R. v. Friel, 2011 ONCJ 552

WARNING The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

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

i) to (iii).

(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 complainant of the right to make an application for the order; and (

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

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

summary conviction. Regional Municipality of York – Newmarket Courthouse Information #10-02591 DATE: October 11, 2011 Citation: R. v. Friel , 2011 ONCJ 552 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — LAWRENCE FRIEL Before Justice Peter N. Bourque Heard on May 16, 2011 and May 17, 2011 Reasons for Judgment released on October 11, 2011 J. Fuller ..................................................................................................................... for the Crown

D. J. Reeve ...................................................................................... for the accused Lawrence Friel Bourque J.: Overview [1] The defendant is the operator of a bar known as the W[…]. [2] The complainants are two women who had worked at the bar of the W[…]. The defendant is charged with three countsof sexual assault upon one and a further count of sexual assault upon the other. [3] At all times I am mindful of the burden upon the Crown to prove these charges beyond a reasonable doubt. [4] R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320 states as follows: The burden of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, thepresumption of innocence: Reasonable doubt is not a doubt based upon sympathy or prejudice; Rather, it is based upon reason and common sense; It is logically connected to the evidence or absence of evidence; It does not involve proof to an absolute certainty, it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and, More is required than proof that the accused is probably guilty – a (Judge) jury which concludes only that the accused is probably guiltymust acquit.

Crown Evidence H.P. [5] The witness is a twenty-two year old woman who in October 2009 began to work as a waitress at the W[…]. She saysthat one day in October 2009 (near Halloween) the evening was slow and she asked the defendant to drive her home. She states that shewas alone with him in his pickup truck and she was directing him to her house.

She could not pin down the date except it was betweenstarting work and Christmas that year. [6] She describes that the defendant stopped the vehicle in the middle of the street and reached over and tried to kiss her,but she moved and she felt his mouth and tongue on her left cheek. The drive resumed and when she went to her home she was upset andcrying but did not tell her right away of the incident. She said her face and neck were red. [7] She related another incident on “Superbowl weekend” in February 2010. At one point she went into the office for somework related task.

The defendant was there at his desk and closed the door. She stated that he grabbed her side and her bra strap gotpulled. The pad inside her bra came out. He then put his hand into her pants, over her underwear, and she crouched down and the handcame out. [8] She described another incident around Halloween in 2009 when she was in a costume (all the staff were), and she hadher coat over her costume. She said that he tugged a few times on the zipper of her coat, wanting to see her costume.

The Crownsubmitted in the course of the trial that this did not constitute a sexual assault and asked me to dismiss count #1 of the information and Ido. [9] Ms. H.P. stated that she spoke to one Shannon at the bar and, sometime later, he took her to the police. [10] In cross-examination, the following issues were raised: • Contrary to her evidence in-chief, she told the police initially that, after the defendant tried to kiss her in the truck, she jumped outand ran home. She admitted that was not true.

She said it was because she was embarrassed. • When she got home, while she said that she was crying and appeared to be upset, she then sat with her roommate and drank andwatched television. • With regard to the incident in the office, she was unsure about a lot of details, including the position of the parties and the clothingshe was wearing. In fact, whether or not she was wearing trousers (as she stated in-chief) or leggings (as she admitted in cross-examination) would have made a difference to the “mechanics” of the incident.

She stated that her trousers were “baggy” and that madeit easy to see how his hand went down her waist band. The leggings would have been quite different.

• She was very unclear as to the dates of the alleged occurrence in the truck. As a result of the information provided to the police, the information was drafted that it occurred early in November 2009. As a result of her testimony, she could not say when, between October 1, 2009 and December 25, 2009, it had occurred. • She spoke to several employees about these incidents at the end of February when they approached her. Her recitations of some of her allegations are not consistent. • With regard to the first count, the facts she discloses do not constitute any type of sexual assault.

This could be the result of a faulty memory, which could impact on her general credibility. E.B. [ 11 ] The witness is a roommate of the complainant H.P. She states that on a day in November 2009, she was asleep at home on the couch. She had been watching television and had consumed some two to three drinks of alcohol earlier in the evening. At around 2:00 a. m. she was awakened by the dog barking when H.P. came in.

