DELIVERED : Orally on June 17, 2024

His Majesty the King v. Jeffrey Faflak

COURT FILE NO.: CR-22-3540 DATE: 20240617

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Jeffrey Faflak Accused

COUNSEL: Ms. Renaud, for the Crown Mr. Reidy, for the Accused

HEARD: May 17, 21, 22, 23 and 24

HEBNER J.

REASONS FOR JUDGMENT

[1] Mr. Faflak is charged on a 5-count indictment involving one complainant, S.W. There are four charges of sexual assault (s. 271 of the Criminal Code of Canada, R.S.C. 1985, c. C-46) and one charge of sexual exploitation (s. 153). The pertinent part of the Criminal Code sections read as follows:

Sexual Assault

271. Everyone who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years…,

153 (1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, and who

(a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person; or

(b) for a sexual purpose, invites, counsels or incites a young person 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 young person.

[2] The offence of sexual exploitation is alleged to have been committed between December 31, 1988, and January 1, 1989. The offences of sexual assault are alleged to have been committed between December 31, 1988, and November 1, 1992.

[3] In addition to the complainant, the court heard evidence from the following witnesses:

1. Carrie Stobbs, cousin of the accused;
2. Shannon Deane, former girlfriend of the accused; and
3. Mike Barnes, an employee at Willow Ridge.

Background facts

[4] The complainant was born in 1971. On December 31, 1988, she was 17 years of age. At the time of the allegations, the complainant was living with her parents, her sister and two brothers in Blenheim, Ontario.

[5] The complainant and the accused both worked at what was then called the Blenheim Community Golf Course. The golf course is still in business but is now called Willow Ridge. At the time of the events, it was a public golf course. The head superintendent, also known as the head groundskeeper, was George Faflak, the accused's father. The accused was George’s assistant. The accused and his parents, George and Sharon (referred to as Mona) lived in a residence above the clubhouse.

[6] The complainant asserts that she began working at the golf course the summer she turned 15 years of age. The accused was five years older than the complainant. The accused had finished college and the complainant was in high school at the time.

[7] George's responsibilities were to look after the golf course and irrigation, including grass cutting, changing of holes, flower gardens and outdoor maintenance. The accused assisted George and assigned tasks to the grounds crew workers. At the time of the events, the complainant was a grounds crew worker. She reported directly to the accused and obtained any necessary information from him. The complainant’s duties included cutting grass, weed whipping, flower beds, changing cups, aerating, and cutting the greens and tees. The physical labour was overseen by George and the tasks were assigned by the accused.

[8] The accused assigned the tasks to the grounds crew workers daily with each person often receiving a different job every day. The complainant described the jobs as either good jobs or less desirable jobs. The good jobs included cutting greens and fairways, planting, aerating, and running errands such as getting beer from the beer store. The least desirable job was whipping weeds.

[9] The complainant asserts that she worked at the golf course every summer full time until and including the summer of 1991. The complainant graduated from high school in 1990. In the fall of 1990, she worked at a ski resort. She returned to the golf course for her last summer in 1991.

[10] The complainant did not work at the golf course in 1992 or 1993. In 1994 the complainant again returned to work at the golf course, staying until 1998, with some time off in 1995.

[11] The complainant described the golf course as a community with the workers becoming close, like family.

[12] The complainant spoke of her parents, and particularly her father, throughout her evidence. She said she speaks of her parents a lot to help people understand why she is who she is. She said her father had a temper; that she was raised to be a good girl, and do as she was told; that her parents would be very angry if she lost her job at the golf course.

The Allegations

The New Year’s Eve Incident

[13] The complainant asserts that there was a New Year's Eve party on December 31, 1988, to January 1, 1989 at the clubhouse on the golf course. She attended the party along with other staff members and friends of staff members. It was a bring your own alcohol type of party.

