ONTARIO
SUPERIOR COURT OF JUSTICE
DATE: 20121012
BETWEEN:
HER MAJESTY THE QUEEN Applicant
- and -
D.F.F. Respondent
Patricia Garcia, for the Applicant/Crown
Harry Doan, for the Respondent
HEARD: March 26, 27, 28, 30, 2012 and September 24, 25, 26 27, 2012 and October 10, 2012
Kelly j.
REASONS FOR DECISION
[1] Mr. D.F.F. has been charged with one count of sexual interference and one count of sexual assault on his niece. It is alleged that this occurred when Mr. D.F.F. was 19 years of age and the complainant was 6 years of age. The allegations were reported to police approximately 6 years after they are said to have occurred. Mr. D.F.F. has pleaded not guilty to both offences.
[2] Mr. D.F.F. testified. He denies that he touched the complainant for any improper purpose despite an inculpatory statement given within hours of arrest. After a voir dire, I found that Mr. D.F.F. had made the statement voluntarily.
[3] I am cognizant that in this case, the Court’s analysis of the evidence is to be guided by the principles set out in R. v. W. (D)[^1]. In considering this analysis, I find that the evidence of Mr. D.F.F. raises a reasonable doubt. However, even if I had not found that to be the case, I would not have convicted Mr. D.F.F. in any event. What follows are my reasons.
The Evidence
(i) The Complainant
[4] The Court heard evidence of allegations in this matter through the evidence of the complainant. A videotaped statement was provided to the police on April 23, 2009. It was played and adopted by the complainant pursuant to s. 715.1 of the Criminal Code, R.S.C., 1985, c. C-46.
[5] The complainant alleges that when she was approximately 6 years of age, Mr. D.F.F. called her into his bedroom, pulled down her pants and underwear, and undressed himself from the waist down. The complainant says that Mr. D.F.F. “put his penis in my butt”.
[6] The complainant does not suggest that Mr. D.F.F. penetrated her anus with his penis, but that he placed his penis between her buttocks. This, she says, happened at least two times and possibly more. Little other detail was provided by the complainant.
(ii) The Defence Evidence
[7] Mr. D.F.F. testified that he and his family had moved from Ecuador to Canada for a better life. At the relevant time, eleven family members were living in a two-bedroom apartment. Included in that group were the complainant and Mr. D.F.F..
[8] Mr. D.F.F. testified that he commenced a romantic relationship with the half sister of the complainant, Ms. K.N., who was also his niece. She was 18 years of age at the time and the relationship started approximately one month before these allegations arose. He advised that his family and members of their church found out about the relationship, throwing the close family into chaos. This was confirmed by K.N. and Mr. D.F.F.’s mother who testified before me.
[9] Mr. D.F.F. advised that K.N.’s parents (R.V. and M.) were particularly distraught by their relationship. This was confirmed by all family members who testified.[^2] He claims that they did what they could, including contacting the police on a regular basis, to try and stop the relationship. He claims that they were trying to put him in jail for “taking K.N. away from them”. K.N.’s father had threatened to stab him and made other threats during this time. Despite police checks, it could not be confirmed that K.N.’s parents did, in fact, contact the police.
[10] Mr. D.F.F. testified that he, himself, had contacted the police in an attempt to pre-empt any further allegations from K.N.’s father. (However, police checks could not confirm this either.) The family was in an uproar. It was particularly difficult for Mr. D.F.F. in the weeks leading up to his arrest and he described it as a “pretty stressful three weeks”.
[11] Mr. D.F.F. was training as an apprentice to become a crane operator at the time of the disclosure of his relationship with K.N.. He said that he became so despondent over the family reaction to his relationship with K.N. that he and his mother traveled to New York City for a couple of weeks. It was his intention to begin a new life there, but he was unable to do so because he could not find a job. Mr. D.F.F. remained in New York City for approximately two weeks. Mr. D.F.F.’s mother confirmed that they did, in fact, travel to New York.
