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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and
(b) on application made by the victim, 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
Date: May 14, 2019
Court File No.: Hamilton Information No. 17-12076
Between:
Her Majesty the Queen
— and —
P.M.
Before: Justice J.P.P. Fiorucci
Heard on: January 29th and 30th, 2019
Reasons for Judgment released on: May 14th, 2019
Counsel:
- N. Flynn, counsel for the Crown
- P. Craniotis, counsel for the accused P.M.
FIORUCCI J.:
INTRODUCTION
[1] P.M. met T.D. in August of 2016, when T.D. started working at the movie theatre where P.M. worked. P.M. was 28 years old at the time. T.D. was 15 years old. T.D. turned 16 years old on October 20th, 2016.
[2] It is not in dispute that P.M. and T.D. developed a relationship, which became sexual. What is in dispute is whether sexual acts occurred between P.M. and T.D. before her 16th birthday. Mr. M. is charged with the offences of Sexual Interference and Invitation to Sexual Touching between August 15th, 2016 and October 20th, 2016. If sexual acts and the invitation to sexual touching occurred before October 20th, 2016, it is not a defence that T.D. consented to the activities that form the subject-matter of these charges.
[3] Mr. M. is also charged with Criminal Harassment on or about November 19th, 2017. It is alleged that P.M. engaged in conduct that caused T.D. to, reasonably in all of the circumstances, fear for her safety by continued attempts to contact her after she had made it clear that the relationship was over and that any further contact was unwanted.
EVIDENCE
[4] Ms. D. testified that soon after she met Mr. M. and starting working with him at the movie theatre, the two of them added each other as friends on Facebook. She testified that she and Mr. M. had many conversations over Facebook. Mr. M. knew that she was 15 years old because he asked her how old she was in one of these conversations. He also told Ms. D. that he was 28 years old.
[5] According to Ms. D., one night when the two of them were messaging back and forth into the early morning hours, they started talking about sex and relationships. Mr. M. asked her if she was a virgin. When she said that she was, Mr. M. asked her if she would be comfortable losing her virginity to a 28 year old. Ms. D. understood Mr. M. to be referring to himself. Ms. D. testified that she responded by saying she was not sure.
[6] Ms. D. testified that Mr. M. suggested driving her home from work one day. He stated that they could hang out and see how things go. According to Ms. D., although she felt a bit uneasy about this, she did agree to have Mr. M. drive her home and to spend time with him.
[7] Ms. D. testified that during the first week of September 2016, at the beginning of her grade 11 school year, she and Mr. M. had sexual contact for the first time. She was still 15 years of age. This sexual contact happened the first time that they hung out together. Her parents were out of town participating in a running marathon. According to Ms. D., after work, she and Mr. M. walked the trail behind their place of employment, and they kissed.
[8] They went back to Mr. M.'s car. Ms. D. told Mr. M. that nothing could happen because she was on her period. Mr. M. stated that they could still do oral. Ms. D. testified that she performed oral sex on Mr. M. in the car on that first day that they hung out in September of 2016. On this first occasion, Ms. D. told Mr. M. that she felt a little uncomfortable and wanted to stop. Mr. M. said it was okay and that they could try again another day.
[9] Ms. D. testified that the couple continued to Facebook message each other after this first day that they hung out at the trail. Those messages included plans for the next time they were going to hang out.
[10] It became a regular occurrence that Mr. M. would drive Ms. D. home from work and the two of them would have sexual interactions in his car at discreet locations like the trail behind work, empty turnarounds, or parking lots. Ms. D. testified that every time she and Mr. M. hung out at these places, before her 16th birthday, there was sexual contact.
[11] The sexual conduct escalated from the first time. According to Ms. D., the couple attempted sexual intercourse on each occasion but it would be uncomfortable and would hurt Ms. D., so they would stop. There would still be oral sex and kissing on these occasions.
