R. v. Hardman, 2015 ONSC 62
COURT FILE NO.: 1745/14
DATE: 20150109
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DAVID A. HARDMAN
ANIKO COUGHLAN, for the Crown
PHILLIP MILLAR, for the David Hardman
HEARD: December 15 and 16, 2014
DESOTTI, J.
A. The Facts
[1] The accused, David Hardman is charged with a 1 count indictment as follows:
That between the 1st day of January in the year 2012 and the 31st day of August in the year 2012 inclusive, at the City of Sarnia, in the Province of Ontario being a person of trust or authority towards D.M., a person with a mental disability, did without the consent of D.M. for a sexual purpose incite D.M. to touch directly with a part of his body, to wit penis, the body of David Hardman, contrary to Section 153.1 of the Criminal Code of Canada.
[2] The complainant is a mentally challenged individual with Down syndrome and operates at the level of an eight year old child and is 58 years of age. He has lived with the accused, David Hardman and his wife for 11 years. The accused shared a close relationship with the complainant and believed that the complainant would continue to work in Sarnia and live in his apartment.
[3] Nevertheless, from time to time, the Hardmans and the K.F. were at odds with certain circumstances that involved the complainant and that came to their respective attention. On balance, I conclude that both parties acted appropriately but from each other’s different perspective. Despite this friction from time to time, I do not consider motive as an issue in this trial.
[4] The complainant, D.M. in mid-August (August 14th), flew to visit with his sister in New Jersey. When he arrived in New Jersey and attended at his sister’s residence both Mr. K.F.1 and his wife K.F.2 noticed that the complainant was in some physical duress and appeared to be leaking some liquid from his lower torso through his pants. Upon examination by Mr. K.F.1 in the bathroom and observed in a mirror by Ms. K.F.2, significant and serious sores were observed on the complainant’s groin area.
[5] Ms. K.F.2 panicked and after reviewing similar types of lesions on the Internet believed that these sores reflected a diagnosis of aids. A visit to an aids clinic confirmed that he did not have aids but Ms. K.F.2 was still concerned that the infection was a sexually transmitted disease. Three days later they attended at a ‘walk-in-clinic’ and it was determined that the complainant had sustained a serious staph infection and that he had not contracted a sexually transmitted disease (STD).
[6] I do not take any issue that the doctor who responded to the concern about sexually transmitted diseases may have indicated to Ms. K.F.2 that he would have to call the police if there was any allegation of sexual assault. Ms. K.F.2, to protect her brother and believing that the perpetuator was the accused, denied any sexual assault by anyone. She intended to pursue her concern about her brother’s assertion that he had been sexually assaulted with charges or potential charges in Sarnia.
[7] However, in the course of all of this concern, Ms. K.F.2 did ask her brother whether anyone had sex with him. The complainant replied “how did you know that”. This question was followed by “did David Hardman put his penis in you”? The complainant answered in the affirmative.
[8] Obviously, the Sarnia police were contacted and eventually Mr. K.F.1 removed from the complainant’s apartment his belongings and terminated the relationship of the complainant with Mr. Hardman. The Sarnia police eventually laid a charge against the accused as a result of a videotaped interview with the complainant, D.M.
B. Analysis
[9] Despite some friction over the move on August 31st, I do not construe any of these comments that were made or said between Mr. K.F.1 or Mr. Hardman during the extraction of the complainant’s personal property from his apartment at the Hardman residence as indicative of anything.
[10] I would also agree with the Crown that the complainant gave very credible evidence as did the accused, David Hardman. The fact that the complainant indicated that this sexual assault occurred when he was home sick from work and that the accused laid on him penis to penis such that his “balls hurt” is significant evidence as was the statement by the complainant concerning oral sex to his sister and on the same video that “it doesn’t taste good”.
[11] What is decidedly of great concern in this trial is that clearly the complainant can be persuaded to say things or give answers to people who he believes are in authority. I would conclude that those individuals that are part of this trial would include the K.F., the Hardmans, the police, and his Community Living Worker, Terry Bain.
