SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(P) 2254/12
DATE: 20140618
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
A. K. Watson, for the Crown
- and -
GORDON ROSS
L. Santerre, for the Defence
HEARD: March 24-27 and April 22, 2014
REASONS FOR JUDGMENT
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity, including the names of other Crown witnesses, shall not be published in any document or broadcast in any way.
HILL J.
INTRODUCTION
[1] Gordon Ross pled not guilty to sexually assaulting the teenaged daughter of his friend and employee.
[2] The accused raised an alibi defence.
FACTUAL BACKGROUND
Early History
[3] T.A. (T.A.) is the complainant. Her family resided in the accused’s apartment for about six months in early 2009, after staying for a time with her Aunt A.L. and not long after arriving from Guyana, and before moving to their Brampton townhouse in mid-June. The complainant initially testified in-chief that there were “[n]o issues” with the accused when in his residence. This evidence was consistent with T.A.’s videotaped statement to police. Subsequently, she testified in-chief that she had problems with the accused at times in his car or in his apartment. She recalled “[i]n appropriate touching” of her legs and “bum”. She would tell him to stop and move his hand. In cross-examination, T.A. was challenged as to adding, at the preliminary inquiry, this reference to the accused touching her:
Q. Okay. And it's not until the prelim that you decide to add more weight to your story and say that he would touch your bum, correct?
A. At that point I allow everything to flow back in so that's when I started saying what I do remember.
Q. Okay.
A. It's not a change of story. It's just an adding.
Q. Well, you never took it serious or anything like that, right?
A. I did.
[4] In cross-examination at trial, the complainant stated that the bum-touching and inappropriate comments on the accused’s part were recorded in her diary. When she wrote things there, it allowed her to forget them. In her preliminary inquiry evidence, the complainant stated that she did not record those events in her diary. Challenged with this discrepancy, T.A. stated that she could not recall that evidence.
[5] The accused testified that he never touched T.A. on her legs and made no inappropriate comments toward her when they resided in the same house. He had no arguments with T.A.
[6] K.A. is T.A.’s father. P.A. is her stepmother. In her evidence, T.A. agreed that her family were Seventh Day Adventists which was a fairly strict religion whose members observed their Sabbath from sunset on Friday to sunset on Saturday.
[7] The complainant agreed with the suggestions in cross-examination that her father applied “a lot of rules” to her and would not let her go out often. The accused testified that he was aware of discipline issues between T.A. and her father. Under the pressure of cross-examination, the complainant ultimately agreed that she had on occasion participated in deceiving her father as to her whereabouts. T.A. further testified that she had not had a good relationship with her father. She never felt loved.
[8] In cross-examination, T.A. rejected the suggestion that she did not ask her Aunt A.L. (P.A.’s sister) if she could stay with her each weekend. At the preliminary inquiry, the witness stated that she asked her parents almost every weekend and once and a while they would agree. She enjoyed spending time at her aunt’s house and being with her cousins.
[9] The accused informed the court that in 2008, subsequently changed to March 2009, during the time when the A. resided with him, the police took K.A. into custody after T.A. said something to someone at school which led to the police being contacted. The accused described the aftermath of this once Mr. K..A. was released:
A. And then we all sit over the meeting around with her and we - kind of talk to her and say, you know what, that’s very bad. If you do something, you know what the bible said. The bible speak about scolding, spare the rod and spoil the child, right.
And you know what - it take a village to raise a kid. So you know about - we know what everybody - only in the house, adults in house will discipline the child by either talking to her and the parent would deal with them however.
Right, so we all talk - say we can’t believe you do that. We know - you know that if you do something wrong and you get scolded you got to take that this is what we know, this country we grow up in. And I was - I was home the - the night before and I never even know that you get licks. I didn’t even know that and I’m right there, the bedroom is very close. I didn’t even know you get licks to know that you had to go. Then I can get - she gets a few lashes in her hands and then she just decide to do that.
A. Yes. Me, my wife, K.A. and his wife and T.A., just to find out why would she do this. Why would she allow it to go so far. When...
