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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2016-06-17
Court File No.: Ottawa 15-SA5053
Between:
Her Majesty the Queen
— and —
J. (L.W.)
Before: Justice Doody
Heard on: May 30-31, 2016
Reasons for Judgment released on: June 17, 2016
Counsel:
Malcolm Savage — counsel for the Crown
Richard Morris — counsel for the defendant J. (L.W.)
DOODY J.:
Introduction
[1] The defendant is charged with sexual assault and sexual interference.
[2] On the night of May 2 to May 3, 2015, the complainant, T.B., a fifteen year old young woman (16 years old at the time of trial), was at a "sleepover" at the house of her friend, B. (16 years old at the time of trial). Their mutual friend S. also took part in the sleepover. Also present in the house that night were the defendant; B.'s mother, the defendant's partner T.M. (with whom he had had a relationship for about five years and with whom he had been living for a few months); T.M.'s 3 other children aged 14, 10, and 7 years; the defendant's son; and the defendant's sister and her son.
[3] On May 2, 2015, the defendant had left home at about six a.m. to travel to Gatineau where he was working at a residence as part of a team installing a new roof. They worked late, and it was a hot day. He returned home around 9:30 p.m., too late to take part in a family barbecue to which his sister and her son had been invited, and for which he had provided the food. The defendant and T.M. went to their bedroom along with the defendant's sister to have some drinks and watch boxing on television. The boxing matches began around ten p.m. At some point the defendant's sister left the bedroom and went into the living room, where she and her son spent the night sleeping on the floor.
[4] The three young women on the sleepover – the complainant, B., and S. – had been together most of the day, initially at the house where they spent the night, then to a wooded area nearby for a "bush party" at which they had smoked some marijuana, and then back at the house for the barbecue. They went to B.'s bedroom shortly after the barbecue broke up when it was becoming dark. At some point they smoked more marijuana in the bedroom. They spent the night together, all three sleeping in the same bed.
[5] The complainant testified that when she woke up sometime around 4:40 in the morning she realized that the defendant had two fingers inserted up one leg of her shorts, under her underwear, and was touching her pubic area. It was her evidence that when she opened her eyes, the defendant said "fuck", dropped a cellphone he had in his hand, then picked the phone up and left the room. She also testified that a short time later she saw the defendant walk by the door and look in.
[6] The defendant testified and denied going into her room at all that night.
[7] I must determine two significant issues:
(a) whether the Crown has met its onus to prove the facts that are required for a conviction on each of the two charges, and
(b) whether, as a matter of law, the Crown is required to prove that the defendant knew that the complainant was under the age of 16 years in order to obtain a conviction on the charge of sexual interference.
Legal Framework
[8] The defendant is presumed to be innocent and the Crown must prove, beyond a reasonable doubt, each and every element of the offence. It is not sufficient that I simply choose which of their evidence I find more believable. Furthermore, it would not be proper for me to find the defendant guilty solely as the result of a finding by me that I do not believe his evidence (if I were to make such a finding).
[9] What I am required to do, as per R. v. W. (D.), [1991] 1 S.C.R. 742, is determine whether I believe the defendant's evidence. If I do, I must acquit him. Even if I do not believe his evidence, I must acquit him if his evidence leaves me in a state of reasonable doubt. If I am not left in doubt by his evidence, I must determine whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt of the defendant's guilt. If not, I must acquit.
EVIDENCE OF DEFENDANT
[10] The defendant works as a roofer. He testified that he had left home at about 6 a.m. on Saturday May 2, to start work at 7 a.m. on a large roof in Gatineau. He was on the job site 10 or 12 hours, until 8:30 or 9 o'clock in the evening. The workers had a beer at the job site before leaving to come home. He had planned a family barbecue for that evening but the homeowner and his boss wanted to finish the job that day. Consequently, he missed the barbecue and arrived home about 9:30 or 10:00 p.m. The food from the barbecue was in the house when he got home. He ate some of the leftover food in the kitchen. His partner T.M. (with whom he had had a relationship for five years and been living with for a few months) and his sister had already started drinking, whiskey mixed with Coke, before he got there.
[11] He testified that he and T.M. had planned to watch some boxing matches on television with his sister. The three of them went to the bedroom the defendant shared with T.M. to watch the fights, which started about ten p.m. He showered and got out of the shower after the fights started. T.M. mixed him one drink while he was in the shower, and another drink later. He never mixed a drink for himself. When asked how strong the drinks were, he testified that they were "normal". He testified that he took the second drink slower, just taking slow sips, because it had been a long day. He said that T.M. and his sister were drinking the same thing.
Defendant's Alcohol Consumption
[12] He testified that the fights usually lasted about two hours; a little longer if one of the fights went the distance. The main fight went a full twelve rounds, so the fights probably finished around 12:30 or so. At the end of the fight he was still sipping on his second drink, which he finished 15 minutes or a half hour later. In cross examination, however, he admitted having given a statement to the police on May 3 in which he had said that he had had a "few glasses" of whiskey.
