WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
J.T.
Before: Justice B.M. Green
Heard on: September 21st and October 16th, 2017
Reasons for Judgment released on: December 13th, 2017
Counsel:
- Ms. K.A. Kennedy, counsel for the Crown
- Mr. L. Kinahan, counsel for the Defendant
GREEN J.:
A. Introduction
1J.T. is charged that he did, on or between the 15th of July and the 12th of August, 2016 sexually assault a family friend's child, O.S., while she was visiting a home that he shared with his spouse and their children. O.S. was 10 years old at the time of the alleged offences. As a result, Mr. J.T. is also charged with sexual interference.
2Counsel fairly conceded that there were no issues with the approximate date of the offences, the jurisdiction in which the incidents were alleged to have occurred or the identity of his client as the alleged perpetrator. These concessions made sense since Mr. J.T. admitted in a statement to police that he had physical contact with O.S. on one occasion while he and his wife were babysitting her for a few days. However, Mr. J.T. disagreed with the timing and the nature of the acts described by O.S. and he denied that he sexually assaulted her.
3These admissions by Mr. J.T. assisted substantially with focusing the trial on the following disputed issues:
Whether the evidence of the defence witnesses is to be believed and/or whether it raises a reasonable doubt;
Whether the Crown has proven beyond a reasonable doubt that the acts alleged by O.S. occurred as she described them to the Court;
If the Court accepts O.S.'s account beyond a reasonable doubt, the next issue is whether the Crown has established that these acts amount to the physical elements of the offences of sexual assault and/or a sexual interference; and
If the Crown has proven the actus reus of these offences, the Court must still consider whether the Crown has proven beyond a reasonable doubt that Mr. J.T. possessed the necessary mental element for each of these offences.
4The Crown called two witnesses to prove these offences: O.S. who was 11 years old when she testified and her mother, L.S. L.S. was not present when the incidents occurred but O.S. disclosed to her mother that something bad happened to her while she was at the Defendant's home almost immediately after she and her mother left his home. The Crown also introduced a statement that Mr. J.T. gave to police a few weeks after the alleged incidents. The Crown urged the Court to discount the exculpatory aspects of his statement and accept the inculpatory parts that corroborated the complainant's account. The Defendant did not testify at trial. The defence called three witnesses who were present in the house when these incidents were alleged to have occurred to provide evidence that contradicted aspects of the complainant's account. In addition, based on their observations of the complainant's conduct, they also provided evidence explaining why they do not believe that Mr. J.T. committed the acts as alleged by O.S.
5A review of each of these witnesses' accounts is essential to address the issues to be decided in the context of the evidence as a whole.
B. Evidence
Crown's Evidence
i. Complainant's Mother, L.S.
6The complainant's mother, L.S., provided the Court with evidence about the relationships of the various parties, the time line of events and her daughter's disclosure to her shortly after the incidents.
7She described O.S. as normally a bubbly, affectionate and happy child. Although she was only 10 years old at the time of the alleged incidents, she had already begun developing breasts. L.S. explained that she had always talked to her daughter about her body. O.S. was aware of her body parts, private areas and that no one was supposed to touch her body. L.S. said that she had it "drilled" into O.S.'s head that no one was to touch her body and that, if anyone ever touched her and told her not to tell, that she should tell immediately even if she was being threatened by the person.
8In July of 2016, L.S. and her boyfriend, G., were friends with J.T. and his spouse, A.B.. L.S. referred to the couple as "close friends". She was not aware of any conflicts in their friendship. Mr. J.T. and Ms. A.B. lived in a small town and L.S. resided about 10 minutes away from them. L.S. frequently visited the T. home with her daughter, O.S. and sometimes Ms. A.B. would visit her home. L.S.'s young daughter O.S. accompanied her mother during these visits but they did not normally stay overnight.
9By all witness account during this trial, O.S. enjoyed attending the T. household. L.S. explained that prior to the alleged incident, her daughter "loved it over there". O.S. had a very good relationship with Mr. J.T.. She liked him and enjoyed spending time with him. She thought that he was funny. O.S. referred to Mr. J.T. as Uncle J.T. and Ms. A.B. as Aunt A.B.. She always greeted Mr. J.T. in a friendly way and she would normally hug him goodbye when she left. While she saw her daughter hug Mr. J.T., L.S. advised that she had never seen him tickle her child. She fairly stated that she had never witnessed any behaviour by Mr. J.T. towards her daughter that caused her any concern.
10The other fact that all witnesses agreed upon was that the T. household was extremely busy with three adults and three young people sharing a small home as well as a number of teenage visitors. L.S. described the home as an old farmhouse with two bedrooms and a single bathroom upstairs and the kitchen and living room were on the main floor with a small additional room. Ms. A.B.'s teenage daughter S. resided in the home and her boyfriend A.J. would regularly visit. Mr. J.T.'s daughter L. also resided in the home on a part time basis. S. and L. often had friends visiting their home. In addition, the couple had a boarder living in the extra room on the main floor of the home, M.S.. Ms. M.S.'s daughter, K., also resided in the home on a part time basis.
11Sometime during the week prior to July 16th, L.S.'s boyfriend was unexpectedly in a crisis situation and he had to be taken to the hospital. She turned to her close friends for assistance with attending the hospital and watching her child. L.S. believed that it was the Wednesday night when she arrived at their home but she conceded that it could have been as early as Tuesday. She related that Ms. A.B. offered to drive her to the hospital because the head light was out on her vehicle. During cross-examination, she conceded that she struggled with a pain condition and she may also have taken Percocet's to alleviate her pain that day but she advised that did not impede her ability to drive. She denied that she was operating her car without insurance.
12That same evening, L.S. asked Ms. A.B. and Mr. J.T. if they could babysit her daughter O.S. while she stayed at the hospital with her boyfriend. After spending hours at the hospital on that first night, she returned to the T. home in the early morning hours and shared the couch with her daughter to get some sleep. They spent some time at the T. household during the next day but she believed that they went home that evening. They returned to the T. household the next day and L.S. arranged with Ms. A.B. for O.S. to have another sleepover so she could return to the hospital. L.S. believed that her daughter would enjoy the company of all of the kids at the T. house and they also had a pool and a trampoline. She denied that she left her child at the T. household from Tuesday to Saturday without returning to see her or bring her home. When she first arrived at their home, she was in the midst of a crisis situation and she initially had no idea how long her boyfriend would be in the hospital. As a result, she would not have brought enough of O.S.'s clothes and belongings to care for her for almost a week.
13While L.S. was not sure about what day of the week that this whole situation began, she was very clear that the last day her daughter spent at the T. household was on Saturday July 16th. She spent the day at the hospital and returned to the T. home around 9:30 p.m. When she arrived at the house, her daughter was behaving differently. She described O.S. as clingy and she asked her mom if they could leave immediately which was very unusual. Generally, when L.S. would pick her daughter up, she would not want to leave because she always had fun at their home. L.S. told her daughter to wait because she wanted to update Ms. A.B. and S. about the state of her boyfriend. L.S. did not exaggerate her evidence about her observations of her daughter's odd behaviour. She stated that she didn't even realize that anything was wrong with her daughter until after they left the T. household.
14L.S. related that they were initially in the living room while she updated her friends and her daughter was with her. They moved into the kitchen before they left the house. She could not recall having tea while she was at the house. While L.S. was certain that her daughter wanted to leave, she agreed that there might have been some discussion with the people present about returning the next day to have pancakes for breakfast. L.S. planned on returning in any event because she wanted them to watch O.S. again while she went to the hospital. As L.S. and O.S. were leaving the house, L.S. noticed that her daughter said goodbye to A.B. but did not say anything to Mr. J.T. who was also in the kitchen. Considering their warm relationship, she was surprised by her daughter's conduct. She recalled Mr. J.T. saying "what, I don't get a goodbye?" O.S. walked around the kitchen table as far away from Mr. J.T. as she could get and exited the home.
15O.S. was usually a chatty child. After they left the house, L.S. noticed that she was being very quiet. She asked her what was wrong and O.S. replied that she couldn't talk about it, she couldn't talk to her and she couldn't say it. Alarmed by her daughter's behaviour, L.S. drove to her boyfriend's parent's home and pulled over to talk to O.S. but she still wouldn't tell her mother what was wrong. By this time, O.S. was very upset and crying. L.S. asked her "what did he do to you?" O.S. repeated that she couldn't say it. L.S. began backing up the car and O.S. began screaming "mommy, don't take me back there." She reassured her daughter that they were going to her see her boyfriend's mom, Darlene, because they were very close to each other.
16Counsel challenged L.S. as to why she immediately asked her child what "he" did to her when she realized that O.S. was upset in the car. He suggested that her question implying that Mr. J.T. did something may have impacted O.S.'s account of what happened to her. L.S.'s assumption that Mr. J.T. did something wrong was based on her observations just before they left the house. Her daughter said that she wanted to leave which was not normal and then she witnessed her daughter behaving unusually towards Mr. J.T. and she purposefully avoided him when she left the house. O.S. was not her normal self and then became upset and cried almost immediately after leaving the house. It is understandable that L.S. assumed that Mr. J.T. had done something to upset her daughter in these circumstances. Moreover, other than asking what "he" did to her, she did not engage in any suggestive questioning or insist that her daughter disclose the allegations to her. Rather, she provided her child with a supportive environment and alternative means to express what she could not say out loud.
