Superior Court of Justice

COURT FILE NO.: CR18-0013

DATE: 2020-05-05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

T.J.

D. Beaton, for the Crown

J. Weppler, for the Accused

HEARD at Gore Bay: February 10 and 11, 2020

Reasons for Judgment

A.D. kurkE j.

Overview

[1] The accused is charged on a three-Count indictment with sexual interference, invitation to sexual touching and sexual assault of complainant C.M. at Gore Bay between the end of June 2010 and the beginning of September 2011. The female complainant was six or seven years old at the time, and the accused was the father of her friend who lived nearby. The allegation is that on one occasion during the night of a sleepover at the friend’s home, the accused directed the complainant into a bathroom, took down his pants, held the complainant’s hands on his penis, and rubbed his penis with her hands. He told her that she could put her mouth on it if she wanted to, but the complainant pulled away and left the room.

[2] For the Crown, C.M. and her father N.M. testified. The accused, his former spouse Ta.J., and her son D.J. testified for the defence. It was the defence position at trial that the incident as described by the complainant did not take place, for the complainant had never slept over at the accused’s home.

[3] The decision in this case was to have been delivered March 20, 2020, but it was overtaken by the suspension of proceedings in the court as a result of the COVID-19 pandemic. With the expansion of services, it has now become possible to provide these reasons.

Facts

The case for the Crown

[4] C.M. was born in April 2004. She now lives in Amherstburg, Ontario where she moved with her family in 2014. In her family are her father N.M., her mother R.M., C.M. and her brother B.M. (the “M children”). B.M. is three years older than she is. Before the family moved to Amherstburg, they lived in Gore Bay, Ontario. In July or August of 2010, C.M. was six years old, and in July or August of 2011, she was seven.

[5] When she was six or seven and living in Gore Bay, C.M. knew the accused’s family. The accused’s son D.J. was her brother’s age and his close friend. S.J. was the younger son, and a year older than C.M. They lived one street over from C.M., and she and B.M. hung out with D.J. and S.J. (the “J children”) at their house after school and played with Lego blocks or video games on their PS3 gaming console. C.M.’s mother was close with the J children’s mother Ta.J.

[6] C.M. thought that she had slept over at the accused’s home some three or four times in total, the last time when she was seven or eight. Her brother slept over there often. C.M. recalled that she slept over at that family’s cottage with S.J.’s grandmother J.J. “all the time.” R.M. would make arrangements for sleepovers. C.M. agreed that at six or seven she did not want to be far from her mother, and sleepovers were hard without her mother. However, her mother had to go to Toronto for medical treatments, and C.M. was able to stay with J.J.

[7] The accused’s house was fun because they had a pool. When they played, it was usually just the four children who were there.

[8] C.M. described what she called a sleepover at the home of the J children in July or August of 2010 or 2011, before school had started up. She stated that this was her first sleepover there. Unlike other sleepovers, C.M. did not remember her mother telling her about this one. At the home that night were also her brother and the J children, who were playing in D.J.’s room. Also in the home were the accused and his wife Ta.J. The boys’ rooms were upstairs, where there was a bathroom that the J children used. The accused and Ta.J. used a bathroom downstairs.

[9] C.M. had fallen asleep in S.J.’s bedroom upstairs. She thinks that her mother said good night to her while she was falling asleep, but she did not remember her mother telling her about a sleepover. C.M. woke up and was getting hot and wanted to go be with the boys or go home. She went downstairs looking for her mother and called for her. Ta.J. came out of her bedroom downstairs and told C.M., “honey, your mother’s gone home,” and that C.M. should go to bed. C.M. was not bothered, because her brother was there. She went back upstairs and watched the Lion King and was getting hot again. She left the room again to go find the boys, to play and be distracted. She heard them swishing Legos and she heard zombies on the Call of Duty video game.

[10] C.M. came upon the accused who was coming up to the top of the stairs. The accused used a gesture of his hand to guide C.M. into the bathroom, some five or ten steps away. She obeyed the adult, and followed him in. In the bathroom, the accused stood with his back to the toilet “as though he was going to sit down.” He pulled down his pants and pulled out his penis, while telling C.M. to come closer.

