WARNING

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Ontario Court of Justice

Date: 2015-11-27

Court File No.: Peterborough 15-0429

Between:

Her Majesty the Queen

— and —

G.M.

Before: Justice S. W. Konyer

Heard on: November 24, 2015

Reasons for Judgment released on: November 27, 2015

Counsel:

• Ms. S. Repka, counsel for the Crown
• Mr. D. Lowry, counsel for the defendant G.M.

Reasons for Judgment

KONYER J.:

[1] G.M., age 23, was tried before me on allegations that he sexually touched a 3 year old child on February 22, 2015. Specifically, he is charged with sexually assaulting the child and with touching the child's body with his hands for a sexual purpose, contrary to sections 271 and 151 of the Criminal Code, respectively.

[2] This was a short trial, and I am indebted to counsel for their professionalism in dealing with the evidence and the issues in this case. The child testified briefly and adopted the contents of a video-recorded interview with police made on March 2, 2015 where he told the police that the accused touched his penis and buttocks. The child's primary caregiver, his grandmother, testified that the child made a similar disclosure to her on February 22 after the accused had been alone with the child and she noticed that the boy's pants and diaper were askew. The accused testified in his own defence and denied touching the child on his penis, buttocks or in any sexual manner whatsoever.

[3] It is conceded that all of the essential elements, other than touching, of each of the charges against the accused are proven. Therefore, the only issue that I must decide is whether the Crown has proven beyond reasonable doubt that the accused touched the child in the sexual manner alleged. If I am not sure of this essential element, then I must find him not guilty of each charge.

[4] Like anyone charged with a criminal offence, the accused is presumed innocent. This only changes if the Crown proves his guilt beyond reasonable doubt. Since I have heard conflicting evidence on one of the essential elements of the charges before me – namely, whether the sexual touching occurred – in order to resolve the conflict I must assess the credibility and reliability of the witnesses who testified. If I believe the accused that he did not touch the child in a sexual manner, or if his denial when considered in the context of all of the evidence leaves me with a reasonable doubt, I must find him not guilty. Even if I find that I am not left with a reasonable doubt by the accused's evidence, I must still consider whether I am sure that he touched the child in a sexual manner based on the evidence which I do accept.

[5] It is challenging to assess the credibility and reliability of a 3 year old witness. The child appeared to be a bright, engaging, and responsive child. Clearly I cannot assess his credibility as a witness to an adult standard (see, for example, R. v. R.W., [1992] S.C.J. No. 56, at paras. 23-26), and it would be wrong to conclude that he is less credible due to confusion about times, dates or details about what clothing he was wearing at the relevant time. The child clearly knows the accused as someone who frequently visited his home to play music and watch auto racing on television, facts confirmed by both his grandmother and the accused himself. The child clearly made a statement to his grandmother on February 22 that the accused had touched his penis, prompting the police investigation. There is nothing about the content or circumstances of his recorded police statement, adopted by him at trial, which would cause me to disbelieve what the child had to say.

[6] Having said that, however, what I cannot determine from the child's evidence alone is how the touching occurred, including whether it was deliberate or accidental. At the time he testified, the child had no present recollection of the incident, which is not surprising given his age and the passage of time. When interviewed by police approximately one week after he first made a statement to his grandmother, the child was asked "[d]id he touch it on top of your pants or underneath your pants?" He replied simply: "[m]y pants." This is illustrative of the lack of precision found throughout the evidence of this 3 year old witness. While this too is unsurprising, it does make it difficult to rely on the child's statement as it cannot effectively be tested in any meaningful way.

[7] The child's grandmother testified for the Crown. She and her husband are the child's guardians, and it appears from her testimony as though she is the child's primary caregiver. Superficially, her evidence is compelling. She testified that she left the child momentarily in the accused's unsupervised care while she used the washroom. Immediately after this, she noticed that the child's pants and diaper were not in their normal state. When she questioned the child, he disclosed that the accused had touched his penis.

[8] On closer examination, however, her evidence is troubling in a number of respects. She testified that the accused, the son of a family friend, would regularly attend their residence and get drunk watching auto racing and playing music with his father and her husband. They would drink and smoke in the basement while she cared for the child in the same home. I gather from her evidence that she tolerated this behaviour, prepared them meals, and had no concerns with their behaviour in the home of a young child, from which I can only conclude that her own judgment is lacking. If her evidence is true, she left the child in the exclusive care of the accused while he was so impaired by alcohol that he was tripping over items in her home shortly before passing out. According to her, she left the child alone with the accused while he was impaired to this degree when the sexual touching must have occurred.

[9] There is an inconsistency between her apparent nonchalance towards the environment to which the child was routinely exposed on her evidence and her claim of attentiveness to the condition of the child's pants that is difficult to reconcile. I find that I am unable to have confidence in her ability to reliably relate the facts of this case to me.

[10] For his part, the accused maintains that he was sober this evening, and that he only consumed two moderate alcoholic beverages over the course of several hours. He denies tripping over anything in the house, denies passing out, and maintains that he was never left alone with the child.

[11] His evidence was also problematic in some respects. He initially testified that he only came up from the basement once and said that the child was in a high chair on this occasion. When confronted with inconsistencies in his statement to police, the voluntariness of which was conceded, he acknowledged that he had actually been upstairs to use the washroom twice, and that on the second occasion the child had followed him briefly inside the bathroom. This inconsistency goes to the heart of his evidence and makes it impossible for me to accept his testimony.

[12] As between the accused and the grandmother, I cannot decide where the truth lies. A criminal trial is not a credibility contest, and I do not have to decide whom to believe. In this case, I cannot be sure whether the accused was intoxicated or not. Nor can I be sure whether he had the opportunity to sexually touch the child as alleged by the grandmother. I am sure that the child made a statement of some sort to the grandmother that the accused had touched his penis, just as he later repeated to the police, but I am not sure that he made this statement in the circumstances related by the grandmother.

[13] Although I cannot say that I believe the accused's denial, his testimony does leave me with a reasonable doubt when I assess his evidence in light of the evidence as a whole. I am simply not sure whether the accused in fact touched the child's penis or buttocks. In those circumstances, I must find him not guilty.

Released: November 27, 2015

Signed: "Justice S. W. Konyer"