Court File and Parties
COURT FILE NO.: CR – 20/16 DATE: 20170421 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – W.R.
Counsel: Lynette Fritzley, for the Crown Shawn Swarts, for the Accused
HEARD: April 19 and 20, 2017
Restriction on Publication
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of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.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.
The Honourable Justice R. J. Harper
[1] E.D. was born on […], 2001. At the time of the alleged incidence she was 13 years old. On Sunday April 27, 2014, E.D. went for a sleepover with her friend T.R.. The sleepover was at the residence of the accused W.R. who is the grandfather of T.R.. The residence is located at Q[…] Street East, St. Williams, Norfolk County, Ontario.
[2] W.R. was born on […], 1947. He was 67 years old at the time of the alleged incidents. His granddaughter, T.R. had been staying at his residence for summer vacation. She was 14 years old at the time of the alleged incidents.
[3] On July 27, 2014, E.D. arrived at Q[…] Street East at or about 8:00 p.m. She and her friend T.R. enjoyed activities during the evening. They watched movies and they did consume alcohol that evening. The amount of alcohol they consumed is a disputed fact. E.D. stated that she had a rough year in school that year. She and her friend T.R. planned this sleep over and part of that plan was to “get wasted.” E.D. had never experienced drinking alcohol to any significant degree at this point other than a glass of wine and a mixed drink at a wedding that she thought tasted like juice.
[4] T.R. was more experienced. She admitted to the contents of a Facebook message stream between E.D. and her on the night before their sleep over. During the exchange T.R. asked E.D. if she blazed. E.D. did not know what that meant. T.R. explained that was smoking pot. When E.D. expressed she did not, T.R. asked her if she wouldn’t mind that she did. However, she stated that she did not have any. They both talked about what alcohol each other may have in their homes. E.D. asked about vodka and T.R. confirmed that she had Vodka. T.R. asked if E.D. had any to bring and E.D. said there was some Bacardi.
[5] When E.D. arrived at W.R.’s home that evening, she was greeted by T.R.. W.R. was napping at the time. E.D. stated that T.R. showed her her bedroom upstairs. That is where she left her bags. After a short period of time, W.R. got up from his nap and T.R. got some money from him in order for the two girls to go to the store and get some snacks and movies. They went to the park, then to the store and returned to W.R.’s home.
The Consumption of Alcohol
[6] There was a significant amount of evidence that related to the type of alcohol and the quantity of alcohol that was consumed in the evening hours of July 27, 2014 and early morning hours of July 28, 2014.
E.D.’s Version
[7] According to E.D., after she and T.R. returned from the store in or around 9 p.m. on July 27, 2014, W.R. showed her how to properly hold a guitar. The three of them then sat at the table, had some chips and drank alcohol. E.D. stated that T.R. poured a vodka drink called “Sour Puss” into shot glasses for her and E.D. They drank that while W.R. drank beer that he poured from a pitcher into a mug. E.D. stated that W.R. had 2 cups of beer. E.D. stated that she and T.R. were keeping track of how much they drank by marking it down. She stated that she had 11 shot glasses that were half full while T.R. had 13. E.D. testified that her 11 half full shot glasses amounted to about 8 or 9 ounces of alcohol. Assuming they were half shots that would more properly amount to 5.5 ounces of alcohol.
[8] That is a significant amount of alcohol for anyone. It is even more significant for a 13 year old who had little to no experience with drinking alcohol. E.D. admitted that she was intoxicated. She stated that she was heavy in the head. She denied that she was dizzy or stumbling or that she had any difficulty walking. She also stated that she was not black out drunk. According to E.D., she and T.R. watched a movie called “The Conjuring”. It was a horror movie that she did not like. It scared her. Her and T.R. then went outside and had a hot tub. That lasted about 10 minutes and they came back in a started to watch another movie. They went to bed at approximately 1:00 a.m. on July 28, 2014. From her testimony the consumption of alcohol was over a period of approximately 4 hours. I find that her consumption of alcohol did not affect her reliability.