[11] The accused took C.M.’s hands in his and put them on his penis. The accused rubbed her hands up and down on his penis and told her, “this is how you do it, just like this.” As described by C.M.: “he was doing it himself, but my hands were touching his penis.” All the while, his hands were guiding C.M.’s hands as to what to do. She described that the accused’s penis “got a little raised,” but not all the way up. It was not “sticking straight out” and was still “kind of soft.”

[12] The complainant testified that she knew this was wrong because “you should not be touching other people’s private parts.” She knew she should get out. The accused told her that she could put her mouth on it if she wanted to. The complainant testified that at that point “my brain clicked; I had to get out of there.” As the accused’s hands loosened on hers, she pulled her hands back and she walked out. The accused told her to come back, with his pants still down and his back towards the toilet. C.M. looked back but kept walking to D.J.’s room. She estimated that she had been in the bathroom three to five minutes.

[13] In D.J.’s room, the complainant played with Legos and the video game Call of Duty with zombies. She did not go back to sleep and stayed up all night playing with her brother and the J children. At sunrise, C.M. walked home with her brother without having breakfast. Afterwards, she continued to attend the accused’s house as though the incident never happened. She hung out with the boys quite a bit. She remembered on one occasion going apple picking with the accused and his sons. C.M. stopped going to the accused’s house when her family moved away when she was nine.

[14] In her new town, friends told her about things that had happened to them, and C.M. described this incident. They encouraged C.M. to tell her parents. Something that happened in a park in Amherstburg led to C.M.’s disclosure about this incident. C.M. was with friends when a boy came up and told her that she was cute and put his hands on top of hers. In answer to a question from the boy, C.M. denied having a boyfriend, at which point the boy showed a knife and said that he would have “cut” any boyfriend. The complainant was frightened and left. Her mother was upset when C.M. told her about this incident, so the complainant decided that she should also tell her what had happened in Gore Bay.

[15] C.M. did not initially remember the accused’s name, but she remembered D.J. and S.J. Eventually they found the accused on Facebook in pictures by himself and with the J children. C.M.’s mother was very upset about this, and the next day brought her to the police station in Amherstburg. To C.M.’s knowledge, nothing happened to the boy in the park.

[16] C.M.’s father N.M. is a miner. His wife R.M. is afflicted with a brain tumour that has caused her to have significant confusion. She did not testify at trial. When they lived in Gore Bay, they lived on the street behind the accused. N.M. was acquainted with the accused; it was their spouses who were very good friends. N.M. recalled that his children spent quite a bit of time at the accused’s home. R.M. made those arrangements.

[17] In his evidence, N.M. recalled that he and R.M. socialized four or five times with the accused and Ta.J. in 2010 and 2011. They would get together at the accused’s home in the summer and socialize over a bonfire. The adults would have two or three drinks, and the children played outside by the bonfire or sometimes in the house.

[18] N.M. testified that on two occasions his daughter C.M. slept over at the accused’s home. His son B.M. slept over there many times. Sleepovers were arranged by R.M. and Ta.J. N.M. specifically recalled being over there on one occasion after a bonfire at 8:00 or 9:00 p.m. when C.M. stayed over. In his statement to police, N.M. stated that he had a hard time remembering any details from back when this could have happened, but he remembered a bonfire. In his evidence he remembered saying goodnight to C.M. He also recalled that he and R.M. were over with the kids two or three times.

[19] At the time they reported the incident to police, N.M. also spoke about C.M. and the boy in the park with the knife. N.M. understood that the police had talked to the individual, but that nothing came of it.

The defence case

[20] The accused testified. He has worked at an auto shop since 2001 doing autobody work and painting. He was in a relationship with Ta.J. from about 1999. Ta.J. had a son D.J. from another relationship whom the accused treated as his own. In 2003, he and Ta.J. had their own son S.J. They moved to the residence in question in Gore Bay in 2008. Upstairs were the boys’ bedrooms and a bathroom; the accused normally used the downstairs bathroom.

