CITATION: R. v. T.B., 2018 ONSC 4464
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
T.B.
Defendant
Warren Milko, for the Crown
Sandee Smordin, for the Defendant
HEARD: July 9, 10, 12, and 13, 2018
THE PUBLICATION OF ANY INFORMATION CONTAINED HEREIN WHICH MAY DISCLOSE THE IDENTITY OF THE COMPLAINANT IS PROHIBITED FROM PUBLICATION PURSUANT TO AN ORDER MADE BY THE COURT UNDER S. 486.4(1) OF THE CRIMINAL CODE OF CANADA AT THE OUTSET OF TRIAL ON JULY 9, 2018.
REASONS FOR JUDGMENT
Turnbull, J.
1The defendant has pled not guilty to a charge of inviting a minor to participate in a sexual act contrary to s. 152 of the Criminal Code of Canada (CCC). The complainant A is his niece, who was just three or four when this offence allegedly took place. She is presently 21 years old.
Overview of the Crown’s Evidence:
Evidence of A:
2A testified that when she was three or four years of age, she and her twin sister B used to go to her paternal grandparents’ home once a week to be babysat while their parents were at work. The defendant is the son of the paternal grandparents and was living at his parents’ home at the time of the alleged incident. I should add that the evidence indicates this babysitting regime commenced immediately after Labour Day in 2001 when A and B were four years old.
3Much of A’s evidence was received through a DVD video shown to the court. It recorded an interview given by A to the police in July 2004 when she was seven years old. In it, a very shy, innocent little girl explained to the police officer that she had been asked by her uncle (the defendant) to put his penis in her mouth when she was being babysat at the home where he lived.
4The defendant had an apartment in the basement of his parents’ home. His son lived in the same house from time to time and had his own separate bedroom on the main floor level of the house. A remembered that in the defendant’s basement apartment, there was a separate bedroom, a washroom and a living area.
5In 2004, when she then was seven years of age, the offence alleged in this indictment became known to her parents. They contacted the police and as a result, A was brought to the police station for an interview by Detective Mueller in the presence of a CAS worker. Quite appropriately, both these people were female professionals to make A feel as comfortable as possible. She was asked a number of questions relating to this allegation and it was videotaped. On consent, a portion of that videotape was entered as exhibit 4 and the transcript of part of the interview viewed by the court was entered as exhibit 1. That video was entered in evidence on consent of counsel. A watched it as it was played during the trial and adopted it as her statement which was truthfully given by her.
6During the taped police interview, A stated that she understood she was to tell the truth. She stated that on one occasion her uncle, the defendant, was “bare naked” and sitting on his bed. He asked her to put his “winkie” in her mouth and assured her that his “then” girlfriend who the complainant liked, often did the same thing. She proceeded to put his penis in her mouth but testified that her mouth was too small and she was only able to insert the tip of his penis into her mouth. When she could go no further, she withdrew and ran upstairs. She made no complaint to anyone about what had transpired until approximately two or three years later when it was incidentally raised in a conversation with another adult named L.W..
7During the questioning by the police officer, A was asked to draw a picture of a winkie in her notebook. That page of the detective’s notebook was entered as exhibit 2. She further said she did not kiss his winkie and to demonstrate what she did, she put her fingers in her mouth to demonstrate what she did with his winkie. She estimated the whole incident lasted just a few seconds.
8During her testimony before this court, A believed that the defendant was standing right in front of her when he told her his girlfriend did it all the time. In her cross-examination, A was certain he said those words and remained unshaken in her testimony despite a vigorous cross-examination by Ms. Smordin. She further agreed that she was not sure if she did run upstairs at the time the sexual act was completed. She recalled that when she could not fit his penis in her mouth, she looked up at him and giggled because she could not do what he had asked her to do. She stated that she did not know the sexual purpose of a penis at that time nor that what she was being asked to do was a “bad thing”.
9A recalled that other than that incident, she remembered seeing the defendant naked on other occasions. On at least one occasion, they played “dress up” and as he pranced around the room with distinctive hand gestures beside his head as if he were a fashion model walking on a catwalk, he would urge her to pick out clothes for him. She also recalled him wearing a speedo type underwear on one occasion.
10On another occasion, she testified that she and her sister B were in his bedroom when he was naked. A said that he was pretending to be asleep and she and her sister did not do anything other than sit on the edge of his bed. She did not consider it abnormal as she had seen him naked in his home on a handful of occasions. Her sister B had a different recollection of this incident or a similar one in his bedroom. B stated that she and her sister snuck into the upstairs bedroom where the defendant was sleeping in his son’s room. They put their hands under the blanket and touched his penis. He pretended to be asleep but B did not believe he was asleep.
11A testified that when she disclosed the incident about placing his penis in her mouth to a lady in Brantford named L.W., it was not long after that her parents spoke to her about the matter. Shortly thereafter she was interviewed by the police. She was emphatic that her parents did not tell her what to say and simply indicated to her that they would support her.
12A said that when she was around 10 years old she actually figured out what had happened to her and realized that this should not have happened. At that time, she said she felt it was “gross” that it happened and that it had a sexual purpose.
13It started to really affect her in high school and she began to suffer from anxiety and depression when she would see her uncle at the school with his children. In 2015, she had an anxiety attack at school and she reached out to speak to the police once again. She met with Detective McKenzie on April 27, 2015 and gave a statement to him about the matter. At that time, she was 18 years old and her paternal grandmother had just died in March of 2015. She denied waiting to go to the police until her grandmother, a potential witness for the defendant, was dead.
14In her cross-examination, she agreed that the defendant did not threaten her in any way after the alleged incident to not say anything to anyone. She agreed that there was nothing to stop her from going upstairs and telling her grandmother but she just did not do it. However, she recalled that she never felt close to her paternal grandparents and described them as being gross people who smelled and had greasy hair. She did not recall ever kissing them but agreed she may have hugged them from time to time. A agreed that her grandmother never believed her story when it was ultimately divulged and never spoke to her about it. She has no recollection of being chastised by her grandmother for harassing her cousin T. Jr. and taking down his pants.
15A testified that when she told L.W. about the incident, she did not tell her that the defendant had urged her to touch his “pp” but she did not do it. That contradicts L.W.’s recollection as given in her evidence.
16She denied that she ever went to the defendant’s home after school one day in 2011 or 2012 and had supper with him, his wife and his stepdaughter M.. She recalled playing football near her high school on one occasion when M. was present. The defendant’s son T. Jr. was also playing as they always had a good relationship. In fact, he worked with her father for a while in his business. She was emphatic that she did not speak to the defendant on that occasion nor eat with him and his family. That is directly contradicted by the defendant and his stepdaughter.
Evidence of L.W.:
17L.W. has been a registered nurse for 24 years. She lived in a house next to the insurance office of the complainant’s father. Sometimes, the children would wander over to her yard to play, feed the birds or chipmunks or visit with L.W. in her home. L.W. stated that on one occasion, as she was sitting with A and B while they did some colouring, A said that “Uncle T. asked me to kiss his pp”. L.W. said there was nothing which lead to that topic being broached. As she said it, A appeared to be calm and comfortable. Despite her shock, L.W. asked A if she had done it and A said no. B did not say anything and only reacted a couple of times by looking up during the discussion. When asked by L.W., B denied any similar experience. A indicated that she had never told anyone about this alleged occurrence.
