ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1729/12

DATE: 2014-12-11

BETWEEN:

HER MAJESTY THE QUEEN

– and –

L.C. a.k.a. L.C.

Defendant

Tyler Powell, for the Crown

Kevin McCallum, for the Defendant

HEARD: October 15-17, 2014

REASONS FOR JUDGMENT

M. J. Donohue, J:

Subject to any further Order by a court of competent jurisdiction, an Order pursuant to s. 486.4 of the Criminal Code has been made in this proceeding directing that the identity of the complainants and any information that could disclose such identities, including the names of other Crown witnesses, shall not be published in any document or broadcast in any way.

OVERVIEW

[1] The defendant is charged with two counts of obstruction of justice and two counts of intimidation of a justice system participant.

[2] The defendant’s daughter, K.S., and her daughter’s friend, A.D., were complainants in sexual assault charges laid against the defendant’s husband, A.G.

[3] A witness, K.D., observed the defendant having discussions with K.S. about the veracity of her statement to police.

[4] K.S. later recanted her statement to police.

[5] The defendant then had a spirited interaction with A.D.’s father, at his house, about the veracity of A.D.’s statement.

[6] The issues in this case are the credibility of the witnesses and the adequacy of proof presented at trial.

THE EVIDENCE HEARD AT TRIAL

Agreed Facts

[7] On August 14, 2010, A.G. was arrested and charged with two counts of sexual assault and two counts of sexual interference, regarding incidents that allegedly occurred, with K.S. and A.D., given the statements that both K.S. and A.D. had provided to the police.

[8] K.S.’s parents are L.C. (the defendant) and M.S.. L.C. and M.S. are no longer together as a couple. The defendant is married to A.G.. M.S. is in a romantic relationship with D.C..

[9] K.S. and A.D. were neighbours and friends. K.S. was born […], 1998, and A.D. was born […], 1999.

[10] The facts of the allegations underlying the charges of obstruction of justice and intimidation (regarding the defendant and K.S.) occurred within a few days of A.G.’s arrest of August 14, 2012.

[11] On August 15, 2010, Constable Duncan received a consent buccal swab from A.G..

[12] The facts underlying the allegations that comprise the charges of obstruction of justice (regarding the defendant and A.D.) occurred on August 31, 2010.

[13] On November 5, 2010, the Centre of Forensic Science matched A.G.’s buccal swab to the swab taken from A.D.’s underwear.

[14] On February 29, 2012, A.G. was committed to stand trial, regarding the offences related to A.D. However, the counts related to K.S. were dismissed.

[15] A.G.’s trial was scheduled to commence, regarding the remaining counts, on October 24, 2014.

Evidence of the Witnesses

The Night Before

[16] The defendant testified that at the time of the allegations against Mr. A.G., she lived in a house with Mr. A.G., her daughter K.S. (aged 11) and her daughter M.G. (aged 2 ½). After the arrest and departure of Mr. A.G., she said her daughter, K.S., came in to her bedroom and said, “Mom, I have to tell you something I done. I was never sexually assaulted by A.G.”.

[17] Under cross-examination, the defendant recounted more fully that K.S. spoke to her just before bed, saying, “Mommy, I need to tell you something about what I lied about; I was never sexually assaulted by A.G.; A.G. didn’t touch me.” The defendant agreed that K.S. referred to Mr. A.G. as ‘Daddy’ but the defendant explained that she, herself, referred to him as A.G..

[18] The defendant testified that K.S. said she had lied because A.D.’s older sister, K.D. had said to ‘go along with the story and tell the police’. K.S. told her mother she was really sorry that she lied.

[19] The defendant said K.S. also told her that she lied because she wanted her mother and father (the defendant and M.S.) to get back together.

[20] The defendant’s evidence was that K.S. said she was telling the truth that night, that she had lied to the police.

[21] The defendant stated she believed K.S. that night. Later in her testimony the defendant said she wasn’t sure if K.S. was telling the truth and she didn’t know what to believe. The defendant testified that she still does not know, “as a mother”, whether K.S. was telling the truth.

