R. v. P.(O.), 2012 ONCJ 1

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

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

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

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

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

b) is guilty of an offence punishable on

summary conviction. COURT FILE No.: Region of Durham 998 11 Y26005 DATE: 2012·01·04 Citation: R. v. P.(O.) , 2012 ONCJ 1 HER MAJESTY THE QUEEN — AND — O.P. Before Justice J. De Filippis Heard on July 20-21, November 2 & 25, 2011 Reasons for Judgment on 4 January 2012 Ms T. D’Eri.................................................................................................................. for the Crown Mr. M. McCrae...................................................................................................... for the Defendant De Filippis, J.:

[ 1 ] The defendant was charged with sexually assaulting the complainant from 1 April 2003 to 29 August 2008 at the City of Oshawa. At the time of the alleged offences, he was between thirteen and eighteen years old and the complainant was between six and eleven years old. The defendant is now twenty one years old and the complainant is now fourteen years old. They are cousins. [ 2 ] The complainant disclosed the allegations of sexual assault to her mother in March 2010. The police were called and the complainant provided a videotaped statement to them.

At the same time, the complainant’s irate father brought the allegations to the attention of the defendant’s mother. Soon after, the defendant went to a police station accompanied by his parents and sister. He provided a statement to the police. At trial, the Defence objected to the admissibility of this statement on the grounds that it was not voluntary, at common law, and that it was taken in violation of the right to counsel, as guaranteed by the Charter of Rights and Freedoms. On a voir dire , with respect to these issues, I heard from Detective Hughes and the defendant. I admitted the statement.

In addition to this evidence, on the trial itself, I heard from the complainant and her mother. [ 3 ] When the defendant arrived at the police station, he acknowledged he was under no obligation to speak to the officer but said he wanted to “get something off his chest” and added that he expected to be arrested as a result. The statement given by the defendant to the police was videotaped. The defendant described an incident that happened in the basement of his home when he was thirteen years old and the complainant was seven. He was asked numerous questions about other incidents but denied them all.

He also provided details about his background. The following is an excerpt from the defendant’s statement to the police: …so the [complainant] came to me, she said, oh, wanna play a game with me, so I said…I asked her what game and she was telling me that her mom’s friend Marybeth has two son’s and when they’re playing house….they touch her and stuff like that and that’s how they play.

Then afterwards we started playing and that’s like…it…it was a while back, I don’t even remember entirely what made me decide…to decide to do it….but after I started touching her and I was like playing with her vagina and asked her…I heard my mom coming down the stairs so we stopped, and actually that’s the only time it ever happened…. Later, the defendant continued as follows: ….I went over to her and then, uh, after I started touching her and I was playing with her vagina and after she was reaching up, played with my penis, and I let her.

And when she started playing with me about a couple minutes after that’s when my mom started coming down the stairs and we stopped and started playing with the toys normally….what her mom’s saying that she said is that I did…I touched her and then after I apparently had sex with her. That didn’t happen…[intercourse]…that didn’t happen….

All I can say is um she lost her virginity, this happened six, seven years ago, so even if they did try to say she did lose her virginity, I don’t know how they’d prove it was from me or not...she’s the one who came to me asking if I wanted to play this game with her and then she told me about those two kids, her mom’s friends…. [ 4 ] The complainant’s version of events is much different. She reported numerous instances of sexual assault and said that all occurred in the basement of the defendant’s home, usually on Sundays, when she and her family visited. The complainant testified about the following incidents:

(1) When she was seven or eight years old, the defendant held her head and “forced me to suck his penis”. The complainant does not recall other details, including what she and the defendant were doing beforehand.

(2) When she was seven years old, the defendant told her to “open wide my legs” and put his penis in her vagina. This “hurt and didn’t last long…he went up and down”.

(3) When she was ten years old, the defendant put “his penis in my butt” and afterwards he told her to “wipe something off my butt”. The complainant now knows that he ejaculated in her.

(4) When she was eleven years old, the defendant put his hand under her bra and rubbed her nipples, while she sat at the computer. Other children were in the basement playing “X-Box”.

(5) When she was twelve years old, the defendant put his hand in her underwear and touched her vagina. At the time she was sleeping on the couch as the defendant watched television. She was awakened by the incident.

(6) When she was twelve years old, the defendant “tried to grind on me…with his penis on my bum”. This happened while the two of them, along with two younger children, were “play fighting”.

(7) When she was “around seven years old”, the defendant kissed her, pulled her pants down and put his penis in her vagina. The complainant said this happened quickly and nothing was said and that they had been playing hide and seek.

