R. v. I.A., 2021 ONCJ 61

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows: 138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. I.A., 2021 ONCJ 61 DATE: 2021 02 04 Kitchener BETWEEN: HER MAJESTY THE QUEEN — AND — I.A., a young person Before Justice A. T. McKay Reasons for Judgment released on February 4, 2021

Ms. L. Doherty..................................................................................... counsel for the Crown Mr. J. Drexler.......................................................................... counsel for the defendant I.A. McKAY J.: INTRODUCTION [ 1 ] I.A. is a young person within the meaning of the Youth Criminal Justice Act . He is charged with several offences, including an allegation of being a party to a sexual assault, unlawful confinement, and threatening to cause serious bodily harm to the complainant.

It is alleged that he was part of a group of young men who carried out a sexual assault on a 14-year-old girl in her residence. Her brother J., 13 years old at the time, was present in the home but not in the room where the assault is alleged to have taken place. [ 2 ] The defence challenges the credibility of the complainant and also submits that if the Crown has proven that I.A. was present at the residence, he was not a party to any assault which may have been carried out by other individuals. EVIDENCE J.O. [ 3 ] J.O. was 14 years old at the time of the offence in May 2019.

She was a student in grade 8 at the time. She testified that she knew I.A. because they went to the same elementary school. He was in grade 8 when she was in grade 7. They were not friends who shared common activities. She would see him in the halls of the school daily, but they only spoke to each other one or two times. Their lockers were on the same floor, for the most part their classes were on the same floor and she knew his girlfriend. As she described it, she “just knew him “. After that school year ended, she did not see him for almost one year until a week or two before this incident.

She encountered him by chance on the street. He was with two other individuals who identified themselves as N. and M.K. They chatted briefly. I.A. commented that it had been a while, asked her how she was doing, and indicated that she should “link” with him. Some time after this meeting on the street, she connected on social media with the individual who was introduced as N. [ 4 ] On the morning of the incident, she was at home with her brother. Her parents were at work, and accordingly the rule was that she could not invite friends over. At approximately 11:00 a.m. she received a message from N. on social media.

They exchanged text messages. At times, she would receive a text message on the N. account indicating that it was I.A. messaging her. She testified that the three individuals walked by her house every day. They suggested that they come over to her house. She advised them that her mother was not home. She is not certain exactly what she said, but at one point she indicated her consent for them to come over. [ 5 ] I.A., N. and M.K. arrived sometime between 12:30 to 1:00 p.m. She let them into the house. Her brother J. was home with her. They all sat in the living room and talked for a while.

She did not want them in the house, but she was shy and reluctant to tell them to leave. At some point J. left. She began to get even more uncomfortable because the three young men kept suggesting that she sit on N.’s lap. She felt overwhelmed, and eventually did sit on his lap. She estimated that they were in the living room for anywhere from 30 to 60 minutes. [ 6 ] The three young men wanted to go to her bedroom. She really did not want to, and had a bad feeling about doing so, but eventually said “whatever”. She started up the stairs with the others following her.

She turned to retrieve her phone from the living room, but one of the young men took her by the arm and they continued up the stairs. At that point, she felt scared and felt that she knew something bad would happen. [ 7 ] They sat in her bedroom and talked for a while. At some point, someone mentioned a threesome. She indicated that she did not do that. J. returned home and came into her bedroom. A short while later, the three young men told J.L. to get out of the room. At least N. and M.K., and perhaps also I.A., removed pocket-knives from their pants at different times. They played around with them.

Initially it seemed like a joke. However, when they told J. to get out of the bedroom, they pointed the knives at him and pretended to stab him. They forced J. from the room, and one of them, M.K. to the best of her recollection, held the door so J. could not return. One of them was saying “ride I.A., ride I.A., rub your body against his”. At some point M.K. left the room and went out into the hallway where J. was. She felt she was in shock and didn’t know what to do. [ 8 ] J. was trying to get into the room asking what was going on. She could hear J. through the door.