18L.W. immediately telephoned A’s father who was working next door. They met and she asked A to repeat to him what she had said. Ms. White recalled that she did so, after which her father talked to her for a while. L.W. suggested that he call the CAS and the police because otherwise, she would be obliged professionally and legally to do it. That was the last interaction she recalled having with A and B.
19During her cross-examination, L.W. stated that A’s recollection was incorrect that she was talking to B to elicit information from her while A was in the washroom.
20Ordinarily, out of court prior consistent statements of a witness are not admissible in evidence. Counsel agreed that A’s statement to L.W. was essential to the narrative to explain how the alleged incident ultimately came to the attention of her parents and the police. As Doherty J.A. stated in R. v. T. (W.P.) (1993), 1993 CanLII 3427 (ON CA), 14 O.R. (3d) 225 (C.A.) at page 255:
The common law starts from the premise that evidence of prior consistent statements made by witnesses is, at worst, irrelevant and, at best, superfluous. Where, however, circumstance render evidence of prior consistent statements of potential significance to the trier of fact, either with respect to the credibility of the declarant/witness or with respect to a fact in issue, the common law admits those statements.
21In respect of A’s statement I have found that not only is it a necessary part of the narrative, but it is also relevant to the credibility and reliability of A’s evidence with respect to what, if anything, occurred to her at the hands of her uncle.
Evidence of B:
22B stated quite candidly that she was able to remember a little bit of her life between the age of three and seven. At that time, she and her sister were living with their mother and father. She had little recollection of her paternal grandparents being involved in her life. She did remember them picking her up from school once per week and taking her and her sister to their home. There she remembered playing games with her uncle, the accused, and she was not fond of him. She did not like some of the games they played as they caused her nightmares.
23She vaguely recalled that he had a basement apartment in her grandparents’ home. She remembered some of the decorations, including beige walls and a statue of a giraffe. The defendant strongly denied he ever had such a statue in his apartment. He did agree with B’s recollection that he had a girlfriend named K. but she did not recall talking to her nor how she felt about her.
24T. Jr., the defendant’s son, also lived in that home in Ancaster.
25B confirmed that she saw the defendant naked in the house three or four times when he was wearing no clothing on his upper or lower body. On another occasion he was walking naked around the house, but she did not recall anything happening on that occasion. On one or more occasions, he was napping. One time when he was sleeping in his son’s bedroom with a cover over him, she recalled that there was “touching” of his genitals involved and she and her sister did not know that such conduct was “bad”. She stated that they touched his penis and he did not move when they did it. She recalled that she and A thought it was funny because they had never done it to anyone else before and they had no idea of the sexual nature of the act at that young age. To the best of her recollection, there was no other physical contact with him when he was naked.
26She was unable to recall any discussion with L.W. about these incidents but learned later that her sister had discussed them with L.W..
27In cross-examination, she stated that in her memory she could see the defendant nude in the confines of the house. She stated that as she grew up, she saw no other adults naked in her home around her and hence, those moments of being exposed to his nudity stuck with her. She recalled some of these incidents left them “grossed out” and a bit scared.
28B agreed that there was never any sexually inappropriate behaviour directed at her by the defendant. She had no recollection of ever being told by her grandparents that it was inappropriate to go into a bedroom to touch people.
29While she was unable to recall how many times she and A were in the basement of the house, she was emphatic that the defendant did own a statue of a giraffe and she believed it was located in the basement.
Evidence of the Father of A and B: W. Jr.:
30The 50 year old father of A and B, who is the defendant’s brother, testified that he first learned of the alleged offence when L.W. called him to come over to her home. He recalled that they met in the common alley between their properties and had a conversation which only lasted two or three minutes. L.W. explained to him that she was talking with the children and when she mentioned that she was a nurse who worked with children, A asked if she could tell her something. His recollection was that L.W. said that A had told her that she went into the basement apartment where the defendant resided. He was on his bed and allegedly asked her to touch his penis. He never recalled L.W. telling him that A had said she did not do it.
31The father testified that he was quite taken aback when this was related to him. He first called his wife. He then called his mother who stated that it simply was not possible that such a thing had occurred.
32The police were contacted which led to A and B being interviewed by the police. In due course, the case was closed. It was his assumption that the police and the Crown considered the matter and determined charges against the defendant should not proceed. He understood that there was a lack of evidence and no corroborating evidence and on that basis, the police decided to close the case.
33At one stage several years later, A told him that when she was 18 and his mother was dead, she intended to have the case re-opened. When he was interviewed on the telephone by the police in 2015, he told the police that his former wife, with whom he was totally estranged and had no communication, had also been sexually abused and that she (his former wife) wanted to make sure that A got justice. He told the police that “she turned my kid into one hell of an angry kid”. He testified that despite his entreaties, his former wife refused to allow A to enter into counselling.
34He recalled that his parents helped babysit his daughters one or two days a week after school from the time they were about three years old until they were about seven years old when these allegations were first made. He never recalled that going to their grandparents’ home was an issue for his daughters. From what he could tell, the girls had a good rapport with their uncle (the defendant) and the defendant’s son who was about five years older than them.
35He recalled that his brother (the defendant) did have a basement apartment in his parents’ home and that he had bought some furniture from Leon’s Furniture. Though he could recall being down in that basement apartment area only once, he was pretty sure his brother had a statue of a giraffe down there as it was an unusual item.
36When confronted with his daughter’s evidence that she thought her grandparents were dirty and greasy people, he strongly disagreed. He noted that his father was a steelworker and understandably would come home dirty and greasy from a day’s work.
37I found W. Jr. to be a very credible witness. He readily admitted when he was unable to remember an event or conversation. He answered questions directly and politely.
Overview of the Defence Evidence:
Evidence of M.:
38She is the 20 year old stepdaughter of the defendant. She met him when she was about six years old and after her mother and the defendant married, she and her younger brother N. lived with him for about ten years.
39She testified that she knew A as they went to the same school. They learned that they were related at some stage and at no time did A mention that the defendant had abused her. However, in her examination in-chief she did indicate that when she was about 10 years old, the defendant did advise her of the allegations which A had earlier made against him. She agreed that she did not see A at school very much as A was a year or two ahead of her in her studies.
40M. recounted how on one earlier occasion, in June of 2011 or 2012, A came to her home when M. was in grade 9. She recalled that the defendant, her brother N., a friend Jonah and Alex were all playing football in the open park area behind their townhouse unit. She stated that A and the defendant had an eye to eye conversation for 10 to 15 minutes and then had a hug. After the conversation, M.’s mother (the defendant’s wife) invited A to join them for supper. A accepted, joined them in their townhouse for supper and she stayed for about 30 to 45 minutes.
41The defendant testified that he remembered the occasion when A did eat with his family after they had been playing football behind the house. His recollection differed from M.’s relating to the personal discussion they allegedly had. He recalled that after dinner, A invited him to walk with her about ten yards to the corner of the townhouse complex, adjacent to a parking area. He testified that at that time, she apologized for having made the allegations against him as a young girl and that she had been pressured into making such statements.
42In her cross-examination, M. stated that she considered the defendant closer to her than her biological father. She agreed that she had come to testify because she felt the defendant was innocent and she wanted him to get a fair trial. She contradicted her earlier testimony when she said she was 16 in 2014 when the defendant shared with her the false allegations made against him by A. He apparently wanted her to know so that if she heard rumours in the family, she would know they were false. He denied he did anything wrong in the presence of her mother.
