ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MB

Accused

Michael Wilson, for the Crown

Adetayo Akinyemi, for the Accused

HEARD: March 7 – March 10, 2022

Allen j.

PUBLICATION RESTRICTION NOTICE

An Order restricting publication in this proceeding was made pursuant to section on 486.4 the Criminal Code. Any information that could identify the Complainant or her mother shall not be published in any document, broadcast or transmission.

REASONS FOR JUDGMENT

TEMPORARY SUSPENSION OF THE COURT

1This trial was heard and decided during the COVID-19 pandemic under the direction of the Chief Justice of the Ontario Superior Court of Justice’s decision to suspend regular court operations, effective March 16, 2020. It was decided that cases involving urgent matters that can be decided on written materials or on consent and not requiring a courtroom would be conducted by teleconference or videoconference. It has since been decided that some proceedings would be held in courtrooms as fully in-person proceedings while others would be held as hybrid proceedings with some participants attending in court and others remotely by Zoom video.

2The parties agreed that the trial proceed fully by videoconference. A registrar and court monitor were present to maintain the court record. The judge, witnesses and counsel attended remotely by videoconference. Witnesses testified under affirmations to tell the truth. Materials were delivered and filed with the court via the CaseLines platform and by email and were shared over Zoom.

BACKGROUND TO TRIAL

3The accused, MB, re-elected a trial by judge alone before me. He is charged under the Criminal Code on two counts of sexual assault contrary to s. 271(a) and one count of sexual touching contrary to s. 153(1.1) (a) against the complainant AC on January 1, 2017.

4This matter took some time to come to trial. Although at the time of the alleged offences AC was residing in Toronto at the foster home of MB and his wife PB, AC’s family home was in Slate Lake, a remote Aboriginal community in the proximity of Sioux Lookout. Due to intermittent telephone and internet communication with AC’s family home, it took some effort on the part of the Crown, Michael Wilson, and Toronto Police Service Detective Ed Dizon to have AC transported to trial in Toronto.

5AC, an Aboriginal woman, testified for the Crown and MB testified in his own defence. A friend of AC, CLM, also an Aboriginal woman, lived at the foster home with AC when the alleged incidents occurred. CLM was witness to the environment around the home and some of the circumstances surrounding the allegations. The defence wished to call CLM as a witness. She provided evidence in the preliminary inquiry the transcript of which was filed at trial. Despite a subpoena being issued for CLM’s attendance at trial, she could not be located.

BACKGROUND

AC

6AC was age 21 at the time of trial. She was age 16 at the time of the alleged sexual abuse. Pursuant to 715.1(1) of the Criminal Code, the video recording of her police statement was played in open court. That provision allows a complainant, under 18 at the time of the alleged offence, to adopt the contents of the video recording as their trial evidence if it was recorded within a reasonable time after the alleged offence. AC adopted her statement.

7AC was placed in MB’s and his wife, PB’s home in Toronto by Dufferin Child and Family Services. She began to reside there in May 2016 and left on January 18, 2017. MB arrived at the home a few days after AC moved in. AC described the “vibe” in the home as turning weird when he arrived.

MB

8MB immigrated from Jamaica to Canada seven years ago. He works as a forklift driver on construction sites. His work hours required him to leave home at 5:00 a.m. and arrive home from 7:00 to 8:00 in the evening, five, sometimes six, days a week. He stated that at the time of the alleged incidents, he resided between two residences, the permanent residence where PB and her family and he lived before MB and PB took on a foster home.

IMPROPER TOUCHING

9AC made a statement to the police on June 16, 2017. She told the police and confirmed at trial that about two or three months after she moved in MB began to touch her body below her waist, press up against her, kiss her, and hug her too tightly. AC alleged that things escalated with time.

10MB denied ever putting his hands on AC or ever being alone with her. He denied ever hugging or kissing AC or getting close to her. Post-assault, before she left the home, AC said MB on several occasions would put his hand on her shoulder and say, “You are so beautiful my daughter.” She would get angry and ask why he called her his daughter.

SEXUAL ASSAULT

AC’s Evidence

11AC told the police she went up north to her family home in Slate Lake around Christmas 2016. She described the first sexual assault to have occurred on the morning of January 1, 2017. She said she had been drinking on New Year’s Eve. She told the police she had gone the night before to a New Year’s party and got very drunk. As will be seen, AC contradicted what she did on December 31st and when the sexual assault occurred.

12The trial commenced on March 7, 2022, over five years after the alleged offences were committed and five years after she spoke to the police.

13At trial, AC testified that she was likely very drunk every day around the time the sexual abuse occurred. She admitted to abusing alcohol and to being addicted to drinking hairspray mixed with water and to occasionally smoking marijuana.

