COURT FILE NO.: 166/19 DATE: 2021/05/10
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – LAWRENCE ALLEN THOMPSON Defendant
COUNSEL: K. Mildred, for the Crown L. Afolabi, for the Defendant
HEARD: February 22-26, 2021
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, any information that could identify the person described in these reasons as the complainant shall not be published in any document, or broadcasted or transmitted in any way. Every person who contravenes the order is guilty of an offence punishable on summary conviction.
MITCHELL J. (ORALLY VIA VIDEO-CONFERENCE)
Introduction
[1] The accused, Lawrence Thompson, age 68, is charged with the following offences:
i. touching for a sexual purpose B.S., a person under the age of 16, with a part of his body, contrary to section 151 of the Criminal Code of Canada (the “Code”);
ii. sexual assault of B.S., contrary to section 271 of the Code;
iii. kidnapping B.S. contrary to section 279(1)(a) of the Code; and
iv. abducting, B.S. a person under the age of 14, contrary to section 281 of the Code.
[2] Due to restrictions on in-person attendance arising from the Covid-19 pandemic, this trial was conducted in a hybrid manner. Some participants, including Crown counsel and five of the eight witnesses, as well as members of the media and other observers, participated remotely via a video-audio link and other participants, including the defendant, his counsel and the trial judge as well as a few observers, attended in-person in the courtroom.
Overview
[3] By way of overview, these charges arise from an incident which took place the morning of May 13, 2018 in the City of London. The then four-year-old complainant, B.S., was outside playing alone near the 3-way intersection of Barker Street and Melsandra Avenue when the accused picked her up and placed her in his vehicle and drove her a short distance before dropping her off across the street from her house. The entire incident lasted less than two minutes.
[4] The incident occurred a short distance from the complainant’s home where she resided with her parents, younger brother and older sister. The accused was not known to the complainant and had no connection with her family.
[5] The incident was witnessed by Donald and Eleanor Taves as they were stopped at the intersection behind the accused’s motor vehicle. The incident was also captured by a dashboard camera mounted on the dashboard of a vehicle travelling through the intersection at the time of the incident.
[6] Immediately after being dropped off by the accused, the complainant reported the incident to her parents. During questioning by police later that same day, the complainant reported that while she was in the vehicle with the accused, he had pulled her face down onto his lap and pulled down her pants and underwear.
[7] Based on the description of the vehicle provided by witnesses and observed in the surveillance video and the dash-cam footage, the following day the motor vehicle used in the incident was located at the accused’s home where he resided with his spouse and the accused was arrested and charged with these offences.
General Principles
[8] Throughout this trial, the Crown bore the burden of proving Mr. Thompson’s guilt beyond a reasonable doubt. The burden of proof applies to each element of the 4 offences with which Mr. Thompson has been charged.
[9] In support of its case, the Crown called eight witnesses including:
(a) the complainant who testified via a remote video feed accompanied by a support person and a support service dog;
(b) the complainant’s father, N.S.;
(c) Donald and Eleanor Taves, eyewitnesses to the incident;
(d) Jennifer Jordan, another eyewitness to the incident whose “dash-cam” captured the incident on video; and
(e) Detective Constables Eric Potasse, Lori Anne Kirk, and Trevor Pool.
[10] Mr. Thompson is presumed innocent. He was not obligated to introduce evidence of any kind in defence of these charges. He was not required to testify nor required to prove anything. Mr. Thompson elected not to testify at trial nor call any other evidence in defence of these charges. That was his choice.
[11] I am reminded that, while I need not be certain the defendant is guilty, more than probable guilt is required. I must be sure of his guilt.
The Evidence
(a) Agreed Facts
[12] Pursuant to section 655 of the Code, the parties filed a statement of admissions which was made an exhibit at the trial. Of these admitted facts, the most salient are these:
- In May 2018, the complainant, B.S., was four years of age. At the time of trial, the complainant was seven years of age.
- At the time of the incident, Mr. Thompson was 65 years of age. At the time of trial, Mr. Thompson was 68 years of age.
- At the time of the incident, Mr. Thompson resided with his spouse, Pamela Thompson, at 924 Princess Avenue in London, Ontario.
- Pamela Thompson is the registered owner of a tan 2005 Chevrolet Impala with license plate AMVS515.
- On Sunday, May 13, 2018, at approximately 9:15 a.m., Mr. Thompson was driving his Chevrolet Impala in the area of Melsandra Avenue and Barker Street in the City of London. B.S. was standing on the southeast corner of the intersection of Barker Street and Melsandra Avenue. Lawrence Thompson stopped his vehicle north on Barker Street and south of Melsandra Avenue and placed it in park. Lawrence Thompson exited his vehicle, picked up B.S. and placed her into his vehicle.
(b) The Complainant
[13] Turning now to the evidence of the witnesses. Shortly after the incident, B.S. was interviewed by Detective Constable Kenneth Steeves. The interview lasted approximately 45 minutes and was video-taped. The Crown applied pursuant to section 715.1 of the Code for an order that the audio and video-recorded statement of B.S. be admitted into evidence at trial. The application was not opposed by the defendant.
[14] After satisfying myself that the complainant adopted the contents of the audio-video recording taken May 13, 2018 (subject to a number of corrections to her earlier evidence made during her trial testimony), and that the other preconditions to admissibility under section 715.1 of the Code had been met, I admitted the video-recorded statement as forming part of the evidence of B.S. at trial.
[15] To facilitate her trial testimony, it was agreed that B.S. would testify via closed circuit television with a support person and support dog present.
A. Video-Taped Statement to Police
[16] During her video-taped statement taken May 13, 2018, B.S. explained to Constable Steeves that after bike riding with her sister earlier that morning she put her bike in the garage and ventured out on her own to look for ladybugs around the corner from her house. She described how a man with a full beard, no moustache and a “crinkly face”, picked her up “baby style” and put her in the front seat of his car. She said she wanted him to go but he picked her up anyway and this made her feel “upset and angry”. She remembers he called her “Melissa”. B.S. told Constable Steeves the man was looking for his daughter and said to her “I’m going to take you home”. She said that he forgot to put her seatbelt on.
