R v. VT, 2016 ONSC 374

R v. VT, 2016 ONSC 374

COURT FILE NO.: 13-30000498-0000

DATE: 20160122

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

VT

Defendant

Susan Lee, for the Crown

Michael Burokas, for the Defendant

HEARD: December 14-15, 2015

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.

E.M. Morgan J.

1This case poses a simple, but important question. While visiting and drinking with his friend and neighbor on Boxing Day 2010, the Defendant gave his friend’s 12-year old daughter an unwanted kiss on the cheek. Was it a sexual assault?

I. The day’s events

2There is little discrepancy among the relevant family members in relating the events leading up to the incident in question.

3The Defendant and the Complainant and family were next door neighbours in Scarborough, Ontario.

4The Complainant, who is currently 16 years old, testified that she had spent much of the morning of December 26, 2010 shopping at the Scarborough Town Centre with her parents and sister. She had stayed up late with her family on Christmas Eve and Christmas Day, and so was tired the following morning when they went on the excursion to the mall. The Complainant and her father went home together at about 2:00 or 3:00 in the afternoon, while her mother and sister stayed a little longer to shop before meeting them at home.

5When she got home, the Complainant started watching a movie on television. She stated that her father called the Defendant, who lived next door, to come over and have a drink with him, as they were both off work for the holiday.

6The Complainant knew the Defendant well. She often babysat and played with his two daughters, who were much younger than her. She described herself as an “older sister” to the two young girls, and indicated that she was very fond of them and they of her. She also testified that the Defendant was always friendly, appeared to her to be a good father, and occasionally joined the girls in playing games of peek-a-boo and hide-and-go-seek in the basement of his home. According to the Complainant, the Defendant never kissed her or touched her inappropriately before. She related to him like an “uncle”.

7When the Defendant arrived, he joined the Complainant’s father in the dining room. At that point, the Complainant said that she felt tired, and retired to her own bedroom in the family’s small bungalow. Eventually, she dozed off for a nap on her bed.

8All of this was verified in the testimony of the Complainant’s father and sister. They both indicated that they had spent the time together as a family during the holidays, and that on December 26th they had gone to the mall. The father and sister both indicated that they arrived home sometime in mid-afternoon, with the father and Complainant arriving first and the sister and mother coming sometime later. The father also confirmed that he had invited his neighbor over for a drink.

9According to the father, the neighbours got on quite well together. They occasionally assisted each other in various ways, including giving each other rides when one didn’t have a car and helping out with home renovation advice, etc. In general, the two families were all friends.

10The Complainant’s sister also confirmed that she had gone with her parents and the Complainant to the mall on the morning of December 26, 2010, and that she and her mother had stayed a little longer and met the Complainant and her father at home later in the afternoon. The sister testified that when she got home she headed down to the basement to visit with her grandmother and uncle, who were renting the downstairs area and were living there at the time. She also confirmed that the Defendant’s family and her own were family friends, and recalled an excursion in which the two sets of parents had together taken all of the children to Wild Water Kingdom.

11The Defendant also testified. He indicated that he is 38 years old, has been married since 2004, and has two daughters who were ages 4 and 5 in 2010. He works in a car rental business as customer service representative, and has known the Complainant’s family since moving into the house next door to them in 2007. He confirmed that they are all family friends, and that the Complainant’s father had come over and introduced himself when the Defendant and his family first moved into the neighbourhood.

12The Defendant also confirmed that the Complainant used to play with his daughters in the backyard and sometimes in his basement where they kept their toys. They would sometimes play together up to two to three days a week, and he would often see the Complainant playing at his house when he came home from work. The Defendant also indicated that he occasionally interacted and spoke with the Complainant, but only when she was playing with his children.

13In testimony matching that of the Complainant, the Defendant stated that he occasionally joined the children’s games when the Complainant was visiting, as he enjoyed spending time playing with his daughters. He also confirmed the Complainant’s testimony that he had never hugged or touched the Complainant in any way.

14On Boxing Day 2010, the Defendant spent most of the morning and early afternoon at home with his family. He indicated that he was drinking whiskey in his home by himself when his friend next door called in mid-afternoon and invited him over for a holiday drink. He said that he accepted the invitation and went over to his neighbour’s house and sat with the Complainant’s father in the dining room. They had several beers while sitting at the table together.

II. The incident

15After the Defendant sat for a time drinking several beers with his friend, he indicated that he needed to go to the washroom. The Complainant’s father signaled to him to go down the hallway, and he did so. There were several bedrooms along the hallway, and the washroom was located at one end.

