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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2023 05 19 COURT FILE No.: Elliot Lake 0121-998-21-13301217-00
BETWEEN:
HIS MAJESTY THE KING
— AND —
P.H.
Before Justice Leonard Kim Heard on October 24, 31, December 14, 15, 2022, and January 30, 2023 Reasons for Judgment released on May 19, 2023
Counsel for the Crown: Mr. S. Woods Counsel for the accused P.H.: Mr. John S. Hooper
Kim J.:
General Overview
[1] The accused, P.H., stands charged that between January 1, 2011, to December 31, 2014, he committed the offences of sexual interference and sexual assault upon the complainant, M.H. The accused is the biological father of M.H. who was born on […], 2009. Her biological mother is M.C. who testified that the three of them lived together in a townhouse on [street name removed] in Elliot Lake which included the birth of M.H. to the point of separation on December 13, 2013.
[2] At that point the accused moved out and M.H. and her mother continued to reside at the townhouse on [street name removed] in Elliot Lake for about a year when they moved to Sudbury. Even after this move, M.H. continued to see her father roughly every other weekend. The allegations focus on the time M.H. spent with her father and mother when she was approximately three to four years of age and were brought to the attention of the police when she decided to come forward in the year 2021.
[3] The Crown called the complainant, M.H. and her mother, M.C. The defence called P.H. and his current girlfriend, M.D., as witnesses. Exhibits at trial consisted of two text messages filed by the defence of conversations between the accused and M.C. The third exhibit was a criminal record of the accused, filed by the Crown.
[4] The main issues were focused on the credibility and reliability of the witnesses, that required each witness to recall events dating back several years in light of the historical nature of these allegations.
Testimonial Aids – CCTV and Support Person
[5] The Crown first called the complainant, M.H., as its first witness. Prior to doing so, Mr. Woods indicated to the Court that on consent, the child would be testifying by CCTV and with the assistance of a support person.
The Evidence of the Complainant M.H.
[6] The complainant’s evidence in chief consisted of five distinct events that form the basis of these allegations. At the outset of the complainant’s evidence, Mr. Hooper on behalf of the defence conceded identity. M.H. testified that she is in grade 8 and 13 years old today. She explained that up until the age of approximately three years old, she lived with her dad and mother on [street name removed] in Elliot Lake in a townhouse. Due to a house fire, they then moved to an apartment within the same town and later returned to the townhouse. She then explained that at approximately age four or five, she moved away to Sudbury for a few years but then returned to Elliot Lake when she was almost 10 years old.
[7] For the purposes of organization and consistency, I am going to summarize the evidence in the same order introduced by the Crown in chief and cross examined by the defence with respect to the complainant.
Incident #1 – Elliot Lake Apartment
[8] M.H. testified that she was approximately two to four years old at the time of this incident. She explained that she lived in an apartment with the accused and her mother in Elliot Lake. On this particular occasion, she alleges that she was in the washroom waiting for one of her parents to get her ready to take a shower.
[9] Prior to having a shower, she explained that her father entered the bathroom and pushed her into the wall, put his hand over her mouth and touched her vagina with his finger. When asked by the Crown, exactly where on her vagina she was touched, her response was “the whole thing”. Upon further questioning, the complainant clarified that the accused finger was not inside her vagina but that it hurt when he touched her.
[10] She does not remember how long this touching took place, but she does remember crying throughout this entire experience. From her recollection, her mother was not there and she could not remember where she was. M.H. was insistent that nobody else was in the apartment.
[11] She was not sure what time of day this alleged sexual touching took place nor does she recall what she was wearing or if she was naked. She has no memory of what her father was wearing at the time.
[12] She went on to explain that she felt something digging into her back and surmised that it might have been a toilet paper roll because she remembers being pushed up against the wall by her father and him holding her there while he touched her vagina. M.H. explained that she believes this happened before her shower as she did not recall if the water was running.
[13] During cross-examination, Mr. Hooper challenged M.H.’s recollection that she was going to take a shower at the time of this alleged incident. M.H. expanded on her statement to police and explained that when her mother gave her a shower, her mother would help her wash her hair and body, while her father, would in her words, “kind of sit there and watch me”, while she washed herself. She elaborated and explained that her father did not help her as much as her mother during these showers.
[14] When pressed by Mr. Hooper, M.H. could not say how long the touching took place at the apartment, but she did recall that her father used one hand to touch her vagina. He also allegedly covered her mouth and then pushed and held her against the wall in the bathroom.
[15] She also agreed that she was unable to scream out and that the sexual touching was limited to the outside of her vagina.
[16] Through further cross-examination, she told Mr. Hooper twice that there was no penetration by the accused’s hand or finger and that her understanding of a vagina at the time was limited to urination and nothing more.
Incident #2 – Townhouse at Elliot Lake Bath Time
[17] The complainant also explained that she was touched multiple times while living in a townhouse with the accused and her mother in Elliot Lake. On one particular occasion, M.H. recalls that the bath water was running, and she was already undressed ready to take a bath. She testified that her father, the accused came into the bathroom to help her while she was alone. She explained to the Court that the accused touched her in the same way as he did when they lived in the apartment in Elliot Lake.
[18] She does not remember what P.H. was wearing however, she did recall that she was already naked when he entered the bathroom.
[19] She explained that P.H. touched her outside her vagina with his hand, but she doesn't recall how many fingers he used. What she does remember is that she told her father to stop and that when he touched her, that caused her pain.
[20] She does not recall if she cried or shouted during this incident and doesn't recall where she was located within the washroom. She denied remembering any further details other than entering the bathtub after he touched her.
[21] She remembers that this happened when they lived at the townhouse in Elliot Lake and that she doesn’t know how old she was. Upon further questioning from the Crown, she assumed that she was three or four years old. She also thinks that this particular incident of sexual touching happened after the house fire but a few years before they moved away to Sudbury because she does not recall the walls being re-painted in the bathroom.
[22] The complainant candidly admitted to the Court that in her mind, the incidents are not chronologically in order as explained in her testimony.
[23] During cross-examination, M.H. corrected Mr. Hooper and expressed that she does not think that she was seated at the end of the tub but was standing next to the tub as the water was running.
[24] She agreed with defence counsel that the accused’s finger went inside her, and she started to scream, and he covered her mouth. When further questioned about one finger being inserted into her vagina by the accused, M.H. corrected Mr. Hooper and indicated that she had previously indicated that she was not sure how many fingers.
[25] She agreed that her father had inserted his fingers inside her vagina until it could not go any further, and that she cried and was in pain because his finger scratched the inside of her vagina. When asked by Mr. Hooper in a pointed manner, whether she had a specific memory of pain in her vagina because the accused had scratched the inside of her vagina, M.H. stated, “yes.”
[26] She elaborated that she squirmed and attempted to run away from him and re-affirmed that after each of these incidents, he told her not to tell anyone.
