WARNING
The Court orders that no information is to be published regarding this trial that would identify the young persons involved in this proceeding. As a result, with the exception of the names of counsel, no other name that is mentioned in these reasons may be published, nor may any address referenced be published, nor may the name of any school referenced herein be published. This order extends to any such similar information contained in any exhibits filed at trial.
This is ordered in accordance with the Youth Criminal Justice Act and is subject to:
Section 110(1): Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
Section 111(1): Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
Section 138(1): Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985:
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Court Information
Date: 2016-06-24
Court File No.: Brampton/14-Y954
Ontario Court of Justice
Youth Justice Court
Parties
Between:
Her Majesty the Queen
— AND —
V.R.C.
Before the Court
Justice James Stribopoulos
Heard on: January 12, July 22, August 24, 25, 26, November 6, December 17, 2015, and April 14, 2016
Reasons for Judgment released: June 24, 2016
Counsel:
- Ms. H. Gluzman for the Crown
- Mr. B. Fedunchak for the young person
STRIBOPOULOS J.:
Introduction
[1] The complainant, H.Q. (now 16 years old) alleges that some years ago her older half-brother, V.R.C. (now 21 years old), sexually assaulted her on a number of occasions.
[2] The allegations arose in the midst of a custody dispute between H.'s mother (D.Q.) and H.'s father (A.Q.). V. is D.'s son from an earlier relationship. During their marriage, D. and A. had four children: Z., H., A. Jr., and H2. The relationship between D. and A. was tumultuous. The couple separated in 2007. After the separation, V. remained with his mother, as did H. and H2. In contrast, Z. and A. Jr. moved in with their father.
[3] In September of 2013, conflict between H. and V., and H. and her mother, resulted in H. leaving her mother's home and moving in with her father and his fiancé. At that point, A. had custody of the three oldest children from his relationship with D. and they were sharing custody of their youngest daughter, H2, who was just six-years old.
[4] Not long thereafter, a dispute apparently emerged between D. and A. regarding who should have custody of H2. This resulted in family court proceedings. It was against the backdrop of that litigation, in the late Spring of 2014, that the allegations that are the subject matter of this proceeding emerged.
[5] According to H., in the lead up to a family court hearing that would decide which parent would have custody of H2, she was asked by her father (who made a similar request of all of his older children) to prepare an affidavit for the judge who would be deciding the matter. H. explained her decision to finally reveal V.'s abuse then as the result of her concern about her little sister remaining in the same house as V. and potentially suffering the same fate. In her affidavit, she revealed that V. had "sexually assaulted" her. Her father's fiancé questioned her about this, which she explained led to her finally revealing what V. had done. A decision was then made to go to the police. H. testified that this was her decision alone.
[6] On June 20, 2014, H. visited the police along with her father and his fiancé. Her complaint led to a police investigation that culminated in the charges before this court. By way of information, it is alleged that V.R.C., a young person within the meaning of the Youth Criminal Justice Act:
(1) during a period commencing July ##, 2006 and ending September 7, 2009, at the City of Brampton and elsewhere in the Province of Ontario did commit a sexual assault on H. Q. contrary to Section 271 of the Criminal Code of Canada;
(2) AND FURTHER THAT V. R. C. during a period commencing July ##, 2006 and ending September 7, 2009, at the City of Brampton in the said region, did have sexual intercourse with H. Q. while knowing that H. Q. was his half sister contrary to section 155(2) of the Criminal Code of Canada.
[7] The date of July ##, 2006 is rather important to this proceeding. That was the date V. turned twelve, which is the age of criminal responsibility in Canada. As a result, for the Crown to succeed in this prosecution, not only must it prove the substantive allegations beyond a reasonable doubt, it must also establish, to the requisite standard, that the events at issue took place after July ##, 2006. I will turn next to the evidence before returning to the law and my analysis in relation to both the timing issue and then the substantive allegations.
Evidence at Trial
[8] During her testimony H. described a number of incidents of sexual abuse by V. that took place when she was "younger". I will review the evidence regarding her allegations in the order that H. testified the events took place. I will also reference some of the evidence of the other witnesses who testified at trial, to the extent that such testimony was relevant to H.'s allegations.
First Incident - Sexual Assault
[9] H.'s first memory of being assaulted dates back to when the family was living in a house at ### X X X, in the City of Brampton, before her parents separated. She was unable to recall if H2, her youngest sister, had been born yet. (H2 was born on XX ##, 2007.) She testified that this first incident took place as she was entering the second grade, when she was just seven years old. At the time she was attending X X Public School. Beyond that, however, she was unable to remember the season or any other temporal landmarks that would assist her in identifying any more precisely when this first incident of abuse occurred.
[10] H. testified that one evening, just after her father put her to bed, V. emerged from her bedroom closet. During her direct evidence, H. testified that while she was lying in bed, V. leaned over the bed, pulled down the sheets, lifted up her nightgown and placed one of his hands beneath her underwear, touched her vaginal area and penetrated her with his fingers.
[11] On cross-examination, six-months after her direct testimony was completed, H. struggled to remember some of the details of the first assault as she had originally described them in her direct evidence. For example, she was unable to remember whether she was lying on her back, on her side, or on her stomach during the first assault. She was also unable to recall whether or not V. had actually been on the bed with her. When asked during cross-examination whether or not V. had been wearing any clothes during this first assault, H. testified that she did not remember.
[12] H.'s evidence during cross-examination regarding the first assault also varied on some material issues from her direct testimony. Although she had testified confidently in direct evidence that she remembered V. only touching her with one of his hands, she was equally confident during cross-examination that he had actually touched her with both his hands. Further, although she testified in direct that he had digitally penetrated her during the first assault, during cross-examination she insisted that there was only rubbing of her vaginal area and no penetration.
