COURT FILE NO.: CR-15-080
DATE: 20151021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Peter Leger, for the Crown
- and -
C.N.
Greg Deakin, for the Accused
Accused
HEARD: October 13, 14, 15, 16 and
19, 2015
REASONS FOR JUDGMENT
Conlan J.
I. Introduction
[1] This is another troubling case of a man charged with sexually assaulting a very young child.
[2] The accused was tried before me, without a jury, in Owen Sound on October 13, 14, 15, 16 and 19, 2015. I reserved my Judgment.
Sexual Assault
[3] C.N. is charged with one count of sexual assault. The formal charge reads:
Her Majesty the Queen presents that C.N., on or about the 6th day of May, 2014 at the City of Owen Sound, Central West Region, did commit a sexual assault on C.K., contrary to section 271 of the Criminal Code of Canada.
[4] The real issue in this case is whether the events alleged to form the basis of the crime charged ever took place.
[5] It is for Crown counsel to prove beyond a reasonable doubt that the events alleged in fact occurred and that the accused was the person involved in them. It is not for C.N. to prove that these events never happened. If I have a reasonable doubt whether the events alleged ever took place, I must find the accused not guilty.
[6] For me to find C.N. guilty of sexual assault, the prosecution must prove eachof these essential elements beyond a reasonable doubt:
i. that C.N. intentionally applied force to C.K.; and
ii. that the force that C.N. intentionally applied took place in
circumstances of a sexual nature.
[7] Because of the age of the alleged victim in May 2014, consent and honest but mistaken belief in consent are not applicable.
[8] If the Crown has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find C.N. not guilty of sexual assault.
[9] If the Crown has satisfied me beyond a reasonable doubt of each of these essential elements, I must find C.N. guilty of sexual assault.
Sexual Interference
[10] In addition to the sexual assault charge, C.N. is charged with one count of sexual interference. The formal charge reads:
And further, that C.N., on or about the 6th day of May, 2014, at the City of Owen Sound, Central West Region, did for a sexual purpose, touch C.K., a person under the age of 16 years, directly with a part of his body, to wit; his fingers and penis, contrary to section 151 of the Criminal Code of Canada.
[11] The same directions outlined above regarding whether the events alleged in fact occurred apply equally to this count.
[12] For me to find C.N. guilty of sexual interference, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
i. that C.K. was under sixteen years old at the time;
ii. that C.N. touched C.K.; and
iii. that the touching was for a sexual purpose.
[13] The age of the complainant is not an issue that is disputed. The boy was just two years old at the time of the alleged incident.
[14] If I am notsatisfied beyond a reasonable doubt of allofthese essential elements, I must find the accused notguilty of sexual interference.
[15] If I am satisfied beyond a reasonable doubt of all ofthese essential elements, I must find C.N. guiltyof sexual interference.
Presumption of Innocence
[16] There is no burden of proof on C.N. He is presumed to be innocent of each charge that he is facing. The Crowns bears the responsibility for proving, beyond a reasonable doubt, each essential element of each offence.
Evidence of the Accused
[17] C.N. did not testify. The Defence called no evidence on any of the voir dires or on the trial proper.
II. The Positions of the Crown and the Defence
[18] Both sides agree that this is a circumstantial case for the Crown. Both sides agree that the two principal pieces of evidence for the prosecution are what the child said to his mother and the DNA evidence.
[19] The Defence does not allege that the child’s mother is an incredible or unreliable witness, although it is submitted that what the child told his mother was tainted by leading questions.
[20] The Defence does not dispute that the accused is the donor of the semen stain found on the boy’s fitted bed sheet.
[21] The Defence does submit that there are other reasonable inferences that could be drawn from the proven facts. The Defence does not specify what those other reasonable inferences could be, however, presumably they would include the hypothetical scenario put to the Centre of Forensic Sciences, namely, that C.N. and the boy’s mother had sexual intercourse and some semen from the accused was innocently deposited on the bed sheet when the mother came in to contact with it. The Defence points out that we do not know when the semen was deposited on the bed sheet.
