ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-835
DATE: 20131023
BETWEEN:
HER MAJESTY THE QUEEN
Brian Linley, for the Crown
- and -
J.E.T.
Grant MacKinnon, for the Defendant
Defendant
HEARD: October 15, 16, 17, 18, 2013
REASONS FOR JUDGMENT
Conlan J.
INTRODUCTION
[1] J.T. stands charged with four criminal offences. Those charges are as follows:
Count 1 – that J.T., on or about May 19, 2012, at Hanover, did for a sexual purpose touch M.E., a person under 16 years, directly with a part of his body to wit his hand, contrary to section 151 (a) of the Criminal Code of Canada (“CCC”).
Count 2 – that J.T., between May 19, 2012 and June 8, 2012, at Hanover, did commit sexual assaults on M.E., contrary to section 271 CCC.
Count 3 – that J.T., on or about May 26, 2012, at Hanover, did for a sexual purpose touch M.E., a person under 16 years, directly with a part of his body to wit his hands, contrary to section 151 (a) CCC.
Count 4 – that J.T., on or about June 8, 2012, at Hanover, did for a sexual purpose touch M.E., a person under 16 years, directly with a part of his body to wit his hands, contrary to section 151 (a) CCC.
[2] This trial took place in Owen Sound on October 15, 16, 17 (very briefly) and 18 (final submissions only), 2013. The Court reserved its Judgment.
THE LAW
[3] For the Court to find J.T. guilty of sexual interference (counts 1, 3 and 4), I must find that the Crown has proven each of these essential elements beyond a reasonable doubt.
i. that M.E. was under sixteen years old at the time;
- that J.T. touched M.E.; and
- that the touching was for a sexual purpose.
[4] If Crown counsel has not satisfied the Court beyond a reasonable doubt of each ofthese essential elements, I must find J.T. notguilty of sexual interference. There is no dispute about the first element; M.E. was certainly under 16 years old at the time. She was born on […], 1997.
[5] If Crown counsel has satisfied the Court beyond a reasonable doubt of each of these essential elements, I must find J.T. guilty of sexual interference.
[6] There is no burden of proof on J.T.. He is presumed innocent of the charges.
[7] For the Court to find J.T. guilty of sexual assault (count 2), I must find that the Crown has proven each of these essential elements beyond a reasonable doubt.
- that J.T. intentionally applied force to M.E.; and
- that the force that J.T. intentionally applied took place in circumstances of a sexual nature.
[8] 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 of M.E.’s age at the material times.
[9] If Crown counsel has not satisfied the Court beyond a reasonable doubt of eachof these essential elements, I must find J.T. notguilty of sexual assault.
[10] If Crown counsel hassatisfied the Court beyond a reasonable doubt of eachof these essential elements, I must find J.T. guilty of sexual assault.
[11] There is no burden of proof on J.T.. He is presumed innocent of the charge.
THE EVIDENCE
[12] This was a relatively short trial which lasted less than 2.5 days including final submissions by counsel. There were just three witnesses total, all for the Crown. The Defence called no evidence.
[13] The evidence and submissions by counsel are fresh in my mind as these Reasons for Judgment are being delivered not long after the completion of the trial.
[14] In light of the above, no detailed recitation of the evidence is necessary beyond a summary of the salient points.
M.E., the Complainant
[15] M.E. described three alleged incidents of inappropriate sexual contact between her, 14 years old at the time, and J.T., the father of M.E.’s friend.
[16] The first alleged incident occurred in the early morning hours of Saturday, May 19, 2012, at the residence of the accused in Hanover. M.E. and another girl were sleeping over at the house with the daughter of J.T., following a dance the evening of the 18th.