[12] Mr. D.F.F. and his mother soon returned to Toronto. Mr. D.F.F. was able to get a job where he had commenced his apprenticeship, but his responsibilities were reduced because he had left his position without notice when he went to New York City. Mr. D.F.F. testified that his employer was annoyed but allowed him to drive a truck rather than train to become a crane operator. This, Mr. D.F.F. contends, added to his depression.
[13] On the date that Mr. D.F.F. was arrested, he said that he received a telephone call from his sister, S.F.. He concluded from that conversation that the family was still in turmoil over his relationship with K.N.. They thought that he was coming back to Canada to take K.N. away. This further distressed Mr. D.F.F., he says, because he was hoping that everything would get back to “normal”.
[14] Mr. D.F.F. says that as he was driving home, he began to cry. He was feeling guilty for the havoc created by his relationship with K.N.. He says that he did not know how to resolve such issues.
[15] K.N. called Mr. D.F.F. on his way home from work. This was at approximately 8:30 p.m. She confronted him and told him that the complainant was alleging that he had touched her inappropriately. He denied it. The call ended with K.N. telling Mr. D.F.F. that she would obtain further details and get back to him.
[16] Mr. D.F.F. testified that he thought the current allegations were yet another ploy of K.N.’s parents to ensure that the relationship between he and K.N. would end permanently. He said that he wanted to confront K.N.’s father and certainly did not believe that he would be arrested. He did not confront K.N.’s father that evening because he was too tired.
[17] Mr. D.F.F. testified that he got home and he was exhausted. He had arisen at 4:30 a.m. and had worked until approximately 8:30 p.m. He took a shower, got into his bed clothes and was approaching sleep when the police arrived at his home. Mr. D.F.F. testified that he heard his brother talking to somebody at the door and when he heard his name, he came out of the bedroom and spoke with the police.
[18] Mr. D.F.F. said that he thought the police visit might have something to do with either K.N. or the complainant. He knew it was coming from “them” (K.N.’s family) and he “did not really care”. He viewed the police arrival as “finally” a chance to explain what was going on “about the situation”. He invited the police into the kitchen to discuss the allegations that had most recently arisen from K.N. and her parents. The police declined.
[19] Mr. D.F.F. advises that he was arrested, given his rights to counsel and taken to the police station. He was not advised of the name of the complainant at that time. At no time did any police officer threaten or induce Mr. D.F.F. to give a statement. He simply claims that he was so depressed about what had gone on with K.N. and her family over the prior three weeks that he did not have an operating mind when he admitted to touching the complainant for a sexual purpose. I rejected that submission and held that the statement was made voluntarily.
[20] During the videotaped statement, P.C. Feagan advised Mr. D.F.F. that he had been charged with sexual assault and sexual interference regarding the complainant. He also advised him that the charges were serious and gave a brief overview of the allegations: that he had removed the pants of the complainant; that he had removed his own pants and that he had touched the buttocks of the complainant.
[21] At no time did the officer advise Mr. D.F.F. that it was alleged that he had touched the buttocks of the complainant with his penis. In fact, the word penis (or factual equivalent) was never used during this interview at all.
[22] At times the officer minimized the conduct of Mr. D.F.F., suggesting he was simply “young”, “curious” and that he had made a “mistake”. For example the following exchange took place during the statement:
Feagan: So she’s saying that you took her into a room at the apartment, took her pants off and started touching her butt. Okay so you touched her butt. It’s not like you raped her or anything. Were you curious? You were a younger man then. How old would you have been back then?
D.F.F.: Mmm, around 15 I think.
Feagan: 15? So 15. You’re curious. Your hormones are going crazy ‘cause you’re a guy. Were you just curious to see – see what it felt like?
D.F.F.: Yeah. …
[23] Eventually, the following exchange occurred:
Feagan: … They say you took their [sic] pants off and you touched their [sic] butt.
D.F.F.: You know what? I’m gonna save you the trouble so yeah – it did happen right?
Feagan: Yeah.
D.F.F.: I got nothing to explain. I don’t know what I was thinking.
Feagan: Well tell me what happened.
D.F.F.: Like I can’t really remember. Pretty much what she said there. I don’t even know what exactly happened.