[22] She said this was not a long conversation. She was tired after a day caring for her baby, M.G., and she just wanted to go to bed. She agreed, however, that this was an important conversation following the arrest of her husband and that she was shocked and sad.

[23] Under cross-examination, the defendant testified that she believed her daughter that night but then said she wasn’t sure her daughter was telling the truth. This was why she took K.S. to M.S.’s apartment the next day.

[24] K.S. was 15 when she testified at trial. She acknowledged that she made a complaint to the police regarding her stepfather, A.G., around August 2010, when she was 11 years old. She changed her story after speaking with police. She recounted at trial that one evening she came to her mother’s bedroom and said that “it was a lie”; that it had never happened; that her step-dad had not sexually assaulted her.

[25] K.S. said that her mother was upset that she had lied but was okay with it as she had told the truth. She recalls the conversation lasting a few minutes.

[26] Since these incidents, K.S. went to live with her father M.S., and afterward with her uncle, since May 2013. She received a call from her mother’s lawyer to come to testify about these charges. She advised that she has not talked to her mother about it.

The Next Day at M.S.’s Apartment

[27] In chief, the defendant testified that on the following day, after K.S.’s disclosure, she took both her daughters over to M.S.’s apartment on H[…] Avenue. They arrived in the late afternoon.

[28] The defendant said when she arrived at Mr. M.S.’s apartment she stated, “There is something your daughter wants to tell you.” The defendant explained that as M.S. was K.S.’s biological father, he should know the truth of what his daughter said. She wanted him to know what K.S. had told her. They were invited into the apartment. They were there for about 45 minutes.

[29] She and K.S. sat together on the couch. Her baby daughter M.G. ran about the living room. Mr. M.S. was doing the laundry. Ms. D.C. was in the room as well. A.D.’s (the other complainant’s) older sister, K.D., arrived part way through the discussion.

[30] The defendant described the discussion with K.S. about what happened. The defendant said they needed to know “the truth of what happened”. She stated that she told K.S., “If you were assaulted sexually, we need to know; if not, we need to know.” K.S. told them that “it didn’t happen to her and she lied about it.” K.S. was crying, Ms. D.C. was crying and the defendant, also crying, comforted K.S.

[31] The defendant explained, at trial, that she needed to know if she was living with a sexual molester. She said she needed to know to protect her children.

[32] Under cross-examination, she stated that they were all talking. They said, “Honey, if you are lying, I need to know the truth.” K.S. responded that she was telling the truth, that she had lied. The defendant was asked whether K.S. agreed she had lied, at the beginning, the middle or the end of the conversation. She said she was uncertain.

[33] The defendant estimated that she asked her daughter if she was lying about three-four times. She asked because she knew her daughter tells lies.

[34] She said that M.S. was involved in the conversation as well and asked K.S. if it was really the truth, that she was lying.

[35] The conversation was between 30 and 45 minutes long. The defendant said they did not only talk about this case but she could not remember what else was discussed. She agreed K.S. was crying and upset but not “shaking”.

[36] The defendant testified that at no time did she try to get K.S. to change her story, either the night before, or on that afternoon at the apartment.

[37] Under cross-examination she agreed that Mr. A.G. had been contributing to the bills of the household and that he paid more of the bills than she did. He had a business so that even though he initially went to jail she said things were not that difficult, financially. She agreed that if he went to jail for the offences, that it would affect her financially. She said she never said to K.S. that they would lose their home because of this, nor did she say that K.S.’s little sister would lose her dad.

[38] The defendant said those issues were not her main concern. Her main concern, she said, was if her daughter had been sexually assaulted.

[39] The defendant testified that K.S. said the reason she had lied was to get her parents back together. Later in her testimony, she said K.S. explained she had lied because K.D. said to “go along with the story and tell the police.”

[40] After this conversation she took both her daughters straight home.

[41] At the end of the conversation that day, the defendant testified that she thought K.S. was telling the truth. She added that she still needed to know if A.D. and K.S. were molested.

