ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-40000475-0000
COURT FILE NO.: 0274/12
DATE: 20130821
SUBJECT TO A PUBLICATION BAN FOR THE IDENTITY OF THE COMPLAINTS AND THE DEFENDANT MADE PURSUANT TO SECTION 486(3) OF THE CRIMINAL CODE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
A.G.H.
Defendant
Anna Stanford, for the Crown
David Costa, for the Defendant
HEARD: May 27, 28, 30, 31, June 10, 11, 12, 17, 18, 20, 2013
J. Wilson J.
REASONS FOR JUDGMENT
[1] The defendant, A.G.H. is charged with touching for a sexual purpose each of his three female grandchildren when each complainant was under age contrary to s. 151 of the Criminal Code. He is also charged with sexual assault against the eldest complainant. At the time the complainants disclosed the alleged sexual abuse, the complainants were 20 (D.G.), 16 (I.L.) and 13 (Z.F.) years old.
[2] The defendant denies the allegations and asserts that it is not plausible for the defendant, now 70 years of age, to have been abusing the three complainants without it having come to the attention of other family members residing in the home.
[3] The position of the defence in this trial is that:
• The complainants, under the influence of their mother, and perhaps also their father, were pressured into fabricating the allegations of sexual abuse. There was a family plan to remove the defendant from the home to solve various family problems, including to avoid the payment of rent. The evidence of sexual abuse was fabricated to advance this plan.
• The evidence of the complainants is unreliable and not credible as there was the opportunity for the complainants to communicate and some actual communication took place between the complainants before they gave their statements to the police. The evidence of the complainants is contaminated by conscious or unconscious tainting and tailoring of their evidence.
• The evidence of the complainants is unreliable and not credible as there were major inconsistencies in their evidence, their allegations are implausible, there are no dates and details of the allegations. Further, there is no independent corroboration of this unreliable evidence.
• The evidence of the defendant should be accepted. The grandfather testified that he was a loving, generous grandfather who was affectionate, but that he never sexually abused any of his three granddaughters. It is the defence position that the application of the three part test in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, considering the evidence as a whole, should clearly result in an acquittal of the defendant on all charges.
[4] It is the position of the Crown that:
• The suggestion by the defence that there was a master plan by the mother and perhaps the father to remove the grandfather from the house to avoid paying rent and to avoid other tensions and problems in the family is speculative and makes no sense. There is no evidence to support this defence theory.
• The evidence of the complainants is reliable, credible and independent. There was the opportunity for the complainants to communicate and although some actual communication between the complainants did take place prior to giving their statements to the police, each gave evidence that was independent and not tainted or influenced by the information that they may have had about allegations made by their sisters.
• The evidence of the complainants is reliable, credible and consistent throughout on all essential matters. Any inconsistencies raised in painstaking detail in cross-examination are minor. Their allegations make sense, are not exaggerated and are totally believable.
• There is important independent corroboration of aspects of the complainants’ evidence in their aunt’s factual observations of the defendant’s questionable conduct. Their aunt was an independent adult witness living at the home during part of the time the abuse is alleged to have taken place.
• Applying the three part test in W.(D.) and the cardinal principles applicable in all criminal trials, it is clear that the Crown has proved the allegations beyond a reasonable doubt. Convictions should be entered on all counts.
[5] The witnesses at the trial for the Crown’s case included the three complainants, their mother, C.H., the father, B.F., three police officers, two of whom attended at the hospital following the call to 911, as well as the investigating officer, and M.A.H., the aunt of the complainants and sister to C.H. The defendant testified on behalf of the defence.
[6] Several evidentiary issues have arisen during this trial including:
• The Crown application to introduce similar fact evidence as between the complainants.
• The Crown application to admit portions of the videotaped statement of the aunt given to the police for the truth of its contents pursuant to the principles in R. v. K.G.B., 1993 116 (SCC), [1993] 1 S.C.R. 740.
• The Crown application to admit the evidence relating to a prior reporting of sexual abuse by D.G., for the limited purpose to assess the reasonableness of the mother’s concerns about possible sexual abuse in August 2011.
• The Defence application to admit the transcript of the reasons of the Provincial Court judge in a hearing for a breach of recognizance relevant to assessing the reliability and credibility of the evidence of I.L., one of the complainants.
[7] I gave rulings on all of these issues during the course of the trial. I will outline a summary of these applications and my rulings in these reasons to provide context.
(Complete judgment text continues verbatim with all remaining paragraphs exactly as in the source, ending with:)
[360] For these reasons there shall be an acquittal on count 1, and convictions on counts 2, 4 and 6. During the argument, counts 3 and 5 had previously been withdrawn by the Crown.
J. Wilson J.
Released: August 21, 2013
COURT FILE NO.: 12-40000475-0000
COURT FILE NO.: 0274/12
DATE: 20130821
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
A.G.H.
Defendant
REASONS FOR JUDGMENT
J. Wilson J.
Released: August 21, 2013