ONTARIO SUPERIOR COURT OF JUSTICE

OSHAWA COURT FILE NO.: 12617/11

DATE: 2012-08-16

BETWEEN:

Her Majesty the Queen

Applicant

— and —

P.G.

Respondent

COUNSEL:

A. Midwood, for Her Majesty the Queen, Applicant

D. Barrison, for P.G., Respondent

HEARD: February 6, 7, 8, 9, 10; March 19, 20, 21, 22, 23; May 7, 2012

J.E. Ferguson J.

REASONS FOR JUDGMENT

There is an order banning the publication of any information that might identify the complainants

Introduction

[1] This trial involves eight counts contained in an indictment dated March 4, 2011.

[2] With respect to the complainant D.D.:

i. two counts of touching for a sexual purpose, the body of a person under the age of fourteen years (Section 151 of the Criminal Code);

ii. one count of sexual assault (Section 271(1) of the Criminal Code);

iii. one count of being a person in a position of trust or authority towards a young person, touching, for a sexual purpose, that young person (Section 153(1)(a) of the Criminal Code); and

iv. one count of being a person of trust or authority towards a young person, for a sexual purpose, invite that young person to directly touch with a part of her body, his body. (Section 153(1)(b) of the Criminal Code.

[3] With respect to the complainant L.J.G.:

i. one count of sexual assault (Section 271(1) of the Criminal Code);

ii. one count of being a person of trust or authority towards a young person, for a sexual purpose, invite that young person to directly touch with a part of her body, his body (Section 153(1)(b)); and

iii. one count of touching for a sexual purpose, the body of a person under the age of fourteen years (Section 151 of the Criminal Code).

[4] The complainants are sisters. They are the step-daughters of P.G. D.D. is 18 years of age. She testified as to inappropriate touching starting when she was 8 (a child) and ending when she was 15 or 16 (a teenager). L.J.G. is 22 years of age. She testified as to inappropriate touching starting when she was 8 (a child) and ending when she was 20 (a young adult). They have two other sisters, J.G. (different last name from P.G.) who is 25, and K.D. who is 20. Their mother separated from P.G. before the complainants reported the incidents. The four girls remained with P.G. after their mother moved out.

The Law Applicable to These Reasons

The Standard of Proof

[5] The Supreme Court of Canada in R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, provides the guiding principles regarding the required standard of proof. The court states at paragraph 39 that “a reasonable doubt… is based upon reason and common sense” and at paragraph 36, that it is “logically connected to the evidence or absence of evidence”. It further states that “it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt” [Emphasis in original.] and that “more is required than proof that the accused is probably guilty – a jury which concludes only that the accused is probably guilty must acquit”.

The Applicability of the W.(D.) Analysis

[6] Of paramount importance in this case is the fact that the assessment of credibility plays the largest role in determining the outcome of this trial. R. v. W.(D.) (1991), 1991 93 (SCC), 63, C.C.C. (3d) 397 (S.C.C.) and the most recent restatement, R. v. B.D., 2011 ONCA 51 apply to this case. While there is no jury, I must instruct myself to follow the Supreme Court of Canada and Ontario Court of Appeal when determining whether the Crown has met the burden of establishing the guilt of the accused beyond a reasonable doubt to the issue of credibility. The essential test proffered by Justice Cory in R. v. W.(D.), supra, at page 409 requires as follows: First, if I believe the evidence of the accused, I must acquit. Second, if I do not believe the accused but am left with a reasonable doubt as to the guilt of the accused, I must acquit. I note that these two steps are undertaken in the context of considering all the other conflicting evidence. And third, if I do not believe the accused, am not left in reasonable doubt as to the guilt of the accused and am convinced beyond a reasonable doubt on the evidence I do accept that the accused is guilty, I must convict.

[7] In B.D., supra Blair J.A. stated the following at para 96:

As a general rule, the standard of proof beyond a reasonable doubt is not to be applied piecemeal to individual items or categories of evidence. The Crown is not required to prove or disprove beyond a reasonable doubt any single fact, or any item of evidence, unless that fact or item is an element of the offence or an element of a defence. Different considerations arise, however, when conflicting evidence is presented to the jury on an essential element and the jury is required to make credibility findings with respect to that conflicting evidence. [Emphasis added.]

[8] With respect to the applicability of W.(D.), Blair J.A. stated the following in B.D., supra at para 114:

What I take from a review of all of these authorities is that the principles underlying W. (D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if – viewed in the context of all of the evidence – the conflicting evidence leaves them in a state of reasonable doubt as to the accused’s guilt … [Emphasis added]

[9] W.(D.) is to be applied when dealing with the elements of the offence charged and the elements of any defences raised by the evidence, assuming there is conflicting evidence in relation to those elements, thus giving rise to issues of credibility.

