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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(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
Date: May 29, 2018
Court File No.: Toronto 17-55001261
Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Aymen Hamid
Before: Justice Paul H. Reinhardt
Heard on: 23, 24, 25 & 26 April and 22 May 2018
Reasons for Judgment released on: 29 May 2018
Counsel:
Valerie Culp for the Crown
David M. Cohn for the accused
REINHARDT J.:
Charges
[1] Aymen Hamid is charged that he did, between the 5th day of March and the 27th day of March in the year 2017, at the City of Toronto, in the Toronto Region:
(1) Commit a sexual assault on O.B., contrary to Section 271 of the Criminal Code of Canada; and further,
(2) With parts of his body, namely his hand and tongue, for a sexual purpose, directly touch the body of a person under the age of sixteen years, namely O.B., contrary to Section 151 of the Criminal Code of Canada.
Orders Made
[2] At the outset, on consent, I made two orders:
(a) Pursuant to section 486.4 of the Criminal Code, banning publication of any information that would tend to identify the complainant;
(b) Pursuant to section 486.2 of the Criminal Code, permitted the complainant to testify outside the courtroom;
[3] In making this order, I was satisfied that the criteria for making the orders, under section 486.2(3) and 486.5(7), respectively, had been met.
Evidence Heard
[4] In this proceeding I heard evidence from:
(1) O.B., the complainant;
(2) H.A., the complainant's aunt;
(3) H.M., the complainant's mother; and
(4) A.O., the complainant's father.
Exhibits
(1) As part of the evidence, Exhibits 1A & 1B are the complainant's DVD Statement dated 19 April 2017, admissible pursuant to s. 715.1 of the Criminal Code, and the transcription thereof;
(2) Exhibit 2 is the complainant's sketch of the bedroom where the offences are alleged to have occurred;
(3) Exhibit 3 is a body diagram, marked by the complainant, showing where she alleged she was touched by the accused;
(4) Exhibits 4A & 4B are the DVD Statement and transcription thereof, given by H.A., on 5 May 2017;
(5) Exhibits 5A & 5B are the DVD Statement and transcription thereof, given by H.M., on 19 April 2017;
(6) Exhibits 6A & 6B are the DVD Statement and transcription thereof, given by A.O., on 2 May 2017;
Conclusion on Evidence
[5] I have reviewed the testimony and exhibit evidence in this trial and concluded that the Crown has not proven the offences of Sexual Assault and Sexual Interference to the Criminal standard, that is, beyond a reasonable doubt. Let me explain how I have reached this conclusion.
SUMMARY OF THE PROCEEDINGS AND EVIDENCE
O.B.
[6] The complainant testified that she is eight-years-old, having been born on 30 June 2009, and was seven-years-old at the time of these events.
[7] She testified that she resides with her mother and her two sisters, Ba., age six, and Be., age four, in an apartment in Toronto.
[8] She testified that her parents are divorced, but that her father visits her and her sisters on the weekend.
[9] She testified she was in Grade 2 at the time of these events, and now is in Grade 3.
[10] The complainant was shown the video of her electronically recorded interview with Detective Constable Cory Hedgeman, Badge #8488, Toronto police, taken 19 April 2017, at the Gatehouse, 3101 Lakeshore Boulevard West, Toronto, in the presence of Toronto Children's Aid Society representative, Stacey Dinelle.
[11] Both in the video interview and in her viva voce testimony in court at trial, the complainant testified that she understood the difference between speaking the truth and telling a lie.
[12] The complainant recognized herself in the video, recalled the interview, and adopted the contents of what she said in her interview as true and honest, to the best of her ability.
[13] Pursuant to the Section 715.1 of the Criminal Code, the recorded interview was admitted as part of her evidence in this proceeding, as a statutory exception to the hearsay rule. (Trial Exhibits 1A & 1B)
[14] The Crown next referred the complainant to the sketch she made for Constable Hedgeman on 19 April 2017, which show the witness's depiction of the location of the furniture and beds in the bedroom she shares with her two younger sisters.
[15] The complainant identified and then adopted the contents of her sketch and testified that her bed was against the wall, across the room from the bedroom door.
[16] The complainant testified that her sister Ba.'s bed was in the middle of the room and her sister Be.'s bed was across from the complainant's bed on the far wall of the bedroom, nearer to the bedroom door. (Trial Exhibit 2)
[17] The complainant testified that during the period in which the assaults are alleged to have taken place, from 5 March 2017 to 27 March 2017, her mother was on an extended vacation in Abu Dhabi, and her father had moved back into the apartment with a friend, the accused, Aymen Hamid, to look after her and her sisters while their mother was away.
[18] The complainant testified that their father and his friend, Mr. Hamid, would sleep in the living room of the apartment.
[19] The complainant testified that her father slept on a couch, while the accused, Mr. Hamid, slept on a mattress on the floor.
[20] The complainant testified that during this period, the three sisters continued to sleep in their own bedroom, in their own beds.
[21] The complainant testified that during these March days when her mother was away, and her father was looking after her, her father would leave for work very early before the girls got up in the morning.
[22] The complainant testified that the regular routine was that she would dress herself and her younger sisters, as well as make breakfast.
[23] The complainant testified in court that during this period she would wake up between 6:30 and 7:00, dress herself and her two sisters and get her two sisters ready for school.
[24] The complainant testified that she would help her sisters by getting their breakfast and then leaving them in the living room to play or watch videos on the family computer.
[25] The complainant testified that each school day after breakfast, their regular baby-sitter would arrive and drive them to school, as well as pick them up after school.
The Alleged Assaults
[26] In her recorded 715.1 Interview, the complainant described the assaults taking place in the morning, when the accused, Mr. Hamid, was the only adult in the apartment.
[27] In her recorded interview, the complainant stated that when the assaults took place she was sleeping in her bed.
[28] The complainant stated in her interview that the accused would touch her under her clothes with his hand and tongue, on her front "private parts".
[29] At trial, she marked a printed depiction of a "front & back" unclothed child's body at the front crotch area and told Constable Hedgeman that this was where she was touched. (Trial Exhibit 3)
[30] In her recorded interview, she told the officer that this touching happened "like a lot" during the approximately two weeks that her mother was away, and her father was at work.
[31] In her recorded interview, she told Constable Hedgeman that her sisters were not present when these assaults took place.
[32] In her interview she told the officer that when these assaults took place her sisters were in the living room, either on a family computer or playing with each other.
[33] In her interview, the complainant testified that she couldn't remember if any assaults took place in other rooms in the apartment, but she was certain she was assaulted in the morning, when she was sleeping in her bed, and her sisters were playing out in the living room.
[34] In her interview with the officer, the complainant stated that she was certain that the accused, Mr. Hamid, did not assault her sisters.
[35] She testified at trial that she was certain her sisters were not assaulted because they were not in the bedroom when she was assaulted.
[36] In her court testimony, the complainant confirmed her interview with the officer in which she stated that the assaults took place while she was sleeping in her bed.
[37] The complainant testified that she would "wake up" and "get angry".
[38] The complainant testified that she would get "super mad" and would leave the bedroom.
[39] The complainant also testified that the first person to whom she disclosed that she had been assaulted was her aunt H.A. at the "Chuck E Cheese" Restaurant, and later, she told her mother at their apartment.
H.A.
[40] H.A. testified that she is the older sister of the complainant's mother.
[41] She testified that she helped raise the three girls and testified that she is very close to them.
[42] H.A. also testified that she knew the accused, Mr. Hamid for approximately ten years at the time of the allegations.
