CITATION: R. v. C., 2018 ONSC 4986
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J.K.C.
Brigitte Laplante, for the Crown
Paolo Giancaterino, for the Defendant
HEARD: May 7 to 11, 14 to 17, and July 16, 2018
An Order was made under section 486.4 of the Criminal Code that the identity of the complainants and any information that could disclose their identity, including the names of witnesses, not be published in any document or broadcast in any way. This decision uses initials, with little identifying information, and may be published.
reasons for DECISION
Introduction
1The accused is charged with 12 counts involving sexual and physical assault. The indictment alleges:
(a) Complainant H, six counts: sexual interference - touching H with his penis; invitation to sexual touching - counselling H to touch him with her mouth and vagina; sexual exploitation - touching H, a young person in a relationship of dependency, with his penis; sexual assault; assault; and assault with a weapon - belts, sticks, and hangers.
(b) Complainant P, two counts: assault; and assault with a weapon - belts, sticks, and hangers.
(c) Complainant J, two counts: assault; and assault with a weapon - belts, sticks, and hangers.
(d) Complainants N, two counts: assault; and assault with a weapon - belts, sticks, and hangers.
2The accused was acting as the father of H (born 1995) and P (born 1996). He was the biological father of J (born 1998) and N (born 2000). The allegations cover a period of 16 years, from 1995 until December 2011, when the accused lived with the complainants and their mother.
Background
3The Crown’s witnesses were the four complainants.
4H testified that her first memories are of being sexually and physically abused by the accused. She described instances of the accused:
rubbing his penis against her vagina until he ejaculated;
touching her over and under her clothing, touching and rubbing her vagina;
putting his penis in her mouth, while he masturbated;
licking her vagina;
putting his finger in her vagina; and
bashing her head and beating her and her siblings on a regular basis with his hand, a stick, a belt, hangers, or anything he could find.
5However, H gave conflicting evidence. In addition, she agreed during her cross-examination that she does not remember many specifics and that her memories are very fuzzy. She described some of her memory as “phase memory”, with fuzzy bits and pieces. Often she said that she could not remember specifics and often she said “I think” because, as she admitted, some memories are not clear. She admitted that for some memories she assumes that it happened. She also used “probably” in describing some memories.
6P, J, and N testified that the accused would frequently hit them with his hand, his head, a belt, a broomstick, or hangers.
7All complainants described the accused as an abusive father who spent most of his time in his boxers, watching porn in his room, and masturbating under the covers. All complainants testified that their mother was usually, if not always, present in the home, and usually also in the same bedroom as the accused. The mother was not charged and did not testify.
8All complainants agreed that the Children’s Aid Society of Ottawa (CAS) was regularly involved with their family, that it never noticed an injury to any of the complainants, and that it never confirmed an instance of abuse.
9An agreed statement of facts was filed and it confirms that the CAS attended at the family residences on a number of occasions. The visits were both “announced” and “unannounced”. The agreed statement of facts incorporates a chart showing dates that the CAS attended at the family residences. It shows that the CAS attended in 1997, 1999, 2004, 2005, 2006, 2007, 2008, and 2009. Most visits were announced except for three that were unannounced. The children were frequently interviewed and never complained of abuse; no injury was ever observed by the CAS.
10The agreed statement of facts also provides that during the time period of the alleged offences, all of the complainants were attending school. Throughout that time, school officials were required to report suspected child abuse. No report of this nature was made by any of the children’s teachers.
11The accused testified and denied all allegations. He said that he cared for all of his children and that these allegations originate from the maternal grandfather. He also said that he suffered two strokes during the last six years, which left him with difficulties communicating and finding words. The accused had difficulties finding words and had extremely poor recollection of events and of dates.
12The defence also called the long-time family doctor. He testified that he was the family doctor of the mother, the accused, and their five children from the birth of each of the complainants until at least December 2011 (the youngest child, T (born 2004), did not testify and the one count of physical assault against her was withdrawn by the Crown). The family doctor testified that he never observed any signs of abuse, neglect, or physical violence. However, despite the frequent visits (75 for H, 85 for P, 57 for J, 42 for N, and 46 for T), the family doctor had limited opportunity to observe the children because the children rarely needed to undress during their medical consultations. Moreover, although the family doctor did occasionally see some bruises on the children, he was satisfied with the explanations provided by the parents.
