Supreme Court
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Decision information:
Abstract: Transcript of the Reasons for Judgment
Decision Content
R. v. Button, 2015 NWTSC 25 S-1-CR-2014-000011
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- and -
DAVID MICHAEL BUTTON
Transcript of the Reasons for Judgment delivered by The
Honourable Justice K. Shaner, in Yellowknife, in the
Northwest Territories, on March 5, 2015.
APPEARANCES:
Ms. J. Scott: Counsel on behalf of the Crown
Mr. R. Gregory: Counsel on behalf of the Accused
-------------------------------------
Charges under s. 156 C.C. x 2
Ban on Publication of Complainant/Witness
pursuant to Section 486.4 of the Criminal Code
1 THE COURT: David Button is charged with
2 two counts of indecent assault said to have
3 occurred in Inuvik, in the Northwest Territories,
4 in 1977 and 1978 respectively.
5 The complainant is the same person in each
6 case. He was approximately 12 years old when the
7 first assault is alleged to have occurred and 13
8 years old when the second is alleged to have
9 happened.
10 Because there is a publication ban in this
11 case, I am going to be referring to the
12 complainant as "the complainant" and not by his
13 name or by initials.
14 The complainant was the only witness for the
15 Crown.
16 The accused, Mr. Button, gave evidence on
17 his own behalf, and his wife Myrna Button gave
18 evidence as well. Mr. Button denies that he
19 committed the indecent assaults.
20 The fact that evidence was tendered by and
21 on behalf of Mr. Button engages the reasoning in
22 R. v. W.(D.), [1991] 1 SCR 742, which I will
23 discuss in more detail later in these reasons.
24 The complainant testified that when he moved
25 to Inuvik with his father, his half-sister, his
26 step-sister and his step-mother, it was 1976.
27 His father had taken a job as an industrial arts
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1 teacher at the school there. The complainant
2 surmised there were about four to 500 students
3 attending the school, inclusive of students from
4 communities outside of Inuvik.
5 The complainant said he knew Mr. Button.
6 His first memory of Mr. Button was of his house,
7 which consisted of two geodesic domes. The
8 complainant recalled his father and Mr. Button
9 were friends. Mr. Button was the school's
10 guidance counsellor and so the two men worked
11 together there. Mr. Button did point out that,
12 as the guidance counsellor, he was part of the
13 administration, whereas the complainant's father
14 was, as a teacher, part of the staff; however,
15 they did have occasion to interact.
16 The complainant was familiar with Mr.
17 Button. He would bump into him at school,
18 although he said he did not ever deal directly
19 with Mr. Button in the latter's capacity as a
20 guidance counsellor. Although Mr. Button
21 indicated during his testimony that he did not
22 know the complainant and did not recall him from
23 school, he did indicate that he did hall
24 monitoring. It is reasonable to conclude that
25 the complainant would have seen him at school and
26 known in what capacity he worked there. It is
27 also reasonable to conclude that Mr. Button may
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1 not have known, in particular, the complainant
2 from the school setting given the number of
3 students there.
4 Mr. Button and the complainant's father also
5 worked together outside of school doing
6 construction on Mr. Button's house. Mr. Button
7 stated in his testimony that the complainant's
8 father was actually employed to assist with the
9 construction on the house from time to time and
10 paid by a corporation in which Mr. Button and his
11 wife were equal shareholders.
12 The complainant testified that he recalled
13 his father taking him with him to Mr. Button's
14 home, which, as I said, consisted of two geodesic
15 domes and was located on Boot Lake Road. The
16 complainant said this was one of his first
17 memories about Mr. Button.
18 David Button and Myrna Button both
19 characterized their relationship with the
20 complainant's parents as one that was, at best,
21 acquaintances. Mr. Button said they had
22 different interests. The complainant's father
23 and step-mother were raising a young family. The
24 daughters were in various activities, including
25 figure skating and gymnastics. Mr. and Mrs.
26 Button, by contrast, did not have children and
27 they had different interests.
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1 Mr. Button said he had very little memory of
2 the complainant. He described meeting the
3 complainant in the complainant's family home on
4 one occasion and he was surprised to learn of
5 him. He said the complainant came downstairs
6 while he was there and he was introduced to him.
