ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
C. Presswood for the Crown
- and -
P.C.
D. Brown, for the defence
HEARD: June 14, 15, 16, 2017, at Brampton
REASONS FOR JUDGMENT
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
André J.
1P.C. was charged with sexually assaulting D.D. between May 1, 1986 and August 31, 1986 in the City of Brampton, contrary to s. 246.1(1) of the Criminal Code of Canada. P.C. has pled not guilty to the charge.
SUMMARY OF THE EVIDENCE
2D.D. was born in Kuwait. He came to Canada with his family in 1985 and settled in Brampton. His family regularly visited the family of his mother’s sister who lived in the northeastern part of the city. D.D. spent a great deal of time at his aunt’s residence. His aunt’s family also owned a restaurant where D.D. worked for approximately eight years.
3D.D. testified that between May and August 1986, P.C. who is his first cousin, sexually assaulted him on two consecutive Fridays. In the first incident, P.C. asked D.D.’s parents if he could take D.D. for a bike ride. D.D. recalled being very excited at the request. He was then 11 years old. P.C. was nine years older than him.
4He then went riding with P.C. in the evening after dinner. The bicycle was an orange Raleigh Chopper which D.D. distinctly remembered. He sat on the “tobacco” seat in front of P.C.
5P.C. rode to an unfinished house in the neighbourhood. They went inside the building. At one point D.D. turned around while he was still on the bicycle. He saw P.C.’s penis close to his face. P.C. placed his penis into D.D.’s mouth. D.D. testified that he could still recall the “salty fishy penis in my face.” He asked P.C. “what’s this?” P.C. replied: “It’s a surprise.” D.D. testified that P.C.’s penis was in his mouth for a few seconds.
6P.C. then proceeded to pull D.D.’s pants down and rubbed his penis in D.D.’s “butt cheeks.” P.C. kept rubbing his penis “back and forth.” This lasted a few minutes.
7Afterwards, the two rode back to P.C.’s home. On the way home P.C. told D.D. that what happened would be “our little secret”. D.D. did not disclose the incident to anyone.
8The two boys rode to the same building the following Friday. D.D. testified that what happened was “almost a carbon copy of the week before.” Before going with P.C., he recalled holding onto his mother’s leg and telling her that he did not wish to go. She prompted him to go riding with P.C.
9At the house P.C. placed his penis in D.D.’s face and then into his mouth. The bicycle was on the ground. P.C. kept his penis in D.D.’s mouth for a minute or two. He then rubbed his penis against D.D.’s buttocks. P.C. again said that what happened was “our little secret.”
10The two returned home. D.D. visited P.C.’s home on many occasions afterwards. He never disclosed what had happened.
11D.D. started to work at his aunt’s family restaurant five years later, when he was 16-years-old. He worked there for eight years. During this period P.C. managed the restaurant. P.C. never discussed the incidents. However, P.C. would make perverted telephone calls to D.D. while the latter was alone at his home. P.C. made comments such as: “I want to jack you off” and “I want to fuck your dog.” D.D. would tell P.C. to “fuck off.” These calls only stopped when D.D.’s father died in 1994. There were hundreds if not thousands of calls, D.D. testified.
12On one occasion between 1990 and 1997, P.C. asked D.D. if he remembered what they had done at the construction site. D.D. wondered whether the incidents really happened. D.D. replied that he did not. D.D. got another restaurant job in 1997/1998.
13D.D.’s first recollection of the sexual abuse occurred in 2010. He met his family at a Swiss Chalet restaurant. His sister had an album with family photographs. He saw a picture of P.C.
14He later travelled to Jamaica with his wife. He started to be disagreeable with her. He then told her about the abuse but only told her that he had experienced “some weird touching.”
15D.D. was diagnosed with anxiety and depression in 2010. He saw a psychiatrist who concluded that D.D. was suffering from Post-Traumatic Stress Disorder (PTSD). The psychiatrist assisted him in finding the cause of D.D.’s PTSD by relating it back to the alleged sexual abuse in 1986.