(8) At an unspecified date, the defendant fondled the complainant’s breasts and vagina, over her clothing. [ 5 ] The complainant testified she cannot be certain which of the aforementioned incidents occurred first but is confident that the last one was while they were play fighting [i.e. incident number (6)]. The complainant said she never discussed these events with the defendant because she worried he would “go to his mom first” and then “I would be on trial”. She eventually told her mother after she became depressed and her mother kept asking “what is wrong”.

The complainant explained that she did not disclose anything earlier for fear of upsetting her mother and “breaking up the family”. [ 6 ] The complainant’s version of events is part of an evolving narrative that began with her statement to the police, continued with further disclosure to Crown counsel shortly before trial, and includes additional revelations during trial testimony. The complainant did not tell the police or Crown counsel about being forced to perform oral sex [incident number (1)], being subjected to anal intercourse

[incident number (3)], or the defendant’s attempt to rub his penis on her buttocks [incident number (6)]. These allegations arose for the first time during her trial testimony. In this regard, the complainant said that she forgot to mention the anal sex, even though it was a traumatic experience. She also explained that she was tired when interviewed by the police and “wanted it over with and never told them”.

The complainant did tell the police that the defendant had touched her vagina [incident number (5)] but also said it occurred when she was “probably seven, I can’t remember” - up to five years earlier than her trial testimony. [ 7 ] The complainant provided various accounts of vaginal intercourse. At trial, she testified about two such incidents [numbers (2) and (7)] and insisted she reported both to the police. In fact, her prior statement includes a description of incident (7) only.

Moreover, the details with respect to incident number (7), as set out in the prior statement, were attributed, at trial, with respect to incident number (2). When this was brought to her attention the complainant stated the incidents are “are mixed up” and she was “confused”. The complainant rejected the suggestion that at trial she had “split one incident into two” and explained that, on the contrary, in the prior statement, she had collapsed two incidents into one. She maintained that the prior statement is incorrect and stands by her trial testimony.

However, when asked for the total number of times the defendant had had sexual intercourse with her, she responded “five or six”. She conceded that the prior statement to police only refers to one and that shortly before trial she told Crown counsel there had been four such incidents. [ 8 ] The complainant gave inconsistent reports about “playing family” with the defendant. This is significant because of the defendant’s statement to the police. At trial, the complainant said that that they had had play family together, but there was no sexual touching.

She told the police she had never played family with the defendant. Shortly before trial, she advised Crown counsel that they had played family five times and it included sexual touching. [ 9 ] The complainant’s mother testified about the family relationships with respect to the defendant and complainant and confirmed the date and circumstances of her daughter’s disclosure of sexual assault. Her evidence is not controversial.

By the same token, it sheds no light on what may have occurred between the defendant and complainant. [ 10 ] The Crown must prove its case beyond a reasonable doubt if the defendant is to be found guilty. This burden never shifts and the defendant is not required to prove anything. The relevant evidence to be considered is that called by the Crown, namely, the defendant’s statement to the police and the complainant’s testimony. [ 11 ] Delayed piecemeal disclosure is not unusual in cases involving child sexual assaults.

This is not necessarily a concern, especially where it reflects a child overcoming feelings of fear and shame. For this reason, inconsistencies that arise from the evolving narrative may not adversely affect the credibility and reliability of the witness. Notwithstanding these considerations, I have concluded that it would be unsafe to make a finding of guilt solely on the basis of the complainant’s evidence and, in this regard, the defendant’s admissions do assist the Crown.

In this case, the material differences between the complainant’s prior statements and her trial testimony, as well as the conflicts between her testimony in chief and in cross-examination, raise a reasonable doubt about her version of events. [ 12 ] The defendant argues that it would be wrong, as a matter of law, to convict him solely on the basis of his admissions to the police, having regard to the fact that the complainant testified that that particular incident never happened. No authority was cited for this proposition and I do not accept it.

In any event, the complainant did not unequivocally deny the incident admitted to by the defendant; instead, she gave three conflicting accounts about it and her trial testimony must be viewed in this context. Moreover, my conclusion that her testimony does not constitute proof beyond a reasonable doubt does not mean I reject her evidence. I find that the complainant is confused about this incident.

I am not troubled by this having regard to the clear and specific admission by the defendant. [ 13 ] I have no doubt that the complainant and defendant engaged in a sexual relationship at a time when she could not consent to doing so. The defendant is found guilty of sexual assault by touching the complainant’s vagina and allowing her to touch his penis when he was thirteen years old and she was seven. Released: 4 January 2012 Signed: “Justice J. De Filippis”