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 Identity of offender not to be published.— (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 Identity of victim or witness not to be published.— (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 Offences.— (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

Court File No.: Brampton – 14-41310

Date: 2015-02-23

Ontario Court of Justice (Central West Region)

Between:

Her Majesty the Queen

• C. Presswood, Counsel for the Crown

and

C.T.

• H. Cohen and S. Youssefi, Counsel for C.T.

Heard: January 30, February 4-5, 2015

Reasons for Judgment

Schreck J.:

I. FACTS

[1] C.T.'s mother ran an unlicensed daycare centre out of her home in Brampton for many years. Beginning in 2007, one of the children she looked after was K.S., who was approximately three years old when she first started going there. K.S.'s mother was in school at the time and K.S. attended the daycare on most weekdays during the school year and occasionally during the summer. C.T., who was 15 years old at the time K.S. began attending the daycare, was often in the home while his mother cared for the children. In 2010, K.S.'s family moved out of the area and K.S. stopped attending the daycare.

[2] In 2014, K.S.'s Grade 5 teacher had a discussion with his class about inappropriate sexual touching. The teacher told his students that if such a thing ever happened to them, it was important for them to disclose it to an adult they trusted. Following the class, K.S. who was by then nine years old, approached her teacher and told him about some incidents that occurred while she was in the care of C.T.'s mother. This was the first time she had disclosed this to anybody. The teacher reported this to the Children's Aid Society, who in turn contacted the police. The police interviewed K.S. and her mother. As a result of what they were told, they arrested C.T., who was by then 22 years old, and charged him with invitation to sexual touching contrary to s. 152 of the Criminal Code (Count 1) and with committing an indecent act by exposing his genital organs to a person under the age of 16 years, contrary to s. 173(2) of the Criminal Code (Count 2).

[3] The Crown's case relies on the testimony of K.S., who was 10 years old when she testified. She alleges that on a number of occasions while she was in the care of C.T.'s mother, he exposed his penis to her and invited her to touch it. On one occasion, he grabbed her hand and guided it to his penis. C.T. testified and denied that any of these incidents took place. The central issue at trial is credibility.

II. EVIDENCE

(a) The Case for the Crown

[4] K.S. was 10 years old and in Grade 5 at the time she gave her evidence. She resided with her mother, her parents having separated when she was an infant, but saw her father on a regular basis.

[5] In September 2007, K.S.'s mother began a community college program. Needing childcare, she approached a neighbour, L.T., who ran an unlicensed daycare in her home, and made arrangements to have her care for K.S., who was almost three years old. C.T., who was 15 years old at the time, was L.T.'s son and lived with her. K.S. was at L.T.'s house most days during the school year, but not during the summer when her mother was not in school. L.T. resumed caring for K.S. in September 2008, when she was almost four. By then, she was in Junior Kindergarten in the afternoons and L.T. would take her to school and pick her up. The same arrangement was made beginning in September 2009, when K.S. was almost five and in Senior Kindergarten. K.S. returned to L.T.'s home in September 2010, but only remained there for a month, following which her family moved out of the area.

[6] L.T. cared for four other children: A. and K., who were one year older and one year younger than K.S, respectively, and two older girls. K.S. testified that she would see C.T. in the house, usually when he was coming home.

[7] K.S. testified that she liked being at L.T.'s house. The children would engage in various games, some outdoors and some indoors. K.S. testified that whenever any of the children misbehaved, L.T. would make them have a "time out" while sitting on the stairs. When asked to give an example of the type of behaviour that would result in a "time out", K.S. gave the example of taking a piece of Lego another child was playing with. K.S. would get a "time out" about three or four times a week, which she said was comparable to the other children.

[8] According to K.S., on some occasions when she was having a "time out" on the stairs, C.T. would be upstairs. Sometimes, he would appear at the top of the stairs and tell her to come up, which she did. He would then take his penis out of his pants, hold it in one hand and whisper to her that she should touch it. K.S. testified that she did not respond, nor did she touch his penis. According to her, L.T. would usually be in the living room supervising the other children when this happened. K.S. was unable to say how many times this occurred, only that it happened more than once. On one occasion when it happened, C.T. had just come out of the shower and had a towel wrapped around him. After it had happened a few times, K.S. stopped going upstairs and tried to ignore C.T. when he spoke to her on the stairs.