Reporting of Abuse

[10] The Alberta Court of Appeal dealt with the behaviour of how complainants report abuse in R. v. T.E.M (1996), 1996 ABCA 312, 110 C.C.C. (3d) 179, stating: “there is no inviolable rule how people who are victims of trauma like sexual assault will behave. Some will want to raise a hue and a cry, some will want to crawl into a hole and die. Reactions vary”. Further, the court held that it is necessary to consider how a complainant acted after the alleged incident in deciding whether it is in a way consistent with her story, stating:

To assess that, the jury must consider the state of mind of the witness at the time, her age and level of maturity, her sense of confidence and composure, and the relationship between her and her alleged abuser. It may well be that the jury can draw no conclusions of consequence about her subsequent behaviour, and will decide that it is not a telling point one way or the other on the truth of her story.

[11] The Supreme Court of Canada also dealt with this in R. v. D.D. 2000 SCC 43, [2000] S.C.J. No. 44 stating:

A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

Child Witnesses and Assessing Their Testimony

[12] The complainants are young adults, when testifying ages 18 and 22. At the time of the commencement of the alleged incidents they were children. The established law regarding how to deal with the testimony of children is helpful. In R. v. B. (G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30 at 54-55, the Supreme Court of Canada dealt with the issue of the credibility of child witnesses stating:

…the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children.

[13] The Supreme Court of Canada also dealt with the approach to be given to the evidence provided by children in R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, addressing the effect of confusing some details on the overall reliability and credibility of a child witnesses’ account. The two complainants were the step daughters of the accused and his niece. One was between two and four years old when the incidents occurred, seven at the time of reporting and nine at trial. Another was between nine and ten at the time of the events, eleven at the time of reporting and twelve at trial. The third was ten at the time of the events, fourteen at the time of reporting and sixteen at trial. The court stressed that courts have “a new appreciation that 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”. The court confirms that this does not mean that the evidence of children should not be subjected to the same standard of proof as the evidence of an adult in criminal cases. The court states:

It is neither desirable nor possible to state hard and fast rules as to when a witness’s evidence should be assessed by reference to “adult” or “child” standards — to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law’s approach to children’s evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, 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 to which she is testifying.

Demeanor and Credibility

[14] In R. v. Stewart (1994), 1994 7208 (ON CA), 18 O.R. (3d) 509, the Court of Appeal of Ontario dealt with witnesses and demeanor, stating that:

It is evident from his reasons that the trial judge was impressed with the demeanour of the complainant in the witness box and the fact that she was not shaken in cross-examination. I am not satisfied, however, that a positive finding of credibility on the part of the complainant is sufficient to support a conviction in a case of this nature where there is significant evidence which contradicts the complainant’s allegations. We all know from our personal experiences as trial lawyers and judges that honest witnesses, whether they are adults or children, may convince themselves that inaccurate versions of a given event are correct and they can be very persuasive. The issue, however, is not the sincerity of the witness but the reliability of the witness’s testimony. Demeanour alone should not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on the record…

[15] The Ontario Court of Appeal in R. v. G. (G.) (1997), 1997 1976 (ON CA), 115 C.C.C. (3d) 1, dealt with demeanour and the assessment of credibility, stating:

The trial judge was correct in identifying credibility as the main issue at trial. Regrettably, however, he fell into the error of determining the guilt of the appellant almost exclusively upon his favourable assessment of the complainant’s demeanour without embarking upon any critical assessment of her testimony in the light of the evidence as a whole.

[16] Further, the court quoted from the case of R. v. Norman (1993), 1993 3387 (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.) stating:

I do not think that an assessment of credibility based on demeanour alone is good enough in a case where there are so many significant inconsistencies. The issue is not merely whether the complainant sincerely believes her evidence to be true; it is also whether this evidence is reliable. Accordingly, her demeanour and credibility are not the only issues. The reliability of the evidence is what is paramount.

Reliability of Evidence

[17] The Ontario Court of Appeal in R. v. Sanichar, 2012 ONCA 117, dealt with the reliability analysis in relation to a complainant’s testimony, particularly in light of the historical nature of the allegations and the absence of evidence in certain important areas. The court set aside the convictions as they felt that the trial judge did not engage in a proper reliability analysis respecting the complainant’s evidence. The court states the following at paras 31, 33, 34, 35, 38, and 40:

[31] There can be no doubt - ...that findings of credibility and reliability are peculiarly within the domain of the trial judge and only rarely overturned on appeal. As this Court noted in R. v. R.W.B. (2003), 2003 48260 (ON CA), 174 O.A.C. 198, at para. 9:

The role of a trial judge as a listener and observer of the evidence cannot be overstated. The trial judge is in the best position to make findings with respect to the credibility and reliability of the witness and therefore appellate courts must be deferential to the assessment of credibility made at trial.

