Court File and Parties

Court File No.: 5-704/11 Date: 2013-01-07 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – C.C., Defendant

Counsel: Paul Zambonini, for the Crown Nyron Dwyer, for the Defendant

Heard: November 20, 22, 23, 26, 27, 28, and 29, 2012

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of THE COMPLAINANT and any information that could disclose such identity shall not be published in any document or broadcast in any way.

Spies J.

Introduction

[1] Mr. C. is charged with sexually assaulting S.A. sometime between March 1, 2009 and June 1, 2009 contrary to section 271(1)(a) of the Criminal Code. He re-elected trial without a jury and pleaded not guilty. Although S. was 20 to 21 years old in this timeframe, she is developmentally delayed. According to the Crown’s expert Dr. Temple, she functions cognitively at a mental age of a three to five year old child. Mr. C. admits that he had consensual intercourse with S.A. once and it is his position that the Crown has not proven that she did not have the necessary capacity to consent. In the alternative it is his position that he had an honest but mistaken belief in S.’s capacity to consent to sexual intercourse.

[2] I heard evidence from E.A.; S.’s older sister, her mother M.D.A. and S. S. adopted as true the videotaped statement that she gave to police on June 4, 2009 which was introduced into evidence. I will refer to each of these witnesses by their first names to avoid confusion. The Crown also called Karen Wadon, S.’s teacher for the 2008 to 2009 school year, Laura Mahoney who conducted a psychological assessment of S. for school purposes in March/April 2008 and Dr. Valerie Temple who was retained by the Crown to do an up-to-date psychological assessment of S. Both Ms. Mahoney and Dr. Temple were qualified to give expert evidence at the trial. In addition, the Crown tendered the statement Mr. C. gave to police on June 3, 2009 as part of the Crown’s case, which Mr. Dwyer conceded was given voluntarily. Mr. C. testified on his own behalf. He was known as “C.” to S., E. and M.D.

The Issues

[3] There are two main issues that I must consider. First, did S. have the capacity to consent to sexual intercourse with Mr. C. and second, if she did not, did he have an honest but mistaken belief that she had capacity to consent to sexual intercourse and had in fact consented. A central part of Mr. C.’s defence is his position that he spoke to S. in French Creole, that she spoke this language much better than English and when he spoke to S. in French Creole she seemed, to him, like a 30 year old woman.

The Evidence and Preliminary Findings of Fact

The Admissions

[4] Mr. C. made certain formal admissions. There is no issue that S. was pregnant in the spring of 2009. The pregnancy was aborted on June 12, 2009 at which point the fetus was 14 weeks gestational age by size. That would put the date that S. became pregnant at about March 6, 2009. DNA extracted from the fetal tissue was compared to the DNA of Mr. C. and it was determined that Mr. C. could not be excluded as the biological father of the fetal tissue. The likelihood of that DNA result is 16 million times greater if Mr. C. is the biological father of the fetal tissue than if a random man from the population is the biological father. Although there was no formal admission that Mr. C. was, in fact, the father of the fetus, this was not disputed. Mr. C. admitted when he testified that he had unprotected sexual intercourse with S. on one occasion.

Background

[5] S. was born in […] 1988 in St. Lucia. Her mother immigrated to Canada in 1990, when she was only one year old. S. lived with her with her maternal grandmother until she came to Canada. Her sister E., who is three years older, lived with S. for much of that time and at other times lived with their older sister nearby so she saw S. on a regular basis. The only contact they had with their mother when she was in Canada was through letters and telephone. M.D. was never able to go back to St. Lucia to visit.

[6] S. has a developmental disability of an unknown cause. The severity of that disability and its impact on her capacity to consent to sexual intercourse is an issue I will come to. There is no dispute that S. only received minimal schooling in St. Lucia. According to E., S. constantly had to repeat school in St. Lucia and never made it to high school. According to M.D., her mother told her that S. was being bullied at school and that she took her out of school as a result. On her evidence S. was only in school for one year in St. Lucia.

[7] In February 2007, when S. was almost 19 years old, she came to Canada with E. to live with their mother. They all lived together until April 2009 when E. moved out. At the material time, S. was living with her mother and for part of the time with her sister E., in a two bedroom, self contained basement apartment (save for the laundry) at 269 Thistledown Blvd. in Etobicoke.

[8] Once in Toronto, S. attended West Humber Collegiate for a special education program for children with disabilities. She then started going to the Haney Centre where she was learning basic life skills.

[9] Mr. C. is 45 years old. He was born and raised in St. Lucia. He has nine children. He had his first child at the age of nineteen. He raised five of his children and is still helping them financially now. The other four are living abroad. His youngest is 18 years old. Mr. C. came to Canada in June 2008. Germaine, his girlfriend of 21 years, came a month later. When he first arrived in Canada he stayed with people who he conversed with in French Creole. In September 2008, Mr. C. and Germaine moved into the other apartment in the basement at 269 Thistledown Blvd. Their bedroom and bathroom were on one side of the hallway and their kitchen was on the other side. Mr. C. said the hallway was essentially his living room area as he had no living room. It was this hallway that the A.’s used to enter their apartment which was at the end of the hall. Mr. C. came to Canada as a visitor and although he wasn’t allowed to work, he ended up working for a landscaper. I do not consider any immigration issues to be relevant to the issues in this case.

[10] During the material time, S.’s mother worked fulltime in a meat factory in Mississauga from Monday to Friday and sometimes Saturday. She travelled by bus and left at 2 p.m. and generally got home between 2 and 2:30 a.m. On Sunday she went to church. Accordingly, most of the time, S.’s mother was not home. Furthermore, a lot of the time when S.’s mother was home she was reading the bible or studying and praying to get ready for teaching Sunday school.

[11] S. went to school every weekday until mid afternoon. She was taken to and from school by bus from her home. Although her mother would get her ready for school in the morning, she left for work before S. got home from school. When she got home from work S. would be sleeping. M.D. testified that there was not a lot of time to talk to S. since she was so busy. Clearly on the evidence, even though S. was now living with her mother, her mother did not spend very much time with her. E. was also busy with going to school or work during the day and preaching as she is a Jehovah Witness.

[12] After school S. spent time with Joanne Norrie, a counsellor from Surrey Place, an agency funded by the government, who worked with and took care of S. She apparently took her out to various programs. According to M.D., most of the time S. was with Ms. Norrie because she was working. Ms. Norrie did not testify although I understand that she worked with S. for a long time. E. testified that if she and M.D. were out, the lady living upstairs would look after S. E. testified that she took care of her sister at night although she also went out at night leaving S. behind. After E. moved out, as far as she knew, S. would stay with the family upstairs after school. She acknowledged, however, that S. would be in the apartment by herself a few times if she didn’t want to play. S.’s mother insisted that S. was never home alone, not even once. According to Mr. C., S. was home alone 80% of the time. He testified that M.D. asked him to keep S. company because she was alone in the house. Given all of the evidence, I find that S. was left alone in the apartment from time to time after school or in the evenings and this must have increased as of April 2009 when E. moved out.

[13] According to E. and M.D., S. had no friends except for the two girls upstairs and Joanne Norrie apart from anyone she knew at school. Mr. C. testified that S. was taken out from time to time by a 50 year old man named Winston but neither E. nor M.D. were asked about this.

[14] It does not appear that Mr. C. developed much of a relationship with E. while she was living in the apartment. There is a dispute between the evidence of M.D. and Mr. C. as to the nature of the relationship between the two of them. M.D. testified that she saw Mr. C. as a tenant, not her friend. She denied that he helped with the bills, took her grocery shopping or ever drove her to or from work. She admitted that they did share food with him and that sometimes on a Sunday they would have meals with Mr. C. after church. She did this because she is a Christian. She said that she didn’t want to be Mr. C.’s friend because she didn’t trust people from St. Lucia. She said that she did not talk much with either Mr. C. or his girlfriend. E., however, said that her mother was very friendly to Mr. C. and that they became good friends, that they would talk together in English and that her mother spent time with Mr. C.’s girlfriend.

[15] Mr. C. on the other hand said he became “extra friends” with the A.’s and that they lived in the basement “like one family”. He testified that Germaine would be in the house all day with M.D. and she went with them everywhere. Once they really got to know each other Mr. C. said they had meals together most of the time. After Germaine left Mr. C. said that he wasn’t cooking every day and M.D. would tell him not to cook because she had already cooked. She would bring home meat from the place where she was working all the time. He also cooked for S. and her mother. Mr. C. also testified that he dropped M.D. off at work about 10-15 times in the six months he was living there and probably picked her up the same number of times. According to Mr. C., he gave the A.’s money and took them shopping and M.D. would do his laundry sometimes.

[16] I believe that M.D. was downplaying her relationship with Mr. C., particularly given the evidence of E. which I accept, and that Mr. C. was likely exaggerating it somewhat. I do believe, however, that the evidence of Mr. C. is closer to the truth. M.D. was a single mother and was very busy. I see no reason why she would not have asked for or at least accepted help from Mr. C. in getting to and from work from time to time. Since she was working in a meat plant the fact that she shared food with him is not only admitted by her but makes sense. Certainly I do not believe that S. would have observed any conduct on the part of her mother or sister that would have suggested to her that she should be afraid of Mr. C. or stay away from him.

[17] On January 18, 2009, Germaine went back to St. Lucia to take care of her children. Mr. C. testified that S.’s behaviour began to change towards him at this time. I will come back to this.

[18] E. and her mother described how in the spring of 2009 S. became sick with nausea; she was constantly throwing up and was not eating and sleeping a lot. They didn’t know what was wrong with S. Ms. Norrie took S. to a doctor who said she was fine. E. was not convinced and took her to a walk-in clinic. To E.’s surprise they found out that S. was three months pregnant. Once M.D. found out S. was pregnant, she called the police right away and Mr. C. was arrested.

[19] E. took S. to Mount Sinai Hospital for the abortion of the fetus in June 2009. She only told S. that she brought her to the hospital because she was sick. On the way home, after the procedure, S. was bleeding in the cab and told E. that she had woken up and her period had come. As I will come to, having heard S. testify there is no doubt in my mind that she has no understanding or memory of the fact that she was pregnant or that she had an abortion.

[20] After S.’s pregnancy, M.D. left her job and began to stay home with S.

S.’s Relationship with Mr. C.

[21] There was very little evidence from M.D. and E. as to any relationship between S. and Mr. C. E. testified that she never saw S. conversing with Mr. C. privately. M.D. testified that she knew S. was talking to Mr. C. but she didn’t know how close they were or what language they spoke or even if S. liked or disliked Mr. C. M.D. said that she only saw Mr. C. speak to S. if they were eating together on a Saturday or Sunday afternoon. They wouldn’t say much to each other. She never saw them talking privately.

[22] Mr. C. testified that he developed a friendship with S.; she was his best friend in the entire house. However, while Germaine was living with Mr. C. he testified that S. did not talk a lot to Germaine or to him. I presume, therefore, that the friendship developed more after Germaine returned to St. Lucia.

[23] Mr. C. testified that after Germaine went back to St. Lucia he saw some changes in S.; as he put it, it was after that that S. “start proving” her age. Mr. C. used the word “prove” quite a lot in connection with S. proving to him that she was actually 20 years old. Her mother would tell him that she was that age but he didn’t believe S. He wanted her to prove otherwise. This evidence of S. having to “prove” her age becomes important to my analysis.

[24] Mr. C. testified that S. told him that she loved music and he bought her a Discman. They used to listen to music together and they would watch television together on the station where they just play music. She told him the kind of music that she liked.

[25] Mr. C. testified that S. used to wait for him to come home from work because she knew that was the only time she would have a little happiness in her life. According to Mr. C. he was the only friend S. had to talk to. If he came into the apartment too fast she would knock on his door and say “C. I know you’re inside there. Open there”. He would ask her to leave him alone but she kept asking to come in. A lot of times he came home very tired and he would just have to make time to keep her company. Sometimes he would park his truck 200-300 feet away from the house so he could nap in the truck in order to avoid S. seeing his truck outside and knowing that he was home.

[26] Mr. C. testified that he and S. talked about a lot of different things and kept on “talking and talking and talking”. He would talk to her about what she did at school. She told him that she was doing a little painting and once she said she was helping the teachers wash dishes.

