R. v. Paradis, 2022 ONSC 2228

R. v. A.P., 2022 ONSC 2228

COURT FILE NO.: CR-20-1184

DATE: 2022-04-22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

A.P.

Accused

K. Whillans, for the Crown

S. Farrell, for the Accused

HEARD: March 21-25, 2022

REASONS FOR JUDGMENT

CORNELL J. (orally)

Introduction

1A.P. is alleged to have committed a sexual assault on S.R. and that he did touch S.R. for a sexual purpose with his hand. In accordance with the reasons that follow, I find the accused not guilty of both charges.

Background

2T.Z. is S.R.’s mother. She went to high school with A.P.

3When S.R. was approximately eight years of age, A.P. babysat him. After that, S.R. began to visit at A.P.’s home in order to spend time with A.P.’s son, B., and his daughter, T.

4Over time, S.R. came to view A.P. as a father figure and he began to spend as much time as possible at A.P.’s home. Overnight visits began and became frequent.

5S.R. and A.P. began to share a bed for reasons that will be later detailed. S.R. alleges that “more than once, more than twice”, A.P.’s left hand touched his penis over his underwear while they were in bed at night.

6S.R. also alleges that A.P. would provide him with a massage from time to time. During the course of some of these massages, S.R. alleges that the back of A.P.’s hand grazed his penis.

7There was a further suggestion by the Crown that A.P. committed a sexual assault upon S.R. when he assisted S.R. to shower and more particularly, when A.P. would assist S.R. in washing his hair. For reasons that will be later detailed, I have concluded that the shower assistance provided did not constitute a sexual assault.

The Issues

8I must determine whether or not the touching that is alleged to have occurred while the parties were sleeping together and while the massages were being provided was intentional and, if so, was such touching for a sexual purpose.

Review of the Evidence

9When S.R. began to visit A.P., A.P. resided in a home in Hagar. The family then moved and spent about six months in Markstay. A.P. and his family then moved to St. Charles.

10Each of these homes were modest residences that had three bedrooms. B. and T. were each given their own bedroom. A.P.’s friend, Darryl, lived with A.P.’s family during the period of time in question. Beyond that, there were a number of other people who shared A.P.’s residence for extended periods of time including members of A.P.’s family and various friends. The evidence makes it clear that for each of the three residences, it was a full house.

11S.R. and A.P.’s relationship became so close that according to S.R., he wanted to spend as much time as possible at A.P.’s home. The visits progressed from occasional weekends to most weekends, to every weekend and then, in addition, to nights during the course of the week. S.R.’s mother was supportive of this arrangement as she knew that A.P. had become a father figure and she was grateful that they could do “guy things together like fix cars” and go camping. She knew that A.P. called S.R. “my boy” and that S.R. often referred to A.P. as “Dad”.

12When S.R. was asked about his relationship with A.P., he said that “he supported me emotionally. He was easy to talk to. He would listen to me and not judge. He gave good advice; he was there all the time. He was someone I could trust!”

13As S.R. began to spend more time at A.P.’s home, it eventually came to pass that he would sleep over at A.P.’s residence. According to S.R.’s evidence, “for the longest time” S.R. slept on a trundle bed in B.’s room. At a later point in time, S.R. said that there was a gathering which took place “a good while after he met A.P.”. As a result of this gathering, S.R. began to share a bed with A.P.

14During the time that this arrangement began, S.R.’s mother testified that A.P. discussed the sleeping arrangements with her and that she agreed that in the circumstances, it was fine for “S. to crash with him”.

15By all accounts, the relationship between A.P. and S.R. was very good. Abruptly, it changed. The change took place when S.R. was 13 or 14 years of age. S.R. simply ended the relationship. A.P. made a number of telephone calls and texts as he was quite worried about what had happened. No explanation was provided to A.P. and according to A.P., even at the time that he testified at the trial, he did not understand why the relationship had ended.