[13] When asked if he was drunk, he testified that he was "more tired than anything" and that he was "maybe a little drunk" but he knows his tolerance, and he was "definitely not drunk". It was his evidence that at no point that evening was he drunk. In cross examination, he testified that he was "kind of intoxicated" but "nothing crazy or nothing like that."
Defendant's Visit to Washroom
[14] He testified that after the fights were over, his sister went off to sleep on the floor of the living room beside her son. He and T.M. watched YouTube videos and he went to the washroom around 1:00 or 1:30 a.m. He estimated that this was around 30 to 45 minutes after the fights ended. He urinated, washed his hands, and checked on his 11 year old son who shares a room with one of T.M.'s sons. His son was not in that bedroom and he found him in the living room playing video games with T.M.'s daughter E. He then checked on his sister, who was trying to put her own son to sleep. He then returned to the bedroom and fell asleep after watching videos on television for an hour or an hour and a half.
Defendant's Denial of Entering B.'s Bedroom or Encountering Complainant
[15] He denied checking on the 3 girls who were having a sleepover in the bedroom of B., T.M.'s daughter or going into B.'s bedroom. He testified that he had no contact with the complainant or B.'s other friend, S., that evening and night. He said that it was not possible that he had gone into their room without remembering doing so as a result of his being drunk because he was not drunk.
Defendant's Interaction with B. During the Night
[16] He testified that he had seen B. only once that night. He said that she had come into the bedroom where they were watching the fights. He wanted something from the store which he thought he recalled was mix for the drinks and he gave B. a $100 bill to get it. She came back with change and the pop.
No Past Relationship with Complainant
[17] It was his evidence that he had never spoken to the complainant. The only near contact he had had with her was when he saw her once in the street with T.M.
T.M.'s Cell Phone
[18] In cross examination, he testified that he did not own a cell phone at the time; if he needed to use a phone, he used T.M.'s phone. That happened very rarely and he would never actually have it on him. If he left the house he would not take the phone. The children, however, frequently used T.M.'s phone. He said that they used it to, among other things, play games. He testified "everybody had it, really".
Defendant's Evidence About Balance of Night
[19] The defendant testified that once he returned to his and T.M.'s bedroom, he did not leave it again before he was awoken when "everyone was yelling around like crazy". In cross-examination, he testified that he had watched the videos for an hour or an hour and a half or even two hours (admitting that he was not looking at a clock), and that he fell asleep while he and T.M. were watching the videos. He had no memory of B. coming into their bedroom shortly before that.
EVIDENCE OF T.M.
[20] T.M. testified that the defendant returned home from a long day of work after dark, probably around 9:30 p.m. The barbecue had ended and all three of the complainant, T.M.'s daughter B., and their friend S. were already in B.'s room. She described the defendant as being tired. They had planned to watch the fights in her bedroom.
Defendant's Alcohol Consumption
[21] T.M. testified that they were drinking Forty Creek whiskey and had a 40 ounce bottle. She and the defendant's sister were not drinking during the barbecue. She estimated that she had had about five glasses, that she was pouring the drinks, and that everyone had pretty much an equal share. More than half the bottle was consumed among the three of them.
[22] During examination in chief by Crown counsel, she testified that after the defendant's sister had left the bedroom to go to the living room, after the fights had ended, the defendant was intoxicated, indicating that he had had a long day working in the heat. She also testified that they were drinking after the fights ended at about midnight or one o'clock, and that they had a "few drinks" thereafter. It was her evidence that some of the 40 ounce bottle of whiskey, she thought less than half, was left over the next day. During re-examination, she was adamant that the defendant was drunk.
Defendant's Visit to Washroom
[23] She testified that at one point, the defendant left the room and went to the washroom, which is right next to her bedroom. She could hear him urinating. He then came back to the room "right away". She initially testified that he was gone "not that long – maybe a couple of minutes maybe five minutes."
[24] T.M. gave contradictory evidence about how much time had elapsed between the defendant leaving her bedroom and B. coming in to tell her that the complainant had said something had happened. She gave the following evidence in examination in chief:
Q. How long was he gone for?
A. He wasn't gone for that long maybe a couple of minutes maybe five minutes.
Q. What happened after that?
A. He came to the room and he was passing out. And then that was that. About an hour later B. came to my door and she knocked and then I came to the door and she told me that [the complainant] said that someone was at the door staring at her … [emphasis added]
[25] In cross examination by defence counsel, T.M. testified that the fights ended around 12:30 or 1:00 a.m; that the defendant had left the bedroom shortly after the fights ended; and that she was "pretty sure" and then "100% sure" that he had not left the bedroom at five o'clock in the morning. She was "pretty sure" that he had not left the bedroom on any other occasion and that she herself had not slept all night. In re-examination, she testified that "from what I remember" it was a few hours in between the washroom visit and the time the police came.
