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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: December 11, 2014
Court File No.: Halton 789/13
Between:
Her Majesty the Queen
— AND —
L.M.
Before: Justice L.M. Baldwin
Heard on: March 17, 2014; July 9, 2014; July 10, 2014 and July 11, 2014
Reasons for Judgment released on: December 11, 2014
Counsel:
- M. Mackenzie, counsel for the Crown
- M. Hamalengwa, counsel for the accused L.M.
BALDWIN J.:
Charges
[1] L.M. pled not guilty to 3 sexual offence charges all alleged to have occurred between the 1st of August, 2010, and the 31st of January, 2011, in the City of Burlington as follows:
(1) he did commit a sexual assault on S.T., contrary to s. 271 of the Criminal Code;
(2) he did for a sexual purpose touch S.T., a person under the age of 16 years, directly with a part of his body, to wit, his hands, contrary to s. 151 of the Criminal Code;
(3) he did for a sexual purpose counsel S.T., a person under the age of 16 years, to touch directly with a part of her body, to wit, her hands to touch his penis, contrary to s. 151 of the Criminal Code.
[2] Jurisdiction, date and identity were admitted at the outset of trial.
[3] The complainant testified by way of CCTV and an Application was granted pursuant to s. 715.1 of the Criminal Code.
Background
[4] S.T. is the daughter of L.M.'s girlfriend at the time.
[5] S.T.'s mother is Y.M. and she testified at this trial.
[6] Y.M. has a twin sister named Y. who lived in Mississauga.
[7] Y.M.'s children: S.T. – born […], 1997 in Zimbabwe - father lives in Zimbabwe, S.T. came to Canada to live with her mother when she was 9 years old; S. – 12 years old at the time of trial – father is P.J. aka L.S.; C. – 7 years old at the time of trial – father is P.J. aka L.S.; S. – born […], 2010, in Canada – father is L.M., stayed with Y.M. and the children at the time of the allegations. He also stayed in Mississauga and the Jane and Finch area of Toronto at the time.
[8] In April 2011, L.M. moved to Yellowknife.
[9] S.T. was apprehended by the CAS from her mother's custody on March 28, 2012.
[10] Y.M. was charged and convicted of physically assaulting S.T.
[11] S.T. is still in foster care with no access to her mother or L.M.
[12] S., C., and S. were also apprehended. By the time of trial, they had been returned to their mother's care.
[13] L.M. has worked extensively as a youth counsellor, in Zimbabwe, the U.S., and Canada.
[14] L.M. is currently on bail and is employed as a taxi driver.
Summary of the Testimony of S.T.
[15] S.T. was 16 years old when she testified at this trial. She was in Grade 11 and doing very well academically at school. Her school marks are generally in the high 80's and low 90's. She belongs to a creative writing club.
[16] She testified that she is going to get her undergrad in engineering science, majoring in biomedical engineering at U of T and possibly medical school after that.
[17] S.T. was born […], 1997, in Zimbabwe. She lived with her father and her paternal grandmother in Zimbabwe.
[18] S.T. was nine years old when she came to Canada to live with her mother.
[19] When she first came to Canada she lived with her mother, her mother's common-law partner and her two half-brothers in Etobicoke. The oldest brother, S., was 5 years younger than S.T. The second brother, C., is four years younger than him. The father of these brothers is 'L.' the former common-law partner of S.T.'s mother.
[20] Not long after S.T. arrived in Canada, her mother and 'L.' broke up.
[21] L.M. was a friend of her mother's and he helped them move from the place in Etobicoke into a shelter in 2009. Her mother told S.T. that L.M. was someone she knew from Zimbabwe.
[22] L.M. and S.T.'s mother become intimately involved and S.T.'s mother became pregnant with S. S. has the same birthday as S.T. and he is exactly 13 years younger than she is. S. was born […], 2010.
[23] L.M. lived in an apartment across the street from S.T.'s Aunt in the Dixie area of Mississauga at the time. Her Aunt, (named S.) is her mother's twin sister.
