Court File and Parties

COURT FILE NO.: 14197/15 DATE: 2017-05-17 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – G.S. Defendant

COUNSEL: D. Bronowicki, for the Crown T. Balka, for the Defendant

HEARD: April 10, 11, 12, 13/ 2017

Justice: B.A. Glass

There is an Order Banning Publication of Any Information Identifying the Complainant

Reasons for Judgment

[1] GS (defendant) is charged with sexual assault contrary to section 271, touching for a sexual purpose directly or indirectly with a part of his body the body of a person under the age of 16 years contrary to section 151, and for a sexual purpose exposing his genital organs to a person under the age of 16 years contrary to section 173 (2) of the Criminal Code of Canada.

[2] JH (complainant) provided a video-recorded statement to the police. This statement was played and JH adopted its contents as being true. Both legal teams consented to the statement being made an exhibit for this trial.

[3] The Defendant’s wife operated a daycare facility at which the complainant and her brother attended. The parents of these children worked in Toronto and therefore worked long hours. The children were up early in the mornings and taken to the daycare. There were other children there too. Because the parents of the complainant and her brother had to attend their jobs in Toronto, they were the last parents to pick up their children.

[4] When the complainant was 7 years old, she told her mother about some activities with the Defendant after which the Children’s Aid Society and the police were contacted. Mother had told JH (complainant) that she would report to the police.

[5] The complainant will be referenced by initials, JH (complainant).

Details of Complaints

[6] JH (complainant) testified that she was not to keep secrets from her parents. She divulged the alleged events before the school year began in September 2015 after being questioned extensively and persistently by her mother. JH (complainant) had been reluctant to describe events and mother indicated that she would be angry if the child did not tell her of events. When the child advised her mother about the Defendant touching her over or under her clothing in the area of her vagina and the Defendant lowering his pants to expose his penis to her, mother screamed and shouted that she was calling the police to which the child became distraught because she did not want such a development to occur.

[7] The child had provided a video statement to the police later and her description of touching her vaginal area either above or below the clothing was given in conflicting ways. She said a different way of touching at the preliminary inquiry. At the trial, she stated touching was under the clothing.

[8] The brother of JH is ZH (complainant’s brother). He did not see any of the alleged sexual activities. He was at the same daycare facility with his sister.

[9] The Defendant denied any sexual activity with the complainant or any child. He did not pull down her pants to touch her vagina. He did not lower his own pants and expose his penis. His wife was the person who operated the daycare business for over 25 years. When the Defendant lost his job because of layoffs, he had trained to drive trucks and again was laid off. As the family finances suffered, the wife of the Defendant got a job at a call centre to work nights Friday, Saturday, Sunday and Monday. She would be finished work early in the morning and be home before the children came in the morning before school. If she was late, her adult daughter was living in the home and would be there to assist the children. The Defendant was not there alone with the children. The wife would get sleep during the day when the children were at school.

[10] The complainant testified about playing a game called “Would You Rather”. She said that the game led to the Defendant showing her his penis by pulling down his pants and that he pulled down her pants and touched her vagina. This was denied by the Defendant.

[11] The complainant stated that she and another child saw the Defendant’s penis when he was in the downstairs washroom. He had gone to that room, the door was ajar and they watched. Also, JH (complainant) said that the Defendant knew they were watching him.

[12] With the Defendant being there after being laid off for a second time, it was not uncommon that he would answer the door when the kids arrived, but his wife was in the house virtually all the time and if not their daughter was present.

[13] Later in the days, his wife was in the house. Again, it was not uncommon for the Defendant to answer the door when parents arrived to pick up their children.

[14] The wife is KS (wife of defendant). When she began the call centre job, she testified that she provided all the parents with a letter explaining her job and that their daughter would be present if she were delayed being there.

[15] The mother of JH (complainant) accepted that the Defendant told her about his wife taking courses. That was after she denied being told. During cross-examination she accepted that she was told by the Defendant. Mother said that she did not receive a letter from the wife of the Defendant.

[16] The wife of the Defendant was informative and non-evasive. She described running the daycare business and also the way she took courses for creating websites for their church the call centre job as well as her work hours and the persons at the house when the children arrived in the mornings and at the end of the day. I believe her testimony.

[17] In addition to testifying at the trial, JH (complainant) had provided a video-recorded statement to the police. This was played during the trial and adopted by the complainant pursuant to section 715.1 of the Criminal Code.

