ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 09-5105
DATE: 2013-02-12
B E T W E E N:
HER MAJESTY THE QUEEN
Dallas Mack, for the Crown
- and -
F.L.
Cedric Nahum, for the Defendant.
Defendant
HEARD: January 28 -31, 2013
REASONS FOR DECISION - GARDINER HEARING
T.D. RAY J.
Introduction
[1] The defendant was convicted following his pleas of guilt to two counts: one count involves sexual assault of a child under 14 between January 1, 2006 and February 15, 2008 and the other is sexual touching of a child under 14 between the same dates. As a preliminary matter to the sentencing hearing, the Crown took the position that there were several assaults over the periods of time described in the counts, whereas the defendant only admits to one. The allegations of there having been other incidents of sexual assault and sexual touching would, if proved beyond a reasonable doubt, be considered to be aggravating factors. As a consequence, I undertook a Gardiner[^1] hearing in order to determine the circumstances described in the counts to which the defendant pleaded guilty. Since this hearing forms part of the sentencing hearing and permits me to consider evidence at a lower threshold than I would be permitted at trial, nonetheless, I am required to apply the reasonable doubt standard to the evidence concerning evidence of other sexual assaults and sexual touching as alleged by the Crown as aggravating factors. Since the defendant gave evidence, I must apply the principles in W(D).
[2] Counsel agrees that following this decision, the balance of the sentence hearing and submissions (which will include a Gladue analysis) will be scheduled.
[3] The complainant, EB, is a seventeen year old Grade 12 student and is now a Crown ward. On October 12, 2008 at the age of 13, she gave birth to a child. The 34 year old defendant is the father. He is in custody following his breach of a bail condition after he left the jurisdiction. EB has a brother who is two years younger.
Evidence
[4] The defendant admits to one incident of sexual intercourse and touching when EB was 12 years old. At the time, he was EB’s mother’s boyfriend and had been living with her since EB was approximately 5 years old. The defendant says that one evening in early to mid-January 2008, he was lying on his bed after having consumed 6 beers, when EB entered his room, climbed up on him, straddled him, then rolled over and removed her bottoms, resumed straddling him with his penis inside her until he ejaculated. He said his judgement was clouded by alcohol, but admitted that he was a frequent drinker and 6 beers was pretty well normal for him. He said that nothing was said by her or him, before or after the incident, and she then left the room. He did not notice her bleeding from her vagina, denied that she was crying, and denied that she asked him to stop. According to the defendant, EB’s mother and brother had left to go shopping. The defendant said nothing was ever said about the incident and there was no recurrence. EB continued to live in the same house as the defendant, her mother and brother (as well as her grandparents) until the baby was born. He said he did not know she was pregnant until after a hospital visit by EB in September 2008. When the defendant learned she was pregnant, he assumed he was the father. The defendant also denied that he was ever in a stepfather or parental relationship with EB. He denied that EB’s hand holding with him – with fingers intertwined – meant anything sexual and said that an observation by a physician during a medical visit that EB had her hand on his chest under his shirt was wrong - she was rubbing his stomach. Furthermore, he said that while EB had asked that he be in the delivery room with her, she had also asked that her mother be in the delivery room.
[5] The defendant said he denied the incidents when asked by the police because he was ashamed. He declined to submit to a DNA test without a court order because he was hoping it would all go away.
[6] The defendant denied sending EB a facebook post that he was sorry for what he had done and said firstly that he had asked EB’s mother to send EB a facebook post and then later said that EB’s mother must have hacked into his facebook account and sent EB the message without his knowledge. He admitted to having been convicted of sending the facebook post in breach of a term of his bail that he not communicate with EB.
[7] The defendant has a criminal record dating back to 1993 with several convictions for dishonesty.