[43] H.A. testified that she has three children of her own and when her sister decided to go to Abu Dhabi, her sister told her of her plans, and the arrangement she had made with the children's father to look after them in their mother's apartment.
[44] H.A. testified that she called many times to see how the children were doing during the period when their mother was away, but except for one occasion shortly after her sister left, when the complainant, O. B., answered the phone, she was not successful in reaching the children.
[45] H.A. testified that on one occasion while her sister was away she spoke with her sister's babysitter, who told her the children were fine, were not sick or suffering from fever.
[46] H.A. testified that the children each year would usually have an Easter visit with her, and in 2017, just after their mother returned from her trip, she arranged for the two older girls to come with her to Chuck E Cheese for lunch, on the Easter weekend.
[47] H.A. testified that prior to going to Chuck E Cheese with the two girls, they were dropped off at her house, and she and her sister's two children had some time alone together while H.A.'s children, M. and R. were getting dressed.
[48] H.A. testified that she was speaking first to the younger of the two girls and asked her what it was like staying at home with her father, without either her mother or her aunt H.A.
[49] H.A. testified that her younger niece told her, in O.B.'s presence, that the accused, who she referred to as "Uncle Aymen" would sometimes change her youngest sister's diapers, but that he was a "strange" person, he was "weird", and he "smokes a lot".
[50] H.A. testified that her younger niece also told her in O.B.'s presence that the accused "quarrels with O.B. a lot".
[51] H.A. testified that while her younger niece was telling her all these things the expression on the complainant, O.B.'s face "did not give me comfort".
[52] H.A. testified in the trial that she was "sure that something was going on" and this was making O.B. "fearful".
[53] H.A. testified that after leaving her two nieces briefly to deal with her child, M., she came back and spoke to O.B. privately, in her kitchen.
[54] H.A. testified that O.B. told her that she "hated" the accused, and H.A. asked to explain why.
[55] H.A. testified that her niece, O.B. then told her that she wanted to tell her something but wanted to "keep it a secret" and then began "tearing".
[56] H.A. testified that her niece disclosed to her that the accused had touched her many times on her "private part", with his hand and tongue that she had told him to stop but he wouldn't stop.
[57] H.A. testified that at this point the other children came back to the kitchen and her conversation with the complainant ended.
[58] H.A. testified that after this disclosure she called her sister, H.M., told her briefly what O.B. had told her and asked her to meet them at the Chuck E Cheese Restaurant.
[59] H.A. testified that both H.M. and her husband later joined them at the Chuck E Cheese, sometime after 2:00 P.M. at which time she told both parents what O.B. had said to her.
H.M.
[60] H.M. testified that she is the complainant's mother.
[61] H.M. testified that she and her ex-husband, A.O., had three girl children, but were divorced in 2014, at which time they no longer resided together.
[62] The three girls are: O. B., age 8; Ba., age 6; and Be., age 4.
[63] H.M. testified that she has custody of the children, with her ex-husband permitted weekend access.
[64] H.M. testified that she had planned for her ex-husband to move back into their apartment in order to look after the children while she was in Abu Dhabi, from 5 to 27 March 2017.
[65] H.M. testified that she had planned for her regular babysitter to continue to pick up the children for school at 8:00 A.M. take them to school and then pick them up from school return them home in the afternoon at about 3:30.
[66] H.M. testified that when she returned on the 27th of March she received a call from her sister stating that her oldest child, O.B., had been sexually assaulted by the accused.
[67] H.M. testified that prior to this call she had no idea that the accused, Mr. Hamid would have a role in caring for the children while she was away.
[68] H.M. testified that she received no details from her sister, but after picking up her two oldest children from the Chuck E Cheese, she took her oldest daughter aside at home, and was told that "Uncle Aymen" placed her finger and tongue on her private parts.
[69] H.M. testified that she asked no further questions, and did not pursue the questioning at any time after this initial disclosure.
[70] H.M. testified that she did not immediately go to the police to make a complaint because she and her husband disagreed as to who would make the complaint.
A.O.
[71] A.O. testified that he is the complainant's father.
[72] A.O. confirmed that he and his ex-wife had three girl children, but they had divorced, with custody to his wife and he has access Friday night and weekends.
[73] He testified that he knew well before March that his wife was considering taking a vacation during March Break in 2017, but told her he would have to make arrangements to take time off work, because his current work schedule required him to leave for work at 5:00 A.M.
[74] He testified that the next communication he had from his wife was in the first days of March, asking him to come over for the weekend to look after the children, which he agreed to do.
[75] A.O. testified that he was shocked to receive a call from his wife during the weekend stating she was now in Abu Dhabi, and that she was counting on him to care for the children until her return on the 27th.
[76] A.O. testified that this was why he enlisted the help of the accused, who was a friend of his and of the family, for many years, to be present and look after the children from 5:00 A.M to 8:00 A.M. each morning after he had gone to work.
[77] A.O. testified that his routine during the period he took care of the three sisters was that he would sleep on a bed in the living room, and Mr. Hamid would arrive late each evening, between 9:00 P.M. and 11:00, and go to sleep in the living room, on a mattress.
[78] A.O. testified that his youngest daughter, Be.'s routine would be to first visit him in the living room until she fell asleep, and then he would put her into her own bed, in the middle of the girl's room.
[79] A.O. testified that the two elder girls slept together every night in O.B.'s bed away from the bedroom door and against the wall.
[80] A.O. testified that he did not interfere in this arrangement, because his older daughter requested this, and she told him she liked to share her bed with her younger sister.
[81] A.O. testified that each morning he would wake up early, change Be.'s diaper and organize the three children's clothes for the day.
[82] A.O. testified that he then would leave for work at 5:00 A.M. the two elder girls were still sleeping as was Mr. Hamid, the accused.
Crown Submissions
[83] In her written argument, the Crown submits that I have before me the Section 715.1 DVD Statement of the complainant, which she adopted in her testimony at trial.
[84] The Crown points out that the complainant disclosed to her aunt that she had been sexually assaulted when she visited her aunt on the Easter weekend, less than one month after the alleged assaults, and gave her Section 715.1 DVD Statement less than three weeks after this initial disclosure.
[85] The Crown also asserts that there were sufficient details provided by the complainant to the police and to the court when she testified to make out the allegations to the Criminal standard, without further testimony.
[86] The Crown further submits, however, that the three adult witnesses who testified at trial tended to corroborate the complainant's evidence, and if anything, added weight and certainty to the allegations.
[87] The Crown specifically relies in her submission that the evidence before the court is sufficient to convict, on the decision of the Ontario Court of Appeal in R. v. G. C., [2006] O.J. No. 2245, in which Justice Paul Rouleau, in upholding the trial judge's finding that the Crown had proven its case to the Criminal standard, stated, at paragraph 22:
22 In cases involving sexual assault on young children, the courts recognize the difficulty in the victim providing a full account of events. In appropriate cases, the way the complaint comes forth can, by adding or detracting from the logical cogency of the child's evidence, be a useful tool in assisting the trial judge in the assessment of the child's truthfulness. This was such a case. I would, therefore, give no effect to this ground of appeal.
Defence Submissions
[88] In his written argument, defence counsel submits that the Crown has not established that the assaults took place to the Criminal standard.
[89] The defence submits that there are several key elements of the Crown narrative that should leave this court with reasonable doubt.
