WARNING
The Court directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(P) 1668/12
DATE: 20130110
B E T W E E N:
HER MAJESTY THE QUEEN
E. Norman, for the Crown
- and -
A.T.
D. Powell, for the Defence
HEARD: January 7, 8 and 9, 2013
REASONS FOR JUDGMENT
Mossip J.
[1] Mr. A.T. is charged with sexual assault and sexual interference of his daughter, K.S. The specific allegation is that during a 168 day period, ending on approximately May 16, 2011, Mr. A.T. stuck his finger in K.S.’s bum. The Crown alleges this occurred on several occasions.
Evidence at Trial
[2] The Crown’s case consisted of the testimony of K.S.. She watched two videotaped statements she gave to the police on May 16 and May 17, 2011. After watching those statements she adopted their contents, specifically with respect to the allegations forming the basis of the charges against Mr. A.T.. She was cross-examined by defence counsel with respect to the contents of the statements. The admission of the videotaped statements, once adopted by K.S., was on consent pursuant to s. 715.1 of the Criminal Code.
[3] The Crown also called Mrs. G.A., K.S.’s kindergarten teacher who received the initial disclosure of sexual abuse from K.S.. Ms. Burke, an employee with the Children’s Aid Society of Peel also testified. She has worked with Tara’s family since September, 2010.
[4] The defence elected to call no evidence at this trial.
Summary of the Evidence at Trial
G.A.
[5] Mrs. G.A. was K.S.’s kindergarten teacher from September 10 to June 2011. K.S. was five going on six when she was her student. Mrs. G.A. described certain behaviour difficulties that K.S. had at school and in the classroom. Mrs. G.A. also outlined the efforts that the school made with a team of professionals, to try and help K.S. succeed in the classroom.
[6] She testified that on May 16, 2011, at the end of the school day, K.S. was cleaning the paint containers in the classroom. When she told K.S. to get organized and to get her coat to go home, she testified that K.S. told her that she “hated” going home, that she “hated” her dad, and that “my dad puts fingers in my bum”. She demonstrated with her fingers what her dad did. She held up her index finger and was rocking it back and forth.
[7] Ultimately, as a result of this disclosure, which was repeated to the teacher’s assistant, the vice-principal became involved, and the Children’s Aid Society was called to investigate the allegation of sexual abuse.
[8] Mrs. G.A. agreed that prior to that day K.S. had never said that she did not want to go home to her father.
[9] Mrs. G.A. also agreed that K.S. had been improving in her classroom in the month before the disclosure. She further agreed that three days before this disclosure there was an incident when K.S. came to school with three cigarettes. At first K.S. told her that her father had given her the cigarettes. K.S. then admitted, when pressed, that she had taken the cigarettes, and that she had lied about her father giving them to her. Mrs. G.A. testified in re-examination that there was no other time she recalls that K.S. had lied to her about an incident with her father.
Shollet Burke
[10] Ms. Burke has worked with the Children’s Aid Society of Peel since 2009. She became involved with K.S.’s family in September 2010. She was involved in efforts to reunify the three children, K.S. and her twin sisters, with the biological father, Mr. A.T..
[11] All three children were placed in the temporary custody of Mr. A.T. in December 2010. From that date, the children stayed with the father on a full- time basis. At that time he lived with his own mother who assisted with the children. The biological mother of the children had supervised access with the children at the discretion of the Children’s Aid Society and supervised by the Society.
[12] Ms. Burke outlined issues with the family dynamics including Mr. A.T.’s concerns about the biological mother and her treatment of the children, and concerns about the mother’s boyfriend who lived with her.
[13] It is clear from Ms. Burke’s testimony that all three children came from a difficult situation when they went into Mr. A.T.’s care, and that the children needed a lot of care, love and nurturing. There were many outside services provided to Mr. A.T. to assist him to try to ensure he was not overwhelmed by the three children.
[14] Ms. Burke agreed with defence counsel that the Society had the sense that Mr. A.T. was working hard to be a better father and that his mother was committed to helping her son with the children.
K.S.
[15] K.S. gave two videotaped statements to the Peel Regional Police; one on May 16, 2011 and one on May 17, 2011. DVDs and transcripts of these statements were filed as exhibits at this trial. K.S. attended court and watched most of those videos in a room besides the child-friendly room where the trial was taking place. I watched the first portion of the tape from May 16, 2011 that K.S. did not watch again in Chambers. She was asked questions by the Crown and was cross-examined by defence counsel. K.S. was born […], 2005; she was five years old at the time she gave her statements and is seven years old at the time of trial. She is presently in Grade 2. K.S. promised to tell the truth prior to testifying.