[22] The Defence submits that there is a lack of evidence which corroborates that C.N. sexually touched the child. For example, the boy did not make similar complaints to others with whom he spoke afterwards. Further, the mother did not observe any injuries to the child when she examined him before going to the hospital, and the doctor at the hospital observed no injuries either. There was no evidence observed or gathered from the boy’s diapers. There was no testing done of the child’s pyjamas. The anal swabs taken from the boy reveal no evidence against C.N.
[23] Finally, the Defence argues that there is no evidence of any force having been applied to the boy, and thus, a finding of guilt on the sexual assault charge cannot be sustained.
III. Rulings on Legal Issues
[24] There were three legal issues that required rulings before the Defence was put to its election as to whether it wished to call evidence at trial.
[25] On consent, those three matters were argued at the conclusion of the Crown’s case. The Court had heard evidence up to that point on both the trial proper and on the voir dires. The blended hearing procedure was conducted on consent of both sides.
[26] On October 16, 2015, I gave oral reasons for the rulings.
[27] First, I ruled that the utterances made by the alleged victim child, two years old at the time, to his mother, which utterances were testified to by the mother at trial, were admissible at trial for their truth. The Defence had opposed that Application by the Crown. I found that the Crown had established on balance that the said hearsay evidence met the necessity and the threshold reliability criteria. Necessity had been conceded by the Defence.
[28] Second, I ruled that the utterances made by the accused to a child protection worker for the local child welfare agency were admissible at trial, not as part of the Crown’s case but only for the purpose of cross-examination of C.N. in the event that he chose to testify at trial. The Defence took no issue with that.
[29] Third, I ruled that the utterances and the formal audio-video recorded statement by the accused to Detective Constable Daniels of the Owen Sound Police Service were admissible at trial, not as part of the Crown’s case but only for the purpose of cross-examination of C.N. in the event that he chose to testify at trial. The Defence had disputed the voluntariness of the statement, relying on oppressive circumstances. There was no Charter Application by the Defence. I found that the Crown had established beyond a reasonable doubt that the utterances and the formal statement were voluntary. Specifically, I rejected the Defence arguments regarding alleged oppression.
[30] As the Defence called no evidence at trial, two of the three rulings became moot in terms of assessing the merits of the charges.
IV. Analysis of the Merits of the Charges
A. Findings of Fact
(i) Facts not in dispute
[31] The following facts are not in dispute. These items were testified to by the Crown’s witnesses, are uncontradicted by any other evidence at trial, were not challenged during the cross-examinations of the Crown’s witnesses by Mr. Deakin and were not the subject of any submissions by the Defence at the end of the trial.
[32] First, as of May 6, 2014, C.N. and the child’s mother were neighbours and friends. They lived in separate apartments in the same triplex in Owen Sound. The accused had babysat the child several times when the mother had to run various errands.
[33] Second, as of May 6, 2014, C.N. and the child C.K., two years old at the time, had a good relationship.
[34] Third, during the evening hours of May 6, 2014, while the mother went out to do some laundry, C.N. looked after the boy.
[35] Fourth, when the mother returned to her apartment close to midnight on May 6, 2014, after the accused had left, the mother and the boy went to the hospital in Owen Sound. The boy was seen by a doctor. The boy was discharged from the hospital later in the early morning of May 7, 2014.
[36] Fifth, the police seized the child’s bedding on May 14, 2014. Submissions were made to the Centre of Forensic Sciences (“CFS”) in Toronto.
[37] Sixth, on June 10, 2014, the police seized some items from C.N.’s abandoned apartment. Three cigarette butts, a spoon and a Pepsi can were submitted to the CFS.
[38] Seventh, on June 18, 2014, the police seized a blood sample from C.N. That item was submitted to the CFS.
[39] The Defence concedes continuity of all of the seized items. No issue is taken with any of the above-noted seizures.
[40] Eighth, the CFS concluded that the boy’s bed sheet contained semen with identifiable DNA. Further, the three cigarette butts, the spoon and the Pepsi can contained identifiable DNA.
[41] Ninth, according to the CFS, the accused cannot be excluded as the source of the DNA profile from the semen stain on the bed sheet, the cigarette butts, the spoon and the Pepsi can. There were no identifiable differences between the DNA profile generated from C.N.’s blood sample and the DNA profile from the semen stain, the cigarette butts, the spoon and the Pepsi can. The chance that a randomly selected person unrelated to the accused would coincidentally share the observed DNA profile is 1 in 100 trillion (Exhibit 9).
