WARNING The court hearing this matter directs that the following notice should be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4 of the Criminal Code:
(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
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.
Her Majesty the Queen v. W.P., 2019 ONSC 1240
Oshawa Court File No.: CR-18-14735-00 Date: 20190222 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – W.P. Defendant
Counsel: S. O’Neill, for the Crown D. Barrison, for the Defendant
Heard: January 28, 30 and 31, 2019 Delivered Orally
DAWE J.
1The defendant W.P. stands charged on a five-count indictment alleging that he committed various offences against an eight-year-old boy named C.C., as detailed below. C.C.’s father J.C. and the defendant are both truck drivers and at the relevant time were close friends. In August 2017 W.P. took C.C. with him in his truck on a four-day working trip during which they travelled to Montreal and the Toronto area. C.C. later alleged that on two different occasions during the trip the defendant committed acts of sexual misconduct while they were together in the truck.
2Based on C.C.’s allegations Mr. P. stands charged with the following offences:
Count 1: Sexual assault (Criminal Code, s. 271) Count 2: Sexual interference (Criminal Code, s. 151) Count 3: Invitation to sexual touching (Criminal Code, s. 152) Count 4: Making sexually explicit material available to a child for the purpose of facilitating a sexual assault (Criminal Code, s. 171.1) Count 5: uttering a death threat (Criminal Code, s. 264.1)
3All counts name C.C. as the alleged victim and particularize the offences as occurring between August 22-25, 2017 in either Ontario or Quebec. [1]
4The defendant elected to be tried by judge alone in the Superior Court of Justice. The Crown called two witnesses – C.C. and his mother K.L. – and also adduced recordings of two statements C.C. made to the police about a week after the trip. The parties agree that C.C.’s second statement, which was video-recorded, meets the conditions for substantive admissibility under s. 715.1 of the Criminal Code. They also agree that C.C.’s audio-recorded first police statement – which does not incriminate the defendant – is necessary to give context to his second police statement.
5C.C., who was nine years old at the time of trial, testified via closed-circuit television from outside the courtroom with the assistance of a support person. He nevertheless found testifying very difficult and on the second day of his evidence, before defence counsel had completed his cross-examination, C.C. left the video room and would not return. As discussed further below, I concluded that in all the circumstances the resulting impairment of the defendant’s right to make full answer and defence did not rise to the level where it was necessary to grant a mistrial or enter a stay of proceedings. However, with the Crown’s agreement, I allowed the defence to adduce the transcript of C.C.’s preliminary inquiry testimony to establish certain further inconsistencies on which C.C. had not yet been cross-examined.
The evidence
6In August 2017 C.C. lived with his mother K.L. His father J.C. lived elsewhere but would occasionally visit their apartment and stay over. K.L. considered W.P. a family friend and testified that he and C.C. were “good buddies”. She could not recall them ever being alone together apart from one time when they were all on a trip together and C.C. had asked to spend the night in the sleeper cab of W.P.’s truck while his parents slept in their own truck parked alongside.
7C.C. testified that the August, 2017 trip with W.P. was his father’s idea. He and W.P. left on the evening of Tuesday August 22, 2017 and returned home on Friday August 25, 2017. C.C. was not sure exactly where they went during the trip but believed they drove to Montreal and possibly to New York State, before going to Toronto and Mississauga to drop off a load and then returning home. The trip had been planned to last for one or two nights, but they ended up staying away for three nights. C.C. testified that he spoke by phone with his father and asked to stay a day longer because he was having a good time.
8C.C.’s mother K.L. testified that she never spoke to C.C. while he was away. She recalled that at one point when C.C.’s father and W.P. were talking on the phone she had asked to speak to C.C. to see how he was doing, and overheard W.P. telling J.C. that C.C. was fine but that this was “the best time [for him] to have a break from [his parents]”.
9K.L. testified further that on August 25, 2017 W.P. called her to say they were on their way home, and also reported that C.C. had “had an accident” and defecated in his pants. Accordingly, when C.C. arrived home K.L. got him a change of clothes and prepared to put him in the shower. As she was doing so C.C. said: “Mommy, guess what [W.] let me do? He let me put lube on myself, on my private, and we watched a porno together”. K.L. decided not to pursue the matter further with C.C. immediately, and after he finished showering he went to the park with his father and W.P. and some other family friends who were visiting to try out a new bike his father had bought him.
10Later that evening K.L. received a call from a friend who told her that W.P. wanted to speak with her. When she called W.P. he was, “crying, like upset, crying profusely” and asked her to call him back once C.C.’s father had left. After this conversation K.L. told C.C.’s father J.C. what their son had said to her earlier, and they both confronted C.C. about it. According to K.L., C.C. “tried to cover it up” by saying “Oh, no, when we were driving the truck [W.’s] bag fell down and there was lube in it and I just wanted to see, it was my fault.”
11K.L. then called W.P. again and asked him what had happened. She testified that W.P. explained to her that C.C. had come across a pornographic video on W.P.’s tablet device. Mr. P. told K.L. further that at one point he had gone out for fuel and come back to find C.C. on the bed in the sleeper cab of the truck “playing with himself” and “begging [W.P.] to watch porno or do something”. K.L. could not remember exactly what W.P. told her, but recalled him also mentioning that C.C. had spoken of walking in on his parents while they were having sex. (K.L. confirmed at trial that this was something that had actually happened on two occasions).
