Warning and Non-Publication Order
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 â sexual offences. â (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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 â 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 â (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: 2025-01-28
COURT FILE No.: Hamilton 998 24 47105668
BETWEEN:
HIS MAJESTY THE KING
â AND â
LORD LELAND GILBERT
Reasons for Judgment
Before Justice Davin M.K. Garg
Heard on November 5-6 and December 20, 2024, January 22, 2025
Reasons released on January 28, 2025
Mark Dean â counsel for the Crown
Geneviève Eliany â counsel for the accused Mr. Gilbert
Introduction
GARG J.:
[1] The accused, Mr. Lord Leland Gilbert,[1] is charged with committing sexual offences against the eight-year-old son of his ex-girlfriend. The complainant described how the accused would touch and perform oral sex on his penis and anus. The accused is also charged with breaching a court order that prohibited him from communicating with children under the age of 16 without receiving certain permissions.
[2] This case requires me to consider the role of cross-examination in undermining the credibility or reliability of a child witness. Cross-examination is fundamental to an accused making full answer and defence. But in assessing its impact, the trier of fact can keep in mind the unnatural experience for the person being cross-examinedâespecially when that person is a 9-year-old child.
[3] Nevertheless, despite the able submissions of Mr. Dean, I am not convinced beyond a reasonable doubt that the accused committed the sexual offences. Based on my consideration of the evidence as a whole, I find that the evidence is not sufficiently credible and reliable to ground a conviction on these offences.
[4] I am, however, convinced beyond a reasonable doubt that the accused was in the company of and communicated with the complainant. I am satisfied that the offence is made out even if the accused only communicated with the complainant over video chats. By breaching this prohibition order, the accused also breached his probation order.
Legal Principles
[5] The Crown bears the onus of proving each and every element of the offences charged beyond a reasonable doubt. The accused carries no onus to prove or disprove anything. He is presumed innocent of all charges. The burden of proof never shifts to the defence. It is not enough for me to believe that the accused is probably or likely guilty of an offence. In that situation, I would need to acquit. While the Crown is not required to prove its case to an absolute certainty, proof beyond a reasonable doubt falls much closer to an absolute certainty than the balance of probabilities. Reasonable doubt can arise from the evidence or from the absence of evidence.
[6] The complainant is a child. He was eight years old at the time of the alleged offences, eight years old when he spoke to the police, and nine years old when he testified. I must assess his evidence with reference to criteria appropriate to his mental development, understanding, and ability to communicate. I must take a âcommon sense approachâ when assessing the testimony of a young child and not impose âthe same exacting standardâ on a child as I might on an adult: R. v. B.(G.), [1990] 2 S.C.R. 30 at 54-55; R. v. W.(R.), [1992] 2 S.C.R. 122 at 133-134. âWhile 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 itâ: B.(G.) at 54-55. See also R. v. D.F., 2023 ONCA 584 at paras. 63-69 per Hourigan J.A.[2] To be certain, the standard of proof is not lower in cases that rely on a child witness. Guarding against the injustice of a wrongful conviction demands a solid evidentiary foundation before returning a guilty verdict.[3]
Summary of the Alleged Sexual Abuse
[7] The evidence of the alleged offences was elicited through the complainantâs in-court testimony and videotaped statement to the police. The statement was admitted on consent under s. 715.1 of the Criminal Code.
[8] The complainant described multiple instances of the accused touching him in an explicitly sexual manner. The complainant explained how the accused would touch his âno no squareâ, which became clear to include his penis. The complainant also described how the accused would bob his head up and down on his groin area, referring to oral sex. The complainant was ultimately explicit: âHe put his head on my penis and just started suckingâ. The complainant also described sexual contact on his bottom. He alleged that the accused put his finger in his own mouth and then placed it in the complainantâs anus, which the complainant described as his âbum holeâ. The complainant also explained how the accused would lick his bum.
[9] The complainant said that the alleged offences happened at two places: his own home in Fort Erie and the accusedâs apartment in Hamilton. He explained how his mother was sometimes present or nearby, sleeping or outside of the room. The complainant said that he kept his clothes on during the incidents. He had a difficult time explaining how the incidents occurred with his clothes on.
