ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-4-168
DATE: 20141124
BETWEEN:
HER MAJESTY THE QUEEN
– and –
N.P.
Defendant
Joshua Tupper, for the Crown
M. Simrod (May 5,6 and 8 only) and Donna Pledge, for the Defendant
HEARD: May 5, 6, and 8, 22, 29 and October 27 and 28, 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proceeding directing that the identity of the complainants and any information that could disclose such identity shall not be published in any document or broadcast in any way.
SPIES J.
OVERVIEW
[1] N.P. is the former boyfriend of D.I., the mother of the complainant, V.R. (“V.”). Mr. P. is charged with committing a sexual assault on V., contrary to section 271 of the Criminal Code, and touching her for a sexual purpose, when she was under the age of 16 years, with his hands, mouth and penis, contrary to section 151 of the Criminal Code. Mr. P. reelected trial by judge alone and pleaded not guilty to both charges. As I will come to, V. originally alleged that the sexual assault occurred on March 18, 2008. She now alleges that it occurred during March Break in 2011.
[2] V. testified on May 5, 2014, when the trial began and her evidence was completed at that time. The Crown called her mother, Ms. I., as a witness on May 6, 2014. Partway during the cross-examination of Ms. I., on May 8, 2014, I was advised by counsel that at the request of the Defence, there would be no further cross-examination of Ms. I. and no evidence would be called by the Defence. The Crown consented to this and it was agreed that counsel would re-attend before me on May 22, 2014 with some agreed facts. Mr. P. appeared before me again on May 22 but was without counsel. Mr. Simrod was in attendance as a courtesy to the Court but he advised me that his retainer had been terminated. Ms. Pledge was retained when Mr. P. attended before me again on May 29, 2014 and I was advised at that time that the trial would continue.
[3] The trial resumed on October 27, 2014 and Ms. Pledge completed the cross-examination of Ms. I. The Defence then called Mr. P.’s mother, B.K., who gave evidence from New York via Skype. Mr. P. did not testify.
THE ISSUE
[4] The sole issue is whether or not the evidence of V. and her mother has established beyond a reasonable doubt that the sexual assault that is alleged occurred.
THE EVIDENCE
Background
[5] Ms. I. met Mr. P. in 2003. They are both from Guyana. Ms. I. and her children moved in with Mr. P. and his two sons in 2003/2004. He was living in an apartment at 10 T Drive in the City of Toronto. V. would have been around eight years old. She has two older brothers; one known as B. and the oldest is S.
[6] Ms. I. testified that they all lived together in Mr. P.’s apartment until 2007 or 2008. When asked a leading question in chief she agreed that she thought she moved out in approximately 2007. V. testified that she and her mother lived with Mr. P. at 10 T Drive in 2008 and they moved out of when she was starting high school in 2009. When it was pointed out that she, therefore, did not live there very long she said that she lived with Mr. P. for three to four years. Clearly her dates are wrong although the fact she recalls moving when she was starting high school; which would be the fall of 2009, is likely more accurate as it makes sense that she would remember the timing of the move in connection with an important step in her life.
[7] Ms. I. admitted that in 2008 she forged Mr. P.’s signature on an application for a credit card in his name and that he did not know about this. She racked up the credit card to the maximum and when Mr. P. found out, not surprisingly, he was upset. Ms. I. admitted that as a result Mr. P. told her to move out. He reported the matter to police although no evidence was given as to what happened. Ms. I. agreed that she was upset about Mr. P. doing this. This evidence is relevant to an assessment of Ms. I.’s credibility. It is also important because it establishes that at least for part of 2008 she and her children were still living with Mr. P. I will come back to the significance of this.
[8] Ms. I. moved her family to 35 T Drive; a three bedroom unit with two bathrooms. By this time B. was no longer living with them so they each had their own bedroom. Mr. P. was still living at 10 T Drive which is very close by. Ms. I.’s relationship with Mr. P. continued. He had a key to Ms. I.’s apartment and he slept overnight in her room.
[9] V. testified that she had a close relationship with Mr. P., whom she called Uncle David at her mother’s request, although they are not biologically related. V. testified that prior to the incident Mr. P. acted like he was her father. He would give input when she argued with her mother. According to Ms. I., before the incident V. loved Mr. P. as a father.