[13] H. testified that this first sexual assault lasted about "five minutes", and ended when her older brother Z. entered her bedroom. By that point, V. was not touching her; he was just standing beside her bed. However, she testified that Z. was "very shocked" by what he saw and asked them "what was going on?" H. testified that neither of them responded to Z.'s question, and that V. immediately left the bedroom. In her statement to police, however, H. said that before leaving the room V. responded to Z., telling him that he was just saying goodnight. H. testified that after V. left, Z. came into her bed and slept with her that evening. Although Z. testified at trial, he did not recall ever entering H.'s bedroom to find V. in her room. He also denied ever sleeping in H.'s bed.
Second Incident - Sexual Assault Involving Intercourse
[14] H. testified regarding a second incident, which she described as taking place within a week of the first sexual assault, while she was still in the second grade. Again, she could not remember if H2, her younger sister, had been born by then, but she was confident that the family was still living at ### X X X at the time. She initially could not recall where in the house the sexual assault had taken place. Later in her direct evidence, however, she testified that this second incident had taken place in her bedroom, in the morning, just shortly after she woke up.
[15] With respect to the details of the second sexual assault, H. testified that V. came into her bedroom, removed his boxer shorts, pushed up her nightgown and then pulled down her underwear. She recalled V. then spitting onto his penis before inserting it into her vagina. When asked about their physical positioning as this took place, she testified that they were both standing up at the time.
[16] During cross-examination, however, H. was again unable to remember a number of the material details, including whether the incident took place during the day or in evening, their location in the home, and their physical positioning. When pressed for details, she said, "I remember V. sticking his penis in my vagina. That's all I remember. That it was uncomfortable and it hurt and it was scary." When her earlier testimony from direct-examination was put to her, H. once again testified that this first act of intercourse had taken place in her bedroom, in the morning, and also said, "I think I was standing up." When asked how V. was able to insert his penis into her while they were standing up, given that he would have been much taller than her, she replied, "I don't remember."
[17] Although H. could not recall whether V. had said anything to her during the first incident of intercourse, she testified that whenever he assaulted her he would tell her to be quiet and not to tell anyone. He also warned her that if she said anything she would be blamed and get into trouble. H. explained that she did not tell anyone at the time what V. was doing because she was afraid.
[18] H. testified that V. had intercourse with her on a few occasions after this first incident and that each of these occurrences lasted about "five minutes". During each, she asked him to stop, but he simply ignored her requests. She testified that these incidents took place either at times when her parents were busy elsewhere in the home or when they were not home.
Third Incident - Sexual Assault Involving Intercourse
[19] H. initially testified that the second incident of intercourse took place while she was still in the second grade. She testified that by then she believed that her younger sister H2 had been born. (Again, H2's date of birth is XX ##, 2007). This incident took place while she and V. were alone in the basement of the family home. Her father was upstairs cooking dinner and her mother was not home. On this occasion, Z. came into the basement just as V. was pulling up his pants. Z. responded by asking, "what was going on?" V. did not answer him. Z. became mad and pushed V. H. could not remember if V. did anything in response. Although H. testified there was a couch in the basement, when specifically asked if it had any significance to her allegations she replied that she could not remember.
[20] During cross-examination, H. found it difficult to recall very much about this incident beyond the fact that it had taken place in the basement and that Z. had arrived at some point and became upset. For example, she could not recall where in the basement this incident had taken place, nor could she remember anything about the mechanics of this assault, for example if she and V. were standing, sitting or lying down at the time. She was also unable to remember whether or not Z. had arrived while the assault was still taking place or only after it was complete. Finally, in contrast to the certainty she had expressed during her testimony in direct evidence, during cross-examination H. conceded that she could not remember what grade she was in when this incident in the basement had taken place.
[21] The Crown also called Z. as a witness. He testified about an incident when he had been playing with H. beneath a futon in the basement of their house at ### X X. He was rather unsure of when this had taken place. He testified that H. climbed out from under the futon, while he remained beneath it. At some point, V. had arrived in the basement. He was either watching television or playing video games. Z. testified that V. was present for about 10 to 15 seconds before he emerged from underneath the futon. When he did, Z. testified that he saw H. sitting on the futon, while V. was standing in front of her and was in the process of pulling down his pants right in front of her face. Z. testified that he pushed V. onto the futon. They struggled for a brief period. They were yelling, and this caused their mother to come downstairs. One of them told their mother what had taken place. According to Z., his mother appeared scared and asked them not to tell their father. She offered to buy Z. a certain kind of game card if he did not mention what happened to his father.
[22] In the statement that he gave to police, Z. failed to mention that H. was seated on the futon in front of V. He also essentially said that when he came out from under the futon, H. was walking away just as V. was in the process of undoing his pants. Z. testified that he had simply misspoken during his police statement; he stood by the testimony he gave in court.
[23] H.'s mother, D. Q., was called as a witness by the defence. During cross-examination, she denied that an incident of the kind described by H. and Z. had ever taken place. This included rejecting the suggestion that she had told the children not to tell A. about what happened and bribed Z. with game cards to buy his silence.
Revelation at Gage Park
[24] H. initially testified that within a day or two of the sexual assault in the basement, while they were at Gage Park, she told her mother what V. had been doing to her. H. testified that she was crying as she shared this information with her mother. According to H., her mother was not receptive to hearing what she was saying and responded by telling H. that she was lying. H. estimated that the conversation only lasted a couple of minutes. During cross-examination, however, H. was far from certain about when this conversation had taken place relative to the various incidents of intercourse that she described during her evidence.
[25] D. also testified regarding H.'s claim about their conversation at Gage Park. Although she acknowledged that while the family lived at ### X X she routinely took the children to that park, she denied ever having a conversation with H. there, or at any other time, in which H. reported that V. had raped her.
[26] D. maintained that had H. told her that V. had done something of that nature, she would have called the police. In that regard, D. referenced an incident involving V. throwing a hot bowl of soup at H. and twisting her arm. On that occasion, she testified that she did not hesitate to call the police on V. This had resulted in V. being arrested, charged and required to move out of D.'s home, where H. was living at the time. D. also testified that she herself had been the victim of sexual violence by a family member, and cited this as a further reason why if she had been told something like that, she would never have counseled H. to keep quiet.
