COURT FILE NO.: 11-50000022-0000
DATE: 20120615
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – C.C.1 Accused
Elizabeth A. Moore, for the Crown
Paul Mergler and Wm. Parker, for the Defendant, C.C.1
HEARD: March 26 to April 1, 2012
REASONS FOR JUDGMENT
A.J. O’MARRA J.: (delivered orally in Court)
[ 1 ] C.C.1 pleaded not guilty to charges of sexually assaulting and sexually interfering with P.O. between January 1, 2005, and July 18, 2009 and to having in his possession child pornography between December 1, 2008 and July 21, 2009.
[ 2 ] P.O., now 14 is the daughter of S.T., the former wife of C.C.1. It is alleged that C.C.1 sexually touched and interfered with P.O. several times over a number of years starting when she was seven until she was 11 years of age. The sexual abuse is alleged to have occurred while he and/or his older daughter C.C.2, now 24 years looked after P.O. and her younger sister K. for S.T. in his home.
[ 3 ] After C.C.1 was arrested on July 21, 2009, as a result of their investigation into the alleged sexual abuse of P.O. and her description of C.C.1 having shown her videos of adults having sex with little girls, the police obtained a search warrant and seized a number of computers from his home. The police found images and incomplete downloaded videos of child pornography on two of the computers. There was no issue on the trial that the images and videos recovered from the computers meet the definition of child pornography under the Criminal Code.
[ 4 ] C.C.1 testified on the trial and denied any sexual contact or such behavior involving P.O.. He denied having shown her videos of child pornography or that he downloaded the images or incomplete files found on the computers removed from his home.
Relationship between C.C.1 and P.O.
[ 5 ] C.C.1 and S.T. grew up in Chile. After C.C.1 finished high school and one year of university, at age 19, he immigrated to Canada with his mother and younger brother. He continued to have contact with S.T., whom he had met in high school. In 1987, they married in Chile. In 1989, she immigrated to Canada. Their marriage ended in 1991. During the course of their four-year marriage, they had two daughters, C.C.2, now 24 years and M., now 21 years. In 1998, S.T. gave birth to P.O. in Mexico City where she then lived with C.C.2 and M.. They returned to Canada in 1999. Her father’s family returned P.O. to Mexico that year, a situation S.T. described as her having been kidnapped by them. However, when P.O. was 4 years old S.T. regained custody on her being returned to S.T.’s care in Canada. Subsequently, S.T. gave birth to another daughter K..
[ 6 ] C.C.1 and S.T. continued to live separately in Toronto, but they had ongoing contact, largely because of C.C.1’s continued access to his daughters M. and C.C.2. Initially, his daughters, together with P.O. and K. would be brought by their mother to visit him at his mother’s house on Q[…] Street where he lived with his mother and brother. Later, the girls would come to visit with him after he moved into his own home on T[…] Street in Toronto. His eldest daughter C.C.2 eventually moved from her mother’s home when she was 17 years to live with him.
[ 7 ] Frequently, S.T. who worked nights would ask her older daughters, M. and C.C.2 to care for their younger stepsisters, P.O. and K.. Similarly, if she wanted to go out she would request that they babysit them. After C.C.2 moved to C.C.1’s home, S.T. continued to ask her or C.C.1 to look after P.O. and K. if she had to work or she wanted to go out with her friends. C.C.2 was often unavailable and C.C.1 would babysit the girls. S.T. would often call on weekends and ask him if he would keep the girls overnight. Depending on his plans, he would usually agree. She would then pick the girls up the next day.
[ 8 ] Both S.T. and C.C.1 described their relationship as being an amicable one. S.T. testified that C.C.1 would babysit the girls, sometimes three times a month. C.C.1 said he would see them once or twice a month. Regardless of the frequency, C.C.1 looking after P.O. and K. in his home was a regular occurrence.
Disclosure
[ 9 ] On Friday July 17, 2009, S.T. asked C.C.1 if he would look after P.O., K. and one of P.O.’s friends, L., that evening. L. is the daughter of S.T.’s friend B.. S.T. and B. had to go out that night together to start a new job. His daughter C.C.2 was not home that night. C.C.1 agreed.
[ 10 ] The girls were dropped off at C.C.1’s home at approximately 11:00 p.m. P.O. 11, L. 9, and K. 7, initially sat upstairs in the living room with C.C.1 to watch a movie. L. described P.O. as sitting beside C.C.1 on a couch hugging him. The girls did not have an interest in the movie. They went downstairs to watch something else. P.O. went back up upstairs.