Nighttime Touching

16S.R. said that the touching only took place at the St. Charles residence from the time that he was 11 until 13 years of age.

17S.R. said that he had a recurring memory when he awoke to find A.P. touching his penis over his underwear. Initially, S.R. said that it involved “just touching, not stroking”.

18At the time that the touching is alleged to have occurred, S.R. said that he was sleeping on his right side on the edge of the bed. A.P. was “spooning me”. Despite saying that they were spooning, S.R. later said that their bodies were not touching.

19S.R. was aware that A.P.’s left arm was over his body and his left hand was touching him over his underwear in the area of his penis. He said that he pretended to sleep because he was “kinda scared”.

20Despite initially saying that A.P.’s hand was “just touching” his penis over his underwear, he went on to provide different descriptions. He said it was “almost like grabbing”. A.P. had “my whole junk in his hand”. He went on to say that A.P. had his hand between my legs and was moving his hands in a grabbing motion. He then went on to say that A.P. was “rubbing my dick, my penis, sorry”. He provided these details despite earlier saying that A.P. did not grab his penis.

21At the preliminary hearing, S.R. said that this happened on six occasions. At trial, he initially said that he didn’t know the number of times that it had occurred. He then went on to say that this was “not a frequent thing, it happened more than once, more than twice”. S.R. said he had a memory of a scenario. It had all become one memory. It was the same scenario over and over.

22Initially, S.R. said that the touching went on for five or ten minutes or longer. When questioned about this during the course of cross-examination, he changed his evidence to say that the touching was for a moment, and then changed his evidence to say that it happened for minutes.

23S.R. said that after the touching stopped, he simply fell back asleep.

24S.R. said that the touching took place in a bedroom that was “pitch black”. He said that A.P.’s body was never touching his body during these incidents. S.R. said that A.P.’s penis never touched him and that in fact, he has never seen A.P.’s penis. S.R. said that during the time in question, neither he nor A.P. moved. There was no conversation. There were no noises.

25S.R. conceded that at the time that the touching took place, it was possible that A.P. was asleep. S.R. went on to concede that if A.P. was asleep when the touching took place, it would have been an accident.

26S.R. said that he slept with A.P. “thousands of times”. He went on to say that despite the significant number of times that they slept together, the touching “did not happen often”. S.R. said that it would be months or even a year between incidents.

27A.P. testified. He said that he would only share a bed with S.R. when there was nowhere else for S.R. to sleep. He said that T.Z. was aware of the fact that they shared a bed and pointed to the fact that this occurred on three or four occasions when he was staying at T.Z.’s residence.

28A.P. pointed to the fact that initially, S.R. slept on a trundle bed in B.’s room. S.R. acknowledged that he slept on the trundle bed for many months. Apparently the trundle bed got moved to A.P.’s daughter’s room and was no longer available for use by S.R. It was at that point in time that S.R. and A.P. began to share a bed because there was nowhere else for S.R. to sleep given the number of bedrooms and the number of people who were occupying A.P.’s residence from time to time. At a later point in time, A.P. acquired a futon mattress. After doing so, S.R. slept on the futon mattress on the floor in B.’s room. At some later point in time, A.P. and S.R. constructed elevated bunk beds in B.’s room as a birthday present for B. The futon mattress was placed on the bunk that S.R. began to use. According to A.P., he and S.R. never slept together again after the futon mattress was acquired. This evidence was not contradicted by S.R.

29There was no effort to hide the sleeping arrangements between A.P. and S.R. S.R.’s mother was aware of them, although the evidence indicates that at some point in time, she expressed concerns. Although the evidence about dates is somewhat unclear, the use of the futon mattress and elevated bunk beds appears to coincide with T.Z.’s expression of concern about the sleeping arrangements.

30Given the number of family and friends who lived with A.P. and his children, the evidence makes it clear that at any given point in time, some five to ten people knew about the sleeping arrangements.

