CITATION: R. v. I.P.W., 2016 ONSC 1558
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
I.P.W.
L. Ross, for the CROWN
W. Watson, Counsel for the ACCUSED
HEARD: February 29, March 1 and March 2, 2016 Reasons delivered orally April 27, 2016
REASONS FOR JUDGMENT
TAUSENDFREUND, J
1With respect to these proceedings, including the reasons that now follow, there will be an Order under s. 486.4 CCC that any information that may identify the complainant or a witness shall not be published in any document or broadcast.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 by her initials, A.H. and to the accused by his initials I.P.W.
2The accused faces a two count indictment alleging sexual touching of A.H. with his hand contrary to s. 151 CCC and sexual assault of A.H. contrary to s. 271 CCC, both between February 24, 2010 and October 31, 2014.
3The accused is now 38 years of age. He and the complainant’s mother K.I. have resided in a common law relationship for about 13 years. A. H. is now 16 years of age. She was 3 years old when her mother and the accused started their common law relationship. The accused is not the complainant’s biological father, but stood in loco parentis to her. He at all times represented the father figure in her life and held a position of trust and authority for her. The accused and the complainant’s mother have two biological children of their relationship, both boys, now ages 12 and 14.
4The family at all times lived in the Bancroft area, for 7 years in St. Ola south of Bancroft and as of early 2014 in Bird’s Creek, north of Bancroft.
5In the summer of 2014, A.H. made certain disclosures to two of her friends. Particulars of these disclosures came to the attention of the CAS who contacted the OPP. That brought about two video recorded statements A.H. gave to Detective Dano, one on October 16 and the other on October 17, 2014. These statements were played in court and were adopted by A.H. as her evidence. The accused then contacted the OPP and provided a video statement on October 22, 2014. That statement was admitted to have been voluntarily made and on consent was introduced as part of the Crown’s case. The accused did not take the stand to testify in person, as he was rightly entitled to do.
ALLEGATIONS MADE BY COMPLAINANT
6A. H. stated that an incident occurred when she and her family lived in St. Ola (“the St. Ola incident”). She believed that this had occurred when she was about 10 years old. As she could not be certain as to the exact date, she later stated that it happened when she was between 10 and 12 years of age. On that occasion, her mother and brothers had already retired to their bedrooms. That left only A. H. and the accused in the living room watching TV. He sat in a “lazy boy” chair and she partially on his lap and partially on the arm rest. They were covered either by one large or two smaller blankets. The fact that these two sat together in the “lazy boy” chair and in a very relaxed and familiar position was then nothing unusual, as this had happened on many prior occasions. A. H. was not then feeling well. She had been seen by a physician for a stomach infection including a raw bellybutton. A. H. stated that the accused initially rubbed her stomach and then slowly moved his hand inside her pants to her thigh and then to her crotch in front of her vagina where he twirled his finger. He did not penetrate her vagina. A. H. said that she had to go to the bathroom. She got up out of the chair and left. The accused followed her into the bathroom. She told him to leave her alone to which he responded, “But you let me do that”. He then walked away.
7Two days later, A. H. raised the issue with her mother. A short time later the accused came to A. H. and said that he would never intentionally have done that to her and that he had thought that it was her bellybutton he was touching.
8After that incident, nothing untoward happened between A. H. and the accused for about 8 months until late 2013 when certain actions by the accused involving A. H. began to repeat themselves. She described these as follows:
WRESTLING
Wrestling on the living room floor appeared to be an accepted family activity in this group. The mother was not included in this activity, although she appeared to not only to have condoned it, but to have encouraged it. When A. H. attempted to remove herself from further participation in this wrestling activity with the accused, her mother asked her why she was no longer participating.
On the surface, this wrestling activity appeared to be quite innocuous. It certainly was so with the boys. The problem for A. H., as she described it, was the fact that the accused would take liberties with her. She stated that during a wrestling encounter with her he might momentarily touch her on her breasts and/or on her vaginal area. She described it as “little pokes and stuff”. She stated that those wrestling incidents happened more than 50 times.
