimony of the complainant on the central issue, that is, whether the accused engaged in sexual acts with the complainant when she was between the ages of 13 and 17. I consider the accused’s evidence in the context of the complainant’s evidence to determine whether, in light of this testimony, the accused’s evidence is not believable or reliable, or whether it does or does not raise a reasonable doubt.

42The complainant’s evidence is that beginning in 2011, when she was 13, until 2015, when she was 17, she had frequent and regular sexual encounters with the accused. These encounters allegedly occurred in the basement bedroom at the townhouse where the accused was sleeping and, later, in the complainant’s bedroom on the second floor of the townhouse. According to the complainant’s testimony, the encounters took place during the time when the accused was living in the townhouse, and they continued after the accused was no longer living there and had his own place. The complainant was asked how often she would go to the accused’s basement apartment to see him, and she responded that it was almost every day. The complainant testified that the sexual encounters continued until she was around 17 years old, but she was not directly asked about the frequency of the encounters in her bedroom, either before or after the accused moved out of the townhouse.

43Crown counsel submits that I should infer that the frequency of the sexual contact with the accused lessened after the accused moved out of the townhouse, when the complainant had a boyfriend, off and on, in high school. I do not agree that for me to draw such an inference would be proper on the evidence. The complainant testified that the sexual encounters with the accused continued after he moved out of the townhouse, even when she had a boyfriend, and she did not testify that they became less frequent.

44I have concerns about the complainant’s evidence because on several occasions in her testimony she appeared to add information which she had not previously disclosed in her examination in chief, when she was confronted with apparent inconsistencies in her evidence. I describe the complainant’s evidence which gives rise to these concerns.

45The complainant was asked in cross-examination about her testimony that the accused flicked the light switch on the ground floor when he returned from work to signal that she should come to see him in his basement bedroom. It was suggested to her in cross-examination that the accused and her father returned from work together and her father would be present when the accused flicked the lights. Counsel for the accused suggested that it was implausible that the accused would flick the lights to signal the complainant when her father was present. The complainant at first disagreed that her father would return from work with the accused. However, she did not explain why they would be returning separately. The complainant disagreed that the accused would flick the lights in her father’s presence, but she conceded that she does not remember the work schedule of her father and the accused. She then agreed that there were times that her father would eat a meal with the accused when they came home, which suggests that, at least on these occasions, they came home from work together. The complainant added that there were times when the accused would come to her bedroom for sexual activity even while her father was still awake, and in the kitchen. She agreed that she had not told the police or anyone else before her cross-examination at trial that the accused would come to her bedroom for sexual activity at times when her father was awake and in the kitchen.

46The evidence that the accused came to the complainant’s bedroom to engage in sexual activity on occasions when her father was awake and in the kitchen is not inconsistent with the evidence that the sexual activity occurred after accused and his uncle returned from work together. However, this evidence, which was given for the first time in cross-examination, was not consistent with the complainant’s unqualified evidence in her examination in chief that the sexual activity occurred when her parents were sleeping.

47The complainant agreed in cross-examination that her bedroom door is directly across the hall, within a few feet, of her parents’ bedroom door, and that they slept with their bedroom door open. Counsel for the accused suggested to the complainant that given the close proximity of the two bedrooms and the complainant’s parents’ open bedroom door, it is improbable that her parents would be unaware of the accused coming and going to and from the complainant’s bedroom, almost nightly, over an extended period of time, to engage in sexual activity. In response, the complainant explained that the accused would close her parents’ bedroom door when he came to see her in her bedroom late at night. She testified there were also times when she closed the door to her parents room, and they would be fast asleep. She agreed that she had not told the police or the Crown about the accused closing her parents’ bedroom door or that she closed her parents’ bedroom door. She agreed that she did not give this evidence at the preliminary inquiry.

48The complainant was cross-examined about her evidence that her parents would be asleep when the sexual encounters took place, and she agreed that at the preliminary inquiry she had testified that she did not see her parents sleeping when the accused was flicking the light switch as a signal. She explained that when she gave this evidence she did not remember that, in fact, she did check to see whether her parents were sleeping when the accused would come to her bedroom.

49Although the complainant testified in her evidence in chief that the accused no longer lived at the townhouse when he moved to his own place, she did not explain how, when he was no longer living there, he would be able to enter the townhouse for the sexual encounters that the complainant testified were continuing. In cross-examination, when she was asked how the accused would do so, the complainant testified that the accused would enter the townhouse through the sliding glass doors in her brother’s bedroom on the second floor, while he was sleeping. The complainant explained that the accused would need to climb a fence to reach the second floor of the townhouse. It was suggested to the complainant that the sliding door would be locked, and access from outside would not be possible. She first responded that the sliding door was always unlocked, and she then testified that it was usually unlocked, and if the accused discovered it was locked after he climbed up, he would climb down and throw an object, an acorn or something, at the complainant’s window to get her attention so she could enter her brother’s bedroom while he was sleeping and unlock the sliding door.

