ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. B.F., 2016 ONSC 2840
COURT FILE NO.: Crim(P) 1169/15
DATE: 2016 04 29
B E T W E E N:
HER MAJESTY THE QUEEN
C. Pressman, for the Crown
- and -
B. F.
M. D. Cunningham, for the Accused
HEARD: March 21, 22, 23, 24 and 25, 2016
REASONS FOR JUDGMENT
Justice Thomas A. Bielby
INTRODUCTION
[1] B. F. currently stands charged:
Count 3
That he, within a period between January 1, 1980 and January 3, 1983, at the City of Mississauga in the Central West Region, did indecently assault T. S., a female, contrary to section 149 of the Criminal Code of Canada.
Count 4
That he, within a period of four years last past and ending on or about the 31st day of December, 1983, at the City of Mississauga in the Central West Region, did commit an act of gross indecency with T. S., with a part of his body, contrary to section 157 of the Criminal Code of Canada.
Count 6
That he, within a period of one year last past and ending on or about the 31st day of December, 1979, at the City of Mississauga in the Central West Region, did indecently assault T. W., a female, contrary to section 149 of the Criminal Code of Canada.
Count 7
That he, within a period of one year last past and ending on or about the 31st day of December, 1979, at the City of Mississauga in the Central West Region, did commit an act of gross indecency with T. W., to wit: with a part of his body, contrary to section 157 of the Criminal Code of Canada.
[2] Counts 1 and 2 of the Indictment were withdrawn before the commencement of the trial. Count 5 was dismissed, with the acquiescence of the Crown, on an application for a directed verdict, after the completion of the Crown’s evidence.
[3] The complainants/victims are first cousins to each other and the accused is their maternal uncle.
[4] As apparent in the indictment, the charges are historical in nature, alleged to have occurred when the complainants were young children.
JURISDICTION
[5] The first issue that needs to be addressed is whether or not this court has jurisdiction to try this matter. There is a question of whether or not the accused was 18 years of age or older when the offences occurred. This was an issue raised by defence counsel both in submissions and in the tone and direction of her questions on cross-examination.
[6] The accused was born on August 24, 1961. The complainant, T. W. was born on May 20, 1970, and the complainant T. S. was born February 21, 1974.
[7] For this court to have jurisdiction to hear this matter, the offences would have had to occur on or after August 24, 1979, the date the accused turned 18 years of age.
FACTS
Complainant/Witness T. W.
[8] T. W. currently resides in the province of Alberta where she had been for the last four years. Before that she resided in Keswick, Ontario.
[9] T. W. has two siblings, a brother, M. C. and a sister, M. S.
[10] The complainant remembers, as a child, going to her grandmother’s, where the accused also resided, and where the adults would play cards. At one point in time her grandparents lived in a townhouse in Peel Region.
[11] The children were left to themselves. The complainant testified that she would play or colour to amuse herself and at times she would interact with the accused.
[12] It was in the accused’s bedroom where an incident of sexual impropriety occurred. T. W. testified that she was in the accused’s bedroom when he walked into his room and told her to, “get ready”. She took off her clothes and got on the bed and spread her legs. The accused also undressed and got on the bed and penetrated T. W.’s vagina with his finger and his tongue.
[13] T. W. testified that when he was finished the accused told her to use her fingers to stretch herself because next time he would use his penis.
[14] The accused encouraged her to touch his penis and asked her to suck it but T. W. does not remember if she did. She does remember touching the accused’s penis and rubbing it.
[15] T. W. testified that when the accused was touching her he was “pumping” himself on the mattress. She does not know if he ejaculated. Once he was finished the accused got dressed and left the room.
[16] T. W. testified that this incident happened in the middle of the day and she could not remember if the bedroom door was open or shut.
[17] This complainant testified that in 1979 her grandparents and the accused left to reside in Nova Scotia and that this incident occurred just before they left. She testified that she would have been about nine years of age. The exact date the accused and his parents (T. W.’s grandparents) moved to Nova Scotia was not established.