13The defence also called a second cousin of the accused. The cousin resided with the accused and his family during the time that they lived in their last residence, from 2007 or 2008 until sometime after the family left the accused in December 2011. He testified that he never saw the accused inappropriately disciplining or inappropriately acting towards any of the children. He said that the children were hyper and that the accused would ask the children to be quiet. However, the cousin had limited interaction with the accused and the accused’s family. The cousin lived in the basement and worked seven days per week, from morning usually until late. He saw the accused’s family very briefly early in the morning and occasionally briefly later at night.
Issues
14The only issue in this trial is whether the Crown has proven beyond a reasonable doubt that what is alleged happened. The other elements of the offences charged are not in issue (for example: the age; that any such touching would have been for a sexual purpose; that the accused was in a position of trust or authority; that any such force would have been applied intentionally, without consent, and would have exceeded what could have been reasonable in the circumstances is not in dispute).
Applicable Law
15The accused is presumed to be innocent and the burden of proving his guilt beyond a reasonable doubt is always on the Crown.
16Proof beyond a reasonable doubt is a fundamental principle of our justice system. It is a doubt based on reason and common sense that logically arises from the evidence or absence of evidence. A reasonable doubt is not far-fetched or frivolous; it does not involve proof to an absolute certainty or proof beyond any doubt, which is often impossible. On the other hand, it is not enough for the Crown to prove that the accused is probably guilty; probable or likely guilt is not proof beyond a reasonable doubt (see R. v. Starr, 2000 SCC 40, 190 D.L.R. (4th) 591, at para. 231).
17To be convinced beyond a reasonable doubt means to be certain that an offence has been made out before convicting someone of the offence (R. v. Lifchus (1997), 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, 150 D.L.R. (4th) 733). A finding of not guilty is required where the evidence only manages to convince the decision-maker that an offence probably or likely occurred.
18Whether the Crown has proven its case beyond a reasonable doubt is the core issue in this trial. Central to this determination is the credibility and reliability of the witnesses.
19Credibility relates to a witness’s veracity, whereas reliability concerns the accuracy of the witness’s testimony. Both require a careful assessment (see R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at paras. 41-44, and see also R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, 80 O.A.C. 161, and R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 16 O.R. (3d) 295, 68 O.A.C. 22). A witness may believe his or her evidence to be true yet that evidence may not be reliable.
20Demeanour evidence alone is a notoriously unreliable predictor of the accuracy of the evidence given by a witness as “the law does not clothe the trial judge with divine insight into the hearts and minds of the witnesses”. Demeanour should not be sufficient where there are significant inconsistencies and conflicting evidence (see R. v. Norman, at para. 55). A most valuable method of assessing witnesses is to consider the consistency of what they have said on a material matter.
21The four complainants were young adults when they testified at trial about events that transpired when they were children and teenagers.
22The standard of proof is not to be lowered when dealing with the credibility of children; rather, a contradiction in a child’s testimony should not necessarily be given the same effect as a similar flaw in the testimony of an adult: “While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it” (see R. v. B.(G.) (1990), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, 77 C.R. (3d) 347, at para. 56).
23In R. v. M.(A.), the Court of Appeal provides additional guidance on assessing the credibility and reliability of a complainant in the context of young adults testifying about childhood events. At paras. 9 to 13 (2014 ONCA 769, 123 O.R. (2d) 536):
First, every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding, and ability to communicate: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 134.
Second, no inflexible rules mandate when a witness' evidence should be evaluated according to "adult" or "child" standards. In its provisions regarding testimonial capacity, the Canada Evidence Act, eschews any reference to "adult" or "child", preferring the terms "14 years or older" and "under 14 years of age". An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children's evidence: W. (R.), at p. 134.
Third, despite this flexibility, there are some guiding principles. Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: W. (R.), at p. 134. See also, R. v. Kendall, 1962 CanLII 7 (SCC), [1962] S.C.R. 469.
Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what he has said on other occasions, whether or not under oath: R. v. G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.
Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.
24This matter also involves a consideration of whether the complainants corroborated some of the specific allegations, and whether there was possible collusion between them.
25In The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015) David M. Paciocco and Lee Stuesser describe the manner in which a court should treat the issue of corroboration/collusion between witnesses at page 66:
Collusion can arise both from a deliberate agreement to concoct evidence as well as from communication among witnesses that could have the effect, whether consciously or unconsciously, of colouring and tailoring their description of the impugned events. In other words, the term is not confined to intentional conspiracies to mislead.
Where there is an air of reality to the prospect that the probative value of the evidence is tainted by collusion it is not incumbent on the defence to prove that tainting. The Crown is required to satisfy the judge on a balance of probabilities that the evidence is not tainted with collusion.
26The accused testified and called evidence. In R. v. W.(D)., the Supreme Court of Canada set out the manner in which a court is to consider testimony from an accused person. First, you ask whether you believe the accused and if you do, you must acquit. Second, if you disbelieve the accused, you must still ask whether his or her evidence nonetheless leaves you with a reasonable doubt about his or her guilt, and if it does you must acquit. Finally, even if the accused’s evidence does not leave you with a reasonable doubt, you must still consider whether the totality of the evidence has proven guilt beyond a reasonable doubt (see R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, 3 C.R. (4th) 302, at para. 11).
27The rule of reasonable doubt applies where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case. In such instances, the Court “must relate the concept of reasonable doubt to those credibility findings” such that to have reasonable doubt it is not necessary “to believe the defence evidence on that vital issue; rather, it is sufficient if – viewed in the context of all of the evidence – the conflicting evidence leaves [the Court] in a state of reasonable doubt as to the accused’s guilt” (see R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114).
28Indeed, proof beyond a reasonable doubt is not a choice between two alternatives; a court need not resolve conflict in evidence. As indicated by the Court of Appeal: “There was, of course, a third alternative, namely, if a reasonable doubt existed, in view of the conflicting testimony, as to exactly where the truth of the matter lay, it would, of course, require an acquittal” (R. v. Nimchuk (1977), 1977 CanLII 1930 (ON CA), 33 C.C.C. (2d) 209, 1977 CarswellOnt 980, at para. 7 (Ont. C.A.)).
29Consequently, a reasonable doubt can arise from evidence that the court ultimately does not accept. For example, in R. v. Danks (1994), 22 W.C.B. (2d) 487, 1994 CarswellOnt 2605, at para. 8 (Ont. C.A.), even if the evidence relating to the alibi defence was ultimately not accepted, this evidence could nonetheless leave the court with a reasonable doubt: “if you do not accept that evidence but you also do not reject it so that you have a reasonable doubt whether that evidence is true then clearly you would have a reasonable doubt about whether Mr. Danks was the shooter and you would be required to acquit Mr. Danks”.
30Conversely, a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible Crown evidence may constitute a sufficient explanation for the rejection of the evidence of an accused (see R. v. T.M., 2014 ONCA 854, 318 C.C.C. (3d) 421, at para. 68; R. v. J.A., 2010 ONCA 491, 261 C.C.C. (3d) 125, at paras. 22-23).
31When considering the testimony of a witness, a court can accept all, some, or none of a witness’ testimony.
32To establish sexual interference, the Crown must prove beyond a reasonable doubt: that the complainant was under 16 years of age; that the accused touched the complainant; and that the touching was for a sexual purpose.
33To establish invitation to sexual touching, the Crown must prove beyond a reasonable doubt: that the complainant was under 16 years of age; that the accused invited, counselled, or incited the complainant to touch the accused or the complainant; and that the touching that the accused invited was for a sexual purpose.
34To establish sexual exploitation, the Crown must prove beyond a reasonable doubt: that the complainant was a young person at the time (16 years old or more, but less than 18 years old); that the accused touched the complainant; that the touching was for a sexual purpose; and that the accused was in a position of trust or authority towards the complainant.
35To establish sexual assault, the Crown must prove beyond a reasonable doubt: the intentional physical touching of the complainant by the accused; and that the touching was of a sexual nature. In this case, H was less than 16 years old at the time and therefore consent to the activity is not an available defence (see s. 150.1 of the Criminal Code).