[26] Crown counsel obtained leave under s. 9(2) of the Canada Evidence Act to cross examine T.M. on a statement she had provided to the police. In the statement she gave the following answers to the following questions:
Q. … did you mention that he left to go to the bathroom?
A. ya
Q. Do you recall what time that was at?
A. eh, I don't know, maybe a couple of hours before that? An hour before that.
Q. Before?
A. Before the police came and stuff.
Q. Ok. And eh, how long do you think he was gone for?
A. I don't know, not that long. Maybe 5 minutes.
Q. Ok.
A. He came and he says, he said he went to check on [his sister and her son] and then he came and sat down.
Q. Ok and how long after that did [B.] come to get you?
A. Eh, (inaudible) like maybe in I don't know, within the hour?
[27] During cross examination by Crown counsel, T.M. admitted making the statements set out above but said that they were incorrect. She admitted that the statement was made under oath and she must have thought that she was telling the truth at the time but she denied that the statement was true.
[28] Since T.M. did not adopt what she had said in the statement, that B. had come to her bedroom "within the hour" of the defendant going to the washroom (or, to put it another way, that the defendant had gone to the washroom "a couple of hours" or "an hour" before the police came) I cannot use that statement as the basis for a finding of fact about the timing. I can, however, use the inconsistency between the statement to the police and her evidence in initial reexamination by Crown counsel that it was a "few hours" between those two events as a basis to cast doubt on the credibility of that trial evidence. Furthermore, she had already testified (as part of a spontaneous statement and not in answer to a specific question by Crown counsel) during her examination in chief that B. came to her door "about an hour" after the washroom trip.
Interaction with B. During the Night
[29] T.M. testified that she had not seen B. at all that night (before she came into their bedroom just before the police came) and that that was unusual.
T.M.'s Cell Phone
[30] T.M. testified that she owned a cellphone at the time. She initially testified, in response to Crown counsel's questions in examination in chief, that she always has her cellphone with her. She was then given an opportunity to refresh her memory by reviewing her statement given to the police the morning of the incident. After seeing the statement, she testified that her daughter B. has her phone "every once in a while" and that it was possible that she had it that night. In cross examination by defence counsel, he pointed out that in the statement she had said, when asked where her phone was, "I think B[.] had it, I think". She agreed with defence counsel, in cross-examination, that her memory at the time of trial was the same as her memory at the time of the statement – that it is possible that B. had the phone that night but it is equally possible that she did not.
B.'s Entry into Bedroom
[31] At some point her daughter B. came to her door. B. said that the complainant had said that someone was at the door staring at her and that something had happened. She gave B. a hug and the two of them went to B.'s bedroom, where the complainant spoke to her. Shortly thereafter a man and woman came to the door of her house, quite upset. The police came. The complainant left. She thought that the police came around five in the morning, although she did not have a clock.
EVIDENCE OF E. RE TIMING OF COMPLAINT
[32] E. is the sister of the complainant's mother – the complainant's aunt. She testified that she was up around 4 a.m. on May 3 feeding her newborn. She sent the complainant a message on Facebook. The complainant responded with E.'s name a few times and then wrote that she was scared. They then had a "conversation" over Facebook in which the complainant disclosed an assault and said that she was in a house across the street from the house where she lived with her mother (and where her grandmother, E.'s mother, was spending the night). E. told her she should leave the house immediately and the complainant responded that she could not because the man who had assaulted her was still in the house.
[33] E. testified that she was trying to call her mother (the complainant's grandmother) and "finally got hold" of her. This took her, in her evidence, less than a half hour. She explained that she had had to charge her cell phone. She drove to her sister's house, arriving about 25 minutes later, a time she estimated to be about 5:30. When she arrived, the police were already there.
[34] I cannot rely on E.'s evidence that the complainant told her that she had been assaulted as evidence that that statement was true, or as corroboration of the evidence the complainant gave before me. I can, however, rely on it as part of the narrative to establish how and when a complaint was made. (R. v. Dinardo, 2008 SCC 24 at para. 37; [2008] 1 S.C.R. 788)
EVIDENCE OF B.
[35] B. is T.M.'s daughter. At the time of the alleged assault, she was 15 years old. She is now 16. She was called by the defence. She testified that on May 2, a group of about 7 of her friends, including the complainant and S., gathered in her backyard and then went to a "bush party" in a wooded area near her home around 2 or 3 o'clock in the afternoon. They smoked some marijuana at the party, but did not consume any alcohol. They returned to the house around 8 or 9 p.m., and ate quickly at the barbecue in the backyard. She then went into her bedroom with the complainant and S., where they spent the night.
[36] B. testified that the defendant was in the backyard after they returned to the house from the bush party, around 9 p.m. He was eating in the backyard. She and the others had already finished eating. When pressed on this, she testified that the barbecue was finished by the time the defendant arrived home, but there were some people eating.
Marijuana Smoking in the Bedroom
[37] At some point during the evening or night, she and the other two young women smoked some more marijuana in her bedroom. She testified that they did not have much marijuana left after the bush party – "maybe like one gram".