[12] Ms. D. testified that, before her 16th birthday, she and Mr. M. had sexual contact anywhere from three to five or six days a week. Each time involved trying to have sexual intercourse. In her examination-in-chief, Ms. D. was asked whether, prior to her 16th birthday, there was ever full penetration of her vagina by Mr. M.'s penis. She responded that there was full penetration, but it would not last very long, or there would not be any completion before they had to stop. She testified that, for a couple of months, it still hurt. Although there was full penetration, there would be no orgasm by Mr. M.. Those occasions where they had to stop sexual intercourse would usually be followed by oral sex on Mr. M., and Mr. M. having an orgasm.
[13] The relationship continued after T.D's 16th birthday. In June of 2017, Ms. D. broke up with Mr. M. for a week and dated someone else during that week. The relationship between Ms. D. and Mr. M. resumed after that one week break up, and lasted until September of 2017, when Ms. D. again broke up with Mr. M. and made it clear that she did not want further contact from him.
[14] Ms. D. testified about a meeting she had with Mr. M. in his car outside her school in September of 2017. According to Ms. D., during this meeting, although she made it clear to Mr. M. that she wanted to end the relationship, when she tried to get out of the car, Mr. M. grabbed her arm and tried to lock the doors so that they could continue talking. He was very angry at this time.
[15] Ms. D. asked Mr. M. to meet her at her school the following day so that she could return some personal property to him. She asked her father to accompany her that day. When she returned the property to Mr. M., she again told him that the relationship was over and told him that she would phone the police if he continued to message her or contact her.
[16] Mr. M. continued to call and message Ms. D. after that day. Ms. D. blocked Mr. M. on social media accounts, but he would find different social media accounts to contact her on, and he would call her from different phone numbers.
[17] Ms. D. testified about unwanted phone calls and messages she received from Mr. M. in October of 2017, including calls to wish her a Happy Thanksgiving and a happy birthday. Due to the continued unwanted contact from Mr. M., Ms. D. and her parents decided to attend the police station about the situation. Ms. D. provided a statement to the police about the persistent unwanted contact.
[18] On October 20th, 2017, the police spoke with Mr. M. as a result of Ms. D.'s complaint. The police made it clear to Mr. M. that any further contact with Ms. D. could result in consequences, including a criminal charge.
[19] On November 18th, 2017, at approximately 11:30 p.m., Mr. M. called Ms. D.'s phone using his mother's phone. The call was not answered. Ms. D. called the number back because she did not recognize the number. When she recognized Mr. M.'s voice on the other end of the line, she panicked and gave the phone to her manager, who hung up the phone. Mr. M. called back and spoke with one of Ms. D.'s managers who answered the phone and told Mr. M. that he was not to contact Ms. D.
[20] Later that same night, in the early morning hours of November 19th, 2017, Mr. M. tried calling Ms. D. on Facebook at approximately 12:05 a.m.. He also sent Ms. D. two Facebook messages at 12:34 a.m..
[21] Ms. D. went back to the police station to report the continued unwanted contact from Mr. M.. She provided a statement to the police regarding the persistent attempts by Mr. M. to contact her. In the course of providing her statements to the police regarding the unwanted contact, the police learned that the relationship between Ms. D. and Mr. M. had commenced when she was 15 years old. This prompted a separate investigation by the Sexual Assault Unit of the Hamilton Police Service. Ultimately, Mr. M. was charged with the three offences of Criminal Harassment, Sexual Interference and Invitation to Sexual Touching.
[22] Mr. M. testified at the trial. He did not deny that he and Ms. D. had a sexual relationship. However, he testified that the sexual relationship did not start until after her 16th birthday.
[23] According to Mr. M., he and Ms. D. did add each other on Facebook and messaged each other starting at the end of August of 2016. They messaged each other privately on Facebook from the end of August, and throughout September and October of 2016.
