COURT FILE NO.: 0477/11
DATE: 20121221
W A R N I N G
A non-publication order in this proceeding has been issued pursuant to subsection 486.4 of the Criminal Code.
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and -
R.S.
D. Hogan, for the Crown
D. Maubach, for the Defendant
HEARD: September 24-28, October 1-4, 15, & November 5-6, 2012
Harvison Young J.
REASONS FOR JUDGMENT [*]
I. Overview
[1] R.S. stands charged on a 14 count indictment. His trial proceeded by judge alone before me.
[2] The charges allege that Mr. R.S. sexually abused his three young boys, two of whom, C.D. and D.D., were his stepsons, and the youngest, D.S., who is his biological son. The indictment covers the period from January 1, 2008 until September 15, 2009.
[3] C.D., the oldest, was born on […], 2002, and was thus roughly between five-and-a-half and seven during the period covered by the indictment. D.D., born […], 2003, ranged from about four-and-a-half to six during the same period. D.S., the youngest, was born on […], 2005, and ranged in age from about two-and-a-half to five during this period.
[4] At trial, C.D. was approximately ten-and-a-half, D.D. was almost nine, and D.S. was seven.
[5] The counts reflect groupings of different allegations of sexual abuse. The first general group relate to allegations that Mr. R.S. encouraged the two youngest boys to touch sexually their mother, E.D.. The second group consist of sexual touching charges that Mr. R.S. “sucked and smacked” the boys’ penises. The third group arise from allegations that Mr. R.S. put his “pee pee” in the “bums” of all three boys.
[6] During the period covered by the indictment, the three boys lived with their mother and, for some periods, Mr. R.S., in an upstairs apartment on the Danforth in Toronto. Their mother’s brother, J., also lived there until he moved out on June 1, 2009. In addition, their younger sister, S., also lived with them until she died, apparently quite unexpectedly, of leukemia on May 6, 2009.
[7] The relationship between Mr. R.S. and Ms. E.D. was a turbulent and violent one. Mr. R.S. was in custody and thus not at the apartment between the dates of February 27, 2009 and May 14, 2009, and July 8, 2009 and September 2, 2009. Some details of this violent relationship emerged in the course of the Crown’s cross-examination of Ms. E.D.. While these details were relevant in that context to the credibility and reliability of her evidence, and may also serve to explain some of the feelings of fear expressed by the children at times (especially C.D.) regarding Mr. R.S., this history and character evidence is, of course, entirely irrelevant and inadmissible to prove the truth of any of the allegations of abuse before this court. I therefore do not take this evidence into account in considering whether the allegations before the court are proved.
[8] Although the details were not clear, it seems that one of the terms of Mr. R.S.’s probation prohibited him from being in the residence. While it was clear that this order was in force in the fall of 2009 after the family had left the Danforth apartment, it was not clear when that order came into effect. Ms. E.D. and the three boys moved to an apartment on S[…] Street in a house owned by a family member (referred to by the children as “Nanny B.”) at the end of September 2009.
[9] Shortly thereafter, one of the boys mentioned to a CCAS worker that Mr. R.S. had been around and the children were taken into care by the CCAS.
[10] On November 11, 2009, when the children were taken into care, Ms. E.D. called her mother, J.D. (referred to by the children as “Nan”), at work to ask her to take the children temporarily so that they would not be sent to foster care. J.D. agreed and called G.D. (referred to by the children as “Papa G.D.”), her long term partner, who is on a disability pension and was thus at home more often. He brought them back to their home in Brampton where the boys have lived since. In yet another sad chapter in the difficult lives of these children, J.D. died suddenly in February 2012. The boys continue to live with Mr. G.D. and his son G.D. at present. Crown Wardship proceedings are underway.
[11] Over the months following the boys’ relocation to Brampton, the allegations that form the basis for this indictment began to emerge, although the circumstances of those disclosures are highly contentious and will be discussed below. The incidents involving mainly (though not exclusively) sexual touching of Ms. E.D., instigated by Mr. R.S., seem to have been the first to emerge. As a result of the reporting of these allegations, videotaped police statements were taken from all boys on May 5, 2010 (the “May 5, 2010 statement”). In May 2010, the three boys were seen at the Suspected Child Abuse and Neglect (SCAN) Program at the Hospital for Sick Children (“Sick Kids”) in Toronto. For all three boys, it was found that, “[t]he physical examination was within normal limits.” Given the passage of time and the limitations on the probative value of a negative finding, the Crown and defence agree that these results neither rule out nor confirm the possibility of sexual abuse.
[12] Subsequently, additional allegations emerged, and specifically the allegations that Mr. R.S. and Ms. E.D. “sucked and smacked” the boys’ penises. As a result, a second videotaped statement was taken on December 9, 2010 (the “December 9, 2010 statement”). These statements focus on the “sucking and smacking” allegations.
[13] To this point, the oldest boy, C.D., had denied that anything had happened to him, although he did acknowledge witnessing some of the incidents involving his younger brothers. However, in circumstances that will be detailed below, he did raise allegations in the summer of 2011 that he had been involved in one of the instances of sexual abuse involving his brothers and that Mr. R.S. put his “pee pee” in his “bum” on two occasions. C.D. thus gave a third videotaped statement on July 12, 2011, this time to a psychologist at the SCAN Program at Sick Kids.
[14] On application by the Crown, which was unopposed by the defence, all these statements were admitted as evidence pursuant to s. 715.1 after the boys adopted their contents. Similarly, and pursuant to s. 486.2(1), I permitted the boys to testify from another room via closed circuit television, and I permitted a support person from the court victim support office to be present with them in that room pursuant to s. 486.1. I also made a non-publication order with respect to any information that could identify the children pursuant to s. 486.4. The trial continued over a two week period.
[15] At trial, D.D., D.S. and C.D. testified, as well Mr. G.D. for the Crown. The defence called Ms. E.D.. The children, both when they gave their statements and when they testified at trial, all promised to tell the truth.
II. The Issues
[16] The central issue at the trial related to the reliability of the children’s evidence. Mr. Maubach for the defence submitted forcefully that the children’s evidence is neither credible nor reliable when considered on its own. In addition, he submitted that Mr. G.D.’s evidence gives rise to a reasonable doubt in relation to all the charges because he clearly spoke to the children about these allegations on a number of occasions, thus raising concerns about collusion. The defence argued that Mr. G.D., having decided that sexual abuse had taken place, effectively planted and suggested these allegations to the children such that it is not possible to determine what they actually remember as opposed to what they remember him telling them happened. Mr. Maubach called Ms. E.D., who denied that any of the allegations involving her ever took place, and further denied ever seeing Mr. R.S. sexually abuse the children. Mr. Maubach submitted that her testimony was credible and reliable, and should be accepted by this Court.
III. The Evidence [The following review of the evidence was not read in open court.]
D.D.
[17] D.D. was born on […], 2003. At the time of trial, he was a month away from his ninth birthday.
[18] In the course of his statements, as well as at trial, D.D. had a very difficult time sitting still and remaining focused. He was between four-and-a-half and six during the period covered by the indictment when the family lived on the Danforth. D.D. had just turned six when the children were removed from the care of their mother and went to live with Nan and Papa G.D..
D.D.’s May 5, 2010 Statement
[19] D.D. was about six-and-a-half at the time of his first videotaped statement. In this statement, D.D. explained that they were taken away “because I told about R.S.” by which he was referring not to alleged sexual abuse, but to R.S.’s presence at the home. He also stated that R.S. touched his brother D.S.’s “privates” “two times”. When asked whether it was over or underneath his clothes, he stated that it was under. When asked whether R.S. touched his (D.D.’s) privates, he responded that R.S. had tried to, but he had fought R.S. off. He repeated that denial later in the interview. When he first referred to R.S. having touched D.S., he said they were in the basement (which is not consistent with the apartment on the Danforth).
