COURT FILE NO.: 1616/12

DATE: 2012-12-06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

P.L.

ANIKO COUGHLAN, for the Crown

JAMIE GUGGISBERG, for the P.L.

HEARD: November 20, 2012

DESOTTI, J.

A. The Facts

[1] The accused, P.L., is charged with one account of sexual assault. The count reads as follows:

That on or about the 28th day of November in the year 2010, at the Town of Plympton-Wyoming in the Province of Ontario, did commit a sexual assault on B. M., contrary to section 271 of the Criminal Code.

[2] The complainant and her boyfriend decided to come home to Sarnia from their respective universities of Ottawa and Western. The sleeping arrangements at the residence of the complainant, was that her boyfriend would sleep in the laundry room and the complainant would sleep in her room. This sleeping arrangement changed when the complainant indicated that she preferred to sleep in the den on a pull-out mattress beside the fireplace as her room was cold. This change in sleeping arrangements was made known to the complainant’s mother and the accused prior to the parties retiring for the evening.

[3] The allegation is that sometime during the evening of November 28th, 2010, while the accused’s step-daughter was sleeping in the den proximate to the fireplace, the accused entered the den and touched the complainant’s vagina. The complainant remembers that when she was awakened by the touch, she observed the accused’s face very close to her and that his back was to the fireplace.

[4] As stated by the complainant, she awoke startled and confused and then went crying to her boyfriend’s room. Her boyfriend, K.V., was told that the accused had touched her vagina. Mr. K.V. comforted her for the rest of evening. The accused, early the next morning, initially went about his normal routine with his wife, the complainant’s mother, until confronted by the complainant who had arisen unusually early with her boyfriend as well.

[5] The accused denied the incident had occurred but Mr. K.V. also indicated that that the accused stated that “he had thoughts about her” prior to his stoking the fire. No one knows exactly what the accused meant when he said he had thoughts but the inference is that they were of a sexual nature. The complainant’s boyfriend indicated that he believed that the accused also stated that “he denied that he took anything from her sexually”. In cross-examination the boyfriend reaffirmed what he heard the accused say and indicated “he was denying... I didn’t do anything sexual, I didn’t do anything inappropriate”.

[6] The complainant indicated that the next morning when her mother asked her why she hadn’t slept by the fireplace, her response was that “P.L. could tell you something about that” and then when the accused responded “what are you talking about”, the complainant called the accused a “sick fuck”.

[7] The complainant also remembers her step-father denying the allegation and stating repeatedly “B. don’t do this, don’t do this”. The complainant also remembers that the accused gave a number of different explanations as to what he was doing by the fire. He indicated that “he was just fixing the fire”, that “he was just touching me to see if I felt cold”, and another explanation “was that he had made some noise while fixing the fire and it had kind of disturbed me a little and he was just touching me in a, reassuring way”.

[8] The complainant’s mother, H. L., indicated that when confronted by her daughter, the accused indicated that he was “fixing the fire”. However, she remembers her daughter saying to the accused if “you were fixing the fire you wouldn’t have been facing me, you were knelt down”. She also confirms that at no time did the complainant indicate to her or anyone present that morning that the accused had touched her vagina. In fact Ms. L. believed that the accused had touched her daughter’s breast and gave this account in her statement to the police.

[9] Ms. L. went on to indicate that she demanded to know why her husband was fixing the fire as that time of year did not require the fire to be stoked and particularly since her daughter was sleeping proximate to the fireplace. She also indicated that the accused stated “I was having thoughts, that’s what got me out, out here, but I didn’t do anything”. Later on he stated again “thoughts got me there”.

[10] When she then stated that she could not remain married to him, she described the accused smiling nervously back at her. She also indicated that she told him that he needed counselling.

[11] In addition, she indicated that shortly thereafter when she was comforting her daughter in her bedroom, the accused entered the room and went down onto a mattress as if he was going to beg and he stated “don’t do this, I just touched you to see if you were cold”.

[12] In answer to the question about whether the fire needed stoking or further firewood, she explained that once properly stoked and dampered down, there would be no need to attend the fireplace as the fire would burn all evening and certainly “not with somebody sleeping there”.

