Court File No.: CR 22-125 Date: 2024/03/19 Ontario Superior Court of Justice

Between: His Majesty the King – and – Corey Fulford, Accused

Counsel: Meiszko Wlodarczyk, for the Crown Dan Baker, for the Accused

Heard: February 13-14, 2024

Publication Restriction Notice

By court order made under subsection 486.4(1) of the Criminal Code, no information that could identify the person described in this judgment as the complainant may be published, broadcast, or transmitted in any manner. These reasons have been anonymized to permit their publication.

Ellies J.

Reasons for Decision at Trial

Overview

[1] Mr. Fulford is charged with sexual interference and sexual assault on a single complainant. The charges are alleged to have arisen out of events that took place in August 2016, when the complainant was 10 years old.

[2] Only two witnesses were called during the trial: the complainant and the accused. In addition to the testimony of the complainant, the Crown relies on a statement given by the accused to the police at the time of his arrest.

[3] For reasons I will explain, I do not accept all of the evidence of either witness. Nonetheless, I do accept the evidence of both witnesses that the accused kissed the complainant and “cuddled” her on his bed and the evidence of the complainant that the accused was aroused as he did so. For this reason, I find the accused guilty of sexual assault.

The Evidence

[4] I will begin with some background evidence with respect to which there is not much, if any, dispute. I will then move to a more detailed discussion about the evidence of each of witness.

Background

[5] When the complainant was about 10 years old, she and her sister were living one week with their father and one week with their mother. Not long before the offences are alleged to have occurred, their father moved into what I assume was a townhouse in a residential area in North Bay. The accused lived next door.

[6] The accused befriended the complainant's father shortly after the father moved in. According to the accused, he would go over to the complainant's house to “hang out” with the father. Sometimes he would watch television with the entire family, although he would be left alone with the girls at times while the father went downstairs to smoke marijuana.

[7] The accused also smoked, but mostly just cigarettes. He would often observe the complainant's family interacting while he was smoking outside of his mother's residence, where he lived.

[8] Although the witnesses differ on how it came to be, at some point on the day in question, they found themselves alone at the accused's residence after spending some time together outside. The accused was then and is now a “gamer”. At the time, he had a game installed on his computer called “Eurotruck Simulator II”. The game involved the use of both a steering wheel and pedals. For some reason left unexplained by the evidence, the complainant began to play the game. However, she was too small to use both the steering wheel and the pedals at the same time, so she sat on the accused's lap. She worked the steering wheel and he worked the pedals.

[9] The evidence of each witness about what happened during the video game and immediately afterwards differs materially. I will deal with the complainant's evidence first.

The Complainant's Evidence

[10] The complainant is now 18 years old. She suffers from some mental health challenges that began when she started to suffer from anxiety as a child.

[11] The complainant testified that on a day in August of 2015 or 2016, she and the accused spent time together on the basketball court at a nearby school. On their way back home, they stopped at a snack bar to get a poutine and brought their food to the accused's house to eat. When they finished eating, they went up to the accused's bedroom to play his video game.

[12] The complainant testified that, as she was using the steering wheel, the accused had his hands on her lap or on her waist. She said that, about five to ten minutes after sitting on the accused's lap, she felt the accused's erect penis “poking [her] in the butt”. Because she felt uncomfortable, she got up. Her evidence about where she went next suffered from some frailties with which I will deal in detail in the analysis section of these reasons. For now, it is sufficient to state that she testified that, at some point after she got up, she went to sit on the accused's bed.

[13] The complainant's evidence is that the accused came to the bed, pushed her down onto it, and held her down by placing his hands on her wrists. She said that he tried to kiss her for three to five minutes, or maybe longer, but that she kept turning her head away so that the accused only managed to kiss her on the cheek.

[14] The complainant testified that the accused then started to put his hand down her shorts, but she squirmed and got away. According to her, there was a loud noise outside that attracted the accused's attention. He got up to see what the noise was and she could see that he still had an erection.

[15] Although the complainant was unsure whether she went to the bathroom at this point or earlier, she testified that, at some point after the accused tried to kiss her and put his hand down her shorts, she laid on the bed, curled up on her side. The accused joined her, putting one arm underneath her and the other on top of her. They lay there like that for about 15 minutes while the accused played a video game on his phone.