12K.L. called the York Regional Police the next morning, but they did not interview C.C. until late the following week. K.L. testified that before C.C. was interviewed by the police she avoided talking to him about the details of what had happened during the trip and “didn’t push or pry or discuss anything with him”. However, she agreed that she made it clear to C.C. that she wanted him to tell the truth to the police “so that him and [W.] could both get help”.
13During the days before the police interviews, and for another week or two afterwards, C.C. continued to have frequent “accidents” and would soil his pants two or three times a day. According to K.L., this was the first time C.C. had done this since he was a baby. However, C.C. testified that he had been having similar “accidents” since he was about four years old, although they became more frequent in the weeks following his trip with W.P.
C.C.’s first police statement (August 31, 2017)
14On August 31, 2017 Det. Sean McConnell came to K.L. and C.C.’s apartment to interview C.C. The interview was audio-recorded. After some initial conversation, Det. McConnell told C.C.:
Your mom tells me, and I’ve spoken with your mom a couple of times, that when you came home on Friday you said something about masturbating with [W.].
15C.C. proceeded to explain that while playing a game on W.P.’s tablet he had come across a pornographic video file labelled “me and my friend masturbating on the couch”. The video had started playing and W.P. had told C.C. not to watch it and to put the tablet away. At trial, C.C. agreed that W.P. had said “it’s for adults and you shouldn’t see it”. C.C. testified further that this incident happened at some point after the first night of the trip, and that at the time he had been sitting on the bunk in the sleeper cab and W.P. had been driving the truck. Although C.C. told Det. McConnell during the interview that he did not know the meaning of the word “masturbate”, at trial he testified that a friend at camp had actually explained the term to him earlier that summer.
16As the August 31 interview continued, C.C. told Det. McConnell that later in the trip the truck had gone over a bump and a bottle labelled “latex lubricant” had fallen out of W.P.’s bag. C.C. had picked up the bottle and put it back, and when he asked W. P. why he had it, Mr. P. had replied that it was for “grownups” and that it was none of C.C.’s business. In his police statement, C.C. had added the further detail that W.P. had “used a pole” to make what Det. McConnell described on the audio recording as a “rubbing motion with his hand”. However, when cross-examined about this at trial C.C. explained that the “pole” was actually a small screwdriver, and he described W.P. as having waved it with one hand rather than as rubbing it. C.C. was also cross-examined at length about having testified at the preliminary inquiry that the bottle was labelled “Durex”. He eventually agreed that he had not actually seen these words on the bottle but had assumed it was a Durex product because he had seen them at the drug store and believed Durex to be “a dirty company”. C.C. also explained in cross-examination at trial that he knew what lube was because at some point before the trip one of his friends had told him it was slippery.
17When Det. McConnell pressed C.C. during the August 31 interview about whether he had ever seen W.P. masturbate during the trip, C.C. told him that during the second night of the trip, while they were parked at a truck loading dock in Montreal, C.C. had been sleeping in the top bunk of the truck cab and had woken up and looked down at W.P., who was in the bottom bunk. According to C.C., W.P. “was just putting his hand down his pants and rubbing his penis”, and said “oh yeah, I love this shit”. C.C. explained that he could not actually see W.P.’s penis. They did not speak, and W.P. did not seem to know that C.C. had woken up. At trial, C.C. was cross-examined about his recollection of this incident and initially agreed that he could not remember whether W.P. had been lying on his side or on his back. However, when questioned further about whether W.P. would have seen C.C. leaning out of the top bunk and looking down at him, C.C. said he now remembered that W.P. had been lying on his side facing the wall. After further cross-examination he acknowledged that he did not actually remember seeing this and had just said it to explain why W.P. had not seen him.
18In his August 31 statement, C.C. responded to further pointed questioning by Det. McConnell by denying that W.P. had ever asked to see C.C.’s penis, that W.P. had ever touched C.C.’s private parts, or that they had ever masturbated together. However, in response to Det. McConnell’s further questions about masturbation, C.C. described another time when Mr. P., while fully clothed, had as a joke made a hand motion simulating masturbation.
19When Det. McConnell asked C.C. during the August 31 interview if he had ever seen W.P. watching pornography on his tablet, C.C. said that during the second day of the trip, when he was sitting on the bottom bunk in the sleeper cab, he had heard a moaning sound from the top bunk which he thought was W.P. watching pornography, although C.C. did not actually see what W.P. was doing. However, when Det. McConnell asked C.C. why W.P. would have been in the bunk during the day, C.C. responded that W.P. had actually been driving the truck at the time and had been watching his tablet device with it clipped onto an air vent in the cab. In cross-examination at trial, C.C. eventually agreed that this latter account was untrue and that he had just made it up when confronted with the implausibility of his original account placing W.P on the bunk during the day.
20In his August 31 statement C.C. explained further to Det. McConnell that he had defecated in his pants during the trip after W.P. made a joke that caused C.C. to laugh so hard he lost control. C.C. did not know why he was continuing to have similar accidents after getting home.
21C.C. also explained that at one point during the trip he had had a bad headache and that W.P. had given him half of an extra-strength Tylenol, and when this did not make C.C. feel better, had given him the other half.
