Court File and Parties

COURT FILE NO.: CR-18-40000551-0000 DATE: 20181114 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – DY Accused

Counsel: Kasia Batorska, for Her Majesty the Queen Daniel Goldbloom, for the Accused

HEARD: October 1 - 10, 2018

BEFORE: B.A. Allen J.

Publication Restrictions Notice

A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code. By order of this court, any information that could identify the Complainant and her mother shall not be published in any document, broadcast or transmission.

Reasons for Judgment

Crown Applications

[1] The accused, DY, age 36 at the time, was charged in relation to his 11 year old great niece, TY, with administering a noxious substance, invitation to sexual touching and trafficking cocaine. The Crown withdrew a charge of criminal negligence causing bodily harm.

[2] The Crown requested to have the interviews the police conducted with TY on October 22 and October 31, 2016 admitted as evidence which was unopposed by the defence and allowed by me. Section 751.1 of the Criminal Code provides that in any proceeding relating to certain sexual offences “in which the complainant was under the age of eighteen years at the time the offence is alleged to have been committed, a videotape made within a reasonable time after the alleged offence, in which the complainant describes the acts complained of, is admissible in evidence if the complainant, while testifying, adopts the contents of the videotape.” The videotape was made close in time to the alleged offence which increases the potential for reliability.

[3] The video recordings of the two interviews were played in court. TY adopted the contents of what she said in the interviews.

[4] The Crown also applied under s. 486.2(3) of the Code, unopposed by the defence, for TY to testify outside the courtroom as the law allows for a person under age 16, which I granted. The Crown also applied unopposed, which I also allowed, for a support person for TY as is permitted under s. 486.1(1) of the Code for complainants alleging sexual offences.

The Allegations

Evidence related to the October 22nd Interview

[5] TY was interviewed by Det. Corina Loucks at the police station starting at 11:27 p.m. on October 22nd and from 10:30 a.m. on October 31st.

[6] The charges against DY arise from incidents that occurred on October 20, 2016 at DY’s apartment at D[…] Ave., apartment […]. At the time of trial TY was 13 years of age and in grade 8. At the time of the incident, she lived with her mother, MY, and step-father within walking distance of her great uncle’s apartment. TY is the second oldest of eight children in her family living together with their parents. DY is TY’s mother’s uncle. TY testified she had never had any bad experiences with DY before. She said their relationship was “perfectly fine”.

[7] The allegations are that on October 20th TY went to DY’s apartment after school. She arrived there around 3:15 p.m. It is a one-bedroom apartment with a living room, a balcony, kitchen and bathroom. DY invited her to his apartment. She joined him there and they began watching a Dracula movie on his television.

[8] TY said DY then took out a glass tube and put some white powder that looked like sugar inside the tube and lit the white powder. She stated that she had never seen the sugar-like substance before. She did not know what it was and DY did not tell her. TY stated that DY told her the glass tube was a “vape” or a “vapour”. TY testified she had never seen one before. She said it was a clear glass tube with a black substance at the top. She identified an item in evidence as the vape DY asked her to smoke.

[9] TY testified that DY then asked her if she wanted to smoke it to which TY said “no” that she would get into trouble. TY stated that DY told her it was all right, he would not tell TY’s mother. TY testified she again refused to smoke the vape. It is TY’s evidence that DY insisted saying, “Just do it, just do it”.

[10] TY testified she gave in and smoked the vape. TY testified DY used a dark blue lighter to light it. TY testified she did not light the vape herself. DY lit it. She testified both hers and DY’s hands were on the vape when he lit it. He lit the vape and smoked it himself first. He then told TY to put her mouth on it and suck on it. She sucked in the smoke from the glass tube and breathed out. TY testified that she did this two times. She testified she did not know what she was smoking. According to TY, DY told her not to tell her mother because he would go to jail if she told anyone. She said the “room got dizzy” and her throat began to hurt. She said she was dizzy for about one or two hours. Her legs started to shake. DY gave her some water.

[11] TY testified she did not want to smoke the vape. She testified it was complicated to explain but she always wanted to be the cool kid at school and fit in. She said she thought it would be cool if the other kids at school found out what she did. But looking back she thought it was a “stupid choice” to smoke the vape. TY testified she never saw anyone in her home smoking vapes but she had seen kids at school smoking them. She said her grandfather used to smoke a vape but she did not see it up close and she never used it herself.

