COURT FILE NO.: CR-13-29
DATE: 2014-10-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
David Allan, for the Crown
- and -
G.M.
Robert Sinding, for the Defendant
Accused
HEARD: June 23, 24, 25, 2014
at Kenora, Ontario
Mr. Justice J.S. Fregeau
Reasons on Judgment
INFORMATION CONTAINED HEREIN IS PROHIBITED
FROM PBULICATION PURSUANT TO
SECTION 486.4 OF THE CRIMINAL CODE.
Background
[1] G.M. (the “defendant”) stands charged on a three count indictment dated June 18, 2013 as follows:
Count 1 – G.M. between the 1^st^ day of January, 2008 and the 14^th^ day of June, 2012 at the City of Kenora in the Northwest Region, did commit a sexual assault on E.G., contrary to Section 271 of the Criminal Code of Canada.
Count 2 – G.M. between the 1^st^ day of January, 2008 and the 14^th^ day of June, 2012 at the City of Kenora in the Northwest Region, did for a sexual purpose touch E.G., a person under the age of sixteen years, directly with a part of his body, to wit his hands, contrary to Section 151(a) of the Criminal Code of Canada.
Count 3 – G.M. between the 1^st^ day of January, 2008 and the 14^th^ day of June, 2012 at the City of Kenora in the Northwest Region, did for a sexual purpose invite E.G., a person under the age of sixteen years, to touch directly with a part of her body, to wit her hands, the body of G.M., contrary to Section 152 of the Criminal Code of Canada.
[2] The defendant entered pleas of not guilty to all counts. The Crown called only the complainant, E.G. The defendant testified in his own defence. The defence called two further witnesses, L.L., the complainant’s maternal grandmother and former common law partner of the defendant, and C.B., the complainant’s mother.
[3] Evidence was heard on June 23, 24 and 25, 2014. On June 25, 2014, I reserved my decision on the matter. A review of the evidence and my decision on Counts 1, 2 and 3 follows.
The Evidence of the Complainant, E.G.
Direct Examination
[4] E.G. was born in Kenora, Ontario on […], 1998 and was 16 years old at the time of trial. E.G. is the biological child of C.B. and B.G. and the maternal grandchild of L.L..
[5] E.G. has had a tragic life. She lived in Kenora with her parents until she was 13 years old. E.G. testified that her mother “was using (drugs) ever since I can remember” and that she and her family had been involved with the local Children’s Aid Society (“CAS”) “ever since I can remember”.
[6] As a result of her mother’s drug overdose, E.G. was finally apprehended by the CAS when she was 13 years old. She was placed with her maternal aunt, G.P., who also resided in Kenora. Approximately two months after E.G. began to live with Ms. G.P., Ms. G.P. obtained a job in Winnipeg, Manitoba. E.G. moved to Winnipeg with Ms. G.P. and resided with her for approximately three years. Recently, E.G. moved out of Ms. G.P.’s home and care without CAS approval. She began to reside with her mother who had also moved to Winnipeg. This lasted only two months. Winnipeg CAS then placed E.G. into the home of S.H., described by E.G. as “her brother’s ex-girlfriend”. E.G. was residing with Ms. S.H. at the time of trial.
[7] E.G. came to know the defendant when she was approximately eight years old. At this point in time, and while E.G. was still residing with her mother, the defendant began to reside in a common law relationship with E.G.’s grandmother, L.L.. E.G. went for sleepovers at the home of her grandmother and the defendant. There was no regular pattern to the sleepovers at Ms. L.L.’s home. They began before Ms. L.L. and the defendant were residing together and continued after they were together. The sleepovers were for one or two nights and on a weekly or bi-weekly basis, apparently always on weekends.
[8] In listening to the evidence of E.G., I was left with the impression that the frequency and duration of E.G.’s sleepovers at the home of Ms. L.L. and the defendant were directly linked to the lifestyle of C.B. and B.G.. In other words, Ms. C.B. had E.G. sleepover at Ms. L.L.’s home when she wanted to indulge in her drug habit or Ms. L.L. arranged for sleepovers when she felt that it was in E.G.’s best interests to get her out of her mother’s home for a period of time.
[9] Ms. L.L. was employed caring for the elderly. She provided basic in-home care for her clients, including housekeeping services and meal preparation. E.G. testified that she would be left alone, in the care of the defendant, when her grandmother was required to work during her weekend sleepovers.