17When L.S. arrived at Darlene's home, she told Darlene that she thought Mr. J.T. did something to O.S. They both tried to find out what happened but O.S. repeated that she could not say it and added that it was evil and wrong. Darlene got her a piece of paper and asked her to write it out instead. O.S. wrote a note that was filed as exhibit #2 in the proceedings:
He said Don't tell anyone I Playd with your ( illegible word crossed out ) boobs I ( letter scribbled out ) looked to him pushed him Away from ( letter scribbled out ) me
18L.S. asked her again if Mr. J.T. touched her but she continued to say that she couldn't talk about it, she couldn't say it. Throughout this conversation with her daughter, L.S. described her as too upset to talk about the incident. After O.S. made this written disclosure, L.S. left her daughter with Darlene while she attended her boyfriend's brother's home to contact the police. L.S. met with Officers that very same evening. It was an admitted fact that police responded to this complaint at 11:26 p.m. on Saturday July 16th. L.S. brought her daughter to be interviewed by the police at the station 4 days later on July 20th, 2016. In between those dates, L.S. advised that, on the Sunday morning following the initial disclosure, she went back to Darlene's home to pick up her daughter. She reassured O.S. that she did nothing wrong and that she was proud of her. Her daughter told her that she was scared during the night because she heard a noise and she thought Mr. J.T. was coming to get her. She disclosed an additional detail to her mother that when she was at the T. house, she had been upstairs and was going down the stairs when Mr. J.T. grabbed her bum. She did not tell her mom that Mr. J.T. picked her up at the top of the stairs.
19After O.S. disclosed this incident to her mother, L.S. abruptly ended her relationship with J.T. and A.B. despite having plans to return to their home the following day. She was instructed by the responding officer not to have contact with them. Since that night, she has not returned to the T. household and she has not spoken to Mr. J.T.. Ms. A.B., who had no idea initially that something was wrong, texted L.S. to inquire what was going on. L.S. replied to Ms. A.B.'s message that she had a migraine to explain why she had not been around.
20During cross-examination, Counsel confronted L.S. with aspects of her videotaped statement to police when the events were fresher in her mind. He pointed out that after her daughter wrote the note and she asked her again did "he" touch her, she stated that O.S. replied "I don't know mommy. I don't know." Counsel suggested that this response was different than her evidence in chief that her daughter said that she couldn't talk about it. As he was cross-examining L.S., Counsel inadvertently added words to his suggestions that were not actually in the recorded response. He suggested that her daughter said that she did not know " if he touched her" but that is not what L.S. said to the police or in Court. After L.S. asked her daughter if he touched her, she said "I don't know" she did not say "I don't know if he touched me". There is a significant difference between these two quotes.
21L.S. conceded that she may not be able to recall exactly what words her daughter spoke when she responded to the question or when she said I don't know. She explained that her daughter was very stressed out and crying after she wrote the note and she did not want to talk about it. She recalled that her daughter said in the car "I don't know" and "I don't want to talk about it" within minutes of each other. It should be noted that even if O.S. actually said "I don't know" after her mother's question did he touch you, she may not have been responding "I don't know" to the question, rather, she was trying to relate that she didn't know if she could talk about the incident. These statements should be contextualized to this child's emotional state at the time and her repetitive assertions that she didn't want to talk about it.
22L.S. was a credible witness who gave her evidence in a straight forward manner. She clearly harboured no resentments towards Ms. A.B. or Mr. J.T. prior to her daughter's disclosure. Quite the contrary, she was relying on Ms. A.B. and Mr. J.T. to be her support system as her close friends and to help her with her daughter so that she could attend to her boyfriend who was also their friend. Upon realizing her daughter had suffered some kind of trauma, she prioritized her daughter's needs and immediately severed her friendship and contacted the police.
ii. Complainant's Evidence, O.S.
23O.S. presented very well during her recorded interview with the police and while testifying in Court. She consistently related a simple account of what happened to her while she was staying at the T. household. The core details of her account about what Mr. J.T. did to her in his bedroom and in the hallway while she was visiting them were unwavering although she was not certain about some of the peripheral details of other events that occurred before and after she was touched by Mr. J.T.. O.S. was also consistent that, before this incident happened, she was fond of Mr. J.T.. She described him as funny and he liked to tickle her back and her feet.
24During O.S.'s recorded statement, her attention was clearly focussed by the Officer on the specifics of the allegations not what happened immediately before or after the incident occurred. She was asked to tell the Officer why she was at the police station. She replied "an adult grabbed me in inappropriate places". O.S. briefly explained that she was at the T. house in the upstairs bedroom with S. (Ms. A.B.'s daughter), S.'s boyfriend A.J. and a person who she believed to be S.'s cousin. Mr. J.T. was in his bedroom on the same floor and she went into his room to see what he was doing. He was on his phone downloading a game. He began tickling her on her stomach over her clothes and on her back under her clothes. She returned to the S.'s bedroom.
25At some point, S. and her cousin left the room and only A.J. was in the girls' bedroom. O.S. wandered back over to Mr. J.T.'s bedroom a second time. He was still on his bed and she was initially sitting beside him. She said that he started tickling her again on her stomach and her back. At one point, he lifted the back of her shirt up but she pulled it back down and then he was tickling her stomach over her clothes but this time, his hands went higher up on her body. To demonstrate where his hands were touching her, she pointed to the middle of her chest between her breasts. When she was about to leave the room, he told her "not to tell anyone that he was playing with my boobs". She asked him "like you did?" or "you were playing with my breast"? He replied, "yeah, I always got you by these. And then um, he's like this to my breast ( she gestured a fist pump to her breast )"
26When reviewing this statement, it is evident from O.S's account to police that she did not initially appreciate that Mr. J.T. intentionally did anything wrong by touching her breast area while he was tickling her. Mr. J.T. alerted her to the fact that he did something wrong when he admonished her not to tell anyone that he "played" with her "boobs". She immediately sought clarification by asking him if he touched her breast. This upsetting realization was then compounded and confirmed by Mr. J.T. deliberately touching her breast again. She was so upset by his conduct that she left his room.
27When O.S. returned to the other bedroom, she remembered staring at the wall for a long time. She also recalled that A.J. asked her if something was wrong and whether Mr. J.T. had said anything or done anything to her. She said that she was freaked out so she didn't answer his questions. Eventually, they were called to go downstairs for dinner. A.J. led the way and Mr. J.T. came up behind her. She related that Mr. J.T. picked her up, started tickling her back again and grabbed her butt.
28O.S. went downstairs and had dinner with the rest of the kids who were in the house but she thought that S. had gone next door to her grandparents' home to do some laundry. After dinner, they all went back upstairs. S. told her that they were going to the Dollar store and O.S. went with them. A.J. wanted to buy a present for S. because it was their anniversary. While they were out, O.S. thought that Mr. J.T. looked angry with her because she wouldn't talk to him or go near him.
29Sometime after they returned from the Dollar Store, O.S.'s mother arrived at the house. After her mom arrived, she remembered going for a walk with S. so they could check on a neighbour's horse. When they returned, her mom was still at the house. She believed that her mom noticed that she was acting weird. When she and her mother were leaving, she said goodbye to everyone except for Mr. J.T.. He got really angry and he said "you are just going to leave and not say bye to me?" She ignored him and walked out the door. As soon as they were inside the car, she let her mother know that she was very upset but she was too worked up to talk about what happened with anyone at that time. She agreed that she was eventually able to write out what occurred on a piece of paper.
30During her testimony, O.S. adopted her statement to police and confirmed that she told the Officer the truth about what happened to her. She clarified one part of the statement wherein she misspoke and said that Mr. J.T. went down the stairs in front of her. She explained that Mr. J.T. was behind her and A.J. was in front of her half way down the stairs. To be fair, she corrected this misstatement long before the trial during the same interview with the police. At page 15 of the transcript of her statement, she told the Officer that Mr. J.T. was behind her and A.J. was in front of her as they descended the stairs.
31Almost 14 months after the incident, O.S. testified about what happened to her and the events that occurred before and after Mr. J.T. touched her inappropriately. The questioning during the trial was far more detailed than her interview with the police and, understandably, her recollection of some of the extraneous details was somewhat hazy.
32O.S. provided more details of the narrative of events to the best of her recollection. She related that, before this incident, she visited the T. household very often as many as three to four times a week. She enjoyed going to their home to "hang out, go outside and talk". The family had a trampoline and a pool. She was asked specifically why she liked going there and she stated simply "because they are nice people". It was evident to the Court that she cared about this family and would have been saddened by not being able to return to their home.
33Considering her young age, how much time she spent at this home and that the details of the events in her life prior to the incident were not discussed during her interview with police, not surprisingly, she could not recall much about her activities during the days leading up to these relatively brief incidents. A significant part of her cross-examination focused on these extraneous details. She did not know how many days she had been staying at the T. home or what day of the week she arrived at their home. She could not recall what she was doing during the day before the incident. She did not recall going berry picking on the date of the incident and she believed that they went to the camel races at the church on a different date. She did not recall everyone who was present in the home. She didn't think that M.S. or L. were home.
34Counsel also carefully explored more of the details about the touching incidents. He confirmed that she voluntarily entered Mr. J.T.'s bedroom and she had done so in the past. She agreed that the door to his room was open while she was inside. When she entered his bedroom, he was lying down on his bed on his left side and he was downloading a game on his phone. At one point, she was standing beside him, facing him and he was still lying down when he began to tickle her. While he was tickling her, he put the phone down on the bed.
35When Counsel suggested that he tickled other parts of her body, she clearly stated that he tickled her under her shirt on her back and over her clothes on her stomach. He also suggested that Mr. J.T. only touched the middle of her chest and she corrected him and said that it was in the whole area of her chest. Counsel emphasized to her that she did not tell the Officer that Mr. J.T.'s hands were all over her breasts. While she may not have specifically said that his hands were all over her breasts during her interview, she said that his hand had moved up from her stomach and she pointed to the middle of her chest. The Officer said "so you pointed to your breast. Um, was that over your clothes?" and she replied "over". The Officer asked her a second time to go over that part again "so, he tickled you. And you said not on your stomach area…" and she replied "up higher". She was never asked to describe in more detail how she was touched nor did she say that he only touched the middle of her chest. She pointed to that area and then confirmed that he touched her breast. She also explained at the end of her cross-examination that, to her, chest and breast meant her "boobs".
36O.S. presented as a fair and attentive witness. She agreed that the tickling episode probably lasted only a minute although she was not timing it. While she was being tickled, she confirmed that she was moving around and laughing in response to being tickled and he only touched her breasts for a brief period of time. Counsel suggested to O.S. that Mr. J.T. had only accidentally touched her chest area and she firmly replied no.