Fourth Incident - Sexual Assault Involving Intercourse
[27] H. also testified regarding a third incident of intercourse, which she initially testified took place within two days of the incident in the basement. She testified in direct that, "I remember that he just did the same thing". She elaborated that it was daytime and she was in her bedroom. Her mother was elsewhere in the house cleaning, while her brothers were in their room playing. She could not recall if her father was home. Initially, at least, she was unable to remember if H2 had been born by then but later in her direct-evidence she remembered that she had been. In cross-examination, however, she acknowledged that she did not know what grade she was in at the time.
[28] H. testified in direct-examination that during this third incident in her bedroom, her mother walked in on them and asked what they were doing. H. was lying on her bed. She could not recall if V. had his pants on or not. H. testified that she froze when her mother entered the room, and that V. responded by indicating that nothing was going on. She testified that her mother began yelling at her and said that it was her fault. During cross-examination, H. testified that she and V. were actually in the midst of intercourse when her mother entered the bedroom and interrupted them.
[29] H. testified that after discovering them, her mother spoke to the two of them. She testified that her mother said that if her father asked about what had happened to tell him that it was "just touching". In the aftermath of that, H. was unable to recall whether or not she had actually spoken to her father about this. H. testified to remembering a conversation during which her mother told her that she had discussed what had happened with her father, and reminded H. that if her father raised it with her to say that it was only touching.
[30] D. testified that back in 2003, when V. and H. would have been just nine and four years old, respectively, she walked in on them when both had their pants down. D. testified that she remembered that this took place close in time to a visit by her sister, A2., who was living in Vancouver at that time. Based on a relatively recent conversation with her sister, who is apparently fastidious about keeping records, she concluded that her sister's visit had taken place in 2003. As a result, D.'s evidence regarding when this event occurred is essentially premised on inadmissible hearsay. In June 2014, D. had told police, presumably before she had spoken to her sister, that she thought this incident had taken place when V. was around twelve or eleven, and H. was eight or seven. When she spoke to police, D. did not know that twelve is the age of criminal responsibility in Canada; she acknowledged being aware of this at the time of her testimony.
[31] D. testified that she viewed this incident as "just kid stuff". She testified that the children were both punished, although she retreated from that somewhat indicating that H. was not in trouble for this but V. was (presumably because he was older and was the one who should have known better).
Fifth Incident - Sexual Assault Involving Intercourse
[32] There was also some evidence to suggest a fourth incident of sexual assault involving intercourse. Beyond testifying that her mother was home at the time, H. was at a loss to provide much by way of detail in relation to this allegation. In that regard, she testified, "I don't know for every one what – specifically where we were, like how we were positioned or what he was doing or what I was doing or whose hand are where and stuff like that." As a result, in relation to this fourth incident she was unable to recall the time of day, the location in the home where it occurred, or anything about the mechanics of the assault, like whether or not they were seated, lying down, or standing at the time, or how the assault came to an end.
Sixth Incident - Sexual Assault at Wasaga Beach
[33] During her testimony, H. also described an incident that took place during a family trip to Wasaga Beach. When first asked whether something happened at the beach, she responded, "My dad said that when we went to the beach, he saw V. grab …". Her answer was interrupted before she could finish her sentence because it appeared she was about to give hearsay testimony. After the interruption, when asked specifically to describe anything that she remembered happening in her own words, she testified that V. had grabbed her bum once while they were in the water together at Wasaga Beach. H. was unable to provide much more by way of detail regarding this incident beyond indicating that her parents somehow knew about it and that they had a discussion about what had taken place.
[34] H. could not recall if she had been responsible for telling her parents about what V. had done to her while they were in the water at Wasaga Beach. That said, she did have some recollection of speaking to both her parents about it at some point afterwards. At least in relation to her father, H. testified that the only thing she discussed with him at that time was the bum touching incident in the water at Wasaga Beach. Z. also remembered his parents talking about an incident at Wasaga Beach, but he was unable to recall how old he was when those discussions took place.
[35] In terms of the timing of this incident, H. remembered that it was summertime but she was unable recollect what grade she was going to be entering that next school year. However, she did recall each of her siblings being present, including her youngest sister H2 (who was born in 2007). During her direct-examination, H. testified with some confidence that the incident at Wasaga Beach had taken place after the four incidents of intercourse that she had described earlier in her evidence. She initially resiled from this during cross-examination, testifying that she could not remember if it had taken place before or afterwards. Ultimately, however, she affirmed the evidence she initially gave on this question – that the incident at Wasaga Beach had taken place after the incidents of intercourse – but she was unable to say how long afterwards.
[36] D. also testified regarding the bum touching incident at Wasaga Beach. In terms of timing, her evidence was that it had taken place within a week of the incident when she had discovered V. and H. together with their pants down. As a result, like that incident, she testified that it had taken place in 2003. She testified that her sister, A2., and her sister's husband, were also present. H2 had not been born yet. D.'s evidence regarding the timing of the Wasaga Beach incident was also contingent on the same relatively recent conversation with her sister regarding her travel records and the timing of her visit to Toronto from Vancouver. In other words, her "recollection" of the date was essentially based on hearsay.
[37] According to D., V. and H. had swum out too far and she called for them to come back to shore. When they did, D. questioned them about what they were doing so far out. The explanation she received was that V. had asked to touch H.'s bum. According to D., she and A. became very upset with V. A. was screaming, crying and swearing. A. said to V., "What are you fucking sick? What the fuck is wrong with you? Like do you have mental issues? Do you need to be locked up?" To which V., who was crying at the time, responded, "I don't know, I don't know." D. testified that this was an overreaction, so much so that her sister was disgusted by their behaviour and stopped talking to her as a result. Although A. raised the possibility of getting V. counseling at the time, that did not happen. D. testified, "I thought they were just kids being kids."
[38] During cross-examination, D. essentially conceded that she has no independent recollection of the year in which the Wasaga Beach visit took place. That said, she insisted that H. was very young at the time. She rejected the suggestion that the events described were inconsistent with H. being at a relatively younger age because that would be incompatible with her being allowed to go so far out in the water. In that regard, she noted that because of sand bars at Wasaga Beach, you can travel some distance from shore while remaining in relatively shallow waters. She also noted that H. was with other children at the time and wearing a life jacket.