[14] The complainant said she attended with a group of staff girls. They had planned to sleep overnight. She does not recall whether she brought an overnight bag or where exactly they would be sleeping. She does not recall whether she brought a sleeping bag. She does not recall how she ended up at the party. She did not see either George or Mona. The party did not spill over into the residence.

[15] The complainant could not recall whether she had been drinking but imagined she had been. She said the alcohol didn't have an impact on her. She could not say whether alcohol had had an impact on the accused.

[16] Two of the young men in attendance had a fight in the basement and someone’s head hit a pipe. Immediately afterwards, the party broke up and everyone left except the complainant and the accused. The complainant did not recall why she didn't leave as well.

[17] The complainant said she remembers sitting around a table by herself. The accused was present. The complainant said that she was 17 years old at the time and the accused was 22.

[18] She remembers sitting and then standing and the accused began to kiss her. There was an indication from the accused that he and the complainant were going to have sex. The complainant said “no”. The accused led the complainant to a ramp that connected the upper lounge to the lower lounge. The carpet on the ramp was dirty. The accused laid the complainant on the carpet. The complainant kept saying “no”.

[19] The complainant said that there was no foreplay, and her shirt was not removed. The accused was on top of her on his hands and knees and penetrated the complainant. The complainant was on her period and told the accused that she had a tampon in. The accused told her that was not a big deal, that it was not forbidden. He helped the complainant up from the ramp and lead her into the kitchen/canteen area where he laid her on a black floor mat. The accused pulled out the complainant’s tampon and inserted his penis into her vagina.

[20] The black floor mat was greasy from the use of the fryers. The complainant described the floor as “gross and dirty”. The complainant saw the chocolate bars in the display cabinet beside her. The coffee maker was behind her head.

[21] The next thing she remembered was that the accused was gone, and the complainant was curled up on George and Mona's sectional in their residence.

[22] The complainant said the initial penetration was painful. She said she “froze and shut down”. She said there was no kissing or foreplay. The positioning was that she was on her back and the accused was between her legs with his hands on either side of her.

[23] She initially said that she “believed” that the accused had ejaculated. When she went back through her evidence, she said that the accused did ejaculate before he got off of her.

[24] The complainant had no memory of leaving the golf course the next day. When she returned to work in the spring, both the complainant and the accused pretended that nothing had happened.

Sexual Favours

[25] The complainant asserts that at some point during her employment at the golf course she had to start providing “sexual favors” to the accused. The complainant said she was told to perform fellatio. She does not remember how she knew what to do and assumes that she was directed.

[26] The complainant said that the exchange would be: the accused saying “give me a blowjob”; the complainant saying “no”; the accused saying “come on, I'm so stressed”; and the complainant then agreeing.

[27] The complainant asserts that she performed fellatio on numerous occasions in the barn, a structure separate from the clubhouse. She described a man door in the barn that had a small, long, thin, window in it. The door led to a small utility room with a double sink. She said the accused would stand so that he could look out the window and she would kneel. Afterwards, they returned to work.

[28] The complainant said this happened repeatedly from some time in 1989 to 1991 when she left her employment. She said she felt she had to perform fellatio for a variety of reasons: the accused was her boss; the accused had a temper; the complainant was fearful of the accused; the complainant loved her job and wanted to keep it; the accused gave the complainant her day-to-day tasks. The complainant said the workforce at the golf course was like family to her. She said she tried to keep the accused happy so that she could keep her job and be part of that family. The complainant said her parents would be very angry with her if she lost her job.

[29] The complainant said that she pretended that the accused was her boyfriend. She described occasions when the accused would say to her “let's go for a car ride” and they would use one of the golf carts to survey the course. On one occasion, the accused drove the golf cart to an area behind the 17th tee that was heavily wooded and, with limited visibility in that location, the accused digitally penetrated the complainant.

[30] The complainant asserts that she never said yes to any of these events. She said no at the beginning and thereafter did what she was told.

