COURT FILE NO.: 10-10000739-0000
DATE: 20120301
WARNING
A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code.
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
M.C.
N. Golwalla, for the Her Majesty the Queen
M. Czuma, for M.C.
HEARD: January 16-20, 23-27, 29-31 and February 1-3, 2012
Thorburn j.
reasons for judgment
1. Overview of the Case
[1] The accused, M.C. is charged with sexual assault, unlawful confinement, sexual touching of a person under fourteen years of age, and threatening to kill the Complainant and his family.
[2] The accused is the Complainant’s paternal uncle. At the time the incident is alleged to have taken place, the Complainant was seven years old. He is now twelve years old.
[3] The Complainant testified at trial that during the summer of 2007 he was in his grandparents’ washroom on the toilet. The Complainant said the accused came in, locked the door and stuffed a towel in his mouth. He then fondled the Complainant, squeezed his scrotum and penetrated his anus from behind with his penis. He stopped when they heard a noise, washed his hands and before leaving, told the Complainant that if he told anyone he would kill him and his family. The Complainant took this to mean his mother (as his parents were separated).
[4] The Complainant first recounted some basic information about the incident to his mother on February 14, 2008. Thereafter, he gave further information about the incident to:
(i) Karen Clarke, a Children’s Aid Society worker, on March 3, 2008;
(ii) Christine Li, a police officer (in the presence of Karen Clarke) on March 6, 2008;
(iii) Christina Domingues, his therapist on March 25, 2009; and
(iv) Officer Li a second time on April 24, 2009.
[5] In addition, while suffering a seizure on April 25, 2009, the Complainant said other things about the accused and the alleged incident. Upon regaining consciousness, the Complainant had no recollection of what happened during his seizure.
[6] The Crown claims the Complainant’s account of anal bleeding just after the incident, his spontaneous fearful utterances about his uncle during his seizure-like incident and his fear upon meeting the accused’s family members further corroborate his story. The Crown notes that the Complainant’s incremental account of the incident over time is not unusual in victims of child sexual assault. The Crown submits that it is clear the Complainant suffered trauma and his account of what caused the symptoms of trauma should be believed.
[7] The Crown claims the accused’ blanket denial that the incident took place is not believable as he was not a credible witness and he and the other defence witnesses met and discussed the case together before the trial and their evidence is therefore tainted.
[8] The accused denies the incident took place. The Defence claims there were a number of inconsistencies in the Complainant’s account of the incident itself which should lead to the conclusion that the accused did not commit these offences.
[9] The accused also claims the Complainant made things up on previous occasions and this explains why the Complainant claimed the accused had sexually assaulted him when he had not. Other family members and a family friend claimed they were sure he had not committed these offences and corroborated his testimony that the Complainant was prone to making things up.
[10] The expert evidence suggests there is no constellation of factors exhibited by those who suffer sexual abuse. The accused suggests the symptoms of trauma exhibited by the Complainant during his seizure-like incident are attributable to other factors such as abuse at the hands of his father, not trauma caused by sexual abuse.
[11] The accused asserts there is no independent corroboration of the incident. He notes that Dr. Wolfe, the expert psychologist called by the Crown, testified that it is unusual that such an incident would take place with no prior grooming of the Complainant.
[12] The Crown called the Complainant, his mother, two police officers, a Children’s Aid Society worker and Dr. Wolfe, who is a clinical psychologist and expert in dealing with child victims of violence and sexual abuse.
[13] The Complainant’s therapist, Christina Domingues and the Complainant’s elderly grandmother did not testify. Instead, Ms. Domingues’ December 24, 2011 affidavit, her handwritten notes dated December 2, 2008, February 4 and February 18, 2009, March 11 and March 25, 2009 and her letter to Crown counsel dated August 11, 2011 were filed as exhibits. The Complainant’s grandmother filed a written statement.
[14] The accused, two of his sisters, his parents, his nephew and a close family friend testified on behalf of the accused. The accused also called evidence from Dr. Moore, a doctor of cognitive psychology and Chair of the Department of Psychology at Glendon College, York University.
2. The Law
[15] Sexual assault is established by proof of (i) touching; (ii) the sexual nature of the touching; and (iii) the absence of consent. As the Complainant was seven years old at the time of the alleged incident, there can be no consent. The first two elements are determined objectively and are the only two elements that need to be proved on the facts of this case.[^1]
[16] Sexual touching is established by proof beyond a reasonable doubt that the Complainant was under the age of fourteen at the time of the offence, the accused invited the Complainant to touch his body and the touching was for a sexual purpose.
[17] An unlawful confinement involves the confinement of another person without any lawful authority. Unlawful confinement consists of confining another person. This consists of restricting the victim's liberty, but not his or her ability to escape. The restriction need not be to a particular place or involve total physical restraint.[^2]
[18] A death threat is defined in Section 264.1(1) of the Criminal Code as the act of knowingly threatening to cause death or bodily harm to a person.
[19] An accused person is presumed innocent and the burden is on the Crown to prove each of the essential elements of the offence beyond a reasonable doubt.[^3] Something less than absolute certainty is required, and something more than probable guilt is required, in order to convict.[^4] Only the evidence relevant to the charge may be considered in applying the burden of proof.
[20] Where the accused chooses to testify, he must be acquitted if his evidence is believed. If his evidence is not believed but the court is left in reasonable doubt as to his guilt, he must also be acquitted. Even if the court does not believe his testimony, he should only be convicted if, on the basis of the evidence that is accepted, there is no reason to doubt his guilt.[^5]
[21] In order to decide whether to accept the accused’s version of events or whether it leaves the court with a reasonable doubt, the accused’ evidence must be assessed in the context of the evidence as a whole.[^6] The evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is presented that contradicts the accused’ evidence, that evidence may no longer be believable, or may no longer raise a reasonable doubt.[^7]
[22] If the court is left in reasonable doubt as to the accused’s guilt he must be acquitted. It is not necessary to believe the Defence evidence to find reasonable doubt as to the accused’s guilt.
