Court Information
Ontario Court of Justice (East Region)
Between: Her Majesty the Queen v. A.G.
Before: Justice Robert N. Fournier – Ottawa, ON
Reasons for Judgment delivered: November 16th, 2015
Counsel
Ms. Meaghan Cunningham – for the Crown
Mr. Eric Grainger – for the Accused
Judgment
Fournier J.
[1] Charges and Factual Overview
In this case it is alleged that on or about the 16th day of August 2014, the accused did with a part of his body and for a sexual purpose, touch the body of a person under the age of sixteen years of age, contrary to s. 151 of the Criminal Code. And further that on that same day, he did commit a sexual assault contrary to s. 271 of the Criminal Code. What is most unfortunate is that the complainant is his grandson, born in 2006, such that on the date of the alleged offence, he would have been eight years old. The factual situation is not overly complicated, though ultimately the issue in this case is one of credibility. The Court will have to resort to the framework for credibility assessment enunciated in R. v. W(D).
In the course of his testimony the accused denied all allegations of wrongdoing in respect of his grandson. For his part the complainant who testified under promise to tell the truth, provided a more incriminating version of events.
[2] Initial Disclosure and Video Statement
Suffice it to say that once the complainant disclosed to his father, he was ultimately brought to the police station, where he provided a video statement. The date of this interview was August 18, 2014 beginning at 10:17 AM. Pursuant to the provisions of s. 486.2 this young complainant was allowed to testify from a remote TV room. He was questioned briefly surrounding the taping of his original interview and then the video was played. The intention of the Crown was to have this statement adopted by the witness and then tendered into evidence by virtue of the provisions in s. 715.1 of the Criminal Code.
As his mother is of Greek ancestry, the child has been in the habit of referring to his grandmother and grandfather as Yaya and Pappou respectively. He recalled that his family used to visit often at his grandparents' house, where he enjoyed the pool and hot tub as well as watching his favorite television shows. On occasion there would be "sleep-overs" on an air bed in his grandparents' room. The child described his usual Saturday routine watching TV shows, eating snacks and taking a shower prior to going to bed.
After preliminary questions to ease the child into more probing questions, the interviewing officer guided the complainant into the substance of his allegations. Asked why he was sitting in the "big important chair" the child explained he was about to tell the officer "an important, important, important, important thing". He conceded that he felt a "tiny bit ... in trouble" but did not feel "at fault really" in this affair. Denying feelings of "guilt", still he admitted to being a little "scared" telling his story.
All said and done, I am persuaded that this young witness was well aware of his moral obligation to be truthful. And I am of the view that during the course of these proceedings, he did his very best to tell the whole truth.
[3] Complainant's Video Statement – Initial Allegations
As for his video statement, the child's story began after dinner on the date in question, after his parents had left. As usual he went downstairs to watch his shows and a movie. He related that his grandfather came downstairs later and gave him a "bunch of massages" on his back and tummy, which he liked, as they were very good. At one point he alleged grandfather told him "to lie down on his belly" and then "he started doing stuff inappropriate". The child ultimately explained how his grandfather "licked each of his fingers in turn", before placing them in his butt. A relevant passage reads as follows:
"It means like he licked ... then he placed it on my butt for no reason. I don't know why ... then he does one finger, the thumb ... first. Then he goes through the second, the third, the fourth, the fifth, the sixth, the seventh, the eighth, the ninth, the tenth."
Asked by the officer whether "fingers go inside his bum", the child responds "yes" and eventually confirms with some uneasiness that the fingers were inserted in his "butt hole". Asked "what happened after that", the child suggested he actually told his grandfather to stop and the passage reads as follows:
"After that, a few times later I told him to stop so he stopped. Then he stopped, then he stopped for the rest of the day. After that, he still gave me a massage on the back ... instead of doing it on the butt. After that I went to wash it in the shower ... to clean it all up ... That was his first time doing it on the butt so sometimes he does on the back, sometimes I lay down on the back and he does here and there, belly ..."
[4] Further Details from Video Statement
At pages 23-24 of the transcript, the child went on to explain that massages usually occurred in the basement, sometimes in the presence of his cousin, sometimes when he and his grandpa are alone. He added that sometimes his grandma was upstairs talking with the rest of the adults. Pressed for more details, the child remembered he was watching a TV show called "SpongeBob" at the time of this incident. At pages 25 and seemingly out of the blue, the child went on to mention, that sometimes he watches "American's Funniest Home Videos" - and that's when he told his dad!
At pages 26-27 the child elaborated that it was during the show "SpongeBob" that this particular event occurred. Again he related as follows:
"... the first thing he did on the back. Then he did on the ... on the front. Then he went on the butt, then I told him to stop so he stop. So then I went to clean it off with water ..."