C.C.’s second police statement (September 1, 2017)
22The next day (September 1, 2017) C.C.’s mother took C.C. to the police station for a second interview by Det. McConnell. She knew from the officer that during the first interview the previous day C.C. “did not disclose that [W.] had done anything”.
23C.C.’s second interview at the police station was video-recorded. During the first portion of the interview C.C. repeated what he had told Det. McConnell the previous day and maintained that he had nothing further to tell. This led to the following exchange:
Det. McConnell: Okay. Is there anything else that happened [C.] that I should know about? Your mom seems pretty worried about you that something happened on the trip more than what you’re saying. C.C. Well my mom was worried about [W.] did something to me. Det. McConnell: Yeah, and … C.C. Like … Det. McConnell: …and we’re all a little worried, we just want to make sure you’re safe, right buddy? C.C. I was worried too because I felt … I felt dizzy when he gave me the pill.
24C.C. went on to explain that after taking the pill – which he had previously described as a Tylenol tablet – he “felt dizzy” and went to sleep. This led to the following exchange:
Det. McConnell: OK. Do you think [W.] did anything to you while you were sleeping? C.C. I think so.
25C.C. proceeded to explain that he thought he felt someone touch his legs while he slept but that he did not open his eyes and thought it might have just been the truck going over a bump. When Det. McConnell pointed out that W.P. could not have touched C.C. in the bunk while he was driving the truck, C.C. said that the truck had actually been stopped. However, he continued to maintain that he had not opened his eyes or seen anything.
The masturbation allegation
26Det. McConnell then asked C.C.:
Det. McConnell: Did anything happen with your private parts? Remember we talked about private parts? Did anything happen with [W.] and your private parts? C.C. Mm-mm. Det. McConnell: No? When you came home from the trip, uh, with [W.], how come you told your mom that you guys watched porn and masturbated? C.C. Well [W.] watched it and he told me to come over here and masturbate with me and I said no, I don’t want to, and I said and … and … and … he forced me to.
27C.C. went on to explain that this had happened on the third day of the trip, and that W.P. had been sitting on the bunk and said: “Come and masturbate with me now or I will threaten you”, and had then added “[o]r I will kill everybody you know”. When C.C. sat beside him W.P. put his hand down C.C.’s pants and touched C.C.’s penis for about a minute, without saying anything. When C.C. began to cry W.P. had told him not to worry and said “it’s gonna be okay”.
28This led to the following exchange with Det. McConnell:
Det. McConnell: And what about the lube, did he use the lube? C.C.: I think so. Det. McConnell: You think so? Why do you think so? C.C.: Because there was slippery stuff on his hand.
29C.C. went on to explain that he had not told the officer about this incident the previous day because he felt embarrassed talking about it while at home. He then said that W.P. “[P]robably lied to you that he said no I didn’t … [b]ecause he doesn’t wanna get arrested of rape”, explaining that he knew about rape because his dad’s boss had drugged a woman and “started having sex with her”.
30Det. McConnell then asked: “[W]hen he asked you to masturbate … were you guys watching pornography?” C.C. replied that they had indeed been watching pornography on W.P.’s tablet and went on to describe the video in some detail. C.C. then explained that the masturbation incident had actually occurred on the second day of the trip, and added that they had been in Montreal, parked at a rest stop with a sign that read: “Wilbert Street East rest area”. He maintained that nothing else had happened during the trip and that “after that we had fun”. At trial, when defence counsel put it to C.C. that there was no such place as the “Wilbert Street East rest area”, C.C. explained that he had seen a glimpse of the letters “W-I-L” and had assumed the rest.
31Although in his September 1, 2017 police statement C.C. had described W.P. as putting his hand down C.C.’s pants and touching C.C.’s penis, C.C. resiled from this claim in cross-examination at trial, testifying that while he and W.P. had both masturbated they had each kept their pants on and neither had touched the other. He testified at trial: “[W.P.] put the pornography on and then he started masturbating, and then I started masturbating”. This led to the following exchange with defence counsel:
Q: Is he using his hand on … is he touching your penis with his hand? A: No. Q: OK, he’s just touching himself? A: Yeah. Q: OK, where’s the tablet? A: The tablet is right in front of his … right in front of me. Q: Right in front of you? A: Yeah. Q: Who’s holding it? A: [W.] Q: OK, so [W.’s] holding that, right? A: Mm-hm. Q: And so he has one hand on his penis and the other hand holding the tablet? A: Mm-hm. Q: Is that right? A: Yes. Q: And he’s not touching you, right? A: No.
32C.C. was cross-examined further at trial about the comment he made to his mother when he got home, and agreed that he had said it as a joke and that he had not been afraid of W.P. at the time. This led to the following exchange:
Q: And the reason that you weren’t afraid of [W.] was because he never threatened you, did he? A: No. Q: He didn’t say, “Come over here or I’ll threaten you”, right? A: No, he didn’t threaten me. Q: And he never said “I’m going to kill everybody you know”, right? A: No, he just said “Come masturbate with me”. Q: So why did you lie about the threats? A: To … I don’t know.
33At the conclusion of the trial Crown counsel invited me to acquit Mr. P. on the uttering threats charge (Count 5).
