COURT FILE NO.: CR-18-007-00; CR-19-0078-00
DATE: 2021-01-28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Jane-Anne McGill, for the Crown
- and -
C.B.
Francis Thatcher, for the Accused
Accused
HEARD: February 25, 26, 27, October 15, November 30, 2020 and by written submissions, at Thunder Bay, Ontario
Mr. Justice F. Bruce Fitzpatrick
WARNING
A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING
UNDER S. 486.4(1) OF THE CRIMINAL CODE OF CANADA
Reasons For Judgment: Delivered Orally
[1] C.B. stood trial for three days in February 2020 in respect of an eleven-count indictment. M.F. was the complainant in respect of ten of those counts. The evidence was completed on February 27, 2020 and, at that time, the parties anticipated giving oral submissions in mid-March 2020. The pandemic intervened. Submissions were further delayed first by the Crown misunderstanding they had agreed to make their submission in writing first. Submissions were then further delayed by a series of unfortunate events that befell counsel for C.B. Judgment was originally scheduled to be given on October 15, 2020. It was not given that day for reasons which were explained on the record. Counsel were given additional time to make submissions. Judgment was scheduled to be given on November 30, 2020. It was not given that day for reasons which were explained on the record. Ultimately, written submissions were concluded on December 4, 2020. I say this only to explain why it has taken this long to give reasons for a decision for a trial that was completed close to a year ago.
[2] M.F. complains she was sexually assaulted and subjected to illegal sexual touching by C.B on a number of occasions in the first two months of 2017. The Crown has invited the court to acquit C.B. in respect of count 7 that between January 1, 2017 and March 31, 2017, C.B. assaulted M.F. contrary to s. 266 of the Criminal Code, R.S.C. 1985, c. C-46. The Crown has also invited the court to acquit C.B. in respect of count 8 on the indictment related to an allegation that C.B. administered a noxious substance to M.F. sometime between January 1, 2017, and March 31, 2017. C.B. is further charged with breach of probation. The Crown argues for a conviction of this count only in the event there is a conviction on a substantive other count on the indictment.
[3] As the result of the above noted Crown submissions, I find C.B. not guilty in respect to counts 7 and 8 on the indictment before the Court.
[4] The Crown seeks to prove beyond a reasonable doubt there were four distinct occasions of sexual assault and improper sexual touching which occurred in January and February 2017. At the time, M.F. was 13 years old. She turned 14 in February 2017. C.B. was 21 years old and turned 22 during the time frame relevant to this trial. C.B. denies all the allegations against him.
[5] At the opening of trial, I made an order banning publication of details which would identify M.F. pursuant to s. 486 of the Criminal Code. Counsel for C.B. has admitted the age of the complainant at the time of these allegations by confirming the date of her birth. Counsel for C.B. has admitted jurisdiction as well as the fact that C.B. is the person who is alleged to have committed the offences set out in the indictment before the Court. During the evidence, the Crown led evidence that specifically identified three physical locations in Nipigon and one in Thunder Bay where the assaults were alleged to have occurred. In these reasons, I will only describe in general terms the three out of four locations which were private property. I do this to protect the identity of the complainant and the accused, as Nipigon is a small town.
[6] The police interviewed M.F. on March 31, 2017. The video recording was admitted in to evidence in this matter, as M.F. testified that she adopted the contents of her video statement. C.B. did not oppose the manner in which this evidence was introduced. Further to the provisions of s. 715.1(1) of the Criminal Code, I made an oral ruling during M.F.’s testimony in chief that admission of the video recording into evidence would not interfere with the proper administration of justice. Also, mid-way through M.F’s testimony, a screen was placed before C.B. on consent.
[7] M.F. testified that the occasions of improper sexual activity and sexual assault occurred in four distinct places. These places were: (1) a common room in a Nipigon apartment building; (2) at a public library washroom in Nipigon; (3) at C.B.’s mother’s home in Nipigon; and (4) at C.B.’s sister’s home in Thunder Bay. Counsel for C.B. admitted the incident at the Nipigon public library washroom occurred on the night of January 27, 2017.
[8] C.B. testified in his own defence. He denies that any sexual activity occurred at any time between himself and M.F.. He admitted in his testimony that he was alone with M.F. in all the above noted locations at some point in January or February 2017. He disputes that he had sex with M.F. or engaged in any sexual touching on any of those occasions. I will deal with all the evidence of the parties later in this judgment. However, before describing the specific trial evidence, I note that in the brief oral submission of both counsel at the close of trial but before they made their formal submissions, they agreed my assessment of all evidence in this matter is guided and informed by the principles contained in the leading case of R. v. W.(D), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. Counsel for the defence confirmed the reliance on a W.(D). analysis in written submissions. Following a discussion of the so-called W.(D). principles, I will make some comments about how I perceived the overall evidence of all the witnesses in this matter. I will then discuss the individual events alleged by the Crown and give my analysis and findings as to whether all the evidence in this matter leads me to conclude the Crown has proven the matters set out in the indictment before me beyond a reasonable doubt.
The Law
R v. W.(D.)
[9] W.(D.) involved a sexual assault. The central issue in the trial was the credibility of the complainant and the accused in circumstances where the accused had denied the alleged assault.
[10] At pages 757-58 of the reasons, the Supreme Court of Canada set out the W.(D.) framework as follows:
The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Secondly, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole. See R. v. Challice (1979), 1979 CanLII 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), approved by R. v. Morin, supra, at p. 357 [[1988] 2 S.C.R.].
Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[11] Pursuant to the first step of the W.(D.) formula, I must not consider the accused’s version of events in isolation – as if the Crown has led no evidence. The evidence that supports the accused must be assessed in the context of all the evidence.
[12] I must approach the second step as set out by Binnie J. who wrote for a unanimous court in R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at paras. 10-13:
The precise formulation of the W.(D.) questions has been criticized.
As to the second question, some jurors may wonder how, if they believe none of the evidence of the accused, such rejected evidence may nevertheless of itself raise a reasonable doubt. Of course, some elements of the evidence of an accused may raise a reasonable doubt, even though the bulk of it is rejected. Equally, the jury may simply conclude that they do not know whether to believe the accused’s testimony or not. In either circumstance the accused is entitled to an acquittal.
In light of these possible sources of difficulty, Wood J.A. in H. (C.W.) suggested an additional instruction:
I would add one more instruction in such cases, which logically ought to be second in the order, namely: “If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit”. [p.155]
In short, the W.(D.) questions should not have attributed to them a level of sanctity or immutable perfection that their author never claimed for them.
[13] W.(D.) clarifies that a criminal trial is not a credibility contest where the trier of fact must choose whether to believe one side or the other. Justice Cory stated, at p. 757, that:
It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown’s evidence. Putting this either/or proposition to the jury excludes the third alternative; namely, that the jury, without believing the accused, after considering the accused’s evidence in the context of the evidence as a whole, may still have a reasonable doubt as to his guilt.
[14] The third step of the W.(D.) analysis is engaged where the totality of the defence evidence is rejected. This then leaves the evidence to be assessed on whether the Crown has discharged its burden of proof beyond a reasonable doubt.
[15] In R. v. Woolam, 2012 ONSC 2188, leave to appeal dismissed, 2013 ONCA 711, Durno J. reiterated, at para. 52, that:
W.(D.), does not mandate an examination of the evidence favouring the defence in isolation from the rest of the evidence. In assessing Crown or defence witnesses, the trier of fact must consider their evidence in the context of all of the evidence, including whether it was internally consistent, whether it was consistent with other evidence called, the witness' demeanour and whether their evidence accords with logic, common sense and human experience.
The Witnesses
[16] The Crown called three witnesses: the complainant, M.F., R.B., a Nipigon resident of the apartment building containing a common room where one occasion of sexual assault is alleged to have occurred, and a statement of a probation officer that was admitted on consent. The statement of the probation officer was admitted only for the purposes of proof that M.F. first drew attention to the events alleged in the indictments to that probation officer on March 31, 2017.
[17] C.B. testified first for the defence. The defence also called his mother, H.B., and his sister, S.B, as witnesses.
[18] M.F. was the first witness called by the Crown. It was clear from the manner in which M.F. testified that she was traumatized by the events of January and February 2017. She was careful in her responses and was clearly upset by having to recount the events at issue. I appreciate she was very anxious while testifying. Despite the fact she was soft spoken and seemed tentative in giving some answers in cross-examination, the answers she gave to the questions asked of her and the manner in which she responded indicated that she understood the questions and was answering them to the best of her ability and in a truthful way.
[19] M.F. was candid in cross-examination as to what she remembered and what she did not remember. She did not attempt to exaggerate her evidence in my view. She admitted to unlawfully obtaining and consuming alcohol and to consuming illegal drugs. Nevertheless, she was firm in her description of the incidents where she says she was sexually assaulted by C.B.. In my view, her evidence was internally consistent. She used the same language and descriptors with regard to events in both her video statement and during her evidence at trial.
[20] R.B. testified. I note C.B.’s mother, H.B., testified that R.B. was a family friend who had coffee with her every other day. R.B. did not reveal this close connection during his evidence. H.B. could not recall R.B’s last name when first asked during her examination in chief. Counsel for the defence did not clearly or even tangentially put it to R.B. that he was a close family friend of C.B.’s family or that R.B. had known C.B. all his life. R.B. testified in chief he had known C.B. for five or six years.
[21] In my view, R.B. gave his evidence in a forthright and straightforward manner. His evidence was not shaken on cross-examination. I do not accept the defence submission that his trial evidence was grossly embellished. I do not accept the defence submission that his earlier statement to the O.P.P. was so different from his trial testimony that it can be said his trial evidence was inconsistent and should not be accepted. I also do not accept that whatever was reportedly said between H.B. and R.B. outside of court was verified in any way, either in their evidence in chief or on cross-examination of both witnesses. It certainly was not of the quality that would allow me to draw a conclusion other than that R.B. was giving his evidence at trial in a straightforward manner.
[22] C.B. testified. I do not find C.B.’s evidence either credible or reliable. I will elaborate below. I find that H.B. gave her testimony in a forthright and credible manner. I agree with the defence concession that her evidence “demonstrated a marked animosity” to M.F. No doubt her evidence was blunt on some points. The extent to which her evidence was significant or useful in this matter will be discussed below. I make the same comments for the evidence of S.B., whose testimony I found to be forthright and credible.
[23] M.F. was not an adult when she testified. She did have difficulty piecing together the events that occurred in January and February 2017 in exact chronological order. The events at issue occurred over three years ago when she was 13 turning 14. I have treated her evidence in that context. I appreciate the Supreme Court of Canada has given direction as to the treatment of the evidence of young children in R. v. B.(G), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30. M.F. is not a young child. The comments of Justice Wilson in R. v. B.(G.) at pp. 54-55 do not strictly apply. However, I have assessed the inconsistencies in her testimony in light of the principle that contradictions in the evidence of children should be considered slightly differently than similar flaws in the testimony of an adult. From her evidence, it appears in the mid-winter of 2017, her judgment had not fully developed, as she testified when she was 13 turning 14, she made some very poor choices, illegal ones for her at the time, with respect to the use of alcohol and marijuana.