[24] Mr. M. agreed that these conversations progressed from innocent conversations about work, family and school to more intimate subjects. According to Mr. M., this progression to more intimate subjects happened very late, near her 16th birthday. Mr. M. agreed that Ms. D. told him that she was a virgin, but he denied that he asked her if she would be comfortable losing her virginity to a 28 year old.
[25] He agreed that the conversations about her virginity and past relationships happened when she was 15 years old, but he denied that he ever asked her to have sex with him when she was 15. According to Mr. M., the intense sexual talks happened after her 16th birthday.
[26] Mr. M. did drive Ms. D. home from work before her 16th birthday, but Mr. M. testified that he and Ms. D. started dating in late October of 2016, after Ms. D.'s 16th birthday. According to Mr. M., the two of them started having sexual relations at the beginning of November, 2016. In cross-examination, Mr. M. testified that the first incident of oral sex on him in his car on the trail behind the movie theatre happened on his second date with Ms. D..
[27] Mr. M. testified about surgery he had on his foot on September 12th, 2016. He took two weeks off from work. When he went back to work after that two weeks, he was on crutches. He testified that he was not mobile for almost three weeks. Although the surgery was on his left foot, not his driving foot, Mr. M. testified in cross-examination that, when he returned to work, he did not drive himself; his brother was giving him rides.
[28] Mr. M. did not deny Ms. D.'s testimony that there were multiple attempts at sexual intercourse which had to be stopped because Ms. D. was experiencing pain. He testified that they both agreed to not use a condom because of these difficulties. Mr. M. also agreed with Ms. D.'s testimony that she would finish him off with oral sex after these failed attempts at sexual intercourse. However, he testified that none of these incidents occurred before her 16th birthday.
[29] Mr. M. did not deny that he contacted Ms. D. after she had told him that she wanted to end the relationship, and that she did not want further communication with him. He acknowledged in cross-examination that he called to wish her a Happy Thanksgiving and happy birthday in October 2017, hoping that she would want to get back together.
[30] Mr. M. testified that, when he contacted Ms. D. for her birthday in October 2017, he got the message that the relationship was over because they argued during the call and she hung up on him.
[31] Mr. M. admitted that he was warned by the police on October 20th, 2017 that further contact with Ms. D. could result in a criminal charge against him.
[32] Mr. M. testified that, on November 18th, 2017, he called Ms. D.'s number from his mother's cell phone but did not recognize it to be Ms. D.'s number. He gave evidence about the communication he had with Ms. D. on November 18th, 2017, and his attempts to contact Ms. D. into the early morning hours of November 19th, 2017. I will review his testimony, including his purported reason for these attempts to contact Ms. D., when I assess his evidence in the analysis below.
ANALYSIS
[33] On the issues of whether P.M. did for a sexual purpose invite T.D. to touch a part of his body, and did for a sexual purpose touch, directly or indirectly T.D., when T.D. was 15 years of age, the Defence submits that the Court should either accept P.M.'s evidence that no such invitation was made, and no sexual contact occurred before T.D.'s 16th birthday, or be left with a reasonable doubt on these issues by P.M.'s evidence. Furthermore, the Defence position is that the Crown has not proven the two sexual offences beyond a reasonable doubt on the evidence presented. The Defence submits that I should reject T.D.'s evidence as not credible, or unreliable.
[34] In relation to the charge of Criminal Harassment, the Defence submits that the Crown has not proven the essential elements of the offence beyond a reasonable doubt. The Defence focused its submissions on whether the Crown had proven beyond a reasonable doubt that Mr. M.'s conduct caused T.D. to fear for her own safety. The Defence submits that, even if Mr. M's conduct caused T.D. to fear for her own safety, that fear was not reasonable in all of the circumstances.
[35] The accused is presumed innocent and that presumption can only be displaced if his guilt is established beyond a reasonable doubt by the Crown. I must instruct myself in accordance with the criminal standard of proof set out by the Supreme Court of Canada in R. v. Lifchus. A reasonable doubt must be based on reason and common sense. It is logically derived from the evidence or absence of evidence. It is not sufficient to believe that the accused is probably guilty or likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so because such a standard of proof is impossibly high.
