R. v. M.K., 2023 ONCJ 16

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED--

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED--

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. NO SUBSEQUENT DISCLOSURE -- No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. OFFENCES -- Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. M.K., 2023 ONCJ 16 DATE: 2023 01 12 COURT FILE No.: Halton Info # 20-Y- 122 B E T W E E N : HIS MAJESTY THE KING

— AND — M.K. Before Justice Jennifer Campitelli Heard on November 7, 8, 9 and December 9, 2022 Reasons for Judgment released on January 12, 2023 S. Wollaston ......................................................................................... counsel for the Crown R. Patel ..................................................................................... counsel for the accused M.K. PUBLICATION RESTRICTIONS NOTICE A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code .

By order of this court, any information that could identify the Complainant shall not be published in any document, broadcast or transmission. CAMPITELLI J.: [ 1 ] M.K., a young person within the meaning of the Youth Criminal Justice Act, faces three counts, as amended on the information before me. That she:

(1) Between the first day of April in the year 2019 and the 19 th day of August in the year 2020 (both dates inclusive) at the Town of Halton Hills in the said Region, did commit a sexual assault on C.B. contrary to

section 271 of the Criminal Code of Canada ;

(2) Between the 1 st day of April in the year 2019 and the 19 th day of August in the year 2020 (both dates inclusive) at the Town of Halton Hills in the said Region, did, for a sexual purpose, touch C.B. a person under the age of sixteen years directly with a part of her body, to wit; her genitalia, contrary to

section 151 of the Criminal Code of Canada ;

(3) Between the 1 st day of April in the year 2019 and the 19 th day of August in the year 2020 (both dates inclusive) at the Town of Halton Hills in the said Region, did for a sexual purpose invite C.B. a person under the age of sixteen years to touch directly with a part of his body to wit; his mouth, the body of M.K., contrary to

section 152 (

a) of the Criminal Code of Canada . Factual Background [ 2 ] C.B. and his younger sister, P.B. attended the home of M.K. as they were cared for by her mother, A.K. It is agreed by all parties that the children would attend M.K.’s bedroom at times, where they would be permitted to use her electronic devices. C.B. alleges

that while spending time in M.K.’s bedroom, he sucked on her breasts and he placed his private parts inside of her private parts. He did this while thrusting his hips. C.B. alleges that he performed these acts in exchange for M.K. allowing him to use her phone. [ 3 ] Moreover, in addition to the times where C.B. and P.B. attended M.K.’s residence for care, there were also times when M.K. attended C.B and P.B.’s home to look after them.

C.B. alleges that during these times, he and M.K. would attend the bedroom located on the main floor, where he would perform the very same acts he alleges occurred in M.K.’s bedroom. The Evidence of L.M. [ 4 ] L.M. is the mother of both C.B. and P.B. L.M. testified that she employed M.K.s mother, A.K., for two years as an in-home daycare provider for her two children. During the COVID-19 pandemic, there was a period of time commencing in April of 2020, when A.K. closed her daycare due to health and safety concerns.

A.K. re-opened her daycare in August of 2020; however, all parties agree that both A.K. and M.K. provided additional care for P.B. and C.B. in June of 2020. [ 5 ] L.M. testified that in June of 2020, C.B became very upset at bedtime and disclosed to her that he and M.K. had a secret. When pressed, he disclosed that he “touches M.K.’s boobs”. L.M. recalled that she really wasn’t sure what to make of the disclosure, so she allowed C.B. to remain in the care of A.K. and M.K.

However, she explained to C.B. that “touching was not ok” and that “if he felt uncomfortable or if he was asked to do something, to say no and to always be with P.B.” [ 6 ] In August of 2020, L.M. testified that while picking up C.B. and P.B., in the driveway at A.K.’s residence, C.B. disclosed the entirety of the allegations before the court. It was at that point that L.M. removed the children from A.K.’s care and the Halton Regional Police Service became involved. [ 7 ] L.M. testified in a direct and straightforward manner. I found her to be a credible witness.

