ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: CR-13-125-00
Date: 20131206
BETWEEN:
HER MAJESTY THE QUEEN
Mr. A. Shatto, for the Crown
- and -
D.B.
Ms J. Gamble, for the Defendant
Defendant
Heard: December 5, 2013
REASONS FOR JUDGMENT
Conlan J.
INTRODUCTION
[1] D.B. stands charged with four criminal offences. Those charges are as follows.
Count 1 – that D.B., between May 1, 2010 and December 31, 2010, at Owen Sound, did commit a sexual assault on A.T., contrary to section 271 of the Criminal Code of Canada (“CCC”).
Count 2 – that D.B., between the same dates and at the same place, did for a sexual purpose touch A.T., a person under 16 years, directly with a part of his body to wit his hand, contrary to section 151 of the CCC.
Count 3 – that D.B., between the same dates and at the same place, did commit a sexual assault on A.T., contrary to section 271 CCC.
Count 4 – that D.B., between the same dates and at the same place, did for a sexual purpose touch A.T., a person under 16 years, directly with a part of his body to wit his hand, contrary to section 151 CCC.
[2] This trial took place in Owen Sound on December 5, 2013. The Court reserved its Judgment.
THE LAW
[3] For the Court to find D.B. guilty of sexual assault (counts 1 and 3), I must find that the Crown has proven each of these essential elements beyond a reasonable doubt.
i. that D.B. intentionally applied force to A.T.; and
ii. that the force that D.B. 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 of A.T.’s age at the material times.
[5] If Crown counsel has not satisfied the Court beyond a reasonable doubt of each of these essential elements, I must find D.B. not guilty of sexual assault.
[6] If Crown counsel has satisfied the Court beyond a reasonable doubt of each of these essential elements, I must find D.B. guilty of sexual assault.
[7] There is no burden of proof on D.B.. He is presumed innocent of the charges.
[8] For the Court to find D.B. guilty of sexual interference (counts 2 and 4), I must find that the Crown has proven each of these essential elements beyond a reasonable doubt.
i. that A.T. was under sixteen years old at the time;
ii. that D.B. touched A.T.; and
iii. that the touching was for a sexual purpose.
[9] If Crown counsel has not satisfied the Court beyond a reasonable doubt of each of these essential elements, I must find D.B. not guilty of sexual interference.
[10] There is no dispute about the first element; A.T. was certainly under 16 years old at the time. She was born on […] 1997.
[11] If Crown counsel has satisfied the Court beyond a reasonable doubt of each of these essential elements, I must find D.B. guilty of sexual interference.
[12] There is no burden of proof on D.B.. He is presumed innocent of the charges.
THE EVIDENCE
[13] This was a very short trial which lasted less than one full day including final submissions by counsel. There were just two witnesses total, both for the Crown. The Defence called no evidence.
[14] The evidence and submissions by counsel are fresh in my mind as these Reasons for Judgment are being delivered the day after the trial concluded.
[15] In light of the above, no detailed recitation of the evidence is necessary beyond a summary of the most salient points.
A.T., the Complainant
[16] Now 16 years old but just 13 at the material times, A.T. described two incidents involving alleged sexual contact between her and her step-father, the accused.
[17] First, around Christmas of 2010, while nobody else was at home except the complainant and D.B., the two of them were sitting beside each other on the couch in the living room. A.T. was reading the Sears catalogue. After putting her on top of him, D.B. put his hand up her shirt and touched both of her breasts for about five minutes. He then put his hand down her pajama bottoms and inside her underwear and touched the top, outside of her vagina. The incident ended after A.T. told him to stop twice and then stood up.
[18] Second, a couple of days later, the complainant, her mother and D.B. were all in the living room at home. The mother was sitting on the couch. D.B. was sitting in a chair close to the couch. As A.T. went to join her mother on the sofa, the accused grabbed her and pulled her over to him and tickled her. While she was on his lap, he then pushed or pressed his finger over top of her jeans around her anus. The mother was looking at them at the time.