Q. Well - sorry, go ahead.
A. Why would - why would she allow it to go so far when she know we - our background that you know, you do something wrong you will be disciplined for it. So we didn’t know why she would do it. So we all talk to her and I tell her, I said straight, you know what, I don’t want no police and whatever you and your father have, I don’t want you to ever have to bring police at my place. Don’t ever do it.
And I said, you know what, if you could - and I know I said it, if you could do this to your father, what you would do to a stranger, girl. I said that and that was 2008 or whenever the police come. I said, I can’t believe you going to do this - you’re cruel.
Q. You called her cruel?
A. Yeah, I said you’re cruel, girl. I can’t believe you would try to put your father in trouble just because scolding you for coming home late ‘cause when it get - she come home, school finish 3:15 and she come 8:00 something in the night.
[10] On the accused’s evidence, he and his wife and T.A.’s parents did not approve of T.A. taking things as far as she had. It “wasn’t nice” for her to have involved the police.
The Alleged Sexual Assault
[11] The complainant (T.A.) testified that on a day in July 2009 after she had turned sixteen and was off school, she was alone in the two-storey condo townhouse where she lived with her father and stepmother. There was no punch code or buzzer system to reach the front door of the residence. The front door of the residence was locked. It was midday and she was in the home’s small kitchen beginning to prepare to cook food for the family dinner. Her parents were expected to return home at about 5:00 p.m.
[12] T.A. informed the court that she heard a key unlocking the front door. It was the accused. He had never come over in the middle of the day without her father or someone else being around. She and the accused greeted one another and he asked if she had seen “the saw”.
[13] T.A.’s father, K.A., was employed by the accused’s construction company working in the building and renovations field. T.A.’s stepmother described the accused as a close friend. She testified that there was a buzz-in code system at the condo complex. The accused and T.A.’s aunt gave similar evidence. In his evidence, the accused also stated that the A. were very good friends.
[14] T.A. would see the accused, who she also described as a family friend, perhaps once or twice a month at her house related to her father and the accused doing part-time work on the weekend, and also on Saturdays at the Seventh Day Adventist church their families jointly attended.
[15] To T.A.’s recall, she was getting the rice, chicken, onions and other food ready when the accused unexpectedly arrived. She had not commenced the cooking. At trial, the complainant stated that she did not think she had yet started to cut up any of the food. At the preliminary inquiry, the witness stated that everything had been cut up. Cross-examined on this discrepancy, T.A. stated that while she had no present recollection, some of the green onions may have been cut up.
[16] The accused testified that he never had a key for the A. townhouse. He at no time went there to obtain a saw.
[17] The complainant agreed that she had some bowls and other items on the counter where she was working. At the preliminary inquiry, the witness recalled a plate and cutting board as well.
[18] T.A. testified that in reply to the accused’s question as to whether she had seen the saw, she responded “no”, but also told the accused that she thought the saw was on the patio. She believed that the accused then went to the patio located off the livingroom. She remained facing the kitchen sink.
[19] T.A. described herself as being 5’5” to 5’8” in the summer of 2009. The accused was bigger than her. On the relevant date, she was wearing black, baggy basketball shorts to her knees, a blue and silver spandex shirt, a bra and underwear.
[20] On the complainant’s evidence, when the accused returned from getting the saw, he entered the kitchen and came up behind her from the left – half to the side and half behind her. The centre of the accused’s body was touching her left shoulder and to the centre of her back. He placed his right hand, in a firm grip, around her neck onto the base of her throat. She instantly removed his hand shoving it away without difficulty. She said “Stop. What are you doing?” On her account, using both his hands, the accused then grabbed her around the waist, turned her around and picked her up lifting her onto the counter opposite the sink. She was then seated on the counter facing Mr. Ross who stood in front of her. In her videotaped statement to the police, T.A. described the accused picking her up in part by her neck.
[21] T.A. testified that the accused tried to force his way between her legs while continuing to rub her breasts over her clothing, lick her neck and put his tongue in her ear. At one point, the accused succeeded in getting between her legs despite her trying to squeeze them together. He tried also to get under her shorts. He had “wandering hands” going everywhere.