34As noted previously, I permitted the defence to adduce the transcript of C.C.’s preliminary inquiry testimony in order to mitigate the impact of C.C.’s refusal to submit to further cross-examination. At the preliminary inquiry C.C. had denied ever hearing the word “masturbate” at the time of the trip and had denied that W.P. had used this word, testifying that his actual words had been: “Come rub his penis with me”.
The dildo allegation
35During the September 1, 2017 video interview, Det. McConnell followed his questions about the masturbation incident by asking C.C. if anything else had happened that the officer should know about, to which C.C. replied: “No, that’s all”. This led to the following exchange:
Det. McConnell: So … and I know this is a little embarrassing to talk about, but what’s going on with the pooping in your pants buddy? C.C. I don’t know. Det. McConnell: How often does that happen on every day? C.C. Like once or twice. Det. McConnell: Yeah. And you … do you … you just don’t feel it happening? And you don’t know why that’s happening? Does your bum hurt at all? When you were on the trip with [W.] did your bum hurt at all? Did you feel anything in your bum? And you don’t remember [W.] doing anything to your bum? It’s okay if something happened buddy, you can tell me, you’ve already told me a lot. Do you remember anything happening with your bum, why … why would this be happening? Why? C.C. Well I felt like this sort of object kind of, like a dildo, ‘cuz I know what it’s called, it’s basically a plastic penis. Det. McConnell: Okay. C.C. And … Det. McConnell: So what happened. C.C. Well I felt this shape like a mushroom … and then it was like shoved up my … bum.
36C.C. later added the further details that the dildo “looked like a black penis”, that at the time of the incident he had been lying in the bottom bunk of the sleeper cab, and that this incident had occurred earlier in the trip than the masturbation incident he had previously described. C.C. initially placed the dildo incident on Tuesday night but later said he did not recall when it happened, and still later agreed with the officer’s suggestion that it had been “around day two of your trip” (i.e, on Wednesday). Although at one point during the interview C.C. said he thought the incident had taken place during the day, he later explained that he remembered it being dark and that it had probably been nighttime.
37C.C. initially told Det. McConnell that during the incident: “I said what are you doing and he said oh nothing and I just fell back to sleep”. However, a short while later C.C. said that the man never said anything during the incident.
38C.C. initially told Det. McConnell that while he thought “[W] did [it] maybe” he wasn’t sure of this because the man “didn’t look like [W.P.] a little”, because the man had black hair while W.P.’s hair was brown. C.C. then agreed with Det. McConnell’s suggestion that “this was somebody different who did this to you”. However, a short while later C.C. and the officer had the following exchange:
Det. McConnell: Do you think it was [W.] who did this? C.C. I think so. Det. McConnell: Do you think so? ‘Cuz it was just you and [W.] in the truck, right? C.C. Yeah.
39When Det. McConnell later asked C.C. if he thought “it probably was [W.]”, C.C. replied: “It might have been [W.]”.
40C.C. told Det. McConnell that the dildo incident lasted for one minute, explaining: “I saw the clock and it said one minute, fifty nine, fifty eight, fifty seven, fifty six”. At the preliminary inquiry he testified that this clock had been a stopwatch on the man’s phone, and that the man had stopped when the timer reached zero. However, when cross-examined about this at trial C.C. said that he did not remember seeing a clock counting down but guessed it was true because he had said it. This led to the following exchange:
Q. Would you have told the officer anything that’s not true? A. Just because I wanted people to listen. Q. So you would tell the officer something that’s not true because you wanted people to listen? A. People to not neglect me.
41It was shortly after this exchange with defence counsel that C.C. left the video room and refused to return.
42K.L. testified at trial that after C.C.’s police statements she took him to be medically examined at hospitals in both Oshawa and Toronto and was later advised that the doctors had found no external or internal injuries. While defence counsel recognized that K.L.’s evidence on this point was hearsay, Crown counsel fairly acknowledged that the point was not in dispute and that the Crown was not alleging that C.C. had sustained any injuries.
The impact of C.C.’s refusal to continue testifying on Mr. P.’s right to make full answer and defence
43As noted previously, C.C. found testifying very difficult. During his first day of testimony he was cross-examined into the afternoon but eventually stopped answering questions, and after a recess would not come back to the video room. At Crown counsel’s suggestion and with the defence’s agreement I adjourned the trial for two days to give C.C. an opportunity to recover. When C.C. resumed testifying two days later he was cross-examined for approximately an hour before leaving the video room and refusing to return. Both counsel agreed that at this point a further adjournment of the trial would probably be futile.
44The right to cross-examine is a fundamental aspect of a fair trial. However, the fact that a prosecution witness cannot be subjected to full defence cross-examination does not automatically mean that the trial cannot continue to a decision on the merits. The leading case on this issue in the particular context of child witnesses is the decision of Cromwell J.A. (as he then was) for the Nova Scotia Court of Appeal in R. v. Hart, 1999 NSCA 45, 135 C.C.C. (3d) 377. Cromwell J.A.’s analysis was adopted by the Ontario Court of Appeal in R. v. H.(T.), 2017 ONCA 485, where McPherson J.A. stated (at para. 38):
After a careful review of relevant common law and Charter principles and Canadian, English and American authorities, Cromwell J.A. identified three factors that should be taken into account in determining whether the unresponsiveness of a child witness during cross examination denies an accused the right to make a full answer and defence and renders the trial unfair: (1) the reason for the unresponsiveness; (2) the impact of the unresponsiveness; and (3) possibilities of ameliorative action: Hart, at pp. 410-414; see also R. v. Cameron (2006), 208 C.C.C (3d) 481 (Ont. C.A.); and R. v. Duong, 2007 ONCA 68, 84 O.R. (3d) 515.
