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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 from time to 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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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: December 6, 2019

Court File No.: Toronto North 16-45003115

Between:

Her Majesty the Queen

— and —

R.S.(A.)

Before: Justice T.E. Breen

Heard on: July 4, 11, 15, 16, 22, 2019

Ruling released on: December 6, 2019

Counsel

B. Bovell — counsel for the Crown

S. Caramanna — counsel for the Defendant

D. Way — counsel for J.D.R.

Decision

Breen J.:

Introduction

[1] By way of an Information, sworn August 9, 2016, the applicant is charged with sexual assault and sexual interference in relation to alleged inappropriate touching of his niece, J.D.R., between 2005 and 2008.

[2] By way of notice of application, dated January 17, 2019, the applicant seeks an order pursuant to s.278.94(4) of the Criminal Code, admitting evidence of extrinsic sexual abuse of the complainant, J.D.R. The notice of application is supported by a complete record, as required by s.278.93, and includes an affidavit of the applicant, statements of J.D.R., her parents and sister, and prior testimony of J.D.R. and her mother.

[3] On January 28, 2019, Crown counsel conceded, in accordance with s.278.93(4), that the evidence was "capable of being admissible".

[4] On July 15, 2019, the prosecution began the presentation of their case, with the in-chief examination of J.D.R. At the request of defence counsel, cross examination was adjourned until after the admissibility of the evidence of the extrinsic sexual abuse of the complainant was determined. An admissibility voir dire, in accordance with s.278.94, was conducted on July 22, 2019. J.D.R. was not in attendance but was represented by Ms. Way. On July 23, 2019, counsel were advised that the application was allowed, in part, and given direction as to what evidence was admissible.

[5] As required by s.278.94(4), the following reasons explain my conclusion as to the admissibility of the evidence. The factual summary set out below is drawn from the materials provided in the application record and J.D.R.'s in chief examination on July 15, 2019.

The Alleged Sexual Abuse

[6] J.D.R. is presently 17 years old and in grade 12. She is the eldest of three children born to her father, R.D., and mother, L.R.S. The applicant is the younger brother of L.R.S. From 2005 to 2008, the applicant resided with his sister and her family in a three bedroom apartment on T[...] Road. J.D.R. alleged that on some five to ten occasions, while residing on T[...] Road, the applicant asked her to sleep with him. After everyone was asleep the applicant would tell her that he was going to "massage" her vagina. He touched her vagina under her clothing. On almost every occasion the applicant told J.D.R. that the massage was "our secret". J.D.R. believed that she was in kindergarten when the abuse occurred. When she was in grade one the family moved and the applicant no longer lived with them. In examination in chief, J.D.R. testified that she did not consider telling anyone about the abuse, explaining that she was intimidated by the applicant, who was an adult, and she accepted that what had occurred was to be a secret.

The Extrinsic Sexual Abuse

[7] After the family moved from T[...] Road, J.D.R.'s parents developed a friendship with E.C. and his family. The two families became closer and visited at their respective residences. J.D.R. developed a friendship with E.C.'s daughter. L.R.S. estimated that J.D.R. was in grade 3 or 4 during this time.

[8] J.D.R. recalled an occasion that she visited the C[…] residence when she was about 8 or 9 years of age. While playing with Mr. E.C.'s daughter in the bedroom, they were joined by Mr. E.C., who put J.D.R. on the bed and touched her vagina under her clothing. In a statement to police on August 2, 2016, J.D.R. described the touching as "like almost the same way my uncle did".

The Disclosure History

[9] In February 2012, J.D.R.'s immediate family moved to Guatemala with the intention of making it their permanent residence. The applicant remained in Toronto. Several months later J.D.R. approached her mother and, without prompting or suggestion, volunteered having been touched by Mr. E.C.. J.D.R. made no mention of the applicant's similar conduct. On November 27, 2017, in her evidence at Mr. E.C.'s trial, J.D.R provided the following explanation for the timing of her disclosure, "I felt that it was – I felt more safe too, because [Mr. E.C.] wasn't there and basically no one was there, and I felt very safe because I was very far away."

[10] In August 2013 the family returned to Toronto. L.R.S. had become pregnant with her third child and wanted the birth to occur in Canada. The family has remained in Toronto to the present. In July 2016, for the first time, J.D.R. told her mother of having been molested by the applicant when he was living with their family.

[11] On August 2, 2016, J.D.R. met with D.C. MacLeod of the Toronto Police Service and provided a statement in which she reported the abuse by the applicant and Mr. E.C..

