SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR-18-3-633

DATE: 20190115

RE: R. v. John Drinkwater

BEFORE: Koehnen J.

COUNSEL: P. Woods, Counsel, for the Crown

J. Razaqpur, Counsel, for John Drinkwater

HEARD: November 13, 14, 15, 19, 2018.

ENDORSEMENT

[1] John Drinkwater is accused of two counts of sexual assault under s. 271 of the Criminal Code and two counts of sexual touching under s. 151 of the Criminal Code.

[2] The alleged offences involve two boys who, at the time of the allegations were between approximately 6 and 14 years of age.

[3] Give that the complainants were children at the time of the alleged offences, I will refer to them by their initials A.W. and M.S.

The Allegations Concerning Mr. W

[4] Mr. W was born in 1988. He is now 30. He lived with his mother and 3 siblings. His father was not involved in his life. Throughout his childhood Mr. W and his family moved between various assisted housing projects and shelters.

[5] Mr. Drinkwater lived at one of the assisted housing projects. Mr. W’s mother asked Mr. Drinkwater to take care of her three children after school and during school holidays. After a short time, she invited Mr. Drinkwater to move in with her family as friends, not as a couple. Mr. Drinkwater was unemployed and on social assistance for much of the time he lived with Mr. W’s mother. He sometimes did odd jobs to earn money.

[6] The children, especially Mr. W, developed genuine affection for Mr. Drinkwater. He served as a type of father figure that they otherwise did not have. He gave them presents and spent time with them.

[7] It appears that this was not the only relationship of this sort that Mr. Drinkwater formed with single mothers with young children.

[8] The shelters and apartments in which Mr. W lived were small. The largest was a two bedroom apartment, often it was simply a single large room. Apart from Mr. W, his mother, 3 siblings and Mr. Drinkwater, there were sometimes as many as five other people staying in the same unit. As a result, sleeping arrangements were tight. People slept on couches, on the floor and shared beds.

[9] Initially Mr. Drinkwater and Mr. W’s mother shared a queen sized bed. Mr. W, then approximately 6, would crawl into bed with them. Mr. Drinkwater eventually moved to a separate bed, into which A.W. would also find his way.

[10] Mr. W testified that he would often wake up in the middle of the night and find Mr. Drinkwater’s hand on A.W.’s genitals. Mr. W would roll over and the touching ended for that moment. Mr. W. says he does not know if Mr. Drinkwater was awake when his hand was on Mr. W’s genitals. According to Mr. W, the nature of the touching never changed.

[11] Mr. W says he once mentioned the touching to Mr. Drinkwater at a young age. Mr. Drinkwater responded with words to the effect that Mr. W was no longer allowed to sleep in the same bed as Mr. Drinkwater. This made Mr. W, then still a young child, fear that Mr. Drinkwater would leave or disappear from his life, as a result of which Mr. W never mentioned it again.

[12] When Mr. W was approximately 13, Mr. W and Mr. Drinkwater were staying in the apartment of Mr. Drinkwater’s brother one night. The police entered in the middle of the night looking for Mr. Drinkwater’s brother. The police interviewed Mr. W. who denied anything was wrong and denied that Mr. Drinkwater had done anything inappropriate to him.

[13] Mr. Drinkwater says Mr. W. was sleeping in the same bed that night because Mr. W. had been sleeping on the floor, had wet himself and the floor, as a result of which he came into bed with Mr. Drinkwater. Mr. W denies this although he acknowledges that he wet his bed into his teens.

[14] Mr. W says he left his mother’s home as a teenager in order to get away from Mr. Drinkwater. It appears, however, that Mr. Drinkwater continued to play a role in his life until shortly before Mr. W complained to police. Mr. Drinkwater intervened on Mr. W’s behalf at least once on a disciplinary matter at Mr. W’s high school. At the time, Mr. Drinkwater let the school’s Vice-Principal believe that he was Mr. W’s father. After Mr. W became independent and lived on his own, he continued to invite Mr. Drinkwater to Thanksgiving and Christmas dinners as well as to the birth of his own children.

The Allegations Concerning Mr. S

[15] The allegations surrounding M.S. follow a similar pattern. Mr. S was born in 1995 and is now 23. His parents were divorced. M.S. and A.W. became friends.

[16] Mr. W, his mother, and siblings and Mr. Drinkwater, ended up moving into the same apartment building in which Mr. S lived with his mother.

