Her Majesty the Queen v. H.A., 2021 ONSC 6916

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

H.A.

J. Cavanagh, for the Crown

Self-represented

P. Lewandowski, s. 486.3 counsel and assisting H.A.

HEARD: July 12, 13, 14, 15, 16, 19, 20, and August 4, 2021

SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER PURSUANT TO S. 486.4 OF THE CRIMINAL CODE HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTItY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, INcLUDING THE NAMES OF OTHER CROWN WITNESSES, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY.

REASONS FOR JUDGMENT

Ryan bell j.

Introduction

1HA is charged with one count of sexual interference and one count of sexual assault, contrary to ss. 151 and 271 of the Criminal Code. The charges arise from incidents alleged to have occurred in the summer of 2018, when the complainant LDM was nine years old and living with her family in the apartment next door to HA’s apartment. LDM and her younger sister played frequently with HA’s son, M. The children were back and forth often between the two apartments. LDM alleges that on one occasion, while the children were in HA’s tent, HA reached under her dress and underwear and rubbed her vagina. LDM also alleges that on more than one occasion, HA rubbed her vaginal area while they were sitting on a bed set up on the accused’s balcony. LDM alleges that, both in the tent and on the balcony, HA’s hand was concealed by a blanket.

2The witnesses for the Crown were LDM, her mother LD, her father DM, and Constable Sarah Armstrong. HA testified in his own defence. He denied the charges against him. The other defence witnesses were HA’s sons, M and H, and his wife, MM.

Legal Principles

3HA is presumed innocent of all charges against him. It is only after consideration of all of the evidence and only if that evidence is found to establish guilt beyond a reasonable doubt that the presumption of innocence is set aside, and a finding of guilt can be made. It is not sufficient for the Crown to establish possible guilt or even probable guilt. For a finding of guilt to be made, the court must be sure that the offence was committed.

4To assist in the proper application of the burden of proof when there are competing versions of what happened, I have instructed myself in accordance with the Supreme Court of Canada’s direction in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742:

First, if I believe the evidence of the accused, I must acquit.

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

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

5The outcome of this case turns on issues of credibility and reliability. Credibility has to do with the truthfulness of the witness. Reliability has to do with the ability of a witness to observe, recall, and recount events that are in issue: R. v. C.(H.), 2009 ONCA 56, at para. 41. The assessment of the evidence of a witness is not an all or nothing proposition. A judge is entitled to accept some, all or none of a witness’ evidence: R. v. Leblanc, [2018] O.J. 5779 (Ont. S.C.J.).

6My assessment of the credibility and reliability of each witness takes into account that many individuals called upon to give evidence at a criminal trial are not familiar with the process, may never have experienced a courtroom setting, and are required to rely upon their memory of events that transpired years earlier. Each witness testifying is unique. I must assess a particular witness’ credibility and evidence using criteria appropriate to that witness’ mental development, understanding, and ability to communicate: R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, at para. 26.

7I am mindful of inconsistencies and contradictions in the testimony of any witness. Consistency is an element of truthful testimony; however, perfection in a witness’ testimony is not expected. Significant inconsistencies or contradictions can, however, in some circumstances, result in a witness’ testimony being rejected in whole or in part. An inconsistency that relates to a peripheral issue may not have a significant impact on the witness’ credibility. If, however, a witness’ account contains many inconsistencies on peripheral issues, this could undermine the overall reliability of their evidence. Testimony that is internally contradictory, incoherent, or implausible may lead to a finding that a witness is not worthy of belief on specific topics or more generally.

8The evidence of children should be approached from a common sense basis which takes into account the strengths and weaknesses characterizing the evidence offered in a particular case: W.(R.), at para. 25. As the Supreme Court of Canada acknowledged in R. v. G.B., 1990 7308 (SCC), [1990] 2 SCR 30, at para. 48, assessing the credibility of young children using the standard of the “reasonable adult” is not necessarily 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 carefully assessed but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children.