I.A. left the room, leaving her and N. alone. N. started touching her, trying to take her clothing off. He was touching her breasts, her buttocks and her waist on top of her clothing. She recalls telling him to stop a few times. She was pushing his hands away. This went on for approximately 10 minutes. She managed to get off the bed and straighten her shirt. N. got up and left the bedroom. She saw I.A. and M.K. in the hallway. She tried to follow N. out, but one of N. or M.K. – she could not recall which – came into the room and she was unable to leave. He pushed her back from the doorway and the door closed.

She believes that it was I.A. but is not certain. She thought that she heard a noise from J.’s bedroom. [ 9 ] The male that she thinks was I.A. pushed her onto the bed using a lot of force. He pulled her pants and underwear off and was touching her and put his fingers in her vagina. He put her on her stomach and pulled his pants and underwear down to his ankles,

keeping one hand on her back while doing so. He attempted to insert his penis in her vagina. She kept moving around to stop him. He said that she was too tight and that he was unable to get it in. He was touching her vagina and her buttocks with both his hands and his penis. This went on for approximately 10 to 15 minutes. He was telling her to keep still, but she kept moving. Eventually she was able to get up off the bed. She pulled up her underwear and pants and said that she was not doing this. He got up to leave the bedroom and she tried to follow.

The other two young men prevented her from leaving the bedroom, and asked whether they could invite more friends over. She said no, but the other two young men were already in the house. They came up the stairs from the living room. She had never seen either them before in her life. I.A., N. and M.K. left her bedroom and the two new young men came into it. The others remained in the hallway outside of her bedroom. The five young men acted like they knew each other well. [ 10 ] She was left alone in the bedroom with one of the new men. He removed all her clothing and put her on her back.

He removed his pants and underwear and put his penis in her vagina. He held her down and she was unable to move. She screamed for him to stop. He continued with his penis in her vagina, asking her if she liked it. She heard J. in the backyard yelling at her through the window. The man ejaculated onto her bedroom floor, pulled up his pants and went out in the hallway, exchanging a handshake with one of the other young men. The second of the young men who were last to arrive entered the bedroom. At that point she had managed to get her pants on and was putting her bra on.

The second young man laid on the bed and asked her to perform fellatio. She refused. He grabbed her head and forced it onto his penis, shoving it into her mouth for about a minute. She managed to push his hands away and get her mouth free. He got very angry and got up and left the bedroom. She finished dressing and left the bedroom. All five young men were standing in the hallway at the top of the stairs. They all ran downstairs and out of the house. She saw her brother J. in his bedroom. [ 11 ] She felt ashamed of herself and did not feel like being alive anymore. She felt sick, and “completely taken over”.

She did not suffer any physical injuries. She told J.L. not to tell anyone about what happened. Weeks later, she told a close friend. That person then told her older brother and her mother. She was reluctant to go to the police to file a complaint but felt pressured to do so by her parents. [ 12 ] J.O. was cross-examined extensively. Comparisons were made between her statements to the police made January 8, 2019, and June 20, 2019 and her testimony at trial. There were inconsistencies. For example, her second statement indicated that she did not communicate on social media with anyone but N. that day.

She explained that by indicating that she said so because all of the messages came through N.’ social media account, although some of the messages indicated that it was I.A. sending the message. [ 13 ] There were inconsistencies on issues such as whether she knew N. before the meeting on the street, whether she knew I.A. prior to being in grade 7, and her descriptions of the clothing that the three young men were wearing during the meeting on the street. She indicated that she was confused and stressed when providing her statements to the police.

She agreed that after meeting N. on the street, she thought that he was cute and she was friendly with him. She was uncertain about how exactly she indicated that they could come to her house the morning of the incident. She was also cross-examined extensively about how she identified the parties.

She indicated that between her first statement to the police and her second statement, she had learned from her brother J.L. that N. and M.K. had essentially switched names, each adopting the other’s name while speaking with her. [ 14 ] There were inconsistencies between her two statements and her trial evidence about the circumstances of her going upstairs to her bedroom, her arm being grabbed on the way upstairs to the bedroom, and the degree of force used. There were additional inconsistencies surrounding the exact circumstances of J.L. being forced to leave her bedroom.