[42] Hence, the Defence concedes that C.N. is the source of the semen stain found on the child’s fitted bed sheet.
[43] Again, none of the nine aforementioned items is in dispute.
(ii) The disputed facts
[44] The key factual issues to determine are how and when C.N.’s semen got on to the child’s bed sheet.
[45] The child’s mother testified that the following occurred when she returned to the apartment close to midnight on May 6, 2014, after C.N. left.
[46] She heard the boy whining. She went in to the child’s bedroom to investigate. C.K. appeared fussy. He was half asleep. He was frowning. He was sweaty. He looked unhappy.
[47] After unsuccessfully trying to calm her son for a few minutes, she picked him up and took him in to her own bedroom. She put him down on her bed, lying on his back.
[48] The boy then said “Chris touched my bum”. She said “what do you mean?”. He said “it hurt. Chris touched my bum”. She asked “did you cry?” He said “no”. She asked “did he spank you?” He said “no”. She asked “did he use his fingers?” He said “no”. She asked “well what else did he use then?” He said “his penis”.
[49] I accept that evidence from the child’s mother. I find as a fact that the child made those comments to his mother.
[50] In my view, the mother was a credible and reliable witness. She answered all of the questions put to her in a direct, straightforward and polite manner.
[51] When she could not remember some detail, she was not hesitant to say so, for example, she could not recall during cross-examination precisely what she told the doctor at the hospital.
[52] She did not embellish her evidence. For example, although she testified that she saw some redness around the anus of her son, she was quick to admit that the said redness could have been there before she went out that evening.
[53] There were no internal contradictions in the mother’s trial testimony.
[54] There were no contradictions between what the mother testified to and other evidence at trial that I do accept. It is true that Doctor Leif Destrade Sosa testified that the mother had told him at the hospital that it was the mother who used the word “penis” and the child simply agreed with that, rather than the child using the word “penis”. I reject that evidence from the doctor.
[55] Dr. Estrade Sosa had virtually no independent recollection of having dealt with the mother and the child. He admitted that his notes were not taken during his discussion with the mother. And they were not a verbatim account of what was said. He contradicted himself on material matters several times during his evidence at trial, for example, on whether he had examined the boy at all, whether he had taken any swabs from the child and whether he had contacted the sexual assault nurse. For a professional witness, his evidence generally was concerning.
[56] There were no material inconsistencies in the evidence of the child’s mother at trial and what she had testified to at the preliminary inquiry. The only two issues are that she omitted at the preliminary inquiry the fact that she had asked her son whether he had been spanked and omitted at trial the fact that the boy went silent and did not answer one of her questions.
[57] Neither of those items is material to the fact that the child effectively told his mother that Chris hurt his bum while using his (Chris’) penis.
[58] Having found that the boy said those things to his mother, am I satisfied that what the child said actually happened? Yes I am.
[59] First, although corroboration is not required, there is corroborative evidence. The semen of the accused was found on the child’s bed sheet.
[60] Second, I accept the uncontradicted evidence of the mother that she never had sexual relations of any kind with C.N.
[61] Third, there is no other reasonable inference that can be drawn from the proven facts. The only reasonable inference possible is that C.N. touched the boy’s bum with his penis and left semen on the child’s bed sheet.
[62] I disagree with the Defence that the child’s comments to his mother are unreliable because they were tainted by leading questions. No question at all precipitated the boy’s spontaneous allegation that the accused had hurt his bum. Further, I have found that it was the boy who said “penis” when asked the non-leading question of what else C.N. had used to hurt the boy’s bum.
[63] The CFS, through the expert witness Ms. Miller, acknowledges the possibility that C.N. and the boy’s mother had sexual intercourse and some semen from the accused was innocently deposited on the bed sheet when the mother came in to contact with it (Exhibit 10).
[64] There is nil evidence, however, to support that possibility. The evidence of the mother is to the contrary – she never had sexual relations of any kind with the accused. I accept that evidence.
[65] There is no burden of proof on the accused. Having accepted the evidence of the boy’s mother, however, the speculative possibility opined by the Defence must be rejected.