H.P. was upset and was holding her neck and E.B. stated that H.P. said the manager had been driving her home and had pulled to the side of the road, taken off his seatbelt, tried to kiss her and grabbed her. The witness did not make observations of H.P.’s neck. After this was revealed they had a drink together. H.P. did not speak about it again until she went to the police some two months later. [ 12 ] In cross-examination E.B. became unclear about the date and it could possibly have been into 2010 that this conversation happened.

She also stated that she thought her friend H.P. was a “strong” person. [ 13 ] She does not confirm some aspects of the evidence of H.P., at least with regard to the incident in the truck. The dates are very unclear, but so is the complainant. They are of course roommates and they certainly spoke about this matter. I did not get the impression that they had seriously “compared notes” about the conversation. I think they would have been more certain about the dates if they had extensive discussions. There is also the possibility that the witness is somehow tailoring her evidence to assist her friend.

I do not get that impression. She gave her evidence in a forthright manner and did not try to embellish. C.O. [ 14 ] The witness is twenty-five years old. [ 15 ] She worked at the W[…] between November 2008 and the end of November 2009. She stated that she was let go after a yelling incident with the defendant in December 2008. She returned two months later. She left herself in the summer of 2009, with another manager, and then returned after the summer. She was working for about a month when she had a back injury and was off for about a month.

The incident that she relates below was when she had just come back and was still feeling the effects of her injury. [ 16 ] She relates that the defendant made her feel uncomfortable. She related one incident where he picked her up by her ears and, when she was close to his crotch, stated, “Do you like liquor?” The witness immediately told him that she did not appreciate him doing that.

She stated that on another occasion he grabbed her hard by the arm and on another occasion had done a “bum tap” and told her to get back to work. [ 17 ] She stated that one evening, on a Tuesday, she was alone in the bar with the defendant and only one other customer. While she and the defendant were working on an employee work schedule, he reached over the bar and down her v-neck t-shirt and pinched her nipple. She stated that she jumped back and told him not to touch her.

She said, “It’s not funny, don’t do that again.” [ 18 ] She remained in the bar and went to stand by a pillar and she felt him behind her rubbing her bum over her trousers. She then stated that the customer left and, as she was closing the debit machine, he came up behind and pressed against her and put his hands up her shirt and tried to put his hands down her pants. He was using both hands and they were just below her hip bones. She said that she flailed around and told him to stop.

She said that this happened for about thirty seconds. [ 19 ] She had no way to go home and had arranged for him to drive her home, so she let him drive her home. She told her neighbour that evening what had happened. She was outside having a smoke and met the neighbour doing the same thing.

She did not return to work again, although the defendant called her several times for a week asking her to return and one time stated: “I hope you are okay.” She stated that when she was away from work for an extended time with a back injury he had never called her at all. [ 20 ] She did not go to the police until over a month later and stated that she didn’t want to be talked about amongst the community of bar workers in Newmarket. She stated that she met H.P. at the mall and after hearing what H.P. said she decided to go to the police.

She also spoke to several others from the W[…] about what had happened. [ 21 ] She admitted in examination in-chief that she did not like the defendant’s management style and was let go by him on an earlier occasion. She stated this quite freely. [ 22 ] The witness was vigorously cross-examined. It was pointed out that she had several issues with the defendant including, her rate of pay, the fact that she got no compensation from the defendant when she was off with her back injury, and that she generally did not like him and attempted to avoid him.

She did not recoil from any of these suggestions and admitted quite openly that her relations with him were bad. [ 23 ] She admitted that she had not gone to the police until several months later, and it was her meeting (she says it was by chance) at the mall with H.P. and hearing H.P. talk about her incident in the defendant’s truck that she decided to speak to the police.

[ 24 ] She realized that by the time she went to the police that there were further problems at the W[…] and several people did not like the defendant. She spoke to some of them. K.L. [ 25 ] The witness lives next door to the complainant C.O. He states that they would often speak over the fence separating their properties. [ 26 ] He recalls two conversations with C.O. about issues she had with her manager at work. He is unclear about the exact dates.

