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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 FILE No.: Sudbury Information No. Y120474
DATE: 2013·06·20

Citation: R. v. L.(D.), 2013 ONCJ 344

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

D.L.

Before Justice A. Guay

Heard on March 18 to 20, 2013

Reasons for Judgment released on June 20, 2013

Karen Lische .............................................................................................................. for the Crown
Terry Waltenbury ............................................................................................. for the accused D.L.

GUAY J.:

1: ISSUES BEFORE THE COURT

[1] The accused, D.L., a young person now 14 years of age, was charged that between November 24 and November 29, 2011, he sexually assaulted, sexually touched and invited E.W., a seven-year-old girl, to sexually touch him. He pleaded not guilty to these charges and denied that he had committed the alleged offences.

2: THEORY OF THE PARTIES

[2] The crown’s theory was that during the course of a visit by the complainant and her family to his parent’s home in late November 2011, 13 year old D.L. took advantage of the situation and sexually assaulted E.W. when no one was watching them.

[3] The accused’s position was that he did not commit the alleged offenses and that they may have been imagined by E.W. and her mother after the visit was over.

3: FACTS

[4] The evidence established that at some time in late November 2011, E.W. and her family visited D.L.’s family at their home in Hanmer, Ontario. The occasion was D.L.’s stepfather’s birthday, which occurred around that time. In addition to the parents of D.L. and E.W., there were other couples in attendance. The evidence establishes that E.W. and her family arrived at the residence where D.L. and his family resided at approximately 4:00 p.m. and that they left at approximately 10:00 p.m. that evening.

[5] While there, E.W.’s stepfather, D.M., together with the other men in attendance, helped D.L.’s stepfather, M.C., carry out some renovations to the basement rec room. D.L.’s bedroom was situated next to this area. During the afternoon, the men carried out renovation work in the basement while the women socialized upstairs, eventually helping to prepare the evening meal. Those gathered for the party ate dinner together around 6:00 p.m. and later watched a telethon during the course of the evening. D.L. testified that during the visit he played with his Xbox on the main floor of the house and spent a little time visiting with E.W. and her younger brother V. watching a children’s movie (Finding Nemo).

[6] The evidence disclosed that at one point earlier in the visit, E.W. came upstairs from D.L.’s bedroom where she had been watching a movie with him to complain to her mother about D.L. “bothering” her and kissing her. E.W.’s mother, V.C., told E.W. to tell D.L. to stop bothering her and went downstairs briefly to make sure that the children were behaving. She then returned upstairs to the kitchen to resume the company of the other women there. These included D.L.’s mother.

[7] It was when E.W.’s mother went downstairs later that she found the door to D.L.’s bedroom closed. She testified that at the suggestion of D.M., her boyfriend and E.W.’s then stepfather, she abruptly opened the door to D.L.’s bedroom to check on what was happening there. It was then that she observed D.L. half-lying over E.W. and saw him immediately pull back from that position and lie down on his back on the bed. The evidence indicated that at this point the three children who were on the bed, including D.L., E.W. and E.W.’s younger brother, V., were partially covered by a blanket and the bedroom lights were off.

[8] V.C. recounted how she was alarmed by what she saw. She had D.M. take V. upstairs to another bedroom and proceeded upstairs with E.W. to the bathroom. There she questioned E.W. about what had been going on and, as a result of what E.W. told her and what she herself had observed, she concluded that D.L. had sexually touched E.W. and had had her touch him sexually.

[9] A decision was then made by V.C. and D.M. not to cause a commotion but to wait out the rest of the evening and figure out what to do once they got home. It is clear that V.C. did contact D.L.’s mother and stepfather the next morning in an attempt to have the matter dealt with as a behavioural problem and not a matter to be reported to the police. When later this approach failed to produce the desired response on the part of D.L.’s parents, V.C. pressed for the matter to be resolved by the criminal justice system.

