R. v . D.J.M., 2012 NSSC 84

SUPREME COURT OF NOVA SCOTIA Citation: R. v . D.J.M., 2012 NSSC 84 Date: 20120224 Docket: CRH 344337 Registry: Halifax Between: Her Majesty the Queen Plaintiff v. D. J. M. Defendant Editorial Notice Identifying information has been removed from this electronic version of the judgment. Restriction on publication: Section 486(3) of the Canadian Criminal Code Judge: The Honourable Justice Felix A. Cacchione Heard: February 20-23, 2012, in Halifax, Nova Scotia Written Decision: February 28, 2012 Counsel: Alicia Kennedy and Perry Borden, for the Crown Cameron Rhindress, for Mr. M. By the Court : (Orally)

By the Court : (Orally) [ 1 ] We are here for the decision in the Queen and M.. [ 2 ] Mr. M. was originally charged with two offences. One contrary to s.152 of the Criminal Code , that is that he did on or about the 5 th day of August 2010 at or near Dartmouth, in the County of Halifax, Province of Nova Scotia did for a sexual purpose invite M. B., a person under the age of 14 years, touch directly a part of his body to wit; upper thigh, penis and ejaculate contrary to s.152. [ 3 ] At the commencement of the trial Crown counsel offered no evidence on the Section 153(1)(

b) charge, presumably because Section 153(2) defines a young person as a person 16 years of age or more, but under the age of 18 years. The complainant in this matter was eight years of age at the time of the alleged incident. That charge was dismissed for want of prosecution. [ 4 ] Admissions pursuant to

Section 655, which were marked as Exhibit #1, were made regarding the identity of the accused, jurisdiction, date of the offence, age of the complainant, voluntariness of the accused’s statement to the police and that the audio video taped statement of the complainant was made within a reasonable time after the alleged offence. [ 5 ] The following is a synopsis of the evidence and the facts as I find them from that evidence. [ 6 ] The accused, D. M., hereafter referred to as “M.” and K. B., the complainant’s mother, have known each other since 1983 when Mrs. B. was the young teenage daughter of M.’ neighbour.

Over the years M. acted and was viewed as a father figure and mentor to Mrs. B.. Mr. And Mrs. M. took K. under their wing. She shared in their family’s leisure activities and over the years they maintained contact even after the M. family had moved to another area. [ 7 ] In 1993 or 1994, when M. was experiencing marital difficulties, he, for a short time, moved into the second bedroom of an apartment that Mrs. B. was renting. Some time later when Mrs. B. was having a difficult time financially she, for two years, lived with M. and his wife who had by then reunited. [ 8 ] Subsequently Mrs.

B. married and had three children. The complainant, M. B., is her second child. Mrs. B. and her husband separated. After the separation when Mrs. B. experienced further financial difficulties she again turned to M. for advice and guidance which he provided. Over the years the two kept in touch. M. witnessed Mrs. B.’s interaction with M. and offered parenting advice. He would visit Mrs. B. and her children occasionally. Mrs. B. trusted M. and confided in him. He offered to help her with any management issues she was having with M.. [ 9 ] M.’s favourite animal is a horse. M. has a long history with horses.

On August 4 th , 2010 M. called Mrs. B. and told her about a racehorse that would be training at track near his home at 7:00 a.m., the next morning. He offered to either come very early the next morning to get M. so that she could see this horse or that she could stay overnight at his house and they would go to the track from there in the morning. M. had never spent an overnight at M.’ home, and when asked what her preference was, she chose the overnight visit. [ 10 ] M. came to get M. that evening. He and K. B. chatted before M. and M. left. M. was returned early the next afternoon. Mrs.

B. did not see M. when M. was returned because she was bathing. [ 11 ] While M. was at M.’ home they had a barbeque, watched movies and played horsie, where M. would pretend he was a horse and M. would ride on his back. M.’ evidence was that while doing this, he on several occasions would ride M. into his bedroom, pretend he was a bucking horse and buck her off his back onto the bed. He testified that she liked this and asked that he do it again. M. spoke of playing horsie both in her video taped interview with Constable Robinson and in cross-examination at trial.

In neither did she say that M. bucked her off him onto his bed or that she like it. Her evidence on cross-examination was that they played horsie in the living room, kitchen and his bedroom. In her video taped statement she described riding around the house and when they got to his bedroom he would go on his hands and knees and ride around on his bed on his hands and knees. Being bucked off onto the bed is surely something she would remember, particularly if she liked it as well as M. said she did.

[ 12 ] M. impressed me as an articulate, observant and intelligent young girl. Her evidence on cross-examination about disclosing to her mother what occurred to her and her mother’s reaction being, and I quote “her eyebrows were up and her mouth was open” is consistent with a parent’s sense of shock upon hearing and seeing described what is alleged to have occurred here. I accept as truthful the evidence of K. B. as to what M. said and did when she disclosed to her. M. not only said that M. was “playing with himself”, but she also made an up and down motion with her cupped hand.

M.’s video taped evidence recorded two weeks after the alleged incident shows her moving her right hand up and down and she is describing what she referred to as “playing with himself”. What is especially telling about this evidence is M.’s reference to M. “pulling the purple thing in and out”. She further described the purple thing as being inside his penis and she then proceeded to demonstrate what she had been describing by moving her right hand up and down. [ 13 ] M.’s video taped evidence describing the events was unprompted.

At one point when being asked about whether M. told her to leave the room, she responded, and I quote “he’s also ticklish inside his thighs, right there”. She knew this because he told her to tickle him there and that it felt good. She went on to describe how the tickling occurred once in the living room and in his bedroom and that M. asked her on a couple of occasions to tickle him. When asked about what he was wearing she said his boxers. She went on to describe where on his legs the boxers ended and unsolicitedly added and I quote “and I told him that I wasn’t going any further than where they stopped”.

When asked why she said this, her response was because she was scared she would see him, meaning his penis or what she referred to as his peespot. She added that M. told her that if she ever wanted to see it, to just say so and that it was not gross. [ 14 ] M. also testified that when he was playing with his penis, there was “yellow goop dripping out”. She added, and I quote “and he asked me if I wanted to touch it”. She said she felt grossed out by this. When asked if M. talked to her about what had happened, she replied, and again I quote “he told me not to tell anybody”.

He said “what goes on there, stays there”. [ 15 ] M.’s evidence was that M. told her to come into his bedroom to wake him in an hour. This would have been 3:00 a.m. M. was watching a movie in the living room. At 3:00 a.m. she entered the bedroom to wake M. pursuant to his instructions. M. was asleep. M. began playing with an inflatable life jacket used for sailing which was on the floor next to M.’ bed. M. was on the bed naked. At 4:00 a.m. M. woke and began, in M.’s words, “playing with himself with one hand”. She said that when he was doing this yellow goop was dripping out.

She felt grossed out and when asked by M. if she wanted to touch it, she said no. [ 16 ] M.’ evidence parallelled that of M.’s with respect to what they did while at his home. His evidence differed from hers regarding what occurred in the bedroom. M.’ evidence was that despite K. B.’s instructions that M. was not to have sweets or pop, he gave her some pop, Cola, which she did not like and also gave her a fudgesicle. He testified that it was because of this that he told M. not to tell her mother and said to her “what goes on here, stays here”.

His evidence that the tickling M. referred to occurred in the living room and was around his knee area and not his thigh. [ 17 ] M. testified that at midnight he told M. it was time to go to bed and that he was going to shower before going to bed. M. asked if she could continue watching her movie until he was finished showering. He agreed. At 1:00, after he had finished showering and applying a cream to his penis for his yeast infection, he told M. it was time for bed. She, however, wanted to continue watching her movie.

He then told her that he was going to bed and that if she was still awake at 3:00 a.m. she should come into his room and wake him. He says that he woke at about 3:50 or 3:55 a.m., heard the TV, called out M.’s name asking if she was still awake. He received no response. His evidence was that at this point his yeast infection was still itching so he pulled down his boxer shorts and with his legs off the bed he, with one hand pulling back and holding his foreskin in place, applied cream to his penis with his other hand.

He described the application of the cream by making a back and forth motion with one hand on his penis. [ 18 ] He testified that as he was applying the cream, M. burst through the bedroom door and jumped onto his bed. He said he covered his genital area with his left hand, and with his right hand tried to block M.. She jumped off his bed, and at this point he was able to pull up the bedcovers, pull up his boxer shorts and put the lid back on the cream bottle he was using. That bottle has been marked as Exhibit #3.

His evidence was that M. then said “that’s gross”, and he replied that it was not gross, it was just medication and that she could touch it, referring to the medication. At this point, according to M., he noticed that M. was wearing the inflatable life jacket and that it was on her inside out. Fearing that if the life vest inflated suddenly in this condition it would crush M.’s ribs. He therefore yelled at her to put up her arms and not move. He removed the life jacket from M., and according to M., she ran out to the living room upset. He followed her there.

He told her that she could not jump on his bed and that she should go to bed. M. went to bed. M. woke the next morning and at 11:00 a.m. he woke M., gave her breakfast, took her to the frog pond and the horse track and then home. [ 19 ] M. never got to see the horse she was taken there to see. According to M. this was because he was not getting up at 6:00 a.m. with just two hours sleep and because M. had not slept. He denied the allegation against him and said that it was all a mistake. His

position, as I understand it, is that M. accidentally saw him naked and applying cream to his penis when she burst into his bedroom door and that he did not ask her to touch him. [ 20 ] M. testified that he has had a yeast infection for 15 years, since 1993 or 1994. This would make it more like 18 or 19 years. He also stated that he filled the prescription for the medication Westcort /Loprox, the medicated cream used to treat his infection, on an average a couple of times per year. [ 21 ] C. C., a pharmacist was called by the defence.

She introduced Exhibit #8, a record of all the prescriptions filled in M.’ name from January 2002 to April 2009. Exhibit #8 shows this prescription was only filled nine times over that seven year period. [ 22 ] M.’ description of how he applied this cream differed from the pharmacist’s evidence as to how this medication should be applied. M. testified that he would put the cream on his penis and massage it in using a back and forth motion on his penis. Ms. C.’s evidence was that typically this cream is applied in a circular motion to ensure that it is rubbed in properly.

She also testified that she would tell a patient who had an irritation from this type of infection to rub the cream in gently, and not with an up and down motion. Her evidence was also that medications have a best before date and that they lose their potency after the expiry of this date. [ 23 ] Where the evidence of M. conflicts with that of Ms. C., I accept the evidence of Ms. C. over that of M.. [ 24 ] Dr. Gilbert was M.’ doctor from 1996 until 2008 when she retired. She was called by the defence to establish that M. suffers from a yeast infection which is more common in women than in men.

She acknowledged that this type of infection is uncommon in men and that in her medical career, from 1986 to 2008, she had treated less than 10 men with such an infection. Her evidence was that such an infection does not prevent a man from attaining an erection or ejaculating. She also confirmed that medications lose their potency once they are passed their best before date. Dr. Gilbert could not recall ever seeing M.’ infection or his penis. [ 25 ] Dr.

Gilbert described the symptoms of such an infection as itching, burning in the affected area, soreness, a rash presenting as raised and reddish small lesions, either individually or grouped together. This infection is most commonly found in warm, moist areas such as in skin folds. The foreskin in uncircumcised males was noted by Dr. Gilbert as being a warm and moist area that is conducive to yeast infections. [ 26 ] The evidence of M., Dr. Gilbert, Ms. C. and L.:, M.’ girlfriend establishes that at various times he has suffered from a yeast infection. [ 27 ] Ms. L.’s evidence was that she was once infected by M..

She testified that soon after she was infected she saw M.’ penis. She stated that he had to pull his foreskin back for her to see the head of his penis which she described as being red and freckled. M. and Ms. L. have been involved in an intimate relationship for the past four years. They have, according to her, an open relationship. They communicate well, and M. is her best friend. [ 28 ] Her evidence was that she knew that M. had an infection in August 2010 because he told her he did. [ 29 ] Although they maintain separate residences, she spends every weekend at M.’ home.

In the course of their relationship she has never seen M.’ applying the cream. She could not say how he applied the cream. Her evidence was that she knows when M. is infected because he tells her and also because of the pungent smell of his clothes when she does his laundry. Dr. Gilbert’s evidence was that a yeast infection smells like bread. [ 30 ] Ms. L. was of the opinion that M. did not do what he is alleged to have done. She formed this opinion two days after his arrest once he had given her his version of the events. She never spoke to the complainant or to her mother. [ 31 ] Ms.

L. appeared taken aback when asked in cross-examination if she knew that M. had a criminal record.

[32] In order to obtain a conviction the Crown must prove beyond a reasonable doubt that M. (1) for a sexual purpose, (2)communicated an invitation, and (3) to touch directly a part of his body, in this case his upper top thigh, penis and ejaculate. See R. v.Legare (2008), 2008 ABCA 138 , 236 C.C.C. (3d) 380 (Alta. C.A.) affirmed by the Supreme Court of Canada at (2009), at2009 SCC 56 , 249 C.C.C. (3d) 129. [33] M. in this case testified. I therefore bear in mind the direction set out by the Supreme Court of Canada in R. v. W(D), (SCC), [1991] 1 S.C.R. 742, which is:

(1) If I believe the accused I must acquit;

(2) If I do not believe the evidence of theaccused and I am left in a state of reasonable doubt by it, I must acquit; and

(3) If I do not believe the evidence of the accused and I amnot left in a state of reasonable doubt by it, I must consider whether on the basis of the evidence which I do accept I am convincedbeyond a reasonable doubt of the guilt of the accused. [34] As a trier of fact, I can accept some, none or all of a witness’ evidence. I am also mindful that the testimony of a single witnesswhom I believe is sufficient for proof beyond a reasonable doubt of any fact to which he or she has testified. I am also cognizant of theSupreme Court’s decision in R. v.

W(R), [1992] 2 S.C.R. that with child witnesses the presence of inconsistencies, particularly as toperipheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events. [35] In the present case I accept as credible and truthful the evidence of M. and her mother K.. I am satisfied that M. was notcoached on what to say. As I stated previously, she is an observant, articulate and intelligent young girl.

Her description of whathappened at M.’ home given to her mother the next day and recorded subsequently in her video taped statement of August 20, 2010 wasunprompted and unsolicited. Of particular significance was her description of the purple ball inside M.’ penis being pulled in and outand the goop dripping from it which grossed her out. An examination of Exhibit #3, the cream which M. said he was applying to hispenis when M. burst into his room, reveals that its consistency is not liquid and it does not drip. [36] K.

B.’s evidence about what M. said to her and demonstrated to her shortly after she returned home was powerful. Shedescribed how M. told her that M. was playing with himself, that is touching his penis while she moved her cupped hand up and down. M. said she felt okay with this until the goop came out. [37] I accept K. B.’s evidence concerning her reason for waiting until August 13th before contacting the police. She candidlyadmitted under oath that in the intervening period from the disclosure to her by M. to her contacting the police, she was trying to devise away of harming M. and getting away with it.

She was dissuaded by a neighbour from following this course of action. [38] I did not find M. to be a credible witness. In considering the evidence of M. in light of all of the other evidence, I am left withthe belief that he was tailoring his evidence to conform with that of M.’s while at the same time offering an innocent explanation forwhat M. saw. [39] M. testified that after August 5th he attempted to contact K. B. to tell her what had happened so that she would not think thatsomething bad had happened, but when he called he just got her voicemail. There is no evidence from either M. or K.

B. that he left amessage saying that he needed to talk to her about what M. saw so that it would not be misconstrued. M. testified that he did speak to K.B. on one occasion to tell her where he had left the sneakers that M. had forgotten, but K. told him that she was busy and could not talk. He did not tell her that it was important that he speak to her to clarify what had happened. Of note is well is the fact that when M.returned M. to her home, he did not wait to speak with her mother about such an important thing as the child witnessing him applyingcream to his penis so that this would not be misinterpreted.

His reason for not waiting being that he was already a half hour late for anappointment was disingenuous. If, as M. testified, M. simply saw him applying medication to his penis, surely he would want her motherto know this as soon as possible so that she would not be left with the wrong impression. [40] M.’ evidence was that after he finished showering at 1:00 a.m. he told M. it was time for her to go to bed, but she wanted tocontinue watching her movie, so he let her do so but he told her that if she was still awake at 3:00 she should come into his room andwake him.

On cross-examination he said the reason for this was that if M. was still awake at 3:00 a.m. then he would make sure that shewent to bed and if she was not awake then he would not have to get up. This is absurd. Why would he want her to come into his room at3:00 a.m. to wake him. Why would a grown man, who has a child of his own, knowingly allow an eight year old child to stay up half thenight while he goes to bed. Why would he tell the child to come in his room at 3:00 a.m. to wake him.

[ 41 ] If the purpose of the overnight visit was for M. to see a racehorse very early the next morning, why would he allow her to stay up so late. [ 42 ] M.’ evidence regarding the visual appearance of his yeast infection was inconsistent with that of other defence witnesses. Ms. L. had seen his infection in the past. Her evidence was that the infection was centred around the head of the penis and that the shaft of the penis was okay. Dr. Gilbert testified that yeast infections in men are found in areas that are warm and moist, such as in the foreskin of the penis.

M.’ evidence on cross-examination was that his yeast infection generally affected the foreskin inside and out and also the head of the penis, but not usually the shaft of the penis. However, in August of 2010 the infection was not only all over his foreskin and the head of his penis, but also down the shaft of his penis, hence the reason for rubbing the shaft of his penis. [ 43 ] Having considered all of the evidence, I do not believe the evidence of M., nor does his evidence leave me in a state of reasonable doubt. I accept the evidence of M. and K.

B. as being truthful and credible and it convinces me beyond a reasonable doubt of the guilt of M.. [ 44 ] Accordingly, a conviction on the first count,

Section 152 will be entered. ________________________ Cacchione, J.