Her Majesty the Queen v. D.D., 2014 ONSC 5577

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR 12-829

DATE: 20140925

BETWEEN:

HER MAJESTY THE QUEEN

Mr. B. Linley, for the Crown

• and -

D.D.

Mr. H. Thompson, for the Defendant.

Defendant

HEARD: September 22, 23, 24, 25, 2014

REASONS FOR JUDGMENT

Conlan J.

1Mr. D.D. is charged with two counts of sexual interference. The formal charges read:

COUNT 1 – That between the 1^st day of September, 2004 and the 30^th day of March, 2011 at the Town of Hanover in the said region, Mr. D. did for a sexual purpose touch K.T., a person under the age of sixteen directly with a part of his body, to wit his hands, contrary to section 151 (a) of the Criminal Code of Canada.

COUNT 4 – That between the 1^st day of January, 2011 and the 26^th day of May, 2011 at the Town of Hanover in the said region, Mr. D. did for a sexual purpose touch I.T., a person under the age of sixteen directly with a part of his body, to wit his hands, contrary to section 151 (a) of the Criminal Code of Canada.

2The real issue in this case is whether the events alleged to form the basis of the crimes charged ever took place.

3It is for Crown counsel to prove beyond a reasonable doubt that the events alleged in fact occurred and that D.D. was the person involved in them. It is not for the accused to prove that these events never happened. The burden of proof rests entirely with the Crown. There is no burden of proof on D.D. If I have a reasonable doubt whether the events alleged ever took place, I must find D.D. not guilty.

4For me to find D.D. guilty of sexual interference, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. that K.T./I.T. was under sixteen years old at the time;

ii. that D.D. touched K.T./I.T.; and

iii. that the touching was for a sexual purpose.

5If I am notsatisfied beyond a reasonable doubt of allof these essential elements, I must find D.D. notguilty of sexual interference.

6If I am satisfied beyond a reasonable doubt of allof these essential elements, I must find D.D. guiltyof sexual interference.

7D.D. is charged with two counts of sexual assault. The formal charges read:

COUNT 2 – That between the 1^st day of September, 2004 and the 30^th day of March, 2011 at the Town of Hanover in the said region, D.D. did commit a sexual assault on K.T., contrary to section 271 of the Criminal Code of Canada.

COUNT 5 – That between the 1^st day of January, 2011 and the 26^th day of May, 2011 at the Town of Hanover in the said region, D.D. did commit a sexual assault on I.T., contrary to section 271 of the Criminal Code of Canada.

8The real issue in this case is whether the events alleged to form the basis of the crimes charged ever took place.

9It is for Crown counsel to prove beyond a reasonable doubt that the events alleged in fact occurred and that D.D. was the person involved in them. It is not for the accused to prove that these events never happened. The burden of proof rests entirely with the Crown. There is no burden of proof on D.D. If I have a reasonable doubt whether the events alleged ever took place, I must find D.D. not guilty.

10For me to find D.D. guilty of sexual assault, the prosecution must prove eachof these essential elements beyond a reasonable doubt:

i. that D.D. intentionally applied force to K.T./I.T.; and

ii. that the force that D.D. intentionally applied took place in circumstances of a sexual nature.

11Consent and honest but mistaken belief in consent are not relevant in this case, given the ages of the alleged victims.

12If the Crown has not satisfied me beyond a reasonable doubt of all of these essential elements, I must find D.D. not guilty of sexual assault.

13If the Crown has satisfied me beyond a reasonable doubt of all of these essential elements, I must find D.D. guilty of sexual assault.

14D.D. is charged with invitation to sexual touching. The formal charge reads:

COUNT 3 – That between the 1^st day of September, 2004 and the 30^th day of March, 2011 at the Town of Hanover in the said region, D.D. did for a sexual purpose invite K.T., a person under the age of sixteen years to touch directly with a part of her body to wit: her mouth, the body of D.D. to wit: his penis, contrary to section 152 of the Criminal Code of Canada.

15The real issue in this case is whether the events alleged to form the basis of the crime charged ever took place.

16It is for Crown counsel to prove beyond a reasonable doubt that the events alleged in fact occurred and that D.D. was the person involved in them. It is not for the accused to prove that these events never happened. The burden of proof rests entirely with the Crown. There is no burden of proof on D.D. If I have a reasonable doubt whether the events alleged ever took place, I must find D.D. not guilty.

