Court Information
Ontario Court of Justice
Between: Her Majesty the Queen — and — Solomon Abebe
Before: Justice P. Harris
Judgment delivered on: March 15, 2012
Counsel:
- Alan Speigel, for the Crown
- Chris Hynes, for the Defence
HARRIS, J.:
Introduction
(1) This is a case that demonstrates how perceptions of reality differ depending on one's point of view.
(2) Solomon Abebe is charged that on July 16, 2011 he did for a sexual purpose touch D.V. a person under the age of sixteen years with his legs contrary to Section 151 of the Criminal Code and further that he did on the same date for a sexual purpose, counsel or invite D.V., a person under the age of sixteen years to touch a part of his body, to wit: his penis contrary to Section 152 of the Criminal Code.
The Issues
(3) Most of the evidence is undisputed. There are two issues to resolve: (1) credibility and (2) whether the Crown has proven the offences were committed beyond a reasonable doubt.
(4) The Crown's argument is essentially that based on the young complainant's testimony (D.V. – then 8 years of age) and observations of his interaction between the complainant and Solomon Abebe by Nicole Charles and Robert Stevenson, both offences have been proven to the requisite standard of proof in a criminal case. He further submits that the defendant's evidence is not credible for a number of reasons he advances.
(5) The defence's position is that the complainant's evidence is too inconsistent to be credible and that a significant portion of the evidence on the 715.1 statement provided by the 8 year old complainant is based on leading questions. He submits that what looked like sexually offensive behaviour was, upon a more objective assessment, and with a fuller understanding of Mr. Abebe and his malfunctioning pants zipper – there is a believable innocent explanation for what was observed by all witnesses and that explanation raises a reasonable doubt.
The Evidence
(a) The Evidence from D.V.
(6) D.V., now 9 years of age (8 years old at the time of this incident) gave evidence following the admission of his s.715.1 statement into evidence at the conclusion of a voir dire. In that statement, D.V. describes what happened at D[…] Road on July 16, 2011. One of the statements he made was the following: "he told me to sit on his lap and touch his pee-pee, his wee-wee". He was asked if this occurred at a spot on the grass near a picnic table beside the swimming pool and he agreed saying, "it was where I showed you".
(7) According to D.V., the gentleman (Mr. Abebe) was sitting on the grass and he (D.V.) went over to where the man was because his blanket and food was "over there". He said the man was wearing a blue top and had blue underwear. D.V. said in his statement that the man said, "look at my underwear". "His pants zipper was not done up". D.V. said the man was "laying down, smiling". D.V. then related how another man said he was "going to rip his (Mr. Abebe's) head off". In the statement he gave to police, D.V. said he never touched the man (Mr. Abebe).
(8) In order to provide a fuller understanding of D.V.'s evidence (Exhibit 1, 33 pages), I have provided a selective overview of his responses to questions:
(a) Page 9
Q. "He told me to sit on his lap and... Touch his pee-pee"
Q. Touch his?
A. Wee-wee
(b) Page 11
Q. Okay. So when you went over, what happened?
A. Ahm – nothing. I just saw his underwear, that's all.
Q. You saw his underwear?
A. Uhm – hmm.
Q. Uhm-hmm? And did he say something to you?
A. No.
Q. No? Did you say something to him?
A. No.
(c) Page 13
Q. So you're at the back, by the picnic table?
A. Yeah. My mom's there.
Q. Your mom's there and there's some other people there?
A. Yes (There is no evidence the boy's mother was present)
(d) Page 14
Q. Okay he's sitting on the grass, a few feet from the picnic table.
A. Yes.
Q. And a-again, does he say something to you? Does –
A. No.
Q. he motion you over? Does –
A. No.
(e) Page 15
A. Yeah, and then I went, and I went to go sit on the grass.
Q. And what were you wearing at the time?
A. Jeans (By all accounts, he was wearing the short pants he wore on the video - a bathing suit)
(f) Page 17
Q. How is it you could see his underwear?
A. Cause he said – he forced me to look at it, but I never... I never touched his penis. I just... he just showed me his underwear.
