r v. ANDREW PHILLIPS, 2016 QCCQ 20471

R. c. Phillips 2016 QCCQ 20471 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Criminal Division No: 500-01-089034-133 DATE: July 21, 2016 ______________________________________________________________________ BY THE HONOURABLE JULIE RIENDEAU, Q.C.J. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

ANDREW PHILLIPS Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On three different occasions, the plaintiff, X, who is around 4 years old at the time concerned by the accusations, tells members of his family that the accused plays with his genitals. The accused is a substitute child care educator at the CPE the boy attends. [ 2 ] The accused has to answer to a count of sexual interference, contrary to

section 151 of the Criminal Code . It was undisputed, at the close of the trial, that no evidence was tendered in support of the second count of the information. [ 3 ] The accused denies having committed any illegal gestures. [ 4 ] The matter at issue is whether or not the evidence, taken as a whole, demonstrates every elements of the offence beyond a reasonable doubt. The burden of proof rests on the prosecution and never shifts to the accused. THE FACTS [ 5 ] X is now seven years old. In 2012, he reveals to his mother and his father, on two distinct occasions, that the accused plays with his penis.

Several months later, in 2013, he mentions it to his aunt. That brings the child to say it again to his father, and to tell his story to the police in a video statement. The Court will come back later to the testimonies of X’s mother, father and aunt, after relating what is to retain from X’s testimony. [ 6 ] To the police officer, in March 2013 when he was 4 years old, X says essentially that the accused touches his penis during naptime and identifies the accused as sometimes being his educator. He adds that it happens only during naptime.

However, it does not happen anymore since the accused is no more his educator. When asked to tell more about the accused touching his genitals, X says “he plays with my penis”. [ 7 ] After a short break, where the investigator leaves the room and comes back saying X probably did not understand some of her questions, X explains how he gets his own mattress to put it down on the floor. Showing the investigator how he sleeps, he lies down on his belly. He also shows how the accused plays with his genitals, explaining that he takes his penis out of his pants. X shakes his hand to demonstrate what the accused does.

X adds that the accused sits beside him when it happens. Moreover, he says it happened numerous times and it lasted for the entire naptime. X explains that naptime is after lunch and it happened when he was in classroom # 6. Finally, he tells the investigator that he talked with his mother and father about what happened with the accused, but not with S., his father’s sister. [ 8 ] Now 7 years old, X says he remembers having participated to the video and assures what he then said is the truth. [ 9 ] He now explains that the accused was an educator who would replace his usual one.

He confirms the classroom number and gives more details concerning the exact place he was sleeping in the classroom. It was in the back of the room, near a costumes’ storage, over which were other boxes. He also mentions that every child has a blanket and would put it over themselves for the nap. [ 10 ] He also explains that he is lying on his back when it happened. The accused would pull down his blanket and his pants and take his penis out. He would then say his penis was hard. X shows what the accused then does with his penis.

Essentially, the movement made by X could be described as a masturbatory movement, two fingers holding the penis. X also mentions that the accused would

sometimes hold his penis as one would hold a machete. The accused would afterword pull up the blanket. When it happens, X says the accused would sit down “en indien”, at his right. The accused would touch him every time he is there. [ 11 ] In cross-examination, X explains that he does not sleep beside the door between room 6 and 7. He sleeps beside the toys or sometimes beside the table. He remembers having discussed what happened with his parents and, after hesitating, remembers talking also with his aunt about it.

He did not remember that at the time of the video. [ 12 ] The three people to whom X discloses his story testify. [ 13 ] His mom explains that it happens at supper time during the summer of 2012. X, his mother and his older sister are eating when X says it, in a “no big deal” tone, immediately followed by his sister laughers because of the word he used. The mother, after asking him some questions on the subject tells him that he has to mention it to an educator if anyone touches him.

X’s mother does not report the situation to anyone because she thinks, at the time, that the accused probably slightly touched X’s genitals when helping him to change underwear during the day. For her, it would make sense since X’s, who was toilet-trained, started recently to have difficulty and often has to change underwear during the day.

Moreover, she has great confidence in the daycare her children go to. [ 14 ] X’s father also remembers that X mentions to him the same thing he said to his mother during a conversation about general safety rules, including the one concerning not to let anyone touches his genitals. As X’s mother, he does not report it, also because he thinks it is linked with X being helped to change when his underwear gets dirty at the daycare. [ 15 ] Several months past before X says again that the accused touches him. It happens at his aunt’s place where he was sleeping over.