[23] If the Defence evidence is not believed, the evidence as a whole that is accepted must establish that there is no reason to doubt his guilt.[^8]
[24] Both credibility and reliability of the witnesses must be assessed.
[25] Where there are multiple accounts of an incident, a trier of fact must pay particular attention to serious inconsistencies in the account, as well as to significant inconsistencies between present testimony and prior accounts. Material inconsistencies may signify unreliability.[^9] There must also be a rigorous analysis of whatever independent, extrinsic evidence exists.
[26] A credibility assessment of the Complainant’s evidence need not directly implicate the accused or confirm the Complainant's evidence in every respect but should be capable of maintaining the trier's faith in the Complainant's account.[^10]
[27] The existence or absence of a motive by the Complainant to fabricate is a relevant factor to be considered[^11]although the burden of proof is upon the prosecution and an accused need not prove a motive to fabricate on the part of a principal Crown witness.
[28] Parts of a witness’ evidence may be accepted and others rejected and different weight may be accorded to different parts of the evidence.[^12] A guilty verdict may be founded on the evidence of a single witness[^13] where that evidence constitutes the bulk of the testimony on that issue.[^14]
[29] It may be wrong to apply adult tests for credibility to the evidence 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.”[^15]
[30] The fact that children may not be able to recount precise details and communicate the when and where of an event with exactitude, does not mean that they have misconceived what happened to them and who did it. The standard of the "reasonable adult" therefore, is not necessarily appropriate in assessing the credibility of young children.[^16] The presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events about which he is testifying. This does not mean of course, that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases.
3. The Evidence Adduced
Details of the Alleged Assault
[31] At trial the Complainant testified that in the summer of 2007 he was at his grandparents’ house for a visit. His uncle, the accused, was also there. He was playing with his cousins and then went to the second floor washroom. He entered the bathroom and closed but did not lock the door.
[32] He was wiping himself after defecating when he heard a knock at the door. He called out that someone was in the washroom but the accused entered anyway. The accused did not speak to him but locked the door. The Complainant said he became very afraid as he thought his uncle would hurt him.
[33] He started to scream but the accused took a towel from the cupboard above the toilet tank and stuffed it on his mouth. The accused put the Complainant’s hands down. The Complainant got up from the toilet and the accused stood behind him, put his hands around his waist, fondled his genitalia and then “grabbed his balls” and squeezed them. The accused then pushed him to the wall opposite the toilet and inserted his penis into the Complainant’s anus.
[34] The Complainant said his “bum” hurt as he felt the accused thrust his penis inside of him.
[35] The Complainant said they heard a creaking sound on the stairs, the accused pulled his penis out, did up his trousers, washed his hands and left the washroom. As the accused left, he told the Complainant that if he told on him and he got in trouble he would kill the Complainant and his family.
[36] His grandmother came and asked the Complainant if anything was wrong. He did not tell her because he thought she would get angry with him. The Complainant says the incident lasted approximately 20 minutes.
[37] The Complainant said the accused had never touched him inappropriately before.
The Complainant’s Earlier Statements Regarding the Alleged Assault
[38] The Complainant gave several earlier accounts of the incident. Each time the Complainant divulged more details about the incident. There were some discrepancies in the information provided as follows:
February 14, 2008
[39] On February 14, 2008 the Complainant spoke to his mother. He felt tired and told her it felt like when he drank alcohol at some of his father’s family parties. He told his mother that his father and the accused held his hands and forced him to drink alcohol. He also told his mother that when he and his father went swimming, his father pulled him under the water. When she asked him if there was anything else, he told her about the alleged incident.
[40] The Complainant said he told his mother he was cleaning his behind after defecating; his uncle came into the bathroom, leaned down and grabbed his penis. His uncle said nothing, pushed him against the wall and grabbed his “balls” really hard. He told his mother the accused left and then his grandmother came in.
[41] He said his mother was mad and kind of in shock when he told her. He was scared to give her all the details because the accused had told him that if he got in trouble he would hurt the Complainant and his family.
[42] The Complainant’s mother confirmed that the Complainant gave her this information on the evening of February 14, 2008. She stated that as a result of this disclosure she spoke to a person with the confidential assistance program provided by her employer. When she recounted to them what the Complainant had told her, the counsellor said he could no longer help and called the Children’s Aid Society in her presence.
March 3, 2008
[43] The Children’s Aid Society worker, Karen Clarke made an appointment to see the family on March 3, 2008.
[44] On March 3, 2008 Karen Clarke first spoke to the Complainant’s mother and then spoke to the Complainant. After hearing the Complainant’s allegations concerning the accused, Ms. Clarke arranged for an interview with police on March 6, 2008.
March 6, 2008
[45] On March 6, 2008 the Complainant spoke to officer Li in the presence of Karen Clarke. He was asked to recount what he had told Karen Clarke on March 3, 2008. Thereafter he was asked a series of open-ended questions. The Complainant told them his father brought him to his grandparents’ house. His father left and he went to the washroom and then,
“...my uncle came. I said ‘I’m in the washroom.’ But he just came and opened the door. And then I said, ‘Get away.’ And then he just started touching me. And I said – I shouted, I was trying to stand up to him. And so then he just punched me down. But then, when I like, screamed really loud, ‘cause the washroom is right by my grandpa’s room so he just ran downstairs. Then my grandpa came up and said what happened.”
He said he did not tell his grandfather because his grandfather wouldn’t believe him.
[46] Both the Complainant’s mother and Officer Li testified that the Complainant’s mother asked not to charge the accused. The Complainant’s mother said she did so because she was overwhelmed, confused and scared.
