COURT FILE NO.: CR16-050-0000 DATE: 20170518

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Peter Leger, for the Crown

- and -

K.R. Danielle Landry, for the Accused Accused

HEARD: May 12, 15 & 16, 2017

REASONS FOR JUDGMENT

Conlan J.

I. Introduction

The Issue to be Decided

[1] K.R. is charged with sexually assaulting and interfering with a young person, M.B. Did he do it? The only issue is whether the alleged events actually occurred.

The Charges, the Presumption of Innocence, and What the Crown Must Prove

[2] Count 1 reads:

HER MAJESTY THE QUEEN PRESENTS THAT K.R., between the 21st day of November, 2013 and the 21st day of November, 2015, at the City of Owen Sound, Ontario, did commit a sexual assault on M.B., contrary to section 271 of the Criminal Code of Canada.

[3] It is for Crown counsel to prove beyond a reasonable doubt that the events alleged in fact occurred. It is not for K.R. to prove that these events never happened. If I have a reasonable doubt whether the events alleged ever took place, I must find the accused not guilty.

[4] That is because, of course, K.R. is presumed to be innocent of the charges. He has no burden to prove anything. That burden of proof rests entirely with the prosecution. The Crown must establish each and every essential element of the offence in question, beyond a reasonable doubt.

[5] The essential elements of the charge of sexual assault are as follows:

i. that K.R. intentionally applied force to M.B.; and ii. that the force that K.R. intentionally applied took place in circumstances of a sexual nature.

[6] Consent and honest but mistaken belief in consent are not issues, given the age of the child complainant.

[7] If the Crown has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find the accused not guilty of sexual assault.

[8] Count 2 reads:

AND FURTHER, THAT K.R. between the 21st day of November, 2013 and the 21st day of November, 2015, at the City of Owen Sound, Ontario, did for a sexual purpose, touch M.B., 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.

[9] The essential elements of the charge of sexual interference are as follows:

i. that M.B. was under sixteen years old at the time (that is not disputed); ii. that K.R. touched M.B.; and iii. that the touching was for a sexual purpose.

[10] If I am not satisfied beyond a reasonable doubt of all of these essential elements, I must find the accused not guilty of sexual interference.

II. The Trial

[11] This was a short Judge-alone trial heard over less than 2.5 days.

Who Testified

[12] For the Crown, I heard from (i) M.B., the complainant, and (ii) H.B., the mother of M.B. I also heard from (iii) Detective Daniels of the Owen Sound Police Service.

[13] Detective Daniels was called to testify simply to confirm the steps of the police investigation from when he interviewed the child until when he arrested the accused.

[14] Nothing turns on the evidence of the officer. The only material item that arose during his testimony relates to whether M.B. has been inconsistent on the issue of who moved the accused’s clothing in order to facilitate the complainant’s sexual touching of K.R. For reasons alluded to below, I place little weight on the testimony of the officer in that regard. There is no inconsistency on that point.

[15] For the Defence, I heard from (i) the accused, K.R., (ii) his wife, B.R., and (iii) A.R., their daughter.

The W.(D.) Instruction

[16] I pause here to remind myself of an important instruction. The accused testified and denied any sexual touching of any kind against the girl. K.R. must be acquitted if I believe his evidence. If I do not necessarily believe him but find that his evidence leaves me with a reasonable doubt, he must be found not guilty. Even if I completely reject his evidence, he must still be acquitted unless the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.

The Evidence of the Complainant

[17] M.B. is just nine years old currently. She was only six or seven years of age, up to being close to eight, when the alleged sexual touching occurred.

[18] According to M.B., while staying at an in-home daycare which was being operated by the accused’s wife, M.B. and K.R. engaged in numerous instances of sexual touching.

[19] Specifically, on many occasions, the girl entered the upstairs bedroom of the accused and touched his bare penis with her hand while he was lying on his back on the bed, awake. Further, on several occasions (though fewer than the former category), in the same bedroom, K.R. touched the outside of her bare vagina with his hand.

