ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: Her Majesty the Queen v. M.C., 2017 ONSC 776
COURT FILE NO.: CR911/15
DATE: 20170201
BETWEEN:
Her Majesty the Queen
Mr. Craig Brannagan, for the Crown
- and -
M.C.
Mr. Hedley Thompson, for the Accused
Accused
HEARD:
January 24, 25, 26 and 30, 2017
REASONS FOR JUDGMENT
Conlan J.
I. Introduction
The Charges
[1] In total, the accused faces thirteen counts of historical sexual offences alleged to have been committed against two young males between the years of 1998 and 2005.
[2] At Court on January 30, 2017, just prior to closing submissions by counsel, at the request of the Crown and without any opposition by the Defence, many of the counts were amended. The amendments were all relatively minor in nature. All but one of them concerned the dates of the alleged offences. Count 2 was amended to coincide with the trial evidence of the complainant as to which part of his body he was invited to use in touching the accused.
[3] All references to the counts below are to the amended wording.
Sexual Interference
[4] M.C. is charged with four counts of sexual interference. The formal charges read:
Count 1. M.C. stands charged that between the 1st day of September, 1998 and the 31st day of December, 1998 at the First Nation of S[…] in the said region did for a sexual purpose touch A.R.-A., a person under the age of fourteen directly with a part of his body, to wit his penis, contrary to Section 151 of the Criminal Code of Canada.
Count 5. M.C. further stands charged that between the 1st day of June, 2001 and the 1st day of September, 2002 at the First Nation of S[…] in the said region did for a sexual purpose touch N.A., a person under the age of fourteen directly with a part of his body to wit his penis, contrary to Section 151 of the Criminal Code of Canada.
Count 8. M.C. further stands charged that between the 1st day of September, 2003 and the 31st day of December, 2004 at the First Nation of S[…] in the said region did for a sexual purpose touch N.A., a person under the age of fourteen directly with a part of his body, to wit his penis, contrary to Section 151 of the Criminal Code of Canada.
Count 11. M.C. further stands charged that between the 1st day of September, 2004 and the 31st day of December, 2005 at the First Nation of S[…] in the said region did for a sexual purpose touch N.A., a person under the age of fourteen directly with a part of his body, to wit his penis, contrary to Section 151 of the Criminal Code of Canada.
[5] The real issue in this case is whether the events alleged to form the bases of the crimes charged ever took place.
[6] It is for Crown counsel to prove beyond a reasonable doubt that the events alleged in fact occurred and that M.C. was the person involved in them. It is not for the accused to prove that these events never happened.
[7] If I have a reasonable doubt as to whether the events alleged ever took place, I must find M.C. not guilty.
[8] For the Court to find M.C. guilty of sexual interference, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
i. that A.R.-A. and N.A. were under fourteen years old at the time;
ii. that the accused touched A.R.-A. and N.A.; and
iii. that the touching was for a sexual purpose.
[9] If I am not satisfied beyond a reasonable doubt of allof those essential elements, I must find M.C. notguilty of sexual interference.
[10] The first essential element, that the complainants were under 14 years old at the material times, is not disputed.
Invitation to Sexual Touching
[11] M.C. is also charged with four counts of invitation to sexual touching. The formal charges read:
COUNT 2: M.C. further stands charged that between the 1st day of September 1998 and the 31st day of December, 1998 at the First Nation of S[…] in the said region did for a sexual purpose invite A.R.-A. a person under the age of fourteen years to touch directly with his mouth to wit his penis the body of M.C., contrary to Section 152 of the Criminal Code of Canada.
COUNT 6: M.C. further stands charged that between the 1st day of June, 2001 and the 1st day of September, 2002 at the First Nation of S[…] in the said region did for a sexual purpose invite N.A. a person under the age of fourteen years to touch directly with his hand to wit his penis the body of M.C., contrary to Section 152 of the Criminal Code of Canada.
COUNT 9: M.C. further stands charged that between the 1st day of September 2003 and the 31st day of December, 2004 at the First Nation of S[…] in the said region did for a sexual purpose invite N.A. a person under the age of fourteen years to touch directly with his hand to wit his penis the body of M.C., contrary to Section 152 of the Criminal Code of Canada.
