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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 subpara-graph (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.

ONTARIO COURT OF JUSTICE

CITATION: R. v. C.C., 2018 ONCJ 273

DATE: April 19, 2018

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

C.C.

Before Justice B. Knazan

Heard on February 12, 13 and March 20

Reasons for Judgment released on April 19, 2018

Mr. Matthew Shumka......................................................................... counsel for the Crown

Mr. Hilton Tse.......................................................................... counsel for the accused C.C.

B. KNAZAN J.:

INTRODUCTION

[1] Mr. C.C. is charged with sexually assaulting his cousin T.M., who was 13 at the time and 15 at trial. On November 27, 2016, T.M. and Mr. C.C. lived in the same house. Mr. C.C. had a room in the basement of T.’s parents’ home. That night, T. and her mother argued and it became violent. T.’s mother called the police to report that T. was hitting her. But during the argument, T. told her parents, for the first time, that C.C. had sexually assaulted her.

[2] The police took T. to a place where they could speak to her and interviewed her beginning after 4:30 a.m. T. reported that C.C. had assaulted her in his basement bedroom. T. said that he tried to digitally penetrate her, asked her to touch his genitals and threatened to hurt her if she told anyone. This gave grounds for three charges, that Mr. C.C.:

Between the 17th day of November in the year 2016 and the 21st day of November in the year 2016 at the City of Toronto, in the Toronto region, did with a part of his body, namely a hand, for a sexual purpose directly or indirectly touch the body of a person under the age of 16 years, namely T.M. contrary to s. 151 of the Criminal Code of Canada;

Between the 17th day of November in the year 2016 and the 21st day of November in the year 2016 at the City of Toronto, in the Toronto Region, did for a sexual purpose invite a person under the age of 16 years, namely T.M. to directly or indirectly touch with a part of her body, namely a hand, the body of C.C., contrary to s. 152 of the Criminal Code of Canada

Between the 17th day of November in the year 2016 and the 21st day of November in the year 2016 at the City of Toronto, in the Toronto Region, did by word of mouth knowingly utter a threat to cause bodily harm to T.M. contrary to s. 264.1(1)(a) of the Criminal Code of Canada.

The unfolding of the prosecution: when the offences occurred and the legal relevance of the date

[3] When T. – speaking to the officers on Monday, November 28, 2016 – told them what had happened, they quite naturally asked when it had happened. She first said that she did not know specifically but that it was some time when she wasn’t at school. Some further questions about why she wasn’t at school prodded her to remember and she told the officers that she had been visiting her sister in Mississauga from Thursday until Monday because Thursday was a PA day. She seemed to say that it happened on the Monday when she came home, though she also said that she had been at school that day. That was when C.C. put his hand into her pants and tried to put his finger into her vagina.

[4] Based on this information, the informant swore the information. As can be seen above, with respect to the date of the offence, the informant specified the dates November 17 to 21, opting for a specific time period instead of the familiar wording “on or about.” While usually the date is not relevant in a charge of sexual assault, and specifically against a child victim, it became, as both counsel submit, most relevant in this case because the accused testified and called evidence that he could not have sexually assaulted his cousin during the days specified because he was not at the house.

T.s evidence of the assault apart from the date

[5] T.’s evidence is mainly what she told the police in her statement on November 28th. This became evidence on the trial when pursuant to section 715.1 of the Criminal Code, T. adopted the videotaped statement. Unless important for any reason I will not distinguish between her statement and her in-court evidence.

[6] T. testified that Mr. C.C. lived in the basement and that, one day, she was with her brothers and her sisters and Mr. C.C. was in his bedroom where there was a television. Her younger siblings went to bed and she was left with Mr. C.C. and her sister V. She and her sister were playing a game with Mr. C.C. that her sister invented. It involved hitting him in the testicles and getting a point that was called a “nut point” every time they succeeded.

[7] When her sister V. went upstairs, she was left lying on the bed with Mr. C.C.. He tried to insert his finger into her vagina. She explained which hand he used by reference to the fact that Mr. C.C. is missing some fingers on one of his hands and he used the other hand. She did not know the term genital area when she gave her statement so she said her “hole”. But he missed what she called her hole and touched the lip of her vagina. Then he touched her breast; she remembers it hurting. Then he took her hand and put it on his penis for about a minute, also hurting her wrist. Her sister came to the door and asked what they were doing and he stopped. But he threatened her not to tell anyone or he would hurt her.

