R. v. D.H., 2016 ONSC 7121
COURT FILE NO.: CR-13-0025
DATE: 2016 12 02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
D.H.
Jeremy Tatum, for the Crown
Mary Cremer, for the Defendant
HEARD: October 3-7, 2016
REASONS FOR JUDGMENT
Woollcombe J.
A. Introduction
[1] D.H. is charged on an indictment as follows:
D.H. stands charged that during the period beginning on or about the 1st day of March, 1994, and ending on about the 30th day of September, 1998, at the Town of Caledon in the said region, did unlawfully, commit a sexual assault on A.M contrary to s. 271 of the Criminal Code of Canada.
And further that D.H. during the period beginning on or about the 1st day of March, 1994, and ending on or about the 30th day of September, 1998, at the Town of Caledon in the said region, did unlawfully, for a sexual purpose, touch A.M., a person under the age of fourteen years, directly with a part of his body contrary to s. 151 of the Criminal Code of Canada.
And further that D.H. during the period beginning on or about the 1st day of March, 1994, and ending on or about the 30th day of September, 1998, at the Town of Caledon in the said region, did unlawfully, commit a sexual assault on A.M contrary to s. 271 of the Criminal Code of Canada.
And further that D.H. during the period beginning on or about the 1st day of March, 1994, and ending on or about the 30th day of September, 1998, at the Town of Caledon in the said region, did unlawfully, for a sexual purpose, touch A.M., a person under the age of fourteen years, directly with a part of his body contrary to s. 151 of the Criminal Code of Canada.
And further that D.H. on or about the 9th day of December, 2000, at the Town of Caledon in the said region, did unlawfully, commit a sexual assault on A.M contrary to s. 271 of the Criminal Code of Canada.
And further that D.H. on or about the 9th day of December, 2000, at the Town of Caledon in the said region, did unlawfully, for a sexual purpose, touch A.M., a person under the age of fourteen years, directly with a part of his body contrary to s. 151 of the Criminal Code of Canada.
And further that D.H. during the period beginning on or about the 1st day of March, 1994, and ending on or about the 9th day of December, 2000, at the Town of Caledon in the said region, being in a position of trust towards A.M., a young person, did unlawfully, for a sexual purpose, touch directly the body of A.M., a young person, with a part of his body, to wit: his hands contrary to s. 153 of the Criminal Code of Canada.
[2] At the conclusion of the trial, the Crown invited me to find D.H. guilty of two counts of sexual interference, contrary to s. 151 of the Criminal Code, for two distinct incidents described by A.M. One of these is said to have occurred on a date between 1994 and 1998, and the other was on December 9, 2000. In addition, the Crown says that the facts of these two incidents should lead to a conviction for sexual exploitation.
[3] As well, the Crown suggests that the complainant’s evidence in respect of two other incidents should give rise to two convictions for the included offence of assault.
B. Overview of the Evidence Relating to the Allegations
[4] The complainant in this matter is A.M. She is now 29 years old, having been born in 1987. She testified about events that occurred between 1994 and 2000. The accused D.H is her uncle, having been married to her mother’s sister, C.H..
[5] A.M. grew up in a close family with her parents and two brothers. She also had a close extended family that included her grandparents and D.H. and his family, who lived with her grandparents. Her family lived close by and she saw her relatives frequently.
[6] A.M. described various incidents from her childhood. For some of these, she had memories of feeling uncomfortable with D.H. but the Crown did not allege any criminal conduct. Her evidence was offered to provide context and background about her relationship with D.H.. For others, she described specific criminal conduct.
The incident in the cabin
[7] A.M. described the first incident of abuse that she could recall. She thought she had been in grade two. Her recollection was of an incident in the cabin at the back of her grandparents’ property. Photographs of the cabin were entered into evidence. A.M. described the cabin as having two little beds or cots. Her recollection of the incident begins with her lying on her back on a cot on the left side of the cabin under the window. Her back and head were on the cot but her legs were in the air and D.H. was standing between her legs holding them up. She recalled him rubbing her thighs. She testified that she remembered feeling D.H.’s hands sliding in circles between her knee and hip.