[39] D. was also challenged during cross-examination with the fact that the extreme reaction to V.'s conduct by her and A. was incompatible with him only being nine years old at the time and more consistent with him being a teenager. She disagreed with that suggestion, explaining that their response was so sever because it had been the second incident of this nature within a week (the first being the incident where D. walked in on V. and H. when they both had their pants off).
[40] M. H. also testified at trial. She is V. and H.'s maternal grandmother. V. has been living with her since he was arrested and charged with the offences before this court. She gave evidence that within a couple of days of the incident at Wasaga Beach, her daughter A2 told her about what had happened. She also spoke to D. about it a short time thereafter. According to her, these conversations took place in 2003. During cross-examination, Ms. H. acknowledged discussing the timing of this incident with her daughter A2 after V. was charged. Despite this, she denied that her recollection of the year depended upon information provided to her by A2. Rather, she also referenced the fact that that was an especially bad year for her family for other reasons. In that regard, she testified that was the same year her husband was seriously injured in a tractor accident. It was also the year that she was nursing her terminally ill mother-in-law, who ultimately passed away the following year, in 2004.
Seventh Incident - Sexual Assault at Innisfil
[41] H. also testified regarding a further incident that occurred when she was older, "around" age ten. It was summertime. She was unable to say if it took place before or after her birthday (which is in late July), or the grade she had just completed or was about to enter into. Later in her evidence, however, she testified that, by the time of this event, she had already celebrated her tenth birthday. During cross-examination, H. testified that these events had taken place within a year or two of the last sexual assault involving intercourse.
[42] The incident took place at a cottage that her mother had purchased in Innisfil. In direct evidence, H. testified that she was at that cottage along with V., her mother, her younger brother and her best friend, B. Her father was not there. During cross-examination, H. testified that by the time of this incident her parents were separated, and that H2 had been born and was also at the cottage with them.
[43] H. testified that while her mother was outside, V. came into the room where she and B. were going to sleep and began bothering them by touching their bums over their clothing. She testified that he did this twice. She responded by telling V. to stop. A bit later, after the girls had lay down in bed together to go to sleep, H. testified that V. returned, stood over them for a couple of minutes before laying down on the bed next to them. V. was lying on one side of the bed, B. was in the middle, and H. was on the other end. H. testified that once he was on the bed, V. took out his penis and began to masturbate. Apparently, none of them said a thing while this was happening. H. testified that this lasted about five minutes before V. pulled up his pants and left. During cross-examination, however, H. testified that she could not remember how long this incident had lasted. Nor could she recall if she and B. discussed it at the time.
[44] There was a long delay of almost six months between H.'s direct evidence and her cross-examination. In the interim, despite a direction that she not speak to any of the witnesses in this case about this matter, H. acknowledged that she had met with B. on one occasion between her direct and cross-examination. They met in a schoolyard. H.'s father was present during this meeting. It had been a couple of years since the two of them had seen each other. Although H. was initially guarded about the subject matter of their discussions, she ultimately conceded they had in fact spoken about the events at the cottage and the possibility of B. coming forward as a witness.
[45] Neither the Crown nor the defence called B. to give evidence at trial. That said, it appears that the police did ultimately interview her. This became apparent when B.'s statements to police were put to H. during cross-examination and she was asked to explain why B. denied that there had been any inappropriate behaviour by V. towards either of them at the cottage, including the masturbation incident. H.'s response, when she was first asked about this, was "maybe she doesn't remember." Later in her cross-examination, she testified, "if she says she doesn't remember then I don't know."
Events Preceding the Complaint to Police
[46] H. testified that although she had earlier considered telling her father about what V. had done to her, she was scared to do so because she worried about his potential reaction. As a result, she only first revealed the incidents to her father in June of 2014. As noted earlier, this revelation came in the lead up to the custody hearing relating to her younger sister, H2. H. testified that in preparing a "letter" (affidavit) for use in that proceeding, she made reference to V. "sexually assaulting" her. This prompted her father's fiancé to question her about the alleged assault, which led to her finally sharing the details of what had taken place with her father, his fiancé and her older brother, Z.
[47] H. testified that she became relatively close to her father's fiancé, J., soon after meeting her. During their conversations, H. acknowledged speaking to J. about her relationship with V., telling her that they were not close and also sharing with her some of his negative behaviours towards her. For example, the fact that V. had thrown a hot bowl of soup at her. (That incident had taken place while H. was still living with her mother and V. As noted earlier, her mother had called police and V. was criminally charged.) When specifically asked if she had ever told J. prior to June 2014 that V. had hurt her or touched her, H. was clear and consistent in her evidence – she never had.
[48] The Crown called J. G., H.'s father's fiancé, as a witness at trial. In contrast to H.'s evidence, however, J. testified that within a couple of days of first meeting her in person in the fall of 2012, H. had said to her, matter-of-factly, "Did you know that my older brother molested me?" Beyond that, however, H. did not want to discuss what V. had done to her any further. According to J., almost immediately afterwards she spoke to H.'s father about what H. had said. Neither of them took any steps to ascertain what H. meant by her statement that her bother molested her. Instead, they developed a plan to get H. into counseling. J. testified that H. did not prove receptive to that idea. Despite her resistance to speaking about what happened or taking counseling, J. testified that H. would periodically bring up the fact that V. had molested her.
[49] J. gave evidence that was essentially the same as the account provided by H. regarding the circumstances surrounding the preparation of an affidavit by H. and the other children, in June of 2014, for use in the family court proceedings. According to J., on June 18, 2014, she began to review H.'s affidavit. Within the first couple of sentences she saw a reference to the fact that "she was molested by V." She stopped reading the affidavit at that point, and decided to use this as an opportunity to get H. to talk about what happened in greater detail than she had been willing to do so before.
