ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR12-007-000
DATE: 20121217

BETWEE N:

HER MAJESTY THE QUEEN

M. Martin, for the Crown

and -

P.J.

A. Wilford, for the Defendant

Defendant

HEARD: December 3, 4, 5, 2012

REASONS FOR JUDGMENT

Conlan J.

INTRODUCTION

[ 1 ] Mr. P.J. stands charged with three criminal offences. Those charges are as follows:

Count 1 – that Mr. P.J., between April 11, 2007 and February 28, 2010, at Meaford, did commit a sexual assault on N.S., contrary to section 271 of the Criminal Code of Canada .

Count 2 – that Mr. P.J., between the same dates and at the same place, did for a sexual purpose touch N.S., a person under 16 years, directly with a part of his body to wit his tongue, contrary to section 151 of the Criminal Code of Canada .

Count 3 – that Mr. P.J., between the same dates and at the same place, did for a sexual purpose invite N.S., a person under 16 years, to touch directly with her mouth a part of his body to wit his penis, contrary to section 152 of the Criminal Code of Canada .

[ 2 ] This trial took place in Owen Sound on December 3, 4 and 5, 2012. The Court reserved its Judgment. A publication ban has been ordered on the name and identity of the complainant.

THE LAW

[ 3 ] For the Court to find Mr. P.J. guilty of sexual assault, I must find that the Crown has proven each of these essential elements beyond a reasonable doubt.

i. that Mr. P.J. intentionally applied force to N.S.;

ii. that the force that Mr. P.J. intentionally applied took place in circumstances of a sexual nature.

[ 4 ] Note that consent and honest but mistaken belief in consent, which are normally the second and third elements of a charge of sexual assault, are not applicable here because N.S. is now twelve years old and was even younger during the alleged offence period.

[ 5 ] If Crown counsel has not satisfied the Court beyond a reasonable doubt of each of these essential elements, I must find Mr. P.J. not guilty of sexual assault. If Crown counsel has satisfied the Court beyond a reasonable doubt of each of these essential elements, I must find Mr. P.J. guilty of sexual assault.

[ 6 ] There is no burden of proof on Mr. P.J.. He is presumed innocent of the charge.

[ 7 ] For the Court to find Mr. P.J. guilty of sexual interference, I must find that the Crown has proven each of these essential elements beyond a reasonable doubt.

i. that N.S. was under sixteen years old at the time;

ii. that Mr. P.J. touched N.S.; and

iii. that the touching was for a sexual purpose.

[ 8 ] If Crown counsel has not satisfied the Court beyond a reasonable doubt of each of these essential elements, I must find Mr. P.J. not guilty of sexual interference. There is no dispute about the first element; N.S. was certainly under 16 years old at the time.

[ 9 ] If Crown counsel has satisfied the Court beyond a reasonable doubt of each of these essential elements, I must find Mr. P.J. guilty of sexual interference.

[ 10 ] There is no burden of proof on Mr. P.J.. He is presumed innocent of the charge.

[ 11 ] For the Court to find Mr. P.J. guilty of invitation to sexual touching, I must find that the Crown has proven each of these essential elements beyond a reasonable doubt.

i. that N.S. was under sixteen years old at the time;

ii. that Mr. P.J. invited N.S. to touch Mr. P.J.’ body; and

iii. that the touching that Mr. P.J. invited was for a sexual purpose.

[ 12 ] If Crown counsel has not satisfied the Court beyond a reasonable doubt of each of these essential elements, I must find Mr. P.J. not guilty of invitation to sexual touching. There is no dispute about the first element; N.S. was certainly under 16 years old at the time. If Crown counsel has satisfied the Court beyond a reasonable doubt of each of these essential elements, I must find Mr. P.J. guilty of invitation to sexual touching.

[ 13 ] There is no burden of proof on Mr. P.J.. He is presumed innocent of the charge.