17For me to find D.D. guilty of invitation to sexual touching, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. that K.T. was under sixteen years old at the time;

ii. that D.D. invited K.T. to touch D.D.’s body; and

iii. that the touching that D.D. invited was for a sexual purpose.

18If I am not satisfied beyond a reasonable doubt of all of these essential elements, I must find D.D. not guilty of invitation to sexual touching.

19If I am satisfied beyond a reasonable doubt of all of these essential elements, I must find D.D. guilty of invitation to sexual touching.

20This trial took place, without a jury, in Walkerton on September 22, 23, and 24, 2014.

A Summary of the Evidence at Trial

A.T. for the Crown

21A.T. is the mother of the two alleged victims.

22A.T. and D.D. were in a relationship and lived together for several years.

23A.T. never witnessed any alleged sexual impropriety between the accused and either complainant, however, K.T. disclosed to A.T. the alleged sexual abuse perpetrated by D.D. against her. K.T. also, at the same time, told A.T. about concerns that the accused had been sexually inappropriate with I.T. That discussion between A.T. and her daughter occurred in May 2011. A.T. and the two children left and went to the police station right away. They never returned.

K.T., complainant, for the Crown

24Now 18 years old (born in […] 1995), this young lady described a myriad of sexual abuse allegedly committed against her by D.D., the former partner of K.T.’s mother.

25According to K.T., the abuse started when she was about 8 years old. The accused would frequently babysit K.T. and her brother, I.T., when their mother was at work.

26The abuse allegedly continued when the children and A.T. moved in to the residence occupied by D.D. and numerous other persons. K.T. was 9 or 10 years old when they moved in with the accused.

27K.T. alleges that the abuse began with D.D. rubbing her vagina with his hand, over top of her clothing. He would invite her in to the bed with him.

28According to K.T., the sexual touching escalated to D.D. rubbing her vagina with his hand, under her clothing. He would also insert his finger in to her vagina. Once she developed breasts, D.D. would grab her breasts. He would also force her to give him oral sex, her mouth to his penis. On one occasion while K.T. was recovering from dental surgery, the accused kissed her on her mouth. Frequently, the accused forced her to stroke his penis with her hand. The penultimate violation was vaginal sexual intercourse.

29K.T. alleges that all of these acts of sexual impropriety happened more than once. They occurred regularly and even daily. They took place primarily in D.D.’s bedroom, in the basement of the residence. There were incidents of sexual touching (but not oral sex or intercourse) that happened in the bed that D.D. shared with K.T.’s mother, while the mother was in the bed.

30K.T. testified that sexual intercourse also happened in K.T.’s bedroom, in the basement. In addition, there were incidents of sexual touching that occurred in K.T.’s bedroom and in D.D.’s bedroom, when they were living upstairs in the house. Sexual intercourse and oral sex also took place in a trailer located at a campground between Walkerton and Hanover, Ontario. One incident of sexual intercourse occurred at D.D.’s sister’s fish farm, near Newmarket, Ontario. Finally, before K.T. and her mother and brother moved in with the accused, D.D. once rubbed his penis on her buttocks – that occurred at K.T.’s residence.

31K.T. acknowledged at trial that there was almost always someone else around when the incidents occurred.

32The alleged sexual abuse stopped some time before K.T. made disclosures to her mother in late May 2011, likely around the time that K.T. completed her recovery from dental surgery in March 2011. K.T. would have been 15 years old at that time.

33Several things were going on at around the time that the alleged sexual abuse came to light. First, K.T. had told D.D. that she was sexually assaulted by another male that she was dating. Second, K.T. had spoken with D.D.’s nephew, and the nephew had asked K.T. if the accused had ever touched her sexually. Third, that same day as her chat with the nephew of the accused, K.T. allegedly witnessed what she perceived to be a sexually compromising encounter between D.D. and her brother, I.T. Finally, K.T.’s mother had spoken to K.T. about the idea of them moving out of the residence and specifically asked K.T. if she had been touched inappropriately by the accused.

34It was D.D. who took K.T. to the hospital to be examined with regard to the sexual assault committed against K.T. by the other male. And it was the accused who took K.T. to the police station to be interviewed about that sexual assault. D.D. also drove K.T. to counselling sessions to talk about the sexual assault perpetrated by the other male.

35Prior to the end of May 2011, K.T. did not disclose to family members, hospital staff, her counsellor or the police anything about what D.D. allegedly did to her. She testified that she did not know how to say it and, further, she did not know that it was wrong until not long before the abuse ended.

