Court Information

Ontario Court of Justice

Between:

Her Majesty the Queen Ms. Rebecca Law for the Crown

— And —

Stephen Ilk Mr. Rafik Kodsy for the Defendant

Before: K.J. Caldwell J.

Decision

Charge

[1] Mr. Ilk is charged with sexual interference involving a brief incident with then twelve-year-old M.H.F., a young girl who is a stranger to him.

Summary of the Relevant Evidence

[2] M.H.F. testified that Mr. Ilk reached out and grabbed her breast as she was walking with her mother along Danforth Avenue in Toronto. She screamed, attracting her mother's attention. They began following Mr. Ilk, staying back a distance, while her mother contacted the police.

[3] M.H.F. then saw Mr. Ilk grab another young girl in the chest area. That young girl also screamed and told her mother what occurred but the mother didn't appear to pay any attention. Mr. Ilk shoved men and touched women as he continued along Danforth.

[4] Eventually he touched a young adult woman on the breast. The young woman's boyfriend became angry and a fight followed. The police arrived shortly after the fight.

[5] M.H.F.'s mother, F.F., essentially echoed her daughter's evidence. She did not see Mr. Ilk touch her daughter but she observed his overall behaviour towards people on the street and witnessed the incident with the second young girl and with the young woman. She described Mr. Ilk caressing the length of women's hair as he touched them.

[6] Mr. Ilk also testified, adamantly denying any sexual contact or intent. He admitted to physical contact but was contradictory about whether the contact was intentional or accidental. He said that he had developed a very serious drinking problem and was drunk that day. He headed out for a walk but was frustrated by the failure of people to stay on the correct side of the road.

[7] Mr. Ilk appears to have a rigid rule about the side of the sidewalk upon which people should walk depending upon the direction they are headed. He felt entitled to tunnel his way through as people were not staying on the correct side. In his evidence in chief he maintained that any contact was accidental but in cross-examination he agreed that he was indiscriminately bumping and pushing people. He also acknowledged that he might have grabbed M.H.F. though he did not recognize her in court nor does he remember her.

Findings of Fact

[8] I find as a fact the following:

• that Mr. Ilk made intentional contact with various people as he made his way down the street;
• that Mr. Ilk made contact with M.H.F.'s breast and with a part of the young adult woman's body, most likely her shoulder area;
• that Mr. Ilk made contact with another young person but that the young person was a young boy, not a young girl;
• that Mr. Ilk's contact with M.H.F. was not for a sexual purpose.

[9] I make these findings for the following reasons.

[10] First, I find that his contact was intentional and not accidental because such contact best describes Mr. Ilk's own description of his intentions that day. He was clearly angry about the refusal of people to follow the rules of the sidewalk. He also acknowledged that he felt entitled to make such contact because of this refusal. He acknowledged in cross-examination that he was pushing people indiscriminately. Further, it is highly unlikely that he would have made accidental contact with numerous people during his walk even if he were drunk.

[11] Secondly, I accept M.H.F.'s evidence that her breast was touched because she was clear in her evidence and was obviously shaken by the nature of the contact.

[12] Thirdly, I reject M.H.F.'s evidence that the young woman was touched on the breast and I reject her mother's evidence that the young woman's hair was caressed in an implied sexual manner. I reject their evidence on these points because it is inconsistent with their statements to the police immediately after the event when their memories were fresh. M.H.F. said in that statement that she didn't know which part of the woman's body had been touched. Her mother made no mention of hair caressing in her statement.

[13] Fourthly, for similar reasons I reject their evidence that it was another young girl who was touched and find instead that it was a young boy. Both M.H.F. and her mother described the other young person as a boy in their police statements.

[14] I emphasize, however, that I found both M.H.F. and her mother very credible. I find that they were retelling the events as they honestly recalled them in court. It is the reliability of their memories that concern me, not the credibility. Memory is notoriously imperfect and almost 1½ years have passed since the incident. It was clear that they both thought Mr. Ilk's intentions towards M.H.F. were sexual. It is perfectly understandable that in their own minds the sexual overtones of his contact with others may have become exaggerated in their memories over time. I find that this evolution is very innocent but it cannot be reconciled with their earlier contradictory memories at the time of the events.

