ONTARIO COURT OF JUSTICE

CITATION: R. v. L.G., 2018 ONCJ 229

DATE: 2018 04 09

COURT FILE No.: Brampton 17-3875

BETWEEN:

HER MAJESTY THE QUEEN

— and —

L.G.

Before Justice M.M. Rahman

Reasons for Judgment released on April 9, 2018[^1]

Gursharan Gill............................................................................. counsel for the Crown

David Zbarsky.......................................................... counsel for the defendant L.G.

NOTICE: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. Any information that could identify the victim or a witness in this matter shall not be published in any document or broadcast or transmitted in any way. Failure to comply with this order is a criminal offence under section 486.6 of the Criminal Code.

RAHMAN J.:

I. Overview

[1] The defendant, L.G., is charged with sexual assault and sexual interference. The Crown alleges that he touched A.A. on her vaginal area and kissed her on the mouth while visiting her home one day in December 2016. Mr. L.G. was friends with A.A.’s mother N.P. and would frequently visit N.P., to help her with various household tasks, and look after her children. A.A. testified that, one day while he was visiting, Mr. L.G. touched her vaginal area while they were watching television in the basement, and then took her upstairs where he touched her vaginal area again and kissed her on the mouth.

[2] Mr. L.G. did not testify or call any evidence. He argued that A.A.’s evidence about the touching was not credible or reliable enough to prove his guilt beyond a reasonable doubt. He also argued that the Crown could not prove that the alleged assault took place within six months of the date the information was sworn. He argued that A.A.’s evidence was that Mr. L.G. touched her in the summer, and that N.P.’s evidence about when Mr. L.G. would have last been at her home was vague.

[3] These reasons explain why I find Mr. L.G. guilty of both offences with which he is charged.

II. Summary of the Evidence

[4] A.A. was a few months shy of her eighth birthday when she testified at trial. She testified by means of closed-circuit television from a room located just outside the courtroom. Her evidence in-chief went in principally through a video statement that she adopted, pursuant to s. 715.1 of the Criminal Code.

[5] At the time of the alleged offence, A.A. lived with her mother, N.P., and four siblings. N.P. met Mr. L.G. in the summer of 2016 at a food bank. N.P. considered Mr. L.G. a good friend. They were never romantically involved. Mr. L.G. began visiting N.P.’s home in June 2016. N.P. testified that Mr. L.G. would visit her house regularly, either every day or every other day. Mr. L.G. would help her with various household tasks. He would also babysit N.P.’s children and would pick them up from school whenever she needed his help.

[6] N.P. was not certain exactly how many times she saw Mr. L.G. in the fall of 2016. She believed Mr. L.G. lost his car around September (“school time”), but she was unable to fix it within a specific time frame. N.P. also testified that she had “seen him constantly until this incident happened” although she could not recall if she had seen him in October or November specifically or how many times. I will discuss N.P.’s evidence about Mr. L.G.’s visits to her home in more detail in my analysis, below.

[7] N.P. testified that the allegations were disclosed to her by a CAS worker who had been involved with her family. N.P. was unable to say what month the CAS worker told her that her daughter had made the complaint.

A. The Alleged Assault

[8] A.A. knew Mr. L.G. as “Howard.” She explained in her video statement that she Howard touched her vaginal area. She first indicated this by pointing to her vaginal area and then, when asked what that area was called, she said she called it her “private part.” When she was asked when he touched her she said “when nobody sees him.” She said that Mr. L.G. touched her while she was in the basement watching a movie with her siblings. A.A. said that she had been sitting on a couch and that Mr. L.G. touched her when she sat on his lap to watch a movie.

[9] A.A. also said that Mr. L.G. touched her upstairs. She said that he had her come upstairs and that he lifted her up and touched her vaginal area with his hand. A.A. then said that when her sister K. came he put her down quickly.

[10] In her video statement, A.A. also said that Mr. L.G. kissed her on her mouth. When asked by Crown counsel during the trial about Mr. L.G. kissing her, A.A. did not want to discuss it. The following exchange occurred between A.A. and Crown counsel:

Q. …And you were telling the officer that Howard kissed you on the lips? Do you remember that, [A.A.]?

A. Tell me a different question.

Q. You want a different question?

A. Yeah.

Q. Okay. Can we come back to that question later?

A. No.

Q. Sorry?

A. No.

[11] In cross-examination, when counsel suggested to A.A. that what she had told the police about being kissed was not true, she exclaimed “It was true.”

