R. v J. F.-C., 2016 ONSC 4011

Court File and Parties

COURT FILE NO.: CR-14-114 DATE: 2016/07/29 ONTARIO SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE (WITNESSES OR COMPLAINANT) IS PROHIBITED FROM PUBLICATION BY ANY METHOD PURSUANT TO AN ORDER UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

BETWEEN:

HER MAJESTY THE QUEEN – and – J. F.-C.

Counsel: Matthew Collins, for the Crown Norman Lee, Counsel for the Defendant

HEARD: May 16 and May 18-20, 2016

Reasons for Judgment

Leroy, J.

Introduction

1In the summer of 2008 when J. F-C was twenty and the complainant, M. P. was twelve, J. F.-C. moved into the P’s home. The allegations are that between May 1, 2008 and September 30, 2008, J. F.-C. committed sexual offences against M. P. There are twelve counts on the Indictment, including sexual assault – s. 271; sexual exploitation – s. 151(a); invitation – s. 152; and exposure for a sexual purpose – s. 173(2).

2The only direct evidence of a sexual relationship between M.P. and J.F.-C. came from M.P. No witness observed overt sexual overture. J.F.-C. chose to not testify.

Complainant’s Narrative

3The household was comprised of the complainant, her parents and her older brother, M.P. then age nineteen. M.P. and J. F.-C. were good friends. There were 4 bedrooms, three on the second floor and one in the basement. The parents occupied one bedroom on the second floor. M. P. testified that M.P. (brother) and J. F.-C. shared an upstairs room but then M.P. (brother) moved to the basement bedroom. M. P. occupied the third room on the second floor. The rooms occupied by the protagonists were contiguous. The bedroom occupied by the senior P. was down the hallway.

4M.P. testified to the following narrative. J.F.-C. was a passing acquaintance before he moved into the house. She knew him as a friend of her brother. She said he was not a friend of hers at the time.

5In comparison to her brother, J.F.-C. treated her kindly, paid attention to her and made her feel important. Through the last part of the school year, she and J.F.-C. were home alone for two hours daily after school before her brother or parents arrived from their daily activities.

6J. F.-C. moved into the home in late May early June and the school year had not ended. She developed a crush on J.F.-C. and disclosed it to him after he had been in the home about a month. She does not recall if school was finished for the year when she revealed this to him.

7The two were watching Spiderman in the basement when she disclosed the crush. She said he laughed and disclosed he dreamed they got married. That was not the response she expected. It was not inconsistent with their Facebook dialogue.

8A week later when they were alone in the kitchen and her brother and two friends were in the next room playing video-games, J.F.-C. said he wanted his dream to come true and they kissed. M.P. was an eager participant. She described a progression to passionate touching and groping. When they were alone in the home this activity could be anywhere in the home and when others were in the home they made out in his room.

9M.P. observed J.F.-C. ’s penis within the next week. They were alone in the basement watching television. He was wearing red basketball shorts and she said he put her hand on his penis for five seconds and he developed an erection. One or the other lifted his shorts to expose the erection and they thought that laughable.

10Over the next couple of weeks their intimacy progressed to masturbation. She was a novice and he offered instruction. They were naked. She observed his penis and ejaculation. Masturbation did not engender a pleasurable response.

11By this time she thought they were in a relationship. She communicated an ultimatum – she was unprepared to engage sexually unless he committed to a relationship. He reassured her that this is what couples do.

12They cuddled every morning. She set her alarm so she could go to his room for a morning session that allowed time for return to her own room before her parents arose.

13Within another week J.F.-C. touched her breasts and vagina and penetrated digitally. J.F.-C. reassured her this is how we make each other happy – this is what girl and boy friends do. The penetration hurt, she derived no pleasure and after twenty minutes he stopped and left.

14There was a progression to hand jobs times four or five occurrences and then fellatio. This transpired in his room after ten p.m. when her parents were asleep. J.F.-C. asked her to perform for him and instructed her on technique. She fellated J.F.-C. at least ten times, J.F.-C. ejaculated every time, once in her mouth but mostly on her face and chest.

15When he ejaculated in her mouth the taste was terrible and she scooted downstairs to the kitchen to chug juice and spit in the sink. J.F.-C. assured her he was proud of her. On an occasion when he ejaculated on her face or chest she showered.

16M.P. emphasized that her parents are heavy sleepers.