[27] S.’s mother testified that S. used to tell her and Ms. Norrie that C. was asking her to sleep with him, he told her he was going to take her to Niagara Falls, that he wanted to take pictures of her naked on his bed and he wanted her to come into his room. This was before they knew S. was pregnant. She initially told S. that C. was a good man and wouldn’t do that. Ms. Norrie, however, told her to listen to S. and so she did talk to Mr. C. about this. She told Mr. C. the specific things S. had said he had said. C. told her he was just joking. She told him that he shouldn’t say these things to S. because she didn’t “understand nothing and she’s autistic” and that he needed to leave her alone.

[28] Mr. C. testified about his discussions with S. about Niagara Falls. He said that one day, not long after he had moved in, E. was on the computer looking at a picture of Niagara Falls. S. asked Mr. C. where it was and he told her although he hadn’t been there yet. She asked if he would bring her there and he said he would one of these days. According to Mr. C., every day after that when he came home she would ask when he was going to bring her to Niagara Falls. He told her it was a place where people go swimming. He didn’t know any better as every waterfall in St. Lucia is a place where you can swim. He told S. that for her to go to Niagara Falls she would have to make her mother buy her a swimming suit but that at the time it was very icy so there was no way they could go. S. didn’t want to hear that. He also told her that she would need a camera to take pictures. When Ms. Norrie came to talk to Mr. C. about this he told her that he was just joking with S. Ms. Norrie told him people don’t swim in Niagara Falls. Mr. C. denied the suggestion that M.D. told him not to bother S. or talk to her about Niagara Falls.

[29] Mr. C. gave evidence about why he thought S.’s behaviour changed after Germaine returned to St. Lucia. He said that when Germaine was still living with him, S. saw that they went into the bathroom to bathe together. He did not explain how S. would have seen this although the door to his bathroom was in the hallway. Mr. C. also testified that there was a guy that used to come and see S.’s mother and that E. had a boyfriend. He speculated S. had that in her mind and that as soon as his girlfriend left that is why things changed. If she went to the shower she would come and tell him “C. I go into the shower”. When he asked her why she was telling him this she said that he used to go into the shower with his girlfriend. He would say “well, you’re not my girlfriend, you’re a little child, and you’re not my girlfriend”. S. then started to “misbehave”. He said by this he meant she started behaving in a funny way and questioning him as to whether he had girlfriends.

[30] Mr. C. described a time on February 14, 2009, when he had two female friends drop by and they had some drinks in his room during the day. The next day, in French Creole, S. said to him: “Don’t fucking call me” and that she didn’t talk to him for two weeks. Mr. C. thought she was upset because he had brought women into his room. He testified that he then said to himself S. “you is a little child but you see, S., you’re not a little child. Probably you have a little childish in you, but you’re not a little child.” This statement confirmed his belief that S. was a “little child” but as I interpreted this evidence, because she was jealous Mr. C. believed she was acting in a way that was not consistent with a little child.

[31] Mr. C. admitted that he did joke with S. and say things like “When are we gonna get married?” He didn’t think she would take it for real. However, one time S. showed him a picture of a ring and told him that it was the ring he had to buy for them to get married. He took that for a little joke. When asked during his police interview if that didn’t make him wonder about her maturity, Mr. C. said at that time he started thinking about what her maturity was and started realizing that she’s probably older than he thought. That was the time he started questioning her to see her ID. According to Mr. C., S.’s mother started to say every time he entered the apartment “S., here’s C. You like C.? You’re gonna marry C.?” M.D. denied ever suggesting that Mr. C. marry S.

[32] Mr. C. testified that although he spent a lot of time with S., he didn’t know how old she was unless she proved to him how old she was. He testified that S. wanted to develop a relationship and he wanted a friendship and that she had to “prove to me that she’s matured to have a friendship”.

[33] Once when S. came from school Mr. C. asked her why she told him that she was a “big woman” and was still going to school. She told him that she was going to help the people in the school. He asked her what she had to prove to him that she was a “big woman” and she showed him her school ID. He testified as a result “I consider she’s an adult. The school ID would not lie. That’s how I realized the age was true but, I still think to myself, I say, no way, S., that’s not going to happen.” I presume the “that” was a reference to a sexual relationship.

[34] Mr. C. also testified that he told S. that the only proof she could give to him to make him believe that she was a “big woman like you’re saying” was her passport. He said her school ID was a fake ID. He testified that he said this because he knew she didn’t have her passport in the apartment. According to Mr. C., E. had told him that she was taking S.’s passport when she left because she didn’t trust her mother. Mr. C. testified that he then heard S. on the phone telling E. to bring her passport for her. The next day S. had her passport and asked if he could now believe that she was a big woman. He said yes he did. E. recalled speaking to S. on the phone and S. asking for her passport; she did not know why. According to E., it was her mother who called for S. as she could not make a call and she heard her mother in the background. M.D. was not asked about this.

The Sexual Intercourse

[35] Mr. C. admitted to the police and in his evidence at trial that he had sexual intercourse with S. on one occasion probably in late March 2009. He admitted that he didn’t use a condom. His description of this event to police and at trial was essentially the same although there were some variations as I will come to. Essentially it is his evidence that S. was always coming and telling him “C., I’m going for a shower” and that on this occasion she tried to get him to take a shower with her which he refused. At this point he was inside his room with the door open. She then told him to “watch” and when he did she opened the bath towel. She wasn’t wearing anything underneath. He thought she must be crazy to come and open the bath towel right in his room and show him and he was surprised. She was then in the bathroom for 10-15 minutes and came out and told him she was finished. He said why don’t you put your clothes on and she said she would. He was sitting in the hallway at this point on a chair.

[36] Mr. C. testified that S. came back five minutes later in the same bath towel and posed and showed him “everything that God gave her”. He was sitting in the hallway at this time and they were alone in the apartment. S. came behind his back and held him around the neck with her breast touching his back and said “C., you don’t like me?” and he asked her to leave him alone. He told her he did not want to involve himself, that it was a friendship, not a relationship. According to Mr. C., S. started to touch his breasts and she was laughing. After S. started touching him he started touching her. She told him that she loved him and that they were going to get married. She kept “troubling” him and troubling him and finally she came and sat on him and put her legs on either side of him and they had intercourse as he was sitting in the chair. He just unzipped his pants. According to Mr. C., he ejaculated on the ground in the hallway and afterwards S. got a mop and passed it on the ground to see if any little bit of sperm had fallen there as she didn’t want her mother to find out.

[37] Mr. C. was very clear in his evidence that the sexual intercourse was S.’s idea and at one point in his evidence he said that he granted “S. a favour,” by engaging in intercourse with her and he thought she would take it as a favour and forget about it. He was also firm that the sexual intercourse only occurred once. When asked by the officer if he would be surprised if the forensic testing showed that the baby was his he said no. I note this answer is not likely consistent with his version of one occasion of sexual intercourse when he says he ejaculated outside S.’s body. When asked again he said well actually he would be surprised because he wasn’t expecting anything like that.

[38] Mr. C. said that he was in the hallway because he thought S. would come to his room and he was trying to avoid that. When asked why he wouldn’t just lock his room he said it was definitely a good question but he didn’t. He then said he was remembering more and that he had a pot on the stove in the kitchen. He could see the pot on the stove from where he was sitting. He also added that when S. came back she started pouting and they started talking and talking. He asked S. if she had sex before and she told him she had a boyfriend in St. Lucia and she had to leave him and get another man. Mr. C. stated that all of a sudden “it happened” and S. started showing him her breast and passed it around underneath his chin. When he had sex with S. he thought she knew what she was doing. Mr. C. testified that he never used the term “making babies” in the way that S. used it in her statement to police. He always used to tell her “babies cannot make babies”. He did this because he used to call her a little baby in Creole any time she would come and he wanted to rest.

[39] Mr. C. said that he was sorry for having sex with S. and that he had tried his utmost best to see that he never had sex with her. He didn’t want it to happen, it happened once and it would not have happened again. If he had wanted to have sex with S. every night he could have done that. When asked if he forced S. to have sex he said he could not force her to have sex because when she came to him with the bath towel all he had to do was “ let her enjoy herself” like he did. She came over and put one leg on one side and one leg on the other side and unzipped his pants and put his penis in her vagina and that’s how it started. She said “C. I know what is sex and I know how to have sex”. At another point Mr. C. stated that the way S. was feeling about him if he had wanted to have sex with S. two or three times a night she would have let it happen. Given Mr. C. told the officers that S. had been coming up to him on earlier occasions showing him what was under her bathrobe, he was asked why the sex hadn’t happened earlier. He responded “well, because she proved to me that she’s a woman … she bring me ID. She bring her passport to prove to me that she’s a woman.”

[40] In his statement to police Mr. C. stated that when they had sex S. didn’t say she wanted to have sex and neither did he. She just came around his back and held him and then she “grow up my feelings a little bit” and he said “OK, S., I know that’s what you want. Let’s have sex”. When asked what he meant by “grow up your feelings” he responded that any time someone plays with your boobies and stuff like that you’re going to have a little bit of feelings and that’s the way the sex takes place.

[41] Mr. C. stated that when he had sexual intercourse with S. he didn’t think he was doing anything wrong except cheating on his girlfriend. He said to himself, “S. is 21 years old, she wants to have sex and she’s pushing to have sex and she’s going crazy” and so he thought “all right S., you want to have sex, go ahead let’s have sex”.

[42] When the officer asked Mr. C. if he asked S. to lie down in his bed so he could take pictures of her naked he did not deny it but asked why he should do that when he was locking his room every minute when he saw her. He had to “run from S., just because I don’t want to make S. feel too bad”. He added that he wouldn’t have had to ask her to go on a bed. She was going to the washroom naked and calling him and telling him “C. are you coming or not coming”. He didn’t need to bring her on a bed to see her naked. At another point however Mr. C. stated that S. never lay down on his bed and he never went on her bed.

[43] According to Mr. C. after the sexual intercourse “the trouble” started. When he came home from work the next afternoon S. was outside her apartment and told him that she had locked her key inside the room. She wanted to rest by him until her mother came. He said “no your mother’s not coming until 3 in the night and that’s not going to happen.” He called S.’s mother and she did not give him a “good response”. She asked him to let S. stay with him but he wanted to rest and could not have her there. He called E. and E. told him how to open the door with a knife and he did that. Two days later S. had the same idea telling him she had locked herself out. However, in his evidence in chief Mr. C. said that after the sexual intercourse nothing changed about the relationship other than he got arrested. He said everything was just as it was from the beginning to the middle and to the end

[44] Mr. C. testified that he didn’t want things to go any further with S. because he had not wanted to have sex with her but it happened because of the way S. was behaving and saying nobody liked her. He said the way she was living there anyone would have already walked out of the house and that S. was in a “very, very, very bad state down there” which is why he took care of her. S. wanted to add sex to a good relationship that he had with her. He didn’t want that because he could get any woman if he wanted to and he had a girlfriend who knew S.

[45] Mr. C. also said that he was the one who delayed the sex and that he “delayed and delayed” it because he took S. as a friend and he was insisting to her that she was too young. He said that he was looking at her like she was 17 or 18 and he has kids that “is the same capacity” and that was the reason why he was pulling back. However, S. didn’t want that and had to prove to him that she was older than what he thought. She showed him her ID to show him that she was 21 years old.

[46] Before this incident Mr. C. testified that S. would come and give him a little kiss on the cheek and then run into her apartment and laugh asking if he liked it. He said a lot of little things happened before this that he used to take as a joke. According to Mr. C., S.’s mother asked him many times to get a boyfriend for S. if he didn’t like her. M.D. was not asked about this.

[47] Turning to S.’s version of events, the most reliable evidence that she gave that related to the sexual intercourse with Mr. C. was in her statement to police on June 4, 2009. She did give some evidence at trial, during her cross-examination but it was mostly simply agreeing to leading questions from Mr. Dwyer. As I will come to she gave some evidence at trial suggesting that Mr. C. physically forced her to have sexual intercourse with him which I find is not reliable. As a result, the primary relevance to her further evidence at trial was to assist me in determining her capacity. I will review her statement in some detail because it also illustrates her ability to carry on a conversation, albeit in English, which is an issue raised in this trial.