[20] Later in the interview, he repeated his assertion that R.S. touched his brother D.S.’s privates. He said R.S. “touched the front part”. When he was asked whether it was a “rub or a pull or a pinch or how would you describe it?”, he said “a rub”. When asked how many times he rubbed, D.D. responded “ten”. He was then asked whether he did anything else, to which he responded that R.S. “rubbed his butt”. He was asked whether there was anything else and replied “no”, but then added, “oh yeah, and my brother screaming…he was screaming so loud I couldn’t wake up”.
[21] D.D. stated that his brother was on the couch but then stated that he was almost halfway on the table. He explained that D.S. was halfway on the table because R.S. moved it. D.D. also reported having seen R.S. touching his mother’s private parts in this interview.
[22] There are a few striking features of this statement. First, D.D. appeared to be anxious to portray himself as having successfully (and aggressively) fought off R.S. when he had said that R.S. had attempted to touch him. This self-portrayal was a theme of this statement. For example, at one point he stated that, “I dragged him to the front of a car and said ‘do you want to die R.S.’? He said no, please…”.
[23] Second, D.D.’s descriptions of the alleged acts are not very detailed, and it is unclear where he is claiming that they took place. At one point he stated that they happened in the basement and refers to Nanny B.’s house.
[24] Third, and not surprisingly, given his age at the time of this statement, he was not very focused. He talked, for example, about R.S. saying words like “dick”, “ass” and “bitch”, but it is very hard to discern the context that D.D. was referring to. When asked at one point (about halfway through the interview) whether there was anything else she (DC Campese) needed to know about R.S., he responded, “he broke our lamp”. He was clearly restless, asking questions like “are we done?” throughout the interview.
D.D.’s December 9, 2010 Statement
[25] By the time this statement was taken, D.D. was seven and over a year had passed since the family had left the Danforth. When asked if he had something to say, he very readily stated that “…our stepfather R.S. sucked our pee pees and he smacked them”. I note in passing at this point that he and his brother D.S. used almost identical language, “sucking and smacking”, to describe what they said had happened in this interview.
[26] He repeated, a little further along that, “they sucked our cocks and then they smacked them”, stating that this happened in the bedroom he shared with his brothers. He stated that his mother and his brother D.S. were there.
[27] When asked if this happened just once, D.D. said “lots”, and when asked how often, he said “ten times an hour”, saying that E.D. and R.S. would “come on top of us”. He reported that he would be in bed with his clothes on but that sometimes “they would take them off”. He denied ever touching his mother. At one point he stated that “they said if you tell someone I’ll kill you”. Later in the interview he stated that “they kept doing it” until they moved to “Papa’s house” when he was six. At one point, D.D. remarked that they said, “oh if you do it I’ll give you five thousand dollars”. Later, DC Arbus asked D.D. what sort of things they said to them and D.D. said, “Oh, I’ll give a thousand dollars, I’ll buy you a brand new teddy bear. They don’t.”
[28] D.D. stated that “the exact same thing” was happening to D.S.. He denied that R.S. ever asked him (D.D.) to touch his private parts. In this video statement, he reported having seen R.S. and E.D. engaged in oral sexual activity.
[29] D.D. denied that anything ever happened to C.D., saying that he was “too old”, adding that he was in the living room watching television. I note that all the witnesses, including Mr. G.D., spoke of C.D. frequently being on his own, while the younger two boys seemed to be more constant companions.
[30] D.D. appeared to be more focused, or easier to focus, in this interview than the first. He stated that he was five to six when this was going on, and when asked when it would happen, stated that it was Monday, Wednesday and Friday, that they would go to school on Tuesday and Thursday, and nothing would happen on weekends. He still made very aggressive comments in the course of this second interview, directed more in this statement at his mother, referring to kicking her, etc., but also talked about being “mad” and hating R.S..
D.D. – Direct Examination
[31] D.D. stated that some of the incidents of abuse took place at the residence to which they moved briefly after they left the Danforth, but before they moved to Brampton to live with Nan and Papa G.D.. R.S. would come over to that residence on S[…] Street. He stated that the sexual incidents happened both at Nanny B.’s house and the Danforth. (C.D. was clear in his evidence that none of the incidents ever happened at Nanny B.’s.)
[32] He then said, however, that the “sucking” incidents never happened there. He said he saw C.D. sucking R.S.’s penis but said that was not at the Danforth. This is not something that is mentioned by any of the other children in their statements or in their evidence. He also stated that he saw R.S. “stick his dick up C.D.’ butt”, but also asserted that that happened before they lived on the Danforth (that is, before the time covered by the indictment). He also stated that he saw C.D. “sucking R.S.’s dick” when they did live on the Danforth.
[33] He also stated that he saw R.S. sucking C.D.’s “pee pee”. This is inconsistent with his earlier statements (and D.S.’s as well) that nothing had happened to C.D..
[34] In direct examination, D.D. also acknowledged that his statements with respect to dragging R.S. out and about grabbing a knife from him were not true, explaining that he had been “really mad”.
D.D. - Cross-Examination
[35] D.D. initially clearly denied that Papa G.D. (who always drove them to the interviews and then home afterwards) had told him what to say at the interviews, or asked him what he had said to the police immediately after the interviews. However, he admitted that Papa G.D. did ask, and D.D. did tell, at some later time, and that Papa G.D. said something to the effect of “marvellous job”.
[36] D.D. did acknowledge that Papa G.D. thought that there was something sexual about a number of things, for example, Ms. E.D.’s hand on C.D.’s bicycle seat when she was helping him learn to ride a bike during a visit with the children. He did recall Papa G.D. taping things they said, but added that C.D. did not talk into the recorder. He stated in cross-examination that his mom, D.S. and R.S. were always present during the sexual activity, but that C.D. was not and did not see what was going on.
[37] D.D. agreed that he sometimes got in trouble with Papa G.D. for lying. He also agreed that Papa G.D. used the term “bad people” to refer to R.S. and E.D..
D.S.
D.S.’s May 5, 2010 Statement
[38] D.S. is the youngest child born on […], 2005, and the only one of the three who is Mr. R.S.’s biological son. He was between two-and-a-half and four years old while the family lived on the Danforth and turned four just before they left.
[39] At the time of this first videotaped statement, D.S. was just four-and-a-half years old. When told that “you’re here because we want you to tell the truth”, he stated, “I did that and I did things to my Mom…I touched her in the bad parts”. He then stated, “I don’t want to talk about that”, and “it’s over with”. He was very restless and unfocussed throughout the interview. When asked about R.S. (as one of the people he used to live with), he stated that “he touched my pee pee”, and went on to say “…and my foot…ewe…and mom’s body parts too”, and then immediately announced, “I’m done”. He repeated the comment “I’m done” a number of times during the interview.
[40] At one point, he denied that R.S. touched anyone else’s privates, which was inconsistent with his other statements in the interview. D.S. was vague about where in the house he was when this happened, saying, “by the bedroom” and adding, “I was sleepwalking”. When asked if R.S. touched his bum, he replied that, “He put it in…I think it was in my butt crack…his thing went in my butt crack”, and when asked “in the butt crack or in the hole”, he said, “in my bum hole”. DC Campese asked if it hurt and he said, “Oh yeah”.
[41] He reported that his mom was not in the room. He also stated that he saw R.S. with his clothes off when he was having sex with his mom. Later in the interview, he was questioned about whether he remembered when he had said he did things to mom. When he replied that he did, she asked him what he did to her and he replied, “I touched her on the bad parts”. He then became distracted, but when refocused on the question, stated that he had not touched her bad parts but that he “stuck my pee pee in there though and got red stuff on my pee pee”.
[42] When asked where he learned to do that, he said “R.S.”, but when asked how, he said “he beat on me and tried by being smart”, and went on to describe a time “when I was eating my food he just punched Mom and my mom fell on the plate and all the food was on the ground”, which did not appear to be connected with the sexual incident being discussed. He stated that it happened “a lot” and also that D.D. was doing it too. When asked who else was in the room, he stated that R.S. and D.D. were, that C.D. was not, but that he was watching.
