Her Majesty the Queen v. D.K., 2020 ONSC 3487

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-18-0444

DATE: June 3, 2020

B E T W E E N:

HER MAJESTY THE QUEEN

Teresa James for Her Majesty the Queen

• and -

D. K.

Bruce Engel for the Accused

Accused

HEARD: December 2, 3, 4, 2019

PUBLICATION RESTRICTION NOTICE

By court order made under subsection 486.4(1) of the Criminal Code, no information that might identify the person described in this judgment as the complainant shall be published, broadcast or transmitted in any manner. This judgment complies with this restriction so that it can be published.

REASONS FOR DECISION

James J.

Orally:

Introduction

1D.K. is charged on a five count indictment that accuses him of committing several sexual offences against M.K.

2M.K., who I will refer to as the complainant, is 31 years old. She currently lives with her partner and 10-year-old son. She is employed as a carpenter.

3For the reasons that follow, I have determined that D.K.’s guilt has not been proven beyond a reasonable doubt.

4The complainant’s allegations against the accused date back to when she was about 9 or 10 years old and continued for several years, until she was about 15 or 16 years old. There is considerable uncertainty as to her precise age when various incidents are said to have occurred.

5Other members of the complainant’s family are marginally involved in the allegations. Her mother, B.P., was married to the complainant’s father until they separated in about 2000. The complainant lived with her mother following her parent’s separation.

6The complainant’s father, Da.K., currently lives in Alberta where he runs a trucking company. When the family lived together on Highway 132 outside of Renfrew, Ontario, Mr. Da.K worked as a long-haul truck driver.

7Ma.K. is the complainant’s older brother. Sometimes the complainant would go 4 wheeling with Ma.K. Ma.K did not provide any evidence at the trial.

8The accused is 53 years old. He is married and has a teenage daughter. He has known the complainant since she was a child. He currently works as a crane operator and was previously employed as a long hauler trucker. Mr. Da.K. and the accused were friends and the accused was a frequent visitor at the complainant’s residence. At one point, Da.K. and the accused worked together for the same trucking company.

9The complainant’s residence on Hwy. 132 consisted of a five-bedroom house and a garage that also served as a woodworking shop where Mr. Da.K. would often socialize with his friends, including the accused.

Evidence of the Complainant

10The first incident described by the complainant took place when her family was living together on Highway 132. She said she was about 9 or 10 years old. She said the accused would stop by their home, sometimes when no adults were present. She thought the accused had stopped to see her father. Since he was a friend of the family, she let him in. She said that the accused tried to touch her inappropriately and referenced her chest and the area below her waist. She recalls being in the dining room when the accused was present and he chased her around the dining room table. This happened more than once; maybe 10 to 15 times. She recalled the accused making a sound that she described as an awkward giggle when the running around the table incidents occurred. She said she tried to laugh along with him but felt awkward. She said these incidents continued from about age 9 until she moved with her mother to an apartment on Robert Drive when she was 11 or 12 years old.

11She recalls an incident when the accused actually touched her in a sexual way. She said she was home sick on her birthday watching TV downstairs in the rec room. No one else was home when the accused came to the house. She recalled that she was sitting on the couch. She said the accused reached towards her chest and brushed against it. He also reached towards her vaginal area. The touching was brief. She described it as “just a brush.” She was wearing clothes and I understood from her evidence that any touching that may have occurred during this incident took place over her clothing.

12The complainant thinks she was between the ages of 10 and 12 at the time. She recalled that the accused tried to kiss her and she remembers the feel of his whiskers on her face.

13After the accused left he returned with some food from Wendy’s and a yellow Nike shirt as birthday gifts. She let him into the house again. This time he stood inside the front door and did not enter the interior of the house. They had a brief conversation as he gave her the gifts. He did not attempt to touch her when he came back to the house.

14The next incident described by the complainant took place when they were on an ATV trip on what was described as the K&P trail. The complainant was still living with her family in the house on Highway 132, so this would have taken place prior to her parents’ separation. There was an access point to the trail near the complainant’s residence. On the day in question, the accused brought his ATV to the complainant’s home to go four wheeling with Ma.K. and his friends. The complainant rode with the accused on his ATV. When they set out, the complainant drove the ATV and the accused was seated behind her. They were the last ones in the line of ATVs. It is not clear how many ATVs were in the group.

15The complainant said that as they drove along the trail the accused reached under her shirt and briefly contacted her breasts then pulled his hand away. She said this happened more than once, maybe 5 to 10 times. She said there was skin to skin contact. In addition, she said that the accused reached under her pants and had brief skin to skin contact with her vagina. Again, this happened more than once; maybe 5 to 10 times. She said she told the accused to stop but the ATVs were loud and she did not hear the accused say anything in response.

16She said that the outing consisted of a round trip to the end of the trail near Calabogie. They made periodic stops while on route.