[8] T. testified that she did not tell her parents until November 27 because she was afraid. She told them in the middle of the dispute that night. The dispute began over her coming home late and the family’s kittens but it turned into a physical fight with her mother. That is when she told her mother that Mr. C.C. had sexually assaulted her.

[9] The day after giving her statement to the police, T. called the station and left the officer a voice message in which she said that she wanted to drop all the charges and that she had lied.

[10] On May 29, 2017, the police interviewed her about this call. She said that she called because it was not fair to put C.C. in jail because both she and he touched each other. She said that she had called on her own. She also said she agreed to call the police and leave the message, even though she had told her mother that C.C. did do what she said he did and her mother thought she was lying.

[11] When she testified in court as to why she said on the voice message that she lied to the police when she called them the day after giving her statement, she said that she meant she didn’t tell the police that she had also touched C.C. by playing the game involving the nut points for touching his testicles.

[12] In cross-examination, it was put to her that not telling the police about touching C.C. could not have been the lie she was talking about because she had told them about touching C.C. in the nut game. She maintained her position that he had touched her the way that she said, but that she had called because her mother pressured her to, her sisters were crying because they missed C.C., and it was not fair for him to go to jail because she had also touched him.

[13] T.s evidence was strong and believable. She was not impeached on the substance of her allegation by a probing cross-examination that covered her not knowing left from right, being unsure of the time of the incident, being unsure how she and Mr. C.C. were lying on the couch, her phone call to the police apparently recanting and her motivation to lie because she did not like the police and her mother had called the police on her. She handled this admirably whether for a 15-year-old witness or anyone of any age. As can be seen, the development of the case became complicated, with her disclosure to her parents, her statement to the police, her call to the police station, her statement about that call six months later and then her examination and cross-examination in court on her statements. At each stage – her two statements and her examination by two lawyers – she followed what was being asked, addressed it, and was consistent that she told the truth at the outset and that C.C. touched her and threatened her as she said he did.

[14] She was asked if she told a family friend who she calls Auntie that C.C. had not done anything and she admitted it and said that she told her that so as not to worry her.

[15] I deal with the date below but she self-corrected on the date during her interview with the officer, then she honestly agreed with defence counsel as he pointed out the impossibilities inherent in her evidence about the date. She answered all questions in a manner that showed that she was thinking about them and trying to be truthful. She never said anything to anyone other than that this happened and I accept her explanation of the “it was a lie” phone call to the police.

[16] T. has fits of anger and blackouts that she described herself. When defence counsel gently explored this in an attempt to impeach her she replied in a way that was noteworthy for its beauty and gives me confidence that I was listening to a truthful witness. Whether it was the truth of poetry or the truth of childhood, it was true.

Q. Now do you find that you tend to have wandering thoughts if you don’t take your medication?

WITNESS: A. Yeah, I have like—I normally do my own thing. Like if I see woods I would like go into them and I would climb the trees.

Q. So it’s hard to focus, right, when you’re not taking your medication?

A. Yeah.

Q. Right.

A. And then like if I like see a butterfly like I will like chase it.

[17] I do not find that any discrepancies about left and right or the positions on the bed or even the time of the day weakens the evidence of the assault. T’s evidence could be sufficient to support a conviction. It was certainly sufficient to put Mr. C.C. to his defence. But before I turn to his evidence and how he structured his defence I will deal with the evidence of the date of the assault.

T.s evidence of when Mr. C.C. assaulted her

[18] The only evidence of when this event occurred is T.’s.

[19] Her first mention to the police of when this may have occurred was indirect. She told them that he had sexually assaulted her and that when she told her Mom and Dad they didn’t believe her and that she told her Mom that she had been trying to tell them for the longest time, since last week. As she first told her Mom on November 27th, this may have meant that the assault occurred last week or could have meant that she had been trying to tell them since last week. This is hardly cogent evidence of date.

[20] Then she told the police, in answer to the direct question “when did this happen?” that she did not know specifically (she said “pacifically”) but that it was some time when she wasn’t at school. She confirmed that it was a day that she was not at school, that it was a school day and that it was about a week before November 28 when she said “about a week ago.”

