WARNING

The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application.

In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence.

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Halton, 10-701

Date: 2012-03-22

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

D.C.

Before: Justice Lesley M. Baldwin

Heard on: March 9, March 10, May 16, June 27, August 15 and August 24, 2011

Reasons for Judgment released on: March 22, 2012

Counsel:

John Dibski for the Crown

William Markle for the accused D.C.

L.M. BALDWIN, J.:

Charges

[1] D.C. pled not guilty on two counts as follows:

1. on or about the 15th day of February 2010 at the Town of Oakville he committed a sexual assault on N.M. contrary to section 271 of the Criminal Code;

2. on or about the 15th day of February 2010, at the Town of Oakville, being in a position of trust and authority towards N.M., a young person, for a sexual purpose, he touched directly the body of N.M., with his hands contrary to section 153(a) of the Criminal Code.

[2] The Crown proceeded summarily.

Background

[3] The complainant was born in 1992. She was 17 years of age when she gave her video-taped statement to the police on February 19, 2010.

[4] The accused is N.M.'s Uncle by marriage.

[5] The accused resided at a home with his wife, who was the sister to N.M.'s mother.

[6] N.M.'s mother passed away and she and her older sister, Z., would regularly visit her Aunt and Uncle for familial support.

[7] N. and her sister Z. would sleep over on occasion.

[8] N. and Z.'s father had basically abandoned the girls following his wife's death. He moved away to live with a new girlfriend, leaving the girls unsupervised and uncared for.

[9] In the Fall of 2009, N. moved into her Aunt and Uncle's home to finish out her last year of high school.

[10] The accused was in a position of trust to N. and he himself described her to be "like his daughter" in his statement to police and trial testimony.

[11] The accused and his wife supported N., and provided her with food, shelter and clothing.

[12] The accused is employed as a visual arts teacher at a high school. This is the same High School that N. transferred into to complete her Grade 12 year.

[13] N.'s Aunt works as a dentist in Scarborough and was away from the home for extended hours leaving N. in the accused's exclusive care.

[14] Mr. C. and his wife have no children of their own.

[15] Mr. C. has two grown children from a previous marriage. His daughter is employed as a nurse and lives in Burlington. His son is a student who lives in Mississauga with his mother.

[16] During the school week that followed the February 15, 2010 incident, N. disclosed concerns about her Uncle to her school friends. As a result, the school was notified and police were contacted.

[17] On February 19, 2010, N. learned at school that one of her friend's mother had called the school to report her disclosure. N. immediately suffered an anxiety attack and fainted. EMS were called and she was taken to hospital for medical attention.

[18] The accused voluntarily attended the Oakville police station on February 20, 2010. He was arrested, provided his Rights to Counsel and Cautioned. He provided an inculpatory statement to the police.

The Main Allegation

The main allegation is summarized as follows:

• On February 15, 2010, N. and her Aunt and Uncle had just returned from a trip to Niagara Falls to their home in Oakville.

• N. was in her bedroom sorting her clothing for an upcoming family vacation cruise.

• The accused attended her bedroom and requested she try on a new dress.

• N. declined and the accused insisted.

• N. began walking toward the ensuite bathroom and was stopped by the accused.

• The accused removed N.'s top.

• She covered herself and attempted to go to the bathroom to change.

• The accused unhooked her bra.

• N. covered herself by putting the dress on over top of her jeans.

• The accused pushed N. onto her bed and pulled off her jeans.

• The accused put his hand up N.'s dress and attempted to remove her underwear.

• N. held her underwear in place and the accused said "fine just the back then".

• The accused walked N. into her ensuite bathroom to look in the mirror and said "See no lines".

• The accused then left the bathroom.

Two Prior Incidents

The Crown called evidence with respect to two prior incidents as narrative in this matter.

These incidents are alleged to have occurred between March 1, 2009 and February 15, 2010.

The first incident occurred when N. attended for a visit at her Aunt and Uncle's home.

• N. was modelling a new swimsuit she had purchased and her sister Z. and the accused were taking photographs.

• Without N.'s consent, the accused used his hands to adjust the top of N.'s swimsuit and in the process touched her breasts under the bikini swimsuit.

The second incident occurred when N. attended for a visit at her Aunt and Uncle's home.

• N. was planning to attend a family party and changed into a dress her father had recently purchased.

• The accused told N. that the dress was inappropriate for the function.

• N. went into the bathroom and the accused followed her in.

• The accused bent N. over and pulled her dress down which exposed her breast.

[19] The accused told N. that he was "living vicariously through her." He told her that they were family and that it was okay to change in front of him.

[20] He called her his "Barbie Doll."

Summary of the Testimony of N.M.

[21] N. was 18 years of age when she testified on March 10, 2011 and May 16, 2011.

[22] She adopted as true the video-taped statement she provided to police on February 19, 2010 after her release from hospital.

[23] The DVD and transcript were marked as Exhibits #4 and #5.

[24] N. testified that it was her Aunt and Uncle's idea that she move in with them.

"…it was their idea, they said well if you're having troubles at home and you don't want to move in with them (her Dad and his girlfriend) in North York…and you want to focus on your studies and not worry about that kind of stuff you can live with us…it was also my dad's idea…" (Exhibit 5, p. 32)

[25] Originally N. thought she would be attending her old High School.

[26] Because her Aunt and Uncle could not drive her to that school, she transferred to the school where Mr. C. was employed as a teacher.

[27] N. was okay with the transfer because she would still be in the area where her school friends were.

