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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(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 —
L (J)
Before: Justice J. De Filippis
Heard on: February 21 – 23, March 20, April 9-11, & June 20-21, 2018
Reasons for Judgment released on: July 6, 2018
Counsel:
Ms. P. Vadacchino — counsel for the Crown
Mr. A. Burton — counsel for the accused
Judgment
Introduction
1The defendant is charged with sexual assault and sexual interference, with respect to his daughter, between April 11, 2016 and January 27, 2017. She is now six years old. I will refer to her as the complainant.
2At a judicial pre-trial before one of my colleagues, it was decided that this trial would proceed in three stages, each separated by several weeks: (1) Section 715.1 and Khelawon application; (2) Admissibility of the defendant's statements to various officials; (3) Potential similar fact application and Defence evidence, if any.
3On March 29, my ruling with respect to stage (1) was sent to counsel. It was filed on the record on April 9. The Crown later advised it would not bring a similar fact application and Defence counsel conceded that the statements made by him to child protection authorities and the police are voluntary as that word is defined at common law. Accordingly, the admissibility hearings for stages (2) and (3) were abandoned.
4The parties also agreed that the evidence called on stage (1) is admissible on the trial proper. Having regard to this approach, and to provide a clear narrative, this decision begins with my ruling on stage (1). The present reasons continue with evidence called on stage one that was not noted in ruling because it was not relevant to it and additional evidence called on the trial proper.
Issues and Ruling on Stage 1
5This voir dire concerns a Crown application to tender three out of court statements by the complainant; (i) an initial one sentence utterance to JN and JL, (ii) words and gestures recorded by Ms. Janice Ferguson during play therapy and (iii) a video recorded statement given to a PC Sanders. The Crown relies on the principled exception to the hearsay rule to justify the admissibility of the first two statements and section 715.1 of the Criminal Code with respect to the video statement. The Crown submits that the complainant's acts and drawings during play therapy is admissible as non-hearsay trial evidence. In the alternative, the Crown submits the out of court acts are admissible on the same basis as her therapy statements.
6The Defence asserts that the complainant's out of court actions, as well as her words, are hearsay and presumptively inadmissible. Having regard to my conclusion, I need not resolve the debate about whether actions and words are to be treated differently; that is, I have proceeded on the assumption that the Defence position is correct and rule in favour of the Crown.
7This trial commenced on February 21. On March 29, 2018 I advised counsel as follows with respect to the first stage:
The out of court statement attributed to the complainant and given in evidence by JN and JL is admissible pursuant to the principled exception to the hearsay rule;
The out of court statements and actions attributed to the complainant and given in evidence given by Ms. Ferguson is admissible pursuant to the principled exception to the hearsay rule;
The video recorded statement given by the complainant to PC Sanders is admissible pursuant to s. 715.1 of the Criminal Code.
8These are my reasons.
Evidence
9On April 11, 2016, PC Bozza received information that a four year old girl had been sexually assaulted by her father. As will be discussed below, he learned that the girl had stated that "daddy ate my patoon". The officer arranged to meet with her the next day at the Child Advocacy Centre (CAC). He met the complainant and her mother in the "play room" at the centre. However, notwithstanding pressure from her mother, the child refused to go into the interview room with him alone and answer questions. The officer explained that he could not interview the girl in the play room because of the absence of recording facilities and noted that it is contrary to protocol to conduct such an interview in the presence of a parent. The officer abandoned efforts to take a statement and told the mother not to discuss the allegations with her daughter. On April 22, 2016, PC Bozza advised the complainant's mother that there was insufficient evidence to proceed with charges and that the investigation was suspended.
10The investigation recommenced on November 23, 2016 after PC Bozza received a call from Ms. Janice Ferguson at Family and Children's Services (FACS). According to Ms. Ferguson the complainant had disclosed sexual abuse by her father during a therapy session. An interview was arranged with the girl for January 18, 2017 at CAC. PC Bozza asked for a more experienced and female officer, PC Sanders, to conduct it. The 19-minute interview between PC Sanders and the complainant was video and audio recorded.
11JL is the complainant's mother. She was born in New Brunswick and is now 32 years old. She has an eight year old year son from a previous relationship. A couple of years after he was born, she became pregnant with the complainant. The defendant is the father. However, the parties separated in 2011, before the girl was born. Custody and access is governed by a court order; she has custody and the defendant has access on weekends. JL explained that he would pick up the complainant each Friday and return her on Sundays.
12JL testified that on April 7, 2016 she was at a neighbour's home. The complainant was in the home playing with the neighbour's daughter. As they sat at the kitchen table, the complainant came into the room and said, "Mommy, Daddy ate my patoon". This upset JL because the defendant had once told her that patoon means "private parts". This discussion arose because within the preceding year, the complainant had said that word and when JL told the defendant about it, the latter said he had told their daughter that she could use that word when referring to her vagina.
13JL testified that she immediately took the complainant to the couch in the living room and asked "is there anything else you need to tell mommy". Her daughter replied, "daddy punched me in the face and ate my patoon". JL explained that she could not understand this as she had never seen marks on her daughter's face after the weekend visits with the defendant. JL left her neighbour and took her daughter home.
14JN lives in the same housing complex as JL. She confirmed that on April 7, 2016, while the two women enjoyed a glass of wine at her home and their children played upstairs, the complainant came into the kitchen and suddenly said, "daddy ate my patoon". She testified that when JL heard this, her "jaw dropped" and when JN asked what it meant, JL replied "pussy". JL and the complainant left soon after. JN testified that she has had limited contact with JL since this incident and has never met the defendant. In cross-examination, JN agreed that JL told her she had discussed the allegations with her daughter and had struggled with the direction from police not to do so.
15The next day was a Friday and the defendant arrived to pick up his daughter. JL told him their daughter said "daddy ate my patoon". She testified that he laughed and replied, "really, I can't believe that, did she really say that?". Lacking "hard evidence" and confused, JL said nothing more as the defendant took the complainant away for the weekend.
16When the defendant returned on Sunday, JL raised the issue again. The complainant went into the home while her parents talked on the porch. JL testified that the defendant said the he did not want her to know but "it's been happening a long time". He said that he had not said anything because he did not want the police or FACS involved and explained that their daughter had been "going down on me". JL understood this to mean that her daughter had placed her mouth on her father's penis. The defendant added that this had happened more than once and he blamed JL's brothers for exposing the complainant to this sexual act. JL testified that as soon as the defendant left, she sat on the couch and was "traumatized".
17That evening, after the complainant was put to bed, JL decided she would telephone the defendant to resume the conversation and asked her neighbour, CD, to secretly witness the discussion. JL explained she did this because of a prior experience when an allegation she brought to the attention of authorities was not pursued because of a lack of corroboration. Her neighbour agreed to the request. JL contacted the defendant and put the telephone on speaker mode. In the discussion that followed, the defendant repeated and elaborated upon what he had said earlier. The neighbour took notes of the conversation and presented these to the court. The defendant elaborated on his earlier disclosure that his daughter had, on several occasions, attempted to touch his penis with her hand or mouth. He suggested she had been exposed to "porn or something" and blamed others for this.
18At trial, JL presented as stressed and emotional. In cross-examination, she too often appeared confused by simple questions such as, 'Did you comply with the police direction not to discuss the allegations with your daughter'. When pressed on her answer that she could not recall, she pleaded trauma.