Much of L.M.’s evidence is uncontradicted and I find it reliable. Having said that there is one area of L.M.’s evidence, which is inconsistent with both A.K. and M.K. L.M. testified that after C.B. had disclosed that he and M.K. had a secret in June, but before he disclosed that he “touches M.K.’s boobs”, she spoke with A.K. It was L.M.’s evidence that she did not speak to M.K. directly; rather, she asked A.K. to inquire with M.K. about the possibility of secret existing between the pair. Both A.K. and M.K. testified that L.M. spoke with M.K. directly.

I accept their evidence on this point for the following reasons:

(1) L.M. and M.K. had their own relationship, both personal and professional, as M.K. provided babysitting for C.B. and P.B.;

(2) A.K. and M.K. were consistent about this detail and it is non- contentious;

(3) M.K.’s evidence about this conversation was very detailed; and

(4) I find that it is reasonable in all the circumstances of the relationship that existed between M.K. and L.M. at the relevant time that, if L.M. had an inquiry that related to M.K., she would have addressed it with M.K. directly. [ 8 ] In coming to this conclusion, I do not find L.M. intentionally misled the court. I have simply reached the conclusion that this aspect of her evidence was not reliable. Memories fade over time and, as I indicated, this was a non-contentious, peripheral area of the evidence overall.

The Evidence of P.B. [ 9 ] In addition to the viva voce evidence of P.B., a videotaped statement P.B. provided to the police on August 20, 2020 was entered as evidence with the consent of both parties pursuant to

section 715.1 of the Criminal Code of Canada and marked as Exhibit #2.

[ 10 ] P.B. was a very young witness, just seven years old when she provided evidence to the court; however, she was an impressive witness. She was responsive, attentive and I found her evidence to be both credible and reliable. P.B. provided her evidence with confidence and candour. [ 11 ] P.B. testified that while under the care and supervision of A.K., her and C.B. would attend M.K.’s room to play with her electronics. In particular, P.B. enjoyed using M.K.’s phone to watch slime videos on YouTube. P.B. recalled that she would go into M.K.’s closet to watch her videos.

She described the closet as not having a door, having a light, and having blankets and pillows where she sat. P.B. testified that it was M.K.’s idea for her to watch her videos in the closet so “like, maybe we can all have alone time sometimes.” Crown counsel argued that this aspect of P.B.’s evidence suggested M.K was creating a “window of opportunity” for the alleged offences to take place. Respectfully, I disagree. The allegations do not involve M.K. engaging in anything alone or where she was not readily accessible to P.B.

Therefore, I find that M.K. encouraging them to have “alone time” is actually more consistent with M.K.’s evidence. [ 12 ] P.B. testified that she was not able to see M.K. and C.B. on M.K.’s bed. She recalled that she could hear them; however, she could not recall anything she may have heard specifically.

P.B. also remembered playing with LEGO on the floor with C.B. in M.K.’s room; moreover, according to P.B., there were times when all three parties were on M.K.’s bed together. [ 13 ] It was P.B’s evidence that, if she needed help with M.K.’s phone, she would just go over to where M.K. was and ask her for assistance. She did not recall M.K. ever asking her to wait. Rather, it was P.B.’s evidence that M.K. would simply take the phone from her and fix it. [ 14 ] P.B. testified that while they were in M.K.’s room, the door remained open.

She also clearly remembered A.K. checking-in on her and C.B. while they spent time in M.K.’s room. It was P.B.’s evidence that both M.K. and C.B. were always wearing clothes while they spent time in M.K.’s room. She recalled that, while M.K. and C.B. were on the bed together, they remained on top of the covers. [ 15 ] Finally, P.B. testified that when M.K. was at their home babysitting, she allowed her and C.B. to watch T.V. Specifically, P.B. recalled that M.K. allowed them to watch “Alvin and the Chipmunks”. Moreover, P.B. recalled that M.K. permitted her and C.B. to play outside.