[20] According to the child, all of the penis-touching episodes happened the same way, and all of the vagina-touching incidents happened the same way. On all occasions of no matter what type of touching, the accused’s wife was home.

The Evidence of the Complainant’s Mother

[21] H.B. testified that, in June 2015, her daughter told her that K.R. had touched her privates. H.B. believed that her daughter had been sexually assaulted by the accused. H.B. spoke with K.R.’s wife about the matter, yet M.B. went back to the home for daycare until mid-July 2016. The police became involved around that time.

The Evidence of the Accused

[22] According to K.R., now 63 years old, he was never alone with M.B.; more specifically, he was never with her in his bedroom; and there was never any sexual touching of any kind between him and the girl.

The Evidence of the Accused’s Wife

[23] B.R., the wife of the accused, is in her late fifties and has run an in-home daycare for many years. She testified that, between 6:00 p.m. and about 7:10 p.m. on the weekdays that the complainant was at the home, the complainant was the only child there (the others had already left). B.R. never saw M.B. go upstairs alone, and certainly not while K.R. was there after work. Further, according to B.R., it would likely not have been possible for M.B. to have gone upstairs alone without B.R. knowing, especially not while K.R. was there after work.

The Evidence of the Accused’s Daughter

[24] A.R., the daughter of K.R. and B.R., testified that she lived with her parents for much of 2014 and helped her mother with the daycare on weekdays during the time period stipulated on the Indictment – November 2013 to November 2015. She gave evidence that she never saw M.B. go upstairs alone.

III. Analysis

Some Evidence is Less Important

[25] The three main witnesses at trial were M.B., K.R. and B.R.

[26] Nothing turns on the testimony of M.B.’s mother, H.B. I fail to see any material inconsistency between her evidence and that of her daughter. And I reject the submission by the Defence that I ought to find that H.B. disbelieved her daughter’s allegations and then use that as a factor in my own assessment of the credibility and reliability of M.B.

[27] Similarly, nothing turns on the testimony of Detective Daniels. I place little weight on his evidence that M.B. disclosed to him during her interview that it was K.R. who moved his clothing to facilitate the child touching his penis. I find it unrealistic that the officer would have an independent recollection of that remark that was made nearly one year ago. In addition, as the officer stated in re-examination at trial, his notes are not a verbatim account of what was said by the child, were not taken during the interview and amount to more of his impression of what the child said. The recorded interview itself is indiscernible as to whether M.B. stated that it was K.R. who moved his clothing. Thus, I find no inconsistency between what the child stated at trial and what she said during her police statement on the issue of who moved the accused’s clothing.

[28] The evidence of A.R. was somewhat helpful to the Defence but is overshadowed by what I see as more relevant testimony, that of B.R.

Assessing the Evidence of M.B., a Child Witness

[29] Turning to the evidence of M.B., she is a young child. She testified about events that allegedly occurred when she was even younger.

[30] Children often perceive events differently than adults. Their memories, language and ability to communicate are not the same as adults. Inconsistencies in a child’s evidence, especially on peripheral matters such as dates, times and locations, have to be assessed in the context of the child’s age and immaturity.

The Issue of Corroboration

[31] Further, there is nothing improper about basing findings of guilt on the uncorroborated evidence of a child witness. Corroboration is not required.

[32] Here, however, I agree with Mr. Leger that certain parts of M.B.’s evidence are corroborated by other sources. As just one example, her description of the hook or clasp on K.R.’s work pants matches the photographs contained in Exhibit 1.

Do Not Stereotype Victims of Sexual Abuse

[33] In addition, there is no inviolable rule as to how a victim of sexual abuse will behave. Some will report it right away. Some will report it long afterwards. Some will never report it. Delayed disclosure, by itself, will never be cause to draw an adverse inference against the credibility and/or reliability of a victim of sexual abuse.

[34] In any event, here, I agree with Mr. Leger that the child did not delay disclosure until her police statement in mid-2016. She told her mother about a year earlier.

The Crown’s Theory

[35] I also agree with some of the Crown’s other submissions, for example, that M.B. is obviously a sexually curious child, which fact is not inconsistent with what she described happened in terms of her initiating sexual contact between her and K.R.