HUGS
He would periodically ask her for a hug. When she complied, she stated that as part of the hug, he would “poke her”. By that she meant that he might touch her chest and/or her vaginal area, both over and under her clothing. She described one occasion that was said to have occurred about a month prior to her disclosure to the police. She was then in front of the bathroom in her pajamas. He asked her for a hug and during the course of it, he stuck his hand inside her pajama pants and on top of her vagina.
TIM HORTONS
A. H. acknowledged that she was alone with the accused in the car on many occasions. In that setting and particularly when they were in the drive thru line up at Tim Hortons, the accused would reach across and touch her on top of her clothes between her legs and in her crotch area. She stated that this may have happened 10 to 20 times.
BEDROOM INCIDENT
A. H. described an incident when she was lying in her mother’s bed. She was alone in the room when the accused came in. She was fully clothed and the accused partially so, he sporting only boxer shorts. The accused grabbed her legs and wrapped them around him and made a humping motion. A. H. told him to stop and to get away from her to which he said “Well your mom seems to like it”.
9It was in or about March 2014 that A. H. had a further talk with her mother, in view of the intrusive activities by the accused which had started again some months earlier. She and her mother were then alone in the kitchen. She reminded her mother of the St. Ola incident, that it had started again with her dad touching her in places he should not and that she did not know what to do. She started to cry and ran to her room. She then heard her mother and the accused argue loudly. Her mother did not contact the police. However, A. H. was called to the kitchen where both her mother and the accused were. Her mother said that the accused had never meant it that way and that he was just “poking and playing around”. These actions of the accused then stopped, as they had after her St. Ola complaint. The reprieve, however, was only temporary, as the inappropriate touching soon resumed.
10She then spoke to her 21 year old cousin Kayla and confided in her as to what was going on. She asked her cousin to tell her “grammy” about it. Her “grammy” lived an hour’s drive away. Grammy came to visit within a matter of days. She described a wrestling incident she observed between the accused and A. H. that occurred during her visit. It had initially also included the two boys who at some stage and for unknown reasons were excluded from further participation in that wrestling activity. Grammy could hear and see part of the wrestling activity taking place in the next room. She heard A. H. say “I am going to tell” and the response by the accused to the effect “Who is going to believe you?”.
11After the second family meeting in March 2104, A. H. did not raise her complaints again with either her mother or the accused. She said that she was too scared and felt that she was unable to stand up to the accused. However, the accused raised the subject with her. He did so when it was just the two of them. He said to her that “after your little episode mom has been weird ever since”. A. H. attributed that reference by the accused to “your little episode” to refer to the second family meeting. She took these references to her by the accused to mean that he blamed her.
12Some months later and I take it to be in the early October 2014 timeframe, A. H. disclosed to her friend Mitchell the inappropriate touching of her by the accused, as she had described them. A day or two later during a class at school, she wrote a letter about the accused touching her, as she said “in places no one should” and that she had told her mom about it at the start of the year. She wrote that it had resulted in a huge fight with the accused telling her mom that he had not meant to do it, that the abuse then stopped for about a month but then had started again and was getting worse. She was scared and did not know what to do. She did not want to tell the police as she wanted to keep her mom and dad happy, yet she could not feel at home anymore as she felt neither safe nor welcome. She had addressed that letter to Mitchell’s mom, Becky. In that letter she asked Becky for help. A day or two after she gave the letter to Mitchell, the Children’s Aid Society and the police became involved. That led to the two statements she gave to the police on October 16 and 17, 2014.
THE POSITION OF THE ACCUSED
13The accused did not testify directly. His evidence was received indirectly by way of the video statement he gave the police on October 22, 2014 and what A. H. and her grandmother described as to their observations of the accused and statements he made to them or to third parties which they had heard.
14The accused denied that he touched the complainant at any time for a sexual purpose and or in an inappropriate manner.
15The accused recalled the St. Ola meeting. He denied that he had touched A. H. inappropriately and that he was sorry if he had made her feel uncomfortable. He recalled that he was rubbing her tummy and her bellybutton, as she was then not feeling well due to an upset stomach. He did not recall that the complainant got up from the chair to go to the bathroom, as he had remained in that chair where he had slept the balance of the night. He acknowledged that it was possible that he might have touched her vaginal area, but if he did, he was unaware of it and that, in any event, he had not intended to touch her on that part of her body.