[17] B.S. told Constable Steeves that the man had a picture of a young girl in a pink dress hanging from a nail in his car. She said the girl’s name was Melissa. She said the man gave her green mint gum that he kept in the front pocket of his car and gave her blue Play-Doh.
[18] When asked by Constable Steeves whether he drove her anywhere, B.S. responded that he drove to his house and then she ran home at night.
[19] After describing the gum in the front pocket and the picture of “Melissa” and where it was located inside the vehicle, B.S. said to Constable Steeves: “this one is going to be a secret”. She then moved closer to Constable Steeves and said to him in a quiet tone: “he pulled down my pants”. B.S. said the car was moving when the man pulled down her pants. She then added that he also pulled down her underwear.
[20] B.S. told Constable Steeves that nothing else happened and that the man then pulled her pants back up. Later in the interview, B.S. corrected her evidence and said that she, not the man, pulled up her pants.
[21] B.S. said the accused pulled her down onto his lap before pulling down her pants and underwear. She used the word “kidnap” to describe the incident and said she learned the word from a movie she had watched, and not from her parents.
[22] She said she asked the man if she could get out of his car and then kicked, hit, punched him in the eye and slapped him on his face claiming, “that’s the safety that I did”.
[23] She further described how the man squished a tulip she had picked for her mom when he pulled her onto his lap. B.S. then told Constable Steeves that she told the accused she was going to “take out his eyeballs, cut them up and have him for dinner” although immediately stated that she didn’t say those things rather it was “just for pretend”.
[24] B.S. reported that the man stopped at his house and she opened the door of the vehicle, got out of the car and ran home.
B. Trial Testimony
[25] Before testifying at trial, B.S. promised to tell the truth. She testified that she had watched her video-taped statement twice before the trial. The video-taped statement was played in its entirety at the outset of the Crown’s case. After watching the video-taped statement, B.S. admitted in response to Crown questioning, that although she was doing her best to tell the truth when she was speaking with Constable Steeves, certain things she told him were not correct. Without prompting, B.S. admitted that:
i. she did not have a cat named “Sky”;
ii. the man did not have a golden car or golden shirt;
iii. it was not night when she went home;
iv. she did not go to the man’s house; rather, she was dropped off at her neighbour’s house and ran home; and
v. she did not punch or kick the accused.
[26] B.S. testified that she neither wanted to go in the accused’s car nor asked to go in his car.
[27] She remembers telling the accused her name but does not recall him saying anything about “Melissa”. She said she was angry when he picked her up because she wanted to go home. B.S. testified that she “felt scared” when the accused put her in his car.
[28] B.S. testified that, once in his car, the accused asked her where she lived and she remembers pointing to her house; however, the accused stopped instead in the driveway of her neighbour’s house. She said the accused opened the door to let her out.
[29] B.S. testified that in addition to pulling down her pants and underwear, the accused slapped her bum once. When asked by Crown counsel whether she remembers the accused pulling down her pants and underwear and slapping her bum, B.S. said she did. B.S. remembers feeling hurt and sad when the accused slapped her bum.
[30] During cross-examination, B.S. described how the accused picked her up and put her over his shoulder. B.S. denied that before picking her up, the accused asked her if she was lost. She testified that she told the accused her name because she thought she knew him.
[31] When shown a picture of Valleyview church, B.S. was unable to identify the church although does remember seeing the building on her way to school. She has no recollection of being in the church parking lot with the accused in his vehicle.
[32] During cross-examination, B.S. admitted that other things she told Constable Steeves were not correct, including that:
i. the accused did not give her gum or candy;
ii. she did not see a deer while in the accused’s car; and
iii. there was no blue Play-Doh in the car.
[33] During cross-examination when asked whether her testimony that the accused pulled down her pants actually happened or was a mistake, B.S. responded: “Actually happened. I remember it.” Although, B.S. admitted during cross-examination that she was unsure whether the accused slapped her bum.
[34] During re-examination by Crown counsel, B.S. confirmed that she was not sure the accused slapped her bum and was also unsure whether the accused pulled down her underwear. However, B.S. stated she was “100%” sure the accused pulled down her pants.
(c) Complainant’s Father – N.S.
[35] The complainant’s father, N.S., testified at trial with respect to the events which transpired immediately following the incident. N.S. recalls the day being a typical Sunday. It was Mother’s Day and B.S. was bike riding with her sister. N.S. recalls B.S. coming in the house and hearing her tell her mother that a man had taken her. He asked B.S. what had happened but she said she did not want to talk about it. He observed that B.S. was crying and trembling. He described her as visibly upset.
[36] N.S. got in his car and drove the short distance to the intersection in an attempt to find the man who had taken B.S. He was unsuccessful. He returned home and called 911 to report the incident.
[37] N.S. testified that B.S. told him only that she had been picked up by a man at the stop sign at the corner. N.S. denies suggesting to B.S. that she was “kidnapped” when discussing the incident with her. N.S. further denies suggesting to B.S. that the accused pulled down her pants and underwear or slapped her bum.
(d) Donald and Eleanor Taves
[38] Donald and Eleanor Taves are members of Valleyview Mennonite Church located on the north west corner of Melsandra Avenue and Norfolk Drive in London. On May 13, 2018 the Taves were driving their usual route to church at approximately 9:15 a.m. As they approached the three-way intersection of Barker Street and Melsandra Avenue they observed a vehicle ahead of them stopped at the intersection with its driver’s side door wide open. Mr. Taves described the vehicle as an older-model Chevrolet Impala.
[39] Mr. Taves stopped his vehicle approximately 1 to 2 car lengths behind the Impala. He observed a man in his 60’s with grey hair, glasses and a beard in front of the driver’s side door bent over and attempting to put a child into the front passenger seat through the driver’s side door.
[40] Mr. Taves was unable to observe the child’s face but based on the child’s footwear and lower legs, he believed the child was female. He estimated the child as between 4 and 7 years of age. He described the individual’s movements as brusque and testified that the man was using significant exertion to manoeuvre the child into the vehicle. The manner in which the individual was placing the child in the vehicle caused Mr. Taves concern.
