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(3) 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 (3), read as follows:

486.— (3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144, 145, 149, 156, 245 or 246 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 section 146, 151, 153, 155, 157, 166 or 167 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), (ii) and (iii).

486(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 Information

Ontario Court of Justice

Date: December 21, 2015

Court File No.: Sioux Lookout, Ontario Y145932

Between:

Her Majesty the Queen

— and —

F.C.

Before: Justice Peter T. Bishop

Heard on: September 30, 2015 & November 17, 2015

Reasons for Judgment released on: December 21, 2015

Counsel:

• Elizabeth Hellinga, counsel for the Crown
• John Bilton, Counsel for the defendant F.C.

BISHOP J.:

Charge

[1] F.C. is charged on or about August 15, 2014 at the First Nations Territory of S[…] did commit a sexual assault on J.M. contrary to Section 271 of the Criminal Code.

Evidence of J.M.

[2] Ms. J.M. is fourteen (14) years of age and lives in S[…], Ontario with her grandparents S.C. and J.C.

[3] She disclosed that she was raped on either Friday, August 15, 2014 or Sunday, August 17, 2014.

[4] She recalls it was during the baseball tournament at S[…] where there were lots of people and friends. F.C. came over to have a sleep over. She went down to use the bathroom and was then sleeping in her room and the accused put his hand across her mouth and took her downstairs. He pulled down her pants and put two fingers in her vagina then inserted his penis in her vagina and she started to cry and he took off.

[5] F.C. is her cousin, he was thirteen (13) at the time and she was twelve (12) years of age. She did not see her grandfather as he was asleep upstairs.

[6] F.C. told her if she told anyone he was going to get someone to beat her up. She was scared.

[7] Prior to the intercourse, the accused pulled down his pants and made her suck his penis. She was wearing pajamas and estimated that she sucked his "wiener" for two minutes.

[8] She is pretty sure that he did not ejaculate.

[9] After she started crying he took off and she told her sister A.C. and her cousin G. the next day what had happened.

[10] During this occurrence, her mom was at a Survivor's Suicide Conference in W[…] and she received a message from her Mom asking what happened. When her mom came back from W[…] she was taken by her to the nursing clinic. She had a pregnancy test as well as a test for sexually transmitted diseases then went to counselling. The nurse called the police.

[11] She talked to a lady cop and her mom.

[12] She stated that she did not consent and this is the first time that he did this although he tried before.

Evidence in Cross Examination

[13] She at one time was apprehended by Tikinagan Child and Family Services and she came out with her mom to Sioux Lookout the next day.

[14] Her mother was gone to W[…] for the whole week and when she came back to S[…] she and her mom went to the clinic and came out to Sioux Lookout the day after seeing the nurse. The court clarified this evidence by asking direct questions of the complainant.

[15] The incident happened at the house of D.C.. She did not have F.C. on FaceBook. F.C. came over after the baseball tournament when she was doing the laundry.

[16] She was FaceBooking that night and may have talked to A.O. but did not talk to F.C. that night but for this occurrence.

[17] She had been on FaceBook one time with F.C. when he asked for a smoke; this was two weeks before the occurrence.

[18] She described and named the others in the house.

[19] She stayed at her grandfather's house with A.C. because her mom was out of the community and was always getting drunk. If her mom did not have a drinking problem and remained in the community this wouldn't have happened.

Evidence of F.C.

[20] At the time of the occurrence he was thirteen (13) years of age.

[21] He described his activities on August 15, 2014 when he was outside having a smoke and then went to S.C.'s house.

[22] He went for a boat ride by himself and then came back and checked FaceBook. He went to play a hockey video game with his friend A. and cleaned up the house with his Kookom and J.M.

[23] At the home he was upset because he was supposed to sleep on the couch but that spot was taken by another individual.

[24] He smoked some marijuana and watched television and described the program "Family Guy" between 11:00 p.m. and 12:00 midnight. His Uncle B. slept on the couch where he was supposed to sleep. He described the activities of A.C. and the location of Ms. J.M.'s bedroom.