[42] The defendant was asked whether she believed the allegations and she replied that she still does not know the truth. She said she cannot say if Mr. A.G. is guilty or innocent. She would not answer whether she was personally okay with having her youngest daughter have unsupervised access with Mr. A.G.. She said that, if he was found guilty then she hopes ‘he gets what he deserves’. She said she has known him for 24 years and does not believe he is capable of molesting children. But then again she said she does not know if he is capable of it. She remains unsure, despite the DNA evidence that was later obtained.

[43] K.S., in her testimony at trial, recalled the conversation at M.S.’s apartment. Her father, M.S., was there, as well as his girlfriend, D.C.. She believed her brother N.S. was present as well.

[44] K.S. remembers sitting on the couch with her mother. She was asked if she was telling the truth and she told them she wasn’t telling the truth about Mr. A.G. sexually assaulting her; that it never happened. She said her mother did not try to get her to change her story or influence her. Her mother never said, “We will lose the house” or “your sister will not have a dad.”

[45] K.S. described that her father, M.S. was sitting on the comforter and D.C. was there as well. She recalls she was scared and crying but not shaking. She agreed at times her mother used a loving voice with a hug and later a firm voice.

[46] Under cross-examination she said she did not think it strange that her mother was asking the same questions that had been asked and answered the night before. She said her dad needed to hear the answers. Her mother asked her several times if she had lied. K.S. said yes, she had lied. She said her mother may have said she did not want Mr. A.G. to go to jail.

[47] K.S. agreed the conversation was 30-45 minutes while they questioned her. At the end she said she had lied to the police and she was sorry. She stated at the beginning she had not wanted to admit to the lie in front of her dad.

[48] K.S. said she lied because she wanted her mother and M.S. to get back together. When that did not work out, she admitted to lying about it. She said she also wanted to back up her friend (A.D).

[49] K.S. said she understood that it was bad to lie to police and she could go to “juvie” for doing so. She said she was willing to risk it.

[50] A.D.’s older sister, K.D., testified that she had been present during part of the time that K.S. was being questioned at M.S.’s apartment that day. She thought she observed their conversation for about 15 minutes. Under cross-examination she agreed it may have been ten minutes. She thought she had come in half way through the conversation.

[51] K.D. admitted to having a criminal record for intimidation and obstructing justice as a youth in 2012. K.D. pled guilty to the charges. She admitted that she had called a witness and offered him money to not go to court and to drop charges against her friend. She said she was led on by bad friends to do this and later realized it was wrong.

[52] K.D.’s younger brother, Austin, was friends with K.S.’s younger brother Nicholas, who lived at M.S.’s apartment on H[…] Avenue. K.D. had walked both boys over to M.S.’s apartment to get Nicholas’ things for a sleepover back at her house. As the boys were busy in Nicholas’ bedroom, she sat at the kitchen table and observed the adults’ conversation with K.S.

[53] K.D. was 15 years of age at the time. She is now 19.

[54] K.D. saw K.S. on the couch with her mother. M.S. was standing there, as was his girlfriend D.C.. They were facing K.S. She thought that K.S. looked very upset and was shaking and timid.

[55] She observed the defendant ask her daughter if she was telling the truth about the situation. K.S. was upset and shaking and repeatedly said, “I am not lying.” K.D. thought K.S. responded this way three-four times.

[56] K.D. heard the defendant say, ‘do you realize that him getting charged can result in her losing her house and her little sister won’t have a place to live.’

[57] Further she heard the defendant ask, “are you lying about the situation?”

[58] K.D. observed that at times the defendant’s tone of voice was stern as if she was mad at K.S. When K.S. was more upset, her mother would hug and comfort her with a motherly tone of voice but then go back to questioning her angrily, saying “Are you sure you are not lying?”

[59] K.D. said she heard the defendant say three-four times that, “you won’t have a place to live.”

[60] K.D. said D.C. and M.S. were also contributing to the conversation. In response to M.S. saying, “Well, maybe it did happen” she heard the defendant respond, “K.S. is lying. I don’t believe what happened.”

