Her Majesty the Queen v. F.G., 2020 ONSC 6042

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO. 17-0812-AP

DATE: 20201005

BETWEEN:

Her Majesty the Queen

Respondent

– and –

F.G.

Appellant

Michael Pretsell, for the appellant

Deirdre Bryant, for the respondent

Heard: March 2, 2020

On appeal from the conviction entered on March 21, 2019, by Mr. Justice J.A. Payne, of the Ontario Court of Justice.

RESTRICTION ON PUBLICATION

By court order made under s. 486.4(1) of the Criminal Code, any information that could identify the victim, or a witness, shall not be published in any document, or broadcast or transmitted, in any way.

S.T. Bale J.:

1The appellant was found guilty of one count of sexual interference and one count of sexual assault. The proceedings on the charge of sexual assault were stayed, and a conviction was entered on the charge of sexual interference. The appellant was sentenced to six months in jail, followed by two years of probation. He now appeals from conviction.

Background facts

2The appellant, age 52, lived with his girlfriend and her two daughters, one of them being the thirteen-year-old victim.

3The only witness called at trial was the victim. On consent, two police video statements were entered into evidence, pursuant to s. 715.1 of the Code.

4In the first statement, the victim described waking up early that morning when the appellant came into her room. She said that she sleeps in a t-shirt and underwear. She said that she awoke to the appellant lifting her blanket up and staring at her. She said that beginning about a month earlier, the appellant had started touching her in inappropriate places. She said that the appellant “kind of just pinches my nipples … or flicks them sometimes” and “tries to like pinch the lips of my vagina.” She said that her mother or sister would be present but not in a position to see him do it.

5On cross-examination, the victim acknowledged that the touching would sometimes, but not always, occur during “horseplay” between the two, and that she often initiated the horseplay. She agreed with the suggestion that she did not tell her mother about the touching before the blanket-lifting incident because, at the time, she “thought [the touching] was an accident, as part of horseplay”; but added: “And it would upset her knowing that he had done that.” When asked whether, until that time, she thought the touching to be accidental, she said: “For most of the incidents, yes.” When asked again whether, until the blanket-lifting incident, she thought the touching to be accidental, she said: “For most of the incidents, there were some where the touch, the time of contact felt not accidental.” On re-examination, she clarified that when the touching did not seem accidental, it was because, on those occasions, the contact felt longer than the other times. She also said that because of the blanket-lifting incident: “It just seems how I saw everything, because it was intentional how he came into my room and looked at me so, it just, all of the incidents that I thought were accidental just seemed more intentional than what I originally thought.”

6Just over a month following the first statement, the victim gave a second video statement in which she described incidents where the appellant had asked her to retrieve items from the sleeper cabin in his transport truck. On those occasions, she found pornographic magazines and pamphlets open on his bed. She found them to be disturbing and believed the appellant to have left them there for her to see. However, the trial judge did not consider this evidence in deciding the case, because he was not satisfied that the magazines were left out intentionally for the victim to see. This incident then requires no further comment.

Grounds of appeal

7The appellant argues three grounds of appeal. First, he argues that the trial judge misapprehended the evidence when he found, based upon the victim’s evidence that he was not looking at her some of the times that he touched her, the appellant must have been looking at her at least one of the times that he touched her. Second, he argues that the trial judge used evidence admissible for a limited purpose for an impermissible purpose. Third, he argues that the trial judge erred in finding that the touching amounted to sexual assault and sexual interference.

Analysis

Whether the trial judge misapprehended the evidence.

8The victim’s evidence was that for some of the incidents, she was behind the appellant and that for others, she was in front of him. When she had been behind him, he had reached behind himself and grabbed her. Defence counsel argued that in cases where the victim had been behind the appellant, the touching could have been accidental, and that it was not clear on the evidence what had happened when she had been in front of him, rather than behind.

9The trial judge reasoned as follows:

In cross-examination, [the victim] said the accused could not see where he was grabbing for “most” of the incidents. I find as a fact that “the incidents” is a reference to the accused touching [the victim’s] breasts or vagina. I find as a fact that the accused could not see where he was grabbing for most of the incidents. From this finding of fact, I infer for some of the incidents that the accused could see where he was grabbing, i.e., [the victim’s] breasts or vagina.

There must be at least one incident he was looking at her because “most” does not mean “all”. Based on the version of the evidence most favourable to the defence, I am satisfied beyond a reasonable doubt that the accused, while looking at [the victim] on at least one occasion, either intentionally touched [the victim’s] breast or her vagina.

10The appellant argues that while that inference was available, it was not the only available one and that if there are reasonable inferences other than guilt, the evidence does not arise to proof beyond a reasonable doubt. He argues that it was also available to the trial judge to infer that the appellant was not looking at the victim any of the times that he touched her. I disagree for the following reasons.

11First, this is not a case of circumstantial evidence. The trial judge’s inference involved deductive (not inductive) reasoning. If in each instance the victim was either in front of the appellant or behind him, and if she was only behind him in some instances, it then follows that she was in front of him, in at least one instance.

12Second, when the victim said on cross-examination that for most of the incidents, the appellant could not see where he was grabbing, she was referring to the incidents that had occurred when she was behind the accused, and not all the incidents:

Q. And that when his back was turned to you and he tried to reach behind himself with his hands to grab at you, you’d agreed with me previously, but you’d agree with me that he couldn’t see where he was grabbing, correct?