[41] Ms. Taves had a different vantage point from the front passenger seat. She observed the accused when he was at the right rear passenger side of the Impala. She observed the accused cradling a blond-haired, female child approximately four years of age. While she could observe the driver’s side door being open as their vehicle approached, she was unable to observe the accused placing B.S. into his vehicle once their vehicle was stopped.
[42] After placing the child in the vehicle, the accused turned onto and travelled eastbound on Melsandra Avenue. Being the route to their church, the Taves similarly turned onto Melsandra Avenue following behind the Impala. After turning onto Melsandra Avenue, the Taves observed the Impala being driven erratically. Mr. Taves testified that the vehicle spent more time in the left-hand lane than the right-hand lane. The vehicle was not speeding; however, was swerving back and forth suggesting to Mr. Taves that either there was activity in the vehicle hampering the driver’s ability to drive, or the driver was intoxicated. Mr. Taves recalls there was nothing he observed outside the vehicle to explain the accused’s erratic driving.
[43] While following the Impala, the Taves were unable to observe the individuals in the vehicle. As the Taves followed behind the Impala en route to Valleyview Church, the vehicle turned left onto Valleyview Drive and then immediately turned right into the church parking lot. The Taves followed the Impala into the lot.
[44] As the Taves parked their vehicle, the Impala exited the parking lot without stopping using the Melsandra Street exit and turned westbound on Melsandra Avenue travelling in the direction from which it had come. The Taves recall that the vehicle was no longer being driven erratically. Video surveillance of the Valleyview church parking lot recorded on May 13, 2018 captured the Impala exiting the parking lot onto Melsandra Avenue and was consistent with the Taves’ evidence.
[45] Fearing they had witnessed a child abduction, the Taves immediately contacted police and reported the incident. The Taves provided police with a description of the accused and the vehicle.
[46] The Taves estimated the distance between the three-way intersection and the church parking lot to be three blocks. Mr. Taves estimated it would have taken approximately 40 seconds to travel the three blocks at the posted speed limit.
(e) Jennifer Jordan
[47] A camera mounted on the dashboard of a vehicle driven by Jennifer Jordan the morning of May 13, 2018 captured the incident. Ms. Jordan resides in the neighbourhood where the incident took place. She was travelling southbound on Barker Street through its intersection with Melsandra Avenue at approximately 9:20 a.m. on May 13, 2018. Video footage taken from her dash-cam depicts the Impala stopped at a slight angle at the southeast corner of the intersection with its driver’s side door open. The Taves’ vehicle can be seen stopped behind the Impala.
[48] Ms. Jordan testified that she recalled seeing a man standing at the open driver’s side door. She observed him getting into the vehicle and closing the door. She did not see B.S. nor did she see the Impala arrive at, or drive away from, the intersection.
(f) Detective Constable Eric Potasse
[49] Based on information obtained at a police briefing and provided by the eyewitnesses, Detective Constables Eric Potasse and Lori Ann Kirk attended at Mr. Thompson’s residence on May 14, 2018. Constable Potasse was tasked with investigating and ruling out the older model Impala owned by Mr. Thompson’s spouse as being the vehicle involved in the incident.
[50] At approximately 6:10 p.m. on May 14, 2018, Mr. Thompson returned to his residence and was approached by Constables Potasse and Kirk who had observed an Impala motor vehicle parked at the rear of the property. The accused provided his verbal consent to Constables Potasse and Kirk to inspect the Impala.
[51] Constable Potasse observed that the vehicle was still plated and was parked along the east side of the fence with the rear of the vehicle facing north. He observed two pronounced dents on the wheel well on the passenger side, a sticker on the trunk lid and that the headlights were round – these details matched the description he had been provided by witnesses and observed in the video surveillance. Being satisfied that the Impala motor vehicle was involved in the incident, Mr. Thompson was arrested. Upon his arrest, Constable Potasse testified that the defendant stated, “you are mistaken, you got the wrong guy”.
[52] Constable Potasse then spoke with the defendant’s spouse and handed her the items the accused had in his possession at the time of his arrest. While Detective Potasse was speaking with Ms. Thompson, the defendant stated to his spouse that he had been working on the Impala for the past three days. Ms. Thompson did not confirm this information.
(g) Detective Constable Lori Ann Kirk
[53] Detective constable Lori Ann Kirk became involved in the investigation on May 13, 2018. She attended with the complainant and her mother to document any injuries the complainant may have suffered in the incident. Constable Kirk noted three finger pressure red marks on the complainant’s right upper calf. The marks appeared fresh and red in colour. Photos of the injuries described by Constable Kirk were filed as exhibits at trial.
[54] Constable Kirk was involved in the investigation again on May 14, 2018 when she accompanied Constable Potasse to Mr. Thompson’s residence. Constable Kirk also observed the two dents on the passenger side wheel-well and also that the front right tire of the Impala had been removed and was resting on a jack. She, too, was satisfied that the Impala motor vehicle located on the defendant’s property was involved in the incident.
[55] Constable Kirk placed handcuffs on the accused and read him his rights and primary caution. She testified that while she was standing with the accused following his arrest, Ms. Thompson asked the accused “what was going on?” The accused responded: “They are arresting me, something about an investigation, I don’t know.” The accused then said in the direction of his spouse: “Car’s been like this for a while, right?” Constable Kirk noted that Ms. Thompson did not respond.
[56] Both Constables Kirk and Potasse testified that the accused was cooperative throughout their interaction with him on May 14, 2018. Both stated that Mr. Thompson had no difficulty communicating with them nor was there any concern that he did not understand the nature of their investigation.
(h) Police Constable Trevor Pool
[57] Detective Constable Trevor Pool was the primary investigating officer. Photographs were introduced into evidence through Constable Pool including photographs of Mr. Thompson’s home on Princess Avenue, the laneway running alongside his house, the rear of the property which showed a barn-style garage and the Impala motor vehicle.
[58] Constable Pool observed the Impala located at the rear of the property with the front wheel removed. Constable Pool testified that two hubcaps having the seven-spoke configuration observed in the surveillance video were found in the trunk of the vehicle.
[59] Constable Pool introduced video surveillance taken from a residence located on Barker Street the morning of May 13, 2018. This surveillance shows the Impala driving northbound on Barker Street. Approximately five minutes later, the Impala is observed travelling at a much faster rate of speed southbound on Barker Street as it exited the neighbourhood.