[61] Under cross-examination, K.D. would not agree that the defendant was asking for the truth. K.D. said the defendant was asking K.S. to change her story. K.D. felt the defendant was being manipulative.

[62] As K.D left, she observed K.S. sitting on the couch, leaning forward, upset, shaky and crying. She said she did not intervene as she was only 15. She was scared.

[63] Under cross-examination K.D. admitted that it was hard to remember what happened four years ago. She had to review her statement. She mixed up the dates, thinking it occurred in April. She said she did not discuss what had happened between her father and the defendant at their house but had heard some things.

Visit to the D. House

[64] The defendant recalled that on August 31, 2010, she went to visit the D. home. She said she couldn’t recall why she chose that day. She said she wanted to know the truth about A.D.’s allegations against the defendant’s husband.

[65] She asked if M.S. wanted to come along. He said no, but D.C. said she would come. Ms. L.C. took her young daughter, M.D. in her arms and walked down the hill with her daughter, K.S. and D.C. to the D. house. She either rang the bell or knocked.

[66] Mr. A.D.1 answered. The defendant said she asked him if he could kindly let them in so they could talk about whether the girls were actually sexually assaulted or not. He said no and came outside.

[67] K.S. testified that she went with her mother, younger sister and D.C. to the D. house. She recalls her mother knocking on the door, Mr. A.D.1 answered and offered K.S. to come inside. She said she looked at her mother who indicated ‘no’. She recalls the adults began to talk but does not exactly remember what was said.

[68] The defendant testified that she told Mr. A.D.1 that K.S. admitted to lying to police and that Ms. L.C. needed to know the truth if A.D. had lied.

[69] K.S. testified that her mother said that she wanted to know if A.D. was telling the truth or lying.

[70] The defendant said Mr. A.D.1’s response was that it did happen to his daughter and he got upset. She stated she, too, got upset. She tried to tell him that she just needed to know if it happened or not.

[71] The defendant testified that Mr. A.D.1 said he felt sorry for K.S. having a mother like her. She said they exchanged foul language. She called him a stupid asshole or a stupid idiot and he called her a bitch and a whore. He asked them to leave the property. She said they walked on the sidewalk and he came toward them as if to chase them off the property.

[72] K.S. testified that Mr. A.D.1 swore at her mother saying she was a whore and a cunt. She described him as being really angry and frustrated. She described her mother as being calm the whole time and that Mr. A.D.1 was between a six and a seven on an anger scale of ten.

[73] The defendant testified that she never intended to say this was ruining her life. She denied saying that her daughter would lose their father and their house.

[74] The defendant said, she told him, “If the evidence is false, that A.D. is lying, I will sue you.” She denied that she wanted to scare him by saying this. She said she was angry and upset. K.S. in her testimony denied her mother threatened a lawsuit at all.

[75] The defendant testified that she had no intention of having A.D. change her story that day. She said she never asked to speak to A.D. that day and did not ask if A.D. was home. Under cross-examination she said she was not expecting to see A.D., even though it was mid-day. She agreed that yes, she knew A.D. might be home that day. She said she wanted to speak with Mr. A.D.1. She agreed that eventually she wanted to hear from A.D., but she said she did not want to influence anyone. She apologized to the court and said she did not know she was doing anything wrong by going there.

[76] The defendant agreed that she anticipated it would be an emotional conversation and she brought D.C. as a witness in case one of them got out of line, and in case they talked to A.D.

[77] K.S. testified that the purpose of going to the D. house was to talk to A.D. and find out the truth. She agreed the plan was to go and talk with A.D.

[78] The defendant agreed that Mr. A.D.1 asked her to leave the property more than once but she stayed to talk with him.

[79] A.D.1 testified about the day the defendant came to his house. He was home that day, as was his mother, his daughter A.D., and their son Austin. He heard the doorbell and answered.

[80] Mr. A.D.1 said that the defendant was there with M.S.’s girlfriend, Ms. D.C., and K.S. He does not believe the defendant had another daughter with her. He said that the defendant said she wanted to come in; that they needed to talk. He said he responded, no, it was not a good idea.