[ 11 ] L. testified that P.O. had been upstairs for about 20 or 30 minutes so she went up the stairs to see where P.O. was. As L. came up the stairs, she saw P.O. get a drink in the kitchen at the top of the stairs. Both girls returned to the basement. At some point P.O. told L. that C.C.1 had been doing “bad things” to her.
[ 12 ] L. testified P.O. had told her earlier that year, she believed around Christmas, the same thing, however, on this occasion P.O. told her, he was touching her and he was trying to have sex with her. P.O. told L. not to tell anyone. She also told L. that her older sister, M. would do bad things to her too. P.O. later elaborated in a statement to the police that it involved her putting ice cream on her vagina and making P.O. lick it off.
[ 13 ] After P.O. told L. not to tell anyone, she said she had a knife and she would hurt L.’s brother if she told.
[ 14 ] S.T. returned to C.C.1’s house at approximately 3:00 a.m. to pick L. up to take her back to B.’s home where S.T. planned to spend the night. P.O. was still awake, but K. was asleep, so she left them there to spend the remainder of the night. She told C.C.1 she would return in the morning to pick them up.
[ 15 ] Later that weekend L. told her mother B. what P.O. told her at C.C.1’s house. In turn, B. spoke with S.T. early Monday morning and related what L. had told her. Initially, B. and S.T. communicated by MSN text messages over the internet (Exhibit 9A) about P.O. being sexually inappropriate with L. and K. and her threatening them if they told, which S.T. copied to her daughter M. that morning. There was additional conversation between S.T. and B. before she arrived at her home in which she told S.T. that P.O. told L. that C.C.1, referred to as Tio, had touched her. Before M. and C.C.2 arrived at the house, S.T. told them there was an allegation their father had interfered with P.O..
[ 16 ] Later that morning, about 7:30 a.m. S.T. had B. and L. come to the house to tell her what L. had been told and to ask P.O. if what she had said was true. In addition to B. and L., M., her boyfriend, C. and C.C.2 with her friend, S. came to the house. When the meeting took place in the living room S.T., because the girls were nervous and believing it would be best for them, asked M. and C.C.2, along with their friends to leave the room so she could find out from P.O. if what she said to L. was true.
[ 17 ] L. testified that when P.O. was first asked if C.C.1 had done anything to her, she denied it. However, after about 10 seconds she started to cry and then said it was all true.
[ 18 ] S.T. testified she asked P.O. if she had a secret. After initially denying it, she said there was a secret and she started to cry. B. left the room and went to tell M. and C.C.2 that what she had told L. was true. M. and C.C.2 came back to the living room.
[ 19 ] S.T. asked P.O. if it was true that C.C.1 touched her body. She said that it was. When S.T. asked her where he touched her, she pointed to her breast area and her vagina. S.T. asked her if she saw his body parts and she said she saw his “thingy”. She was asked if he hurt her and she said, “Yes”, when he tried to put his thingy inside her.
[ 20 ] M. and C.C.2 were upset. M. was angry and declared that she was no longer going to live with S.T. and would move out. She left that day. Neither C.C.2 nor M. has spoken with S.T. since, both believing the allegations to be untrue and that S.T. set their father up, however, offered no basis for the belief.
[ 21 ] S.T. wanted to take P.O. directly to the police to report what P.O. had said, however, C.C.2 suggested that they should take her to the hospital to have P.O. examined.
[ 22 ] S.T. drove P.O. and C.C.2 to the Hospital for Sick Children. En route, C.C.2 texted P.O. on her phone to ensure that she was not lying. P.O.’s response was that she was not. Again, at the hospital C.C.2 pressed P.O. to tell her if it was true about her father and P.O. continued to say it was so.
[ 23 ] A member of the Suspected Child Abuse and Neglect (SCAN) unit administered a sexual assault examination kit (SAEK). The samples and swabs collected were sent to the Centre for Forensic Sciences for analysis, along with the pajamas and underwear worn by the child earlier that weekend.
[ 24 ] Later that day, during an interview with the police and Children’s Aid Society child worker, P.O. gave a videotaped statement in which she said that C.C.1 had first started to touch her “lower body parts” when she slept over at his mother’s house. She described the house as the “old house”. She said that the last time was the past weekend when she was at his house. She was with C.C.1 on the couch, the other two girls were downstairs and “he started touching my lower body part and then I was sitting on the couch, he … his lower body part and then he got into mine”.
[ 25 ] The videotape statement, which P.O. adopted when she testified, was admitted into evidence pursuant to s. 715.1 of the Criminal Code. She described what happened as follows:
P.O.: First he started kissing me on the cheek and then he went up and then he went to my chest. Then he started licking my body part and then he put his, ah, his bottom part into mine.
D.C. Sidhu: And then he put his bottom part on to yours. How did he put his bottom part on to yours?