[33] The deference that follows from this notion is premised on the proper application of the relevant legal principles, however.

[34] Even if the complainant appeared to be “sincere,” “truthful,” and “honest” – as the trial judge noted several times throughout his reasons – and even if the complainant believed what she was saying, it does not follow necessarily that what she was saying was reliable. Credibility alone, in this sense, is not enough. This is particularly important where the accused is facing charges based entirely on allegations of historical physical and sexual abuse, and where also – as here – there were serious reliability issues.

[35] Memory is fallible. Courts have long recognized that even an apparently convincing, confident and credible witness may not be accurate or reliable and that it is risky to place too much emphasis on demeanour alone where there are contradictions and inconsistencies in the evidence: see R. v. McGrath, [2000] O.J. No. 5735 (S.C.), at paras. 10-14; R. v. Stewart (1994), 1994 7208 (ON CA), 18 O.R. (3d) 509, at pp. 515-18; R. v. Norman (1993), 1993 3387 (ON CA), 16 O.R. (3d) 295, at pp. 311-15…

[38] In such cases – cases evolving out of allegations of distant events, including allegations involving historical acts of physical and sexual abuse – particular caution and scrutiny are called for in approaching the reliability of evidence. Rosenberg J.A. highlighted the need to be cautious about relying upon adult memories of childhood impressions in R. v. M.(B.) (1998), 1998 13326 (ON CA), 42 O.R. (3d) 1 (C.A.), at p. 29. Memories become increasingly frail over time. Evidence that might have existed had the matter been dealt with earlier may have disappeared. Or it may become contaminated. Life experiences can colour and distort the memory of what occurred.

[40] Finally, in the overall assessment of the evidence, there is a special need to self-instruct on the frailties of evidence concerning events from the distant past. Trials concerning distant events may call for a direction to proceed cautiously before acting on unconfirmed evidence, even in a case in which the particular circumstances do not otherwise mandate a special warning. In the application of the reasonable doubt standard, a trier of fact must be especially mindful of the absence of evidence that might have been available had the matter been prosecuted at an earlier date.

[42] ...The McGrath cautions deal with a broader worry: the inherent frailties 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.

Lack of Motive to Lie

[18] In R. v. B. (R.W.) (1993), 40 W.A.C. 1 (B.C.C.A.) the accused was convicted at trial. One ground of appeal was that the trial judge placed too much weight on the complainant’s apparent lack of motive to lie. In his reasons, the trial judge found the complainant to be convincing and had “the greatest of difficulty in conceiving why she would make the accusations that she had under these circumstances”.

[19] The Court of Appeal in that case set aside the conviction and ordered a new trial, stating that:

It does not logically follow that because there is no apparent reason for a witness to lie, the witness must be telling the truth. Whether a witness has a motive to lie is one factor which may be considered in assessing the credibility of a witness, but it is not the only factor to be considered. Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility and reliability of the complainant’s evidence be tested in the light of all of the other evidence presented.

In this case there were a number of inconsistencies in the complainant’s own evidence and a number of inconsistencies between the complainant’s evidence and the testimony of other witnesses. While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness’s evidence. There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least the trier of fact should look to the totality of the inconsistencies in order to assess whether the witness’s evidence is reliable. This is particularly so when there is no supporting evidence on the central issue, which was the case here.

D.D.

[20] D.D. testified as to the following:

(i) She is 18 and has finished high school.

(ii) Her sisters are J.G., 25; L.J.G., 22 and K.D., 20.

(iii) The 4 girls have the same father, who had nothing to do with their lives.

(iv) P.G. was her father figure and he was married to her mom. She called him dad. He attended at her soccer games; came to her school; fed them; and provided shelter.

(v) They moved in with him when she was around two years old at 2260 XXX Road in Uxbridge (“2260”) . (Because of the publicity ban I am not using the name of the street, but the locations are important to the chronology). P.G. had one child of his own who would come over and visit.

(vi) He separated from her mother when she was in grade 11. Her mother moved out in July or August. The girls stayed with P.G.

(vii) He was also very close with L.J.G. because she was a tomboy and they had a lot of things in common.

(viii) When she was in grade 6 (approximately 11 to 12 years old) they moved to 2349 XXX Road, (“2649”) a farm property also in Uxbridge.

(ix) It was normal growing up with him. Her mom was more of the disciplinarian.