9I heard evidence as to the circumstances in which LDM made disclosure to her parents. In R. v. D.D., 2000 SCC 43, [2000] S.C.J. No. 44, at para. 63, the Supreme Court of Canada expressly rejected the previous stereotypical assumptions and myth-based reasoning that victims of sexual aggression are likely to report soon after. The Court stated, at para. 65:

Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

The Evidence

LDM’s Testimony

10LDM was nine years of age in the summer of 2018. She was 12 years old when she testified at trial. LDM lives in the same apartment as she did in 2018. She lives there with her mother and her younger sister. Her father, who lived with them in the summer of 2018, now lives in a neighbouring apartment building.

11In the summer of 2018, HA lived next door to LDM. He lived there with his wife, his sons, and his newborn daughter. HA’s son M is a little younger than LDM. LDM, her sister, and M would often play together, including a hide and seek game they invented. Most of the time, they played at M’s apartment. Once or twice, HA played tag and hide and seek with them.

12LDM testified about a time in the summer of 2018 when she, her sister, and M were in HA’s tent. It was “like camping” but they did not stay in the tent overnight. It was HA and MA’s idea. LDM asked her parents for permission. The three children and HA went downstairs to where the tent was already set up. The children played a hide and seek game in the tent: the person who was “it” sat in the middle of the tent and the others were around the edges of the tent. They hid under pillows and a blanket. After they had played for a while, the children decided to lie down in the tent because they were exhausted. There was one blanket covering all the children while they rested. HA was sitting at their feet. While they were lying under the blanket, HA reached under LDM’s dress and under her underwear and touched her “front private area”, her “private spot”, and rubbed her with his hand “back and forth.” LDM said that she froze when he touched her because she did not know what to do. After “a couple of minutes” she told her sister that they should probably go home.

13LDM said that HA also touched her in the same way when they were on the balcony of HA’s apartment. There was a bed on the balcony and there were blankets on the bed. HA would sit on the bed and tell her to “come here” and lightly pat the bed beside him. There was a blanket covering the lower half of her body. HA touched her in the “front of her privates” using “a stroking motion with his fingers.” This happened more than once, both before and after the incident in the tent. LDM thought that HA touched her “on top” of her clothing.

14There was a barbecue at the apartment building that summer. It took place at the front of the building. LDM went to the barbecue and played with M. Her parents were not there. She testified that HA “did not touch me on that day.”

15The day that she told her parents about the incidents with HA, LDM was outside with her parents and her sister. HA came up riding “something close to a motorcycle.” Her parents talked to HA for a couple of seconds and then HA went inside the apartment building. At that point, she told her parents what had happened. She believes that she told her parents first, before her sister said that something similar had happened to her. LDM’s father was mad. He went after HA. Her mother was shocked and crying.

16LDM’s father was about to move out of their apartment when she told her parents about what had happened. LDM did not want her parents to split up. She agreed on cross-examination that she thought that if she told her parents about what had happened, her “real dad” would come back. She learned that the touching by HA was wrong a few days before she told her mother, during a walk back from Tim Horton’s with her father and her sister.

17The day after LDM disclosed to her parents, a police officer came to their house. The day after that, LDM went to the police station. There is no dispute that the conversations with the police occurred on September 17 and 18, 2018.

LD’s Testimony

18LD is LDM’s mother. LD testified that LDM and her sister played with M, dividing their play time equally between the two apartments. LD had no concerns regarding her children while they were playing back and forth. One day in June, HA asked LD if he could take the girls camping with M. LD agreed. She could see the tent from her balcony although she could not see inside. The children were running in and out of the tent.

19LD testified that she thought it was that day – the day they went camping – that one of the children tore her pants. On cross-examination, LD described a cement ramp-like structure that the children used as a slide. From her balcony, LD yelled down to both her children not to slide on it. That particular day, LDM ripped her black pants at the back. LD discovered the rip when they came back upstairs for dinner.

