R. v. C. D., 2020 NLSC 113

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. C. D. , 2020 NLSC 113 Date : August 17, 2020 Docket : 201701G7550 Her Majesty The Queen v. C. D. Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Rosalie McGrath Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: July 14, 16 and 17, 2020

Summary: The Accused was found not guilty on charges of sexual assault and sexual touching. The Crown had failed to prove the essential elements of the offences beyond a reasonable doubt. Appearances:

Jennifer M. Colford Appearing on behalf of the Crown Michael S. Ralph Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Lifchus, [1997] 3. S.C.R. 320; R. v. Starr, 2000 SCC 40; R. v. W. (D.), (SCC), [1991] 1S.C.R. 742; R. v. K. P., 2019 NLCA 37; R. v. Y. (C.L.), 2008 SCC 2; R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122; R. v. B.(G.), (SCC), [1990] 2 S.C.R. 30; R. v. M. (W.A.), [1993] N.J. No. 376, 1993 CarswellNfld 376 (N.L.S.C. (T.D.)); R. v.Chase, (SCC), [1987] 2 S.C.R. 293; R. v. Bone (1993), (MB CA), 81 C.C.C. (3d) 389, 41 W.A.C.220 (Man. C.A.); R. v.

Ewanchuk, (SCC), [1999] 1 S.C.R. 330; R. v. Litchfield, (SCC), [1993] 4S.C.R. 333 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT McGrath, J.: INTRODUCTION [1] C.D. has been charged with one count each of sexual assault and sexual touching in respect of his step-daughter, O.M. Theoffences are described as below in an Indictment filed on November 23, 2017: Count No. 1: Between the 22nd day of May, A.D., 2016, and the 23rd day of May, A.D., 2016, at or near St.

John’s in the Province of Newfoundlandand Labrador, did commit a sexual assault on O.M. thereby committing an indictable offence contrary to

section 271(

a) of the CriminalCode. Count No. 2: Between the 22nd day of May, A.D., 2016, and the 23rd day of May, A.D., 2016, at or near St. John’s, in the Province of Newfoundlandand Labrador, did for a sexual purpose touch directly or indirectly, O.M., a person under the age of sixteen (16) years, directly with apart of his body, or with an object thereby committing an indictable offence contrary to

section 151(

a) of the Criminal Code. issues [2] As in all criminal trials, the Crown must prove all elements of the offences in question beyond a reasonable doubt. [3] The first count on the Indictment alleges that C.D. committed a sexual assault on O.M. contrary to

section 271(

a) of theCriminal Code, R.S.C. 1985, c. C-46. That

section reads as follows: 271 Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; [4] The Crown must prove the following elements beyond a reasonable doubt in order to prove sexual assault: 1. That C.D. applied force to O.M.; 2. That C.D. intentionally applied force to O.M.; 3. That O.M. did not consent to the force that C.D. applied to O.M.; and 4.

That the force that C.D. applied took place in circumstances of a sexual nature. [5] As the evidence established that O.M. was twelve years of age at the time of the alleged offence, she could not have consentedto any sexual touching. As such, the Crown does not need to prove the absence of consent or that C.D. knew that O.M. did not consent.

It is only elements one, two and four that must be proven. [ 6 ] The second count alleges a breach of

section 151 (

a) of the Criminal Code , commonly referred to as sexual touching. That

section reads as follows: 151 Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; [ 7 ] In respect of that offence, the Crown must prove the following elements of the offence beyond a reasonable doubt: 1. That O.M. was less than 16 years old; 2. That C.D. intentionally touched O.M., either directly or indirectly; and 3. That the touching was for a sexual purpose. [ 8 ] Again, given the age of O.M. at the time of the alleged offence, the first element has been proven beyond a reasonable doubt.

The Crown must therefore prove beyond a reasonable doubt that C.D. intentionally touched O.M., either directly or indirectly, and that the touching was for a sexual purpose. [ 9 ] There were few witnesses in this trial and, as often occurs in trials involving sexual offences, it is the evidence of the complainant and the accused that is most relevant. The trial evidence is summarized below. evidence Evidence of O.M. [ 10 ] O.M. was sixteen years old at the time of trial and testified behind a screen.