"... then in like the beginning or the middle (of the show) he stopped ... then while massaging and watching my shows he did it. He ... did a butt massage ... till then. Then a few points of him I don't really feel like ... I don't really feel like really good down there so I told him to stop."
At page 29 after some rambling repetition the child made the following statement:
"... that was his first time doing it so I told him to stop I think he was going to stop for the rest of his life."
[5] Continued Video Statement – Specific Details
At page 30 the child related how his grandfather told him to lie down and how he managed to get his finger in his bum, by forcing his hand inside his pants, which were still on. It appears he could see the accused licking his fingers and that he "could feel it ... it felt wet". Meanwhile his grandmother was upstairs and later, the child asked her to ready his shower but did not disclose the alleged assault. He only told his father the next day.
At page 32 when the officer asked specifically whether his grandfather had also massaged his penis, the child indicated in the affirmative and that this had happened before the "butt massage". At pages 33-34 of the statement, the child elaborated as follows:
"After that a few minutes it started to get annoyinger and annoyinger and annoyinger ... then I got ... started to fidget around ... he doesn't really ... I don't really like it so he stopped that...
He said okay when I tell him to stop ... he said I think he said ... I think he's not going to do it never again ... I don't know. He did ... I think he just said it in his head. He didn't told me. I think he just said it in his head." ... I don't know because he thinks it's not really ... he doesn't really like it so he says I'll stop for ever again ..."
As a trier of fact, I did not quite know what to make of that utterance. Clearly the child was experiencing difficulty in finding appropriate words to convey his thoughts, whatever they might have been. And so in that vein, the child's video statement continued for a time, in a somewhat ambiguous and disorganized fashion.
[6] Child's Testimony at Trial – Corrections to Video Statement
Ultimately having viewed and listened to his video, the child was asked if he endorsed or adopted the contents of his statement for the purposes of this proceeding. In a seemingly conscious effort to be totally honest, he volunteered that he had not told his grandfather "to stop" as his video would indicate. Similarly in the context of massages below the waist, the child conceded that the accused had not massaged his feet or his penis, as he had indicated to the officer. In fairness these concepts had essentially been suggested to this young witness, in the course of his video statement.
At trial he stated that this was simply not true, reiterating in his own words, that his grandfather had never massaged his penis below his waist! He also specified that he had not been asked to lie down but had done so on his own. Again contrary to what he said in the video, he reiterated that he had not asked the accused "to stop", suggesting instead that his grandfather stopped on his own. At a point when he felt uncomfortable, the child claimed he got up to go upstairs to wash.
However our young complainant insisted that as for the accused "licking his fingers and inserting them into his butt" - that had really happened! It was evident that the accused's insertion of fingers into his butt was not a concept this child fully understood. Again his comment at page 21 speaks loudly to that notion when he states: "then he placed it on my butt for no reason. I don't know why."
In closing the child noted that he enjoyed going to his grandparents' house, but doesn't go there now. In cross-examination counsel suggested to the boy, that his grandfather had spent no more than ten minutes in the basement with him that evening. The young witness did not adopt that idea. When it was suggested he was perhaps making up this story in order to deflect attention from himself, when his father was reprimanding him, the child did not endorse that notion either.
In cross-examination still, the child was asked if it was possible this reported incident never happened. Surprisingly his answer was "yes" but in the same breath, the child added "he's sure it happened". On re-examination by the Crown the child reiterated that on this date of trial, his memory was that this event had in fact taken place as he indicated!
[7] Evidence of the Complainant's Father – M.G.1
M.G.1 testified he and his wife N.1 were the child's parents, that they had lived in California for a time and returned to Ottawa where they had family. He confirmed that the accused A.G. and H.G. were the child's paternal grandparents. His brother M.G.2 continued to live in the grandparents' home. His other brother S. had a young child of his own named A. He related that the family would routinely get together on Saturdays at the grandparents' residence for hamburgers from early afternoon to early evening. Though it was not a regular occurrence, this witness confirmed that on occasion, his son would stay for a "sleep-over" with his grandparents.
M.G.1 related that while the defendant's drinking had not been problematic in the past, that summer or some months prior to these allegations, he had been "drinking heavily" and then "sleeping it off" during their visits. In fact he had brought this to his mother's attention but she didn't want to get involved. When he spoke directly to his father about it, suggesting his drinking was "interrupting the flow of their visits" it seems the latter merely commented that his son was "being pretty hard about it".
Thereafter M.G.1 and his family left for a three week vacation in Greece, returning on August 14th prior to their routine Saturday visit at the grandparents' home on August 16, 2014. Upon their arrival that day around 3:00 PM, his brother M.G.2 a recovering drug addict, was upstairs in his room as usual. Those in attendance had already started drinking "Cognac", reportedly the defendant's drink of choice. However this time there was no excessive drinking. Ultimately he and his wife left his parents' house around 6:30 PM to return home. As usual they expected the grandparents would return their son the next day. As it turns out they did so but a little later than usual around 11:00 AM. Other than that it was life as usual but that would soon change drastically!