Evidence of Discreditable Conduct
[27] Portions of the evidence that were elicited from M.H. falls within the category of discreditable conduct, or what we sometimes refer to as bad character evidence. Evidence of this nature suggests that the accused is the type of person likely to commit the offence as charged and nothing more. This is a prohibited inference. In other words, the Court is prohibited from inferring that the accused may be guilty because they are the sort of person likely to commit the offence. [1]
[28] The Crown is not permitted to call general bad character evidence. This evidence is presumptively inadmissible. If the proposed evidence is discreditable to the accused, the onus is on the prosecution to satisfy the court that the probative value of the evidence outweighs its prejudicial effect. [2] Part of this weighing requires me to consider the risk of moral prejudice and reasoning prejudice that would result if the proposed evidence were to be admitted in measuring it against the probative value. [3]
Incident #3 – Townhouse Living Room (Masturbation near the Play-Doh Table)
[29] The accused is facing one count of sexual interference and one count of sexual assault. He is not facing a charge of committing an indecent act on the Information before me. I am of the view that incident #3, where it is alleged that the accused masturbated in the presence of the complainant while she stood at her Play-Doh table constitutes discreditable conduct.
[30] However, this evidence was not the subject of a voir dire or evidentiary ruling. There were no submissions made with respect to the admissibility of any evidence that would meet the definition of discreditable conduct in relation to P.H. The Court has the responsibility to ensure at this stage of adjudication that evidence that would not otherwise be admissible is not considered in determining the guilt or innocence of the accused.
[31] For the purposes of assessing the credibility and reliability of the accused and in determining whether he committed the offences as charged, I am explicitly disabusing my mind of the events contained within Incident #3. However, I am mindful that defence counsel referred to this incident in attacking M.H.’s reliability by arguing that she would not have been able to appreciate the significance of what was happening or perceive this to be disgusting, as she described.
[32] It is for this limited purpose that I will consider the evidence of the alleged masturbation in the living room of the townhouse in the presence of M.H. when she was three to four years old. I am specifically not considering this evidence as probative in any way in my assessment of whether the accused was more likely to have committed the offences or is any less credible or reliable as a result.
[33] The third incident recalled by the complainant is alleged to have taken place while she lived at the townhouse in Elliot Lake with the accused and her mother. She testified that she was playing at her Play-Doh table which was located along the wall between the living room and the dining room table. The accused was seated on a couch along a different wall that was located across from the stairs.
[34] To the best of her recollection, the accused was approximately six feet away from the Play-Doh table and the couch was a light beige coloured shade. She explained twice in her testimony that while she was playing at the table, she looked back and saw P.H. masturbating while he was seated on the couch.
[35] When questioned by the Crown what she meant by this, she explained that she saw her father seated on the couch masturbating or stroking his penis while his pants were half off, approximately around his knees. She looked at her father while this was happening for a few seconds and then looked away and went back to what she was doing which was playing with at the table.
[36] She explained that the Play-Doh table and the couch were on different walls and that he was seated behind her while she was facing towards the door. In her estimation, she thinks that she was probably between the age of three or four because they had not yet moved away from that townhouse or to Sudbury.
[37] M.H. thinks that this Play-Doh incident happened probably after the apartment incident, which was the first incident she described. She believes the townhouse incident happened before this Play-Doh incident. This is the order that she remembers.
[38] She explained that she saw her father’s penis and that it was erect but that he did not ejaculate. No one else was present in the townhouse at the time this happened. She also testified that the accused told her not to tell her mother when she looked back at her father as he stroked his penis while he was seated on the couch.
[39] As a general comment, M.H. expressed that in all of these incidents of a sexual nature involving the accused, he always told her not to tell her mother or anybody.
[40] Under cross-examination, when her father was masturbating on the couch, M.H. admitted to having looked behind herself for “a quick second” at her father and then looked back.
[41] At the age of three, the complainant’s understanding of a penis was limited to urination and nothing more. Defence counsel pressed M.H. as to how she would know that masturbation was wrong at such a young age.
[42] She admitted that she told police that she was “grossed out” by this incident but Mr. Hooper challenged M.H.’s ability to understand at the age of three what being “grossed out” meant and how she appreciated that the act of masturbation was wrong.
[43] M.H. conceded to being confused and not understanding what he was doing at the time, but that at the same time, knew that it was wrong to be naked “in front of everybody.”
[44] M.H. admitted during cross-examination that it was possible that at the time this incident happened, she did not know that it was wrong.
Incident #4 – Townhouse Elliot Lake (Shower)
[45] The fourth alleged incident as expressed by the complainant also took place at the townhouse in Elliot Lake. She explained to the Court that while she was waiting for someone to help her take a shower, her father came into the washroom while she was already undressed. He proceeded to place his hand over her mouth told her to be quiet while he touched her vagina.
[46] M.H. explained that she was in the washroom waiting for someone to turn on the water and get the water running for her shower. In her mind, she expected the accused to come in the bathroom and she recalls standing outside the bathtub when this happened.
[47] She went on to elaborate that the accused touched her inside her vagina with his finger and that she doesn't recall the duration of this incident. She does not know how deep he penetrated her vagina with his finger. According to M.H., she was crying, and she tried to run away but the accused grabbed her by her hair while standing behind her. She further recalls that she attempted to run towards the door but that he grabbed her by her hair and pulled her back.
[48] She does not remember if anyone else was home, but she believes she was between the ages of three and four because they had not yet moved away and were still living at the townhouse. She does not recall what the accused was wearing but that he was clothed. He told her to be quiet so no one would hear and told her not to tell her mother.
[49] During cross-examination, M.H. admitted that the accused grabbed her shoulder and pulled her around and began touching her on the outside of her vagina.
[50] When asked by Mr. Hooper whether the accused attempted to touch her on the inside of her vagina, M.H. responded, “I don’t think so.”
[51] She elaborated during cross-examination, that P.H. did not touch inside her vagina because he had learned not to, because of her screaming and because he did not want anyone to know.
Incident #5 – Townhouse Bedroom
[52] M.H. explained that she was in her mother and father’s bedroom on their shared bed and admitted that she does not remember much about this particular incident. However, she was able to recollect when her father came in and was over top of her, he placed his hands on her chest and touched her on the outside of her vagina.
[53] She remembers that she was wearing a blue shirt but doesn’t recall what she was wearing on the bottom. She also stated that she didn’t remember what she was doing in the moments leading up to this incident but indicated that she was possibly watching television while she was in her parents’ bedroom.
[54] His head was on her chest while leaning over top of her when he touched her vagina while she was lying down on her back on the bed.
[55] She believes that he touched her vagina on the inside of her clothes and that no one else was in the home when this occurred. She also recalls her father telling her not to tell her mother and that she thinks he might have been mumbling something, but she doesn’t remember.
