R. v. Johnny, 2018 BCPC 171

Citation: R. v. Johnny 2018 BCPC 171 Date: 20180424 File No: 16363-1 Registry: Bella Bella IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TERRANCE DANIEL JOHNNY BAN ON PUBLICATION -

SECTION 486.4(1) C.C.C. ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E.C. BLAKE Counsel for the Crown: Ms. R. Opel Counsel for the Accused: Mr. D. Marion, Q.C. Place of Hearing: Courtenay , B.C. Date of Hearing: April 24, 2018 Date of Judgment: April 24, 2018

[ 1 ] THE COURT: The evidence in this case has now concluded. The Crown has invited me to dismiss Counts 1 and 2 of the information, which alleged that the accused touched the complainant K.W. for a sexual purpose with a part of his body. Those charges are now dismissed. [ 2 ] The Crown submits, however, that I should convict the accused on Count 3, in which he is alleged to have invited, counselled, or incited K.W. to touch his body, directly or indirectly, with a part of her body or with an object. [ 3 ] A succinct

summary of the relevant circumstances may be extracted from the testimony of G.W., the mother of the four-year-old complainant K.W. G.W. testified that on the evening of May 3, 2013, she had been sleeping. She awoke because she was thirsty, and intended to go to the bathroom to obtain her puffer, and to the kitchen for some water. [ 4 ] As G.W. headed for the bathroom, she noted that K.W. was neither in her bedroom, nor in the living room of the residence. As G.W. entered the kitchen she found herself looking directly at the back of the accused, who was standing facing a counter.

K.W. was directly in front of him, less than a foot away, sitting on a booster seat in front of the counter. She was facing the accused, and her head was just above the accused's stomach level. The accused turned quickly to look over his right shoulder at G.W. G.W. testified that as he did so he was "shuffling with" or closing his pants, which were normally held together with Velcro at the waist. G.W. was shocked at what she had just seen in the kitchen, believing that what she had stumbled upon was sexual in nature. [ 5 ] G.W. yelled to the accused, "What the hell are you doing?" The accused did not reply.

The child K.W. ran out of the kitchen, and G.W. went to speak with her. She did not see the accused again until sometime later, when he had his head in his hands and was still seated on the kitchen floor. Nothing further of substance happened between G.W. and the accused at that time. [ 6 ] The child complainant did not testify at this trial. [ 7 ] In cross-examination G.W. conceded that she did not see the accused touch K.W., nor did she see K.W. touch the accused.

She did not see the genitals of the accused, which were still inside his pants when the accused was closing the Velcro waistband at the conclusion of the observations. [ 8 ] In his interview with the police on May 5, two days later, the accused initially denied remembering anything about what had happened when he was in the kitchen with K.W., claiming that he was too drunk to recall. Upon further questioning, however, he revealed details bit by bit. [ 9 ] The following passages are relevant, and I am referring to the transcript, page 30, between lines 812 and 817.

The police officer asks, "I want you to think really hard and tell me what happened in that kitchen?" The accused answers: Seeing [K.W.] on a chair reaching for a snack, then I was taking -- undoing my shorts, and I don’t know. And then that's when [G.W.] said what the hell are you doing? And then I turned around and she told me to leave, and I left. That's all I remember. [ 10 ] That is the end of that passage. [ 11 ] Further questioning then led to the following exchange, and I am beginning at page 38, line 1046.

This is the police officer speaking: [Q] When [K.W.] was wanting the treat and whatnot, she was probably at somewhat of a level to you, where would she be at to your level, when you were -- I am assuming you were standing? A Yeah. Q How high up would she be when you were with her in the kitchen and she was on her chair? A She'd probably be around my . . . Q Is that where her head would be? A Yeah. Q Okay. A 'Cause she was on her chair on a -- on the highchair that was on the chair. Q So she'd almost appear to be a little older, 'cause she was -- 'cause she was tall, right? Higher, right? A I guess.

Q Is it possible that you wanted [K.W.] to touch your penis? A Yeah, that could be a possibility, yeah. I don’t know. Q I think you do know, and I think you -- it's awkward for you to tell me about it, right? But I want you to tell me about it. A Yeah, I thought she was older when she was standing on the highchair. Q Okay, and tell me what you did and what you were thinking? A That I wanted to kiss her and I guess have intercourse. I don’t know, it's . . .

Q You thought she was older and you wanted to kiss her and to have intercourse, is that what you said? A Yes. Q Okay. Well, tell me about that? If that's what you thought about it -- excuse me -- if that's what you thought tell me about it, andwhat did you do? A I was just beginning to take off my shorts and then [G.W.] came, and then that's what happened. I -- my penis didn’t show. Q Your what, sorry? A I said my penis didn’t show, I was just about to take it out and then didn’t, and then [G.W.] came in.