[48] When S. gave her statement her counsellor Joanne Norrie was present. After discussing her age S. said out of the blue that “C.’s trouble with me and he’s smoking cigarettes and he’s saying that I have – I am making all babies all the time.” When asked how she knew C. she said “Because you know why he’s smoking cigarettes and … he’s telling me ‘if I make him baby’ I tell him ‘I don’t make him baby’.” When asked what “making baby” means S. answered: “when you pregnant”. S. told the officers that she told C. “I no making babies”. When asked if C. ever asked her to do something she said that he told her that “I want to have a kid baby that I don’t have to …” ‘I tell I’m not making babies’. When asked if she knew how to make babies she responded “I’m not making babies”. She told the officer that she always stayed by her own self in her room colouring in her book. When asked if she was ever home alone she said no she was with her sister and her mom. When asked if she had ever been in C.’s room she said “I not go in his room anymore”.

[49] When the officer tried to find out about S. going into C.’s room, she kept talking in the present, that they were not talking to him and that she didn’t go in his room. When asked if she talked to C. she said she didn’t. She said her mother and sister both worked in the night and so she would be home alone. She would read her colouring book, colour and go to sleep. When asked why she didn’t want to talk to C. anymore she said her mother told her not to talk to him. Her mom was crying because of C. When asked why her mother was sad because of C. she responded that “they” told him not to come back in the house. When asked why they didn’t want C. in the house anymore she said it was because they were going to arrest him. When asked why she responded “he always telling me I – I making baby”. She was then concerned that she didn’t want to get herself in trouble. When pressed she would only refer to the fact he used cigarettes in his room. She then said that C. was in her room smoking cigarettes. When asked if anyone had ever lain down in her bed she said just her alone. When asked what C. did in her room she said that he was sitting in the kitchen drinking tea.

[50] When S. was asked if C. ever did anything to her she did not want to talk about it but eventually with some encouragement said that “he said to me like … sex with me, but I tell him ‘I don’t – I don’t have to, I don’t make baby.” When asked what it meant when C. asked for sex S. said she didn’t know but that he came in her room and “trouble me”. When asked again about the sex she was talking about with C. she said “He told me … I make him babies – he always making me babies and you make me upset right now.” She then said that he told her “I just have to make babies” and she told him that she doesn’t have to make a baby and that she “I don’t make him baby – I don’t pregnant for nobody.” When asked what she meant by “he gives her trouble” S. said “he always telling me that I make him babies all the time.” Later she said that when she was making babies all the time and every time she made him babies he said to her “why should not make babies?” and she told him she wasn’t “making baby again. I’m grown up C. I’m bigger than you.” When asked what she meant by “making babies” she said that when you are old and die you can have cancer in your belly. She said she told C. she was not making babies for him. When asked how she would make a baby she said she didn’t know. When asked what sex meant to her she answered “you know why he’s making me to have babies.” She didn’t know what sex means. When asked if she used to trust C. she said she didn’t like him anymore. Again she was unable to grasp the fact that the question was asking about her relationship with C. in the past. When asked if she remembered when she first met him again she said she didn’t talk to him. The only reason she thought C. would get arrested was because he had been told not to come back in the house again. When asked again about what she meant when she said C. was “troubling me” she referred to the fact he smoked cigarettes in the hallway and in her room.

[51] During her cross-examination at trial M.D. testified that after she found out S. was pregnant she apologized to her for not believing her about what she was saying about C. She asked her to tell her the truth and tell her whether or not she had sex with C. According to M.D., S. said “Yes mommy, but he forced me to have sex with him. He put my hands on my mouth and pulled my hand behind my back and he told me if I said anything to anybody, I’m going to kill you.” She testified that S. told her this after the police left and she didn’t remember whether she told the police this. The only reason I heard this evidence was because of its impact on the credibility of M.D. It was agreed that the first time the Crown heard that S. had apparently told her mother that C. had forced sex and the other evidence she gave concerning S.’s description of this was just before she testified when she was in the victim impact room. There was some evidence from S. at trial, consistent with this alleged statement from S. but as I will explain, I did not find this evidence reliable.

The Lay Evidence Concerning S.’s Intellectual Ability

Evidence of E. and M.D.A.

[52] E. is the only witness who testified who has been close to S. her whole life. She testified as to what she believes S. can and cannot do. For reasons that follow I found E.’s evidence reliable and credible. Much of E.’s evidence was corroborated by the evidence of S.’s mother, her teacher Ms. Wadon, and to some extent what I observed in the courtroom. It can be summarized as follows:

S. is not able to spell her name.

S. can spell basic words like “boy” or “cat” but can’t write full sentences, or at least sentences that make sense. As E. put it, although her favourite thing is writing you don’t know what she is writing.

S. does not know all the numbers.

S. can say the alphabet but may skip letters.

S. cannot read.

S. loves colouring but doesn’t do it well. According to E. she is unable to distinguish colours. She certainly does not know her colours.

S. knows what money is but can’t count it.

S. does not know how to tell the time.

S.’s mother helps her in the shower as she does not wash herself properly on her own but she can brush her teeth and go to the bathroom on her own.

S. is able to put clothes on herself but does not dress properly without help. She needs help with her hair.

S. can make a sandwich or a cup of tea but is not able to fry an egg. However she can’t turn on the stove and it would not be considered safe to let her use the stove on her own. She can’t operate a microwave.

S. can make up her bed.

S. can’t pick up the phone and dial a number although she could answer the phone.

S. is not able to go to the corner store to buy something because she would get lost.

S. likes to play with little children. S. played with two little girls who lived upstairs. According to M.D. one of the girls was seven and the other was five although Mr. C. testified that they were 12 and 14.

[53] In cross-examination E. said that S. loves people and loves attention and if she is very comfortable with someone she is overly friendly and very affectionate and will touch that person with her hands. She wants to talk to people especially when she gets close to them but E. denied that she could carry on a conversation. E. testified that you can only have a simple conversation with S.; nothing too elaborate. When she talks sometimes you don’t know what she is talking about.

[54] E. admitted that when she gave a statement to police on June 3, 2009, she said that S. thinks she’s an adult and that she’s older and wants to be treated that way. E. agreed with this statement at trial but said she hadn’t clarified herself enough because S. could not do things adults like to do like go to parties. E. testified that she believes that her sister has the mentality of someone who is four or five although she wants to be older. E. couldn’t think of anything else that S. could do that was beyond the level of a four or five year old child.

[55] M.D. testified that she thought S. was functioning at the age of a 10-12 year old based on her experience until the psychiatrist said she was between four and five years old. She said that it was like “she’s [S.’s] dead” in the sense that she is there but she doesn’t understand anything that is going on around her in the world. She did not think S. understands anything about sex because she doesn’t mention that to her. When E. found out her sister was pregnant, to her this was impossible. From her understanding S. did not know what sex was about and she knew that S. did not think and behave like a normal person. She queried what man would have sex with her. It didn’t make sense.

[56] Both M.D. and E. testified that when they told S. she was pregnant she became very upset but she didn’t understand what it meant to be pregnant. E. testified that when she asked S. if she had sex with anyone, she would jump up and stomp her feet and try to throw things at her in response. She did not seem to understand what it meant to be pregnant and she does not know the risks of getting pregnant. She didn’t understand that the baby was aborted. According to her mother, up to now, S. doesn’t know what happened or remember any of this happening.

Evidence of Karen Wadon

[57] Ms. Wadon is now retired from teaching after 35 years in the field. She taught S. in the September 2008 – June 2009 school year in a class of eight or nine students, all between the age of 17 and 21, at the Haney Centre. She saw S. from 8:30 a.m. to 3:30 p.m. five days a week for the most part although a different teacher taught S. for math. Although there was an academic component, the focus at the Haney Centre was to teach S. life skills so she could become as independent as possible.

[58] Ms. Wadon did not see S. outside of school. She was however able to provide considerable evidence as to S.’s abilities in school which to a large extent corroborated the evidence of E. and M.D.

[59] Ms. Wadon testified that:

(a) S. was able to print her first name inconsistently; she had some letter recognition.

(b) S. did not know her colours or her shapes. She wouldn’t know for example the colour green if shown two colours.

(c) S. was not able to read and so she was being taught international symbols and keywords. They were also working on her being able to read for example a price, or telling time.

(d) They were working with S. on learning how to cross the street. She could not safely cross the street on her own and wouldn’t be able to remember how to walk to even regular places. She would need full support when she was out.

(e) They were working on coin identification, being able to read a price and telling time. In Ms. Wadon’s opinion S. was not able to go to a store and make a purchase. Even if she could get to the store she might not be able to locate the item or negotiate a line-up.

(f) S. could go to the washroom on her own and dress herself provided simple instructions were provided.

(g) S. was not able to make meals; she couldn’t for example peel an orange. She could not safely turn on the stove and Ms. Wadon would not let her do so without supervision.

(h) Ms. Wadon couldn’t say if S. would be alright at home alone but she testified that she would not have left her at school on her own.

(i) S. would be able to express her likes and dislikes.

[60] According to Ms. Wadon, in conversation there probably wouldn’t be much eye contact and S. would seem a bit distracted. She could relate events but they would be jumbled. The conversation would be pretty basic and she wouldn’t be able to get into too much detail.

[61] In terms of interaction with other students, Ms. Wadon testified that S. got along with the others although there were some conflicts. Ms. Wadon described a “Circles Program” which was used to teach the students about relationships. A graph of rainbow colours with the student in the centre was used to show how much one should talk and trust and touch other persons. This was done with S. once a week for over two months. Ms. Wadon testified that S. didn’t really grasp the concept of the program.

[62] Ms. Wadon testified that sexual activity was a topic that never came up with S. It was not part of the curriculum. S. never talked to her about any romantic involvement.

[63] Ms. Wadon testified that S. was at about the four year old level but in social interaction might be younger. She disagreed with the proposition put to her by Mr. Dwyer that socially S. was much more sophisticated than a four year old socially, when eating lunch, interacting with the other students or talking to her. In cross-examination when Mr. Dwyer asked Ms. Wadon about S.’s social skills, she said that S.’s ability to engage in small talk, for example, knowing about the weather, would be quite limited and would be a “red light to someone that there is an issue here”. By “red light” she meant that she thinks someone would notice after interacting with S. for a bit that something was not right. She was not aware of any context where the fact S. has an intellectual disability would not be evident to others.

Evidence of C.C.

[64] M.D. testified that Mr. C. didn’t know anything about S.’s limitations when she told him about S. and that she wanted him to stay away from S. because she “doesn’t understand nothing”. I presume this was at the time of the conversation she alleges she had with Mr. C. in connection with the talk of going to Niagara Falls. M.D. testified that she told Mr. C. that S. couldn’t cook for herself, could not read and write, could not even put water on the stove to make some tea or shower by herself. Mr. C. was not asked about this aspect of the conversation.

[65] Mr. C. admitted when he first met S. he would say she was around 13 or 14 but that was watching her without talking to her. He testified that once they started sitting down and talking he realized she was “a little bit more mature”. He then thought she was somewhere between 16 and 18. Once she proved it to him, which I presume is a reference to S. showing Mr. C. her school ID and passport, he realized that “definitely well you’re matured for sure”.

[66] Mr. C. did admit that he told S. at times that she was behaving “too much like a little child” but he said that was when she asked for something and he didn’t bring it. He would tell S. that she should stop behaving like she was a “little kid” and he said that’s why she told police that he was telling her about babies. He also admitted that he called S. a Creole word that means “little baby” or “little child”. She wanted him to stop calling her a little child.

[67] When interviewed by police and asked what he thought about whether S. functioned like a 21 year old Mr. C. said that in certain circumstances she seemed even older than 21 years old and that “she knows about a lot. You will meet S. today and you’ll see that she’s two years or three years but if she take you as a friend and she start talking to you you’re gonna [sic] see definitely she’s like 30 years old …You’re going to see that she’s mature.” According to Mr. C. when he talked to S. in French Creole she understood everything. If he promised to do something for her she would remind him which to him meant she understood what he had told her. When she talked about back home she talked like an adult. Eighty percent of their interaction was in French Creole. He said at the time S. knew very little in English; just simple phrases.