4: THE WITNESSES

Evidence of E.W.

[10] E.W. gave a statement to the Ottawa police on February 24, 2013. In her statement, which she adopted at trial, the seven-year-old complainant (born November 4, 2004) told the investigating officer Marc-Andre Guy, that once a “guy” had bothered her and wanted to touch her vagina. She also told him that she said no to the guy and that she had asked him why was he was doing this? She said that his response was, in English: (she is a French-speaking child); “It’s all right. It’s all right”. E.W. said that the boy wanted her to touch his penis. She further told the officer that he got her to touch his penis when he came really close to her, grabbed her hand and made her do so. She said that she didn’t like doing that. It was E.W.’s belief that when these events happened, she and her family were visiting this boy for Christmas dinner. Interestingly, when D.L. testified, he also said that the occasion in question was that of Christmas dinner. I do not find this discrepancy troubling, testifying as it does to the fact that when children visit their parents’ friends, they are not always focused on the reason for the visit, unless of course it happens to be directly related to themselves or the other children.

[11] E.W. told Cst. Guy that when D.L. touched her vagina, it was inside her pants. She also told him that she was wearing underwear at the time and that the boy touched her inside her underwear on the skin of her vagina. When asked how she felt about the experience, E.W. said that she felt “sad and mad” but that he didn’t hurt her. She recounted that he kissed her a lot at first before he touched her. When discussing whether she had touched the boy’s penis, she said she had, explaining that when this happened the boy turned towards her, pulled her hand really hard and made her hand touch his penis. She said that his penis was in his pants and that she did not see it but just touched it. This is somewhat different from what she allegedly told her mother (that she had seen his penis). In her statement and on cross-examination, however, she was very clear that she had not seen the boy’s penis but had just touched it inside his pants.

[12] In assessing E.W.’s evidence, I was impressed with her frankness and with the fact that her evidence was quite precise for a child of her age. When the alleged events were happening, she said she was afraid that her mother would be mad at her and felt that what was happening was wrong. In cross-examination, she explained that she knew the difference between a good touch and a bad touch and that she had learned this on her own and not at school or from her mother. While her mother’s questioning after she brought her upstairs from the basement was direct in nature, E.W. told her mother what had happened so that her mother could deal with the situation. Her mother told her that she would do just that, stating, “On va regler ca!” or “We’ll fix this!”

[13] A review of the interview process by the police and E.W.’s mother does not suggest that E.W. was manipulated or influenced to say the things she did to Cst. Guy and to her mother. While she did not directly identify D.L., I find the whole of the evidence makes it quite clear that she was speaking about the events which took place when she and her family visited D.L. and his parents at their home in Hanmer in November 2011. This child could not remember all the details of the events which happened on that occasion, but her evidence, together with the evidence of her mother, her then stepfather D.M., D.L. and D.L.’s mother makes it very clear that she was telling us about D.L. and the events which are the subject of the charges before this court. The discrepancy in her evidence about whether she saw D.L.’s penis or not is explainable given her reaction to what had just happened and her mother’s reaction to these events.

Evidence of V.C.

[14] V.C., E.W.’s mother, testified how she, her partner, D.M., her son, V., and her daughter, E.W., visited with S.F. and M.C. at their home in Hanmer, Ontario in November 2011. M.C. and D.M. had been long-time friends and she and D.M. had been invited to S.F. and M.C.’s new home to celebrate M.C.’s birthday. According to V.C., she and her family arrived at the F.-C. residence somewhere around 4:00 p.m. V.C. said that she remained upstairs with the women while E.W. and her brother V. went downstairs to D.L.’s room. After a while, she noted, E.W. came up to see her, complaining about being bothered by D.L. She said that E.W. told her that D.L. was bothering her and giving her kisses. V.C.’s response, she testified, was to tell E.W. to tell D.L. to stop. There is evidence suggesting that she in fact took E.W. back downstairs to make sure that everything was okay.

