ONTARIO SUPERIOR COURT OF JUSTICE

Date: 2012-05- 01

Between:
HER MAJESTY THE QUEEN – and – A. L.

Counsel:
Alan Spiegel , for the Crown
David Maubach, for the Accused

Heard: April 18,19,20,23,25, 2012
Delivered Orally: May 1, 2012

McCOMBS J.

JUDGMENT

OVERVIEW

1 . This is a judge-alone trial involving allegations of criminal sexual misconduct upon a young child. The complainant, A. H., was born on […], 2002, and is now ten years old.

2 . The criminal misconduct is alleged to have occurred between March 22, 2005 and December 1, 2008, when A.H. was between three and six years old. The accused is A. H.’s paternal grandfather.

3 . The abuse is said to have occurred mainly when the child was staying overnight at her grandparents apartment with her older brother, D.H. With one exception, the abuse is said to have occurred in the apartment when she was sleeping in the living room on the couch with her brother asleep on cushions on the floor, and her grandmother S.L. sleeping in the adjacent bedroom. The essence of the allegations is that the accused repeatedly touched, and on at least two occasions, licked, the complainant’s vagina. As well, A.H. testified that on several occasions, the accused had her touch his penis.

4 . A.H. alleged that on one occasion, her grandmother, S. L., woke up and saw the sexual touching taking place in the apartment. She also alleged that her grandmother saw the abuse on a second occasion when the accused licked her vagina while the grandparents’ van was parked on the side of the road in the early evening in a populated area of the city of Toronto.

5 . The Crown’s case consists of the evidence of the complainant, A.H., and her mother, R. H. The accused, A.L. and his wife S. L. (the complainant’s paternal grandparents), testified for the defence.

6 . The case is exclusively fact-driven. The outcome depends upon my conclusions about the reliability of the evidence.

General principles

7 . As in all criminal cases, the accused is presumed innocent, and the Crown bears the burden of proof beyond a reasonable doubt. Moreover, because the accused and his wife both gave evidence, the principles in R. v. W. (D.), [1991] S.C.R. 742 apply. If I believe the defence evidence, or if it leaves me with a reasonable doubt, I must acquit A.L. If I do not believe the defence evidence and it does not raise a reasonable doubt, I must nevertheless consider, based on the evidence that I do accept, whether the Crown has proved guilt beyond a reasonable doubt.

8 . In weighing the reliability of a child witness, courts must bear in mind that a child’s memory and cognitive functioning differ from those of an adult. Common sense requires that a child’s testimony should not be approached using the same analytical standards applicable to the testimony of an adult. But in accepting that inconsistencies and inaccuracies are to be expected with a child witness, care must be taken to ensure that in the result, the Crown is held to the same high standard of proof beyond a reasonable doubt that is required in all criminal prosecutions.

The Evidence

9 . A.H.’s evidence - in the context of the other evidence called at trial - was very confusing. Although A.H. was doing her best to give her side of the story, it was difficult to find a consistent narrative in her evidence. Although she stuck to her core allegations about the alleged sexual abuse, I often found her descriptions of the when, where, and how of the events impossible to reconcile with the other evidence in the case.

10 . I have concluded that on the totality of the evidence, I am unable to say that the Crown has proved its case beyond a reasonable doubt.

11 . In discussing the evidence, I will discuss only some of the problems that have led to my conclusion that the case has not been proved beyond a reasonable doubt. I will refrain from discussing other factual issues because it is not necessary to do so to in order to explain my ultimate conclusion; and moreover, in my opinion, a more detailed discussion of the underlying facts would serve only to potentially compound the problems faced by the family in their efforts to move ahead with their lives in a positive way.

The Case for the Crown

(a) The evidence of the complainant, A.H.

12 . A.H. testified outside the courtroom. Her evidence was received via closed-circuit television under the provisions of s. 486.2 (1) of the Criminal Code . Pursuant to s. 715.1 of the Criminal Code , the court received and viewed exhibit 1, the complainant’s videotaped statement made in December 19, 2008, along with a transcript of the video which was also received on consent and made an exhibit.

13 . A.H. adopted the essential elements of the December 19, 2008 videotaped statement, but said that she had been confused about some of the details concerning the timing and location of events and that she has only a faint memory of the abuse that allegedly occurred when she was younger than five.

