R. v. S.S., 2011 NSPC 42

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. S.S., 2011 NSPC 42 Date: July 20, 2011 Docket: 2207764, 2207765 Registry: Halifax Her Majesty the Queen v. S.S., a young person DECISION Judge: The Honourable Judge Jamie S. Campbell Heard: May 17, 2011, July 8, 2011, July 15, 2011 Decision: July 20, 2011 Charge: cc 271, cc 151 Counsel: Catherine Cogswell - Crown Attorney Luke Craggs - Defence Counsel By the Court :

[ 1 ] S.S. is now 16 years old. Just about a year ago he was charged with sexual assault. [ 2 ] The charges arise from statements made by A.S., who is now 8 years old. [ 3 ] In the summers of 2009 and 2010 S.S. found himself a bit at loose ends, playing in the playground attached to the apartment complex where he lives with his family. Some of his friends had moved away. He said that he generally has trouble making new friends and sometimes feels that he doesn’t have that much in common with the people in his age group at school. [ 4 ] He struck up a friendship with A.S., who was also at the playground.

They used to play tag and other games at the playground. There were others around and sometimes he would play with some of the other younger children as well. Often though, they’d be alone. A.S.’s mother would look out from their apartment to check on her. [ 5 ] He used to make forts or clubhouses out of discarded cardboard boxes that he found in a dumpster. He’d take the cardboard and put it around parts of the equipment so that there would be a small enclosure of about one square metre. No one could see inside. He said that A.S. liked doing that.

They would sit inside for a while, then come out and do something else. While inside they would talk, usually about Mario and the other games that she liked to play on her gaming system. It can be difficult for adults to imagine what kids can talk about for any length of time. But if some adults can talk incessantly about golf, there is no reason to believe that the intricacies of getting around the Mushroom Kingdom are not enough to fuel hours worth of conversation. [ 6 ] A.S. and S.S. seem to have got along very well. S.S. would come to her apartment sometimes to bring A.S. out to play.

A.S.’s parents knew that she was spending time with S.S.. [ 7 ] C.P. is a friend and neighbour of A.S.’s mother, C.S.. C.P saw S.S. and A.S. playing together at the playground fairly regularly. She had seen S.S. walking while holding A.S. by the hand just before her friend, C.S., came out and got her daughter. They were spending time in small enclosed spaces. C.P also said that there was one occasion when she’d seen S.S. and A.S. sitting very close together on the playground structure and that she exchanged looks with A.S.’s mother.

She recalled another occasion when S.S. should not have been sitting so close to A.S.. C.S. came and moved A.S. away from him. She said that her son J.P. would not have wanted to play with A.S. because of the age difference. He would not have sat so close to her and would not have held her hand. [ 8 ] J.P. is C.P’s son. He is 12 years old. He used to see S.S. and A.S. playing in those forts or clubhouses made of cardboard. One day in July of last year he saw S.S. holding a plant of some kind that was about 8 inches long. He was rubbing the plant up and down A.S.’s leg, below her knee.

To him, it just looked “weird”. He reported it to his mother. [ 9 ] J.P. said that he wasn’t looking for anything inappropriate but he “might” have heard his parents talking before about the “relationship” between A.S. and S.S.. It is safe to say that 12 year old boys don’t report everything they see as being “weird” to their parents.

If they did it would become almost a full time occupation. [ 10 ] C.P. reported as well that S.S., who was three years older than her son, had been very aggressive toward him to the point where parents had to get involved. [ 11 ] The P. family appears to have had some concerns about S.S.. It isn’t hard to understand why. Fifteen year old boys generally don’t play with 7 year old girls. They might act as babysitters but they usually don’t seek out a 7 year old for company. Kids like forts, clubhouses and small enclosed spaces. But, 15 year old boys don’t spend time in them with 7 year old girls.

