CITATION: R. v. E.E., 2017 ONSC 1307
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
E.E.
K. Simone for the Crown
H. Pringle for the Defendant
HEARD: February 10, 11, 13, 14 and 15, 2017
G. DOW, J.
REASONS FOR JUDGMENT
1E.E. pleads not guilty to committing sexual assault contrary to s. 271 of the Criminal Code regarding events detailed below which allegedly occurred between November 1, 2008 and December 31, 2008. Further, E.E. pleads not guilty to committing touching for a sexual purpose, with his hand, of a person under the age of 16 years contrary to Section 151 of the Criminal Code, also regarding events detailed below which allegedly occurred between November 1, 2008 and December 31, 2008.
2A jury was selected on February 6, 2017 and I all but completed my preliminary instructions to them. However, on February 8, 2017, with the Crown’s consent, E.E. re-elected to proceed to trial by judge alone. I began to hear evidence on February 10, 2017 after declaring a mistrial, re-arraigning the accused and making the following orders:
banning publication of the identities of the complainant and her family including their addresses and the accused under Section 486.4 of the Criminal Code;
excluding witnesses, except the accused and the investigating officer, Detective Constable Christine Knill in the event they testified;
sealing the courtroom and access to information that would compromise the identity of those involved pursuant to Section 487.3 of the Criminal Code.
3The issue in this matter is whether the events occurring in November and December, 2008 and reported by the complainant, (11 years old at the time), to her best friend, K.Y. (also 11 years old at the time)) and also to her older brother, W.P.1 (15 years old at the time) who collectively spoke with A.P. (the mother of the complainant and W.P.1) was touching with E.E.’s hands on the complainant’s leg in a manner that concerned her or the much more serious events described below which constitute the elements of the offences.
Background
4In or about 2001, A.P. returned to Toronto from living in California with her three children (the third being son, W.P.2, currently age 22) after a marital breakdown. She had resided in Toronto in the 1990s and had met E.E. (currently age 57) who was godfather to the complainant.
5E.E. testified meeting A.P. after he came to Canada in 1992 in or about 1994. He has been employed since 1994 as a letter carrier along with part-time weekend work at a banquet hall. E.E. is a widower with a 33 year old daughter and grandchild as well as four siblings, one of whom, V.Y., is the mother of the complainant’s best friend, K.Y.
6E.E. and the P family began sharing an apartment with the relationship between he and A.P. evolving into a sexual relationship described by A.P. as, through a Tagalog interpreter, “MU” for mutual understanding that E.E. testified was synonymous for sexual intimacy and living “common law”. A.P. did not want the three children aware of the intimate nature of the relationship with E.E. which was apparently respected by him. He was acknowledged by the three children to be the disciplinarian of the two adults in the home.
7The relationship had become intimate by 2005 when the five of them moved (from an apartment, in the W […] and S […] area) to an apartment in the E […] and V[…] Park area and where the alleged criminal activity occurred.
8The layout and the accommodation at the apartment in the E […] and V[…] Park area included a bedroom shared by the boys, W.P.1 and W.P.2, a bedroom shared by the complainant and her mother, a smaller room used as a computer room with E.E. sleeping on a sofa bed in the living area which was against a wall common to W.P.1 and W.P.2’s bedroom. The living area was open to the kitchen and dining area as well as the front entrance.
9Despite not wanting her children to know about the intimate nature of her relationship with E.E., A.P. not only allowed E.E. to act as a father-like figure by limiting the children’s activity with regard to television and computer times and curfew but admitted having intimate relations with E.E. at the apartment in the E […] and V[…] Park area on the sofa bed after the children were supposedly asleep. This is noteworthy because, both W.P.2 (whom the parties acknowledged did not like or get along with E.E. because of his strict setting of rules) and E.E., confirmed an occurrence when W.P.2 came out of his bedroom after having gone to bed and observed his mother and E.E. being intimate. E.E. testified the nature of his relationship with the children changed after that and assumed W.P.2 had shared what he had observed with his siblings.
10It is clear something occurred in November and/or December, 2008 that upset or concerned the complainant. She related it to K.Y. who had her tell her brother, W.P.1 and the three of them related it to A.P. W.P.1 testified his mother “minimized it”. In cross-examination, W.P.1 added his sister was crying over what the complainant told her mother. It involved E.E. putting his hands on the complainant’s upper thigh. It may have included A.P. asking if the complainant had seen E.E.’s penis. There was no change to the relationship or living situation following what was reported to A.P. A.P. admitted the incident occurred but asked few questions, was scared, and didn’t do anything about it.