[21] B.M. and D.J. were best friends; B.M. came over to the house almost every day. The two played video games and rode bikes. C.M. came over but not as often as B.M. She mostly played outside or played video games with the boys. B.M. slept over as often as every weekend. Sleepovers were arranged by Ta.J. and R.M. The accused confirmed that both his boys had televisions in their rooms, and game consoles. Call of Duty was a favourite game of theirs at that time.

[22] Ta.J. and R.M. were very close friends from about 2009. The accused recalls the couples socializing some two or three times in total. Difficulties in the friendship arose when the accused and R.M. became romantically involved. Ta.J. confronted the accused, who admitted the relationship in the summer of 2010 or 2011. There were no more bonfires after that. R.M. agreed not to socialize with the accused; in exchange, Ta.J. did not tell N.M. about the accused’s relationship with R.M.

[23] The accused denied ever inviting C.M. into the bathroom upstairs and stated that he was never alone with her in that bathroom. In fact, in cross-examination, the accused denied ever being alone with C.M. He denied ever doing anything sexual to C.M. In fact, he never went upstairs to that bathroom when the kids were there; he only used the bathroom on the main floor. He confirmed that C.M. did have sleepovers at J.J.’s home when her parents had to go to Toronto for R.M.’s treatments.

[24] The accused testified to bonfires with N.M. and R.M. The bonfires were usually Friday or Saturday night, and could last until 9:00 to 11:00 p.m. It was usual to have alcohol at the bonfires. The kids would move from outside to inside, to play video games, while the parents socialized around the bonfire. C.M. would go also, for video games and Legos.

[25] The accused’s evidence shifted as it progressed. When first asked about bonfires attended by the complainant’s parents, the accused answered that these occurred on two or three occasions. When next asked, in cross-examination, that number went down to a “couple of times,” because he did not get along well with N.M. That number then went down again, to once or twice. I had the sense that, had he been asked again, the number would be smaller still.

[26] The accused testified that while B.M. had sleepovers at their home, C.M. never spent the whole night at their house, although she was always invited to stay. C.M. only wanted to go home with her mother. In fact, she was only ever over when R.M. was there.

[27] Ta.J. testified. She currently lives in Hanmer, Ontario and is employed as a PSW. She had a relationship with the accused that ended in 2012, when she left him. Her older son is D.J., who is not the accused’s biological son, though he treated him as his own. S.J. is the accused’s son. Ta.J. described the accused as a very involved father.

[28] Ta.J. and the accused moved to the Gore Bay home in 2008. Her children and R.M.’s children were similar in age and lived close. B.M. and D.J. are both 18 now and were best friends. The boys played hockey together. R.M. was her friend since 2008. Ta.J. had had another friend with brain cancer, and Ta.J. admired and helped R.M. N.M. would come over when R.M. was there. Ta.J. made arrangements for the J children, and R.M. for the M children.

[29] Ta.J. described her house in Gore Bay as the neighbourhood playground. Every child on the block came over and played in the backyard. They had a pool, swings, and a trampoline. Ta.J. supervised the children.

[30] Ta.J. testified that C.M. only came over if her mother came over, and she would swim and play with the other kids. B.M. slept over all the time. While he and D.J. were playing, a decision would be made that he would sleep over. Not so C.M. She never slept over or spent a whole night there. C.M. was very close to her mother and father. She was a “homebody.” If her parents were not there, C.M. did not want to stay. C.M. never came downstairs at Ta.J.’s home in the middle of the night asking for her mother.

[31] The accused and Ta.J. socialized with R.M., N.M. and the M children fewer than five times at bonfires. She found out about the accused’s relationship with R.M. in August or September 2010 before school started. She cut off contact with R.M. and N.M. except for the children. There were no more bonfires. B.M. and D.J. remained close.

[32] Significant differences developed between Ta.J.’s evidence at trial and what she had said in her statement to police in October 2017:

a. In contrast to the other witnesses at trial, Ta.J. claimed that the bonfires were community affairs, and lots of people would come over. It was never just the two families.

Ta.J. never mentioned to police the presence of so many other people at the bonfires. When she was asked about this change, Ta.J. acknowledged, “I guess I could have mentioned other adults at the house.”

b. In her trial evidence, Ta.J. insisted that everyone stayed outside until the bonfire was over, at which point people left. The children did not go inside. But if the children went inside, they only did so to get popcorn or something quick. It was rare for the children to go into the house, and they did not watch movies in there.

