COURT FILE NO.: 11286 DATE: 2014/07/07
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
M. Potter, for the Crown Attorney
- and -
G.T.M.
W. Libis, for the accused
HEARD: January 7, 2014
Restriction on Publication
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.
BRYANT J.:
REASONS FOR JUDGMENT
I. Indictment
[1] G.T.M. was charged with two Criminal Code offences that between January 1, 2006 and December 31, 2006 at the city of London:
(1) he did, with a part of his body for a sexual purpose, directly touch the body of a person under the age of 14 years, namely M.G., contrary to s. 151 of the Criminal Code; and,
(2) he sexually assaulted M.G. contrary to s. 246 of the Criminal Code.
A single act was the factual basis for each count.
II. General Comments
[2] I make a few general observations prior to my analysis of the evidence. I have applied the Supreme Court of Canada’s decision in R. v. Lifchus, [1997] 3 S.C.R. 320 in connection with the Crown’s burden of proof.
[3] Secondly, the accused testified and I applied the principles set out in R. v. W.(D.), [1991] 1 S.C.R. 742 and R. v. S.(J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152 concerning my assessment of the accused’s evidence.
[4] Thirdly, the Crown’s case in relation to proof of the essential elements of an offence rested on the evidence of a 13-year-old complainant concerning conduct that allegedly occurred between January 1, 2006 and December 31, 2006, at the city of London when the complainant was six years old. The preliminary hearing was held on November 12, 2012 and the trial was held on January 7, 2014. The complainant’s young age cannot and must not, alone or in combination with other circumstances, be permitted to lower or lessen the standard of evidence that is required in order for the Crown to meet its burden of proof beyond a reasonable doubt.
III. The Re-election
[5] The accused elected to be tried by a court composed of judge and jury. Counsel appeared before me prior to jury selection and informed the court that the complainant did not know the accused’s name but knew him as “uncle sneaky pants”. It was agreed by counsel that the complainant did not know the origins of the name “uncle sneaky pants” and that she did not link the accused’s nickname to any prior or subsequent misconduct. M.P., the complainant’s mother, knew the accused by the name “Smurf” but she did not know its origin or associate the nickname with bad or immoral misconduct.
[6] Counsel were concerned that a reference to the accused as “uncle sneaky pants” before the jury may prejudice the accused because the jury may infer that Mr. G.T.M. was untrustworthy or a person of bad moral character. Counsel agreed that the complainant and her mother would simply refer to the accused as Mr. G.T.M. and thereby avoid any adverse inferences because of the accused’s nickname. M.G. and M.P. referred to the accused as “Mr. G.T.M.” throughout the trial and no reference was made to either nickname.
[7] The accused re-appeared before me prior to jury selection and re-elected to be tried by a judge without a jury. The court made an order excluding witnesses.
IV. The Evidence
(a) The Complainant, Siblings, and Family
[8] The Crown alleged that Mr. G.T.M. touched M.G.’s vagina with his tongue when she was six years old.
[9] M.P. and S.P., the complainant’s mother and stepfather, were married for eight of their ten-year relationship. M.P. testified that S.P. was in jail for approximately seven years of their ten-year relationship. In 2006, their children, N.P., M.G. and T.P. were approximately eight, six and five years old when the alleged incident occurred. The complainant was 13 years old when she testified at trial. M.P. was pregnant in early 2006 until the birth of her daughter A.P. in March 2006. Three more siblings were born after A.P.
[10] In 2006, M.P.’s grandmother, W.G., lived with the M.P./S.P. family because W.G. had custody of the children pursuant to a Children’s Aid Society (“CAS”) order. The grandmother lived with the M.P./S.P. family until early 2006. The CAS order was varied in or about June 2006. The new order granted custody of the children to their mother M.P.
[11] M.G. has lived with a foster family for the past three years. M.G. visits her siblings about twice a week and visits her mother from time to time. M.G. likes school and her favourite subject is Mathematics.
[12] In 2006, the M.P./S.P. family rented a single detached house located at C[…] Road in the city of London. The house has a side door entrance. Upon entering the side door, one walks up a few steps to the main floor or walks down the stairs to the basement. A kitchen, bathroom, living room and two bedrooms were on the main floor. Laundry facilities and a furnace were in the basement. Two rooms were created in the basement by hanging sheets from the ceiling. There was a couch and one or more beds/mattresses in the basement.
[13] M.G. said that Mr. G.T.M. was a friend of her parents. She was unsure whether Mr. G.T.M. lived at C[…] Road but she said that he was present in the house quite a bit. She would see Mr. G.T.M. at their home a couple times a week. The accused would take M.G. and her siblings to a nearby variety store located across the street on C[…] Road or to a park. M.G. said Mr. G.T.M. was pretty close to the children and that he would babysit the complainant and her siblings. Friends of M.G.’s stepfather would also visit the house on C[…] Road but M.G. did not see them as frequently as she saw Mr. G.T.M.. M.G. said she did not know her stepfather’s friends like she knew Mr. G.T.M..
