Publication Ban Warning

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18 .

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

Court File and Parties

COURT FILE NO.: CR-20-1200 DATE: 2023-03-15

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – D.C. Defendant

Counsel: L. Wannamaker, for the Crown D. Barrison, for the Defendant

HEARD: March 13, 14, 15, 2023

Judge: VERNER j.

REASONS FOR JUDGMENT

[1] D.C. stands charged with one count of sexual interference in relation to an allegation of a single assault against his stepson, J.R., who was 10 years old at the time. J.R. was the only witness at trial. On consent of the defence, he testified on a promise to tell the truth, via Zoom with a support worker in the room with him. The two video statements he provided to police within a couple of months of the alleged touching were entered as part of his evidence in chief.

[2] J.R. is now 13 years old and I keep this in mind as I write this decision.

J.R.’s Allegations

[3] J.R. has two younger siblings and the three of them live with their mother. J.R.’s biological father has not lived with them since he was young. Up until early 2020, his stepfather, D.C., lived with the family. D.C. moved out and then prior to February 15, 2020, J.R.’s mother’s new boyfriend, James, moved in.

[4] On February 15, 2020, J.R. provided a statement to police. He said that one or two months earlier, D.C. had called J.R. down to the living room one night, asked J.R. to pull down his pants, sat J.R. on his lap and then put his penis in J.R.’s “butt”. After the assault, J.R. went upstairs. J.R. not only told police about the assault in 2020, but repeated the same version of events when he testified this week via Zoom.

The Legal Threshold

[5] If D.C. did what J.R. described, D.C. committed a serious crime. Therefore, if I am satisfied beyond a reasonable doubt, based on J.R.’s testimony, that D.C. touched J.R. with his penis, I will find him guilty of the offence and sentence him accordingly. In order for me to be satisfied beyond a reasonable doubt, it is not enough for me to find that D.C. probably touched J.R. inappropriately. Probably is not enough to meet the test of proof beyond a reasonable doubt. On the other hand, I do not have to be absolutely certain that D.C. did it in order to find him guilty. In fact, it would be impossible to prove that D.C. did it to an absolute certainty without something to corroborate J.R.’s story.

[6] Although the Crown, Ms. Wannamaker, does not have to prove the offence to an absolute certainty, the burden on her is much closer to absolute certainty than it is to a probability. (R. v. Starr, 2000 SCC 40 at para. 242). In other words, I have to be sure that D.C. did it. If I cannot say I am sure he did it, I must find him not guilty.

[7] In assessing whether I am sure, I will keep in mind that J.R. was a child when he was allegedly touched by D.C., a child when he gave his statements to police and is still a child today. Children often see the world differently and often do not remember details the same way that adults remember them (R. v. W.R., 1992 SCC 56, [1992] 2 S.C.R. 122, R. v. G.B., 1990 SCC 7308, [1990] 2 S.C.R. 30). Therefore, even if J.R. does not remember details of where, when and how things happened, that does not mean that D.C. did not touch him as he has described. I must consider J.R.’s testimony as a whole as coming through the lens of a child.

Analysis

[8] The question for me to answer therefore is whether I am sure that D.C. touched J.R. inappropriately, based on J.R.’s testimony, keeping in mind J.R. is a child.

[9] Based on the way J.R. spoke and presented himself, I found him believable. He seemed like he was telling the truth on the video statements and in court. He did not appear to be making up a story. He appeared to be focused on answering the questions rather than trying to keep a story straight. He got emotional and needed breaks when he was being asked uncomfortable questions and he asked when he did not understand the question being asked of him. Although he was unable to remember many details, he was very sure and very clear that he had been touched inappropriately.

[10] I further note that a couple of his answers revealed that in some ways, J.R. is wise beyond his years. When asked why he was unable to answer one of the questions the police put to him, that he should have been able to answer, he explained simply to the court, “I was 10”. And when he was asked at the preliminary hearing if he felt pain the next day, he said “not physically ”. These answers are answers I would expect of an adult. They have some insight I would not expect from a 13-year-old boy. In general, J.R. was a brave 10-year-old boy in the videos, a brave 13-year-old boy in court and overall, he came across as being truthful.

