Court File and Parties

COURT FILE NO.: CR-14-75003745 DATE: 20160728 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN - and - E.G. Accused

Counsel: Monica Gharabaway, for the Crown Ryan Handlarski, for the Accused

HEARD: July 18 - 21 and 25, 2016

THORBURN J.

REASONS FOR JUDGMENT

1. Overview

[1] E.G. is charged with one count of sexual assault between July 6, 1998 and December 31, 1999. At the time of the alleged assault, the Complainant was between 15 and 16 years old.

[2] E.G. is the Complainant’s stepfather.

[3] The Crown’s only witness was the Complainant.

[4] The Complainant claims that over a period of years she was sexually assaulted. She says this began when she was ten or eleven years old and went on for years. She first reported this to police in 1998 but she says she recanted the next day after her mother took her back to the police station and told her she must recant as she was building a new life with E.G..

[5] The Complainant claims that after she recanted, E.G. moved back into the home and continued to sexually assault her in different areas of the home. The incidents stopped after she confronted him. (In her police statement in 2014 she said it was after someone moved in and there was more traffic in the house.)

[6] The Complainant moved out of the home when she was 16 years old, after her daughter was born. Thereafter, she continued to see her mother and E.G. at their home and they periodically babysat her children and took them on vacation to Jamaica a few times for long periods without the Complainant.

[7] E.G. chose to testify. He claimed the assaults did not happen. His wife (who is also the Complainant’s mother) and his daughter, K.G., testified that they lived in the house during this period and never saw E.G. assault the Complainant or mistreat her in any way. E.G.’s neighbour, C.B., said she has lived across from the G. family for years and her granddaughter played with the Complainant’s daughter there. C.B. saw E.G. look after his children and grandchildren and saw nothing unusual. C.B. spoke to the Complainant after she went to police in 1998 and just after she recanted and the Complainant told her she had not been sexually assaulted by E.G..

[8] None of the Defence witnesses has any ongoing contact with the Complainant.

[9] Timothy Moore, an expert in cognitive psychology, also testified on behalf of the defence. He testified that it is possible for a person to mistakenly believe something happened when in fact it did not. However, he could only guess whether the Complainant might have made up her allegations in this case.

2. The Law

The Essential Elements of Sexual Assault

[10] Sexual assault is established where the court is satisfied beyond a reasonable doubt that the accused touched the Complainant in a sexual way without her consent. ( R. v. Chase, (1987), [1987] 2 S.C.R. 293, 37 C.C.C. (3d) 97 at para. 11 and R. v. Litchfield, [1993] 4 S.C.R. 333, [1993] S.C.J. No. 127 at para. 7.)

The Onus of Proof

[11] Complainants have a very difficult task. They must present themselves in court and describe in detail, incidents that are intimate, embarrassing and painful. Sometimes, as in this case, they must describe incidents they say happened a very long time ago. Their credibility and the reliability of their testimony is challenged, compared and contrasted with other statements made about the alleged incidents and surrounding circumstances.

[12] As an accused person, E.G. is presumed to be innocent.

[13] If however, he is found to be guilty, he will be punished by the State and may go to jail. He will wear the stigma of being convicted of a very serious crime. The mere fact that charges have been laid may lead others to look at him in a different way.

[14] Because of these very serious consequences, our law requires that the Crown prove each of the essential elements of criminal offences including sexual assault, beyond a reasonable doubt. Beyond a reasonable doubt is closer to certainty than it is to probability. ( R. v. Lifchus, [1997] 3 S.C.R. 320 and R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 at para. 242.)

The Rules to be followed in Reviewing and Assessing the Evidence

[15] In order to decide whether the Crown has proven the charges beyond a reasonable doubt, all of the evidence should be considered, rather than assessing individual parts of the evidence in isolation. ( R. v. Morin, [1988] 2 S.C.R. 345 at para. 41, 44 C.C.C. (3d) 193). This is particularly true where the main issue is the credibility and reliability of witnesses. ( R. v. Gostick, (1999), 121 O.A.C. 355 (C.A.), 137 C.C.C. (3d) 53 at paras. 14-18 and R. v. B. (R.W.) , (1993) 40 W.A.C. 1, [1993] B.C.J. No. 758 (C.A.) at para. 28.)