[14] The complainant described Mr. G.T.M. as a small white man who was “kind of like bald”, with a little bit of thin facial hair on the side of his cheeks, and had “kind of like crooked teeth”. In cross-examination, she agreed that the accused was medium height. She saw Mr. G.T.M. at her grandparents’ residence once or twice, which was more than a couple years after M.G., her siblings, and mother had been evicted from the C[…] Road residence. M.P., the complainant’s mother, testified that Mr. G.T.M. visited the children when they resided at their grandparents’ home.
[15] Mr. G.T.M. said he visited the children when they lived at a shelter and he drove the children to school a few times when they lived on Bridlepath. He also visited with them at the residence of their paternal grandparents.
(b) The Alleged Assault
[16] Mr. G.T.M. looked after the children while M.G.’s parents were out. It was the complainant’s evidence that her brother, T.P., was bothering her, so she went downstairs to tell Mr. G.T.M.. M.G. testified that Mr. G.T.M. told her to go back upstairs but if T.P. continued bothering her, she should return to the basement and sleep downstairs. M.G. said that T.P. continued bothering her when she returned upstairs, so M.G. went downstairs to the empty part of the basement. Mr. G.T.M. told her that she could sleep downstairs. She said she walked to her bed and laid down. The complainant thought she was wearing a two-piece pajama set.
[17] It was the complainant’s evidence that Mr. G.T.M. said to her: “This is going to happen to you when you’re older, and tell me if it feels good or bad”. M.G. testified that Mr. G.T.M. pulled down her pajama bottoms and licked her private parts. M.G. estimated that the sexual touching lasted one or two seconds. The complainant did not say anything to the accused when this occurred. After the touching, M.G. pulled her pajama bottoms up and went to sleep on the mattress.
[18] M.G. was asked in cross-examination about the duration of the sexual contact and whether she noticed anything unusual about Mr. G.T.M. at the time the incident occurred:
Q. This incident you have described about this licking, your estimate of the time that this incident went on for, I’m going to suggest to you, was one to two seconds. That’s what you said in your statement, right?
A. Yes.
Q. Well, that’s a guesstimate, right?
A. Yes.
Q. But that guesstimate is based on the fact that it happened very quickly, and it was over very quickly, right?
A. Yes.
(c) M.P.’s Evidence
[19] M.P., the complainant’s mother, testified that she lived with her children in a rental house located at C[…] Road. The house was located adjacent to a railway crossing, which was less than a block from the busy D[…] Street and C[…] Road intersection.
[20] It was M.P.’s evidence that she met Mr. G.T.M. when he visited the residence on C[…] Road in early 2006 prior to the birth of her daughter A.P. She said that Mr. G.T.M. lived with M.P.’s family on C[…] Road and that he slept either upstairs on the living room couch or downstairs if there was a free room in the basement. M.P testified that her children did not appear to be afraid of the accused and that her children got along with him.
[21] M.P. received an eviction notice in late November 2006 and the family moved to a shelter. Mr. G.T.M. said the shelter was located on Riverside Drive. M.P. believed that Mr. G.T.M. and his girlfriend rented C[…] Road after she and her children were evicted in November 2006. The family lived at the shelter for an unspecified period but I estimate from the evidence that it was less than a year. The family then moved to Marconi Boulevard, where they resided for approximately seven months. The family next moved to Bridle Path and then moved to live with her husband’s parents in 2009.
[22] Mr. G.T.M. and M.P.’s cousin, R.V., worked part-time at Medland Movers. M.P. said Mr. R.V. periodically stayed downstairs at C[…] Road for a period of time. M.P. said Mr. R.V. was 5’8” with a stocky build, dark brown hair, with a kind of shaved head, but that the hair on his head was visible. M.P. said Mr. R.V. and Mr. G.T.M. were not similar. She said Mr. G.T.M. was thinner in 2014 than he was in 2006.
[23] It was M.P.’s evidence that there were two defined sleeping areas in the basement. She said that M.G. had a bedroom on the main floor but later moved to a sheet partitioned room in the basement. M.G. moved back upstairs when M.P. and her husband, S.P., took over the bedroom in the basement.
[24] S.P.’s cousin M., referred to as “O’D”, also stayed at C[…] Road for a short period. They also had a friend named J. who visited C[…] Road and he would sometimes spend a night. J. formed a relationship with M.P.’s cousin C. but they did not live at the C[…] Road residence.
[25] It was M.P.’s evidence that the accused stayed at the house on C[…] Road commencing around April 2006. She said Mr. G.T.M. assisted M.P. with child care if she had to do grocery shopping or some other task. She recalled an evening when Mr. G.T.M. was asked to watch over her children because she went out with her husband.
[26] M.P. said that Mr. G.T.M. visited her and the children while they lived with S.P.’s parents for a short period.