[9] K.S. testified that on one occasion, she and the other children were in the basement playing with a "Wii" video game console. She recalled that the game they were playing was called "Ratatouille". L.T. had gone out to buy groceries and had left C.T. to watch the children. While playing the game, K.S. sat on the couch next to C.T., who had a blanket over him. According to her, C.T. took his penis out of his pants and whispered to her "Do you want to touch it?" He then grabbed her hand and made her touch his penis. This was the only time she touched his penis.

[10] According to K.S., she later began to see C.T. less often. The incidents where he exposed his penis did not happen the whole time she was being cared for by L.T., only when she was "a lot littler".

[11] K.S. did not tell anybody about the incidents involving C.T. for many years. She explained that at first, she did not realize it was wrong. As she grew older, she began to realize that it was wrong but did not tell anybody because she thought she might get in trouble. When asked in cross-examination why she thought she would get in trouble, she replied that she did not know. When she was in Grade 4, her teacher had a discussion with the class about sexual assault and he told them that if anything of that nature happened, it was important to tell somebody. After the class, she approached the teacher and told him what had occurred with C.T. The teacher testified and confirmed that she provided him with this information. He described her telling it to him in a "matter of fact kind of way". He then contacted the Children's Aid Society.

[12] K.S.'s mother, L.S., testified that K.S. was a good student and usually well-behaved. Her teacher described her as an average student and also viewed her as usually well-behaved. K.S.'s mother never noticed anything out of the ordinary while K.S. was being cared for by L.T. She did not recall K.S. ever being upset when she picked her up from L.T.'s home. She never noticed K.S. displaying any sexually precocious behaviour. On one occasion, she checked the browser history on K.S.'s computer and discovered that she had been viewing a pornographic website. She confronted K.S., who told her that an older friend had showed the website to her. K.S. also testified about viewing this website, on which she had seen people having intercourse and performing fellatio and cunnilingus (although she did not describe it in those words).[1]

(b) Defence Case

[13] C.T. testified on his own behalf. He is currently 23 years old, employed and living with his girlfriend. He completed high school as well as a Police Foundations program at a community college. C.T. has no criminal record.

[14] C.T. acknowledged that in 2007, he was living with his mother. She had been running a daycare business from her home ever since C.T. was a small child. He described the house they lived in as being relatively small with three levels.

[15] C.T.'s examination-in-chief was very brief. He recalled K.S. attending the daycare, although he believed her to be seven or eight years old at the time. When asked during his examination-in-chief about K.S.'s testimony that she had seen him naked, he responded "I don't think it's true". When asked what he knew about her allegation respecting the incident on the couch, he said "I don't think it's true at all" and later added that he thought it was "ridiculous". He denied exposing himself to her, interacting with her while she was having a "time out", or forcing her to touch his penis.

[16] According to C.T., his mother never left him alone in the house with the children. When asked what would happen if she needed to buy groceries, he responded that she would take all of the children with her. This was inconsistent with what he had said in a statement he made to the police at the time of his arrest, in which he had said that his mother had never left the property with the children.[2] He explained that this was an oversight on his part.

[17] In cross-examination, C.T. initially agreed that his relationship with K.S. was closer than his relationships with the other children. Later in his testimony, he resiled somewhat from this. When confronted with a statement he had made to the police at the time of his arrest in which he had said "me and [K.S.] were pretty close actually", he said that what he had meant was that she had been close to him, but he had not been close to her. He acknowledged that K.S. sometimes hugged him, but maintained that he never reacted when she did so.

[18] While he maintained that he was seldom at home because he worked a lot, he agreed that he did on occasion play with the children, including playing video games while sitting on the couch. However, according to him this took place in the living room and never in the basement, as described by K.S. He testified that he almost never spoke to any of the children about anything other than games they happened to be playing together. While playing video games, however, he did not speak to the children at all, not even to say whose turn it was in the game. If the children became too noisy, he would not tell them to be quiet. Rather, he would call his mother to come and tell them.