D.S.’s December 9, 2010 Statement
[43] D.S. was just over five when he gave this statement. Like D.D., D.S. very readily told the interviewers that “I have something to say” and, as soon as the preliminaries had been completed and he was asked what it is that he wanted to tell, he said, “…my mom and dad sucked my pee pee and smacked it”. His words were very similar to those used by D.D. in his interview on the same day, as I have outlined above.
[44] When asked why he was telling about that now, he stated, “Because it’s- I have to tell you and I forgot to say it last time”. He stated that this happened in his old house in Toronto when he was four, when they lived in Toronto “16 years ago”.
[45] When asked to tell more, he stated, “I can’t remember that stuff. I can’t”. Although he repeated later that “they” did this, he stated that R.S. did not suck his penis but his mom did, and that R.S. sucked D.D.’s. He stated that there was no door to his bedroom and he could see into what he said was the bedroom where he stated this had happened. He stated that he told Nan and Papa G.D., and it stopped when Papa G.D. stopped it. He also stated that his Nan and Papa G.D. recorded it. When asked how often it happened, he stated, “lots,” and “it never stopped”.
[46] In this statement, he also denied having had to touch anyone’s private parts, which is inconsistent with his earlier statement, and with another part where he said he touched R.S.’s privates with his hand. Overall, it is unclear whether he is asserting that he touched R.S.’s privates. He also stated that his mom said if he did it, she would give him $100, but she never did.
[47] D.S. was still very unfocussed during this interview, saying “I’m done” and also expressing aggression, particularly towards R.S.. At one point, he stated that he “hates him and wants to kill him with a jigsaw”, and also that he had “kicked R.S. in the nuts”. At another point, he commented that he “grabbed R.S.’s pants and his penis came flying off” (which he later acknowledged did not really happen). He also claimed that D.D.’s private parts had touched his mom’s “boobs” and R.S.’s “privates”.
D.S. – Direct Examination
[48] D.S. was seven by the time of trial. In chief, when he was asked about his statement that R.S. had put his “thing” in his butt, he was asked what the “thing” was. D.S. replied, “hand”, adding that “it went down pretty far too”.
D.S. – Cross-Examination
[49] Mr. Maubach began his cross-examination by asking about some of the dates and timelines. This was very confusing and ultimately unhelpful as it became clear that D.S. was not capable of dealing with dates. For example, he thought his sister S. had died in 2011 (after they had left the Danforth) and also that she was already dead when they lived on the Danforth (from 2008-2009). I do not think this confusion is probative at all of the issues that this court must determine on this trial. It is hardly surprising that a child this age is unclear about time periods and dates.
[50] D.S. readily agreed with Mr. Maubach that Papa G.D. talked to him about things “that he said happened”, and that he did not like R.S. or E.D., to which D.S. commented “he said that a thousand times”. D.S. also said he saw his parents having sex, saying that he saw them “humping”.
[51] In the course of cross-examination, D.S. admitted that before Papa G.D. started talking about the sexual things that he thought had happened, he did not remember anything. I do not attach much weight to this because it defies common sense to expect that a seven–year-old can remember what he thought when he was five. D.S. agreed with the suggestion that Papa G.D. was telling them what they should tell the police when he drove them for the May 5, 2010 statement, but he appeared to be distracted at that time, as he was for much of his testimony.
[52] D.S. was stretching and appeared to have trouble maintaining focus, despite the fact that the court took frequent breaks. D.S. was in court on Wednesday, September 26, around 11:30 a.m. when the videos played, which was followed by a short direct examination by the Crown. The cross-examination began at 3:37 p.m. and went to approximately 4:30 p.m., resuming at 10:00 a.m. the following morning. At that point, D.S. appeared to be tired and very suggestible to the leading questions posed in cross-examination, particularly the following morning. He agreed that he could not remember anything that happened when he was three. It seemed that the longer the cross-examination continued, the more D.S. was likely to agree with the suggestions put to him by Mr. Maubach.
C.D.
C.D.’s May 5, 2010 Statement
[53] C.D. had just turned eight at the time of this first interview. In this interview, although he reported witnessing the sexual abuse of his brothers, he denied that he was ever abused. He was much less restless and more focussed during the interview than his brothers on the same day, but was palpably anxious and uncomfortable throughout. He frequently had his head down. At one point, DC Campese asked him if he was afraid and he nodded. When she asked what he was afraid of, he said, “don’t know”, but acknowledged that he was afraid that he was going to get in trouble, adding that he was worried that R.S. could come to the house.
[54] When asked how he had come to be living with his Nan and Papa G.D., he replied that “I told the truth” about “R.S. being at our house”, adding that he “never knew what was going to happen”, and indicating that he felt sad because he still wanted to live with his mother. When the subject of sex was brought up, he first said that he did not want to talk about it, and then added that, “my brothers done it to Mom”, that he saw it, but “I never went near it.” He specified that this was at the Danforth apartment on the couch in the living room. He said his mom was lying down on her back, D.D. and D.S. were sitting near her on the couch, and R.S. was “encouraging” them, saying, “keep doing it. Or I’m going to punch you.” He said his brothers were touching her private parts with their hands under her clothes and that R.S. was wearing his red shorts. C.D. stated that his mom said something but R.S. threatened to knock her out if “you don’t let them do it”. He also said that R.S. told him not to tell or he would be “grounded” for a year. C.D. said he was hiding around the corner and could see all this. He also said it was dark outside when this was happening. When asked by the interviewer, he used his hand to demonstrate the motion that he saw his brothers doing with their hands to their mother.
[55] C.D. also stated that he saw R.S. “playing with D.S.’s dickie”, apparently in the course of the same incident. He stated that R.S. asked D.D. if he could do that to him too, and that D.D. said “no”. He stated that he only saw his brothers touching his mom once and that he was seven when this happened. When asked if it was dark or light out, he was unable to remember, although earlier he had said it was dark outside. He said he had seen R.S. and E.D. “moving up and down” under blankets, “humping”.
C.D.'s December 9, 2010 statement
[56] C.D. was eight years and eight months old at this point. He appeared to be somewhat less anxious during this interview. He was more interested in learning about the car that DC Arbus drove than in talking about the issues at hand. He stated that he saw his mother and R.S. “…smacking [D.D.’s and D.S.’s] wee wees and sucking on them”, and immediately added that “it never happened to me”. When asked, he demonstrated the smacking, which was a side-to-side motion. He stated that this happened, like the incidents related in his earlier statement, in the living room. He said he was told to stay in his room, which he did, but as there was no door to his room, only a curtain, he was able to look through and see into the living room. He stated that he was six or seven and that he saw this a few times. At one point he mentioned February 4 as a date.
[57] C.D. also stated that he remembered one incident in 2008 and another in 2009. On one of these occasions, he had been playing cars on his own in his room and heard strange noises and looked in the living room. He said that R.S. and mom were taking turns and that the boys were wearing shorts, as it was “near” the summer. They were, he said, sitting on the couch with D.S.’s head at one end of the couch, and D.D.’s at the other, explaining that “R.S.’s on D.S. first cause he’s his son, and Mom was on D.D.. And then they go, they take turns.”
[58] When he was asked how long that incident went on for, he said, “nine am to three…so some days we missed school, some days we went”, adding that they would miss school because of this “probably every other day”. With respect to the locations, he said sometimes these incidents took place on the floor and sometimes on the table.
[59] When asked if he liked living where he had moved (Brampton), he stated, “It’s fantastic…there’s no violence…there’s no sexual abusing. There’s no fighting. There’s no yelling. And that’s it.”
[60] Toward the end of this interview, he also related seeing R.S. “helping” D.S. and D.D. “have sex with” their mother, by which he explained he meant that they were kissing and touching her private parts. He also disclosed having seen his mother “suck on [R.S.’s] wee wee”.