(d) The Complainant’s Evidence
[27] M.G. was cross-examined about her recollection of the alleged incident, her description of Mr. G.T.M., the location of her bedroom at the house on C[…] Road, her recollection of the schools she attended or teachers who taught her, and other collateral matters.
[28] M.G. was uncertain if her grandmother W.G. resided at the rental house on C[…] Road. She did not know if her uncle R.V. lived with the family at C[…] Road. She did not remember the time of year in which the incident occurred. She testified that Mr. G.T.M. was babysitting because she did not remember her mother being present when the incident occurred at the C[…] Road residence. She said that Mr. G.T.M. took her and her two siblings to the variety store across the street and that on one of those trips to the variety store, her brother T.P. was struck by a car on C[…] Road and was seriously injured. M.G. could not remember if T.P.’s accident occurred before or after the licking incident by the accused.
[29] M.G. admitted it was difficult to remember bits and pieces of what was going on at C[…] Road. M.G. could not recall where everyone slept but was firm that she and N.P. slept in the basement. M.P. testified that she had a fixation about cleanliness and that “the bedrooms were swapped around between the kids all the time.” It was M.P.’s evidence that M.G. had a bedroom on the main floor and at one point M.G. moved to a bedroom in the basement.
[30] M.G. testified that Mr. G.T.M. licked her private parts. M.G. said that Mr. G.T.M.’s head was shaved and that he had some facial hair but that he did not have a moustache. A photograph of the accused taken in the month of July 2006 showed that Mr. G.T.M. had hair on the side and back of his head but that he was bald on the top of his head.
[31] The large photograph of Mr. G.T.M. (Exhibit 1) taken before the trial shows that he is bald at the top of his head and that the rest of his head is shaved. M.G. was shown a photograph of Mr. G.T.M. with a dog called “Danger” (Exhibit 4). M.P. said the dog was with the family for the month of July 2006 and that the photo was taken in July 2006 at the C[…] Road residence.
[32] Mr. G.T.M. testified that he left C[…] Road and moved to Kincardine in January 2007. He shaved his head approximately six to eight months after he moved to Kincardine in January 2007.
[33] In Exhibit 4, the accused has hair on the side of his head but he has no hair on the top of his head. When M.P. was asked to describe Mr. G.T.M. while he was residing with the family at C[…] Road, she described him as bald and thin. M.P. said the accused has not changed much since 2006.
(e) Mr. G.T.M.’s Evidence
[34] Mr. G.T.M. is 42 years old. Mr. G.T.M. said that he met S.P. at a party and they exchanged telephone numbers. The accused first met M.P. in April 2006. M.P. allowed the accused to reside at C[…] Road on the understanding that he would babysit her children. Mr. G.T.M. agreed to babysit the children because he had no place to live, was unemployed and was in the midst of family court proceedings with his former partner. Mr. G.T.M. babysat the children whenever M.P. went out for a couple of hours or for a day.
[35] Mr. G.T.M. said he moved into C[…] Road in April 2006. He started a part-time job at Medland Movers in or about July 2006. It was his evidence that he lived with the M.P./S.P family at C[…] Road until the family was evicted around the first week of December 2006. He continued to live at the C[…] Road residence after the family was evicted. He moved to Kincardine in January 2007.
[36] The accused said the children were eight, six and three years old when he moved into the C[…] Road residence. He said his relationship with the children was all right at the beginning but that the children were not well-behaved and were undisciplined. He said the children were out of control. He described the children as “very, very bad.” He said that he frequently looked after the children during the seven-and-a-half months he lived with the family at the C[…] Road residence.
[37] Mr. G.T.M. said that the incident surrounding M.G.’s complaint that her brother T.P. was bothering her did not occur. Mr. G.T.M. denied licking the complaint’s vaginal area.
[38] Mr. G.T.M. said he stayed in the basement of the house. W.G., the grandmother, lived in the main area of the basement and he slept near the laundry and furnace area. He said M.P. lived upstairs with her three children. He said the children were not allowed to go downstairs at night when people were sleeping. When the grandmother W.G. moved out of the house, he moved to the main living quarters of the basement. He said that M.P. lived downstairs for one or two weeks in the summer of 2006 because the house was very hot.
[39] Mr. G.T.M. started using drugs in January 2005 when he was diagnosed with a fatal illness. He conceded that he sometimes used cocaine and crack cocaine with M.P. and S.P. and on one occasion he used a drug called “Special K”. He said there was a house rule not to use drugs while the children were around. He said he was not addicted to drugs but only took them when he had money to buy drugs. He said that he did not like doing drugs and noticed that cocaine was addictive. He acknowledged that when he was under the influence of drugs his mind was not clear.
[40] Mr. G.T.M. said other people lived at C[…] Road. He said R.V., M.P.’s cousin, also slept in the basement and worked part-time at Medland Movers. He described R.V. as 5’8” to 5’9” tall, a body type that was neither thick nor thin, with a shaved head.
