Her Majesty the Queen v. R.W., 2016 ONSC 5670

CITATION: R. v. W. 2016 ONSC 5670

COURT FILE NO.: JA 15-9

DATE: 2016/09/13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

R.W.

R. Feldstein, Counsel for the Crown

Yves Jubinville, Counsel for the Defendant

HEARD: May 9, 10, 11, 12 and 13th, 2016

BAN OF PUBLICATION PURSUANT TO S. 486.4 (1) AND S. 486.4 (2)

OF THE CRIMINAL CODE OF CANADA

REASONS FOR JUDGMENT

CHARBONNEAU, M. Z.

1Mr. W. is charged in a 20-counts indictment with having engaged in sexual activity prohibited by sections 151, 152, 171 and 271 of the Criminal Code of Canada.

2The accused is alleged to have sexually abused his two children, P.W. and I.W. and S.R. born […], 1983, and Y.R. born […], 1989.

3It is the Crown’s position that the accused initiated the children to various types of sexual activity between themselves in his presence and also with himself while all the children were under the age of 14.

4The sexual activity would have taken place at the accused’s residence in Montreal and in a trailer occupied by the accused at a nudist camp ground known as T.G.B. situated in Vankleek Hill and operated by S.R. and P.R., parents of S. and Y.

5There are 20 counts alleging 5 different offences against each child. In most cases the offences arise in the same factual context either in Vankleek Hill or in Montreal. The offences would have been committed between January 1st, 1995 and December 31st, 1998.

6At the end of the Crown’s case, the defence made a motion for a directed verdict in relation to counts 3, 8 and 20. The Crown agreed there was no evidence supporting these 3 counts and Mr. W. was acquitted of counts 3, 8 and 20.

7Count 3 alleged that Mr. W. touched P.W. for a sexual purpose both in Vankleek Hill and Montreal.

8Count 8 alleged the accused counselled P.W. to touch for a sexual purpose the body of the accused both in Vankleek Hill and in Montreal.

9Count 20 alleged that the accused sexually assaulted P.W. both in Vankleek Hill and Montreal.

10The only direct evidence offered by the Crown was the evidence of S. and Y.. P. and I. did not testify.

11S. testified that he was initiated to sexual activity by the accused. He indicates it would have happened in the early to the mid-1990’s. Although many details of the sexual activity, the frequency and surrounding circumstances are foggy, what he calls the “scenarios of the activity”, are solid in his mind.

12His first memory is of walking into the trailer of the accused (referred to as T-2) at T.G.B. and finding his sister Y., P.W. and I.W. naked with the accused on his bed. The accused was giving the 3 children instructions and engaging them to perform masturbation and oral sex on each other. The children were touching each other and the accused was then saying “try this” and “does it feel good”. This happened again more than once in T-2 and on those occasions he participated with the other children. On those occasions, Y. masturbated him and gave him fellatio while I. did the same to P.. There was no sexual activity between him and I..

13He recalls that in Montreal when visiting P. at the accused’s residence, he walked into the bedroom of the accused and found I. performing oral sex on the accused. The accused said that doing this was o.k. This occurred sometime after the first group activity in T-2.

14He also testified that later in the mid-90’s and up to 1998 that he often went to T-2, mostly at night, and had sexual interactions with the accused. He was between 12 and 15 when this happened. He recalls one occasion when the accused tried to introduce him to anal penetration by using his finger. This did not lead to sexual intercourse. However, on a number of occasions, he and the accused performed oral sex and masturbation on each other. The accused gave him some money from time to time. He used some of the money to buy a Nintendo Gameboy.

15The several encounters stopped when his father sent him to school in Germany at the age of 14 or 15. He turned 14 in August 1997. The nudist camp was only operated in summer.

16Y.R. testified that when she was approximately 5 or 6 years old, she engaged in mutual oral sex with the accused. I. was probably also present at that time. She has no memory of any other details.

17She also indicated witnessing the accused engaging in mutual oral sex with his daughter I. This occurred in his bedroom in Montreal. This occurred 7 or 8 times and on some of those occasions she engaged in mutual oral sex with the accused. All other details including her age at the time are foggy.