17The complainant does not recall if any touching occurred on the way home. She can’t recall whether she was driving the ATV on the way home or not. She said she was too scared to say anything to her parents but recalls being unsettled and uncomfortable by the touching that had taken place. She said that the accused did not say anything to her when they returned home.

18The next incident described by the complainant took place in an apartment on Robert Drive in Renfrew, Ontario. By this time her parents had separated. She said that she moved with her mother to this apartment when she was about 11 or 12 years old while her brother Ma.K. continued to live with their father.

19The apartment on Robert Drive was located in the lower level of the building. It consisted of two bedrooms. It had a controlled entrance at the lobby of the apartment building but the apartment was either at ground level or slightly below ground level, such that a visitor could knock on one of the windows in the apartment and when this occurred, it was possible to leave the apartment and let the visitor in from an outside door at the end of the hall near the apartment, thereby eliminating the need to be buzzed in from the lobby.

20The complainant said that the accused would sometimes visit them at the apartment. She recalls the accused and her mother having a conversation while sitting at the kitchen table.

21On the day in question the complainant was home alone when the accused arrived. He asked her to access the internet for him to look up information about KTM motorcycles. She thinks that she was between the ages of 11 and 13 at the time. The computer was located in her bedroom. She recalls the accused being present in her bedroom while she sat in front of the computer. He was behind and slightly beside her. He reached under her shirt and her pants. There was skin to skin contact with her breast. He also reached under her pants and had skin to skin contact with her vagina. She recalls the accused making a swirling motion with his hand. There was no digital penetration. She recalls the accused making an awkward giggle while he touched her. He told her that he was hard and when he leaned against her side and she could feel his erect penis. The complainant said that she froze and remained sitting at the computer chair as the accused stood behind and beside her. She said that she stood up after a few minutes and the accused made an awkward giggle and left her room.

22After about two years the complainant and her mother moved from Robert Drive to Graham Avenue. She thinks the move might have taken place at the end of grade 8 or possibly when she was in grade 9. She can’t remember if there were any touching attempts while she resided with her mother on Graham Avenue. She said there may have been some other attempts to touch her but she cannot recall any specifics or details. The complainant said that she has no recollection of any incidents after she started grade 9 and they had moved from the Robert Drive apartment.

23The complainant said that there were times when the accused would visit the family home on Highway 132 and the accused did not make any attempts to touch her. The situation was similar while she was living on Robert Drive with her mother. She said there were times when the accused visited the apartment and did not attempt to touch her.

24She said she did not disclose these assaults to anyone at the time that they were happening. She noted that her parents were going through a divorce and she found the issue too embarrassing to discuss with her parents. She did not disclose these allegations to any friends or teachers for the same reason.

25She said the first person she made disclosures to was her then boyfriend S.C. when she was about 15 or 16 years old. She said she was very close to S.C. and trusted him. She told a few friends about the incidents subsequent to her disclosure to S.C.

26She went to the police last year because she wanted to put this issue behind her by disclosing what the accused had done. She said she finally felt strong enough to disclose the incidents to the authorities.

27The complainant says that her last contact with the accused took place when she was about 18 or 19 years old. The complainant, her boyfriend S.C. and her mother B.P. were in western Canada looking for work and stayed for a period of time at Da.K’s home.

28As it turned out, the accused was out west investigating a job opportunity that Da.K. had brought to his attention at the same time. He stayed at Da.K’s house as well. The complainant became annoyed with the accused because she felt that he was a freeloader and there was an issue about him borrowing a vehicle. She said she was angry and swore at him. She said that the accused did not say very much in response. There was no discussion between the complainant and the accused about the incidents that she said had occurred years earlier. She said she wasn’t strong enough at that time to disclose what he had done. The accused found another place to stay. She thinks this took place in about 2007.

29This was the last time she encountered the accused until going to the police about a decade later.

30In cross-examination she confirmed that when she notified the police about her allegations, the complainant told the police it was possible that, as a result of the trauma that she had experienced, she may not be able to recall some details. At the trial, however, she said that she knew exactly what happened.

31She said she disclosed her allegations to the police because the incidents continued to bother her and she didn’t want to hide what had happened anymore. She said she had become a stronger person and wanted to deal with this and to move on.

32She thinks that her recounting of the incidents was in chronological order. She said that she has a clear recollection of the first incident when the accused tried to touch her and in so doing, briefly touched her breast and vagina over her clothing. She told the cross-examiner that she was confident that what had she described had actually happened. She remembered that the accused left the house through the backdoor. She said she didn’t think he said anything when he left.

33She described her feelings at the time as scared, unhappy and uncomfortable. She said she knew what the accused was doing was wrong and she didn’t want it to happen again but it did happen again as many as 10 to 14 more times.

