C.A.C. No. 02824
NOVA SCOTIA COURT OF APPEAL
Matthews, Roscoe and Pugsley, JJ.A.
Cite as: R. v. M.H., 1993 NSCA 128
BETWEEN: )
)
M. H. ) Brian V. Vardigans
) for the Appellant
Appellant )
)
- and - )
)
HER MAJESTY THE QUEEN ) Kenneth W.F.Fiske,Q.C.
) for the Respondent
Respondent )
)
)
) Appeal Heard:
) June 14, 1993
)
) Judgment Delivered:
) June 24, 1993
|
Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
THE COURT: The appeal against conviction is dismissed as per reasons for judgment of Pugsley, J.A.; Matthews and Roscoe, JJ.A., concurring.
PUGSLEY, J.A.:
The appellant appeals from his conviction by the Youth Court judge who, on January 28, 1993, found him guilty of sexual assault on M.A., a three year old female child, contrary to s. 271 of the Criminal Code.
The young offender was born on January [...], 1979. The trial was held on January 11, 1993. The Crown called an adult witness, M.J., as well as two children. The victim, M.A., was not called because of her age.
The appellant did not testify, and called no evidence.
The appellant's contentions may be summarized as follows:
(1) The trial judge erred in law in finding there was sufficient evidence to establish the actus reus necessary for a sexual assault.
(2) The trial judge erred in law when he admitted the evidence of the two children as "similar fact" evidence.
While in a room on the second floor of her apartment, at approximately 11:30 a.m. on June 13, 1992, which was a sunny day, Mrs. J.'s attention was attracted to the young offender's voice immediately outside her window. He was asking other children to hide and that he and M.A. would "come and find you".
Mrs. J. looked out her open window and saw M.A. immediately beneath the window and approximately eight feet away. M.A. laid down on her back under a rose bush. She put her hands up behind her head. Mrs. J. could clearly see her from the neck down
The appellant was sitting beside M.A. He lifted up her pants and put his hand down inside the pants and started moving his hand. His hand was between her clothes and her flesh. His hand was out of her vision and was "right up to his wrist" under her pants.
The appellant lifted her pants a second time. The appellant then laid his head on M.A.'s lap. He lifted his head up and his hand went down into her pants again.
Mrs. J. did not hear any sound from M.A., but could hear the young offender mumbling and talking softly to her.
She was asked in cross-examination:
"Q. You can't say beyond a doubt in your mind, you can't say for sure that he was touching her private parts, being her vagina area?
A. Well, I just assumed that he was because his hand was like this and he was rubbing, so . . ."
Mrs. J. testified "I just turned and walked away 'cause I didn't want to believe that I saw what I saw."
Approximately one hour later, while in her kitchen on the main floor, Mrs. J. looked out the kitchen window which was also open and saw the appellant and M.A. in the same location and same position as before.
The appellant used his left hand to hold up M.A.'s pants and his right hand was "just ready to go down inside her pants".
Mrs. J. hollered out the window calling the young offender by name:
"What the hell do you think you're doing to M.A.?"
To which the young offender responded:
"I'm just tickling her. "
Mrs. J. explained in court:
"If you tickle a small child like that they're going to laugh, and she wasn't making a sound."
The young offender had a startled look on his face.
At the conclusion of Mrs. J.'s evidence, the Crown moved to call two male children, W.G. age eight, and A.N. age six, to give "similar fact" evidence.
Counsel for the young offender objected, principally on the ground, that prior to the Crown being able to provide similar fact evidence, the Crown was obliged to establish a prima facie case.
The Youth Court judge, in the course of granting the Crown's motion, stated:
"I don't think it's necessary for the Crown to have a prima facie case at this time, but regardless of that I am satisfied that they do have it."
(emphasis added)
W.G. and A.N., after suitable inquiry from the Youth Court judge, were permitted to testify, but not under oath.
Each described, one or more incidents, where the young offender put his hand down their pants and touched them on their penis.
