ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR12-175
DATE: 20130207
BETWEEN:
HER MAJESTY THE QUEEN
Andrew Shatto for the Crown
- and -
D.W.
Jill Gamble, for the Defendant
Defendant
HEARD: February 5, 6, 2013
REASONS FOR JUDGMENT
Conlan J.
INTRODUCTION
[1] This is a case of alleged sexual abuse by a man against his daughter and his granddaughter.
[2] D.W. stands charged with six criminal offences. The Indictment, as paraphrased by me, provides as follows:
- Count 1 – that D.W., between June 1, 2004 and January 31, 2008, at Southgate, did repeatedly commit a sexual assault on M.A., contrary to section 271 of the Criminal Code of Canada;
- Count 2 – that D.W., between the same dates and at the same place, did repeatedly for a sexual purpose touch M.A., a person under 14 years old, directly with a part of his body, to wit his penis, contrary to section 151 of the Criminal Code of Canada;
- Count 3 – that D.W., between the same dates and at the same place, did repeatedly for a sexual purpose incite M.A., a person under 14 years old, to touch directly a part of his body, to wit his penis, contrary to section 152 of the Criminal Code of Canada;
- Count 4 – that D.W., between January 1, 1988 and December 31, 1994, at Mount Forest and elsewhere in Ontario, did repeatedly commit a sexual assault on W.A., contrary to section 271 of the Criminal Code of Canada;
- Count 5 – that D.W., between January 1, 1988 and December 31, 1991, at the same place, did repeatedly for a sexual purpose touch W.A., a person under 14 years old, directly with a part of his body, to wit his penis, contrary to section 151 of the Criminal Code of Canada; and
- Count 6 – that D.W., between the same dates and at the same place, did repeatedly for a sexual purpose incite W.A., a person under 14 years old, to touch directly a part of his body, to wit his penis, contrary to section 152 of the Criminal Code of Canada.
[3] D.W. has entered pleas of not guilty to all charges.
[4] This brief trial was held in Owen Sound on February 5, 2013, with closing submissions by counsel on February 6. There were just two witnesses, the complainants. The accused called no evidence. The Court reserved its Judgment.
[5] A Publication Ban has been issued with regard to the names and identities of the two alleged victims.
THE CHARGES AND THE BURDEN AND STANDARD OF PROOF
Invitation to Sexual Touching – s.152 of the Criminal Code of Canada
[6] For me to find D.W. guilty of invitation to sexual touching, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
- that W.A./M.A. was under fourteen years old at the time (not an issue in this case);
- that D.W. invited, counselled or incited W.A./M.A. to touch D.W.’s body; and
- that the touching that D.W. invited, counselled or incited was for a sexual purpose.
[7] If I am not satisfied beyond a reasonable doubt of all these essential elements, I must find D.W. not guilty of invitation to sexual touching.
[8] If I am satisfied beyond a reasonable doubt of all these essential elements, I must find D.W. guilty of invitation to sexual touching.
[9] The Crown must prove each essential element of each count beyond a reasonable doubt. Proof of probable or likely guilt is not enough.
[10] D.W. is presumed to be innocent of each charge. He has no burden of proof.
Sexual Interference – s. 151 of the Criminal Code of Canada
[11] For me to find D.W. guilty of sexual interference, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
- that W.A./M.A. was under fourteen years old at the time (not an issue in this case);
- that D.W. touched W.A./M.A.; and
- that the touching was for a sexual purpose.
[12] If I am not satisfied beyond a reasonable doubt of all these essential elements, I must find D.W. not guilty of sexual interference.
[13] If I am satisfied beyond a reasonable doubt of all these essential elements, I must find D.W. guilty of sexual interference.
[14] The Crown must prove each essential element of each count beyond a reasonable doubt. Proof of probable or likely guilt is not enough.
[15] D.W. is presumed to be innocent of each charge. He has no burden of proof.
Sexual Assault – s. 271 of the Criminal Code of Canada
[16] For me to find D.W. guilty of sexual assault, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
- that D.W. intentionally applied force to W.A./M.A.; and
- that the force that D.W. intentionally applied took place in circumstances of a sexual nature.
[17] Note that consent and honest but mistaken belief in consent are not relevant here because of the ages of the alleged victims at the material times.
[18] If Crown counsel has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find D.W. not guilty of sexual assault.
[19] If Crown counsel has satisfied me beyond a reasonable doubt of each of these essential elements, I must find D.W. guilty of sexual assault.