18She recalled an occasion later when she was approximately 9 years old. The accused walked with her to the pond situated on T.G.B. premises. He was naked and she was dressed. He tried to undress her but she resisted and ran away. She knew by that time that what the accused wanted to do was wrong.

19Mr. W. testified and denied that he was involved sexually in any way with any of the four children whether in Vankleek or Montreal. He denied that he attempted to undress Y. near the pond. He indicated the children were never more than 5 minutes in T-2 at any given time because there was nothing to do in the trailer and T-2 was much too small. Everything that was said by Y. and S. about sexual interactions between him, them and his children are all lies. At T.G.B. he was never alone. There was always many people around.

20In Montreal he was never alone with children except possibly during week-ends since he worked during the week. In the apartment where he lived there was an open-door policy and anyone could have dropped by to see him at any time. Therefore he would not have the opportunity to do anything wrong with children.

THE LAW

21The Crown must prove all the elements of each count beyond a reasonable doubt. In the analysis of credibility, the presumption of innocence applies at all times. In a situation such as this one where the two complainants testify sexual interaction took place between Mr. W. and the children and Mr. W. denies that sexual interactions took place, the accused can only be found guilty if the trier of fact after considering all of the evidence is convinced beyond a reasonable doubt of the guilt of the accused. It is never enough to find the complainant’s evidence more credible than the evidence of the accused. Probable guilt is not enough. The trier of fact must be convinced beyond a reasonable doubt of the guilt of the accused.

22Like any other testimony, the testimony of the accused must be weighed and considered in the context of the overall evidence. If after considering all the evidence including the denial of the accused, the trier of fact is sure of the accused guilt, he or she may find the accused guilty because he or she will be convinced of the accused guilt beyond a reasonable doubt.

23The Crown has proceeded on a 20 counts indictment. Each count must be dealt with separately and only the evidence related to that count must be considered to determine the guilt or innocence of the accused.

POSITION OF THE DEFENCE

24The defence’s position is twofold.

25First of all, for some of the counts, the Crown has failed to prove all the elements of the offence charged by that count.

26Secondly, while there are some counts where there is some evidence to prove each constituent element of the offence, the evidence provided was so lacking in credibility and/or reliability that the court must conclude proof has not been made beyond a reasonable doubt.

27In relation to the first position of the defence, Mr. Jubinville submits that the Court cannot consider the evidence of Y. in relation to the sexual assault near the pond, because all the counts refer to a period of January 1, 1995 to December 31, 1998 while Y. testified this happened when she was 9 years old which means the period between Nov. 28, 1998 to November 28, 1999. Counsel submits that time is an essential element which has not been proved beyond a reasonable doubt.

28Counsel also submits that the evidence indicates the series of sexual contact in T-2 occurred when S. was 14 or over and the Crown has failed to prove that S. was under the age of 14 as alleged and required at the time of the offence.

29Counsel further submits that Count No. 10 alleges that the accused counseled S. to touch Y. for a sexual purpose. However there is no evidence of S. ever touching Y. in the presence of the accused.

30Counsel further submits that there is no evidence to support the allegation in Count 12 that the accused counseled R. to touch I. with his mouth and hands.

31Counsel submits that there is no evidence proving the age of Y. and I. in relation to the allegations contained in Counts No. 4, 7 and 18, more specifically that Y. and I. were persons under the age of fourteen.

32In the second prong of his submissions, defence counsel submits that the evidence of Y. is so devoid of details as to be unreliable. Her testimony clearly indicates she has a very uncertain memory of all the incidents she alleges and that she is mostly guessing as to what really happened.

33Her evidence in relation to sex in the trailer where children are present is inconsistent with the testimony of S. on the same incidents. Her evidence cannot form the basis of a conviction.

34Similarly, counsel submits S.’s evidence be rejected. He submits that S.’s complaint against Mr. W. came after he was approached by the police concerning the West photo. At that time he discussed the matter with Y. There is evidence that Y. wanted revenge and wanted to “take R. down”. Moreover he was also being pushed by his common-law spouse to go to police. His common-law spouse was a long-time friend of Y. All of this gave S. a motive to lie about R.

35Finally, S.’s memory is also very weak. His hesitations, pauses and uncertainties as to the time of the offence render his testimony of dubious value.