[18] T. W. testified that she could only recall this one incident however she testified that it must have happened before, otherwise how would she know what to do when told to, “get ready”?
[19] In regards to a potential second incident, T. W. was standing by the window, in the accused’s bedroom and when the accused entered the room he told her to, “get ready”. On this occasion however, T. W. said, no. She testified that she told him she would tell her parents.
[20] T. W. testified that the accused then backed away and accused her of, wanting it, suggesting she initiated the behaviour by coming upstairs to his room. He implied or said it was all her fault. No actual sexual impropriety took place on this occasion.
[21] T. W., as a child, did not report either incident to anyone.
[22] On cross-examination T. W. agreed that in her examination in chief, she testified that she was older than she originally thought when the offences occurred. Initially, she told the police that she was four or five years of age when the offences occurred, which would suggest the offences occurred in 1974 or 1975. On cross-examination she conceded that it was possible that the offences occurred when she was four or five years of age.
[23] In regards as to how she thought of the accused, T. W. testified that she thought of him as a big brother. She agreed she told police she thought that the accused was 13 or 14 years of age when the incidents occurred.
[24] She confirmed her evidence from the preliminary hearing and her trial testimony that the offences occurred in 1979 however when it was suggested the offences occurred before 1979, T. W. conceded it was possible.
[25] T. W. testified that not much time passed between the two incidents.
[26] T. W. was asked by defence counsel, after discussing some details of the alleged incident, “You don’t recall when these assaults took place do you? T. W. responded, “Correct”.
[27] T. W. was cross-examined in regards to a number of differences between her trial testimony and the evidence she provided during the preliminary hearing and in regards to the statement she gave to the police. She on many occasions agreed that she provided much more detail at trial than she did on these earlier occasions. While she agreed the passage of time affects the ability to remember detail, she testified that she could now provide more detail because she had been in therapy for the last seven months and as a result, the memories were dragged out.
Complainant/Witness T. S.
[28] This complainant is one of three children and she is a first cousin of T. W.
[29] When she was a child the family lived in a townhouse on Havenwood Street in Mississauga. At one point the accused came to live with T. S. and her family. The accused’s bedroom was in the basement.
[30] There were three bedrooms on the second floor, with T. S. sharing one with her sister and her brother using another.
[31] T. S. testified that she was about five years of age when the accused, who was her uncle, came to live with her and her family and that they moved from the townhouse when she was in grade two and when she was six or seven years of age. She was unable to say how long the accused lived with them.
[32] T. S. testified that the accused would often babysit her and her siblings after he came to live with her family.
[33] T. S. testified, in her examination in chief, that the accused, while babysitting, molested her on one occasion when she was six or seven years old (1980 or 1981). The incident occurred in the bathroom on the main floor. She could not recall who entered the bathroom first or what was said when they were first in the bathroom.
[34] T. S. testified that at the time she was wearing shorts and underwear. The accused put his hand up one of the legs of her shorts and touched her vagina. She testified that the touch was not skin on skin as the accused’s hand was over her underwear. There was no digital penetration.
[35] The accused then took T. S.’s hand and placed it on his erect penis which he had exposed. He then guided her hand in a stoking motion which she described as, like masturbating.
[36] T. S. testified that she could not say how long this incident continued. It ended when they heard an adult enter the townhouse. At that point the accused pushed her out of the bathroom and T. S. went upstairs to her room, crying.
[37] T. S. did not know if the accused ejaculated.
[38] T. S., as a child, told no one of what had happened. She was scared.
[39] The accused continued to live in the townhouse but T. S. testified that he moved out within a couple of weeks of the incident. One afternoon T. S. was walking home from school and an ambulance was at the townhouse. The accused had tried to commit suicide and was being taken to the hospital. The accused never returned to live with T. S. and her family.
[40] T. S. could not recall exactly how old the accused was when the incident of sexual abuse occurred but did say in her examination in chief that she recalled the accused having facial hair and she testified that she thought he was about 20 years old at the time.