[8] A.M. testified that she thought that D.H. had kissed her ear during this incident but said that she had a foggy memory of it. Under cross-examination, she confirmed that she recalled her ear being kissed.
[9] A.M. was unable to recall how or why she had been at the cabin. She could not remember how the incident began and said that her brother and cousin had been playing by her grandparents’ home on the other side of the stream. She said that after it had happened, she had walked out of the cabin and almost felt “removed” from her body and could not believe what had happened.
The snowmobiling incident
[10] A.M. described another early incident with D.H. that occurred in the winter. She thought she was seven or more likely eight years old and in grade two.
[11] She testified that it was common for her family to go snowmobiling and for the children to be taken for snowmobile rides. She recalled that D.H. took her for a skidoo ride and that she was seated in front of him between his legs. She said that he stopped the skidoo and turned it off. She recalled feeling his body wrapped around her next to her. She felt trapped, though not physically restrained. She said that she did not want to be there.
[12] It was A.M.’s evidence that by this point, she felt that she had already been abused by D.H. She said that when he stopped the skidoo he said to her, “Some girls think this is bad, do you?” She knew what he was talking about and recalled thinking that she did not want to be doing this. Despite this, she answered “no”.
[13] A.M. could not recall there having been any inappropriate touching during this incident, although she could not say firmly. She believed that D.S.’s words had referred to his ongoing inappropriate touching of her. Under cross-examination, she was clear that she did not think she was taking his words out of their correct context and was sure that the inappropriate touching was ongoing by that point. She said that she had gone on the ride because everyone was going and it was her turn.
A.M.’s ninth birthday
[14] The next specific event A.M. described was her ninth birthday, at which point she had been in grade three. On her birthday, the family celebrated with a bonfire at her parents’ home. She recalled that D.H. and her aunt C.H. gave her a home-made VHS movie that had photographs and clips for her. She said that she did not want it because she did not want any special treatment from D.H. She said that D.H. was already being inappropriate with her.
[15] A.M. testified that she had thrown this gift out in 2014 when her parents were cleaning out their home and it was with other movies they had. She denied the defence suggestion made during her cross-examination that she had kept it all those years because she liked it.
[16] A.M.’s mother confirmed her evidence about D.H. having made a special video for her on her birthday. She described it as an example of D.H. favouring her and treating her differently than her brothers.
The four-wheeler ride
[17] A.M. recounted an incident in the summer when D.H. had taken her on one of the family four-wheelers onto the open field behind where her grandparents lived. He stopped the vehicle and they got off and went into the forest. She recalled being fearful that something would happen and said that she tried to keep her distance. She said that nothing happened on that occasion. She agreed that she could not recall who else had been there or what the context had been. She denied the suggestion that if abuse had been going on she would never have accepted the ride.
The kissing incident in D.H.’s bedroom
[18] A.M. described another early incident with D.H. This is the first incident on which the Crown alleges that she was sexually assaulted. She recalled being at her grandparents’ home where D.H. and his family also lived. She thought that she had been between eight and ten years of age. She was there visiting her cousin T.H., who was two years older than her. The two of them sat outside talking on the trampoline. Photographs of the property were entered into evidence.
[19] A.M. testified that she was hungry and so she went into the house to the basement apartment where D.H. and his family lived. She was comfortable going inside alone and chose to go into that apartment, and not to her grandmother’s upstairs, because she was visiting her cousin.
[20] Inside, A.M said that D.H. was standing in the kitchen. She told him that she was hungry. He took her by the hand or wrists and led her out of the kitchen and down the hall to his bedroom where he pulled the door slightly closed and positioned himself just inside the door. She said that he tried to kiss her on the mouth. He tried to put his tongue in her mouth and she recalled keeping her teeth closed. She felt his mouth and stubble on her face. She remembered hearing the sound of the main door and said that he pulled her quickly from the room, gave her a snack and sent her out like nothing had happened. She agreed that she had no memory of what happened afterwards.