20One day in September, when she was walking LDM and her sister to school, LD noticed that HA was following them. He came up to her and asked if the girls could change schools to attend the same school as his son. LD told him no. She felt uneasy and reported the incident to the school principal. LD agreed on cross-examination that M took the bus to his school and that HA had heard her complain about the 20-minute walk to her daughters’ school.

21On September 16, LD was outside the apartment building with DM, her children and three of their friends. They were waiting for the friends to be picked up. HA came up to LD on his scooter and asked if LD and the girls would move in with him. DM told him no, as did LD. HA left. After HA left, LDM’s sister told LD that HA had touched her, pointing to the area of her vagina, over her clothes. LD asked LDM if HA had done the same thing to her. LDM told her that he had. LD “freaked out a little.” DM went off to look for HA. After the other children were picked up, they went upstairs to their apartment. They “cried a lot” and then called the police.

22The Crown applied under s. 9(2) of the Canada Evidence Act to cross-examine LD on her statement to the police. In her statement, LD said that her daughter answered “under” when LD asked whether HA had touched her over or under her clothes. Following the approach endorsed by the Supreme Court of Canada in R. v. Stewart, 1977 2. S.C.R. 748, I permitted LD’s memory to be refreshed. After reading the relevant portion of her police statement, LD testified that “clearly it was ‘under’.”

23LD’s evidence on cross-examination was that LDM told her about two incidents: 1) the incident in the tent, and 2) the day HA took them to the barbecue. LD said that when LDM told her about the barbecue incident, her first reaction was to say words to the effect, “How could he do that in public?” LD acknowledged that before September 16, HA had asked her three or four times if she and her girls would move in with them. HA had told her that his apartment was ODSP-subsidized, and that he might lose his apartment because his family had moved out. LD told him that she would have to talk to DM first.

DM’s Testimony

24DM is LDM’s father. DM and LD moved into the apartment with their children around August 2017. In August or September 2018, DM was in the process of finding a new place. He moved out in March 2019.

25DM had some brief conversations with HA; usually these took place on the balcony because they both smoked. One day, HA suggested that DM should talk to his daughters about “not trusting people regarding sexual molestation and so forth.” DM told him that they had explained that to the girls.

26DM was aware that HA had had conversations with LD to try to convince her to move in with him. This was shortly after HA’s wife and children had left the apartment. One conversation lasted about an hour, with HA talking to both LD and DM. No formal answer was given to HA at that point in time.

27On September 16, DM, LD, their daughters, and their friends were outside, in front of the apartment building. HA came up on his moped and asked LD if she had made a decision about moving in with him. DM responded “no, because she doesn’t want to live with you.” HA then drove off. LDM then spoke up and said that she had been touched inappropriately by HA in “her no/no areas.” LD asked LDM whether she was touched over or under her clothes and LDM responded “under.” DM went off searching for HA. When DM returned to their apartment, LD was crying. They called the police that night and the police came over the next morning.

Constable Armstrong

28LD advised the police on September 13 that she had an interaction with HA at her daughters’ school. It is admitted that the report concerning this interaction was made on September 14. LD advised the police that there had been an interaction with HA in front of their apartment building on September 16, the day that LD’s children disclosed to her.

HA’s Testimony

29In the summer of 2018, HA was living with his wife, his two sons, and his newborn daughter at the apartment building. LDM and her family lived next door. One day, HA set up one of his two tents on the ground at the back of the apartment building. M and the two girls were there while he was setting the tent up. HA “furnished” the tent with “five mats” from the cushions of two discarded couches that he had found in the dumpster. The mats were about five inches thick. There was no blanket in the tent. There was no sleeping when HA was in the tent. LDM was wearing pants that day. HA testified that he did not touch her “privates.” He denied that he touched her vagina under a blanket, or anything else, at all.

