COURT FILE NO.: 16-SA5068 DATE: 2019/01/08 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen v. J. P.

BEFORE: Justice A. Doyle

COUNSEL: David Rodgers, Counsel for the Crown Allan Brass, Counsel for the Accused

HEARD: October 22, 23, 24 25, 26, 27 and 29, 2018

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Decision

Overview

[1] The Accused, J.P., has been charged that on or about the 14th day of June 2016 did with a part of his body, for a sexual purpose, directly, or indirectly touch the body of a person under the age of sixteen years, namely Y. S., contrary to s. 151 of the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”).

[2] He is further charged that on or about the 14th day of June 2016, did commit a sexual assault on Y. S. contrary to s. 271 of the Code.

Facts

[3] The undisputed facts are as follows. The Complainant, who is five years old, and his mother lived in the lower apartment of a house divided into apartments. The Accused is the maternal biological grandfather of the Complainant and lived in the upstairs apartment with his two sisters and brother. The Complainant would often go to this apartment to visit his family members, including the Accused.

[4] The Accused worked overnight shifts from 11:00 p.m. until 7:00 or 7:30 a.m. delivering newspapers. He would typically sleep for parts of the daylight hours in his bedroom in the upstairs apartment.

[5] On June 14, 2016, the Accused was found naked in his bed with the Complainant, who was wearing a t-shirt, but whose shorts and underwear were down to his knees and his penis exposed. The Complainant’s mother (“the Mother”) made the discovery when she came into the Accused’s bedroom and proceeded to remove the cover. She cried for help and the child was eventually removed from the bed. The Accused left the bed and put his underwear back on.

[6] This case is comprised of circumstantial evidence and the issue is whether, on the totality of the evidence, the Accused can be convicted of the charges.

Crown’s Position

[7] The Crown submits that the Court can only draw one inference from the circumstantial evidence – that the Accused touched the Complainant for a sexual purpose.

[8] The Crown submits that the circumstantial evidence demonstrates beyond a reasonable doubt that the Accused is guilty of the offences if one considers the following:

• the statements that the Accused made to Detective Johanne Marelic admitting that he would not do it again, and that it was not going to happen again;
• the Mother’s evidence was consistent on the core facts as to what happened. Any inconsistencies in her evidence were on matters of a peripheral nature, and do not impact on her credibility and reliability;
• the expert from the Centre of Forensic Sciences (CFS) confirmed that the Accused’s DNA was found on the Complainant’s underwear. Semen was also found in four sections of the underwear, but it could not be determined with certainty that the semen was the source of the Accused’s DNA; and
• the Accused’s evidence was inconsistent. His explanation as to his actions when he was discovered by the Mother with the Complainant in his bed are not plausible, and not a reasonable inference in the circumstances.

Position of the Defence

[9] The Defence argues that the circumstantial evidence marshalled by the Crown does not prove the offences beyond a reasonable doubt.

[10] The Defence submits that the evidence falls short of finding that the Accused touched the Complainant for a sexual purpose for the following reasons:

• the Mother’s evidence was rife with contradictions and inconsistencies. Although she tried to give the Court an accurate portrayal of the events, her evidence was unreliable due to contradictory evidence found in her June 14, 2016 statement to the police, at the preliminary inquiry, and at the trial;
• the Complainant did not give evidence nor did the Court hear the evidence read in at trial that was previously taken pursuant to s. 715 of the Code;
• the Court should proceed with caution when dealing with expert evidence in this case, as it is inconclusive. Namely, that the expert could not unequivocally find that the Accused’s DNA found on the Complainant’s underwear came from semen; and
• the Accused was consistent in his evidence and denied the allegations.

Legal Principles

[11] The Accused is presumed innocent until proven guilty beyond a reasonable doubt. The obligation to prove guilt rests with the Crown and the obligation never shifts. The Accused does not have to present evidence, nor does he have to prove anything.

[12] To prove sexual interference, the Crown must prove beyond a reasonable doubt the following essential elements:

• that the Complainant was less than 16-years-old at the time;
• that the Accused touched the Complainant, either directly or indirectly; and
• that the touching was for a sexual purpose.

[13] To prove sexual assault, the Crown must prove beyond a reasonable doubt the following essential elements:

• that the Accused intentionally applied force to the Complainant;
• that the Complainant did not consent to the force that the Accused intentionally applied;
• that the Accused knew that the Complainant did not consent to the force that the Accused intentionally applied; and
• that the force the Accused intentionally applied took place in circumstances of a sexual nature.