19Jodi Nicholls works at FACS. She interviewed JL in April 2016. She found her to be "scattered and upset and lacking in focus". Ms. Nicholls instructed JL not to discuss the allegations with her daughter. She testified that JL "had a hard time understanding this".
20The complainant was subsequently placed in counselling sessions, some of which included meetings with Ms. Ferguson at FACS. She is a member of the Ontario College of Social Workers and, currently pursuing a Master's Degree, with a specialty in clinical trauma and attachment therapy involving children. However, she is not specifically designated as having a particular expertise with children. She testified that for the past five years she has used play therapy as the medium for children to express themselves.
21Ms. Ferguson was aware that JL had alleged the defendant had acted inappropriately toward his daughter and that charges had not been pursued because the complainant had not disclosed any sexual abuse to the police. She met with the complainant nine times between June and November 2016. She testified that the therapy she conducted was child led and that its purpose was therapeutic, not investigative. On the 9th session, on November 23, she began by playing a three minute movie entitled, "My Body Belongs to Me". Ms. Ferguson described the movie as age appropriate in which a young boy talks about good and bad touches and about how he felt on a bad touch by his uncle. According to Ms. Ferguson, when this scene was played, the complainant covered her vaginal area and said, "yuk, my dad did that to me". Later, as the child played, she said her "patoon" had been touched. Ms. Ferguson testified she did not know what that meant and asked the complainant to draw it on a "body template". In the drawing, the complainant highlighted the vaginal area.
22After completing the drawing, the complainant went to the dollhouse area. Ms. Ferguson asked her to show how her father had touched her with the use of dolls. The dolls available to the complainant included a human looking baby doll and puppets. Ms. Ferguson testified that the complainant did the following, without any prompting or interference from her:
She picked up a baby doll, carried it, undressed it, said "this is what my dad did", and demonstrated licking of the vagina while the doll was held over her face, laying on its side, and laying on its back with legs spread;
She stopped and picked up a female puppet and gave a male puppet Ms. Ferguson. The complainant pointed to the female puppet and said, "this is me and you are daddy". Holding the female puppet, she said to the male puppet, "you are yucky, you are gross, you are not supposed to touch me"
She stopped and picked up a zebra puppet, hid the female puppet behind it and said," you are ok", as she stroked it.
23Ms. Ferguson asked the complainant where this had happened and was told "at daddy's house in dad's bed". When asked how often, the complainant shrugged. Ms. Ferguson reported these events to her supervisor and was told to stop the therapy sessions pending investigation by the police.
24PC Amanda Sanders is a member of the Child Abuse Unit. She testified that she was asked by another member of the unit, PC Bozza, to interview the complainant. She did so on January 18, 2017 from 9:34 AM to 9:53 AM. The interview is video and audio recorded. After identifying herself as a police officer and asking age appropriate questions about the difference between telling the truth and telling lies, the complainant promised to tell the truth.
25The discussion began with questions about school and the complainant's favourite things and then moved on to body parts. The following are the relevant excerpts:
P.C. SANDERS: Any other parts on your body that your bathing suit covers?
Complainant: (Indicates vagina.)
SANDERS: Right there? Okay. Okay. Who's allowed to touch that area on your body?
C: Me.
SANDERS: You, right. Has anybody else ever touched that area on your body?
C: No.
SANDERS: What about if you ever needed help in the bathtub, has anybody ever helped you?
C: Yeah.
SANDERS: Who's helped you?
C: Momma.
SANDERS: Has anyone ever helped you?
C: No.
SANDERS: No? Okay. Has anybody ever touched that area on your body?
C: This?
SANDERS: Mm-hmm.
C: No.
SANDERS: No? Okay. So boys and girls are a little bit different, right? Do you know that…
C: Yes.
SANDERS: And what kind of private parts do boys have?
C: Boys-, patoons(ph)?
SANDERS: Pardon?
C: Patoons?
SANDERS: Patoons? And what's that?
C: Patoon.
SANDERS: What's a patoon?
C: Patoon means you're going to, to swim with, with, with your-, your private parts.
SANDERS: Okay. Have you ever seen a boy private parts?
C: Y-, no.
SANDERS: No? What does a-, what's a boy private parts look like?
C: I don't know.
SANDERS: You don't know?
C: And I still don't know.
SANDERS: Is it the same as a girl private parts?
C: No.
SANDERS: How come it's not the same as a girl private part?
C: I really don't wanna hear it. I wanna go with my momma.
SANDERS: Okay. Just a few more minutes. I just wanna make sure that you know what parts of the body's they are, 'cause you seem like you're a big girl. You're in SK, and I wanted to see if you knew what kind of body parts people had.
C: I don't know.
SANDERS: You don't know?
C: I don't know what…
SANDERS: Okay.
C: …body parts.
SANDERS: Do you have any brothers or sisters?
C: I have a brother.
SANDERS: You have a brother? And how old's your brother?
C: Seven.
SANDERS: And what's his name?
C: [XXXX]
SANDERS: Have you ever seen [XXXX]'s private parts?
C: No.
SANDERS: No?
C: It's gross, he never licked (inaudible) private parts.
SANDERS: How come?
C: Only my daddy.
SANDERS: What?
C: Only my daddy licked my private parts.
SANDERS: I'm sorry?
C: And everybody does it. Oh.
SANDERS: I just didn't hear what you said, you said only my…
C: Daddy's, uh, eaten my-, licked my private parts and ate it.
SANDERS: Only your daddy's licked your private parts?
C: Yep.
SANDERS: Tell me about that.
C: He ate it, too.
SANDERS: Tell me about that.
C: I-, my daddy was being-, he was trying to be bad and bad and bad, bad. He wants to be bad. It-, but, oh, right, I don't wanna hear it now.
SANDERS: Okay. Who's your daddy?
C: I don't know.
SANDERS: I don't know him either, I've never met him. What's his name?
C: Daddy.
SANDERS: Daddy? Okay. And what do you mean by he, he licked your private parts? What do you mean by that?
C: And ate it…
SANDERS: What…
C: …because he was trying to be mean and eat my private parts, and be selfish eating private parts.
SANDERS: And did he say anything when that happened?
C: No. He just licked and then it-, and I laid in, in bed and then he, he did this in circles and then he licked my private parts and eated it.
SANDERS: Can you show me what your body was doing? How your body was?
C: Like this (demonstrates).
SANDERS: Okay. And where was your body?
C: (No verbal response.)
SANDERS: Where did it happen?
C: I don't know.
SANDERS: Were you on a plane, on a…
C: No.
SANDERS: …train, or something…
C: No.
SANDERS: …else?
C: On something else.
SANDERS: What?
C: On daddy's bed.
SANDERS: On daddy's bed?
C: Yeah.
SANDERS: Okay. And what happened next?
C: He ate my patoon, and then he licked it.
SANDERS: And, and what do you mean-, what do you use to eat?
C: Food.
SANDERS: Okay. And when you say that he ate your patoon, what area on your body is that?
C: (Indicates vagina.)
SANDERS: Okay. And did you have clothes on?
C: I don't really know.
SANDERS: Okay. And how did that feel?
C: Nothing.
SANDERS: Okay. And you said it happened on daddy's bed? And what was daddy's body doing? Can you show me?