[36] In this case, P.M. testified. I am required to consider and apply the framework enunciated in R. v. W.(D.), which states that:
(1) If I believe the testimony of the accused, I must find him not guilty;
(2) If I do not believe the accused's evidence, but the evidence leaves me with a reasonable doubt, I must find him not guilty;
(3) Even if the accused's evidence does not leave me with a reasonable doubt, I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused.
[37] I can accept all, some or none of a witness's evidence. I will begin by considering Mr. M.'s evidence. I have carefully reviewed and considered the substance of his evidence. I have concluded that I do not believe him, nor does his evidence leave me in a state of reasonable doubt. I will now explain the reasons for my findings.
[38] Mr. M.'s evidence was implausible on significant points, and did not accord with logic or common sense. I will begin with Mr. M.'s evidence regarding what occurred on November 18th, 2017 and into the early morning hours of November 19th, 2017. I have significant concerns regarding the credibility and reliability of Mr. M.'s account of what occurred on these date. These concerns contribute to my rejection of his testimony that he did not invite Ms. D. to have sexual contact with him prior to her 16th birthday, and that he did not have sexual contact with Ms. D. prior to her 16th birthday.
[39] Mr. M.'s testimony regarding the reason he made the call to T.D.'s phone at 11:30 p.m. on November 18th, 2017 was illogical and confusing. He claimed that he heard his mother's flip phone beeping. When he opened her phone, he saw a text from the provider, Bell, about upgrading the phone plan.
[40] Mr. M. testified that his mother then told him to make sure to delete all the numbers that were not hers "or something like that". Firstly, from this testimony, I had difficulty understanding what task his mother actually entrusted to him, and why she did so. Was Mr. M. to delete phone numbers that he himself did not recognize? And where was Mr. M. looking for these numbers in her phone? In any event, Mr. M.'s claim that he embarked on deleting numbers from his mother's phone at this time made no sense.
[41] His claim that he came across Ms. D.'s number and did not recognize it is incredible. When pressed in cross-examination, Mr. M. admitted that this was the phone number that he had keyed into his mother's phone two times in October of 2017 when he called Ms. D. to wish her a Happy Thanksgiving and a happy birthday. He acknowledged that it was his mother's phone that he used to make those calls because Ms. D. had blocked his phone number.
[42] Mr. M.'s claim that he called the number at 11:30 p.m. to see if it was someone that his mother worked with, or if it was a phone number associated to the French school board that she worked for, was also unbelievable. He went on to testify that he was trying to determine if this was a number he should save in his mother's phone, or whether he should remind his mother that "hey, this is the school that called you, call them back". I reject Mr. M.'s evidence as to the stated purpose of his call. It does not accord with common sense that Mr. M. would make this call at 11:30 p.m. if that was the true reason for the call.
[43] It is more plausible that the real reason for Mr. M.'s call at 11:30 p.m. on November 18th, 2017 was to contact Ms. D., as he had done on two prior occasions from his mother's phone in October of 2017.
[44] Mr. M.'s evidence regarding what happened after the missed call at 11:30 p.m. was also implausible. He testified that, when T.D. called his mother's phone back about 15 minutes later, he recognized that it was T.D.'s number, yet he claimed that he was confused about why she was calling him and why she was crying. This too defies common sense.
[45] In the context of the totality of the evidence, it would have been clear to Mr. M. that Ms. D. called his mother's phone on November 18th because she had seen the missed call. Furthermore, his claim that he did not know why she was crying and that he was concerned for her defies logic. In his own evidence, he acknowledged that on prior occasions T.D. had told him that she wanted no further contact with him, and that the police made it clear to him on October 20th, 2017 that there was to be no further contact. It should have been abundantly clear to Mr. M. at this time why Ms. D. was upset and crying when she recognized his voice.