The Accused consented to this manner of testifying pursuant to an application made by the Crown. [ 11 ] While C.D. is not the biological father of O.M., she called him dad as C.D. and her mother, R.M., had previously been married. After R.M. and C.D. separated, O.M. said that she and her younger brother, L., who is now eleven years old, usually stayed with C.D. on the weekends. L. is the biological child of C.D. and R.M. [ 12 ] O.M. testified that she and L. spent the holiday May 24 weekend of 2016 with C.D.

She and her brother shared one bedroom with bunkbeds in C.D.’s two-bedroom basement apartment while C.D. had his own bedroom. [ 13 ] O.M. said that on the night of Sunday, May 22, 2016, she went to sleep in the bedroom she shared with L., but woke in the middle of the night with a bad stomach. She left her bedroom and knocked on the door of C.D.’s bedroom to tell him she was not feeling well. She said C.D. was asleep in bed but she woke him up. [ 14 ] O.M. said she was wearing a shirt and underwear at the time.

She testified that she asked C.D. if she could go back to her bedroom to get pants and he replied to just get into his bed. He said he would rub her stomach and she could fall back to sleep. O.M. acknowledged on cross-examination that sometimes when she had a bad stomach, C.D. would offer to rub her stomach to make her feel better. [ 15 ] After O.M. got into C.D.’s bed, C.D. proceeded to rub O.M.’s stomach and she fell asleep. When O.M. woke up, she was lying on her back. She said C.D. was touching her vagina with his hand and his thumb was moving. She did not know how long his hand was on her vagina.

She also could not recall if his hand was inside or outside her underwear. [ 16 ] O.M. said C.D. then moved his hand towards her chest and that is when she pretended to wake up, despite the fact that she was already awake. Again, she could not recall if C.D.’s hand was outside or underneath her clothes. She said she did not think he touched her anywhere else. However, when shown a text message she sent to her mother and a statement she had given to police, she said she thought C.D. may have also had his hand on her bum.

Again, she could not say whether this was inside or outside her clothes. [ 17 ] O.M. says she then told C.D. she was going back to her own bed and he said “sure”. She said C.D. must have already been awake because she did not wake him. She went back to her own room and texted her mother to tell her what had happened. [ 18 ] O.M. said she deleted the texts she had exchanged with her mother regarding the incident because she did not want C.D. to know she told R.M. [ 19 ] R.M. and R.M.’s boyfriend then showed up outside the house of C.D. early that morning.

However, R.M. did not take O.M. out of the home as the police came in and escorted her out. O.M. then went home with her mother. [ 20 ] O.M. does not believe that she and R.M. talked about the incident immediately when they got home because she was upset. However, that same morning, R.M. asked her questions and O.M. explained to her what had happened. [ 21 ] O.M. recalled giving a statement to a female officer at the police station the next day.

She had not given a statement on May 23, 2016, as there was no female officer available and she felt more comfortable talking to a woman. [ 22 ] On cross-examination, the Crown pointed out some inconsistencies in the trial evidence of O.M. versus the text messages she had sent to R.M. and the statement she had given to police.

[ 23 ] In particular, when cross-examined, O.M. could not recall having sent texts to her mother earlier in the day on May 22, 2016, saying that she had chest pains and a headache or that a friend of C.D.’s had given her children’s Tylenol. She said she did not recall having any pain that day other than waking up with a pain in her stomach. [ 24 ] Another inconsistency involved circumstances surrounding O.M. going into the bedroom of C.D. and falling asleep there.

In her trial testimony, O.M. said that she had asked C.D. if she could go back to her room to get pants whereas, in her statement to police, she said she asked C.D. if she could go back to her room to get pyjamas. [ 25 ] Also, in her trial evidence, O.M. said that C.D. told her he would rub her stomach and she could go back to sleep. However, in her statement to police, O.M. said that C.D. said he would rub her stomach and she could go back to her own bed. [ 26 ] O.M. also acknowledged on cross-examination that she had no independent recollection of C.D. placing his hand on her bum.

Her only recollection was when she was shown the texts from her mother’s phone and her statement to police. In the police statement, O.M. indicated that C.D. had his hand on her bum “like four seconds and I moved.” When shown her statement, she said she then remembered it and that C.D.’s hand may have been there for less than four seconds. [ 27 ] There was also some inconsistency regarding the reason O.M. deleted her messages with her mother. She indicated at trial that she deleted the messages because she was afraid that C.D. would see that she was talking to her mother and what she was talking about.

