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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 212, 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
Ontario Court of Justice
Date: November 16, 2018
Court File No.: Halton 17-225
Between:
Her Majesty the Queen
— AND —
A.S.
Before: Justice Lesley M. Baldwin
Heard on: June 4th, June 5th and August 3rd, 2018
Reasons for Judgment released on: November 16, 2018
Counsel:
- M. Godinho — counsel for the Crown
- K. Srodulski — counsel for the defendant A.S.
BALDWIN J.:
Charges
[1] A.S. is charged that between the 1st day of June in the year 2016 and the 31st day of December 2016, both dates inclusive, at the City of Burlington, he did for a sexual purpose touch F.S. a person under the age of sixteen years directly with a part of his body, to wit: his hands, contrary to section 151 of the Criminal Code;
[2] AND FURTHER that between the 1st day of June in the year 2016 and the 11th day of January 2017, both dates inclusive, at the City of Burlington he did commit a sexual assault on F.S., contrary to section 271 of the Criminal Code.
[3] The Information was sworn on January 23rd, 2017, and there was a waiver of the limitation period so the Crown could proceed by way of summary conviction.
Background
[4] A.S. was born April 25, 1991 and was 25 years of age at the time alleged in the Information. (This fact I obtained from the Information as it was not brought out in evidence.)
[5] F.S. was nine years of age during the time period alleged in the Information. Her birthday, which came out in re-examination, is December 21st.
[6] A.S. was the boyfriend of F.S.'s older sister, T. T. and A.S. lived together, first at her parent's house with F.S., and later at an apartment in Burlington. T. had a 3-year-old son named D. that A.S. referred to as his son in his statement to the police. At the time of F.S.'s disclosure to the police, A.S. and T. had been together for 2 years.
[7] The evidence in this case consisted of the video-taped statement F.S. gave to Constable Ross Amore of the HRPS on January 12, 2017 (pursuant to s. 715.1 of the CCC) and her testimony at trial with the aid of a Victim Witness Support person and CCTV.
[8] A voluntariness voir dire was held on the statement that A.S. gave to Constable Ross Amore, also on January 12, 2017. I ruled that the 74-page statement had been proven to be voluntary to the bottom of page 54.
Video-Taped Statement of F.S. – January 11, 2017
[9] The Transcript of this statement is 45 pages in length.
[10] There are 123 "indiscernible"s noted by the transcriber. Some of those go to the heart of the allegations themselves. The statement is therefore hard to read and the video-tape does not clarify matters. I have read the transcript many times and this is what I 'discern' from it:
[11] F.S. was 10 years of age and in Grade 5.
[12] She is close to her big sister, T., and her baby son, D. They live with A.S.
[13] F.S. would go over to see T. and play with D. sometimes on the weekends and sometimes during the week. Her mother would drive her over there.
[14] F.S. would sleep over sometimes. She would sleep on a chair in the living room and D. would sleep on a bunk bed in the living room.
[15] A.S. and T. would sleep in the bedroom in this one-bedroom apartment.
[16] When asked if there was anything she did not like when she was over there, F.S. replied "Mm,mm A.S.…Because he touched me inappropriately…He touched me [indiscernible] under where my boob, he [indiscernible] touches here and there." (p. 18)
[17] Officer Amore clarified that F.S. is saying that A.S. touched her "behind" in the summer when they were watching a movie in the bedroom when T. left the bedroom to change D.'s diapers.
[18] A.S. touched her on the bed with his hand. She was sitting against the wall and A.S. was "sitting – I was [indiscernible], he was on his [indiscernible]…He went behind me [indiscernible]" (p. 22)
[19] A.S. was wearing long pants and she was wearing [indiscernible] and his hand went under her underwear and touched her bottom. (p. 23)
[20] At the same time he touched her breast under her clothes and he [indiscernible].
[21] Officer Amore then uses the phrase – "and he squeezed your breast. What happened next?" The rest of this page is [indiscernible] (p. 25)
[22] F.S. said that, "He did it twice, it was [indiscernible] he was kissing me [indiscernible], I don't like it…He puts his tongue in my mouth….And bites my lip." (pp. 27, 28)
[23] F.S. said that it happened 2 months ago before Christmas, in October "Or [indiscernible] around there…It was during the week…it was on the weekend. It was, like, I went over Friday and I stayed over." (p. 29)
[24] It was the same as the last time. They were all in the bedroom on the bed watching a movie. T. left the room to change D. and A.S. kissed her. "He says 'Come [indiscernible]' he whispers in my ear, [indiscernible] he pulls me closer to him." (p. 31)
[25] She cannot remember if A.S.'s mouth was open or closed. She felt scared.
[26] She did not tell T.
[27] "He [indiscernible] breast twice…The last time he did it was in summer." (p. 36)
[28] Constable Amore asked, "Okay. You had mentioned that he had also touched parts of you – your bath suit covers. Is it – is there any other parts of your body that – that he touched?"
