WARNING

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

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

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

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

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

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

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

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

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

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

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

Court Information

Ontario Court of Justice

Date: April 6, 2016

Court File No.: Toronto Region, Old City Hall - 4811 998 141501 0252 00

Between:

Her Majesty the Queen

— and —

F.G.

Before: Justice Kathleen J. Caldwell

Heard on: October 26-27, 2015; January 18-19, February 2, March 2, 2016

Reasons for Judgment released on: April 6, 2016

Counsel:

• Ms. Jill Witkin, Counsel for the Crown
• Mr. Cosmo Galluzzo, Counsel for the Defendant

Reasons for Judgment

Caldwell J.:

Introduction

[1] F.G. is charged with three sexual offences[1] involving Ms. I.P., his common-law wife's niece. The incident allegedly occurred around 2 am one morning in September 2014 while they were alone together in F.G.'s car.

The Surrounding Circumstances

[2] Ms. I.P. is fifteen years old and in a very good place in her life now, with a foster mother she clearly respects and trusts, and doing well in school.

[3] Back in 2014, however, life was very different for her. She was fourteen years old. There was a great deal of friction between her and her parents. She was very emotionally attached to her boyfriend who had his own troubles, including "police involvement". He was ultimately charged with abusing her physically. Her parents were attempting to prevent her from seeing him and this both angered and devastated her. Matters came to a head at the end of August when her parents told her that she could no longer live at home if she continued to see him so she chose to leave and live on the streets.

[4] Ms. I.P. had other problems with her parents prior to the issues revolving around her boyfriend. She had stolen money from her parents on a number of occasions and that led her father to install a video camera in their home to record her actions as she always denied the thefts when confronted by her parents. There were also other incidents of lying. For example, at the time she gave her video statement about these allegations, she was in pain given injuries to her nose that she suffered when her boyfriend assaulted her. She did not want him charged at the time so she told the police that she had fallen going up the stairs and smashed her nose.

[5] Her aunt felt sorry for Ms. I.P. and messaged her on Facebook, asking her to dinner. It was clear that her aunt identified with Ms. I.P. as she had her own troubled youth. After dinner, her aunt offered to have Ms. I.P. live with her provided certain rules were followed such as no drug use.

[6] Ms. I.P. stayed with her aunt for one week before she was kicked out. Her aunt saw texts that Ms. I.P. sent her boyfriend. In those texts, she talked to her boyfriend about doing the drug "molly" and she also told her boyfriend that F.G. had told her she had sweet lips. Her aunt confronted her, with F.G. present, about the texts and then kicked her out. Ostensibly it was the admitted drug use, in violation of the aunt's house rules, which led her aunt to kick Ms. I.P. out of her house.

The Allegations

[7] Ms. I.P. testified that partway through the week she stayed up late talking with F.G.. Her aunt had gone to bed and the children in the house were asleep. The two were talking about "life". F.G. then left the room briefly and returned with a baggie of cocaine. He convinced her to go to his car, a light grey GMC Suburban, which was parked in the apartment underground. They snorted the cocaine in the car in the underground and then drove to a nearby alley. It was at that point that he told her that her lips tasted like cherries and that he knew that because they shared cigarettes thus he tasted her lips from the cigarettes.

[8] In the alley, he attempted to kiss Ms. I.P. He then placed his hand down her pants, digitally penetrating her. He also encouraged her to perform fellatio, which she did, however that ended as he finally released her head as she tried to pull away. At some point he convinced her to anally penetrate him with her index finger.

[9] Ms. I.P. testified that she found all of these acts "disgusting" and that she participated because she was afraid of him, he had been drinking, and he was high on cocaine. I also note that he is considerably larger than her in physical size. In any event, the issue of consent is irrelevant given her age.