However, in her police statement, O.M. indicated that she deleted messages as C.D. had looked through her phone in the past; in particular, her Instagram, Snapchat, messages and notifications. In that statement, she also said her father would go through her phone and then deny it. She told the police officer that C.D. denied other things like doing weed despite the fact that sometimes his car smelled like weed. Her mother also told her that C.D. and his friend sold weed. Evidence of R.M. [ 28 ] R.M. testified that C.D. is her ex-husband. They had a son together, L., who is now eleven years old.

O.M. is R.M.’s biological child but not that of C.D. She confirmed that O.M. and L. generally stayed with C.D. on weekends and had been at the home of C.D. for the May 24 holiday weekend in 2016. [ 29 ] R.M. received texts from O.M. during the day on May 22, 2016, when O.M. was at the home of C.D. Those texts indicated O.M. was having chest pain and headaches. She had been given Children’s Tylenol. [ 30 ] R.M. said that she was then at the home of her boyfriend overnight on May 22/23, 2016 when she received a text from O.M. at approximately 4:00 a.m.

R.M. said that O.M. called her when she did not reply and told her that something had happened. O.M. was whispering as she said that she was afraid C.D. would hear her. She asked R.M. to read her texts. [ 31 ] R.M. said she began to panic when she read her daughter’s texts and woke up her boyfriend. They decided that they would go get the children right away. [ 32 ] R.M. texted and then called C.D. at approximately 6:00 a.m. She told him that O.M. was not feeling well and wanted to go home. C.D. told her she could not take the children as they were asleep.

He also said it was his weekend to have them and that O.M. just had a stomach ache. [ 33 ] When R.M. and her boyfriend arrived at the residence of C.D., they knocked on the door but C.D. would not answer. R.M. called police and showed them the texts O.M. had sent. The police then went to the door and spoke to O.M., asking her what she wanted to do. O.M. said she wanted to go home and she did. L. was still in bed and remained at the residence of his father. [ 34 ] When R.M. and O.M. arrived back home, R.M. asked O.M. questions as to what happened.

R.M. said they only had a half-hour conversation as O.M. was uncomfortable talking about it. In the course of that conversation, R.M. said that she provided O.M. with a teddy bear so she could demonstrate where C.D. had touched her. R.M. acknowledged that she told O.M. the matter was serious and that C.D. could go to jail. She said she left it up to O.M. as to whether to proceed with charges as O.M. was very mature for her age. [ 35 ] R.M. says that she called the parents of C.D. that morning and told them what O.M. told her.

She also reported the matter to police, with both she and O.M. providing statements to police on May 24, 2016. R.M. was not present when O.M. was interviewed. R.M. also provided her phone to the police as it still contained the text messages from O.M. [ 36 ] After the incident, R.M. sought an order for sole custody of the children and so advised the police. R.M. maintained contact with police and eventually told the primary investigator that O.M. wished to go ahead with criminal charges.

Evidence of Constable Morrissey [ 37 ] The primary investigator, Constable Daniel Morrissey of the Royal Newfoundland Constabulary (RNC), testified at trial. He was the officer on duty when R.M. reported the matter on May 23, 2016. He then arranged for a female officer to interview O.M. on May 24, 2016. [ 38 ] Constable Morrissey testified that the Department of Children, Seniors and Social Development, Child and Youth Services division, had also been notified of the incident.

He spoke with social worker, Jessica Hearn, who said she had been attempting to interview C.D. and would continue with her efforts to obtain an interview. Ms. Hearn indicated she would share the results of that interview with Constable Morrissey. [ 39 ] Over the course of the summer 2016, no further progress had been made with respect to the investigation and the RNC concluded its file. However, upon receipt of a report from social worker Hearn on September 14, 2016, the investigation was reopened and a decision was made to arrest C.D.

[ 40 ] However, the information was not laid until January 23, 2017. Constable Morrissey indicated that he had been in continued contact with R.M. throughout the fall of 2016 to determine whether O.M. wished to proceed with the charges. He also took that time to consult with several Crown attorneys with respect to the laying of charges. Evidence of Mitchell Keeping [ 41 ] Mitchell Keeping, a computer forensic examiner with the RNC, testified that he acquired data from the cell phone of R.M. and extracted it to identify the text messages exchanged between O.M. and R.M.

