ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
Elijah Kavanaugh
Respondent
Jeremy Schaffer, for the Appellant
Brad Allison, for the Respondent
HEARD in Gore Bay: August 11, 2014
REASONS FOR JUDGMENT
1The Crown appeals the verdict of acquittal made by Fitzgerald J. of the Ontario Court of Justice at Wikwemikong, Ontario, on May 8, 2013.
2The Crown advances two grounds of appeal: (1) the insufficiency of the trial judge’s reasons, and (2) the trial judge’s conclusion that the touching was not done for a sexual purpose.
3Since I intend to allow the appeal and order a new trial on the insufficiency of the reasons, I will not address in detail the alleged error in law of whether the evidence proved the specific intent of touching for a sexual purpose beyond a reasonable doubt.
4The facts leading up to these charges are that on May 19, 2012, the two complainants, S.R., 11 years of age, and O.M., 10 years of age, were babysitting the respondent’s children while he and his wife went to a wedding party.
5At some point, S.R. and O.M. fell asleep together on a mattress on the floor in the upstairs living room. The respondent and his wife returned home. His wife went to sleep on the couch on the main floor and he decided to go to sleep in the upstairs bedroom. On the way, he entered the room where the two complainants were and laid down between the two of them. He began to touch S.R.’s buttocks with his hand while she slept. She was awakened with the touching which lasted about five seconds. S.R. got up and went downstairs where she tried to wake the respondent’s wife but to no avail.
6The respondent then turned his attentions to O.M. who was sleeping and began to undo her pants. She awoke and asked “what are you doing?” The respondent replied “I’m trying to push you over”. O.M. became frightened and went to lay downstairs with S.R. Shortly thereafter, the respondent followed O.M. downstairs and laid down between the two complainants asking one of them to return upstairs. A further discussion took place and the incident ended when the respondent’s wife woke up. The following morning, the complainants told their mother about the respondent’s conduct and subsequently the respondent was arrested.
7In his reasons, the learned trial judge rejected the respondent’s evidence stating that it was “unreliable, incredible and an after the fact concoction”. Fitzgerald J. states at p. 1, lines 15-23 of his reasons:
…there is absolutely no way that I could use his evidence to make any particular finding of fact and I dismiss it all in its complete entirety. Giving the best consideration to it would be an after the fact fabrication and I hope I haven’t been confusing in what I said and that the message is clear.
8He then goes on to state starting at line 25:
On the other hand, the evidence of these two young people, one age 11 at the material time and one age 10 at the material time and they came forward today, a year later, with all of things that have gone on in their lives in a year, but they came forward today and articulate a clear, accurate, intelligible, reliable, credible account of what happened. I haven’t the slightest doubt in my mind of what took place that night is as recalled, articulated and testified to on the video and in court today by both [S.R.] and [O.M.] in their evidence…
9The learned justice then goes on to consider the elements of sexual touching under s. 151 and states at p. 3, line 4:
That the offence is contingent upon the touching being done by a person who does it for a sexual purpose and it’s common to all of the allegations here, but we’re dealing particularly with the section 151. Everyone who for a sexual purpose touches is guilty of the offence, so now the question I have to ask myself is there sufficient evidence for me to find as a fact that what the young ladies say happened was done for a sexual purpose. I’m certainly not going to be helped by the defence…
10Commencing at line 20, he adds:
… I’m dealing solely with the evidence of [O.M.] and [S.R.] to determine whether there is sufficient evidence beyond a reasonable doubt for a finding that the touching was for a sexual purpose. Certainly subjectively both of these women felt violated and they had no issue, no concern with being firmly of the view that subjectively the touching violated their personal space as phrased by [S.R.]. I’m attempting to look at it objectively and reasonably. I’m trying not to draw an adverse interest which I am not entitled to do, having heard the evidence of the accused, which I dismiss as being totally unreliable and incredible, I am not of the view that I can draw an adverse inference from that to bolster the case for the Crown in proof beyond a reasonable doubt for sexual purpose.
11Fitzgerald J. adds at p. 4, line 10:
I find that the evidence as distasteful as it is falls short of proof beyond a reasonable doubt on that essential element of touching for a sexual purpose and for that reason there are findings of not guilty entered.
12The Crown submits that, as enunciated in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 and subsequently reiterated in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, the learned justice failed to address in his reasons why having disregarded the respondent’s testimony in its entirety, he gives no explanation for his conclusion that the touching was not for a sexual purpose even though he completely accepts the evidence of the two complainants.
13The Crown submits that the learned justice can come to such a conclusion provided some degree of analysis is on the record so as to permit the parties to know why he came to that conclusion and provide an appellate court the opportunity to review the analysis.
14In this case, there is no analysis on those two essential requirements enunciated in R.E.M. and Sheppard.
15The respondent submits that the learned justice made no error in that he appreciated the essential elements of the offence in that one of the elements is a specific intent. The Crown needs to prove beyond a reasonable doubt a specific intent of touching with “a sexual purpose” and it has failed to do so. Accordingly, the trial judge was entitled to dismiss the charges.
16The respondent further submits that the Crown chose to proceed pursuant to s. 153(a) of the Criminal Code which requires the Crown to prove contact “for a sexual purpose”. Accordingly, evidence should have been lead about the respondent’s intent. The Crown failed to do so and that is why the learned justice dismissed the charges.
17Lastly, the respondent submits that the Crown ought to have considered proceeding under s. 271 of the Criminal Code, namely sexual assault, at which point a specific intent of touching with “a sexual purpose” would not have been required. Accordingly, it was well within the purview of the learned justice to dismiss those charges.
Discussion
18As previously stated, I intend to allow the appeal on the basis of insufficiency of the reasons.
19I agree with Crown counsel’s submissions that the requirements as enunciated in R.E.M. and Sheppard have not been met.
20Considering the evidence and the reasons in their totality, it was incumbent on the learned justice to detail why the Crown had failed to prove the specific intent of “touching for a sexual purpose”. He disregarded in its entirety the evidence of the respondent and accepted in their entirety the evidence of the complainants. Part of the evidence of the complainants was that both of them felt “subjectively violated” and that the “touching violated their personal space as phrased by S.R.”.
21There is nothing in his reasons as to why these subjective conclusions by the complainants would not have constituted “touching for a sexual purpose”.
22It appears from the reasons that the trial judge may have concluded that the respondent may have been too intoxicated to form the specific intent of the offence. Again that could be a conclusion that he is entitled to make provided some explanation is given. For him to come to the conclusion that the respondent was too intoxicated, the trial judge would have had to disregard the evidence of Crystal Pitawanakwat. She described the respondent as not being visibly intoxicated and he looked sober. Again, the learned justice made no mention of her testimony in his reasons.
23In my view, these failures require a new trial.
24The appeal is allowed.
25If a new trial is ordered, the parties have asked me that I direct this matter to the Ontario Court of Justice’s intake court. Further, counsel for the respondent may attend as a designated agent to set a date.
26Order to issue as per reasons.
The Honourable Mr. Justice R.G.S. Del Frate
Released: September 19, 2014
COURT FILE NO.: CR12-0014
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Elijah Kavanaugh
Accused
REASONS FOR JUDGMENT
Del Frate J.
Released: September 19, 2014