B. Passed Out with Phone in Her Hand
[38] She testified that she passed out because she was too high. When asked when she had passed out, she testified initially that it was "probably" around 10 p.m. and then said it was "like later on in the evening".
[39] It was her evidence that she passed out with her phone in her hand.
She Did Not Leave the Bedroom During the Night
[40] She testified that, other than going to the washroom, she did not leave her bedroom until the next morning. She was asked whether she had been given money to buy pop, and whether she had left the house to go to the store. She denied both.
B. Awoke and Saw Complainant at B.'s Computer
[41] It was B.'s evidence that she was awakened by S. tapping her. S. told her what the complainant had said happened. The complainant was quite upset and on her computer. B. asked her what was wrong and she told her what had happened. B. then went into her mother's bedroom. Her mother was awake, as was the defendant. They were talking to each other and watching something on the television. She could not hear what they were saying.
EVIDENCE OF COMPLAINANT
[42] The complainant was 16 years old at the time of trial; 15 on May 3, 2015. She testified via closed circuit television under a s. 486.2 order. The defence consented to this order, which is mandatory unless the judge is of the opinion that the order would interfere with the proper administration of justice.
[43] The complainant was interviewed by a detective with the Ottawa Police Service at 9:50 a.m. on May 3, 2015, the day of the alleged offence, about five hours after the police arrived at the scene of the alleged assault. The interview was videotaped. The complainant adopted the contents of the video recording during her examination by Crown counsel. I issued an order, consented to by the defence, under s. 715.1 admitting the video recording into evidence. That section provides that the video is admissible into evidence if it is adopted by a witness under the age of 18 years and it was made within a reasonable time after the alleged offence unless the judge is of the opinion that its admission would interfere with the proper administration of justice.
[44] There is no basis for such an opinion. The interview was conducted very shortly after the events. The video image and audio of the complainant's testimony was clear. The screen displaying the complainant's evidence was mounted on the dais right in front of me. In my view, I was better able to observe the complainant and the manner in which she gave her evidence than I am of a witness giving evidence in the witness box, seated beside and below me. The questions were not leading. The complainant was told at the beginning of the interview that it was important that she give all the facts "good and bad". She was told twice that it was important that she tell the truth. It was clear that she understood the questions and was attempting to answer them.
[45] Defence counsel submitted that I ought to be careful in accepting the complainant's evidence because of the difficulty in ascertaining her demeanour over the audio-video link and because she adopted the video-taped statement. I reject this submission. For one thing, such an approach would undermine the purpose of the statutory provisions authorizing evidence to be received in this way.
[46] In any event, as I have indicated, my ability to view the demeanour of the complainant (for the limited utility of demeanour in determining credibility) was greater than it is for a witness testifying in the courtroom.
[47] Furthermore, a videotaped statement made shortly after the event is more likely to be accurate, particularly with young witnesses, than testimony given a long time after. As Cory J. wrote on behalf of the Supreme Court of Canada in R. v. F. (C.C.), (1997), 120 C.C.C. (3d) 225 at para. 19:
19 It will be self-evident to every observant parent and to all who have worked closely with young people that children, even more than adults, will have a better recollection of events shortly after they occurred than they will some weeks, months or years later. The younger the child, the more pronounced will this be. Indeed to state this simply expresses the observations of most Canadians. It is a common experience that anyone, and particularly children, will have a better recollection of events closer to their occurrence than he or she will later on. (See, e.g., Rhona Flin & J.R. Spencer, "Do Children Forget Faster?", [1991] Crim L.R. 189, at p. 190.) It follows that the videotape which is made within a reasonable time after the alleged offence and which describes the act will almost inevitably reflect a more accurate recollection of events than will testimony given later at trial. Thus the section enhances the ability of a court to find the truth by preserving a very recent recollection of the event in question.
[48] I intend to treat the evidence of the complainant, including what she said in the videotaped statement, in the same manner as I would had it been given in the courtroom in response to questions put by counsel before me. In doing so, I am also alive to the words of Wilson J. in R. v. W.(R.), [1992] S.C.J. No. 56 at paragraphs 25 and 26, that we must take a common sense approach to the evidence of child witnesses and that the presence of inconsistencies, especially on peripheral matters, must be considered in the context of the age of the witness at the time of the alleged events and the age of the witness at the time of testifying. That having been said, the complainant was not a very young witness, having been 15 at the time of the alleged offences and 16 at the time of the trial, and the events were not long in the past. Furthermore, she was clearly intelligent and appeared emotionally mature. I am not inclined to treat her evidence significantly differently than I would the evidence of an adult.
Complainant's Evidence About the Events in Issue
[49] The complainant indicated in her statement that they had been at a bush party and returned to the house around 8 o'clock.