[ 14 ] Mr. P.J. testified at trial. He denied the allegations. If I believe Mr. P.J.’ evidence that he did not commit the offences charged, I must find him not guilty. Even if I do not believe Mr. P.J.’ evidence, if it leaves the Court with a reasonable doubt about his guilt, I must find him not guilty. Even if Mr. P.J.’ evidence does not leave the Court with a reasonable doubt of his guilt, I may find him guilty only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt. This instruction about the evidence of Mr. P.J. applies to each charge. For example, if the evidence of Mr. P.J. leaves the Court with a reasonable doubt about his guilt on one count but not the other two, I must find Mr. P.J. not guilty of the one count and go on to consider the third branch of the instruction with regard to the other two counts.

THE EVIDENCE

[ 15 ] This was a relatively short trial which lasted less than two full days including final submissions by counsel. There were just four witnesses total, including the mother of N.S. whose testimony was brief and the detective who interviewed Mr. P.J. after his arrest whose evidence was limited essentially to the playing of the audio-video interview.

[ 16 ] There were two Exhibits filed: the audio-video interview of Mr. P.J. by the police and its transcript.

[ 17 ] The evidence and submissions by counsel are fresh in my mind as these Reasons for Judgment are being delivered less than two weeks after the completion of the trial.

[ 18 ] In light of the above, no detailed recitation of the evidence is necessary beyond a summary of the salient points.

N.S., the Complainant

[ 19 ] N.S. testified via audio-link from the “child friendly Courtroom” at the Owen Sound Courthouse. That was on consent of the Defence and upon application by the Crown which was granted by the Court. N.S., the Prosecutor, Defence counsel and a representative of the Victim Witness Assistance Program were in the room adjacent to the Courtroom. I was in the Courtroom along with the clerk, the reporter, security and Mr. P.J.. Of course, Mr. P.J. could at all times see and hear what was happening in the adjacent room.

[ 20 ] N.S. is now 12 years old, born on […], 2000. She described in direct examination seven alleged incidents that occurred while she and her family, including Mr. P.J. who was in a live-in relationship with the mother of N.S., resided in Milton. The following is a summary only of what N.S. alleged in her testimony. The first incident was Mr. P.J. playing with N.S. and her sister T. N.S. testified that she saw Mr. P.J.’ penis outside his clothes. The second incident occurred a day or two later when Mr. P.J. said to N.S. “do you want to try it out?” or words to that effect. Mr. P.J. then licked her vagina. The third episode involved Mr. P.J. playing for N.S. a pornographic movie and rubbing his penis outside his clothes until ejaculation. The fourth incident was when N.S. saw Mr. P.J.’ exposed penis while he was laying or sleeping on his bed and N.S. and her friends were playing nearby. The fifth episode involved Mr. P.J. sitting at a table with a computer and exposing his penis and rubbing it under the table while N.S. was underneath hiding from her friend during a game of hide and seek. The sixth incident was when Mr. P.J. put cream on the hands of N.S. and had her rub his penis until ejaculation. The final episode involved Mr. P.J. putting his own finger in to his rectum and saying to N.S. “this is how you do it” or similar words.

[ 21 ] N.S. described in examination-in-chief three alleged incidents that occurred while the family lived in Meaford, after moving from Milton. The following is a summary only of what N.S. alleged in her testimony. The first incident began with N.S. and her sister T. watching a movie on the television in the top floor bedroom of N.S. Mr. P.J. came to the bedroom and then left shortly thereafter. N.S. later went downstairs to play a video game in the living room. At the suggestion of Mr. P.J., he and N.S. went in to T.’s bedroom. Mr. P.J. licked the vagina of N.S., and she sucked his penis. He ejaculated. At the suggestion of Mr. P.J., N.S. tasted the ejaculate but did not like it. They made a deal: N.S. would have to suck his penis if Mr. P.J. licked her vagina.

