WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended.

Date: 2013-12-04

Court File No.: Newmarket 12-168

Parties

Between:

Her Majesty the Queen

— and —

T.B., a young person

Judgment

Before: Justice J.F. Kenkel

Heard on: July 2, August 28, December 4, 2013

Reasons released on: December 4, 2013

Counsel:

• Mr. Jeff Pearson — counsel for the Crown
• Mr. Mark Henry — counsel for the accused T.B.

KENKEL J.:

Introduction

[1] T.B. is charged with:

• Invitation to Sexual Touching s.152 CC
• Sexual Assault s.271(1) CC
• Failing to Comply with a Youth Court Sentence s.137 YCJA

[2] The Crown alleges that the young person T.B. caused a 4 year old boy to perform oral sex upon him. T.B. was 15 at the time.

[3] The Crown's case rests upon the evidence of an eyewitness who was 6 at the time and on DNA evidence that shows saliva DNA matching the child's profile on the accused's underwear.

[4] The accused young person testified. He denied any sexual contact with the boy and provided an explanation for the DNA found on his underwear.

[5] Both counsel agree that credibility is the central issue in determining whether the Crown has proved the charges alleged beyond a reasonable doubt.

The Evidence

[6] A video statement of the eyewitness taken three and a half hours after the alleged incident was adopted by that witness and admitted pursuant to s.715.1.

[7] The eyewitness was visiting the accused's house and went to the basement with the complainant to see puppies. The accused's sister was about to come down and join them when the accused yelled in a deep voice telling her to go back upstairs.

[8] The accused then told the young boy that he had something to show him. He "pulled out his privates" and told the boy to suck on it. The young boy looked like he was pulling his head off but the accused told him, "keep going". The witness thought this was "gross" so she intervened and pulled the boy away from the accused. The accused told her not to tell anyone about what she'd seen and offered her $1000. She then took the boy back to his house. She wasn't able to eat supper and when the complainant's father asked why she told him what had happened.

[9] At trial the eyewitness confirmed she had a present memory of the events beyond the video. Her responses in cross-examination show she was close to and had a clear view of the events she described.

[10] A report from the Centre of Forensic Sciences marked as Exhibit #2 shows that saliva was found on underwear seized from the accused upon arrest. The Centre recovered a DNA profile from that saliva and found that profile matched the alleged victim's profile.

[11] T.B. agreed that he was in the basement with the witness and the young complainant as alleged. They'd come down with his sister to see the puppies that were being kept in the basement. He agreed that his sister went back upstairs to get food.

[12] T.B. recalled that while the young children were looking at the puppies the mother dog jumped up and that frightened the complainant and he "smacked his lip" on a table. T.B. got tissues for the blood and later tossed the tissues in the trashcan in the bathroom.

[13] He watched television for a while and then went to use the washroom. He urinated then he wanted to "clean himself off". To clean himself he chose the napkin from the trash that he had used to clean off the complainant's blood.

[14] T.B. testified that he did not engage in any sexual activity in the 20 to 25 minutes he was in the basement with the children.

Credibility of the Witnesses

[15] I've considered the evidence at trial as a whole and make the findings of fact that follow in that context.

[16] The eyewitness testified in a direct and forthright manner. She is bright as shown by her adoption of the term "pen15" a texting style acronym to avoid saying what she worried might be an inappropriate word in the courtroom. Her present testimony on the central events was consistent with her video statement to the police given within hours of the events described.

[17] The eyewitness is not related to the complainant although she was staying with his family at the time of the events she described. She testified in a factual manner. There's no evidence she had any motive to fabricate a complaint. Her quick report to the alleged victim's father within 15 minutes of the incident left no time for her to fabricate such a detailed complaint and no time for anyone else to coach her to make such a complaint.

[18] Her evidence is logical, internally consistent and consistent with the credible external evidence provided by the Centre of Forensic Sciences showing the alleged victim's saliva on the accused's underwear.