16The Defendant testified that after using the facilities, he exited the washroom and started making his way back to the dining room. As he passed by the Complainant’s room, he noticed her lying on her bed. According to the Defendant, he stopped at her doorway in order to engage her in some way. Precisely what he did to attract her attention, of course, is the subject of controversy. Indeed, in a narration of events that otherwise contains no discrepancies among the witnesses, this one moment in the day is the only matter of controversy. The Complainant, Defendant, and the Complainant’s various family members all agree on everything else.

17As the Complainant related it, she was asleep in her bed and awoke to the Defendant leaning over and kissing her on the cheek. He was also lightly touching her chest, although she testified that the touch was on her collar bone and not her breasts. It was unclear whether this was an intentional caress, or simply a hand grazing her collar while he kissed her cheek. The Complainant acknowledged that she was fully clothed and under the covers at the time of the kiss. The Defendant did not touch her clothing or disturb her bed covers in any way.

18In any case, the Complainant was very perturbed to wake up to find the Defendant in this position. As she put it, “The way it all happened was icky and awful and disgusting.” When asked what made it so awful, she responded without hesitation: “‘Cause I still had saliva from him on my face.”

19As the Defendant related it, he saw the Complainant lying on the bed and, although he was not completely certain, he thought that she was lying there awake. He stopped at her doorway and looked into her bedroom while bracing himself against the door frame. With his feet in the doorway, he then leaned into the room and, as if to startle her in a playful way, exclaimed, “Boo!”

20The Defendant testified that this was a game that he and his daughters and the Complainant often played together. Although he conceded that it was unusual for him to encounter the Complainant not in the company of his own daughters, he thought this would be an amusing thing to say as he passed by her in the bedroom. He indicated that having engaged in this bit of playfulness, he then proceeded down the hall to the dining room where the Complainant’s father was waiting for him to return. He never turned around or paused to see the Complainant’s reaction to his little game.

21The Complainant immediately got up out of bed and, in a state of obvious upset, called her sister on her cell phone. The sister testified that she came up from the basement with her mother trailing closely behind, and that the Complainant was crying and told them that the Defendant had kissed her. All three of them then went into the dining room, told the Complainant’s father what had transpired, and confronted the Defendant. He denied it, and the Complainant’s mother then told him to leave the house.

22The Defendant returned to his own house next door, and a discussion ensued among the Complainant’s family members as to whether they should report the incident to the police. The father indicated that he was in favour of criminal charges, but that his wife and the Complainant were concerned that a criminal report would impact on the Defendant’s relationship with his two daughters. Out of concern for the feelings of the daughters, with whom the Complainant’s family felt very close, they decided not to report the matter to the police.

23A short time later, the Complainant’s parents went next door to tell the Defendant’s wife what happened. The Defendant tried to force the door closed to keep them out, but the Complainant’s mother arranged to speak with the Defendant’s wife the next day and told her about the incident. From that time until now, the families have never socialized or had anything to do with each other.

24About five months later, the Defendant saw the Complainant’s father walking on the driveway outside his home and called him over to speak. The father testified that he thought the Defendant was going to apologize for the incident with his daughter, but instead the Defendant took the opportunity to ask the father for some advice on a renovation he was doing on his basement. The Complainant’s father answered him briefly, and then left.

25As it happens, the Complainant was looking out of the window of her house at the very moment that the Defendant called out to her father. She saw her father approach the Defendant and observed them exchanging some words of conversation, although she could not hear what they said to each other. The Complainant testified that she was upset, as her father had said at the time of the incident on December 26th that he intended to never speak with his friend again. When she saw them speaking in the driveway, she thought her father had breached his promise to her.

26Observing her father’s brief exchange with the Defendant on the driveway coincided with some psychological problems that the Complainant began to experience. She testified that she became very moody and even started intentionally injuring herself. The Crown did not produce any psychiatric expert, and there is no real evidence indicating one way or another whether the Complainant’s subsequent issues were related to the Defendant’s conduct months before. However, her family felt strongly enough that this was the case that they decided at that point to report the Boxing Day incident to the police.

27In October 2011, the Defendant was charged with sexual assault contrary to section 271(1)(a) and touching for a sexual purpose contrary to section 151 of the Criminal Code. The terms of his release on bail required that he reside with his surety in Mississauga. A short time later, he moved his entire family to Mississauga. With the exception of the various appearances at legal proceedings, the Defendant has not seen or been in contact with the Complainant’s family since that time.

III. The burden of proof

28At one level, this case appears to be a credibility contest. The Complainant says the Defendant kissed her on the cheek while she slept; the Defendant says he startled her by saying “Boo!” while she lay in bed.

