COURT FILE NO.: CR-13-05 Orangeville
DATE: 20140401
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J.A. Defendant
Mr. Feldstein, for the Crown
Mr. Allman, for the defendant
HEARD: March 24 - 28, 2014
WEIN, J.
[1] J.A. was charged with sexual assault - two counts of touching for sexual purpose and threats of death. The events are said to have occurred around the summer of 2003, when J.A. was the live-in boyfriend of the mother of the victim, S. S. was five at the time.
[2] At the conclusion of the trial, I ruled that this was a case where, while I could not say that I disbelieved the complainant, I was not satisfied beyond a reasonable doubt of the guilt of J.A. and accordingly, he was found not guilty on all counts in the indictment. These are my reasons for that finding.
Overview of the Offences
[3] At the time these offences are alleged to have occurred, J.A. had moved in to a new home with S.’s mother. S. lived with them full time and J.A.'s daughter, T.1, lived with them on alternate weekends.
[4] The two girls were both about five years of age, and shared a bedroom with bunk beds on the upper floor next to the master bedroom. For at least part of the time, another friend of the mother, Uncle H., had the third bedroom. For a time, later in the fall, J.A.'s parents also resided in the house in the basement.
[5] S.'s evidence was that she was at home in the summer. She recalled that her mom had gone to work and she was eating cereal in the living room watching cartoons. J.A. was looking after her during the days while her mom was working. On the first occasion, J.A. told her to come to the master bedroom. She sat on the bed and he took off her pants and touched her vagina. This began to happen on many occasions, about three times a week.
[6] He would touch her vagina and she would have to put her mouth on his penis and then he would ejaculate on her. He would clean her off in the bathroom. Sometimes the touching occurred in her room (sometimes her Uncle H. was home sleeping in his room). On one occasion, J.A. attempted anal penetration, but she was upset and crying and he didn't continue. He would always tell her that if she told anyone he would hurt her whole family: he would say "I will kill your family, I will kill your mother, I will kill your father."
[7] She believed that he was capable of this, because he looked very strong and violent. He frequently went to boxing and she had heard him fight with her mom, which she found ‘loud’ and ‘scary.’ She was terrified of him.
[8] Sometimes she would cry after these events and go to Uncle H.’s room. He would see her cry, but she would just say that J.A. had yelled at her. Her Uncle H. did not really ask questions.
[9] As with many young victims, S. did not tell anyone about these events. J.A. moved out in the late fall, and her life continued.
[10] The first time she told anyone was to her girlfriend T.2 when they were in grade 8. She just told T.2 that she was touched by her stepdad. She didn't tell T.2 any details.
[11] Shortly after, she told her grandmother, to whom she was very close. She didn't tell her any details and told her she didn't want to tell anyone else. At her grandmother's insistence, she told her mother a day or so later but she felt her mother just ignored her.
[12] Sometime after, she wrote out a long and painful account entitled “FEELINGS", in which she expressed the wish she could tell her mom things, and revealed suicidal thoughts, which she said her friends had stopped. In the letter she revealed that “I was raped by J.A.. I told my mom and she says ‘Oh.’” She described the assaults and indicates that J.A.'s daughter T.1 was right beside her.
[13] Because she was missing a lot of school, and her mother had spoken to a social worker at her school, she was called in to discuss her attendance. In that interview she spontaneously told the social worker about the assaults. The details she described were consistent with her testimony at trial. She clarified to the social worker that while she had called it ‘rape’ before, what she meant was more like oral sex. The social worker indicated that S. was quite distraught but had a vivid recall of the events.
[14] Although S. said she did not want the Children’s Aid Society (“CAS”) called and said she would say it never happened if she didn't have to talk to anyone else, the matter was drawn to the attention of the CAS and from there to the police.
Assessment of the Evidence
[15] S. is now 16, and testified in a forthright and brave manner. While she had not wanted to go to court, and despite the clear pain of recalling details of the events, there was nothing in her evidence to suggest fabrication. She was articulate and thoughtful. Her recall of peripheral details and times was of course not perfect, but she was entirely credible in the manner in which she testified. None of the details she gave of the specific events changed in cross-examination. Given her age at the time the events occurred, and were disclosed, her use of the word ‘rape’ in her note to her mother is understandable and was fully explained. The threats that she said were made explained why there was no disclosure at the time.
[16] Although confirmatory evidence of a complainant is not legally required, there was support for S.’s evidence found in the testimony of her grandmother. Her grandmother, a very supportive person in her life, testified that, apart from taking her to and from school, S. would frequently call her and ask to be picked up. On many occasions, S. would insist that she just hated J.A.. The grandmother’s recall was of a strong and previously unexplained dislike.
