Court File and Parties

COURT FILE NO.: CR-23-101723 (Kitchener) DATE: 2024/08/27 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – CHRISTIAN ALMENDARES Defendant

COUNSEL: A. Dueck, for the Crown H. Mattson for the Defendant

HEARD: August 26, 2024

Restriction on Publication

By court order made under s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

MCARTHUR J.

Reasons for Judgment

Introduction

[1] Mr. Almendares is charged with two counts between February 15 and 28, 2022 of sexual assault upon M.S. contrary to s. 271 and sexual exploitation contrary to s. 153(1)(a) (did for a sexual purpose directly or indirectly touch the body) of M.S., both offences under the Criminal Code of Canada.

[2] A ban on the publication of M.S.’s identity and any information to serve to identify her is in effect.

[3] The Crown’s case involved the evidence of the compliant who is now 20 years of age. The defendant also testified.

[4] This is the decision of the court in this case.

The Legal Issues

[5] The ultimate question in this case is whether the Crown has proven the case beyond a reasonable doubt. The key issues are credibility and reliability.

Applicable General Legal Principles

[6] The test in a criminal trial is not which side I believe more but whether the Crown has proven the offences beyond a reasonable doubt. All of the evidence must be considered in determining whether the Crown has met its burden.

[7] The court can also take into account the absence of evidence and must be careful to draw conclusions on the basis of an absence of evidence and should caution itself as to findings on the absence of evidence and avoid confusing and conflating evidence that plays into myths and stereotypical assumptions.

[8] Any accused person is presumed to be innocent unless and until the Crown has proven the offences beyond a reasonable doubt. Reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities.

[9] In assessing the credibility of the witnesses in this case, I also apply the principles articulated by the Supreme Court of Canada in R. v. W.D. as applied by subsequent cases and commentary such that:

a. I cannot properly resolve a criminal case by deciding which conflicting version of events is preferred;

b. If I believe evidence that is inconsistent with the guilt of the accused, I cannot convict the accused;

c. Even if I do not entirely believe the evidence inconsistent with guilt of the accused, if I cannot decide whether that evidence is true, there is a reasonable doubt and the accused must be acquitted;

d. Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of evidence does not prove guilt; and

e. Even where I entirely disbelieve evidence inconsistent with guilt, the accused should not be convicted unless the evidence that is given credit proves the accused guilty beyond a reasonable doubt.

[10] In assessing credibility of all witnesses, I have considered the general integrity and intelligence of each witness, the witness’s opportunity to observe, capacity to remember and accuracy in statements. It is also important to determine whether the witness is honestly endeavoring to tell the truth, whether sincere, frank, biased, reticent and/or evasive.

[11] The important issues in this case are that of the witnesses’ credibility and reliability. A valuable means of assessing the credibility of a witness is often to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions, whether on oath or not. That feature does not arise in this case.

[12] I also have assessed what is testified to in the context of all the evidence in the case and not on an isolated basis including any inconsistencies and whether these are inconsequential or material and significant to the case. Where an inconsistency is significant, then this court must pay careful attention to it when assessing the reliability of the witness's testimony.

[13] The role of confirmatory and contradictory evidence also does not necessarily arise in this case.

Positions of the Parties

[14] The Crown submits the complainant’s description of the incident, if accepted, proves the offences beyond a reasonable doubt. The Crown submits the complainant’s testimony as simple and straightforward and where she was unsure, she readily stated so and had no apparent reason to lie nor fabricate the incident. The Crown also submits the context of the allegation demonstrates the accused had opportunity to conduct himself as alleged since he admitted he attended the residence when the complainant resided with her parents and admitted he was there at some time in February.

[15] The Crown submits the defendant is not credible; he was defensive, seemed confused and was particularly evasive in testifying as to his relationships with the M.S.’s family and that his credibility was imperiled in this and minimizing and distancing his relationship with M.S.

[16] The defence submits the complainant’s evidence, though possible, does not amount to proof to make the allegation more compelling and prove the allegation beyond a reasonable doubt. In addition, the defence submits that the defendant cannot prove the negative and that the court ought not reject the accused’s evidence in the circumstances. As a result, the defence submits there exists doubt, the Crown has failed to prove the allegation beyond a reasonable doubt and that the accused should be acquitted.

Summary of the Crown’s Case

[17] At the outset to the trial, defence admitted both identity and jurisdiction in this case.

[18] The complainant was 17 years of age at the time of the alleged incident in February 2022.

[19] The defendant, Mr. Almendares, was the father to her best friend since grade 2. The complainant testified she regarded the defendant as a 2nd father figure that based including that she was always with his daughter and the defendant would drive his daughter and her to various places. The defendant also visited the home of the complainant’s parents.

[20] The complainant testified that one weekend evening in February 2022, her parents, mother and father, had a party at their Kitchener home that had perhaps less than 20 people there including a friend. Everyone was consuming alcohol including the complainant.

[21] The home consisted of 4 floors; the basement and 3 other levels with the bedrooms on the top level where the complainant shared a common bathroom between the rooms with her bothers. The party was in the dining room on one of the other floors which is where the complainant first saw the defendant. She initially testified she was not sure how long the party was, she was drinking alcohol the entire time until 6:00 am, was having a good time and was a little bit intoxicated but neither light-headed nor dizzy.

[22] At some point, she was in the basement standing around the pool table. Her mother was on the coach nearby sleeping. Everyone else had fallen asleep. She testified she was talking to the defendant and had no recall what they had been talking about. She testified the defendant pulled her toward the laundry room. She testified he then asked her if she had “ever done it – suck dick - before”, wanted to try and could practice on him and he tried to push her head down. She testified she did not let this happen and told him no, she never tried it and did not want to. She was unsure if she pushed his hand away.

