Court File and Parties

COURT FILE NO.: CV-16-50000109-00AP DATE: 20170613 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – MARTIN BARTHOLOMEW Appellant

Counsel: Martin Sabat, for the Crown Samara Secter, for the Appellant

HEARD: May 17, 2017

SUMMARY CONVICTION APPEAL A.J. O’marra j.

[1] The appellant was charged with counts of assault, sexual assault and sexual interference. He was found guilty after a three day trial of three assaults that involved the touching of a 13 year old student at a school where he was a special education assistant, who also acted as a lunch room supervisor and bus attendant. He appeals against these convictions.

[2] The complainant, C.B. alleged that the appellant touched him inappropriately by rubbing his belly, touching his “butt” and in one instance he tried to kiss him.

Summary of Evidence

[3] Some weeks prior to the complainant’s disclosure of inappropriate touching, his mother discovered that the appellant and her son had been exchanging messages over Facebook. His mother became concerned that an adult from her son’s school was communicating privately with him over the internet. There had also been some communication between the two on an app called WhatsApp, which connected automatically as they had exchanged telephone numbers.

[4] Alarmed by the situation, the complainant’s mother communicated with the appellant and told him not to contact her child again. Further, she arranged a meeting with the vice-principal of the school the next day, May 21, 2015. She was upset there had been such communications as well as a picture of her son having been sent to the appellant. She angrily asserted during the meeting that also involved her son and the appellant, in her view the appellant was trying to “groom” her son.

[5] After the meeting she told her son she did not trust the appellant and he was a pedophile. She told her son to look up the word pedophile in the dictionary and that the appellant matched the definition. In her view, he had a sexual interest in him and he was dangerous.

[6] On June 6, 2015, the boy’s mother found Skittles, candies in his possession given to him by the appellant. This time she called the police and in the presence of her son told them that she suspected that the appellant was a pedophile and that he was engaging in grooming behaviour. At the end of the meeting the police told her to stop contacting the appellant.

[7] Two days after the meeting with the police, on June 8, 2015, the boy told his mother that the appellant had rubbed his belly and his hand had touched his “butt”.

[8] The next day another meeting took place at the school with the principal, the complainant and his mother. Later, after the meeting the boy gave a statement to the police in which he recounted incidences of the appellant touching his belly and butt. In the statement he added that on an earlier occasion the appellant had tried to kiss him.

[9] C.B. testified on the trial that it was the incident of the attempted kiss that led him to tell his mother about the touching. He said he did not tell his mother about the attempted kiss at that time because he did not want her to “freak out”. However, when he spoke to the police he described the touching and the attempted kiss.

[10] As to the attempted kiss, he testified that he had asked the appellant’s permission to go to his locker and as he was walking back from it, the appellant came toward him and tried to “hug me or something”. The appellant’s hand touched his neck and he thought he was pulled toward him and his mouth was near his right cheek “about three inches away”. He testified the appellant almost put his lips on his cheek, but he was able to leave before he was kissed.

[11] With respect to the touching, which began earlier C.B. testified that the appellant would approach him in the school lunchroom and rub his belly slowly while he sat at the table with his friends. He also testified that the appellant slapped him on the butt a few times outside of the lunchroom near the water fountain when there were few people in the hallway.

[12] The Crown called C.B.’s classmate J.J., who testified he saw the appellant touch C.B. on the shoulders on one occasion in the lunchroom and on another occasion tickle and poke C.B. on the side of the abdomen. He said that on the occasion he saw the appellant touch C.B.’s abdomen, he also heard C.B. say “Yo, stop it”.

[13] The Crown tried to refresh J.J.’s memory as to whether it was one time or more by referring to a statement he had given to the police on June 10, 2015 in which he said the appellant touched C.B.’s belly “like almost every day”. J.J. indicated after reviewing that section of the statement he did say that it was every day, “but it’s not every day, ‘cause sometimes I would, like – me and my friends would go outside and, like, go practice to play soccer. … So I don’t know if it’s every day…so sometimes.” Later in evidence he said, “I seen it once, but I don’t remember if I seen it many times, I only seen it one time.”

[14] The Crown applied to have that portion of his statement admitted as past recollection recorded. The court admitted that portion of the statement having found on J.J.’s evidence his recollection at trial was not as good as it was in the past, it was made with sufficient contemporaneity to the events at a time he had a clear recollection of what he was saying, he believed he had sworn to tell the truth and he was aware that it was made in an investigation into the accused’s actions.

Issues

[15] The appellant raises three grounds of appeal with respect to the judgment:

1. The trial judge failed to properly consider the effect of possible witness contamination resulting from the mother’s conduct and actions. Further, he created an inappropriate evidentiary burden on the appellant to prove that the mother mentioned particular allegations to the complainant before tainting was considered in the assessment of the credibility of the son, C.B.
2. The trial judge erred in admitting the statement of the witness, J.J., as past recollection recorded.
3. The trial judge’s reasons regarding the complainant’s credibility were insufficient.