43M. agreed that the defendant and her mother had separated within the year preceding this trial. She candidly stated that their relationship had deteriorated to the state that they were physically and emotionally abusive to each other and the defendant had not been a good husband to her mother. She had not lived with the defendant since the separation.
Evidence of T. Jr. (the Defendant’s Son):
44T. Jr. is presently 24 years of age. He lived with his father and paternal grandparents in Ancaster from June 2001 to August 2002 while his mother had renovations done to her home. His bedroom was on the second level of the house.
45He recalled his young cousins A and B coming to be babysat after school by his grandparents. He was eight at the time. He testified that when they were there, he was busy playing video games in the living room every day. He complained that the girls were always bugging him, climbing on him, and touching him all over including his genitalia. Eventually, his mother had to buy him Oshkosh overalls because the girls were so frequently touching his genitals.
46He recalled that the girls did not come to be babysat for very long. By Halloween day 2001, he felt they were no longer coming to the house after school.
47Like his father, he explained that the door to the basement was always locked. He was not allowed to go down into the basement apartment and so he complied. To him, the basement seemed to be like his father’s house. He never saw the girls go downstairs to the basement as they always played in the living room area of the house.
48T. Jr. recalled that during the time he lived at his grandparents’ home, his father would sleep on the chesterfield and sometimes in T. Jr.’s bedroom. His father would arrive home well after midnight and sleep until after noon. T. Jr. would dress and go to school while his father slept. When he got home from school, he rarely saw his father because he had left for the gym to perform his bodybuilding exercises. In other words, T. Jr. could rarely recall his father being home when the girls were brought to the house after school to be babysat by their grandparents until their mother arrived to pick them up.
49T. Jr. said it was impossible for the girls to ever be alone with the defendant for even a moment as his grandmother and/or grandfather were always present and his father was rarely present. As a young boy, T. Jr. said he had little or no time with his father except on weekends occasionally. He testified that he did not know if his father ever slept in the basement. However, he never recalled him sleeping in the nude or walking around the house when he was nude.
50He never sensed any problems existed between the girls and his grandparents.
51I must say that T. Jr.’s evidence left me feeling that he was prepared to say whatever was necessary to protect his father.
Evidence of W. Sr. (the Defendant’s Father):
52He is the grandfather of A and B and of T. Jr. He and his late wife E. who died in 2015, had purchased a home in Ancaster in 2000 where the events relating to the charges before the court are alleged to have occurred.
53W. Sr. was a certified pipefitter who worked for over 40 years in his trade in the steel industry in Hamilton. He and his wife had two children, W. Jr. and the defendant.
54He testified that very reluctantly, he and his wife agreed to babysit A and B after school commencing in September 2001, after their son W. Jr. begged them to help out he and his wife. He would arrive home from work shortly after 4:00 pm each day and recalled the difficulties they experienced with the girls.
55W. Sr. stated that the defendant moved into their home to live when they purchased the house in 2000. He lived in the basement for a couple of weeks where it was intended he would have a separate and private apartment. It had an interior staircase and an exterior staircase for access and egress. He testified that the defendant only slept in the basement for a couple of weeks but he did not have a bed. As a result, he resorted to mainly sleeping on the chesterfield in the living room or sometimes upstairs with his son T. Jr.
56W. Sr. said he never had to go into the defendant’s apartment. He confirmed that the basement door at the top of the interior staircase had two locking mechanisms. One was in the handle of the door seen in exhibit 5. The other was a latch locking mechanism at the top of the door which could not be reached by children. He said these locks were in place when they purchased the house and that the basement door was always locked because his wife worried about the children falling down the stairs.
57He confirmed that his son kept most of his belongings in his son’s bedroom or in his parents’ closet due to the mould in the basement. He also remembered that the defendant would usually shower and dress in the upstairs bedrooms.
58On the first day that the girls came to be babysat at his home, W. Sr. recalled that the girls went over and grabbed the penis of T. Jr. as he was playing video games. He heard T. Jr. yell. B had watched as A had pulled his penis. The defendant then went over and admonished the two girls for that behaviour. W. Sr. testified that he remembered the incident “as clear as day”. He was shocked by the behaviour as he had never seen children act in such a way. He had not had a lot of contact with the girls up to that time due to familial difficulties with the girls’ mother.
59W. Jr. swore that he and his wife only babysat A and B for about two months. He remembered that there were eight or nine times where the girls would harass T. Jr., pulling down his pants and grabbing at his genitalia. The behaviour did not change even after they complained to the girls’ mother. Ultimately, he and his wife told their mother the babysitting was being terminated because of this behaviour.
60He confirmed that his son, the defendant, was not home often when the girls were at the house because of his workout schedule. He recalled that by mid-afternoon, the defendant was always gone to the gym, followed by a visit to his girlfriend’s home and sometimes thereafter he would go to work as a security officer at local bars.
61W. Sr. was adamant that between his wife and himself, they always had a set of eyes on the girls when they were babysitting. The house has an open concept design which allowed them to sit in the kitchen and watch the children playing in the living room. He stated that he was stunned when he learned of the allegations because he did not know how such a series of acts would have been possible.
Evidence of the Defendant:
62The defendant testified in his own defence, but after all other defence witnesses had given their evidence. An order excluding all witnesses had been made at the outset of the trial and which was agreed to by both the Crown and the defence. The Crown quite properly raised the propriety of this occurring as the defendant was able to listen to his witnesses and thereby be able to tailor his evidence to be in conformity to that given by those witnesses. I considered this issue and do not feel that in the circumstances, a defendant should be denied the right to present his defence as he sees fit, calling witnesses in the order which best helps tell his side of the story and reserving his right to decide not to testify if he chooses not to do so. I draw no adverse inference against his evidence because of the way the defence called its witnesses.
63The defendant also has a criminal record to which he agreed and it included dated convictions for theft related offences, with two of the convictions being registered in 2001 when the incidents alleged by the complainant are supposed to have occurred.
64The defendant was born in 1969. Hence he was approximately 31 at the time that A and B started coming to his parents’ home to be babysat after school. The defendant explained he had little relationship with them to that time due to the poor relationship of their mother K. with his parents.
65In 2000, when his parents bought their home, he moved into the house to live with them. The basement apartment, which was separate from the laundry area, was his exclusive area of the house. He stated he did not want anyone in his private space, including his son T. Jr. He agreed that he wanted the area locked because he was trafficking in anabolic steroids which were kept in a fridge in his apartment. He also was growing medical marijuana in the apartment which he needs for the pain he experiences and which is the cause of his disability. He also expressed concern that children could be injured by the heavy weights he kept there on a weight tree. The basement apartment has two bedrooms, a living area, a washroom and a dining room.
66He testified that he only lived in the basement for a few weeks and that because of the mould and associated smell, he quit sleeping down there. After a couple of weeks sleeping on mats in the basement, he found it was too cold and mouldy. Consequently he started to sleep on the couch in his parents’ living room or sometimes with his son T. Jr. in his bedroom located on the upper level of the house. He moved all his clothes upstairs to the bedroom closets in T. Jr.’s room and his parents’ room. When pushed in cross-examination, he was not sure what size of bed T. Jr. slept in, variously estimating it was a super-single, a twin bed or a double bed. He testified that he did that until his grandfather, who was living in a separate area on the main floor of the house, passed away in March 2002.