[12] TY said DY began texting and calling her mother after she smoked the vape. TY testified she did not see the texts between DY and her mother except one text where DY was asking for his daughter’s phone number. She said DY was mostly on the balcony when he was texting and calling her mother.

[13] TY testified DY left the apartment twice after she smoked the vape. He told her he had to go outside because his friend was waiting for him. TY testified that he went out to speak to his friend. She told Det. Loucks she was not sure if he left the apartment building but she could hear muffled voices in the hallway after he left. TY testified he was gone only about five minutes both times. When he returned they continued watching the movie. TY disagreed with defence counsel’s suggestion that he was gone 15 to 20 minutes.

[14] TY testified about a wrench DY had placed on the lock on the inside of the door to the hallway. She explained that children from the nearby school would come to the door. He wanted to prevent them from breaking in. There was a wrench attached to the lock which was attached by wire to the door knob. To leave and enter the apartment the wrench would have to be removed and then be placed back on the lock. TY testified she felt she could leave the apartment at any time she wanted to leave but said she could not because of the wrench on the door.

[15] Defence counsel cross-examined TY on her evidence that she could not leave the apartment because she would have to remove the wrench to do so. Defence counsel pointed out that before DY left each time he had to take the wrench off and leave it off before he returned. TY agreed but did not explain her evidence that she could not leave because the wrench was on the lock.

[16] TY also stated to the officer and testified that DY never touched her inappropriately while she was at the apartment. She testified her mother and school had taught her about inappropriate touching. She nodded in the affirmative when the officer asked whether she would report it to her if DY had touched her inappropriately.

[17] Defence counsel cross-examined TY about the sexual touching suggesting that it did not happen. He suggested TY made this up because of her mother urging her to say this because the mother herself had been sexually assaulted by DY’s brother when she was young. TY insisted that DY did ask her to touch his penis.

[18] In her statement to the police and in-chief at trial, TY stated she did not go into the bedroom at any time. Defence counsel cross-examined TY on her evidence that she did not go into the bedroom. He suggested that DY put his black pouch where he kept his drugs and paraphernalia in the bedroom, closed the door and told TY not to go in there.

[19] TY denied that DY told her that. She testified the only place she saw the black pouch was on the coffee table in the living room. Defence counsel also put to TY that when DY left the apartment, she went into the bedroom and took the vape from the black pouch and lit it the same way DY had lit it. TY also denied this. Defence counsel further suggested when DY arrived back at the apartment that he asked TY why she had gone into his bedroom. TY also denied that DY had said this to her.

[20] TY seemed to have indirectly contradicted her previous evidence that she had not gone into DY’s bedroom when, in responding to defence counsel’s suggestions, she said DY did not know she had gone into the bedroom. On re-examination TY acknowledged she had briefly gone into the bedroom but did not see a black pouch or drugs there.

[21] TY testified she knew DY was texting her mother. When TY said she had to get home because she could get into trouble from her mother, DY told her again he would not tell her mother. TY testified that she insisted that she had to go home because it was getting late. DY then walked her home and they arrived at her home at about 8:00 p.m.

[22] TY testified that when she got home, she realized her mother did not know where she had been. Her mother asked her if she had been at Vaughan Mills Mall. TY testified she learned at that point that when DY was texting and calling her mother from his apartment that he was telling the mother that he, TY and DY’s daughter were at Vaughan Mills Mall buying a gift for his daughter. Again, TY said DY made calls and sent texts to her mother from the balcony of his apartment so she did not know what DY was telling her mother.

[23] Defence counsel put to TY that she knew about the plan for DY to tell her mother that they had been to Vaughan Mills. He suggested she was in on the lie about shopping at Vaughan Mills. TY pushed back saying she only knew about the lie when she got home. In answer to cross-examination about what she testified to at the preliminary inquiry, TY explained that when she heard DY tell the lie to her mother she did not say it was a lie. She went along with the lie because she did not want to get into trouble with her mother and with DY, I assume, for contradicting him.