45In Hart, Cromwell J.A. explained the first of these factors as follows (at p. 410 C.C.C.):
The reason for the unresponsiveness is somewhat analogous to the necessity criterion for the admissibility of hearsay evidence. Before evidence is admitted without a full opportunity to cross-examine, there should be a valid and important reason for doing so. This suggests that if the unresponsiveness could have been avoided by reasonable action or if evidence of the same value is or could have been available in some other way and within a reasonable time, the evidence generally should not be admitted without full cross-examination.
46In the case at bar neither party can be faulted for C.C.’s refusal to continue testifying. Crown counsel took all available steps to make the process of giving evidence as easy for C.C. as possible, including adducing his video-recorded statement for its truth under s. 715.1 of the Criminal Code and arranging for him to testify from a video room with a support person present. Likewise, defence counsel not only consented to these measures but conducted his cross-examination of C.C. in an age-appropriate manner. I was accordingly satisfied that there was nothing further that could realistically have been done in the circumstances to permit further cross-examination of C.C. within a reasonable time.
47The second Hart factor required me to consider “the importance of the evidence to the case and whether there is a satisfactory basis, notwithstanding the unresponsiveness, upon which the trier of fact can evaluate the evidence” (Hart, supra at p. 412 C.C.C.). In this case, C.C.’s evidence was essential to the Crown’s case. However, I was nevertheless satisfied that I would be able to satisfactorily assess C.C.’s evidence even though the defence had not been able to finish cross-examining him. In Hart, Cromwell J.A. noted (at p. 412 C.C.C.):
The trial judge should also consider the extent and effect of the cross-examination that has been conducted as well as counsel’s submissions on any areas of cross-examination that were not pursued because of the unresponsiveness. The onus is on cross-examining counsel to place those submissions before the trial judge.
48In this case, the defence had been able to cross-examine C.C. for several hours. Defence counsel advised me that he had not fully completed his cross-examination of C.C. on the dildo allegation, and that he had intended to cross-examine C.C. further about the allegations of inappropriate but non-criminal conduct that C.C. had first made in his audio-recorded first police statement. However, defence counsel advised me that the most significant area of cross-examination he had not yet reached concerned C.C.’s knowledge of sexual terminology, which he explained was important in light of C.C.’s mother’s anticipated testimony (she had not yet testified at this point) that her son was generally ignorant of such things. In the circumstances of this case, I concluded that I could properly take into account the defence’s inability to fully cross-examine in these areas when weighing the evidence on these issues.
49In relation to the third Hart factor, I invited counsel to consider whether there was any further ameliorative action I could take, such as admitting C.C.’s preliminary inquiry testimony (see T.H., supra). Both counsel subsequently agreed that C.C.’s preliminary inquiry testimony transcript should be entered as an exhibit and considered by me when assessing C.C.’s evidence.
Analysis
General principles
50As in any criminal case, my task as the trier of fact is to determine whether the evidence establishes Mr. P.’s guilt on any or all of the charges against him on the criminal standard of proof beyond a reasonable doubt. The Supreme Court of Canada has explained that a reasonable doubt is not an imaginary or frivolous doubt, or one based upon sympathy or prejudice, but is a doubt based on reason and common sense that is logically derived from the evidence or absence of evidence. It is not sufficient for me to conclude that W.P. is probably guilty of some or all of the charges against him, and although I do not have to be absolutely certain of his guilt in order to convict him, the standard of reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities” (R. v. Starr, 2000 SCC 40 at para. 242). In short, in order to find Mr. P. guilty of any of the counts against him I must be sure, based on the evidence before me, that he committed all of the essential elements of the offence charged in that count.
51Crown counsel has also properly reminded me of the special considerations that apply in cases where the prosecution’s case rests primarily on the evidence of a child witness. It would be an error for me to automatically discount C.C.’s evidence merely because of his age, and it would also be wrong for me to assess his evidence in the same manner that I might assess the testimony of an adult witness (see R. v. W.(R.), [1992] 2 S.C.R. 122). I must also caution myself against relying on outdated or stereotypical assumptions about how a young sexual assault victim “ought” to behave. At the same time, in view of the criminal burden and standard of proof it would also be wrong for me to simply accept C.C.’s evidence uncritically. Rather, I must assess his evidence on “a ‘common sense’ basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case” (W.(R.), supra at para. 25).
52I must also bear in mind that Mr. P. does not bear any burden to explain why C.C. would make up false allegations against him. Rather, it is the Crown’s burden to persuade me beyond a reasonable doubt that C.C.’s allegations are true.
53Finally, I caution myself about placing undue reliance on C.C.’s testimonial demeanour. As the Ontario Court of Appeal has observed, “while demeanour is a relevant factor in a credibility assessment, demeanour alone is a notoriously unreliable predictor of the accuracy of evidence given by a witness” (Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, at para. 66).