36There were two specific inconsistencies that arose during K.T.’s cross-examination at trial. First, she was adamant at trial that D.D.’s nephew did not actually tell her that he had been touched by the accused. In her statements to the police and the children’s aid worker on May 27 and June 15, 2011, however, K.T. clearly indicated that the nephew had indeed told her that. Second, by way of omission rather than a direct contradiction, K.T. admitted at trial that she never told the police in her May 27 interview that she had been forced to give oral sex to D.D.

I.T., complainant, for the Crown

37Now 17 years old (born in […], 1997), this young man described several incidents of sexual touching allegedly committed against him by D.D., the former partner of I.T.’s mother.

38According to I.T., the abuse started when he was about 13 years old.

39The abuse allegedly took place after the children and A.T. moved in to the residence occupied by D.D. and numerous other persons.

40According to I.T., in January 2011, on the bed in D.D.’s bedroom in the basement of the residence, during the evening hours, the accused, with his hand, tickled I.T. under the knee caps, under the arms and then on I.T.’s bare scrotum and penis. The program “Criminal Minds” was on the television. The accused had invited I.T. down to the basement while most of the others were not at home. D.D. had said that he was lonely. The incident ended when I.T. moved away to the foot of the bed.

41I.T.’s account of that incident was very detailed.

42Further, according to I.T., there was a similar incident that occurred on the same bed in April 2011. D.D. and the boy were going to watch the movie “Taxi”. The accused tickled I.T.’s bare genital area. D.D. gave a quick rub of I.T.’s bare penis. D.D. held his hand there for a few seconds. The accused leaned-in close to the boy and whispered “I love you”.

43Again, I.T.’s account of that incident was very detailed.

44Similar touching occurred on two more occasions after the incident in April 2011.

45In addition, I.T. testified that there were times when the accused physically examined the boy’s bare penis, looking for an alleged lump. For example, D.D. would hold I.T.’s exposed penis and examine it before the boy had a shower.

46Eventually, K.T. and I.T. disclosed to each other that something was going on with the accused.

47In cross-examination at trial, when confronted with the possibility that some or all of these tickling incidents may have led to accidental touching of the boy’s genital area, I.T. replied emphatically and without hesitation that “it wasn’t an accident”.

48According to I.T., he never had a lump on his penis. In cross-examination, an issue arose as to whether that testimony from I.T. at trial is inconsistent with what he said to the children’s aid worker on June 15, 2011. During that interview, the worker asked I.T. many questions about the lump on his penis. The boy never said specifically to the worker that there was no lump. But, in my view, there is no direct contradiction. I.T. never positively said during that interview that there was a lump on his penis. At its highest, all that can be said is that the boy never corrected the apparent assumption by the questioner that there had been some lump. I do not find that the said issue adversely affects the credibility of I.T.

49Prior to the end of May 2011, I.T. did not disclose any of the alleged sexual abuse to the children’s aid worker whom he had been involved with.

The Accused, D.D.

50I have instructed myself in accordance with what we tell juries about evidence of the accused. If I accept the evidence of D.D. that he did not commit the offence in question, then I shall find him not guilty of that offence. If I do not necessarily accept his evidence but find that it leaves me with a reasonable doubt about his guilt on that charge, I shall find him not guilty of it. If I neither accept nor am left with a reasonable doubt in light of the evidence of D.D., I must still find him not guilty of that offence unless the rest of the evidence that I do accept persuades me of his guilt beyond a reasonable doubt.

51D.D. is now 45 years old. He was married prior to being involved with A.T. He has two children – a daughter born in 1995 and a son born in 2000.

52D.D. has lived in the same home in Hanover for many years. He has not been employed for a long time because of being disabled after being involved in a serious motor vehicle accident when he was about 19 or 20 years old.

53D.D. was adamant and unequivocal in his testimony at trial that he has never touched K.T. or I.T. in a sexual manner. He denied all of the criminal allegations that he is facing.

Analysis

The Issue

54Identity of the accused, ages of the complainants, jurisdiction and date(s) are not contentious issues in this case.

55Simply put, the issue is whether it has been proven beyond a reasonable doubt that D.D. did what he is alleged to have done to these two children.

Legal Principles Regarding Evidence of Child Witnesses

56K.T. is now an adult (18 years old), however, the alleged events all occurred while she was a minor (between about 8 and 15 years old). I.T. is still a young person.

57I must consider the evidence of the complainants in light of the decision of the Supreme Court of Canada in Regina v. W.(R.), 1992 CanLII 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.