[24] TY watched television with her family and then went to her room to read. She said she was very scared. She said she regretted what she did. TY testified she did not tell her parents about smoking the vape until about 12:00 midnight or 1:00 a.m. on October 20th / 21st. She said she was terrified because her mother had told her not to go to DY’s apartment and had warned her about doing drugs. She was scared of what DY might do if she told her parents about smoking the vape.

Evidence Related to the October 31st Interview

[25] The police interviewed TY a second time on October 31st because she had more to tell the police about what happened at DY’s apartment. TY admitted that she had not told the truth to Det. Loucks during the videotaped interview on October 22nd. TY testified, and her mother confirmed, that she disclosed to her parents “piece by piece”. She did not tell them about touching DY’s penis because she was embarrassed about doing that.

[26] Defence counsel challenged TY saying she lied to Det. Loucks in her first statement when she said DY did nothing inappropriate to her. TY admitted she was not telling the truth about that. She said she was not telling the whole truth when she said that. She again explained she was embarrassed to talk about this to her parents and to the police. That is why she delayed in speaking about it.

[27] TY testified she eventually told her mother about it about two days after she told her about smoking the vape. Her mother was concerned that DY might have sexually assaulted her daughter after they consumed the drugs. The mother’s concern was based on an experience she said she had when she was a young girl. The mother testified that DY’s brother had made her do some drugs and when she lost consciousness, he sexually assaulted her.

[28] TY told her mother she did not lose consciousness after she smoked the vape and DY did not touch her. The mother told TY that she wanted her to have a medical examination just in case she had lost consciousness and had been assaulted. TY went to the doctor but did not have to get a physical examination.

[29] The mother felt that TY was leaving something out of her story and told TY she would take her to get a lie detector test. TY testified that she decided to tell her mother about the touching because she would rather tell about it in person rather than through a piece of paper or computer screen from a lie detector.

[30] About the sexual touching, TY told Det. Loucks that while she and DY were sitting on the couch watching TV after the first or second time smoking the vape DY asked her to sit on the floor in front of him and face him. She said he asked her “to grab right here.” She asked why and he said, “Just do it.” She said she touched his thigh and he said, “Higher.” She touched his thigh again and he said, “Higher.” TY testified she touched higher and touched his “pee” with her finger for about three seconds. She explained that she was referring to DY’s penis. TY said DY did not touch her. She said she then went and washed her hands.

[31] TY stated that DY asked her why she was looking at him like that to which she stated, “Because it’s nasty and this is child abuse.” According to TY, DY responded, “No it’s not. Because when you’re older you’re gonna do something like that”. TY stated that he repeated many times not to tell anyone.

[32] TY stated that after touching his penis DY told her to say, “If I can trust.” TY said she repeated the words and then he asked if he could trust her, to which she said, “Yeah.” Then DY repeated, “If I can trust.” TY asked what comes after that and DY said, “Nothing else.”

The Mother’s Evidence

[33] The mother confirmed TY’s evidence about her daughter’s hesitation in speaking about smoking the vape and her delay in reporting the touching.

[34] The mother said TY first told her about the vape and she was not alarmed about that because she thought a vape was not harmful. TY was not feeling well the next morning so the mother kept her home from school. Throughout the day the mother kept speaking to TY and she eventually disclosed that she and DY did not go to Vaughan Mills Mall but were at his apartment. The mother said that when TY told her about the lock on the door she became more suspicious that something was not right. Then she asked why she said she was at Vaughan Mills when she was not. TY told the mother she was afraid of getting into trouble.

[35] The mother said that on October 21st she called DY and asked him why he would give TY a vape to smoke. According to the mother DY said there was only water in the vape.

[36] There were texts between the mother and DY on October 21st filed as exhibits. DY texted, “Do you think I’m that dum?” The mother testified she did not know what he meant by that. DY also told the mother in a text that he would not talk to the kids anymore which the mother also said she did not know what he meant. Then he texted, “What the fuck did you start?” which the mother also said she did not understand.