[15] Most likely after supper, V.C. went downstairs, perhaps to join the other guests. At about this time, she met D.M. at the foot of the basement stairs located near D.L.’s bedroom. While D.M. in his evidence did not testify to telling V.C. that he had a “funny feeling” about what was happening in D.L.’s bedroom (as V.C. did), her reaction to what he did say to her, after he had just opened and closed D.L.’s bedroom door, was to quickly open the door to check on what was happening in the room.

[16] According to V.C., when the door opened, she saw the three children on the bed. D.L. was positioned in the middle of her two children. He was, she stated, leaning half-over E.W. and, upon the door opening, he quickly lifted or moved himself off her and lay on his back on the bed. What she observed alarmed her and she asked her boyfriend, D.M., to bring V., who had been sleeping on the bed on the other side of D.L., upstairs to another room. She then took E.W. upstairs to ask her what had been going on.

[17] E.W. explained to her mother that D.L. had touched her vagina on the inside of her underpants and that he had grabbed her hand and forced her to touch his penis with it. V.C. testified that E.W. told her that she had seen D.L.’s penis. While E.W. may well have said this to her mother, it was quite clear from her statement to the Ottawa police and in her own testimony that she never saw D.L.’s penis and that he did not show it to her.

[18] I find that V.C.’s version of events is credible both in the manner she delivered it and in the context of the whole of the evidence. Apparent in her response to D.L.’s conduct is the confusion that would expectedly follow when the mother of a young girl who has been the subject of inappropriate sexual contact learns about what has just happened to her young daughter. V.C.’s version of the events during the course of her family’s visit to the home of D.L. and his parents was given clearly and credibly. Absent from her testimony was any desire or intention to seek retribution on D.L., both initially when she learned about or strongly suspected what had happened and subsequently as the matter unfolded. While her version of what happened at the foot of the basement stairs differs somewhat from that of her boyfriend, D.M., it is clear from the evidence that what he said on that occasion prompted her to open the closed door of D.L.’s room. There was agreement on the part of both her and D.M. that the door to D.L.’s bedroom was indeed closed. On this crucial point, I reject the evidence of D.L. and his mother, S.F., that his bedroom door was always open during the course of the visit by E.W. and her family. I further accept the evidence of V.C. that when she opened the door to D.L.’s bedroom, the light in the bedroom was off and the children were partially covered by a blanket. When V.C. opened the door to D.L.’s bedroom, it is clear that she was not expecting what she saw and that what she saw shocked her as a parent, particularly given the age and gender difference between her seven and a half year-old daughter and a 13-year-old boy.

[19] V.C.’s testimony with respect to her initial reaction to E.W.’s first complaint about D.L. bothering her clearly shows that she was not expecting the behaviour subsequently disclosed to her by her daughter. V.C, it is clear, chose to see E.W.’s original complaint as that of one child bothering another but not for a sexual purpose. Furthermore, the testimony of both D.L.’s mother and V.C. about what transpired once V.C. disclosed to D.L.’s mother what she believed happened establishes a lack of inappropriate motivation on the part of V.C. in addressing this matter. The evidence was clear that it was only when V.C. realized what D.L.’s parents were not prepared to do (i.e. address D.L.’s behaviour therapeutically) that she decided to bring the matter to the attention of the police.

Evidence of D.M.

[20] In his testimony, D. M. stated that he, V.C. and her children had gone to the home of his friend, M.C., and his partner to celebrate M.C.’s birthday. He noted that there were all kinds of friends and family present during the course of the visit. He stated that after supper and after the drywall had been put up and couches had been installed in the basement rec room, he noticed that the door to D.L.’s bedroom was closed. He testified that when he met V.C. at the foot of the stairs leading up to the main floor of the house, he asked V.C. to ensure that the door remain open. While stating that he was near V.C. when she opened the door to D.L.’s bedroom, he was unable to recall telling V.C. that he had had a “bad feeling” as a result of what he himself had seen when he opened the door to D.L.’s bedroom. He also did not say anything about E.W.’s earlier complaint about D.L. bothering her, obviously because this complaint was made directly to V.C. at a time when he was down in the basement with the other men.