17They did not display affection in the presence of her family. She attributes this restraint to J.F.-C. ’s instruction in the context of the awkwardness inherent in dating a best friend’s sister. Ms. P. disclosed this progression to her best friend, C.W. within a week of each incident. She said C.W. would confirm the extent of their affectionate cuddling and touching when her parents were away from the home.

18M. P. disclosed a harmless kiss together with an indication of her feelings toward J.F.-C. to her mother. She is unclear on the date of disclosure. Mr. and Mrs. P. evicted J.F.-C. from their home at the beginning of September 2008. Her mother broke down when Mrs. P., M.P. and J.F.-C. were watching a sad part in a movie and was inconsolable. That is when Mrs. P. reported to Mr. P. Mrs. P. does not have the same recall.

19M.P. was distressed that the person she loved was leaving. She professes little recall of the events of the eviction or the two-page letter she wrote to J.F.-C. at the time.

20M.P. never planned on going to the police. She blamed herself and considered the extent of their relationship to be their secret. They discussed the consequences of disclosure and she understood from J.F.-C. that her reputation was on the line as much as his and that disclosure would impact on M.P. (brother). Then, in June 2014, M.P. heard that J.F.-C. had disclosed details to someone and contextualized it as consensual and this context made her angry. She saw J.F.-C. in a grocery store with another woman.

Legal Principles

21The real issue in this case is whether the events alleged to form the basis of the crimes charged ever took place. It requires a consideration of all the evidence.

22The essential element of the offences charged are:

1. M.P. was under the age of fourteen years at the material time;
2. That J F.-C. touched M.P. for a sexual purpose;
3. That J.F.-C. invited M.P. to touch herself and his penis for sexual purpose;
4. That J.F.-C. intentionally applied force to M.P. in circumstances of a sexual nature;
5. That J.F.-C. exposed his penis to M.P. for sexual purpose.

23The standard of proof beyond a reasonable doubt is inextricably intertwined with the presumption of innocence, the basic premise which is fundamental to all criminal trials.

24J.F.-C. is presumed to be innocent of all counts unless and until Crown counsel proves his guilt beyond reasonable doubt. This presumption stays with him throughout the trial. The burden of proof is always on the Crown regardless of what evidence defence provides, fails to provide or chooses not to provide. J.F.-C. does not have to prove anything. I have to determine whether Crown evidence in the context of all the evidence has proved each element of each offence charged beyond a reasonable doubt.

25A reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. A reasonable doubt is a doubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. While more is required than proof that the accused is probably guilty, a reasonable doubt does not involve proof to an absolute certainty, R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.).

Evidence of Adults testifying about events alleged during their childhood

26There are no hard and fast rules as to when a witness' evidence should be assessed by reference to "adult" or "child" standards. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

27Since children may experience the world differently from adults, a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration.

28That said, the evidence of children is subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child.

29Inconsistencies on minor matters of detail are normal and to be expected and generally do not reflect badly in an assessment of memory and narration. Where inconsistencies involve material matters about which an honest witness is unlikely to be mistaken, it can demonstrate carelessness with the truth and raise the issue of whether or not the court can rely on the testimony of that witness.

30I can believe some, none or all of a witness’ testimony.

31The assessment of evidence also includes consideration of the inherent reasonableness of testimony, internal consistency and consistency with other evidence and availability of other sources of information. Although corroboration is not required in relation to these charges its presence can be very persuasive.

The Evidence – Credibility/Reliability

32The facts are that between May 1, 2008 and September 1, 2008, M.P. was twelve years of age and J.F.-C. was twenty – Exhibits 1 and 2.

33As always, there are inconsistencies, contradictions and credibility issues with the narrative.

34The defence in submissions raised a number of inconsistencies submitted to be in the carelessness with the truth range.

35Firstly, M.P.’s context for the genesis of the infatuation did not prove out.

36M.P. testified that before he moved into the house she knew J.F.-C. only in passing. She said she had seen him once or twice, that he was an acquaintance and not a friend. She said he was a friend of her brother M.P. and had been seeing a girl named B. who had been staying in the P’s home.

37The Facebook messages between them dated back to January 20, 2008 and reveal more than passing acquaintance. By the end of January and into February, they were flirty. There were other communication mediums as well. The entry at February 2 11:26 p.m. relates to a disagreement between them not evidenced in the Facebook string. M.P. did not censor her attraction for J.F.-C. in the ensuing entries.

38M.P. said their Facebook communications terminated after the eviction. The last communication over Facebook was on November 11, 2008 – Exhibit #3.