(x) 1st Incident - The first incident happened at night time at 2260 when she was 8. She was sitting on his lap and they were playing cards at the kitchen table. He had his arm around her back and he felt her breast area on top of her clothing. Her mother and sisters were at home, as was his friend Shane. She was confused and did not tell anyone. She does not know why she did not tell anyone.

(xi) 2nd Incident - The second incident happened also when she was 8. They were watching T.V. in the living room. He was lying on the couch and she was beside him. He touched her chest area. She is not sure if it was on top or below her clothing. His hands moved to her vaginal area, underneath her pants and underwear. He touched her clitoris at some point. He was using his middle finger, moving it up and down in the vaginal area. She was scared. She did not say anything. She does not remember if they continued to watch T.V.

(xii) 3rd Incident - The third incident happened in the winter at 2260. The fireplace was on in the kitchen. She was either 8 or 9. After a shower she had gone to the fireplace wearing a towel to warm up. He asked her if she wanted a foot massage, which he had given her before, because she has flat feet. He rubbed her foot and then moved his hands up her calf past her knee, and then had his fingers in her vaginal area. She was down on the ground with her foot up and he was sitting on a chair. She does not believe that his finger went inside her. She got up, got dressed went to bed and did not tell anyone. Her mom and 3 sisters were home, but she does not know where they were located in the house.

(xiii) 4th Incident - The fourth incident happened maybe when she was in grade 8 going into grade 9 at 2349. It was during the summer and she was in the backyard with P.G. Her mom was at work. She was with her sisters L.J.G. and K.D. and they were drinking Vex, which P.G. supplied. She was intoxicated; she felt hot; she wanted to “puke”; and she was spinning. She got on a lawn chair and fell asleep. When she woke up she was covered with a wool blanket and her bottoms were off her body. P.G. threw her pants at her and told her to get dressed because her mom was coming home. She thinks she may have been wearing pyjama pants and cannot remember if she had on underwear. She had never consumed alcohol before that day. She does not remember if P.G. was drunk. He appeared panicked as he told her to get dressed. When her mom got home she acted like nothing happened although she was confused and mad. She was trying to get her head around what had happened. She was scared of him, but she did not want to hurt him. She thought he was a good dad other than with these circumstances.

(xiv) 5th Incident - The fifth incident occurred at 2349. She was sitting in the living room watching T.V. J.G. and her boyfriend were asleep in the room. She was lying on the couch. She looked up and saw P.G.’s face. His hands were under her pants and underwear. She thinks this is the first time he was inside her vagina, going up and down with his finger. He used his tongue. She remembers his beard. It was uncomfortable. She remembers hoping that her sister would wake up and see him.

(xv) 6th Incident - The sixth incident happened when she was in grade 9. She was not drunk. She started drinking heavily in the second semester of grade 10. She does not know why she was upstairs in his bedroom. Her mom and sisters were downstairs. She ended up lying on her stomach on his bed and her feet were hanging off the bed. He was at her feet. He took her pants down. She would have been wearing underwear. He felt her over her buttock crack and then moved to the vagina area (over her underwear). He had moved her legs apart. She felt something different and bigger. She does not know what it was. She does not remember if it was hard or soft. Her clitoris was touched. She remembered thinking that everyone was downstairs and why is he doing this. She went downstairs and does not remember what she did. When these incidents happened she would either not talk to him or she would give him attitude. When the touching did not happen she was happy with him.

(xvi) 7th Incident - The seventh incident was at 2349. She had passed out from drinking alcohol. She woke up and her underwear was down below the crotch area. Her belt was undone, but her buttons and zipper were done up. She cannot recall if anyone was around. P.G. was at home. She asked him when she woke up why her underwear was like that. She was angry with him. She does not remember what if anything he said in response.

(xvii) 8th Incident - The eighth incident happened in the kitchen after her mom had moved out of the house. She was lying on a futon. She was really intoxicated, and her head was spinning. He put her left leg on the top of the futon. She pushed it down and he picked it up again. He undid her pants and under her underwear used his hands on her. She cannot remember if he used his mouth. She believes he touched her clitoris. She cannot remember if he went inside her vagina. She was hoping that L.J.G. was going to come in to the room as L.J.G. was watching T.V. Her other sisters were upstairs sleeping.

(xviii) 9th Incident - The 9th incident occurred in the summertime when she was going in to grade 10. Her mom was still living at the house. P.G. had to do some fence work at 2349 and she was working with him. They drank a bottle of rum. It was different rum – stronger than what she was used to. They were both really drunk. The tractor trailer was parked and at some point she was leaning up against the tire. She fell asleep against a tire and was feeling drunk and sick. She remembers P.G. sitting beside her. They heard L.J.G. call out. P.G. panicked and said something like he thought they got caught and they had to act normal.