Analysis

Overview

[14] This case rests entirely on circumstantial evidence – there is no direct evidence of the offence. Accordingly, the Crown requests that the Court review the evidence and make the reasonable inference that the Accused touched the Complainant for a sexual purpose.

[15] For the Crown to prove its case in this manner, the Court is guided by R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, where the Supreme Court of Canada comprehensively dealt with the Crown’s onus in such cases. The Court must consider a range of reasonable inferences that can be drawn from this evidence. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the proof beyond the reasonable doubt standard. Those inferences must be reasonable given the evidence or the absence of evidence, assessed logically, and in light of human experience and common sense. The Court held that when assessing circumstantial evidence, the trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. The Crown may need to negative these reasonable possibilities but does not need to disprove every possible conjecture which be consistent with innocence. Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation (at para. 37).

[16] The Supreme Court in Villaroman summarized the principle at para. 38:

Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the Accused is guilty.

[17] In summary, the Court must determine if the cumulative effect of all the evidence meets the standard of proof, and it is not to consider separately each individual item of the evidence.

Evidence

The Accused’s Statements

[18] Following a voir dire, the Court accepted certain statements made by the Accused in an interview with Detective Johanne Marelic of the Ottawa Police Service (OPS) on June 14, 2016. The statements were admitted as being voluntary and for the truth of their contents. The interview was videotaped and transcribed. The following page references refer to the transcript:

• Page 12: Response of “oh yeah” to the Detective’s direct question: “So can you promise me that you won’t do it again?”
• Page 13: Response of “No, that’s…that’s never gonna happening [sic]” to the Detective’s direct question: “And I’m sure you would wanna tell [Y.S.] that you won’t do it again, right?”
• Page 14: Response of “[w]ell, that’s gonna take a while” to the Detective’s comment: “So I know that the kids would appreciate if you tell ‘em that you’re sorry, and you’ll not do it again.”
• Page 15: Response of “[t]o any of my grandkids or my kids” to the Detective’s question: “But can you just … you know, here’s your … if you really wanna help right now, why don’t you tell me what you would tell [Y.S.]? Would you say you’re sorry?”

[19] The Crown suggests that these statements should be considered admissions of guilt. The Defence suggests that these are not admissions, but general statements and when asked specifically about the details, the Accused denied touching the Complainant, asking the Complainant to touch him, and allowing the Complainant to touch him.

[20] The Court finds that the statements were inculpatory in nature but not conclusive admissions of what is alleged to have occurred. It can be inferred that, according to the Accused, what occurred was not something that would be repeated, but does not mean that the only reasonable inference is that a criminal offence occurred.

[21] When the detective further questioned the Accused to specify whether inappropriate touching occurred, the Accused denied any touching of the Complainant, invitation to touch, or touching from the Complainant.

The Complainant’s Mother

[22] The Court finds that the Mother gave her evidence in a sincere and concerned manner and that she did not have animus toward the Accused.

[23] On June 14, 2016, the Mother states that she could not find her son after she came out of the shower in her downstairs apartment. Given that he often went upstairs to see the Accused, she went up to the Accused’s room and found the two of them in bed under the cover. The Mother stated that she pulled the bed cover and the Accused held on to it and was holding the Complainant. The Mother took a peek and could see that the Complainant’s shorts and underwear were down to his mid-legs and his penis was exposed. She yelled to her mother for help.

[24] The Mother was consistent that only the Accused’s and Complainant’s heads were exposed. She did not see any touching, ejaculation, nor did she observe any hand movement under the cover.

[25] I accept the Mother’s evidence that she discovered the Accused and Complainant together in the Accused’s bed, that the Accused was naked, and that the Complainant’s shorts and underwear down and his penis exposed. I also accept that the Mother tried to pull the cover down and remove the child from the bed to get him dressed.

[26] The Mother’s evidence, however, is diminished by her lack of details. Throughout her testimony, she apologized numerous times for mistakes she had made in previous statements, defending them as “small details”. When examined as a whole, her evidence is very troubling on many levels. Part of her testimony at trial was inconsistent with a previous statement given to police on June 14, 2016 (“the statement”), and evidence given at the preliminary inquiry held in 2017.

[27] Notably, the Mother did not mention at the time of the statement nor at the preliminary inquiry that she was having a miscarriage that day. She indicated that it was a sensitive topic. She did mention, however, that she was not feeling well that day.

