COURT FILE NO.: CR-23-0122-00 DATE: 2024-12-19 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

His Majesty the King X. Ruan, for the Crown

• and -

Barry King P. Olynik, for the Accused Accused

HEARD: September 4, 2024, in Kenora, Ontario

Mr. Justice J.S. Fregeau

Reasons for Judgment

INTRODUCTION

[1] Barry King (the “accused”) stands charged with the following offences:

1. That between April 2 and April 3, 2022, he committed a sexual assault on R.K., contrary to s. 271 of the Criminal Code; and
2. That between April 2 and April 3, 2022, he did for a sexual purpose touch R.K., a person under the age of sixteen, directly with a part of his body, to wit his hand, contrary to s. 151 of the Criminal Code.

[2] The Crown called three witnesses:

1. R.K., the complainant, born XXXX, nine years old at the time of the trial;
2. L.W. the complainant’s sister, born XXX, ten years old at the time of trial; and
3. A.W., the complainant’s father.

[3] The accused did not call any evidence.

THE CASE FOR THE CROWN

[4] In April 2022, A.W. and his three children - R.K., L.W. and N.W. - lived at XXXX Ontario, in a two-storey, three-bedroom townhouse located within a four-plex building. The main floor consists of a kitchen and living room, with a staircase ascending to the second floor and a staircase descending to the basement. There is no washroom on the main floor or in the basement. There is no door at the bottom or the top of the staircase going to the second floor. There is a ceiling light at the top of this staircase going to the second floor.

[5] There are three bedrooms on the second floor, one for each of the three children, and a washroom. The flooring on the second floor is ceramic tile. Mr. A.W. testified that the second floor is “creaky”, and that you can hear the footsteps of people walking around the second floor when you are on the main level.

[6] During the evening of April 2, 2022, Mr. A.W. and two close friends had supper at his home. He put his children to bed that night sometime between 8:30 and 9:00 p.m., and then began to watch a movie with his friends at approximately 10:00 p.m. Over the course of the evening, Mr. A. W. and his friends each consumed three “tall” cans of Budweiser beer.

[7] While Mr. A.W. and his friends were watching the movie, he heard a knock at his front door. When he answered the door he saw the accused, whom he had known for more than 15 years and whom he described as a “close friend”. Mr. A.W. testified that the accused visited his home “regularly” - daily or every second day - and that the accused was friendly with his children, whom he interacted with regularly. Mr. A.W. recalled that this evening the accused was wearing a brown or tan canvas “work” style jacket, blue jeans and black shoes.

[8] Mr. A.W. testified that when he opened his front door, the accused was yelling and swearing at someone down the street. When he asked the accused what was going on, the accused told him that he was talking to David Seaton. Mr. A.W. described the accused as “very intoxicated”, with slurred speech, an aggressive demeanour and smelling of vodka.

[9] Mr. A.W. testified that the accused joined him and his friends in the living room and watched the movie with them. Close to the end of the movie, the accused stated he needed to use the washroom and Mr. A.W. told him that it was “OK” to do so. Mr. A.W. testified that the accused was upstairs for approximately one to two minutes, that he heard the accused walk to the washroom and that he heard the toilet flush. The accused then came downstairs, said he was going home, said good-bye, and walked out the front door. Mr. A.W. told the court that each of his friends had used the washroom earlier that evening, but that they did not do so after the children had gone to bed.

[10] Mr. A.W. recalled that neither the interior ceiling light near the staircase to the second floor nor the ceiling light at the landing on the second floor at the top of the staircase were on that night. The washroom light was left on that night as it usually was for the benefit of the children. Mr. A.W. testified that this light illuminates the landing area at the top of the staircase “fairly well”. The children’s bedroom doors were also left open at night, as usual.

[11] After the accused left, Mr. A.W. and his friends finished their movie and went to sleep. Mr. A.W. testified that he and his friends slept in the living room.

[12] Soon after he woke up the next morning, Mr. A.W. was told by his oldest daughter that something was wrong with R.L. When he went upstairs to speak with R.L., Mr. A.W. found her wrapped in a blanket and huddled behind the dresser in her bedroom. After asking R.L. “what’s wrong?” several times, she told him what was upsetting her. Mr. A.W. testified that he told R.L. that this was a very serious thing to say and that she repeated what she had just said. Mr. A.W. went downstairs and called the police and his sister, who both soon arrived at his home.

[13] On cross-examination, Mr. A.W. testified that the accused went upstairs to use the washroom at about 1:00 a.m. He agreed that he did not observe the accused while he was upstairs and that he did not see the accused enter any of his children’s bedrooms.