[8] Disclosure of the Alleged Assault
M.G.1 then went on to describe how his son had come to "disclose" the alleged assault at the hands of his grandfather. He related that on Sunday (August 17th) around 7:00 PM, while watching TV downstairs at their house, he glanced over and observed his young son naked with his hand on his penis. Mr. M.G.1 explained that from his perspective, this was a "privacy issue" and that he attempted to reprimand his son, suggesting "he shouldn't be playing with himself" openly in this fashion.
True to his nature as he was apt to do, the complainant promptly retorted: "oh yeah ... well your dad did this to me". In passing Mr. M.G.1 also went on to explain, that his young son's personality is such that he believes the "rules apply evenly to everybody". By way of example he suggested that if he was to scold his son for spending too much time on an electronic device, then the latter would suggest his father do likewise and put his cell phone away. In short it was "tit for tat" where he and his son were concerned and he opined that invariably, his son was correct in his righteous assertions in the face of criticism or discipline.
And so it was that this young complainant came to spontaneously "disclose" his grandfather's sexual misconduct. Of course as the father of this young complainant, Mr. M.G.1 was very upset upon learning of these allegations. In examination he went on to explain that his son walked about naked at times but that he and his wife were always fully clothed and were trying to teach him to follow their example.
[9] Father's Investigation and Report to Police
Their child would not have had an opportunity to view pornography nor would he have seen his parents being intimate. He had been thought about "good touching" and "bad touching" and was able to bathe by himself without his parents' assistance. This concept of "fingers in bums" had never been broached at home. Wanting to "make sure" there was substance to these allegations, Mr. M.G.1 asked his young son to elaborate and claims the latter was able to explain both verbally and by gesture, how his grandfather had "licked ... and then inserted his fingers in his bum". The child confirmed that this was performed "under" and not "over" his underwear and that "it didn't hurt".
Persuaded that his son was telling the truth, Mr. M.G.1 went upstairs to consult with his wife. Reportedly he then contacted his brother S. urging him to attend at the defendant's residence before he did, for fear of what he might do in the "emotional and angry" state he found himself in at the time. Ultimately he arranged to contact the authorities in order to report the incident. Prior to attending at the police station, he explained to his son that what had happened to him was wrong, that Pappou was in trouble and that they would have to go to the authorities. He did not coach his son but did tell him it was important he tell the truth!
He added that generally his son has a pretty good memory and that his concept of the passing of time was commensurate with his age. He noted that prior to that date the family enjoyed a good relationship but now that everybody has been impacted by these events, there were mixed emotions and that all ties had been cut! Suffice it to say, that if the child's version of events were accepted and the grandfather's denial evidence rejected, there would obviously be cause to convict the accused. As for the evidence of Constable Haggerty, it serves to establish a valid context explaining how she came into contact with the father of the complainant. In my opinion, the issue of a young child's credibility and reliability is not impacted by the evidence of this officer.
[10] Evidence of the Accused – Background and General Denial
As for the evidence of the accused A.G., essentially what he advanced is a broad denial of culpability and ultimately it boils down to his word against the child's, in this unfortunate scenario. Born on July 26, 1938 this 77 year old man indicated that after graduation from grade 12, he had gone to work as a Lab Technician in the pulp and paper industry. Later he would find work in Postal Services and later with Ontario Housing until his retirement in 2001. He was married to H.G. for 52 years with whom he shares four children and two grandchildren. The couple has occupied the same home for some 42 years. His 44 year old son M.G.2, said to be a disabled schizophrenic, continues to live with them.
He confirmed that he and his wife were in the habit of hosting a Bar B Q on Saturdays, when the grandchildren could enjoy the swimming pool and spa in their backyard. His evidence was that on the date in question, M.G.1, his wife N.1 and their son N.2 all arrived around 3:00 PM, having just returned from a vacation in Greece. As well his other son S., his wife N.3 and their son A. arrived in turn around 3:30 PM. His recollection is that, in anticipation of their coming for supper, he had made sure "he had nothing to drink"! He claims that after dinner there was an altercation of sorts between M.G.1 & N.1 who left around 7:00 PM, allowing his grandson to indulge in a customary "sleep-over" at his grandparents. S. and family reportedly left later around 7:30 PM.
[11] Accused's Account of the Evening
For his part N.2 had found his way downstairs where he was watching TV. In the meantime A.G. indicated he and his spouse proceeded to "put the house in order". For his part he went to "close the pool & cover up the spa" and even "took the dog out" for a while. Thereafter he claims he sat in the living room for a time, before going upstairs for a shower. Afterwards it seems he waited for his wife H.G. to come down from taking her shower and then went downstairs to join N.2.