The counts in the indictment
54All five counts in the indictment were framed to span the entire duration of the trip. As noted previously, C.C. alleged two separate incidents of sexual misconduct on different days – the dildo allegation, which he said happened first, and the masturbation allegation, which he said happened later in the trip. If I am satisfied on the criminal standard of proof that either of these incidents happened in the manner C.C. alleged in his second police statement, this would provide a basis for finding Mr. P. guilty on Counts 1 and 2 (the sexual assault and sexual interference charges). However, since C.C.’s account of the dildo incident did not allege any conduct by Mr. P. that would be captured by Counts 3 to 5, it is common ground that these counts must be understood as relating exclusively to the masturbation allegation.
Positions of the parties
55The Crown urges me to find Mr. P. guilty on Counts 1 to 4. Crown counsel acknowledges that C.C. admitted in his trial testimony that some of the things he told the police – including his allegation that Mr. P. had threatened him during the masturbation incident – were untrue, and accordingly invites me to acquit Mr. P. on the uttering threats charge (Count 5). However, the Crown emphasizes that even though C.C. admitted to telling some falsehoods he did not resile from the core of his allegations against W.P. Crown counsel argues that I should treat C.C.’s willingness to admit to telling some lies to the police as a factor bolstering the credibility of his remaining evidence. The Crown also emphasizes that C.C.’s initial statement to his mother was made spontaneously without any prompting from her.
56The defence takes the position that C.C. is a completely unreliable witness. Defence counsel argues that it would have been obvious to C.C. by the time of his second police interview that his mother was convinced that something untoward had happened during his trip with Mr. P., and that she and Det. McConnell both believed that C.C. was still withholding the truth from them and had been lying when he had denied during the Friday interview that anything further had happened. The defence argues that this would have given C.C. a strong incentive to invent a story that inculpated Mr. P. and to do so by building on the suggestions that Det. McConnell made to him during the second police interview on Saturday.
Assessment of the evidence
57I agree with the Crown that C.C.’s admitted lies to the police must be considered on a different footing than similar lies told by an adult. For instance, it is easy to imagine why a young child of C.C.’s age might, out of embarrassment, invent a story about being threatened in order to explain why he participated in sexual activity with an adult. Accordingly, I accept that C.C.’s admitted lies to the police may not undermine his testimonial credibility to the same degree they would if he were an adult witness. However, in my view it goes too far to treat C.C.’s willingness to admit these particular lies as a positive indicator that the rest of his evidence is true. In substance, the Crown’s argument on this point comes close to an invitation to rely on “the prohibited inference that consistency enhances credibility”: R. v. Khan, 2017 ONCA 114 at para. 41. Moreover, C.C. only admitted his lies to the police under cross-examination at trial, after initially repeating them and presenting them to me as the truth. In my view, the falsehoods C.C. admitted telling the police remain a matter of some real concern when assessing his credibility and reliability as a witness, even if they are less troubling than similar lies told by an adult witness might be.
58However, C.C.’s admitted lies are not the only cause for concern about the veracity and reliability of his evidence, or necessarily even the most serious. In my view, the manner in which C.C.’s allegations were first elicited from him by the police is highly problematic. While the Crown correctly points out that C.C.’s initial utterance to his mother that W.P. “let me put lube on myself, on my private, and we watched a porno together” was made spontaneously, this initial utterance did not expressly allege any sexual touching by W.P. Moreover, C.C. agreed in cross-examination that he said this to his mother as a joke. The spontaneity of C.C.’s utterance does not eliminate the possibility that he was joking and perhaps trying to shock his mother by using sexual terminology that she did not believe he would know. In this regard, while I generally accept K.L.’s evidence on most points, I am not satisfied that she necessarily knew the full extent of her son’s familiarity with sexual matters. C.C. testified at trial about certain things he had learned from friends, and I am mindful that this was the main area of cross-examination defence counsel had not yet reached when C.C. refused to continue testifying. In any case, it cannot be safely assumed in the digital era that a child of C.C.’s age who, like C.C., has access to the internet [2] will necessarily remain ignorant of sexual matters merely because these matters are not discussed openly at home.
59It is also significant that when C.C.’s parents first questioned C.C. about his earlier comment to K.L. he appears to have given them a similar account to the account he later told the police in his first non-inculpatory statement, explaining that what had actually happened was that a bottle of personal lubricant had accidentally fallen out of W.P.’s bag. While K.L. evidently disbelieved this explanation and thought her son was trying to “cover up” the truth, C.C. maintained in his police statements and at trial that this story was true, although in his second police statement and at trial he said that it was not the whole truth. While I agree with Crown counsel that C.C.’s explanation that he was too embarrassed to tell Det. McConnell the whole truth during the first interview on Friday at his home is reasonably plausible, the obvious competing possibility is that C.C. was telling the truth when he insisted during the Friday interview that nothing else had happened during the trip. In this regard, I agree with defence counsel that when C.C.’s mother took him to the police station to be re-interviewed by Det. McConnell the next day it would have been obvious to C.C., who presents as a very intelligent child, that both his mother and the officer believed he was still withholding something important from them, and that the true story would inculpate W.P.