[29] F.S. had not mentioned a bathing suit up to this point in the interview. Her recorded answer is, "He touched me right here (indicates) [indiscernible].
[30] He did it only once in the summer. (p. 37)
[31] It happened in the bedroom when they had been all watching a movie and T. left the room to change D.
[32] It was her vagina that he touched.
[33] "[Indiscernible] I was wearing jeans [indiscernible] that's when he touched [indiscernible]" (p.39)
[34] In response to the leading question was it under your jeans but over your underwear, F.S. 'nodded her head yes'. F.S. told A.S. to stop.
[35] She told her mom and dad what happened yesterday (Tuesday, January 10, 2017).
Testimony at Trial
[36] She is now 11 years of age and in grade 6.
[37] She lives with her parents, T. and her nephew, D.
[38] F.S. testified that when T. lived with A.S. she would go over to their apartment as much as possible, around 3 times a month. She would sleep over there when she went on the weekends.
[39] F.S. repeated what she said to Officer Amore in the video-taped statement.
[40] When asked by the Crown why she did not disclose to T. what had happened, F.S. testified, "At the time I found out T. had some mental issues, so telling her things would make her sad forever, and I did not want that…My mother told me." (p. 14)
[41] When asked why she did not tell her parents, F.S. testified that she was scared that they would not believe her. She told her parents because she did not want A.S. to do that to her again.
[42] F.S. testified that nobody told her what to say to the police or what to testify to in court.
[43] In cross-examination, F.S. testified that she was always at the end of the bed when the four of them were watching movies in the apartment bedroom.
[44] F.S. agreed that sometimes A.S. would tickle her and D. on the couch and she was okay with that as long as D. and T. were around.
[45] When she went to the apartment she would smell weird things. Now that she is older she thinks that A.S. was smoking drugs. After he smoked on the balcony, he would be calmer and relaxed.
[46] Defence counsel tried to clarify how many times and when she had been touched by A.S.
[47] On page 35 through 37 of the transcript various answers are given as follows:
A. What he had done had been one day he touched my breasts and my buttocks, and the other day he touched my vagina, and then the next day he kissed me.
Q. Okay. So, this is where I'm a little bit confused, F.S., is you've given us a bit of a different pattern, if you will. Okay? That's what I want to be sure of because when Constable Amore was questioning you, and, and I know it's been a while, you're saying that the bum and the breasts, same incident, vagina, was all of that at one time, we couldn't understand, and then he kissed you and you nod your, nodded your head. Are you now telling us that one day he touched your breast and buttocks, then another day he touched your vagina, then another time he kissed you?
A. No, on the same – once he touched all of it, and then the other day he just touched my vagina, then the next day he kissed me.
Q. I think I've got that straight. I think I've got the calendar right now. And again, do you remember when these – before I continue again, so, once you said he touched all your parts, so would that be your bum, your vagina, and your breast?
A. Yes.
Q. Okay. Then you said another time, you said it was the next day or how long after did he just touch your vagina?
A. So, I'm usually there for a sleepover, so on the first day, that's when he touches everything, and then on the next day, that's when he touches my, that's when he just touches my vagina.
Q. Okay. And then what about the kissing?
A. Kissing is on a whole other sleepover.
Q. Okay. So, we're talking about three separate incidents then?
A. Technically, yes.
Q. And again, I know this is difficult for you to have to relive and remember, but do you remember what happened first?
A. My buttocks.
Q. Okay, but is – so, the first incident, are you saying that he touched not only your buttocks or your bum, but also your breasts and your vagina on one, on one shot?
A. Yes. He touched my vagina after the movie.
Q. Okay, and so the first time you're saying this happened, do you remember what, what, was it hot outside, was it cold outside, was it fall, was it spring?
A. It was before Christmas.
Q. So, the first time was before Christmas?
A. Um-hum.
Q. And that was the buttocks?
A. Yes.
Q. Okay. But from that same incident, that's where you're saying that he also touched your breast, and he touched your buttocks, and he touched your vagina?
A. An hour later, yes.
Q. Okay. Then the second one you state that he just touched your vagina. Was that, was that after the movie that you're talking about, or another specific date?
A. After the movie.
Q. Okay. And when did the kissing happen?
A. Kissing happened another sleepover.
Q. Do you remember again if it was hot or cold outside, winter, summer?
A. No.
[48] Defence counsel returned to these areas in other parts of the cross-examination but the answers did not clear up the confusion. (Reference pp. 39, 40, 41, 42, 43)
[49] F.S. was aware that A.S. had been kicked out of her parents' basement by her father because he did not clean up after himself and that the relationship between A.S. and her parents was not good.
[50] F.S. also thought that A.S. was rude and was not helping when he did not move the bunk bed for D. into the apartment.
