R. v. D.D., 2020 ONCJ 102

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. D.D., 2020 ONCJ 102 DATE: 2020 02 14 COURT FILE No.: Brampton 3111 998 18 11123 BETWEEN: HER MAJESTY THE QUEEN — AND — D.D. Before Justice G.P. Renwick Heard on 03, 04, 05, 06, 07, and 11 February 2020

Reasons for Judgment released on 14 February 2020 D. Galluzzo............................................................................................ counsel for the Crown D. Gravesande and C. Fearon-Forbes.......................... counsel for the Defendant D.D. RENWICK J.: INTRODUCTION [1] The Defendant is charged with the following three counts: i. Sexual Assault, contrary to s. 271 of the Criminal Code; ii. Invitation to sexual touching, contrary to s. 152; and iii. Sexual Interference, contrary to s. 151.

The allegations are historical in that they are said to have taken place one to two years before they were reported to the police. [2] It is alleged that through the Defendant’s work at a local children’s centre he came into contact with a fourteen or fifteen-year-old female who was receiving counselling at the centre. The Defendant is alleged to have been the complainant’s caseworker for her on-going counselling.

In the course of and subsequent to the caseworker-client relationship, the Defendant is said to have developed apersonal association with the complainant that included text message communications and an attendance together at an amusementarcade, where it is alleged and subsequent to that, that he committed these offences. [3] This was a brief trial that took place over six days, however, evidence was only heard on three and one-half days. Thecomplainant, her mother, and her aunt testified for the prosecution.

The complainant’s child-youth-worker, who received the initialcomplaint, and the Defendant’s wife testified for the defence. [4] The only issue to decide is whether or not these allegations are proven, beyond a reasonable doubt. This involves determiningthe credibility and reliability of the witnesses. GENERAL PRINCIPLES [5] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonabledoubt.

Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial,unless and until the court is satisfied that the charges have been proven beyond a reasonable doubt. The prosecution’s burden of proofnever shifts during the trial.

In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that theprosecution has proven any single element of an offence charged beyond a reasonable doubt, and more specifically, if I have a reasonabledoubt that the Defendant committed an offence, he will be acquitted of the charge. [6] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logicallyderives from the evidence or the lack of evidence adduced during the trial.

While likely or even probable guilt is not enough to meet thecriminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there isno mathematical precision to proof beyond a reasonable doubt, but it lies much closer to absolute certainty than to proof on a balance ofprobabilities.[1] If after considering all of the admissible evidence, I am sure that the Defendant committed an alleged offence I mustconvict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt.

Likewise, if I am not sure, then I have areasonable doubt and an acquittal must follow. [7] This case involves conflicting evidence and credibility assessments. In assessing witness credibility and reliability I have takeninto account the general capacity of the witness to make their observations, to remember what they perceived, and their ability toaccurately testify to their recollections. It is also important to determine whether the witness was trying to tell the truth and whether ornot the witness was sincere, candid, biased, reticent, and/or evasive.

A trier of fact is entitled to accept some, none, or all of what awitness says while testifying. [8] A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said in thewitness box and what the witness has said on other occasions. I must also assess what is testified to in the context of all of the evidence inthe case and not on an isolated basis.

This is true for any inconsistencies and whether these are inconsequential or significant to the case.If the inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony. [9] Given the conflicting evidence in this case, I must apply the framework provided by the Supreme Court of Canada in R. v. W.(D.), (SCC), [1991] S.C.J. No. 26, as it is now understood. I rely heavily upon the

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

i) I cannot properly resolve this case by simply deciding which conflicting version of events is preferred;

(ii) If I believe evidence that is inconsistent with the guilt of the Defendant, I cannot convict the Defendant; (iii) Even if I do not entirely believe the evidence inconsistent with the guilt of the Defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt and the Defendant must be acquitted; (iv) Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and (

v) Even where I entirely disbelieve evidence inconsistent with guilt, the Defendant should not be convicted unless the evidence that is given credit proves the Defendant’s guilt beyond a reasonable doubt. [ 10 ] Lastly, I recognize that youthful witnesses or young adults who testify about events that occurred when they were children may testify differently than more mature witnesses. This is not to say that younger witnesses are deserving of special consideration, or, that their evidence should be scrutinized to a lesser degree than older adult witnesses.

Rather, “every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding, and ability to communicate.” [2] [ 11 ] In the next part, I will outline some of the evidence and provide an assessment of the testimony, with references to specific portions of the evidence.

Although I will not refer to all of what a witness said, I listened to each witness carefully, I have taken detailed notes, and I have assessed all testimony for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and the witness’ ability to recall and communicate. [ 12 ] I do not propose to recapitulate all of the evidence received during this trial. Suffice it to note that I have used ample and many opportunities during the trial and subsequent to the completion of the submissions to review my notes, and to listen to parts of the digital recordings of the proceedings.

I have thoroughly reviewed the evidence in this case, and I will only discuss parts of the evidence where it serves to underscore my findings. Lastly, I came to no conclusions about any of the testimony I heard until all of the closing submissions were made and my review of the evidence was complete. THE EVIDENCE AND FINDINGS OF FACT The Testimony of the Complainant [ 13 ] The complainant testified over three days (approximately one and one-half hours in examination-in-chief and approximately six hours in cross-examination).

For the most part, the complainant was forthcoming, credible, and consistent. [ 14 ] She told the court how the Defendant had offered to take her to Canada’s Wonderland and when the park was closed how they ended up, at her suggestion, at a local gaming arcade. It was during their time at the arcade when the complainant alleged that the Defendant sent his daughter and niece to go and play and then he asked her for a hug. She testified that she got up from the table, walked over and hugged the Defendant.

The complainant described that the Defendant remained sitting, that he opened his legs and hugged her while she stood between his open legs.

She claimed that he then talked to her, as if to draw-out the encounter, and she felt that he “prompted” her to sit on his lap. [ 15 ] After leaving the arcade, the complainant testified that they attended a full-service car wash and while they were outside waiting for his truck, the Defendant, in response to her comment that she needed to gain some weight, told her that she had a “nice shape,” she was “sexy,” and he put his hands around her waist. [ 16 ] The complainant was cross-examined at length about the circumstances surrounding the alleged incidents: how they got to the arcade; where they sat at the arcade, who was in the area, and where the games were located; what was communicated to the complainant’s mother and when; what was communicated to the complainant’s aunt and when; what the children watched at the Defendant’s home; how was it that the complainant’s mother arrived at the Defendant’s home to pick-up the complainant; and other details surrounding the arcade and car wash incidents. [ 17 ] I find that the complainant was honest and credible.

She did not overstate her recollections, she had a reasonable amount of detail in recounting the significant parts of her allegations, her testimony was consistent across her examination-in-chief and cross- examination, and she did not claim to remember every detail of her statement to the police, but the gaps or inconsistencies in her version of events (as between things she had told the police or others and her testimony) did not cause me to doubt her veracity respecting the substance of her allegations. [ 18 ] Counsel for the Defendant detailed at least 17 discrepancies, errors, or omissions in the complainant’s testimony: i.

The complainant testified about the various places where she met with the Defendant during his time as her caseworker; her memories did not accord with the narrative provided by her mother; ii. The complainant testified that when they would go to Tim Hortons for snacks, the Defendant would hold her hand; this happened twice, and included a trip when her mother was present; this was contrasted with her statement to the police that indicated this had happened four times and there was no mention that her mother was ever present; iii.

For the first time, while testifying, the complainant mentioned that while driving to the Defendant’s home at the start of the day

in question he held her hand in the truck; iv. The complainant did not remember telling the police that before the hug at the arcade the Defendant told her that she looked nice; v. It was an agreed fact that the complainant never told the police that the Defendant motioned with his hand for her to sit on his lap, although the complainant believed this is what she heard when this portion of her video statement to the police was played for her; vi.

According to the complainant’s mother’s testimony, the complainant never called or texted her from the arcade suggesting that she was uncomfortable and wanted to leave or get picked up; vii. Contrary to the hearsay evidence of her mother and the testimony of the Defendant’s wife, the complainant does not recall stopping at an ice cream store after leaving the arcade and before going to the car wash, or the fact that the Defendant’s wife met them there; viii.

The complainant allegedly told her mother that the Defendant’s daughter and niece were going to get their nails done; this was denied by the complainant, and disputed as highly unlikely according to the testimony of the Defendant’s wife; ix. The complainant testified that the Defendant paid for her to do her nails on one of her birthdays, but her statement to the police, which she adopted, revealed that the Defendant’s offer was refused and the call ended when he offered to be the complainant’s “sugar daddy;” x.

The complainant denied that the Defendant held her hand at the car wash, whereas in her statement to the police she indicated that the Defendant had asked her to hold his hand; xi. The complainant’s evidence about who she called (her mom or her aunt) to get her and how these calls went, was not confirmed by the testimony of these other witnesses; xii. The complainant’s testimony of what she told her aunt did not match what her aunt remembers; xiii. Counsel repeated point ix., above; xiv.

The complainant’s mother testified that the complainant had said that while she was at the Defendant’s house, he attempted to rub her feet, which the complainant did not recall happening; xv. The complainant testified that the “sugar daddy” remark occurred in the context of an invitation to go somewhere, and not as she had told the police, in relation to the invitation to do her nails for her birthday; xvi.

The complainant told her child-youth-worker that she did not want to report the incident because it was not a big deal and she refused to speak to the Children’s Aid Society about the allegations, but she spoke to the police and it was a big deal; and xvii.

There were discrepancies between when the complainant disclosed the allegations to her mother and how her mother first heard about the allegations, and whether her mother initially disbelieved her. [ 19 ] I have a great deal of difficulty accepting the Defendant’s submissions that the enumerated items should cause me to reject the entirety of the complainant’s evidence as not credible and unreliable, for several reasons. [ 20 ] First, only three of the items mentioned (iv., v., and x.) relate to the allegations, while the other items relate to peripheral matters surrounding the allegations.

I agree with the submission that the complainant’s evidence did not synchronize in every respect with things that she had said in the past, but where the matters were peripheral to the allegations, the differences did not suggest that the complainant was being deceitful. Instead, it seemed the case that the complainant’s memory has faded for the less significant details of the events in question.

Moreover, where the discrepant details were recounted by her mother or aunt, I am not satisfied that their memories are the appropriate yardstick by which to measure the complainant’s reliability, given the limitations of their evidence (second-hand) and their recollections. [ 21 ] Second, although the complainant told the police that before asking for a hug at the arcade the Defendant told her she looked nice, and she did not recall that happening while testifying, that does not cause me to doubt what she says occurred.

The complainant was able to provide many details about the timing, the location, the surroundings, the duration, the Defendant’s positioning, and her positioning while describing the hugging incident. At all times, her version was consistent, uncontradicted by other evidence, and plausible. The complainant did not exaggerate the incident, the level of touching, or the way it made her feel throughout the several times she recounted the event.

If anything, the fact that the complainant did not testify that the Defendant complimented her about her physical appearance is something that adds a level of neutrality to the hug, which reduces any apparent sexuality in the overall context.

The complainant never denied having told the police that the remark was said, only that she did not recall the Defendant having said it, and I found this explanation entirely credible. [ 22 ] Third, in respect of item v. above, the fact that the complainant believed that she heard herself say something in the video statement that nobody else in the court heard her say, does not establish that her testimony about the arcade incident is unworthy of belief. Strangely, the transcript of the complainant’s video statement was also inaccurate, in the exact same way.

This may well explain the complainant’s evidence – the transcript has influenced her memory. In the end, I find that this part of the complainant’s testimony was an artefact of the question she was asked in cross-examination and the error in the transcript of her video statement. It does not cause me to doubt her evidence about what occurred at the arcade. [ 23 ] Fourth, the evidence of an alleged inconsistency in the complainant’s testimony respecting whether or not the Defendant held her hand at the car wash is ambiguous.

The complainant testified that the Defendant did not hold her hand at any point while they were

at the car wash. In her statement to the police, the complainant had said that the Defendant had asked her to hold his hand while they were there. Given that her prior statement is entirely silent on whether or not any hand-holding actually took place, I am not satisfied that this evidence impeached the witness in any way. [ 24 ] Fifth, respecting the car wash incident, the substance of the complainant’s allegation was largely unchallenged during these parts of her cross-examination. [ 25 ] I have considered all of the Defendant’s submissions about the deficiencies in the complainant’s testimony.

I paid particular attention to the complainant while she testified. Indeed, in several cases, I corrected the cross-examiner when the question did not fairly re-iterate the evidence she gave.

I find that the alleged inconsistencies, deficiencies, omissions, and variations in the complainant’s version of events were reasonable, the likely product of fading or changing memory, and honestly held rather than attempts to colour the evidence in a particular way or to achieve a particular result. [ 26 ] The complainant testified at all times in a reasonable way with appropriate pauses for reflection and care in responding to a difficult and lengthy cross-examination. That is not to suggest that the complainant was a perfect witness. She was not.

However, perfection while testifying is neither expected nor realistic. If anything, there were times when the complainant appeared to have testimonial fatigue. [ 27 ] For example, on one occasion the complainant put her head down on the top of the witness box. At another point, the complainant asked for a recess but could not give a reason why she wanted one beyond reciting that she had been told that she could ask. When I denied the request, she said she could not answer the next question. I sensed her frustration with the cross-examination and permitted a short recess.

Upon her return, she was able to answer the questions put to her in an apparently meaningful way. [ 28 ] The complainant testified in a simple, frank, and unadorned manner that appeared truthful. She demonstrated patience and restraint during her cross-examination and there was a level of balance to her evidence. For example, the complainant readily agreed in cross-examination that the Defendant had offered support to her and her mother in his professional capacity.

And although the complainant did not recall the Defendant’s follow-up telephone calls to check-in on her, I did not take her evidence to suggest that he did not show genuine concern for her well-being at all times. [ 29 ] Lastly, the cross-examination revealed an aspect of the complainant’s character that supports her account. The complainant appears to be a passive person who does not respond overtly when she is confronted, challenged, or made to feel uncomfortable. [ 30 ] While coming to this conclusion I have cautioned myself that people are not always as they appear.

I do not personally know the complainant or how she reacts to stressors outside of the courtroom. However, I observed her presentation over an extended period of time (more than two full-days), under trying circumstances. She did not raise her voice or appear argumentative with defence counsel, although she was observably tired and likely frustrated at various points. The complainant did ask the court why counsel for the Defendant spoke the way he did.

However, I cannot say that the question was completely impertinent or irreverent given the florid manner of her cross-examination. [3] [ 31 ] In the end, the complainant’s mild, almost timid, temperament supports an aspect of her evidence: While the Defendant’s alleged behaviour made her uncomfortable, the complainant did nothing to protest, make her discomfort known, or call attention to what she found objectionable. [ 32 ] I find that the Defendant asked the complainant for a hug at the arcade. I specifically find that he remained seated and opened his legs for her to come close enough to be hugged.

I also accept the complainant’s evidence about the substance of her claims at the car wash. I find that the Defendant commented that she had a “nice shape,” she looked “sexy,” and when he made these comments, he put his hands around her waist for 15-30 seconds. The Testimony of the Complainant’s Mother [ 33 ] The complainant’s mother testified in a largely unhelpful way.

She had a very poor recollection of things, several times she did not answer the question she was asked, she answered many questions by saying, “I think,” and most importantly, she was not a witness to any of the allegations. [ 34 ] In the end, with one exception, I do not place much reliance or weight on the testimony of the complainant’s mother. I accept that the complainant may have told her mother that the Defendant tried to rub her feet while they were at his house. The complainant specifically denied ever telling her mother this or that it ever happened.

This is a significant contradiction in the complainant’s version of events, which is largely irreconcilable. Accepting that this was said by the complainant, I infer that this likely happened before the trip to the arcade. The complainant testified that she was at the Defendant’s house initially before they went to the arcade.

It is possible that the incident was fleeting and insignificant and although the complainant apparently told her mother about it later that night, in light of what the complainant says the Defendant did that day, an unfulfilled request made much earlier in the day may have left her memory. [ 35 ] Where her mother’s evidence contradicted the complainant’s testimony respecting the timing of events, the content of things she had learned from her daughter or others, or her accounts of their contact with the Defendant, I am not satisfied that this witness’ limited recollection is worthy of belief. [ 36 ] Similarly, I am not prepared to rely on the complainant’s mother’s testimony to corroborate any of the complainant’s evidence.

The Testimony of the Complainant’s Aunt [ 37 ] The complainant’s aunt testified in an apparently neutral way. Her evidence was limited to her second-hand knowledge from her niece, the complainant. Although her evidence did not suffer from the same defects as the complainant’s mother’s testimony, I find that this evidence did not assist me to determine the credibility or reliability of the complainant on the material parts of her testimony. Accordingly, although I found that this witness was believable and reliable, I do not give her evidence much weight.

The Testimony of the Complainant’s Child-Youth-Worker [ 38 ] This witness was called by the Defendant. After a significant period of time, when I questioned the purpose of introducing the complainant’s hearsay statements through this witness, the Defendant withdrew the tender of this evidence. The witness was not cross- examined. I have come to no conclusions about the truth of this evidence, nor have I relied upon it in any way in deciding this case. The Testimony of the Defendant’s Wife [ 39 ] The wife of the Defendant testified for the defence. For the most part, this witness seemed nervous and tentative.

I had the impression that her presentation suffered as a result of her nerves, rather than an intention to mislead. [ 40 ] The Defendant’s wife testified that she had met up with the Defendant and the group of children after they had attended at the arcade and before they had gone to the car wash.

Her evidence contradicted the complainant’s evidence that the two had never met and that they specifically had not met that day. [ 41 ] There were two areas of the Defendant’s wife’s evidence which were puzzling. [ 42 ] I found it odd that she testified that she was at home when the group returned after the day’s events. The complainant testified that nobody else was at the Defendant’s home when they returned.

The Defendant’s wife testified that she did not see the complainant at the family home, nor did she see the complainant’s mother who arrived to pick up the complainant, nor was she seen by her either. [ 43 ] I have no reason to doubt this witness’ evidence, although it struck me as odd that she did not acknowledge the group when they returned to the home, she remained upstairs over the entire time the complainant was in the house (approximately two hours), despite that her daughter and niece were on the main floor with the complainant, she was apparently silent or quiet enough that the complainant was unaware that she was upstairs, and she did not greet the complainant at any point, or the complainant’s mother when she arrived. [ 44 ] The second area of her evidence that I found concerning was her insistence that the Defendant would not have offered to take the children to have their nails done, because her daughter and niece were too young at the time, and he would only ever make such an offer after discussing the matter with her.

This evidence contradicts the complainant’s mother’s evidence in cross-examination that the Defendant told her that he was taking the girls to get their nails done. [4] To a small extent, this evidence was also contradicted by the complainant’s evidence that the Defendant offered to get their nails done at the strip mall they attended after the car wash. [ 45 ] These two parts of the Defendant’s wife’s testimony did not cause me to doubt her truthfulness that she met up with the group at the ice cream shop that afternoon.

Although the complainant did not remember having attended the ice cream shop, or ever having met the Defendant’s wife, I accept that this occurred.

Given that nothing of significance from the complainant’s perspective happened while eating ice cream, this evidence does not cause me to doubt the other parts of the complainant’s evidence which I accept. [ 46 ] As well, I accept the Defendant’s wife’s testimony that she heard her husband call downstairs to the complainant, presumably to discuss the arrangement for the complainant’s departure, but as nothing untoward actually occurred at the Defendant’s residence, this evidence did not affect the complainant’s credibility or reliability. DISCUSSION [ 47 ] Sexual assault is a crime of general intent.

It has been described by the Supreme Court of Canada in the following way: Sexual assault is an assault within any one of the

definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer" ( Taylor, supra , per Laycraft C.J.A., at p. 269).

The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant (see S.J. Usprich, "A New Crime in Old Battles: Definitional Problems with Sexual Assault" (1987), 29 Crim. L. Q. 200, at p. 204.) The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual.

If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances. [5] [ 48 ] The complainant testified that the Defendant hugged her as a greeting or to part, whenever they saw each other.

She testified that this was not unusual. [ 49 ] In the end, I do not find that the hugging incident was sexual in nature. [ 50 ] I find that the hug at the arcade made the complainant uncomfortable. I find that the Defendant sent the two younger children away because he wanted to have a discussion with the complainant. Speaking alone to check-in with the complainant was not unusual for their relationship. I find that the Defendant opened his legs as the complainant approached, which resulted in her standing in between them.

I find that the Defendant prolonged this interaction by talking to the complainant, which had the effect of making the complainant even more uncomfortable. [ 51 ] Although hugging had been a frequently employed greeting between the complainant and the Defendant, I find that this occasion seemed different to the complainant.

The hug was not immediate, when they first met that day, but it was initiated by the Defendant’s comment that he did not get his usual hug. [ 52 ] However, I cannot find beyond a reasonable doubt that the Defendant intended to assault the complainant or to violate her sexual integrity in any way. Likewise, I am unable to find that the Defendant intended to touch the complainant (by hugging her) for a

sexual purpose. [ 53 ] Given the evidence, I am unable to conclude beyond a reasonable doubt that the Defendant opened his legs so that the complainant would stand between them.

The complainant was clear that she could not say what part of her body contacted what part of the Defendant’s body, or that there was any contact with the Defendant’s opened legs. [ 54 ] In the result, although I find that the context of this hug was inappropriate in the sense of having a teenaged girl standing in between the legs of a man who is her counselling caseworker, I do not find that the context of this interaction was objectively sexual in nature or that the Defendant had intended or caused the complainant’s sexual integrity to become violated. [ 55 ] Similarly, I do not find that the Defendant intended to make the complainant sit on his lap.

The raised chair in which he sat and their location in an occupied area of the arcade makes it highly unlikely that the Defendant was trying to nudge or prompt the complainant to sit on him. [ 56 ] On all of the evidence, I do not conclude that there was anything said or done by the Defendant to sexualize the context of the hug with the complainant that day. Instead, I find that the complainant was a typical teenager whose emotions and sensitivities relating to personal space and self-esteem influenced her

interpretation of this event. [ 57 ] The touching at the car wash is different. The complainant spoke about her body and her desire to gain weight. I conclude that the Defendant told the complainant that she had a “nice shape” and she was “sexy.” I further conclude that the Defendant put his hands around the complainant’s waist and held them there for 15-30 seconds. [ 58 ] There was no evidence of the Defendant’s intention when this occurred. [ 59 ] I find that the Defendant’s words and actions sexualized an innocent discussion about the complainant’s body image. The touching was neither fleeting nor trivial.

It was completely unwanted and undeserved. This touching involved both of the Defendant’s hands, placed on the complainant’s waist, which is not a part of another’s body one would normally touch without their permission. The touching lasted for an extended period of time.

This intentional activity had the effect of violating the complainant’s sexual integrity. [ 60 ] I am satisfied beyond a reasonable doubt that the Defendant intended to touch the complainant in a manner that sexualized this assault in all of the circumstances. [ 61 ] There remains some residual doubt whether the Defendant intended to touch the complainant for a sexual purpose, although the touching was intentional and the context became sexual in nature. [ 62 ] I have resolved that doubt in the Defendant’s favour.

CONCLUSION [ 63 ] In respect of the hug at the arcade, I have a reasonable doubt that the evidence established an invitation to sexual touching. The Defendant is acquitted of count 2 of the Information. [ 64 ] In respect of the touching at the car wash, I find D.D. guilty of sexual assault (count 1) and not guilty of sexual interference (count 3 of the Information). Released: 14 February 2020 Justice G. Paul Renwick