Court Information
Ontario Court of Justice
Between: Her Majesty the Queen — and — David Harper
Before: Justice D. P. Cole
Heard: March 15, April 11, 2012
Reasons for Judgment Released: April 26, 2012
Counsel:
- S. Rothman for the Crown
- A. Craig for the accused
Judgment
COLE J.:
[1] Charge
The accused stands charged that on August 30, 2011 he sexually assaulted and sexually interfered with his 11 year-old neighbour A.A. by touching her breasts and vaginal area (outside her clothing).
THE EVIDENCE
[2] The Accused's Residence and Neighbourhood
The accused had been living in a house on "A." Court for some 17 years. At the time of this incident he lived there with his wife, one of his adult daughters, his daughter's boyfriend and a boarder. Some of the residents in the home were smokers; apparently it was a house rule that when someone wished to smoke they were required to go outside. Often smokers would go into a garage attached to the house, where there were two chairs for the convenience of those who might go there, which happened randomly through the day. This garage faced the street; I inferred from the evidence that at least during the summer months the door was normally open.
[3] The Neighbourhood Context
In recent years the number of children living in this residential neighbourhood has increased substantially. Many of the children ride their bikes and/or skateboards up and down the street, and play childhood games on various lawns. I was also told that the accused has five grandchildren ranging from ages 2-18, most of whom visit his home regularly. Due to the number of children and young families in the area an ice cream truck is in frequent attendance; the driver often parks on the street immediately outside the Harper home.
[4] The Ice Cream Incident
On the evening in question Mr. and Mrs. Harper had gone to the ice cream truck to buy ice creams for themselves when A.A., who lived three houses down the street, coincidentally happened to pass by. One of the Harpers asked A.A. if she would like some ice cream. (This had happened before, on at least two occasions). She initially declined but eventually agreed, and allowed them to buy her one – perhaps two - ice cream(s) wrapped in paper.
[5] A.A. Goes to the Garage
Mrs. Harper went into her house to eat her ice cream, so she did not see either the accused or A.A. for some minutes. The accused went to sit in the open garage to smoke. At first, he was alone. A.A. said that she ate her ice cream and then rode her bike to the garage so she could deposit the paper wrapper in the accused's recycling box, which she knew from previous visits was kept in the garage.
[6] The Children Arrive at the Garage
When A.A. arrived at the garage, she was accompanied by 9 year-old D.R., a boy with whom she had been playing on the street. D.R. had a skateboard and the two children had gone to the home next door to the Harpers to ask someone – I was unclear whether this was an adult or an older child – to show them how to do tricks on the skateboard. That person agreed to show them but said that he first needed to go into his house to change out of his soccer cleats. While he was doing that A.A. and D.R. went to the Harper's garage to dispose of the ice cream wrapper.
[7] A.A. Sits on the Accused's Lap
Quite soon after arrival in the garage, A.A. wound up sitting on the accused's lap, facing away from him. How she got there was a matter of some dispute. A.A. testified that the accused grabbed her wrist or arm with his right hand, pulled her into his lap and pinned her there by wrapping both of his arms around her body. Contrary to what A.A. said, D.R. and the accused both said that she got on the accused's lap voluntarily – in the sense that there was no physical compulsion. However, it should be noted that there was a contradiction between what D.R. said and what the accused said. D.R. said that the accused simply invited A.A. to sit on his lap, while the accused said that A.A. told him that she was upset because she had just broken up with her boyfriend, that he [the accused] would make a better boyfriend and that she then climbed on to his lap. D.R. did not remember hearing A.A. say these words.
[8] D.R. Leaves the Garage
Within a few seconds D.R. left the garage to go to play (perhaps with a neighbourhood dog), while waiting for the neighbour to come outside to show him how to do tricks with his skateboard. A.A., D.R. and the accused all agree that for the next few minutes A.A. continued to sit on the accused's lap facing outwards. What happened next is at the nub of this case.