B. The Timing of the Alleged Assault

[12] Because the Crown proceeded summarily, the timing of the offence took on a great deal of prominence at trial.

[13] In her video statement, A.A. was unable to say exactly when Mr. L.G. had touched her. When asked how long before the interview Mr. L.G. had touched her, A.A. simply answered “I don’t know.” When asked by the interviewing officer whether she knew the days of the week, she said she did not. By that point in the interview it was also apparent that A.A. wanted to leave and said that she was getting quite bored.

[14] In cross-examination, when asked when the alleged assault took place, A.A. first said that she did not know. When defence counsel asked if it happened in the summer time, she responded that it happened at night time. Then, when asked if it was night time in the summer, she agreed. Defence counsel also asked whether the last time she saw Mr. L.G. was in winter or summer. She answered it was in the summer. When asked later in cross-examination when in the summer it occurred, whether it was the middle of summer, or the end of summer, A.A. said it was the middle of summer. She then answered that she saw Mr. L.G. in December, but did not see him in January. Finally, in a seemingly non-responsive answer she said that she had not seen him in December “because I told the police what happened, that’s why.”

[15] In re-examination, Crown counsel asked A.A. if she had seen Mr. L.G. again after he had touched her. She said she did not.

[16] N.P. testified that Mr. L.G. did not come to her house as regularly after he lost his car, around September 2016. She could not say exactly how many times he came to her house after that. N.P. said that the last time she saw Mr. L.G. was either in December or January 2017, when Mr. L.G. gave her some Christmas gifts for her children. When she saw him on this last occasion, she could not remember where exactly she met him, and said it may have been at his place. She disagreed that Mr. L.G. came to her place when she received the gifts because her boyfriend, P., had driven her to see Mr. L.G., and she did not believe that Mr. L.G. had ever been in P.’s car.

[17] N.P. testified that the last time Mr. L.G. had been at her home was at some point just prior to her birthday, which was on […]. Mr. L.G. had come over to help her decorate. All of N.P.’s children as well as her friend T. and T.’s daughter, were in the home. N.P. testified that all of the children and Mr. L.G. were in the basement watching television while N.P. remained upstairs cooking and cleaning.

[18] N.P. said that she had two birthday celebrations that year – a small gathering and then a larger party. She did not believe that Mr. L.G. attended either, because she remembered being upset with him.

[19] In cross-examination, defence counsel suggested to N.P. that Mr. L.G. had been at the larger gathering. N.P. did not specifically agree that Mr. L.G. had been at the large gathering, but testified that there would have been many adults at the house and they would have been everywhere in the house including the garage and the basement.

III. Positions of the Parties

[20] Crown counsel argued that A.A.’s evidence proves, beyond a reasonable doubt, that Mr. L.G. touched her for a sexual purpose as she described. Ms Gill argued that certain aspects of A.A.’s evidence provide support for her credibility. Specifically, the fact that A.A. did not want to discuss the allegation that Mr. L.G. kissed her. Ms Gill also pointed out that A.A. retreated under the table during her testimony, showing her discomfort with talking about Mr. L.G..

[21] As for the timing of the offence, Ms Gill argued that N.P.’s evidence is clear that the last time Mr. L.G. was at her home was to decorate the house, before her birthday. Ms Gill pointed out that in both examination in-chief and re-examination, N.P’s evidence was clear on this point. Ms Gill said that N.P. never specifically agreed with the defence’s suggestion that Mr. L.G. had been at the large birthday gathering. Ms Gill said that, taken together with A.A.’s evidence, it is clear that the offence occurred in December.

[22] Mr. Zbarsky, on behalf of Mr. L.G., principally made submissions about the timing of the offence. He urged the court to rely on A.A.’s evidence that the alleged touching happened in the summer, not the winter. He said that it would make more sense that the offence happened in the summer months, and before September when Mr. L.G. lost his car. He also said that the court should not “cherry pick” from her evidence, accepting her evidence that she did not see Mr. L.G. after incident happened, but rejecting her evidence that it happened in the summer. Mr. Zbarsky also argued that N.P.’s evidence about when Mr. L.G. was last at her home and last saw A.A. is unreliable. He argued that if the court accepted that December was the last month Mr. L.G. was at the home, there is insufficient evidence to find that A.A. actually saw him. Also, if Mr. L.G. was at N.P.’s birthday gathering, it is impossible that he would have been alone with A.A.