7 Myrna Button gave similar testimony. Mr. Button
8 recalled no interaction with the complainant,
9 even at the school, and he was emphatic in
10 stating the complainant had never been in his
11 house.
12 Mr. Button insisted he was not close to the
13 complainant's father and that he knew very little
14 about the complainant's family.
15 He confirmed, however, that he and the
16 complainant's father were both employees at the
17 school, Mr. Button as a guidance counsellor and
18 the complainant's father as an industrial arts
19 teacher, and, as noted, the complainant's father
20 worked for Mr. Button doing construction on the
21 latter's house when the need and opportunity
22 arose. He was a paid employee of Mr. and Mrs.
23 Button's company.
24 Mr. Button pointed out that the
25 complainant's father did work on the outside of
26 the house and did not have occasion to be on the
27 inside of it through the three or four years of
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1 their working relationship respecting the house.
2 I note, however, that in his testimony Mr. Button
3 said the complainant's father helped out with
4 floors, which I infer would have taken him into
5 the interior of the house.
6 While the complainant's father was helping
7 with the house construction, there were times
8 when Mr. Button, and sometimes his wife, would go
9 to the complainant's row house for coffee. This
10 was something to which Mr. Button testified.
11 Myrna Button recalled going there as well and
12 said that this is where she was introduced to the
13 complainant. She also recalled that she had
14 looked after the complainant's half-sister and
15 step-sister once or twice.
16 Mr. Button said the purpose of these visits
17 to the complainant's home was to design and plan
18 the construction of his own house with the
19 complainant's father; in other words, there was
20 predominantly a business purpose associated with
21 these meetings.
22 Although the nature of their business would
23 change in the future, in 1976, the corporation,
24 which was owned by Mr. and Mrs. Button, was
25 almost entirely Mrs. Button's responsibility, and
26 at that time she was obtaining and performing
27 contract janitorial services for various
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1 organizations and clients in Inuvik. One such
2 contract was for cleaning services for the
3 Northern Canada Power Corporation or NCPC
4 offices. According to Myrna Button, the contract
5 called for the public areas and the hallway to be
6 cleaned. It was to be performed once a week
7 between the close of business on Friday and the
8 opening of business on Monday morning. This is
9 an important fact to which I will return later.
10 Another contract of which Myrna Button was
11 unsure, but of which David Button appeared to be
12 confident, was a cleaning contract held for the
13 Town Hall in Inuvik. The complainant testified
14 that it was at the NCPC offices that the events
15 comprising the first count on the Indictment took
16 place. That was during the first part of the
17 winter in 1977. According to the complainant, he
18 would have been 12 at the time and he wanted to
19 make money. His father arranged for him to go
20 and work for Myrna Button performing janitorial
21 services. This was his first job and he
22 remembered his wage was $2.55 per hour.
23 Both Mr. Button and his wife were adamant in
24 their testimony that they would not have hired a
25 12- or 13-year-old boy to work for them,
26 particularly on the NCPC contract. Mr. Button
27 and Mrs. Button confirmed that all employees were
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1 required to have a social insurance number, and
2 Mr. Button was given to understand that someone
3 under the age of 15 could not obtain one at least
4 at that time. Regardless of whether that was the
5 correct matter in law, that was his belief. As
6 well, Myrna Button testified that the youngest
7 person she would have hired to work for her was a
8 15 year old who she herself supervised. Both of
9 them denied ever having hired the complainant.
10 The complainant said he went to the NCPC
11 offices with Mr. Button and two people who were
12 also cleaning, a man and a woman. The area being
13 cleaned was the office facility. He said the
14 building was just one storey. There was a long
15 hallway along which there were offices on either
16 side. There was also a reception area.
17 This description of the building differs
18 somewhat from that given by Myrna and David
19 Button, both of whom recalled the building was
20 two storeys, with a flight of stairs leading up
21 to a landing and reception area, behind which was
22 a hallway about 80 feet long. It was the
23 reception area and public area that they were
24 hired to clean.