[14] Mr. A.W. told the court that his friends would have had to ask his permission to have used the washroom that night and that it was not possible that either of them had used the washroom without him knowing. Mr. A.W. explained that he does not allow people to wander around his house in the middle of the night and that guests require his permission to go upstairs and use the washroom.

[15] Mr. A.W. acknowledged that he called David Seaton the morning of April 2, 2022. He testified that he placed this call after he had called the police. During this telephone conversation with David Seaton, Mr. A.W. apparently told David Seaton he “was right about things he had been warning me about” regarding the accused being “I guess aroused by children”.

[16] L.W., 10 years old at the time of trial, testified that she was in her bed playing with her Barbie doll on the night in question. She accidentally ripped the Barbie’s dress and threw the doll out the doorway and into the hallway near the doorway to R.L.’s room.

[17] L.W. then left her room to retrieve her Barbie doll. She testified that the washroom light was on. On direct examination, L.W. testified that she saw “Barry” standing inside of her sister’s room. She described “Barry” as wearing a brown leather jacket, blue jeans, T-shirt and black shoes. L.W. testified that she had known Barry “for like five years I guess” and that “he usually wears a leather jacket, jeans and black shoes”. L.W. agreed that it was dark in R.L.’s room.

[18] L.W. testified on direct examination that she saw Barry beside R.L.’s bed, that R.L. had thrown her blanket off the bed and that she saw him touch her with his right arm, motioning with her right hand above her stomach and pelvic area. When asked what happened after the touch, L.W. told the court that “he” just walked out and that “I went to tell my dad”.

[19] On cross-examination, L.W. agreed that it was almost “pitch black” in R.L.’s bedroom when she went into the hallway to get her Barbie doll. She also agreed that she could only see dark shapes and that it was hard to see details. When asked if she went back to her bedroom after she saw a “dark figure” in R.L.’s room, L.W. testified that she saw Barry beside her sister’s bed, that he touched her and that she then ran to tell her dad what she had seen. L.W. agreed that she did not see the face of this dark figure and that she did not know it was Barry at the time. When asked if it was the next day, after talking to her dad, that she “sort of put the pieces together”, she responded “yes”.

[20] When it was put to her on cross-examination that she may have thought or been “guessing” that she saw Barry touch R.L. on her private area, L.W. responded that she saw him touch her on her private area. L.W. agreed that she and her father talked about what had happened, and that her father told her to tell the truth.

[21] R.K. was nine years old at the time of trial. R.K. told the court that after she had gone to bed on the night in question, she got up to go downstairs and get a drink of water. She was halfway down the stairs when she stopped because she heard footsteps. Thinking that it was “either Barry or [her] dad coming upstairs”, she “tiptoed” back to her bed. R.K. told that court that her bedroom light was off and that the washroom light was on.

[22] R.K. testified that “Barry went to the washroom and then he came in my room”. When asked how she knew it was Barry that came into her room, R.K. told the court that he was wearing a tan-coloured jacket. R.K. testified that she pretended to be asleep and that Barry came close to her bed and touched her, with his fingers and over her clothing, “where boys are not supposed to touch you”. When asked, “how long did Barry touch you?”, R.K. responded “four seconds”, after which “he went downstairs”. R.K. testified that her sister L.W. “checked up” on her after Barry left, following which L.W. went back to her room and R.K. “went to bed”. When asked what happened when she woke up the next day, R.K. told the court that her dad called her downstairs early in the morning.

[23] On cross-examination, R.K. agreed that it was not until her conversation with her dad the next morning that she realized it was Barry that had touched her the night before. R.K. was then read several questions and answers from the preliminary inquiry held May 3, 2023:

Q. So until…[L.W.] told your dad, did you know that [the touching] happened? A. No. Q. When [L.W.] told you Barry touched you, was that the first time you heard that? A. Umm, yes. Q. You didn’t know that happened before? A. Yes, I did not know. Q. You didn’t feel a touch? A. Nope. I thought he was just – I thought he was just looking at me.

[24] R.K. testified that she recalled these questions and answers from the preliminary inquiry. When then asked if she thought that Barry had touched her only because others had said so, R.K. answered, “yes”. When it was then put to her that she didn’t actually feel a touch, she answered “no”.

THE POSITIONS OF THE PARTIES

The Crown

[25] The Crown submits that, of the three guests in Mr. A.W. home the night in question, only the accused was wearing a distinctive tan or brown jacket and that both L.W. and R.K. testified that the person who entered R.L.’s room that night was wearing a tan-coloured or leather jacket. The Crown further submits that Mr. A.W.’s evidence that the accused was the only person to go upstairs that evening after the children were in bed is uncontradicted.