[50] The complainant testified in her video-taped statement as follows:
A. Ya so we were just gonna have a sleep-over and like eat BBQ stuff and eh, and then so we went to bed around like 10:30 and then eh, we like shut the door and turned off the lights and then we were just like passed out. And then I woke up and the door was open and the lights were on and I was, and then like I saw him like in front of me and he was like, his hands were in my pants, like my underwear.
Q. ok
A. like my crotch area.
Q. aha
A. and then eh, like he saw my eyes open so he was like Fuck and then like he like walked out really quickly and he like dropped his phone and then like [1] picked it up and then walked out and then kind of closed the door but it was still kind of open. So then like I tried to go back to sleep and like I kind of curled up beside [B.] and then like I saw him try to open the door again and then I got like really scared so like I eh, like after he like left again, I got up and I closed the door. And then eh, I went, because I didn't have WiFi on my phone I went to [B.'s] laptop and I like opened it and I went on Facebook and I messaged my aunt [E.] and eh, she, we were talking and I told her what happened and then she said to call like, like call my mom but like I don't like have service on my phone.
Q. ah
A. like it's not hooked up. It's just like an iPod.
Q. aha
A. so ya, then she said ok well, I'll call and like she was like (inaudible) like she was like ok well I'm coming right now so she called my mom and then she like started driving to my house. And then eh, so the door opened like again and then I was like get out, cause like I was really scared and like I'm not sure if he was like standing outside the door and he opened it or if it was like wind that like opened it. I'm not, like really sure cause I didn't really see him but like I was like get out and then it woke up [B.] and [S.]. And like I was gonna wake them up before but like I was just like I don't know, kind of wanted to leave but then I was scared that maybe he was like waiting outside the door or like, like sitting in, in the living room or something and then he would see me leaving. So I was like scared to leave the room. So like, eh, I woke them up or they woke up after and they, I told them what happened and they were just like really shocked and they were just like, [S.] was just like, what the fuck? And then eh, [B.] like got up, out of the bed and she got her mom [T.M.] and eh, (clears throat) I told [T.M.] what happened and then she hugged me and she was just like it's ok, it's ok. And then that's when my mom barged in and she was like where the fuck's my daughter dah, dah. And then I, I came out and then … and then I went home cause I like, live right across the street.
[51] She testified that she was lying on B.'s bed with B. and S., with the complainant in the middle of the three girls. It was her evidence that she was laying on her back and awoke when the lights were on. She said that she could "see red" under her eyelids. When they went to bed they had turned the lights off and shut the door. She testified that she woke up because of the light, and not as a result of being touched.
[52] She was wearing short jean shorts. She testified that when she woke up, the defendant had "maybe two fingers" up the leg of her shorts and under her underwear. His fingers were in her crotch area but he had not penetrated her.
[53] The complainant said in her statement that the defendant turned to leave when she woke up, then dropped his phone, picked it up, and then left without closing the door completely. She said:
Q. ok. So he leaves, the door is still sort of open, the lights are on and then what do you do?
A. eh, I like tried to go back to bed like I pulled the blanket up and then I was like kind of like cuddling [B.] and then I saw him like kind of walk passed and like peek his head in and then that's when I got like super scared and then I was just processing what happened and like I was thinking to myself maybe like he fixed my underwear in case like the kids were walking by and like saw and then I was, the door was closed so why would that happen? And like why it, like it's like (inaudible) just like saw like I don't know, some things like that like I don't remember, my legs weren't open or anything but like ya, I would just like throw a blanket on the person, I wouldn't like try to fix their underwear or something.
Complainant on B.'s Computer When She Woke B. and S.
[54] She estimated that about three minutes elapsed between the time the defendant left the room and the time when she saw him walk by the door. She then got out of bed, closed the door completely, and went onto B.'s laptop computer and sent her aunt a message. Shortly thereafter, the door opened again. She did not see the defendant that time, but she was frightened and woke B. and S.
Time Between the Defendant Entering the Young Women's Room and the Time B. Told Her Mother About the Complaint
[55] The complainant testified that she went on the computer at 4:45 a.m. and everyone was awake about a half hour later, around 5:10 or so.
Marijuana Smoking
[56] In cross-examination, the complainant admitted that, at the bush party, she and the others had smoked marijuana. She hesitated only briefly before making this admission. She admitted that when she got back to the house around 8 p.m. she had a "pretty good high". She also admitted that when they were in the bedroom, she had a short nap and then smoked more marijuana with S. and B. It was her evidence that they had only a small amount, just a "tiny bit left" of a gram.
[57] When asked if the second round of smoking marijuana had "added to the buzz" she was enjoying from the first round at the bush party, she demurred, saying that the high from marijuana lasts only a half hour to an hour and they had only .3 to .5 of a gram in the bedroom so it was only a "mild buzz". In closing submissions, defence counsel admitted that he could not realistically submit that the complainant was still affected by the marijuana in the morning.
No Past Relationship with Defendant
[58] The complainant gave similar evidence on this point as the defendant. She said that she had only met the defendant once or twice before and this was the first time that he was in the house when she was sleeping over. She said she never really talked to him. He was not there for the barbecue.
