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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 File and Parties
Court File No.: Town of Oakville 815/14 Date: 2015-12-02 Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
C.C.
Before: Justice Stephen D. Brown
Heard on: June 9, 10, July 8, 2015
Reasons for Judgment released on: December 2, 2015
Counsel:
- Kelli Frew for the Crown
- Paul Stunt for the accused C.C.
Brown, J.:
1: INTRODUCTION
[1] The defendant is charged that he, on or about the 13th day of March 2014, did commit a sexual assault on Y.P. contrary to section 271 of the Criminal Code.
[2] He is also charged with sexual interference against the same complainant contrary to s. 151 of the Criminal Code alleged to have taken place on March 13, 2014 and an offence of Invitation to Sexual Touching contrary to s. 152 of the Criminal Code again involving the same complainant on the same date.
[3] At the times of the alleged occurrences Y.P. would have been five-and-a-half years old. At the time of trial she was one month shy of being seven years old. She testified by CCTV pursuant to s. 486.2 of the Criminal Code and with the assistance of a support person.
[4] The Crown proceeded summarily and the trial spanned three days before me.
2: ISSUES BEFORE THE COURT
[5] The defendant testified in his own defence and the primary issue in this case is that of credibility and whether the Crown has proven all of the essential elements of the charges beyond a reasonable doubt. The identity of the assailant is at issue in this trial. The defence suggests that if anyone inappropriately touched the complainant it was not the defendant but his son.
3. THE EVIDENCE
3.1 The Evidence of L.P.
[6] L.P. is the mother of Y.P. She was the first witness called by the Crown.
[7] She came to Canada from the Philippines in 2000 and in March of 2014 she was living with her daughter Y.P. who at the time was five years of age.
[8] Her job requires that she work split shifts generally from 8:00 a.m. until noon and then from 5:00 p.m. until 9:00 p.m., but these hours can vary depending on the patients that she is caring for.
[9] This presents some childcare challenges because she is a single mother.
[10] In March 2014 her daughter was attending public school and it was necessary to arrange babysitting for her during her evening shifts or when she worked on weekends.
[11] Her daughter, the complainant, who was born in 2008, had one babysitter from the time she was 18 months old until that babysitter left to return to the Philippines in 2012 and since then she had several different babysitters.
[12] In 2014 she utilized three different babysitters, one was a lady that she knew from church, another was a lady that she had known since she moved to Canada.
[13] Another one of those babysitters was C.C. C., who was a co-worker that worked with her at the Assisted Living Centre where they were both employed. She had known her since 2009 when she went back to work after maternity leave. C.C. C. is the wife of the accused. She and the accused had two older children, a boy aged 17 and a daughter aged 24, who both resided in the home with the accused and his wife.
[14] C.C. C. frequently looked after Y.P. during the evening shift or on weekends if she was available to.
[15] Y.P. referred to C.C. C. as "T.1" which is Tagalog for aunt and she would refer to the accused as "T.2" which meant uncle. She also would refer to C.C. as "C.".
[16] She would refer to the accused's son as "K." meaning like a big brother and she would refer to his daughter as "Ate" meaning like a big sister. The importance of this will become apparent later in these reasons.
[17] On March 13, 2014 L.P. was scheduled to work the evening shift at the Assisted Living Home and she had to be there at 7:00 p.m. The babysitter that she had intended to look after her daughter was the lady that she had known from church, but that lady had to attend at church and was unavailable to babysit that evening.
[18] She then phoned C. to see if she could look after her daughter for a couple of hours, but she did not get an answer on her cell phone and believed that C. had to work as well.
[19] She then went to the defendant's home and was met by him at the door. She asked if he could look after her daughter for a couple of hours and he agreed to. His wife was not at home at the time but his son C. was home.
[20] She arrived back at about 8:35 p.m. and her daughter was happy to see her and she said "that was fast mommy".
[21] The defendant had followed them out to the front door of his house as L.P. had parked on the street.
[22] As she was getting into the car her daughter said to her that T.2 showed her his "peck peck" which was a term that she had used to refer to male or female genitals.
[23] Her mother asked her if he asked her to touch it and she said that he did.
[24] Later at the dining room table she asked her if he touched her and she said he did and pointed to her crotch area. When she did this her mother asked her "inside or outside" and she said "inside".
[25] Her mother was quite upset, put her daughter to bed and the next day took her to school in the morning and after that went to the police. The police interviewed her daughter later that day on March 14, 2014 and completed a video statement. That statement was used by the prosecution pursuant to s. 715.1 of the Criminal Code on consent.
[26] In cross-examination L.P. agreed that the C's babysat her daughter many times, between twenty and forty times. On at least half of those times the defendant would be there, to L.P.'s knowledge.
[27] She would speak to the defendant many times if he was there when she dropped her daughter off for babysitting. She called him "M." which in another dialect of Tagalog means the same as K. or big brother. She would call the defendant M. in front of her daughter when she dropped her off and sometimes called him T.2. She admitted in cross-examination that T.2 can mean an adult male as well as uncle in Tagalog.
[28] She was questioned by Mr. Stunt about her use of the phrase "peck peck" to describe genitals and she agreed that it was a Philippino word and not a word that would be taught in the senior kindergarten class that her daughter was in during March 2014.
[29] She said that she talked to her daughter about sexual organs for boys and girls and their names and used a textbook that had been given to her by a friend, although that just contained generic body parts, not sexual organs. She was not aware of the curriculum at her daughter's school in senior kindergarten and what the extent of her sex education was, if any, that she received in school and she had not seen any school textbooks during her daughter's school year that contained anything about sexual education.
[30] In cross-examination she conceded that several times when she arrived to pick up her daughter she would be doing "monkey play" with the defendant, which is where she would hang on and swing off the defendant's arm.
[31] She conceded that her daughter and the defendant always seemed to get along well and even on the evening of March 13, 2014 when she picked her up she seemed fine and happy.
[32] L.P. stated that she has seen the defendant's 17-year-old son C. in his room when she dropped her daughter off on the evening of March 13th. She could not describe what the son was wearing and could not describe in any great detail what the defendant was wearing that evening.
[33] She conceded that she chatted in a friendly way with the defendant when she dropped her daughter off that night and also chatted with him when she picked her up that evening and that his demeanour was the same when she dropped her daughter off as it was when she picked her up, friendly and chatty. He did not appear to be sheepish or embarrassed.