[56] During cross-examination, M.H. indicated that she does not remember what show she was watching on television or what clothing she was wearing on her bottom. She admitted that it is possible that she was wearing a different coloured shirt other than a blue one.
[57] Although M.H. told the officer in her statement that the accused pulled her pants down, she does not recall this to be the case, nor does she recall stating this to the officer.
[58] She affirmed the accused held her down on her chest and that she attempted to get up and he pushed her back down. She recalls at this point, that she started to cry because in her words, “all of it hurt.” M.H. confirmed that there was no penetration, and he touched the outside of her vagina.
[59] She said that even though there was no penetration, and she was touched on the outside of her vagina, it still hurt because the accused’s hands were rough. She admitted that she has a memory of it hurting when he touched her.
[60] M.H. admitted during cross-examination that it is possible that there could be some blending of facts intermingled amongst the multiple allegations she has described and that her memory is not 100% accurate in the way she described.
Disclosure to Police by the Complainant
[61] M.H. testified that she did not tell her mother or anyone else about these incidents until she gave a statement to police approximately a year prior to her testimony in October 2022.
[62] She explained that this was “a lot to keep in” and decided to come forward to tell someone to prevent the accused from “getting away with it”. When asked by the Crown why she did not come forward at the time these incidents occurred, M.H. expressed that she did not appreciate what was happening to her until she was older. At an older age, when she did appreciate the nature of what transpired, she did not want anyone to get mad at her.
The Complainant’s Relationship with the Accused
[63] M.H. eventually moved to Sudbury with her mother and her stepfather. During this period of time, she continued to have visits with the accused every second weekend at her grandfather’s home in Elliot Lake. She did not reside with her father at any subsequent point in time.
[64] These visits continued after she moved back to Elliot Lake from Sudbury.
The Work Schedule of the Complainant’s Mother
[65] The complainant explained that her mother was often out of the home working two jobs during the ages of three and four when these incidents are alleged to have taken place. The accused was not employed and at home alone with the complainant on a regular basis when she did not attend day care or school.
Amplifying the Memory of the Complainant
[66] The complainant conceded that her ability to understand events and communicate those events were not at the same level at the age of three or four as it is today. She indicated that she was toilet-trained at the age of three or four and that she recalls some details of events at this age such as birthday parties but to a limited degree.
[67] Mr. Hooper attempted to challenge her reliability of the location of birthday parties and other specific details of these parties. The complainant admitted that she could not recall many details from her birthday parties and admitted that she might have mixed up events regarding these parties around this age.
[68] The significance of her memory of a birthday party is that in her mind, the first time she was sexually assaulted occurred “a little while after” a birthday party.
[69] M.H. explained during cross-examination that at the age of three, the extent of her understanding of her vagina was limited to urination and nothing more.
[70] She remembers being alone with the accused at this age on a frequent basis prior to the intervention of the Children’s Aid Society (“CAS”). Her belief was corroborated by the testimony of M.C. who verified that M.H. was home alone with the accused on a regular basis at the age of three to four years old. The involvement of the CAS for concerns of physical abuse was also substantiated by M.C.
[71] M.H. went on to elaborate that at the time, she was unaware that her mother worked two jobs, but this was something that she had come to learn today. Mr. Hooper characterized this example as a “blended memory” and the complainant agreed.
[72] Another example of a “blended memory” was her recollection of her mother coming home throughout the day on her break when she was working two jobs. Mr. Hooper challenged the source of this memory. He asserted that M.H. would have required an advanced understanding of these events for a child aged three to four years of age to know why her mother was absent and for how long.
[73] According to the defence, this memory is a combination of present-day knowledge and her memories as a three-year-old. The complainant admitted to this in fact being the case.
[74] M.H. maintains that she would have understood the concept of times of day at the age of three and that she went to day care between the ages of one to four and was dropped off in the mornings and was picked up in the afternoon.
The Existence of Brief Flashbacks
[75] M.H. testified that she experiences brief flashbacks regarding these events dating back to when she was aged three or four. She described this memory as “vivid” with respect to the allegations and felt that the level of detail she provided in her statement to police was roughly equal to the degree of detail provide to this court.
CAS Involvement Due to Physical Abuse
[76] According to M.H., the CAS became involved in her life due to concerns of physical abuse at the hands of her father. In her estimation, their involvement began when she was approximately two years old, which consisted of multiple events while she lived at the townhouse and apartment in Elliot Lake prior to moving to Sudbury. She believes that her mother was a witness to this physical abuse that resulted in the accused taking anger management to the best of her knowledge.
[77] When pressed by Mr. Hooper as to how she knew that her father took anger management, M.H. explained that she understood this to be the case at around the age of six when her mother told her. She also recalls not being permitted to see her father for some time.
M.H.’s Prior Discussions with her Mother Regarding the Allegations
[78] Since the age of six, M.H. explained that she has spoken to her mother about the physical abuse she suffered at the hands of the accused on at least five occasions. She admitted that this has been a topic of regular conversation with her mother over the years.
[79] With respect to the sexual assault allegations before the court, M.H. admitted to discussing these events in a general way with her mother just prior to coming forward to the police and providing a statement in July of 2021.
[80] Since July 2021, she testified that she has spoken to her mother about the sexual assault allegations on three occasions in a general sense.
[81] When asked by Mr. Hooper whether these discussions might have influenced her memory of the allegations, M.H. insisted that there was no influence whatsoever because they did not get into the details during those prior discussions. Mr. Hooper accepted this answer and did not challenge M.H. on her response.
[82] During cross-examination, Mr. Hooper challenged M.H.’s recollection that she was going to take a shower at the time of the alleged sexual assault that took place at the apartment in Elliot Lake. In response, M.H. expanded on her statement to police and explained that when her mother gave her a shower, her mother would help her wash her hair and body, while her father, would in her words, “kind of sit there and watch me”, while she washed herself.
Crown Witness – M.C.
[83] M.C. and the accused moved into the townhouse on [street name removed] in Elliot Lake when she was approximately eight months pregnant with M.H. In January 2009, M.H. was born and the family lived together at this townhouse until approximately a year after their separation.
[84] M.C. confirmed that she separated from the accused on December 13, 2013. In January 2014, M.C. and the complainant moved to Sudbury and returned to Elliot Lake prior to the COVID-19 pandemic of March 2020.
[85] While M.H. lived in Sudbury, the accused continued to have parenting time with her on a bi-weekly basis at her paternal grandfather’s residence in Elliot Lake.
[86] M.C. explained that there was a housefire at this townhouse in Elliot Lake when M.H. was approximately two and a half to three years of age. The extent of damage due to the housefire required them to temporarily relocate to an apartment or condominium in Elliot Lake for approximately two months to permit repairs to take place. Upon completion, M.C. and the complainant moved back into their townhouse on [street name removed] at a point in time when the complainant had not yet started junior kindergarten.