[50] J. testified that when she attempted to broach the reference to molestation in the affidavit, she told H. that the court would take what H. was saying very seriously and explained that everything would now come out. H. initially reacted to this with anger, but with encouragement, H. agreed to talk about what happened in greater detail. At that point, H. seemed overwhelmed, even ill; she became hysterical, crying and screaming. She either said "it was more than just touching" or "he didn't touch me". According to J., A. was present but later excused himself while Z. was present throughout the conversation. When H. finally calmed down, she told them "he put it in me." A. and Z. were present for this.
[51] During her evidence, J. acknowledged that she realized that H.'s allegations of abuse by V. would be important in the family court proceedings. She also acknowledged that she encouraged H. to include further details of what V. had done to her in her affidavit. Against this backdrop, H. shared specific details of what V. had done. According to J., this included H. telling her that V. had penetrated her anally. H., in contrast, specifically denied ever saying such a thing to J. (I note that during her evidence H. never suggested that such an act had taken place.)
[52] Z. also testified about the events shortly preceding his police statement. He recalled being downstairs at his father's house and coming upstairs to find H. and J. very upset. H. was crying. His father was present as well. When he asked what was wrong, he testified that H. said "V. raped me" or that "V. had raped me when I was younger". Z. testified that both he and J. were hugging and comforting H.. According to Z., at some point, he had heard his parents talking about V. touching H., but this was the first time he had ever heard that V. raped H.
Law and Analysis
[53] There are essentially two key issues that must be addressed in order to decide this case. First, whether or not the Crown has established, to the requisite standard, that the events that form the subject matter of H.'s allegations is very much a live issue. If he was not, then his actions by definition could not constitute a crime. Section 13 of the Criminal Code is crystal clear; it forecloses a finding of criminal responsibility against any person for "an act or omission on his part while that person was under the age of twelve years." Therefore, proof that the conduct alleged to constitute the offences charged took place "during a period commencing July ##, 2006 " (V.'s twelfth birthday) amounts to an essential element for both charges in this case. The Crown must therefore prove this element beyond a reasonable doubt in order to succeed in this prosecution. Second, assuming the Crown has discharged its burden with respect to the timing issue, whether or not the Crown has also proven the substantive elements of the charges beyond a reasonable doubt. I will address each of these issues in turn.
I. Has the Crown Proven that V. was at Least Twelve Years Old at the Time?
[54] Victims of historic sexual abuse may understandably struggle to remember with precision the exact date and time of traumatic events that took place in the distant past; this would seem to be especially true in cases involving children. As the Supreme Court of Canada has acknowledged: "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."
[55] As a result, ordinarily in an historic sexual assault case, especially those involving complainants who were children when they were victimized, imprecision with respect to when the events charged took place is of little practical significance. The Crown invariably manages such temporal uncertainty by particularizing the charge(s) in a manner that encompasses a period of time. The period specified is informed by the broad temporal strokes of the complainant's account. Depending upon the circumstances, this can mean particularizing the charge to allege it took place over a span of days, months or even years.
[56] At first blush, that practice would seem to be at odds with section 581(3) of the Criminal Code, which mandates that the charge be worded with "sufficient detail of the circumstances of the alleged offence" to "identify the transaction" and give the accused "reasonable information" about it. This requires enough detail in the charge to "lift it from the general to the particular." In practice, that requirement is rarely a significant obstacle in historic sexual assault prosecutions.
[57] In R. v. B.(G.) the Supreme Court explained that the charge must simply "provide an accused with sufficient information to enable him or her to identity the transaction and prepare a defence." It went on to note that; "particularity as to the exact time of the alleged offence is not in the usual course necessary for this purpose." Thus, for example, in B.(G.), given the nature of the offence (sexual assault) and the young age of the complainant, the Court ruled that it was sufficient to allege that the assault occurred at some point over a 19-day period.
[58] The Supreme Court in R. v. B.(G.) also addressed whether or not the timing of the offence as particularized will constitute an essential element such that the Crown will be required to prove it in order to secure a finding of guilt. After reviewing the relevant authorities, the Court addressed that issue as follows:
From the foregoing, it is clear that it is of no consequence if the date specified in the information differs from that arising from the evidence unless the time of the offence is critical and the accused may be misled by the variance and therefore prejudiced in his or her defence. It is also clear from Dossi and other authorities that the date of the offence need not be proven in order for a conviction to result unless time is an essential element of the offence. Accordingly, while it is trite to say that the Crown must prove every element of the offence in order to obtain a conviction, it is, I believe, more accurate to say that the Crown must prove all the essential elements. The Crown need not prove elements which are, at most, incidental to the offence. What the Crown must prove will, however, of necessity vary with the nature of the offence charged and the surrounding circumstances. Time may be an essential element of the offence in some circumstances and it may be instructive therefore to look at a few cases where this was held to be so …
The cases reviewed by the Court each involved situations where the combination of the offence charged and surrounding circumstances made proving when the events occurred determinative of whether or not an offence was established. The Court held that in such cases, where time is an essential element, a finding of guilt requires that it be proven beyond a reasonable doubt.
[59] Given the evidence at trial in this case, whether or not V. was age twelve or older at the time of the events that are the subject matter of H.'s allegations is very much a live issue. If he was not, then his actions by definition could not constitute a crime. Section 13 of the Criminal Code is crystal clear; it forecloses a finding of criminal responsibility against any person for "an act or omission on his part while that person was under the age of twelve years." Therefore, proof that the conduct alleged to constitute the offences charged took place "during a period commencing July ##, 2006 " (V.'s twelfth birthday) amounts to an essential element for both charges in this case. The Crown must therefore prove this element beyond a reasonable doubt in order to succeed in this prosecution.
[60] I note that Ms. Gluzman conceded that the standard the Crown was required to meet on the question of timing was that of proof beyond reasonable doubt. She submitted, however, that when the whole of the evidence is considered, especially in light of what she asserts are some rather reliable temporal anchors in this case, the Crown has discharged its burden. In contrast, Mr. Fedunchak, on behalf of V., contends that there is far too much uncertainty surrounding the timing of the events alleged by H. for the Court not to harbour a reasonable doubt on that question.