[19] The alleged victim did not describe any sexual assault when he was interviewed by the police shortly after the event. He was 4 at the time of the interview. He told the police T.B. was "bad, very bad". When asked why, he repeatedly said he didn't want to talk about it. He eventually told the police he was getting bored with talking and wanted to go play with toys.

[20] The accused did not display the same bright, positive demeanor that was shown by the Crown's witness. He was however generally responsive to questions. The one change in demeanor came when his voice volume lowered as he explained his use of the bloody tissue in the bathroom. I'm mindful that the accused is a teenager and his presentation in court should be considered in that context and not compared with other witnesses. Other than the change in his demeanor mentioned I place no weight on his presentation in court when assessing the credibility of his testimony.

[21] T.B. confirmed much of the testimony of the Crown's witness. He agreed he was present in the basement when the children came down and that his sister went upstairs leaving him alone with the other two. He agreed that the children were there to see puppies. He confirmed he was wearing jeans with a zipper as described by the Crown witness.

[22] T.B.'s evidence differs from that of the Crown's witness on the central point – the allegation of sexual assault. T.B. testified that there was no sexual contact and that the presence of the boy's DNA on his underwear is reasonably explained by his use of bloody tissue to wipe himself.

[23] I do not find T.B. to be a credible witness. His evidence is illogical and is contradicted by credible external evidence.

[24] It's not plain why T.B. would have to wipe himself after urinating but assuming that to be his practice it's illogical that he would choose a bloody tissue to clean himself. His explanation that there was no other tissue in the bathroom he admitted in cross wasn't something he thought of at the time but apparently recalled later while discussing the matter in his lawyer's office.

[25] There was no blood found on the accused or his clothing at the time of the arrest that night. There's no evidence that explains how the accused could wipe himself with a bloody tissue, not get any blood on him, but somehow transfer just saliva and then further transfer that onto his underwear.

[26] The CFS report marked as Exhibit 3 notes that the saliva found in the crotch area of the accused's underwear was large – 15cm x 7.5cm. While wet transfer can occur, typically transfer from mouth to tissue to penis to underwear would decrease the volume of saliva at each step. The forensic biologist stated in conservative and neutral terms appropriate to a scientist witness that the large area of saliva is "much greater that what I would expect" from the scenario suggested by the defence evidence.

[27] There's no evidence to show it's possible for only saliva to be transferred from a bloody tissue as described. The amount of saliva found is completely inconsistent with the scenario described. There is no credible evidence that the alleged victim was injured and then was assisted with tissues as described by T.B. The eyewitness saw some blood coming from T.B.'s penis but she did not see any injury to the alleged victim and she did not see the mother dog jump up as stated by T.B.

[28] I must reject T.B.'s evidence on the central points as illogical, incredible and contradicted by credible external evidence. It cannot leave a reasonable doubt either alone or in combination with any other evidence.

[29] The video statement made by the 4 year old does not help either party. There is some suggestion in very simple terms that T.B. was "very bad" but the Crown understandably does not refer to that evidence in the absence of supporting detail that would link that comment to this case. I disagree with the defence that the lack of mention of a sexual assault in the statement reasonably could be seen as contradicting other evidence as the very young boy simply refused to discuss what had happened that day or what it was about T.B. that was "bad".

[30] For the reasons indicated above I accept the testimony of the eyewitness as logical, reliable, internally consistent and consistent with the credible evidence provided by the Centre of Forensic Sciences. I find that T.B. did cause the 4 year old to perform oral sex upon him as alleged and that the saliva found on T.B.'s underwear was transferred there through that process.

[31] I can find no credible evidence that reasonably could leave a doubt.

Fail to Comply

[32] Certified records show that T.B. was subject to the terms of a Youth Court sentence at the time of the offence which included a term to "keep the peace". The findings above show a failure to keep the peace and combined with the documentary evidence prove a sentence breach as alleged.

Conclusion

[33] I find that the Crown has proved the three counts alleged beyond a reasonable doubt. The young person is found guilty on each count.

Released: December 4, 2013

Justice J.F. Kenkel