16Another incident in November 2014 helped refresh D.D.’s memory about the abuse. He saw his son holding onto his wife’s leg. He asked his sister for a Christmas card list. He found out that P.C. was living at the family where there was a 15-year-old. D.D. feared that P.C. would sexually abuse this young person. He contacted P.C.’s father and then the police. He spoke to Cst. Walkey over the phone in November 2014. He then emailed his family and friends about the alleged abuse. He gave Cst. Walkey copies of all of these emails. He further spoke to Cst. Heron in April 2015.
17D.D.’s mother, S.D., had no recollection of her family owning an orange Raleigh bicycle or any other bicycle in Brampton. She had no recollection of P.C. and D.D. playing together or P.C. being alone with D.D. Neither did she have any recollection of P.C. and D.D. going riding after dinner.
18P.C. denied owning a bicycle in Brampton. His family, who came to Canada from Kuwait in 1981, owned bicycles in Kuwait but not in Canada. In 1972, P.C.’s father ordered bicycles from England. One was given to a neighbour and the other was given to D.D.’s family the year before P.C.’s family left Kuwait. P.C. earned a driver’s licence when he was 16 years old and did not ride a bicycle in Canada. He denied ever making harassing calls to D.D. He reduced D.D.’s work hours because of D.D.’s job performance. D.D. was not pleased about this and communicated his displeasure to P.C.’s father.
ANALYSIS
19The Crown bears the burden of proving P.C.’s guilt beyond a reasonable doubt. In cases where the credibility of the witnesses is determinative of the guilt or innocence of the accused, the Supreme Court of Canada’s decision: R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, provides an analytical framework to determine whether the Crown has met its evidentiary burden:
(1) If the court believes the accused, then he should be acquitted;
(2) If the court disbelieves the accused’s evidence; but is left in a state of reasonable doubt by it, he should be acquitted;
(3) Even if the court disbelieves the accused’s evidence and is not left in a reasonable doubt by it, the court must nevertheless be satisfied of his guilt beyond a reasonable doubt, based on a totality of evidence it accepts.
20P.C. testified in a calm and clear manner. He consistently denied the allegations and was never shaken in cross-examination. There were no inconsistencies in his testimony. It did not appear that he had tailored his evidence in a self-serving manner. He maintained that he never rode a bicycle in Canada and that at the time of the alleged offence, he had a driver’s licence. His evidence that he did not own a bicycle in Canada was partially corroborated by D.D.’s mother who had no recollection of the family owning a bicycle in Canada or of D.D. going on a bike ride with P.C.
21P.C. also denied making any derogatory calls to D.D. His testimony is corroborated by D.D.’s mother who testified that she remained at home when D.D. was in high school and that D.D. did not come home for lunch while a high school student and was never at home alone.
22P.C.’s evidence that given the age difference between himself and D.D., he never played with his cousin alone, was also corroborated by S.D.’s testimony that she had no recollection of P.C. and D.D. ever being alone.
23Crown counsel concedes that there were “no obvious flaws” in P.C.’s evidence. However, he relies on the cases of R. v. C.F., 2017 ONCA 480, 2017 CarswellOnt 9000, and R. v. J.J.R.D., 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), for the proposition that despite this, P.C. could nevertheless be found guilty of the offence he has been charged with
24In C.F., the Court of Appeal considered whether the trial judge erred in her treatment of evidence called by the appellant in his trial. Of the trial judge’s assessment of credibility, the Court of Appeal noted at para. 35 that:
She emphasized that she was not simply choosing between evidence given by the other witnesses and the appellant's testimony, and that the onus was on the Crown to establish guilt beyond a reasonable doubt. She noted that acceptance of compelling evidence of a complainant may provide a reasonable basis for rejecting an accused's denial of allegations: R. v. J.J.R.D., 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252, leave to appeal refused, [2007] S.C.C.A. No. 69.