[66] I agree with Mr. Deakin that the boy did not make similar complaints to others with whom he spoke afterwards and that the mother did not observe any injuries to the child when she examined him before going to the hospital. Neither of those things changes my fervent view that what the boy told his mother was the truth of what happened.
[67] On the former, it is not that the child specifically denied that the accused had touched his bum but rather that the boy simply answered in the negative about whether he had been hurt by or was scared of anyone. That was the evidence of the child protection worker, which evidence I accept.
[68] On the latter, it is clear that the mother only briefly and superficially examined the boy before going to the hospital.
[69] I agree with Mr. Deakin that the doctor at the hospital observed no injuries to the child. But it is clear that the doctor conducted only a brief and non-invasive examination of the boy because the child was resistant.
[70] Besides, there is no allegation by the Crown that C.N. penetrated the child’s anus. It is not necessarily to be expected that mere sexual touching will leave discernable injuries.
[71] I agree with the Defence that there was no evidence observed or gathered from the boy’s diapers. From the testimony of the mother, however, which evidence I accept, it is clear that C.N. changed the boy’s diaper. There is no reason to suspect that evidence would exist on the new diaper. As for the old one, it was not tested. It is a neutral factor.
[72] Mr. Deakin is correct that there was no testing done of the child’s pyjamas . That is a neutral factor.
[73] The Defence is correct that the anal swabs taken from the boy reveal no evidence against C.N. That is a neutral factor. The swabs were clearly not properly taken or stored for DNA evidence – I accept the testimony of the nurse Ms. Aitken and Ms. Miller of the CFS in that regard.
[74] A reasonable doubt can arise not only from the evidence that is adduced but from the lack or absence of evidence as well. In this case, however, the absence of test results on items like the pyjamas and the diapers and the anal swabs does not leave me with a reasonable doubt.
B. The totality of the circumstances
[75] We have a situation where the mother was told something by her son very shortly after the incident occurred. What she was told was unprompted by her. What she was told was consistent with the child’s development and vocabulary at the time, for example, I accept the mother’s evidence that C.K. knew the word “penis”. What she was told was not clouded by any prior experience that the boy had at the time, for example, I accept the mother’s evidence that the child had not been taught any sexual education and had not observed any sexual relations (after all, he was only two years old).
[76] The mother had no animus towards the accused. Neither did the child. They were friends and neighbours.
[77] There is no suggestion that the boy had a history of making unfounded complaints or was prone to exaggeration.
[78] The child’s allegation is corroborated by the powerful scientific evidence. It is corroborated further by the suspicious behaviour of C.N. I accept the evidence of the mother that the accused left the apartment unusually quickly after she returned and told her not to enter the child’s bedroom.
[79] I am troubled as well by the sudden and unexpected departure of the accused from the area. In the absence of any Application by the Crown regarding after-the-fact conduct, however, I place no weight on that evidence in reaching my verdicts.
C. The findings of fact applied to the essential elements of the charges
[80] There is no doubt in my mind that C.N., while babysitting the boy during the evening of May 6, 2014, touched the boy’s bum with his penis and ejaculated on the bed, leaving his DNA profile in the semen stain found on the boy’s fitted bed sheet. It is superfluous whether the accused also used his fingers to touch the boy’s bum.
[81] These were clearly circumstances of a sexual nature. The touching was done for a sexual purpose.
[82] I make no finding that there was penetration of the anus. I am unsure whether the boy’s diaper was on or off at the time of the sexual touching.
[83] The Defence argues that there is no evidence of any force having been applied to the boy, and thus, a finding of guilt on the sexual assault charge cannot be sustained. I disagree. Force is any intentional touching and does not depend on penetration or a certain degree of exertion or the creation of any injury.
V. Conclusion
[84] The only reasonable inference to be drawn from the proven facts is that C.N. did exactly what the boy told his mother had been done to him.
[85] Children are not infallible witnesses. And of course they, like adults, sometimes do not tell the truth and other times are simply mistaken.
[86] Not here, though. The Crown has proven the case beyond a reasonable doubt.
[87] I find C.N. guilty on both counts.
Conlan J.
Released: October 21, 2015
COURT FILE NO.: CR-15-080-0000
DATE: 20151021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
C.N.
Accused
REASONS FOR JUDGMENT
Conlan J.
Released: October 21, 2015