ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 383 / 12 (Gore Bay)

DATE: 2013-09-06

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

Kenneth Prohaska

Respondent

John Benson, for the Crown

Frank Miller, for the accused

HEARD: July 22, 23, 2013 in Sudbury, ON

ORALLY RELEASED: August 9, 2013

in Sudbury, ON

REASONS FOR JUDGEMENT

Hennessy J.:

[1] Kenneth Prohaska was charged with one count of sexual assault and one count of sexual touching with respect to an incident which occurred on Manitoulin Island on August 7, 2011. The complainant was a three year old boy who I shall refer to as “D”.

[2] The facts were set out in pre-trial decisions dated February 27, 2013 and July 22, 2013.

[3] The first decision permitted the Crown to introduce the video statement of the boy which was made on August 7, 2011 and the statement made by the boy to his mother on the same date.

[4] The second ruling permitted the Crown to introduce the video statement of Kenneth Prohaska made August 8, 2011 and the first part of the video statement made August 7, 2011. That ruling also permitted the Crown to rely on utterances made by Kenneth Prohaska in Manitowaning on August 7, 2011 and in Gore Bay on August 8, 2011.

[5] The facts are not in dispute. The incident took place over the space of a very few minutes in a washroom of a campground. The complainant and his five year old sister went to the public washroom at the campground on their own. The sister went into the girls’ side of the building and D approached the boys’ entrance. Kenneth Prohaska arrived at the washroom at the same time and opened the door to the boys’ side. He and D entered the washroom at the same time. At some point Kenneth Prohaska went into the toilet stall where the child was standing with his one piece sleepers down around his ankles. D’s father arrived at the washroom a couple of minutes after his son and saw Kenneth Prohaska leaving the stall. The father immediately pushed Kenneth Prohaska against the wall and began yelling with profanities, demanding answers and putting his hand on Kenneth Prohaska’s chest to detain him. The father told Kenneth Prohaska to show him his campsite and the two men then walked towards their campsites which were across from one another. By the time the men had covered the 100-150 meters to the campsite, Kenneth Prohaska had apologized to the father and said he was just trying to help the boy with his pyjamas. He said he thought the child needed help.

[6] The mother’s evidence is that the scene coming out of the washroom was chaotic and panic filled. Her husband was yelling at her that the accused had been in the toilet stall with their son and that she was to call the police. The child witnessed all of this and watched his father speed off in pursuit of Kenneth Prohaska. He testified that his father ‘freaked out’. At this point the father had not spoken to the child.

[7] The prosecution’s evidence of what happened in the washroom came from the child via the statement made to his mother and later one to the police that same day.

[8] Following the incident, the children followed behind their father, walking back to the campsite while the father continued shouting at Mr. Prohaska. Upon arriving at the campsite, the mother asked the child what happened. The child did not respond verbally but put his hands in front of his crotch. The mother asked if he had been touched anywhere else and the child put his hands to his buttocks. At one point in her evidence, the mother was certain that the child did not use any words to answer her questions. I accept this evidence as her best recollection. At another point she testified that the child said the man had touched him on his bum and his “pecker”. The mother said that if the child only used gestures to answer her questions, she took those gestures to mean that the man had touched him on his “pecker” and his bum. She could not recall the precise words of her questions or the responses.

[9] A neighbour who had been on the girls’ side of the washroom and heard the father shouting then arrived at the campsite and asked the child whether he had been touched. She also told the child it wasn’t his fault.

[10] The mother could not recall if she said anything else to the child at that point. She testified that she was upset and was trying to get to a phone to call the police. In recounting the incident, the mother also said that perhaps the boy had first repeated what his father had said and then had demonstrated where he was touched in response to her second question.

[11] The mother then took her two children into the tent to get dressed. While in the tent, she asked the child to show her how he had been touched. He responded by putting his finger out in front of him and making a stroking motion.

[12] The mother then went into to the campground office to call the police. The child was with her when she made this call. The mother’s behavior from the time she was alerted to the incident is consistent with accepting her husband’s belief that the son had been assaulted by the man in the toilet stall.

[13] In the meantime, the father pursued the accused out of the campground and down the highway. The father overtook Kenneth Prohaska on the highway and directed that he pull over to the shoulder. Once there he threatened to punch Kenneth Prohaska in the face and drive him off the road if he didn’t follow him to the police detachment. During the course of that day the police took statements from the father, the mother, the child and the accused. Mr. Prohaska also made utterances to the father a number of times before the accused was taken into police custody.

[14] In his statement to the police, the child said among other things, that the man touched his “pecker” and his bum.

