ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIMJ(P) 550/10
DATE: 20120412

B E T W E E N:

HER MAJESTY THE QUEEN

Mr. M. Morris

• and -

B.S.

Mr. T. Wiley

HEARD: March 19, 20, 21, 22, 23, 2012.

REASONS FOR JUDGMENT

F. Dawson J.

[ 1 ] B.S., previously B.M., is charged with three counts of sexual assault. The charges each specify a three year time period ending on March 19, 1986. However, as this case was presented it is apparent that the allegations fall within a narrower time frame, from approximately the end of March 1983 until approximately March 20, 1984. During that time frame the complainant T.S. was a 15 year old boy living as a foster child in the home of B.S. and G.M. at F[…] Crescent in Mississauga. B.S. and G.M. had two children of their own but also took in foster children on a regular basis. Those children were placed in the home by the Children’s Aid Society.

[ 2 ] Not long after T.S. turned 16 on March 20, 1984 B.S. and G.M. separated. G.M. stayed in the F[…] Crescent residence until it was sold. On May 1, 1984 B.M. moved into a rented townhouse a few minutes drive from the F[…] Crescent home. Her children K.M.1 and K.2 accompanied her, as did one of her previous foster children, a girl named L.. The evidence is that at the time, or shortly thereafter, T.S. also moved into the townhouse. By that time he had turned 16 and was no longer a Crown ward. B.M. was no longer his foster mother.

[ 3 ] Despite a 16 year age difference between them T.S. and B.M. eventually married. They had three children together; J., who was born in late […] 1986; B., who was born in late […] 1988; and M., who was born […], 1990. The couple were not married until August 12, 1989, after their second child was born. At the time of their marriage T.S. was 21 and B.S. was 36. Photographs of B.S. at that time show that she was youthful looking and attractive.

[ 4 ] T.S. and B.S. separated 11 years later on September 20, 2001. B.S. commenced divorce proceedings in 2002. A divorce was granted in 2003. On February 21, 2003 a court ordered T.S. to pay $950 per month in child support and $1,266.66 per month in spousal support. As the years rolled by little was paid by T.S. pursuant to the court’s order. The evidence establishes that as a result T.S.’s driver’s licence was suspended, he was not able to obtain a passport, and that a warrant had been issued for his arrest in connection with the non-payment of his support obligations. He was being pursued by the Family Responsibility Office (FRO).

[ 5 ] It was in these circumstances that T.S. first went to the police and complained that he had been sexually assaulted by his former wife when he was 15 and she was his foster mother; in other words while he was living in the F[…] Crescent residence. He did so after his new partner, referred to in the evidence as A., counselled him and read him accounts of other persons who had been sexually abused.

[ 6 ] T.S. testified that after meeting A. he wanted to get his life back on track. They had a European vacation planned and he needed a passport. A. took him to see a lawyer before he went to the police. After going to the police he brought an application to vary his support obligation and to eliminate the accumulated arrears, which stood at over $150,000 at that time.

[ 7 ] Mr. T.S. swore in an affidavit filed in support of the application that he finally became aware of the “nature of his injuries” and the fact that he had been abused while he was being pursued by the FRO. It is apparent from his evidence that this was after he began to discuss his circumstances with A..

[ 8 ] T.S. also commenced a lawsuit for damages against B.S., her former husband G.M., the Peel Region Children’s Aid Society and the Province of Ontario. He then settled the lawsuit as against B.S. on the basis of her consenting to terminate and eliminate all support orders and arrears. B.S. did not admit liability in the settlement.

[ 9 ] B.S. is approaching her 60 th birthday. She is suffering from early onset Alzheimer’s disease as well as anxiety disorder and panic disorder. This made it very difficult for her to testify. Due to her medical problems she is no longer able to work. Overall, the evidence indicates that her short term memory is more affected than her longer term memory.

[ 10 ] B.S. testified and denied that there was any sexual activity between herself and T.S. while she was in the role of his foster mother at the F[…] Crescent residence. Her testimony was to the effect that sexual activity did not commence between them until sometime after they were living in the rented townhouse. I would observe that, based on her date of birth, J. must have been conceived in January 1986. Consequently, there is no doubt that sexual activity was occurring by that time.

[ 11 ] The Crown does not seek a conviction based on anything that occurred after the complainant’s 16 th birthday, at which point the foster parenting stopped when the complainant’s Crown wardship ended. It is the Crown’s position that if there was sexual activity prior to that time the accused was in a position of trust, and that although the complainant voiced no objection to the activity, there could be no valid consent because the activity was the result of the exercise of the accused’s authority as a foster mother - see s. 244(3) (d) of the Criminal Code as it read at the relevant time. The Crown relies on this provision as the age of consent was 14 at the time, and the evidence shows that T.S. was 15 when he moved into the F[…] Crescent residence.