[19] After telling two friends and an old neighbour, A.T. eventually disclosed the alleged incidents to the children’s aid society and then to the Owen Sound Police in April 2012.
Detective Constable Dazé of the Owen Sound Police Services
[20] There was no cross-examination of the officer-in-charge of the investigation. Detective Dazé simply introduced the audio-video statement given by D.B. to the officer on 24 April 2012. That statement was played in court and marked Exhibit 1 at trial. The interview was approximately two hours long.
[21] In summary, the statement provided by D.B. is one of the most bizarre police statements that I have ever seen from an accused person.
[22] D.B. appeared very nonchalant, flat and almost “spaced-out” during the interview. Although at one point he denied unequivocally that the alleged sexual touching took place, at other times he simply referred to the passage of time (only two years or less) and said that he could not recall whether the alleged conduct happened or not.
[23] In any event, although the interview of D.B. makes me rather suspicious, I am cognizant that his police statement can in no way be characterized as an admission of criminal wrongdoing or a full or partial confession. I should be hesitant to conclude that his behaviour during the interview, conducted professionally and in a thorough manner by the officer, is evidence of his guilt because it is inconsistent with what would normally be expected of an innocent person. That kind of speculation is dangerous and could result in a wrongful conviction that is based more on suspicion than actual evidence.
THE POSITIONS OF THE PARTIES AS REFLECTED IN CLOSING SUBMISSIONS BY COUNSEL
The Crown
[24] In his usual candid and professional way, Mr. Shatto for the Crown conceded that counts 3 and 4 are weak, and thus, the Crown did not request findings of guilt on those two charges. Accordingly, I dismiss those two charges.
[25] Mr. Shatto argued that the complainant was a reliable and credible witness, notwithstanding some inconsistencies on what are generally peripheral matters.
[26] The Crown filed some jurisprudence which deals mainly with how a Court should assess the evidence of a child witness. I have reviewed those decisions in their entirety, and I have summarized some of the more important principles below under the “Analysis” section of these Reasons for Judgment.
The Defence
[27] Very succinctly, Ms Gamble for the Defence argued that the complainant was neither a credible nor a reliable witness, and further, she had a motive to fabricate the allegations in that she was in trouble with her mother for some inappropriate sexual chatter with a boy shortly before A.T. disclosed the first alleged incident to her mother.
[28] Regarding the latter submission, I make no finding that the complainant had a motive to fabricate these allegations. The case can readily be decided on other grounds.
ANALYSIS
[29] Child witnesses, generally speaking, should not be held to an exacting standard on, for example, the timing of an alleged offence. That would be unrealistic and unnecessary. Regina v. M.B.P., 1994 125 (SCC), [1994] S.C.J. No. 27, at paragraph 16.
[30] The judiciary should take a common sense approach in assessing the testimony of children. Some contradictions in the evidence of a child should not be given the same treatment as similar flaws in the testimony of an adult. Regina v. B.(G.), 1990 7308 (SCC), [1990] S.C.J. No. 58, at paragraph 48.
[31] No longer is there any special rule about automatically treating the evidence of children with special caution or as inherently unreliable or as requiring corroboration. Regina v. W.(R.), 1992 56 (SCC), [1992] S.C.J. No. 56, at paragraph 23.
[32] The presence of inconsistencies in the evidence of a child witness, especially as to peripheral matters, should be assessed in the context of the age of the witness at the time of the alleged events. Regina v. W.(R.), 1992 56 (SCC), [1992] S.C.J. No. 56, at paragraph 26.
[33] Further, it should be remembered that the date of the offence is not generally an essential element of sexual assault and, thus, need not be proven by the Crown beyond a reasonable doubt. Regina v. B.(G.), 1990 7308 (SCC), [1990] S.C.J. No. 58, at paragraphs 45 and 46.
[34] I have assessed the evidence of A.T. in the context of the principles enunciated above.