[81] He described the defendant, at that point, as not overly emotional but she was trying to manoeuvre around him to get inside the house. He said he gestured with his hands to move them with him outside on to the driveway. He described it as corralling them out. He shut the door behind him. He said he did not have to exert much effort to get them back. He moved them down the driveway and there was no fight about it.

[82] Mr. A.D.1 said that in their conversation, the defendant became progressively more heated and aggravated. She was saying that she needed to talk to his daughter because she was lying about what happened. However, later, under cross examination he said he did not recollect her actually asking to speak to A.D. The defendant told him that K.S. had admitted to lying and that he needed to get his daughter straightened out to tell the truth because she was lying.

[83] Mr. A.D.1 recalled that K.S. then spoke and said, “I don’t know if A.D. is lying,” but her mother told her, “You don’t know what you’re talking about. Be quiet.”

[84] When questioned about this evidence of her speaking to K.S. in this way, the defendant testified that she did not say this. Under cross-examination, she agreed that K.D. may have said that day, “It could have happened to A.D.” but the defendant denied that she told K.D. to “shut up.”

[85] Mr. A.D.1 said the defendant asked him if he knew how much damage was being done and that he was destroying her life; that she needed to speak to A.D. He said he responded, saying, “That is not going to happen.” The defendant said, “my husband is in jail” and Mr. A.D.1 said he responded saying, “good”.

[86] He stated that the defendant then asked, “don’t you feel bad for what is happening and the damage you are creating?” His response was that he felt sorry for K.S. He says that the defendant asked, “why, because she is going to lose her home?; because her baby sister is losing her father?, is that why?” He says he replied, “no, because she has a mother who won’t stand up for her.” In response, Mr. A.D.1 says the defendant repeated saying, “you don’t feel sorry because she is going to lose her home?”

[87] Mr. A.D.1 further testified that the defendant said, “So you are not going to talk to your daughter?” He told her to leave. At this point he said her voice was loud and it was a noisy confrontation in front of his neighbours. He said he was concerned about A.D. and his mother coming to the door to see what was happening. He began edging them toward the end of the sidewalk. He said he asked her to leave two-three times. He agreed it was easy to get them to leave.

[88] Mr. A.D.1 estimated that the defendant said A.D. was lying five-six times. He said her tone was not calm. It was combative and assertive. He estimated her anger level to be at a 7.5 on a scale of 10. He thought when she got loud that he probably got loud as well.

[89] He recalled the defendant saying, “we are going to sue you. We are going to fucking sue you.” He asked, “for what?” Mr. A.D.1 testified how shocked he was that she threatened a lawsuit when it was her husband charged with assaulting his daughter.

[90] He said he was almost back at his door when he heard her yell, “you are fucking your daughter.” He said he was shocked and he thinks he called her a bitch. He went into the house and called the police. He said he wanted to keep her away from his door. He denies calling the defendant a whore or a cunt.

[91] Under cross-examination he estimated that the exchange lasted about eight minutes. He agreed that it had been four years and he does not remember the altercation exactly. He disagreed that it was a ‘conversation’; rather it was a ‘confrontation’. He said he was ‘badgered’ throughout. He thought the other woman with her was for “back-up, riding shot-gun, a cheerleader”. He said at first he did not know who she was but she said, “You do so know me.” After a bit, he recognized her. He recalls her also saying, more than once, that A.D. was lying.

[92] He said he felt as if they were trying to intimidate him to try to get A.D. to recant her statement. Under cross-examination he said at first that he was not intimidated by her except that he was upset his neighbours would hear the fight. He then said he was slightly intimidated.

[93] He felt the tenor of her conversation was not that the defendant wanted to know the truth. Rather, it was that his daughter was lying, that he was to make sure she admitted to lying and that the defendant’s life was falling apart. He agreed that the defendant may have said that she needed to know the truth, but she did not say it more than once. He agreed that he was asked at the preliminary inquiry, “all she wanted to do was make sure your daughter was telling the truth” and that he had answered yes then.

[94] When Mr. A.D.1 was asked about K.S. saying she lied to get her parents back together, he said he thought it was a “complicated scenario for two children to come up with a sexual assault to get rid of one daddy.”

