WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
MCJ
Before: Justice D.A. Harris
Heard on: December 1, 2, 8, 9, 16, 18, 2014, January 30, 2015, February 6, 2015
Reasons for Judgment released on: April 1, 2015
Counsel:
- Laurie Jago — counsel for the Crown
- Seth P. Weinstein, Naomi M. Lutes — counsel for the defendant MCJ
HARRIS J.:
INTRODUCTION
1MCJ has been charged with six criminal offences.
2He has been charged with sexual assault and with sexual interference between December 5, 1987 and December 5, 1992 with respect to LJ.
3He has been charged with sexual assault and with sexual interference between June 15 and September 10, 2007 with respect to KJ.
4He has been charged with two counts of sexual assault and with respect to LH. The first of these is alleged to have occurred between March 1 and August 31, 1998. The second is alleged to have occurred on July 23, 2005.
5This case is somewhat unusual for two reasons.
6Firstly, Crown counsel did not apply to have the evidence with respect to any one of these complainants apply with respect to the others. Both counsel have agreed that I must therefore assess each set of allegations in isolation and cannot rely upon one to corroborate the other. The allegations respecting each complainant must be approached separately, as if they comprised three discrete trials.
7The three sets of complaints were tried together because they all occurred within the same extended family relationship. LJ and LH are sisters. MCJ is their uncle. LH is the mother of KJ. LJ is the aunt of KJ. LJ and LH witnessed certain events surrounding the acts complained of by the others and all three complainants were involved in the events leading to the public disclosure of all of these events. Their evidence is relevant then in establishing the context of all of the events. In addition, the evidence of all three of the complainants can be used to assess the credibility of each of them.
8I repeat, however, that in the end, the allegations respecting each complainant must be approached separately, and I must approach this case as if it comprised three discrete trials.
9The second unusual circumstance is that this is a retrial following a successful appeal from an earlier decision. With certain limited exceptions, I have not been apprised of any of the content of the first trial or of the appeal. In addition I have not read the reasons of the Ontario Court of Appeal.
10The exceptions I refer to are fourfold.
11Firstly, the three complainants were all cross-examined to varying degrees with respect to inconsistencies between their evidence before me and their evidence at the original trial. In those instances, I heard those portions of the previous evidence which were read to the witness in court before me.
12Secondly, LJ made allegations at both trials of performing oral sex on MCJ. Counsel told me at the outset that MCJ had been acquitted at the first trial with respect to that charge. Counsel agreed that the evidence before me with respect to this incident was admissible as narrative evidence, and that the only use that I might make of this evidence was to assess the credibility and reliability of LJ.
13Thirdly, I was provided with a transcript of the evidence of Constable Nadine Clarke Boateng given during the previous trial.
14Finally counsel agreed that the Court of Appeal had stated, as a matter of law, that a complaint against a family member does not make that complaint more credible and that I am bound by that.
15I now propose to review the law as it applies to all of the allegations. I will then address the three sets of allegations separately.
16Before I do so however, I wish to comment on the courteous and cooperative behaviour of counsel throughout this trial. It has gone a long way to simplify what could have been a much more difficult matter. The written submissions were also extremely helpful. I am therefore taking this opportunity to express my gratitude.
THE APPLICABLE LAW
17LJ, KJ, LH, HS, SJ and Detective Pritpal Nagra testified as Crown witnesses. On consent, I was also provided with a transcript of the evidence of Constable Nadine Clarke Boateng given during the previous trial. No witnesses testified for the defence.
18The principles in R. v. W (D) do not apply.
19Having said that I am mindful of the fact that if, after considering all of the evidence that I accept in this case, I have a reasonable doubt as to MCJ's guilt, I must acquit him.
20MCJ, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However I must remember that "the reasonable doubt standard … falls much closer to absolute certainty than to proof on a balance of probabilities".
21This is a tough standard and it is so tough for very good reason. As Cory J said in R. v Lifchus: "The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt …… is one of the principal safeguards which seeks to ensure that no innocent person is convicted".
22Crown counsel argued that this case is about the reliability of the evidence of the three complainants. I agree.
23In that regard I note the differences between credibility and reliability. Credibility relates to a witness's sincerity, whether she is speaking the truth as she believes it to be. Reliability relates to the actual accuracy of her testimony. In determining this, I must consider her ability to accurately observe, recall and recount the events in issue. A credible witness may give unreliable evidence. Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt.
24Finlayson J.A. stated in R. v. Stewart that:
I am not satisfied, however, that a positive finding of credibility on the part of the complainant is sufficient to support a conviction in a case of this nature where there is significant evidence which contradicts the complainant's allegations. We all know from our personal experiences as trial lawyers and judges that honest witnesses, whether they are adults or children, may convince themselves that inaccurate versions of a given event are correct and they can be very persuasive. The issue, however, is not the sincerity of the witness but the reliability of the witness's testimony. Demeanour alone should not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on the record.
25The distinction between credibility and reliability is very pertinent in this case where I am satisfied of the sincerity of the three complainants, that all of them believed what they said. My concern is with the reliability of their beliefs. I will deal with this at greater length later in these reasons.
26At this point I will say that my decision with respect to the credibility of the witnesses is based, in part, on their demeanour while testifying. I am well aware that a finding of credibility should never be based on demeanour alone, especially where there are significant inconsistencies and conflicting evidence on the record. The credibility and reliability of a witness must be "tested in the light of all the other evidence presented".
27I also stress that while I am satisfied that I may rely on the demeanour of the complainants as a factor in assessing their credibility, I consider it to be of very little, if any, assistance in assessing the reliability of their evidence.
28Counsel for MCJ has stressed the numerous inconsistencies in the evidence of each of the complainants.
29In assessing the credibility of a witness, it is appropriate to examine the inconsistencies between what the witness said in the witness box and what she said on previous occasions. It is also appropriate to examine inconsistencies with what other witnesses said. Inconsistencies on minor matters or matters of detail are normal and do not generally affect the credibility of a witness, particularly a young witness. But one or more inconsistencies involving material matters can justify concluding that the witness is neither credible nor reliable. In determining this, it is necessary to look to the totality of the inconsistencies.
30Crown counsel has argued that none of the complainants had a motive to fabricate the allegations against MCJ.
31The absence of any motive to fabricate an allegation is a proper matter for consideration in the course of the fact finding process. It is, however, only one of the factors to be considered by me. I cannot simply conclude that because there is no apparent reason for a witness to lie, the witness must be telling the truth. Rather, I must assess the credibility and reliability of the complainant's evidence in the light of all of the other evidence. Nor can I automatically equate a lack of evidence of motive to fabricate to the proved absence of motive to fabricate.