[24] L.M. had 2 children who would stay with him on weekends.
[25] After they moved into the shelter, S.T.'s mom had a car accident. L.M. would drive his mother around and help out. Sometimes they would all stay over at his apartment.
[26] S.T., her mother and 2 brothers stayed in the shelter from November of 2009 until July or August of 2010.
[27] They all moved out of the shelter and into a townhouse in Burlington.
[28] L.M. would come over occasionally and sometimes sleep over.
[29] Close to S.'s birth in […], L.M. moved into the townhouse.
[30] S. was born prematurely and had to stay in the NICU (Neonatal Intensive Care Unit). S.T. remembers that S. was home by Christmas time.
[31] L.M. lived with them in the townhouse until April of 2011. He left to work in Yellowknife.
[32] In March of 2012, S.T. was apprehended by the CAS because her mother 'severely beat' her and she ran away.
[33] S.T. had reported prior beatings to the police but no charges were laid. The police did not believe her.
[34] S.T.'s mother was charged and found guilty of the assault. S.T. lives in foster care and has not seen her mother since she was apprehended. She does not want any contact with her mother.
[35] S., C. and S. were apprehended at the same time. S. and C. have since been returned to their mother's care. S. had been in the same foster home as S.T.
[36] In 2009, S.T. was diagnosed with an eye disorder called 'Keratoconus'. This is a condition in which the cornea of the eye is distorted resulting in light not being properly reflected and images being distorted. S.T. had 2 corneal transplants. Her vision is okay now.
[37] When L.M. moved into the Burlington townhouse S.T. described their relationship as being "awkward". (p. 31)
[38] She did not know what his relationship with her mother was and she was "not fond of his presence". (p. 31)
[39] At times, S.T. would be alone in the townhouse with L.M.
[40] Her mother would be out shopping, across the border, or at the NICU.
[41] Before S. was born, S.T.'s mother worked as a TD insurance clerk in Toronto. She had regular nine to five hours on weekdays.
[42] The Crown asked S.T. how this matter ended up coming to the attention of the police.
A. Yeah, well, I had sort of had a deja-vu incident in the doctor's office that reminded me, which happened to be around the same time the incident ended. And I told my foster mom and she reported to the CAS.
Q. Okay, so something happened at the doctor's office that you call the deja-vu incident?
A. Yeah.
Q. Okay, and I'm just going to ask you briefly what it was that happened at the doctor's office?
A. The doctor gave me a hug and it just reminded me of the incident and I felt uncomfortable, so it triggered memories. (pp. 43, 44)
[43] S.T. testified that her foster mother was the first person she disclosed to.
[44] Her foster mother called the CAS and told them. The CAS told the police. Within days, Officer Prescod, with HRPS, interviewed her on video-tape. The interview was held on March 13th, 2013.
[45] S.T. testified that she did not disclose the sexual abuse allegations to her mother because her mother was "already mad at me for supposedly ruining her relationship, so I figured it was not the right time…And she was no help at all. She was an abuser, too, so I just figured it would be useless." (p. 46)
[46] The video-taped statement was played for the Court. S.T. testified that its contents were true.
[47] S.T. testified that before she disclosed to her foster mother she had been thinking about how and when to make the disclosure. She did not really think about who she was going to disclose to. (p. 51)
[48] S.T. testified that sexual contact with L.M. happened in the Burlington townhouse "possibly 6 to 8 times." (p. 53)
[49] One incident involved him lifting up her shirt and touching her breasts with both of his hands.
[50] One incident happened in her mother's bedroom when she was making the bed. She was wearing a tennis dress.
[51] One incident happened in her brother's bedroom.
[52] One incident happened in the basement.
[53] Other incidents were split between her bedroom and her mother's bedroom. The Crown asked about those other incidents.
Q. Okay, so can you tell us generally what other kind – other than the specific incidents that you talked about, what other kinds of incidents happened either in your room or your mom's room?