His report identifying these messages was entered as an exhibit at trial. Evidence of C.D. [ 42 ] C.D. testified that he had been in a relationship with R.M. for several years and they later married. The couple separated in approximately 2010. He described his relationship with R.M. as troubled but said that both tried to be amicable. [ 43 ] C.D. said he generally had access with both O.M. and L. on weekends, with occasional weekday access. He has had no access with either child since the incident. [ 44 ] At the time of the incident, C.D. was renting a two-bedroom basement apartment in a house in St. John’s.

When the children were having overnight access with him, they would share a bedroom with bunkbeds. [ 45 ] C.D. recalled that on May 22, 2016, O.M. had been complaining that she was not feeling well. However, he did not feel this was unusual and O.M. took Children’s Tylenol, both before supper and shortly before she went to bed. [ 46 ] C.D. testified that he had been watching television that night. He smoked a couple of joints and took two prescription pills for back pain before going to bed. [ 47 ] C.D. said that O.M. came to his bedroom and woke him in the middle of the night, complaining of a bad belly.

He said that she asked him to rub her belly. He said he would and that she could then go back to her own bed. [ 48 ] C.D. testified that it would not be unusual for either O.M. or L. to come into bed with him if they were not feeling well. He said he would occasionally wake up with both children in his bed when they slept over on the weekend. [ 49 ] C.D. thought that O.M. was wearing shorts and a t-shirt when she came to his room, but acknowledged that she may have been wearing a shirt and underwear. He recalls O.M. asking him if she should go back to get her pyjamas and he said it was up to her.

C.D. said O.M. then climbed into bed. They both fell asleep but he was not sure which of them fell asleep first. [ 50 ] C.D. said that the next thing he recalled was waking in the middle of the night to realize that both he and O.M. had fallen asleep. His hand was under O.M.’s arm, towards her armpit. He felt that his arm was too close as he could feel that O.M. was wearing a bra. He did not know whether O.M. was awake. However, he moved his arm and went back to sleep. [ 51 ] The next time C.D. woke, he noticed that O.M. had moved in the bed and was laying on a pillow with her head higher than his.

He noticed that she was drooling somewhat as the drool was falling onto his head. He said he then wiped the drool from O.M.’s face and turned the opposite way, going back to sleep. [ 52 ] The next time he recalls waking up, it was apparent that both he and O.M. had been tossing and turning. He realized his hand was on the side of O.M.’s lower hip, close to her bum. O.M. tossed again and went onto her back. [ 53 ] The next time C.D. woke, his hand was on O.M.’s hip, close to her upper thigh. He realized that his hand was too close to her underwear line and he immediately removed it to O.M.’s stomach.

C.D. said O.M. then woke up and said she was going back to her own bed. He said okay and turned over and went back to sleep. [ 54 ] It was shortly after O.M. left the room that C.D. received a phone call from R.M. She had also previously texted him. R.M. told C.D. that she was coming to get the children. As far as he knew, both children were asleep and he became upset with R.M. for trying to get the children at such an early hour.

He would therefore not allow R.M. to take them. [ 55 ] When the police arrived at his door, C.D. advised O.M. and she indicated that she would be leaving. [ 56 ] C.D. was adamant that, at all times, there was no skin on skin contact and his hand was never underneath O.M.’s clothing. He said there was no way that he sexually touched O.M. and would never do such a thing. He did not become aware of the allegations until his parents called him the next morning. law and analysis [ 57 ] As in all criminal prosecutions, I am mindful that it is the Crown who must prove guilt beyond a reasonable doubt.

In the 1997 Supreme Court of Canada decision in R. v. Lifchus , [1997] 3. S.C.R. 320, Corey, J. described reasonable doubt at paragraph 36, as follows: 36 …It should be explained that: the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the

presumption of innocence; the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; a reasonable doubt is not a doubt based upon sympathy or prejudice; rather, it is based upon reason and common sense; it is logically connected to the evidence or absence of evidence; it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and more is required than proof that the accused is probably guilty — a jury which concludes only that the accused is probably guilty mustacquit. [58] In a 2000 decision, R. v.

Starr, 2000 SCC 40, the Supreme Court of Canada described the standard as much closer to absolutecertainty than to proof on a balance of probabilities. [59] In cases where credibility is relevant, a trial judge does not need to firmly believe or disbelieve any witness or set of witnesses. Where the accused testifies, I am also mindful of the instructions of the Supreme Court of Canada in R. v.