[17] J.T., described by M.E. as being “pretty drunk”, asked M.E. to come in to the computer room. Although there were others inside the house at the time, nobody else was around the computer room. They were in bed. J.T. accessed some pornography on the internet. He went to his bedroom to change in to pajama pants and a t-shirt. He returned to the computer room and sat down beside M.E. on the couch. He kept trying to grab her left arm and pull it closer to his penis. No contact was made with his penis because M.E. kept pulling her arm away. J.T. then grabbed the back of M.E.’s neck. Although she tried to resist, he pulled her head towards his stomach/chest area. Contact was made. J.T. then put his hand underneath M.E.’s shirt and bra and played with her nipples. After trying unsuccessfully to untie her pants, he put his hand in her pants and played with M.E.’s vagina and rubbed her clitoris. At his request, she took off her pants. He pulled her to the edge of the couch and pulled his own pajama pants down. He put his erect penis inside M.E.’s vagina. They had vaginal intercourse. He kissed her. She was scared. He ejaculated inside her.
[18] M.E. did not tell anyone about what happened right away.
[19] Exhibit 1 is the pajama pants that M.E. was wearing. They were obviously surrendered to the police and eventually sent to the Centre of Forensic Sciences for analysis.
[20] The second alleged incident occurred about two weeks later, on a Saturday, in the basement of the house where J.T. resided.
[21] After swimming in the river near the T.s residence with the daughter of the accused and another friend, M.E. received a text message from J.T. to come over to his house. She did. They talked. She then left to go to her mother’s place for supper. M.E. then received another text message from J.T. asking her to meet him in the basement of his residence. After M.E. arrived, J.T. came downstairs and started the shower. There were others upstairs. J.T. took off his shirt but had jeans on. Both of them standing up, he hugged her and pulled her sundress up. He rubbed her vagina over top of her underwear. They moved towards a bench. At his request, M.E. sucked his penis. She then took off all of her clothes and sat on the bench. He put his erect penis inside M.E.’s vagina. They had vaginal intercourse. He did not ejaculate.
[22] M.E. did not tell anyone about what happened right away.
[23] The third alleged incident occurred about one week later, on a Friday evening. M.E., the daughter of the accused and another friend planned to drink alcohol at the T.s residence. J.T. had previously agreed to purchase the alcohol for the girls. Upon arriving at the T.s residence, only J.T. was there. He was sleeping, but she woke him up when someone knocked on the door. They did not answer the knock. M.E. gave $80.00 to the accused for the alcohol. They went to the computer room. He accessed some pornography on the internet. They were sitting on the couch. After rubbing her thigh, J.T. touched her vagina and rubbed her clitoris underneath her underwear. She was nervous and scared. He sat on the floor in front of her and moved her underwear to the side, while she sat on the edge of the couch. He licked her clitoris. He put two fingers inside her vagina. He then held her wrist briefly and got her to follow him to his bedroom. He sat on the bed. She was standing on the floor in front of him. He grabbed her waist and pulled her closer. He pulled her on top of him and kissed her on the lips. She took off her shirt and bra, while he took off his pants. He moved her underwear to the side. He put his erect penis inside M.E.’s vagina. They had vaginal intercourse. He ejaculated.
[24] Exhibit 2 is the underwear that M.E. was wearing. They were obviously surrendered to the police and eventually sent to the Centre of Forensic Sciences for analysis.
[25] M.E. eventually told her best friend what happened. M.E. also told another friend. Reports were made to M.E.’s mother, who confronted M.E. four days after the third alleged incident. The police became involved.
[26] In cross-examination, the following inconsistencies were revealed in the evidence of M.E.
[27] First, at the Preliminary Inquiry, M.E. testified that it was the doorbell (not a door knock) that frightened her when J.T. was sleeping at the start of the third alleged incident. When confronted with her testimony at the Inquiry, M.E. said that she was wrong about it being a doorbell. Frankly, I find this inconsistency to be minor and immaterial.
[28] Second, at the Preliminary Inquiry, regarding the third alleged incident, M.E. testified that she and J.T. were watching the porn video. At trial in direct examination, M.E. said that she just glanced at the screen. In cross-examination at trial, M.E. admitted that those two things are different. Frankly, I find this inconsistency to be minor and immaterial.