[10] The complainantâs mother testified. She supported the complainantâs account by confirming the accusedâs opportunity to commit the offences and by recounting her observations of seeing the complainant in the accusedâs bed from time to time.
Analysis of the Complainantâs Evidence
[11] There was a major inconsistency in the complainantâs evidence that cannot be attenuated by his young age. This inconsistency impacted the complainantâs credibility and reliability with respect to the alleged sexual offences. In the complainantâs video statement and examination in-chief, he referenced physical acts that the accused had committed in person. But the complainant deviated from that position in cross-examination. He repeatedly limited his experience with the accused to video chats.
[12] Near the beginning of the cross-examination, the complainant agreed with counselâs suggestion that he only saw the accused on video, save for one in-person encounter where the accused had sent him and his mother away.[4] This initial inconsistency was potentially explainable by the complainantâs age and immaturity. Perhaps he was confused by the question. He might not have understood counselâs phrasing. He might have been referring to video chats that had occurred before the in-person visits. Young children can be suggestibleâperhaps the complainant would simply agree with any suggestions put to him.
[13] The Crown urged me to put this inconsistency in context. The complainant responded to counselâs leading question with a single word: âyesâ. By contrast, the complainant described the sexual offences in vivid detail during his video statement in response to open-ended questions. He used hand motions to describe some of the acts, such as masturbation. He described the acts in a childâs voice, with phrases like âdoing the mountainâ and âthen I belly face-plantâ. He described the sequence of events in a manner expected from a child. For example, instead of saying, âMr. Gilbert performed oral sex on my anusâ, the complainant said, â⌠he also put his head to my bum ⌠He was moving his head forwards, and I tried to move his head backwards ⌠He sticked his tongue out ⌠And started licking ⌠my bum holeâ. There were also times that the complainant corrected the interviewing officer.
[14] Nevertheless, I find that the totality of the cross-examination left me uncertain on whether I could rely on the complainantâs articulation of the sexual offences. As the cross-examination wore on, counsel returned to the suggestion that the complainant had not seen the accused in person. The complainant continued to agree with that suggestion, even when counsel changed how she phrased the question. For example:
The complainant agreed that meetings with the accused were video chats once he and his mother had moved to Fort Erie.[5]
The complainant agreed when it was put to him again that he had only seen the accused on video, until the meeting when the accused sent him and his mother away. The complainant acknowledged how the absence of in-person visits created confusion about how the accused could have engaged in the described sexual acts while the complainant was wearing his clothes.[6]
In his statement, the complainant commented how the accused never went under him. When the officer asked what that meant, the complainant responded, âWell, I donât know ⌠Iâm just gonna leave that part out ⌠I just get confusedâ. The complainant agreed in cross-examination that it was confusing because he was never alone with the accused in person.[7]
[15] The cross-examination also established that the complainant was capable of disagreeing with counselâs suggestions. It showed me that the complainant was not simply agreeing with everything that was put to him during the examination.
[16] I am not concerned with exaggerations in the complainantâs statement that go directly to his age and immaturity. For example, the complainant exaggerated the number of times that he had seen the accused. I find that his manner of calculating the frequency of events was an appropriate way for a child of his age to say, âa lotâ or âmany timesâ.[8]
[17] But the inconsistency about whether the complainant saw the accused in person is a significant problem. Whether the complainant saw the accused in person is not a peripheral matterâit is part and parcel of the core allegations: see D.F., at paras. 67-68. Even when I consider the compelling aspects of the complainantâs video statement, I am left unable to choose between the inculpatory and exculpatory parts of his evidence. I appreciate that there were points in the complainantâs cross-examination where he said that the accused was alone with him or described seeing the accused in person at his home.[9] But these passages do not mitigate the portions that undermined the inculpatory evidence.