31A.P. denied that he ever intentionally “spooned” with S.R. while they shared a bed. A.P. said that while sleeping with S.R., both of them would move from time to time with the result that occasionally, they would touch each other. He recounted one incident where S.R. slapped him in the face while asleep while they were sharing a bed.

32A.P. denied ever having his arm over S.R. He denied touching S.R. in the genital region. He denied touching S.R. at all while they were asleep.

33A.P. did concede that it was possible that he may have touched S.R. in the genital region, but if he did so, it took place while he was sleeping as he had no memory of that ever occurring.

Massages

34At the time in question, S.R. played competitive lacrosse and hockey. These sports involved full contact. S.R. said that he would frequently be injured as a result of this contact. This was confirmed by both A.B. and T.Z. T.Z. said that Tiger Balm was used by S.R. to treat these injuries.

35S.R. said that it initially was his idea to have A.P. give him a massage. A.P. agreed that S.R. made the initial request and then asked for massages thereafter on ten occasions or more. Both parties agreed that at some point in time, A.P. would ask S.R. if he wanted a massage. S.R. said that he always answered yes because he was concerned that if he said no, he would be ignored or treated differently. S.R. never said no so it is not clear how he came to this conclusion.

36S.R. said that the massages always took place in the bedroom before bed. A.P. said that there were a number of times when he would massage S.R. in the living room in the presence of other people.

37S.R. said that he was wearing boxer briefs when he received a massage.

38According to S.R., he would lie on his back on the bed. A.P. would straddle him in the area of S.R.’s knees. A.P. would be holding himself up and taking most of his own weight. A.P would pull S.R.’s underwear down to where one-half to all of the S.R.’s penis was exposed.

39S.R. testified that A.P. would then begin to massage his inner thighs at which time the back of A.P.’s hand would graze his penis. S.R. said the contact was brief. He went on to say that A.P. never touched his groin or testicles during a massage. He does not remember the number of times that he received a massage. He does not have any memory of when the last massage took place. He said that when A.P. was massaging his inner thighs, A.P.’s hands were facing down and the back of his hands brushed his penis, but not his testicles.

40At the time that that grazing or brushing took place, S.R. thought that it was an accident. After viewing the movie Abducted in Plain Sight, he changed his opinion and concluded that it was intentional. At this point, S.R. said “at the time, I did not believe that it (the grazing) was bad because I thought that it was an accident”.

41S.R. testified that the grazing involved only brief contact. He elaborated by saying that A.P. “did not keep touching, it was a momentary touching, quick”.

42S.R. said that it was “pitch black” when he received a massage in the bedroom.

43According to S.R., A.P. never touched his own penis during a massage, never asked S.R. to touch him, never made any sexual comments of any kind, never used any lotion or lubricant and at no point in time did A.P.’s fingers touch S.R.’s penis.

44A.P. testified that when he gave S.R. a massage in the bedroom, he would sit beside him on the bed. He said that he never straddled S.R. during the course of a massage. He said that he never lowered S.R.’s underwear to expose his penis. Instead, he pushed S.R.’s underwear up to the area of the mid-thigh and in so doing, S.R.’s genitals were never exposed. The massage would last for five or ten minutes. They would talk to each other about daily events. When asked if it was possible that he may have grazed S.R.’s penis during one of these massages, he admitted to the possibility, but went on to say that he had no memory of that ever occurring.

Showers

45There was a shower in the basement of the St. Charles residence. It had a mirrored door and frosted glass sides.

46According to both S.R. and A.P., the routine was the same. A.P. would adjust the water temperature. S.R. would disrobe. A.P. would take the clothing and leave the bathroom. When S.R. called for him, A.P. would re-enter the bathroom, apply shampoo and scrub S.R.’s hair. S.R. would rinse the shampoo off. A.P. would give S.R. a towel and he would leave the room while S.R. dried off and got dressed.