[23] Regarding the touching allegation, Mr. Zbarsky argued that A.A.’s evidence was unclear about how she went up the stairs, and that she did not provide any details about the circumstances surrounding the assault. Mr. Zbarsky also argued it was strange that she was willing to speak about being touched on her vaginal area but not about being kissed. He suggested the former should have been more uncomfortable to talk about.

IV. Analysis

A. The Alleged Touching

[24] I am convinced beyond a reasonable doubt that Mr. L.G. touched A.A. as she described and kissed her on the mouth. I accept her evidence for the following reasons.

[25] First, despite having a short attention span and having little interest in being the subject of a police interview, A.A. was very clear in what she said took place. Although there were times A.A. did not appear to understand questions, both during the interview and in court, once they were simplified for her, she answered the questions clearly.

[26] Second, A.A.’s reaction and answer to the questions about kissing is quite telling. In her video statement, A.A. did not use the words kiss or kissed when she described that Mr. L.G. kissed her. Rather, she made a kissing sound, and pointed to her lips. Even more significant is how she reacted to Crown counsel’s questions about kissing. A.A. did not want to answer Ms Gill’s questions and made it clear it was not something she wanted to discuss. Finally, when challenged by Mr. Zbarsky that it was not true that Mr. L.G. had kissed her, A.A. exclaimed “It was true.” This was a spontaneous reaction by a young child. It came at a point in the day when her attention span and patience had worn thin. Yet she still considered it important to be adamant about this when challenged.

[27] Mr. Zbarsky commented that it was odd that A.A. was willing to talk about being touched on her vaginal area but reluctant to talk about being kissed. He argued that the former was more invasive and that it would be more likely that A.A. would have been uncomfortable talking about it rather than being kissed. I cannot accept that reasoning.

[28] Every person is different, and people may vary about their feelings about the invasiveness of various kinds of touching. Also, it is completely understandable why A.A. felt more uncomfortable about discussing having been kissed than having been touched on her vaginal area. Being kissed on the lips might be considered by some people to be more intimate and more invasive than being touched on the genitals over one’s clothing. It involves close contact with another person’s face. It is completely understandable that being kissed was more uncomfortable for A.A. to talk about than being touched on her vaginal area.

[29] Third, A.A.’s testimony was internally consistent. Her allegation about the way the assault took place did not vary. It is important to look at her evidence as a whole. I say that because when A.A. is asked a question, she sometimes answers it one way, but when the same topic is put to her later, she often clarified her answer. I do not accept Mr. Zbarsky’s submission that her evidence lacked any real details about the incident. In my view, her description contained exactly the details one would expect from a child her age. She described the seating in the basement. She described Mr. L.G. lifting her up when he touched her upstairs. And she said that Mr. L.G. put her down when her sister came.

[30] Finally, I am convinced beyond a reasonable doubt that the touching was intentional and sexual in nature, and that it violated A.A.’s sexual integrity. I did not understand Mr. Zbarsky to take serious issue with the nature of the touching. If A.A. had only been touched once, it may have been easy to dismiss as having been an unintentional touching. However, Mr. L.G. touched A.A. twice. He touched her once in the basement and once upstairs when, as she described, he lifted her up. Moreover, when the touching is combined with the fact that Mr. L.G. kissed A.A. on the lips, it is apparent that he touched her vaginal area and kissed her for a sexual purpose.

B. The Six-Month Limitation Period and the Jurisdictional Issue

[31] As explained above, the Crown’s ability to prove when the assault took place, and this court’s jurisdiction over the offence, became a central feature of this trial. Before addressing my factual findings on the timing issue, I will explain how the issue developed during the trial.

[32] At the close of the Crown’s case, Mr. Zbarsky brought an application for a mistrial on the grounds that the Crown could not prove that the offence occurred within the six-month limitation period. The information had been sworn on March 30, 2017. Both counts alleged that the offences had occurred between December 1, 2016 and January 31, 2017.