T.R.’s Version
[9] T.R. testified on behalf of her grandfather W.R.. She agreed that E.D. and her had a planned to get “wasted” that night. However, she did not agree that they did in fact drink in order to get wasted. She stated that they drank Barcardi Breezers that they poured into glasses two regular glasses. She stated that they only had a couple of glasses of that drink. According to T.R., her grandfather W.R. drank whiskey and Pepsi that he poured into a glass at the table. T.R. denied that anyone was drunk.
W.R.’s Version
[10] W.R. testified that he did allow the girls to drink that night. He stated that they only had a couple of drinks of Barcardi Breezer from a 26 ounce bottle that was kept in the fridge. He stated that they did not have much to drink and that there was still some left in the bottle that was kept in the fridge. He denied that he drank beer. He stated that he only drinks whiskey and soda. He denied anyone was drunk that evening.
[11] For reasons that I will expand on later, I accept E.D.’s version of what alcohol was consumed that night and the quantity of alcohol. Some of my reasoning is as follows:
a. E.D. testified in a straightforward manner. She was clear about her evidence and she was fair. She agreed to suggestions when it was appropriate and she remained steadfast when and consistent on the material facts. b. In contrast, both T.R. and W.R.’s testimony was inconsistent on many of the material issues and vague. Their memory was lacking in areas that it should not have been lacking. c. I find that W.R. allowed T.R. and E.D. to consume alcohol in his home on July 27, 2014. E.D. was only 13 and T.R. was 14. E.D. was also permitted to smoke marijuana as long as she did it outside of the house. There was no evidence she smoke marijuana that night. This improper permissive attitude on the part of W.R. allowed for T.R.’s open suggestion to E.D. that they could get “wasted” even with her grandfather in the home. d. The Facebook messages between E.D. and T.R. made it clear that they both intended to carry out their plan to drink to excess. e. I do not find that it is material that E.D. described W.R. as drinking beer from a mug. The material fact is that he drank with the children whether it was beer or whiskey and Pepsi. f. Between July1, 2015 and July 21, 2014 when W.R. was arrested, both W.R. and T.R. admitted that they had a discussion about “getting their facts straight”. Both admitted that the discussion was about the alcohol and whether marijuana was used. Their discussion was geared to ensure that neither would say anything to get W.R. in trouble at least with respect to allowing two minors to consume alcohol.
The Sleeping Arrangements
[12] E.D. testified that she and T.R. slept downstairs in a bedroom beside a bathroom that was a shared bathroom to the bedroom that W.R. slept in. E.D. was adamant that is where they slept. Although they originally had their clothes in T.R.’s bedroom upstairs they took them down later and slept in the downstairs bedroom as it was cooler than upstairs. She stated that T.R.’s room only had a fan.
[13] Both T.R. and W.R. testified that E.D. and T.R. slept upstairs in T.R.’s bedroom. They were both adamant that neither E.D. nor T.R. slept downstairs in the bedroom beside the connecting bathroom with W.R.’s bedroom.
[14] For reasons that I will expand on later, I accept the evidence of E.D. that she and T.R. slept in the downstairs bedroom.
The Sexual Allegations
[15] As referred to earlier, E.D. was adamant that she was sexually touched by T.R.’s grandfather W.R. on three occasions during the early morning hours of July 28, 2014.
[16] E.D. stated that she went to sleep immediately. Partly because she was so tired and partly due to the alcohol. She stated that she could see into W.R.’s bedroom. She described a TV in the corner of his bedroom and she could see a light similar to a light coming off a tablet. W.R. denied he had a TV in his bedroom. He also denied he had a tablet. He admitted he had a lap top computer but denied that he ever used it. He claimed that T.R. used it.
[17] E.D. also stated that the only entrance to W.R.’s bedroom was from the other bedroom and through the bathroom. W.R. and T.R. denied this. They stated that there was another entrance from the hall area. E.D.’s evidence was that there was no other entrance from the kitchen. Whether there was another entrance to that bedroom is not material to the issues that I must decide. Details of the layout of the W.R.’s home are only important as they relate to whether the layout would make it difficult if not impossible for W.R. to enter the bedroom that the girls were sleeping in in order to do what E.D. alleges. Otherwise it is a peripheral detail that is not significant to my determination.