[41] Mr. G.T.M. said that D., a friend of S.P., also stayed in the basement for one- and-a-half to two months. He said D. also had a shaved head. On one occasion, S.P.’s friend J. and Mr. G.T.M. fought over drugs. As a result, the accused left the residence during the day but returned each night to sleep in the shed located behind the house. He lived in the shed for two weeks until the family was evicted. Mr. G.T.M. said that he moved back into the house and cleaned up the damages caused by the children until he left C[…] Road on January 21, 2007. He then moved to Kincardine where he resided for the next year-and-a-half. He said he bought a green coloured car while living in Kincardine.
[42] Mr. G.T.M. said S.P., the complainant’s stepfather, contacted him about a year after he had moved to Kincardine. Mr. G.T.M. visited the family at a shelter. Mr. G.T.M. said he did not visit the family in 2008 but re-established contact with the M.P./S.P. family when the family lived on Bridle Path.
[43] It was Mr. G.T.M.’s evidence that in early 2009, M.P. and S.P. broke up and that he assisted M.P. because she had helped him in 2006. He said he drove the children to school several times in 2009. Mr. G.T.M. said he also visited M.P. and the children while they were living at their paternal grandparents’ residence. He said he last saw the children at their grandparents’ residence.
[44] The accused said he “got into a verbal fight with M.G.” in the late summer of 2009 at the grandparents’ home. He said he never visited the children after his “last fight with M.G.” He said M.G. was approximately ten years old when they had their penultimate verbal fight. He subsequently saw M.P. on one occasion at a Metro grocery store in 2011.
[45] Mr. G.T.M. acknowledged that he lived with the family for approximately seven or eight months in 2006 until the family was evicted in December 2006. He was asked in cross-examination why he had further dealings with the family when the children were so misbehaved. He responded:
Because I’m a nice guy, and that’s what got me into trouble with them to begin with and why I was stepped on, but I wasn’t going to have any contact with them, and that’s not me.
[46] Mr. G.T.M. said that he played with T.P. during the summer the family lived at the paternal grandparents’ residence. He also saw M.G. during these visits and he described his relationship with M.G.:
And I basically had nothing to say to M.G. She knew at the time not to speak to me whatsoever. I played with T.P. for the summer, with L.P. and T.P. [the grandparents] watching, and M.P., out on the patio, and M.G. knew not to more or less say anything to me whatsoever. I had nothing left to say to her, nor N.P.
V. The Position of the Parties
(a) Position of the Crown
[47] Crown counsel acknowledges that M.G. is a young witness who alleged that Mr. G.T.M. sexually assaulted her when she was six years old. The prosecutor submits that the complainant was credible and that her evidence that she had been sexually assaulted was not successfully challenged. Further, there was no suggestion that the complainant fabricated her evidence about being assaulted or that she was not telling the truth as she believed the facts to be. There was no evidence that the complainant disliked the accused.
[48] Crown counsel further submits that the complainant was not confused about the identity of the perpetrator. The complainant and the accused knew each other and the accused admitted that he babysat the children. The complainant identified Mr. G.T.M. as the person who performed the sexual activity in the basement while he was babysitting M.G. and her siblings. M.G. said the perpetrator was bald and the accused did not have hair on the top of his head.
[49] Counsel argues that the complainant’s evidence was clear and convincing that Mr. G.T.M. was the person who licked her vagina. Crown counsel further submits that Mr. G.T.M.’s evidence does not raise a reasonable doubt.
(b) Position of the Defence
[50] It is the position of the defence that Mr. G.T.M. did not sexually assault the complainant and that the complainant mistakenly identified the accused as the person who sexually assaulted her. In the alternative, the complainant was not a truthful or reliable witness. Defence counsel submits that the complainant was mistaken in her identification of the accused as the assailant because Mr. G.T.M. did not have a shaved head or facial hair as shown in the photograph taken in July 2006. Defence counsel alleged that R.V. had a shaved head and was thin like the accused and that R.V. could have been the person who assaulted the complainant.
[51] Counsel for Mr. G.T.M. submitted that the complainant’s description of the assault lacked details of the surrounding circumstances and that her evidence was not corroborated. Counsel argues that the accused did not have a motive to commit the offence. Counsel further submits that the failure of the complainant to recall details of the incident does not reduce the Crown’s burden of proof: R. v. Plews, [2010] O.J. No. 4938 (S.C.), at para. 331.
[52] Defence counsel further submits that the Crown’s evidence does not prove beyond a reasonable doubt that Mr. G.T.M. sexually assaulted M.G. In the alternative, defence counsel submits that the evidence of Mr. G.T.M. raises a reasonable doubt about his guilt and as such he should be found not guilty.
[53] Defence counsel states that Mr. G.T.M.’s emotional response during his testimony because of the death of a former employer a few days prior to the trial should not undermine his defence. Finally, the court should apply W.(D.) and acquit Mr. G.T.M. because Crown counsel has failed to prove his guilt beyond a reasonable doubt.
VI. Analysis and Decision
[54] There are two conflicting versions of the incident. M.G. testified that Mr. G.T.M. licked her vagina. Mr. G.T.M. testified that the incident did not happen.