67He said that he had purchased some furniture for his apartment but sold most of it after about seven months because he needed the money. When questioned about whether there was a bed in his apartment at any time when the alleged acts were committed by him, he emphatically denied that there was one. He explained that he was not certain of the style of bed he wanted as he and his father were discussing the removal of a wall in the basement apartment to create a larger bedroom space to accommodate a king size bed. I should note that the defendant is a tall, physically well-developed man.
68He had a remarkably clear memory of the first day that A and B came to his parents’ house to be babysat after school, especially since the alleged offence occurred approximately 17 years ago. When his mother arrived at the house with A and B, he was having a “health shake” with his grandfather at the kitchen table. He called T. Jr. to greet his cousins. Once the girls were in the house, it was not long before he heard his mother cry out in an alarmed way. He looked and saw his son’s bare behind at the same time as his father was coming into the house from work. The defendant testified that he immediately went down the hall and saw that A and B had grabbed T. Jr.’s penis. He recalled later hearing them saying “I will give you a nickel to see your pickle”. He grabbed the girls, sat them down and admonished them for such behaviour. He felt that there was something wrong in the way they were behaving.
69He testified that his daily routine was almost the same at that time. He was very committed to bodybuilding with two friends at a local gym. He would essentially plan his days around that period of exercise. He testified he would get up around 11:30 am and after dressing, have a bit to eat. His then girlfriend K. would call him every day at 2:10 pm after she finished work. He then would go to the Good Life Gym for his workout, shower, go for a tan and then go to K.’s house. If he was working as a bouncer at a local bar that evening, he would usually work until 3:00 am and arrive home in the early morning hours. When he was not working, he would stay at K.’s apartment until she fell asleep around 11:00 pm and then return to his parents’ home.
70Because the girls were generally at his parents’ home from about 4:00 pm to 5:30 pm, he rarely saw them according to his recollection. When pressed in cross-examination, he said it was only on two occasions that he remembered seeing them at the house. The first was the very first day they arrived after school and the other time was the day after his brother’s birthday, […], 2001. On that day, he testified that he was asleep in his son’s room on the upper floor of the house. He was emphatic in his cross-examination that he was not naked and remembered that he was wearing underwear. As he slept, A and B quietly came into his room and suddenly he awoke when they were on the bed, between his legs, touching his genitals. His mother came into the room almost immediately and took the girls from the room. He later admonished them once again and told them they were not to go into the bedroom of other people uninvited. He described this event as “humiliating” to him.
71His best recollection was that the girls were babysat by his parents only until the end of September. In due course, the girls allegedly harassed and bothered T. Jr. so much that his parents terminated the arrangement. For him, the final straw was when his former wife had to buy T. Jr. a pair of Osh Kosh overalls to prevent the girls from pulling down his pants.
72He firmly denied that A was ever alone with him in the basement. He stated that he never allowed anyone into his space in the basement. He identified the door in exhibit 5 which he said had the handle lock and the upper locking mechanism at the time his parents purchased the house. Furthermore, the door to his apartment had a lock and he kept it locked at all times.
73He agreed he started to date K. in 1996. He dated her for 11 years before their relationship ended. He estimated that she may have seen his son at most two times at his grandparents’ home. He estimated that K. may have met A and B on one occasion at their birthday party in June 2001 but otherwise, there was no relationship between K. and the girls at all. The defendant denied ever owning a giraffe statue. He denied ever walking around the house naked. He also denied ever owning a speedo bathing suit or similar attire.
74He felt that the allegations raised against him came at a very suspicious time. Apparently a late friend of his came to his home and advised him and his father that W. Jr.’s wife (the mother of A and B) was having an affair. The day after learning about this, he testified that he and his mother and father confronted her at his grandparents’ home about her alleged behaviour. About five to six days later, his brother W. Jr. (the father of the girls) contacted him and related the allegations. He agreed that he had no proof that A and B’s mother did or said something to have A come forward with her allegations to L.W..
75He testified to the alleged meeting with A at the Wendover townhouse in about 2011. His estranged wife T. mentioned that A was outside playing football in the park behind their unit and asked if he wanted to go outside to play with her. He said he was uneasy due to the allegations brought forward in 2004 but nevertheless, he went out. He recalled that he, A and his stepdaughter M. formed a triangle and threw the ball around for about 20 minutes. T. invited everyone, including A, into the house for supper and A joined them at the dinner table. After dinner, A asked the defendant to walk around the back of their townhouse to the corner of the building. It was only about 10 yards and he figured that she simply wanted to speak to him. He had apparently asked everyone to keep their eye on her because he did not want “anything coming back on me”.
76At that time, A allegedly apologized for the earlier allegations of wrongdoing and explained that she had been heavily influenced by her parents.
77A denied ever eating with the defendant’s family or apologizing to him.
78He categorically denied any wrongdoing towards A at any time, emphasizing that he found such conduct absolutely disgusting and that he is not a pedophile.
Legal Framework:
79The essence of the charge in this matter was captured in the video entered as exhibit 4. Section 715.1 of the CCC permits an out of court statement to be admitted for the truth of its contents, provided the declarant adopts the statement while testifying. It is not a pre-requisite to admission that the declarant be able at the time of testifying to recall all details of the incident in question, rather, the declarant at trial must adopt the statement as true when given.
80The special circumstances relating to the evidence of young children have been well articulated by the Supreme Court of Canada in R. v. F.C. 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183 at paras. 19 to 24 where Cory J. commented on the likelihood of young children who have experienced a traumatic event forgetting many of the details a year or two later. While the passage of time erodes the memory of an adult, the same phenomenon is even more accentuated with very young children. The court noted at para. 21 that a “child assaulted at the age of three or four years may have very little real recollection of the events a year of two later when the child is testifying at trial”. And that is the problem in this case according to the defence. The alleged offence is supposed to have occurred in 2001 when A and B were just four years old and the video statement was given about two and one half years later.
81In the case of R. v. Sanichar, 2012 ONCA 117 the court was dealing with an appeal from a conviction of the defendant for historical sexual assaults. At para. 37 of that decision, Blair J. A. noted that the complainant was 36 when she testified at trial with respect to events which occurred when she was a young girl and a teenager. At para. 38, he stated that in cases involving acts of sexual and physical abuse which occurred many years previously, the presiding judge must apply particular caution and scrutiny in approaching the reliability of the evidence. With the passage of time, memories can fade, details disappear, and life experiences can cloud and colour perceptions of what actually occurred. As stated by Minden J. in R. v. McGrath, [2000] O.J. No. 5735 (SCJ) at paras. 11-14, cited with approval by Blair J.A. in R. v. Sanichar at para. 39, the “trier must be particularly vigilant to ensure that the burden of proof is not shifted to the accused. A trier of fact must be alive to the fact that the passage of time provides more opportunities for collusion or contamination between multiple complainants. Finally, in the overall assessment of the evidence, there is a special need to self-instruct on the frailties of evidence concerning events from the distant past”.
82Thus, it is essential for the court to carefully consider the underlying reliability of the videotaped statement.
83At the same time, it is almost trite to state that the defendant is presumed not guilty unless the Crown proves his guilt of all the essential elements of the offence charged beyond a reasonable doubt. The Crown bears the onus at all times of proving the case to that high standard. The defendant does not have to prove anything. The court must assess all the evidence, not just some of it or the lack thereof, in reaching its decision. R. v. Lifchus, 1997 CanLII 319 (SCC), [1997 3 S.C.R. 320.