Contamination and Credibility

[16] On the issue of contamination, at trial, defence counsel argued that the mother’s conduct and actions affected the complainant’s credibility and as a result his evidence should be rejected.

[17] On appeal, the position taken by the appellant is that there was a risk of contamination from the mother’s insistence that the appellant was a dangerous pedophile to have a subconscious effect on the son. There was a real risk that her view of the appellant either influenced her son’s interpretation or recollection of events, or made the child feel it was appropriate or necessary to make false allegations to achieve the result his mother wanted – police involvement. Either way, Counsel submits, the possibility alone is enough to call her son’s account into question and to have raised a reasonable doubt.

[18] On the issue of contamination, the trial judge stated in his reasons the following:

There were arguments made by the defence about contamination by the mother. In my view, those arguments are unpersuasive as the complainant testified that his disclosure was his disclosure, that his mother had never mentioned any of these particular activities to him. There is no evidence that she ever suggested any of these complaints to the victim. It was the victim who raised all of them by himself. He indicated he did not disclose these earlier as he knew his mother and that he believed that she would freak out. And that seems to be consistent with her behaviour when she learned of both the Facebook incident and the Skittles incident. She clearly reacted as I suppose any normal mother would, quite violently with respect to her disapproval of these activities. But there is no evidence that she ever suggested any of these particulars to her son. And as he also did not disclose the attempted kiss until he gave his video statement to police, there is no evidence of any contamination by his mother as to that action either.

As for his credibility, defence raised a number of inconsistencies. In my view they are minor… I am satisfied he is a credible witness who was not contaminated by his mother to fabricate and his evidence is as I say in a significant fashion corroborated by J. as to the non-consensual touching by the accused in the lunchroom, and the indication that the accused was clearly told by the complainant to stop.

[19] The appellant contends that the trial judge dismissed the effect of contamination for two reasons, (1) the complainant’s belief that his testimony was his own, “his disclosure was his disclosure”, and (2) relying on an improper presumption that the tainting analysis was restricted to a question of deliberate coaching by the mother and positive evidence was required to that effect.

[20] In support of this position, Counsel relies primarily on two cases: R. v. J.F., 2003 ONCA 52166 and R. v. Burnie, 2013 ONCA 112. Both cases focused on the issue of collusion, either advertent or inadvertent, caused by witnesses meeting and discussing matters relating to the offences alleged.

[21] R. v. J.F., was a case that involved allegations of historical sexual offences committed by a karate teacher on seven young men, their ages ranging from 12 to 16 years at the time of the incidents. The complainants were together 10 years later at the urging of a former student who had gone to law school and worked in a Crown’s office. She had met with several of the complainants on numerous occasions to discuss their memories of the incidents. There was evidence they had met together on a number of occasions to discuss the allegations. Feldman J.A. stated at para. 77:

Collusion and discussion among witnesses can have the effect of tainting witnesses’ evidence and a perception of events innocently or accidentally and unknowingly, as well as deliberately and intentionally. The reliability of a witness’ account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people’s stories which can tend to colour one’s interpretation of personal events or reinforce a perception about which one had doubts or concerns.

[22] In R. v. Burnie, a conviction of a substitute teacher found guilty of sexual offences involving two grade 6 and 7 female students was overturned where it could not be determined on the trial judge’s reasons whether the possibility of collusion was properly considered.

[23] Tulloch J.A. observed that the trial judge on a similar fact application was required to consider the possibility of collusion among witnesses, which falls short of tainting so as to render the evidence inadmissible, as to the effect that it will have with respect to in the ultimate decision on the question of guilt of the accused. Specifically, with respect to the case on appeal, Tulloch J.A. stated at para 36:

While I accept that there was no direct evidence that specific collusion or even a motive to collude existed, there was at least the opportunity for the complainants and the witnesses to have influenced and contaminated each other’s independent perspectives and recollections of the events through their communication of the events with each other, and their interaction leading up to and during their revelation of events to their teacher and the principal. As this court held in R. v. B. (C.) (2003), 2003 ONCA 32894, 171 CCC (3d) 159 at para 40:

Collusion can arise both from a deliberate agreement to concoct evidence as well as from communication among witnesses that can have the effect, whether consciously or unconsciously of colouring and tailoring their descriptions of the impugned events. While this by no means necessarily makes the complainants or witnesses’ evidence valueless the opportunity for collusion must nonetheless be adequately addressed in this case.

[24] Both cases involved opportunities for collusion and contamination, whether it occurred consciously or unconsciously among witness complainants.