[24] During cross-examination of M.F., counsel for C.B. focused on some inconsistencies in M.F.’s testimony in comparison to earlier statements she had given to the police. M.F. had difficulty dealing with these inconsistencies but I find her difficulties did not indicate her present testimony was untruthful or unreliable. Instead, these difficulties suggest that she had a problem understanding why counsel would continue to ask her the same type of questions over and over. I do not fault counsel for C.B. for anything he did in the course of conducting the cross-examination. However, I believe that for a person of M.F.’s age (17 at the time of trial), this form of examination can be confusing and difficult, particularly given the subject matter. I do not take “mistakes in the evidence” as submitted by counsel for C.B. as rising to the level that would lead me not to accept M.F.’s evidence as anything but credible and reliable.
[25] I also do not accept the defence submission that M.F. had a motive to fabricate evidence about C.B. I agree she appeared to be angry with C.B. when she gave her statement to the O.P.P. on March 31, 2017. I understand how a person who alleges they have been sexually assaulted by another may appear to a disinterested third party as being angry. However, the many other aspects of M.F.’s testimony, including her detail of the events, her straightforward candour in answering questions even when the answers were not favourable to her conduct and her consistency under cross-examination which, in my view, do not indicate she had a motive to fabricate evidence against C.B.. This is despite M.F. telling an officer she was “pissed off” with C.B within a few months of events which M.F. alleges constituted a situation where she as a minor was sexually assaulted by an adult.
Background
[26] There is some background to events at issue in this trial that bears repeating. This background evidence was not disputed by any of the witnesses at this trial.
[27] M.F. had a boyfriend in late 2016 and early 2017. His name was S.L. S.L. was 14 turning 15 at the time. M.F. had been staying at S.L.’s home off and on as of early January 2017. S.L.’s older sister was C.B.’s boyfriend, and now “best friend” according to C.B.. In January 2017, S.L. was angry at M.F.. S.L. believed M.F. had cheated on him with C.B.. In response, S.L. broke up with M.F. and moved away to another settlement area relatively close to Nipigon. M.F. was very upset with S.L.’s actions. As a result of S.L. moving away, M.F. could no longer stay at his home. As of early January 2017, M.F.’s housing arrangements seemed to be a bit up in the air. C.B. attempted to have M.F. stay with his mother. H.B. was having none of this and told M.F. to get out of her house. C.B.’s mother described this overall background during her evidence as “high school drama bullshit”. I agree with this apt characterization.
[28] The fact that M.F. was not prepared to go home to her father, who lived outside of Nipigon, put she and C.B. in a circumstance that led to three distinct occasions where the Crown alleges C.B. sexually assaulted M.F.
[29] The defence made a great deal about M.F.’s evidence concerning the sequence of the events at issue. C.B. was quite firm that the events happened in a certain sequence. From the evidence and the way the Crown has structured its indictment, I find there were four separate incidents involving C.B. and M.F. The Crown did not bring a similar fact application before or during this trial. I have treated all the incidents as distinct and separate from each other. Both M.F. and C.B. celebrated birthdays within the timeframe at issue which helped to narrow the range of dates. From the evidence, it is clear that the Nipigon library incident happened on January 28, 2017, as was confirmed by an independent witness and agreed by the parties. Also, on the evidence of the parties, C.B. and M.F. were together in Thunder Bay after the first three incidents are alleged to have occurred. Practically, the only difference in the evidence as to the sequence is where the incident at H.B.’s house occurred relative to the apartment incident and the Library incident. C.B. was firm in his testimony that all the incidents happened in a particular sequence. M.F’s evidence was not as firm on the sequence of events. The exact dates of the incidents, other than the one at the Library, were unclear from the evidence. In my view, the exact dates do not matter with respect to the Crown proof of the essential elements of the offences at issue. I do not agree with the submission of the defence that because M.F. was unclear as to which event happened at which time, this leads to a conclusion of reasonable doubt.
[30] There is no doubt from all of the evidence that M.F. and C.B. were together at four distinct times and at four independent places in late January and early February 2017. On those occasions, M.F. testified she was sexually assaulted or touched inappropriately by C.B. with his penis. C.B. denies such things happened during the times he admits he was alone with M.F. I do not think the particular sequence about which either M.F. or C.B. testified does anything to assist with the assessment of their respective credibility. I say this because I am treating all incidents as separate and distinct.
[31] The Crown’s indictment had three identical counts in terms of the time period, January 1, 2017 to March 31, 2017, and place, the township of Nipigon, related to a charge of sexual assault contrary to s. 271 of the Criminal Code. These were counts 1, 2 and 3 on the indictment.
[32] The Crown’s indictment had three identical counts in terms of the time period, January 1, 2017 to March 31, 2017, and place, the township of Nipigon, related to a charge of inappropriate touching contrary to s. 151 of the Criminal Code. These were counts 3, 4 and 5 on the indictment. The Crown was not prepared to assign any specific count to the three separate incidents it alleges occurred in that time frame in Nipigon. However, I am going to make findings of fact and law related to those counts, and assign them to incidents described in the evidence.
[33] Understanding that background, I will now discuss and make my findings about each distinct incident.