P.O.: He laid me down on the couch and he tried to like he went on top of me.
Sidhu: Okay and what was he doing? Describe to me what he was doing when he was on top of you?
P.O.: He was going up and down.
Sidhu: Up and down.
P.O.: Those are times I felt pain when he was doing that.
Sidhu: Yeah? And what did you say anything to him?
P.O.: I told him to stop, stop and he wouldn’t stop.
Sidhu: And are your clothes on or off at the time?
P.O.: He took my pants off and my underwear off.
Sidhu: He took your pants off and he took your underwear off. And then what did he do with his clothes?
P.O.: He took off his pants too.
Sidhu: And then what --- what happened?
P.O.: He started putting his private part into me.
[ 26 ] Later in the interview she continued her description of what happened:
Lisa Weldon (CAS worker): So you said your uncle laid on top of you on the couch and he put his body part on yours and you said it hurt you. What hurt?
P.O.: I don’t know. Something on his body part was hurting me, something was stretching.
Weldon: Okay. Do you know why it was hurting?
P.O.: No.
Weldon: Do you know what his body part was called?
P.O.: Yes.
Weldon: Can you tell me what you would call that?
P.O.: Ahm, we’re learning at school, so I’m learning because what we’re doing in the development. Ahm, the penis.
Weldon: Right. The penis. So did you see that at all?
P.O.: I tried to close my eyes because it hurt me. I told him it hurt.
[ 27 ] In addition to the description of what occurred the last time she was at C.C.1’s house, she said that on another occasion he used a “toy thing”.
P.O.: But I remember once he was using this toy thing.
Weldon: Okay. Can you tell me about that?
P.O.: It was like a pink little thing and he turned it on and it vibrated.
Weldon: Okay. And where did he get that?
P.O.: I don’t know.
Weldon: Can you tell me about that day? What do you remember about that day?
P.O.: That day I was just, we were just visiting. I don’t remember why. Or we were sleeping over. And he sent my little sister, my older sister to go to the store and get bread or something and then after he made, he put this gel on my private.
Weldon: Where on your private?
P.O.: Right here. [In the video P.O. directs her hand to her vaginal area].
Weldon: Okay.
P.O.: And then he started using that pink thing that vibrated.
[ 28 ] P.O. also told them that C.C.1, who she described as her uncle, showed her videos on a grey laptop (a Compaq) that showed adults having sex with little girls.
P.O.: And he also showed me --- ahm, you know, tapes of people having ahm, you know.
Sidhu: It’s okay. You don’t have to be embarrassed.
P.O.: Having sex.
Sidhu: Okay. Were these adults having sex?
P.O.: Sometimes he showed adults with little girls.
Sidhu: With little girls? And where does he show you those?
P.O.: On his laptop.
Sidhu: On his laptop. And how old do these little girls, do you think they are?
P.O.: Like 14 and some are a little bit too like 9, 10 years I think.
[ 29 ] P.O. testified that C.C.1 touching her lower part with his lower part occurred often. Sometimes his lower part was on top of hers and other times, like, Friday, “inside”.
[ 30 ] In cross-examination when she was asked about how often “penetration” occurred she indicated she did not understand the word, although when referred to as she had as being “inside” she could not remember how many times.
[ 31 ] P.O. testified that C.C.1 told her not to tell anyone. She would tell him to stop but he would not. She said that at one point when she asked why he was doing what he was doing to her, she said his response was, “do you want me to do your little sister”. She testified she did not tell her older sisters, M. and C.C.2 because she knew they would get mad with her because he was their father and because they would tell him – both of which occurred when it came out.
[ 32 ] In the first of the videotape statement to the police, she said nothing at that time about the allegation involving her older sister M., however, shortly afterwards when she gave a second videotape statement she described what L. said she had been told by her about M..
Forensic Evidence
[ 33 ] Mr. James Sloots, a forensic biologist with the Centre of Forensic Science, testified that when the vaginal swab taken from P.O. on July 20, 2009 by the SCAN team was examined, they detected semen by the presence of a sperm cell. Once a sperm cell was located on the smear of the vaginal swab, it confirmed the presence of semen. While only one cell was detected, the remainder of the smear was not examined for more because it would not add to the confirmation.
[ 34 ] Mr. Sloots testified that a normal ejaculate might have as many as 300,000,000 sperm cells. However, a male’s pre-ejaculation semen can also contain only a few sperm cells. Further, over time semen is lost from body cavities in a number of ways. The maximum reported time periods in which semen has persisted in living persons is 7 days in the vagina, 1 day in the mouth, 2 to 3 days in the anus/rectum. Generally, semen will not persist for these maximum time periods. (See Exhibit 11 CFS report September 15, 2009)
[ 35 ] The epithelial fraction taken from the vaginal swab smear was suitable for a DNA comparison. It was found that the DNA of the epithelial fraction could not exclude P.O. as the source. With respect to the sperm fraction, Mr. Sloots testified that it was unable to generate sufficient DNA to conduct an analysis, although further attempts were made with revised methods.