[34] She said in cross-examination that her daughter and the defendant would sometimes watch the children's show "Treehouse" on channel 73 on the television that was located in the defendant's living room.
[35] She also testified that when she dropped her daughter off that evening when she was speaking with the defendant she referred to him as M. in front of her daughter, not as T.2.
[36] She conceded that her daughter would sometimes watch the defendant's son play computer games in his bedroom. She described the bedroom as having a bed and a computer in the corner on a desk with a chair. She could not remember if there were any other chairs in the boy's room. She was not aware of what kind of games her daughter watched C. play on the computer.
[37] She conceded that her daughter had eczema and that she had taken her to the doctor shortly before this alleged incident to have her treated. She was prescribed cortisone cream and had a rash on her back, arms and on her stomach around her navel that was itchy and she frequently scratched it or asked her mother to rub it or put cream on it.
[38] On cross-examination she was asked by Mr. Stunt if, when her daughter said that T.2 had shown her daughter his peck peck, she said what room this happened in. She said that it happened in the living room, but when it was suggested to her that she never told the police that, nor was she asked where it took place until Mr. Stunt asked her, she agreed with him.
[39] It was put to L.P. in cross-examination that when she picked up her daughter that night the defendant had mentioned to her that she had been scratching herself and that L.P. told him that she had taken her to a doctor and had been given an ointment and she lifted up her daughter's clothes to show him the rash. She did not recall that happening, but could not say that it did not. She was of the view that it did not.
[40] She confirmed that after her daughter told her that T.2 showed her his peck peck she asked her a series of questions and got responses to them such as did you touch it – yes, did he say anything – he said it tickles, did he put it away – no answer, what else did you do – watch tv.
[41] After this conversation with her daughter just moments after leaving the defendant's house, she did not return to confront him, did not call the police and did not call or speak to his wife who she described as her best friend. The first person she spoke to was her other babysitter Gloria.
[42] The next morning before going to the police she called and left a message that she wanted to talk to the defendant's wife C. on her cell phone voice mail but she did not speak to her.
[43] In cross-examination L.P. was asked if she saw the defendant's son when she picked up her daughter and she said that she saw him come out of his room. When she dropped her daughter off, she did not see him and assumed that he was in his room.
[44] Mr. Stunt asked her if she had a discussion with her daughter preceding this time about how no one is allowed to touch her private parts except a doctor perhaps and that if someone did touch her there they were bad people and she should get away from them. He then established that when she picked up her daughter she was watching television with the defendant and seemed happy.
[45] Mr. Stunt then established that she was happy the next day when she picked her up at school and that she had not told anyone at school. She had asked her teacher, and her teacher had said that she was fine at school that day.
[46] On re-direct Ms. Frew established that she had told Mr. C. about her daughter's eczema on a prior occasion before the alleged incident occurred.
3.2 The Evidence of Y.P.
[47] Y.P. was six-and-a-half years of age when she testified in this trial. She promised to tell the truth pursuant to s. 16.1 of the Canada Evidence Act. She gave her testimony by CCTV and had a support person, Kerry Murray from the Victim Witness Assistance Program.
[48] The complainant viewed the video of her police interview with Detective Constable Christina Einboden of March 14, 2014 and she adopted its contents as truthful.
[49] In the video, Y.P. stated at the start that the defendant's wife looked after her the previous evening. She also said in the video that there was a boy there, and when asked if he was a kid or a man she described him as a grownup.
[50] She stated that she was at the house on the previous evening as her mother worked for just an hour last night and that she watched the TV show called "Cat in the Hat" with the boy. When questioned by the officer later about whether the defendant's wife was there or whether she was working that night, she did say that she was working.
[51] One particularly important exchange is found commencing on page 17 of the transcript. It is necessary to reproduce pages 17 to 26 of the transcript as they give a particular flavour to this interview and to the issue of identification:
D/Cst. Einboden: Okay? So last night you said you were with the boy, or the man, the grownup. What do you call him?
Y.P.: T.2.
D/Cst. Einboden: T.2? What does that mean?
Y.P.: It means, uh – I don't know.
D/Cst. Einboden: You don't know, but that's what you call him, T.2?
Y.P.: (Nods head yes.)
D/Cst. Einboden: Tell me about T.2.
Y.P.: Uh, um, right now they're very sick today.
D/Cst. Einboden: They're sick?
Y.P.: (Nods head yes)
D/Cst. Einboden: Mm-hmm.
Y.P.: So we don't clo – too close to them.
D/Cst. Einboden: What do you do when you're with T.2?
Y.P.: And you know what? Do you know how to speak Tagalog?
D/Cst. Einboden: No.
Y.P.: You have to learn it.
D/Cst. Einboden: Yeah. I'd have to learn. Sorry, I don't. Do you?
Y.P.: How to say hello in Tagalog you say (speaks in Tagalog).
D/Cst. Einboden: Ooh, that sounds hard to say. (Speaks in Tagalog.)
Y.P.: No, say (speaks in Tagalog).
D/Cst. Einboden: (Speaks in Tagalog.)
Y.P.: (Speaks in Tagalog.)
D/Cst. Einboden: (Speaks in Tagalog.)
Y.P.: Now just put it altogether.
D/Cst. Einboden: Okay. You do it first.
Y.P.: (Speaks in Tagalog.)
D/Cst. Einboden: (Speaks in Tagalog.) Oh, see...
Y.P.: Good.
D/Cst. Einboden: ...you taught me something. Thank you. So what do you normally do when you're with T.2?
Y.P.: Um, uh fir – first I need to remember.
D/Cst. Einboden: Okay.
Y.P.: You know what? He's, he showed to me here (indicates).
D/Cst. Einboden: What is that?
Y.P.: Peck peck.
D/Cst. Einboden: Peck peck. He showed that to you?
Y.P.: Yeah. And, and with boys it's long.
D/Cst. Einboden: Yeah? And when did he show you his peck peck?
Y.P.: Um, tonight and then he feeled my peck peck.
D/Cst. Einboden: He feeled your peck peck? What – when did he do that?
Y.P.: At nighttime.
D/Cst. Einboden: At nighttime?
Y.P.: After his – can we go sneak it out? (Inaudible.)
D/Cst. Einboden: (Inaudible.) I just want you to tell me a little bit more about that. When he touched your peck peck was it over your clothes or under your clothes?
