Crown:  P. Bhachu, Office of the Crown Attorney, Belleville
Defence:  Craig Penney, Criminal Defence Lawyer, Toronto

¶ 1   THE COURT:  Mr. K is charged with the offence of sexual assault arising out of an incident alleged to have occurred on the 24th of October 2014. Jurisdiction and identification, in my view, are not issues in that sense.

¶ 2  [The complainant] has testified before the court in what I considered to be a very straightforward and frank manner. I did not have any difficulty with her evidence in a general sense, to be sure. There are some differences, as indicated, with respect to the manner of touching but when one reads the statement, which is Exhibit 2, it puts it into the context of the evidence as explained by [the complainant]. I don't have great difficulty with the majority of that. I have no reasonable grounds, and Mr. Penney I think was fair in indicating, there isn't a substantial reasonable basis to articulate a rational reason for disbelieving her evidence.

¶ 3  Mr. K, similarly, has taken the stand under oath. His statements, on the basis of the Edgar principles, fairly accepted by the Crown, Ms Bhachu, were made as indicated by both the bus driver and the officer in a consistent manner, denying that he had done anything wrong.

¶ 4  He has taken the stand under oath. There is no record before this Court to assail his character and he has answered in a very straightforward manner, as he has indicated that he was on the bus, was in close proximity to [the complainant], was not aware of her, or her presence as such, and that he, in fact, was asleep. The fact that he was asleep, at least after the fact, alleged by [the complainant] is clear from the bus driver's own evidence when they stopped, but in any event, it is quite clear that his evidence was given, in my view again, in a very straightforward, respectful and credible manner.

¶ 5  There is very little that I could do to articulate a reason for disbelief of what Mr. K has put before the Court. Thus the difficulty. In analyzing W.(D.), that would be sufficient in itself in my view to determine the issue but I need to go further as well. I do not have any difficulty with the credibility; that is, the veracity of [the complainant], and I believe she was being honest and truthful with the Court. There is, however, concern that the Court must have when analyzing the two matters before the Court, not because one needs to consider competing versions, because that is the antithesis of W.(D.), but rather, to determine the two-pronged issue of credibility, which is veracity and reliability. There are a number of things which by themselves are not determinative of the veracity of [the complainant], which I accept, but they are matters which cause the Court to be at least cautious with respect to the reliability. The fact that she felt that the bus was fairly empty, as she described it, roughly 20 people, which is contradicted not only by Mr. K but more importantly by the bus driver himself, as being three-quarters full, "quite full", as he described it.

¶ 6  There is also the issue of the manner in which the touching she described, although again I don't believe that there's anything that's significant to attack her veracity but the reliability of the manner of the touching becomes important in terms of whether or not she was asleep for part of it. I accept [the complainant]'s evidence today that she perceives that she was not asleep but the evidence of her statement would clearly indicate that she was asleep, at least for part of what occurred, and her statements, both to the officer at the time and the bus driver certainly would substantiate that. Frankly, that would explain, in part at least, why she said what she did and how she assessed the timing of the touching and so on. She was reluctant to accept that in cross-examination. And again, although I don't believe that goes to her veracity, it is certainly an issue that has to arise in the Court's mind as to the reliability of the statement she makes as to what touching occurred, what she felt and saw, and at what particular point in time.

¶ 7   In the circumstances further, there is the fact that all witnesses have testified that the business was extremely poorly-lit, very dark, as described by I believe all witnesses who were in a position to observe it.

¶ 8   In that context, again, it is quite possible that someone else may have touched her in the manner that's she's described that was someone other than Mr. K, but that Mr. K, who may or may not have made some movement ahead, caused her to link that contact to him. As I said at the outset, the fact that I cannot articulate a reason to disbelieve Mr. K any more than I could [the complainant], does in fact address the issue of W.(D.), but in any event, on the totality of the evidence, I don't believe the Crown has been able to establish proof beyond a reasonable doubt. The accused is acquitted.