[51] F.S. testified that she found out her sister had mental health problems about a month before A.S. started touching her. (p. 44)
[52] In re-examination, F.S. testified that she was aware that her parents didn't like A.S. She knew there must have been a reason, so she would avoid him.
A.S.'s Statement to Constable Amore – January 11, 2017
[53] A.S. states that T. had learned from her mother last evening that "Christmas time area I may or may not have done something inappropriately with her sister."
[54] A.S. told the Officer that he had been kicked out of T.'s parents' house because her father was upset that he smoked marijuana. They would tell T. that he was a no-good drug addict because he smoked marijuana and when he would get a job they would say that his job was no good and that he needs to get a better job. He knew that her parents did not want T. to be together with him.
[55] He and T. lived in a shelter and then at the Quality Inn before they got the apartment in Burlington in September or October of 2015.
[56] A.S. stated that F.S. stayed over once or twice, but T. was always around.
[57] F.S. would sleep in the living room/bedroom area with D. and he would sleep with T. in the bedroom.
[58] He thought he had a good relationship with F.S. "Like she'd wrestle around with me and D. once in a while. Like I'd be careful 'cause they're both small and I'm bigger kinda deal. And she'd always be happy when I came over or said hi…" (p. 20)
[59] F.S. would give hugs and kisses to him, and A.S. guessed that F.S. clued in that it was kind of awkward because she was not his real blood sister. It was just little pecks on the cheek.
[60] The first weekend that F.S. came over he, T. and D. were horsing around in the living room and T. called out "Kisses" and F.S. turned her head the wrong way and he accidently kissed F.S. on the lips with closed lips. F.S. said that it made her uncomfortable. He apologized for that right away and told her it would never happen again. Things were fine after that. This happened at the end of November.
[61] He would wrestle and tickle the kids and make them laugh.
[62] A.S. stated that when he heard about the allegation yesterday, he called F.S.'s mother this morning on his way to work and explained and told her "We do tickle, we do play fight a little bit, so if maybe accidently anything happened, I wasn't aware of, or I would have stopped right away and said what I needed to say." (pp. 28, repeated pp.29, 30, 31, 32)
[63] A.S. stated that he did not like to change D.'s diapers and that T. would do that. He would be alone with F.S. in the bedroom for two minutes when T. changed D.'s diapers. F.S. always stayed at the end of the bed and he stayed in his spot where he sleeps.
[64] The last time he was with F.S. and T. was at her parents' house for Christmas. He gave F.S. a hug which he did not think was inappropriate. T. was with him the whole time.
[65] A.S. denied biting F.S. on the lip: "That I wouldn't do. I don't even do that to my girlfriend. I find it weird." (p. 39)
[66] A.S. denied putting his tongue in F.S.'s mouth: "No, that's not what I would do either. She's 10 years old, that would be statutory rape in a way." (p. 39)
[67] When the Officer pressed further, A.S. stated, "Well it's not true. And I will tell you 'til I'm blue in the face that it's not true….because I care about her as like a half/sister/step-sister kinda deal. Not like a full sister, but I would protect her from harm" (p. 40)
[68] When asked why F.S. would be saying these things, A.S. speculated that she might be agreeing with her dad in that he is not a good person. "Like I really don't know". (p. 39)
Position of the Parties
[69] The Crown submits that they have proven the case beyond a reasonable doubt.
[70] The Crown submits that F.S. has provided a consistent account of where she was sexually touched and any inconsistencies are minor and are to be expected of child witnesses.
[71] The Crown submits that F.S. has explained her failure to disclose to her big sister T. and her parents.
[72] The Crown submits that F.S. had no issues with A.S. before the touching started and that there was no evidence that anybody influenced her in what to say to the police or the Court.
[73] The Crown submits that A.S.'s statement corroborates F.S.'s version of events in that he acknowledged that he would be alone with her at times for maybe 2 minutes when T. was changing D.
[74] Further, A.S. admits to playing tickling games with D., T. and F.S. and at one point accidently kissing F.S. on the lips with a closed mouth.
[75] The Defence submits that F.S.'s inconsistencies were not minor. For example, F.S. could not be specific about the alleged kiss; when asked if A.S. kissed her with an open mouth and tongue or a closed mouth, F.S. said she was not sure and also that she did not remember.
[76] The Defence submits that F.S. had a motive to fabricate her evidence. She knew her parents did not like A.S. and did not want him around T. F.S. testified that for this reason she tried to avoid him.
[77] The Defence submits that A.S. was being honest in his statement to the police. He admitted his drug use, the fact that T.'s parents did not like him and the accidental kiss during a game played by all 4 of them together, for which he immediately apologized and told F.S. it would not happen again.