The Apartment Building Common Room Incident: Counts 1 and 4
[34] It was January 2017 in Nipigon, Ontario. I did not get any specific evidence from either party at trial as to Environment Canada weather reports for all the days in January 2017. I take judicial notice of the fact that it is usually very cold in Nipigon at night in January of any year. I take judicial notice that without specialized outdoor winter clothing and protective gear, it is very dangerous to attempt to spend overnights out of doors in Nipigon in January of any year.
[35] Both M.F. and C.B. testified that they were alone late at night and early in the morning in a common room of a six-unit apartment building in Nipigon in January 2017. C.B. was confident the date was January 27, 2017, between 2 a.m. and 6 a.m. He was confident in the date because his testimony was that he was with M.F. in the three places where she says she was sexually assaulted over a 48 hour period from the early hours of January 27, 2017, until late in the day on January 28, 2017. His confidence is confirmed because the parties agreed that an independent municipal worker saw C.B. and M.F. in the morning of January 28, 2017, at the municipal building in Nipigon. According to C.B., that was the second of the three locations where he admits he was alone with M.F., and where she says she was sexually assaulted.
[36] The testimony of C.B. and M.F. was consistent as to why they went to the apartment building. C.B.’s mother would not let M.F. stay at her place. C.B.’s friend, A.S., would not let M.F. stay at her place. M.F. refused to go home to her father. It was a January night in Nipigon. C.B. had a friend who lived at the apartment building, so they went there. Neither C.B. nor M.F. testified that either lived there on a regular basis at that time. The evidence of C.B. and M.F. was contradictory as to what happened between them during the time they were alone in the common room at the apartment building. However, I had the evidence of three witnesses, C.B., M.F. and R.B., from which I can make findings as to what occurred on that occasion.
[37] M.F. testified she went with C.B. to the apartment that night sometime between 6 and 8 p.m. C.B. testified they showed up at the apartment building at 2 a.m. on January 27, 2017. R.B. testified that C.B. buzzed his apartment asking to be let in at 1 o’clock in the morning. R.B. did not know the exact date but thought it was January. I prefer the evidence of R.B. that the time was 1 o’clock in the morning. C.B. had a friend living at the apartment building but for reasons that were not adequately explained by anyone’s evidence at trial, C.B. and M.F. went straight to the common room.
[38] M.F. and C.B. differed on their testimony about what happened between them in the common room. Both agreed there was some “play fighting” on a couch in the common room. M.F. testified C.B. kissed her and she did not like it. C.B. testified that M.F. tried to kiss him and he rebuffed her. C.B. testified the two were “fooling around” having a pillow fight. During this time, C.B. testified that M.F. had been in contact by text with S.L. At this time C.B., testified he was coaching M.F. on ways to convince S.L. that she was not cheating on him.
[39] M.F. testified the two were sharing a 26 ounce bottle of vodka while in the common room. C.B. denies he was drinking anything at the time. M.F. testified the alcohol made her feel “loose”. According to M.F., the “play fighting” progressed well beyond a pillow fight. She took off her pants. C.B. took off all his clothes and the pair had sex in the common room.
[40] M.F. testified that R.B. walked in to the common room and saw the pair having sex. R.B. testified he came in to the common room at about 2:30 am. He testified he saw the pair “fooling around”, upon which he elaborated to mean “they had their pants down”. R.B. observed C.B. on top of M.F. Counsel for C.B. attempted to cross-examine R.B. on the basis of a statement he made to police on April 1, 2017. As noted previously, I find that the earlier statement that R.B. saw “them going at them on the carpet” is not inconsistent with R.B.’s trial testimony to the effect he saw the pair naked from the waist down, to the point he “could see his rear end”, “his” being C.B.’s. In my view, R.B. was not shaken in cross-examination on this very important point.
[41] R.B. told the pair they had to get out.
[42] C.B. had a complicated explanation for what happened in the common room. His testimony acknowledged that R.B. came upon M.F. in a state of undress. However, he explained this as follows. The pair knew they had to leave the common room before the landlord came at 6 a.m. C.B. went to a washroom adjacent to the common room to change into warmer clothes because the pair had to leave. At the exact point that C.B. came out of the washroom, R.B. walked in to the common room to find M.F. with her pants off. C.B. says R.B. said something to the effect of “what is going on here” and in a stern way told them to leave.
[43] In dealing with these inconsistencies in the evidence about what happened in the common room, I prefer the evidence of R.B.. I accept his testimony that he saw M.F. and C.B. both with their pants off. I accept his testimony that he saw C.B. on top of M.F. I accept that his description of having seen the pair as “fooling around” means he saw them on an occasion where there was sexual touching. R.B.’s testimony is consistent with M.F.’s testimony that the pair was having sex in the common room. I find R.B. saw C.B. and M.F. engaged in a sexual act in the common room of his apartment building in January 2017.
[44] The defence submits R.B.’s testimony should not be believed. It was submitted that R.B. was a longstanding friend of C.B.’s family. In my view, given the manner in which R.B. testified and the fact he was unshaken in cross-examination does not assist the defence submission that his evidence was embellished. I do not see that R.B. would have any motive to fabricate any testimony at trial. His cross-examination was relatively brief. I do not agree with the defence submission that his evidence was not credible
[45] I do not accept C.B.’s explanation of events. It makes no sense. Given the provisions of s. 150.1 of the Criminal Code and M.F. and C.B.’s respective ages, the elements of consent and knowledge of consent was not a relevant consideration in coming to a conclusion concerning the evidence of M.F. or C.B. The defence submits that M.F. “agreed” to have sex with C.B., as she testified “I like maybe once or twice kind of allowed him and the rest of the time he never asked or I’d be too fucked up”. This “agreement”, goes the argument for the defence, eliminates the ability for me to find that the Crown has proven a sexual assault contrary to s. 271 of the Criminal Code. I do not accept this argument.