32While dealing with this area of the law, I again note that counsel agreed that the Court of Appeal decision sending this matter back for a new trial stated, as a matter of law, that a complaint against a family member does not make that complaint more credible.
33Counsel disagreed in their submissions as to which witnesses should be categorized as "child witnesses" and as to how I should treat their evidence.
34In that regard, I note the following basic principles.
35Every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding, and ability to communicate.
36No inflexible rules mandate when a witness' evidence should be evaluated according to "adult" or "child" standards. An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the Supreme Court of Canada in its approach to children's evidence.
37There are some guiding principles.
38Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time when the events about which she is testifying occurred.
39In R. v. A.M., the Ontario Court of Appeal stated that the trial judge erred in assessing the complainant's evidence as if she were a "child" witness. She was 19 years old when she testified at trial about abuse that extended over a decade, until about her 17th birthday. Her testimony was that of an adult regarding events that first occurred when she was a child and continued well into her teenage years. The trial judge was obliged to assess her credibility according to the criteria applicable to adult witnesses, not the somewhat lessened standard of scrutiny associated with child witnesses.
40It is improper to view the evidence of children as being inherently unreliable and therefore to be treated with special caution. The statutory requirement that a child's evidence be corroborated was repealed long ago. The repeal of these provisions does not prevent a judge from treating a child's evidence with caution where such caution is merited. But it does revoke the assumption that children's evidence is less reliable than the evidence of adults.
41Further, it may be wrong to apply adult tests for credibility to the evidence of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection.
42It is necessary to take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as on adults. A flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.
43This is not to say that courts should not carefully assess the credibility of child witnesses or that the standard of proof should be lowered when dealing with children. The credibility of every witness must be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children. Still, "Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child."
44With respect to the failure of the various complainants to disclose these events earlier, I simply note that the law of recent complaint has indeed been abrogated for some time. I have no preconceived notions as to how an innocent victim of a sexual assault might react.
45I am also not prepared to find evidence to be incredible solely on the basis that the behaviour described in that evidence was other than one might expect a "reasonable person" to act. I have seen too many reasonable people make unreasonable decisions to reach such a conclusion.
46I will now address the three sets of allegations against MCJ.
THE ALLEGATIONS BY LJ
47MCJ has been charged with sexual assault and with sexual interference between December 5, 1987 and December 5, 1992 with respect to LJ.
48The following is a brief summary of her evidence regarding these alleged offences.
49She was the older sister of LH, aunt of KJ and niece of MCJ.
50The extended family was a close one. She and her sister were very close. Her niece KJ looked upon her as a second mother.
51MCJ was her favourite uncle. He was closer to her in age and he was fun. She trusted him and she enjoyed spending time with him.
52Her parents separated when she was seven years old and she saw her father each Wednesday and every other weekend, usually at her grandparents' home. MCJ lived there during this time. When LJ was between 14 and 16, she spent a lot of her time at her aunt SJ's home in Grimsby because she was close with her cousins. She did not spend as much time with her father during this time. She could not be positive but she felt that between 14 and 16 there was not much that happened between her and MCJ. There was less opportunity.
53There were two incidents that stood out in her memory – the guitar incident and the incident involving oral sex in his car. She also recalled kissing, touching and tickling on other occasions.
54The first thing LJ recalled was going up to MCJ's room with him because he was going to show her how to play guitar. She was 11 years old. He asked her if she was interested in boys. She did not recall her response. He told her never to let a boy put two fingers inside her, only one. LJ said "I let him do it". He put two fingers inside her vagina, took them out then put one finger inside her. She was lying on the bed and MCJ was sitting beside her. When asked what she was thinking or feeling, LJ's response was that she did not remember but she did not stop him. When counsel for MCJ suggested that MCJ had not inserted his fingers into her, she responded, "I know that it happened".
55One other time, he had her perform oral sex on him. MCJ stopped his car at the side of a dark street. MCJ undid his pants and had her lean over him and put his penis in her mouth. She could hear him say "keep squeezing". It was the first time that she had ever done that and she did not know what she was doing. She had no memory of MCJ ejaculating but if he had it would be something that she would remember. When asked if she wanted it to happen, LJ said that she never said "no"; she did not stop it and did not know why she let those things happen. She did not remember her age when it did happen. When asked if she agreed that at the first trial she said that she was closer to 16 than 11, she agreed that she said it was "closer to the last, I think", but that she was not sure. Oral sex was talked about again but LJ could not recall if it happened again.
56There were times when MCJ would kiss, tickle or touch her. Tickling and play fighting happened with other cousins, not just her. Sometimes MCJ tickled and touched her where he should not. He touched her breasts over and under her clothes and he touched her vagina. He also asked her to touch his penis with her hand. These events occurred in her grandparents' home and in MCJ's car. They did not happen often. MCJ told her what he wanted her to do or moved her hand to where he wanted it.
57When MCJ kissed her, it was on the lips. It was a "making out" kiss, a kind of wet sloppy kiss with his tongue a little bit in her mouth. She did not really know how to kiss when this happened.
58When asked how soon after the guitar incident had the kissing started, LJ said that the guitar incident led into everything else that happened.
59They did not kiss every time she saw MCJ. They did not kiss if there were people around. Kissing took place in the basement and bedroom of her grandparents' home and in MCJ's car. MCJ told her not to say anything, that if anyone found out, they would both be in trouble. LJ knew that what they had been doing was not right and she did not want anyone to know. MCJ was her uncle and she would be embarrassed because she should not have let it happen and she did not stop it. When asked if she wanted it to happen, she said that she did not know.
60LJ's 16th birthday was celebrated at the home she shared with LH and their mother in Burlington. MCJ came into her room, shut the door and went to kiss her. LH walked in and LJ and MCJ backed away. MCJ talked to LH about something else. LJ was not sure if they actually touched lips or not.
61This was the last time that anything physical happened between LJ and MCJ. When she was 18, she was at her grandparents' home and MCJ came into her room and tried to kiss her but she said "no". She kept her distance from MCJ after that. They saw each other but never anywhere where they were alone.
62LJ never had any fights or disagreements with MCJ. When her grandfather died in 2004, MCJ sat down beside her at the funeral and said he was sorry for everything that had happened between them and that he hoped that things were okay. She told him they were. She knew that he was referring to what he had done to her although he never explicitly said what he was apologizing for.
