Crown:  S. Arnold, Office of the Crown Attorney, Toronto
Defence:  Craig Penney, Criminal Defence Lawyer, Toronto

¶ 1   THE COURT: We are here for judgment in the Mr. M.O. matter. Mr. M.O. is charged with sexual offences upon "C" between March 2002 and September 2005. The Crown proceeded by indictment. The defendant elected to be tried before this court and pleaded not guilty. I heard evidence from the complainant and her mother. The defendant also testified and denied the allegations.

¶ 2   I will refer to the complainant as C throughout these reasons. C is currently 16 years old. She testified that on two occasions when she was between four and six years old, and perhaps still three years old, M.O. forced her to touch his penis and perform oral sex on him. M.O. was her mother's boyfriend at the time. C was sure these incidents happened while she and her mother were living at the apartment on R*** and before they moved homes when she was in grade two.

¶ 3  The first incident she described as occurring when she awoke in the night and could not sleep. She went into the living room where M.O. was watching TV with a blanket covering him to his waist. She sat next to him on the couch. He took her hand and put it under the blanket to touch his penis. When she pulled away he said "It's okay. It's like a hot dog." He took her hand again and guided it to his penis. The next thing she remembers is both of them walking to her bedroom, where he said she had to perform oral sex on him. He was laying down and she was on top of him. She put her mouth on his penis and he ejaculated in her mouth. She recalls going to the bathroom to spit in the sink. When she returned to the bedroom he said "It is okay and everything."

¶ 4  She had no recollection of what her relationship with M.O. was like before the assault. She also had no recollection of whether her relationship with him changed after the assault. She simply had no recollection of her relationship with the defendant other than the two incidents to which she testified.

¶ 5   The second incident occurred in the basement of the defendant's parents' home. C testified that she had been to his parents' house before and in fact had stayed over there occasionally. On this occasion she was in the bedroom in the basement while her mother was in the shower, which was also in the basement. M.O. came into the room where she was lying on her left side. He took his penis out while he was standing. She remembered performing oral sex on him. She did not recall how long it went on. She recalled him walking out of the room. In cross-examination she frankly admitted that she did not recall many details of the second incident, including whether the defendant pulled his pants down or pulled his penis out. Further, at the time of her police statement she did not remember whether he ejaculated or not. However, since giving her police statement she has come to remember an image of him ejaculating while standing. She could not recall if he masturbated himself to ejaculation or whether that occurred from oral sex.

¶ 6   C testified that most of her flashbacks relate to the first incident. The flashbacks started when she was 14 years old. She said that the flashbacks come in bits and pieces, or as discrete moments in time, and then she tries to recall and process it. Once she has a flashback it goes into her memory. C candidly admitted that with regard to the first incident she does not have an active memory of how she got from the couch to the bed. Rather, she filled in the narrative with the walk from the couch to the bed based on an assumption.

¶ 7  The first time C disclosed to anyone was approximately one year ago when she told her 17-year-old cousin who convinced her to tell her mother. C testified that she disclosed because "It was in my head so often. I was so upset. It was constantly on my mind. I couldn't keep it out of my head and try to figure it out on my own." She told her mother, and then went to her doctor to get a referral to a psychiatrist. The doctor told her to go to the police.

¶ 8  C believed that she had contact with the defendant over Facebook when she was in grade five. She recalled him asking about her school. She replied that she was in grade five. C's mother maintained a relationship with the defendant's parents for some time after they broke up, and C would have visited the parents' house a few times post-breakup. However, C testified that she has not seen the defendant since he and her mother broke up in 2005.

¶ 9  C was certain that she could not have mistaken M.O. for anyone else. She clearly remembered that it was him doing these things to her. However, she had almost no memory of other things that happened in the timeframe of the information.

¶ 10  The mother's evidence merely confirmed the timeframe of her relationship with the defendant and her time at the R*** apartment. She also testified about C's disclosure to her approximately one year earlier.

¶ 11  The defendant testified and denied both incidents entirely. He confirmed that his relationship with C's mother lasted from 2002 until 2005 and that it was a rocky relationship. He admitted to being verbally abusive to C's mother and that he was abusing drugs at the time. He testified that he has overcome his drug problem for eight years now. He admitted that C spent time at his mother's house and that he stayed over at the R*** apartment. In-chief he testified that there were times when he and C were alone when he would occasionally babysit or care for her. In cross-examination the Crown brought out that during most of his statement to the police on March 27th, 2014 he maintained that he was never alone with C, although by the end of the interview he indicated that he was not saying that there was never a time when he was alone with her.

¶ 12  The Crown also brought out other inconsistencies between M.O.'s trial evidence and his police statement. Further, in the police statement M.O. tries to point a finger at C's uncle. After some evasive answers to questions about this attempt at finger-pointing, M.O. finally admitted in the stand that he was suggesting that the uncle was a possible perpetrator.

¶ 13  Mr. M.O. admitted that his most intense use of cocaine, ecstasy and marijuana coincided with his relationship with C's mother. However, he adamantly denied that it was even possible that he would ever have done such things to C as she described, even under the influence of drugs.

¶ 14  The ultimate issue is whether I am satisfied beyond a reasonable doubt that the defendant sexually touched, invited and assaulted the complainant in the manner described on two occasions, between March 2002 and September 2005.

¶ 15  It is well known that the criminal standard of proof is a high onus indeed. The defendant cannot be convicted unless the court is satisfied to a near certainty that the events described by the complainant occurred.

¶ 16  I find that C was endeavouring to provide her honest recollection of the relevant events to the court. Mr. Penney fairly and reasonably conceded as much. The court has no doubt that C was genuine in her efforts to be as accurate as possible in her testimony. However, this criminal case really turns on the reliability of C's evidence. C was obviously a very young child when the events are alleged to have occurred. The passage of more than ten years itself creates frailties in any witness's ability to recall and recount the events at issue here.

¶ 17  C was from three to six years old at the relevant time. She recalled only basic detail and little context relating to both events, and at least parts of the memories were constructed by assumption or flashbacks. Especially considering the sincerity of the complainant, it may well be that the court could have been assisted by an expert on memory in this case.

¶ 18  It was well established by all of the evidence that Mr. M.O. was in a relationship with the complainant's mother during the timeframe of the information. The defendant clearly had the opportunity to commit the assaults C believes were committed upon her. The complainant was correct in her memories about the general layout of the R*** apartment and the defendant's parents' basement. However, she had almost no other memory of events that happened in the timeframe of the information. When the court considers the frailties of the complainant's evidence concerning events from the distant past, together with the defendant's denial, particularly his more convincing denial when he was first confronted with the allegations at the police station, I am left with a reasonable doubt.

¶ 19  In the result, the defendant is acquitted of all of the charges before the court.