He believes that it was over a year ago and was between Halloween and Christmas 2009. [ 27 ] He describes a first conversation (he believes it was around 2:00 a. m.) before that and speaking generally of sexual and other improprieties of the manager. [ 28 ] The second conversation was more specific. He remembers that she was “not herself”. She said that her employer had done some touching, maybe on the buttocks, and brushing up against her.

At one point he was under the impression that she may have been raped, although she had only said that he had “forced himself onto her”. [ 29 ] While the witness was not at all clear as to date and specifics (he does not accord in its entirety the evidence of the witness C.O.), he did speak of her complaints about the sexual advances of the defendant. He was also not in accord with her about where exactly the conversation took place (she said they were sitting in his truck).

His recitation of what she said contains elements of the totality of her complaints against the defendant, not just the one event on November 24, 2011. [ 30 ] In that sense he does confirm some aspects of her evidence, but I do not place a great deal of weight upon it as the Crown must prove the specific act complained of on November 24, 2011. Defence Evidence Shannon Anstey [ 31 ] The witness worked at the W[…] from December 2009 to February 2010 in security.

He knew H.P., but does not recall ever speaking to her. [ 32 ] He never observed any inappropriate activities with the defendant in the twenty-four times he had been working there. He stated no one asked him to lock Larry’s door. This contradicts an assertion by H.P. that she stated “jokingly” that he should watch the door. Shakeel Iqbal [ 33 ] The witness worked on two occasions; once from the fall of 2008 to when he was terminated in August 2009, and then he was rehired and worked from September or October 2009 to the end of 2009. He states he was let go in August 2009 for lack of work.

He states he was let go at the end of December 2009 because he wanted to be paid more than the $100 cash per evening for working New Year’s Eve. He had asked for the increase for all of the security staff and it was his impression that all of the security staff were let go. [ 34 ] He knows H.P. and stated that one evening late in September or October 2009, at closing time, he saw the defendant in his office with H.P. He stated that the office door was usually closed and locked during the time the bar was open in the evenings. He saw the defendant put his hand up H.P.’s skirt.

He stated that she gave a nervous chuckle and walked out of the office. He never spoke to H.P. about this incident or any other incident with the defendant. He related that the defendant was hard to get along with and had some arguments with him a couple of times. From the time of his firing in December 2009 until his contact with the police in March 2010, he did not discuss these matters with anyone. [ 35 ] He stated that on one occasion he saw the defendant grab C.O. by the arm.

T.W. [ 36 ] The witness was also working in security at the W[…] from March 2009 until December 2009 or January 2010. [ 37 ] He states that he was never called again into work, but was never told why. He is a friend of H.P. and has spoken to her about her complaints about the defendant, at least with regard to the incident in the truck. He stated that sometime in the winter she told him that the defendant tried to kiss her in the truck.

He made some reference to her telling him about grabbing her breasts and crotch, but he was not sure that it was referring to the incident in the truck or some other incident. [ 38 ] He said that he had spoken to others about complaints about the defendant and that included persons named Carly and C.O. With regard to C.O., he says that he spoke to her in the summer of 2009 and she told him a story which was very similar to the story H.P. told about the incident in the truck.

[ 39 ] In cross-examination he admitted that he could be confused with what H.P. had told him. [ 40 ] In response to the defence counsel asking if he had seen the defendant acting inappropriately, he stated that the defendant generally was very “sexual and sensual” with the staff, and that he seemed flirtatious in his actions. He describes hugs that “linger too long”, and the way he looks at girls is disturbing. Wayne Glen [ 41 ] The witness worked for the defendant between August 2009 and March 2010. He was considered a manager of the W[…] and another bar which was upstairs.

He did not socialize with any of the employees at the W[…]. [ 42 ] He confirms the evidence of all the employees; that they were paid in cash and working in conditions which were somewhat undefined. He describes that he had a falling out with the defendant over the future of the bar as it was not doing well financially.

He told the defendant, in March 2010, that he was not coming in any more to work for him. [ 43 ] Just before that, H.P. and T.W.had come to see him and he had a conversation with them in the parking lot of the W[…]. [ 44 ] He stated that H.P. told him about the incident in the office, although he was left with the impression that the events may have taken place in the storage room and not the office. She also talked about the incidents in the defendant’s truck and at Halloween. [ 45 ] Some of the details he related were not completely consistent with H.P.’s evidence, but in general terms it was consistent.

