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(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (4.1), read as follows:

486.—(4.1) A judge or justice may, in any proceedings against an accused other than in respect of an offence set out in subsection (3), make an order directing that the identity of a victim or witness, or any information that could disclose their identity, shall not be published in any document or broadcast in any way, if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction.

COURT FILE No.: 120353 – Sioux Lookout

Citation: R. v. T.(D.G.), 2012 ONCJ 296

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

D.G.T.

Before Justice Peter T. Bishop

Heard on April 17 and 18, 2012

Reasons for Judgment released on May 15, 2012

Dave MacKenzie ........................................................................................................ for the Crown

Mark Van Walleghem ...................................................................................... for the accused D.T.

BISHOP J.:

[1] D.G.T. stands charged as follows:

1. That on or about August 19, 2011 at the Municipality of Hudson, in the said region, did for a sexual purpose touch A.T., a person under the age of sixteen directly with a part of his body, to wit: hand, contrary to Section 151(a) of the Criminal Code;

and further that:

2. On or about the 19th day of August, 2011 at the Municipality of Sioux Lookout, in the said Region, did commit a sexual assault on A.T. contrary to Section 271 of the Criminal Code

EVIDENCE OF A.T.:

[2] Ms. T. is fourteen years of age attending Grade 8 school and currently lives with her mother and brother British Columbia.

[3] On August 19, 2011, she was living with her family, including her father the accused, at Hudson, Ontario.

[4] She spoke to an Ontario Provincial Police officer on August 20, 2011.

[5] She identified a statement that she signed on April 11, 2012 wherein she disclosed that she gave a false and inaccurate statement when she gave her video statement to the police. She also did not remember what she told the police and most of what she told the police officer in her video statement was false and inaccurate.

[6] She was given the opportunity to review her video statement and came back and identified that it was her on the statement but it did not refresh her memory and that she was not sexually assaulted by her dad.

[7] The court viewed the video statement. She told the investigating officer that she was sexually assaulted Tuesday night in her bedroom. She was lying in her bed and he came in to kiss her goodnight. She was wearing boxer shorts and he put his hands up her boxers and felt around and then he was gone.

[8] She told her mom the next day as her dad was working the night shift. She also stated that a couple of months ago he put his hands up her shirt when she had no bra on and touched her breasts. She was too scared to tell anyone.

[9] She also told the police that something happened to her sister over twenty years ago and they should talk to her.

[10] She further elaborated on the incident wherein her father came in and kissed her on the cheek but she was pretending to be asleep and he started to feel around. It was too hot and she had no blankets on. At first he was outside the boxers and then inside the boxers and she kicked him. She estimated that the incident lasted ten seconds and that she sleeps in a very awkward position.

[11] After he left she started to cry.

RULING ON THE VOIR DIRE:

[12] The court entered a voir dire with respect to the admissibility of the statements made by A.T. to the investigating officer and subsequently in court and with a written statement filed as Exhibit One.

The video statement made A.T. on the 20th of August, 2011 was ruled admissible on the principles outlined in R. v B.(KG)[KGB] 1993 (SCC), [1993]1SCR 740 with respect to necessity and reluctance to testify and her conflicting statements at trial and a written statement filed as Exhibit One.

SIMILAR FACT EVIDENCE VOIR DIRE:

[13] After hearing the evidence of S.H. who is a daughter of the accused, now twenty one years of age, and L.T., the current spouse of the accused. For reasons stated the court ruled on the principles found in R. v Handy 2000 (ON CA), 48 OR(3rd) 257, that S.H.’s evidence was not admissible as similar fact evidence as the probative value did not outweigh the prejudicial affect.

EVIDENCE OF D.G.T.:

[14] Mr. T. is forty three years of age and employed as a police officer with the Lac Seul Police Service.

[15] On the day of this alleged occurrence, he was working the night shift and he came home and was very tired, he had travelled the day before and he had to work the night shift.

[16] He came home and talked to his wife. His wife and his daughter were working at Lac Seul Floating Lodges and had to be at the dock for work at 7:00 a.m.

[17] The complainant’s door was ajar. He walked into the room. There was no natural light as a blanket covered the window. He felt around and located her head. He tried to tickle her to wake her up. He was looking for her hamstring to make her laugh.