47According to S.R., this was necessary because he had dry hair and some people had commented about this. S.R.’s mother testified that after S.R. hit puberty, a problem developed with him having greasy dirty hair. She talked to A.P. about this and enlisted him to “assist with a good scrub once in a while”.

The Disclosure

48A.B. is a close family friend of T.Z.

49She testified that when S.R. was about 8 or 9 years of age, A.P. would babysit him. She said that the relationship involved “dirt bikes and quads”. S.R. had fun when he spent time with A.P. and the relationship was very good. When S.R. was 13 or 14 years old, she became aware that S.R. was avoiding A.P. She was aware that A.P. had made “40 phone calls” in an effort to contact S.R. At this time, she observed S.R. to become standoffish, moody, and closed off. She observed his moods to be fluctuating between highs and lows. This was around the time of S.R.’s birthday on April 8 when he was 13 or 14 years of age. Around that time, a conversation took place between S.R. and A.B. in the garage at T.Z.’s home. The subject involved “inappropriate contact”. The following day A.B. shared this information with T.Z. and shortly thereafter the police were called.

50During the disclosure conversation that took place in the garage, S.R. described the touching as a “graze”. He told A.B. that it seemed like an accidental touching or maybe he dreamed it. A.B. said that because S.R. was unsure, he asked her if he could take a lie detector test to see if he was “lying to himself’. A.B. then told S.R. that “they don’t do that” and “you just need to tell your story”.

51The hearsay portions of this evidence are not being relied upon to prove the truth of such statements. As will be later detailed when I review the evidence of S.R., he admitted to expressing a desire to take a lie detector or polygraph test to see if see if he was lying to himself.

52A.B. told us that she and some family members watched a documentary or movie by the name of “Abducted in Plain Sight”, a movie where a man befriends an entire family and then proceeds to sexually assault a teenage girl. A.B. described the movie as “very graphic”. The content was so distributing that she did not allow her girls to view it. Although rated “TV 14” A.B. felt that given the graphic details depicted in the movie, it should have been rated 18+. A.B. acknowledged that the movie contained a warning that such movie contained mature content and may not be suitable for teenage children.

53Despite these warnings, and despite concluding that it would not be appropriate for her children to view the movie, A.B. allowed S.R. to do so. He was 13 years of age at that time. A.B. said that the movie had a “huge impact” on S.R. S.R. said that he came to view things differently after he viewed the movie.

Analysis

Nighttime Touching

54This is not a case where the sleeping arrangements were secretive or clandestine. The fact that A.P. and S.R. shared a bed was known to a great many people including S.R.’s mother, T.Z. I accept the evidence offered by A.P. that he only slept with S.R. when there were no other options available.

55At one point in time, T.Z. did express concerns about the sleeping arrangements. Although I cannot be certain of this, from the evidence available to me, it appears that this concern was raised around the same time that S.R. began to sleep on the futon and then on the elevated bunk in B.’s bedroom.

56S.R. conceded that he now had a poor memory of events given the passage of time. S.R. was quite young at the time that these events occurred. I am mindful of the fact that special consideration must be given to witnesses who are recounting events from their childhood. Be that as it may, the fact remains that S.R. was unable to remember a great many things. He was unable to remember the number of times that these touchings took place as previously detailed. He was unable to remember the conversation that he had with A.B. when he disclosed the events in question for the first time, apart from remembering he asked her if he could take a polygraph test. He was unable to recall meeting with the police on one occasion to provide additional information. The memory that he did have of the events in question had become one memory, one scenario.

57Up to a certain point, S.R. believed that he may have dreamed that this had occurred or that if it had occurred, that it was an accident as A.P. was asleep at the time of the touching. Such innocent explanations may be the reason why S.R. continued to share a bed with A.P.

58According to S.R., he and A.P. shared a bed “thousands of times”. Despite this, S.R. said that the touching that took place was “very rare” as previously detailed. When asked why he changed his perspective, S.R. said that he did so because such touching could not have been an accident given the number of times that it took place. This is certainly open to question. Accidental touching is also a possibility given the number of times that S.R. and A.P. shared a bed and the fact that such touching occurred “rarely” according to S.R.