25 The complainant said he was in an office
26 which he agreed was about ten feet by ten feet in
27 size. He described it as having a desk, desk
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1 chairs, typical office furniture, a dustbin, and
2 a large black ashtray in the middle of the desk.
3 He was kneeling over, emptying the dustbin, when
4 Mr. Button entered the office. He said Mr.
5 Button's belt was undone, his pants open, his
6 penis out and erect. Mr. Button, he said, came
7 over to him, and the complainant was at the time
8 in a kneeling position. He said Mr. Button
9 started to slap the complainant about the face
10 and head with his penis. He said to the
11 complainant, and I am paraphrasing, that he, that
12 is Mr. Button, was going to show the complainant
13 "how to be a man".
14 The complainant said this lasted about 35
15 seconds. He was able to get away from Mr. Button
16 and out of the office into the hallway. Mr.
17 Button followed. The other two workers were at
18 the end of the hallway cleaning offices.
19 Shortly afterwards, Mr. Button, the
20 complainant and the two workers left together in
21 a vehicle, which was being driven by one of the
22 other workers. The complainant said that this
23 was their means of transportation to and from the
24 NCPC offices. He did not discuss the incident
25 with Mr. Button, nor did he ask the two workers
26 for help.
27 After he arrived home the complainant told
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1 his father what happened. According to him, his
2 father suggested that Mr. Button was just
3 "playing around", that he was just "carrying on".
4 When asked to explain what he thought that
5 expression "carrying on" meant, the complainant
6 said it was like two kids playing in a sand box.
7 The incident was not reported to the police
8 at the time. From the evidence of both the
9 complainant and Mr. Button, the relationship
10 between Mr. Button and the complainant's father
11 continued.
12 Some time later the complainant took another
13 job working for Myrna Button. This time he was
14 cleaning the Town Hall with a schoolmate. He was
15 asked why he would want to work for Myrna Button
16 given his experience at the NCPC offices just
17 described. His response was that he was not
18 concerned because Mr. Button was not involved
19 with that cleaning contract and he just wanted to
20 make money. In any event, the complainant quit
21 working for the Buttons shortly afterwards and
22 obtained a job working for the Hudson's Bay
23 Company for more money. He did not work for
24 either of the Buttons ever again.
25 The complainant failed Grade 8 and left
26 school in Grade 9. He said he did not respect or
27 trust teachers.
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1 As a younger man, the complainant was
2 convicted of possession of marihuana on three
3 occasions, and on one occasion he had magic
4 mushrooms in his possession as well. He was also
5 convicted of break and enter. He pled guilty in
6 all cases and eventually he received pardons for
7 all of these offences. He has not had any
8 difficulties with the law since that time and
9 appears to have spent his life successfully
10 employed, eventually becoming a business owner.
11 He is now 50 years old.
12 In the summer of 1978, the complainant's
13 father bought a car. It was a Bobcat. It was
14 blue with wood panelling. There was a console in
15 between the two front seats. The complainant
16 said that he loved the car. It was shipped by
17 barge to Inuvik in August or September of that
18 year. The complainant said that he was 13 at the
19 time so he could not legally drive the car,
20 however he had taken it out without his father or
21 step-mother's permission once before.
22 The complainant testified that he was not
23 aware that his father taught driver's education
24 or that the car was to be used for that purpose.
25 Mr. Button testified, however, that he had
26 secured a contract to deliver driver's education
27 training in Inuvik and that the instructor would
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1 be the complainant's father. He had learned
2 through the complainant's father that the latter
3 had experience teaching driver's education. The
4 car belonging to the complainant's father, the
5 Bobcat, was to be used in carrying out the
6 driver's education contract.
7 Mr. Button said that he and the
8 complainant's father purchased a device which
9 allowed them to have a brake on the passenger
10 side of the car to facilitate driving
11 instruction. Mr. Button described it as a three
12 foot steel loop attached to a brake pedal, which
13 could be installed and removed readily. Mr.
14 Button said the complainant's father purchased or
15 chose the device and Mr. Button paid for it.