[61] In the course of this interview, C.D. also described seeing his mother and R.S. put cream from a tube in D.D.’s and D.S.’s “butts”. He described this cream as “lubricant”. Later, when questioned about this, he described the cream as white. C.D. never described any acts of actual or apparent sexual assault in this context, though he said that he saw them putting the cream on “probably every other day”.
July 12, 2011 Interview by Meredith Kirkland-Burke at Sick Kids
[62] In this interview, C.D. appeared generally quite focused and serious. When he was asked to explain why he had come to talk to Ms. Kirkland-Burke, he responded that it was “to lock up the bad people”, although he had trouble explaining what he meant by that. Ms. Kirkland-Burke told him that she understood that he had recently spoken with his Nan about having accidents, and asked him to tell her everything about the accidents and what he had said to her.
[63] C.D. replied that his grandmother had asked him, “C.D., why do you have stains in your underwear…she said ‘you’re not wiping your butt properly’”, and told him that she was going to take him to the doctor because these accidents happen way too much. C.D. said that he had been hiding the accidents, and Ms. Kirkland-Burke asked him why he thought these accidents were happening. He responded by asking, “Do I have to tell about that?”, and said that he gets really sick and has a huge headache when he talks about this, but then added, after a pause, “I’ve been abused”, and R.S. “put his thing in my butt… and …that’s probably why I have reactions to and they slip out automatically like I can’t feel a thing until it’s too late.”
[64] Ms. Kirkland-Burke provided him with paper and markers to draw what he said had happened. He continued to say, “you know that stuff that makes babies, he didn’t let it go in…and he’s doing it and he…walked away and the stuff dripped and that’s it.” The drawings that C.D. made during this interview were admitted into evidence and marked as exhibits.
[65] When asked what the stuff looked like, C.D. responded, “I got no clue…I was facing the couch”. C.D.’s drawing depicts this dripping clearly.
[66] When asked if this had happened more than once, C.D. started to say once, and then stated, “…I can’t lie, he done it twice”. C.D. stated that he was terrified the first time. He drew two pictures to depict each incident. He wrote some words, one of which is “ouch”, explaining that he wrote that “because it hurt”. C.D. did not say precisely when this had happened although he said he was six or seven at the time, he was in Grade 1, that they were on the Danforth, and that it was “maybe September something”. He didn’t say anything when this was happening. He also stated that the same thing happened to his brothers, “just not as hard as it happened to him”. He stated that he was wearing clothes, and took off only his drawers as R.S. told him he would hit him with the belt if he did not. C.D.’s picture of this incident includes the belt.
[67] The second drawing depicts the second incident described by C.D.. He stated that he was facing the couch, the same way as the first time, and he drew the television, saying that a show called Diego “about a boy” was playing while the assault took place. He said that the same thing happened as the first time, but this time R.S. was wearing a blue t-shirt (as opposed to a grey t-shirt the first time), along with his customary red shorts. He stated again that R.S. did it with his brothers, but that it did not go on for as long, or seem to go on as long with them, as it did with him, saying it was “maybe 5 minutes with them, 10 with me”.
[68] Ms. Kirkland-Burke asked C.D. whether there were times other than these two where he had been sexually abused. C.D. stated that “E.D.’s involved with this too” and talked about E.D. and R.S. “playing” with his (C.D.), D.S. and D.D.’s “dicks”. He depicted this on a third piece of paper. He wrote words that he was too embarrassed to say, such as “mouth”, when asked what parts of E.D. and R.S. had touched their “pee pees”. He wrote “touch” to indicate that they used “their bare hands” to touch their “pee pees”. He wrote “sylent” with respect to R.S.’s second lone sexual assault on C.D., but when asked if anyone said anything during the incident with mom and R.S., he replied that his mother and R.S. “were fighting over turns.” During this incident, C.D. depicted a boy on the coffee table with legs splayed and genitals displayed.
[69] During this interview, C.D. stated that his mother was not there when R.S. put his “pee pee” in his “bum”. On one occasion, he said she told him she was going to the bar. He was consistent throughout the interview in saying that she was not there for those episodes. This is in distinction to the incidents he described of the “sucking and smacking” when his mother was there. He did state that his brothers were around during the incidents where R.S. put his “pee pee” in his “bum”, stating that, “I was watching when they had the turn”. With respect to the second incident, he stated that his brothers were there the second time as well, but again, that his mother was not there.
[70] When asked about his sister S., C.D. first responded that this had all happened before she was born, but then corrected himself and said she was born before these incidents happened, but that they took place before she died.
C.D. - Direct Examination
[71] C.D. was asked in direct examination why he had claimed in the first two interviews that he was not involved in the “sucking and smacking”. He responded that he had been “afraid and embarrassed”, saying that he had been uncomfortable talking with the police and not accustomed to talking about this stuff at all, and that it made him feel sick. By the third interview, he said, “I thought I was there to check out my accidents but it turned into something else…felt I had to explain what was really going on…I told Meredith...my grandmother told me I should say things about myself and I felt more comfortable than with the police”. In the course of direct examination, he explained the pictures he drew. His evidence at trial was quite consistent with what he said during the third interview.
[72] C.D. indicated that he participated in one of the “sucking and smacking” incidents involving his mother, R.S. and his brothers, and that this was the one to which he had earlier referred to his parents “taking turns”. He stated that he observed the other incident of “sucking and smacking”, but that he did not participate in it.
[73] C.D. maintained that he did not talk about the abuse with his brothers while they were still living on the Danforth. He stated that he had heard D.S. say something about it to Papa G.D., and that “Papa was shocked”. He stated that Papa G.D. had asked him something like “is it true they abused you guys”? It is clear from his evidence that the subject was discussed from time to time, and he acknowledged that Papa G.D. had the boys repeat things they had said into his cell phone tape recorder “to give proof to the court that we were telling the truth”.
[74] In direct, C.D. reiterated his earlier evidence that he had never participated in the incidents of touching his mother. He also stated that he had witnessed the “sucking and smacking” one time and participated in it on another occasion. In addition, he stated that R.S. had sexually assaulted him twice with his penis as the drawings depicted, that his brothers were there, that R.S. “did it to them” first, and that on one of the two occasions, they were playing in their room while R.S. was doing it to C.D..
[75] When asked if he recalled anything that his Nan and Papa G.D. told him to say before his interviews, he said “to tell the truth”. This was a constant refrain from all the boys who all stated that their grandparents had told them that.
C.D. – Cross-Examination
[76] C.D. agreed that he had heard his brothers talking to Papa G.D. and Nan about the things they said had happened to them, beginning shortly after they had moved there. He also agreed that the term “the bad people”, which C.D. had used, had originated with Papa G.D. to refer to E.D. and R.S., and that Papa G.D. wanted them to go to jail. He also agreed that he had spoken to R.S. right up to the point at which he had his third interview. He also agreed, somewhat reluctantly, to having told Papa G.D. what he had said during that interview some time after it took place. He denied that he was told specific things to tell about.
[77] Although C.D. said the abuse started in 2008/2009, he agreed that he did not remember exactly when, and he was unable to remember if S. had been born. When he was asked about the timing and frequency of the events and the fact that he had said “every other day”, he said he had not really understood then what that meant, clearly referring to the timing.
[78] C.D. also agreed that the reference in his December 9, 2010 interview to a white substance in a tube that he saw his parents put on D.D.’s and D.S.’s bums could have been diaper ointment and applied for that purpose.
[79] Although at one point, C.D. seemed to agree that his mother was present during one of the alleged incidents in which R.S. put his “pee pee” in his “bum”, he then insisted that she was not, saying that he recalled that she had said she was going to the bar, and that she was not present on the other occasion.
[80] C.D. did admit to observing his parents having sex and to seeing his mother suck on R.S.’s penis on one occasion. He denied seeing “stuff come out of his penis and fall on the floor” as Mr. Maubach suggested, saying that he had not stayed until the end. In re-examination, he said clearly that he did not see anything come out of R.S.’s penis when he had seen E.D. and R.S. engaging in sexual activity.