[28] Of the events of June 14, 2016, the Mother stated the following:

• She was “a bit zoned out” that day;
• “[Her] mind was not completely there, [she] was in a lot of pain and [her] mind was trying to process”;
• it was difficult for her to perceive events properly because she was experiencing a miscarriage. On June 13, 2016, the day before the incident, her mother came to the house as she and other family members knew of the miscarriage, and it was a matter of time before it would expel;
• she admitted that it was a horrible day, and one with high emotion;
• she admitted that she did not know what was happening under the covers before she entered the room;
• she did not observe any ejaculation;
• she does not remember colour of cover;
• she does not remember if the sheet was tucked in; and
• she could not remember if she patted the Accused with her right or left hand.

[29] The Court notes some contradictions in the Mother’s evidence as follows:

• At preliminary inquiry the Mother stated that she lived in the upper level of the building when she actually resides in the lower level;
• the Mother could not remember whether the door to the Accused’s room was open or closed on the date of the incident and gave inconsistent evidence at the preliminary inquiry. However, she believed it to be closed;
• the Mother claimed that the Accused’s right hand was holding the covers, but failed to mention it when she gave her statement to the police on June 14, 2016;
• in her statement to the police, the Mother claimed that the Accused was hugging the Complainant. At trial, the Mother stated that the Accused was holding the Complainant; she claims that she did not hear the detective say “hugging”;
• she does not recall if there was a comforter and sheet, or just a cover. At the preliminary inquiry she said there was both a comforter and a sheet;
• a number of times the Mother apologized for her “small mistakes”, and stated that they were all small details and not the main focus;
• the Mother admitted to not telling the Detective in her interview where she was standing which was near the doorway on the Complainant’s side of the bed;
• the Mother believes that her memory was not necessarily better in 2016. She stated that “the day was very hard to concentrate to go to see every detail, it was a hard day to concentrate because of trauma”;
• in examination in chief, the Mother did not make reference to attempting to hit the Accused;
• the Mother admitted in cross-examination to being highly emotional, and confused; and
• in cross-examination, the Mother admitted that she could not remember whether the Accused was holding the sheet with both hands.

[30] I agree that, to a certain extent, the Mother’s inability to remember some of the details does not minimize all of her evidence. Certainly, it was a difficult day for her due to her being in the midst of miscarrying and what she perceived was occurring in the Accused’s bedroom.

[31] It is important to note that the Mother does corroborate the Accused’s evidence of the scene itself, i.e. he is found naked in his bed with the Complainant with his shorts and underwear down.

[32] The Court finds that as far as the Mother’s evidence lacks reliability as she admits that incident of her arriving at the Accused’s bed happened very quickly, there were numerous inconsistences in her evidence and her own admission that she was confused that day given her mental and physical condition.

[33] Her testimony centres around the Accused’s reaction when she entered the room. The mother’s evidence in its totality is suggesting that the Accused was trying to hide something that had occurred and he resisted her attempts to remove the cover from him and the complainant.

[34] More specifically, the Court notes her uncertainties in a number of areas in her evidence:

• Whether the Accused was “hugging” (which is the Accused’s evidence, and what she originally agreed to with the detective) or “holding” the Complainant;
• whether the cover was up to the Accused’s and Complainant’s heads or up to the waist (as per the Accused evidence);
• whether it was just a sheet (as per the Accused’s evidence) or both a sheet and comforter for which she could not be sure;
• whether the door was closed (as the Accused said it would be when he sleeps upon his return from work) or partially open as she could not remember; and
• whether the Accused’s right hand was holding the Complainant and he was trying to pull the sheet with his left hand as she could not see his left hand.

[35] In conclusion, the Court finds that the evidence of the Mother with respect to the events following the discovery of the Accused and Complainant in bed should be given little weight because:

• Her ability to make accurate observations was affected by her emotional state due to experiencing a miscarriage and from the event itself;
• her admission that the quality of her memory was not good at the time of the incident; and
• the inconsistencies in her evidence as outlined in this decision.

Melinda Matte, Forensic Expert

[36] The Court heard from Melinda Matte who is a biologist and case manager at the CFS. The CFS received certain items from the Sexual Assault Evidence Kit (SAEK) for testing of bodily fluid and DNA. Ms. Matte was qualified as an expert in DNA and bodily fluids analysis.