37Counsel asked her about the note that she wrote to her mom and Darlene and what the word was that she scribbled out before "boobs". O.S. could not recall what she scribbled out or why but she believed that she just spelled something wrong or mixed up the letters which makes sense considering she was only 10 year old. O.S. was also challenged about writing in her note that "I looked to him, pushed him" and that she did not tell the police that she had pushed Mr. J.T.. Counsel pointed out that she had met with the Crown in advance of the trial and did not mention that she forgot to tell the police that she pushed Mr. J.T.. O.S. candidly admitted that she did not remember that detail until she read her note. In re-examination, the Crown confirmed with O.S. that she had not seen that note since the night that she wrote it up until the trial date. The obvious point was that she could not tell the Crown or the police about a detail that she did not remember until her memory was refreshed by the note.
38Counsel also challenged O.S. about why she didn't write more details in her note like having her behind grabbed as she was going down the stairs. She wasn't able to explain why she chose to write some details as opposed to other details. It is important to consider O.S.'s state of mind when she wrote that note. Her mother testified that she was extremely upset and she had repeatedly said that she didn't want to say what happened to her that day. During the trial, when O.S. was pressed to provide many more details, she responded to all of the questions as best she could at this stage of the proceedings. For example, she was asked a number of questions about the second time that Mr. J.T. touched her breast. She explained that when she stopped squirming and jumping while being tickled, Mr. J.T. told her not to tell anyone that he played with her "boobs". She was standing in front of him and then "he touched my boob area after that" by fist bumping her breast. She confirmed that he did not cup her breast or squeeze it, he fist bumped it.
39O.S. did not present as a witness who tried to exaggerate or embellish her account during her evidence. She was calm and polite throughout her testimony albeit emotional at appropriate moments. She fairly agreed with some of the suggestions that were put to her by counsel. In contrast, she firmly and consistently denied each suggestion that was put to her by Counsel that she was not touched in the manner that she described to the police and the Court. She was completely unshaken in her account of what Mr. J.T. did to her that day.
40Counsel went on to question her about what happened after the alleged touching and suggested to O.S. that A.J. never checked to see if she was alright. She maintained that he did ask her and she did not respond because she was "kind of shocked" by what just happened. In terms of who else was in the room at that time, she indicated that she believed that S. was not upstairs at this point but she conceded that it is possible that she was there although she was sure she went to do the laundry at one point.
41O.S. recounted that, following the upsetting incident with Mr. J.T. and after being in S.'s bedroom for some time, she was called down for dinner by Ms. A.B.. When she left the bedroom, she encountered Mr. J.T. at the top of the stairs and that is when he touched her again. Counsel suggested to her that it was not possible for Mr. J.T. to pick her up, tickle her and grab her butt at the top of the stairs all at the same time. She provided a simple explanation that "he did it, like, step by step." He "kind of" picked her up, tickled her, put her down and grabbed her butt. O.S.'s account during the trial was consistent with what she told the police but she provided additional details about the sequence of events. Counsel suggested to her that none of this touching happened at the top of the stairs and she repeated each time that these incidents did happen.
42After these incidents, O.S. related that she felt uncomfortable being with Mr. J.T.. She expressed that she felt happy when her mother arrived to pick her up. Counsel challenged O.S. about her conduct after her mom arrived at the house. He suggested that she was outside on the trampoline at that time and she said that did not happen. She did, however, say during her evidence in chief that she was outside taking a walk with S. when her mother arrived at the house. Counsel also suggested that she had been berry picking earlier in the day. He suggested that she actually did not want to leave the house that night when her mother came to get her to bring her home because she wanted to sleep over and have pancakes and berries for breakfast the next morning. O.S. emphatically repeated that she wanted to go home once her mother got to the T. household.
43While I will address the defence evidence on this issue, the berry picking evidence was in many ways the proverbial "red herring" during this trial. Whether or not O.S. went berry picking or hoped to have pancakes for breakfast, it is evident that, within a very short period of time of leaving that house, she was in tears in her mother's car and trying to communicate that something that she perceived to be "evil" happened to her while she was there. No matter how she appeared to other people in that house who had no idea what she had experienced, she emotionally expressed to her mother that she did not want to return to that home, a place that she previously loved to be at, once she was in the safety of their car. It was admitted that the police responded to a call about this matter within hours of O.S. and her mom leaving that home.
44O.S. provided a candid and credible account of what happened to her at the hands of someone she cared about and trusted. She was an impressive young witness. She presented as a girl who was not prone to exaggeration or embellishments and the core of her allegations about how, where and when she was touched by Mr. J.T. remained consistent throughout her statement to police and her testimony. While these incidents of touching may seem to be relatively minor, her profound feelings of betrayal were palpable while she testified in Court.
45I have addressed the issues that I have considered to be the most salient during cross-examination. Any failure to refer to any portion of the evidence or any submission is not a reflection that I have not considered the evidence or submission. Furthermore, while counsel's cross-examination was both thorough and detailed, it should be noted that he addressed this child witness at all times in a calm, professional and patient manner which reflected very well on his skills as an effective and experienced advocate.
iii. The Defendant's Statement
46Almost four weeks after this incident, on August 12th, 2016, Mr. J.T. was interviewed by police. During his statement, he disputed when this incident of physical contact occurred during the week they were babysitting O.S. and he denied that he sexually assaulted O.S. Nevertheless, in many respects, he corroborated significant details of O.S.'s account that physical contact that could be "misconstrued" happened while she was in his bedroom during that week. In addition, the significance of his statement to police became more apparent as the trial progressed since his own version of what happened contradicted the defence witnesses in many important respects.
47Mr. J.T. told the police near the end of his interview, at page 32, that prior to this incident, he had a very affectionate relationship with O.S. He said: "I used to hug her all… she'd like hug me constantly" and "like she'd hug me all the time and you know" (at page 32). Nevertheless, he started off his interview by claiming that O.S. was a compulsive liar and that she had been paid to lie at school. These seemingly baseless allegations were not put to the complainant or her mother and I do not attribute any weight to them. Mr. J.T. also proffered a convoluted conspiracy theory about why these allegations were being brought against him at the behest of some neighbours who had it out for him and wanted him out of the house. Mr. J.T.'s explanations for the complainant's accusations made little sense particularly in light of the fact that he went on to admit to the Officer that he did in fact have a physical encounter with O.S. during the period of time that they were babysitting her while he was alone with her in his bedroom.
48Mr. J.T. confirmed that L.S. had dropped her daughter off at their home late one evening because her boyfriend had been hospitalized. His wife, Ms. A.B., drove L.S. to the hospital because L.S. had no insurance for her car. They had a house full of kids and their boarder, Ms. M.S., was also home so he agreed that it was fine for O.S. to stay over. He could not recall all of the kids who were at the house that week but he believed that it was S. (Ms. A.B.'s daughter), S.'s boyfriend, L. (his daughter) and Sam or "Steff" may have been there too. He told the Officer "I don't know if Sam was there that weekend or not." He repeated that he could not recall if it was Sam or Steff there " that weekend " and then that he didn't think Steff was there. ( emphasis mine )
49After calling O.S. a compulsive liar, he admitted that he had in fact had a physical contact with O.S. while he was alone in his bedroom with her while she was at his home. He stated at page 15 that "the only thing I can think of and it was me and A.B. were talking it over, is she asked me what I was doing…" Near the end of his interview he repeated "I don't understand it either, that's what we've all been trying to figure out because…" ( emphasis mine ) It is evident that he discussed the incident with his spouse and the other members of the household and they tried to reconstruct the events together which is very problematic. Each witness may have unintentionally influenced and tainted the recollections of the other defence witnesses. What is not clear is whether or not he provided the defence witnesses with the same details that he provided the police because his account actually confirmed O.S.'s account in many respects and contradicted the witnesses called by the defence. For example, he stated that while O.S. was visiting his home that last time, he recalled that the following incident occurred:
Page 16: He was in his room and O.S. came in and asked him what he was doing ( confirming complainant's account );
Pages 16, 20 and 30: He was lying on his bed loading games on his phone and he put the phone down on the bed after she came in the room ( confirming complainant's account ) O.S. came over and laid over the bed on his arm;
Pages 15, 16 and 30: He repeated during the interview that he told her that was an inappropriate place for his arm to be and asked her to get off of his arm ( confirming that his arm and later in his statement specifically his hand touched her body in an inappropriate place, in particular her breast );
Page 34: yeah well she … she never said (35) anything to me, she just walked outta the room, right, cuz …I said I'm getting up can you go". The Officer interrupted him and pressed for more details: "yeah, she said she didn't say anything, she… well she said she kind of re-repeated it and then pushed away and left… He replied "yeah". The Office inquired further "…kind of thing, does that sound about right?" and he replied "yeah, yeah" ( confirming in part the complainant's account that she repeated what he said about touching her boob and also what she wrote in her note that she pushed him away )
50The Officer asked Mr. J.T. if he liked to tickle her and he said at page 17 that that she goes "down in the dumps real quick" so he likes to give her "a couple of pokes" and that makes her happy again. This is consistent with the complainant's account of being upset while she was with him at some point and he subsequently touched her. The Officer suggested that he was tickling her when she was in his bedroom and he replied "yeah" ( confirming the complainant's statement that he ticked her while she was in the bedroom ). The Officer suggested that he tickled her stomach and chest area and he replied at page 18 that he didn't "remember that but okay" because he always tried "to avoid that". At page 23, they discussed him tickling her again and he said "yeah, I'd give her a poke every once in a while, not, you know" and page 24 "and not… like in that type a way." Later on in his statement, he said that the tickling occurred as they were heading down the stairs afterwards ( confirming the complainant's account that he touched her at the top of the stairs ).