Analysis
[60] Before analysing the evidence relative to each of the offences with which Mr. Thompson has been charged, I will first consider and assess the reliability and credibility of the witness testimony.
[61] When assessing the evidence of witnesses, a court must consider both credibility and reliability. The difference between the two concepts was recently considered in R. v. Nyznik, 2017 ONSC 4392 at para. 15. The court wrote:
…Reliability has to do with the accuracy of a witness’ evidence – whether she has a good memory; whether she is able to recount the details of the event; and whether she is an accurate historian. Credibility has to do with whether the witness is telling the truth. A witness who is not telling the truth is by definition not providing reliable evidence. However, the reverse is not the case. Sometimes an honest witness will be trying her best to tell the truth and will fervently believe the truth of what she is relating, but nevertheless be mistaken in her recollection. Such witnesses will appear to be telling the truth and will be convinced they are right, but may still be proven wrong by incontrovertible extrinsic evidence. Although honest, their evidence is not reliable. Only evidence that is both reliable and credible can support a finding of guilt beyond a reasonable doubt.…
[62] As the trier of fact, I may believe and accept as reliable all, some, or none of a witness’ testimony.
[63] As a general comment, I note that the physical evidence, including the video surveillance, the dash-cam video footage and photographs of the Impala, when considered together with the admitted facts, corroborates the evidence of the police constables and the eyewitnesses.
[64] The evidence of the police constables and Jennifer Jordan was straightforward and unchallenged and, therefore, I accept it. With respect to the statements made by the accused, these were recorded by Constable Kirk in her duty buck shortly after the utterances were made.
[65] The Taves were exceptionally reliable witnesses. Mr. Taves made notes of his observations shortly following the incident on May 13, 2018. Both articulated their evidence in a clear and concise manner with an attention to detail. The Taves did not overstate, embellish or exaggerate their respective observations. Both were careful to identify any limitations on their ability to observe and recall the incident. Their evidence was presented in a fair, considered and impartial manner. Overall, I find the Taves’ evidence both credible and reliable and I accept it.
(a) Reliability and Credibility of B.S.’ Evidence
[66] The Supreme Court of Canada in R. v. W.(R.), 1992 SCC 56, referenced two major changes in the approach of courts to the evidence of children: the removal of the belief in the inherent unreliability of the evidence of children; and the removal of the requirement for corroboration. The Court wrote at para. 134:
As Wilson J. emphasized in B.(G.), 1990 SCC 7308, these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child. What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a “common sense” basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.
It is neither desirable nor possible to state hard and fast rules as to when a witness’ evidence should be assessed by reference to “adult” or “child” standards – to do so would to be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law’s approach to children’s evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate.…
[67] This case requires an assessment of the evidence of a child witness who was four years old at the time she provided her video statement to police and seven years old when she testified at trial.
[68] As earlier mentioned in these reasons, B.S. testified remotely by way of a video feed through the Zoom virtual platform. Due to COVID-19 restrictions in place at the time of trial, the complainant testified wearing a face mask making some of her answers difficult to discern. Consequently, a transcript of the complainant’s trial evidence was prepared at my direction to assist the court and counsel in assessing her evidence. Both a DVD and a transcript of the complainant’s video-taped statement to police were made an exhibit at trial.
[69] During closing submissions, defence counsel argued that the complainant’s evidence was both incredible and unreliable and therefore must leave me with a reasonable doubt as to Mr. Thompson’s guilt with respect to these charges.
[70] Defence counsel described the complainant as: (i) someone who doesn’t tell the truth; (ii) someone who has a lack of regard for the truth; (iii) someone who is dishonest; and (iv) someone who is not credible, trustworthy nor reliable.
[71] In support of this position, defence counsel pointed to the many internal inconsistencies between the complainant’s video taped statement and her trial testimony.
[72] Looking first at the complainant’s evidence provided to Constable Steeves on May 13, 2018. The interview room was a comfortable living room-type space appropriately named a “soft room” with a couch and a coffee table. Constable Steeves was seated in an armchair. B.S. was free to roam about the interview room. Constable Steeves began the interview by putting B.S. at ease. He asked her questions about her pets and her siblings. B.S. demonstrated a donkey kick and asked cartwheel. It was apparent that B.S. was not nervous or shy nor was she reluctant to speak with Constable Steeves.
[73] I take judicial notice of the fact that young children are highly suggestible. To ensure he did not taint the complainant’s evidence, Constable Steeves asked open-ended questions and repeated B.S.’ responses when asking follow-up questions. Constable Steeves was careful not to suggest specific answers. His initial questions were designed to establish a rapport but more importantly to allow him to assess B.S.’ cognitive ability to differentiate between reality and pretend or fact and fiction and her ability to appreciate the difference.
[74] I compared and contrasted the complainant’s evidence provided shortly after the incident to the complainant’s trial testimony. Without question, at 7 years of age, B.S. remains a very young witness. However, by the time of trial, B.S. had 3 additional years of cognitive development which enhanced her ability to distinguish between reality and fantasy (or fact and fiction).
[75] When testifying at trial, B.S. clearly understood the importance of telling the truth - even if doing so required her to admit that she could not remember or that she was unsure of her memory. B.S. did not hesitate to admit, both during direct examination and cross-examination, that many of the things she said to Constable Steeves were not correct. For example, during cross-examination when she was asked about punching, kicking and hitting the accused, she immediately responded - without prompting or suggestion - that her earlier evidence in this regard was incorrect. Such a response is the badge of a truthful witness.
[76] During direct examination by Crown counsel, the complainant admitted that the following evidence she provided to Constable Steeves was incorrect:
- she did not have a cat named “Sky”;
- the accused did not take her to his house;
- she did not kick, slap and punch the accused;
- it was not night-time when she was returned home; and
- the accused did not offer her gum.
