ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-083
DATE: 2012-04-30

B E T W E E N:

HER MAJESTY THE QUEEN,

Peter Keen , for the Crown

• and -

T.B.,

Aaron Seib , for the Accused

Accused

HEARD: March 28, 29 and 30th , 2012, at Kenora, Ontario

Mr. Justice F. Bruce Fitzpatrick

WARNING

A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING

UNDER S. 486(3) OF THE CRIMINAL CODE OF CANADA

Reasons For Judgment: Delivered Orally

[ 1 ] M.W. complains she was sexually assaulted a number of times in the early morning hours of December 23 rd , 2010. She claims she was assaulted by the accused T.B.. At the time M.W. was twelve years old and Mr. B. was 26 years old. M.W. says the assault took place in the basement and in an upstairs bedroom of a townhouse where Mr. B. was living with his girlfriend N.A. The townhouse was right next door to M.W.’s house.

[ 2 ] At the opening of trial I made an order banning publication of details which would indentify M.W. pursuant to s. 486 of the Criminal Code of Canada . Also, on consent, M.W. was permitted to testify outside of the court room by means of video and with the assistance of a support person. M.W.’s capacity to testify was not challenged under the provisions of the Canada Evidence Act . On the basis of her promise to tell the truth, M.W.’s evidence was received by the court.

[ 3 ] M.W.’s mother, S.W., testified first for the Crown. She knew T.B. through some past family connection. M.W. and Mr. B. were not blood relations but were cousins by marriage. Mr. B. moved next door to the W. family in August 2010. S.W. was friends with Mr. B.’s girlfriend, N.A. M.W. began to visit N.A. frequently and would babysit N.A.’s children from time to time.

[ 4 ] On the evening of December 22, 2010, M.W. went with her mother to Frenchman’s Bay. S.W. played bingo while M.W. visited with her father. S.W. brought M.W. home at which point M.W. immediately went next door to begin a pre-arranged sleep over at N.A.’s townhouse. M.W. slept over so she would be at N.A.’s home first thing the next morning to babysit.

[ 5 ] The next evening when M.W. came home, she did not say anything to her mother, nor did she act in any way that would suggest anything wrong had happened during the sleep over. According to S.W., M.W. went back to N.A.’s place at least once before Christmas and once after Christmas.

[ 6 ] On January 8, 2011, S.W. was told by her son that M.W. claimed she was raped by T.B.. She was understandably upset. M.W. had been taken to the hospital by her friend R.G. S.W. was visiting her boyfriend near Thunder Bay when she got the news about M.W. By the time S.W. returned home, M.W. had gone to her uncle’s house and was with a number of her friends. During her testimony, S.W. recounted what M.W. had told her about the night in question. This hearsay evidence was admitted not for the truth of the statements made but as part of the narrative of S.W.’s evidence. Among other things, S.W. said that M.W. had told her Mr. B. had tried to put his head between her legs and lick her vagina. M.W. did not mention this particular allegation during her examination in chief to this Court.

[ 7 ] M.W. also told her mother that she had been drinking the night Mr. B. is alleged to have assaulted her. When M.W. had come home in the afternoon of December 23, S.W. did not detect any signs that her daughter had been drinking. Of course, she did not approve of her 12 year old daughter drinking. M.W. had been caught drinking in the past and, as a result, was grounded for two weeks.

[ 8 ] M.W. was then called by the Crown.

[ 9 ] On December 22, after M.W. came back from Frenchman’s Bay with her mother, she went over to N.A.’s place. N.A. and Mr. B. were drinking. They allowed M.W. to drink. By about 2 in the morning, N.A. was so drunk that M.W. had to help her up to bed, which was on the third floor. After putting N.A. to bed, M.W. went back downstairs.

[ 10 ] She took a seat in front of N.A’s laptop computer and went on Facebook. Mr. B. was in the room. According to M.W., Mr. B. wasn’t that intoxicated. He put his arm around M.W. She looked at him with a “what are you doing” stare but it did not deter him. He pulled M.W. to the floor. At trial M.W. said that Mr. B. did this by pulling on her shoulders. The Crown admitted that in M.W.’s first statement given to the police on January 9 th , 2011, she had indicated that Mr. B. pulled her down by the waist. This was an admitted inconsistent statement by M.W.