[33] Relying on the Supreme Court of Canada’s decision in R. v. Dudley,[^2] Mr. Zbarsky argued that the court lacked jurisdiction to continue the trial because there was insufficient evidence about when the assault occurred. Mr. Zbarsky argued that Dudley stood for the proposition that, once a summary conviction court determines that the offence occurred outside the limitation period, the proceedings are a nullity and the appropriate remedy is to grant a mistrial.

[34] Applying the directed verdict test, I dismissed that application because there was sufficient evidence to permit a jury to conclude that the assault did take place in December.

[35] After dismissing the application, Mr. Zbarsky said that he was not calling a defence. He repeated his position that the court should grant a mistrial if the Crown could not prove the offence occurred within the limitation period. Before the lunch break, I asked the parties to consider some further case law and make submissions on whether Mr. L.G. was entitled to an acquittal rather than a mistrial if the Crown’s evidence fell short on timing. After considering the cases, the Crown and defence agreed that an acquittal, not a mistrial, would result if the Crown could not prove the offence happened within the limitation period.

[36] In my view the Supreme Court’s decision in Dudley, and other cases like it,[^3] do not apply. In Dudley, the offence date alleged in the information was more than six months earlier than the date the information was sworn. In other words, the proceedings were a nullity because the Crown could not make an election to proceed summarily. On its face, the information required an indictable election. The Crown’s election was a nullity. The accused was entitled to be put to an election about his mode of trial. The remedy of a mistrial is appropriate in those circumstances, because the proceedings were never valid. Because the proceedings were not valid from the outset, the accused was never in jeopardy of being convicted.

[37] Moreover, the procedure outlined in Dudley does not fit comfortably with the role of a trial judge who has heard all the evidence. The court described that procedure as follows:

Where it is discovered before adjudication on the merits, that the proceedings were instituted more than six months after the offence is alleged to have been committed, a mistrial should be declared unless the parties agree to waive the limitation period.[^4]

[38] The foregoing paragraph suggests two things. First, it suggests that there is no uncertainty or dispute that the limitation period has been exceeded, and the proceedings are a nullity. Second, and more importantly, it refers to the discovery happening “before adjudication on the merits.” The difficulty is that, when judges retire to consider their decisions, they are deliberating on the merits. It would be odd for the judge to retire to consider whether the Crown has proven its case beyond a reasonable doubt and then, before rendering a verdict, come back and declare a mistrial.

[39] In my view the Court of Appeal’s decision in R. v. Parkin,[^5] governs the proper procedure to follow where the Crown cannot prove that the conduct alleged occurred within the limitation period.

[40] In Parkin, the Crown initially elected to proceed summarily on a sexual assault charge. During the trial, after speaking with the complainant’s mother, Crown counsel discovered that the latest time the offence could have occurred (July 27) would have put the offence outside the limitation period (August 3). The Crown sought, and was granted leave to withdraw the information. The Crown then re-laid a new information alleging that the offence occurred in a different, narrower time period. The accused unsuccessfully applied to have the information quashed before the Supreme Court of Ontario.

[41] The Court of Appeal held that the Supreme Court judge erred in not quashing the information, and that allowing the Crown to proceed on the second information would be an abuse of process. The court explained that, had the mother’s statement about the timing of the offence been accepted at trial, it would have afforded a complete defence to the defendant.

[5] There can be no doubt that if the mother’s statement…had been given in testimony to the Crown and had been found by the court to be factually accurate, it would have afforded the appellant a complete defence to the charge alleged in the original information since in that case the conduct complained of could not have occurred within the six months prior to the swearing of the information. This, however, does not alter the fact that the appellant could have been found guilty of a sexual assault as charged in that information had there been any evidence establishing the occurrence of such an assault after August 3. There can therefore be no doubt in this case that the original information was not a nullity and that the trial judge had, accordingly, jurisdiction to enter upon a trial of the appellant on that charge.

[6] In our opinion, the proper procedure in the circumstances would have been for the trial judge…to proceed with the trial on the information before the court and, having heard the evidence and considered the matter, either convict the appellant or dismiss the information if, as seems likely, no evidence was adduced establishing a sexual assault occurred after August 3.[^6] [emphasis added]

[42] Applying Parkin to the case at bar, it is apparent that the Crown’s election was not a nullity and could not become a nullity during the trial. The information alleged an offence that occurred within six months of the date the information was sworn. When the Crown made its election, that election was valid. The trial started before a court with jurisdiction to try the matter. Therefore, when Mr. L.G. entered his plea he was in jeopardy of being convicted.[^7] The jurisdictional issue did not arise until the close of the Crown’s case.