The storage room incident in A.M.’s basement
[21] A.M. described an incident that she said occurred in the basement of her parents’ home in a storage room off the laundry room when she was quite young. She recalled sitting on an exercise bicycle, although she had no recollection as to why she was there. She said that she was facing backwards and that she recalled D.H. in front of her holding her legs at the back of her knees.
[22] A.M. recalled her mother going into the adjacent laundry room where there was a freezer. She said “hi mum” to attract her mother’s attention. She said that her mother appeared surprised to see them there. Her mother asked what they were doing and A.M. testified that D.H. said that she was showing him wallpaper. Her mum said that they knew where the lights were and asked why they were not on. A.M. testified that beside the bike was a bookshelf that had rolls of juvenile wallpaper borders. After the lights were on, D.H. and her mother discussed wallpaper.
[23] A.M.’s mother testified that she recalled walking into a situation that made her uncomfortable. She described being in the basement getting something out of the freezer and hearing A.M. speak to her from the next room. She recalled A.M. on the exercise bicycle facing D.H. and said that she “scurried out”. She asked what A.M. was doing and why the light was off. She said that D.H., replied that A.M. was showing him the wallpaper, which seemed out of context. A.M.’s mother described the incident as “shocking”. She thought that A.M. had been nine or ten at the time.
The tickling incident
[24] A.M. described a later incident that she also thought occurred when she was about 13 years old. She recalled being over visiting her cousins and said that the youngest cousin, N.H., who was born in 1999, was about a year and a half. She was lying on his little bed with him and D.H. suggested tickling her. D.H. then tried to tickle her, which she said was unwanted from her. She pretended to laugh because her cousin was little.
[25] A.M. acknowledged under cross-examination that she had no idea how she got to her cousin’s home or what led her to being in N.H.’s bedroom. She could not recall who else had been at the home at the time.
[26] A.M. recalled that later on that day, D.H. sat on the couch beside her, to her left side, and leaned over. He said to her quietly that he could get into big trouble and not to tell anyone and not to tell her best friend. She agreed that he had not touched her inappropriately that day, but said that she had not wanted him to tickle her and did not want attention from him.
The Incident in A.M.’s bedroom while the cousins played videogames
[27] A.M. described an incident in her basement bedroom in which her brother and two of her cousins were playing Nintendo while lying on her bed. This occurred before December 9, 2000. She lay on her bed on her right side propped up on her right elbow watching them. She recalled D.H. coming down to the basement to see what they were doing. She said that he lay right behind her and right up against her. He put his left arm over her and held her left hand so that their fingers were interlocked. She agreed that the door was not closed and that her brother and cousins were there throughout.
The laundry room incident on December 9, 2000
[28] A.M. recalled an incident that she knew occurred on December 9, 2000 as this was her “half birthday” and the date on which she was thirteen and a half.
[29] A.M. said that she had been at a Bramalea church event which D.H. and her aunt were catering. Her mother was also there helping. A.M. was at the church looking after her cousin N.H. Towards the end of the event, she left with D.H. and his two young sons (her cousins) to go to Home Depot on their way home. She testified that this was a way for her to hang out with her cousins and to avoid cleaning up. When asked under cross-examination why she would have gone with D.H. when the abuse was ongoing, she said that she was going with him and her two cousins and was going to take care of N.H..
[30] When they got home to D.H.’s place, she recalled being in the living room. D.H was in the laundry room and came out and said that he had lost a bolt or a washer and asked if with her “young eyes” she could help him to find it. She said that she went into the laundry room and crouched down and began looking for the bolt or washer.
