WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order Restricting Publication — Sexual Offences

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory Order on Application. In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Central East - Newmarket 4911-998-10-03122-00

Date: 2012-05-29

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

R.M.

Before: Justice Richard Blouin

Heard on: May 5 and 6, 2011 and March 5, 2012

Oral Reasons for Judgment given on: April 12, 2012

Written Reasons for Judgment released on: May 29, 2012

Counsel:

• T. Schvalb, for the Crown
• C. Clark, for the defendant R.M.

BLOUIN J.:

Introduction

[1] The defendant stands charged that he committed the offences of Sexual Assault (s. 271(1)) and Sexual Touching – two counts (s. 151) on his pre-pubescent granddaughter between 2006 and 2009.

[2] The Crown called the complainant and her mother (the defendant's daughter). The defence called the complainant's aunt and grandmother (wife of the defendant). The defendant did not testify.

Crown Evidence

Complainant's Evidence – 715.1 Videotape

[3] C.H. provided a videotaped statement to police on March 4, 2010, which was admitted pursuant to s. 715.1 of the Criminal Code on consent. The DVD of the interview was made Exhibit 1(a). The transcript was entered as Exhibit 1(b).

[4] C.H. told Constable Briar that she had been hospitalized recently for about a week after having a "major emotional breakdown". Among the issues that caused her distress was her view that she was sexually abused by her grandfather. She related various incidents of abuse.

[5] In 2006, when she was around 10 years of age (she was actually around 12 since her birthday is […], 1994), her grandfather ran his hand up her pyjama top and touched her breasts and her thigh. In the room at the time, in a cottage the family rented on S[…], were her sister, her aunt and her grandmother. All five were watching a movie one night. She did not say anything, even though it made her extremely uncomfortable, because she thought it would be a one-time occurrence.

[6] The next incident occurred at the complainant's house in K[…]. C.H. remembers it was her 10th birthday. She was in the basement when her grandfather grabbed her and kissed her. She remembered the kiss being "very dirty" and lasting for maybe a minute, where his tongue went in her mouth, before he whispered something in her ear. She then remembered later in the interview that her grandfather was "feeling her up".

[7] She also remembered an occasion again at the cottage approximately one year later, when she was still 10 years old, where her grandfather used his finger to "play around" down her pants. She remembers it being 2008 because her grandmother was ill and sleeping in the cottage and, when her cousins and her sister went to the beach, her grandfather came into her room while she was watching a movie and shut the door. His hand did not go beneath her underwear.

[8] She also related a time in August 2009, while she was staying with her grandparents for a week, when her grandfather attempted to touch her but was prevented by the complainant staying close to her grandmother.

[9] The last time C.H. saw her grandfather was at Thanksgiving 2009, when her grandfather gave her $50 and some cigarettes, and then tried to put his hands down her pants. This was at the complainant's residence in K[…] and was not the only time C.H.'s grandfather had given her cigarettes. He told her not to tell anyone.

[10] When Constable Briar reviewed the specific allegations, C.H. mentioned that her grandfather had also "used his fingers up there" (pointing to her crotch) on her grandmother's 50th birthday, which was […], 2009. She said her grandfather told her that "she owed him" when they were alone in the basement of the complainant's home. With one hand he touched her crotch with his fingers. With his other hand he touched her breasts under her bra.

[11] C.H. disclosed the abuse to her mother in late 2009 before she had the meltdown spoken of earlier in paragraph 2.

[12] Before that a friend at school had noticed that C.H. was upset. C.H. told her she had been sexually abused. At first, she told her friend that the abuser was her uncle and that he had been jailed, but was now out and that worried her. She maintained that story until a few days before the statement when she told her friend she had lied, and the abuser was actually her grandfather.

Complainant's Evidence – In-chief

[13] Regarding the cottage weekend in 2006, she expanded on her videotaped statement to include the defendant touching her "ass", and that his touching of her breasts was a fondling of her nipples.

[14] She also described the third incident at the cottage in 2007, involved her grandfather putting his fingers inside her vagina. This differed from her video statement where he did not go beneath her underwear.

Complainant's Evidence – Cross-examination

[15] The complainant expanded on the 2006 cottage incident. The fondling of her breasts and touching of her thigh lasted for about 30 minutes, and was in a small room with light coming from the TV and the kitchen. The complainant's grandmother and her aunt were at two different locations with two angles of sight a few feet away.