51Detective Wilson confronted Mr. J.T. a number of times about O.S.'s allegation that he told her not to tell anyone that he touched her "boob". Mr. J.T.'s responses changed during the interview from a complete denial to an acknowledgement that he did admonish her not to tell anyone:
Page 18: "I never told her that" and in response to a suggestion they had a conversation about touching her he said "no we never did"
Page 19: "you said don't tell anyone I played with your boobs" and he replied "I never… see I never said that";
Page 19: immediately after denying he said anything, the Officer pressed him as to whether there was something said that O.S. might have misunderstood and he replied "well, when she got off my arm I told her, you know, it's not a good idea to say anything about that because it'll just cause a problem"… "that she was leaning on my boobs, or leaned on her arm like… I was like this sitting on the bed so she leaned and it was right in my hand " ( confirming the complainant's account that after his hand was on her breast he told her not to say anything )
Page 20: my arm was down and I said that's not a good place for my arm and then she … you know, you need to get up, and then I said, you know, that's … if you, you know, you say something like that somebody's gonna misconstrue it" The Officer inquired what he was referring to and he replied "that my hand was on your boobs cuz my hand… that's literally where my hand was … and I said if you said something to that it's gonna… somebody's gonna misconstrue it and cause a bigger problem" ( confirming the complainant's account that after his hand was on her breasts he told her not to say anything about touching her "boobs" );
Page 30 "like I said, the only thing I can think of is like I said, I told her, you know, all I said to her is, you know, you know, that… that could cause a problem if you say something, that's the only thing."
Page 31: the Officer confronted Mr. J.T. with how strange it was for him to say something like that in light of his story that O.S. leaned her breast on his hand and he claimed that "well it… it, you know, like I probably wasn't thinking at that time cuz I was so tired."
Page 34: "I think I said that can misconstrued as the wrong… depending on how you say it, it could be misconstrued the wrong way. I probably didn't go through the right way to her and…"
Page 37: After being left alone in the interview room for about 20 minutes, Mr. J.T. proffered a whole new story for why he might have said something to her about not saying anything. He claimed that they had been called down for dinner and he told her to get out of his room so he could put his pants on and she might have seen him with his pants part way down and he said to her "you now, you gotta be careful how you say something like that cuz it could be misconstrued". Despite already having clearly told the officer this comment had to do with his hand being on her "boob", he claimed that when he was pulling his pants up "that's the only time I… the only thing I can think of is when I wouda said that…"
At page 38 the Officer emphasized that O.S. said he told her not to tell anyone that he played with her boobs and he changed his story one last time and went to back to his initial claim "see I never said that"..."
52It was obvious while watching and listening to this statement that Mr. J.T. vacillated from a complete denial that he instructed O.S. not to tell anyone that he touched her "boobs" to admitting that is effectively what he said to O.S. After spending some time on his own to think through what he just admitted, he came up with another story to explain why he made a comment like that to O.S. Unlike O.S., Mr. J.T. was not able to maintain a consistent account of what he said to her after his hand touched her breast. I find that he presented as an individual who was trying to lie his way out of an obviously incriminating admission. I also find that he did make the statement as alleged by O.S. Furthermore, I infer from this statement that he admonished her not to tell anyone that he "played" with her "boobs" because he knew that he did something wrong.
53Mr. J.T.'s statement to police confirmed other aspects of O.S.'s account in a manner that directly contradicted the testimony of two of the defence witnesses. Two defence witnesses claimed that Mr. J.T. could not have touched O.S. at the top of the stairs as she described because he either came down the stairs several minutes later or he was not behind her when they descended the stairs for dinner. The Officer specifically asked him about O.S.'s allegation that he encountered her at the top of the stairs when they were called down for dinner and he grabbed her butt. He initially replied at page 18 "she's too short for me to do that". The Officer did not pursue this issue at first but, at page 31, she asked "so when she comes in your room then and you say she lies down on your arm, when does the tickling take place then? Is that before or after cuz at this…" He immediately replied "well at that time she had done that and I… we were going downstairs and I think I poked her and said hey smile, and that was it… (page 32) just in the ribs…" ( emphasis mine ) He also indicated that this subsequent incident of physical touching occurred in the hallway upstairs as they were "headed for the stairs".
54While Mr. J.T. only admitted to poking O.S. as they were headed down the stairs, he confirmed the complainant's account that they had a physical encounter in the bedroom and his hand touched her boob. He also admitted ( at some points in his statement ) that he admonished a 10 year old child not to say anything. He admitted that, at the top of the stairs, she appeared to him to need cheering up so he tickled her as they were headed down stairs. He unequivocally confirmed where he was positioned in relation to O.S. when they were called for dinner and they headed down the stairs at page 38 "then we both went down for dinner, I went down for dinner with… and she was in front of me ". The only person besides O.S. who knew exactly where he was positioned on that flight of stairs after he touched her in the bedroom and when they were descending the stairs was Mr. J.T.. In August of 2016, he told the police that he touched her again, after the incident in the bedroom, while they were at the top of the stairs in the hallway outside the bedrooms and she was in front of him as they were descending the stairs for dinner.
55Despite initially referencing the "weekend" as the time period when this incident occurred, he claimed during his interview at page 21 that O.S. was at his home for another week after that day. He also went on to say that he was unsure about the dates and that his wife had them recorded in her phone. L.S. and two of the defence witnesses were all unequivocal that O.S. was only at the house from the middle of the week until Saturday when the police were called by L.S. He confirmed at page 27 that O.S. was there for a week and after her mom came to get her, "we never seen them after that". At the very beginning of the interview, he told the Officer that he is dyslexic so he has difficulty recalling dates and names. I find that Mr. J.T. was mistaken at points during the interview about when this admitted incident of his hand touching O.S.'s breast happened and it did in fact happen on the Saturday as alleged by O.S..
56Finally, although it was suggested to O.S. that Mr. J.T. accidentally touched her breasts while he was tickling her, this was not the explanation that he proffered to police. Rather, he claimed that she leaned on his arm and her breast coincidentally ended up in his hand. At no point did he claim that he accidentally touched her breast while tickling her. While his account varied during his statement and he denied sexually assaulting O.S., he agreed that he tickled her in the room and/or in the hallway and that he warned her not to tell anyone that he touched her "boobs". He volunteered that he liked to poke her to cheer her up and that he poked her at the top of the stairs telling her to smile. He also confirmed that he was behind her as they proceeded down the stairs for dinner.
Defence Evidence
57It is important to keep in mind Mr. J.T.'s admissions when considering the defence evidence. Effectively, these witnesses were called as a means to raise a reasonable doubt about whether O.S. was actually assaulted by Mr. J.T. because he wasn't behind her on the stairs (Mr. J.T. admitted to police that he was behind her more than a year ago) and because of their descriptions of O.S.'s demeanour afterwards. There were only two people who knew when and how Mr. J.T. touched O.S. and how she reacted immediately afterwards and that is Mr. J.T. and O.S. As noted, he confirmed significant portions of her account and he confirmed that she wasn't smiling in the hallway at the top of the stairs after what happened in his bedroom. As a result, the defence evidence that suggests that this incident did not happen is of very little assistance to the Court because it is incorrect. Moreover, it is noteworthy that each of the defence witnesses had contradictory accounts of O.S.'s movements despite the fact that they obviously invested some time in discussing with each other what happened that day and they collectively tried to reconstruct what O.S. and Mr. J.T. were doing in the house.
iv. M.S.
58Ms. M.S. advised that O.S. was at their home for 5 days. She believed that she was dropped off sometime on the Monday evening because, when she woke up on Tuesday morning, she discovered that L.S. had slept over as well. She advised that L.S. left and did not return until Saturday. Although Ms. M.S. understandably had little recollection of what they were doing in the 4 days prior to July 16th, she professed to be able to recall in intricate detail what they were all doing on Saturday July 16th.
59On that day, Ms. M.S. related that Ms. A.B. took the children to the camel races but she did not go with them. When they returned from the camel races, she believed that some of the kids went to the Dollar store. O.S. related that she remembered going to the Dollar store on that day as well although she thought that it was after dinner. That same afternoon, Ms. M.S. recalled berry picking with her daughter, Mr. J.T.'s daughter, Stephanie and O.S. She said that S. and A.J. did not go berry picking. Later on that day, she advised that O.S. helped with making dinner and she had a specific recollection of O.S. being her normal talkative self while they were preparing dinner. During cross-examination, she agreed that O.S. went upstairs after helping with dinner but before it was ready. She could not recall what Mr. J.T. was doing that day. Ms. M.S. could only recall seeing Mr. J.T. later in the afternoon when he was in the house with everyone. Before everyone was called to come for dinner, she recalled that O.S. was upstairs with the other kids and she believed that Mr. J.T. was also upstairs.
60Ms. M.S. claimed that when everyone was called down for dinner, the children came down the stairs first and Mr. J.T. came down about 10 minutes after them. She was positive that the children all got their dinner and were seated before Mr. J.T. came down to eat approximately 10 minutes later. In contrast, Mr. J.T. described himself descending the stairs immediately behind O.S. when they were called down for dinner.
61Because O.S. stated that S. had left the house to do laundry at some point that afternoon, the laundry facilities became an issue during the trial. I accept Counsel's submissions that S. was not available to be called as a witness for personal reasons unrelated to the trial. Nevertheless, the Court does not have any evidence from her about what she did or didn't say to O.S. that lead O.S. to believe that she had to do some laundry and there is no evidence from her about whether she did or did not leave her bedroom around the time of the incident or shortly afterwards. More importantly, this is another peripheral and minor detail which has little if any relevance to these proceedings. Nevertheless, for the sake of completeness, I will address the laundry evidence. This evidence is only tangentially relevant insofar as this issue was raised with the defence witnesses in order to contradict O.S.'s account, however, the defence witnesses ( the two adults who lived in the house ) were inconsistent with each other on this peripheral detail. Ms. M.S. was asked about their laundry facilities in the house at that time and she responded that they had a dryer but no washing machine. She said that, if they had laundry to do, they would all go to the laundry mat together as opposed to S.'s grandparents' house.