[13] The complainant’s mother also indicated in response to a question by defence counsel that the accused had previously indicated to her that he found her daughter attractive enough that he looked into her window while she was undressed.

[14] While I conclude that this answer by the complainant’s mother was an honest response to a question posed by defence counsel, I have purposely not considered this answer as any indication that the accused had any sexual predilection towards his step-daughter. I would have admonished a jury to disregard this answer and there was no other evidence or similar fact evidence that was sought to be adduced by the Crown.

[15] The accused took the witness stand and confirmed that he was aware that his step-daughter would be sleeping beside the fireplace that evening. He also indicated that it was cold in his bedroom and inferentially he knew the rest of the house would be cold and that this was the reason he went to put more wood in the fireplace.

[16] This necessity to stoke the fire was in direct conflict with the evidence of the complainant’s mother, H. L., who indicated in the clearest way that the fire did not need to be stoked that evening. The accused indicated that he had to get up every night to put extra wood in the fireplace.

[17] The accused also indicated that the complainant was covered with her duvet at the time. This was also exactly opposite the evidence of the complainant who indicated that she was uncovered and that she must have kicked her duvet off during the evening. She surmised that she must have been warm to do this and subsequent to the alleged sexual assault she had pulled her duvet back onto herself.

[18] The area where the accused crouched over and placed the wood in the fireplace was a decidedly small space or area because at the time the complainant was sleeping on a mattress that was proximate to the tile that was right beside the fireplace. The opening of the fireplace door made a creaking sound and the placing of the wood in the fireplace would be an awkward movement particularly in circumstances where the accused had to avoid stepping on the complainant. As confirmed by the accused, in order to perform this task, the accused was crouched onto his ankles in front of the fireplace.

[19] The accused indicated that when the fireplace door was closed a creaking sound must have woke the complainant because she rolled in her blanket (I infer towards the accused) and the accused indicated that he said “it’s okay B., I’m just loading the fire”. The accused does not indicate that anything else occurred after that response and he went back to bed.

[20] The accused indicated that after the first greeting with his step-daughter B. that morning as a result of some word or gesture on her part, he was asked if he knew what she was alleging and he denied understanding or knowing what his step-daughter was talking about. He went on to indicate that he said “this is, this is awful, don’t do this”.

[21] The accused went on to say that he stated to B. in her room the following:

B., since nothing happened , you know nothing happened, don’t do this, why, why are you saying these, you know, I have no understanding of why you’re doing this, why are you doing this?

[22] The accused then, in a most curious way, describes what he was thinking about during this traumatic unfolding event in reference to his wife’s actions and response as follows:

She’s going into this territory again based on her historic past and that she projects it into things, and so I have to be very careful, very delicate in these times, and what I’ve learned is the best thing to do is let everybody calm down, and at that point, it’s like, I look at, you know, B.s going to have to go back to school, this isn’t going to solve before that happens, I’ll just go.

[23] The accused when asked by his counsel if he understood what the specific allegation was made against him by his step-daughter, he answered this question by stating “I had no idea”.

[24] The accused acknowledges that the fireplace had plenty of wood when he went to bed and that while placing more wood in the fireplace he would have been crouched on his ankles facing his step-daughter but that his back was not facing the fireplace.

[25] The accused, in response to cross-examination by the Crown about having thoughts about B. stated that he did not recall making that statement. Continuing this line of questioning the Crown asked:

Q. But it’s possible you said it, but you just don’t remember?

A. If it’s something that I said, I don’t remember.

[26] Further on the Crown continues as follows:

Q. All right. And do you recall saying that you didn’t take anything sexually from her?

A. No.

Q. So you don’t recall saying that?

A. No.

Q. But it’s possible that you did say it that you just don’t remember?

A. I would’ve said, I haven’t done anything to deserve an accusation, there would’ve been some words towards that, I don’t remember what they were.

[27] In response to my inquiry at the end of the cross-examination, if the accused was begging for some forgiveness from someone, the accused indicated:

A. No, for what was happening not to happen, I was begging.

[28] In re-examination, counsel for the defence asked the following question:

Q. Sir, I may have led you here, but I asked you when you first came to understand what the allegations were against you, I take it sir, you had some understanding of the nature of what was being alleged at the time?

