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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2024 01 23 COURT FILE No.: Hamilton 21-9828
BETWEEN:
HIS MAJESTY THE KING
— AND —
S.C.
Before Justice J.P.P. Fiorucci Heard on September 11 and 12, 2023 Reasons for Judgment released on January 23, 2024
Counsel: Patrick Harris....................................................................................... counsel for the Crown Kaley Hepburn........................................................................ counsel for the accused S.C.
FIORUCCI J.:
INTRODUCTION
[1] The accused, S.C., was charged with sexual interference and sexual assault in relation to his stepdaughter, M.C. The offences are alleged to have occurred between January 1, 2019 and July 31, 2020 when M.C. was between 14 and 15 years old. The Crown proceeded by indictment. S.C. elected to be tried in the Ontario Court of Justice and entered not guilty pleas to both charges.
[2] M.C. was 19 years old when she testified at the trial. She was the lone Crown witness. S.C. testified in his own defence. He was the only defence witness. I must determine whether the Crown has met its burden of proving the charges beyond a reasonable doubt.
THE EVIDENCE
[3] The parties agreed that the two charges on the information relate to two separate allegations of sexual misconduct. The sexual interference charge (Count 1) relates to incidents M.C. says occurred when S.C. took her out in his vehicle to practice driving. The sexual assault charge (Count 2) pertains to an incident that is alleged by M.C. to have occurred in the basement of the family home, in or around the same time period as the driving incidents.
[4] The charges read as follows:
Count 1: S.C., on or between the 1 st day of January, 2019 and the 31 st day of July, 2020, at the City of Hamilton, in the said region, did for a sexual purpose touch, directly or indirectly M.C., a person under the age of sixteen with a part of his body, to wit: his penis, contrary to the provisions of Section 151 of the Criminal Code of Canada.
Count 2: S.C., on or between the 1 st day of January, 2019 and the 31 st day of July, 2020, at the City of Hamilton, in the said region, did sexually assault M.C. with a part of his body, to wit: his hand, contrary to the provisions of Section 271 of the Criminal Code of Canada. [1]
[5] M.C. testified that S.C. raised her since she was one year old and that she used to call him dad. According to S.C., M.C. came into his life in 2006, when she was almost two years old, and he adopted her in 2009 or 2010.
Count 1: Sexual Interference (the “Driving Incidents”)
[6] M.C. testified that, on multiple occasions, S.C. took her out alone in his Volkswagen motor vehicle to practice her driving. M.C. said that, on each of these occasions, S.C. was sitting in the driver’s seat, and she was sitting on his lap. She described that her legs were on top of his legs. M.C. testified that during each of these driving sessions, S.C. would have an erection when she was sitting on his lap.
[7] M.C. provided details about the driving, saying that S.C. would drive out of the city to the back roads. When there was no traffic, he would pull over to the side of the road and she would slide over the centre console to get onto his lap. M.C. would have her hands on the wheel and control the steering and signalling. At first, S.C. had his feet on the pedals until he said he felt comfortable with M.C. using the pedals.
[8] M.C. testified that, although S.C. would slide the driver’s seat all the way back, there wasn’t a lot of room, and it was uncomfortable sitting on his lap. M.C. said that she told her mother, N.C., about the driving and that she was uncomfortable.
[9] M.C. acknowledged during cross-examination that she was excited about getting her licence and about practicing driving a car. The following exchange occurred between Defence counsel and M.C.:
Q. Okay. And he never forced you to sit on his lap, right?
A. I asked if he could sit in the passenger seat and he said no.
Q. Okay. But then you would proceed to slide over and get on his lap?
A. Yes.
Q. Okay.
A. He said that was the only way that I could drive.
[10] M.C. testified that she thinks the driving incidents happened between 2018 and 2020 or 2021. She said that, in 2019, they happened in the same manner almost every weekend and sometimes during the week. According to M.C., in 2020, the driving incidents continued happening almost every weekend. Again, on each of these occasions, S.C. would get an erection with M.C. on his lap.
[11] M.C. also gave evidence about conversations she had with S.C. about the erections. She recounted that S.C. told her the following:
He told me that it was a medical condition and that he couldn’t help it and that I shouldn’t think about it in any way because it didn’t mean anything. And then his solution was that I wear a low-cut shirt so that it wouldn’t happen as often or that it would go away faster.
[12] The following exchange occurred between Crown counsel and M.C. regarding discussions between S.C. and M.C.:
Q. Okay. You also mentioned comments being made about how you were dressed. Can you describe that in a little bit more detail for the court, please?
A. Like, about wearing a low-cut shirt?
Q. Yes, please.
A. He said that it might help so that they wouldn’t last as long. And that if he maybe saw something, that it would help.
Q. And that phrase, that phrase you just used, ‘if he saw something, it would help,’ what did you understand that to mean?