Q. How did he do that?
A. I don't know. He just said "look at my underwear".
Q. And his pants or shorts or whatever he had on, were they done up?
A. Uhm-hmm.
(g) Page 18-19
Q. They were done up. All right. How could you see his underwear if, if his....
A. ... But the .... the zipper wasn't done up.
(h) Page 19
Q. What did he ask you?
A. "Look at my underwear".
Q. Okay. And what did you do?
A. I just....I just looked at his underwear but...
Q. Okay. And then what...
A. ... That's it.
Q. ... What did he do?
A. ...Nothing. He didn't....
Q. ...Noth'......
A. Do anything. He was just laying down and smiling.
Q. ..Laying down and smiling?
A. Yeah.
Q. Did he ask you anything else?
A. No.
Q. You sure?
A. Yes.
Q. Okay. Then what happened?
A. That's all.
Q. Okay. Well then...
A. Me and mom went back upstairs.
(i) Page 22-23
Q. Ahm... so he's sitting on the grass.
A. Uhm-hmm.
Q. You go over and you sit on your towel?
A. Yes.
Q. He tells you to look at his underwear?
A. Yes.
Q. Okay. Does he say anything else to you?
A. Nope.
Q. No? Did he touch you? Did you touch him?
A. No. He never touched me.
Q. Okay. Did you touch him? No?
A. I never touched him.
Q. Okay. All right. Is there anything else you can tell me?
A. Nope.
Q. No?
A. There's nothing else. That's all
(j) Page 24-25
Q. What did you tell your mom?
A. Ahm, ___, that he was touching me.
Q. Okay. You told your mom...
A. That he was touching ... mean that... oh, that...
I told my mom that he said to look at his underpan'...look at his underwear.
Q. All right. Did you tell your mom anything else about what this man said to you?
A. Hmm. Yes.
Q. What?
A. Hmm, said, "sit on my lap. And look at my underwear".
Page 27 Q. He didn't say anything else?
A. No.
(k) Page 30-31
Q. All right? I'm just going to read what your mom said you told her.
A. Hmm.
Q. All right? Ahm, "My eight year old boy, told me that there's a man in blue shirt and black pants, a big fat guy".
A. Yeah.
Q. Right? And that he told my son, to put his dow'.... to put his hands down his pants".
A. Yes.
Q. Is that what you told your mom?
A. Yes.
Q. Okay. Why didn't you tell me that though?
A. 'Cause I, 'cause I forgot that.
Q. You forgot that? Okay. So let's go back again. What did the man say to you?
A. He said, "sit on my lap, put your hands down my pants".
Q. He say anything else?
A. I dunno. I didn't think he did.
(l) Page 32-33
Q. .... And then at one point you told your mother that the man said to you, "put your hands down my pants and touch my penis".
A. Uhm-hmm.
Q. Did you tell your mom that?
A. Yes.
Q. Why did you tell your mom that?
A. Because it was true.
(m) Page 32-33
Q. Okay, so the man said what to you?
A. Put my hands down his pants.
Q. And?
A. Down his pants.
Q. And what else?
A. And that's all. And I cleaned my hands.
(b) Nicole Charles
(9) Nicole Charles testified that she was in the back of the apartment building on July 16, 2011, visiting a friend. She was on a telephone call and came out from behind some bushes when she heard yelling and screaming ("after 6:00 p.m."). She was 50 feet away from the source of the raised voices and came to within 10-15 feet of them. She saw a man telling "the kid" (D.V.) to go home and he was threatening the man (the defendant) who was seated "with his legs open". "D.V. was right in between his legs" and "D.V. was facing" the defendant. Asked if she saw their bodies touching, she replied: "I couldn't say". But she thought D.V.'s leg "was touching around the knee area". She gave evidence that when the shouting continued, the defendant "pushed D.V. away". The defendant then "stood up holding the front of his pants....like he was trying to do them up at the same time".
(10) Ms. Charles stated that she "couldn't believe what she saw", especially given the "fact that he (the defendant) was in the middle of a field with a lot of people": ("10-12 people around both picnic benches"). Under cross-examination, Ms. Charles testified that the person doing the yelling was Robert Stevenson. She agreed she told police on her video statement that there were 12-15 people at the area of the picnic tables. She had seen Mr. Abebe nightly in front of the apartment building – she had given him "change". "He picks up cigarette butts". "Basically, he's a bum". She stated she had never seen him at the back of the building. Ms. Charles said she "definitely recalled the zipper". His pants were open enough that he was holding his pants to do up his pants". She wasn't 100% sure "if he did up (the top) button". She said she was concerned about the fact of "seeing the boy in the middle of someone's legs and he stands up and his pants are undone". Ms. Charles states that when this was over she was close to the apartment building and a "lady" asked if she was Nicole and said "a little boy got molested" and that "the police wanted to speak to her".