Y.P.: Under.
D/Cst. Einboden: Were your clothes on or off?
Y.P.: On.
D/Cst. Einboden: They were on. Did he pull your clothes, did he pull your clothes down or did he just put his hand down your pants?
Y.P.: He just put it down my, my pants.
D/Cst. Einboden: Okay. And, um, what did he say?
Y.P.: When I touched his he said, he said, that tickles.
D/Cst. Einboden: He said it tickles when you touched his?
Y.P.: Yeah.
D/Cst. Einboden: What was he wearing?
Y.P.: He was wearing underwear.
D/Cst. Einboden: Mm-hmm.
Y.P.: Or underpants.
D/Cst. Einboden: Yeah.
Y.P.: ...or panties.
D/Cst. Einboden: Yeah. And was he wearing pants?
Y.P.: Uh, yeah, he just pulled it down.
D/Cst. Einboden: Okay. Did he pull his underpants down, too?
Y.P.: (Nods head yes.)
D/Cst. Einboden: Yeah.
Y.P.: And then I – and then it's squishy, kind of it was squishy.
D/Cst. Einboden: What was squishy?
Y.P.: It was the peck peck.
D/Cst. Einboden: The peck peck was....
Y.P.: Can we go sneak it out?
D/Cst. Einboden: We will. Seeing your hair's all standing up. It's all staticky. Soon, okay? Almost. So how do you know his peck peck was squishy?
Y.P.: Beca – because, uh, um, because when, when you grownup, your peck peck start going bigger and bigger until it gets so fat.
D/Cst. Einboden: Yeah. How do you know that?
Y.P.: Uh, I don't know. And do you know I'm upside down?
D/Cst. Einboden: You are upside down. How do you know that when you – your – a, a boy's peck peck gets bigger and bigger until it gets fat?
Y.P.: Because that, that what happens when you keep growing.
D/Cst. Einboden: Yeah, okay. And....
Y.P.: When are we sneaking that?
D/Cst. Einboden: We are going to soon. Soon, okay. I just want you to finish telling me about this and then we can go. Okay?
Y.P.: Okay.
D/Cst. Einboden: So, um, you said that he – so T.2 was wearing his pants and his underpants, and then he pulled them down, right?
Y.P.: Yeah.
D/Cst. Einboden: And then what did he do with his peck peck?
Y.P.: He just, just let me feel it.
D/Cst. Einboden: Yeah?
Y.P.: Is this you (indicates) ?
D/Cst. Einboden: That's me. I had short hair though.
Y.P.: And I got a haircut too. It was long.
D/Cst. Einboden: Yeah? I love your hair. I love....
Y.P.: It was long before but I went to a hair salon, First Haircutters, and they cut it to my shoulder. And my momma's is kinda longer but we're, we're like twins.
D/Cst. Einboden: Yeah, like my hair's the same length as your hair. Yours is maybe a little bit longer than mine.
Y.P.: (Laughs.)
D/Cst. Einboden: So what did you touch his peck peck with?
Y.P.: My hands.
D/Cst. Einboden: Okay. And what did he touch your peck peck with?
Y.P.: His hands.
D/Cst. Einboden: Yeah. Did he say anything when he touched your peck peck?
Y.P.: Nope.
D/Cst. Einboden: No.
Y.P.: He didn't say nothing.
D/Cst. Einboden: Okay. And....
Y.P.: When – can we sneak?
D/Cst. Einboden: Soon. And then what happened after that happened?
Y.P.: Um, we just watched Cat in the Hat. Can we go sneak it out now?
D/Cst. Einboden: How many times has that happened?
Y.P.: Uh, (inaudible) – can we go sneak it out now?
D/Cst. Einboden: Was – just tell me how many times that happened. If you don't know it's okay, but did it happen once or more than once?
Y.P.: Um, just two times.
D/Cst. Einboden: Two times. So when was the first time?
Y.P.: The first time was – he – I touched his and then he touched mine.
D/Cst. Einboden: Oh, okay. Was that on the same day or different days?
Y.P.: Same day.
D/Cst. Einboden: Okay. Did it ever....
Y.P.: Can we just sneak it out now? I'm waiting.
D/Cst. Einboden: I know. We're gonna go really soon. So did that happen on one day?
Y.P.: How, how much minutes we're gonna sneak it out? How much minutes?
D/Cst. Einboden: Yna, did that happen on more than one day or just one day?
Y.P.: Uh, just one.
D/Cst. Einboden: One day.
Y.P.: Can we go sneak it out now?
D/Cst. Einboden: Okay. Did you tell anybody about it?
Y.P.: No. It's a secret.
D/Cst. Einboden: Who said it was a secret?
Y.P.: Uh, I just made up.
D/Cst. Einboden: Yeah. Did you tell anybody?
Y.P.: No.
D/Cst. Einboden: Did you tell your mommy?
Y.P.: No.
D/Cst. Einboden: You didn't tell your mommy?
Y.P.: Nope. I just keep a secret forever.
D/Cst. Einboden: Till you told me?
Y.P.: Yeah.
D/Cst. Einboden: 'Cause you....
Y.P.: But don't tell anybody.
D/Cst. Einboden: Oh, okay. It's a secret? You shouldn't keep secrets. (Inaudible.)
Y.P.: Can we go now?
D/Cst. Einboden: All right. Soon, okay? Is there anything else that you want, want to tell me?
Y.P.: Uh, not now. Can we go sneak it out now?
[52] As is evident throughout the video, Officer Einboden has difficulty focusing the complainant on her evidence and does not delve into certain known misstatements made by the complainant. In her very first question of the complainant in the excerpt above, it is unclear as to whom she is referring to, the boy or the man, the grownup who she then refers to as T.2. T.2 can mean an adult male, as well as an uncle, as was brought out by the cross-examination of L.P.
[53] She then states, when asked to tell her about T.2, that "they are very sick today." There is no attempt at clarification of this rather odd statement by Officer Einboden.
[54] In this excerpt as well when she was asked if she told anyone about it she replied no and when specifically asked if she told her mother she said that she did not. No attempt at clarification or further probing was done even though this was known to be absolutely incorrect inasmuch as it was her mother who brought her to the police.