[29] Third, at the Preliminary Inquiry, regarding the third alleged incident, M.E. did not agree with the suggestion that J.T. had a hold of her at all as they walked from the computer room to his bedroom. Remember that, at trial in direct examination, M.E. testified that J.T. had held her wrist briefly and got her to follow him to his bedroom. Frankly, I find this inconsistency to be minor and immaterial. M.E. explained the minor difference by saying at trial in cross-examination that the holding of the wrist was very brief – a “couple of seconds”.
[30] Fourth, at the Preliminary Inquiry, M.E. did not mention anything about J.T. giving her oral sex as part of the third alleged incident. This inconsistency is more important than the others mentioned previously. I shall return to this matter later in these Reasons.
[31] Fifth, M.E. acknowledged in cross-examination at trial that, quite apart from whether J.T. told her or not that he had ejaculated during these alleged incidents, she knew from the physical indicators whether he did or not. The suggestion is that M.E. was misleading in her direct testimony at trial by suggesting that she knew whether he ejaculated or not solely on the basis of what he told her. I reject that suggestion. Clearly, she knew on both bases. The fact that she did not mention the physical indicators when testifying in-chief at trial does not adversely affect her credibility, in my view.
[32] Sixth, in cross-examination at trial, M.E. said that she told two friends and nobody else about what happened with J.T.. At the Preliminary Inquiry, however, M.E. testified that she told two friends, her sister and her cousin. When confronted at trial with that prior testimony, M.E. adopted as correct her evidence at the Inquiry. Frankly, I find this inconsistency to be of minimal assistance in helping me assess the credibility and reliability of M.E. She was adamant at trial that she was afraid to tell persons about what happened. The fact that she told four persons rather than two does not weaken her evidence that she was reluctant to tell anyone. I do not find that M.E. deliberately lied at trial when she said that she told two persons and nobody else. It is much more likely that she simply was mistaken.
Constable Darren Doucet of the Hanover Police Service
[33] There is very little that needs to be said about the evidence of Constable Doucet, the officer-in-charge of the investigation.
[34] On June 13, 2012, the Officer met with M.E. and her mother at the Hanover police station. The Officer interviewed M.E. in the presence of her mother. The interview did not record on audio or video because of some equipment malfunction.
[35] The next day, M.E.’s mother gave to the Officer Exhibit 2 (the underwear). The Officer removed the item from the plastic bag and put it in a paper bag. He then placed labels on the bag and sealed it for submission to the Centre of Forensic Sciences.
[36] Also on June 14, a second interview of M.E. was conducted. It was recorded on audio and video.
[37] On June 16, 2012, the Officer met again with M.E.’s mother. The Officer was given Exhibit 1 (the pajama bottoms) in a paper bag. He placed labels on the bag and sealed it for submission to the Centre of Forensic Sciences.
[38] On July 3, 2012, the Officer took a buccal sample from M.E.
[39] Exhibits 1 and 2 and the buccal sample were received by the Centre of Forensic Sciences by courier on July 6, 2012.
[40] The cross-examination of Constable Doucet focussed on two things.
[41] First, the Officer confirmed that M.E. first told him that the earliest incident happened five weeks before the date of the interview, which the Officer computed to be around May 11, 2012 (and not the 18th or 19th of May). Then she told the Officer that it occurred four weeks prior. Besides the fact that M.E. was never given the opportunity in her testimony at trial to address that alleged inconsistency, I see little relevance to it. Assuming that M.E. mixed up the date of the first alleged incident by one week, I conclude that the said confusion has very marginal if any impact on her ultimate credibility and reliability as a witness.
[42] Second, the defence attempted to show that this investigation was incomplete and/or negligent. For example, the Officer ought not to have interviewed M.E. initially in the presence of her mother. The Officer did not interview M.E.’s step-sister even though he knew that M.E.’s mother had received information from that girl. He never interviewed M.E.’s mother. The Constable never obtained a warrant to search the phone seized from the accused after his arrest to confirm whether there were photographs of M.E. on the phone, as M.E. had testified at trial that she sent nude or semi-nude pictures of herself to J.T.. And the Officer never bothered to get a warrant to obtain camera footage of the LCBO store where J.T. supposedly went to buy the alcohol for the girls regarding the third alleged incident.