[31] A.M. testified that D.H. came up from behind her and that she could recall him breathing in her ear. She froze and stood up. He asked if he could touch her. She testified that she thinks that in the back of her head she was hoping it would be an innocent touch. She testified that she knows now that she should have realized that this was unwanted touching. She said, “yes” and testified that she had carried the guilt of that answer for years after. He was behind her and put his hands up under her shirt and under her bra and told her that her breasts were getting bigger. She testified that she felt “frozen” and “stuck”. He cupped her breasts and asked if he could see them. She said “no”.
[32] At that point, her cousin N.H. pushed open the door and D.H. stopped. A.M. testified that she recalled her mum and aunt coming back to the home and that she then went home with her mum.
[33] A.M.’s mother testified that she recalled a banquet at the church when A.M. left with D.H. and his two sons and went with them to put her cousins to bed. She and C.H. stayed at the church. She described her daughter A.M. as having been D.H.’s favourite and explained that he had nicknames for her and treated her differently and focused more attention on her.
The sleepover incident in B.H.’s bedroom
[34] A.M. testified about an incident that she recalled happening well after the laundry room incident at a time after D.H. and her aunt had changed the layout of their apartment. It was after December 2000 and before 2003. She could not recall why she slept over that night and said that sleepovers were not uncommon. She recalled that she had slept over in her younger cousin B.H.’s room. B.H. was a gymnast and there were gym mats on her bedroom floor. A.M. slept on the floor with her cousin K.H. on her left and B.H. next to him.
[35] A.M. recalled waking up in the night and that D.H. was in the doorway with a glass of water. He told her that K.H. had been thirsty. She looked at K.H., who appeared to be sound asleep. She knew that something “didn’t measure up”. D.H. then lay down beside her and put his head on her right shoulder. She thought he had rested his right hand on her stomach. She could not recall him saying anything and testified that eventually he left. She said that she could not sleep after this. She had no recollection of the events of the next morning.
The final incident in A.M.’s bedroom
[36] A.M. testified about what she described as the final incident with D.H. in the fall of 2003. She had started grade 11 and was home alone after school one day. She heard a knock at the door and it was D.H.. He told her that he wanted to borrow a tool, which was not uncommon among the men in her family. She let him in and returned to her bedroom. She described how at the time, she had seen the latest Pirates of the Caribbean movie, with actor Orlando Bloom, and that she had pictures of him on her wall.
[37] A.M. said that after going to the storage room, D.H. came to her room and told her that he could not find the tool and would ask her dad. D.H. asked her who the “latest boy on the wall” was. She told him it was Orlando Boom and said that she had seen the movie. She showed him a headshot of Orlando Bloom. D.H. said that he did not recognize him and asked if she had another photograph.
[38] A.M. said that she went to her desk and crouched down. While she was doing so, D.H. rested his chin on top of her head. She said “don’t” in a loud, firm voice to stop him from touching her and stood up and faced him. He told her that if she “ever wanted to start things up again” to let him know. He asked if she would give him a hug. She said that she gave him a quick hug, although she testified that she did not know why she did that. After he left, she ripped down the picture because she did not want the reminder of how he had made her feel.
[39] A.M. was clear under cross-examination that she did not understand D.H. to be referring to her ever doing clerical work for him again. She thought he was referring to inappropriate sexual touching.
C. A.M.’s Disclosure
[40] A.M. agreed under cross-examination that her parents were supportive of her and that she could have told them about D.H. touching her at any point between the time she was seven or eight and when she was sixteen. She also agreed that her grandparents were supportive but said that she would never have gone to them before her parents.
[41] A.M. testified that in the summer of 2004 she told her boyfriend at the time about what had happened with D.H. It was late at night while her boyfriend was at her home and her parents had wanted him to go home because it was so late. She explained that she had not told anyone what was happening at the time things occurred because she felt guilty and felt that she had allowed it to happen. She said that she had not wanted to share her hurt, guilt and shame with her family and that she had cried to her dog at night. She said that her boyfriend told her that she needed to tell her parents or he would do so.
[42] A.M. denied the suggestion made to her under cross-examination that she told her boyfriend about D.H. in order to impress him with her secret after he and another friend had shared their own secrets.