To police, Ta.J. said that the children would go inside to watch a movie, and she even described D.J. coming out to ask when the adults were coming in. When asked if a child could have been alone with the accused, Ta.J. answered that when they were inside it was she alone who dealt with the children and set them up with a movie.

When confronted about these differences, Ta.J. explained that she was speaking only of her own children. She then denied that children were ever alone in the house. If there were children in the home it was her children and their male friends, like B.M.

c. In her trial evidence, Ta.J. claimed that she rarely ever consumed alcohol at bonfires if there were children around, because she was busy with the kids. However, to police she described having three to five beers.

[33] D.J. testified. He described the accused as his father, and that he was “a very good dad.” He now lives in Sudbury with Ta.J. and his younger brother S.J. He just recently completed Grade 12 and will attend college in Sudbury in September in welding and fabrication. He currently works to make money for school.

[34] D.J. acknowledged remembering “parts of” his time in Gore Bay. B.M. was his best friend. He saw him almost every day after school. As for C.M., she only came over when both her mother and father came over. B.M. and D.J. slept over often at each other’s houses, though B.M. was more often at his.

[35] In cross-examination, D.J. agreed that he had video games back then, and that Call of Duty was a favourite in 2010 and 2011. He agreed that it was not unusual for C.M. to come over and play with Legos and video games. He confirmed that there were bonfires with the two families. The kids would start by playing outside and would then move indoors to watch movies and play video games upstairs in the boys’ rooms. He knew the adults were drinking outside.

[36] In his evidence in chief, D.J. denied that C.M. ever stayed over all night and was in his room. In cross-examination, he agreed that at some point in the evening decisions were made about what would happen with the kids. When asked about C.M., D.J. twice stated that C.M. “usually went home with her mom.” When it was pointed out to him that he had used the word “usually,” D.J. answered, “she went home with her mom.”

Law

Burden of proof

[37] The accused started this trial presumed to be innocent of the charges he is facing. The Crown has the burden of displacing that presumption with proof beyond a reasonable doubt that the accused committed the offences with which he is charged: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 27.

Credibility and reliability

[38] Important in this case are issues of witness credibility and reliability. The events at issue are from about a decade ago, and apart from the complainant and accused, witnesses are or were in familial relationships with complainant and accused. In addition, the complainant, though now firmly teenaged, was at the time of events a child of six or seven years.

[39] In R. v. M. (A.), 2014 ONCA 769, Watt, J.A. reviewed applicable principles for assessing the credibility of witnesses. I excerpt the following for consideration in the circumstances of this case:

9 … [E]very witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding and ability to communicate: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 134.

10 … [N]o inflexible rules mandate when a witness' evidence should be evaluated according to "adult" or "child" standards. Indeed, in its provisions regarding testimonial capacity, the Canada Evidence Act, R.S.C., 1985, c. C-5 eschews any reference to "adult" or "child", preferring the terms "14 years or older" and "under 14 years of age". An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children's evidence: W. (R.), at p. 134.

11 … [D]espite this flexibility, there are some guiding principles. Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: W. (R.), at p. 134. See, also, R. v. Kendall, 1962 CanLII 7 (SCC), [1962] S.C.R. 469.

12 …[O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G.(M.)(1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354[;] leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

13 Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G.(M.), at p. 354.

[40] Reliability is a separate issue from credibility. As noted by Watt, J.A. in R. v. C.(H.), 2009 ONCA 56, credibility focuses on a witness’s veracity, while reliability has to do with the witness’s accuracy. Accuracy involves the ability to observe, recall and recount events that are in issue. So, at para. 41: “Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.”

[41] It is important in cases such as this to avoid stereotypical reasoning in making determinations of credibility and reliability. Victims of abuse will behave idiosyncratically to abuse, and often counterintuitively, and so, for example, the law does not require a victim of sexual assault to avoid her molester in order for a court to find her credible: R. v. A.R.J.D., 2017 ABCA 237, at para. 58; aff’d 2018 SCC 6, at para. 2.