"But then it's like I couldn't see my friends anymore…I don't know why they said…I kind of feel trapped that I don't get to see them…" (Exhibit #5, p. 33)

"…one time he (said) that he was restarting the computer…then he got into my Facebook and he was looking into my account and seeing what I had been talking about with my friends…" (Exhibit #5 p. 24)

"I'm happy living there because I don't have any stress to worry about kind of except for what's going on. Like I help run the house, I'm eating properly now, I have a schedule that I follow – so I'm not all over the place and my studies have been getting better. So the semester started good and I'm keeping up with my schedule. I don't have a lot of distractions you could say, like since I don't go out with friends and I don't go on the computer a lot, so I've been focusing a lot and I love my family but I'm just confused about what's going on." (Exhibit #5, p. 38)

[28] N. said that the main incident happened on Monday, February 15, 2010, in the afternoon. She and her Aunt and Uncle had returned from a weekend trip to Niagara Falls for the Family Day weekend.

[29] Her Aunt was asleep downstairs on the living room couch.

[30] N. was upstairs in her bedroom fixing her clothes.

[31] The accused came upstairs.

"…and my Uncle came into my room…and had asked me to try a dress on and I said okay. So I was going to change in the bathroom but he had told me to just change in front of him because we were like family and that's how family is. And I felt kind of uneasy and tried to go to the washroom to change but he had been blocking my way so he decided it was taking too long I guess for me to change and just took off my shirt. And then I was trying to cover myself up and then he had told me to take off my bra but I didn't want to and I was kind of like no…it looks weird without it, with a dress on and so he took it off for me. And then I threw the dress on as quickly as possible because I didn't want to reveal myself and then he said, okay now take off the pants, but I was saying how I was too lazy and I was tired of changing because we had just come back from Niagara Falls and I was tired and I didn't want to change. And then he pushed me onto the bed and he was taking off my pants for me and I told him that I didn't want to, I didn't want to and then he wouldn't listen and I was scared." (Exhibit #5 p. 5)

"And then he took them off for me and then I pulled my dress down because I didn't want him to see. And then he wanted to take off my underwear but I said no I didn't want to…and he wouldn't stop. And then he almost got them off but then I almost started to cry and then he backed off…then he was trying to tell me that it's okay you don't have to be shy we're like family, this is how family is. And then he said that…we were okay and we were cool and nothing was wrong between us. And I was kind of scared and then he left my room and then I called my friend when I was in the closet and just trying to calm down. And that's what happened this week. And I had to tell one of my friends cause it was really bugging me." (Exhibit #5 p. 6)

[32] N. repeated this same allegation throughout her statement to the police, and in her trial testimony.

[33] Details were added, for example:

1. The accused asked her to try on the dress to see if it was see-through (Ex. #5 pp. 10, 11)

2. He pushed her onto the bed, she tried to get up, he pushed her again (Ex. #5 p. 12)

3. When he was pushing her on the bed he was laughing like it was a joke to him (Ex. #5 p. 12)

4. She felt helpless (Ex. #5 p. 12)

5. She phoned her friend L. on the phone in her closet so the call would not be over-heard (p. 15)

6. After he tried to remove her underwear, he took her to the bathroom and said, see (the dress) looks better without the line (p. 15)

7. She had originally been wearing a T-shirt and jeans (p. 16)

8. She disclosed to 3 girlfriends (M., A., B.) and her friend S. at school (p. 25)

9. "He (the accused) said he looks out for me but in the same time I don't know if it's looking out for me or looking out for him" (p. 34)

10. N. said that she was scared now that this had been reported to the police; she didn't know what would happen to her family; she didn't want her Uncle to suffer stress. (pp. 40, 41, 42)

Prior Incident with a Bathing Suit

[34] It happened sometime during the summer of 2009.

[35] N., her sister and her Uncle went to buy her a new bathing suit.

[36] They all went back to her Uncle's home and she tried it on to show her Aunt.

[37] Her Uncle was adjusting the top part of the suit and said "it's sexier if you wear it this way."

"He just kept grabbing at it and pulling at it and fixing the top part and rearranging it over and over again…he was also touching my breasts…under the clothing." (pp. 18, 19)

"It was the whole breast and it was for some time I guess he was trying to fix it. He just kept saying let me fix it, let me fix it…now you can come downstairs and show your Aunt…" (p. 19)

[38] Her sister was there at the time.

Another Dress Modelling and Breast Reveal

[39] This incident occurred approximately March of 2009.

[40] She was visiting her Aunt and Uncle at their home.

"…and then he brought me to the bathroom and he said, well look if you go to the party in this dress, you're going to be revealing yourself, like your chest and everything and then he like, made me bend over and look in the mirror and then he was like exposing my breasts and saying, oh see if you go to the party then they can see you right through it and then that's when I started crying. And then I was trying to cover myself up and then he hugged me and he said oh it's okay, don't worry, something like that." (p. 21)

[41] It was just the one side of her dress and bra that he pulled down. Her entire breast was exposed.

N.'s Trial Testimony

[42] N. began testifying on March 10, 2011. The transcript of that evidence is 56 pages in length and I have thoroughly reviewed it.

[43] N. completed her testimony on May 16, 2011. The transcript is 56 pages in length and I have thoroughly reviewed it.

[44] N.'s trial evidence was consistent with her statement given to Detective Constable MacDonald on all material matters. I will reference this under the Analysis section of these reasons for judgment.

D.C.'s Statement to Police

[45] On February 20, 2010, the accused provided an audio-taped statement to Detective Constable Stuart MacDonald with the HRPS Child Abuse and Sexual Assault Bureau.

[46] The voluntariness of this statement was admitted at trial.

[47] The DVD of the interview was played for the Court and marked as Exhibit #1. The transcript was marked as Exhibit #2.

[48] The transcript is 80 pages in length. The accused denies all the allegations until approximately page 47 when the admissions begin.