[46] I reject Mr. M.'s claim that he called her back immediately after the call was disconnected because he was concerned and didn't know if Ms. D. was in trouble. Instead, I find that it was a continuation of Mr. M.'s efforts to contact Ms. D., despite her repeated requests for no further contact. Mr. M. testified that it was clear to him that Ms. D. wanted no further contact when the female voice that answered Mr. M.'s call told him to stop calling Ms. D.. He deleted Ms. D.'s number from his mother's phone.
[47] However, Mr. M. continued to attempt to contact Ms. D. through Facebook. He called her at 12:05 a.m. on Facebook, a call she did not answer. He then sent two messages to Ms. D. on Facebook at 12:34 a.m. on November 19th. Mr. M. testified, "I got the impression that she was trying to communicate with me, in a way". He testified that he got this impression because he saw that Ms. D. had unblocked him on Facebook.
[48] Mr. M.'s testimony that he believed Ms. D. was trying to communicate with him is illogical when considered in the context of everything that had happened up to that point, including Ms. D. crying when she recognized his voice, and the female making it clear, again, that there was to be no further contact. It had not been Ms. D. that had made the first contact with Mr. M.. It was Mr. M. that had called Ms. D.'s number with his mother's cell phone.
[49] Furthermore, Mr. M. did not give his evidence in a balanced way when he was questioned about his contact with the police on October 20th, 2017. In his evidence in-chief, Mr. M. testified that the police warned him to stay away from Ms. D. because the police did not want to "come back and start more problems". In cross-examination, when Crown counsel suggested to Mr. M. that the police warned him that he was in jeopardy of being charged with Criminal Harassment if he did not cease contacting Ms. D., Mr. M. evaded the question twice by answering "I was told that there would be more problems", and "I was told that there would be more problems if I kept continuing communication with her and I agreed". When pressed further by Crown counsel, Mr. M. ultimately acknowledged that the police did indeed make it clear that those consequences would be of a criminal nature.
[50] The manner in which Mr. M. gave his evidence regarding the police visit led me to believe that he was answering strategically, rather than being forthright and acknowledging from the outset that the police had warned him about the potential for criminal consequences.
[51] When Mr. M. testified in his examination-in-chief about the Facebook messaging with Ms. D. throughout August, September and October of 2016, he portrayed the conversations as being about school, work and family, and developing a friendship with Ms. D.. In cross-examination, when Mr. M. was asked whether the Facebook messages progressed from non-sexual innocent topics to sexual topics, before Ms. D. was 16, he responded that "there was non-sexual topics".
[52] Ultimately, when pressed further by Crown counsel, Mr. M. acknowledged that topics such as Ms. D.'s virginity, Ms. D.'s past relationships, and Ms. D. wanting to try sex but being worried, were discussed prior to her 16th birthday. I find that Mr. M. was reluctant to give evidence regarding these sexual discussions he had with Ms. D. prior to her 16th birthday. When he eventually acknowledged that these discussions did occur, Mr. M. attempted to minimize those discussions. He testified that the more intimate subjects happened "very late, near her birthday". Again, I find that Mr. M. did not give his evidence on this topic in a balanced way.
[53] Based on the concerns I have identified with respect to P.M.'s credibility as a witness, and the reliability of his testimony, I reject his testimony that he did not invite Ms. D. to have sexual contact with him, and that he did not have sexual contact with her, prior to her 16th birthday. I have concluded that I do not believe Mr. M.'s evidence, nor does his evidence leave me in a state of reasonable doubt.
[54] Mere disbelief of the accused's evidence does not satisfy the Crown's burden of persuasion. I cannot use disbelief of the accused's evidence as proof of guilt. I must now ask myself whether, on the basis of the evidence which I do accept, the Crown has proven that the accused is guilty of the offences charged beyond a reasonable doubt.
[55] There are certain facts in this case which are not in dispute. Mr. M. and Ms. D. met each other in August of 2016, before Ms. D. turned 16 years of age. They added each other as Facebook friends in August of 2016. They communicated privately on Facebook prior to her 16th birthday. The topics of those discussions included Ms. D.'s virginity and past relationships.