The Desk Incident

[31] The complainant spoke of an event that took place in the small area of the barn where the accused had a desk. She said that the accused bent her over his desk and entered her vagina from behind. The complainant could not recall if she said no to the sexual act but asserts that she did not say yes and that this was one of those “sexual favors”. She said it was a part of her job. The complainant asserts that the accused did not wear protection.

[32] The complainant said that she thought the accused ejaculated in the office but could not say for sure. The complainant said that the accused always ejaculated during fellatio.

[33] The complainant said that she continued to secretly pretend that the accused was her boyfriend.

The Bedroom Incident

[34] The accused was a musician of sorts and played in a band. The complainant attended the band’s practices that took place in the barn on the golf course. The complainant often went with her friends to watch the accused and his band when they played in a local bar.

[35] On one occasion after attending in a bar to watch the accused and his band play, the complainant went home and went to bed. She said that her house had a TV antenna, and a flat roof situated such that her bedroom was accessible. The complainant said she was in bed when the accused knocked on the window.

[36] The complainant opened the window and let the accused into her bedroom. She said she did that because she “didn't want to wake her father”. They had sexual intercourse, and the accused left the bedroom through the window. The complainant believes this event occurred in the fall of 1991.

[37] The complainant could not recall if she had been drinking. She said the accused usually drank alcohol when he was playing in his band. She denied inviting the accused to her home. She said she was worried that her parents would hear the accused and her father had a temper. The complainant could not recall the details of the event. She said she would “just freeze”. She recalls being on her back and the accused on top of her. She assumed that he ejaculated.

[38] The complainant said that she reported the events to police in October of 2020/2021 and in June of 2022. The event that prompted her to go to the police was an argument with her boyfriend.

The Relationship

[39] The complainant said that others would see she and the accused as friends. At times they had beers at night after they had aerated the course. They played in golf tournaments together. The complainant would drive the accused’s Camaro and wear his college letterman jacket. The complainant watched the accused at his band practices and attended events where the band was playing so she could watch him play.

[40] The complainant said that the golf course staff were all friends. They would go on outings together including one outing to Wonderland. They hung out together at the barn on the premises. The complainant hung out at the barn frequently both after work hours and on days she was not scheduled to work.

[41] Throughout her statements to police the complainant spoke of pretending that the accused was her boyfriend. She said she was still searching for understanding as to “what I did and why I couldn’t have him”. At the same time she said she was afraid of him. The complainant spoke in her evidence of having two separate lives. She did sexual favours to keep her job and at the same time they were friends and she had feelings for him.

[42] The complainant spoke of performing sexual favours, particularly fellatio, and then be assigned the good jobs as opposed to the jobs nobody wanted. She said she was going to “at least make this to my benefit”.

[43] The complainant could not provide an example of an occasion where the accused used his position to hurt her. She did say that there were times she was assigned less desirable jobs if the accused was unhappy with her.

[44] The complainant recalled one occasion when she used the wrong type of fuel in a vehicle. The accused was not happy with her, but she could not recall any consequences.

[45] In cross examination the complainant explained the inconsistency. She said “in her mind it’s not that she wanted the accused to be her boyfriend but that she pretended he was to normalize the relationship”. She said there was a difference between wanting a relationship and wanting to justify what happened to her.

[46] In her police statement, when the complainant talked about the different events, she said “the only one that I would say I had absolutely zero consent would have been the first time (the New Year’s Eve incident) …. And after that it is grey. I’m not saying I wanted to do it. I wouldn’t say that, I just, I did though”. And “I couldn’t hold that boundary”. In cross examination, the complainant said “looking back I performed what was asked. I said no several times and then he would beg and I would do it”.

[47] The complainant was asked about her choice to wear the accused’s letterman jacket. She said it hung on a rack in the barn and she liked it, so she wore it.

[48] As to her fear of the accused, the complainant said that she saw the accused being physical with his girlfriend, Shannon Deane, on two occasions – once he pulled her out of his car by her hair and another time he threw her down and against a wall. At the same time, in her police statement, the complainant said that she did not feel like the accused would physically hurt her. She said that when those memories came to her it “solidified the feeling of why she was so scared”. She said she “doesn’t have memories as such”. Rather, she has an understanding of what happened that came to her in trying to process the trauma.