[ 36 ] In addition to the vaginal swab smear, a cut-out of amylase staining found on the lower frontal panel of underwear worn by P.O. when she was at C.C.1’s home was analyzed. Amylase is a constituent of saliva, although it is found in all bodily fluids, but more so in saliva. It was found to contain a mixture of DNA from at least four males. Mr. Sloots noted the amylase could have gotten on to the pajama pants by such innocuous means as the wearer sitting on a deposit of saliva or the garment coming into contact with other clothing.
[ 37 ] With respect to the collection of the sexual assault examination kit it was admitted in an agreed statement of fact, Exhibit #21, that:
The sexual assault examination kit was collected in accordance with the suspected child abuse and neglect (scan) protocol, and R.N. Judith Waldman’s training and usual practice. The examination room was clean. Ms Waldman wore clean gloves. Each swab remained in its sterile package until she was ready to use it.
Ms Waldman did not use a speculum because of P.O.’s age, to assist in collecting a swab. Ms Waldman used the “traction” method, using her gloved hands to move the labia majora to the side. Ms Waldman inserted the swab into the opening just beyond the hymen and rolled the swab around for the vaginal tissues. Care was taken that the swab did not touch any other parts.
In some cases, Ms Waldman would also collect a separate swab from the external genitalia (labia) however, she did not do so in this case because she had received information that P.O. had showered since the incident.
Ms Waldman then immediately smeared the swab on the slide, sealed the items in their sterile packaging, placed them in their box and sealed the box.
The box was in Ms Waldman’s continuous custody until she handed it to the Toronto Police Service
[ 38 ] Mr. Sloots testified as to the protocols taken at the Centre of Forensic Science to ensure that there is no contamination of a sample analyzed. There is, as a result, uncontroverted evidence of the presence of semen in the vaginal cavity of P.O. on July 20, 2009.
Content of the Computers seized at C.C.1’s residence
[ 39 ] Detective Constable Ryan Kelly of the Technological Crime Unit, Toronto Police Services conducted an examination of four computers seized from C.C.1’s residence: an Acer, Toshiba, Dell and Compaq. On the Dell and Compaq laptops, he found images associated with child pornography. Members of the Toronto Police Services Child Exploitation Section confirmed the images to be child pornography.
[ 40 ] The images had been downloaded to the computers by use of an application called Limewire, a P2P (peer to peer) software package that allowed the user to share music and video files with other users over the internet. Neither computer was password protected. The last logon recorded use of the Compaq computer was July 20, 2009.
[ 41 ] On the Compaq computer D.C. Kelly found four photographs in the “allocated clusters” and 1,449 videos located in the “unallocated clusters” that met the definition of child pornography (see Exhibits 16A, 16B, 17 and 22 the report of Det. Bill McGarry, Child Exploitation Section).
[ 42 ] On examining the Dell computer, the police found 21 videos depicting pre-pubescent females engaged in explicit sexual acts with adult men. The Dell computer appeared to have been last operated June 7, 2008. Its monitor screen did not function.
C.C.1
[ 43 ] C.C.1 testified that he would take care of P.O. and K. from time to time for S.T. when C.C.2 was unavailable to babysit. He had heard from his daughters that S.T. would hit P.O.. So when S.T. would call to ask if he would babysit P.O. he would agree to help out to “give a sort of life” to P.O.. He denied that anything ever happened at his mother’s home or later at his home. With respect to his mother’s home, he said it could not have occurred because of the watchfulness of his mother over little children. Further, P.O. had never slept over at his mother’s home during the time that he lived there. However, he acknowledged on cross-examination that it was possible that P.O. had slept there on occasion because as he testified earlier S.T. was often late in returning to pick her daughters up.
[ 44 ] He described the gray Compaq computer as the laptop he used to keep records for his trucking business and other materials involving the Cuba/Canadian Friendship Association and the Centre for Spanish-speaking People, organizations in which he was very active.
[ 45 ] He had installed the Limewire application only to download music. Even though he could download music he did not use it much because, he did not know how to get the music to play once it had been obtained.
[ 46 ] He used the Compaq laptop until he replaced it with the Toshiba in the spring of 2009. Then the laptop was kept in the basement office area.