[22] T.A. testified that she said, “Stop, stop”. At a point, she kicked the accused. She was really scared. When she tried to push the accused away, he forced himself onto her even more. The complainant was unable to recall the duration of events in the kitchen but thought it was longer than five minutes. The accused kept saying, “No, you can’t leave me like this”.
[23] T.A. testified that nothing was broken in the kitchen and there were no signs of a struggle.
[24] According to the complainant, at a point, the accused picked her up and carried her a short distance into the livingroom. She was lifted by the neck and waist facing the accused and carried off the ground, as they were face-to-face, to a couch. T.A. testified that as she was moved, she pushed and pounded with her fists on the accused’s shoulder blade while loudly screaming for him to stop. He did not stop. There was a struggle.
[25] On T.A.’s evidence, she was push-dropped onto the couch on her back by the accused. At trial, T.A. described a coffee table located in front of the couch about armslength away. It had nothing on it as they had just moved in.
[26] T.A. recalled that she pressed her buttocks hard into the couch as the accused was on the couch by her legs kneeling over her and trying to separate her legs and pull her shorts down from the top.
[27] In cross-examination, T.A. agreed that she was screaming even louder by the time she was taken to the couch. She was scared and screamed at the top of her lungs. The complainant cannot recall whether the patio door was then open. No one came to help her. While she had heard screaming in the townhouse complex, located in a “bad area”, in her experience people did not call the police.
[28] T.A. testified that when the accused was unable to pull her shorts down, he continued to try to force his way between her legs while trying to pull the shorts from the bottom before placing one or two hands up the bottom of a leg of the baggy shorts. He pulled her underwear to the side and touched her vagina. She continued to try to push the accused away as she screamed for him to stop.
[29] T.A. testified that the accused did not remove any of his own clothing. He eventually succeeded in getting between her legs having forced her legs apart. She saw the accused take his penis out. The witness stated that she does not know if the accused’s penis was erect or not. Cross-examined at trial as to which hand the accused used to undo his pants and to hold his penis, T.A. could not recall. While at the preliminary inquiry, the complainant stated it was the accused’s right hand, T.A. was not asked at trial whether that refreshed her memory or whether she adopted that answer. At trial, T.A. had no recall whether the accused was doing things predominantly with his right hand.
[30] T.A. testified that she screamed even louder. She recalls that the accused said, “You can’t leave me like this. You can’t leave me like this. Wait, wait, wait, don’t push me, just allow it…”.
[31] On T.A.’s evidence, the accused then came fully onto her body pinning her with his weight and touching her breasts, licking her neck and placing his tongue in her ear. As the accused came “extremely close” to her, she bit hard though his clothing at his left collarbone or shoulder area.
[32] On the complainant’s evidence, once bitten, the accused recoiled backward saying “ouch” and holding his shoulder area. As the accused was distracted, she was able to pull her legs free, roll onto the floor without striking the coffee table and run to the main floor powder room bathroom. T.A. estimated that she had been on the couch for 15 minutes more or less struggling the whole time as she pushed and pounded and tried to get loose.
[33] T.A. testified that she shut and locked the bathroom door and sat behind the door. To her recall, some doors in the house had locks and some did not. T.A. could not recall whether the bathroom door lock had a push or a turn mechanism. On her account, the accused was hitting the bathroom door saying, “I’m sorry, I’m sorry. Open up. Open up. I need to apologize to you…”.
[34] T.A. recalled that she remained in the bathroom for four to five hours. She was crying. When she finally heard a door open and close and the familiar voices of her father and stepmother, she left the bathroom and ran upstairs. The complainant testified that:
No, I did not. I ran straight upstairs, start taking my clothes off throwing them to the side, rushing into the bathroom, into the shower, sorry, and I just sat there and I was just trying to - I felt so dirty I just sat there and I was just trying to just wash everything out.
It's like, at that point, like I said, I felt dirty. I felt nasty. I just wanted to just go upstairs, shower, ripped everything off, go into the shower, just sit there, just - I wanted to scrub myself clean at that point.
