Court File and Parties

Court File No.: CR-23-10000133-0000
Date of Judgment: February 28, 2025
Court: Ontario Superior Court of Justice
Between:
His Majesty the King (Crown)
and
A.B. (Defendant)

Crown Counsel: Mihael Cole
Defence Counsel: Jordan Gold
Heard: September 9, 11, 13, 16, 17, 19, 2024

Non-Publication Order:
An order is in place under s. 486.4 of the Criminal Code directing that any information that could identify the victim or witnesses shall not be published in any document or broadcast or transmitted in any way.

Judge: A. Pinto

Reasons for Judgment

Overview

This six-day judge-alone trial determined whether the Crown had proven beyond a reasonable doubt that the defendant, A.B., sexually assaulted the complainant, Y.Z. A.B. was a family friend of Y.Z.’s parents from their small church community. A.B. was charged with eight offences under sections 271 and 251 of the Criminal Code, RSC 1985, c C-46. The offences are alleged to have occurred between 2017 to 2019, when Y.Z. was between 11 and 14 years old, but the assaults may have started earlier. A.B. would have been in his forties at the time.

Y.Z. testified that she was sexually assaulted hundreds of times by A.B. The alleged assaults involved A.B. touching her bare breasts, touching his nose to her breasts, and touching her buttocks both over and under her clothing. The incidents allegedly happened in four locations: A.B.’s home; the Scarborough Baptist Church; A.B.’s van; and while swimming at a beach near the Muskoka Bible Centre.

A.B. denies ever touching Y.Z. in an inappropriate manner.

The Crown called two witnesses: Y.Z., who is now 19, and X.Z., Y.Z.’s mother. The defence called A.B. to testify.

The Crown submits that the events happened as Y.Z. described. Any gaps or inconsistencies in her evidence are to be expected, given the traumatic nature of the offences and the passage of time. The Crown submits that all the elements of the charges were proven beyond a reasonable doubt.

The defence submits that Y.Z.’s allegations are highly implausible and that her evidence lacked reliability and credibility. The defence maintains that the mechanics, timing, and circumstances of the assaults could not have occurred as Y.Z. alleged. Her evidence changed from her police statement to the preliminary hearing, to the trial. The problems with her evidence are significant and cannot be attributed to the frailties of testimony from a sexual assault survivor. The Crown’s case cannot lead to conviction on the high standard of reasonable doubt. In any event, A.B. should be believed and found not guilty.

For the reasons that follow, I find A.B. not guilty of the offences charged. The timing of the alleged offences did not align with the events in question, the mechanics of the alleged assaults are highly implausible, and Y.Z.’s evidence contained significant inconsistencies. I was not persuaded beyond a reasonable doubt that the sexual assaults alleged by Y.Z. happened. A.B. is acquitted on all counts.

Background and Location of Incidents

At the time of the alleged assaults, Y.Z. lived with her parents, W.Z. and X.Z. They are now in their 50s.

The Z’s have 5 children:

• V.Z., the eldest daughter, who is three years older than Y.Z.;
• Y.Z., the second daughter, who was born in early August 2005;
• U.Z., the third daughter, two years younger than Y.Z.;
• T.Z., the son, three years younger than Y.Z.;
• S.Z., the youngest daughter, six years younger than Y.Z.

A.B. is married and the father of two children, who are 3 and 4 years younger than Y.Z. Y.Z.’s family and the B family have known each other for roughly two decades, primarily through being members of the same religious community – the Scarborough Baptist Church. Y.Z.’s brother T.Z. was best friends with A.B.’s son B.B.

The Zs and the Bs stopped seeing each other regularly around the start of the COVID pandemic in March 2020, when A.B. changed churches. Y.Z. first told her mother about the sexual assault allegations in January 2022. She provided a video statement to the police on February 18, 2022. A.B. was criminally charged in March 2022. A preliminary inquiry took place in January 2023. X.Z. testified at an examination for discovery on February 2, 2024. The trial commenced on September 9, 2024. I allowed the Crown’s application for Y.Z.’s police video statement to be admitted into evidence at trial: see R. v. B, 2024 ONSC 5187. I further permitted the Crown’s s. 601 application, on consent, to amend the original indictment to include incidents from 2015 to 2019.

