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Case Name:

R. v. Dyal
Between
Her Majesty the Queen, and
Eon Dyal
[2014] O.J. No. 6367
Court File No.: 13 8778 00
Ontario Court of Justice
Hamilton, Ontario
M. Speyer J.
Heard: November 28, 2014.
Oral judgment: November 28, 2014.
(27 paras.)
Criminal law -- Evidence -- Methods of proof -- Identification -- Accused acquitted of sexual assault and
sexual interference -- Complainants were teenagers who were fundraising in front of a store -- They testified
that accused touched them inappropriately on their buttocks as he put money in their donation boxes -evidence failed to establish that it was the accused who interacted with the complainants on the night in
question -- Complainants' in dock identification given little weight -- Court was not satisfied that accused
touched complainants because of the frailties in the complainants' evidence and the lack of any other
confirmatory evidence.
Trial of the accused charged with sexual assault and sexual interference. The complainants were teenagers
who were fundraising in front of a store. The complainants testified that the accused touched them
inappropriately on their buttocks as he put money in their donation boxes. The complainants identified the
accused in court as the person who touched them. During their joint interview with police, the complainants
provided a general description of their assailant that was consistent with the features of the accused. This
joint interview was not followed up by a photo lineup and the next time the girls were interviewed separately
was approximately one month later. There were significant inconsistencies in the complainants' trial evidence
and their statements given to police as to when they disclosed the alleged touching.
HELD: The accused was acquitted. The evidence failed to establish that it was the accused who interacted
with the complainants on the night in question. Due to the inherent frailties of in-dock identification and given
the brief period of time that the complainants observed their assailant, the court did not place any weight on
their in-dock identification. Even if the accused had been near the store on the date alleged and interacted
with the complainant, the court was not satisfied that he touched them because of the frailties in the
complainants' evidence and the lack of any other confirmatory evidence.
Counsel:

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B. Adsett, Counsel for the Crown.


A. Harnett, Counsel for Mr. Dyal.

REASONS FOR JUDGMENT


1 M. SPEYER J. (orally):-- Mr. Dyal is charged with sexual assault and sexual interference of K. - sorry K.F. and sexual assault and sexual interference of J.P. (ph). The offences are alleged to have occurred on
October the 3rd, 2013 outside of Fortino's Supermarket in Ancaster as the two teenaged complainants were
fund raising for Air Cadets. The fund raising involved selling tags and is referred to as 'tagging'.
2 The two complainants testified that Mr. Dyal, a stranger to them, touched them inappropriately on their
buttocks as he put money in their donation boxes. Mr. Dyal did not testify and there is no obligation on him to
do so. He is presumed to be innocent until the Crown has proven each essential element of the offences
beyond a reasonable doubt.
3 Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or
to the lack of evidence. It is not enough for me to believe that Mr. Dyal is possibly or even probably guilty.
Reasonable doubt requires more. As a standard reasonable doubt lies far closer to absolute certainty than it
does to a balance of probabilities. At the same time reasonable doubt does not require proof beyond all
doubt and nor is it proof to an absolute certainty.
4 On the evidence before me I am not convinced of Mr. Dyal's guilt beyond a reasonable doubt. I come to
this conclusion because of weaknesses in the Crown's evidence.
5 Dealing first with the issue of identity I find that Crown's evidence fails to establish beyond a reasonable
doubt that it was Mr. Dyal who interacted with the complainants on the night in question. The evidence of
Karen Malea (ph) and Sue Protius (ph) establishes that Mr. Dyal was a boyfriend of Susan Baker, an
employee of Fortino's, who worked in the flower department.
6 Ms. Malea and Ms. Protius testified that Mr. Dyal was always at Fortino's when Ms. Baker worked. He
would drop her off and join her for breaks and pick her up at the end of her shift. Business records establish
that Ms. Baker was working on October the 3rd, 2013 and that she finished her shift at 7:05 p.m., however
neither Ms. Malea nor Ms. Protius recalled seeing Mr. Dyal at Fortino's at the end of Ms. Baker's shift on
October the 3rd, 2013.
7 The complainants identified the accused in court as the person who touched them. This was an in-court
identification. They both testified that their interaction with the assailant was very brief. Ms. K.F. testified that
she saw the accused come in and out of the store a few times.
8 Ms. J.P. testified she saw the accused when he touched her and when he left with a Fortino's employee.
She testified that this was the same employee who had - who served - sorry - who had served them coffee.
Ms. Protius testified that she worked in the Coffee Shop that evening and she did not leave with the accused.
Clearly Ms. J.P. is mistaken about which employee her assailant left with. This demonstrable error highlights
the frailties of eye-witness identification.
9 The police investigation into these offences was regrettably inadequate. The evidence establishes that
the complainants were interviewed within a few hours of the alleged assaults. Unfortunately they were not
separated and were interviewed by the police while they were both in the same room.
10 During this interview they provided a general description of their assailant that is consistent with the
features of the accused. This joint interview was not followed up by a photo lineup and the next time the girls
were interviewed separately was approximately one month later. I am mindful of the inherent frailties of