63When asked by counsel for MCJ if it was possible that inappropriate touching did not occur before she was 14, LJ's response was "there was inappropriate touching before 14".
64LJ never wanted to disclose any of this information to anyone. She only went to the police and told her story after her niece KJ had alleged that MCJ had sexually abused KJ.
65That disclosure occurred in May of 2009. KJ spoke to LJ on the phone and then LJ went over in person, in an attempt to convince KJ to go to school. KJ and LJ were arguing back and forth, and during this argument, KJ told LJ about the allegations involving MCJ. KJ said that MCJ "pulled his stuff out, his penis, and had her hold on and told her to just keep squeezing."
66KJ also told her that something had happened before they got onto the sea-doo such that LJ inferred that MCJ had been hitting on KJ.
67At LJ's insistence, LJ and KJ then told KJ's mother LH what had happened.
68LJ and LH both told KJ that something had happened to them too but did not provide her with any details.
Assessment of LJ's Credibility and Reliability
69In assessing LJ's credibility and reliability, I note the following.
70She had no apparent motive to fabricate her allegations against MCJ other than her anger resulting from KJ disclosing that he had allegedly sexually assaulted her.
71After watching, and listening to, LJ give her evidence I have no doubt that she believed every word that she said. I have never seen a more reluctant witness. She did not want to be in court. She did not want to discuss whatever had happened between her and MCJ. She clearly blamed herself, as much or more than him, for what had happened. She also appeared to blame herself for what she believed that he had done to KJ.
72Counsel for MCJ argued that there was possible collusion between LJ and KJ and KH. I am not satisfied that there was any conscious collusion on the part of these three witnesses.
73In the end, I found LJ to be a very credible witness, who believed everything that she said in court.
74I did not however find her evidence to be reliable to the requisite degree.
75In assessing the reliability of that evidence, I note that, at both trials, she was an adult testifying about events that occurred when she was a child. Accordingly she should be assessed according to the criteria applicable to adult witnesses. However, "the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time" of the alleged offences.
76I note further however that the timing of the events in this case is not a peripheral matter.
77Throughout the years of the alleged offences, the legal age of consent (with respect to a sexual assault charge) was 14 years of age and the offence of sexual interference required that the complainant be less than 14 years of age.
78Counsel for MCJ argued that the Crown failed to prove an absence of consent with respect to the kissing and touching that LJ alleged. With the exception of the digital penetration allegation, the evidence established (or at least it did not disprove) that the acts of kissing and touching were consensual.
79Accordingly, LJ's age at the time that the various events occurred is a central issue. If events occurred before LJ turned 14, she was not legally capable of consenting to what happened. If they occurred after she turned 14, the Crown must prove an absence of consent beyond a reasonable doubt.
80Crown counsel argued that LJ spent a lot more time at her Aunt SJ's home after she was 14 and that there was less opportunity for anything to happen between 14 and 16 and that, in fact, not much did happen then.
81Counsel for MCJ argued that LJ visited her grandparents less frequently during the period when she was 14 to 16 so as to spend time with her cousins, with whom she was very close in age. However, LJ agreed that she still did visit her grandparents on some weekends after the age of 14.
82There may have been fewer opportunities after she turned 14 but there were still some opportunities then. That is borne out by LJ's concession that the oral sex incident likely occurred closer to her 16th birthday than to her 11th one. She also agreed that some other touching and kissing incidents had occurred after she had turned 14.
83Crown counsel argued that LJ was 11 years old when the first incident happened. It is a memory she will never forget. The other unforgettable memory is of her performing oral sex on MCJ in his car. She did not know what she was doing. She also said that she did not know how to kiss when MCJ kissed her. Her evidence that she did not know what she was doing permits the court to draw the inference that she was younger rather than older.
84I am however not prepared to assume that she knew how to kiss or how to perform oral sex by the time she was 14, so as to allow me to infer that any kissing and oral sex could only have occurred before she reached that age.
85In addition, LH testified that LJ spent a lot of time with MCJ right up until the time she was 16 or so. LH described weekends at her grandparents' house where the kids would stay together and the adults would stay together. The exception was that LJ spent her time with MCJ. She seemed happy to do so, and LH never noticed that anything was wrong. Further, contrary to LJ's evidence, LH testified that she did not notice any change in LJ's relationship with MCJ prior to the kiss on LJ's 16th birthday.
86The evidence about the 16th birthday kiss provides a timeframe in which to assess and situate the other incidents of touching and kissing. The fact that LH witnessed the surreptitious kiss was clearly the impetus for LJ to put an end to things with MCJ. Had there been no sexual activity between the ages of 14 and 16, there would have been nothing to put an end to after this kiss on her 16th birthday.
87LJ was neither an accurate nor reliable historian of events. She was not certain what happened with MCJ aside from the guitar and the oral sex incidents, and where anything did happen, the details were not clear.
88LJ agreed that she did not have an actual memory of what she was doing between the ages of 14 and 16 and that she had reconstructed how old she must have been.
89She could not describe any one touching or kissing incident which stood out in her mind. She could not say whether it was days, months, or years later when the kissing or the touching started relative to when she was 11 years old.
90LJ's evidence suffered from far more than inconsistences as to "peripheral" matters. Not only was LJ unable to recall specific places, times, sequencing, and frequency, she was unable to say with certainty what happened aside from the car and guitar incidents.
91Counsel for MCJ also argued that the reliability of LJ's account of the kissing and touching was also undermined by inconsistencies with respect to important details. For example, despite the clear memory that she had been touched over and under the clothes, this detail was only provided in the midst of the first trial. Prior to that, she had told the police that she could not remember if he had touched her under her clothes.
92LJ never disclosed the fact that MCJ placed his fingers in her vagina during her statement to the police. This allegation was only brought to the attention of police during KJ's testimony at the first trial, on the same day that LH provided her further disclosures to the police, and the same day that KJ asked for a break in her testimony to provide a further police statement because she was concerned that she was not going to be believed.
93When specifically asked during her first interview whether anything physical had happened, LJ told Detective Nagra that she could not remember; that she only remembered MCJ's words, not his actions. What stood out in her mind about this incident were the words that MCJ allegedly used.
94LJ attempted to explain this inconsistency by saying that she may not have remembered this detail when she was being interviewed by the police in 2009 and that if that were the case, she only remembered it at some later time. She could not say what exactly might have prompted the memory, but explained that it was her turning things over in her head and thinking about what had happened.
95She did not want to tell the officer about it. She did not know how to say it, she had not thought about it for so long and she did not want to think about it.