[9] The Alleged Sexual Touching
In both her videotaped police interview (admitted into evidence pursuant to s.715 of the Code) and in her evidence given in court A.A. testified that while he pinned her to him with his arms around her torso (from the rear), the accused kissed her on the cheek, touched her breasts and vaginal area outside her clothing. She was clear that these touchings could not have been accidental, as they persisted for what she thought might have been "4-5 minutes". Contrary to the accused's version, she said that while she was pinned on his lap, it was the accused who told her that he wanted to be her boyfriend, and called her "pretty" and "hot". She tried to get off the accused's lap, but each time he held her down. This unwanted touching persisted until Mrs. Harper entered the garage to have a smoke, at which point the accused immediately ceased touching her improperly, but continued to hold her on his lap.
[10] A.A.'s Silence
A.A. said in her police interview that she did not complain about what the accused was doing – either to him or to Mrs. Harper - both because "I was like shaking 'cause I was like really nervous", and because "he said you can't tell anybody".
[11] Mrs. Harper's Observations
Mrs. Harper agreed that when she entered the garage A.A. was sitting on her husband's lap facing outwards, with "his left hand on her left hip". A.A. said that as soon as Mrs. Harper saw what was going on she "gave her husband a look [of disapproval]". Mrs. Harper agreed with A.A. that she did show her "shock" and "surprise" upon seeing this, but attributed it to the fact that on an earlier day she had observed A.A. engaged in what she considered overly aggressive horseplay with D.R. and his brother, and that she had cautioned her husband that she "did not like [A.A.]'s attitude…and did not want her around our house". I inferred from this that she was therefore very surprised to see A.A. sitting on her husband's lap.
[12] The Accused's Denial
The accused vehemently denied that he kissed or fondled A.A. As I have previously noted he testified that the only reference to "a boyfriend" came from A.A., not from him, and that this conversation occurred prior to her voluntarily climbing on his lap. He also expressly denied her allegation that he had ever called her "hot" or "pretty". On his version of the events, all physical contact was innocent, and never at any time did he say or do anything that could possible construed as improper or inappropriate.
[13] D.R.'s Corroborating Evidence
Given that the complainant said that the kissing and sexual touching stopped as soon as Mrs. Harper arrived in the garage, and given that Mrs. Harper said that she saw nothing improper, if this were the only evidence, this would be a classic case of "she said, he said". However, D.R. said (in both his videotaped police interview and his in court testimony) that he looked up the driveway towards the garage and, though he could not hear what A.A. and the accused were saying, he saw "[Dave] was touching her here and here…her boobs and her private". D.R. then saw Mrs. Harper come to the garage – "[Dave] stopped as soon as she came".
[14] D.R. Returns to the Garage
D.R. then brought his skateboard to the garage and asked the accused to "tighten it up". Exhibits 3(b) and (c) are photos taken of the inside of the garage sometime after this incident. Those show that there were many tools in the garage. Apparently, the neighbour who had been showing D.R. how to skateboard suggested to him that he might ask the accused to use his tools to "tighten up" D.R.'s skateboard. When D.R. approached with his request and the accused began to examine the skateboard, A.A. got off the accused's lap. After the accused examined the skateboard and said that it did not need to be tightened up, the two children left Mr. and Mrs. Harper in the garage.
[15] A.A. Remains Pinned After Mrs. Harper Arrives
If Mrs. Harper is accurate that she did not see her husband with his arms "wrapped around" A.A., a legitimate question arises as to why A.A. did not get off his lap as soon as Mrs. Harper entered the garage. A.A. agreed that when Mrs. Harper arrived the accused "stopped rubbing there [her breasts and vagina] but his arm was still like this". Examination of the actual DVD of her videotaped police interview shows A.A. demonstrating that the accused continued to pin her to him, but that his arms dropped from being around her chest to being around her waist. In other words, unlike Mrs. Harper's version of where the accused's hands were, A.A. was clear that the accused continued to pin her to him. This continued, likely for 1-2 minutes, until D.R. returned. Indeed, though D.R. did not say what his motivation was for returning to the garage (other than to ask the accused to "tighten up" his skateboard), I find it interesting that A.A. felt that D.R. may have deliberately done this as "a distraction" to help out his friend. Even if D.R. did not come to the garage for that purpose, I interpret A.A.'s evidence on this point to mean that, regardless of where the accused's hands were on her body, D.R.'s fortuitous arrival provided her with an opportunity to free herself.