[90] The defence submits that these elements include:
(1) Opportunity
According to the complainant's testimony, there was not opportunity in the morning wake-up routine for him to be alone with the complainant in her bedroom;
(2) Outright Denial of Inappropriate Touching
The complainant initially told both her parents, when directly asked, that nothing bad had happened to her;
(3) Absence of Details
The complainant's inability to provide details of the assaults;
(4) B.O. was never asked if anything inappropriate had happened to her
(5) No inquiries were made by the complainant's aunt or mother about further information
[91] The defence submits, with respect to the particulars of the Crown's allegations, that the complainant was inconsistent and contradictory on material elements of her court testimony, both in relation to her initial 715.1 DVD Statement, and within her testimony at trial. These inconsistencies include:
(1) Whether she was sleeping when she alleges that each assault began;
(2) Whether she was always assaulted in her bedroom, or in other rooms of the apartment;
(3) Whether on each occasion that she was assaulted, she could recall the duration of the assaults;
(4) The rationale for her certainty that her two younger sisters were not assaulted by the accused;
LEGAL FRAMEWORK
[92] The Criminal Code of Canada provides:
Sexual Offences
Consent no defence
150.1 (1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under section 151 or 152 or subsection 153(1), 160(3) or 173(2) or is charged with an offence under section 271, 272 or 273 in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.
Sexual interference
151 Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days.
R.S., 1985, c. C-46, s. 151; R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 3; 2008, c. 6, s. 54; 2012, c. 1, s. 11; 2015, c. 23, s. 2.
Assault
265 (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
Application
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
Consent
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(c) fraud;
Accused's belief as to consent
(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.
R.S., c. C-34, s. 244; 1974-75-76, c. 93, s. 21; 1980-81-82-83, c. 125, s. 19.
Meaning of consent
273.1 (1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.
Where no consent obtained
(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where
(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(b) the complainant is incapable of consenting to the activity;
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
Subsection (2) not limiting
(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.
1992, c. 38, s. 1.
Corroboration not required
274 If an accused is charged with an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 271, 272, 273, 286.1, 286.2 or 286.3, no corroboration is required for a conviction and the judge shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration.
R.S., 1985, c. C-46, s. 274; R.S., 1985, c. 19 (3rd Supp.), s. 11; 2002, c. 13, s. 12; 2014, c. 25, s. 16.
Video-recorded Evidence
Evidence of victim or witness under 18
715.1 (1) In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.
Order prohibiting use
(2) The presiding judge or justice may prohibit any other use of a video recording referred to in subsection (1).
R.S., 1985, c. 19 (3rd Supp.), s. 16; 1997, c. 16, s. 7; 2005, c. 32, s. 23.
Case Law
THE FRAMEWORK OF ANALYSIS
The Presumption of Innocence & Proof beyond a Reasonable Doubt
[93] In his recent judgment, R. v. K.S.W.P., [2018] O.J. No. 1661, released 6 March 2018, my colleague, Justice R.J. LeDressay, set out the basic principles of criminal court adjudication, starting at paragraphs 8 & 9:
8 The primary and overarching principle in every criminal trial is the presumption of innocence. This is the most fundamental principle of our criminal justice system. To be presumed innocent until proven guilty by the evidence presented in a court of law, is the fundamental right of every person accused of criminal conduct.
9 Interwoven with the presumption of innocence is the standard of proof required to displace that presumption. All of these charges are Criminal Code offences and as with all Criminal Code offences the onus is upon the Crown, on the totality of the evidence, to prove the offence beyond a reasonable doubt in order for K.S.W.P. to be found guilty of any of the offences charged.
[94] Justice LeDressay goes on to refer to the dicta in the Supreme court of Canada by Justice Peter Cory in R. v. Lifchus, [1997] 3 S.C.R. 320, at paragraph 24, on the way trial judges should instruct a jury on the meaning of the criminal standard of proof "beyond a reasonable doubt":
24 Ordinarily even the most important decision of a lifetime are based upon carefully calculated risks. They are made on the assumption that certain events will in all likelihood take place or that certain facts are in all probability true. Yet to invite jurors to apply to a criminal trial the standard of proof used for even the important decisions in life runs the risk of significantly reducing the standard to which the prosecution must be held.
[95] At paragraph 39, Justice Cory summarizes the meaning of "reasonable doubt":
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.
Assessment of Credibility & Reasonable Doubt
Child Witnesses
[96] In the Supreme Court of Canada, in R. v. W. (R.) [R.W.], [1992] 2 S.C.R. 122, Justice Beverley McLachlin summarizes the evolving understanding now found in our case law regarding the manner in which triers of fact should assess the testimony of children, starting at paragraph 24, 25 & 26:
24 The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. Wilson J. recognized this in R. v. B. (G.), [1990] 2 S.C.R. 30, at pp. 54-55, when, in referring to submissions regarding the court of appeal judge's treatment of the evidence of the complainant, she said that
... It seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children.
25 As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child. What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.
26 It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards -- to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate.…
[97] In R. v. G. C., [2006] O.J. No. 2245, Justice Paul Rouleau dealt with a defence appeal from a finding of guilt, where the testimony relied upon was a child witness, where the accused had testified and denied the allegations. Justice Rouleau referred directly to the appellant's argument that the child's description of the allegations lacked sufficient detail to prove the case to the Criminal standard.
[98] The case involved allegations of repeated sexual touching in the genital area of a young girl by her great uncle on as many as thirty occasions. The assaults began when the child was seven. The complainant was nine-years old at the time of the trial.
[99] The complainant first disclosed the assaults to her cousin, who told her the accused was "child abusing" and told her to tell her mother.
[100] A month later, the child was reading a book with her mother and her mother read a word that sounded to her like "child abuse". She then spontaneously asked her mother what child abuse was. Her mother explained to her what child abuse was and the complainant confirmed to her mother that she believed she had been abused by the accused.
[101] However, at trial, the complainant was unable to tell the court many details of the assaults other than she had been repeatedly touched above and under her clothing while her family was visiting the accused residence.
[102] The accused denied the abuse.
[103] At trial, the trial judge allowed the jury, as part of the narrative, to hear the pattern of disclosure and the accused's conversation with her mother, while her mother was reading to her, that she thought she had been abused by the accused.
[104] The defence argument on appeal was that the trial judge was treating the complainant's account to her mother as supporting the truth of the complainant's allegations.
[105] In upholding the trial judge's charge, and the jury's finding of guilt, Justice Rouleau, was responding to the defence argument (b) on appeal:
Did the trial judge consider the complainant's account to her mother as supporting the truth of the complainant's allegations?
[106] Speaking for the court, Justice Rouleau, starting at paragraph 18, stated:
18 In my view, the original complaint to the complainant's mother was properly admitted and falls squarely within the narrative exception to the general rule against self-serving evidence. I add that no objection was taken to the evidence at trial and given the general nature of the complaint made to the mother the potential for it being used for the prohibited purpose of oath helping was limited.
19 In R. v. F. (J.E.) (1993), 85 C.C.C. (3d) 457 at 474 this court set out the parameters of the narrative exception:
Narrative is justified as providing background to the story – to provide chronological cohesion and eliminate gaps which would divert the mind of the listener from the central issue. It may be supportive of the central allegation in the sense of creating a logical framework for its presentation – but it cannot be used, and the jury must be warned of this, as a confirmation of the truthfulness of the sworn allegation.
In the present case, the evidence of the complaint was necessary to understand the unfolding of events.
20 Although properly admitted at trial, the evidence of prior complaint cannot be used as a form of self-corroboration to prove that the incident in fact occurred. It cannot be used as evidence of the truth of the contents. However, the evidence can "be supportive of the central allegation in the sense of creating a logical framework for its presentation", as set out above, and can be used in assessing the truthfulness of the complaint. As set out in R. v. F. (J.E.) at p. 476:
The fact that the statements were made is admissible to assist the jury as to the sequence of events from the alleged offence to the prosecution so that they can understand the conduct of the complainant and assess her truthfulness. However, the jury must be instructed that they are not to look to the content of the statements as proof that a crime has been committed.