A. Basically, it's either my mother's room or my room. It was basically just general touching of the outer genitalia, which consists of the labia majora and minora, outside of the vulva, not in the vagina. So that was mostly the incident that I remember happening, was usually him just touching the genitalia with his hands…sort of like masturbation almost.
[54] S.T. testified that she was not really sure about the breast incident. She knows that one time he did touch her breasts. (p. 55)
[55] When asked where she learned the proper anatomical terms for things referred to in her evidence, S.T. stated it was through kids at school, sexual jokes she heard at school, sexual education class at school and some books.
Summary of the March 13, 2013, Statement to Police Officer Prescod
[56] The transcribed statement is 118 pages long. The interview started at 10:17 and ended at 12:02.
[57] This statement was not given under oath or affirmation. S.T. was not cautioned with respect to any consequences she could face for not telling the truth.
[58] S.T. was 15 years of age when she gave the statement.
[59] The Officer started the interview by saying he had heard that she was very smart, did well in school, and was a poet.
[60] S.T. stated that she thinks it started when she was around 12-ish – October-ish when she was in Grade 8.
[61] It happened in the Burlington townhouse.
[62] L.M. was her mother's boyfriend. They had just started dating and then S.T. learned that in a few months her mother was going to have his baby.
[63] Her mother would leave her alone with L.M. and it was awkward "cause, you know, he's a random dude in the house". (p. 6)
[64] Her mother went shopping across the border and left her and her brothers alone in the house with L.M.
[65] L.M. had influence over what her mother could do.
[66] If he disliked something, he would get her mother to beat her up.
[67] S.T. spoke of a 'bribe thing' that was sexually deprived on her mother's side.
[68] L.M. would start hugging her and she was very uncomfortable.
[69] If she did not do what he wanted, her mother would beat her because of his influence.
[70] He would come into her bedroom and "basically start the touching and, you know, like that was kind of uncomfortable, but I really kind of didn't have a choice 'cause it was a bribe." (p. 6)
[71] It happened mostly in the afternoons.
[72] Her brothers would be outside playing with their friends and L.M. would touch her in all the inappropriate areas.
[73] He tried to do penetration but she would not let him because that was painful but "basically if he got what he wanted the day was okay. If he didn't well I was in trouble…" (p. 6)
[74] He probably did it more than 5 times. Mainly after school when her mother was at work. Sometimes he would get her to masturbate him but that was rare. It was mostly the touching.
[75] Her mother met L.M. when he helped them all move into a shelter in November of 2009. By February her mother was pregnant. They did not know each other that long.
[76] After her mother moved into the Burlington townhouse in August or September 2010, L.M. began staying for periods of time at the townhouse. He had his own apartment.
[77] In October he permanently moved into the townhouse.
[78] She would tell her mother things about L.M. and she would tell her mother things about him. It was a "bribe" thing.
[79] L.M. told her that he did not plan to stay with her mother. His plan was to screw her mother over, work for a bit and move on. He was not going to stay for a kid. (pp. 10, 11)
[80] S.T. told her mother about his plans but her mother would not listen and it ended up happening anyway.
[81] "…the most awkward thing was the time my mother went shopping across the border in Buffalo and like left me totally alone with him. But nothing really happened then, it was just that was the first awkward thing." (p. 11)
[82] Then he started to hug her and he would get "boners".
[83] The he tried to go to the next level. She was 12 and "kind of resistant". She did it so she would not get beaten up by her mother.
[84] Her mother would beat her up with a wooden spoon or a belt. Her mother threw objects at her. Her mother would sit on her chest and choke her with a scarf.
[85] Twice the police were called to the house because of what her mother was doing to her. She tried to tell the police that she was being beaten. They did not believe her. "…so I was like, you know what, screw the cops. I ain't talking to them, they're useless. So I kind of have this hate for Halton police." (p. 12)
[86] Officer Prescod told S.T. that he appreciated the honesty.
[87] S.T. stated that she felt trapped in the house between her mother and L.M..
