SUPERIOR COURT OF JUSTICE

COURT FILE NO. 11-03860

HER MAJESTY THE QUEEN

• v –

D.M.

R E A S O N S F O R J U D G M E N T

BEFORE THE HONOURABLE JUSTICE C. BOSWELL

on NOVEMBER 16, 2012

at NEWMARKET, Ontario

INFORMATION CONTAINED HEREIN IS

PROHIBITED FROM PUBLICATION UNDER S. 486.4 PURUSANT TO

THE ORDER OF JUSTICE C. BOSWELL, SUPERIOR

COURT OF JUSTICE, DATED OCTOBER 15, 2012

APPEARANCES

C. GOODIER Counsel for the Crown

P. ALEXANDER Counsel for the D.M.

R E A S O N S F O R J U D G M E N T

BOSWELL J. (Orally):

[1] Twenty-six years ago is a long time. Maybe

not in the grand scheme of the universe, but in

the course of a human life, twenty-six years is a

pretty long stretch. It is a particularly long span when witnesses are called upon to recall the details of events that occurred long ago and when courts are asked to gauge the reliability of such challenged recollections. This is a case involving historical allegations of sexual offences, events alleged to have taken place between 1985 and 1987. The accused elected not to testify. And so, at its heart, this case centres on the credibility and, more to the point, reliability of the evidence of the Crown’s witnesses about the events of a quarter century ago.

[2] The accused faces a six count indictment. Each count reflects an alleged sexual offence against a single complainant, S.V. For a period of about 12-18 months spanning 1985 to 1986, the accused resided with S.V., her three siblings and her mother in Warminster, Ontario. The accused has been charged with two counts of sexually assaulting S.V., two counts of having sexual intercourse with S.V. when she was under the age of 14, and two counts of committing an act of gross indecency with S.V. Half of the counts relate to offences to have been committed between the beginning of 1985 and the end of 1986. The other half relate to offences alleged to have been committed in 1987.

[3] Give the distant events upon which the trial focused, the outcome of the case clearly turns on the careful scrutiny of the Crown’s evidence. Before beginning to scrutinize the evidence, however, a brief reminder about some of the fundamental principles of Canadian criminal law is warranted, given the significance that they play in this proceeding.

FUNDAMENTAL PRINCIPLES

[4] First and foremost, it must be remembered at all times that the accused comes before the court with the presumption of innocence, in other words, he has a clean slate. The presumption is only discharged when, and if, the Crown proves his guilt beyond a reasonable doubt.

[5] Second, the Crown at all times bears the onus of proving the case. The accused does not have to prove anything.

[6] Third, the Crown is required to prove the essential elements of each offence to the reasonable doubt standard. The court must assess the case on the whole and decide whether, on the basis of all of the evidence, or lack thereof, the Crown has proven the guilt of the accused beyond a reasonable doubt. These principles are expressed, amongst other places, in R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320.

[7] These sacrosanct principles must be strictly applied.

THE ALLEGATIONS AGAINST THE ACCUSED

[8] S.V. is 38 years old, having been born in 1974. When she was about 10 years old her mother, W.W., began to date the accused. He moved into their home on P[…] Street in Warminster shortly thereafter. At the time, S.V. lived with her mother and three siblings, two brothers and a sister. She was the oldest of the four children. The complainant said she didn’t have much of a relationship with the accused, although she described him generally as a nice man, always kind and friendly. Having said that, there were times when he was not as nice. S.V. described an ongoing pattern of sexual abuse inflicted upon her by the accused. Though her evidence focused primarily on certain distinct incidents, she did say that inappropriate sexual touching by the accused occurred about twice a week on average, though it was not made clear over what period of time that frequency of abuse continued.

[9] The evidence relating to the offences before the court came largely from S.V. I will review her evidence briefly, mirroring the manner in which it was presented in-chief, more or less on an incident-by-incident basis.

COUCH INCIDENT

[10] The first incident of sexual touching that S.V. remembered occurred, she said, in the living room of the P[…] Street residence. She was confident that the couch incident was the first time she was abused by the accused, saying, “You never forget the first time.” Under cross-examination, however, she conceded that when she was interviewed by the police in February 2010, she could not recall when she was first abused by the accused.

[11] The complainant was unable to orient this first alleged incident in time with any precision. She said she was about 10 years old when the accused moved into their home, which would be circa 1984. The accused moved out of the home in about February 1986, so there is a timeframe of about a year to a year and a half in which this and most of the other assaults are said to have occurred.

[12] The complainant recalled that the entire family was in the living room watching television. There was a sectional couch in a corner of the room, with the sections reaching out along two perpendicular walls. The accused was laying on one couch and the complainant’s mother along another, such that their heads were both in the corner of the couch and their bodies stretched out perpendicular to one another. The complainant was lying on the couch directly in front of the accused in a “spooning position”, there was a blanket covering them. The accused had an arm draped over the complainant. Suddenly and without warning, he reached down and began to rub her vagina over her clothing. He did this for a few minutes, and then stopped. She was alarmed and nervous, but she did not react in any way and did not tell anyone about it.