[37] DY also sent a text to the mother saying that TY was doing this because he “kicked the shit out of her dad”. The mother explained that when TY was age two or three DY beat up TY’s father because the father would beat her (the mother) up. The mother said TY would not know this because the mother never spoke of these things with her children. The mother testified that she had been close to DY in the past because he would always stick up for her. Then DY texted he was going to take a bus to B.C.

[38] The mother testified she received phone calls from DY on October 22nd. He called and left multiple messages that he wanted to speak to the mother. He needed to see her. That she should call him back. The mother did not know what he wanted to talk to her about. She testified she did not want to talk to him because she was angry he had given her daughter a vape. She eventually responded to DY by text that if he comes to her house the “feds (the police) would be here for you.” She testified he kept texting her but she ignored him.

[39] DY left voice messages on October 22nd saying he would never do anything to her children or any children. He told her she has to believe him and asked her to call him back. In one message DY spoke of TY being exposed to second-hand smoke and suggested some black males on the elevator gave TY the drugs and he said he saw her do something weird with her mouth.

[40] In answer to questions about that claim by DY, the mother pointed out that she decided to take TY to the hospital for a blood test. TY tested positive for cocaine in her system. The mother testified she was not aware that DY was a drug user because she had never seen him do drugs. She said she did not do drugs herself, nor did anyone do drugs in her family or in her circle of friends that TY would be in contact with.

[41] The texts and voicemails contained both inculpatory and exculpatory content and as such are admissible in evidence: R. v. Rojas, 2008 SCC 37, at para. 37.

[42] The mother testified that when she found TY had cocaine in her system, she became worried that DY might have sexually assaulted her daughter like his brother had done to her when she was a young girl. She confirmed TY’s evidence that she told TY that she would have the police give her a lie detector test if she did not disclose the truth. Looking back the mother questioned whether that was the best approach but explained she was just worried about what had happened to her daughter and wanted her to tell the truth. She told TY what had happened to her to make TY comfortable to disclose if something happened to her.

Analysis

[43] As the accused is entitled to he did not testify. Defence counsel did however attempt a defence through showing in court and filing as evidence photos of the south exit from the apartment building at D[…] Ave.

[44] The photos show a number of people entering and exiting that building from the south exit around the time TY says DY left the apartment unit. The defence takes the position that DY left his apartment unit for longer than the five minutes TY testified to. The defence points to a male exiting and entering the south door and argues that the male is DY. On the defence theory, if it were DY, that would give TY the time and opportunity to go into the bedroom and light the glass tube on her own and smoke the white powder.

[45] I did not find the images of the male on the photos at the south exit to be clear enough to determine whether the male the defence references is DY.

[46] The defence also relies on the court considering in the context of all the evidence the exculpatory statements DY made in his texts and voicemails to the mother. The principles expressed in R. v. W. (D.), [1991] 1 S.C.R. 742 apply whenever credibility issues arise between Crown and defence evidence. With mixed out-of-court statements, the exculpatory statements maintain their exculpatory value unless the court rejects the statements as untrue: [R. v. M. P., [2018] O.J. No. 3527, paras. 60 and 61].

[47] I considered the exculpatory statements by DY. I found in their totality, and on the whole of the evidence, that the text messages sent to the mother and voicemails left on her phone show a consciousness of guilt on DY’s part. His insistence on speaking to the mother through constant texts and voicemails when, according to him, the vape only contained water, I find points toward guilt despite his protestations of doing nothing wrong to TY. His unexplained suggestion that he was going to take a bus to B.C., seemingly to escape something, adds to the aura of his guilt. I do not accept DY’s denials.

[48] This case centers on the credibility and reliability of TY’s evidence that DY gave or administered to her the white powder, which turned out to be cocaine, and invited her to touch his penis. The verdict thus turns on the trustworthiness of TY’s testimony.

[49] DY is accused of administering a noxious substance, invitation to sexual touching and trafficking cocaine. I found TY’s evidence related to the three charges to be believable. I found her to be a sincere witness who made her best effort to tell the court what happened to her at her great uncle’s apartment. I find she was not shaken under cross-examination on the material areas of her evidence. Nothing in the evidence raises a reasonable doubt about DY’s guilt.

Administering Noxious Thing

[50] There is no dispute that TY was found to have cocaine in her system. There is no dispute that cocaine is a noxious substance. The question is how the cocaine got into her system.