[16] The Children Disclose the Incident
After some discussion, in the course of which A.A. and D.R. discussed what had happened to her and what he had seen, the children sensibly felt that they should tell an adult what had happened. As A.A. put it in her police interview: "I like first thought okay maybe he doesn't know where he was rubbing me and because he has grandkids my age too…so…first I didn't think like it was that bad 'cause I didn't know". As they were riding down the street on their bicycles/skateboards they came across A.A.'s 13 year-old friend M.B. Because what A.A. told M.B. is not evidence that can usually be admitted for the truth of its contents – because it is hearsay - I shall not detail what was said. Nevertheless, I am allowed to consider as evidence what M.B. noted about A.A.'s demeanour. M.B. said that "[A.A.] had a scared look on her face…she wanted to tell someone…but that she was scared to tell her mum". M.B. advised A.A. to speak to M.B.'s father, who happened to be nearby.
[17] A.A. Speaks to M.B.'s Father
A.A. spoke briefly with M.B.'s father. He was not called as a witness but, by stipulation of counsel, it was agreed that A.A. made no complaint that the accused had touched her vaginal area. She told M.B.'s father only that the accused had touched her breasts. (This evidence is admissible as an exception to the rule against hearsay).
[18] A.A. Speaks to Her Mother
A little while later A.A. was reunited with her mother, who had been out looking for her. She told her mother what had happened to her; as previously discussed, such evidence is generally inadmissible as evidence of the truth of its contents. Though A.A.'s mother was not called as a witness, counsel stipulated (a) that A.A.'s mother could not recall whether her daughter had complained that the accused had kissed her, but that "it was possible she had done so", and (b) that in her description of what the accused had done to her with his hands, she told her mother that the touching of her breasts had occurred prior to the touching of her vaginal area. This last is important because counsel agree that her description of the order in which parts of her body were improperly touched was the converse of what A.A. said on the witness stand.
[19] Police Investigation
In due course the matter was reported to the police, the children were interviewed, and the accused was arrested.
COUNSEL'S SUBMISSIONS ABOUT THE INFERENCES TO BE DRAWN FROM THE EVIDENCE
[20] Internal Inconsistencies
Ms Craig pointed out a number of internal inconsistencies in the evidence of both A.A. and D.R., as well as inconsistencies between their versions of what happened on that evening. While I do not think that much turns on a number of her arguments she advanced – such as whether D.R. went to A.A.'s house to pick her up to go outside to play, or whether they coincidentally met on the street, or who was on the skateboard and who was on a bike – the following points in my view have some validity and need to be addressed.
[21] How A.A. Got on the Accused's Lap
Defence counsel particularly stressed one inconsistency I have already referred to, namely how A.A. wound up on the accused's lap. A.A. said that he grabbed her by the wrist and pulled her down onto his lap. D.R. disagreed with his friend's evidence on this point; he was forthright in saying that A.A. got on the accused's lap voluntarily, and that no physical force was used. I agree with defence counsel that this is an inconsistency of significance, and I assess A.A.'s general credibility and reliability with this in mind.
[22] Preference for D.R.'s Evidence on Voluntariness
On this point defence counsel further reminded me that the accused's version also was that A.A. climbed into his lap voluntarily. Combining this with D.R.'s evidence, she invited me to accept this version and to dismiss A.A.'s evidence on this issue. However, as previously noted, I find that there was something of a contradiction between what D.R. said and what the accused said. D.R. said that the accused simply invited A.A. to sit on his lap, while the accused said that A.A. told him that she was upset because she had just broken up with her boyfriend, that he [the accused] would make a better boyfriend and that she then climbed on to his lap. On this point I prefer the evidence of D.R., who I find to have been a very sharp and observant witness. I reject the accused's evidence about both how A.A. came to be on his lap and about this conversation; I find that this conversation happened as A.A. described it, namely that it took place after A.A. was already sitting in his lap, and after D.R. had left the garage to play.