[95] He called the police that day regarding the encounter. Mr. A.D.1 and his daughter K.S. gave their statements to police regarding these events almost a month later. He does not believe they discussed the events between them. He said he just wanted the defendant warned away from his property. He said he did not know these incidents would be something about which he and K.D. would end up testifying.

[96] Mr. A.D.1 has a prior conviction, in 1982, on a plea of guilty to using a stolen credit card. Given the age of this record I do not give the prior conviction any weight in assessing his credibility.

THE LAW

[97] The charge of attempting to obstruct justice under 139(2) of the Criminal Code requires that:

a. that the Accused must have done enough for there to be a risk, without any further action by him or her, that injustice will result; and

b. the attempt by the accused to obstruct justice must have been wilful. A defence of honest mistake of fact is a defence to the charge of obstruction of justice: R. v. Yarlasky (2005), 2005 3936 (ON CA), 195 O.A.C. 188, [2005] O.J. No. 606 at para. 2.

[98] In attempting to obstruct, pervert or defeat the course of justice, the following principles have been found applicable, as summarized by Justice Leach in R. v. Melo, 2014 ONSC 1364 at para. 23, [2014] O.J. No. 1879:

• Although "the course of justice" in this context includes judicial proceedings, either existing or proposed, it is not limited to such proceedings. The offence under s.139(2) also includes attempts by a person to obstruct, prevent or defeat a prosecution which he contemplates may take place, notwithstanding that no decision to prosecute has been made; see R. v. Spezzano (1977), 1977 1371 (ON CA), 34 C.C.C. (2d) 87 (C.A.).

• The term "course of justice" also includes an investigatory stage which may lead to a prosecution: R. v. Wijesinha, 1995 67 (SCC), [1995] 3 S.C.R. 422.

• Although framed in the language of an "attempt", s.139(2) in fact creates a substantive offence, the gist of which is the doing of an act which has a tendency to prevent or obstruct the course of justice and which is done for that purpose; see R. v. May (1984), 1984 3489 (ON CA), 13 C.C.C. (3d) 257 (Ont. C.A.), leave to appeal to the S.C.C. refused, [1984] 2 S.C.R. vii.

• It is not necessary that the tendency materialized; see R. v. Graham (1985), 1985 3644 (ON CA), 20 C.C.C. (3d) 210 (Ont. C.A.), affd 1988 94 (SCC), [1988] 1 S.C.R. 214. The gravamen of the offence under s.139(2) is the wilful attempt to obstruct justice, and it does not matter that the attempt was not only unsuccessful but could not have been successful; see R v. Hearn (1989), 1989 3938 (NL CA), 48 C.C.C. (3d) 376 (Nfld. C.A.), affd 1989 14 (SCC), [1989] 2 S.C.R. 1180.

• The offence nevertheless requires the specific intention to obstruct justice; see R. v. Charbonneau (1992), 1992 2979 (QC CA), 74 C.C.C. (3d) 49 (Que.C.A.).

[99] The accused has also been charged with intending to provoke a state of fear and impede testimony at a judicial proceeding of a justice system participant contrary to s. 423.1(1).

[100] Section 423.1 provides that no one shall threaten to use violence against a justice system participant in order to impede him or her in the performance of his or her duties. The essential elements include a threat to use violence and intent to intimidate or instill fear in the complainant. The target must be a justice system participant, and the alleged threat must be for the purpose of impeding him or her in the performance of their duties: R. v. Gaete, 2011 ONSC 2957 at para. 31, [2011] O.J. No. 2459.

[101] As stated by Justice Shaw in R. v. Treleaven, 2012 ONSC 6930 at para. 62, [2012] O.J. No. 6193, s.2 of the Criminal Code defines a “justice system participant” as:

(b): a person who plays a role in the administration of justice, including

(v): an informant, a prospective witness, a witness under subpoena and a witness who has testified.