60In this context, I find the manner in which Det. McConnell proceeded to elicit C.C.’s further allegations against W.P. during the second interview to be extremely troubling. During the interview the officer repeatedly asked C.C. leading questions that plainly suggested the responses he was expecting or perhaps hoping to hear. To give a few examples:
- After C.C. told Det. McConnell that after taking the pill W.P. gave him – which C.C. had previously said was a Tylenol – C.C. felt dizzy and went to sleep, the officer asked C.C.: “Do you think [W.] did something to you when you were sleeping?”;
- When this line of questioning did not bear fruit, Det. McConnell asked C.C.: “Did anything happen with [W.] and your private parts?”, and reminded C.C. – inaccurately, according to K.L.’s evidence – that C.C. had “told [his] mom that you guys watched porn and masturbated”; [3]
- When C.C. gave his initial account of the masturbation incident, in which he did not say anything about lubricant having been used, Det. McConnell asked C.C.: “And what about the lube, did he use the lube?”;
- C.C. said nothing about having watched pornography with W.P. until Det. McConnell prompted him to add this to account by asking: “[W]hen [W.P.] asked you to masturbate, … were you guys watching pornography?”;
- A short while later in the interview, Det. McConnell pressed C.C. to explain why he had been “pooping his pants” and asked him:
“Did you feel anything in your bum? And you don’t remember [W.] doing anything to your bum? It’s okay if something happened buddy, you can tell me, you’ve already told me a lot. Do you remember anything happening with your bum, why … why this would be happening? Why?”
61On a close examination of the interview record, much of the specific detail of C.C.’s allegations against W.P. – including his claims that they masturbated together, that W.P. touched his penis and used lubricant while showing him pornography, and that on a different occasion someone who might have been W.P. inserted an object up C.C.’s rectum – can potentially be traced back to Det. McConnell’s explicit suggestions. While this does not definitively establish that C.C.’s allegations against W.P. are false, it is at the very least consistent with the possibility that C.C. used Det. McConnell’s suggestions as building blocks to construct a false story that he thought the officer would believe and accept.
62This concern is exacerbated by C.C.’s tendency, both when making his police statements and when testifying at trial, to respond to the suggestion that something he said was implausible by adjusting his evidence to accommodate the objection. To give a few examples:
- When Det. McConnell suggested to C.C. during the first interview that it made no sense that W.P. would be lying on his bunk watching pornography during the day, C.C. immediately changed his account and said that Mr. P. had actually been watching pornography while driving the truck. He agreed at trial that this was not true;
- In his second police statement, C.C. initially told Det. McConnell that when he went to sleep after taking the pill he was not sure if he had felt someone touch his legs or if the truck had gone over a bump. When Det. McConnell pointed out that W.P. could not have touched C.C.’s legs if he had been driving the truck, C.C. immediately changed his story and said that he now thought they had been stopped;
- When defence counsel suggested to C.C. at trial that there was no such place as the “Wilbert Street East rest area”, C.C. immediately resiled from his previous claim that he had actually read this on a sign and gave a new and different explanation about what he had actually seen;
- When defence counsel at trial pointed out that C.C. would not have joked to his mother about lube and watching pornography if W.P. had actually threatened him, C.C. immediately resiled from his threatening allegation and admitted that there had actually been no threats.
63None of these examples are necessarily conclusive, and I am mindful of the special considerations I must apply when assessing evidence from a child witness. However, the malleability of C.C.’s narrative under pressure is at the very least consistent with the possibility that he is either an untruthful or an unreliable witness.
64Moreover, I am also troubled by some of the bizarre and dream-like aspects of C.C.’s account of the dildo incident. C.C. told Det. McConnell that the dildo incident “happened while [he] was asleep”, and that he awoke to find a man who resembled W.P. but whose hair was a different colour inserting an object into C.C.’s anus. Even leaving aside the arguable implausibility of C.C. actually being able to identify this object as a black dildo in the circumstances as he described them – he told the officer that it was dark in the truck cab and that he could not see very well – his further description of the perpetrator using a count-down timer and removing the dildo when the clock reached zero is so unusual as to strain credulity. C.C. acknowledged at trial that he no longer remembered this happening, and further acknowledged that he might have told the officer things that were untrue “because I wanted people to listen … [and] not neglect me”.
65My concerns about the veracity and reliability of C.C.’s account of the dildo incident, in particular, are reinforced by the extent to which his narrative changed as he first told the story to Det. McConnell. I appreciate that child witnesses’ memories of events often fade over time, and that there will often be inconsistencies between a child’s initial account and the evidence he or she gives in court months or years later. However, C.C.’s inability to keep his account to Det. McConnell consistent cannot so easily be explained away. Within the span of a few minutes, C.C. went from telling Det. McConnell that the dildo incident: (i) happened during the day; (ii) that he thought the perpetrator was “somebody different” from W.P., and (iii) that he and the perpetrator had a brief conversation before C.C. fell back asleep; to telling the officer that the incident actually: (i) happened at night; (ii) that he thought the perpetrator was W.P.; and (iii) that the perpetrator never said anything. While it may be unrealistic to expect a child who has just been awoken from sleep to have a perfect recollection of minor details, these rapid shifts in C.C.’s narrative are at the very least suggestive of the possibility that he was either inventing the story as he went along or that he was trying to impose some narrative coherence on a dim memory that could have simply been a bad dream.
