R. v. Attridge, 2011 ONCJ 65

WARNING The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

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

i) to (iii).

(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 complainant of the right to make an application for the order; and (

b) on application made by the complainant, 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. COURT FILE No.: Region of Durham 998 09 16007 Citation: R. v. Attridge , 2011 ONCJ 65 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — Brian Attridge Before Justice J. De Filippis Heard on: January 26 & February 1, 2011 Reasons for Judgment released on February 11, 2011 Ms. C. Johnston ......................................................................................................... for the Crown

Mr. C. Kostopolous................................................................................................ for the Defendant [ 1 ] The defendant was tried on an Information alleging seven offences; three counts of sexual assault, three counts of sexual interference, and one count of invitation to sexual touching. All offences are said to have been committed between March 1, 2001 and December 3, 2009 at the Town of Uxbridge.

I heard from the complainant, her mother, and the defendant. [ 2 ] The Crown claims that while the defendant committed the offences while he was a tenant in the home in which the complainant and her mother lived. The defendant denies the allegations. There is no dispute that the conduct alleged by the Crown amounts to sexual assault, sexual interference, and invitation to sexual touching. What must be determined is whether the Crown met its burden of proof. This requires an assessment of the credibility and reliability of the evidence.

As is often the case in sexual offence allegations, the impugned conduct occurred in private and there is little independent or third party evidence to consider. I have concluded that the defendant is guilty. These are my reasons. [ 3 ] The complainant is 11 years old. She was seven to nine years old in the period covered by the Information. Her evidence, with respect to the allegations in question, is as follows: The complainant first met the defendant two to three years ago; “One day my mom never even told me about it and so there was this blue and red truck came into the driveway and that’s how I met him”.

When asked, “Tell me what’s going on?” she replied, So it wasn’t too long ago, it kind of started before my mum went in the hospital. He started kind of looking at my areas….At first he was kind of just playing around with them [points to breasts] and then he started looking at them and maybe the odd time lick them [points to breasts].

And um he also once he got down there [points to vagina] and he also started to lick it too and he lick up my hairs and all that. [ 4 ] The complainant stated that these events happened “about more that fifteen” times in the defendant’s basement apartment while her mother was “upstairs probably sleeping still”. This usually happened in the mornings as the complainant often woke up early and went to the basement; “So usually I go down there and say, ‘Hey Brian. Good morning. Aren’t you gonna get up soon?’ And then like usually crawl into bed with him to kind of wake him up too….I can’t remember how it started.

All I know is that somehow we started it and yeah.” The complainant said that the defendant commented that her breasts were “getting bigger” and she was “getting to be a young lady and stuff and then he started licking”. When asked to elaborate about what the defendant did to her “lower private part”, the complainant said, “That was um one night when my mom I think was in the living room and me and him was in the bedroom.

He would pull down my underwear cause I was also wearing my pj’s and look and lick….He told me that my vagina tasted like um chicken or fish – chicken fish”. [ 5 ] After the complainant described what had been done to her, she was asked if the defendant tried “to get you to do anything?” The following exchange occurred: Complainant: He did once. He told me to – he brought out his thingy and told me to rub it. Then he, then something came out and he told me what it was. That he told me it was sperm and it goes down my thingy. Officer: It went down your thingy? C: No it didn’t.

I, he just told me it goes down there but it didn’t go in there. ………………… O: What was he wearing? C: A pair of shorts, underwear and a top [sighs]. O: Where were you when this happened? C: Um, in the bed with him, just lying down and I was kind of sitting like this…he told me to rut it and twist the top and…stuff came out and then he told me it was sperm. That goes down there but it didn’t go there. ………………….. O: Can you tell me what it looked like? C: It looked like a little straw thingy with a little triangle….Like a little circular thing and then a little triangle shape. There’s a hole at the top.

O: Was there extra skin that covered the end? C: No. O: Do you know what the term circumcised means? C: No. O: Did Brian have any hair down around his penis? C: He had no hair around his thing, only he kind of also pulled down like I told….um what he called his nuts.