There are times when 15 year old boys will hold the hand of a younger child, perhaps to cross the street or to make sure the younger child doesn’t get into traffic or perhaps just as a way of comforting a younger child who is upset. It usually doesn’t just happen on a playground. S.S. appeared to be a loner, with few or no friends of his own age.

[ 12 ] When J.P. told his mother about what he’d seen she reported it to A.S.’s mother, C.S.. C.P. said that while she didn’t think he was checking A.S. out for “sexual abuse” she did not think it was normal. [ 13 ] C.S. and her husband N.S. were of course fully aware that he daughter had been playing with S.S.. In the summer of 2009 she was a bit concerned and wondered why a boy of his age would not be playing with kids closer to his own age.

By the summer of 2010 her level of concern was elevated to the point where she felt it was necessary to explain to her daughter about what she referred to as the “bathing suit area”. She explained to A.S. that no one should touch her in the areas covered by a bathing suit. (A.S. herself called it the “bikini area”.) [ 14 ] She had concerns or suspicions about S.S.. She had seen them holding hands. She knew that they were out of sight for periods of time in those cardboard boxes. Every couple of weeks, she would ask A.S. specifically whether S.S. ever touched her in that area. C.S. made sure that A.S. understood.

The conversations were not merely in passing. They sat down and C.S. would ask whether S.S. was touching her. She was asked why, in light of those concerns, she wouldn’t have simply prevented A.S. from playing with S.S.. She said that it was A.S.’s playground too. That, I suppose, is technically responsive to the question. [ 15 ] N.S., A.S.’s father, also said that he had concerns about his daughter playing with S.S.. On two occasions he had asked her whether anything strange or unusual had been going on. She said that nothing was going on.

A 7 year old child however, may not fully appreciate the significance of what is being asked or really understand what “going on” means. For any number of reasons a child may not feel comfortable to make a disclosure event to a parent. People of all ages disclose these things on their own timetables. [ 16 ] C.S. also gave evidence of a troubling incident that happened a few weeks before the statements that gave rise to these charges. She said that she came upon S.S. lying on top of A.S., inside one of the cardboard enclosures. The two were face to face.

C.S. said she asked what they were doing and took A.S. away for lunch. [ 17 ] In any event, during the time leading up to A.S.’s making the statements that she did, her parents were concerned. It wasn’t just a general concern but a specific one about whether S.S. might be behaving in a sexual way toward A.S.. [ 18 ] With all of this in the background, C.S. received the telephone call from her friend reporting what her son had told her about the incident with the plant. The Statement by A.S. [ 19 ] When C.S. told her husband about the call from C.P. he spoke with A.S..

He brought her into the family’s computer room so that they could sit face to face. N.S. has been trained in the delivery of medical care and understands the importance of asking non-leading questions to illicit accurate information. He told her that J.P. said that he was concerned about her. He told her that no matter what she said she would not be in trouble. He asked if anything was going on with S.S. and she said “yes”. When he asked what, she said that he had touched her. At this point he went and got his wife so that she could be there as well. [ 20 ] A.S. pointed to what the family calls her “crotch” area.

She pulled her pants out and put her hand inside her pants. N.S. was shocked. They didn’t know whether they should call the hospital or the police. They were told by the IWK hospital to contact the family doctor and an appointment was made. After seeing the family doctor they were referred to the police. [ 21 ] There was considerable debate at the trial as to whether N.S. used leading questions to prompt the disclosure. He was struggling to do his very best to recall exactly what was said. He believed that he did not use leading questions.

In his statement to the police given soon after the incident, he said that the question he used was, “Did he ever touch you?” Now he believes that his questioning was more open ended, and that the question used was whether “anything was going on”.

[ 22 ] In any event, in the course of that questioning A.S. made the statement that has brought the matter to court. [ 23 ] A.S. herself was able to describe the area where she and S.S. used to play. She described how they used to make forts from cardboard and play inside them. [ 24 ] She said that S.S. had touched her on the vagina and on the nipples. He asked “Can I?” and if she said no he would just keep begging. Her pants were pulled down and he touched her vagina. She was lying down and he was sitting up at the time.