[102] The belief of the defendant that the testimony they are suppressing is false was reviewed in R. v. Walker 1972 1296 (ON CJ), [1972] O.J. No. 2121, 7 C.C.C. (2d) 270 citing Rex v. Silverman (1908), 1908 194 (ON CA), 17 O.L.R. 248, 14 C.C.C.79 (C.A.), “The mens rea or guilty mind involved would therefore seem to be the intentional use of bribes or threats or other corrupt means for the express purpose of dissuading a person from giving evidence. In the light of the Silverman case this means any evidence or certain evidence. The Silverman case also makes it clear, that where the prohibited means are employed, it is immaterial whether the accused believes the evidence he seeks to suppress is true or false. The belief of the accused in the falsity of the evidence concerned is material only where there is neither threat, bribe, nor other corrupt means employed by the accused.” para. 19.

[103] Similarly, in R. v. Pare, 2010 ONCA 563, [2010] O. J. No. 3644, 268 O.A.C. 118, the Ontario Court of Appeal stated of s. 139(3)(a), “The gist of the offence is the use of corrupt means to influence a witness. As is said in some of the cases, merely attempting by reasoned argument to have a witness tell the truth is not an offence. But attempting to persuade a witness to change their testimony, even to change the testimony to what the accused believes is the truth, is an offence where the means of persuasion is corrupt.” para. 9.

[104] The Court in R. v. Pare also commented on threats of civil suits: “In some circumstances a threat to exercise legal rights by instituting a civil suit could amount to corrupt means depending upon the accused’s intent.” (at para. 12)

[105] There is no onus on an accused to disprove the Crown’s case. As always one must be guided by the approach set by the Supreme Court of Canada in R. v. W.D. 1991 93 (SCC), [1991] 1 S.C.R. 742, at pp.757-58. In assessing the evidence, if I do not believe the defendant, and her evidence does not leave me with a reasonable doubt, she can only be convicted if the rest of the evidence proves the charges beyond a reasonable doubt.

Analysis Re Directed Verdict Ruling

[106] At the conclusion of the Crown’s case the defence moved for a ruling of a directed verdict of acquittal.

Regarding Intimidation re A.D.

[107] The Crown conceded that charge 4 should be dismissed. This charge was pursuant to s. 423.1(1) of intimidation and impeding testimony by provoking a state of fear in A.D. There was no evidence of this and I dismissed the charge.

Regarding Intimidation and Obstruction re Statement of K.S.: (Counts 1 & 2)

[108] The defence argued that on the evidence of K.D. alone the intent to obstruct was not made out.

[109] I found that there was evidence from K.D. to at least infer that the defendant’s handling of her daughter, what K.D. said the defendant said, and how she said it, could result in K.S. recanting her statement. This would then be some evidence to support the lesser included offence of attempt to obstruct.

[110] The defence argued that s. 423.1(1) refers to the defendant impeding testimony by “repeatedly communicating” with K.S. and that the evidence did not satisfy the requirement of “repeatedly”.

[111] I was satisfied, however, that the requirement of “repeatedly” was made out by K.D.’s evidence that the defendant sternly asked her daughter, several times, if she was lying. This occurred during the 15-minute session when Ms. D. was present.

[112] Ms. D. also described the cycle of stern questioning and soft comforting occurring five-six times in her presence, which also lent support to evidence of “repeatedly communicating”.

Regarding Obstruction re Statement of A.D: Count 3.

[113] The defence argued that the requirement of “repeatedly communicating” was not met in that there was no direct communication with A.D. and the interaction between the defendant and Mr. A.D.1 was only eight minutes.

[114] I am satisfied that there is some evidence to support the lesser included offence of attempt to obstruct. (I refer to evidence of the defendant’s behaviour with A.D.’s father outside his house, given the accusations of lying, the threat to sue and appeals to sympathy described by Mr. A.D.1.)

[115] Although it was only an eight minute conversation, it was described as combative, with several requests by Mr. A.D.1 to leave the property and the defendant’s persistent and increasingly aggressive demands satisfying the requirement for “repeatedly”.

[116] Accordingly the request for a directed verdict of acquittal was denied.

