Evidence of arousal leads to sex assault conviction for northern Ont. man

A North Bay man has been found guilty of sexual assault in connection with an incident almost a decade ago involving a young victim. (File)

A North Bay man has been found guilty of sexual assault in connection with an incident almost a decade ago involving a young victim.

At the time, the accused was a friend of the victim, who was 10 years old at the time. In a decision released March 19, he was found guilty of sexual assault because of evidence he was aroused when he hugged and kissed the victim while they were alone.

The case dates to August 2016, when the victim and her sister were living one week with their mother and one week with her father. Her father moved into a townhouse and the accused lived next door.

“Sometimes he would watch television with the entire family, although he would be left alone with the girls at times while the father went downstairs to smoke marijuana,” the Superior Court of Justice decision.

“Although the witnesses differ on how it came to be, at some point on the day in question, they found themselves alone at the accused's residence after spending some time together outside.”

They were playing a driving video game that involved the use of a steering wheel and pedals. When the victim played, she sat on the accused lap and steered, while he operated the pedals.

In her testimony, the victim said at some point she felt the accused’s erection while sitting on his lap. Feeling uncomfortable, she got up quickly and sat on a nearby bed.

“The complainant's evidence is that the accused came to the bed, pushed her down onto it, and held her down by placing his hands on her wrists,” the court decision said.

Tried to kiss her

“She said that he tried to kiss her for three to five minutes, or maybe longer, but that she kept turning her head away so that the accused only managed to kiss her on the cheek.”

When he tried to touch her private parts, she testified that she curled up and the accused began “cuddling” with her until her sister knocked on the front door and the accused got up to answer it.

The accused, who has a significant learning disability, agreed that the victim sat on his lap while playing the driving video game, but said they gave up on the game and cuddled “like a brother and sister would.”

At some point, she said she wanted to go home, he testified, and so he walked her to the door.

“The accused denied having an erection at any point during the time he spent with the complainant in his bedroom,” the court decision said.

But the investigation revealed inconsistencies in the accused story. For example, he first told police that there was a pillow on his lap and that the victim sat on the pillow.

“At trial, the accused said nothing about a pillow,” the decision said.

That’s significant, the judge ruled, because when he was arrested, the accused wasn’t told what he was being accused of. But when asked by police why he thought he had been arrested, he made reference to the Aug. 16, 2016, incident.

Conciousness of guilt

“In my view, this is evidence of consciousness of guilt that belies the accused’s innocent explanation about the nature of his contact with the complainant on the day of the events in question,” the judge ruled.

By mentioning the presence of a pillow so early in the process, the judge said the accused likely was likely trying to “protect himself from the allegation that he had an erection while the complainant was on his lap, an allegation which had not yet been conveyed to him.”

He also at first denied ever trying to kiss the victim, then later said he “probably did.”

The victim’s testimony also had inconsistencies. At trial, she said the accused held her down by her wrists, but initially, she said he had only “lightly” pushed her down on the bed. But the judge said it’s not unusual for people who were victims at a young age to struggle to recall certain details.

“The presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying,” the judge wrote.

To come to his ruling, the judge said he compared the testimony of both the accused and the victim and compared it with the evidence.

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That process led him to conclude that the victim and the accused were playing video games when the accused became aroused. Trying to kiss and cuddle with her after he became aroused, “occurring as it did after he kissed her and while he was aroused, constituted a sexual assault,” the judge ruled.

Read the full court decision here.