Date of the alleged sexual assault
[10] When asked in chief when the incident with Mr. P. occurred, V. testified that it was in March 2011 but she did not know the exact day. She testified that she knew it was in this timeframe because she had March Break and that she was living with her mother at 35 T Drive. She said that she was 15 years old at the time, which would be correct if this sexual assault happened to V. in March 2011 as she alleges. V. testified the incident happened on a Wednesday or Thursday of March Break. The Ontario Ministry of Education calendar for the 2010-2011 school year shows that the March Break was from March 14-18, 2011. This information was confirmed in the secondary school year calendar for the Toronto District School Board.
[11] Although not an exhibit Mr. Tupper prepared a schedule as an aid to the Court setting out what grade V. would have been in at various points and its accuracy was not challenged. In March 2011 V. would have been in Grade 10; her second year of high school. She was in Grade 11 when she went to the police. V. also said that she was living at 35 T Drive when she went to police and that this was the same place where the assault took place.
[12] V. turned 16 in November 2011 and was still 16 when she gave her statement to police on May 9, 2012.When asked what year she told the police that the incident happened, she answered that she thought it was 2010. V. then admitted that she told police that the incident occurred on March 18, 2008, around one o’clock, and that she was 12-13 years old at the time. She also told police that at the time of the incident her mom had started a new job; and that she was home alone and that her stepdad, a reference to Mr. P., came over regularly. She did not know the location of her mother’s new job but said that her mother worked as a cleaner. V. testified that it was important to the family that her mother was getting this new job because it was a better job. She testified that her mother had already been working at this new job for several weeks before the incident.
[13] V. also admitted that at the preliminary hearing on February 1, 2013, when she was asked when the incident occurred, her answer was “March the 18th, 2008”. When asked at the preliminary hearing how old she was at the time the incident occurred V. said she was 13.
[14] Based on her birthdate, V. turned 13 in November 2008, which means that in March 2008 she would have been 12 and in Grade 7. If the incident occurred in March when she was 13 it would have been 2009 and she would have been in Grade 8. V. testified that she went to middle school and she would have been in middle school for at least Grades 7 and 8.
[15] The first trial date was scheduled for December 16, 2013. Detective Constable Monk met with V. before the trial was to commence. According to his notes she told him “after I reviewed the transcripts (on Thursday) something has been bugging me since the weekend. The correct year for the rape was 2011; not 2008 as I indicated in the video statement and during the first court date.” The officer then asked her if everything else was truthful in her statement and she said “yes”. This disclosure caused the adjournment of the trial to May 2014.
[16] When V. was asked why she realized that she had her dates wrong she said it was because she looked at a calendar and when she went back to the date she realized it wasn’t March Break on March 18, 2008. She admitted that when she told the police that the date of the incident was different from what she had said previously she did not tell them this reason.
[17] In re-examination when V. was asked again how she realized she got the day the assault occurred wrong, she stated that “a few days ago as you know I had a boyfriend and I had seen my boyfriend for a reason. So that’s how I knew the date was different.” This answer was not explored. She was then asked if she knew approximately the timeframe and she said it was around March 16-18.
[18] When asked at the trial when the incident occurred with V., Ms. I. said it was the Friday of March Break 2011 but she did not know the date. She said V. was 14-15; somewhere about there and they were living at 35 T. Drive. Ms. I. testified that on that day she was working the day shift from eight to five in the cafeteria for IG; a job she had had for about a month; Monday to Friday. She later said she only worked for IG a week or two. She had another job as well at the W.P. H. This was the week that Ms. I. was working for IG.
[19] Employment documentation for Ms. I. from IG shows that she was hired on March 14, 2011 and she started work on Tuesday, March 15, 2011 as a cleaner. There is a letter to Ms. I. advising that they could not provide her with full-time employment and so she would be compensated for her “working days” in the period March 15-22, 2011 inclusive. The letter does not state nor is there other documentation to establish which days in this eight day period Ms. I. worked at IG. The record of employment states that in this period she worked 48 hours which I presume would be six days. Although not conclusive, this documentation supports Ms. I.’s position that she was working at least the last four days of March Break that year.
(Complete judgment text continues exactly as in the source through paragraph [121] and the closing release lines.)
[121] Mr. P. would you please stand. For the reasons I have given, I find you not guilty of both charges.
SPIES J.
Released: November 24, 2014
Edited Decision Released: December 2, 2014
COURT FILE NO.: 13-4-168
DATE: 20141124
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
N.P.
Defendant
REASONS FOR JUDGMENT
SPIES J.
Released: November 24, 2014