ONTARIO COURT OF JUSTICE
NEWMARKET
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
J L-B
JUDGMENT
Evidence and Submissions Heard: December 14,15, 2020.
Delivered: January 27, 2021.
Mr. Jacob Wilson counsel for the Crown
Mr. Raymond Boggs counsel for the defendant
KENKEL J.:
Introduction
1J L-B is charged with two counts of sexual assault in relation to his niece contrary to s 271 of the Criminal Code. The credibility of the complainant’s evidence was the central issue at trial.
2The Crown’s opening and the defence closing both described this as a case of “recovered memory” but it isn’t, at least not in the sense that term was originally used to refer to discredited techniques such as hypnosis to “recover” memories of which the witness was otherwise unaware. The complainant in this case referred to a counselling exercise which caused her to think about something she hadn’t thought about for a few years. That led to disclosure of the two allegations before the court. The complainant said she never forgot about the incidents, but she tried not to think of them. That evidence simply describes typical recollection.
The Evidence
3The complainant is now 15. She’s the niece of the accused by marriage. From the time she was 8 to the age of 13 she lived in a house with her family and other relatives. Her mother’s sister, her uncle C L-B, and her younger cousin lived in the basement. The complainant shared a room with her sister on the top floor, with her grandmother’s room beside her and her mother’s room directly across the hall.
4In 2018 she was taking part in a special program at school for children with depression and anxiety. As part of that program they did an exercise with a popsicle. She was asked to recall a memory relating to a popsicle. She couldn’t think of anything, but then remembered a time when her uncle invited her down to the basement. She said he told her to sit on his lap while she ate the popsicle. Nothing further happened and she didn’t think anything of it at the time. She estimates that she was probably 10. She didn’t recall anyone else being in the basement, but she thought that the other family members were probably upstairs on the next floor.
5On another occasion the complainant and her sister went downstairs to say good night to the family. The complainant testified that her cousin was on his bed and she thinks her aunt was in the shower. She said good night, but she says her uncle said “No don’t leave me”. He pulled her toward him and kissed her on the lips twice. He touched her legs and lower back. She then went right upstairs and went to sleep. She said she didn’t tell anyone about the kisses because her uncle told her not to talk to anyone about it. She added he also grabbed her arm and told her he would hurt her. She thinks she was 11 at the time. This incident is the subject of the first charge of sexual assault.
6She testified that there may have been another unwanted kiss, but it’s not a clear memory and it’s not something that she remembers consistently.
7Another time she recalled being downstairs with her cousin and uncle when her sister wasn’t there. She thinks it was either early morning or late at night because she was wearing pajamas. She was not sure where the other family members were, but she believes they were upstairs. She was playing trains with her cousin which was his favourite game. She testified that her uncle came into the room and asked her to lie down on the bed as she played. He bent over her facing towards his son. She continued playing with her cousin, but she was scared. Her uncle then unzipped his pants and started to play with himself. She said he had his hand on his penis and his other hand on her lower back. He put his hand under her pajama pants. She wasn’t sure exactly what he was doing as she was playing with her cousin and she wasn’t looking backwards at her uncle. With respect to the hand on her she described several actions but later said in-chief, “I honestly don’t know what he was doing” likely referring to uncertainty about his purpose in touching her and not about the fact of contact. After a few minutes he gave her a $5 bill and told her not to tell anyone. She believed that happened when she was 11. That incident is the subject of the second sexual assault count.
8At trial she remembered more touching than described in her initial video statement. She testified in-chief that the accused touched her hips area, all down her back to her buttocks and legs. He was touching her the whole time. There wasn’t a moment when he didn’t touch her. She didn’t think that her cousin noticed any of this even though he was there on the bed playing with her.
9In cross-examination the complainant agreed that the door to the basement was not locked and one could see through the door to the first landing. Everyone in the family would go downstairs either to visit or to go to the freezer which was there. There was little privacy in that area.