Motive to Fabricate

[12] In his affidavit the applicant states that his sister was the dominant presence in her household. According to the applicant, his sister was physically and emotionally abusive toward the children. The middle child, A.D.R., received a disproportionate share of abuse, as J.D.R. was his sister's "favourite". The applicant offered his support to A.D.R. and counselled her to report the situation to the Children's Aid Society if things did not improve. According to the applicant, his sister resented his criticism of her parenting, and told him that he would not be welcome in her home if he interfered. The applicant deposed that he and his sister were both placed in C.A.S. care as children.

[13] On August 21, 2017, L.R.S. met with D.C. Heidigrass to review her initial statement in preparation for the preliminary inquiry. During this meeting L.R.S. advised that, in the months prior to J.D.R.'s disclosure in July 2016, she learned from A.D.R. that the applicant had told her that her family did not love her, took advantage of her and that he could give her a better life. L.R.S. told police that she had shared this information with J.D.R.

[14] In her in chief examination J.D.R. adopted her statement of August 2, 2016 as truthful. In the course of the statement, J.D.R. said that she believed that the applicant "doesn't really like her" and "likes my sister better." J.D.R. explained that the applicant takes A.D.R. places and gives A.D.R. things while ignoring her. These circumstances provide some support for the applicant's account of the situation within J.D.R.'s family and his effort to support A.D.R.

Position of the Parties

[15] Mr. Caramanna submits that the applicant's interference in the family and encouragement of A.D.R. to seek assistance from C.A.S. affords some evidence of a motive to fabricate common to both J.D.R. and her mother. The failure of J.D.R. to disclose the abuse by the applicant in 2012, when she told her mother of Mr. E.C.'s abuse, is a circumstance capable of supporting an inference of fabrication.

[16] In addition, Mr. Caramanna contends that inconsistencies in J.D.R.'s prior statements concerning the abuse by both Mr. E.C. and the applicant support an inference that both complaints are fabricated. This position is also supported by a break down in the relationship between Mr. E.C. and J.D.R.'s parents, which provides a motive to fabricate.

[17] Ms. Bovell, for the prosecution, submits that the truth of J.D.R.'s complaint against Mr. E.C. is irrelevant and collateral to the issues to be decided in this trial. Cross-examination as to the specifics of Mr. E.C.'s abuse and any inconsistencies in J.D.R.'s account thereof, will significantly impact upon J.D.R.'s privacy by compelling her to recount an incident of childhood abuse which has already been tried. While Ms. Bovell concedes a connection between the two complaints, in that both were reported to police on August 2, 2016, she contends that any delay in J.D.R.'s disclosure of the abuse by the applicant cannot support an adverse inference.

[18] Ms. Way, on behalf of J.D.R., joins Ms. Bovell in disputing the relevance of the abuse by Mr. E.C. and submits that there is nothing so distinctive in the acts attributed to Mr. E.C. and the applicant, as to suggest an improbability of coincidence. Ms. Way also submits that J.D.R.'s delay in disclosing the abuse by the applicant is of no relevance and emphasizes the prejudicial effect (both to J.D.R. and the systemic consequence of discouraging complainants from reporting) of requiring a child witness to revisit an incident of abuse after having already undergone a trial.

Analysis

[19] The admissibility of evidence of extrinsic sexual history is governed by s.276 of the Criminal Code, which provides as follows:

276 (1) In proceedings in respect of [various sexual offences], evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or

(b) is less worthy of belief.

(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 276.1 and 276.2, that the evidence

(a) is of specific instances of sexual activity;

(b) is relevant to an issue at trial; and

(c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account

(a) the interests of justice, including the right of the accused to make a full answer and defence;

(b) society's interest in encouraging the reporting of sexual assault offences;

(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;

(d) the need to remove from the fact-finding process any discriminatory belief or bias;

(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;

(f) the potential prejudice to the complainant's personal dignity and right of privacy;

(g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and

(h) any other factor that the judge, provincial court judge or justice considers relevant.

[20] The evidence sought to be introduced by the applicant does not engage "twin myth" reasoning and relates to a specific occurrence. The requirements of ss. 276(1) and (2)(a) are therefore satisfied. The dispute between the parties concerns the relevance of the evidence and the balance between probative value and prejudicial effect.

