COURT FILE NO.: CR-18-19539
DATE: 2021/12/21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
S.O.
Michael Boyce, for the Crown
Neil F. Weinstein, for the Accused
HEARD: March 1-3, 8-12; April 12-13, 15-16, 21-22, and 26-27; and July 19-23 and 27-28, 2021 (In-person and hybrid of in-person and videoconference proceeding)
SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER PURSUANT TO s. 486.4 OF THE CRIMINAL CODE HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, INCLUDING THE NAMES OF OTHER CROWN WITNESSES SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY.
REASONS FOR DECISION
CORTHORN J.
Introduction
[1] S.O. is charged with four counts of sexual assault (s. 271 of the Criminal Code[^1]), one count of invitation to sexual touching (s. 152), one count of sexual interference (s. 151), and two counts of indecent exposure (s. 173(2)). The charges relate to four complainants: an adult female (“MA”); MA’s daughter (“RM”); MA’s adult female friend (“AS”), and AS’ daughter (“YS”).
[2] The events upon which the charges are based are alleged to have occurred between October 1, 2016 and April 1, 2018. During those years, MA, RM, and MA’s son (“AA”), who is physically challenged, initially lived in an apartment and then moved to a house. AS and YS both stayed at MA’s apartment for a period of time between December 2016 and March 2017. AS eventually secured an apartment in the same building as MA’s apartment. She and YS moved into that apartment.
[3] MA and S.O. were in a relationship during the years in which the events upon which the charges are based are alleged to have occurred. Those events are alleged to have occurred at MA’s apartment, MA’s home, and AS’ apartment.
[4] The trial lasted approximately almost five weeks, with the trial days spread throughout the months of March, April and July 2021. The trial was conducted through a combination of in-person attendances and by videoconference. In March 2021, I presided in person; thereafter, by videoconference only.
[5] MA gave her evidence both in the courtroom and by videoconference, at all times with the assistance of an interpreter. AS gave her evidence in the courtroom.
[6] Both RM and YS gave their evidence by videoconference, from an office within the courthouse, and with a support person present. The court made rulings on two s. 715.1 applications with respect to video-recorded statements given by each of RM and YS to a member of the Ottawa Police Service (“OPS”). The video statements were admitted as part of each of the girls’ respective evidence in chief.
[7] As was his right, S.O. chose not to testify. As part of the defence case, two agreed statements of fact were entered as exhibits. One statement sets out the chronology from April 8 to May 25, 2021 of (a) the complainants’ involvement with the OPS, and (b) the involvement of the Children’s Aid Society (“CAS”) with MA and RM. The other statement addresses RM’s testimony at the preliminary hearing in 2019, including portions of the transcript of her evidence at that hearing.
[8] In broad terms, Defence Counsel submits that, for three reasons, it would be unsafe for the court to make findings of fact based on the evidence of the four complainants:
• There are frailties in the evidence from each of the complainants;
• By the spring of 2018, MA had several motives to seek revenge against S.O., including by having him face criminal charges. The motives are said to include that S.O. had (i) cheated on MA with another woman; (ii) ended his relationship with MA; and (iii) refused to marry MA; and
• MA had some involvement in the development of the allegations made by each of RM, AS, and YS. Defence Counsel submits that MA’s interference in that manner taints the entire case against S.O.
[9] Defence Counsel asks the court to conclude that the Crown has failed to demonstrate S.O.’s guilt, beyond a reasonable doubt, on any of the charges. Defence Counsel asks that an acquittal be entered with respect to each of the eight counts in the indictment.
[10] The Crown’s position is that the evidence does not support the defence theory of MA being motivated by revenge and interfering with or in some way influencing the other complainants:
• With respect to RM and YS, the Crown submits that the entirety of their respective testimony, including the video statements, establishes beyond a reasonable doubt the facts necessary to support a conviction on the charges under ss. 151, 152, and 173(2) other than count no. 8, which relates to YS;
• The Crown acknowledges that there are frailties in MA’s evidence – such as MA’s inability to remember dates and her confusion as between each of the three alleged incidents of sexual assault. The Crown submits that, despite those frailties, MA’s evidence establishes beyond a reasonable doubt that she was sexually assaulted by S.O. on three occasions; and
• With respect to AS, the Crown submits that the evidence does not support a finding that she was in any way influenced by MA to become involved in this matter. The Crown submits that the timing of AS’ disclosure of the incidents upon which the charge of sexual assault is based does not detract from the credibility or reliability of her evidence.
[11] The Crown asks the court to enter a conviction on all counts in the indictment other than count no. 8.
Analytical Framework
[12] S.O. is presumed to be innocent of all of the charges against him.
[13] It is not incumbent upon an individual charged with an offence to assert their innocence through either their own evidence or other evidence called on their behalf. S.O. had the right not to call any evidence. He chose to not to testify; the defence evidence is restricted to the two agreed statements of fact.
[14] For a finding of guilt to be made, the Crown must prove the specific charge beyond a reasonable doubt. That is a heavy burden to be met. It is intended as such to prevent the conviction of innocent persons.
[15] It is not sufficient for the Crown to establish possible, probable, or likely guilt. A reasonable doubt is neither far-fetched nor frivolous. Reasonable doubt does not involve proof to an absolute certainty or proof beyond any reasonable doubt, which is often impossible: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 231. The standard of beyond a reasonable doubt is, however, much closer to a certainty than it is to the civil balance of probabilities standard. In summary, for a finding of guilt to be made, the court must be sure that the offence was committed.
[16] The court is entitled to believe all, none, or some of a witness’ testimony: R. v. Francois, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, at pp. 836-837. The court must carefully consider the credibility and reliability of witness testimony, in light of all of the evidence before it. Credibility relates to the witness’ veracity; reliability addresses the accuracy of the witness’ testimony.
[17] I have considered the credibility and reliability of the testimony of each of the complainants. My assessment of credibility and reliability takes into account that many individuals called upon to give evidence at a criminal trial are not familiar with the process, may never have experienced a courtroom setting, and are required to rely upon their memory of events that transpired a number of years ago.
[18] I am mindful of inconsistencies and contradictions in the testimony of any witness. However, perfection in the testimony of witnesses is not expected and may be suspect.
[19] Consistency is an element of truthful testimony. Minor inconsistencies are also an element of truthful testimony.
[20] Contradictions within a witness’ testimony and those demonstrated through consideration of the witness’ prior accounts of events are important. A meaningful tool in assessing the reliability of an individual’s testimony is to review the consistency of that person’s account, either over time or within the context of their evidence in chief and in cross-examination: R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 12, citing R. v. G.(M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390.
[21] Significant inconsistencies or contradictions are treated much differently than are minor ones. In some circumstances, inconsistencies or contradictions can result in a witness’ testimony being rejected in whole or in part. For example, an inconsistency which involves “something material about which an honest witness is unlikely to be mistaken, [ ] may demonstrate a carelessness with the truth about which the trier of fact should be concerned”: A.M., at para. 13, citing G.(M.), at p. 354.
[22] An inconsistency that relates to a peripheral issue may not have a significant impact on the witness’s credibility. If, however, the witness’ account contains many inconsistencies on a range of peripheral issues, such inconsistencies could fatally undermine the overall reliability of the witness’ evidence.
[23] If the witness’ testimony is internally contradictory, incoherent or simply implausible it is open to the court to find that the witness is not worthy of belief on specific topics or more generally.
[24] I recognize that the potential exists for S.O. to be acquitted on some of the charges and found guilty on one or more of the charges.
[25] Before turning to the evidence, I will review the elements of each of the four offences with which S.O. is charged.
The Offence of Sexual Assault (s. 271)
[26] Section 271 of the Criminal Code does not define sexual assault. In their recent decision in R. v. R.V., 2021 SCC 10, 402 C.C.C. (3d), at para. 51, the Supreme Court of Canada stated that a person commits sexual assault “by applying force intentionally to another person, directly or indirectly, in circumstances of a sexual nature”. The application of force can mean any form of touching: R.V., at para. 52.
[27] Sexual assault is a physical assault of a sexual nature. Whether the assault is sexual in nature is determined based on an objective standard – not on the subjective perspective of the accused. The nature and quality of the act is to be examined objectively: R. v. Marshall, 2017 ONCA 801, at para. 52.