(xix) 10th Incident - This incident occurred when he tried to have her touch him. She was lying down in the living room and he grabbed her hand and placed it on his penis. He put her palm on his penis, and then closed his hand around her hand. She did not know what it was and was scared. She does not remember if he removed his clothes and if they used drugs or alcohol during that incident.

(xx) 11th Incident - This incident occurred when he tried to get her to perform oral sex on him. He had his penis really close to her mouth, in and around her mouth. She cannot remember if drugs or alcohol had been consumed.

(xxi) There were many more incidents. By the time she was in grade 11 the abuse might have occurred 3 or 4 times a week. Before her mom moved out, it occurred mostly on weekends but then it was increased. Initially, she drank alcohol only on weekends but she drank much more after her mom moved out when eventually she would drink all week. The alcohol came from P.G. He called her his drinking buddy.

(xxii) She started using marijuana with P.G. and her sisters after grade 8. She got into a daily use of marijuana after her mom left.

(xxiii) They also used cocaine. She was in the second semester of grade 10 when she used it for the first time. P.G. was with her and they did it together. Her mom did not know about the cocaine.

(xxiv) There were times she knew the touching would happen so she tried to prevent it by not drinking. He would get mad at her if she did not drink and then she would drink.

(xxv) By grade 10, second semester, things were really bad. Getting drunk and high were a way of finding something good in her life to feel good about.

[21] In cross-examination, many inconsistencies occurred between D.D.’s statements and her trial evidence and even between her direct evidence and cross-examination at trial. (It took many days to complete D.D’s evidence with many breaks and short days. She appeared to be genuinely upset when testifying). A chart detailing some of the inconsistencies is attached as Appendix A running from pages 1-40). A summary of the areas of inconsistencies is as follows:

• Playing Cards

• Couch 1 – D.D. and P.G. only

• Fireplace

• Lounge Chair

• Couch 2 – with L.J.G. and her boyfriend

• Parents’ Bedroom 2 – D.D. and P.G. only, lying on stomach

• Couch 3 – D.D. passed out alone

• Futon

• Fencing

• Touching P.G.’s Penis

• Parents’ Bedroom 1 – D.D., P.G., and mother

• Tuck in

• Stopping the Abuse

• Coming up with a Plan to Prevent the Abuse while D.D. was in the house

L.J.G.

[22] L.J.G. testified as to the following:

(i) She is 22. She has not seen her natural father since she was about 9.

(ii) P.G. was her father figure. She met him when she was 7 or 8 years old. Her mother was married to P.G.

(iii) She had a better relationship with him than she had with her mother.

(iv) He would give her good advice and was very easy to talk to. She called him dad.

(v) D.D. was close to P.G. K.D. and J.G. were not as close with him. They moved from 2260 to 2349 when she was in high school.

(vi) Her mom had moved out mid-summer of 2009 and the girls stayed with P.G. She did chores around the farm with P.G. which she enjoyed. On the morning of February 5, 2010, she went with her mother to pick up J.G. up at the Oshawa police station; who had been picked up for being impaired.

(vii) When they got back to 2349, P.G. and her mom talked to J.G. about her punishment. She was pissed off because J.G. got off so easy.

(viii) She went and bought a 40 ounce bottle of rum. She went to her friend’s house where they drank it. Very late that night she was running down the road. She turned around to get her baby sister D.D. She believes she blacked out.

(ix) She recalls someone picking her up at the end of the driveway and taking her to her mom’s apartment with D.D.

(x) She wanted her mom. When she got to her mom, she told her about what had happened without giving her a lot of details. Her mom went to the police station. A few days later she talked to the police officer.

(xi) 1st Incident – She believes she was 12 at the time of the first incident which happened on a fishing trip with P.G. at a trailer. They had been drinking. She woke up and her pants were undone and his hands were down her pants and he was rubbing her vagina. He took her hand and put it on his penis and rubbed her hand up and down. When she moved her hand he put it back. His penis felt hard. She was in shock. She thinks the next day his friend H. showed up and she acted as if nothing happened. She did not want to tell anyone because if she wrote it down it would make it true in a sense.

(xii) 2nd Incident - Her mom, P.G. and L.J.G. were drinking. She was lying on the floor in P.G.’s room and he was on the bed. He reached over and put his hand down her pants and started rubbing her. One of her sisters walked in and asked what was the matter. P.G. said that she was drunk. Although it was a pretty small room, there was enough room between the bed and the dresser to lie on the floor.

(xiii) 3rd Incident - She was between 12 and 15 at 2260. She is not sure if this is the second incident. They had all gone to bed and she was lying on her stomach in bed. P.G. came and sat on the edge of the bed and he put his hands down her pyjama pants and rubbed her vagina. He was tucking her in and gave her a kiss, which he did regularly. She was thinking to herself that someone will walk in. Her mother did walk in at some point, at which time he removed his hands.