A. My breasts.
Q. And how did that make you feel?
A. Uncomfortable.
Q. Did you say anything about that to him when he raised that as a possibility?
A. Yes, I said I was uncomfortable and that that was weird because I was his daughter, but he said that it didn’t matter because they were just breasts and it didn’t matter who they were on.
Q. Can you recall anything else that was – can you recall any other details about these driving incidents? For instance, can you recall anything that may have been said to you or that you may have said to [S.C.] about the driving incidents? Is there anything else that sticks out in your memory?
A. I brought it up again that I was uncomfortable with it and he told me that he couldn’t help it and that he had tried other things so that it wouldn’t happen, but it still did.
Q. Okay. And when you say ‘other things,’ what do you mean by that?
A. That he would masturbate before.
Q. And did he say that to you or did you infer…
A. Yes.
Q. …that from what he told you?
A. No, he told me.
Q. Okay, and what did he tell you about that?
A. He told me that he did that and that it didn’t work, so he didn’t know what to do.
[13] M.C. testified that the conversations about the medical condition, about masturbation and about wearing a low-cut shirt each happened just once, but M.C. could not recall when these conversations happened.
[14] In his testimony in-chief, S.C. acknowledged that he started taking M.C. out to drive in his 1992 Volkswagen Golf when she was 14 or 15 years old. He said that the purpose was to teach her how to drive. He estimated that he took M.C. out to drive once every week or two, and it was M.C.’s idea to go driving. The driving with M.C. always happened at night after M.C. was no longer permitted to use the internet in accordance with the rules of the home.
[15] Defence counsel asked S.C. to explain his seating position and how the practice driving would work:
Q. Okay. What was the position of your body while you were driving the car?
A. I was sitting on the seat, up straight, with my seatbelt on.
Q. Okay. So, just explain to the court, then, how the practice driving would work.
A. Well, essentially, she would steer the vehicle and learn how to operate the controls and eventually she got better.
[16] When Defence counsel asked S.C. about the positioning of M.C., the following exchange occurred:
Q. Now, you indicated that she was on your lap?
A. She was, yeah, on my knees.
Q. Okay, can you explain to the court exactly where both of your bodies were positioned?
A. Well, I was sitting like this with my body in the seat, in the vehicle’s seat, and she would be sitting on my knees.
Q. Okay. How was the seat positioned?
A. As far back as it would go and as low as it would go to give as much room as possible.
Q. Okay, so you indicated you’re sitting in the seat?
A. Correct.
Q. Where was she positioned on your body?
A. On my knees.
Q. Okay. Where was her buttocks sitting, then?
A. On my knee.
Q. Was she ever sitting in your lap?
A. Not to my recollection.
Q. How long would you often drive with her in this position?
A. Like, the amount of time?
Q. Yes.
A. It varied. Sometimes it was 20 minutes, sometimes it was an hour-and-a-half. So, on average an hour, I would say.
Q. And how many years did this go on for?
A. Oh, about a year-and-a-half, that’s what I can remember.
[17] S.C. denied that he ever had an erection when M.C. was driving with him, saying that “it never happened”. According to S.C., M.C. never told him that she was uncomfortable, and he denied that he told M.C. about a medical condition that caused his erections. He also denied having a discussion with M.C. wherein he told her to wear a revealing top and that, if he saw something, it would help. S.C. further denied ever telling M.C. that he had masturbated before taking her for a drive.
[18] In cross-examination, S.C. said that the 1992 Volkswagen Golf that he took M.C. out in was a hatchback and he acknowledged that it was a compact vehicle. S.C. agreed with Crown counsel’s suggestion that he took M.C. out driving, even before she could get her G1 licence, to get her some experience and comfort on the road before she would need to take a driving test with an instructor. However, S.C. also agreed with Crown counsel that the driving conditions he exposed M.C. to were not the same driving conditions she would experience on any kind of road test.
[19] The following is an exchange between Crown counsel and S.C.:
Q. All right. And is it fair to say in terms of having fun while driving, she wasn’t really going to be able to open the car up or feel anything it could do if she’s got somebody else sitting beneath her with access to the instruments, is that fair?
A. What do you mean, ‘opening up?’
Q. She’s not going to be able to, for instance, see how fast the car can go, while staying within the speed limit of course, or really experience any of its handling for herself, right?
A. We – like, the idea was to drive normal.
Q. Right. But you’d agree with me this was a fun car to drive?
A. Yes.
Q. And you’re a gearhead and you wanted to share that with your daughter?
A. Sure.
Q. And yet you took her driving in a way that was going to compromise her ability to do that.
A. I didn’t think so.
Q. Right. And you didn’t think so because you took her driving in that way on more than one occasion, right?
A. Yes.
Q. Including as she got older and got better.
A. Yes.
Q. Okay. And you took her in this compact vehicle driving in a way where the driver’s seat was pretty cramped, wasn’t it?