62After dinner, Ms. M.S. said that some of the kids went into the living room and others went out to the trampoline. She was certain that O.S. was one of the children who went out to play on the trampoline. She was inside the house and the children were outside the house and she did not explain how she knew exactly what O.S. was doing outside. In addition, O.S. testified that she was outside after dinner, she just related being engaged in a different activity. Ms. M.S. advised that, when L.S. arrived at the house, she checked on her daughter outside.
63L.S. came into the house and Ms. M.S. said that she had some dinner and tea. Ms. M.S. said that she was present when L.S. updated her, Ms. A.B. and Mr. J.T. about L.S.'s boyfriend's state. The kids came inside about the same time. L.S. visited for roughly two hours. During this time, Ms. M.S. claimed that O.S. expressed that she did not want to leave with her mother because she wanted to stay over and have berries and pancakes for breakfast the next morning. She recalled that O.S. was upset and that was the only time she noticed that her demeanour was different during her visit. In contrast, Mr. J.T. described how O.S. got "down in the dumps real quick" at page 17 of his statement. Ms. M.S. advised that O.S.'s mom assured her that they would be back the next day for pancakes. As a result, the plan was for O.S. to sleep over again on the Sunday night. Before O.S. left the house with her mother, Ms. M.S. advised that she went around the table and gave everyone a "big hug" including Mr. J.T.. During cross-examination, however, she agreed that she could not recall exactly what Mr. J.T. said as they were leaving or what O.S. actually said but she insisted that she could recall O.S. hugging Mr. J.T..
64Ms. M.S. contradicted Mr. J.T.'s reported claims to the police of a conspiracy against him. She advised that, as far as she was aware, L.S. had not had any conflicts with Ms. A.B. or Mr. J.T. before these allegations came to light and neither had her boyfriend G.. L.S. also did not have any conflicts with Ms. M.S.. As a result, both she and Ms. A.B. were confused when O.S. and L.S. did not come back the next day.
65There were a number of issues with Ms. M.S.'s evidence including the fact that she discussed her recollections of what she believed occurred on that day with the other defence witnesses prior to the trial. Although she testified that she did not speak to Mr. J.T. about what happened before he went to the police station and she didn't know initially that the complaint involved O.S., she advised that they spoke afterwards about the allegations. Mr. J.T. told her that "he had been tickling her and that it had been taken the wrong way". She stated that "if he tickled her, but I didn't think it would have – I didn't believe it was true to be anything more than just tickling, no". Clearly, she spoke to Mr. J.T. about what happened on that day, the day that she claimed that she could remember O.S.'s moods and movements and he told her that he had tickled her and it was taken the wrong way. To be clear, when they discussed the matter, there was no indication that this incident happened any other day than the Saturday contrary to Mr. J.T.'s confusion about the dates in his statement. Otherwise, it would make little sense for all three defence witness to try and reconstruct what they saw and did on the Saturday. Moreover, he specifically told her himself that he had physical contact with O.S. and "it was taken the wrong way" yet Ms. M.S. was completely unprepared to accept that anything untoward happened to this child that upset her.
66Ms. M.S. advised that as the trial approached, she discussed the incident with both Mr. J.T. and Ms. A.B. in more detail. She agreed that they discussed what happened that weekend, what they saw and how O.S. was behaving. She also confirmed that a week prior to the trial she discussed with A.J. what he remembered from that weekend. Although she advised that she let him tell her what he remembered first, she also stated that she "reminded him" of certain facts.
67M.S. presented as a very biased witness who was unprepared to accept that something bad happened to O.S. even though she had immediately disclosed an incident to her mother once they left the house. Without knowing both accounts of the incident, she stated "I never believed it from the start". Ms. M.S.'s bias was highlighted by aspects of her evidence that were incredible. She described a happy but chaotic small home filled with 3 teenagers who lived there, a boyfriend and 2 or 3 additional visiting teenagers and 3 adults yet she professed to be able to recall the detailed movements and mood of a child who was also in the home. In particular, it was unbelievable that she had any recollection of the order in which the kids descended the stairs before dinner. Her testimony that she could recall, with such specificity, the details of this supposedly unremarkable Saturday afternoon and evening in July of 2016 but she had no recollection of what any of them were doing during the days leading up to this date was inconsistent.
v. A.B.
68Ms. A.B. is Mr. J.T.'s spouse. She and her husband were friends with L.S. and her boyfriend G.. Like Ms. M.S., she confirmed that they did not have any personal conflicts at that time with either L.S. or G.. In fact, Ms. A.B. had been friends with G. for a long time.
69She related a similar history that L.S. came to her house late on the Tuesday night of that week. Each adult seemed to have a different day of the week, Ms. M.S. thought it was Monday, Ms. A.B. thought it was Tuesday and L.S. thought it was Wednesday or Thursday. Discrepancies in peripheral details is normal and not necessarily an indication of a lack of credibility. L.S. sought Ms. A.B.'s assistance with getting to the hospital and taking care of O.S. She claimed that L.S. was "strung out" on Percocet's due to a migraine, she had no insurance on her car and there were issues with the car's brakes and headlight so she drove her to the hospital. They left the hospital very late and returned to Ms. A.B.'s home in the middle of the night. O.S. was asleep in the living room and L.S. slept over as well. L.S. returned to the hospital the next day and Ms. A.B. believed that she did not return again until Saturday.
70Ms. A.B. was not able to recall what she did with O.S. or the other kids who were in their home on the Wednesday, Thursday or most of Friday. Although Ms. A.B. was not certain, she believed that there was an outing to the Dollar Store at some point but she thought it might have been on the Friday night. She believed that Mr. J.T. took S., A.J. and O.S. to the Dollar Store. Both Ms. M.S. and O.S. believed that the Dollar Store trip was on the Saturday.
71Despite Ms. A.B.'s inability to recall what she was doing for most of O.S.'s stay, she was able to recall a bit more about what everyone was doing on Saturday. Like Ms. M.S., she described an incredibly busy small home full of children and/or teenagers. Both she and Ms. M.S. advised that L., S., K. and A.J. were home and there were additional teenagers present throughout the day. Ms. A.B. believed that the other teenager visitors present on July 16th were Jonathon, Sam, Stephanie and maybe Storm. They both testified that some of the children went to the camel races on the Saturday but they provided conflicting accounts of who went to the races. Ms. M.S. said her daughter remained with her at the house but Ms. A.B. said K. was one of the children who went on this outing. Considering how busy they were that day, it is understandable that they would not recall where each child was and which child participated in what activity. After the camel races, Ms. A.B. went out grocery shopping with Mr. J.T.. When they returned home, while she was putting away the groceries, the kids brought in some berries in containers that they found down the road.
72Ms. A.B. indicated that she started making dinner and O.S. went looking for S. who she believed was in her room. Ms. M.S. claimed that O.S. helped with preparing dinner and that she had a specific recollection of O.S. being her regular happy self while helping with dinner. In contrast, Ms. A.B. indicated that O.S. did not help with making dinner, rather, it was just her and Ms. M.S. preparing dinner in the kitchen. She fairly stated that she did not know where her husband was immediately before dinner. She recalled that everyone was called to come for dinner but she could not say in what order the kids arrived at the table. She explained that it is a rule in their home that the kids eat first and then the adults. She believed that after the children got their dinner, the three adults got their dinner. She didn't notice where Mr. J.T. came from because she was busy with dishing out the food to the kids. She explained that the children got their food and ate wherever there was space to eat. They were at the table, in the living room or upstairs. She could not say where O.S. ate her dinner and she was not too sure where O.S. was after she ate her dinner. For the most part, according to Ms. A.B., O.S. was doing her own thing with the other kids.
73Ms. A.B. remembered S. being present for dinner and she was sure that S. did not leave to do the washing. Of course, she could not say whether S. was upstairs before, during or after the incident happened with Mr. J.T. because she wasn't sure where any of them were in the house at that time. In terms of the washing, she explained that they had a washing machine and a dryer in the house. Ms. M.S. testified that they did not have washing machine at that time. The Crown asked Ms. A.B. if they made regular trips to the laundry mat as indicated by Ms. M.S.. Ms. A.B. claimed that did not happen unless they were doing blankets, otherwise they used the washing machine. It really doesn't matter how or where they did their laundry since they can't say what S. said to O.S. that day or whether she was in the room with O.S. when the incident happened with Mr. J.T.. This evidence simply highlights that one of them, either Ms. A.B. or Ms. M.S., was mistaken about who was present at the camel races and one of them was mistaken about life events as routine as how they did their washing. Their recollections about some details, just like O.S.'s recollections about what activities she was engaged in earlier that day, have been impacted by the passage of time.
74Ms. A.B. believed that L.S. arrived when it was getting dark which was around 7:30 or 8 o'clock and she believed that she stayed for about 2 hours. She recalled O.S. coming inside to give her mom a hug and then she left again to go outside with the kids. She could not hear what O.S. said to her mom, if anything. She did not notice anything unusual about O.S.'s behaviour towards Mr. J.T. or anyone else. She did, however, recall that O.S. did not want to leave the house that night and that they had to "bribe" her by assuring her that she could come back for berries and pancakes on another day. Ms. A.B. had a more exaggerated version of events than Ms. M.S. with respect to O.S.'s conduct before L.S. left the house. She advised that O.S. said she didn't want to leave and then she ran off upstairs but Ms. A.B. called her back down. She said that O.S. was upset and crying because she didn't want to leave and they had to reassure her that she could have pancakes for breakfast when she returned to their home.
75After they left the house that night, Ms. A.B. did not hear from L.S. again. L.S. abruptly terminated their friendship without any explanation. She tried to contact L.S. but there was no response. After 2 or 3 weeks passed, she received a text from G. explaining that something bad had happened with O.S. She believed that nearly a month had passed before they heard from the police. Ms. A.B. accompanied Mr. J.T. to the police station to give a statement. She agreed that she talked to him about what happened with O.S. In contrast to what Mr. J.T. eventually told Ms. M.S. that there was a misunderstanding as a result of him tickling O.S., Mr. J.T. told Ms. A.B. that there had been a "misunderstanding" between him and O.S. because of something that happened when he was lying on their bed, which is a high bed, and O.S. was leaning over the bed.