She told me to leave andthen I left. [12] That is the end of that passage. [13] The Crown submits that if I take together [G.W.]'s observations and the statement of the accused I should have no reasonabledoubt that the accused committed the offence charged. [14] The defence submits that the evidence falls short of constituting proof beyond reasonable doubt on that specific charge. [15] One of the leading cases concerning the

interpretation of s. 152 of the Criminal Code is R. v. Legare, a decision of the AlbertaCourt of Appeal, found at 2008 ABCA 138 , 2008 A.J. No. 373. In that case the court said this regarding the actus reus of theoffence: The ordinary and grammatical reading of the language of s. 152 requires the Crown to prove that an accused, for a sexual purpose,communicated with a child in a manner constituting an invitation, incitement or counselling of conduct wherein the child would touchany person, including either the accused or the child himself or herself. That conduct does not itself have to be imminent.

The twoindividuals do not have to directly touch each other, as the touching may be indirect... ...Indeed, there does not need to be any touchingat all as the core verbs involve communication. Moreover, even if the specific words used only suggest that the adult wishes to be the initiator of sexual activity, a trier of fact couldreasonably find that the adult communicates for a sexual purpose with a child and invites, incites or counsels the child to touch the adultsexually. If it were otherwise, one could expect that predators would soon arrange their word choices accordingly.

Indeed, it isnonsensical to suggest that designing the communication content so as to only use words to convey physical activity by the predator uponthe child, that the child is not in that sense touching as much as being touched.

On the facts here, in any event, it was certainly possibleto interpret the conduct advocated by the respondent towards this child as having mutuality.... [16] The Crown submits that even though there is no evidence here of words spoken, or gestures made by the accused, I should findthat the accused did implicitly or indirectly communicate to the child that he wished her to touch a part of his body.

Crown points to theclose proximity between the accused and K.W, the fact that the top of his pants was undone, that he behaved in incriminating fashionwhen confronted by [G.W.], and that K.W.'s head was just above the level of the accused's stomach. [17] While the circumstances are quite obviously incriminating in a general sense, I am not at all sure that the evidence proves theoccurrence of any communication of the sort required for conviction.

I must bear in mind that the parties may initially have come intoclose proximity with one another in an entirely innocent way, as the accused assisted the young complainant to obtain a snack from acupboard above the counter. I must also bear in mind that the evidence clearly suggests that the accused's penis was at no time exposedto the complainant. [18] There is a further and equally significant problem with the evidence from the Crown's perspective.

Before there can be aconviction under s. 152, it must be shown that the purpose of any communication involved an invitation, incitement, or counselling toengage in the sort of touching contemplated by the section: i.e., a touching of the body of the accused, or at least, to use the words of theAlberta Court of Appeal, "a substantial and unjustified risk that the child would receive that communication as being an invitation,incitement, or counselling to do that physical conduct." [19] In the present case, it is impossible to discount the realistic possibility that the accused contemplated masturbation in front ofthe complainant, as opposed to any sort of sexual touching by one person upon another.

G.W. intervened at a stage where it isimpossible to be sure which of the two activities the accused intended. On this last point, the statement which the accused made to thepolice is not sufficient to remove the equivocal nature of the observations made by G.W. [20] It is certainly true that the accused was lying and manipulative in his dealings with Constable Burns, revealing the truth only byincrements when confronted by the police officer. But the questioning never reached a definitive stage where the accused pinpointed thesexual conduct which he had in mind in a manner which I can accept as truthful.

The closest that his statement comes to proving thecase for the Crown occurs in answer to a leading question from the police officer in a passage which I have already mentioned, and I willrepeat, passage found at page 39, line 1060 to 1078. Q Is it possible that you wanted [K.W.] to touch your penis? A Yeah, that could be a possibility, yeah. I don’t know. Q I think you know, and I think you -- it's awkward for you to tell me about it, right? But I want you to tell me about it. A Yeah, I thought she was older when she was standing on the highchair. Q Okay. And tell me what you did, and what you were thinking?

A That I wanted to kiss her and give her -- and I guess have intercourse. I don’t know. Q You thought she was older and you wanted to kiss her, and to have intercourse, is that what you said? A Yes. Q Well, tell me about that? If that's what you thought, tell me about it, and what did you do? A I was just beginning to take off my shorts, and then [G.W.] came, and then that's what happened. I -- my penis didn’t show. Q Your what, sorry? A I said my penis didn’t show. I was just about to take it out and then didn’t, and then [G.W.] came in.

She told me to leave, and then I left. [ 21 ] That passage suggests that the accused agreed with the police officer's suggestion that there was a possibility he wanted the child to touch his penis, or that there was a possibility he wanted to kiss the child and have sexual intercourse with her. Given his extreme malleability by this point in the questioning, and given the fact that he was attempting to piece together events that had occurred when he was in a drunken state, I suspect that if he had been asked if masturbation was a possibility, he might have agreed with that as well. I do not know.

All I can say for sure is that if he communicated with the child at all, which has not been shown to be true beyond reasonable doubt, the evidence does not disclose clearly what the purpose of his communication was. It may have been to engage K.W. in sexual touching, but it may not have been. [ 22 ] Accordingly, while I find the conduct of the accused to be disturbing in the extreme, I cannot find that he has been found guilty of an offence under s. 152 of the Criminal Code , and he must be acquitted. [ 23 ] Those are my reasons. (REASONS FOR JUDGMENT CONCLUDED)