THE VEHICLE INCIDENT

[13] S.V. described an incident where she was in a vehicle with the accused and he drove her to secluded spot nearby railway tracks on the outskirts of Orillia. She was lying on the front seat of the vehicle and her pants were off. The accused performed oral sex on her.

[14] Under cross-examination, the complainant agreed that she had told Detective Taylor in a statement given to the police in February 2010, which I’ll refer to as her “police statement”, that the accused had had intercourse with her in a truck by the railway tracks. Indeed, during cross-examination, she stood by that statement, even though she admitted that she did not mention any incidents of intercourse during her examination in-chief.

[15] In fact, during cross-examination, the complainant said that there three occasions on which intercourse occurred, though she didn’t mention any of them during her examination in-chief. One was in a vehicle at the railway tracks. She wasn’t sure if it was a car or a truck. Another was in her mother’s bedroom on P[…] Street. The last was in the bedroom in the basement of a home on M[…]2 Street in Orillia.

[16] In her police statement, the complainant said that the incident in the vehicle included touching and intercourse, but she did not mention oral sex. At the preliminary inquiry, she said oral sex happened, but she did not mention intercourse. At trial, she said in examination in-chief that there was oral sex. Intercourse was added as a feature during cross-examination.

THE BEDTIME INCIDENTS

[17] S.V. described a pattern of incidents she said occurred at bedtimes at the P[…] Street home. She said the accused would come to her room at bedtime to say goodnight. She shared a room with her younger sister and, in fact, they shared a king-sized waterbed. S.V. said the accused would lay on the waterbed between S.V. and her sister. He would be on top of the blankets. He would reach under the blankets from the bottom of the bed and touch her vagina. These incidents happened on an unspecified number of occasions and each lasted only a few minutes.

MOTHER’S BEDROOM INCIDENT

[18] On one occasion in the P[…] Street home, the accused and S.V. were, according to her evidence, together in the bedroom the accused shared with S.V.’s mother. Both the accused and S.V. were naked. He took his penis and rubbed it on her vagina. He took her hand and placed it on his penis and helped her move it up and down. He performed oral sex on her. He kissed her.

[19] Though nothing was said during her examination in-chief about intercourse, during cross-examination she said, as I mentioned, that she and the accused had intercourse during this occasion in her mother’s room.

[20] She could not remember how this incident began or what she was doing prior to it. She recalled that the accused asked her to come into the bedroom he shared with her mother. She did not know how the intercourse began. She recalled that it occurred in the missionary position. She did not remember any of these details in her evidence at the preliminary hearing.

[21] At no point during her police statement or her evidence at the preliminary hearing, did she mention the accused putting his hand on hers to assist her in stroking his penis; that was a detail that first came out at trial.

THE KITCHEN INCIDENT

[22] S.V. had only a vague recollection of an incident occurring in the kitchen of the P[…] Street home. She recalled that she and the accused were in the kitchen and her mother came in and was very upset. Her mother “freaked out” and asked the accused what he was doing. Her mother told her to leave the kitchen. She did so and her mother and the accused continued to argue.

[23] The complainant’s mother, W.W., testified about the kitchen incident as well. She said she got up one morning at the P[…] Street residence in late 1985 and went into the kitchen. She said she observed the accused in his underwear with his penis in his hand. S.V. was in the kitchen as well and had her hand extended out as though she was going to touch the accused’s penis. She “freaked out”. She sent S.V. into the living room and she asked the accused, “What the fuck are you doing?”

[24] W.W. conceded, during cross-examination, that when she spoke to the police in February 2010 she did not recall the accused being in his underwear. She only recalled that fact after the officer conducting her interview told her she’d said as much in an interview with the police in 1986. Having been so reminded, she said that now she has a vivid recollection of the accused standing in his underwear with his penis in his hand. In cross-examination, however, she said the accused was standing in the kitchen wearing track pants and with his penis in his hand.

THE MARY STREET INCIDENT

[25] In February 1986, sometime after the kitchen incident occurred, the accused was charged with one count of sexually assaulting S.V. S.V. and her siblings were removed from their mother’s home by their grandmother, who took them to live with their father, P.G.

[26] A short time later, S.V.’s mother reconciled with the accused and the children ultimately never went back to live with her. W.W. and the accused continued to have a volatile relationship which appears to have been defined by a number of break ups and reconciliations. They moved around Orillia on several occasions, at one point living in a home on M[…]2 Street. P.G. and the children were, at that time, living in a home on M[…]1 Street in Orillia, only about five blocks from the M[…]2 Street residence.