COUNT 12: M.C. further stands charged that between the 1st day of September 2004 and the 31st day of December, 2005 at the First Nation of S[…] in the said region did for a sexual purpose invite N.A. a person under the age of fourteen years to touch directly with his hand to wit his penis the body of M.C., contrary to Section 152 of the Criminal Code of Canada.
[12] The same instructions apply with regard to whether the events alleged to form the bases of the crimes charged ever took place.
[13] For the Court to find the accused guilty of invitation to sexual touching, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
i. that A.R.-A. and N.A. were under fourteen years old at the time;
ii. that the accused invited A.R.-A. and N.A. to touch M.C.’s body;
and
iii. that the touching that M.C. invited was for a sexual purpose.
[14] If I am not satisfied beyond a reasonable doubt of all of those essential elements, I must find the accused not guilty of invitation to sexual touching.
[15] If I am satisfied beyond a reasonable doubt of all of those essential elements, I must find M.C. guilty of invitation to sexual touching.
[16] Again, the first essential element is not in dispute.
Sexual Assault
[17] M.C. is also charged with five counts of sexual assault. The formal charges read:
Count 3: M.C. further stands charged that between the 1st day of September, 1998 and the 31st day of December, 1998 at the First Nation of S[…] in the said region did commit a sexual assault on A.R.-A., contrary to Section 271 of the Criminal Code of Canada.
Count 4: M.C. further stands charged that between the 1st day of June, 1999 and the 1st day of September, 1999 at the First Nation of S[…] in the said region did commit a sexual assault on A.R.-A., contrary to Section 271 of the Criminal Code of Canada.
Count 7: M.C. further stands charged that between the 1st day of June, 2001 and the 1st day of September, 2002 at the First Nation of S[…] in the said region did commit a sexual assault on N.A., contrary to Section 271 of the Criminal Code of Canada.
Count 10: M.C. further stands charged that between the 1st day of September, 2003 and the 31st day of December, 2004 at the First Nation of S[…] in the said region did commit a sexual assault on N.A., contrary to Section 271 of the Criminal Code of Canada.
Count 13: M.C. further stands charged that between the 1st day of September, 2004 and the 31st day of December, 2005 at the First Nation of S[…] in the said region did commit a sexual assault on N.A., contrary to Section 271 of the Criminal Code of Canada.
[18] The same instructions apply with regard to whether the events alleged to form the bases of the crimes charged ever took place.
[19] For the Court to find M.C. guilty of sexual assault, the prosecution must prove eachof these essential elements beyond a reasonable doubt:
i. that M.C. intentionally applied force to A.R.-A. and N.A.; and
ii. that the force that the accused intentionally applied took place in circumstances of a sexual nature.
[20] Because of the ages of the alleged victims at the time, consent and honest but mistaken belief in consent are not relevant.
[21] If the Crown has not satisfied me beyond a reasonable doubt of each of those essential elements, I must find M.C. not guilty of sexual assault.
[22] If the Crown has satisfied me beyond a reasonable doubt of each of those essential elements, I must find the accused guilty of sexual assault.
The Basic Legal Principles
[23] M.C. is presumed to be innocent of every charge that he is facing. He has no burden to prove anything. That rests entirely with the Crown.
[24] Proof beyond a reasonable doubt requires more than proof of probable or likely guilt. It requires that the Court be sure of the guilt of the accused. Proof to an absolute certainty, however, is not required.
[25] As this is a multi-count Indictment, I must remember to assess each charge individually. There is no similar act application here. I cannot use the evidence on one charge to bolster the case for the prosecution on another count.
[26] Of course, the verdicts need not be the same across the various counts, even those regarding the same complainant.
Evidence of the Accused
[27] M.C. testified at trial. He denied any sexual contact of any kind between him and either boy. He denied all of the specific allegations put forward by the boys in terms of each incident that they described.
[28] If I believe the accused, I must acquit him of the charges. If I do not necessarily accept his evidence but find that it leaves me with a reasonable doubt of his guilt, I must acquit him. Even if I am not left with a reasonable doubt as a result of the accused’s evidence, I must find him guilty only if the rest of the evidence at trial that I do accept persuades me of his guilt beyond a reasonable doubt.
Who’s Who
[29] A.R.-A. is currently 24 years old. He was between 5 and 6, maybe 7, years old at the time of the alleged offences.
[30] N.A. is currently 21 years old. He was between 6 and 10 years old at the time of the alleged offences.