39Secondly, one aspect of the context for the time alone evolution of their affection was tied to the time of year J.F.-C. moved into the P’s residence. M.P. says that J.F.-C. moved into the residence in early June 2008. He was not attending school. The school year was not over and that allowed a couple of hours daily at the end of her school day to be alone together. The evidence is unclear as to whether M.P. (brother) was expelled for the last semester of that school year for truancy issues. The evidence is clear that M.P. (brother) and J.F.-C. were close friends who spent time together – whether playing video games or something else. C.W., who is best friends with M.P. and in attendance in the P.’s home daily, recalled that J.F.-C. moved in after the end of the school year. Mrs. P. did not recall when J.F.-C. moved in nor was she certain about whether M.P. (brother) was in school through June 2008.

40Thirdly, there are viability issues in her narration of the place and time where and when they were said to be most sexually active.

41M.P. testified that although most of the sexual activity between them occurred after 10:00 p.m. when everyone else was asleep, there were occasions when she would go to J. F.-C.’s room early morning and return to her own bed at the sound of her alarm clock set to sound in time for her to dress and return to her own bed without detection.

42Mrs. P. candidly denied that Ms. Peters ever used an alarm clock and that if there was another upstairs alarm, she would have heard it and did not.

43M.P. recounted the time when J.F.-C. ejaculated in her mouth and how she ran downstairs to chug juice. She emphasized that her parents were heavy sleepers. Her mother, Mrs. P. advised that her husband D.P. is afflicted with sleep-apnea and he snored loudly before they obtained the CPAP machine ( Continuous Positive Airflow Pressure). Mrs. P. described herself as a light sleeper and agreed that if someone was showering in the night or walking the halls or stairs she would awaken. She did not awaken to the sound of M.P. rushing to the kitchen. If she had, she would have investigated. She recalled hearing showers in the night but did not recall ever inquiring about details from M.P.

44Mrs. P. and M.P. conceded that door hinges and floors squeak and creak with movement and traffic.

45Fourthly, defence argues that C.W.’s evidence revealed what might be prior inconsistent disclosure.

46M.P. said that she made full disclosure to C.W. as it happened. M.P. said that most incidents transpired in J.F.-C.’s bedroom. C.W. recalls hearing disclosures but denied hearing the full details. She said that M.P.’s demeanor was “nonchalant” when she revealed these matters. She said that she had heard about three incidents of fellatio and one incident of intimate caress of M.P. by J.F.-C. . C.W. recalls that M.P. told her all this happened in the basement bedroom.

47Fifthly, M.P.’s recall of their overt display of affection is different from C.W.’s recall of what she observed. M.P. said that C.W. observed them cuddling, touching and making out. C.W. attended the P.’s home daily – she described herself as a daytime resident. C.W. recalls that the two maintained close proximity, that J.F.-C. tended to touch M.P.s’ back with his hand and that there seemed to be mutual infatuation. She observed M.P. to flirt with J.F.-C. She did not hear them talk of love and did not observe cuddling or making out.

48Sixthly, M.P. said that as the summer progressed, she and J. F-C. often engaged in loud verbal argument. Mrs. P. did not notice any of that. She considered the pleasant difference between her daughter’s argumentative relationship with M.P. (brother) and the cordial relationship between M.P. and J.F.-C.

49Seventhly, Mrs. P. recalls that J.F.-C. professed to not know what the parent P. were concerned about when D.P. demanded he leave. She said he appeared surprised.

Discussion and Conclusion

50This narrative is replete with the influences of immaturity and naivety. The complainant and her best friend were twelve and thirteen years and inherently immature, curious and impulsive. The accused’s emotional immaturity at the time is on full display in the Facebook exchanges before and after residence in the P.s’ home.

51I do not doubt that M.P. and J.F.-C. developed strong feelings for each other, manifested in the emails before and after, by the handwritten letter, as observed by C.W. through the period of the stay and by Mrs. P.’s observations of her daughter when J.F.-C was evicted. M. P. was devastated when her life partner had to leave the home and the relationship had to terminate. J.F.-C. expressed his umbrage on learning of his replacement in September /October 2008. The exchange on September 30, 2008 at 3:36 p.m. and 11:53 p.m. reference a more than just-friends relationship. Their dialogue through the eviction aftermath reveals two emotionally injured people.

52J.F.-C. expected a sexual context to a relationship. He was sexually experienced notwithstanding the arrested emotional maturity. I infer that if J. F-C.’s former girlfriend was sleeping with three other fellows when she was dating him, he was experiencing sexual relations with her as well.