[15] Finally, I turn next to Mr. Ilk's intentions. Sexual interference requires that the contact be for "a sexual purpose". I find that his point of contact with M.H.F. was accidental. He intended to make contact, but not with her breast. I appreciate that he still would be guilty if he touched a more innocuous part of her body yet did so with a sexual purpose. I find, however, that he had no sexual purpose.

[16] I make this finding for a couple of reasons. First, Mr. Ilk was horrified at the thought of having sexual contact with a child and I totally accept his evidence on this point. Further, I look to his other contact that day. It was indiscriminate. He was making contact with various individuals regardless of their age and sex. I accept as a fact that he was making the contact because he felt the need to "tunnel" his way through the crowd and for no other purpose.

[17] I therefore find him not guilty of sexual interference. I have found, however, that he assaulted M.H.F. Can such a finding be registered against him? The answer to this question depends upon whether the charged offence of sexual interference includes the offence of common assault.

Does Sexual Interference Include the Offence of Common Assault?

(a) R. v. G.R.

[18] The Supreme Court of Canada decision, R. v. G.R., answers this question by analogy.

[19] R. was charged with committing incest with his daughter who was between the ages of five and nine at the time. R. was convicted of attempted incest. On appeal the Crown conceded that there was insufficient evidence to ground a conviction for attempted incest but argued that R. should be convicted of both sexual interference and sexual assault. The Quebec Court of Appeal held that sexual interference and sexual assault were not included offences in incest and the Supreme Court of Canada agreed.

[20] The minority decision, written by Justice Arbour, contended that an "included offence" should be case specific depending upon the facts found at trial and upon the accused's personal knowledge.

[21] Justice Binnie, writing for the majority, emphatically rejected that approach. Justice Binnie stated that the focus must be on the Crown's allegations, not on what the specific accused person knows. He stated, "it is not enough to say to an accused 'you know perfectly well what you're guilty of'." He pointed out that our criminal law is based upon the philosophy that an individual need only answer to the charge put forth by the prosecution.

[22] Further, he noted a number of practical realities. Defence counsel cannot adequately provide appropriate advice unless the individual's legal jeopardy is crystal clear. Further, both autrefois acquit and autrefois convict would be problematic for both the individual and the state. How is the Crown to know if further charges can be laid after acquittal or if those charges have already been determined by way of necessary inclusion in the original charged offence unless the test for inclusion is objective and of universal application versus case specific? Further, how can an individual know what offences he or she has been acquitted of if the basis of the acquittal is case specific?

[23] Section 662 of the Criminal Code codifies the definition of included offences, stating that the included offence must be described in the section creating the encompassing offence or in the specifics of the count in the charging information. Further, section 662(2) through (6) also outline specific offences deemed to be included.

[24] Justice Binnie noted that section 662 must be interpreted strictly. The charged offence must "necessarily" include all elements of the proposed included offence, referencing Lafrance v. The Queen. A strict interpretation provides the accused with fair notice of his or her legal jeopardy.

[25] Sexual interference requires proof of age but incest does not. Incest involves complainants of any age while the complainant must be less than fourteen years for sexual interference to apply. Justice Binnie acknowledged that it would be ludicrous to conclude that the father in G.R. did not know that his daughter was under fourteen. The specifics of the case and the father's knowledge are irrelevant when determining if an offence is included, however, thus the father could not be convicted of sexual interference.

[26] Similarly, incest encompasses consensual sexual acts but sexual assault requires lack of consent. The father could not be convicted of sexual assault even though his daughter did not consent to the acts.

(b) Application of R. v. G.R. to This Case

[27] The application of G.R. to this case is straightforward. Common assault requires lack of consent. Sexual interference does not require proof of lack of consent. As a result, the lack of consent element required for common assault is not included in sexual interference. Sexual interference does not include the offence of common assault.

[28] Further, turning to the remaining specifics of section 662, no words in the charging information would have put Mr. Ilk on notice that lack of consent was an element of the offence he was facing. And, finally, sections 662(2) through (6) do not specify that common assault is included in sexual interference.

Conclusion

[29] Mr. Ilk is not guilty of the offence charged. No included offences have been proven.

Released: October 31, 2017

Signed: K.J. Caldwell J.