W. (D.), (SCC), [1991] 1 S.C.R. 742, at paragraph 11, where the court describes how a trial judge must instruct on the question of credibility. 11 Ideally, appropriate instructions on the issue of credibility should be given not only during the main charge, but on any recharge. Atrial Judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [60] In a more recent decision of the Newfoundland and Labrador Court of Appeal, in R. v. K. P., 2019 NLCA 37, the courtdescribed the W. (D.) framework as a “helpful map”, relying upon the Supreme Court of Canada’s decision in R. v. Y. (C.L.), 2008 SCC2.

In that case, the majority of the Supreme Court of Canada noted that the purpose of this map is to ensure a verdict is not based on achoice between the evidence of the accused and that of the Crown. The trial judge must consider whether the whole of the evidenceleaves him or her with a reasonable doubt on the accused’s guilt. [61] As such, while the W. (D). three-part instruction is a helpful tool, it merely instructs a trial judge to consider the totality of theevidence.

Again, the Crown still bears the burden of proving guilt beyond a reasonable doubt. position of the crown [62] The Crown says that it has met its burden through the testimony of O.M. The Crown says that the evidence of O.M.establishes beyond a reasonable doubt that O.M. awoke to find C.D.’s thumb rubbing her vagina. C.D.’s hand then went up highertowards her chest.

It was then that O.M. pretended to wake up and said she was leaving the room. [63] The Crown concedes there were minor inconsistencies in O.M.’s evidence at trial versus both the text messages she had sent toher mother and the evidence in her statement to police. However, it says these variances are minor in nature and do not serve toundermine the credibility of O.M. in any manner. [64] The Crown notes that when O.M. could not recall something that she told R.M. or the police, she frankly acknowledged herfailure to recall.

However, she accepted what was in the texts and her police statement once reminded. [65] In considering the credibility and reliability of O.M.’s evidence, the Crown asks that I take into account her age, both at thetime of the incident and at the time of trial. More than four years had passed in the life of a young child.

[66] The Crown refers to the decision of the Supreme Court of Canada in R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122,in which the court recognized that there should not be different “adult” or “child” standards when it comes to assessing the evidence of awitness. However, the court stated: 27 …Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed byreference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this.

In general,where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteriaapplicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence ofinconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of thewitness at the time of the events to which she is testifying. [67] In a later 2011 decision of the Supreme Court of Canada, R. v.

B. (G.), (SCC), [1990] 2 S.C.R. 30, Wilson, J.also recommended that judges take a common-sense approach when dealing with the testimony of young children and not impose thesame standard as it does on adults. Nevertheless, at paragraph 56, the court cautioned as follows: However, this is not to say that the courts should not carefully assess the credibility of child witnesses, and I do not read his reasons assuggesting that the standard of proof must be lowered when dealing with children, as the appellants submit.

Rather, he was expressingconcern that a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimonyof an adult. I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precisedetails and communicate the when and where of an event with exactitude, this does not mean that they have misconceived whathappened to them and who did it.

In recent years we have adopted a much more benign attitude to children's evidence, lessening thestrict standards of oath-taking and corroboration, and I believe that this is a desirable development.

The credibility of every witness whotestifies before the courts must, of course, be carefully assessed, but the standard of the "reasonable adult" is not necessarily appropriatein assessing the credibility of young children. [68] The Crown asserts that, given the lapse of time and the general consistency of the complainant’s evidence, it has met its burdenof establishing beyond a reasonable doubt that the evidence of O.M. is credible.

It says that evidence establishes all elements of theoffences of sexual assault and sexual touching. [69] Applying W. (D.), I must then consider whether the evidence of C.D. should be accepted or whether it is sufficient to raise areasonable doubt as to the essential elements of the offence. If I do not accept his evidence, of course, I must still look to the totality ofthe evidence to determine whether the commission of the offences have been proven beyond a reasonable doubt. [70] The Crown asserts that the evidence of C.D. is incredible and defies logic.

The Crown says it is not believable that C.D. wouldhave awoken numerous times throughout the night with his hand on O.M.’s body in areas that would be considered sexual in nature. [71] The Crown also points to C.D.’s evidence that he told O.M. it was up to her as to whether she wore pyjama pants. The Crownsays that if O.M. was concerned enough to ask that she go back to her room to get pyjamas, she would have gone back to her room to getthem if C.D. had said it was okay. [72] The Crown also refers to the evidence of C.D. when he said that at no time was there any skin on skin contact.

