COURT FILE NO.: CR-21-111 DATE: 2024/07/30

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – J.F.R.G. Defendant

Counsel: Z. Huywan, for the Crown J.F.R.G., representing himself G. Clark, Section 486.3 Counsel W. Stickland, Amicus

HEARD: May 21, 22, 23, 2024

PUBLICATION RESTRICTION NOTICE

By court order made under subsection 486.4(1) of the Criminal Code, no information that could identify the person described in this judgment as the complainant may be published, broadcast, or transmitted in any manner. These reasons have been anonymized to permit their publication.

CORRECTED REASONS FOR DECISION Corrections are listed on page 9

M.G. Ellies J.

REASONS FOR DECISION

OVERVIEW

[1] The accused, J.F.R.G., is charged with sexual interference and sexual assault as a result of allegedly sexually touching the complainant on two occasions between June 1, 2017, and December 1, 2017, when she was under the age of 16.

[2] For the following reasons, I find the accused not guilty of both charges.

BACKGROUND

[3] The accused and the complainant’s mother, S.M., began living together in the North Bay area in 2013. S.M. had two children: the complainant and her brother. They lived for a few months with the accused’s mother before moving into the first of what would be four residences they shared together as a family unit before the relationship between the accused and S.M. ended in late 2017 or early 2018. The charges in question are alleged to have occurred at two of those residences.

The Complainant’s Evidence

[4] The complainant was born in 2008. She was approximately four years old at the time the accused and her mother began to live together. She was 15 years old at the time of the trial and said that she was approximately eight years old when the first incident of sexual touching occurred.

[5] The complainant testified that the residence in which they lived at the time had a bed in the living room. The evidence of the complainant’s mother and that of the accused is that this residence was located on Algonquin Avenue, in North Bay. The complainant said that, on this occasion, the accused squeezed her “boobs” and her “bum” one night while she was on the bed. She testified that the accused was next to her on the bed, that he squeezed her breasts, first over her clothes and then under them, kissed her all over her body, rubbed her chest and legs under her clothes, and squeezed her buttocks over the top of her clothes.

[6] The complainant testified that the second incident happened at a residence located on a “court”. The evidence of the complainant’s mother and the accused is that they lived for a time in a residence located on “St. Lawrence Court” in North Bay. However, although I have lived in North Bay for more than 35 years, I have never heard of such a street, nor am I able to find it on a map. Instead, given the description of the location of the residence, I believe that it was on St. Laurent Court, in the west end of the city.

[7] The complainant testified that, on this occasion, she was on her bed watching videos on a tablet when the accused knocked on the door and entered her bedroom. She said that he laid down on top of her – not completely, but enough to prevent her from moving – and began to kiss her arms, chest, stomach, and legs overtop of her clothing. She testified that the accused put his hands under her clothes and squeezed her breasts before he began kissing her vaginal area over top of her underwear. She said he pulled her pants or shorts down to her knees and then attempted to pull her underwear down, but that she pulled them back up.

[8] The complainant testified that these were the only two incidents of sexual touching that occurred while her mother was living with the accused.

[9] Following the breakdown of the relationship between the accused and S.M., the complainant moved with her mother to northern Québec.

[10] The complainant testified that she “stored” the memories of these incidents for years until one night, apparently in 2019, she was prompted to tell her mother that she had been inappropriately touched by the accused. That disclosure led to the complainant’s mother calling her lawyer, according to the complainant, and the Québec police becoming involved.

S.M.’s Evidence

[11] The complainant’s mother was called as a witness by the Crown. She did not add much to the evidence.

[12] S.M. testified that she and her children began living in the North Bay area after meeting the accused in 2013. She said that they first lived with the accused’s mother in Corbeil before moving into a series of homes in North Bay, starting with a residence on Stockdale Road and ending on what I have concluded was St. Laurent Court before the couple split up in 2018.

[13] She testified that, while she was usually at home when she lived with the accused, she did leave the children alone with him at times. This included two occasions during which she was in the hospital undergoing surgery.

The Accused’s Evidence

[14] The accused testified as the only defence witness. He denied ever touching the complainant sexually.

[15] Mr. G. testified that he met the complainant’s mother in 2013, while he was working for a paving company engaged in a two-week contract in Kirkland Lake. He began dating S.M. and she moved with the children to North Bay in the summer of 2013. She and the accused lived for a while with the accused’s parents before renting a place of their own. Both the accused and S.M. testified that they left North Bay to live in Rouyn, Québec, for about one year before returning to North Bay. The residence at St. Laurent Court was the last one they occupied together.