His recollection is that the two were alone together for no more than five minutes and that there was no "physical contact" whatsoever between the two. During that time according to the accused, his wife H.G. was in the kitchen "cleaning up" and his son M.G.2 came down briefly, to access his "junk food" in the fridge, as he was in the habit of doing. It seems the latter sat with them for a few minutes and then returned to his room upstairs.
Mr. M.G.1 explained that his son M.G.2 routinely comes down to the fridge ten times a day and that "he is always in the fridge". As for N.2 he elaborated, that the latter would normally go to bed around 8:30 PM but that before his bedtime, he would watch TV or play with his iPad. He also liked to play "with all the equipment" and some of the "musical instruments" and for that reason Mr. M.G.1 was "watching him". However it was his wife H.G. mostly, who would interact with N.2 sending him to take his shower and then to bed. His grandson did not have pajamas or nightwear as such but since he was in the habit of "wetting his bed", he wore a "special diaper" of sorts. Otherwise he would be all covered up with a blanket.
The accused opined that his wife spent no more than ten minutes in the shower herself and thereafter she had come downstairs to look after their grandson and keep him company as he watched his shows. He recalled him watching "SpongeBob" as well as a "movie". In chief Mr. M.G.1 did not recall "massaging" or "scratching N.2' back" for that matter, claiming that was not part of the "routine". As for "licking his fingers" and inserting them in his grandson's anus, he vehemently denied any such activity.
[12] Accused's Cross-Examination – Opportunity and Drinking
In essence his position was that he spent very little time alone in the basement with his grandson that evening. He insisted that his wife came to join them for a while and that his son M.G.2 who lives upstairs, "is always in the fridge downstairs" and that he too came down for a while that evening. In short he would have had little if any opportunity to perpetrate the alleged assault.
In the course of his cross-examination Mr. M.G.1 also elaborated on his state of health, alluding to his prescribed medication but denying any problem with alcohol consumption. He would not concede that his son M.G.1 had accused him of "drinking too much" suggesting no one had spoken to him directly about that. However he insinuated that his son had perhaps intervened "indirectly" in that he spoke to his mother H.G. expressing "concerns" about his "attitude when drinking". His perspective was that it was M.G.1 & his wife who perhaps drank too much on occasion.
Still in cross-examination, the Defendant alleged that on occasion, N.2 would walk about in the nude and urinate off the deck. For his part he professed there were occasions where he preferred "not to be there" in the company of M.G.1 & N.1 and that he would take a pill and sleep for a while. As for his drinking habits, he admitted to "drinking socially", wine with dinner for instance but that it was his son M.G.1 who brought "Cognac" to the house.
[13] Accused's Mental Health, Pornography, and Characterization of Grandson
He admitted to suffering from "depression" and "anxiety" for some 20 years, for which he was taking "Ativan" as prescribed for him. He claimed he would make it a "point not to drink" (alcoholic beverages) not out of concern for what M.G.1 thought, but in an effort to be a "good host" when the family came for dinner. Questioned on the subject of "pornography" he claimed he did not keep any but admitted to accessing some on his computer at times. His computer was kept upstairs in his bedroom where N.2 could not have access to it ever, according to the accused.
Mr. M.G.1 claimed he enjoyed a good "relationship" with M.G.1 & N.1 until these allegations came to light. He emphasized that the idea of N.2 spending the night had not been his idea but his wife's. In fact he claimed he didn't like having his grandson over to the house frequently. His view was that he was a child with "needs" and "behavioural problems", a "nudist" who would "urinate off the deck". In his opinion this child displayed "inappropriate conduct" for instance "placing a ball between his legs and motioning in a sexual way". In short, N.2 was "naked too much", he would "wet his bed" and "defecate in his diaper".
Mr. M.G.1 alluded to his son M.G.1 having "problems too", because he had been "abused". Pressed in cross-examination by the Crown, the accused would not agree that he gave N.2 a "massage" but admitted reluctantly to "rubbing his back" or "his feet" - not on a "regular basis" and only when this eight year old child asked him to do it. He claimed this was not something he "enjoyed" doing, insinuating he did it begrudgingly.
[14] Accused's Recollection of August 16th – Evasiveness and Inconsistency
Finally he conceded it was "possible" he had rubbed N.2' back on August 16, 2014. Pressed to recall the events of that evening once everyone had left and his grandson had stayed behind for his "sleep-over", the accused at first professed to have "short memory problems", perhaps due to his "medication". He also noted that English was his "second language" in an effort to explain his delay in responding to some of the Crown's questions.
Reluctantly he agreed he had been alone with his grandson in the basement for a period of time on August 16th. He recalled the show "SpongeBob" adding that his wife was present for the movie. Ultimately he admitted there may have been some "physical contact" and then finally claimed to remember "scratching the child's back". He said "I think so ..." but that nothing out of the ordinary happened on this occasion according to him.