59There is another explanation about how S.R. came to view events. S.R. said that his perception of events changed after he watched Abducted in Plain Sight. Before watching the movie, S.R. said that he believed the touching was an accident. After watching the movie, he changed his opinion. Despite the fact that his perception had changed, he was still not sure about what really happened as he acknowledged he wanted to take a polygraph test to see if he was “lying to himself”.

60The bedroom was pitch black when they shared a bed. S.R. conceded that A.P. may have been asleep when the touching took place. He conceded that if A.P. was asleep when the touching took place, it would have been an accident.

Massages

61S.R. acknowledged that he made the initial request for a massage and thereafter made subsequent requests. On other occasions, he acknowledged that A.P. asked him if he wanted a massage and he said “yes” on each occasion. The evidence makes it clear that at no point in time did A.P. force a massage upon S.R.

62As judges, we constantly tell juries to use their good common sense. Judges are called upon to do the same thing. Among other things, we are also called upon to assess the plausibility or implausibility of evidence that is offered. I find the evidence offered by S.R. as to how A.P. conducted the massage to be implausible. If A.P. were straddling S.R. and had pulled S.R.’s underwear down, how would it have been possible for A.P. to access S.R.’s inner thigh? S.R.’s evidence becomes even more problematic when he says that A.P.’s hands were “facing down” (which I presume to mean A.P.’s hands were facing down towards S.R.’s feet) such that the back of A.P.’s hands never touched S.R.’s groin or testicles and his fingers never touched S.R.’s penis.

63By both accounts, the bedroom was pitch black. The contact of the back of A.P.’s hand against S.R.’s penis was described as “fleeting, a graze, momentary touching, quick”.

64At the time the touching took place, S.R. said that he did not think it was “bad” because he thought it was an accident. As with the nighttime touching, S.R.’s perception and his opinion changed after he saw Abducted in Plain Sight.

65A.P. said that at the time that he gave a massage in the bedroom, he sat on the edge of the bed. He said that he pushed S.R.’s underwear up to mid-thigh and then proceeded to massage S.R.’s legs. I accept A.P.’s evidence on this point. In doing so, I find as a fact that if any such contact did take place during the course of the massage, that such incidental contact was not intentional and not for a sexual purpose.

Showers

66The Crown asserted that A.P.’s conduct in assisting S.R. in the shower amounted in and of itself to a sexual assault. The Crown also asserted that such conduct amounted to grooming.

67A.P.’s shower assistance was neither of those things. The assistance that was provided by A.P. in those circumstances amounted to addressing the needs of a newly pubescent boy with an identified problem, assistance that was provided to S.R. in accordance with the request that had been made by his mother.

68The assistance that was provided by A.P. was not clandestine or secretive. The assistance was provided when S.R. called out to A.P., a fact that was known by other occupants in the house. There were no sexual suggestions or sexual conversations of any nature that took place during the course of the shower assistance, or, according to the evidence, at any other point in time. There was nothing of a sexual nature that took place during the course of the shower assistance.

Conclusion

69I accept the evidence of A.P. that if any touching did take place during the time that he and S.R. shared a bed, that such touching took place while A.P. was asleep, was accidental and that there was no intention by A.P. to touch S.R. for a sexual purpose.

70I accept the evidence of A.P. that when he massaged S.R., he did not pull S.R.’s underwear down to expose his penis and he did not touch S.R.’s penis during the course of the massage or at any other point in time for a sexual purpose.

71I find as a fact that the assistance provided by A.P. to S.R. during the course of S.R.’s showers did not constitute a sexual assault or grooming behavior.

72Having accepted the evidence of A.P., I find that he is not guilty of either charge. The charges are dismissed

The Honourable Mr. Justice R. Dan Cornell