36To establish assault, the Crown must prove beyond a reasonable doubt: that the accused intentionally applied force to the complainant; that the complainant did not consent to the force that the accused intentionally applied; and that the accused knew that the complainant did not consent to the force that he intentionally applied. The consent of children is limited to conduct that is consistent with the purpose and rationale underlying the basis for the consent and there is no deemed consent unless the force is used to care for the child and does not exceed what is reasonable in the circumstances (section 43 of the Criminal Code and R. v. E.(A.) (2000), 2000 CanLII 16823 (ON CA), 35 C.R. (5th) 386, 135 O.A.C. 338 (Ont. C.A.)).
37To establish assault with a weapon, the Crown must prove beyond a reasonable doubt: that the accused intentionally applied force to the complainant; that the complainant did not consent to the force that the accused intentionally applied; that the accused knew that the complainant did not consent the force that he intentionally applied; and that a weapon was involved in the accused’s assault of the complainant.
38As indicated above, the only element of the offences charged that is in issue in this trial is whether any of what is alleged happened.
Positions of the Parties
39The Crown argues that there is no evidence of collusion or of animus (other than what would be expected). It argues that any memory issue with any of the complainants is normal considering their respective circumstances and age at the various times. The Crown argues that the evidence of the accused is not believable and should not leave the Court with a reasonable doubt. The Crown argues that any resulting bruises would not have been visible to the authorities (which explains why none were ever observed). It argues that the evidence of the complainants proves the guilt of the accused beyond a reasonable doubt.
40The defence argues that the evidence given by the complainants is frequently inconsistent, that it is often contradicted by that of other complainant(s), that there is evidence of collusion, and an absence of any evidence that third parties frequently in contact with the children observed anything. The defence argues that the evidence of the complainants is generally vague and without specifics, and that when specifics are offered that the specifics are inconsistently mentioned or contradicted by earlier statements. The defence argues that even if the accused’s evidence does not leave the Court with a reasonable doubt, the totality of the evidence has not proven the guilt of the accused beyond a reasonable doubt.
Analysis
Evidence of the Accused
41The accused testified and presented evidence. He denied all allegations, saying that he never hit any of the complainants and never touched H in a sexual way.
42The accused had extremely poor recollection of events and of dates. He could not remember when he worked, when he resided with the family, when he had surgery for a hernia, and his information about the strokes that he suffered in 2012 and in 2013 was confusing. He stated that his strokes left him with difficulties communicating, and that they affected his recollection. Overall, he was not a convincing witness.
43For example, the accused strongly denied that their home was poorly kept, despite what is noted in the reports from the CAS. He also denied that he frequently wore boxer underwear at home, contrary to a CAS report that indicates that he answered the door in boxers. These reports did not refresh his memory and he denied their content.
44Furthermore, the accused’s explanation that he watched the news and not pornography was also not convincing. As well, the accused was not credible when he stated that he did not watch television with the children in his bedroom, that the children did not come into his bedroom, that he did not have any alcohol in the home, that he did not go into the girls’ room ever, and that he rarely ever touched his children even to show affection because each of these statements, made as an absolute, sounded exaggerated or not true. Similarly, I did not believe the accused when he said that he never raised his voice with the children and when he indicated that he helped the children with their homework because the accused had five extremely active young children and because he sent them to an English school and his English is limited.
45Consequently, I do not believe the evidence of the accused and his evidence does not leave me with a reasonable doubt.
46I therefore next consider whether the totality of the evidence has proven the guilt of the accused beyond a reasonable doubt.
Totality of the Evidence
47The complainants were quite young when the events allegedly occurred. As well, they were young when they were first interviewed by police, and later when they testified at the preliminary inquiry. Moreover, P has autism. All of this is considered and factored into my assessment of their evidence.
48Overall, I have a number of concerns regarding the evidence of the complainants, including: it is not always clear whether they remember or whether they were told certain events; they have very little recollection of any specifics for some of the described events; and, their respective version of events is often inconsistent and contradicted by their siblings.