[ 47 ] He said the Dell computer was bought when his daughters M. and C.C.2 were in high school. The user name on the computer, TiTi referred to C.C.2. To his knowledge it had not been used for over a year because the screen was broken. Even though he said he did not use the Dell, C.C.2 testified she thought the Dell used to be her father’s before she was given it to use. She used the Acer after the Dell was broken.
[ 48 ] C.C.1 testified that while using the Compaq computer to print a document sometime in January or February 2009 he discovered what he described as “a bunch of stuff I did not like” and he deleted it from the computer. He knew it was pornography, but not child pornography. He did not know how it came to be on the computer although he had visitors frequently come and stay in the house who were volunteers in the cultural exchange programmes to Cuba he helped organize. Sometimes he would have many visitors stay at his house. In at least one instance there were as many as 15 people sleeping at his house. However, C.C.2, who lived there, said that while they would have visitors stay over there was never more than 2 or 3, all the house could accommodate.
[ 49 ] He said he spoke with C.C.2 after he found the “stuff he did not like” and told her he did not want people to use the computers to download anything and that they should be careful. He did not tell her what he found. He did not take any steps to password protect the computers or to secure the piece of paper that had the alphanumeric access code to the router for internet access in the house.
[ 50 ] He denied having shown P.O. any of the videos on the gray Compaq laptop computer as described by P.O.. C.C.1 admitted that after he learned from his daughters, M. and C.C.2 that P.O. said he had abused her and before the police arrested him, he deleted the files from the Compaq computer on July 20, 2009, even though he had deleted files found on the computer earlier that year in January or February.
[ 51 ] When asked in cross-examination why he deleted files the night before he was arrested his initial response was that it was a difficult question to answer. He knew the images were there and he did not want the added problem. If they were found he would be in more trouble. He claimed he was not trying to hide anything; he just did not want anything on his computer.
[ 52 ] When asked whether he deleted Limewire earlier that year when he first found the pornography he said that he had. He said he had re-installed it later in the spring to download a particular piece of music.
Issues
[ 53 ] In this matter, the credibility and reliability of the principle witnesses is the central issue. While the accused has testified and put his credibility in issue, because the case against him is founded on the evidence of P.O., I must first assess her evidence. If her credibility and/or reliability is found wanting I must acquit in the circumstances. I am mindful that while we should not expect children to perform in the same manner as adults, as Finlayson, J.A. stated in R. v. Stewart, 1994 7208 (ON CA), [1994] O.J. No. 811, at para. 21:
This does not mean, however, that we should subject to the testimony of children to a lower level of scrutiny for reliability than we would do adults. My concern is that some trial judges may be inadvertently relaxing the proper level of scrutiny to which the evidence of children should be subjected. The changes to the evidentiary rules were intended to make child evidence more readily available to the court by removing restraints on its use that existed previously but were never intended to encourage an undiscriminating acceptance of the evidence of children while holding adults to a higher standard.
[ 54 ] Credibility relates to the honesty or veracity of the witness and reliability has to do with the assessment of the accuracy of the witness’ testimony, such as the ability of the witness to observe, recall and recount events. (See R. v. Sanichar, [2012] ONCA 117 at para. 70, and R. v. H.C., [2009] ONCA 56 at para 41.)
[ 55 ] With respect to the issue of reliability, I note that this is not a case as in R. v. McGarth, [2002] O.J. No. 5705 (S.C.J.) or R. v. Sanichar, supra, where the complainants were testifying about events that occurred in their distant past. In those cases, the court needed to be concerned about the “inherent frailty attaching to evidence that attempts to reconstruct distant events through the prism of memory that may be coloured or distorted by the erosive impact of time and life experience”. (See R. v. Sanichar, supra, at para. 42) In this instance, the child complainant provided a description of events, some of which were alleged to have occurred only days before, to the police in a videotape statement. Notwithstanding, where there are inconsistencies and contradictions, as with any witness, I should be attentive as to whether there is confirmatory or corroborative evidence because in this instance some of the allegations go back a number of years in a child’s life.
[ 56 ] The accused has testified and as a result, he has put his credibility in issue. I am mindful that the accused has no burden of proof and I must assess his evidence pursuant to the considerations as set out in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742:
If I believe the evidence of C.C.1 or the evidence he relies on in support I must acquit.
Even if I do not believe his evidence or defence evidence in support, but I’m left in a state of reasonable doubt or uncertainty by it, I must acquit.
Even if I am not left in doubt by the evidence of C.C.1 or defence evidence relied on in support, I must consider whether I am convinced beyond a reasonable doubt of C.C.1’s guilt based on the balance of the evidence I do accept.
[ 57 ] Defence counsel contends that P.O. is neither a credible nor reliable witness due to a number of aspects of her evidence he characterized as inconsistencies and contradictions.