[16] Credibility is a witness’ willingness to tell the truth. Reliability is the accuracy of a witness’s testimony. Accuracy is affected by the witness’s ability to observe, remember and recount events.

[17] The court must be satisfied beyond a reasonable doubt that the evidence in support of a conviction is both credible and reliable. ( R. v. J.W., 2014 ONCA 322, 316 O.A.C. 395, para. 26.)

[18] A witness whose evidence is not credible cannot give reliable evidence. However, a credible and honest witness may still be unreliable. ( R. v. Morrissey, 22 O.R. (3d) 514, [1995] O.J. No. 639 (CA) at para. 33.) The reliability of the evidence is what is most important. ( R. v. Norman (1993), 16 O.R. (3d) 295 at para. 47, 87 C.C.C. (3d) 153 (C.A.) at para. 47.)

[19] A guilty verdict may be founded on the evidence of a single witness where that evidence constitutes the bulk of the testimony on that issue. ( Regina v. Chittick, 2004 NSCA 135, [2004] N.S.J. no. 432 (C.A.) at paras. 23-25.)

[20] The Complainant’s evidence need not directly implicate the accused or confirm the Complainant's evidence in every respect but should be capable of maintaining the trier's faith in the Complainant's account. ( Kehler v. The Queen (2004), 2004 SCC 11, 181 C.C.C. (3d) 1 (S.C.C.) at paras. 5-6; Regina v. Betker, (1997), 115 C.C.C. (3d) 421 (Ont. C.A.) at 429 per Moldaver J.A. (leave to appeal refused [1998] 1 S.C.R. vi); Regina v. Michaud, [1996] 2 S.C.R. 458 at 459.)

[21] Inconsistencies in areas considered important may make a witness’ testimony unreliable. ( R. v. G.G. (1997), 115 C.C.C. (3d) 1 (Ont. C.A.) and R. v. Sanichar, 2012 ONCA 117 at para. 51.)

[22] Parts of a witness’ evidence may be accepted and others rejected and different weight may be accorded to different parts of the evidence. ( Regina v. Howe, [2005] O.J. No. 39 (C.A.) at para. 44.)

Special Consideration Regarding the Testimony of Children

[23] When the Complainant gave her first police statement claiming she had been assaulted, she was only 15 years old.

[24] Insofar as the 1998 statement is concerned, it is wrong to apply adult tests for credibility to that evidence. “Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection.” ( R. v. W. (R.), [1992] 2 SCR 122 at paras. 26 to 29.)

[25] The standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children. ( Wilson J. R. v. B. (G.), [1990] 2 S.C.R. 30, at pp. 54-55.) The presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events about which he is testifying. This does not mean of course, that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases.

Delayed Disclosure

[26] There is no presumption that victims of sexual abuse will disclose the abuse immediately or that a delay in disclosure necessarily makes it less reliable. ( R. v. D.(D.) (2000), 2000 SCC 43, 148 C.C.C. (3d) 41 (S.C.C.) at paras. 59 and 63.)

Special Rules that Apply Where the Accused Chooses to Testify

[27] E.G. was not required to testify. Because he chose to testify, he must be acquitted if his evidence is believed. If his evidence is not believed but it leaves the court with a reasonable doubt as to his guilt, he must also be acquitted. Even if he is not believed, he should only be convicted if the court is satisfied beyond a reasonable doubt that he is guilty on the basis of the evidence that is accepted. ( R. v. W.(D.), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26 at para 28), R. v. J.H.S., 2008 SCC 30 and R. v. J.J.R.D., (2006), 218 O.A.C. 37, 215 C.C.C. (3D) 252.)

[28] This rule applies to defence evidence in general, and evidence adduced by the Crown that is favourable to the defence. ( R. v. D.(B.), (2011), 2011 ONCA 51, 266 C.C.C. (3d) 197.)

[29] The purpose of this rule is to make sure that the decision as to guilt is not based on choosing between the Complainant and the accused’s evidence, but on whether, on the basis of the evidence as a whole, the trier of fact has a reasonable doubt as to the accused’s guilt. ( R. v. Y. (C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5 and R. v. Vuradin, 2013 SCC 38 at para. 21, [2013] 2 S.C.R. 639.).