14AC told the police that at around 6:00 a.m. on January 1, 2017, she got up to get a drink of water. She was still very drunk. She stated that MB was in the kitchen preparing his lunch for work that day. She alleges she was at the kitchen sink and MB came up behind her and began grinding his groin against her from behind. She froze.

15However, AC told the court she was having problems remembering what happened. She was having problems with her memory. She had been hospitalized twice for head injuries from many kicks in the head by her boyfriend.

16AC told the police she was still wearing the mid-calf sundress she slept in under which she wore no underwear. Defence counsel questioned her contradictory evidence to the police about being nude or wearing a sundress when she woke up on January 1st. AC stated she was very hungover and confused during her statement to the police. She said she was also hungover during her trip to Toronto from Sioux Lookout and remained hungover and confused at trial.

17According to what she remembered about the incident, MB said nothing to her and led her by the arm from the kitchen to the dining area. AC first said she did not know how it happened and then she described the incident.

18AC told the police that MB pushed her against the wall and positioned her body. Her hands went up onto the wall above her head. MB then lifted her dress. He pulled up her dress and had vaginal intercourse with her against her will for less than five minutes. AC said MB said thank you to her. He was not wearing a condom.

19Defence counsel questioned why AC said she did not know what happened during the sexual assault incident. She said she was confused because she was so hungover and it happened so quickly. It was like she was not even present.

20AC was also not sure of the date of the alleged sexual assault when talking to the police. AC thought it might have occurred close to the death of her grandfather on December 13, 2016. She indicated that the sexual assault may have occurred around the time she went up north to his funeral.

21Defence counsel also challenged AC on a discrepancy in her evidence about when the sexual assault occurred. AC gave contradictory evidence. Defence counsel pointed out to her an alternate version of what she did on December 31st, that she spent the night drinking by herself in her bedroom after buying two bottles of rum after school. She said she believed she drank the two bottles of rum by herself that night until early morning on January 1st. AC later testified she was so drunk that day that she did not remember if she went to school.

22AC explained the inconsistencies as the result of confusion from being drunk almost every day for a month around December 2016.

23After AC called her boyfriend she went to bed for a couple of hours. She woke up and took a shower.

24AC stated that about three or four weeks after the incident, she also told her friend, CLM, about the sexual assault and she did not believe her. She thought AC was joking. Defence counsel pointed out that three or four weeks after the sexual assault would mean she told CLM after she left the home on January 18, 2017. AC said she was likely drunk when she told CLM, so she does not recall when she told her about the sexual assault.

25As will be seen, AC and CLM wrote notes of apology to MB and his wife, AC apologizing for the sexual abuse allegations. Regarding her delay in disclosing, AC alleged that MB warned her he was going to call the police because she wrote the note. She also testified under cross-examination that she was also afraid to tell anyone because she feared she would get sent back to Slate Lake and she did not want to return home.

MB’s Evidence

26MB strenuously denied sexually assaulting AC. MB testified that when he came to Canada he looked into the rules and laws in this country because he did not want to make a mistake. He had never been accused of such a thing before.

27MB denied ever coming into contact with her in the kitchen. He testified when he got up at 5:00 a.m. every morning for work, his wife always got up with him and saw him off. He maintained he was only ever in the kitchen with his wife. The girls would either be in their rooms or out of the house.

28MB testified he was not at home on December 31, 2016 and January 1, 2017. He and PB went to church that day overnight. He was a pastor at the church. At midnight, they were at church. They went to the other residence after church and visited with PB’s relatives where AC was not present.

29Under cross-examination, MB explained that the church was located at the other residence where he often stayed with his wife’s family. The family members were at the residence on the morning of January 1st when he got up. He agreed with Crown counsel that his wife’s family members could attest to the fact he was not at the foster home on the morning of January 1st.

30Crown counsel then charged that MB has never mentioned an alibi since he was arrested. He never told the police or the Crown about this. MB responded that no one asked him about an alibi and he had never spoken to the police after he was arrested.

31Crown counsel cross-examined MB strenuously about the likelihood of him never being alone with one of the girls at any time. MB maintained his evidence that he was always in conformity with the rules. He was never close to the girls.

32Crown counsel put to MB that a sexual assault allegation is serious and that according to the rules, this type of thing should be reported to children’s services authorities. Crown counsel charged that he did not call the authorities about this. MB responded that his wife reported it to her supervisor. Crown counsel put to MB there was no police report or report to children’s services authorities when the letters were written and that he was not investigated by the police. MB had nothing to say except PB was in charge of contacting authorities.