However, heacknowledged having his hand on O.M.’s upper thigh when she was not wearing pyjama pants. As such, there must have been skin onskin contact. [73] The Crown refers to a decision of Green, J, then of this Court, in R. v. M. (W.A.), [1993] N.J. No. 376, 1993 CarswellNfld 376(N.L.S.C. (T.D.)), in which he commented upon the sexual nature of the crime of sexual assault. At paragraph 5, Green, J. refers to thedecision of the Supreme Court of Canada in R. v.

Chase, (SCC), [1987] 2 S.C.R. 293, in which the court describedsexual assault as an assault “committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated”. [74] In that same paragraph, Green, J. noted that the test for sexual assault is described as being an objective one. The conduct mustbe viewed in light of all the circumstances. The question to be asked is whether the sexual or carnal conduct of the assault would bevisible to a reasonable observer.

One must consider the part of the body touched, the nature of the contact, the situation in which itoccurred, the words and gestures accompanying the act and all other circumstances surrounding the contact, including threats which mayor may not be accompanied by force. The offence is one requiring general intent only. [75] The Crown refers to the evidence of O.M. in which she said that C.D. was moving his thumb on her vagina.

The Crown saysthat this is clear evidence of touching that, objectively viewed, was of a sexual nature and occurred in circumstances of a sexual nature. [76] With respect to the offence of sexual touching, the Crown submits that the evidence also establishes beyond a reasonable doubtthat C.D. had the specific intent to touch O.M. for a sexual purpose. position of the accused [77] On the contrary, counsel for the Accused submits that I should carefully approach the evidence of O.M., noting she had one ormore conversations with R.M. before speaking with the police and, again, before she testified. [78] Further, O.M. had no independent memory of some of the allegations and could not recall events such as taking medication onthe evening before the incident.

She also had no recollection of complaining of headaches or chest pains, nor could she recall that sheadvised her mother and the police that C.D.’s hand was on her bum. [79] Counsel for the Accused also submits that O.M. was not forthright in explaining why she had deleted messages she had sent toher mother immediately after the incident. In her statement to police, O.M. said that she had issues with C.D. over her phone in the pastas he looked through her social messaging apps. She therefore felt that he was not honest with her. Her statement to police alsoindicated that she viewed C.D. in a negative light.

Overall, counsel for the Accused suggests that the evidence of O.M. was coloured, in

an effort to paint C.D. in that negative light. [80] However, perhaps the most significant area in which the position of the Accused differs from that of the Crown, is the issue ofwhether the evidence establishes that there was any intent by C.D. to touch O.M. for a sexual purpose (the

section 151(

a) offence), or tointentionally apply force to O.M. in circumstances of a sexual nature (the

section 271(

a) offence). [81] Counsel for the Accused refers to a decision of the Manitoba Court of Appeal in R. v. Bone (1993), (MBCA), 81 C.C.C. (3d) 389, 41 W.A.C. 220 (Man. C.A.), in which the court spoke of the essential elements of a charge under

section 151of the Criminal Code. At page 392, the court noted that the offence of sexual touching under

section 151 is a specific intent offencerequiring the Crown to prove the accused had the specific intent of touching to achieve a sexual purpose. [82] In the case of sexual assault, the Crown must prove that the application of force, which would include touching, took place incircumstances of a sexual nature. [83] Counsel for the Accused refers to the Supreme Court of Canada’s decision in R. v. Ewanchuk, (SCC), [1999]1 S.C.R. 330.

While this case is more commonly referred to for its guidance on the essential element of consent, the court alsocommented upon all essential elements of the offence of sexual assault. [84] In particular, at paragraph 23, the court noted that a conviction for sexual assault requires proof beyond a reasonable doubt oftwo basic elements, i.e., that the accused committed the actus reus and that he had the necessary mens rea. [85] With respect to the actus reus of sexual assault, the court noted that this is established by the proof of three elements: (

i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. [86] The first two of these elements are objective. It is sufficient for the Crown to prove that the Accused’s actions were voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the Accused had any mens rea with respect tothe sexual nature of his or her behaviour: (See R. v. Litchfield, (SCC), [1993] 4 S.C.R. 333, and R. v.