[43] The day after telling her boyfriend about what D.H. had done to her., A.M. told her parents. She left the dinner table and her mum followed her to her room. When she began to tell her the story of what had occurred, her mother got her father and a notebook in which she recorded what A.M. told her. She denied that she had told her parents about D.H. because she was in trouble for having had her boyfriend over late the night before.
[44] A.M.’s mother recalled the night after A.M.’s boyfriend had been over late. A.M. starting to cry at the dinner table and left the table, which was out of character. Her mother followed her and A.M. then opened up and told her parents what had happened with D.H.. She took notes as she realized the significance of what her daughter was telling her.
[45] At that time, in the summer of 2004, A.M. did not report anything to the police. She said that she did not feel emotionally strong enough to do so and that they tried to handle the situation as a family. She knew that her parents had discussed her allegations with their pastor and said that there had been family meetings. She said that the actual incidents were not discussed at these meetings, and that there were discussions more about how their family could move forward. One of the goals of the meetings was for D.H. to admit what he had done.
[46] A.M.’s mother confirmed that A.M. had said that she was not ready to go to the police but that they had consulted with their minister and then had family meetings to try to deal with the situation.
[47] A.M. testified that she wrote a note to her aunt C.H. in October 2004 but that she never intended to give her the note. She felt that it was a release for her to be able to write down what it was she wanted to say to her aunt. She explained that her aunt had told her that she was “an actress” when she heard about the allegations A.M. was making against D.H. A.M. testified that she had loved C.H. like a second mother and that this response really hurt her.
[48] It was in the summer of 2011 that A.M. decided to send the note to C.H., which she did after making a copy of it for herself.
[49] A.M. first went to the police with her allegations in July, 2012. She explained that at that point she was in a better place in her life. She had met her current boyfriend and felt good about herself. She felt that she needed to protect herself, any other potential victims and her cousins by coming forward. She felt strong and confident enough to do so. She made a first statement to police on July 13, 2012 and a second statement on October 19, 2012.
D. Positions of the Parties
[50] I will summarize some of the important components of the positions of the Crown and defence.
[51] It is the Crown’s position that the kissing incident in D.H.’s bedroom after A.M. went inside his home for a snack is a first count of sexual interference. The Crown says that a second instance of sexual interference occurred on December 9, 2000 in the laundry room. The Crown submits that D.H, was in a position of trust in relation to A.M. and that these offences are also sexual exploitation.
[52] The Crown submits that the incident in the cabin amounts to an assault because A.M. did not consent to D.H. rubbing her thigh. He submits that there was a further assault in A.M.’s bedroom when D.H. lay behind her and put his arm around her and made her feel uncomfortable.
[53] The Crown submits that A.M. was a credible witness who acknowledged the limits of her memory. She had no motive to make up these allegations. She was embarrassed by what D.H. did and blamed herself. It was only much later that she was comfortable in going to the police.
[54] The defence agrees that if D.H. is found guilty of either of the sexual interference counts, he should also be found guilty of one count of sexual exploitation, given that A.M. was under the age of 16 and D.H. was in a position of trust towards her.
[55] In relation to the sexual interference counts, the defence position is that A.M.’s conduct suggests that she was not being abused. If there was ongoing abuse, she would not have gone into the home looking for a snack. Similarly, she would not have left the church catering event and gone with D.H.. The defence says that A.M.’s evidence lacks credibility because she would never have made the choices to put herself in the vulnerable situations that she did if she was being abused.
[56] In relation to the kissing incident in D.H.’s bedroom, the defence says that there are important aspects of the events about which A.M. has no memory. She cannot recall who took her to her cousin’s home. She cannot recall who came into the home when she was in the bedroom. She cannot recall any details from later that day. The argument is made that if this incident occurred, it would be so out of the ordinary that she would recall these details. With respect to the details that she did describe, there was nothing unique about being kissed by D.H. It is argued that the details were about how the kiss felt are not unique and are something that A.M. would have experienced later in her life. It is also argued that D.H. would never have done this with his parents upstairs and with other people around.