[59] In cross-examination, she agreed with defence counsel that the most she might have said to the defendant was "maybe a hi" and that she did not know him at all; she had no concerns about him at all.
ANALYSIS
Factual Issues
[60] I must determine whether each of the necessary factual element and mental element of the crimes charged has been established beyond a reasonable doubt. If the factual element of sexual assault as described below has been established, the mental element will follow as a logical conclusion in the circumstances of this case, subject to an issue raised by defence with respect to the defendant's knowledge of the complainant's age for the offence of sexual interference. I will deal with this latter point after the factual analysis.
[61] As I have indicated, I am required to determine whether the Crown has proven beyond a reasonable doubt that the defendant intentionally committed acts which constituted the offences charged. Sexual assault is the intentional infliction of force against the complainant in circumstances of a sexual nature such that her sexual integrity was violated. Sexual interference is the direct or indirect touching for a sexual purpose of any part of the body of a person under the age of 16 years.
[62] In the circumstances of this case, that means that I must determine if the Crown has proven beyond a reasonable doubt that the defendant inserted two fingers under the shorts and underwear of the complainant and touched her on her crotch. I am satisfied that, if that is proven, the circumstances were of a sexual nature such that the complainant's sexual integrity was violated. Similarly, I am satisfied that if those facts are proven they will establish that the touching was for a sexual purpose.
[63] The importance of the principles of presumption of innocence and the necessity of the Crown to prove the defendant's guilt beyond a reasonable doubt requires that I conduct this analysis in a particular way. First, I must decide if I believe the evidence of the defendant. If so, I must acquit. Even if I do not believe that evidence, I must determine whether it leaves me in a state of reasonable doubt as to the defendant's guilt. If so, I must acquit. Finally, if that is not so, I must determine whether, on the balance of the evidence, the Crown has established the defendant's guilt beyond a reasonable doubt.
[64] I am entitled to assess the credibility of the defendant by considering it in relation to and by comparing it with the evidence of other witnesses, including the complainant. I must be cautious in doing so, however. It would be an error to treat the matter as concluded once the comparative assessment of credibility is completed, because that would miss the third and crucial step in the W.D. analysis. The central concern in this framework of analysis is to highlight that mere unacceptance or disbelief of a defendant's evidence does not satisfy the burden of proof which lies heavily on the Crown. And it is an error to use disbelief of the accused's evidence as positive proof of guilt by moving directly from that disbelief to a finding of guilt. A Court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the defendant's guilt. (R. v. Thomas, 2012 ONSC 6653, [2012] O.J. No. 5692)
[65] The defendant's evidence was contradicted by a number of other witnesses. Some examples are:
He testified that he had no more than 2 drinks which he sipped slowly; he had earlier told the police that he had "a few glasses" of whiskey; T.M. testified that she, the defendant and the defendant's sister all had about the same to drink and among them drank more than half a 40 ounce bottle of whiskey, the equivalent of approximately 5 drinks each at a minimum, which is the amount that T.M. estimated she had consumed;
He testified that he finished his second and last drink a half hour after the end of the fights; T.M. testified that they had a few drinks after the fights ended;
He testified that T.M. and the defendant's sister had started to drink before he got there; this was denied by T.M.;
He testified that he was "definitely not drunk" although admitted to being "kind of intoxicated" but "nothing crazy or nothing like that"; T.M. testified with some emphasis that he was drunk;
He testified that he slept until "everyone was yelling around like crazy" and had no memory of B. having entered his bedroom before that occurred; B. testified that he was awake when she went into the bedroom to tell her mother about the complainant's allegation that she had been assaulted by the defendant.
[66] Perhaps the most significant discrepancy between the defendant's evidence and that of other witnesses is with respect to his evidence that he asked B. to go to the store to get mix for the drinks and gave her a $100 bill for the purpose. B. denied that this happened. T.M.'s evidence was that she had not seen B. at all that night until she entered the bedroom in the morning to tell her about the complainant's allegations. If this had happened, it would have stuck in everyone's memory – a $100 bill to buy soft drinks is not something that one would slip one's mind.
[67] There were also discrepancies in respect of the time between the defendant's washroom visit and the time that B. raised the alarm. The defendant testified that he watched the videos for an hour and a half to two hours and then fell asleep, not waking until shortly before the police arrived. The police arrived sometime between approximately 5:00 a.m. and 5:30 a.m. on the evidence of E., which I accept. Since the fights ended around 12:30, on the evidence of both T.M. and the defendant, the defendant's evidence would have him sleeping for approximately two and a half to three hours.
[68] T.M. testified initially, without being asked a specific question, that B. came to the door of her bedroom "about an hour" after the defendant had gone to the washroom. She later testified in cross examination that this happened about three hours after the defendant went to the washroom. This evidence was contrary to the statement she had given to the police. It was clear to me, from her demeanour and her willingness to accede to suggestions in cross-examination by defence counsel, that T.M. wanted to assist the defendant with her evidence. Given this desire, and the spontaneous manner of her original evidence that the delay was only an hour, I conclude that the earlier evidence was credible and T.M. believes that there was a gap of only about an hour between the defendant's leaving the bedroom and B. reporting the complainant's allegation. Since the evidence was that there was no clock in the bedroom, this estimate is clearly not precise.
