CITATION: R. v. W.H., 2016 ONSC 6500
COURT FILE NO.: CR25/15
DATE: 20161024
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
W. H.
Marie Balogh for the Crown
Breese Davies and Owen Goddard for the Accused
HEARD: September 26-28, 2016
REASONS FOR JUDGMENT
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Woollcombe J.
A. Introduction
[1] W.H. is charged with sexual assault and sexual touching in relation to A.L.. A.L. was nine years old at the time of the allegations. Mr. H. was her teacher. The allegation is that on one occasion, while the two of them were alone in a school portable, Mr. H. put his hand down A.L.’s pants and touched her vagina with his fingers.
[2] The trial proceeded over three days in which there was evidence called by the Crown from eleven year old A.L., her mother, A.L.’s home room teacher and the school principal. Mr. H. chose to testify in his own defence. Counsel then provided me with very helpful oral submissions.
[3] The only issue to decide is whether the Crown has proven beyond a reasonable doubt that the accused touched A.L. in the manner that she says. For the reasons that follow, I find Mr. H. not guilty of both offences.
B. The Evidence
[4] By the end of the trial, there were a great number of facts that are not in dispute. I will summarize them briefly, and then set what the areas of disagreement.
a) Background and evidence of events before the allegations
[5] The offences are alleged to have occurred on Tuesday, November 11, 2014. At that time, A.L. was nine years old and in grade 4 in a grade 3 /4 split class at her local public school. At that school, French instruction begins in grade 4. A.L.’s French teacher was Mr. H., who taught French out of a portable located in the school yard.
[6] Prior to teaching her French, Mr. H. had taught A.L. other subjects each year since kindergarten. He described her as a gregarious, friendly and hard-working student. A.L. described him as a nice teacher with whom she never had any problems before the alleged incident. There is no dispute that the two enjoyed a good, but not particularly special teacher/student relationship.
[7] On November 11, 2014, the grade 4 students in A.L.’s class had French in the portable with Mr. H. immediately before the first “nutrition break” of the day. Nutrition breaks in this school are forty minutes and consist of twenty minutes in which students eat a snack in their home room, followed by twenty minutes of outdoor recess.
[8] Toward the end of the November 11, 2014 French class, the students played a game called “Zut”. The details of the game are not important. In summary, it is a team game designed to reinforce the students’ learning. Teams could earn points by answering questions and could also lose points. The evidence before me is that the grade 4 students were very involved in the game that day and that they became noisy and rambunctious.
[9] A.L. was not pleased with the noisy behaviour of her classmates, which she felt was chaotic. At the end of the class as the students lined up to leave the portable, she asked Mr. H. if she could write some behavioural rules for Zut, which she thought would make the game go better. He testified that he thought this was a good idea and suggested that if she wrote them, he would review them, and they could share them with the class. She agreed to return to the portable to do this during the recess portion of the nutrition break that was about to start.
[10] After French, A.L. went to her home room class for the snack portion of the nutrition break. Mr. H. dropped by A.L.’s class to confirm that she planned to come to the portable during the outdoor recess time. After the snack break, A.L. went outside briefly and then went to the portable.
[11] In the portable. Mr. H. had put a pen and paper at one of the desks before A.L.’s arrival. He did not select A.L.’s regular desk, but rather chose one in the first row of desks along the wall running closest to the door to the portable. He explained that he planned to clean up the desks and stack the chairs while she was working, and that he put her furthest from the side at which he planned to start so that she would not be disturbed.
[12] A.L. sat down and began to write the rules. At some point while she was doing this, Mr. H. stood behind her to monitor her progress. It is at this point that their evidence diverges.
b) Evidence as to the alleged sexual assault
[13] According to A.L., Mr. H. came up behind her and put his hand under her pants and underwear and touched her. She said that he touched her vagina with his fingers. It made her feel uncomfortable. She said that he asked her if she liked it and she responded no.
[14] A.L. said that before she left the portable, Mr. H. read the rules over her shoulder and that she then went outside.
[15] Mr. H. denied having touched A.L. and denied asking her if she liked it. He said that he looked over her shoulder to make sure that she was progressing. When she told him that she was done, he thanked her and told her to go out and play for the last five minutes of the nutrition break.
c) Evidence following the alleged sexual assault
[16] In her police statement, which she adopted at trial, A.L. said that she saw Mr. H. later in the day but that they did not speak and that they just looked at each other.