[ 58 ] First, defence counsel argued that she gave an initial lengthy statement to the police on July 20, 2009, which made no reference to the allegations concerning M.. It was not until the next interview that she related those details. The defence contends that the information provided as to the acts allegedly committed by M. were both lurid and detailed and as such it reflects P.O.’s ability to fabricate allegations of sexual abuse.
[ 59 ] It should be noted as a preface to consideration of this submission, on an application pursuant to s. 276 of the Criminal Code, the defence was permitted to adduce evidence with respect to alleged sexual activity between M. and P.O. on the theory it could establish P.O. had prior sexual knowledge and ability to fabricate allegations as against C.C.1. In my assessment, the evidence adduced does not establish a pattern of fabrication by the complainant of similar allegations of sexual assault involving the accused. Moreover, when raised in cross-examination by defence counsel there was no recantation by P.O. of the allegation with respect to M.. She maintained it to be true. Further, beyond M.’s denial, there is no evidence that the allegation is demonstrably false. It does not affect my assessment of P.O.’s credibility. (See R. v. Riley (1992), 1992 7448 (ON CA), 11 O.R. 3 rd 151 (OCA) at para 9, and R. v. B. (A.R.), 1998 14603 (ON CA), [1998] O.J. No. 3648 at para 15 (OCA)).
[ 60 ] Second, defence counsel contends P.O.’s evidence that the first sexual assault and interference occurred at the home of C.C.1’s mother on Q[…] Street, when she slept over, is contradicted by the evidence of her older half-sisters, M. and C.C.2. Both testified that she never slept over at that house. Moreover, their grandmother was always present and vigilant with respect to children in her home.
[ 61 ] In terms of whether the opportunity existed at C.C.1’s mother’s house, I place little weight on the evidence of M. and C.C.2 given their acute partisanship as witnesses, bent, in my view, on discrediting P.O. and her mother to assist their father. The rancor they displayed toward their mother in giving evidence was palpable and undermined any value of their evidence in an assessment of the facts or circumstances of this case. I shall discuss their evidence further below; however, with respect to the suggested inconsistency I note that even C.C.1 conceded in cross-examination that P.O. could have fallen asleep while visiting at his mother’s home because of S.T.’s habit of being late in returning to pick up her daughters.
[ 62 ] Third, counsel contents that the detail provided by P.O. of the first sexual encounter she experienced is not one often seen in such cases where there is initial fondling and a slow grooming process to ever more intrusive acts. P.O. claimed that the first sexual activity involved the accused rubbing and kissing her and putting “his lower parts on her lower parts”.
[ 63 ] There is no evidentiary basis for the submission as to how a sexual interference with children usually starts. I find no merit in the submission. There is no basis to consider the witness less credible because she recalled and described active sexual interference at the outset.
[ 64 ] Fourth, counsel argued P.O. told her story in a matter-of-fact manner devoid of emotion in the videotape statement and when she testified. Further, in her description of the events on July 17-18, 2009, at C.C.1’s home after the alleged involvement with C.C.1, she got a drink of milk and then went downstairs where L. and K. were in the basement. The implication in the submission is that the child is not believable because she was not displaying emotional distress. In watching and listening to P.O. recount in the videotape statement what she said happened, she appeared as an age appropriate 11-year-old girl in her actions and answers. I noted by the manner of her answers that in some instances she was hesitant and displayed apparent embarrassment in furtively touching or pointing to the areas of her body she said she had been touched. She was neither matter-of-fact nor emotionless. Similarly, in giving evidence on the trial, now three years older she was composed but not matter-of-fact.
[ 65 ] Fifth, P.O. having stated in her videotape statement and in evidence that C.C.1 showed her videos of little girls and adults having sex on the gray computer after the sexual assault on July 17-18, 2009 is contradicted by the results of the examination of the Compaq computer by the police. Forensic examination revealed that it had had not been accessed during that time-period.
[ 66 ] It is an apparent contradiction, however, in reviewing the statement provided by P.O., she does not say it was shown to her only at that time. She refers to having seen such videos on a number of occasions, as she stated, “sometimes he shows adults with little girls”. Her use of the word “sometimes” connotes other times, not just once. Also, she spoke of other instances with C.C.1 being shown videos of little boys and girls. I accept that she may have conflated instances. Further, in my view, the fact that such videos were contained on his computer in his home and P.O. knew about such videos and could describe their content, is both confirmatory and corroborative of her evidence.