14 . A.H. testified that her grandmother twice actually saw the sexual abuse as it was occurring. It is appropriate to briefly discuss A.H.’s evidence about those two occasions.

15 . One of the occasions allegedly occurred at night while A.H.’s brother was sleeping in the living room near her. A.H. testified that her grandmother woke up and came out and saw her grandfather engaging in sexual misconduct. A.H. testified that she told the accused to quit that or she would do something.

16 . The other occasion allegedly occurred in a van owned by the accused. The complainant testified that she and her brother were in the van with her grandmother in the passenger seat and her grandfather at the wheel. She and her brother D. H. were in the second row of the three-bench van. The grandparents had been doing grocery-shopping errands and it was late in the day, but not yet dark. Although A.H. has given differing versions of the events of that day, her evidence at trial was that the accused parked the van at the side of the street in a populated area of the city of Toronto. The grandmother got out of the passenger seat and went to sleep in the back bench seat of the van. A.H.’s brother was asleep beside her in the middle bench seat. The accused got out of the van, opened the sliding side door, undid the complainant’s seat belt, pulled down her pants, and licked her vagina. The grandmother woke up and saw the abuse. She had words with the grandfather, who then returned to the front seat of the van.

17 . In cross-examination it emerged that at the preliminary inquiry, during cross-examination, the complainant had acknowledged that she had lied in her videotaped statemen of December 19, 2008 about the alleged licking incident in the van. She said at the preliminary inquiry that the accused had touched her vagina with his fingers, and agreed with defence counsel’s suggestion that her claim that A.L. had licked her vagina in the van was a lie. At trial however, she said the accused did lick her vagina in the van. She said that she lied but she is telling the truth now.

18 . She also testified that she told her mother, her father, and two of her aunts, about the abuse by her grandfather. She testified that after telling her mother, she and her brother did not stay over at her grandparents’ apartment for a while, but then the visits resumed. She testified that when the overnight visits resumed, her mother would ask her if her grandfather had done anything bad to her, and she told her mother what her grandfather had done. The visits continued.

(b) The evidence of the complainant’s mother, R. H.

19 . R.H., now aged twenty-eight, lives in a city north of Toronto with her children, A.H., D.H., her common-law husband J. J. and his father, G.J.

20 . I was impressed with the testimony of R. H. She is a committed, loving mother who was trying her best to make sense of what was happening and to protect her children, and maintain her relationship with her common-law spouse.

21 . R. H. gave evidence concerning the family background. She and A.H.’s father, M.L., had separated in 2003 and she began to live with her present spouse, J.J. There were custody issues. Initially, A.H.’s father had custody of the children, and R.H. would see them only on alternate weekends. She was aware that the children would frequently stay with their paternal grandparents, the accused and S.L., who lived near their father.

22 . R.H. said it was sometime in 2005, when A.H. was three, that she first said something about improper touching by the accused. The disclosure occurred while she was changing A.H.’s diaper. A.H. pointed to her vagina, and said that “poppa” had touched her there and had licked her.

23 . R.H. said that she was shocked, called A.H.’s father and brought her to his house to discuss it. She told A.H. to tell her father what she had told her. A.H. told her father essentially what she had told her mother.

24 . R.H. testified that A.H.’s father said to let him deal with it. R.H. testified that she was confused and decided to let the father deal with it. Neither the police nor any other agency were notified about the disclosure. R.H. testified that she initially insisted that her children not go to their grandparents’ apartment. After a while, however, she agreed to let them visit the grandparents, but not to stay overnight, and only if the accused was never alone with the children. Eventually, she relented and allowed the children to stay overnight with their grandparents, provided that the accused was never alone with the children.

25 . The ongoing custody dispute ended in late 2005. R.H. testified she was “not sure” whether A.H.’s claim of sexual abuse by the grandfather while they were living with the father was raised in the custody dispute. In any case, the custody dispute ended with a court order that resulted in R. H. gaining custody with access to the father on alternate weekends.

26 . On January 1, 2006, R.H. and her common-law spouse, J.J., took custody of the children.

27 . R. H. testified that after she got custody, the grandparents were given access to the children by their father. She testified that she told him she did not agree, but he told her it was his decision and that she should mind her own business. Although she did not want the children to be left alone there, she trusted and respected their grandmother S.L. and felt that as long as she was present, the children would be safe.