[31] The two alleged victims (sometimes referred to herein, collectively, as the "boys") are brothers. There is a third brother, the youngest in the family.
[32] The youngest sibling has some serious medical issues. He was born without any eyes. Throughout his life, his parents have had to transport him for many appointments in larger cities like London, Ontario. Frequently, A.R.-A. and/or N.A. were left with their paternal grandmother during those trips.
[33] The boys’ parents separated a few years ago. They were together at the time of the alleged offences.
[34] The accused is related to the alleged victims. His mother, S.C., is the paternal grandmother of the boys. The boys' father and the accused are half-brothers in that they share the same mother, S.C., but have different fathers. That makes the accused, in the words of A.R.-A., the boys' half-uncle.
[35] At the time of the alleged offences, the accused was an adult, much older than the boys. He was born in 1976. As of September 1998, he was 22 years old. He is currently 40 years of age.
[36] The offences are alleged to have occurred at the home of the boys' grandmother, S.C., on the S[…] First Nation. As a child, the accused lived there, as did his siblings. The boys visited there frequently, as they and their younger brother and their parents also lived on the S[…] First Nation.
The Allegations
[37] The following summary is taken from the evidence at trial of the two complainants.
[38] According to A.R.-A., the first incident occurred when he was five or six years old, near the end of the summer just before he started school.
[39] He was with the accused at S.C.'s house. The others had left and gone somewhere.
[40] The accused wrestled with him. Then, in one of the bedrooms, the accused took out a condom. After putting it on, he told A.R.-A. to suck his penis. The boy complied, after being slapped by M.C. The incident ended when others came back home.
[41] Per A.R.-A., the second incident occurred the following year.
[42] While in the kitchen at S.C.'s house, the accused came up behind him, grabbed his waist and pushed himself up against the buttocks area of the boy.
[43] N.A. testified that the first incident of sexual activity between him and the accused occurred when N.A. was 6 or 7 years old. It was during the summer break between grades 2 and 3.
[44] He was with the accused at S.C.’s house. The others had left and gone somewhere.
[45] M.C. asked N.A. to come to his bedroom. The accused tickled the boy on the bed. M.C. then asked if N.A. wanted to take his shirt off because it was hot. The boy did so. They were lying on the bed beside each other. The accused took out his penis and asked N.A. to “jerk” him off. M.C. took the boy’s hand, pulled it towards his penis and made N.A. stroke M.C.’s penis. The accused then pushed the boy’s head down and made him suck M.C.’s penis. The accused then turned the boy around and got out a condom from the dresser and put it on. N.A. was on his hands and knees on the bed, face down. M.C. pulled down the boy’s shorts and underwear and stuck his erect penis inside N.A.’s anus. The boy thinks that the accused ejaculated because his penis was limp when he was done.
[46] According to N.A., the second incident occurred during the Fall. In direct examination, he said that he was 9 or 10 years old. In re-examination, he stated that he was 8 years old.
[47] It was Thanksgiving at S.C.’s house. N.A. went out to the detached garage at the rear of the property to tell M.C. that dinner was almost ready. The accused asked the boy to help him with something at the rear of the stock car that he was working on. After the taillight was screwed in, M.C. put his hand down the boy’s pants and stuck his finger inside N.A.’s anus. Then, with the boy leaning up against the car, M.C. put his erect penis inside the boy’s anus and began thrusting. The accused was not wearing a condom. The accused then had N.A. stroke M.C.’s penis with his hand until ejaculation.
[48] Per N.A., the third and final incident occurred when he was 9 or 10 years old, during the winter, at S.C.’s house.
[49] After others had left the home, the boy was alone with the accused.
[50] N.A. went to the bathroom. When he exited, M.C. had his penis out in the living room. The accused sat down on a couch. His penis was erect. He asked the boy to sit on his lap. After hesitating and saying something to the effect that they should just end this, N.A. was pulled by his wrist towards M.C. The accused turned the boy around to face away from the couch. The accused then pulled the boy’s waist so that N.A. sat down on M.C.’s erect penis. With a condom on, thrusting ensued inside the boy’s anus. There was no ejaculation. The incident ended when the boy’s grandparents came back home.