Then he purported to remember "there was a situation in the living room", alluding to an argument between N.1 and M.G.1 culminating in the latter saying "fuck you" to his wife, which made everyone somewhat uncomfortable. As for his grandson N.2, he didn't recall any specific problems but heard he had "dropped him off" at home; but he claimed he didn't remember that specifically.
Questioned on the issue, the accused didn't recall if he had "slept later that day" (Sunday) because he had been drinking the evening before. And then he seemed to recall dropping the child off around 11:00 AM but didn't recall anything that would have caused N.2 to be "angry" with them. He recalled that N.2 had gone into the spa and then run into the house "all wet" as he didn't dry himself first. He recalled being upset with his grandson over that occurrence.
Finally he conceded that there is no way his fingers could have "accidentally" gone into N.2' bum on the date in question. In summary in terms of that evening, Mr. A.G. remembered spending some time alone with his grandson and admitted there might have been some "physical contact" such as "scratching his grandson's back". But other than an incident amongst adults in the kitchen that evening, he claims there was nothing out of the ordinary happening.
In my view he did go out of his way to make somewhat disparaging remarks about his grandson, to the effect that he was something of a "nudist" urinating off the deck, that "he was naked too much" around the house and that he would "wet his bed" when sleeping over. He conceded that on occasion, he would rub his grandson's back but only when asked to do so, as he was not exactly a "kids' person". He emphasized that this practice was not something he necessarily enjoyed.
[15] Evidence of the Accused's Wife – H.G.
Finally the accused's wife H.G. also testified and her evidence was generally corroborative of her husband's. As for her husband's alleged drinking problems, she didn't share her son's perspective, suggesting that while M.G.1 may have expressed "concerns", he was wrong about the Defendant having a substance abuse problem. She was clearly of the opinion that her husband was not a "drunk".
In terms of the allegations levelled against him, she insisted she never witnessed any inappropriate physical contact between her husband and her grandson. Specifically she never saw him rubbing their grandchild's back or feet. Furthermore she claimed the child never asked her to rub his back or feet either. In short any "physical contact" would have been normal and appropriate. She explained that in any event, her husband "was not in for kids".
On the evening in question she testified that at the time she joined her husband and grandson downstairs, there was nothing untoward going on. Their son M.G.2 might have dropped by and N.2 wanted a blanket. After his shower N.2 she recalls, went back downstairs to watch a movie. It was the next day when N.2 went into the spa and didn't dry himself off and so it was her husband who did it for him. Finally at the time they dropped him off at home the next day, N.2 was in a good mood according to her.
Her testimony was helpful in understanding the dynamics in this family and the context in which these allegations came to light. She commented on her grandson's sleep-overs and alluded to his "king's spot" in the basement, where he watched television. Her testimony in my view will neither make nor break this case. In the end as stated earlier, the factual situation is relatively straightforward. However in this instance, there are obvious guiding legal principles which will instruct my deliberations. I have reviewed the case law provided to me and found it helpful in reaching my ultimate decision.
Guiding Legal Principles
[16] Framework for Credibility Assessment
Obviously the framework outlined in R. v. W(D) will apply. Then there will be other considerations as well to be discussed later, in light of the child's testimony. Ultimately this Court will have to make findings of credibility accordingly.
As a starting point, the Defence suggests there is an "inherent improbability" that anything the complainant alleges even happened. For his part this 77 year old accused is said to be a respectable retired man, gainfully employed all of his life and now appearing before the Court, without a record or any history of sexual misconduct in his past. There is no indication he was anything but a devoted husband and attentive father during his many years of marriage. In short he is just not the kind of person who would commit such an offence to begin with.
Counsel for the defence suggests that the allegations levelled against this man are bizarre to say the least. Furthermore he argues that the time and location in this instance are such, as to present a minimal opportunity for the accused to perpetrate the crimes as charged, even if he were so inclined. It is noted that his wife was home and could be expected to join the accused and his grandson at any time without notice. Likewise the couple's son M.G.2, who lived in the matrimonial home, was in the habit of attending downstairs repeatedly and often, to get something to drink and eat out of the fridge. In short it would have been foolhardy for this accused to attempt such a brazen act of sexual impropriety.
Finally in the context of credibility, Counsel points to the significant discrepancies between the evidence our young complainant provided in the course of his video statement and the different version he provided at trial, suggesting he is not entirely reliable as a witness.
[17] Crown's Position on Credibility
The Crown of course recognizes that this case depends largely on credibility assessment and reminds the Court that such findings are not to be made in a vacuum. She suggests that the complainant is a reliable witness in spite of his tender age and that he should be believed. Clearly the notion of "inherent improbability" does not rest well with the prosecution. Their position is that it has proven beyond a reasonable doubt that the accused inserted his fingers into the complainant's bum as alleged and this based on the whole of the evidence.