[27] S.V. said that when she was about 13 years old she dropped by the M[…]2 Street home. She and her siblings could easily walk there and one or another of them regularly dropped by to visit their mother. Generally, S.V. would only visit the M[…]2 Street home when her mother was there. On this occasion her mother was not there, but the accused was. She said he proceeded to sexually assault her. According to her testimony, he led her downstairs to where the bedroom was that he shared with S.V.’s mother. They both undressed. The accused touched her, performed oral sex on her and rubbed his penis on her vagina. Again, as I described, during cross-examination, S.V. indicated that the accused had not only rubbed his penis on her vagina, but he had actually penetrated her and engaged in intercourse with her.

THE FINAL INCIDENT

[28] S.V. testified that the last time she saw the accused, she was living with her grandmother in Oshawa, she was about 15 years old. She and her grandmother came to Orillia to visit S.V.’s mother. Her mother was still with the accused at the time. Her mother and grandmother left the home to go somewhere together, leaving S.V. alone in the company of the accused. She said he mentioned something to her about wanting to be with her in a sexual way. She stood up to him on this occasion and told him to “stay the fuck away”.

POLICE AND C.A.S. INVOLVEMENT

[29] The immediate impact of the kitchen incident was that W.W. insisted that the accused leave the family home. He did. He stayed away, according to her evidence, for a couple of days and then returned to live there again, but things were rocky in their relationship, they fought all the time. By Valentine’s Day, 1986, the accused had moved out again. W.W. was unhappy that the accused had left. She loved him and did not want him to go. In her own words, she “harassed him” to come back. Her harassment led him to call W.W.’s mother. Somehow the call to W.W.’s mother triggered the involvement of the police. W.W.’s mother removed the children from her home and placed them with P.G. On February 16, 1986, P.C. contacted the O.P.P. and arranged to meet with Detective Leon Jenkins.

[30] Detective Jenkins arranged for an interview of S.V. to be conducted by a social worker at the Children’ Aid Society, pursuant to the prevailing protocol at the time. The social worker who conducted the interview was Rick McDonald. Detective Jenkins attended the interview and his notes reflect the fact that S.V. was very timid and quite during the interview and would only answer yes or no to a series of leading questions. His notes do not reflect the questions asked and he had no recollection of them.

[31] The accused was initially charged with one count of sexual assault. Over the ensuing months, S.V. continued to meet with a social worker at the C.A.S., Claude Charpentier, who encouraged S.V. to talk about her experiences, but to no avail. In the absence of a statement from S.V., the Crown elected on May 26, 1986, to withdraw the charge against the accused. S.V. continued for about a year to meet regularly with Claude Charpentier and even participated in group therapy sessions. At no time, however, did she provide details of any sexual abuse.

DELAYED DISCLOSURE

[32] At trial, S.V. said that when the first incident of sexual abuse occurred, on the couch in the living room, she was shocked and nervous, she didn’t react at all. Later, despite the fact that she was being regularly molested by the accused, she didn’t say anything to anyone because she was young and scared. She knew her mother loved the accused. Things were already chaotic in their household and she did not want to make them worse.

[33] Later, after the assault she described taking place at the M[…]2 Street residence, she decided to say nothing. Things were just getting back to normal in terms of her relationship with her mother and her ability to see her mother on a regular basis. She knew if she revealed the abuse their lives would be thrown into turmoil again. She did not want that.

[34] Life went on. The accused and W.W. ultimately separated on a permanent basis. Many years passed. During that time, the accused married. His wife, J.M., had a daughter from a previous relationship. The daughter grew up and, in turn, had two children of her own. In 2010, the accused went to trial on charges that alleged he sexually abused his step-daughter and step-grandchildren. During the course of the proceedings involving J.M.’s daughter, the police contacted S.V. and asked if she would be prepared to give them a statement. She did. She said she felt it was time to tell her story. That story resulted in the charges now before the court.

CREDIBILITY AND RELIABILITY

[35] This is a case involving incidents that allegedly occurred a long time ago. Witness recollections were understandably incomplete. Credibility is obviously a central issue, but given the historical nature of the allegations, reliability takes on particular significance. Before proceeding further, it is important to recognize that credibility and reliability are not the same thing. A good description of the difference between the two was provided by Justice Watt in R. v. C.(H.), 2009 ONCA 56, at paragraph 41, where he said:

“Credibility and reliability are different.

Credibility has to do with a witness’s

veracity, reliability with the accuracy

of the witness’s testimony. Accuracy

engages consideration of the witness’s

ability to accurately: i. observe;

ii. recall; and iii. recount events in

issue. Any witness whose evidence on an

issue is not credible cannot give reliable

evidence on the same point. Credibility,

on the other hand, is not a proxy for

reliability, a credible witness may given

unreliable evidence.”

[36] I propose to review credibility and reliability concerns with respect to the principal Crown witnesses, S.V. and her mother, W.W.

EVIDENCE OF S.V.