Position of the Defence:
84Ms. Smordin has argued that the Crown has not fulfilled its evidentiary burden to prove the defendant guilty beyond a reasonable doubt. She generally relies on the following main points:
a. The inconsistency between the original complaint made by A to L.W. and the subsequent interview given to the police and recorded in exhibit 4.
b. the unreliability of A’s video statement to the police as a seven year old girl in 2004 as she attempted to relate what allegedly happened to her three years previously as a four year old little girl.
c. The evidence of A visiting the defendant and his family at the Wendover townhouse where she allegedly played football, stayed and ate supper with the defendant’s family and thereafter apologized privately to him and concluded their conversation with a hug.
d. The evidence of T. Jr., W. Sr. and the defendant as to the impossibility of the complainant ever being in the basement alone with A.
Submissions of the Defence:
85In her detailed and ably presented submissions, Ms. Smordin urged the court to consider the judgment of Boswell J. in R. v. D.M. 2012 ONSC 6353 which was another case of historical sexual allegations in which the defendant was found not guilty. At para. 35, the learned judge cited Watt J. A. in R. v. C.(H), 2009 ONCA 56, at para. 41, where he said:
Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately: i. observe; ii. recall; and, iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability; a credible witness may give unreliable evidence.
86Throughout her submissions, Ms. Smordin has urged the court to consider and reject the reliability of the evidence of A in particular, and to a lesser extent that of her sister B.
87She also urged to court to consider the comments of Boswell J. at para. 43 of R. v. D.M., supra, which read as follow:
Having regard to the guidance provided by McGrath and Sanichar, it is imperative that the court carefully scrutinize the evidence presented by the Crown and pay particular attention to the following features:
(1) Internal and external inconsistencies in the testimony of the complainant and others;
(2) The “subtle and not so subtle” influences that may over time distort memory;
(3) The possibility of collusion and/or contamination of evidence; and
(4) The possible absence of evidence that might have been available had the case been prosecuted in a timely fashion.
88Ms. Smordin’s submissions generally followed that helpful general roadmap and I will deal with three of them which are relevant in this case.
Internal and External Inconsistencies in the Testimony of the Complainant and Others
89Ms. Smordin argued that there were clear differences between A’s statement to L.W. and her DVD video statement to the police in 2004. Counsel highlighted some of them and they are summarized in the following paragraphs.
90L.W. testified that A told her that her uncle asked her to “kiss his pp”. However, at page 7 of the transcript, A said the invitation was a dare to put her mouth on it. At page 8, she described it as his “winkie”.
91L.W. asked her if she did it and she replied “no”. But at page 11 of the transcript, she told Detective Mueller that she did it.
92A gave L.W. no specifics of where the incident occurred but she told the police officer that it was in the little bedroom in the basement, (page 11 of the transcript).
93While testifying before this court, A agreed her memory of the police interview was poor but she could vividly remember the comment “K. did it all the time”. The defence rhetorically asked that if that memory was so vivid, why did she not mention it to L.W.?
94At page 13 of the transcript, A was asked to draw a picture of her uncle’s winkie. On the video, she readily took Detective Mueller’s note book and pen and drew her version of the winkie. A copy of that page 82 of Mueller’s notebook has been entered as exhibit 2. When asked where she touched his winkie, A then drew a circle around the penis where it took place. The circle is in the mid area of the shaft of the depicted penis and not near the head of the penis. In her cross-examination before this court, A stated that the drawing was inaccurate. Quite properly, Ms. Smordin argues this discrepancy brings the reliability of A’s testimony into serious question. In review of the DVD video, it is apparent that after giving A the book and pen, A very quickly circled the penis with little forethought or reflection and immediately returned the book to the detective.
95During her cross-examination before this court, A could not recall how many times her uncle was home when she and B were there being babysat. She stated that as far as she could recall, he could have been there, not there or locked in the basement. She could not recall whether the door to the basement was locked or closed. She could not recall her father ever speaking to her about putting objects in her vagina. Ms. Smordin submits that her recollection of events is vague and inconsistent and hence unreliable. During the testimony of A’s father, W. Jr., he forgot that his late mother E. had spoken to him about A poking herself in the rectum and in the vaginal area until he refreshed his memory with his statement he gave to the Children’s Aid Society. Again, Ms. Smordin emphasized the dangers of fading memories and sympathetic witnesses in a case such as this.
96In her cross-examination, A could not recall any threat or warning or reward made by her uncle to keep the alleged sexual act a secret between them. She suggested that “maybe his actions” made that apparent but I must say that as I observed her testify, her demeanour and her answer in that respect was far from an assertion that she ever felt threatened or coerced by him. Ms. Smordin submits that there is just no air of reality that a perpetrator would do nothing to prevent himself from being disclosed. A otherwise could arguably have just run upstairs and told her grandmother, which she did not do. I reject that submission. This incident was an unusual event but clearly it was not at the time traumatic or alarming to A. She did not understand its seriousness or sexual implications. As she testified, she just ran upstairs and was a bit disappointed that she could not do what he had asked her to do.
97The defence submits that on the evidence, the allegations are inconsistent with there being an opportunity for the defendant to have committed this offence or to have walked nude around his house as alleged by A and B. First, the girls were only babysat for a few weeks in September 2001, from the recommencement of the school year just after Labour Day. W. Sr. testified that he and his wife always had their eyes on the girls, which does make sense when an adult is caring for two four year old little girls. He confirmed his son’s evidence that they always kept a lock on the basement door to protect the girls from falling down the stairs and to keep them out of the defendant’s private apartment. T. Jr. and W. Sr. both stated that the defendant was almost always gone to the gym when the girls arrived at the house after school. Both T. Jr. and W. Sr. swore that there was no bed in the basement apartment at the time of the alleged incident with A.
98A denied ever going to the defendant’s townhouse and having supper with M., her brother, the defendant, the defendant’s wife. M. contradicted her and stated that this occurred, as did the defendant. M. and the defendant testified that A had a private conversation with the defendant but their recollection of where and when it occurred varied. A denied vehemently eating in the residence, speaking privately with the defendant and apologizing to him for her earlier allegations and giving him a hug at the end of their conversation. The defence submits that this evidence is consistent with her untrue allegations against the defendant and her denial of this event is essential for her evidence to be accepted. The defence contends that nothing undermined the credibility of M. and that she gave a good reason why she could recall the event, her motivation for coming forward to testify and what had taken place.
The Possibility of Collusion and/or Contamination of Evidence
99W. Jr. agreed that he learned at some stage that his brother, the defendant, married M.’s mother. He knew that M. was a young girl in the care of his brother who had allegedly acted inappropriately with his own daughter. Despite that knowledge, he could not explain why he did not speak to M.’s mother about his concerns for the possible safety of her daughter or her son. The defence suggests that his failure to do this reflects his disbelief in the allegations levelled against his brother by A and his evidence is contaminated by his failure to act responsibly in that situation. I reject that assertion. While W. Jr. could not offer an explanation for not speaking to M.’s mother, he certainly did not accept that that was the reason for his failure to do so. As stated earlier, I found him to be a truthful, understated witness.
100The defendant suggested in this testimony that he and his parents had confronted the girls’ mother K. with an accusation of infidelity on her part just four or five days before the first mention of this matter to L.W.. His answers to questions about that confrontation, including who spoke, what was discussed, where the discussion occurred and K.’s alleged reaction were vague and certainly not convincing. I reject his evidence on that alleged event and confrontation. His father testified that he had advised his son W. Jr. of his wife’s infidelity. W. Jr. denied that his wife had been unfaithful and that was not the reason for their marriage breakup. I find that there is no evidence relating that alleged family discussion to the seven year old complainant ultimately discussing this matter with L.W. and later the police.