A. It was tight but it wasn’t….
Q. Can you tell me what the difference between something being tight and something being cramped is?
A. There was enough room.
[20] When Crown counsel asked how there could be enough room even though there would have been four feet down by the pedals, S.C. responded, “no, I operated the pedals”. He then explained that M.C.’s feet were to the left and she was not operating the pedals.
[21] S.C. agreed that “it’s a possibility” that everyone’s safety would have been endangered because there were four feet by the brakes if, for instance, another car appeared unexpectedly. Crown counsel also asked about the steering:
Q. Okay. And a similar comment about the wheel; there were four hands by that wheel, right?
A. No, she had the steering wheel.
Q. Right, and where were your hands?
A. On the door and on the passenger seat.
Q. I see. And you didn’t touch that steering wheel?
A. No.
Q. And it wasn’t your purpose, then, to, you know, if you noticed her swerving outside the lines, you weren’t going to correct that?
A. Yes, I was going to correct it if….
Q. Okay.
A. I would have been able to, yes.
[22] S.C. agreed with Crown counsel that on each of the several occasions he took M.C. to drive, he had his seatbelt fastened while M.C. did not have a seatbelt.
[23] When Crown counsel suggested to S.C. that it was also unsafe to drive like this because his vision was obscured, the following exchange occurred:
Q. And I’m going to suggest that it was unsafe for you as well because you had somebody else in front of you obscuring your vision, didn’t you?
A. To a certain extent.
Q. To what extent did you have unobscured vision?
A. Because of the seating arrangement I could see fairly well.
Q. Even though she was sitting in front of you?
A. Well, we were offset.
Q. What do you mean when you say you were offset?
A. She was sitting a little more to the left and I was sitting more to the right.
Q. I see. So, from your view, it was just the left side window that was more obscured?
A. Yes.
Q. Okay. But you didn’t mind the risk that this posed to you when you drove like that, did you?
A. I’m not scared in a car, no.
Q. Okay. You didn’t mind the risk that this posed to the car, either, right? Because this was an older vehicle that you’d taken care of, you were driving in a way that I’m going to suggest to you would make it more likely to be in some kind of accident.
A. I would disagree to an extent to that.
Q. To what extent would you disagree with that?
A. Well, due to the low traffic and low speeds.
Q. And you’d agree with me, though, you had no way of knowing who else was on that road…
A. No.
[24] Crown counsel asked S.C. about the evidence he gave in-chief that M.C. would not sit on his lap but rather on his knees:
Q. Okay. Now, you were sitting – you indicated to my friend you were sitting straight up in your seat with [M.C.] on your knees, is that right?
A. Correct.
Q. Would you agree with me that as a matter of common sense and experience, I’m going to assume that you were not flooring the gas, but as a matter of common sense and experience, when a car moves forward, you move back further into the seat, isn’t that right?
A. You mean from the acceleration?
Q. That’s right.
A. Yeah.
Q. So, is it your evidence, then, that although you were accelerating, you were also strenuously ensuring that [M.C.] remained on your knees during those periods of acceleration when you were driving the car forward?
A. I wasn’t. She hung on to the steering wheel.
Q. Okay. I’m going to suggest to you, sir, that the natural thing that would have happened would have been that she’d be pushed back up against you and into your lap, isn’t that how acceleration works?
A. That is how acceleration works.
Q. Right. So, would you agree with me, then, that if anyone was trying to fight against that and trying to clamber back up onto your knees, that’s going to give them one more thing to think about in the driver’s seat of a car that is already over-crowded and it’s going to make driving in that way even more unsafe than it already was?
A. It’s possible.
Q. Okay. Would you agree with me that she did end up in your lap during the course of driving?
A. No.
[25] Crown counsel confronted S.C. about his motivation for taking M.C. driving in the following exchange:
Q. Okay. I’m going to put it to you, sir, that you took [M.C.] driving in a way that was going to compromise her safety and yours, would you agree with that?
A. I mean, it’s an opinion. It is possible.
Q. Okay. And you took her driving in a way that was going to compromise the driving experience for both of you.
A. To a certain extent.
Q. You took her driving in a way that wasn’t going to expose her to the test conditions that you were allegedly preparing her for.
A. That’s correct, I’d have to say.
Q. You took her driving in a way that was going to expose your car to an increased risk of accident or damage?
A. Sure.
Q. And you did that multiple times over an extended period of time?
A. That’s right.
Q. I’m going to suggest to you, sir, that the reason you drove in that inexplicable way is because you had an ulterior motive for getting her in her [sic] lap in that car, didn’t you?
A. No.
Q. I’m going to suggest to you, sir, that you enjoyed having [M.C.] in your lap and that you found it arousing when she would end up in your lap.