[28] The question of whether the touching was of a sexual nature and violated the complainant’s sexual integrity is answered by looking at all of the circumstances surrounding the alleged assault: R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333, at p. 345. At p. 302 of the decision in R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, McIntyre J. held that the factors to be considered in answering that question include,
• the part of the body that was touched;
• the nature of the contact;
• the situation in which it occurred;
• the words and gestures accompanying the act; and
• all other circumstances surrounding the conduct, including threats that may or may not be accompanied by force.
[29] The Crown is not required prove that the accused had any sexual purpose in touching the complainant or obtained any sexual gratification in doing so: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 25 (citations omitted). The test is whether, when viewed in the light of all of the circumstances, the sexual or carnal nature of an assault is visible to a reasonable observer.
[30] In addition to establishing that the accused committed the act of sexual assault, the Crown must show that the accused intended to touch the complainant (the mens rea component of the offence): R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 41; R. v. Trachy, 2019 ONCA 622, 147 O.R. (3d) 250, at para. 74.
The Offence of Sexual Interference (s. 151)
[31] A person who “for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years” commits sexual interference: s. 151. The intention of this provision is “to protect the sexual integrity of young persons in their interactions with adults”: Trachy, at para. 70. There are two elements to this offence – the physical element or actus reus and the mental element or the mens rea.
[32] The actus reus of the offence is touching the body of a person under the age of 16. RM was under the age of 16 when the offences related to her are alleged to have occurred. If the Crown can prove that S.O. intentionally touched any part of her body, then the actus reus of sexual interference is made out.
[33] The mens rea component is the specific intention to touch for a sexual purpose. The Crown must prove that S.O. specifically intended to touch RM for a sexual purpose: R. v. B.J.T., 2019 ONCA 694, 378 C.C.C. (3d) 238, at para. 37.
[34] The mens rea component of sexual interference was addressed by the Alberta Court of Appeal in R. v. Morrisey, 2011 ABCA 150, at para. 21:
Touching is done for a sexual purpose, if it is done for one’s sexual gratification or to violate a person’s sexual integrity. In determining whether touching takes place in circumstances of a sexual purpose, we are of the view that a trial judge can in assessing the mens rea of the accused, consider whether the sexual context of the touching would be apparent to any reasonable observer. The “sexual purpose” may be proven either by direct evidence, or it may be inferred from circumstantial evidence or from the nature of the touching itself (i.e. the only reasonable inference to be drawn from the circumstantial evidence or from the nature of the touching itself is that the accused committed the touching for a sexual purpose). [Citations omitted.]
[35] It is important to understand that direct evidence of a sexual purpose is not required to establish the mens rea component of the offence. All of the circumstances of the interactions between S.O. and RM may be considered: R. v. Langevin, 2016 ONCA 412, at para. 24. The circumstances may include the nature of the touching and any words or gestures accompanying the act: R. v. B. (J.A.), [2002] O.J. No. 3755 (S.C.), at para. 43. The court will consider whether the circumstances or nature of the touching are such that a sexual purpose is the only reasonable inference.
The Offence of Invitation to Sexual Touching (s. 152)
[36] Section 152 provides that a “person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of 16 years” commits the offence of invitation to sexual touching. The objective of this provision is to prevent sexual exploitation of and interference with young children.
[37] In R. v. Carbone, 2020 ONCA 394, 150 O.R. (3d) 758, the Court of Appeal for Ontario stated, at para. 60, that to convict on a charge under s. 152, the Crown must prove the following:
• The complainant was under 16 years of age;
• The accused invited, counselled, or incited the complainant to touch anyone; and
• The proposed touching was for a sexual purpose.
[38] As with the offence of sexual interference (s. 151), the offence of invitation to sexual touching includes both a physical element (actus reus) and a mental element (mens rea).
[39] For the actus reus, it is important to note that invitation to sexual touching is an offence of communication, not assault. Invitation, incitement, or counselling to sexual touching requires a “positive action by the accused person”, rather than “passive acquiescence”: R. v. D.L.W.[^2], 2013 BCSC 1327, [2013] B.C.W.L.D 6097, at para. 240; R. v. Rhynes, 2004 PESCAD 15, 239 Nfld. & P.E.I.R. 89, at para. 47.
[40] An invitation to touch includes “acts and/or words by which an accused requests, suggests, or otherwise incites or encourages the complainant to touch him for a sexual purpose”, which can be express or implied: Carbone, at para. 61. However, it does not require that the accused initiate either the communication or activity alleged; it is sufficient if the accused does and/or says something in the course of their interaction with the complainant that amounts to an invitation to touch for a sexual purpose: Carbone, at para. 62.
[41] The suggested touching may be direct or indirect, and may be with an object or the body: R. v. G.D.G., 2013 MBQB 244, at para. 94; Rhynes, at paras. 10-11. The suggested touching can be of any person, including either the accused or the complainant: R. v. Legare[^3], 2008 ABCA 138, 89 Alta. L. R. (4th) 1, at para. 33.
[42] Actual touching is not necessary to satisfy the actus reus: Legare, at para. 36.
[43] With respect to the mens rea requirement, the Crown must prove beyond a reasonable doubt that the accused (a) knowingly communicated with a child under the age of 16 for a sexual purpose, and (b) intended either that the child would receive the communication as an invitation, incitement, or counselling to sexual touching or that there was a substantial and unjustified risk of such: Legare, at para. 41.
[44] The Crown must establish the specific intent on the part of the accused that the invitation to touch was done for a sexual purpose. A sexual purpose in the context of section 152 and its related offences has been interpreted to include “touching done for an accused’s own gratification, the gratification of a complainant, or such touching that, objectively considered, violates the sexual integrity of a child”: G.D.G., at para. 100.
The Offence of Indecent Acts/Exposure (s. 173(2))
[45] Section 173(2) provides that a “person who, in any place, for a sexual purpose, exposes his or her genital organs to a person who is under the age of 16 years” commits an indecent act.
[46] In R. v. McColeman, 2017 ONSC 4019, the court identified the elements of the offence under s. 173(2), at para. 414, as follows:
• The complainant was under 16 at the time of the incident;
• The accused exposed his or her genitals to the complainant; and
• The exposure was for a sexual purpose.
[47] Once again, this is an offence which involves an actus reus and mens rea. The actus reus is that the accused exposed their genitals to a person under the age of 16: R. v. Berhe, 2011 ONSC 6815, at para. 28.
[48] The mens rea for this offence is a specific intention, on the part of the accused, to expose their genitals for a sexual purpose: Berhe, at para. 29. The Crown must prove that the exposure was willful, as opposed to accidental: R. v. Gipp, 2020 ONSC 5522, at paras. 21-22. It is, however, sufficient if the Crown establishes that the accused could have foreseen the certainty or substantial certainty that their genitals would be seen by a person under the age of 16: Berhe, at para. 36.
The Evidence of Children
[49] In April 2018, RM was nine years old; when testifying at trial in 2021, she was 12 years old. YS was seven in April 2018 and 11 in 2021 when she testified at trial.
[50] In the past 30 or more years, the approach to be taken when assessing the credibility of child witnesses has evolved. That evolution was discussed by Wilson J. at para. 48 of the Supreme Court of Canada decision in R. v. B.(G.), 1990 CanLII 113 (SCC), [1990] 2 S.C.R. 3:
While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children.
[51] In considering the evidence of RM and YS, I follow the direction provided by the Court of Appeal for Ontario at paras. 43-44 in R. v. L.O., 2015 ONCA 394, 324 C.C.C. (3d) 562. I consider (a) the entirety of their respective testimony, including the video statements and the in-court testimony, and (b) whether any consistencies or inconsistencies within the entirety of their testimony sheds light on the reliability of their evidence.
[52] I turn to the evidence of RM and YS as it relates to count nos. 5 through 8.
The Evidence of RM and YS
[53] RM’s evidence consists of the statements made in her April 17, 2018 interview with the OPS and her testimony at trial.
[54] In her video statement, RM describes five incidents which, for ease of reference throughout this trial, have been referred to by the following names:
• The shower incident;
• The towel incident;
• The Facebook incident;
• The kitchen incident; and
• The masturbation incident.
[55] During her in-court testimony, RM gave evidence about an incident or incidents which she did not disclose in her video statement. For ease of reference, that incident or those incidents were and continue to be referred to by the singular name, “the bedroom incident”.
[56] YS testified about the shower incident and the Facebook incident.
[57] I deal with each of the incidents in the order in which they are listed above.