[16] According to the complainant, this “cuddling” or “spooning” ended when her sister knocked on the door to the accused's residence and the complainant went down to answer it. The accused also came down and went outside for a cigarette. The complainant testified that she then ran home.

The Accused's Evidence

[17] The accused was 21 years old at the time. He suffers from a learning disability for which he receives publicly funded financial and other assistance. Without meaning any disrespect, the accused's disability was obvious to me, both during the video recorded statement he gave to the police and during his testimony at trial.

[18] The accused testified that, on the day in question, he was alone at home. His mother had gone to eastern Canada with her fiancée. The complainant came to his home during the day and asked him if they could hang out or if he could look after her. The accused suggested they take their bikes and go somewhere, which they did. According to the accused, they biked to a playground not far away and played on the swings there for a while. When they were finished, they went back to the accused’s residence, where they had something to eat from the kitchen. After eating, they went up to the accused’s bedroom to play his video game.

[19] Like the complainant, the accused testified that the complainant was too small to operate the steering wheel and the pedals at the same time, so she sat on the accused’s lap. She operated the steering wheel while he operated the pedals. According to the accused, the coordination between the two of them did not work very well so they gave up on the game and went to his bed. There, they began cuddling as a “brother and sister” might. The accused said that his “lower parts” were touching the complainant’s back. His evidence was that he was not touching the complainant in any way that would be “uncomfortable” or “seem strange”. They stayed that way for at least a few minutes, until the complainant said she wanted to go home. He then went downstairs with the complainant and saw her out the door.

[20] The accused denied having an erection at any point during the time he spent with the complainant in his bedroom.

The Accused's Statement

[21] The complainant’s allegations did not come to the attention of the police until May 2021. On June 10, 2021, the police arrested the accused. While he was in police custody, the accused was interviewed by the investigating officer, Detective Constable Jackson. His interview was video and audio recorded and admitted into evidence following a voir dire: R. v. Fulford, 2024 ONSC 1436. On consent, the evidence from the voir dire was admitted into the trial.

Analysis

The Governing Legal Principles

[22] The parties agree on the governing legal principles.

[23] In a case like this where the accused testifies, he must be acquitted if, based on the whole of the evidence, I accept his evidence, where that evidence provides a defence. Even if I do not accept the accused’s evidence, if I am left with a reasonable doubt by it, then I must also acquit. Even if I am not left with a reasonable doubt by the evidence of the accused, he must be acquitted if, on the whole of the evidence that I do accept, I am left with a reasonable doubt about his guilt on the charges alleged: R. v. W. (D.), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397, at p. 409; R. v. Hoohing, 2007 ONCA 577, at para. 15.

[24] A trial is not a credibility contest. I am entitled to believe some, all, or none of a witness’s evidence: R. v. Hull, at para. 5; R. v. Tillekaratna, 124 C.C.C. (3d) 549, at para. 11; R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 10; R. v. Powell, 2021 ONCA 271, at para. 40.

[25] Finally, I bear in mind what McLachlin J. (as she then was) wrote in R. v. W.(R.), [1992] 2 S.C.R. 122, at p. 134, about cases like this one, in which both the complainant and the accused face the challenges I have outlined above:

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. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet, with regard to her evidence pertaining to events which occurred in her childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

The Principles Applied

[26] Having applied these principles, I am unable to accept all of the evidence of either the complainant or the accused in this case. To explain why, I will proceed chronologically through the events as they progressed from the accused’s desk to his bed and highlight the issues I have with the evidence of each witness about these events.

The Pillow

[27] The accused’s evidence at trial about what happened during the video game is contradicted in a significant way by the statement he made to the police. In the statement, he said he placed a pillow on his lap and that the complainant sat on the pillow. At trial, the accused said nothing about a pillow. When he was cross-examined about it, he said he did not remember there being a pillow.

[28] In my view, this contradiction is significant for two reasons.

[29] First, the accused's evidence at trial that there was no pillow makes the evidence of the complainant that she could feel the accused's erection plausible. It might be otherwise if there was a pillow between them, which is the second reason I find the accused's statement to the police about the pillow to be significant.