THE POSITION OF THE CROWN

36The Crown submits that the accused’s evidence is not credible. He spent most of his testimony trying to eliminate all opportunity of being alone with the children. The facts he provided to support that position are in most cases illogical, unreasonable and/or contrived.

37He is contradicted by his good friend P. R. on the fact that T-2 was too small to accommodate the presence of the children.

38As an adult he demonizes S. who was simply 11 to 15 years old when he had interactions with him. This again is not logical. It is simply an attempt to discredit S.’s testimony. Moreover he admits that his son P. was a good friend of S. at that same time.

39The Crown rejects defence counsel’s contention that there is no evidence to prove all the elements in the counts referred by Mr. Jubinville. On the one hand, the time of the offence is not an essential element. Crown counsel relies on section 601 of the Criminal Code. In any event, there is evidence to support the allegations that all the children were under 14 at the relevant time of each offence.

40Crown counsel further submits that although it is true that Y.’s memory is not great, it must be remembered that she was between 5 and 9 at the time. However her evidence of the sexual interactions are clearly described, are not made up. She does not exaggerate and is always very candid about the fact her memory is foggy.

41Crown counsel submits that it is perfectly logical that everything comes out when S. is approached by the police in relation to the West photo and that there is no evidence of collusion. S.’s evidence is consistent and straightforward. There is no reason to reject his evidence.

42P. R. is clearly biased in favour of the accused. On the other hand, S.R.’s evidence is credible and corroborates S.’s evidence in many respects. Moreover, she contradicts the accused’s evidence on certain important aspects of his evidence.

ANALYSIS

43I do not believe Mr. W. nor does his evidence raise a reasonable doubt.

44On the one hand his repeated insistence that he would have had absolutely no opportunity to be involved in sexual contact with the children in T-2 at T.G.B. or at his apartment in Montreal is not logical. The reasons he gives do not hold water. When confronted with the question whether there would be possibilities that he could have been alone with the children more than 5 minutes sometimes he persists in his extremely unrealistic position.

45The reasons he gives for his lack of opportunity in relation to T-2 are:

• The trailer is too small. This is contradicted by S.R. and P.R.. S. is a very credible witness who gave a very balance and fair testimony. P.R. is clearly extremely biased in favour of Mr. W. and yet contradicts him on that point.

• Although he admits that the children did come in and out of the trailer regularly, he indicates they were never alone with him more than 5 minutes. He gives two alternative explanations for the short time span. First, the children had nothing to do in the trailer. When it was suggested the girls could have been in the trailer playing with their dolls or other toys, he offers a second explanation namely that he writes in the trailer and did not like the children in the trailer when he wrote. S.R. indicates that the 4 children could have been in the trailer with the accused during the day and that it was possible a sexual interaction could have occurred at the time. However, she readily admits she did not personally notice anything wrong between Mr. W. and the children;

• The children never slept with him in the trailer because it was too small. Therefore when his wife came to the camp he moved to trailer T-3. The accused is contradicted on the point by his good friend P.R.. S.R. indicated it was important that I. stay close to her father because of her diabetes. As such she did not believe I. would have regularly slept at her home;

• In relation to the diabetes of I., in examination-in-chief Mr. W. indicated he had to watch I. closely. He had to give her an insulin injection 3 times a day. In cross-examination when Crown counsel suggested I. would have been close to him all the time and that would mean sleeping close to him, Mr. W. indicated there was no danger at night and during the day if she was not well she would come to him. Therefore he maintained he did not have to be close to her all the time which contradicts his initial answer on the subject.

46The reasons he gives for the absence of opportunity in his apartment in Montreal are also not logical and contrived:

• he indicates that his wife’s extended family lives on the same floor of the apartment complex where his own apartment is situated. He describes the existence of an open door policy where members of that extended family could come and go in his apartment as they please. When confronted with the fact that he could have locked the door, he indicates he could not do that because his father-in-law could not smoke in his apartment so he used his apartment to smoke;

• he insists he was never alone in the apartment with the children except in the week-end. This would fit with the fact his wife would be present. However, he also admitted his wife worked many weekends;

• he admits that in Montreal all four members of his family slept in the same room. The second bedroom was reserved for visitors.