[8] Throughout, EB was actually in the care of her grandparents under the supervision of the Childrens’ Aid Society because her mother and the defendant had demonstrated an inability to maintain clean and safe accommodation for the children. However, the children visited their mother and the defendant during weekends and holidays at their apartment. The children slept on a couch during these visits. During two periods of time – after the defendant and EB’s mother had been evicted from their apartment – they moved in with the grandparents – and EB and her brother. The house was two storeys. EB slept in a bedroom on the ground floor, the grandparents and EB’s brother slept on the second floor, while the defendant and EB’s mother slept in the basement.
[9] EB said that in late June or July 2006, while visiting her mother at the apartment where they lived, she was asleep on the couch when the defendant woke her, took off her pyjama bottoms, put a pillow over her face and threatened her not to tell anyone or he would hurt her brother. He then touched her vagina and put his penis inside her. She was crying and asked him to stop. When he was finished he left the room. Her vagina was bleeding. She got up, went to the bathroom and had a shower. She said this happened again very weekend during her visits and twice each visit - Friday and Saturday nights. On most occasions he would kiss her and touch her vagina. She found her vagina to be wet and slimy afterwards. Her brother did not always visit, or if he did, he would visit friends elsewhere.
[10] EB said after her mother and the defendant moved from their apartment into her grandparents’ home the assaults continued in her grandparents’ home. The defendant would come into her room, lock the door, take her pyjamas off and repeat the process by starting with a pillow over her head. She said she cried every time and asked him to stop. He would push harder on the pillow when she cried.
[11] She said that these incidents continued for almost a year. His visits to her room finally stopped when she started keeping the new family dog in her room and the dog would bark whenever the defendant tried to come into her bedroom.
[12] She said she didn’t tell her mother because of the defendant’s threats to hurt her brother and she didn’t think her mother would believe her. She denied ever treating the defendant like a boyfriend and denied ever feeling like a girlfriend to him. As for occasions when others remarked that she seemed very clingy to him and affectionate, she said she was nice because her mother had told her to be nice to him.
[13] Finally, after she visited a doctor in April, 2008 and learned she was pregnant, she said she told her mother the defendant was the father, but her mother didn’t believe her. When questioned about her various stories that a boy raped her, or another boy made her pregnant as she told the police in September 2008 at the first interview, she said she was frightened of the defendant’s threats. Then finally she wrote the defendant’s name on a piece of paper – as the father - during the second police interview in November 2009, told of going to his room and spoke only of there being one incident. She said she lied to the police that she only had sex with the defendant once, because she was afraid of him. She denied telling her mother that it was her idea to have sex with the defendant, not the defendant’s idea; and also lied when she said they had sex on her mother’s bed, not the couch.
[14] EB’s mother said she hadn’t noticed that EB had gained weight and only wondered in August 2008 if she was pregnant when she found EB’s unused sanitary napkins in her room. EB’s grandparents took EB to a clinic after a home pregnancy test showed she was pregnant. It was confirmed that EB was pregnant. EB’s mother said EB told her a number of different stories about boys. Then in September, after an altercation, EB was taken to the hospital and checked. The CAS became further involved and told EB’s mother that the defendant would have to leave the house. She said she telephoned the defendant and he seemed to know already that he had to leave. EB’s mother said she had her suspicions about the defendant when he seemed to be avoiding giving a DNA sample from September 2008 onwards, but said and did nothing. Then when the DNA test in November 2009 confirmed he was the father and she again confronted him, the defendant told her he didn’t remember any incident with EB. Then the defendant said - maybe if it happened, it was when he had been drinking. EB’s mother and the defendant continued to live together until his arrest.
[15] EB’s mother said that EB had always seemed to be affectionate to the defendant. She was clingy. She noticed that when she (EB’s mother) and the defendant were physically close, that EB would want to get close as well; but she didn’t think anything about it because the defendant’s own daughter was like that as well. She said that she and the defendant stayed together until he was arrested in December 2009. Afterwards, EB told her that she hadn’t said anything to her about the defendant because she was afraid that she (the mother) would get upset. She denied ever hacking into the defendant’s face book account.