Findings

[36] The bottom line, however, is that, notwithstanding Mr. Leger’s very able submissions, I am concerned about the evidence of M.B.

[37] Regardless of whether I reject outright the denials of the accused, I think that it would be unsafe to rely upon the evidence of the child. I say that for three main reasons.

[38] First, I was struck by the manner in which M.B. testified. Her evidence appeared rehearsed, not by virtue of any outside influence but rather in the sense that it was delivered in an unusually rote way.

[39] For example, common sense suggests that it would be difficult for a child to remember how many times she was victimized, or even a precise minimum number of times. Not M.B., though, as she testified at one point that she touched the accused’s penis a total of twelve or thirteen times (eleven or twelve more times after the first instance described).

[40] As another example, common sense suggests that it would be difficult for a child to compare the precise details of one incident of sexual touching with another. Not M.B., though, as she testified that every single time that she touched the accused’s penis occurred in the exact same way.

[41] As a third example, common sense suggests that it would be difficult for a child to testify as to a time of day, never mind an exact time of day, that the sexual abuse occurred. Not M.B., though, as she testified that every single time that she touched the accused’s penis, and every single time that the accused touched her vagina, happened at 6:30 p.m.

[42] This type of military precision in a child’s evidence, or any witness’ evidence for that matter, is unrealistic. It causes me concern that M.B. is either tailoring her evidence or simply saying things in a mechanical, habitual, repetitive manner without due regard for their truth.

[43] Second, M.B.’s evidence simply does not make any sense.

[44] For example, if it is correct that the sexual touching always occurred at or even around 6:30 p.m., then other testimony that the child gave in cross-examination cannot possibly be true. She told Ms. Landry in cross-examination that she would walk the dogs with B.R., then B.R. would make dinner with M.B. standing nearby, and then B.R., K.R. and M.B. would eat dinner together at 6:30 p.m. That testimony in cross-examination is plainly irreconcilable with the sexual touching having occurred around dinner time.

[45] As another example, as nobody suggests that B.R. knowingly allowed her husband to sexually abuse a child whom she described in her evidence with much love and compassion and in positive terms, we must accept that all of this sexual abuse, numbering well more than a dozen incidents in total, went on in a small house with B.R. present in the house and with no other children to look after as they had all gone home. I find that unbelievable.

[46] The Crown argues that perhaps the child is mistaken about the time of day that the sexual touching occurred. Maybe it happened some other time between 4:30 and 7:10 p.m., between when K.R. returned home from work and when the child left with her mother. Maybe it happened before the other children had left and when the home was still a busy place not long after 4:30 p.m.

[47] The Crown submits that, if the sexual touching occurred earlier during that two-hour and forty-minute period, then it matches the evidence of the Defence witnesses who testified that the accused would often be in his bedroom for a while after coming home from work at 4:30 p.m.

[48] The problem with those submissions is three-fold. First, somewhat surprisingly, there was absolutely no uncertainty on the part of M.B. about the time of day that these incidents happened. Second, she was never asked whether they could have occurred earlier. Third, in my view, it makes no sense, on the evidence of the child herself, that the incidents could have occurred any earlier than she stated, steadfastly, at trial because the clear import of her evidence was that each incident ended because she needed to go back downstairs to be picked up by her mother, and that did not happen until after 7:00 p.m.

[49] The importance of the evidence of B.R. cannot be overstated. Remember that, at one point, M.B. testified that she touched K.R.’s penis at least twelve times. She also testified, at one point, that he touched her vagina at least five times. It is absurd that, never once, did B.R. manage to see the girl go upstairs from a clear vantage point in the living room, especially when B.R. would have necessarily been sensitive to that given that a house rule was that no children were to be alone upstairs.

[50] Could B.R. have missed a brief interlude of M.B. being upstairs over the course of two years or so? Yes, indeed. But miss numerous occasions of that happening, with no other children to worry about at the time, in a house that is less than 1500 square feet on all levels, with nobody else there except the child and her husband, definitely not, in my view.