47Mr. W. was contradicted on other elements of his testimony:

• he insists the child in the photograph shown to the parents was not S. but the oldest T.. Yet both Mr. and Mrs. R. recognized their child S. when shown the photographs by the police;

• he indicates he did not buy S. a Gameboy nor give him money to buy one. S.R. indicates that it was her understanding from speaking with S. that the Gameboy was a gift from the accused. S. testified that he did not recall what he told his parents but that he tried to be secretive about it. S. indicated that he bought the Gameboy with money given to him by Mr. W. in return for sexual favours.

48I also note that Mr. W. got particularly flustered when questioned on his opinion about young children having sex. He admitted on the one hand that he was for alternative life styles and believed that intelligence and capabilities were the determining factors as to when a child could do or not do something. In fact, he indicated he was reading about and discussing the topic of sex and children with various individuals including a certain expert, Dr. Epstein. When repeatedly asked what his opinion was on the subject of children having sex if the child in question was intelligent and capable, he kept repeating that he had not made up his mind yet. Having an opinion on the subject which is contrary to social norms is not in any way criminal. However clearly avoiding to answer the question, as he did, is an indication of a person who fails to be candid with the Court. I was left with the clear impression that Mr. W. was not being candid and frank with the Court but trying very hard to avoid the question.

49I have also found Mr. W.’s description of his hostile feelings towards S. totally contrived. There was no foundation in the evidence for the existence of those feelings at the relevant time. S. was a good friend of his son P.. S. would come for visits in Montreal. The police had a photograph showing S. near him while Mr. W. worked on S.R.’s car. No one gave any evidence whatsoever to support the fact that there was bad blood between S. and Mr. W. in the 1990’s.

50Yet in his evidence Mr. W. states that when S. was 12 to 15 year he did not like him and found him obnoxious and a pest. This only comes out in cross-examination as an explanation as to why he would never buy him a Gameboy.

51Similarly it is noteworthy that when asked why according to him Y. and I. stopped being friends, he answered because Y. was jealous of I.. I find this is an attempt to avoid the obvious. The relationship between the girls stopped at the time of Y. and S.’s declaration to the police. It is also clear that when Mr. W. stopped visiting T.G.B. in 1999 the girls would see much less of each other. Those are the reasons. Depicting Y. as a jealous person is a gratuitous attempt to undermine her character.

52I also find totally unbelievable the reasons given by Mr. W. for having stopped attending T.G.B. in 1999-2000. He had been a practising nudist since the age of 14 according to him. He had no credible personal reason to stop the practice at that time. I find he did so in the wake of the incident at the pond related by Y..

53For the following reasons I find Mr. W. not guilty of counts 13, 14, 15, 16.

54Counts 13, 14, 15 and 16 are all based on section 171 (a) of the Criminal Code. I am of the opinion that section 171 has no application to the facts of this case. Unfortunately neither counsel provided me with submissions on section 171. My reading of the section lead me to conclude that the section is concerned with the unlawful use of premises for criminal sexual activity. The essential element that must be proved beyond a reasonable doubt is that the owner or occupier of the premises knowingly permits the young person to be present in the premises for the express purpose of sexual activity by the children he allows in the premises.

55My view is supported by what appears to be one of the very few reported Ontario cases that considered the section or its predecessor.

56In R. v. Sing 1910 CanLII 216 (ON CA), [1910], 17 C.C.C. 361, the Ontario Court of Appeal considered what was then section 217 which read as follows:

“Everyone who, being the owner or occupier of any premises, or having, or acting or assisting in, the management or control thereof, induces or knowingly suffers any girl under the age of eighteen years to resort to or be in or upon such [22 OLR Page 6-14] premises for the purpose of being unlawfully and carnally known by any man, whether such carnal knowledge is intended to be with any particular man, or generally, is guilty of an indictable offence., and is liable, --.“

57Sing was a case where the accused was charged with having sexual intercourse with a girl under 18 in his premises. The stated case to be answered by the Court of Appeal was:

“Was it necessary for the prosecution to prove that the accuses suffered the girl to be in the premises for the purpose of being carnally known by some man other than himself?”.