Even though at trial, the child has not fully adopted his early video statement, in fact retracting certain significant elements of his earlier video statement, clearly he knows the difference between a lie and the truth. In the end he remains certain as to what happened to him, in that his grandfather licked his fingers and then inserted them into his bum. The Crown also pointed out that the manner in which the disclosure was made spontaneously to his father the next day, is an additional circumstantial guarantee of the reliability of this young person's testimony.
As well it was evident the child did not appreciate the sexual connotation of the act itself and at a loss to understand why his grandfather would even do this, as evidenced in his statement. Finally the prosecution pointed out that the child would have no motive to fabricate the allegations and that there was no animus towards his grandfather.
Legal Principles Regarding Child Witness Testimony
[18] Accommodated Approach to Child Witnesses
To begin with it is trite to say that our courts and for a long time now, have endorsed an "accommodated approach" if you will, with respect to the testimony received from a child witness. Mossip J. of the Ontario Superior Court recently articulated this notion as follows:
"There are considerations with respect to the testimony of a child witness that I must consider. That testimony has to be understood in the context of our everyday experience and common sense. The exactitude and detail of an adult's version of events may be missing from a child's recall as their world is experienced differently from adults."
However the concept certainly goes as far back as R. v. B.(G.) wherein Madam Justice Wilson endorsed the suggestion 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. She hastened to add however, that this is not to say the courts should not carefully assess the credibility of child witnesses or that the standard of proof must be lowered when dealing with children. Instead she was endorsing the proposition 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.
In that same case, she elaborated as follows:
"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 the 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."
Commenting in that same vein, Mossip J. stressed that consideration of a child's testimony cannot in any way lessen the standard of proof, citing in support, the position of Madam Justice McLachlin, in the case of R. v. W.R. wherein she wrote as follows:
"... 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 ... yet with regard to 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 the events to which she is testifying."
[19] Application of R. v. W(D) Framework to Child Testimony
R. v. A.S. is a case I found particularly helpful in my deliberations, in that it appears to be an application of the principles enunciated in R. v. W(D) but within the context of child testimony. Again Mossip J in a decision I cited just earlier, makes a summary reference to that precedent observing that:
"... the trial judge convicted the accused based primarily on the evidence of the young complainant. There were problems with some of her testimony and there were discrepancies in her testimony. The Court of Appeal noted that the trial judge addressed and discounted the issues raised by the defence regarding the credibility and reliability of the complainant's evidence and that based on his acceptance of her testimony on the core issue, he found her testimony to be compelling, reliable and credible."
In a very similar vein but in the context of R. v. W(D) I am also reminded of the approach endorsed by the Ontario Court of Appeal in the matter of R. v. J.J.R.D. as illustrated in the following passage:
"The trial judge's analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant's denial because stacked beside A.D.'s evidence and the evidence concerning the diary, the appellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence."
Going back to the case of R. v. A.T. Mossip J. also went on to quote a passage from the Court of Appeal's decision at paragraph 38 of that report and I reproduce a relevant passage as follows:
"The appellant objects that the trial judge effectively accepted the complainant's evidence uncritically based on her demeanour ... however the trial judge did not refer only to demeanour but treated it as confirmatory of his conclusion that the complainant's story reflected appropriate emotions and progression in her feelings. The trial judge was clearly prepared to overlook some of the problems with the complainant's evidence, essentially for the reasons set out in the quotation above, namely, that he accepted her evidence on the actual assaults and because he accepted that her conduct was consistent with her predicament in the house with her mother disposed to favour her father over her."
[20] Circumstantial Guarantees of Reliability
Reference was also made to the case of R. v. P.C.C. of particular interest to me, as it alluded to some of the factors a trial judge might look to, for sufficient circumstantial guarantee of trustworthiness. Some of those being, that young children do not generally have any knowledge of the type of sexual conduct attributed to the accused nor do they generally have the capacity to fabricate the explicit descriptions of the sexual conduct provided by a young complainant.
Another such factor is the manner in which a child discloses allegations of abuse and this would include the language used in making the disclosure and I would presume any accompanying gestures. This issue was addressed extensively by the Ontario Court of Appeal in the case of R. v. L.O.
Finally as I undertake an analysis of the evidence in this instance, I must remind myself that there is a significant difference between credibility and reliability and that both factors are of crucial importance as emphasized by Watt, J.A. in the case of R. v. H.C.
Application of Principles and Analysis
[21] Assessment of the Accused's Testimony
Applying all of the pertinent legal principles set out earlier, I now proceed with my assessment of the testimony of witnesses. Mindful of the defence submissions, I propose to start with the evidence of the accused himself. As observed earlier, his testimony effectively amounts to a broad or general denial of any wrongdoing.
As to his medical history, he acknowledged suffering from depression and anxiety for some 20 years, for which he had been prescribed "Ativan" to relieve those symptoms. Describing himself as a "social drinker" he denied abusing alcohol and objected to his son's assessment, that he had been "drinking heavily" as of late prior to these allegations. In apparent retaliation he suggested that it was his son who drank too much!