The trial judge understood the limited use the limited use that could be made of this evidence as appears from his reasons:
[I]t certainly struck me while the fact that you go and tell somebody that you were molested doesn't confirm the fact that you were molested. I'm struck by the manner or the way it came out, tends to confirm [the complainant's] story – how they were reading this book, and how the thing came up about child sexual abuse.
22 In cases involving sexual assault on young children, the courts recognize the difficulty in the victim providing a full account of events. In appropriate cases, the way the complaint comes forth can, by adding or detracting from the logical cogency of the child's evidence, be a useful tool in assisting the trial judge in the assessment of the child's truthfulness. This was such a case. I would, therefore, give no effect to this ground of appeal.
[107] In the Court of Appeal's view in R. v. G. C., the trial judge's review with the jury of the way the complaint came forth was deemed not to be an error-in-law because it was not being used for the prohibited purpose of oath helping. It was sufficiently explained to the jury by the trial judge to have a limited "narrative purpose".
Reasonable Doubt
[108] In a recent article on the topic of reasonable doubt, entitled "Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment" (Canadian Criminal Law Review; 22 Can. Crim. L. Rev. 31), published in February 2017, Court of Appeal Justice David Paciocco, formally a trial judge in the Ontario Court of Justice, provides a detailed discussion of how trial judges should approach credibility.
[109] In a useful portion of his paper, that is applicable whether or not the impugned testimony is given in the R. v. W. (D.) context, Justice Paciocco discusses "Evidentiary Content and Credibility" in part VI of the paper entitled "Credibility Assessment: "Sources" and "Signs". Justice Paciocco states at page 25:
Naturally, the most dependable way to evaluate credibility is to pay heed to the specific testimony offered, rather than the source or manner of presentation. There is no correct way to organize this evaluation, but I would commend five, non-exclusive and sometimes overlapping factors for disciplined consideration, namely: (a) the plausibility of the evidence, (b) independent supporting or contradicting evidence, (c) the external consistency of the evidence, (d) the internal consistency of the evidence, and (e) the "balance" of the evidence.
[110] In R. v. W. (R.) [R.W.], Justice McLachlin describes the need for trial courts to be wary of the application of what she calls "adult tests" of credibility when receiving the evidence of children. Justice McLachlin refers to a need for sensitivity to the "peculiar perspectives" of children, since children experience the world differently from adults.
[111] Specifically, the former Chief Justice cautions that important details for adults, such as time and place, may be missing from the recollections of a child, to whom these details of an event are less important.
[112] Nonetheless, former Chief Justice McLachlin cautions in her discussion at paragraph 25:
25 As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases.
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.
ANALYSIS
1: The Testimony of the Complainant
[113] The Crown's case in this trial relies upon the credibility and reliability of the testimony of the eight-year-old complainant, who was seven-years-old when the events that form the subject matter of these allegations took place.
[114] I have had the opportunity to observe her both while she was giving her 715.1 DVD Statement to the police on 19 April 2017, and now in this court, at trial, on 23 April 2018.
[115] The complainant presents in these two contexts as a bright, articulate young person, quite self-assured, and able to comprehend, receive, process and respond to the questions posed to her.
[116] Her demeanor as a witness is that of an intelligent witness, somewhat bossy, occasionally pushing back at her questioners when a question seems to her repetitive, not carefully framed, or the answer obvious.
[117] In other aspects, it would appear that her emotional development and maturity is appropriate for her age.
[118] At a threshold level, then, she comes across as a credible and reliable witness.
[119] However, the defence asks this court to conclude that the complainant's testimony is seriously flawed and cannot support a conviction on either charge before this court.
[120] Thus, the evaluation of the testimony of the complainant in this trial directly engages the analytical approach set out above in the case law, as explained in R. v. W. (R.) [R.W.] and R. v. G. C., and Justice Paciocco's recent Law Review article, "Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment".
Credibility and Reliability of the Complainant as a Witness
[121] I would like to turn to some of the areas of the complainant's testimony raised by the defence that, taken as a whole, in my view, render her testimony as unworthy of belief:
(1) Opportunity
There was no opportunity for Mr. Hamid to have committed any act of sexual assault;
(2) Outright Denial of Inappropriate Touching
The complainant did not initially tell her parents that she was assaulted, in fact, she told her parents that "nothing bad" had happened to her;
(3) Absence of Details
The complainant's inability to provide details of the assaults, including:
- Whether she was sleeping when she alleges the assaults took place;
- Whether she was always assaulted in her bedroom, or in other rooms;
- Whether on each occasion that she was assaulted, the assaults were for a long time or a short time;
(4) B.O. was never asked if anything inappropriate had happened
(5) No inquiries were made by H.M., her aunt, or her mother for further details;
(6) How she could be sure, with absolute certainty that her two younger sisters were not assaulted by the accused;
Opportunity
The Complainant's initial Statement to the Police That She was Sleeping When The Alleged Assaults Took Place
[122] The Crown's case in chief was presented to the court by playing the Section 715.1 DVD Statement made by the complainant to Detective Constable Cory Hedgeman and Children's Aid worker Stacey Dinelle at the Gatehouse, located at 3101 Lakeshore Boulevard West in Toronto, on 19 April 2017, approximately one month after the alleged assaults took place.
[123] The DVD Statement was played in court in its entirety, adopted by the complainant, and made part of the trial testimony, as a statutory exception to the hearsay rule. (See Transcript of Examination-in-Chief, 23 April 2018, p. 25, lines 5 to 18, and Exhibits 1A & 1B).
[124] In her Section 715.1 DVD Statement to the police on 19 April 2017, the complainant made the following statements, to Constable Cory Hedgeman and Children's Aid Worker Stacey Dinelle, as to when the alleged assaults took place:
HEDGEMAN: Yeah? So can you just tell us how does it come that this person did this to you. How did it happen?
O.B.: Like what do you mean?
HEDGEMAN: No problem, I'll rephrase my, my apologies. Were your sisters, for example, were they around when this happened? No? Where were they?
O.B.: They're usually (inaudible) in computers too much
HEDGEMAN; They run the computer?
O.B.: No, well they go on computers or play with each other
HEDGEMAN: O.K. so they were kind of occupying each other. O.K. so were they in the same area where this was happening to you or were they somewhere else?
O.B.: In the living room
HEDGEMAN: Oh they're in the living room. And where were you when this was happening to you?
O.B.: Sleeping
HEDGEMAN; Sleeping? Do you know which room you were in?
O.B.: My bed
(Statement, 19 April 2017, pp 32 to 34)
DINELLE: And what would your baby sitter do?
O.B.: Pick us up and take us to school
DINELLE: And where would Aymen go?
O.B.: To his work
DINELLE: To his work, O.K. and when you got home from school, was Aymen there?
O.B.: No
DINELLE: No? Did he sleep over sat your house?
O.B.: No, only like at night
DINELLE: O.K. was that every night?
O.B.: Uhh no, I think yes, yeah because he has to watch us before we go to school
DINELLE: Got it O.K. and when you woke up in the morning, who would be home, who would be in your house (sic.)?
O.B.: Aymen
DINELLE: Aymen O.K. and would he help, umm who would make you breakfast?
O.B.: I do it all the time
DINELLE: You do it all the time
HEDGEMAN: Hehehehe
DINELLE: And who would help you get dressed? Back to you, O.K. and what about your sisters? You would help your sisters get dressed O.K And where was Aymen when you were getting dressed and ready for school?