Finally, there were inconsistencies in her descriptions of exactly what occurred during the sexual assaults by five different young men, including details such as who touched her where, to what extent each of them undressed and to what extent each of them undressed her. [ 15 ] She was cross-examined as to why she did not disclose in either statement to the police that one of the men had vaginal intercourse with her. She explained that she did not mention it at the time because she was too embarrassed. However, the police detective followed up with her after the statement, and she disclosed it.

She agreed that in her statement to police, she told them that the final two men who assaulted her simply came into the bedroom and touched her breasts and buttocks, and then M.K. told them that everyone needed to leave. She specifically indicated to police that they did not touch her vagina. Again, she indicated that she was too embarrassed during the police statements to disclose the full extent of what happened, but that she later disclosed those details in a telephone conversation with the detective.

She agreed that she left the details out of her statements to police despite being told that she needed to tell the truth during the statements. She indicated that she was too embarrassed to go that far into the details, and that it is not something that is easy to share. [ 16 ] She agreed that the police officer asked her during her second statement if there was any intercourse. The officer said, “you are not hiding anything that would show actual intercourse?”. She responded by saying no. [ 17 ] She agreed that she heard rumours that there was a video of the events being circulated.

Shortly after that, she disclosed the assaults to her friend. That led to her older brother and parents becoming aware of it. Other people started to send her text messages asking her about what happened, but not until after charges were laid. [ 18 ] J.O. was also questioned about an indication in her statement to police that at one point she told J.L. that she could not hold this in anymore and that she was going to speak to their mother about it. She agreed that she did disclose some things to her mother, but not the full extent of the incident.

She also agreed that she did not mention to the police that she disclosed the details to her close friend. She testified that she did not want to get her friend involved in the court process, so she left that information out of her police statement.

There were additional inconsistencies in her statements about whether her older brother disclosed the details to her parents, or her parents disclosed those details to her older brother. [ 19 ] In re-examination, J.O. testified that she had not reviewed any of her police statements prior to testifying because she did not believe that she needed them in order to remember details. J.L. [ 20 ] J.L. is J.O.’s younger brother. He was present at the home the day of the incident. Sometime around noon, three young men came to the house. J.O. let them in. He knew one of the individuals as “N.”.

He had seen that individual numerous times at a community centre, in an apartment complex down the street where a friend lived, and in elementary school. He was shown a photograph

and identified I.A. as another one of the individuals. He had previously seen I.A. around, but had never spoken to him. He did not know the third individual. [ 21 ] When the three young men initially arrived, they all sat in the living room. He was nervous about possibly leaving his sister alone with them. After a short time, there was a discussion about going upstairs. He cannot recall the details other than one of the young men said “let’s go”. J.O. went up the stairs first, with the three young man following her, and him trailing.

He went upstairs because he did not want to leave J.O. alone with the three young men. He did not see any physical contact as they walked up the stairs. They all went into J.O.’s bedroom and talked for a short time. N. then kicked him out of the bedroom, saying that he had to get out because he was being annoying. N. pushed him out of the room and pulled out a pocket-knife. [ 22 ] J. testified that I.A. also had a pocket-knife, which he saw in the bedroom when I.A. lifted up his shirt. He never observed I.A. take out his knife.

When he was pushed out of the bedroom by N., N. put the knife to his neck and told him to stay out of the bedroom and go to his room. He followed those commands. He was worried. He sat in his room alone for a short time. Eventually, two of the young men came into his room and sat with him. They did so one at a time. The door to J.O.’s bedroom was closed and someone was holding it closed from the inside. He knew that because at one point he tried to push his way into the bedroom [ 23 ] Initially J. testified that he only heard muffled sounds coming from J.O.’s bedroom.