[25] In this matter, the trial judge was alive to the possibility of intentional or unintentional contamination as it had been argued extensively by defence counsel in submissions. He addressed the issue of contamination directly in his judgment and outlined the reasons why he was convinced such contamination had not taken place. In his reasons, he stated that the complainant’s evidence as to what happened to him was his evidence, “his disclosure was his disclosure”, which is not the same as in J.F. where the court observed the trial judge had accepted one complainant’s evidence because it was “his testimony” and he had not been tainted by the former student who had brought them together or his fellow complainants.

[26] In this case, the trial judge characterized it as his disclosure of incidents, which had not been suggested by his mother. There was no evidence she “ever suggested any of these particular acts to her son.” There were no discussions in which his mother ever pressured her son to tell her whether something had been done to him. All the discussions surrounded her trying to prevent anything from happening to her son. Moreover, there was corroborative evidence from the witness J.J. with respect to C.B. having been touched by the appellant on his stomach and C.B. telling him to “stop it”. This is not a case as in J.F. or Burnie in which complainants spoke amongst themselves of their allegations. In that situation there existed the real possibility of one complainant’s recollection of events “consciously or unconsciously” influencing another complainant’s memory. Here the particular allegations came from C.B.’s experience, not from his mother.

[27] With respect to the submission made by the appellant that the trial judge had placed an evidentiary burden on the appellant, nowhere in the judgment does the trial judge assert such evidence is required to consider the effect of contamination. Rather, in considering the issue of contamination there was nothing within the context of all of the evidence to suggest the mother provided the particulars as revealed by her son. By his own evidence, the complainant testified he had not told his mother anything about the appellant’s attempt to kiss him so she would not “freaked out”. It was only later in speaking with the police that he first disclosed that impugned conduct.

[28] The trial judge in assessing the credibility and reliability of the complainant, specifically dealt with inconsistencies raised by the defence in submissions and considered them to be minor and of no consequence. He found C.B. to be a credible witness and noted that he was “not contaminated by his mother to fabricate, and that his evidence was by corroborated by J.J. in a significant fashion as to the non-consensual touching by the accused in the lunchroom.

[29] Here, the learned trial judge considered the weight to assign to the complainant’s evidence in light of the possibility of contamination by his mother, evidence that clearly came from the complainant and other evidence he considered corroborative.

Past Recollection Recorded

[30] With respect to the issue raised by the appellant concerning the admission of past recollection recorded as an exception to the hearsay rule, the determining factors are set out in R. v. Richardson, 2003 ONCA 3896 at para. 26 as follows:

1. Reliable record: the past recollection must have been recorded in a reliable way. This requirement can be broken down into two separate considerations: first, it requires the witness to have prepared the record personally, or to have reviewed it for accuracy if someone else prepared it. Second, the original record must be used if it is available.
2. Timeliness: the record must have been made or reviewed within a reasonable time, while the event was sufficiently fresh in the witness’ mind to be vivid and likely accurate.
3. Absence of memory: at the time the witness testifies, he must have no memory of the recorded events.
4. Present voucher as to accuracy: the witness, although having no memory of the recorded events must vouch for the accuracy of the assertions in the record; in other words, the witness must be able to say that he or she was being truthful at the time the assertions were recorded.

[31] The appellant’s submits the Richardson pre-conditions for admission had not been met. I would not give effect to this ground of appeal for the following reasons.

[32] Firstly, although at trial the defence did not raise an issue of reliability in his reasons in this instance there was evidence that J.J.’s statement given June 11, 2015 was recorded in a reliable way in that it was audio recorded and later transcribed.

[33] Secondly, the appellant contends that the trial judge specifically found that there is sufficient contemporaneity with the events and even though the statement had been given days after some of the alleged impugned events. Timeliness relates to a period of time relative to the events when the person’s recollection would be fresh. The statement having been given within days met the test of timeliness in this instance.

[34] The absence of memory factor as discussed in Richardson does not require a total loss of memory. Portions of a statement can be admitted. J.J.’s evidence at trial was that he thought there had been multiple occasions of touching however, he was only able to recall one incident of shoulder touching and one incident of belly touching. When asked as to the number of times he saw the appellant touch C.B. he stated “I don’t remember how many times, but I seen him sometimes touch him” meaning that there were multiple occasions of touching.

[35] He described how he saw the appellant touch C.B. on the shoulder. Usually when they would walk into the lunchroom C.B. would say “hi” to the appellant. If he did not say “hi”, the appellant would sometimes come to C.B. touch him on his shoulder and say “you didn’t say hi to me”. He also saw him touch C.B. on his side in the lunchroom and “poke him a little bit”. J.J. was only able to recall one incident of shoulder touching and one incident of tickling and poking although overall his evidence in chief was that there had been multiple occurrences of touching. On the voir dire concerning the prior statement when shown the statement J.J. stated:

I did say that it was every day, but it’s not every day, ‘cause sometimes I would, like – me and my friends would go outside and, like, go practice to play soccer…so I don’t know if it’s every day…so sometimes”.