58I note the following legal principles which I have applied in reaching my conclusions.

59First, corroboration is not required to find D.D. 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.

60Second, the evidence of a child witness is not to be considered inherently unreliable and automatically treated with special caution.

61Third, 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.

62Fourth, 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 is likely different than those of an adult.

Proof Beyond a Reasonable Doubt

63There are times when a particularly difficult case compels a trial judge to contemplate, anew, the principles and purpose of the criminal standard of proof. This is one of those cases.

64There is a reason why we refrain from describing "reasonable doubt" as a serious doubt, or a haunting doubt, or something else with reference to ordinary parlance. It is not simply because the Supreme Court of Canada has told us not to. It is because those expressions are unhelpful; they cheapen the significance of the criminal standard of proof and invite triers of fact to treat it as nothing more special than a tough decision that we make regularly in our ordinary lives.

65Proof beyond a reasonable doubt is inextricably linked to the presumption of innocence. They support each other. Proof beyond a reasonable doubt requires more than probable or likely guilt because accused persons are presumed to be innocent. The presumption of innocence necessarily requires a relatively high threshold of proof before it can be displaced.

66This is why criminal law is so different than civil or family litigation. In a civil case, there is no presumption that the defendant is not liable. Thus, it would make no sense to require the plaintiff to prove the case beyond a balance of probabilities.

67In civil or family law, the parties start with one having the burden of proof but neither enjoying some presumption of being entitled to a certain result unless and until proven otherwise.

68In criminal law, the accused is entitled to a certain result, an acquittal, unless and until the prosecution proves his or her guilt beyond a reasonable doubt.

69Then comes the rub. There is a danger that a trier of fact can be blinded by the light of the presumption of innocence. There is a risk that the trier will be so fixated on such a high standard of proof that nothing short of concrete or absolute certainty will be considered sufficient. "If the accused does not stand up and say I did it or I see some video recording of the crime, I have to acquit". Of course that is not true.

70Perhaps we put it best to juries when we borrow the language in Justice Watt's standard instructions - sureness is what the criminal standard of proof is meant to require.

71The process of arriving at verdicts is made even more difficult when, as here, there are multiple counts involving two complainants and no similar act ruling.

72There is a tendency in human nature to compensate for the weakness of one set of circumstances by relying on the strength of another. "I am not sure that my neighbour is an honourable man, but his whole family seems sincere so he must be too". That kind of thing.

73That would be entirely improper in most criminal cases. Here, two siblings allege that the same accused abused them sexually. Reasonable doubt on the charges involving K.T., for example, cannot be compensated for by latching on to the sureness of proof on the charges involving I.T., and vice-versa.

74The assessment of whether the charges have been proven to the requisite standard is done through the lens of the evidence related to those charges. We do not simply say "he must have done it to her because I am sure that he did it to him".

75These are not things to simply cut and paste in to judgments or pay lip service to. There is too much at stake. If we try our very best to apply these principles on a consistent basis, we will contribute to the minimization of the chances of a wrongful conviction, a miscarriage of justice or an improper and unjust verdict, whether of guilty or not guilty.

76It is better to risk saving a guilty soul than to condemn an innocent one - we often hear that sentiment, coined by Voltaire. I prefer what we say to juries which, coincidentally, is exactly what one of the triers said to the others in Twelve Angry Men: no jury can declare a man guilty unless it's sure.

The Case at Bar

77It is not my intention to cause a riff in the family of these two complainants. K.T. and I.T. are bright young adults who have been through a lot but have persevered and will continue to do so.

78I do not want to be seen as concluding that one of them is more believable than the other. It is not that simple.

79My verdicts are not the same for each complainant. These are the reasons why that is.

80I neither accept nor am left in a reasonable doubt by the evidence of D.D.

81The accused was not a credible witness. For example, he went to great length to describe the seriousness of his neck and back pain yet testified that he performed regular yard work when A.T. and her children lived with him. Those two things simply do not jive.

82Some of D.D.’s evidence makes no common sense. For instance, he testified that he first saw a lump on I.T.’s penis as the boy was getting out of the bathtub. According to D.D., the lump was readily noticeable and of a decent size, yet nothing was done to address it medically except to wait several weeks for an already scheduled appointment for a different purpose. I find that very strange.