[15] The prosecution argued that the evidence showed that the accused touched the child on the buttocks and on the penis for a sexual purpose and in circumstances of a sexual nature so as to violate his sexual integrity. The defence position is that Kenneth Prohaska touched the child on the buttocks when he entered the stall to help the child with his pyjamas, that the touch lasted no more than three seconds. The accused also testified that he did not say anything when he went into the stall. Mr. Prohaska specifically denied touching the child’s penis. He also denied touching the child for a sexual purpose.

[16] The Crown also relies on the statements of the accused and asks the court to consider the fact and the manner of Kenneth Prohaska’s exit from the campground as circumstantial evidence consistent with the accused having committed the offences alleged. Kenneth Prohaska testified that he got up that morning with a plan to go for breakfast at a nearby golf course. He had already packed up his few things in anticipation of news from the campground staff of a change in his camping site. When he arrived back at his campsite at the side of or followed by the child’s father, he went directly to his packed van and drove away. This was done according to the plan he had made earlier that morning. He knew that all of his personal contact information was registered with the campground. The evidence supports the inference that he was merely following through with his plan and doing his best not to engage with or further irritate the already irate father. I am satisfied that his explanation for leaving the campground does not provide any circumstantial evidence of criminal conduct.

[17] The Criminal Code of Canada makes it clear that the evidence of children need not be corroborated for a conviction. (s. 274). D’s best evidence came through his pre-trial statements to police and to his mother. These statements were both made on the day of the incident. One year later as a four year old, he testified that he had no memory of the event. Two years after the incident, as a five year old, he testified that he had a full recollection of the event and of the statements he made. However, and I believe both counsel accepted this view, the child’s evidence in February 2013 on the voir dire was on the whole, problematic. He accepted most propositions that were put to him. For a child of that age, a very long time had passed since the incident and there was some suggestion that his parents had spoken to him about his testimony just prior to the hearing.

[18] The age of the child is not in dispute and the fact that the accused intentionally touched the child’s naked buttock is not in dispute. Whether Mr. Prohaska touched the child’s penis was a point in dispute. Also in dispute is whether the touching was for a sexual purpose.

[19] This is a credibility case where the court is faced with possibly contradicting versions of what went on in the stall of the boys’ washroom. I say possibly contradictory because it is not easy to conclude the exact version from the child.

[20] D’s interview with the officer began a few hours after the incident. The beginning of the interview was a brief discussion between the officer and the child about telling the truth, how old he was, what colour certain objects were etc. As that discussion ended, the officer asked the child what he had been doing that day. The answer was, “He touched my pecker.” In the very short interview, D twice said that the man didn’t know he was not supposed to do that, once referring to touching and once referring to showing his “pecker”.

[21] The first time the boy used the word “pecker” was with the police and after a very limited introduction. One might ask why the child would use this word first with a complete stranger when he would not use it with his mother. I also note that the statement was not responsive to the question asked. The child’s statement that “The man didn’t know he wasn’t supposed to touch him” sounds like a repetition of reassuring words that parents might say to a child who is now at the centre of attention in an extremely charged situation. These words and sentences suggest there is a very significant risk that the child’s utterances were in some way influenced by what he had heard and seen in the hours between the washroom visit and his interview with police.

[22] The father’s reaction unfolded before he or anyone had spoken one word to the child. The father could not have known whether the child had called the adult into the stall to help him with a stuck zipper. There were a number of possible innocent explanations for the adult to be in the stall. The father’s reaction was so extreme that when the two men were met by an OPP officer at the detachment, the officer immediately put Kenneth Prohaska in a cell, for his security and for her own. The father’s reaction was based on the assumption, that something seriously improper and criminal had taken place and the father conveyed that belief to Kenneth Prohaska, his wife and his son.

[23] Every parent is entitled their fears. Some of their fears are reasonably based. How these fears and their reactions might influence a child’s answers is another matter.

[24] With respect to the charge of sexual interference, s. 151 of the Criminal Code of Canada, the onus remains with the Crown to prove beyond a reasonable doubt that the touching of the child was for a sexual purpose. The term sexual purpose is not defined. It would include touching done for one’s sexual gratification or to violate a person’s sexual integrity. (R. v. Morrisey, 2011 ABCA). The section requires specific intent to prove the sexual purpose.