[46] I find C.B. has concocted his evidence about what happened in the common room after the fact. He had the benefit of hearing the evidence of both M.F. and R.B., and realized there was no realistic way to explain how it was that an independent, disinterested third party testified he saw both people, half naked, together on the floor, in a place they had no legal right to be, in the middle of the night. C.B. described the situation as a “what the fuck?” moment. I agree with that characterization.
[47] I appreciate this phrase has not made it in to the Oxford dictionary quite yet. However, in my experience, “WTF”, a short form for “what the fuck?” is a common short form used when texting or sending other electronic messages for persons in Canada. I understand it to be an expression of extreme surprise that is now in common parlance. It is very rare for a person to come upon others who are half naked and appear to be in the middle of a sexual act. I believe a natural reaction would be to turn away and to strongly indicate by words that a non-participant was present and that the current activity should stop. I accept R.B.’s testimony, confirmed by M.F. and to a degree by C.B., at least in so far as he agrees R.B. saw M.F. with her pants off, that R.B. came upon the pair having sex and told them to get out.
[48] The testimony of R.B. and M.F. concurred on the point of R.B. coming in the room to find C.B. having sex with her. In my assessment, any inconsistencies in the testimony of these two are not of a sufficient nature to lead me to disbelieve the essential and unshaken aspect of M.F.’s testimony, namely that she was a victim of sexual assault and inappropriate sexual touching by C.B. in the common room of the apartment building. I do not accept any of C.B.’s testimony to the effect he did not have sex with M.F. on that occasion. Everything that was going on in that common room was inappropriate. The age difference between C.B. and M.F., for one. The time of day the two of them were alone in a place they had no legal right would be an “inappropriate” situation, for two. The fact that C.B. claimed M.F. tried to kiss him, which should have caused him to leave but he didn’t, for three. The fact that a 21 year old was “play fighting” with a 13 year old, for four.
[49] The defence characterizes C.B.’s actions as a “quest’ to protect a vulnerable young girl who had no place to stay during the depths of winter. I disagree. I find his acts to be those of a sexual predator.
[50] In my assessment, M.F. did not resile from her testimony that C.B. and she were naked from the waist down and C.B. was in a position relative to M.F. that constituted both a sexual assault and an inappropriate sexual touching of her with his penis. Her description of the events was not given in a way that I took her to be exaggerating or making up details of what occurred. She did not vary from her testimony concerning the essential element of the offence, namely that C.B. intentionally applied force to her and that the force took place in circumstances of a sexual nature.
[51] I find the Crown has proved beyond a reasonable doubt that in respect of count 1 on the indictment before the court that between January 1, 2017, and March 31, 2017, at an apartment building in the township of Nipigon whose address contains the initials WC, C.B. did commit a sexual assault on M.F. contrary to s. 271 of the Criminal Code. Consent is not available to C.B. as a defence given the ages of the parties. Further, I find the Crown has proved beyond a reasonable doubt in respect of count 4 on the indictment before the court that between January 1, 2017, and March 31, 2017, at an apartment building in the township of Nipigon whose address contains the initials WC, C.B. did for a sexual purpose touch M.F., a person under the age of 16 directly with his penis contrary to s. 151 of the Criminal Code.
The Incident in the Nipigon Library Washroom January 28, 2017: Counts 2 and 5
[52] It was an agreed fact that M.F. and C.B. were seen together in the proximity of a public washroom in the public library within the Nipigon municipal building on January 28, 2017. It was also agreed that the pair had spent the night, meaning being physically present there from the late evening of January 27 to the morning of January 28, 2017. C.B. places this incident second in the sequence of events at issue in this trial, whereas M.F. testified it was the third incident in the sequence.
[53] According to C.B., in the morning of January 27, 2017, the pair began walking after being kicked out of the apartment building. They walked a good distance, including across the local landmark Nipigon Highway 11/17 bridge over the Nipigon River. C.B. wanted to buy “cheap cigarettes”. A First Nation reserve is located on the east side of the Nipigon River bridge. After returning to the town, the parties went to the local hockey arena. At about 3 p.m., they went to the public library. They went there to connect to the free Wi-Fi. They stayed there until the building closed to the public at 9 p.m.. Despite the fact it was closed, they stayed inside the building.
[54] C.B.’s and M.F.’s testimony differed on what happened during that overnight sleep over in a public washroom. Despite the fact that there is a male washroom and a female washroom, C.B. and M.F. stayed in only one of the washrooms. M.F. testified the pair had a bottle of vodka. She could not recall when they had started drinking it but they finished it overnight in the washroom. C.B. admitted that he had been smoking marijuana while the pair overnighted in the library.
[55] M.F. testified that C.B. put her up on a sink and penetrated her. He ejaculated. M.F. was concerned she may have become pregnant. C.B. denies he had sex with her. C.B. testified he was smoking marijuana while at the location.
[56] The defence focuses on M.F.’s inconsistencies with respect to the date on which this incident occurs. Other than those inconsistencies, there was no other evidence led as to the detail provided by M.F. of the alleged sexual assault, other than a blanket denial by C.B.. I did not find those inconsistencies as to time sufficient to overcome the evidence of M.F. concerning the sexual assault.