[26] The Crown submits that L.W. and R.K. were only ten and nine years of age, respectively, at the time of trial and their evidence must be analyzed on a common-sense basis. As such, the fact that L.W. testified that she told her dad about the accused touching R.K. immediately after it allegedly occurred, while Mr. A.W. and R.K. testified that it was discussed for the first time the following morning, is immaterial, according to the Crown.

[27] The Crown suggests that little weight should be given to the cross-examination of R.K. because, as a nine-year old child, she was simply agreeing with suggestions put to her by counsel. The Crown contends that the evidence given by R.K. during direct examination is “more probative” and should be given more weight.

[28] The Crown submits that R.K. testified that she was touched by a man, with four fingers, in a place “where boys are not supposed to touch you.” The Crown contends that the evidence establishes that the only person who was upstairs that night after the children went to bed, and therefore the only person with the opportunity to have touched R.K. as she described, was the accused. The Crown submits that this evidence establishes the essential elements of both offences beyond a reasonable doubt.

The Accused

[29] The accused submits that the Crown has not proven the essential elements of either offence beyond a reasonable doubt. The accused submits that, even if the court is satisfied beyond a reasonable doubt that the accused went upstairs to use the washroom after the children had gone to bed the night of April 2, 2022, the evidence does not and cannot prove beyond a reasonable doubt the following components of the offences:

1. That R.K. was in fact touched by the accused;
2. Where on her body R.K. was touched; and
3. That the touching, if proven beyond a reasonable doubt to have taken place, was for a sexual purpose.

[30] The accused submits that it appears from the evidence that R.K. herself is, at best, unsure if she in fact felt a touch, or if she is telling the court that she felt a touch only because others told her that she had been touched. The accused submits that this amounts to a reasonable doubt as to an essential element of each of the offences and that this entitles the accused to an acquittal on both counts on the indictment.

ANALYSIS

[31] It is an essential element of both counts on the indictment that the accused is found to have intentionally touched R.K. The Crown is therefore required to prove, beyond a reasonable doubt, among other things:

1. That it was the accused who was in R.W.’s bedroom on the night of April 2/3, 2022; and
2. That the accused intentionally touched R.W. that night.

[32] Based on the uncontradicted evidence of Mr. A.W., considered together with the evidence of R.K. and L.W., I am satisfied beyond a reasonable doubt that it was the accused who entered R.W.’s bedroom the night of April 2/3, 2022.

[33] Mr. A.W. testified that, during the later part of the evening of April 2, 2022, he was watching a movie in the living room of his home with two friends. According to Mr. A.W., while he and his friends were doing so, the accused knocked on his door and Mr. A.W. invited him into his home. The accused then joined Mr. A.W. in the living room and watched the movie with him and his two friends.

[34] At some point in time before the movie was over, the accused stated that he needed to use the washroom. Mr. A.W. allowed the accused to do so and the accused went up the staircase to the second floor of the home where the washroom and the children’s bedrooms were located. Mr. A.W. heard the accused walk from the staircase, across the landing and into the bathroom. He was able to do so because the second floor of his home “squeaked” when walked on. Mr. A.W. also heard the toilet flush.

[35] Mr. A.W. testified that the accused was upstairs for about one to two minutes, that he then came downstairs, said that he was leaving, said goodbye and left the residence. Mr. A.W. evidence on this point was neither contradicted nor challenged.

[36] Mr. A.W. had two friends over at his house that evening. Both stayed overnight and slept in the living room, as did Mr. A.W. Mr. A.W. testified that each of his friends had used the washroom earlier that night before the children went to bed and that neither used the washroom again at any time that night, either before or after the movie ended and everyone fell asleep.

[37] Mr. A.W. further testified that he does not allow guests to wander around his house in the middle of the night and that guests require his permission to go upstairs and use the washroom. While this is somewhat unusual, Mr. A.W. was not asked to explain this “house rule”, nor was he challenged on this point on cross-examination.

[38] I am therefore satisfied beyond a reasonable doubt that the accused was the only adult person who went upstairs to the second floor of the residence after the children had gone to bed the night of April 2, 2022.

[39] I am further satisfied beyond a reasonable doubt that the accused entered the bedroom of R.K. while he was on the second floor of the residence that night. Both R.K. and L.W. knew the accused well. Mr. A.W. testified that he had known the accused for more than 15 years and that he was a close friend of his who visited his home regularly and who interacted with his children in a friendly manner on a regular basis.