[20] The Crown must prove each essential element of each count beyond a reasonable doubt. Proof of probable or likely guilt is not enough.
[21] D.W. is presumed to be innocent of each charge. He has no burden of proof.
A BRIEF SUMMARY OF THE EVIDENCE AT TRIAL
W.A., complainant, for the Crown
[22] Now 35 years old, W.A. is the daughter of the accused and the mother of the other complainant, M.A.
[23] On November 13, 2011, M.A. disclosed to W.A. something which caused both of them to go to the police that same day. They gave statements to the police two days later.
[24] W.A. alleges that the accused sexually abused her on multiple occasions when she was between 9 and 16 years of age.
[25] The first alleged incident occurred when she was 9 years old during a trip that she and D.W. took to Ireland. After coming home drunk, D.W. got in to bed with W.A. They were both lying on the bed, facing the same direction, with D.W. behind W.A. The accused rubbed her vagina; touched her breasts; took off her nightgown and underwear; undid his pants; rubbed his penis around her bum area; and then put his penis in her vagina “a little bit”.
[26] According to W.A., something which happened “quite often” was sexual touching at the arena in Mount Forest, Ontario, where D.W. worked. The specific location was behind a closed door in a large garage at the back of the arena, where the Zamboni which D.W. operated was stored. D.W. rubbed her breasts; put his mouth on her bare breasts; and had her touch his erect penis and “jerk him off”, without ejaculation. D.W. told W.A. not to tell anybody.
[27] W.A. indicated in cross-examination that she does not know how many times the alleged sexual touching occurred at the arena. It occurred regularly between her ages of 9 and 15 years.
[28] W.A. alleged that there were also incidents of sexual touching that took place inside D.W.’s motor vehicle while parked at the arena.
[29] According to W.A., something else that happened “quite often” was sexual touching while she and D.W. were driving between their home in Mount Forest and D.W.’s restaurant in Durham. While driving on the highway at about 80 km/hr., the accused felt her breasts under her shirt; touched her vagina; and took her hand and had it rub his erect penis over top of his pants. These alleged incidents while driving occurred after the alleged abuse that took place at the arena.
[30] When asked by the Crown in direct examination why these alleged incidents of sexual abuse were not disclosed by her earlier, W.A. described that she loved and still loves D.W., her mother and her brothers and did not want to tear the family apart and get her father in to trouble. W.A. was visibly upset while testifying in that regard.
[31] In cross-examination, W.A. stated that November 13, 2011 was the very first time that she had any idea that her daughter M.A. had been sexually assaulted by the accused. W.A. was then confronted by defence counsel with a document from Homewood Health Centre dated November 24, 2010 which says, in part: “Several ongoing issues with her children, but most recently she is experiencing the most difficulty with her 14 year old daughter whom recently discovered has been sexually abused as a young child. This daughter is also currently experimenting with drugs and having difficulty at school”. Although W.A. admitted that only M.A. was having problems with drugs and school, W.A. stated that she did not say that to Homewood staff. W.A. testified that the report is inaccurate. W.A. testified that she only spoke with Homewood staff about her own sexual abuse and that of her other daughter, K.
M.A, complainant, for the Crown
[32] Now 17 years old, M.A. (the daughter of W.A. and the granddaughter of the accused) alleged multiple incidents of sexual touching by D.W. against her between her ages of 8 or 9 and 14 or 15 years.
[33] In direct examination, M.A., in this order, described seven alleged incidents of sexual touching.
[34] The first alleged incident occurred in the living room of D.W.’s trailer. She was 8 or 9 years old. She was sitting on his lap. He lifted a magazine up in front of her and put his other hand up her top, under her training bra and on her bare breasts. That lasted about two minutes.
[35] The second alleged incident occurred at her house. She was 8 or 9 years old. She was playing a game with her sister, S., where they were chasing each other around in a circle. The accused was sitting on a chair at the end of a table. His pants were unzipped. His penis was exposed. He had her suck his erect penis about seven times during the game.
[36] The third alleged incident occurred in the living room of D.W.’s trailer. She was 8 or 9 years old. While M.A. and the accused were lying on the couch, he lifted up her nightgown and touched the top area of her bare vagina with his fingers.
[37] The fourth alleged incident occurred on the couch in the living room of D.W.’s trailer. She was 9 years old. He grabbed her hand and had her “jerk him off” by rubbing his penis for about five minutes. He then rubbed his penis in circles on her vagina. He ejaculated. He then told her to wipe herself off, which she did. There was semen on her vagina. He told her not to say anything. He also said that he would take her virginity when she was old enough.