[16] At the beginning of the first video tape Cst. Irving is having difficulty getting K.S. to settle down and answer his questions. K.S. does eventually sit down, and tell the police officer by demonstrating with her finger, that her daddy does “this” to her bum. She also said he “smacked” her bum. She demonstrated again how he put his finger in her bum and twisted it and then smacked her hands together.
[17] She could not say when exactly this happened. She said it happened at night and in the morning when she goes to school. She was not able to tell the police officer the last time it happened. She expressed several times during the interview that she was tired. On the first day with Cst. Irving there was not a great deal of other content with respect to the specific allegation of sexual abuse.
[18] K.S. was re-interviewed by Constables Irving and Whidden on May 17, 2011. Constable Irving started the interview. Constable Whidden took over and K.S. disclosed to Constable Whidden that her father put his finger in her bum. She said he put four fingers in her bum and demonstrated by moving them apart and said that he moved his fingers back and forth inside of her.
[19] She told this officer that her “auntie” (Foster mother) was at her home at the time of the abuse, and that her auntie lived in the same house as her.
[20] She described how her father pulled her pants down when he put his fingers in her bum.
[21] She said that she was having a hard time going “poo poo” and that there was some blood when she went “poo poo”. She said that this happened before her daddy put his finger in her bum.
[22] She said she told her father to stop what he was doing with his fingers, and that and he told her he was going to “keep on going”.
[23] She said that his fingers were in her bum a lot of times and at one point said ten times.
[24] K.S. said he did it to her when she was already in bed and when he was giving her a hug and a kiss. She said that he gave her a kiss by pursing his lips and he kissed her on the lips and on the cheek sometimes; she said she liked it when her dad gave her hugs and kisses. She said she had pyjamas on; the ones with pants and a top, and that he would pull her pants down. She said she had pants on when these events occurred, on at least two occasions in her interviews.
[25] When she was asked by Constable Whidden if her dad had done this before, she said “yes”. When asked how often he had done this she was not able to explain what she meant by a “long time”. She told the officer it always happened in her bedroom.
[26] She told Cst. Whidden she thought it was nasty when her father would come into her room and call her “princess”. She said he said it to her like in a sarcastic way. She said he comes into her room a lot.
[27] She told Constable Whidden that when her dad put his finger in her bum she felt sad.
[28] On cross examination K.S. admitted that there were some times when she had not told the truth. She agreed that her auntie did not live in her dad’s home and that she was mistaken when she said that. She agreed that there were six people in the home and not 16. She also agreed that it was not four, five or ten fingers that her dad put in her bum, but just one. She agreed that her mother’s boyfriend hit her with a whacking stick not her dad; she said she was mixed up when she said that. K.S. also agreed that when she told her teacher that her dad gave her some cigarettes that was a lie. She eventually told her teacher she had lied and that she had taken the cigarettes from her home. She also agreed that when she said the mark on her cheek was because of her dad that was not true, and that the mark was from a skipping rope.
[29] K.S. also told defence counsel that she did not like it when her dad put his fingers in her bum. She also agreed that she said she did not want her parents to go to jail.
[30] She agreed that she slept with her sisters in one bedroom. Her sisters had bunk beds and she had a different bed.
[31] When she was asked by defence counsel if she said these things about what her dad did to her so she could go to live at her auntie’s her answer was “I didn’t even say it on purpose. It was the truth”.
Position of the Parties
Crown
[32] The Crown’s position is that the Crown has proven beyond a reasonable doubt that Mr. A.T. sexually assaulted his daughter K.S. by inserting his finger in her bum. Based on the whole of the evidence, the Crown’s position is that I should be satisfied beyond a reasonable doubt that the sexual assaults occurred as described by K.S..
[33] The position of the Crown is that although it is obvious that K.S. had some hyperactivity issues, that this fact does not affect her reliability and/or credibility as a witness. As the case law affirms, the court must take a common sense approach to the evidence of children.
[34] The Crown’s position is that the manner in which K.S. gave her statements to the police, and how she testified in court, should satisfy me of the reliability and credibility of her evidence as it relates to the allegations against Mr. A.T.. K.S. clearly knows the difference between a lie and the truth. When she was caught in a lie she admitted it. She never resiled from her testimony as to what her father did to her, namely insert his finger in her bum.