[19] C.T. initially testified that it was possible that while she was sitting next to him on the couch, K.S. may have accidentally brushed against his penis while she was reaching for the video game controller he was holding. According to him, he would play video games while holding the controller under a blanket because he was cold. Later in his testimony, he said that it was not possible that this had taken place.

III. ANALYSIS

[20] Only K.S. and C.T. gave evidence respecting the alleged offences. There is no issue that K.S.'s testimony, if accepted, would make out the essential elements of both offences with which C.T. is charged. While K.S.'s mother and teacher testified and confirmed collateral aspects of her account, her testimony was uncorroborated with respect to the essential elements of the offences. There is, of course, no onus on C.T. to establish his innocence. Rather, the Crown bears the onus of proving his guilt beyond a reasonable doubt. To ensure that this burden is properly applied, I intend to follow the approach set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742. I will begin by considering C.T.'s evidence and, if I believe it, he must be acquitted. Even if I do not believe C.T.'s evidence, I must consider whether it leaves me with a reasonable doubt and, if so, he must be acquitted. Even if I completely reject C.T's evidence, I must still consider whether the evidence relied on by the Crown satisfies me beyond a reasonable doubt of C.T.'s guilt. If, and only if it does can there be a finding of guilt.

[21] C.T. denied committing the offences. His testimony, however, is marked by several problems, some of which I will describe.

[22] His description of living in the same home where his mother ran a daycare but having virtually no communication with any of the children is difficult to accept. According to him, he rarely saw the children and only spoke to them if playing games with them. Even then, he would sometimes play games without saying anything. He would not even tell them to be quiet when they were noisy and would instead call his mother to come in to tell them. His entire testimony on this point seems to me to be an effort to minimize his interaction with the children and consequently his opportunity to have committed the offences.

[23] C.T.'s testimony respecting his relationship with K.S. was marked by inconsistencies. Initially during his testimony and in his statement to the police, he described himself and K.S. as being close. He then claimed that what he had meant was that she had been close to him but that he had not been close to her. Quite apart from the inconsistency, it is difficult to understand how any closeness would have developed given C.T.'s claim that he had virtually no interaction with the children.

[24] I am also troubled by C.T.'s explanation of the accidental touching of his penis while K.S. was reaching for the video game controller. C.T. initially said that it was possible that this had occurred, although he later resiled from this. In my view, his description of playing video games using a controller that he held under a blanket was not believable.

[25] C.T.'s claim that he believed K.S. to be seven or eight years old when she was in fact three or four was incredulous. There is a significant developmental difference between a three-year-old and a seven-year-old. His explanation that he was not good at telling the ages of children likewise defies credulity given that his mother operated a daycare in the home since he was a small child.

[26] Having carefully considered C.T.'s evidence, I am unable to accept it. Nor does it leave me with a reasonable doubt. This does not, however, end the matter. I must still consider the remaining evidence and determine whether it satisfies me beyond a reasonable doubt of C.T's guilt.

[27] K.S. was 10 years old when she testified and she was describing events that took place when she was between two and five years old. I must keep in mind that it is wrong to assess the evidence of children using the same approach as would be taken to assess the credibility of an adult: R. v. W.(R.), [1992] 2 S.C.R. 122 at paras. 23-26. Flaws such as an inability to remember when an event took place or the number of times that it happened may not give rise to the same credibility concerns in the case of a child than it would with an adult. At the same time, I remind myself that the fact that the Crown's case relies on the evidence of a child does not mean that I should apply a lower standard of proof. Regardless of the age of the Crown witnesses, the Crown must prove its case beyond a reasonable doubt. While there is no presumption that children are unreliable, nor is there any presumption that they are reliable and credible. In each case, the evidence must be assessed in the context of the evidence as a whole to determine whether the Crown has proven its case to the requisite standard.

[28] In accordance with orders made pursuant to ss. 486.2 and 486.1(1) of the Criminal Code, K.S. testified outside of the courtroom with a support person present. The parties and I were able to observe her on a video screen. The support person, a victim services worker, sat next to K.S. while she testified.