96LJ said:
I do not know why I did not tell him…I had tried so long to believe that I did not let these things happen. I do not remember every detail. I do not remember every time, but I know that it was inappropriate. I know that together we mutually did things to each other that we should not have done. I had a very hard time. I had a very hard time getting myself to think about these things…to say them out loud.
97She said she definitely remembered what he did to her; that she did not remember if she purposely left it out or if she really had not been honest with herself, but she knew that it happened.
98Crown counsel argued that while LJ had not told police in her initial video statement that MCJ had inserted his fingers in her vagina, she did provide a written clarification about that point after reviewing the transcript of her video and before she testified at the first trial.
99LJ's recollection continued to evolve at this trial in that she disclosed for the first time that MCJ had allegedly told her to "squeeze it" when he would have her touch his penis or perform oral sex.
100There are however inconsistencies between the evidence of LJ and that given by KJ with respect to this.
101According to LJ, when KJ made her disclosure in 2009, she alleged that MCJ had told her to "squeeze it" and to "squeeze harder". LJ said that, at that time, she could vividly recall MCJ saying these same or similar words to her. However, she never disclosed this to the police or the Crown and she did not testify to this at the time of the last trial. Moreover, when LJ reviewed her police statement and her trial transcript in preparing to testify at this trial, she did not bring this to the attention of the police or the Crown. She did not provide any explanation for this omission.
102KJ testified that she had not told anyone that MCJ had told her to "squeeze it" and that it may have been therapy which triggered the memory. When she disclosed the alleged sexual assault to LH and LJ in May of 2009, she provided only the basic allegations, that MCJ had rubbed up against KJ on the sea-doo, that she had touched his penis, and that this happened at the family cottage. She did not provide LJ with any other details.
103LJ testified that KJ told her that MCJ "pulled his stuff out, his penis, and had her hold on and told her to just keep squeezing." LJ also testified that KJ had told her that something had happened before they got onto the sea-doo such that LJ inferred that MCJ had been "hitting on" KJ.
104The incident beside the cottage was first disclosed by KJ to police on November 30, 2010, during the first trial. In that police statement, KJ was clear that she had never told anyone about this detail before.
105A less significant inconsistency occurred where LJ testified before me that she was not sure if MCJ succeeded in kissing her on her 16th birthday or not. At the first trial, she said that she was sure that he did. When pressed about this, she said that she should not have said that it definitely happened because she was not sure. There had been a lot of questions. She had tried her best to give accurate answers but sometimes she just did not.
106There are also a number of inconsistencies between the evidence of LJ and that of LH with respect to matters more peripheral to these allegations.
107LH testified that neither LJ nor KJ ever told her any of the details of KJ's allegations. LJ merely told her that MCJ had done something to KJ. However, LJ testified that LH was told that MCJ pulled his stuff out, that he made KJ touch his penis, made her squeeze it, told her to squeeze it harder, and was getting close to her before going out on the sea-doo. LH, however, maintained that she had never heard these things.
108LH also said that she did not know when KJ had been at the cottage. LJ however testified that LH was made aware that KJ and cousin S had called S's father to come pick them up.
109LJ testified that LH told LJ and SJ that MCJ would stand at the end of her bed and watch her sleep, and that once, he exposed himself at the top of the stairs. LH testified that MCJ never exposed himself at the top of the stairs, that he never stood at the end of her bed watching her sleep, and that she would never have said that to anyone.
110LJ and LH had different recollections of where LH was living prior to moving in with MCJ. LJ testified that LH had been staying with her, and although she was looking for her own apartment, there was no urgency to her moving out. LH testified that she had been living with her maternal grandparents prior to moving. She said she had not lived with LJ prior to moving in with MCJ.
111LH maintained that, at some point after moving out, LH's mother as well as her aunts and uncles went to MCJ's home to collect LH's belongings. LH also testified that on another occasion she, LJ, and their mother returned to pack and clean. LH was certain that LJ was there and testified that she could visualize this memory in her mind. In yet another contradiction, however, LJ testified that she was not part of this moving out process.
112LJ testified that following cousin J's wedding, LH and LJ had spent as much as two hours in the hot tub with MCJ that night drinking, talking, laughing, and having a good time. LH denied that.
113In summary then, there were a number of inconsistencies between the evidence of LJ and that of KJ such that the evidence of at least one of them had to be incorrect with respect to each of those matters. In each instance, I am unable to say, with any degree of certainty, whose evidence that might be.
114There were also a number of inconsistencies between the evidence of LJ and that of LH such that the evidence of at least one of them had to be incorrect with respect to each of those matters. Again, in each instance, I am unable to say, with any degree of certainty, whose evidence that might be.
115There are also a number of inconsistencies between what LJ said before me and what she said on prior occasions.
116The most significant inconsistencies related to the two incidents which LJ said stood out in her memory.
117She did tell Detective Nagra about the guitar incident during her initial interview. At that time she said that MCJ told her to never let a boy put two fingers inside her, only one. She did not however say that MCJ then inserted his fingers into her vagina. In fact, when specifically asked during her first interview whether anything physical had happened, LJ told Detective Nagra that she could not remember, that she only remembered his words, not his actions. She did not tell anyone that MCJ had inserted his fingers into her vagina until just before she testified at the first trial.
118The allegation that MCJ inserted his fingers into her vagina then when she was 11 years old was not a minor or peripheral detail. It was about the nature of the assault itself and its omission from her statement to Detective Nagra was "the kind of inconsistency that should engender caution as to the reliability of the witness, even a child witness".
119The other incident that stood out in LJ's memory was that involving oral sex in MCJ's car.
120Before me, she said that she had a clear memory of MCJ telling her to squeeze his penis at that time. These words were significant because KJ had told her that MCJ had spoken those same or similar words to KJ while assaulting her.
121However KJ testified that she had not told LJ about MCJ saying that.
122In addition, LJ did not inform Detective Nagra of this rather important connection between the assault on her and the assault on KJ. In fact, she also failed to mention it when she testified at the first trial.
123This too is an extremely serious inconsistency. It too leads me to doubt the reliability of LJ's evidence.
124With respect to MCJ's subsequent apology to LJ at the wedding, I am not satisfied that this constitutes an admission of criminal guilt. It is equally consistent with his expressing his regret for engaging in inappropriate, yet consensual, behaviour with her when the two of them were much younger.
125In light of all of this, I am not satisfied that the Crown has proven beyond a reasonable doubt that MCJ inserted his fingers into LJ's vagina during the guitar incident or that he did anything else on that occasion that would constitute either a sexual assault or sexual interference.