[35] The manner in which the disclosure was made to her kindergarten teacher, spontaneously and out of the blue, is also some circumstantial guarantee of the reliability of K.S.’s testimony of what her dad did to her.
[36] On all of the evidence the position of the Crown is that I should be satisfied beyond a reasonable doubt that Mr. A.T. is guilty of the offences set out in the indictment.
Defence
[37] The position of the defence is that K.S. is an unreliable witness and based on an assessment of her testimony, I cannot be satisfied beyond a reasonable doubt that her father committed the sexual assaults alleged by her.
[38] The defence’s position is that there was a pattern of fabrication against her father by K.S., and that the sexual abuse allegations are part of that pattern. The pattern was the incident with the cigarettes that she originally said her father gave her, and the mark on her cheek which she originally said she got because of her father.
[39] The defence further submits that there were “mistakes” in K.S.’s testimony that went to the allegations themselves, such as whether or not the foster mother lived with them in the house at the time of the incidents, and whether or not the mother’s boyfriend or her father hit her bum with a whacking stick. The defence agreed that some of the mistakes made by K.S. should not be as big a concern to me, such as whether there were 16 people in the house or six people, and whether she originally said she had her own room and then agreed that she actually shared her room with her sisters, but had her own bed.
[40] The statement by K.S. as to how many fingers her father put in her bum should cause me concern as she was not consistent in that evidence; sometimes she said four, sometimes ten, and sometimes one. This should cause me concern as the overall reliability of her as a witness.
[41] The defence’s position is that I should also be concerned about the reliability of K.S.’s testimony on the video statements because of the number of times that she said she was tired and that she wanted to leave the room. The police officers, according to the defence, made it clear that K.S. could not leave the room until she had spoken to them about what they wanted to talk to her about. The defence’s position is that this affects the reliability of her statements and the allegations against her father that are contained in those statements.
[42] The defence agreed that there was no proven motive for K.S. to fabricate the allegations, but submitted that an accused does not have to prove there was a motive for K.S. to fabricate the allegations. It is the Crown which must prove beyond a reasonable doubt the guilt of Mr. A.T., and the onus never shifts to Mr. A.T. with respect to proof of his guilt.
[43] The defence’s position is that based on the unreliability of K.S.’s testimony, which is the main evidence against her father, I should have a reasonable doubt as to the guilt of Mr. A.T.. The balance of the Crown evidence cannot satisfy me of the guilt of Mr. A.T. beyond a reasonable doubt.
Applicable Legal Principles
Child Witnesses
[44] There are considerations with respect to the testimony of a child witness that I must consider. That testimony has to be understood in the context of our everyday experience and common sense. The exactitude and detail of an adult’s version of events may be missing from a child’s recall as their world is experienced differently from an adult. In the decision of R. v. B.(G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30, 56 C.C.C. (3d) 200 at para. 48 Madam Justice Wilson wrote for the court:
… it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children.
[45] The consideration of a child’s testimony cannot in any way lessen the standard of proof. In the case of R. v. W.R. 1992 56 (SCC), [1992] 2 S.C.R. 122, 74 C.C.C. (3d) 134 at paras. 25-26, Madam Justice McLachlin, in referring to the principles in B. (G.), wrote for the court:
As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. 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. What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.
… 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.
[46] Three more recent Ontario Court of Appeal cases also add to the above jurisprudence with respect to the issue of child witnesses. I will summarize the relevant paragraphs in these cases which give helpful direction to trial judges on this issue.
[47] In R. v. A.S., 2002 44934 (ON CA), [2002] O.J. No. 1950, the trial judge convicted the accused based primarily on the evidence of the young complainant. There were problems with some of her testimony, and there were discrepancies in her testimony. The Court of Appeal noted that the trial judge addressed and discounted the issues raised by the defence regarding the credibility and reliability of the complainant’s evidence and that based on his acceptance of her testimony on the core issue, he found her testimony to be compelling, reliable and credible.