[49] The denial portion of the transcript includes the following statements:

"I know that I just provided her with a better life…I think it's an angry boyfriend who's led charges against me…my wife and I didn't want her to be having a boyfriend…She was aware of that…Her response to that is he's not my boyfriend." (Transcript pp. 10, 11, 12) (Note: The teenage boy being referred to is S., who was a witness at this trial)

[50] The accused described N. as a "normal, happy, good kid…like our own child…" (p. 12)

[51] The accused described the young man named S., whose name he was not even sure of during the course of the interview, as "not any type that you would want your daughter to be going out with, kind of a thug." (p. 13)

"…but recently everything has been fine. We were just planning a family vacation to Mexico on March break…and Vegas on Easter…" (p. 16)

[52] The accused explained that on Thursday, he had taken N. out shopping for a dress to wear in Mexico. His wife was at work. "…basically I'm her parent, my wife works…we cook, like I'm mother, I'm father, I'm a friend to N." (p. 18)

[53] Last weekend, the three of them had gone to the States for Family Day weekend to shop for clothes for N. (p. 20)

"I have not touched that girl." (p. 26)

"I did not sexually assault that child...I treat her like a daughter sir." (pp. 31, 34)

[54] At page 38 of the transcribed interview, Detective Constable MacDonald put the situation to the accused as follows:

"I have to simply look at the facts and the facts are this, she's come in and she's made a disclosure to us of three incidents and she's got a very vivid recollection of one of those incidents. She has a hard time getting it out because she loves her Uncle D., she loves her Aunt A., her mom's died and she's dealing with that. She's not with her dad anymore and she's got mixed feelings about his girlfriend and you know all those things. And something's happened…" (p. 38)

[55] Mr. C. responded:

"Something has happened but what I don't know what…I didn't touch her. I didn't lay a hand on her. I didn't sexually assault her. I care for her. I treat her like a princess, I never did anything to hurt her…" (p. 43)

"…I didn't watch her change…I've never watched her change…other than we're sharing the same room and she's changed in the room…well if we're staying in a hotel 'cause we only have one room and we're getting dressed… well not fully naked but in their underwear, it's – I have not and I'm not staring at her but we only have one room." (pp. 44, 45)

[56] When Detective Constable MacDonald asked the accused if he thought it was okay for him to be in the same room when one of his high school students was changing, the answer was "I have no comment". (p. 45)

[57] Detective Constable MacDonald put it to Mr. C. that:

"…what she's told me is a similar type of circumstance but it's been you and her in her room and you know what I'm talking about." (p. 46)

"But I wasn't in her room to watch her change." (p. 47)

Q. Well why were you there?

A. Because she was showing the clothes she was going to wear, but I didn't watch her change…I was in the room but I wasn't watching her."

Q. Okay. You think it was appropriate for you to be in the room while she was changing?

A. Poor judgment, at this point poor judgment. (p. 48)

"…she was in a state of undress, she had no bra on I think…then I turned my head because I didn't – I wasn't looking, then she was trying to show me the dresses she had." (p. 49)

[58] Mr. C. said that his wife A. was downstairs at the time. He did not know what she was doing. (p. 49)

"If my hands were on her, they were to adjust or pull or fit but nothing that as a parent only trying to help somebody look nice. You know, help me, here, how do I look and we'll fix the collar or fix that…in terms of touching that's it. (p. 50)

"I didn't help her out of her bra." (p. 50)

Q. Why did (you) need to see what her dress looked like without a bra on? Why did you need to see that?

A. That is an uncomfortable question. (p. 51)

Q….there's no reasonable excuse why a man who's 55, who's her Uncle and a teacher should be in a room with a developed 17 year old girl while she's changing. None. There's nothing reasonable about that. You and I know that. You know that, you're a good man, you're an educated man.

A. With poor judgment…bad judgment, bad judgment. (p. 54)

Q. …for you removing her bra and to say, I need to see what your dress looks like without it. What other possible purpose could there be for that other than the sexual one? (p. 55)

[59] On page 57, Mr. C. replies:

"I was trying to make her look pretty and nice, she wanted to look nice and anything that I was trying to do with her was as a friend."

[60] Detective Constable MacDonald put it to Mr. C. that he was not N.'s friend.

[61] Detective Constable MacDonald put it to Mr. C. that it would not be appropriate for one of N.'s friends to pull her panties down so that they could see if there was no panty line. (p. 58)

[62] On page 59, Mr. C. admits to unsnapping N.'s bra once, "then I looked the other way."

[63] On page 60, Detective Constable MacDonald puts to Mr. C. that he would not engage in this behaviour with his own daughter.

[64] Mr. C. replied:

"No, what I've done to her is wrong and I know it's wrong."

"…now I look back at it, it's totally inappropriate…I'm ashamed of what I've done…I've hurt her very much…I've hurt everybody." (p. 61)

[65] On page 62, Mr. C. continues his plea that he did not touch N. for a sexual purpose; however, he admits that "I did dress her."

[66] On pages 63 and 64, Mr. C. recalls the earlier incident with the bathing suit. He agreed that he adjusted her bathing suit and that her breast was exposed in the process.

[67] On page 66, Mr. C. agrees that he crossed boundaries with N. that he should not have.

"…I'm guilty of what you've said I've done and my addendum to that is that it wasn't done – it was like playing Barbie, and maybe it was immature, and it's sexual misconduct but I wasn't seeing it as sexual misconduct and she was happy to go and buy the dress and she was happy to, how do I look, can I try this on, can you fix it for me. It was – and it's not like N. is shy…it wasn't like, you know, I was ripping clothes off her." (p. 69)

[68] Starting on page 70, Mr. C. expresses deep remorse and distress for what he has done to N.

[69] His comments include that he knows that he is in a lot of trouble and that he has destroyed a lot of people's lives, including his own. (pp. 70, 71)

"But you were asking me how I feel. Obviously, as you would expect a person in my situation to feel. A person who's had a perfect life, who had everything going for him and just did some stupid, stupid things and it got out of hand, it went too far, it was inappropriate, it went out of hand. It got out of hand and it was just was never, it was fun, it was like bringing youth and happiness and we were laughing again, it was, it was not sexual…It was friendship." (p. 78)

Summary of the Testimony of D.C. – Examination-in-Chief

[70] D.C. testified on June 27, 2011 and on August 15, 2011.

[71] The transcript of the June 27, 2011 testimony is 105 pages in length.