34The complainant could not say how much time had passed between the first and second incident. She agreed that she continued to let the accused into the house on subsequent visits when no one else was home. She said she was scared about what would happen if she didn’t let him in. She said that when the incidents took place she told him to stop but acknowledged that she never asked him to leave her alone and never tried to fight back.

35Although the incidents were similar, she agreed that there was not skin to skin contact on each occasion. She said that the touching did not take place in the context of tickling or playing.

36She said that she was left home alone on numerous occasions from when she was 9 years old and they were living at the house on Highway 132. She thinks she moved from the house on Highway 132 when she was 11 or 12 years old. She agreed that the accused did not visit the house each time she was home alone.

37The cross-examiner returned to the incident that took place when she was home from school watching TV in the basement. The accused sat beside her on the sofa. He tried to kiss her but his lips did not touch her. She recalls the feel of his whiskers. She moved away from him. He left and returned with the gifts.

38The cross-examiner suggested she was older when this occurred; maybe 16 but the complainant didn’t agree with this suggestion. The complainant agreed that she may have been 13 when the accused tried to kiss her.

39The complainant’s school attendance records were marked as exhibits. There is an absence from school indicated in the records for the complainant’s birthday in 2002 which would have been her 14th birthday. The complainant agreed that this may have been the time the accused visited her and brought gifts although she had previously indicated that she was younger. The school record corroborates the complainant’s testimony that she was home on a school day on her birthday.

40The complainant was unable to say how old she was when the ATV incident occurred. One of her brother’s friends rode the trike that she usually rode so that’s why she rode with the accused on his machine. She said she was afraid to ride with the accused but she wanted to act like nothing had happened between them. She agreed that riding with the accused was better than not being able to go on the trip at all. She believed that he wouldn’t do anything with the others present. The complainant estimated of the number of times the accused touched her on the ATV trip at 10 to 15 times then revised this to a few times. She rode on the back of the bike on the way home and nothing happened.

41The cross-examiner returned to the computer incident in her bedroom. The complainant’s mother was home when the incident occurred in her bedroom. The complainant didn’t recall what she was wearing. The touching ended when she stood up and moved away from the accused.

42The complainant said that she and her mother moved from the Robert Street apartment around the time the complainant started secondary school. She does not recall any assaults after moving from Robert Drive.

Evidence of B.P.

43B.P. currently lives on her own. Her two children, Ma.K. and M.K., were born two years apart. She was married to Da.K. They lived in a house on Highway 132 from 1983 until 2001. Her husband was a long haul trucker and she worked at Walmart. Her shifts were either the early shift from 8:00 a.m. until 1:00 p.m., or the afternoon shift from 1:00 p.m. until 9:00 p.m.

44She agreed that there were times when neither parent was home when the children got off the school bus but their grandmother would come over. The children may have been left alone on occasion but not for very long and Ma.K was old enough to watch his younger sister. The complainant may have been left alone briefly if B.P. was called into work but again, their grandmother was around to look in on the children.

45B.P. separated from her husband in November 2000. She stayed with the children in the house until the following May when she moved with her daughter to an apartment on Robert Drive. They lived there for two years. Ms. P has no recollection of the accused visiting them at the Robert Drive apartment.

46B.P. said that the complainant had a computer in her room when they lived in the apartment on Robert Drive.

47She recalled that the children would sometimes go 4 wheeling on the K&P trail and that the complainant went 4 wheeling with the accused a few times. The children weren’t allowed to go 4 wheeling on their own. She recalled that the accused asked her if was alright for the complainant to go 4 wheeling with him. The complainant would have been between the ages of 9 and 12 years old.

48B.P. said she noticed a change in the complainant around age 8 or 9. She was less happy-go-lucky and more withdrawn.

49She had no knowledge of an argument between her daughter and the accused while they were in Alberta.

Evidence of the Accused

50The accused is 53 years old. He is 22 years older than the complainant. He works as a crane operator. He previously drove a transport truck. For a period of time, he worked with the complainant’s father.

51In the early days of his friendship with Da.K. he lived on his own but was dating his future wife. They got married in 2000 and their daughter was born in November, 2000.

52During these years he often visited the complainant’s family. He described them as friendly. When he started visiting the family, the complainant was about 9 years old.

53As the complainant grew older, the accused noticed that both the complainant and her brother were interested in ATVs. He owned an ATV as well, having purchased it in 2002.

54The accused acknowledged that he would sometimes stop to visit and the complainant would be home alone. He would ask the complainant where her father was but would not enter the house. On these occasions he would sometimes visit with the complainant at the door.

55He denied that he chased the complainant around the table trying to touch her. He denied trying to kiss her cheek.

56The accused testified that he went 4 wheeling with the complainant on two occasions. The first time was in April, 2002. When they set out, the complainant was riding with her brother on a Honda 3 wheeler. On the trip home, the complainant rode with the accused. He let her drive for about a kilometer. The weather was cool and they wore winter clothing. He denied touching the complainant inappropriately.