11There was also evidence from each of the P. children. E.E. admitted he would request and pay the children five dollars to massage his feet, calves and thighs on his sofa bed which would get sore from the walking and standing required from his job as a letter carrier and part-time weekend job at the banquet hall. This occurred on multiple occasions with each child, likely most often with W.P.1.
12By 2012, E.E. had purchased and the five of them moved to a house in the Pharmacy and S […] area with the down payment secured from a variety of sources including a ten thousand dollar contribution from A.P. The living arrangements involved bedrooms on the main level for the children and bedrooms in the basement area for E.E. and A.P. E.E. installed security cameras for the exterior perimeter and one that was motion activated inside at the side landing and stairs leading to the basement. The children were aware of the cameras.
13The actions of E.E. described by the complainant occurred while she was in Grade 6 around Christmas time (given she recalls a Christmas tree being in the living area) or in November to December, 2008 and involves three incidents. The first is when E.E. asked if she wanted a massage on her legs while they were sitting on the sofa bed watching television at night. They were alone in the room at the time although others were in the unit, including her mother. Both were clothed and E.E. proceeded to massage her legs while she was face down on the sofa bed. The complainant testified the massage was conducted in a way that E.E.’s thumb was pressing on her vagina. This felt “weird” and she does not know if he knew he was touching her vagina. Nothing was said between them about what occurred.
14The second incident also involves E.E. proposing and giving the complainant a massage on her legs while she was wearing pajamas. Again, this occurs while watching TV on the sofa bed and while others were at home and in their rooms. During the 10 to 15 minutes of massage, E.E. puts one or both his hands under her stretchy pajamas bottoms and began rubbing the complainant on the top of her vagina. Following this, E.E. goes to the washroom and the complainant sees him from the kitchen with his hands to his face unsure if he was smelling or licking them. This was “gross”. On this occasion she had been lying face up. Subsequently, while being dropped off at an indoor soccer game or practice, E.E. asked her if she liked being massaged which she shrugged off with a “sort of” response. She recalls him saying she had enjoyed it because she got wet and not knowing what that meant. He also asked if she wanted another massage and they could go to their previous apartment in the W […] and S […] area but she declined.
15At the E […] and V[…] Park location, while the P. family and E.E. resided on the main floor, E.E.’s brother, the brother’s spouse and two children resided in the basement.
16From the evidence of the complainant, a third incident began in the morning with her being awakened in her bed by E.E. kissing her on the lips and asking her if she wanted to watch TV on the sofa bed and to have another massage. She complied and while on her back was told to open her legs and move them back towards her body. As she recalls, he pulled her pants down and put his mouth on her vagina for “not that long” or about 5 of the 15 minutes this incident lasted. She thinks he also sucked her toes. Her mother and W.P.1 had gone to the W […] and S […] apartment to do laundry and W.P.2 was asleep in his room.
17From 2008 and until after the events in November, 2014, the five of them continued to reside together with the move from the apartment in the E […] and V[…] Park area to the house in the Pharmacy and S […] area in or about 2012. Both W.P.1 and W.P.2 testified that during this time on at least one occasion, E.E. was heard to describe the complainant as looking “sexy” when attired in a fancy purple dress.
18On Sunday, November 23, 2013, E.E. testified that he was at home in the basement doing laundry in the afternoon and was planning to leave around or shortly after 4:00 pm for the 45-60 minute drive to Mississauga for a service club meeting. A.P. and W.P.1 were working and not home. The complainant came downstairs and said to E.E. that she was going out for pizza as a lunch meal for which he gave her ten dollars. The complainant returns and advises E.E. of that from the top of the stairs. E.E., having previously purchased a quantity of lip balm from Costco, decided to give one to the complainant so he goes upstairs and knocks on the complainant’s bedroom door. She says to “wait a minute” which was unusual and only opened the door part way through which E.E. could see someone under the covers of her bed but not that person’s face. He asked who that was and is told that it was her female friend that lived nearby, M. As he returns to the basement, he observes men’s shoes in the front doorway and proceeds to review his surveillance recording of the front entrance and sees a male entering shortly after the complainant had entered and upon the complainant motioning him in.