[88] "It was basically getting the best seat in hell". (p. 13)
[89] She would tell L.M. all the stuff her mother was doing and if he wanted, she would fulfill his sexual fantasies so her mother would stop beating her. (p. 13)
[90] Officer Prescod told S.T. that she has been quite forthright thus far and he really appreciates that.
[91] Officer Prescod asked S.T. to tell him exactly what happened.
[92] "Basically there's this one day – one afternoon where he wanted – yeah, like masturbation, just basically the stroking up and down of the penis. He wanted that from me. And he liked foreplay with me, basically, touching of the genitalia. But like if he tried to pen – like he kind of tried to penetrate me one day and I just kind of pushed him away. Like he tried to force in and I just kind of pushed him away. I said that's painful. Don't go there because I don't wanna get pregnant and stuff like that…. basically foreplay was his favourite or caressing of the breasts or, you know, sucking the breasts. That was stuff that he liked." (p. 14)
[93] S.T. stated that it "basically" started in her mother's bedroom when she was maybe doing her bed or something. L.M. was talking to her about sexual topics and how he works with children and how he understands teenagers.
[94] "And then like he just starts like, you know, this whole weird touchy-touchy type thing. And like I'm stranded in the middle of an awkward position because like there is no one in my house so I'm like should I run? Should I stay? I kind of forced myself to just kind of stay through that whole part…(he was) touching of the genitalia. Stroking with the fingers, basically, and touching of the breasts…(he) basically got in my underwear." (pp. 16, 17, 18)
[95] S.T. stated that the police had already failed her twice so she had nobody to tell. (p. 19)
[96] She was wearing a grey tennis dress at the time. L.M. touched her around the labia majora and the vulva under her underwear.
[97] Officer Prescod apologized to S.T. if talking about this makes her feel uncomfortable.
[98] S.T. stated that the first time it happened it lasted for "basically" a good five minutes.
[99] The other time was in her bedroom. "…we ended up in my room and like-yeah, he kind of like masturbates to the point where he, ejaculated some sperm and there was sperm on my sheets and I was like oh, my goodness. And I'm like, don't get that in me, 'cause I don't wanna get pregnant. And he's basically, just still touching my genitalia, right? And he's – uh, shoots out sperm and then like I had to change my sheets. And I don't know how long that lasted for…it was, basically, your mother's gone, your brothers (are) not here. Let's do it." (pp. 25, 35, 45, 46, 47, 48)
[100] S.T. stated that she resisted a couple of times because she did not want to do it.
[101] It happened after her brother was born in […] of 2010.
[102] There was another time in her brother's room. He "basically touched the genitalia again…sucking of the breasts… basically trying to get him (me) to kiss him, but that was the one thing I wouldn't do. I wouldn't kiss him….he got me to touch his penis…" (pp. 27, 52).
[103] S.T. said she was not sure when the incident in her brother's room happened.
[104] Officer Prescod told her "that's excellent and perfect" that she said she didn't know the answer.
[105] S.T. talked about how L.M. "basically" commented on how nice her breasts were and how her mother is jealous because she was so beautiful. (p. 28)
[106] L.M. touched and sucked her breasts upstairs in the townhouse. She thinks it happened in her mother's bedroom, but she is not sure. He did something to her in her brother's bedroom once and in her bedroom several times. Then she said the activity was divided between her bedroom and her mother's bedroom. (p. 29)
[107] S.T. stated that every time she tried to go upstairs and be alone, L.M. would follow her. (p. 30)
[108] "Basically" he went from talking to going under her shirt. She remembers for sure that he gave her compliments. She does not know how long it lasted. To be safe, she is sticking with five minutes.
[109] Another incident happened in the basement when she had a yeast infection. "He basically touched my vaginal area again." (p. 36)
[110] L.M. somehow heard she had a yeast infection and started talking to her about it. She was on the computer at the time. L.M. told her he had talked to a doctor about her problem and he had a cream that she could use.