[ 12 ] I am well satisfied that the evidence establishes the facts I have referred to so far. The contentious issues are whether the sexual activity alleged to constitute the offences occurred, and if so whether there was consent, taking s. 244(3)(d) into account. The determination of these questions requires a more detailed consideration of the evidence.

[ 13 ] As B.S. has testified and denied that the sexual assaults occurred I approach my determination from the perspective of R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742.

[ 14 ] B.S. testified in a straightforward fashion. There was nothing in her demeanour or the manner in which she gave her evidence that would lead me to disbelieve her. She testified that when the complainant moved into the townhouse she rented after separating from her husband the complainant did not share her bedroom as he said he did, but that he slept in the basement. Her evidence in this regard is supported by that of her daughter K.M.1, who testified that she recalled T.S. sleeping on a mattress in the finished recreation room of the townhouse. I do note that K.M.1 was only five or six years of age at the time she made those observations.

[ 15 ] B.S. also denied all sexual activity with T.S. prior to the year in which her mother died. Ms. B.S. became confused when asked when her mother died. That confusion was an obvious manifestation of her illnesses. Other evidence establishes that her mother died in January 1986. B.S. specifically denied the incidents of masturbation, intercourse and fellatio alleged by T.S. when he lived as a foster child at the F[…] Crescent residence.

[ 16 ] G.M. testified as a defence witness. He provided careful and detailed testimony about many things. He was cross-examined extensively and responded to questions in a manner that gives me confidence he has a reasonably good memory, considering that many of the important events in this case took place up to 29 years ago. It is apparent that Mr. G.M. still cares for B.S., in the sense that he is trying to watch over her due to her circumstances and her deteriorating state of health. He also remains as a defendant in the civil suit launched by the complainant. Notwithstanding these circumstances, which might raise concerns that he would be biased in favour of Ms. B.S., I have formed a favourable impression of Mr. G.M.’s testimony. I am satisfied that I can accept it and rely on it, particularly where he has been able to provide details that others are unable to remember or are uncertain about.

[ 17 ] Mr. G.M. worked from the F[…] Crescent home. Consequently, he was there almost all of the time. He described a normal marital relationship with B.S., sexually and otherwise. He testified that he saw nothing suspicious; no signs that there was any unusual relationship between the complainant and the accused. This is not determinative, for as we all know, illicit sexual activity is almost always carefully hidden from view. On the other hand, his testimony is made more significant by the complainant’s testimony that sexual intercourse was occurring almost daily. While T.S. said that it was often occurring outside of the house, he testified that it occurred regularly in the house as well, including in the basement level where Mr. G.M. had his office.

[ 18 ] Given B.S.’s medical condition it was very difficult to elicit evidence from her. She clearly has difficulty remembering certain things, and at times seemed to be overcome with anxiety that contributed to that difficulty. This made it particularly difficult for Crown counsel to cross-examine her. However, I did not detect anything that suggested that Ms. B.S. was deliberately avoiding answering questions. I am of the view that the distress she exhibited and the difficulties she had in answering are related to her medical condition and consistent with how her current abilities were described by both Mr. G.M. and her daughter K.M.1, whose evidence I also accept.

[ 19 ] Given these limitations on B.S.’s abilities I am not able to reach the conclusion that I accept Ms. B.S.’s testimony outright. However, I find I am not able to reject it. The question then arises under the second branch of the W.(D.) formulation, as to whether her evidence, considered together with all of the other evidence, leaves me with a reasonable doubt as to her guilt. In the context of that issue I turn to an examination of the other evidence, and in particular to the evidence of T.S..

[ 20 ] While there was considerable delay in Mr. T.S. coming forward to make his complaint, delay alone is not something which would cause me to discount his evidence. It is well understood that the victims of sexual abuse often delay in reporting their abuse, even for years, for many different reasons. However, there are many additional circumstances in the present case that must also be taken into account. It is the defence position that T.S. had a strong motive to fabricate his allegations as a means of getting out from under the huge support arrears that had accumulated. The defence also emphasizes that the complainant’s current girlfriend, A., who is also his business partner, has played a role in his coming forward with these allegations. There is evidence from Mr. T.S. that supports a finding that A.’s counselling of him changed his view of things and led him to the conclusion he had been abused and controlled by Ms. B.S. for many years, right up to the time of their separation in September 2001.

[ 21 ] My first concerns with respect to Mr. T.S.’s credibility flow from the content of the affidavit he swore on November 3, 2009 in support of his application to vary the child and spousal support orders and to eliminate the arrears. Based on the cross-examination of Mr. T.S. that took place at this trial I am satisfied that parts of that affidavit are false, and that Mr. T.S. must have known that a number of centrally important factual assertions he made in that affidavit were false or significantly exaggerated. While I conclude there are a number of exaggerations in the affidavit, three statements that I am satisfied are false stand out.