March 25, 2009
[47] In late March 2009, the Complainant and his mother were walking home from the Complainant’s school. His mother testified that the Complainant told her more happened and she tried to discourage him from talking as she wanted the therapist to hear it first. The Complainant became upset so she allowed him to give her more detail about the incident involving the accused. The next day she booked an appointment with the Complainant’s therapist, Ms. Domingues.
[48] On March 25, 2009 the Complainant spoke to Christina Domingues. According to the therapist’s notes, the Complainant told her he was at his grandparents’ house in the late summer of 2009. His father had left to get a cake. The Complainant went to the bathroom and didn’t lock the door. The accused came into the washroom and he asked him to leave. The accused came closer and the Complainant got up right away. The accused reached down, grabbed a towel and put it in the Complainant’s mouth. The accused touched him on his penis, rubbed his penis and “squeezed my balls really hard.” The Complainant says he was then pushed against the wall. He tried to scream and kick but the accused’ hand was over his mouth. The accused then put his penis on his bum and rubbed the Complainant’s bum. The accused then put his penis into the Complainant’s bum. It was very painful but the accused kept pushing it inside. It felt like “when you go poo”.
April 24-26, 2009
[49] On April 24, 2009 the Complainant gave a second statement to police. He told police that he went to the washroom. While he was in there his uncle entered.
“I said, ‘Someone’s in here.’ [The accused] entered anyway and locked the door and I started to get really worried. And I started to scream... he covered my mouth with something like a towel. And he started to touch me...And then he started to touch me on my private part. And to squeeze it. And then he pulled his pants down. And then he stuck his private part in my bum. Well then my grandma – first someone came up in the stairs. So he just left me there. And he, like, washed his hands quick and he got out of the room. And then my grandma just came and said, ‘What’s wrong.’ I didn’t tell her. ... Cause I thought she was going to get angry...And before my grandma came up – the reason why- the reason why I didn’t tell her was because he threatened my life....He said that if I told the police and he went to jail, if he ever came back out he would kill me and my family.”
(The accused, his father and B. all testified that there has never been a cupboard above the toilet.)
[50] The Complainant’s mother also gave a statement to police and recounted what her son had told her. In her statement to the police she said the Complainant told her the accused picked the towel up from the floor.
[51] Later that day he told his mother he wanted to talk about the incident. Officer Li had told the Complainant’s mother not to talk about the incident with her son. However, the Complainant insisted on talking as he said she needed to know how much it (the fact that the accused put his penis into the Complainant’s anus) hurt, that it was like a baseball bat inside of him.
[52] She suggested they watch a movie. An hour or two later he fell to the floor. His mother called 911 and police attended the scene.
[53] The Complainant’s mother testified that when the Complainant fell to the floor, his entire body shook and his eyes rolled back. The Complainant’s mother testified that she had never seen her son like this before.
[54] Officer Shedes also witnessed the seizure. She confirmed that the Complainant was on the floor crying with his eyes closed. He did not acknowledge her. He was hunched on the floor with tears running down his face and laboured breathing. The Complainant rolled around in a foetal position crying and moaning. At one point it looked like he had fainted and then his breathing changed and became very fast. According to her notes he said, “He’s going to kill me...it hurts”. He then grabbed his penis. His mother said “You’re safe”. The Complainant replied, “It hurts mum.” The Complainant seemed to be experiencing physical pain. Officer Shedes observed the Complainant’s mother trying to calm him down. At some point the Complainant held his penis and sometimes his behind outside his clothes. (This observation was not in Officer Shedes’ notes but she testified she had an independent recollection of this occurrence.)
[55] Moments later the telephone rang. Officer Shedes testified that all of a sudden the Complainant moved away toward the wall in complete panic, went back to a foetal position and said, “It’s uncle. It’s uncle.” His face was in a protective position up against the wall so no one could hurt him. He looked very afraid.
[56] This episode lasted 20 to 30 minutes. The Complainant did not recall afterward what he had said or done during the seizure.
[57] Thereafter the Complainant was taken by ambulance to the Sick Children’s Hospital and examined by a doctor. The doctor found nothing unusual about his anus.
Circumstantial Evidence
Rectal Bleeding
[58] The Complainant said that after the accused left the washroom, he sat back on the toilet and noticed a few drops of blood come out of his anus. Thereafter he suffered anal bleeding fairly regularly for about two weeks. A short time after the incident when he was at his grandmother’s house, the Complainant called his mother into the bathroom and showed her that he was bleeding from his “bum”. The Complainant’s mother confirmed that in the summer of 2007 the Complainant showed her blood in the toilet after he had defecated. (At the Preliminary Inquiry the Complainant said he had bled before. At trial he corrected this and stated that he meant to say he had had constipation before but not that he had bled before.)
[59] The Complainant says he was seen by a doctor within a few months but no course of action was prescribed. The Complainant’s mother testified that she did not take him to the doctor after he showed her the blood from his anus because the Complainant suffered from constipation, and because she had suffered anal fissures resulting from constipation and so thought they would go away with time.
[60] There is no record of the family doctor seeing the Complainant within six months of the alleged incident. The Complainant was however seen by a doctor at the Hospital for Sick Children just after he had his seizure on April 25, 2009. The doctor examined his anus but did not prescribe a course of action and saw no damage to the anus.
The Bus Incident
[61] On April 27, 2009, the Complainant was waiting for the bus with his grandmother outside her home. When he was on the bus the accused’s cousin and one of his brothers got on the bus. They sat close to him. According to the Complainant’s grandmother, the Complainant was very afraid but would not tell her what was wrong until after they got off the bus. The Complainant testified that he was very afraid because he had given a police statement two days before which statement resulted in the arrest of the accused. He felt he was in danger in view of the death threat he says the accused made to him at the time of the incident.