[68] When Mr. C. was asked by the officer what sort of things they talked about to make him believe S. was like a 30 year old he answered that she told him what kind of life she had in St. Lucia. She used to go out and do what she wanted. She would come back to the house when she wanted. She said she had a boyfriend; an Indian fellow, in St. Lucia which her parents didn’t like. She then fell out with him and “fell into another one”. Mr. C. said that not even S.’s mother knew S. like he knew her because they had the time to sit down and talk and she would tell him things. When Mr. C. was asked what S. did when she acted like she was two or three he said she would go on like “C., you going to buy for me”. If he said he forgot, she would pretend that she was a baby and start playing like a little child because he didn’t bring her what he promised her.

[69] Mr. C. was asked by the officer about what he knew about “S.’s problems” he said the only thing he saw wrong with S. was that there was some kind of problem with her memory and that she was “forgettable”. He said she wouldn’t really remember everything all the time. He gave as an example if you tell her on a Monday to tell her mother she doesn’t have school on Friday she will remember to tell her mother but you need to remind her that she has no school on Friday. Apart from that he said that he saw S. do “everything like a woman”. Mr. C. also said that he definitely believed that S.’s problem was lack of education.

[70] Mr. C. said that no one told him that S. was mentally retarded or anything like that. The way they (I presume a reference to M.D. and E.) used to explain S.’s behaviour when she was acting like a little child was to say that she was a little childish. Mr. C. did admit that when he saw the way S.’s mother and E. treated her he did wonder why they were treating her like that. He said if S. was still back in St. Lucia probably half of her friends at the age of nineteen would have babies because that’s the usual thing back home.

[71] Mr. C. knew that S. went to the Haney School although he said he didn’t know anything about the school except that it was not a “read and write school” because she would tell him she would wash the dishes and things like that in school. When S. told him she was helping at school he told her that he didn’t believe that.

[72] Mr. C. testified that S. never talked to him about the classes that she was taking. This however was at odds with his other evidence that they talked about what she did at school. He testified that S. showed him different things that they gave her to do like her painting. When asked how old would you think the person was by looking at her painting, Mr. C. said that the person that can do the kind of painting that she was doing and showed to him would have to be over 20 years old. This assumes she drew it and then painted it. If it was just painting that she did it would be someone like 16-17 years. At another point however, Mr. C. testified that S. showed him a few things that she had coloured at school and that this caused him “a little bit” of concern. However he added that if you’ve never been among people colouring he thought that you won’t be able to colour and that since S. had never gone to school she wouldn’t know.

[73] Mr. C. knew S. could not read or write properly. He said that you will find this everywhere in St. Lucia so he did not find it strange. He had never seen her read books. He would sometimes sit with her and show her different words. She would show him what she did at school. He referred to “little writings” that she wrote.

[74] Mr. C. knew that a school bus took S. to school picking her up at home and that the bus brought her home. He also knew the kids upstairs walked down the road to catch the bus. When asked if he found this strange, he said S. was someone he never saw go do any business on her own in the mall or buy things at the convenience store. He wasn’t sure if it was because of the school she was going to that the bus stopped to pick her up at the house. He didn’t think she ever went to the mall by herself. He said that he didn’t think her mother would let her go “this far by herself”. When this was questioned he then said that he did think she could go there on her own. He admitted that he never saw S. go out by herself.

[75] Mr. C. said he didn’t find it strange that S. didn’t go anywhere by herself. He said the area where they lived there was nothing close around. According to Mr. C., the reason S. could not go out to places by herself was because she was never brought anywhere. He explained that in order to go to the Albion Mall someone would have to bring you there one or two times and then you could probably go on your own. S. did not know where the Albion Mall was so she would not be able to go by herself. According to Mr. C., S. told him that she bought groceries for her grandmother in St Lucia on a daily basis as she wasn’t going to school.

[76] Mr. C. was aware that S. was playing with two children upstairs. He said she only played with them for a short time before there was a fight between the mother of these children and S.’s mother because there was an allegation S. had hit the kids too hard and as a result S. couldn’t play with them anymore. He said that he wouldn’t know if she could bathe herself properly or brush her teeth properly as he never saw that. He never saw that she could not cook.

[77] During the course of the police interview Mr. C. got off topic quite often. At one point he told the officers that he had “taken care” of S. since he had moved in six months earlier and he also said that S.’s mother would ask him to check on S. for her. When asked what he meant by “taking care of her” he said that she always had needs and would come and ask him what she needed. He then gave the example of when she needed batteries for a Discman that was not playing. Every time something was wrong he was the one fixing it. When asked why, as a 21 year old girl, he thought she couldn’t handle this on her own he responded that maybe she didn’t get the care from her mother. He agreed, however, that he would think a 21 year old would normally be able to get these things without help from her mother. When asked again why S. would come to him he said she didn’t have the finances. He knew she did not work and he had no idea why not. He never saw her with any money. S. did not know money because she never had any.

[78] When Mr. C. was asked if it seemed strange S. didn’t have a lot of friends coming over, he said there was one man named Winston who was about 50 years old who used to take S. out. He didn’t know his connection to the family although it seemed like he was a friend of the family. S. told him that she didn’t want to go out with Winston because she didn’t like him because he was too old. S. told him that every time she went in Winston’s car he wanted to kiss her. Neither E. nor M.D. were asked about this.

[79] At trial Mr. C. talked about one occasion when he was out with friends on a Saturday and S.’s mother called him and reminded him that he had promised to take S. out. He hadn’t given her a time yet but S. was already dressed up and waiting so he had to leave his friends. As he was coming down the road towards the house he found S. walking down the road. This seemingly was of concern to him at the time.

[80] When Mr. C. was asked by police if he thought S. was an able-minded 21 year old who was able to consent to sex he responded yes. When asked if he thought S. could care for a baby he said yes because she could do everything. He told the officer he honestly thought she could go through nine months of pregnancy, give birth to a child and successfully raise a child.

[81] Later in his statement Mr. C. referred to S. as a “little girl” and that “she was like 15 – 16 – 17” and that he never thought until he saw her ID that she was 21 years old. He was then asked if he hadn’t seen S.’s ID, given the way she acts and looks how old he would say she was, if for example he’d met her on the street. Mr. C. responded “something like 18 years old” but he added that was before they had a good conversation. When they had a good conversation she sounded like a 30 year old woman. This is when she was telling him her life stories; because of the things she was telling him she used to do back home. Both the passport and school ID showed that she was 20 years old. When asked how it was that she showed him ID he said the reason that he asked for it was so she could prove her age to him because he didn’t believe that she was the age that she said. He was then asked why he would need proof given he had conversations that led him to believe she was 30 years old. Mr. C. said those conversations were after. When pressed he thought S. showed him the ID and her passport in late February/early March.

[82] When challenged as to how S. could come across as a 30 year old woman Mr. C. maintained his position and said that “she can make you believe that she’s a big woman, because you will ask her … ‘S. you’s a little child’ and she will not talk to you anymore. She’s gonna get vexed ‘I’m a big woman, C.’. She’s gonna tell you that every day, every minute, every hour ‘I’m a big woman C.’.”

[83] At trial, when Mr. Dwyer asked Mr. C. if he thought there was anything wrong with S. or if she had any kind of problem he said “yes, yes, definitely” and went on to say he believed the main reason for her behaviour was because of a lack of education and that she could not express herself. Everyone was speaking English and she didn’t understand them. Around people speaking English “you could see her behaviour is very low. But, when she and I are there, you will see a lot difference because she tell me everything about her entire life.” He testified that the way she spoke to him made him feel like she was 30 years old. Mr. C. testified that she told him that when her grandmother thought she was in the outhouse she was actually by the river with boys picking mangoes. She told him she had “an Indian fellow” and she came home once to find him having sex with another girl so she left him and got friendly with a “black fellow”. That was her last boyfriend. I note Mr. C. did not say that S. told him that she had had sexual intercourse with these boyfriends. Mr. C. said that he found it difficult to believe everything he was hearing in the trial about S.’s lack of capacity because when S. feels comfortable around you she will tell you everything that you need to know.

[84] There was evidence from S.’s mother and Mr. C. about a time when S. complained about her mother and the police were called. Mr. C. testified that S.’s mother spoke to him about this. It was his evidence that she told him that it was a man that S. wanted, like a boyfriend, and that was why she was behaving like that. S.’s mother told Mr. C. that she had only given S. two little lashes on her hand and that S. reported this to the police. Actually the evidence is that S. told a teacher who called police. According to Mr. C. he asked S. in French Creole why she went to the police on her mother and she told him in French Creole “big people doesn’t raise their hands on big people. Big people raise their hand on little children. That’s why I went to look for police for her so she don’t raise on me anymore.” He said this is why he considered S. was a “big woman for true”. He explained that he used to hear similar language about being a big woman, don’t put your hand on me when his parents fought.

[85] Mr. C. testified that S.’s mother told him not to give S. food or do anything for her and for two weeks she didn’t do anything for S. According to Mr. C. he was the one taking care of her and made sure she went to school every day. He said that the only thing he had to do for S. was to check the line at the back of her head for her two cornrows to make sure they were straight. Mr. C. also talked about a day during this two week period when S. told him that she had cooked some noodles and that she had left him some. He was there alone with her. Mr. C. also testified that he showed S. how to use the computer to find a particular website. She told him that she got it and was able to do it. This is also why Mr. C. said he was surprised to hear the experts testify that S. was functioning on such a low level.

S.’s Life in St. Lucia

[86] Although S. gave some evidence about her life in St. Lucia at the trial, as I will come to, I did not find her evidence reliable. Most of the evidence therefore comes from E.

[87] S. and E. lived with family in a rural area of St. Lucia. According to E., in St. Lucia S. could walk down the hill and go to the store at the bottom of the hill if her grandmother sent her to the store with the exact change. She could also visit E. on her own because she was living just down the street for some of the time with their older sister.

[88] E. did not know of any boyfriend or special male friend that S. had while living in St. Lucia. She didn’t even know if S. understood the term boyfriend. S. never gave her any indication that she understood what romance was. E. did fairly admit, however, that it was possible that S. had a boyfriend in St. Lucia and that she wouldn’t have known about it. M.D. testified that she was never told by her mother that S. had a boyfriend.

The Evidence Concerning S.’s Ability to Speak English versus French Creole

[89] The question of what language S. spoke in St. Lucia and at the material time became an important issue in Mr. C.’s defence. As I have said, he testified that when he spoke to S. in French Creole they were able to have good conversations and she seemed much older; as old as a 30 year old woman. Mr. C. testified that S. couldn’t understand English at the time. If he started speaking English to her she would bend her head down or get up and walk away. They spoke together in French Creole because she knew that language. They would put a little bit of English in between. Mr. C. did distinguish Patois from French Creole which he said was one of the highest levels of Patois in St. Lucia. However to avoid confusion, I will refer to this other language only as French Creole, which is the way Mr. C. usually referred to it.

[90] According to E. in St. Lucia the older people spoke French Creole but the younger people spoke English. Their grandmother’s mother tongue was French Creole but she also spoke English. English was the language in school. E. testified that when S. was living in St. Lucia she spoke French Creole with her grandmother and she spoke English with E. According to E. she never fully spoke either language and would jumble up both languages when she spoke. E. did admit that S. spoke better in French Creole when they were living in St. Lucia but she always spoke to her in English as did their older sister. She denied that S. spoke primarily French Creole in St. Lucia.

[91] M.D. does not know much about S.’s time in St. Lucia or what language she spoke primarily. When she called she would speak to mostly to her mother and E. who told her about S. When M.D. did speak to S. on the phone she spoke English. When M.D. lived in St. Lucia, growing up she spoke Patois which she said is the same as French Creole, and English. She testified that most people in St. Lucia speak English and Patois. Her mother spoke Patois and English but used to speak more English because she used to work with the government in St. Lucia where English is used.

[92] E. testified that it was only once she and S. came to Canada that S. was able to better her English. English is the only language that they have spoken since coming to Canada; E. hasn’t heard S. say a single word in French Creole since they came to Canada. The evidence is clear that when S. came to Canada her Mother spoke to her in English since at that time M.D. did not speak or understand French Creole. According to E., S. is now better in English and she understands English better than French Creole.