[21] She then self-corrected and said that last week, that is the week previous to November 28th, a Monday, she was at her sister’s in Mississauga and everyone else was at home and “that’s what happened.”

[22] When the officer asked her what happened she elaborated not about the assault but, answering literally that she visited her sister. She said that she went to Mississauga from Thursday, a PA day, until Monday.

[23] Since the interview was taking place in the early hours of Monday November 28, 2016 after the fight with her mother on Sunday, this must have referred to Thursday November 17th to Monday November 21st. This is the period that made its way into the information.

[24] She then testified that she went down, meaning to Mr. C.C.’s room, where the assault occurred after 3:15, because school went to 3:15 and she and the other children could not go anywhere until 3:15 if she didn’t go to school. She said that her parents were upstairs watching TV.

[25] She then decided to play the game they called nut points with V. just by communicating with their eyes. She and V. ran up to Mr. C.C. and hit him in the groin and it was really fun until he sexually assaulted her.

[26] She then testified that after she went upstairs and did not tell her parents she took a shower because she had to get up early for school and she didn’t take a shower on Monday.

[27] There is nothing inconsistent in this evidence with the assault having occurred on Monday, November 21, a date specified in the charges, after she returned from her sister’s. It appears unlikely because she appears to be talking about two different days, one in which she went downstairs at 3:15 and another on which she came home from her sister’s but they could have been the same day.

[28] However in cross-examination, she returned to her visit to her sister’s and said that it was on the day that she came back from her sister’s that her sister V. invented the nut game and that that was three days before the sexual assault. This not only sows doubt about whether the assault occurred on Monday, November 21 (when she returned from her sister’s) it entirely refutes it. T. was as clear and cogent about this as she was about every other part of her evidence, the very evidence I have found could support a conviction.

[29] As Crown counsel helpfully submits, this proves that any assault which might have occurred did not occur on any of the days listed in the information.

Mr. C.C.’s defence

Mr. C.C. testified that he was not at home from November 17th to November 21st but that he was at his friend’s, Mr. Gardiner’s, helping him to move things to the garage and clean up. He returned home about 11 p.m. the night of the 21st. Mr. Gardiner also testified, though called by the Crown in reply, not by Mr. C.C.. He confirmed Mr. C.C.’s evidence that he had been staying with him at his house and with him all of the time – but his confirmation was in a very repetitive mode – he had the dates the 17th to the 21st clearly in his mind and kept saying November 17thto 21st without a good memory of detail. Mr. C.C. in his testimony accounted for every minute of the four-day period saying that he was at Mr. Gardiner’s. There were some discrepancies between the two as to what type of work Mr. C.C. was doing. Mr. C.C. also denied ever threatening or sexually touching his cousin T.

The significance of the date

[30] Generally the time of the offence is not relevant, even if specified in the indictment. In R. v. S.M. 2017 ONCA 878 the Court of Appeal wrote:

As a general rule, the Crown is not required to prove beyond a reasonable doubt that the alleged offence occurred within the timeframe set down in the indictment: see R. v. B.(G.) (1990), 1990 CanLII 7308 (SCC), 56 C.C.C. (3d) 200, at 215-216 (SCC); Criminal Code, s. 601(4.1).

[31] Section 601(4.1) of the Criminal Code reads:

(4.1) A variance between the indictment or a count therein and the evidence taken is not material with respect to

(a).... The time when the offence is alleged to have been committed, if it is proved that the indictment was preferred within the prescribed period of limitation, if any.

[32] So, although the Code, which the court referred to, is categorical, the rule is not: see R. v. B.(G.), referred to in R. v. S.M., above, wherein the Court set out some exceptions, in addition to the exception for limitation periods that the Code refers to. There, Justice Wilson reviewed the history of the law and approved the statement of Ewaschuk in his text Criminal Pleadings and Practice in Canada (2d ed., 1987) at para. 9:10050:

From time immemorial, a date specified in an indictment has never been held to be a material matter. Thus the Crown need not prove the alleged date unless time is an essential element of the offence or unless there is a specified prescription period. [Emphasis added by Supreme Court.]

[33] But then immediately at paragraph 38, she goes on to recognize one other exception that is not covered by the Criminal Code. She stated:

From the foregoing, it is clear that it is of no consequence if the date specified in the information differs from that arising from the evidence unless the time of the offence is critical and the accused may be misled by the variance and therefore prejudiced in his or her defence.