[24] Thereafter, Mr. D.F.F. was asked approximately six times, “what happened” to which he responded that he could not remember, that “it’s just pretty much what she is saying there”, “I don’t know”, “do I need to say more?”. No further details were provided.
Analysis
[25] As stated above, I concluded at the conclusion of the voir dire that the statement given by Mr. D.F.F. was admissible because it was made voluntarily. During the voir dire, I did not inquire into the actual truth or falsity of the statement. Accordingly, I must now deal with the quality, weight and reliability of the statement.[^3]
[26] While I appreciate that what people freely say which is contrary to their interest is probably true, I find that there are circumstances that lead me to the conclusion that Mr. D.F.F.’s statement is an exception to that rule.
[27] Firstly, the admission is lacking in detail. It is vague and unconvincing. Mr. D.F.F. provides little detail and only admits to what “she said” and says that he does not know exactly what happened.
[28] Crown Counsel suggests that there is detail in that Mr. D.F.F. suggested that the assaults happened in the bedroom in the apartment. However, a review of the videotape would suggest that Mr. D.F.F. simply advised the P.C. Feagan that there was a bedroom in the apartment in response to a direct question from the officer about bedrooms. He did not say that the assaults occurred there.
[29] Further, Crown Counsel suggests that Mr. D.F.F. advised the police that the assaults are alleged to have occurred at the apartment building as opposed to a house that Mr. D.F.F. shared with the complainant. However, a review of the videotape indicates that the building was raised by Mr. D.F.F. in the nature of a question rather than suggesting he assaulted the complainant in the apartment building.
[30] Secondly, I accept the reasons of Mr. D.F.F. for providing the “confession” that he did which, in my view, make it unreliable. Those reasons include the following:
a. that he felt defeated and there was no way out;
b. there was nothing he could do about it;
c. he was tired, stressed and depressed;
d. that he just wanted it over with;
e. that he thought that this “would put a stop to all this craziness that had been going on”;
f. that he “got what he deserved” for having a relationship with K.N.;
g. he wanted the matter dealt with promptly because “what would the judge think” if he or she knew about his relationship with K.N.;
h. that he was concerned about his family;
i. that he had no money for a lawyer;
j. that nothing happened with the complainant so that it could not be serious;
k. he was overwhelmed;
l. the seriousness of the offences were diminished by the officer during the interview;
m. he did not really know the details so that he did not know what he was confessing to; and
n. “the easy way out” was to let everything happen and deal with the consequences.
[31] In coming to my conclusion, I am certainly cognizant of some of the frailties in the evidence of Mr. D.F.F.. For instance, he suggests that he desperately wanted to speak to the police about the tactics being employed by K.N.’s parents in attempting to end their relationship. Despite the perfect opportunity to do so upon his arrest, he failed to do so.
[32] Further, Mr. D.F.F. suggests that he contacted the police with respect to the harassment initiated by the complainant’s parents. However, there is no record of same.[^4]
[33] Notwithstanding the frailties of Mr. D.F.F.’s evidence, I find that it has raised a reasonable doubt. As I have set out above, even had I not accepted that Mr. D.F.F.’s evidence raised a reasonable doubt, I would not have convicted in any event.
[34] Put simply, I am not persuaded that Mr. D.F.F.’s guilt has been proven beyond a reasonable doubt. The evidence of the complainant was not reliable. As stated in R. v. Sanichar,[^5] the reliability of the witness’ testimony (the complainant in this case) is often gauged by the witness’s ability to observe, recall and recount the events in issue.