[72] Bench notes taken on August 15, 2011 are lengthy and cross-reference many questions put to D.C. regarding Exhibits #2 and #5 – both N.'s and Mr. C.'s statement to Detective Constable MacDonald.

[73] Mr. C. testified as to his background and educational attainments.

[74] He married N.'s Aunt, A.S., in either 2004 or 2006 – he could not recall.

[75] Mr. C. testified that N. moved in with them at the end of October 2009.

[76] The expectations were that N. was to do well in school, keep her room and the house clean, and help with the cooking.

[77] The agreement was that N. was living with them to complete her Grade 12 year of high school.

"…we knew we were getting into a heavy responsibility that was going to change our lifestyle as well…we had agreed to go to the end of June. (Transcript p. 41)

[78] Mr. C. drove N. to and from the school every day.

[79] N. would spend one of her spare classes in his classroom doing her homework.

[80] Mr. C. wife worked at the dental clinic in Scarborough on Monday, Tuesday, Thursday, Friday and Saturday each week. A. would not get home until 8:30 or 9:00 p.m. during the week. N. generally spent her Saturdays with her Aunt working at the Scarborough dental clinic.

Relationship between N. and her Aunt A.

[81] During the period from October 2009 to February 19, 2010, Mr. C. testified that N. "had more fear of A. than she would of me. As soon as she heard A.'s car coming and the garage door opening, she'd scurry to turn off the TV and get back to her homework…she loved her…(N. did not want) to be spoken to about not pulling her weight or not doing her job. She wasn't physically frightened of her. She just didn't want to be reprimanded by her and neither do I." (p. 45)

Spare Time Activities

[82] Mr. C. testified that the three of them spent their spare time together "shopping, eating and travelling." (p. 46)

[83] There was a lot of overnight travelling. On all occasions, the three (3) of them shared one hotel room. (pp. 46, 47)

"We did a lot of trips to Niagara Falls and we would stay there for the weekend…we would go Saturday night, sleep over Saturday night and come home Sunday." (p. 46)

[84] The hotel stays happened maybe twice a month. They usually stayed at the Fallsview Casino Hotel or at the Great Wolf Lodge. (pp. 46, 47)

[85] Buying clothing for N. was always a big part of the trips.

[86] On at least three (3), perhaps five (5), occasions during the time period in question, Mr. C. was alone with N. when she bought clothing.

[87] In addition to the Family Day weekend trip, Mr. C. talked about the Christmas trip to the Fallsview Casino Hotel, the Valentine's weekend trip to the Fallsview Casino Hotel, the upcoming trip to Mexico for the March Break, and another upcoming trip to Las Vegas for the Easter Break.

Three Occasions When N. 'Broke the Rules'

"…there were only three times that I recall where I was really about to say okay, I've had enough, and (was) ready to send her back." (p. 50)

[88] The first had to do with N. not wrapping some Christmas gifts. (pp. 50, 51)

[89] The second had to do with N.'s whereabouts not being known to him for several hours in January of 2010. Some miscommunication and confusion was due to the older sister Z. (pp. 51, 52, 53)

[90] Two weeks before the Family Day weekend, Mr. C. had discussed N. associating with S. at the school.

[91] Mr. C. testified that he had no prior dealings "negative or positive" with S. (p. 55)

[92] He told N. that he did not approve of her hanging out with S. A. did not want her to have a boyfriend at all. (p. 56)

[93] The third and last rule breaking "was the huge one…at the school and that was on the Family Day weekend on the Friday…" (p. 53)

[94] At the end of the school day, Mr. C. was trying to get all of the students out of the school for the long weekend.

"I see a commotion at the stairwell where one kid is jumping piggy back (on S.'s back), bumping into other students, and causing a commotion…the person turns around, it's N., and I was furious…I shouted at her, get to my room. Get, go, now, like in those words. And she dismounted and scurried to the room." (pp. 54, 55)

[95] Back in his classroom, he expressed his disappointment in her and told her that whatever she was doing was a reflection on him.

"…she said sorry, but was still, was resentful that I had humiliated her, which I did." (p. 54)

[96] During supper, he went through it all with her again and told her how angry he was. She apologized again.

[97] That evening, he told A. what had happened at the school. A. took N. to the dental clinic on the Saturday and she went through the incident with N. as well. On Saturday evening, N. apologized to him again and brought him a Valentine's Day card. (p. 56)

[98] That weekend, the three (3) of them stayed over at the Fallsview Casino Hotel for two (2) nights because it was the Valentine's Day weekend. (p. 57)

Prior Bathing Suit Incident

[99] Mr. C. took N. to buy a bathing suit. N.'s sister Z. was there.

[100] He attended the back of the store where the change rooms were located. N. was standing there with the bathing suit on and asked it if met his standards. He told her it was fine. (p. 60)

[101] Back at the house, N. changed into the bathing suit and came down to the kitchen to show it to A.

[102] A bit of N.'s underwear was sticking out and Z. and A. were teasing her about that. (p. 62)

[103] Z. took photographs of N. in her bikini bathing suit while N. stood on the staircase.

"…sometimes I was on the stair…helping with N.'s posture…I took her arm and put it on the railing…to change the status of the photo…(I) was just coaching." (pp. 63, 64)

[104] In examination-in-chief, Mr. C. was asked "did you place your hand on her breast, whether inside or outside of her clothing?"

Absolutely not. (p. 64)

[105] Mr. C. denied any other physical contact with N. before, during and after, the photographs were taken. (p. 65)

Prior Dress Modelling/Breast Reveal Incident

[106] In the Spring of 2009, N.'s father had bought her a dress.

[107] N. came into the kitchen and showed A. and him the dress.

"We felt it might be a little too revealing for the type of event that she was going to." (pp. 65, 66)

"It was transparent. (N. was) panic(ked). She had nothing to wear." (p. 67)

[108] All three (3) of them went upstairs to see if A. had something that N. could wear.