[10] When asked by the Crown if anything ever happened that made her feel uncomfortable E.G. testified that, beginning when she was approximately nine or ten years old, the defendant would “feel like my breasts and outside my shirt, and then as time went on he would feel inside my shirt and it just kind of escalated” to the point where “he’d try and like feel inside my pants…sometimes over, sometimes under” her underwear. E.G. testified that she was often too scared to say anything but that once in a while she would tell the defendant to stop.
[11] E.G. further testified as to one incident where the defendant asked her to touch his exposed penis, which she did. E.G. testified that the actions of the defendant continued “for a few years”, ending when she moved to Winnipeg with Ms. G.P..
[12] There were many aspects of the alleged incidents which E.G. was unable to recall. E.G., when specifically questioned on direct examination, could not remember:
◼ Whether the defendant ever said anything to her at the time of the incidents
◼ What the defendant said when he asked her to touch his penis
◼ How she came to touch the defendant’s penis
◼ Whether the incidents occurred anywhere else than on the couch in the living room
◼ Whether the defendant had been drinking at the time of the incidents
◼ How old she was when the touching ended and whether it went on when E.G. was placed with Ms. G.P.
◼ Who the first person was that she told of the touching and whether that person was in Kenora or Winnipeg
◼ Whether she first told her mother or grandmother of the touching
◼ When she told her grandmother of the touching, how old she was at the time she told her grandmother of the touching or what she said to her grandmother about it.
Cross Examination
[13] E.G. was cross examined at length and effectively by defence counsel, with the cross- examination directed primarily at undermining the credibility and reliability of the complainant.
[14] E.G. acknowledged that she has memory problems as a result of the many difficulties she has experienced in the recent past. She agreed that “there’s some things that (she) loses memory of from time to time”, including the alleged actions of the defendant toward her. E.G. acknowledged that she was not “100% sure” as to the accuracy of her evidence on direct examination as to the touching incidents.
[15] E.G. testified that in the year prior to trial (June 2013 – June 2014) she had been “going through a lot of stuff that has affected (her) memory so I don’t remember much”. E.G. testified that she had been “very suicidal and depressed” to the extent that she had been referred to the “Crisis Stabilization Unit” in Winnipeg multiple times and admitted once.
[16] In regard specifically to the allegation that she had touched the defendant’s exposed penis, E.G. agreed that she could not remember if the defendant had said anything and that she did not remember how she came to touch his penis. She also agreed that she did not have a clear memory of this incident.
[17] As to her initial disclosure of the alleged touching, E.G. conceded that she could not remember the name of the friend she first told or if she had told more than one of her friends. Significantly, E.G. testified that she did not know what she had disclosed to this friend. E.G. agreed with counsel’s suggestion that, “basically, it’s all a blur.” E.G. further conceded that she could not recall when the abuse started or ended or how many times it happened.
[18] During cross examination of E.G., defence counsel attempted to add some substance to the defence theory that E.G. had been pressured by C.B. to make these allegations against the defendant to assist her in extorting money from him. E.G. testified she was aware that her mother had regularly asked for and received money from the defendant. However, she strongly and repeatedly denied that her allegations against the defendant were prompted by her mother in any way.
The Evidence of the Defendant, G.M.
Direct Examination
[19] The defendant is a 58 year old resident of Keewatin, Ontario. He is the father of two girls and the grandfather of four girls. The defendant has known L.L. since 2002, at which time they began a dating relationship. This progressed to the two of them living together. The relationship ended in approximately 2011, with the defendant and Ms. L.L. remaining amicable.
[20] The defendant testified that he first met E.G. a year or two after he started dating Ms. L.L.. The defendant testified that E.G. frequently visited and slept over at the home he shared with Ms. L.L.. Mr. G.M. testified that all visits were arranged either with or by Ms. L.L., who was primarily responsible for E.G. when she was over. The defendant testified that Ms. L.L. did not work weekends, but for occasionally assisting clients in the immediate vicinity of their home. When this occurred, Mr. G.M. acknowledged that he would be left alone with E.G. The defendant insisted that this occurred rarely and was only for 15 to 30 minutes when it did occur.
[21] When E.G. slept over at their home, the defendant testified that he and Ms. L.L. would generally go to bed together at about 9:00 or 10:00 pm, leaving E.G. in the living room playing games or watching television until she went to sleep on the couch.
[22] The defendant first met C.B. in 2003 or 2004. The defendant testified that he was asked for and gave Ms. C.B. money on a regular basis, to the extent of $50.00 to $100.00/week on the average. Mr. G.M. testified that Ms. C.B. always “had excuses” for why she needed the money, but that he knew it was to fund her drug habit.