O: was there any hair on his nuts? C: Mmmm Hmmm…Black. O: Did he ever to push his penis onto you or… C: No O: Did he ever do anything inside of your privates? C: Like down in my vagina? O: Yeah C: No. O: Did he ever put his finger in? C: Nope. [ 6 ] According to the complainant, after she had touched the defendant’s penis, he told her not to talk about it: “He told me that I – not to tell mom. Or that he’ll go in jail.

And that my mother will go super crazy, super nuts, super psycho and all that….I was afraid of telling my mom because of what Brian said…” She described the sperm as “clear and whitish”. [ 7 ] The complainant was asked if she ever saw a book that showed where sperm came from.

She replied that she had; she was once hurt at school and went to the sick room and saw a book with a “graph kind of girl and this graph kind of boy…and it shows the picture of the inside and this yellow egg and successful sperm inside and then the rest of them trying to get in the egg?. [ 8 ] At the conclusion of the interview with police, the following exchange occurred: Officer: So everything you told me, on a scale of truthfulness out of 10, what would you give yourself?” Complainant: [sighs] I would give me 10 out of 10. [ 9 ] The complainant noticed a change the defendant’s demeanor.

She stated that “Before we came here [to the police] Brian was actually, I guess Brian was getting a little worried because I was starting to stay more with my mom. Every time Brian came up I would get a little scared and go to my mom….One time I got really scared and I had to just go to my room”. When asked what scared her, the complainant said that “Just that he was acting a little upset and moody…” [ 10 ] The complainant was asked to clarify her gestures towards her breasts when describing what the defendant licked. She said he licked “where the baby bites”.

She testified that she told her mother about the events one evening when, while “cuddling” with her mother, the latter asked, “Is Brian was touching you”. The complainant agreed that this happened around the end of November 2009 and added that she had wanted to tell her mother “really bad” but was afraid she would “go ballistic”. [ 11 ] The complainant testified the defendant moved into her home when she was in grade three [seven years old] and after several months slept with her mother. She said this made her happy because they were “a family again”. Later the defendant resumed living in the basement.

The complainant said her mother could not move around well and the defendant was like a father to her; he cleaned the house and they walked the dog together. She acknowledged having lied to her mother in the past bout not doing her homework, but not “about this”. She also said she would not lie to the police or the court. She firmly denied fabricating the allegations at the request of her mother. [ 12 ] The complainant’s mother testified she met the defendant in March 2007 when he moved into the basement apartment of her home. This unit contains a kitchen, bedroom, living room, and separate entrance.

She said that within a few months they “became a couple” and the defendant shared her bedroom. She described their relationship as “really good”. The complainant’s mother has a disability that makes walking difficult and she appreciated the defendant taking her daughter for walks and cycling. She said the complainant was often alone with the defendant in his basement apartment, usually on weekends, watching movies. The complainant’s mother slept a lot. Eventually, in 2009, the she asked the defendant to leave her bedroom and return to his unit. This was done because she “could not handle his stress”.

She said he had been in a car accident and “was drinking more”. The defendant continued to have access to the entire house. [ 13 ] On December 2, 2009 the complainant and her mother moved to a shelter. The latter testified that this was done without telling the defendant, leaving him in her home. The complainant’s mother took this action because two days earlier the complainant had disclosed that the defendant touched her inappropriately.

She cannot recall the context within which this disclosure was made; she testified the complainant “said something” that prompted her to ask “did someone touch you?” two which the complainant said “Brian”. The complainant’s mother was upset by this and worried by how the defendant would react if confronted. Accordingly, she said nothing to him, telephoned a “help line” and acted on advice to quietly leave for the shelter.

The police were called from that place. [ 14 ] The complainant’s mother testified that shortly before her daughter disclosed these allegations, the defendant had told her he felt the complainant would say he had “molested her” and that he wanted to know from the complainant’s mother, “who her man was”. The complainant’s mother testified she did not react to this conversation because the defendant was drunk and “when he drank, he said lots of things”. She acknowledges she did not mention the conversation to the police during her hour long videotaped interview.