A. No.
[26] In cross-examination, the following exchange occurred between Crown counsel and S.C. regarding the reason that he and M.C. took a break from driving for a period of time:
Q. Okay. Did [M.C.] ever tell you that she was uncomfortable?
A. No.
Q. No. I’m going to suggest to her – I’m going to suggest to you, sir, that you knew she was uncomfortable because she raised it, would you agree with that?
A. Because she did what, sorry?
Q. Because she raised it with you.
A. She raised it?
Q. She raised it with you, yes.
A. I’m unaware.
Q. And you never – did you ever speak to anyone else about – did you ever speak to anyone else about the driving that you were doing with [M.C.] at night?
A. Yes.
Q. Who else did you speak to?
A. Mostly everybody knew.
Q. So, I take it that [N.C.], your wife, knew?
A. Yes.
Q. Did you ever speak to her about it?
A. Speak to my wife about it?
Q. Yes.
A. Yeah.
Q. And did she ever tell you that you needed to take a break from driving for any period of time?
A. No.
Q. Did you in fact take a break from driving for any period of time with [M.C.]?
A. We did.
Q. When did that happen?
A. Timewise?
Q. Yes.
A. I can’t accurately – to the best of my recollection, it would have been in the middle somewhere.
Q. Okay. And do you remember why that happened?
A. I do.
Q. Why?
A. Well, my wife told me that she was uncomfortable sitting in that position.
Q. So, you did know that she was uncomfortable?
A. Yes. But the way it was explained to me was she was just uncomfortable.
Q. I see.
A. Due to the – sorry.
Q. I see. So, you knew that she was uncomfortable, but you understood it to be for a different reason?
A. That’s correct.
Q. And that’s your further explanation as to what you understood at that time?
A. That’s what I was told.
Q. I see. And eventually you resumed driving again, correct?
A. Yes.
Q. And it was still in the same way as it was before?
A. Yes.
Q. Although you’d been told it was uncomfortable, you hadn’t been given details beyond that, but you’d been told it was uncomfortable, is that fair?
A. Yes.
Count 2: Sexual Assault (the “Basement Incident”)
[27] M.C. testified about occasions when she and S.C. would watch movies together alone in the basement of the family home in Hamilton. M.C. said that, on one of these occasions, while S.C. was massaging her foot with his hand, he started massaging up her leg “until he got really high…almost to the pelvic bone”.
[28] In his testimony in-chief, S.C. acknowledged that he and M.C. would watch movies alone in the basement. According to S.C., he and M.C. typically sat side-by-side on the couch at the bottom of the staircase with their backs against the armrest. S.C. stated that, to the best of his recollection, they always sat this way. S.C. responded “no” when Defence counsel asked him whether they ever lay down together on the couch. S.C. denied M.C.’s allegation that he slid his hand up her thigh towards her pelvic bone. At the conclusion of the examination-in-chief, Defence counsel asked S.C. what, if anything, he had to say about M.C.’s allegation that he touched her. S.C. replied, “she’s lying”.
[29] In cross-examination, S.C. denied Crown counsel’s suggestion that his ulterior motive for watching movies alone in the basement with M.C. was to get closer to her. S.C. maintained that the armrest of the couch was “very wide”; wide enough to accommodate both he and M.C. who sat side-by-side and were always sitting up straight.
[30] However, the following exchange then occurred between Crown counsel and S.C.:
Q. Okay. Would you agree with me that if you’re watching something, you’re on a comfortable couch, you’re fairly warm, it’s later at night, isn’t one potential natural response to start getting a little sleepy and maybe relax a little bit?
A. Yes.
Q. And that might cause you to lie down or to sprawl out on the couch a little bit more?
A. It could.
Q. It could. Now, your evidence to my friend, despite that was that you always sat straight up against the back of the armrest?
A. That’s correct.
Q. Would you agree with me that that’s a little bit of an unusual way to sit and watch a movie on a couch late at night?
A. I don’t think so.
LEGAL PRINCIPLES
[31] 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. [2] 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.
[32] In this case, S.C. testified. His evidence was exculpatory. I am required to consider and apply the framework enunciated in R. v. W.(D.), [3] 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.
[33] I must determine whether the Crown has proven the specific criminal allegation it has made beyond a reasonable doubt. Even if I do not accept S.C.’s exculpatory testimony, his evidence — viewed in the context of all of the evidence — may leave me in a state of reasonable doubt about his guilt. If it does, he is entitled to an acquittal.