[35] The complainant was 15 years of age at the time she testified. She was sworn in at the commencement of her evidence and her videotaped statement was played. Thereafter, she was examined and cross-examined. She had a basic ability to perceive, remember and communicate. However there were significant deficiencies in her evidence. Although I recognize that a period of approximately nine years had elapsed since the allegations are said to have occurred, she had little recollection of the events and details which, in my view, significantly affects the weight of her evidence.[^6]
[36] Put simply, evidence of the complainant is too bereft of detail for me to find that it is reliable. The allegations of the complainant are bald ones without any detail provided. For example, the complainant could not recall the following when direct questions were put to her by Counsel:
a. if Mr. D.F.F.’s penis “entered” her anus;
b. if Mr. D.F.F. used his hands to “spread” her “butt”;
c. if Mr. D.F.F. moved his penis around when he put his penis in her butt;
d. if she felt any pain at the time;
e. if she felt any lubrication (liquid or fluid) on his penis or her own body at the time;
f. if Mr. D.F.F. used much pressure to hold her down;
g. if Mr. D.F.F. used anything more than his hands to hold her down;
h. if Mr. D.F.F. ejaculated during the occurrence;
i. if there was any fluid left on her body when this occurred;
j. if Mr. D.F.F. cleaned off any other part of his body following the occurrence;
k. if Mr. D.F.F. cleaned off any part of her body;
l. if she was bleeding as a result of the incident;
m. if she was physically injured as a result of these alleged assaults;
n. whether she was in excruciating or severe pain following the assaults;
o. if Mr. D.F.F. said anything to her following the incident;
p. if she tried to struggle or shouted while Mr. D.F.F. assaulted her;
q. whether she screamed;
r. where her mother or grandmother were at the time of these incidents;
s. whether her mother was working at the time of the incidents;
t. whether Mr. D.F.F. was working at the time;
u. whether Mr. D.F.F. was going to school at the time;
v. what time of day the assaults are alleged to have occurred;
w. what month the assaults are alleged to have occurred;
x. if Mr. D.F.F. remained in the apartment after the incidents are alleged to have occurred;
y. what she did after the incidents are alleged to have occurred;
z. who was taking care of her when her mother was not home;
aa. if there were other adults in the home when the incidents are alleged to have occurred;
bb. if there were other children in the home when the incidents are alleged to have occurred;
cc. whether the door to Mr. D.F.F.’s room was open or closed when he was alleged to have assaulted her;
dd. how long the incident is alleged to have lasted;
ee. how many beds were in the room where she is alleged to have been assaulted;
ff. whether there were bunk beds in the room;
gg. how big the room was;
hh. if there were locks on the bedroom doors;
ii. how old Mr. D.F.F. was at the time of the alleged incident;
jj. how long she lived in the apartment; and
kk. how long her sister K.N. lived in the apartment.
[37] While I appreciate that young witnesses do not always have the same ability as adult witnesses to recall precise details or to describe events fully and accurately, I simply cannot rely upon the evidence of the complainant in these circumstances.
Conclusion
[38] For the abovementioned reasons, Mr. D.F.F. is acquitted of both counts before the Court.
Kelly J.
Released: October 12, 2012
DATE: 20121012
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N:
HER MAJESTY THE QUEEN Applicant - and - D.F.F. Respondent
REASONS FOR DECISION Kelly J.
Released: October 12, 2012
[^1]: (1991), 63 C.C.C. (3d) 397 (S.C.C.), https://www.canlii.org/en/ca/scc/doc/1991/1991canlii93/1991canlii93.html
[^2]: The following family members were called by the defence: Ms. K.N. (the niece of Mr. D.F.F. and half sister of the complainant); Ms. S.F. (the sister of Mr. D.F.F. and aunt of the complainant) and Ms. R.V. (the mother of Mr. D.F.F. and grandmother of the complainant).
[^3]: See: R. v. Hodgson, [1998] 2 S.C.R. 449 at paras. 19-21, https://www.canlii.org/en/ca/scc/doc/1998/1998canlii798/1998canlii798.html
[^4]: P.C. Susana Mussoduart testified in reply. She advised that she checked all police data bases and there are no records of any calls made either by K.N.’s parents or Mr. D.F.F.. However, the systems would not advise if any calls were made to the general number as opposed to 911.
[^5]: [2012] ONCA 117 at para. 69, https://www.canlii.org/en/on/onca/doc/2012/2012onca117/2012onca117.html
[^6]: See: R. v. Marquard (1993), 85 C.C.C. (3d) 193 (S.C.C.) at para. 220, https://www.canlii.org/en/ca/scc/doc/1993/1993canlii37/1993canlii37.html