ORAL SEX

AC’s Evidence

33AC told the police about an incident that occurred at about 11:00 p.m. one evening when she was about to go to bed. MB approached her when she was leaving the bathroom on the main floor, the one used by PB and the girls. He began touching her.

34AC said MB looked like he wanted something. He put his hand lightly on her shoulder and walked her back into the bathroom. She said he had on dress pants with a belt that he undid. AC testified she performed oral sex on him willingly. She described it as mutual. He ejaculated in her mouth and she spat the ejaculate into the sink. They exchanged no words. MB just walked away afterwards.

35Defence counsel asked AC if she told her friend CLM or anyone about the oral sex. She said she did not because she found it embarrassing.

MB’s Evidence

36MB also denied that allegation. He stated that he always only wore tracksuits around the house, not belts and dress pants. He emphasized that he never went around the washroom on the first floor except to fix a leaky tap. He only used the one in the basement. He testified he never at any time raised with AC this or any of her allegations against him.

AC’S RELATIONSHIP WITH MB AND PB

AC’s Evidence

37AC testified that at first MB was quiet, but she said he gave off “a weird vibe”. According to AC, he did not say he had a sexual interest in her. He would just act on it. AC described PB as friendly and quiet.

38AC testified that MB would get up early every morning for work and arrive home late. He stayed at the house every day. According to AC, she and CLM did not come together with the foster parents as a family very often. They sat and ate at the dining table a couple of times, but more often everyone cooked their own food. AC and CLM would go to church on Sundays with their foster parents at times. They would not often watch movies together. AC testified MB once in a while would call her his daughter.

39On cross-examination, MB adamantly denied calling AC and CLM his daughters. His wife would refer to them that way. He said he would refer to them as his children and treat them as a parent would their children.

40AC admitted she never listened to advice from the foster parents. She did not recall if MB ever gave her advice. If there was discipline to be imposed, PB would do that. AC testified she got along with PB fairly well. But she recalled a time when they were going to church and PB called them “little bitches” for not following the rules. She got over that treatment. AC testified on cross-examination that she did not find MB’s and PB’s treatment abusive.

MB’s Evidence

41MB testified PB was the principal foster parent. She managed the foster home. She had the main role in disciplining the children and would only ask him to reinforce her when they would not listen to her. MB testified they would occasionally have to call the police when the girls got out of control. Sometimes the girls would climb out the window at night. PB would call the police or ask MB to drive around with her to look for them.

42MB emphasized he was never alone with them. He testified he was rarely at the home given his work hours and the fact he stayed at the other residence about twice a week. He would use separate washrooms. He would use the one in the basement and everyone else used the one on the main floor. He did not have a great deal of contact with the girls.

43There were also care workers who stayed at the home to supervise the children during the day and night. They would also engage the police if necessary. MB said he was content that PB and the female care workers supervised the girls because he did not want to get too close to them.

LETTERS OF APOLOGY

AC’s Evidence

44CLM told MB’s wife about the sexual assault. AC told the police that when the wife asked whether it was true, AC said “I was probably drunk when I said that.” She said she felt sorry for his wife. The wife asked AC and CLM to write letters saying the accusation against MB was not true.

45At trial, AC said PB threatened she could not leave the house in the evening unless they wrote the letters. Defence counsel challenged AC that the reason she denied the sexual assault happened was not because PB threatened her, but because she did not want to hurt PB. Defence counsel posited that AC truly wanted to remain in the house despite the allegations against MB. AC responded that she wanted to stay because she thought she could handle it.

46AC said no one told her what to write although she and CLM wrote their letters sitting at the same table. She and CLM talked and AC testified she told CLM she did not want to write the letter. AC testified she felt forced to write the letter. They wrote the letters and they were put into evidence.

47Defence counsel cross-examined AC as to why she did not tell the police or say at the preliminary inquiry that PB threatened them to get them to write the letters. She did not know why she did not tell the officer. She said she did not go to the police to talk about PB.

48AC’s letter states as follows:

Dear Mr B and Mrs. B

I’m sorry for saying the non-sense. It was very low and dumb of me. It was a bet made and I tried to win. We weren’t in our right minds. It’s obvious neither one of you would even do that.. You guys love us and always just protected us. Once again, I’m very sorry. Something very dumb like this could ruin your perfect marriage., We, K and I, are truly sorry. I want everything to go back to normal, I liked it that way. Our words and actions have caused a lot of trouble.

I hope and pray to god, our family goes to normal.