She explained that she was still in shock while being interviewed and insists she told the officer about it after the interview. The complainant’s mother also testified that shortly after the defendant told her about his concern, she discussed it with his mother who assured her it was “ridiculous”. It is agreed that the police notes with respect to this case do not contain any reference to the

complainant’s mother reporting this conversation with the defendant. It is also agreed that the defendant’s mother would deny havingdiscussed the matter. [15] The complainant’s mother acknowledged that shortly before she went to the police, the defendant had stated he would beleaving. This saddened her because she still considered him her boyfriend but she accepted his decision. When it was suggested that sheencouraged her daughter to fabricate these allegations, the complainant’s mother became upset and tearful and said, “Nothing could befurther from the truth. This is not funny. This tore our world apart.

The last thing I wanted to do is hurt Brian, or his family, or me ormy daughter”. When it was also suggested that the defendant had lived in her home for long enough that he might have “a possiblecommon law claim” to it, she replied, “I have no idea. If there was, I would have dealt with it”. [16] The defendant is a self employed plumber. He agreed that he became a tenant of the complainant’s mother in 2007 andthey soon developed an intimate relationship. He testified that by September 2009, he felt the relationship was over and he decided tomove on.

He told the complainant’s mother that he would be gone by March 2010 – after his license to drive was reinstated and threeyears after he had moved in. The defendant testified that the complainant’s mother knew that after three years he would have a claim onpart of her house. The defendant said he treated the complainant like a daughter. He denied the allegations of sexual impropriety. Hetestified his pubic hair is “blonde/orange”. [17] The defendant said that the complainant came to his downstairs apartment “a few times” and he was alone with her “threeto four times”.

He resisted the suggestion he had seen her wearing two piece pajamas but conceded he may have. The defendant said heand the complainant’s mother had spoken to the compliant about inappropriate touching but that he never said he believed thecomplainant would accuse him of doing so. He agreed that the hair on his legs is the same colour as that on his head. When it was putto him that the hair on his head is “brown”, he said it was “dirty blonde” and when pressed, said “light brown”. He conceded the hair onhis body would look darker under covers.

The defendant initially said he did not feel the complainant’s mother was concerned he wouldmake a claim on her house. Later, he testified that she was more concerned about this than he was.

When pressed further, he confirmedhe told her he had no interest in the house. [18] In examination in chief, the defendant confirmed that the following is his “complete record”: 1982 Possession of a Narcotic Break and Enter 1985 Mischief 1986 Break and Enter 1994 Over 80 2002 Assault In cross-examination, the defendant admitted to the following additional convictions: 2009 Impaired Driving 2010 Fail to Comply with Recognizance (2 counts) [19] The defendant is presumed to be innocent. That presumption remains until such time as the Crown has proven thedefendant is guilty.

The Crown must prove its case beyond a reasonable doubt. This means that if the defendant has called evidence,there must be an acquittal: (

i) where the testimony is believed, (ii) where the testimony is not believed, but leaves the trier of fact inreasonable doubt, (iii) where testimony is not believed and does not leave a reasonable doubt, but the remaining evidence fails toconvince, beyond reasonable doubt, that the defendant is guilty: R v W.D. (1991) (SCC), 63 C.C.C. (3d) 397 (S.C.C.). The application of this principle does not mean the defendant’s evidence is to be viewed in isolation, divorced from the context or otherevidence in the case: F v R.D. [2004] O.J. 2086 (O.C.A). [20] I reject the testimony of the defendant.

In coming to this conclusion, I note the following: The defendant’s criminalrecord is of some relevance in assessing his credibility. I also take into account his failure to initially admit his entire record. Defencecounsel was unaware of the last three convictions in 2009 and 2010 and only put the previous ones to his client. The defendant agreedthat these constituted his complete record. When confronted by Crown counsel, he conceded that his previous testimony was not correct.I do not consider this to be an innocent error on the part of the defendant.

The three convictions in question are recent entries, after a gapof seven years. Moreover, the impaired charge arose during the events in question and resulted in the loss of driving privileges and thetwo breaches are with respect to the bail order in this trial. As such, it is inconceivable that he did not recall these convictions. I find thathe decided not to mention them when counsel failed to do so. This is consistent with other examples of evasiveness: He reluctantlyadmitted he may have seen the complainant in two piece pajamas.