[55] Earlier in the transcript of the video statement at page 12, the complainant is asked who looked after her last night. She says "Cooney" which is another name for the defendant's wife. We know that she was not home that night and it was the defendant that was charged to look after her. This was not corrected until later in the transcript when the complainant was asked again if Cooney was there or if she was working too.
[56] Just after that she is asked about the boy being C., the defendant's son. When Officer Einboden asks her if the boy is a kid or a man the reply is that he is a grownup.
[57] She later says that she watched the TV show "Cat in the Hat" with the boy.
[58] It is noted that when asked in the statement what happened after the touching she said we just watched "Cat in the Hat".
[59] When she was asked in the above excerpt "he showed that to you?" She replied with, "Yeah. And with boys it's long". The officer sought no attempt at clarification of this statement knowing, as she did, that there was a 17-year-old male at the residence at the time of the alleged offences.
[60] An important part of the cross-examination needs to be highlighted at this point. On page 20 of the June 10, 2015 transcript the following exchange takes place:
Q. All right. And...and on alone time, the night that we are talking about, did you...did you reach over and touch him over top of his clothing and ask him, "What is that?" Do you remember that happening?
A. I think so.
Q. And he said it's a peck peck. Do you remember that?
A. I think so.
Q. And he pushed your hand away, didn't he?
A. I don't really remember.
Q. And did he say to you, "Don't touch that?"
A. I think so.
Q. All right. And that was all that happened with you and C.'s husband, isn't it?
A. I think so.
[61] A further telling piece of cross-examination continues on page 20 of the transcript and should be reproduced in its entirety. It is as follows:
Q. The night that we were talking about, were you...at one time, were you and Carlo sitting on the couch watching...watching something called Treehouse?
A. I think so.
Q. What's Treehouse? Is that a TV show or is it a kids' movie? What is it?
A. It's a TV show for kids.
Q. And is it on a certain station? Is that on station 73?
A. Yeah.
Q. All right. Do you remember sitting on the couch watching Treehouse with C.?
A. I think so.
Q. Yeah. And was he laying down?
A. I don't really remember.
Q. Okay. Can you think hard for me? Try to remember? I know you're working...
A. Um....
Q. ...I know you're working hard. Do you remember if he was laying down on the couch?
A. I think so.
Q. And were you laying down in front of him?
A. No.
Q. Did you...were you sitting in front of him?
A. No.
Q. Did he put his hands on you when he was laying on the couch?
A. Yeah.
Q. What part of you did he touch? It's okay to tell us.
A. I think my shoulders.
Q. Mm-hmm. Did he touch any other...anywhere else?
A. I think he just touched my shoulders.
Q. Okay. Did he put his hands around in front of you?
A. I think so.
Q. Okay. I want you to think hard. Okay. And you've been very good today. Did he...did he put his hands on your peck peck? Maybe just one hand?
A. No.
Q. Never? Or just...
A. Never.
Q. ...not on the couch?
A. Just not on the couch.
Q. All right. How long do you think you watched Treehouse with him?
A. Um...
Q. Is it a whole...did you watch the whole show, the whole program?
A. I think so.
Q. Okay. And does it take a little while to watch?
A. Like, what do you mean?
Q. Like, does it take longer than you've been talking to me today?
A. Maybe.
Q. Okay. Do you remember now...the night that we're talking about? Do you remember the night that your mother dropped you off at C.'s house because your mother had to go to work and C. was not there. That's the night we're talking about, isn't it?
A. I think so.
Q. Okay. When you got to the house, who answered the door?
A. C.
Q. Right. And C.'s husband wasn't there at that time, was he? You didn't see him when the door opened, did you?
A. No.
Q. So, it was a little while before he came to where you were, wasn't it?
A. I think so.
Q. Did you ask her where he had been, where he was?
A. No.
Q. Okay. But, did you spend some time, just you and C., in the house before C.'s husband came to where you were?
A. I think so.
Q. And is that when you watched Treehouse?
A. I think so.
Q. All right. And C. wasn't there, was she?
A. No.
Q. Now, Y., yesterday, do you remember me asking you what clothes C.'s husband was wearing when you were there at the house? Do you remember that yesterday?
A. I think so.
Q. Okay. Before that, has anybody ever asked you what he was wearing the night that you...
A. Um...
Q. ...you were at their house? Has anybody else ever asked you what he was wearing?
A. No.
Q. Has anybody ever asked you what C. was doing?
A. Yes.
Q. Who asked you? Well, I know I did. But did anybody, not me, ask you?
A. Coonie, when she was there?
Q. What night was that? Was this the night when Coonie wasn't there or is this another night?
A. It was another night.
Q. Was it before or after what we're talking about?
A. I think before.
Q. Okay. Now, when you and...and C. were on the couch, watching Treehouse, did you touch him?
A. Yeah.
Q. Where...where did you touch him?
A. On the hand.
Q. Why did you touch him on his hand?
A. So, I was sitting in front...so, I was sitting on him and hold his hand so I won't fall front wards.
Q. Oh, I see. Okay. Where was his hand?
A. It was just on the couch.
Q. Okay. In front of you or behind you or beside you?
A. Beside.
Q. Was he touching you with his hand?
A. Can you repeat that again?
Q. Sure. Was he...was he touching you with his hand when you touched his hand?
A. I think so.
Q. Where...where was he touching you?
A. On my hand.
Q. On your hand? Okay. Did you talk to him when you were on the couch with him?
A. Yes.
Q. What did you talk about?
A. Like, how to take care of a puppy.
Q. Oh, okay. Because you were going to get a dog, were you?
A. Yeah.
Q. You were thinking...were you thinking about getting a dog?
A. I was thinking of getting a puppy.
Q. A puppy. All right. Did you get a puppy?
A. Not yet.
Q. Are you going to get one?
A. Yes.
Q. All right. Do you remember when you were on the couch with C. that he touched you in a place that you call your peck peck and you told him that it tickled? Do you remember that?
A. I think so.
Q. A… C.'s husband wasn't there then, was he?
A. No.
[62] The above noted excerpts of cross-examination were devastating to the Crown's case, in my view. The groundwork for the compelling suggestion made by the defence that the police failed to investigate this matter fully and completely was also laid in cross-examination. For instance, Officer Einboden never asked the complainant to describe what the accused was wearing. This may have helped to allay the concern that developed in me during the complainant's evidence that she was describing an event with a different suspect than the one who was eventually charged.
[63] Valiant attempts were made to rehabilitate this witness in re-direct. In my view, they were not successful.