[25] He then decided with his friend to try and locate some marijuana.

[26] He was folding clothes for his grandmother and cleaned up the room and then allegedly received a text message from J.M. as follows: "if you are going to stick it in me you have to use safety first". J.M. is his cousin.

[27] They went downstairs and Ms. J.M. gave him a condom and she pulled down his pants. He pulled down her pants and she performed fellatio on him and then he had sexual intercourse. There was no evidence that he put the condom on.

[28] It embarrassed him to give evidence in front of his family members as the complainant was his cousin. The whole interaction took less ten (10) minutes and she went back upstairs. She went back upstairs to bed and was again on FaceBook on her Ipad.

[29] Firstly; he stated he was scared to stay in the house because about what happened and then stated he didn't know why he was scared. His grandfather was a couple of feet away and he was scared grandpa would find out. He got his jacket on and ran down the road and got to his parent's home at around 1:00 a.m., went to sleep and woke up about 10:00 a.m. the next day.

[30] He was arrested on the weekend and he was feeling crappy because he was bothered about Ms. J.M. making untruthful statements.

Evidence in Cross Examination

[31] He denies the facts as alleged by Ms. J.M., was not drinking but using marijuana.

[32] He played a video game for 2 ½ hours and arrived home at approximately 6:15 p.m. He was stoked up before he got to the house. He complained about not being able to sleep where he was supposed to.

[33] He knew that J.M. was Face Booking because he saw the reflection in the mirror showing the Facebook symbol.

[34] He described watching the television program "Family Guy" around 8:00 p.m. to 9:00 p.m. and then changed the timeframe to 11:00 p.m. to 12:00 midnight as it usually goes on all night.

[35] When Facebook pops up, she had blocked him out but that only means that her name no longer appears but a message states Facebook user.

[36] He confirmed that he went to the bathroom with J.M. downstairs and he was stoned. He was bummed out.

[37] He stated that he wanted sex and that she did not even scream and did not wake up the grandfather.

[38] He reaffirmed that Ms. J.M. asked to have sex and denied that he put his hand over her mouth. His response was that "she was so full of shit". He was scared because his grandfather (Shoomas) was right there.

[39] He thought he would be busted by his Shoomas.

[40] He got agitated with the Crown and said that the Crown was making it sound so awful. He thought his activities with Ms. J.M. would wake up his grandfather. He denied telling the complainant that he would have someone beat her up if she told.

Evidence on Re-Examination

[41] He admitted that he smoked approximately twelve (12) marijuana joints and was still feeling the effects when he arrived at home.

[42] After questioning by the court and reviewing Section 150.1 (2) of the Criminal Code it was conceded by the defense that the only live issue was whether or not J.M. consented to the sexual activity.

Decision

[43] I have reviewed the case of R v WD (1991, 63 CCC (3d) 397 (S.C.C)) which is summarized as follows:

1. If the accused is believed, the judge must acquit.
2. If the accused is not believed there may be still a reasonable doubt as a result of the accused testimony.
3. Even if the accused testimony does not raise a reasonable doubt there may be reasonable doubt on the evidence as a whole that is accepted.

[44] I have also reviewed Section 150.1 (2) of the Criminal Code the relevant section is as follows:

When an accused is charged with an offence under Section 151 or 152, subsection 173 (2) or Section 271 in respect of complainant who is twelve (12) years of age or more but under the age of fourteen (14) years, it is a defence that the complainant consented to the activity that forms the subject matter of the charge if the accused:

(a) Is less than two (2) years older than the complainant and

(b) Is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitive of the complainant.

The accused and complainant are separated in age by less than two years, which makes 150.1(2)(a) operative.

[45] During the trial, I ruled that the complainant did have communication with the accused through Facebook but did not allow the printed page admitted into evidence as it offended Section 276 of the Criminal Code. The Facebook communication was approximately five (5) years old. It does not make the complainant less worthy of belief.