30On cross-examination, HA stated that he did not invite the children to go camping: the children had decided to go camping and he then talked to LD. He kept the flaps of the tent open because he was intentionally trying to reduce their privacy. He wanted to be visible to everyone, to “keep myself in the clear so I am not accused falsely.” He sat at the door with his arms crossed.

31HA denied that he touched LDM in a sexual way on the balcony of his apartment. He may have touched his son to get the game started. He testified “I don’t touch children.” There was a bed out on his balcony and there were pillows and blankets on the bed. On cross-examination, HA denied ever sharing his laptop screen with the girls. At first, he denied that they would be able to see what was on his screen even if they were sitting beside him on the bed. He then acknowledged that it would have been possible for someone sitting beside him to see the screen “if someone did actually peek.” HA acknowledged that sometimes the girls sat beside him on the bed. HA also stated that he told LDM “I don’t want you anywhere near me.”

32HA’s two-bedroom apartment was fully paid for by ODSP. When his wife and children left, ODSP would not have let him stay there on his own. The apartment building required two months’ notice and, after his family had left, he had already spent three months in custody. HA put “two and two together” and proposed to LD that they could give each other a hand financially by sharing the rent on his apartment. LD told him to let her think about the idea. He went to the girls’ school to look for LD because he needed an answer. Again, she told him to let her think about it. He did not get a firm answer until the day when he approached LD in front of the apartment building. LD told him that she and the children did not feel comfortable with the proposed arrangement.

33On cross-examination, HA stated that one day, the girls and M were playing a game in his wife’s room. When HA saw it, he kicked them out of the room. LDM threatened him, saying, “I will make you pay for this.” HA did not take LDM seriously and “shrugged it off.”

34HA was cross-examined on his conversation with DM about the girls behaving immodestly. HA said to DM “you people better start not flaunting yourselves. Like, honey, an opened jar of honey for bees to come and land on like this bottle of water, if it’s opened, it is susceptible to germs.” He described the girls as being dressed immodestly, somewhat provocatively: “And I was against it all the way and I demand a change of attire.”

M’s Testimony

35M is HA’s younger son. M is now nine years old; he was six in the summer of 2018. His video recorded statement to the police was admitted in evidence at trial as his evidence in chief. In the video recording, M stated that in the tent set up on the apartment grounds, there were pillows. There was also reference to a “pillow bag.” In his statement he said, “no blankets.”

36On cross-examination, M testified that “they all” played in the tent – meaning, LDM, her sister, M, and HA. It was HA’s idea to rest in the tent and they were all sleeping in the tent. M agreed that there were pillows and mats in the tent. M agreed that the mats were like a sleeping bag, and a little like a blanket.

37On re-examination, M stated that the “kind of like a blanket thing...felt like a sleeping bag” and “it kind of felt like the tent flooring.” The mat or mats were “as big as almost the wall.” When they were sleeping in the tent, the mat was “wide enough for me, [LDM’s sister], and the other girl [LDM] and my dad.” M did not think there was anything covering him or the girls during the sleep portion while they were in the tent.

H’s Testimony

38H is HA’s older son. H testified about the “whole set-up” HA had on the balcony. Sometimes, H’s mother would “shoo” the children out onto the balcony to play with HA. HA would sit beside the girls on the balcony and read to them.

MM’s Evidence

39MM confirmed that she and the children left the apartment because of their relationship with HA. They did not leave because of LDM’s family. She said that the girls always went out on the balcony. In her words, “they liked to stay beside my husband on the bed.” There were pillows and blankets on the bed. MM would sometimes see HA with his laptop with the girls sitting beside him.

Section 151 of the Criminal Code

40Section 151 provides that a person who “for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years” commits sexual interference.

41The actus reus of the offence is touching the body of a person under the age of 16. LDM was nine years of age at the time of the alleged incidents. The Crown must prove that HA intentionally touched any part of LDM’s body for the actus reus of sexual interference to be made out.

42The mens reus of the offence of sexual interference is the specific intention to touch the complainant for a sexual purpose.