[87] M.C. testified that at the time, she was working two jobs which required her to be out of the home for extended periods of time. She further explained that she commenced these jobs when M.H. was approximately three to four months of age but later went on a stress leave after the house fire for approximately six months.
[88] In her evidence in chief, M.C. testified that during their relationship, M.H. was home alone with the accused when he was unemployed. During his periods of employment, M.H. was home alone with the accused after daycare and when she worked two jobs, sometimes on weekends.
[89] Under cross-examination, M.C. admitted that she stated to police that she only left the complainant alone with the accused on a few occasions. She explained that there were times when she did not feel it was safe to leave M.H. in his care and when the CAS did not permit him to be alone with her.
[90] Despite these safety concerns, M.C. left the complainant alone with the accused subsequent to him completing anger management counselling that appeared to be beneficial for some time. Subsequent to this, the CAS became involved when the accused hit the complainant again.
[91] M.C. indicated that she left the complainant in the care of the accused alone when she left their home to conduct errands over the course of a couple of years. Although the paternal grandfather was present at times, she admitted that it was possible the accused was home alone with the complainant frequently.
[92] It also became apparent that the accused had the responsibility of bathing the complainant when M.C. worked late into the evening at Tim Horton’s, which was on a regular basis. However, when M.C. was home, she took on this responsibility.
[93] M.C. would draw the water and ensure that the temperature of the water was appropriate for M.H. prior to her showers or baths. M.H. was largely able to wash herself but required some assistance in washing her hair.
[94] M.C. did not witness a sexual assault of any kind committed by the accused upon M.H. The complainant first disclosed these allegations to her approximately two weeks prior to the two of them providing statements to police in 2021. M.C. explained that at the time of disclosure, she did not know what to do and so she referred M.H. to a counselling service within one or two days of the disclosure.
[95] With respect to the townhouse, M.C. went on to described in detail the location of M.H.’s child-sized table where she played with Play-Doh, arts and crafts or had snacks. M.C. estimates that the table was in their home from when M.H. was nine months old to a point just prior to their move to Sudbury. There was a black couch located on the opposite wall from the location of the M.H.’s Play-Doh table and on this main floor was also an entertainment unit which included a television.
[96] After the disclosure was made by the complainant, she continued to have visits with the accused at the paternal grandfather’s residence. Nothing stood out to her from these access visits.
[97] Upon returning to Elliot Lake from Sudbury, M.C. and the complainant moved into the same townhouse where the alleged sexual assaults took place.
Physical Abuse by the Accused upon the Complainant
[98] M.C. testified that she witnessed the accused to be physically abusive with the complainant when she was approximately one year old and on multiple occasions after that. She indicated that when he was angry or frustrated, he would hit the complainant and at times, would push her.
[99] She went on to describe hearing an incident when the accused had slapped the complainant while giving her a shower. Upon jumping out of bed and entering the bathroom, she observed a red handprint on M.H.’s stomach. The complainant was screaming and crying in the shower with soap in her hair.
[100] According to M.C., M.H. was approximately a year and half at the time of this incident, and it overlapped with involvement from the CAS. Although the accused left the home at the time of this incident, ultimately, he did return, and their relationship continued.
[101] During cross-examination, M.C. rejected the notion that M.H. fell in the bathtub and that the accused did not slap her. She further elaborated that she brought this incident to the attention of the CAS.
[102] Similar to the evidence of alleged masturbation in the presence of the complainant, all evidence of a physical assault that does not form the subject matter of the two charges on the Information before me is deemed discreditable conduct attributed to the accused.
[103] This particular alleged physical assault as witnessed by M.C. did not form any part of the complainant’s evidence in this trial. It exposes general bad character evidence of the accused, and I am not permitted to infer that P.H. is the type of person to have physically or sexually assaulted the complainant as a result of this particular assault or any alleged physical assault that did not form part of the Crown’s case.
[104] Accordingly, due to the risk of a prohibited inference that could be drawn, I am explicitly disabusing myself of any evidence in relation to all physical assaults outside the charges on the Information including the alleged hand slapping upon the complainant while in the bathtub as explained by M.C. during the defence cross-examination.
The Text Messages between M.C. and the Accused
March 27, 2019 (Exhibit #1)
[105] M.C. admitted that she was upset when she sent this text to the accused because he had broken their verbal agreement not to take M.H. to M.D.’s residence. This agreement was based upon concerns that she had with historical domestic violence at M.D.’s residence that included involvement with the local child protection agency. She did not want M.H. to be in such an environment.
[106] M.C. rejected the notion that M.H. was angry and hurt because her father was in a new relationship with M.D.. She also expressed sadness because the accused and M.D. were new parents to a child in 2019 while both struggling with drug use.
December 11, 2018 (Exhibit #2)
[107] M.C. admitted that she was amendable to the accused having parenting time with M.H. but she did not want M.D. to be present during those visits.
[108] Upon careful review of both exhibits, and in consideration of the questions and answers put to M.C., I find that the evidence in these text messages is of little probative value and does not assist me in my overall assessment of the evidence in this trial. In short, this evidence was largely irrelevant and did not advance the case for the defence in light of Mr. Hooper 's submission that he was not alleging any influence by M.C. towards the complainant in bringing these allegations forward.
M.C.’s Employment at Dr. Shapiro’s Office
[109] Mr. Hooper cross-examined M.C. on her employment capacity at Dr. Shapiro’s office, a physician specializing in treating patients struggling with addictions to substances. She commenced her employment in March 2019 as a receptionist and technician. In the course of this employment, she became aware that the accused and M.D. were patients at this medical office.
[110] She denied releasing confidential information pertaining to the accused and M.D. and rejected any notion that she was extremely jealous of M.D. because of her relationship with the accused.
[111] On re-examination, M.C. explicitly denied the following:
i) Telling M.H. to come forward with these sexual assault allegations; ii) Providing a statement to police to get back at the accused; iii) Participating in this investigation to get back at M.D.
[112] Similar to the weight I attached to the text messages, the evidence with respect to M.C.’s employment at Dr. Shapiro's office was equally irrelevant and of little probative value in my assessment of the case against the accused or his defence.
Testimony from the Accused – P.H.
[113] A significant portion of P.H.’s testimony in chief touched upon the difficult time he had experienced in the months leading up to the birth of the complainant in January 2009. He openly admitted to struggling through this dark period of his life in 2008 when his mother, whom he was quite close to, had passed away after a battle with cancer. Evidently, this profound loss of a loved one had a devastating impact on him, and he admitted to being sad and angry in the months and early years of M.H.’s life prior to separation.
[114] Historically, P.H. does not hide the fact that he has struggled with anger. He openly admitted to outbursts that prompted the involvement of the CAS who required him to complete an anger management program. The involvement of the CAS reduced his parenting time with the complainant, but these restrictions were eventually relaxed, and a regular bi-weekly arrangement had continued right up to the point of police involvement in this case.