[55] Appellate courts have instructed trial judges that a criminal trial is not a credibility contest. The mere belief of the complainant or the disbelief of the accused is not outcome determinative because it ignores the principle that the prosecution must prove the accused’s guilt beyond a reasonable doubt. It is wrong to select one version of the evidence over the other (R. v. W.(D.), [1991] 1 S.C.R. 742, at p. 759-60; R. v. Nadeau, [1984] 2 S.C.R. 570; R. v. M. (P.), [1983] O.J. No. 579 (C.A.)), because the issue is not whether the complainant or the accused is more credible, but whether the Crown has proven all the essential elements of an offence beyond a reasonable doubt R. v. Y. (C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 6; R. v. V.Y., 2010 ONCA 544, aff’d 2011 SCC 22, [2011] 2 S.C.R. 173.
[56] The Supreme Court of Canada has consistently held that the three-step W.(D.) formula is not a mandatory instruction Y.(C.L.), at paras. 7-9; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23; R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152, at paras. 8-14; R. v. Vuradin, 2013 SCC 3, [2013] 1 S.C.R. 14. In R. v. S.(W.D.), Cory J. stated: “Obviously, it is not necessary to recite the W.(D.) formula word for word as some magic incantation.” In S.(J.H.), at para. 13, Binnie J. for the court wrote that the W.(D.) instruction should not have attributed to it a “level of sanctity or immutable perfection” that its author never claimed.
[57] It is necessary to assess the testimony of each witness in the context of all the evidence. The court must acquit the accused if the court accepts the accused’s evidence that he did not commit the offence. Also, I must acquit the accused even if I do not believe the accused’s evidence, but am left in a reasonable doubt by it. Finally, even if Mr. G.T.M.’s evidence does not raise a reasonable doubt, I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[58] The conflicting evidence of the two principal witnesses is irreconcilable. This is not an exercise in considering two conflicting versions of evidence in isolation and choosing one. The court must assess the evidence and determine whether the Crown has proven the guilt of Mr. G.T.M. beyond a reasonable doubt.
[59] I find that M.G. gave her evidence in a straightforward manner. She informed the court of the facts she remembered. If M.G. could not recall a fact or surrounding circumstances, she simply stated that she did not remember. I refer to several excerpts that illustrate M.G.’s responses to questions she was asked concerning the assault:
And he said that I could just sleep down there, and then I was - um - going to go to sleep, and then he started to pull down my pants. And he said that this was going to happen when I’m older, and tell me if it feels good or bad and he licked my private parts.
I find that a six-year-old child would not be capable of inventing these words that she attributed to the accused.
[60] M.G. did not embellish her evidence when responding to questions. For example, when M.G. was asked what happened after Mr. G.T.M. licked her private parts, she responded:
I just put my hand down and pulled up my pants, and then I - I can't remember what happened after that.
[61] M.G.’s evidence about the sexual activity was given without exaggeration. For example, the complainant testified that the sexual touching lasted one or two seconds.
[62] The complainant responded to questions in a direct manner. For example, she was asked by defence counsel whether there was anything unusual about the accused’s behaviour while he committed the assault:
Q. And did you – when that happened, did you notice anything about Mr. G.T.M.? Was there anything about him that was unusual?
A. Well, that he would do that.
Q. Other than that?
A. I can't remember.
[63] M.G. was asked about her relationship with Mr. G.T.M..
Q. Is your memory that you got along with Mr. G.T.M. pretty well?
A. For the most part.
Q. What do you mean, “for the most part?”
A. We would, yeah. We would get along pretty good, like....
Q. Would it be fair to say, M.G., that really, you don’t really have any memories of whether you got along or not, and you think it must have been okay, because you don’t have those memories, is that right?
A. Well, I – like, I do remember, like we would get along pretty - pretty good, so yeah.
[64] The complainant’s responses in her examination in chief or cross-examination did not indicate any animosity toward Mr. G.T.M. as she believed she had a good relationship with him while he was her babysitter. M.P., the complainant’s mother, testified that her children did not appear to be afraid of Mr. G.T.M. and that they got along well with him.
[65] Defence counsel cross-examined the complainant about collateral matters to test her memory. For example, she was asked whether there was a garage/shed behind the house at C[…] Road. The evidence established that the family rented the house but that the garage or shed was not part of the leased premises. Mr. G.T.M. knew that the garage/shed was not used by the family because he slept in the shed after his fight with J. over drugs. In my view, the complainant’s lack of knowledge of the garage/shed does not undermine her evidence that Mr. G.T.M. sexually assaulted her.
[66] M.G. was asked in cross-examination whether her sister A.P. was born while the family lived at the residence on C[…] Road. The complainant answered that she did not know. It is my view that M.G.’s lack of memory where she lived when her younger sister was born does not show that she was an unreliable witness in the context of all the evidence.