[57] I prefer the evidence of M.F. I discount the evidence of C.B. about this incident. To begin, the fact that the pair slept in the same washroom lends credence to M.F.’s evidence that the pair had sex. Ultimately, C.B. in cross-examination admitted he was having “an emotional relationship” with M.F. rather than a sexual one. In my view, if indeed C.B. had M.F.’s best interests at heart as he would have the court believe, he would have called the police to have M.F. taken to some appropriate place rather than stay in a washroom in a public library.
[58] On numerous times during his testimony, C.B. acknowledged that the age difference between the two made any kind of intimate relationship completely inappropriate. On the occasion of the “sleep over” in the library, C.B. had the opportunity to “sleep” in a separate place. He chose not to do so. To me, this is indicative of behaviour consistent with M.F’s testimony that the couple had sex on that occasion. The age difference was completely inappropriate. The choice of place to sleep was completely inappropriate. C.B. did not expect anybody would disturb them in a public place that was closed to the public at the time. In my view, the event was consistent with a desire of C.B. to have sex with M.F. and not to be discovered.
[59] The fact that M.F. spent the night there was not evidence of consent or agreement of M.F. to sexual touching of her by C.B..
[60] M.F. was not shaken on cross-examination about this occasion. She testified in a rather matter of fact way about the event. Her testimony was consistent. I believe her as to what happened. I do not believe C.B. as to what happened in the library public washroom. In my view of all the evidence, M.F’s description of the events was not given in a way that I took her to be exaggerating or making up details of what occurred. She did not vary from her testimony concerning the essential element of the offence, namely that C.B. intentionally applied force to her and that the force took place in circumstances of a sexual nature.
[61] I therefore find the Crown has proved beyond a reasonable doubt in respect of count 2 of the indictment before the Court that between 9 p.m. on January 27 and 9 a.m. on January 28, 2017, at the Nipigon public library washroom, C.B. sexually assaulted M.F. contrary to s. 271 of the Criminal Code. Also, I find that the Crown has proved beyond a reasonable doubt in respect of count 5 on the indictment before the court that between 9 p.m. on January 27 and 9 a.m. on January 28, 2017, C.B. did for a sexual purpose touch M.F., a person under the age of 16, directly with his penis contrary to s. 151 of the Criminal Code.
The Incident at the Home of H.B.: Counts 3 and 6
[62] C.B. testified that after the pair was spotted at the Nipigon Public Library, they made their way to a local youth employment agency. At that point, the police intervened and apprehended M.F. M.F. also testified that she was apprehended for a brief period by police after she and C.B. attended at the employment agency. The police returned her to her school. She quickly removed herself from school and rejoined C.B. in town.
[63] At that point, C.B. testified the pair went to H.B.’s house. H.B. was at work. H.B. has an autistic daughter who also must have been home at the time. Again, the evidence was unclear as to where she was and what, if anything, she did in this matter. In any event, C.B. and M.F. both agreed they were together alone in a room at H.B’s house at some point between January 1, 2017, and March 31, 2017. Both testified to entirely different versions as to what happened in the room.
[64] C.B. testified he went to his bedroom alone to sleep. After about 40 minutes, he awoke to find M.F. in the room wearing a balaclava. She was “looking at his stuff”. I note this was evidence that C.B. gave in chief. H.B. came home soon afterwards, according to C.B. At that point, C.B. testified M.F. was in H.B.’s room. H.B. in her testimony confirmed that, at some point, she had come home to find M.F. in her home. She testified there were three occasions that this occurred. According to H.B., C.B. was not present on any of the three occasions where she came home to find M.F. present. H.B. did not call the police about this apparent trespasser. She just told her to leave.
[65] C.B. testified that H.B. was irate to find M.F. in her home. She yelled at both of them and told them to leave. According to C.B., the pair then left the home and headed for a roadside retail location near Highway 11/17. M.F. was then picked up by an adult and C.B. did not see her again until he met up with her in Thunder Bay. C.B. denied that he had sex with M.F. at H.B.’s home. C.B. denied that he touched her with his penis while at H.B’s home. C.B. denied that he gave any drugs, prescription drugs or alcohol at any time while the pair was at H.B’s home.
[66] Both H.B. and C.B. testified about a theft of jewelry from H.B.’s bedroom that occurred at a time material to the events at issue. It was put to M.F. in cross-examination. She denied she stole jewelry from H.B. I find this matter of the theft was entirely collateral to the issues that mattered in this trial. To begin, the defence put it to M.F. in cross-examination that she had stolen the jewelry, pawned it in Thunder Bay, and then the police returned it to H.B.. H.B. testified the missing jewelry showed up in a bag hanging from her door knob a few days after she had initiated a Facebook chat with M.F. in which she made a veiled accusation about the theft. The defence evidence was not properly characterized to M.F. when put to her in cross-examination.
[67] I was not persuaded about anything concerning M.F.’s credibility in respect of this issue. She denied she stole the jewelry. I believe her. I find the evidence of C.B. about M.F. showing up in his bedroom wearing a balaclava to be completely incredible. This rather unusual event was not put to M.F. while she was being cross-examined. I suspect this is because the first time defence counsel heard about the allegation was when C.B. said it in the witness box. Again, his testimony about this particular fact makes no sense. It had an air of C.B. making things up on the fly. The defence argues this evidence should be disregarded in assessing C.B.’s credibility. The defence argues this issue is collateral to the question of whether or not C.B. committed a sexual offence with M.F. while the two were in H.B.’s home. I disagree.