[40] L.W., who was eight years old on April 2, 2022, testified that she had known the accused for “like five years I guess”. R.K., who was seven years old on April 2, 2022, did not provide any direct evidence on her previous familiarity with the accused. However, given the evidence of Mr. A.W. and L.W., it is reasonable to infer that R.K. would also have been quite familiar with the accused for several years prior to April 2, 2022.

[41] Both R.K. and L.W. identified “Barry” as the person they observed standing in R.K.’s bedroom the night of April 2/3, 2022. Both were familiar with “Barry”. While there are some frailties with their evidence relating to their identification of the accused as the person who entered R.K.’s bedroom that night, their evidence on this point must be considered together with the evidence of Mr. A.W.

[42] According to the evidence of Mr. A.W., which I have accepted, the accused was the only person who went upstairs to the second floor of the residence that night after the children had gone to bed. This corroborates the evidence of R.K. and L.W. and, in my view, proves beyond a reasonable doubt, that it was the accused who entered the bedroom of R.K. at some point in time when he went upstairs to use the washroom the night of April 2/3, 2022.

[43] However, for the reasons that follow, I find that the Crown has not proven beyond a reasonable doubt that the accused intentionally touched R.K. while he was in her bedroom the night of April 2/3, 2022.

[44] On cross-examination, L.W. agreed with the suggestion that it was almost “pitch black” in R.K.’s bedroom, that she was able to see only dark shapes and that it was hard to see details. She insisted, however, that she had seen the person in R.K.’s bedroom, whom I have found to be the accused, touch R.K. on her “private area”.

[45] On direct examination, L.W. testified that after she saw the dark figure in R.K.’s room touch R.K. she immediately went downstairs to tell her father what she had seen. She reiterated this evidence on cross-examination. This is in direct contradiction to the evidence of Mr. A.W., who testified that it was not until the next morning that he was told by his oldest daughter, and not L.W., that something was wrong with R.K., causing him to go upstairs where he found R.K. wrapped in a blanket huddled behind the dresser in her bedroom. L.W.’s evidence on this point is also contrary to the evidence of R.K. who testified that after Barry touched her, L.W. “checked up on her” and then went back to her bedroom.

[46] I find it impossible to reconcile the evidence of the witnesses on this point. It is reasonable to infer that, had L.W. told Mr. A.W. immediately after it happened that the accused had gone into R.K.’s bedroom and touched her on her private area, he would have responded immediately, by either calling the police or confronting the accused. Neither occurred. I prefer the evidence of Mr. A.W. regarding when he learned of the accused allegedly touching R.K.

[47] L.W.’s behaviour following her observations of the accused in R.K.’s bedroom does not directly relate to any essential elements of either of the offences. However, even allowing for the fact that L.W. was eight years old in April 2022 and ten years old at trial, I find this to be a significant discrepancy in her evidence. Having accepted the evidence of Mr. A.W. on this point, I find that L.W.’s evidence is incorrect and generally unreliable. I therefore place no weight on L.W.’s evidence when she testified that she saw the accused touch R.K. on her private area.

[48] R.K. was briefly, but very effectively, cross-examined. On direct examination, R.K. testified that the accused touched her with his fingers, over her clothing, for about four seconds, “where boys are not supposed to touch you”.

[49] On cross-examination, after being read a series of questions and answers from the preliminary inquiry, R.K. was asked if she thought Barry had touched her only because others had said so. She answered “yes”. It was then put to her that she didn’t actually feel a touch, to which she responded “no”.

[50] The Crown suggests that the court should disregard the cross-examination of R.K. because she is a nine-year-old child who simply agreed with suggestions put to her by defence counsel. I reject that suggestion, primarily for two reasons.

[51] Firstly, this is not a situation where a sleeping child woke up and, in a semi-awake condition, was equivocal about having been touched. R.K. testified that she had just “tip-toed” back to her bedroom immediately before Barry came in and allegedly touched her. She was fully awake at the time.

[52] Secondly, this is not a peripheral issue. Whether the accused touched R.K. is an essential element of each of the offences before the court. I cannot and will not discount effective cross-examination on an essential element of the offences in these circumstances. I find that I am left with a reasonable doubt in relation to whether the accused intentionally touched R.K. on April 2/3, 2022.

[53] The Crown is not required to prove the elements of the offences to a certainty. That is a standard of proof that is impossibly high. In this case, I find that the accused probably or likely did intentionally touch R.K. However, probably, or likely is not proof beyond a reasonable doubt. Having considered the evidence on this issue, I simply cannot be sure that the accused intentionally touched R.K. I am therefore required to find the accused not guilty on counts 1 and 2 of the indictment.

“Original signed by”

The Hon. Mr. Justice J.S. Fregeau

Released: December 19, 2024