[61] It is apparent from a careful assessment of the entirety of H.'s evidence that she is far from certain in her own mind as to when most of the events that are the subject matter of the charges took place. With respect to the first incident, she initially testified that it took place when she had just started the second grade and she therefore would have been seven years old. She testified that the next two incidents followed shortly thereafter. This would have been the fall of 2006, given that she was born on July ##, 1999. She could not remember what grade she was in with respect to the fourth incident. H. was also unable to provide much, if any, detail in relation to the fifth incident, and gave no evidence regarding its timing. The same was true in relation to the sixth incident, the allegations relating to Wasaga Beach. Nevertheless, H. estimated that all of the acts of intercourse, from the first to the last, had probably taken place within two to three months of one another.
[62] Ultimately, with respect to the first incident, H. conceded that she could not really remember when it happened. When pressed as to why she had thought she was in the second grade when the abuse began, she referenced the fact that she was going to X X Public School at the time. However, she also testified that she went to that same school for four years, starting in junior kindergarten and ending in grade three. J. also testified that when she first spoke to her about these allegations, H. could not remember how old she was when the abuse began, although she thought it had ended when she was around twelve years old. H. testified that the final incident, the one at the cottage in Innisfil, had taken place when she was ten years old and after her parents had separated (they separated in 2007, when H. was eight). That said, with respect to that incident she was far from certain regarding her age or even the grade she had just finished or was going into that fall.
[63] Beyond H.'s own evidence, the Crown argued that there are two important temporal anchors that serve to shore up its case that these events took place after V. turned twelve.
[64] The first relates to H.'s medical records. H. testified that while she was a student at X X Public School, she had to attend the doctor on two occasions to obtain treatment for yeast infections. Although she was unable to remember what grade she was in at the time, she testified that she believed these visits "were close" in time to the sexual assaults she described in her evidence. On consent, the parties filed a letter from H.'s doctor that confirmed he treated her for a yeast infection on one occasion during the three-year period commencing January 1, 2006 and ending December 31, 2009. That visit occurred on February 23, 2009. The Crown contends that this is an important temporal anchor that assists in establishing that V. was over the age of twelve when the events described by H. occurred.
[65] The second relates to V.'s braces. H. testified that V. had braces. When asked when he got them, she said, "I think he was around the age of 13." During her evidence, H. linked V.'s braces with her memories of some of the assaults. V.'s mother, D., gave similar evidence regarding V.'s braces. Although the Crown forcefully attacked D.'s credibility and reliability as a witness, in response to this question Ms. Gluzman submits that D. answered without hesitation and therefore her evidence on this point should be accepted. When the evidence from both H. and D. regarding the braces is combined, the Crown argues that it serves to fortify its case on the issue of timing.
[66] I have carefully considered H.'s evidence, together with the evidence regarding the medical visit and V.'s braces. I have considerable difficulty using this collection of evidence in the manner urged by the Crown. I will briefly explain why.
[67] To begin, the connection between H.'s yeast infections and the sexual assaults relies entirely on H.'s ability to reliably remember peripheral events in and around the time of the alleged sexual assaults. I note that H. had significant difficulty remembering events at the very heart of her allegations. Her ability to remember peripheral details, like the grade she was in, her age, or whether or not her sister was born at certain points in time, was even more wanting. I therefore think it would be dangerous to act on her evidence that the sexual assaults corresponded closely with the yeast infections. In that regard, I note that H. testified that she had two yeast infections but the medical records demonstrate that she only had a yeast infection on one occasion. Finally, H. linked her memory of having the yeast infections to attending X X Public School but in February 2009, when H. visited her doctor, she would have been in the winter term of grade four. On the evidence, H. did not attend X X Public School that year; grade three was her last year at that school.
[68] I have similar concerns with respect to using the evidence of V.'s braces as a temporal anchor. H. did not offer this detail in response to an entirely open ended question. She was specifically asked if V. had braces on any of the four occasions involving intercourse to which she responded, "Yes he did, yeah." When asked at what point, she responded, "I would say the third incident." She could not remember if he had them for the first two. With respect to the fourth, she indicated, "I am pretty sure he had them then." Having watched and listened to H. give this testimony, I had the distinct impression that she lacked an actual recollection of whether or not V. had braces at those times. Her answers left the impression that she might simply be guessing.
[69] I also have similar concerns regarding D.'s evidence on the braces issue. Throughout her evidence, D. proved a remarkably poor witness when it came to remembering important dates. For example, she struggled to remember her children's birthdays or the date she married A. In her evidence, she simply agreed with the suggestion, when it was put to her, that V. got his braces when he was thirteen. Obviously, V.'s dental records would be a far more reliable source of information on when he obtained his braces. Those records, however, were not part of the record before me. Even if they were, for the reasons already noted, I would still be rather disinclined to place any weight on H.'s evidence regarding V. wearing braces at the time of any of the assaults alleged.
[70] Of course, I am not limited to the evidence adduced by the Crown. In that regard, it could be argued that the strongest evidence in favour of finding that V.'s behaviour towards H. took place after he turned twelve came during the defence's case. It was V.'s mother, D., who testified regarding A.'s extreme reaction towards V. in the aftermath of the incident at Wasaga Beach. That reaction would seem to support an inference that V. must have been older than twelve at the time. Otherwise, one might reasonably ask, why would A. have responded in such an extreme fashion? However, I believe that using A.'s reaction in this way would constitute implied hearsay. The hearsay danger here is that the probative value of this evidence depends on questions surrounding the reasons for A.'s behaviour. If the Crown wanted to imbue A.'s reaction with a particular meaning, they could have called him to testify so that he could explain his motivation.
[71] To infer from this extreme reaction that V. must have been over twelve at the time assumes that A. is a reasonable and responsible person. There is an absence of any evidence to support that assumption. To the contrary, as part of its efforts to impeach D.'s credibility, the Crown went to great lengths to link her to A.'s criminal antecedents. In that regard, I heard evidence that A. has a considerable criminal record, which includes a number of prior entries for theft. His criminal record also includes a prior conviction for attempting to obstruct justice in a murder case for his role in helping to conceal a murder weapon in return for payment. Given all of this, I think it would be extremely dangerous to draw any inference about V.'s age at the time based on the way in which A. behaved at Wasaga Beach.