While it was not clear whether this happened more than once, the language she used would suggest that it had. [ 25 ] She also said that she had been wondering out loud at what age breasts begin to grow. S.S. said, “Why don’t we check them now?” She said that S.S. had a “breast

schedule in his head”. He would poke her nipples with his finger, she thought perhaps once a day. When asked in her interview with the police and a social worker she did not remember being touched anywhere other than on what she called the “crotch”. [ 26 ] A.S. also said that S.S. kissed her on the cheek. [ 27 ] She was specifically asked whether the idea might have been put in her mind by her parents. She said that she didn’t remember that. She said that she thought it was a “good idea” to tell them and that she tried to “do the right thing”.

She said that she told because it was “inappropriate” and that she figured that out on her own. [ 28 ] A.S.’s evidence was as precise and clear as might be expected from an intelligent 8 year old. She could not be expected to have perfect recall. Nothing about her testimony suggested that it was rehearsed or delivered by rote. She was not confused and when confronted with relatively minor inconsistencies she was able to respond in an appropriate way.

For example, when asked about why she had not mentioned during the interview that she had been touched on the nipples, she said in a plain and matter of fact way that she had said just the crotch during the interview but that it was the crotch and the nipples. She said that she didn’t know why that had been left out. It just was. S.S.’s Evidence [ 29 ] S.S. gave evidence about, how during the summers of 2009 and 2010 he played with A.S. in the playground in the backyard of their apartment building.

There was no question that they spent a lot of time together, that they made structures from cardboard, and that they spent time alone in those structures. He said that they would talk about her games but that there was no sexual touching of any kind that ever took place. [ 30 ] His version of events is what can only be characterized as a simple denial. He doesn’t deny that they spent time together and that there were many occasions when they were alone in a small enclosed space.

He does deny ever touching her inappropriately. [ 31 ] On cross examination he was asked whether there had been arguments or disputes between the two. He said no. He was asked whether A.S. had ever “ratted” him out on anything or made up stories about him. He said other than on this occasion, no, she had not. [ 32 ] He was also asked whether he was sexually attracted to prepubescent girls. He said, “No”. Reasonable Doubt

[ 33 ] As in any criminal case the accused person is not guilty unless the Crown proves his guilt beyond a reasonable doubt. Sexual assault cases involve another layer of complexity. They often involve the starkly conflicting evidence of two people. And, in the face of that conflicting evidence, two people and their families, are very directly and personally involved. When the accused is found not guilty there is an almost inevitable sense that the other person, particularly one who is sincere, young and vulnerable, has suffered through a long and difficult process for no real reason.

More than in other cases, that sense of concern for the “victim” has the potential to subtly and unconsciously shift the burden of proof. It has the potential to make the case a contest between the two, even if it is never formally acknowledged as being that. [ 34 ] As a judge I cannot weigh those kinds of considerations. I should still be aware of the risk that they may find their way into the process in order to guard against that. The only issue is whether the case has been proven beyond a reasonable doubt. It cannot be allowed to become anything other than that.

That means that at the end of the trial there is often no decision about what actually happened. Assessment of the Evidence [ 35 ] There was nothing about S.S.’s evidence, on its own that would suggest that it was not true. [ 36 ] It was suggested that his answer to the question of whether he was attracted to prepubescent girls was significant. He didn’t react angrily or even strongly. He just said that he wasn’t. The argument was that a person who was not attracted to prepubescent girls would have reacted much more strongly to the suggestion.

Crown counsel reminded me that in many instances judges have commented on that kind of issue and used a bland denial as evidence to suggest that the denial is not true. [ 37 ] People react differently. The victim of a sexual assault is not assumed to always be the person who will react immediately or show the emotion in particular way. Likewise, a person who is accused would not be assumed to be telling the truth just because he denied the allegation in a theatrical or demonstrative way.

