Court File and Parties

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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.

ONTARIO COURT OF JUSTICE

DATE: 2022 02 17 COURT FILE No.: Guelph 19/1796

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

R.H.

Before Justice M.K. WENDL

Heard on March 8, 10, 11 and December 6, 2021 Reasons for Decision released on February 17, 2022

Counsel: M. Dolby, for the Provincial Crown D. Doney, for R.H.

WENDL J.:

[1] The accused, R.H., is charged with sexual interference, sexual assault and invitation to sexual touching in relation to M.C., his step-granddaughter. The crux of the allegation is that R.H. made M.C. touch his penis over his clothes.

[2] The bulk of the Crown evidence proceeded by way of a blended trial and voir dire. The voir dire related to the admissibility of M.C.’s statements by way of a Khan application. [1] I ruled two utterances and a 715 statement as admissible. At trial, R.H. testified on his own behalf. Therefore, the Court must determine, in accordance with the principle laid out in W.D., if the Crown has met its burden and proven the case beyond a reasonable doubt.

Law and Analysis

[3] The evidence led by Crown was mostly summarized by my ruling on the Khan application. [2] However, I will reiterate the key pieces of the Crown’s evidence.

[4] The first piece of evidence is an utterance by the complainant made to L.B., M.C.’s maternal grandmother, in February 2019. [3] Back in February 2019, L.B. took M.C. out for dinner. While out at dinner, M.C. uttered, “squishy, squishy your vagina”. L.B. then told M.C. that it was inappropriate to speak that way, to which M.C. replied, “Papa R. [4] in Mount Forrest makes me squishy, squishy his bum”. L.B. testified that she could not remember if M.C. used the word bum or vagina. However, L.B. clarified that M.C. sometimes used bum and vagina interchangeably. Furthermore, when making this utterance M.C. grabbed at herself in the area of her vagina.

[5] L.B., after hearing these utterances, took M.C. to her other grandfather, J.B. J.B and L.B. are the parents of M.C.’s mother. L.B. and J.B. are no longer together. At J.B.’s apartment, L.B. asked M.C. to repeat what she said to J.B., L.B. recorded what was said by M.C. When asked to repeat what she said at the restaurant, M.C. said, “squish my Papa’s gina who lives in Mount Forest”. L.B. then asked why R.H. did that. M.C. replied “because he tells me that”. This is the second utterance which I admitted.

[6] The third piece of evidence is the 715 statement where the following exchange occurred:

J.M. :So I need to know if you, you’ve ever had a touch… M.C.: I need my pop. J.M.: …on this part of your body? M.C: No, I need (unintelligible) J.M: The part of your body that you go to the potty, either the front or the back. M.C: The front. J.M.: The front. Yeah, who touches you on, on your front part? M.C.: No, I touch my grandpa on the front. J.M.: Okay, on the front. And what do you touch his front with? M.C: My hand.

[7] The fourth piece of evidence is a statement by the accused himself. In a conversation with his stepdaughter, R.H. admitted that he hurt M.C., that it happened over the clothes, and she would not remember because of her age. He also texted her and stated “I totally understand and I going to live with this devastation to my heart and sole [sic] knowing I have hurt everyone that I have ever really loved. I will never forget what I have done. I can only pray that time will heal all of you.”

[8] The final piece of evidence is an incident that occurred with L.B.’s partner, T.S., sometime in or around December 2018 or January 2019. M.C. was at L.B. and T.S.’s residence. T.S. was sitting in his chair when M.C. approached him and deliberately pressed down in his penis area. T.S. rebuked her and he remarked that M.C. looked shocked, as though what she did should not warrant such a rebuke.

[9] Since R.H. testified at trial the principles outlined in the W.D. [5] apply.

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[10] In relation to the evidence of R.H. I must draw attention to his in-court evidence, which is exculpatory, and his out of court admission by way of text to his step-daughter, which is inculpatory.

[11] Regarding his in-court testimony, R.H. denied the allegations when testifying at trial. He indicated that he was reading to M.C. on her bed at his residence. They were sitting on the bed and her back was abutted to his chest, leaning against him. She was playing with a toy and hiding the toy under him. As a result, he testified, when looking for the toy, she reached back and brushed his private area. They continued to read and, he alleges, M.C. asked R.H. to close his eyes so she could hide the toy again. R.H. testified that M.C. hid the toy under his knee. She then reached out to grab the toy and reached back, grabbed his genitals and said, “squishy bum.” R.H. then stated that he told her that she should not do that and went back to reading. It is at this point that M.C. apparently reached back for a third time, grabbed R.H.’s genitals again, and said “squishy bum” again. On this third attempt, R.H. testified that his penis became erect. He then told M.C. to go to bed and not to tell her Grandma.

[12] When asked why he admitted to the incident, R.H. indicated he panicked and was trying to push his family away by sending this inculpatory message to his stepdaughter:

It was a panic, it really was. It was I overreacted; I just said things. I - There was just so much going on at that point. I - it was a really irrational thought, it was just an irrational reaction, honestly. Too much pressure, I'm not used to that kind of stuff. Everybody was on me about it. There was the fear of losing everything and everybody. With the reaction I had, I was upset with myself so much so that I didn't feel I should have anything or anybody, so basically by saying I did it I could lose everybody and lose everything and then maybe then – yeah.