[23] Suspicious Circumstances
I also find it noteworthy that neither D.R. nor the accused testified that the accused told A.A. to get off as soon as she climbed on his lap. Frankly, why a 63 year-old man would let an 11 year-old girl whose name he did not know climb on his lap for any period of time seems quite suspicious to me.
[24] D.R.'s Observations of Physical Contact
Defence counsel also made much of the fact that D.R. did not testify that saw the accused wrapping his arms around A.A. at any point while she was seated in his lap. I agree with counsel that D.R. did not use these words. However, in both his police interview and in his testimony he was entirely clear that he could see the accused engaged in touching A.A. in a sexually inappropriate manner from behind. It follows from this that if D.R. is accurate in his recollection, the accused must have had his arms at least partially wrapped around A.A. to allow him to touch her breasts and vaginal area. I also find it noteworthy that D.R. said to the interviewing police officer that "[Dave] stopped as soon as [Mrs. Harper] came". This is consistent with Mrs. Harper's observation that when she entered the garage, she could see that her husband had "his left hand on [A.A.'s] left hip".
[25] Inconsistencies in A.A.'s Disclosures
I also agree with counsel that there were some inconsistencies in the versions told by A.A. to M.B.'s father and to her own mother. Having considered these, I am respectfully of the view that they do not significantly affect A.A.'s credibility. If society has learned anything about the way allegations of sexual abuse are disclosed by child complainants it is that, despite general education programs on this subject, complaints are often not fully disclosed until the child feels comfortable doing so. I do not find it at all surprising that A.A. would not disclose all the details of what she says happened to her to an adult male she barely knew – the B. family had only very recently moved onto the street. In a similar vein society has come to realize that child complainants frequently do not make full disclosure until they are gently and thoroughly questioned by a properly trained professional. I can imagine that it must have been quite difficult for a pre-pubescent girl to discuss such traumatic matters in detail with her mother, very soon after the incident. It is perhaps noteworthy that the fullest version of what had happened when Det. Allen interviewed A.A. in the absence of her mother.
[26] Crown Counsel's Submissions
For his part, Crown counsel properly accepted that there were some discrepancies between the evidence of A.A. and D.R., as well as within A.A.'s evidence, but he argued that they were minor and should not ultimately reflect negatively on my overall assessment of what happened here.
[27] Defence Witnesses
Having detailed counsel's submissions about the Crown witnesses in this case, I now turn chronologically to the evidence of the two defence witnesses. Crown counsel obviously invites me to disbelieve their evidence as contrived, while defence counsel suggests that the evidence of both Mr. and Mrs. Harper should leave me in a state of reasonable doubt as to what happened.
[28] Vague Hints in Police Statements
Before I turn to the evidence of the Harpers, I find it necessary to comment briefly about some vague hints in the children's videotaped police statements, which contained some suggestions that Mr. Harper may have improperly touched other children and/or that he was often drunk, inappropriate and "creepy" in his language and behaviours. Similarly, there was a suggestion that M.B. was frightened of the accused because of rumours about the kind of person he might be. Of course, I reject these insinuations in my consideration of his credibility, because, had this evidence been given in a court setting (rather than in police interviews) counsel would no doubt have been careful to ensure that the record did not contain such references.
[29] The Accused's Evidence
As previously stated Mr. Harper was adamant that there was no inappropriate physical touching, that A.A. sat on his lap only for a minute (at her request), that he did not put his arms around her in a bear hug, and that the only part of her he might have touched with his hands was her hip – and that would only have been for a very brief period.