O.B.: In the living room
DINELLE: In the living room O.K.
O.B.: That's all?
DINELLE: That's all. Do you have any questions for us?
(Statement 19 April 2017, pp. 47 to 49)
DINELLE: So you said that this happened in the morning and that you were sleeping?
O.B.: Yeah
DINELLE: And your sisters were in the living room
O.B.: Yeah, that's where they usually are
DINELLE: That's where they were usually playing right? So can you tell, so what would happen, Aymen would come into your room?
O.B.: Yeah
DINELLE: And then what would happen?
O.B.: And then I would recognize it and then I would wake up and then I'd get angry and then I would leave the room
DINELLE: Can you tell me a little bit more, what do you mean you would recognize it?
O.B.: Like I would know that that person's doing it and then I'd wake up and move away
DINELLE: O.K. so I know maybe this is going to be a little harder to talk about o.k. but it's kind of, it's really important and you're so brave for telling us so, so your sleeping and
O.B.: I recognize a lot of things when I'm sleeping
DINELLE: You recognize a lot of things when you're sleeping, so what would happen, what would Aymen do?
O.B.: Like the same thing that I told you earlier
DINELLE: Hmhm, umm where would Aymen be when he did this?
O.B.: What do you mean?
DINEELE: Would he be by the bookcase, would he be by your sister's bed?
O.B.: Can I show you the drawing?
DINELLE: Yeah
HEDGEMAN: Absolutely, there you go
DINELLE: So where would you be?
O.B.: Where the B is
DINELLE: O.K. can you point to that for me. O.k. so you would be there and then what would happen?
O.B.: This is the person
DINELLE: O.K.
O.B. But that's not how I draw people
DINELLE: That's O.K. O.K. and what would he, would he walk into your room?
O.B.: This way
DINELLE: That way O.K. and then what would happen
O.B.: What I told you
DINELLE: O.K. would he be sitting on the bed, standing on the bed, standing next to the bed. Where was he if you were in bed?
O.B.: How would I know from sleeping
DINELLE: It's a good point. So you would wake up
O.B.: Yeah
DINELLE: O.K.
O.B.: And then I would go out the door
(Statement, 19 April 2017, pp. 54 to 56)
[125] To summarize, in her DVD Statement, the complainant stated that the accused assaulted her while she was sleeping alone in the bedroom she shared with her two younger sisters.
[126] Shortly thereafter, in the courtroom, to clarify when the alleged assaults took place, the Crown asked the complainant to explain her morning routine during the approximately two-plus weeks while her mother was away, and when her father had already left for his morning shift. (Transcript of Examination-in-Chief, 23 April 2018, pages 30 to 32.)
[127] In my view, a detailed look at the answers the complainant gave to the Crown Attorney, when contrasted with her recorded DVD Statement, reveal credibility problems with her initial statement to the police, which, by the provisions of section 715.1, is incorporated as part of her trial testimony.
[128] The complainant testified that she would get up around 6:30 or 7:00 and wake up her two younger sisters.
[129] The complainant testified that she would get her sister's ready for school and then make breakfast:
Q. And you talked about your sisters playing in the living room when Aymen was there. Do you remember that?
A. Yeah.
Q. And it sounds like you got a computer in the living room?
A. Yeah.
Q. And what were your sisters doing in the living room?
A. So in the living room, they usually either play a tag game or any sort of game they learned from kindergarten or they watch like baby shows on the computer.
Q. So sometimes when they wake up, would they go to the living room and play on the computer?
A. Yeah, but first I had to get them ready.
Q. Was that your job?
A. Yup.
Q. And turning your head and trying to remember to that point in time when your mom was away and Aymen was looking after you in the morning, what –do you remember what would happen when he was there in the morning when it was just him and not your dad? So you talked about him waking you up and him touching you. Do you remember that?
A. Yes.
Q. So you're shaking your head and you talked about how it made you feel disturbed and how you would go out of the bedroom because he was touching you. Do you remember that?
A. Yeah.
Q. Now, after that happened, what did the mornings look like with Aymen? What was his – what did he do –
THE COURT: That's a metaphor I don't want you to use. "Look like" does not necessarily help the question.
MS. CULP: Sure.
Q. What did he do in the mornings with you?
A. So like what do you mean?
Q. Well, you talked about the routine when your mom was there, how you would get up, brush your teeth, get your clothes on. So when your mother wasn't there and when Aymen was there during this time period from when your dad was away at work and then the babysitter would come, but Aymen was there taking care of you, what did he do with you in the mornings?
A. So what would happen is I would get my sisters ready and when they are ready and they are playing, it's either sometimes I play with them or I either make breakfast. So if I am playing with them, Aymen is making breakfast.
Q. And was there anything else that he did with you? For example, you talked about getting dressed and brushing your teeth. Did he do any of these things with you?
A. No
Q. Just the breakfast?
A. Yeah
(Transcript of Examination-in-Chief, 23 April 2018, pages 30 to 32)
[130] The complainant told the Crown that Mr. Hamid's only role was to assist the complainant in making breakfast for the girls when the complainant was playing with her sisters.
[131] The complainant, in this sequence of questions and answers, specifically replied in the negative, when asked by the Crown whether the accused helped her getting dressed or brushing her teeth.
[132] In my view, this explanation of the three sisters' morning routine, indicates that the complainant was the person responsible for getting herself and her sister's up and dressed.
[133] This testimony indicates that the accused was not a part of the "wake-up" routine in the girl's bedroom in any way.
[134] The Crown's oral submission was that the defence "wake-up routine" argument does not preclude the accused coming into the complainant's bedroom on days when the "routine" for whatever reason, was not followed.
[135] The Crown further submits that it was entirely possible that the younger sisters could have woken up early on some days, and left their older sister, alone and asleep in the bedroom.
[136] I have concluded that I cannot accept this submission.
[137] In my view, this would require the court to speculate on a circumstance, essential for the Crown's case, for which there is absolutely no supporting evidence.
[138] Although there was a "window" at the apartment, between the time the complainant's father left for work at approximately 5:00, and the 6:30 to 7:00 "wake-up" routine, the complainant's sisters, according to the complainant, were in the bedroom sleeping with her.
[139] Moreover, in her testimony, the complainant stated that she dressed herself, along with her sister's and was in the kitchen cooking or with her sisters in the living room, after the "wake-up" routine.
[140] This is the only evidence I have on this.
[141] In my view, this testimony does not suggest that the accused was likely to have the opportunity to be in the three girls' bedroom alone with the complainant while she was sleeping or lying in her bed, in her bedclothes.
[142] As a result, I am not prepared to accept the Crown's submission on this point.
[143] In my view, this would be pure speculation.
[144] Thus, in my view this initial narrative, in-chief, undermines the plausibility of the complainant's testimony on a material part of her testimony, namely, when the alleged assaults took place.
The Complainant Changed Her Testimony In Cross-Examination As to Whether She Was Sleeping When The Assaults Took Place and where the assaults took place
[145] On these basic questions regarding whether she was asleep, and the room she was in, when each assault began, the complainant changed the answer she gave on her 715.1 DVD Statement, under cross-examination in the courtroom:
Q. The start of this touching in a bad way, were you always sleeping when it started?
A. No
Q. Okay. So you were awake some times?
A. Yes
Q. Yes, okay, and you don't remember whether it was always in your bedroom or other rooms too?
A. No.
Q. Okay. Was it mostly when you were sleeping it started?
A. Umm, I don't think so at least.
Q. You're not sure?
A. I don't think so
(Transcript of Testimony in Cross-examination, 23 April 2018, pp. 77 to 79)
[146] When defence counsel pointed out to the complainant that this was a different explanation than she had given initially to Constable Hedgeman and Stacey Dinelle, in her 715.1 DVD Statement, page 56, she gave this explanation under oath:
Q. No, but I am just saying what she said to you, not anything else, just what she said to you. She said to you was he sitting on the bed, was he standing on the bed, was he standing beside the bed. Do you remember those questions?