C: (Demonstrates.)
SANDERS: So was daddy laying down or sitting up, or something else?
C: Uh, turning his body like a circle eating my patoon.
SANDERS: Okay. And what did-, what was he wearing?
C: I don't know.
SANDERS: Pardon?
C: I don't know.
SANDERS: You don't know? Okay.
C: Can I still get out?
SANDERS: Okay. In-, just in a few minutes, okay? I just wanna hear a little bit more about that. Can you come sit down for one sec?
SANDERS: Okay. And how did, how did your daddy eat it? Your patoon?
C: I really wanna go.
SANDERS: So what kind of body part did your daddy use to eat your patoon?
C: (Indicates mouth.)
SANDERS: And what's that?
C: Mouth.
SANDERS: Mouth, okay. And what part of his mouth did he use?
C: (Indicates tongue.)
SANDERS: What's that?
C: Tongue.
SANDERS: His tongue, okay. And what did that feel like?
C: It's ticklish.
SANDERS: Okay.
C: Can you…
SANDERS: And…
C: ...stop? I don't wanna hear it.
SANDERS: Okay. And did, did he touch any other parts of your body?
C: I still don't wanna hear it.
SANDERS: How come?
C: 'Cause I wanna go see my momma.
SANDERS: How come you don't wanna hear it?
C: 'Cause I wanna go see my momma.
SANDERS: Okay. Pretty soon. What happened after that happened with your dad?
C: I still don't wanna hear it.
SANDERS: How come?
C: 'Cause I really wanna see my momma. That's it.
26The complainant is now in grade one. She testified, by video link, from a room adjacent to the courtroom. She demonstrated how she understood the difference between the truth and a lie and promised to tell the truth. The aforementioned video was played for her to watch. She did not sit still for much of the video and interrupted several times to say it made her feel frightened. At one point she said to me, "I hope you can try not to be scared of this video like I am."
27When asked, after the video was played, if she remembered "talking to the lady in the movie", the complainant answered, "a little bit." In response to further questions, she said the movie is "about me and I'm scared to watch it."
28The following questions were asked by Crown counsel and answered by the complainant:
Q: When you talked to that lady in that room did you tell her the truth?
A: Yes. I didn't know all the things, [inaudible], i didn't know, a lot i didn't know
Q: The things that you told her about your body parts were they the truth?
A: Ahhhh Other than I couldn't do the laying down the circle thing the circle thing right
Q: I don't know what that means what's the circle thing
A: It's like
Q: For the record the witness is lying on the ground, [XXX] is lying on the ground
A: [inaudible], I couldn't do that
Q: Alright now we talked about private parts do you remember that
A: No, a little bit
A: You're a lot older than when you saw that video, do you remember that do you agree with me
A: Yes, I remember when I was five
Q: Alright do you remember now watching that, making that movie
A: A little bit, I think so, I didn't, no, I didn't know
Q: Is that ok, so I'm not sure, did you say yes you remember making that video or no you didn't make that video
A: Um I didn't know that I was making that video
Q: Oh, you didn't know that you were making that video but you remember that movie now you're watching it (yes, nodding her head)
A: ... inaudible no
Q: When you were speaking to the lady in the video you were trying to tell the truth
A: Yes
29Cross examination was brief as it was difficult to direct the complainant to the allegations in question. She repeated she was scared to watch the movie and then asked to come into the courtroom. I said she could do so. She entered the witness box and completed her testimony. She presented as unafraid and curious about her surroundings, including my robes. When I thanked her for coming, she said "thank you for coming, thank everybody for coming".
Section 715.1
30Section 715.1 permits a videotaped statement of a complainant under the age of 18, on enumerated offences, including those alleged in this case, to be admitted for proof of its contents if (1) it was made within a reasonable time after the alleged offence, (2) the complainant describes the act complained of, and (3) the complainant, while testifying, adopts the contents.
31In determining the reasonableness of time, the court must balance a number of factors, the most important being the reasons for the delay and the impact of delay on the child's ability to accurately recall the events in issue: R. v. P.S., 2000 CanLII 5706 (ON CA), [2000] O.J. No. 1374 (C.A.) at para 71. In this regard, it has been recognized that (a) children often delay disclosure; (b) some delay may be necessary depending on where the child resides and whether facilities are available; and (c) some delay may be necessary for a prior investigation to determine the seriousness of the allegations: R. v. D.O.L. (supra) at paras 75-77
32The test for adoption does not require a present recollection of the events in question. Indeed, that is a major reason for s. 715.1. The witness need only testify to having a present memory of having given the statement with the intent to be truthful. Adoption is a test for admissibility and is not to be equated with ultimate reliability. If a court rules the statement has been adopted, the video becomes evidence of the events described, as if the witness were giving the statements on the videotape in open court. An adopted videotaped statement should, together with the viva voce evidence given at trial, comprise the whole of the evidence-in-chief of the complainant: R. v. C.C.F. (supra) at para 45
33The allegations in this case involve allegations of ongoing sexual abuse over a period of time. JL testified that the defendant introduced his daughter to the word "patoon" when she was three or four years old. The child initially uttered it at the home of JN when she was four years old in April 2016. In the days that followed, she refused to be interviewed by the police. The video statement was taken in January 2017, after a play therapy session during which the complainant disclosed details of the abuse. It is likely that complainant's mother influenced her decision to speak to the police but the video record suggests most of the words spoken are her own and that she is able to recall events. Having regard to these circumstances, as well as the child's tender age, I am of the view that the statement in question was made within a reasonable time. The concern about the influence of JL on the complainant can be addressed in determining ultimate reliability and does not trouble me on the issue of threshold reliability.
34I conclude that the other criteria for admissibility are also met. The complainant understood the difference between a lie and a truth and promised she would tell the truth. She had a limited attention span and was reluctant to watch the video record or to talk about the allegations in question. With some prodding, the complainant eventually acknowledged "making the movie" and adopted it.
35This is not a case in which the complainant did not recall the statement; rather, she did not wish to be exposed to it, or discuss it. When asked at trial about the allegations, said she did not "want to hear it". This phrase is also used by the child during the video interview. Notwithstanding this, the complainant does reveal details of the alleged abuse. In this regard, certain comments made in trial testimony support the inference that the complainant did listen to the video statement and does recall her prior allegations. In particular, in her interview, she told the officer that the defendant had licked and ate her patoon and pointed to her vaginal area. In recounting this act, the complainant described the defendant as having made a circling motion with his body. In trial testimony, when asked if she had told the officer the truth, the complainant agreed and then laid down on the floor and stated, "Other than I couldn't do the laying down the circle thing the circle thing right".
The Principled Exception to the Hearsay Rule
36Hearsay is an out of court statement offered for the truth of its contents. It is presumptively inadmissible because of the dangers associated with it. However, where the hearsay presents minimal dangers and its exclusion would impede accurate fact finding, it may be admitted. One of the routes to admission is the principled exception to the hearsay rule. This requires that the twin criteria of necessity and threshold reliability are met on a balance of probabilities: R. v. Khelawon, 2006 SCC 57 (CanLII), [2006] 2 S.C.R. 787.