The Possible Absence of Evidence that Might have been Available had the Case been Prosecuted in a Timely Fashion
101A denied in her cross-examination that she waited to re-open the case in 2015 until after her grandmother had died. A agreed that her late grandmother, who died in March 2015, would not have agreed that such an incident could have taken place while she was in the house. A did not seem to have fond memories of her grandparents, recalling them to be greasy and dirty. The defence submits that the complainant intentionally waited until her grandmother’s death before returning to the police to ask them to re-open the case in April 2015. In doing so, it is submitted that this was done intentionally to limit evidence which might contradict her version of events. A’s father testified that she had indicated to him that she was going to wait until her grandmother died and/or she turned 18 before going back to the police. At the time she asked the police to consider re-opening the case, she was only 17, just a few months short of her 18th birthday. I must say that from the evidence I have heard, I infer her grandmother appears to have been the person most often present in and organizing the household while her husband was the traditional male breadwinner. There is no doubt in my mind that her evidence would largely have been beneficial to the defence. The defence submits that this timing was too convenient as to make it suspect and there is no doubt that the timing does cause one to pause in consideration of all the issues. The complainant denied that her intent was to do what is suggested by the defence but she just carried through with what she had always intended to do.
102B also testified that she and her sister A saw the defendant sleeping on his son’s bed. She recalled that they climbed on the bed and both poked and touched his genitalia. A did not agree that they touched him on that occasion. They both confirm the incident, which was agreed to by the defendant in his testimony, but the defence contends that the inconsistency in the versions of this event given by the girls is further evidence of the unreliability of A’s evidence in this matter.
103Ms. Smordin also urged the court to draw an adverse inference against the Crown for its failure to call A’s mother, K., to testify with respect to the suggestion that she had encouraged her daughter to fabricate the allegations. In my view, other than making such a suggestion in the cross-examination of the complainant, which was denied when the question was posed, there was no evidentiary basis requiring the Crown to call such evidence. When confronted with his utterances made to the Children’s Aid Society, W. Jr. acknowledged that his former wife “wanted justice for her daughter”. That statement was given to explain his wife was supportive of her daughter and does not support the contention that there was fabrication involved. W. Jr. testified that his former wife did not influence their daughter A to fabricate the evidence. As stated elsewhere, I accept his evidence and was impressed by his candour during the entirety of his testimony.
104I do not find that there was any inducement or encouragement of A to fabricate her story. I do not draw an adverse inference against the Crown for not calling K. to testify.
Position of the Crown:
105Mr. Milko first argued that the statement given by A to the police (exhibit 4), which was adopted by her as truthful during her testimony at this trial, is reliable in its essential elements and in a detailed review of it, showed how it reflected a truthful effort by A when she was 7 years old to relate what happened to her at the hands of the defendant when she was four.
106He further submitted that the narrative evidence of B and W. Jr. supported certain aspects of A’s story.
107Finally, he has argued that the defence witnesses have “tailored” their evidence to attempt to create artificial circumstances which would make it impossible for the defendant to be alone with A to commit the alleged offence.
Submissions of the Crown:
108I was urged by Mr. Milko to carefully review the DVD video as I considered my judgment in this matter and I have done so.
Review of the DVD Statement to the Police:
109In his submissions, Mr. Milko prepared a detailed brief of the video to assist the court and I have relied heavily on it in considering this case for it summarized a series of compelling factors supporting its reliability.
110The videotaped interview takes place with Detective T. Mueller posing the questions and a representative of the Children’s Aid Society observing and taking notes. A is seated on a chesterfield facing the detective. A is a beautiful, little innocent girl, clutching her little toy rabbit. She is seven years old, well spoken, alert and clearly embarrassed from time to time as she answers questions about the alleged sexual act.
111Throughout the interview, Detective Mueller gently led the conversation to relevant topics without using leading questions. The words expressed relating to the offence clearly originated from A’s mouth and memory and not from words implanted in her head by the detective.
112A was reluctant to tell the detective what happened because when she was told there were cameras and microphones in the room, she said that was not “okay cause I don’t want anybody to hear what I say”.
113She clearly understood the role of the police “to save people from crime” and “throwing people in jail”. At pages 5-7 of the transcript, she demonstrated an understanding as to the difference between the truth and a lie, and that it is better to tell the truth which she promised to do so. When asked why her parents brought her to the police station, she again reiterated that she did not want anyone to know about it before saying “our uncle did something bad”.
114As she slowly, in response to non-leading questions, explained the details of the offence, there were a number of details provided by her which were corroborated by independent evidence heard at this trial many years later. Some of the details of the offence can be summarized as follows:1
He dared me to put my mouth on his winkie [pages 7-8].
He said that K. did it [page 10]. The defendant acknowledged in his evidence that in fact his then girlfriend had performed fellatio on him a few times.
She did it – put her mouth on it [pages 10-11].
It happened at Gammy’s house, down in the basement [page 11]. This contradicts the picture that the defendant’s witnesses tried to paint that at no time did any of the children go down to the basement.
In the little room – a bedroom [page 11]. This indicates that A knew there was a little room in the basement which was a bedroom. The defendant stated that he and his father were going to enlarge the bedroom in his basement apartment by moving one of the walls. Either A was familiar with the bedroom in the basement of the house and thus able to readily relate this detail, or she was seamlessly describing a fictional location in detail. I have no doubt it was the former.
Only she and her uncle (the defendant) were there [page 11]. This is consistent with the testimony of B that she never was present when such an incident occurred.
I don’t know what he was doing…he was just sitting on his bed [page 11]. This contradicts the testimony of the defendant that he never had a bed in the basement apartment.
He was bare naked [page 12].
I saw his private, his stomach and his face [page 12]. This is consistent with a little girl standing in front of a naked man whether he was seated or standing.
She was embarrassed to describe his winkie so she drew it [pages 11-12].
His winkie looked wet ‘cause I put my mouth on it [page 13]. It is difficult to accept that a seven year old girl would make up such a detail without having seen and experienced it.
She was asked a leading question if her contact with his winkie was like a kiss. She rejected that suggestion by demonstrating what had occurred by putting her fingers in her mouth [page 14].
She did this for two seconds [page 14].
After this she went upstairs to her cousin’s room to play with him (if he was there) [pages 14-15]. She clearly could remember the layout of the house, and the fact that her cousin’s room was upstairs as confirmed in the evidence.
The first person I told was L.W. [page 15]. That evidence was confirmed by her father’s testimony.
115In assessing her evidence, the Crown noted that some of the terminology used by A during her interview had a “ring of truth” about it. She stated that her uncle “dared her to put my mouth on his winkie”. Daring a child to do something is a logical way to encourage a child to do something. In a given sense, it is a subset of an ask or an invitation. In making this comment, she appropriately hesitated before using the word “winkie” but used the word “dare” with no hesitation. In a given sense, using the word “dare” can make the request appear to be fun or challenging in the eyes of a child.