[41] On cross-examination T. S. agreed that she initially told the police that she was only four or five years old when the incident occurred so the incident could have occurred in 1978 or 1979.
[42] T. S. agreed that because she was wearing shorts the incident could have happened in the spring or summer of 1978 or 1979.
[43] She agreed with the suggestion that it was possible the ambulance attended at her home up to a year before they moved from the townhouse.
[44] T. S. agreed that at the time of the incident, her older sister could have been as young as eight years old and her brother, as young as six years old.
[45] T. S. testified that she and her family likely moved to Brampton in 1980 or 1981 and that she turned seven in February, 1981.
[46] On re-examination T. S. reiterated that she thought she was four or five when the incident occurred. She was given an opportunity to refresh her memory by reading a portion of her preliminary hearing transcript, but she still could not remember how old she was at the time of the incident.
CREDIBILITY AND RELIABILITY
[47] I find that the two complainants were credible. They answered all of the questions in a forthright manner and did not attempt to exaggerate or manipulate their evidence. They readily admitted if they were uncertain on any given set of facts. They were not caught in any major misrepresentations that would adversely impact on their credibility.
[48] While they provided some more detail at the trial than they did at earlier times, their explanation of having to relive the events, which resulted in the recovery of details, was credible.
[49] The witnesses were being asked to recall details of events that happened years ago when they were relatively young children. They were recalling childhood memories.
[50] There were however, reliability issues which were readily admitted by the complainants. They could not be sure as to when the incidents occurred in relation to their ages and the age of the accused.
ANALYSIS AND THE LAW
[51] For this court to have jurisdiction to adjudicate these charges the accused must have been at least 18 years of age when the offences occurred. Accordingly the offences would have had to occur on or after August 24, 1979.
[52] On that date, T. W. would have been nine years of age and T. S., five years of age.
[53] In his submissions the Crown attorney, at least in regards to the evidence of T. S., stated that if the court cannot conclude the accused was 18 years of age when the incidents occurred, the court cannot convict him. I found it necessary to find some authority on this point.
[54] R. v. K. (P.A.) 1992 7313 (NL SC), 1992 CarswellNfld 125, is a decision of Green J. of the Newfoundland Supreme Court. In this case, the accused was charged with two counts of sexual assault and would have been either 17 or 18 years of age when the offences were alleged to have occurred.
[55] If the accused was under the age of 18 years then the Provincial Court would have had exclusive jurisdiction pursuant to section 5.1 of the Young Offenders Act (now section 14(1) of the Youth Criminal Justice Act).
[56] At paragraph 17 Green J. noted that it is the time of the commencement of the offence that is the pertinent date. From paragraph 18 I quote,
“The difficulty presented by this case is that the evidence as to the dates when the incident occurred is not clear, and in fact is inconsistent and conflicting. All that can be said with any degree of certainty… I would find it difficult, on the evidence, to say with any degree of certainty that the incidents occurred after the accused’s 18th birthday, or to say that the incident’s occurred before the accused’s birthday.”
[57] In regards to the burden of proof, from paragraph 31 I quote,
“Although A. (E.A.). (a reference to R. v. A. (E.A.) [1987] O.J. No. 674 (ONCA), was not expressly decided on the basis of the incidence of the burden of proof on the jurisdictional issue involving age of the accused, the policy approach enunciated by the Ontario Court of Appeal had the same effect as placing the legal burden of proof of jurisdiction upon the Crown where the jurisdiction of adult court is challenged on the basis that the accused is a young person.”
[58] Starting at paragraph 36, I quote,
“Where, therefore, time is crucial to the defence, as it would be where the defence is challenging the jurisdiction of this court to try the accused, this would be one more reason for requiring the Crown to prove the time of the offence in relation to the accused’s jurisdiction-giving age beyond a reasonable doubt.”