[111] S.T. stated that she should have seen this as a "red-flag". She did not know him that well and he was talking about her vaginal problems with his doctor. This was another "gateway" for him to touch her. (pp. 38, 39)
[112] He hugged her as usual and "basically gets to touch it. I think the cream, you know, started touching…Q. He's applying the medicine to your vagina?…which had his name on the prescription. And I was 12 years old and I wasn't thinking at all…I'm 13 at this time…" (p. 40)
[113] It happened in November when her mother was visiting S. in the neonatal unit and her brothers were not at home. (pp. 43, 44)
[114] The incidents happened more than 5 times. "Maybe ten would be a possibility". (p. 49)
[115] Officer Prescod asked if L.M. was circumcised.
[116] S.T. said she was not sure because she tried her best not to look at his penis; she would stare off into space. (p. 54)
[117] S.T. was asked if anything happened in January of 2011. She replied:
"I'm pretty sure something happened about January, but the most dramatic stuff happened around like fall area. 'Cause around January was the time where I kinda got fed up and I was like, you know what, I don't wanna do this anymore. And that was the time I experienced more beatings (by her mother). And that was the time he wasn't around more and more, and he'd kind of go off to the bar at night…" (p. 56)
[118] S.T. stating that her mother was clueless about what happened. (p. 58)
[119] L.M. left in April. He told S.T. that he was not coming back. Her mother was naïve and thought they were having a relationship problem.
[120] S.T. stated that L.M. had used her mother. (p. 58)
[121] S.T. testified that she was diagnosed with keratoconous (vision loss) in September 2010.
[122] S.T. stated that L.M. would tell her that he would tell her mother not to beat her up. That is how he got his way with her. (p. 75)
[123] L.M. would be "pissed off" when her mother would go shopping and leave him with baby S. (p. 76)
[124] Her brother S. "despised" L.M. and that is why S. would leave the house. (p. 77)
[125] L.M. would tell her not to get "pissed off" at her mother. (p. 79)
[126] Starting on page 79 through to the end of the 118-page transcript, Officer Prescod took S.T. through all the allegations again.
Cross-Examination of S.T.
[127] In cross-examination, S.T. made it clear that she did not like L.M. in her life from the beginning.
[128] S.T. admitted that she was mistaken in stating that L.M. was using her mother to get his immigration papers. She did not realize that he was already a Landed Resident of Canada and became a Canadian citizen.
[129] S.T. was adamant that she was in her mother's bedroom many times.
[130] She repeated that L.M. put the cream on her vagina when she had the yeast infection.
[131] She was questioned extensively on her failure to disclose to family members, friends, teachers, CAS workers, police, and other health professionals she had dealt with during the time of the allegations and for the 2-year plus period thereafter (fall of 2010 until March of 2013).
[132] S.T. agreed that she did not disclose to her foster mother until her foster mother asked her if she had been molested before. S.T. testified that she would have disclosed eventually "definitely, one-hundred, thousand, infinity percent". (p. 20) She said she was almost ready to disclose when her foster mother asked her the question.
[133] S.T. testified that she ran away from home multiple times because her mother was beating her up.
[134] It was suggested that she fabricated these allegations from things she has watched on TV and the internet. S.T. replied "not necessarily…I highly doubt it". (p. 19)
[135] S.T. also testified that she is too lazy to make something up that is this gruesome. She said it is too sick to make up. She needed to "test the waters to see if people are trustworthy". (p. 22)
Re-Examination of S.T.
[136] In re-examination, S.T. was again asked about her failure to disclose to all the people in authority she had dealt with in the intervening years.
