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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 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: 2019-10-30

Court File No.: 3911-998-19-C391

Between:

Her Majesty the Queen

— and —

A.C.

Before: Justice Gilles Renaud

Heard on: September 23, 27 and October 4, 2019

Reasons for Judgment released on: October 30, 2019

Counsel:

Michael Purcell — Counsel for the Crown

Ian Paul — Counsel for the accused

Judgment

J. Renaud: Orally

Introduction

[1] There is no legal controversy in this case as to the applicability of Code provisions. If the Court accepts the testimony of either (or both) of the two young complainants, the Crown will have discharged the heavy onus it bears to demonstrate that the defendant is guilty of the offences he faces.

A Review of the Testimony of the Witnesses

A Review of the Testimony of Ms. K.

[2] She is the older of the two sisters who testified. She was 6 at the time of her testimony and was younger by one to two years at the time of the allegations, the precise time being immaterial in this particular prosecution.

The police interview of Ms. K.

[3] The Court was provided with a transcript of the testimony of this young witness, during her interview with Detective Constable S. Van den Oetelaar, on January 24, 2019.

[4] The questions put by the officer were fair, short in nature, focused, and without leading save in order to focus the attention of the young witness. At times, Ms. K. appeared relaxed, and the video-audio record permitted the Court to appreciate when she was emphatic, as seen at p. 4, l. 28. And, excited and animated, as seen at page 9 in particular.

[5] Of note, it appears that the witness was not told in advance what she would be doing that day, prior to her arrival, to maximize fairness. When Ms. K. understood the subject matter, she seemed relaxed in addressing the first questions, and it is of interest that she stated: "I miss daddy", at page 7, l. 24.

[6] On occasion, the Court was impressed by the young lady's obvious efforts at thinking about a question prior to responding, as seen at page 10, l. 20.

[7] The first important question is found at page 11, l. 30: "… when you were visiting dad, were there any problems there?" Ms. K. answered: "No." When asked if anything ever happened, she stated: "No." A few pages later, after the young lady provided remarkably detached testimony about physical discipline she endured at the hands of her father, she was asked "Has Daddy ever done or said anything, like, inappropriate?" The immediate response was "No." The officer then asked: "Anything that he shouldn't do?" and Ms. K. replied: "Just he said to suck his penis." See page 13, l. 26-27. She went on to explain the reward that she was offered.

[8] Indeed, Ms. K. stated at page 14, l. 9, that the first one to comply with this unlawful demand would receive the candy! See also at page 18, l. 5-7.

[9] Later on, the young lady was far more emotional when discussing her hatred of both brown chocolate and the colour yellow, a striking contrast to her very even keel testimony, so to speak, when describing the illegal invitation made by her father.

[10] Ms. K. did state that she was admonished by her father to not tell anyone, though she did inform her mother, after a period of time.

The testimony of Ms. K. on September 23, 2019

[11] The young witness later testified in Court on September 23, 2019, and adopted her evidence pursuant to s. 715.1 of the Criminal Code. She did not say much else in her examination-in-chief as Mr. Purcell wisely did not wish to tax her resources greatly as she had watched her interview and it was almost noon.

[12] Mr. Paul's lengthy cross-examination drew from the witness at around 12:02 that the young lady seemed to accept the terrible invitation she described in order to protect her younger sister from this awful ordeal. In effect, that they discussed the matter prior to the decision being made, and that Ms. K. went ahead as "she could handle it", so to speak.

[13] The witness then went on to "hold her ground", so to speak, despite Mr. Paul's carefully prepared and quite detailed cross-examination, and conceded almost nothing until around 2:26 when she exaggerated the number of times something was said, a quite rare example of any kind of unsupported statement.

[14] Eventually, at 2:45, she made mention of dreams and appeared to question whether what she experienced was real, or the stuff of fantasy.

[15] In re-examination, Mr. Purcell asked the young witness about her evidence as to her brave decision to endure a vile act but she was not able to recall the testimony very well. In the same fashion, Crown Counsel attempted to clarify the question of the dream, but the young lady was nearly exhausted and was incapable of concentrating fully. Refer to the Court's comments at 2:59.

The Testimony of Ms. K. on September 27, 2019

[16] This witness also testified on September 27, 2019, and was asked by Mr. Paul about her conversation with her mother after Court, and a host of other questions, notably about candy, to then ask "But the part about sucking daddy's penis, that didn't happen, right?" The answer was "No." Of note, almost always before in questioning, her father was described as father and not daddy. The Court cannot say that this was a trick or unfair in any way, as it was not, but the fact remains that the Court is troubled with the weight to be assigned to such a response in the context in which it arose. Further, does the response "no" favour the defence in the sense that "yes" might be the correct reply to the question "it did not happen?" The questions are important in such prosecutions involving children as they can only endure so many questions, or for a limited period of time, and re-examination so long after the question is asked is often pointless, as was the case in this prosecution.