Symptoms of Trauma (anger attacks)
[62] The Complainant testified that shortly after the incident he started to have serious anger attacks where he would attack his mother or punch holes in their home. The Complainant was unable to control his behaviour. Afterward he would often not remember having done this. (Before that he was sometimes angry but didn’t lose consciousness or forget what had happened.)
[63] The Complainant’s mother testified that when the Complainant was a toddler he was happy and playful. When he was five or six he was afraid of his father and would take things out on her by yelling at her and becoming bossy and demanding. However, he did not punch holes in the walls and doors, did not forget what had happened afterward, and she did not feel he was in need of therapy.
[64] However, beginning in grade 3 (during the Fall after this incident occurred) the Complainant’s mother testified that there was a huge change in his personality. He became more withdrawn, moody and angry. He began to hurt her and himself physically and would scratch, kick and punch the walls and doors of the house. After the Complainant punched holes in the doors and walls of their home, his mother said he often did not remember who made the holes or the episodes that culminated in this violent behaviour. As a result, his mother began to take him to a therapist to deal with his “anger attacks”.
[65] Christina Domingues’ notes make reference to being told by the Complainant’s mother that he suffered “anger attacks” for three years before she saw him for therapy (and two years prior to this incident). Ms. Domingues did not testify. The Complainant’s mother explained that she was the source of this information. She said she told Ms. Domingues the Complainant had bursts of anger but they were not of the same type as those he experienced after this incident.
[66] The accused’s family friend, G.B. lived with the Complainant and his family from the time the Complainant was two to five years old. He said during this time the Complainant had temper tantrums when he was not given what he wanted and would sometimes hit himself in the face. The behaviour G.B. described was distinctly different from the behaviour the Complainant and his mother say he exhibited after the incident. (In the incidents described by G.B., the Complainant was not in a dissociative state, the level of violence was lower and the tantrums were precipitated by not getting what he wanted.) Moreover, G.B. rarely saw the Complainant after he was five years old.
4. Opinions Expressed by the Experts (as Permitted at Trial)
[67] At the commencement of trial Crown and Defence counsel sought to admit expert testimony. The Crown sought leave to permit Dr. Wolfe to present expert evidence at trial about delayed, incremental and inconsistent disclosure by victims of child sexual abuse, and about symptoms of non epileptic seizures, Post Traumatic Stress and how to explain or understand the seizure-like episode suffered by the Complainant on April 25, 2009.
[68] The accused sought to allow Dr. Moore to give his opinion on the effect of delayed or incremental disclosure in sexually abused children, the effect of suggestion, manipulation, coercion and social pressure on evidence given by children, the importance of alerting an interviewee of the importance of telling the truth and obtaining an agreement to tell the truth, whether there is a “constellation of symptoms” found in victims of sexual abuse, and whether there is a causal relationship between sexual abuse and non-epileptic seizures.
[69] Dr. Wolfe is a doctor of clinical psychology. He holds a Chair in children’s mental health at the Centre for Addiction & Mental Health (CAMH), he is a professor of psychology at the University of Toronto, and he is the Editor-in-Chief of Child Abuse and Neglect: The International Journal. He has taught in the areas of child psychopathology and family violence. His research and clinical interests include a focus on abuse, violence, and child sexual abuse. He was Chair of the Violence and Traumatic Stress Review Committee for the National Institute for Mental Health from 1997-1999. He was Chief Psychologist for the London Children’s Aid Society from 1981 to 1995. He has testified in 38 trials on the issue of child abuse, child welfare and the effects of family violence on children and was asked by the United Nations and the International Society for Traumatic Stress Studies to Chair an international committee on Child Abuse in Peacetime. He has written on the subject of child sexual abuse and has testified for both the Crown and defence in cases involving child sexual abuse.
[70] Dr. Moore is Chair of the Department of Psychology at Glendon College, York University. He is a doctor of cognitive psychology. He has authored or co-authored a number of publications on the subject of cognition and learning, language, family violence and police interrogations and has testified in approximately 30 trials.
[71] Dr. Wolfe was permitted to give his opinion on:
• delayed, incremental and inconsistent disclosure as it relates to child victims of sexual abuse and the variations, combinations and changes involving disclosure by child victims of sexual abuse and the current literature regarding these behaviour patterns,
• the symptoms he was told were exhibited by the Complainant on the evening of his seizure-like event, and compare them to the symptoms of those who suffer non-epileptic seizures and the symptoms associated with post traumatic stress, and
• the research regarding the alleged statistical correlation between child sexual abuse and non-epileptic seizures and post traumatic stress disorder.
[72] Dr. Moore was permitted to provide his opinion on:
• delayed, incremental and inconsistent disclosure as it relates to child victims of sexual abuse and the variations, combinations and changes involving disclosure by child victims of sexual abuse and the current literature regarding these behaviour patterns,
• to respond to Dr. Wolfe’s testimony regarding the symptoms he was told were exhibited by the Complainant on the evening of his seizure-like event, and compare them to the symptoms of those who suffer non-epileptic seizures and the symptoms associated with post traumatic stress, and
• the research regarding the alleged statistical correlation between child sexual abuse and non-epileptic seizures and post traumatic stress disorder.
[73] He was not permitted to opine on the effect of leading questions, refreshing a witness’s memory, and the need for the child to understand the duty to tell the truth as this was not considered to be necessary in view of the court’s role and responsibility to assess credibility.
[74] Although the experts were permitted to introduce this evidence for the purposes of the trial, I considered only the evidence set out below in arriving at my decision:
[75] Dr. Wolfe and Dr. Moore agreed that delayed and incremental disclosure is not unusual in sexual abuse cases. Dr. Wolfe testified that where there is a threat of violence, it may be months or years before a child is able to speak about it. Both experts agreed that there is no constellation of symptoms of child victims of sexual abuse. However, the symptoms often include anxiety, fear of someone, avoidance, aggression towards others and trauma.