[34] A criminal trial is not a "credibility contest". Even if I were to prefer the complainant's narrative to the one offered by the accused, it does not resolve whether I have a reasonable doubt about the accused's guilt. There are other options requiring acquittal, including "the legitimate possibility" that I am unable to resolve the conflicting evidence and am accordingly left in a reasonable doubt. [4]
[35] The overriding consideration is whether the evidence as a whole leaves the trier of fact with any reasonable doubt about the guilt of the accused. The evidence favourable to the accused must be assessed and considered with the conflicting evidence offered by the Crown as a whole, not in isolation. [5] I can accept all, some or none of a witness’s evidence. [6]
[36] The W.(D.) case “ does not describe three sequential analytical steps that a trier of fact must pass through, one at a time”. [7] As Code J. stated in R. v. Thomas:
A trier of fact must look at all the evidence, when deciding whether to accept the accused's evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown's witnesses prove guilt beyond reasonable doubt and whether the accused's contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so-called "three steps" in W.D. are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering the totality of the evidence. [8]
[37] The burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt. To prove the offence of sexual interference in s. 151 of the Criminal Code of Canada, the Crown must establish the following:
(1) The accused touched any part of the body of a child, directly or indirectly, with a part of the accused’s body or with an object;
(2) The touching was intentional;
(3) The touching was for a sexual purpose; and
(4) The child was under the age of 16 years. [9]
[38] A conviction for sexual assault requires that the Crown prove beyond a reasonable doubt that the accused committed the actus reus and had the necessary mens rea . The actus reus of sexual assault comprises three elements: (1) touching; (2) the sexual nature of the contact; and (3) the absence of consent. [10] The mens rea consists of the "intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched". [11]
ANALYSIS
[39] Defence counsel submits that the case turns on the credibility and reliability of M.C. and S.C. The Defence concedes that M.C. and S.C. went out driving on multiple occasions when M.C. was under the age of 16 years, and that M.C. sat on top of S.C. in the driver’s seat on each of those occasions.
[40] However, the Defence says that I should be left in a state of reasonable doubt on the issue of S.C. having erections on each of those occasions. S.C. maintained that he never had erections when he took M.C. out driving and did not have conversations with her about a medical condition causing the erections, about wanting M.C. to wear a low-cut top, or about masturbating before the driving. The Defence position is that I should accept S.C.’s evidence or, if I do not believe him, his evidence should nonetheless leave me in a state of reasonable doubt on the issue of whether S.C. touched M.C. with his penis for a sexual purpose during each of the driving incidents.
[41] With respect to the basement allegation, the Defence concedes that, if it is proven beyond a reasonable doubt that S.C. massaged M.C.’s leg almost to her pelvic bone, it is touching of a sexual nature without consent. However, the Defence says that a reasonable doubt exists that the incident occurred at all, again relying primarily on S.C.’s denial that the incident happened.
[42] I will begin by considering S.C.’s evidence in the context of the totality of the evidence at trial, starting with the driving incidents. In her closing submissions, Defence counsel conceded that having M.C. sit on top of him was “certainly unusual” and “may not be the typical way to teach children to drive”. However, Defence counsel submits that it would be inappropriate for a court to use speculative reasoning to assume that no one would take a child out driving on their lap at night to teach the child to drive.
[43] Defence counsel referred to and relied upon "the rule against ungrounded common-sense assumptions" which Paciocco J.A. recently explained in the Court of Appeal for Ontario’s decision in R. v. J.C. [12] In J.C., the Court stipulated “ that judges must avoid speculative reasoning that invokes “common-sense" assumptions that are not grounded in the evidence or appropriately supported by judicial notice”. [13]
[44] However, the Court also clarified that “there is no bar on relying upon common-sense or human experience to identify inferences that arise from the evidence…[n]or is there any absolute bar on using human experience of human behaviour to draw inferences from the evidence.” [14] What the rule prohibits is judges using “common sense” or human experience “to introduce new considerations, not arising from evidence, into the decision-making process, including considerations about human behaviour”. [15]
[45] I have reviewed and considered S.C.’s evidence in the context of the totality of the evidence. As I will explain , the implausibility of portions of S.C.’s evidence arises from a consideration of the whole of the evidence and not from the ungrounded common-sense assumption that no one would teach their child to drive in the manner S.C. did. I also found S.C. to be less than forthright in his responses to certain questions, which compromised his testimonial credibility.
[46] S.C.’s testimony was internally inconsistent. His stated purpose for taking M.C. out was to teach her how to drive and for her to get some experience and comfort on the road before she would need to take a driving test with an instructor. However, during Crown counsel’s cross-examination, S.C. admitted that the driving conditions he exposed her to were not the same driving conditions she would experience on a road test.
[47] In cross-examination, S.C. admitted that the Volkswagen was a compact car, yet when Crown counsel suggested that the driver’s seat was pretty cramped with M.C. on top of him, S.C. was reluctant to admit the obvious by responding, “it was tight, but it wasn’t…there was enough room”. S.C. demonstrated a similar reluctance to admit the obvious when Crown counsel suggested that everyone’s safety would be endangered by having four feet by the brakes if another car appeared unexpectedly, saying only that “it’s a possibility”. When Crown counsel suggested that having M.C. sit on top of him would compromise M.C.’s ability to experience driving a fun car, S.C. was again reluctant to admit the obvious, by responding, “I didn’t think so”.
