R. v. G.M., 2015 ONCJ 673

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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. ONTARIO COURT OF JUSTICE CITATION: R. v. G.M. , 2015 ONCJ 673 DATE: 2015·11·27 COURT FILE No.: Peterborough 15-0429 BETWEEN: HER MAJESTY THE QUEEN — AND — G.M.

Before Justice S. W. Konyer Heard on November 24, 2015 Reasons for Judgment released on November 27, 2015 Ms. S. Repka ........................................................................................... counsel for the Crown Mr. D. Lowry ............................................................................. counsel for the defendant G.M. KONYER J.: [1] G.M., age 23, was tried before me on allegations that he sexually touched 3 year old K.C. on February 22, 2015.

Specifically, he is charged with sexually assaulting K.C. and with touching K.C.’s body with his hands for a sexual purpose, contrary tosections 271 and 151 of the Criminal Code, respectively. [2] This was a short trial, and I am indebted to counsel for their professionalism in dealing with the evidence and the issues inthis case. K.C. testified briefly and adopted the contents of a video-recorded interview with police made on March 2, 2015 where he toldthe police that Mr. G.M. touched his penis and buttocks.

K.C.’s primary caregiver, his grandmother K.W., testified that K.C. made asimilar disclosure to her on February 22 after Mr. G.M. had been alone with K.C. and she noticed that the boy’s pants and diaper wereaskew. Mr. G.M. testified in his own defence and denied touching K.C. on his penis, buttocks or in any sexual manner whatsoever. [3] It is conceded that all of the essential elements, other than touching, of each of the charges against Mr. G.M. are proven. Therefore, the only issue that I must decide is whether the Crown has proven beyond reasonable doubt that Mr. G.M. touched K.C. in thesexual manner alleged.

If I am not sure of this essential element, then I must find him not guilty of each charge. [4] Like anyone charged with a criminal offence, Mr. G.M. is presumed innocent. This only changes if the Crown proves hisguilt beyond reasonable doubt. Since I have heard conflicting evidence on one of the essential elements of the charges before me –namely, whether the sexual touching occurred – in order to resolve the conflict I must assess the credibility and reliability of thewitnesses who testified. If I believe Mr.

G.M. that he did not touch K.C. in a sexual manner, or if his denial when considered in thecontext of all of the evidence leaves me with a reasonable doubt, I must find him not guilty. Even if I find that I am not left with areasonable doubt by Mr. G.M.’s evidence, I must still consider whether I am sure that he touched K.C. in a sexual manner based on theevidence which I do accept. [5] It is challenging to assess the credibility and reliability of a 3 year old witness. K.C. appeared to be a bright, engaging, andresponsive child.

Clearly I cannot assess his credibility as a witness to an adult standard (see, for example, R. v. R.W., (SCC), [1992] S.C.J. No. 56, at paras. 23-26), and it would be wrong to conclude that he is less credible due to confusion about times,dates or details about what clothing he was wearing at the relevant time. K.C. clearly knows Mr. G.M. as someone who frequentlyvisited his home to play music and watch auto racing on television, facts confirmed by both his grandmother and Mr. G.M. himself. K.C. clearly made a statement to his grandmother on February 22 that Mr.

G.M. had touched his penis, prompting the policeinvestigation. There is nothing about the content or circumstances of his recorded police statement, adopted by him at trial, which wouldcause me to disbelieve what K.C. had to say. [6] Having said that, however, what I cannot determine from K.C.’s evidence alone is how the touching occurred, includingwhether it was deliberate or accidental. At the time he testified, K.C. had no present recollection of the incident, which is not surprisinggiven his age and the passage of time.

When interviewed by police approximately one week after he first made a statement to hisgrandmother, K.C. was asked “[d]id he touch it on top of your pants or underneath your pants?” He replied simply: “[m]y pants.” Thisis illustrative of the lack of precision found throughout the evidence of this 3 year old witness. While this too is unsurprising, it doesmake it difficult to rely on K.C.’s statement as it cannot effectively be tested in any meaningful way. [7] K.C.’s grandmother, K.W., testified for the Crown.

She and her husband are K.C.’s guardians, and it appears from hertestimony as though she is K.C.’s primary caregiver. Superficially, her evidence is compelling. She testified that she left K.C.momentarily in Mr. G.M.’s unsupervised care while she used the washroom. Immediately after this, she noticed that K.C.’s pants anddiaper were not in their normal state. When she questioned K.C., he disclosed that Mr. G.M. had touched his penis. [8] On closer examination, however, her evidence is troubling in a number of respects. She testified that Mr.

G.M., the son of afamily friend, would regularly attend their residence and get drunk watching auto racing and playing music with his father and herhusband. They would drink and smoke in the basement while she cared for K.C. in the same home. I gather from her evidence that shetolerated this behaviour, prepared them meals, and had no concerns with their behaviour in the home of a young child, from which I canonly conclude that her own judgment is lacking. If her evidence is true, she left K.C. in the exclusive care of Mr.

G.M. while he was soimpaired by alcohol that he was tripping over items in her home shortly before passing out. According to her, she left K.C. alone withMr. G.M. while he was impaired to this degree when the sexual touching must have occurred. [9] There is an inconsistency between her apparent nonchalance towards the environment to which K.C. was routinely exposedon her evidence and her claim of attentiveness to the condition of K.C.’s pants that is difficult to reconcile. I find that I am unable tohave confidence in her ability to reliably relate the facts of this case to me.

[ 10 ] For his part, Mr. G.M. maintains that he was sober this evening, and that he only consumed two moderate alcoholic beverage over the course of several hours. He denies tripping over anything in the house, denies passing out, and maintains that he was never left alone with K.C.. [ 11 ] His evidence was also problematic in some respects. He initially testified that he only came up from the basement once and said that K.C. was in a high chair on this occasion.

When confronted with inconsistencies in his statement to police, the voluntariness of which was conceded, he acknowledged that he had actually been upstairs to use the washroom twice, and that on the second occasion K.C. had followed him briefly inside the bathroom. This inconsistency goes to the heart of his evidence and makes it impossible for me to accept his testimony. [ 12 ] As between Mr. G.M. and Ms. K.W., I cannot decide where the truth lies. A criminal trial is not a credibility contest, and I do not have to decide whom to believe. In this case, I cannot be sure whether Mr. G.M. was intoxicated or not.

Nor can I be sure whether he had the opportunity to sexually touch K.C. as alleged by Ms. K.W.. I am sure that K.C. made a statement of some sort to Ms. K.W. that Mr. G.M. touched his penis, just as he later repeated to the police, but I am not sure that he made this statement in the circumstances related by Ms. K.W.. [ 13 ] Although I cannot say that I believe Mr. G.M.’s denial, his testimony does leave me with a reasonable doubt when I assess his evidence in light of the evidence as a whole. I am simply not sure whether Mr. G.M. in fact touched K.C.’s penis or buttocks.

In those circumstances, I must find him not guilty. Released: November 27, 2015 Signed: “Justice S. W. Konyer”