10About a year or so before her statement to the police, the complainant received messages through an app on her IPod that made her uncomfortable. She believed the messages were coming from her Uncle. By that age (14) she was very aware of the context. She said the person sending the texts said things like, “I miss you”, “Come say goodnight” and “age is just a number”. She showed some of the messages to her mother and then deleted them all. She believes the messages came from her uncle because her aunt told her she gave him her contact number. When she pointed out to the sender that he had a wife and child that person responded saying something to the effect that that was not his wife or family.
11The complainant’s mother testified that she was shown a few of those messages. She never saw her daughter exchanges messages through that app with her uncle J L-B. One day her daughter was upset and showed her inappropriate messages she thought were sent by her Uncle. The mother said she looked at the app and recognized part of what she thought was the uncle’s phone number. She saw words such as “I love you”, “please come downstairs”. She was shocked and didn’t look at the rest. She told her daughter to delete them. She saw her daughter delete the texts. Later the IPod was lost in a park. The mother did not know the uncle’s full phone number and she didn’t ever save his number on her phone as they lived in the same house. She believed the number started with 999 and those were the numbers she saw on the app.
12In cross-examination, she agreed that seeing the messages on the app made her think that her daughter was in danger. However, she didn’t confront the uncle and she didn’t tell him to move out of the house. She didn’t tell her sister about the messages or her concerns. She explained that she didn’t tell anyone else because she didn’t think to do so at the time.
13The Crown tendered the statement of Mr. L-B to police on consent. Mr. L-B told police that at the time in question he was working, but his wife was a stay-at-home mother with their young son. He believed he got along with both of his nieces and he saw himself as a father figure as their mother is divorced and they don’t see their father often. When their mother struggled with depression, he tried to help his nieces out by including them in family trips. The girls otherwise didn’t spend much time in the basement area as his son is much younger and they would tire quickly of playing with him.
14The officer asked L-B to give a general definition of sexual assault and the accused referred to his workplace training – any inappropriate touching, kissing or advances. He agreed that when his nieces were younger he would show them affections such as hugs, but at the time in question his work schedule was split shifts and he didn’t see them often.
15In response to a general question, Mr. L-B told the police that he never touched anyone in an inappropriate sexual manner. About half an hour into the interview the police revealed the allegations involving his niece. L-B responded, “I’m totally surprised”. His appearance on the video was consistent with that statement. He denied the allegations. When asked about the app messages he told police he didn’t think he had a cellphone number for the complainant. He was told the police could search his phone and her device and find any past messages even if they were deleted. He then said his wife may have used his phone when they were in New York City to text the complainant’s sister or the complainant about shoe sizes as they were buying shoes for them. The police might find messages about that. L-B otherwise consistently denied the allegations and said he couldn’t even picture or imagine what the complainant described.
Submissions of Counsel
16The Crown submitted that the alleged kissing of the complainant on the lips in the circumstances described amounts to sexual assault. The second incident described was a more intrusive sexual assault. The app messages the complainant later received as seen in part by her mother are consistent with her account of the two incidents. The Crown submitted that the evidence of the other acts not charged are admissible as showing the accused’s interest in his niece and the credibility of her testimony in that regard.
17The Crown pointed to a number of alleged inconsistencies in J L-B’s evidence involving whether he acknowledged the girls would sometimes play trains in the basement, and whether he gave the complainant and her sister kisses on the cheek when they were little. The Crown submitted the accused was inconsistent and evasive about whether he might have had a contact number for the complainant. His denials were not credible as they came couched in excuses – maybe something happened with her father?
18The Crown submitted that the letter written by the accused at the direction of the police was highly significant. It should be viewed as an “apology” and therefore an admission against interest even though he otherwise denied the allegations.
19The Crown submitted that the complainant was a credible witness and there is no evidence of collusion. The immediate presence of her young cousin in her description of the second incident is “highly unlikely” so not a detail one would include unless it happened. The Crown submitted that the accused should be found guilty on both counts.
20The defence did not contest that the evidence beyond the two counts before the court as referred to by the Crown was admissible for the purpose stated.