[56] The relationship progressed to a dating relationship which involved sexual contact. Ms. D. ended the relationship with Mr. M. in September of 2017. At that time, she returned his property and told him that she wanted no further contact with him. She blocked him on social media, including Facebook and blocked him from sending further text messages to her.
[57] Despite this, and Ms. D.'s clearly stated desire for no more contact, Mr. M. was not convinced that the relationship was over. He contacted Ms. D. on two occasions in October 2017 to wish her Happy Thanksgiving and a happy birthday. He was holding out hope that Ms. D. would reconcile with him. On both of these occasions in October of 2017, Ms. D. told Mr. M. to stop calling her and that the relationship was over.
[58] Ms. D. reported her concerns about continued contact from Mr. M. to the police. The police visited Mr. M. on October 20th, 2017, the day after the birthday call. During this visit, the police reiterated Ms. D.'s desire that Mr. M. cease his attempts to contact her. The police also warned Mr. M. that further attempts to contact Ms. D. could have criminal consequences.
[59] Despite this visit from the police, Mr. M. called Ms. D. from his mother's cell phone on November 18th, 2017. There was contact between Mr. M. and Ms. D. on November 18th, 2017. Ms. D. was upset and crying when she recognized Mr. M.'s voice on the phone. The female person who answered Ms. D.'s phone when Mr. M. called back advised him that he was to have no further contact with Ms. D.. There were further attempts by Mr. M. to contact Ms. D. that night and into the early morning hours of November 19th, 2017.
[60] Ms. D. gave her evidence in a balanced way. She testified that, after receiving the further contact in November of 2017, she went to the police for the second time regarding unwanted contact from Mr. M.. She did so because she was concerned that Mr. M. continued to contact her even though he was warned by police on October 20th, 2017 not to do so. I accept Ms. D.'s evidence that she feared for her safety based on the history of her relationship with Mr. M.. Her fear was reasonable in the circumstances.
[61] When she went to the police in the early morning hours of November 19th, 2017, Ms. D. provided a statement regarding the harassment investigation. In the process of Ms. D. communicating the details of Mr. M.'s continued unwanted contact to P.C. Darryl Pullen, the officer learned that Ms. D.'s relationship with Mr. M. started when she was 15 years old.
[62] P.C. Pullen suspended the taking of Ms. D.'s statement so that he could speak with his Sergeant about this raising a potential issue that should be investigated by the Sexual Assault Unit. P.C. Pullen's evidence regarding the reason for suspending the taking of Ms. D.'s statement is consistent with Ms. D.'s evidence that, before P.C. Pullen returned to the room to complete her statement, a Sergeant spoke with her about the concerns the police had and how they should maybe "talk about the sexual aspect of this".
[63] When P.C. Pullen returned to the room on November 19th, 2017, Ms. D. completed her statement regarding the harassment investigation. In cross-examination, the Defence suggested to Ms. D. that, before P.C. Pullen returned to complete her statement, someone told her that she needed to tell the police more for a charge to be laid against Mr. M., and for him to be arrested. The Defence suggested that this is what prompted Ms. D. to tell P.C. Pullen about the incident in September of 2017 when she felt unsafe in the car with Mr. M.. She told P.C. Pullen that she felt unsafe because Mr. M. was angry about the break up. She thought he was not going to let her leave and was going to take her away.
[64] The Defence also suggested that Ms. D. was embellishing her evidence at trial, by testifying that she was afraid Mr. M. might show up and kidnap her or try to harm her because of the September 2017 car incident. Defence counsel pointed out to Ms. D. that her statement to P.C. Pullen on November 19th did not include the details of Mr. M. grabbing her arm in the car and locking the doors of the car.