[67] A cross-examination of M.G. showed she did not recall the street name where she lived until she was driven over the C[…] Road railway crossing during the police investigation. M.G. recalled living with her grandmother W.G. but she could not recall if W.G. lived with the family at C[…] Road.
[68] The complainant was also cross-examined about the names of schools she attended when she lived on C[…] Road, Marconi, Bridle Path, or at her grandparents’ residence, or the names of her teachers. M.G. was unable to provide the names of the schools she attended and recalled the name of only one of her teachers.
[69] M.G. attended school(s) when she lived on C[…] Road and at other residences over a period of three or four years. The record does not reveal the exact number of schools she attended or where they were located. M.G. was raised in a chaotic home environment and lived in a shelter and several other places after she left C[…] Road. The inability of M.G. to remember a number of collateral matters, such as the schools she attended or the names of her teachers, is not critical to my assessment of the reliability of the complainant’s evidence in the context of the surrounding circumstances.
[70] Defence counsel also cross-examined the complainant as to whether she remembered if the accused had a car while he lived at the C[…] Road residence for the purpose of testing the credibility of the complainant’s evidence.
Q. Now, while you’re on C[…] Road, do you remember that Mr. G.T.M., one of the things you remember about Mr. G.T.M. is that he had a greenish car, right?
A. A green, bluish car, yes.
Q. And what, he’d park in the driveway on C[…] Road?
A. I can’t remember.
Q. Okay, but you do remember that he had that car while you were on C[…] Road?
A. He - I'm not sure if he had it when - while we were living on C[…] Road, but I do remember that car.
[71] Defence counsel also cross-examined M.P., the complainant’s mother, about the accused’s car:
Q. While he was residing with you at C[…] Road, did he have a car?
A. Yes.
Q. Was that that green car?
A. Yes.
Q. You’re sure about that? Here’s why I'm asking that. I mean things have happened. This was quite a long time ago when you lived at C[…] Road, right?
A. Mm-hmm.
Q. Correct?
A. Yes.
Q. And it’s hard to remember. Sometimes things flow together in your mind as to what a person did at any given time, right?
A. Yes.
Q. And whether a person had a car or not at that time, or sometime later, it’s hard to remember that now, isn’t it?
A. I specifically remember the green car at L.P.’s [the grandfather’s] house. That is my only recollection of that car.
[72] Mr. G.T.M. testified that he purchased the car while he was working in Kincardine. M.P.’s recollection of the green car at L.P.’s house occurred several years after the family was evicted from C[…] Road. The complainant and her mother M.P. did not guess as to when they saw the bluish/green car. Mr. G.T.M.’s evidence confirms the complainant and M.P.’s observation of the accused’s automobile after the family no longer lived at C[…] Road.
[73] I find that defence counsel’s cross-examination of the complainant on collateral matters was proper. However, the cross-examination did not undermine the credibility of the complainant or the reliability of her evidence. I further find that the complainant’s short responsive answers show that if she did not recall a fact, she simply said so.
[74] The Supreme Court of Canada noticed a change in the attitude of the law toward the evidence of children and that it may be wrong to apply adult tests for credibility to the evidence of children: R. v. W.(R.), [1992] 2 S.C.R. 122, at para. 24. As noted earlier by Wilson J. in R. v. B.(G.), [1990] 2 S.C.R. 30, at para. 48:
While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. … The credibility of every witness before the court must, of course, be carefully assessed but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young persons.
[75] A critical cross-examination of the complainant was directed at her identification of the accused as the person who assaulted her. The complainant was shown two photographs of Mr. G.T.M.. In the first photograph, taken just before trial, the accused had a shaved head. In the second photograph, which was taken in 2006, the accused had hair on the sides and back of his head but none on the top of his head.
[76] The cross-examination of the complainant concerning the photograph taken in 2006, which shows that Mr. G.T.M. had hair on the sides and back of his head, is set out below:
Q. Is that a picture – is Danger in that picture, with sunglasses on?
A. Yes.
Q. Is that Danger?
A. I’m not sure if that’s Danger, but I do remember having a dog Danger?
Q. All right, and who’s the person beside the dog Danger?
A. Mr. G.T.M..
Q. And are you sure that’s Mr. G.T.M.?
A. I think it is.
Q. Okay, you’re not certain, is that fair?
A. Yes.
Q. And I suppose the reason is part of the reason is that he seems to have hair on his head as opposed to being shaved, correct? Correct?
A. Yeah.
[77] The accused was asked in cross-examination how he would describe himself in 2006:
Q. And, but if you were to describe yourself back in 2006?
A. Correct.
Q. You might even choose the word; I was bald, or balding, correct?
A. Well, bald is being bald, like if you have a bald head, you have a bald head. I had lots of hair on the sides, I just had no hair in the centre of my head, so I just – I wouldn’t technically call me bald. So, I’d say, you know, I had a shiny spot in the centre, but that was about it, so....