[77] In addition, physical and other circumstantial evidence at trial revealed external inconsistencies in the complainant’s evidence. For example, B.S. stated during her interview with Constable Steeves and at trial that the interior of the Impala, and in particular the dashboard, was black in colour. It was not. Pictures of the interior of the Impala reveal it is light-coloured. The complainant told Constable Steeves that the accused was not wearing glasses. Donald Taves testified that the accused was wearing glasses. The complainant recalled being carried by the accused over his shoulder whereas Eleanor Taves observed the accused carrying the complainant cradled in his arms.
[78] However, other portions of the complainant’s evidence provided to Constable Steeves were corroborated by physical and other witness testimony. By way of example:
i) B.S. described the vehicle as being rusty. Pictures taken of the Impala confirm the vehicle had rust patches along its wheel-wells;
ii) B.S. described the accused as having a crinkly face and grey hair with a beard. This evidence is consistent with Donald Taves’ description of the accused;
iii) it is an admitted fact that the accused approached B.S. around the corner from her house, picked her up and put her in his car. This is consistent with the evidence of B.S.; and
iv) the Taves observed the accused place B.S. in the front passenger seat of the Impala without belting her. B.S. told Constable Steeves that the car had 4 doors, and that the accused put her in the front seat and forgot to put her seatbelt on.
[79] It was stated by the Court of Appeal in R. v. B.(G.), 1990 SCC 7308:
… [the trial judge] was expressing concern that a flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well-founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oath-taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be assessed, but the standard of the reasonable adult is not necessarily appropriate in assessing the credibility of young children.
[80] The Ontario Court of Appeal in R. v. M.(A.), 2014 ONCA 769 highlighted several basic principles applicable to assessing a young child’s testimony. With respect to inconsistencies, the court stated:
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.
[81] With respect to the inconsistencies between the evidence of the complainant in her video-taped statement and her trial testimony and readily admitted by the complainant, they do not cause me concern with respect to her credibility. These inconsistencies do not go to material issues; rather, relate to peripheral matters and, therefore, do not demonstrate a carelessness with the truth. Instead, these admitted inconsistencies underscore for the court the mental development of the complainant over the past 3 years and demonstrate her enhanced ability to fulfill her promise to the court to tell the truth.
[82] I find that, overall, B.S. excelled as a witness at trial. At the time of her police statement, due to her young age the complainant demonstrated a lack of understanding of the importance of telling the truth. By contrast when testifying at trial, it was readily apparent that B.S. understood the instruction given to her to tell the court only what she could recall and not what she may have been told by her father or others about the incident. This is exemplified by an exchange with defence counsel when B.S. stated that she would tell her story and that her dad would tell his side of the story because she “only knew her part and not his”.
[83] I find that the inconsistencies in the complainant’s evidence do not undermine her overall credibility. Rather, these inconsistencies are to be considered when ascribing weight to the specific evidence to the extent such evidence is material to establishing any element of the offences.
(b) After the Fact Conduct
[84] I will now address the accused’s statements and his conduct on May 14, 2018 to which Constables Potasse and Kirk testified. When considering the accused’s after-the-fact conduct, I must exercise caution because this type of evidence lends itself to propensity reasoning which is impermissible and an error of law. I must consider all possible inferences that do not suggest a guilty conscience which may be drawn from such conduct.
[85] As was recognized by the Supreme Court in R. v. Calnen, 2019 SCC 6 at para. 133:
The idea that the probative value of particular after-the-fact conduct may be assessed by reference to the record as a whole simply conveys that whether an inference is rational and reasonable must be assessed in context. It does not mean that no reasonable and rational inference can be drawn from the after-the-fact conduct unless there is some other direct evidence that somehow supports or corroborates it.
[86] Evidence of Mr. Thompson’s silence, nervousness and refusal to sign the consent to search the Impala is not suggestive of his guilt. The accused is entitled not to speak and cooperate with police or facilitate their investigation and this type of behaviour does not suggest culpability.
[87] However, the fact that the accused removed the front wheels of the Impala and removed the front hubcaps and placed them in the trunk, coupled with his comment to his spouse that he had been working on the vehicle for the prior 3 days (thereby suggesting the vehicle was not operational and therefore could not have been involved in the incident) is circumstantial evidence suggesting a guilty conscience. This evidence when considered against the backdrop of the admitted facts leads me to attach significant weight to this evidence as the only inference which can be drawn is that the accused was trying to cover up his involvement in the incident because he knew he had done something wrong.
(c) The Offences
A. The Offence of Kidnapping
[88] I will now consider the evidence with respect to each of the offences to determine whether the Crown has met its burden. I will deal first with the offence of kidnapping.
[89] Mr. Thompson is charged with the offence of kidnapping under section 279(1)(a) of the Code. Unlike the offence of abduction, kidnapping is an offence against the person, in this case, B.S. Mr. Thompson has been charged with kidnapping B.S. with the intent to cause her to be confined against her will. To confine someone is to physically restrain them against their wishes. Kidnapping requires proof that Mr. Thompson unlawfully took B.S. and carried her away by force against her wishes to another place. Kidnapping is a continuing offence that does not end until the victim is released/freed. R. v. Vu, 2012 SCC 40.
[90] Mr. Thompson was a stranger to B.S. and he had no contact with, connection to or familiarity with, directly or indirectly, either B.S. or members of her family prior to May 13, 2018. Mr. Thompson did not reside in the residential neighbourhood surrounding the intersection of Barker Street and Melsandra Avenue. Furthermore, there is no evidence to explain why Mr. Thompson was in the vicinity of Barker Street and Melsandra Avenue the morning of May 13, 2018. The evidence at trial established that B.S. travelled with the accused in his vehicle for approximately 1 minute and 20 seconds whereupon she was released across the street from her house. The video surveillance shows Mr. Thompson driving slowly into the neighbourhood and quickly leaving the neighbourhood after letting B.S. out of his vehicle.
[91] Mr. Thompson admits to picking up B.S. and placing her in his car. The evidence of B.S. is that she did not want to go with Mr. Thompson and that when he picked her up and put her in his vehicle it made her feel “sad and angry” and “scared”. Donald Taves testified that he observed the defendant exerting some force to transfer B.S. through the driver’s side door and into the front passenger seat of the Impala. The evidence establishes that B.S. was alone with the accused in his vehicle and that she was moved by the accused in his vehicle for a period of time.