[30] Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings. It is not necessary for the court to believe the defence evidence on a vital issue; it is sufficient if – viewed in the context of all of the evidence – the conflicting evidence leaves them in a state of reasonable doubt as to the accused’s guilt: Challice. If so, they must acquit.

3. Analysis of the Evidence

[31] The Complainant is now 33 years old. She claims the assaults happened when she was 15 or 16 years old.

[32] The accused, E.G., is a 50-year old man with no criminal record.

[33] The Complainant is E.G.’s stepdaughter.

[34] E.G. met the Complainant’s mother, G.M., while they were living in Jamaica. G.M. moved to Canada for a better life and left E.G. alone with the Complainant and her sister in Jamaica for two years. The Complainant came to Canada in 1994 when she was 10 years old. E.G. came a few months later.

Atmosphere in the Home

[35] At the time of the alleged assaults they all lived together in a four-bedroom unit in northwest Toronto.

[36] The Complainant says she thinks she shared a room with her younger sister, Ka., who has the mental ability of a 12-year old or younger. She says she was often left alone with E.G. and her two sisters.

[37] E.G. testified that he and his wife were in one room, the Complainant had her own room until E.G.’s son J.1 was older, and the other two rooms were occupied by other family members. There were often other family members or friends that stayed over.

[38] E.G., G.M. and K.G. all described the atmosphere in the home to be positive. C.B., a neighbour whose grandchild played with the Complainant’s daughter, testified that E.G. was the caregiver for the children, he cooked for them and he was always there. When the children fell, he took care of them, he told them when to come inside and she heard them talk and laugh all the time.

Abusive Behaviour toward the Complainant

[39] The Complainant alleged that E.G. referred to her as a “slut” or “bitch”, deprived her of food, followed her to school, did not allow her to have friends over, beat her, taped her telephone calls and left condoms hidden all over the house.

[40] E.G. denied all of these allegations. He said the Complainant had friends over and one lived with them for a few months. He said he only went to the school when she was in trouble at school. He said they had an answering machine that sometimes records for one or two minutes after someone picks up the telephone but denied there was any intention to record the Complainant’s calls.

[41] E.G.’s evidence in response to these allegations was corroborated by his wife, G.M., and his daughter, K.G., both of whom lived in the home.

[42] E.G. said that while the Complainant lived in the home and thereafter, he put a board across the front threshold inside the front door at night, as they lived in a dangerous neighborhood and this would prevent break-ins. E.G. denied he did this to prevent the Complainant from leaving the home.

[43] G.M. had no recollection that a board was placed in front of the door at night and Ms. G. said there was a board placed in front of the door at night for safety reasons, but only after the Complainant had left the home.

The Assaults and the 1998 Police Statement

[44] At trial and in her 2014 Statement to police, the Complainant testified that before the first assault took place, E.G. gave her headache medication. She went to sleep. She woke up with the pressure of someone on her. E.G. was trying to have sexual intercourse with her. She remembers feeling the pressure of someone on her. She doesn’t remember him coming in or getting undressed. She said “I push I push I push but he wouldn’t move.” The Complainant was not sure whether she was alone in her bedroom or whether her sister was also there. At some point he got off of her and she noticed blood on the sheets.

[45] By contrast, in her July 4 1998 statement to police she said: E.G. was wearing his boxers. She opened her eyes. He took his clothes off. He lifted her nightgown up and assaulted her. She said, “I just started pushing him off and then he got off.” She told police her sister was next to her.

[46] The Complainant acknowledged at trial that she did not remember most of the incidents very well. She said that many of the memories came to her by flashbacks.

[47] She testified that she did not remember if her brother, D., or her mother were ever home when the alleged assaults took place. She later said there were occasions when her mother might have been home.

[48] In her 2014 statement to police she said that, “if my brother was upstairs and he’d have me downstairs” and, “He would do these things while my mom, if my mom is upstairs or downstairs.”