[78] During cross-examination, Mr. G.T.M. confirms that M.G. knew he had hair on the sides of his head in 2006 when he lived with the family:
Q. And in the photograph, we see that you do have some hair at the sides of your head, correct?
A. Correct.
Q. But I suggest that your hairline in 2006 is the same as it is now in terms of you didn’t have hair at that point on the top of your head?
A. In the centre, you mean?
Q. In the centre, on the top of your head?
A. Yes. Yes, I was bald.
Q. Right, so if you would describe yourself the way you were in 2006 as being bald, correct?
A. Well, I had a lot of hair on the sides. And actually, M.G. used to pick on me about it too. She’s like, you look funny, so you have hair on the sides and you’re bald in the centre. I didn’t really know how to take that, so....
[79] Mr. G.T.M. acknowledges that M.G. knew he had hair on the sides and back of his head while he lived at C[…] Road. Mr. G.T.M. re-established contact with the family in 2007 when they lived at the shelter. Mr. G.T.M. testified that he drove the children to school when they lived on Bridle Path and that he saw the children at the grandparents’ residence in 2009. Thus, the complainant’s memory that Mr. G.T.M. had a shaved head is consistent with how the accused looked in 2007 and 2009. I find that the complainant simply forgot that Mr. G.T.M. had hair on the sides and back of his head in 2006 when she testified in 2014.
[80] Defence counsel cross-examined the complainant on the reliability of her evidence. I reproduce excerpts from the complainant’s cross-examination:
Q. And you’re trying to tell us here everything you can possibly remember, right?
A. Yes.
Q. And the hard part is whether they're accurate memories or not, right?
A. Yes.
Q. And you, if you didn't believe them to be correct, you wouldn’t tell us, right?
A. Yes.
Q. But the real question is whether they’re accurate memories or they’re not, isn’t it?
A. Yes.
Q. And certainly you believe what you have said is accurate, right?
A. Yes.
Q. To the best of your ability, right?
A. Yes.
Q. Is your memory that you got along with Mr. G.T.M. pretty well?
A. For the most part.
Q. What do you mean, “for the most part?”
A. We would, yeah. We would get along pretty good, like....
Q. Would it be fair to say, M.G. that really, you don’t really have any memories of whether you got along or not, and you think it must have been okay, because you don’t have those memories, is that right?
A. Well, I – like, I do remember, like we would get along pretty - pretty good, so yeah.
[81] In his cross-examination, defence counsel suggests that the complainant was honestly telling what she believed to be accurate but she was mistaken that it was the accused who assaulted her. The complainant’s evidence was that she held no animus toward the accused and she got along pretty well with him. Counsel did not suggest in cross-examination that the complainant was not telling the truth or that she was a liar. I will address the inconsistency between the cross-examination of the complainant and the accused’s evidence.
[82] Mr. G.T.M. acknowledged that he lived with the family for approximately seven or eight months in 2006 until the family was evicted in December 2006. He was asked in cross-examination why he had further dealings with the family when the children misbehaved. He responded:
Because I'm a nice guy, and that's what got me into trouble with them to begin with and why I was stepped on, but I wasn’t going to have any contact with them, and that’s not me.
[83] Mr. G.T.M. said that the first day he babysat the children, N.P. and M.G. blackmailed him about his probation. When asked in cross-examination if he was fond of the children since he took them to the park, his response was: “there’s one thing being fond of the children and there’s another thing being blackmailed by them.” He claimed that W.G., the grandmother, told him that the children were evil. No objection was made to the admissibility of this hearsay evidence.
[84] Mr. G.T.M. said that he played with T.P. during the summer the family lived at the paternal grandparents’ residence. He also saw M.G. during these visits and he described his relationship with M.G. as follows:
And I basically had nothing to say to M.G. She knew at the time not to speak to me whatsoever. I played with T.P. for the summer, with L.P. and T.P. [the grandparents] watching, and M.P., out on the patio, and M.G. knew not to more or less say anything to me whatsoever. I had nothing left to say to her, nor N.P.
[85] Mr. G.T.M. said he “got into a verbal fight with M.G.” in the late summer of 2009 at the grandparents’ home. He said he never visited the children after his “last fight with M.G.” He said M.G. was approximately ten years old when they had their penultimate fight.
[86] Mr. G.T.M. last saw the children at the grandparents’ residence and he said that M.G. knew not to speak with him. I find that Mr. G.T.M.’s comments about his relationship with M.G. were unusual given that he was a mature adult who was the former babysitter of a nine or ten year old child.
[87] Crown counsel asked Mr. G.T.M. in cross-examination:
Q. You feel that M.G. is not being truthful about the past with you, correct?
A. I've never known M.G. ever to be truthful.
Q. And you feel that M.G. and her siblings have essentially been bad people from day one?
A. Well, they're in Children's Aid now, aren't they?
[88] It is illogical to blame the children because of the failure of the parents to properly care for them. Crown counsel asked Mr. G.T.M. if the incident occurred:
Q. And you certainly never said anything to M.G. along the lines of, this is something that’s going to happen to you when you’re older, and let me know if you like it?