A. For most of the incidents.

13Third, the victim testified that “sometimes” (i.e. in more than one instance), she had been in front of the appellant. In her first statement, the following exchange occurred:

D/CST HORNE: Okay. So, when you describe that, and you can correct me if I’m wrong, I’m describing him facing you and his back towards them. Is that what you mean or how …

[VICTIM]: Well sometimes I’d be behind him. And he’d stick his arm out and try and grab me.

14At trial, Crown counsel referred the victim to that passage and requested clarification:

Q. So, can you just clarify for us [victim], you say sometimes you’d be, sorry, you’d be behind him, was that what always happened, or did it happen in other ways as well?

A. It’d be whichever way would make it less noticeable to my family.

Q. I see. Are you able, aside from what you described when you would be behind him and he would stick his arm out and try to grab you, are you able to describe other types of positions that you would be in when this happened?

A. Well sometimes I’d be in front of him and he have his back towards my mom or my sister. Other times it’d just be like really quick too.

15The appellant argues that even if some of the incidents had occurred when the victim was in front of him, it was not clear on the evidence what had happened when she had been in front of him, rather than behind him. However, the trial judge found as a fact that when the victim said that the appellant could not see where he was grabbing for most of the incidents, “incidents” was a reference to the appellant touching her breasts or vagina. This finding of fact was amply supported by the evidence. The subject of both the first police interview and the cross-examination at trial was the Crown’s allegation that the appellant had touched the victim’s breasts and vagina. And the focus of the cross-examination was an attempt to cause the victim to admit that when he touched her breasts and vagina, he could not see what he was doing.

Whether the trial judge used otherwise admissible evidence for an impermissible purpose.

16The trial judge found that the appellant was sexually attracted to the victim, “as demonstrated by him staring at her sleeping in her t-shirt and underwear after lifting her blanket”, and that he had taken advantage of the horseplay to intentionally touch the breast or vagina of a thirteen-year-old girl, for his sexual gratification.

17The appellant argues that the evidence relating to the blanket-lifting was admissible only as part of the narrative (i.e. to help explain why the victim changed her mind after initially thinking that the touching had been innocent). He argues that after admitting the evidence for that purpose, the trial judge went on to use the evidence for a prohibited purpose, being evidence of bad character. I disagree, for the following reasons.

18First, the blanket-lifting evidence was admitted on consent without argument as to its use. In her final argument at trial, Crown counsel argued that this evidence was evidence of sexual purpose, an essential element of the offence of sexual interference. In his closing argument, defence counsel did not address the issue or argue that the evidence was inadmissible for other than narrative purposes.

19Second, the blanket-lifting evidence was evidence of the appellant’s sexual attraction to the victim, which was relevant to whether the appellant had a sexual purpose in touching her breasts and vagina. As evidence relevant to an essential element of the offence of sexual interference, the blanket-lifting ought not to have been excluded as evidence of bad character. Otherwise, it could be argued that any evidence of sexual purpose should be excluded as bad character evidence.

20Third, the appellant argued that the evidence was not evidence of the sexual nature of the touching, because the blanket-lifting and touching were not contemporaneous. Again, I disagree. The victim’s evidence was that the touching had occurred on weekends when the appellant was home, up to and including the weekend preceding the blanket-lifting incident.

Whether the trial judge erred in finding that the touching amounted to sexual interference

21For an accused to be found guilty of sexually interfering with a thirteen-year-old, Crown counsel must prove that the accused touched the complainant for a sexual purpose.

22The appellant argues that the trial judge erred in finding that the touching of the victim’s breasts and vagina amounted to sexual interference. I disagree. It was entirely reasonable for the trial judge to find from the blanket-lifting incident that the appellant was sexually attracted to the victim, and to conclude that he had a sexual purpose in touching her breasts and vagina.

Whether the trial judge erred in finding that the touching amounted to sexual assault.

23For an accused to be found guilty of the sexual assault of a thirteen-year-old (subject to exceptions not here relevant), Crown counsel must prove that the accused intentionally applied force to the victim, in circumstances of a sexual nature, so that the sexual integrity of the victim is violated. An intentional touching takes place in circumstances of a sexual nature, if the sexual context of the touching would be apparent to any reasonable person who saw it happen.

24On this issue, the trial judge concluded:

On at least one occasion in the timeframe set out on the information, the accused intentionally touched [the victim’s] breasts or vagina with his hand, over her clothes while he was looking at her.

The intentional touching was sexual in nature, such that the sexual integrity of [the victim] was violated. A reasonable observer viewing all of the circumstances would conclude that the intentional touching was sexual in nature. I have considered all of the circumstances, including the location of the body touched, the relationship between the accused and [the victim], the intentional touching occurred during physical horseplay when at least one other person was in the area, the accused was sexually attracted to [the victim] and he intentionally touched her breast or vagina for his sexual gratification.

25In my view, on the facts of this case, a reasonable observer could come to no other conclusion.

Disposition

26For the reasons given, the appeal is dismissed.

27The appellant shall surrender himself into custody at Central East Correctional Centre, no later than 4:00 p.m., on Wednesday, October 7, 2020. If he fails to do so, a warrant shall issue for his arrest.

“S.T. Bale J.”

Released: October 5, 2020

COURT FILE NO. 17-0812-AP