[17] In addition, the Court points out the bottom of page 27 as setting out a number of seemingly helpful responses, from the defence perspective, but the importance that may be assigned to the responses is undermined by the answer at line 1 of page 28. The theme of the younger sister inventing a scenario involving fellatio performed on their father by her older sister in order to curry favour is very suspect, to say the least on this subject.

[18] Thereafter, defence counsel skilfully moved the subject back to asking the young witness questions about what Ms. K. said to her mother a few days earlier, in the context of denials of sexual violence by her father. More success what apparently obtained in this indirect form of impeachment than might have been achieved if the questions had been more direct, but the fact remains that Ms. K. continued to draw back from some of her earlier, far more damning testimony.

[19] Of course, in the cross-examination of any young witness, counsel are often going to be successful in making suggestions but it was remarkable in this case how often the young witness was categorical in saying, for example, "Yeah, it didn't happen", in reference to the sexual allegations put forward, in what may be described as a monotone, but she was more animated when stating how her mother stated that they could not talk about the case. The young witness did not appear to be attempting to curry favour with her mother when withdrawing from her accusations, as it was not evident that she understood her recantation was helpful to her father and thus, to her mother. At the end, she was simply far more emotional about relationships and far less about actions that were terrible in nature, if they took place.

[20] In re-examination, the young witness made plain this emotional maelstrom when she responded to a precise question by Mr. Purcell about her mother's reaction to the disclosure of sexually vile conduct by making refereeing to her younger sister's conduct in being mean to her. It was both a strong expression of emotion and a telltale indication that she was not focusing on any suggested physical abuse, which may be seen as an indirect concession as to the merits of her initial allegation.

[21] That being said, Crown counsel then obtained some success in demonstrating that the child's mother may have been instrumental in raising doubts in her child's mind about the truth of her allegations. Refer to page 30.

[22] Thereafter, the examination in chief disclosed a quite detailed description by this witness of the manner and nature of her sister's manipulation of her in order to induce her to provide a false complaint. The Court notes in particular the testimony found at p. 33, l. 10-27.

[23] Mr. Purcell eventually invited the Court to find that this situation was too fantastic to be worthy of any credit, and I need not review further in writing the various elements of this testimony that I have examined closely to adopt that submission.

The Testimony of Ms. N.

The Police Interview with Ms. N.

[24] This then 4-year-old was interviewed by Det. Cst. Van den Oetelaar on January 24, 2019.

[25] By contrast with her older and more mature sister, her testimony was largely of no value as she was unable to concentrate. The Court does not wish to cause her any secondary victimization and will content itself with quoting passages that show that her fatigue, or extreme youth, or lack of understanding of the vocabulary resorted to by the officer, that was nonetheless age appropriate, or other reason, made it impossible to assign credit to her words.

[26] The relevant passages follow: p. 4, l. 27-30; p. 6, l. 18-21, p. 7, l. 1-2; p. 8 in general; p. 9, l. 20-29; p. 11, l. 30-32; p. 13; p. 15, l. 30-32; p. 16, l. 1-5.

[27] All that being said, there was information that had the potential to be quite useful to the prosecution, for example she did state that her sister performed fellatio upon their father. See p. 10, l. 25-28.

[28] Nonetheless, the Court must underscore that nothing Ms. N. stated seemed reliable in light of her poor attention span. She is not to be blamed for this, but it is a reality.

The Testimony of September 25, 2019

[29] Ms. N. testified for the first time on September 24, 2019 and watched the video from about 10:09 to 10:39 with minor breaks. Ms. N. was quite alert at first, pointing out how her hair was coiffed differently, amongst other things.

[30] She stated that nothing she told the Detective was untruthful, and although she did not resort to the magic words of "I adopt my prior statement", she did so in fact, adding at 11:09 that there was an invitation to "suck her father's penis", which case law seem to view as an acceptable form of leading in light of the audio-visual cue and the need to avoid repetition, in keeping with the purpose of the legislation.

[31] In cross-examination, defence counsel asked about a conversation the young lady had with her mother and sister, after Court. The young lady at first denied that she could recall the conversation, or that she had told a lie. See 11:28. That being said, Ms. N. was dead tired at that point and we had to stop.

[32] At 12:46, the testimony resumed and Ms. N. maintained that she told the truth about the fellatio, but she also seemed to suggest that she told her mother the opposite. The cross-examination dealt with a number of details that are largely unimportant in the Court's fact finding. Though Mr. Paul was not making any apparent progress for quite some time, the Court intervened at 1:26 to point out the very real concern that her responses might not be truly representative of her memory and understanding due to extreme fatigue.

