Sexual Assault – Example #1

Case Name:

R. v. K.G.P.

Between

Her Majesty the Queen, and

K.G.P.

[2011] O.J. No. 4996

Ontario Court of Justice

Guelph, Ontario

N.S. Douglas J.

Oral judgment: January 31, 2011.

(14 paras.)

Counsel:

J. MacDonald, Counsel for the Crown.

D. Brown, Counsel for Mr. K.G.P.

REASONS FOR JUDGMENT

1 N.S. DOUGLAS J. (orally):– K.G.P. was a young person at the time of the offence; date of birth, February 23, 1992. He is charged on a two count information that over a period of time, from December 2008 and May 2009, count 1, that he committed a sexual assault on A.O., and count 2, during the same time period, that is over the period of about five or six months, he did, for a sexual purpose, touch A.O., a person under the age of 16 years, directly with a part of his body, to wit: his hand, contrary to section 151 of the Criminal Code of Canada.

2 This trial began on November 3, 2010, and continued to November 30, and January 17, 2011. Argument was made on January 17, 2011, and I reserved judgment until this morning.

3 A.O. was almost fourteen years of age at the time of the trial and therefore, was under the age of 16 years of age, considerably, when these events happened.

4 In any criminal trial the defendant is cloaked with the presumption of innocence. That is, he is an innocent person until such time as he is proven guilty. It is the Crown attorney who bears that burden of proof. He does not need to prove anything. The burden of proof is on the Crown and the onus of proof is a high one; it is proof beyond a reasonable doubt. When it is basically a situation where a complainant says one thing and a defendant says another and therefore credibility is the issue, the Supreme Court of Canada have given trial judges some guidance in a case called R. v. W.(D.), 63 C.C.C. (3d) 397; a case now of some ten or so years old – that was in 1991, and basically it says in a situation like that, and I am using the vernacular, if the accused is believed he is to be acquitted. Even if he is not to be believed, if he acquitted if the Crown still has not proven the case beyond a reasonable doubt on the other evidence, and thirdly, even if I reject his evidence, it is still up to the Crown to prove his guilt beyond a reasonable doubt. There are cases where I can reject entirely an accused person’s evidence and still find him not guilty. Not guilty does not always mean innocent. In many cases it simply means not proven – that although he is probably guilty and that is my feeling in a case, I must acquit him unless I am satisfied beyond a reasonable doubt that the Crown has proven his guilty. That is the law.

5 With regard to the practice in a case involving credibility, how does a judge decide? Well first of all the judge has an overall impression of each witness, and at the end of the day sometimes that first impression changes, but sometimes the first impression of a witness sticks throughout the case and throughout the submissions of counsel, an overall impression of credibility or believability.

6 Secondly, the court looks at how the witness answered questions; directly, did he or she dodge questions, did he or she embellish the evidence, did he or she minimize their own responsibility in whatever it is they are accused of doing.

7 Another way is the carefully determine whether there are any inconsistencies in the witness’s evidence as they gave evidence. Sometimes a witness will say one thing and an hour later say something else, or there may be out of court statements as there were here, a couple of them, that contradict features of the evidence that the witness gave under oath. If these inconsistencies are there, of course a good counsel will give the witness an opportunity to explain them and sometimes inconsistencies can be explained satisfactorily. One looks at the sophistication of a witness. How old is the witness? How intelligent is the witness. Where does the witness’s background come from? At the end of that a general then conclusion about (a) the reliability of a witness, and (b) the sophistication of the witness. So that is the process.

8 This case, more than most cases, has caused me concern, and it is not every case that a judge takes home and thinks about and agonizes over and is bothered. This is one of those cases, and the reason is that my overall impression of A.O. was very positive. She was no match for what went on here in these two days. First of all she was examined in chief and gave her evidence and she was not in the witness stand very long for that. She was not given opportunities to explain some of the inconsistencies in her statements. There were a number of things that did not happen in examination in chief and as I listened to the cross-examination it occurred to me that – I wondered why.

9 The defence counsel here, quite frankly, and I do not think he has ever appeared in front of me before, but I could be wrong on that and I apologize if I am, but I certainly do not remember him, was probably one of the most prepared, most thorough, most professional cross-examiners I have ever witnessed. Every detail was at his immediate recall. This young woman in the witness stand was confronted with every conceivable inconsistency; some explainable, some she did not do a very good job of explaining, and as I watched the trial develop it occurred to me that this young witness was in for a challenge. Quite frankly, I was impressed by her credibility, impressed by her reliability, but there were many, many inconsistencies brought out in cross-examination that she really did not get an opportunity to explain, and I am talking about the two previous statements that she gave to the police, and I have gone through – I do not think I am going to go through them all, or even very many of them, the inconsistencies that were raised by defence counsel that he submitted by way of a written submission at the end of his argument. Actually he gave it to me as he argued to that he could help me go through where he was coming from and they were very helpful.

10 And so while I believed her and whatever comes from this case, I want her to know that; I believed her, and I was impressed by her.

11 Her father gave some evidence. He impressed me as a believable, credible, witness, but as defence counsel points out, there were a few things in his evidence that confirm the argument of the defence here with regard to the skinny jeans and with regard to her wanting to sleep in the boy’s bedroom and some other things.

12 K.G.P. gave evidence. I was singularly unimpressed with his evidence. I thought he was cocky. I thought he was confident. I thought that he was dismissive of the allegations against him and he did not impress me very much.

13 His mother gave evidence, completely, one hundred percent in his corner, as most mothers are. She saw things through rose coloured glasses in my view; sees her son as an innocent victim of some diabolical conspiracy by this thirteen-year-old girl, and so I took his mother’s evidence as someone not very objective.

14 And so at the end of the evidence I can tell everyone in the courtroom, quite frankly, I was ready to convict the young person. It was the argument of defence counsel that gave me pause, and so much so that I did something that I don’t often do, and that is I reserved my judgment and I have gone over the argument and I have gone over the inconsistencies alleged and there are considerable inconsistencies. What I have been wrestling with, quite frankly, is whether the doubt I have is a reasonable doubt, or whether it is just the evidence is there and I have been persuaded by an excellent defence counsel that there is a doubt where really no real doubt exists, and I have come to the conclusion that if I’m agonizing so much about this case, that must mean to me that there is a reasonable doubt, and that is the basis that I am going to find the defendant not guilty of both counts, not because I believe him. I think it probably did happen the way she said it happened, but in my duty, and this is a case where R. v. W.(D.) is the case that decides it for me. I have rejected his evidence, but I still am left with the conclusion that the Crown has failed to prove his guilt beyond a reasonable doubt and therefore he is free to go. I find him not guilty of both counts.