Court File and Parties
Court File No.: CR-18-192-AP Date: 2019-06-05 Ontario Superior Court of Justice
Between: Her Majesty the Queen, Respondent – and – M.T., Appellant
Counsel: Kara Vakiparta, for the Respondent P. Berk Keaney, for the Appellant
Heard: May 21, 2019
Decision on Appeal
Poupore, J.
[1] M.T. appeals his conviction entered on April 30, 2018, by Justice André L. Guay of the Ontario Court of Justice on the charge of invitation to sexual touching.
Background Facts
[2] The complainant is the granddaughter of the appellant. She was 6 years old at the time of the alleged incident and 7 years old when she testified. She gave evidence that the appellant let her touch his wiener (penis). She was in her grandparents’ bedroom on the bed with the appellant. He was lying on his back with his clothes on. She was between his legs or on him.
[3] The complainant testified that the appellant was awake when she touched him. She did so for maybe 1 minute or 30 seconds (later qualified in cross-examination to perhaps as little as 1 second). She touched it with two hands.
[4] The complainant testified she did not recall the appellant saying anything to her.
[5] In cross-examination the complainant confirmed that she told the police that the appellant said nothing to her at the time of the incident.
[6] It was three weeks after the incident that the complainant told her mother that the appellant let her touch his penis.
Arguments on Appeal
[7] The appellant contends that the trial judge made three errors.
- The trial judge lowered the burden of proof in assessing the complainant child’s evidence.
- The trial judge relied on the absence of evidence of motive to lie to bolster the complainant’s reliability.
- The verdict is unreasonable because it is based on speculative findings not based in evidence.
Discussion
[8] I need only deal with the third ground of appeal. In his reasons, the trial judge reviewed in detail the evidence of the complainant. At one point the trial judge stated:
I believe the evidence of the child complainant in this case, notwithstanding that she was not clear on every matter on which she was cross-examined. I have found her evidence to be both reliable and credible where it addresses the main elements of the charge.
[9] It is the last sentence of the above passage that gives me great difficulty.
[10] In her evidence, the complainant in chief stated at p. 9, line 26:
Q. Do you remember Grand-Papa saying anything to you? A. No.
[11] That was the only evidence led by the Crown on the essential element of “invitation”.
[12] In cross-examination, defence counsel asked the complainant about some questions and answers given during her police interview at p. 53, line 24 of the transcript:
Q. Joanne (the police officer) says, Okay, how do you know to touch his penis? Did he ask you to touch his penis? A. He didn’t ask me to. Q. He did? A. No he didn’t Q. He did? A. No he didn’t
[13] At trial the complainant confirmed that she was telling the truth to the police officer.
[14] There was some evidence at trial given by the complainant’s mother that the complainant was fascinated by bodies and that while much younger she would “sneak a peek” at her father's penis.
[15] The trial judge dealt with the essential element of an “invitation” to sexual touching at para. 47 of his reasons:
The experience was not traumatic to (the complainant) and would have satisfied her curiosity about the male penis, the event having taken place in the company of someone she liked. While she did not recall her grandfather actually speaking to her during the incident, it is impossible not to infer that he did invite her to do so by his words or action.
[16] In other words, the trial judge used the fact alone that the complainant touched her grandfather’s penis as circumstantial evidence of an invitation to touch for a sexual purpose. He did not consider any other reasonable inference, such as, she may have taken it upon herself to satisfy her curiosity.
[17] The trial judge did thoroughly review the evidence of the complainant and accepted it as “reliable and credible where it addresses the main elements of the charge.” What the trial judge did not do was explain why he did not accept the complainant’s clear and unequivocal evidence that the appellant did not say anything to the complainant at the time of the incident.
[18] Left undealt with, the complainant’s evidence was the only evidence at trial on the element of invitation to sexual touching. The trial judge’s inference that there must have been an invitation was therefore an error involving an essential element of the offence.
[19] Binie J. in R. v. Beaudry 2007 SCC 5, [2007] 1 SCR 190 at para.79 stated in part:
where the findings of facts essential to the verdict are “demonstrably incompatible” with evidence that is neither contradicted by other evidence nor rejected by the trial judge, such a verdict would lack legitimacy and would properly, I think, be treated as “unreasonable.”
[20] I am satisfied that the Crown did not prove the guilt of the appellant beyond a reasonable doubt. A new trial would not change the evidence of the complainant on the issue of an invitation.
[21] For those reasons the conviction shall be set aside and a verdict of acquittal shall be registered.
The Honourable Mr. Justice John S. Poupore Released: June 5, 2019