He stated that she was upset and crying and it came out “in bits and pieces”. [ 46 ] He stated that at the meeting in the parking lot he stated that he felt some responsibility as manager and that if she went to the police he would go and give a statement. He stated that when she went a few days later he went separately to the station and gave a statement. [ 47 ] The defence counsel asked the witness if he had seen anything “inappropriate” with the defendant.

He felt that there was inappropriate touching and “putting your arms around people and making comments with the bartenders was inappropriate.” He stated that on one occasion he felt that one of the bartenders had gone home early because of the defendant’s actions. He spoke to the defendant that evening and said that the defendant’s response was that she was leaving with regard to a “boyfriend issue”. Analysis of Evidence Shannon Anstey [ 48 ] He is the least involved in any of this. He did not speak to any of the complainants. He did not see any inappropriate conduct.

He states he had never been asked by H.P. to “watch the door” of the manager’s office when she was inside. Shakeel Iqbal [ 49 ] He relates an episode in the defendant’s office where he saw the defendant reach up the skirt of H.P. She did not mention this. He may be speaking of the incident she describes in the office, but it is so different that I do not think I can give it much credence, one way or another. He stated that the only other inappropriate contact between the defendant and an employee was when he saw the defendant grab C.O. by the arm.

This corroborates part of C.O.’s evidence. [ 50 ] He confirms that general working conditions were not good and that he was not asked back after December 2009 because he asked for more money for New Year’s Eve. I do not think he has any specific grudge against the defendant. He was not impressed with him as a boss, as indeed were any of the employees who testified at this trial. [ 51 ] I do not believe he had any discussions with any of the complainants about their evidence either before or after the police complaint.

T.W. [ 52 ] This witness clearly was a friend of H.P. and was encouraging her to go to the police. He had spoken to others. The question is, was his intervention such that he has “contaminated” the evidence of H.P. and C.O. to the point that it becomes unreliable? [ 53 ] With regard to the stated conversation with C.O., I discount it entirely. She did not mention it. The occurrence is something that she did not complain about and denies. Either he is just confused or sought to embellish his information with the police.

Specifically, it does not affect my ultimate assessment of C.O.’s evidence. [ 54 ] The issue is whether it affects H.P.’s evidence. It confirms what she had testified to in several respects. She denied hearing anything about C.O.’s complaint. She denied hearing anything about Carly. We were not given any information that Carly had ever made any complaint.

Wayne Glen [55] The witness impressed me as being quite thoughtful in his replies to counsel’s questions. He also had some problemswith the defendant, but he also did not appear to have any real grudge. For example, in passing he stated that the defendant still owedhim money. I had the impression that it was not a great concern for the witness. He largely confirms many parts of H.P.’s statementsabout the three incidents.

Some details were different but, in the context of how he heard it, I do not place a great deal of weight on thedifferences. [56] H.P., and to a certain extent Tim, were seeking his advice as he was known to them as a manager of the W[…]. Theirdiscussion was not, in my opinion, conspiratorial. He felt a responsibility, and he went to the police station when she decided to go to thepolice. [57] His comments, about the inappropriate nature of the conduct of the defendant do, in my opinion, confirm in a general waythe evidence of the complainants.

The defendant did hug and banter with the female bartenders in an inappropriate fashion. I accept hisevidence in that regard. Analysis of the Evidence of H.P. [58] I have pointed out some of the difficulties with the witness’s evidence. • Her evidence was very vague and she often complained of memory lapses. • The allegations were lacking in detail. • The evidence of the witness Shakeel Iqbal with regard to his seeing an assault by the defendant upon the complainant is sodifferent from her account that it cannot be the same thing.

Perhaps she was assaulted by the defendant on this occasion as Shakeel Iqbalsays, but that is not the charge before the court. She only describes the one incident. How can the trier of fact not be left in a state ofirreconcilable confusion? • There were several important differences between her evidence in court and her statement to the police. [59] I could be left with a lingering doubt about her evidence. Analysis of the Evidence of C.O. [60] The witness seemed to be very forthright at all times.