[37] I generally found S.V. to be a sincere and well-intentioned witness who did her best to truthfully recall and recount events that occurred more than 25 years ago. Although there were numerous inconsistencies in her evidence, which I will detail momentarily, they do not give me concerns about her credibility. A positive feeling about the complainant’s credibility is not, however, in and of itself, enough to support a conviction in this case given the inconsistencies in the evidence: see R. v. Stewart, (1994), 1994 7208 (ON CA), 18 O.R. (3d) 509 (C.A.). In the circumstances, the focus turns primarily to the reliability of the evidence.

[38] Reliability may be affected by a number of factors present in this case, the most obvious being the length of time between the events in question and the testimony of the witnesses. Each witness’s ability to recall the details and specifics of the incidents in question have undoubtedly been impacted by the passage of time.

[39] Difficulties in processing information, storing it and recalling it are often compounded where a witness was a child at the time the events in issue are said to have transpired, as S.V. was.

The law recognizes that children do not have the same ability as adults to recall precise details accurately. As Chief Justice McLachlin said in

R. v. W.(R.), (1992) 1992 56 (SCC), 2 S.C.R. 122 at paragraph 26:

“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.”

[40] The fact that a witness was a child at the time of the events in issue may attenuate some of the inconsistencies in the evidence or provide a satisfactory explanation for the absence of peripheral details.

[41] As Blair J.A. recently noted in R. v. Sanichar, 2012 ONCA 117, however, broader worries arise when there has been a significant passage of time between events and testimony. The court must be alive to “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”, paragraph 42. Sanichar stands as a controlling decision when assessing the reliability of witness’s recollections of historical events. It reminds trial court judges of the many factors that they must be alive to when considering such evidence.

[42] In Sanichar, the accused successfully set aside trial convictions, in 2008, relating to a variety of charges involving physical and sexual abuse of a complainant. The abuse was alleged to have occurred from 1980 through 1984 when the complainant was approximately 8 to 12 or 13 years old. The Court of Appeal held that the trial judge had failed to properly scrutinize the reliability of the complainant’s evidence. Justice Blair cited, with approval, the decision of Minden J. in R. v. McGrath, [2000] O.J. No. 5735 (S.C.J.), where he cautioned that careful scrutiny must be paid to the evidence in cases of historical sexual assaults. Indeed, though Sanichar is the binding appellate court authority, it relies heavily on Justice Minden’s very careful and thorough analysis of historical sexual assault evidence in McGrath. I repeat part of that analysis here:

“A number of factors should be kept in

mind. A witness’ difficulty in

recollection due to the passage of

time must not lead to an ‘undiscriminating

acceptance’ of his or her evidence. A

trier of fact must pay particular attention

to serious inconsistencies in the account,

as well as to significance inconsistencies

between present testimony and prior accounts.

Such inconsistencies may disclose

unreliability: see, for example, R. v. G.G.,

(1997), 1997 1976 (ON CA), 115 C.C.C. (3d) 1 (Ont.C.A.). There

must be a rigorous analysis of whatever

independent, extrinsic evidence still

exists.”

A trier of fact must be aware that an

apparently honest, confident or convincing

witness may not necessarily be an accurate

witness: see R. v. Norman, (1993), 87 C.C.C.

(3d) 253 (Ont. C.A.). Nor does an abundance

of detail in the recounting of an event

necessarily imply an accurate memory. As

well, a trier must bear in mind that the

“subtle and not so subtle influences” that

may have occurred over time to distort

memory.

The influences upon the life of a witness over

the course of many years also make it

difficult to fairly assess an apparent lack of

motive to fabricate. In this context, the

trier must be particularly vigilant to ensure

that the burden of proof is not shifted to

the accused. A tried of fact must be alive

to the fact that the passage of time provides

more opportunities for collusion or

contamination between multiple complainants.

This must be kept in mind when assessing the

probative value of similar act evidence.

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.”

[43] Having regard to the guidance provided by McGrath and Sanichar, it is imperative that the court carefully scrutinize the evidence presented by the Crown and pay particular attention to the following features.

(i) Internal and external inconsistencies

in the testimony of the complainant

and others;

(ii) The “subtle and not so subtle” influences

that may have over time distorted memory;

(iii) The possibility of collusion and/or

contamination of evidence; and

(iv) The possible absence of evidence that

might have been available had the case

been prosecuted in a timely fashion.

[44] Defence counsel attacked both the credibility and reliability of S.V.’s testimony. His attack included the following:

(i) The complainant’s demeanour was, he

asserted, evasive and combative. She

had reasons to fabricate her evidence.

She was disgusted that the accused had

been aquitted in the 2010 trial involving

J.M.’s daughter and grandchildren. She

expressed concern that he might re-offend

if he was not convicted in this trial;

(ii) The timing of S.V.’s complaint is

suspicious and should raise concerns

about her motive to fabricate;

(iii) There were, he said, numerous

inconsistencies in S.V.’s evidence,

both internal and external;

(iv) There are a variety of reasons to be

concerned about collusion,

contamination and distortion of

S.V.’s evidence; and,

(v) The circumstances in which the alleged

sexual abuse occurred render the

existence of such abuse implausible.

[45] I will address the issue of S.V.’s credibility before turning to the subject of reliability. As I have indicated, I found S.V. to be an honest and sincere witness. I do not put much emphasis on her demeanour as she testified. For the most part she was, in my view, reasonably restrained. I did not find her to be evasive or combative. Some of the areas of questioning were provocative. She responded in a manner that was not unexpected, unusual or surprising in the circumstances. Demeanour is, in any event, never a particularly reliable basis on which to assess the credibility of a witness.

[46] S.V. did express disgust at the fact that the accused was acquitted of sexually abusing J.M.’s daughter and grandchildren. That said, I do not find that her expression of disgust impacts in any significant way on her credibility. It does not significantly support an alleged motive to fabricate for reasons which include the following:

(i) She has honest believe and recollection

that the accused sexually assaulted her.

Her view, understandably, and unimpeded

by the evidentiary concerns about

propensity evidence, is that the accused

has a propensity to sexually abuse

children. Accordingly, when other

children in the care of the accused

complained about sexual abuse, she had

an understandable tendency to believe

them. Indeed, she said in cross-

examination that she “knows what happened

to her, so she is pretty sure it happened

to them.” Her expression of disgust was

an honest and forthright expression of her

views.

(ii) Whether she has a heightened interest in

seeing the accused convicted, in light of

the prior acquittal, it must be noted that

she did not approach the police, they

approached her. Indeed, she gave her

statement to the police prior to the

acquittal; and,

(iii) While there are numerous variations

between S.V.’s police statement, her

evidence at the preliminary hearing,

and her trial evidence, I am unable

to say that her evidence became more

elaborate, more damning or more

prejudicial to the accused over time.

In other words, I do not believe that

she tailored her evidence after she

found out about the acquittal, in an

effort to increase the odds of conviction

here.

[47] I furthermore have no credibility concerns associated with the timing of S.V.’s complaint to the police. I fully accept her explanations as to why she did not disclose the abuse earlier, particularly when it was happening and when the accused was first charged in 1986. She knew how much her mother loved the accused and she knew what the consequences would be should the abuse be disclosed, so she said nothing. I accept that when she was contacted by the police in 2010, she was, as she said, ready to tell her story.

[48] As Chief Justice McLachlin observed in R. v. D.(D.), 2000 SCC 43, 2000 S.C.C. 43 at paragraph 65:

“A trial judge should recognize 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 complaint,

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.”

[49] In my view, S.V.’s delayed disclosure does not alone, or in combination with any other features of this case, give rise to an adverse finding against her credibility.

[50] I intend to turn now to a discussion of factors that affect the reliability of S.V.’s evidence. It is in the context of an examination of the reliability of the evidence that I will explore inconsistencies between the evidence given by S.V. at trial and what she has previously said about the incidents in issue. I appreciate that the presence of inconsistencies is a factor to consider in the context of both reliability and credibility. But at the end of the day, and in light of the substantial gap in time between occurrences and trial, I am not persuaded that the inconsistencies, and there are many of them, reflect negatively on S.V.’s credibility. They do significantly impact upon the reliability of her evidence, however, and so that is where the focus of my analysis is directed.

INCONSISTENCIES

[51] S.V. gave a detailed, videotaped statement to the police at her home on February 10, 2010. She also gave sworn testimony at the preliminary hearing which took place in early June 2011. On each of those two prior occasions she described sexual abuse inflicted on her by the accused, and she did so again at trial. In historical cases of sexual abuse, like the one now before the court, it is important to pay particular attention to significant inconsistencies between the accounts of the alleged incidents across the different statements of the complainant. Significant inconsistencies between accounts may disclose a lack of reliability and may serve to highlight the distorting effects that time and life’s experiences may have on memory.

[52] Perhaps the most significant inconsistency across the statements of the complainant has to do with the matter of intercourse; whether, when and where it occurred. In examination in-chief at trial, the complainant was taken through the various incidents that gave rise to the charges the accused now faces. At no time in examination in-chief did S.V. say anything about the accused having intercourse with her. This is a pretty significant omission. During cross-examination, although S.V. confirmed that she had given a complete account of the abuse during her evidence in-chief, she went on to say that the accused engaged in intercourse with her on three occasions; once in the house on P[…] Street in Warminster, once in the truck by the train tracks, and once in the house on M[…]2 Street in Orillia.

[53] In fact, S.V.’s accounts of intercourse varied significantly from statement to statement. In her first statement to the police, S.V. said that the accused had assaulted her in a vehicle one time and probably had intercourse with her in it. She said that there was touching and intercourse, but did not mention oral sex.