[16] Both S.M. and the accused testified that he had a very good relationship with the complainant for years after they began living together. S.M. testified that the children called the accused “Daddy”. However, the accused testified that his relationship with the complainant suffered when she began to act out while they were living on St. Laurent Court.

[17] The accused testified that he and S.M. had planned to marry at one point before they moved to Rouyn. However, he testified that the complainant’s misbehaviour began to affect his relationship with her mother. Not long before they were to marry, the accused called off the wedding. He testified that his relationship with S.M. was never the same after that.

[18] The relationship between the accused and S.M. ended when S.M. found someone else and left North Bay with that person to return to Québec, along with her children.

ANALYSIS

[19] It is a bedrock principle of our criminal justice system that anyone accused of an offence is presumed to be innocent of that offence. The effect of the presumption of innocence is to require the Crown to prove each essential element of an offence beyond any reasonable doubt.

[20] The Crown has provided me with 17 cases in support of its submission that the accused ought to be convicted in this case. With respect, I do not find many of these cases to be of much assistance. Many of them are appellate decisions that deal with the sufficiency of a trial judge’s reasons. Their usefulness is, therefore, limited to the facts of each particular case.

[21] I accept that an accused may be convicted on the uncorroborated evidence of a single witness: R. v. A.G., [2000] 1 S.C.R. 439, 2000 SCC 17, at para. 30. However, before that can happen in a case where the accused has testified under oath that the offence did not happen, I must have sufficient reason to disbelieve him or find that his evidence does not raise a reasonable doubt: R. v. W. (D.), [1991] 1 S.C.R. 742, at pp. 757-758.

[22] I also accept that a considered and reasoned acceptance beyond a reasonable doubt of the truth of a complainant’s evidence is a sufficient reason to reject the evidence of an accused: R. v. J.J.R.D. (2006), 218 OAC 37, at para. 53. However, the evidence of the complainant in this case is not such as to cause me to reject the accused’s evidence or, at the very least, not to be left with reasonable doubt by it.

[23] I will begin my discussion of the evidence by considering that of the complainant.

The Complainant’s Evidence

[24] The complainant suffers from a learning disability. As she candidly explained, she has trouble processing anything but the first and the last things she is told. As a result, she requires and receives one-on-one assistance at school, where she is enrolled in what I would call a work/study program involving the trades.

[25] Among the many cases provided by the Crown are a number dealing with the way in which triers of fact should approach the evidence of an adult witness testifying about childhood events and of witnesses suffering from disabilities that may affect the quality of their evidence. As McLachlan J. (as she then was), wrote for the Supreme Court of Canada in R. v. W. (R.), [1992] 2 S.C.R. 122, at p. 134:

Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet, with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

[26] I agree with the Crown that some of the inconsistencies in the complainant’s evidence in this case relate to minor or peripheral matters. For example, she seems to have confused the fact that the bed was in the living when the family was living on Algonquin Avenue, rather than when the family was living on St. Laurent Court.

[27] Although not an inconsistency, the complainant was also unable to remember that her uncle, her mother’s brother, lived with them in North Bay for a period of about a year, according to the evidence of S.M. She was also unable to remember how either of the alleged incidents ended.

[28] However, the frailties in the complainant’s evidence in this case go beyond peripheral issues. There are material inconsistencies.

[29] The complainant was interviewed by the police in Québec after her allegations came to light. The statement was recorded and a transcript provided during the trial. Notwithstanding what I would consider to be a well-conducted and thorough interview, the complainant told the interviewer about only one incident of sexual touching. The one incident became two only at the preliminary inquiry.

[30] Further, the complainant did not tell the police that she was kissed all over her body during the one incident of which she did speak. As mentioned earlier, at trial, she testified that she was kissed all over her body during both incidents.

[31] In addition, at neither the preliminary inquiry nor at trial did the complainant say that the accused ever hit her during either incident. However, that is what she told the police.

[32] The complainant testified at the preliminary inquiry that the accused touched her vagina during the living room incident. However, she did not say that at trial, despite being taken in detail by the Crown through the touching that occurred during that alleged incident.