21The defence started with a point emphasized by the officer to the accused in the statement. The police could easily obtain access to the accused’s phone and find records of past messages even if deleted. There’s no such evidence and the defence submitted that the court should draw an adverse inference in that regard. The fact that the complainant and her mother deleted the supposed evidence shows the story is concocted.
22The defence submitted that the description of the second incident committed in the immediate presence of the 6-year-old son is not credible. The court should draw an adverse inference from the failure of the Crown to call the son as a witness. The defence submitted that the unlikely combination of details points to invention. The group exercise at school started with a popsicle and ended up in a story that got worse with the telling. Important aggravating details about the second incident were only added at trial.
23The accused’s statement was a consistent denial of the allegations throughout, despite police tactics used to pressure him to confess. The defence submitted that the complainant’s evidence was not credible and both charges should be dismissed.
Analysis
24The complainant was an intelligent and forthright witness. She was responsive to questions put by both counsel. It was helpful that she identified details that she didn’t remember and memories that weren’t clear or consistent. There’s no evidence of collusion and I accept that she did her best to tell the truth about the events as she remembered them.
25As discussed in the Introduction above, this is not a case of “repressed memory”. The complainant described an event that triggered a memory of something that she always knew happened, but that she hadn’t thought of for a while. That description of memory retrieval is common. For example, hearing a song may trigger a recollection of a past summer or something that you hadn’t thought of in a while, but the memory was always there. The memory is familiar, not some new discovery or revelation. I disagree with the defence that there’s anything in the path to disclosure as described by the complainant that could reasonably detract from her evidence, particularly given her age.
26For all of these reasons the complainant’s evidence was compelling, however when I consider the whole of the evidence, I find that a reasonable doubt remains on both counts. That’s no reflection on the testimony of the complainant, or anything she did. It is simply a measure of the strict standard which must be applied in all criminal cases.
27When asked on her video statement to police if it was all true she said “At least I know it is the truth from my perspective”. That’s a long way to say yes. Even making allowance for her age at the time of the statement, the defence is correct that the answer seems to imply some level of internal uncertainty. At trial the complainant stated that the basic things she said happened were true. She didn’t now remember many of the surrounding details including some of the details referred to in her statement.
28The Crown is correct that the second incident describes an event that appears “highly unlikely”. The complainant described a sexual assault with her uncle fully exposed, while she played with his 6-year-old son who was directly in front of him. She described the son as having an attention deficit which may well apply to any 6-year-old, but it doesn’t make sense that a father would choose to expose himself and commit a sexual assault directly in front of his son with detection almost certain.
29I agree with the Crown that there’s nothing logical about sexual assault against a young person to begin with, so that standard can’t be applied to simply dismiss any evidence that seems unlikely. I also agree that no adverse inference should be drawn from the sensible decision not to involve the child as a witness. However, the testimony of the complainant must be weighed in the context of the accused’s statements admitted as evidence as to his work schedule and his limited contact overall with both of his nieces. His wife worked at home and there’s evidence that there were generally multiple people in that house. The basement area lacked privacy. While the circumstances don’t preclude the possibility of either offence having happened, they are also consistent with the evidence of J L-B’s denial of the allegations.
30The complainant’s description of the second incident did get worse at trial. The Crown may be correct that the further aggravating details were simply the product of the particular questions asked in examination-in-chief, but given the complainant’s understandable uncertainty about so many of the surrounding details, changes in the central allegation which was said to be a fixed memory must weigh against the reliability and consistency of that recollection. The complainant testified that she had little recollection of other events outside the three incidents she described.
31There was also some internal inconsistency in the description of the second event where the complainant testified at times that she was fully engaged with her cousin playing trains during the event, facing and looking forward, not looking back, while at other times she described things that only could have been seen if she was looking backwards.
