ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-15-0002-00
DATE: 2015, December 18
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Richard Asselin
M. Lunski, for the CROWN
J. Wonnacott, Counsel for the ACCUSED
HEARD: November 9, 10, 13 and December 17, 2015
REASONS FOR JUDGMENT
TAUSENDFREUND, J
[1] With respect to these proceedings, including the reasons that now follow, there will be an Order under Section 486.4 CCC that any information that may identify the complainant or a witness shall not be published in any document or broadcast. As such, I will refer to the complainant and to her mother by their initials, C.F. and D.D. respectively.
[2] The accused faces a three count indictment alleging sexual assault and sexual touching contrary to sections 271, 151 and 152 of the CCC. Each of these three counts allege that it involved the complainant C.F.
[3] D.D. now age 32 at all times was the custodial parent of the complainant, now age 7. D.D. and the complainant’s father did not reside together. He had regular access on alternate weekends. Mother and daughter lived in a ninth floor two bedroom, one bathroom apartment. Mother was then regularly employed.
[4] From February 2012 to May 2014, D.D. and the accused, now age 44, were in a periodic long term conjugal relationship. He had moved into D.D.’s apartment. She and the accused shared one bedroom while C.F. occupied the other.
[5] As the accused was then largely unemployed, it was he who acted as the babysitter for C.F. while D.D. was at work. He and C.F. developed a good relationship. In fact they acted like they were best friends. Even after the accused and D.D. separated, he continued to text C.F. regularly and attended some of her soccer games. He also maintained contact with D.D. after their breakup. He and D.D. remained friends but no longer had a physical relationship.
[6] About a month after these two separated, mother and daughter were making school snacks for C.F. for the next day when C.F. spontaneously blurted out to her mother that last year she had seen Rich’s bird, that he tried to put it in her mouth and that he then he chased her around the apartment. I find that she intended to refer to the accused when she used the name “Rich”. At some stage during this disclosure to her mother of this or these alleged incidents, D.D. turned on her cell phone in her attempt to capture what her daughter was saying and demonstrating. What is unclear is the precise time during this episode that the cell phone was started to capture what was said and demonstrated by C.F. The transcript captured by the cell phone includes this verbal exchange between mother and daughter:
DD :. . . can you say it again?
CF: Yeah
DD: . . .what did you do?
CF: . . . well I shook . . . Rich’s bird then white stuff came out, it’s a little mouse drop and then, then I had to go wash my hands. And then – sometimes, you were . . . downstairs talking to Marcus and some you were at work and then some – you were going down to get the mail
DD: So he would, like, go into my room and tell you to go into my room?
CF: Yup.
DD: And then what, what did he do? Did you take your pants off?
CF: No.
DD: No, just, what did he do then?
CF: He took his pants off.
DD: And did what?
CF: Just his pants off. And his underpants.
DD: And then told you to do what?
CF: . . . pretend this is the mouse drop . . . and then I shook.
DD: . . . this is what he told you to do?
CF: Yeah – and then a mouse drop came off. And then I . . . and then I washed my hands with soap.
DD: Mmm hmmm.
CF: . . . And then I went out, in the living room. . . and then I just watched TV.
DD: Yeah? And Rich made you do that how many times?
CF: . . . three, three.
CF: . . . we need some of these . . . in here to be Rich.
DD: What are we doing?
CF: We’re . . . I can’t find my doggie so I’m going to have to use pony.
DD: OK.
DD: What are we doing?
CF: Pretend like here, pretend like here is . . . Rich’s bird . . . and I’m going. . . down to get the mail.
DD: Oh, OK.
CF: You have to shake it, silly.
DD: Well I don’t know . . . you have to show me what you did I don’t, I don’t know. And then he would go into where?
CF: I was shaking his bird with . . . Wait – I have to use poodle for the white stuff.
CF: . . . And then some white stuff came on. And then I went, I washed my hands, and then, the soap. And then I dried them off. And then I went off.
DD: And how come you never told me?
CF: Cause um . . . because I forgot about that.
DD: And you just remembered?
CF: Yup. When I said it I just got it back to me. Me ‘aint lying.
DD: You’re not lying?
CF: Nope.
DD: OK. Thanks, babe.
CF: You’re welcome.
[7] D.D. testified. She stated that she and her daughter in their verbal communication with each other used the word “bird” which was meant to refer to both male and female genital. D.D. stated that during the course of this disclosure to her by her daughter that C.F. ran out of the room and returned with a number of her stuffed animals. She placed a three foot long pink unicorn on its back and then placed a round bubble wand on the Unicorn’s lower abdomen and groin area. She described the bubble wand to be similar in appearance to a turkey baster with an opening for fluid at the lower end and a round squeezable handle at the top. D.D. further stated that when her daughter described the alleged incident to her, C.F. placed one or two of her fingers in the palm of her mother’s open hand. C.F. then retrieved a milk container to illustrate what had come out of the “bird”. That substance she described as “little tiny mouse drops” and as being similar to “warm milk”.