29That said, the Court of Appeal has been clear that where a Defendant testifies in his own defense, “A verdict of guilt must not be based on a choice between the accused’s evidence and the Crown’s evidence”: R v JW, 2014 ONCA 322, at para 24., quoting R v Vuradin, 2013 SCC 38, [2013] 2 SCR 639, at para 21. As the Supreme Court of Canada put it in R v W(D), 1991 93 (SCC), [1991] 1 SCR 742, at para 10, the trier of fact “need not firmly believe or disbelieve any witness or set of witnesses.”

30As trier of fact, I proceed here in accordance with the instructions that Cory J. in W(D), at para 11, states that a jury would properly have received:

First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

31The evidence, including demeanor evidence, must be considered in its totality: R v Rhayel, 2015 ONCA 377. Accordingly, “mere disbelief of the accused’s exculpatory account or a mere preference in favour of the Complainant’s account does not equate with guilt”: R v L(CO), 2010 ONSC 2755, at para 6. I cannot convict the Defendant if I am “unable to resolve the conflicting evidence and, accordingly, [am] left in a state of reasonable doubt”: R v Challice (1979), 1979 2969 (ON CA), 45 CCC (2d) 546, at para 45 (Ont CA).

32That said, I am convinced that the Complainant is telling the truth. Her expression of distaste at waking up with another person’s saliva on her cheek, and her description of the kiss and of her own disgust, was so genuine and so authentically reflective of teenage language that it is difficult to receive it as anything but the complete truth. Her instantaneous negative reaction was corroborated by her sister, by her father, and by the Defendant himself who did not deny that she confronted him immediately when he returned to the dining room.

33The Complainant would not fabricate or err in her testimony on a matter such as this. She struck me as an honest young woman and a highly credible witness. I am certain that the Defendant kissed her on the cheek.

34The difficult question posed by this case is what to make of a kiss on the cheek. A kiss on the lips would be unambiguously sexual, whereas a kiss on the cheek may or may not be of a sexual nature, and may or may not violate the recipient’s sexual integrity.

35McLachlin CJC explained in R v JA, 2011 SCC 28, [2011] 2 SCR 440, at para 23, that, “A person commits the actus reus [of sexual assault] if he touches another person in a sexual way without her consent.” Thus, “In order to convict…, the Crown was required to prove, beyond a reasonable doubt, that the only rational inference to be drawn from the kiss, which may not have been on the lips, was that it was of a sexual nature”: R v Normand, [2014] OJ No 3115, at para 38. While it is not necessary for the sexual assault or sexual touching offenses to prove that the Defendant subjectively intended to make a sexual advance or that he specifically sought sexual gratification from his act, the touching of the Complainant must be shown to have been “committed in circumstances of a sexual nature when viewed objectively”: R v J.A.B., [2002] OJ No 3755, at para 44.

36Having found that the Complainant was credible in testifying that she awoke to find the Defendant leaning over her bed and kissing her cheek, I also find that the Defendant was not credible in testifying that he stood in the doorway and said “Boo!” Assessing the evidence in its totality, however, everything else that the Defendant said on the witness stand appears to be truthful.

37His lips may have issued a kiss rather than a “Boo!”, but it is conceivable that the kiss represented the same kind of foolishness that the word “Boo!” suggests – i.e. a spontaneous and playful, albeit ill-conceived, way of startling the Complainant. A prank, and not a romantic “kiss by th’ book,” as Juliet puts it: W. Shakespeare, Romeo and Juliet I.v.122.

38The poor joke, if that is how the kiss may be described, was sloppily executed. It misfired. The Defendant’s beer-infused drool was received with disgust rather than with humour.

39That said, the circumstances cast some doubt on whether the kiss was of a sexual nature. The brief encounter on the way from the washroom back to the Complainant’s father waiting to continue drinking in the dining room does not, when viewed objectively, necessarily suggest that the impugned act was committed in sexual circumstances. To reiterate, it was an offensive and demeaning thing to do to the Complainant; but it was not necessarily sexually offensive or sexually demeaning.

40During final submissions, I asked counsel for the Crown if she had any views on whether the kiss on the cheek could constitute simple assault rather than sexual assault or sexual touching. She responded that the Crown would not have prosecuted for simple assault, as a kiss would be de minimis absent any sexual connotations.

41I do not agree with the Crown’s characterization of a non-sexualized but unconsented-to kiss as being necessarily too small for legal redress. However, given the Crown’s position it has made no submissions, and the defense has consequently made no responding submissions, on the elements of the included offense. In the absence of any such input from the parties, I am not prepared to embark on that analysis.

42For present purposes, I will simply express to the Defendant my own sense of revulsion at his thoughtless act. What he did was, to use the Complainant’s apt description, “icky and awful”.

IV. Disposition

43Nevertheless, I have a reasonable doubt as to whether the Defendant acted in what can objectively be considered a sexual manner or kissed the Complainant in a sexual way. I therefore find him not guilty of all charges.

Morgan J.