The Youth Court judge concluded:
"The Crown's evidence consisted of one adult, a female witness, M. J., and two male children, W. age eight and T. age 6 who gave strikingly similar fact evidence, which was accepted by the Court especially on the issue of mens rea or intent. . . I am satisfied that the witness (Mrs. J.) was quite able to see what she said she saw . . . I have no problems whatsoever with the adult Crown witness or the child witnesses. Each was truthful and the demeanour of each sincere and very serious. There was no reason to suspect their motives . . .
The accused raised the obvious through counsel, that is the issue of mens rea or intention. Was the accused only tickling her and/or playing? While one might have reasonable doubt on this issue at the completion of the evidence of the adult witness, the evidence of the strikingly similar facts by the two child witnesses, W. and T. helped to clarify."
In our opinion, the comment just quoted from the Youth Court judge, does not derogate from his initial decision that the Crown had established a prima facie case after Mrs. J.'s evidence was concluded.
If the Youth Court judge felt that it was necessary for the Crown to establish mens rea or a specific intent on the part of the young offender, that he was not "just tickling" the victim, but in fact had the specific intent to sexually assault the victim, then, in our opinion, the Youth Court judge was in error.
In Regina v. Chase (1987), 37 C.C.C. (3d) 97 (S.C.C.), McIntyre, J., on behalf of the Court, stated at p. 104:
"Implicit in this view of sexual assault is the notion that the offence is one requiring a general intent . . . To put upon the Crown the burden of proving a specific intent would be a long way toward defeating the obvious purpose of the enactment. However there are strong reasons in social policy which would support this view. To import an added element of specific intent in such offences, would be to hamper unreasonably the enforcement process . . . For these reasons, I would say that the offence will be one of general rather than specific intent."
Counsel for the appellant submits that, what Mrs. J. observed from initially her second floor room, and thereafter her kitchen window on the first floor, did not constitute a sexual assault. Without specific evidence as to the areas of the body touched, the court, he submits, could only speculate that the activity engaged in was sexual in nature.
Mrs. J. clearly observed, however, that while the victim was lying on her back with her hands behind her head, the appellant lifted up her pants, put his hand down inside, "right up to his wrist", and that "his hand was under her clothes, between her clothes and her flesh, down inside", and started moving his hand.
In our opinion this constitutes a sexual assault. The actions described constitute a real affront to both sexual integrity and sexual dignity.
McIntyre, J. in Regina v. Chase, supra, stated at p. 102:
"To begin with, I agree, as I have indicated, that the test for the recognition of sexual assault does not depend solely on contact with specific areas of the human anatomy.
. . .
Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: 'Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?' (Taylor, supra, per Laycraft C.J.A., at p. 162 C.C.C., p. 269 C.R.). The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant:"
The Youth Court judge concluded that the evidence of Mrs. J. was sufficient to establish a prima facie case.
This Court may allow the appeal where it is of the opinion that the verdict "should be set aside on the ground that it is unreasonable or cannot be supported by the evidence" (s. 686(1)(a)(i) of the Code).
In accordance with the mandate set forth in Yebes v. The Queen (1988), 36 C.C.C. (3d) 417 and R. v. W.(R.), [1992] 2 S.C.R. 122, we have reexamined the evidence, reweighed and considered the effect of the evidence, and have concluded that the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. In our opinion, the Youth Court judge made no reversible error in his assessment of the testimony of Mrs. J. in reaching his conclusion as to the guilt of the appellant.
The comments of Twaddle, J. of the Manitoba Court of Appeal in R. v. B.(J.N.) (1989), 48 C.C.C. (3d) 71 on behalf of the majority are apposite:
"If there is evidence sufficient to inculpate the accused, we may take into account his failure to give evidence denying his involvement or explaining it."
Having concluded that the evidence of Mrs. J. alone was sufficient to establish the guilt of the young offender beyond a reasonable doubt, we refrain from expressing any opinion on the admissibility of the "similar fact" evidence.
Accordingly, the appeal against conviction is dismissed.
J.A.
Concurred in:
Matthews, J.A.
Roscoe, J.A.