A. Yes.

B. Analysis

[29] In reference to W. (D.), I must look at the accused’s testimony as follows:

If I believe the accused’s evidence that he did not sexually assault the complainant then I must find the accused not guilty;

Even if I do not believe the accused’s evidence, if it leaves me with a reasonable doubt about the accused’s guilt or about an essential element of the offence charged, I must find the accused not guilty;

Even if the accused’s evidence does not leave me with a reasonable doubt of his guilt or about an essential element of the offence charged, I may convict the accused only if the rest of evidence that I do accept proves his guilt beyond a reasonable doubt.

[30] After hearing numerous sexual assault trials, inevitably the evidence of the complainant is put under significant defence scrutiny to ascertain whether there are any inconsistencies, or any attempt to manufacture details, or hyperbolize the circumstances of the alleged sexual assault. This does not mean that where I have found, for example some inconsistency, that the complainant’s evidence in that trial thereafter lacks the ring of sincerity or truthfulness. Obviously, the inconsistency must be material and significant such that it undercuts the credibility of the witness.

[31] Furthermore, I am also most mindful that when any complainant gives evidence in any sexual assault trial, the victim must give evidence about the trauma of the alleged event; the victim is exposed, usually for the first time, to the unfamiliar setting of giving testimony at a trial; and throughout this occurrence, the victim experiences a high sense of angst and nervousness. This reality is even more emboldened when the same witness realizes that every word she/he utters is under intense scrutiny and assessment.

[32] Likewise, the accused often for the first time must experience precisely the same angst; experience the scrutiny of every word he/she utters; and have the entire process of a state’s intervention seemingly overwhelm him/her as he/she defends himself/herself against the charge(s).

[33] In this contest, the accused has both the presumption of innocence and the knowledge that the onus is on the Crown to establish guilt beyond a reasonable doubt. The accused as well has chosen to give evidence under oath to explain the circumstances that arose on the evening of the 28th of November, 2010 and has denied that he sexually assaulted the complainant B.

[34] The accused indicated that he got up that night to put wood in the fire because he found the bedroom cold and thus he presumed the house would be cold as well. He knew his step-daughter would be present beside the fireplace and would be mere feet from his activity to place additional wood in the fire. He then describes how he gathered the wood so that he would not wake his step-daughter by circumventing the fireplace through the kitchen.

[35] I pause here because this careful attempt to avoid waking B. makes little sense when he is about to be so proximate to his daughter and knows that the door to the fireplace gives off a decided creaking noise that he indicated ultimately woke his step-daughter in any event.

[36] In other words, if the house is getting cold such that the accused must stoke the fireplace, (the accused states that he must stoke the fireplace every evening) then why not wake the step-daughter and let her know that he is about to enter this very close space to perform this necessary task, a task that required both agility and some careful manoeuvring given the proximate position of the step-daughter on the mattress adjacent the fireplace.

[37] The evidence of the complainant’s mother on this point is that the fireplace at this time of season did not need additional stoking and in any event no one should be entering this area if they knew someone would be sleeping proximate to the fireplace.

[38] Having awakened B., the accused attended back into his bedroom. Again I pause in my consideration of this testimony, if B. was untouched and merely wakened by the accused because of the creaking of the fireplace door, why does she depart for the room of her boyfriend crying and telling him that her step-father had just touched her vagina?

[39] There is no issue that the complainant went to her boyfriend’s room crying. Is this a contrivance on the part of the complainant? Is this reaction out of some malice against her step-father? Is this a night terror in the guise of a dream about breakfast and the slicing of a banana?

[40] While it is true that the accused does not need to provide any explanation nor satisfy any onus, when one is offered through the testimony of the accused, careful scrutiny of the explanation is obviously warranted.

[41] In the morning, B. indicated that the accused provided her with three explanations. He stated he startled me because he was just fixing the fire; he was just touching me to see if I felt cold; and the third explanation was that he “made some noise while fixing the fire and it had kind of disturbed me a little and he was just touching me in a reassuring way, just – and that’s what woke me”.