Initially he suggested spending very little time alone with his grandson, as he was busy closing the pool and covering up the spa not to mention walking the dog. His initial estimate of five minutes alone with the complainant was eventually expanded to perhaps ten minutes. At first he categorically denied any "physical contact" whatsoever with his grandson, let alone a "massage" of any sort. In fairness to him it appears he might have been drawing a distinction between a so-called "massage" and a simple "back-rub".
We will recall that in cross-examination he was asked if it was possible he might have "scratched" or "rubbed" N.2' back. At first he conceded that was a "possibility" though he did not recall doing so. Later as the Crown persisted, he ultimately conceded (though reluctantly) that he now remembered rubbing N.2' back. However he was quick to elaborate that this was not something he would indulge in on a "regular basis" and then only at the latter's "request", for it wasn't his idea nor something he particularly enjoyed participating in.
[22] Credibility Assessment of the Accused
At one point during his cross-examination, Mr. A.G. became noticeably "hesitant" and somewhat "evasive" in his responses to the Crown's questions. Clearly he too caught himself in that process, as he offered explanations that English was his "second language" presumably explaining why perhaps, he was not fully understanding the questions being asked of him. However as I recall, the questions asked were not so intricate, as to cause a man who had worked in the public sector for so many years, to be as confused as he claimed.
In addition Mr. A.G. professed to have "short memory problems" but again, as the prosecution pressed on for answers, he seemed to overcome these difficulties and to recover his memory skills somehow in order to respond. His "poor memory" even extended to the next day, when he first claimed he had "heard" he had dropped off N.2 at his parents' home. Of course a short time later, he would remember dropping the child off around 11:00 AM without incident, adding that he knew of no reason why N.2 would have been upset or angry with his grandparents.
Overall his demeanour was such that in this Court's opinion, much of his memory problems were feigned and aimed at deflecting the questions being posed to him by Counsel for the Crown. Finally I was both concerned and at a loss to understand why a caring grandfather would make such disparaging remarks about his grandson. Whether these were words spoken out of frustration or intended to somehow diminish the reliability and credibility of the complainant's testimony, would be mere speculation.
Of course his spouse of many years generally spoke highly of her husband and was obviously supportive to the extent she could be in the circumstances. However her perspective was of no assistance to me in terms of his credibility and reliability as a witness. While we all recognize that an accused is under no obligation to testify or for that matter prove his innocence, surely it is not too much to expect that a defendant who elects to do so under oath, will speak the truth and nothing but the truth. Yet in this instance, I would not be able to find that Mr. A.G. was a forthright nor intellectually honest witness. In fact as I assess his overall testimony, I am left with a great deal of skepticism as to his reliability!
[23] Assessment of the Child Witness – General Principles
On the other side of the proverbial coin, the testimony of a child witness presents with challenges of its own. However his evidence must be assessed without assumptions that the evidence of children is inherently unreliable or to be treated with special caution as it was in the distant past. As more contemporary considerations dictate, we must avoid rigid stereotypes and instead adopt a common sense approach, as we assess such evidence in the context of the age of the child witness.
As evidenced in this case, there will be inconsistencies and contradictions, flaws as Madam Justice Wilson has referred to them, which cannot be given the same effect as those attributed to an adult. However a trier of fact will be well advised to look for confirmatory evidence and be on the lookout for circumstantial guarantees of reliability in such instances. Finally it is equally permissible to consider the presence or lack of a motive to fabricate.
Instructed by those principles, I categorically find that in this case, our young complainant had no motive to fabricate the allegations and that there was no animus whatsoever towards grandfather. In this instance we will recall that the child's video-recorded statement was admitted pursuant to s. 715.1 of the Criminal Code. As such it is to be treated as part of the in-court testimony, as if the child were giving the statements on the videotape in open court.
In that context, I am duty bound to assess his testimony including internal consistencies as well as inconsistencies. For as the Court observed in R. v. L.O. to treat the video statement solely as a prior statement distinct from his testimony would defeat the purpose of s. 715.1.
[24] Child's Corrections to Video Statement – Reliability
We will recall that in this instance, when the time came to have the complainant endorse or adopt his earlier videotaped statement, there was no need on either side, to confront him with discrepancies or inconsistencies. Unprompted it was he, who took the initiative to indicate certain assertions made in the course of that initial interview, were not accurate or true. In fact he readily identified and admitted that which was "simply not true".
Specifically he made it very clear - he had not been asked to lie down (doing so on his own) and had not told his grandfather to stop, (he stopping on his own). In fact the accused had not massaged his penis or his feet and the child reiterated in no uncertain terms, that these things he had said earlier "were simply not true".