[109] In the bathroom of the ensuite, "I took N. by the shoulders and turned her toward the mirror. I said, look, N., you're not wearing this. It's not acceptable and turned her around in a circle." (p. 69)

[110] Mr. C. testified that he did this so that N. could see that the dress revealed a clear outline of her underwear and her brassiere. (p. 70)

[111] A. was in the doorway at the time.

[112] Mr. C. denied bending N. over. He denied pulling down the front of her dress. He denied pulling down her bra. (p. 70) At the very end of his examination-in-chief, Mr. C. returned to this incident and spoke of N.'s breast being unintentionally exposed in the bathroom.

"That incident was reflective of the time when she was wearing the white dress to go to the party where I had positioned her in front of the mirror and in turning her on an angle, the front of it popped open like this." (p. 105)

[113] Mr. C. then stated that it was not N.'s breast that was exposed – it was her bra. (p. 106)

[114] The next day he took N. shopping for a suitable dress.

Family Day Weekend

[115] After A. and N. returned on Saturday (February 13, 2010) from the dental clinic, the three (3) of them left for their weekend stay at the Fallsview Casino Hotel. (p. 73)

[116] They came back home on the Monday at approximately 2:30 p.m.

[117] Mr. C. testified that he dropped the suitcases at the front door. He made himself a cup of coffee. A. was sitting on the couch. N. was upstairs. (p. 73)

[118] He watched TV with A. for about 15 minutes.

[119] Then he headed upstairs to bring up a suitcase.

[120] He stopped outside of N.'s bedroom door because "N. was fidgeting in the room and I stopped to see what she was doing." (pp. 74, 75)

[121] N. was arranging all of her clothes on the bed – bathing suits, dresses and jeans – "clothes that we had purchased for her…" (p. 75) N. was wearing jeans and a T-shirt. (p. 81)

"I asked her do you have enough clothes?" (p. 75)

[122] He asked her this because they were heading off to Mexico for March Break.

[123] N. told him that the bathing suits were fine, but not the dresses.

[124] He remained at the doorway. N. was on the other side of her bed.

"…she said she loved her Corona bathing suit and asked if she could show it to me…(then) she pulled off her top and she was braless and I turned my head, oops, and the next thing she said was what do you think? When I turned my head I said oh, boy, you're not shy. Like I was a little bit flabbergasted…I said nice, but I said warn me next time, okay? (pp. 76, 77)

[125] Mr. C. testified that N. had never taken her bra off in front of him before.

[126] He could not remember what N. said in reply. "All I remember was the giggle." (p. 78)

[127] She put the bra part of the Corona bathing suit on and asked him what he thought of it.

[128] He asked her about a black dress. She offered to try it on and show it to him. (pp. 78, 79)

[129] N. left her bathing top on and put the dress over it and pulled the dress down. (p. 80)

[130] N. still had her jeans on.

"Then she said help me. She jumped – she wanted to get her jeans off, so she jumped onto the bed, undid her top button of her jeans and put her feet over the ledge and asked me to yank to help her, so." (p. 81)

[131] The jeans were tight.

Q. Did you oblige her in that regard?

A. Yes, I did.

"I probably pulled them to her thighs…She rolled back over to the other side. She had her dress. She pulled it so she was not exposed and rolled and kicked the rest of her jeans off with her feet." (p. 82)

"I moved back to my doorway position and she came around to the end of the bed way and asked what I thought about it… (I said) a little bit short. I wasn't sure if it was going to meet with A.'s approval or not…I said I think we're going shopping at Square One…(on) Thursday." (p. 83)

[132] Mr. C. testified that N. "adjusted her underwear because it was lumpy and came to show it to me and I said go show A.. So she went downstairs." (p. 84)

[133] He continued into his room with the suitcase.

[134] Mr. C. denied removing N.'s top.

[135] Mr. C. denied undoing N.'s bra. He said she wasn't wearing a bra. (pp. 84, 85)

[136] He denied forcing N. down onto the bed. (p. 98)

[137] He denied unbuttoning N.'s jeans. (p. 98)

[138] Mr. C. denied pulling N.'s underwear down.

[139] Mr. C. denied that N. cried out or screamed at any point. (p. 85)

[140] When he finished unpacking his suitcase, he went downstairs.

[141] A. was still watching TV.

"There was no volume, it was the Olympics recaps, so it was kind of just non-eventful…so it was just a quiet time in the house." (p. 79)

[142] N. showed A. the black dress she wearing. A. was not happy with the dress. (p. 86)

[143] A. told N. to go get changed. They were going out to dinner. N. did so.

"…she was no problem… (N.'s mood was) pleasant, cheerful, talkative." (p. 87)

[144] The usual school/home routine followed on Tuesday, Wednesday, Thursday and Friday morning.

[145] On Thursday night, he bought N. a new dress and she modelled it for him in the store.

"I said that's acceptable. That's what people wear. It seemed normal to me." (pp. 88, 89)

[146] Mr. C. testified that N. seemed fine to him all that week. He was not aware of any problems.

[147] At school on Friday, February 19, 2010, at approximately 9:30 a.m., students came to his classroom door "banging that N. had collapsed…I rushed to the scene." (p. 91)

[148] He found N. collapsed on the school floor – other teachers were helping and students were there "to see the commotion." (p. 91)

[149] N. was hyperventilating. She was put in a wheelchair and brought to the health room.

[150] Mr. C. testified that it was his decision to call 911. He didn't actually make the call, but he gave a verbal command for that to be done.

[151] He sat beside N. to comfort her before EMS arrived.

[152] N. was hyperventilating the whole time.

"There were no words that came out of her mouth." (p. 92)

[153] Mr. C. testified that he had heard that N. had collapsed this way three times before. (p. 92)

[154] N. had seen numerous doctors about it. The doctors said that all signs were normal. (p. 93)

[155] He took his vehicle and drove to the hospital.