He was then shown his initial statement to the police in order to refresh his memory. After viewing that, he recalled that J.O. was screaming for help and yelling for someone to get away from her. That is when he tried to enter the bedroom. He pushed the door open enough to get a glimpse of the bedroom. J.O. was naked from the waist down and one of the young men was touching her private area. He did not really see who was touching J.O., but the person’s clothing looked like clothing I.A. was wearing.

He was shocked and just went back to his room and sat down. [ 24 ] A short while later, N. came into his room and sat with him. N. said “I feel bad for you, you should not have to sit here while they do this”. One of the other young men came out of J.O.’s bedroom. J. was “pretty sure” that it was I.A.. N. indicated to that individual that they had to get out of there soon. That individual stood in his bedroom to prevent him from leaving the bedroom. He heard one of the young men say that they had to wait because he had more people coming. I.A. said “okay, shit, whatever”, and looked very anxious.

At that point it was just he and I.A. sitting in his bedroom for at least 10 to 15 minutes. Then two additional young men arrived at the house. J. described one of them as being very tall. [ 25 ] The tall one went into J.O.’s bedroom for 10 to 15 minutes. During that time he heard J.O. scream really loud once. The tall guy came out of J.O.’s bedroom and the second new arrival went in. When he came out of J.O.’s bedroom 10 to 15 minutes later, he was no longer wearing a shirt. He then heard the five young men talking. One of them, perhaps I.A., said “man, why did you go all full out”.

He asked them what they meant by that. The same person said “leave it, your sister is fine”. For a period of time after that, all five young men were going in and out of J.O.’s room, sometimes two at a time. At one point, N. said to him “so sorry bro, just try not to bring this up much”. The five young men then left the house. J.O. was crying. [ 26 ] In cross-examination, he agreed that he saw the first three young men who came to the house a couple of weeks before the incident because he was with J.O. when they met on the street.

He had known N. since he was quite young and had no issue recognizing him, but he was confused initially by the fact that N. and one of the other young men had switched names. [ 27 ] J. was cross-examined as to some inconsistencies between his testimony and the two statements that he provided to police. He agreed that in his original statement, he told the police that when he was forced out of the bedroom, the young man told him to get out or he would stab him. In that statement, he also said that it was not N., but the other guy who pulled the knife.

He explained that by indicating that originally he was confused about the two individuals switching names. He agreed that in his second statement, he indicated that it was the third male, not I.A. or N. who brandished a knife. He indicated that his second statement must be correct. He was also cross-examined regarding the fact that in his police statement, he indicated that his phone was downstairs. He agreed that the phone was with him in his bedroom. [ 28 ] He confirmed that J.O. told him not to tell anyone of the incident and that a few weeks later she told him that she wanted to tell her parents.

When shown his statement, he agreed that he had told the police that J.O. and himself had decided to tell their parents. However, he testified that their older brother came over and told their parents. R.R. [ 29 ] R.R> knows I.A. through her employment. She had a conversation with him in late June 2019. The police came to the school. I.A. indicated to her that the police were looking for him accusing him of a sexual assault. She asked how old the complainant was. I.A. indicated that she was 14 years old and that she had invited him and other young men to the house.

He also indicated that her younger brother was home. In cross-examination, R.R. confirmed that at the time of the conversation, I.A. indicated that the event happened three months earlier. APPLICABLE LEGAL PRINCIPLES Delayed or incremental disclosure [ 30 ] Appellate courts have made it clear that a delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant. The timing of disclosure depends on the circumstances of particular victim.

There is no fixed rule on how people who are the victims of trauma like a sexual assault will behave. [ 31 ] Similarly, it is not unusual for there to be delayed or incremental disclosure. The decision in R. v. M.H , 2018 ONSC 7366 , summarizes the law with respect to this issue at paragraph 74: [74] Some victims of sexual assault will report immediately, some later; some may incrementally, and some not at all. Some will

tell the truth, initially, and some later. The reasons for not reporting, late reporting, or not being truthful when initially reporting are asmany and varied as the victims, but include fear, guilt, embarrassment, or lack of understanding and knowledge. Justice major said atparagraph 65 in D.D., supra: “In assessing the credibility of a complainant, the timing of the complaint, standing alone, will never giverise to an adverse inference against the credibility of the complainant”. The same applies with respect to delayed disclosure or onlypartial disclosure: see R. v. L.K., 2011 ONSC 2562 , [2011] O.J.