The Complainant’s Memory

[49] When giving her evidence in chief on the New Year's Eve incident, the complainant said that her memories were “scarce”. She later said that there were four reels that ran in her head and those reels have never changed.

[50] From the evidence it is unclear as to exactly what the four reels depict. The complainant said that one reel is of constantly giving blow jobs to the accused in the corner of a room in the barn (previously described).

[51] It is unclear as to when the reels started to play. When the complainant was asked why she returned to work at the golf course in 1994 given her allegations, she said she did have memories in 1994 but “the reels didn’t play the same”.

[52] The complainant had told police in her statement that she was groomed. When asked what that meant she said it was just a feeling – that her memories are very scarce. On another occasion the complainant described her memories as “scattered”.

[53] The complainant at one point described her memories as “surfacing”. She said she was in a car accident in 2009 and was working at the golf course at the time. She said that her memories began to unravel after the accident.

The evidence of other golf course witnesses

[54] The accused called as a witness his former girlfriend at the time, Shannon Deane. The accused and Ms. Deane dated from 1988 to 1991. Ms. Deane said that the accused's temperament was normal during their dating relationship. They had some arguments. Ms. Deane said there was one incident of the accused being physical with her. He pushed her up against a wall. The incident took place in the late 1990s and occurred outside the barn at the golf course.

[55] Ms. Deane said that George was the boss of the golf course, but the grounds crew obtained their work assignments from the accused. The accused was in charge of the summer student workers, including the assignment of their day-to-day jobs. She said that the accused was easy going and easy to talk to. In the summer of 1989, Ms. Deane worked as one of the grounds crew. She said that every grounds crew member did every job, generally receiving a new job every day. She said that weed whipping was one of the worst jobs and cutting the grass was one of the best jobs. The jobs included collecting garbage, separating the beer cans and taking the empty beer cans to the beer store in the golf course truck. Ms. Deane worked outside as ground crew in 1989. In 1990, she worked in the kitchen. She said that the accused did not show favoritism in assigning jobs in 1989. She can not say if he showed favoritism in the other years.

[56] Ms. Deane said it was normal for grounds crew workers to stay after shift and hang out. The atmosphere was a social one and beer was consumed. There was a trip to Wonderland for the grounds crew staff.

[57] Ms. Deane was asked in cross examination about the location where the New Year's Eve alleged events took place. She said the ramp was carpeted. The kitchen floor had black mats to stand on. The service window, where customers placed their orders and collected their food, was inside the clubhouse.

[58] Ms. Deane confirmed that there could be grease on the floor from the fryers. In re- examination, she said that the kitchen was shut down at the end of the golfing season each year. The fryers were cleaned, the grill and counters were cleaned, the floor was washed, the food was removed from the fridges and freezers and all bagged food was removed and put away. The floor was cleaned using a mop and a bucket under the mats and over the mats. The chips, chocolate bars and other snacks would be removed from the display cabinet and put in a freezer. Ms. Deane said that the accused's mother always made sure the kitchen was cleaned so there would be no problems with mice over the winter. The attendees at the New Year's Eve party brought their own snacks and food - they did not use the kitchen or the fryers.

[59] Michael Barnes was called as a defence witness. He works at the golf course and the accused is his boss. Mr. Barnes has been working at the golf course for 34 years, starting in 1990. Mr. Barnes recalls the complainant working at the golf course at the time he started. He also knew her from school. He recalls that the complainant continued working at the golf course for approximately eight years after 1990. Mr. Barnes did not recall seeing any physical contact between the complainant and the accused.

[60] Mr Barnes described Mr. Faflak’s parents, George and Mona, as “parents to everybody”. George and Mona would socialize and have drinks with the workers. The golf course was a fun place to work, and coworkers became friends. It was normal for coworkers to spend time socially outside of work.