[76] Dr. Wolfe noted that it is unusual that incidents such as this are isolated incidents that involve no grooming.
[77] The Complainant’s mother and Officer Shedes testified that the Complainant exhibited signs consistent with trauma such as sobbing, crying, a seizure-like reaction and not being fully conscious of his surroundings. The Complainant articulated the cause for his traumatic incident. Dr. Wolfe opined that although he had not examined the Complainant, he felt there was a strong consistency between what the Complainant said happened to him during his seizure on April 25, 2009, and the symptoms of trauma he exhibited. He opined that where disclosure is made in the context of an emotional outburst it is harder for the person disclosing to embellish the story.
[78] Dr. Wolfe also stated that, “I would weigh that [Officer Shedes’ notes of her observations of what happened during the time the Complainant suffered his seizure] strongly in the sense that the behaviour that he’s showing is consistent with someone that’s been exposed to something traumatic. It could be physical abuse, it could be sexual abuse, it could be something else.”
[79] When asked whether Dr. Wolfe believed the source of the Complainant’s symptoms of trauma was physical abuse at the hands of his father, Dr. Wolfe responded, “No, because this is a different issue. He’s not talking about my dad hitting me and there’s no reason for me to believe that he would take what happened with his father and change it into a sexual assault by his uncle. I’ve never – there’s no reasons in the psychological literature to see that.”
5. The Position Taken by the Accused
Background
[80] The accused chose to testify at trial. He is a 42 year old man who came to Canada when he was six years old and has lived here most of his life. He is one of seven children. The family was very close and they saw each other often at family gatherings.
[81] The accused has a dated Canadian criminal record for assault. Domestic dispute allegations were made against him twenty years ago in Ecuador and he is presently on probation awaiting trial on an over 80 driving charge.
[82] The accused expressed animosity toward the Complainant’s mother. He said his brother would bring the Complainant over when his wife permitted him to. He said she “gave him a hard time” about coming to family events although he claimed she was welcomed by the family as part of the family. The accused said he was 100% sure she had put her son up to this because her estranged spouse (his brother) had found a new girlfriend.
[83] The accused asserted that his brother (the Complainant’s father) never hit the Complainant. This assertion is in direct contrast to testimony given by the Complainant and his mother that the Complainant was shaken, slapped, punched, hit, kicked and had his ears pulled by his father. Both the Complainant and his mother testified that the Complainant still had a mark on his foot three years after one of the assaults.
Accused Testimony Regarding the Incident
[84] The accused admitted he went over to his parents’ house one or two times during the summer of 2007 and that his brother and the Complainant were there also. He said his brother almost never left the Complainant alone except to go and get bread or something. The allegation in this case is that the Complainant’s father had gone out to get a cake when this incident took place. It is clear therefore that the opportunity existed to commit these offences.
[85] The accused denied he ever sexually touched, assaulted or threatened the Complainant.
Accused Reaction Upon Learning of these Allegations
[86] The accused said he first found out about these allegations in January or February of 2008 when his brother (father of the Complainant) came to see him. His brother took him down into his basement to discuss these allegations with him. The accused says he could not believe what he was hearing. His wife was upstairs and he told her what had happened. They agreed that he had to go to the police. Shortly thereafter, the accused, his then-wife, his brother and his brother’s girlfriend all went to the police station and the accused gave a statement professing his innocence. This statement he said was spontaneous and should therefore be probative of his innocence.[^17]
The Complainant’s Evidence Regarding the Incident was Neither Credible nor Reliable
[87] The position of the accused is that the Complainant’s account of the incident differed over time:
(a) the Complainant never claimed the accused thrust his penis into the Complainant’s anus or that the accused had threatened to kill him and his family until March of 2009;
(b) at first there was no mention of a towel at all, then the Complainant told his mother that the accused picked a towel off the floor and inserted it into his mouth, and the Complainant later testified that the accused took a towel from the cupboard above the toilet tank. (The accused, his father and sisters B. and M. testified there had never been a cupboard above the toilet tank.);
(c) the Complainant told Officer Li in his first statement to police that his grandfather came upstairs just after the incident. In his second statement to police (and in giving the initial account of the incident to his mother on February 14, 2008) he said his grandmother came up the stairs to see what was happening.
Evidence Adduced by the Defence to Suggest Other Theories to Explain the Allegation made by the Complainant
The Complainant Had a Habit of Making Things Up
[88] The accused further suggests the Complainant had a habit of making up things that were not true. The accused cites the following instances:
(i) the Complainant falsely claimed that the accused and the Complainant’s father forced him to drink alcohol on some family occasions;
(ii) the Complainant falsely claimed that his father pushed his head under water while he was swimming; and
(iii) when the Complainant was about five years old, he rushed in from outside his aunt’s apartment yelling that he was being shot which was untrue.
Another Source of Pre-existing Trauma
[89] The accused’s position is that the Complainant’s symptoms of trauma have nothing to do with a sexual assault. G.B. testified that the Complainant suffered anger attacks from the time he was two years old and the Complainant’s mother told his therapist that the Complainant had been suffering from anger attacks since approximately 2005, two years before this incident is alleged to have taken place. As such the symptoms of anger and or trauma do nothing to corroborate the existence of a sexual assault.
[90] The accused’ counsel submits that the Complainant’s symptoms of trauma may have resulted from physical abuse at the hands of his father as the Complainant and his mother both testified that the Complainant had been struck on many occasions by his father (the accused’s brother).
The Complainant had Access to Pornography and Could have Made up this Story
[91] The accused claims that the Complainant could have made up this story. The Complainant’s cousin R. testified that while he and the Complainant were watching a Stuart Little movie at the Complainant’s home some time before the incident, the Complainant told R. he could get “naked lady” movies. The accused’ counsel submits that the Complainant might therefore have seen images and been able to describe such incidents. As such, the Complainant’s ability to recount an incident of anal assault at the age of eight should not be taken to suggest the incident might have taken place.