Collusion
49H was 22 when she testified at trial. She indicated during her cross-examination that after the family left the accused in December 2011, she did not tell her brothers what had happened to her, she did not tell her mother, and her brothers did not tell her what had happened to them. This is contradicted, to varying degrees, by each of P, J, and N who indicated that they did discuss these events.
50P stated, during his cross-examination, that his siblings told him what the accused did to them.
51J indicated, in cross-examination, that they spoke about what had happened after they left their father; explaining that they spoke about it shortly after they left in order to help them fill-in the blanks.
52N said, during his police interview in February 2012, that his mother told him after they left the accused that the home was abusive and he indicated that his mother said that the accused had raped H because she needed money to go see the Twilight movie. This description of the Twilight movie incident could not have been known by the mother or by N if H did not tell (H denies telling – H initially said that she never told her mother and later said that she told her mother once that she was abused by the accused but that her mother suppressed it, blaming instead H’s uncle).
53During his cross-examination, N also stated that his mother told him that H had been raped by the accused and he also said that he had received information from his maternal grandfather that H had been raped by the accused. N also testified, during his cross-examination, that the siblings spoke with their mother and with H about what had happened. He said that they spoke before they went to the police and that he received details from his siblings in 2012, including about what had happened to H, about being hit, and about the kind of weapons that were used. He also said that after 2012 they spoke less often about it, very little he said, but indicated that there were conversations both before and after his interview with the police.
54It is unlikely that H would not remember having any conversation about these events with any of her siblings, mother, or maternal grandfather. That H denies what her brothers admit is concerning because it raises the question of why is H not prepared to admit having any such conversation (which would be rather normal considering the alleged circumstances). This is worrisome as it raises the prospect that the probative value of the evidence is tainted by collusion (the onus is on the Crown to establish on a balance of probabilities that the evidence is not tainted with collusion).
55These concerns are not attenuated by the fact that H has been living with her maternal grandfather since the family left the accused in December 2011, and that admittedly the maternal grandfather does not appreciate or think highly of the accused.
Little Recollection of Specifics
56Many of H’s memories were vague. For some of her memories, H could not remember how or where it happened and occasionally she indicated that she “thinks” it happened.
57For example, H was certain that the accused put his penis in her mouth but she initially had a blank and could not describe this. Later, she said that the accused put his penis in her mouth once or twice and that these were uncomfortable moments. However, she remembered very little specifics and, more importantly, she described this as remembering a moment and she eventually agreed that she “thinks” this happened.
58When describing that the accused licked her vagina, H could not describe when or where but thought or saw a moment when he sat her on a freezer. At some point she indicated that she was not sure if she should say this because she was not certain, and she later admitted that she is not certain and that she thinks this happened. She also said that the accused would put his finger in her vagina but she did not remember specifics about this and was not certain.
59I am mindful that children may not be able to recount precise details but during her cross-examination at trial H was 22 and she agreed that she said “I think” because she does not remember specifics, because she does not know how often or where it occurred, and she ultimately described the above as “probably”.
60When describing the accused touching her over and under her clothing when she was young, H could not describe how it happened although she said that she was quite young at the time (maybe six or seven years old). It is understandable that she would not remember many specifics about this but she admitted that she said “I think” because she is not clear about this. She described this as a “phase memory” with bits and pieces and, more importantly, she admitted that she assumes that it happened and she does not specifically remember if it happened the way that she described it.
61H was unable to say whether the accused’s penis was hard or soft during the many alleged sexual events; she answered that she did not look and zoned out.
62H said that their father physically abused the siblings on a daily basis, but she provided little by way of detail or specifics. For example, she said that belts were frequently used, as were broomsticks and hangers, but she did not remember any specific incident involving a belt. She said that their father would hit them with reckless disregard and that it left bruises that were usually not visible to others. However, at the preliminary inquiry, she said that it left cuts and scratches that were occasionally visible. This refreshed her memory and she then indicated that on occasion bruises were visible to others but could easily be hidden under clothing.