[25] With respect to the charge of sexual assault, s. 271 of the Criminal Code of Canada, the onus is on the Crown to prove that the intentional touch occurred in circumstances of a sexual nature so that the sexual integrity of the child was violated. In R. v. Chase, 1987 23 (SCC), [1987] 2 SCR 293, McIntyre J. at para. 11, defined sexual assault as an assault committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test is an objective one, that of the reasonable observer. The court should consider all of the circumstances surrounding the conduct, inter alia; the part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act. The court should also have regard to “the intent or purpose” of the accused. If the motive is sexual gratification, to the extent that it may appear from the evidence, it may be a factor in determining whether the conduct is sexual. Sexual assault is an offence of general intent. Motive is one of many factors, the importance of which will vary depending on the circumstances. On the other hand, although the test for a finding of sexual purpose under s. 151 often considers the same factors, s. 151 is an offence of specific intent.

[26] This case calls for a classic analysis pursuant to R. v. W. (D.), 1991 93 (SCC), [1991] S.C.J. No. 26. I look first at the evidence of the accused.

[27] Kenneth Prohaska testified that he went into the toilet stall for the purpose of helping the child with his pyjamas and while doing that he touched the child on his buttocks. Kenneth Prohaska admitted that the child had not said anything to give an indication that he needed help. The door to the stall was closed and there were no visual clues that the child needed help. The child was a stranger to Mr. Prohaska. No one else had asked Mr. Prohaska to help the child.

[28] Kenneth Prohaska initially explained to the father in the minutes after the incident that he had gone into the toilet stall to assist the child with his pyjamas. However, later that day, during a long, rambling, distracted and emotional interview with the police, he did not mention this fact. During the August 7, 2011 interview, Kenneth Prohaska admitted to touching the child “on the butt” for “not even three seconds” after which he exitted the stall and saw and heard the father. He told the officer he had apologized to the father but he did not mention to the officer that he had gone into the stall to help the child with his pyjamas nor did he say that the touching had occurred accidentally while he was helping the child.

[29] Had Mr. Prohaska been prepared to lie, he could easily have asserted that he was responding in some way to what he believed was a request for assistance. His credibility must be considered in light of this admission of what may be considered very risky conduct.

[30] In his statements to the police, while Kenneth Prohaska admitted to touching the child’s buttock, Mr. Prohaska was adamant that he did not touch the child’s penis. I have watched this video and reviewed the transcripts of these interviews a number of times. I also saw and heard Mr. Prohaska testify on the voir dire and at trial. Although this denial of touching the child’s penis does contradict the child’s statement to the police, on the basis of all of the evidence, I am left in a reasonable doubt as to whether it occurred. My doubts arises from the timing of the child’s use of the word ‘pecker’, possibly after discussions with one or both parents and the risk that the words and conduct of the parents influenced the child’s responses to the mother and to the police. The conduct of both parents was consistent with a belief that a criminal offence of sexual touching or assault had taken place. There is no doubt the child would have received this message whether directly or indirectly through the words or actions of the parents.

[31] Mr. Prohaska was very open with the police once they started questioning him about his sexual history, his interests and his attractions. He was clear and direct. He did not hide what was obviously and distressingly embarrassing to him. He listed those sexual activities that he had never done. He did not simply deny that he touched the child’s penis; he denied that he had ever touched anyone’s penis. This was not a question asked of him. He proffered it in part as an explanation for his strong denial of the suggestion that he had touched the child’s penis. This denial was made without knowing what specific allegations the police were making or what the child had said.

[32] During the trial, there was an objection to the Crown’s attempt to put to Mr. Prohaska statements made during the interview of August 8,2011. The officer had asked Mr. Prohaska about his sexual interests. Mr. Prohaska acknowledged that he liked the bums of children, but not ‘their sexual organs’. In response to the question: “So, when you pat a child’s bum, that excites you?” Mr. Prohaska answered “um, I don’t know not really it’s just, I don't know what to say to ya.”

[33] In response to a question, Kenneth Prohaska responded that he thought bums were cute and he looked at them as he drove down the street. The Crown submitted that this evidence was lead for the purpose of proving motive only and not for propensity. Motive, as circumstantial evidence may be elicited for the purpose of showing the reason why a person does something. Motive may be circumstantial evidence on the issue of intention. The statements to the officer about whether the accused liked bums, is so vague and ambiguous, that it cannot be considered evidence of motive.

[34] The evidence of Mr. Prohaska also leaves me in reasonable doubt as to whether the sexual components of either of the charges have been proven. Looking first at the sexual interference charge, the onus is on the Crown to prove that the touching happened for a sexual purpose. The Crown submitted that touching for a sexual purpose is the only plausible explanation in the circumstances. I considered the evidence of Kenneth Prohaska from his two statements to the police where he said that he did not get aroused by nor was he excited by a child’s bum. Again, these statements were made clearly and forcefully by a person who was fully cooperative, open and responsive to the officer’s questions, sometimes afraid, crying and distracted. I do not assume that Mr. Prohaska knows the