[38] The fifth alleged incident occurred on the couch in the living room of D.W.’s trailer. She was 11 or 12 years old. He had pornography on the television. He kissed her on the lips. He took out his penis and forced her to suck it until she gagged. He made her masturbate him with her hand on his penis until he ejaculated.
[39] The sixth alleged incident occurred outside the trailer. He kept grabbing her bum.
[40] The seventh alleged incident occurred on the couch in the living room of D.W.’s trailer. She was 10 years old. He lifted her nightgown and touched her vagina with his fingers. The episode ended abruptly when he pulled her nightgown down because his wife, her grandmother, came nearby.
[41] When asked by the Crown in direct examination why these alleged incidents of sexual touching were not disclosed by her earlier, M.A. said that she was trying to protect her mother as W.A. took it very hard and blamed herself when it was discovered that K., M.A.’s sister and W.A.’s daughter, had been sexually molested by a family member.
[42] There were several material inconsistencies in the evidence of M.A. which were explored by defence counsel in cross-examination. Those matters will be dealt with below in the Analysis section of these Reasons for Judgment.
ANALYSIS
[43] The Crown argues that these complainant witnesses were both credible and reliable; they were detailed in their accounts; neither has any motive to fabricate; there is no recent fabrication by either; and there was no collusion between them.
[44] The Defence argues that neither complainant was credible or reliable and, further, neither was detailed in her allegations.
[45] I am cognizant of the binding authority of the Supreme Court of Canada regarding evidence of witnesses who testify about childhood events. I have instructed myself specifically that I must assess the evidence of M.A. and W.A. in light of their ages at the material times. They cannot be held to some standard of perfection or exquisite detail. The presence of inconsistencies, especially about peripheral matters, must be examined in the context of the tender ages of these two complainants at the material times: Regina v. W.(R.), 1992 56 (SCC), [1992] S.C.J. No. 56 (SCC), at paragraph 26.
[46] It may be that M.A. is telling the truth about what happened between her and the accused, however, there are too many problems with her evidence to conclude that it is reliable or credible, even assessed in the context of her young age at the material times and her still young age today. The following are some examples.
[47] First, M.A. never told the police in her statement anything about sucking D.W.’s penis during the second alleged incident where she and her sister, S., were playing the chasing game. She told the police only that D.W. made her touch his penis. When confronted with that material omission, M.A. testified that she just remembered on February 5, 2013 that she sucked his penis during that incident. But then M.A. acknowledged testifying at the Preliminary Inquiry that she had sucked D.W.’s penis during that incident. That is a material inconsistency.
[48] Second, M.A, acknowledged that she did not speak at all in direct examination at trial about a specific incident of alleged sexual touching that she described in her police interview. M.A. said that she did not recall that incident earlier at trial. That gives me some concern about her memory.
[49] Third, M.A. acknowledged that she never told the police or the Court at the Preliminary Inquiry that the accused had ever ejaculated. That is a material omission. M.A. testified that she remembered the ejaculation just a couple of weeks before the trial. Again, that gives me some concern about her memory.
[50] Fourth, M.A. acknowledged that she never told the police or the Court at the Preliminary Inquiry that the accused said he would take her virginity some day. That is a material omission. M.A. testified that she did not remember that alleged comment at the times of the police statement or the Preliminary Inquiry. Again, that gives me some concern about her memory.
[51] Fifth, M.A. acknowledged that she never told the police or the Court at the Preliminary Inquiry that the accused kissed her. That is a material omission. M.A. testified that she did not remember that alleged comment at the times of the police statement or the Preliminary Inquiry. Again, that gives me some concern about her memory. In fact, M.A. testified that she did not remember being at the Preliminary Inquiry that well. The Preliminary Inquiry was less than one year ago, in June 2012.
[52] M.A. then testified that she in fact remembered the kissing when she gave her evidence at the Preliminary Inquiry but simply did not mention it then. That is materially inconsistent with what M.A. said a few moments earlier in her testimony at trial.
[53] Sixth, M.A. admitted that she told the police that every incident of alleged sexual touching happened at D.W.’s trailer. That is incorrect as the second alleged incident, according to M.A., happened inside her home. M.A. explained that contradiction by saying that what she meant when she spoke with the police was that every alleged incident happened on that property, which property includes both the trailer and her home. That makes no sense, however, because she told the police specifically in her statement that all of the incidents occurred “in the living room” of the trailer. M.A. then said that she meant to indicate that most of the incidents occurred inside the trailer. That is not credible.