58In a majority decision, the Court answered the question in the negative and found the accused not guilty. Garrow J.A. provided the following reasons for the majority:

“The second is not so easily answered, largely because of its somewhat peculiar from. I assume, however, that what it really means is – is it an offence, within the section, for the owner of the premises to have illicit connection upon the premises with a girl within the prescribed age? And to such a question I would answer, “No”.

A somewhat similar question was recently before this Court in the case of Rex v. Karn, 1909 CanLII 218 (ON CA), 20 O.L.R. 91, but with this vital distinction, that in the case there was, in addition to the act of the prisoner, himself the occupier of the premises, a similar act, with his knowledge, by another man with another girl.

The section is not, in my opinion, aimed at the mere act of illicit intercourse. The offence would be, I think, complete, although perhaps not easily proved, without any evidence of actual illicit intercourse, if it was established that the girl was induced or knowingly permitted to be upon the premises for the unlawful purpose. A connection with a man following is merely in the nature of evidence of the unlawful purpose. If, for instance, an owner or occupier of premises was knowingly to permit a girl to be upon his premises under an appointment made with her to there meet her paramour for the purpose of illicit connection, the offence of the owner or occupier would be complete, although the man failed to appear. And it is, of course, apparent that the statutory offence may be committed by a woman, as was the case in The Queen v. Webster, 16 Q.B.D. 134. The language of the section is, no doubt, purposely made wide, but its plain object is, I think, to forbid the use, either occasionally or habitually, of premises as assignation-houses, or hours of that nature, to which young girls may or may be induced to resort. The girls need not, as in sec. 211, have been of previously chaste character. They may even, for anything that appears, be leading a life of prostitution.”

59More recently in R. v. A.S. [2016] ONSC 3032, O’Marra J. acquitted the accused of charges under s. 271. The accused was the mother of a 9-year old girl who was sexually abused by her boyfriend in the couple’s home. The accused had knowledge of the abuse for over a year before the child reported the abuse to a physician. The accused was convicted of failure to provide the necessities of life and Criminal negligence causing bodily harm. She was acquitted of permitting prohibited sexual activity contrary to S. 171 (a) on the basis that the Crown had not proven that A.S. knowingly permitted the victim to be in the premises for the purpose of engaging in sexual activity.

60The Crown has not convinced me beyond a reasonable doubt that the children were permitted to be in the premises for the purpose of engaging in sexual activity. The fact that the abuse occurred in his premises is not sufficient to prove the offence. On the overall evidence that is all that the Crown has proved beyond a reasonable doubt.

61I will now deal with the other counts by reference to each alleged victim separately.

Y.

62She is alleged to be the victim in counts 2, 6, 9 and 18. She also gave evidence in relation to counts 4, 7 and 11 where I. is alleged to be the victim.

63Y. provided evidence of three occasions where she was involved in sexual interaction with the accused.

64She first testifies about incidents of mutual oral sex with the accused in T-2. Secondly she testifies to mutual oral sex with the accused and between the accused and his daughter in the accused bedroom in his Montreal apartment. Thirdly she describes an attempt by the accused to sexually assault her near the pond.

65Although I find the testimony of Y. to be credible in the sense that she appears to genuinely try to tell what she remembers without exaggerating, without significant contradictions throughout her testimony and without a hint of aggressivity towards the accused, I also find her testimony relating to the two first incidents to be unreliable because of her obvious difficulty in really remembering what happened. To a certain point, her recollection, and she admits this, appears to me as foggy as if it was a dream. I am not convinced beyond a reasonable doubt of the guilt of the accused of counts 2, 6 and 9 on the evidence of Y..

66Her evidence in respect of the third incident does not suffer from the same frailties. She is approximately 9 years old at the time and she recalls very clearly what happened. I find her evidence credible and reliable. I am convinced beyond a reasonable doubt that Mr. W. applied force to Y. for sexual assault as she describes in her testimony.

67Mr. Jubinville submits that the Crown has failed to prove that the offence occurred between January 1, 1995 and December 31, 1998. He is correct in pointing out that Y. turned 9 on November 29, 1998. On the evidence, all incidents occurring at T.G.B. happened in the summer. Y. testified she was 9 when it happened. If so, the earliest it would have happened is in the summer of 1999.