37Necessity is established when the evidence in question is reasonably necessary to prove a fact in issue and includes situations in which the witness is unable or unwilling to provide an accurate and frank recital of events: R. v. F.(W.J.) (1999), 1999 CanLII 667 (SCC), 138 C.C.C. (3d) 1 (S.C.C.). Unwilling usually means the witness has recanted or professes not to remember anything. As already noted, with respect to the application of section 715.1 that is not the case here. This is not an adult who finds it stressful to testify. This is a six year old child who does not want to discuss the things she previously said her daddy did to her. To be clear, the complainant does not appear traumatized by the court proceedings per se. When not faced with the details of the allegations she presented as vocal and social (albeit, distracted and restless). The problem is that the acts she has alleged frighten her; she does not want to "hear it" or talk about it. I find that necessity is established.
38Threshold reliability is established when the hearsay is sufficiently reliable to overcome the dangers arising from the difficulty of testing it. This can be accomplished by showing there are adequate substitutes for testing truth and accuracy (procedural reliability) or there are sufficient circumstantial guarantees that the statement is inherently trustworthy (substantive reliability). The former can be established by substitutes for traditional safeguards, such as a video recording of the statement, the presence of an oath, and a warning about the consequences of lying. Substantive reliability depends on an assessment of the circumstances in which the statement was made and any evidence that confirms or conflicts with it. See generally, R. v. Bradshaw, 2017 SCC 35 (CanLII), [2017] 1 S.C.R. 865
39The procedural substitutes are not present with respect to the initial statement made by the complainant to her mother and JN or the acts and words attributed to the complainant during play therapy. Accordingly, the admissibility of these two hearsay statements are governed by the principles of substantive reliability.
40In Bradshaw (supra), the Supreme Court of Canada held that in determining whether corroborative evidence is of assistance in the substantive reliability inquiry, a trial Judge should: (1) Identify the material aspects of the hearsay statement that are tendered for their truth; (2) Identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case; (3) Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statements; and (4) Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement.
41The initial statement by the complainant was short, simple, and spontaneous ("Daddy ate my patoon"). Leaving aside any credibility issues with respect to her mother that may arise from the fact she is separated from the defendant, the utterance was also heard by a neighbour, about whom there are no such concerns. The brevity of the statement alleviates worries about whether it was properly heard by the witnesses and conveyed to me in court.
42The second statement to Ms. Ferguson raises more challenging issues. The defendant's statement to JL suggests others are to blame for exposing the girl to pornography or abusing her. This speculation does not trouble me given the level of sexually explicit details given by such a young girl in the strikingly similar play therapy hearsay and video statement. There is also the possibility that Ms. Ferguson lied, misperceived, or wrongly remembered her observations. However, there is no suggestion of untruthfulness and cross-examination did not show that her trial testimony is inaccurate.
43I find that the complainant's initial utterance and her words and gestures during play therapy meet the test of threshold reliability. As noted with respect to the section 715.1 application, this ruling on admissibility does not necessarily impact on the question of ultimate reliability. What this evidence means with respect to findings of fact and/or inferences remains to be decided.
Stage (1) Evidence Not Noted In That Ruling
44I pointed out in the introduction to this decision that not all evidence called with respect to the ruling set out above was relevant to it. Accordingly, it was not referred to in those reasons. This requires that I revisit the testimony given by J.L.
45As already indicated, after the complainant's initial utterance, JL allowed the defendant to take the child with him for the weekend. She testified that she was confused about her daughter's disclosure especially since she had also reported that the defendant hit her in the face and JL had never seen evidence of that. However, she confronted the defendant about the utterance when he returned the child on Sunday evening. At that time he disclosed that the complainant had been acting in a sexual manner for some time. He added that on the recent weekend visit she kept talking about her "private parts". According to JL, the defendant blamed her father, brothers and a babysitter. He claimed they had abused the child and that one of JL's brothers introduced her to pornography. JL testified that she has never had a babysitter and her family has little contact with the child.
46This conversation with the defendant made JL even more upset and confused. She decided to telephone him later that evening to discuss the matter further and to have a third party secretly witness the conversation. The following day, JL took her daughter to the hospital and notified authorities about her concern that the defendant had abused the child.
47JL's testimony, especially in cross-examination, was sometimes vague and scattered. At times she appeared not to understand the questions. At other times, she could not recall details of conversations and events. JL was excused from the courtroom several times, pleading trauma.
48A matter of particular concern to Defence counsel is whether and to what extent JL had discussed the present allegations with her daughter. JL eventually acknowledged that PC Bozza had cautioned her not to do so and the following exchange between JL and Defence counsel occurred:
Q: Is it true as you said earlier that you never discussed the allegations with [the complainant]?
A: I don't recall…this is troubling to me
Q: Yes, so you would discuss it with [the complainant]?
A: You are confusing me
Q: You did so because you knew [the defendant] had not been charged because [the complainant] did not give a statement to police?
A: No, I was shocked that [the complainant] said "daddy ate my patoon"
Q: Did you speak to her?
A: I was told not to speak to her
Q: So you never spoke to her?
A: Not that I recall
49JL knew what "patoon" meant because the defendant had previously informed her he had told their daughter to use that word rather than vagina. JL testified that she found this "awkward…why would a young child be talking about vagina"?
Additional Evidence
50CD resides in the same townhouse complex as the complainant and her mother. CD testified that on April 10, 2016, JL asked her to "witness a phone call". She attended JL's home and sat in the dining room. JL contacted the defendant and put the phone on speaker mode. The defendant was not told that CD was in the room and taking notes of the conversation.
51The notes made by CD are in evidence before me. CD testified that it accurately reflects what the defendant said, but she did not record what JL said. Some of the comments attributed to the defendant are in quotation marks, others are not. According to CD, among the statements made by the defendant are these:
[The complainant] "was going to try and touch his private area when he was sharing a bath" with her. He added that he has "decided to not have baths with her anymore since that happened".
[The complainant] asked him, "Can I put my mouth on your private?" When the defendant responded, "who showed you this", the girl replied, "Joel". On hearing this, he told his daughter, "Do not put your mouth on someone's patun"
[The complainant] reported that she saw this on a TV screen with Joel
This behaviour started some time ago and he suggested others who might be to blame for abusing the complainant or exposing her to pornography; namely P. [JL's father and the complainant's grandfather], a neighbour, children at school, and babysitters.
[The complainant] said, "She has had this done by 4 different people" and also [JL].
"We have to tell her to stop and say don't talk about stuff….don't talk to anyone about it"
[The complainant] covered her ears today when he told her "Don't say that, don't forget you don't touch anyone, you don't say anything"
52CD testified that JL asked her to take notes of the telephone conversation because she has epilepsy and "memory issues". She agreed it would have been better if she had made notes of both sides of the conversation, rather than recording only what the defendant said. CD added that her relationship with JL ended because the latter was "drinking a lot" and would not accept CD's concern about alcohol abuse.
53Ms. Jodi Nicholls was recalled on the trial proper. She testified that since the complainant refused to speak to police when they were first made aware of these allegations, the investigation was suspended and charges were not laid at that time. This decision does not end the inquiry into any child protection issues. Accordingly, she contacted the defendant on May 5, 2016 and invited him to meet with her and discuss the allegations. She testified that FACS cannot compel a person to speak to them. The defendant was told this and cautioned by Ms. Nicholls that anything he told her could be shared with the police.
