Crown: A. Camara, Assistant Crown Attorney, Burlington
Defence: Craig Penney, Burlington, Sexual Assault Lawyer
¶ 1 MR PENNEY: Now, yesterday I gave you an opportunity to resile from your testimony that you stopped going to Taekwon-Do after the abuse and to change that if you wanted and you said you didn't want to. And I gather from that, that, that you agree then that the abuse occurred after the 8th of February, 2003, when you did your green belt testing, agree?
¶ 2 VICTIM: I'm not sure.
¶ 3 MR PENNEY: Okay. So you/re not sure — all right. So now I have to ask you a question because yesterday you testified that your — remember we went through the two lists of things you're not sure about and things you're absolutely sure about?
¶ 4 VICTIM: Yes.
¶ 5 MR PENNEY: And you said one of the things you were absolutely sure about, for all the reasons we went through yesterday, was that you stopped going to Taekwon-Do for the three reasons you gave His Honour yesterday. Do you recall that yesterday?
¶ 6 VICTIM: Yes.
¶ 7 MR PENNEY: All right. And you said you were absolutely sure about that. And then I asked you, if you're not absolutely sure at the end of yesterday and the cross, I gave you an opportunity to retract from that and then say perhaps, well, you were mistaken in that, and you said no, you didn't want to change any of that. So you're now changing your view of that, that in fact the abuse might have occurred in 2002 and you could have continued for another eight to nine months with the Taekwon-Do studio and that you were mistaken about all of that? Or is it more likely that the abuse occurred after — well, I'll let you answer that question first. Were you mistaken about that?
¶ 8 VICTIM: It's possible.
¶ 9 MR PENNEY: So when you said it's possible, there's a long pause there. What, what are you saying is possible? Can you just re-state it in your own words? What are you saying you're possible, you were mistaken about?
¶ 10 VICTIM: The event took place over 10 years ago.
¶ 11 MR PENNEY: Mmhmm.
¶ 12 VICTIM: I know it happened. I know who did it. I may be mistaken on the days, but I know.
¶ 13 MR PENNEY: Okay. Well, yesterday we talked about the two things you're most sure about. One was that it happened, right? You said you were absolutely sure that it happened, wasn't a figment of your imagination, or something that was a memory that was created, agreed?
¶ 14 VICTIM: Agreed.
¶ 15 MR PENNEY: And the second thing you said you were absolutely sure about is that this room, the fun of Taekwon-Do, that had created a risk for you in that environment, and it had also created a lot of emotional discomfort, and for all three of those reasons you stopped going to Taekwon-Do within weeks of the incident. You said you were absolutely sure of that. And I'm going to suggest to you S***, that makes a lot of sense, that after this abuse, which is still affecting you emotionally today, that the 12-year old boy that was S***, he was no longer interested in Taekwon-Do and that you were very much telling His Honour the truth about that. And I remind you, when you gave your examination with my friend you said you were doing, you know, you had done your green belt as well, and that's what we see here on February the 8th, 2003. So are you not still absolutely sure that this whole event ruined Taekwon-Do for you and that you stopped it after the abuse and that you didn't continue going there for another whole year? I'm suggesting, S***, you have no reason to resile from that testimony yesterday except to make D.L. look guilty here today. The truth of it is that that did have a big emotional impact. And the truth is, you did stop going to Taekwon-Do for the three reasons stated yesterday. Isn't that your recollection, sir, and that you're still absolutely certain about at least that, that after was I, I was abused, I stopped going? Are you not still absolutely certain about that, sir?
¶ 16 VICTIM: Yes.