She did not deflect any questions and, while she was a littleargumentative at times with the defence, she did not attempt to make any excuses for what she had done. She always answered thequestions directly. She admitted that she did not like the defendant, but did not express any real rancour for him. The evidence of theevents was straightforward.

The defence did not point out any inconsistencies with her evidence in court and the statement made to thepolice. [61] The defence properly pointed out that there were the following factors to consider as to whether she had reasons tofabricate her evidence: • She did not like the defendant for a variety of reasons. She thought he was inconsistent and generally a bad manager of people. (Itis difficult to see how this on its own would be a real motive to fabricate. Many people dislike their employers.) • He had not paid her any money when she was on disability, as he had said he would.

The amount promised was $30 per week. The total amount would not exceed some $120; a poor reason to accuse someone of sexual assault. • He had dismissed her once and she had also resigned once. She had returned both times. Again, on its own, a poor reason tomislead. • The issue of her compensation was not settled.

Again, it is hard to see how this would turn into an intention to mislead. [62] In my opinion, none of the above factors are sufficient to displace the consistent manner of her testimony and the otherfactors above which point to her credibility. [63] Of most concern is the degree of discussions with other persons at the Bar. Simply put, has she been influenced by theopinions of her co-workers, especially H.P.? [64] The defence called several witnesses. They are other workers at the Bar. I am asked to accept portions of their evidenceand reject other parts.

I am prepared to assess their evidence on this basis and indeed am prepared, where it may be warranted, to makefindings that they are not always credible. (I agree with the assessment in R. v. Williams, (ON CA) that the general ruleagainst impeaching one’s own witness is “fraught with irrationality”.) They all denied having any specific animus for the defendant,although they all have a potential grevience. [65] The defence is based largely on the hypothesis that the workers (mainly T.W.) circulated stories (some false) about the

defendant to discredit him and eventually the two complainants were enticed to come forward with false allegations against thedefendant. In my opinion, the theory does not stand up to scrutiny. There is no specific reason why all of these people would commitperjury for such an unrewarding goal, that is, the discrediting of the defendant. I specifically find that there is no evidence of such aconspiracy. However, that does not end the matter. I ask myself whether this evidence would, if rejected, leave me with a reasonabledoubt about the allegations of one or both complainants (R. v. W.D.).

I find it does not create such a doubt. This evidence as I have foundit does not go beyond mere speculation. [66] Did C.O. fashion her evidence and fabricate the story in response to their opinions and advice? Based on her performancein the stand, and particularly her response to the vigorous cross-examination, I would say that she has not been so influenced. I alsoconsider the overall consistency of her allegations, notwithstanding the fact that she did not attend at the police in a timely fashion. I alsoconsider the detail of her recitation of the events.

Her response to the actions of the defendant, by not ever going into work again, arealso a logical response to the attack. While her explanation for not going to the police is not without difficulty, it is logically consistent. Her decision to finally go is also consistent. I also consider her letting the defendant take her home in the same light. The defendant’sactions were shocking to her, and she had a right to fear him. It was not her only option, but she made a choice which was notunreasonable. She did not diminish it. It does not, in my opinion, impair her general credibility.

Analysis of the Evidence of E.B. and K.L. [67] Their evidence in support of the allegations of the witnesses, H.P. and C.O. respectively, is similar in that they lack a lotof detail of the conversations and are very unclear about the dates. [68] I do not think that this impairs their evidence greatly as the police did not interview them until some two to four monthslater. The conversation probably did not seem as important to them as it did to the complainants.

It is also clear that in the course of bothconversations, which occurred for a significant time in an evening, they discussed other things. [69] The defence asserts that since K.L. did not recite the conversation in the same fashion as the complainant, then that putsdoubt into the story of the complainant. While there are differences (time of discussion and all of the matters discussed) there is nothingin what K.L. says that in any way significantly contradicts what the complainant says happened to her at the hands of the defendant onNovember 24, 2009.

That he may have been under the impression that she was “raped” is not without some basis. He agrees she neversaid that. The same can be said of the evidence of E.B.. [70] In arriving at my conclusions in this matter, I place little weight on this evidence for the reasons set out above. Thespecific allegations of H.P. and C.O. must largely rise or fall on their own evidence. Has There Been Collusion Between the Witnesses? [71] I find that H.P. and C.O. did meet at the Upper Canada Mall. The two complainants spoke on one occasion before bothwent (separately) to the police.