[115] To the accused, the only thing wrong with his relationship with M.H. was that he was not being permitted enough time with her. The prospect of allegations of a sexual nature and being criminally charged was unexpected, and in his words “came out of left field.”
[116] P.H. testified that up until the point of these charges, he perceived the relationship with M.H. to be without any major problems or concerns.
[117] With respect to each of the incidents described by M.H., P.H. had the following responses:
i) M.H. rarely entered their bedroom due to the presence of adult sex toys in the master bedroom that were inappropriate for children. He described their bedroom as “off limits” for M.H.; ii) There was no television in the master bedroom he shared with M.C.; iii) The family spent the majority of their time in the basement because he and M.C. could smoke there; iv) There was a television in the basement and in the living room on the main floor; v) He smoked marijuana a few times a day on a daily basis during the material time; vi) Recreationally, he consumed Percocets on a bi-monthly basis to ease his back pain.
[118] He admitted during cross-examination that the only form of physical discipline he took against M.H. was spanking. He then specifically denied:
i) Pushing M.H. up against the wall in the bathroom; ii) Pulling her hair; iii) Touching her vagina in any way; iv) Masturbating in her presence; v) Ever giving M.H. a shower while indicating that his involvement in her washing routine was limited to baths only.
[119] According to P.H., there were no concerns identified in his relationship with the complainant except for one issue he raised with the Crown during cross-examination.
[120] He explained that approximately two weeks prior to the charges being laid, M.H. and some of her friends were visiting at his father's home during an access visit. When she departed, he alleges that they left a mess behind and did not clean up after themselves. This prompted him to send a text message to M.H. informing her of the need to clean up after herself when she visits. This event was raised as an example by the accused to explain to the Court that he did not expect these charges to be laid. From his perspective, the charges, and the need to turn himself in “came out of the blue”.
Defence Witness – M.D.
[121] M.D. is the current partner of the accused. She testified that M.C. has made her feel consistently unwelcome. Under cross-examination by the Crown, M.D. admitted to not knowing both the accused, M.C., and M.H. during the period of the allegations on the Information specifically, between 2011 to 2014.
[122] While the defence spent a considerable amount of time attempting to elicit from M.D. circumstances surrounding alleged breaches of confidentiality committed by M.C. while she was employed at Dr. Schapiro’s office, the majority of this information was inadmissible hearsay.
[123] This evidence was the subject of frequent objections from the Crown because M.D. on at least two occasions spoke about evidence that was told to her by other individuals. No exceptions to this exclusionary rule were identified. Upon hearing submissions in relation to these objections, I excused this witness from the courtroom and expressed to defence counsel the concerns I had with respect to the relevance of this evidence and its admissibility. Those concerns were made clear during the trial, and I need not repeat them here.
[124] What I can conclude is that the evidence that M.D. provided on the issue of any potential breaches of confidential information was vague at best. Any evidence pertaining to the possible release of confidential information regarding the accused and M.D. while being treated at Dr. Shapiro’s office was speculative.
[125] We are unaware what M.D. might have heard from staff members at Dr. Shapiro’s office and I am not permitted to speculate as to how she came to believe that M.C. was the author of any breach of confidentiality.
[126] Put another way, there was little to no direct evidence implicating M.C. in a breach of confidential information while she was employed at Dr. Shapiro's office. Accordingly, I do not find the proposed evidence from M.D. to assist me in making any findings of fact in this trial.
Law and Analysis
[127] P.H., as the accused, is presumed innocent and the burden falls solely on the Crown to prove guilt at the high standard of beyond a reasonable doubt. It is not enough for me to believe that he is probably or likely guilty.
[128] P.H. chose to waive his right to silence, and he testified in his own defence. He denied sexually assaulting M.H. both during his evidence in chief and while cross-examined by the Crown. This requires me to assess his credibility in the context of the totality of evidence in this trial.
[129] In assessing the evidence, I remind myself of the differences between credibility and reliability. Credibility relates to the honesty or veracity of a witness. Specifically, whether the witness is expressing themselves truthfully to the best of their abilities.
[130] Reliability relates to the accuracy of the witness’s testimony. In determining this, I must consider their ability to accurately observe, recall and recount the events in issue. A credible witness may give unreliable evidence [4]. Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt. [5]
[131] In assessing the credibility of a witness, I am to consider any inconsistencies in what a witness said at different times. Inconsistencies on minor matters or matters of detail are normal and do not generally affect the credibility of a witness. However, one or more inconsistencies involving material matters can justify concluding that the witness is neither credible nor reliable. In determining this, it is necessary to look to the totality of the inconsistencies. [6]
[132] The principles set out by the Supreme Court of Canada in R. v. W.(D) [7] provide a requisite framework in determining whether the Crown has proven P.H.’s guilt beyond a reasonable doubt:
- If I accept P.H.’s evidence that he did not sexually assault M.H., I must acquit him;
- If I do not believe P.H., but his evidence leaves me with a reasonable doubt on any essential element of the offence, I must acquit;
- Finally, even if his evidence does not leave me with a reasonable doubt, if after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of his guilt, I must acquit.
[133] As the trier of fact, I may believe some, none, or all of the testimony of any witness, including that of an accused.
[134] I must also remind myself that if, after a careful consideration of all of the evidence, I am unable to decide whom to believe, I must acquit. [8]
[135] In applying the test in W.(D), the totality of the evidence must be considered. This was explained succinctly by Justice Campbell [as he then was], in R. v. E.M.W., 2009 NSPC 33, aff’d 2011 SCC 31 at para. 47:
“ ...It is not only appropriate, but necessary for judges to consider all the sources of reasonable doubt. The sources may include the doubt left by the complainant's evidence, the doubt created by the evidence of the accused, the doubt found in any other evidence or the doubt arising from the combination of those sources.”
[136] I am also mindful of the potential for frailties in M.H.’s evidence due to the historical nature of the repeated allegations. The complainant testified to five events that in her mind took place when she was three to four years of age. Three of the five events are similar in nature and are alleged to have taken place in the context of a bath or shower when the complainant states her father touched her vagina at their townhouse or apartment when she was three to four years of age.
[137] One of the incidents consisted of inadmissible discreditable conduct and therefore, I am explicitly disregarding that alleged event (Incident #3 - Masturbation in M.H.’s presence while she stood at the Play-Doh table).
[138] With this in mind, the presence of some inconsistencies with respect to specific details in similar allegations are expected in this context, as explained by C. de Sa J. in R. v. R.C.: [9]
“I acknowledge that Ms. DP had issues with recalling the specific details of many of the incidents. She recalled certain things out of order, and/or forgot certain aspects altogether. In my view, these inconsistencies flow from the lapse in time. They also can be explained by the frequency with which the assaults occurred. This was not one event that occurred to Ms. DP, but rather, it was a series of assaults and sexual assaults which occurred over a number of years. It would be natural to mix up certain details. That being said, the unique nature of the events described and the manner in which they were related by Ms. DP satisfies me of their truth.”