[57] In relation to the December 9, 2000 laundry room incident, the defence says that A.M.’s memory lacks details and so is unreliable. There are also inconsistencies between her memory and that of her mother. The defence says that if the other incidents had occurred as A.M. described, she would never have expected D.H. to touch her in an innocent manner and would never have permitted D.H. to touch her as she said she did. Again, the defence highlights that if things occurred as A.M. described, she would have a clearer memory of the events after.
[58] In relation to the alleged assault in the cabin, the defence says A.M. was unclear as to whether she was kissed on the ear and that she has such gaps in her memory of that day as to be unreliable in her evidence about having been touched. In short, it is said that we know too little about the circumstances and context for D.H. to be found guilty of anything.
[59] In relation to the alleged touching on A.M.’s bed, the defence says that there was a history of closeness and affection in the family and that there is no evidence that D.H. touched A.M. in a manner that was unwanted. This incident is said to have been innocuous.
E. Applicable Legal Principles
[60] The Crown bears the burden of proving all of the essential elements of the offences charged beyond a reasonable doubt. The accused D.H. has chosen not to testify in his trial. He is under no obligation to do so as the burden of proof rests with the Crown.
[61] Section 151 of the Criminal Code describes sexual interference as touching directly or indirectly with a part of the body or with any object, any part of the body of a complainant who is under the age of sixteen years old for a sexual purpose. The Crown must prove that the accused had a sexual purpose in the touching.
[62] Section 153 of the Criminal Code describes the offence of sexual exploitation:
Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person and who
(a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person…
F. Analysis
[63] I begin my analysis by commenting on the evidence of the complainant, A.M.. I found her to be a very credible witness. I say this for several reasons.
[64] First, generally, I found that A.M. testified in a manner that was clear and straightforward about the events she recalled. She was very candid in acknowledging what she could and could not recall. Not surprisingly, given the passage of time since many of the events about which she was testifying, there were details that she was unable to remember. For instance, for a number of the early incidents A.M. testified that her memory began in the middle of an event and that she could not recall such things as why she was some place, how she got there, what the weather was like, and who she was with. I found her way of remembering the events she described to be reasonable and to make sense. The unimportant details were forgotten and the significant events that made her uncomfortable were what stuck with her. I found A.M.’s candour in acknowledging what I view as reasonable and understandable limitations of her memory to enhance her credibility.
[65] Second, it is my view that A.M. gave her evidence fairly. By this, I mean that she did not exaggerate or embellish her evidence and took more responsibility for what had happened than she ought to have. When it was suggested to her that she had described an event which, while it may have made her uncomfortable, did not include any inappropriate touching, she agreed. This included, for instance, her evidence about the skidoo and four wheeler rides. I was struck by the fact that her evidence seemed balanced and fair and often included no allegation of any inappropriate touching. It also included the admission that she told D.H. that he could touch her in the laundry room.
[66] Third, I found A.M.’s explanation for why she said nothing about the abuse by D.H. over the years to be very credible. In emotional testimony, she explained why she had blamed herself in part for what happened. She described the guilt that she took on as a young person and the worries that she had about letting down loved members of her family, including her parents. She was candid about why she continued to put herself in positions where abuse occurred, while at the same time hoping against hope that it would not continue. I found her explanations plausible and credible.
[67] Fourth, I found that there were elements of A.M.’s evidence that were confirmed by her mother. For instance, her mother confirmed that she had been at the catered church dinner in December 2000 and that A.M. had left and gone home with D.H. and her cousins. Her mother also confirmed having come upon what she described as an uncomfortable situation between A.M. and D.H. in the storage room in the basement. While the details that she gave were slightly different from A.M.’s evidence, the mother’s testimony confirmed for me that D.H. chose to put himself into situations alone with A.M. that were objectively inexplicable to others.