A. Yup.
Q. And you said, "I don't know, I was sleeping." Right?
A. But I am also thinking it's either on or beside – standing beside the bed.
Q. That'd what you think today, right?
A. Yes.
Q. But when you talked to the policeman that time – I can play it back for you if it helps you. Do you want me to do that?
A. No.
Q. Okay. Because you were asked when it happened to you, when the bad things happened to you, you were asked whether he was standing on the bed, sitting on the bed, standing beside the bed, and you said, "How would I know, I was sleeping." Right? Even you, I just saw you mouth those words?
A. Mm-hmm.
Q. So you seem to say before that you were sleeping all the time when it started?
A. I know I said that when I was younger, seven-years-old.
Q. Right, right, but today you think differently or?
A. Yeah, because when I was younger, I am way stupider.
(Transcript of Cross-examination, 23 April 2018, pp. 79 & 80)
[147] The changes that the complainant made in her testimony in court, which was not consistent with her initial 715.1 DVD Statement might possibly be the result of the complainant remembering aspects of the alleged assaults that she had initially not focused on while making her initial DVD recorded statement.
[148] However, if I accept this possibility, I am accepting an interpretation of her testimony that competes with the generally accepted perspectives on how judges and juries should understand reliability of testimony, which is that memories fade over time.
[149] This is also an example of what Paciocco refers to as a lack of "internal consistency" and is amplified by the fact that the complainant initially, after watching her 715.1 DVD Statement played in court, testified in court that what she said in her 715.1 DVD was true.
[150] Thus, this pattern of her testimony, clearly documented by the tendering of the 715.1 DVD Statement reflects an internal inconsistency in her testimony regarding two basic questions: whether she was sleeping when the assaults took place and where the accused was when he assaulted her.
[151] These are key facts, and the witness, in my view, did not enhance her credibility when she rather flippantly told counsel that these inconsistencies were because she was "way stupider" when she made her initial statement.
Outright Denial of Inappropriate Touching
The Trial Record regarding the Complainant's Delay in Reporting
[152] It is common ground in assessing the credibility of complainant's in cases where the subject matter is sexual assault, that there is no "correct" pattern of disclosure and reporting, and thus, few inferences can or should be drawn from the mere fact of a delay in reporting.
[153] This is true both in cases involving adult and child witnesses, and the case law includes many examples of where the allegations do not come to light for extended periods of time, sometimes years.
[154] Even in these cases, these delays do not, ab initio, rule out trial courts concluding that the allegations are well-founded and provable to the Criminal standard.
[155] However, by the reasoning approved by the Ontario Court of Appeal in R. v. G. C., supra, where the allegations are made by a child witness, and the defence argues there is lack of relevant detail, it is can perhaps assist the trier-of-fact to look carefully at the pattern of disclosure by the complainant and review the "way the complaint comes forth" to evaluate the complainant's credibility.
[156] Delays in disclosure, recanting, or the changing of material facts over time, are perforce, subject to careful trial scrutiny, and may be the subject of findings that result in adverse trial conclusions regarding the credibility and reliability of the complainant's testimony.
[157] In Cross-examination, the complainant conceded that she not only did not tell her mother that she had been assaulted, but, rather, told her mother that "nothing bad had happened". (See Transcript of Cross-Examination, 23 April 2018, p. 62, lines 20 to 30).
[158] Initially, when giving her recorded DVD Statement to Constable Hedgeman and Children's Aid Worker Stacey Dinelle, the complainant is asked by Constable Hedgeman about why she had not disclosed the alleged assaults to her mother before she disclosed to her Aunt Hoyem, starting at page 40 of the transcript of her DVD statement:
HEDGEMAN: O.K. alright. Uhh did you ever tell anybody about it?
B.O.: I was very scared to
HEDGEMAN: You were? And why were you scared
B.O.: Because I'm a very shy person
HEDGEMAN: Hmhm and what did you think would happen if you told somebody
B.O.: I would get in trouble
HEDGEMAN: You would get in trouble? And why do you think you would get in trouble?
B.O.: Umm
HEDGEMAN: Do you think it's your fault?
B.O.: No
HEDGEMAN: No? Coz I'll tell you right now, none of this is your fault, none of this is your fault
B.O.: I know
HEDGEMAN: Like I told you right at the top, you're not in any trouble whatsoever but see, do you see why we're talking to you. Because this happened and we needed you to tell us, that's why we have to make sure that this never happens to you again or anybody else right? And that's why
B.O.: That's what my mummy told me
HEDGEMAN: Absolute and yeah and I know your mummy cares for you very much O.K. so
B.O.: I'm her favourite daughter by the way
HEDGEMAN: Oh you are hehehehe. Do your sisters know that?
B.O.: No
[159] In Chief, the Crown again attempted to address why the complainant had not told her mother about the alleged assaults.
[160] Early in her questioning by the Crown, the complainant testified that her parents had taught her not to let people touch her in her "private parts". (Transcript of Examination-in-Chief, 23 April 2018, p. 33, lines 1 – 3)
[161] In this first sequence of questions and answers, the complainant stated that she would get angry and leave the room when she was assaulted by the accused:
Q. I am asking you what you meant when you said "I got angry." Were you saying anything? What emotion did you have and were you expressing that emotion in any way?
A. Like, I thought I would get in trouble and then I would get super mad and then I just didn't want to talk to him so I left the room.
(Transcript of Examination-in-Chief, 23 April 2018, p. 34, lines 2 – 8)
[162] After questioning the complainant in some detail about the details of the alleged assaults, starting at page 44 of the transcript, the Crown turned to the topic of the sequence of the complainant's disclosures:
Q. No? Okay. And we know that eventually you talked to the police about what happened to you, right?
A. Yeah.
Q. So you talked in your video statement about being scared and not telling anybody because you thought you would get into trouble. Do you remember talking about that?
A. Yes.
Q. But it looks like eventually you ended up telling somebody or some people, right? You are shaking your head?
A. Yes.
Q. And who did you tell?
A. My aunt H.A.
Q. And when did you tell your aunt H.A.?
A. I am not really sure, but I know it was after my mom came back.
Q. Okay, and how did it happen that you came to tell your aunt H.A.?
A. So, umm, like, ah, she knew my mom was away so then she asked me and stuff, she asked me what we did at that time and then I just told her.
Q. Okay, and what was your aunt asking you about? Do you remember?
A. She was – I think I remember some. She asked me like did anyone do anything to you and stuff like that and she just wanted to make sure we were okay.
Q. Okay, and do you remember where you were when she asked you?
A. In her house.
Q. And who was the first person you told?
A. Her.
Q. Your aunt, okay. And what about your mom, do you remember when you told your mom?
A. Yeah, so what happened is after I told her, we were going to Chuck E Cheese so she called my mom and dad there and then that's when she told them at Chuck E Cheese and then when we got home, my mom talked to me about it and stuff.
[163] At this point, Court broke for lunch, but after the lunch break, the Crown returned the witness to the question of why she didn't tell anyone before she told her Aunt H.A.:
Q. So first of all, you talked about – you were talking about the people that you told before we went on our lunch break. Do you remember that?