[43] In closing submissions, Defence counsel characterized the police investigation as incomplete, inept and lazy.
[44] Although I agree with the defence that the investigation was not exhaustive, I find little utility in what came out of the Officer’s cross-examination. Ultimately, I must decide whether the Crown has proven the charges beyond a reasonable doubt. The fact that the police could have done more is largely irrelevant, absent some Charter Application.
[45] I deal more with the issue of corroboration below.
Mr. Brian Peck – Scientist from the Centre of Forensic Sciences.
[46] Without objection from the defence, Mr. Peck was accepted by the Court as an expert witness entitled to give opinion evidence in the fields of body fluid identification and forensic DNA analysis and interpretation. His statement of qualifications was marked Exhibit 3.
[47] Mr. Peck wrote three reports marked Exhibits 4 (October 10, 2012), 5 (November 28, 2012) and 6 (December 18, 2012).
[48] This is a summary of the most relevant conclusions from those reports.
[49] In Exhibit 4, it is stated that semen found on the crotch of M.E.’s pajama bottoms contained M.E.’s DNA and that of a male.
[50] In Exhibit 5, it is stated that the male whose DNA was in the semen on the crotch of M.E.’s pajamas is not J.T.. Further, it is stated that semen found on the crotch of M.E.’s underwear contained M.E.’s DNA and a minor amount of DNA from at least one other person, not suitable for comparison.
[51] In Exhibit 6, it is stated that J.T. and his parental male relatives cannot be excluded as the person whose DNA was in the semen found on the crotch of M.E.’s underwear. The semen may or may not have included sperm – Mr. Peck could not say. The December 18, 2012 report includes probability statistics as to who else may be the person whose DNA was in the semen found on the crotch of M.E.’s underwear. In plain language, as Mr. Peck testified at trial, about 99.96% of randomly selected Caucasians would be excluded as having that same DNA profile. More than 99% of blacks would be excluded, and more than 99% of Asians would be excluded. Finally, it is stated in Exhibit 6 that J.T. is excluded as the person whose DNA was in the semen found on the crotch of M.E.’s pajama bottoms.
[52] In cross-examination, Mr. Peck conceded that where the persons in the DNA database live is unknown. So, for example, if the probability statistic is that 1 out of every 5,000 Caucasians would have the same DNA profile as J.T., that 1 Caucasian could live in the same town as J.T..
[53] In cross-examination, Mr. Peck acknowledged that it is possible that the DNA results could be explained innocently (my expression). For example, it is possible that M.E. sat on some surface in J.T.’ residence with semen already on her underwear and picked up J.T.’s DNA on the underwear.
THE POSITIONS OF THE PARTIES AS REFLECTED IN CLOSING SUBMISSIONS BY COUNSEL
The Crown
[54] Very succinctly, the Crown submits that M.E. was a credible, reliable and believable witness whose testimony was, at least in part, corroborated by the DNA evidence.
[55] The Crown asked that I consider the evidence of M.E. in light of the decision of the Supreme Court of Canada in Regina v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122. That decision deals with the approach that a Court should take in assessing the evidence of child witnesses.
[56] I pause here to note the following legal principles which I have applied in reaching my conclusions.
[57] First, corroboration is not required to find J.T. guilty of one or more of these offences. The lack of corroboration, however, if so found, is a factor that I should consider in deciding whether the offences or any of them have or has been proven beyond a reasonable doubt.
[58] Second, the evidence of a child witness is not to be considered inherently unreliable and automatically treated with special caution.
[59] Third, a child’s evidence may be treated with caution where such caution is merited in the circumstances of the case. This is no different than with adult witnesses.