[54] Seventh, M.A. acknowledged that she never told the police or the Court at the Preliminary Inquiry anything about the alleged incident which was interrupted when her grandmother came nearby. That is a material omission.
[55] Given the reliability and credibility concerns that I have about the evidence of M.A., I am not satisfied that the Crown has proven beyond a reasonable doubt the charges involving M.A.
[56] The charges involving W.A. are a closer call. Her evidence was without any direct contradictions or material inconsistencies. I agree with the Crown that I cannot find that her testimony was inconsistent with what she told Homewood Health Centre as to when she first learned that M.A. had been sexually assaulted because (i) W.A. denies making the alleged prior inconsistent statement to Homewood and (ii) there is no other admissible evidence before the Court proving that alleged prior inconsistent statement to Homewood.
[57] It must be remembered that corroboration is not required for the Crown to meet its burden of proof.
[58] It must be remembered as well that great caution should be paid before placing any importance on the delayed disclosure to authorities of these alleged incidents of sexual abuse.
[59] The real question is whether I am sure that D.W. committed these crimes against his daughter. That is the language that we Justices routinely use in instructing juries on the meaning of proof beyond a reasonable doubt. Likely guilt is insufficient. Probable guilt is insufficient. Proof to a moral certainty is impossible, although the standard to be met is closer to that than it is to proof on a balance of probabilities.
[60] After much reflection, I have concluded that I am not sure. I have a reasonable doubt.
[61] First, I am concerned about the vagueness of W.A.’s accounts, even after accounting for the fact that she was a young child between 9 and 16 years old at the time. For examples, W.A. did not describe the number or approximate number or range of numbers of alleged incidents at either the arena or while driving between Mount Forest and Durham; she did not state her age or approximate age at the time of any specific alleged incident at the arena or while driving; she did not know her age or approximate age when the alleged arena incidents stopped; she did not describe any specific clothing worn by her or the accused during any of the alleged incidents except a generic description of what she normally wore in the motor vehicle en route between Mount Forest and Durham; and, while W.A. cannot be expected to pinpoint a date or even approximate date of any specific alleged incident so long ago, she also did not describe the time of day or approximate time of day or the season of any specific alleged incident at either the arena or while driving.
[62] Ironically, the only alleged incident described by W.A. with any degree of specificity at all is the alleged sexual touching that occurred in Ireland, which evidence was not led by the Crown in support of any of the counts before the Court but simply as narrative.
[63] The degree of vagueness, or put another way the extent of generalizations, in the evidence of W.A. adversely affects the reliability of that evidence, despite instructing myself carefully on the law as articulated by the Supreme Court of Canada in W.(R.), supra.
[64] Second, although corroboration is not required and often not present in these types of cases as the reality is that sexual predators do not make a habit of assaulting their victims in
public, this is a case where some corroborative evidence could reasonably have been expected but yet does not exist. Even on W.A.’s evidence, the repeated sexual abuse at the arena took place while, at least sometimes, public skating was taking place in close proximity, albeit on the other side of a door that W.A. stated was closed. Such a brazen assault at a workplace, door closed or not, over and over again, with members of the public nearby, is difficult to reconcile with common sense. This factor weighs against the credibility of W.A.
[65] Third, I have concerns about the plausibility of the incidents that allegedly occurred in the vehicle while driving between Mount Forest and Durham. I find it difficult to accept that D.W. was able to do what W.A. described while, according to her evidence, he was at times driving “full speed”, at least 80 km/hr or so, on a highway, in the winter. This factor also weighs against the credibility of W.A.
[66] Again, this was a close call. If this was a civil case, I would have found that the burden of proof has been met. But the three factors listed above, taken collectively, make me conclude that the criminal standard of proof has not been met. I am not sure. I have a reasonable doubt.
CONCLUSION
The Verdicts are:
Count 1 – not guilty
Count 2 – not guilty
Count 3 – not guilty
Count 4 – not guilty
Count 5 – not guilty
Count 6 – not guilty
[67] Nothing in these Reasons for Judgment is meant to suggest that either W.A. or M.A. deliberately lied in throughout their testimony in Court. And nothing in these Reasons denigrates from the solid police investigation conducted in this case by an experienced member of the OPP. The burden has simply not been met.
Conlan J.
Released: February 7, 2013
COURT FILE NO.: CR12-175
DATE: 20130207
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
D.W.
Defendant
REASONS FOR JUDGMENT
Conlan J.
Released: February 7, 2013