[93] M.D. testified that she spoke English to Mr. C. Mr. C. confirmed this although he said that he would always put a little piece of Patois in. He also spoke English to E. M.D. saw Mr. C. speaking with S. but didn’t know what language they were using. She denied ever being present when S. and Mr. C. were talking to each other.

[94] Ms. Wadon spoke to S. in English and she made no note of any difficulty in speaking to S. in English. She was not aware of any other languages that S. used or that S. spoke French Creole. When asked if she would have changed her approach to teaching S. if she’d known she had ability in another language, Ms. Wadon said that there was no indication there was a language issue in the information she received. Furthermore, the program at the Haney Centre was very hands on and a lot is done by demonstration. There is not much in the way of a language component and they use a lot of different strategies in teaching.

[95] As I will come to, neither Ms. Mahoney nor Dr. Temple observed any language problem with S. when they spoke to her in English.

The Expert Evidence Concerning S.’s Intellectual Ability

Evidence of Laura Mahoney

[96] Laura Mahoney is a psychological associate and has significant experience in conducting psychological assessments in order to determine learning and behavioural exceptionalities and programming needs. She was qualified as an expert to give opinion evidence with respect to her assessment of S., the various tests that she administered and the results of those tests.

[97] Ms. Mahoney prepared a psychological assessment report for S. in April 2008 which was also introduced into evidence with the consent of Mr. Dwyer. It was done so she could provide proper programming for S. while at school and for transition into the community so she had proper support. S. had been placed in a developmental disability program because those around her could see she could not function in a regular program. She had been placed as a visitor right away and the assessment was being done to confirm her placement. She was getting older and would not be able to stay in school much longer. Ms. Mahoney’s period of contact with S. was between March and April 2008. She saw her a number of times over different days both with and without her mother for a total of about three hours. This was less than most assessments of this nature since S. was unable to do all of the activities required in the tests.

[98] Ms. Mahoney testified that S. consented to the assessment but she would not say that she would have been able to “consent” in the sense of being able to understand and appreciate what the service was and whether she should receive it.

[99] The results of Ms. Mahoney’s testing found S.’s intellectual skills to be very limited; in the Moderate range of Developmental Disability, well below the 1st percentile. All areas of skills were in this range including language and communication, visual-spatial skills, judgement and reasoning, and mental processing speed.

[100] Ms. Mahoney reviewed the various tests that she administered to S. including:

(a) Wechsler Adult Intelligence Scale – Third Edition (WAIS), which uses various tests to measure intellectual ability. S.’s overall IQ score was 46 which placed her below 0.1% of the population; below the lowest person. She was not always able to find out S.’s minimum level because she couldn’t go that low. Her verbal and non-verbal performances on this test were very similar.

(b) Developmental Test of Visual-Motor Integration, (VMI) which used very little language beyond the initial instructions. Ms. Mahoney believed that S. understood the exercise which involved copying and drawing a line figure such as a block but she scored below the lowest score for this test, below the .02 percentile.

(c) Wechsler Individual Achievement Test – Second Edition (WIAT) which measure academic skills namely reading, writing, math and listening skills. Her results were below the .01 percentile.

(d) Peabody Picture Vocabulary Test, - Third Edition, which tests how well a person understands the English language. For example S. was shown four pictures and asked to point to the bus. She understood the test but her score was less than the .1 percentile.

[101] Information from S.’s teacher was also considered. A form completed by S.’s mother was not used due to confusion in the answers given. Social skills were looked at in the context of S.’s adaptive behaviours based on information from S.’s teacher. Socially based on that information S. was quite delayed. According to Ms. Mahoney, if a person is cognitively delayed the person is likely to be socially delayed. S.’s results fit in with the rest of the picture Ms. Mahoney was getting from S.

[102] According to Ms. Mahoney, someone with a moderate intellectual disability who has proper schooling can achieve a Grade 2 level in terms of academic skills. In S.’s case she was at the kindergarten level or even lower, which Ms. Mahoney attributed to the fact she had not learned certain things, such as her alphabet because of her minimal schooling. Her scores were therefore what she would expect given S.’s situation.

[103] Ms. Mahoney did not give any age norms for S. in terms of her intellectual ability. She said that the WAIS test does not have tables supported by research to convert to age norms and so she could not say S. was at a four year old level. Furthermore, Ms. Mahoney is of the opinion that this is not an accurate way to view a person as in her view an adult who is age four cognitively has a very different style and way of behaving than a typical four year old.

[104] Ms. Mahoney testified that S. could learn to do things like self care; for example brushing her teeth or bathing, primarily on her own and she would be able to make a sandwich but she would not be able to cook a meal. She would not likely be able to go on the TTC by herself or even go to a store. Ms. Mahoney’s impression was that it might be safe for S. to be at home alone.

[105] Ms. Mahoney did not talk much with S. apart from the initial intake interview. In class she saw that S. was generally a quiet observer. She said that it was quite possible that in a social context S. would be able to express herself more fully.

[106] All of the tests were administered in English. In Ms. Mahoney’s view S. was able to understand English but her language development was poor and her understanding of concepts was poor. She believed her first language to be English but picked up on what she called a minor dialect issue. Ms. Mahoney said there was a minor difference in the way S. spoke in terms of pronunciation or phrasing that did not prevent her greatly from expressing herself. Her mother told her about S.’s French Creole influence and she knew it was a form of French. She knew that S. was from St. Lucia and that she had only attended school for about one year when she was five or six years old. Her mother told her that S. spoke English. Ms. Mahoney had no sense that English was S.’s second language. She relied on what she was told and from her own views in working with S.

[107] Had Ms. Mahoney known that S.’s first language was French Creole or if S. was using some words in that language and others in English, she would not have changed her tests. If there had been an issue with language, Ms. Mahoney would have done multilingual assessment to establish a baseline. However, when she was working with S. there was no substitution of words and it was clear to her that English was her primary language as S. presented as a student fluent in English. She did not present as an ESL student.

[108] Ms. Mahoney testified that if language was the only issue, in her view S. would have been much stronger in the non-verbal tests. She would also have been better in adaptive skills. Ms. Mahoney testified that in interpreting the assessment results she took into account S.’s newcomer status and limited schooling but in her view the results were not due to these factors. Ms. Mahoney did not make a provisional diagnosis in this case as in her view she was very certain of the results. This is not a case where the future might tell a different result.

Evidence of Dr. Valerie Temple

[109] Dr. Temple is a clinical psychologist and is currently the Professional Practice Lead for Psychology in the Adult Program at Surrey Place Centre where she has worked for the past 15 years. She is very well qualified in conducting psychological assessments, diagnosis, and treatment of adults with developmental disabilities. She is also one of the psychologists for the video-conferencing team that provides assessment and other services to the remote northern Ontario communities and as such has experience in assessing individuals from very different cultural backgrounds whose first language is not English. Dr. Temple was qualified as an expert in the ability to administer various psychological tests, interpret the results and give opinion evidence with respect to the cognitive abilities of adults who have a developmental disability particularly in the moderate range.

[110] S. was referred to Dr. Temple by the Crown for an up-to-date psychological assessment in order to gain a better understanding of her current abilities. The assessment was done on March 4, 2011 and Dr. Temple’s report of that date was also introduced into evidence with the consent of Mr. Dwyer.

[111] Dr. Temple relied on the past assessment by Ms. Mahoney and records provided by the Toronto District School Board (TDSB). She knew that S. was born in St. Lucia and understood that her first language was English. Dr. Temple spent two hours with S. and also met with her mother for about thirty minutes. This is typical for this type of assessment.

[112] Dr. Temple administered the following tests: 1) Reynolds Intellectual Assessment Scales (RIAS); an IQ test that tests cognitive ability in both verbal, non-verbal and memory areas, 2) Peabody Picture Vocabulary Scale – IV (Peabody) which tests how well a person understands the English language, 3) Developmental Test of Visual-Motor Integration (Visual-Motor), which assesses the coordination of visual and fine motor control, and 4) Emotion Cards, a test of social interaction with pictures of people with different facial expressions and situations that were shown to S. to see how she understands emotions and facial expressions.

[113] Dr. Temple also used the Vineland Adaptive Behaviour Scales (Vineland) test which is essentially a caregiver report completed based on questions asked of S.’s mother. The information provided by S.’s mother in the Vineland test was consistent with the other test results. Dr. Temple testified that S. even got lost walking to the washroom and back when the washroom was only 15-20 feet away from the room where she was being tested.

[114] Dr. Temple testified that she used all of these tests as they test for different things and that when she interpreted the results of these tests she used what she described as a “triangulation method”. This involves averaging out all of the scores for the many tasks completed within each test and considering all the scores on these tests to see if they are similar. If they are not, which was not the case for S., it might mean there is an issue to be considered further with respect to the results. This method in her opinion strengthens the reliability of the results from these tests. When Mr. Zambonini asked about the reliability of the results if English was not S.’s first language, Dr. Temple responded that this was another purpose in administering many tests as some, for example the Visual-Motor test, are not language based. One would expect if there was a language problem that the scores for the language based tests would be depressed and the others would not be. If there had been a language deficient she would have caught it.

[115] Dr. Temple also testified that she talked to S. and she demonstrated things as well. The RIAS test is minimally verbal as compared to the Wechsler which was administered to S. by Laura Mahoney. The Visual–Motor test does not use language. Dr. Temple testified that in her opinion S. could understand what she was asked when given instructions with respect to the various tests. Her difficulties were not related to the language that she spoke in St. Lucia. Each of the tests where language was involved S. was able to answer the first question or more correctly which, according to Dr. Temple, meant that she understood the principle of the test.

[116] In cross-examination Dr. Temple admitted that if she had known that S. spoke French Creole for half or more of the time that she was in St. Lucia she might have given her more non-verbal tests but she did not agree with the proposition that there was a fundamental problem with her results if S. was more comfortable with French Creole. She testified that her results were very consistent and if language was a problem for S. she would expect an inconsistency in the verbal and non-verbal test results; Dr. Temple would have expected her language scores to be depressed but not the other tests. Large deviations could suggest a language issue. In Dr. Temple’s opinion her test results are accurate because they show no major deviation. Not only were her results from the various tests that she administered consistent, the assessment done by Laura Mahoney of the TDSB shows the same range of scores and that S. is likely functioning in the moderate range of abilities.

[117] Dr. Temple’s report concluded that S. is functioning at the level of a three to five year old child:

Results found Ms. A. [S.] has significant and substantial deficits in her overall intellectual skills. Her language, visual-spatial, and memory skills all fell in the Moderate range of Intellectual Disability …below the 1st percentile for her age. Age-equivalent scores for all areas assessed were in the 3 to 5 year range. This means her thinking, understanding, and reasoning skills both verbally and nonverbally are similar to a normally functioning individual of 3 to 5 years. Daily living skills were also found to be extremely low. Ms. A. [S.] requires prompts and assistance to perform most daily tasks including self-care, domestic chores, telling time, using money, and managing health-medical needs.

[118] In Dr. Temple’s opinion S. would be able to understand concrete things in the present based on prior experiences and she would be able to accurately describe concrete reality in the moment but according to Dr. Temple, S.’s reality was more like a child’s reality. Dr. Temple testified that S. would not be able to understand abstract concepts and that this is generally known about people with this level of disability based on previous research and test results and having worked with individuals at this level a lot before. She gave as an example that if someone at a moderate level of intellectual ability had never experienced Christmas before they would not be able to understand the concept of it. Furthermore most of their understanding is in the present. They are not able to abstract into the past or the future.

[119] Dr. Temple admitted that she had not seen S. in a social situation so her ability to correctly assess that was limited. She wouldn’t say that S. would be able to understand the concept of romance but she was not assessing her for that. When Dr. Temple used the emotion cards she did not explore the idea of romance or relationships. She didn’t question her with respect to her understanding of sexual interaction or do any tests to test her understanding of sexuality. Dr. Temple acknowledged that S. is an adult physically. She could have sexual desires and sexual thoughts. This is not something she explored with S. She could say however, her actions and understanding would be at a very unsophisticated level as in a preschooler. She would be able to understand the concept of a boyfriend insofar as someone with a four year old vocabulary could. If S. had a boyfriend relationship in the past Dr. Temple presumed that she would be able to discuss it. She could experience liking someone. Dr. Temple’s conclusion from using the Emotion Cards was that overall S. had great difficulty with this task and that in her opinion she has a very low level of social and emotional understanding for her age.