[21] When asked about his and V.C.’s reaction to E.W.’s disclosures, D.M. explained that he expected the two sets of parents involved to solve the problem which had occurred together by consulting appropriate professionals. D.M. explained that when this failed to happen, his long-term friendship with M.C. dwindled until it finally came to an end.

Evidence of D.L.

[22] There were two defense witnesses, one being the accused, D.L., and the other being his mother, S.F.

[23] D.L. recalled the events surrounding his charges, noting that other than E.W. and her family, there were not many other persons present in his home on the occasion in question. This is different from the evidence of his mother and E.W.’s parents on this point, which I accept. Like E.W., D.L. recalled the occasion as being one connected with Christmas dinner. In his mind too, it had something to do with home renovations. As noted earlier, the evidence of the adults who testified established that the event was not a Christmas gathering, although arguably the visit took place not long before Christmas.

[24] When asked when he first heard of the complaint against him, D.L. said that it was later in the evening after E.W. and her family had left to go home. It was clear from V.C.’s evidence that she did not contact D.L.’s parents until the morning of the next day, having, according to her evidence, stayed up until 3:00 a.m. reviewing the matter and how to respond to it with D.M.

[25] D.L. testified that he did not recall E.W.’s mom coming into his bedroom and removing the children during the course of the visit. One wonders how, having recalled these events to the degree that he did, he could forget this particular aspect of what happened during the course of the visit. D.L. denied that he had made the marks alleged to be “hickeys” on E.W.’s neck, although when asked how such marks could be made, he was able to describe how this could be done. According to D.L., he spent only one half-hour with E.W. and her brother, V., during the course of the entire visit by E.W. and her family. D.L. was quite clear that his bedroom door was “always” open during the course of the visit, noting that his mother did not want it closed when there were visitors.

[26] While D.L. was not contradicted in cross-examination, I found his testimony somewhat stiff, as he quickly answered questions put to him with the words “I didn’t”, and “I haven’t”. I did not find his recollection of events to be accurate. He did not give one the sense that his recollection of events was complete, being only able to say that, apart from one half hour spent with E.W. and her brother, he did nothing but play on his Xbox in his room for the remainder of the visit. Accepting the fact that he was under no obligation whatsoever to prove his innocence, that it is difficult to prove a negative one wishes to establish and that he was a witness of only 14 years of age, I found his version of what happened on the occasion of the visit by E.W. and her family unconvincing and lacking in detail, particularly given what was likely to have been a memorable episode in his life. In my experience, witnesses and participants in traumatic or unusual events commonly retain a fairly good recollection of the details surrounding those events unless, of course, they occur far back in time.

[27] I found D.L.’s evidence that his bedroom door had always remained open during the course of the visit by E.W. and her family not credible. This is particularly so when one considers the likelihood of this being sometimes required in light of the renovations and accompanying noise going on in an adjoining part of the basement.

Evidence of S.F.

[28] S.F., D.L.’s mother, testified that the occasion of the visit by E.W. and her family was her partner’s upcoming birthday on December 5. She agreed with V.C. that V.C. and her family arrived at her home in Hanmer around 4:00 p.m. and that they left at approximately 10:00 p.m. that evening.

[29] When asked about her son, D.L., and E.W. and her brother, V., S.F. indicated that during the course of the visit, she frequently checked D.L.’s bedroom in the basement to make sure his door was open. A reasonable inference from this evidence is that the children, including her son D.L., spent more time there together than he was prepared to acknowledge in his testimony. In cross-examination, S.F. insisted that D.L.’s bedroom door had remained open during the course of the entire visit, stating that this would have been the case especially when other children were visiting. She stated further that she had no recollection of D.L.’s bedroom door being closed, admitting, however, that she “didn’t stand there all night” to ensure that this was so.