[48] I find that S.C. gave implausible and less than forthright responses when Crown counsel suggested that the driving conditions were unsafe because his vision was obscured. At first, S.C. was only willing to admit that his vision was obscured “to a certain extent”. When Crown counsel followed up by questioning to what extent his vision was unobscured, S.C. gave the non-sensical answer, “because of the seating arrangement I could see fairly well”, followed by “well, we were offset…she was sitting a little more to the left and I was sitting more to the right”. According to S.C. it was just the left side window that was more obscured, and he did not mind the risk that this posed because, “I’m not scared in a car, no”.
[49] I find that S.C.’s responses to Crown counsel’s inquiries about his obscured vision demonstrate that he answered strategically to avoid admitting that he created a dangerous situation by having M.C. on his lap, and to avoid the further inference that might be drawn that the real reason he had M.C. sit on his lap was that he was aroused by it.
[50] When the Crown suggested to S.C. that driving this way did not allow M.C. to experience how fast the car could go within the speed limit, or experience the handling, S.C.’s response was “we-like, the idea was to drive normal”. There was nothing normal about the way S.C. took M.C. driving. S.C. claimed that M.C.’s feet were to the left and she was not operating the pedals and, according to him, she was also sitting a little more to the left. Again, these were not conditions that would be replicated on any driving test, and it did not constitute driving normally. For S.C. to suggest otherwise in his testimony negatively affects his testimonial credibility.
[51] S.C. did not acknowledge that M.C. would sit on his lap when they went out driving, maintaining instead that she sat on his knees. I found his testimony on this point to be implausible. When the issue was first raised by Defence counsel, she asked, “now, you indicated that she was on your lap?”. In fact, to that point, and at no time in his testimony, did S.C. indicate that M.C. would sit on his lap. S.C. responded to Defence counsel’s question by saying, “she was, yeah, on my knees”.
[52] Throughout the examination-in-chief thereafter, S.C. maintained that he put the seat as far back and as low as it would go to give as much room as possible, and that M.C.’s buttocks were on his knees. When Defence counsel asked, “was she ever sitting in your lap”, S.C. replied, “not to my recollection”.
[53] Crown counsel pressed S.C. on this issue. S.C. agreed with Crown counsel that as a matter of common sense and experience, when a car accelerates forward, you move back further in the seat. At one point, he appeared to agree with the Crown that the natural thing that would have happened would have been that M.C. was pushed back up against him and into his lap, saying “that is how acceleration works”. However, S.C. ultimately disagreed with Crown counsel’s suggestion that M.C. did end up on his lap during the driving, and he said that M.C. hung on to the steering and that’s why she remained on his knees.
[54] S.C.’s testimony that M.C. remained on his knees, in a compact car, the entire time he would drive with her, sometimes up to an hour-and-a-half, and on multiple occasions, is implausible. I find it to be even more implausible that S.C. would be able to operate the pedals with M.C. seated on his knees. I reject S.C.’s testimony that M.C. was always on his knees during the driving. S.C.’s testimony lacked credibility on this material issue.
[55] At one point in his evidence in-chief, S.C. said M.C. would steer the vehicle and learn how to operate the controls and “eventually she got better”. Despite S.C.’s testimony that M.C. got better, and S.C. estimated that the driving went on for about a year-and-a-half, there was no change in the manner of driving over that period; M.C. continued to sit on top of S.C. every time they went out driving, including as she got older and got better. This manner of driving did not change even after S.C. learned that M.C. was uncomfortable.
[56] S.C.’s testimonial credibility was also compromised when he was questioned about M.C. being uncomfortable with the driving. This issue was first raised by Defence counsel who asked S.C. whether M.C. had ever told him that she was uncomfortable. S.C. denied that she had. When Crown counsel questioned S.C. about this issue, and suggested that M.C. raised it with him, S.C. responded, “I’m unaware”. To that point in his testimony, in essence, S.C. disavowed any knowledge that M.C. was uncomfortable with the driving.
[57] However, Crown counsel pressed on. He asked S.C. whether he spoke with anyone else about the driving, to which S.C. responded, “mostly everybody knew”. The Crown then asked if he had spoken with N.C., his wife, about the driving and whether N.C. had told S.C. that he needed to take a break from the driving. He denied that N.C. told him to take a break.
[58] Crown counsel again pressed on and asked if a break from the driving did occur. S.C. then admitted that a break did occur and that the reason for the break was because N.C. told him that M.C. was uncomfortable sitting in that position. S.C. then went on to claim that, to his understanding, M.C. was only uncomfortable with the seating position.
[59] I found S.C.’s evidence on this issue to be less than forthright. I find that he evaded the issue of M.C. being uncomfortable with the driving for as long as possible. When he ultimately admitted that he knew she was uncomfortable, he attempted to lessen the impact of this admission by suggesting that he only knew she was uncomfortable with the seating position, as opposed to M.C.’s claim that she was uncomfortable with him having erections.