16 The complainant said that in the spring of
17 1978 his father had become ill with cancer. His
18 father had to take treatment, which required him
19 to be away from Inuvik for extended periods of
20 time as the treatment was offered in Edmonton,
21 and the complainant was given to understand that
22 his father's health was compromised and at risk
23 because of the nature of the treatment. For this
24 reason, his father had to stay in Edmonton for an
25 extended period of time following each round of
26 treatment.
27 The complainant recalled that David and
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1 Myrna Button would come and help out his
2 step-mother while his father was away getting
3 treatment. It was during one of these treatment
4 periods that the complainant says the events
5 comprising the second count on the Indictment
6 took place.
7 The complainant testified that Mr. Button
8 came to the complainant's home and offered to
9 give him some driving lessons in the car. The
10 complainant took him up on this opportunity.
11 When asked why he would get into a car with
12 someone who had previously assaulted him, he said
13 he just really wanted to drive the car, and he
14 took a chance that there would not be another
15 indecent assault.
16 There was a service road off of the main
17 road, still close to the complainant's house,
18 which was the planned route. The complainant was
19 driving and Mr. Button was in the passenger seat.
20 There was a console between them. The
21 complainant said that as he was driving, Mr.
22 Button reached over, put his right hand into the
23 complainant's pants, tearing off the button. He
24 grabbed and pulled the complainant's genitals.
25 He also reached over behind the complainant with
26 his other hand and locked the car door. There
27 was a struggle. Mr. Button, according to the
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1 complainant, tried to force his head close to Mr.
2 Button's genitals. Mr. Button put his head close
3 to the complainant's crotch. Mr. Button told the
4 complainant he was going to show him "how to be a
5 man," or words to that effect.
6 The complainant said that throughout this,
7 he managed to get the car into park. He also
8 managed subsequently to unlock and open the car
9 door. He alit from the car and he ran home.
10 This event occurred about two houses down from
11 where he lived on the service road. His
12 step-mother was at home and he told her what
13 happened. She told him that Mr. Button was just
14 "playing around", and no other action was taken.
15 The complainant went back to get the car.
16 Mr. Button was standing outside on the passenger
17 side. As the complainant went to get into the
18 car, Mr. Button went to get in as well. The
19 complainant says he returned home on foot,
20 leaving the car where it was, and that Mr. Button
21 returned the car to the residence.
22 The complainant said the incident lasted
23 about a minute and a half. He said his testicles
24 and penis were sore for about ten days
25 afterwards.
26 The complainant said Mr. Button remained
27 friends with his parents for a while longer and
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1 he saw Mr. Button around town after that time,
2 until the complainant left Inuvik in the mid
3 1980s.
4 The complainant made a statement to the
5 police in the summer of 2010 regarding these two
6 incidents. He was contacted by the police and
7 asked to do so.
8 As I noted, Mr. Button denies both of these
9 incidents.
10 Mr. Button denied that he and his wife
11 helped out the complainant's family while the
12 complainant's father was undergoing cancer
13 treatments. In fact, Mr. Button said that while
14 he was aware the complainant's father had to take
15 extended periods of leave for medical reasons, he
16 was not advised directly by the complainant's
17 father that it was for cancer treatment. The
18 complainant's father did not discuss with him the
19 reasons he had to go on leave other than to tell
20 Mr. Button on one occasion, and it is unclear
21 exactly when, that he had injured at one point a
22 lymph node and that he had cancer that was in
23 remission.
24 As I stated earlier, because Mr. Button gave
25 evidence on his own behalf, as well as calling
26 evidence from Myrna Button, the analysis that is
27 set out in W.(D.) is engaged. That analysis
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1 assists the Court in ensuring that the burden of
2 proof, which is squarely on the shoulders of the
3 Crown in this case, is not shifted to Mr. Button
4 simply by reason of his giving evidence or
5 calling evidence on his behalf. In other words,
6 he does not have to prove he is innocent. It is
7 always for the Crown to prove guilt beyond a
8 reasonable doubt, and only in doing that will the
9 Crown displace the presumption of innocence, to
10 which every accused person is entitled.
11 The W.(D.) framework is, briefly, that if I
12 believe Mr. Button's assertion that he did not
13 commit the alleged act, I must acquit him.