54The parties met the next day for one hour. It was not recorded by video or audio. Ms. Nicholls took rough notes of the discussion which were used to prepare a report. According to Ms. Nicholls, the defendant described the following four incidents in response to concerns that his daughter had been sexually abused:
While he was having a bath with his daughter, she grabbed his penis and he stopped her from moving toward it as if to perform oral sex. The defendant asked her where she learned this and his daughter replied, "P".
The complainant came into his room, removed her diaper, and sat on his face. He was suffocating and pulled her away.
The complainant came into the defendant's bed one night and bit his penis.
The complainant asked the defendant if she could put her patoon in his mouth and he would not allow it
55When asked if he had reported any of these incidents, the defendant told Ms. Nicholls that he had not because he feared that JL would use the information to blame him. He also explained that he likes "P." a lot and did not want to get him into trouble. He added that he believed one of JL's brothers and two neighborhood boys had introduced his daughter to sexual activity.
56The defendant was arrested on January 26, 2017 for these offences. On arrest, he said, "[The complainant] got on top of me and I told Jodi Nicholls this". On arrival at the station, he told the booking sergeant, "I am innocent and I told Nichols that it was [the complainant] who did it to me".
57The defendant was formally interviewed after being cautioned and provided with his rights to counsel. The interview began at 6:42 PM and ended at 8:53 PM. It is video recorded. I was also provided with a 117 page transcript. It is necessary to quote at length from this statement so that the defendant's version of events is fully appreciated. Before doing so, it will be helpful to set out the basic assertions made by him.
58The defendant expands upon the statements he made to JL (as noted by her neighbour, CD) and Ms. Nicholls. He describes his difficulties with his wife, mother and sister. He makes a number of accusations: That JL abused their daughter; that others may have done so; that the complainant may have been exposed to sexual images; and that JL planted the present allegations in the mind of the complainant; The defendant describes an incident in which the complainant sat on his face and another in which she touched his penis. Throughout the conversation, he asserts his innocence.
DEFENDANT: My mother for 30 years. She's, uh, isn't allowed in my home.
BOZZA: (Inaudible) when's the last time you talked to her?
D: She's just like [J.L.], they're related…My sister (inaudible). My sister's the same. [J.L's] the same….These are all narcissists. They're all alienators. They all got rid of their men. They didn't care what they did to them, whether they were dead or alive. My, my mother threw my father out when I was not much older than [the complainant].
BOZZA: Mm-hmm. How long did you guys break up, you and [J.L]?
D: Oh, God. I, I don't wanna get into it. I don't-, that's just…I don't remember exactly. I, I asked her to leave because she was abusing me, assaulting me, abusing her son…spreading rumours, yelling horrible things in the parking lot for the neighbours to hear at three in the morning…She is evil.
BOZZA: Mm-hmm. Sounds like you guys didn't have the best relationship, yeah.
D: I did the best I could and tried to help her...but-, 'cause she has some serious problems, that's why I've been collecting information for the trial.
pp 16-18
D: …'cause I asked my daughter directly. I said, did anyone put their mouth on there? Who? And she said, mommy. Right away, not even a flinch.
BOZZA: Mm-hmm.
D: Right away, mommy. She didn't think about it. She knew it….That was it. I-, all I kept doing was repeating the same thing, don't do that, don't let anyone do that to you, nobody's supposed to touch you n-, like that, not even mommy and daddy. Just reinforcing it. Over six months it passe…without incident.
BOZZA: I'm, I'm confused. What, what did she do that made you say that, that, that she ended up saying [J.L.] was showing her?
D: Oh, she just like plunked herself up….But she didn't rub herself on me…She just like sat on me. She wasn't moving around.
BOZZA: Like (inaudible)…
D: Like she knew…
BOZZA: …on your lap, or?
D: My face. It's on the rep-, it's on the whole thing.
BOZZA: Okay.
D: But she wasn't there for more than a second. She-, 'cause she smothered me. I was sleeping and I (inaudible) her off. And that's it.
Pp 28-29
BOZZA: So you're s-, you-, you're saying she sat on, on you when you were, you were sleeping?
D: Yeah.
BOZZA: Where were you sleeping?
D: She was in her bed, and she came out of bed and did that. It's in the report…But I, I push her off and she just laid there quiet. What the hell? And I said, who showed you that? And she said, mommy. I said (inaudible).
BOZZA: Did, did you end up asking-, even ask [J.L] about it then?
D: FACS says-, yes, I did ask her.
BOZZA: What is she saying?
D: No. She asked me because our daughter said at a dinner table, she said, you eat supper, you don't eat patoon(ph)…Patoon is my nickname for vagina. I don't like saying vagina, I don't know why…I just don't like the word, so I made up that nickname for it.
BOZZA: Mm-hmm. So [J.L] asked you about this?
D: But [J.L] said, did you do that? And I said, no, she-, and then I told her what she did do…I said-, and then she-, in her thing, she said it was disgusting. I said, no, she told me you showed her that. And your father and some kid named Joey(ph).
p. 30-31
D: I was a ward of the court. I saw little boys beaten-, underage boys being beaten by social services….I was put in a group home….I, I called CAS because I was being beaten by my mother. She's why my nose is broken. I have a violent family, all the women, all my mother's sisters are violent….[J.L's] grandmother is just my mother's sister….And she threw her husband down the stairs and beat the hell out of him….They're all alcoholics, her grandmother, her father, her brothers, her aunts and uncles. Her unc-, uncle raped her aunt. Oh, this is endless with her….But she's a pathological liar and she is all about winning. She's a narcissist. She can't co-parent. I've tried to co-parent and that's why I was preparing for a trial.
BOZZA: It sounds like you guys got a, a tumultuous relationship, eh?
D: I didn't want a relationship with her.
BOZZA: Well, how, how did it come to be then?
D: She lied to me….She stole her-, kidnapped her son from her father-, his father….She told me he was beating her. That's the same thing she did with FACS….Exact same story. She put him through hell, said he was an alcoholic and a drug addict. Oh, lies, lies, lies….It's an alienator-, she's an alienator. …She's did it to him and she's-, now she's doing it to me. She's been trying to do it since my daughter was born. As soon as she moved, that was it. Like I seen her go through men, boyfriend after boyfriend, after boyfriend and how the hell is that gonna help (inaudible) these kids?
pp. 35-37
BOZZA: Okay. So what do you think I've been told first (inaudible) here?
D: Well, something lewd I'm sure. But something not true also. And I believe she coerced anything that my daughter would say at this point. She was only three and a half years old when this happened….Nothing's happened since then.
BOZZA: So you said there was two incidents. You said-, explained to me the time she came into you-, and sat on you when you were sleeping. What's…the other thing?
D: The other thing is just me asking her if anyone did that to her…And she sa-, and that's when she said her mother…She didn't say anybody else.
BOZZA: Why didn't you tell FACS at that time?
D: Come on, man…They've had her back since the beginning. ..How can I trust them? She's gonna lie and it put me right here. All I could do was make sure my daughter knew not-, it was wrong and not to do it, and to tell-, don't let anyone to do that-, and she's been good. I mean I'm a little surprised this even happened.
BOZZA: Well, if she told you that [J.L.] did that.
D: Yeah, but I told her don't-, that she shouldn't do that. Nobody should do that, not me, not mommy, not, uh, grandpa. Nobody. Not even, uh, other kids in school. You're too young for that. But she's, uh, you know, she's almost four. She's getting smart.