[36] J.J. had a recollection of some events and a partial absence of memory.

[37] In terms of the fourth criteria J.J. had vouched for the accuracy of his previous statement on the voir dire. He confirmed his memory of the events was better back in the spring of 2015, he knew it was a police investigation, and he stated that in his recollection the statement was made under oath and he swore on a bible. Finally, he confirmed that he understood the importance of telling the truth when he made a statement to the police and he was very careful that when he talked to them he only told them what he knew and not what he was told by others. He never spoke to C.B. about the belly touching before his statement.

[38] There is no error on the part of the trial judge in the admission of the past recollection recorded.

[39] In any event, the trial judge did not rely on the past recollection recorded exhibit in his reasons when he stated:

But even apart from that exhibit and the past recollection recorded the witness stated when he was being shown the statement that, “I don’t know if it’s every day but it’s sometimes”, since he was not – since the witness J., was not always in the lunchroom since he played soccer on some occasions. He did have a clear recollection of the one time when the complainant said “Stop it”, but his evidence is that it happened not every day but sometimes. So in my view his evidence is consistent with this having occurred more than once. And this evidence, in my view, corroborates C.B.’s evidence that he was unwantedly touched by the accused. He himself stated in his evidence that he told the accused to stop it.

[40] Not having relied on the admission of the past recollection recorded it had no impact on the ultimate decision in this matter.

Sufficiency of Reasons

[41] With respect to the issue as to the sufficiency of the trial judge’s reasons concerning conflicting evidence the trial judge extensively addressed the credibility issue of the main witness, C.B., and clearly outlined the reasons for finding the appellant guilty of the assaults. In R. v. Vurudin, 2013 SCC 38 at para 12, the Supreme Court stated:

Ultimately, appellate courts considering the sufficiency of reasons “should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation for the purposes or functions for which they are delivered”: REM, at para 16. These purposes “are fulfilled if the reasons, read in context, show why the judge decided as she or he did” (para. 17).

[42] The trial judge’s reasons included:

• A summary of the offences with detailed description of each incident of touching as outlined in the complainant’s testimony,
• A summary of the evidence provided by J.J. and analysis of how J.J.’s testimony corroborated C.B.’s testimony that there was non-consensual touching,
• Direct reference to C.B.’s evidence of stroking on his belly and how that was corroborated by J.J.’s evidence,
• An extensive discussion about contamination and inconsistencies in C.B.’s testimony that directly dealt with his credibility,
• Finding there was non-consensual touching by the appellant in the lunchroom and also non-consensual touching of C.B.’s “butt” and neck by a person in authority and trust, as a special education assistant,
• Considered the “puckering of lips” evidence brought out by defence in cross-examination which dealt directly with C.B.’s credibility, and
• Finding that grabbing of C.B.’s neck amounted to an assault.

[43] Finally, the appellant argued that there was a difference between C.B.’s description of being touched, rubbed on his stomach and J.J.’s evidence that he witnessed the appellant poke or tickle the right side of the complainant’s abdomen that was not resolved by the trial judge in his reasons and as a result he does not know if his argument of de minimis applied.

[44] In submissions at trial, Counsel raise the question in a general fashion whether C.B.’s evidence in the context of all the other evidence supported a finding of non-consensual force that was above the de minimis level in the case of assault.

[45] The trial judge after finding that there was non-sensual touching by the accused in the lunch room, the touching of C.B.’s stomach as corroborated by J.J.s evidence stated on the question of de minimis:

Regarding the totality of the evidence, I am satisfied that he was also touched non-consensually on the butt and on the neck by a person in a position of authority and also in a position of trust. In the context neither of these can be considered diminimus (sic) or trivial.

[46] Counsel argued that while the trial judge addressed the question of de minimis as it related to the touching of the complainant’s neck and butt he did not address its applicability to the stomach touching or the differing accounts between C.B. and J.J. as to the stomach touching. As such the appellant cannot know from the reasons whether the common law defence of de minimis applies.

[47] The absence of specific comment in the reasons as to the question of de minimis and abdomen touching does not indicate it was ignored. To the contrary, it was clear in his reasons that the trial judge equated the seriousness and the non-trivial nature of the appellant touching C.B.’s stomach and his butt, when he stated, “if the sexual assault charge had related to the actual touching that took place of the abdomen or to the butt, I would be more inclined to find a sexual assault given the context of the overall situation”.

[48] The reasons provided by the learned trial judge read as a whole in the context of the evidence and submissions indicate clearly why the appellant was found guilty of the offences of assault.

[49] The appeal against convictions is dismissed.

A.J. O’Marra J. Released: June 13, 2017