[120] Dr. Temple testified that it seemed impossible to her, based on S.’s test results, that in speaking French Creole she might come across as a 30 year old woman. She said this was very, very unlikely in her opinion to suggest that in a second language such as French Creole S. could come across and speak at the level of a normal adult. Dr. Temple also denied the suggestion that S. would be more sophisticated if she was around people she was more familiar with. She testified that the purpose of an IQ test is to be able to extrapolate and make assumptions about abilities that have not been tested. Statistically it is very likely that a person’s ability all falls in the same range as extrapolated from the results of the array of tests that is done.

[121] Dr. Temple denied the suggestion that her report was biased towards S.’s educational needs. She said that she put very little emphasis on academics as she thought it was more helpful to know what S. could do in everyday life. Someone with moderate disability is unable to live on their own and needs to be in a group home with 24 hour support. The person can’t manage personal care and defers to other adults for difficult decisions, making the person very vulnerable. If the only issue is that a person can’t speak English, that person should still be able to boil water, count money and get on a bus. In Dr. Temple’s view S. would not be able to use a stove or a computer. She would be able to use the TV and sit by herself and draw and colour. To have a conversation with S. you would need to talk about things that she is familiar with.

[122] Dr. Temple testified that S. appeared to be someone with an intellectual disability. She acted somewhat immaturely as she drew a picture that was introduced into evidence. It shows stick figures one would expect of a child in kindergarten. She was attached to her mother and was acting younger than her expected age.

[123] Dr. Temple did not assess S. for her understanding of romance or sex. She was asked what she thought someone like S. would understand about sex and its possible consequences. According to Dr. Temple if S. had been exposed to sex before either through her own experience or seeing people having sex on television, she might know that was sex and understand it in a concrete manner but she would not be able to understand future consequences and connect it to pregnancy or disease. In Dr. Temple’s opinion S. would probably not be able to understand that she might have a baby as a result of sex and she would not be capable of understanding that she could get a disease or the concept of possible diseases at all. There could be a partial understanding; for example a family member had been pregnant and she had been told two people had sex, but understanding the physical changes and labour would be all too difficult for her to understand without personal experience. In Dr. Temple’s opinion S. would not have a full appreciation and knowledge of the act of sexual intercourse and its consequences. Any understanding would be at the level of a pre-schooler.

The Evidence of S.

[124] S.A. testified at the end of the Crown’s case. Neither counsel challenged her capacity to testify as they both wanted to hear her give evidence. It was agreed that in doing so they reserved their right to argue that her evidence should be given little or no weight. In order to make S. comfortable, she testified with a screen so she could not see Mr. C. A support worker was sitting next to her. S.’s evidence started very informally with S. showing me a considerable number of pictures that she had drawn and coloured the preceding day and that morning while waiting to testify. As I will come to, she was asked questions about her pictures by both Mr. Zambonini and me.

[125] After answering questions about the pictures, S. was asked if she would promise to tell the truth and she answered that she promised to only say the truth. She then watched her videotaped statement. She said that she was telling the police the truth in the video and her videotaped statement was admitted pursuant to section 715.2 of the Criminal Code. Mr. Dwyer took no issue with respect to its admissibility.

[126] As I will explain, very little information was obtained from S. during the course of her examination at trial despite the fact that counsel made every effort to be fair and gentle with her in their questioning of her. Although, for the reasons I will come to, I found that her trial evidence was not reliable, the fact that I was able to observe S. for an extended period of time interacting with me and counsel was very helpful in understanding the reports of the psychologists. In fact, having already heard the results of the assessments, S. presented as even younger than I had expected.

[127] When Mr. Zambonini took S. through the pictures she had drawn and coloured it became immediately apparent that despite S.’s outward appearance, which is consistent with a 24 year old young woman, or possibly someone even a little younger, that she was extremely childlike. Her manner, her pictures, her colouring and printing and her explanation of what she drew and wrote made this absolutely crystal clear. For example, on the first drawing, she wrote her name as “A.S. [last name spelled correctly but printed first, first name misspelled]”. The drawing of two girls are somewhat more developed than stick figures but have either too many or too few legs or arms and are coloured very primitively in one colour. When I asked S. what the sentence said that she printed on the back of the first picture, which reads “How he God jse yelike you like me liken”, S. told me that it meant “you [referring to me] are the best”. This, of course, is nothing close to what she wrote and although some of the words she printed are legible and correctly spelled others are not. Again she had not printed her first name correctly on this page. When she was asked questions about other pictures she had drawn, she was not always clear on what the picture was of. For example, when she was shown a picture of a seal with a ball on its nose she could only say it was an animal that goes in the water. When shown a picture of what appeared to be a bird and was asked what it was, S. flapped her arms and needed to be prompted.

[128] When Mr. Zambonini commenced his examination in chief he asked S. who C. was and whether she remembered him or not. She shook her head and said “no” repeatedly. She said she didn’t remember what sex is or where babies come from and she didn’t remember if she had been pregnant. She did remember living in St. Lucia. When asked what language she spoke there she answered Spanish and when asked what language they were speaking that moment she said she didn’t remember. She said she did not know how to speak French or French Creole. She seemed to know some of her numbers and was able to count from 21 to 30 correctly. She knew some of the alphabet in order but missed many letters.

[129] After Mr. Zambonini received a number of answers either in the negative or that S. did not remember, he switched gears to try to ask her questions about things that she knew or liked. She knew about Big Bird but did not know what colour Big Bird is. When asked if she thought she was a “big woman” she said she was taller than her mother and that she thought she was a big woman. A little later in the examination in chief she was asked if she knew why she was here and she said “I want to say the truth and the lies”. At this point she started to give some information about Mr. C. She said that “he hold me like this and he like this” which she demonstrated and confirmed she was referring to C. I put on the record that she showed me a hand over her mouth. She said C. told her he would bring her to Niagara Falls. He told her he just wanted to listen to her music. When asked again if she remembered anything happening with C. she repeated numerous times “I don’t remember”. She gave the same response when asked if she knew anything about C. “making babies”. She did remember being sick and bringing up all the time and feeling weak. She testified that the doctor gave her medication and she felt better. She did not remember ever having to go to the hospital.

[130] Mr. Zambonini was not able to obtain any reliable information from S. about Mr. C. or the alleged sexual assault. Although I am not able to determine why this was the case, S. seemed quite comfortable in court with me and counsel although she was obviously aware that Mr. C. was behind the screen as she pointed in that direction on at least one occasion. I had no sense at any time that S. had any appreciation of being in a courtroom or a witness in a trial. She laughed on occasion and smiled a lot. Her behaviour was consistent with a happy, young child.

[131] S. did not appear to have any animosity towards Mr. Dwyer and I do not believe that she understood his role or the fact that he is a lawyer and represented Mr. C. The only thing that did change is that she became less verbal and responded most times by nodding yes or shaking her head no. Some of her answers were quite confusing. When asked if she was the youngest and her two sisters were older she said she was the oldest which is clearly not the case. She said her mother had two twins which is also not the case and even that she had two kids. When she did respond many of her answers were unintelligible. Although on occasion she would search for a word, for the most part when she spoke her sentences simply didn’t make any sense. It was not clear if she understood the questions Mr. Dwyer asked her about things “back home” referring to when she lived in St. Lucia. She said, for example, that it was cold back home and that it was not cold here in Canada. She said there was snow in St. Lucia and she would make a snowman.

[132] Mr. Dwyer asked a number of questions directed to S.’s ability to speak French Creole. She did say that she spoke Creole and English in St. Lucia. She said she spoke to her grandmother in Creole. At trial, when asked how to say simple words or phrases in Creole she simply repeated the word or phrase in English. When Mr. Dwyer spoke short phrases to S. in what I understood to be French Creole, she appeared to understand him.

[133] S. was asked some questions about her life in St. Lucia. She testified that her grandmother would give her money and she would take the bus to the gas station to buy gas for the stove. She then said however, this happened in Toronto. When asked again she said her grandmother sent her to the store to buy tea and milk.

[134] In response to some of the things Mr. Dwyer mentioned S. answered “god knows the truth and the lie”. When asked if she knew who C. was she said she didn’t want to see him anymore. S. did respond affirmatively to Mr. Dwyer that she knew when she came to court she was going to talk to a judge and to the Crown and to him. When asked if she knew she was going to talk about C. she said he knows “he do something wrong”. She shook her head no when asked if she thought when she first met C. that he was a nice guy. Many of her answers to Mr. Dwyer’s question were “god knows better”.

[135] Mr. Dwyer tried repeatedly to ask whether in the past when C. was living in the basement apartment at Thistledown, S. spoke to him. Her answers were always in the present; “I don’t talk”. She denied that she and Mr. C. were ever friends. She said that she doesn’t talk to people from back home because they are bad people “against the law”. At some point she told Mr. Dwyer that “he pay after what he did to me, that he will go to jail for that”. At this point she was pointing to Mr. C. At one point she said she didn’t want to see him anymore or argue with him or talk to him and that “he’s not my type”. When she said C. was “not my type” she said she meant that “I don’t know him from adults”. Only her mother is her type.

[136] S. denied that she was ever at home by herself. However, when asked who was home with her when her mother was working she said nobody else, just her. She said she didn’t know what a boyfriend or a husband is. When asked if she was a little girl S. shook her head no. When asked if she was a woman she nodded yes. When asked if she did not like to be treated like a little girl she said no. When asked if her mother sometimes treats her like a little girl she appeared to nod yes but her answer was that she was good to her.

[137] At some point when Mr. Dwyer was asking S. if her mother told her to stay away from C. she said he held her behind her back and took off her underwear and that when she was in the shower he would just come and look at her. She then agreed with Mr. Dwyer, in response to leading questions, that once when she came out of the shower she had a towel around her and that C. was sitting in the hallway. She was going to put her clothes on. She said C. was in the room talking about her and her mother. She didn’t specify which room. She said that C. opened the towel and looked at her. When Mr. Dwyer clarified she agreed that C. was in the hallway. She then said that it was “against the law” and showed how C. had held her with her hands above her head and behind her and her mouth covered with her right hand. She agreed that C. didn’t move from the chair and that she walked over to the chair but she denied having sex with C. She did not remember rubbing C.’s chest, saying she wanted to marry him or saying that she wanted to go to Niagara Falls.

[138] The next day when Mr. Dwyer’s cross-examination of S. continued and he reminded her that the day before they had talked about C. she said “I don’t want to hear this”. When asked if she was going to try to answer she said “no”. When asked if she liked being in court she said “no”. S. denied showing C. her passport. She denied they were having an argument about how old she was or that she wanted to prove to him that she was an adult. She said she didn’t show him the passport because “I don’t talk to him”. She denied showing C. her school card. She denied knowing what sex is or having sex with C. one time.

Analysis

[139] I now turn to my analysis. Since Mr. C. testified, the principles set out in the decision of the Supreme Court of Canada in R. v. W.(D.)[^1] apply. I must acquit Mr. C. if I believe his evidence or, even if I do not believe his evidence, I am left in a reasonable doubt by it. If I am not left in doubt by his evidence, then I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence, of his guilt. In my analysis, I am not bound by the strict formulaic structure set out in W.(D.), but rather must adhere to the basic principle underlying the W.(D.) instruction that the burden never shifts from the Crown to prove its case beyond a reasonable doubt.[^2]

[140] In considering the evidence, I am entitled to believe all, some, or none of each witness’s evidence. Further, in assessing the evidence of Mr. C., I am entitled to consider it in the context of all of the other evidence.[^3] However, I must remind myself that this is not a credibility contest.[^4] W.(D.) prohibits me from concluding that the Crown has met it burden simply because I might decide to prefer the evidence of the Crown witnesses to that of Mr. C.[^5]

Credibility Assessments

Mr. C.