[51] The defence theory is that TY administered the cocaine herself. She went into the bedroom where DY kept his black pouch containing his cocaine and paraphernalia, put white powder into the glass tube, lit it and smoked the cocaine on her own as DY had earlier done in front of her.

[52] I accept TY’s and her mother’s evidence that no one among her family and friends take drugs. I believe TY that she had never seen anyone consume white powder through a glass tube. There is no evidence of this. I accept TY’s evidence that she did not know what the white powder was and that she believed DY that the tube was a “vape”. I believe she did not have the experience and skill to administer the drugs herself just from watching DY do it for himself.

[53] I accept TY’s evidence that DY left the apartment twice for a brief five minutes each time. This I find would make it difficult for her to go into the bedroom, prepare the drugs to smoke, light the tube and smoke the drugs and leave the bedroom before DY returned. I find TY’s evidence generally credible and consistent. In the context of all the evidence, the fact TY did not at first admit she had gone into the bedroom does not lead me to believe she smoked cocaine on her own in the bedroom. I find it not unreasonable that TY simply did not want to admit she looked around the apartment including his bedroom when DY was gone.

[54] Section 245 of the Criminal Code involves two types of offences. The first being where a noxious substance is administered with the intent to endanger life or cause bodily harm, s. 245 (a). The second is where a noxious substance is administered with the intent to aggrieve or annoy, s. 245 (b). The difference in the provisions lies in the purpose for which the substance is administered.

[55] The actus reus of administer the noxious thing can be satisfied by administering the noxious thing, causing the noxious thing to be administered or causing a person to take a noxious thing: [R. v. Getachew, [2013] O. J. No. 1674, at para. 81].

[56] I accept TY’s evidence that DY coaxed her to smoke the vape after he had smoked it. She refused a number of times and with DY’s urging she gave in and smoked it twice. I accept TY’s evidence that DY put the white powder into the glass tube, held the glass tube with his hand while TY held it with her hand and he lit the tube with a lighter. TY then smoked the tube.

[57] DY did not physically force TY to do this. Nor did she freely volunteer to smoke the tube. She gave in to the influence of her much older great uncle who told her it was a vape. I find on those facts that DY caused TY to take the cocaine.

[58] The mens rea involves intent to cause bodily harm or to aggrieve or annoy by administering the noxious thing. The intent to aggrieve or annoy is a lesser included offence of intent to cause bodily harm: [R. v. Andrade, [2010] O.J. No. 6299, at para. 100]. Cocaine is known to be a substance that can do bodily harm possibly leading to future health issues and addiction. On a lesser and more immediate level, it is known that smoking cocaine is capable of aggrieving or annoying the person to whom it is administered. This would be especially so if the person is a young inexperienced child. I find the lesser charge to be applicable in this case.

[59] TY was an 11 year old girl at the time. She testified she got dizzy, her legs shook, her throat began to burn and her eyes became blurry after she smoked the vape. She said she felt this way for one or two hours. She felt unwell the next day. DY had just smoked some of the cocaine before he administered it to TY. The evidence suggests DY was a cocaine user at the time. DY was therefore aware of the adverse effects the cocaine would have on TY and therefore would reasonably have intended the grievous and annoying consequences to TY.

[60] To my satisfaction, the Crown has proved beyond a reasonable doubt DY’s guilt of this offence. I find DY guilty under s. 245(1)(b) of the Criminal Code of administering a noxious thing with the intent of aggrieving and annoying TY.

Invitation to Sexual Touching

[61] Under s. 152 of the Criminal Code it is a crime to invite to sexual touching by inviting, counselling or inciting a person under the age of 16 years to touch, directly or indirectly, with a part of his or her body or with an object the body of any other person including the person under the age of 16 years.

[62] The defence challenged TY’s evidence about the sexual touching on the basis of her delay in disclosing it. The defence also takes the position that TY made up the story about the sexual touching due to the influence of her mother telling her about her experience with sexual assault when she was young and to avoid a lie detector test and a medical examination. The defence also attempted to challenge the credibility of more peripheral areas of her evidence in order to throw doubt on the evidence related to the charges.