The Testimony of September 27, 2019

[33] The young person testified again on September 27, 2019 and stated the following in the course of her cross-examination.

[34] Firstly, Mr. Paul asked her at p. 2, l. 18 and following: "Q. Now, the part about K. sucking your father's penis, that was not true?" The young lady responded: "It wasn't true." This response is superior to the one noted earlier in terms of her sister as she responded with a full answer leaving no doubt as to her meaning.

[35] By contrast to her earlier cross-examination, in which she was called much later in the day, and was visibly fatigued, and her testimony during the s. 715.1 interview when she was not fully co-operative, the young lady was more alert at this stage, though she was still somewhat "bouncy", in the sense of agitated, if I may use that expression. No disrespect is intended as most of us would do no better, in the circumstances, as adults and many might well do more poorly including the undersigned. It is a real challenge to testify at the best of times and her young age only exacerbates her plight.

[36] Mr. Paul then addressed the accusation that his client had asked his daughter K. to perform fellatio, and asked Ms. N. this question: "Okay, and the part about your father asking K. to do that, that was not true?" "A. That was true." The Court intervened to ask the witness to repeat as I was not sure of her answer given her soft tone, and she stated: "It wasn't true."

[37] Later on, I was impressed when the witness asked Mr. Paul, at p. 4, l. 27, "what does that mean?" in response to questions about a suggested recantation whilst walking home from Court in the afternoon a few days earlier. She then responded that she could not recall what Mr. Paul was suggesting she experience. These questions were not complicated, and were relatively short in nature, especially when compared with a number of far longer and more complex questions put by defence counsel on the earlier day of testimony. Defence counsel then put forward the question: "… your sister didn't suck your father's penis?" The young lady stated: "She didn't." Defence counsel then asked if the young lady had told that to her mother recently and she agreed with the suggestion.

[38] By way of contrast, when the Court reconvened much later that day, the young witness asked for clarification a number of times for relatively uncomplicated questions. See the top of page 8, followed by her answer "No" to the question "Did you tell K. to say that she sucked your father's penis?" She also stated that she had not asked K. to lie about her father. The transcript does not disclose how tired and somewhat bewildered she appeared to be. Thereafter, as Mr. Paul asked more questions, Ms. N. became more confused and the question at line 23 involved a subordinate clause and though she responded "No.", I have no confidence she understood what she was being asked.

[39] That situation was common towards the middle of her prior cross-examination as the combination of fatigue, hunger, stress, compound questions and boredom resulted in a totally distracted witness not understanding much of what she was being asked. This became the norm just prior to re-examination as Mr. Paul was asking his concluding questions.

[40] Indeed, the degree to which this unfortunate situation was evident in depriving the witness of any real degree of understanding at that point was made plain by her initial responses to Mr. Purcell when she stated she could not recall who he was and whether she had testified earlier "… about the same thing and people?" See p. 9, l. 20-23.

[41] The transcript contains a number of responses that appear to be direct and responsive, and favourable to the prosecution for the most part, but I have less than full confidence that she truly was capable of concentrating and responding in a manner that is consistent with a reliable account. A number of other questions were not answered, or by a response evidencing a lack of understanding. Thus, through no fault of her own, she provided information at the end that was not capable of being given any weight, though she was fair in often stating that she could not respond at times, not being able to understand a number of questions.

[42] The Court must add that her step-father was apparently arrested the day before she testified a second time, a feature guaranteed to be even more upsetting, leaving aside the fact her father was in jail throughout the trial.

[43] A thoroughly tired witness is not capable of providing correct information, and this was evident at the end. Not unlike the earlier situation when she was asked questions late in the day the first time she testified, she could no longer respond by the time Mr. Purcell wished to clarify a number of points.

[44] The Court in this case as in the case of her sister assigned no importance to the inability of this witness to be precise about matters such as the time of the day and the time of year where this alleged sexual abuse took place, whether it was a school day, and whether Mr. Paul's client was in his bedroom or the bathroom when the alleged sexual violence took place. In the same light, what was offered by way of reward in the sense of light or dark coloured candy, or licorice, is of no moment given the age of the children, and whether the candy was in baskets or not.

The evidence of Ms. Martine Ranger

[45] An experienced member of the CAS, Ms. Ranger was involved in the interviewing and her written report was filed on consent. The report was quite damning but cannot receive much by way of weight in light of the hearsay-based nature. No principled hearsay application was initiated, and one doubts it might have led to any assistance from the Crown's perspective.

The Testimony of Ms. C.

Ms. C. (first name)

[46] The mother of both children, Ms. C testified on October 1, 2019.

[47] The first thing she testified to of note was that her relationship with the accused will end if he is found guilty.

[48] Secondly, she noted that she received a complaint but did not act on it with alacrity.