No. 2553 (S.C.J.), para. 24. Child witnesses [32] Appellate courts have also reminded trial judges not to expect children be perfectly articulate. The Supreme Court of Canada hasdescribed children as “vulnerable victims and for a number of reasons their testimonial capacities may range from a complete inability toarticulate recall the events to an ability to recount some but not all of the events”. The standard which would be applied to an adult’sevidence is not always appropriate in assessing the credibility of children.

Again, the Supreme Court has noted that a skilful cross-examination is almost certain to confuse a child, even if the child is telling truth. That confusion can lead to inconsistencies in testimony. Identification evidence [33] It is common ground that identification evidence is an inherently unreliable area; frailty in eyewitness identification is at theheart of many wrongful convictions. Witnesses, though well-meaning with an honest belief, may mistakenly identify individuals.

In-court identification is a form of identification evidence which will attract little weight. [34] Recognition evidence is one form of identification evidence. This type of evidence involves a witness who knows or is familiarwith the accused and recognizes them. The same concerns that apply to other types of identification evidence and the same cautionsmust be considered. The level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence. Parties to an Offence [35]

Section 21 of the Criminal Code provides that everyone is a party to an offence who actually commits it; does or omits anythingfor the purpose of aiding any person to commit it; or abets any person in committing it. Abetting simply means encouraging. Merelybeing present is not enough, unless presence is accompanied by such additional factors as the prior knowledge that the principal wasgoing to commit the offence. Passive acquiescence is not sufficient. There must be more. For example: encouragement of the principal;performing

an act that facilitates the commission of the offence; or performing

an act which tends to prevent or hinder interference withaccomplishment of the criminal act. [36] The

section goes on to indicate that where two or more persons form an intention in common to carry out an unlawful purposeand to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knewor ought to have known that the commission of the offense would be a probable consequence of carrying out the common purpose is aparty to that offense. ANALYSIS [37] At the conclusion of the trial, the Crown acknowledged that it had not made out the offence of threatening and invited the courtto enter an acquittal.

There will be a not guilty finding on that charge. [38] I will deal first with the issue of identification. J.O. identified a photo of I.A. while she was testifying. In the circumstances, thatevidence is of very little weight. However, J.O. testified that she knew I.A. from their time at the same elementary school. For the mostpart, she saw him multiple times daily, she knew his girlfriend, and she had spoken to him on a couple of occasions. I am satisfied thatshe had a level of familiarity with I.A. which makes her identification of him reliable. In addition, that identification is bolstered byevidence of R.R.

Her evidence provides an inference that I.A. was one of the individuals at J.O.’s house. I am aware that herconversation with I.A. took place approximately 6-7 weeks after the incident, and I.A. referred to the incident as occurring three monthsearlier. However, I do not regard that discrepancy in time as weakening the inference that I draw from the conversation. I am satisfiedthat the Crown has proven beyond a reasonable doubt that I.A. was one of the young men who attended at J.O.’s home that day. [39] The issues around this case centre on the credibility of the evidence led by the Crown.

The two main witnesses for the Crownare both children. One is the complainant, a 14-year-old girl at the time of the alleged offence, who alleges that she was sexuallyassaulted by five young men in her own home. Two of the young men total strangers, two were virtual strangers and one was a youngman who was a casual acquaintance one year earlier in elementary school.

The alleged assaults took place over a period of time, and shedescribes them as culminating in forced vaginal intercourse. [40] It is not unusual that in describing such an event, any witness traumatized in the fashion described would have difficultyproviding a precise chronology of the events or some of the details of the events. One would expect those difficulties would bemagnified when the witness is a child. It is also not unusual for any witness in an incident such as the one described to delay disclosure,omit some facts, and incrementally disclose others.