63N admitted at trial that he frequently used words such as “I think” during his earlier testimony. He indicated that his memory is not clear, that he remembers bits and pieces. He explained that in 2012, when he spoke to the police, he pieced together a number of different recollections and that his frequent use of “I think” at the preliminary inquiry could mean that he is guessing or that he is not sure. N also admitted at trial that he was occasionally guessing during the police interview in 2012.
64When P was first interviewed by the police in February 2012 he was 15 years old. He was asked at the outset what was not good at home and his first answer was that “mom was fight”. He was asked to describe this and his answer was that his parents were yelling a lot and that his dad was hitting his mom. His siblings testified that there was no physical violence against their mother.
65In addition, the evidence of one or more of the siblings is occasionally contradicted by the evidence of the other(s).
Inconsistencies, Contradictions and New Evidence
66The most important contradictions between the siblings concern the timing and the nature of the alleged sexual acts by the accused against H - the alleged observations of N and P are not supported by the evidence of H. This is an important contradiction that is difficult to explain.
67During his police interview in February 2012, P indicated that his father was with H almost all the time and that he did not know why. He said that his father did not spend a lot of time with the other children, only with H, in his bedroom. He said that his mother was not in the bedroom when his father and H were there.
68J did not notice this or did not testify about this.
69N was only 12 when he was interviewed by the police in February 2012 (he is almost five years younger than H). He appeared to be a smart young boy. He indicated that their father masturbated under the bed sheets, that he could see his hand moving, that their mother would tell their father to stop masturbating, and that it happened all the time.
70N said that H was occasionally there with their father, sitting on the bed sometimes over and sometimes under the bed sheets, but that she was not alone with their father. He said that we could see the sheets moving. He also said that he saw their father turn on his side in an effort to touch H’s back or butt with his penis, while lying on the bed with her. He later added that this is what his grandparents and mother said. Contrary to P, he said that their mother was usually also on the same bed, sometimes playing video games. He also said that he saw their father rub H’s leg and go into her pants and rub her vagina while H and the accused were on the accused’s bed. He then said that he sometimes saw this because “sometimes were under the blanket…like usually all of us, sometimes”, that he was in the middle with his mom and sister and that he would “look under the blanket and I see it”.
71N said that he saw this in 2010 or 2011, and during his cross-examination was not certain about when but indicated that it happened during the last three years before they left; they left in December 2011. Contrary to what he had indicated to the police in 2012, N admitted that he did not actually see H being rubbed by the accused under the bed covers; he corrected this at the preliminary inquiry. However, he said that his father’s grinding on H happened many times and that he likely put all of these recollections into one.
72All of this is implicitly contradicted by the evidence of J, who never saw any grinding or anything sexual relating to H, and, more importantly, it is contradicted by the evidence of H.
73Firstly, H contradicts this with regards to timing. When H was interviewed by the police on December 29, 2011, she said that the accused had not done anything to her for about a year and half: “That was basically it for a couple… for like a year and a half now he hasn’t done anything to me”. This contradicts the evidence of N that he saw this in 2010 or 2011, or during the last three years before they left. It also implicitly contradicts the evidence of P that it happened almost all the time.
74Next, and more importantly, H contradicts this with regards to frequency, location, and nature of these events. During her police interview on December 29, 2011, H indicated that the accused wanted us in his room watching TV with them sometimes but she stated that she did not want to do anything with him because she felt isolated and wanted to be outside, to be free. H stated that the accused was watching movies with us but that she was never there because she didn’t want to sleep or to sit down on those sheets because she knew those things and his room was disgusting; that he masturbated, never changed the sheets, and that his room smelled.
75This contradicts both P and N describing H in their parents’ room. In addition, during her testimony, H did not describe any occasion when the accused rubbed her legs or vagina while on his bed, as described by N. She said that she was touched over and under her clothing when she was very young but that it was very fuzzy and that she did not really remember. N is almost five years younger than H and could therefore not be describing the same events.
76Other contradictions relate to the couch incident, the Twilight incident, and the bedroom incident described by H.