[49] Thirdly, her young daughter would have said it was "pink" inside, in describing what she endured, and thereafter the mother ceased her limited questioning.

[50] Eventually, she brought the matter to the attention of the CAS and appears to have fully cooperated with the prosecution until, as she put it, she received a form of recantation when returning home from the Court house.

[51] Mr. Paul was interested in having the witness confirm that her children both withdrew the essence of the allegations during that walk, despite asking them not to discuss the matter. It is far from clear that this was, in fact, her testimony.

[52] Indeed, she was obviously caught in an emotional conflict not knowing who or what to believe, blaming herself for not having made an earlier complaint and then blaming herself if, in fact, she encouraged a prosecution that was unfounded, leading to her children being interviewed, and having to testify twice, and her spouse being charged. Ms. C. could not recall many major events fully, as she did not make, herself, notes of the various statements of the various things said to her over more than one year.

[53] The Court accepts that she did nothing to hinder the course of justice and believes that she simply was caught up in an undertow of factual and emotional controversies that most of us would have succumbed to, as did she. No blame is to be placed on her shoulders as she did nothing of a criminal nature and appears to the Court to be free of any moral or ethical transgression.

An Examination of Potential Reforms to our Procedures

[54] Any person who witnessed this trial would be moved to advance any number of criticisms, notably how little accommodation is made for the needs of the children called upon to testify who may well have been victimized in the vilest manner.

[55] Firstly, one might ask why the trial did not begin at 8 or 8:30 in the morning if children as young as 4 and 6 are to testify?

[56] Secondly, one might ask why there are no time limits on the testimony in the case of young children or, to the same point, why there is no limit to the number of questions put, by both lawyers?

[57] Thirdly, one might ask why questions involving any subordinate clauses are permitted and, of course, why any questions involving complicated vocabulary are permitted to be asked? Ought not all questions to be vetted in advance?

[58] Fourthly, one might ask why there is no equivalent to the Children's Lawyer in a criminal trial to invoke non-partisan concerns as to fatigue, upset, lack of comprehension, etc., as opposed to leaving it to adversaries and the Court to monitor such very signal concerns?

[59] Fifthly, why the Court permits re-examination which only serves to muddy the waters as the children struggle to recall what was said as opposed to a system where their own words are played for them on an audio-tape to better situate themselves fully and fairly?

[60] Sixthly, why so many questions on useless details such as the time of day, time of year, the type of candy, etc. Might as well ask if they believe in Santa Clause and the Tooth Fairy, some might ask?

[61] Lastly, why did the trial take place so many months after the charges were presented.

[62] The Court could go on but these questions are discussed ably in books such as Children and Cross-Examination Time to Change the Rules?, edited by John R. Spencer and M.E. Lamb, 2012, Hart Publishing: Oxford, The Trial on Trial, edited by A. Duff et al., 2004, Hart Publishing: Oxford, Hearing the Victim Adversarial Justice, crime victims and the State, edited by A. Bottoms and J.V. Roberts, 2010, Willan Publishing: Portland, Oregon, and Sexual Assault and the Justice Gap, by J. Temkin and B. Krahé, 2008 Hart Publishing: Oxford. Indeed, there are many passages in a legion of texts and academic articles that could be cited in support for the need for even more improvements to our means of obtaining information, within an adversarial system in which the accused is presumed innocent and the prosecution must prove guilt beyond a reasonable doubt, but the Court will cite but one. In Sitting in Judgment The Working Lives of Judges, by Penny Darbyshire we read at page 438: "… judges were concerned about poor quality videos of children's evidence, claiming this caused a high acquittal rate of alleged child abusers who judges were convinced were guilty." [2011: Hart Publishing, Oxford.

[63] The question in this case was not the poor quality of the video, but whether the potential impact of the testimony of the children was undermined by the passage of time, fatigue, the complexity of questions, the time of day the hearing began, and so many other issues that may be remedied by simple reforms. If it was not for the Victim Witness Assistance Program and the presence of the support person, I dare say that there would have been even greater difficulties for these children in testifying. At the end of the day, the Court finds that these children were confused, often unable to concentrate and that there were contradictions in their testimony, both internally and externally, on major points. There was a great deal of success in cross-examination and of course the cross-examination is after the examination in-chief which included viewing the videos. At that point, the children are tired, they are far more confused and far less likely to be able to concentrate.

Conclusion

[64] The Court finds, at the end of the day, that the testimony of both children, taken alone or together, together with the evidence of Ms. Ranger and Ms. C., is not capable of establishing the guilt of the accused beyond a reasonable doubt. The Court cannot be satisfied on the Record that the accused committed any of the acts he is charged with and, therefore, Mr. Paul's client is found not guilty.

Released: October 30, 2019

Signed: Justice Gilles Renaud