Assessment of the Evidence
I. How to Assess the Evidence of Child Witnesses
[78] It is now appreciated that it is wrong to apply adult tests for credibility and reliability to the evidence of children. Their evidence should be approached on a common sense basis, taking into account the strengths and weaknesses in the particular case.
[79] The authorities identify four concerns about the evidence of children, each due to the mental immaturity of the child:
i. the capacity to observe;
ii. the capacity to recollect;
iii. the capacity to understand questions and frame intelligent responses; and
iv. the moral responsibility of the witness. (R. v. Marguard, [1993] 4 S.C.R. 233; R. v. Tennant and Maccarato (1975), 23 C.C.C. (2d) 80 (Ont. C.A.))
[80] The capacity to observe involves an ability to perceive events as they occur, as well as an ability to differentiate among actual perception, imagination, information from others and beliefs formed otherwise. The capacity to recollect refers to the capacity to maintain a recollection of actual perceptions of a prior event, and the ability to distinguish those retained perceptions from information provided by or derived by other sources.
[81] The weight to be attached to a video-tape, which is admissible under s. 715.1 for proof of the truth of its contents, is for the trier of fact. In assessing the weight to be assigned to the video-tape, the trier of fact should consider all factors relevant to trustworthiness, including:
i. motive, if any, of the witness to lie; and
ii. pressures, internal or external, that might prompt the witness to put a gloss on the truth.
[82] The trier of fact must consider the quality of the child's evidence with reference to all the other evidence in the case. (In this case, the quality of the video-taped statement was poor – see para. 10.)
[83] (Reference Watt's Manual of Criminal Jury Instructions, Second Edition [2015] p. 369 through to p. 377)
Delayed Disclosure
[84] The Supreme Court of Canada in a number of cases has urged courts to be mindful that children, for a variety of reasons, are apt to delay disclosure. What is or is not reasonable depends entirely on the circumstances of each case. (Reference R. v. L. (D.O.) (1993), 25 C.R. (4th) 285 (S.C.C.))
Narrative
[85] "Narrative" has become a common technique for presenting evidence about previous complaints by sexual assault complainants, particularly children. In R. v. F.(J.E) (1993), 26 C.R. (4th) 220 (Ont. C.A.), the Ontario Court of Appeal was of the view that the trier of fact must have the "chronological cohesion" of a full account in order to understand the case.
[86] "To qualify as narrative, the witness must recount relevant and essential facts which describe and explain his or her experience as a victim of the crime alleged so the trier of fact will be in a position to understand what happened and how the matter came to the attention of the authorities."
[87] In the case before me, there was no prior complaint. However, the narrative about the disclosure to the parents the day before the child gave her statement to the police and the same day that the accused was arrested and gave his statement to the police, had gaps in it that I could not follow.
[88] There was little follow-up to F.S.'s statement that she did not tell her parents before because she was afraid they would not believe her. She said she had never lied to them before and had never been in trouble for lying to them in the past.
[89] There was little context to the questions about why she did not tell her big sister T. F.S. said that one month before the events in question started happening, her mother had told her that T. was mentally ill and if she heard sad things they would make her sad forever as the reason for not telling her. T. was right there when the events in question occurred. I find it difficult to accept this explanation standing on its own.
[90] If indeed F.S.'s mother told her that T. was mentally ill when she was 9 years of age, why would this mother drive F.S. over to A.S. and T.'s apartment and let her stay for weekend sleep-overs? Why would this mother allow young F.S. to be baby-sat by A.S. if she thought he was a no good drug addict?
[91] It is realistically possible that F.S.'s parents did influence negative feelings about A.S. in F.S.
[92] There was no evidence as to how the disclosure to the parents occurred. Were the parents talking about A.S. at the time? Did they ask her leading questions? Did something happen at school that prompted a discussion about uncomfortable touches? I do not know.
[93] I also do not know when certain events are alleged to have occurred. Although precision is not necessary, F.S. could not tell the officer or the Court what year or season it was. The chronology of events shifted and incidents which at one point were one act only, became a number of acts on the same day. I could not follow the chain of events because there wasn't one. (Note: The time periods in the 2 charges before the Court is also different with no explanation given.)
[94] I have no reason to disbelieve the statement that A.S. gave to the police.
[95] A.S. said that he may have accidentally touched F.S. during tickling and horseplay and at all times T. was right there. There is nothing in his inculpatory statement that leaves the door open to intentional sexual touching.
[96] I find it realistically possible that F.S. was influenced by her parents to think negatively of A.S.; that she was honestly mistaken about the nature of the accidental touching during tickling games when T. and D. were present and that her evidence is not credible or reliable given all the gray areas that emerged in the evidence presented at this trial.
FINAL DECISION
[97] The Crown has not established the guilt of A.S. beyond a reasonable doubt and findings of not guilty are entered on both counts.
Released: November 16, 2018
Signed: Justice Lesley M. Baldwin