R. v. A.J., 2023 ONCJ 599

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. CITATION: R. v. A.J. , 2023 ONCJ 599 DATE: November 24, 2023 Court File No. 2811-998-22-28106359-00 ONTARIO COURT OF JUSTICE HIS MAJESTY THE KING v. A.J.

********** R E A S O N S F O R J U D G M E N T BY THE HONOURABLE MISTER JUSTICE P. TETLEY on November 24, 2023, at OSHAWA, Ontario ********** APPEARANCES : A. Mavridis Counsel for the Crown A. Richter Counsel for Ms. A.J. TUESDAY, NOVEMBER 24, 2023 Tetley, J. (Orally): Firstly, I want to thank the lawyers involved in this difficult proceeding. I also want to thank those who attended throughout. It is not often we have a full courthouse. I wish it were under different circumstances, but I appreciate those who have taken time to attend this trial.

What I propose to do, as I indicated yesterday, I am going to provide more extensive written reasons that can issue in due course. I wanted to deliver judgment, at least as far as the verdict is concerned, given the fact that this matter has been outstanding now for more than a year, and I know it has occasioned difficulties that Ms. A.J. has talked about during the course of her testimony. A.J. is charged with two criminal offences. The offences are alleged to have occurred between February 1, 2018, and June 30, 2018, at Clarington.

The charges alleged are a sexual assault of J.T., contrary to s. 271 of the Criminal Code , and sexual touching of an individual under the age of 16, namely J.T., contrary to s. 151 of the Criminal Code . The Crown elected to proceed by indictment on these charges, and the defendant elected trial in the Ontario Court of Justice. This matter is subject to a publication ban under s. 486.4(1) . That ban directs that any information that could identify the complainant or a witness not be published in any document or broadcast in any way. The trial of these charges commenced on October 31, 2023.

The defendant entered a plea of not guilty on that date to both of the charges

alleged. The Crown’s case consisted solely of the testimony offered by the complainant, J.T., who was 12 at the time of the alleged offence and is now 17 years of age. The defence called seven witnesses, including the then Child Assault and Sexual Assault Officer involved in fielding the initial complaint, Constable Matthew McLaughlin, of the Durham Regional Police Service; the officer in charge of the case, then Detective, now Sergeant Amanda Rabishaw; the defendant, A.J., testified in her own defence; M.M., the complainant’s Grade 6 teacher back in 2018, testified; two teacher’s aides, T.D. and M.C.; and Ms.

A.J.’s family physician, testified this morning. In determining the outcome of this case, I am mindful of the limitations, and the Crown outlined them in passing, that might reasonably be expected to be present when an individual, particularly a young person, endeavours to recall events that are alleged to have taken place some years ago.

The related case law arising from similar prosecutions directs that the same degree of precision in detail with respect to ancillary considerations like the place of the offence, the date or time of the offence, or other surrounding circumstances that might reasonably be expected to be recalled accurately were the events recounted by an adult, are not to be expected in situations where the complainant was a child, or a youth, when the offences are asserted to have occurred. In reaching a verdict, I am also mindful of the burden of proof, and the fact that the burden of proof rests on the prosecution.

The defendant is presumed to be innocent. The Crown must establish proof of the offence on the basis of proof beyond a reasonable doubt. That is the standard of proof that applies in a criminal case. It is a standard of proof that has been defined by one judge of the Supreme Court of Canada, Justice Iacobucci, in a case called R. v. Starr , as being much closer to proof to the point of near certainty than the more- likely-than-not or balance-of-probabilities standard that applies in a civil case.

As this case involves an assessment of credibility of the two primary witnesses in this trial, the complainant and the defendant, I am mindful that I can accept all, some, or none of the trial testimony offered. In the case of the defendant, if I accept the denial of wrongdoing, an acquittal must follow. Alternatively, if I am left in a state of reasonable doubt by the testimony offered by the defendant, the defendant must similarly be found not guilty.

It is only on the establishment of proof of the offence on the criminal standard of proof beyond a reasonable doubt, on consideration of all of the evidence presented, including that offered by both the complainant and the defendant, that a finding of guilt can be made.

In assessing the complainant’s account of events, I note the inherent inconsistencies in the complainant’s recounting of the circumstances of the offences, from the initial 911 call on August 10, 2022, to the initial police report to Constable McLaughlin, the first formally recorded police interview on August 26, 2022, and the follow-up interview on October 21st, 2022, along with the considerations arising from variations with respect to those previous statements and the complainant’s trial testimony.