[10] Eventually matters ended and they returned to the apartment. At that point Ms. I.P. went to her room but she overheard a very heated argument between her aunt and F.G.. Her aunt was upset that they had gone out and demanded to know what had gone on. F.G. said that they had just gone out to get food at McDonald's. Her aunt never spoke to Ms. I.P. about the matter but F.G. had told Ms. I.P. to tell her aunt the McDonald's story if she was questioned.

[11] Ms. I.P. was the only witness for the Crown. Ms. I.P.'s aunt and F.G. testified for the defense. As will become clear as I move through my assessment of the witnesses' credibility and reliability, the aunt's evidence, when assessed against the very high standard of "beyond a reasonable doubt", played a very powerful role in my ultimate determination.

Assessment of the Witnesses' Evidence

Ms. I.P.'s Evidence

[12] There are reasons why I must be cautious of Ms. I.P.'s evidence.

[13] First, there is her history of dishonesty. It would be far too simplistic to simply dispense with her evidence on the basis of her dishonest comments and acts. Further, to do so would be to distort the realities of human behaviour. I suspect it would be difficult if not impossible to find an individual who has never lied about anything over the course of their lifetime. Simply because someone has lied on one occasion does not mean that they are lying on all occasions. The difficulty in this instance is that Ms. I.P.'s history of dishonesty, at least in the months preceding this alleged incident, is more extreme than the norm and thus this history must be one of the factors that I consider in making my final determination.

[14] Further, I am well aware of the complex issues that arise when disclosing incidents of both domestic and sexual violence. The fact that Ms. I.P. initially claimed that her nose injury stemmed from a fall rather than being caused by her boyfriend plays no significant role in my determination. Nor does her incremental disclosure – the fact that she initially omitted mentioning to the investigators that she had anally penetrated F.G. with her finger. I fully accept that she was trying to protect her boyfriend and her relationship with him in the first instance and that the second instance could have been more repulsive to her and thus that could be why the disclosure came out incrementally. It is the stealing from her parents and lying about the drug use that are more significant though, as I've already noted, they are not determinative.

[15] Secondly, there is the timing of the initial disclosure. I do not find it necessary to determine whether it happened right before her aunt kicked her out or right after. The point is that it occurred around that time when all concerned would have been aware that she could no longer continue living in her aunt's home. Her anger at that point could have provided a motivator to make false allegations. On the other hand, as pointed out by Ms. Witkin, it's at exactly that moment when she may have felt free to make truthful allegations as she had nothing to lose at that point. The difficulty is that I am not sure which of these two options applies. The timing of the disclosure leaves me with concerns when I assess it in light of the beyond a reasonable doubt standard of proof.

[16] On the other hand, Ms. I.P. commented on a number of details that add to her credibility. The comment about sweet lips and how it came about in relation to the cigarettes sounds truthful and I note that she repeated that comment to her boyfriend in a text before she came forward with her allegations. She described the lubricant that she said F.G. had her put on her finger before the anal penetration, the look of the lubricant, and where it was stored in the car. She was detailed about the cocaine use including how it was prepared and the $50 bill used to snort it.

[17] There is also the wine glass. There was a wine glass found near the scene that could corroborate Ms. I.P.'s version as she indicated he drank wine in the car in the alley. A glass was discovered near the scene but in a somewhat different location and two weeks later. I therefore find it difficult to draw much from the glass.

F.G.'s Evidence

[18] F.G.'s evidence did not impress me. It was relatively short as it was an outright denial and, as was pointed out by his counsel, Mr. Galluzzo, a denial is by necessity short as there is not much to say.

[19] The primary issue with F.G.'s evidence was his treatment of "the car evidence". A photo was taken of a car leaving the apartment's underground[2]. F.G. stated unequivocally that the car in the photo was not his car[3]. He based his conclusion on the fact that he could not tell the make or model of the car in the photo.

[20] Later in the trial a photo of F.G.'s car was entered as an exhibit. It was taken by the officer in charge on the last day of trial when she saw F.G. at his car which he parked directly behind the courthouse.