[23] When asked whether his monetary exchanges with Ms. C.B. “ever stop(ed) at any point”, the defendant testified to an incident which allegedly occurred about “two or three years ago.” At that time, Ms. C.B. asked the defendant for $200.00 or $250.00. The defendant testified that he told Ms. C.B. that he did not have the money and that to get it he would have to take it out of his overdraft and the money would have to be repaid the next day.
[24] The defendant testified that he lent the money to Ms. C.B. but that it was never repaid as promised. As a result, the defendant testified that he “cut them (Ms. C.B. and Mr. B.G.) off.” The defendant testified that Ms. C.B. called him the very next day asking to borrow more money. He refused. The defendant testified that Ms. C.B. stated that “You don’t give me the money I’m telling everyone you molested my daughter.” The defendant told Ms. C.B. to “do what you want.”
[25] The defendant testified that E.G. was always “like a daughter” to him, that he had never touched her inappropriately and that he had never asked her to touch his penis nor had she ever done so.
Cross Examination
[26] On cross examination, the defendant testified that E.G.’s visits to his home continued right up until the time Ms. L.L. moved out in 2011, with the visits being less frequent as E.G. grew up and preferred to spend time with her friends.
[27] The defendant acknowledged that Ms. C.B. did ask him for money while E.G. was present, but denied that he had ever discussed the money issue or Ms. C.B.’s alleged threat with E.G.
The Evidence of L.L.
Direct Examination
[28] Ms. L.L. is 67 years old. E.G. is her granddaughter by her daughter C.B.. Ms. L.L. testified that she met Mr. G.M. in 2000 and that they began to live together in 2003. E.G.’s visits with Ms. L.L. began when E.G. was about five or six years old. Ms. L.L. testified that the visits would generally be from Friday afternoons when she picked E.G. up after work to Sunday afternoons. The frequency of the visits “depended on C.B”, with the visits being more frequent if Ms. C.B. “was doing drugs.”
[29] Ms. L.L. testified that she has been a personal support worker for 30 years and that her regular schedule is Monday to Friday. Ms. L.L. acknowledged that she would be called in to help with clients on weekends, but testified that this did not occur frequently, that she only took calls close to her home and that when she did take these calls, she was out of her home for only “20 minutes, tops.” She denied that she worked most weekends when E.G. was visiting with her.
[30] Ms. L.L. testified that E.G.’s visits to her home were always fun and that E.G. generally played with her video games and laptop. She and the defendant generally went to bed about 10:00 or 11:00 pm with E.G. going to bed “whenever she wanted.” Ms. L.L. testified that she had never seen any conduct or behaviour on the part of either E.G. or the defendant that caused her any concern.
Cross Examination
[31] On cross examination, Ms. L.L. acknowledged that her split with Mr. G.M. was “very amicable”, that they remain friendly and that they continue to see each other regularly. Ms. L.L. also acknowledged that Mr. G.M. was a heavy drinker who starting drinking beer at noon on Saturdays and Sundays, including weekends when E.G. was visiting. Ms. L.L. testified that she “never” went to bed and left G.M. with E.G.
The Evidence of C.B.
Direct Examination
[32] Ms. C.B. testified that she has been suffering mental health and addiction issued for 35 years, resulting in a generally poor short and long term memory. She acknowledged that she has three convictions for drug trafficking. Ms. C.B. has known the defendant, through her mother, for approximately 10 years.
[33] Ms. C.B. testified that she had asked numerous parties for money over the years, including her mother and Mr. G.M.. Ms. C.B. further testified that Mr. G.M. began to refuse her requests for money “around 2011.” Ms. C.B. denied that she had threatened Mr. G.M. in 2011 about him abusing E.G. in an attempt to extort money from him. She also denied that she had ever discussed her money issues with E.G., stating that “there was nothing she could do about it she was a child.”
Cross Examination
[34] Crown counsel chose not to cross examine Ms. C.B..
Discussion
[35] The defendant is alleged to have touched E.G. in a sexual manner on multiple occasions between January 1, 2008 and June 14, 2012. Within the same time period, the defendant is alleged to have invited E.G. to touch his exposed penis. In order for me to convict the defendant, the Crown is required to prove all elements of each count beyond a reasonable doubt.