▪ The Shower Incident
[58] In their respective video statements, RM and YS describe an incident that occurred when S.O. was taking a shower at MA’s apartment. In summary, the girls describe entering the bathroom – YS first and, shortly thereafter, RM – when S.O. was taking a shower. There is no evidence that, prior to entering, either of the girls asked S.O. for permission to enter or alerted him to the fact that they would be entering the bathroom.
[59] Based on the evidence of RM and YS, I find that the shower incident occurred as follows:
• While showering, S.O. became aware that someone entered or that something was happening in the bathroom;
• From behind the shower curtain, which was opaque, S.O. spoke to inquire as to who was there or what was going on;
• Neither of the girls responded to S.O.’s inquiry; and
• Having received no response, S.O. opened the curtain with the result that the girls saw him standing naked in the shower.
[60] In closing, the Crown acknowledged that the evidence regarding the shower incident does not support a conviction on count nos. 7 and 8 (both s. 173(2)). I agree. The requisite elements of the offence of genital exposure, pursuant to s. 173(2), are not made out with respect to the shower incident.
▪ The Towel Incident
[61] In her video statement, RM describes an incident which is separate from the shower incident. RM’s evidence in chief is that the towel incident occurred on a day when YS was visiting the apartment and at a time when MA had left the apartment to throw out the garbage.
[62] In the video statement, RM describes that she and YS were playing a game in an internal hallway of the apartment while S.O. was taking a shower. RM’s evidence is that S.O. came of the bathroom into the hallway wearing only a towel. RM and YS each commented to S.O. about him doing “disgusting things” or being “disgusting sometimes”. RM’s evidence is that S.O. responded by saying, “What disgusting things? I don’t do nothing” – following which he opened his towel.
[63] In her video statement, YS makes no mention of the towel incident. During the in-court portion of her testimony, YS gave no evidence with respect to this incident.
[64] The Crown submits that RM’s evidence with respect to the towel incident supports a finding that it occurred as a discreet incident, separate from the shower incident. I disagree.
[65] For the following reasons, after considering the totality of RM’s evidence with respect to the towel incident, I am left with a reasonable doubt as to S.O.’s guilt with respect to count nos. 7 and 8 (both s. 173(2)) in relation to both girls and this incident.
[66] First, both in chief and in cross, RM testified that she now remembers the shower incident and the towel incident to be the same, singular incident. She described remembering the towel incident “a little bit, but not fully”.
[67] Second, both in chief and in cross, RM testified that she could not be certain that S.O. removed his towel. Her evidence is that either the towel fell off or that S.O. shook the towel. In cross, RM conceded that the towel could have fallen off by accident.
[68] RM’s uncertainty as to an accidental or intentional removal of the towel, alone, is sufficient to leave me with a reasonable doubt as to S.O.’s guilt of an offence under s. 173(2) in relation to the towel incident.
[69] Third, during her in-court testimony, RM was unable to recall where S.O. was when she and YS saw S.O.’s penis (i.e., after the towel was removed intentionally or by accident). RM is uncertain as to whether S.O. was still in the bathtub or had exited the bathroom and was in the hallway. She is also uncertain as to whether she and YS were in the hallway or in the bathroom when they saw S.O. in a towel.
[70] Last, I turn to a matter that contributes not only to my reasonable doubt with respect to this incident, but also to my general concern with respect to the reliability of RM’s evidence. RM’s description of the towel incident includes each girl making a comment about S.O. doing or being “disgusting”.
[71] RM’s evidence is that when she met with the Crown and the investigating officer in February 2021, to prepare for her appearance at trial, she informed them that she did not confront S.O. in the manner described in her video statement. RM also told them that she did not use the word “disgusting”; she did not know that word in April 2018, when she was only nine years old. At trial, RM was clear in identifying that she no longer remembers her use of the word “disgusting” as part of the towel incident.
[72] On the s. 715.1 application, the Crown described RM’s use, or not, of the word “disgusting” as a peripheral matter. I find that the use of the word “disgusting” and the confrontation are not peripheral to the towel incident, they are part of it.
[73] I turn to the next incident.
▪ The Facebook Incident
[74] In their respective video statements, RM and YS describe an incident that is alleged to have occurred in the living room of either the apartment or the house. Their respective descriptions of the event differ. For example, RM’s evidence is that YS was not present when the Facebook incident occurred. As another example, YS, whose evidence includes that she was present for this incident, describes S.O. exposing his penis; RM’s description does not include genital exposure.
[75] I first summarize RM’s description of this incident. RM became bored playing in her room, so she went to the living room. She saw S.O. lying on the couch with his phone. S.O. said that he was “going on Facebook.” While clothed, S.O. twice asked RM to touch him in his genital area. RM refused both times. S.O. grabbed RM’s hand and placed it on his penis.
[76] I have several concerns about the reliability of RM’s evidence with respect to the Facebook incident. First, RM acknowledged that her memory of the Facebook incident is kind of “fuzzy”. In cross, she testified that she does not know if she is mixing up the Facebook incident with the kitchen incident; she acknowledged that she might be doing so. RM’s evidence is that her current memory of the masturbation incident is clearer than her current memory of the Facebook incident.
[77] Second, there is an inconsistency as to what S.O. was wearing at the time of this incident. In her video statement, RM describes that, when S.O. grabbed her hand and placed it on his penis, he was wearing only underwear; he had lowered his pants. When testifying in court, RM recalled that S.O. was wearing jeans, which had not been lowered, when he touched his penis with her hand. RM’s current uncertainty about what S.O. was wearing at this time is reflected in the following passage in her evidence in cross-examination: “I think I meant the jeans, but I said underwear … How I remember it now that he had jeans, but maybe he had underwear.”
[78] I turn next to YS’ evidence about the Facebook incident. In her video statement, YS describes an incident that occurred when she was visiting with RM and went to the kitchen to get a snack. In summary, YS describes going from the kitchen to the living room and observing S.O. exposing his penis to RM. YS screamed, left the living room, and went to RM’s bedroom where she remained.
[79] When testifying in court, YS was unable to recall whether S.O.’s pants were pulled down before or after she entered the living room. She was also unable to recall both whether S.O. was seated or standing and where he was located in relation to RM. YS recalled that RM was seated on the couch. YS was unsure but believes that RM and S.O. were facing one another.
[80] Leaving aside the significant differences between the incident as described by each of the girls, there are inconsistencies in YS’ evidence about this event. The first inconsistency is as to where this incident occurred. In chief – both in her video statement and in court – YS testified that the Facebook incident occurred at MA’s home. In cross, YS testified that she is “pretty sure” that this incident did not occur at MA’s home.
[81] The second inconsistency is with respect to why YS went to the living room. In chief, YS testified that she went to the living room to ask RM what she wanted. I infer that YS meant what RM wanted in the way of a snack. In cross, YS’ evidence was that she has “no idea at this point” why she went to the living room.
[82] Last, YS is uncertain as to whether S.O. was aware of her presence in the living room at the time of this incident. In the video, YS says, “he wasn’t showing it to me but he … was showing it to RM but I saw it.”
[83] The Facebook incident is relevant to count nos. 5 and 7 (ss. 152 and 173(2) in relation to RM) and count no. 8 (s. 173(2) in relation to YS). I deal with those counts in the reverse order.
[84] Based on YS’s description of the Facebook incident and RM’s evidence that the Facebook incident occurred when YS was not present, I find that the Crown has not established, beyond a reasonable doubt, S.O.’s guilt on count no. 8 (s. 173(2)). At a minimum, the Crown has not established beyond a reasonable doubt that S.O. had the requisite intention to expose his penis to YS.
[85] YS is not alleged to have been involved in any other events giving rise to the charges against S.O. Based on the findings made in the preceding paragraph and in the sections of these reasons related to the shower incident and the towel incident, I find that the Crown has not established beyond a reasonable doubt S.O.’s guilt on count no. 8 (s. 173(2) – in relation to YS).
[86] Turning to count nos. 5 and 7, I am mindful of the approach to be taken with respect to the evidence of child witnesses. The standard of proof, however, is not lowered because the complainant is a child. A single inconsistency in RM’s evidence might not have the same impact as could a single inconsistency in the testimony of an adult. There are, however, several inconsistencies in RM’s evidence that cause me concern. RM’s acknowledgement that she may be confusing the Facebook incident and the kitchen incident also causes me concern.
[87] The concerns that I have with respect to RM’s evidence about the Facebook incident rise to the level of reasonable doubt. I find that the Crown has not established, beyond a reasonable doubt, S.O.’s guilt with respect to the Facebook incident as it relates to count nos. 5 and 7 (ss. 152 and 173(2) – both in relation to RM.