While some of the differences between the account of events offered by the complainant may be attributed to the fact that the events, as I have referenced, occurred a long time ago, now more than five years ago, the factual representations or factual variations, in my view, are not so easily explained.

Noted inconsistencies, as outlined by the defence in final submissions, include: the timing of the disclosure, if any, to the complainant’s parents; the date or time of year when the incident took place; details of the clothes that were worn by both the complainant and defendant; and most significantly, what we now know to be the material misrepresentation that the sexual interaction took place in a room that was equipped with a door that could lock.

The trial record establishes that the specific room referenced by the complainant as the location where the sexual assault occurred had no door lock at the time of the offence. Reference to the clothing worn by both the complainant and defendant as being pants, then shorts and a blue dress, then shorts and a blue-and-white-striped dress lend further uncertainty to the reliability of the complainant’s purported recollection.

Initial acknowledgement of subsequent post-incident contact with the complainant by the defendant, versus a representation that there was no post-incident contact, apart from a brief meeting in which candy and a so-called fidget toy were provided, further undermine the reliability of the complainant’s account, in my estimation. Most significantly, the trial record confirms the complainant faced a number of behavioural challenges during the timeframe when the events are alleged to have occurred. He suffered from Attention Deficit Hyperactivity Disorder, and a largely undefined mental health issue or issues.

These challenges manifested themselves in regular emotional outbursts of a violent nature, rendering it unsafe for the complainant to be in the company of others unsupervised. This circumstance is also concluded to cast doubt on the reliability of the complainant’s assertion that prior incidents of touching of a sexual nature led to an unanticipated and unplanned private sexual encounter with the defendant, in which

an act of sexual intercourse took place. Trial testimony from the complainant’s teacher and two other educational assistants confirms that the complainant could escalate and become violent without warning and with little provocation; that he was untrustworthy, impulsive, unpredictable, manipulative, and deceitful; and that he had a penchant for blaming others for his own shortcomings. The trial record also establishes that the complainant was resistant to authority, did not like to be observed, and was largely socially isolated.

These concerns dictated the positioning of the defendant in the classroom, as she engaged in her supervisory duties as an educational aide, without being in the direct view of the complainant. These characteristics are also concluded to undermine the reliability of the complainant’s account of repeated incidents of gratuitous touching of a sexual nature by the defendant, or a private sexual encounter that included sexual intercourse, as alleged.

The trial record leads me to conclude that the complainant was only able to attend class due to the continuing presence and skillful interventions of both the defendant and her colleagues. The professionalism displayed by those who were tasked with this difficult job of supervising the complainant cannot be understated. The criminal complaints in this case are atypical and unusual, given that they involve impropriety of a sexual nature involving a 12-year- old boy, including

an act of intercourse while school was in session. That characterization and those factual considerations might reasonably have been expected to call for a careful, impartial, and comprehensive investigative response, with a view to attempting to independently confirm aspects of the allegation that could be subject to confirmation or verification. Unfortunately, that did not occur, despite the foreseeable consequences of this complaint in relation to the defendant.

Consequences that included a loss of employment, loss of reputation in the community, restrictions on the defendant’s ability to care for her own children, compromises to the defendant’s mental health and physical wellbeing, and marital stress. The investigation appears to have been further compromised by directives from the administration of the related Board of Education to certain school employees not to disclose information that might have resulted in a more complete understanding of the challenges faced by the complainant at the time of the alleged offence.

I accept the account of events offered by the defendant, who I conclude to be a reliable informant and a credible witness. The account of the complainant is concluded to be unreliable and contrived. The Crown having failed to provide proof of the offence alleged, the defendant shall be found not guilty and the charges noted dismissed.

150 Bond St., E., Oshawa, Ontario 2811_407_20231124_091338__6_TETLEYP.dcr MR. RICHTER: Thank you very much, Your Honour. THE COURT: Good luck to you, Ms. A.J., and to your family. MS. A.J.: Thank you, Your Honour. ********** FORM 3 ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)) Evidence Act Elizabeth Walsh I, , (Name of Authorized Person) certify that this document is a true and accurate transcript of the recording of R. v. A.J. Ontario Court of Justice ​​​​​​​​​​​​​​​​​​​​​​ in the (Name of Case) (Name of Court) held at (Court Address) taken from Recording , which has been certified in Form 1.

November 3, 2023 _________________________________________ (Date) (Electronic Signature of Authorized Person(s)) A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate