R. v. Hamilton, 2019 ONCJ 41

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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. Hamilton , 2019 ONCJ 41 DATE: 2019 01 25 COURT FILE No.: Niagara Region 998 17 S4103 BETWEEN: HER MAJESTY THE QUEEN — AND — Carl Hamilton Before Justice J. De Filippis

Heard on January 7 – 9, 2019 Reasons for Judgment released on January 25, 2019 Mr. S. Doherty...................................................................................... counsel for the Crown Mr. M. Shea ................................................................................... counsel for the Defendant De Filippis, J.: INTRODUCTION [ 1 ] The defendant is charged with exposing his genital organs to a person under the age of 16.

The offence is said to have occurred on October 22, 2017 at the City of Thorold. [ 2 ] These facts are not controversial: The defendant is 68 years old and, at the relevant time, lived next door to a family that included two children; T.R. who was five years old and her brother, J.R. who was four years old. He lived with his elderly mother and disabled sister (who has since passed away). The semi-detached houses in this area have backyards that abut other similar residential properties on all sides.

On the day in question the two children were playing on a trampoline in their backyard and the defendant was cutting the grass in his backyard. The two yards are separated by a chain link fence, with otherwise unobstructed visibility. The children ran to the front yard, where their father was operating a leaf blower and reported that the defendant had exposed his penis. Later, the children’s mother called the police. After his arrest the defendant moved to the home of one of his brothers. [ 3 ] The credibility of the children is not in question.

The reliability of their testimony was not seriously or successfully challenged. Although the Crown disputed the defendant’s version of events, the rest of the Defence evidence about the defendant’s limited intellectual abilities and recent cognitive issues are not contested. EVIDENCE [ 4 ] The children were interviewed separately by the police. The video record of this interview was introduced as evidence pursuant to

section 715.1 of the Criminal Code . Excerpts of the interviews are set out below. [ 5 ] When J.R. was asked what he had previously reported, he replied, “The neighbour took his pecker out”. The conversation continued as follows: Q: How long was his pecker out? J.R.: A long time…He was cutting the grass Q: How did he take his pecker out? J.R. With his hand Q: He just took it out? J.R.: Yeah Q: Do you think it was an accident J.R.: Yeah Q: Why? J.R. Because Q: …how did he put his pecker away…?

J.R.: He tucked it down [ 6 ] T.R. reported that “We were on the trampoline and the neighbour came up and showed us something”. The following exchange occurred: Q: What did he show you? T.R.: Bad things Q: Like what?

T.R: I forget Q: I don’t think you forget…what were you doing on the trampoline? T.R.: [J.R.] was trying to do cartwheels and I was on my feet. Q: Where is the trampoline? T.R. In the backyard Q:…when you say something bad, what do you mean? T.R: ….He took his pecker out… Q: For how long? T.R.: A little bit Q: What did he do when he took his pecker out? T.R.: He did nothing….He asked us to go inside? Q: Why?

T.R.: [Shrugs] [ 7 ] Later in the interview, T.R. explained that “a pecker” is a “private part” of the male body and that she has been taught that nobody should touch her private parts. [ 8 ] The father of the two children testified that on the day in question he was using a leaf blower in his front yard when the children ran to him and T.R. said, “the neighbour showed us his pecker”. He asked her twice more what she meant and she repeated the phrase. He told her to get their mother. She came outside and both children repeated the allegation. The mother of the two children confirmed this account.

She also testified that “pecker” is a word used when talking to the children about a penis. [ 9 ] The parents told their children they could return to the backyard. The father used his cellular telephone to secretly record what transpired. The recording shows that for about eight minutes the children play at the fence separating the two properties in question. The defendant stands on the other side of the fence and stares in silence at the young girl and boy. [ 10 ] The Defence called two police officers to testify about the defendant’s arrest and subsequent statements. P.C.

Woo responded to the complaint and said that when he confronted the defendant with the allegation, the latter replied that his pants had come down after he tripped over a tayberry bush. The defendant explained that his sweat pants were “pulled down” after they became caught in the bush as he stood up. [ 11 ] P.C. England interviewed the defendant for 39 minutes at the police station. The officer agreed with Defence counsel’s suggestion that the accused is a “simple man”. This characterization was confirmed by the defendant’s 57-year-old brother. Mr.

Rick Hamilton added that he has noticed a “slow decline” in the defendant’s cognitive abilities over the past three to four years and he has become forgetful and confused. He testified that he is looking for a long-term care facility for the defendant as “he can’t live on his own anymore”. [ 12 ] As already noted, the defendant is 68 years old. He is single with no children. The defendant testified that he did not complete grade three and that he is in receipt of a “disability pension” because he is “not too good at reading, stuff like that”. He can add and subtract but cannot multiply or divide.

He confirmed that Rick Hamilton is trying to find him a place to live. He pointed to a woman in the courtroom – “from community housing” – who is assisting in this effort. [ 13 ] The defendant confirmed that on the day in question he was in his back yard pulling weeds. He testified that he stumbled while gardening and as he “got up, the tayberry bush grabbed my pants”. Defence counsel then asked, “So this would have revealed your pecker?”. The defendant replied, “No, I had inside pants, it would not fall out”.

Defence counsel asked more questions about the possibility that he might had inadvertently exposed his genitalia. The defendant maintained that his penis was not exposed at any time. [ 14 ] In cross-examination, the defendant was directed to the video taken by the children’s father and asked to identify the tayberry bush. He did so. The bush is two or three feet tall with thin branches. It is difficult to imagine that clothing could get caught on this plant and, even more, that it would cause the pants to be pulled down as the defendant stood up.

Yet the defendant, apparently without guile, repeated that this is what had occurred. [ 15 ] Crown counsel also confronted the defendant with the following excerpt from his recorded interview with P.C. England: Q: Is this the first time you showed your penis to this group of kids A; Yes….I might have…not much, just a little bit [ 16 ] The defendant testified that he “could have said this” but “forgot” about it during trial testimony and then added that it was not possible for his penis “to have popped out”. He said he must have told the officer otherwise because he “got confused”.

When asked if he had a criminal record, the defendant replied that he did not. He was then shown a document and agreed that he had two prior convictions, the last in 2008 for which he was subject to a period of probation.

ANALYSIS [17] The Crown must prove its case beyond a reasonable doubt. If the Defence calls evidence there must be an acquittal if thetestimony is believed or the testimony is not believed, but nevertheless raises a doubt, based upon reason. An acquittal will follow evenif the Defence evidence is not believed and does not leave a doubt, based upon reason, but the remaining evidence fails to prove that thedefendant is guilty: R v W.D. (1991), (SCC), 63 C.C.C. (3D) 397 (S.C.C.). In determining if the Crown has dischargedits burden of proof, all evidence may be considered. This also means that any Defence evidence should not be viewed in isolation. [18] This offence is set out in

section 173 of the Criminal Code. The Crown must prove that the defendant (1) wilfully (2) exposedhis genitals (3) for a sexual purpose (4) to a person under the age of 16. The fourth requirement is not an issue. Moreover, as I havenoted, there is little dispute about the creditably and reliability of the children and, thus, I have no doubt that they saw the defendant’sexposed penis.

What remains to be determined is whether the exposure was wilful and for a sexual purpose. [19] Defence counsel obviously expected the defendant to testify in accordance with his prior statements to police; namely, that hebecame entangled with the tayberry bush and inadvertently exposed himself. Instead, he affirmed the former but denied the latter.

In anyevent, his evidence about that bush in both his prior statement and his trial testimony is undermined by the video recording that shows itis not possible that his pants could have been caught up in and pulled down by the tayberry bush. [20] The conflict between the defendant’s prior statement to police and his trial testimony is not about a minor point or collateralmatter; it is the critical issue in his defence. Did he inadvertently expose himself or not? The inconsistency can only be explained by hisbrother’s testimony that the defendant has become forgetful and confused over the past few years.

This cognitive deficit also explainsthe defendant’s denial of a criminal record. He had to be reminded and remembers that he once stood in court, was convicted, andordered to serve a term of probation. [21] In the result, I reject the defendant’s evidence. As already noted, I find the account given by the two children to be truthful. Iwould not however, act upon J.R.s statement that the penis was exposed for a long time. His older sister’s observation that it was a briefexposure accords with the fact that both children ran to their father with the news.

These findings of fact do not lead me to conclude thatthe defendant is guilty. All I know is that an older man, whose limited intellectual abilities are deteriorating, exposed his penis andquickly covered it up. In this limited context, I am not confident the defendant did so for a sexual purpose. In the unique circumstancesof this case, it would be wrong to assume such a purpose. [22] My doubt about the defendant’s sexual purpose is strengthened by the secret video recording. For almost eight minutes thedefendant stood beside the children, separated only by a chain link fence. He thought they were alone.

He said nothing. He did nottouch them or invite them to touch him. He did not expose his penis again. He just watched them at play. [23] The charge is dismissed. Released: January 25, 2019 Signed: Justice J. De Filippis