[92] The Complainant did not recall an incident involving “naked lady” movies. There is no evidence that even if he had told his cousin R. that he could get “naked lady movies” he had any such movies or ever saw them. Moreover, when asked what he meant by “naked lady movies” R. said they included movies where women had their breast exposed.
6. Analysis of the Evidence and Conclusion
Evidence Tendered by the Accused
[93] Because the accused testified, I must begin by reviewing his evidence in the context of the evidence as a whole.
[94] The accused testified that he went to his parents’ house during the summer of 2007 and the Complainant may have been there at the same time but the incident did not take place.
[95] The accused’s position is that his decision to attend a police station and give a statement is probative of his innocence as his decision to give a statement to police was spontaneous and therefore more credible. I do not agree. This was not a spontaneous decision but rather a decision taken after learning of the accusations from his brother, calling his wife downstairs, explaining them to her and then taking the decision to go to the station with his brother, his brother’s girlfriend and his wife. Because I do not find the statement was spontaneous, I do not find it probative of his credibility and circumstantial evidence that may have a bearing on his innocence.
[96] The accused family members and a family friend also gave evidence on his behalf. Many of them surmised that the Complainant had been put up to this by his mother.
[97] The accused’s mother could not remember where she lived in 2007 and was therefore unable to provide any relevant evidence.
[98] The accused’s sister B. stated that although she had lived in an apartment on Weston Road with her family for four years, she had no idea if the street in front of her house had one lane or more going each direction. Only when she was shown the google map did she concede that on the street in front of the home where she resided for four years, there are three lanes of traffic going each way.
[99] The accused’s father stated that he was “sure” the accused and the Complainant had never been in his house together (which evidence was refuted not only by the Complainant but by the accused himself.)
[100] Although the accused’s father and sister were “sure” there was no cupboard above the toilet tank at the grandparents house in 2007, a photograph taken in 2012 confirms the existence of two screws inserted horizontally on the wall where the Complainant said there had been a cupboard. B. conceded that the only reason to have screws there would be to put a shelf.
[101] Moreover, the Defence witnesses (except the accused’s mother) admitted they discussed their evidence with one another. R. testified that when he was with the accused, B. and M., they discussed their evidence with other family members in the room and he discussed his evidence while they were in the room. G.B. testified that family members approached him to tell him about the situation and discussed their evidence in his presence. Finally, B. admitted at trial that although there was a court order excluding witnesses at the Preliminary Inquiry, she sat through the Complainant’s testimony at the Preliminary Inquiry. As such, there was an opportunity to taint their evidence.
[102] For these reasons I did not find the evidence of the accused’s sister B. or his father’s evidence to be credible or reliable. The Defence evidence must now be examined in the context of the evidence as a whole.
The Complainant’s Evidence
[103] The Complainant disclosed details of the incident eight times: to his mother, a social worker, a police officer, his mother again, a therapist, a second statement to the police officer and twice in court. This disclosure was made when the Complainant was between the ages of 8 and 12 years old. The accused claims the Complainant’s account is neither reliable nor credible because there were inconsistencies in the various accounts he gave and further disclosure was made over time. I do not agree.
[104] I find that the Complainant’s account was reliable and credible for the following reasons:
A. Although he was only eight when he made his first disclosure, the Complainant’s account of what happened was specific and clear
[105] Notwithstanding his age and the numerous times he was asked to disclose what had happened, on all occasions he was able to articulate what had happened, how, when and by whom. He consistently stated that,
(a) the incident happened at a family gathering during the summer of 2007 when he was at his grandparents home;
(b) his father had left to go and get something;
(c) he was in the bathroom using the toilet upstairs;
(d) his uncle came upstairs while he was on the toilet and entered the bathroom;
(e) his uncle leaned down, grabbed his penis and “grabbed his balls” and squeezed them hard; and
(f) the assault ended when they were interrupted.
The fact that enhanced details about the assault were provided over time does not make his disclosure less credible.
[106] The incremental disclosure the Complainant gave over time was natural under the circumstances: according to both the Complainant and his mother, this was a child who was vulnerable, and who did not feel his mother could or would protect him. His mother was ill and suffered from depression. She left him from time to time in the care of his father whom they both testified had assaulted him.
[107] The Complainant provided more detail about this incident once his mother believed him and later when she sought professional help for him. On March 6th, 2009 he disclosed for the first time that, “I shouted. I was trying to stand up to him”. On March 25th he disclosed for the first time that his uncle “put his penis in my bum” and it felt like “when you go poo”. He said the accused grabbed a towel and put it in his mouth. He said the accused took the towel from the cupboard above the toilet tank. (The Complainant’s mother says she thinks he told her the accused took the towel from the floor.) Finally, on April 24th, 2009 he disclosed that his uncle threatened to kill him and his family if he told police and he went to jail.
[108] I accept the opinion of both experts that delayed and incremental disclosure is not unusual in sexual abuse cases particularly where there has been a threat of violence.
B. There Were No Material Inconsistencies in The Complainant’s Account of the Incident
[109] There were no material inconsistencies in the Complainant’s account of the incident he says took place in the summer of 2007.
[110] The Complainant testified that during the incident, the accused took a towel from a cupboard above the toilet tank and stuffed it in his mouth. The accused, his father and sister B. all denied there was ever a cupboard above the toilet tank in his grandparents’ home. I prefer the evidence of the Complainant on this point to that of these defence witnesses (for the reasons set out at paragraphs 96 to 100 set out above).