BOZZA: Did you believe her that [J.L.] did that to her?
D: Uh, I don't know.
BOZZA: You don't know?
D: I'm not gonna accuse her.
Pp 37-38
BOZZA: So what do you think [the complainant] ended up saying (inaudible) here today?
D: Whatever her mother told her to. She's probably afraid of her…I'm sure she's afraid of her mother. I'm, I'm not sure about [the complainant's step-brother], but he's very abused. He abused so bad he throws up. I couldn't take it anymore. (Crying.) (Inaudible) he already sees his father as well. I miss him very much. [JL] is very authorit-, authoritarian, you know?...She shakes him and grabs him, and squeezes him and yells and screams in his face…She gets him so upset, he throws up. And I went to see his room. When I-, the video I showed them with the feces-, with he's rubbing his poop as he's knocking his closet doors, but there was vomit all over his carpet. It was just awful.
Pp 44-45
D: So I couldn't take it anymore. [JL] was assaulting me. She pushed me down the flight of stairs. She could've killed me. Attempted murder right there.
p. 47
BOZZA: Well, I mean, you-, here-, here's one thing I am confused with. So if, if you're saying [J.L.], you know, dislike you this much, why do you think she used to let her-, let [the complainant] come see you on weekends then?
D: It's just a control thing.
BOZZA: So do you believe [J.L] when she says that [the complainant] told her that you ate her patoon? Do you believe that, or no?
D: Uh, no, I believe that she asked her over and over until she said she- I did.
Pp 48-49
D: [The complainant] wasn't molested by me. She did something that she saw or was done to her. She could've seen it innocently…and was demonstrating it, I don't know.
p. 53
BOZZA: [The complainant has] given a lot more detail to the therapist and now the police, okay? She's since been interviewed again by the police. What do you think she told the police this time?
D: Well, that someone did it to her. She'll be telling them what they did.
BOZZA: Why is she saying you did it?
D: Her mother…To get rid of me.…(inaudible) coaching her (inaudible)…I don't have any desire sexually for my child or any children.
BOZZA: So when, when my partner interviewed, um, [the complainant]… said that, uh, you licked her patoon. Okay, did that happen?
D: No. No, but her-, when she sat on me, my face was there.
BOZZA: Your face was there.
D: I wasn't-, no, I wasn't licking her.
BOZZA: Okay. Where did that happen? She said it happened in your bed.
D: In my bed, yeah….She plunked on me.
Pp 55-56
D: So she told you I licked her? This is (inaudible…is all she had to say?
BOZZA: ...she says she li-, you licked her patoon. That it tickled, and that you guys were laying in bed. She demonstrated how you guys were laying in bed and she did not seem happy about it.
D: Wow.
BOZZA: Okay?
D: Heavy shit, man.
p. 58
D: My daughter, uh, is, uh, mimicking what she's hearing, what she's learning. She's being trained by a sociopath who's very dangerous to me. I'm saying that and I mean it. And my daughter's saying that she's upset about what I did. It's not from me.
p. 60
D: I might die for something I didn't do just because she, just by coincidence, jumped on me one day. It wasn't a sexual act, it wasn't being sexual.
BOZZA: So do you think that one incident caused her to say that you licked her patoon and…
D: Yeah, absolutely.
p. 65
D: Look what she did to me and to our child….My child was happy until this happened. But as soon as she knew she got named, she had to flip it over. She-, my daughter told me her mother did it….But until I told [J.L], she started saying I did it. Don't you see?
BOZZA: I don't understand why you wouldn't have reported this to somebody…
D: Well, who?
BOZZA: Police, CAS, anybody. I don't get it.
D: She-, because they'd turn it around. Women turn it around and say it's a man. They always do, and then they all-, men go to jail all the time. Like she's assaulted me and then called the police trying to get me arrested. She could have me thrown in jail and I didn't touch her. That's the kind of woman she is.
p. 66
D: It wasn't a part of our daily, uh, regiment. But, uh, it makes me very sad that she's actually saying that. But I can understand why she's saying it and how she's saying it. Mom says, he put mouth on there? No. Did he put his mouth on there? And that's where it becomes a yes, when the threat becomes bigger and bigger 'cause the b-, the yelling doesn't stop. I know, I was abused so I know all about it, how it works. And then it goes, did he put his tongue on there, did he wiggle his tongue? And then she'll hear he did it and he put his-, wiggled his tongue. See, she's w-, hearing the story and repeats and that's authentic to her. That's a fucking four-year-old.
p. 100
D: The only thing that's similar is the in-, actual contact. [The complainant] plunked down on me. That's it….It lasted for one second. There was no oral sex involved.
BOZZA: Did she say anything?
D: No, she actually went silent. She just dropped and like I pushed her off, 'cause, uh, you know, I was w-, woke up being smothered so it was kind of a shock a little….And then, uh-, but there I calm with her so she doesn't feel scared, or I don't yell and scream at her. But, uh, like she just laid there quiet and I said, who showed you that? Like I'm curious, you know, like positive. And, mommy right away. And it doesn't surprise me because to me, [J.L. is] a, a sex maniac….She wanted me to get her friend pregnant. She wanted to have a foursome. She had sex with our neighbour right in front of me….And she's in her 20s and she's a stripper and she has no morals.
p. 106
D: And she is-, and but I told you, she's been coerced. There's no doubt in my mind because I don't molest my kid….This happened only one time and it never happened again. It never happened before, it never happened again. There was other things that happened but they were just nothing to talk about. I mean, it was just, (demonstrates sound) . …You know what I mean? It's just normal. 'Cause she had told me she was playing with her brother's penis and then she grabbed me in the bathtub, but that was nothing. She was like two, three years old. You know what? So what? It's just normal.
BOZZA: Why was she in the bathtub with you?
D: She was taking a bath with me when she was young. When she got older, she took her bath by herself. When she got three-, when she started touching me...
BOZZA: Yeah.
D: ...then she was on, on her own…But, you know, to me, it's just curiosity. There's no sexual-, no sexuality with children...it's just curiosity. They're not turned on. They don't know what that is.
BOZZA: So i-, if she-, you know, like you said, she grabbed your penis in the bathtub and she said that she did this with her brother?
D: No, [J.L] told me that she was doing it to her brother and she thought it was hilarious, but she was doing it to me too, but she just was grabbing it and I was pushing her away. I was-, there was no event, there was nothing. There's no molesting going on, man. God, I'm so pissed off. You know, I'm pissed off, I'm hurt, I'm crushed. I just wanna die. The only thing keeping me alive is my kid right now. If something happened to her, goodbye…Because I failed. FACS failed, CAS failed, and you're only going by what-, the words you're hearing. And unfortunately, I know what we're dealing with, but FACS won't, won't deal with it at all.
BOZZA: ...five year olds don't-, they don't know about these kind of things.…..**
D: Don't you get it? She is bombarded by this story. As soon as I told her, she went to the teacher, to all the other parents, so they told all the other kids, and the principal, and then FACS, and then the police, and then you. Um, then the therapist. So this story has been going on forever. Don't you see? She's five years old, this is the story that she knows. But it's been put there. All she did was plunk herself on me. It got expanded by her mother, this moving your tongue. She was there for one fucking second, man. And she's making a child lie to get me. And the system is failing me right now. I've been telling you guys since the beginning she's accusing me of fucking my daughter at two years old. I knew it was not ever gonna end, I knew this was gonna happen, and she's fucking done a lot worse than th-, what she's accusing me of now. Licking her, her vagina.