[30] There is no evidence, either in the accused's statement, the other evidence called during the voir dire, or at trial, to explain how the accused knew when he was arrested that the incident leading up to his arrest was the one that occurred in the bedroom at his home in 2016. At the time of his arrest, the accused was only told what the charges were and who the alleged victim was. He was not provided with any information about the details of the allegations. The accused also knew from a call his mother had placed to him in 2021 shortly before he was arrested that the complainant’s father had threatened to beat him up if he ever came around his home again. However, the accused testified at trial that he did not know why the complainant's father was mad at him.

[31] Therefore, the accused had no information from any outside source at the time of his arrest that the events of that day in August 2016 were the ones for which he was being arrested and yet, when asked near the beginning of the police interview if he knew what the events were that brought him into police custody, he immediately mentioned the events surrounding the video game. In my view, this is evidence of consciousness of guilt that belies the accused’s innocent explanation about the nature of his contact with the complainant on the day of the events in question.

[32] Importantly, the accused mentioned the pillow as soon as he began to tell the police about the events in the bedroom. Given the accused's evidence at trial that he has no recollection of there being a pillow between him and the complainant, I conclude that the accused told the police that there was a pillow to protect himself from the allegation that he had an erection while the complainant was on his lap, an allegation which had not yet been conveyed to him.

[33] I bear in mind that, if the accused wanted to be untruthful at trial, it would have been better for him to maintain that he had a pillow on his lap while testifying. However, because of the other contradictions between his statement and his testimony that I will come to, I am inclined to the view that the accused simply forgot that he had told the police that there was a pillow when he testified at trial.

[34] I accept the accused’s trial testimony that there was no pillow between him and the complainant while she was on his lap that day. For that reason, I also accept the complainant’s evidence that she could feel the accused’s erect penis as she sat there.

The Length of Time the Complainant Was on the Accused's Lap

[35] The accused’s evidence about the pillow is not the only contradictory evidence about this part of the events in the bedroom. The complainant testified at trial that she was on the accused’s lap for five to ten minutes before she felt the accused’s erection and that she got up “the moment” she felt it. However, in a statement the complainant gave to the police in May 2021, she told them that she just kept playing the video game after she felt the accused’s erect penis.

[36] I do not see this as a very significant contradiction in the evidence of a witness testifying to events that happened eight years ago, when she was only 10 years old. In either case, the complainant was on the accused's lap long enough to have felt his erect penis underneath her. However, in combination with some of the other inconsistencies in the complainant's evidence I will come to, this inconsistency is not meaningless.

The Kiss

[37] In his evidence-in-chief at trial, the accused also said nothing about a kiss. However, during cross-examination, he testified at first that he “possibly” kissed the complainant during the video game and, later, that he “probably” did. When confronted with his statement to the police, the accused testified that he did not remember kissing the complainant on the cheek and that he now believes he kissed her on the top of her head while she was on his lap.

[38] Again, the accused’s evidence is not the only conflicting evidence about the kiss. While the complainant testified at trial about only one kiss, she was confronted during cross-examination by her testimony at the preliminary inquiry, in which she testified that the accused kissed her “multiple times”. This is a significant inconsistency. Nonetheless, the complainant’s trial testimony is confirmed by the testimony of the accused, whom as I said, admitted that he probably kissed the complainant on one occasion while they were in the bedroom.

[39] I accept that the accused kissed the complainant on one occasion. However, I do not accept that the kiss happened while the complainant and the accused were playing the video game, or that the accused kissed the complainant on the top of her head. My reasons are twofold.

[40] First, the quality of the accused’s evidence at trial about this is significantly weakened by what he told the police. To the police, he said at first that, if he did kiss the complainant, he kissed her on the head. Later, he said that it was possible that he kissed her on the cheek.

[41] Second, and more importantly, it makes more sense to me that the accused would attempt to kiss the complainant while on the bed rather than while they were playing the video game. Both witnesses say that they were involved in coordinating the steering wheel with the pedals. The accused said that the coordination was not going well. I think it more likely that the accused was too busy trying to coordinate his use of the pedals with the complainant's use of the steering wheel to kiss the complainant on the head. The kiss would be out of place in that context. It would be more in context on the bed.

[42] I turn now to the evidence of what happened there.