[8] The next day D.D. contacted the police and CAS. Later that day, C.F. made two unrecorded utterances to her mother. In the first she described to her mother the appearance of the “bird” of the accused. C.F. stated that it was smaller than her father’s and looked more like the bird of a four year old cousin. She also described the “bird” of the accused as having a blue line down the shaft and a pee hole at the end. In her evidence, C.F. stated that she had briefly seen her father’s penis on one occasion when she walked in on him in the bathroom and before he quickly got a towel to cover himself.
[9] The second utterance C.F. made to her mother the day following the disclosure was in reference to the amount of “white stuff” she had described to her mother the previous day. She said in so many words that the example of the “white stuff” coming out of the turkey baster was much more in that re-enactment by her than the “little mouse drops” that had come from “Rich’s bird”.
[10] Several days later, C.F. was interviewed by Detective McAuley. The interview was videotaped and filed as an exhibit. Excerpts of that interview are these:
CF: I don’t want my stuffies . . . to hear this.
D. McAuley: You don’t? You don’t want your stuffies to hear this?
CF: No.
D. McAuley: . . . If you don’t want your stuffies to hear this . . . maybe we should put them back in the bag?
CF: They still hear stuff.
CF: Yeah. Pretend that’s Rich. . . and then. . .
D. McAuley: Pretend. . . this is Rich?
CF: Yeah.
D. McAuley: Who’s Rich?
CF: Somebody my Mom used to . . . and the white stuff came out.
D. McAuley: He shook his bird . . . and the white stuff came out? And you just had the pen there . . . and what was that?
CF: The bird.
D. McAuley: What was that supposed to be?
CF: His bird.
D. McAuley: . . . What’s a bird?
CF: Well . . . something you pee out of.
D. McAuley: What . . . do you remember . . . what Rich was wearing?
CF: Just . . . just his shirt . . . and no underpants.
D. McAuley: . . . and do you know what you were wearing?
CF: I was wearing my clothes.
D. McAuley: When . . . when you . . . when you did that thing with Rich? What was Rich doing?
CF: He was laying on the bed.
D. McAuley: . . . and were his hands doing anything?
CF: Nope.
D. McAuley: And . . . was Mommy home when that happened?
CF: Nope.
D. McAuley: Did you ever tell anyone else . . . about . . . umm . . . the thing you told Mommy about Rich?
CF: No.
D. McAuley: Did . . . Rich ever touch you?
CF: No.
D. McAuley: You know that thing that you talked about with . . . that . . . happened with Richard’s bird?
D. McAuley: . . . and do you know how many times that happened . . .
CF: Three.
D. McAuley: Three?
CF: Yeah. Three . . . I think.
D. McAuley: You think? Okay. And you know how . . . when we first started talking . . .
CF: Yeah.
D. McAuley: And you said you didn’t want your stuffies to hear?
CF: Yeah.
D. McAuley: Why didn’t you want them to hear?
CF: I just didn’t want them to hear.
D. McAuley: When . . . when Rich asked you to do that thing . . . to his bird . . . do you know why he did it?
CF: No. Didn’t ask this time.
[11] C.F. testified. She described the “bird” of the accused to resemble a mushroom stem with a triangle on top and that “white stuff” had come out of the end. She stated that she had gone to her mother’s bedroom as the accused had asked her to shake his “bird”. He was then lying on her mother’s bed. She remained on the floor. He did not touch her during that episode. She described the white stuff which had come from his “bird” as looking like milk or cream. At that stage the accused then pulled his pants up and she went to the kitchen to wash her hands with soap and water as the white stuff had been all over her hands. She said the white stuff felt and looked “gross” and that it was cold. She did not want her stuffies to hear her speak of that stuff. She said that she had never seen a person’s bird either on TV or in a movie, but in cross-examination stated that she thought she might have seen a “bird” in a movie. She was then asked if she had ever seen a movie called “Seed of Chuckie”. She stated that she had watched this movie with the accused. This video was then played. It included a scene where a male puppet is moving his fist back and forth in front of its groin area in a motion resembling male masturbation. Another scene has a female puppet stand over a prone female who is either unconscious or dead. The female puppet is handling an object resembling a turkey baster which she is holding on top of the groin area of the prone female. A white substance appears to come from the opening of this baster. C.F. then allowed again that she had seen a “bird” in a movie but that this “bird” did not look like the “bird” of the accused. She had never seen the “bird” of her father who when he showered was always wrapped in a towel. She also stated that she had never seen her mother and the accused in bed without clothes.
[12] D.D. in her evidence reviewed her daughter’s disclosure to her which she captured in part on her cell phone. C.F. described to her mother the incidents with the accused. She placed one or two fingers in her mother’s open palm and then went to retrieve a milk container to tell her mother what had come out of the “bird” of the accused. She then got a stuffed Unicorn and placed it on its back on the floor. She also retrieved a “bubble wand” which looked like a turkey baster and placed that between the legs of the Unicorn with the handle towards the top and the part that expels the bubbles toward the lower end of the Unicorn. She then described the milk like substance to be “little tiny mouse drops” which were warm like milk.