Legal Principles

Credibility and Reliability

[61] In R v. C(H), 2009 ONCA 56 at paragraph 40 Watt J described the difference between credibility and reliability thusly:

Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately

i. observe; ii. recall; and iii. recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514 (Ont. C.A.), at 526.

[62] The fact that a witness is found to be credible does not answer the question of whether the evidence is proven reliable (R v. Vickerson (2005), 200 OAC 87).

[63] The dissenting opinion of Tholl JA in R. v. Kishayinew, 2019 SKCA 127 at paragraphs 59-60 is also instructive:

[59] In analyzing this ground of appeal, it is important to understand the distinction between credibility and reliability because the assessment of credibility is a separate consideration from the assessment of reliability. It is the difference between the witness’s willingness to testifying truthfully (credibility) and the accuracy of the witness’s testimony (reliability). Finding a witness to be credible does not equate to finding a witness’s testimony to be reliable. While a non-credible witness’s testimony will not be reliable, a credible witness’s testimony is not necessarily reliable:

[60] There are many reasons why witnesses — who are forthright, acting in good faith and honestly doing their best to tell the truth during testimony — may not be reliable. Some of those reasons include (but are not limited to) the following:

(a) inability to properly observe the events in the first instance; (b) confusion with a different event; (c) intoxication; (d) passage of time; (e) nervousness during testimony; or (f) other factors affecting a witness's ability to observe, remember and recount the events. (citations omitted).

Recovered Memory

[64] In R. v. P.C., 2017 ONSC 4435, the accused was charged with assaulting the complainant between May 1, 1986, and August 31, 1986. The complainant testified in cross examination that “his memory of the whole only came when he was 40” and that his psychiatrist assisted him in remembering what transpired in the summer of 1986.

[65] Andre J noted a caution given by Marc Rosenberg (later Mr. Justice Rosenberg of the Ontario Court of Appeal), in a 1995 Canadian Appellate Court Seminar, on the frailties of repressed memory of childhood events. He noted at para. 90 of his article that:

In my view, the particular frailties of repressed memory of childhood events require that, as a matter of practice, the trier of fact be warned that it is dangerous to act upon the recovered memory alone. So far as I am aware, there are no scientifically accepted internal criteria or standards by which a trier of fact can distinguish between accurate recollections and false or mistaken allegations. Accordingly, the trier of fact must be warned to look for objective evidence and that otherwise there are no means to distinguish reliably between a memory of an actual event and a fantasy. The objective evidence need not be corroboration in the strict sense, but there should be some evidence that restores the trier’s trust in the reliability of the witness’s memory.

[66] Andre J concluded on the issue of the reliability of the complainant’s evidence:

…if the evidence calls into question whether the alleged incidents occurred, then the court has no option but to conclude that D.D.’s testimony was sufficiently unreliable so as to justify a conclusion that it would be dangerous to convict P.C. based on that evidence.

Assessing Credibility and Reliability

[67] In this case, my assessment of the credibility and reliability of the complainant’s evidence will determine the disposition.

[68] One of the most valuable means of assessing witness credibility is to examine the consistency between what a witness said in the witness box and what that witness has said on earlier occasions. There may be inconsistencies from that witness saying something different, or from omitting to refer to certain events at one time while referring to them at another time: R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 12.

[69] The nature of the inconsistency must be examined. Where the inconsistency involves something material about which an honest witness is unlikely to be mistaken the inconsistency is concerning: A.M., at para. 13.

[70] Where the evidence deals with historical events, the court must consider the inherent frailties of that evidence. In R. v. Sanichar, 2012 ONCA 117 at para. 34, the Court of Appeal noted that a positive credibility assessment is not enough where an accused is facing charges based entirely on allegations of historic sexual abuse and where there are serious reliability issues.