The Fondling

[43] I am unable to accept the evidence of the complainant that the accused forcefully held her down by the wrists in the way she alleges or that he attempted to put his hand in her shorts. Unfortunately, my reasons are difficult to explain. As Bastarache and Abella J.J. wrote in R. c. Gagnon, [2006] 1 S.C.R. 262, 2006 SCC 17, at para. 20:

Assessing credibility is not a science. It is very difficult for a judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

[44] Some of my reasons for rejecting this part of the complainant's evidence have to do with the evidence itself. Others have to do with the demeanour of the complaint while she gave it. I will start with the complainant's demeanour.

[45] I watched the complainant quite closely as she gave her evidence. Except for those areas of her evidence that I have or will deal with in these reasons, I found her to be a good witness. However, there was a certain quality to those parts of her evidence that I accept that was absent from those parts that I do not accept. The complainant's evidence about what happened initially on the bed lacked the same quality as her evidence about what happened before and after it.

[46] More substantively, the complainant's evidence at trial about this aspect of the events that day was contradicted by what she said about them at the preliminary inquiry. At trial, she testified that the accused forcefully pushed her down onto the bed and held onto her wrists while trying to kiss her. She testified that she felt that she could not get up. At the preliminary inquiry, however, she testified that the accused “lightly” pushed her down onto the bed.

[47] The complainant's evidence at trial that the accused tried to kiss her while holding her down for three to five minutes, or possibly longer, and her evidence that the accused tried to put his hands down her shorts seems to me to be at odds with the rest of what both the complainant and the accused say happened that afternoon. On the complainant’s own evidence, the accused seemed as interested in playing video games as he was in her. The contact between the two of them before and after the alleged holding and attempted fondling is of a whole different character than the violent nature of what the complaint says happened in between.

[48] For these reasons, I reject the complainant's evidence about being held down and about the fondling. I accept that the complainant got off the accused’s lap and went to the bed because she grew uncomfortable feeling the accused’s erection. I also accept the evidence that the accused kissed the complaint against her will once while they were on the bed although, given her age at the time, whether she consented or not is irrelevant in law.

[49] I move now to the evidence about the cuddling.

The “Cuddling”

[50] Both witnesses testified that the accused “cuddled” with the complainant on the bed. However, they differ on what happened while they were cuddling.

[51] The complainant testified that the accused got behind her and put his arms around her, with one arm underneath her and the other arm on top of her. She said that he then played a video game on his phone for about 15 minutes.

[52] The accused, on the other hand, testified at first that he could not remember where his hands were while he was cuddling the complainant from behind, but that he was not watching or doing anything at the time. In cross-examination, he testified that his arms were at his sides and that his legs were straight out, rather than curling up with those of the complainant.

[53] I find the accused’s evidence about the cuddling to be unlikely. First of all, it would be very awkward for him to be lying the way he says he did. He says his chest was touching the complainant, which means that he was lying on his side, facing her. If so, one of his arms would have to be beneath his own body, which is uncomfortable. Moreover, it was unnecessary. On the evidence of the accused himself, the cuddling was a “brother-sister” thing. There is no reason for him not to put his arms around the complainant if that was the case.

[54] Although I am cognizant of the principle that I need not choose between the witnesses differing version of events, the complainant’s version here fits with the rest of the evidence. By his own admission, the accused is an avid gamer. He testified that gaming is practically the only thing he does while at home. He obviously wanted to be close to the complainant while they were in his bedroom. Because I accept that he tried unsuccessfully to kiss the complainant on the mouth before they began to cuddle, I find it most likely that the accused thereafter just wanted to be close to the complainant even if it meant he had to play a game while doing so, just the way he got close to her while playing a video game on the computer.

The Bathroom

[55] When she first gave her evidence at trial, the complainant testified that the video game portion of the events in question ended when she got up to go to the bed. She said that the fondling portion of the events ended when they heard a noise outside and the accused got up to see what it was. She testified that she then got up and ran to the bathroom. She said that when she came out, she laid down on the bed and curled up. That, she said, is when the accused laid down behind her.

[56] However, later in her examination-in-chief, the complainant testified that she went straight to the bathroom after sitting on the accused’s lap at the computer and that she sat on the side of the bed only after she came out of the bathroom. She said she did not believe she went to the washroom after the fondling incident, as she had testified earlier.