[65] I reviewed the evidence of Ms. D. in its entirety regarding this issue, including her explanation of the circumstances under which she gave her statement to P.C. Pullen; in the early morning hours of November 19th, 2017, after having quit her job, and being extremely upset about Mr. M.'s persistent attempts to contact her.
[66] I find that Ms. D. did her best to communicate the fear she had of Mr. M. at that point in time, and the basis for her fear, including the car incident in September of 2017. Her statement to P.C. Pullen that she felt unsafe in the car because of Mr. M.'s anger over the relationship being over, and because she thought he was going to take her away and not let her leave, is consistent with the further details she provided in her trial testimony about why she thought he might take her away and not let her leave—the grabbing of her arm and the locking of the car doors.
[67] The Defence submits that the Crown has not proven the elements of the offence of Criminal Harassment beyond a reasonable doubt. More particularly, the Defence submits that, even if Ms. D. had a subjective fear for her own safety because of Mr. M.'s conduct, her fear was not reasonable in the circumstances. The Defence points to the fact that none of the calls or Facebook messages on November 18th and 19th, 2017 were of a threatening nature.
[68] I find that the Crown has established beyond a reasonable doubt each of the elements of the offence of Criminal Harassment. Mr. M.'s conduct on November 18th and 19th, 2017 has to be assessed in the context of the history of the relationship between Ms. D. and Mr. M. that preceded that date.
[69] I accept Ms. D.'s evidence that when she broke up with Mr. M. in June of 2017, Mr. M. called her continuously and found ways to communicate with her on social media even if she blocked his number. This is consistent with Mr. M.'s own evidence in cross-examination that he continued contacting her during this time trying to get her back. When Mr. M. made things uncomfortable at work for Ms. D. and her friends, Ms. D. agreed to reconcile with him. As she described, she felt "extremely overwhelmed by the whole thing", including his continued efforts to use other outlets to try to contact her.
[70] I accept Ms. D.'s evidence that when she again broke up with Mr. M., in September of 2017, Mr. M. was extremely upset and angry. The incident that occurred in the car, with Mr. M. grabbing her arm and locking the car doors, gave Ms. D. a reasonable basis to fear for her safety as Mr. M. was again not taking the break-up of their relationship well. The fact that she asked her father to attend for the return of Mr. M.'s property, which Mr. M. does not dispute, is a further indication that Ms. D. was concerned about further contact with Mr. M.
[71] Mr. M. does not dispute that Ms. D. made it crystal clear to him that she wanted no further contact with him after September of 2017. Yet he admitted that he continued to contact her in October 2017, and found other means to do so because she had blocked his numbers. He admittedly did so to try to convince Ms. D. to reconcile with him, as he had done in June of 2017.
[72] This persistent obsessive and controlling behaviour, coupled with the car incident in September of 2017, would no doubt cause Ms. D. to be fearful of Mr. M.. It prompted her to provide a statement to the police in October, after the birthday call. Ms. D. testified that she felt a lot safer after the police warned Mr. M. in October 2017 not to have any further contact with her.
[73] It is not in dispute that when Ms. D. recognized Mr. M.'s voice on the phone on November 18th, 2017, she immediately became upset and was crying. Ms. D. testified that she was afraid because Mr. M. continued to ignore her requests for no further contact, even after the police had spoken with him. This makes complete sense in the context of the totality of the evidence, including Mr. M.'s obsessive and controlling behaviour that preceded the calls and messages on November 18th and 19th, 2017.
[74] Ms. D.'s evidence regarding her sexual relationship with Mr. M. was also given in a balanced way. Firstly, she gave clear, consistent and cogent evidence regarding the first occurrence of sexual activity with Mr. M. in the first week of September 2016. She testified that she was able to recall that this first incident occurred during that week because she had just started her grade 11 year in high school and her parents were away for a running marathon.