She was even able to recall that they played in the front yard as opposed to the backyard, and that they played soccer. The Evidence of C.B. [ 16 ] In addition to the viva voce evidence of C.B., a videotaped statement C.B. provided to the police on August 20, 2020 was entered as evidence with the consent of both parties pursuant to

section 715.1 of the Criminal Code of Canada and marked as Exhibit #1. [ 17 ] C.B. experienced some difficulty placing these allegations within the context of the COVID-19 pandemic. However, sometime between April 1, 2019 and August 19, 2020 C.B. testified that, on more than five occasions, he would touch and put M.K.’s breasts in his mouth. C.B. also testified that he would put his privates into M.K.’s privates. When asked to show us what he meant by “privates”, C.B. pointed to the area of his genitals. When asked what he meant by M.K.’s privates, C.B. again pointed towards the genital area of his body.

C.B. recalled that these acts would occur in M.K.’s room, while the pair were under the covers and while he was simultaneously playing a video game on M.K.’s cell phone. It was C.B.’s evidence that these acts also took place in the main floor bedroom of his personal residence, while M.K. provided babysitting. It was difficult given all of the evidence heard to determine who the bedroom on the main floor belonged to, given C.B.’s difficulty in placing these allegations within the context of the COVID-19 pandemic.

In my final analysis, I found this of little consequence. [ 18 ] Specifically, with respect to the acts described as occurring in M.K.’s bedroom, it was agreed by all parties that P.B. would have to have been present. Moreover, there was no disagreement that M.K.’s door remained open at all times, and that the acts alleged would have occurred during daylight hours.

With respect to the acts, which are alleged to have occurred at C.B.’s personal residence, C.B. was able to place P.B. in a room nearby; however, not in the same room as himself and M.K. [ 19 ] C.B. testified that while these acts were occurring, M.K. removed all of her clothes and he removed his pants. Neither party spoke; however, C.B. knew what to do because he recalled that, “at first she told me”. These acts did not take place every time C.B. and P.B. attended M.K.’s bedroom; however, when they did occur, it was C.B.’s evidence that they would happen the whole time he was in

M.K.’s room. [20] Given P.B. was also present, it was C.B.’s evidence that, should P.B. require M.K.’s assistance with her electronic device, M.K.would tell P.B. “one minute”, quickly put her clothes back on, and assist P.B. Of note, P.B.’s evidence is not corroborative of this aspectof C.B.’s evidence. [21] Prior to reviewing C.B.’s evidence, I want to be very clear that I have considered the evidence of this witness reminding myselfthat he is a young child. C.B. was eight years old when he provided his evidence to the court.

I am mindful that the evidence of childrenis not considered to be inherently unreliable, nor is it to be treated with any special caution: R .v. W.(R.) [R.W.] (SCC),[1992] S.C.J. No. 56 at para. 23 (SCJ). Moreover, I fully appreciate that, in my assessment of C.B.’s evidence, I need to be sensitive tothe peculiar perspective of children. I understand that, since children experience the world differently than adults, details like time andplace may be missing from their recollection: R .v. W.(R.) [R.W.] supra at para. 24.

With that in mind, I have given no weight to the factthat C.B. had difficulty placing these allegations within the context of the COVID-19 global pandemic. COVID-19 turned the concept oftime on its head for adults never mind children. The distinction between weekends and weekdays vanished, regular routines weredisrupted, and abnormal quickly became the new normal across the globe.

Any inconsistency surrounding C.B.’s ability to frame theseallegations around the COVID-19 pandemic is understandable given the circumstances generally and specially, given he is a youngchild. [22] I have carefully reviewed C.B.’s evidence keeping in mind all of the relevant considerations, which I must. Making everyreasonable allowance for the age of the complainant and the passage of time; overall, I found C.B.’s evidence troubling.

It was riddledwith inconsistencies; areas directly conflicted with the evidence of P.B., and aspects of C.B.’s evidence seemed implausible. [23] C.B.’s evidence was in direct conflict with the evidence of his sister, P.B. in the following areas:

(1) C.B. testified that, while he was in M.K.’s room, A.K. never came up to check on the children. Of note, P.B.’s evidence wascorroborated by A.K.’s evidence on this point;

(2) C.B. testified that, while he and M.K. were engaging in the acts alleged, if P.B. required any assistance from M.K. with herelectronic device, M.K. would tell P.B. “one minute” and P.B. would then wait for M.K. to attend to her. While P.B. was waiting forhelp, M.K. would have time to quickly put her clothes back on;

(3) C.B. testified that the alleged acts occurred while he and M.K. were under the covers. It was P.B.’s evidence that, whileM.K. and C.B. were on the bed together, they remained on top of the covers;

(4) It was C.B.’s evidence that when M.K. babysat the children were not allowed to play outside. They didn’t play in the frontyard and they didn’t play in the backyard; and

(5) C.B. testified that when M.K. babysat the children at their home, they were not permitted to watch TV. [24] I find P.B.’s evidence on these points of conflict to be reliable and I accept it. P.B.’s evidence was detailed and reasonable. Sherecalled the specific nature of programming the children watched when M.K. babysat at their home, P.B. remembered playing in thefront yard as opposed to the backyard, and A.K. corroborated P.B.’s evidence about her checking in on the children.

Finally, I foundP.B.’s evidence surrounding simply attending to M.K. when she required assistance with the electronics was consistent with reason andcommon sense. [25] In addition, there were areas of C.B.’s evidence that I found completely implausible. In particular:

(1) That the alleged acts would happen the whole time that C.B. was in M.K.’s bedroom;

(2) That neither M.K. nor C.B. said anything while the alleged acts were happening;

(3) That, while underneath the covers, C.B. would be able to suck on M.K.’s breasts, and insert his privates into her privates while simultaneously playing his video game on her electronic device; and

(4) That at any point in time, given C.B.’s evidence surrounding how these alleged acts were taking place, C.B. could ever have been laying on top of M.K. [1] The Evidence of A.K. [ 26 ] A.K. is the mother of M.K. and provided childcare services for both C.B. and P.B. She testified that she began caring for the children when C.B. was as young as two years old and P.B. was only a year. A.K. opened her daycare in the fall of 2009 and closed it after these allegations came to light. [ 27 ] A.K. testified that M.K. was present at her home daycare since it opened in 2009.

She recalled that M.K. had a good relationship with C.B. and P.B. and the children would ask to visit M.K. in her room at times. A.K. testified that they would have to ask M.K.’s permission and that P.B. would do that prior to the children attending. [ 28 ] It w as A.K.’s evidence that she would check on the children when they were in M.K.’s room occasionally, which is something that P.B. also recalled.

A.K. testified that M.K.’s door was always open when the children were in her room, and that the house was small, so it was easy to hear conversations. [ 29 ] A.K. recalled a call from L.M. where she wanted to speak with M.K. about something that related to C.B. She testified that she gave the phone to M.K. and L.M. addressed the issue with her directly. Following the phone call, A.K. recalled asking M.K. what it was all about and M.K. responding, “I don’t know”. [ 30 ] A.K. testified that M.K. was a typical teenager for the most part; but she suffered from anxiety and depression.

A.K. recalled that the pandemic was difficult on M.K., as it was for most teenagers. A.K. noticed a “sadness” and observed that M.K. was sleeping more than normal. The Evidence of M.K. [ 31 ] M.K. provided her evidence in a straightforward manner. She was clear and candid in her responses. Overall, there was a genuineness in the way M.K. testified about these allegations. I found her to be a credible witness and her evidence to be reliable. [ 32 ] M.K. testified that she became acquainted with C.B. and P.B. during the time A.K. provided childcare services for them.

