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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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: December 8, 2016

Court File No.: Central East 15-6738

Between:

Her Majesty the Queen

— and —

D.H.

Before: Justice C.M. Harpur

Heard on: October 27, 28 and 31, 2016

Reasons for Judgment released on: December 8, 2016

Counsel:

• M. Flosman — counsel for the Crown
• S. Vincent — counsel for the accused D.H.

HARPUR J.:

Overview

[1] D.H. is charged with sexual exploitation and sexual assault of E.T. between October 1, 2013 and June 30, 2014 and with sexual interference and sexual assault of M.P. on or about April 18, 2015.

[2] D.H.'s trial on these charges proceeded on October 27, 28 and 31, 2016. Mr. Flosman for the Crown called M.P., E.T. and their mother J.M.. Mr. Vincent for D.H. did not call evidence.

[3] The circumstances surrounding D.H.'s involvement with E.T. and M.P. is not in issue. At the start of 2012, when E.T. was 15 and M.P. 7, M.P. resided with her mother J.M. in a two bedroom apartment on Centre Street in Bradford. D.H. was then a boarder in that residence. E.T. lived elsewhere with her father but stayed with her mother and M.P. on alternate weekends. When E.T. stayed at the apartment, she would sleep overnight in a bedroom with her sister. J.M. slept in the apartment living room and D.H. slept in the second bedroom.

[4] Some time prior to April of 2012, D.H. and J.M. began a romantic relationship. In April of 2012, J.M., M.P. and D.H. moved to a three bedroom house on Drury Street in Bradford. In the upstairs of the home was a bedroom for each of E.T. and M.P.. J.M. and D.H. slept in a room in the house basement.

[5] In July 2013 J.M. and D.H. married.

[6] In October 2013, when she was 16 years of age, E.T. moved from her father's home to J.M.'s and D.H.'s home on Drury Street to reside there full time.

[7] In July 2014, J.M., D.H., E.T. and M.P. moved from Drury Street to a home on Holland Street in Bradford.

[8] J.M. and D.H. separated in October of 2014. J.M. and the children moved to another residence a few blocks away.

[9] D.H. had a son of his own, K.H., who, after D.H. remained in the Holland Street residence in October of 2014, stayed with his father on some weekends. Occasionally in this period M.P. would have sleepovers with K.H. at D.H.'s residence. There was one such sleepover on the night of Friday, April 17, 2015.

[10] During their time together, at least from E.T.'s move to Drury Street in October 2013, E.T. periodically bought marijuana from D.H. and would smoke marijuana with him. She continued to do this until March of 2015 although, by that time, she, M.P. and their mother were no longer living with him.

The Allegation involving M.P.

[11] M.P. testified that, in the course of her sleepover with K.H. in April of 2015, she awoke in the bedroom in which she and K.H. were sleeping to the realization that D.H. was pulling down her underpants and had done so to the point where her buttocks were exposed. She said she felt the contact of his facial stubble with her buttocks. She said she then moved her body and intentionally groaned as if awakening, causing D.H. to leave the room and return to his own. M.P. said she then fled D.H.'s home and walked in the early morning hours to her own home a few blocks away, eventually waking E.T. and J.M. who heard her allegation and called the police.

The Allegation involving E.T.

[12] E.T. said that D.H.'s unwanted physical contact with her began prior to April of 2012 during the stage at which E.T. was staying at her mother's and D.H.'s residence on alternate weekends and was otherwise resident at her father's home.

[13] The first form of contact described by E.T. was one occasion in the Centre Street apartment when she and D.H. were alone in a bedroom watching television sitting on a bed. She said D.H. put his hand on her leg and rubbed from her lower leg to her upper leg over clothes. She said that the rubbing of her upper leg involved his thumb grazing the outside of her vagina.