[16] EB’s grandfather, LB, told of being the CAS custodial caregiver for EB because EB’s mother couldn’t or wouldn’t maintain a safe and healthy home for EB and her brother. He said he had a learning disability and had difficulty with some words. He described EB’s room in their home and said that there were no locks on the door and furthermore, the new dog never slept in her room. It slept in a cage in the living room. He noted that EB seemed to be a happy girl and that she and the defendant had behaved like boyfriend - girlfriend. It bothered him at the time. When he asked the defendant about it, he didn’t get an answer. However, when EB got pregnant, he did not initially suspect the defendant. He had not noticed that EB had gained weight. He said she was a big girl and wore baggy clothes. After the baby was born in October 2008, he was told by the CAS that EB should not be with her mother and the defendant unless supervised. However, he did let her visit on one occasion without supervision.
[17] Two statements of agreed facts were filed.
Positions of Counsel
[18] The Crown’s position is that EB’s evidence establishes beyond a reasonable doubt that he sexually touched and sexually assaulted EB on several occasions, that her evidence of other boys being responsible, then initially denying the defendant’s involvement, then admitting it was one occasion and finally, her evidence at trial of continuous assaults was credible and reliable as being consistent with a young girl who felt she had no options in the face of the defendant’s threats to hurt her brother. His position is that the inconsistencies in her evidence were not significant and in no way undermined her reliability. The Crown maintains that the defendant’s story is simply not believable.
[19] The defendant contends that EB’s evidence is completely tainted by her numerous and significant inconsistencies and she is not reliable. He insists the evidence that he was not her stepfather or in a paternal relationship was consistent and believable. He maintains the Crown has not met the onus of proof.
Analysis
[20] While I must not weigh the defendant’s evidence against that of EB to make my findings, I cannot ignore the totality of the evidence in conducting my analysis of his evidence.
[21] Firstly, in accordance with W(D), I must consider whether I believe the defendant. I do not. While I accept that his evidence (of there having been one incident and that incident was initiated by EB), is consistent with one of the versions given by EB to the police, I reject it because of its implausibility. It makes no sense that an 11 or 12 year old girl with no sexual experience would come into his bedroom while her mother is out and initiate sexual intercourse as he described, with no foreplay, no discussion, no warning, and initiate sex with her mother’s boyfriend with whom she had lived since she was 5 or 6 years old. Her evidence was that she was a virgin. There was no evidence to contradict that. While he says he didn’t notice bleeding, that does not mean she was untruthful about bleeding from her vagina. His evidence that there was no discussion before or afterwards is equally implausible. That was her first sexual experience – of that there is no doubt. While the defendant might have treated it as a non-event, it is impossible to believe that an 11 or 12 year old would have experienced that life altering moment without a discussion – even if it was a discussion threatening her not to tell anyone. The implausibility is compounded by the fact that according to the defendant, one incident caused her to be pregnant. I simply do not accept his evidence concerning that incident nor do I accept that it occurred as he described, in January 2008, as being the moment of conception. The defendant’s contention that it was simply an error in judgment on his part when he permitted her to display affection towards him, borders on the incredible. If the incident occurred as he described and if he in fact considered his judgement had been clouded at the time, then one would expect that after reflection, he would do everything he could to discourage EB’s attentions. He did not. His response was to attempt to characterize her attentions as normal. They were not. I am not left with a reasonable doubt as a result of the defendant’s evidence.
[22] Having rejected the defendant’s evidence, I must now turn to whether, based on all of the evidence, I am left with a reasonable doubt. In particular, I must consider the evidence of EB’s mother that when EB came to visit their apartment on weekends, her son was always there and he slept on the couch where EB slept. EB’s evidence concerned events that occurred when she was 11 or 12 – five years ago. I accept that EB’s brother was there a good deal of the time and the sexual assaults occurred less frequently than EB recalled. We are constantly reminded not to apply adult standards of the assessment of evidence to children.[^2] I find her description of the assaults to be believable, even if less frequent than she described.