[75] Ms. D. did not embellish the details of the sexual contact on this first occasion, nor did she give her evidence in a way that demonstrated any animus toward Mr. M.. Regarding the first occurrence of oral sex in Mr. M.'s car on the trail behind the movie theatre, Ms. D. testified that the oral sex just stopped when she told Mr. M. that she felt a little uncomfortable and wanted to stop. According to Ms. D., Mr. M. said okay and that they could just try again another day.
[76] Ms. D. testified regarding details which were uncomfortable for her to mention. For instance, she stated that oral sex happened on the first occasion because she told Mr. M. that she was on her period. The Defence pointed out to Ms. D. that she did not mention her period to the police in her statement on November 25th. The Defence submits that this affects the credibility of Ms. D.'s account. I disagree. I accept Ms. D.'s evidence that she was timid and shy when she was speaking with the officer, a stranger, on November 25th about a sexual relationship she had with a man who was 13 years older than her. The fact that she left out the detail of being on her period at the time does not detract from Ms. D.'s credibility.
[77] Ms. D. readily made concessions in cross-examination when it was appropriate to do so. For example, Ms. D. agreed with Defence counsel's suggestion that Mr. M.'s position as a supervisor at the movie theatre did not give him any authority over when she had to work, or when she could not work.
[78] Ms. D. immediately conceded that Mr. M. had surgery at some point when she first met him, although she could not remember the exact date of the surgery being September 12th, 2016. She agreed with Defence counsel's suggestion that the surgery was on his foot, and that he was potentially off work about a week and a half to two weeks. Again, when she gave her evidence on this point, she did not attempt to control the narrative, but rather did her best to recall past events and give truthful evidence.
[79] Ms. D. conceded that, in that time period of his surgery, Mr. M. was bedridden and would not have been able to hang out with her for a certain period of time but she could not recall how much time. She then went on to describe how Mr. M. still went out with her over that period of time with crutches.
[80] The Defence made much of the fact that this was inconsistent with Ms. D.'s earlier evidence that she and Mr. M. hung out every single week from that first sexual encounter in September 2016 until her 16th birthday on October 20th, 2016. However, Ms. D. gave clear and cogent evidence that, after that first sexual encounter in September 2016, and prior to her 16th birthday, there were repeated failed attempts at sexual intercourse which were usually followed by her performing oral sex on Mr. M..
[81] She testified that she believed sexual intercourse was successfully completed on her 16th birthday, meaning successfully completed with an orgasm. However, this was preceded by the multiple failed attempts to have sexual intercourse prior to her 16th birthday.
[82] Defence counsel cross-examined Ms. D. about the fact that she was unable to produce the Facebook messages wherein she and Mr. M. discussed that she was 15 years old and Mr. M. asked her whether she would be comfortable losing her virginity to a 28 year old. The Defence suggests that the failure to produce these messages, or to tell the detective who interviewed her on November 25th that she would be unable to produce the messages because Mr. M. told her to delete them, detracts from Ms. D.'s credibility. The Defence pointed out that, on November 25th, Ms. D. told the detective that she had those messages.
[83] Again, I reviewed Ms. D.'s evidence in its totality regarding this issue. I accept her evidence that when the detective asked her on November 25th whether she had these messages, she genuinely believed that she did, and only remembered that Mr. M. made her delete the messages when she scrolled through her phone searching for them.
[84] I accept Ms. D.'s evidence that the sexual conversations she and Mr. M. had on Facebook during the months leading up to her 16th birthday included the topic of her virginity. I also accept her evidence that Mr. M. asked her whether she would feel comfortable losing her virginity to a 28 year old. It makes sense that this conversation would have preceded Ms. D. telling Mr. M. in the car during that first sexual encounter in September of 2016 that nothing could happen because she was on her period.
CONCLUSION
[85] On the totality of the evidence, I find that the Crown has proven beyond a reasonable doubt that Mr. M. is guilty of the offences charged. I find P.M. guilty of the offences of Criminal Harassment, Sexual Interference, and Invitation to Sexual Touching.
Released: May 14th, 2019
Signed: Justice J.P.P. Fiorucci