[36] The Crown’s case consisted of the testimony of the complainant, 16 year old E.G. The defendant chose to testify in his own defence. The defence also called the complainant’s mother, C.B. and the complainant’s maternal grandmother, L.L., who was also the common law spouse of the defendant during the relevant period.
[37] Both the credibility of E.G. and the reliability of her evidence are in issue, as is the credibility of the defendant. The credibility of a witness is the quality that makes his or her evidence worthy of belief. Credible evidence is therefore trustworthy evidence or evidence that is worthy of belief. Reliable evidence is evidence that a trier of fact is able to rely in deciding whether or not a reasonable doubt exists.
[38] Due to the fact that the defendant testified and denied all charges, the issue of credibility is central to my analysis of the evidence. I am therefore required to apply the Supreme Court of Canada’s decision in R. v. W. (D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.). The principles which have emerged from W.(D.) concern the application of the Crown’s burden of proving guilt beyond a reasonable doubt to the issue of credibility. Cory J., writing for the majority, stated (at p. 409 C.C.C.):
In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue.
[39] Cory J. went on to set out the required instruction as follows (at p. 409 C.C.C.):
The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Secondly, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole.
Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Secondly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit.
Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[40] The instruction emerging from W.(D.) concerns the Crown’s burden of proving guilt beyond reasonable doubt. It has no application to individual items of evidence or to discrete facts in a case. The trier of fact must consider the evidence as a whole and determine whether guilt is established by the prosecution beyond a reasonable doubt. This of necessity requires that each element of the offence be proved beyond a reasonable doubt. No evidence, whether favourable to the defence of the Crown, should ever be assessed in isolation when determining credibility.
[41] The main mischief that W.(D.) is directed at is the misconception that a criminal trial is a credibility contest, where the trier of fact is choosing which side gave the better account or which side to believe. This approach is incorrect because it both reduces the burden on the Crown and imposes a burden on the defence. The either/or proposition of believing the defence evidence or the Crown’s evidence excludes the third alternative – namely that the trier of fact, without believing the accused, after considering the accused’s evidence in the context of the evidence as a whole, may still have a reasonable doubt as to guilt. This relates to the second step in the R. v. D.(W.) analysis which can be restated as follows:
If, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit.
[42] After careful consideration of the evidence of all witnesses, I am not satisfied beyond a reasonable doubt as to the guilt of the accused on any of the three counts in the indictment. I do not believe all aspects of the evidence of the defendant. However, after consideration of his evidence in the context of all evidence heard in this case, I am simply unable to decide whom to believe. In the result, I am required to acquit.
[43] I reluctantly accept the submission of defence counsel that the uncorroborated evidence of E.G. is not sufficiently reliable to convict. Section 274 of the Criminal Code of Canada states that in the trial of an offence under s. 271, s. 151, s. 152, among others, corroboration is not required for a conviction and the judge shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration. However, a trial judge retains discretion with respect to the weight to be placed on the unsupported evidence of a complainant in a trial for a sexual offence.
[44] In my opinion, there were too many occasions where the complainant was unable or unwilling to recall specific aspects of the alleged incidents, or events occurring after the alleged incidents. E.G. acknowledged on cross examination that she has memory problems to the point of memory loss of events, including the alleged actions of the defendant toward her. E.G. was unable to recall, for example:
◼ Whether the defendant had been drinking at the time of any of the incidents and what, if anything he said to her;
◼ What he said on the occasion where she touched his penis and what he said to compel her to do so;
◼ Whether the incidents happened anywhere other than on the living room couch;
◼ Who she first disclosed the allegations to and whether that person was in Kenora or Winnipeg.
[45] In regard to the latter point, I find it particularly problematic that the complainant would not be able to testify as to whom she had first disclosed the alleged abuse to, considering that the disclosure took place within a relationship with a friend.
[46] This is not to say I do not believe the complainant. She may be telling the truth. The incidents may have happened. However, to suggest that the evidence of the complainant may be true is a far cry from establishing the guilt of the accused beyond a reasonable doubt. The unreliability of the complainant’s evidence, coupled with the evidence of the defendant and his common law spouse, the complainant’s maternal grandmother, leave me with a reasonable doubt.
[47] The defendant is found not guilty on counts 1, 2 and 3 of the indictment.
The Hon. Mr. Justice J.S. Fregeau
Released: October 1, 2014
COURT FILE NO.: CR-13-29
DATE: 2014-10-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
G.M.
REASONS ON JUDGMENT
Fregeau J.
Released: October 1, 2014
/sf