50On cross-examination, the complainant was asked about testimony she gave at the preliminary inquiry, under cross-examination, in which she stated that she had another sexual encounter with the accused in the living room of the townhouse during daytime hours. She agreed that she did not refer to this incident in her examination in chief at trial, or to the police or anyone else, before her testimony under cross-examination at the preliminary inquiry. The complainant responded that her evidence in her examination in chief at trial was focused on the incidents that occurred in the basement and in her bedroom, where the alleged sexual encounters mainly happened.

51The complainant testified about the second floor layout and sleeping arrangements in her examination in chief. She was asked where the accused slept and responded that he slept in the basement bedroom. She was asked whether anyone slept in the spare bedroom on the second floor at the time, and she responded that no one slept in that bedroom at that time. This evidence left the impression that while the sexual activity was ongoing, no one was sleeping in the spare bedroom who may have seen the accused coming to and going from the complainant’s bedroom. This evidence is relevant to the charges against the accused because the presence of another person sleeping on the second floor while the alleged sexual activity was occurring in the complainant’s nearby bedroom, in addition to the presence of complainant’s parents and her brother, may affect the credibility of the complainant’s evidence. However, only on cross-examination did the complainant agree that another cousin stayed with her family for a period of time, a couple of months, including up until the time that the accused moved out. She agreed that this cousin slept in the spare room on the second floor during a period of time when the complainant says the accused was coming to her nearby bedroom almost every night for sexual activity.

52When I consider the evidence of the accused and the complainant as a whole, I remind myself that this is not a credibility contest where I am called upon to decide which witness to believe. The only alternatives are not to accept one witness’ testimony in its entirety and reject the other witness’ testimony in its entirety. I may be unable to decide who to believe.

53The areas in the complainant’s testimony to which I have referred lead me to have concerns about accepting her testimony that the accused had sexual contact with her on an ongoing basis when she was between the ages of 13 and 17. I have these concerns because the fact that the complainant offered additional explanatory evidence only in cross-examination suggests that she may not have been completely forthcoming in her evidence in chief in relation to factual matters when the factual circumstances were presented to her in cross-examination in ways that challenged the credibility of her evidence. In fairness to the complainant, she was not asked directly in her examination in chief to give the explanatory evidence that she gave, for the first time, under cross-examination. Nevertheless, the failure of the complainant to testify in her examination in chief concerning material factual matters that would reasonably affect an assessment of the credibility of her evidence is a factor that influences my assessment of the accused’s evidence, having regard to the complainant’s evidence.

54In my assessment of whether the accused’s evidence considered together with the complainant’s evidence leaves me with reasonable doubt, I take into account the accused’s evidence of his daily routine, that he went to work with the complainant’s father, and they returned together in the early morning hours, and then shared a meal together, before the accused went to bed. This evidence, which was not shaken on cross-examination and which I accept, suggests that it would have been difficult, while the accused was living in the townhouse, for the complainant to come to and return from the accused’s basement bedroom, or for the accused to come to and return from the complainant’s bedroom, in the early morning hours after the accused returned home from work, and on an almost daily basis, without detection by the complainant’s parents, or her brother or, when he was sleeping in the spare room, her cousin. This evidence leads me to question the plausibility of the complainant’s evidence concerning the alleged encounters while the accused was living at the townhouse.

55In addition, the circumstances of alleged sexual activity that the complainant described when the accused was no longer living in the townhouse, involving the accused’s early morning entry through the sliding doors in her brother’s second floor bedroom, after climbing a fence and sometimes after objects were thrown at the complainant’s window to signal her to enter her brother’s bedroom and unlock the sliding doors, all without anyone being awakened or noticing, seem implausible. This is particularly so when the entry as described was not on a small handful of occasions, but, according to the complainant’s evidence, on many occasions continuing over an extended period of time until she was 17 years old.

56Although I have concerns about the complainant’s evidence, I do not make a finding that her allegations are false. However, because of my concerns, and when I consider the accused’s evidence in the context of the complainant’s evidence, I am unable to determine with confidence where the truth lies. The accused is presumed to be innocent, and the burden rests with the Crown to prove that he committed the offences beyond a reasonable doubt. When I consider the evidence given by both witnesses as a whole, I am left with a reasonable doubt as to whether the accused committed the offences with which he is charged.

Disposition

57For these reasons, I find the accused not guilty of the offences with which he is charged.

Cavanagh J.