Chase, (SCC), [1987] 2 S.C.R. 293). [87] In contrast to the crime of sexual touching, at paragraph 41, the court noted that sexual assault is a crime of general intent. TheCrown need only prove that the Accused intended to touch the complainant in order to satisfy the basic mens rea requirement. [88] Counsel for the Accused says that the touching in this case was not of a sexual nature. It involved a situation in which a childhad woken her father late at night. She got into her father’s bed so that he could rub her belly and help her feel better.

Both parent andchild fell asleep, with each tossing and turning throughout the night. Viewed objectively, a reasonable person would not conclude thatthe touching that took place was intentional touching in circumstances of a sexual nature. [89] Further, counsel for the Accused submits that the Crown did not even prove the Accused had any intent to actually touch O.M. The evidence established that any touching that happened was unintentional on the part of the Accused. [90] With respect to the

section 151(

a) offence, counsel for the Accused similarly submits that the Crown has failed to prove thatC.D. had the specific intent to touch O.M. for a sexual purpose. analysis [91] I have carefully considered the totality of the evidence at trial. In this case, the evidence of O.M. and C.D. differs slightly, butnot significantly. [92] It is evident that at some point during the overnight of May 22/23, 2016, O.M. awoke in her father’s bed to find C.D.’s handbriefly on or near her vaginal area. C.D. then moved his hand upwards, closer to her chest.

By his own evidence, C.D. acknowledgesthat he woke up at another point during the night with his hand closer to O.M.’s bum. [93] While O.M. had no independent recollection at trial that C.D. had touched her bum, she acknowledged her lack of memory inrespect of that detail and accepted that her texts and statement to police were correct.

In fact, she frankly acknowledged that she hadforgotten some details but said that she remembered most. [94] I am mindful of the comments of the Supreme Court of Canada in B. (G.) and W. (R.), referred to above, which direct me toassess the credibility and evidence of children using criteria appropriate to their mental development, understanding and ability tocommunicate. In this instance, O.M. was twelve years old at the time of the incident and was testifying at the age of sixteen, more thanfour years later.

It is not surprising that a child of sixteen would not remember all details of an incident that occurred more than fouryears ago. Similarly, it is not surprising that O.M. did not recall that she may have been having chest pains and a headache before goingto bed on May 22, 2016. This does not mean that her evidence is any the less credible. [95] I also acknowledge that O.M. gave slightly inconsistent evidence at trial than she had given to the police in respect of whetherC.D. told her she could go back to her own bed after he rubbed her belly to help her feel better.

Again, I find this is a minorinconsistency that does not affect the overall credibility of her evidence.

[ 96 ] There was also a minor inconsistency in how O.M. described why she deleted her texts to R.M.

This inconsistency can be characterized more as a failure to expand on an explanation than a lack of memory or an effort to mislead. [ 97 ] However, I find that this case turns not so much on the question of credibility, but as to whether the evidence of O.M., even if believed in its totality, is sufficient to prove all of the essential elements of the offences beyond a reasonable doubt. [ 98 ] With respect to the first essential element of the offence of sexual assault, I am satisfied that the Crown has proven that element beyond a reasonable doubt: namely, that C.D. applied force to O.M. [ 99 ] It is the second element that is more problematic.

I find that there is no evidence that anything that happened was in fact intentional on the part of C.D. [ 100 ] Having carefully considered the evidence of O.M., at no time did she say that C.D. was awake and aware of his actions at the time that he placed his hand near any part of her body that would be considered sexual. O.M.’s evidence was she assumed C.D. was awake when he replied to say it was okay for her to return to her own bed. This was after he had moved his hand from the area of her underwear. [ 101 ] This is a situation when both child and parent had fallen asleep in the same bed.

The child had not been feeling well earlier in the evening and had taken medication. It would not be unusual to have unintended contact between a parent and child while tossing and turning in the same bed throughout the night. The circumstances in which they were sleeping are consistent with an innocent explanation of what happened. [ 102 ] Even if the touching was intentional, I still must consider the fourth element of the offence: ie., whether the force that C.D. applied took place in circumstances of a sexual nature.

As noted by Green, J. in M. (W.A.) , an objective assessment of whether the application of force took place in circumstances of a sexual nature requires me to consider the act(

s) complained of in light of all of the circumstances. [ 103 ] Clearly, the fact that C.D.’s hand was on or near O.M.’s vaginal area suggests that the touching was of a sexual nature. However, I must also take into account the fact that the evidence indicates the contact appears to have been very brief. O.M. said C.D.’s thumb was moving but that he then moved his hand away. O.M. could not say how long the contact was or whether the contact was above or underneath her underwear.