Section 271 of the Criminal Code

43In R. v. R.V., 2021 SCC 10, at para. 51, the Supreme Court of Canada stated that a person commits sexual assault “by applying force intentionally to another person, directly or indirectly, in circumstances of a sexual nature.” Applying force can include any form of touching: R.V., at para. 52.

Analysis: Assessment of HA’s evidence

44The first step in the typical W.(D.) analysis is to consider whether or not I believe the evidence of HA. If I believe his evidence that the incidents as described by LDM did not occur, he is not guilty of the charges against him.

45In assessing whether or not to believe the accused’s version of the events, the trier of fact is not required to consider that evidence in isolation as if the Crown had led no evidence. Rather, the trier of fact may assess the accused’s evidence in light of all of the evidence. As the Court of Appeal stated in R. v. Hoohing, 2007 ONCA 577, at para. 15:

The evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is given that is contradictory, or casts doubt on the accuracy or reliability of the witness’ evidence, that evidence may no longer be believable, or in the case of an accused, may no longer raise a reasonable doubt.

46I do not believe HA’s denials that he touched LDM as she alleges. I do not find significant aspects of HA’s evidence to be credible and I am not left in reasonable doubt by his evidence. My reasons are the following.

47HA’s statement as to why he left the flaps of the tent open – “to keep myself in the clear so I am not accused falsely” – is inconsistent with his decision to “go camping” with the children in the first place. If HA was so concerned about being “accused falsely”, it defies logic and common sense that he would have placed himself in such a position by permitting LDM and her sister to play in the tent. HA attempted to explain the apparent inconsistency by stating that it was the children who decided to go camping and that he merely “executed” their decision. This attempt to shift the responsibility to a nine-year old and two six-year olds was not isolated to this instance. Several times during his testimony, in an apparent effort to explain away his conduct, HA stated that he was trying to appease his son. I reject HA’s explanation because it simply does not make sense. This is a significant inconsistency in HA’s evidence that undermines the credibility of his denial of the alleged conduct.

48HA’s repeated attempts to shift the blame to the children undermine HA’s credibility more generally. In addition to the examples I have already noted, HA blamed LDM and her sister “in part” for his wife’s decision to leave him. HA went further, adding “it is my wife’s words.” In her evidence, MM confirmed that she and their children left because of HA, not because of LDM and her family. Another example, one that undermines HA’s credibility generally and the credibility of his denial of the alleged conduct, is HA’s evidence about the children wrestling with him. On cross-examination, HA agreed that he told the detective “[t]hey’re all over you. I mean with their bodies, all over you…they are wrestling, and they wrestle me down on the bed and I’m what what am I supposed to do, you know.”

49HA’s evidence about the children wrestling with him is also inconsistent with his testimony that “I don’t touch children” and his evidence that he may have touched his son only to get a game underway.

50HA’s testimony minimizing his contact with the children is inconsistent with his acknowledgment that LDM and her sister sat beside him on the bed on the balcony. I find HA’s statement that he told LDM “I don’t want you anywhere near me” to be untruthful because the statement cannot be reconciled with HA’s own testimony, it is contradicted by LDM’s testimony about what happened on the balcony, and it is inconsistent with the evidence of MM and H. Both MM and H testified that HA sat beside the girls on the bed on the balcony.

51I also do not believe HA when he stated that LDM threatened “to make [him] pay for this” after HA stopped the children playing a game on the bed inside the apartment. HA made this statement, for the first time, during cross-examination. It was not put to LDM by counsel when she first testified at trial and she was not asked about the alleged threat at the preliminary inquiry. It was not put to M by counsel when he testified. HA’s explanation for not raising the so-called threat earlier – that he was waiting “for the opportunity” – is not credible and makes no sense. This is particularly so, given that HA was asked by counsel at the end of his examination in chief if there was anything else he wished to comment on.