[111] Although on one occasion the Complainant told police his grandfather came up the stairs and the incident ended, on every other occasion both before and after the time he said his grandfather came up the stairs, he had said it was his grandmother who came up the stairs. Moreover, the statement given on March 6th that it was his grandfather who came upstairs was made immediately after he stated that the bathroom was next to his grandfather’s bedroom. Viewed in the context of the number of times the Complainant was asked to give disclosure, that it was made just after mentioning the grandfather’s bedroom, and given the relative importance of this information to the allegations, this inconsistency is not sufficient to discredit his testimony.
C. There is no Reason to Believe the Complainant’s Disclosure was Influenced by Something or Someone Else
[112] There is no reason to believe someone or something planted the idea in the Complainant’s mind that he had been sexually abused and threatened. Contrary to the assertion made by the Defence witnesses B., M. and R., there is no evidence the Complainant had seen depictions or descriptions of sex before he gave his first account of the incident. At the time he gave this disclosure, no interviewing techniques or suggestions were made to the Complainant that he had been sexually abused. The words the Complainant used to describe the incident such as “it felt like when you go poo” and “he squeezed my balls really hard” are the words of a child.
[113] Contrary to the assertion by the Defence, it is not credible that the Complainant’s mother would have told her son to say he had been sexually assaulted because he had a new girlfriend. This theory is also belied by the evidence in this case that there was no prior hostility between the Complainant’s mother and the accused and that, rather than inciting her son, the Complainant’s mother sought not to have charges laid against the accused after the Complainant made his first disclosure to police.
D. Independent Corroboration of the Incident
[114] The Complainant’s testimony regarding the incident is corroborated by the following:
Rectal Bleeding
[115] Both the Complainant and his mother testified that he had rectal bleeding during the summer of 2007.
[116] The Defence points out that although the Complainant stated that he had seen a doctor within a short time after the incident, doctor’s records show that he was not seen by a doctor who examined his anus until just after he suffered his seizure in 2009. As such although his time frame was incorrect, his statement that he had been seen by a doctor who examined his anus was correct.
[117] I note that the court in the Supreme Court of Canada decision of R. v. W (R.)[^18] suggested that since children may experience the world differently from adults, they may not be able to recall precise details such as time and there may be inconsistencies as to peripheral matters.
Marked Change in his Behaviour
[118] I do not accept the Defence assertion that after the incident the Complainant exhibited the same type of anger issues he exhibited when he was between the ages of two to five years old.
[119] The anger issues experienced by the Complainant when he was two to five years old as described by G.B. are those of a child becoming angry when he did not get what he wanted, crying, calling his mother names and approximately five to seven times during the three year period, hitting himself. G.B. said the Complainant calmed down when he was given what he wanted. G.B. also stated that the Complainant’s father would never have seen him behave this way.
[120] The Complainant and his mother testified that after this incident, until after he received counselling, the Complainant hit others, damaged walls and doors and was later unaware of what had happened during an anger outburst. The Complainant also suffered from feelings of guilt and self-hate and suffered a non epileptic fit requiring him to be hospitalized.
[121] They were not precipitated by not getting what he wanted. Pictures of the holes punched in the doors and walls of the Complainant’s home as a result of these outbursts were entered as exhibits at trial.
[122] For these reasons, I believe the evidence tendered by the Complainant and his mother that the Complaint’s outbursts of anger were significantly different than the tantrums he exhibited as a young child.
Utterances During his Seizure
[123] Most importantly, I find that the Complainant’s spontaneous utterance while in a dissociated state of trauma and unaware of what he was saying at the time, confirms important aspects of his allegation of sexual abuse and uttering death threats.
[124] The Complainant’s evidence concerning the incident is consistent with the symptoms of trauma exhibited by him during his seizure on April 25, 2009. He had never suffered a seizure of this type before. The seizure was preceded earlier that day by a request to tell his mother more about how he felt during the incident and her reticence to engage in that conversation.
[125] Officer Shedes testified that during the seizure, the Complainant held his penis and said “He’s going to kill me...it hurts” and when the telephone rang expressed extreme fear panic and yelled, “It’s uncle”. Finally, the incident on April 27, 2009 where the Complainant saw two of the accused’ brothers is corroboration of the link between his disclosure of the threat made by the accused in the summer of 2007, his fear of the accused and the fact that the extreme fear was linked to the accused.
[126] I accept Dr. Wolfe’s opinion that it is harder to embellish the story where disclosure is made in the context of an emotional outburst.
[127] The evidence regarding this traumatic event leads me to believe that the Complainant suffered trauma and that the source of this trauma was the incident with his uncle, the accused. I say this not because he had the seizure but because while he had the seizure and was unaware of what was happening to him, he made statements expressing fear of “uncle”, indicated that someone was going to kill him and held his penis and behind.
[128] For all of these reasons I find the Complainant’s testimony to be both credible and reliable. When viewed in the context of the evidence as a whole, I do not find the accused’s blanket denial that the event took place to be believable nor does his evidence leave me with a reasonable doubt as to his guilt.
E. The Complainant was not Prone to Making Things Up
[129] The accused suggests that even if the Complainant’s account of the incident is credible and reliable when viewed in isolation, his evidence should not be believed because he has a history of making things up.
[130] The Complainant testified that the accused forced him to drink alcohol on some family occasions he attended with his father. The Complainant’s mother testified that when he initially disclosed this to her, he was able to identify different brands of beer (such as Milwaukee and Budweiser) and describe the taste, something that surprised her as her son was only eight years old. The Complainant’s mother testified that although she never smelled alcohol on the Complainant’s breath after he came home from these visits, the Complainant often fell asleep and was therefore brought home later. It is agreed that alcohol was served at the parties and that both the accused and his father have drunk to excess on occasion. The accused’s sisters B. and M. and G.B. testified that they never saw anyone giving alcohol to the Complainant. There were 30 or 40 people in attendance and they were both inside and outside the house. Finally, as noted above the Defence witnesses had the opportunity to influence one another’s testimony. As such I am not satisfied that the Complainant made this up.