Again, there is no evidence that C.D. was even awake when he placed his hand in that area or that he was aware his thumb moved. [ 104 ] Further, the movement of C.D.’s thumb could have occurred in the course of him moving his hand from that area. C.D. made no other words or gestures that would indicate that the act was of a sexual nature. [ 105 ] Further, while O.M. said C.D.’s hand was moving towards her chest area, this is consistent with C.D. placing his hand back on her belly.

Touching that area of the body would not be objectively considered as occurring in circumstances of a sexual nature. [ 106 ] I also have to consider the situation in which the touching occurred. As noted above, this is a situation in which a child had woken her father because she was not feeling well. They fell asleep while he was attempting to comfort her by rubbing her belly. To a reasonable observer, unintentional brief touching between parties sharing the same bed and falling asleep while having innocent contact could reasonably have an innocent

interpretation. I therefore find that the evidence of the Crown fails to prove the fourth essential element of sexual assault beyond a reasonable doubt; i.e., that the force took place in circumstances of a sexual nature. [ 107 ] With respect to the offence of sexual touching, I reiterate my findings above. I am not satisfied the Crown has proven the first essential element: i.e., that C.D. intentionally touched O.M.

He clearly made physical contact with O.M. but there is no evidence that he intended to do so. [ 108 ] With respect to the third essential element of sexual touching, i.e., that the touching was for a sexual purpose, I reiterate my findings above. It is incumbent upon the Crown to prove beyond a reasonable doubt that C.D. intentionally touched O.M. for the achievement of a sexual purpose. As there is an equally innocent explanation for the touching, the Crown has failed to satisfy me that C.D. had the specific intent required to enter a conviction under

section 151 of the Criminal Code . [ 109 ] Having made these findings, I wish to emphasize that this is not a situation in which I do not believe O.M. I am satisfied that she provided her evidence to the best of her ability and recollection. However, the fact that she interpreted the brief touching as intentional and of a sexual nature is not sufficient for me to enter a conviction against C.D. [ 110 ] A criminal conviction requires proof beyond a reasonable doubt. That is a very high standard. Where there is an

interpretation of the acts that is equally consistent with an innocent explanation, I am clearly left with a reasonable doubt. I must therefore enter an acquittal on both charges. [ 111 ] Given the above findings, I do not need to carry out a detailed assessment of the credibility of the Accused. However, I would like to add that, even if the evidence of O.M. had proven the essential elements of the offences beyond a reasonable doubt, I would have entered acquittals based on the evidence of C.D. [ 112 ] I do not agree with the Crown’s characterization of C.D.’s evidence as being incredible.

In fact, I found his evidence and explanation to be believable. [ 113 ] C.D. acknowledged that he woke on occasions with his hand in an area that was too close to parts of O.M.’s body that would be considered sexual. He immediately moved his hand. This is consistent with the evidence of O.M. [ 114 ] I also do not find it unbelievable that C.D. would have woken more than once at night with his hand touching or near different areas of O.M.s body. It must be recalled that both child and father had not been feeling well. The father had taken medication for back

pain. The daughter had taken Tylenol and was not feeling well. In those circumstances, it would not be unusual for both to toss and turn in bed. [ 115 ] While I acknowledge that C.D. said there was no skin on skin contact, he clearly said in his evidence where his hand had been and what O.M. was wearing. I took his comment to mean that he had not placed his hand under O.M.’s clothing. [ 116 ] Finally, with respect to the suggestion that it is not believable that O.M. would have gone back to her room to get pyjama pants if C.D. said it was up to her, that suggestion must be placed in context.

C.D. also said that he told O.M. she could go back to her own bed after he rubbed her belly. That evidence conforms with the statement O.M. gave to the police the day after the incident. If O.M. was expecting to go back to her own bed shortly, it is not surprising she would decide not to go back and get pyjama pants. CONCLUSION [ 117 ] The evidence on the first and second counts in the Indictment was insufficient to prove the offences beyond a reasonable doubt. As a result, I find the Accused not guilty on both charges.

An acquittal is therefore entered on all counts on the Indictment. _____________________________ Rosalie McGrath Justice