[72] As noted above, D. was a very poor witness when it came to remembering dates. I therefore place no credit on her assertion that the Wasaga Beach incident took place in 2003. Her evidence regarding the date was nothing more than hearsay. I am also mindful of her criminal record for a significant crime of dishonesty, public mischief, which relates to recanting an allegation of assault against A. when they were still together. Finally, I also recognize that when she was with A., she clearly turned a blind eye to much of the illegal activity he was apparently involved in.
[73] All of that said, I am not prepared to conclude that D. mislead the court regarding her claim that the events between H. and V. took place when they were much younger and amounted to nothing more than "just kids being kids." In my view, D.'s past behaviour does not suggest a bias in favour of V. It will be remembered that when he assaulted H. by throwing hot soup at her and twisting her arm, it was D. who called police, leading to his arrest and charges. Further, much of D.'s evidence was contrary to V.'s best interests. For example, she testified that she found V. and H. together with their pants down. She also confirmed the existence of an incident at Wasaga Beach and readily conceded statements by V., in response to A.'s tirade, that are clearly incriminating. Importantly, long before she was aware of the age of criminal responsibility, D. told police that she thought these events took place when V. was "twelve or eleven ". Lastly, despite a prolonged and careful cross-examination, I found D.'s evidence, regarding the events directly relevant to this trial, held together as a matter of logic and common sense.
[74] Finally, I must also take into account the evidence of M. H., H. and V.'s maternal grandmother. Although I am not prepared to say that I believe her evidence, as I do have reservations about the independence of her account given the relatively recent discussions she has had about these events with her daughter A2, I also have no reasonable basis to entirely reject her testimony. She does not have a criminal record. She testified in a straightforward and matter of fact manner. More importantly, she anchored her recollection that she spoke to her daughters about the Wasaga Beach incident in 2003 in two significant life events: her husband's tractor accident and nursing her dying mother in law, who passed away the very next year.
[75] Ultimately, when I consider the totality of the evidence relating to the timing of the abuse alleged by H., I am simply left in a state of reasonable doubt as to whether these events took place after V.'s twelfth birthday. Given this conclusion, my analysis could end here. However, out of an abundance of caution, in the event that I am wrong in my conclusion that the Crown must prove beyond a reasonable doubt that V. was at least twelve years of age at the time of the events alleged by H., I think it appropriate to proceed further. I will therefore turn to a consideration of whether or not the Crown has proven the other elements of the charges beyond a reasonable doubt.
II. Has the Crown Proven the Substantive Elements of the Charges?
[76] The era when the evidence of children was viewed as inherently suspect has long past. It has been nearly thirty-years since Parliament repealed statutory rules that prohibited a conviction based on a child's testimony absent corroboration. The Supreme Court has similarly abrogated common law rules that were prefaced upon stereotypical assumptions such as the belief that stories of abuse are probably fabricated if not reported immediately, or that the testimony of children is inherently unreliable. As the Supreme Court has noted, the equating of such thinking with "common sense" creates "the risk that victims of abuse will be blamed or unjustly discredited in the minds of both judges and jurors." Triers of fact must therefore be conscientious in guarding against such thinking.
[77] The Supreme Court of Canada has recognized that judges should take a common sense approach when assessing the evidence of children. Their evidence should therefore not be subject to the same exacting scrutiny to which the evidence of adult witnesses is often assessed. Thus, for example, an internal or external inconsistency in a child witness's evidence may not have the same impact on their credibility as it might if they were an adult witness, especially when it relates to peripheral and therefore less consequential details. This does not mean, however, that the credibility and reliability of child witnesses should not be carefully evaluated.
[78] The Supreme Court has eschewed a categorical approach, which would see the application of one set of "adult" standards and another set of "child" standards. Ultimately, the evidence of every witness, irrespective of age, should be assessed bearing in mind his or her level of mental development, ability to understand and capacity to communicate. At the same time, the Court has also addressed the approach to be taken in a situation that is common in many historic sexual abuse cases:
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.
This guidance is of course relative. For example, H. is neither a child nor an adult. She is a teenager on the cusp of young adulthood, who testified about abuse that she allegedly suffered dating back almost a decade or longer, when she was a relatively young child. I must remain mindful of all of this when assessing her evidence because her testimony must be considered in its proper context.
[79] Ultimately, in cases involving complainants who are young children, adolescents or adults, the same standard of proof applies. The Crown must always prove the charges against an accused person beyond a reasonable doubt. With these general principles firmly in mind, I return once again to the circumstances of this case.
[80] I have given very careful consideration to H.'s evidence in this case. If the sole measure of credibility were her demeanour as she testified, I would have no difficulty acting on her evidence. When H. initially described what she alleged V. had done to her, she was extremely emotional and struggled to even get the words out. That said, the case law has consistently cautioned against making credibility determinations based on demeanour alone. I must also carefully consider the substance of H.'s evidence, along with all of the other evidence at trial.
[81] To begin, common sense suggests that a person who is subject to repeated acts of abuse who then must recount these experiences years later may struggle in distinguishing one experience from the next. I imagine this would be especially true the greater the number of incidents and if the incidents share common features. In this case, I can entirely understand why many details could slip away from H.'s memory with the passage of time, especially given that the events took place in the distant past when she was only a child. Nevertheless, I am struck by her lack of a detailed and consistent recollection with respect to certain things that common sense suggests she should remember. For example, the details regarding the very first act of intercourse and at least some of the material details regarding the only incident of intercourse that she alleged took place in the basement. These are things that might prove very hard to forget.