[51] Third, M.B.’s evidence as to the circumstances of her going upstairs just before every incident of sexual abuse is inconsistent with the testimony of B.R., whose evidence I accept.

[52] As intimated in my earlier comments, I found B.R. to be an impressive witness. She did not bad-mouth the complainant; quite the opposite actually. She did not try to downplay the alleged prior occurrence when an older child attending daycare at her home touched a younger child’s privates. In actuality, B.R. admitted more than she should have in saying that she missed something that happened briefly on one occasion in the middle of the day. That admission against her own interest was unnecessary as there is no evidence before this Court that anything in fact happened between the two children. There was simply an allegation by one child against another.

[53] B.R. testified that she never saw M.B. go upstairs alone. That was not allowed. I accept that evidence.

[54] Photographs do not lie. Here, they prove that B.R. would have certainly been able to see the child go upstairs while sitting on the furniture in the living room that M.B. said that B.R. was usually, if not always, sitting on when M.B. went upstairs on each occasion before the sexual touching took place in the master bedroom. That testimony of the child cannot be true. I reject it.

[55] In cross-examination at trial, the Defence brought out some alleged internal inconsistencies in the evidence of M.B. Those are not the types of matters that I would hold against a child, however. Nor do I agree that certain parts of her story are inherently implausible, such as her having initiated sexual contact with K.R. in the manner that she described.

[56] Rather, the concerns expressed above are what drive my decision.

[57] I cannot say that I necessarily believe the denials of the accused. An artful cross-examination by Mr. Leger demonstrated that K.R. was bent on exaggerating his “routines” after work in order to remove any opportunity for him to have done what was alleged by the girl.

[58] The Crown submits that the Defence evidence was “manufactured”. I would not use that word, but I agree that K.R. unreasonably contested any suggestion that what he did after work sometimes varied.

[59] If K.R. was being disingenuous, I do not agree that it in any way blemishes the evidence of his wife. In fact, she was far more willing to allow for flexibility in what was occurring after 4:30 p.m. than her husband was. The only item that she expressed any rigidity on was that K.R. never missed a weekday in bringing dinner to his parents.

[60] This is a woman, B.R., who was more fair in her evidence than anyone else who testified at trial, on either side. In addition to what was indicated previously in these Reasons, she did not exaggerate her evidence or declare it with some sort of unreasonable exactness, such as when she paused and stated that she does not believe or think that the child could have gone upstairs without her knowledge.

[61] This is a witness, B.R., who readily admitted in cross-examination that she was busy when the other children were still at the home after 4:30 p.m., too busy frankly to focus on what K.R. was up to.

[62] This is a lady, B.R., who readily acknowledged that her husband had tickled the girl, something that B.R. surely would have known was a dangerous thing to say.

[63] This is a person, B.R., who expressed what I perceive to be a genuine commitment to the children that she cares for, one that would outweigh even her allegiance to her husband.

[64] At the end of the day, the evidence of K.R. and B.R., but mainly B.R., combined with the frailties in the evidence of M.B. highlighted above, cause me to have a reasonable doubt. I am not sure whether the child is telling the truth. I do not know if the sexual touching happened or not. Although parts of M.B.’s evidence were corroborated by other evidence, such as her description of K.R.’s work pants, that does not alleviate my reasonable doubt. On the pants, for example, I accept the evidence of B.R. that M.B. was familiar with them because she would help with the laundry and actually, on occasion, folded the pants herself.

IV. Conclusion

[65] For the above reasons, I find K.R. not guilty on both counts.

[66] One final note – I have not dealt with two issues that were canvassed during the evidence at trial. Why in the world would H.B. have sent her child back to a daycare within days of the girl disclosing that there had been something sexual and inappropriate between her and K.R.? And why on earth would B.R. and K.R. have allowed the child to continue at the facility for another year or so?

[67] It is not necessary to answer those questions. Persons make decisions for different reasons. It is not my job to say if they are good reasons. The case boils down to the criminal standard of proof. It has not been met.

Conlan J.

Released: May 18, 2017