[ 67 ] Sixth, Counsel contends that P.O.’s disclosure was not spontaneous. Her allegations came out in the context of her being confronted by allegations having been sexually inappropriate with L. and K. and her reference to having a knife. Counsel argued that she only said C.C.1 sexually assaulted her because she was afraid of her mother S.T.. The implication was that she said C.C.1 assaulted her because she wanted to avoid accusations against her and out of fear of her mother.
[ 68 ] A related suggestion arises in the evidence of M. and C.C.2 in which they were of the view that S.T. had set C.C.1 up. Both daughters suggested she asked leading questions of P.O. to have her say that it was C.C.1, although no reason was articulated by either of them for her doing so. While S.T.’s questioning of P.O. as described by S.T. could be characterized as leading, such as her asking about “his thingy”, P.O. provided details in her videotape statement that in my view were derived from what she experienced, not what she was asked.
[ 69 ] P.O.’s statement and testimony is compelling as a result of the description she provided as to what happened to her and how she felt when it happened – particularly when she said he was he was “inside” or attempting to be inside her. She spoke of the stretching she experienced and the pain. She spoke of his use of the “toy thing” that vibrates and his use of gel on her “private”. I accept that such detail was experiential and not the imagination or fabrication of an 11-year-old child. Further, the detection of semen found within her vaginal cavity is confirmatory of her description of events that occurred several days earlier. Even though the quantity was minimal, it does not detract from the fact that an 11-year-old child had semen detected in her vagina consistent with a sexual encounter.
[ 70 ] I found P.O.’s evidence to have been credible, reliable and compelling based on the detailed description she provided together with the corroborative evidence of the presence of semen in her vagina and the presence of child pornography found in the gray Compaq computer in C.C.1’s home. Further, I accept the evidence of L. that P.O. told her at C.C.1’s home on the weekend before disclosure to her mother as well as many months earlier that C.C.1 had been “doing bad things to her”. As a result, her disclosures to L. about the sexual interference pre-dated the meeting on Monday June 20, 2009 with her mother, B. and L..
[ 71 ] There is, in my view, no discernable reason in the evidence for S.T. to have “set up” C.C.1 as advanced by M. and C.C.2. S.T. was on good terms with C.C.1. Their relationship was an amicable one. Apparently, it was an advantageous relationship for S.T. due to C.C.1’s willingness to help her out by taking care of the children when she wanted or needed such assistance. There was no evidence of any animus on the part of S.T. towards C.C.1 before P.O.’s disclosure.
[ 72 ] The basis for the set-up theory advanced by the defence emanates from M. and C.C.2. In giving evidence on the trial, their animosity for their mother was palpable. They tailored their evidence to demonize S.T. as an abusive mother to P.O., who towering over P.O. browbeat her into saying C.C.1 abused her.
[ 73 ] In addition to describing S.T. as towering over P.O., it was suggested that S.T. was unaffected by the disclosure. They said S.T. was not crying after P.O. disclosed what had happened to her, contrary to S.T., P.O. and L.. C.C.2 conceded grudgingly in cross-examination that S.T. began to tear. However, M. maintained that neither P.O. nor S.T. were crying even though in an earlier statement she had said that they both had been crying. C.C.2 maintained that S.T. was yelling and towering over P.O. when asking her what happened even though she agreed, S.T. was sitting on the couch with her arm around P.O.. Further, it is contrary to the description given by L. of what happened when P.O. disclosed what happened.
[ 74 ] Surprisingly, both stepsisters even said that B., S.T.’s friend, appeared to them as faking it or acting dramatically, “like she was putting on a show” when she came out from the living room and told them P.O. had said it was true that C.C.1 had touched her.
[ 75 ] S.T.’s motive for setting up C.C.1 was not apparent in their evidence, nor was the behaviour ascribed to her by her estranged daughters borne out in the evidence of P.O. and L., whose evidence I do accept.
C.C.1
[ 76 ] I did not find C.C.1 to be a credible witness. I did not believe his denials for several reasons.
[ 77 ] First, in my view he lied to the police in his interview with them on July 21, 2009 when he said he did not know which daughter had made the allegations of sexual abuse involving him. Further, his explanation in evidence that he was saying, “I don’t know” in response to a reference in the officer’s question about whether the allegation came completely out of left field was an attempt by him to put a favourable interpretation on the response and deceive the court.
[ 78 ] M. and C.C.2 had told their father the day before, July 20, 2009, after P.O. disclosed that she had made the allegation of sexual abuse. He knew it involved P.O.. The officer asked him questions about the two girls, P.O. and K. being at his house where he would babysit them for S.T.. Then the officer asked in reference to the allegation the following:
Officer: Okay, so this is completely way out of left field that, that, now which one of the girls is making the allegation?
C.C.1: I don’t know.
Officer: You don’t know which one. Okay, does it, it, this come way out of left field that one of them would say something like this?