[71] Blair, J.A. said, at paragraph 38 of Sanichar, “[m]emories become increasingly frail over time. Evidence that might have existed had the matter been dealt with earlier may have disappeared. Or it may become contaminated. Life experiences can colour and distort the memory of what occurred.” In his dissenting judgment, Laskin J.A. agreed that the passage of time may affect the accuracy of a witness’ ability to recall and recount the events at issue: para. 70. The dissent was upheld by the Supreme Court of Canada in restoring the conviction in R. v. Sanichar, 2013 SCC 4, [2013] S.C.J. No. 4.

[72] Demeanor is a consideration but must be used cautiously and not over emphasized: R. v. D.P., 2017 ONCA 263, [2017] O.J. No. 1593, application to appeal dismissed [2017] S.C.C.A. No. 261.

[73] I found the complainant to be a credible witness. She was straightforward when answering questions, fairly conceded the problems with her memory and acknowledged inconsistencies. I do not question the complainant’s veracity. However, for reasons I will explain when I address each of the counts in turn, I cannot find the complainant’s evidence to be sufficiently reliable to, on its own, ground a conviction on any of the counts.

Reasonable Doubt

[74] To find Mr. Faflak guilty on any count I must be satisfied of his guilt beyond a reasonable doubt. The standard of proof beyond a reasonable doubt is inextricably linked to that basic premise that is fundamental to all criminal trials – the presumption of innocence. A reasonable doubt is not based on sympathy or prejudice – rather it is based on reason and common sense. It is logically connected to the evidence or absence of evidence. I must be sure that the accused committed an offence before I convict him of that offence.

The Criminal Code

[75] The current provisions of the Criminal Code provide, in s. 273.1(2)(c) that consent is not obtained if “the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority”. That provision was not in place at the time of the events grounding the charges in this case and counsel agree that, therefor, it does not apply. Instead, the 1985 Criminal Code provision of s. 265(3)(d) applies. That section provides that no consent is obtained if the complainant submits or does not resist by reason of “the exercise of authority”. The accused must have actually abused his position of authority for the section to apply (R. v. Audet, [1996] 2 SCR 171 at para 22). There must have been a positive act. In R. v. P.S., [1993] O.J. No. 704 (QL) Blair J said the following about a person in authority:

[a position of authority] invokes notions of power and the ability to hold in one's hands the future or destiny of the person who is the object of the exercise of the authority.

[76] The accused was an assistant greenskeeper at the golf course. George was at all times the boss of the golf course. There was no evidence that the accused had the authority to terminate the complainant’s employment. The complainant fairly conceded that the accused never threatened her employment. The best that can be said of the complainant’s evidence is that the accused had the ability to control the type of grounds work she was required to do: for example riding the lawnmower, planting or weed whipping. This does not reach the bar described by Blair J. I find that the accused was not in a position of authority so as to invoke s. 265(3) of the Criminal Code.

[77] I turn now to each of the counts.

Count 3 – The Bedroom Incident

[78] Prior to the bedroom incident, during the evening the accused had a band event and the complainant attended.

[79] The complainant could not recall the accused ever being in her home. She could not explain how he knew that a climb up the television aerial would lead him to her bedroom. She could not explain how the accused knew where her bedroom was. When the suggestion that she provided the information was put to the complainant she said “It’s possible”. She agreed that she opened the window for the accused to gain entrance and said she did so because she was fearful of him. She said she “has little recollection” of things and “filled in the blanks”. When asked if it was possible that she let the accused into her bedroom because he was her boyfriend, or because she wanted him to be her boyfriend, she said it “doesn’t feel accurate”.

[80] This is one of the events where the complainant told police that she cannot say that she had “zero consent”. That alone raises a reasonable doubt. The complainant’s evidence that she opened the window for the accused to come into her bedroom because she was afraid of waking her parents does not ring true. Moreover, I am troubled by the lack of any explanation as to how the accused knew the aerial tower would lead to the complainant’s bedroom. The only rational explanation is that she told him.

[81] Given all of these considerations, I found a reasonable doubt exists on the issue of consent and the accused must be found not guilty on count 3.