[18] He realized his hand was in her crotch area and her leg was to one side with her rear end up in the air and he immediately let go and A.T. moaned.

[19] He then went to make some coffee and knew that his daughter was angry and upset but thought she was concerned about having no clean laundry or stated that she was scared of ghosts as they came into her room.

[20] He told his wife to talk to his daughter but did not tell about the occurrence and what had happened in the bedroom.

[21] He then put on his mask as he has sleeping apnea and got some sleep before getting ready to go to work.

[22] He was arrested on his way to work and denied that at any time he intentionally touched her in the vaginal area as he was tickling her when trying to wake her up.

[23] Usually he would knock on the door but on that day the door was not open.

CROSS-EXAMINATION:

[24] The complainant was sleeping in a position with her rear end in the air. The right leg was bent outwards and it exposed her crotch area which he could not see.

[25] It was dark. He could not see what she was wearing but she usually wore pyjama shorts that were three times too big.

[26] He stated that he touched in the crotch area over the top of her clothes.

[27] He did not talk as he did not want to wake up his son who was sleeping in the next room and there is an air vent that allows the sound to travel through partitions.

[28] He did not tell his wife what had happened as it made him feel uncomfortable and he described it as totally dumb, inadvertent and unfortunate. He asked his wife to go and talk to the daughter but he did not know what to say to his wife.

[29] His wife also worked at the Lac Seul Floating Lodges and she was getting ready for work when the occurrence happened.

[30] He totally denies feeling inside the complainant’s pyjama bottoms on bare skin or touching her inappropriately and any other way at any time.

[31] He reiterated that he touched the complainant’s head first then attempted to tickle her to try to wake her up. It sometimes takes a long time for her to get up. It was closer to 6:30 in the morning and he wanted to get her up to be at work at 7:00 a.m.

[32] Her room was like a cave. He never did see the covers as it was too dark. A kiss and a touch to the head were not sufficient to wake her up and she has experience in waking her up over many times. Being a teenager she sometimes would simply go back to sleep.

DECISION:

[33] Having reviewed all of the evidence I am finding that the Crown has not proven their case beyond a reasonable doubt and a not guilty verdict must issue on both counts.

[34] I have reviewed the principles in R v W(D)(1991) 1991 (SCC), 63 CCC 3rd 397 SCC. The issue is not which version of the matter is true or whether to believe the complainant or the accused. The issue is whether the Crown’s case has been proven beyond a reasonable doubt.

i) If the accused is believed the Judge is to acquit;

ii) If the accused is not believed, there may still be reasonable doubt as a result the accused’s testimony;

iii) Even if the accused’s testimony does not raise a reasonable doubt, there may be a reasonable doubt on the basis of the evidence as accepted.

[35] Here it is basically the testimony of the complainant and the defendant. The court must assess and evaluate the evidence.

[36] The complainant was a reluctant witness. She recanted the statement made in the video on the day after the occurrence. The court was impressed with her demeanour and politeness. She consistently indicated that she did not feel comfortable answering the questions and on numerous occasions asked “may I please leave?”.

[37] The statement filed as Exhibit One and the evidence on the voir dire in both chief and cross-examination create a doubt as to what actually happened. At trial there is an absolute denial that anything improper happened.

[38] The accused gave an exculpatory statement immediately to the police upon arrest and repeated that evidence at trial. He explained each and every detail of this occurrence and denied any inappropriate touching. He explained the difficulty in waking up a teenager in time for work. He described the room as being dark and not being able to see the position of the complainant. He also explained why he didn’t shake her or use voice commands to get her up so as not to wake his son sleeping in another room.

[39] The court believes the accused. He was very sincere in his regret for not immediately telling his wife as to what happened and simply asked her to talk to the complainant. In his words, he put his own interests above that of his child and his family to come to a quick resolution.

[40] The Crown submits that even if the court does not convict with respect to a sexual assault or sexual touching, the court could still convict with respect to an assault simpliciter.

[41] The court rejects that submission as the court believes the accused. The accused could not be convicted of any assault for tickling his daughter in an attempt to wake her up to get to work on time. The circumstances as described by the accused are very believable as there was no intention to commit any assault.

[42] For all those reasons a not guilty verdict will issue on both charges.

Released: May 15, 2012

Signed: “Justice Peter T. Bishop”