(xiv) 4th Incident – She was between 12 and 15, at 2260. She cannot place the timing of this incident between the other incidents. She was getting her back scratched or tickled by P.G. in the living room. He went from her back to her front with his hands over her breasts.

(xv) 5th Incident – This happened when she was 20 at 2349. Her mom had moved out. She, C.J., P.G. and some friends had been drinking heavily. She woke up in P.G.’s bed under the blankets. He was also in the bed, under the covers. She felt his hand move down her thigh and buttocks onto the lower part of her stomach. She got up and went to her bedroom and was crying. Her alarm went off at 4:00 a.m. because she had to work. She acted like nothing happened. She had thought the touching was over and done because it had last happened when she was 12 to 15 years of age. Between the ages of 15 and 20 she had stopped being less of a daddy’s girl, had her own friends and was in high school.

(xvi) At the time her mom left her relationship with P.G. was not bad. She was very upset with her mom for leaving, following which she was stressed and frustrated.

(xvii) Moving in with her mother did not seem like an option because her mother had rented a two bedroom apartment. She also did not want to leave the farm because it was their life. She never asked her mom if she could move in nor was ever put to her as an option.

(xviii) The first time she was drunk was when she was 12 or 13. They consumed a lot of alcohol after her mom left. P.G. would give them alcohol. He drank with them. After her mom left, alcohol seemed to make things smoother.

(xix) There was also marijuana from P.G., which he grew. She along with friends partook in it at 2260. D.D. started doing it after grade 8. P.G. grew plants in the basement at 2260.

(xx) She did not use cocaine but was aware it was being used by D. J. and P.G. She saw the symptoms after they had taken it.

(xxi) She took P.G.’s last name as a Christmas gift to him when the abuse was not happening i.e. between 15 and 19. She had talked to P.G. about moving in with her mom and her boyfriend in Janetville, and P.G. said it was probably the best thing for her.

(xxii) L.S. had been her friend since grade 9. They dated on and off for two to three years. They had a disagreement at the end because he chose drugs over her.

(xxiii) When she confronted D.D. about the abuse, her mom was still living at the house. She had a feeling that something was up by the way that P.G. looked at D.D. She asked D.D. if their dad had touched her inappropriately. D.D. told her to “fuck off”. She asked her again and she said no. She asked her again and she was crying. She told D.D. that it was happening to her. D.D. said that he had told her that she was the only one.

(xxiv) When she came down crying, her mom asked her what was wrong. She called P.G. a couple of names, but did not confront him.

(xxv) She came up with a cover story because her mom kept asking what was wrong and why she was crying. She told her mom that she had broken up with L.S. L.S. knew she told her mom that, and went along with the story. As far as she believes, P.G. thought they had broken up as well. She believed if she told her mom what had been going on, her mom would be in jail because she would have killed him. Further, they would not have had anywhere to live.

(xxvi) She asked K.D. a couple of times if she was abused and her answer was a firm no.

(xxvii) When they talked to J.G., she said she did not want to tell anyone so as to ruin the family.

(xxviii) She then started taking D.D. with her everywhere she could.

(xxix) She thinks she witnessed the incident of abuse with D.D. at the tractor after she and D.D. had talked about the abuse.

(xxx) She went to the back field and saw the tractor. She saw D.D. laying on her back and P.G. on his side with his hands down her pants. She went back to the house then turned around, went back and yelled dad and D.D.

(xxxi) Both were drunk. P.G. was walking towards her. D.D. came stumbling after him, fell to the ground and threw up. She took D.D. to the house and put her to bed. She did not confront P.G. She did not tell anybody what she saw and does not know why she did not.

[23] In cross-examination, many inconsistencies occurred between L.J.G.’s statements and her trial evidence. A chart detailing the inconsistencies is attached as Appendix B (running from pages 41 – 51). A summary of the inconsistencies is as follows:

• Fishing Trip

• Parents’ Room 1 – on the floor

• Tuck in

• Parents’ Room 2 – in the bed

• Discussing the incidents with others

• Observing the Fencing Incident between P.G. and D.D.

L.S.

[24] L.S. testified as to the following:

(i) He first met J.G. in Grade 9 and got to know her sisters, mom and stepdad. They would hang out at the house; build a bonfire; party; drink; and listen to music.

(ii) He dated L.J.G. in 2009/2010.

(iii) He spoke to a detective on February 23, 2010 about an incident he had seen at their house after their mom had moved out. He and P.G. were making dinner at around 5:00 or 6:00 p.m. P.G. prepared the roast beef and he prepared the potatoes. P.G. was drunk. He was sober.