I believe that C.O., and perhaps H.P., would not have gone to the police without finding out somethingabout each other’s experiences. Does this make their evidence colluded? I believe that it does not. [72] In R. v. J. F., 2010, ONSC 2297, the court stated: [141] Dictionary

definitions of collusion raise notions of secret agreement, plotting or conniving, or conspiring together for afraudulent or underhanded purpose. [142] To the extent that the jurisprudence dealing with collusion speaks of collusion “or some other form of tainting” ... the court,in deliberating upon the admissibility issue, should be alive to instances of witness contamination of a sufficiently serious nature as tothreaten the true existence of coincidence. [143] The evidence may disclose limited contact between complainants as in R. v. L.G., 2009 ONCA 895 , 2009 ONCA895 at para. 5.

Opportunity for collusion may well be the context “in many cases alleging sexual abuse with multiple complainants”(Handy, at para. 111) and communication among sister complainants is “almost inevitable”: R. v. Shearing 2002 SCC 58 ,(2002), 165 C.C.C. (3d) 225 (S.C.C.) at para. 43. But “[t]he issue is concoction or collaboration, not contact.

If the evidence amounts tono more than opportunity, it will usually be best left to the jury”: Handy, at para. 111. [73] It would appear that while both of the complainants did not think a great deal of the defendant (none of the witnessesseemed to have a high opinion of his managerial abilities) they did not, absent the acts complained of, have a reason to “get back” at thedefendant. [74] There was the one conversation at the mall and, while it may have given them some reason to report the incidents, that isquite a different thing from having a reason to deliberately concoct a false set of allegations to cause harm to the defendant. [75] In any event, I instruct myself that I will not use the evidence of one of the complainants to support the other.

There is nosimilar fact application and, while there are some similarities in the actions complained of, I would not have found them to be capable ofa similar fact application. Conclusion

Assault Upon C.O. – Count #4 [ 76 ] I was impressed with the way the witness gave her evidence. It was straightforward and always consistent. Her explanation for not going immediately to the police does weaken her allegations, but not fatally so. Her explanation in all of the circumstances was reasonable. I do not believe she was affected by the opinions of any other witnesses. T.W. may have spoken to her (I do not specifically find that he did) but it is clear from her testimony that he did not have any effect upon her.

I have already dealt with her conversation with H.P. [ 77 ] There is no indication that the statement she gave to the police was different in a material respect from the evidence in court (unlike H.P.). [ 78 ] I have considered whether the fact that she did not refuse the defendant’s offer to drive her home reflects upon her credibility. I do not think her credibility is adversely affected.

While she could have left and sought some other form of transportation home at night, the decision to let him drive her was open to her and she accepted it. [ 79 ] In the essential aspects of her evidence I accept that on November 24, 2009, she was sexually assaulted by the defendant in the manner that she has described. I find that allegation to be proved beyond a reasonable doubt. I find the defendant guilty of count #4. Assaults Upon H.P. – Counts # 2 and # 3 [ 80 ] This witness’ evidence suffers from the defects that I have pointed out above.

With regard to the allegations concerning the evening in the office of the defendant, I have some reasonable doubts about it for the following reasons: • The evidence of Shakeel Iqbal gives me some doubt as to whether the events in the mind of the witness are confused.

I am not saying that they are, but it gives me some doubt. • Some of her evidence is not entirely clear (even in her own mind) and I refer to her attempts to describe the clothing she was wearing when she said that she was assaulted by the defendant in the office. [ 81 ] With regard to the allegation of the incident in the pickup truck, it suffers from the defects noted above.

The fact that she lied to the police about an aspect of it (running away from the truck) give me reason to doubt. [ 82 ] Her evidence about the incident at Halloween with regard to the “costume” could be very different from the story she told the police, and this too impinges on her credibility. [ 83 ] For all of the reasons set out above, I am left with a reasonable doubt about the veracity of the allegations set out by the complainant H.P. and therefore find the defendant not guilty of the charges set out in count # 2 and count # 3. Released: October 11, 2011 Signed: “Justice P.N. Bourque”