19As the adult who set the rules for the children to follow and the owner of the premises, no boyfriends (or girlfriends for the boys) were allowed to be brought inside the home. E.E. admits he became very angry because this was being done without his knowledge. He admits running upstairs and barging into the room, seeing the complainant and the male having oral sex, the complainant being clothed and the male with his pants down. E.E. jumps on the bed and begins pulling the boy’s hair, slapping his face, and telling him to get out. The complainant was yelling “Don’t tell my Mom”. W.P.2 came from his room and is standing at the door and E.E. admits asking W.P.2 to help beat up the young man.
20While the male is leaving, the complainant continues to plead for her mother not to be told and then states either “Did you” or “You know what you did to me when I was 11 years old”. E.E. claims he responded “What do you mean?” Instead, W.P.1 and W.P.2 testified E.E. responded with “You liked it”.
21W.P.2’s credibility on this latter statement is seriously undermined. He acknowledged this statement of “You liked it”, was something important that stuck in his mind as a confession of E.E. doing something bad. However, he admitted in cross-examination that he failed to mention it either in a statement to the police or at the preliminary inquiry.
22The complainant follows E.E. downstairs at which point he admits saying to her in a loud enough voice for W.P.2 to hear at the top of the stairs that she was a slut and a whore and had betrayed he and her mother. E.E. admits hearing W.P.2 yelling down to him to not talk to his sister like that and for the complainant to come upstairs. She does so and E.E. leaves for his meeting locking the door to his area in the basement.
23W.P.2 began to inquire about details of what his sister meant. She requests they call K.Y. who comes over and W.P.2 discloses a portion of what she alleges had previously occurred. This greatly upset W.P.2 who proceeded to break into E.E.’s area downstairs and smash his television and computer. Later that evening, the three of them are joined by the complainant’s mother and K.Y.’s mother for discussion which did not result in the police being called. The discussion was about the issues of the complainant having a boyfriend over, W.P.2 damaging E.E.’s computer and television as well as the complainant’s allegation of sexual assault when she was in Grade 6. The complainant stays at K.Y. and V.Y.’s place that evening and for some time thereafter.
24The police are not called that evening with A.P. acknowledging a concern that W.P.2 would also be charged.
25The complainant pursued with her teacher at school re-writing a test that she had missed the next day because of these events. She was directed to speak to the vice-principal, then the principal at the school and finally, a social worker. This occurs in January, 2015 and the complainant is referred to the police which results in this proceeding.
26E.E. claims he was not advised of what the complainant is alleging before he was arrested but admits his sister, V.Y. mentions it to him at some point.
27There are three texts sent by E.E. to the complainant on December 8, 12 and 21 which were not responded to. They stated:
December 8: I never expected that this would have happened. I am deeply sorry for hurting your feelings, but you know how I feel, you know how much you hurt me but that does not mean that I do not love you anymore, I will always love you.
December 12: Do you want me to drop you no questions asked, no talking, let me know what time.
December 21: Communication is the art of understanding and being understood, when can we talk private and confidential.
28As part of A.P.’s evidence, she testified continuing to reside with E.E. and asking him when at a coffee shop whether he did what the complainant was alleging. In cross-examination, she testified E.E. admitted doing it “once” (as opposed to sometimes as suggested in her evidence in chief.) Her evidence about being shocked and never wanting to see him again is undermined by E.E.’s evidence that they continued to see each other secretly and romantically until July, 2016.
29Regarding the text messages to the complainant, E.E. testified they were made with the permission of A.P. He explains the first text on the basis he regretted his actions but was hurt by the complainant’s disobeying the rules and was expressing his affection as a father-like figure. The second text was an attempt to be helpful and resume things he had done in the past. The third text was his effort to learn from the complainant directly what she was alleging as he had not been told by anyone else at this point.