[12] For example, on two occasions once by Officer Toutant and once by counsel for the accused, the complainant was suggested an incorrect answer to a colour of a chair and agreed with the incorrect colour. In short, the complainant is very malleable and susceptible to suggestions and leading questions.
[13] In this sense, when K.F.2 indicated, in answer to a question in cross-examination, that she did not believe her brother was susceptible to suggestion, I do not share that belief and conclude that just the opposite to be the case.
[14] In fairness to Ms. K.F.2, she does acknowledge that “if he was pressured, if he was afraid, he might be susceptible to that”. In addition, in answer to a question about her brother being afraid of getting in trouble, she does admit that he is afraid of getting in trouble.
[15] Most importantly, she does affirm that in her frightened state with her concern that her brother might have Aids that she agreed with a question in cross-examination that she had asked her brother the following questions and received the following answers as follows:
Q D.M. have you had sex with anyone?
A. Yes.
Q. And D .M. said, no.
A. Right
Q. That’s correct so far, right?
A. That’s correct, yes ….
Q. … and then you decided to take a more direct approach and at that point suspecting that he had Aids, you asked him if the pastor who had taken care of him for the last 11 years had had sex with him.
A. Yes.
Q. So you, from a position of authority, are the first person to put the words David Hardman into D.M.’s head?
A. Yes.
[16] Later Ms. K.F.2 affirmed the following exchange of questions and answers that were given at the preliminary hearing as follows:
Q. I needed to ask D.M. if he had any sexual contact with anybody. When I asked him if he had sex with anyone he said no. I was very loving and reassuring. I told him that I wasn’t mad, I just needed to know because of all the sores he had on him. So you told him that you needed to know because of all the sores that were on him …
A. Yes.
Q. … told him that someone who had touched him could have a bad disease, that I didn’t want him or anyone to get sick, and then I took a more direct approach and then I asked him if Dave Hardman had ever put his penis into him. He looked at me and said, how did you know that? That’s - that was your statement written on ….
A. Yeah.
[17] There are more questions and answerer dealing with whether the accused had ever placed his penis into D.M.’s mouth, but from defence counsel’s perspective, the thought of sexual impropriety on the part of the accused, David Hardman has been suggested and placed in the mind of D.M. and the truthfulness of the allegation, in light of this suggestion, creates a reasonable doubt.
[18] What concerns me, therefore, is not that the complainant has now maintained both to his sister, Officer Toutant and when he gave evidence at this trial, that he was sexually assaulted by Mr. Hardman, but how this assertion or allegation arose.
[19] To put this in context, if the same complainant while visiting his sister exhibited no excretions from sores, no concern that he may have aids or a sexually transmitted disease and was simply asked how he enjoyed his time at work, his apartment, his meals and his relationship with the Hardmans, and then he revealed that the accused placed his penis inside of him or something else that would cause concern of some inappropriate sexual contact, I would be far inclined to believe this allegation beyond a reasonable doubt.
[20] Unfortunately, despite the complainant’s now direct evidence given in difficult circumstances and the maintenance of the inappropriate sexual contact with the accused, I am left with a reasonable doubt with respect to the authenticity of this allegation given the original angst reasonably held by the K.F. but which may have directed the complainant to believe that he should answer his sister’s questions about the potential sexual conduct of the accused and the complainant in an affirmative response.
[21] In the result, I have a reasonable doubt and find the accused, David Hardman not guilty.
“ Justice J.A. Desotti”
The Honourable Mr. Justice John A. Desotti
Released: January 9, 2015
Cases Considered:
R. v. R.E.M. 2008 SCC 51, [2008] S.C.J. No. 52 (S.C.C.); R. v. J.A. 2010 ONCA 491, [2010] O.J. No. 2902 (Ont. C.A.); R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), O.J. No 4749; ; R. v. A.S. 2002 CanLII 44934 (ON CA), [2002] O.J. No. 1950 (Ont. C.A.); R. v. P.R. [2014] O.N. No. 757; R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30;
CITATION: R. v. Hardman, 2015 ONSC 62
COURT FILE NO.: 1745/14
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DAVID A. HARDMAN
REASONS FOR JUDGMENT
DESOTTI, J.
Released: January 9, 2015