Crown: P.K. Tait, Assistant Crown Attorney, Newmarket
Defence: Craig Penney, Toronto Criminal Defence, Newmarket
¶ 1 THE COURT: The Defendant, N.K., is charged with sexually assaulting [the complainant] on July 3, 1998, at the Municipality of York. At the outset of this trial the Crown proceeded with three other charges against N.K. Two of these have been dismissed as a result of a non-suit application by the Defence at the conclusion of the Crown's case. The third of these was dismissed when Mr. Tait for the Crown quite fairly conceded that there was not sufficient evidence to establish the time period as set out in that particular charge.
¶ 2 An overview of the facts concerning the remaining sexual assault charge reveals the following. On July 3rd, 1998, nine-year-old [the complainant] attended at a [place of worship] in Maple, Ontario with his father and brother. The three were seated on chairs in a large tent on the property of the [place of worship] listening to religious speeches. At one point the Defendant, who was an acquaintance of [the complainant]'s family, came over to say hello. He sat down to [the complainant]'s left.
¶ 3  [The complainant] testified that N.K. put his hand on the upper left leg area. This hand was placed on the top of long pants that [the complainant] was wearing. This hand remained on the leg for a short period of time. This touching occurred with [the complainant]'s brother and father sitting near him. [The complainant] apparently did not like this touching of his leg, and testified that he moved to another chair away from N.K. This matter was reported to the police later the same day and a videotape statement was taken from [the complainant] The Defendant, N.K., agrees that he momentarily put his right hand on [the complainant]'s leg, but it was done for the innocent purpose of getting [the complainant]'s attention.
¶ 4 The issue in this case is whether the Crown has satisfied me beyond a reasonable doubt of all the constituent elements of the offence of sexual assault. I am aware, of course, that the onus is upon the Crown to prove all the elements of this offence to the standard of beyond a reasonable doubt. There are issues of credibility that arise in this Case. In such situations I must be guided by the dicta of the Supreme Court of Canada as set out in R. v. W.D. (1991) 63 C.C.C. (3d), 397.
¶ 5 [The complainant] is an engaging and charming young man who impressed the Court with his desire to tell the truth to the Court while he was a witness. However, there were internal inconsistencies in his sworn evidence as well as significant inconsistencies between his evidence given in Court and his statement given to the police on the day of the event. As such, I must caution myself concerning the accuracy and reliability of some aspects of [the complainant]'s evidence.
¶ 6 The Defendant, N.K., testified. I was impressed with N.K. as a witness. I find that the Defendant was attempting to be truthful and accurate with this court when he testified. I find that I cannot reject the evidence of the Defendant to the effect that he put his right hand on [the complainant]'s leg for a short time as an automatic action to get the young boy's attention.
¶ 7 I find from the evidence presented before me that the touching of [the complainant]'s leg was an incidental type of touching for the purpose of getting his attention. This touching would be akin to a person touching the arm of an acquaintance upon meeting him. The contact in this case would not constitute a criminal assault and certainly does not constitute a sexual assault. I am left with very serious doubts concerning this case and as such, I must find N.K. not guilty of the charge.