83There were times that the accused was unreasonably coy in his testimony. For example, when asked by his counsel as to why the children’s aid worker visited the home, D.D. gave a host of reasons which included fighting by the children and issues of discipline. He did not volunteer that one reason was his chronic marihuana use; defence counsel was forced to ask D.D. about that specifically.

84D.D.’s testimony was, at times, manufactured. For instance, although he said that he had not shared a bed with A.T. for many weeks and was sleeping downstairs before K.T.’s dental surgery, he insisted that he slept upstairs with A.T. and the girl the first night after the surgery. That was nothing more than an effort to demonstrate that he could not have sexually touched K.T. that first evening, as alleged by K.T.

85Throughout both direct and cross-examination, the accused was overly verbose in his answers, to the extent that his lawyer had to repeat some questions to get him to focus. For example, when asked by defence counsel whether he was aware of a charge or charges being laid against the other male who sexually assaulted K.T., D.D. gave a long, rambling and non-responsive answer about that male having beaten someone up.

86D.D. was prone to guessing in his testimony. For instance, when asked by defence counsel about the alleged incident when I.T. was trying on clothes in front of the accused, D.D. offered that it “probably” happened. It was clear to me that D.D. did not recall the incident but was not forthright enough to simply say so.

87Finally, for the complete duration of the cross-examination, the accused had a tone of sarcasm and irritation for what appeared to me to be no good reason whatsoever. The cross-examination was polite and non-adversarial.

88I found the evidence of I.T. to be credible and reliable. I accept it entirely. Corroboration is not required. I.T.’s accounts of the sexual touching were detailed and completely unshaken in cross-examination. His evidence at trial was consistent throughout. He testified in a calm, mature and straightforward manner. He was not prone to exaggeration, emotional outburst, sarcasm, anger or revenge against the accused. He readily admitted his past shortcomings, for example, he said at one point that “I wasn’t the greatest child” and “I put my mom through a lot”. His memory of the abusive occurrences was vivid, even recalling what was on television at the time. I believe I.T. I was impressed with his honesty and sincerity.

89I am sure that D.D. is guilty of the charges involving I.T. I have no reasonable doubt.

90Based on the evidence of I.T., I find that D.D., with his hand, touched I.T.’s bare genital area on four occasions between January 2011 and May 2011. The touching was for a sexual purpose and in circumstances of a sexual nature. The victim was well under 16 years old at the time. Counts 4 and 5 on the Indictment have bee

91n proven beyond a reasonable doubt.

92I think that it would be unsafe to rely upon the evidence of K.T. as proof beyond a reasonable doubt. K.T. is a brave young lady. None of the below is meant as a criticism of K.T., but I cannot ignore that (i) there were two material inconsistencies in her evidence, one by direct contradiction and one by omission; (ii) her evidence at trial was replete with answers like “I’m not sure”, “I don’t remember”, “could have”, “maybe”, “I guess” and similar expressions of uncertainty; (iii) she admitted at trial that she has completely blocked out other memories of events that occurred around the time that these allegations against D.D. came to light, such as her visit to the hospital to be examined with regard to the incident involving the other male; (iv) in many respects, her evidence was vague on highly material issues, such as whether she was sexually assaulted by the accused at his sister’s place on more than one occasion; (v) her testimony at trial required leading by the Crown on highly relevant matters, such as whether D.D. had touched her breasts; (vi) her demeanour at trial was sometimes antagonistic towards defence counsel and vengeful towards the accused (victims of crimes are understandably angry and bitter, however, there are times when that anger gets in the way of delivering cogent testimony at trial); and (vii) her evidence at trial was partly inconsistent with that of I.T., whose testimony I accept, such as on the point of when the incident occurred with the boy trying on clothes in front of the accused.

93These are just some examples of why I am concerned about placing reliance on the evidence of K.T.

94This young lady has been traumatized by something. That is clear. She is hurting inside. I hope that the hurt goes away.

95I have a reasonable doubt as to whether D.D. sexually touched or assaulted K.T. or that he invited her to touch him sexually, in the ways alleged or at all. I am not sure.

96The three counts on the Indictment regarding K.T. have not been proven by the Crown beyond a reasonable doubt.

Conclusion

97For the foregoing reasons, I render these verdicts.

98Count 1 – sexual interference regarding K.T. – not guilty.

99Count 2 – sexual assault regarding K.T. – not guilty.

100Count 3 – invitation to sexual touching regarding K.T. – not guilty.

101Court 4 – sexual interference regarding I.T. – guilty.

102Count 5 – sexual assault regarding I.T. – guilty.

Conlan J.