[ 22 ] First, at para. 15 of the affidavit Mr. T.S. swore that Ms. B.S., who is referred to by her maiden name of Boniface in the affidavit, “required” him to drop out of high school in his grade 9 year to work to support her and her two children. Prior to being cross-examined on his affidavit Mr. T.S. testified that when he turned 16 he dropped out of school because he could, and because he did not like school. I would also observe that he said he did this on his 16 th birthday, which was before the accused and her husband separated and over one month before Ms. B.S. moved into the townhouse with her children. Consequently, it was before she and her children were in need of support.

[ 23 ] Second, at para. 23 of his affidavit T.S. swore that Ms. B.S. “forced” him to marry her on August 21, 1989, when he was 21 years old. He also swore that he had no idea what he was doing. Based on Mr. T.S.’s own evidence, and on other evidence before me, this is simply not true. By the time of the wedding the complainant and the accused had two children. They had moved on from the townhouse to a home that Ms. B.S. purchased in Guelph. The evidence is that Mr. T.S. had separated from Ms. B.S. before they ever moved into that home, and that Mr. T.S. had another girlfriend in the intervening time before he decided to move back in with Ms. B.S.. Their second child came along after he chose to move back in and before they were married. At the time of the marriage T.S. was 21 years old and working. The marriage was planned at least to the extent that Ms. B.S.’s mother was able to arrange a small reception at her home. I reject any notion that T.S. was forced into the marriage or that he did not know what he was doing.

[ 24 ] Third, in para. 32 of his affidavit T.S. swore that Ms. B.S. had refused to work following the birth of their first child. Mr. T.S.’s testimony at this trial reveals that statement to be knowingly false. He agreed that Ms. B.S. had at least three jobs after the birth of their first child.

[ 25 ] Based on the whole of the evidence I am also satisfied that Mr. T.S., at a minimum, exaggerated in para. 17 of his affidavit when he swore Ms. B.S. did not permit him to see his family or friends. The evidence at this trial shows that there was contact with family in particular, and that Mr. T.S. certainly had the opportunity to contact his friends.

[ 26 ] By way of explanation, T.S. testified that the errors in his affidavit were at least partially explained by the fact that a lawyer had prepared the affidavit, and that he had not been as careful as he should have been when he read the affidavit over prior to signing it. In my view this is not an account that adequately explains the admittedly false and misleading aspects of the affidavit which were central to the purpose for which the affidavit was prepared.

[ 27 ] I find that the falsehoods and exaggerations in the affidavit seriously impair T.S.’s credibility. The affidavit was prepared in connection with his attempts to get out from under a mountain of arrears of child and family support. That he was prepared to be untruthful in representing the nature of his relationship with B.S. in that context reflects directly on his credibility and reliability as a witness in these proceedings, as his allegations of sexual abuse were also at the heart of his affidavit, as can be seen from paras. 7(a), (b) and (c) of the affidavit.

[ 28 ] Given these concerns about T.S.’s credibility I have examined the evidence to see if there is other evidence which supports his truthfulness and reliability concerning his allegations of a sexual relationship with B.S. at a time when he was a foster child living in the F[…] Crescent residence. I realize that there is no requirement for the existence of supporting evidence, but the existence of such evidence might go some distance towards rehabilitating Mr. T.S.’s credibility which is badly tarnished by the untruthfulness of his affidavit.

[ 29 ] The only evidence that tends to support Mr. T.S.’s evidence that he had a sexual relationship with B.S. comes from his mother, F.E.. Ms. F.E. testified that one day she ran into her son and B.S. unexpectedly in a shopping mall. She demonstrated how B.S. used one of her hands to hold her son’s hand and how B.S. had her other arm wrapped around her son’s arm and how Ms. B.S.’s head was resting on his shoulder. She described how they were strolling in this fashion and appeared to be boyfriend and girlfriend. Ms. F.E. said that she made these observations at a point in time when she believed the foster mother / foster child relationship still existed.

[ 30 ] Ms. F.E. testified that she could not say how much after the time when her son was placed in foster care this observation was made. She said her son was “about” fifteen years old. She testified she called the Children’s Aid Society and later the police but she did not give any evidence that anything was done. No evidence was called from the CAS or the police about the timing of these calls, or whether they were made.

[ 31 ] In view of the relationship that did develop between the complainant and the accused after the fostering ended, the timing of Ms. F.E.’s observation is critically important. When I look at all of Ms. F.E.’s evidence I find that her memory is generally poor for this period of time, which was many years ago. She could not recall that her other son Lee went out with a girl named Rhonda who was also a foster child of B.S. and G.M. at that time. She could not recall that B.S. and G.M. and their children had been invited for supper at her home shortly before T.S. went into foster care. I am satisfied based on G.M.’s evidence that the two families did get together in that fashion.