77H described a memory of a sexual event with the accused at night on the couch in the living room. When she was interviewed by the police, in December 2011, H indicated that at some point her brothers came running downstairs for water and that her father got up, covered her up, gave the boys water, and told them not to come back downstairs. However, at the preliminary inquiry, she said that it was her mother who came down for water while they were on the sofa. At trial, she agreed that it was her mother who came down and not her brothers, but she still remembered the accused saying do not to come down again; this does not make sense with her mother, as it did in the original version involving her younger siblings.
78H described a Twilight incident, how she wanted to buy this new video and returned home for more money only to be sexually abused by the accused. In her December 2011 video statement she described this event as remembering moments, while at trial her memory of this was more precise. In her written statement she indicated that he was forcing himself on top of her, while in her video statement and at trial she said that he put her on top of him.
79H described a bedroom incident, while her younger sister was sleeping in the same room. She said that she tried to nudge the accused away, making some noises but that he pulled down her pants and his boxer shorts and rubbed his penis against her vagina until he ejaculated. However, at trial she remembered this event differently from when she first described it to the police. At trial she remembered that her younger sister was in fact in the same bed with her and that the accused therefore did not get what he wanted, and that he ended up leaving, frustrated.
80At trial, H indicated that her father squeezed and grabbed her rear end for a sexual purpose on a regular basis. However, she admitted on cross-examination that this was the first time that she had mentioned this.
81P, N, and H stated that they saw their father frequently masturbating under the bed covers while watching pornography. J remembered pornography but did not remember ever seeing his father touching himself or masturbating under the bed covers.
82When N was interviewed by the police, in February 2012, he described his youngest sibling, T, as someone who was also frequently on her father’s bed while he watched porn and masturbated. He stated that he saw his father roll over to bring his penis closer to the back and butt of T while he masturbated under the sheets. No one else described such events. During his cross-examination, N said that his mother and siblings were present when this occurred – no one else described this. N also admitted during his cross-examination that in 2012 he was guessing when he said that his father was trying to bring his penis close to the back or butt of T; he said that he saw grinding but was not sure if it was the back or the butt. According to N, others were present and saw this, but no one else described this.
83At the preliminary inquiry, N stated that P had told him that he had been slapped in the back with the flat part of the blade of the knife by their father on about five occasions. However, at trial N did not remember P telling him about these events, and these events were not mentioned by P. The evidence of N with regards to head butting by their father is not the clearest but the gist of his evidence on this issue contradicts the evidence of J and P.
84In his police statement N described that their father would rub his head against his, describing a rubbing motion. He then said that their father never head butted him and that he never saw him do it to others. Later he described being head butted by his father but later said that his father rubbed his head. However, in his statement to the police he also said that he never saw their father head butt P, but saw him rubbing his head against P. When asked, at the time, if he ever saw their father hit with his head he said no. At the preliminary inquiry he described his father rubbing his head against P’s head and at trial he agreed that what he saw was not like a head butt but like a head rub that only happened to P and no one else. This is contradicted by J who said at trial that he was head butted two or three times by the accused and it is also contradicted by P who said in 2012 that his father hit with his head occasionally when he got mad. P said that the accused head butted him, H, J, and N.
85P and N indicated that the accused also hit the youngest sibling, T, while J stated that he never saw the accused use physical violence on T.
86J, P, and N indicated that their parents would coach them about what and what not to say to the CAS. J said that their parents would tell the children to say that they were never hit. P said that his mother and father told him not to tell the CAS certain things. N said that they did not tell anyone because they were told by their mother and father not to tell. On the other hand, H said that the children were not told what to say and were not threatened by their parents not to tell anyone.