[14] E.T. said there were no more contacts by D.H. until he, J.M. and M.P. had moved to Drury Street in April of 2012. She said that on every weekend visit from that time forward, until October 2013 when she moved in with her mother and D.H., D.H. would engage in the sort of contact he had begun at the Centre Street apartment. She said he would touch her legs, stomach and chest during her visits when the two of them were alone together, both over and under clothes. She said the touching took place in her own bedroom or in the basement bedroom at Drury Street. She said that the touching would be limited to her leg if her mother were present in the same room but asleep. She said D.H. would attempt to put his hands down the front of her pants in order to touch the outside of her vagina and that she would resist.

[15] She said that when she did resist D.H. would switch to putting his hand up underneath her shirt. She said she would not resist the latter groping if it had the effect of keeping D.H. from attempting to put his hands down her pants. She said that on one occasion of this touching D.H. penetrated her vagina with his fingers.

[16] E.T. said these touches occurred "more often than I could count". She said that, from the outset, she told D.H. repeatedly that this was wrong, that he was cheating on her mother and that she was uncomfortable with his touching. She said his response was to the effect that "your mom doesn't need to know" and "I am doing this for you". She said D.H. had often been drinking when he engaged in this unwanted physical contact.

[17] The last of the alleged assaults described by E.T. - one not falling into the time frame set out in the information - occurred between July and November of 2014 when the family had moved from Drury to Holland Street and D.H. and J.M. had not yet separated. E.T. said she woke one morning to see D.H. delivering a coffee to her room, not an unusual occurrence. She said somewhat later she woke again when she felt her legs being touched as she lay in bed. E.T. said she confronted D.H. with the leg-touching later that day, to which he responded that he had been in her room the second time because he thought he had seen a mouse in the room. E.T. said she did not believe this explanation. She said she was upset to think that he had touched her again, something he had ceased doing at the point where the family moved from Drury Street to Holland Street in July of 2014.

[18] E.T. reached the age of 16 years on November 26, 2012. Thus, she was 16 for slightly less than one year of her alternate weekend stays at the J.M./D.H. apartment on Drury Street, for the period of her residency at Drury Street from October of 2013 until July of 2014, and for her residency at Holland Street until she and D.H. ceased having contact in March of 2015.

[19] E.T. said she did not reveal her allegations of D.H.'s sexual contact with her until August of 2015, approximately four months after M.P. had returned home from the sleepover and made her allegations. She said that, when her sister accused D.H. in April 2015, she felt guilt about not having disclosed the incidents at an earlier stage since doing so might have prevented harm to M.P.

First Issue - Amending the Information

[20] There are two issues for determination. The first is whether the Crown should be permitted to amend the information with respect to count one, which currently sets out a time frame from October 1, 2013 until June 30, 2014 concerning sexual assault on E.T.. The Crown seeks to amend this time frame to commence on April 1, 2012.

[21] In his submissions, Mr. Vincent has described D.H.'s defences regarding E.T. as either that E.T.'s testimony fails to prove D.H.'s having engaged in the sexual contacts she described or that, if sexual contact is proven, it was consensual with respect to those contacts in the period specified in the indictment, which would follow E.T.'s sixteenth birthday. Thus, there is some significance to the proposed amendment: E.T. was statutorily incapable of consenting to sexual contact with D.H. prior to November 26, 2012 and any incidents of sexual contact found to have occurred prior to that date would necessarily be non-consensual.

[22] As to the appropriateness of the amendment, Mr. Flosman relies on s. 601(2)(3)(4) C.C. Section 601(2) expressly places within my discretion an amendment of count one to conform to E.T.'s evidence that she was sexually assaulted by D.H. repeatedly commencing in April of 2012. Section 601(4)(d) C.C. requires me, in determining whether the amendment should be made, to consider "whether the accused has been misled or prejudiced in his defence by [the amendment]". Section 601(4)(e) requires me to consider whether the amendment can be made without injustice being done.

[23] Mr. Vincent submits that the amendment would, indeed, be a case of injustice and of prejudice to D.H.. The defence submits that the Crown's disclosure did not alert the defence to the prospect of evidence about assaults as early as April of 2012 and that the defence strategy, including the decision whether or not D.H. would take the witness stand, has been informed by the time frame set out in the current count one of the indictment.