[63] I do not accept the defence’s position.

[64] That there is delay in disclosing sexual offences is a well-known fact. This is particularly the case with young victims. This is especially so also if the accused is a member of the victim’s family. Courts have recognized this.

It surely would not surprise the jury to hear, for example, that some children who are sexually abused by a parent are so humiliated that they do not want to tell anybody, but want instead to take the secret to their graves. This jury must decide whether, on the basis of their experience in life, this complainant acted after the alleged incident in a way that is consistent with her story. To assess that, the jury must consider the state of mind of the witness at the time, her age and level of maturity, her sense of confidence and composure, and the relationship between her and her alleged abuser. It may well be that the jury can draw no conclusions of consequence about her subsequent behaviour, and will decide that it is not a telling point one way or the other on the truth of her story.

[R. v. T.E.M., 1996 ABCA 31, at para 11]; see also, [R. v. D.D., [2000] 2 S.C.R. 275, 2000 SCC 43, at paras. 31 and 32]; [R. v. C.B., 2008 ONCA 486, at paras. 38-40].

[65] The Supreme Court of Canada observed:

While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children.

[R. v. B. (G.); and [1990] 2 S.C.R. 30, at p. p 54 - 55].

[66] TY testified, and her mother confirmed, that TY disclosed what happened to her at DY’s apartment piece by piece. TY told of the sexual touching last, a few days after she disclosed that DY coaxed her to smoke the vape.

[67] I do not believe TY made up that story. I also believe the mother did what any caring mother would do if she found out her 11 year old daughter had cocaine in her system after spending hours alone in an apartment with her great uncle – after her own experience with DY’s brother and after the great uncle told the mother there was only water in the “vape.”

[68] The mother said her daughter was acting very nervously when she was disclosing. TY said she was embarrassed to talk about it. It is only reasonable that a mother would try to make her daughter comfortable and feel less shame by telling of her own experience and trying to get the truth, even doing so by mentioning the possibility of a lie detector test and a medical examination. The mother was doing what she could to get the truth.

[69] I believe TY that she was not aware of the lie DY had told her mother about going to the Vaughan Mills Mall. It is reasonable, and I accept, when TY heard that DY had told that lie, that she was afraid of disclosing the lie because she would get into trouble with both DY and her mother.

[70] I believe the mother, the police and the court got the truth from TY. Contrary to the defence position that the mother influenced her daughter to make up a story, I find the mother influenced her to report something very embarrassing to her. She did this by speaking of her own traumatic experience as a young girl. I do not find that the mother influenced her to fabricate a story. Not to minimize the crime involved in inviting a child to sexual touching, but what TY alleges is not similar in type or degree to what happened to her mother. TY did not accuse DY of touching her. She did not exaggerate or make her experience seem similar to her mother’s. I find this points to TY’s credibility.

[71] The fact that there may have been some inconsistencies in her testimony about peripheral matters – about times, about whether there was after school program that day, about the lock on the door, about whether she went into DY’s bedroom while he was gone, about whether the apartment was clean or messy – I do not find on a whole affect the reliability of the critical areas of TY’s evidence about DY asking her to touch his penis. I found TY to be an exceptionally intelligent and sincere young girl who came to court to talk about the embarrassing act her great uncle asked her to perform.

[72] The Crown has succeeded in my view to prove beyond a reasonable doubt DY’s guilt of this offence. I find DY guilty under s. 152 of the Criminal Code of invitation to sexual touching.

Trafficking Cocaine

[73] Under s. 2(1) of the Controlled Drugs and Substances Act to “traffic” a drug means to sell, administer, give, transfer, transport, send, or deliver something to someone, or to offer to do so. As I found above, the facts disclose that DY administered the cocaine to TY by filling the glass tube with cocaine, holding the tube together with TY, lighting it and urging her to suck on the glass tube.

[74] I am satisfied on the facts that the Crown has proven beyond a reasonable doubt DY’s guilt under s. 5(1) of the Controlled Drugs and Substances Act of trafficking cocaine to TY.

Verdict

[75] I find DY guilty on count 1, count 2 and count 3 on the indictment. Convictions will be filed accordingly.

B.A. ALLEN J. Released: November 14, 2018