A

CLM’s letter states:

Dear M and P:

We shouldn’t have made a bet about anything that serious. We were both intoxicated and even so, should have been responsible for our actions. I would like to apologize for the harm I have been a part of. I would like to apologize for not coming to you sooner. I know deep down in my heart M would never do such a thing for he is a man of God. I am truly sorry P for the assumptions made against your husband and I’m sorry [MB] for the accusations made against you. I would like to keep peace and stay together as a family, I like how it felt when we’re all together. I want that back. I love you guys.

Yours Truly, KM

Your adopted daughter?

49At the bottom of each letter is the handwritten statement: “We received this letter of apology on Friday, September 29, 2016, followed by PB (hand-printed), and a signature. MB confirmed in evidence the signature was his.

50At trial, AC testified there never was a bet, that she made that up for the letter. She said she did not show CLM her letter. She testified she wrote the words in the letter based on what she thought PB would want her to say. AC said she never told PB or anyone that the contents of the letter were not true even though PB would call AC to check on her after she left the home.

51AC testified she and CLM wrote the letters a couple of months after the sexual assault which she said occurred on January 1, 2017. She could not explain the discrepancy with September 29, 2017, the date MB indicated on the letter as the date he received the letters, which is much longer than a couple of months after January 1st.

MB’s Evidence

52In chief, MB was questioned about the letters. He said he was at the other home and his wife called him to the foster home to tell him about the accusations. When she told him about the sexual assault allegation he became very concerned telling his wife he was never alone with those girls; that he would never get in such a situation with children.

53PB told him about requiring them to write letters of apology. He said she never forced the girls to write the letters or tell them what to write. MB also denied AC’s evidence that he threatened to call the police because she had written the note. He was in the house but not in the room when the letters were written. MB acknowledged that he signed the letters on the same day they were written, which was September 29, 2017

CONCLUSION

54It would not be in keeping with the evidence for the court to convict MB on the charges he faces. I find the evidence supports acquittal on all charges.

55I do not come to this conclusion without recognizing the unfortunate circumstances of this case. The impact of AC’s life circumstances as a female Aboriginal child living in a remote community in Ontario and moving to a large urban environment was abundantly clear in AC’s frank yet dismal comments about her life. At a young age, far from her northern home she was taken into the care of child and family services and placed into foster care.

56AC was honest in recounting the desperate circumstances of her addictions to alcohol and hairspray. She was forthright in admitting the extent of her drinking around the time of the alleged abuse. She did not hide her memory problems caused by excessive drinking at the time of her allegations. AC also told the court about being hospitalized twice before trial because of head injuries sustained from being kicked in the head by her boyfriend which also impacted her memory.

57Importantly, in answer to questions as to why she gave evidence to the police inconsistent with what she said at trial, why her trial testimony was internally inconsistent at times, AC volunteered that she was very hungover during her video-recorded statement to the police and very hungover during her trip from Sioux Lookout to Toronto for trial.

58Very sadly, AC and MB spoke of her hospitalization for a suicide attempt in her bedroom at the foster home and how MB rescued her and called 911. This ended her care by MB and PB.

59I considered the jurisprudence that addresses the impact of sexual abuse of children by a person in a position of trust and authority. While MB was not a biological or stepparent to AC, I considered him to occupy an authority position as a foster parent, albeit, in a lesser role than his wife. He did help enforce house and foster care rules. He reported to his wife if he saw AC with alcohol. He went to search for AC when she escaped the home at night. He rescued her from her suicide attempt and called 911.

60I recognize that a child victim may be afraid to report abuse and may forget details of abuse when a perpetrator is a person in authority over them.

61With that in mind, I must see that factor in the context of all the evidence in assessing whether AC assisted the Crown with establishing MB’s guilt beyond a reasonable doubt.

62Courts have held that triers of fact, in assessing the evidence of a child, must look at the child’s “experience in life” … “the state of mind of the witness, her age, her level of maturity, and sense of confidence and composure, and the relationship between her and her alleged abuser.” R. v. T.E.M., 1996 ABCA 31, at para 11, (A.B.C.A); see also, R. v. D.D., [2000] 2 S.C.R. 275, 2000 SCC 43, at paras. 31 and 32, (S.C.C.); R. v. C.B., 2008 ONCA 486, at paras. 38-40, (Ont. C.A.)].

63The Supreme Court of Canada has held that while considering some features of the evidence of a child victim, such as imprecision with details, triers of fact maintain the obligation to carefully assess a child’s evidence although perhaps not on the standard of the “reasonable adult.”: R. v. B. (G.), 1990 7308, (SCC); [1990] 2 S.C.R. 30, at pp. 54 - 55, (S.C.C.)].