Pp 108 - 110
Position of the Parties
59The Crown points to the manner in which the complainant disclosed the allegations as a mark of credibility and reliability: An initial utterance, a refusal to discuss it with the authorities, a re-enactment during a therapy session and a difficult video recorded interview with police. During this nine month period, there is a consistent account of the sexual abuse by the defendant. Counsel submits that this idea could not come naturally to a four year old; she experienced it in some way. The Crown argues that the defendant's version of events as set out in the statements as recorded by CD, Ms. Nicholls, and in the video record is incredible.
60Defence counsel acknowledges that the statement "daddy ate my patoon" is a sexual reference because of other evidence that "patoon" means vagina. However, this does not necessarily imply guilt; in the mind of a four year old, the statement could describe her act in sitting, naked, on her father's face while he slept – as asserted by the defendant. Defence counsel cautions that the statements attributed to the complainant and defendant by JL, CD, Ms. Ferguson, and Ms. Nicholls are not trustworthy accounts of what may have been said. The only reliable statements are the video recorded interviews with the complainant and defendant. Counsel submits there is no reason to doubt the defendant's assertion that the complainant was subjected to abuse and/or sexual images by others. The Defence claims that the complainant's mother influenced her daughter "to open up and talk" to the authorities and points to the defendant's statement that she had a sinister agenda in so doing.
Analysis
61The Defence is correct in characterizing this case as a contest between the complainant and defendant and that the video recorded statements by the two individuals are particularly important. Apart from the complainant, who I have found, adopted her video recorded statement, the witnesses called by the Crown, for the most part, are the conduit for the out of court statements of these two people. In these circumstances, it is appropriate to state the applicable legal framework.
62The Crown carries the burden of proving guilt beyond a reasonable doubt. This fundamental principle of law means that if the defendant has called evidence, there must be an acquittal: (i) where the testimony is believed, (ii) where the testimony is not believed, but leaves the trier of fact in reasonable doubt, (iii) where testimony is not believed and does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty: R. v. W.D. (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3D) 397 (S.C.C.).
63In this case, the Defence did not call evidence. However, the analysis remains the same because Crown evidence favourable to the defendant can, if believed, exonerate him or raise a doubt about guilt. In the present case, that evidence is the out of court statements by the defendant. In R. v. B.D., 2011 ONCA 51 (CanLII), [2011] O.J. No. 198, (Ont. C.A.) it was held that:
What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if - viewed in the context of all of the evidence – the conflicting evidence leaves them in a state of reasonable doubt as to the accused's guilt: Challice. In that event, they must acquit.
64The proper approach to the burden of proof is to consider all the evidence, especially in the case of "he said, she said". This point was made in R. v. Gostik, 1999 CanLII 3125 (ON CA), [1999] O.J. No. 2357 (Ont. C. A.):
…. As Rowles J.A. emphasized in R. v. R.W.B…..these issues are not to be determined in isolation. She said at p. 9:
Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility and reliability of the complainant's evidence be tested in the light of all of the other evidence presented.
65Where the complainant is a child, other considerations come into play. The Supreme Court of Canada noted in R. v. R.W., 1992 CanLII 56 (SCC), [1992] S.C.J. No. 56, cited the following passage with approval (at para 24):
.. it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that 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. I think his concern is well founded and his comments entirely appropriate.
66As indicated, a few days later, CD recorded what the defendant said to JL about the utterance and he was later interviewed by Ms. Nicholls (FACS). The statements attributed to the defendant by CD and Ms. Nicholls are essentially the same: The defendant pointed to serious instances of inappropriate sexual behaviour by his daughter and blames JL and others for it. Like JN, there is no concern about the credibility of these two witnesses. Reliability issues do not arise because what they attribute to the defendant is in general accord with what he told PC Bozza.
67Ms. Ferguson (FACS) described how the complainant, through words, gestures and drawings, alleged her father had licked her vagina while she was in his bed. There is no concern about Ms. Ferguson's veracity. However, her evidence about the child's re-enactment with puppets and dolls is subject to interpretation. Although I have concluded it meets the test of threshold reliability, I give this evidence little weight. However, there is nothing to suggest Ms. Ferguson is mistaken in recalling that the complainant said, "yuk, my dad did that to me" as she covered her vaginal area. Indeed, it would be surprising if she is mistaken in recording this simple and startling declaration. In this regard, I also have the child's drawing on the body template highlighting the vaginal area. This was done in response to Ms. Ferguson's question about what the complainant meant by the word, "patoon".
68The video recorded statements by the complainant and defendant do not come to me through the testimony of a third party. It is as direct as evidence in chief. The issues in play are different. The Crown argues the defendant is lying. The Defence claims the complainant has been brainwashed by her mother or has transferred to the defendant sexual behaviour experienced elsewhere.
69I accept that a four year old child could not have independently fabricated these allegations. Indeed, both the Crown and Defence – for different reasons – assert the child was involved in sexual activity. What that means is this: She was the victim of the abuse by one and/or more persons and/or she was exposed to images of the sexual acts and/or someone told her about such acts.
70The defendant concedes that his mouth touched his daughter's vagina. He claims this happened because she sat on his face while he was asleep and almost smothered him. He also says the young girl touched his penis, biting it on one occasion – again, while he slept. The defendant suggests others are to blame for this troubling behavior, including the mother and grandfather of the child. The language used by the defendant in describing JL is significant. He portrays a mentally unbalanced person who is depraved, vindictive, and violent. He leaves no doubt that she is a danger to their daughter and that others may also have abused and corrupted her.
71Against this astonishing background, what did the defendant do? Nothing. He did not remove her from the toxic environment in which she lived five days a week. He did not seek professional help for his daughter for the past abuse. He took no action to protect the child from future abuse. The defendant explained that he did not report his concerns to the authorities because, in the case of JL, he did not want "to accuse her" and, with respect to her father ("P."), because he did not want to get him into trouble. He did not explain his failure to expose other potential culprits he mentioned. The defendant's only response to this intolerable situation was to tell his daughter that "patoons" are not to be eaten and that she must not talk about such things. This does not begin to address the serious issues; on the contrary, the defendant encouraged his daughter to conceal the abuse. What this state of affairs obviously demanded is what JL did: Within days of the initial utterance by the child, she confronted the defendant and brought the matter to the attention of child protection officials and the police.
72The defendant's version of events cannot be believed. That he would display such wanton disregard for the welfare of his four year old daughter and not expose her abusers, including a mother he portrays as evil, is beyond comprehension. I am driven to the conclusion that the defendant's accusation that his daughter had or would be harmed by others is nothing more than an attempt to deflect attention from himself.
73I do not accept the defendant's narrative. It raises no doubts about the Crown case. These findings do not mean the Crown has met its burden of proof. That said, I now explain why I am convinced that the complainant's testimony is truthful and accurate.