[42] Both the complainant’s mother and the complainant’s boyfriend indicated that the accused stated that he had “thoughts” about B. when he went into the den. The inference from the mother’s evidence was that these thoughts were sexual while the boyfriend’s evidence on this point is less definitive as to what meaning he would attach to this expression although in cross-examination, he does affirm that the accused denied doing anything sexual.

[43] The complainant’s mother indicated that the accused stated to all of them that the accused had indicated that “thoughts got him there” and “I was having thoughts, that’s what got me out, out here, but I didn’t do anything”. The boyfriend remembers that the accused stated that “he had thoughts” and believed that the accused meant “thoughts about her (B.), I guess”. He also remembers the accused was on his knees and begging and that he stated that he “denied that he took anything from her sexually”.

[44] On this latter point about what the boyfriend and the complainant’s mother heard him say about “thoughts”, the accused indicated that he did not recall making that comment. He stated “if it is something that I said, I don’t remember”.

[45] What is also in conflict is that B. indicated that in the morning the accused acknowledged touching her but gave a number of explanations for the touching all of which had an innocent motivation. The accused through his evidence does not acknowledge that he ever touched the complainant only that he spoke to her when she had awakened while he was placing wood in the fireplace.

[46] Before I complete this analysis, I would be remiss if I did not indicate that where the evidence of the accused differs from the evidence of the complainant, the complainant’s mother or the complainant’s boyfriend, I accept their evidence as consistent, truthful and reasonable for the following reasons.

[47] Firstly, when the accused indicated to the complainant’s mother and boyfriend that he had “thoughts”, and both the mother and boyfriend conclude and testify that these “thoughts” were about his step-daughter B., then the driving force or motivation behind the reasons that the accused entered the den could no longer be said to place wood into the fireplace because the house was cold.

[48] If that reason is rejected, then the evidence of the complainant’s mother that there was no need to stoke the fireplace at all at this time of year is no longer an issue and her evidence on this point is clearly preferred. Moreover, her concern that no one should enter a room where someone is sleeping and particularly this room where the complainant would have been so proximate to the fireplace makes perfect sense in the context of this particular evening.

[49] Secondly, the evidence of the complainant B. generally was credible, measured, and without inconsistencies. Thus when she states that the accused touched her vagina and then went crying to her boyfriend’s room affirming the same account with her boyfriend that the accused had sexually touched her, this account has a ring of truth.

[50] The complainant’s evidence throughout her testimony was decidedly convincing but there is one passage that most accurately depicts this attempt by this witness to appropriately respond to a question posed in cross-examination that I noted in my bench book and then retrieved the passage to assist me in my reasons as follows:

Q. And it was sometime later that, presumably, you opened up with some detail, came back and decided to proceed with charges?

A. I genuinely believed that P.L. would admit to it,

Q. So, your explanation for why you didn’t seek the assistance of the police was that you were, it was just a waiting game, waiting to see if P.L. would own up to what you say happened?

A. Yes. I didn’t want to go through this process. It – and I didn’t want his his son’s to know, I didn’t want my dad to know, I didn’t want my brother to know because I knew it was upsetting. So, if there was any way that I could’ve dealt with it and kept it private and not gone through this process, that was obviously what I wanted to do. I assumed that we would work through it the same way that other events like this were dealt with in the home, which was, we would discuss it as a family, get family counselling, see our pastors and, and deal with it that way. I assumed that was how it was going to be dealt with, and that’s how I hoped it was going to be dealt with.

[51] In short, the testimony of the complainant was unimpeached, and there was no credibility ‘potholes’ left at the conclusion of her evidence.

[52] In contrast, the accused gave a most rambling and confusing account of what transpired that morning after the allegation was made by his step-daughter. The evidence of the three Crown witnesses that indicated that the accused seemed to beg for forgiveness; his explanation to this step-daughter about why he was in the room, and why he had touched her; and his forgetfulness about his comments to the parties that he had “thoughts” that had compelled him into the den, were consistent with a guilty mind or guilty conscience.

[53] In his rambling and non-responsive answer to his counsel’s question he states as follows:

Q. All right. What can you bring to the table, what, what is your recollection and your explanation for what transpired in this confrontational discussion that morning?