[54] During the preliminary hearing she described the incident in a vehicle beside the railway tracks as including touching and oral sex, but not intercourse. She said that there were no occasions when the accused engaged in intercourse with her outside of the house. In her examination in-chief at trial, S.V. said that the incident in the vehicle included touching and oral sex. She did not mention intercourse until cross-examination.

[55] During examination in-chief at trial, S.V. said that during the incidents in her mother’s bedroom son P[…] Street and M[…]2 Street, the accused rubbed his penis on her vagina. She did not indicate that there was any penetration. In cross-examination, she testified that the accused penetrated her on both occasions and had intercourse with her.

[56] A second significant inconsistency relates to the couch incident on P[…] Street. At trial, S.V. described the couch incident as being the first occasion on which she was sexually assaulted by the accused. She expressed a good deal of confidence in the fact that the couch incident was the first. She said, “You never forget your first time”, but when first questioned by the police, she apparently had indeed forgotten the first time because she told Detective Taylor that she could not remember what the first occasion was.

[57] Defence counsel suggested that it was implausible that the couch incident occurred. I disagree. Experience shows that the sexual abuse of children can frequently take place in implausible, risky and brazen circumstances. I am not prepared to find that the risky nature of the alleged incidents makes them less likely to have occurred, or inherently implausible. To accept such a suggest would, in my view, be naïve, as it is predicated on the notion that the incidents complained of were planned and thoughtful. Sexual assault of a child is not, by its nature, a caring and thoughtful act. It is, to the contrary, a compulsive and selfish act. Nothing about the couch incident, as described by S.V., makes it inherently unbelievable or unreliable. I do accept, however, that S.V. was evidently unable to remember the incident in February 2010, but had a clear recollection of it at trial.

[58] A third area of inconsistency arose in relation to two aspects of the incident that allegedly occurred in W.W.’s bedroom in the P[…] Street home. At trial, S.V. testified that the accused kissed her during this incident. She described it as “disgusting tongue kisses”. She also said that she touched the accused’s penis. She said he put his hand on top of hers to demonstrate how to stroke it. Neither of these two aspects of the abuse was mentioned in the evidence given by S.V. at the preliminary hearing or during her police statement.

[59] In relation to the bedtime incidents, S.V. gave inconsistent accounts of when they occurred. At trial she said they occurred in her room at bedtime. In her police statement she said these events happened “in the middle of the night”. At the preliminary inquiry she said it was “in the evening when everyone had gone to bed”. When confronted with these inconsistencies, S.V. said there were numerous different incidents that occurred in the bedroom she shared with her sister and that there could have been various times when they occurred.

[60] Staying with the bedtime incidents, S.V. said that during her police statement she used to wear pyjamas to bed. At trial she said she was wearing a nightgown. When confronted with that inconsistency she said that to her a “nightgown” and “pyjamas” were the same thing. But at the preliminary inquiry she was asked specifically whether she was wearing a nightgown or pyjamas and she answered “nightgown”.

[61] Although not an inconsistency, counsel to the accused points to the implausibility of S.V.’s description as to how the bedtime assaults took place. She shared a bedroom with her younger sister. In fact, they also shared a bed. It was a king sized waterbed. The bed was longer than it was wide, so they rotated it 90 degrees and laid across it so they had a little more room. S.V. said the accused came in and laid down on the bed between her and her sister. She said he put his hand up under the blankets starting at the end of the bed, but he did this, purportedly, while he was lying beside her. I can’t say that such a manoeuvre would be physically impossible, but it seems highly unlikely that the accused would be lying in bed beside S.V. and then reach down to the end of the bed and up under the blankets, which he must also have been lying on. A much easier and more plausible manoeuvre would be to reach down under the blankets from the top of them.

[62] There were other inconsistencies in S.V.’s evidence, but they are of a more minor nature and do not warrant any significant analysis. I will move on to discuss issues surrounding the possible distortion of S.V.’s evidence.

DISTORTING INFLUENCES

[63] As Minden J. cautioned in McGrath, trial judges, when dealing with evidence about distant events, must be alive to the “subtle and not so subtle’ influences that may serve to distort memory. Memory is frailer than many people generally realize. It is not at all uncommon for several eyewitnesses to the same event to remember it entirely differently, even with respect to significant features and even though each is an honest and otherwise dependable witness. Frequently, when people forget certain aspects of an event, they fill in the blanks based on their common sense and experience. The natural tendency to gap-fill may explain, at least in part, the differences frequently seen in eye-witness accounts of events. Of course, as time goes on, the gaps in recollection naturally become more predominant. Over long stretches of time, there is an obvious risk that recalling and recounting becomes more of an exercise in reconstruction and less about clear remembering.