[51] Thus, in summary, it is alleged that M.C. had A.R.-A. give him oral sex and, on a later occasion, sexually touched the boy from behind by rubbing up against him. The alleged sexual misconduct committed against N.A. is even more grotesque. It is alleged that M.C. had the boy stroke his penis on one occasion, had the boy give him oral sex on one occasion, digitally penetrated the boy’s anus on one occasion, and anally raped the boy on three occasions.
The Disclosures
[52] The boys did not tell anyone about what allegedly happened until many years afterwards. A.R.-A. testified that the accused had threatened to hurt him and his family if he said anything. N.A. testified that M.C. told him to keep it a secret. Both boys were afraid and embarrassed.
[53] A.R.-A. finally told his counsellor something when he was about 19 years old. The identity of the suspect was not revealed until shortly before the boys were interviewed by the police in early March 2014.
[54] Just how shortly before is unclear. Based on the evidence of the boys, that very day of the police interviews, March 2, 2014, they told their mother the identity of the alleged culprit – M.C. According to the boys, that was the very first time that either of them told anyone that the person allegedly responsible for the sexual abuse was the accused.
[55] V.R., however, the boys’ mother, testified that A.R.-A. named M.C. as the perpetrator in November 2013, and immediately upon hearing that, N.A. stated that M.C. had raped him as well.
[56] In any event, all agree that the police were not notified of the allegations until March 2, 2014.
The Trial
[57] This Judge-alone trial was heard in Walkerton over four days, commencing on January 24, 2017.
[58] For the Crown, I heard from three witnesses – the two alleged victims, A.R.-A. and N.A., and their mother, V.R.
[59] For the Defence, I heard from M.C. and his long-time partner, D.P.
[60] The primary purpose for calling D.P. was to elicit her testimony that there was an incident between A.R.-A. and the accused in November 2013, a few months before M.C.’s arrest on these charges. According to both the accused and D.P., A.R.-A. got very angry at the accused because the boy liked one of D.P.’s daughters but had been told by the accused to stay away from her, or words to that effect, because she already had a boyfriend.
[61] That evidence is relevant to one of the theories of the Defence – that these allegations may have been fabricated due to A.R.-A.’s animus towards the accused which stemmed, at least in part, from that incident in November 2013.
[62] In addition, counsel cooperated with each other to avoid the necessity of hearing testimony from police officer Tara Palaszewski, who is on medical leave. Her statement and her notes were filed on consent and are agreed to be her evidence to be assessed in the same manner as all other evidence adduced at trial.
[63] The statement and the notes reveal the following. On March 2, 2014, that officer responded to a call made by V.R. in terms of a family dispute. In the course of the police attendance at the family home, V.R. told the officer that the boys had been hurt sexually in the past. The officer confronted the boys about that. They became upset and agreed to provide statements. At the police station, before their formal interviews, the boys spoke with the officer and told her that their uncle M.C. had forced them to do sexual stuff. They had sometimes been left alone with M.C. at their grandmother’s house. N.A. mentioned full anal penetration. Both boys stated that the abuse happened more than once.
[64] I outline the evidence of the officer not because it can be relied upon in any way as prior consistent statements by the boys – it clearly cannot. But the Defence has implied that the boys’ trial testimony as to what they said to the officer is inconsistent with the officer’s evidence and, thus, the officer’s evidence may be relevant to the boys’ credibility.
II. Analysis
The Bottom Line
[65] I do not believe the accused’s denials. Further, I am not left with a reasonable doubt as a result of the accused’s evidence.
[66] Regarding the evidence of A.R.-A., as much as I feel great empathy for the young man, I cannot safely rely upon his evidence.
[67] As for N.A., I found him to be a credible and reliable witness. I accept his evidence as to what M.C. did to him.
The Evidence of the Accused
[68] Aside from the fact that M.C.’s denials are irreconcilable with the evidence of N.A., whose evidence I accept, I am troubled by a few things about the evidence of the accused.
[69] First, I gleaned a certain degree of carelessness in the testimony of M.C. A specific example is required to illustrate the point. In direct examination, counsel had the accused draw a sketch of the inside of the home where these criminal events allegedly occurred. M.C. did so – Exhibit 7. Counsel then asked the accused to comment on the degree to which that drawing is different than that prepared by A.R.-A. during his testimony – Exhibit 2. To my surprise, M.C. appeared to indicate that the sketches were materially different (my words). That was a careless response, likely fueled by the accused’s notion that he could not possibly agree with the boy’s rendition. When I look at the two drawings, they are very similar. In fact, the layout is identical.