68I agree with Crown counsel that in the circumstances of this particular prosecution, the time specified in the indictment is not an essential element. The defence is not prejudiced by the difference in the time alleged in the indictment and what the evidence reveals. I will therefore apply the provisions of Section 601 of the Criminal Code. I find that the pond incident occurred in the summer of 1999 and I amend count 18 accordingly. I find Mr. W. guilty of count 18.

S.

69S. provides evidence in relation to counts 1, 4, 5, 7, 10, 11, 12, 17 and 19.

70Chronologically, the first memory S. has of sexual activity is when he walked into T-2 and found the 3 other children naked on the bed with the accused. There was sexual interaction between the children and the accused was encouraging them by saying it’s OK and giving instructions. He indicates he was younger on that occasion then when the accused introduced him to anal penetration which he places at 12 years. I find that the T-2 event occurred when he was 11 or 12. This would have occurred in the summers of 1993 or 1994 when Y. was 4 or 5 years old. Both Y. and S. testified that I. was a little bit younger than Y..

71I find S. to be a credible witness. He never exaggerates and always attempts to only relate what he actually remembers. He is clearly not vindictive in the way he testifies. I find him to be a credible and reliable witness. Although he is sometimes unclear as to which child did what to whom, it is clear that there was sexual interactions between the children and that the accused was counselling them to sexually interact. S. describes specifically masturbation and fellation performed by Y. on himself and masturbation and fellation by I. on P. in the presence of the accused.

72I accept and believe his evidence in relation to these events.

73However, in the case of count 10, I am not convinced beyond a reasonable doubt that the Crown has proved that the accused counseled S. to touch Y.. S. does not indicate he sexually touched his sister in the presence of the accused with his hand and mouth as alleged. Y. does not offer any convincing evidence S. sexually touched her.

74Similarly, in the case of count 12, there is no convincing evidence that the accused counselled P. to touch I. with his hand and mouth. The evidence of S. only clearly convinces me beyond a reasonable doubt that the touching was done by I. by means of fellatio and masturbation.

75S. also testified that on one occasion in Montreal he walked into the bedroom of the accused and found I. performing oral sex on her father. The accused said “this is OK”. I accept and believe his evidence in relation to this event. However there is no clear evidence in S.’s evidence that he saw the accused touch his sister Y. as alleged in count 6.

76Finally, S. testified that starting with the initiation to anal penetration when he was 12, he regularly visited the accused in his trailer at night when they had sexual interactions which included mutual oral sex. This continued until he was 15 and left for Germany. I accept and believe his evidence on these events.

77I reject defence counsel’s submissions that these night episodes only took place after S. turned 14. I accept S.’s evidence that it started when he was approximately 12 years old.

78I also reject defence counsel submission that the evidence discloses a decision by Y. and S. to get Mr. W. and that taints their evidence. There is no foundation in the evidence that would raise a reasonable doubt in this respect. The disclosure came only after the police approached the R. family concerning the Mardon investigation. The testimony of both Y. and S. do not support a finding of collusion or a well prepared scenario to

get Mr. W.. It must be remembered that after 1999 Mr. W. had stopped coming at the R.’s during the summer months and everything indicates that both S. and Y. had moved on with their lives when the police knocked on the R. door in 2008.

79I also reject defence counsel submissions that S.’s memory is too frail to be reliable. He bases his submissions on the witness hesitations and pauses. I find that when S. hesitated or paused he did so to make sure he only said what he remembered. There was no significant contradictions in his evidence. He did not avoid any question.

80However, I agree with defence counsel that there is no evidence establishing the age of P.R.. The Crown must prove that P. was under 14. Although it is more probable than not that P. was under 14 when the first group of sexual activity took place in T-2 the evidence falls short of proving he was under 14 on a reasonable doubt. For these reasons also Mr. W. is found not guilty of count 12. There is however evidence which convinces me that Y. and I. were under 14 at the relevant time.

CONCLUSION

81For the above reasons, Mr. W. is found not guilty of counts 2, 3, 6, 8, 9, 10, 12, 13, 14, 15, 16 and 20. Mr. W. is found guilty of counts 1, 4, 5, 7, 11, 17, 18 and 19.

The Honourable Justice M.Z. Charbonneau