Court File and Parties

Court File No.: SCJ 17-049 Date: 2018/10/24 Ontario Superior Court of Justice

Between: Her Majesty the Queen Dawn McCaig, for the Crown

- and -

M. D., Defendant Geoffrey Laplante, for the Defendant

Heard: October 23, 2018

Publication Restriction Notice

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcast or transmitted in any manner. This judgment complies with this restriction so that it can be published.

Reasons for Decision

Evidence

[1] M. D. is charged with sexual interference and sexual assault relating to an incident that is alleged to have been perpetrated on his granddaughter, M. V. The offence is said to have happened in 2008, when Ms. V. was eight years old.

[2] At the time, Mr. D. lived in one part of a duplex house that was located next to a single family dwelling in which his son, C.D., his daughter-in-law, his grandson, C., and his granddaughter, M., lived. His son and daughter-in-law have since separated. M. now lives with her mother. C. lives with his father.

[3] Mr. D.'s home had a front door that has been described as a patio door and a back door that was up about five stairs from ground level. The back door was used as the main entrance to the house.

[4] It is not disputed that, in those days, C. and M. would come home from school on a bus during the school year and go directly to their grandfather's house several times a week. According to Mr. D., C. would go to check on the family dog before coming over to his house and joining M. There, they would often have dinner, apparently because Mr. D. was a good cook and, like a lot of grandparents, made dinners that the kids enjoyed, including spaghetti.

[5] Ms. V. testified that on the day in question, Mr. D. was making spaghetti. She was sitting on an inflatable mattress in Mr. D.'s living room, watching television. She was alone with the accused, who was sitting on the couch, also watching television. At one point, Mr. D. got up to check the pasta and then came to sit beside her on the inflatable bed. She testified that he proceeded to kneel down in front of her, pulled her pants and her underwear down, and began to lick her vagina. She said she was so afraid she could not talk. However, she did tell the accused to get off of her, but he did not do as she asked and she was unable to push him off herself.

[6] She testified that the incident lasted about five minutes. It ended after Ms. V. saw C. run by what I understand is either the patio door that I referred to or a window located to the side of the television, about 15 metres from the back door. At that point, the accused told his granddaughter to pull her pants up and not to say anything. According to Ms. V., they both got up and were standing when C. came into the living room about 10 to 15 seconds later.

[7] Ms. V. said nothing to anyone about the incident afterwards. It came to light after her mother found a suicide note on Ms. V.'s computer one day when Ms. V. was 15 years old.

[8] Mr. D. denies that he ever sexually touched his granddaughter. He testified that he never had an inflatable mattress on the floor of his living room near the television. He said that, on the day this is alleged to have happened, M. was lying on the couch. He testified that C. did pass by the window, but he was preparing the meal at the time. He said it took no more than about five seconds for C. to go from where he was seen to Mr. D.'s living room, where he joined his grandfather and his sister.

[9] Mr. D. suffers from Paget's disease, a condition which affects his bones. His left leg has been broken at least eight times. At present, he is in a wheelchair. He said that he was hospitalized for about eight months about 12 years ago in connection with his disease, at which time he began to use a cane. He testified that, at the time that this is alleged to have taken place, he was already in a wheelchair. He testified that he was not able to kneel at that time in the way that Ms. V. alleges he did.

[10] Mr. D.'s son, C.D., was the only other witness called to give evidence. He was called by the defence in contravention of an undertaking that had been given by the accused’s previous counsel not to call him at trial. That undertaking had been given in order to permit C.D. to remain in the courtroom during the preliminary hearing, which he did.

[11] In what I thought was the right move, the Crown did not seek to enforce the earlier undertaking against Mr. D. and his present counsel. Instead, she was content to rely on the potentially harmful effect that sitting through the preliminary hearing might have on C.D.’s credibility as a witness in this trial.

[12] C.D. testified that he and his wife separated in August 2013. He has not talked to his daughter, M., for three and a-half or four years, since shortly before these allegations came to the attention of the police.

[13] C.D. testified that his father suffers from a number of medical issues. He said that his father was diagnosed with Paget's disease when C.D. was just a teenager. Treatment has slowed the progress of the disease, but it has still taken its toll. His father's left leg is six-and-one-quarter inches longer than the right leg as a result of the number of the times it has been broken.

[14] C.D. testified emotionally about the difficult decision he and his siblings made in 2010 to put their father in an “old age home”. At that time, they could no longer care for him, even with the help of a personal support worker (“PSW”) and the services of the “VON”, which I take to mean the Victorian Order of Nurses. C.D. was asked by defence counsel about his father's mobility in 2008, when this is said to have happened. He testified that 2008 was the year in which they had asked for the help of a PSW and the VON because of the difficulties his father was having with mobility. Before it was decided that the accused should be placed in a home, he had fallen in the bathtub on one occasion and remained there for eight hours. On another, he spent an entire night in the basement when he could not get himself out.

[15] C.D. testified that, in 2008, his father could not have pulled himself up from a seated position on the floor without pulling himself over to a wall to use to assist him to get up. He said that doing so would have been a slow process, taking at least a minute and a-half.