[37] Ms. Matte adopted the two reports prepared by Maja Popovic, a forensic Scientist at CFS, by completing her own testing and verifying their conclusions. Ms. Matte was satisfied that Ms. Popovic came to the correct conclusions and adopted those findings as her own.

[38] In preparation for her testimony, Ms. Matte reviewed all of the underlying documentation, details, and the reports prepared by Maja Popovic.

[39] The first report, dated September 20, 2016 (Exhibit 4), outlined the types of tests performed on the samples from the SAEK. Bodily fluid tests were completed on the Complainant’s underwear, where the only fluid detected was semen (not saliva or blood). The semen was discovered by using two tests: AP+ and P30+, which are components of semen. Ms. Matte testified that semen was located in four parts of the Complainant’s underwear as outlined on the photo of the underwear.

[40] A small piece of fabric was excised from the underwear to conduct a DNA test. Semen is generally comprised of two components: cellular and sperm. In order to obtain DNA results, there is an attempt to separate the sperm cells from the other cells. The testing in this matter confirmed the presence of DNA from three individuals: the Complainant, Profile #1 (identified as the Accused), and one other not suitable for DNA comparison (small amount that could not be compared).

[41] The report stated that Profile 1, which was identified as the Accused’s DNA, was present on the Complainant’s underwear, but that it “may or may not originate from semen”. The DNA results further suggest that the donor of semen detected on the Complainant’s underwear may produce semen with very few, or no spermatozoa.

[42] A second report dated October 4, 2017 (Exhibit 5), confirms that the Accused’s DNA could not be excluded from the DNA on the underwear, identifying the Random Match Probability (RMP) as 1 in 77 quadrillion. The RMP is an estimation of the probability that a randomly selected individual unrelated to the person in question would coincidentally share the observed DNA profile.

[43] Ms. Matte confirmed that she cannot say with 100% certainty that the semen was that of the Accused and explained the direct or indirect ways that DNA can be transferred. Indirect methods may involve the use of an intermediary object or surface that facilitates the transfer of the DNA to another object. Hard and nonporous surfaces make DNA more easily transferable.

[44] Ms. Matte indicated that semen could provide a DNA profile if kept in cool and dry conditions and can last decades if not exposed to extreme conditions. If laundered, a garment could still have sperm cells, but the cellular component would be washed away. A dryer may destroy some of the DNA depending on temperature setting and the type of machine.

[45] In this case, Ms. Matte indicated that the semen was likely deposited after the last time the items were laundered. However, because of the low sperm count on the semen it cannot be confirmed that the semen contained the Accused’s DNA.

[46] What is the significance that there was semen on the underwear? It is certainly suspicious. The Defence submitted that children may have some semen excretions in their underwear. The Defence also argued that the semen could have been deposited when the Accused assisted in doing the Complainant’s laundry, however, the Complainant’s mother confirmed that laundry was done by the Complainant’s aunt. However, she did not emphatically state that the Accused never did it. The expert claimed that laundering may destroy the liquid portion of semen, but that some sperm cells may remain.

[47] There are a number of limitations to Ms. Matte’s expert testimony:

• She could not place a time on when the DNA would have been deposited on the Complainant’s underwear, nor how it attached itself. Further, as science cannot pinpoint the exact time of placement, she could not determine how long the DNA was on the underwear;
• she confirmed that case submissions from the OPS are triaged. In this case, the CFS was told that the child was found naked, and as such, proceeded on that basis and did not receive samples of the bed sheet or cover. The use of those samples is context specific since the probative value of semen located in a bed is low as it could have been deposited there during another event. The CFS generally works with more intimate, probative samples. They may have requested the shorts, but the underwear is more intimate;
• she found insufficient DNA detected on the Complainant’s rectal swab (she indicated that fecal matter does not have a lot of DNA), and indicated that minor amounts of DNA were detected on the Complainant’s external genitalia swab, which were not suitable for comparison;
• the sample sperm fraction from the underwear was not at a level of DNA for them to conduct the test;
• she admitted that it was possible the DNA could have come from skin cells; and
• she could not tell if the semen located on the underwear was placed there by a sexual or non-sexual act. Since its presence is not absolute proof that it came through a sexual act, it could have been deposited there with contact with another item.

[48] Ms. Matte indicated that P30 is found in semen, and in rare circumstances, other fluids. There could be P30 in a build-up to ejaculation. Ms. Matte was unable to comment on an article from a pediatric urologist who stated that semen can be detected in boys under five-years-old as the subject matter was outside the scope of her expertise. However, given the two tests utilized, Ms. Matte was emphatic that there was semen on the Complainant’s underwear.