126I remind myself at this point that MCJ was previously found not guilty of any offence arising out of the oral sex incident.
127With respect to the allegations of kissing or touching on other occasions, I must stress once again that it is not sufficient for me to be satisfied that some of these events probably occurred before LJ's 14th birthday. The Crown must prove that beyond a reasonable doubt. I am not satisfied that the Crown has done so. The Crown has therefore failed to prove an essential element of the sexual interference charge. With respect to the sexual assault charge, the Crown must prove beyond a reasonable doubt that any kissing or touching that occurred after LJ's 14th birthday occurred without her consent. Again, I am not satisfied that the Crown has done so.
128That being the case, neither of the charges relating to LJ has been proven to the requisite degree and they will be dismissed.
THE ALLEGATIONS BY KJ
129MCJ has been charged with sexual assault and with sexual interference between June 15 and September 10, 2007 with respect to KJ.
130The following is a brief summary of her evidence regarding these alleged offences.
131She was the daughter of LH and niece of LJ. LH and LJ were nieces of MCJ. She was very close to her aunt LJ. While growing up she only saw MCJ once in a while and did not have a relationship with him. She only saw him once after the incident at a family event.
132KJ's disclosure in 2009 is what led to LJ and LH telling police what happened to them.
133Two or three years before that disclosure, KJ was at cousin S and cousin B's house when their great-grandmother came over and decided to take them all with her to the family cottage. KJ thought that just MCJ and his wife were at the cottage when KJ and the others arrived there.
134They got things out of the car, watched television, and went swimming in the lake nearby. MCJ said "why do not we go sea-dooing". KJ and Cousin S agreed. The girls were wearing bikinis. MCJ was wearing swimming trunks.
135At some point before going out onto the water, KJ and cousin S decided to sit on the sea-doo as it sat on the trailer at the side of the cottage. MCJ sat behind them. At some point, cousin S got off and returned to the cottage. MCJ then began to rub his body and groin area against KJ, the same rubbing motion that he later made while out on the water.
136Following this, KJ, cousin S and MCJ drove in a truck down to the water to launch the sea-doo. Nothing happened in the truck but KJ felt uncomfortable about what had happened at the side of the cottage.
137The three of them got on the sea-doo. Cousin S was at the front. KJ sat in the middle and MCJ sat behind her. KJ was leaning forward with her arms around Cousin S's waist, and MCJ was similarly leaning forward over the two girls in order to reach the handle bars and operate the machine.
138Because of these positions, he was leaning into her and touching her body with his. It was wavy and they were moving quickly, bouncing over the waves. His body rubbed against hers and they bounced into each other during this bouncing up and down on the waves. She was certain however that this rubbing was for a sexual purpose.
139She testified that MCJ moved closer to her during the course of the sea-doo ride. He had an erection during this time.
140Towards the end of the 35-45 minute sea-doo ride, MCJ removed her left hand from around cousin S's waist and placed it on his erect penis. This was "skin to skin' contact, although she could not say whether his penis was inside or outside of his shorts. MCJ repeatedly said "squeeze it" to her while she was touching his penis. Cousin S did not look back nor say anything. KJ said nothing, and did not ask for MCJ to let go of her hand. The entire incident lasted for a matter of seconds.
141At that point, she was scared and did not know what to do so she said "Can we go back". MCJ said "okay" and they went back.
142When they got back to shore, MCJ left and KJ and cousin S stayed outside swimming. KJ told cousin S what happened, but cousin S did not believe her. Cousin S said that "Well I know that he wouldn't do anything like that". That was the end of their conversation.
143Later they ate and then cousin S's dad came to get them and they left.
144A few days later, KJ told her friend HS the basics of what happened, including that MCJ had rubbed against her and that she touched his penis. This disclosure occurred in the bedroom of KJ's house. It was the location of this disclosure (in the bedroom of her house) that, according to KJ, allowed her to pinpoint her age at the time of the alleged offence.
145At some point later, KJ made a further disclosure to HS's mother, in HS's presence, providing the same type of details, and identifying MCJ as the perpetrator. KJ also asked the mother not to tell anyone, and she agreed to keep KJ's secret.
146KJ also testified that she told her cousin C (LJ's daughter), and her then-boyfriend AA what had happened through HS.
Assessment of KJ's Credibility and Reliability
147In assessing KJ's credibility and reliability, I note the following.
148She too had no apparent motive to fabricate her initial allegations against MCJ.
149She did show a definite animus towards him later that could potentially colour her subsequent recovered memories.
150At the first trial, she was still a child testifying about events that occurred when she was an even younger child. In this trial, she was at most on the cusp of adulthood and I am satisfied that in assessing her credibility I should apply the somewhat lessened standard of scrutiny associated with child witnesses.
151For that reason, although I am not as certain as I was in the case of LJ, I find that KJ may believe every word that she said. To that extent, I would describe her as a credible witness. I did not however find her evidence to be reliable to anywhere near the requisite degree.
152In reaching that conclusion, I note the many, many inconsistencies in her evidence. I will address these in chronological order, and not in order of relative importance. My assessment of reliability was based on the cumulative effect of all of these in any event.
153KJ told Detective Nagra in her video interview and repeated before me that MCJ and his wife were at the cottage when she arrived. At the first trial she said that she was not sure if Mrs. MCJ was at the cottage.
154She did not refer to the incident alleged to have occurred on the sea-doo while beside the cottage during her statement to the police or during her examination-in-chief during the first trial. Then, when she was being cross-examined, she said that she wanted to speak with officer again. She then told Detective Nagra about this incident.
155KJ explained that she provided this further information during the trial because she felt like she was being called a liar. This incident did not seem as important when she first spoke with police. During the trial she felt like she should be telling the whole story of what happened in order to explain why she was sure that the rubbing on the sea-doo was not accidental contact while bouncing on a sea-doo.
156Although LJ testified that KJ had told her that something happened beside the cottage, such that LJ had the impression that MCJ had been "hitting on" KJ, KJ disagreed and said that the first time that she told anyone about this incident was at the first trial.
157KJ testified that following the incident beside the cottage, she felt uncomfortable while driving to the lake. During the first trial, she testified that she did not feel uncomfortable when she was in the truck.
158KJ testified before me that MCJ had put his hands on her waist and pulled her towards him while on the sea-doo beside the cottage. She did not mention this detail in her police statement or at the first trial. Her explanation for omitting this was that she did not think it was an important detail.