14 If I do not believe him, I must nevertheless
15 consider whether the evidence given in his own
16 defence which I do believe leaves me with a
17 reasonable doubt. If I answer that
18 affirmatively, Mr. Button must, of course, be
19 acquitted.
20 Finally, even if I find that the evidence
21 given on Mr. Button's behalf does not raise a
22 reasonable doubt, I must nevertheless be
23 satisfied beyond a reasonable doubt of each of
24 the elements of the offence of indecent assault
25 before I can find that Mr. Button is guilty. If
26 I am not, Mr. Button is entitled to an acquittal.
27 The W.(D.) framework must be applied to each
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1 of the charges on this Indictment.
2 With respect to the first charge on the
3 Indictment, alleged to have occurred at the NCPC
4 offices, I cannot say that I believe Mr. Button
5 when he says that he did not commit the offence.
6 I find overall that Mr. Button was not a credible
7 witness. There were things he said about his
8 relationship with the complainant's father and
9 the complainant's family that simply do not make
10 sense in the overall context of the evidence. I
11 agree very much with the Crown that he downplayed
12 the nature of his relationship with the
13 complainant's father and step-mother, as well as
14 his knowledge of the family and what was going on
15 in that family, including the complainant's
16 father's health at various times.
17 He worked with the complainant's father at
18 the school. They were full-time employees there.
19 Not only that, they worked together, just the two
20 of them, doing construction on Mr. Button's
21 house, in addition to any time that they spent
22 together at their main workplace, and of course
23 they were involved in the driver's education
24 contract together. In other words, they spent a
25 lot of time together. While that does not
26 necessarily mean that they knew every intimate
27 detail of each other's lives, it seems highly
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1 unlikely that Mr. Button would have been as
2 unknowing or as uncaring as he makes out that he
3 was.
4 Mr. Button said that in connection with the
5 house construction, the two men met over coffee
6 at the complainant's house to discuss design.
7 Indeed, Mr. Button insisted that the
8 complainant's father would not have had occasion
9 to be in the interior of Mr. Button's home so,
10 presumably, the complainant's home was the venue
11 for those meetings. Given that the complainant's
12 father and Mr. Button worked on the home for
13 somewhere in the neighbourhood of three to four
14 years, it is reasonable to infer that they met
15 for coffee to discuss design and plan
16 construction on many occasions. There was bound
17 to be small talk and discussions about all kinds
18 of things, including family. Mr. Button was
19 bound to be able to make observations. Yet, Mr.
20 Button claims to know almost nothing about the
21 complainant and his family, even suggesting he
22 basically had no idea who the complainant was.
23 The suggestion by Mr. Button that he had
24 such a distant relationship with the
25 complainant's family becomes even more incredible
26 when one considers the matter of the arrangement
27 struck between Mr. Button and the complainant's
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1 father to carry out the driver's education
2 contract. It does not make sense that a person
3 like Mr. Button, who appears to be very exact,
4 who appears to be very careful, and who appears
5 to be someone who insists on doing things by the
6 book, would hire an instructor about whom he knew
7 almost nothing, based on a representation that
8 that person had experience previously as a
9 driving instructor. This was a contract that Mr.
10 Button secured. Presumably, Mr. Button wanted to
11 succeed with that contract, and it is hard to
12 imagine that Mr. Button would risk his business
13 reputation by leaving the performance of a key
14 component of the contract, that is, carrying out
15 the actual instruction, to someone he did not
16 really know and about whose health and well-being
17 he did not really care.
18 Finally, I note that Myrna Button stated in
19 evidence that she looked after the step-sister
20 and the half-sister of the complainant once or
21 twice during the period when the complainant's
22 father was working on the Buttons' house. This
23 necessarily implies that there was more of a
24 relationship between the Buttons and the
25 complainant's family than Mr. Button lets on.
26 Despite my concerns about Mr. Button's
27 overall credibility however, there are some parts
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1 about the evidence concerning the NCPC cleaning
2 contract and the incident that is alleged to
3 occur there that create a reasonable doubt in my
4 mind about the allegations contained in the first
5 count on the Indictment.