Again, that is particularly not surprising when the complainant is a child discussingsuch personal issues with adult police detectives. [41] The defence submits that the inconsistencies and omissions of evidence in the two statements to police indicated a willingness onher part to fabricate her testimony. The suggestion is that there would be no reason for her to mislead or omit facts from the statementmade to the police. The defence suggests that because she did so, her evidence is not credible.

[ 42 ] There were inconsistencies in J.O.’s description of precisely what acts each individual engaged in while assaulting her. The defence emphasizes the fact that she did not mention vaginal intercourse in either of her statements to police. In fact, she specifically indicated to police that the last two males to assault her did not touch her vagina and in her second statement specifically told the officer that there was no vaginal intercourse. I find nothing particularly unusual about the incremental nature of her disclosure.

I accept her explanation that her reluctance to disclose the entire incident arose from embarrassment, but that she disclosed the allegation of forced intercourse in a follow-up conversation with the detective. The defence also emphasized the fact that she made no mention of initially disclosing the incident to her friend in her statements to police. I accept her explanation that she simply wanted to keep her friend out of the court case.

In the mind of a 14-year-old child, that may have seemed to be a rational and appropriate thing to do. [ 43 ] Inconsistencies in her evidence regarding the specific acts carried out by each of the males and the sequence of those events are understandable given the trauma involved, and her age. Other inconsistencies, such as the details of the conversation which led to the three young men coming to the house, what clothing people were wearing during the meeting on the street and the events in the house, and the precise series of events as they were walking up the stairs to the bedroom area are peripheral matters.

J.O.’s evidence that she was sexually assaulted in her home by five males was largely unshaken with respect to its core elements . [ 44 ] The defence also points to contradictions and inconsistencies in the evidence of J.L., both internally and when compared to the evidence of his sister. For instance, the defence emphasizes the fact that J.L. did not see anyone grab his sister by the arm while she walked upstairs. The defence also points to inconsistencies in J.L.’s evidence regarding the location of his phone while the events were occurring.

The defence points to inconsistencies in the evidence as to specifically how J.L. was removed from the bedroom. The defence submits that J.L.’s observations when he got a momentary glimpse into the bedroom could be consistent with consensual sex. [ 45 ] One can speculate as to why J.L. would not have used his telephone to call for help in this situation. However, there is no fixed way that a 13-year-old boy would react to this situation, particularly with perpetrators nearby or in the same room as him. The inconsistencies on other matters largely relate to peripheral matters.

Given J.L.’s testimony, he was clear that the three young men entered the house and that eventually all of the young people went upstairs to his sister’s bedroom. He was clear that he was forced out of the bedroom and prevented from re-entering. He was clear that on the one occasion when he got a glimpse into his sister’s bedroom, she was naked from the waist down and the young man in the bedroom was touching her private area. After having the opportunity to refresh his memory by viewing his statement, he recalled hearing his sister screaming for help and yelling for someone to get away from her.

When the last two young men arrived, and the tall one went into his sister’s bedroom, he heard his sister scream. His evidence corroborates elements of his sister’s evidence in important ways. [ 46 ] I find that the Crown has proven beyond a reasonable doubt that J.O. was sexually assaulted in her home by the young men who entered the home. The assaults culminated in forced vaginal intercourse and forced fellatio. The Crown has not proven beyond a reasonable doubt specifically what portion of the assault was carried out by I.A..

However, the three young men who initially attended the home, including I.A., were engaged in a common purpose – having sex with J.O., whether she consented or not. At least one of the three young men then invited two additional young men to join in that purpose. The young men took turns assaulting J.O. while some of them kept an eye on her brother so that he could not interfere. All five young men were aware of what was happening and were parties to the offences. CONCLUSIONS [ 47 ] There will be convictions registered for the sexual assault and unlawful confinement. Released: February 4, 2021 Signed: Justice A.

T. McKay