C.C.1: To me, yeah.
[ 79 ] His response, “I don’t know” was in reference to the question as to whether he knew which one had made the allegation. The officer confirmed his answer when he said, “you don’t know which one”. His subsequent response, “to me, yeah” is responsive to the question with respect to whether the allegation came out of left field. His attempt to explain it otherwise on the trial was obvious prevarication.
[ 80 ] Second, C.C.1 testified that he deleted the pornographic videos on his computer sometime in January or February 2009 when he came upon them as he was trying to print a document using the Compaq computer. Further, he testified that he did not know at the time that they were child pornography; he just knew they were pornographic because of the titles and he did not want them in his computer, so he deleted the files. His claim he did not know the videos were child pornography is belied by the very titles of the files he said he saw and that were found to have been deleted January 18, 2009 on the Compaq laptop:
• 7yo GUATchick gets fucked in back seat and remains silent hussyfan r@ygold pthc 1yo 2yo 3yo 4yo 5yo
• Babyj child abuse dark secret – very willing premature sexualized little girls 3yo to 7yo shamed in pedofamilies
• Strip n suck little girl pedo
The titles of the video files accessed February 27, 2009 were:
• Kinderficke – 0yo takes cum in mouth
• Hot spermed little girls
Moreover, the February 27, 2009 video files both had still images as thumbnail representations in the title directory. Det. McGarry in Exhibit #22 describes the image of the second title as depicting a 6 -10 year old girl being forced to perform fellatio on an adult male.
[ 81 ] Third, C.C.1 said that after he deleted files in January or February 2009 that he told his daughter C.C.2 he did not want people to download from the internet on to the computers and that they should be careful. C.C.2 confirmed that her father spoke to her, but it was only to tell her that he did not want people to use his computer, the Toshiba, because that was where he kept his work documents.
[ 82 ] Fourth, asked if he deleted or uninstalled the Limewire programme when he found the “objectionable” files in January’s-February 2009, he said that he had. Yet, after being told by his daughters that P.O. had said that he had sexually abused her, on July 20, 2009 before he was arrested he went back into the Compaq computer and deleted more files he said he found - files on Limewire.
[ 83 ] When questioned as to how Limewire and video file downloads were still on his computer in July after he had uninstalled the Limewire programme in January or February 2009 he said he reinstalled Limewire in May to access a particular piece of music he wanted to hear. However, C.C.1 had testified earlier that he originally downloaded the Limewire application to access music files from the internet, but he never really used it because he was not able to successfully use the files on his IPod. Not only did his assertion that he reinstalled Limewire in order to access music as an explanation for finding and deleting even more videos on July 20, 2009 ring untrue as a fabrication, it contradicted his earlier assertion that he could not effectively access the music through using Limewire. He said he could download music but he did not play it afterwards. He never played music on his computer.
[ 84 ] Fifth, C.C.1 suggested that possibly a visitor, such as one of the volunteers who passed though his home on occasion accessed the computer to download the files. If that had been the situation, the visitor would have had to access and download videos, not just twice on the Compaq computer, firstly, sometime before January/February 2009 and a second time after C.C.1 purportedly reinstalled Limewire in the Spring of 2009, but also on the Dell computer – an incredible explanation.
[ 85 ] I do not believe C.C.1’s claim that a stranger to his home downloaded over 1,400 “unique videos” found in the “unallocated clusters” of the Compaq computer with different creation dates, such as March 30, May 20, May 24, May 30 and June 8, 2007 (See Exhibit 16A and B). Similarly, the 21 videos of child pornography found on the Dell computer were created on different dates on February 16, 2006 and May 6, 2007. No stranger came into C.C.1’s home on numerous occasioned and downloaded the files. I am satisfied that it was C.C.1.
[ 86 ] Sixth, C.C.1, having accessed the computer on July 20, 2009, in order to delete further child pornography files after he learned from M. and C.C.2 that P.O. had disclosed abuse, was an attempt by him to destroy evidence that he knew would support what she said he had done. He was trying to hide evidence.
[ 87 ] In the result, I am satisfied beyond a reasonable doubt that C.C.1 sexually assaulted and sexually interfered with P.O. on a number of occasions between January 1, 2005 and July 18, 2009. Further, I am satisfied beyond a reasonable doubt that C.C.1 had in his possession child pornography. He is found guilty on all counts in the indictment.
A.J. O’Marra J.
Released: June 15, 2012
COURT FILE NO.: 11-50000022-0000
DATE: 20120615
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – C.C.1 Accused
REASONS FOR JUDGMENT (DELIVERED ORALLY IN COURT) A.J. O’Marra J.
Released: June 15, 2012