[68] Fifth, it appears to me that D.H. was involved in some form of grooming of A.M from the time she was quite young. As A.M.’s mother described things, A.M. was singled out for favoured treatment, such as when D.H. made the VHS tape for her for her ninth birthday. D.H. then took opportunities such as the skidoo rides or times when A.M. was in his home with her cousins to enable himself to touch her or hug her or say inappropriate things to her. I find that he knew from early on that she was not going to tell anyone about what he was doing and that he continued to abuse that trust over a period of years.
[69] Finally, I found the descriptions of the sexual abuse that A.M. suffered at the hands of D.H. in both his bedroom and in the laundry room of his home to be very credible. Her stories about what happened made sense. She provided the sort of level of detail that I would expect. Her descriptions of what happened were consistent in examination in-chief and cross-examination. There was nothing in her evidence that provided an obvious or inherent inconsistency and there was nothing implausible about what she said.
[70] I turn now to the first allegation of sexual interference. D.H. is alleged, in count 2, to have committed sexual interference between March 1, 1994 and September 30, 1998. The Crown says that D.H. should be found guilty of this count on the basis of A.M.’s evidence about D.H. kissing her in his bedroom after she and her cousin were outside on the trampoline.
[71] I accept A.M.’s evidence that she was visiting her cousin and went into the house for a snack. This was a home in which she was comfortable and she was visiting her cousin. I have no difficulty accepting that she would go into the home notwithstanding that D.H. had previously made her feel uncomfortable.
[72] Inside, A.M. said that D.H. led her to his bedroom and kissed her on the mouth. I accept her evidence. She described the kiss with detail, explaining that she felt his breath on her and felt his stubble against her cheek. She recalled clenching her teeth to prevent him from putting his tongue in her mouth. Her description of what occurred was believable. She explained that the incident stopped when they heard a door. This makes sense. I do not accept the defence position that D.H. would never have been bold enough to try this in his own home with his parents upstairs. In taking A.M. into his room and closing the door he secured sufficient privacy to kiss her. He stopped when there was a threat of being caught.
[73] I find D.H. guilty of count two, sexual interference, in relation to this incident.
[74] The second instance of sexual interference is that contained in count six, which alleges sexual interference on December 9, 2000. This is the touching of A.M.’s breasts in the laundry room at D.H.’s home after the catering event at the church.
[75] I accept the evidence of A.M. as to why she ended up back at D.H.’s home after the catering event at the church. A.M. had a close and loving relationship with her cousins. She enjoyed being with them. And, at the age of thirteen, she wanted to avoid having to assist her mother and aunt in doing the dishes from the catering event. She made a choice to go with D.H. and her cousins to D.H.’s home. I accept that she did so hopeful that she would be safe, because she was with her cousins. While in hindsight she likely recognizes the risk that choice put her at, I accept her evidence that at the time, she hoped that nothing would happen.
[76] A.M.’s description of what happened to get her into the laundry room was very credible. She went with D.H. because she believed that her “young eyes” could help him. I accept her evidence about this.
[77] In the laundry room, I believe her evidence that D.H. came up from behind her, that she heard him breathing in her ear and that she froze. I accept her evidence that he asked if he could touch her. While objectively it makes little sense that she told him that he could, her explanation as to why she said that he could rang true. As unlikely as it seems now that his touch would be innocent, I believe her when she says that this is what she hoped and that she has felt the guilt of her unfortunate response for years since.
[78] I accept A.M.’s evidence that D.H. stood behind her and put his hands under her shirt and bra and cupped her breasts. I accept that as he did so, he told her that her breasts were getting bigger. Her evidence about feeling frozen and stuck was consistent with her reaction to D.H.’s conduct in the past. A.M. did not know what to do or how to respond. It was when he asked to see her breasts that she had the courage to say no.
[79] A.M. explained how this incident ended when her young cousin pushed open the door to the laundry room. This fits completely with the situation. She had left him in the living room and gone to assist her uncle. That her cousin would have gone looking for her is hardly surprising.