[35] A.T. was a polite and relatively straightforward witness. She strikes me as a young lady who has had some misfortune in her life. I have a feeling that there are brighter days ahead for A.T. I hope so.
[36] There were, however, some significant difficulties with the evidence of A.T. The following are some examples. This list is not exhaustive.
[37] First, in cross-examination, A.T. stated that she was 100 per cent positive that it was her old neighbour who had suggested that she speak with the Children’s Aid Society about the allegations. That is inconsistent with her evidence at the preliminary inquiry; she testified then that it was her mother who told her to speak to the Children’s Aid Society.
[38] Second, in direct examination, A.T. stated that the first alleged incident of sexual touching by the accused occurred around Christmas of 2010. Yet, in cross-examination, she acknowledged that she has no idea whether the first incident happened in the winter or the summer or whether it happened around Mother’s Day, or about the time of her mother’s birthday in July, or around Christmas time.
[39] Third, in direct examination, A.T. testified that, during the first alleged incident, she was wearing an orange t-shirt with “Little Miss Sunshine” on it. Yet, at the preliminary inquiry, A.T. testified that she could not remember anything about the colour or what was on that t-shirt. In cross-examination at trial, A.T. explained that by saying that she remembers the details of the t-shirt now because she has a “photographic memory”. She testified that she did not have that “photographic memory” when she testified at the preliminary inquiry. I find that perplexing. And it makes no common sense because there are plenty of other related matters which the witness could not remember at trial, such as any details at all about the pajama bottoms that she was wearing during the first alleged incident.
[40] Fourth, in cross-examination at trial, A.T. testified that she remembered just a few days before the trial, at some point during the alleged first incident, she had her feet on the floor. That is inconsistent with how she described that first alleged incident during her direct examination at trial. And it is inconsistent with her testimony at the preliminary inquiry.
[41] Fifth, A.T. acknowledged in cross-examination at trial that she was specifically asked by the officer whether anything else happened between her and D.B., besides the first alleged incident. She replied in the negative. She did not disclose the second alleged incident to the police until the morning of the scheduled preliminary inquiry. A.T. explained that by saying that she did not think that the second alleged occurrence mattered. But then she could not explain in cross-examination at trial why she thought the first alleged incident mattered either. According to A.T., the reason why she disclosed the second alleged occurrence at all was because her mother told her that it could help out her case. I find that concerning. It makes me wonder how else the evidence of A.T. may have been similarly influenced.
[42] Sixth and finally, I find that the second alleged occurrence is unrealistic to have happened in the way described by the complainant. For D.B. to have sexually touched A.T. within a few feet of her mother and while her mother was looking at A.T. and the accused seems more than just brazen; it seems incredible.
[43] I do not provide this analysis of the evidence of A.T. to be mean or even critical of her. But I am required to explain why her evidence gives me cause to be concerned about her credibility and reliability, even accounting for her young age and the principles to be applied to the evidence of child witnesses.
[44] The evidence of A.T. does not persuade me of D.B.’s guilt beyond a reasonable doubt. On her evidence, I am not satisfied beyond a reasonable doubt that D.B. sexually touched or assaulted A.T.
[45] That leaves the question of whether, on the whole of the evidence at trial including the statement of D.B. to the officer, the Crown has proven counts 1 and 2 beyond a reasonable doubt. In my view, the answer is no. Although I find D.B.’s behaviour and comments during his interview with the officer to be odd to say the least and suspicious to say the most, that is not enough, even in combination with the evidence of A.T., to amount to proof beyond a reasonable doubt.
CONCLUSION
[46] I am not sure that D.B. committed these offences. That is the way in which we explain to juries the meaning of proof beyond a reasonable doubt.
[47] As such, I find D.B. not guilty of counts 1, 2, 3 and 4 on the Indictment.
Conlan J.
Released: December 6, 2013
COURT FILE NO.: CR-13-125-00
DATE: 20131206
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
D.B.
Defendant
REASONS FOR JUDGMENT
Conlan J.
Released: December 6, 2013