WARNING

The court hearing this matter directs that the following notice 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Ontario Court of Justice

Date: 2014-04-08

Court File No.: ORILLIA COURT FILE 12-1403

Between:

Her Majesty the Queen

— AND —

Mervyn Moggy

Before: Justice C.M. Harpur

Heard on: March 10, 2014

Reasons for Judgment released on: April 8, 2014

Counsel:

• S. Renaud — counsel for the Crown
• M. Eisen — counsel for the defendant

HARPUR J.:

Overview

[1] Mr. Moggy is charged with the sexual touching and sexual assault of A.G. ("A.G.") between September 1, 2004 and December 31, 2009. Ultimately, the Crown elected to proceed summarily and trial proceeded in this court on March 10, 2014. A.G. was nine years old when she testified and Mr. Moggy was seventy-three.

[2] At trial, Ms. Renaud for the Crown called A.G. and her mother A.L.. Mr. Eisen for Mr. Moggy called his client in defence.

[3] It is common ground between the Crown and the defence that A.G. was frequently at the home of Mr. Moggy and his wife Karen for babysitting purposes several days each week prior to A.G. entering junior kindergarten at the age of four. The period of this babysitting is approximately one and one-half years and would be encompassed by the time frame set out in the information. The babysitting was provided primarily by Mrs. Moggy but Mr. Moggy did interact from time to time with A.G.. Periodically, he was alone with her.

[4] A.G. testified that, in the course of these days of babysitting, she was touched under her clothing on her vagina by Mr. Moggy, once on the couch in the basement of the Moggy home while they were watching television and once on another day when she was in a garage or tool shed adjacent to the Moggy home. A.G. said that she was alone with Mr. Moggy when he touched her in the tool shed. She said that Mr. Moggy was sitting between her and Mr. Moggy's granddaughter, her friend G., when she was touched on the basement couch. She said that when Mr. Moggy touched her on the couch she rose and stayed away from him. She said she was held by Mr. Moggy but was able to squirm away from him when he touched her in the shed.

[5] Mr. Moggy acknowledged in his testimony the likelihood of his having sat on a least one occasion with A.G. and his granddaughter on the basement couch watching television and the possibility of his having attended with A.G. at or in the shed to extract a tricycle from it for her to play with. Mr. Moggy denied ever having touched A.G. on her vagina or anywhere else inappropriately and said that her allegation had been devastating for him.

[6] These are extremely troubling cases. The potential for harm of an incorrect finding of guilt is always vast and is particularly so in allegations involving sexual interference with children, bearing in mind the opprobrium attaching to such a conviction as well as the requirement of a penalty of incarceration. Conversely, an incorrect acquittal leaves unaddressed a wrong of great moral turpitude. It also gives rise to the prospect of lasting harm to the victim without the comfort, such as it is, of vindication. The stakes are high and the contest is often, as it is here, a narrow one which pits the credibility of a complainant against the credibility of a defendant.

[7] The standard which the law of evidence requires be applied in all criminal cases, whether involving such conflicts of testimonies or not, is "proof beyond a reasonable doubt" by the Crown of the essential elements of the alleged offence. In comparison with everyday human existence, this standard is unusually strict as a vehicle for truth-seeking. We routinely reach firm conclusions about the truth of situations in everyday life without having arrived at a point approaching absolute certainty. However, a criminal trial is not everyday life and the implications of a criminal conviction are indeed grave. As a result, as a society we accept that the Crown's onerous burden of proof is appropriate in order to deal fairly with those accused of violating our most important rules of conduct.

[8] In keeping with this burden, in 1991 the Supreme Court of Canada set out a method of analysis for judges to follow in cases where the defendant testifies and denies the allegations of the complainant. The method is as follows: (i) if the judge believes the evidence of the defendant, the judge must acquit; (ii) if the judge does not believe the evidence of the defendant but is left in doubt by that evidence, the judge must acquit; and (iii) if the judge does not believe and is not left in doubt by the evidence of the defendant, the judge must, nonetheless, go on to consider whether, on the basis of the evidence which the judge does accept, the judge is convinced beyond a reasonable doubt of guilt: R. v. W.D., [1991] 1 S.C.R. 742.

[9] Here, I have applied this analysis and concluded that Mr. Moggy is entitled to an acquittal. Although, in the face of several strong features of A.G.'s evidence, I do not wholly accept Mr. Moggy's denial and do not wholly reject A.G.'s testimony concerning the incidents she described, the totality of the evidence certainly leaves me in doubt.

A.G.'s Evidence

[10] A.G. struck me as a very intelligent child. She answered the questions she was asked directly and distinctly. When asked to describe the backyard of the Moggy home she immediately and, helpfully for her listeners, offered that it was "one-half the size of this courtroom". Her answers to the questions asked of her, both in chief and in cross-examination, were given immediately on completion of the question, giving no chance for reflection about the manner in which the answer was to be given.

[11] There was no suggestion in A.G.'s evidence that she was embellishing her description of Mr. Moggy's assaultive conduct. She stated that she was touched by Mr. Moggy only on the two occasions she described, although she indicated that she was alone with him at other times in the course of her visits to the Moggy home.

[12] A.G. did not retreat from her evidence about Mr. Moggy's assaults in cross-examination. She emphatically disagreed with Mr. Eisen's proposition that she had fabricated the assaults by Mr. Moggy in order to be a centre of attention.

[13] These aspects of A.G.'s evidence encouraged reliance.

[14] However, there were also several features of A.G.'s evidence which detracted from her reliability as a witness.