[64] There were numerous instances in S.V.’s evidence where she used language like “I guess” or “probably”. She agreed she used that type of language frequently, but passed it off as merely her style of speech. But it seems to me to be more than that. In my view, there are a great many gaps in S.V.’s memory. That is to be expected. She was a child in 1986. Her ability to observe and process information was not as developed as that of an adult. Even an adult witness to the events of a quarter century ago would be hard-pressed to remember them in any detail, and so many of the details of the events in issue have been forgotten. For instance, with respect to the sexual assault in her mother’s bedroom on P[…] Street, S.V. conceded that she does not remember where she was before the incident started, how it started, how she came to be in her mother’s room, how she came to get undressed, how the intercourse started, or what happened when it was finished. With respect to the intercourse in the vehicle at the railway tracks, S.V. conceded she does not remember anything about what kind of vehicle it was, where she and the accused were going, why they were going, what time of day it was, whether it was dark or light, or what time they got home. She doesn’t remember if her mother was at home when they left or got back. She can’t remember what she did when she got home. She doesn’t recall if they drove straight from the house to the spot by the railway track or if they were out of the house driving somewhere for some other purpose. She doesn’t remember how the incident in the vehicle started or what, if anything, was said while the vehicle was stopped. She doesn’t remember how her clothes got off. Indeed, she doesn’t remember the sequence of events at all.

[65] All of this is to say that circumstances are ripe for distortion. And there are certainly features present here that add to the risk of distortion.

[66] When the accused was initially charged in 1986, with one count of sexual assault, S.V. was questioned by a C.A.S. social worker, in the presence of Detective Jenkins. She was extremely reticent. Indeed, she basically gave yes or no answers to a series of leading questions. She was not forthcoming with any details of the abuse she suffered.

[67] She was subsequently counselled by a C.A.S. social worker named Claude Charpentier over a number of months, initially meeting together weekly. Ms. Charpentier would regularly question S.V. about what the accused had done. She said, at the preliminary inquiry, that the questions were detailed as to what type of abuse occurred, though at trial she could not remember if they were detailed questions or not. S.V. was consistent over time in providing no details of the abuse.

[68] Eventually, S.V. began to participate in group therapy sessions at the C.A.S. where children would talk about the types of things that happened to them. She listened to the things the other children said, but did not talk about any of her own experiences.

[69] It is impossible to say, of course, whether the questions and/or suggestions put to her by counsellors in 1986 and the accounts of abuse she listened to in group therapy had any distorting impact on her own memories. Certainly the possibility exists that these events influenced her.

[70] Where there are serious reliability concerns, like here, it is of heightened importance to look for any independent, extrinsic evidence that may give the trier of fact comfort in the reliability of the evidence provided by the central witness. In this case, the Crown offered evidence from three witnesses in addition to S.V. The court heard from former O.P.P. Detective Leon Jenkins, S.V.’s mother, W.W., and S.V.’s step-father, P.G. P.G.’s evidence, in my view, was more favourable to the accused than to the Crown. Mr. Jenkins was able, with the assistance of his notes taken in 1986, to provide little more than basic chronological evidence given (1) S.V.’s reticence in 1986; and (2) the fact that the police have lost statements made in 1986 by the accused, W.W., and quite possibly other witnesses. His evidence does little, if anything, to corroborate the main points of S.V.’s testimony. W.W. was able to provide direct evidence of a somewhat corroborative nature and I turn now to an examination of that evidence.

EVIDENCE OF W.W.

[71] The one evidence of abuse that W.W. was able to provide direct evidence about was what I had described as the “kitchen incident”. Recall that S.V.’s evidence about the kitchen incident was vague. She remembered only a time when her mother came into the kitchen and “freaked out”. W.W.’s testimony must be considered as the central evidence in relation to the criminal act that allegedly occurred in the kitchen at P[…] Street in the fall of 1986.

[72] I set out W.W.’s evidence about this incident earlier and I will not repeat it. I also noted an inconsistency in her evidence as to whether the accused was in his underwear or track pants. I do not consider this to be a particularly significant inconsistency.

[73] W.W. was a remarkably candid witness. She was also a somewhat paradoxical witness: her candour had once supported and undermined her credibility and reliability.

[74] W.W. made no attempt to shy away from the fact that she has a criminal record with a number of entries for crimes of dishonesty. In 1979 she was convicted of theft under $200 and paid a $150 fine. In 1981 she was convicted of theft under $200 and served 20 days in jail. In 1988 she was convicted of theft under $1000 and paid a $200 fine. She explained that she shoplifted in the 1980s to feed her children. In 1989 she was convicted of possession of narcotics. In 1994 she was convicted of theft under $1000 and served 30 days intermittent. She does not appear to have any convictions after 1994. I do not consider her dated record to be a significant factor in the assessment of her credibility.