THE POSITION OF THE PARTIES

[117] It was the Crown’s position that where the evidence conflicted, the evidence of A.D.1 and K.D. should be considered more reliable and credible than that of the defendant and K.S.

[118] The Crown urged the court to find that the D.s’ testimony was more measured and genuine. The crown attorney points out that the defendant’s evidence frequently changed. At times she testified that she believed her husband, Mr. A.G., to be innocent of all charges and that both girls lied, despite the DNA evidence. At other times she said she was uncertain and if he was found guilty by the court then she hoped he got what he deserved. She changed her testimony as to whether she went to the D. house to speak to A.D. or not; whether she expected to see A.D. there or not; whether she believed K.S. on the night before they were at M.S.’s apartment or not; whether Ms. D.C. comforted K.S. at M.S.’s apartment or not; whether she asked K.S. three times or more if she had lied or not asked that.

[119] The Crown suggests that the defendant’s memory is suspiciously poor as to what was said outside the D. house on the day in question. The Crown urges the court to find her evidence not credible. An example is that on the night before, when her daughter disclosed the false accusation against the defendant’s husband, she proceeded to go to sleep after an upsetting “two minute conversation”. Another example is her suggesting it would not be a problem to go visit the D. house but then brought along D.C., “in case something bad happened.” A third example was her explanation of why she went to M.S.’s apartment the day after the disclosure, to question K.S. further, as to whether she was lying or not.

[120] The Crown suggested that K.S.’s evidence not be accepted, in part, as the defendant testified that her daughter “lies all the time”. The Crown points out that K.S. was only 11 years of age at the time, her testimony changed under cross-examination, and her explanation of why she lied to police was vague and nonsensical.

[121] The Crown argued that the defendant went beyond an appeal to the truth and that she crossed the line to coercion. Their position is that despite the defendant’s testimony, she went to confront A.D.1 and A.D., and this was supported by the testimony of K.S. Eventually the defendant intended to speak to A.D. and she brought Ms. D.C. as a witness as she knew it would be intense. The Crown pointed to the evidence of Mr. A.D.1 that the defendant used combative, aggressive words of “destroying my life, I will sue you, my house is in jeopardy.” She repeatedly said A.D. was lying.

[122] The Crown’s position regarding the offence of intimidating K.S. into recanting her statement rested on the evidence of all the witnesses. They urged the court to consider whether they would consider such a statement ‘voluntary’ when three adults are around an 11 year old girl using a cycle of speaking sternly and alternating with comfort and soothing words and then back to an accusatory interrogation. They argued that the defendant used emotional blackmail on a vulnerable child; that she crossed a line from seeking the truth, to coercion, and an attempt to change the evidence.

[123] The Defence urged me to accept the testimony of the defendant, or to at least find that there is a reasonable doubt raised in her evidence when considering the evidence as a whole.

[124] He pointed to the evidence demonstrating that the defendant did not know what the truth was and was seeking to find the truth; that she had a reasonable need to protect her children; that she was concerned whether her husband was a sexual molester.

[125] Counsel recognized that her attendance at the D. house was not the best manner of making these inquiries but that her only intention was to find out the truth.

[126] He noted that there was no direct contact between the defendant and A.D. There was no attempt to obstruct justice as A.D. was not asked to recant her statement. He noted that there was no evidence that Mr. A.D.1 was frightened and he was able to shoo them away after an eight-minute conversation.

[127] Defence counsel pointed out that the four plus years since these discussions affected the reliability of what exactly was said. He pointed out that the Crown did not produce either M.S. or Ms. D.C. as witnesses.

[128] Defence argued that both K.D. and A.D.1 would not believe that their sister/daughter, A.D., would lie and that this shades their perception of what the conversations were.

[129] The defence position was that the defendant’s intention is key here. He argued that her actions are consistent with her seeking to know the truth after finding out that her daughter had lied.

[130] Regarding the charges that the defendant intimidated and obstructed justice by having K.S. recant her statement the defence urged that this too was simply a mother seeking to determine the truth. He pointed to the dangers of the evidence of K.D., recounting the conversation, since sh