[ 32 ] Ms. F.E. did not seem to have a clear recollection of the circumstances leading to her son being placed in foster care. For example, she said the CAS was not involved until very late in the process. I am satisfied the CAS must have been involved at an earlier point based on the other evidence I have heard, and in particular that of G.M.. Ms. F.E. also testified that she was busy with five other children at the time of these events. She was also unaware that her son had left B.S. around the time they were moving out of the townhouse and before J. was born.

[ 33 ] When Ms. F.E. was asked specifically in cross-examination what year she saw her son and B.S. at the mall she could not say and also stated that she could not say whether or not her son was in high school. This last point is significant because T.S. testified that he repeated grade 8 and that he was in high school when he was living at the townhouse. If he was in high school at the time Ms. F.E. claims to have made the observation at the mall then it was after the fostering period was over.

[ 34 ] Ms. F.E. appeared to me to be very uncertain about the timing of this event. While I am sure she believes it was during the foster parenting period I am not able to find that it was. It may very well have been after that period of time.

[ 35 ] Given that I am unable to reject B.S.’s testimony that the allegations are false and that I have abiding concerns about Mr. T.S.’s credibility which are not allayed by any other evidence, I find I am left in a state of reasonable doubt as to whether the acts that are alleged to have been committed occurred.

[ 36 ] Many matters combine to leave me in a state of reasonable doubt, some of which I have not yet mentioned. I will list all of the factors:

(1) I am unable to reject B.S.’s denial.

(2) When T.S. came forward and committed himself to his version of events he had a strong motive to make an untruthful allegation to avoid paying huge arrears of child and spousal support that he could not afford, to avoid being incarcerated and in order to be able to obtain a driver’s licence and passport.

(3) The evidence indicates that prior to coming forward to make his allegations, and while being pursued by the FRO T.S. “went underground”. He could not be found, even by a private investigator hired by his mother. When he did come forward it was after seeing a lawyer and was clearly linked to his desire to get out from under the family law problems that were making life very difficult for him.

(4) The complainant’s girlfriend A., who is described in the evidence as having a counselling background, counselled him in a manner that led him to the subjective realization that he had been abused, controlled and manipulated for many years. A. read him accounts of others who have been abused. A. was not called as a witness.

(5) T.S. was asked by the CAS back in 1983 whether there was any sexual relationship between him and B.S.. He was asked that during the course of an investigation of another foster child in the home named K.3 who had sexually assaulted K.M.1, then aged five. T.S. agrees that he told the CAS worker there was no such relationship.

(6) T.S. testified that he told the CAS worker in 1983 that there was no such relationship, in part, because the accused told him to. However, when asked a direct question at the preliminary hearing as to why he denied any relationship when interviewed by the CAS worker, no mention was made of the accused telling him to give that response. In addition, Crown counsel agrees that the complainant’s trial testimony that he told the police of this when interviewed is incorrect.

(7) Cards and family photographs put to the accused during his cross-examination at this trial tend to demonstrate that Mr. T.S.’s claims to manipulation, control and isolation by the accused are either exaggerated or untrue.

(8) T.S. testified that when he and the accused arrived home on the night K.M.1 was sexually assaulted by K.3, G.M. asked him to beat K.3 up. He testified that K.3 was present at the time. G.M. testified that by the time the accused, the complainant and another foster child named L. came home that night K.3 had already been taken from the home by the police. I accept G.M.’s evidence on this point, which stands uncontradicted by any evidence from the police or the CAS. As previously indicated, I found G.M. to be a careful and truthful witness. It follows that I reject T.S.’s evidence that K.3 was present and that G.M. told him to hit K.3.

(9) B.S. testified that one of the reasons why she separated was because she blamed her then husband G.M. for what happened to her daughter K.M.1. K.M.1 was sexually assaulted by K.3 while in G.M.’s care. The existence of this explanation for their separation reduces the strength of any available inference that the couple may have separated due to an improper relationship between the complainant and the accused.

(10) I accept G.M.’s testimony that B.S. stopped using birth control pills prior to the birth of their children and did not use them thereafter as far as he was aware. He knew what birth control pills looked like and never saw any around the F[…] Crescent residence. B.S. testified to the same effect. This evidence is at odds with T.S.’s testimony that the accused was using birth control pills throughout their relationship and tricked him into getting her pregnant by stopping them without telling him after they moved into the townhouse.

[ 37 ] Given that I am left in a state of reasonable doubt on the issue of whether the acts said to constitute the sexual assaults ever took place B.S. is found not guilty on all charges. In these circumstances there is no need to consider whether there was an exercise of authority that vitiated consent.

F. Dawson J.

Released: April 12, 2012

COURT FILE NO.: CRIMJ(P) 550/10
DATE: 20120412

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – B.S. REASONS FOR JUDGMENT F. Dawson J.

Released: April 12, 2012