64I cannot ignore the life experiences AC shared with the court, experiences she candidly admitted affected her memory in many areas of her evidence. I do not find that AC’s memory issues can be attributed solely or mainly to the recognized features of the memory of a child victim. I believe, on AC’s evidence, that the passage of time, excessive use of substances and head injuries predominate as causes for her memory loss.

65Also, being hungover would normally affect a person’s sense of confidence and composure, especially, in the circumstances of a serious criminal proceeding. From my vantage point, AC’s demeanour during her police interview and her testimony at trial attest to this.

66In considering her age, while she was a young girl, she was at the upper end of her teenage years at age 16, her circumstances as regards her memory and recall of details and what they understand would be different from an immature child of more tender years because very young children have limited life experiences.

67AC’s state of mind was undoubtedly adversely affected by the general conditions of her life. Critical to assessing her trial evidence, AC told the court she was very hungover during the period of the alleged sexual abuse, during her police interview and at trial. She described herself at times as being confused when she was giving evidence. This cannot be overlooked when evaluating the credibility of her allegations.

68This is a classic “he say/she say” case. It is commonly known that when the defence presents evidence in opposition to the Crown, in determining whom to believe, the trier of fact is not to simply to compare the Crown’s version of the evidence with that of the defence and choose between them. That would wrongly reverse the burden onto MB to prove his innocence. The burden throughout remains with the Crown. The court in R. v. Dinardo made the following observation:

In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt.

[R. v. Dinardo, [2008] 1 S.C.R. 788, 2008 SCC 24, at para. 23, (S.C.C)]

69The test in R. v. W. (D.) in part provides that if the trier of fact believes the accused, he must be acquitted. When I weigh AC’s and MB’s evidence in the totality of the evidence, I find I believe MB: R. v. W. (D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.).

70AC had failed memory around the most serious of her allegations, the sexual assault. She gave contradictory evidence about when it happened, pointing to her substance abuse as a cause for the inconsistencies and confusion in her evidence. However, when looking at all the evidence and the circumstances MB described surrounding December 31 and January 1, I believe his testimony.

71I considered AC’s letter apologizing for accusing MB of sexually assaulting her. I do not believe AC was untruthful about regretting making the allegations. She said in her evidence several times that she liked PB, and that she felt sorry for her. She described her as quiet. AC identified no situations where PB was abusive toward her. The accusation that PB threatened to not allow her and CLM to leave the home if they did not write the letter is contrary to her other evidence about PB. I also do not believe that MB threatened to call the police because she wrote the note. I do not know how calling the police would serve his interests once the girls had apologized.

72I believe AC wrote the letter because she was sincerely sorry for lying about MB. That conclusion is also consistent with AC’s sympathetic view of PB. AC said in her letter that she wanted things to get back to “normal”. And I would think normal would not include sexual abuse. I think she did not want to return to her northern community because she treasured her life with both MB and PB at the foster home

73On the question of where MB was on December 31st/January 1st, I accept as reasonable that being a pastor, he and his wife would observe the advent of the New Year at church which establishes their presence at church and at the family home extending into January 1st. That is in accord with MB’s practice of staying at PB’s family home about twice a week. So, it would not be unusual for him to spend the night there rather than return to the foster home.

74I do not accept that MB sexually assaulted AC on January 1, 2017.

75Looking at the full context of MB’s and AC’s evidence, I believe that MB did not transgress his role as a foster parent. I find he accepted his role with his wife to care for the vulnerable girls. He testified he did not get close to AC; he did not kiss her, hug her, or otherwise touch her. I accept this.

76I also accept that MB did not engage AC in oral sex on him in the main floor bathroom on an evening. In reporting MB to CLM and PB, she did not mention this. I believe MB’s evidence.

77I also accept MB’s evidence that he was not present in the kitchen of the foster home when AC claimed the sexual assault occurred. Now I do have some reservations about accepting his insistence that he was never alone with her, that he was never in any room alone with her. . It could be that he was alone even momentarily with her and merely forgot. Or perhaps he exaggerated to distance himself from any likelihood that he would have had the opportunity to touch AC improperly. The trier of fact is not required to accept defence evidence in full in order to acquit: [R. v. W. (D.)]

78On any interpretation of MB’s evidence in this area, I do not believe MB ever touched AC for a sexual purpose.

79Again, this case presents with a very sad set of circumstances, sad for AC because of the desperate conditions of her life that brought her to make the allegations; and sad for MB because he had to live five years with these serious life-changing allegations hanging over his life.

VERDICT

80I find MB not guilty under the Criminal Code on counts 1 and 2 (sexual assault) and count 3 (sexual touching). Acquittals will be registered accordingly.

Allen J.