[70] Second, in some respects, I found the accused’s evidence to be lacking in basic common sense. For example, he testified that he continued to race cars at Sauble Speedway after he lost his driver’s licence because a licence was not required at the racetrack. I doubt that, however, I will give to M.C. the benefit of the doubt since I did not hear evidence otherwise. What about driving the car anywhere else, though? He was asked about that by the Crown in cross-examination and quickly dismissed the notion that he may have had to practice from time to time or drive the car off the racetrack. Considering all of the years that the accused has raced cars, I find that dismissal impossible to accept.
[71] A more important example is with regard to the accused’s emphatic stance at trial that he was never alone at the house with either or both boys. I disagree with Defence counsel’s submission that the accused left open the possibility that he may have been alone with either or both boys but just not in the context of doing to them what they have alleged. A review of M.C.’s evidence as a whole leaves no doubt that he denied, rather angrily at times, ever being alone at the home with either one of them. I find that to be absurd. He was their uncle. He lived at the very residence where they frequented. He drove a race car, and they were young boys. He was fond of his nephews. Yes, he was a lot older than them and had his own interests, but there was never a single occasion when he was alone at the house with A.R.-A. and/or N.A.? Of course there was.
[72] I find that the reason why parts of the accused’s evidence are contrary to basic common sense is because they are untruthful. In blunt terms, they are the product of M.C. trying to cover himself.
[73] Third and finally, I am concerned about M.C.’s history of crimes of dishonesty. He admitted in cross-examination to have chalked-up four or five convictions for driving while prohibited. That is not surprising, since he has accumulated multiple convictions for drunk driving. A person who repeatedly does what he is prohibited from doing shows a callous disregard for the rules. It is a form of dishonesty.
[74] For these reasons, on top of my acceptance of the evidence of N.A., I neither believe nor am left with a reasonable doubt by the evidence of M.C.
The Evidence of A.R.-A.
[75] At the outset, it is worth noting that, in assessing the credibility of both boys’ evidence at trial, I have kept in mind that they are adults testifying about events that allegedly occurred when they were young children.
[76] As such, although their credibility generally must be assessed as adults, inconsistencies or difficulties with their evidence on relatively minor or peripheral matters must be analyzed in the context of their ages at the time of the events being described. R. v. W.(R.), 1992 CanLII 56 (S.C.C.).
[77] A.R.-A. is obviously a very unwell young man. His presentation in Court was remarkable – he was frequently very angry, swearing, yelling, and aggressive. He threatened to kill the accused from the witness box. He stood up at one point during his testimony. His demeanour caused the Court to have to take the unusual step of requesting additional security in the Courtroom and accommodating numerous pauses and breaks.
[78] I could overlook all of that as understandable given what he alleges happened to him at the hands of his uncle, however, there are other difficulties with his evidence that cannot be overlooked.
[79] First, his evidence has been internally inconsistent in a number of material ways. At trial, A.R.-A. testified that he was threatened by M.C. after the first incident of sexual contact, however, he stated the opposite at the preliminary inquiry. At trial, he was initially adamant that there were two incidents of sexual contact between him and M.C., while in the past he thought that there were three or four incidents. At trial, he first testified that it was the accused’s penis that rubbed up against him from behind in the kitchen, while later he admitted that he is not sure that it was M.C.’s penis. At trial, he testified that, shortly before March 2014, he told his brother about the sexual abuse but did not mention the name of the culprit, while in September 2016 he testified at the first trial in the Superior Court of Justice (which ended in a mistrial) that he told his brother that it was M.C. He has also been inconsistent under oath on how many times he was slapped by the accused during the first incident.
[80] These are just some examples. There are other inconsistencies as well.
[81] Second, I am very concerned about some of the spontaneous comments made by A.R.-A. during his testimony and how those may adversely impact on his credibility and reliability. He repeatedly stated that he did not want to be at Court and was not ready to speak about the allegations. In the witness box, he talked about suffering from post-traumatic stress disorder (“PTSD”). He mentioned that his mind was racing; that he could not remember things; that he was experiencing a “mind-block”; that he was in the midst of being “triggered” with an episode of PTSD; that he was confused; that he hates everyone and everything; that he is sleep-deprived; and that he struggles with trying to reconcile what he thinks that he should say, on the one hand, and the whole and complete truth, on the other.