[17] Mr. S spent time in A.W.’s apartment where Mr. Drinkwater also lived. After Mr. W moved out, Mr. S, who was approximately 7 years younger than Mr. W, continued to spend time with Mr. Drinkwater. At first it was occasional visits after school. As those visits became more frequent Mr. S’s mother replaced his regular after school babysitter with Mr. Drinkwater.

[18] Mr. Drinkwater fostered a closer connection with Mr. S. He gave him gifts and ultimately gave him a puppy from his own dog’s litter. The puppy led to an even closer bond in which Mr. S would spend several hours each day after school with Mr. Drinkwater walking their dogs together.

[19] Over this period Mr. S also began sleeping in Mr. Drinkwater’s apartment more frequently. What began as an occasional sleep over became more and more frequent. Eventually Mr. S would pass up visits with his own father, scheduled for every other weekend, to spend more time with Mr. Drinkwater. Mr. S came to describe Mr. Drinkwater as his godfather.

[20] During his examination-in-chief, Mr. S described the touching by Mr. Drinkwater as an almost natural progression. Things began with normal contact between close family friends. Over time it evolved to cuddling. Mr. Drinkwater’s television was located at the foot of his bed. The two would watch television together. Over time they cuddled while watching television. That evolved to Mr. Drinkwater having his hand on Mr. S’s stomach, thighs, penis and scrotum. The touching began at age 10. It occurred both through clothes and skin to skin. The touching lasted until Mr. S was approximately 14.

[21] When the touching occurred, Mr. Drinkwater’s hand would remain in one place. It was not a process of caressing or masturbation.

[22] During examination-in-chief I was left with the impression that much of the touching occurred while Mr. S and Mr. Drinkwater were awake. During cross-examination Mr. S stated that all incidents occurred while he was sleeping with Mr. Drinkwater. On those occasions Mr. S would wake up and find Mr. Drinkwater’s hand on Mr. S’s genitals. Mr. S was not sure if Mr. Drinkwater was awake when he found Mr. Drinkwater’s hand on his genitals.

[23] The evidence Mr. S gave in cross-examination is also consistent with what his girlfriend and his father testified Mr. S had told them when he revealed the touching to them in 2015.

[24] Mr. Drinkwater’s bedroom had two beds: a queen sized bed described as Mr. Drinkwater’s and a single bed. When Mr. S had sleepovers at Mr. Drinkwater’s apartment, he would often fall asleep watching television in Mr. Drinkwater’s bed. Instead of carrying M.S. to the single bed, Mr. Drinkwater would join M.S. in Mr. Drinkwater’s bed.

[25] As Mr. S was growing up, he was asked whether there was anything improper occurring with Mr. Drinkwater. He denied any impropriety. Mr. S.’s mother asked him and he denied it. Mr. S explained that he was afraid of what might happen if he complained. He was afraid that Mr. Drinkwater might not like him anymore, would hurt him or that Mr. Drinkwater’s brother, a man who all agree has a criminal record and is a disagreeable person, might hurt him.

[26] When Mr. S was in grade 10, police officers pulled him out of class and into a meeting with the Vice-Principal of his high school. The police asked M.S. about his relationship with Mr. Drinkwater. Mr. S denied that anything was amiss. When police asked about touching or sexual contact, Mr. S replied with words to the effect of “how do you guys come up with these things.”

[27] A few weeks after Mr. W disclosed allegations of touching to Mr. S in January 2015, Mr. S told his girlfriend that he too had been subject to sexual touching by Mr. Drinkwater. His girlfriend urged Mr. S to tell his parents which he did separately. When he told his father, Mr. S senior urged his son to report the allegations to the police. Mr. S’s father took him to the police then and there to report the allegations.

The Defence

[28] Mr. Drinkwater admits to sleeping in the same beds as A.W. and M.S. He denies that any sexual touching occurred and denies that he was grooming them to become sexual partners.

[29] Mr. Drinkwater asks me to dismiss the evidence of A.W and M.S. on a number of grounds. He submits that they have colluded to fabricate their evidence after hearing similar allegations in another trial involving Mr. Drinkwater.

[30] In January 2014, Mr. Drinkwater was convicted of sexual assault of another boy after trial by a jury. That conviction is currently under appeal. The allegations in that case were more serious than the allegations in this case. Both A.W. and M.S. attended the trial at Mr. Drinkwater’s request.

[31] In March 2014, Mr. S wrote a strong letter of support in favour of Mr. Drinkwater for sentencing purposes. Mr. S was 18 when he wrote the letter. In the letter, Mr. S spoke glowingly of the role Mr. Drinkwater had played in his own life and stated that it was “impossible to believe” that Mr. Drinkwater was capable of the conduct alleged against him in that matter.