[29] On more than one occasion, after she was asked a question, K.S. would look in the direction of the support person before answering. She may well have been looking to the support person for assistance in answering the question, which would not be surprising, given her age. What is important, however, is that the support person, who was visible on the video screen, looked straight ahead, did not alter her expression and did nothing that could have influenced K.S.'s testimony. The only time I observed the support person communicate with K.S. was on one occasion when K.S. said something to her. The support person responded by putting her finger to her lips to signal that K.S. should not be speaking to her. In my view, the support person behaved entirely appropriately during K.S.'s testimony.

[30] In my view, K.S. testified in a straightforward manner. She was responsive to questions, unshaken in cross-examination, largely consistent, and did not seem prone to exaggeration. She did not appear to have any animus towards C.T.

[31] The defence raised several concerns respecting her testimony which it was suggested should lead me to have a reasonable doubt with respect to it and which I must consider. The first was that K.S. did not disclose her allegations until several years after the event. It was suggested that her professed reason for not doing so, that she initially did not appreciate that it was wrong and later believed that she may get in trouble, was not believable. Defence counsel pointed out that K.S. appeared to have a good relationship with her mother and would have had no reason to believe that she would have got into trouble for coming forward with her allegations.

[32] Delayed disclosure of sexual abuse allegations by children is not uncommon and is not, by itself, a basis for drawing an adverse inference, as was made clear by Major J. in R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275 at para. 65:

A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

See also R. v. L.C.T., 2012 ONCA 116, [2012] O.J. No. 778 (C.A.) at para. 96.

[33] In any event, in my view K.S.'s reasons for not disclosing make sense. While K.S. may not have had any specific reason to fear telling her mother, children do not always think rationally in the same way an adult would. She knew what had taken place was wrong and that she had been involved. In these circumstances, it is believable that she may have thought that she could somehow get into trouble.

[34] It was also suggested that K.S. might have accidentally touched C.T.'s penis, following which her imagination took over as a result of various influences, such as the viewing of pornography. I do not accept that K.S.'s memory was influenced by viewing pornography. At 10 years old, K.S. would be able to distinguish events that actually happened from those that had been imagined. Moreover, the acts she observed in the pornography she saw did not resemble what she describes C.T. doing. She testified to being shown pornography in which she saw fellatio, cunnilingus and intercourse, yet she did not allege that C.T. did anything like that with her or that he asked her to engage in such acts.

[35] It was submitted that C.T. would not have been able to do what was alleged because his mother was always around and would have seen him doing it. I do not accept this. K.S. described events that took place on the stairs. C.T.'s mother, who was usually in the living room with the other children, would not have been in a position to observe this. With respect to the incident on the couch, according to K.S., C.T.'s mother was not at home. While C.T. testified that his mother never left him alone with the children, I do not view his evidence on this point as reliable.

[36] Having carefully considered K.S.'s testimony, I find that it is credible and reliable. I find that on at least two occasions, C.T. exposed his penis to K.S. while she was on a "time out" on the stairs and asked if she wanted to touch it. I find that on one occasion, C.T. exposed his penis while sitting next to K.S. on the couch and took her hand and made her touch it.

IV. CONCLUSION

[37] With respect to Count 1, based on the evidence I accept, I am satisfied beyond a reasonable doubt that C.T. did, for a sexual purpose, invite K.S. to touch a part of his body, namely, his penis. With respect to Count 2, I am satisfied beyond a reasonable doubt that C.T. did, for a sexual purpose, expose his genital organs to K.S.

[38] K.S. described these events as happening when she was "a lot littler". She attended the daycare for the academic years beginning in September 2007, September 2008 and September 2009. She was at the daycare for the month of September 2010 and then left. I am satisfied that at least some of the incidents in which C.T. exposed his penis and attempted to have K.S. touch it occurred between August 18, 2007 and November 18, 2009, the time frame specified in the Information on which C.T. was tried.

[39] For the foregoing reasons, C.T. is found guilty on both counts.

Released: February 23, 2015

Justice P.A. Schreck

Footnotes

[1] K.S.'s mother also testified that the mother of the two boys being cared for at L.T.'s home once told her that K.S. and one of the boys had shown each other their "private parts". The boy had told his mother about this, who in turn told K.S.'s mother. K.S. was not asked about this incident. As there is no admissible evidence of this incident, it being double hearsay, I have not considered it.

[2] This statement was the subject of a voluntariness voir dire, at the conclusion of which some of the statement was admitted and the remainder excluded.