[48] At para. 38 of this decision the Court of Appeal wrote:
38 The appellant objects that the trial judge effectively accepted the complainant's evidence uncritically based on her demeanour: R. v. Gostick (1999), 1999 3125 (ON CA), 137 C.C.C. (3d) 53 (Ont. C.A.) at 59, and R. v. G.G. (1997), 1997 1976 (ON CA), 115 C.C.C. (3d) 1 at 15. However, the trial judge did not refer only to demeanour, but treated it as confirmatory of his conclusion that the complainant's story reflected appropriate emotions and progression in her feelings. The trial judge was clearly prepared to overlook some of the problems with the complainant's evidence, essentially for the reasons set out in the quotation above, namely, that he accepted her evidence on the actual assaults, and because he accepted that her conduct was consistent with her predicament in the house with her mother being disposed to favour her father over her. In R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122 at pp. 134-6, the Supreme Court of Canada stated that inconsistencies in the evidence of a child or regarding events that occurred in childhood, particularly on peripheral matters such as time and place, should be considered in the context of the age of the witness, and that an appellate court errs in reevaluating the evidence of such a witness without due regard to the fact that the trial judge was alive to the inconsistencies and dealt with them.
[49] In the decision of R. v. P.C.C., 2007 ONCA 236, [2007] O.J. No. 1171, in dealing with a different issue but setting out factors the trial judge considered when he admitted the out of court statement of a young complainant because it offered a sufficient guarantee of trustworthiness, the Court of Appeal, at para. 6, held:
The trial judge made specific findings rejecting the arguments that were made to him concerning the presence of suspicious circumstances relating to the complainant's disclosures and concerning alleged weaknesses in the foster mother's testimony. Further, he relied on four factors as providing a sufficient circumstantial guarantee of trustworthiness to justify the admission of the out-of-court statements: i) five year-olds do not generally have any knowledge of the type of sexual conduct that the complainant attributed to the appellant; ii) similarly, five year-olds do not generally have the capacity to fabricate the explicit descriptions of sexual conduct that were provided by the complainant… [balance of paragraph not relevant to this decision].
[50] Lastly in the case of R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214, Watt, J.A. reminds us of what we should consider in assessing the credibility and reliability of a witness’ testimony. Starting at paragraph 41 Watt, J.A. wrote:
41 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 give unreliable evidence: R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, at 526 (C.A.).
42 This case required the trial judge to assess the credibility of two mature adults, T.F. and the appellant, as well as of a child of ten, K.F. Credibility requires a careful assessment, against a standard of proof that is common to young and old alike. But the standard of the "reasonable adult" is not necessarily apt for assessing the credibility of young children. Flaws, such as contradictions, in the testimony of a child may not toll so heavily against credibility and reliability as equivalent flaws in the testimony of an adult: R. v. B.(G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30 at pp. 54-5; R. v. S.(A.) (2002), 2002 44934 (ON CA), 165 C.C.C. (3d) 426 at p. 437 (Ont. C.A.); R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122 at pp. 134-6.
The Principles Applied
43 As he began his analysis, the trial judge reminded himself of the crucial importance of both credibility and reliability to his decision:
The correct disposition of this case is dependant upon an assessment of credibility. An assessment of credibility involves evaluation not only of the honesty of the particular witness, but also the reliability of the evidence of the witness. One should not rely on the testimony of a dishonest witness in the absence of some independent corroborative evidence; however, even honest witnesses can be mistaken. It sometimes happens that a witness will be quite honest and sincere yet his or her evidence may not be reliable due to external factors such as ability to observe, remember, or relate accurately. In the case at bar, the credibility and therefore both the honesty and the reliability of the evidence of [K.F.], her mother, [T.F.], and the accused are crucial to the outcome of the trial.
46 The trial judge then turned his attention to the counts in which K.F. was the complainant. He considered several factors in reaching the conclusion that the evidence established the appellant's guilt with the required measure of certainty:
i. the manner in which K.F. gave her evidence, including her responses in cross-examination;
ii. K.F.'s intelligence;
iii. K.F.'s knowledge of the distinction between the truth and a lie and her understanding of the necessity of speaking the truth;
iv. the absence of any knowledge of K.F. of the dispute about the handling of the M estate;
v. the lack of any coaching or prompting of K.F. by either parent prior to the video statement and her trial testimony; and
vi. the absence of any improper pre-complaint questioning of K.F. by the recipient of her first complaint, her Nana.
47 A fair reading of the trial judge's reasons in their entirety does not support the appellant's claim that, satisfied that K.F. was credible, the trial judge simply proceeded to a finding of guilt without any consideration of the reliability of K.F.'s testimony and the extent of its persuasive force when held up against the standard of proof required in a criminal case. The trial judge considered several factors that related to K.F.'s ability to accurately observe, recall and recount the events that she claimed occurred.