[30] Assessment of the Accused's Credibility – Alcohol Consumption
On the whole I did not have a favourable view of Mr. Harper's evidence. I start with the question of how much alcohol he had had to drink that day, and how that affected his ability to recall the events. Though the accused admitted to consuming "a couple of rum and cokes earlier in the day, around noon to one o'clock", it seems fairly obvious to me that he had had considerably more. A.A. was very clear that on August 30 she saw that the accused was drinking "[some] combination from a coke can and some beers" when he was in the garage. (Mrs. Harper thought that he had had one beer, but she was not certain because she had been at work). Mr. Harper said in his evidence that "August 30 was not an exceptional day". Apart from the innocent contact with A.A. all he could recall of the day was that because he had not been at work that day, he had time to paint a room in his basement in anticipation of his granddaughter moving in. I find it noteworthy that on the date of his arrest a few days later, he too had not been working on that day. Upon being confronted with the suggestion in cross-examination that he was drunk when he was arrested, he agreed that he might have consumed "3-4, but I'm not sure". I think I am safe to make a fair inference that on days when he is not working Mr. Harper drinks considerably more than he said he did on August 30. While of course that fact alone would not cause me to dismiss his evidence, I can and do consider that his consumption of alcohol affected both his ability to recall what happened on August 30 and his behaviour on that day, and I evaluate his evidence in that context.
[31] Contradictions in the Accused's Evidence
Even if the accused's alcohol consumption on August 30 was what he says it was, I find that many of his recollections were contradicted by other evidence. To these I now turn.
[32] Selective Memory and Corroboration
As I listened to the evidence and as I have reviewed my notes, it is quite obvious that Mr. Harper's recollection of what happened is much better at the points when his wife was with him. It is entirely likely that Mr. and Mrs. Harper discussed their recollections of what happened, so I am not particularly surprised by his more precise recollection on those points. But where he was not in a position to check his recollection against that of his wife's, he was more forgetful or vague. There were several examples of this. First, he testified that he did not recall D.R. being present when A.A. first arrived at the garage to deposit her paper wrapper in the recycling box, which both children said was the case. However, the accused's recollection of D.R. appearing to request that he "tighten" D.R.'s skateboard exactly paralleled his wife's recollection and evidence. Similarly, though Mrs. Harper was very precise in her recollection of what A.A. was wearing, the accused "could not recall what she was wearing". I find this quite surprising in light of the fact that A.A. sat on his lap for several minutes. Third, as I have already noted, he could not recall whether it was he or his wife who offered to buy A.A. ice cream. Finally, as I have previously discussed, the accused said that it was A.A. who raised the subject of her having (or no longer having) a boyfriend, but D.R. did not recall this conversation. When I combine these vague recollections with what I consider to have been his level of alcohol consumption, I find that much of the accused's recollection of detail about what happened on August 30 prior to his wife's arrival in the garage is unreliable.
[33] Unreliability Does Not Equal Fabrication
Of course this finding that substantial portions of the accused's evidence are unreliable does not at all mean that his evidence may automatically be said to have been fabricated. Nevertheless, because of the contradictions between the evidence of the accused and that of the two children, combined with the fact that the accused likely had had considerably more alcohol to drink on August 30 than he was prepared to admit, I have little difficulty rejecting his evidence except to the extent that it is corroborated either by the children or by his wife.
[34] Caution Regarding Scrutiny of Accused's Evidence
I should stress that in coming to this conclusion I have very carefully considered the admonition voiced in numerous appellate cases to the effect that a trier of fact should not give the impression of shifting the onus to the accused by exposing the accused's evidence to a higher degree of scrutiny than that of the complainant. Most recently, I apparently made that error in R. v. Ciraco [2010] O. J. No. 5714, where I was reversed on appeal (2012 ONSC 634), so I approach this issue with considerable caution.
[35] Mrs. Harper's Evidence – Relevance of A.A.'s Prior Behaviour
Mrs. Harper's evidence about what happened from the point she arrived in the garage largely paralleled that of the other three witnesses who were there i.e. that nothing of a sexual or otherwise improper nature occurred when she was there. To that extent, I mostly accept her evidence, though I think she 'gilded the lily" quite a bit when she said that her husband's hand was barely touching A.A.'s hip. Apart from that Mrs. Harper had evidence to give on two points. I have already alluded to the first of these, namely that the reason she was surprised to see A.A. sitting on her husband's "knee" or "lap" was because she had tried to caution her husband about what she considered to be A.A.'s inappropriate aggression towards others. If that evidence was called for any more than as an explanation for her obvious surprise, in my view it is irrelevant. Even if A.A.'s aggressive behaviour on a prior occasion could be said to go to her character (which I very much doubt), it has nothing to do with her honesty.