[15] A.G. was either two or three years old at the time of these alleged assaults. With respect to the assault on the couch, she said that, after Mr. Moggy assaulted her, she got up and "kept at a distance" from him. This is an incident which A.G. did not disclose to her parents until she was eight years old, some five or six years after it is alleged to have occurred. I find it discordant with the inherent probabilities of the circumstances that, however vivid might be a toddler's memory of inappropriate touching by an adult even several years later, that same clarity of memory with respect to minutiae following the touching would continue to exist. I am doubtful that A.G. could remember, five or six years after the incident, a conscious separating of herself from Mr. Moggy following the touching, as opposed to simply knowing that he did not touch her any more that day. I have similar reservations about A.G.'s evidence that, in squirming away from Mr. Moggy following the touching in the shed, she "grunted a bit". This too is a questionable feat of memory five or six years after the event.

[16] Secondly, damaging to the strength of A.G.'s allegations against Mr. Moggy is her admission in cross-examination that she previously fabricated a story (i) that her father had been in a serious automobile accident; (ii) that she has a vivid imagination from which that story proceeded; and (iii) that she told the story in order to gain attention. A.G.'s willingness to tell that story, apparently without thought to the consternation its telling might cause, raises a question about her susceptibility to a child's temptation to stray from the truth.

[17] Thirdly, there were discrepancies between A.G.'s evidence at trial, her evidence on the preliminary inquiry (which took place prior to Mr. Moggy's re-election for trial in this court), her complaints to her parents and her initial statement to the police. There were also discrepancies between A.G.'s recollection of past events and the recollection of her mother, A.L.. A.L. testified in a straightforward and even-handed manner. She conceded to Mr. Eisen, for example, that A.G. seemed to A.L. to like attending at the Moggy home both before and after the alleged incidents, that nothing in A.G.'s behaviour during the babysitting gave A.L. cause for concern and that, throughout, A.G. seemed to enjoy playing and even being tickled by Mr. Moggy. This neutrality was a badge of honesty and I accept the accuracy of what A.L. said.

[18] Some of these discrepancies are relatively insignificant in themselves but, in aggregate, they cast doubt. They were as follows:

(i) Mr. Eisen established that, neither in her statement to the police nor at the preliminary inquiry, had A.G. disclosed that G. was outside in the yard of the Moggy home when she was touched by Mr. Moggy in the shed. That was, however, her evidence at trial;

(ii) A.G. said at trial that her revelation to her mother about being touched by Mr. Moggy was triggered by her overhearing A.L. speaking on the phone to someone other than her (A.G.'s) father about another similar allegation against Mr. Moggy. A.L., however, testified that the conversation which A.G. overheard and which led to her revelation was a conversation A.L. had with A.G.'s father;

(iii) A.G. testified that she received advice at her school from kindergarten to grade three about "good touching" and "bad touching". She said she could not recall receiving such advice from her mother. A.L., on the other hand, testified that she and her husband had "street-proofed A.G. early", and that she had spoken to her as a child at length about her entitlement to personal privacy;

(iv) A.G. admitted at trial having testified at the preliminary that she had not advised her parents about Mr. Moggy's touching for several years "because I guess it never came up". At trial, A.G. said that she delayed telling her parents because "I don't like to talk about it". Although these two answers can, as Ms. Renaud submitted, be reconciled, they do convey different ideas;

(v) At trial, A.G. testified that Mr. Moggy and she were both sitting on the couch when that touching incident occurred. However, A.G. also admitted that, in her statement to the police, she had told them that she was lying on the couch with Mr. Moggy at her feet prior to being touched by him;

(vi) A.G. acknowledged that the description she provided to her parents of being touched by Mr. Moggy in the shed did not involve a description of being held by him and that her first disclosure of this restraint by Mr. Moggy was in her statement to the police;

(vii) At trial, concerning the incident in the shed, A.G. said Mr. Moggy was standing closer to the open shed doors than she was and that, accordingly, the view of her of a passerby on the sidewalk would have been obscured. A.G. acknowledged that she had never previously indicated to her parents, the police or in evidence that her body was obscured when she was touched by Mr. Moggy; and

(viii) At trial, A.G. said that Mr. Moggy did not speak in the course of either of the touchings. However, A.L. testified that A.G.'s description to her of the shed incident included an indication that Mr. Moggy had said to A.G. at the time that "it's okay".

Mr. Moggy's Evidence

[19] Mr. Moggy's evidence in chief was very brief. Mr. Eisen submits, with reason, that a denial that something occurred is naturally limited in extent.

[20] Mr. Moggy had taken, and brought with him to court, a photograph (Exhibit 3) intended to demonstrate the visibility of the interior of the shed to a passerby on the sidewalk. In chief, Mr. Moggy said that he had taken the photograph "from the end of the driveway". In cross-examination, Mr. Moggy admitted to Ms. Renaud that, in fact, the photograph was taken some two and one-half car lengths closer to the doors to the shed than is the sidewalk. Although Ms. Renaud submitted that the "end of the driveway" evidence was given by Mr. Moggy to mislead the court to his advantage, I did not have the sense that Mr. Moggy was attempting to be precise in chief about the point from which he had taken his photograph. In cross, he readily acknowledged that the photo was not taken from as far away as the sidewalk; there was none of the sort of quibbling one might expect of a self-serving witness.

[21] Apart from this matter of the photograph, Mr. Moggy's flat denials were not shaken in cross-examination. Ultimately, the only substantial obstacle to acceptance of what Mr. Moggy said at trial was A.G.'s evidence to the contrary. A.G.'s evidence was given with clarity and conviction but it is subject to the frailties I have described.

Conclusion

[22] Accordingly, I find that the Crown has not proven either allegation set out in the information beyond a reasonable doubt. The charges are dismissed.

Released: April 8, 2014

Signed: "Justice C.M. Harpur"

Justice C.M. Harpur, O.C.J.