(Emphasis added)
25In J.J.R.D., Doherty J.A. noted at para. 53 that:
An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.
26These statements by the Court of Appeal in C.F. and J.J.R.D. are entirely consistent with the Supreme Court of Canada decision in R. v. W.(D.). The decisions essentially hold that an accused’s guilt must be established beyond a reasonable doubt. Further, the decisions hold that a considered and reasoned acceptance beyond a reasonable doubt of evidence which conflicts with that of the accused, provides a sufficient explanation for the rejection of the accused’s evidence. The question then becomes whether I can reject P.C.’s evidence “based on a considered and reasonable acceptance beyond a reasonable doubt” of D.D.’s evidence.
27Before assessing D.D.’s evidence, it is necessary to refer to a few cases which are applicable to this trial. In R. v. H.P.S., 2012 ONCA 117, [2012] O.J. No. 748, the Court of Appeal at para. 69 reiterated an important distinction between the credibility and reliability of a witness’ testimony:
I accept that reliability is not the same as credibility; that is well established. Credibility has to do with the honesty or veracity of a witness' testimony. Reliability has to do with the accuracy of a witness' testimony.
28The court noted further at para. 70: “The reliability of a witness' testimony is often gauged by the witness's ability to observe, recall and recount the events at issue: see also R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 41.”
29D.D. is now 42 years old. He presented as a sincere witness who passionately believes that P.C. sexually assaulted him in the manner he described. Despite this, I have grave concerns regarding the reliability of D.D.’s testimony because of the following:
Inconsistencies between D.D.’s testimony in-chief, his testimony at the preliminary hearing and his statement to Constable Walkey.
D.D.’s admission that he gave perjurious testimony in a prior proceeding.
D.D.’s feelings towards P.C.
D.D.’s retrieved memories about the alleged incidents.
Inconsistencies
30D.D. testified that he had little or no relationship with P.C. prior to May 1986. Despite this, P.C. who was 9 years his senior, took him on a bike ride and proceeded to sexually assault him.
31Second, D.D. testified that in the first incident, P.C. placed his penis in his mouth and rubbed his penis in his buttocks. However, in his statement to Cst. Walkey, D.D. made no mention of P.C. rubbing his penis against his buttocks.
32Third, D.D. told Cst. Walkey that P.C. had asked him to touch his penis. However, he told Cst. Heron that P.C. did not ask him to do so.
33Fourth, D.D. told Cst. Heron that he pushed P.C. away during the first incident; however he testified in the trial that he did not know how the oral sex ended.
34Fifth, D.D. testified at the preliminary hearing that between the two impugned acts in the first incident, P.C. told him that it was “their secret”. However, D.D. testified that P.C. said that to him when they were riding on the way home. Additionally, he testified at the preliminary hearing that P.C. said nothing to him on the ride home.
35Sixth, D.D. testified during the trial that during the first incident he recalled P.C. pulling down D.D.’s pants. However, he testified at the preliminary hearing that he had no memory of P.C. doing this.
36Seventh, D.D. testified that the sight of his son pulling on his mother’s leg triggered his memory of hiding behind his own mother’s leg when P.C. asked on a second occasion to take him on a bicycle ride. Significantly however, D.D. made no mention of this triggering event when he spoke to Cst. Heron or during his testimony at the preliminary hearing.
37Eighth, in his May 23, 2015 statement to Cst. Heron, D.D. said that P.C. would have had to ask his parents’ permission to take D.D. for a ride. He testified however, that he specifically remembered P.C. asking his parents’ permission to do so.
38Ninth, D.D. testified that the incidents were on the two successive Fridays. He told Cst. Walkey however, that the second incident was two weeks to a month following the first incident.
39Tenth, D.D. testified that the second incident was a carbon copy of the other while Cst. Walkey testified that the two incidents which D.D. described to him were different; not identical.
