ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 1880/12
DATE: 2013-06-20
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
C.D. and G.T.
Applicant
P. Vadecchino for the crown, for the Crown
A. Burton, for the Respondent, C.D.
L. Gross, for the Applicant, G.T.
HEARD: June 14, 2013
THE HONOURABLE MR. JUSTICE P. B. HAMBLY
REASONS FOR JUDGMENT
Introduction
[1] C.D. (C.D.) and G.T. (G.T.) are charged in a single indictment with multiple offences against C.D.’ daughter, S.O.1 (S.O.1). This is an application by the accused to exclude evidence at their trial on the grounds that its prejudicial effect exceeds its probative value.
The Charges
[2] There are 12 counts in the indictment. C.D. and G.T. are charged jointly with sexual assault and sexual interference on S.O.1 in counts 1 and 2 between June 1, 2011 and August 31, 2011 in Toronto, in counts 3 and 4, 11 and 12 between September 1, 2010, and October 31, 2011 in Niagara Falls. In counts 5, 6 and 7 C.D. is charged with sexual interference and sexual assault on S.O.1 between June 1, 2011 and August 31, 2011 in Niagara Falls. C.D. is charged with assault on S.O.1 on October 29, 2011 in count 8 and in count 9 on October 31, 2011 in Niagara Falls. The accused were committed for trial on all of the charges after a preliminary hearing which took place on June 20 and 22, 2012.
The Facts
[3] My summary of the facts is taken from the transcript of the preliminary hearing, statements of witnesses taken from the police that were filed with me and the factums of counsel. From about 2002, C.D. and S.O.2 (S.O.2 a.k.a. Silver) were involved in an intimate relationship. S.O.2 is an exotic dancer. S.O.1 was born from this relationship on […], 2003. She was 7 and 8 when the offences are alleged to have happened. She is now 10. C.D., S.O.2, and S.O.1 have lived in many cities in Canada, including Yellowknife, Ottawa, Montreal, Toronto and Niagara Falls. In about 2006, G.T. began living with them. She is also an exotic dancer. C.D. became sexually involved with G.T.. C.D., S.O.2 and G.T. were involved sexually together. C.D. and S.O.2 became estranged. Since S.O.1 was born, C.D. has stayed home to look after her while S.O.2 and G.T. were working as exotic dancers. They each earn about $2,000 per month.
[4] In October 2011, G.T., C.D. and S.O.1 were living in unit 3 on the second-floor of a house divided into four apartments at P[…] Street, Niagara Falls. S.O.2 was frequently at the apartment. T.S. lived in unit 4, also on the second-floor. She frequently heard loud voices through the walls. For about two months, she had heard C.D. quarrelling with S.O.2 and yelling at S.O.1. On October 29th at about 7:30 a.m., she heard S.O.1 coughing for about one-half hour. She heard C.D. yelling at S.O.1, also for about one-half hour. He said that he was "tired of this shit". At about 1:00 p.m., she heard C.D. saying to S.O.1 that she was not going to lie to him anymore and that he was going to teach her a lesson. She heard him smack S.O.1 about 30 times. She heard S.O.1 crying. The force that he applied was about equal to her sitting and hitting her leg as hard as she could. On October 31st, she heard something which greatly disturbed her and caused her to report what she heard to the police. The subsequent police investigation led to the charges before the court. It is what T.S. said that she heard on October 31st that the defence seeks to have excluded from the evidence at trial. Detective Beaulieu took a videotaped statement from S.O.1 on October 31 which the crown intends to file at the trial pursuant to s. 715.1 of the Criminal Code. C.D. and G.T. were arrested on November 1, 2011. C.D. has been in custody since he was arrested. G.T. was released on bail. S.O.1 was apprehended by the Children’s Aid Society as a child in need of protection. The Society has placed her with S.O.2, with whom she is presently living.