[59] Paragraphs 37 and 38 stand for the principle that once the issue is raised by the defence, the burden is on the Crown to prove beyond a reasonable doubt that the accused was at least 18 years of age when the offences occurred.
[60] Green J. concluded that the Crown had not established the court’s jurisdiction to try the accused and noted that it would be inappropriate to comment on the evidence with respect to the substantive offences.
[61] R. v. Male 2013 MBPC 12, is a decision of Heinrichs J. of the Manitoba Provincial Court. In that matter the accused faced a trial on 15 offences alleged to have occurred between April 9, 2011, and May 24, 2011.
[62] The issue was whether or not the accused was a youth or an adult during this time. At paragraphs 7 and 8 the judge said that the question as to age is to be answered by employing a two-step process.
The accused bears an evidentiary burden, to show there is sufficient evidence to raise the issue.
The Crown then has the burden of proofing jurisdiction.
[63] The burden is proof beyond a reasonable doubt.
[64] Heinrichs J. relied on the above referenced authority, R. v. K. (P.A.).
[65] In my considerations of this issue I am relying and adopting these authorities as the correct way to approach the issue.
[66] As noted, T. W. initially testified that the incident occurred in 1979 prior to her grandparents moving to Nova Scotia, which is also the year the accused turned 18 years of age.
[67] The evidence was unclear as to the time of year when the incident is alleged to have occurred but T. W. testified that had the weather been nice she would have likely been playing outside which suggests the incident occurred before the warm weather in the spring or summer of 1979.
[68] As noted, however, when giving her statement to the police, T. W. said she was four or five years of age when the incident occurred and the accused 13 or 14 years old and T. W. agreed with the suggestion of defence counsel that she could not recall when the incidents took place.
[69] On this evidence I cannot be sure that the incident in the accused’s bedroom took place on or after the accused turned 18 years of age. Even if I accepted the evidence that the incident occurred in 1979, prior to the accused and T. W.’s grandparents leaving for Nova Scotia, there would have to be evidence that the offence occurred after August 24th of 1979.
[70] In relation to the complainant T. W., the Crown has not proven beyond a reasonable doubt that the accused was at least 18 years old when the incident occurred.
[71] In regards to the complainant T. S., she would have been five years of age when the accused turned 18 years old. She testified that she believed she was 5-ish when the accused came to live with her family.
[72] As noted, in her examination in chief T. S. testified that she thought the accused was about 20 years of age when the incidents occurred and that she recalled that he had facial hair but during cross-examination she conceded she told the police initially that she was four or five years old when the incident occurred. She agreed the offences could have occurred in the spring/summer of 1978 or 1979.
[73] Even on re-examination T. S., when given a chance to refresh her memory, stated she thought she was four or five years old but then concluded she really did not know how old she was when the incident occurred.
[74] There is a reasonable doubt as to whether the accused was 18 years of age or older when the alleged offences took place in regards to T. S.
[75] On this evidence, I cannot be certain in regards to both complainants when the offences occurred and more importantly that they occurred on or after August 24, 1979. If neither complainant can be sure as to when the incidents occurred and their ages when they did occur, then neither can I. The inability to be sure amounts to reasonable doubt. The complainants did not tell anyone of these incidents until years later so no other witness can assist us in regards to establishing a timeline.
[76] The Crown has not proven beyond a reasonable doubt that the offences occurred when the accused was at least 18 years of age.
RULING
[77] On the basis of my finding on the facts and on the law, this court does not have the jurisdiction to try the accused for the offences for which he is charged because it has not been established, beyond a reasonable doubt, that the accused was an adult and not a young offender when the offences occurred.
[78] For that reason I will not address or consider the culpability of the accused and the other legal issues that arose from this trial. The charges will be dismissed.
Bielby J.
Released: April 29, 2016
CITATION: R. v. B.F., 2016 ONSC 2840
COURT FILE NO.: Crim(P) 1169/15
DATE: 2016 04 29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
B. F.
REASONS FOR JUDGMENT
Bielby J.
Released: April 29, 2016