[156] Four hours later, a Peel Regional Police officer told him:

"go home because they're investigating a sexual assault on N. and Halton Police will contact me because it's in their jurisdiction…go home and wait for their call." (p. 94)

[157] Mr. C. testified that he was confused, nervous and panicked. Something was wrong with N. and he didn't know what.

[158] Eventually, he put "two and two together" and realized he was being viewed as a suspect. (p. 94)

[159] He went home and waited for the call from Halton police.

[160] Detective Constable MacDonald called him that afternoon. The next morning he went into meet him.

[161] Mr. C. testified that he was referring to another incident entirely when he told the officer that he had unclipped N.'s bra.

"It was the previous summer and we were working in the backyard doing landscaping and it was raining and we were both wet and needed to change. I went into the bedroom and found a new shirt. She went into A.'s dressers and found things and she found one of A.'s bustieres and asked me can I try this on? I didn't care. She went into the bathroom, tried it on and came out and said what do I think and she was wearing an army fatigue combat camouflage bra and it was sticking out above and the back and I said it fits you fine, but the bra look stupid. She turned around to her back to me said can you unzip it. I said okay." (p. 97)

[162] He unsnapped N.'s bra.

[163] N. then went downstairs to show Z. and A. her outfit.

Summary of the Testimony of D.C. – Cross-Examination

[164] Mr. C. denied that he was confessing guilt to anything of a sexual nature to Detective Constable MacDonald. He was confessing guilt to making N. feel bad only. (Transcript June 27, 2011 p. 108)

Prior Incident with the Bathing Suit

[165] Between pages 110 to 115, Mr. C. acknowledges for the first time in his testimony, that he did adjust N.'s bathing suit top while standing on the stairs behind her.

[166] Mr. C. testified that he adjusted her top to make it snugger.

"I did not adjust her breasts. I adjusted the bathing top." (p. 115)

The Prior Incident with the Dress

[167] Between pages 115 and 119, Mr. C. expands upon the incident.

[168] Mr. C. states that after twirling N. around in the bathroom, her dress came open a bit and her bra was exposed. (p. 116)

[169] It was put to Mr. C. that he did not give this testimony during examination-in-chief.

[170] Mr. C. maintained that he did.

[171] On page 119, I indicated that the record would speak for itself.

[172] Mr. C. did not initially give this evidence in examination-in-chief. As noted earlier in these reasons, Mr. C. initially spoke of the dress incident in the bathroom without mentioning anything about N.'s dress coming down to reveal her breast or her bra. Mr. C. added this significant detail at the very end of his examination-in-chief when he was going through the incident again. This change in position is exactly what happened during the course of the police interview. I conclude that, at trial, Mr. C. did not give accurate and reliable accounts of what occurred between him and N. His inability to maintain consistency is one of the hallmarks of this assessment.

[173] Mr. C.' versions of N.'s rule-breaking were reviewed again on pages 122 through to 128 of the transcript.

[174] Mr. C. testified as to how the incidents were resolved with N.

[175] It was put to Mr. C. that N. was left trapped with him and his wife.

"She had nowhere else to go. She worked it out. She agreed that her father was not going to provide her with the best home and she could have a better life living with us is what she said….that's when we created the trip to Mexico to make everything happy again." (p. 125)

[176] Mr. C. agreed that N.'s school grades were improving and that she had good friends at school. (pp. 126, 127)

[177] Mr. C. agreed that it was no big deal that N. was not allowed to date S. (p. 127)

[178] When the cross-examination continued on August 15, 2011, Mr. C. denied that his wife was asleep on the couch downstairs on February 15, 2010. He repeated that she was on the couch watching TV with the volume off.

[179] Mr. C. absolutely disagreed that he had asked N. to try clothing on for him on February 15, 2010.

[180] He disagreed that he referred to her as his "Barbie Doll" that day.

[181] Mr. C. agreed that he has referred to her that way when he purchased clothes for her.

[182] N. was like a "mannequin" or "Barbie Doll" when she was trying clothing on for them.

[183] Mr. C. testified that it was like dressing an "inanimate object."

[184] Mr. C. absolutely denied that N. would model clothes for him for his entertainment.

[185] Mr. C. stated that he was entertained by N. and they had a "friendship."

[186] Mr. C. denied telling N. that he lived "vicariously through her." Mr. C. stated that "out of the blue N. asked him what the word meant."

[187] Mr. C. was asked why he initially told Detective Constable MacDonald that he had never watched N. change.

[188] Mr. C. stated that he meant that he "didn't hide around a corner and peek."

[189] Mr. C. stated that he believed that N. was trying on bathing suits when he first went upstairs.

[190] Mr. C. was asked why he did not tell the officer that N. changed into her Corona bathing top on the Monday in question.

[191] Mr. C. stated that it was because he was in the bedroom but "I was looking the other way."

[192] Mr. C. denied taking N.'s bra off. He stated that N. was not wearing a bra.

[193] Mr. C. stated that N. jumped on the bed and he assisted her with getting her jeans off.

[194] At the very end of the cross-examination, Mr. C. stated that he has often called N. a Barbie Doll – she likes to change clothes and to model.

Re-Examination

[195] In re-examination, Mr. C. stated that he didn't understand what he was being charged with when he gave his statement to police.

[196] Mr. C. stated, "I still don't."

Other Witnesses Heard at Trial

[197] S.M., L.M. and M.S. testified as to their recollections of N.'s disclosures to them.

[198] A.S. testified and supported her husband's version of events.

Position of the Defence

[199] It is the position of the defence that N. has fabricated the allegations to seek attention and sympathy from her friends.

[200] The defence submits that N.'s disclosures to her friends lack detail and are inconsistent.

[201] The defence submits that N. embellished her story to the police to save face with her friends.

[202] The defence submits that the Court should be left in reasonable doubt on N.'s evidence; for example, N. said she thought she was screaming out during the Monday main incident. The defence submits this could not be true or her Aunt would have heard this.