[24] I am granting the Crown's application to amend. I accept that the appropriate test as to whether to permit the amendment is whether it can be made without causing irreparable prejudice to D.H.: R. v. Morozuk, [1986] 1 S.C.R. 31. D.H. has not been irreparably prejudiced by the amendment. When Mr. Flosman closed the Crown's evidentiary case on October 28, 2016 he gave notice of the Crown's intention to amend in this manner. If D.H. regarded the necessary response to this amendment to be evidence of his own, he was in a position to provide it.

[25] In any event, apart from alibi which has not been suggested, I have great difficulty accepting the argument that the prospect of the court receiving evidence of sexual assaults prior to October 1, 2013 would call for responding evidence from D.H., whereas evidence of such incidents after that date would not. The matter of E.T.'s age and inability to consent to sexual contact prior to November 26, 2012 is a matter beyond debate and, otherwise, evidence of incidents preceding October 1, 2013 would go to the volume, not the character, of the physical contact; E.T. did not differentiate the pre- and post-October 1, 2013 incidents in respect of the kind of activity involved.

[26] Accordingly, count one of the information will be amended to delete the words "1st day of October in the year 2013" and to replace them with the words "1st day of April in the year 2012".

Second Issue - Credibility

[27] Mr. Vincent submits that neither M.P.'s nor E.T.'s testimony was sufficiently reliable to prove guilt beyond reasonable doubt for the respective charges relating to these complainants. The defence position is that there were sufficient weaknesses in each testimony to preclude such proof.

(a) M.P.

[28] M.P. was a very young witness, eleven years old, when she gave her evidence on October 27, 2016. Despite her age, M.P. testified clearly and in detail as to the incident in April 2015 involving the touching of her body by D.H.. She seemed to me to recognize the importance of only testifying to things she knew. She was asked by Mr. Flosman what she had done before going to bed on the night of the sleepover and she said she did not know. She was also uncertain as to when she went to bed and said so.

[29] M.P. also struck me as properly willing to concede matters if true even if they were not helpful to the Crown's cause. For example, she testified that when she woke to the feel of D.H. lowering her underpants, the nightgown she was wearing was up at the level of her hips. She went on to say that she is a person who "rolls a lot" in her sleep and that there was nothing abnormal about her gown having risen. A less truthful witness might have attributed the state of her nightgown to the accused.

[30] I did not have the impression that M.P. was attempting to embellish the matter of physical contact between herself and D.H.. She said that she was only ever touched once by him in the time that she knew him.

[31] There were two aspects of M.P.'s testimony which I did regard as weaknesses, but not as sufficient to overwhelm its strengths or to create reasonable doubt. The first of these was the fact that M.P.'s evidence about feeling D.H.'s facial stubble on her buttocks only emerged in cross-examination. She made no such reference in chief. One might have expected M.P. to have regarded this as a very significant aspect of the assault and to have included it in the description she was giving when being questioned by Mr. Flosman. However, on reviewing M.P.'s evidence in cross-examination, I gain the sense that she regarded D.H.'s face-touch as of no greater significance than the fact that he had pulled her underpants down and of less significance than that he might go on to touch her vagina. When Mr. Vincent asked M.P. why, in respect to D.H.'s touching, she did not ask him what he was doing, she responded that she feared he might "pounce" if confronted. It was in the context of her answer about this fear that she indicated she felt D.H. might proceed to touch her "in a different spot" since he had already placed his face against her buttocks. The prospect of future contact with her vagina was the focus of her concern, not the face-touch. This prevents me from regarding the omission in chief of the face-touch as undermining her reliability.