[13] D.D. stated that on one occasion C.F. had walked into her mother’s bedroom when she and the accused were naked. They immediately covered themselves with a sheet. She did not believe that C.F. would have seen any of their genitalia.
[14] The accused testified. He denied the account that C.F. had given regarding her stated inappropriate interaction with him. Specifically, he denied having any sexual contact with her.
[15] The accused agreed that he and C.F. were alone in the apartment on many occasions as he had become her babysitter while her mother was at work. He and C.F. became good friends and enjoyed a good relationship.
[16] He and C.F. watched “Seeds of Chuckie” more than once. He then related an incident when C.F. had come into her mother’s bedroom while he and D.D. were having sex. He jumped out bed with an erect penis to retrieve a sheet to cover himself and D.D. However, he is not certain if C.F. would have seen his penis but that it was a possibility. He also believes that C.F. may have been able to see him naked while he was in the shower, but he is not certain about it.
[17] He acknowledged that he has a dated record for impaired driving. In view of the type of record and its dated nature, it will not impact on my finding of his credibility.
ANALYSIS
[18] The accused testified. He denied the allegations and contradicted entirely the evidence of C.F. that on three occasions he had her touch him inappropriately. I remind myself that the verdict must not be based on the choice between the evidence of the accused and the evidence of the Crown: R. v. Vuradin, a 2013 decision of the SCC. I also remind myself that I must be guided by the principles of R. v. W.D., a 1991 decision of the SCC. These are:
If I believe the evidence of the accused that he did not commit the offences charged I must find him not guilty.
Even if I do not believe the evidence of the accused, if I am left with a reasonable doubt about his guilt, I must find him not guilty of the offence.
Even if I am not left with a reasonable doubt based on the evidence of the accused, I may convict him only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.
[21] The complainant at the time she testified was 7 years of age. The alleged incidents are said to have occurred at a time when she was between 5 and 7 years old. In view of her age, I also remind myself that I must not apply adult tests for creditability to the evidence of a child. I must take a “common sense” approach taking into account the strengths and weakness which have characterized her evidence. A child who testifies may not be able to recount precise details or communicate the particulars of an event the way an adult can. That in itself does not mean that the child has necessarily misconceived any particulars of what had occurred: see R. v. B.G., a 1990 decision of the SCC and R. v. W.R., a 1992 decision of the SCC.
[22] I accept the submission of Mr. Wannacott that the accused testified in a straight forward manner, was not evasive and did not exaggerate, embellish or colour his evidence. He withstood cross-examination without a blemish. Essentially his position is that the incidents related by C.F. with which he is charged did not occur. There is no evidence to corroborate the allegation, but, of course, none is required.
[23] I note that C.F. gave some contradictory evidence. She described the “white stuff” as being like warm milk and on another occasion as being cold. She gave conflicting evidence on whether she had ever seen a person’s “bird” on TV or in a movie.
[24] Mr. Wannacott urges that the descriptions C.F. gave of the male penis could well have come from having seen the accused naked in bed with D.D. or while in the shower and that the description of the “white stuff” could have come from the imagination of a young child having watched the “Seed of Chuckie” movie.
[25] The evidence on those issues, in my view, does not rise above the level of a possibility. With respect to the evidence C.F. gave, I make these observations:
Disclosure to her mother was not prompted, but was entirely spontaneous and apropos nothing these two were then talking about while they were busy making school snacks for C.F. for the next day. She related incidents involving the accused with whom she had maintained a good relationship
C.F. retrieved some of her stuffed toys to demonstrate what occurred.
She did not want her stuffies to hear what she had to say when she was interviewed about the incidents.
She remained on the floor fully clothed when she was in the bedroom with the accused who was lying on the bed. She stated that he did not touch her.
She described the ejaculation as mouse drops and that she then went to wash her hands with soap.
She demonstrated with hand gestures when she described the act of male masturbation.
She stated to her mother the day following her disclosure that the white stuff from the accused was much less in volume than the stuffed poodle that she had brought out for her mother when describing what had occurred.
She provided detailed descriptions of a male penis.
[26] These snippets of her evidence, some of which are singular and others colourful, I accept as genuine and truthful, indeed as I do her entire evidence.
[27] I am also struck by the evidence that C.F. appeared to have enjoyed the company of the accused and that these two appeared to get along like good friends. I accept that evidence which is uncontradicted. In the face of that evidence I find it difficult to accept that C.F. would tell such a tale about her good friend if there were no substance to it.
[28] On the basis of the various particulars of the evidence C.F. gave, as I just recounted and considering all of the evidence including the denial by the accused, I am satisfied beyond a reasonable doubt that the Crown has proved its case. The accused will be found guilty on each of the three counts.
Tausendfreund, J
Released: December 18, 2015
COURT FILE NO.: CR-15-0002-00
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
RICHARD ASSELIN.
REASONS FOR JUDGMENT
TAUSENDFREUND, J
Released: December 18, 2015