[49] She told police that the frequency of the assaults depended on who was in the house and the flow of traffic in the house. She claimed however that the abuse was frequent.

[50] The Complainant told her stepmother who called the police. She was taken to the police station where she gave a statement to police about the assaults and E.G. was arrested.

[51] E.G. denied the assaults.

Recantation

[52] The Complainant testified that after she came home from the police station, all the ladies in the community got together in her mother’s living room. After everyone left, her mother said she was pregnant, she had just started her life with E.G., and the Complainant would have to go back to the police and say it was not true.

[53] After her mother told her to tell police it was not true, the Complainant felt she had no choice but to recant. She went back to the police with her mother and told police that what she had told them the day before was not true. She said she recanted because her mother told her to.

[54] E.G. said his relationship with the Complainant was fine until the Complainant went to the police in 1998. E.G. said that when he asked her why she did this she said that she did not want to go to school so she made up this allegation and told her aunt who telephoned police.

[55] G.M. testified that after her husband was arrested, she found her daughter and said, “Is this true?” She told her daughter that she could tell her anything as she loves her daughter and would not protect her husband to the detriment of her daughter. G.M. said her daughter told her it was not true and her daughter has never told her that the allegation was true. E.G. and G.M. said they did not know why the Complainant recanted.

[56] C.B. testified that when the Complainant first made the allegation, she spoke to her alone and said she would believe the Complainant if she said it was true. The Complainant said E.G. did not touch her but when she came in, he looked at her so she told police she had been sexually assaulted.

Discussion of the Charges to Neighbours

[57] The Complainant testified that E.G. and G.M. told everyone in the neighbourhood that the charges were not true.

[58] E.G. said he told no one about the charges as he was very embarrassed about the allegations. He later said that in speaking to a few people, he told them he did not do it as he felt a cloud of shame. The charges were withdrawn after the Complainant recanted the following day. G.M. denied that she told anyone about the charges.

[59] E.G. acknowledged that he was upset about the allegation but he forgave the Complainant because she was “just a kid” and because she was his daughter. He said the relationship normalized after a while. This was corroborated by G.M..

E.G.’s Behaviour after the Recantation

[60] The Complainant testified that after she recanted, the accused moved back into the home. She also testified that after her stepmother called police, she was no longer allowed to see her stepmother.

[61] The Complainant claimed E.G. said “I told you no one would believe you” and he sexually assaulted her more often.

[62] At trial, she testified that he would choose a time when only she and Ka. were at home with him. He would close the door and put a board by the door. He would then have sex with her by putting his penis into her vagina.

[63] She said she was angry. She didn’t say or do anything. She got to a point where her body was immune from the assaults.

[64] She testified that sometime when she was 15 or 16, her brother D. came into the house. E.G. was touching her in places he was not supposed to (her buttocks and breasts). It was embarrassing. D. came in right after it happened. She was angry and crying. She told D. what had happened. They were all swearing and they began fighting in the street. D. was angry with E.G.. (In her 2014 statement to police the Complainant said the assaults stopped because J.2 moved in and there was more traffic in the house.)

[65] E.G. denied this and D. did not testify.

[66] After that, E.G. did not sexually assault her any more. However, since he couldn’t do certain things, he started “cussing” her and called her names. She rebelled. After that E.G. no longer assaulted her but subjected her to verbal abuse.

2014 Allegation

[67] The Complainant said that after years of therapy, she went back to police because she knew what he did to her was wrong. A lot of stuff was going on inside of her. She had a lot of anger. She decided she had a voice of her own now.

[68] She told her mother she was going to reopen the case before she did it and her mother didn’t say anything.

[69] The Complainant testified that after she went to police in 2014, she didn’t have a relationship with her mother. Her mother abandoned her.

[70] E.G. said he was arrested in 2014 and has had no contact with the Complainant since that time.

[71] G.M. testified that just before her daughter went to police in 2014, there was a family fight.

[72] Her son, D., was fighting with her daughter, K.G., who was pregnant at the time. D. was on bail and was to keep the peace. Instead he got into an argument with K.G., had her in a headlock and was involved in a physical altercation with her.