When they got home, remember, I went upstairs. I start ripping my clothes off. I start showering trying to scrub myself clean. So I came downstairs with different stuff
[35] T.A. informed the court that she cried when she was upstairs. She wrote down what had happened in her diary. She believes she may have stayed upstairs for an hour or two. The complainant informed the court that her diary remained at her father’s home after she moved out. It was not turned over to the police.
[36] In cross-examination, T.A. was asked if she had sustained any injuries. The complainant stated that she had no scratches but, as she was in the bathroom waiting for her parents to return home, her shoulder hurt and she thought it had been popped or dislocated. T.A., who described herself as double-jointed, agreed that she told the police that she had to dislocate her shoulder in order to escape from the accused. T.A. testified that she was also mentally hurting.
[37] T.A. was cross-examined as to whether any of her clothing was ripped or torn during the assault. At trial, she could recall only “a bit of a rip” of her underwear. At the preliminary inquiry, the witness said that no clothes were damaged.
[38] The complainant did not check to see if the saw she believed was on the patio was taken away by the accused. At trial, T.A. could not recall what the saw looked like.
[39] According to T.A., during the evening, after she came downstairs for dinner, she tried to show no emotions. She made no disclosure to her parents. When she was asked by her father and stepmother whether she was alright she said that she was.
[40] In his evidence, Gordon Ross denied that he ever sexually assaulted T.A. He informed the court that he writes left-handed and does everything with his left hand as his right hand “is invalid”. In his view, he got along well with the complainant.
The Complainant’s Memory
[41] At trial, there were matters and details the complainant was unable to recall including testimony she gave at the preliminary inquiry. In commenting on the quality of her memory, T.A. testified that:
After the whole incident, every time you guys bring me over, I try to remember as much as possible, but I try pushing it out of my mind. Half the things, I don't remember.
Like I said, I don’t remember most of it.
And it was a long time ago. Like I said, I'm still trying to put it out my mind, half the things, I'm trying to forget. I don't remember exactly how he picked me up, most of it. I'm trying to forget. You guys just keep calling me back. I have to refresh my memory every time. It's hard.
…to be honest to you, I don’t remember half the questions that was asked [at the preliminary inquiry].
Like I told you before, when I came in, I told them half this stuff. I’ve been trying to put out. I’ll try to do my best on the stand, I’ll try to remember as much as I could, but most of it, it’s still a blue. Hopefully it’s all a blur soon. I don’t remember.
I don’t – I won’t remember way back then everything. Like I said, when it starts flowing back in and I allow it to flow back in, I remember. What I remember, I tell.
Early Disclosure
[42] Asked in her in-chief testimony why she did not call the police, T.A. stated that, newly-moved into the townhouse, there was no phone, and in any event, she didn’t want to because it would ruin her father’s friendship with the accused and have her father end up hating her.
[43] T.A. testified that perhaps as soon as two days after the alleged assault, she told her 15-year-old cousin, Sasha, what had occurred. She felt embarrassed.
[44] A few weeks later, also described as perhaps a week or two later, on T.A.’s evidence, she told A.L., Sasha’s stepmother, what happened to her. She told her aunt because, in her words, “it wouldn’t go away. It just keeps repeating”. The accused was still coming to her house and seeing him reminded her of what had occurred. She found herself becoming angry. In addition, Sasha told her that if she didn’t tell A.L., she would.
[45] T.A. testified that she spoke to her aunt at the A.L. home. On T.A.’s evidence, on hearing her niece’s account, A.L. said that she would call T.A.’s father and that counselling could be arranged with their pastor. Her aunt made the call to her father that night or the following day. A.L. testified that she knew the accused through her sister. He was not a friend. Ms. A.L. testified that she was “really close” to the complainant. She had no recall of her niece reporting sexual abuse to her (“…nothing was said to me personally about the incident”).
The Family Meeting
[46] T.A. testified that on a Friday at the end of July before the Caribana Festival, her aunt, and her husband (O.), drove her home. The accused was just leaving T.A.’s home as his wife (Leslie Ann) had come to pick him up. According to the complainant, once her aunt spoke to her parents, her stepmother phoned the accused’s wife saying that they needed to talk.