[32] The second feature of M.P.'s evidence which was problematic had to do with her observation of D.H. holding a flashlight. This evidence, as it emerged in cross examination, took the following course: (i) M.P. tells Mr. Vincent that she thinks D.H. was holding a flashlight in his mouth when he was pulling down her underwear; (ii) M.P. acknowledges to Mr. Vincent that she must have been wrong in saying that D.H. was holding a flashlight in his mouth when pulling down her underwear since she felt his facial stubble as he did so; (iii) M.P. tells Mr. Vincent that, subsequent to the incident and her interview by the police but prior to trial, she realized that D.H. could not have been holding a flashlight in his mouth if he was touching her buttocks with his face. In argument, Mr. Vincent has rightly noted the inconsistency between M.P.'s pre-trial appreciation of her error in speaking to the police and her proceeding nonetheless at trial to repeat that error in her initial response to Mr. Vincent's questions.

[33] In fact, there are two troublesome aspects to this evidence. The first is an implication that the version of events M.P. gave to the police contained at least this one embellishment. The second is that, as argued, despite recognizing her error in her description to the police in advance of trial, M.P. reiterated the mis-description at trial until the implausibility of her description about the holding of a flashlight was pointed out to her by Mr. Vincent. As to the first of these, I do not regard M.P.'s description to the police of the way in D.H. held the flashlight as a sufficiently central detail to seriously damage M.P.'s credibility generally. As to the second, while I would place significant weight on the failure of an adult witness to sustain the correction of a memory once the correction has been made, I am not at all confident that the same sort of intellectual rigour should be expected of an 11 year old child. I am prepared to accept that M.P. may simply have forgotten by the time of trial her realization, prior to trial, that D.H. did not have the flashlight in his mouth. I certainly did not have the sense that her initial repetition of the error at trial was any sort of wilful reversion to a more vilifying narrative. At worst, it demonstrated some minor speculation in M.P.'s testimony but, again, no more than one might expect of a child witness.

[34] Because I do not regard M.P.'s evidence concerning D.H.'s pulling down of her underpants and touching of her buttocks with his face as subject to any reasonable doubt, I find that D.H. did engage in this conduct.

(b) E.T.

[35] E.T. was 19 when she testified. She was clear and consistent in her evidence in chief. She did not appear to me to shy away from questions eliciting what might be seen by the court as unhelpful evidence. She readily acknowledged such facts as that she was willing to allow D.H. to touch her breasts if it had the effect of preventing him from trying to touch her vagina, that her efforts to avoid the continuous touching by D.H. were limited to pushing his hands away, telling him she did not want him to touch her and moving to another place in the homes, that she did not tell anyone about the touchings as they were occurring, and that she purchased marijuana from D.H. and smoked it with him even in a period following D.H.'s many alleged sexual assaults upon her.

[36] Mr. Flosman submits that there is no issue in this trial of consent on E.T.'s part – even in the period following her reaching her 16th birthday – because D.H. was E.T.'s stepfather and thus is presumed to be in a position of trust in relation to her. Accordingly, the argument goes, E.T. could not provide a valid consent pursuant to the provisions of s. 273.1(2)(c) C.C. I cannot agree. I accept with Mr. Vincent's submission that the Crown has not established beyond reasonable doubt that D.H. was in a position of trust or authority toward E.T. during the time that she was either visiting or living in his home. Rather, E.T.'s and J.M.'s evidence suggested to me that, by April 2012, E.T. was exercising an exceptional degree of independence as a 15, 16 and 17 year old. They said she was openly rebellious and resistant to her mother's oversight. They both testified that D.H. to acted as if he were one of E.T.'s friends, not as her parent and certainly D.H.'s sales to E.T. of marijuana were not the act of a parent. Thus I retain at least a doubt as to whether D.H. was indeed in a position of trust, power or authority in relation to E.T.. No such position is presumed by reason of his step-father/step-daughter relationship to her: R. v. J. (R.H.), 86 C.C.C. (3d) 354 (B.C.C.A.), leave to appeal to S.C.C. refused 87 C.C.C. (3d) vi. E.T. has not been proven to be incapable of consenting to sexual contact with D.H. after she had reached her 16th birthday. The question on this issue is whether the Crown has proven that she did not.