[51] In this case I must apply all of the principles set out in the above cases in assessing the testimony of K.S.. I must, among other factors used to assess the testimony of witnesses generally, and of young witnesses particularly, address the defence submissions as to the alleged mistakes, lies, and fabrications made by K.S.. I must consider the fact of those shortcomings in her evidence in assessing her overall credibility and reliability as a witness.
Confirmatory Evidence as One Factor to Consider in Assessing the Testimony of a Witness
[52] As set out at paras. 23 and 24 of R. v. W.(R.), the law affecting the evidence of children has undergone two major changes. One, as set out above, deals with a new appreciation that “it may be wrong to apply adult tests for credibility to the evidence of children.” (para. 24).
[53] The other change dealt with “the removal of the notion, found at common law and codified in legislation, that the evidence of children was inherently unreliable and therefore to be treated with special caution”. (para. 23).
[54] This second change referred to does not mean that a trial judge cannot, in considering the whole of the evidence, take into account, along with all of the other factors in assessing the credibility and reliability of a witness, the presence or absence of confirmatory evidence. (para. 27).
[55] I will set out below the confirmatory evidence I considered in assessing the overall credibility of K.S. as a witness.
Motive to Fabricate
[56] In weighing credibility, it is perfectly appropriate for a trial judge to consider the presence or lack of a motive to fabricate.
[57] As the Ontario Court of Appeal wrote in R. v. M.W.M. [1998] O.J. No. 4847 at para. 3.
In weighing credibility, it is appropriate for a trier of fact to consider a witness' motive or lack of motive to fabricate and, although the trial judge dealt with the subject at considerable length, we are not persuaded that he shifted the onus to the appellant to prove such motive nor that he equated credibility with the absence of such motive.
[58] I will deal with the evidence on the absence of a motive for K.S. to fabricate the allegations against her father below.
Application of the Legal Principles to the Evidence in this Trial
[59] I am satisfied beyond a reasonable doubt, for the reasons set out below, that Mr. A.T. is guilty of the offences charged in the indictment. I believe K.S.’s testimony as to what Mr. A.T. did to her. I found that she did provide details of the sexual assaults that were quite compelling. It is to be remembered that K.S. was five and younger when the sexual assaults occurred.
[60] On several occasions K.S. demonstrated with her finger what she said her father did to her. There was a detail of the finger moving back and forth that she demonstrated a couple of times, that in my view could only be demonstrated if it had been experienced. The fact that she said that her father used a different number of fingers when he inserted them in her bum on different occasions, does not detract from the core of her allegations that her father inserted his finger or fingers in her bum. She could not see her father insert his fingers in her bum and therefore could not know exactly how many fingers were involved. She knows that a finger or fingers were inserted in her bum. When she demonstrated how the finger was inserted in her bum, and was moved back and forth, she sometimes put in one finger and sometimes a couple of fingers. This difference in detail does not in any way undermine her core allegation that her father inserted his finger or fingers in her bum.
[61] K.S. also described how her father pulled down her pants, that the sexual assaults happened in her bedroom, that she was alone in her room, and that her father called her “princess” when he wanted her to come to him, when he was in her room. These are significant details she gave as to what happened to her at the time of the sexual assaults.
[62] Other discrepancies in her evidence, such as the number of people that lived in the home, and whether her foster mother lived in the home, and whether she had her own bedroom or not, again are details that do not undermine my confidence or my acceptance of the main allegation of what her father did to her. I accept her core assertion of the sexual abuse in its entirety, and discrepancies of a five year old regarding other details, do not undermine my acceptance of that evidence on the core allegation.
[63] I also do not accept the defence position that there was a “pattern of fabrication” by K.S. against the father. K.S. did admit that she was untruthful about the cigarettes that she said her father gave her. She also admitted that her cheek was scratched because of a skipping rope and not her father as she originally stated. She admitted these lies immediately when confronted with them.
[64] K.S. has been confronted numerous times by the police, in the court system, with the Children’s Aid Society, by educators, and by a nurse. She has never resiled from her statement that her father inserted his fingers in her bum. She has never wavered in that testimony. She has not said he did anything else. She has repeated the basic allegation against her father, and she has never changed that basic allegation, despite numerous questioning about it, and many opportunities to do so.