Assessing the Evidence of Children
[139] A further lens must be considered when it comes to the assessment of child witnesses. At trial, the complainant was 13 years old but testified to events that took place in her mind, between three to four years of age.
[140] Both lawyers submitted a considerable amount of case law involving sexual assault allegations brought forward by children. Mr. Hooper also submitted an article titled, “Judicial Assessment of the Credibility of Child Witnesses, (2005) 42 Alta. L.R. Rev. 995-1017, which was cited in R. v. C.J.C.A., 2017 BCPC 152 at para. 59.
[141] As it relates to child witnesses, I am mindful of the instructions by the Supreme Court of Canada in R. v. B.G., [1990] 2 S.C.R. 30 at para. 48:
“ …regarding the credibility of child witnesses, it seems to me that he was simply suggesting that the judiciary should take a commonsense approach when dealing with the testimony of young children and not impose the same exacting standard on [page55] 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. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. [emphasis added] In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children.”
[142] Two years after the release of B.G., Madame Justice B. McLachlin [as she then was] in W.(R), [10] reminded us of two notable developments in the law affecting the analysis of evidence from children.
[143] The first was to remove any notion that the evidence of children was inherently unreliable and must therefore be treated with special caution. As a result of this change in the law, the requirement that a child's evidence be corroborated has been removed from the Criminal Code. Justice McLaughlin made it clear at the end of paragraph 23 in W.(R), that “…if a court proceeds to discount a child's evidence automatically, without regard to the circumstances of the particular case, it will have fallen into error.”
[144] The second notable change in the law towards the evidence of children was a clear understanding that it would be wrong to apply adult tests in assessing credibility to the evidence of children [11]. Justice McLaughlin goes on to explain that children may experience the world differently from adults and that we should not be surprised that details important to adults such as time and place may be missing from the memory of a child. Trial judges are instructed to take a common-sense approach and to not apply the same exacting standard that we would with respect to adult witnesses. This was a reiteration of the Supreme Court's decision in B.G. two years prior.
[145] The W(R) case is significant for my analysis because one of the three victims was between the ages of two to four years old when the sexual assault incidents took place. In that case, the child came forward to authorities at the age of seven and was nine years old at the time she testified at trial. Those facts are important because they formed the evidentiary context for the Supreme Court of Canada's pronouncements in the legal principles above.
[146] I am also mindful of R. v. G.B., 2016 ONCA 752, where the facts are strikingly similar to the case at bar before me. In G.B., the Ontario Court of Appeal upheld the trial judge’s conviction in a case that involved a child complainant recalling events dating back to when she was three to four years of age, and who testified at the age of 12.
[147] The principles above are directly applicable to the case at bar. Although I am not required to, I have cautioned myself on the dangers of convicting the accused based primarily on historical evidence from the distant past in my assessment of the evidence before me.
W.(D) Analysis
[148] I make the following conclusions in consideration of the totality of the evidence and applicable legal principles:
- If I accept P.H.’s evidence that he did not sexually assault M.H., I must acquit him.
[149] I do not accept the evidence of P.H. specifically in relation to his denial of the allegations of sexually assaulting the complainant. At the outset of defence counsel’s examination in chief, a significant portion of P.H.’s evidence was unfocused and irrelevant. The accused testified extensively that he suffered emotional trauma and harboured feelings of anger and sadness as a result of his mother's passing in 2008. This was prior to the birth of the complainant in January 2009 and at least 3 years prior to the allegations before me.
[150] At times, P.H.’s testimony was contrary to common sense. His evidence was not credible or reliable in light of the totality of the evidence presented through himself and the Crown witnesses. I find that during cross examination the accused was evasive and that his explanations regarding facts that appeared to be in dispute with the complainant were in my view, intended to detract culpability away from himself. I did not find his testimony to be persuasive.
- If I do not believe P.H., but his evidence leaves me with a reasonable doubt on any essential element of the offence, I must acquit.
[151] Although I have rejected the evidence of the accused, I must still ask myself if his evidence leaves me with a reasonable doubt on any of the essential elements of the offences of sexual interference and sexual assault. The issue in this trial is not whether the essential elements of the offences have been met. This case turns on the issues of credibility and reliability of the trial evidence as they relate to the allegations. Having considered the evidence of the accused, in conjunction with the totality of the evidence, I am not left with a reasonable doubt on any of the essential elements of the two offences charged.
- Finally, even if his evidence does not leave me with a reasonable doubt, if after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of his guilt, I must acquit.
[152] On the evidence that I do accept, the question is whether I am satisfied beyond a reasonable doubt that the accused committed the offences of sexual interference and sexual assault upon M.H. during the material times.
The Complainant’s Credibility and Reliability
[153] This requires me to address the significant inconsistencies in the complainant’s evidence and the discrepancies that are apparent between her evidence and the evidence presented by the defence and in consideration of the totality of the record. In examining the evidence of M.H., I have identified a number of relevant inconsistencies that will be explored below.
The Issue of Penetration
[154] Incident #4 is alleged to have taken place at the townhouse moments prior to a shower. When the complainant testified in chief, she indicated that the accused touched the inside of her vagina with his finger and that she does not recall the duration of this incident. She also indicated to the Crown that (1) she was not aware as to how deep he penetrated her vagina (2) that she was crying (3) that she tried to run away and (4) that the accused grabbed her by her hair preventing her from leaving and “pulled her back”.
[155] However, during cross examination, the complainant admitted that the accused did not touch inside her vagina because he had learned not to do so because previously, she had screamed, and he did not want anyone to know.
[156] I have considered the legal principles as they relate to child witnesses and historical sexual assaults particularly in cases where multiple occasions are recalled by the witness. As explained in B.G., “…a contradiction in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult.” [12]
[157] With this interpretation in mind and in recognition of the number of times the act of sexual touching is alleged to have happened, I am not concerned with this inconsistency as it relates to whether or not the accused penetrated her vagina with his finger or fingers.
[158] In consideration of the evidence before me, the inconsistency as to whether the accused inserted his finger or fingers into M.H.’s vagina during the alleged sexual assaults does not impact her overall reliability and credibility as it relates to the core accusation that he touched her vagina prior to taking a shower [or bath] when she was between the ages of three to four years old, and with her mother absent from their family residence.
[159] What remains consistent throughout her description of this incident is that the sexual touching on her vagina took place in the bathroom with no one else home and in the face of her objections and attempts to flee from the accused.
[160] I find that the inconsistency on the issue of penetration in Incident #4 at the townhouse prior to the complainant taking a shower does not detract away from the truthfulness or the reliability of M.H.’s evidence as a whole.
The Presence of a Television in Incident #5
[161] A further inconsistency is identified in the context of Incident #5 which is alleged to have taken place in the master bedroom in the townhouse. M.H. testified in chief that she was lying down on her parents’ bed and that she did not remember exactly what she was doing. She explained that she may have been watching television at the time the accused entered the room and touched the outside of her vagina.