[82] Another critical consideration in assessing the evidence of a witness is inconsistency from one telling of their account to another. Inconsistencies may emerge in the witness's testimony at trial, between in court testimony and out of court statements, or between different statements the witness made outside of court. They can take the form of contradictions between things said, or the inclusion of details in one account that are omitted from another. Obviously, inconsistencies regarding minor or insignificant details are expected in the remembering and retelling of any event. This is especially so with child witnesses. All of that said, when the inconsistencies relate to material matters that an honest witness is unlikely to be mistaken about, they can give reason for pause.
[83] It is entirely understandable that there may be some inconsistencies in H.'s testimony and statements regarding some of the details that are peripheral to her allegations. After all, on a number of different occasions, she was required to describe events alleged to have taken place many years earlier. Minor differences will emerge in each retelling when the same event is remembered and described at different points in time. Nevertheless, one would expect that her description of material events would remain relatively consistent. A careful examination of H.'s testimony, however, reveals otherwise in relation to at least some of the material facts.
[84] By way of example, with respect to the first incident, which might be expected to stand out in her memory, her evidence regarding some significant details was inconsistent. These included whether V. stood over her bed or got onto it, touched her with only one hand or two, and, most significantly, penetrated her with his fingers or not. There were other examples as well; I do not intend to catalogue each of them. The most significant, in my view, is telling J. that V. anally penetrated her, while insisting during her evidence that nothing of that nature ever happened. This is a major inconsistency on a detail that would seem impossible to either forget or be mistaken about.
[85] As noted above, rules that required the corroboration of allegations made by children were long ago abolished. Nevertheless, the Supreme Court of Canada has recognized that there will be occasions involving child witnesses when the trier of fact will be justified in looking for confirmatory evidence.
[86] In this case, there are a number of examples where one would expect H.'s account of events to be confirmed by others. It is concerning that much of this evidence contradicts her on material aspects of her account. For example, H. testified that Z. interrupted the first assault, was shocked by what he saw, demanded to know what was going on, and then slept in her bed that night. During his testimony Z. did not confirm any of this. In fact, he testified that he never slept in H.'s bed.
[87] There was also H.'s allegation of intercourse in the basement and Z. coming downstairs after the fact just as V. was doing up his pants. It is impossible to reconcile Z.'s evidence with that account. He testified to being in the basement the entire time with V. and H., and testified about what could at best be described as possibly preparatory steps towards fellatio, an act that H. never alleged.
[88] In addition, there was H.'s evidence that she and V. were in the very midst of intercourse when her mother walked into the room. In contrast, D. described catching the two of them with their pants down. She essentially described two young children "playing doctor", in her words, nothing more than "kid stuff". Of course, I appreciate that the Crown's position is that D. is lying about the nature of her observations and minimizing what she actually saw, but for the reasons I have already detailed above, I am far from convinced that D. is not being forthright with the Court.
[89] Finally, and most importantly in my view, there is the lack of corroboration of the incident at the cottage in Innisfil. It will be remembered that H. described being with B., V. touching their bums and then masturbating next to them as they were lying down to go to sleep. As a result, B. could have been a critically important witness in this case. She has not had much contact with H. over the last couple of years. Therefore, her evidence would have been far removed from any agenda that may have served to compromise the objectivity of the various family members who were the only witnesses who testified in this proceeding. Although the police apparently interviewed her, the Crown decided not to call her as a witness. In these circumstances, I think it is fair and reasonable to infer that she was not called to testify by the Crown because she did not corroborate H.'s account.
[90] A final, critical consideration that must be kept in mind whenever evaluating the evidence of a witness is the presence or absence of a motive to lie. In this case, I recognize that every single witness who testified before me had a clear and obvious motive to lie, including each of the Crown and defence witnesses. At the heart of this case is the breakdown of the troubled marriage between D. and A. In the aftermath of that, all of the children from the marriage, with the exception of H2, came to live with A. and his new partner, J. The dispute between D. and A. over who would have custody of H2 led to family court proceedings. It was that litigation that provided the impetus for H. to go to police with the allegations that are the basis for the charges before this court.
[91] To be sure, H.'s explanation for why she chose to come forward when she did makes perfect sense. If V. sexually abused her, protecting her baby sister from a similar fate could motivate her to reveal her deepest and darkest secret despite all of the unpleasantness that that would entail. At the same time, however, it is clear that there was a fair amount of animus on H.'s part directed at V., who had physically assaulted her in the not too distant past, and her mother, who had essentially thrown her out of her home. In the aftermath of that, H. closely aligned herself with her father.
[92] It is clear that A. was rather proactive in enlisting his children onto his side in the custody dispute with D. He encouraged each of the children to prepare affidavits for use in the family law litigation. A. was not called as a witness in this trial. However, in its effort to impeach D., the Crown elicited a great deal of bad character evidence about him. The picture that emerged was not flattering. As I consider and weigh all of the evidence in this case, it is hard not to contemplate that if A. was willing to attempt to obstruct justice in a murder investigation by disposing of the murder weapon in return for payment, what might he be willing to do to ensure his success in a heated custody dispute with his ex-wife? In posing that question, I am also mindful of A.'s troubling presence at that very curious reunion between B. and H. after this trial commenced but before B. was interviewed by police. Finally, I cannot help but remember H.'s initial response when she was first asked about the events at Wasaga Beach during her evidence: " My dad said that when we went to the beach, he saw V. grab [me]".
[93] In the end, when I consider and weigh all of the evidence in this case, it is impossible to ignore the possibility that H.'s allegations could be part of a misguided effort to help her father realize his desire to move forward in life with all of his children and his new partner. The evidence clearly establishes that there was at least childhood sexual exploration. Could H.'s allegiance to her father and her hostility towards her mother and half-brother have led her to exaggerate those events into something more sinister? This would serve to explain many of the infirmities that I have identified with respect to H.'s evidence. In the end, of course, I simply have no idea.
Conclusion
[94] To be clear, this is not a situation where I disbelieve the complainant. Rather, after carefully considering and weighing all of the evidence, I am not sure where the truth ultimately lies in this case. In other words, I have a reasonable doubt. V.R.C. is therefore found not guilty of both charges.
Released: June 24, 2016
Signed: Justice James Stribopoulos