▪ The Kitchen Incident
[88] In her video statement, RM describes an incident in which she and S.O. were in the kitchen while her mother was still sleeping. RM describes S.O. as pulling his pants and underwear down and asking her if she liked it. In chief, RM testified that, “I don’t think it’s true or I don’t remember it exactly.” She added that she does not recall the incident today. Lastly, she added, “I think I was just nervous, so I was just saying random things about that part.”[^4]
[89] When asked what she meant about being nervous and saying random things, RM testified that she “made a little bit of things up”[^5]. For example, she did not, as described in the video statement, go to the kitchen to get breakfast, with S.O. being in her way as she tried to get a spoon.
[90] The Crown downplays the significance of this aspect of RM’s testimony. The Crown submits that when the video statement is considered in its entirety, it is clear that RM was not intentionally lying; she was clearly doing her best to tell the truth. Given RM’s acknowledgement in cross that she knew, even as she was giving her statement to the OPS, that she was saying things that weren’t true, I do not agree with the latter submission.
[91] In chief, RM’s evidence as to how she conducted herself when giving the video statement is as follows:
• “I think I was trying to remember.”[^6]
• “I think, when I was young, I wouldn’t lie to anyone. I didn’t know even – but …”[^7]
• “So I tried to tell the truth I think.”[^8]
[92] RM’s evidence, from a later portion in cross, includes that she knew, when giving her statement to the OPS, that some of the things she was saying were made up.[^9] RM acknowledged that some of the things she was telling the OPS were true and some of them were made up.[^10]
[93] The Crown asks the court to accept as RM’s explanation, given during re-examination, for the term “made up” as it relates to the kitchen incident and her evidence generally. The Crown submits that the explanation supports a conclusion that RM was not making things up or lying when she gave her statement to the OPS.
[94] The portion of RM’s evidence in re-examination upon which the Crown relies in that regard is set out at pages 18 and 19 of the transcript from April 22, 2021. Given the importance placed by the Crown on that exchange. I set it out below in its entirety:
Q. You were asked by Mr. Weinstein about talking in your video statement about going to Toys R Us, right?
A. Yeah.
Q. And you – you said to Mr. Weinstein that you talked about going to Toys R Us in the statement with [the OPS] because you thought that you were being asked to talk about what you and [S.O.] like to do together. Do you remember saying that to Mr. Weinstein?
A. Yeah.
Q. Okay. So, why do you say then that the Toys R Us part in the statement is made up? When you- when you talk about the term “made up”, what do you mean by that?
A. Okay, like so like she like when I was talking about like Toys R Us that time, I said that it wasn’t true that like he said, “Oh, do you – like keep this a secret and I’ll take you to Toys R Us or something”. I said that wasn’t true. But like if [the OPS investigator] was talking about what we like to do or like what we said as a family or something, like he would like take me like out and stuff and that’s what I meant I think.
Q. Okay.
A. But I maybe didn’t hear her properly.
Q. So, I want to understand what you mean when you say, “made up”? I want to know if you mean made up on purpose or made up, or said something by accident in your statement?
A. I think because I either heard wrong or by accident maybe.
Q. When Mr. Weinstein was asking you about some, you know, he showed you some examples, he asked you if you made them up, and you said you were nervous and you might have made up a little bit of things, what do you mean by – how would – you being nervous make you make up a little bit of things?
A. I don’t know.
Q. Okay.
A. I just remember saying things that weren’t really true.
[95] I find that RM’s explanation with respect to not having heard the OPS investigator properly or saying something by accident applies only to the portion of her video statement with respect to Toys R Us. I find that her in-court evidence, “I just remember saying things that weren’t really true”, is intended to apply in general to the video statement; that statement is not restricted only to the Toys R Us evidence.
[96] I also consider that later, in cross, RM offered another explanation as to what she meant by being nervous and saying, “random things”. At that point in her testimony, RM said, “Yeah. But I don’t think I meant ‘random’. I meant, like, only a few things I said that I don’t – that was like made up, but like I still remember some part … Oh, I said that I don’t remember. I only remember saying like some made up stuff, but I remember like talking about like the incident, but like I don’t remember some parts.”[^11]
[97] Last, I consider RM’s evidence with respect to her discussion with the Crown and the OPS investigator in February 2021, when preparing to attend court. RM could not remember the specifics of her discussion with them about the kitchen incident. Her evidence is that it is possible that during that meeting she told the Crown and the OPS investigator that the kitchen incident might not be true; it’s possible that she did so because she “just thought [the kitchen incident] wasn’t true.”[^12]
[98] In assessing the overall reliability of RM’s evidence, I have considered the following:
• RM recalls that when giving her statement to the OPS she said things that were not true.
• Understandably, RM’s current memory of the incidents she was attempting to describe in 2018, and which occurred in a year or two prior, is not as clear as was her memory in April 2018.
• RM no longer recalls some of the incidents described in the April 2018 video statement. For example, she no longer recalls the kitchen incident.
• RM recalls some incidents differently now than she did in 2018. She acknowledges that she may be confusing one incident with another.
[99] I agree with the Crown that RM did not appear to be over-reaching in her testimony and that she was prepared to acknowledge when she did not remember something. Those qualities in her evidence are not sufficient, however, to reduce or eliminate the concerns listed above with respect to RM’s overall reliability as a witness.
[100] The concerns with respect to the reliability of RM’s evidence regarding the kitchen incident and those with respect to her overall reliability as a witness are such that I am left with a reasonable doubt as to S.O.’s guilt on count no. 7 (s. 173(2)) involving RM and the kitchen incident.
▪ The Masturbation Incident
[101] In closing, the Crown acknowledged and I agree that, even if RM’s evidence with respect to the masturbation incident is fully accepted, S.O.’s conduct as described does not support a conviction under any one of count nos. 5, 6 and 7 (ss. 152, 151, and 173(2)) – all of which relate to RM.
[102] Regardless, the Crown asks the court to consider RM’s description of the masturbation incident as an indicator of the overall reliability of RM’s evidence. I consider the Crown’s request in that regard against the backdrop of RM’s acknowledgement that she may be confusing the Facebook incident and the masturbation incident.
[103] RM’s evidence is that the masturbation incident occurred when MA had been taken by ambulance to the hospital following an episode of chest pain. RM’s brother went to the hospital with MA, leaving both S.O. and RM behind. RM testified that she was hungry and went to MA’s room to speak to S.O. When she arrived, the door to the room was open. RM entered the room and saw S.O. standing in front of a mirror with his eyes closed. RM’s evidence is that S.O. was not aware that she was present.
[104] RM testified that she saw S.O. take his penis and begin rubbing it with his thumb. When she asked S.O. what he was doing, he responded that she was not supposed to be in the room and told her to leave. In cross, RM described S.O. as “surprised and angry.”[^13] Her evidence is that S.O. shut the door and that, despite the closed door, she could hear the “popping noises” of him continuing to rub his penis with his thumb.
[105] I deal next with the bedroom incident, the only incident about which RM testified which was not disclosed in her video statement to the OPS.
▪ The Bedroom Incident
[106] RM is uncertain whether the bedroom incident occurred in the apartment or in the house. RM’s initial description of the bedroom incident was as follows:
So, maybe once or twice he would come in my room and then he would like – he was like drunk or something, and then he would like tell me to like pull my pants down and he would touch my waist, and I always tried moving, but then he was just like bullying or something, but then after I would tell him to leave me alone and I was telling my mom. Then he’ll stop. After asking like, “Go away” and stuff.[^14]
[107] With respect to her description of S.O. as “drunk or something”, RM testified that he said, “Oh, I’m drunk” and swayed somewhat from side to side with his eyes partially closed. It was also her evidence that she thought he was drunk because he said, “Oh, do you like this?”[^15] In chief, RM did not recall what was happening when S.O. said that. In cross, her evidence was that she was not really sure what S.O. was talking about and that it might have been something bad or might have been something not bad.[^16]
[108] RM distinguished between the incident when S.O. was drunk and another incident when he came to her bedroom and was successful in pulling her pants down. [^17] RM described S.O. using two hands in an effort to pull down her pants. Her evidence is that she pushed his hand away, pulled up her pants, and left her bedroom. Her evidence is also that she said, “Oh, like, why are you doing that?” and “That’s disgusting”.[^18]
[109] As to how many times an incident of this kind happened, RM testified as follows: “Maybe – maybe once or twice. I’m not sure.”[^19] She distinguished between the time when she thought S.O. was drunk and the time when he was successful in pulling her pants down. In chief, RM was asked whether she remembered “any more details of the other times that this happened, other than the one where he actually got your pants down.” Her response was: “The one where I said that he was drunk and that time. That’s all I remember.”[^20]
[110] I am unable to reconcile RM’s uncertainty, acknowledged by her several times, as to how many incidents comprise the bedroom incident with her ability to otherwise distinguish between what she describes as two discreet incidents (the drunk one and the pants one). That inconsistency causes me concern as to the reliability of RM’s evidence about the bedroom incident.