[69] A short time period between the defendant leaving the bedroom and B. reporting the complainant's allegations to her mother is consistent with the evidence of both B. and the complainant. The complainant testified that after she woke and the defendant left the bedroom, she remained in bed and thought about what had happened. A few minutes later the defendant walked by and she got out of bed, closed the door, and went to B.'s computer where she communicated with her aunt. B.'s evidence is that she was awakened by S., who had seen the complainant at the computer. B. and S. then spoke to the complainant and B. then went to see her mother. The complainant testified that she went on the computer at 4:45 and about a half hour later, around 5:10, everyone was awake.
[70] The defendant's evidence showed that he was unable to accurately estimate time or how long between events. He testified that he was on the job site 10 or 12 hours on May 2. He also testified, as was corroborated by T.M., that he arrived at the job site (about an hour's drive from his house) at 7:00 a.m. and left at 8:30 or 9:00 p.m., a time span of 13 ½ to 14 hours.
[71] In considering whether to believe the defendant, it is proper for me to consider the complainant's evidence. (R. v. J.J.R.D., [2006] O.J. No. 4749, 215 C.C.C. (3d) 252 at para. 53 (C.A.); R. v. T.M., 2014 ONCA 854; [2014] O.J. No. 5735 at para. 68)
[72] The evidence of the complainant is corroborated in a number of details by other evidence. Some examples are:
her evidence that she was on the computer (and not her phone) to send a message to her aunt when B. awoke is corroborated by B.'s evidence;
her evidence that the three young women smoked only a small amount of marijuana in the bedroom is corroborated by B.'s evidence;
her evidence as to the time of the complaint being made is corroborated by E., T.M., and B.
[73] Defence counsel submitted that the complainant's evidence that the defendant picked up a cell phone in the bedroom after she awoke is contradicted by evidence that T.M. owned the only cell phone in the house and it was in her possession all evening. That is not the evidence. T.M. testified, after cross-examination on a prior inconsistent statement, that B. (who was lying beside the complainant on the bed) might have had her phone that night. The defendant testified that T.M.'s cell phone was frequently used by all the children in the house. It is therefore, on the evidence, possible that T.M.'s cell phone was with B. that night and available for the defendant to pick up. While I cannot conclude that that was the case, and therefore cannot use the phone evidence as corroboration of the complainant's evidence, I can and do rely on it to refute the defence submission that the complainant's evidence on this point could not be accurate.
[74] In fact, the complainant's evidence was not contradicted in any material way by any evidence other than that of the defendant.
[75] Defence counsel also submitted that it is very unlikely that the defendant would engage in the extremely risky behaviour of entering a room where three young women were sleeping side by side on a bed, turn the lights on, and sexually assault one of them. He also submitted that the evidence does not support a finding that the defendant was intoxicated to such an extent that he would run such a risk. I do not accept these submissions. On the evidence as set out above, I conclude that the defendant was intoxicated. He had worked an extremely long day in the hot sun before starting to drink, and continued to drink for a number of hours.
[76] The complainant was a thoughtful witness, by which I mean that she carefully considered questions before responding to them. She did not quickly agree with suggestions put to her in cross-examination, but did agree with some questions which put her in a less than positive light. The questions about the marijuana smoking are an example.
[77] Both the defendant and the complainant testified that they barely knew each other. That being the case, there could have been no motive for the complainant to invent these allegations. While there is no onus on a defendant to prove that a complainant had a motive to fabricate, the absence of any motive is a proper matter for consideration in the course of the fact-finding process. (R. v. Jackson, [1995] O.J. No. 2471 (C.A.); R. v. Y. (K.K.), (1994), [[1995] O.J. No. 80 (C.A.)])
[78] The complainant's evidence was corroborated in a number of respects, as I have indicated. It was internally and externally consistent.
[79] She gave a number of details in her evidence which would have been unnecessary had she been fabricating them. Not all of these details would have been seen by her as helpful if she were attempting to mislead the court.
[80] She was not shaken in any manner on cross-examination.
[81] The complainant's evidence was credible. She believes it to be true. I also conclude that it is reliable. She woke up and was sufficiently awake to know what was happening to her. As defence counsel admitted, her marijuana smoking did not affect her ability to give reliable testimony.
[82] For all of these reasons, I do not believe the evidence of the defendant. Nor do I have a reasonable doubt as to whether his evidence is true.
[83] I accept the evidence of the complainant, for the reasons set out above.