[18] It is also of no consequence to me whether there were two windows that were separated by a wall or one window with no separation. The issue for me is whether there was a window that could let in sufficient moon light for E.D. to make the observations that she did.
[19] It is of no consequence whether there was an aquarium in T.R.’s bedroom upstairs. E.D. insisted that there was along with a snake or a lizard. W.R. and T.R. deny there was either an aquarium or any reptiles. This is not a case that involves the issue of whether E.D. was ever in W.R.’s home. She was there at the material times. The issue of the existence of an aquarium and or reptiles is also a peripheral issue. This is young girl who was 13 at the time. I do not find the existence or no existence of these items as relevant. In the same manner I do not find that W.R. stated that he did not have TV or VCR for the children to watch a movie and that is why they had to use the lap top. T.R. testified they watched the movie on the TV and DVD in the home. This is not relevant to the material issues I must decide.
[20] The testimony surrounding the sexual touching is the central issue. E.D. claimed that she was awakened by W.R. standing over her. E.D. testified that he put his hand by her color bone and then slid his hand over her right breast and fondled it. She pretended to be asleep. This only lasted about 30 seconds and he then left. As soon as he left, E.D. claimed that she woke up T.R. and told her something happened. According to E.D., T.R. said that she was having a bad dream and she should go back to sleep.
[21] E.D. testified that she was awakened again by W.R. putting his hand in her top again and fondled her left breast. Once again this lasted for less than a minute. He left and E.D. woke up T.R. again. T.R. told her again to try and sleep and that she was just dreaming. E.D. stated that she was too scared to tell her what had happened. She went back to sleep again.
[22] According to E.D., W.R. did the same thing a third time. She moved her arm to stop him and he left again. Once again she woke up T.R. and this time T.R. offered to get her some water. E.D. said no and they both went back to sleep.
[23] E.D. got up at around 9 or 10 a.m. She never told T.R. what she claimed happened to her. Her father came and picked her up at approximately 11 a.m.
W.R.’s Testimony
[24] W.R. denied that he touched E.D. in any sexual manner. His counsel stated in his closing submission that although W.R. was not the best of witnesses he should be believed about his denials of sexual touching of E.D.
[25] I agree that W.R. was not the best of witnesses. I found him to be evasive and combative with the Crown attorney. He had difficulty recalling many events. At various times in his cross examination he made the following comments:
a. I can’t recall when they did anything that night; b. I can’t even remember who went to bed first or who woke up first; c. He did not remember when the hot tub was used; d. He asserted that he was frustrated and that the Crown was trying to twist what he said. He attempted to ask questions of the Crown Attorney; e. He claimed that E.D. and T.R. were watching a movie on the lap top. T.R. testified they watched the movie on a TV with a DVD. W.R. denied that he had a TV or VCR.
[26] W.R. testified that he had many health problems. His problems included that he has erectile dysfunction and that despite medications such as Viagra and penile injections, he still cannot get an erection. In his testimony he flippantly stated “what can’t get up can’t get out.” I find that W.R. was completely inappropriate to make such a statement while giving testimony in such a serious case. There was no evidence presented that his lack of ability to get an erection affected his ability to touch a 13 year olds’ breasts.
[27] In the earlier part of his testimony, W.R. denied that he had talked with T.R., in his words “ever since this nonsense started.” He stated that he did not talk to her until recently. He later admitted that in July 2015 he called T.R. on the phone in order to talk to her to “get their stories straight.” He stated that only meant to get their stories straight about how much alcohol was drank and the fact that there was no marijuana.
Testimony of T.R.
[28] T.R. is now 17 years of age. When counsel went to get her from the hallway, it could be clearly heard in the courtroom someone yelling that she “can’t do it and I can’t go in there.” She did come into the court room assisted by counsel for Mr W.R.. I explained on the record that her yelling could be clearly heard in the court room. When she was being led into the courtroom, she was crying and obviously upset. She stated that she wanted to testify by closed circuit like she did the last time. Defence counsel pointed out that as of yesterday she did not feel that she needed the closed circuit TV process. I pointed out that that could be arranged. However, that courtroom was being used at the moment and we could hold the matter down until it was available. T.R. insisted that she did not want to wait and she wanted to proceed with her testimony. I asked again and she insisted she was able to proceed.