28 . R.H. testified that on February 14, 2006, just a few weeks before A.H. turned four, A.H. again told her that the accused had licked her and made him touch his birdie or wiener. She called police the same day. The police interviewed the child and subsequently, the accused and R.H.’s spouse J.J. As well, the child was taken to the SCAN unit at Sick Children’s Hospital. No charges were laid. R.H. testified that the police did not keep her informed and she was not advised of the police decision not to lay charges. She never heard from the CAS.

29 . After the allegations of February 14, 2006, R.H. refused to let their father have the children, but by the end of March, she allowed it again. After that, A.H. told her that she was seeing the accused and her grandmother sometimes, but not sleeping over. A few months later, A.H. told her mother that she was sleeping over at her grandparents sometimes when her father would not pick them up after work.

30 . R. H. was angry with the children’s father because he did not believe the allegations and did not respect the legitimate concerns R.H. had.

31 . R.H. testified that after each weekend visit, she would ask A.H. if the accused had done anything improper. A.H. always said that he had done nothing bad. During this period, A.H. never expressed an unwillingness to continue the alternate weekend visits, or to see her grandparents. On one or two occasions, R.H. allowed the grandparents to pick up the children.

32 . The situation continued more or less like that - with the mother asking A.H. after each weekend visit if the accused had done anything bad to her, and A.H. saying that he had not - until mid-December of 2008, approximately thirty-four months later, when A.H. made yet another allegation about the accused.

33 . The circumstances under which the December, 2008 allegations were made are relevant in placing them in context. A.H.’s brother had told a teacher about a domestic dispute between his mother and his step-father, J.J. The CAS was contacted, and D.H. and A.H. were both interviewed. It was during the interview of A.H. about the domestic issue between her mother and stepfather that A.H. again made the allegations against her grandfather.

34 . As a result of A.H.’s disclosure, she was interviewed on videotape on December 19, 2008 in the presence of a CAS worker and a police officer; and it is that videotaped interview that has been introduced in evidence at this trial.

35 . After the December 18, 2008 interview, the accused was charged with the offences now before the court. He has not been permitted to see the children since.

The Defence Evidence

(a) The evidence of the accused, A.L.

36 . The accused, A. L., testified in his own defence. His evidence was given in a straightforward manner. He denied all of the allegations against him. He has been with his wife S. L. for approximately forty years. He is now on a disability pension, but worked for many years for Goodwill, driving a truck and picking up and delivering donated items. He testified that he loves his family, including his grandchildren, and that he did not - and never would - do anything improper to any child.

37 . A.L. impressed me as a straightforward, uncomplicated person. His demeanour was that of a person who was confused, saddened, and frightened by the circumstances he finds himself in. I found his testimony to be believable.

(b) The evidence of S. L, the complainant’s grandmother and wife of the accused

38 . S.L. testified. She is a strong, loving grandmother. She is also dedicated to her husband and is obviously confused and devastated by the circumstances.

39 . S.L. was also a credible witness. She testified emphatically that she never saw her husband behave improperly with A.H., and never saw any conduct that caused her concern.

40 . She testified that the van incident never happened. She had been involved in an accident where she was struck by a car, and her mobility had been severely affected. Her husband had bought the van to help with her mobility issues. She testified that because of her physical limitations, she couldn’t even get into the rear seat of the van as A.H. had claimed.

41 . During her testimony, S.L. was not critical or seemingly angry at either A.H. or her mother R.H. Instead, she impressed me as a person who was simply telling the truth as she saw it. She did not strike me as a person whose evidence should be rejected simply because, as the wife of the accused, she has an interest in the outcome of the trial. On the contrary, her evidence was consistent, credible, and she was not shaken in cross-examination.

Conclusion

42 . There are deep underlying problems in the dynamics of this family. The adult witnesses each seemed to be decent, responsible, and honest. The child, A.H. also seemed believable, both in her videotaped statement, and as she gave her testimony. However, there are obvious problems with the plausibility and reliability of her allegations when her evidence is contrasted with the other evidence.

43 . The defence evidence was seemingly credible and I find no basis to reject it. On the totality of the evidence, I am unable to determine where the truth lies. It follows that the Crown has not proved the charges beyond a reasonable doubt.

44 . The accused is therefore found not guilty on all charges.

McCombs J.