[23] She testified that the defendant grabbed her arm and he pulled her, while he walked backwards, up one flight of stairs. She did not recall if she said anything. She testified that the defendant did not use much force and was unsure why he was pulling her up the stairs and had an idea but did not think anything of it. After pulling her up the first flight of stairs from the basement she testified it was too late to fight back, it was “useless and I felt I could not do anything.”

[24] She testified that on the top floor she thought the defendant was going to walk her to her room. She walked into to her room and laid on the bed. She testified the defendant followed her, pulled her pants down and put his penis into her vagina while she was in the fetal position on the bed with her face in her pillow. The penetration into her vagina was seconds with thrusts in and out but she was unsure how many times. She testified she was unsure if the defendant took off his clothing. She testified the defendant stopped and asked her if she was a virgin. She said she was. He made a comment. She testified the defendant then went to the bathroom and then left.

[25] The complainant testified she felt useless, could not do anything and was scared.

[26] On cross-examination, the complainant admitted to drinking shots of liquor (vodka) from 9:00 pm onward all evening until 6:00 am although she said she paced herself. She also testifies her brothers were both at home this evening and slept in the bedroom with the adjoining bathroom which would have been the bathroom that the defendant is said to have used.

[27] The complainant testified she did not call out to her father or mother at any point since they were both incoherent.

[28] As to her pants, the complaint testified that the defendant pulled her pants to her knees. Defence counsel pointed out that with her head in her pillow, how she could know that the defendant pulled the elastic band and looked in her pants after the defendant had been in the bathroom. The complainant testified that she had looked back as the defendant walked way. This was a somewhat troubling response and one that the court finds was tailored to by the complainant to enhance her believability. This was a concerning aspect of the complainant’s evidence as was her regard of the defendant as a second father figure on the basis that she testified.

[29] The evidence of the complainant did leave the court at times with a lack or certainty, however, the court is cognizant that the manner of testifying can be difficult for younger now- adult witnesses even testifying remotely as is the case in this trial. The court, in submissions, did comment on the context of the evidence of the complainant. Without a sufficiently developed context, it becomes difficult to evaluate and ascribe a depth of understanding and meaning to the evidence.

The Defence Case

[30] I have also carefully reviewed the defence evidence of Mr. Almedares who testified.

[31] Mr. Almendares is now 36 years of age and had two children, a daughter and son, with an initial partner, Alison, who was a friend of the complainant’s parents. The victim’s home was about a five-minute walk from his home. He testified his son associated with and stayed for sleepover when younger with the complainant’s brothers at the complainant’s parent’s home and he was familiar with the home from checking on the boys there. His daughter also went over on sleepovers with the complainant there as well. He testified to a time approximately 4 months prior to February 2022, when he was at the victim’s home, and he heard the complainant getting sick and he went to check on her.

[32] He testified that later on over a period of a couple years, he went over to the home of the complainant’s parents that varied from every couple weeks to some months to socialize and that the parents liked to drink a lot and this also included the complainant. He described the complainant’s father to be an “early bird” and went to bed early where the complainant’s mother like to stay up late. He estimated he went over in this manner on up to 100 times and over a 6 year period, there were never any difficulties, no fighting, etc. He testified he stayed these parties past 2:00 am on half of the occasions and that he was not paying attention to M.S. at these parties or who she was associating with. He did testify to M.S. drinking late at these parties as not something he would not want his daughter to do.

[33] The defendant testified and denied that made the comments attributed to him, pulled the complainant nor had any sexual contact with the complainant as alleged. He admitted he was at the victim’s home in February 2022 and that he never kept track of M.S.’s drinks.

[34] The defendant is not a sophisticated witness. He has immigrant parents, completed a high school education and has worked in largely in labour work. His testimony and evidence was straightforward, uncomplicated and sincere. He is a person of average intelligence. He was respectful and not combative throughout his evidence, both in chief and in cross-examination. He did not embellish his evidence and the points he sought to clarify were appropriate and not contrived nor forced.

[35] There was a basic cogency and coherence in the defendant’s evidence as limited as it was with only minor inconsistencies that were of no consequence. This court finds there were no inconsistencies nor problematic features in the defendant’s evidence that undermine his credibility or reliability to the extent to lead to the rejection of his evidence. The defendant’s evidence was not shaken on cross-examination.

[36] I am aware that it is my duty to evaluate the accused’s evidence in the context of all of the evidence adduced at trial. I have assessed the accused’s evidence in light of the whole evidence and, in so doing, compared his evidence with that of all other witnesses. In doing so I have also considered carefully the evidence of M.S.

Findings

[37] This court cannot and does not reject the evidence of Mr. Almendares. In this regard after considering his evidence in chief and cross examination and in view of the totality of all of the other evidence in this case, the evidence of the defendant creates a reasonable doubt.

[38] Even if I had rejected Mr. Almendares’ evidence in relation to these incidents, I had some concerns with the overall reliability of the evidence of M.S. such as to not be sure that the incident as alleged occurred. In view of this, a finding of guilt beyond a reasonable doubt is not possible.

Conclusion

[39] In summary, based on the test established in R. v. W(D), I accept and cannot reject the evidence of the defendant when considering all of the evidence in the case. This raises a reasonable doubt with respect to the criminal allegations of sexual assault and sexual exploitation.

[40] Even if I had rejected the evidence of the defendant, I would have been inclined to find the Crown had not discharged its burden to prove essential element that the act occurred beyond a reasonable doubt based on the unsureness and insufficiency of the evidence as referred to.

[41] For reasons provided, the charges of sexual assault and sexual exploitation against Mr. Almendares are dismissed.

Justice M.D. McArthur Released: August 27, 2024