A. ... And so we were having a normal morning conversation, so that was carried straight into the first greeting with B. and K.V., who were beside each other, and H.L. said, where did you sleep last night, in an investigative, trying to make her feel safe to tell the story, sort of, you guys didn’t, did you, expression, and then I don’t know how the transition from that statement went all to the other ones, I just know that B. had, whether she said a word or whether she visioned something or physically moved her body in a way, within a few seconds it was like B. had motioned, as if there was an allegation, and then H.L. had moved as if she had accepted there was some allegation, and, and then this, what I says, oh boy, here they go, it was familiar to me to see that happen, and H.L.’s lack of ability to communicate healthy after she has this shift is familiar to me. And there was a question as to, you know, well, what are you talking about, and B. said, well, you should know, and I said, no, I don’t, what are you talking about, and then H.L. says, oh, you didn’t, and I said, didn’t what, and then I realized that somebody’s thinking something must have happened because, you know, H.L. is and B. is, and then there’s this hug, and I’m like, what’s going on here, I’m lost with regards to this, and then B. says, well, you should know, and H.L. said, well, what happened, she says, well, you ask P.L., I’m like I still don’t know what you’re talking about, and the conversation moved apart for a bit and I was like, don’t do this, this is, this is awful, don’t do this, and through all the years of parenting, it’s important to always identify with your wife and your daughter and the children, understanding where they are, and I was trying hard to identify and understand where they were as opposed to being confrontational or argumentative, and over the years of having H.L. helping me be a better parent, she said that’s a better approach when there’s conflict. So, the conversation went from that room into B.’s room at some point, and I was like, B. since nothing happened, you know nothing happened, don’t do this, don’t do this, why, why are you saying these , you know, I have no understanding of why you’re doing this? And H.L. was not somebody you could even have a conversation with, there’s no rational thinking or continuous sentence from her, and I’m like, oh great, here she goes, she’s going into this territory again, which is based on her whole historic past, she projects it into things, and so I have to be very careful, very delicate in these times, and what I’ve learned is the best thing to do is let everybody calm down, and at that point, it’s like, I look at, you know, B.’s going to have to go back to school, this isn’t going to solve before that happens, I’ll just go.

[54] Nothing in what was stated by the accused in this non-responsive and non-informative answer, was concrete, specific or in way reflected what was said by the Crown witnesses about what the accused said or what he did. All of the Crown witnesses were mostly consistent in what occurred that morning. Frankly, in assessing the monologue of the accused, I can make little understanding of what took place that morning from the account of the accused.

[55] Clearly, the accused has denied ever touching the complainant in any way, innocently or for any other purpose. Thus, when all of the parties indicate that the accused tried to give an innocent explanation for the touching of the complainant that occurred the night before, I would have expected some direct response. Nothing was forthcoming.

[56] Did he go down on one knee in some sort of begging position or not? I have no answer by the accused.

[57] Nevertheless, putting aside what the complainant remembers that was said by the accused, both the complainant’s boyfriend and the complainant’s mother give accounts about what the accused said that morning about what occurred about the evening before. The boyfriend indicated that the accused stated that morning that he did not do anything sexual or inappropriate and the mother indicated that he told all of them “that I just touched you to see if you were cold”.

[58] While I am urged by defence counsel to disregard the evidence of what the complainant said occurred that evening before, clearly there is a decided conflict in what the accused said he did or didn’t do and what the other two Crown witnesses indicated about what was said and done by the accused.

[59] Confidently, I am satisfied beyond any reasonable doubt that the accused tried to excuse his conduct the night before and in the course of his denial, he has in his testimony at this trial, concocted a version of events that are both untruthful and belie the obvious.

[60] In the result, I am satisfied beyond a reasonable doubt of the guilt of the accused and I have endorsed the indictment, “For written reasons, there is a finding of guilty on Count #1”.

“Justice J.A. Desotti”

The Honourable Mr. Justice J.A. Desotti

Released: December 6, 2012

COURT FILE NO.: 1616/12

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

P.L.

REASONS FOR JUDGMENT

DESOTTI, J.

Released: DECEMBER 6, 2012