(iv) L.J.G. and D.D. were drunk and were napping at some point in the afternoon.

(v) P.G. disappeared after he put the meat in the oven. He finished preparing the potatoes, went upstairs to awaken everybody and “saw what I saw”.

(vi) D.D.’s room was at the top of the stairs on the left. He glanced into D.D.’s room and saw P.G. kneeling at the side of her bed. It looked like he was crying. D.D.’s shirt was up and he was grabbing her breasts. D.D. was lying on her back in the bed.

(vii) He looked in the room for maybe a second or two, likely one second. He went and woke up L.J.G.

(viii) He recalls asking P.G. where he had gone and was told that he had fallen asleep at the foot of D.D.’s bed. He recalls “thinking that it was all bullshit and he wasn’t sleeping at the foot of her bed, because he was centered in her bed first of all, over top of her, and he wasn’t sleeping.”

(ix) Before speaking with the police officer he did not talk to anybody about this because he thought “I mean what if I was wrong; right then I could – I don’t know. I didn’t want to just be the one to bring it out I guess.”

(x) There was a lot of pot and some cocaine used by P.G. and the girls. P.G. grew the pot in the backyard garden. Drug and alcohol use went up after their mother left by everyone except for L.J.G. and K.D.

K.G.

[25] K.G. testified as to the following:

(i) She is the mother of D.D. and L.J.G. (and the other two girls) and was married to P.G.

(ii) She moved out in September of 2009. The girls remained with P.G.

(iii) She asked the girls to move with her but they did not go. She does not know if they were asked as a group or were asked individually. She only remembers D.D. saying no because she was in school.

(iv) On February 5, 2010, L.J.G. called her and told her that she was coming to see her. She was crying. Eventually L.J.G. told her that P.G. was touching her and also touching D.D. L.J.G. did not provide any details about the touching but D.D. provided some details. D.D. told her that P.G. had touched her and had performed oral sex on her.

(v) This was a conversation with both girls present. She and the girls attended at the police station and she spoke to the police officer. She remembers telling him that her daughters were being abused. The details that she provided would have been those received from L.J.G. and D.D. She does not have a good memory of that night as it was very stressful. A few days later, she and her daughters went back to the police to give further video statements.

(vi) She knows she had conversations with L.J.G. and D.D. about the incidents, but does not remember the details. L.J.G. was not as specific as D.D. who was providing more details. The conversations were with all of the girls together.

(vii) Both girls were upset and were crying the night they came to see her. Her conversation with them was open ended but also included questions to elicit information from them.

(viii) It was not really an option to bring the girls when she moved, because she moved into a one bedroom apartment. She agrees that in her video statement she stated that she was feeling guilty for leaving them, and in fact she said “I left them there”. Had her daughters said that they wanted to go with her, she would have made arrangements.

K.D.

[26] K.D. testified as to the following:

(i) The only discussion she has had with her sisters is the night that she went to Janetville. She was not sure if the girls had already reported the abuse to the police when they had the discussion. They have talked about their feelings and they have attended some counselling to deal with the drug use, etc.

(ii) She does not agree that she had never heard anything about cocaine use until counselling, and that this is why it was not mentioned in her video statement. She does not know why she did not mention the cocaine use in her statement.

(iii) When she saw P.G. crying the night they went to their mother’s, she did not know what he was crying about.

(iv) Although the conversation of marijuana came up in her police interview, she never mentioned anything about a grow-op.

(v) When L.G. came to her intoxicated and said P.G. had been touching her, she knew that L.G. and P.G. had had a fight. By the next day they were happy and not fighting. She was not sure if L.G. was making up the allegations.

(vi) L.G. did not say anything to her again until February 5th. At one point the 3 of them had come to her and said that they did not want to say anything because they did not want to break up the family. She did not ask for any details. That meeting took place sometime after L.G. had told her about the touching.

(vii) She never thought that L.G. and D.D. were making the allegations up together.

(viii) Her police statement was put to her in which she indicated that she and her sisters had been talking for the past couple of days, recollecting and remembering stuff and that details had been provided about some things. At trial she explained that they were talking about their feelings but not what had happened. She agrees that she had earlier testified that they had only had one conversation, and that her police statement confirms other conversations.

(ix) She said to the detective that they were talking and then it “just kind of pieced itself together.” They were going over details to help substantiate what they were saying.

(x) She did not mention cocaine use to the detective. She agreed that if someone was using cocaine to try and take advantage of victims then it was pretty significant. She does not know why she did not mention this to the police.