Analysis
30The correct approach is to follow the direction given by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. The first part of that approach is to address whether the evidence of E.E. is to be accepted. If accepted, more particularly his complete denial of the three incidents described by the complainant in November or December, 2008, then he should be found not guilty. I was not so persuaded and do not accept his denial of the incidents. His evidence of denial is undermined by the following:
a) his admission that he would pay five dollars to the children to massage his calves and thighs which is quite troubling;
b) his reaction on November 23, 2014 to finding the complainant and her male visitor in an intimate situation in her bedroom. He attacked the male, rather than the person who had violated one of his rules, particularly given his evidence that the rule was to encourage the completion of the children’s studies and not getting (someone) pregnant. This is reinforced by his asking W.P.2 to join in beating up the male visitor;
c) his berating of the complainant downstairs after the male visitor was gone so loudly it was heard by W.P.2 at the top of the stairs;
d) his decision to leave the home so quickly after the incident for a service club meeting;
e) the wording and sending of the three texts to the complainant on December 8, 12 and 21, 2014; and
f) his admission of calling the complainant “sexy” on at least one occasion. The use of that kind of adjective to describe the appearance of a female teenager to whom he is arguably in a position of authority is extremely enigmatic and, as described by counsel, completely inappropriate.
31In my view and for the reasons just stated, I do not believe him.
32Having not accepted the accused’s denial of what is alleged to have occurred, the second part to address is whether there is a reasonable doubt based on his evidence. In my view and based on the reasons just stated, I do not have a reasonable doubt.
33Finally, I must address whether the Crown has satisfied its burden to prove each of the elements of the offence beyond a reasonable doubt. This involves consideration of all of the evidence.
34Given the age of the complainant and the nature of the offences, it is important (both currently and at the time the alleged offences occurred) to be cautious and sensitive about how victims of crime act and react. The complainant clearly experienced something inappropriate in 2008 that required a meeting with her mother after it was related to her best friend who persuaded her to tell her brother. She had already coped with the situation for many years which fortunately did not recur at the level which I have assessed and must determine. It was acknowledged she was able to be appropriately alone with E.E. between 2008 and 2014 on many occasions and, for example, he assisted her in learning how to drive after she turned 16 years of age by the complainant driving E.E.’s car with him in the front passenger seat. It is inappropriate to have preconceived notions about what type of demeanor or behaviour should reflect whether actual events occurred, have been imagined or fabricated the latter usually for some type of gain.
35By November of 2014 at the age of 17, she had clearly developed into a young adult, post puberty and with a developing awareness of what is or is not appropriate sexual conduct.
36I have concluded, after long and careful thought and, given all of the evidence, that the following factors are favourable to the accused and raise a reasonable doubt as to the guilt of E.E. as to the three incidents described by the complainant:
the location of where the incidents occurred being the sofa bed in the living area which was open to being easily and suddenly observed, and as E.E. had previously been observed being intimate with A.P. by W.P.2. This applies particularly to the third incident when E.E. allegedly moved the complainant from a more private place, her bedroom, to the sofa bed;
the complainant’s admission that she used her allegation of “You know what you did to me when I was 11” as an attempt to persuade E.E. not to tell her mother what he had seen. I find that troubling and it casts a pall over her evidence as a whole;
the submissions of both counsel for the Crown and counsel for E.E. that W.P.1 was the most reliable and an even handed witness and that he did not give evidence or recall the details of the incident in 2008 beyond hands on his sister’s upper thigh as part of what he referred to his mother when his sister and K.Y. were in Grade 6. This strikes me as compelling given that he was more than four years older than his sister or was 15 years old at the time; and thus he was more likely aware of what constituted inappropriate sexual touching of an 11 year old;
while A.P. appears to have chosen the side of E.E. over that of her daughter, I do not accept that it would be to the extent she would have maintained the status quo in the household had she been told of the three events presented in this trial, particularly the third and most serious alleged sexual assault in 2008;
similarly, K.Y. has chosen the side of her best friend over her uncle to whom she acknowledges she was not that “super close”.
Conclusion
37This is a very discomforting situation, particularly giving the requirements of the law. There are aspects of uncontroverted evidence which certainly raised the possibility and likelihood E.E. did what the complainant has alleged. And, to the contrary, E.E. has unequivocally denied what is alleged.
38The law does not require me to choose one version over another. Rather, and after giving due consideration to all of the evidence, the test remains whether the quality of the evidence satisfies me that what allegedly occurred did so occur beyond a reasonable doubt. On that legal test I am not so satisfied and, as a result, I therefore find E.E. not guilty of both charges.
Mr. Justice G. Dow
Released: March 23, 2017
CITATION: R. v. E.E., 2017 ONSC 1307
COURT FILE NO.: CV-16-10000119-0000
DATE: 20170323
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
E.E.
REASONS FOR JUDGMENT
Mr. Justice G. Dow
Released: March 23, 2017