[57] Later still, she testified that she recalls only going to the bathroom at one point, but just not when.

[58] Bearing in mind what McLachlin J. had to say in W.(R.) about the frailties of an adult witness testifying about childhood events, I do not see this as a significant contradiction in the complainant’s evidence. I accept that the complainant went to the washroom once that afternoon. However, because I do not accept the complainant’s evidence about the attempted fondling, I believe that she went to the washroom after the video game incident and before the encounters on the bed. It makes more sense to me that, after resisting the accused’s attempt to kiss her on the mouth, the complainant curled up on the bed so as to avoid any further such attempts, rather than going to the washroom. It seems unlikely she would go to the washroom and then come back to the bed on when she had just been kissed against her will.

The Complainant’s Departure

[59] The complainant says she left when her sister came to the door. The accused says the complainant left when she asked to go home. Both say that the accused saw the complainant out the door.

[60] The complainant also says that the accused went outside for a cigarette when she was leaving to go home and that she could see that he still had an erection when he did.

[61] I accept the complainant’s evidence on this point. The accused testified that he was a smoker. He said that he would take breaks from gaming up in his room every one to two hours because he had scoliosis in his back. The complainant’s evidence fits with that of the accused in this respect. The complainant and the accused had been up in the accused’s bedroom for some time before the complainant left and it makes sense that the accused would want a cigarette by the time she did.

[62] This evidence of the complainant about the accused’s erection brings me to the very essence of my reasons for decision in this case.

Putting the Evidence in Context

[63] The evidence in this case is that, at best, the accused had a relatively new relationship with the complainant’s father at the time of the events in question. According to the complainant, the accused would come over to her house or they would go to a park perhaps as many as two times per week. According to the accused, the father would ask him from time to time to watch his daughters. There is no evidence that the accused was viewed by anyone, including the accused himself, as someone akin to a member of the complainant’s family. There is no evidence that the accused engaged in any activities with the family other than to watch television at their home occasionally and to go out with them on one occasion in the father's van.

[64] In light of this evidence, I find it unlikely that the accused’s interest in the complainant was as familial as he suggests. I believe he became aroused when the complainant was sitting on his lap and that he continued to be aroused while they were cuddling together. That, I have concluded, was the real reason he was cuddling with her in the first place.

Conclusion

[65] During final submissions, I asked the Crown whether the accused could be convicted of either sexual assault or sexual interference merely for becoming aroused after the complainant sat on his lap to play the video game. On behalf of the Crown, counsel responded that he could be convicted if I concluded that the accused kissed the complainant while she was seated there. For the reasons I have expressed earlier, I have not reached that conclusion.

[66] Even if it was possible to convict the accused of either offence for what I have found happened during the video game, I would not. There is no evidence that the accused intended to get sexually excited by having the complainant sit on his lap. The evidence of the complainant was that she could not reach the pedals even with the computer chair lowered as far as it could go. I conclude from this evidence that an effort was made at first to let the complainant play the game without being on the accused’s lap. There also no evidence that the accused ever did anything to keep the complainant sitting on his lap after he became aroused. In these circumstances, I would not convict the accused of sexual assault or sexual interference relating to the contact he had with the complainant while seated at his desk.

[67] However, that is not so with respect to what happened on the bed.

[68] The Crown has particularized the touching it alleges constituted sexual interference as being touching with the hands. I have rejected the complainant’s evidence that the accused tried to put his hands down her shorts. While I have found that the accused put his arms around the complainant while he played a video game, as she said in her evidence, I am unable to find that this use of the accused’s hands was for a sexual purpose.

[69] For this reason, a finding of not guilty will be entered on Count #2 on the indictment, the count relating to sexual interference.

[70] However, the Crown has not particularized the conduct that it alleges constitutes a sexual assault in Count #1. For the reasons I have expressed, I am satisfied beyond a reasonable doubt that the cuddling by the accused of the complainant, occurring as it did after he kissed her and while he was aroused, constituted a sexual assault.

[71] Therefore, a conviction will therefore be entered on Count #1 on the indictment.

M.G. Ellies J. Released: March 19, 2024