[82] As he testified, A.R.-A. was a few feet away from me. I could see that he was struggling. He would shake as his answers, at times, grew increasingly rambling and incoherent.
[83] At the end of the cross-examination, I signaled to Mr. Thompson, who was consistently polite and professional with the young man, that it was likely time to stop. Frankly, I was concerned about A.R.-A.’s emotional health and well-being.
[84] I am cognizant that my decision today may do nothing to aid the situation, however, I must assess the case without regard for how one brother may feel when the charges involving him are dismissed and the offences involving his sibling are not.
The Evidence of N.A.
[85] I was very impressed with the evidence of N.A.
[86] His presentation at Court was calm and clear.
[87] His answers were precise. His language was direct. When asked generally what happened between him and M.C., he stated simply “I was raped”.
[88] For a brief moment as he described the first incident, N.A. suddenly put his head down, covered his face and cried. It was a genuine reaction, in my view.
[89] N.A. is not a phony. What you see is what you get. When he was asked by the Court in re-examination by the Crown as to why he was amending, slightly, the ages that he thinks he was at the times of the three incidents, he did not make up some fancy line. He stated simply that he had thought about it some more and it makes more sense that he was between 6 and 9 years old.
[90] The Defence submits that N.A.’s evidence was curiously too detailed. I disagree. He was not prone to exaggeration. And when he did not know the answer to something, or could not remember, he said so. Just one example is whether M.C. was drinking alcohol at or before the time of any of the sexual encounters.
[91] The Defence submits that N.A.’s memories were spawned by his counselling. I disagree. I accept the boy’s testimony that, when he was about 16 or 17 years old, he started to remember more details about what happened with the accused. The passage of time and/or counselling did not create the memories.
[92] The Defence submits that it is odd that N.A. and his brother befriended the daughters of M.C.’s partner, D.P. I disagree. There is nothing odd about it. Those girls were of similar ages as the boys and were a part of the same First Nation community. Besides, victims of sexual abuse behave differently. Although one may choose to move as far away from the perpetrator as possible, others find themselves in places where incidental contact with the abuser continue.
[93] The Defence submits that the boys’ disclosures may have been motivated by A.R.-A.’s anger towards M.C. because the accused had told him to stay away from D.P.’s daughter. Assuming without deciding that the said animus had anything at all to do with A.R.-A.’s allegations, which I highly doubt, it surely is a stretch to find that N.A. has concocted his experiences of being anally raped by his uncle in order to help out his brother’s pride.
[94] The Defence submits that N.A.’s evidence is tainted by a single area of inconsistency – that it cannot be reconciled with that of the officer. Either N.A. is correct that he did not tell Palaszewski any specifics before he was interviewed by the other police officer at the station, or Palaszewski is correct that N.A. did disclose to her some specifics, such as the fact that there was full anal penetration.
[95] I do not see that as a material matter. I can understand why N.A. may not recall exactly what he said to one officer at the station before his formal interview with another. It may also be that N.A. was referring to “specifics” in the sense that he did not describe to Palaszewski the three incidents as he did in Court, for example, which is not at all irreconcilable with the evidence of the officer.
[96] The Defence submits that N.A.’s evidence is tainted by an “investigatory lapse in protocol” in that Palaszewski spoke with both boys together at the police station and received some information from them about what happened with M.C., before they were interviewed by the other officer.
[97] I accept that evidence of Palaszewski, and I agree with the Defence that it would have been better to have not done that.
[98] But I reject the argument about collusion between the brothers. It is simply not borne out by the nature of their allegations. Their descriptions of the sexual encounters with M.C. are almost wholly dissimilar. In addition, I accept the unshaken evidence of N.A. that he has never discussed with his brother the details of what their uncle did. Even his own brother has not been able to penetrate the embarrassment that N.A. feels.
[99] The Defence submits that N.A.’s allegations are simply unrealistic, for example, why would the accused sexually assault him in the garage when the whole family was nearby inside the house for Thanksgiving? Because he knew that the boy would keep his mouth shut. That’s why, in my opinion. It takes only a few moments for someone to be sexually assaulted. It was bold conduct on the part of the accused, but I see nothing unbelievable about what N.A. testified happened at the hands of M.C.