[68] The evidence about M.F. wearing a balaclava was given in chief. It was given in the course of counsel asking questions about what occurred while the couple were at H.B.’s home. It is alleged by the Crown through the evidence of M.F. that C.B. sexually assaulted her at H.B.’s home. In my view, this evidence is relevant to an assessment of credibility, as it was C.B. giving his evidence about what occurred during a relevant occasion during his evidence in chief. It was C.B. describing a detail that occurred right before M.F. says the sexual conduct took place. C.B.’s description of what M.F. was wearing is not collateral at all.
[69] In my view, it was part of C.B.’s testimony in chief of what occurred which attempted to cast aspersions on the evidence of M.F. Therefore, I am of the view it can be used to assess his credibility. The fact that he is describing M.F. to be acting in a way that makes no sense at all influences my assessment of his other evidence about the things that are alleged to have happened immediately thereafter while the couple was at H.B.’s house. His testimony about this point had no air of reality. It was consistent with leaving an impression of a witness who has no difficulty just making things up. I find C.B. was embellishing his evidence about this incident at H.B.’s home. I do not believe C.B’s evidence that he did not have sex with M.F. while they were alone at H.B.’s home.
[70] M.F. testified that while in H.B.’s home, C.B. gave her Xanax. I appreciate that the Crown has asked for an acquittal in respect of the charge of administering a noxious substance. I accept that submission. Nevertheless, I find the evidence concerning the drug as important to the narrative concerning the allegation of sexual assault.
[71] In chief, M.F. was very specific about this brand name drug. She was cross-examined about the specifics as to why she was initially clear this was the drug that C.B. had given to her. She said she assumed it was a prescription belonging to H.B. H.B. testified she has never in her life had a prescription for Xanax. However, H.B. did testify that there were prescription drugs in her house which were used by her autistic daughter. These drugs are designed to have a calming effect on her daughter. To the extent these drugs in the house are in the same nature as Xanax, which I understand is used to treat anxiety, I can understand why M.F. would have described what she says was given to her as “Xanax”. I do not accept the defence submission that because H.B. testified there was never a prescription bottle of “Xanax” pills in her house, M.F. is not to be believed that she took some kind of similar prescription substance while in C.B.’s presence at H.B.’s home. M.F. testified C.B. gave her some pills designed to loosen her up while they were at H.B.’s home. I accept her evidence on this point. In my view, this evidence is consistent with an act of a sexual predator attempting to more easily overcome the will of a victim.
[72] M.F. testified that after C.B. gave her the pills, she and C.B. went into a spare room. They began play fighting. That led to C.B. throwing her to a bed and touching her in a sexual manner. Both people took off their pants and underwear. The pair began having sex. At some point, they switched positions so that M.F. was “on top”.
[73] Assessing the evidence of M.F., C.B. and H.B. about the incident at H.B.’s home, I make the following findings. I find C.B. provided M.F with pills from a prescription that was prescribed to someone else. I do not believe C.B.’s denial about this. I find he had brought M.F. to a location where he knew the owner, his mother, would not be pleased with her presence. I find he was with her alone in a bedroom of the house. I find C.B. provided a prescription drug which was not prescribed to her for the purpose of reducing her resistance to his sexual overtures. I find C.B. knew M.F. was underage and could not consent to have sex with him. I find the reason for this 21 year old male to be alone with a 13 year old female in a bedroom for an extended period of time, in a house where he knew she was not welcome, was to have sex with her.
[74] M.F.’s description of the events at H.B.’s home was not given in a way that I took her to be exaggerating or making up details of what occurred. She did not vary from her testimony concerning the essential element of the offence, namely that C.B. intentionally applied force to her and that the force took place in circumstances of a sexual nature.
[75] I find the Crown has proved beyond a reasonable doubt in respect of count 3 of the indictment before the court that C.B. committed a sexual assault on M.F. at H.B.’s home in Nipigon between January 1, 2017, and March 31, 2017, contrary to s. 271 of the Criminal Code. Further, I find the Crown has proved beyond a reasonable doubt in respect of count 6 of the indictment before the court that C.B. did for a sexual purpose touch M.F., a person under the age of 16, directly with a part of his body, to wit, his genitals, contrary to s. 151 of the Criminal Code.
The Incident at S.B. House in Thunder Bay Early February 2017 Count 10 and 11
[76] There was no dispute in the evidence of all witnesses that this alleged incident happened in Thunder Bay sometime in early February. Both C.B. and M.F. had birthdays in February. This assisted both in placing the particular event in context. There was no dispute in the evidence that M.F. and C.B. were alone in the basement of S.B.’s house in Thunder Bay at some point in early February. There was no dispute in the evidence that the reason the pair had gone to the basement was to allow C.B. to assist M.F. with her homework.
[77] S.B. testified. She is C.B.’s older sister. She lives in Thunder Bay. She confirmed the evidence of M.F. and C.B. that at some point they went to the basement to do M.F’s homework. She had occasion to see both of them together in the basement. Some other adult had come to her house to pick up M.F. and take her elsewhere. S.B. testified she poked her head downstairs and saw the pair sitting on a couch together, fully clothed. She told M.F. it was time to go. M.F. came upstairs and left with the adult male.
[78] M.F. testified the pair did more than homework in S.B.’s basement. She testified C.B. gave her a line of cocaine while they were in the basement. She also testified that C.B. sexually assaulted her on this occasion.
[79] C.B. admits being in the basement alone with M.F. at his sister’s house in Thunder Bay. He said it was for a relatively brief period. He denied sexually assaulting her or inappropriately touching her in a sexual manner at any time when the pair was together in S.B.’s house in Thunder Bay.