[137] S.T. replied: "…whatever title they might hold, they're still strangers to me…it does take some courage…I was not comfortable…it was too much for me to handle, just both the sexual assault and the abuse by my mother at the same time. I guess there's a saying, you just have to eat the elephant, parts by parts, and that's what I was doing; just trying to handle one at a time before I explode for the sake of my sanity. So, it was just chip away at the stone, little by little, before I could get to everything." (p. 30)
[138] She did not disclose to her mother because her mother was an abuser. Her mother was so into her relationship with L.M. that she could not say anything about him to her. Her mother was accusing her of ruining her relationships. She tried to make it all work because her mother was blaming her for her failed relationships. (pp. 31, 32)
[139] S.T. described the "bribe-like situation" to be like "shaking the hands with the devil" to protect herself from her mother's blows. (p. 32) Her mother was not going to kick L.M. out of the house and she needed the roof on top of her head.
Summary of the Testimony of L.M.
[140] L.M. was 43 years of age when he testified.
[141] He was born in Zimbabwe and left for the U.S. to study in 2000 when he was 30 years of age. He left Zimbabwe because of the political situation.
[142] Because the situation in Zimbabwe did not stabilize, he immigrated to Canada on December 19, 2005.
[143] L.M. gave extensive evidence about his various jobs with youth groups in Zimbabwe, the U.S. and Canada.
[144] L.M. consistently denied all the allegations.
[145] He testified that S.T. was an attention-seeking, manipulative and very smart child in need when he knew her.
[146] He tried to talk to Y.M. about her physical abuse of S.T., but Y.M. would not listen.
[147] He denied ever moving into the Burlington townhouse. He maintained that he had his own apartment in Mississauga until late fall of 2010.
[148] After that he would spend most of his time with his "sister" in the Jane and Finch area.
[149] He moved to Yellowknife to work with youths in April 2011.
Analysis
[150] I have applied the three-part reasonable doubt analysis described in R. v. W. (D.), [1991] 1 S.C.R. 742.
Assessment of L.M.'s Testimony
[151] It turns out that this "sister" he was spending a lot of time with when he was with S.T.'s mother, was also a girlfriend he had at some point.
[152] L.M. gave evidence about many women he has been in a relationship with. He has 5 children by 3 or 4 different women in different countries.
[153] L.M. was proven to be untruthful with respect to much of his evidence. For example, he maintained that he was not terminated from his position with the Salvation Army in Toronto in November of 2009. The Crown called evidence to prove that this was incorrect.
[154] He maintained that he was not evicted for non-payment of rent from his Mississauga apartment. The Crown called evidence to show that he had borrowed money from Y.M. because he could not cover his rent.
[155] In short, I do not find L.M. to be a credible witness in many areas.
[156] Because I am left in a state of reasonable doubt on the basis of S.T.'s evidence, I do not find it necessary to review his extensive testimony in any more detail.
Concerns with S.T.'s Evidence
[157] I have carefully reviewed all of S.T.'s evidence and I conclude that she is not credible or reliable with respect to these allegations.
[158] Despite her apparent high intellectual IQ, her descriptions of all the events in question were extremely vague and couched in words of uncertainty. For example, she consistently said "basically" before describing any of the sexual assault allegations. I stopped counting at 40 times. She did not frame any other areas of testimony in this way.
[159] S.T. was unclear about the number of incidents. She stated possibly 6 to 8 times; more than 5 times; ten would be a possibility. She was consistent in her vagueness.
[160] S.T. talked about L.M. "kind of" trying to penetrate her and how she "kind of" tried to push him away. There was nothing concrete in her descriptions of her reactions or L.M.'s actions.
[161] I am also suspicious of S.T.'s "déjà vu" incident in the doctor's office. This unnamed doctor allegedly hugged her and told her she was beautiful and this disclosure emerged right after a leading question posed by her foster mother – "S.T. have you been molested before?" Was I to understand that a doctor had "molested" S.T.? There was nothing more in the Crown's case about this. I am left confused and uncertain about this.
[162] I also did not follow S.T.'s repeated allegations of being bribed by both her mother and L.M.. It was clear that her mother was physically abusing her and L.M. was trying to stop it and he did not. As someone who professionally counsels children for a living, this must have been an alarming state of affairs. But for S.T. to then link this to sexual offending on his part was a huge leap that I could not comprehend.