[100] The Defence submits that, as a sexual assault survivor herself, N.A.’s mother would have recognized something in her son if the allegations are true. I disagree. Who knows. That calls for rank speculation. And, remember, this was a trusted home, and the accused is the half-brother of V.R.’s husband. There is no reason to think that V.R. would have had cause for suspicion.
[101] The Defence points out that N.A. may be mistaken as to what number was on the stock car that he was leaning against when he was raped by the accused in the garage. Other evidence at trial suggests that N.A. is mistaken about that, however, such is an example of the type of inconsequential matter discussed by the Supreme Court of Canada in W.(R.), supra. It does not shake my confidence in the credibility and reliability of N.A.
The Collateral Witnesses
[102] I have already dealt with the evidence of Palaszewski.
[103] V.R.’s evidence was brief and dealt mainly with A.R-.A. As far as it may or may not impact on the assessment of N.A.’s evidence, I have already dealt, above, with the Defence’s submission.
[104] D.P.’s evidence is suspect given her stated belief that, in the thirty years or so that she has known M.C., he has never had a drinking problem (despite his multiple convictions for drunk driving), however, it matters not because I accept her evidence as to what occurred in November 2013 between A.R.-A. and the accused. That incident does not cause me any grief about accepting the evidence of N.A.
III. Conclusion
[105] I am not sure what happened, if anything, between the accused and A.R.-A.
[106] I am sure that the accused sexually abused N.A.
[107] Based on the evidence of the boy, I find that, when he was 6 or 7 years old, in the accused’s bedroom, M.C. took out his penis and asked N.A. to “jerk” him off. M.C. took the boy’s hand, pulled it towards his penis and made N.A. stroke M.C.’s penis. The accused then pushed the boy’s head down and made him suck M.C.’s penis. The accused then turned the boy around and got out a condom from the dresser and put it on. N.A. was on his hands and knees on the bed, face down. M.C. pulled down the boy’s clothing and stuck his erect penis inside N.A.’s anus. The accused ejaculated.
[108] When he was 8 years old, maybe a little older, during Thanksgiving celebrations at S.C.’s house, in the detached garage at the rear of the property, M.C. put his hand down the boy’s pants and stuck his finger inside N.A.’s anus. Then, with the boy leaning up against the car, M.C. put his erect penis inside the boy’s anus and began thrusting. The accused was not wearing a condom. The accused then had N.A. stroke M.C.’s penis with his hand until ejaculation.
[109] When he was 9 or 10 years old, in the living room at S.C.’s house, the accused asked the boy to sit on his lap. The accused’s penis was exposed and erect. N.A. was pulled by his wrist towards M.C. The accused turned the boy around to face away from the couch. The accused then pulled the boy’s waist so that N.A. sat down on M.C.’s erect penis. With a condom on, thrusting occurred inside the boy’s anus. There was no ejaculation.
[110] The first incident makes out counts 5 through 7 on the Indictment. The oral sex and the anal intercourse amount to sexual touching – count 5. They also constitute sexual assault – count 7. M.C. invited the boy to both touch and suck his penis – count 6.
[111] The second incident makes out counts 8 through 10. The digital penetration of the anus and the anal intercourse amount to sexual touching – count 8. They also constitute sexual assault – count 10. M.C. invited the boy to touch his penis – count 9.
[112] The third incident makes out counts 11 through 13. The anal intercourse amounts to sexual touching – count 11. It also constitutes sexual assault – count 13. M.C. invited the boy to touch and sit on his penis – count 12.
[113] For all of the above reasons, the verdicts are as follows.
[114] On counts 1, 2, 3 and 4, the charges involving A.R.-A., I find M.C. not guilty.
[115] On counts 5, 6, 7, 8, 9, 10, 11, 12 and 13, the charges involving N.A., I find M.C. guilty.
[116] If counsel have any submissions on the applicability of the Kienapple principle, I will hear those arguments at the time of sentencing.
Conlan J.
Released: February 1, 2017
CITATION: Her Majesty the Queen v. M.C., 2017 ONSC 776
COURT FILE NO.: CR911/15
DATE: 20170201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
M.C.
Accused
REASONS FOR JUDGMENT
Conlan J.
Released: February 1, 2017