[80] I am not at all troubled by the fact that A.M. does not know what happened after. She seemed to think her mother picked her up. Her mother thought she had slept over. Even if she did sleep over, this would have been consistent with the closeness of her family and that of D.H. and consistent with A.M.’s choice to say nothing to anyone about how her uncle was making her feel. Her mother had no reason to suspect anything was wrong and A.M. chose at the time to say nothing. Her lack of recollection as to the events later in that evening, some sixteen years ago, is neither troubling nor surprising.
[81] I find D.H. guilty of count six, sexual interference, in relation to this incident.
[82] Having concluded that D.H. should be found guilty of sexual interference, I have no difficulty also concluding that he should be found guilty of count seven, the count of sexual exploitation. As I have indicated, it was conceded by Ms.
Cremer that D.H. was in a position of trust towards A.M. This is a proper concession given that he was her uncle and given her young age over the period of time from March 1994 to December 9, 2000, which was 6 to 13 years of age.
[83] I will deal now with the assault allegations. As I have said, the Crown alleges two assaults: one in the cabin and the other in A.M.’s bedroom while her cousins and brother played Nintendo.
[84] The cabin incident is the first incident of abuse that A.M. recalls. Her memory about this incident begins with her lying on her back on a cot with her legs being held in the air by D.H. while he stood between her legs. She was very clear that she recalled D.H. rubbing her thighs in a circular manner.
[85] I am persuaded beyond a reasonable doubt that D.H. rubbed A.M.’s thighs in the way she described. She was able to describe in some detail how she was positioned, how he held her and how he moved his hands. She described how this touching made her feel. In my view, there is no innocent explanation for D.H. having touched A.M. in the manner that she described. The two of them were alone in the cabin away from other people. She was very young and he stood between her legs holding them up as she lay on a cot on her back. In my view, D.H. committed an act of assault.
[86] I recognize and appreciate that there are many details about this incident that A.M. was unclear about. She could not say why she was in the cabin or how she got there. She could not say where her grandparents were. She could not say whether this was a weekend. She did not know what happened after they left the cabin, although she could recall her brother and cousin playing closer to her grandparents’ home. I am not concerned by the absence of memories as to these details. While I found A.M.’s lack of certainty about whether D.H. kissed
her ear to cause me to have a doubt about that aspect of the incident, I have no reasonable doubt that D.H. touched her without her consent.
[87] I find him guilty of the included offence of assault in relation to this incident. This will be on count one.
[88] I turn finally to the incident in A.M.’s room in which the Crown alleged D.H. assaulted her by putting his arm around her while they lay on her bed. A.M. described how, while she was lying on her bed with her brother and cousins playing Nintendo, D.H. lay behind her, against her, put his arm over her and put the palm of his hand on the back of her hand, interlocking his fingers with her. She acknowledged that one could infer it was like a hug, but said that she took it as him holding her hand.
[89] I am satisfied that D.H. chose to lie down on A.M.’s bed directly behind her and to put his arm around her and hold her hand. I accept her evidence that she did not consent to him doing this. Ms. Cremer urges me to conclude that this is not unwanted touching, given the history of closeness and affection within the family. I do not accept that this was an innocuous incident. Rather, I find that D.H. intentionally chose to take advantage of a situation where he could lie down close to A.M. and touch her intimately without her consent.
[90] I find him guilty of the included offence of assault in relation to this incident. This will be on count three.
G. Conclusion
[91] For the reasons given, D.H. is found guilty of two counts of sexual interference (counts two and six), one count of sexual exploitation (count seven) and two counts of the included offence of assault (counts one and three). He will be found not guilty on counts four and five.
Woollcombe J.
Released: December 2, 2016
COURT FILE NO.: CR-13-0025
DATE: 2016 12 02
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
D.H.
REASONS FOR JUDGMENT
Woollcombe J.
Released: December 2, 2016