52HA’s statement about a threat was not corroborated by either M or LDM when they were recalled and asked about this issue. M did not think that there was a time when HA said mean things to LDM, nor did he think that LDM said mean things to his father. LDM testified that there was only one time when HA got upset when they were playing games in the bedroom. She did not recall saying that she would “make him pay.” MM testified that she overheard LDM yelling at HA more than once, with HA responding each time, “I tell your mom and dad.” While MM “thought” that she overheard “something” while the children were playing, she added “I think maybe – I don’t know.” MM’s evidence does not serve to corroborate HA’s evidence that LDM threatened to “make him pay.”

53In addition, I find it highly implausible that HA was prepared to raise the issue of the girls behaving and dressing immodestly with DM but that he did not speak to LDM’s parents about the alleged threat made by LDM. I also find it highly implausible that LDM threatened HA in this fashion, but that HA continued to welcome the girls into his home thereafter. For these reasons, I find HA’s statement that LDM threatened him to be untruthful.

54I find it implausible that HA furnished the tent with cushions from discarded couches he found in the apartment building’s garbage container which, in HA’s own words, “is full of – you can put whatever you want, mosquitos, flies, cockroaches, bedbugs, whatever you want to put.” It would have been a simple matter to outfit the tent with bedding items from the two apartments that were just upstairs. HA’s evidence that there was no sleeping while he was in the tent and that he sat at the door with his arms crossed was not only contradicted by LDM’s testimony, but also by that of M. According to M, it was HA’s idea to rest in the tent and they all slept in the tent. I accept M’s evidence which is consistent with the idea that they were going “camping.”

55Crown counsel submitted that HA’s answers on cross-examination were often evasive and unresponsive. Counsel contrasted HA’s answers on cross-examination with his evidence in chief when, counsel submitted, HA proved capable of answering directly and concisely. Defence counsel attributed HA’s manner of speaking and presentation, which sometimes included anecdotes, in part to cultural differences. Defence counsel submitted that HA’s manner of speaking and presentation was consistent throughout.

56I agree with the defence that HA referred to anecdotes and analogies throughout his testimony. For example, HA compared the girls’ immodest manner of dressing to an open jar of honey, an open bottle of water, that is susceptible to germs. To be clear, in assessing HA’s credibility, I have considered HA’s statements regarding the girls’ immodesty only to the extent that HA’s firmly stated views and his discussion with DM are inconsistent with him “shrugging off” LDM’s alleged threat to “pay him back.”

57That said, I agree with the Crown that HA’s answers to certain questions on cross-examination were evasive, unresponsive, or marked by a refusal to admit the obvious. In these respects, HA’s manner of testifying further damaged his credibility. One example of HA refusing to admit the obvious was his insistence that because of the way he positioned himself on the bed on the balcony, the girls would not be able to see what was on his computer screen even if they were sitting beside him. Eventually, he conceded that it would have been possible “if someone did actually peek.”

58When HA was asked if he spent a lot of time on his balcony, HA’s initial answers were unresponsive to the straightforward question posed. I found HA’s answer to the question “did you pat the mattress to invite the kids to come up on the bed with you” to be evasive. The simple question, “did you like your neighbours” elicited a series of non-responsive answers. As a final example, I have already referred to HA’s testimony in relation to his description of the children wrestling with him. After a lengthy exchange with Crown counsel, HA put forward the proposition that what he really meant was “wrestle off.” I do not believe HA or his explanation given that it was HA who first used the word “wrestling” and the phrase “they wrestle me down on the bed.”

59I wish to make it clear that my conclusion regarding the credibility of aspects of HA’s evidence is not based on the evidence at trial regarding the incident close to the school grounds or HA’s proposal that the two apartments be merged. HA provided an explanation of his conduct and certainly, with respect to the proposed merger of the apartments, LD and DM agreed that the issue was discussed with them.