[111] I also question the reliability of RM’s evidence with respect to the bedroom incident because of the inconsistency and/or uncertainty about whether S.O. touched her waist. In cross, RM acknowledged that she was not sure that S.O. actually touched her waist – it might have happened or it might not have happened.[^21] In re-examination, RM’s evidence was that she knew that S.O. had touched her somewhere around her stomach or her back and that is why she “thought he would touch [her] waist”; she acknowledged that she is not one hundred percent sure.[^22]
[112] I am also concerned about the reliability of RM’s evidence about the bedroom incident because of the manner in which RM testified about whether this incident involved S.O. attempting to show his penis to her. She initially testified that she knew that this incident had something to do with him attempting to pull out his penis. [^23]I contrast that initial certainty with RM’s evidence, in cross, including (a) her concession that she does not have a current memory of S.O. attempting to pull out his penis, and (b) her statement, “Um, I don’t remember that much”.[^24]
[113] Last, there is an inconsistency between RM’s evidence about what she said at the time of the bedroom incident and her evidence about what she did not say at the time of the towel incident:
• With respect to the towel incident, RM testified that she would not have used the word “disgusting” because she did not know what it meant. RM raised the use of that word with the Crown and investigating officer in February 2021.
• By contrast, and without qualification, RM testified that she used the word “disgusting” in communication with S.O. at the time of the bedroom incident.
[114] For those reasons, I find that the Crown has not established, beyond a reasonable doubt, S.O.’s guilt with respect to count nos. 6 and 7 (ss. 151 and 173(2)), as they relate to the bedroom incident.
▪ Evidence Considered as Untainted
[115] I emphasize that with respect to count nos. 5 to 8 – the charges related to RM and YS – I considered the complainants’ respective evidence on the basis that it was not tainted by MA’s motivation or conduct. Put another way, regardless of the defence theory of motive and tainting, I would still reach the same conclusions with respect to count nos. 5 to 8.
The Evidence of MA
[116] S.O. is charged with three counts of sexual assault (s. 271) in relation to MA (count nos. 2, 3 and 4). MA testified over the course of nine days in March and April 2021.
[117] Defence Counsel submits that MA’s evidence with respect to the three alleged sexual assaults does not support a conviction, because that evidence is “rife with contradictions”. Defence Counsel submits that the contradictions go to the core of the allegations with respect to each of the three alleged sexual assaults.
[118] The Crown submits that, regardless of the frailties in MA’s descriptions of the three alleged sexual assaults, the evidence establishes beyond a reasonable doubt that S.O. sexually assaulted MA on three separate occasions.
[119] Defence Counsel also asks the court to consider the following matters:
• MA’s acknowledgement that she was dishonest in the past – for example, when discussing her relationship with S.O. with the OPS, the Montfort Hospital staff, her family physician, and her counsellor. Defence Counsel submits that MA professed to historical dishonesty because doing so serves her current purpose in pursuing charges against S.O.;
• In the context of narrative and logical cogency, the point in time at which MA chose to involve the police and her motivation for doing so; and
• The impact of MA’s conduct on the reliability and credibility of each of the other complainants as witnesses.
[120] In this section of the reasons, I deal only with MA’s substantive evidence related to (a) the three alleged sexual assaults, or (b) the nature and extent of her disclosure to the OPS and health professionals (i.e., the first bullet point listed above).
▪ Timelines and Definitions
[121] MA testified that she has difficulty remembering dates. Despite that difficulty, MA was able to provide a timeline for each of the three alleged sexual assaults. A framework was established with MA agreeing as follows: the first alleged sexual assault occurred in early 2017 (“the first incident”); the second in November 2017 after MA returned to Ottawa from visiting her family in Turkey (“the second incident”); and the third several days before MA attended the hospital in early 2018, at which time she learned that she had suffered a miscarriage (“the third incident”).
[122] The Crown and Defence Counsel were both careful to establish that MA understood the definition or meaning of terms that would be repeatedly used in their respective questions and which they anticipated would form part of MA’s evidence. For example, it was established that when MA testified about sexual activity “from the front”, she meant vaginal intercourse. As another example, it was established that when MA said “from the back” she meant vaginal intercourse from the side or the back. As a final example, “anal penetration” was distinguished from vaginal intercourse from the back.
[123] The online Oxford Dictionary defines “rife” as having several meanings, including “widespread”. I find that the inconsistencies and contradictions in MA’s evidence about each alleged sexual assault are widespread. They include (a) contradictions between her evidence at the preliminary hearing and her evidence at trial, and (b) inconsistencies in her evidence at trial. I do not intend to address every such contradiction or inconsistency. I will deal with them in summary fashion.
▪ The First Incident
[124] In chief, MA’s initial description of the first incident is of a physical altercation that included S.O. choking her, flipping her onto her abdomen, and anally penetrating her. MA testified that this incident was interrupted because RM, having heard MA scream, knocked on the door to the master bedroom. MA’s evidence is that, but for the interruption, S.O. wanted to continue the anal penetration.
[125] I contrast that description with MA’s description of the first incident during her evidence at the preliminary hearing. In cross at trial, MA acknowledged that at the preliminary hearing she testified that the first incident was “from the front because I don’t accept him penetrating. He always asks and I don’t let him.” At a later stage in cross at trial, MA testified that the first incident was “from the front, yes.”
[126] MA’s evidence with respect to the first incident also provides an example of an inconsistency in her evidence at trial. In contrast to her description in chief of the first incident being interrupted, in cross, MA testified that the first incident included S.O. continuing the anal penetration until he had satisfied himself and stopped.
▪ The Second Incident
[127] With respect to the second incident, the inconsistencies and contradictions in MA’s evidence, including their evolution from the preliminary hearing to evidence in chief and thereafter in cross at trial, are numerous. The subject-matters to which those inconsistencies and contradictions relate include the following:
• Whether or not the incident involved anal penetration;
• Whether S.O. turned MA over by force so that he could anally penetrate her;
• If the second incident involved anal penetration, whether on that occasion S.O. asked MA if he could anally penetrate her;
• If the second incident involved anal penetration, whether the anal penetration was deliberate on S.O.’s part or accidental; and
• If the second incident involved anal penetration, whether during the activity S.O. asked MA for permission to continue and she said no and/or whether she screamed so as to cause S.O. to stop the activity.
[128] I turn to the third incident.
▪ The Third Incident
[129] The inconsistencies and contradictions with respect to the third incident are also numerous. As an example, they include whether the third incident involved any consensual vaginal intercourse.
[130] In chief, MA testified that no part of the third incident was consensual. Her evidence is that the third incident started with S.O. shoving his penis into her vagina, from the front and without any planning or request of her for sex; the incident involved vaginal intercourse throughout. By contrast, at the preliminary hearing, MA’s evidence was that the third incident began with vaginal intercourse from the back.
[131] At one point in cross, MA denied that she had in fact testified at the preliminary hearing that the third incident began with a consensual sexual activity. To be clear, MA denied having given evidence which she previously acknowledged she gave, and which she was aware was being put to her based on the transcript from the preliminary hearing.
[132] In addition to denying that she had testified as recorded in the preliminary hearing transcript, MA offered several explanations for her testimony at the preliminary hearing. The variations in or, put another way, evolution of MA’s evidence with respect to the third incident give rise to concerns about MA’s credibility as a witness – as do the explanations offered by MA for her evidence at the preliminary hearing.
[133] One such explanation was that “if” MA testified at the preliminary hearing that the third incident began with a consensual sexual activity, she meant that it was “okay” in the sense that she simply wanted to get the activity over with. As part of this explanation, MA reverted to testifying that she was telling the truth at the preliminary hearing when she said that the third incident began with a consensual sexual activity.