[203] The defence submits that N.'s veracity should be questioned because she did not disclose to her sister Z., any other member of her family, or her Aunt. The defence was critical of the fact that Z. was not called as a witness by the Crown.

[204] Further, N. had a motive to fabricate the allegations given the tight house rules she was subjected to and the "humiliation" incident that occurred at the school on the Friday before the Family Day weekend.

[205] The defence submits that the two prior incidents (bathing suit and dress) did not occur as N. disclosed them.

[206] The defence submits that if these incidents did happen, N. would not have moved in with her Aunt and Uncle.

[207] The defence submits that N. acted normally after the Monday morning incident, which again is inconsistent with her version of what occurred in the bedroom.

[208] The defence submits that the specifics of the allegations were not put to Mr. C. during his police interview and that there is room for misinterpretation and misunderstanding as to what Mr. C. was admitting to.

[209] The defence submits that something happened in N.'s bedroom but that the Court cannot determine what that was beyond a reasonable doubt.

[210] The defence submits that when Mr. C. removed N.'s jeans, he was doing so at her request and that he used poor judgment, but that this is not a sexual assault.

Position of the Crown

[211] In addition to verbal submissions heard on August 24, 2011, the Crown submitted 11 pages of typed submissions for the Court's consideration.

[212] The Crown submits that both charges have been established beyond a reasonable doubt.

Analysis

[213] The case involves a R. v. W.D. analysis and the application of the law relating to the elements of the offences.

[214] Case law considered in these reasons include: R. v. W.D., [1991] S.C.J. No. 26; R. v. Chase, [1987] S.C.J. No. 57; R. v. M.B., [2011] O.J. No. 428 (OCA); R. v. L.L., 2009 ONCA 413, [2009] O.J. No. 2029; R. v. Silver, [2007] O.J. No. 4746 (OSC); R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275; R. v. Gostick, [1999] O.J. No. 2357.

[215] After a careful assessment of all of the evidence in this matter, I have determined that the Crown has established beyond a reasonable doubt that on February 15, 2010, Mr. C. touched N.M. without her consent and, in doing so, violated her sexual integrity; accordingly, he is guilty as charged.

[216] I have considered the two prior incidents as part of the narrative to assess credibility. I find that the incidents did occur as testified to by N., and that they were grooming activities which inform what happened on the ultimate incident.

[217] I reject the trial testimony of Mr. C. as fabricated rationalizations. I further reject the testimony of his wife as her bias to support her husband at trial was obvious. Since these charges were laid, she has alienated N.

[218] I accept as accurate, reliable and true the incremental disclosures of guilt given to Detective Constable MacDonald just five (5) days after the incident in question.

[219] By the end of the police interview, the accused admitted he was guilty and was despondent that his life was over, to the point of being suicidal.

[220] His statement to police was a powerful confession of wrongdoing and a show of genuine remorse for having crossed a forbidden line and treating his wife's niece as a Barbie Doll, invading her private bedroom and bathroom space, and to dressing, undressing, and touching her without her consent.

[221] The video clearly shows that Mr. C. understood the charges of sexual assault and sexual exploitation. Further, he is an educated man who has raised a grown daughter of his own. Most importantly, he is a teacher and it is part of his job to understand the charges he was being questioned about.

[222] His testimony that his admission of guilt to the officer was only a vague concession to making N. feel badly is not worthy of belief. I agree with the Crown that during this trial, the accused tried to revise history.

[223] I accept N.'s evidence as accurate, reliable and true.

[224] In both her statement to police, and her testimony to the Court, N. provided detailed accounts of the incidents and the context in which they arose.

[225] N. testified that she had a good relationship with her Aunt, who was standing in for her deceased mother.

[226] N. testified that she had a good relationship with her Uncle but he was behaving in certain situations like she was his Barbie Doll and someone who was there for his gratification and who said that he was living through her vicariously.

[227] When he touched her in ways that made her uncomfortable, he told her that it was normal for family to behave that way.

[228] N. shared some of her concerns with her friends.

[229] It is important to note that N. spoke about her inner turmoil as to how to report what her Uncle was doing to her. She was trying to figure that out when S.'s mother called the school.

[230] It was not N. who brought the police into the picture.

[231] Immediately upon learning that this had been done by others, she collapsed. This is understandable as the world as she knew it had now also collapsed. She was a vulnerable girl with nowhere else to go.

[232] The total lack of motive to make the allegations up was articulated clearly by N. herself following two (2) days of testimony at trial as follows:

"…why would I leave somewhere where I was being treated better than I was with my father? And I…always had food in my stomach. I had a roof over my head. I had a second mother because mine passed away. Why would I leave all of that to go back to somewhere where I felt like I wasn't being treated properly? And where I had to fend for myself, pretty much. Why (would) I go to a place where eventually I would have been kicked out. I had to pretty much take care of myself from then on and stress myself out even more. Why would I go from somewhere where I felt loved, but yet still confused about what was going on? Why would I leave instead of trying to work things out? Why would I leave there and go somewhere where I didn't feel protected or like someone taking care of me and I had to stress about myself everyday…No one else was worried about me. And yes, there was a bonus of if I needed something, I could just ask. Why would I leave somewhere like that to go somewhere where if I needed something important, it would just be pushed aside because it wasn't important to them as (it was) important to my Aunt and my Uncle?" (May 16, 2011 p. 55)

[233] N. testified that after she gave her statement to the police, she had no idea where she was going to live.

[234] The accused's trial evidence about N.'s breaking the rules detailed minor matters and were consistent with normal teenage behaviour. These incidents do not explain the dramatic events of Friday, February 19, 2010.

[235] I accept that N. had no motive to fabricate the allegations in this case. In fact, the opposite is true given her vulnerable circumstances and dependence on her Aunt and Uncle. It is also noted that motive, or lack thereof, is not an essential element of the offences.

[236] I accept as accurate, reliable and true, the prior incidents as testified to by N.