[131] The Complainant testified that his father pushed his head under water while he was swimming and this made him afraid as he did not know what would happen. He testified that his cousins R. and B. were there sometimes but he did not believe they saw what happened on this occasion. He testified that he thought they were in the change room when this happened.
[132] The only person to testify on behalf of the Defence on this issue was B. Her testimony is not inconsistent with the Complainant’s: that is, she did not witness it. Moreover, this account could simply be a little boy’s perception of a father’s efforts to teach him to put his head under water while learning to swim.
[133] Finally, B., R. and M. testified that when the Complainant was four or five years old, he rushed in from outside his aunt’s apartment yelling that he was being shot but when they went over to look, no one was there. R. said he was with another cousin on the lower deck. M. and B. were inside their respective apartments at the time. It is not clear how much any of them could hear especially given that M. and B. were in their apartments that face a noisy six lane road. The Complainant was alone on the upper deck and no one was there to see what the Complainant saw. The Complainant does not remember this incident happening. If it did, there are a host of possible explanations for this incident and it is impossible to draw any conclusions without knowing more.
[134] On the basis of the above allegations, I do not agree that the Complainant had a history of making things up and therefore should not be believed.
Conclusion
[135] On the basis of the evidence before me, the accused’s blanket denial that the incident took place is not believable and the other evidence lead by the Defence leaves me with no reasonable doubt as to his guilt on these charges when viewed in the context of the evidence as a whole.
[136] The Complainant’s account was both credible and reliable. He described the door locking, the fondling of his genitals, the thrusting movement of the accused’s penis entering his anus, the interruption, the creaking stairs, and how much it hurt, all in the language of a little boy. He found the courage to come forward notwithstanding that the accused’s son was his best friend at the time, that his father’s family is very close, he believed they would not believe him and the accused threatened to kill him if he did tell police and he got into trouble. The inconsistencies among his many renditions of the account of the incident are minor.
[137] The Complainant’s incremental account of the incident over time is not unusual in victims of child abuse. The Complainant’s account of anal bleeding just after the incident, the marked change in his behaviour after the incident, his spontaneous fearful utterances about his uncle during his seizure-like incident and his fear upon meeting the accused’s family members further corroborate his story.
[138] Dr. Wolfe opined that it is unusual for a person to commit sexual assault without any prior grooming. However, I note that the Complainant was a very vulnerable little boy in the summer of 2007 and his evidence was believable.
[139] The evidence I believe regarding the incident itself and the corroborative evidence satisfies me beyond a reasonable doubt that the accused is guilty of sexual assault, unlawful confinement, sexual touching of a person under fourteen years of age, and threatening to kill the Complainant and his family.
[140] I therefore find the accused guilty on all counts.
Thorburn J.
Released: March 1, 2012
COURT FILE NO.: 10-10000739-0000
DATE: 20120301
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
M.C.
REASONS FOR JUDGMENT
Thorburn J.
Released: March 1, 2012
[^1]: R v Ewanchuk, 1999 CanLII 711 (SCC), 22 C.R. (5th) 1 (S.C.C.) at para. 29.
[^2]: Section 279(2) of the Criminal Code; R. v. Fatima 2006 CanLII 63701 (ON SC), 42 CR (6th) 239 at paras. 71 to 73 (Ont. S.C.)
[^3]: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320.
[^4]: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 at para 242.
[^5]: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397 at 409.
[^6]: R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 at para. 5 (C.A.).
[^7]: R. v. Hoohing, 2007 ONCA 577, 74 W.C.B. (2d) 676 at para. 15 (Ont. C.A.); and R. v. Campbell 2003 CanLII 48403 (ON CA), 57 W.C.B. (2d) 363 (Ont. C.A.).
[^8]: R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397 at 409.
[^9]: R. v. G.G. 1997 CanLII 1976 (ON CA), 115 C.C.C. (3d) 1 (Ont. C.A.) and R. v. Sanichar, 2012 ONCA 117 at para. 51.
[^10]: Kehler v. The Queen, 2004 SCC 11, 181 C.C.C. (3d) 1 (S.C.C.) at 5-6; Regina v. Betker, 1997 CanLII 1902 (ON CA), 115 C.C.C. (3d) 421 (Ont. C.A.) at 429 per Moldaver J.A. (leave to appeal refused [1998] 1 S.C.R. vi); Regina v. Michaud, 1996 CanLII 211 (SCC), [1996] 2 S.C.R. 458 at 459.
[^11]: The Queen v. K.G.B., 1993 CanLII 116 (SCC), 79 C.C.C. (3d) 257 (S.C.C.) at 300; R. v. Prasad, [2007] A.J. No. 139 (C.A.) at paras. 2-8; Regina v. K.(A.), supra at 173; Regina v. M.(W.M.), [1998] O.J. No. 4847 (C.A.) at para. 3; Regina v. Jackson, [1995] O.J. No. 2471 (C.A.) at paras. 4, 5.
[^12]: Regina v. Howe, 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (C.A.) at para. 44.
[^13]: The Queen v. G.(A.), 2000 SCC 17, [2000] 1 S.C.R. 439 at 453-4; Vetrovec v. The Queen 1982 CanLII 20 (SCC), 67 C.C.C. (2d) 1 (S.C.C.) at 8.
[^14]: Regina v. Chittick, 2004 NSCA 135, [2004] N.S.J. no. 432 (C.A.) at paras. 23-25
[^15]: R. v. W. (R.) 1992 CanLII 56 (SCC), [1992] 2 SCR 122 at paras 26 to 29.
[^16]: Wilson J. R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at pp. 54-55.
[^17]: R. v. Edgar [2010] ONCA 529 and R. v. Badhwar 2011 ONCA 266, [2011] O.J. 1541 (O.C.A.)
[^18]: Supra at footnote 15.