6 Myrna Button testified about the terms of
7 the NCPC contract and how she fulfilled that
8 contract. I took into account that Myrna Button
9 is the accused person's wife, and that can
10 properly have an effect on the assessment of
11 credibility. Nevertheless, I found Myrna
12 Button's evidence on this point to be very
13 consistent and straightforward. She was careful,
14 generally, in her answers, but not rehearsed, and
15 her evidence withstood cross-examination. She
16 had a fairly good memory of things, particularly
17 given how long ago the things she was asked to
18 remember transpired.
19 One of the things that she could remember
20 very clearly was the NCPC contract and, in
21 particular, the terms of that contract. She said
22 that the contract called for the common areas and
23 public areas, including the hallway, to be
24 cleaned once a week. The contract did not call
25 for the offices themselves to be cleaned, and
26 both she and Mr. Button said that the offices
27 were not cleaned. In fact, Mr. Button said that
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1 the offices were locked and that they did not
2 have access to the offices.
3 I have considered whether it is possible
4 that the incident occurred in the reception area
5 by the desk rather than in an office. However,
6 given the complainant's testimony about the
7 office being enclosed, that it was a ten by ten
8 space, I am not convinced beyond a reasonable
9 doubt that this is a possibility.
10 The other thing that Myrna Button said was
11 that there were no other workers on that job, it
12 was just she and Mr. Button who performed the
13 contract and they went together almost every
14 time. The complainant was very definite in his
15 evidence, including the incident which occurred
16 inside an office and that there were two other
17 people there to help clean that night.
18 Another issue that causes me to have a
19 reasonable doubt is that if indeed there were
20 other workers there, then their presence has an
21 impact on the likelihood that Mr. Button would
22 engage in such a brazen act. What was described
23 was very brazen. He had his belt undone, his
24 penis erect, and he is said to have attacked the
25 complainant.
26 It was said that the other two workers were
27 at the end of a hallway approximately 80 feet
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1 long. That is a long way, but in an enclosed
2 space it is not outside the realm of possibility
3 that that would be within earshot and eyesight of
4 where Mr. Button and the complainant would have
5 been.
6 What this does is it leaves me unsure. In
7 other words, I am not convinced beyond a
8 reasonable doubt that Mr. Button indecently
9 assaulted the complainant at the NCPC building
10 that night. It might have happened; it could
11 have happened; it is possible. But might, could,
12 and possible are not enough in our system to
13 convict an accused person. Accordingly, I find
14 that Mr. Button is not guilty on Count 1 of the
15 Indictment.
16 I now turn to Count 2. I am not going to
17 repeat the reasons I have just given that I find
18 Mr. Button to be an incredible witness overall,
19 or why I find it difficult to accept that he knew
20 very little about the complainant and his family.
21 I will say, however, that I have applied those
22 same conclusions on his overall credibility to my
23 assessment on this count.
24 One of the things that Mr. Button said with
25 respect to this count is that he would have had
26 no reason to be at the complainant's residence
27 when this second event allegedly occurred in
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1 1978. In my view, however, he would have had a
2 very good reason to be there, and that reason was
3 the car. Mr. Button testified he did not have a
4 car. He said that on several occasions. He also
5 testified that the government owned most of the
6 cars in Inuvik and that there were very few
7 privately-owned vehicles. I infer from that that
8 there were probably even fewer vehicles which
9 would meet the standard required to deliver
10 driver's education in any sort of endorsed
11 program.
12 Who had the car? The complainant's father
13 had the car. The complainant's family had
14 possession of the car, and it was the
15 complainant's father's car which was intended for
16 use in the driver's education course. Without
17 that car, and without access to that car, there
18 would be no way to perform that contract.
19 In the circumstances, it would be entirely
20 unreasonable to accept Mr. Button's testimony
21 that he would have had no reason to be at the
22 complainant's home that day in 1978.
23 Accordingly, I reject his denial.
24 I turn my mind now to whether Mr. Button's
25 testimony on this point raises a reasonable
26 doubt.
27 Mr. Button said the complainant's father was
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1 ex-military and ran a strict, rule-adherent
2 household. He said the complainant's step-mother
3 would not have allowed him, Mr. Button, to take
4 the complainant out driving under any
5 circumstances.