[84] I accept the initial evidence of T.M. that the defendant left the bedroom an hour or less before B. came in to tell her of the complainant's allegations. Given the lack of a clock and the inherent uncertainties about estimating time, I accept that that time was probably less than an hour and more like the half hour estimated by the complainant. I accept the evidence of T.M. that the defendant was drunk. I accept the evidence of B. and T.M. that B. did not go into her mother's bedroom until after the complainant told her what the defendant had done to her.
[85] For the reasons set out, and after considering all of the evidence, I am left with no doubt that the defendant entered the room in which the complainant was sleeping and reached under the leg of her shorts and under her underwear, touching her on her crotch.
[86] I find the defendant guilty of sexual assault.
ISSUE RELATING TO THE DEFENDANT'S KNOWLEDGE OF AGE OF COMPLAINANT ON SEXUAL INTERFERENCE CHARGE
[87] Defence counsel submitted that the Crown had led no evidence that the defendant knew that the complainant was under the age of sixteen years at the time of the offence and that, as a result, that charge had to be dismissed. That submission requires me to consider what is required by way of evidence of the defendant's knowledge of the complainant's age for the offence of sexual interference.
[88] Section 151 of the Criminal Code provides that "every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years" is guilty of the offence of sexual interference.
[89] Subsection 150.1(4) of the Criminal Code provides that
it is not a defence to a charge under [this section, among others] that the accused believed that the complainant was 16 years of age or more at the time the offence was alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.
[90] The issue is whether the Crown is required to present positive proof that the defendant knew that the complainant was under the age of 16 when the defendant testifies that he did not commit the act alleged and does not provide any evidence that he believed that the complainant was 16 years of age or more. In my view, there is no such obligation on the Crown.
[91] The Supreme Court of Canada, in R. v. Nguyen, [1990] 2 S.C.R. 906 at para. 31, described the effect of s. 150.1(4) as "allowing a due diligence defence".
[92] The Ontario Court of Appeal has held, in R. v. Duran, 2013 ONCA 343; [2013] O.J. No. 2388 and R. v. Saliba, 2013 ONCA 661; [2013] O.J. No. 5887, that the Crown has the onus to prove beyond a reasonable doubt that the defendant did not take all reasonable steps to learn the true age of the complainants. If it does not meet that onus the defendant must be acquitted.
[93] In both of those cases, however, each of the defendants introduced evidence that he believed that the complainants were over the requisite age and explained the basis for that belief. In the case before me, the defendant has introduced no evidence as to his belief in the age of the complainant or what steps he took to establish that belief. In fact, he testified that he barely knew her and had never spoken with her.
[94] Similar statutory language is contained in s. 172.1 dealing with the offence of internet luring. Subsection 172.1(1) creates 3 separate offences when a person, by means of telecommunication, communicates with a person "who is, or who the accused believes is, under the age" of 18, 16, and 14 years for the purpose of facilitating the commission of specified offences. Subsection 172.1(4) provides:
It is not a defence to a charge under paragraph 1(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.
[95] In R. v. Levigne, [2010] 2 S.C.R. 3, 2010 SCC 25 and in R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, the Supreme Court held that it was not helpful to determine whether knowledge by the defendant of the age of the person with whom he or she is dealing is part of the actus reus or the mens rea of the offence of internet luring. Nor, the Court held, was it of any assistance to characterize a claim by the defendant about his or her belief in the age of the person with whom he or she was dealing as a "mistake of fact" defence rather than an absence of proof of an essential element. Instead, it is better to adopt language which accurately conveys the effect of the law without in itself imposing an unnecessary burden of translation and explanation.
[96] In Levigne, at para. 32, Fish J., for the Court, held that s. 172.1(4) places an "evidential burden" on the defendant on the issue of his or her belief as to the age of the person and the steps taken to support that belief. As the Court held, the "evidential burden is on the accused but the persuasive burden is on the Crown." Where the evidential burden of the accused has been discharged, he or she must be acquitted if the trier of fact is left with a reasonable doubt whether the accused in fact believed that the person with whom he or she is dealing was not underage.
[97] Applying that analysis to the offence of sexual interference, and mindful of the Court's characterization of the effect of s. 150.1(4) as establishing a "due diligence" defence, I conclude that the Crown is not required to prove beyond a reasonable doubt that the defendant did not take all reasonable steps to ascertain the true age of the person unless the defendant meets the evidential burden of introducing some evidence that he believed the person to be over the age of 16 and the reasons why he held that belief. This conclusion is consistent with the Court of Appeal's decisions in Duran and Saliba. In those cases the defendant had met the evidential burden.
[98] In the case before me, the defendant has introduced no evidence that he took any steps to ascertain the true age of the complainant, or that he believed her to be over the age of 16. Consequently, the Crown is not required to introduce any evidence on the point.
CONCLUSION
[99] I find the defendant guilty of both offences charged – sexual assault and sexual interference.
Released: June 17, 2016
Signed: "Justice Doody"
Footnote
[1] The transcript prepared by the police and entered as Exhibit 2 indicates, at page 6, that this word is "I". I listened carefully to the audio recording. The word used by the witness is "like".