[237] The accused's evidence was inconsistent and not believable.

[238] His trial testimony concerning a prior incident where he unzipped N.'s bra was concerning. Why he was alone in the master bedroom with N. was not explained and was cause for concern. Why he would be giving permission for N. to be trying on his wife's intimate apparel was cause for concern. The accused's statement that his wife was once again downstairs at the time is rejected. If she was, only she could have given N. permission to be going through her underwear drawer and modelling her bra. There was no ring of truth to this incident at all. Further, it was not put to N. during her testimony for her comment.

[239] The fact that Z. was not called as a witness in this matter is easily explained. She is now being financially supported through school by this Aunt. Further, her evidence would only relate to the bathing suit background incident.

[240] The manner in which N. disclosed the incident in question has been fully explained and accepted. (R. v. D.D. supra)

[241] I note that S.M. presented as a very concerned friend and a decent young man. He did not come close to resembling a "thug" as Mr. C. described him to Detective Constable MacDonald. S. did the right thing in reporting what N. had told him to his mother.

[242] I conclude that the testimony of A. was biased in favour of her husband, and against N. She has stayed with her husband and she has severed ties with N.

[243] I agree with the Crown that it is reasonable to infer that A. should feel responsible for bringing N. into the home and then leaving her for extended hours alone in her husband's care.

[244] Further, I find that it should have been obvious to A. that her husband desired more and more hotel stays where the three (3) of them would stay in one hotel room and where the focus of the trips would be buying clothes for N. Staying in one hotel room with a sexually developed 17 year old teenage girl is not appropriate. Engaging in this arrangement every two (2) weeks and for every break, vacation, and even Valentine's Day is a red flag in this case. It was clear to me that Mr. C. had become obsessed with N. – his power and control over her – and his desire to see her change for him and for him to touch her. It is unfortunate that A. did not see these red flags, or if she did, she chose to be wilfully blind to them.

[245] Of particular note is the accused's trial evidence that N. took off her top and bared her breasts to him and then he said, "Whoa you're not shy." A. also testified that she heard her husband say this as she sat watching TV downstairs on the couch. This comment was not put to N. during cross-examination. This comment and version of events was not relayed to Detective Constable MacDonald.

[246] I conclude that this comment and the whole chain of events thereafter, as testified to by the accused, is false. It is a fabrication and a distortion of reality. N. presented to the Court as a shy and modest teenage girl. That is what this case is all about; the accused taking advantage of this girl for his gratification and amusement. Mr. C. objectified this modest and vulnerable girl.

[247] The wife's evidence that she heard this comment is rejected. If she had heard it, reasonably she would have inquired about what was going on as the acting mother. She did not inquire. She did nothing.

[248] The defence submits that N.'s evidence about screaming during the incident is not believable and casts doubt on all her evidence.

[249] Firstly, I accept that A. was asleep on the couch when the incident occurred. This provided the accused with the cover he needed to yet again be alone with N. in a bedroom/bathroom situation.

[250] Secondly, N.'s evidence makes it clear that she thought she was screaming at the top of her voice but she did not know how much sound actually came out. (Transcript May 16, 2011 p. 25)

[251] N. was scared during the incident – the accused was laughing at the time like it was a joke and not listening to her as she repeated "no" and was crying.

[252] It is significant that N. retreated into her closet to hide and tried to call her cousin for help immediately thereafter. This is consistent with her state of helplessness and her confusion as to how to disclose to her Aunt.

[253] It is noteworthy that there is a striking similarity between N.'s statement to Detective Constable MacDonald and the accused's eventual admission of guilt, both statements being made within 24 hours of each other and within days of the incident in question.

[254] N. had only lived with the accused and her Aunt for 3.5 months when the incident occurred. While she was crying, he was laughing and forcing her down on a bed and removed her clothing. N. was confused by his actions and his protestations that it was normal and is what families do. Further confusion must also have arisen from the accused's statements to her that she should be dressed appropriately, and his inappropriate physical actions. This is classic predatory behaviour. They isolate, confuse, humiliate and dominate their prey.

[255] N. had the strength and dignity to say no and to maintain no to this sexual violation.

[256] Mr. C. told Detective Constable MacDonald that he felt ashamed for what he has done to N. Unlike N., he does not have the moral courage to maintain that position.

[257] Three witnesses testified over the course of this six (6) day trial on a voir dire namely: Officer Barbara Kent, S.M. and E.H. The defence contested the complainant's use of CCTV equipment in this case. A ruling permitted use of the CCTV equipment.

[258] Seven witnesses testified at the trial at large, namely: Detective Constable Stuart MacDonald, N. M., S.M., L.M., M.S., D.C., and A.S. Five Exhibits were filed.

[259] The trial commenced on March 9, 2011 and ended August 24, 2011. Only two days were originally scheduled for trial. This case is yet another example of counsel seriously under-estimating trial time required in the Halton Region. The original date to deliver reasons for judgment was set for January 19, 2012. Due to intervening complicated in-custody matters, the reasons for judgment were adjourned to March 22, 2012.

[260] All of the witnesses' evidence, the Exhibits filed, and submissions heard, have been carefully reviewed and assessed. It is not necessary or reasonable for me to review all of the evidence in any more detail than I have in these focused reasons for judgment. It must be understood that busy trial court Judges must deliver reasons in hundreds of trial matters every year and we are required to do so in a timely fashion. This Court is aware of appellant authority governing the sufficiency of reasons by trial Courts and has been guided accordingly. (See R. v. H. (J.M.), 2011 SCC 45, [2011] 3 S.C.R. 197; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621; R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. Drabinsky, 2011 ONCA 582, [2011] 107 O.R. (3d) 595.)

Decision

[261] Mr. C. is found guilty of sexual assault and sexual exploitation.

[262] The sexual assault finding is stayed and a conviction will be registered on the sexual exploitation count at the request of the Crown.

Released: 22 March 2012

Signed: "Justice Lesley M. Baldwin"