[34] The time of the offence in this case was not critical. However the accused has been misled by the variance and has been irreparably prejudiced in his defence. In the face of an information specifying a time period, he defended himself by calling evidence that he was not living at the house during the whole period of time. This fits into what I will call the alibi exception to the irrelevance of proving the time.

[35] Justice Wilson establishes the exception in B.(G.) at paragraph 40:

Another circumstance which has been held on the authorities to make the time of the alleged offence critical is when an accused defends the charge by providing evidence of an alibi for the date or time period charged. To hold otherwise would be to deny an accused the right to make full answer and defence.

[36] From this it follows that a time that is not critical at the outset can become critical during the course of the trial when the accused defends himself by saying that it was impossible that he committed the offence then. This is what has happened in this case.

[37] At the conclusion of the Crown’s case, before Mr. C.C. testified, it was apparent from T.s answers, accepting her accuracy, that she was at her sister’s from November 17 to November 21 and that the sexual assault did not occur on the day that she came home, the 21st. It was open to the Crown to apply for an amendment, that may well have been granted. Even though the defendant had been preparing his defence for over a year and had given notice of his alibi, it may have been possible to set everything right by granting the accused an adjournment, even if it would have necessitated enough time to reconsider his defence and his decision to testify. What Chief Justice Lamer wrote in R. v. M.B.P., 1994 CanLII 125 (SCC), [1994] 1 S.C.R. 555, at para. 16, is nearly directly applicable and determinative at the same time:

…respondent knew what was alleged against him from the outset. He had been made aware at the time of his arrest that the relevant period during which he was alleged to have sexually assaulted the complainant was when he was living at her parents' house. I am inclined to think that, up until the point when the Crown closed its case, the dates in the indictment could have been amended so as to make them conform with the period during which the respondent was living with the complainant's family. In this regard, I would simply note that courts, including this one, have accepted that, in cases involving offences and particularly sexual offences against young children, absolute precision with respect to the timing of an alleged offence will often be unrealistic and unnecessary: B. (G.), supra, at p. 53; also see R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at pp. 132-34, and Re Regina and R.I.C. (1986), 1986 CanLII 4666 (ON CA), 32 C.C.C. (3d) 399 (Ont. C.A.), at p. 403.

[38] But no amendment was sought and Crown counsel, quite fairly, did not apply for an amendment after the conclusion of the case, which included the Crown calling Mr. Gardiner in reply in attempt to undermine the alibi. Section 601(2) of the Criminal Code gives the Court discretion to amend the information to make it conform to the evidence and section 601(3)(b)(i) of the Code requires me to amend the information if it fails to state, or states defectively, anything that is requisite to constitute the offence. However, s. 601(4) requires that before making such an amendment, I consider:

(d) whether the accused has been misled or prejudiced in his defence by any variance, error or omission mentioned in subsection(2) or (3); and

(e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.

[39] No amendment can be made without an injustice being done – it would deprive the accused of his right to make full answer and defence to the charges in the information that he had to answer. The Crown has not proven that any offence occurred when alleged and in this case the date is relevant.

[40] Crown counsel presented what he characterized as a path to conviction despite the failure to prove the specified date that he agrees became relevant. That is to reject Mr. C.C.’s defence outright and then treat the case as a case other than an alibi case and restore it to one where the general rule that the time of the offence is not relevant applies.

[41] I do not see this path to conviction. First of all, to isolate the accused’s evidence about time, particularly in this case, goes against proper judging. Evidence must be viewed together with the rest of the evidence and individual pieces of evidence must be considered in the context of all of the evidence: R. v. B.(G.), 1990 CanLII 115 (SCC), [1990] 2 S.C.R. 57 at para. 40.

[42] And second, though related, when one considers the evidence as a whole, Mr. C.C.’s alibi might just be true or raise a reasonable doubt. There is a conflict between T. and Mr. C.C. about Monday night November 21; she testified that her sister invented the nut game that night and Mr. C.C. testified that he did not arrive home until about 11, but her evidence about time is not capable of dispelling any reasonable doubt about Mr. C.C.’s testimony that he was with Mr. Gardiner when he said he was. So I cannot isolate his alibi and reject it as Crown counsel submits.

[43] The charges are dismissed.

Released: April 19, 2018

Justice B. Knazan

Ontario Court of Justice