[163] I further was concerned about the anatomical sterility S.T. used when describing her female body parts. It sounded like text-book speak to me – not something physically real – but something detached from herself.
[164] What came through loud and clear was her disdain for the influence that L.M. had over her mother. I find that this was what was making his presence awkward and uncomfortable for her. It was clear to S.T. that this man was using her mother and he had no intention to stay around and be a parent. S.T. tried in vain to warn her mother about this fact. Her mother was, in fact, clueless and, on top of that, her mother was blaming S.T. for her failed relationships and physically abusing her.
[165] What a mess for a vulnerable 13-year-old girl to be in. Her mother had exposed her to homelessness when they lived in a shelter for 9 months. Before that instability ended, her mother was pregnant again and S.T. resented this situation. S.T. needed stability, safety and attention and she was not getting it. Her mother and L.M. were putting their own needs first.
[166] It is reasonable to infer, and I do, that L.M. has become the focus of her anger and sense of betrayal. Not because he sexually assaulted her – but because he abandoned them all, as others had done before.
Concerns Regarding the Police Interview
[167] As noted above, the statement was not given under oath or affirmation. S.T. was not cautioned about the importance of telling the truth or any consequences she could face if she did not tell the truth. The Officer assumed she was telling the truth from the beginning. This does not help when assessing the credibility of the statement.
[168] I have put an asterisk (*) beside parts of the interview that are of concern.
[169] At the outset, the Officer compliments her on how smart she is.
[170] He tells her that he appreciates her honesty.
[171] He tells her that he really appreciates her forthrightness.
[172] He apologizes for making her uncomfortable and told her one of her answers was excellent and perfect.
[173] This flattery was not only unnecessary, it was also inappropriate in the context of a sexual assault investigation. Officers must remain neutral during the interview process. The police interview room is not a therapist's couch.
[174] I appreciate that Officer Prescod was trying to relax a tense situation. However, praising the disclosure of an alleged sexual assault can create the danger of encouraging a dishonest witness to keep on going with a false story.
[175] Further, I am critical of how many times S.T. was taken through her allegations. It appears that Officer Prescod was assisting S.T. in putting some order to her allegations. The more they went over it, the more S.T. emerged with a story she could "basically" keep to.
[176] I appreciate that S.T. was only 15 years old at the time of this interview. However, her vocabulary and intellectual functioning is much higher than most of the adult witnesses I have heard in the courts. She did not need the special accommodation she was given.
Concerns Regarding the Late Disclosure in the Circumstances of this Particular Case
[177] S.T. was very articulate in stating why she did not disclose the allegations for more than 2 years.
[178] She spoke of a failure to trust her mother and the police, and I can understand why that would be true.
[179] However, there were many professional people that came to her rescue once her mother's abuse of her was known. She dealt with CAS, police, hospital and other medical professionals. She was in the safety of a foster home. Her support system was extensive and intensive.
[180] I do not accept in the circumstances of this particular case that S.T. disclosed these allegations when she finally felt safe. It is reasonable to infer, and I do, that S.T. was in need of more attention and she created this story to get it.
[181] Even if my assessment of the credibility and reliability of S.T.'s testimony is incorrect, I am left in reasonable doubt as to the guilt of L.M. on these charges based on all the evidence.
[182] Accordingly, findings of not guilty are registered.
Obiter
A judicial pre-trial was conducted with counsel in this matter on September 27, 2013. At that time, defence counsel confirmed in writing that this would be a preliminary hearing. Both counsel estimated one day of court time. Several weeks before the preliminary hearing date, defence counsel advised the Crown and the Trial Coordinator that this would be a trial. Both counsel estimated 2 days for trial (see March 17, 2014 transcript at p. 40). Counsel did not seek further input from the JPT Judge. They should have.
This is yet another example of counsel failing to adequately estimate the court time required to hear matters from start to finish in a timely way. This chronic failure has resulted in many split-up trials and delayed judgments. When judgments are delayed, justice is not well served.
Released: December 11, 2014
Signed: Justice L.M. Baldwin