(c) Robert Stevenson
(11) Robert Stevenson testified that he was thirty-five years of age and had lived at D[…] Road "two years ago, for six years". He stated that on the 16th day of July, 2011, he was attending a "birthday barbeque for me" consisting of persons in the building and five people with him in the vicinity of the picnic tables. He stated he knew Mr. Abebe from around the building – "he picks up cigarette butts" and he considered the defendant "weird". When asked what caught his attention, he stated "we were sitting, talking." "I saw Abebe with the kid on his lap, facing him". "We continued talking and they were laughing – at first I didn't take much notice". He testified he noticed "they were facing each other and Abebe was leaning back with his legs in a 'V' ". "The kid's legs were going the opposite way". The child was on top. Then he saw: "the kid leaned forward and opened his zipper (Abebe's) and went inside his pants". He "couldn't say if the child's hand went in far enough that he must have touched something". He stated he was behind the picnic table, about 30 feet away. Before he raised his voice, they were "talking, laughing", he was too far to hear".
(12) Mr. Stevenson gave evidence that he "got angry seeing this. I wanted to cause him some violence". He stated that Mr. Abebe "stood up and his zipper was undone but his pants did not fall down – so I assume there was a button at the top". Mr. Stevenson told them "to leave in different directions". Within an hour of this occurrence, Mr. Stevenson found and spoke to the boy's mother. Mr. Stevenson was asked: "what was the first thing you saw that was weird behaviour?" and he replied "that (D.V.) was sitting on his lap knowing the man had nothing to do with D.V.".
(d) Solomon Abebe
(13) The defendant gave evidence that he was 30 years of age and he lived with his mother at D[…] Road. He stated that before this he lived in a boarding home (Liberty residence) at Dufferin Street and King Street in Toronto and before that he was a resident of CAMH for six months. He had been diagnosed with schizophrenia in 2000-01 and is currently on medication and seeing a doctor "every 2-5 weeks". He stated he "sees his case worker Karen Gibson every day". He testified he lived at D[…] Road from February to July 16, 2011 with his mother. He said he knew Kaylee who was looking after D.V. that day. Earlier, he and Kaylee and D.V. had gone to a variety store together. He stated he was wearing jeans and sat on D.V.'s towel on the grass --- he said "I don't know why". He said his legs were out in a "V" shape and "D.V comes and jumps on my lap, kneeling" with his "legs between my(Abebe's) legs". He said D.V. was "telling me something and we were laughing". Mr. Abebe testified that "then he reached for my zipper – it was half-way down". He was asked "if that was usual?" and he replied "I had problems with the jeans because of my weight. The zipper kept going down". Mr. Abebe said he "didn't feel comfortable with it" and told D.V. "not to do that".
(14) Mr. Abebe stated that a guy (Robert Stevenson) started yelling "why are you playing with that little kid?" and said he was going to "take my head off". He told us to go separate ways". "I pulled up my zipper and walked away". "The button at the top was done up". He gave evidence that others in the past had told him the fly was undone on those jeans. Mr. Abebe was asked: "did you touch him (D.V.) in a sexual way?" and he replied: "no". He was then asked "did he touch you?"and he replied: "he touched my zipper".
(15) The defendant agreed he had never been in the back of the apartment building except "when he looked around after he first moved in". He said he was just "hanging out with friends". He stated that in the past he would hang out with Kaylee in front of the building. Kaylee was supervising D.V. at the back of the building. Mr. Abebe said he smoked then went and sat down on the grass on D.V's towel. "I didn't know why – I was just enjoying the weather". Later he said: "I think I was going to sit on the grass and he (D.V.) said sit on the towel". Then D.V. was "bouncing, just playing. I didn't think much of it". Mr. Abebe was asked: "after you gained the weight, you knew every time you sat down the fly popped open?" and he replied: "I knew when D.V. grabbed for it". He was asked: "you knew your fly was down"" and he replied "no". He started playing with my zipper and I said, don't do that". Mr. Abebe testified he didn't ask D.V. to sit on his lap. "I don't know him like that". He was asked "did you tell him to look at your underwear" and he answered "no". He was asked "did you ask him to touch your pee-pee or wee-wee", and he answered "no". He was asked "did you ask him to put his hand down your pants "and he answered "no". He was asked "not until a person yelled from the picnic bench, you didn't think anything was wrong?" and he replied: "right".