X’s aunt remembers X having such a temper that she has to punish him many times during the whole day, when this is clearly not his usual behaviour. [ 16 ] The next morning she asks him if anything bothers him, for example if he gets bullied at the daycare. She does not remember asking him if anyone touched him, but it is not excluded. It is at that moment that X mentions being touched by the accused. As soon as he says it, she started to ask him general questions not to influence him in any way. X explains what happened.

Asked to show how the accused touched his genitals, X takes out his penis and demonstrates a masturbatory movement, holding it with two fingers. As soon as X’s father arrives to get the kids home, X is asked to tell his father what he told his aunt. So he tells it again and shows again what the accused did to him. [ 17 ] Cross-examined about the use of the expression “100 fois” by X when he was asked how many times the accused touched his genitals, X’s father says that X knew then how to count to approximately 30.

X’s father adds that without knowing then what represents exactly “100”, X knew that it was a number greater than 30. [ 18 ] Other than the accused, two witnesses testify in defence: the director of the CPE X attended, and the child care educator assigned to the class facing X’s class, on the other side of the hallway. [ 19 ] It is undisputed that the accused is a substitute educator at the CPE during the year of 2012, including during the summer and the Christmas Holidays and that he was going on his third year when he is was arrested.

He replaces educators who are absent for different reasons, in the classroom where the educator is absent. [ 20 ] The Court understands from the director’s testimony that X is in group # 6 until the end of August and transferred in group # 8 in September. There is a door between classrooms 6 and 7. Naptime lasts 2 hours.

For one hour during naptime, only one educator supervises group 6 and 7 because the educator of group 6 or 7 has to replace group 5’s educator, and because each educator is entitled to a 30 minute break. [ 21 ] Without going into details, the compilation made by the CPE director, based on the rotation principle explained in the previous paragraph and on the CPE archives, shows that the accused is assigned to X’s group for the whole day four times in July and August (July 3 and August 7, 22 and 23), which means that he is supervising at least 1 hour of the group nap period and is alone supervising group 6 and 7 at least 30 minutes; on four other occasions, by being responsible for group 7, he is also responsible for group 6 for at least 30 minutes during nap period, so again alone with both groups for at least 30 minutes.

Finally, it could not be excluded that he is responsible for group 6 during naptime and therefore alone for at least 30 minutes on four other times since the archives reveals he is assigned to groups 5-6-7 sector. [ 22 ] The Court also understands from her testimony that one can see in the classroom even if the door is closed. It is not completely dark, even if the lights are turned off and the blinds are down. You can see people on the mats to a certain degree, but you could not read.

You can see that there is an educator in the room, but however there is all kind of furniture that is not shown on the classroom’s plan. As for the door of classroom 6, it is glassed, starting at waist level. [ 23 ] The director also explains that anyone has access in classes during nap time because no doors are locked. It is a possibility that she has to talk to the accused once or twice during naptime. [ 24 ] She finally confirms that there is a child who needs special attention in classroom 6.

He would sleep near the exit door in class 6, which is right beside the door between class 6 and 7. [ 25 ] The classroom 5’s educator essentially confirms the rotation principle and the presence of a child with special needs in class 6. She also explains that from the place she sits in the class during naptime, she sees the educator sitting on a chair between class 6 and 7 when that person is alone because of the other’s educator break. The doors are opened and the educator is then facing her.

She’s sitting down in the middle of her class. [ 26 ] Asked in cross-examination if it was possible that the door was closed when the investigator went to the daycare, she answered yes, “but we keep the doors opened”. She also mentions that she had never seen the accused sitting down near a child, adding that “we don’t sit near a child, we sit on a chair.”

[ 27 ] As for the accused, he denies committing any offense. From his testimony, the Court understands that X sleeps next to a toy box, generally on his stomach. When taking care of classes 6 and 7 during naptime, the accused sits on a chair, near the child who needs more attention, or walks in the rooms to see if everything is correct or if anyone needs anything. Based on the graph filed at trial, the Court also understands that X is sleeping next to this child, but with a large shelves unit separating the two boys, so they cannot see each other.