[17] Under cross-examination, she agreed that Mr. H. had taught her later in the day and that he told her that he had read her rules. She said that he never responded. She agreed, however, that she had told him that she would meet him in the next recess break. She agreed that she had forgotten that she had Pals duty (a leadership position involving supervising other children in games) and that she spoke to him outside and told him that she could not come because of that.
[18] Mr. H. said that he reviewed the rules that A.L. had written and thought that they were too severe. He saw her during period 6 and spoke to her about her proposed rules. He testified that he asked if she wanted to come to the portable in the next recess to discuss changes. She agreed. He said that as he passed her outside during the next recess, he saw that she was on duty as a Pals leader and they decided to discuss the rules the next day.
d) A.L.’s disclosure to her mother and police statement
[19] A.L. testified that she did not tell anyone at school what had happened with Mr. H. on November 11, 2014. She took the school bus after school and followed her regular routine of going to her neighbour’s home where she was babysat. She stayed there until around 5:00 when her mother arrived home from work.
[20] A.L. testified that she wrote a note to her mother and gave it to her. The note was filed as an exhibit and says: “Mr. H. toched my pepee and said “do you like that” I said “no” He said ok tell me when you want me to do it”.
[21] A.L. said that after giving the note to her mother, her mother asked her about the touching and that she told her about it. She said that her mother hugged her and told her that she was proud of her.
[22] It was the evidence of A.L.’s mother, K.L., that after receiving her daughter’s note, she told her daughter that this was serious and asked if she was telling the truth. She denied having asked A.L. any of the details of her allegations.
[23] After the disclosure, K.L. contacted A.L.’s home room teacher who advised that he would contact the school. The following morning, K.L. took her daughter to the school and met with the principal. K.L. said that the principal was given the note A.L. had written but that he was not told the details of the allegations. The principal testified that A.L. told him what had happened with her mother present. A.L. also said that she told the principal what had happened with Mr. H.
e) A.L.’s allegation of seeing Mr. H. on November 17, 2014
[24] A.L. testified that she knew that a few days after she spoke to the police, Mr. H. was arrested. She also knew that he was not allowed to speak with her or have contact with her and that she was to tell her mother if he did so.
[25] She testified that a few days after Mr. H. was arrested, while she was playing outside with her neighbours after school, Mr. H. drove by. She said that he honked and that she was scared. She testified that she recalled the colour of his car and that she remembered what he was wearing. She remembered details about his white wool sweater, which she testified was a sweater he wore frequently. She recalled one of the boys saying, “there’s Mr. H.”. Under cross-examination, A.L. denied that she was making this up and agreed that if Mr. H. was at home that day, she would be wrong about having seen him.
[26] Under re-examination, A.L. said that she saw Mr. H. drive by her home regularly and that it was his usual route. She was asked whether it was possible that she had confused the date on which she saw him and said that it was possible.
[27] K.L. confirmed that she told A.L. that Mr. H. was not allowed to contact her and that A.L. told her about seeing him. Her daughter was very clear with her that it had happened on November 17, 2014.
[28] An Agreed Statement of Fact was filed as Exhibit 11 in the trial. It states that the police investigated A.L.’s statement about Mr. H. having driven past her home at about 3:40 on November 17, 2014. The two boys A.L. said had been with her when she saw Mr. H. were interviewed and neither confirmed A.L.’s account of seeing him. Interviews of Mr. H., his wife, and a third party confirmed that on November 17, 2014, he was at his home from 1:30 until 4:00 p.m.
f) A.L.’s knowledge about sexual touching
[29] K.L. testified that A.L.’s father had been charged with sexual assault of his son (A.L.’s half-brother) in about 2012. A.L. testified that before the incident with Mr. H., her mother had taught her about good and bad touching. Her mother had bought a book called “A very touching book” that she read to her regularly, beginning in the fall of 2012. A.L. understood that her mother did this because her father had sexually assaulted her older half-brother. She testified that after this happened, she did not see her father for about a year.
g) Evidence about best practices for teachers
[30] While there does not seem to be any firm rule, there was evidence that it was a “best practice” that teachers not be alone students. Teachers were encouraged to keep doors open when meeting one on one with students. It was also a best practice not to keep students inside at recess.
