Case Name:
R. v. [REDACTED]
Between
Her Majesty the Queen, and
[REDACTED]
[2014] O.J. No. [REDACTED]
Ontario Court of Justice
Oshawa, Ontario
[REDACTED]
Heard: September 11, 2014.
Oral judgment: September 11, 2014.
(35 paras.)
Counsel:
[REDACTED], Counsel for the Crown.
[REDACTED], Counsel for the Accused.
REASONS FOR JUDGMENT
1 [REDACTED] (orally):-- Counsel, thank you for your patience. I'm able to give you the judgment this afternoon. This is the judgment in the case of [REDACTED]. [REDACTED] is charged with two offences involving his biological daughter [REDACTED], sexual; interference under s.152 of The Criminal Code and exposure of his genitals to a person under the age of 16 under s.173(2) of The Criminal Code.
2 The Crown relied on the evidence of [REDACTED] mother, [REDACTED] and the lead investigator Detective [REDACTED]. The Defence did not call any evidence. The Crown filed a Khan Application regarding [REDACTED] disclosure to her mother on August 5th and her videotaped statement to the police on August 8th. The application was blended with the trial.
3 At the close of the Crown's case I ruled that the first statement was admissible for the truth of its Contents and that the second statement was in admissible.
4 These are the facts: [REDACTED] and [REDACTED] were in a relationship from 2003 to 2009, together they have one child, [REDACTED] In December 2009, [REDACTED] ended the relationship with [REDACTED]. [REDACTED] retained full custody of [REDACTED] and [REDACTED] regularly visited her father including weekend and overnight visits.
5 In the summer of 2013, [REDACTED] was five years old. On August 5th, she came home from a weekend with [REDACTED]. That night after her bath she told her mother that she and [REDACTED] had naked time and watched movies together. [REDACTED] further disclosed that she had touched [REDACTED]’s penis and used an up and down motion with her hands to demonstrate how. [REDACTED] believed the motion made by [REDACTED] was for masturbation, she therefore called the police.
6 I turn now to the legal analysis, the Crown bears the onus of peeving its case beyond a reasonable doubt. A reasonable doubt is not a farfetched or frivolous doubt it is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or the lack of evidence.
7 In this case the only evidence is the disclosure [REDACTED] made to her mother, [REDACTED], on August 5th, I note that [REDACTED] was an excellent witness, she testified in a straight forward manner and she was careful and thoughtful with her answers. Although she refreshed her memory during her examination in-Chief, this was only to clarify what was said to her by [REDACTED] on August 5th.
8 Subsequent to the August 5th discussion, [REDACTED] made further disclosures and [REDACTED] only temporary confusion was over what was said when. There was no evidence that [REDACTED] harbored any ill will towards [REDACTED] prior to the disclosure nor that she had any grave concerns that she might lose custody of [REDACTED] if [REDACTED] moved out west. There was no evidence to support any motive for [REDACTED] to lie or to concoct her evidence.
9 The real issue is whether a simple, isolated, spontaneous statement from a five year old child alleging she has masturbated her father is sufficient to amount to proof beyond a reasonable doubt.
10 I find that it is not, for the following reason: the statement was not detailed, for example, there was no evidence whether [REDACTED] was referring to a recent or dated incident or to an isolated act, or on-going activity. There was no admissible evidence that [REDACTED] stuck to her statement. In her second interview with the police on August l6th she refused to discuss anything related to the allegations. There Was no other evidence supporting any aspect of [REDACTED] statement to her mother. Based on these reasons I conclude that the Crown has not proven its case beyond a reasonable doubt and I therefore find [REDACTED] not guilty of the two offences before the Court.
11 [REDACTED]: Thank you, Your Honour.
12 THE COURT: You're welcome
13 [REDACTED]: I advised [REDACTED] that in the event that you were to acquit [REDACTED] that I would seek a Peace Bond under s. 810.1 on the basis of the evidence before the Court today, That's; a Peace Bond directly in relation to reasonable fears - reasonable fear of a commission of an offence against a child, a sexual offence
14 THE COURT: I'm just looking up the s. 810.1 provisions. [REDACTED], you are on your feet., did you want to address this issue?
15 [REDACTED]: Yes, I am contesting that, Your Honour; and I'm not in a position right now to prepare - to prepare even a detailed response. My friend did mention this to me shortly before you gave your reasons. However, given that I didn't know one way or another what would be happening with your judgment, I'm not in a position to proceed with respect to that issue today.
16 THE COURT: Okay.
17 [REDACTED]: I don't think it's necessary. [REDACTED]. was just acquitted of all charges and would be opposing it absolutely. I know [REDACTED] would be opposing any type of restrictions so...
18 THE COURT: So does this mean that I have you see the Trial Coordinator to find a future that you come back and see me to address this application?
19 [REDACTED]: That would be my - my preference, yes.
20 THE COURT: Okay, that's fine. Do you think an hour would do it?
21 [REDACTED]: Oh, I think so.
22 [REDACTED]: Yeah, I think so.
23 THE COURT: Okay.
24 [REDACTED]: Yeah.
25 THE COURT: If you think half an hour would do it, tell the Trial Coordinator half an hour. Okay, why don't you figure out; a reasonable period; of time to have this addressed? Sorry, I'm just trying; to look at s. 810.1, so a person makes an application on behalf of someone under the age of 16. So who is the person; making the application?
26 [REDACTED]: it could be me, it could Ms. [REDACTED]
27 THE COURT: Okay. what types of terms were you wishing?
28 [REDACTED]: I was 'really just seeking terms to protect [REDACTED] So terms that he remains away from her and that he not communicate with her.
29 THE COURT: Is that issue not being addressed by Family Court?
30 [REDACTED]: It may be addressed. Currently the - I understand that the custody order is still in effect. I know I can advise there's -- there's somebody from CAS here who has been monitoring the entitle proceeding.
31 THE COURT: That was going to be my next question, is CAS not still involved in this matter?
32 [REDACTED]: They are, still involved, they have been monitoring the proceedings, but that's something separate and apart. I don't know what their processes are. I'm --
33 THE COURT: Why don't; you see the Trial Coordinator and find a reasonable date to come back and see me but I encourage Crown and Defence to; speak to each other and find out what the plan is, both from Family Court And CAS perspective and see if this is still something that needs to be pursued. Okay?
34 [REDACTED]: Thank, Your Honour.
35 THE COURT: Okay. The staff have not had the recess so why don't I send you down and expect, you back in about ten minutes.