60I am, however, entitled to accept some, none, or all of a witness’ evidence. For the reasons stated, I conclude that I do not believe significant aspects of HA’s evidence, including his denial of the allegations made by LDM. I find that HA lacks credibility because his evidence contained inconsistencies, his evidence was, in certain respects, untruthful or implausible, and, in some respects, his evidence was contradicted by the testimony of other witnesses. At times, HA refused to admit the obvious and he was unresponsive in his answers, further damaging his credibility.

61I turn then to consider the credibility and the reliability of LDM’s evidence.

Assessment of LDM’s evidence

62The defence advanced several arguments in support of the position that LDM’s evidence was not credible. Counsel submitted that LDM’s advancement of a false narrative surrounding the barbecue should cause the court to lose all confidence in her allegations regarding the tent and the balcony.

63I reject this argument. At no time did LDM assert that anything occurred at the barbecue. She was clear in her testimony that HA “did not touch me on that day.” On cross-examination she affirmed that there was no touching at the barbecue. The defence argument is premised entirely on the testimony of LD, LDM’s mother, who became extremely upset upon hearing the disclosure. LD’s evidence surrounding the disclosure was unreliable. Her memory had to be refreshed on the issue of whether the touching occurred over or under the clothing. LD’s evidence that LDM’s younger sister disclosed first was contradicted by DM, who confirmed LDM’s testimony that she disclosed first. I found DM to be clear and forthright in the manner in which he gave his evidence. LD’s confusion in no way affects the credibility of LDM’s evidence.

64With respect to the incident in the tent, the defence submits that LDM was contradicted by witnesses on the two points key to her allegation: that the touching happened under her dress and that the touching happened under a blanket. In her testimony, LDM stated more than once that she was wearing a dress on the day of the tent incident. In addition to HA’s testimony, the defence relies on LD’s evidence that LDM was wearing pants that day. On cross-examination, LD described LDM ripping her pants that day when she was sliding on the cement structure. However, LD’s evidence in chief was far less certain as to which day and which child, although the how remained the same: “One of their pants ripped” and “I believe it was that day...but I didn’t notice.” On this issue, I prefer the clear and consistent evidence of LDM to that of LD. I find that LDM was wearing a dress on the day of the incident in the tent.

65The second point on which LDM’s allegation regarding the tent incident rests is the presence of a blanket in the tent. In addition to HA’s testimony, the defence relies on M’s statement that there were “no blankets.” I agree with the Crown that M’s statement, “no blankets”, was not responsive to the question that had been posed to him. Of more significance, however, is the fact that M, on re-examination, stated that the mats that were kind of like a blanket felt like a sleeping bag, and were almost as big as the wall. M’s observation regarding the size of the item corroborates LDM’s testimony that there was a blanket big enough that it covered all of them when they were lying down, resting. M was also clear that they had a rest in the tent – he testified that it was HA’s idea – further corroborating LDM’s testimony. I find that there was a blanket in the tent on the day of the incident.

66The defence also points to LDM’s statement that she thought if she told her parents about what had happened, her “real dad” would come back. Her father was in the process of moving out of the apartment building and she did not want her parents to split up. HA had just come up to her parents on his e-bike and talked to them briefly. It is understandable why, in the circumstances, a nine-year old child would choose that moment to make disclosure to her parents. This is not a factor that undermines LDM’s credibility.

67The defence suggests that the issue of who disclosed first – LDM or her sister – resulted in an “inadvertent tainting problem” that adversely impacted the reliability of LDM’s testimony. I disagree. I have already explained why LD’s evidence regarding the order of disclosure is not reliable and why I prefer DM’s evidence on this issue. I find that LDM disclosed first to her parents.

68It was evident that testifying at trial was a strain for LDM. Despite this, she was clear and consistent in the core of allegations: that HA rubbed her in her vaginal area underneath her dress and underwear, underneath a blanket in the tent, and that HA rubbed her in her vaginal area, again under a blanket, when she was sitting beside him on the bed on the balcony of his apartment. She was not shaken in her evidence during a thorough and exacting cross-examination. When it was put to her that the sexual touching never happened, she was firm and clear, responding, “I would never make a false accusation of something like that.”