[31] One of the challenges for both teachers and students in providing extra help at A.L.’s school was that virtually all of the students were bused to school and from school, with their buses arriving very shortly before school started and departing almost immediately after school ended. The school principal testified that extra help is often given during the nutrition breaks. The natural location for this to take place is in a teacher’s working space.
C. Positions of the Parties
[32] The Crown says that the complainant was able to testify in detail as to what happened at the time of the touching in the portable. She says that inconsistencies in A.L.’s evidence were minor. It is the Crown’s position that there was no reason for the accused to have A.L. write the rules in the portable with him, particularly when he was aware of the best practice of not being alone with students. Ms. Balogh says that Mr. H.’s explanation for selecting the seat that he did on behalf of A.L makes no sense. She suggests that Mr. H. sat A.L. where he did in order to touch her without the risk of being seen.
[33] While Ms. Balogh acknowledges that A.L.’s evidence about seeing Mr. H. on November 17, 2014 casts doubt on her credibility, she posits an alternative theory for my consideration. On this theory, A.L. knew that Mr. H. drove by her home regularly and saw him frequently. She was scared and thought she saw him. Her story “snowballed” after she told her mother she had seen him. I am reminded that in her re-examination, she agreed that she might be mistaken as to the date.
[34] The defence submits that there are real difficulties with A.L.’s evidence. She is internally inconsistent, inconsistent with her mother, appears to have been coached by her mother and she made up the story about having seen Mr. H. on November 17, 2014. Ms. Davies says that Mr. H. gave his evidence in a manner that was candid, and straightforward. He was not defensive or argumentative and agreed with many of the Crown’s suggestions. He admitted that having A.L. in the portable alone was against best practices and explained why he chose to do so. He admitted having driven past A.L. before, but denied doing so on November 17th.
D. Applicable Legal Principles
[35] The parties agree on the applicable legal principles.
[36] The Crown bears the onus of proving the essential elements of each of the offences charged beyond a reasonable doubt.
[37] This is a case in which I have been presented with two starkly different versions of events as to what happened in the portable. My task is not to choose between competing versions of events. The question is whether on all of the evidence the Crown has discharged its burden of proving the accused’s guilt beyond a reasonable doubt.
[38] The law is clear that if I believe the evidence of Mr. H. that he did not touch A.L., he must be acquitted. If after careful consideration of all of the evidence I cannot decide whom to believe, he must be acquitted. Even if I do not believe the evidence of Mr. H., if it leaves me with a reasonable doubt, he must be acquitted. Finally, even if his evidence does not leave me with a reasonable doubt, Mr. H. may be convicted only if on the rest of the evidence that I accept, his guilt has been proven beyond a reasonable doubt.
[39] Counsel remind me of the correct approach to the evidence of young children, as set out in such cases as R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122 at paras. 23-32 and R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30 at paras. 47-48. The evidence of children is not to be assessed on the standard of a “reasonable adult”. Rather:
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.
[40] That said, the law also provides that children’s evidence must still be subjected to scrutiny and its reliability is to be carefully assessed.
E. Analysis
[41] I found A.L. to be an articulate young witness. She spoke clearly and answered questions in a straight-forward manner. I have no doubt that testifying was very challenging for her. While it is certainly possible that something happened to A.L. that made her feel uncomfortable in the portable, I am troubled by a number of aspects of her evidence.
[42] One of the most concerning aspects of A.L.’s evidence is the fact that she is clearly mistaken about having seen Mr. H. drive past her home on November 17, 2014. She told police about this the next day and testified about it. She said that she could recall details including the sweater he was wearing. She said that the boys in her class who were with her saw Mr. H. as well. She said that he honked his horn as though to get her attention. She testified that she was scared. There appeared to me to be no doubt in A.L.’s mind that as to when and where she saw the accused.
[43] The Crown accepts, on the basis of the evidence, that A.L. is wrong about having seen Mr. H. drive past her home on November 17, 2014.
[44] This means that either A.L. is mistaken, or that she is deliberately lying about having seen Mr. H. on November 17, 2014. While A.L. agreed under re-examination that she could be mistaken as to the date, I cannot conclude that this was all just an innocent error. It seems to me that when A.L. told her mother about seeing Mr. H., and when she told the police about the incident, and when she testified about it under cross-examination, she was very sure as to the date on which this occurred.
[45] Ms. Balogh, for the Crown submitted that A.L.’s evidence could be reconciled on the basis of her having been wrong about seeing Mr. H. on November 17, 2014, and that this error snowballed. The difficulty I have with this submission is that it is not consistent with what A.L.’s evidence. She never acknowledged having made the evidence up or that it was not true. To the contrary, she was pretty clear that she recalled the many details to which I have referred. She has always been clear about when she says this occurred.
[46] For me, this raises very serious issues about A.L.’s credibility. She has shown that she is able to tell a story that seems credible, but is actually untrue. How can I rely on the balance of her evidence, which was given with the same degree of confidence and certitude?
[47] The second major concern that I have about A.L.’s testimony is that her mother may have coached her and influenced her. A.L. said in court that the night before she testified in this trial, she was having trouble sleeping and was nervous. She went over at least part of her evidence with her mother. When asked if her mother had helped her, A.L. said that her mother kept nodding and said “this is how you told me and what you said”. It sounded from A.L.’s evidence like her mother corrected her about some aspect or aspects of her evidence.
[48] I recognize that K.L. denied having ever discussed the allegations with her daughter. She denied hearing them after receiving the note from A.L., and denied hearing them when they saw the school principal. This is inconsistent with A.L. herself and with the evidence of the principal. I cannot accept K.L.’s evidence on this issue. I find that after receiving the note from A.L., she asked her about the allegations and that A.L. told her what had happened both then and the next day in the principal’s office.
[49] This leaves me to conclude that K.L. knew what A.L. had said previously, and that in reviewing with A.L. her evidence as she did, she may well have influenced A.L.’s memory the night before she testified. This causes me to have further doubts about the reliability of the evidence that A.L. gave in court.
[50] There are two other areas of internal inconsistencies in A.L.’s evidence that cause me concerns about her reliability.
[51] First, I note that in her statement to the police, A.L. said that after the incident in the portable, while she saw Mr. H. again that day, she did not speak to him. Under cross-examination, it was pointed out to her that she had seen him in class that afternoon and that Mr. H. had told her that he thought the rules were harsh. She agreed, but testified that “I never responded”. She then agreed that her statement to the police that she had not spoken to him that day was untrue. She then agreed that they had spoken a second time when she told him in the yard that she had forgotten that she had Pals duty.
[52] I find it significant that A.L. told the police and adopted as her evidence that she had not spoken to Mr. H. after the alleged incident, when she admittedly spoke to him twice. The impression created by her police statement was that the incident with Mr. H. so upset her that she did not speak to him. The truth appears to be that she agreed to return to the portable to see him that very afternoon to go over the rules. For me, it is not the agreement to return to the portable that is troubling. What is concerning is the fact that A.L. tried to portray herself in one way, and later agreed that this was not true. This makes me question the reliability of her evidence.
[53] Second, I am concerned about the inconsistency in A.L.’s evidence as to whether or not the pants that she wore on the day in question were tied up. In her statement to police, which she adopted in the trial, A.L. said that she was wearing black pants. She was not asked about whether they were tied up. During her examination in chief, she said that the pants had a tie but that she did not think that they were tied up that day. She was asked about this in cross-examination and said that she was sure that they were not tied up. She was then referred to the evidence she had given at the preliminary inquiry at which point she had said that they were tied up “medium” tight. She agreed that her evidence in chief had been untrue and that they had been tied up medium tight.
[54] I am concerned about the fact that while A.L. ultimately agreed that her pants had been tied up, she was willing to say in chief that they had been untied. This evidence, of course, made it more likely that Mr. H. would have been able to put his hand down her pants. It appears to me, therefore, that she changed her evidence about this issue to make herself appear more credible.
[55] There are numerous other minor areas in which A.L. was either internally inconsistent or inconsistent with her mother. For instance, A.L. and her mother gave different evidence about the frequency of the reading of the book “A very touching story”. They also gave slightly different evidence about the way in which A.L gave her note to her mother. Generally, I do not find these to be of much significance to A.L.’s credibility.
[56] The defence says that A.L.’s evidence about having being touched in the way she described in the portable is inherently implausible. Four reasons are offered. I am not particularly influenced by any of these arguments, but will address each of them.