G.D.
[81] The gist of Mr. G.D.’s evidence is that shortly after the boys came to stay with him and J.D., some signs of sexual abuse began to emerge. First, he stated that he witnessed what he described as very sexual contact between D.S. and Ms. E.D. when she was visiting one day within a couple of days after the boys had arrived. Mr. G.D. said they were on the couch and he was in an adjacent room. He stated that “D.S. got on her and started to fondle her all over and touch her private parts, she started to kiss him back and moan and stuff, I was shocked, I thought maybe it was a dream, took a couple of looks, cleared my throat, went in and said what was going on and she threw him off”.
[82] Mr. G.D. testified that he had alerted the authorities to this right away, and that as a result, visits that were initially ongoing between Ms. E.D. and the children at the home had stopped within about a month after they arrived, and had stopped altogether not long after that.
[83] Around the same time (although his evidence was not very clear on the timing), Mr. G.D. stated that D.S. and D.D. had mentioned “cream” being put in their bums, which he thought was odd but which he had not considered to be sexually related before the incident that he witnessed with Ms. E.D. and D.S.. Disclosures began, and he had discussions with D.D. and D.S.. He stated that C.D., who he described as “shy and nervous”, stayed away from the discussions although he was often around in a general way. He stated that he and J.D. would ask the boys about what they said to make sure they got the same answers, and that sometimes C.D. would encourage his brothers to tell them things. He testified that D.D. and D.S. were afraid to tell him things, and that he would tell them they did not need to be afraid, and that when someone does something, you should tell or they will get away with it and do it again. He stated that “little bits” would come out now and again.
[84] With respect to the “sucking and smacking” allegations, Mr. G.D. stated that C.D. had been the leader who brought the two younger boys in to him to tell him what had happened. He stated that he was “freaked out” and got the children to repeat in unison what they had said into his cell phone, which, he explained, he did “for the date” because his memory for dates is so bad. He was very quick to state that, in retrospect, this had been a stupid thing to do.
[85] Mr. G.D. stated that he had stopped questioning the boys about what had happened to them after they went for their interviews. He stated that the rate at which disclosures were made slowed, but that details would emerge bit by bit. Mr. G.D. testified that he had explained to the boys that he had a philosophy of believing in God and telling the truth. He said that he told the boys to tell the truth.
[86] Mr. G.D. acknowledged having a dated criminal record. This record includes fraud and assault charges from the 1980s, and a DUI conviction in 1994, which is the most recent entry.
[87] In cross-examination, Mr. G.D. admitted that he had not had a good relationship with Ms. E.D. since he kicked her out of the house at 16 for, he testified, breaking the law. He claimed that the last time that Ms. E.D. had come to the house had been about a month after the boys came, but denied that he had banished her, stating that the visiting schedule was up to CCAS.
[88] Mr. G.D. agreed that he had been concerned about D.D. dragging his feet and had thought that this was a symptom of abuse, that is, that he was used to being dragged places. He denied doing “random bum checks” on the boys to check for signs of anal abuse, but said he would check the boys for rashes after the visit to Sick Kids, which, he stated, he would do in the shower. When C.D. was asked if Mr. G.D. had conducted “random bum checks”, he agreed that he had.
E.D.
[89] Ms. E.D. was the only witness called by the defence. She testified that she had never touched any of the boys in a sexual manner, and denied ever having seen Mr. R.S. sexually or physically abuse any of the boys. She did acknowledge leaving him alone with the children at times. She completely denied that the incident of sexual touching that Mr. G.D. claimed to have witnessed between her and D.S. ever happened, and stated that she has never been charged with any offence related to the allegations of sexual abuse of her sons.
[90] Ms. E.D. testified that she had learned of the allegations made by Mr. G.D. in the spring of 2010. At that time, she learned that Mr. G.D. had described her as a “crack whore”, and claimed, among other things, that the children had suffered from poor hygiene and had rotten teeth. She testified that she and Mr. G.D. had not been on good terms since he and his son had “beaten her up and kicked her out” of the house when she was 16, adding that she had never lived there since.
[91] She explained that C.D. was lactose intolerant which led to problems for him “going to the bathroom” and that D.D. had rotten teeth because she had left him with a bottle for too long.
[92] According to Ms. E.D., she saw the boys regularly for some time after they moved to Brampton. Initially, the schedule permitted visits twice weekly when her mother was home, but this was subsequently increased to thrice weekly, and then she was permitted to spend weekends there. In March 2010, she attended a family wedding with her mother and the three boys, and spent the whole week of March break with them. This was after the family proceedings had commenced.
[93] Ms. E.D. testified that Mr. R.S. was in custody when S. died on May 6, 2009 and that he missed her funeral as a result. She acknowledged that physical altercations had taken place in their home over the previous couple of years, generally when Mr. R.S. was drinking. She agreed that at times, she feared for her safety and that of the kids as well as a result of his assaults.
[94] Mr. R.S. was released and returned to the Danforth address on May 14, 2009. Ms. E.D. described the months following S.’s death as a very difficult period for the family, and stated that Mr. R.S. was drinking heavily. She also said that the children were upset and that their behaviour also deteriorated during that period. She stated that he stayed with the family at the Danforth apartment for a couple of months until she told him that she was leaving him, at which point he threatened to kill her.
[95] Ms. E.D. related one incident when she called 911 (June 27, 2009) as Mr. R.S. was chasing her and the children down the street threatening to kill her. She stated that she texted him in early July to ask him to turn himself in and that he had never lived with the family on the Danforth after that.
[96] Ms. E.D. stated that her brother J. had moved out of the Danforth apartment on June 1, 2009, but then also suggested that it might have been April. She stated that he generally worked nights and was home during the day. She also testified that she and Mr. R.S. had had a bedroom, but had given it to D.S. and S. to share. She said she and Mr. R.S. subsequently slept in the living room on the couch.
[97] D.S. had been in diapers before he started school in September 2009. She frequently used Penaten diaper cream to treat his diaper rashes or those of the other children, and always had some on hand.
[98] In cross-examination, Ms. E.D. admitted that her children are the most important aspect of her life and that she wants to have them back living with her more than anything else. She also readily acknowledged that she knows that this would not happen if she had been present, knew, or had any role in the sexual abuse of the boys as alleged.
[99] Ms. E.D. also admitted that she had continued to see Mr. R.S. and to permit him to see the kids even after the assaults in the summer of 2009 and despite the orders that he not be permitted to be in the same place with them. She acknowledged that on occasion, he had assaulted her when she had not acted consistently with his wishes, for example, when she had gone to attend to D.S. who was crying when Mr. R.S. had not wanted her to do so.
[100] She asserted that the children had wanted to see him and had been happy to see him after they left the Danforth, when they were living on S[…] Street. She also admitted that she had visited him in jail and maintained some contact with him since then, though sporadically. She stated that while she had feared for her own safety upon his release, she did not fear that he would harm the children.
[101] In cross-examination, Ms. E.D. admitted that there were reasons independent of Mr. R.S. that had contributed to the apprehension of the children.
IV. Analysis of the evidence
[102] The resolution of this case depends largely on assessments of credibility and reliability. As the defence called Ms. E.D. to testify, I must be guided by the principles set out in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 and, more recently, in R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197.
[103] Ms. E.D. completely denied the allegations that she ever touched any of the children sexually. She also denied ever witnessing Mr. R.S. touch or abuse the children sexually in any way.
[104] The Crown emphasized that Ms. E.D., in light of the ongoing Crown Wardship proceedings, has a very strong motive to deny the allegations as she knows that findings of guilt on these counts would have a devastating effect on her prospects of having any involvement in the lives of her young sons, which she acknowledged meant more to her than anything. He also submitted that her record for disregarding court orders, such as the probation orders restraining Mr. R.S. from coming near her and the children, which she clearly disregarded at least in the fall of 2009, indicates that she is not reliable and is willing to lie or to behave in a self-serving manner. This, he adds, is further illustrated by the fact that despite all that has happened, she has continued to maintain contact with Mr. R.S., visiting him in jail and corresponding with him, at least sporadically.