[ 11 ] While on the floor, M.W. said that Mr. B. first put his hand on her vagina over her clothes. He then put his hand in her leggings and inserted his finger in her vagina. He then pulled down her leggings and underwear and inserted his penis in her vagina. M.W. had quite a bit of difficulty recounting this portion of her evidence and was crying during her testimony.

[ 12 ] M.W. said she pushed Mr. B. off of her after a few minutes. Mr. B. said that he was sorry for what he did. M.W. went back on Facebook and pretended that the previous events didn’t happen. Mr. B. then said “if you won’t do anything with me why don’t you kiss me”. M.W. looked away. Mr. B. pulled her to the floor again.

[ 13 ] Again, Mr. B. pulled her leggings and underwear down and penetrated her with his penis. She was so scared that she didn’t move. She claims that on this occasion “he put his penis in her butt”. In her first and second statements to the police she indicated that Mr. B. had “put his penis in her butt” while in bed upstairs on the third floor. She did not mention this at the preliminary inquiry. Clearly, M.W. differentiated vaginal and anal penetration in the course of her testimony. As to where she was physically when these acts occurred was not clear from her testimony. However, I took from her evidence that there were two separate acts of sexual assault occurring at two clearly different times.

[ 14 ] In the course of being cross-examined, it appeared that M.W. had difficulty estimating precisely the length of time over which the various alleged acts occurred. She was directed to her statements given at the preliminary inquiry where she said that the acts took place over 15 to 20 minutes. She appeared reluctant to answer questions about how long the alleged assaults went on but finally said that she didn’t know how long it was, but that he was “in her” for a long time. She was quite upset during this portion of her testimony. She said she didn’t keep track of the time while it was occurring.

[ 15 ] After Mr. B. finished touching her in various ways he said that he was sorry. He also told M.W. that he had been sexually assaulted when he was seven years old by his uncle. M.W. said this made her feel sorry for him. Mr. B. tried to have M.W. sit on his lap. She refused. She logged off of Facebook, grabbed her camera and went upstairs.

[ 16 ] M.W. went to the bathroom and then crawled in to bed with N.A. In the morning, M.W. awoke to find Mr. B. on top of her. Her leggings and underwear were pulled down to her knees and again Mr. B. was penetrating her. She pushed him off and told Mr. B. to leave her alone. She then began arguing with Mr. B.. Mr. B. said things like “I bet you hate me more now” and “why do you try to break up me and N.A., she tells me everything”. N.A. did not awake during this encounter according to M.W.

[ 17 ] In the course of the argument, M.W. claims that Mr. B. said “you may be young, but your body is not”. M.W. said that on one prior occasion, Mr. B. had touched her vagina over her clothes.

[ 18 ] Later that day she reported that “white gooey stuff” came out of her vagina. She also stated that her vagina and butt “hurted”. When asked about how she felt during the assault, she said that she did not like the feeling.

[ 19 ] M.W. went back to N.A.’s place on a number of occasions before she told people about the assault. However, she tried to stay away from Mr. B. on those occasions. She claims she did not drink on those further occasions. This was contradicted by N.A.’s testimony who claimed she gave M.W. alcohol on Christmas Eve. Eventually she told her brother, and then a number of her friends and her mother about the incident, but she didn’t tell everyone everything that happened. M.W. went to see a sexual assault nurse and a doctor in early January, 2011 after she first told her brother about the assaults.

[ 20 ] When M.W. made her first statement to the police, she did not admit she had been drinking with Mr. B. and N.A. She was afraid that N.A. would get in trouble for supplying liquor to a minor. She admitted that she had lied to the police about this. N.A. was a good friend of M.W.

[ 21 ] N.A. then testified for the Crown. As far as the evidence of N.A. goes, I agree with the Crown’s submission that she gave her evidence in a fair way. She indicated that she treated M.W. “like her little sister”. She corroborated that she and Mr. B. gave M.W. alcohol the night of the incident. She admitted that she did not tell the police this originally because she was afraid the police would take her own children because she was serving liquor to a minor. Upon further reflection however, given the gravity of the allegations by M.W. against Mr. B., she “came clean” and advised the police of the drinking. She corroborated that she was intoxicated that evening, that M.W. helped her upstairs and that when she finally did awake in the morning, there was an argument going on between M.W. and Mr. B.. Following the night in question, N.A. testified that M.W. seemed “mad” at Mr. B. and appeared to want to avoid him.