6 I cannot accept that as a foregone
7 conclusion. Mr. Button was a guidance
8 counsellor. He held a fairly respected position
9 in the school. He was part of the administration
10 at the school where the complainant's father
11 worked. He was also the complainant's father's
12 boss, so to speak, having employed the
13 complainant's father to help with the
14 construction on the Button home and arranged for
15 him to give the driving instruction under Mr.
16 Button's contract. It seems entirely plausible
17 that the complainant's step-mother would trust
18 him with the car keys and trust him with the car.
19 It was also suggested that it would be
20 unreasonable to conclude the complainant would
21 not have gotten into a car with someone who had
22 indecently assaulted him once before. Again, I
23 cannot accept that as a foregone conclusion. To
24 assume that a victim will forever avoid a
25 perpetrator is to endorse one of an infinite
26 number of reactions in the face of sexual
27 violence and abuse to the exclusion of other
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1 reactions.
2 Law reports are littered with cases of
3 victims returning time and again, only to be
4 revictimized, for all kinds of reasons and
5 without any explanation whatsoever in some cases.
6 The complainant was a 13 year old boy.
7 There was this car that he loved — a car that was
8 sitting idle in the driveway; a car which he had
9 taken out once before in secret; a car which he
10 really, really wanted to drive. And here was Mr.
11 Button — if not a family friend, someone with
12 whom the complainant's father spent a lot of time
13 and with whom the complainant's father had a
14 relationship — and he was offering to take the
15 complainant out for a drive. He was offering to
16 let the complainant drive the car. In my view,
17 that is an incredible inducement for a
18 13-year-old boy, and it is, again, entirely
19 reasonable that an adolescent boy would have
20 gotten into a car with Mr. Button, hoping that
21 history would not repeat itself.
22 I do not have any reasonable doubt that
23 arises out of the testimony which was given by
24 Mr. Button with respect to the second count.
25 Although Mr. Button's testimony does not
26 leave me with reasonable doubt, as I said, the
27 Crown is still required to prove its case beyond
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1 a reasonable doubt, and so I must nevertheless
2 consider whether the complainant's testimony
3 satisfies me beyond a reasonable doubt that this
4 event in the car did, in fact, take place. I am
5 so satisfied.
6 The complainant described the events clearly
7 and cogently. His testimony withstood
8 cross-examination. I considered the manner in
9 which Mr. Button is alleged to have attacked the
10 complainant. I do not think that it would be
11 difficult for him to have manoeuvred himself in
12 the vehicle the way that the complainant
13 described it. I do not find the complainant's
14 statement to the police, wherein he omitted to
15 tell them that when he returned to the car Mr.
16 Button was standing there, diminishes his
17 credibility in any way. The statement was made
18 in 2010, more than 30 years after these events
19 allegedly occurred. The complainant himself said
20 his memory is better now that he has had a chance
21 to think about things than it was when he first
22 gave the statement some five years ago. In my
23 view, it was, at most, an oversight and not a
24 deliberate omission or an attempt to mislead the
25 police.
26 The complainant had some difficulty during
27 his testimony explaining whether Mr. Button used
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1 his right or left hand to grab the complainant's
2 testicles and penis in the car. He did, however,
3 explain that he was confused when he was
4 answering his question by the manner in which
5 defence counsel was gesturing while asking the
6 question and this accounted for his confusion. I
7 accept his explanation. I do note, however, that
8 this is not to suggest that defence counsel was
9 deliberately trying to confuse the witness.
10 The past convictions, as I said, are old.
11 They have been pardoned and these do not cause me
12 to question the complainant's credibility,
13 particularly in light of the complainant's life
14 and the way he has led his life since that time.
15 The evidence of the complainant respecting
16 the second count on the Indictment satisfies me
17 that he was indecently assaulted by David Button.
18 Accordingly, I find Mr. Button guilty on this
19 count.
20 I direct the clerk to enter an acquittal on
21 Count 1 and to enter a conviction on Count 2.
22 ..............................
23 Certified to be a true and
accurate transcript pursuant
24 to Rule 723 and 724 of the
Supreme Court Rules of Court.
25
26
______________________________
27 Annette Wright
Court Reporter
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