69LDM’s testimony of the surrounding circumstances was, to some degree, corroborated by the evidence of other witnesses. I have made findings that there was a blanket in the tent and that LDM was wearing a dress on the day of the tent incident. M corroborated LDM’s testimony that they laid down and had a rest in the tent. That there was a bed on the balcony is not in dispute. LDM’s evidence that there were blankets on the bed and that she sat on the bed beside HA was corroborated by several witnesses, including HA.

70LDM was not given to any exaggeration against HA. She readily acknowledged positive aspects of HA’s character and behaviour: he let them eat at his apartment, he complimented LDM and her sister, and he let them play games at the apartment.

71There were no significant inconsistencies in LDM’s evidence. The defence pointed to the apparent conflict between LDM and her father regarding what has been referred to as “the good touch, bad touch discussion”, with LDM testifying that the discussion took place on a walk back from Tim Horton’s and DM maintaining that it did not happen at all because people were all around. The defence went beyond suggesting that LDM was mistaken and advanced the argument that LDM had made up the fact that the discussion took place. I make no such finding. Either DM or LDM may have been mistaken as to the when or where of the discussion. At its highest, this is a peripheral contradiction that does not go to the core of her allegations against HA and does not adversely impact LDM’s credibility.

72For these reasons, I find LDM to be a reliable and a credible witness. I accept her evidence as to the incidents in the tent and on the balcony as she described in her testimony.

73I consider next whether the Crown has proved each of the offences beyond a reasonable doubt.

The Charge of Sexual Interference

74Based on the evidence that I accept, I find that in the summer of 2018, while the children were resting in HA’s tent, which was set up on the apartment grounds, HA touched LDM with his hand in her vaginal area under her dress and underwear. HA touched LDM in this manner while she was resting under a blanket in the tent. I further find that on more than one occasion, HA touched LDM in her vaginal area over her clothing, with HA’s hand hidden by a blanket, while LDM was sitting beside HA on the bed on his apartment balcony. LDM was nine years old when these incidents occurred.

75I find that HA intentionally touched LDM’s vaginal area; there is no basis upon which I could conclude that the touching was accidental.

76I further find that the Crown has proved beyond a reasonable doubt that HA had the specific intention to touch LDM for a sexual purpose. The sexual purpose may be proven either by direct evidence or it may be inferred from circumstantial evidence or from the nature of the touching itself: R. v. Morrisey, 2011 ABCA 150, at para. 21. HA touched LDM in her vaginal area. He touched her while his hand was concealed by a blanket. LDM described HA using his hand to rub her “private area” back and forth when they were in the tent. When they were on the balcony, HA touched LDM in the “front of her privates” using “a stroking motion.” This evidence, which I accept, is only consistent with a sexual purpose. I infer that HA had a sexual purpose in touching LDM’s vaginal area with his hand. I am left with no reasonable doubt as to HA’s specific intent.

77I therefore find the Crown has proved the charge of sexual interference.

The Charge of Sexual Assault

78I have already found that HA deliberately touched LDM in her vaginal area. I further find that the assault had a sexual nature based on how a reasonable person would perceive it. Any objective observer would consider HA’s intentional placement of his hand on LDM’s vaginal area – either over or under her clothing – to be touching of a sexual nature. This element of the offence of sexual assault has been proved beyond a reasonable doubt.

79I find that the Crown has proved the charge of sexual assault.

Disposition

80For these reasons, I find HA guilty on both counts.

Justice R. Ryan Bell

Released orally: October 15, 2021

Released in writing: October 18, 2021

COURT FILE NO.: CR-18-5131

DATE: 2021/10/18

SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER PURSUANT TO S. 486.4 OF THE CRIMINAL CODE HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTItY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, INcLUDING THE NAMES OF OTHER CROWN WITNESSES, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY.