ONTARIO
SUPERIOR COURT OF JUSTICE
court file No.: CR/12/30000824/0000
DATE: 20140911
B E T W E E N:
HER MAJESTY THE QUEEN
Peter Fraser, for the Applicant
Applicant
- and -
T.D.
Dev Bains, for the Defendant
Defendant
HEARD: September 8 and 9, 2014
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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.
REASONS FOR JUDGMENT
KELLY J.:
[1] The defendant, Mr. T.D., has pleaded not guilty to one count of indecent assault. It is alleged that between January 1, 1969 and January 1, 1971, he did commit an indecent assault on his niece, Ms. S.W., by fondling her vagina.
[2] Ms. S.W. (the complainant) testified, as did her sister Ms. M.W. Mr. T.D. testified in his own defence and has denied the allegations. As such, it is agreed that the principles in R. v. W. (D.)[1] apply. Accordingly, the Court’s analysis of the evidence is to be guided by the principles set out by the Supreme Court of Canada as follows:
(i) if the defendant’s exculpatory account is positively believed, then the trier must acquit;
(ii) if the defendant’s exculpatory account is not positively believed but, considered with the other evidence it raises a reasonable doubt, the trier must acquit; or
(iii) even if the defendant’s exculpatory account is disbelieved and does not raise a reasonable doubt, the trier must still apply the traditional burden of proof by considering all of the evidence and determining whether the Crown has proven guilt beyond a reasonable doubt.
[3] Crown Counsel submits that the evidence of Mr. T.D. should not be examined in a “silo” of its own. I should reject the exculpatory account provided by Mr. T.D. because he submits that the complainant was a credible and reliable witness. She, he says, presented as a compelling, honest, mature and responsible member of our community. In particular, he submits that she is to be believed because she was candid about what she could and could not recall. Further, he submits that there is no motive for Ms. S.W. to have fabricated these allegations.
[4] In these circumstances, Crown Counsel submits that the principle set out by the Ontario Court of Appeal in R. v. J.J.R.D.[2] is applicable here. At para. 53 Doherty J.A. states:
The trial judge rejected totally the appellant’s denial because stacked beside A.D.’s [the complainant] evidence, and the evidence concerning the diary, the appellant’s evidence, despite the absence of obvious flaws in it, did not leave the judge with a reasonable doubt. 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 an accused testified or the substance of the accused’s evidence.
[5] I have considered the principle set out in R. v. J.J.R.D. I do not reject Mr. T.D.’s denial when stacked against the evidence presented by the Crown. I have assessed his evidence in light of all of the evidence adduced during this trial. Having done so, I find that his evidence leaves me with a reasonable doubt having considered the evidence as a whole. What follows are my reasons.
The Relevant Crown Evidence
[6] Ms. S.W. presented well as a witness in this trial despite a rather troubled upbringing. She was born in 1963, her sister in 1962. They were raised principally by their mother but spent some time in foster care. Mr. T.D. is their uncle by marriage. He was married to the sister of their mother.
[7] Ms. S.W. attended school until grade 8 (approximately 1976) at which point she dropped out. She described her education as “turbulent”. In her words, she was “dysfunctional” and “angry”. She “picked a path of destruction”, “went wild” and “fell into the drug scene” becoming drug addicted, involving herself in a relationship with a drug dealer and stripping to support herself.
[8] Ms. S.W. battled health problems, including hepatitis C. In her mid-twenties, she was arrested, charged[3] and convicted of serious drug offences, including possession of cocaine and trafficking LSD. She served time in custody. By this point she had two children. Mr. T.D. was approached to be her surety at the time of her arrest and at one point her two sons were cared for by Mr. T.D. and his wife for a couple of weeks during her incarceration.
[9] Ms. S.W. appears to have turned her life around. She returned to school completing her high school education. Eventually, she went to college where she studied and obtained a diploma in addiction behaviour in humans. It seems she has been steadily employed ever since, primarily as a waitress.
[10] The allegations arise from an incident that Ms. S.W. says occurred when she was six or seven years of age. She testified that she and her family would visit the T.D. residence, usually on weekends. On one occasion, she was at the home and sharing a bedroom on the second floor with her sister. One evening, Mr. T.D. entered the room and sat on her bed. Ms. S.W. pretended to be asleep. She says that Mr. T.D. placed his hands under her pajamas as well as her undergarments. He fondled her vagina. When asked whether Mr. T.D. had penetrated her vagina, Ms. S.W. responded that she did not know.
[11] After fondling her, Ms. S.W. testified that Mr. T.D. removed his hand and went to her sister’s bed where he sat down. Eventually he left the room and returned to the master bedroom that he shared with his wife.
[12] Ms. S.W. did not say anything to Mr. T.D. during the indecent assault alleged. She was scared, but submits that she knew that what Mr. T.D. had done to her was “not right”. She says that she discussed the incident with her sister shortly thereafter.
[13] At age 12 or 13 (approximately 1975-1976) Ms. S.W. says that she reported the incident to her mother. Her mother asked her not to say anything because of the failing health of her sister (the complainant’s aunt and the wife of Mr. T.D.). Ms. S.W. followed such advice although she says that she made Mr. T.D. aware of her allegation of abuse by leaving a voicemail message for him and making other comments directly to him as well thereafter.[4]
[14] It was in 2010 that Ms. S.W. reported this incident to police[5]. She believed that Mr. T.D. had “molested” her son Joey giving rise to his personal problems, including drug addiction.[6] Her aunt had also passed away by this time so she decided to disclose the incident. Thereafter, she reported the allegations to the press in Toronto and in Newfoundland, where Mr. T.D. was residing.
The Evidence of Mr. T.D.
[15] Mr. T.D. testified and completely denies that he fondled the vagina of Ms. S.W. He testified that he was born in Newfoundland in 1940 and at the time of trial, he was 74 years of age. He came to Toronto and married the aunt of the complainant in 1963. He was steadily employed for most of his life at Canadian Tire and American Motors. He retired in the year 2000 and returned to Newfoundland after his wife passed in 2002. Mr. T.D. does not have a criminal record.
[16] Mr. T.D. testified that he moved to 530 The West Mall in 1970 where these allegations are said to have arisen. He remembers the timing because they moved into this townhome shortly before his third child was born in early 1971. They lived there for approximately 15 years before moving to Brampton and eventually buying a home.
[17] Mr. T.D. testified that he had a good relationship with both Crown witnesses as well as their mother and her boyfriend. He testified that both Ms. S.W. and her sister stayed with him and his family during hard times: particularly when their mother was dealing with her alcoholism issues and residing in The Clarke Institute.
[18] On other occasions, such as weekends, Ms. S.W. and her sister would sometimes stay the night when they came to visit with their mother. Occasionally the girls slept on the sofa and other times they slept in a bedroom on the second floor. Although he absolutely denies that he touched either of the girls inappropriately, Mr. T.D. did concede that the opportunity was there. As he put it: he had to walk by their room at night to get to his own. He testified that he had no contact with either Ms. S.W. or her sister after they had gone to bed on any occasion.
[19] Mr. T.D. conceded that the frequency of contact between the two families did decrease for a variety of reasons described below. Since he moved to Newfoundland in 2003, he has had no contact with Ms. S.W. until these allegations arose. Such allegations came as a complete shock to him.
Analysis
[20] I agree that despite the many hurdles in her life, Ms. S.W. presented as a candid and intelligent witness. There were some internal inconsistencies in her police statement and between that statement and her preliminary hearing evidence that in my view, are of no moment. There were minor inconsistencies in her trial evidence.
[21] When faced with the abovementioned inconsistencies about whether or not Mr. T.D. “entered” her vagina, she maintained that Mr. T.D. touched her labia lips and to her, that means that that his fingers were “inside” her vagina. As she repeatedly said, “whether he went in or not, [she] does not know”.
[22] Ms. S.W. also appeared to be inconsistent in her testimony at trial about “when” she stopped seeing Mr. T.D.. Initially, she said that as soon as she became a mother she stopped seeing him. This is contradicted by her later testimony when she said that she did visit him on occasion. During one of these visits, she was at the T.D. home with her mother and 9-month old son. She specifically recalls that her mother wanted to go shopping and suggested that the son be left in the care of Mr. T.D.. Her mother is alleged to have said something like: “maybe he can make up for the wrong he did”.
[23] I do not find that such contradictions negatively affect the credibility of Ms. S.W. However, there are some other aspects of her evidence that do affect her credibility, leaving me with reasonable doubt when considered together with the entirety of the evidence presented at trial.
[24] Firstly, the account of the discussion with her sister that Ms. S.W. said occurred shortly after the fondling incident was rife with detail. Ms. S.W. testified that “soon after” the incident, she and her sister talked about it. They struck a “deal” that whenever they went back to the T.D. household, they would “pretend” to be sleeping and “pray” that he passed their room. Ms. M.W. testified that she has no recollection of this whatsoever.
[25] In particular, Ms. M.W. testified that she has no recollection of the event (i.e. Mr. T.D. entering the room), of anyone coming into the room and absolutely no recollection of the deal as described by Ms. S.W. She went further than that, saying that she does not recall any conversation of this nature with her sister during the time they visited the T.D. residence at The West Mall. She recalls no such conversation when she was a “kid”. This is so despite the fact that she was one year older than Ms. S.W. at the time and would likely have recalled such a discussion had it occurred.
[26] Ms. S.W. testified that at age 12 or 13 (around 1975-1976), she told her mother about the fondling incident, but was asked not to say anything. The reason? Her aunt (who was married to Mr. T.D.) had a heart condition and Ms. S.W.’s mother was worried that such information would give her aunt a heart attack. The mother of Ms. S.W. is alive, lives in Toronto and remains friendly with Ms. S.W. She was not called as a witness to attest to this purported disclosure although Ms. S.W. testified that her mother remembers such a conversation and she believes that her mother gave a statement to police, perhaps in 2011. While there is no obligation on any party to call any particular witness, I am entitled to consider the absence of evidence on issues for which evidence could have been adduced but was not in assessing whether the charge has been proven.
[27] Although Ms. M.W. (the sister) has no recollection of the discussion shortly after the incident which is alleged to have occurred when she was 7 or 8 years of age, she does recall a discussion about the incident with Ms. S.W. and her mother in her late teens or early adulthood (i.e. later in life). As stated above, Ms. S.W. states that this conversation happened when she was 12 or 13. Ms. M.W. would have been 13 or 14 and therefore not in her late teens or early adulthood as she testified thereby contradicting the evidence of Ms. S.W. Ms. S.W. did not give any evidence of any conversation between her, her sister and her mother in her late teens or early adulthood although the issue of disclosure was thoroughly canvassed by Crown Counsel.
[28] There were other times, Ms. S.W. contends, that Mr. T.D. touched her inappropriately between the ages of 11 and 13 (which do not form part of this indictment). She says that he was fondling her breasts and giving her whisker rubs in front of others, including: Mr. T.D.’s wife, her sister, other family members and friends. Again, Ms. M.W. testified that she has no recollection of such occurrences. No other witness was called on this issue.
[29] Crown Counsel submitted that the Court should draw the inference that there was less contact between Ms. S.W. and Mr. T.D. as a result of the indecent assault between 1969 and 1971. Certainly that is one inference that could be drawn but there are others as well.
[30] For instance, as the sister (Ms. M.W.) testified: when she and Ms. S.W. became teenagers, there was contact, it was just less frequent. It was during her teens, Ms. M.W. testified, that Ms. S.W. appeared to have the most difficulty with drug addiction which could have resulted in less frequent visits with the T.D. family.
[31] Lastly, Ms. M.W. testified that during their 20’s and 30’s, they would interact with the T.D. family at the odd family event such as the funeral of their aunt in 2002. Put simply, they did not visit the T.D. family as often because they were involved in their own families and lives. It is not unusual or particularly surprising that extended family members might not see as much of each other as they grow older.
[32] Mr. T.D. testified that, indeed, the visits became less frequent to their home after the incident is alleged to have occurred. He provided a variety of reasons for that, including the fact that in 1973 his wife had a major heart operation and was hospitalized for a significant period of time. Between the mid 1970’s and 1980’s, both girls might attend with their mother and her boyfriend at his home and other times they would not. He did attend at the bail court when Ms. S.W. was arrested because her mother had asked him to post bail for her. He did take care of Ms. S.W.’s children for a few weeks while she was incarcerated. He believes that the last time he saw Ms. S.W. was in 2002 at the funeral of his wife.
[33] When questioned about the relationship with Ms. S.W. “vanishing” Mr. T.D. responded that it was just not with him: the families grew apart. In 2003 he moved to Newfoundland and had very little contact with any of Ms. S.W.’s family until his arrest.
[34] The above paragraphs outline some of the frailties with the evidence of Ms. S.W. Assessing credibility and reliability can be a difficult task as can defining all of the reasons why evidence leaves a Court in a reasonable doubt. But I am not tasked here with assessing the evidence adduced by the Crown in isolation. The accused testified and has denied the allegations. Just as I am required to consider his evidence in the context of all of the evidence at the trial I am similarly required to assess the Crown’s evidence in light of all of the evidence. I believe the exculpatory account provided by Mr. T.D. and in my view, such evidence gives rise to reasonable doubt at this trial.
[35] Mr. T.D. seemed to have a fairly good memory of where he was living and when. He agreed that he had kissed Ms. S.W. and Ms. M.W. – when they were babies. He admitted that he had the opportunity to fondle Ms. S.W. as she described: there was nothing stopping him from going into their room and touching Ms. S.W. as she described. The girls had visited the home and Ms. S.W. and her sister would stay overnight. He had to pass the bedroom in which they were sleeping to get to his own. His response to the suggestion that he could easily go into the room occupied by Ms. S.W. was genuine: “I had no reason to go” other than perhaps to console his own child.
[36] When asked if he had ever grabbed the breasts of Ms. S.W. in front of his wife or anybody else, he responded: “If my wife was there and she saw that happen, she would have thrown me out. That was the kind of wife she was.” In other words, he completely denied that he had touched the breast of Ms. S.W. in the presence of his wife as alleged by Ms. S.W. and his response (again) appeared genuine.
[37] Mr. T.D. readily conceded that there were no issues between himself and Ms. S.W. He said that he treated her “like any other kid” and “like one of his own”. They had no fights and no legal disputes, although he says Ms. S.W. did inquire why he and his wife did not care for her and her sister when foster care was required. Ms. S.W. does not recall such a conversation but believed that Mr. T.D. “looked down” on her family. Put simply, there appears no motive. But of course, motive is not an essential element of the offence.
[38] Despite the evidence of Ms. S.W. that she called and left a voicemail for Mr. T.D. alleging improper touching, he testified the first time he heard about his alleged misconduct, at all, was when two police officers knocked on his door in Newfoundland and arrested him. When asked if he was surprised, he said: “I was not surprised, I was shocked”. This, in my view, had the ring of truth.
[39] Although I agree with the submissions of Crown Counsel that Mr. T.D. was not precise about the time when contact ceased between himself and Ms. S.W. (i.e. whether it was in the mid 1970’s to 1980’s or after he moved to Newfoundland in 2003), I do not find that this is an inconsistency of such a magnitude that I have reason to reject his evidence as a whole. He stated during his evidence that he was not really sure when the visits with Ms. S.W. started or stopped.
Conclusion
[40] It is not my role as the trial judge to determine which of the versions I accept as true – that of Ms. S.W. or Mr. T.D.. To approach my analysis in that way would be in error. This was confirmed by the Supreme Court of Canada in R. v. C.L.Y.,[7] para. 8:
[The purpose of the W.(D.) analysis] was to ensure that triers of fact – judges or juries – understand that the verdict should not be based on a choice between the accused’s and the Crown’s evidence, but on whether, based on the whole of the evidence, they are left with a reasonable doubt as to the accused’s evidence.
[41] Therefore, I consider the principles in R. v. W.D. In assessing the evidence of Mr. T.D., I have considered his evidence in the context of the whole of the evidence. I have not looked at it alone or in isolation. Having listened to the evidence of Mr. T.D., I have concluded there is no reason to disbelieve it. His evidence raises a reasonable doubt in light of what he attested to at trial. He testified in a straightforward manner and described that the events simply did not happen. He remained unshaken during a skillful cross-examination.
[42] There was no evidence to contradict that of Mr. T.D., other than the evidence of the complainant as I have described above. In light of all of the evidence, I am left with a reasonable doubt as to whether Mr. T.D. indecently assaulted Ms. S.W. as charged. Accordingly, he is acquitted.
Kelly J.
Released: September 11, 2014
court file No.: CR/12/30000824/0000
DATE: 20140911
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
T.D.
REASONS FOR JUDGMENT
Kelly J.
Released: September 11, 2014
[1] (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.)
[2] 2006 40088 (ON CA), 218 O.A.C. 37 reiterated in R. v. P.R. 2014 ONCA 131 at para. 4
[3] Ms. S.W. testified that she was charged in 1987 at age 24.
[4] Ms. S.W. testified that she said something to Mr. T.D. like: “Remember what you did to me, you’re lucky I’m not going to the authorities”.
[5] Ms. S.W. also informed police that she believed there were many victims of Mr. T.D., including other family and neighbours. She also mentioned that she felt that he was capable of both kidnapping and murder (referring to a young girl by the name of Nicole who had lived in his neighbourhood and had gone missing, never to be found). She testified that she continues to fear for her life.
[6] Ms. S.W. testified that she got a call from her son’s girlfriend in September, 2010. The girlfriend told her that Mr. T.D. had molested Ms. S.W.’s son: Joey.
[7] 2008 SCC 2, [2008] 1 S.C.R. 5