87Another contradiction is how some of the complainants described family life. It is clear that living conditions at home were very difficult for the children. Both parents did not work, the many residences in which the family lived in over the years were dirty, and family life was no doubt quite difficult. All complainants testified that their mother spent most of her time in her room (which was also the accused’s room) and that she did not contribute much. With regards to their father, the accused, P and J each described the accused as nonetheless a caring father who took care of them, at least to some limited extent. P indicated that the accused would prepare breakfast, help him get to the bus in the morning, and that he would greet him from school. P also indicated that the accused made lunches and prepared supper, that he made sure they had food and stuff. J indicated that his father was a nice person in that he took care of them, took them where they needed to go, and gave them money if needed. The cousin, who roomed in the basement during some of the last years, described that when he left in the morning he saw the accused and the children having breakfast. H admitted that she had to lie to P and N in order to convince them to leave the accused in December 2011. P was not sure at the time why the family left the accused and he had to be told (which may or may not be attributed to his autistic condition – he answered questions quite well at trial) and during his cross-examination he added that there was more drama at his grandfather’s, with grandpa yelling, so we moved again. Having heard the evidence, it is hard to imagine that this could constitute more drama than what was described by the complainants. On the other hand, H indicated that her parents prepared no meals, that there were locks on the freezer and on the cupboards, that their parents would make the children cook for them and withhold food, and that the children were generally left to fend for themselves.
88At trial, J testified that their father would get angry pretty quickly. However, at the preliminary inquiry he testified that their father would not get upset quickly or easily. During the 2012 police interview J was asked if his father hit him with anything but his hand and he did not say that his father head butted him; he was asked specifically if his father hit him with his head and he then said no. In 2012 he said that his father only hit them with his hands. At the preliminary inquiry J did not say that his father head butted him. However, at the preliminary inquiry J said that their father would use other items against the children, but, at the time, he was not specific about what their father used; he could not remember specifics at the time. But at trial J said that he was head butted two or three times by his father, that he was hit once with a broomstick on his arm, that he was hit with a belt, that he saw his brothers being hit with a broomstick, and that he saw the accused break a hanger on P’s back. At the preliminary inquiry he said that he had bruises on his arm, red marks, but at trial he did not remember having bruises or marks.
89None of the CAS, the family doctor, the school personnel, and the cousin ever observed anything, and the children never complained to any of them. Admittedly, they all had limited opportunities to notice anything and the family could have concealed what was occurring.
90The complainants were young when these events allegedly occurred and their age ranged between 12 and 16 when they were interviewed by the police. Adopting a flexible approach considering their age and P’s limitations, we realize that the contradictions and inconsistencies do not all relate to peripheral matters such as time and location. Some contradictions and inconsistencies concern material issues relating to the observations and to the nature of the alleged events.
91Some of the events described by H allegedly would have happened in a busy house, with four other children. Yet these frequent events, as described by H, including specifically the Twilight event that allegedly occurred in the morning, on a non-school day, in the living-room, and which likely took some time, were never witnessed by her siblings. On the other hand, the events allegedly witnessed by N and P, when H is on the accused’s bed, are not part of H’s evidence.
92That H frequently said “think”, that she rarely remembered details about and leading up to and after an event, that she was not certain about some events, that she did not know how some events happened but was certain that they did, and that she pieced together moments and memories do not assist my assessment of her reliability as a witness.
93One of the sexual events described by H involved the cousin who testified and denied, as did the accused, that this event occurred. The cousin was reasonable and seemed fair in his description of what he observed. He did not appear to exaggerate. When I also consider the many reliability issues with the evidence of H, I believe the cousin’s denial of this event.
94H was affected by the news that the accused was not her biological father; it is one of the first things that she mentioned during her interview with the police. This and the poor relationship between the accused and the maternal grandfather could impact H’s recollection.
Conclusion
95The cumulative effect of the vague recollection, inconsistencies, and contradictions leaves me with sufficient concerns about the reliability of the Crown’s witnesses to be left with a reasonable doubt on all counts when I consider the totality of the evidence. As a result, I do not believe the complainants beyond a reasonable doubt.
96Consequently, I find the accused not guilty on all counts.
Mr. Justice P.E. Roger
Date: 2018/09/14
CITATION: R. v. C., 2018 ONSC 4986
COURT FILE No.: 12-CA7683
DATE: 2018/09/14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J.K.C.
Brigitte Laplante, for the Crown
Paolo Giancaterino, for the Defendant
HEARD: May 7 to 11, 14 to 17, and July 16, 2018
Mr. Justice P.E. Roger
An Order was made under section 486.4 of the Criminal Code that the identity of the complainants and any information that could disclose their identity, including the names of witnesses, not be published in any document or broadcast in any way. This decision uses initials, with little identifying information, and may be published.
Released: 2018/09/14