[57] First, it is submitted that A.L. and Mr. H. did not have any sort of special relationship and there is no evidence of grooming. While I accept that there was no special relationship between them, there is no doubt that A.L. felt comfortable with Mr. H., who had taught her for a number of years. I do not accept that the absence of any grooming behaviour, or a closer relationship, makes her allegations less plausible.
[58] Second, the defence says that the timing and location of the alleged incident make it less plausible in that there were many people in the yard outside the portable and that people would have been aware that A.L. had gone into the portable. Given that the two of them were alone in an elevated portable with the doors closed, I do not find the fact of the timing or location make the allegations implausible.
[59] Third, the defence submits that it would have been physically difficult for Mr. H. to have assaulted A.L. from behind her in the manner she described. I do not accept this and think that it was plausible and would have been physically possible for Mr. H. to have put his hand down A.L.’s pants as she described from a position standing behind her.
[60] Fourth, it is submitted that unlike many allegations made by children where the experiences described sound reliable because they are outside a child’s normal experience, this cannot be said of A.L., who was familiar with good and bad touching because of her father having been charged in relation to her older brother. While this is true, in my view there is nothing about A.L.’s knowledge from the incident related to her brother that would have suggested familiarity with the sort of language that she ascribed to Mr. H. in the note she gave to her mother on November 11, 2014, in which she said that Mr. H. had asked her if she liked the touching.
[61] The defence also submits that Mr. H. gave his evidence in a manner that was forthright and plausible and that I should find that he was credible and accept his evidence. The Crown says that Mr. H.’s credibility is lacking: he was aware of the best practice not to be alone with a student and chose to see A.L. in a place where his actions would not be seen, and to provide a false explanation for why he had her sit where she did.
[62] I am not persuaded of everything that Mr. H. said. I accept that he thought it was a good idea for A.L. to write behavioural rules for the Zut game. I do not understand why he needed her to be in the portable to do so, particularly when he did not see it as his role to have any discussion with her about the rules as she wrote them. It was very unclear to me why he wouldn’t have suggested that she draft rules at her leisure and show them to him. His explanation is that he wanted to encourage her to follow through and so thought recess would be a good time so that she did not let the idea go. While I am skeptical about this, I find that Mr. H.’s explanation as to why he permitted A.L. to come to the portable during the second half of the nutrition break is certainly not incredible. The portable was his space and she was to be working on something for his class.
[63] I do not accept the Crown’s position that there is something nefarious about Mr. H. having seated A.L. in the desk by the window. While I accept that no one would be able to see her through the window in that position, the evidence suggests that he would have been visible to the outside when he stood behind her. In my opinion, had Mr. H. wanted A.L. to be in a chair that was hidden from the view of those outside the portable so that he could sexually assault her, it would have made far more sense for him to have selected one of the desks beside the wall, away from the window. I am not troubled by his explanation of wanting her to be in a seat that was out of the way while he cleaned up the portable. I accept that this is what he did while she was in the portable, apart from when he looked over her shoulder to see her progress on the rules.
[64] While Mr. H. was aware of the best practice not to be alone with students, he explained that he was not really thinking about that at the time. He agreed that the portable was probably one of the most private areas in the school, although he said that he had never really thought about this. I found his evidence on these points, while perhaps indicative of not having thought carefully enough about the school’s best practices, to be candid and forthright. He was neither defensive nor argumentative. He realized, I think, that his poor decision is what enabled this allegation to be made.
F. Conclusion
[65] I cannot say what, if anything, happened between Mr. H. and A.L. in the school portable on November 11, 2014. As I have indicated, while A.L. testified that Mr. H. touched her in a manner that is both inappropriate and criminal, I am left with some serious concerns about the reliability of her evidence and am left well short of being satisfied beyond a reasonable doubt of Mr. H.’s guilt on the basis of A.L.’s evidence.
[66] Furthermore, Mr. H.’s evidence raises for me real doubts as to his guilt.
[67] In these circumstances, Mr. H. must be acquitted of both counts.
Woollcombe J.
Released: October 24, 2016
CITATION: R. v. W.H., 2016 ONSC 6500
COURT FILE NO.: CR25/15
DATE: 20161024
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
W.H.
REASONS FOR JUDGMENT
Woollcombe J.
Released: October 24, 2016