A. Yes.
Q. And you also testified that you thought you would get in trouble if you if you would tell anybody. Do you remember saying that?
A. Yes.
Q. Why did you think you would get in trouble if you told somebody?
A. Because like I feel like I didn't do anything.
Q. Right, so why did you think you would get in trouble if you talked about it?
A. I don't know, because my parents warned me and tell me then it actually happened. That's why I thought I would get in trouble.
Q. Okay, and why didn't you tell your dad?
A. It's because I was too scared and nervous.
[164] The initial assertion by the complainant to the Crown on her pattern of disclosure was not that she had any fear of retaliation from the accused.
[165] In her DVD Statement and her trial testimony she does not testify to any threats or other behaviour by the accused that caused her to fear for her safety.
[166] In her DVD Statement to Detective Constable Hedgeman, her initial explanation as to the source of her fear of disclosing was:
Because I'm a very shy person
[167] When Constable Hedgeman pursued this answer, and asked her what might happen to her if she disclosed that she had been assaulted, she went on to say:
I would get in trouble
[168] In this reference in her DVD Statement and in her initial trial testimony, the complainant never would say who or what would cause this trouble.
[169] In cross-examination she testified that each evening when her father came home from work he would engage his daughters in a discussion about how their day went, and their personal safety from unwanted touching.
[170] In cross-examination the complainant testified that she told her father that nobody had touched her improperly but qualified that by stating that she didn't disclose anything to her father because she was "scared."
[171] In cross-examination, on 23 April 2018, the complainant agreed with her father's DVD Statement of 2 May 2017 and later testimony that during this period, when he was looking after his daughters, when he returned home at night, he would specifically talk to them about their days, including personal hygiene and the safe use of washrooms, starting at page 60:
Q. And when your mom was away, every night when he came home from work he came home and picked you guys up from the babysitter usually, I think?
A. Yes.
Q. He would have a talk with you guys and make sure that no one touched your privacy, right?
A. Yup.
Q. And you told him nobody did, right?
A. Yeah, but I was scared.
Q. You were scared. And your dad also said that – he talked about details and I don't want to make you feel uncomfortable, okay, and if you're too uncomfortable, you tell me, all right?
A. Okay.
Q. He said that he told you girls about, you know, using the washroom at school and hoe to keep yourselves clean in your private area?
A. Mm-hmm.
Q. Yes?
A. Yup.
Q. Okay, so you could talk to him about it, right?
A. Yeah.
Q. And you called him kind and intelligent and awesome?
A. Yeah.
Q. Yeah, because he is, right?
A. Yup.
(Transcript of Cross-Examination, 23 April 2018, pp. 60 & 61)
[172] Again, when her mother returned home from Dubai, and specifically addressed the question of "anything bad" happening to the complainant, the complainant testified she did not just fail to disclose, she actively asserted the opposite that "nothing bad had happened."
[173] From her answers in her examination-in-chief, if she was afraid to tell anyone, it would appear, on the evidence, that is was not because of fear of retaliation by the accused.
[174] Again, without concluding at this point that the allegations are valid, this fear of "getting into trouble" is often closely linked in young victim's testimony to a sense of personal guilt or shame in sexual assault cases.
[175] This fear of disclosing is not an uncommon reaction in these cases, especially in the context of young victims who are still under care of their parents.
[176] To be clear, this sense of guilt or shame is unrelated to and has no necessary connection to any misconduct or blameworthy behaviour on the part of a complainant or the person alleged to have assaulted the complainant.
[177] In most circumstances, it is nothing but a very pernicious aspect of victimization in sexual assault cases, where such allegations arise.
[178] However, no matter how I attempt to evaluate the complainant in this trial's unwillingness to disclose, is still troublesome.
[179] The complainant in this trial, contrary to the circumstance of the young complainant in R. v. G. C, had been specifically warned by her parents about the kind of abuse that involved touching her "privacy" and specifically asked if such touching had taken place.
[180] This contrasts with the complainant in R. v. G. C, who did not appear to initially comprehend that what she had been subjected to by her great uncle was abuse.
[181] At the time of the alleged assaults. O.B. she was staying with her father, with whom she is on very good terms and had the opportunity to speak to him, without the knowledge of the accused during the entire period of the alleged assaults.
[182] Moreover, from all the evidence I have heard, she has a very good and close relationship with her mother.
[183] In my view, the fact that she did not initially disclose the alleged assault to her father or her mother goes to the plausibility of her testimony and damages her credibility as a witness.
[184] Moreover, it lends support to the possible inference that the alleged assaults did not actually take place.
Absence of Details
[185] In this category, I am including areas where there either were not details, or where there was internal inconsistency regarding relevant details.
[186] At trial, reference to the relevant details of the allegations of misconduct are the way a "trier-of-fact" can assess whether a witness is believable.
[187] Where material details are lacking, "triers-of-fact" may draw an adverse inference as to the reliability of the testimony. See the Reasons of Justice Ivan Bloom in R. v. A., [2018] O.J. No. 1231, at paragraph 250:
250 The complainant's evidence lacked detail of the events concerning which she testified. I have shown this characteristic in her evidence in my summary of it above; one example related to the timing of the first alleged assault. There are many possible explanations for this lack of detail; I caution myself against an inference based on stereotyping or myths concerning victims of sexual assault. Nevertheless, the lack of detail weakens the evidentiary basis for a finding of guilt because of the absence of convincing evidence.
[188] As set out above, by the decision of the Ontario Court of Appeal in R. v. G. C., [2006] O.J. No. 2245, this general principle regarding the need for details to test reliability must be qualified when the testimony is that of a child witness.
[189] However, as set out above, in my discussion of the lack of initial disclosure to her parents, I have concluded that the reasoning in R. v. G. C, does not assist in overcoming the complainant's inability to provide or be consistent on relevant details in her trial testimony.
[190] Moreover, Justice Paciocco speaks directly to this point in his article, "Doubt about Doubt", supra, at page 27, when he states, under "inconsistencies":
In contrast, occasional inconsistencies on peripheral matters-- things not material in law to the outcome, or not lynch-pin details of the narrative offered by the witness--are less likely to be important. This is because the brain is not a video-recorder, and honest people can err on secondary matters because they may not have been of sufficient interest at the time to observe or retain. This is particularly so for children who may not be concerned with things that an adult would note and understand. This, coupled with the human tendency to fill blanks in a narrative by relying on honest inferences about what must have happened will mean that some inconsistencies are unimportant.
[191] In my view, the inadequacies of the complainant's testimony cannot be overcome by the considerations set out by Justice Paciocco.
[192] I have concluded that the elements of the complainant's testimony raised by the defence, taken as a whole, render her testimony problematical:
- The complainant's inability to provide details of the assaults, including:
- Whether she was always sleeping when she alleges the assaults took place;
- Whether she was always assaulted in her bedroom, or in other rooms;
- Whether on each occasion that she was assaulted, the assaults were for a long time or a short time;
[193] Let me then summarize how I have reached this conclusion.
Whether she was always sleeping when she alleges the assaults took place
[194] I have already reviewed the complainant's evidence on this point, is lacking, in these reasons, in paragraphs 125 to 144, above.
Whether she was always assaulted in her bedroom, or in other rooms
[195] Again, this detail, and its inherent problems, is discussed under the heading of "Opportunity", in paragraphs 125 to 151, above.
Whether the assaults were for a long time or a short time
[196] In her initial 715.1 DVD Statement, the complainant could not tell Detective Constable Hedgeman the duration of the individual assaults by the accused:
HEDGEMAN: Don't know? How long would he do that for? Like when he came into your bedroom, how long would he touch you for? Do you remember?