[30] There was a lot of discussion during the course of her testimony about whether her burbling of E.W. in the latter part of the evening had caused marks to appear on E.W.’s neck. Upon noticing such marks on E.W.’s neck later at home, V.C. formed the suspicion that these marks had been caused by D.L. kissing E.W. during the course of the visit. It is difficult at the best of times to ascertain the nature and origin, including the date, of marks appearing on the human body. Unless, therefore, there is a credible way of establishing cause and effect in such matters, I find that it is better not to speculate about the evidence with respect to these marks on E.W’s neck. While there was credible evidence that D.L. had kissed E.W. in his bedroom during the course of her family’s visit to his home (D.L. admitted to doing so and E.W. testified that he had bothered her by doing so) it would be hard to establish the connection between the kissing and the marks without engaging in speculation.

[31] When asked about her response to the allegations against her son by V.C., D.L.’s mother testified that “they were hard to swallow”. While it first appeared that S.F. might take V.C.’s allegations at their face value, she obviously had a different opinion as the history of this matter unfolded. The impression I had of S.F.’s evidence was that it was an attempt to shield her son from the allegations made against him. She stated that she had asked him whether he had done anything to E.W. and that when he maintained he had not, she accepted his version of what happened in his bedroom.

[32] Clearly, when one considers the evidence of V.C. and D.M., there was a time when D.’s door was shut, with both D.M. and V.C. in turn opening it. Sexually assaultive behaviour does not take long to occur, particularly if it does not involve full-blown intercourse. Touching and groping, which can, obviously, quickly be stopped after being started, can occur in a short time if there is an opportunity for it to occur. Certainly, in this case, there was ample opportunity for the alleged acts of a sexual nature to occur. While it would not be unusual for a parent to deny that her son has acted in a sexually inappropriate manner with a younger child, it is harder to conclude, without credible evidence, that the parents of that child would for no apparent motive and in the face of a pre-existing friendship between the two fathers, make allegations of sexual misconduct against the son of friends they are visiting.

5: ANALYSIS

[33] In R. v. Oselin (1993 CanLII 54 (SCC), 86 C.C.C. (3d) 481;[1993] 4 S.C.R. 595), the court discussed the legal requirement that before the defense of honest but mistaken belief to sexual contact could be left with a jury by the trial judge, there had to be an “air of reality” to the defence. The evidence in support of the defense had first to be adjudged by the trial judge as capable of constituting a defense if believed by members of the jury. While the case at hand is not a case about honest but mistaken belief in consent to sexual activity, the phrase “air of reality” offers an interesting prism through which to approach the evidence in cases such as this present one. Often, a witness will give a version of the events in which he or she was involved which does not make a lot of sense because it clearly does not fit with the rest of the evidence presented in the case, there being no air of reality to it in light of the whole of the evidence presented in the case.

[34] In the present matter, I find that the evidence presented by the young complainant, E.W., and her mother fits in with the whole of the evidence presented to the court and has an authentic ring of truth to it. There was no apparent reason for E.W., a young child, to make her initial complaint, other than that the accused young person whom she and her family were visiting and whom she had not met before was bothering her. She did not initially complain to her mother because she thought she was being subjected to improper sexual conduct, which she had a good sense about, but rather because her young host was behaving in a way which annoyed her and refused to stop doing so. Her mother V.C.’s response to her complaint was not suspicion but rather to go downstairs to the bedroom, where the children were gathered, and make sure that her host’s son stopped annoying E.W. Given the age difference between the complainant and the accused young person, one being a child and the other being an adolescent, as well as the fact that they were of different genders, something ought to have twigged to V.C. about what was going on. V.C.’s initial response to this matter indicated a lack of suspicion commensurate with the circumstances in which she, E.W. and her family found themselves - guests in the home of friends.