[60] Fourth, in some cases it would be inappropriate to assess the credibility of a child’s evidence in the same manner as one would for an adult. Although the evidence of a child witness is subject to the same standard of proof as that of an adult, the trier of fact ought to use some basic common sense when assessing the credibility of a child witness, taking in to account, for example, that a child’s memory and use of language are likely different than those of an adult.
The Defence
[61] The Defence submits that this case is about credibility, and that M.E. is not credible. Neither is she reliable. There are material inconsistencies in her evidence. She did not testify in a straight-forward way. Her demeanour was unusually flat and not indicative of having been victimized in the manner that she described. She had a motive to lie. And she in fact did lie as the DNA evidence proves that she had sexual intercourse with someone other than J.T. regarding the first alleged incident.
[62] The Defence argues that there is insufficient corroborative evidence to support the allegations of M.E. The police investigation was incomplete, inept and lazy.
[63] The Defence submits that the DNA evidence is not “proof” that J.T. committed any of the offences that he is charged with. Besides, there is an innocent explanation for why J.T.’s’ DNA could have ended up on M.E.’s underwear.
[64] According to the Defence, it would be dangerous to find J.T. guilty of any of the charges.
ANALYSIS
[65] In my view, contrary to the submission by the Defence, M.E. was a credible and reliable witness. She testified in a straight-forward, matter-of-fact way. She was not prone to exaggeration or hyperbole. She was responsive to the questions asked and readily admitted inconsistencies where appropriate. She appeared honest. She demonstrated a good memory of the events and attention to detail. She did not appear mean-spirited or vindictive. Her evidence made common sense.
[66] Put bluntly, even assessed as if she was an adult, M.E. was a good witness.
[67] I disagree with the submission by the Defence that M.E.’s demeanour while testifying was unusually flat and not indicative of having been victimized in the manner that she described. That submission comes very close to asking this Court to engage in impermissible stereotyping of what a sexual assault victim should act and sound like when in the witness box. I refuse to do so.
[68] I reject the suggestion in cross-examination of the complainant that M.E. has fabricated these allegations against J.T. to get out of trouble. There is no reliable evidence that she was in trouble when her mother confronted her about the allegations. Her mother was simply disappointed, perhaps even angry, that her daughter had not told her directly. I disagree with the Defence that M.E. had a motive to lie.
[69] As can be seen from my summary of the evidence above, there was only one material inconsistency that arose during M.E.’s evidence which gave me some concern. That has to do with her evidence at trial that J.T. gave her oral sex during the third alleged incident, which allegation was not mentioned at all by M.E. when she testified at the Preliminary Inquiry.
[70] In a multi-count Indictment, as here, there are some inconsistencies in a witnesses’ evidence at trial that are material and cause the trier of fact to have a reasonable doubt on one charge while not on the others. There are other material inconsistencies that are so significant that, although they relate to just one charge, they adversely affect the overall credibility and reliability of the witness to an extent that the trier of fact has a reasonable doubt on every charge. And there are inconsistencies that relate to one charge but do not raise a reasonable doubt on that or any charge given the totality of the evidence at trial.
[71] This case falls in to the latter category.
[72] The totality of the circumstances regarding the third alleged incident includes two important things. First, neither count 2 nor count 4 alleges sexual touching by J.T. to M.E. with his mouth or tongue or face or head. So a finding of oral sex performed by the accused on the complainant is not necessary. Second, the evidence of Mr. Peck, which I accept, makes the case against J.T. on counts 2 and 4 overwhelming.
[73] Mr. Peck was an excellent witness. His expertise was readily apparent. I find as a fact that J.T.’s’ DNA was in the semen stain on the crotch of M.E.’s underwear, and I further find that the chances of anyone else having that same DNA profile are remote. The evidence of Mr. Peck, combined with the evidence of M.E., provide overwhelming proof, beyond a reasonable doubt, that J.T. touched M.E. for a sexual purpose, including with his hand (count 4) and applied force to M.E. in circumstances of a sexual nature (count 2). Although corroboration is not required, the DNA evidence does independently corroborate the testimony of M.E. with regard to counts 2 and 4.