57The complainant’s boyfriend was present on the second trip and the complainant rode with him. They got lost while exploring some hunting trails. He did not touch the complainant inappropriately.

58He did not recall going on the ATVs when Ma.K. and his friends were present.

59He testified that the complainant and her mother lived in an apartment on Hall Street before moving to Robert Drive. His recollection was that he visited them once on Hall Street and twice when they lived on Robert Drive. He recalled that Ms. P usually had a supply of baked goods on hand which was an incentive for him to drop in for a visit.

60He recalled a time when the complainant and her mother were living on Robert Drive. He said he thought it was the spring of 2004. He had ordered a KTM motorcycle from Europe. They were being imported into Canada for the first time. The accused estimated that the complainant was about 16 years old at the time. He stopped at their apartment to boast about his new purchase. He said the complainant had shown an interest in motorcycles, perhaps because her father rode motorcycles. The complainant greeted him at the door of the apartment. Her mother was not home. He said the complainant looked sad and she told him that there had been some conflict with her father’s girlfriend D.I. He decided he would do something to cheer her up. He left the apartment and went to Wendy’s to pick up some food for the complainant. He also bought her a Nike T shirt and returned with these gifts. They were not birthday presents as suggested by the complainant. He denied that he had entered the apartment or went into the complainant’s bedroom to access her computer. He said it didn’t feel right to be in the apartment if the complainant was alone. He denied the allegation that he had rubbed his penis against her and that he told the complainant that he was hard.

61The accused recalled his visit with the complainant’s family in Alberta a few years later. In his account the details were a little different than the complainant’s recollection but he seemed to agree that the visit didn’t go very well. He said he complained to a friend about the condition of the house and word got back to the family. During a telephone call with the complainant, she said he was ungrateful for what her family had done for him over the years and she called him a user. Her father got on the phone as well and the accused said he seemed quite angry.

The Law

62The accused has the benefit of the presumption of innocence and this presumption remains with him throughout the trial unless and until Crown counsel proves his guilt beyond a reasonable doubt.

63The phrase, “beyond a reasonable doubt” is a very important part of our criminal justice system. If I was to conclude that D.K. was likely guilty, he would be entitled to be found not guilty because Crown counsel would have failed to prove his guilt beyond a reasonable doubt. Likely or probable guilt does not meet the required standard.

64Determining guilt or innocence is more than a credibility contest. If I was to find that the evidence of the complainant was more credible and reliable than the evidence of the accused, such a finding is not itself sufficient to displace the presumption of innocence. That’s because even if I believe the complainant and don’t believe the accused, I may still have a reasonable doubt as to his guilt.

65I found that the complainant testified in a straight-forward manner. I think she attempted to give an honest account of what she recalled.

66The fact that the complainant did not disclose her allegations for many years is not unusual. There are many reasons why someone may not be prepared to come forward until they are ready. As the complainant said in this case, her parents were in the middle of a separation for at least part of the time, she was embarrassed and did not feel strong enough to go public with her story until recently.

67In terms of reliability, the complainant was uncertain of her age in describing the incidents in question and it seemed to me that there was other evidence that conflicted with her age estimates but recalling precise dates is not required or expected. It struck me as unusual though, that the complainant would have been left home alone with the frequency that she described from as young an age as 9 onwards and this was inconsistent with her mother’s evidence.

68I wondered about the complainant’s willingness to go 4 wheeling with the accused when he had chased her around the house trying to touch her. It may be that the lure of an ATV trip prompted her to put her concerns to the side. I also wondered about the mechanics of how the touching took place while driving an ATV in the early spring while wearing winter clothes.

69As for the accused, he testified in his own defence. He answered questions directly and without undue hesitation. He did not seem evasive, defensive or argumentative.

70I did not find any significant inconsistencies or obvious flaws in his version of events nor did I find his evidence inherently improbable.

71At the same time, however, I found that he seemed to have an answer for every question even though he was being asked about events from many years before. On many occasions he used words like “I would have done such and such”, or “I might have done that” and “I probably did so and so” which gave me the impression that he wanted to have more of an answer to the cross-examiner’s questions than simply saying I don’t remember or I don’t know.

72I don’t think the fact that the complainant got angry with the accused and confronted him about being a freeloader and a mooch prompted her to fabricate allegations against the accused but it did give me the impression that the complainant was someone who was prepared to speak her mind.

73I have also considered that since the defence is basically a denial, there is only a limited amount that an accused can say beyond asserting that the allegations are not true.

74Having considered all the evidence, I am not sure what may or may not have happened between the complainant and the accused.

75In the result, I have come to the conclusion that I have a reasonable doubt that the accused committed the offences set out in the indictment and therefore I find him not guilty on all counts.