[75] There are three factors that do cause me concern about the credibility and reliability of W.W.’s evidence:

(i) W.W. testified that she has had brain

surgery and has troubles with her

memory. She said she doesn’t remember

things well;

(ii) W.W. said she was sexually abused as a

child. What upset her most about it, she

said, was that after she revealed the

abuse, noting was done to the abuser.

After she caught the accused in the

kitchen exposing his penis to S.V., she

took S.V. aside and asked her if things

like this had happened before. When S.V.

said that they had happened many times,

she threw the accused out of the house,

but, she said, he moved back in about two

days later. She loved him and thought

she could control the situation. Such

a result is not unheard of, of course,

but it is hard to accept that she would

put her own interests and those of the

accused above the safety and well-being

of her daughter, particularly given her

own history. When counsel put this

feature to her, she simply acknowledged

that she was a “shitty mother”. I note

that in her statement to Detective

Taylor, in 2010, she said that S.V. had

not told her that abuse had happened

many times, a statement inconsistent

with both her trial evidence and her

original statement to Detective Jenkins

in 1986.

(iii) The accused left W.W. on Valentine’s Day

in 1986. She was, admittedly, furious.

She did not want him to go. In her

words, she went out and “terrorized” the

accused, she chased him around town. She

said they had a history of breakups and

reconciliations and on occasions when he

left she “harassed him a little”. That

harassment included chasing the accused

around town, bothering him, upsetting him

because he was with other girls. She

would show up where he was and give him a

hard time. On one occasion she took the

distributor cap off his car. On another

occasion she kicked the windshield out

of his car. She denied counsel’s

suggestion that she fabricated the

allegation about the kitchen incident as

a further form of harassment. She denied

the allegation that she threatened the

accused with an allegation of this type of

criminal wrongdoing should he ever leave

her. When P.G. testified, however, he

said that there was an occasion when W.W.

threatened him with a false allegation

of criminal wrongdoing if he ever left

her. She threatened to have him thrown

in jail.

[76] In light of the three features I have just

reviewed, I have serious concerns about the reliability of W.W.’s evidence. Those reliability concerns raise a reasonable doubt about whether the kitchen incident occurred as described by W.W.

[77] I would be remiss if I did not mention one other aspect of W.W.’s evidence. She described an incident in 1994 when she met the accused and they sat in a car in her driveway. She said he cried and apologized to her for things he had done to her and to S.V. The suggested inference, of course, is that the apology was an admission of guilt. There are two problems with this evidence. First, it suffers from the same reliability concerns as all of W.W.’s evidence does generally. Second, the suggested inference, even if the evidence were accepted, is weak. W.W. said that she never asked the accused exactly what he was apologizing for. There is no way to know what his statement of mind was at the time and the purported utterance of the accused is simply not reasonably capable of supporting an admission of the criminal acts set out in the Indictment.

CONCLUSION

[78] Ultimately, this case does not turn on whether or not I believed S.V. As I said, I found her to be a sincere and earnest witness. Having listened to her evidence and having carefully considered it, I certainly have a very strong suspicion that she was sexually abused by the accused. A strong suspicion, however, does not rise to the burden on the Crown to prove the charges beyond a reasonable doubt. The concerns I have about the reliability of the evidence of S.V. and W.W. raise a reasonable doubt about the acts that form the basis of the charges before the court. The numerous inconsistencies in S.V.’s testimony, significant gaps in recollection, and the presence of circumstances that create a real possibility of memory distortion combine to create real concerns about the reliability of S.V.’s evidence.

[79] In the result, there will be an acquittal registered on all charges.

[80] I appreciate that S.V. and her mother will be disappointed with the outcome of this case. I further appreciate that their view will be that the accused “got away with it again”. It is important for them to appreciate two significant factors. First, I have made it clear that I have found S.V. to be a credible witness. I did not disbelieve her. Second, it is important to recall that the accused starts the case with a clean slate because he has a presumption of innocence. That presumption is only displaced if and when Crown counsel proves his guilt of the offences charged beyond a reasonable doubt. In other words, at the end of the case the court must be sure that the accused committed the acts complained of. It is not enough to have a general, even strong, suspicion that abuse occurred. It is necessary to be able to say, beyond a reasonable doubt, that the accused committed specific acts that are criminalized by the Criminal Code of Canada. The evidence adduced in this case, frail as it was due to the passage of time, was simply not sufficient to establish the accused’s guilt beyond a reasonable doubt.

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Pamela A. J. Thompson, certify that this document is a true and accurate transcript of the recording of R v DM in the Superior Court of Justice held at 50 Eagle Street West, Newmarket, Ontario taken from Recording of November 16, 2012, CD #4911-105-20121116-092827.

(Date) Pamela A.J. Thompson, C.V.C.R.

Certified Court Reporter

NOTE: Photostat copies of this transcript are not certified and have not been paid for unless they bear an original signature in blue and accordingly are in direct violation of Ontario Regulation 587/91,Courts of Justice Act, January 1, 1990.