159KJ also testified before me that MCJ had moved closer to her during the course of the sea-doo ride on the water. At the first trial, she testified that there was no change in MCJ's position during the trip, and that he had never moved closer to her. KJ explained that she had "given in" to defence counsel's questions and that she was scared of defence counsel and felt "attacked". No evidence was put before me however to bear out this explanation. In fact, Crown counsel conceded as an admitted fact that while there were a number of occasions when the first judge had spoken to counsel regarding repetitive, overly detailed questions, there was no suggestion that counsel was intimidating or scaring the witness KJ.
160KJ testified before me during cross-examination that MCJ had an erection while rubbing against her on the sea-doo.
161She had never said this before, not in her statement to the police, or during the first trial or during examination-in-chief before me. In fact, throughout her statements to police and during the first trial, she said that she did not remember if MCJ had an erection or not.
162She provided several explanations for why she had left out this rather important detail.
163She was 13 years old at the time and did not want to talk about an erection.
164Further, while she knew "back then" what an erection was, she had never had any experience with one. In addition to talking about it in therapy since then, she had also had actual experience with an erection and knew now what it would feel like.
165She had not understood why a man gets an erection.
166All of these explanations were inconsistent with her original statement to police and with her evidence at the first trial.
167She provided a description of an erection to Detective Nagra in her own words, explaining that an erection occurred when a man was excited, and a penis gets hard and "goes up". When specifically asked by Detective Nagra whether she had felt anything like that on her body on the sea-doo, she said "I do not remember."
168She also testified at the first trial that she knew what an erection was, and again described what it was in her own words and agreed that since she did not remember whether there was anything like an erection, she could not assert that it had happened.
169On both occasions, she said that she did not remember, as opposed to saying that she did not know.
170When asked if her testimony at the time of the first trial was true, KJ stated that her answers were true "at the time". However, she had this memory of the erection at the time of the first trial. It was always in the back of her mind, but she had spent a lot of time trying to forget it and so it was not something she had been thinking about when she provided her statement to police. It was only after having discussions with her therapist that these memories resurfaced.
171None of these explanations answered why she had first mentioned it during cross-examination and not during examination–in-chief.
172KJ also stated for the first time in cross-examination before me that she specifically recalled touching MCJ's exposed penis, testifying that there was "skin to skin' contact, although she could not say whether his penis was inside or outside of his shorts, and could not say whether her hand was down his shorts. At the first trial, she testified that she could not remember whether she felt skin or shorts. She agreed that this was a truthful answer but explained that she recovered the detail in therapy.
173She also testified for the first time that she recalled MCJ having an erection as her hand was on his exposed penis. She initially explained the inconsistency by saying that having an erection was a little detail that she did not think was important when speaking to the police. Then she said that this memory was recovered through therapy.
174KJ also testified before me that MCJ had said, "squeeze it" to her while she was touching his penis. She acknowledged that she had previously said on numerous occasions that she did not remember MCJ saying anything and that once at the first trial she said that he had not said anything. She explained that she was not focusing on little details and in her mind, this was a little detail.
175She also said that she had recovered this memory in therapy.
176KJ testified that a few days after the incident, she told her friend HS the basics of what happened, including that MCJ had rubbed against her and that she touched his penis. This disclosure occurred in the bedroom of KJ's house. It was the location of this disclosure (in the bedroom of her house) that, according to KJ, allowed her to pinpoint her age at the time of the alleged offence.
177HS testified that the conversation had occurred in the basement of KJ's house, not the bedroom. Further, KJ had only told HS that she had been on the sea-doo with her uncle and her cousin and that she had wanted to get off the sea-doo but that her uncle would not let her. KJ had testified, however, that she would not have told anyone that MCJ had not refused to let her off the sea-doo, as that did not occur.
178KJ further testified that at some point later, she made a further disclosure to HS's mother, in HS's presence, providing the same type of details, and identifying MCJ as the perpetrator was MCJ. KJ also asked the mother not to tell anyone, and she agreed to keep KJ's secret.
179HS said that she relayed the conversation she herself had with KJ to her mother but there was no suggestion of sexual impropriety or abuse in this conversation. Further, KJ was not present for this.
180KJ also testified that she told her cousin C (LJ's daughter), and her then-boyfriend AA, what had happened, through HS.
181HS testified that she had not had not spoken with AA on KJ's behalf.
182I have previously discussed the inconsistencies between KJ's evidence and that of LJ with respect to KJ's initial disclosure of the allegation that MCJ had sexually abused KJ and I will not repeat those discrepancies here.
183There was also a further inconsistency between the evidence of LH and that of KJ that is related to this. LH said that she did not know when KJ had been at the cottage. She testified that after KJ's disclosure, she spent time trying to think about when it could have occurred. According to KJ, at some point after she returned from the cottage, LH picked her up and, as was normal, asked her how the weekend was. KJ then told her that she had been to the cottage.
184In summary then, as I observed earlier in my assessment of LJ's evidence, there were a number of inconsistencies between the evidence of LJ and that of KJ such that the evidence of at least one of them had to be incorrect with respect to each of those matters. In each instance, I am still unable to say, with any degree of certainty, whose evidence that might be.
185There were also a number of inconsistencies between the evidence of KJ and that of LH such that the evidence of at least one of them had to be incorrect with respect to each of those matters. In each instance again, I am unable to say, with any degree of certainty, whose evidence that might be.
186There were also inconsistencies between the evidence of KJ and that of HS such that the evidence of at least one of them had to be incorrect with respect to each of those matters. In each instance again, I am unable to say, with any degree of certainty, whose evidence that might be.
187There are also many inconsistencies between what LJ said before me and what she said on prior occasions. These inconsistencies relate to material issues at the core of her allegations. The fact that MCJ rubbed himself against her on dry land shortly before doing so while on the water is a key part of the allegation against him. So are the allegations that he had an erect penis and that he placed her hand on that erect penis "skin to skin" while telling her to squeeze it.
188KJ provided various explanations for these inconsistencies. At times, these various explanations were themselves inconsistent, one with another. The explanations were also unsatisfactory.
189Few, if any of these inconsistencies can be dismissed as relating to peripheral details.
190They all are about the nature of the sexual assault itself and their omission from her previous statements and testimony is again "the kind of inconsistency that should engender caution as to the reliability of the witness, even a child witness".
191I am also concerned by the fact that the allegations have continuously evolved, becoming ever more incriminating.