¶ 17 MR PENNEY: Right. And so if you're absolutely certain about that, sir, then I'm going to suggest you must also be absolutely certain that the abuse occurred after the 8th of February, 2003, agreed? And I'm going to ask you, sir, to give the answer that best accords with your recollection, not, not, not that makes D.L. look guilty or fits, right, your theory and his guilt. You just told His Honour you're absolutely certain this ruined Taekwon-Do. You've also told His Honour that the 8th of February, 2003, accords with your own memory that you saw that testing result on the wall afterwards and that you were there and tested the 8th of February, 2003. And I'm going to suggest, sir, that having accepted those two facts, you must now be absolutely certain that the abuse occurred after the 8th of February, 2003, agreed?
¶ 18 VICTIM: No.
¶ 19 MR PENNEY: So which one of those two propositions are you not absolutely certain about then because you said you were absolutely certain that you stopped going to Taekwon-Do? Are you retracting from that, sir?
¶ 20 VICTIM: No.
¶ 21 MR PENNEY: And you're not retracting from your evidence that the 8th of February, 2003, that's an accurate date when you, in fact, were tested for and passed for your green belt, agreed?
¶ 22 VICTIM: Agreed.
¶ 23 MR PENNEY: Well, sir, how is it even possible that the abuse occurred prior to that day? On your evidence, I'm suggesting to you it's impossible unless you're, one of those two things is a mistake. Are you only giving that answer, sir, because of what we expect to hear from Mr. M about D.L. not being at the studio?
¶ 24 VICTIM: No.
¶ 25 MR PENNEY: Well, isn't it impossible that the abuse, as you described it, occurred prior the 8th of February, 2003, given your absolute certainty about those two, those two facts? Wouldn't you agree with me?
¶ 26 VICTIM: Theoretically, yes.
¶ 27 MR PENNEY: I'm not talking theoretically, sir. You said — this is your evidence. You said on the 8th of February, 2003, I was tested for my green belt and I passed my green belt. You also said you're absolutely certain that this abuse ruined Taekwon-Do for you and that you stopped going within a couple of weeks. In fact, you said that's the thing that you're, except for the abuse itself, you're most certain about that because it's still something that's affecting you emotionally today. We went over all that yesterday.
¶ 28 VICTIM: Yes.
¶ 29 MR PENNEY: Right. So forget the theory of it, I'm talking to the — sir, how could it have happened, theoretically, or practically, or otherwise? If you stopped going to Taekwon-Do, if you continued — if you stopped going to Taekwon — you did your green belt and then you stopped going. The abuse occurred after you did your green belt testing, agreed? Let's forget the dates for a second, S***. The abuse occurred after you did your green belt testing at the Taekwon-Do studio, agreed? Do you want me to repeat the question, S***?
¶ 30 VICTIM: No.
¶ 31 MR PENNEY: Are you able to answer the question?
¶ 32 VICTIM: No.
¶ 33 MR PENNEY: Why not? Based on your evidence yesterday, I'm going to suggest to you it's abundantly clear, based on what you told His Honour, that the abuse occurred after your green belt testing. Let's forget about the dates. You told His Honour you were in no state of mind to do the testing and you only went for one or two weeks afterwards. So would you agree that the abuse occurred after you did the green belt testing?
¶ 34 THE COURT: Try to answer the question, S*** ...
¶ 35 MR PENNEY: S***, I ...
¶ 36 VICTIM: No.
¶ 37 MR PENNEY: Pardon?
¶ 38 VICTIM: No, it's not possible.
¶ 39 MR PENNEY: What's not possible? You're saying it's not possible that it occurred after the green belt testing? And I'm just, I just want to make sure that I understand what you're saying, and you said no, it's not possible. It's not possible it occurred before, or occurred after? My suggestion was that would you agree that the abuse occurred after your green belt testing?
¶ 40 VICTIM: Please, repeat the question.
¶ 41 MR PENNEY: The question was, would you agree that the abuse occurred after your green belt testing? And I suggest to you that it did because what you explained to His Honour yesterday about you not continuing in Taekwon-Do after the testing and also because you were in no state of mind to participate in any testing after the abuse. I'm suggesting to you that the abuse did occur after the green belt testing.