The rule in W.(D.)

[42] In the circumstances of this case, the accused, Ta.J and D.J. have provided evidence that is exculpatory. Accordingly, in assessing the evidence, I have instructed myself in accordance with the direction of the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, in which the Court offered the following guidance on how to approach “credibility contests” (at 757-58):

In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. [emphasis in original, references omitted]

… A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

Analysis

[43] I found the complainant’s evidence to be very compelling.

[44] Her narrative about the incident was clear, concise, and yet filled with telling details. She graphically described what appears to have been the accused’s partially aroused state during the incident using simple, understandable words. She painted a vivid account of the accused’s words and conduct before, during, and after the incident. She described her thought processes and motivations from action to action in a way that added fibre to the narrative of her movements about the home. Her first “all-nighter” appears to have been generated by an inability to sleep because of the heat, a realistic detail that caught in her memory. While the complainant did not recall her mother telling her in advance about the sleepover, she did recall her mother saying goodnight to her.

[45] The account of at least one sleepover was corroborated to some small degree by the evidence of N.M., though his account to police offered little more than his recollection of the fact of a “bonfire” and one sleepover. While N.M.’s memory of saying goodnight to his daughter is a useful detail, C.M. recalls a goodnight only from her mother, and N.M. did not mention the “goodnight” to police. He remained firm that C.M. had slept over at the accused’s house, which is important in the circumstances of this case.

[46] A significant aspect of the complainant’s evidence was her description of spending many nights alone at J.J.’s home, and that J.J. watched her when her parents had to go away for her mother’s treatment. While the complainant may have otherwise overestimated the number of times that she slept over at the accused’s home, that claim is tangential to the case before this court and can easily be understood as the teenaged complainant misremembering unimportant matters from when she was six or seven years old. In any event, the complainant was obviously capable of spending time away from her mother and father as a child, even if that was not her preference.

[47] Another significant aspect of C.M.’s evidence is her recollection of playing many times at the accused’s home with her brother and S.J. I did not get the sense from the evidence of the complainant that she only attended at the accused’s house when her mother was present. Indeed, she testified that on the night at issue, she was not distressed by her mother’s absence, as her brother was present. Her brother was present that night and many other occasions when she played with the J children. The evidence of D.J. in cross-examination confirms this understanding of C.M.’s frequent attendances at his home, as he has her there regularly playing with Legos and video games.

[48] I reject the denials of the accused. His evidence appeared directed towards convincing the court that he never had an opportunity to commit the offences:

a. In a house with two bathrooms I do not accept the accused’s claim that he used the upstairs bathroom as infrequently as he claimed. His object in so testifying was to keep himself far away from the location of the offence.

b. Although the accused acknowledged that there were bonfires attended by the complainant and her family, he reduced their number during his evidence, in an apparent attempt to reduce the opportunity of a C.M. sleepover afterwards.

c. He portrayed C.M. as always wanting to go home with her mother, but the accused knew that C.M. was sometimes babysat by J.J. in her mother’s absence. In his evidence he sought to portray a preference as a dependence.

d. The accused’s evidence moved from never being alone with C.M. in the upstairs bathroom to never being alone with C.M. at all. Why was he afraid to be alone with this child, the friend of his own child?

[49] The evidence of Ta.J. is itself incredible and unreliable. I reject the evidence of Ta.J. denying a sleepover at her home by C.M., and I reject her assertion that C.M. did not come downstairs in the night looking for her mother. Ta.J. also attempted to portray the allegation as impossible due to general circumstances, though her manner of doing so conflicted at times with the accused’s evidence or D.J.’s evidence:

a. Like the accused, Ta.J. attempted to portray C.M. as a “homebody” who would not willingly stay overnight at the accused’s home. Just as with the accused, I reject this suggestion as self-serving, and belied by the evidence about J.J.

b. Unlike anyone else’s account, Ta.J. populated the bonfires with neighbouring families. In my view, this was done in order to make it appear less likely that the accused could have been alone with C.M. unobserved. She did not mention such crowds to the police who took a statement from her, and no other witness testified to that fact either.