[162] However, when the Crown cross examined the accused, he repeatedly asserted that there was no television in the upstairs bedroom that he shared with M.C. at this residence. He then identified the location of the two televisions in their townhouse to be in the downstairs basement and main floor living room near the Play-Doh table. In his evidence, the three of them spent the majority of their time in the basement where there was a television because they could smoke there.
[163] Within Incident #5, there is a significant difference of evidence as it relates to access to the bedroom shared between the accused and M.C. According to the accused, M.H. was rarely present in this bedroom due to inappropriate sex toys he shared with his former partner that were located in this bedroom. The accused stated that this was a reason why it was rare for M.H. to enter their bedroom and that she was aware that her parents’ bedroom was “off limits” to her.
[164] I find it curious that a young child of three to four years old would rarely be permitted to enter her parents’ bedroom when the three of them had resided together at the townhouse in Elliot Lake as a family. Children of tender years tend to gravitate towards their parents especially in their formative years which would inevitably result in them casually spending time in each other’s immediate presence which would have included being in the bedroom of the parents on a consistent and regular basis.
[165] While it may have been true that the shared bedroom of the accused and M.C. might have contained adult sex toys at the material times, I do not accept that this resulted in the complainant being essentially prohibited from entering the common sleeping quarters of her mother and father while she was three to four years old, with rare entry.
[166] Furthermore, as to the absence of a television in the upstairs bedroom of the parents, I am mindful of the Supreme Court of Canada’s directions in assessing the evidence of child witnesses as explained above in B.G.
[167] On the evidentiary record, it is reasonable to infer that the complainant was referring to a different location within the same townhouse where there was in fact a television as the actual location of the alleged sexual touching.
[168] Ultimately, the presence or absence of a television near a bed situated within their townhouse where M.H. alleges her father had touched her vagina does not detract away from what she was feeling at the time of this incident, who allegedly touched her and whether her sexual integrity was violated.
[169] My main focus is weather I believe the complainant has misconceived what happened to her and who may have committed the alleged sexual touching. In a careful analysis of the complainant's testimony in conjunction with the totality of the evidence, her evidence remained consistent that her father touched her vagina with his rough hands and that “all of it hurt”, while she lay on the bed, as she described in her own words.
[170] Additionally, the accused admitted under cross-examination that he consumed marijuana three times a day on a daily basis during the material times of the allegations. He also admitted to consuming Percocets to deal with back pain but without a medical prescription.
[171] The combined effect of these factors causes me to question the reliability of his own recollection of these events as well as his credibility as it relates to the physical and sexual assaults alleged by the complainant.
Showers or Baths
[172] According to M.C., historically both parents bathed M.H., which was a regular part of the child’s bedtime routine. Bathing included showers and M.C. helped M.H. wash her hair and body. Showers and baths were a common practice which were dependent on the amount of time available for this routine regardless of where the complainant lived during the material times in question.
[173] However, the accused drew a clear bright line in the evidence on this fact. He testified that he only assisted M.H. with baths and at no point in time did he ever assist her when she took a shower. Under cross-examination, he explained that M.H. did take showers at the age of three or four but these showers happened only with the assistance of M.C.
[174] This is inconsistent with what he told police on a prior occasion. In his statement to police, the accused was asked whether M.H. took showers at all during the material times and his answer was that she did not. The accused explained this inconsistency because at the time he gave his statement to police, he had just woken up approximately five minutes prior and was not alert to factual details going back several years.
[175] As an explanation for never assisting M.H. when she took a shower, the accused explained that the floor of the bathtub could get slippery due to soap and that the complainant could fall and hit her head. In his mind, it made more sense to give her a bath as opposed to a shower for a young child of this age because of this safety concern.
[176] If there was a genuine concern for the safety of M.H. and the risk of her slipping, falling, or striking her head while taking a shower in the presence of her father, those same concerns would have also existed when M.C. assisted the complainant with a shower, in the same bathtub on other occasions.
[177] However, the evidentiary record before me strongly suggests that P.H. did not have or express those safety concerns regarding potential hazards associated with M.H. taking a shower when she was three to four years old. On the accused’s own evidence, it is reasonable to infer that he in fact did not have any concerns when M.C. assisted M.H in having a shower. This evidence must be considered in light of the safety concerns he expressed in his testimony at trial with respect to M.H. falling in the bathtub on the days that he was responsible for washing her.
[178] With respect, I do not accept this explanation as expressed by the accused. I find his explanation to be contrary to logic and I reject his evidence on this particular point. To the Court, this appears to be an attempt by P.H. to divert attention away from any opportunity he had to sexually assault the complainant when he assisted her in washing herself.
[179] I find that the accused did in fact assist the complainant in washing herself at the material times of these allegations, and that this included showering her in the bathtub, while she was unclothed and when there was no one else present in the home.
[180] The defence also submits that a material inconsistency exists in the evidence of M.H. with respect to her recollection of a house fire at the townhouse in Elliot Lake. According to Mr. Hooper, she indicated that one of the incidents at the townhouse took place right after the house fire but then she also testified to not recalling there being a house fire to begin with.
[181] With respect, I do not agree that there is a material inconsistency in the complainant’s evidence. The evidentiary record is clear that she believes that Incident #2 at the townhouse in Elliot Lake happened after the house fire but a few years before they moved away to Sudbury because she does not recall the walls being painted in the bathroom. In expressing this belief to the Court, she candidly admitted that the multiple incidents as explained in her testimony may not be in chronological order.
[182] I find that none of this detracts away from the credibility or reliability of the complainant specifically as it relates to who touched her vagina on these occasions, the location of where these incidents took place and the consistent absence of her mother during the commission of these alleged offences.
[183] Mr. Hooper took aim at the complainant’s reliability in recalling the alleged masturbation incident (Incident #3). He argued that a three-year-old child does not have the ability to feel disgusted in reference to witnessing her father masturbate in the living room. To this end, he argues that M.H.’s recounting of this detail is a product of interweaving her current knowledge of sexual activity into the recounting of her historical memory of these events. He submits that a three-year-old child would not understand ejaculation or feeling disgusted, and that her knowledge of this situation is well beyond that of a child of that age.
[184] Further evidence in support of Mr. Hooper 's argument on the interweaving of historical memory with current knowledge surfaced when the complainant testified as to where her mother might have been during these incidents of sexual touching. During cross examination, the complainant openly admitted to Mr. Hooper that her own belief that her mother was working two jobs with occasional appearances at home during her breaks from work was a product of current knowledge. While she admitted to weaving in this current knowledge, she was clear during cross examination that this knowledge formulated in her mind in the years subsequent to the actual events alleged.
[185] There was no attempt on her part to justify the intermingling between her historical memory of being sexually assaulted on multiple occasions by her father with the subsequent information that she came to know as to her mother's whereabouts and why she was absent during these incidents.
