ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-10-40000809.0000
DATE: 20120803
AN ORDER WAS MADE PURSUANT TO S. 486.4 BANNING PUBLICATION OF THE NAME OF THE COMPLAINANT
BETWEEN:
HER MAJESTY THE QUEEN – and – G. G.
Kathy Nedelkopoulos , for the Crown
Jacob Stilman , for the Defendant
HEARD: June 18-22 and August 2-3, 2012
M.A. CODE J.
REASONS FOR JUDGMENT
[ 1 ] The accused G. G. (hereinafter, G.) is charged in a five count Indictment with sexual assault, sexual interference, use of a weapon (a belt) while committing an assault, uttering a death threat, and administering a stupefying substance (alcohol). All five offences relate to the same time period, from November 27, 2008 to October 27, 2009, and they all relate to the same complainant, T. G. (hereinafter, T.). T. is G.’s son. He was born in Jamaica in 2003 and immigrated to Canada with his mother in 2007. G. joined the family in Canada in 2008.
[ 2 ] T. was eight years old and in grade three at the time of trial. He testified about events that occurred during the relevant time period, in 2008 and 2009, when he was five and six years old. The events described by T., if true, implicate his father G. in an ongoing course of sexual abuse that would amount to most of the five offences charged. The assault with the belt appears to have occurred in Jamaica and is outside the territorial jurisdiction of Canada. The case turns almost entirely on the reliability and credibility of T.’s account, as no one else witnessed the offences that T. alleges. G. testified and denied the allegations. He admitted using a belt to discipline T. but only when the family lived in Jamaica. The defence also called two other witnesses who supported certain aspects of G.’s account.
[ 3 ] There are significant difficulties with T.’s reliability and credibility as a witness. In noting these frailties in his evidence, I should make it clear that I appreciate that the testimony of small children is not to be evaluated in the same manner, and according to the same standards, as the testimony of adults. See: R. v. B.(G.) (1990), 1990 7308 (SCC) , 56 C.C.C. (3d) 200 at 219-220 (S.C.C.); R. v. W.(R.) (1992), 1992 56 (SCC) , 74 C.C.C. (3d) 134 at 142-4 (S.C.C.); R. v. C.(H.) (2009), 2009 ONCA 56 () , 241 C.C.C. (3d) 45 at para. 42 (Ont. C.A.). I also appreciate that delayed disclosure and incremental disclosure are common features of sexual abuse cases involving children. See: R. v. D.(D.) (2000) 2000 SCC 43 () , 148 C.C.C. (3d) 41 at 66-7 (S.C.C.). Bearing in mind the principles set out in these authorities, I note the following ten circumstances which raise issues concerning T.’s reliability and credibility:
(1) He is now eight years old and in grade three. At the relevant time, in 2008-2009, he was age five and six and was attending senior kindergarten and then grade one. His young age raises a number of issues that are detailed below;
(2) Dramatic changes in T.’s account occurred over the course of the three statements that he gave to the police, with his story expanding from touching to fellatio to buggery. These changes took place in the face of denials of such conduct in his earlier statements. In addition, there were other less significant inconsistencies in his account;
(3) The final allegation of buggery, made in the third statement, is particularly suspicious as T. raised the topic himself in the second statement and denied that it ever happened. His explanation for this prior denial, when testifying at trial, was suspect as he explained that “I forgot because I had so many things in my head”. In fact, it was he who raised the subject;
(4) T.s ability to communicate is not strong as parts of his story were simply incomprehensible, both in his police statements and in his testimony;
(5) T.’s ability to observe and recall, and to separate fantasy from reality, is also open to question. He made a number of obvious mistakes in his evidence. He also referred to his “dreams” at a few critical points, when trying to explain certain issues, and it was unclear whether dreams had become inter-twined with reality;
(6) T.’s account of his mother being in the next room on two occasions, while significant sexual abuse by G. was going on, is improbable in the circumstances of this case. His account of an adult named “G. Boy” being present on one occasion, and watching an incident of significant sexual abuse being committed by G., is also improbable and it is denied by “G. Boy” (C. W.). T.’s insistence that he remembers a first incident of sexual abuse in Jamaica, that took place when he says he was three years old, is also improbable;
(7) There is a live issue as to whether T. has acquired information about sex and/or pornography from other children, based on his own evidence, or from observing his parents, based on G.’s evidence. In addition, E. W.’s evidence and G.’s evidence suggests that T. may have had access to pornography at home;
(8) The whole story about the camera and “the firefly” is very confusing and suspect and tends to suggest that there has been some influence from his mother. T. knows something about his mother using hidden cameras and video, in order to try to catch her husband engaged in misconduct, and this evidence tends to suggest that there has been some influence on his account from his mother;
(9) The circumstances in which his complaint came forward in the fall of 2009 are suspect: a volatile relationship existed between his mother and his father, with a lot of fighting and arguing, with accusations of infidelity, and with the police being called frequently; his father was admittedly the strict disciplinarian in the family; there were troubles at school, including suspicions that T. was engaged in sexual misconduct with other boys; there were strong suspicions by his mother against his father, some of which were based on fairly dubious grounds, as a result of which she questioned T. persistently, including in the face of T.’s denials; T. was not doing well at school and his mother was upset; T. was very close to his mother and he agreed that a lot had changed in his life after his father arrived in Canada. It is within this volatile and potentially unreliable context that the complaint first arose;
(10) Finally, there is no doubt that some of what T. told the police comes from his mother, as he conceded this, so there is a live issue concerning the extent of her influence on his account. In particular, she appears to have played a significant role in talking to him between the three statements, as his story expanded in increments.
[ 4 ] None of the above ten circumstances, standing alone, are determinative of T.’s credibility and reliability as a witness. Some carry greater weight than others. However, based on their cumulative impact, I would not convict on T.’s evidence standing alone. It is simply too unreliable and too unsafe a basis on which to ground proof beyond reasonable doubt. See: R. v. W.(R.) , supra at 142-3; R. v. Bickford (1989), 1989 7238 (ON CA) , 51 C.C.C. (3d) 181 at 191 (Ont. C.A.); R. v. K.(V.) (1991), 1991 5761 (BC CA) , 68 C.C.C. (3d) 18 (B.C.C.A.).
[ 5 ] Accordingly, the case turns on determining whether there is any support for his account. The only possible source of support is his mother. Unfortunately, she was a highly unreliable witness. She was completely lacking in objectivity, perhaps understandably. She repeatedly evaded questions and was defensive and argumentative. Many, if not all of her answers were calculated towards securing a conviction and supporting her son, often in circumstances where there was no objective basis for the position that she took on a particular issue. By the end of her evidence, I was of the view that little, if any, of her testimony could be accepted.
[ 6 ] I am satisfied that there is a realistic possibility, based on all the evidence, that the mother has influenced her son in making these allegations.
[ 7 ] For all these reasons, the Crown has not proved its case beyond reasonable doubt. G. must be found not guilty on all counts.
M.A. Code J.
Released: August 3, 2012
COURT FILE NO.: CR-10-40000809.0000
DATE: 20120803
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – G. G.
REASONS FOR JUDGMENT M.A. Code J.
Released: August 3, 2012