Nevertheless, as to the accused's licking and then inserting his fingers into his bum, this young complainant remained steadfast in cross-examination - that had really happened and repeated in re-examination, that he was "sure it happened" as alleged in his video statement. Clearly our young witness appreciated the difference between a falsehood and the truth and his actions reflected an appreciation for the moral obligation to tell the truth.
We will also recall that when Counsel asked this child whether it was possible this whole incident had not happened at all, surprisingly our witness acknowledged that possibility but then promptly added that nevertheless, he was sure it had happened. In my view this was a clear indication that this child had the intellectual capacity to understand that practically anything is possible in this world as most reasonable adults will concede. Yet he was not swayed away from his conviction and firm belief, that in reality, the assault had indeed occurred as he described.
I find that the child's assertion in the face of a confrontational suggestion by Counsel, constitutes "confirmatory evidence" and a "circumstantial guarantee of reliability" in respect of the child's testimony. Furthermore, I conclude that after he had clearly distanced himself from those elements in his earlier statement which were "simply not true", the child remained "absolutely consistent" with the central feature of his allegations that his grandfather had "licked and then inserted his fingers into his bum".
[25] Circumstantial Guarantees of Reliability – Language and Knowledge
In turn that "consistency" goes a long way in my opinion, to counter and at least mitigate the defence claim that he was not a reliable or credible witness.
Another area where I find a "circumstantial guarantee of reliability" is in the "manner and the language" in which the child related the assault, during his videotaped statement in the presence of an officer. The awkward and at times disjointed language reproduced in paragraphs 3-5 of my judgment, in my view clearly illustrates the child's difficulty in finding the words to articulate what had happened to him. Yet in his own unique and genuine way, he found a way to communicate his predicament. His difficulty was commensurate with his age and his lack of appreciation for the sexual nature of his grandfather's actions.
It is abundantly clear from the child's statement "... then he placed it on my butt for no reason ... I don't know why ..." that he had no appreciation that such actions constituted a "sexual activity". And rightfully so, for this eight year old ought not know anything about this sort of activity, thus constituting yet another "circumstantial guarantee of reliability".
As part of his defence, Counsel speaks of "inherent improbability" and suggests the allegations levelled against his client are "bizarre" suggesting they should not be believed. While such occurrences are hopefully few and far between, the very fact I have been provided with Mossip J.'s decision in R. v. A.T. dealing with a very similar scenario, appears to at least take our case out of the "bizarre" category.
The only person who could be expected to classify it as such or have difficulty wrapping his mind around the notion of "fingers inserted in his bum" might well be our complainant in this instance. We will recall that our child witness described in fairly unique and detailed fashion, how his grandfather was "licking his fingers in turn before inserting them into his butt ... the thumb first, then he goes through the second, the third, the fourth, the fifth, the sixth, the seventh, the eighth, the ninth, the tenth ..."
I find it difficult to even speculate, how a child his age without sexual knowledge, could conceivably fabricate let alone describe such deviant behaviour, unless he had actually experienced it as he alleges. Therein lies another "circumstantial guarantee of reliability" in my view. Finally the testimony of the child's father constitutes the final straw in the way of "confirmatory evidence", that the complainant is a credible and reliable witness. There is uncontroverted evidence that the disclosure he made to his father was spontaneous and came across as completely genuine, once the latter satisfied himself there was substance to his son's allegations.
[26] Conclusion – Finding of Guilt
In conclusion as I assess the child's testimony in this instance, none of the concerns raised by the defence detract from my acceptance of his evidence. I find him to be a reliable and credible witness, on the core evidence, that his grandfather licked his fingers in turn before inserting them in the child's bum as he alleged. Even if I were to accept the accused's testimony, that he only spent five to ten minutes alone in the company of his grandson, I find this afforded ample time and opportunity for the accused to perpetrate the acts complained of. Clearly I do not share Counsel's perspective that time and location in this instance, presented a minimal opportunity for the accused to assault his grandson.
I find the details of the assault provided by the complainant to be compelling, especially given his young age and obvious lack of sufficient sexual knowledge to appreciate that what his grandfather was inflicting on him, constituted a sexual assault. Finally there was a complete absence of motive to fabricate and absolutely no animus towards his grandfather.
Following the reasoning adopted by the Ontario Court of Appeal in R. v. J.J.R.D. I reject the accused's denial. Because "stacked beside the complainant's evidence and despite the absence of any obvious flaws" beyond his "hesitant" and "evasive" demeanour alluded to earlier, the accused's evidence did not leave me with a reasonable doubt. In closing a passage from the Ontario Court of Appeal's decision cited just earlier bears repeating:
"An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence."
Ultimately and for the reasons set out herein, I am satisfied beyond a reasonable doubt that Mr. A.G. is guilty of the offences charged in the information before this Court.
Robert N. Fournier J.
Ontario Court of Justice Ottawa, ON