[47] The accused and his wife attended the A. residence between 10:00 and 11:00 p.m. Everyone gathered in the livingroom. The accused sat on the floor.
[48] According to T.A., her stepmother announced that the complainant had something to say. To her recall, it was 20 to 30 minutes before she spoke. In her words at trial, “I didn’t know how to say it”. She felt embarrassed. Everyone sat in silence looking at one another. In her in-chief testimony, T.A. stated that she related to those present what she described in her in-chief evidence here at trial. In cross-examination, the complainant stated that she gave a full account of the events in the kitchen and the livingroom.
[49] P.A. testified that it was her sister, A.L., who said that T.A. had something to tell the group. Her stepdaughter was crying. On this witness’ evidence, T.A. related that the accused had touched her bum and her breast.
[50] On T.A.’s evidence, once she described what happened to her, the accused began screaming, “Oh, she’s lying. She’s lying. It’s not true. She’s lying.” O. then stepped in to say that the accused was either to tell the truth or they would get the police involved. According to T.A., the accused responded in a clear and loud voice that “Everything she said it’s true”. In her view, the accused admitted the truth of her allegations and all who were present heard the confession. The accused then bent his head seeming ashamed. T.A. recalls that she began to cry.
[51] The accused testified that when T.A. said that he had touched her breasts and bum, he was astonished and in shock. He froze for a while wondering why T.A. would make such an allegation. He denied the allegation. At no point, did he admit the allegation. Initially in cross-examination, the accused said that he could recall nothing else of what T.A. said at the meeting. Subsequently, he added that T.A. said to him, before the meeting began, the date on which she was touched – one or two weeks prior.
[52] P.A. testified that she has no recall of a date upon which T.A. said she was sexually assaulted. In her in-chief evidence, the witness said that the accused said he didn’t do it after T.A. stated her allegation. Subsequently, still under questioning by Crown counsel, the witness stated:
I think he said, like, later on in the evening, oh, if she said, if she's saying that I did it, I'm, I did it or something to that effect.
He was saying, like, later on if she's saying that I did it, then I did it. Something to that effect.
In cross-examination, Ms. P.A. agreed that at the meeting she had doubts and concerns about T.A.’s account in part because she believed the accused was working each day with her husband. The witness admitted that in her February 18, 2011 statement to the police she said that she was not sure whether the accused confessed at the meeting. During police questioning, the interviewer twice stated that it was her understanding that the accused did make an admission.
[53] In the statement A.L. provided to the police on February 19, 2011, this response appears:
Q. So that night what - what was said, because my understanding is he denied it and then he admitted it?
A. I can’t remember to be honest with you.
Q. What is your understanding of what happened? Like what - what did he do to her? Is like what...
A. I don’t know what he did to be honest with you. I can’t remember the incident. Like I don’t know what he did to her. I don’t know. I don’t know to be - I don’t want to use words ‘cause I don’t know what he did to her. Her dad would be the best person, you know, to say.
[54] The witness claimed virtually no recall of the family meeting in her trial evidence. She did not call the meeting. She had no recall of the day of the meeting or how it began. Ms. A.L., however, was able to describe where various attendees were seated in the A. livingroom. Questioned further about the meeting, the witness gave this evidence:
A. Nothing in particular. I don’t recall who said what but I know that T.A. had mentioned - like I said, I don’t remember who said what but it was something that had occurred between herself and Gordon but I don’t know the details.
Q. Okay, or do you remember what the allegations were that were said?
A. I don’t remember the full allegations but there was something that T.A. probably mentioned of an incident between Gordon and - and herself.
A. …T.A. was just saying many different things. You know, I don’t know, she was just like confused.
Q. Do you recall Mr. Ross saying anything in response to the allegations?
A. No, just that whatever she was talking about was not true but the details are very hard to remember to be honest with you, it’s a long time.