192KJ attributed many of the inconsistencies and the development of her evidence to therapy. I do not accept that as being a satisfactory explanation. I know nothing about the therapy or how it might have triggered the new memories. Throughout her evidence, KJ was unable to explain this.
193Nor was any expert evidence led in that regard, although expert evidence is not necessary to explain the issue of recovered memories or to attest to the reliability of such memories.
194Expert evidence was called in R. v. Norman, supra where Finlayson J.A. stated:
In the last analysis, the expert evidence at trial tells us that some of the recollections revealed during therapy are authentic while others are not. It is up to our courts of law to determine, on all of the evidence before us, whether the recollections are reliable or not. We cannot profess to be able to establish the absolute truth, but we can point to time-honoured means of determining whether a series of allegations has been proved to a standard that is acceptable to society: that is to say, beyond a reasonable doubt.
195As I said, I did not have the benefit of any expert evidence to tell me that some recollections revealed during therapy are authentic while others are not but I believe that common sense tells me the very same thing. It is therefore still up to me to determine by "time-honoured means" if the allegations have been proven beyond a reasonable doubt.
196When I engage in that process I note that while it is possible that KJ's memories were triggered by therapy, it is also plausible that they were triggered by a subconscious desire to add to her story to make it seem more credible.
197Neither explanation makes the memories any more reliable.
198I also must consider the plausibility of KJ's final version of what happened. The three of them were on a sea-doo which was bouncing across the waves on Lake Erie. KJ had her arms wrapped around the waist of cousin S who was sitting in front of her. KJ testified that she had to hold on and not let go in order to avoid falling off of the sea-doo. I assume that, in those circumstances, she was holding on tightly. MCJ was sitting behind both of them. He was leaning forward and was initially holding on to the controls with both hands in order to steer the sea-doo and to keep it under control. Then, at some point, he let go with one hand, and then used that hand to remove one of KJ's arms from around cousin S and to pull her hand behind her back and place it directly on the skin of his erect penis. While doing this he told KJ to squeeze it. He did all of this without losing control of the sea-doo and without attracting the attention of cousin S.
199While I cannot say that it would be impossible for him to do this, I can and do say that it strikes me as being very unlikely. It is certainly less likely than the original scenario where MCJ was simply bumping up against KJ as the sea-doo bounced across those waves. Of course, in that scenario, absent the requisite intent, MCJ did not commit either a sexual assault or sexual interference.
200After considering all of the above, I am not satisfied that the Crown has proven guilt beyond a reasonable doubt and the charges relating to KJ will also be dismissed.
THE ALLEGATIONS BY LH
201MCJ has been charged with two counts of sexual assault with respect to LH. The first of these is alleged to have occurred between March 1 and August 31, 1998. The second is alleged to have occurred on July 23, 2005.
202The following is a brief summary of her evidence regarding these alleged offences.
203She was the younger sister of LJ, mother of KJ and niece of MCJ.
204While growing up, LH was close with all of the extended family. She did not have much to do with MCJ and did not remember anything about him except being in a sports car. She and LJ spent a lot of time at their grandparents' home when their parents separated. She then saw MCJ a lot, but she did not spend much time with him.
205She gave birth to KJ when she was 15 years old.
206When LH was 18, her mother lost her job and moved in with her now husband. LH stayed with her maternal grandparents for a short time and then moved into the basement of MCJ and his wife, Mrs. MCJ. The arrangements were made with Mrs. MCJ who said that the tenant in their basement was moving out. LH was familiar with the house because MCJ had bought the house from LH's grandparents.
207She went to the house the night before she was to move in. The previous tenants still had their property in the apartment and she stayed upstairs. MCJ came into the room where she and KJ were on a mattress on the floor and gave her a kiss good night. It was how her husband would kiss her. MCJ did not use his tongue but the kiss was too long. She did not do or say anything in response. She was uncomfortable and did not want to be there but did not tell Mrs. MCJ because it would upset her.
208The next morning she went downstairs with MCJ to see the apartment. She was wearing a t-shirt and pyjama shorts. MCJ was wearing track pants. After looking at the apartment, she was walking upstairs when she stopped and turned around. She felt, but did not see, his penis touch the back of her calf. Nothing was said. She pretended like it never happened and went quickly upstairs to join Mrs. MCJ and KJ. She was certain that she had not felt a finger or an arm or a leg touch her. It was a penis.
209One day she woke up to see MCJ standing by the couch that she was sleeping on with KJ. His hand was on her right breast over her clothing. He was not squeezing the breast. Nothing was said by either of them. She opened her eyes and he walked away.
210She did not usually sleep in the bedroom where KJ slept. There was no lock on the bedroom door. She slept on the couch in the living room with either the kitchen light or the television on for light. That had been her habit even before she moved into the apartment because she did not like sleeping in the dark. When MCJ started coming into her apartment, she turned the lights off. Even though she could not see him, she would hear him at the bottom of the stairs and she could see that he was there. She knew that it was him. He would just stand there. She did not know how often he would come downstairs but it was not often. She tried to have friends, her boyfriend or a cousin stay overnight with her so that MCJ would not come downstairs. She would then sleep in the bedroom. KJ's father stayed overnight numerous times because it was easier for him than to take KJ on the bus to Mississauga. It also helped her not to be alone.
211When LH was upstairs in MCJ's home, she always felt like he was looking at her, sitting with her or brushing up against her. One time when she was at the countertop using the telephone, he brushed the groin area of his body against the back of her body briefly.
212Some times when he bothered her, LH told him to go away or to "fuck off". She was more assertive when others were around because she knew MCJ would listen if there were people around, but she did not know what he would do if no one was around.
213Other times, he would touch her shoulder area and she would walk away. Uncomfortable incidents happened throughout the time that she lived there. Once, LH was sitting on the couch in the living room of MCJ's home. The back of the couch faced the picture window. Mrs. MCJ and a cousin were outside and could have seen in the picture window when MCJ came towards LH. She put her hands up to stop him from kissing her on the mouth. MCJ said he was sorry.
214The last incident led to LH leaving MCJ's home. MCJ came downstairs to LH's apartment and asked for a drink. When she was giving it to him, he grabbed her and pulled her down onto his lap. He told her a number of times that he wanted to fuck her. She was frightened and pushed off of him. He had his arms around her back. She stood up but MCJ still held her arm. She told him, in a raised voice, to leave.
215MCJ was concerned about what Mrs. MCJ would be told. He wanted to know what LH would tell Mrs. MCJ. He looked concerned but his voice remained normal. LH was concerned that he would do something because she was alone although in cross-examination, she agreed that the door at the top of the stairs could have been wide open. LH told him she was going to lock the door and she did so after he left. LH resolved to leave the apartment after this happened.