[186] The essence of Mr. Hooper’s submission is that someone has suggested this subject-matter to the complainant, and that this has somehow formed a part of her memory today. In other words, the reliability of M.H.’s memory has been compromised and resulted in false memories that she believes to be true. To this end, the defence do not challenge M.H.’s credibility but rather, vigorously oppose the reliability and accuracy of her memory.
[187] Mr. Hooper also submitted that M.H.’s evidence was too detailed in a descriptive sense and that this level of detail is a hallmark of unreliability because of her age as a young child of three of four. For example, he submits that her recollection that the wall was painted in their townhouse, is a level of detail that is not possible for a child of this age. No expert evidence was introduced to support his personal opinion on this fact.
[188] With respect, this submission is contrary to the law and established literature as they relate to the memory of children. I need not look any further than the legal principles enunciated in 1992 in the decision of W.(R), cited above.
[189] If I accept Mr. Hooper’s submission on this point, no child in the age range of two to four years old who testifies to any degree of detail in a sexual assault trial would be worthy of belief. Reasoning of this nature would effectively turn back the clock in how trial judges are expected to examine the evidence of children through a more flexible lens in light of the unique way that they perceive events in comparison to adults.
[190] For example, according to the defence, M.H.’s recollection as to how many fingers the accused may or may not have inserted into her vagina, is a sign of unreliability because this would be beyond her maturity level. It was further submitted that the complainant would not have been capable of expressing “no” to her father due to her young age of approximately three.
[191] I do not accept these submissions. As to the number of fingers inserted by the accused, the evidence is clear that M.H. does not recall how many fingers he used. There is nothing unreliable in her response that is rooted in M.H.’s young age.
[192] Secondly, I explicitly reject the notion that a young child at the age of three would not be expected to express “no” to a perpetrator. The evidence points to M.H. specifically remembering that she told her father to stop and that when he touched her vagina, this caused her pain. There is nothing inherently unreliable with this particular evidence as expressed by the complainant. When a child subjectively believes they are being harmed, and experiences fear, pain, or discomfort due to that harm, it is completely reasonable to expect that child to react by expressing their discontent to being touched either through words or actions, which is precisely what I find happened in this case.
[193] Furthermore, if the source of that harm is a direct result of an adult touching their vagina that has caused pain or discomfort due to a “rough hand” or penetration with fingers, the reliability of that memory is enhanced in conjunction with the totality of the evidence.
[194] Additionally, while I am mindful that the allegations relate back to when M.H. was three to four years of age, I find that her memory in relation to various factors taken collectively is sufficiently credible and reliable. I come to this conclusion upon consideration of the factors listed below.
Her memory of:
- Where she lived in Elliot Lake during the material time;
- With whom she lived with during the material time;
- The type of residence she lived in (apartment or townhouse in Elliot Lake);
- When she moved away to Sudbury;
- The major events in her life (i.e.: birthday party) as a young child in relation to the general timing of the first incident of sexual touching;
- Her mother being absent from the home for extended periods of time with intermittent visits home, which was sufficiently corroborated in the totality of the evidence;
- The physical aggression she sensed from her father during these incidents elicited under cross-examination at both the apartment and townhouse;
- The physical layout of her residences at the ages of three to four years old;
- Being alone with her father “quite a bit” prior to the involvement of the CAS;
- A period of time when access with her father stopped completely, which was sufficiently corroborated through other evidence;
- Detailed perceptions of the accused touching her vagina on the outside or by inserting his fingers combined with a firm memory that in all instances, this caused her pain due to his rough hands [where there was penetration, her memory of the pain she experienced due to scratching];
- Crying throughout these incidents;
- The accused telling her not to tell her mother or anyone else after each incident of sexual touching;
[195] I am also mindful of M.H.’s explanation for the delay in disclosing these allegations which I find to be reasonable for a child with her level of emotional development and maturity within the context of her family dynamics. I have not come across any compelling reason to detract away from what is, otherwise, consistent, and evidently credible and reliable testimony on the core essential elements of repeated sexual touching of her vagina by the accused in the absence of any other persons in her home.
[196] I adopt the reasoning of the Saskatchewan Court of Appeal in R.I.G. [13] as initially expressed by the Supreme Court of Canada in B(G): [14]
“ While children may not be able to recount precise details and communicate the when and the where of an event with exactitude, it does not mean they misconceived what happened to them.”
[197] In examining each of the inconsistencies in the evidence of the complainant as enunciated in this trial in conjunction with the other testimony and exhibits received, I remind myself of the Crown’s burden to prove each of the essential elements of the offences to the standard of beyond a reasonable doubt.
[198] I have also considered the factual discrepancies in the complainant’s testimony in light of the totality of the evidence before me. I did not find the complainant to exaggerate or defend her evidence in any way throughout the entirety of this trial. She was not evasive and took the time she needed to answer each question put to her in the hours that I had an opportunity to receive her testimony.
[199] She readily admitted to portions of her memory that were based upon current knowledge that might have been interwoven with historical memories of the sexual touching she says she experienced. But that evidence proved to be immaterial to her core evidence of the alleged sexual assaults.
[200] As it relates to the material aspects of the actual sexual touching and where it happened and by whom, her evidence has remained consistent throughout her examination in chief and cross examination in this trial. Upon careful consideration of the entirety of the evidence before me, I am not left with a reasonable doubt.
Conclusion:
[201] M.H.’s memory from a sensory perception standpoint was expressed when she talked about feeling an object touching against her back when the accused pushed her against the bathroom wall prior to touching her vagina. She also talked about feeling a scratch inside her vagina and pain on the outside of her vagina due to her father's rough hands. She described with clarity that these incidents of sexual touching only transpired when her mother was absent and that her father, the accused, would tell her not to tell her mother or anyone.
[202] She described with clarity that she told her father to stop and that she squirmed or attempted to run away from him. She further explained that these incidents of sexual touching had a common theme that took place moments prior to or during bathing or showering in the bathroom in their townhouse or apartment in Elliot Lake when she was three to four years old.
[203] Having rejected the evidence of the accused, I am not left with a reasonable doubt that he sexually assaulted M.H. even after I consider his testimony and the entirety of the evidence before me.
[204] I accept the evidence of M.H. as credible and reliable and find that her testimony was significantly descriptive in explaining to the Court what she remembered, what she was feeling and what she experienced at the hands of her father during the material times of these allegations.
[205] The Crown has proven each of the essential elements of the offences beyond a reasonable doubt. Accordingly, I find P.H. guilty of sexual interference contrary to section 151 of the Criminal Code. The sexual assault charge contrary to section 271 of the Criminal Code is hereby stayed pursuant to the principles in R. v. Kienapple, [1975] 1 S.C.R. 729.
Released: May 19, 2023 Signed: Justice Leonard Kim