[ 22 ] What she didn’t specifically corroborate were the acts that occurred in the basement and the acts that allegedly occurred in the bed. However, she did testify, and I accept that she witnessed behavior between T.B. and M.W. prior to the night in question that can be classified as more than “play fighting”. She testified as to an incident where T.B. would grind his pelvis up against M.W.’s buttocks. She characterized it as T.B. “feeling up” M.W. This is not, in my opinion, appropriate play fighting between a 26 year old and a 12 year old. From this evidence I accept the Crown’s theory that T.B. was exhibiting a prior sexual interest in M.W. This explains objectively why he would take the occasion, when his own girlfriend was intoxicated to the point of passing out, to take his sexual interest in M.W. to a more significant level.

[ 23 ] I accept that N.A. was giving her evidence in a forthright and believable manner. I accept that she did not witness a sexual assault occurring beside her on the morning of December 23. However, I find given her state of intoxication which has been admitted, she did not wake up for during the assault in the bedroom. She did, however, wake up when Mr. B. and M.W. were arguing in loud voices. This is understandable.

[ 24 ] Armand Cummings and Joanne Wassaykeesic were also called as Crown witnesses. They resided briefly with Mr. B. and N.A. in the fall of 2010. They testified about the incidents of M.W. and Mr. B. play fighting. In particular Mr. Cummings. testified that he had witnessed an incident where T.B. was grinding up against M.W.’s buttocks. Mr. Cummings admitted that he and T.B. did not get along, and both he and Ms. Wassaykeesic had been asked to leave about a month before the incidents at issue in this trial occurred.

[ 25 ] Iris Wujanz an RPN was called as the final Crown witness. Ms. Wujanz had training as a sexual assault nurse. Medical records were introduced through Ms. Wujanz. These records indicated the results of M.W.’s encounter with medical professionals once she had revealed her story to her brother in early January 2011. Ms. Wujanz, testified that M.W. confirmed she had been penetrated both vaginally and anally. She testified that she did not take any specimen samples from M.W. because of the lapse in time from the date of the assault to the date of the exam. She did confirm that a doctor’s exam of M.W. revealed no rash or discharge in M.W.’s groin or buttocks area.

[ 26 ] T.B. did not call any evidence.

[ 27 ] Despite the evidence of the various Crown witnesses, in my view, the question of whether or not the Crown has proved beyond a reasonable doubt the various elements of the charges against T.B. comes down to an assessment of the credibility of M.W.’s testimony. It was clear from the manner in which M.W. testified that she was traumatized by the events of December 22 – 23. She was careful in her responses and was clearly upset by having to recount the events of the evening in question. She fidgeted and seemed distracted at many times during her testimony, but to me, the answers she gave to the questions and the manner in which she responded indicated that she completely understood the questions and was answering them to the best of her ability and in a truthful way. She cried on several occasions and for a portion of her testimony hid her face in her sweater. However, she was responsive to the questions and corrected counsel several times when they made minor errors like referring to her as N.A. instead of M.W.

[ 28 ] In assessing the credibility of her evidence I was guided by the direction of the Supreme Court of Canada in R. v. B.(G), 1990 , [1990] S.C.J. No. 58 where the Court stated:

“While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the “reasonable doubt” is not necessarily appropriate in assessing the credibility of young children.”

[ 29 ] During cross-examination of M.W., counsel for Mr. B., focused on some inconsistencies in M.W.’s testimony in comparison to earlier statements she had given to the police. M.W. had difficulty dealing with these inconsistencies but I find her difficulties did not indicate her present testimony was untruthful or unreliable. Instead, these difficulties suggest that she had a problem understanding why counsel would continue to ask her the same type of questions over and over. I do not fault counsel for Mr. B. for anything he did in the course of conducting the cross- examination. However I believe that for a child of M.W.’s age, (14), this form of examination can be confusing and difficult, particularly given the subject matter. Counsel for the Crown and Mr. B. were able to agree, mid trial, to five inconsistencies in M.W.’s testimony in chief, which derived from three prior statements she made. The exact text of the agreement is as follows:

“Five Inconsistencies agreed upon – Re: M.W. Testimony

First Statement – video statement taken after hospital visit, after midnight on January 9, 2011.

Second Statement – video statement taken on January 11, 2011.

Preliminary Inquiry Testimony – given on August 16, 2011.

1. In the first and second statements, M.W. indicated that T.B. put his penis into her butt upstairs in her bed. She did not mention this at the preliminary inquiry. In the testimony at trial, M.W. indicated that T.B. put his penis into her butt in the basement.

2. In the first statement, M.W. indicated she was pulled down from behind by the waist by Tim. In her testimony at trial, she indicated she was pulled down by her shoulders.

3. In her first statement, M.W. indicated she was being licked ‘down there’ indicating her vagina. She did not mention that here, nor at the preliminary inquiry.

4. In her second statement, M.W. said that Tim put his fingers in her butt upstairs. She did not mention that at trial.

5. In her first statement to the police, M.W. indicated that Tim was “jacking off” on the bed upstairs after the sexual contact in N.A.’s bed. She did not mention that at the trial.”

[ 30 ] In dealing with these inconsistencies I have used my common sense to decide whether or not they indicate that M.W. was, or was not, telling the truth when she testified that she was sexually assaulted by T.B.. In my assessment, these inconsistencies are not of a sufficient nature to lead me to disbelieve the essential, and unshaken aspect of M.W.’s testimony, namely that she was touched in a sexual manner, and penetrated vaginally and anally by T.B.. She clearly and directly recounted the acts of being penetrated both vaginally and anally during the evening in question. She did not resile from this position during cross-examination. Her description of the events was not given in a way that I took her to be exaggerating or making up details of what occurred. She did not vary from her testimony concerning the essential element of the offence, namely that T.B. intentionally applied force to her and that the force took place in circumstances of a sexual nature. Given the provisions of s. 150 of the Code and M.W. and Mr. B.’s respective ages, the elements of consent and knowledge of consent was not a relevant consideration in coming to a conclusion concerning the evidence of M.W.

[ 31 ] I also find that M.W. evidence that she was assaulted is made more credible by the evidence of prior sexual interest demonstrated by Mr. B.. To the extent that both N.A. and Mr. Cummings noticed prior incidents of inappropriate contact between Mr. B. and M.W., I am assisted in assessing M.W.’s evidence as credible. Also N.A.’s evidence concerning the argument that occurred in the morning of December 23 rd , and her evidence concerning M.W.’s avoidance of Mr. B. corroborates her evidence of being assaulted. Accordingly I find that T.B. intentionally applied force to M.W. by touching her in a sexual nature using both his penis and his hands.

[ 32 ] As to where in the house the assaults occurred, I wish to address the inconsistencies noted as numbers 1 and 4, which relate to where she was when she alleges that “T.B. put his penis in her butt” and whether or not he penetrated her anus with his fingers. Because of the physical nature of this act, where the victim was unable to see the assailant during this aspect of the assault, it is understandable that this may confuse the victim as to where, in a residence, the act was happening. All of the acts complained of would be new, or would at least be very unfamiliar to a twelve year old. The assault would have been traumatic and frightening, and the experience of having an erect adult male penis placed around the area of a child’s buttocks, would be of such a traumatic nature as to cause difficulty in remembering the location in the residence where it occurred, in light to the totality of the act.

[ 33 ] As to the inconsistency noted in number 2, which dealt with the manner in which she was dragged down to the floor, this in my view does not create a reasonable doubt in my mind that M.W. was sexually assaulted. I find that in the course of committing acts of sexual assault Mr. B. pulled M.W. to the floor. Whether he did it by her shoulders or her waist is inconsequential and does not lead me to disbelieve M.W.

[ 34 ] To the extent that any of the inconsistencies gave me any cause to disbelieve M.W., I was most concerned about inconsistency number 3: the failure to mention the alleged “licking” at trial. S.W. testified that M.W. indicated that sexual activity of this specific nature occurred when M.W. first told her about it. However, in the context of all of M.W.’s evidence, and the nature of what is alleged to have occurred, I find that her failure to mention this different type of sexual assault at trial, does not detract from my overall assessment that M.W. was telling the truth: on the night of December 22 – 23 she was sexually assaulted by Mr. B., who used both his hands and his penis to carry out the act. For me, the nature and extent of the differences in her trial testimony, when compared to the prior statements, were not sufficient to establish a reasonable doubt about the facts as alleged by the Crown. Also, all of these inconsistencies did not raise a reasonable doubt that was sufficient for me to disbelieve M.W.’s testimony about being sexually assaulted that night. I did not assess M.W.’s failure to mention any “licking” as a significant inconsistency because she did not waver from her assertion that she had been assaulted at least twice by acts of penile penetration and that Mr. B. had inappropriately touched her; an act, to which a person of her age could not have given legal consent.