74In all statements, the defendant acknowledged that there had been inappropriate sexual contact between him and his daughter. This is relevant to the assessment of the complainant's credibility and reliability. I am entitled to reject his innocent explanation for this and rely upon the statements in assessing the credibility of the complainant. See R. v, R.D., [2004] O.J. No. 2086 (Ont. C.A.) at paragraph 15.
75The complainant's video recorded interview with PC Sanders was played for her and she completed much of her trial testimony from a room adjacent to the courtroom. At her request, she was allowed into the courtroom during cross-examination. When she did so, she presented as inquisitive and secure. This is in sharp contrast to her demeanour when asked to review her interview with police. She obviously did not want to watch it and occasionally had to be re-directed to it. She expressed the hope that I would not be as frightened by it as she was. For reasons I explained earlier it is clear that she did watch the video and understood its import. At trial she adopted, as true, a statement in which she describes in words and gestures how the defendant, to use her words, "licked my private parts and ate it". She repeated this several times and reported that it occurred "on daddy's bed". She demonstrated with her body, how the defendant with his body, was "turning like a circle eating my patoon". In doing so, she pointed to her vagina to signify patoon and to her mouth and tongue to show what the defendant did. When asked how it felt, the complainant said, "It's ticklish".
76It is notable that the complainant did not easily offer this information to PC Sanders. She began to do so in response to a seemingly unrelated question. When asked if she had ever seen her brother's private parts, her reply was: "No…It's gross, he never licked (inaudible) private parts…only my daddy…only my daddy licked my private parts". The subsequent questions and answers are punctuated with resistance by the complainant to any further discussion and pleas to be reunited with her mother. The child became sufficiently distressed that PC Sanders ended the interview. It is also noteworthy that, although the officer was persistent she did not ask leading or otherwise inappropriate questions. The complainant's answers paint a clear and disturbing picture of a father performing cunnilingus on his daughter.
77The initial utterance by the complainant and the words and actions attributed to her by Ms. Ferguson are similar to the video recorded statement adopted in trial testimony. It is a basic rule of evidence that prior consistent statements are generally inadmissible. The reason is simple: The fact that a person has said the same thing before does not make it true or accurate. There are exceptions to this principle. Certain exceptions mean that each prior statement serves two purposes in my decision.
78The evidence in the present case begins with a spontaneous utterance by the complainant to her mother at the home of a neighbour. This can be significant. In R. v. Buck, [1999] O.J. No. 3523 (Ont. C.A.), it was held that:
7 In his reasons, the trial judge specifically inquired whether there was any "supportive evidence ... capable of inducing a rational belief that the [complainant] is telling the truth." In answer to his query, he first found support for the complainant's evidence in "the spontaneous flow" of her statement provided to the school nurse.
8 In our view, it was open to the trial judge to consider the manner in which the complainant had first disclosed the allegations of sexual impropriety in assessing the credibility of her testimony. Given the trial judge's specific reference to the spontaneity of the prior statement as opposed to any of its contents, we are not satisfied that he erred in considering the prior consistent statement in the prohibited manner, namely as a form of self-corroboration.
79"Daddy ate my patoon". I find this brief and sudden outburst to be a mark of truthfulness and affords another reason to be confident in the complainant's trial testimony. Can the same be said about the evidence of Ms. Ferguson with respect to the complainant's therapy session?
80The law with respect to prior consistent statements is discussed by Justice Paciocco in The Perils and Potential of Prior Consistent Statements: Let's Get it Right, (2013) 17 C.C.L.R. 181-215. He points to another exception that is relevant in this case; namely, prior consistent statements that are ruled to be admissible hearsay:
In sum, when prior consistent statements are proved as admissible hearsay evidence where the declarant offers the same testimony in court, it is not the "hearsay part" that actually adds weight to the scales. That hearsay claim is redundant to the claim made in the testimony. What adds weight, if anything, is the "declaration part" of the statement block. While there is no weight in the simple fact of repetition and no independent corroboration in repetition, the circumstances in which the hearsay statement was made — its indicia of reliability — can and should add weight to the correlative in-court testimony.
81Justice Paciocco concludes his paper as follows:
The law relating to prior consistent statements is complex. In R. v. Simpson at the Manitoba Court of Appeal, Seaton J.A. interpreted the law in simpler terms in a passage cited without critical comment when the Supreme Court of Canada dismissed the appeal. Seaton J.A. said:
There is no rule excluding previous consistent statements. They are rejected simply because they are valueless. If for some reason they become valuable they become admissible.
Conceiving of the law this way would save on having to determine whether black-letter fixed exceptions apply. The sole inquiry would be "is the prior consistent statement relevant in any way?" Provided judges do not put prior consistent statements to irrelevant use or treat such statements as corroboration, or rely upon the discreditable theory that repetition on its own enhances credibility, such a law would serve the requisite needs in a simpler, less encumbered, and arguably preferable way. Indeed, if the sole gateway to admission was relevance, even a failure to exclude irrelevant prior consistent statements would be a harmless outcome unless the trial judge was to rely upon such statements improperly in coming to a decision.
82I am of the view that the circumstances in which the statement at play therapy was made adds weight to the complainant's trial testimony. As indicated, I accept that the complainant said, "yuk, my dad did that to me" as she covered her vaginal area. The value of this admissible hearsay in assessing the child's credibility arises from the fact that it was an immediate reaction to a three minute movie entitled, "My Body Belongs to Me".
83The defendant has asserted that JL encouraged the complainant to implicate him in the sexual abuse of their daughter. As noted, I do not accept the defendant's version of events. However, there is other evidence that JL may have influenced the complainant. It is necessary, therefore, to explain why I am not troubled by this.
84As a witness, JL presented as confused and greatly stressed. When pressed about whether she had discussed the allegations with her daughter after being told by police not to do so, she answered, "not that I recall". This answer suggests to me that she did do so. Moreover, JN testified that JL admitted as much. The question is the extent to which she did and, more important, if it was sinister in nature. I am confident that the communication reflected nothing more than the actions of a concerned parent searching for answers.
85The initial utterance – "daddy ate my patoon" – has significance apart from its impact on the complainant's credibility. There is no dispute about the statement means. This sudden outburst, in the presence of a third party, at a neighbour's home, has value as a prior consistent statement in determining if JL, or anybody else, for that matter, improperly persuaded the complainant to say things about the defendant that is not true or accurate. I also consider it significant that the complainant did not repeat the statement during several months of play therapy until she was shown film clip about good and bad touching. The circumstances in which these two prior statements were made undermines the assertion the complainant's trial testimony was tainted by external influences.
Result
86Like the trial of most sexual offence allegations, in this one there are no independent witnesses to the events in question. In addition, there is no physical or forensic evidence to support the charges. Moreover, the Crown case is anchored in the testimony of a six year old girl about events that occurred when she was younger. These factors require particular caution before making a finding of guilt. I have kept this in mind in arriving at this verdict.
87I find the complainant's evidence to be a candid and compelling account of sexual abuse at the hands of her father. In itself, it meets the high threshold of proof beyond a reasonable doubt. I reject the defendant's version of events, as revealed in several out of court statements. There is nothing to support his suggestion that others are responsible or that his daughter's memory was experienced elsewhere and transferred by her to him. Moreover, I am satisfied JL did not influence her daughter to falsely implicate the defendant.
88I find the defendant guilty of sexual assault and sexual interference.
Released: July 6, 2018
Signed: Justice J. De Filippis