[43] Having considered Parkin, the parties accepted that the Crown must prove beyond a reasonable doubt that the offence occurred no earlier than six months before the swearing of the information.

C. Timing of the Assault

[44] As for the timing of the assault, I find beyond a reasonable doubt that the offence took place at some point in December 2016. In making that finding, I rely on N.P.’s evidence about when Mr. L.G. was last at her home, combined with A.A’s evidence that she did not see Mr. L.G. after he touched her.

[45] N.P. testified that Mr. L.G. came to her home some time before her birthday to help her decorate. Her birthday was on […]. When he came to her home on that occasion, she testified that he was in the basement with all of her children. This accords with A.A.’s evidence about being in the basement with her siblings and Mr. L.G.. N.P. testified that Mr. L.G. did not attend her birthday party because she remembered being upset with him about it.

[46] I cannot accept Mr. Zbarsky’s submission that N.P.’s evidence about the timing Mr. L.G. last saw A.A. is unclear. To the contrary, I find it was clear.

[47] Mr. Zbarsky relied on statements that N.P. made during cross-examination where she expressed some confusion about the time frame in which she saw Mr. L.G., how many times she saw him, and when and where she last saw him. However, that cross-examination is bookended by an examination in-chief and re-examination where she clearly stated that the last time Mr. L.G. was at her home was to help her decorate for her birthday.

[48] Contrary to Mr. Zbarsky’s submission, N.P. did not agree that Mr. L.G. was at her home for a large birthday gathering on December 17. That was despite Mr. Zbarsky’s many attempts at suggesting that Mr. L.G. had been at her home after the day he helped decorate and was at her birthday party when a lot of adults were in the home.

[49] Only one of her answers could possibly support the defence position that Mr. L.G. attended the party. In cross-examination, after asking several questions about the party and where adults would congregate in the home, Mr. Zbarsky asked N.P. the following questions:

Q. Okay. So there wouldn’t be a time where, as far as you know, that your – any of your children would be left alone with only L.G. on that day?

A. No. Only during the time there’s no party or when the school…

Q. Yeah.

A… .pick them up and stuff. But the party, there’s too much people there like, how…

Q. That’s what I’m suggesting. But I guess we have to finish sentences, so you would agree with me then, that certainly on December the 17, there would not have been an opportunity, as far as you know, for him to be alone with the children.

A. I agree with that.

[50] Those answers stand against her more clear evidence about him coming to her home to decorate before […] and that she was upset with him for not coming to her birthday. It stands to reason that if he had actually been at her home for the large birthday gathering, she would not have been upset with him for missing it.

[51] Mr. Zbarsky also relied on what he said was the lack of evidence about when A.A. actually saw Mr. L.G. at their home. He said that, even if N.P. was certain about the last time Mr. L.G. was in her home, she did not say whether A.A. would have seen him on that occasion. Again, the evidence does not support this submission.

[52] As mentioned above, N.P. very clearly testified that the day Mr. L.G. came over to help decorate, Mr. L.G. had been in the basement with all of her children. That is consistent with A.A.’s recollection about being in the basement with her siblings.

[53] Mr. Zbarsky also argued that it is impossible to ignore A.A.’s evidence that the incident happened in the summer. He said that it would not make sense to accept her evidence that she did not see Mr. L.G. after he touched her but reject her evidence that it happened in the summer. He argued that A.A. would know the difference between summer and winter and that she would not be mistaken about what season the incident happened. Again, I cannot agree with this submission.

[54] I do not rely on A.A’s testimony that the alleged assault happened in the summer or that the last time she saw Mr. L.G. was in the summer. It is apparent to me that A.A has little understanding of time in terms of days, months or seasons. Indeed, when first asked questions about the timing of the touching, she did not even understand the questions. She could not tell the officer who interviewed her what the days of the week were. She did not know Christmas was in December.

[55] When Mr. Zbarsky first asked A.A. questions about when the incident occurred, she had trouble answering and understanding his questions.