[32] Mr. Drinkwater submits that A.W. and M.S. have fabricated allegations in order to seek an award from the Criminal Injuries Compensation Board.

Analysis

[33] I do not accept the submission that the allegations are the result of a conspiracy to obtain an award from the Criminal Injuries Compensation Board.

[34] Although Mr. S admits that he discussed the allegations of sexual touching with Mr. W in a very general way before the preliminary hearing in this matter, the fact that the allegations of both complainants are similar does not mean they have colluded.

[35] The manner in which the allegations arose belies any suggestion of collusion.

[36] Mr. W was the first to disclose to Mr. S that Mr. Drinkwater had touched him sexually. He did so while he was at Mr. S’s apartment one night in January 2015 and was drunk. Mr. S’s girlfriend was present. Although Mr. W disclosed the touching to Mr. S, Mr. S did not reciprocate and disclosed nothing. Mr. S did not disclose allegations of abuse until a few weeks later when he told his girlfriend.

[37] If this were a question of collusion, it would require a highly sophisticated conspiracy that had been calibrated in many stages. The first stage was to have A.W. disclose, in a drunken state, in front of Mr. S’s girlfriend, sexual touching by Mr. Drinkwater. In stage two, executed a few weeks later, Mr. S would disclose the abuse to his girlfriend. His girlfriend, who is not alleged to be part of the conspiracy, would then prompt Mr. S to disclose the abuse to his mother and then, still later, disclose the abuse to his father. The theory would have us believe that Mr. S knew his father would take him to the police station right away in order to make a complaint. All this because Mr. S and Mr. W anticipated that the defence would allege collusion against them.

[38] That strikes me as a fairly complex conspiracy beyond the inclination of both complainants.

[39] Mr. S testified that he did not even know it was possible to claim for compensation until the defence put that proposition to him during cross-examination. To give weight to the defence theory on this front would also mean that every complainant would be subject to the attack of having fabricated allegations in order to claim monetary compensation.

[40] The defence also attacked the credibility of Mr. W and Mr. S more generally. I reject those submissions.

[41] The defence did make some headway on traditional methods of attacking credibility with respect to Mr. W. By way of example, the defence points out that he disagreed that his memory had faded over time and disagreed with the proposition that he would have a better memory of things that occurred in the very recent past than he would have of things that occurred in the distant past. The defence also pointed to Mr. W’s admitted use of drugs which it submits may have had an impact on his memory. I do not, however, find that Mr. W lacked credibility on the issues essential to this case.

[42] I reach the same conclusion with respect to Mr. S. Mr. S was a conventionally more reliable and credible witness than was Mr. W in the sense that he provided direct candid answers to difficult questions without being in any way argumentative.

[43] The principal point of attack with respect to Mr. S was the fact that he had denied allegations of wrongdoing by Mr. Drinkwater on a number of occasions including when the police interviewed him in grade 10 and that he had provided a strong letter of support in favour of Mr. Drinkwater. Similarly, Mr. W had also denied allegations of wrongdoing when he was interviewed by the police after being found in the same bed with Mr. Drinkwater.

[44] The earlier denials of wrongdoing are not entirely surprising given the way in which the questioning of the complainants arose. Both young men were taken by surprise by police questioning. They were questioned about issues that could be shameful to them, make them feel awkward or be unsure of what proper boundaries were. It may only be later in life that an individual has the experience and confidence to know with certainty that something was wrong. These factors would be exacerbated by the fact that Mr. Drinkwater did have some positive influences in the lives of these two men.

[45] Mr. Drinkwater testified and denied that he had engaged in any sexual touching. I remain troubled by his evidence.

[46] It is uncontroverted that M.S. often fell asleep in Mr. Drinkwater’s bed while watching the television at the foot of the bed. When that happened, one might expect Mr. Drinkwater to have picked M.S. up and carried him into the single bed. He did not do that. Instead, Mr. Drinkwater joined M.S., an unrelated child, in the same bed.

[47] Although I believe the complainants and prefer their evidence over the evidence of Mr. Drinkwater, that is not sufficient to convict Mr. Drinkwater. To convict Mr. Drinkwater I must be persuaded beyond a reasonable doubt of the essential elements of the offences at issue. That standard of proof is not met simply because I prefer the evidence of Crown witnesses to that of defence witnesses: R. v. Hull 2006 26572 (ON CA), [2006] O.J. 3177 at para. 5.

[48] The analytical framework to follow is well known and was established in R. v. W. (D). 1991 93 (SCC), [1991] 1 S.C.R. 742 at para. 28.