Allegations of the Crown
Joint Charges
1. Toronto Counts of Sexual Interference And Sexual Assault
[5] Between June 1 and August 31, 2011, at a residence in Toronto, C.D. removed S.O.1’s clothing. He rubbed his erect penis across her face, while G.T. performed cunnilingus on her.
2. Niagara Falls Counts of Sexual Interference and Sexual Assault
[6] Between January 1, 2010 and December 31, 2010 at a residence in Niagara Falls, S.O.1 removed her clothing on C.D.’s instructions. He digitally penetrated S.O.1’s vagina and G.T. performed cunnilingus on her. In a separate incident both C.D. and G.T. performed cunnilingus on S.O.1.
C.D. Alone
3. Toronto Charges of Sexual Assault, Invitation to Sexual Touching and Sexual Interference
[7] Between June 1 and August 31, 2011, C.D. and G.T. were at their residence in Toronto with S.O.1. C.D. and G.T. removed their clothing. C.D. instructed S.O.1 to remove her clothing, which she did. On the instructions of C.D., S.O.1 stroked and masturbated his penis. C.D. masturbated himself until he ejaculated. He told S.O.1 that this is how babies are made. G.T. watched this take place.
Niagara Falls Charges of Assault
[8] On October 29, 2011, C.D. put his hand over S.O.1’s mouth and nose to stop her from coughing. He struck her on the back of the head. He grabbed her and threw her on the ground.
[9] On October 31, 2011, at a residence in Niagara Falls, C.D., G.T., S.O.2 and S.O.1 were present. C.D. and S.O.2 were arguing. S.O.1 spoke to S.O.2. C.D. struck S.O.1 on the back of the head, pinched her in the forearm and swore at her.
The Disputed Evidence
[10] On Monday, October 31, 2013 at about 3:30 p.m., T.S. heard C.D., S.O.2 and S.O.1 in their apartment. C.D. and S.O.2 were yelling at each other. In a statement to the police taken on October 31, 2011 she said that she heard the following:
I turned the TV up so that I wouldn't have to hear them fight. I then heard S.O.2 start yelling back at the male and I turned down my TV. I couldn't hear exactly what she was saying because she was talking quietly. At this point he said "there’s three of us here making $2000 a month". He then said "you want me to be a good father and yet your pimping her out to pedophiles, she's going to end up hating us and running away when she’s thirteen.”
[11] At the preliminary hearing on June 20, 2012 she testified as follows:
I don't know if I remember the exact words, but that he is trying his best but don’t you think she's going to run away when she turns 13 because we’re pimping her off to pedophiles. (Transcript, June 20, 2012 p. 31, l. 29 to p. 32, l. 2)
In cross-examination she said that she did not know if he said “you’re” or “we”.
[12] C.D. gave a statement to the police on November 1, 2011. He concedes through counsel that he gave the statement voluntarily and that the police committed no Charter breaches in obtaining the statement. The Crown intends to file the statement as part of its case at trial. The relevant portions of the transcript of the statement are as follows:
Detective Beaulieu: on Monday there was a line when you were talking to Silver you mentioned something about you don't wanna to see her on the streets before she’s 13 and then there was also a line about pimping her out.
C.D.: Yeah
Detective Beaulieu: what did you mean by that
C.D.: I said to … Silver (S.O.2) I said I'm surprised you haven't even been pimped out because she's Silver’s been in the stripping industry for God knows how many years you know…
S.O.2 gave evidence at the preliminary hearing. She stated the following:
Question: okay. Around October 31 when it was reported you were having an argument with C.D., during that particular argument, C.D. said to you, "if you keep pimping her out to pedophiles she’s going to run away when she gets older".
Answer: Like I said in the statement on, with the police officers, I was also mis-heard. He had said that if we can, if we’re not careful and we continue not paying attention to her and, something to that effect, then she’ll runoff and end up being with pimps and prostitutes and stuff like that, when she finds out what I do and what he does.