[141] Mr. C. testified in a forthright manner and he was fair with Mr. Zambonini in cross-examination. He co-operated with the police and although there were differences in his account of the one occasion when he admits having sexual intercourse with S., between what he told police and his evidence at trial, I did not consider those differences to seriously impact his credibility as a witness. However, for reasons I will come to, in considering the evidence as a whole that I do accept, I have found that to some extent Mr. C. exaggerated his evidence and some of his evidence is simply incredulous. However, many of the factual conclusions I have come to are based on some the evidence of Mr. C. or at least accepting that some of his evidence could be true.

E.

[142] I found E. to be a credible and reliable witness. She was fair in her responses to Mr. Dwyer in cross-examination and gave her evidence in a straightforward manner. She was my most reliable source of evidence as to S.’s life in St. Lucia. The only evidence from E. that I do not accept is her evidence that S. was rarely, if ever, left alone. Given what E. and her mother did for work and church, and given E. moved out of the apartment in February 2009, I find that impossible. Otherwise, however, I accept E.’s evidence.

M.D.

[143] As I have already referred to in cross-examination M.D. said that S. told her C. had forced her to have sex. Although the timing of when S. allegedly told her this is not clear, there is no dispute there is nothing in her statement to police about this. The fact that M.D. alleged that S. made such a detailed statement and her failure to disclose this until the day she was about to give evidence is of grave concern. I do not believe S. ever told her mother this. First of all, if she had, I am sure M.D. would have told the police this earlier as it is very important evidence. Secondly, given all of the evidence and my own observations of S., I do not believe that she would have been capable of expressing herself to her mother in this much detail and in these words. This conclusion, of course, seriously undermines M.D.’s credibility as a witness. I also find that in other respects, as I have already stated, her evidence was exaggerated in order to distance herself from Mr. C. To the extent her evidence was at odds with the evidence of E. and/or Mr. C., I prefer their evidence to the evidence of M.D.

S.

[144] Overall S. presented as an attractive happy young woman; smiling and laughing a lot. She seemed comfortable in the courtroom although she was restless and not able to sit still. There was nothing from her demeanour that suggested she was not telling the truth although she was certainly reluctant to answer questions about Mr. C. In my view this was largely because she could not distinguish the past from the present and she clearly did not want to have anything to do or say about Mr. C.

[145] M.D. testified that with S. it is hard to tell if she is telling the truth or a lie. She did not explain that comment. There was some suggestion in the evidence that S. made a false allegation about her mother hitting her but as I have reviewed, that allegation was basically true in terms of what M.D. admitted to Mr. C.

[146] Based on S.’s statement to police, although she stated it indirectly, she had sexual intercourse with Mr. C. on many occasions and she did not want to, or as she put it, she did not want to “make babies”. Of all the evidence that S. gave, her statement to police seemed the most reliable. However, given the other evidence I heard from S., overall I find that I cannot rely on her evidence. Overall, given S.’s developmental disability she clearly has trouble expressing herself, at least in English and given the many statements that she made particularly in her evidence at trial, that are clearly not correct factually, I find that I cannot rely on any of her evidence.

[147] At trial S. did give limited evidence and gesture on a couple of occasions in a manner that is consistent with the evidence from her mother as to what she allegedly told her about the sex being forced. I have already given my reasons for why I do not accept the mother’s evidence in that regard. I am concerned that M.D. may have talked to S. about this and may have tried to influence her to give this evidence at trial, although she was only able to hint at this with gestures. I have no reason to believe that S. would deliberately lie but for these reasons I find that I cannot rely on the little evidence S. gave to this effect at trial.

The Other Witnesses

[148] There was no suggestion that the independent witnesses were not credible although some of their findings were challenged by Mr. Dwyer. Although Dr. Temple was retained by the Crown, I found her to be professional and independent. I found the evidence of all three independent witnesses to be credible and reliable. Mr. Dwyer did not suggest otherwise.

The Relevant Law

[149] Counsel did not disagree on the relevant law. Section 273.1(2)(b) of the Criminal Code states that no consent is obtained where the complainant is “incapable of consenting to the activity”. Section 273.1(1) defines consent as the “voluntary agreement of the complainant to engage in the sexual activity in question.”

[150] Section 273.2 of the Criminal Code states:

It is not a defence to a charge under section 271 … that the accused believed that the complainant consented to the activity that forms the subject matter of the charge, where

a) the accused’s belief arose from the accused’s ... (ii) recklessness or willful blindness; or

b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

[151] In R. v. A.A.,[^6] the Court of Appeal reaffirmed that capacity is a factual issue (para. 13) and that save for exceptional circumstances a requirement for expert testimony in assessing a special needs complainant’s capacity to consent to sexual intercourse is not necessary (at para. 15).

[152] In R. v. R.R.[^7], the Court of Appeal implicitly approved of the reasons of the trial judge with respect to the issue of capacity as follows:

The issue of whether a person did or did not consent to a particular action or event is a question of fact to be determined in each individual case. It is not sufficient to simply determine whether an individual said “yes” when asked if they would submit to or engage in a particular activity. It must be determined whether that individual made such a decision of their own free will, fully aware of or apprised of the proposed activity and its consequences. (at para. 44)

[153] The court also implicitly approved of the trial judge’s definition of consent as “the voluntary agreement to participate in an act, having full appreciation and knowledge of the consequences. (at para. 51)

[154] The court held (at para. 52) that capacity is integral to consent and that the extent of that capacity depends on the circumstances of each case. At para. 57 the court stated as follows:

The appellant argued that before guilt is found based on an incapacity to consent there should be some evidence to show with certainty that a person who is severely or moderately mentally disabled does not understand the sex act. This distorts how the issue of consent is to be approached. Under any circumstances, there is responsibility, prior to engaging in sexual activity, to take reasonable steps to ascertain consent: Criminal Code section 273.2(e). But in circumstances such as these, where one of the participants has demonstrable mental limitations, the threshold of responsibility escalates exponentially. This is not to suggest that persons who are developmentally disabled cannot consent; rather, it requires that prior caution be exercised to avoid the exploitation of an exceptionally vulnerable individual. The issue in any event was not the capacity of persons with developmental disabilities to consent to sexual activity; rather, the issue was the capacity of this particular complainant to consent to sexual activity with the appellant and whether he had an honest but mistaken belief in that capacity.

[155] At para. 60 the court adopted the words of Justice McLachlin in R. v. Esau,[^8] as follows:

The term wilful blindness connotes a deliberate avoidance of the facts and circumstances. It is the legal equivalent of turning a blind eye, of not seeing or hearing what is there to hear or see. It is the making of an assumption that the complainant consents without determining whether, as a matter of fact, the complainant consents. Blindness as to the need to obtain consent can never be raised by an accused as a defence … [emphasis in original]

Did S. have the capacity to consent to sexual intercourse with Mr. C.?

[156] In essence, Mr. C.’s position was that S.’s only problem was that she was a “little forgettable” and that she sometimes acted like a child if he did not bring her what he promised. He felt that when they had good conversations in French Creole that she was like a 30 year old woman. If I accept this evidence or if this evidence raises a reasonable doubt, then I must find that S. had the necessary capacity to consent to sexual intercourse or at least Mr. C. had an honest but mistaken belief that she did.

[157] However, I do not accept this evidence from Mr. C. Not only is it contradicted by some of his own evidence, it is completely at odds with what I observed of S. in court and the evidence I accept from the two expert witnesses and Ms. Wadon.

[158] Dealing first of all with the evidence of Mr. C., each time he testified that S. seemed like a 30 year old woman when they had good conversations in French Creole, he based this not so much on the type of conversation they had but rather based on what he says S. told him about her life in St. Lucia. In particular he referred to the fact that she told him that she would be out without her grandmother knowing and that she had had boyfriends. He did not suggest, for example, that he had conversations with S. about current events or any other subject that one might expect to talk about with someone of her chronological age. His conclusion that she was like a 30 year old based on what he testified that they talked about is incredulous in my view and really makes no sense. Furthermore it is at odds with other evidence that Mr. C. gave which was to the effect that he saw S. like a little child at least until she proved to him that she was her chronological age by showing him her passport.

[159] Mr. C. admitted that he called S. a little child in French Creole and that she acted like a 3 or 4 year old on occasion. Although he limited that to times when she did not get what he had promised her, that evidence tied to his disbelief of S.’s stated chronological age and his repeated references in his evidence to her having to “prove” to him what her age really was strongly suggests that he did not believe that she was, in fact, 20 until she showed him her student ID and then her passport. In fact he admitted that he did not believe she was her stated chronological age until she proved it to him. I will explore this further when I consider whether or not Mr. C. had an honest belief that S. had capacity to consent to sexual intercourse.

[160] The Crown was not obliged as a matter of law to call expert evidence. However, the fact that I heard from two well qualified experts; Ms. Mahoney and Dr. Temple, was of great assistance. They both independently diagnosed S. in the Moderate range of Intellectual Disability and well below the 1st percentile, based on well accepted tests they personally administered. The opinion in particular of Dr. Temple was that this means S.’s thinking, understanding, and reasoning skills both verbally and nonverbally are similar to a normally functioning individual of 3 to 5 years. This is very compelling evidence in support of the Crown’s position that S. did not have the capacity to consent to sexual intercourse with Mr. C.

[161] I have considered the various challenges that Mr. Dwyer made of this evidence in cross-examination. The principle one was that the tests were conducted in English and that French Creole was in fact S.’s primary language and she did not understand English very well. Even accepting that in St. Lucia, French Creole was S.’s primary language, there are a number of reasons why I do not accept that this issue undermines the opinions of Ms. Mahoney and Dr. Temple:

(a) First of all, neither Ms. Mahoney nor Dr. Temple observed any issue with S. speaking English at the time they conducted their tests. Surely if French Creole were her primary language, and she was unable to speak English properly S. would have used some words in French Creole, particularly for the assessment done by Ms. Mahoney. Apart from noting a minor dialect there is no evidence that she did. Although I accept as E. testified that S. may have been more comfortable in speaking French Creole while in St. Lucia, once she arrived in Toronto in February 2007 she spoke English both at home and at school. It is not surprising that Ms. Mahoney picked up a dialect issue when she tested S. a little over a year later and that Ms. Wadon did not notice a language issue 1 ½ years later. Ms. Mahoney certainly was familiar with students who presented with English as a second language and there is no reason to believe she would not have picked up on this had language been an issue. Furthermore, by the time Dr. Temple conducted her assessment S. had been in Toronto for over four years. Although I accept that given her developmental disability S. would have difficulty adapting to a new language, she did speak English to some extent in St. Lucia, certainly with E. and her older sister and apart from the evidence of Mr. C., English is all that she spoke after arriving in Toronto.

(b) Both experts testified that they would have regard to language as a possible issue in interpreting their results and neither considered it to be a factor. As both experts explained, if language had been the only issue they would have expected there to be deviations in the test results between the language based tests and the non-verbal tests. As Dr. Temple testified, had language been the only issue, S. would have performed better in the non-verbal tests. She did not. That opinion makes sense. Surely if S.’s problem was understanding and speaking English, she would have performed better on the non-verbal tests. Furthermore, as Dr. Temple observed, S.’s daily living skills were found to be extremely low and a language issue would not explain why she could not for example safely use a stove. Although Mr. C. suggested that was because of how E. and her mother treated her, Ms. Wadon was of this view even though she was trying to teach S. life skills. I appreciate Mr. Dwyer’s point that even in the non-verbal tests some instruction was provided in English but the necessary task was demonstrated and as Dr. Temple observed, S. was correct in her initial answers. This further supports her conclusion that S. understood the tests and that language was not an issue.

(c) Furthermore, what is striking is that the results from the tests conducted by Dr. Temple once S. had been in Toronto and speaking English for over four years are virtually the same as the results obtained by Ms. Mahoney only a little over a year after S. moved to Toronto using the same or similar tests for assessment purposes. Again, if language were the only issue, given that S.’s English must have improved by the time she was assessed by Dr. Temple, one would expect her to score higher on the tests administered by Dr. Temple. She did not. Furthermore, the similarity of the results done by two different people enhances the reliability of their individual conclusions.

