ONTARIO SUPERIOR COURT OF JUSTICE

Court File No.: JJ78/11
Date: 2012-04-23

Between:
HER MAJESTY THE QUEEN – and – JUSTIN BRADLEY HAMILTON

Counsel:
John Dibski, for the Crown
Gordon Norsworthy, for Mr. Hamilton

Heard: February 6, 7, 8, 9, 10, 13, 14, 15 & 16, 2012

REASONS FOR JUDGMENT

GRAY J.

REASONS FOR JUDGMENT

1Mr. Hamilton stands charged with two offences: sexual interference with respect to C.H.; and sexual assault with respect to J.H.1. There were originally four counts, but two counts have been withdrawn by the Crown.

Background

Background

2Before reviewing the evidence, it should be noted that the relevant provisions of the Criminal Code were amended during the times when some of the salient events occurred. The relevant charges are sexual interference and sexual assault.

3Prior to May 1, 2008, section 151(a) of the Code read as follows:

151. 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 14 years

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of forty-five days. [emphasis added]

4Effective May 1, 2008, the words “14 years” were replaced with the words “sixteen years”.

5It is alleged that sexual activity occurred between C.H. and Mr. Hamilton between January 1, 2008 and August 1, 2009. Between January 1, 2008, and March 12, 2008, C.H. was 13 years old, and thus any sexual activity would have contravened s. 151 on the part of Mr. Hamilton. Between […], 2008 and April 30, 2008, she was 14 years old, and sexual activity would not have contravened the section on the part of Mr. Hamilton. From May 1, 2008 to August 1, 2009, she was either 14 or 15 years of age, and thus sexual activity with Mr. Hamilton would again have been unlawful on his part. Mr. Hamilton is now 30 years old, and in 2008 he was 26.

6It is alleged that Mr. Hamilton committed a sexual assault on J.H.1 during the month of August, 2007, when she was 15 years old. Accordingly, the Crown must prove lack of consent as an essential ingredient of the offence.

7It would be inadvisable to attempt to delineate all of the evidence called over eight days. I will attempt to summarize the salient parts.

8C.H. was born on […], 1994. Accordingly, on January 1, 2008, she was 13 years old. She was in grade 8, at an elementary school in Burlington.

9Ms. C.H.’s parents had broken up in November, 2007. She had a difficult relationship with her mother. She lived after the breakup with her father. Her sister moved to Alberta.

10Her best friend was J.G., who is approximately one year older than Ms. C.H.. Ms. J.G. was born on […], 1993.

11At the time Ms. C.H. was in grade 8, Ms. J.G. was in high school in grade 9. They would hang out at least once or twice a week, and Ms. C.H. would often stay at Ms. J.G.’s house on weekends.

12Ms. C.H.’s father was an electrician. He would leave for work very early in the morning, usually before Ms. C.H. woke up. He was often not around on weekends. He would play soccer.

13Another friend of Ms. C.H.’s was J.H.1, although she was not as good a friend as Ms. J.G..

14Ms. C.H. testified that on December 30, 2007 (two days before New Year’s Day), she and Ms. J.H.1 were having a sleepover at Ms. C.H.’s house. They began texting people from numbers in each other’s phones, as a way of joking around. Ms. C.H. testified that Ms. J.H.1 had Mr. Hamilton’s number in her phone, and Ms. C.H. texted him. Mr. Hamilton and Ms. J.H.1 had worked in restaurants next door to each other, and apparently knew each other slightly.

15Once Mr. Hamilton received a text from Ms. C.H., he texted back, asking “who is this?” After some messaging back and forth, Mr. Hamilton asked if Ms. C.H. wanted to hang out with him.

16The next morning, on December 31, 2007, Mr. Hamilton called Ms. C.H. and asked whether she wanted to hang out with him later on. Ms. C.H. did not say yes or no, but indicated she had plans later in the day. In fact, she was planning on attending at a gathering at Ms. J.G.’s home that evening.

17There was, indeed, a gathering at Ms. J.G.’s home, and Ms. C.H. arrived sometime after 6:00 o’clock p.m. A number of her friends were there, including Ms. J.G. and Ms. J.H.1.

18Mr. Hamilton called Ms. C.H. at approximately 12:30 a.m. on January 1, 2008. They had a discussion about some common interests, including music. Ms. C.H. testified that they each disclosed their respective ages, namely, 26 in the case of Mr. Hamilton, and 13 in the case of Ms. C.H.. Mr. Hamilton advised that he would be off work early that morning, and asked if Ms. C.H. would like to hang out with him. She said she would. Mr. Hamilton said he would pick her up at Ms. J.G.’s house after he finished work. He was working a night shift, and usually finished work at approximately 7:00 a.m.

19Ms. C.H. testified that Mr. Hamilton called her early in the morning and said he would be there soon. She said she waited for him on the street, and he arrived in a van. She got into the van and they drove to his house, which took about ten minutes. It was a townhouse in Roundtree Manor, which is near Burlington Mall.

20Ms. C.H. testified that Mr. Hamilton had two roommates in the townhouse, who were not there when they arrived. They went upstairs to Mr. Hamilton’s bedroom. On the walls of the bedroom, and on the ceiling, were many CD album covers. There was a stand with a television set, a box with clothes and a stereo, and a bed over which had been constructed a deck made out of wood, and on the deck were a couch, a coffee table and a small fridge. The table had wax on it.

21It turned out that they had a common interest in bands. Mr. Hamilton was a vocalist in one or more bands.

22Ms. C.H. testified that after they arrived in Mr. Hamilton’s room, he put on a DVD, and then proceeded to have a shower. After he got out of the shower, Mr. Hamilton kissed her while she was sitting on a box in the room. While they watched a DVD, he kissed her on the lips. They proceeded to sit on the bed and Mr. Hamilton tried to touch her on the vagina. Ms. C.H. testified that she was scared, she was menstruating, and she did not know what to do. Ultimately, she gave Mr. Hamilton oral sex. He made it clear that he wanted to have sex with her.

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