[134] That explanation includes that in MA’s mind she was consenting to the sexual activity. The explanation concludes with MA’s evidence that, even though she expressed her consent to S.O. by saying “yes” to the sexual activity at the start of the third incident, she was not consenting and S.O. knew she was not consenting. At a later point in cross, MA testified that on this same occasion she was pretending to consent.
[135] MA’s evidence on the issue of consent with respect to the third incident, when combined with MA’s difficulties in differentiating between the first, second, and third incidents, is such that the court is left with a reasonable doubt that the Crown has established that any one or more of the incidents was non-consensual.
[136] MA’s evidence with respect to the third incident also gives rise to further inconsistencies in her evidence with respect to the first and second incidents. For example, within close proximity in cross, MA gave the following evidence with respect to which of the three incidents involved anal penetration:
• There was anal penetration during the first and second incidents;
• There was no anal penetration during either of the first or third incidents; and
• There were two incidents which involved anal penetration, one of which was deliberate and the other of which was accidental or unintentional. Ultimately, MA testified that she could not identify which of the incidents involved deliberate anal penetration and which involved accidental or unintentional anal penetration.
[137] There are other portions of MA’s evidence which cause me concern with respect to her credibility. I turn next to those portions of the evidence.
▪ Other Evidence
[138] A series of MA’s healthcare records for the period May 2017 through January 2018 are in evidence. I find that there are inconsistencies in MA’s evidence with respect to the contents of the healthcare records. Those inconsistencies (a) arise in the context of MA’s purported reluctance to disclose, to healthcare professionals, the state of her relationship with S.O., and (b) add to my concerns about MA’s credibility as a witness.
[139] I emphasize that the inconsistencies are not significant because of their subject matter; I do not consider them in terms of a reluctance to report per se. I am not invoking stereotypes and myths. I consider MA’s evidence in this regard simply as another example of an inconsistency in the evidence.
[140] For example, MA’s evidence is that she attempted to cover up injuries as a result of one or more of the incidents by attributing her condition or symptoms to some other cause. MA testified that instead of reporting anal pain or injury resulting from an incident that involved anal penetration, she reported experiencing constipation – specifically to her family physician.
[141] Yet, in records said to be of visits following close in proximity to any of the incidents, there is no mention whatsoever of MA reporting experiencing constipation. That is but one example of how MA’s explanation of attempting to ‘cover up’ injuries sustained as a result of an incident is not borne out by the contents of the healthcare records.
[142] There are also inconsistencies in MA’s evidence as to the injuries that she suffered as a result of the incidents. As an example, I point to MA’s evidence with respect to whether or not she sustained bruising as a result of the first incident. I find that there is a contradiction between her evidence in that regard at the preliminary hearing and her evidence at trial. At the preliminary hearing, MA’s evidence in chief was that she did not suffer bruising as a result of that incident. At trial, MA’s evidence was that she suffered bruising to multiple body parts.
[143] Also troubling is MA’s attempt to explain that contradiction. In cross at trial, MA testified that she gave an incorrect answer to the relevant question at the preliminary hearing. She gave three or four different explanations for why she answered the question incorrectly at the preliminary hearing. Those explanations include the manner in which the question was posed at the preliminary hearing. The transcript of the relevant portion of the preliminary hearing does not, however, substantiate that explanation.
[144] These are only two of the several inconsistencies in MA’s evidence with respect to injuries sustained as a result of the incidents.
[145] One of MA’s explanations for the lack of reporting the incidents to a healthcare professional is that she was reluctant to involve or have her family physician involve the police in her relationship with S.O. That explanation does not, however, ring true when considered in light of MA involving the police in May 2017 and on March 14, 2018.
[146] On both occasions, MA reported to the police that S.O. was verbally abusive. Following the May 2017 call to the police, MA expressed to a healthcare professional at the Ottawa Hospital that she was relieved that the police were involved. On March 14, 2018, MA reported to the police that S.O. had never been physically abusive.
[147] MA’s explanation for her lack of disclosure of the incidents to both the healthcare professionals and the police is that she was lying at the time. That history of admitted dishonesty, the purpose of which is not borne out by the broader evidence, contributes to my concerns about MA’s credibility as a witness.
[148] MA was prepared to involve the police in the couple’s life on a third occasion. MA’s evidence is that she attended at the police station to make a report about threats received from S.O.’s ex-wife. MA testified that she was encouraged by S.O. to make a report about his ex-wife and that he was the one who drove her to the station to make the complaint. That evidence is contradictory to MA’s testimony about S.O. directing her not to involve the police in their lives.
[149] What is the court to make of the inconsistencies and contradictions in MA’s evidence?
▪ Analysis and Conclusion
[150] In closing, the Crown submitted that if a reasonable doubt arises with respect to the three sexual assaults alleged to have been committed against MA, it would be because of issues related to MA’s credibility, not her reliability, as a witness. The Crown described the issue as being a matter of MA’s truthfulness.
[151] I accept that MA has difficulties with dates. For that reason, both the Crown and Defence Counsel established and followed the same framework with MA as to the timing of the three incidents. I find that MA’s difficulty with dates does not explain her confusion and inability to consistently describe how each incident occurred.
[152] MA attributed some of her confusion in describing the three incidents to having received threats – including to her family members – both when testifying at the preliminary hearing and when testifying at trial. There is evidence before the court of threats of a serious nature received by MA when she was testifying at trial. The evidence is that the threats were to the safety of MA and her children.
[153] I accept that testifying while under threat would add to the stress that an individual would otherwise experience when giving evidence at trial. I find, however, that the additional stress arising from the receipt of threats, even those as serious as the ones that MA received, is an explanation for some but not all of the inconsistencies and contradictions in MA’s testimony about the incidents.
[154] The Crown submitted that MA was consistent in her description of the three incidents because she never resiled from her description of two incidents involving anal penetration and one incident involving vaginal penetration. That is not, however, an accurate description of MA’s evidence. As I have already indicated, at one point MA testified that there was no anal penetration during either the first or the third incidents.
[155] In summary, the nature and number of the inconsistencies and contradictions in MA’s evidence about the three incidents are such that I have significant concerns about both her credibility and her reliability as a witness. Those concerns are compounded by the nature and number of inconsistencies in MA’s evidence with respect to the contents of the healthcare records, what she chose to report to healthcare professionals and why, the injuries she alleges she suffered as a result of the incidents, and her reluctance to involve the police.
[156] Last, I consider the manner in which MA responded to questions – whether in chief or in cross. In part, MA’s testimony took nine days to complete because she frequently obfuscated or gave non-responsive answers. Her non-responsive answers were tangential, lengthy and, at times, indicative of a persistent effort on MA’s part to portray S.O. as an individual with a bad character. In addition, many of MA’s answers were incoherent.
[157] I also consider MA’s attempts, on several occasions, to attribute the contradictions between her evidence at trial and her evidence at the preliminary hearing to the manner in which questions were posed of her at the latter. I find that MA’s attempts in that regard were, at minimum, misguided.
[158] On at least one occasion, in cross, MA testified that she was getting “lost” because the interpreters sometimes get lost and do not “give us the answer accordingly”. MA was reminded by the court on at least two occasions, that the interpretation was being provided by court-accredited interpreters.
[159] For all of those reasons, I am left with a reasonable doubt as to S.O.’s guilt with respect to count nos. 2, 3 and 4. It is important to emphasize that I have considered MA’s evidence with respect to count nos. 2, 3 and 4 as if unaffected by motive. Put another way, regardless of the defence theory of motive, I would still reach the same conclusion with respect to count nos. 2, 3 and 4.
▪ MA’s Motivation in the Spring of 2018
[160] The defence theory is that MA was motivated by revenge to have S.O. charged with criminal offences. That motivation is said to stem from S.O. (a) cheating on MA with another woman, (b) ending his relationship with MA, and (c) refusing to marry MA. Defence Counsel submits that in furtherance of that motivation, MA worked behind the scenes to influence the three other complainants.
[161] Defence Counsel submits that it is not necessary for S.O. to establish that there was collusion between the complainants or tainting of evidence because of MA’s motive or conduct. He submits that S.O. need only bring the potential for collusion or tainting to such a level that it raises a reasonable doubt as to S.O.’s guilt.
[162] My conclusions with respect to count nos. 2 to 8 would not change even if I were to find that the defence theory of motive/tainting is not made out. As a result, that theory may, in the end, only be relevant to count no. 1 and the allegations made by AS.
[163] As I did with respect to each of RM, YS, and MA, I first consider AS’ evidence as if the defence theory is not made out.
The Evidence of AS
[164] AS’ evidence is that in the 16-month period from December 1, 2016 to April 1, 2018, she was sexually assaulted by S.O. on five occasions. Three of the incidents are alleged to have occurred at MA’s apartment. I refer to those incidents as the first, second and third incidents. The other two incidents are alleged to have occurred at AS’ apartment, located in the same building as MA’s apartment. I refer to those incidents as the fourth and fifth incidents.
[165] I review AS’ evidence with respect to all five incidents before setting out my analysis and conclusions with respect to each of the incidents.
▪ The First Incident
[166] AS described the first incident occurring as follows. On a night in January 2017, there were approximately 12 people in attendance at a birthday party for MA. During the party, S.O. was consuming alcohol and behaving like an “animal”. A couple of hours after the party started, the attendees were in a circular formation doing an Arabic dance. The participants were to link hands. MA was positioned between AS and S.O.
[167] Instead of holding MA’s hand, S.O. had one hand around MA’s waist. He used that hand to reach for and grab AS buttock; with one finger he pushed hard inside her buttock to the point that it hurt. When called on his conduct, S.O.’s explanation was that the contact was accidental.
[168] MA’s evidence as to the incident at the birthday party is that S.O. grabbed AS’ buttock at a time when he was making his way back to the party after having gone to the bathroom. MA testified that the incident occurred when AS was in line at the food table.
▪ The Second Incident
[169] AS testified that when she was cooking in the kitchen, S.O. grabbed her from behind and kissed her. AS’ evidence is that MA was home at the time, observed the incident, and was angry about it.
[170] MA’s evidence is that she was standing beside AS, in the kitchen, when this incident occurred. MA testified that S.O. pulled AS towards him in an attempt to hug her.
▪ The Third Incident
[171] AS’ evidence is that while living at MA’s apartment, she slept on the couch in the living room. She described an incident that occurred between 3:00 and 6:00 a.m., while each of RM, YS, MA, and her son were asleep in their respective rooms (with the girls sharing RM’s room). In summary, AS described the incident occurring as follows:
• AS was asleep on the couch, lying on her back, under a thin blanket, and wearing tights and a T-shirt.
• S.O. came to the living room and, while remaining in his full-set pajamas, laid down on top of her, with their legs and stomachs touching. AS awoke and found herself face to face with S.O.
• Despite her efforts to resist, S.O. put his hand over AS’ mouth, with force and pushed AS towards the sofa. His other hand was on the sofa. S.O. kissed AS’ cheeks, eyes, forehead, neck, and the upper portion of her breasts.
• AS could feel S.O.’s erection through their clothes. He rubbed his penis against her for about 10 to 15 minutes, stood up, shook his head at her, and left the living room.
[172] AS testified that she did not discuss the incident with MA the next day because MA’s English was not very good. AS is from Pakistan and does not speak Arabic.
▪ The Fourth Incident
[173] AS described the fourth incident occurring when she was living in her apartment, and MA was still living in the same building. In summary, AS described the fourth incident as follows:
• AS, MA, and S.O. attended a party at a mechanic’s garage. They travelled to and from the party together in S.O.’s car. After the party was over, they went to their respective apartments.
• S.O. telephoned AS to say that MA had a plate of leftovers for her and he would bring the plate up to her right away.
• When S.O. arrived, AS could see through the peephole in the door that S.O. did not have anything in his hands. AS was unsuccessful in her attempt to prevent S.O. from entering her apartment. She is uncertain whether the door to the apartment remained open or was closed once S.O. entered.
• After entering the apartment, S.O. pushed AS to the wall and began rubbing himself on her. AS could feel S.O.’s hard penis underneath the jeans he was wearing. AS attempted to resist, but S.O. touched her chin, breasts, shoulders, and back with his hands, using his hands to keep her from moving. In a loud voice, AS said, “Please stop it.”
• The incident came to an end, after approximately 30 to 40 minutes, when S.O. gave up and left the apartment.
[174] AS’ evidence is that she did not discuss this incident with MA. AS she believed that MA was so in love with S.O. that MA would not believe that the incident occurred.
▪ The Fifth Incident
[175] AS testified that this incident occurred after MA had moved from the apartment building into her home. AS’ evidence is that during a telephone conversation with MA, AS explained that she was having difficulty installing a new shower head that she had purchased. MA insisted that S.O. would go to AS’ apartment to install the shower head. In light of MA’s insistence that S.O. would come over, AS asked that either of MA or RM accompany him. S.O. arrived on his own.
[176] AS’ evidence is that the incident occurred as follows:
• AS and S.O. were both in the bathroom. After spending very little time attempting to instal the shower head, S.O. stepped out of the bathtub and towards AS. He turned her towards the sink, pushed her face in the direction of the sink, put his hands on her lower back, and, while clothed, rubbed his penis against her buttocks.
• AS was able to extricate herself and went to the kitchen. S.O. was almost out the door of the apartment when he returned to the bathroom and continued to work on installing the shower head. AS stood between the bathroom and the kitchen; she was unable to see S.O. in the bathroom.
• After about 10 minutes, S.O. exited the bathroom, approached AS and pulled her towards him with his hands on her buttocks. AS attempted to resist and the two “wrestled”, ultimately ending up in the kitchen. While both remained clothed, S.O. continued to rub his penis against AS until he came.
• S.O. went to the bathroom to clean himself up and left the apartment.
[177] AS testified that she did not tell MA about this incident because (a) she was ashamed of what happened, (b) S.O. had been her friend, and (c) she was responsible for introducing MA to S.O. and bringing him into MA’s life.
▪ Analysis of AS’ Evidence
[178] In closing submissions, the Crown described AS’ evidence with respect to the five incidents as detailed, internally consistent, and unimpeached in cross-examination. I agree with the descriptor, “detailed”. I do not agree that the accounts are without internal inconsistencies.
[179] For example, there is an internal inconsistency in AS’ evidence in chief with respect to the first incident. AS first described that (a) S.O.’s hand was covering her mouth throughout this incident, and (b) she did not scream because she knew that S.O. would try to blame her for the incident if she made any noise. That evidence is contradicted by AS’ description, also in chief, of S.O. ceasing to rub his penis against her when he realized that she would scream. This inconsistency on its own would not cause me to be concerned in general about AS’ credibility or reliability.
[180] The analysis of AS’ evidence is not, however, restricted to her accounts of the incidents per se.
[181] There are, for example, inconsistencies in AS’ evidence with respect to the length of time, between December 2016 and March 2017, that she slept at MA’s apartment. The Crown broached this subject with AS on three occasions. First, the Crown specifically asked AS how long she and YS lived at MA’s apartment. Without any qualification, AS’ response was from December 2016 to March 2017.
[182] Shortly thereafter, the Crown posed a question of AS premised on that answer. AS did not dispute the premise of the question and responded by describing the sleeping arrangements for the period during which she stayed overnight at MA’s apartment.
[183] The Crown addressed the duration of AS’ stay at MA’s apartment a third time. The Crown asked AS about the gap between when AS stopped sleeping at MA’s apartment and when YS stopped sleeping there. AS was unable to say whether that gap was a number of weeks or a number of months. She could only be certain that by some point in March 2017, neither she nor YS was sleeping at MA’s apartment any longer.
[184] By contrast, in cross, AS testified that she and YS began living at MA’s apartment in mid-December 2016. When asked in cross about how long she continued to sleep at MA’s apartment, AS’ evidence was that she did so for only a week or two; for the balance of the period ending in March 2017, she slept at her brother’s home and was at MA’s apartment only during daytime hours.
[185] In and of itself, the inconsistency between a period of one or two weeks and three months is striking. Moreover, the inconsistency is significant when considered in light of AS’ testimony in chief that the third incident occurred three to four weeks after she began living at MA’s apartment.
[186] In chief, AS testified that she stopped sleeping at MA’s apartment after the third incident. In cross, when testifying that she stayed overnight at MA’s only for a week or two, AS did not tie her decision to sleep elsewhere to the third incident.
[187] In summary, AS gave three different answers as to the period during which she slept at MA’s apartment - one to two weeks; three weeks to a month; and from December 2016 to March 2017. I find that the length of time that AS slept at MA’s apartment, is a material point about which an honest witness is unlikely to be inconsistent or mistaken. The inconsistency on this point causes me concern generally about AS’ credibility as a witness.