The child who needs more attention usually does not sleep while X is a good sleeper even if there are days where he could not sleep. As the director of the CPE mentions, the children are assigned to a specific place when they sleep. [ 28 ] Also concerning the naptime, the accused explains that the door between room 6 and 7 is opened from 1 pm to 2:30 pm since there is only one educator for both groups during that period of time. After 2:30, it might be opened or closed depending on the time the children are waking up.

With reference to classroom 5 and 6, the Court understands that even if the lights are off, it is possible to see from one room in the other room, that, even if the door is closed since there is a glass in the door that comes to waist height. However, even if the vision is good from one room to another, three kids in room 6 cannot be seen if they are sleeping because of the place they are assigned to, but X is not one of them. As for the vision in the classroom itself during naptime, the accused says it is clear enough so he can read.

The accused also mentions it is possible that another educator on break comes to say hello or discuss plan for after naptime activities. It might also be the director or her assistant who needs to say something or give a pay check. [ 29 ] Concerning X, the accused does not remember going to the toilet with him, adding that if he urinates in his pants, he would change himself. Also, without remembering if it happened, he would help X to wash himself if he would defecate. [ 30 ] When a child has problem sleeping, it could happen that he sits next to him for a minute or two. It happened with X.

He does remember X sleeping on his stomach, but it could happen that he’s on his back. POSITION OF THE PARTIES [ 31 ] The prosecution counsel submits the evidence clearly demonstrates that the accused sexually interfered with X while he was responsible for him during the naptime. Some contradictions between the defence witnesses, including the accused, supports the fact that no matter what scenario is retained, it leaves the accused with opportunities to commit the offence he is accused of. As for the evidence presented by the prosecution, X’s testimony is precise, detailed and corroborated on several aspects.

The guidelines established in the case law concerning child testimony should bring the Court to conclude that X is credible and reliable. [ 32 ] As for the accused, apart from denying committing the offence he is accused of, he essentially submits it would have been impossible to do so since he was never completely alone with the children when responsible for them.

The fact that it is always possible to see in the classroom, even during nap time, combined to the fact that anyone could come at any time, should bring the Court to conclude that it is incredible and illogical anyone would sexually interfere with a child sleeping at the place where X was. [ 33 ] As for X’s testimony, it should be dismissed because some things he states are impossible, such as the number of times the accused would have touched his genitals, or the length of time the accused would have remained next to him during naptime, while he does not recall uncontested facts, such as the disclosure to his aunt.

The accused also highlights the fact that when asked how he sleeps, without hesitation X puts himself flat on his stomach, which would render impossible any touching to the genitals. [ 34 ] The accused also urges the Court to be cautious with the fact that the 2013’s disclosure comes out only after X being questioned by his aunt.

ANALYSIS [ 35 ] Faced with contradictory versions, the Court must analyse the evidence of the accused while taking into consideration the whole of the evidence and the rules concerning credibility edicted in W.D . [1] [ 36 ] Is the evidence of the accused credible? [ 37 ] The first group of arguments submitted by the accused concerning the conditions surrounding the naptime that renders impossible for anyone to commit the alleged offence during that period of time cannot be retained, mainly because of the contradictions observed in the defence witnesses’ testimonies, including the accused testimony. [ 38 ] With regards to the testimony of the director and the other child care educator, the accused is partially right.

It is true that their testimony support his about the general surroundings at the CPE and the general routine, including the staff rotation during break and the fact that people may go see a colleague during naptime for whatever reason. It is also undisputed that between March 1 st and August 23 rd 2012, the accused is present in room 6 at the most twelve times during naptime.

But contrary to what the accused submits, discrepancies remain concerning lightness in the classrooms, door positions or other accused’s habits during naptime. [ 39 ] It is obvious from all the defence witnesses that lights are off and blinds are down when the children are sleeping. What is not so clear is to what extent one could see in a classroom.

While the accused says it is clear enough to read a book, which he sometimes does, the director says you can see people on the mats to a certain degree, but one could not read, adding that sometimes furniture may be in the way if you look in the classroom. [ 40 ] The same discordance exists with regards to the main classroom door position during naptime.

While the director asserts doors are closed, the group 5’s educator affirms they are opened and it is not clear, from the accused testimony, if they are closed or opened, since he talks about the possibility to see into the classroom 6 if the door is closed without however being directly questioned as of the door position during naptime. [ 41 ] In addition to what is said in the previous paragraph, the Court wants to highlight the fact that the class 5’s educator, after strongly maintaining the doors of classrooms 5 and 6 are always opened, recognizes it is possible her classroom door was closed when the investigator went to the daycare.