16He denied that he touched her inappropriately on top of her clothes while in the drive thru lineup at Tim Hortons.
17On the allegations by the complainant that he had said to her “What’s in it for me?” the accused stated that she had misinterpreted him. He was referring to her allowance and that in return she was expected to maintain her room in a tidy manner and attend to other expected small household chores.
18He spoke about the wrestling or play fighting which he acknowledged was a regular occurrence in his household. This included not only the complainant, but also his two sons. He denied that he ever intentionally touched A. H. inappropriately during the course of such wrestling activity. As A. H. had complained that on occasion the wrestling had gotten too rough for her and that he may have unintentionally hurt her, he suggested that they use a code word, “bacon”. If she were to utter that word, he would understand that she was then not play acting, but wanted him to loosen his grip so as not to hurt her. A. H. confirmed that he had suggested the proposed use of the code word “bacon”. She stated that he had raised that topic with her after the second family meeting, and that only the two of them knew about it, but that it was never actually uttered or used by her.
19He denied the entire incident A. H. had described when he was said to have wrapped her legs around him followed by a “humping” motion by him.
20In his statement he was asked by Detective Dano that following the St. Ola meeting whether there was ever another meeting like that on the same topic. The accused answered that there was no such further meeting and in fact nothing like that after their move to Bird’s Creek. Later in the statement there is this exchange:
Detective: . . . do you recall making a comment to [the complainant]. . . around Thanksgiving weekend. . . you know your mom has been a little weird since your little episode?
Accused: Yeah.
Detective: . . . what do you mean by a little episode?
Accused: Her misunderstanding and I said to her, that has an effect on people, . . . it doesn’t [calls complainant by first name], it doesn’t just go away . . .
Detective: Yeah.
Accused: This is months ago I said to her because this is like two or three months after the incident I said to her, mom’s finally coming around. . . for a while there she was harsh, like and I don’t blame her, I would be too, but, like I said to [names complainant], it’s just time, like really, there’s nothing I can change about it, like what has taken place. . .
Detective: Okay, so do you remember where, where you were living when you had that, made that comment to her?
Accused: I think we just moved to Bird’s Creek I think.
Detective: So what led up to you making that comment?
Accused: ‘Cause we were getting along so well, like things were so much better.
Detective: Between who?
Accused: Me and [names complainant].
Detective: Okay.
Accused: Like nothing had ever happened.
21I accept that the phrase “your little episode” refers to the second family meeting in March 2014 after this family had moved to Bird’s Creek.
22The accused stated that it was not unusual that he and the complainant would be alone together. It happened frequently, he said and it was always on a voluntary basis. The complainant had accompanied him to his meetings at the fire hall, driven into Bancroft with him on many occasions and had accompanied him to a garage where she helped him with sanding a car.
Analysis
23Although the accused did not testify directly, his evidence found its way into the record by way of his video statement and evidence given by witnesses of statements that he was said to have made. He denied the allegations he that had touched the complainant inappropriately and/or in a sexual manner. Accordingly, I find that I must be guided by the principles of R. v. W.D., a 1991 decision of the Supreme Court of Canada. 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.
24I also remind myself that the verdict must not be based on a choice between the evidence of the accused and the evidence of the Crown: R. v. Buradin, a 2013 decision of the SCC.
25The complainant at the time she testified was 16 years of age. The alleged incidents are said to have occurred at a time when she was between 10 and 14 years old. In view of her age, I also remind myself that I must not apply adult tests for credibility to the evidence of a child. I must take a “common sense” approach taking into account the strengths and weaknesses 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.
26I also note and will be guided by these comments of Watts, J.A. in the 2009 decision by the OCA in R. v. H.C. at para 42:
“. . .Credibility requires a careful assessment, against a standard of proof that is common to young and old alike. But the standard of the “reasonable adult” is not necessarily apt for assessing the credibility of young children. Flaws, such as contradictions, in the testimony of a child may not toll so heavily against credibility and reliability as equivalent flaws in the testimony of an adult.”