[21] There is no question that the cars in both photos are absolutely identical in appearance. It is possible that they are not exactly the same car given that no car is unique. Their appearances, however, are exactly the same in all respects – size, colour, shape, in all aspects. F.G.'s total rejection of any possibility that the car in the first photo looks like his car is very damaging to his credibility.

[22] Earlier, in assessing Ms. I.P.'s testimony, I said that one untruth does not lead automatically lead to a rejection of the totality of a witness's evidence. The impact of the untruthfulness depends upon the circumstances. In this case, I find that F.G.'s "car evidence" is of great import because it relates directly to evidence that is part of the allegations – the car is the place in which the entire event allegedly unfolded. Further, there are not the understandable explanations that are present in assessing Ms. I.P.'s incremental disclosure evidence.

Ms. I.P.'s Aunt's Evidence

[23] I do not find F.G.'s evidence credible. I do not reject Ms. I.P.'s evidence and am left finding that it may be true though I am left with some uncertainty for the reasons I outlined above. It is in this context that Ms. I.P.'s aunt's evidence becomes particularly important.

[24] I found her aunt to be an impressive witness. She's clearly a compassionate woman who was attempting to help her niece. Ms. Witkin put to her at the end of her testimony that she would find it easier to believe that her niece was lying than that her husband had sexually abused a teenager and she replied, "[n]o. This happened to me when I was younger, so it's not easier for me to believe that she is lying"[4]. I fully accept her evidence on this point and her own prior difficult experiences fit with her offer to assist her niece by taking her niece into her home. Further, I find that her credibility is enhanced by her comment to the investigators that someone she loves is lying, she is just not sure of whom. This fact also indicates that she is not someone who is blind to the possibility of her husband's guilt.

[25] I then turn to "the McDonald's evidence" and find that it takes on a much greater significance. Ms. I.P. testified that F.G. told her to tell her aunt that they had been at McDonald's if she was asked. She also said that her aunt and F.G. fought about why they were out in the early morning hours and that she heard him tell her aunt that they went to McDonald's. Ms. I.P.'s aunt testified that no such conversation happened. If it had happened, I highly doubt that her aunt would forget about it.

[26] Ms. Witkin in her submissions pointed out a strong motive for the aunt to suppress any such evidence. I have heard that Ms. I.P.'s aunt is a young woman, 30 years old. She has three children. One child has a chronic condition that requires constant monitoring and it is for this reason that she does not work outside the home. Money is clearly tight, F.G. is the sole financial provider and I have no doubt that life is often not easy and must be emotionally very difficult at times. I agree with Ms. Witkin that there is potentially a great deal of pressure on Ms. I.P.'s aunt to ensure that F.G. remains with the family for financial reasons quite aside from her emotional ties to him. I am sure that it would be devastating for her and for her children if he was convicted, lost his job, and served time in prison.

[27] On the other hand, as I outlined above, she was a very impressive witness. The evidence points to a willingness to be open minded. She testified that she too had been abused and thus would not "cover" for an abuser. I cannot reject her evidence. Further, if the McDonald's incident did not occur, then I am left with uncertainty regarding whether the entire incident occurred.

Conclusion

[28] It is for these reasons, when assessing my concerns regarding Ms. I.P.'s evidence and the very powerful evidence of the aunt, bearing in mind the very high standard of proof, beyond a reasonable doubt, that I find F.G. not guilty of all charges.

Released: April 6, 2016

Signed: Justice K.J. Caldwell

Footnotes

[1] Sexual assault, sexual interference, and invitation to sexual touching

[2] I did not allow the admission of any evidence about the time and date of the photo

[3] Transcript, Cross-Examination of F.G., January 19, 2016, pgs. 55, 57, 58.

[4] Transcript of Ms. I.P.'s Aunt's Cross-Examination, January 19, 2016, pg. 33.