[92] As was held by the Supreme Court in R. v. Magoon, 2018 SCC 14, (although in the context of confinement by a parent), a finding of confinement does not require evidence of a child being physically bound or locked up; it can just as easily result from evidence of controlling conduct. This makes abundant sense because as was noted in Magoon, at para 66, “[c]hildren are easier to confine because they are inherently vulnerable and dependent, and generally look to adults to define the scope of permissible behaviour. This is especially so in the case of young children; whose dependency is usually total.”
[93] Therefore, I find that the Crown has proven beyond a reasonable doubt that the accused took B.S. by force and moved her to another location against her wishes. The actus reus of the offence of kidnapping has been established.
[94] In defence of this charge, Mr. Afolabi focused his argument on Mr. Thompson’s lack of intent to confine the complainant. He argued that the Crown failed to prove the requisite mens rea for the offence. Defence counsel argues that Mr. Thompson did not intend to confine B.S. against her will (although this may have been the effect of his actions) rather he simply intended to drive her home.
[95] Defence counsel submits that the defence of mistake of fact is available to Mr. Thompson with respect to his mistaken subjective belief that B.S. consented to being placed in his vehicle and driven home. I was referred to the decision in R. v. Niedermier, 2005 BCCA 15 where the British Columbia Court of Appeal held that the limitations on use of the defence of mistake of fact with respect to crimes involving sexual assault, do not apply to the offence of confinement. It should be remembered that unlike the situation here, in Niedermier the appellant testified in his own defence and, moreover, the complainants in Niedermier were adults.
[96] Mr. Afolabi argues that Mr. Thompson mistook B.S.’ passivity as consent thereby giving an air of reality to the defence of mistake of fact. Defence counsel submits the Crown has introduced no evidence to prove that the accused knew he was acting contrary to her will when he picked up B.S. and placed her in his vehicle. Defence counsel further argues there is no evidence Mr. Thompson knew B.S. did not want to be with him and that her failure to resist being placed in his vehicle gives the defence of mistake of fact an air of reality.
[97] This argument must surely fail. First, Mr. Thompson did not testify as to his subjective belief that he believed B.S. consented to being picked up, placed in his vehicle and driven away to another location. How can a defence of honest but mistaken belief in consent have an air of reality without the accused’s evidence as to his subjective state of belief? Without his evidence, such a defence is entirely speculative. Perhaps this was Mr. Thompson’s honest but mistaken belief but we will never know without his evidence.
[98] A more fundamental basis for rejecting a defence of honest but mistaken belief in consent is that it is simply not available as a defence where the allegation of kidnapping involves a child. Similar to allegations of sexual offences involving children, an absence of consent is presumed. A four-year-old child cannot consent to being confined by a stranger. There can be no air of reality to a defence of honest but mistaken belief in consent in the circumstances of this case. Such a defence has no air of reality regardless of whether B.S. physically resisted being placed in Mr. Thompson’s vehicle, or passively accepted Mr. Thompson placing her into his vehicle.
[99] I find that on the evidence the Crown has proven Mr. Thompson intended to confine the complainant when he placed her in his vehicle and drove away, thereby moving her from one place to another. Once placed in his vehicle, B.S. was no longer free to move about. And the evidence establishes beyond a reasonable doubt that Mr. Thompson’s confinement of B.S. in his vehicle was done against her will.
[100] Therefore, the Crown has proven, beyond a reasonable doubt, the essential elements of the offence of kidnapping.
B. The Offence of Abduction
[101] Turning to count four on the indictment. Mr. Thompson is charged with the offence of abduction of a child under the age of 14 pursuant to s. 281 of the Code. To support a conviction on this count, the Crown must establish beyond a reasonable doubt the following essential elements of the offence:
i) that B.S. was under 14 years of age;
ii) that Mr. Thompson was not a parent or lawful custodian of B.S.;
iii) that Mr. Thompson intentionally abducted or got control over B.S.;
iv) that Mr. Thompson’s abduction of B.S. was unlawful; and
v) that Mr. Thompson intended to deprive the parents of B.S. of possession of her.
[102] The defendant concedes that the evidence establishes the first four elements of the offence of abduction. That is, B.S. was under the age 14 years at the time of the alleged offence, Mr. Thompson was not a parent of B.S., Mr. Thompson intended to take control over B.S. when he placed her in his vehicle and that the placing of B.S. in his vehicle was unlawful. However, the defendant submits the Crown failed to prove, beyond a reasonable doubt, the fifth essential element of the offence or the mens rea, namely, that he intended to deprive the complainant’s parents of possession of her.
[103] Following the close of the Crown’s case, the defendant brought a motion for non-suit with respect to this count. Defence counsel argued the Crown had failed to put forward sufficient evidence upon which a properly instructed jury could find that Mr. Thompson intended to deprive B.S.’ parents of possession of her. The defendant argued that the only evidence of the accused intention establishes he intended to take B.S. home and, ultimately, did take her home - where her parents were physically present.
[104] To support his position, defence counsel relies on the evidence of the complainant provided during cross-examination. B.S. testified that at some point during their time together the accused asked her where she lived. B.S. also agreed with defence counsel’s suggestion that before placing her in his vehicle, the accused said that he was going to take her home.
[105] I dismissed the defendant’s motion for non-suit and in doing so relied on the decision in R. v. Chartrand, 1994 CarswellOnt 83 S.C.C.. In Chartrand, the Supreme Court of Canada makes it clear that, unlike the offence of kidnapping, s. 281 of the Code creates an offence against the rights of the parents of an abducted child. The parents of B.S. are specifically named as complainants in count four on the indictment.
[106] As was recognized by the court in Chartrand, at para. 36, the purpose of s. 281 is to protect children from abduction and reflects society’s interest in the security of children by preventing and deterring the abduction of children by strangers. To attract criminal liability under this section of the Code, at paragraph 40, nothing more is required beyond the physical act of taking the child. This is not to say that there is no defence to a charge under s. 281. Section 285 permits the taking of a child where it is necessary to protect the child from danger of imminent harm or the child is at imminent risk of harm or is in danger.
[107] Defence counsel argued that it defies common sense that Mr. Thompson would “do wickedness in the open” as is alleged and that I should disabuse myself of any bias I might hold against elderly men who pick up children and place them in their car for purely innocent purposes.