[105] I conclude that I cannot accept her denial in light of the combination of the powerful motive that she had to deny these allegations along with the fact that her conduct has not been reliable in respecting legal orders made for the protection of herself and her children. My view on this is not changed by the fact that she did, as Mr. Maubach submitted, call the police on occasion, which apparently resulted in the incarceration of Mr. R.S. and the orders that he not be permitted to come near her and the children. She is someone who was, at least at times, living in fear of Mr. R.S., and clearly admitted to doing things he wanted her to do in order to avoid being assaulted. She may well still be afraid of him and of saying anything that would put her at risk when he is released.
[106] In short, I do not believe her denial, and it does not raise a reasonable doubt. Of course, it remains for the Crown to prove the allegations beyond a reasonable doubt on the basis of any evidence I do accept.
[107] The Crown’s case rests on the evidence of these children. There is no other evidence that assists the Crown. For that reason, the assessment of the credibility and reliability of the children’s evidence is central to this case. As O’Connor J. wrote in R. v. L.F., 2006 CanLII 34723 (ON SC), [2006] O.J. No. 4173 (Ont. S.C.), at para. 10:
The assessment of credibility is often the primary and the most daunting task of the trier of fact in a criminal trial. It involves a determination of the truthfulness of witnesses and accused persons as well as an assessment of their reliability, that is, a determination of whether their recollections are accurate, regardless of the sincerity of their beliefs.
[108] There are a number of principles of law that apply to this process with respect to the evidence of children.
[109] First, there is no longer any common law requirement of corroboration in relation to the unsworn evidence of children: see R. v. Bickford (1989), 1989 CanLII 7238 (ON CA), 51 C.C.C. (3d) 181 (Ont. C.A.); and R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at pp. 54-55.
[110] Second, the burden of proof, which requires any charges to be proven beyond a reasonable doubt before a finding of guilt may be made, does not change when the Crown’s case depends on the evidence of children. As McLachlin J. wrote (speaking for the Court) in R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122 at p. 134, having reiterated that point,
Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child.
[111] Third, as McLachlin J. also stated in W.(R.) at p. 133, there is a new appreciation,
… [T]hat it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives 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 Invitation to Sexual Touching Allegations (counts 5 and 10)
[112] As set out above, these allegations are that Mr. R.S. made (or “encouraged” or “helped”) D.D. and D.S. touch their mother’s “private parts” or genital area. There is no allegation or evidence that C.D. was made to or did touch his mother sexually.
[113] With respect to D.S., apart from essentially bald statements such as “I did things to Mom”, or that he “touched her in the bad parts” or that he “stuck my pee pee in there though and got red stuff on my pee pee”, there is little contextual detail with any coherence. Throughout the interviews, he tended to make such a statement and then immediately move to an entirely different subject, saying, “I want a crayon”, or “I’m done”, or even getting up to explore the microphone.
[114] With respect to D.S.’s May 5, 2010 interview, I note that it was very difficult to follow as D.S. was jumping from subject to subject. There was little flow to the questions and answers. Although he gave answers to questions such as “were Mom’s knees flat or bent?”, it is very difficult to attribute any coherence to his answers. The theme throughout the interview was that D.S. wanted it to end so he could pick out a teddy bear as he had been promised.
[115] This was a very young child who stated that he missed his mother and hated R.S., though at one point, he acknowledged feeling both love and hate for R.S.. Given the fact that he was only four-and-a-half at the time of his first interview, and he was relating things said to have happened between six months and 18 months ago, it is very hard to rely upon anything he reported, particularly in light of possible suggestions made by others to him.
[116] The embellishments of D.D. raise issues of credibility and reliability. In the first interview, he did not clearly refer to any of the sexual touching of his mother. D.D. is clearly a child who is full of anger, directed at R.S., as illustrated by his statements that he had dragged R.S. out by the neck and thrown him in front of a car, which he subsequently acknowledged to have been wishful thinking. He was just six when the family moved from S[…] Street, and nine at the time of trial.
[117] Overall, D.D.’s evidence is not reliable. His accounts were too inchoate and riddled with inconsistencies, not just with respect to peripheral details such as place, but in terms of what happened to whom. At times, in cross, he said that he never saw anything happen to C.D., but at other times, he said he saw R.S. put his “dick” in C.D.’s “butt” when they lived at Nanny B.’s. D.D. was very suggestible.
[118] D.D.’s second statement was more specific than his first in relation to the “sucking and smacking”. The fact that the second statement was more specific than the first, and that it took place after the boys had been living with Papa G.D. for some time does give rise to some concern. D.D. and D.S. readily acknowledged that Papa G.D. believed that the boys had been sexually abused by their mother and Mr. R.S..
[119] The allegations that D.D. and D.S. were encouraged or made to sexually touch their mother is intertwined with Mr. G.D.’s conviction that the two younger boys were made to sexually touch their mother, based on what he claims that he saw happen between Ms. E.D. and D.S. shortly after the boys moved to Brampton. This, the age of these boys at the time, and their apparent confusion between what they actually remembered at trial and what they remembered Papa G.D. talking with them about, raises real concerns about the reliability of their evidence.
[120] Mr. G.D. denied using the label “bad people” to describe Ms. E.D. and Mr. R.S. to the boys, or that he said “bad people should be put in jail”. He stated that he simply said that “people who commit crimes should pay for their crimes”. Mr. G.D. was combative and evasive during much of his evidence, often making it difficult to discern his response to straightforward questions. He was generally reluctant to admit to any discussions with the boys about the allegations, stating that “whenever they told me something I would clarify that they had to tell the truth and had to tell the police, told them that they did nothing wrong, etc, hug them, tell them I love them etc…” and that they were safe in his house. He did admit to asking for details such as “was your mom there?”, but stated that this only happened once.
[121] Mr. G.D. denied ever asking what the boys had told the police, stating that they would get “explosive” if you talked about this. He also denied ever saying anything like “good job” or “marvellous job” to the boys after their interviews.
[122] He was very self-serving and his testimony is inconsistent with things that the boys said.
[123] With respect to Mr. G.D.’s evidence that he saw D.S. touching his mother, I do not find that it is reliable in the circumstances. His evidence concerning Ms. E.D.’s visits with the boys after they moved and his actions upon witnessing these incidents do not make sense. He claimed that he alerted the authorities promptly, but was vague about who he called or when. The children did not give their first interview to the police until the following May 2010 and there was no suggestion of any police visits or response to this before that time. In addition, his evidence that Ms. E.D. only visited the children for about a month after they moved to Brampton was inconsistent both with her evidence, which was more specific and credible on this issue as outlined above, and also with the boys’ evidence. In his second interview in December 2010, C.D. referred to having seen his mother as recently as about one week prior.
[124] In addition, it is clear from the evidence that Mr. G.D. became very suspicious of even apparently innocent actions of Ms. E.D. with the boys, such as putting her hand on the bicycle seat when C.D. was learning to ride a bike. While circumstances may have warranted this, it may have influenced these very young boys, particularly D.S. and D.D., having been only four and five respectively when they left the Danforth apartment. In considering their evidence, I find that they had difficulty articulating what had happened to them with any degree of focus or specificity. I am much less concerned, however, by their inability or inconsistencies respecting frequency or timing. At one point, for example, D.S., when asked how long ago the acts had taken place, said “16 years ago”. These are, in my view, peripheral details of the sort that are typically confused by children even when they do have clear and reliable recollections of things that have happened to them and who has done those things.