[64] In re-direct the complainant testified that it was C. that touched her and showed her his genitals but on a different night and in a different location. She said that it was in his bedroom that this happened on another night and that it never happened in the living room.
[65] The complainant confirmed the testimony brought out on cross-examination that she touched the defendant's crotch over his clothes and asked "What is that?" She said this happened before he showed her his penis and asked her to touch it. The area of re-direct that was avoided was whether he told her not to do that. Perhaps it seemed odd to the Crown, as it seemed to me, that he would tell her not to touch him there and then take off his clothes and have the complainant touch his penis and to then touch her in a sexually inappropriate manner. Those actions do not make sense to me and left me with a reasonable doubt about the reliability of the complainant's evidence when I assessed the evidence of this trial in its entirety.
3.3 The Evidence of Christina Einboden
[66] Detective Constable Einboden had been with the Halton Regional Police Service for eight years when she testified before me. She had been in the Child Abuse and Sexual Assault Unit for five years. She was the officer in charge of this case.
[67] The Crown in this trial reluctantly called her so that she could be cross-examined by Mr. Stunt. It was apparent why the Crown had been so reluctant to call her and had attempted to resist doing so.
[68] During this trial, one set of notes were disclosed to Mr. Stunt that had been created in July 2014. When asked why those notes were not previously disclosed, this witness replied "no reason".
[69] These notes concern information imparted to her by Ms. Tasson, an Assistant Crown Attorney, about the possibility of the defendant's son being involved.
[70] The following excerpt of cross-examination beginning at page 41 of the June 10, 2015 transcript is telling and highlights what I found to be a serious flaw in this case, the failure to investigate another possible suspect. In the transcript, the following exchange occurs:
Q. In any event, let's go back to that one. It appears on July the 25th, 2014, you had a message from one of the Crown Attorneys, Miss Tasson, regarding this case and that you followed up with a phone call.
And it says in brackets, in response to an email of lawyer for Mr. C.'s son has advised the son is going to provide an inculpatory statement to police. Okay? That's July the 25th of 2014?
A. Yes.
Q. All right. And then you...you advised somebody, it looks like another officer, is that...can you tell me who that is?
A. That was my Detective, so our Sergeant of the unit, Detective Chris Newcombe.
Q. Okay. Via phone yesterday. Then, it appears to me over the next several days, there were either email or voicemail messages back and forth between you and Mr. O'Marra, Paul...
A. Correct.
Q. ...Paul O'Marra? You knew...you've been advised that he had been retained by Mr. C.'s son?
A. Yes.
Q. Okay. Finally, it appears that you...you actually spoke with Mr. O'Marra on August the 7th of 2014, is that correct?
A. Yes.
Q. And then, this is...this is your note that he advised that he had been retained for C.C.?
A. Correct.
Q. That he will make some admissions...
A. Correct.
Q. ...and then you advised him of your concerns or is that him advising you of his concerns?
A. No, I advised him of my concerns.
Q. Okay. And you...you thought that Mr. C. had admitted to touching the young girl's vagina?
A. He had admitted to it in his statement to police, he...
Q. Well, the statement's not been tendered, Ma'am. That's...
A. You asked me...
Q. ...I just wanted...
A. ...that question...
Q. ...to clear...
A. ...so my answer to you is that when Paul O'Marra called me and he ask...he told me that his client would like to provide some admissions, I told him that my concerns were that his father had already admitted to committing the sexual offence against the...
Q. Well, let's...
A. ...victim.
Q. ...just be clear. An interview was arranged for Mr. C. using an interpreter that wasn't an accredited interpreter, isn't that correct?
A. That's correct.
Q. And that...that the person that you got to come and be the interpreter for the interview was somebody from the...that had been identified from the multicultural society, not an accredited person?
A. We found that out later, yes.
Q. Well, isn't there a...a directive with the police service as to what you are to do when you...and you want to interview somebody where there is a need for an interpreter?
A. Yes, there is.
Q. It wasn't followed, was it?
A. I'd have to review the policy...
Q. The...
A. ...but we are to contact the multicultural counsel of Halton.
Q. And you are aware that the Crown retained, in some fashion, somebody to do a proper translation of the recorded interview and then chose not to use it? You're aware of that, aren't you?
A. I'm not.
Q. All right.
A. I'm not aware of that. Sorry.
Q. Okay. So, then, you tell Mr...Mr. O'Marra says he will speak with his client and advise you. And then you tell him that you would be available next week to meet with his client and take a statement from him?
A. Correct.
Q. And that's the end of your note?
A. That's right. He never called me back.
Q. So...so, that...my point is this, you left it up to his counsel to decide whether or not he should be interviewed?
A. He asked me if he could contact me the following week to set up an appointment and he never did.
Q. You left it up to his counsel to decide whether or not Mr. C.C. would be interviewed?
A. Correct.
Q. Here, you had information of another suspect, right?
A. Well, from his lawyer.
Q. Okay. But, did you...from his lawyer. How many...how many times does that happen?
A. Yes, and I was waiting for him to contact me back to provide a statement.
Q. Okay. You've got an allegation of a very, you know, serious...from a five year old girl at that time being sexually assaulted, right?
A. Correct.
Q. Here's my suggestion to you, Ma'am, you don't wait for a lawyer to decide, one, if at all that person's going to come in and be interviewed? You knew who the person was, didn't you?
A. Yes, I knew it was C.C.
Q. You knew that C.C. was the person that Mr. O'Marra was referring to, the son?
A. Oh, in that instance, yes.
Q. You...you're an investigator that's had some training? You go to the house, regardless of what the lawyer says, and you say we'd like to speak to you and you knew he was a youth at the time, right?
A. Yes.
Q. You didn't do that?
A. No.
Q. You didn't phone the house and ask for a parent or Mr. C.C.?
A. No.
Q. You knew that his mother was available?
A. I didn't know that.
Q. Did you check to see?
A. No.
Q. All right. So, the last thing...the last...according to your notes, contact with Mr. O'Marra was August the 7th of last year, last summer?
A. That is correct.
Q. You didn't do anything in terms of trying to obtain a statement from C. C. other than wait to hear from his lawyer?
A. Correct.
[71] To compound my concerns about the thoroughness of this investigation, it was then pointed out that this officer on June 3, 2015 was asked by Ms. Frew, the trial Crown, to provide her notes about attempts to interview the accused's son back in 2014.