(e) Karen Gibson
(16) Karen Gibson testified that she is a registered nursing professional and case manager for Mr. Abebe for CAMH. She stated she does professional case management with psychiatric patients. She gave evidence she met the defendant in 2009 at the CAMH clinic and he later moved to the Liberty home for psychiatric patients. When it closed, she said, he had to move to D[…] Road. Ms. Gibson stated that she sees him most days at the CAMH clinic and he is treated by Dr. DeLuca for schizophrenia. Ms. Gibson said she was surprised about these criminal charges: "there was no prior indication of this type of behaviour". She had been on two camping trips with him and there was "nothing inappropriate".
(17) Ms. Gibson stated that she became aware of Mr. Abebe's weight gain at the Liberty residence where he gained about 25 kilograms (he went from 105 to 131 kgs.) because of his medication. She stated that because of his weight gain, the zipper of his jeans was always "failing". "This was ongoing". "Since 2010, they were telling him to pull his zipper up" and this was mentioned to him on a frequent basis". She said he didn't have the money to buy a larger pair of jeans.
Legal Principles
(18) One of the key issues in this case is credibility and for that reason I have utilized the formula in R. v. W.(D), [1991] 1 SCR 742 which provides as follows:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, 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.
(19) It is also important to ensure that negative stereotypes are not applied to the evidence of children. As McLachlin J. held in R. v. W.(R.) (1992), 74 C.C.C. (3d) 134 (S.C.C.) at para. 23:
- The repeal of provisions creating a legal requirement that children's evidence be corroborated does not prevent the judge or jury from treating a child's evidence with caution where such caution is merited in the circumstances of the case. But it does revoke the assumption formerly applied to all evidence of children, often unjustly, that children's evidence is always less reliable than the evidence of adults. So if a court proceeds to discount a child's evidence automatically, without regard to the circumstances of the particular case, it will have fallen into an error.
- The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. Wilson J. recognized this in R. v. B.(G.), [1990] 2 S.C.R. 30, at pp. 54-55, when, in referring to submissions regarding the court of appeal judge's treatment of the evidence of the complainant, she said that:
... it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate. 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. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children.
- As Wilson J. emphasized in B.(G.), these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child. What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.
- It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards -- to do so would be to create a new stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. 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.
Analysis
(20) The remarkable aspect of this case is that all witnesses appeared to be credible and seemed to be doing their best to tell the truth. Yet all of the witnesses, to the extent they had any opportunity to view the incident on the grass in which D.V. sat or kneeled between the defendant's outstretched legs – saw the event through the kaleidoscope of their own cognitive processes.
(21) I have endeavoured to try to understand the evidence at this trial in an honest and objective manner. I have modified my assessment of the child witness in conformity with the instruction in R. v. W(R), supra and have attempted to avoid the application of an adult's critical sensibility in all considerations relating to the evidence of D.V. I am well aware of the fact that children often view events in the past disjointedly, sometimes illogically and very often with an unintentional selectivity in their ability to recall past events. I also recognize the danger of failing to apply the proper constitutional standard of proof required in a criminal case out of sensitivity to the evidence of a child.
(22) There is no question that D.V. was doing his best to tell the truth while buffeted by his own fears of possible wrongdoing and the strong emotions felt by his mother and other adults in the community. I would have been prepared to believe D.V. on all aspects of his evidence had there been a fairly consistent memory of what occurred. However, any fair scrutiny of his evidence leaves the reader perplexed about the discrepancies in his ability to recall the incident and his readiness to embrace suggestions from adults and adopt the statement taken from his mother. I recognize that some level of inconsistency is to be expected. The problem is there is not one clear, unchanging impression of the event the reader is able to cling to and find, if not assurances of reliability, some degree of dependable recollection.
(23) Nicole Charles and Robert Stevenson were understandably very upset by what they saw. Ms. Charles observed that the defendant had D.V. between his legs at the time of the "yelling and screaming" and then he stood up abruptly and she saw him holding his pants and trying to do up his zipper – all in the vicinity of 10-15 people in broad daylight. There is no question her first impression would be that "I would think that something is wrong". Mr. Stevenson from 30 feet away says he sees D.V.'s hand open Abebe's zipper and go inside his pants. If one were to accept this perception of what he thought he saw – this behaviour would undoubtedly suggest that somehow Mr. Abebe was trying to have the boy touch his penis and was engaged in some type of sexual contact with D.V.