[162] Mr. Dwyer also raised other limitations with the conclusions of each of the experts and their limited ability to assess S.’s ability to socially interact, particularly in French Creole and how she would react in a totally relaxed social situation. Again however, I accept their responses. Ms. Mahoney, relying on information from S.’s teacher concluded that socially S. was quite delayed. According to Ms. Mahoney, if a person is cognitively delayed the person is also likely to be socially delayed. S.’s results fit in with the rest of the picture Ms. Mahoney was getting from S. Similarly although Dr. Temple admitted that she had not seen S. in a social situation her conclusion from using the Emotion Cards was that in her opinion S. has a very low level of social and emotional understanding for her age.

[163] Furthermore, I accept Dr. Temple’s evidence that it seemed impossible to her, based on S.’s test results, that in speaking French Creole she might come across as a 30 year old woman or that S. would be more sophisticated if she was around people she was more familiar with. I accept Dr. Temple’s evidence that the purpose of an IQ test is to be able to extrapolate and make assumptions about abilities that have not been tested and that statistically it is very likely that a person’s ability all falls in the same range as extrapolated from the results of the array of tests that is done. Ms. Mahoney essentially gave the same evidence.

[164] I also rely upon my own observations of S. in the witness stand. I had a considerable period of time to observe her and took no notes so that I could do so with undivided attention. It became quickly apparent to me while S. was describing the pictures, that setting aside her appearance; she was developmentally a small child. It appeared that she could not properly count or say the entire alphabet and although that could be attributed to minimal schooling, she did not know her colours and could not speak in full sentences. Very often her answer to a question was only a nod, yes or no. She also seemed to be primarily in the present moment which is consistent with the opinion of Dr. Temple. On her videotaped statement, when the police asked about C., she kept saying that she didn’t talk to him anymore because her mother had told her not to. It seemed impossible for her to think about what had happened before her mother had told her this and whether or not she had talked to him or been with him earlier. The same was evident at the trial. Although she was able to talk a little about her time in St. Lucia her evidence about it was clearly wrong and she did not appear to understand questions that tried to elicit how she felt about Mr. C. back in the spring of 2009. I do not accept Mr. Dwyer’s submission that S. was fairly mature in how she engaged with him in conversation during his examination of her.

[165] I conclude that at the material time, S. was functioning intellectually like a child between the age of three and five. I appreciate what Ms. Mahoney said, that there would be differences between her conduct and a three to five year old child, and in this regard, the biggest difference based on the evidence of Mr. C., would be that S. liked him and wanted to have sex with him. That evidence is plausible in my view. S. was sexually mature and although Mr. C. is considerably older than her, he was a man who came into her life who she liked at the time. I accept Mr. C.’s evidence that he was a friend to S. although I make no finding as to his motive. S. must have been lonely, especially after E. moved out given that her mother had so little time for her. The only consistent activity she had was going to school. She may well have become infatuated with Mr. C.

[166] Although given the statement S. gave to police I do not believe that she wanted to have sex with Mr. C., I am prepared to find a reasonable doubt in that regard. It is however not enough if S. initiated the sexual touching of Mr. C. or if she said yes to having sexual intercourse with him. It is not her physical responses that are in issue but rather her ability to give an informed consent. I must determine if she made such a decision of her own free will, fully aware of the proposed activity and its consequences.

[167] I do not accept Mr. C.’s evidence that generally speaking, in French Creole and in a social setting S. was more sophisticated. In this regard I accept the evidence of the two experts to the effect that her developmental disability would be evident regardless. This evidence was corroborated by my own observations of S. at trial. Although S. may have been feeling certain sexual desires, and she may even have had some earlier concrete experience with boyfriends in St. Lucia, I do not believe that at the time of the admitted intercourse S. had with Mr. C. that she understood what sexual intercourse was and I find it inconceivable that she would have had any idea about the risk of unprotected sex and the possible consequences of disease and/or pregnancy. In fact, despite becoming pregnant and having an abortion, she had no understanding of either of those events and considers a pregnancy to be a “cancer in your belly”.

[168] Accordingly, even though the evidence of Mr. C. raises a reasonable doubt as to whether or not S. may have said “yes” to sexual intercourse with him of her own free will, by her words or actions, I am sure that when she made that decision she was not fully aware of or apprised of the proposed activity; namely sexual intercourse, nor did she have a full appreciation and knowledge of the consequences of that activity. Based on the definition of consent set out in R.R. I am satisfied beyond a reasonable doubt that S. was incapable of giving her consent to sexual intercourse with Mr. C. Her developmental disability most certainly made it impossible for her to make an informed decision; she was incapable of understanding the nature of the act, its possible consequences and the risks of unprotected sexual intercourse.

[169] For these reasons I find that the Crown has proven beyond a reasonable doubt that S. did not have the capacity to consent to sexual intercourse with Mr. C. There is no defence of consent.

If not, did Mr. C. honestly but mistakenly believe that S. had the capacity to consent to sexual intercourse and had in fact consented?

[170] Turning to the second issue, giving my finding that S. did not have the necessary capacity to consent to sexual intercourse, the remaining question is: has the Crown proven beyond a reasonable doubt that Mr. C. did not honestly but mistakenly believe that S. had the capacity to consent to sexual intercourse?

[171] First of all, I do not believe Mr. C.’s evidence, nor does it raise a reasonable doubt, that he honestly believed that S. had the capacity to consent to sexual intercourse. I have already explained that I do not accept his evidence that S. seemed like a 30 year old woman when they had good conversations in French Creole and what he based that conclusion on. Mr. C. in his evidence very often gave away the fact that he saw S. as a little child and that he knew she was not a normal 20 year old young woman. As I have said, it is clear that this is why Mr. C. saw S. like a little child at least until she proved to him that she was her chronological age by showing him her passport. His other evidence of why she was more mature than how she appeared was incredulous in light of this evidence and in my view only given to bolster what anyone observing S. would consider a ridiculous proposition. For example his evidence that S. was jealous of the women who came to visit him or her reason for complaining about her mother hitting her or the fact she referred to herself as a “big woman” could not really have had any serious impact on his view of her as a little child.

[172] Mr. C. had his own daughters S.’s age and so he must have had a good idea of how a typical 20 year old woman would act. He also had E., who was only three years older to compare to S. I accept his evidence that he did not find it strange that S. did not know how to read or write but he knew S. was not going to a school to learn to read or write and he admitted that he did not believe her when she said she did dishes at school or helped at school. He saw her go to school by bus, unlike younger children who lived upstairs. Most importantly he admitted that she showed him pictures that she coloured at school. Although I do not have a copy of what she showed Mr. C., based on the many pictures that S. showed me in court, she was drawing consistently like a very small child. Mr. C. evidence that he did not find this unusual because she had minimal schooling in St. Lucia is absurd as is his evidence that the drawings and colouring appeared as if they were done by someone aged between 16 and 20. The pictures that I saw are consistent with what I would expect from a three year old child. Furthermore, Mr. C. knew that one of S.’s main interests was colouring which was very immature considering her age.

[173] Mr. C.’s evidence as to why he did not wonder about the fact that S. did not work, go out on her own, have friends her own age, have money, and cook regularly given how busy her mother was, was also incredible. Again he gave flimsy explanations trying to justify his evidence. I do not accept that he held these views at the time. As he himself put it, S.’s mother asked him to check on S. for her when she was on her own and he also said that he had to make sure she went to school during the two week period her mother was upset with her. This is certainly not what one would expect of a 20 year old and Mr. C.’s own evidence makes it clear he understood this at the material time. Furthermore, his description of how S. constantly nagged him to take her to Niagara Falls, to buy her a ring, to marry her and his initial expressed reluctance to have sexual intercourse with her all strongly suggests that he was well aware of her developmental delay. That is why he considered her a child, called her a little child and at least initially went to great lengths to avoid S. discovering that he had come home.

[174] For these reasons I am satisfied that Mr. C. knew S. had some condition that resulted in her behaving like as he put it, a little child. That is why he insisted that she “prove” her age to him. Mr. C. had an obligation to take reasonable steps prior to having sexual intercourse with S. to ascertain consent: Criminal Code s. 273.2(b). As the Court of Appeal said in R. R. (at para. 57) “where one of the participants has demonstrable mental limitations, the threshold of responsibility escalates exponentially. …it requires that prior caution be exercised to avoid the exploitation of an exceptionally vulnerable individual.”

[175] Any thought Mr. C. gave to S.’s capacity to consent to sexual activity was an effort to have her prove to him that she was of a legal age chronologically, which in his mind then permitted him to have sexual intercourse with her. He made no other inquiries. Once Mr. C. determined that S. was legally of age, by insisting that he see her school ID and her passport, he gave no consideration to whether or not her developmental capacity impacted on her ability to make a fully informed decision about having unprotected sexual intercourse with him. As I have already stated I do not accept his stated belief based on conversations with S. in French Creole that she was like a 30 year old or that she knew what sexual intercourse was all about. In the context of all of the other evidence, and my observations of S. both in her videotaped statement and at trial, that evidence is simply incredulous. Mr. C. assumed that because S. was legally old enough and on his evidence, was willing and even encouraging him to have sexual intercourse with her, that he could assume she consented, ignore her cognitive limitations and have no regard for whether or not she had the capacity to make an informed decision about having sex with him.

[176] Based on the evidence and what I saw in court of S., it is inconceivable to me that anyone observing S. and speaking to her for even a few minutes would not quickly conclude that she was like a child and not what one would expect of a typical 24 year old young woman, or at the material time, a 20 year old woman to be like. Mr. C. took advantage of the fact that S. was often left alone while he was in the apartment, that she had come to like him and consider him a friend, and perhaps that she felt sexual desires towards him which she did not understand. She was extremely vulnerable to his sexual advances, whether she felt that she wanted to have sex or not. She had absolutely no appreciation of what sexual intercourse entailed and Mr. C. must have known that. Even if she had told him about boyfriends in St. Lucia, that did not permit him to ignore her obvious developmental disability and presume that any willingness she exhibited was sufficient for him to presume she consented to unprotected sexual intercourse and the possible consequences of that.

[177] Even if Mr. C. honestly believed that S. had the capacity to consent to sexual intercourse, which I do not find, for these reasons I find that he came to that belief by ignoring the obvious signs, or as Ms. Wadon put it, the red flag, that there were developmental delay issues with S. As the court stated in Esau, by at the very least turning a blind eye and not seeing or hearing what there was to hear or see and making an assumption that S. consented to sexual intercourse without determining whether, as a matter of fact, that she had made an informed decision to consent cannot be raised by Mr. C. as a defence. This is not a case where the young woman in question was only slightly delayed. Although it is considered moderate, she can be likened to a child in the range of three to five years not a teen of 14 to 15.

[178] For these reasons I reject the evidence of Mr. C. and find that it does not raise a reasonable doubt. On all of the evidence I do accept I find that the Crown has proven beyond a reasonable doubt that Mr. C. did not have an honest but mistaken belief in S.’s capacity to consent to sexual intercourse.

Disposition

[179] Mr. C., would you please stand.

[180] For the reasons I have given, I find you guilty of count #1, sexually assaulting S.A.

Spies J.

Released: January 7, 2013

Court File No.: 5-704/11 Date: 2013-01-07 Ontario Superior Court of Justice

Her Majesty the Queen – and – C.C., Defendant

Reasons for Judgment

Spies J.

Released: January 7, 2013

[^1]: 1991 93 (SCC), [1991] 1 S.C.R. 742.

[^2]: See R. v. C.L.Y., 2008 SCC 2 at paras. 7, 9; R. v. J.H.S., 2008 SCC 30 at para. 13.

[^3]: See R. v. C.L.Y., ibid. at para. 6; R. v. Mends, 2007 ONCA 669 at para. 18. R. v. Carriere (2001), 2001 8609 (ON CA), 159 C.C.C. (3d) 51 at para. 48 (Ont. C.A.).

[^4]: R. v. J.H.S., supra at para. 9.

[^5]: R. v. Hull, 2006 26572 (ON CA), [2006] O.J. No. 3177 at para. 5. See also R. v. Van, 2009 SCC 22 at para. 23.

[^6]: 2001 3091 (ON CA), [2001] O.J. No. 1718

[^7]: 2001 27934 (ON CA), [2001] O.J. No. 4254

[^8]: 1997 312 (SCC), [1997] 2 S.C.R. 777 at pg. 808