[72] Her notes then show that she met with Ms. Frew who requested that she interview the accused's son and possibly re-interview the complainant. That was never done.
[73] At page 48 of the transcript of June 10, 2015 the following exchange takes place in the cross-examination:
A. The Crown Attorney, Kelli Frew, advised me that she would be contacting Mr. O'Marra and informing him of the available dates for myself and Detective Constable Grew, should his client wish to come in and provide a statement.
Q. Okay. But, my point to you is, repeatedly, now...or then, you are the Detective in charge of this case, not the Crown Attorney, right?
A. Correct.
Q. You are certainly aware of your entitlement to try to interview a suspect, whether or not that person's lawyer agrees? You know that?
A. Correct.
Q. And you didn't do that?
A. In this...are you talking about in the last few days?
Q. Yeah. Or...or even back in August of 2014...
A. Okay. So, which question are you asking me then?
Q. I'm saying to you you're aware that you have that entitlement as an investigator to try to conduct an interview, whether or not...
A. Yes.
Q. ...the lawyer agrees?
A. Yes.
Q. And you didn't do that?
A. No, because the Crown asked me to wait until she found out from the...the client's lawyer what his availability was.
Q. Did Mr. O'Marra...I'm looking at his notes...did he ever say to you he needed to be present?
A. No...
Q. No?
A. ...and I...and I wasn't referring to Mr. O'Marra's availability, I was talking to his...about his client's availability.
Q. Well, don't you just...if you've got some information like this, which is pretty serious, you don't go to the house and say, Mr. C.C., I'm Detective Einboden, I'd like to talk to you?
A. No, I already answered that question. I did not go to his house.
Q. Or, given that he's a youth, could you say to Mrs. C., I want to talk to your son? Ever?
A. Did I do that?
Q. Yes.
A. No, I answered that.
Q. Did you ever ask Y. to describe the characteristics of the person that she described as T.2? Facial characteristics, body type?
A. No.
Q. Ever ask her to describe what clothing that person was wearing?
A. No.
Q. Ever show any photographic lineups to Y.?
A. No.
Q. You knew early on that the allegation was that there were two males in the home at the time?
A. Yes.
Q. So, that means that there's two, let's say, suspects, or two witnesses, or one suspect and one witness, depending on how you look at it, right?
A. Yes.
Q. So, C. in your...early on...early on in your investigation would have been a witness?
A. Yes, he was not a suspect.
Q. But, you never even attempted to interview him as a witness?
A. No.
Q. And he was obviously in the home at the time?
A. That was the information I had, yes.
Q. Did you ask Y. at any time to describe the room that...that they watched the TV in?
A. No.
Q. Did you go into the room?
A. No. I saw it from the front door when I...when we arrested Mr. C....
Q. Did you ever...
A. ...C.
Q. Sorry. Did you ever search the house?
A. No.
Q. Or seek a warrant to do so?
A. No.
[74] It is because of these fundamental flaws in this officer's investigation that evidence that it was the defendant's son was the assailant or one of the assailants only comes to light during the cross-examination of the complainant in this case. I cannot comprehend why this officer did not take the initiative to interview the defendant's son in July, 2014 and it is even more perplexing why she did not do this shortly before this trial was to commence in June of this year.
[75] Her inaction in this case has led directly to confusion, uncertainty and my suspicion that she approached this investigation with tunnel vision that will impact significantly in my assessment of the evidence in this case.
[76] Had these matters been addressed and not ignored until the eve of the trial by this officer, and had the Crown not blindly carried on hoping that the complainant not implicate anyone else other than the accused, we would not all (with the exception of Mr. Stunt) have been surprised when the complainant indicated in cross-examination that it was the defendant's son that had committed these offences against her.
[77] I find that Officer Einboden's explanations for her inaction and her poor initial interview with the complainant to be self-serving, illogical and unsatisfactory. Her inaction could perhaps be linked to a statement that was never tendered that convinced her in her own mind that the defendant was guilty and, thus, any further investigation was unwarranted.
[78] Her investigation of this from the start was, in my view, flawed. She did not question the complainant about why she referred to the peck peck in the initial interview on page 19 of Exhibit 2 and said "and with boys it is long", why did she not ask something to the effect of "Was he a boy or a man?" Indeed, on page 22 of Exhibit 2 she incorporates that word into the following question: "How do you know that when you- your-a, a boy's peck peck gets bigger and bigger until it gets fat?"
[79] Some gentle follow-up or further questioning of the complainant could have elicited responses that could have taken this investigation on a far different course than it followed. Even the location of where the offences were alleged to have taken place in the house was not established with any degree of precision during this child's video interview.
[80] At the conclusion of Officer Einboden's evidence, the Crown closed their case and the defence called the defendant as its sole witness.
3.4 The Evidence of C.C.
[81] The defendant was born in the Philippines on December 30, 1965. He completed high school and then took vocational training as a heavy equipment operator.
[82] He immigrated to Canada in December 2009 and he was married in 1987. His wife was present with him in court, as was his 25-year-old daughter, while his son, C., was not present.
[83] He is employed on a part-time basis having lost his full-time job of four years because of the terms of his release that made it impossible for him to continue that work.
[84] He testified with the assistance of a Tagalog interpreter, although he does speak some English.
[85] He lives in a home in Oakville with his wife, son, daughter and four nephews and nieces who live in the basement. Three of the nieces and nephews stay every day and one leaves on the weekend.
[86] He testified that he knows the complainant and her mother and that the complainant is "always" at our house. He sometimes looked after the complainant alone, but if his wife was home she would look after her. He later resiled from this position and said that this was the only time that he had looked after Y. on his own, although no doubt he would have had alone moments with her when his wife was in the home.
[87] When he was looking after her they would watch television and play a game called horses where he would get on all fours and she would climb on his back. They would also sometimes play a game called monkey where she would climb up his front and hang on his arms much like her mother described.
[88] Sometimes his son C. would play with her as well when she was being babysat and they would run around the home.
[89] The defendant stated that his son has a PlayStation with a screen in his bedroom at home and that there are three televisions in the home, one in the living room, one in his daughter's room and one in his and his wife's bedroom.
[90] On March 13, 2014 her mother dropped off the complainant when he was not expecting her, as she had not called. When they were talking before her mother left he told her mother that Y. had a vice, that she was always scratching her privates. When demonstrating the location in court he pointed to his stomach just above his belt line.