[65] I agree with the Crown that with regard to these other lies that the pattern, if there is one, is that when confronted with a lie, K.S. agrees it was a lie. With respect to the allegations against her father of sexual abuse, when confronted with the allegations, she has never said they were a lie. In fact when asked by defence counsel whether in fact she said these things about her father so that she could go and live with her foster mother, her testimony was, “I didn’t even say it on purpose. But it was the truth.” I agree with the Crown that the way this was said in Court has all the hallmarks of truthfulness. It was a genuine, spontaneous assertion made by a seven year old dealing with a very difficult situation.
[66] K.S. has already had a more stressful childhood than any child should have at seven years old. She clearly has some attention difficulties as relayed by her teacher, the Children’s Aid Society worker, and by personal observation of the videotape. However, when confronted by a police officer who was quite strict in her demands of her, and when she sat in the child-friendly room at this trial, she was calm, articulate, and quite engaged in the process. She watched and adopted her videotaped statements, although it was clearly uncomfortable for her to watch herself when she was acting out on the tapes. K.S. is an extremely intelligent young girl. She called the police officers, and for that matter the defence lawyer, on their questioning of her on issues that they had already questioned her on. She knew when she had already been asked something and had answered it, and told the police and defence counsel that she had already answered a question. There were numerous other examples in the interviews and at this trial which demonstrated K.S. is a very intelligent young girl.
[67] There is no doubt in my mind that K.S. knew the difference between the truth and a lie. This is clear throughout the video when the police engaged her on that issue. I have no doubt that if she was lying about what her father did to her she would have said so.
[68] There could be many reasons why K.S. gave little detail about what had happened to her. One obvious reason is that she is very young; she ought not to be experiencing what was happening to her, and she said to all persons involved, including the Court, exactly what her father did to her, which was stick his finger or fingers in her bum. As other judges have commented, including the Court of Appeal, this is a sexual activity that a four and five year old ought not to know anything about. The detail in which it is described is another factor in assessing the truthfulness of her allegations.
[69] The testimony of K.S.’s kindergarten teacher is some confirmatory evidence that K.S. is a credible witness. K.S. had never complained previously in school about not wanting to go home to her father. The utterance to her teacher was that she did not want to go home, that she hated her father, and that he stuck his finger in her bum and she demonstrated how this was done. The utterance was spontaneous, out of the blue, and came across as completely genuine.
[70] Obviously, the fact that K.S. told other persons about what she says her father did to her, cannot be used by me to bolster the credibility of K.S. regarding the allegations themselves. Prior consistent statements do not make the main allegations more true. As set above, however, the evidence of another witness in other areas can be used by me in assessing the credibility of K.S. overall and therefore in determining the truthfulness of the main allegations against her father. The kindergarten teachers’ testimony about the cigarettes, and as to the manner in which the sexual abuse was disclosed, can be used by me in that way. It is some confirmatory evidence that K.S. is a credible witness.
[71] Of course Mr. A.T. does not have to in any way prove that K.S. had a motive to fabricate the allegations. The evidence is uncontroverted that K.S. had no motive to fabricate. In fact she told defence counsel that she did want either her mom or dad to go to jail. She also asked me at the end of the trial if her daddy was in the courtroom and if she could see him. The complete absence of motive to fabricate is something that I may consider, as set out in the case law above. The evidence at trial also shows K.S. had no animus toward her father except with respect to the sexual assaults.
[72] The evidence of the Crown, through the Children’s Aid Society worker Ms. Burke, confirms that all three children including K.S. were in Mr. A.T.’s care since December 2010. Further that K.S. was in half-day kindergarten that as her teacher said started in the afternoon, and therefore there was opportunity for Mr. A.T. to sexually abuse K.S. as she describes.
[73] In considering the testimony of K.S., none of the weaknesses in it raised by the defence detract from my acceptance of K.S. as a reliable and credible witness on the core evidence that her father sexually abused her.
Conclusion
[74] In considering all of the evidence of the Crown, and assessing that evidence as set out above, I am satisfied beyond a reasonable doubt of the guilt of Mr. A.T. with respect to the two counts set out in the indictment.
Mossip J.
Released: January 10, 2013
COURT FILE NO.: CRIMJ(P) 1668/12
DATE: 20130110
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
A.T.
REASONS FOR JUDGMENT
Mossip J.
Released: January 10, 2013