76Ms. A.B. accepted her spouse's explanation and then she set about discussing the matter with the other witnesses in terms of their recollections of what happened on that Saturday. Like Ms. M.S., she agreed that they tried to collectively recreate a time line of events for the Saturday, the last day that O.S. was at their home. After they spoke with Mr. J.T., they both believed that whatever happened with O.S. occurred on that last day contradicting Mr. J.T.'s confusion during the police statement that he believed that the touching occurred earlier on in the week.
77Ms. A.B. was very honest about the extent to which she discussed this matter with the other witnesses and Mr. J.T.. She indicated that, when it first happened, she and Ms. M.S. discussed the allegations and "we started documenting everything we could remember". She also spoke with S. and A.J. about their observations and asked them to "document anything that stood out to them". She described that she "kicked into high gear to document things" although none of these documents were produced to the Court. Ms. A.B. candidly admitted that she was worried about what would happen if Mr. J.T. was found guilty because, at that time, he was the main source of income for them.
vi. A.J.
78Mr. A.J. is a 20 year old young man. He was S.'s ( Ms. A.B.'s daughter ) boyfriend at the time. He was present in the bedroom next to Mr. J.T.'s room when the incident occurred with O.S. Mr. A.J. recalled that O.S. was with him and S. in S.'s room and O.S. went into Mr. J.T.'s room for 10 or 15 minutes. He could hear Mr. J.T. talking to her but she seemed fine when she returned contrary to O.S.'s account they she was visibly upset and Mr. A.J. asked her whether she was alright and what happened to her in the room. He agreed, however, that he was hanging out in the bedroom with his girlfriend playing on his phone on an uneventful afternoon. He also agreed that he wasn't really paying attention to how O.S. was acting while she was in the bedroom.
79Apart from a few very specific details about what he and O.S. were doing on that Saturday, he had no recollection of anything else he did that week leading into that weekend. He couldn't even recall if he was at his girlfriend's house during the week or the Friday night. He agreed that he was at the T. household almost every weekend to be with his girlfriend. He didn't know that there was going to be any reason to recall this one visit. Nevertheless, Mr. A.J. was asked to confirm that, on that specific seemingly unimportant Saturday, they went to the camel races and they went berry picking. Mr. A.J.'s recollections of most of what was going on that week and that Saturday were vague at best yet he purported to be able to specifically recall the order of who went down the stairs first and last when they were called down for dinner. In contrast, during cross-examination, he was asked about important details like who was present when O.S. was in S.'s bedroom and he couldn't recall if S. was in the bedroom the whole time. He agreed that it was possible that she left the bedroom. It was a chaotic house full of kids and he was there to see his girlfriend. It was incredulous that he could recall who went down the stairs first and last that afternoon and, more importantly, his evidence 14 months later contradicted Mr. J.T.'s account to the police that was given within weeks of the incident.
80Mr. A.J. also claimed to be a witness to the berry pancake incident because he was standing around the kitchen with S. for about 45 minutes to an hour while the adults were talking with L.S. However, he testified that Ms. M.S. was not in the kitchen during the conversation with L.S. If he is correct, then Ms. M.S.'s evidence about what she saw and heard in the kitchen is not true. Ms. M.S. advised that she was present with A.B. and Mr. J.T. when L.S. was seated at the table in the kitchen. Ms. A.B. indicated that the adults were present and S. and A.J. were outside. L.S. thought that S. was present. The evidence of the witnesses on this issue was externally inconsistent with each other. I do not accept that Mr. A.J. was present for close to an hour in the kitchen, if he was present at all, while L.S. spoke with her friends about G..
81While Mr. A.J. purported to be able to recall very specific details about events that occurred on Saturday July 16th, he had no recollection of how much time had passed before he realised that the details of that one Saturday in the summer were important to remember. It could have been weeks or even months before he realized it was important to remember the details of that day.
82In addition, his evidence conflicted significantly with the other defence witnesses about their mutual discussions about the events. Initially, he agreed that he had some conversation with his girlfriend's mother, Ms. A.B., about the situation. He denied, however, that he ever talked to Ms. A.B. or Ms. M.S. or anybody else for that matter about what happened that day or what he remembered about what happened. He was asked a number of times during cross-examination if he discussed his recollections with anyone or whether they discussed their recollections with him and he said no. Near the end of his evidence, he went so far as to say that the topic hadn't really come up in their conversations. Both Ms. M.S. and Ms. A.B. confirmed that they discussed the events of that day with him and Ms. M.S. mentioned that she "reminded him" of certain things. Ms. A.B. was very clear that they had all documented their recollections and she encouraged A.J. and S. to document their observations but Mr. A.J. said that he never wrote anything down and he was not asked to write anything down.
83Mr. A.J. presented as a highly suggestible witness who not was being truthful about speaking to the other adults in the house about his "recollections" and he was unable to explain why he had no other recollections of what happened that week but he claimed to have a vivid recollection of who went down a flight of stairs and in what order on an uneventful afternoon. Mr. A.J. was neither a credible witness nor a reliable historian.
C. Legal Analysis
i. Burden of Proof
84It is important to start from the fundamental premise that a criminal trial is not a credibility contest. This Court must not choose between competing accounts and decide which one is more credible or compelling. The burden of proof rests solely on the Crown. The only issue to be decided in this case is whether the Crown has proven beyond a reasonable doubt that Mr. J.T. sexually assaulted and sexually interfered with O.S. In order to make this determination, this Court must consider the credibility and reliability of the witnesses who testified during the course of the trial.
85When considering the evidence in a trial, it is important to distinguish between the concepts of credibility and reliability because they are different. As the Ontario Court of Appeal explained in R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214 (Ont.C.A.):
41 Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness' ability to accurately:
i. observe; ii. recall; and iii. recount
events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence
86While a witness may not be credible or reliable with respect to certain aspects of their account that does not mean inexorably that a Court cannot accept other parts of that witness' evidence. A Trial Judge is entitled to believe all, some or none of a witness' evidence. The fact that a trier may reject parts of a complainant's evidence does not make it unreasonable to accept other parts of her evidence. Please see R. v. A.W.B., 2015 ONCA 185, [2015] O.J. No. 1407 at paras. 22 and 23 (Ont.C.A.)
ii. W.D. Analysis and the Defence Evidence
87Applying these concepts within the W.D. framework to the facts in this case, the Court must assess the evidence of each witness and the evidence as a whole. First, regarding the defence evidence, the Court must consider whether the evidence called on behalf of the accused is to be believed. Secondly, if the evidence called on behalf of the accused is not believed, the Court must go on to consider whether the defence evidence raises a reasonable doubt. Finally, even if the evidence presented on behalf of Mr. J.T. is not believed and it does not raise a reasonable doubt, the Court must go on to consider, based on the evidence that is accepted, whether the Crown has proven that Mr. J.T.'s is guilty of each of the charges beyond a reasonable doubt.
88As noted during the review of the defence evidence, I found that Ms. M.S. was a biased witness whose recollections appeared influenced by her desire to demonstrate that O.S. was not telling the truth. Similarly, I found Mr. A.J. was not a credible or reliable witness. In contrast, Ms. A.B. presented as someone who was trying to honestly relate her recollections of that day. Nevertheless, I find that her recollection of how O.S. acted before she left the house has been impacted by the passage of time, her discussions with the other witnesses and her dependence on Mr. J.T.. I believe that she was honestly trying to relate her recollections but her account about O.S.'s conduct before she left the house was unreliable.
89One of the most contentious issues during the trial was O.S.'s demeanour before she left the house. The defence witnesses were called as a means to raise a reasonable doubt about whether O.S. was actually assaulted by Mr. J.T. because he wasn't behind her on the stairs (Mr. J.T. admitted to police that he was behind her more than a year ago) and because of the way that she acted before she left the house. Ms. M.S. said that O.S. went berry picking before dinner was being prepared and Ms. A.B. said that they returned with berries before dinner as well. Accordingly, the berry picking happened before the incident with Mr. J.T. in the upstairs bedroom. After she went berry picking, I accept that O.S. was excited that she would be having pancakes with berries for breakfast the next morning. I accept that O.S. expressed, at some time before the incident happened with Mr. J.T., that she wanted to stay overnight again so she could have a treat. I also accept that there was some discussion about berries and pancakes with L.S. when she arrived at the house and that O.S. appeared to be upset or out of sorts before she left the home. I do not accept, however, the defence witnesses' accounts that O.S. said that she did not want to leave that night after her mother arrived at the house.
90Ms. M.S. has a significant hearing impairment which would have made it very difficult for her to hear what was going on between O.S. and L.S. before she left that house. Ms. A.B.'s account was exaggerated compared to Ms. M.S.'s version. In addition, within minutes of being away from the home and in the safety of her mother's car, O.S. disclosed that something bad happened to her and it was evident that she did not want to return to that home. I find that Ms. M.S. was mistaken about why O.S. was upset before she left and that the collective combining of memories amongst the defence witnesses as well as their partiality contributed to a mistaken interpretation of O.S.'s conduct before she left that house.
91In light of Mr. J.T.'s admissions and my findings about the credibility and/or reliability of the defence witnesses, I do not believe the defence evidence nor does it raise a reasonable doubt. I do not find that any of the defence witnesses were helpful nor do they assist in any significant respect with an assessment of the credibility or reliability of the complainant's account.
iii. Child Witnesses and the Crown's Case
92While the defence evidence has been rejected and it does not raise a reasonable doubt, that does not end the Court's inquiry. The Court must still consider whether the Crown has proven the accused's guilt beyond a reasonable doubt based on the evidence that is accepted. The Court must assess the credibility and reliability of the Crown's evidence including Mr. J.T.'s recorded denials that he sexually assaulted O.S.