[46] I find that the young person, Mr. F.C. was evasive with respect to the timeframe of this occurrence. That is understandable as he admitted use of twelve (12) joints prior to this interaction. He was stoned or stoked.

[47] I accept that he was embarrassed giving the evidence as he had sex with a close relative, his cousin who was twelve (12) years old at the time.

[48] I accept that he was scared because his grandfather might find out, but conclude that he was also scared because he knew he had committed an offence by not obtaining the consent of the complainant as it was forced sexual intercourse.

[49] The complainant became belligerent during the trial and was required to leave the court to recompose herself on two occasions. This was after she was badgered by the defence lawyer who repeatedly asked the same questions over and over again. At one point the complainant asked Mr. Bilton "what do you not understand Princess" and under her breath "the shine on your head is brighter than my future". The court directed its gaze to Mr Bilton's bald shaved head and observed an unusually bright reflection under the combined fluorescent and incandescent lights. This utterance was noted as an accurate observation and assessment of her station in life. She was instructed to be respectful and answer the questions. I do not conclude that the complainant was untruthful because of her confrontation with the defense lawyer. Further, the court had to admonish the defense lawyer for his aggressive, intimidating and intemperate cross examination of this young Indigenous child witness.

[50] The defense counsel then confronted the court alleging the court was interfering with his right to fully cross exam a witness and was most reluctant to accept the direction of the court when trying to clarify evidence. This demonstrated a lack of understanding of the court's responsibility, and lack of civility on Mr. Bilton's part. It is absolutely paramount that the court interject at times to understand and clarify, so as to properly assess the evidence in a timely manner.

[51] I accept the evidence of Ms. J.M. as to when, where and how it happened. The Facebook message issue is really a red-herring as there was absolutely no corroboration whatsoever that she consented to have sexual intercourse with him if he slipped it in safely. It is a bold-faced statement by the accused which is denied by the complainant.

[52] There is no dispute from both the complainant and the young person that the complainant performed oral sex on the young person and had sexual intercourse with him. I find that it was performed under duress; I accept that he threatened to have her beaten up.

[53] The complainant`s evidence that her mouth was covered is consistent with the youth not wanting to wake the grandfather who was sleeping as both the complainant and the accused passed him when going downstairs. The accused evidence that he left the house because he was scared is understandable but his failure to elaborate or explain the reason for his fear is equally consistent with the grandfather finding out about the moral indiscretion and potential punishment for the wrongful acts of the young person.

[54] I accept the complainant's evidence that after being threatened, she was scared she did not know what to do. She expressed in court a concern that no one would believe her. She exhibited many of the Gladue factors. (Violence, substance abuse, accommodation overcrowding, fear of consequences, dysfunctional relationships, frustration with life and involvement with Child Protection authorities)

[55] The credibility of the young person's evidence has further diminished because of his admission that he had smoked twelve (12) marijuana cigarettes and had a good buzz-on when this happened. During his evidence he was admonished for swearing when describing events.

[56] The young person remembers having sex and having Ms. J.M. perform fellatio on him but his timeframes are not accepted. I reject counsel's submission that his vision of the timeframes is consistent with his age. He has a recollection but I conclude that the sequence of the sexual interaction and the particulars of the sex is clouded by his consumption of marijuana.

[57] Further, the young person cannot explain the details of how he and Ms. J.M. got downstairs as fully described by the complainant.

[58] During evidence there was absolutely no mention by either the complainant or the young person that a condom was used during sexual intercourse. Its use is inconsistent with performing forced or consensual fellatio.

[59] The complainant denied the message concerning the condom. The Crown did not possess it and there is no corroborative evidence that it ever existed or was sent.

[60] The Facebook message that the young person wanted to admit was from 2010 and not relevant to the charge before the court.

[61] For all those reasons a conviction will enter.

Released: December 21, 2015

Signed: "Justice Peter T. Bishop"