[49] First if I believe the evidence of the accused, I must obviously acquit.

[50] Second, if I do not believe the testimony of the accused but am left in reasonable doubt by it, I must acquit.

[51] Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[52] It is this third step that is critical to my analysis in this case.

[53] For me to find Mr. Drinkwater guilty I must be persuaded beyond a reasonable doubt that he committed each element of the offences charged. While being persuaded beyond a reasonable doubt does not require that I be absolutely certain that Mr. Drinkwater committed the offences charged, it requires more than a belief that Mr. Drinkwater probably committed the offences. It requires me to be sure he committed the offences.

[54] In determining whether I am persuaded beyond a reasonable doubt, I cannot be motivated by sympathy for A.W. or M.S. nor can I be motivated by passion based on what I might think about Mr. Drinkwater’s habits. I must review the evidence dispassionately.

[55] A reasonable doubt is one that has a rational basis in the evidence before me.

[56] I turn then to the essential elements of the charges against Mr. Drinkwater.

[57] The first and third counts relate to sexual assault on A.W. and M.S. To convict Mr. Drinkwater of sexual assault, the Crown must establish, beyond a reasonable doubt, that:

(i) Mr. Drinkwater intentionally applied force to A.W. or M.S.;

(ii) A.W. and M.S. did not consent to the force that Mr. Drinkwater applied;

(iii) Mr. Drinkwater knew that A.W. and M.S. did not consent to the force that Mr. Drinkwater applied; and

(iv) The force that Mr. Drinkwater applied took place in circumstances of a sexual nature.

[58] The second and third elements of the events are easy to dispose of. Both A.W. and M.S. were under the age of 16 at the time of the alleged offences and were incapable of consenting to any sexual touching by Mr. Drinkwater. Mr. Drinkwater is therefore deemed to know that the two boys did not consent to any force of a sexual nature.

[59] The first element requires that Mr. Drinkwater intentionally apply force. Both A.W. and M.S. testified that they did not know if Mr. Drinkwater was ever awake during the incidents in which he placed his hand on their genitals. Both gentlemen testified that the touching stopped when they rolled over. There was no evidence that there were further instances of touching on the same night after one of the boys had rolled over. There was no evidence of resistance by Mr. Drinkwater to the boys rolling over. There was also no evidence of any attempt by Mr. Drinkwater to persuade the boys to remain or words of any kind that might allow me to infer an intention to Mr. Drinkwater.

[60] On that record I am left with a reasonable doubt about Mr. Drinkwater’s guilt. While it is unusual to make a habit of sleeping in the same bed as an unrelated child, it is not a crime. It could be that in the course of sleeping, Mr. Drinkwater inadvertently put his hand on the boys’ genitals. That would remove the elements of intention and the sexual nature of the touching, two essential elements of the offence. Even if the movement was not entirely accidental but was motivated by a dream, thoughts or reflexes Mr. Drinkwater had while sleeping, that would also refute the element of intention.

[61] The elements of the offence of sexually touching a person under the age of 14 contrary to section 151 of the Criminal Code are as follows:

(i) that A.W. and M.S. were under 14 years old at the time;

(ii) that Mr. Drinkwater intentionally touched A.W. or M.S.; and

(iii) that the touching was for a sexual purpose.

[62] The first element of the defence is uncontested. Each of A.W. and M.S. were under the age of 14 at the time of the events at issue.

[63] I do, however, have a reasonable doubt about the elements of intention and sexual purpose for the same reasons that I set out in paragraphs 59 and 60 above when discussing the charge of sexual assault.

[64] My doubt with respect to both offences arises rationally out of the evidence I heard. There was a missing link in the chain, namely evidence of Mr. Drinkwater’s consciousness of what he was doing. That missing link is critical to both offences charged.

[65] The inability to establish that Mr. Drinkwater was awake during any of these incidents gives greater importance to the contact that A.W. and M.S. continued to maintain with Mr. Drinkwater after the alleged touching occurred and after they reached age 18.

[66] Taken alone, the continued contact could be seen, as noted above, as evidence of the complainants being taken by surprise by police questioning, feeling shame or awkwardness or being unsure of what proper boundaries were. When coupled with the inability to establish that Mr. Drinkwater was awake during any of the incidents, the complainants’ more contemporaneous denial of wrongdoing adds to the doubts about the case against Mr. Drinkwater.

[67] As a result of those doubts, I am obliged to acquit Mr. Drinkwater of all counts however sympathetic and believable I may find A.W. and M.S. to be.

Koehnen J.

Date: January 15, 2019