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in-dock identification and given the brief period of time that the complainants observed their assailant I do not
place any weight on their in-dock identification.
11 Even if I were satisfied beyond a reasonable doubt that the accused was at Fortino's on October the
3rd, 2013 and that he approached the complainants to put money rii their donation boxes, I am not satisfied
to the requisite degree of certainty that he touched them as they described. I am left in doubt as to whether
he committed the acts complained of because of the frailties in the complainant's evidence and the lack of
any other confirmatory evidence.
12 One of the most valuable means of assessing witness credibility is to examine any inconsistencies in
the witness's testimony either between what is said at trial and what is said on other occasions or any
internal inconsistencies within the witness's trial evidence itself. Inconsistencies may vary in their nature and
importance; some are minor, others are not. Some concern material issues, other peripheral subjects.
13 When an inconsistency involves something material about which an honest witness is unlikely to be
mistaken the inconsistency may demonstrate a carelessness of truth about which the trier of fact should be
concerned, and I refer here to the case of R. v G. (M.) (1994), 93 C.C.C. (3d), 347 (Ont. C.A.), leave refused
to the Supreme Court of Canada.
14 Ms. J.P. was 15 years old at the time of these offences and was 16 when she testified. There are
significant inconsistencies in her trial evidence that leave me in doubt about whether she was touched. Ms.
J.P. testified that she was touched on her right buttock by the accused as he put money in her donation box.
15 She testified she was at the main Fortino's entrance with K.F. when this happened. She described the
touch as very brief, no more than a few seconds, and that it occurred as Mr. Dyal moved to her right side to
allow some shoppers to come through the main doors. She testified that Ms. K.F. was across from her when
this occurred. She testified that there were a great number of adults around her to whom she could have
reported this unwanted touching. She agreed that if she had been touched she would have reported it
immediately.
16 Ms. J.P. testified that this incident occurred after she and her friend had returned from a coffee break.
She insisted that when Mr. Dyal touched her she was unaware that her best friend, K.F., had also been
touched. She agreed with the suggestion that if Ms. K.F. had told her that she had been touched she would
have remembered this, yet Ms. K.F. testified that she did tell Ms. J.P. and the other two Air Cadets, Ian
Barham and Jack Lackage (that's B-A-R-H-A-M and Lackage is L-A-C-K-A-G-E) during a coffee break about
being touched by the accused.
17 Ms. J.P. testified that right after the alleged assault she told Ms. K.F. about what had happened and
that she and Ms. K.F. went to the other entrance door to tell the boys. When they got to the other entrance
their civilian instructor, Mr. Gosling, was already there and she told him what happened.
18 She testified that Mr. Gosling told her to continue canvassing while he went to the main entrance to see
if he could find the perpetrator. When questioned further about this Ms. J.P. admitted that she had made this
up and that she did not tell her instructor until much later when he picked them up at the end of the night and
he asked them how their evening had gone. She admitted that he never told her - that Mr. Gosling rather
never told her to continue fund raising. Mr. Barham and Mr. Lackage did not testify.
19 At trial Ms. J.P. testified that after the alleged assault she was in shock and froze for about 20 to 30
minutes yet in her statement to the police a month later she told the police she was in shock for only a few
minutes. In cross-examination Ms. J.P. adopted her previous statement to police when she told them that
she didn't immediately tell her civilian instructor about what happened because she did not think much of the
incident. At trial she agreed with counsel's suggestion that she really wasn't sure what happened.
20 I am also troubled by the evidence of K.F.. Ms. K.F. was 12 when this incident occurred and 13 at the
time of trial. There are aspects to her testimony that also cause me concern. For example, Ms. K.F. testified
that the accused touched her on the right side of her buttock as he put money in her donation box. At the
time that he did this she was standing next to Air Cadet Ian Barham at the main Fortino's entrance between

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the two doors. She agreed that there were quite a few adults present when this occurred. She testified that
the touch was very brief, only a few seconds, and that she was not looking at the man when it happened.
She testified that she did not immediately tell Ian Barham or anyone else of what had happened.
21 Ms. K.F. testified that she continued tagging until she went on a coffee break with Mr. Barham, Mr.
Lackage and Ms. J.P..
22 She testified the break lasted about half an hour and during which time she told Ian, Jack and J.P.
about what had happened and the boys told her that if it happened again that she should tell them.
In her police statement she told the police that she did not discuss the assault with her friends during the
coffee break. Later in cross-examination she testified that she told Ms. J.P. when they were - when they had
returned to tagging at the main Fortino's entrance. When challenged about this apparent contradiction she
said that the boys were there too but that they were walking away towards their station.
23 During her police statement Ms. K.F. told the police that she "remembered out of the blue" about what
had happened to her and that's what she told J.P., which was after the break and when they were both
tagging. In her evidence at trial she insisted that she had remembered this all along and that she had warned
Ms. J.P. about the accused. Of course, Ms. J.P. testified that she was not aware of anything happening to K.
until well after she'd been touched.
24 While I appreciate that children's evidence should be assessed from a common sense perspective, this
does not mean that a lower standard of proof is - is sufficient when dealing with child complainants. In this
case the two complainants were not very young children, they were teenagers and I cannot ignore the
inconsistencies in their evidence. They do have an impact on my assessment of their reliability and their
credibility.
25 Lastly I will deal with the issue of whether I should use the similarity between the complainant's
testimony about the nature of the assault to both to their credibility and reliability. Ordinarily if two people
share and describe a similar experience the similarity of their experience can serve to lend more weight to
their testimony. However, the probative value of that evidence is considerably diminished when the
witnesses have had an opportunity to collude or to discuss their shared experience.
26 In this case Ms. K.F. and Ms. J.P. talked to each other about what happened. They talked about it to
their - to themselves, with their two male co-Cadets and to Mr. Gosling. They were also both present when
the police interviewed them that night. They were not interviewed individually until about a month later. In
those circumstances I do not place any weight on the similarity of the complainant's evidence regarding the
actus reaus of the offences.
27 In considering all of the evidence before me I am not satisfied that it meets the high standard required
for the Crown to prove guilt beyond a reasonable doubt. While I may have some suspicion about what
happened I must give Mr. Dyal the benefit of the doubt and there will be a finding of not guilty on all counts.