93It is trite law that the evidence of any witness must be considered in the context of the applicable guiding legal principles particularly in cases that involve allegations of child abuse. Every person giving evidence in court, of whatever age, is an individual whose credibility and evidence must be assessed by reference to criteria appropriate to his or her mental development, understanding and ability to communicate. Please see: R. v. W.(R.), [1992] S.C.J. No. 56 at para. 26 (S.C.C.)
94The impact of any flaws in a witness' evidence on a Court's assessment of the credibility of that witness and the reliability of their account may depend on a myriad of factors including the age of the witness when the event occurred. The Court of Appeal in H.C. cautioned that:
42 Credibility requires a careful assessment, against a standard of proof that is common to young and old alike. But the standard of the "reasonable adult" is not necessarily apt for assessing the credibility of young children. Flaws, such as contradictions, in the testimony of a child may not toll so heavily against credibility and reliability as equivalent flaws in the testimony of an adult.
And further:
55 The assessment of credibility may not be a purely intellectual exercise. Myriad factors are involved. Some factors may defy verbalization.
95Over the past 3 decades, there have been a multitude of decisions outlining the special considerations that a Court must be guided by when assessing the reliability and credibility of the evidence of children. Please see: R. v. W.(R.), [1992] S.C.J. No. 56 at paras. 24 to 29 (S.C.C.); R. v. B.(G.), [1990] 2 S.C.J. No. 58 (S.C.C.); R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214 (Ont.C.A.)
96Justice Wilson, writing for the majority of the Supreme Court of Canada in R. v. B.G. at paragraphs 47 and 48, explained:
While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration and I believe this is a desirable standard. [Emphasis mine]
97In this case, there were some minor inconsistencies in O.S.'s evidence about peripheral details like what was happening on the day that this incident occurred and who was present the house. The Court must consider that she was 10 years old when she experienced this traumatic event and there was a lot of other things going on that day. As the Supreme Court of Canada noted in R. v. W.(R.) at paragraph 26:
It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards -- to do so would be to create a new stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.
98This case law, however, cannot be interpreted to mean that any inconsistencies in a witness' account of what happened to them as a child are irrelevant. In R. v. A.M., 2014 ONCA 769, [2014] O.J. No. 5241 at paragraphs 8 to 17, the Ontario Court of Appeal reviewed all of these decisions and summarized the law as follows:
First, every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding and ability to communicate: R. v. W. (R.), [1992] 2 S.C.R. 122, [1992] S.C.J. No. 56, at p. 134 S.C.R.
Second, no inflexible rules mandate when a witness' evidence should be evaluated according to "adult" or "child" standards. Indeed, in its provisions regarding testimonial capacity, the Canada Evidence Act, R.S.C., 1985, c. C-5 eschews any reference to "adult" or "child", preferring the terms "14 years or older" and "under 14 years of age". An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children's evidence: W. (R.), at p. 134 S.C.R.
Third, despite this flexibility, there are some guiding principles. Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: W. (R.), at p. 134 S.C.R. See, also, R. v. Kendall, [1962] S.C.R. 469, [1962] S.C.J. No. 27.
Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.), [1994] O.J. No. 2086, 93 C.C.C. (3d) 347 (C.A.), at p. 354 C.C.C., leave to appeal to S.C.C. refused [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.
Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354 C.C.C.
99For example, inconsistencies in a witness' account about the number of times that they were abused may be a considered a peripheral detail in certain circumstances. The Ontario Court of Appeal in R. v. D.H., 2016 ONCA 569, [2016] O.J. No. 3815 held that:
50 Another issue that the trial judge labeled as peripheral was the complainant's inconsistencies on the number of times she was abused by the appellant. In R. v. H.S.B., 2008 SCC 52, [2008] 3 SCR 32, at paras. 11, 14-15, the Supreme Court allowed that a trial judge may treat this issue as peripheral when assessing an adult witness's credibility in the context of remembering events from childhood.
However the Court went on to state:
53 While this analysis follows the Supreme Court jurisprudence in assessing the evidence from the perspective of an adult recalling terrible events from her past, it takes no account of the complainant's inconsistency in recounting the events to the police as an adult, then to the court the next year, going from abuse occurring 10 times to possibly 120 times, and the effect of this inconsistency on the credibility and reliability of her account in her evidence. As this court stated in M. (A.), at para. 12, "one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions."
100While some inconsistencies in a witness' account may be explainable because of their age or they are inconsequential details, significant inconsistencies in a witness' account cannot be ignored. In R. v. M.M.C., [2014] O.J. No. 1919, the Court of Appeal reviewed a number of frailties with a child witness' account and concluded:
52 The evidence about his penis, however, is not a detail of the "when and where" of the assault, nor is this a contradiction; it is about the nature of the assault itself. It is the kind of inconsistency that should engender caution as to the reliability of the witness, even a child witness. While the trial judge says that she does not need corroboration evidence to rely on and believe J.E.-J.'s testimony, as I said earlier, I think it was prudent in these circumstances to search for some.
Please also see: R. v. D.H., 2016 ONCA 569, [2016] O.J. No. 3815 (Ont.C.A.)
101When considering whether an inconsistency is inconsequential, explainable or significant, it is essential to keep in mind the perspective of the person experiencing a traumatic event. As Justice McLaughlin noted at para. 29 in R. v. W.(R.):
The Court of Appeal next referred to the fact that the evidence of the younger children was fraught with inaccuracy. This is true, particularly with respect to B.W.'s evidence. Some of the inconsistencies are minor, for example an error on the distance from a van to a ball game many years ago. Others are more significant, relating to the sleeping arrangements of the three children, the location of bedrooms in the house and possibly the respondent's nighttime attire. While it was the proper task of the Court of Appeal to consider such inconsistencies, one finds no mention of the fact that the trial judge was alive to them and resolved [page136] them to his satisfaction in his reasons for judgment, nor of the fact that many of the inconsistencies may be explained by reference to the fact that a young child might not be paying particular attention to sleeping arrangements or clothing or that the children had lived in a variety of different arrangements, which might well have given rise to confusion on such details.
iv. Findings of Fact About O.S.'s Account
102O.S. related a simple straight forward account about being touched inappropriately by an adult who she trusted and cared for at a place where she loved to visit. Counsel pointed to a number of minor inconsistencies in O.S.'s evidence about peripheral details about events that preceded this incident, who was present in the house and what happened immediately after the incident. None of these inconsistencies have negatively impacted this Court's assessment of O.S.'s credibility. It is entirely understandable that a young child who was having a nearly week-long visit of seemingly fun activities in a house full of kids may not recall what fun events occurred during her visit before a very upsetting incident. O.S. also forgot what she wrote in her note about pushing Mr. J.T. after he touched her. Her statement and her evidence was focussed on what Mr. J.T. did to her on that day. She was completely consistent and unshaken in her account of what happened to her at the hands of Mr. J.T., the circumstances of the incident and what he said to her after he touched her. She was also consistent that after he touched her in his bedroom and she was upset by this, he touched her again at the top of the stairs when they were called down for dinner.
103By all accounts, both Crown and defence, up until this incident, O.S. really liked Mr. J.T. and she had a very positive relationship with him. Furthermore, apart from this incident, she was having a wonderful visit and enjoying the company of everyone in the household. O.S. had no motive to lie about the manner in which she was touched by Mr. J.T.. Quite the contrary, by disclosing this incident, she knew that she would not be able to return to the T. home and continue to enjoy this fun summer time getaway. While there is no onus on a Defendant to prove that the complainant had a motive to lie, the absence of a motive to lie is a factor that this Court may consider when assessing O.S.'s credibility. As the Ontario Court of Appeal explained in R. v. W.B., [2000] O.J. No. 2184 at paras 120 and 121:
Juries are told to use their common sense and combined life experience in assessing credibility. It is difficult to think of a factor which, as a matter of common sense and life experience, would be more germane to a witness' credibility than the existence of a motive to fabricate evidence. Similarly, the absence of any reason to make a false allegation is a factor which juries, using their common sense, will and should consider in assessing a witness' credibility.
What must be avoided in instructing a jury is any suggestion that the accused has an onus to demonstrate that a complainant has a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive, or finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth. The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility.
104While Mr. J.T. made wild claims of a conspiracy against him during his statement to police, Ms. M.S. and Ms. A.B. testified that they did not know about any conflicts at that time between L.S. and G. and them. In addition, Mr. J.T. unwittingly corroborated significant aspects of O.S.'s account. I also accept L.S.'s account of her daughter's odd behaviour when she arrived at the house to pick her up and her extremely emotional response to this betrayal of her trust once she was alone with her mother.
105I must consider that, even though Mr. J.T. confirmed that he touched O.S.'s "boob" and he tickled her at the top of the stairs, he emphatically denied that he either intentionally sexually interfered with or sexually assaulted O.S. The denial was introduced as a part of the Crown's case. As noted earlier, a Court can believe some, none or all of a witness' evidence. I found O.S. to be both a credible and compelling young witness who was a reliable historian about what Mr. J.T. did to her on that afternoon. In contrast, Mr. J.T. contradicted himself throughout his statement. In the oft-cited decision of R. v. J.J.R.D, [2006] O.J. No. 4749 (C.A.), the Ontario Court of Appeal explained that:
The trial judge's analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant's denial because stacked beside A.D.'s evidence and the evidence concerning the diary, the appellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.
106Mr. J.T.'s denials "stacked up" against O.S.'s unshaken account does not leave this Court with a reasonable doubt. Moreover, unlike the facts in J.J.R.D., there were obvious flaws with Mr. J.T.'s denials of any wrongdoing. In particular, his explanations for how his hand ended up on a 10 year old girl's breast and why he admonished her not to tell anyone were ridiculous and inconsistent.