[49] What is the significance of the Accused DNA on the underwear? How did it get there? Ms. Matte could not say definitively that it came from his semen. She stated that it was possible that it could have come from the Accused’s skin cells. Any interaction or touching can leave DNA, and the Complainant and his mother lived in a small household with close quarters. The Complainant often went to the Accused’s apartment to visit, and his laundry was mixed with the upstairs laundry, which also included the Accused’s clothing.

[50] The Mother admitted that, at times, the Complainant’s laundry would be done by her aunt who lived upstairs with the Accused, but she could not recall if the Accused ever did it.

The Accused

[51] The Accused testified that his criminal record contains a conviction in 2004 for sexual interference for which he received ninety-six days and convictions in 2005 for sexual interference and failure to comply with a recognizance for which he received three years (varied on appeal to two years).

[52] The Accused described moving into the upstairs apartment in which he had a room of his own with a single bed. The Accused also described his relationship with the Complainant, which was close as they spent time together that included playing, and the Accused teaching the Complainant how to count. The Accused stated that the Complainant regularly visited him (on a daily basis), and that they would exchange hugs. The Complainant would also regularly wake the Accused when he slept during the day.

[53] The Accused further stated that when the Complainant left his clothes in his apartment, he would fold them and bring them down to the Complainant’s Mother’s apartment.

[54] The Accused described the day that the incident took place as very hot, which caused him to sleep naked with a sheet to cover himself up to his waist. The Accused stated that the comforter was at the end of the bed and the door to his bedroom was closed.

[55] The Accused stated that the Complainant came into his room, woke him up, and wanted to have the bag of Bugles which was on his nightstand. He asked the Complainant whether he had eaten, and the Complainant replied no. The Accused then yelled to his sister to make something for the Complainant to eat. The Complainant then left the room and the Accused fell back to sleep.

[56] Following this exchange, the Accused then stated that he was again woken up by the Complainant, who was calling for him and saying “help me, help me”. The Accused was sleeping on his right side and when he turned over to his left side, the Complainant was lying there with his shorts and underwear halfway down on the upper leg. The Accused asked the Complainant what he was doing. The Accused stated that it bothered him that the Complainant’s pants were down and his penis was showing, however, he could not dress the Complainant as he himself was naked and couldn’t use both of his hands. His underwear was on the floor.

[57] The Accused ended up placing a sheet over the Complainant and explained to him that he could not do this. He asked the Complainant if he was tired, and the Complainant responded yes. The Accused then explained to the Complainant that the bedroom was not his room, and that he had his own room.

[58] The Accused testified that he was about to tell the Complainant to go to his own room and he was focussed on talking to him as his grandfather. However, at this moment, the Mother entered the room.

• the Accused did not pull up the Complainant’s pants;
• the Accused was covered so the Complainant did not see anything:
• the whole incident took about 2 minutes;
• the sheet was up to the Complainant’s waist;
• he did not have time to explain himself as the Complainant’s Mother would not give him a chance to speak. She started yelling for her mother, and was crying before she left;
• the Accused gave the Complainant a hug and said that he would see him later. The Complainant’s Mother started to yell and the Complainant’s maternal grandmother came into the room and gave the Accused a slap to the side of the head;
• the Accused stated that he did not have a tug of war with the sheet, and denied any touching; and
• the Complainant’s Mother and grandmother left the bedroom at the same time.

[59] The Accused agreed that the semen located on the Complainant’s underwear could have transferred during the laundry but does not recall putting clothes with semen in the laundry basket. The Accused, however, later claimed that it was possible – specifically referring to his underwear.

[60] The Accused testified that he does not remember the last time he ejaculated since living at the house. He claimed that his semen does leak out, however, stated that sometimes the leak is urine since he drinks a lot of coffee. The Accused does not know how semen got on the Complainant’s underwear. The Accused stated that he did not know whether his sister Louise always does the laundry but claimed that he does it too.

[61] The Accused claimed that the first time he slept naked was on June 14. However, he then claimed that he slept naked in the spring if it was hot, but later said he did not remember.

[62] The Accused stated that the Complainant was not at school, so he would visit the Accused multiple times during the day. The Complainant would come up alone and the Accused’s door was closed, but he stated that there was no lock.