[29] It is clear from T.R.’s evidence that she loves her grandfather deeply. She agreed that he has been the only one who had been consistently there for her in her life. She admitted that she would never want to see him hurt. She wants to move back in to live with him at this time. She stated that over the past little while she has been visiting with him and staying overnight. She denied, however, that she talked with him about the allegations in this case at any time. I find her denial not believable.
[30] T.R. also had a problematic memory. She stated that although she recalled drinking Bacardi Breezers that night, it could have been possible they drank the vodka drink called Sour Puss. She admitted that possibility only after she was shown the statement she made to police. She also stated, after she was shown her statement, that she could not recall how much E.D. had to drink that night. Earlier she had testified that E.D. only had 2 glasses of Bacardi Breezer.
[31] T.R. stated in cross-examination that she was not good with details of that night. She did not know when E.D. came to the house. She did not know if anyone had dinner. She stated that maybe they drank the drink Sour Puss and maybe they and 2 or 3 drinks.
[32] T.R. stated that she did not remember waking up on the night in question. Although she had very poor memory on most of the details of that night, she insisted that E.D. and her slept in the bedroom upstairs.
[33] W.R. was asked if T.R. asked him about the allegations of sexual touching that E.D. was accusing him of. He stated that he could not recall if she asked him. He also stated that he did not believe she did but he does not remember her talking to him.
[34] He at first stated that he did not recall telling the police officer, who came to arrest him, that he had a bit of an idea why he is being arrested. He was confronted with his police interview that demonstrated that he told the police he had “a half-assed idea of why he was being arrested.” He then testified that the “half-assed idea” he had was that he knew he could not be around marijuana because of the Hydromorhpine he took for pain and that is what he thought it was about. I do not believe him in this regard.
[35] There was no evidence that anyone was using marijuana the evening of July 27, 2014. T.R. told E.D. she did not have any and E.D. did not use marijuana. His explanation does not make any sense under those circumstances.
[36] W.R. testified that when he called T.R. to “get their stories straight”, he was talking about the amount and what alcohol was consumed on July 27 and 28, 2014. When asked specifically if T.R. told him about the allegations against him, W.R. responded, I don’t remember, could be possible. He then went on in his testimony to state that he is poorly educated and 70 years old and can’t remember things very good. He only recalled talking to her about the drinking and marijuana as “he assumed she smoked.”
[37] W.R.’s testimony with respect to the bedroom upstairs was not consistent with his claim that T.R. and E.D. slept upstairs because that bedroom had an air conditioner. When asked in cross-examination about why he slept downstairs, he stated because that same bedroom was too hot in the summer and it was cooler and more comfortable in the downstairs.
[38] T.R. loves her grandfather. He is the only person who had been there for her. She wants to live with him now. She has been spending overnights at his home in recent months. Her testimony that she has not talked about the sexual touching allegations is not credible. I find that W.R. and T.R.’s talks to “get their stories straight” involved more than what and how much alcohol was consumed.
[39] T.R. testified that the only thing that W.R. discussed with her about the trial was that she should tell the truth and if she could remember things that was okay and if she could not remember things that was okay too. I find that both W.R. and T.R. did not remember things when it was convenient and remembered things that would only help W.R..
[40] I do not believe the testimony of W.R.. I do not believe the testimony of T.R.. I find that E.D.’s evidence with respect to the sexual touching was consistent. She was not shaken in cross-examination on the core issues.
[41] E.D. was concerned that she may be dreaming at the time that the events occurred and she rubbed her arm on the first occasion. She was not dreaming. On the second occasion she pinched herself. She was not dreaming. She stated that she was 100 percent sure that the sexual touching as described had occurred as she described it. She describes three incidents in which W.R. touched her breasts. She was 13 years old at the time. She was scared. Nothing like that had happened to her before.