107Finally, while L.S. may have been mistaken about some of the details of events during the week preceding her observations of her child on the Saturday, she had a lot going on in her life that week. Nevertheless, her observations of her child's conduct once she arrived at the house and shortly after they left was unshaken in cross-examination. In addition, while the defence witness suggested that she was not providing a candid account of why Ms. A.B. drove her to the hospital, I do not find that their opinions of why L.S. needed a ride that first night adversely impacted her credibility in any way. She was in a crisis situation seeking help from a friend to drive her to the hospital. Thereafter, she drove herself back and forth to their home and to the hospital so clearly she had no issues with driving after that first night and she would know whether or not she had insurance on her car.
108In summary, I find that, in the time frame alleged in the information, on July 16th, 2016:
i. Mr. J.T. was tickling O.S. in his bedroom and she was moving around and laughing in response. He lifted the back of her shirt up and she pulled it back down;
ii. He continued tickling her on her stomach and then his hand went up and tickled her higher up and he touched her breasts over her clothes. The contact with her breasts was very short lived and then he stopped tickling her;
iii. After he stopped tickling her, he admonished her not to tell anyone that he had "play'd" with her "boobs". She asked him if he had been playing with her boobs and he stated "yeah, I always got you by these" and fist pumped her breast;
iv. At some point during or just after her breasts were touched, she pushed Mr. J.T. away from her. She left the room, went into the neighbouring bedroom and she was very upset. When they were called down for dinner, she encountered him again in the upstairs hallway. She was visibly upset and picked her up, began tickling her and grabbed her "butt" before they went down the stairs for dinner; and
v. Once her mother arrived at the house that night, she wanted to leave and she did not hug Mr. J.T. or say goodbye when they were leaving the house. Shortly after they left the house, while O.S. was alone with her mother in their car, she came very emotional and confided in her that Mr. J.T. did something bad to her but she was too upset to tell her mother the full account.
109The Crown has proven beyond a reasonable doubt O.S.'s account of how these incidents of physical touching occurred at the hands of Mr. J.T. however that is not sufficient to decide whether or not Mr. J.T. is guilty. The Crown has the burden of proving each of the elements of each of the offences before the Court beyond a reasonable doubt.
v. Physical Elements of the Offence of Sexual Assault and Sexual Interference
110To prove that Mr. J.T. is guilty of sexual assault, the Crown must establish that these acts of touching of O.S. were committed in circumstances of a sexual nature such that the sexual integrity of the victim was violated. Please see R. v. Chase, [1987] S.C.J. No. 57 at para. 11 (S.C.C.) In order to make this determination, the Court must apply an objective test taking into account a number of different factors:
a) The part of the body touched;
b) The nature of the contact;
c) Any words or gestures; and
d) All of the circumstances surrounding the application of force.
111With respect to the charge of sexual interference, the Crown must also prove that Mr. J.T. was in a position of trust or authority towards O.S. or in a relationship of dependency with her at the time of the alleged touching incident. It was admitted that Mr. J.T. and Ms. A.B. were babysitting O.S. and she was 10 year old at that time. Since that is not in issue, I will focus on the physical elements of the offence of sexual assault.
112It is essential to emphasize that the Defendant's subjective state of mind is not determinative of whether or not the Crown has proven the actus reus of the offence of sexual assault. Mr. J.T.'s purpose when he touched O.S. is not an element of the offence, however, it is evidence that can be considered as part of the circumstances surrounding the touching. Similarly, a defendant's sexual gratification is not an element of the offence of sexual assault. Rather, it is another factor that may be considered as part of the overall circumstances of the offence. The absence of any evidence of sexual purpose or sexual gratification does not inexorably negate culpability for sexual assault as long as the Crown has established the physical elements of the offence.
113Considering the following factors; the age of the victim, the nature of their relationship, that he touched her breasts while tickling her, he warned her not to tell anyone that he played with her "boobs", then he touched her breast again while saying that he always got her "by these", she left the room but when he saw her again and realized that she was upset, he tickled her and grabbed her "butt". Viewed objectively, these acts were committed in circumstances of a sexual nature and Mr. J.T.'s conduct violated the sexual integrity of O.S.
vi. The Mental Element of Sexual Assault and Sexual Interference
114Since the Court has found that the Crown has proven the physical elements of the offence of sexual assault and sexual interference beyond reasonable doubt, the next consideration is whether the Crown has proven the required mental elements for each of these offences beyond a reasonable doubt. At this stage in the analysis, the focus shifts to the Defendant's subjective state of mind.
115The offence of sexual assault is a general intent offence. The Crown must prove that the accused intentionally applied force ( the mental element ) to the victim in circumstances of a sexual nature such that the sexual integrity of the victim was violated ( the physical element ). The application of force must be intentional as opposed to accidental. The Crown, however, does not have to prove that Mr. J.T. had an improper, ulterior or sexual purpose when making contact with the complainant. Please see: R. v. Lutoslawski, 2010 ONCA 207, [2010] O.J. No. 1094 (Ont.C.A.) aff'd 2010 SCC 49, [2010] S.C.J. No. 49 and R. v. Ewanchuk. As the Quebec Court of Appeal noted in R. v. Bernier (1997), 119 C.C.C. (3d) 467 (Que.C.A.) aff'd, 124 C.C.C. (3d) 383:
As the evidence of the aggressor's desire for sexual gratification is not an essential element of the offence, to require proof of sexual motivation has the effect of transforming the offence of sexual assault into a specific intent offence. Whether the aggressor's motivation is a desire for sexual pleasure, a desire to inflict suffering on another person, to humiliate or to ridicule the victim, does not change at all the criminal nature of his conduct.
116This Court has accepted that the Crown has proven the physical elements of a sexual assault beyond a reasonable doubt and that O.S. did not consent to the nature of this touching nor was she capable of consenting to sexual touching considering her age. As result, to prove the mental element of sexual assault beyond a reasonable doubt, it is sufficient for the Crown to prove the Mr. J.T.'s actions were voluntary and intentional.
117Mr. J.T.'s counsel submitted that, even if the Court accepts that Mr. J.T. touched O.S.'s breast area while tickling her, the Crown has failed to prove that this contact was intentional. Considering that this was a brief incident while the child was moving around, any contact with any part of her body that interfered with her sexual integrity was minimal at best and/or accidental. In particular, Counsel referred to two cases R. v. E.K., [2016] O.J. No. 4818 (Ont.S.C.J.) and R. v. Rimmer, [2003] A.J. No. 1036 (Alta.C.J.) which had some factual similarities and are persuasive authority to support his submissions.
118I find that neither of these decisions assisted this Court. First, I find that the Court in R. v. Rimmer blurred the distinctions between the objective assessment of the physical elements of the offence and the subjective mental state of the Defendant. As such, it does not accurately represent the current state of the law. In addition, the Court unduly focussed on the purpose of the touching and the subjective intention of the accused with very little consideration of other circumstances like the part of the body touched or whether the sexual integrity of the victim was violated. As a result, I decline to follow this judgement. Secondly, in R. v. E.K., the Court ultimately concluded at para. 40 that "the touching of J.W.'s breast, disturbing as it was to J.W. was likely by accident". It is factually distinguishable from the circumstances of this case.
119Although I have considered all of the cases referred to during submissions, I am guided by the binding legal authority from the Ontario Court of Appeal in the recent decision of R. v. Niemi, [2017] O.J. No. 4905 at para 82 that succinctly summarized the law on this issue as follows:
First, it is helpful to put aside the statements made by Mr. Niemi in which he denies a sex crime and a sexual purpose. Mr. Niemi's denials that this was a sex crime are not determinative. An objective test is used to identify whether an assault violated the sexual integrity of the victim. The base issue is whether, in all of the circumstances, a reasonable observer would conclude that there is a sexual or carnal context to the intentional acts committed by Mr. Niemi, not how Mr. Niemi would characterize them: Chase, at p. 302; R. v. Taylor, 1985 ABCA 51, 19 C.C.C. (3d) 156, at p. 269. While the presence of a sexual intent can inform this objective determination, if the assault by its nature interferes with the sexual integrity of the victim it will be a sexual assault regardless of the intent or purpose of the offender: R. v. V.(K.B.), [1993] 2 S.C.R. 857 (emphasis mine)
120Considering the evidence as a whole in this case, this Court has found that the assault interfered with the sexual integrity of the victim. The complainant was asked if she believed that Mr. J.T. touched her breasts accidentally while tickling her and she emphatically said no. Considering the nature of his admonishment afterwards, warning her not to tell anyone that he played with her "boobs" and then he deliberately touched her again on her breast while saying I always got you by these, I do not accept that this touching occurred by accident. In addition, Mr. J.T. did not claim during his statement that he accidentally touched O.S. while tickling her, he claimed that she leaned over him and her breast somehow coincidentally ended up in his hand, an explanation which I rejected. Mr. J.T.'s actions were voluntary and that he intentionally touched O.S. in the places and manner that she described to the Court. As a result, the Crown has proven beyond a reasonable doubt both the physical and mental elements of sexual assault. Please see for example: R. v. Albadri, [2012] O.J. No. 6050 (Ont.C.J.).
121Unlike sexual assault, the offence of sexual interference is a specific intent offence. The Crown must prove that Mr. J.T. touched O.S. for a "sexual purpose". Mr. J.T.'s actions were intentional, opportunistic and impulsive acts of dominance and aggression that violated the victim's sexual integrity. Please see: R. v. V. (K.B.), [1993] S.C.J. No. 78 (S.C.C.). Nevertheless, considering the complainant's account of how these events unfolded, I am left with a reasonable doubt as to whether the Defendant's subjective motivation for this conduct was for a sexual purpose.
D. Conclusion
122The Crown has proven beyond a reasonable doubt that Mr. J.T. voluntarily and intentionally committed an assault in circumstances of a sexual nature such that O.S.'s sexual integrity was violated by him. The charge of sexual interference, however, requires the Crown to prove that Mr. J.T.'s voluntary and intentional assault on O.S. was for a "sexual purpose". The Crown has not proven this additional element beyond a reasonable doubt. As result, Mr. J.T. is found guilty of the sexual assault and not guilty of the sexual interference.
Released: December 13th, 2017
Signed: Justice Green