[23] I must consider the evidence that EB said that when the defendant came into her room at her grandparent’s, he would lock the bedroom door, whereas EB’s grandfather said there was no lock on the bedroom door. She slept in the room. It was her room. She would know if it had a lock. If there was no lock, it makes no sense that she would lie about there being a lock. The essential outline of the assaults in her bedroom had a ring of truth.
[24] I must consider the evidence of EB that the sexual assaults at her grandparent’s home stopped only after the new family dog began to sleep in her bedroom; whereas EB’s grandfather said the dog always slept in a cage in the living room. No explanation was offered for the discrepancy. EB’s grandfather was not told the context of the evidence, he was just asked where the dog slept. Similarly, EB was not told in cross-examination that her grandfather would contradict her, when she was asked if she was sure. One thing is for sure, the sexual assaults stopped once EB became pregnant after January 2008.
[25] I must consider the evidence of EB that the affection she showed towards the defendant was because her mother told her to be nice to him and she didn’t want her mother to be angry. I must consider that same evidence in the context of threats by the defendant that she said he would hurt her brother if she ever told anyone. In other words, her shows of affection to the defendant were inconsistent with her being fearful of his threats to hurt her brother. This is perhaps the most troubling evidence. This 13 or 14 year old was displaying affection towards the defendant and denied that she was being affectionate in her evidence. There is no doubt that she was. Her grandfather was concerned. Her mother noticed it. Medical personnel noted these indications – even noting that EB wanted the defendant to be in the delivery room with her. One can only imagine what was going on in this child’s mind at the time - the torments that she was living with. One fair and reasonable inference is that she had rationalized the sexual relationship with the defendant into a love relationship. Equally troubling is that EB’s mother would make observations of her daughter being affectionate with her boyfriend, the defendant, and remain silent. I remind myself again we must be cautious about assessing the behaviours of children by adult standards. I do not find her behaviours to be inconsistent with her evidence of the assaults by the defendant which began with threats.
[26] I must consider the different stories EB told. Initially, she denied she was pregnant, then when she was confronted with the fact that she was, she told a series of stories that one boy had raped her at a ski resort and then other boys were responsible. After the DNA evidence, she admitted to the police the defendant had assaulted her, but said it only happened once, and she had initiated it. Her story since changed again to include repeated sexual assaults by the defendant over a lengthy period of time. I noted my concerns above about what was going in this child’s mind. A clear inference is that she was trying to protect the defendant. And in fact she had successfully defended or protected him for almost two years. The defendant declined in submissions to suggest what inferences might be available but suggested that she just was not believable. I don’t accept that these inconsistencies undermine her credibility. If anything, they suggest a painful struggle with complicated feelings, with parents who were dysfunctional.
[27] Having considered the totality of the evidence, I accept the essence of the evidence of EB concerning the sexual assaults. I am not left with a reasonable doubt that the defendant sexually assaulted and sexually touched the defendant over a period of many months, during the course of which she became pregnant.
[28] I find that the defendant was in a parental relationship with EB at all times. He abused one of the underlying principles in a family in our society that parents have an overriding obligation to protect children. When a parent – or as here- someone in a parental role not only breaches that obligation but they themselves sexually assault a child for their own gratification, then they have breached a fundamental tenet of the family in our civilization.
Honourable Justice Timothy Ray
Released: February 12, 2013
COURT FILE NO.: 09-5105
DATE: 2013-02-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
F.L.
REASONS FOR DECISION
GARDINER HEARING
Ray J.
Released: February 12, 2013
[^1]: R v Gardiner, [1982] SCJ No. 171
[^2]: R v HC, 2009 ONCA 56 @ paragraph 42