[125] Having said this, I do not find that Mr. G.D. had such an animus against Mr. R.S. that he entirely fabricated these allegations or that he encouraged the children to do so. I do accept his evidence that, in the months following the move to Brampton, the boys did say things that led him to believe in good faith that there had been sexual abuse. The first interview ensued, presumably as a result of the reporting of these disclosures by Mr. G.D. and J.D., and possibly by social workers who were involved with the children at the time. I also do not find that he told the children what to say to the police except that he did, as all the children said, tell them to tell the truth. I do not accept his evidence that he never asked the boys about what they had said after the interviews, or that he never made comments to them such as “good job” or “marvellous job”. In this respect, I accept the evidence of the boys who did admit that Papa G.D. had asked them what they had said and had made such comments. I also accept their evidence that Papa G.D. did refer to R.S. and E.D. as the “bad people”.
[126] C.D.’s evidence is more coherent on the invitation to touch allegations. He described the alleged incidents of his brothers fondling their mother at R.S.’s instigation more clearly than they do. However, he was not a participant in the touching of his mother and, given his young age at the time, he could more readily have been influenced by what he had heard the others, including Mr. G.D., say had happened over time. In fact, during C.D.’s May 5, 2010 interview, he stated that he knew that R.S. touched D.S. because D.S. had told Papa G.D. about it. He did also say that he knew about the touching of his mom because he had seen it, although he added that “I didn’t go near it”.
[127] In considering the reliability of the children, I do not give any significant weight to the fact that their evidence in relation to the frequency or timing of the incidents lacked reliability. These defects are, in my view, peripheral details which do not go to the core of the allegations.
[128] On the basis of all the evidence relating to the allegations of invitation to sexual touching, I cannot be sure that these incidents took place as alleged. The evidence of D.S. and D.D. is incoherent and lacking in specificity. I was not satisfied at trial that they had actual recollections of these events. While C.D.’s evidence was more specific and detailed, the combination of the fact that these incidents did not directly engage him and that these allegations were intertwined with Mr. G.D.’s conviction that he saw D.S. engaged in inappropriate sexual activity with his mother raise the concern that, over time, C.D.’s memory may have been tainted by these suggestions.
[129] Accordingly, acquittals must be entered on counts 5 and 10.
The Sexual Assault Allegations concerning C.D. (counts 11, 12, and 13)
[130] C.D.’s evidence, however, as related in his third statement to Ms. Kirkland-Burke is, in my view, of a different order. His account of the incidents of abuse which he outlined in that statement are compelling and detailed and have the ring of truth to them.
[131] The first and most obvious issue to be addressed in assessing his evidence is the fact that, in the two previous statements in which he had promised to tell the truth, he had denied that anything had happened to him at all, although he had witnessed the incidents involving the younger two boys.
[132] As the Supreme Court of Canada held in R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at paras. 63, 65, an adverse inference against the credibility of a complainant must not be made simply from a failure to make a timely complaint.
[133] Rather, in considering a delay in disclosure, the court must consider the evidence and circumstances: see R. v. L. (W.K.), 1991 CanLII 54 (SCC), [1991] 1 S.C.R. 1091.
[134] Having seriously considered this issue in light of all the evidence and circumstances, I am satisfied that C.D.’s explanation for his unwillingness to disclose earlier explains both his delay in disclosure and the fact that he had denied it altogether.
[135] First, he explained that he was too “afraid and embarrassed”. This is borne out by the rest of the evidence. During the first interview, when he was quiet and reluctant to speak, DC Campese had asked him if he was afraid and he indicated that he was afraid that R.S. could come to the house. At one point in the second interview, he asked DC Arbus if they had R.S. in jail there, that is, at that police station.
[136] The children’s evidence makes it clear that they had seen R.S. behave violently towards their mother. This was not in dispute, and Ms. E.D. testified to the same effect. This is, of course, irrelevant to the truth of the allegations presently before the court, but, in the circumstances, it is relevant to C.D.’s expressed fear of R.S..
[137] The fact that he found the subjects embarrassing was very evident in the interviews as well, and, as noted above, he wrote down a number of words during the interview with Ms. Kirkland-Burke rather than say them out loud. He indicated that “his whole body feels sick” when he talks or thinks about these matters. During his testimony at trial, he stated that he was most afraid and nervous at the first interview, and that while he was more comfortable at the second, DC Arbus was a new person and he still did not feel comfortable disclosing the fact that he also had been abused.
[138] The circumstances in which he disclosed the incidents further bear this out. He had never decided, upon being questioned, to tell someone. Rather, he disclosed it when his grandmother, concerned about his accidents, asked him about the stains in his underwear. He explained that he assumed that the accidents had something to do with the earlier abuse. There was no evidence that he had been peppered with leading questions on this subject prior to this disclosure in the summer of 2011. Specifically, there is no evidence to suggest that Mr. G.D. suspected that C.D. had in fact been abused despite his denials. All the boys had been taken to the SCAN Program at Sick Kids in May 2010, and given the “bum checks” thereafter.
[139] It may well be that lactose intolerance was the actual explanation for his bowel problems, but the fact that C.D. thought these issues arose because of the assaults by his stepfather is what led him to finally tell his grandmother. The disclosure to Papa G.D. then followed.
[140] The interview with Ms. Kirkland-Burke portrayed an intense and anxious, but very focussed young boy who clearly would rather not talk about these matters. He noted that it made him feel sick, but had decided it was time. His accounts of the two incidents of sexual assault where R.S. put his “pee pee” into his bum are, in my view, compelling and have the ring of truth to them. They contain details that clearly indicate that this child knew exactly what happened to him and where. Having explained that R.S. had “put his pee pee in my butt” in the first incident, he added that,
...you know that stuff that makes babies, he didn’t let it go in…and he’s doing it and the stuff dripped and that’s it.
[141] When asked what the “stuff” looked like, he replied,
I got no clue…no, like I was facing the couch.
As he was talking, he was also drawing. His drawing depicts his “bum”, with drips coming from it. He had depicted a man with a penis standing nearby, and an arrow connecting the penis to the “bum”, which represent R.S. and C.D.’s own rear end. It is clear that what he was describing was the feeling of dripping. This is not a description in the usual lexicon of a nine-year-old, nor is it explained by the fact that he had observed his parents having sex.
[142] He described facing and looking at the back of the couch in the first incident, saying he was terrified. He described the couch in some detail.
[143] There are elements of his description of the second incident which similarly give it a ring of truth. Again, he was specific about what happened to him and where he was. He said that the same thing had happened as the time before, and that a television show called Diego “about a boy and a dog” was playing at the time.
[144] He was clear that his mother was not there on either occasion and that on one of them, she had said she was going out to a bar. He was also clear that his two brothers were around, saying that R.S. had done the same thing to them, though not for as long or as hard.
[145] C.D. was consistent in saying that this had happened in the living room, explaining that the couch had been moved around the room a good deal. I note in passing that the apparent confusion of the children about what took place where in the apartment may well be explained by Ms. E.D.’s evidence that she and Mr. R.S. slept on the sofa in the living room for part of the time they lived on the Danforth. In any event, C.D.’s evidence is clear that all the events involving him took place in the living room.
[146] The fact that C.D. is unable to be precise as to when this took place or whether S. had died by that time is, in my view, peripheral to the essence of this incident. It is not reasonable to hold a child who was six or seven at the time and who is ten now to such a standard.
[147] I accept C.D.’s account of the two incidents of sexual assault where Mr. R.S. put his “pee pee” into his “bum”. I do not find any reason to think that this was planted in his head by Mr. G.D.. I do not think Mr. G.D. had any motive to do so, and there is no indication in the evidence that he had continued to believe that something had happened to C.D. (as opposed to the two younger boys) at this point, some six months after the second interview. In addition, I do not find that C.D. had any reason to fabricate these allegations. There is no basis in the evidence to suggest that he thought that adding these particular allegations would make any difference to the outcome of the child protection proceedings (or to the degree of his safety from R.S.) which were well underway at that point in any event.
