Accused appealed his conviction for sexual exploitation. Accused was charged with one count of sexual assault and one of sexual exploitation in relation to his wife’s 17 year old niece who lived with them. Complainant testified accused forced her to try on dress, removing her bra and shirt, pushing her onto bed, removing her jeans and attempting to pull off her underwear but was unsuccessful because she held them in place. Accused testified complainant took off bathing suit top she was wearing and asked him to help her remove her jeans and denied removing her bra or pushing her onto bed. Accused was high school teacher where complainant attended. Complainant told allegations to schoolmate, who in turn told his mother, who in turn contacted police. Accused attended police detachment, gave videotaped statement and was arrested. Accused claimed that in his partial statements to police, he was not confessing crime but confessing guilt to making complainant feel badly. Appeal allowed; new trial ordered. If accused was confessing guilt to criminal conduct, it was essential to determine to which incident or incidents he was confessing. While accused said he understood charges, in same answer he said he did not and elements for sexual assault and sexual exploitation were not explained to him. Details of what complainant alleged in all three incidents were not provided to accused although some aspects of incidents were discussed. Throughout interview there were significant discussions about what was appropriate and inappropriate as opposed to criminal conduct. Trial judge erred in her assessment and use of accused’s police statement. Court not persuaded trial judge was using terms “confession” and “admissions of guilt” solely in relation to inappropriate but non-criminal conduct. It was readily apparent that statement was treated as confession to criminal conduct in assessing his evidence and comparing it to trial evidence. Trial judge found statement to be inculpatory, accurate, reliable and true disclosure of guilt, and powerful confession of touching complainant without her consent. Those comments did not imply findings were inferences. Assuming court was wrong and they were inferences, trial judge provided no reasons for why that damaging conclusion was drawn. It was not readily apparent what accused was confessing to since officer never confronted him with all of allegations. Curative provision did not apply as trial judge found accused had confessed and used his admission of guilt to reject accused’s trial evidence.
R. v. C. (D.) (Feb. 21, 2014, Ont. S.C.J., Durno J., File No. Milton 110/12) Decision at 100 W.C.B. (2d) 215 was reversed. 112 W.C.B. (2d) 99.