Analysis
[13] The defence submits that the evidence of T.S. of what she heard C.D. say on October 31st should be excluded from trial. It has no relevance to the charges before the court. Neither C.D. nor G.T. are charged with pimping S.O.1 out to pedophiles. S.O.2 is not charged at all. To admit evidence that he said that either he alone or he and S.O.2 were pimping S.O.1 out to pedophiles is overwhelmingly prejudicial. Any relevance that the evidence may have is greatly outweighed by its prejudicial effect.
[14] The crown submits that the evidence is relevant as narrative to explain how the matter came before the court. It is also relevant as evidence of the sexualized environment in which S.O.1 was living.
[15] The defence relies on the decision of the Court of Appeal in the judgment of Justice Goudge in R. v. Hunter 2001 5637 (ON CA), [2001] O.J. No. 2388 and the decision of the Supreme of Canada in the judgment of Justice Sopinka in R. v. Ferris (1994), 1994 31 (SCC), 34 C.R. (4th) 26 (S.C.C.) which is discussed in Hunter. In Hunter the accused was charged with attempted murder, use of a firearm in the commission of an indictable offence and other gun related charges. A police officer testified that he came across the accused in a narrow passageway. The accused pointed a gun at him. He heard a click but the gun did not fire. At the preliminary hearing in provincial court at the Old City Hall in Toronto a witness heard the accused say to his lawyer in an open area outside of court "I had a gun but I did not point it.". He did not hear the context of the remark. The evidence was admitted at trial. Justice Goudge held that it ought to have been excluded. He referred to Ferris. In Ferris the accused was charged with murder. In that case the police overheard the accused in a telephone conversation with his father at the police station say "I've been arrested" and "I killed David". The Alberta Court of Appeal in the judgment of Justice Conrad held that the trial judge erred by not excluding the evidence on the basis that it’s prejudicial effect outweighed it’s probative value.
[16] In Hunter referring to Ferris, Justice Goudge said the following:
18 The Supreme Court of Canada dismissed the appeal from this judgment. The reasons of the court by Sopinka J. are as follows:
In our opinion, with respect to the evidence that the respondent was overheard to say "I killed David", if it had any relevance, by reason of the circumstances fully outlined by Conrad J.A. [reported at (1994), 1994 ABCA 20, 27 C.R. (4th) 141 (Alta. C.A.)], its meaning was so speculative and its probative value so tenuous that the trial judge ought to have excluded it on the ground its prejudicial effect overbore its probative value.
The appeal is therefore dismissed.
And with respect to the Hunter appeal:
21 In my view, without the surrounding words, it would be impossible for a properly instructed (the) jury to conclude that the overheard utterance was an admission or perhaps even what it meant. Clearly its meaning remains highly speculative. The trier of fact would have to guess at the words that came before and after to fix on a meaning. Since its meaning is highly speculative, its probative value is correspondingly tenuous. However, the substantial prejudicial effect is obvious. This balance clearly favours exclusion of the overheard utterance and, as in Ferris, that should have been the result.
[17] It is my opinion that the principles in Hunter and Ferris do not apply to this case. There is evidence in this case, in addition to the evidence of T.S., of what C.D. said to S.O.2. There is the evidence of C.D. of what he said that is in his statement which the Crown intends to file. There is also the evidence of S.O.2. She was made available by the crown at the preliminary hearing for the accused to cross examine. She may be called by the crown at the trial. If she is not she can be called by the defence.
[18] The crown agrees that there is no evidence that either C.D. or S.O.2 alone or together were pimping S.O.1 out to pedophiles. They could not have been doing this. If they were, the CAS certainly would not have placed S.O.1 with S.O.2.
[19] I agree with the crown that the evidence is relevant as to narrative. It explains how the matter came to be investigated by the police. I also agree with the crown that it supports the crown's allegations of the highly charged sexual atmosphere in which S.O.1 was living.
Result
[20] The application is dismissed.
Justice P.B. Hambly
Released: June 20, 2013
COURT FILE NO.: 1880/12
DATE: 2013-06-20
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
C.D. and G.T.
REASONS FOR JUDGMENT
P.B. Hambly J.
Released: June 20, 2013