Q. Do you recall what – what month that was. Was that in January, February, September, October?

A. I don’t know.

Q. You don’t know. Do you know when this took place before you made the statement to police? Let me explain my question. Did you tell – did this happen to you a year before you told the police?

A. I – I don’t understand what you’re saying.

Q. When – how – when you say that Howard touched you in your private part, that happened on a day?

A. Um hmm.

Q. And then you made a little movie with the police. Do you know how much longer after Howard touched you that you made the movie?

A. I don’t know.

Q. You don’t know. It could be six month later? You don’t know?

A. No.

[56] A.A.’s testimony that Mr. L.G. touched her in the summer has to be considered in the context of the questions which elicited that answer. She agreed with Mr. Zbarsky when he suggested to her the incident happened in the summer. It was the first season he suggested.

[57] Later, when Mr. Zbarsky tried to clarify with A.A. the last time she saw Mr. L.G., her answers again revealed an inability to think of time in terms of seasons or months.

Q. Do you remember the very last time you saw him?

A. Yeah kind of.

Q. Do you know whether it was in the winter or summer?

A. Summer.

Q. In the summer. And so you didn’t see him in the winter time.

A. No.

Q. And you didn't see him at Christmas time?

A. No.

Q. Do you know what month Christmas is?

A. No.

Q. If I told you Christmas was in December would that be the truth or a lie?

A. Truth.

Q. Okay. So you know that Christmas is in December, right?

A. Yeah.

Q. Okay. And so you didn’t see him at Christmas time?

A. No.

Q. Okay. And you didn’t see him after Christmas time either, did you?

A. No.

Q. No. So when you saw him, it would have been in the summer?

A. Yeah.

Q. Okay. And if I told you that Howard had been at your house to – in December, would that be the truth or a lie?

A. Truth

Q. That would be the truth?

A. Yeah

Q. Okay. Now I'm confused because I asked you if you saw Howard in December and you said no. The last time you saw him was in the summer time?

A. On the…

Q. You said you never saw him in December?

A. No. Like – like when I first met him, I didn’t know him.

Q. I know. But that’s not what I’m – what I’m asking you is that, you said that – if I said he was there in December, you said that would be the truth. But before I just asked you if you saw him in the winter, in December or January and you said no, you did not?

A. I did not see him in January.

Q. And you didn’t see him in December either, right?

A. December? No because I told the police what happened, that’s why.

[58] The foregoing exchange demonstrates that A.A. is not good at using months and seasons to relate events. However, what is clear from her evidence is that, after she said Mr. L.G. touched her, she did not see him again. Relating the touching to whether she had more encounters with Mr. L.G. is a more reliable way for A.A. to explain the timing of the incident, than having her try to remember whether it happened during summer, winter, or a particular month. She explained that, after he touched her, she considered him “not nice.” Given that comment, I find I can safely rely on her evidence about whether she saw Mr. L.G. again after he touched her. She no longer liked him. She would remember if she had seen him again.

[59] I am therefore satisfied beyond a reasonable doubt that Mr. L.G. touched A.A. in December 2016, well within the six-month limitation period. I find him guilty of both counts in the information.

Released: April 9, 2018

Justice M. M. Rahman

[^1]: I delivered reasons orally on April 6, 2018, omitting certain sections, including quotations. I explained that the full reasons would be released in writing, subject to editing. This written version takes precedence over the oral reasons in the event of any discrepancy between the two.

[^2]: R. v. Dudley, 2009 SCC 58.

[^3]: See for example R. v. Phelps (1993), 1993 CanLII 14657 (ON CA), 79 C.C.C.(3d) 550 (Ont. C.A.); R. v. Kelly (1998) 1998 CanLII 7145 (ON CA), 128 C.C.C.(3d) 206 (Ont. C.A.); R. v. Smith, 2002 NSCA 148.

[^4]: Dudley, supra, at para. 3.

[^5]: R. v. Parkin (1986), 14 O.A.C. 150 (C.A.) leave ref’d, S.C.C. Bulletin, 1986, p. 901.

[^6]: Parkin, supra, at p. 151.

[^7]: R. v. Riddle, 1979 CanLII 1601 (SCC), [1980] 1 S.C.R. 380 at p. 398.