116A recalled him telling her as part of the “dare” that “K. did it”. This reflects an encouragement and assurance that because K., who A said she knew and liked, had done this act that it must be OK. During his testimony, the defendant tried to minimize any familiarity A might have had with K. by testifying that he was only ever at home when A and B were being babysat on two occasions and K. was mentioned by him as being there only on one prior occasion with the girls. It is illogical that she otherwise would know K.’s name and be influenced by the alleged conduct of K. if she had not met her. The undisputed evidence is that there was a girlfriend K. at the material time and this detail, offered by A in her statement to the police, is a corroborating detail as to what took place. I find that the defendant has intentionally tried to minimize the relationship which existed between K. and A and B.
117When A said “I did it” (page 10). “I put my mouth on it” (page 11). The Crown submits that this language is consistent with what a child did, without any real idea of why anyone would put her mouth on a penis. It emphasizes the novelty of what was happening to her.
118Mr. Milko submitted A’s statement of where the act occurred was spontaneous and compelling. She said “it happened at Gammy’s house, down in the basement”. If she had never been in the basement, it is difficult to imagine her making that up. There was no logical reason for her to not say it occurred on the main floor or upper level of the house which are the areas to which the defendant alleged she was restricted. Interestingly, on the evidence of the defence, it was the one area of the house to which no-one was permitted access. However, with respect to the innocuous question of where the incident occurred, she offered this detail in a way indicative that it was within her regular experience. After explaining that she had put her mouth on his penis, she immediately said “and then I ran upstairs”. Again, she spontaneously gave that answer, without being asked, indicating her recollection of how she got out of the basement.
119When A demonstrated the sexual act, rejecting the suggestion it was a kissing action, and instead placed her fingers in her mouth, the Crown submits she demonstrated she was interested in telling the truth. She could have readily agreed it was a simple kiss and more quickly reached the end of the most uncomfortable part of the incident and her interview. Instead, she corrected the detective’s erroneous notion, consistent with her promise to tell the truth, and demonstrated exactly what happened in her recollection. I agree with this submission.
120A stated “the first person I told was L.W.”. Mr. Milko again urged the court to find that this is consistent with all the evidence and therefore minimizes any concerns of collusion. I find there was no evidence of collusion to fabricate this story. If her mother had urged her to make this story up, it is inconceivable that she and her husband would not have taken their daughter directly to the police. That is exactly what they did when L.W. made A’s father aware of the allegations. W. Jr. denied that his former wife coached or urged his daughter to fabricate the story. L.W.’s evidence is clear that the subject was raised rather innocently with her while A was colouring in her residence. The sexual misconduct of her uncle would not have been understood by her as wrong or even criminal. However, it clearly was a new and unusual experience which stood out in her mind, like so many new and unusual experiences young children encounter in the early years of their lives. The details may blur with time but the memory of the event are inscribed forever in the brain.
121I concur with the submission of the Crown that the only logical conclusion to be drawn from this video is that A, a little naïve seven year old girl, was recounting an event which occurred and which was and remains indelibly burned into her brain and life experience. It is incredible to believe that she could have conjured the details of this event. She clearly was not coached to say what she said. Her answers are appropriately reticent but clear; she demonstrated an understandable embarrassment with respect to the occurrence, seeming to feel that somehow she might be at fault. That is totally consistent with a child of her age who even then could not and did not understand the sexual nature of the act she had been invited to perform.
122There was no plausible motivation for A to lie. The Crown submits that a little girl like A simply would not make up a story such as she has related on the DVD video and the general nature of which she has confirmed as a mature young lady under oath in these proceedings.
Evidence of B:
123I was impressed with B’s evidence. She was understated and did not try to embellish her evidence to support A’s allegations. She did not recount any similar sexual advances being made toward her by her uncle. On central issues, her evidence was consistent with that of her sister. She too remembered seeing her uncle naked on several occasions and touching his body when he was in bed. This evidence confirms he was alone with them at times. It is consistent with A’s evidence that he must have been alone with them in various rooms of the house when he was naked and had the opportunity to interact inappropriately in conduct or in a state of undress. B’s evidence directly refutes the evidence of the various witnesses for the defence who stated that the defendant was never alone with the girls except for the bedroom incident. Furthermore, B was emphatic that she could remember being in the basement of the house on a number of occasions, contrary to the evidence offered by the witnesses for the defence. I accept her evidence as being reliable and credible.
Analysis:
124In R. v. W. (D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 at 409 (S.C.C.), Cory J. laid out three requirements appropriate for the charge to a jury in cases where credibility is at issue. As the trier of fact I am bound by the same requirements, and so they are as follows:
(a) If I believe the evidence of the accused, I must acquit. I observed the defendant testify and did not believe much of his evidence as I explain in more detail below.
(b) If I do not believe the evidence of the accused but I am left in reasonable doubt, I must acquit. The evidence of the defendant did not raise a reasonable doubt in my mind.
(c) If I do not believe the evidence of the accused, I should ask myself whether, based on evidence I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused. Based on my consideration of all the evidence, including that of the defendant, I am not left with a reasonable doubt as to the guilt of the accused.
125It is essential that a court consider the totality of the evidence presented to it in determining the guilt or innocence of the defendant. It is not proper for a trial judge to simply choose between the evidence of the complainant and that of the accused and thus reach a conclusion of guilt beyond a reasonable doubt. The totality of the evidence must be examined to determine if there is a reasonable doubt notwithstanding the apparent credibility of the complainant: see R. v. Richardson (1992), O.R. (3d) 195 at 199 (C.A.).
126To a large degree, I found that the evidence of the defence witnesses was contrived and tailored to rebut the evidence of the act which I find occurred.
127I find it illogical that the defendant would have a basement apartment, purchase furniture for it but not purchase a bed. I disbelieve the evidence he gave that he did not have a bed in that area, especially after he gave evidence he had purchased humidifiers to deal with any mould problem. His testimony in cross-examination in many respects was evasive and did not have a ring of truth about it. For example, when pressed in cross-examination, he stated that he moved the couch from his apartment upstairs to the living room area of the main floor and that he often slept on it in that room. He would have had the court believe he never purchased a bed. When pushed in cross-examination, he was unable to explain where his couch or his parents’ couch ultimately went.
128I find it incredible that he could remember clearly that 17 years ago that he was only home on two occasions when his nieces were being babysat at his parents’ home.
129I do not believe that the door to the basement was always locked and inaccessible by members of the family. The suggestion that to leave the basement apartment without going outside, he would have to climb the stairs, pound on the door and await someone to come and open it is ridiculous, especially when he had a lock on his apartment door in the basement.
130The defendant described the basement of the house as his “domain”, yet on his own evidence, he allegedly did not sleep there, eat there, shower there or use it as his living area. When pushed in cross-examination to explain why no-one allegedly could enter his domain, he explained by 1999 he had stopped using steroids as part of his vigorous, daily bodybuilding regime. Thereafter, he began trafficking in steroids which he kept in a refrigerator in his room. Yet elsewhere in his testimony he stated that he had encouraged other participants in bodybuilding not to use steroids.
131I found that his evidence about the use of the basement, its restricted access, and the reasons for it being a restricted area to be exaggerated and contrived and not credible. His testimony was aimed at negating the assertion of his nieces that they were in the basement area of the house from time to time and that the incident with A occurred in the basement. I felt the defendant’s assertion that he felt “humiliated” when he realized his little nieces were touching his genitalia while he was sleeping in the upstairs bedroom was also contrived, and I felt he used that expression to try to distance himself from such an act. If he was asleep and they did touch him inappropriately, he would have no reason to be humiliated; perhaps upset or embarrassed, but not humiliated.