Issue

[16] The sole issue in this case is whether the Crown has proven beyond a reasonable doubt that the incident happened.

Analysis

[17] In their submissions, counsel correctly referred me to the Supreme Court of Canada's decision in R. v. W.(D.), [1991] 1 S.C.R. 742. In W.(D.), the court set out the now well-known formula with respect to cases such as this where credibility is the central issue on one or more of the elements of an offence. Writing for the majority of the members of the court, Cory J. set out the instructions a judge should give a jury as follows (at pp. 757-758):

The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Secondly, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole…

A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [Citations omitted.]

[18] A judge sitting without a jury must instruct himself likewise.

[19] As Ms. McCaig pointed out, it is not necessary to begin the process of weighing the evidence with that of the accused. As the Ontario Court of Appeal held in R. v. D. (J.J.R.) (2006), 218 OAC 37, 215 CCC (3d) 252, acceptance of a powerful Crown case that proves guilt beyond a reasonable doubt is a perfectly good reason for completely rejecting the accused’s exculpatory account. What matters is that the judge or jury assess the evidence of each witness in the context of the evidence as a whole.

[20] For the purpose of my analysis, I think it might be helpful in this case to begin with the evidence of the complainant, Ms. V.

[21] Ms. V. was a believable witness. She was forthright in the way she gave her evidence. None of it seemed contrived. As Ms. McCaig correctly submitted, she was not impeached at all during her testimony. She quite credibly disagreed with the suggestion put to her in cross-examination that she had made up these allegations as a way of getting back at her father for breaking up with her mother.

[22] In contrast, Mr. D. was not a good witness. He first testified as though he could remember the specific occasion on which the assault is said to have occurred. When confronted in cross-examination with the improbability of being able to recall one such occasion out of hundreds, an occasion on which, according to Mr. D. nothing out of the ordinary happened, the essence of his evidence changed. Instead, he said that the children did the same thing every time they came over and that this is what he was referring to when he purported to speak about what happened on this particular occasion.

[23] Mr. D.'s evidence about his use of a wheelchair was contradicted by that of his son. Mr. D. testified that he was already using a wheelchair in 2008. However, C.D. testified his father did not begin to use the wheelchair until he went to the old age home.

[24] Despite these and some more minor shortcomings, I accept Mr. D.’s evidence that M. and C. would come over to his house frequently after school. This is supported by C.D.’s evidence and by Ms. V.’s evidence that they were there at least three times per week. I also accept Mr. D.’s evidence that C. would first check on the dog before coming over to his house and that he would not knock before coming in. This is also consistent with Ms. V.’s evidence that C. did not come with her into Mr. D.’s residence right away, but came over after she got there and went directly into the living room.

[25] In light of this evidence, I find it hard to accept that Mr. D. would pull down Ms. V.’s pants and start licking her vagina in the living room. He would have had to know that C. could and likely would arrive at any time, unannounced.

[26] I am also troubled by another aspect of the evidence.

[27] According to Ms. V.’s own testimony, Mr. D. was using a cane at the time of the alleged offence. However, she made no mention of him using it, or anything else, to help himself up off the floor on which she says he was kneeling. This is inconsistent with the evidence that I accept about Mr. D.’s medical condition at the time.

[28] Although his bias in favour of his father was obvious during his testimony, I do not believe that C.D.’s evidence about his father’s medical condition was affected either by that bias or by what he might have heard at the preliminary inquiry. His evidence that his father could not have pulled himself up from the floor of his living room in 2008 without getting to a wall or using something else to help him up is borne out by all of the other evidence and is not contradicted by any of it.

[29] The evidence shows that Mr. D. was on a steady downward decline from at least as early as 2008. C.D. testified that his father has been living in the old age home since 2010, which is consistent with Mr. D.'s evidence that he has been living in such a home for eight or nine years and was not contested. According to C.D., however, it took quite a while before they were able to obtain a bed for his father at the home. As a result, Mr. D. spent all of 2009 in a long-term care ward at the local hospital awaiting admission. By that point, he was already unable to care for himself due to his mobility issues. It is not hard to accept that Mr. D. required assistance to get up from the floor in 2008.

[30] In cross-examination, C.D. agreed that, in 2008, Mr. D. could find his way to standing up from a seated position “on a piece furniture or something low to the ground” using his hands and his good leg, whichever one that might be. However, he was not asked if his father could get up from the floor, nor how long it would take. I do not see his answer to this question as something that undermines his evidence that it would take his father at least a minute and a-half to have done what Ms. V. says he did in 10 to 15 seconds.

[31] In light of this evidence, I cannot accept Ms. V.’s evidence that Mr. D. managed to stand up without assistance in the 10 or 15 seconds she said it took between the time that she saw C. passing by the window and the time he entered the living room where, according to her, both she and her grandfather were standing.

Conclusion

[32] Based on the difficulties I have with the evidence that I have discussed, I have a reasonable doubt about Mr. D.’s guilt.

[33] In those circumstances, he must be acquitted.

Ellies J. Released: October 24, 2018