O.B.: I don't know
HEDGEMAN: Was it a short time or a long time?
O.B.: I just said I don't know
HEDGEMAN: You don't know, O.K. I just, I just have to ask O.K. I know its icky to talk about and I have to apologize but as Stacy said you're very brave and I have to ask you this question
O.B.: Thank you
[197] When the complainant was initially asked by defence counsel to confirm that she had told Detective Constable Hedgeman that she couldn't recall the duration of the individual assaults, the complainant testified:
I never said I didn't know
(Transcript of Cross-Examination, 23 April 2018, page 81, line 23)
[198] When defence counsel had the portion of the 715.1 DVD Statement set out above played back to the witness, acknowledged to the Court that, indeed, she could not say whether the individual assaults were for a short or long period of time.
[199] In my view, the mere lack of clarity on the length of each individual assault does not, determine much, with respect to the credibility of the complainant.
[200] The complainant was not careless with her initial statement to the police, but simply stated she did not know.
[201] In this regard, it is important to remember the specific reference in former Chief Justice McLachlin's judgment in R. v. W. (R.) [R.W.] that details such as "time and place" may be missing from the recollection of a child witness.
[202] Although the former Chief Justice was speaking in general terms, the point is that details such as time and place that are important to adults, may not be important to the child, in their memory of events.
[203] However, in my view, the R. v. G. C. mandated review of the "way the complaint come's forth" does not assist in resolving the issue of her credibility in her favour.
[204] The complainant's initial assertion that she was sleeping when the assaults took place, her changing of her evidence at trial on these issues detracted from the strength of her evidence.
[205] Moreover, her positive assertion in court that she had not said she didn't know the duration of the assaults, is also a concern, in that she had just watched and adopted her DVD Video statement, in which she had said the exact opposite.
[206] Next, I wish to turn to the complainant's testimony of the likelihood that her sister's might have also been assaulted by the accused.
How she could be sure, with absolute certainty that her two younger sisters were not assaulted by the accused
[207] In her initial 715.1 DVD Statement on 19 April 2017, at the Gatehouse, Detective Constable Hedgeman asked the complainant whether she knew if her sisters had been assaulted by the accused. The transcript of those questions and answers begin at middle of page 44:
HEDGEMAN: Absolutely, umm so I mean unfortunately that happened to you and I'm sorry that that happened to you o.k. but again we'll make sure it doesn't happen anymore, do you know if your dad's friend was doing the same thing to your sisters?
O.B.: No he didn't
HEDGEMAN: No he didn't? Why do you say he didn't?
O.B.: Because I know so
HEDGEMAN: Because you know so?
O.B.: Yeah
HEDGEMAN: Is there a reason why, like I know you maybe, did you ever see it happen?
O.B.: I have no reason (inaudible)
HEDGEMAN: You just know it didn't happen?
O.B.: Yeah
(Transcript of Complainant's 715.1 DVD Statement, 19 April 2017, pp. 44 & 45)
[208] At trial, immediately after the exchange during cross-examination regarding whether she now was asserting that she wasn't sleeping when she was assaulted, and where the accused had been located while committing the assaults, she was asked by defence counsel how she was certain her sisters had not also been assaulted by the accused:
Q. Okay, And the policeman also or it might have been Stacey, I can't remember which, but one of them asked you whether your sisters were touched in their private area. You remember?
A. Yup.
Q. And you said no?
A. Yup.
Q. And the policeman asked how do you know, right?
A. And I said because I know.
Q. Because you know, and then he asked you a third time and again you didn't know, right? You still don't know – sorry, you would still say now that your sisters weren't touched, right?
A. Yeah.
Q. That would be what you would say today?
A. Yes.
Q. Okay. Back then you gave the statement to the police, how would you know your sister – sisters were not touched badly?
A. Just because I said because they are always in the living room.
Q. Okay.
(Transcript of Cross-Examination, 23 April 2018, page 80, line 10 to 32)
[209] In my view, this testimony might suggest to the reasonable observer that the complainant was piecing together her answers regarding the possibility of her sisters being assaulted to make her testimony appear coherent, after repeated questioning in two separate recorded statements, one in her initial DVD Statement and the second, at trial.
[210] However, from another perspective, in my view, it is very damaging for the witness, as to her credibility.
[211] Again, although this testimony, on its own, might seem innocuous, coming as it does from a young person.
[212] Arguably, any witness might be forgiven some exaggeration in the heat of the moment, when testifying.
[213] Although, in my view, it does not necessarily lead to the conclusion that she is "making things up", it does suggest to me perhaps a willingness to guess when arriving at an answer, and then continue to defend that answer, against her admitted lack of knowledge.
[214] This testimony clearly speaks to the "balance" of the complainant's evidence, in that she is trying to maintain a logically unsupportable assertion.
[215] This, in my view, undermines her reliability as a witness.
[216] In my view, however, this testimony, taken with the other factors I have listed above, creates a more serious concern with respect to the Crown's case.
[217] Her "certainty" that her sisters were not assaulted by the accused, would also at least suggest a possible inference far more favourable to the accused, namely, that the complainant "knew" her sisters were not assaulted, because she also knew she was not assaulted, for the reason that she was, indeed, making it up.
Motive to Fabricate
[218] This brings me to the final argument placed before the court by the defence.
[219] The "motive to fabricate" alleged in this trial was presented by the defence as potential animus on the part of the child's mother and her sister towards the accused.
[220] This animus was not attributed to the complainant.
[221] Rather it was attributed towards the two questioners, who, if I understand the argument, were "fishing for dirt" regarding the accused, because he had once clandestinely dated the child's mother.
[222] The defence allegation is that the child's mother and her sister, by failing to ask or confirm the details of her allegations were somehow pursuing a plan to "manipulate" or encourage the complainant to make allegations against the accused of sexual assault. (Defence Oral Submissions in support of this line of questioning, Transcript of Cross-Examination of Crown Witness H.A., 24 April 2018, at pp. 218 & 219, and Written Submissions, received by e-mail, 17 May 2018, at page 19, starting at paragraph 43 to 49)
[223] In the written submissions, defence counsel submitted that neither the complainant's Aunt, H.A., nor her mother, H.M., ever made further inquiries of the complainant regarding the details of her alleged assault by the accused.
[224] Defence counsel also writes that the two women never questioned the other two girls regarding whether they were assaulted.
[225] The inference the defence would like this court to make is that these factors suggest a lack of a genuine or sincere concern by the two women about the substance of the allegations.
[226] To be clear, the defence called no evidence on the sources of this animus, and the defence assertions, when put to the mother and Aunt were denied.
[227] In my view, this allegation is not supportable or pursuable because of the lack of sufficient trial evidence on this point.
[228] In my view, if anything, the two women's testimony that they did not pursue the details of the allegations with the complainant, or question the two younger girls, if believed, is an appropriate and commendable response.
[229] Moreover, I have concluded that on the testimony and evidence at trial that I do accept, there is a lack of credible and reliable evidence on the allegations before the court.
[230] In my view, the absence of details, the logical difficulties in the complainants' narrative, and her lack of disclosure to her parents have caused me to conclude that it would be unsafe to convict the accused on the testimony of the complainant.
Conclusion
[231] For the reasons set out above I have concluded on all the evidence the Crown has not proven its case beyond a reasonable doubt.
[232] In the result, I will dismiss both counts before the court.
Released: 29 May 2018
Signed: "Justice Paul H. Reinhardt"