He provided inconsistent testimony about whether the complainant’smother was concerned about his claim to her house. After describing the colour of his body hair as blonde/orange, he subsequently saidit was dirty blonde and then light brown. This hesitation is significant in itself, as is the fact that he did not concede the obvious; his hairis brown.

Lastly, the defendant’ rejection of testimony by the complainant’s mother that he was drinking heavily must be considered inlight of his conviction for impaired driving, his second drinking and driving offence. [21] The complainant’s videotaped statement was incorporated into her examination in chief, pursuant to

section 715.1 of theCriminal Code. The lengthy statement begins and ends with a discussion about the importance of telling the truth. More importantly, areview of the lengthy statement, portions of which are reproduced above, shows a young girl who appears genuinely interested inassisting the officer in her inquiries. Some of the language she attributes to the defendant seems beyond her age level. This, along with

the amount of detail provided, supports her credibility. Her testimony is clear, coherent, and consistent. The complainant answered questions in court in the same manner. Although she occasionally used code and gestures to refer to body parts, she showed little emotion until the conclusion of her evidence, when it was suggested she had lied. She sat up and forcefully said “no” to each suggestion of fabrication. The complainant’s testimony was not successfully challenged. As will be discussed, there is no motive for her to lie.

I accept her testimony as truthful and accurate. [ 22 ] The complainant’s mother did not witness the events in question. She is the one who initially learned of the allegations and called the police. It has been suggested that she encouraged her daughter to falsely accuse the defendant. As evidence of this, the Defence points to her late disclosure to the Crown of a conversation with the defendant in which he expressed concern that the complainant would accused him of inappropriate sexual touching. Specifically, it is claimed this must be false or she would have reacted to it immediately.

Counsel also notes that the testimony of the complainant’s mother that she reported the conversation to police is belied by the fact that there is no reference to it in any police report. Defence counsel makes valid points: It is difficult to understand why the witness did not immediately react to defendant’s statement or to account for the lack of police notes.

However, there is some corroboration for the testimony: Around the same time as the complainant’s mother said this conversation occurred, the complainant noticed the defendant’s demeanor changed and that he appeared worried because she was spending more time with the mother. It was not suggested, nor do I accept, that the testimony of the complainant and her mother in this regard was orchestrated. It may be that the complainant’s mother is mistaken about having told a police officer about the conversation. In any event, this matter does not trouble me.

I am confident that the complainant’s mother told me the truth. [ 23 ] It is not for the defendant to show that the Crown witnesses have a motive to lie. However, the existence or absence of such motive is important. The complainant had a good relationship with the defendant; she was happy he was with her mother and that they were a family. It has not been suggested that she had a motive to fabricate. Rather, it is claimed she is a conduit for false allegations by her mother. There is no evidence of this.

There is nothing to support the conclusion that the complainant’s mother put her daughter through the ordeal of living at a shelter, a police investigation, and court proceedings to harm the defendant and/or preserve her interests in her property. Indeed, the evidence is to the contrary. It is clear that the complainant’s mother regrets the charges faced by the defendant and that they have disrupted her life and that of her daughter.

Moreover, even assuming she believed the defendant had a claim to her property, it is obvious she was not unduly concerned about it. [ 24 ] I have no doubt the defendant committed the crimes alleged. I find that he took advantage of the time he was able to spend alone with the complainant, perhaps under the influence of alcohol, to sexually assault her, sexually interfere with her, and invite her to sexually touch him. Over time, this caused the complainant to increasingly turn to her mother and the defendant became concerned.

One night, while drunk, he suggested the complainant might falsely accuse him and sought the support of her mother. Shortly after, mother and daughter had a conversation that resulted in disclosure of the offences. The mother moved, with her daughter, to a shelter and contacted police. [ 25 ] The defendant is found guilty of all charges. Released: 10 February 2011 Signed: “Justice J. De Filippis”