[16] She agreed the second incident was in 2006 at her 12th birthday party.

[17] In August of 2009, the complainant stayed at her grandparents' house. She was not forced to go and was not concerned about visiting for a week. She did not remember being disappointed that an auto accident cut the trip short so as to send her home to her mom. She could not remember wanting to live with her grandparents at that time.

[18] She also did not remember telling her mother that she received scratches on her chest that were caused by the family dogs.

Evidence of Complainant's Mother – S.H.

[19] S.H. testified that her daughter disclosed the abuse shortly after Thanksgiving in 2009. C.H. told her the scratches that were previously on her breasts had not been done by the dog, as she had indicated earlier, but her grandfather. C.H. also told her mother that the defendant gave her a bag of cigarettes. S.H. confronted her father about the allegations. He first denied, then admitted, giving her cigarettes. He responded to the allegation of sexual touching by declaring, "Absolutely not."

[20] S.H. did not call the police at that time, but did so months later when C.H. attempted suicide, and only after C.H. disclosed to a worker at the hospital. Ms. H. confirmed that C.H. wanted to spend time with her grandparents, even after the allegations had occurred.

Defence Evidence

[21] P.E. testified that she was in the room during the first alleged incident at the cottage. She thought it "impossible" that such allegations could have occurred while she was present in the room. Ms. E. did confront her father with the allegations, which he denied.

[22] L.M. also confirmed that she was present in the room during the alleged incident at the cottage. She saw nothing that concerned her. Mrs. M. related a time after some of the alleged incidents where C.H. was having trouble at home and wanted to live with her grandparents. When the allegations became known, Mrs. M. confronted her husband. The defendant denied doing anything wrong, except providing cigarettes to his granddaughter.

Analysis

[23] I found the complainant to be reliable and believable. There were inconsistencies and incongruities, but her evidence held up during cross-examination. I concluded her account of abuse was likely true. While her memory of the dates of the abuse were often wildly inaccurate, she at least was able to recall milestones, and specific locations, which she could attach to the allegations. Although concerning, I did not feel the date issue was an important one.

[24] I can also properly consider the absence of a motive to fabricate. Here there was no evidence of such a motive. C.H. loved both of her grandparents.

[25] In addition, in my view, the most damaging piece of evidence that corroborated the complainant's story was the provision of cigarettes to her by the defendant. The defendant confirmed he did this when confronted by the complainant's mother, and his wife. That leads to a powerful inference that the only reason a grandfather would do something that irresponsible and harmful to his young granddaughter is that it was a desperate attempt to buy her silence. Of course, in the same confrontation regarding the cigarettes, the complainant's mother asked her father about the abuse allegations. The defendant responded, "Absolutely not."

[26] On the other hand, there were significant examples of improbable situations, or responses to situations, that collectively provide doubt as to the reliability of the complainant's allegations:

• It is improbable that the defendant could have fondled the complainant's nipples for 30 minutes in a lit room, in a small cottage, with his wife and daughter a few feet away, without both adults noticing. Ms. E. and Mrs. M. testified they observed nothing.

• The complainant disclosed the abuse allegations to a worker at the hospital, and then to police, months after the last complaint, when she was hospitalized for what she referred to as a "major emotional meltdown". Disclosure had been made prior to the hospitalization to her mother, and a friend of the complainant. C.H. told her friend that it was her uncle that committed the sexual abuse.

• It was improbable that after a number of abusive encounters had occurred, with her grandfather, that the complainant would willingly wish to spend a week at her grandparents' house in August 2009.

• S.H. testified that C.H. told her that a scratch on her breasts was done by the family dog. Later, when she disclosed the alleged abuse, she said she lied about the dog and the scratches were caused by her grandfather. Again, not impossible, but I find it unlikely that the touching allegation would result in scratches on her breasts. There was no roughness spoken of in the alleged behaviour. It seemed to me to be an attempt to confirm her allegations with physical evidence.

Conclusion

[27] The standard of proof on the prosecution in any criminal case is a high one - beyond a reasonable doubt. After much consideration, weighing evidence that tended to show guilt, with evidence that tended to show otherwise, I conclude that while C.H.'s allegations are probably true, that conclusion falls short of what is required to find guilt in a criminal case.

[28] Mr. M. will be found not guilty on all three counts.

Released: May 29, 2012

Signed: Justice Richard Blouin