132T. Jr.’s evidence was scripted and frankly unbelievable. It echoed that of his father with respect to where his father slept from time to time which simply was difficult to accept, particularly due to my finding that there was at all times a bed in the basement apartment. I found T. Jr.’s assertion that every afternoon after school he came home and played video games and never went outside to play or associate with friends to be contrived to fit the defence. His description of the alleged “assaults” on his private parts was exaggerated and overstated. He had every motive in the world to fit his evidence into the picture being painted by his father because as he testified, he has a good relationship now with his dad.
133W. Sr. gave evidence which was sympathetic to his son. He strongly denied such an occurrence with his son could have occurred because the girls were always in the house with his wife or him when he got home from work. He was emphatic they could not have gotten into the basement because the door was locked and because he and his wife always had their eye on the girls. He confirmed that their behaviour was inappropriate towards T. Jr. and ultimately it led to the termination of the babysitting arrangement. His evidence seemed to dovetail with other defence evidence in a vain effort to convince the court that it was virtually impossible for the defendant to have committed the offence charged. I believe that to the best of his recollection he was home some of the time to assist his wife with the babysitting of the girls, especially on Fridays when he was able to pick them up from school, but not on all occasions and at all times as he has testified. He was working full time and on his own evidence, would not arrive home until 4:00 pm at the earliest. I found W. Sr.’s evidence was credible in some respects but scripted in other respects to support the untenable defence position that the defendant would never have had the opportunity to commit the alleged offence. It is not lost on me the anguish he undoubtedly has experienced that by supporting his one son against these allegations, he effectively has lost his relationship with his other son.
134M. gave evidence in a very forthright and candid manner. Her evidence was not seriously shaken by the Crown in vigorous cross-examination. She explained that she came to testify to make sure the defendant got a fair trial. She candidly stated that he had not been a good husband to her mother, but he had been more of a father to her than her biological father. In other words, she did not try to make the defendant out as the greatest person in the world and someone for whom she would perjure herself. Her recollection of the football game and the participants varied somewhat from that of the defendant. In addition, her recollection of when and where the defendant and the complainant had their private conversation varied from that of the defendant. She recalled it occurring before dinner in the field where they were playing football. However, her general recollection of the complainant staying for dinner at the Wendover townhouse was generally consistent with that of the defendant. The fact that both she and the defendant remarkably could remember at this trial some eight or nine years after the event that the children had hot dogs for supper again made me wonder to what degree their evidence was tailored.
135The complainant emphatically denied these events occurred, other than for the fact she did play football with M., her brother and a boy named Jonah.
136I have no way of telling who was telling the truth with respect to the issue of the dinner invitation and this incident. As with young children, the passage of time blurs memories and details of events. In the end, M. was not privy to the conversation between A and the defendant, if there in fact was one. The defence submits that the complainant’s alleged conversation with the defendant is inconsistent with her allegations against the defendant and destroys her credibility. The Crown alleges that it is inconceivable that the defendant remembered the details of the food served and eaten at that meal just as M. did. Furthermore, he effectively cross-examined the defendant on his failure to have A immediately recount her alleged apology to his wife T. who was nearby, especially as he had just the year before raised the issue with M. about the same allegations.
137In the end, this evidence of M., some 10 or 11 years after the time of the alleged offence, does not cause me a reasonable doubt that the sexual invitation made back in 2001 by the defendant did occur and that there was touching of the defendant’s penis which took place as described by A in the DVD video.
138The delay in re-opening this case until after the death of the complainant’s grandmother in March 2015 also does not raise a reasonable doubt of the defendant’s culpability in my mind. While the complainant denied waiting until her death, her father’s testimony was contrary to that. As Ms. Smordin noted, her grandmother could have given important defence evidence with respect to the opportunity the defendant had to commit the offence, the incidents of the girls “attacking” or “harassing” T. Jr., the incident of touching the defendant’s genitalia when he was asleep in his son’s room, and the confrontation with the girls’ mother K. about her alleged extra-marital affair just four or five days before the first allegation was made by the complainant to L.W.. As Ms. Smordin submitted, if the Crown waited for a key witness to die before prosecuting a case, it would be an abuse of process and grounds for a dismissal.
139I do not believe that the motive of the complainant in waiting to re-open the charges was to await the disappearance of her grandmother as a witness. She had clearly intended from an earlier time to re-open the charges against her uncle. She made that clear to her father. She candidly acknowledged that she had suffered from anxiety in the period 2013 to 2015 and had had to seek treatment for it. When she spoke with Detective McKenzie on April 27th, 2015, she stated that finally she was doing something for herself. She was just short of her 18th birthday and had just seen her uncle again at her grandmother’s funeral. I accept her evidence that her motivation for re-opening the charges was not governed by waiting to remove her grandmother as an adverse witness. I find that she did not have any motive other than feeling she was mature enough at that stage of her life to face the barrage of questions which she would face if she convinced the Crown to proceed with the charges. In my view, the evidence which theoretically could have been given by her grandmother was not in her contemplation at the time she chose to proceed. I am of the view, that most of the evidence her grandmother would have been able to provide was given by the other defence witnesses, including the defendant, his son and his father.
140And finally, I am acutely conscious that two and one half years after the alleged occurrence, the recollection of a little seven year old girl can fade, the facts can become jumbled with what she believed happened and her statement of recollection may subconsciously be altered by things she has learned in life in the interim between the event and the interview. In that respect, I have been guided by the words of our recently retired Chief Justice of the Supreme Court of Canada. When adults testify about events that occurred when they were children, there are several considerations I must take into account. These were neatly summarized by McLaughlin J. in R. v. W.(R.), 1992, at para. 27:
Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. 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.
141In the same judgment at para. 26, McLaughlin J. reiterated the court’s position that this does not mean that the evidence of children is not subject to the same standard of proof as that of adults. She emphasized that a “common sense” approach to the evidence of children should be taken “taking into account the strengths and weaknesses which characterize the evidence offered in the particular case”.
142I have attempted to do that in this difficult case. There are some inconsistencies in A’s evidence as outlined so capably by Ms. Smordin in her submissions. A agreed on several occasions that her recollection of events as an adult were not in accord with what she recounted as a child. Despite that, I am convinced that A was truthful in her evidence both in the DVD video and in her sworn testimony before this court that her uncle, the defendant, did invite her to participate in a sexual act by touching his penis in some way with her mouth in the basement of his parents’ home during the autumn of 2001. I have carefully reviewed that DVD video several times and do not find that the complainant, then a little seven year old girl, was stating anything other than her recollection of a very memorable, unforgettable event, the seriousness of which at that time she really did not understand. As an adult, the fact of its occurrence is still embedded in the complainant’s mind and life experience as a young lady, though some of the surrounding circumstances have understandably faded with the passage of time.
143Using the common sense approach urged by the Supreme Court of Canada, I have no doubt the event described by her occurred, despite relatively minor variations in the circumstances recalled by her both at a younger age and as a young, adult lady today. The one constant is her knowledge that her uncle took advantage of her by inviting her to touch his penis with her mouth.
Conclusion:
144I am satisfied beyond a reasonable doubt that the Crown has proved its case beyond a reasonable doubt and that the defendant is guilty of the offence charged.
Turnbull, J.
Released: July 20, 2018.
CITATION: R. v. T.B., 2018 ONSC 4464
COURT FILE NO.: CR-16-93
DATE: 2018/07/20
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
T.B.
REASONS FOR JUDGMENT
TURNBULL J.
Released: July 20, 2018