[37] Mr. Vincent relies in part upon E.T.'s delay until August of 2015 to reveal her allegations in suggesting that there should be reasonable doubt either as to whether she has fabricated her allegations or as to whether to the contact alleged to have occurred after she turned 16 was consensual.

[38] E.T. had several explanations for her delay:

(i) in and after April of 2012, her relationships with her mother and her father were strained and her relationships with other adult family members not sufficiently close to regard them as confidantes;

(ii) she thought D.H. might be mistaking her for her mother on some occasions when he touched her;

(iii) early in the assaults, she attributed D.H.'s behaviour to his drinking, not to his real nature;

(iv) after July of 2014 the physical contact by D.H. stopped and she inferred that he had changed his ways; and

(v) following the incident involving her sister in April of 2015, she deferred making her allegations out of guilt – the sense that she might have prevented her sister's assault had she raised her own earlier.

[39] I did not regard these reasons as implausible.

[40] There was one aspect of E.T.'s evidence about deferring her complaint in which she appeared to be inconsistent. She said that another of her reasons was concern for her mother's happiness - that J.M. seemed to accept D.H.'s drinking and was content with him and that she did not want to interfere with this contentment. However, with respect to the leg-touch in the bedroom after July of 2014, E.T. said that she immediately told her mother about the incident. In E.T.'s narrative, the leg-touch took place following more than two years of consistent and much more serious sexual assaults by D.H.. She said that, at the time of the leg-touch, she was no longer concerned about her mother's happiness and had decided she did not want D.H. in the house or in her mother's life.

[41] I accept Mr. Vincent's submission that E.T.'s willingness to complain to her mother about the leg-touch, but not to reveal to her the more serious assaults which had previously occurred, is puzzling. However, in weighing the significance of this inconsistency I bear in mind E.T.'s evidence that she recognized that the ongoing physical contact between herself and D.H. was wrong and a betrayal of her mother, that is, she can be seen as having reason to withhold the more serious allegations while disclosing the minor one. The inconsistency was not significant.

[42] The defence also submits that E.T.'s willingness to maintain proximity to D.H. after the assaults had commenced, her wearing of "non-protective" clothing such as pajamas when with him and her not refraining from buying marijuana from him and smoking it with him manifested her consent.

[43] This circumstantial evidence does not create doubt about E.T.'s direct evidence that she did not consent and took what she regarded as all reasonable steps to discourage D.H.'s sexual attentions. While E.T. may not have been under the authority of, or exploited by, D.H., she was certainly in circumstances which limited her ability to maintain any distance from him. If she wished to see her mother and her sister, she had to visit them when they were in company with D.H.. If, as she stated, she wished to escape an abusive relationship with her father, the home shared by her mother with D.H. was her only viable option; I accept her evidence that she did not feel sufficiently close to either set of grandparents to live with them.

[44] Consent must be unequivocal. Neither the wearing of the pyjamas nor the buying and smoking of marijuana constitutes implied consent, although the latter does suggest E.T. was willing to maintain contact with D.H.

[45] Although the defence was not expressly advanced, neither is this a situation in which there could be any doubt about mistaken belief in consent. Again, E.T.'s undisputed evidence is that, from the first incident, she indicated a refusal of consent to D.H.'s advances. I accept that evidence and there is nothing in the record to suggest that D.H. made any subsequent efforts to determine whether her views had changed, as would have been required by him pursuant to s. 273.2(b) C.C. if he purported to present a mistaken belief defence.

Conclusion

[46] For the foregoing reasons, I find D.H. guilty of the facts alleged by the Crown concerning M.P.. I invite further submissions on whether, pursuant to R. v. Kienapple, one of the counts concerning her should be conditionally stayed. As to E.T., by reason of the lack of proof that D.H. was a person in a position of trust or authority in relation to E.T., I find D.H. not guilty of the offence of sexual exploitation. I do find him guilty of sexually assaulting E.T. as she described.

Released: December 8, 2016

Signed: "Justice C.M. Harpur, O.C.J."

Justice C.M. Harpur, O.C.J.