[73] G.M. said she found out about this when she received a telephone call from E.G. asking her to come home and telling her what had happened. At the time, G.M. was shopping with the Complainant for a graduation dress for the Complainant’s daughter. When she received the call from E.G., she told the Complainant she had to leave right away and the Complainant was angry that the shopping trip had been cut short. When they stopped at a stop sign, the Complainant screamed and got out of the car.

[74] K.G. testified that she and her brother had a fight while her mother and the Complainant were shopping. When the Complainant got home she started swearing saying her mother was stressing again and that her father preferred his biological children to her.

Contact with the Complainant after the 2014 Police Statement

[75] E.G. has had no contact with the Complainant since she made her statement to police in 2014 alleging that she was in fact sexually assaulted by him over a period of years.

[76] G.M. said that she tried to call her daughter many times after she again made the allegation to police in 2014. The Complainant has not returned her calls and they have had no contact.

[77] None of the family sees the Complainant except for her brother, D..

Complainant Left her Children in the Care of her mother and E.G.

[78] The Complainant swore an affidavit in 2006 giving her mother permission to take her children out of the country.

[79] E.G. said that beginning in 2000 to 2012, the family would go to Jamaica in the summer for extended periods. On several occasions, the Complainant’s children went with him and his wife and without the Complainant. In 2006, it was for much of the summer. Moreover, he has babysat them since they were born and did so until he was arrested on these charges in 2014.

[80] C.B. testified that she often saw the Complainant’s children in the backyard in E.G.’s care as her grandchild played with them at E.G.’s house.

[81] E.G. testified that he continues to live with his wife and other daughter and her children and has a relationship with his other children.

4. Analysis and Conclusion

[82] Since E.G. testified I must begin by reviewing the Defence evidence to see if it raises a reasonable doubt as to his guilt.

[83] There are no witnesses to the alleged assaults nor is there any other corroborative evidence of the assaults.

[84] E.G. testified that the assaults did not happen.

[85] There is no evidence to corroborate the other serious allegations that E.G. was otherwise abusive over a period of years.

[86] E.G., G.M. and K.G. denied the Complainant’s serious allegations that E.G. was abusive to the Complainant by doing things such as locking away food, preventing her from going out or having friends in, beating her and insulting her or that he did so to the other girls in the house for years. This is corroborated by their neighbour, C.B., whose grandchild played with the Complainant’s children while they were at the home and who observed nothing untoward.

[87] G.M., Ms. G. and C.B. portrayed E.G. in a very different light: as a person who cooked, organized family shopping trips, and who took care of the children and grandchildren often, and someone in whom the Complainant herself entrusted her children.

[88] The Complainant continued to return to the home after moving to her own home until 2014.

[89] The Complainant’s behaviour in often leaving her children with E.G. and her mother in Toronto and allowing them to take her children out of the country given her depiction of him as verbally, physically abusive and a sexual predator, is troubling. She told police in 2014 that “I would not even leave a butterfly around him.”

[90] The fact that she was less than forthright about this fact is also troubling.

[91] At first she said the affidavit only provided that her mother could take the children to Jamaica. She then conceded that E.G. in fact was also present. She then said she only let them go to Jamaica for a few days but later acknowledged they were there most of the summer of 2006 and she had no access to her children.

[92] It is possible to convict on the basis of the Complainant’s testimony alone.

[93] I agree with the Crown that the fact that the Complainant took time to come forward and the fact that she may not remember lesser details about the alleged assaults does not render her testimony less reliable. Nor is it impossible that the assaults took place simply because no one else observed the alleged frequent assaults.

[94] I also accept that the Defence witnesses did not agree as to whether there was a board in front of the door. However, all of the Defence witnesses agreed that if there was a board, it was there at night and all of the witnesses including the Complainant said some occupants of the home were free to come and go as they chose. I therefore do not find this one point to materially affect the credibility of the Defence case.

[95] It is undoubtedly difficult to testify in a public forum about traumatic and deeply personal events and victims may react differently and remember different things about the assaults.

[96] However, on the evidence available to me, for the reasons set out above, I am not satisfied beyond a reasonable doubt that the assaults occurred, and therefore find E.G. not guilty.

Thorburn J. Released: July 28, 2016