[35] While V.C.’s testimony indicated that it was her boyfriend, D.M., who caused her to become suspicious about what might be going on in D.L.’s bedroom and while he in his testimony denied that he had told her that he had a funny feeling about the situation in D. L.’s, bedroom, it seems clear that as a result of a brief exchange between them, she was motivated to check on what was happening in that bedroom, perhaps because of E.W.’s earlier complaint about D.L. bothering her. What seems to have triggered her alarm and her subsequent questioning of E.W. was what she herself witnessed – this being D.L.’s position over E.W. on the bed and D.L.’s sudden removal of himself from that position. Her suspicions aroused, she followed up her observation with direct questions to E.W. about what might have happened to her. While direct, I do not find the questions she put to E.W. to have been leading or that V.C. put into E.W.’s mind the existence of conduct which did not occur. E.W. was quite clear that she knew the difference between a good touch and a bad touch and that it was not her mother or her school which had taught her this but rather it was something that she had been able to learn herself. Her thoughts when D.L. was sexually touching her were that she was sad and afraid that her mother would be mad at her.

[36] There is nothing in the evidence to suggest any negative motivation against D.L. or his parents either on the part of E.W.’s mother or her stepfather, D.M. The accused was, after all, the stepson of D.M.’s time long-time friend and the son of that friend’s partner. The initial approach of V.C. and D.M. was not to cause a disturbance during their visit, but rather to think the matter through later at home and to seek a peaceful resolution to it. Only when it became apparent that this was not going to happen did they resolve to bring what had taken place to the attention of the authorities.

6: FINDINGS:

[37] In light of the above facts, I will now deal with the question of findings of guilt in this matter.

[38] With respect to the charge of sexual assault pursuant to section 271 of the Criminal Code of Canada, I find D.L. guilty as charged. The evidence establishes that D.L. did indeed touch E.W.’s vagina with his hand inside her underpants. This was a part of the actus reus of the offense of sexual assault. The other part of the actus reus of this offence was the act of forcing E.W.’s hand into his underpants to touch his penis. These two actions were not separated from each other in any significant degree of time, location or circumstances. Together, they constituted the actus reus of the offence of sexual assault.

[39] The evidence discloses no other clear acts of sexual contact by D.L. against E.W., unless one finds that the kisses D.L. gave to E.W. were sexual in nature . Since it is not the practice to find kissing to be a sexual act in and of itself (unless the kisses are delivered to an explicitly sexual part of the body such as the breasts or vaginal area in the case of a female person), I do not find such kisses as were admittedly given to E.W. by D.L. constituted a sexual act or acts . Consequently, I do not find them to be part of the actus reus of the offence of sexual assault in this case.

[40] Certainly, the mens rea in evidence when D.L. touched E.W.’s vagina and when he forced her to touch his penis with her hand was that required for him to commit the offense of sexual assault. He did these things for a clearly sexual purpose and for his own sexual gratification without the consent, legal or otherwise, of E.W.

[41] D.L. was charged with two other offences: that of touching the complainant for a sexual purpose, contrary to section 151(a) of the Criminal Code of Canada, and that of inviting E.W. to touch him for a sexual purpose, contrary to section 152 of the Criminal Code of Canada. The issue to be determined with respect to these two charges is whether they constitute offences separate from the charge of sexual assault or whether they are subsumed into the offence of sexual assault.

[42] The issue of whether an accused can be convicted of multiple charges arising out of the same events, such as I believe to be the case in the present matter, has been dealt with by the courts on a number of occasions. The leading cases on this question are that of R. v. Kienapple [1974], 15 C.C.C. (2d) 521; 1974 CanLII 14 (SCC), 44 D.L.R. (3d) 351; [1975] 1 S.C.R. 729 and R.v. Prince 1986 CanLII 40 (SCC), [1987] 30 C.C.C. (3d) 35; [1986] S.C.J. No. 63; [1986] 2 S.C.R. 480; 33 D.L.R. (4th) 724.