[36] Mrs. Harper's Evidence – What A.A. Was Wearing
The only other point where I think Mrs. Harper's evidence could be said to be relevant is in her disagreement with A.A. about what A.A. was wearing that day. Mrs. Harper said she was "certain" that A.A. was wearing blue jeans and a pink top. She particularly remembered a shiny belt. In her videotaped police interview A.A. said that she was wearing "black basketball shorts with grey lines like plaid…I was wearing a black t-shirt…and I had a hat on [backwards] and my hair was down". In cross-examination she said that she did not even own a "shiny" or "fancy" belt. Presumably Mrs. Harper's evidence on this point was called in support of defence counsel's more general submission that A.A.'s evidence was not credible, in the sense that if she was not accurate about what she was wearing, she was not accurate in other – more central – points of her evidence. While I do not think this was a particularly important point, on balance I was more impressed with A.A.'s evidence on this issue. Her recollection of wearing her baseball cap backwards and not owning a "shiny" or "fancy" belt had a ring of truth to it, when I combine it with my generally favourable impression of her ability to recall. I do not disbelieve Mrs. Harper's evidence; I just think she may have confused what A.A. was wearing on August 30 with what she was wearing on another occasion when she saw her.
[37] Defence Counsel's "Common Sense" Argument
Combining Mr. and Mrs. Harper's evidence with the photographs of the garage, defence counsel suggested that it "would defy common sense" that the accused would molest a child in a place where he might easily have been observed – by his wife (or other residents of his home), or by children out at play on the street, or by their parents. To advance this argument, it became essential for defence counsel to invite me to reject the clear evidence of D.R. to the effect that he observed the accused grope A.A. Counsel attempted to do this in a very clever way. She did not invite me to reject D.R.'s evidence as incredible – she could not have done so, because, as I have previously described, it was necessary that she support his evidence on several points favourable to her case. Rather, counsel invited me to reject D.R.'s evidence on this point as unreliable.
[38] Defence Counsel's Argument Regarding D.R.'s Reliability
Counsel's argument was that because D.R. apparently did not initiate conversation with A.A. about what he had seen, therefore that his "observations" must have been suggested by A.A. Counsel relies on several portions of D.R.'s police interview to suggest that it was A.A. who first raised with D.R. what she said had happened to her while he was absent from the garage. Counsel particularly relies on D.R.'s recollection that A.A. said to him that he could not leave to go home because he was "the witness". I think Ms Craig is right to raise this point. Indeed, it could be argued that D.R.'s failure to cry out or otherwise seek to intervene if he actually saw the accused groping A.A. suggests that he may not have seen anything improper going on, and that it was only when A.A. "planted" the idea in his mind, he adopted her version. However, in the course of preparing these reasons I have carefully reviewed both the transcripts of the children's police statements and the DVDs containing the videotaped record of their interviews, and have balanced these against my recollections of the content and manner of presentation of their in court testimony. With respect, it seems to me entirely clear that neither of these children – particularly 9 year-old D.R. – is conniving enough to have made up such an allegation. As D.R. so neatly put it during cross-examination: "When [A.A.] told me, she might not have realized at first that I had seen it".