[60] I reject S.C.’s testimony that his motivation for taking M.C. out, for on average an hour on each occasion, over the course of many months, even before she could get her G1 licence, was to teach her to drive. For reasons that I will explain, I found M.C. to be a credible and reliable witness. I accept her evidence that she asked S.C. if he could sit in the passenger seat, and he said no and said that the only way she could drive was to sit on his lap. I find as a fact that S.C. insisted on this manner of driving on each occasion because he was aroused by having M.C. seated on his lap and would get an erection.
[61] For the foregoing reasons, I have significant concerns regarding S.C.’s credibility and the reliability of his testimony regarding the driving incidents.
[62] S.C. maintained that each time he watched a movie alone with M.C. in the basement, they sat side-by-side with their backs against the same armrest. He disagreed with Crown counsel’s suggestion that this would be an unusual way to sit and watch a movie on a couch late at night. He denied M.C.’s allegation that, on one occasion, he touched her with his hand by sliding his hand up her leg towards her pelvic bone.
[63] My concerns with respect to S.C.’s testimonial credibility in relation to the driving incidents contribute to my rejection of his denial of M.C.’s allegation that he touched her when they were alone in the basement. When he gave his evidence about the driving incidents, S.C. demonstrated that he was a witness who was unworthy of belief on material issues. This infects the credibility of the remainder of his evidence, including his denial that the basement incident occurred.
[64] Based on the concerns I have identified with respect to S.C.’s credibility as a witness, and the reliability of his testimony, I reject S.C.’s evidence that M.C. did not sit in his lap and that he did not have erections during the driving incidents, and I also reject his denial that he touched M.C. with his hand on her leg toward her pelvic bone. I do not believe S.C.’s evidence, nor does his evidence leave me in a state of reasonable doubt.
[65] 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, based on the evidence which I do accept, the Crown has proven that the accused is guilty of the offences charged beyond a reasonable doubt.
[66] During closing submissions, Defence counsel acknowledged that the complainant’s evidence appeared to be credible but suggested that the focus should be on the reliability of the witnesses. However, Defence counsel did not point to any problems with M.C.’s evidence, such as material inconsistencies, which would call into question the credibility or reliability of her evidence.
[67] I found M.C. to be a credible and reliable witness. There was nothing in the substance of M.C.’s evidence or the way she testified that caused me to disbelieve her evidence. M.C. gave cogent evidence about the driving incidents and the basement incident. Her evidence was unshaken in cross-examination.
[68] M.C. testified in a balanced way, making appropriate concessions. For example, she agreed with Defence counsel’s suggestion that S.C. never pushed his erection into her. She admitted that growing up, prior to the incidents which resulted in these criminal allegations, her relationship with S.C. was a normal father daughter relationship. M.C. admitted that S.C. never forced her to go driving, although there were some days that she would agree to go driving when she didn’t feel like it because S.C. wanted to go. M.C. also agreed that there were many times that she would ask to go driving and that she was excited to practice driving a car.
[69] The following exchange occurred between Defence counsel and M.C. regarding the erections:
Q. All right. And he never exposed himself to you?
A. No.
Q. And he never pushed his erection into you?
A. No.
Q. Okay. How do you know it was an erection?
A. What else would it be?
Q. Where did you feel his erection?
A. On my butt.
Q. Okay. You remember telling the police when asked where it was, you said, “My leg, I don’t know.”
A. Yeah, around, like, the – I don’t know what it’s called – like, the top of the thigh underneath, on my butt, like, that area.
Q. Okay, but – so, on your leg?
A. Okay.
Q. I’m going to suggest to you that that’s not accurate, he never had an erection.
A. Okay. Why?
Q. Well, I think that you’re making this up and at no time did he ever tell you that he had masturbated before taking you on a drive.
A. He did tell me that.
[70] In this portion of the cross-examination, it appears that Defence counsel was alluding to a potential inconsistency between M.C.’s trial evidence that she felt S.C.’s erection on her buttocks and her police statement that she felt S.C.’s erection on “my leg, I don’t know”. However, M.C. explained that she felt S.C.’s erection, “around ….the top of the thigh underneath, on my butt, like, that area”.
[71] I do not find M.C.’s testimony to be inconsistent with what she told the police. In fact, Defence counsel did not refer to this portion of the cross-examination in closing submissions to argue that it was a material inconsistency that affected M.C.’s credibility or the reliability of her evidence.