[108] It is trite law that a person intends the natural consequences of his actions regardless of his actual purpose. [Chartrand, at para. 60]. With respect to the Crown’s obligation to prove Mr. Thompson’s intent, the court in Chartrand held at paras. 61 and 62:
61 To summarize, although proof of intent under s. 281 can be met by the intentional and purposeful deprivation of the parents’ control over the child, the main body of jurisprudence and the academic commentaries support the view that the mens rea in offences such as s. 281 of the Code can also be proven by the mere fact of the deprivation of possession of the child from the child’s parents (guardians, etc.) through a taking, as long as the trier of fact draws an inference that the consequences of that taking are foreseen by the accused as a certain or substantially certain result of the taking, independently of the purpose or motive for which such taking occurred.
62 The objective of the legislation is simple, as it is both preventative as regards future harm, and reactive as to the act of immediate wrongful interference with custodial rights. In this light, and with the purpose of the section in mind, the intent requirement of s. 281 of the Code must be interpreted so that if a child is in a park or on the street with the knowledge or consent of the parents (guardians, etc.), and therefore, within the parents’ (guardians’, etc.) realm of control and possession and is taken, it will be rare indeed that the deprivation of possession of the child from the parents (guardians, etc.) was not the intent of the impugned act. This is ultimately, however, a matter of inference for the trier of fact. In the end, if the purpose of the section is to be achieved, foresight of the certainty or near certainty of the end result must be sufficient.
[109] With respect to Mr. Thompson’s intent, the uncontroverted evidence adduced at trial is as follows:
i. Mr. Thompson was, at the time of the incident, a stranger to B.S. and her family;
ii. in May 2018 Mr. Thompson did not reside in or near the neighbourhood where the incident occurred;
iii. at the time of the incident, B.S. was picking flowers and looking for ladybugs a short distance from her home. There is no evidence B.S. was lost or that B.S. was in danger or in distress when approached by Mr. Thompson;
iv. Mr. Thompson picked up B.S. on the passenger side of his vehicle, carried her in his arms around the rear of his vehicle and placed her in the front passenger side of his vehicle through the driver-side door;
v. Mr. Thompson did not fasten a seat belt around B.S. and the evidence establishes Mr. Thompson was driving erratically shortly after B.S. was placed in his vehicle thereby creating a situation of danger;
vi. Mr. Thompson did not ask B.S. where she lived before placing her in the car and only asked her where she lived after driving through the Valleyview Church parking lot and heading westbound on Melsandra Avenue;
vii. B.S. pointed out her house to the accused; however, the accused dropped her off at the neighbour’s house across the street; and
viii. Mr. Thompson did not ask the Taves to assist him to return B.S. to her parents when they were stopped behind his vehicle at the intersection.
[110] With respect to the essential element of intent to deprive B.S.’ parents of possession of her, the only reasonable inference which can be drawn from the evidence (or absence of evidence) is that by taking B.S., Mr. Thompson either had the foresight, or should have foreseen, that the deprivation of B.S.’ parents of their possession of her was a certain result of his actions.
[111] There is no evidence that Mr. Thompson intended to take B.S. from the possession and control of her parents for an innocent purpose. Regardless, Chartrand makes it clear that the mere taking of exclusive control and possession of a child by a stranger, even momentarily or for a short duration, without the consent or knowledge of the child’s parents or guardians, is sufficient to found a conviction.
[112] Section 281 of the Code deals with the offence of stranger abduction. Similar to the offence of kidnapping, a child cannot consent to being taken into the exclusive control and possession of a stranger. Mr. Thompson was unknown to B.S. and her family on May 13, 2018. At the moment Mr. Thompson picked up B.S. and placed her in his vehicle and drove away (facts which he has admitted), he removed possession of B.S. from her parents without their knowledge and consent and an offence was committed. The evidence establishes that this incident is a classic case of stranger abduction. Bias plays no part in my decision.
[113] I am satisfied that all five essential elements of the offence of stranger abduction codified in s. 281 of the Code have been proven beyond a reasonable doubt.
C. Sexual Interference and Sexual Assault
[114] Turning to counts one and two on the indictment Mr. Thompson is charged with the offence of sexual interference under s. 151 of the Code. The Crown must prove beyond a reasonable doubt that Mr. Thompson touched B.S. with a part of his body for a sexual purpose at a time when she was under the age of 16.
[115] Mr. Thompson is further charged with the offence of sexual assault under s. 271(1) of the Code. The Crown must prove beyond a reasonable doubt that Mr. Thompson intentionally applied force to B.S. without her consent in circumstances of a sexual nature.
[116] The essential elements of sexual assault and sexual interference overlap. That is, if the offence of sexual interference is proven beyond a reasonable doubt, the offence of sexual assault will also have been proven.
[117] With respect to the evidence relating to these counts, B.S. told Constable Steeves that the accused pulled her onto his lap and then proceeded to pull down her pants and underwear to her ankles. She said the car was moving when this occurred. At trial, B.S. adopted this evidence and added that the accused also slapped her bum once.
[118] Specifically, the evidence of B.S. during direct examination was as follows:
Q. … I wanna ask you about when he pulled down your pants and your underwear, okay?
A. Okay.
Q. Tell me – do you remember if that happened before or after he asked you where you lived?
A. It happened before.
Q. Okay. And did he say anything to you when he pulled down your underwear?
A. No.
Q. Where were you in the car when he did that?
A. I was just laying on his lap like on my tummy in the front seat.
Q. And how did you get on his lap?
A. He pulled me on it.
Q. And where – how did he pull you?
A. He like took me and put me on his lap and pulled down my pants.
Q. Where on you did he grab you to pull you onto his lap?
A. On, on my waist.
Q. Your waist? Okay. So, he – so where, you were in the passenger seat then?
A. Yes.
Q. And he grabbed you by your waist and puts you on his lap?
A. Um-hmm.
Q. And then he pulled down your pants and your underwear?
A. Yes.
Q. Okay. And I think you were showing us on the video where he pulled them to on your leg?
A. Yes.
Q. Is that right?
A. Yes. On my ankle.
Q. Okay. So, they were all the way down but you were still wearing them?
A. Yes.
Q. Okay. And when he pulled down your pants and you are on your tummy on his lap, what did he do?
A. He pulled down my pants.
Q. And once they were down, what did he do?
A. Slapped me.
Q. He slapped you? Where did he slap you?
A. On my bum.
Q. Okay. Do you remember how many times he did that?
A. Just once.
Q. And what happened after he slapped you on your bum once?
A. Put me back into the passenger seat and kept on, and started driving.
Q. And sorry, he put you back into the passenger seat and – I miss that last part.
A. Started driving.
Q. Started driving. And you said you pulled your pants back up?
A. Yes.
Q. Okay. So, when he put you back on the passenger seat, your pants were still down?
A. Yeah, but then I pulled them back up.
Q. Okay. And I should say your pants and your underwear were still down?
A. Yes.
Q. Okay. And did he say anything when he slapped your bum?
A. No.
Q. Did you say anything?
A. I said “ow”.
Q. You said in your video that at some point you punched and kicked. Do you remember that?
A. I didn’t do that.
Q. You didn’t do that? That wasn’t right?
A. Yeah.
Q. Do you remember why you said that?
A. I don’t know.
Q. But when you say that he pulled down your pants and your underwear and he slapped your bum – you definitely remember that?
A. Yes.
[119] During her video-taped statement of May 13, 2018, B.S. did not tell police that the accused slapped her bum. This material detail was first provided by B.S. during her direct examination at trial. During cross-examination when questioned by defence counsel whether the accused had in fact slapped her bum, the complainant responded she was not sure. During re-direct examination by Crown counsel, B.S. confirmed she could not be sure that the accused had slapped her bum. She also told Crown counsel she was no longer sure the accused pulled down her underwear.
[120] By her own admission at trial, B.S. is unsure whether the accused slapped her bum and pulled down her underwear. Consequently, I too am not sure and therefore left with doubt as to whether these events took place.
[121] Turning now to the complainant’s evidence that the accused pulled down her pants. The accused admits that should the court find as a fact that the accused pulled down the complainant’s pants, as she alleges, the essential elements of the offences of sexual interference and sexual assault will have been proven beyond a reasonable doubt.
[122] At trial the complainant testified that she was “absolutely sure” Mr. Thompson laid her down on his lap and pulled down her pants.
[123] As a four-year-old child, B.S. was highly suggestible. However, there is no evidence it was suggested to her that the accused pulled down her pants. Neither Constable Steeves nor the complainant’s parents suggested to B.S. that the accused pulled down her pants or engaged in any other physical conduct with her of a sexual nature. During cross-examination, B.S. denied being told about “good touch and bad touch” by her parents and denied knowing the difference.
[124] Defence counsel submits that “the moral fibers of children are not as tightly woven as the moral fibers of adults”. I disagree with that general proposition.
[125] Unlike cases involving historical allegations of sexual assault where an adult complainant’s credibility has been undermined by evidence of a motive to fabricate allegations against a known accused, here there is no evidence of any such motive. The complainant was a young child both at the time of the incident and at trial. The accused was a stranger. At her young age and in these circumstances, I find B.S. lacked the cognitive ability to manipulate or fabricate her evidence for some ulterior motive.
[126] The disclosure of the sexual assault was spontaneous. B.S. was not prompted by Constable Steeves. Further aspects of the manner in which the assault was disclosed by B.S. are also instructive. B.S. appeared to know the act of pulling down her pants was wrong, when she said to Constable Steeves she wanted to tell him “a secret”. She then moved closer to Constable Steeves and told him in a quiet tone that the accused had pulled down her pants. When asked how the accused pulled down her pants and how far he pulled them down, the complainant, without hesitation proceeded to show Constable Steeves how far her pants were pulled down. This suggests B.S. had a clear actual memory of the act.
[127] Moreover, this evidence does not fall into the same category as the admitted fictitious evidence that B.S. saw a deer, had a cat, was offered mint gum and blue playdough or that she punched and slapped the accused. It defies common sense that a four-year-old child, without prompting or suggestion, would spontaneously disclose to police that a stranger pulled down her pants unless he, in fact, did so.
[128] The complainant’s evidence that the accused laid her down on his lap and pulled down her pants, has been consistent throughout. Although there were no eyewitnesses to the alleged sexual assault, the complainant’s evidence with respect to this offence is corroborated by the following circumstantial evidence:
i) the day following the incident, police found three flower petals red and orange-reddish in colour near the garage at the rear of the accused’s property. Only white lilies were growing in the area and none were in bloom. This evidence is consistent with B.S.’ evidence that when the accused pulled her onto his lap, he “squished” the tulip she was holding. In photographs filed, orange and red tulips can be seen in bloom in the flower bed of the second house east of the intersection of Barker Street and Melsandra Avenue; and
ii) the Taves observed the accused driving erratically after turning eastbound on Melsandra Avenue and said there was nothing external to the vehicle, such as weather or road conditions, to explain the accused’s erratic driving. Mr. Thompson’s erratic driving is consistent with physical interaction in the vehicle between the accused and the complainant as described by B.S.
[129] B.S. was unchallenged in her evidence that the accused pulled her onto his lap and pulled down her pants. The complainant did not waver in her recollection. Furthermore, nothing in the evidence of the other witnesses causes me to disbelieve the complainant’s evidence. This part of her testimony was consistent from her statement to Constable Steeves through to the end of her testimony at trial. I find this evidence both credible and reliable and I accept it. Consequently, I find as a fact that the accused pulled B.S. onto his lap and pulled down her pants.
[130] Therefore, the Crown has established the accused’s guilt of the offences of sexual assault and sexual interference beyond a reasonable doubt.
Conclusion
[131] For these reasons, I find the defendant, Lawrence Allen Thompson guilty of all 4 counts on the indictment and I will endorse the indictment accordingly.
Justice A.K. Mitchell Released: May 10, 2021
COURT FILE NO.: 166-19 DATE: 2021/05/10 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – LAWRENCE ALLEN THOMPSON REASONS FOR JUDGMENT Justice A.K. Mitchell Released: May 10, 2021