I provide a detailed description of the alleged incidents below, but for introductory purposes, I summarize the alleged incidents as follows:

A.B.’s Home

• 18-30 incidents of sexual touching took place in the combined living room/dining room area of the home during summer birthday parties of A.B.’s two children in June and July of 2017, 2018, and 2019. Each incident took place when A.B. “assisted” Y.Z. with a “Pearler” bead craft that needed to be ironed inside the house, while the rest of the crowd was outside in the backyard.
• 2-3 incidents of sexual touching took place in either the basement or combined living room/dining area of the home when the Z and B children played Minecraft on remote devices in or around November of 2017, 2018 and 2019.

The Scarborough Baptist Church

• Hundreds of incidents of sexual touching took place when Y.Z. attended weekly church services with her family five out of every six weeks roughly in the years 2017, 2018, and 2019. The incidents allegedly occurred in a kitchen located off a gym in the basement of the 3-level church.
• One incident of sexual touching took place when A.B. allegedly touched Y.Z.’s breasts with his fingers while complimenting her about her hair in December 2019. This allegedly occurred in one of the youth classrooms on the main floor of the church.

A.B.’s Van

• Three to four incidents of sexual touching took place in the back of A.B.’s van. A.B. had allegedly invited Y.Z. to accompany him to pick up Domino’s pizza for the meal at his children’s summer birthday parties in 2017, 2018, and 2019. He parked the van at the strip mall of the Domino’s pizza and allegedly lured Y.Z. to the back of the van where the assaults occurred.

Swimming near Muskoka Bible Centre

• A.B. allegedly swam up to Y.Z. and placed his hand on her bum while they were swimming at a beach near the Muskoka Bible Centre in the summer of 2019.

Incidents Prior to 2017

At trial, Y.Z. claimed that, although the first incident that she could recall was in 2017, the sexual assaults started earlier.

Evidence of the Complainant

(Section omitted for brevity; see original for full details.)

Evidence of A.B.

(Section omitted for brevity; see original for full details.)

Evidence of X.Z.

(Section omitted for brevity; see original for full details.)

Relevant Legal Principles

Presumption of Innocence and Requirement of Proof Beyond Reasonable Doubt

A.B. is presumed to be innocent, unless and until the Crown has proven the offences against him beyond a reasonable doubt. It is not enough for me to believe that he is possibly, or even probably, guilty. I must be convinced of his guilt beyond a reasonable doubt. As a standard, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. At the same time, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities.

W.D. Analysis

I must comply with the analysis in R. v. W.(D)., [1991] 1 S.C.R. 742:

First, if I believe the evidence of the accused, obviously I must acquit.
Second, if I do not believe the testimony of the accused but I am left in reasonable doubt by it, I must acquit.
Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

I also accept that, in deciding whether the accused’s evidence leaves me with a reasonable doubt, I cannot consider the accused’s testimony in isolation from the rest of the case: W.D., at p. 757.

Conviction can still follow an accused’s “unremarkable” evidence

I accept that, if the Crown has convinced me beyond a reasonable doubt of the essential element of the offences, I must convict the accused even if I find his evidence to be unremarkable: R. v. R.H., 2024 ONCA 672, paras. 7-8.

Credibility and Proper Approach to Inconsistencies in Evidence

(Section omitted for brevity; see original for full details and citations.)

Discussion

(Section omitted for brevity; see original for full details.)

Conclusion

The Crown bears the burden in all criminal cases, including in sexual assault cases, of proving the accused’s guilt beyond a reasonable doubt. Here, the misalignment in Y.Z.’s testimony between when the alleged assaults happened and the events in question, the implausibility of how she says she was assaulted by A.B., along with her shifting explanation of that, and the inconsistency of her evidence in comparison to the available evidence, all led me to have concerns about her reliability and credibility. Conversely, I found relatively few problems with A.B.’s testimony. I was not at all certain that the assaults described by Y.Z. took place.

Therefore, I am not satisfied of A.B.’s guilt and he is acquitted on all counts.

A. Pinto
Released: February 28, 2025