[43] Kienapple dealt with an accused who, together with a co-accused, sexually assaulted a 13-year-old girl. He was charged with both rape, contrary to then ss.143 of the Criminal Code of Canada, and having carnal knowledge of a female under the age of 14, contrary to ss.146(1) of the Criminal Code of Canada. In the lower courts, the accused was convicted of both offences. When, however, the matter finally came before the Supreme Court of Canada, the conviction with respect to carnal knowledge of a female person under the age of 14 was quashed. Speaking for the majority, Justice Laskin noted the common law principle contained in the maxim nemo debet bis puniri pro uno delicto - simply that “no one ought to be punished twice for the same offence”. Noting that (see p. 539 of the decision) in a case of potentially multiple convictions it was important to know the verdict on the first count just as in the case of successive prosecutions it was important to know the result of the first trial, Laskin J. stated: “If there is a verdict of guilty on the first count, and the same or substantially the same elements make up the offence in the second count, the situation invites application of the rule against multiple convictions.”

[44] There was however, Laskin J. noted, an exception to this principle. This exception was that when Parliament wanted an accused to face conviction for multiple offences arising from the same fact situation, this could occur. Unless, however, Parliament gave “a clear indication” that multiple prosecutions and multiple convictions from the same factual situation were envisaged, the common law principle against multiple convictions for the same act or acts was to be followed (see p.540).

[45] The issue of multiple prosecutions and multiple convictions arising from the same act or acts was re-visited by the Supreme Court of Canada in the 1987 decision of R. v. Prince. Here, Chief Justice Dickson, writing for the majority, cited Laskin J. in Kienapple in support of the principle against multiple convictions for the same “delict”, “matter”, or “cause”. (see pp. 41 of the decision) If, Dickson C.J.C. cited Laskin J. approvingly, the same or substantially the same elements make up the offences in multiple-count information, the situation invites application of the rule against multiple convictions. Dickson C.J.C. also agreed with Laskin J. that Parliament could mandate multiple convictions grounded in the same factual situation if it wanted to do so.

[46] In his reasons, Chief Justice Dickson observed that (see p. 42) “Canadian courts have long been concerned to see that multiple convictions are not without good reason heaped (my underlining) on an accused in respect of a single criminal delict.” He then went on to discuss the scope of the Kienapple principle. There were, he wrote, two requirements for the rule against multiple convictions to apply. The first of these was the existence of a factual nexus between charges. The second was the presence of common elements in these charges.

[47] In Prince, the facts involved the stabbing of Bernice Daniels by the accused, Sandra Prince. At the time of the stabbing, Bernice Daniels was six months pregnant. When the accused stabbed her, the knife entered her abdomen and punctured her amniotic sac, thereby causing infection to spread into it. While Bernice Daniels recovered from the attack, her child, who was born alive, lived for only 19 minutes before dying. The child’s infection, caused by the puncture of her uterus, it would be found, led to its death. Sandra Prince was charged with assault causing bodily harm for stabbing Bernice Daniels and with manslaughter for causing the death of Bernice Daniels’ child.

[48] In reviewing the concept of factual nexus, Chief Justice Dickson agreed with Justice Laskin in Kienapple that there was nothing to prevent a multiplicity of convictions “in respect of different factual incidents”. (See p. 43 of the decision). It was, he stated, a sine qua non for applying the rule against multiple convictions that the “the offences arise from the same transaction”. Factual nexus could be established, he said, by determining that the same act of the accused grounded multiple charges.

[49] The next task, Dickson C.J.C. explained, was to establish whether there was “an adequate relationship between the charges themselves”. The case law established, he said, the existence of many cases in which the same act gave rise to different offences bearing little or no connection to each other. There must therefore not only be a factual nexus for the rule against multiple convictions to apply but also “a relationship of sufficient proximity” between the offences (see p. 46).