[21] In my view, inconsistencies in J.D.R.'s account of the abuse by Mr. E.C. are of minimal relevance to the credibility of her assertion that she was molested by the applicant in a similar fashion. The truth of her allegation of abuse by Mr. E.C. is collateral to the issues to be decided in the present trial. More importantly, the cross-examination proposed by the applicant would challenge J.D.R. in respect of a matter that has previously been tried. To effectively relitigate the abuse by Mr. E.C. would substantially impact upon J.D.R.'s privacy and dignity and undermine the policy objective of encouraging complainants to come forward. On balance, the limited probative value of inconsistent statements regarding the abuse by Mr. E.C. is substantially outweighed by the prejudicial effect of the pursuit of such a line of cross-examination.

[22] More substantial is the applicant's submission that J.D.R.'s delay in reporting the applicant's abuse affords circumstantial support for the defence theory of fabrication. This submission requires close examination, given the risk of stereotypical assumptions regarding child behavior.

[23] In R. v. D.(D.) the Court addressed the question of the admissibility of expert evidence on the subject of delayed reporting of child sexual abuse. The Court reviewed the common law history of the doctrine of recent complaint, which recognized a presumptive adverse inference against the credibility of a rape victim who failed to complain at the first reasonable opportunity. This doctrine was abrogated by s.275 of the Criminal Code. The Court ruled that expert evidence which refuted the rationale for the doctrine of recent complaint was unnecessary, as it amounted to a statement of law that could more effectively be communicated by a standard jury instruction:

[65] A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant. (emphasis added)

[24] As the above italicized statement makes clear, no presumptive adverse inference arises from a delay in disclosure. That is not to say that the circumstances in which disclosure is made cannot be relevant to the evaluation of the credibility of a complainant. As stated in R. v. M.(P.S.):

The importance to the complainant's credibility of his or her failure to make a timely complaint will vary from case to case and will depend on the jury's assessment of the evidence relevant to that failure.

[25] In the present case J.D.R. first reported the applicant's abuse to her mother some eight years after the event, at a time when the applicant could reasonably be perceived by J.D.R., and/or her mother, as a threat to the stability of the family. Most significant for present purposes, J.D.R. failed to disclose the applicant's abuse when she told her mother of similar abuse by Mr. E.C. some four years previously. J.D.R.'s explanation for the timing of this disclosure, that she felt safe given her isolation in Guatemala, equally applies to the applicant. As a result, she might reasonably have been expected to disclose the applicant's abuse at the same time.

[26] J.D.R.'s failure to include the applicant's abuse in her unprompted disclosure of similar historical abuse is a circumstance capable of supporting an adverse inference as to her credibility. This omission, and the delay in reporting the applicant's abuse generally, is capable of supporting an inference of fabrication. Relevance is based on the specific circumstances of this case, as described in the application record and evidence to date, and not on purported common sense assumptions about the expected behaviour of sexually abused children.

[27] Considering the factors enumerated in s.276(3), given that the defence challenge to J.D.R.'s credibility rests entirely upon a theory of fabrication, the proposed evidence is central to the applicant's ability to make full answer and defence.

[28] Since relevance rests upon J.D.R.'s failure to disclose the applicant's abuse when she reported similar abuse by Mr. E.C. to her mother in 2012, the foundation for the defence argument can be established without lengthy, intrusive or aggressive questioning of J.D.R. Such limited questioning regarding Mr. E.C.'s abuse and her disclosure to her mother minimally encroaches upon J.D.R.'s privacy.

[29] On balance, the probative value of the evidence clearly outweighs the negative impact of the limited intrusion of J.D.R.'s privacy. Evidence relating to the following is therefore admissible:

i. J.D.R.'s relationship to E.C.;

ii. The time, place and circumstances surrounding Mr. E.C.'s molestation of J.D.R. Specifically, that some years after the alleged abuse by A.R.S., Mr. E.C. molested J.D.R. during a visit to his home, while J.D.R. and Mr. E.C.'s daughter were playing in a bedroom;

iii. That Mr. E.C. touched J.D.R.'s vagina under her clothing;

iv. The circumstances of J.D.R.'s initial disclosure of the abuse to her mother; including J.D.R.'s state of mind/demeanour at the time, her reasons for disclosing Mr. E.C.'s abuse and her reasons for failing to disclose the abuse by A.R.S.;

v. Any subsequent discussion with her family concerning the abuse by Mr. E.C., including any efforts to locate Mr. E.C. after returning to Canada in 2013.

Released: December 6, 2019

Justice T. E. Breen