[18] I remain concerned that the complainant was coached to make the sexual allegations against the accused, notwithstanding the language he used to describe the offences in his video statement. Defence counsel asked if the complainant was trying to remember a story that he had been told. The complainant responded in the affirmative. While the Crown questioned the value of this response given ambiguities in the question, the complainantâs suggestibility was demonstrated through his statement when he said that he hit the accused to make him stop because âit sounded like the right thing to sayâ. Oddities in the complainantâs statement also support the coaching theory. The complainant told the police that the accused wanted to âhook upâ with a particular woman. The complainant testified that he did not know the meaning of âhook upâ. The phrase âhook upâ is not commensurate with the complainantâs immature manner of speaking on other subjects. It is entirely possible for an immature child to pick up mature phrases here and there. But the complainantâs testimony about how he knew that the accused wanted to hook up with this woman left me wanting. He essentially denied hearing it from anybodyânot the accused, not his mother, not third parties. He simply did not knowâor of greater concern, refused to sayâhow he learned this tidbit about the accused.
[19] The coaching theory is not an all-or-nothing proposition. I appreciate the argument that important portions of the complainantâs video statement do not seem coached. There are times that the complainantâs language and mannerisms feel authentic. But other aspects of the statement, and particularly the cross-examination, support the coaching theory. For example, I noted how the complainant switched to describing acts in an adult voice when he added, âhe started sucking my penis tooâ near the end of his statement. It might be that the complainant was coached yet also shared authentic recollections. The trouble is that I cannot sufficiently discern what might have happened to safely rely on the complainantâs evidence about the sexual offences.
[20] I find that the flaws exposed in cross-examination were not rehabilitated by the limited re-examination. The Crown asked the complainant, â[defence counsel] asked you about trying to remember a story ⌠but when it comes to what youâve told us about [the accused], and touching your body in your no, no square, is that a story that someone told you or is that what actually happened?â This question left a young witness with a binary choice. Given what had unfolded in cross-examination, I put little weight on the complainant choosing the latter alternative among the two options put to him. The complainantâs susceptibility could have led him to select the seemingly correct option.
Analysis of the Supporting Evidence
[21] The testimony of the complainantâs mother supported how the complainant had initially recounted the alleged events. Her testimony provided a path for me to accept and rely on the evidence from the complainantâs video statement.
[22] However, I find that the complainantâs mother was neither sufficiently reliable nor credible to corroborate the complainantâs account of the sexual offences. In terms of her reliability, she recognized that she struggled with memory problems. She sometimes responded to questions by saying that she could not remember what had happened last week. In terms of her credibility, she struggled to follow the courtâs direction to limit herself to answering questions. Counsel would ask a straightforward question, and she would supply a combative response that was not always on point. Her evidence did not alleviate the concern that the complainant might have alleged the sexual abuse at the urging or direction of his mother. I am not saying that such fabrication did in fact occur. But I cannot discount the possibility.
[23] For example, her testimony did not alleviate concerns about whether the accused could have committed the alleged offences in her presence in the manner described by the complainant. The complainant explained in his statement how some of the alleged offences, like those at his own home, led him to scream at the top of his lungs. Both the accusedâs apartment and the complainantâs home are relatively small spaces. The complainant agreed that there were times, beyond the alleged offences, where he would call for his mother at their home and she would respond. Yet the complainantâs mother was unnecessarily resistant to the same suggestionâsaying that she might not even hear the complainant screamingâby pointing to how they lived on a busy street, even though their home was an apartment at the back of a house. In short, when it comes to the abuse that allegedly occurred while she was home, the complainantâs mother did not provide credible explanations for why she would not have heard the complainant while she was awake or why she would not have woken up. The complainantâs mother might be a deep sleeper, but I do not trust her evidence that she would sleep through âan atomic bombâ dropping beside her head. The same could be said for whether she would have heard her son screaming in the accusedâs studio apartment while she slept without the benefit of her CPAP machine.
[24] Her evidence about how she would find the complainant sleeping with the accused also caused me to question her credibility and reliability. When asked how many times she would wake up to find the complainant sleeping with the accused, she responded âpretty much every single timeâ that they stayed together in the same home. She testified that she would check to make sure that the complainant was wearing his clothes and noted that the accused was wearing boxer shorts. She would question her son about whether anything had happened. This testimony tells me that she highly suspected the accused of foul play. Yet on her own account, she continued to put the complainant in the same situation with the accused. Whether the complainantâs mother did enough to protect her son is beside the point. What matters is the inconsistency between her apparently taking protective measures (e.g., checking the clothing of her son and the accused) yet also making risky decisions (e.g., leaving her son alone with the accused). Her evidence does not add up and struck me as exaggerated.