[148] In accepting his evidence, I also recognize that D.D. and D.S. both denied that C.D. had been involved in any of the incidents of abuse involving them, and they generally did not relate that anything had happened to him. As I have outlined, however, both boys were very young and I do not find their recollections or lack of recollections to be reliable. As a matter of common sense, young children are less likely to remember details that are peripheral to things that directly affect them, particularly as time goes on. In addition, and as I have noted in the summary of the evidence, C.D. was frequently more off on his own, while the two younger boys were more of a pair. All the witnesses described C.D. and the younger boys in those terms. It makes sense to me that they could have internalized what they may well have believed or been told, and C.D. had not indicated that anything had happened to him.
[149] The denials by the younger boys that C.D. had been abused also serve to undermine any concern that C.D.’s allegations relating to his own abuse were the product of “collusion”. There is no indication that Papa G.D., J.D., D.D. or D.S. were aware of the allegations made by C.D. in the third interview, which they would have been made aware of had Papa G.D. been discussing them with the boys.
[150] According to the agreed statement of facts, Mr. R.S. was in custody for two periods while the family was living on the Danforth. The first was between February 27, 2009 and May 14, 2009, and the second was between July 8, 2009 and September 2, 2009. There is no question that Mr. R.S. had ample opportunity to commit these offences. The opportunity would have increased as of June 1, 2009, which is when J. moved out according to Ms. E.D.. She also mentioned that J. had spent less and less time around the apartment after S. had passed away. Ms. E.D.’s evidence was that he had generally worked nights, often 8 to 12 hour shifts, and that when he was home, he spent a lot of time in his room with his door closed.
[151] In conclusion, counts 11, 12 and 13 are proved beyond a reasonable doubt and convictions shall be entered on these counts.
The “Sucking and Smacking” Allegations (counts 1, 3, 4, 6, 8, 9, 13 and 14)
[152] After careful consideration of all the evidence, and of the need for caution when accepting the evidence of such a young child, I also accept C.D.’s account of the two incidents of “sucking and smacking” that he recounted in the third interview, one of which he testified that he had been a participant in.
[153] C.D. gave a detailed account of these two incidents. His drawing clearly sets out who was where. The two incidents are described in similar terms, except that one of them involved him and one did not. He clearly described that the instructions from R.S. and his mother were to lie on the table with legs splayed, something he depicted very clearly in his drawing. While I would not put great weight on demeanour, he did not hesitate as he was drawing. He stated clearly that he witnessed this happening to his brothers (without him) on one occasion, which was consistent with his second statement, and that he was a participant in a second, which he disclosed for the first time in his third interview.
[154] Again, there are certain details which give his evidence the ring of truth. He stated in the second interview that R.S. and his mother were “taking turns”. In the interview with Ms. Kirkland-Burke, he added that they were fighting over whose turn it was, saying things like, “no, its my turn, shut your mouth”. He was not sure what time of day it was when these incidents took place, although he did think that he was in Grade 1 at the time and he recalled the name of his teacher.
[155] In cross-examination, at one point, C.D. agreed with Mr. Maubach that he did not remember anything before he turned 7 on […], 2009, but he also said that “some” of the abuse happened before he turned 7. He was also unclear, as he was in the interview with Ms. Kirkland-Burke, about whether S. was still alive, or indeed born, when these incidents happened. I do not attach significance to this confusion.
[156] First, and as a somewhat general point, the children were all tired by the end of their cross-examinations. All of them frequently asked questions like “how much longer?” and the court took more frequent breaks. They also appeared to be more and more likely to agree to the suggestions put to them by Mr. Maubach the further along the cross-examination went. This was particularly true with D.D. and D.S., but the pattern was somewhat apparent with C.D. as well. This makes it more difficult to rely on such admissions.
[157] Second, it is well recognized that children’s perceptions of times and recollections of dates and chronologies is not that of adults: see W.(R.). It is not reasonable to think that C.D.’s seventh birthday would have marked a “black and white” sort of distinction between his inability to remember events and his ability to remember events. I do not find that his inability to recall details such as the day of the week, the month or whether it was dark out affects my assessment of his reliability on the key issues in the circumstances of this case.
[158] His recollection that the abuse, or some of it, occurred when he was in Grade 1 as he remembered who his teacher was, is a more reliable marker of timing because it reflects a child’s perception of his universe on the basis of the matters that are important to him. Dates, times, or adult constructions or markers of time are less likely to mean much, or to be recalled, by a young child. I note that in the course of his December 9, 2010 interview, C.D. had been asked how long the “sucking and smacking” went on and he had responded “nine to three”, indicating that they would miss school every second day. I do not find that his clear unreliability on timing affects my assessment of his reliability relating to these particular episodes.
[159] In the case of the “sucking and smacking” allegations, I conclude that I accept C.D.’s evidence with respect to the involvement of his brothers despite the fact that it did not directly involve him. I so conclude because of the specificity of his evidence in relation to this incident (as well as the one involving him). Having seriously considered the possibility that C.D. might have been influenced by what he had heard about these allegations before, and taking account of the fact that it did not involve him as directly, I have nevertheless concluded that I am persuaded by his detailed description and depiction of the “sucking and smacking” incident involving his brothers but not him, both in his statement of December 9, 2010 and his statement of July 12, 2011. I emphasize that I am satisfied that, given the level of detail with which he described the events set out above, C.D. had an independent, credible and reliable recollection of those events, which I accept.
[160] In conclusion, I find that the Crown has proved beyond a reasonable doubt that the “sucking and smacking” incidents took place as alleged involving all three boys on one occasion and D.D. and D.S. on another, and that convictions must be entered on counts 1, 3, 4, 6, 8, 9, 13, and 14.
Sexual Assault of D.S. and D.D. (counts 2 and 7)
[161] I turn now to the allegations that Mr. R.S. also touched D.S. and D.D. for a sexual purpose with his penis.
[162] The evidence on these counts was reviewed above from D.S. and D.D., as well as the evidence of C.D., who testified that he witnessed these incidents where he saw R.S. “do it” to the boys on the occasions that R.S. had “put his penis in his butt”, but that he did not do it to them for as long or as hard.
[163] I do not reach the same conclusion with respect to C.D.’s evidence that Mr. R.S. had sexually assaulted D.S. and D.D. with his penis on the occasions that R.S. had done so to C.D., as I have with respect to C.D.’s evidence in relation to the “sucking and smacking” incidents discussed above. C.D.’s descriptions of these assaults on his brothers are lacking in the sort of detail which I have outlined above with respect to the sexual assaults on him (and the “sucking and smacking” incident involving his brothers). C.D. simply said that it happened to the two boys, but not as hard and not as long. The earlier assertions of the boys about R.S. having put his “pee pee” in their “butts”, as well as the possible discussions with each other and Papa G.D. about it, may have influenced C.D.’s recollection as far as his brothers are concerned. As I have discussed earlier, the younger boys’ evidence on these issues is not reliable and I do not give it any weight, even as confirming or corroborating C.D.’s evidence on this issue.
[164] As a matter of common sense, young children are most able to recall significant or traumatic events that happen to them. Given C.D.’s age, and the caution which must be employed in relying on the evidence of such young children, as well as the fact that these allegations concerning the younger boys had emerged over a year before he gave his interview, combined with the relatively lesser level of detail in C.D.’s description of these incidents, I am left with some doubt in my mind as to whether these allegations have been proved beyond a reasonable doubt.
[165] In the result, I am left feeling that these assaults on the younger boys probably happened, but I cannot be sure. I therefore conclude that those allegations of sexual assault have not been established beyond a reasonable doubt and acquittals must be entered on counts 2 and 7.
V. Conclusion
[166] For the foregoing reasons, Mr. R.S. is convicted on counts 1, 3, 4, 6, 8, 9, 11, 12, 13 and 14.
Harvison Young J.
DATE OF RELEASE: December 21, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and -
R.S.
REASONS FOR JUDGMENT
Harvison Young J.
DATE OF RELEASE: December 21, 2012
[*] This was given orally on December 19, 2012. The review of evidence contained in Part III, pp. 4-16 was not read out but was given to counsel along with this full text. Of course, the transcript forms the official record of the portions delivered orally.