She recalled, at times, they would attend her room for fifteen minutes or a half an hour. During those times, they would bring LEGO or other toys to play with. M.K. had a rubber duck collection that they liked, and she also had beads in her room that P.B. would use to make bracelets. In addition, M.K. had two phones that the children would use at times while they spent time in her room. M.K. testified that P.B. liked sitting in her closet or at the foot of her bed.

It was M.K.’s evidence that C.B. would sit on the floor or at the foot of her bed. [ 33 ] When this area of M.K.’s evidence was explored under cross examination, specifically, whether or not the children were allowed to be near the top of the bed, I found M.K.’s response to be very telling. M.K. testified that she did not “want them near her pillows or anything”. She explained, “I’m just kind of, like, about germs and stuff, so I don’t want anything near my face…that they could touch”.

I approach the demeanour of any witness with the necessary caution, realizing that individuals all experience the court process very differently. However, when M.K. provided this part of her evidence, she withdrew within herself and genuinely expressed aversion. It was as though she was picturing the thought of the children close to her pillows as she sat before me in the witness box, and her physical reaction to that thought was notable. It was also corroborative of her evidence overall.

[34] M.K. testified that she provided childcare for C.B. and P.B. at their personal residence. Activities the children engaged in whileunder her supervision included toys, TV, and they played on their own electronic devices. It is M.K.’s evidence that the children did notuse her electronic devices while she was caring for them at their home. [35] M.K. recalled L.M. contacting her about a “secret” that C.B. told her existed between himself and M.K. L.M. told M.K. that hewasn’t able to sleep because of it; however, M.K. testified that she simply “didn’t know” what C.B. was talking about.

It was M.K.’sevidence that she got the phone from A.K. that day, which is consistent with A.K.’s evidence on this point. [36] M.K. specifically denies these allegations. She testified that she did not ask C.B. to suck on her breasts in exchange for using herelectronic device, she did not ask him to lie down on top of her and thrust his pelvis while they both were naked, and she never askedC.B. to remove his clothing in front of her. Simply put, what is alleged by C.B. never happened.

What is alleged didn’t happen while thechildren were spending time in her room, nor did it take place while she provided childcare for C.B. and P.B. at their personal residence. Position of the Parties The Crown: [37] The crown stresses that, simply because these allegations seem peculiar, it doesn’t mean that the events as described by C.B. didnot take place.

The crown asks me to consider the evidence of C.B., within the proper context, reminding myself that he is a young child.It is the theory of the crown that M.K. placed P.B. in her closet to create a window of opportunity for the allegations as described by C.Bto take place. The crown submits I should not believe M.K., nor be left in a doubt by her evidence. Moreover, it is the position of thecrown that the evidence of C.B. is both credible and reliable. I should accept it and based on the evidentiary record as a whole, I shouldbe satisfied beyond a reasonable doubt of M.K.’s guilt.

The Defence: [38] The defence reminds me that, notwithstanding I must approach the evidence of C.B. with the applicable law in mind, given thathe is a young child, there is no reduction in the standard of proof. The defence stresses the inconsistencies in the evidence of C.B.,particularly in light of the evidence of P.B., must be considered in their totality. Moreover, it is the position of the defence that aspects ofC.B.’s evidence are completely implausible.

The defence argues that, even if M.K.’s evidence is rejected and does not leave me inreasonable doubt, it would be dangerous for me to find M.K. guilty given the evidence presented by the crown. Analysis The Legal Framework: [39] Given that M.K., the defendant, has provided evidence, the framework set out in R .v. W(D.) (SCC), [1991]S.C.J. No. 26 applies. Specifically, the test outlined at paragraph 28:

(1) If I believe the evidence of M.K., obviously, I must find her not guilty;

(2) Second, even if I do not believe the testimony of M.K., but I am left in reasonable doubt by it, I must find her not guilty;

(3) Finally, even if I am not left in doubt by the evidence of M.K, I must ask myself whether on the basis of the evidence whichI do accept, if I am convinced beyond a reasonable doubt by that evidence of the guilt of M.K. [40] In turning my mind to the analysis I must engage in, I have also reviewed the

article written by Paciocco J.A. entitled, “Doubtabout Doubt: Coping with W.(D.) And Credibility Assessment” found at 2017 22 Canadian Criminal Law Review 31. In that article,Justice Paciocco helpfully breaks down the W.(D.) principles into five analytical points:

a. Criminal trial cannot properly be resolved by deciding which conflicting version of events is preferred; b. A criminal fact-finder that believes evidence that is inconsistent with the guilt of the accused cannot convict the accused; c. Even if a criminal fact-finder does not entirely believe evidence inconsistent with guilt, if the fact-finder is left unsure whetherthat evidence is true there is a reasonable doubt and an acquittal must follow; d. Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does notprove guilt; and e.

Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless theevidence that is given credit proves the accused guilty beyond a reasonable doubt. [41] I have reminded myself that the complainant in this matter is a child. In my final analysis, I found Justice Hill’s review of theapplicable law in R .v. B.B. [2009] O.J. No. 2991 was both informative and instructive. In particular, paragraphs 60-63: 60 The testimony of a youthful witness cannot be said to be inherently unreliable.

Otherwise, a negative stereotype improperlysupplants abolition of the corroboration rule in the testimonial competence regime. The testimony of a young witness is to be understoodwith an eye to common sense as exactitude and detail may be missing from a child's recall as the world is experienced differently from anadult: B.(G.) v. The Queen (1990), (SCC), 56 C.C.C. (3d) 200 (S.C.C.) at 219-220 per Wilson J.; Marquard v. TheQueen (1993), (SCC), 85 C.C.C. (3d) 193 (S.C.C.) at 201 per McLachlin J. (as she then was); R. v. H.C. (2009), 2009ONCA 56 , 241 C.C.C. (3d) 45 (Ont.

C.A.) at para. 42. 61 The court's common sense approach may require caution in accepting the youthful witness' testimony taking into account thestrengths and weaknesses of the particular witness' evidence in the context of a specific case: Marquard v. The Queen, supra 221-3 perMcLachlin J.; The Queen v. W.(R.) (1992), (SCC), 74 C.C.C. (3d) 134 (S.C.C.) at 142-4 per McLachlin J.; R. v. Keeper,[2000] O.J. No. 1407 (C.A.) at para. 4 per curiam; R. v. Reekers, [1999] O.J. No. 3415 (C.A.) at para. 1 per curiam; R. v. Stephen (D.),[1996] O.J.

No. 441 (C.A.) at para. 3 per curiam. 62 As a general rule, children will have a better and more accurate recollection of events shortly after they occurred than they will someweeks, months or years later: R. v. F.(C.C.) (1997), (SCC), 120 C.C.C. (3d) 225 (S.C.C.) at 233-4. Where a childwitness at trial adopts an out-of-court statement admissible pursuant to s. 715.1 of the Code, but has no independent memory of theevents, a special warning, like a Vetrovec caution, is admissible as to the dangers of convicting on the videotape alone: R. v.

F.(C.C.), at241. 63 Whatever enlightened approach is taken respecting a child's ability to perceive and recall, the standard of proof cannot be reducedbelow that of cases involving adults: B.(G.) v. The Queen, supra at 219; The Queen v. W.(R.), supra at 143; R. v. Markell, [2001] O.J.No. 1813 (C.A.) at para. 1-2 per curiam; R. v. Keeper, supra at para. 4. Conclusion [42] I have considered the evidence of M.K. within the context of the complete evidentiary record, which has been put before me. Ibelieve her. M.K.’s evidence flowed logically, was reasonable and had a genuine “ring of truth” to it.

I believe that she did not ask C.B. tosuck on her breasts in exchange for playing on her electronic device, I believe that, at no time did C.B. thrust his genitals into her genitalsin exchange for playing on her electronic device. I accept M.K.’s evidence, specifically, that what is alleged by C.B. never took place. [43] In the result, M.K. is found not guilty as charged.

Released: January 12, 2023 Justice Jennifer Campitelli