Findings
66As noted earlier, my task in this case is not to decide what probably did or did not happen, but to determine whether W.P.’s guilt on the charges against him has been proved beyond a reasonable doubt. (As noted previously, Crown counsel acknowledged that the prosecution had not met this burden in relation to Count 5 and invited me to acquit Mr. P. on the threatening charge).
67The essential elements of the first two charges against Mr. P. – sexual assault and sexual interference – are slightly different: sexual assault requires proof of an objectively sexual touching [4], whereas sexual interference requires a touching that is motivated by a subjectively sexual purpose. However, in the circumstances here this distinction is of no practical consequence: if I were satisfied beyond a reasonable doubt either that W.P. touched C.C.’s anal region with dildo-like object, or that he touched C.C.’s penis with his hand, I would be obliged to find Mr. P. guilty on both Counts 1 and 2.
68However, I am not satisfied that the dildo incident described by C.C. actually happened, let alone satisfied of this to the very high degree of probability necessary to support a criminal conviction. For the reasons I have already laid out, I am not confident that C.C. did not simply make up this story in order to explain to Det. McConnell why he was continuing to have “accidents” in his pants. I can also not rule out the possibility that C.C. may have honestly but mistakenly confused something he dreamt with a genuine memory. For both reasons I am left with a reasonable doubt about whether this incident actually occurred. Indeed, if it were necessary for me to go further I would be inclined to find that the dildo incident probably did not happen. While C.C.’s difficulty controlling his bowels after he returned from the trip understandably worried his parents, on the evidential record before me it would be entirely speculative for me to jump to the conclusion that C.C.’s bowel issues were necessarily indicative of some kind of sexual trauma, let alone of anal penetration with an object.
69This finding by itself is not necessarily dispositive in relation to Counts 1 and 2, since the Crown would still be entitled to findings of guilt on these counts if I were nevertheless satisfied beyond a reasonable doubt that W.P. touched C.C.’s penis during the masturbation incident, as C.C. described in his video-recorded police statement. However, while C.C. adopted his video statement as true and continued to insist under cross-examination that the masturbation incident had actually happened, he ultimately resiled from the critical claim that W.P. touched him during this incident. On the new and different version of the masturbation incident he gave in cross-examination, he and W.P. both touched their own penises but W.P. did not touch him, and indeed could not have done so because both his hands were otherwise occupied. Even if I had no other reservations about the veracity of either of C.C.’s versions of the masturbation incident – which I do – I would be unable to reject C.C.’s new account of the incident as necessarily false. It necessarily follows that I must find Mr. P. not guilty on both Counts 1 and 2.
70However, it would not inevitably follow from this that I must also acquit W.P. on Counts 3 and 4. The offence in Count 3 – invitation to sexual touching – would be made out if I were satisfied beyond a reasonable doubt that W.P. asked C.C. to touch his own penis during the masturbation incident. Likewise, if I were satisfied beyond a reasonable doubt that W.P. showed C.C. a pornographic video during the masturbation incident it would be open to the Crown to seek W.P.’s conviction on Count 4 by inviting me to infer that W.P. acted for the purpose of facilitating a sexual assault at some point in the future, even if he did not actually commit a sexual assault on C.C. at this time. Accordingly, I must go on to consider whether I am satisfied beyond a reasonable doubt that the masturbation incident as described by C.C. either in his police statement or in his trial testimony actually occurred.
71I am not satisfied that it did. Although C.C.’s accounts of the masturbation incident cannot be discounted as inherently implausible, I cannot rule out the possibility that he made up the story by weaving together Det. McConnell’s suggestions during the second police interview in order to tell the officer the story that he thought the officer wanted to hear from him. It is at least reasonably possible that C.C. was telling the truth when he told Det. McConnell a day earlier that nothing else had happened during the trip. It is also reasonably possible that he was lying on both occasions and that something else did happen during the trip, but that the truth more closely resembled the version of events that W.P. described to C.C.’s mother K.L. Since I cannot eliminate these alternative possibilities, I cannot be sure that Mr. P. is guilty of any of the charges against him. He is accordingly entitled to acquittals on all counts.
72It bears repeating that the criminal standard of proof, by design, places a very high burden on the prosecution. It is easy to see why C.C.’s behavioural changes after he returned from the trip alarmed his mother, and understandable why she would conclude that he must have experienced some traumatic event. The possibility that something untoward did happen on the trip certainly cannot be ruled out. But much more is required to properly support a criminal conviction. On the evidence before me, I am not satisfied beyond a reasonable doubt that W.P. is guilty of any of the charges against him.
DAWE J. Released: February 22, 2019
NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions it is the official written Ruling that is to be relied upon.
Footnotes
1It is common ground that in the circumstances here any offences W.P. committed against C.C. in his truck while they were in Quebec are prosecutable in Ontario by virtue of s. 476 (c) of the Criminal Code, which provides that offences committed “in or on a vehicle employed in a journey” are “deemed to have been committed in any territorial division through which the vehicle … passed in the course of the journey”.
2C.C. testified that he had his own Wi-Fi enabled tablet device, and explained that he only borrowed W.P.’s tablet during the trip because W.P. had different games on his device.
3K.L.’s evidence at trial was that C.C. had told her that W.P. had let C.C. put lube on his own private parts, but had not used the term masturbation.