Count 4 – Fellatio

[82] The complainant said that the accused would repeatedly ask for oral sex and she would repeatedly say no. Then, the accused would say that she could do a favourable job afterward (such as use the accused’s car to take empties to the beer store) and she would agree. She said that she agreed so as to keep her job, but could provide no incident where the accused threatened to fire her if she refused.

[83] The complainant said that she had no memory of the first fellatio event, nor could she recall specific events. She could not place the events in a timeline.

[84] I return to the comment the complainant made to the police about consent. The instances of fellatio are included in those events that the complainant could not say that she had zero consent. Accordingly, I cannot be satisfied beyond a reasonable doubt that the complainant did not consent, and the accused must be found not guilty on count 4.

Count 5 – The Desk Incident

[85] The complainant’s description of this event was lacking in detail. She was not sure when the event occurred or if the event took place after hours; she did not know how she and the accused happened to be in the office. The complainant’s evidence of the event itself lacked detail. The complainant said in her evidence that she did not consent but her comments in the police interview call that into question. There was no evidence of a refusal. The complainant could not recall if the accused ejaculated.

[86] The complainant spoke of fragmented memories, and memories surfacing over time, and I suspect that is the reason for the lack of detail in her description of this event. The result is that I cannot be satisfied beyond a reasonable doubt that the event occurred and, if it did, that the complainant did not consent.

Count 1 and 2 – New Year’s Eve Incident

Count 2

[87] A conviction on count 2 requires that I find the complainant to be a young person, between the ages of 14 and 18. The complainant’s evidence is that the events took place at a New Years eve party the night of December 31, 1988, to January 1, 1989. She knows the date is correct because in the summer of 1989 the complainant travelled to New Brunswick for two weeks. If that were the case, the complainant would be 17 years of age.

[88] The accused called his cousin, Ms. Carrie Stobbs to give evidence on his whereabouts that New Years Eve night. Ms. Stobbs said that she and her husband attended a New Years Eve party at a bar called Copperfields in Chatham. They purchased the tickets in advance. Ms. Stobbs saw the accused at the Copperfields party with her sister’s ex-boyfriend. Ms. Stobbs arrived at the event at approximately 9:30 pm and stayed until after midnight. She thought the accused was still at the Coperfields party at the end of the night but could not say for sure. He was certainly there until midnight.

[89] Ms. Stobbs was asked how she knew that she got the year right for the party. She said a good friend, Deb, called Ms. Stobbs knowing that she would be in town. Deb asked that Ms. Stobbs stop in to see her and meet her new boyfriend. A picture was taken of the two women and Ms. Stobbs had labelled the back of the picture “Carrie and Deb New Year's Eve 88-89”. The picture and the visit were important to Ms. Stobbs because Deb died four years ago after an illness. Here, the two women were both wearing purple. Ms. Stobbs wore the same dress on October 6, 1990, to Deb's wedding.

[90] Shannon Deane gave evidence on the party. She said that she dated the accused from 1988 to 1991. They started dating in November of 1988. Ms. Deane was 18 at the time and not old enough to drink alcohol. She turned 19 in the spring of 1989.

[91] Ms. Deane said the New Year's Eve party at the golf course took place on December 31, 1989, to January 1, 1990. She attended the party.

[92] Mike Barnes also attended the party. Mr. Barnes said the New Year's Eve party was December 31, 1989, to January 1, 1990. Also in attendance were Shannon, Troy, Bill, Chad, Tracy, and Jeff (the accused). Mr. Barnes could not remember the complainant being at the party.

[93] Mr. Barnes knew the New Year's Eve party was on December 31, 1989, because he was on a three day “bender” for his 19th birthday, which was on December 29, 1989. During the next three days, Mr. Barnes visited drinking establishments in Blenheim and in London, Ontario.