More particularly, a young person, responding to questions from an adult authority figure in an entirely strange and formal setting, may be less inclined toward an indignant response, a raised voice or the body language of one who has just been gravely insulted. There is also the fact here that the question did not come out of the blue. S.S. has been facing these charges for almost a year. Feigning shock at the very suggestion would hardly bolster his credibility. [ 38 ] I was asked to take note of his demeanor in the courtroom.

Counsel noted that he had laughed at times and appeared to be taking the matter casually. I did not observe that. As a regular sitting judge in Youth Court, I can contrast S.S.’s courtroom demeanor with that of many others. He was neither sullen nor flippant. He didn’t roll his eyes. He did shake his head when others were giving evidence. He made no apparent attempt to strike a threatening pose. He did not make a grand entrance into the courtroom, with hand signals and gestures.

He did not appear to revel in being the centre of attention. [ 39 ] He was at times uncomfortable and restless sitting on the wooden bench by himself. There were times when the adult, his father I presume, who was present with him and sitting in the gallery, told him to sit up straight. In any event, as a judge in youth court, I have to be cautious about interpreting the ways in which young people present themselves in the artificial environment of a courtroom. Anxiety can manifest itself in what seems like many peculiar ways.

Nothing in S.S.’s behavior, that I observed, could be commented upon in a negative way. [ 40 ] He was restrained, careful and respectful of both counsel. He was not caught in any inconsistencies in his evidence. He made no attempt to create a story that would make it less possible for these events to have occurred. He did not try to minimize the amount of time that the two spent together or to suggest that they were usually observable by someone else. He did not use the best defence is a good offence strategy and propose some motive for A.S. to have lied about him.

He didn’t propose an explanation that relied on some series of unlikely or unfortunate events. [ 41 ] His evidence is not considered on its own. It doesn’t stand on its own. His denial must be considered in the context of all of the other evidence to determine whether there is a reasonable doubt. Here, that denial stands in face of contradictory evidence of A.S.. There are certainly times, when a firm denial does not stand up as raising a reasonable doubt in the face of that other evidence. [ 42 ] A.S.’s evidence was generally very consistent as well.

There are some issues surrounding it that present a cause for some concern. Those concerns are less about what A.S. said and more about the circumstances around her saying what she did. There was some

considerable suspicion around S.S.’s friendship with A.S.. Her family was concerned. The P.’s were also concerned. Things started to happen within that context of suspicion. [ 43 ] A.S.’s family started asking her every couple of weeks whether she had been touched by S.S.. She was told then about the areas where other people shouldn’t be able to touch. This didn’t happen only once. It didn’t happen in some kind of off handed way. And it wasn’t expressed as a general concern. It had happened a number of times in the weeks leading up to A.S.’s statement. It was serious, as it should have been.

And, it was specific, relating to S.S. and sexual touching. At the time when the statement was made, A.S. was responding to questions about an issue that she had heard many times before. [ 44 ] Her father questioned her about it. At trial, his recollection of the questions he asked was different from his recollection when his statement was given to police shortly after the incident. Whether the questions were technically leading, in the legal sense, is not really the issue. A.S. had been asked before about S.S. and inappropriate touching.

When she was asked this time, she would know what it was about. [ 45 ] In any event, this was not a spontaneous disclosure made by a child. A.S. did not come forward about it. She was asked about, after having been asked about it before. [ 46 ] Crown counsel raised the concern that when parents ask a child about these kinds of incidents it should act as a bar to prosecution. They have to make inquiries to make the call as to what should be done next. This case is not about what parents have the “right” to ask their children. Prudent parents are right to be suspicious. They are right to ask questions.

When those suspicions persist and the child is asked repeatedly, over a period of weeks or months about them, that has to be taken into account when considering any statement that the child eventually makes. When the statement by the child comes after questioning by the parents, however careful and well intentioned, in a context of suspicion of which the child is herself made abundantly aware, that has to be considered as well. [ 47 ] The incident in which S.S. was found lying on top of A.S. causes grave concern. If it did happen, it suggests very strongly that something wrong was happening.