Analysis

[18] I have a concern that the claimed activities did not occur at all with the Defendant because often in her testimony, JH gave conflicting descriptions of whether her pants were down or up when she said the Defendant touched in the area of her vagina. One time she said he touched her over her clothing and another time under her clothing. JH (complainant) said that GS (defendant) got her to touch his bum but then accepted in cross-examination that the area of touching was in the hip area only. The conflicting descriptions came when she spoke to her mother, when she spoke to the police and then at the preliminary inquiry and the trial. Further, the child’s statement is really the mother’s statement after much prompting coupled with improper police prompting when she provided the video-recorded statement.

[19] The mother of JH (complainant) is CA (complainant’s mother) and she reacted in a highly emotional way when the discussion with JH (complainant) occurred. JH described her mother as screaming and shouting. I think that the way mother reacted and questioned JH (complainant) led to intimidating the child to say what she thought her mother expected. When mother told JH (complainant) that she was calling the police, the child became emotional not wanting that to occur. She was described as being upset and not wanting GS (defendant) to get into trouble.

[20] Mother denied calling the police and claimed that Children's Aid Society was the agency to make the contact. I conclude that she told her daughter that she was intending to call the police though.

[21] One might not be surprised at a parent being upset about such allegations regarding her child, but one would think that a parent would try to control herself for the sake of the child’s mental well-being. That does not appear to have happened here.

[22] The police interview has features that are concerning as well. There is no doubt that the officers worked at remaining calm and encouraging the child to tell them what had happened to her, but they dwelled on telling the child that they were proud of her for talking and that her mother was watching as she talked to each of the two police officers. That has the potential of intimidating a child of 7 years to repeat what she told her mother after her mother had become so extremely emotional. I have no doubt that mother did become emotional taking into account her demeanour when testifying at this trial. I do not think mother was trying to be harsh or mean toward her daughter or the Defendant, but she appears to be a person who is prone to become emotional quickly. When this happens, it has the potential to influence the complainant to say whatever she thinks her mother or the police want to hear.

[23] The Defendant denies that any of the alleged unlawful sexual activity with JH (complainant) occurred at all. His wife was there virtually all the time the children were there. The only times she might not be were early mornings if she was delayed at work, but the couple’s adult daughter was there. Yes, GS (defendant) answered the door and let the children into the house often. He stated that he did not engage in any sexual activity with JH (complainant), including not pulling down her pants or touching her vaginal area either over or under her clothing or exposing himself.

[24] GS (defendant) was cross-examined extensively and thoroughly. Any inconsistency was of a minor nature and clarified by his wife, KS (wife of defendant). For example, details of the call centre job or hours of work or notice to parents was information more in the knowledge of KS (wife of defendant) and she provided it. GS (defendant) was not shown to be giving significant conflicting testimony or contradictory evidence.

[25] I take into account the reasoning set out in R. v. W.(D.), (1991), 1 S.C.R. 742. I do believe the Defendant and his wife. Their evidence does create a reasonable doubt. The Crown’s case is not proven beyond a reasonable doubt. If the Crown case had been overwhelming, then W.(D.) has a 3 part consideration whereby at the second step if the defence evidence were not believed but it raised a reasonable doubt, the trial court would be obliged to make a finding of not guilty. This case does not advance to the second stage of W. (D.) though because I am not persuaded that the complainant’s testimony can lead to a decision that would be reliable or believable.

[26] This is not a decision whereby a court chooses one side or the other. Rather, the total evidence is considered and when done, I am left with a decision that the Crown has not proven the allegations beyond a reasonable doubt.

[27] A child is not expected to give evidence as if she were an adult. However, her evidence must have a core message of criminal activity conducted by an accused person. Here though, the message was the mother’s message created after she became extremely distraught. The child’s statement was again affected by the police officers pumping her to repeat what she had told her mother, rather than asking her to tell them what had happened. Telling the child that her mother had been watching her talk to the police becomes intimidating for the child.

[28] I conclude that when JH (complainant) asked mother about secrets, mother jumped to conclusions and put words into the mouth of the child. Doing so created a statement of the mother rather than JH (complainant).

[29] I believe the defence evidence that no unlawful or improper criminal activity occurred between JH (complainant) and GS (defendant).

[30] With the sexual assault allegation, I conclude that there was no proven contact for a sexual purpose. With the sexual interference count, I find that there was no proven contact for a sexual purpose. With the allegation of exposing his genital organs for a sexual purpose, I determine that there was no such activity.

Conclusion

[31] The crown has not proven its case beyond a reasonable doubt.

[32] All counts are dismissed.

Note: This decision in writing is the official Reasons and takes precedence over the oral reasons read into the record in court.

Justice B.A. Glass Released: May 17, 2017