[63] In evaluating the testimony of the Accused, I am guided by R. v. W. (D.), [1991] 1 S.C.R. 742. Specifically, that an acquittal must follow: firstly, if the Accused is believed and secondly, if the Accused’s evidence is not believed, but there is still reasonable doubt as to their guilt and thirdly after considering their evidence in the context of the evidence as a whole (at para. 27).

[64] Firstly, I do not believe the testimony of the Accused because:

• The Accused would use the excuse that he had a migraine headache and was confused when he made admissions during his interview with the Detective but did not seem to have these challenges when he denied touching the Complainant, being touched, or asking the Complainant to touch him;
• there is lack of consistency in his evidence as to whether the Complainant would come to visit him if his door was closed. In that vein, there is evidence to suggest that the Complainant would not come into his room if the door was closed, and it was closed on the date of the incident;
• there was inconsistency in his evidence regarding whether or not he slept naked since moving into that apartment. In cross-examination, he said it was the first time and then stated that it happened before;
• it is also puzzling that when he stated that he saw that the Complainant had his shorts and underpants halfway down on the upper leg that he did not immediately lift his pants out and escorted him out of his room; lecturing him in those circumstances may not be the most prudent action in the circumstances given the circumstances of him being naked;
• I accept that the whole incident happened quickly: i.e. the Mother entered the room and yelled and was able to take the Complainant out of the Accused’s bed but I do not accept the Accused’s evidence that it took two minutes for the Accused to talk to the Complainant about getting out of his bed and to get dressed. His timing of what occurred does not appear credible;
• he does not offer an explanation to the Mother when she arrives;
• odd that he would hug the child when he is naked and the Mother comes very upset that he is in bed with him and her son’s pants are down and son’s penis is exposed;
• his evidence changes regarding who was doing the laundry; and
• sleeping naked and the grandson comes a second time to visit him and does not make a real effort to direct him to go to his own apartment;

[65] The Accused’s previous criminal record noted in para. 51 of this judgment does not factor into my assessment of credibility.

[66] I am not left with a reasonable doubt by the evidence of the Accused given the inconsistencies in his testimony. For example, there is conflicting evidence between his statement regarding being covered to the waist not corresponding with the Complainant’s Mother’s testimony that only their heads were exposed.

[67] However, on the basis of the evidence as a whole, I am not convinced beyond a reasonable doubt of the guilt of the Accused.

[68] The Court finds that the Crown has failed to prove the charges against the Accused beyond a reasonable doubt because:

• The Mother’s evidence is not reliable due to the number of inconsistencies;
• the Mother did not observe any inappropriate sexual touching, nor did she observe any hand movements under the cover;
• there was no evidence from the Complainant. There was no out of court statement introduced under R. v. Kahn, [1990] 2 S.C.R. 531, videotaped interview, or admission of previously given evidence pursuant s. 715 of the Code. The Court has been told that the child has some learning disabilities and issues with speech but there was medical evidence setting out the exact nature of his disability and how that would impact on a statement from him;
• there was no DNA found on the Complainant’s rectal and penile swabs;
• despite the Accused being aware of the reason for the police interview and agreeing to suggestions by the detective, statements that he made indicating that he “would not do it again” merely insinuates that he has done something that he will not repeat. He does not specify what he will not do again;
• it is a fact that the Complainant would go up to the Accused’s bedroom on occasion to wake him up. Both the Accused and the Mother agreed to this fact. Nobody is suggesting that the Accused lured the Complainant up to his room, but rather, it was a phenomenon in that household. Having said this, there are a number of other reasonable inferences as to why the child was in the Accused’s bed with his pants and shorts down other than inappropriate sexual activity;
• although the expert evidence was helpful to the Court, it was not conclusive as:
  • Ms. Matte could not say how long the semen was on the Complainant’s underwear;
  • Ms. Matte could not definitively state that semen was placed there by a sexual act;
  • Ms. Matte felt it could be possible that the Complainant could have the P30 component as per the study, although, indicated two tests were conducted to determine semen; and
  • Ms. Matte could not definitively state that the Accused’s DNA came from the semen on the Complainant’s underwear.

[69] Therefore, the Court is left with a reasonable doubt that the offences of sexual interference or sexual assault have been made out.

[70] For the above reasons, I find that the Crown has failed to prove the charges beyond a reasonable doubt. Accordingly, the charges are dismissed.

Justice A. Doyle

Date: February 19, 2019