c. Ta.J. implausibly had the children remain outside throughout the bonfire, though in her statement to police, with greater candour, she acknowledged what common-sense dictates, that the children shifted inside at some point to play games and watch movies. And the accused and D.J. contradict Ta.J. completely on this point.

d. Ta.J. sought to leave the impression that when a bonfire was over everyone dispersed, each apparently to their own home. Again, this appears as a concession that there were bonfires, but also an attempt to deny the possibility of a C.M. sleepover afterwards.

e. Concerning alcohol consumption at bonfires, Ta.J. altered her evidence from what she had told police. Instead of three to five beers at a bonfire, she testified that she could hardly drink anything, as attending to the children demanded too much of her time. I find that this change was occasioned at least in part by a desire on Ta.J.’s part to appear to have been so involved in childcare that she would know the children remained outside at bonfires, a proposition that I reject.

[50] The most consistent aspect of the evidence of the accused and Ta.J. is their description of the accused’s liaison with C.M.’s mother. I accept that this would have ended the socializing that went on between the families by the end of the summer 2010, but I also see nothing stemming from that fact that tells against the allegation, as the evidence of C.M. and the dates on the counts in the indictment include the summer of 2010.

[51] As to D.J., his partisanship is also apparent. When he did not recognize facts as potentially incriminating of the accused, whom he continues to love as a parent, he agreed with them. Thus, there is before the court his candid account in cross-examination of C.M.’s presence with her brother and his own brother, playing happily with Lego blocks and the children’s game console. However, led on by the ease of giving this truthful account, D.J. neglected originally to eliminate the possibility in his evidence of C.M. spending a night at his home, and instead was truthful. Hence the telltale “usually” that slipped into his answers twice before he was called out on it and then claimed that C.M. invariably went home with her mother. I reject that claim.

[52] In sum, the defence evidence in this case, either of individual witnesses or in its totality, in the context of all the evidence in the case, does not leave me with a reasonable doubt.

[53] As to the third branch of the W.(D.) test, the accused argues that two additional factors detract from the Crown’s case. The first is the decision by the police in Amherstburg to take no action against the person in the park who C.M. claimed had touched her and pulled out a knife in her presence. Second is the decision by the Crown not to call B.M., C.M.’s brother, as a witness, though he could presumably say whether C.M. spent the night at the J children’s home, as she claimed.

[54] I have no way of knowing what guided the decisions of the Amherstburg police, as to why they did what they did. Certainly, the police decision must be irrelevant to my own, is collateral to this case, and calls for speculation in any event. As to the evidence of B.M., whatever it might have been had the Crown or accused called him as a witness, in the circumstances of this case it is not required, and its absence does not raise a doubt.

[55] C.M.’s evidence, corroborated in some respects by the evidence of D.J., and in a minor way by the evidence of N.M., satisfies me beyond a reasonable doubt that within the span of time alleged, and at Gore Bay, Ontario, the accused on one occasion late at night brought C.M. into the upstairs bathroom in his home. He took her hands in his and placed them on his penis. He used C.M.’s hands to rub his penis, which became aroused. This went on for a short time but ended when the accused told C.M. that she could put her mouth on his penis. At that point, C.M. pulled away and left the room.

Conclusion

[56] Accordingly, I find that:

a. the accused did for a sexual purpose touch C.M., who was a person under the age of 16 years, with his penis, thereby committing the offence contrary to s. 151 of the Criminal Code. The sexual purpose is apparent from the fact that the accused used C.M.’s hands to rub his penis;

b. the accused did for a sexual purpose invite C.M., a person under the age of 16 years, to touch his penis with her hands, by taking her hands in his and placing them on his penis, thereby committing the offence contrary to s. 152 of the Criminal Code;

c. the accused did commit a sexual assault on C.M. by placing her hands on his penis and using her hands to pleasure himself. She did not consent, but in any event was unable to consent, given her young age.

[57] There will be findings of guilt to all three charges on the indictment.

A.D. KURKE J.

Released: May 5, 2020

COURT FILE NO.: CR18-0013

DATE: 2020-05-05

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

T.J.

Reasons for Judgment

A.D. KURKE J.

Released: May 5, 2020