[33] Finally, the complainant could not remember at the preliminary inquiry whether the accused touched her under her clothing during the living room incident, whereas she appears to have had no trouble remembering that during the trial.

[34] In addition to these inconsistencies, the complainant’s demeanor while testifying causes me concern. As the Crown conceded during his submissions, the complainant’s demeanor during cross-examination became confrontational. In some instances, she refused to answer certain questions altogether. For example, she testified that the accused used to spank her and that he was unreasonable in his discipline. When she was asked in cross-examination if her mother was aware that the accused spanked her, she did not answer.

[35] The change in the complainant’s demeanor during cross-examination led to more than just non-responsiveness. In at least one instance, it led to an unreasonable refusal to acknowledge a clearly contradictory statement. In particular, during examination-in-chief, the complainant testified that her relationship with the accused broke down when he began to show a preference for one of her friends over her. When it was suggested to her in cross-examination that the reason her relationship with the accused changed was because of a change in her own behaviour, she refused to agree. When her evidence to exactly that effect from the preliminary inquiry was put to her, she also refused to acknowledge the accuracy of her earlier testimony.

[36] Although a trial is clearly not a credibility contest, it is difficult not to contrast the frailties of the complainant’s evidence with the strength of that of the accused.

The Accused’s Evidence

[37] The accused is 57 years old. Like the complainant, he suffers from a learning disability. As a result of that disability, he is unable to write and can read very little. Notwithstanding his disability, the accused became a heavy equipment mechanic and is currently employed as such.

[38] Mr. G. presents as a simple, soft-spoken man. He impressed me as being straight-forward and candid throughout his evidence. For example, he readily admitted that he was left alone with the complainant from time-to-time. He admitted the evidence of the complainant that he threw a television remote once, although he said it was not thrown at the complainant. Further, the accused also admitted that he did call the complainant names toward the end of their relationship because he was so angry with her behaviour. He also admitted that he may have spanked her, or tried to, while she was running by.

[39] If Mr. G. wanted to seem to be someone he is not, he could easily have denied these allegations by the complainant because the mother was never asked about them and never mentioned them during her testimony. However, he did not.

[40] I found the accused to be particularly candid in his evidence about the end of his relationship with S.M. He testified that he loved her a lot and would have done practically anything for her but, as he put it, they were arguing a lot more than they were being happy towards the end of their time together.

[41] I accept S.M.’s evidence that the accused was a very good father-figure to the two children until about 2016. I also accept the evidence of the accused that his relationship with the complainant changed because she began to act out. His evidence about this was both detailed and compelling. He testified that the complainant’s behaviour began to change while they were living on St. Laurent Court and progressively got worse. He said that he and S.M. were both responsible for disciplining the children and that it depended on who was present when the discipline was required. He said that other children would come to the door to complain about the complainant’s behaviour. He testified that he and S.M. tried to address the complainant’s behaviour by bringing her into the house or by depriving her of time in front of the television or her tablet. He said that he and S.M. were generally aligned in their parenting values but, with his usual candor, said that S.M. would sometimes say that he was a little “too rough” and that he should give the complainant more “leeway”.

[42] I reject the submission made by the Crown that the change in the complainant’s behaviour could have been caused by the alleged sexual touching. This submission has no basis in the evidence. At trial, the complainant herself said that the change in her relationship with the accused was because he was giving preferential treatment to one of her friends. Even that evidence is undermined by the complainant’s evidence at the preliminary inquiry that her relationship with the accused deteriorated because of her bad attitude.

[43] For this reason, I do not view the complainant’s behaviour as any sort of circumstantial evidence in support of her allegations.

CONCLUSION

[44] Given the frailties I have referred to in the complainant’s evidence and the lack of any other supporting evidence, I have no reason to reject the accused’s evidence on the basis of the evidence of the complainant or her mother. Nor do I have any other reason to reject the accused’s evidence. His evidence-in-chief was candid and compelling, and was untouched in cross-examination.

[45] For these reasons, I find the accused not guilty of both charges.

M.G. Ellies J.

Released: July 30, 2024

COURT FILE NO.: CR-21-111 DATE: 2024/07/30 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – J.F.R.G. Defendant REASONS FOR DECISION M.G. Ellies J.

Released: July 30, 2024

CORRECTED DECISION: The text of the original decision was corrected on September 4, 2024, and the description of the correction is appended below:

• The accused’s name was anonymized in the citation line on page 1.