[11] Having said that, J.R. appeared to be telling the truth. Some people are simply good liars. And some people who believe they have been harmed, have unreliable memories. For example, if J.R. had a realistic and lifelike dream that D.C. touched him in appropriately, he may believe that he was touched by D.C. when in fact it never happened. Since some people are good liars and since sometimes people have unreliable memories, I am not allowed to rely heavily on how a witness speaks and presents themselves in determining whether what they say is true. I have to look for other strengths in their evidence.

[12] J.R. remembers that one night in late 2019 or early 2020, when he was playing games on his phone, D.C. called him down to the living room, where D.C. was sitting down and waiting for him. D.C. told J.R. to pull down his pants. After J.R.’s pants were down, D.C. put J.R. on his lap and put his penis in J.R.’s butt. J.R. then went back up to his room. He was pretty sure that he texted his mother that his butt hurt that evening. He was consistent in his evidence regarding these details.

[13] Unfortunately, J.R. admittedly has a bad memory and has not been consistently confident with respect to any other detail.

[14] He did not tell police or the court what the family had been doing earlier on the day or the evening in question. He could not say what time of night D.C. called him down, but believes that it must have been after his mother and siblings went to sleep. He could not remember how D.C. called him down to the living room, whether D.C. verbally yelled at J.R. to come down or whether D.C. texted J.R., but believes that D.C. must have texted him, since yelling would have woken up his family members. He could not remember what he was wearing or what D.C. was wearing. He did not know how he got onto D.C.’s lap. He did not know how long the assault lasted. He did not say whether D.C. had any difficulty in committing the assault. When he was specifically asked at trial if he remembered any in-and-out movement, he agreed that he did, but he had not provided this detail in any earlier statements. Unfortunately, his description of the assault lacked any real detail.

[15] I recognize that J.R. was very uncomfortable and did not want to provide detail about the assault. In the circumstances, I do not take the lack of detail to be a weakness with J.R.’s evidence. The lack of detail is not evidence that he is lying or that his memory is unreliable. However, the lack of detail makes it difficult to assess whether he is telling the truth and whether his memory is reliable.

[16] I also recognize that there were some inconsistencies with his evidence. For example, he was inconsistent as to whether he could remember when it happened. When he was asked at the beginning of the February 2020 statement if the incident happened in summer or winter, he was unsure. However, he later became confident that it happened one to two months prior to giving that February statement and by the time he got to trial, he was confident that it had happened in December 2019.

[17] J.R. was also inconsistent in his statements as to whether he or D.C. pulled his pants down, whether his underwear was taken off, whether he saw D.C. stand up and whether he saw D.C. remove his own pants and underwear.

[18] Although he was somewhat consistent with respect to the pain, his evidence also changed subtly on this issue. When the police officer asked in February 2020 if the assault “hurt”, he was careful to say he was “pretty sure” that it hurt. At the preliminary hearing, he testified that it hurt for half an hour, such that he had no pain when he woke up the next morning. Whereas at trial, he testified that he was in pain for a day.

[19] Finally, I note the lack of text messages. J.R. seemed fairly confident that D.C. had summonsed him to the living room by way of a text message and confident that he had sent his mother a text that evening after the assault. He told police that he did not delete messages often and, although he testified that it was possible that D.C. deleted the messages from him phone, he seemed confident during the police interviews and in cross-examination at trial that the texts should have been on his phone when he gave it to the police. The fact the texts were not found on the phone by a forensic analyst is somewhat troubling. Although, to be clear, I understand that the texts may have been deleted in such a way that the forensic analyst was unable to recover them.

Conclusion

[20] Before I conclude, I would like to restate that J.R. has been very brave throughout these proceedings. It is not an easy task for adults to go through this process and J.R., at 13 years old, has handled himself better than many adults who have been in the same position as him.

[21] Based on how J.R. spoke and presented himself, I believe him. However, I do not know if I believe him because he was in fact inappropriately touched by D.C., because he is a good liar or because he had a realistic dream that he was touched by D.C. and now mistakenly believes that he was. Although J.R. was consistent on the key facts and came across as believable, that is not necessarily enough to meet the high threshold that is put on the Crown in criminal cases. Considering that there were so few details provided, yet several inconsistencies on the few details J.R. could provide, as well as a complete lack of corroboration, I simply cannot be sure that J.R. was inappropriately touched as alleged.

[22] I am left with a reasonable doubt and I find D.C. not guilty on the one count before me.

Released: March 15, 2023 The Honourable Madam Justice C. Verner