[72] A witness’s demeanour is an appropriate consideration when assessing credibility. [16] However, a trier of fact must not overemphasize demeanour, and is not permitted to accept a complainant’s evidence uncritically based on her demeanour alone. [17]
[73] In R. v. M.G., [18] Galligan J.A. cited with approval the British Columbia Court of Appeal decision of Faryna v. Chorny, wherein O’Halloran J.A. explained that demeanour is only one element that a court takes into account when it assesses the credibility of a witness’s evidence:
If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet (1919), 50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295. [19]
[74] I had the opportunity to observe M.C. testify. When she testified about S.C. getting erections, she was crying; she was emotional. I am mindful that reliance on demeanour must be approached cautiously and that it is of limited value in the assessment of credibility. [20] However, M.C.’s demeanour when she gave this portion of her evidence was not inconsistent with a witness who testified that these incidents made her feel uncomfortable and upset “because [S.C.] was supposed to be a figure that I could trust and somebody that was supposed to protect me, and he wasn’t”.
[75] When combined with the fact that M.C. was a forthright witness, who did not present as having an agenda other than doing her best to recount the details of the incidents, and the fact that there were no material inconsistencies in her evidence, M.C.’s demeanour when she first testified about S.C. getting erections, is merely one element which led me to accept her evidence.
[76] I accept M.C.’s evidence, and find as a fact that, S.C. took her out on multiple occasions to drive, when she was under the age of 16 years, and that on each of those occasions S.C. had M.C. sit on his lap and would have an erection. I find as a fact that M.C. had conversations with S.C. about the erections, including S.C. telling her that he had a medical condition that caused the erections and S.C. asking M.C. to wear a low-cut shirt which might help. I also find as a fact that it was M.C. who told S.C. that she was uncomfortable with what occurred when they were out driving, meaning him having erections, which prompted S.C. to tell her that he could not help it and that he had masturbated before the driving so that it would not happen, but it still did.
[77] M.C.’s evidence about the basement incident was not challenged by Defence counsel in cross-examination. Defence counsel merely asked M.C. whether she was wrapped in a blanket when this basement incident happened. M.C. said that she was not. I accept M.C.’s evidence that once, while she and S.C. were in the basement alone, S.C. was massaging her foot with his hand and then started massaging up her leg almost to her pelvic bone.
CONCLUSION
[78] On the totality of the evidence, I find that the Crown has proven beyond a reasonable doubt that S.C. is guilty of the offences charged. I find S.C. guilty of the offences of sexual interference and sexual assault.
Released: January 23, 2024 Signed: Justice J.P.P. Fiorucci
[1] At the conclusion of the trial, Defence counsel consented to an amendment to Count 2 to add the words “with a part of his body to wit: his hand” to particularize that this charge related to the basement incident. The Defence acknowledged that the accused was not prejudiced by the amendment, which conformed with the evidence and the disclosure the accused had received.
[2] R. v. Lifchus, [1997] 3 S.C.R. 320 (S.C.C.).
[3] R. v. W.(D.), [1991] 1 S.C.R. 742 (S.C.C.).
[4] R. v. Challice, [1979] O.J. No. 1301 (Ont. C.A.), at para. 38.
[5] The Honourable Mr. Justice David M. Paciocco, “Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment” (2017) 22 Can. Crim. L. Rev. 31, at pg. 47.
[6] R. v. H.(S.M.), 2011 ONCA 215.
[7] R. v. Thomas, 2012 ONSC 6653, [2012] O.J. No. 5692, at para. 23.
[8] Ibid, at para. 24.
[9] Prosecuting and Defending Offences Against Children, A Practitioner’s Handbook, Lisa Joyal, Lisa Henderson, Jennifer Gibson, Emily Lam, David Berg, Emond Montgomery Publications Limited, 2019, Toronto, ON, Chapter 4, p. 89.
[10] R. v. Ewanchuk, [1999] 1 S.C.R. 330 (S.C.C.), at para. 25; R. v. J.A., 2011 SCC 28, at para. 23; R. v. Barton, 2019 SCC 33, at para. 87; R. v. G.F., 2021 SCC 20, at para. 25.
[11] R. v. Ewanchuk, supra, at para. 42.
[12] R. v. J.C., 2021 ONCA 131, at para. 58.
[13] Ibid, at para. 58.
[14] Ibid, at paras. 59 and 60.
[15] Ibid, at paras. 61.
[16] R. v. D.P., 2017 ONCA 263; [2017] O.J. No. 1593 (Ont. C.A.), at para. 26.
[17] R. v. Gostick, 1999 3125 (ON CA), 137 C.C.C. (3d) 53, at paras. 16-17; See also R. v. A.S. (2002), 2002 44934 (ON CA), 165 C.C.C. (3d) 426; [2002] O.J. No. 1950 (Ont. C.A.), at para. 38.
[18] R. v. M.G. (1994), 1994 8733 (ON CA), 93 C.C.C. (3d) 347; [1994] O.J. No. 2086 (Ont. C.A.), at para. 28.
[19] Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), at p. 356-57. See also R. v. A.S., supra, at para. 38.
[20] R. v. Hemsworth, 2016 ONCA 85, at paras. 44-45.