[39] D.R.'s Age and Observational Capacity
Counsel's next argument about D.R.'s unreliability derives from his chronological age and his age-consistent concentration on playing with his skateboard. Counsel says that when D.R. left the garage he was either oblivious to what was going on in the garage, or that from his vantage point he simply could not have seen what was taking place there, or that he misinterpreted what he thought he saw. While I agree that D.R.'s ability to express himself is entirely consistent with his youth, I must say that, in addition to being an obviously charming and engaging child, I found him to be quite a sharp observer of what was going on around him. In my judgment two statements by the Supreme Court of Canada should guide me here. In R. v. B. (G.) (1990), 56 C.C.C. (3d) 200 Wilson J. advocated a "common sense approach" when dealing with the testimony of young children, and advised judges not to apply the same exacting standards on them as on adults. Building on this in R. v. W. (R.) (1992), 74 C.C.C. (3d) 134, McLachlin J. added that we should not approach the evidence of children from the perspective of rigid stereotypes and that judges should adopt a "common sense" approach which takes into account the strengths and weaknesses characterizing the evidence offered in a case. Thus, while D.R.'s ability to express himself is obviously inferior to that of an adult, in my judgment that weakness in fact strengthens his reliability (and credibility) in this case. His evidence was clear, it was not contrived, it was not planted and it had the ring of truth to it. I am entirely satisfied that he was in a position to see what he saw, did not misapprehend what he saw, and described it concisely and accurately.
[40] A.A.'s Credibility
I may say that, with the sole exception of her evidence about how she got into the accused's lap, I feel confident about making the same observations about A.A.'s testimony and her police interview. She was age-consistently clear, she was candid, she did not make things up, and her evidence similarly had the ring of truth to it.
[41] D.R.'s Evidence as Corroboration
D.R.'s evidence is what takes this case out of being a classic "she said, he said". The two cases cited by defence counsel – R. v. S. (W) (1994), 90 C.C.C. (3d) 242 (Ont. C.A.) and the more recent decision of the Newfoundland Court of Appeal in R. v. H. (W.) (2011) 2011 NLCA 59, 89 C.R. (6th) 181 - are both cases where there was no independent evidence to confirm the allegations of the child sexual assault complainants. (In fact, in both cases, there was independent evidence that tended to refute their evidence). That is not what exists in the case at bar. Whatever few doubts I may entertain about some aspects of A.A.'s evidence – and the sole contradiction of any substance really comes down to the differing versions of how she wound up on the accused's lap – D.R.'s evidence is pivotal. With respect, defence counsel cannot have it both ways. She cannot on the one hand argue that I should accept D.R.'s evidence in preference to that of A.A., and yet ask me to dismiss D.R.'s evidence as unreliable.
[42] Application of the R. v. D. (W.) Test – First Branch
It flows from all of this that in applying the well-known R. v. D. (W.) test, I reject the evidence of the accused, except to the extent that it is corroborated by others. For greater clarity, I expressly reject all of his evidence on the central issue of whether he groped A.A. I find that he did so as described by A.A. and D.R.
[43] Application of the R. v. D. (W.) Test – Second Branch
Similarly, applying the second branch of the D. (W.) test, I do not consider that the evidence by or on behalf of the accused in any event raises a reasonable doubt.
[44] Crown's Burden – Assessment of Credibility
I next go on to consider whether the evidence called on behalf of the prosecution satisfies me beyond a reasonable doubt, given that the onus remains on the Crown throughout. In evaluating this, I keep in mind what the Supreme Court of Canada said in the two cases I have already referred to, as reiterated by Finlayson J.A. in the previously cited Ontario Court of Appeal decision in S. (W.), to the effect that the evidence of children should not be subjected to a lower level of scrutiny for reliability and credibility. I accept the evidence of A.A. on all but the issue of how she got into the accused's lap. Even given his age-consistent difficulties in explaining himself in ways which an adult would not do, I accept in its entirety the evidence of D.R., and find that any inconsistencies are not material. To this I add, as I am entitled to do, that the observations of A.A.'s demeanour noted by M.B. perhaps a half hour after the fact, as evidence that she had just been through a traumatic incident.
DISPOSITION
[45] Finding of Guilt
Given these factors, I am satisfied that the Crown has discharged its onus, and I find the accused guilty as charged. I substantially agree with Crown counsel's suggestion that the disinhibiting effect of alcohol, combined with opportunity, likely were the motivating factors.
[46] Sentencing Hearing
I would now like to set a date for a sentencing hearing, at which I would like to hear counsel's views as to whether the sexual interference charge should be stayed per Kienapple.
[47] Conclusion
I wish to thank counsel for their efficiency and professionalism in presenting their evidence and argument.
Released: April 26, 2012
Signed: Justice D.P. Cole