[91] He said that Y.'s mother then showed him her right side abdomen, left elbow, the back of her neck and her left lower leg where he could see the eczema.
[92] After her mother left, he and the complainant played. She bounced up and down on his knee.
[93] He described how he is a heavy smoker and would smoke 6 or 7 times in a two-hour period and he would go outside of the house to smoke.
[94] When he would leave to go out to smoke Y. would remain in the living room and sometimes C. would be there. When he would go outside, sometimes she would knock on C.'s door and the defendant would tell him to watch her. That happened on one occasion that night.
[95] He denied ever touching the complainant in an inappropriate manner.
[96] He said on one occasion she had her head on his stomach and asked him where is the baby in his stomach. He also said that on this occasion about an hour after she had been at his home that night he thought that she accidentally touched his genitals and he prohibited her from doing so saying she couldn't touch it because it is "peck peck".
[97] The complainant on her cross-examination confirmed this. On the theory of the Crown the defendant then went from scolding her for accidently touching his genitals to immediately asking her to touch them and to then touch her. I find this to be implausible.
[98] He said that he was shocked when he was arrested by the police and found out about these allegations. As a result of the arrest, he could not continue working where he had been employed for four years as the work there involved working with children.
[99] In cross-examination he said that he had never heard the complainant call C. "T.2", although she called the defendant T.2 sometimes or Uncle.
[100] He also agreed that it was a rare occurrence when he would babysit the complainant when his wife was not at the home.
[101] He agreed that during the time period that he babysat her he would have six or seven cigarettes and when he would do so he would be able to see her from outside while she was watching television. On one occasion she went into his son's room and he asked him to watch her at that time. He said that it was during his third cigarette that she went to his son's room, although I find it difficult to believe that he could remember that with such precise detail.
[102] The defendant, to show where the two were sitting when he left, drew the diagram that is Exhibit 4 in this trial. Both were sitting on the edge of the bed facing the PlayStation and its attached television screen.
[103] He said when he left the bedroom door was open, but when he returned it was closed. He was only gone for about two minutes.
[104] When he returned he opened the door without knocking and they were both sitting on the bed in the same position as they were in when he left. He told Y. that if she was tired of that she could come back and watch television. He said it was three or four minutes before she came back into the living room. While he was waiting for them to return he heard them laughing from the bedroom but he could not hear them talking because of the television.
[105] He disagreed with Ms. Frew when she put the suggestion to him that he never had that conversation with L.P. about the eczema but that he learned about it from his wife on a previous day. He did state in his evidence the complainant was scratching areas of her body but not her genital area on the evening of the occurrence. It is noted that in the evidence of L.P., she admits that she did have a conversation about her daughter's medical condition with the defendant but that she does not think that it was on March 13, but on an earlier day.
[106] Ms. Frew in her cross-examination revisited the testimony about the accidental touching of the defendant's genitals by the complainant on that evening, but the defendant was not damaged by this cross-examination. He agreed that although he was concerned about the complainant touching her own genitals from scratching and on that evening touching his genitals, he did not bring it up with her mother when she picked her up because they were in a hurry.
[107] When cross-examination continued on July 8th, 2015 Mr. C. stated that the complainant was scratching her genital area on March 13, 2014 which was contradictory to the evidence that he gave on June 10. He then resiled from this somewhat and said that he cannot recall if she was doing this on March 13.
[108] In my view, Mr. C. was not shaken in cross-examination in any fundamental way. He is a simple man that made a simple denial; that he did not touch the complainant inappropriately in a sexual manner on the evening of March 13, 2014, nor did he expose himself to her and have her touch him that evening. Although some of his evidence causes me some concern, such as his reference to the complainant scratching herself as a "vice" and him not telling her mother about her accidentally touching his genitals over his clothes as she had her head on his stomach and they were having the conversation about the baby in his stomach, I accept his explanation of the latter as at least plausible that her mother was in a hurry when she picked her up that evening, and since he believed that it was an accidental touching he would not have been compelled to discuss it with her mother that evening when they were in a rush. The reference to her scratching herself as a vice was somewhat troubling to me, but after assessing all of the evidence it is not of such moment that causes me to doubt his testimony on a fundamental level.
4. ANALYSIS
[109] The burden of proof in this case, as in every criminal allegation, is upon the Crown to prove the facts in support of the guilt of the defendant on the basis of proof beyond a reasonable doubt. A reasonable doubt, as per Mr. Justice Cory's comments in R. v. Lifchus, [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1, is defined as "a doubt based on reason and common sense which must logically be based upon the evidence or lack of evidence". Alternatively, it has been defined by Mr. Justice Iacobucci of the Supreme Court of Canada in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 as "falling much closer to absolute certainty than to proof on a balance of probabilities".
[110] As my sister Judge Baldwin stated in the decision of R. v. R.J.A., [2015] O.J. No. 6218, released on November 25, 2015 at paragraph 36:
This is a tough standard and it is for very good reason. As Cory J. said in R. v. Lifchus, [1997] S.C.J. No. 77 (S.C.C.) at para 13:
The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt…is one of the principle safeguards which seeks to ensure that no innocent person is convicted.
[111] I agree with that observation and it is foremost in my mind in the decision in this case.
[112] In assessing a witness's credibility and reliability, I must consider the witness's perception, memory and sincerity. I must consider the witness's ability to observe, store, recall and report evidence accurately, reliably, and truthfully. I must consider the witness's interest or bias, if any, including animosity. I must consider the witness's evidence in the context of its internal consistencies or inconsistencies, its consistencies or inconsistencies with other evidence from other witnesses and, finally, its consistency with reason and the probability of truth. The Court can expect discrepancies and inconsistencies from time to time. Such is the nature of our human personalities and frailties. Some inconsistencies and discrepancies have a need to be resolved and some do not. The evidence must be considered in totality as a whole. I am able to accept some, all, or none of a witness's evidence. My failure to refer to any specific witness's evidence or document filed as an exhibit, or case law cited to me, does not mean that I have not considered that evidence or law in coming to my conclusions.
[113] The assessment of evidence that is required in coming to a conclusion in this case does not involve the choosing of one witness's evidence over the other. I am not required to choose between two competing versions of events. I am able to accept or reject some all or none of a witness's evidence.