[25] The complainantâs mother was also challenged on whether she had a financial motive to coach her son to make the allegations against the accused. She admitted that she was struggling to pay the bills and was focused on trying to set up a good Christmas for her son. She was shown text messages that purported to show her trying to extort money from the accused in exchange for having the police drop the charges. She denied sending the messages.
[26] At a minimum, I find that her evidence when questioned about the messages undermined her credibility. I found her reaction when confronted by the messages to be inauthentic. She argued with counsel right from the outset:
Q. Okay. So, Iâll show you some text messages.
A. You want text messages, I could show you text messages too if I can put them through court but see, Iâm not allowed to.
[27] The evidence also presents a compelling circumstantial case that the complainantâs mother had sent the messages:
The messages refer to a $690 loan to the accused that the sender wants repaid, and the complainantâs mother, before the messages were put to her, referred to the accused owing her $690.
The sender has some knowledge about a history between the accused and his sister Ashley. The complainantâs mother acknowledged her understanding of that history.
Someone could have sent the messages to implicate the complainantâs mother. This possibility was weakened by the evidence of the accusedâs current wife, who testified that she was handling the phone when the messages arrived. She added that the accused was at home when she received some of the messages. I found the accusedâs wife to testify credibly on this point. She recognized that she could not be certain on the senderâs identity.
The complainantâs mother seemed to stumble into admitting that she had sent the messages. Defence counsel had previously suggested that the complainantâs mother only met the accused in August 2023; the complainantâs mother asserted it was earlier. When flipping through the pages, she noticed a date stamp from June. Based on this date stamp, she pointed out that she must have known the accused before August, given that the message had been sent in June.[10]
[28] Even without making a finding on who sent the messages, I find that the complainantâs mother was not sufficiently credible or reliable to resolve my concerns with respect to the sexual offences.
[29] There were also inconsistencies between the complainant and his mother, including the type of clothing worn by the complainant (e.g., whether he wore onesies) and whether the complainantâs mother wanted money from the accused. The former inconsistency is not peripheral, as it goes to whether the accused could have committed the offences in the manner described by the complainant. The mother also did not see any blood in the complainantâs bed or underwear, which highlights an absence of evidence given how the complainant described bleeding from some of the alleged offences.
[30] In conclusion, I am troubled by the possibility that a young child witness was confused in cross-examination and innocently agreed with suggestions that led him into inconsistencies: R. v. F. (C.C.), [1997] 3 S.C.R. 1183 at para. 48. But after considering all the evidence, I find that I am not able to look past the significant inconsistencies. Even when applying the reduced scrutiny associated with child witnesses, âone of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what [they] said on other occasionsâ: R. v. A.M., 2014 ONCA 769 at para. 14; see also R. v. M.G., [1994] O.J. No. 2086 at paras. 23, 29. âObviously a contradicted videotape may well be given less weight in the final determination of the issuesâ: F. (C.C.) at para. 47. The inconsistencies do not undermine the totality of the complainantâs evidence. But I am left uncertain that the accused committed the sexual offences or had the opportunity to commit them as described. While a relaxed standard applies when assessing a young complainantâs evidence, the standard of proof that incumbers the Crown remains the same.
Breaches of Court Orders
[31] During his relationship with the complainantâs mother, the accused was bound by a prohibition order imposed under s. 161 of the Criminal Code. The order directed the accused as follows:
Do not be in the company of or communicate, directly or indirectly, by any physical, electronic or other means, with males or females under the age of 16 years unless you have written permission of your probation officer and the local child protection authority and the lawful guardian of that child.
[32] I am satisfied beyond a reasonable doubt that the accused had not obtained the requisite permissions. He did receive permission at some point from the complainantâs mother (the complainantâs âlawful guardianâ). And the Crown called no evidence from a probation officer. But the evidence establishes that the accused did not receive permission from the local child protection authority. The defence did not challenge this conclusion during submissions.