A. I never said anything like that to M.G. ever. The only thing I’ve ever said to M.G. was, why did you do that? And the response I always got back was shut your mouth, or you’re going to get it. And I’ve heard it for years, and I got tired of it …
[89] Mr. G.T.M. said M.G. was a malicious six-year-old child because “you don’t threaten your babysitter at the age of six by using his probation against him”. It was Mr. G.T.M.’s evidence that he ended the relationship with M.G. because her mother M.P. did not correct her daughter’s bad conduct.
[90] Defence counsel in cross-examination suggested that the complainant did not have a good memory or was confused about past events. Counsel did not suggest that the complainant was a malicious person who swore or threatened her babysitter. As a result, the complainant was not given an opportunity to respond to the allegations made by the accused.
[91] In summary, I find that M.G. did not have a motive to fabricate her evidence and that she testified as to what she could remember. Whenever M.G. did not remember a fact suggested to her in cross-examination, she simply responded that she did not recall. M.G. was calm and answered questions asked in a straightforward manner. The complainant was not antagonistic toward the accused. Apart from the complainant’s evidence that the accused had a shaved head in 2006, which was contradicted by the photographic evidence, there were no important inconsistencies or contradictions in the complainant’s evidence.
[92] The testimony of a young witness is to be understood with an eye to common sense as exactitude and detail may be missing from a child’s recall as the world is experienced differently from an adult: see Plews, at paras. 329, 335.
[93] The sole critical issue raised was the reliability of M.G.’s evidence that the accused was the person depicted in the photograph showing he had hair on the sides and top of his head. She knew the accused’s name and his responsibility as her babysitter whenever her mother went out of the house. There was a close relationship between the children and the accused as shown by his visits with the children after he left London and began work in Kincardine. M.G. forgot that the accused had had hair on the sides and back of his head. In meetings with the accused in 2007 and 2009, Mr. G.T.M. did have a shaved head and that was how she remembered him in 2014. M.G. never wavered in her testimony that the person who licked her vagina was her babysitter, Mr. G.T.M..
[94] The accused’s alternative defence is that the assault did not happen, but if it did happen, R.V. was the assailant. There are several problems with this proffered defence. First, M.G. did not identify R.V. as the person who assaulted her. Secondly, I accept M.P.’s evidence that R.V.’s hair was visible and that R.V. and Mr. G.T.M. were not similar in build. Thirdly, there was no evidence that R.V. committed the assault except for Mr. G.T.M.’s opinion speculative opinion that R.V. committed the assault.
[95] It was Mr. G.T.M.’s evidence that M.G. was a malicious 13 year old girl who was untruthful and threatened him. He stated:
Q. So you are saying that that incident, it’s not a matter of you don’t recalling it, it just never happened?
A. It never ever happened. I’ve listened to M.G. up until 2010 in her favourite words tell me every time I told her to do something that you’re going get it. The relationship ended in 2009 with M.G. telling me, ‘I’ve told you for many fucking years that you were going get it, and when I get older you’re going to get it.’ I didn’t take too kindly to those words from M.G., and I was tired of M.P. doing nothing about it, and I ended it right there.
[96] Mr. G.T.M.’s assessment of M.G. is contrary to my assessment of the complainant. M.G. presented her evidence in a calm manner. She was a non-judgmental 13-year-old girl who answered the questions asked to the best of her ability. I do not accept Mr. G.T.M.’s characterization of the complainant.
[97] There was an inconsistency between the cross-examination of the complainant by defence counsel and the evidence of the accused about the character of the complainant. Defence counsel suggested the complainant mistakenly identified the accused as her assailant. In contrast, Mr. G.T.M. suggested she was a malicious young girl who threatened him. Since defence counsel did not cross-examine the complainant about the alleged threats or her malicious character, I did not have an opportunity to assess her responses to these allegations. In order that I not be misunderstood, Mr. G.T.M. was well represented by an experienced defence counsel.
[98] Mr. G.T.M. was upset for a moment when he disclosed that his former employer had recently passed. However, he continued his testimony without any difficulty.
[99] In R. v. D.(J. J. R.) (2006), 215 C.C.C. (3d) 252, at para. 53, Doherty J. A. of the Ontario Court of Appeal held:
An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.
[100] I reject the accused’s evidence and it does not raise a reasonable doubt in the context of the other evidence at trial that I do accept.
[101] I find the accused guilty beyond a reasonable doubt of sexually assaulting M.G. and that he did, with a part of his body, for a sexual purpose, directly touch the body of M.G., a person under the age of 14 years old. Mr. G.T.M. is guilty beyond a reasonable doubt of count 1 and count 2.
Justice A. W. Bryant
Released: July 7, 2014
COURT FILE NO.: 11286 DATE: 2014/07/07
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Plaintiff
- and -
G.T.M.
Defendant
REASONS FOR JUDGMENT
Justice A. W. Bryant
Released: July 7, 2014