[ 42 ] As to what goes on in classrooms 6 and 7 during naptime, the room 5’s educator is contradicted by the accused on certain points. Despite the consensus as to educators’ rotation during the naptime and the fact that one educator supervises both classes for a certain period of time, it is impossible to reconcile her words with what the accused mentions with regard to what he does or does not in the classroom.

Indeed, while she states that she always sees the accused during naptime, that he always sits at the junction of classes 6 and 7 and that he never sits near a child, the accused says that he sometimes walks in the classrooms or sits next to a child who has difficulty sleeping. Since it could be harmful for the accused to admit sitting next to a child, moreover sitting next to X, the Court sees as more probable than not that the accused does walk in the classrooms and does sit next to a child and as X also says that the accused sits next to him.

That being said, either room 5’s educator voluntarily misleads the Court, or the accused walks in the rooms and sometimes sits near a child when she is on break, or finally she simply does not notice everything that goes on in classroom 6. [ 43 ] In any case, it brings the Court to conclude, contrary to what the accused submits, that nothing in the testimonies of the defence witnesses makes impossible that he committed the offence he is accused of.

This conclusion remains when taking into consideration the whole of the evidence, as no other witness addressed the issues on which this argument is based on, namely the subjects of lightness in the classroom and door position between rooms 5 and 6. These particular subjects were also not put to the plaintiff. [ 44 ] Does the fact that anyone can come unannounced, which is undisputed, changes that conclusion?

Weighting X’s and the other witnesses’ testimonies is necessary to conclude on that point. [ 45 ] First, the Court notes that both parties treated X’s mother, father and aunt testimonies as being reliable since no comment were made to invite the Court to disregard any part of it. In fact, both parties related to these testimonies when arguing on X’s reliability. [ 46 ] What about X’s assertions?

The accused invites the Court to disregard X’s testimony for many reasons. [ 47 ] First, it is obvious, based on the evidence, that the accused could not have touched X’s genitals 100 times since it is crystal clear that the accused was responsible for X during naptime for no more than 12 times. On that subject, the accused reminds the Court to consider X’s father testimony concerning X’s knowledge of numbers at the time, when he said X knew then how to count up to 30 and that 100 is a greater number than 30.

The accused invokes that in these circumstances, and that only because X is a child and one has to be flexible when appreciating his testimony, 100 times necessarily means more than 30 times, which is also impossible. [ 48 ] Secondly, it is obvious that no one touches X’s genitals for 2 hours in the context of the daycare, so the assertion that the touching lasted for the whole naptime is proven to be wrong. [ 49 ] Thirdly, the accused alleges that it is impossible anyone touched X’s genitals during naptime since X says he sleeps on his stomach. [ 50 ] Finally, the Court must be extremely prudent when appreciating X’s assertion because it may have been induced by his aunt’s questioning.

She indeed recognizes that she may have asked X if anyone had touched him. [ 51 ] With respect to assessment of X’s testimony, the Court has to apply the principles enunciated in B.(G.) [2] and W.(R.) [3] . On one hand, the standard of proof required for conviction remains the same when a proof is offered by a child witness. On the other hand, a different treatment should be reserved for such a testimony. One has to use a common sense approach when assessing a child testimony and has to avoid rigid stereotypes.

The assessment should take into account not only the age of the child when testifying, but also the age of the child when the facts were observed. [ 52 ] X’s testimony has two components: the video statement made when he was 3 years old, and the testimony rendered at trial. [ 53 ] Apart from the assertion that the accused touches his genitals during naptime, on which the Court will come back, the Court notes that several elements mentioned to the investigator when X is 3 years old are proven to be correct.

Indeed, the group he’s in at the daycare when the alleged gestures occurs, the ritual surrounding the naptime and the fact it is after lunch, the place where he puts his mat, which is near a toy box, the fact that the accused is his educator only on some occasions and the fact that he sits next to him are revealed exact based on the testimonies of the accused himself and of the daycare director. [ 54 ] When testifying at trial, X confirms in a more detailed fashion what he says at 3½ years old.