[50] The question arose, Dickson C.J.C. observed, whether, for the principle to apply, the offences charged had to have a common element or elements. In discussing this criteria, he reviewed the principle that an act which constitutes an element of an offence can only be used to sustain a single conviction. The acts of an accused, it had been argued, could only be used once, and this principle militated against a duplication of elements. He noted, however, that the Court in R. v. Cote 1974 CanLII 137 (SCC), [1974]18 C.C.C. (2d) 321, 49 D.L.R. (3d) 574, [1975] 1S.C.R. 303, had rejected the common element test, preferring instead, he said, to focus on “the presence or absence of additional or distinguishing elements”. Dickson C.J.C.’s conclusion was that for the rule against multiple convictions to apply, the requirement of the presence of common elements in different charges would only be satisfied “if there is no additional and distinguishing element that goes to the guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple principle” (see p. 49).

[51] The last consideration brought by Dickson C.J.C. to this matter was that of how to determine whether an element of an offence was or was not additional or distinct. On this point, (see p. 50) he noted that particularization (my underlining) in a second count was not to be taken as a sufficient reason to preclude the operation of Kienapple. He further stated that the elements of an offence could also be found to correspond where there was “more than one method, embodied in more than one offence, to prove a single delict” (see p. 50), in which case the principle could be invoked. He gave by way of example the case of an individual who was charged with both perjury and with falsely testifying in a judicial proceeding contrary to his own previous evidence (see p. 50). The last way in which a correspondence of elements could arise, he noted, was where Parliament deemed “a particular element to be satisfied by the proof of a different nature …because of social policy or inherent difficulties of proof.”(See p. 51). Here, he gave an example from Kienapple where the element of age (a person under the age of 14) served as a substitute for the element of non-consent required in cases of sexual assault.

7: CONCLUSION

[52] The facts in this particular case establish that there was a very close factual nexus between the offences with which D.L. was charged. While I find that he was not in the company of E.W. and her younger brother during the whole of their six-hour visit to his parent’s home, I do not accept his evidence that he was alone with them for only one half hour. I do find, however, that he was with E.W. for at least one period during her visit to his home during which time the events constituting the offence of sexual assault occurred. The evidence places his assault against E.W.at a time shortly before or, most likely, after dinner when the adults present at the party would have not yet gathered to watch the telethon which took place later that evening. Given what was going on during the course of the day (basement renovations and socialization) and what the children were doing (watching children’s videos), it is clear that the offence took place when the attention of the adults was distracted. This being the case and there being no other acts of sexual assault other than those noted, I conclude that the accused young person’s acts of touching E.W.’s vagina and forcing her to touch his penis were the essential acts (the actus reus) grounding the charge of sexual assault. There is no indication that there was the presence or absence of relevant intervening events during the commission of the offence, unless one considers the opening of the door by D.M. as such an event, which I do not.

[53] It is clear that D.L.’s actions were closely related to each other by a common objective which was his sexual gratification. This constituted the mens rea (guilty mind) of the offence of sexual assault in this case. This mens rea was one and the same as the mens rea which was operating when he touched E.W.’s vagina and when he forced her hand down his pants to touch his penis.

[54] The charges faced by the accused young person have a common element, this being the unconsented touching of sexual parts of their bodies for the accused’s sexual gratification. In this case, the elements of the offences of touching for a sexual purpose and invitation to sexual touching are not additional or distinct from the elements of the offence of sexual assault. Particularizing these elements does not give rise to a sufficient distinction precluding the applicability of the principle in Kienapple. An application of the principle elucidated in Kienapple and Prince mandates that the counts with respect to touching for a sexual purpose and invitation to sexual touching cannot stand alone and must be stayed. I therefore direct that they be stayed.

Released: June 20, 2013

Justice A. L. Guay