[ 35 ] As for the incident later the next morning, I find that a sexual assault did occur. The fact that N.A. did not witness it, indicates that she was just waking up from a drunken stupor. What Mr. B. was doing, either attempting penetration, or “jacking off” (as per inconsistency number 5) were both of a sexual nature and to my mind, constituted a sexual assault. The exact timing of this assault in the bedroom was not explored in detail either in direct or cross-examination. However, I accept M.W.’s testimony that it occurred.

[ 36 ] In addition to the five enumerated inconsistencies, in argument counsel for the Crown conceded that there were other inconsistencies with respect to other aspects of M.W.’s testimony. These were with regard to the length of the alleged assault, the fact that M.W. continued to visit N.A. after the assault occurred and the fact that she was drinking underage which was not initially disclosed to the police.

[ 37 ] I do not find that any of these other inconsistencies lead me to have a reasonable doubt about the proof of the offence by the evidence tendered by the Crown, and in particular the evidence given by M.W. As far as the alleged inconsistency concerning timing, or the length of time over which the assault occurred, I adopt the reasoning of R v. B. (G.) . In my view, M.W.’s differing estimates of the time of the occurrence, which ranged from 15 minutes to one hour, are not of such a significant difference as to lead me to call into question the fact of the incident. Given the age of the witness, her estimates of time were not so wildly disparate as to cause me to have any concern that in fact the incident of sexual assault occurred.

[ 38 ] The fact that M.W. continued to visit N.A. after the assault is consistent with her testimony that initially she was trying to pretend it did not occur. I believe she was genuinely surprised, confused, frightened and hurt by the incident. She obviously put a great deal of trust in N.A. Clearly she could tell that she had made a mistake by accepting alcohol from her friend and she knew her friend could get in trouble for what she had done. However, the magnitude of what had been done to her by T.B. makes it understandable that she would continue to seek some solace from her friend while trying to sort out what to do about what had been done to her. I understand why she would not have been immediately forthcoming to the police about drinking on the night in question.

[ 39 ] When M.W. finally mustered the courage to tell somebody about what had happened, I believe that she did not wish to compromise the impact of her story by admitting that she had been doing something that she knew was wrong. For a person of her age, in her early teens, I do not find that M.W.’s failure to immediately disclose the fact that she was drinking raises a reasonable doubt about the veracity of her testimony about the sexual assault. There was no evidence that M.W. had any prior sexual experience or had been exposed to material that would permit her to fabricate her story based on other things that she had seen. I accept in these circumstances that there would be a reluctance to immediately alert her mother or siblings to the occurrence of the assault, particularly because M.W. had been drinking herself, an action she clearly acknowledged was wrong. During her prior statements and during her testimony at trial, she maintained the consistent thread that she had been vaginally and anally penetrated by Mr. B. and was also touched by him in a sexual manner. On these points, M.W. did not waver.

[ 40 ] I am therefore satisfied beyond a reasonable doubt that on December 23 rd , 2010, at the municipality of Sioux Lookout in the said region, T.B. did commit a sexual assault on M.W. contrary to s. 271 of the Code . As acknowledged by the Crown in its submissions at trial, the sexual assault conviction precludes a conviction of touching, for a sexual purpose, a person under the age of sixteen. This is in accordance with the principle set out in the Supreme Court of Canada’s decision in Kienapple v. The Queen, 1974 , [1975] 1 S.C.R. 729. Accordingly, the charges against T.B. under count 1, namely the offence contrary to s. 151(a) of the Code is hereby stayed. A conviction will be registered with respect to the charges on count 2 of the indictment.

[ 41 ] When do counsel wish to make submissions as to sentence?

_______________ ”original signed by”_ ___

The Hon. Mr. Justice F. Bruce Fitzpatrick

Released: April 30, 2012

COURT FILE NO.: CR-11-083
DATE: 2012-04-30

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – T.B., Accused REASONS FOR JUDGMENT WARNING A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING UNDER S. 486(3) OF THE CRIMINAL CODE OF CANADA Fitzpatrick J.

Released: April 30, 2012

/mls