Reporting of Abuse

[27] As set out above at paragraphs 10 and 11, “there is no inviolable rule how people who are victims of trauma like sexual assault will behave…” D.D. testified as to inappropriate touching starting when she was eight, and ending when she was 15 or 16. L.J.G. testified as to inappropriate touching starting when she was eight, stopping between the ages of 15 to 20, and ending again when she was 20. They did not disclose the abuse until 2010. They treated P.G. as their father. They had a discussion with their sisters, but the decision was made to not go forward with any complaints because they did not want to ruin the family. L.J.G. also testified that the abuse stopped for a significant period of time, and then restarted. (She assumed it had stopped so she did not say anything). K.D. testified that initially she was not sure if L.J.G was making up the allegations. When L.G. came to her intoxicated and said P.G. had been touching her she knew that L.J.G. and P.G. had had a fight. By the next day they were happy and were not fighting.

Child Witnesses and Assessing Their Testimony

[28] The complainants were 18 and 21 when testifying as to events that occurred when they were children and young adults.

[29] As set out above in paragraphs 12 through 15, when assessing the evidence at trial given by young adults, “In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, 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 to which she is testifying.”

[30] There were multiple inconsistencies with respect to peripheral matters which is to be expected when dealing with events where the complainants were children. As set out in the attached appendices, however there were significant inconsistencies with respect to matters that cannot be seen as peripheral. At trial both complainants were young adults. As the Supreme Court of Canada stressed:

In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, 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 to which she is testifying.

Demeanor and Credibility

[31] The inconsistencies cannot be seen as per as set out above in paragraphs 14 through 16, it is clear that the courts maintain the following:

I do not think that an assessment of credibility based on demeanour alone is good enough in a case where there are so many significant inconsistencies. The issue is not merely whether the complainant sincerely believes her evidence to be true; it is also whether this evidence is reliable. Accordingly, her demeanour and credibility are not the only issues. The reliability of the evidence is what is paramount.

[32] It was clear during the trial that the complainants sincerely believe their evidence to be true. Their emotional “instability” (particularly that of D.D. was apparent at the trial). Unfortunately, their evidence is not reliable because of the significant number of inconsistencies, some of which are set out in the appendices.

[33] The issue is not the sincerity of the witness, but the reliability of the witness’ testimony. Demeanour alone does not suffice to find a conviction where there is significant inconsistencies and conflicting evidence on the record. The complainant’s evidence is not reliable.

Reliability of Evidence

[34] As set out above in paragraph 17, it is necessary to undertake a reliability analysis with respect to the complainants’ testimony, particularly in light of the historical nature of the allegations.

[35] Even though these complainants appear to be sincere, truthful, and honest, and appear to be believing what they were saying, it does not follow that what they were saying was reliable. These are allegations of historical abuse and some of the inconsistencies are detailed in the attached appendices (the main inconsistencies). There is a special need to self-instruct on the frailties of evidence concerning events from distant past. The broader worry is that the court is dealing with inherent frailties 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. After completing this exercise I find that overall the complainant’s evidence was not reliable.

[36] The complainants plus their one sister K.D. and their mom confirmed that they discussed the issues as a group. The sisters were recalling stuff, talking together and piecing it together. It is not possible to ascertain exactly what was pieced together and who said what. These joint discussions as well make the evidence unreliable.

[37] L.S. had been drinking. His observation of the incident between D.D. and P.G. was “maybe for a second or two, likely one second”. He did not say anything because before speaking with the police officer he did not talk to anybody about this because he thought “I mean what if I was wrong; right then I could – I don’t know. I didn’t want to just be the one to bring it out I guess.” Again, he was a sincere witness but his evidence is not reliable.

Lack of Motive to Lie

[38] As set out in paragraphs 20 and 21:

It does not logically follow that because there is no apparent reason for a witness to lie, the witness must be telling the truth. Whether a witness has a motive to lie is one factor which may be considered in assessing the credibility of a witness, but it is not the only factor to be considered.

[39] In this case, although it was put to the complainants that they had a motive to be because P.G. wanted them out of their house, they did not agree with that proposition. There was no further evidence on that point. A motive to lie was not established on the evidence before the court.

[40] Regarding the evidence that was not contradicted of P.G. providing alcohol and marihuana and cocaine to under aged young people this confirms that he is an individual who possesses very poor judgment and abysmal parenting skills. He is however not on trial for these acts. The alcohol and drugs clearly would have had an effect on the witnesses’ memory.

Decision

[41] Applying the second prong of the W.D. analysis, I am left with a reasonable doubt as to the guilt of P.G. As a result, he is acquitted of all counts contained in the indictment.

The Honourable Madam Justice J.E. Ferguson

DATE RELEASED: August 16, 2012