[42] I do not find that her description of whether he attempted to remove her bra or he was trying to move the straps over to the side to be inconsistent. Once again she was a 13 year old girl and nothing like that had ever happened to her before.
[43] She woke her friend up after each incident, not to tell T.R. the specifics of what her grandfather did to her, but to inform her of her being awake and upset. She did not want to lose her friendship and she stated that she did not want T.R. to spread rumours about her. E.D. was already going through inner turmoil at losing her other friends from school who had graduated. She had been cutting her herself. She had been bullied at school. She did not tell her friend T.R..
[44] She told another friend who told the Children’s Aid Society. That is how this matter moved forward. After the Children’s Aid Society became involved, they contacted the police who then contacted E.D. T.R. heard the allegation from someone else. T.R. contacted E.D. by Facebook message and her message to E.D. was exactly what E.D. feared it would be if she told her. T.R. called E.D. a “cunt” and a liar. T.R. went on to say that her “grandpa didn’t do shit.” T.R. added the following in that message stream:
T I wanna figure this out first. ED trust me the last thing I want to do is tell my parents, I know how much your grandpa means to you And another reason to believe me is you saw how shy I was the next day T Yeah I know (sad face) I believe you. I’m just so confused ED I’m sorry this is really awkward T no it’s okay. Thanks for telling me ED ya I would be confused too T I don’t know how to handle this, I’ll try and talk to him.. but if you can just forget about it ever happening, and like if we wanna hangout it can be at your house. But yeah, just don’t say anything about it. And try to pretend If didn’t happen.
The Law
[45] I must instruct myself on the appropriate principles to be applied. Counsel for the defence submitted that this is a very serious case and could result in a minimum of 1 year incarceration. I cannot consider sentence or punishment when considering whether W.R.’s guilt or innocence. Nor can sympathy or emotion be a factor in my determination. My task is to review all of the evidence according to the governing principles.
[46] The Ontario Court of Appeal in R. v. J.J.R.D., 2006 ONCA 40088. In that case, the court commented on the circumstance where even though the trial judge reviewed certain flaws in the complainant’s testimony, a review by the court of the totality of the evidence allowed for a proper conviction beyond a reasonable doubt. The court stated:
[53] The trial judge’s analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant’s denial because stacked beside A.D.’s evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence. (emphasis mine)
[47] In R. v. W.(D.), [1991] 1 SCR 742, 1991 SCC 93, the Supreme Court of Canada set out the principles to be followed when considering the issue of credibility and the burden of proof. The Court stated:
In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. See R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in R. v. Morin, supra, at p. 357.
Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle.
[48] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.) supra, at 409 per Cory J.; Avetsyan v. The Queen (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.) at paras. 20-22, per Major J.
[65] As the Ontario Court of Appeal in R. v. Hull, 2006 ONCA 311 at para. 5 noted:
W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit the trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses.
[66] I must assess the evidence of the complainant and the defendant in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses. The Court of Appeal in Hull continued:
However, such authorities do not prohibit the trier of fact from assessing an accused’s testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.
[49] It is important to emphasize that my decision is based only on the evidence before me properly presented at this trial. It is not enough to have a general or even strong suspicion that the events complained about happened. It is necessary to prove it beyond a reasonable doubt. In this case, given my reasoning that is set out above I am satisfied that the Crown has proven the case beyond a reasonable doubt.
[50] I find that W.R. touched E.D.’s breasts three times in the early morning hours of July 28, 2014 in the manner that she described in the evidence. She was 13 years old at the time. I find W.R. guilty on:
Count 1, on or about the 28th day of July, 2014, at Norfolk County, in the Province of Ontario, he did sexually assault E.D., contrary to Section 271 of the Criminal Code of Canada.
Count 2, on or about the 28th day of July, 2014, at Norfolk County in the Province of Ontario, he did for a sexual purpose touch E.D., a person under the age of sixteen years, directly with a part of his body, to wit: his hand, contrary to Section 151 of the Criminal Code of Canada.
[51] In the result there will be guilty verdicts registered.
The Honourable R. J. Harper