[188] In addition, because AS tied the third incident to her decision to stop sleeping at MA’s apartment, the inconsistency causes me specific concern with respect to the credibility of her evidence regarding the third incident.
[189] There is also an inconsistency in AS’ evidence which causes me concern with respect to the credibility of her account of the fourth incident. Very early in her examination in chief, AS testified that she and her ex-husband did not have a fixed parenting schedule for YS. AS volunteered, as an example, that as of the date on which she was giving evidence YS had been living with AS for at least a month.
[190] The Crown posed a specific question of AS – asking if, from late December 2016 to the spring of 2018, YS was with AS for “100 per cent of the time”. AS responded, “yes”, without any qualification and without any reference to YS spending time with her father in that period.
[191] Later in chief, as the Crown began to question AS with respect to the fourth incident, AS volunteered that it happened on a weekend night and that YS was with her father when that incident occurred. This answer, if true, serves to highlight that YS’ presence in the apartment was not an impediment to S.O. coming to the apartment and sexually assaulting AS in the manner she described. The answer is, however, contradictory to AS’ earlier answer – that YS was with AS 100 per cent of the time from December 2016 to the spring of 2018.
[192] In addition, both AS and MA gave evidence with respect to a restraining order in place against YS’ father. MA testified as to her understanding of the restraining order. She understood that the father’s time with YS had to be supervised.
[193] I find that AS’ inconsistent answers with respect to the parenting time arrangements for YS in 2017, at a minimum, demonstrate a carelessness with the truth. Those inconsistencies are of concern because they arise in the context of AS describing a scenario which gave S.O. an opportunity to sexually assault her on the night of the party at the mechanic’s garage.
[194] I also consider the evidence of both AS and MA with respect to the manner in which their relationship came to an end in 2017. The women paint two different pictures of what happened, neither of which is consistent with a phone call between the two women leading to MA insisting that S.O. go to AS’ apartment to install the shower head at a time when S.O. was, according to AS, already late for work.
[195] MA’s evidence is that she and her children moved from the apartment to the home in November 2017. In chief, MA described that her friendship with AS was strained even as of early 2017 because of S.O.’s interference in AS’ life during the time that AS slept at her brother’s home. MA’s evidence is that she did not have any contact with AS after moving from the apartment to the home.
[196] In chief, MA testified that she ended her friendship with AS in December 2017. MA described being frustrated by being drawn into AS’ involvement with the Children’s Aid Society and AS’ dispute with her husband. MA’s evidence is that the last straw for her was when she was presented with a CAS document to sign; she refused to do so because she felt she had enough on her plate. MA described having an argument with AS over the matter.
[197] MA testified that it was not until her birthday in January 2018 that she had any further contact with AS. On that date AS spoke with her by telephone. MA’s evidence is that AS specifically asked MA not to mention the call to S.O.
[198] If MA’s evidence is accepted, there was a very short window of time between when she moved to the home (November 2017) and when she ended her friendship with AS (December 2017), in which the telephone conversation that led to the fifth incident could have occurred. It is difficult to reconcile such a telephone call with both (a) MA’s purported understanding that AS did not want S.O. interfering in her life, and (b) MA’s growing frustration, at the time, of being drawn into AS’ life.
[199] Based on MA’s evidence, if believed, the premise for S.O.’s attendance at the apartment building when the fifth incident is alleged to have occurred simply does not ring true.
[200] AS, on the other hand, testified that as time passed, she attempted to cut ties with MA to the extent possible, including after MA moved to her home. There are inconsistencies in AS’ evidence as to whether she ever went to MA’s home before April 2018. Initially, AS testified that she would visit MA at the home as long as S.O. was not there. Later, AS testified that her first time in MA’s home was in April 2018. There is no evidence from MA that AS ever visited with her at the home prior to April 2018.
[201] It is difficult to reconcile AS’ attempt to cut ties with MA, minimizing (if not eliminating) her in-person contact with MA, and the telephone call which AS described as preceding the fifth incident. When the totality of the two women’s evidence is considered, the premise for S.O. attending at MA’s apartment building when the fifth incident is alleged to have occurred simply does not ring true.
[202] My concerns with respect to AS’ evidence regarding the circumstances in which the third, fourth and fifth incidents occurred and with respect to MA’s evidence as to circumstances at the time of the fifth incident are such that I am left with a reasonable doubt as to S.O.’s guilt on count no. 1 (s. 171) in relation to those three incidents.
[203] I return, then, to the first incident (birthday party) and second incident (kitchen).
[204] AS and MA describe the first incident occurring in distinctly different ways. Given my concerns with respect to the overall credibility and reliability of each of them, I am unable to reconcile their different versions of the incident. I find that the Crown has not established, beyond a reasonable doubt, S.O.’s guilt on count no. 1 with respect to the first incident.
[205] With respect to the second incident, I am satisfied that S.O. intended to touch AS. The second incident occurred at a time when MA was home. If AS’ evidence is believed, the second incident occurred right in front of MA. There is no evidence as to which part of AS’ body S.O. touched when he grabbed and kissed her. There is no evidence as to any words or gestures which accompanied the second incident. I am unable to rule out the possibility that S.O.’s actions were gestures of affection or friendship.
[206] When viewed in light of all of the evidence about the second incident, I find that it would not be visible to the objective observer that the touching was sexual or carnal in nature.
[207] In summary, I find that the Crown has not established, beyond a reasonable doubt, S.O.’s guilt with respect to count no. 1 (s. 171) based on any of the five incidents. Once again, I emphasize that I reach this conclusion without consideration for the defence theory of motive/tainting.
▪ The Defence Theory of Motive/Tainting
[208] In light of the findings made with respect to count nos. 1 to 8, it is not necessary for me to consider the defence theory of motive/tainting.
Disposition
[209] This trial was not without its logistical challenges – from delays encountered for any number of reasons to the technological challenges posed by the combination of a virtual and in-person hearing. Throughout, counsel conducted themselves with a high level of professionalism and civility. I am grateful to counsel for their assistance throughout the trial.
[210] S.O. is acquitted on all charges.
Madam Justice Sylvia Corthorn
Released: December 21, 2021
COURT FILE NO.: CR-18-19539
DATE: 2021/12/21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
S.O.
REASONS FOR DECISION
Madam Justice S. Corthorn
Released: December 21, 2021
[^1]: All section numbers referred to in these reasons are, unless otherwise stated, from the Criminal Code, R.S.C. 1985, c. C.46.
[^2]: This matter involved multiple counts of sexual offences by one accused against two complainants. Parts of the decision were overturned by the Supreme Court. The part relating to s. 152 was not challenged on appeal.
[^3]: Affirmed on other grounds, 2009 SCC 56, [2009] 3 S.C.R. 551.
[^4]: Transcript: April 22, 2021 at page 4, lines 28-30.
[^5]: Transcript: April 22, 2021 at page 5, lines 7-9.
[^6]: Transcript: April 22, 2021, page 5, line 21.
[^7]: Transcript: April 22, 2021, page 5, lines 23-24.
[^8]: Transcript: April 22, 2021, page 5, lines 31-32.
[^9]: Transcript: April 22, 2021, page 16, line 5.
[^10]: Transcript: April 22, 2021, page 16, lines 12 and 15.
[^11]: Transcript: April 26, 2021, page 24, lines 5-14.
[^12]: Transcript: April 26, 2021, page 33, lines 12-30
[^13]: Transcript: April 26, 2021, page 6, line 14.
[^14]: Transcript: April 21, 2021, page 28, lines 14-20. See also April 26, 2021, page 3, line 16 for RM’s evidence that S.O. touched her waist on the occasion that he was successful in pulling down her pants.
[^15]: Transcript: April 21, 2021, page 29, line 12.
[^16]: Transcript: April 26, 2021, page 4, lines 12-20.
[^17]: Transcript: April 21, 2021, page 32, lines 1-5.
[^18]: Transcript: April 21, 2021, page 30, lines 25-26.
[^19]: Transcript: April 21, 2021, page 28, line 26.
[^20]: Transcript: April 21, 2021, page 32, lines 1-5.
[^21]: Transcript: April 21, 2021, page 5, lines 2-7.
[^22]: Transcript: April 26, 2021, page 43, lines 1-5.
[^23]: Transcript: April 21, 2021, page 2, lines 22-28.
[^24]: Transcript: April 27, 2021, page 3, line 32.