¶ 42 VICTIM: It's possible.
¶ 43 MR PENNEY: Okay. Well, sir, I'm going to suggest it's more than possible because we went through that yesterday. You've already told His Honour that it was likely, more likely in the spring of 2003 than the spring of 2002 after first saying you were extremely confident it was in the spring of 2002. I'm suggesting it's more than possible, that it did occur after the green belt testing, that it's stronger than possible. And you know it's stronger than possible because you were telling the Judge, His Honour, the truth yesterday when you said there's no way I could continue in Taekwon-Do for all the reasons I gave you. Isn't that the truth, sir?
¶ 44 VICTIM: Yes.
¶ 45 MR PENNEY: Okay. And yesterday I showed — I just want to show you here. I do recall evidence that D.L., as you know, wasn't at the studio in the spring of 2003. And I'm going to — so part of that evidence I've already put to you that Mr. M, how Mr. M will testify to that, and to say he will. But in addition to that, you'll see there that that document is a bail that's entered in, that was his conditions of release on the charge relating to another complainant. That bail is dated the 18th of October, 2002, as you can see there. And you'll see there are two conditions. So I anticipate calling evidence that there is — well, there's evidence before His Honour that he was under a Court Order, one, not to attend the City of Oakville. And you see there towards the bottom. I don't have a copy. May I just come in, S***, and read shoulder to shoulder with you? I don't need to take it. I'm just going to show you. Conditions nine and 10, if you could just read them to yourself. You don't need to read them aloud. Just tell me when you've finished.
¶ 46 VICTIM: Finished.
¶ 47 MR PENNEY: Okay. So you see there that he was, D.L., was under Court Order not to — I'll have that back now — not to be in the City of Oakville, but also not to attend at any Taekwon-Do studio. So S***, I'm just going to put to you, again, now that you have that additional information about D.L. and not being in the jurisdiction. You just told His Honour that you did agree with me the abuse occurred after you did your green belt testing. So having regard, S***, to the following I'm going to put to you, that you've misidentified D.L., it's possible that you did. And I'd like you to consider the following before you answer that. So having regard to one, you just agreed that the abuse occurred after your green belt testing. Two, you've also agreed that the 8th of February, 2003, was the date that you did your green belt testing. Having regard to Mr. M's anticipated evidence, that D.L., was no longer part of the studio after, you know, around October, 2002, and having regard to the Court Order that you just reviewed that didn't allow D.L. even to come into the Town of Oakville, would you agree with me now sir, that it's at least possible — and then having regard, as well, to what you said to His Honour yesterday about the possibility that you might have been influenced about the notice that had been posted about D.L., and the rumours that were going around, having regard to all five of those things, sir, wouldn't you agree that it's at least possible because of, you know, this happened a long time ago and the trauma of the event itself, that it's at least possible that D.L. is, in fact, innocent and you have innocently misidentified him as the perpetrator at the time. Isn't it at least possible, sir?
¶ 48 VICTIM: Yes.
¶ 49 MR PENNEY: Thank you, sir, those are my questions.
¶ 50 CROWN: Your Honour, I obviously do have some questions for re-examination, but could we have a break before I commence that? Thank you.
¶ 51 THE COURT: All right.
[The Court recessed at this time.]
¶ 52 CROWN: Good morning, again, Your Honour.
¶ 53 THE COURT: Yes.
¶ 54 CROWN: Thank you very much for that indulgence. I have had that opportunity now to speak to S***. In light of the evidence that we have heard yesterday and today, Your Honour, I'm of the view that the Crown does not have a reasonable prospect of conviction, and at this point I'm going to invite Your Honour to dismiss the charges.
¶ 55 THE COURT: All right. Thank you. Yes, I concur with your opinion, Ms. Camara. I thank you for the attention that you have given to this file. I know it's been a difficult case for everyone involved, and accordingly I will dismiss the charges.