[74] I reject the submission by the Defence that the DNA evidence is not “proof”. I agree that it is not proof to an absolute certainty, however, that is not the standard to be applied.
[75] I believe M.E.’s evidence that J.T., in the early morning hours of May 19, 2012, touched M.E. for a sexual purpose (count 1) by playing with her nipples with his hand, rubbing her clitoris with his hand and having vaginal intercourse with her. In doing so, J.T. sexually assaulted M.E. (count 2). He intentionally applied force to the girl in circumstances of a sexual nature.
[76] I believe M.E.’s evidence that J.T., later in May 2012, touched M.E. for a sexual purpose (count 3) by rubbing her vagina with his hand over top of her underwear and having vaginal intercourse with her.
[77] I believe M.E.’s evidence that J.T., in early June 2012, touched M.E. for a sexual purpose (count 4) by rubbing her clitoris with his hand underneath her underwear, putting two fingers inside her vagina and having vaginal intercourse with her. In doing so, J.T. sexually assaulted M.E. (count 2). He intentionally applied force to the girl in circumstances of a sexual nature. I accept the evidence of Mr. Peck regarding the DNA found in the semen stain on the crotch of the underwear worn by M.E. at the time of the third incident.
[78] I, of course, may accept some, all or none of a witnesses’ evidence. Given the fact that M.E. did not mention at the Preliminary Inquiry that J.T. performed oral sex on her during the third incident, although I do not conclude that M.E. lied about that in her testimony at trial, out of caution I make no finding of fact that J.T. did so. I say that in the event it becomes relevant at the time of sentencing.
[79] The evidence of Mr. Peck that it is possible for M.E. to have picked up that DNA on her underwear innocently does not leave me with a reasonable doubt. That is a speculative possibility. I expect that it is also possible that J.T. sneezed on M.E.’s semen-stained underwear, or that M.E. rubbed a hair brush used by J.T. on her semen-stained underwear, as further speculative possibilities, but this is not an exercise in making up theories. I am convinced that the explanation for how the DNA got in that semen stain on the crotch of M.E.’s underwear is what M.E. described regarding the third incident, without regard to the oral sex allegation.
[80] The fact that J.T. is excluded as the person whose DNA was in the semen stain on the crotch of M.E.’s pajama bottoms does not leave me with a reasonable doubt on any of the charges, including counts 1 and 2. It does not adversely affect my credibility assessment of M.E. I believe that the first incident happened as described by M.E. I do not know why J.T.’s’ DNA was not found on her pajama pants. I do know that the absence of that finding does not leave me with a reasonable doubt. I disagree with the Defence that the DNA evidence proves that M.E. had sexual intercourse with someone other than J.T. regarding the first alleged incident. I have no idea when or the circumstances in which that unknown male DNA was deposited on M.E.’s pajama bottoms.
[81] And I disagree that the Defence was precluded from attempting to adduce any further evidence of from whom, when or how that unknown DNA was deposited on M.E.’s pajama pants. No application was brought under section 276 of the Criminal Code.
[82] J.T. started this trial with a clean slate. He had no burden to testify. He had no burden to call any evidence. He was presumed innocent of each and every charge against him.
[83] That is no longer. The Crown has discharged its burden of proving, beyond a reasonable doubt, each essential element of each offence against J.T.. I do not agree with the Defence that findings of guilt against J.T. are in any way unsafe or dangerous.
CONCLUSION
[84] I find J.T. guilty of counts 1, 2, 3 and 4 on the Indictment.
[85] I will entertain submissions by counsel at the time of sentencing as to the applicability of the Kienapple principle in these circumstances.
Conlan J.
Released: October 23, 2013
COURT FILE NO.: CR-13-835
DATE: 20131023
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
J.E.T.
Defendant
REASONS FOR JUDGMENT
Conlan J.
Released: October 23rd, 2013