[17] Despite the strength of the Crown's primary evidence, a sexual assault trial is not an assessment of which evidence is to be preferred. The onus remains on the Crown to prove the case beyond a reasonable doubt.
[18] In this case, J.A. gave a blanket denial of the offences. I am mindful of the fact that as has been said in other cases, there is a difficulty for persons accused of an historical sexual assault on a young person, to raise a defence other than simple denial. See R. v. R.G.L. (2004), 2004 32143 (ON CA), 185 C.C.C. (3d) 55 (C.A.). J.A. was at times somewhat vague in his recollections, to the point of possible evasiveness, but that may be a factor of his personality as well as of the inherent difficulty of what defence counsel termed “an innocent person trying to remember non-events.”
[19] J.A. sought to buttress his evidence through the character evidence of three witnesses. I am satisfied that, obviously, J.A. has no “reputation in the community" for sexually assaulting children or other people. The decision of the Supreme Court of Canada in R. v. Profit, 1993 78 (SCC), [1993] 3 S.C. R. 637, at p. 637, has long since clarified that:
[A]s a matter of common sense, but not as principle of law, a trial judge may take into account that that in sexual assault cases involving children, sexual misconduct occurs in private and in most cases will not be reflected in the reputation in the community of the accused for morality.
[20] Consequently, the value of the character evidence in this case, as in other like cases, is minimal at best.
[21] However, other evidence brought out either in cross-examination or through defence witnesses did tend to raise some doubt about the complainant's story.
[22] The evidence from tax records and the evidence from J.A.'s employer at the time tends to support his evidence that he was not unemployed at the relevant time such that the opportunity to commit the offence, as frequently as indicated, would have been significantly diminished. It is understandable that detailed work records were not available. While there was a discrepancy between the employer's evidence and the evidence of J.A. concerning the consistency of the work crews, that is understandable given the passage of time.
[23] T.1, J.A.'s daughter, disputed some of the peripheral aspects of both S.'s testimony, such as whether she and S. ever slept together in one of the bunkbeds and her testimony concerning who put them to bed. Significantly, she denied that she had ever stood beside S. or been in the room when her father was touching S. S had a clear memory of this as indicated in her statements as well as in her testimony at trial. That was a material contradiction that is of some significance.
[24] Counsel for J.A., in written and oral submissions, pointed out a number of factors bearing on the credibility of S. that must be taken into consideration. She consulted with her mother after the preliminary inquiry concerning minor details, such as the time her mom went to work and came home.
[25] She had not previously testified that J.A. cleaned her off after the incidents, although this may simply be explained by the fact that she was not specifically asked. She was unable to describe visible tattoos and a birthmark, even though the tattoos on J.A.'s lower legs must have been visible to her when he wore shorts throughout the summer. This tends to undermine her memory or accuracy. She could not recall whether or not he was circumcised. As well, I accept the argument that there were other problems in S.’s life at the time, including problems with both her parents’ new and changing relationships, and an admitted “lying” phase. Despite her very believable demeanor in the witness box, which tended to show she was seriously thinking about what she had experienced in an effort to answer detailed questions in cross-examination, these factors do tend to undermine reliability. Believable and honest witnesses can still be mistaken.
[26] Finally, the defence relied on the fact that the Crown had not called all material witnesses. This is at times a difficult factor to weigh. Uncle H. now lives in Western Canada and has warrants for his arrest relating to driving offences outstanding in this province. He has a lengthy criminal record. However, he might have been able to confirm S.’s evidence that she went to him on occasion after the events even though she did not make any disclosure at the time. More significantly, S.’s evidence in many respects could have been confirmed by her mother, who was available to testify but who was not called by either party. This deprived the court of the possibility of confirmatory evidence that would have strengthened the case for the Crown. If the case had otherwise been proved beyond a reasonable doubt it would not be of significance, but in this case it did, considered in totality with all of the other evidence, leave the court with a reasonable doubt.
[27] Two persons, obviously, know the truth of this matter. I am unable, after reasoned and thorough consideration, able to say which has told the truth in court. I disbelieve neither of them. On the totality of the evidence, the Crown has not proved its case beyond a reasonable doubt.
Wein J.
Released: April 1, 2014
COURT FILE NO.: CR-13-05 Orangeville
DATE: 20140401
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
J.A.
REASONS FOR JUDGMENT
Wein J.
Released: April 1, 2014