[33] The Crown called a worker from the Catholic Childrenâs Aid Society, which is a âlocal child protection authorityâ in Hamilton. The worker was assigned to the file for the complainant and his mother. The worker never provided permission for the accused to see the complainant. The agencyâs records did not disclose any permissions. And I accept the workerâs evidence on why he would have been made aware through information sharing if the accused had sought permission from a different child protection authority, including those based in different jurisdictions.
[34] The defence contested the breach charge by asking me to doubt whether the accused had been in the company of the complainant or communicated with him. While recognizing that the complainant had seen the accused on video chats, the defence argued that the contact in those instances was fleeting and superficial.
[35] I am satisfied beyond a reasonable doubt that the accused was in the physical company of the complainant. I appreciate that the complainantâs inconsistent evidence on this point contributed to my doubt about the sexual offences. But that inconsistency only led me to doubt whether the accused and complainant were together in a manner that allowed the accused to commit the sexual offences. It does not cause me to wholesale reject any evidence going to the complainant and accused meeting in person: see R. v. J.H., [2005] O.J. No. 39 at para. 44. While there was merit to the complainant being coached on the sexual offences, there is no merit in this case to him being coached to simply put himself in the accusedâs company. The complainantâs mother was sufficiently credible and reliable to support the less controversial point of the complainant being in the direct company of the accused. I can accept some, none, or all of a witnessâs evidence: R. v. S.H., 2011 ONCA 215 at para. 8. Unlike the allegations of sexual abuse, the mother provided direct evidence on the complainant being in the accusedâs presence.
[36] I also find that the accused and the complainant had a relationship. This finding supports my conclusion that the accused communicated with the complainant. I accept the motherâs evidence that the complainant called the accused âdaddyâ. I find it instructive that the complainant called the accused âdadâ in a spontaneous manner during his police statement.[11] I make this finding despite the complainant saying in cross-examination that he did not call the accused âdadâ. I note that the complainant had seen someone else in the courtroom that he identified as âdadâ at the time of his testimony.
[37] Finally, I accept the motherâs evidence about how the complainant would communicate with the accused over video chats on Facebook Messenger. The mother provided detailed evidence about who was present, the device they used, and where the accused was located during the chat.
[38] In conclusion, I find beyond a reasonable doubt that the accused breached his prohibition order at various points between May 1 and December 1, 2023. He breached the order through in-person and electronic means. By virtue of this breach, the accused also breached the condition of his probation order to keep the peace and be of good behaviour.
Verdicts
[39] I find Mr. Gilbert not guilty on counts 1, 2, 3, 5, 6, and 7. I find Mr. Gilbert guilty on counts 4, 8, 9, and 10.
Released: January 28, 2025
Signed: Justice Davin M.K. Garg
Footnotes
[1] The identification of the accused does not disclose any information that could identify the complainant.
[2] Hourigan J.A.âs dissenting opinion was affirmed on appeal: 2024 SCC 14.
[3] See also: Joyal, Lisa, et al. Prosecuting and Defending Offences Against Children. Toronto: Emond Montgomery, 2021 at 31-32.
[4] Transcript, November 5, 2024 at p. 37.
[5] Transcript, November 5, 2024 at p. 40.
[6] Transcript, November 5, 2024 at pp. 40-41. In the abstract, I am not troubled by the young complainantâs difficulty describing how the acts occurred with his clothes on. My concern is that his difficulty ties into him potentially only seeing the accused on video.
[7] I appreciate that the complainant testified to some of the offences occurring when his mother was present. But he also testified to offences occurring when his mother had dropped him off with the accused.
[8] The complainant also said that the sexual conduct lasted â4,000 million minutesâ.
[9] E.g., Transcript, November 5, 2024 at p. 55.
[10] The June date stamp does not in fact assist on establishing when the complainantâs mother knew the accused. Given the content of the messages, they must have post-dated the charges, meaning that the date stamp refers to June 2024.
[11] Officer: âTell me about Lelandâ. Complainant: âHeâs my dad and he broke up with my momâ.