(24) Mr. Abebe was considered "weird" by Mr. Stevenson and a "bum" by Ms. Charles because of his penchant for picking up cigarette butts and pan-handling. Mr. Abebe testified that he was a schizophrenic who had been institutionalized in the past and who had gained a great deal of weight on medication that his treating psychiatrist had prescribed, and as a result he had put on about 60 lbs., causing his clothing, especially his pants to be too tight. He gave evidence that he had problems with the zipper on his jeans – it kept going down – because of his weight gain. He said they were sitting on the grass and D.V. came over and was "bouncing on him – just playing". "He was telling me something and we were laughing". He knew his fly had come open when D.V. grabbed for it. The defendant said it happened real quick" "I moved him (D.V.) off me when the guy started yelling". Then "I pulled up my zipper and walked away". Any fair assessment of Mr. Abebe as he gave his evidence – would be that he was an intelligent man who was developmentally delayed, socially.
(25) Karen Gibson testified that as his case worker, she had been seeing Mr. Abebe on a daily basis "he comes most days to the clinic". She confirmed that when he was at the Liberty residence he went from 105 to 131 kgs. and the weight gain caused his zipper on his pants to be "failing". She said there were notes in his clinical file about staff continually telling him to pull up his zipper since 2010. She stated that he could not afford to buy a pair of pants that fit him.
Conclusion
I have considered all of the evidence both circumstantial and direct as well as Counsel's very thoughtful submissions and I have concluded that the Crown has not proven the mens rea of either offence – the sexual purpose – beyond a reasonable doubt for the following reasons:
(1) First, I believe the evidence of Solomon Abebe and his evidence, corroborated by the evidence of Karen Gibson raises a reasonable doubt. I am mindful of his failure to explain why he sat on D.V.'s towel and why he could not recall what he and D.V. were talking and laughing about on the grass just before D.V. grabbed for his zipper. In spite of serious concerns, I am not satisfied these failures to explain were anything more than a product of his underdeveloped socialization. These concerns were not likely something he thought much about. On the basis of Karen Gibson's evidence, I am prepared to accept that his zipper, as it had in the past, became half open and D.V. playfully grabbed for it before Mr. Abebe could stop him. It would be remarkable that a seemingly intelligent man like Mr. Abebe, if he had such a propensity, would attempt some type of sexual interference with a child in the midst of a group of people ranging in size from 6 to 15 people.
(2) While Nicole Charles saw the boy between Mr. Abebe's legs and watched him stand up abruptly and try to do up his zipper with both hands, this seemingly disturbing scenario is also consistent with an innocent explanation – that a zipper malfunction set some events in motion that caused her to have the mistaken impression that Mr. Abebe was engaged in something of a sexual nature.
(3) Robert Stevenson had a somewhat prejudicial impression of Mr. Abebe as a "bum" and a "weird" person before July 16, 2011. Mr. Stevenson was 30 feet away on the far side of the picnic table and his point of view was downward towards D.V. sitting close to Mr. Abebe on the grass. If the child were to suddenly try to grab the zipper of a person sitting down on the grass because of the angle and the zipper not likely being visible from his vantage point, it being halfway down, it could well appear that the boy had plunged his hand into Mr. Abebe's pants while merely grabbing for the zipper. We are all familiar with the phenomena that at times, what we see is coloured by what we expect to see, what we are told we see, what we want to see, what we are asked to see. Mr. Stevenson made a snap judgment and was enraged by what he saw. There is too great a possibility here that he misperceived what he thought he saw – the boy's hand going into the defendant's pants – and unintentionally set in motion his view that D.V. had been molested which later may have coloured statements from D.V. and his mother.
(4) I have treated D.V.'s statement with appropriate scrutiny and age-related understanding. In spite of a recognition that an 8 year old's statements will inevitably be flawed by adult standards, yet nonetheless represent a compelling version of the truth, I have concluded that the statement is not a sufficiently reliable base upon which to ground an application of the criminal standard of proof. There is too great a possibility that the first assertion "he told me to sit on his lap and touch his pee-pee", which he was not able to repeat, was the product of a lengthy and intense discussion with his mother after which he repeated what he thought she wanted to hear rather than what he was able to recall. Once again, I am certain that there was never any intention to tamper with his memory of events in any way and that D.V. tried to tell the truth as best he could.
Final Conclusion
In conclusion, I find that the prosecution in this case has not proven the mens rea of either offence – the intent or sexual purpose – beyond a reasonable doubt and the defendant, Solomon Abebe, stands acquitted of both charges.
P. HARRIS J.
March 15, 2012