[ 22 ] The second episode was in the bedroom of Mr. P.J. and the mother of N.S. N.S. was jumping on the bed. Mr. P.J. kissed N.S. He took off her clothing and licked her vagina. The incident ended abruptly when N.S.’s mother arrived home. The final incident happened late one evening in the bedroom of N.S. Mr. P.J. licked her vagina. She was too tired to suck his penis.

In cross-examination, N.S. said that Mr. P.J. never licked her vagina on top of her clothes. When confronted with the transcript of her testimony at the preliminary inquiry nearly one year ago, N.S. said that she did not remember saying then “I think on top of clothes” in answer to the question “Like, when he’d be licking your, your vagina, would it be on top of clothes or would your clothes be off?” The audio recording from the preliminary inquiry was not played at trial.

[ 23 ] In cross-examination, N.S. said that she never touched Mr. P.J.’ bum. When confronted with the transcript of her police interview on May 2, 2011, N.S. said that she did not remember saying then “Um, I had to put my finger in his butt” in answer to a question about where she touched Mr. P.J. with her hands. The audio-video recording of that police interview was not played at trial.

[ 24 ] In cross-examination, N.S. admitted that she did not say in her March 2011 police interview that Mr. P.J. “played” with his penis during the incident when she was hiding underneath the computer table.

S.H., the Complainant’s Mother

[ 25 ] S.H. testified in direct examination that, while the family lived with Mr. P.J. in Milton, she would often leave the children, including N.S., with Mr. P.J. to care for while she went out with friends on the weekends. She said that, after moving to Meaford, Mr. P.J. did not work outside of the home while she worked at Tim Horton’s. Her shifts varied between August and October 2009 and then became consistently 3:00 a.m. to 10:00 a.m. from October 2009 until December 2009. The couple separated when Mr. P.J. moved out of the Meaford home on December 10, 2009. N.S. disclosed to S.H. the alleged sexual activity with Mr. P.J. in the winter 2010.

[ 26 ] In cross-examination, S.H. said that N.S. was very close to Mr. P.J.; that N.S. likes attention; that N.S. was not upset when Mr. P.J. left the Meaford family home in December 2009; that N.S.’s natural father had some pornography; that she discovered that N.S. had contacted Mr. P.J. via Facebook after the separation; that she and Mr. P.J. had no pornography in their homes; and that she went out with her friends every Friday and Saturday evening while the family lived in Milton but did much less socializing after the relocation to Meaford.

Detective Constable Rayna Page of the OPP

[ 27 ] Mr. P.J. was arrested by the police on 14 July 2011. The following morning, he was interviewed by Detective Page. The audio-video interview was played in Court and marked Exhibit 1A. The transcript of the interview was marked as Exhibit 1B, all on consent.

[ 28 ] Mr. P.J. consented to the interview being admitted as evidence at trial without the need for a voir dire . Voluntariness was conceded by the Defence. The interview was not the subject of any Charter Application. Notwithstanding those facts, I can say that nothing I saw, heard or read gives the Court any reasonable doubt about the voluntariness of that interview. Nor is there any reason for the Court to be concerned about any Charter issues.

[ 29 ] Mr. P.J. was at times emotional and appeared distraught during the interview. He cried. Most important, Mr. P.J. denied repeatedly any wrongdoing.

Mr. P.J., the Accused

[ 30 ] Throughout his testimony in both direct and cross-examinations, Mr. P.J. was adamant and steadfast in his denials of any wrongdoing. Specifically, in examination-in-chief, Mr. P.J. denied ever knowingly or intentionally exposing his penis. He stated that he has no memory of N.S. hiding under the computer table while he was sitting at the table. He denied ever touching his penis while at the computer table. He denied ever having touched N.S. sexually in any way whatsoever. He denied ever having licked or touched her vagina. He denied ever exchanging oral sex with N.S. He denied that N.S. ever licked or sucked his penis. He denied any sexual contact between the two of them at all or any invitations by him to her for sexual contact of any kind.

[ 31 ] Items of interest stemming from the cross-examination of Mr. P.J. are dealt with below in the “Analysis” section of these Reasons.

(continued verbatim)