53M.P. was impressionable. She was smitten with J.F.-C. She was twelve going on thirteen. She said she trusted him.

54M.P. denied being a friend of J.F.-C. when he moved in. That was not true. She was half way to full blown infatuation by the time he moved in.

55Where there is a will there is a way. The separation between their bedroom doorways was the width of a wall.

56As smitten protagonists pursuing an intimate relationship, they would get where they wanted to be. They would seek out quiet private intimacy in the face of obstacles, including the presence in the home of her best friend as daytime occupant, her brother who occupied much of J.F.-C.’s time and her parents. M.P.’s at-will use of the internet after 10:00 p.m. is a fact previously unknown to her parents.

57I accept as fact they were infatuated during the summer of 2008. The specifics about how they got there are not critical. The time of year when J.F.-C. moved in is unclear. The significance to the narrative is M.P.’s assertion that they had two hours of quiet private respite every school day to evolve their mutual affections. That is not a time and place memory issue. It is how-they-got-there evidence.

58M.P. told different stories to different people. At trial, M.P. iterated that most of their sexual activity occurred within feet of her parents who slept down the hall. That she reported the basement bedroom as the scene of most of their sexual activity is a where issue. That she reported a light kiss to her mother in the context of a heterosexual relationship is unsurprising. She knew enough to withhold full particulars from her mother. She had to be discreet or risk Apocalypse.

59M.P. was fully engaged in this relationship.

60I would not expect C.W. to have detailed recall of her conversations with M.P. They were in daily contact and talked about everything in their lives. That C.W. does not recall the same disclosures as M. P. asserts is not all that persuasive of an inconsistent disclosure. That C.W. does not have the same recollections in relation to overt display of affection is unsurprising. Although they were close friends, I expect that M.P. could not reliably recount the details of C.W.’s activities that summer.

61That her mother cannot corroborate her daughter’s narrative at times while she slept is neutral. Mrs. P. iterated that she is a light sleeper, easily disturbed in her sleep. That does not match up with the nighttime engagement M. P. reported to the Court or with the rapid scoot to the kitchen to cleanse her mouth. That said, the fact of being a light sleeper does not mean only that the complainant’s reporting did not happen.

62There is the issue of the alarm. It is a case of a person with intent to deceive managing her affairs to avoid detection. That she was a step ahead of her parents is unsurprising.

63The complainant thought she was in love with the accused. She was a sexual neophyte. She had only finished grade 7 at the time. Her perspective on a relationship was that of a child. J.F.-C. thought he was in love with the complainant. He was emotionally immature. They flirted and were overtly demonstrative in C.W.’s presence. He was sexually experienced. There was opportunity for surreptitious sexual relations.

64I accept that the complainant would be compliant in response to J.F.-C.’s pursuit of sexual gratification. The evidence about how J.F.-C. contextualized sexual activity as something married/couples do for each other and her reporting about his instructions regarding secrecy resonates.

65In the face of the corroborative evidence of a sexual relationship between them, Mrs. P.’s impression regarding J.F.-C’s look of surprise or lack of understanding when he was confronted by the complainant’s parents in early September takes on minimal evidentiary significance. It is no more than an impression. She was understandably upset. I am not convinced her impression is reliable. If it was, in such a predicament there is no generic response other than discretion is the better part of valour. It was a prudent response to avoid serious confrontation. No more than that.

66I accept that they engaged sexually that summer. There is embellishment. I would be surprised if everything of substance the complainant reported is reliable and accurate. Observation and memory are fickle no matter how sincere or articulate the witness presents. After years of rumination, facts evolve and solidify in repetition.

67I find there were incidents of sexual engagement between them that summer though not to the full extent reported resulting in the following findings of fact:

1. M.P. was twelve years of age at the time;
2. That J.F.-C. touched M.P.’ body – back, breasts and vaginal area for sexual purpose;
3. That J.F.-C. invited M. P. to touch his lips, penis and her vaginal are for sexual purpose;
4. J.F.-C. knew M.P. did not/could not consent to sexual touching;
5. J.F.-Cote exposed his penis to M. P. for sexual purpose.

68I find J.F.-C. guilty of sexual assault, sexual exploitation, sexual invitation and sexual exposure. He kissed M.P., he touched her breast and vagina, he counselled her to touch his penis with hands and mouth and to touch herself and he exposed his penis to the complainant all for a sexual purpose.

69Accordingly, convictions will be registered on counts 2, 4, 5, 6, 7, and 12.