Moreover, he makes an exhaustive description of his position on the floor and of the accused gestures starting when he brings down the blanket. X does not only mentions the motion on his genitals but demonstrates it, relating words said by the accused. [ 55 ] It has to be noted here that the motion demonstrated by X in Court is the same motion he made to his aunt at 3½ years old when questioned about the accused’s gestures towards him. [ 56 ] On that subject, the Court does not see how X’s aunt may have influenced him when he discloses the accused gestures towards him.

Even in the case she would have asked him if anyone touched him, it remained an opened question. She also explained that she paid attention not to be suggestive in the questions asked presuming it would be important to remain neutral in any case there would be a disclosure to the police. [ 57 ] Regarding the accused arguments highlighting the fact that X puts himself on his belly when asked how he sleeps, it does not stand. It is true that X does so on two different occasions, the first time when he is 3 years old and the second time at trial when he testifies.

However, both times he is questioned on how he sleeps without any direct reference to his position when being touched by the accused, but as soon as the question concerns directly the accused gestures towards him, it is clear from his testimony that he lies flat on his back. [ 58 ] The Court also does not retain the “a hundred times” argument, neither the argument concerning the mention by X that the touching would have last for the whole naptime. The accused is right when he sustains that it is impossible the alleged gestures occurs a hundred times and that they last for the entire naptime.

However, it is in that kind of situation that a judge has to use a common sense approach. One could not expect from a 3 ½ year old child what could be expected from an older child. This is exactly why the Court has

to assess his testimony taking into consideration every piece of evidence. [ 59 ] Here, X’s testimony is detailed and precise as well as corroborated on many aspects, even if he is wrong on what is treated above.

It is also implausible that a 3 ½ year old boy would describe with precision and so realistically a motion made on his genitals, in a naïve manner, as he does when disclosing the events to his aunt, adding now, being 7 years old, almost as naively as he did before, that the accused was also saying “c’est dur” when touching him. [ 60 ] As for the fact that X affirms when 3 ½ years old that he only talked with his parents about the accused touching his genitals, he says now he remembers talking to his aunt.

Even if it would not be the case, the Court finds it would not affect the reliability of X’s testimony in a way that would bring the Court to entirely discard it. [ 61 ] That being said, the Court concludes without hesitation that the fact that anyone could come unannounced does not impeach anyone to commit the offence the accused is charged of, when assessed with the whole of the evidence. [ 62 ] Without more precision or support concerning the occurrence of the unexpected visits, and in the context where the director says she went to see the accused maybe once or twice during naptime while he was employed by the CPE, it remains a possibility that has a limited impact on the assessment of the evidence.

The fact that X is in the back of the classroom during naptime and that no kids are directly next to him since one is on the other side of a shelf and the other is lying the opposite side he is (X’s head next to his friend’s toes) and may be sleeping, combined with at least a medium obscurity in the room and the Court’s conclusions on the position of the class’ front door, convince a certain confidentiality may be possible. Even if a risk exists, it could never be excluded that one decides to take it. In conclusion, the “unexpected visit” argument is not retained when considered with the whole of the evidence.

It also does not affect X’s reliability. [ 63 ] The Court adds the fact that neither X’s mother nor X’s father report the situation to the police the first time X discloses the events to each of them in 2012 could not be retained as affecting in any way X’s reliability, as the accused argues. Whatsoever the parents did at the time has nothing to do with the decision the Court has to make.

Moreover, both parents explained clearly why they did nothing at the time. [ 64 ] Finally, as the accused mentions, we may ask ourselves why, after disclosing the accused behaviour towards him during the summer of 2012, it only comes back on the subject more than six months later. The question is legitimate. But, at the same time, no answer is required. The only requirement is that the prosecution proves beyond a reasonable doubt every elements of the offence the accused is charged of before finding him guilty. [ 65 ] A proof beyond a reasonable doubt is based upon reason and common sense.

It is logically connected with the evidence, or the absence of evidence. [ 66 ] In view of all the circumstances, the Court finds that the denial of the accused does not raise a reasonable doubt assessed with the whole of the evidence. Moreover, the evidence, taken as a whole, demonstrates every elements of the offence beyond a reasonable doubt. FOR THESE REASONS, THE COURT : DECLARES the accused guilty on count 1 of the indictment. __________________________________ JULIE RIENDEAU, Q.C.J.

Me Amélie Rivard Attorney for the prosecution Me Robert Israel Attorney for the accused Dates of hearing: June 8, 9 & 10, 2016