32I reject the suggestion of collusion in relation to the texts or the complaints as without foundation. The was no reason for the complainant to fabricate that evidence with all of the difficult features described. If the two witnesses were colluding on that point, her mother would not have given such brief and limited testimony. The concern with the text messages is not collusion but the lack of details that detracts from the weight that can be given to that testimony and the inferences that can be drawn. The evidence shows that the complainant had an app on her IPod which was able to send and receive messages, but it’s not plain how. It’s not plain that it would work like a cellphone text app, capturing messages in that fashion and displaying numbers. It’s not plain the accused ever knew the co-ordinates for his niece’s app. His speculation about his wife asking about shoe sizes was consistent with his attempts throughout the statement to be co-operative with the officer, and to think of any possible contact as directed. There’s nothing in his evidence on this point that reasonably detracts from his position vis-à-vis the allegations.
33Some of the messages described were consistent with being sent by her uncle, but some of the messages weren’t. It’s not the fault of the complainant, but there is no actual record of exactly what was said. Even the complainant’s mother had a very limited recollection of only portions of text and numbers. The complainant’s mother’s lack of reaction at the time to what she read does not seem consistent with the serious safety concern for her daughter she described. That may be explained by family dynamics within a large household, but it’s another circumstance that must be considered when assessing whether the link with the accused was as certain at the time as it is said to be now after other allegations led to charges.
34Overall, I find there’s some uncertainty about what exactly was said on the IPod app. It’s not been proved that the messages could only be attributable to the accused. I disagree with the defence that the court should draw an adverse inference from the failure of the police to seize and analyze the accused’s phone or to obtain his text messaging records via production order. It’s enough to note that if there were other evidence that could have answered the uncertainties on this point it was not tendered at trial.
35The Crown took the view that the letter the accused wrote to the complainant at the request of the police was highly significant and amounted to an admission of the offences. Considering the context of the interview and what was said in the letter, I find no evidence of a confession or admission and nothing that lends support to the Crown’s case. The accused was pressured throughout the interview in various ways to admit the offences and he consistently and politely denied the allegations. As a final tactic, the police had him write a letter of apology to his niece. He was co-operative throughout, so he told them he couldn’t even imagine what they were accusing him of. He wrote a letter saying he was sorry if he “hurt her feelings” but he had “no idea about this”, he “didn’t know about this” until the police officer told him. He struggled to guess what caused her to complain to the police and apologized if there was anything he did that caused her offence, but he specifically denied the allegations. The fact that he expressed sympathy for his niece is far from a confession.
36Despite the close interrogation, Mr. L-B was calm, forthright and seemed genuinely puzzled by the allegations. His reference to the complainant having issues with her father came in response to the police asking why the complainant was making these allegations. L-B did not say the father was responsible. His answers were neither calculated nor evasive. Even when pressured about the inevitable discovery of any messages that would be on his phone, L-B said the only thing they might find would relate to shoe sizes during a trip to New York.
37Both parties agreed that the fact that the accused’s statement to the police was not under oath and not subject to cross-examination at trial did not much affect the weight to be given to that evidence in this case. The Crown very fairly pointed out that Mr. L-B was exposed to tactics and pressures in the context of the interview which would never have been permitted at a trial. His denial was challenged at length by the officers. I agree with the Crown that the lack of an oath or cross-examination does not significantly detract from the potential weight to be given to that evidence in this case.
38The Crown applied to have the evidence on the two counts and the evidence of other incidents not charged be considered when assessing the credibility of the witness overall. That works both ways. Given the concerns in relation to the second central count, and the accused’s evidence as tendered by the Crown, while I do not accept Mr. L-B’s evidence as true to the exclusion of other evidence, I find that combined with other evidence at trial, a reasonable doubt remains on both counts.
Conclusion
39I do not disbelieve the complainant. The finding that a reasonable doubt remains on both counts is not an endorsement of the defendant’s evidence as true. The burden is on the Crown to prove both charges beyond a reasonable doubt and I find the evidence in this case does not meet that standard. Both charges are dismissed.
Delivered: 27 January, 2021.
Justice Joseph F. Kenkel