40Eleventh, D.D. testified that P.C. made hundreds if not thousands of calls to him at his home. D.D.’s mother however, testified that D.D. would not have been at home alone and that she was a stay home mother at the time.
41Individually, these inconsistencies may not amount to anything. Indeed, given that D.D. is recalling alleged incidents which occurred over thirty years ago, I would expect that there would be some discrepancies between his trial testimony and previous statements given to police officers. On the other hand, the number of these discrepancies, some of which, such as whether P.C. owned or rode a bicycle in 1986, goes to the very heart of the reliability of D.D.’s testimony.
Perjurious Testimony
42D.D. testified in-chief that he had turned over to Cst. Heron all the emails he had sent to his family members concerning the alleged sexual assaults. When pressed in cross-examination however, he admitted that he had lied about this. He admitted that there were some emails he had not turned over to Cst. Heron because they cast a negative light on him.
43One of these emails contained a poster with the word “Warning” under which is a picture of P.C. It indicates: “My Child Molester P.C.” It states that: “P preys on innocent kids!” and that “His parents support & enable his behaviour.”
44D.D. also agreed that he deliberately left out vulgar emails he sent to his relatives when he testified at the preliminary hearing. He admitted that he lied at the hearing about sending them.
Attitude Towards P.C.
45These emails betray D.D.’s acknowledged hatred of P.C. and indeed of his own mother. This hatred emerged during his testimony. He referred to P.C. as a “disgusting pervert” and a “sick pervert.” He said that he hated his mother for agreeing to have P.C. take him on a bicycle ride. In my view, D.D.’s hatred of P.C. is another factor which adversely impacts the reliability of his testimony.
Recovered Memory
46D.D. testified in cross-examination that his “memory of the whole only came when he was 40.” He also testified that his psychiatrist assisted him in remembering what transpired in the summer of 1986.
47In R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R 122, the Supreme Court of Canada described how to assess the evidence of an adult when testifying about incidents that allegedly occurred when she was a child. The court stated at page 134 that:
In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, 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 to which she is testifying.
48Marc Rosenberg (later Mr. Justice Rosenberg of the Ontario Court of Appeal), in a 1995 Canadian Appellate Court Seminar, also sounded a note of caution about the frailties of repressed memory of childhood events. He noted at para. 90 of his article (the Crown consented to Defence counsel’s reliance on it) that:
In my view, the particular frailties of repressed memory of childhood events require that, as a matter of practice, the trier of fact be warned that it is dangerous to act upon the recovered memory alone. So far as I am aware, there are no scientifically accepted internal criteria or standards by which a trier of fact can distinguish between accurate recollections and false or mistaken allegations. Accordingly, the trier of fact must be warned to look for objective evidence and that otherwise there are no means to distinguish reliably between a memory of an actual event and a fantasy. The objective evidence need not be corroboration in the strict sense, but there should be some evidence that restores the trier’s trust in the reliability of the witness’s memory.
49Is there some evidence in this case that restores the trier’s trust in the reliability of D.D.’s memory? In my view, such evidence is conspicuous by its absence. There is no evidence that P.C. owned or rode a bicycle in 1986. There is no objective evidence of the hundreds or thousands of calls allegedly made by P.C. to D.D. To the contrary, S.D.’s testimony raises serious concerns regarding the reliability of this evidence.
50D.D. may have been mistaken about when P.C. told him that the incident was their secret. He may have been mistaken about the colour of the bicycle. He may also have been mistaken about other minor details. But if the evidence calls into question whether the alleged incidents occurred, then the court has no option but to conclude that D.D.’s testimony was sufficiently unreliable so as to justify a conclusion that it would be dangerous to convict P.C. based on that evidence.
CONCLUSION
51For the above reasons, the charge is dismissed.
André J.
Released: July 20, 2017
CITATION: R. v. P.C., 2017 ONSC 4435
COURT FILE NO.: CR-16-1534-00
DATE: 20170720
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
P.C.
REASONS FOR JUDGMENT
André J.
Released: July 20, 2017