If it did not happen, why would someone simply conjure it from thin air? That is precisely what is so troubling about it. [ 48 ] In light of the concerns and suspicions that were already swirling about, it would be almost impossible not to have interpreted this behavior as being sexual in nature. This would undoubtedly have been a difficult thing for a mother to witness. It would test the restraint of the most even tempered parent.

A 15 year old boy, who has been seen holding hands with a 7 year old girl, and spends a lot of time with her alone in small enclosed spaces, has been found lying on top of her in what could well be interpreted as a simulated sexual position. A parent who goes ballistic in that situation could hardly be blamed. That would seem to be the incident that would end contact abruptly and immediately. It would certainly justify contact with the boy’s parents at the very least. Yet here, nothing of that kind happened. [ 49 ] People react differently to things.

I can no more assume how her parents should or would react than I can assume how a victim of an assault should react or how an accused person should react to a particular question. Some parents, I am reasonable confident in suggesting, would react immediately and emotionally. Some might calmly and quietly want to check things out before doing anything. Having no response seems very strange indeed. A.S. was not even forbidden from playing with S.S., or even told not to go into cardboard box forts with him. No call was made to his parents.

The strangeness of that non-reaction is compounded by something else. [ 50 ] C.S. did not remember that incident when interviewed by the police. At that time she was asked specifically whether there were other incidents of concern. Yet, she did not mention this very troubling incident that had happened only a few weeks before. She didn’t remember it when she was interviewed by the Crown counsel a few weeks before the trial began. She said that she just recalled it “the other day” or “like last night”. People forget even important things. That can happen. [ 51 ] She gave an explanation though.

She said that it was “traumatic” so she only just remembered it. That may be so. It is strange that something so significant would not have prompted a serious and immediate parental response. If it were traumatic that means she knew at the time that it was significant or perhaps very significant. Yet, despite that, nothing at all was done. [ 52 ] Why would C.S. have not taken any action at all about a potentially serious incident that she described as being traumatic, and that happened at a time when there were already suspicions?

Why would the specific question about there being any other incidents have prompted her to remember? Why would she recall other details only to remember this incident the very night before the trial?

[ 53 ] If the incident did happen, over a year ago, as she seems to have recalled it only very recently, the reaction to it was highly unusual. There is no satisfactory or even any explanation as to why that was the case. That leads to a reasonable inference that the event may not have happened as it was recently recalled. If the incident did not happen in that way, the only reason that can be inferred for bringing it up now would be to bolster the case against S.S..

If that were the case, it would raise reasonable concerns about whether A.S.’s disclosure was free from suggestions or other influences. [ 54 ] The circumstances surrounding A.S.’s disclosure of the allegations raise the real potential that she provided answers that were intended to satisfy the suspicions that she reasonably would have known her parents to have had. The concern here is not one about technically leading questions at the time when the statement was originally made, though even N.S. left open the potential that such a leading question might have been asked.

The concern is the sustained period during which A.S.’s parents, and apparently family friends, had openly expressed worries and suspicions about S.S.. Those were not just generalized “suspicions” but the specific sense that he might be involved with touching her sexually. Those suspicions did not result only in A.S. being “watched” more carefully. She was made aware of the concerns. They were not just left as concerns. They were acted upon to the extent that she was asked about them regularly in the weeks leading up to the discussion with her parents that gave rise to the charges being laid.

Her statements must be viewed in that light. [ 55 ] S.S.’s consistent and straightforward testimony that he did nothing like what he has been accused of, must be considered in the context of the other evidence. That denial, in the context of the real potential that the allegations against him were the product of a sustained environment of open suspicion, raises a reasonable doubt as to his guilt. [ 56 ] I find S.S. not guilty of the offences with which he has been charged.