[80] I am left with a reasonable doubt about the Crown’s proof of an offence on the occasion when M.F. was alone with C.B. in Thunder Bay. M.F.’s testimony was not particularly specific on the point of the assault she alleges to have occurred in Thunder Bay. I have the testimony of S.B. who saw the pair and did not notice anything out of the ordinary. At the time, there was another adult present in the house, namely S.B’s boyfriend. While I find the testimony of C.B. to be largely unbelievable, after assessing all the evidence about this particular allegation, I was not convinced beyond a reasonable doubt that the Crown has proved its case on these two counts.
[81] I note there was a good deal of evidence about interactions between the various witnesses when the parties were in Thunder Bay for a time in February. These were useful in assessing the credibility of C.B. and M.F. about their evidence as to the state of their relationship while they were together in Thunder Bay in February 2017. For example, there was a Facebook message string between M.F. and S.B. that took place from February 6, 2017, to February 17, 2017, that was entered into evidence. To the extent that I can discern anything rationale or “adult” about the messages, it appears it began by S.B. accusing M.F. of stealing jewelry from her house. M.F. denies this. Later in the string, S.B. suggests there may have been a misunderstanding. This exchange buttressed my view that M.F. was credible in her testimony.
[82] There was also evidence of birthday gifts given by M.F. to C.B. on his 22nd birthday when he celebrated it in Thunder Bay in mid-February. One gift given by M.F. to C.B. was a small canvass that said “I love you” in German. C.B. explained that M.F. knew C.B. has some German heritage. M.F. also gave him a 26 ounce bottle of vodka – an unusual gift for a 13 year old to give to a 22 year old and an illegal gift, given the age of the donor. C.B. accepted these gifts. He drank some of the vodka. The actions surrounding the birthday gifts lessened my belief in C.B.’s other testimony given at trial that he did not like to drink. It also affected my assessment of C.B.’s testimony that his relationship with M.F. was only emotional and not sexual. In my view, the Crown has proven beyond a reasonable doubt the couple had had sex on three separate occasions.
[83] C.B. knew M.F. was emotionally vulnerable because of her breakup with her boyfriend. Yet she went to the trouble of making something that said “I love you” in a foreign language, one that is not an official language of Canada. These are not the actions of an unfocused person. I find by giving these gifts, M.F. was exhibiting deeply held feelings for C.B., which one would expect would arise from a circumstance where one person is having sex on repeated occasions with another. M.F. gave C.B. the “I love you” gift because she meant it at the time.
[84] Further, accepting these kinds of gifts at a time when C.B. said he knew about the completely inappropriate look of any relationship between a 13 year old girl and a 21 year old man leads me to assess his testimony about the nature of the relationship as being false. “I love you” are big words, especially from a teenage girl having some significant emotional trauma. For C.B. to accept these gifts confirms for me he was in a relationship that was not “emotional” but rather had included sexual contact. I therefore assess his blanket denials in respect of the incidents I have found to be set out at counts 1, 2, 3, 4, 5 and 6 as not being credible.
[85] C.B. also testified about the pair walking around Thunder Bay with M.F. They walked quite far. They held hands in public. Assessing this action in the context of the respective ages of the pair and where this occurred in the sequence of events, this action by the pair left me with no doubt that C.B. was smitten with M.F. He was oblivious to how wrong it was for an adult to be romantically involved with a minor. He was walking around in public hand in hand with a minor. I draw an inference that it was confirmation of M.F.’s testimony that the couple had had sex previously. The holding of hands in public is one of those very human things that people do when they are in a relationship that is more than platonic. I know this is not a conclusion one can draw about every pair of people seen holding hands in public. However, this is a conclusion I draw on the basis of all the evidence I have heard on the matter. It is one part of a totality.
[86] C.B. was then involved with an incident at a local coffee shop. M.F. and C.B. were sitting in the coffee shop when another adult, related somehow to M.F. and known to C.B. entered the coffee shop and tried to apprehend her. M.F. ran away. C.B. did not actively assist the adult in catching M.F. In the narrative of the relationship between the pair, this was the fourth time someone had come for M.F. and she did not go willingly. For me, C.B.’s non assistance to the other adult leads me to conclude his were actions of an irresponsible, unempathetic predator who actively did not want any responsible adult to know what he was doing with an underage girl.
[87] Accordingly, for the reasons noted above, I find C.B. guilty on counts 1, 2, 3, 4, 5 and 6 on the indictment. I find C.B. not guilty on counts 10 and 11.
[88] During the ZOOM attendance on November 30, 2020, counsel agreed that any conviction on the substantive counts before the court would lead to a conviction on count 9. Count 9 was an allegation that C.B. breached a probation order of the Ontario Court of Justice between January 1, 2017, and March 31, 2017. Based on these submissions of counsel and based on my findings that C.B. committed unlawful sexual acts on M.F. on three distinct occasions, I find C.B. was not of good behaviour during this time period and is accordingly guilty of the offence listed at count 9. I therefore find C.B. guilty of the charge at count 9 of the indictment.
[89] When would counsel like to make submissions as to sentence?
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
Released: January 28, 2021
COURT FILE NO.: CR-18-007-00; CR-19-0078-00
DATE: 2021-01-28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
C.B.
Accused
REASONS FOR JUDGMENT: DELIVERED ORALLY
WARNING
A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING
UNDER S. 486(3) OF THE CRIMINAL CODE OF CANADA
Fitzpatrick J.
Released: January 28, 2021
/lvp