Q. Do you recall why the police were not called during the family meeting?
A. I don’t think we all thought it was necessary to call but I don’t remember the details to call the police.
Q. Your memory today, ma’am, of the family meeting, what did T.A. say at the meeting?
A. I can’t remember what she said.
Q. ...you don’t recall anyone saying anything specifically?
A. No.
Q. And you don’t recall T.A. explaining the allegations?
A. She must have said something, yes, but I don’t recall exactly what she said.
Q. And you don’t...
A. And I can’t describe in words what she said. I can’t recall.
Q. And you don’t recall what if anything Mr. Ross had said at the family meeting?
A. No, there was just information I guess going back and forth but I don’t - I don’t recall...
Q. You’re assuming that there was information exchanged back and forth...
A. Maybe, I don’t know.
Q. ...but you don’t know what information?
A. I don’t know. I can’t give the details of who said what.
A. No, I don’t recall him saying anything was true. I didn’t hear him say that.
Q. You’d agree with me you don’t have much of a - a memory of this family meeting, do you?
A. I would agree that’s a long time ago and I don’t recall the bits and pieces. It’s very vague.
Q. You don’t have much of a memory of the family meeting?
A. I don’t have a lot of memory of exactly what happened, just bits and pieces.
A. …If I don’t remember, I can’t force myself to remember the details.
A. In my recollection, T.A. never said that she was sexually assaulted.
A. … The meeting was a long time ago. I don’t remember the details.
[55] The complainant testified that after the accused’s admission, her stepmother grabbed a wooden cricket bat from the front door entrance closet and began to strike the accused on the back and shoulder and then on his leg when he raised it. In T.A.’s view, only her stepmother did anything. It seemed that people were prepared to turn a blind eye to what happened. Her father put his hand to his face, bent his head and just sat there without saying much or really asking any questions including when the assault occurred. The accused’s wife ran to the bathroom and was “cussing and crying”.
[56] A.L. testified that the accused’s wife ran upset to the bathroom during the meeting. The witness had no recall of her sister striking the accused. She was prepared to acknowledge that it was “possible” that P.A. was upset.
[57] In her evidence, T.A.’s stepmother acknowledged that she was “emotional” throughout the evening and overwhelmed. She also agreed that she struck the accused in the shoulder area with a wooden bat from the front closet. Someone took the bat away from her. P.A. described the accused as “pretty much quiet” and his wife as sad and emotional. The accused testified that T.A.’s stepmother did not strike him during the meeting.
[58] T.A. rejected the suggestion the suggestion in cross-examination that persons present at the meeting said that they disbelieved her and that there were inconsistencies in her story.
[59] T.A. testified that before she left the livingroom, her aunt stated that it would be better if she came to stay with her for “a bit”. She left the room as the tension was really high and she did not want to be there. She went for a walk to clear her head.
[60] P.A. testified that she went for a walk in the park in the late evening. When she went outside, her stepdaughter was still sitting in the livingroom.
[61] Under cross-examination, T.A. was asked whether she reported at the meeting that she had a knife when she was in the kitchen with the accused at the time of the alleged assault. T.A. replied that she did not.
[62] T.A. recalled that when she returned from her walk she immediately went upstairs to her bedroom. Everyone was still in the livingroom talking. She did overhear her stepmother saying to her aunt that it would be better if the complainant went to her aunt’s house for a night or two until things calmed down. At this point, she felt that it was all a waste of time having said anything. Nothing was going to happen. In her words, “It just made me feel like, you know, like what happened to me is probably no, no one cares. Whatever happened to me, happened to me”.
[63] In cross-examination, T.A. stated that she could not recall who first raised the idea of her going to stay with her aunt. Her stepmother testified that T.A. wanted to go to her aunt’s home as she did not feel safe at the townhouse.
[64] According to T.A., the family meeting went all night talking about “[t]he situation”. She left the house with her aunt between 6:00 and 7:00 a.m. She did not personally contact the police. In her view, she had told her father who was responsible for her – “[h]e should be protecting me”. It was for her father to decide what to do at that point.
[65] T.A. attended the Caribana Festival in 2008 with her cousins and had fun. She wanted to go in 2009 but the event fell on a Sabbath day and it had been decided by March 2009 that the family would not be attending. In T.A.’s words, “It didn’t really matter to me”.
[66] On the Saturday that T.A