[114] I have considered the case law submitted to me by both the Crown and the Defence, but it is not necessary to refer to it in my decision. I am aware of the approaches to be taken when assessing the evidence of very young children when they are testifying. They are not to be held to the exacting and critical standards of adults as their perception of time and events are understandably not as well developed or as well conveyed in testimony as one would expect of an adult.
[115] In R. v. R.W., [1992] 2 S.C.R. 122 (S.C.C) commencing at paragraph 23 McLachlin J. gives an insightful and binding series of statements on the assessment of children's evidence. She states:
23 Before turning to the particular errors alleged, I pause to consider the general question of how courts should approach the evidence of young children. The law affecting the evidence of children has undergone two major changes in recent years. The first is removal of the notion, found at common law and codified in legislation, that the evidence of children was inherently unreliable and therefore to be treated with special caution. Thus, for example, the requirement that a child's evidence be corroborated has been removed: s. 586 of the Criminal Code, R.S.C. 1970, c. C-34, which prohibited the conviction of a person on the uncorroborated evidence of a child testifying unsworn, was repealed by An Act to amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24, s. 15, effective January 1, 1988. Similar provisions of the Canada Evidence Act, R.S.C. 1970, c. E-10, and Young Offenders Act, S.C. 1980-81-82-83, c. 110, have also been eliminated. 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.
24 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.
25 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.
26 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 anew 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. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.
[116] In this case, there are no inconsistencies that inform my opinion on peripheral or even central matters when assessing the evidence of the defendant. He gave his evidence in a fairly straightforward manner and although I have some reservation about accepting it absolutely, I generally found him to be a witness whose testimony left me with a reasonable doubt on the central issue in this case, whether he touched the complainant in a sexually inappropriate manner and invited her to do so to him.
[117] I do, however, have serious concerns about the reliability of the complainant's evidence. At paragraph 61 of this judgment, which contains the excerpt of her cross-examination, this complainant states that it was the defendant's son who committed these acts against her and the defendant was not present.
[118] Although she then on re-examination returned to say that the incident with the son occurred on a different day and that it was the defendant who committed these offences on March 13, 2013, I found her to be very malleable to the suggestions of whatever counsel was examining her at the time and, thus, the reliability of her evidence was significantly compromised in my view.
[119] I simply cannot be convinced to the requisite high standard - that is the burden that the Crown bears - that the complainant's evidence is reliable.
[120] The defendant, although cross-examined vigorously, was not shaken in his evidence. He denied that he ever touched the complainant inappropriately in a sexual manner, nor did he invite her to touch him. I find it improbable that he would commit the offence in the living room where he could have been easily detected had his son walked out of his room.
[121] The complainant's demeanour when she was picked up by her mother and during the next day at school is not corroborative of a traumatic event occurring on March 13, 2014. She was happy and undisturbed. I am acutely aware that the law does not require that a victim of a sexual assault especially a victim of this age does not have to engage in a "hue and cry" to bolster their credibility. That engages stereotypes that are forbidden. However sometimes a distraught complainant can in some circumstances bolster the Crown's case. That was not present in this situation.
[122] Her mother's questioning of the complainant after the initial disclosure to her in the car was pointed and, as I find, may have led the complainant to agree to a series of statements that I have great difficulty in accepting as being reliable.
[123] Compounding this is the perplexing inactions of Officer Einboden and indeed the Crown when there was a failure to properly investigate an alternate suspect whose lawyer had communicated to the Crown that he wished to give an inculpatory statement to the police in August of 2014. As Mr. Stunt said to Officer Einboden, "How often does that happen?"
[124] The fact that the police did not investigate this and that Officer Einboden seemed to take the position that if Mr. O'Marra did not deliver his client to the police it was not worthy of investigation is to me disturbing. That a lawyer had said to the Crown that his client had volunteered to give an inculpatory statement to the police on a sexual assault investigation against a five-and-a-half-year-old child and they or the police did not bother to follow up on this because of "scheduling concerns" simply shocks me. This is a case where the police should have been knocking on the door requesting to speak to the defendant's son. Instead they did nothing.
[125] That Officer Einboden seemed to rely on the fact that the defendant had given an "inculpatory" statement to the police that never saw the light of day in this trial smacks of tunnel vision to me. She had completed her investigation and did not want to be bothered with small details such as another possible suspect.
[126] I am not certain when the Crown made the decision not to attempt to introduce the "inculpatory" statement by the defendant. It is very likely that they had not addressed that issue in July of 2014. But just days before the trial was to commence that decision would have no doubt been made. Perhaps if this had been communicated to the investigating officer who says she was not aware of this she may have been more diligent than she was. I find it odd that this was not discussed between the trial Crown and the officer in charge mere days before the trial was to commence when Ms. Frew knew full well what her trial strategy was. It appears from the cross-examination of Constable Einboden that she was not aware of this. I doubt that.
[127] Both the Crown and the police in this investigation seemed willing to put a five-and-a-half-year-old child (not to mention a defendant) through a painful and difficult trial in the hope that this matter would not ever arise. But arise it did. It arose on cross-examination at the hands of a competent and skilled counsel and it fatally wounded the Crown's case.
[128] I cannot find a defendant guilty beyond a reasonable doubt on the evidence of a malleable young witness who seemed to me willing to want to please the questioner, whether it is her mother, her investigator or Defence or Crown counsel.
[129] I must conclude by saying that I do have a suspicion that the defendant or his son or both may have abused this young girl. But that suspicion does not rise to the level of proof beyond a reasonable doubt.
[130] The tragedy of this case is that it proceeded without a full and proper investigation. From the outset I have found that the initial statement taken from the complainant was done poorly and ham-handedly, and that the failure to follow up on significant new information after that initial interview was inexcusable.
[131] The defendant's denials of improper conduct were not shaken in cross-examination. Although I did not totally believe him, and that I found some of his evidence questionable, he did succeed on the second stage of the W.D. analysis. His evidence left me with a reasonable doubt even though it was not "perfect". It does not have to be. In my view, what he testified to might be reasonably true.
[132] Couple that with my concerns about the complainant's reliability, I cannot do anything other than to acquit Mr. C. of the charges that he has faced.
4. CONCLUSION
[133] For the reasons given, the defendant will be found not guilty of the charges before me.
Released: December 2, 2015
Signed: "Justice Stephen D. Brown"