[13] On this point under cross-examination, he said the following:

Q. And – and, so, your conversation with V. F. where you say, “I did it,” why would you admit to something that you didn’t do?

A. That - that boils down to this me wanting to commit suicide thing again. I can't do - I'm not one to think of suicide or try to kill myself in any which way, I've got too many people that care about me and love me, so I thought by saying that I did it, it would basically give me no reason to live anymore.

[14] Furthermore, under cross-examination, R.H. said that he told M.C. not to say anything about the incident because he wanted to tell M.C.’s grandmother, his wife, himself. However, he never told his wife about the incident, as he described it, before all the allegations came out.

[15] This denial and explanation for the false admission by R.H. must be assessed within the context of the evidence as a whole. M.C. told her grandmother, L.B., completely unprompted, “squishy, squishy, your vagina.” Then when L.B. told M.C. that was an inappropriate way to talk, she replied, “Papa R. in Mount Forrest makes me squishy, squishy his bum”. L.B. went on the clarify, again, her evidence that M.C. uses bum and vagina interchangeably. These utterances were spontaneous and unprompted by the 4-year-old complainant.

[16] When L.B. asked M.C. to repeat the first utterance to J.B., L.B. did jog the child’s memory only by asking her to repeat the part with the word that sounds like vagina. L.B. recorded then recorded utterance #2. Given what immediately preceded the recorded utterance (utterance #2), namely the spontaneous nature of utterance #1, L.B.’s attempt to jog M.C.’s memory, by having the child specify which part of the conversation at the restaurant she wanted repeated, does not detract from the original statement’s spontaneous nature. In addition, when M.C. was asked why she did that and responded, “because he tells me that”, the question was framed in a non-leading and open-ended manner.

[17] It is also notable that in the 715 statement M.C. actually corrects the interviewer and states that she touches R.H. in the front not that he touches her.

[18] Ultimately, being asked to grab an adult male’s genitals or “squish my Papa’s gina who lives in Mount Forest”… “because, he tells me that” is not in the ordinary purview of a 4-year-old child.

[19] The out-of-court admission through text by the accused, if believed, effectively corroborates M.C.’s allegations that R.H. invited her to touch his genitals. While the admissions do not detail exactly what took place, the admission by R.H. confirms that something occurred, that it occurred over the clothes, that he hurt M.C., and that he will never forget what he has done. Significantly, the fact that R.H. was the aggressor is corroborated by the statement “I will never forget what I have done.”

[20] In considering the in-court evidence of R.H., I struggle to understand why he would tell M.C. not to tell her grandmother or R.H.’s wife. Simply put, if M.C. had done this of her own volition, along with the words “squishy bum”, it is concerning behaviour on the part of a 4-year-old. R.H., a purportedly concerned grandfather figure, asks the 4-year-old not to say anything rather address this concerning behaviour. R.H. blames his erection for the silence and embarrassment, but even on his version of the events, there is nothing that leads me to believe M.C. knew he had an erection or even that she knew what an erection was, which would be the concerning part of the incident from R.H.’s perspective. In addition to that, R.H. never told his wife about the allegations until the police became involved, which also belies his reason for telling M.C. not to say anything.

[21] When considering M.C.’s utterances, the root of it is that she touches R.H. in the area of his genitals because he tells her too. I find that this is not in the ordinary purview of the experience of a 4-year-old child. [6] If the events occurred as R.H. testified, that M.C. just grabbed his genitals and said “squishy bum”, then it is logical that her utterance to L.B. back February 2019 should have been consistent with an accidental and playful touching and her experience not “Papa R. in Mount Forrest makes me squishy, squishy his bum.”

[22] Consequently, I reject R.H.’s in-court testimony and it does not raise a reasonable doubt when considered in the context of the evidence as a whole.

[23] I do, however, accept his admission to his stepdaughter by text message. That admission is coherent and logically consistent with M.C.’s utterances, which I also accept. M.C.’s utterances are initially unprompted, the acts described in-and-of-themselves provide a stamp of reliability, as Justice McLachlin stated in Khan, [7] and she corrects the interviewer in the 715 statement that she is not being touched but that she touches R.H.

[24] As a result, considering the evidence as a whole, the Crown has met their burden of proof and I find R.H. guilty of sexual interference, sexual assault and invitation to sexual touching and invite Kienapple submissions.

Released: February 17th, 2022 Signed: Justice M.K. Wendl

Footnotes

[1] See R. v. R.H., 2021 ONCJ 221 [2] Ibid [3] I note here that R.H., the accused, is married to M.C.’s other or paternal grandmother. [4] Papa R. is R.H. [5] For a detailed discussion of the principles of W.D. applied here see R. v. J.G. 2021 207 ONCJ and R. v. S.S. 2021 ONCJ 430 [6] R. v. Khan, [1990] 2 S.C.R. 531 at para 34 [7] Ibid