216The next morning, LH was alarmed that there was a noise upstairs. No one was supposed to be home. She waited until it was quiet in the house then she went upstairs to use the phone to call her friend Shelley who came fairly quickly and agreed to take her to Shelley's home.
217While both LH and Shelley were still at the house, MCJ returned in the company of LH's friend Eric who was home from Saskatchewan visiting family and came to visit LH as a surprise. Eric ran into MCJ who brought Eric to LH. Eric stayed with her for one or two nights. After Eric left, LH called LJ's boyfriend Shane to come and pick her up to get her out of the apartment. LH grabbed a few things and went to LJ's house. She thought she told Shane that she needed to get out of there because she was afraid of MCJ but she does not know if it was when he picked her up or on the way to LJ's or at LJ's.
218LH said she told LJ that MCJ was "doing things" but she did not provide details. She knew that LJ did not want to know details because she never wants to hear bad things or talk about bad things.
219LH knew LJ felt badly and guilty that LH went to MCJ's home. LJ did not tell LH what had happened but she told LH that things had happened and she felt badly for letting LH go there.
220LH went to a women's shelter. Her family picked up her belongings from MCJ's house while she was at the shelter. She misled people by telling them she could not leave the shelter, so that she did not have to return to the apartment to collect her belongings.
221In July 2005, after a cousin's wedding, everyone went back to her aunt's house. LH did not leave when she saw MCJ there. She denied spending time with him however, having fun or drinks with him or being in the hot tub with him and LJ. At one point, LH was in a bathroom taking the pins out of her hair when she saw MCJ in the mirror. She was in a bathing suit with her back to MCJ. He put his hands on her breasts for a second. She told him to get out. He smiled or laughed and left.
Assessment of LH's Credibility and Reliability
222In assessing LH's credibility and reliability, I note the following.
223She did have an animus towards toward MCJ even before she became aware of KJ's allegations. Considering that prior animus together with her reaction to KJ's allegations I am satisfied that LH may have had a motive to fabricate her allegations against MCJ.
224At both trials, she was an adult testifying about events that occurred when she was an adult. Accordingly she should be assessed according to the criteria applicable to adult witnesses.
225These are, however, less significant factors in my finding he evidence to be unreliable. In that regard, I am most concerned by the fact that LH's evidence was replete with inconsistencies and implausibilities.
226I will examine these in some detail.
227LH did not tell Detective Nagra that MCJ touched her breast while she was napping on the couch. She did testify to that effect during the first trial. She said that her friend Shelley had called her while the first trial was going on and reminded her that LH had told Shelley about MCJ touching her while she slept.
228Even then, however, LH could not say when this incident happened, or even when it happened in relation to the other incidents.
229Her evidence with respect to what KJ disclosed to her and to LJ was inconsistent with that of both LJ and KJ. Those inconsistencies are dealt with in my summaries of their evidence and I will not repeat them here. Her explanation of these inconsistencies was that LJ and KJ were wrong.
230LJ also disagreed with LH regarding LJ attending to help move LH's property from MCJ's house and regarding LH being in the hot tub with MCJ at the family wedding. I also dealt with these in my summary of LJ's evidence.
231LH testified that she called Detective Nagra following her interview to tell him that MCJ's kiss was not passionate. In cross-examination, she said if Detective Nagra said that the conversation did not happen, then he would be wrong. Crown counsel agreed that, while LH did contact Detective Nagra regarding one point, it was not related to the kiss that she had described as passionate.
232In summary then, there were a number of inconsistencies between the evidence of LJ and that of LH such that the evidence of at least one of them had to be incorrect with respect to each of those matters. In each instance, I am unable to say, with any degree of certainty, whose evidence that might be.
233There were also a number of inconsistencies between the evidence of KJ and that of LH such that the evidence of at least one of them had to be incorrect with respect to each of those matters. In each instance again, I am unable to say, with any degree of certainty, whose evidence that might be.
234There was also an inconsistency between the evidence of LH and that of Detective Nagra. It is agreed that LH was incorrect with respect to that matter.
235I also note a number of implausibilities in LH's evidence.
236Even before she moved into MCJ's house, she already thought that MCJ was creepy and she felt uncomfortable around him as a result of having witnessed him kissing LJ. This was exacerbated on her first night in the home, when MCJ came into the bedroom to wish her goodnight and kissed her inappropriately on the mouth. She decided that she did not want to be there anymore, and tried to figure out how she could avoid paying the rent. However, rather than leave. On the contrary, she moved in and paid the rent the next day.
237LH was vague and imprecise about the details of MCJ coming downstairs. She could not say unable to say with any certainty when it started, how frequently it occurred, or when he last did it relative to when she moved out.
238Her response to this also makes no sense. She did not say anything to MCJ or to his wife, did not complain of this behaviour and did not try to prevent it by locking the door or sleeping in her bedroom.
239Her explanation that she did not want to upset Mrs. MCJ is inconsistent with her telling MCJ to "fuck off" in the presence of Mrs. MCJ.
240I cannot accept her description of MCJ touching her calf with his penis while climbing the stairs. It defies reason. It is difficult to conclude that what she described was evenly physically possible.
241She did not see an exposed penis either before or after this occurred. Somehow, MCJ managed to remove his penis from his pants, touch the back of her calf with it, and then return it to his pants while they walked up the stairs.
242Based on the positioning LH described, and the fact that MCJ is taller than LH, his crotch area would likely be in line with her knee or thigh. If LH was high enough above MCJ so that his crotch area would be in line with her calf, he would have to be further steps below and behind her. The increased distance between them would make it even less likely that his penis could reach her calf.
243LH's allegation that MCJ grabbed her breasts in the bathroom at the after-party for the wedding is neither reliable nor credible. She had consumed at least ten alcoholic drinks on her own evidence. Further, in an effort to buttress her claims that she had been repeatedly assaulted by MCJ over the years, LH claimed that she did everything in her power to distance herself from MCJ and to ensure she was nowhere close to him. However, this was undermined by LJ who testified that she and LH had spent as much as two hours in the hot tub with MCJ that night drinking, talking, laughing, and having a good time.
244After considering all of the above, I am not satisfied that the Crown has proven beyond a reasonable doubt that any of the events described by LH happened and the charges relating to her will also be dismissed.
CONCLUSION
245All of the charges against MCJ are dismissed.
Released: April 1, 2015
Signed: "Justice D. A. Harris"