[94] Given the evidence of Ms. Deane, Ms. Stobbs and Mr. Barnes, I cannot be certain about the New Year's Eve party taking place on December 31, 1988. The evidence of Ms. Stobbs was particularly compelling given her reasons for her memory of the exact date. She said that she and her friend, Deb, discussed the evening, along with the fact that Ms. Stobbs wore the same dress to Deb’s wedding the following year, when Deb was ill. Ms. Stobbs’ evidence alone leaves me with a reasonable doubt as to the complainant’s evidence on the date of the party. I find that the party took place December 31, 1989, to January 1, 1990, when the complainant was 18 years of age.

[95] Given I cannot be satisfied beyond a reasonable doubt that the complainant was under 18 years of age at the time of the New Year's Eve events, I find the accused not guilty on count 2.

Count 1

[96] I turn to count 1, the charge of sexual assault for the alleged events at the New Year's Eve party.

[97] The evidence of Ms. Deane was that those who attended included Mike Barnes, Troy Kirkwood, Bill Bowden, Chad, Tracy, and Jeff (the accused). Tracy was Ms. Deane’s stepsister and Chad was Tracy's boyfriend. The accused's mother was also present. Ms. Deane could not recall if the complainant was in attendance.

[98] Ms. Deane said that Mr. Bowden and Chad had an argument about Tracy shortly after midnight. Ms. Deane planned to stay overnight but after the fight chose to leave and take Tracy home. She arrived home between 12:30 and 1:00 the morning of January 1st. The accused arrived at Ms. Deane’s house approximately one to one and a half hours later. It would have taken the accused approximately 10 minutes to drive from the golf course to Ms. Deane’s home.

[99] Ms. Deane did not recall any of the party goers sleeping at the clubhouse overnight. She said it could have happened; she just does not recall.

[100] Ms. Deane described her relationship with the accused as an exclusive one. They were engaged in late August or September of 1990 and broke up in April or May of 1991. Ms. Deane was not aware of any sexual relationship between the accused and the complainant.

[101] Ms. Deane was straightforward when she gave her evidence. She had no motive to fabricate. She recalled many details of her time at the golf course. I accept her evidence in its entirely. Even with Ms. Deane’s evidence, the accused had opportunity to spend time alone with the complainant. He had at least an hour after Ms. Deane left the party.

[102] I return to the complainant’s evidence.

[103] The complainant said that “we” planned to sleep at the golf course but had no memory of who else was included in those plans. She had no memory of bringing an overnight bag or where “they” planned to sleep. These are details missing from the complainant’s memory.

[104] The complainant said in her evidence that she was sitting at a table and then remembers standing and the accused kissed her. She said she had butterflies. However, she told the police that the accused tried to kiss her and she said no.

[105] The complainant could not say whether there was conversation between them. She was not sure how she told the accused “no”. She had no memory of the clothes worn by both of them and whether they were removed.

[106] The complainant’s next memory is of being on the ramp. She told the police initially that her tampon was removed on the ramp and placed beside her. In her evidence, she said the accused moved her to the kitchen and removed the tampon there so there would be no blood on the carpeted ramp.

[107] In the kitchen, the complainant said that the accused placed her on a dirty, greasy floor and she could see the chocolate bars in the display case. However, I accept the evidence of Ms. Deane that the kitchen would have been cleaned, the fryers put away and all the food, including the chocolate bars, put in storage.

[108] On this count in particular the reliability of the complainant’s memory is a factor. There are integral details that the complainant cannot recall, and her memories are shifting. I cannot be sure that the complainant is accurately recalling and recounting the events of that evening. I am satisfied that she was at the party given her knowledge of the fight and the manner in which the party ended but I cannot be sure that the sexual assault described in her evidence took place. I cannot be sure that her memories are anchored in real life events.

[109] Accordingly, I cannot be satisfied beyond a reasonable doubt that the accused sexually assaulted the complainant as she described.

Disposition

[110] For these reasons, I find the accused not guilty on all counts.

Original signed by “Pamela L. Hebner”

Pamela L. Hebner Justice

Released: 20240617