ASSESSMENT OF EVIDENCE
27The accused raises several apparent inconsistences in the evidence A. H. gave at trial compared to what she said at the preliminary inquiry. For example, the accused pointed to her statement that she left the Lazy Boy chair in an effort to extricate or disentangle herself from the accused as a result of being touched by him on her vagina. Yet at the preliminary inquiry she stated that she left to go to the bathroom as she felt nauseated. Both she and the accused stated that she did not feel well and that is why the accused had initially rubbed her stomach. I find that there may well have been more than one reason why she left to go to the bathroom, one of which was to get away from the accused on that occasion.
28The accused also points to certain evidence A. H. gave compared to the recollection of her cousin Kayla and her “grammy” on how the information found them in the summer of 2014 about the complainant’s unhappiness of the circumstances confronting her in her home. I view these differences of her evidence at trial compared to her evidence at the preliminary inquiry to be marginal at its highest and not material to my assessment of the evidence A. H. gave.
29The accused further states that the comment attributed to him to the effect “What’s in it for me?” was misinterpreted by A. H. It was meant to relate entirely to obligations A. H. had of household chores, in return for which he had bought her a favourite coffee at Tim Horton’s. That may be so. However, that and other similar comments are attributed to the accused by A. H. on more than one occasion. The comment itself is equivocal. Although the accused on occasion may well have intended an entirely innocent meaning such as having the complainant attend to her chores, I am not satisfied that this type of comment by the accused was always so innocently intended, when viewed in the context of the entire interaction between these two from the time of the St. Ola incident to the date of her disclosure to the police on October 16, 2014.
30The accused also raises the spectre of recent fabrication. He points to several incidents in the summer and early fall 2014 which gave rise to interfamily conflict between the complainant and her parents. There may well have been examples of such conflict, unrelated to the allegations A. H. made in this trial against the accused. However, her evidence must be assessed in its entirety. That includes the St. Ola incident, followed by her complaint of it to her mother two days later, then a further complaint to her mother in March 2014, after which these incidents of being touched then stopped for some months, only to resurface and actually escalate to the point where she then disclosed to her cousin Kayla, and her friend Mitchell, followed by her letter to Mitchell’s mother. That sequential evidence leads me to conclude that these complaints were anything but a matter of recent fabrication and/or without substance, as urged by the accused.
31I accept the evidence of the accused that A. H. accompanied him to events such as his attendances at the fire hall and the garage. The fact that she did so, in my view does not, in and of itself, suggest that there could not be substance to the allegations that her stepfather touched her inappropriately. She was but a teenager and he a father figure and a person of authority to her. I have no evidence of what a teenager in these circumstances would or would not have done. I can simply state that based on the power imbalance between these two, I do not find it unusual that she would have declined to further accompany the accused as she had in the past.
32I will now touch upon several aspects of the evidence which are of particular assistance to me. I do so in no particular order:
a) The accused came into his own bedroom when the complainant then happened to lie on her mother’s bed. He approached her, placed her legs around his waist and made a humping motion. She told him to stop and to get away from her. He said “Your mom seems to like it.”. That is said to have happened about a month before her disclosure to the police. I find this to be an odd and curious set of circumstances she described, particularly the comment of the accused that “Your mom seems to like it”. I am driven to no other conclusion than that it must have occurred.
b) The repeated comment by the accused to A. H. that he can take certain liberties with her as she is not his biological daughter.
c) His attempt to impart on her a kiss with his open mouth, followed by his comment that somebody had to teach her how to kiss and that she did not have to peck him like a chicken.
d) The evidence of the complainant’s “grammy” that the accused and A. H. were wrestling in the next room. She overheard A. H.’s comment “I’m going to tell” and the accused’s response “Who is going to believe you?” That comment by the accused, in my view, cannot and did not refer to an innocent consequence of the wrestling activity.
33The evidence advanced by the accused and his submissions do not raise with me a reasonable doubt. Accordingly I find the accused guilty on both counts in the indictment.
Tausendfreund, J
Released: April 27, 2016
CITATION: R. v. I.P.W., 2016 ONSC 1558
COURT FILE NO.: CR-15-0013-00
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
I.P.W.
REASONS FOR JUDGMENT
TAUSENDFREUND, J
Released: April 27, 2016