CITATION: R. v. G.L., 2015 ONSC 385
COURT FILE NO.: CR-13-30000430-0000
DATE: 20150116
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
J. Garrity, for the Crown
- and -
G.L.
Defendant
S. Nichols, for the Defendant
HEARD: January 12-14, 2015,
at Toronto, Ontario
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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.
Michael G. Quigley J.
Reasons for Judgment
[1] G.L. is charged with one count of sexually assaulting R.M. (Code, s. 271) and one count of sexual interference with R.M., knowing that she was under the age of 14 years (Code, s. 151). G.L. elected trial by judge alone. He pleaded not guilty to both counts.
[2] The complainant, R.M., was born on […], 1998. She is presently almost 17 years old. The offences are alleged to have occurred between January 1, 2006, and March 31, 2010, when G.L. lived with R.M. and her mother, C.M. G.L. had a relationship with R.M.’s mother during that period. R.M. was between 8 and 12 during that period and in Grade 2 when the offences started. Although the offences are alleged to have occurred between 2006 and 2010, R.M. did not report them until 2012, when she was 15, in the summer following Grade 8.
[3] At this trial, three witnesses testified for the Crown: the complainant R.M., her mother C.M. and her second cousin, L.D. The defendant testified in his own defence.
Summary of background facts and allegations
[4] The accused, G.L., was the live-in boyfriend of C.M., the complainant’s mother. They both worked at Canon Canada. The relationship started through work, and went on for about four months before G.L. moved into C.M.’s house, a bungalow in Scarborough, in early 2006.
[5] He lived with her and her daughter, R.M., for approximately 5 years. During that time, R.M. progressed from being eight years of age in grade 2 at St. Thomas More School, to being 11 years of age and in grade 6. In addition to these three individuals, R.M.’s aunt, C.M.’s sister, lived in a basement apartment of that house, although she had access to the main floor where they lived as well. She worked long hours as a legal assistant and they saw little of her.
[6] In her initial statement to the police, which was accepted at the Preliminary inquiry and at this trial as a principal part of her evidence in chief, under s. 715.1 of the Criminal Code, R.M. said that “everything” started to happen at the end of grade 3 and the beginning of grade 4. In addition to attending school, she attended an after school daycare program. She also attended that daycare program during the summer, while her mother and G.L. were at work. She told the police that G.L. would often pick her up from daycare, as her mother would be working until 5:30 or later. She said that G.L. would pick her up around 4 o’clock from daycare and they would go home.
[7] Once they arrived at the residence in Scarborough, she would go to her room and lie on her bed to watch TV. She particularly liked to watch the wrestling on Mondays after school, and she practiced wrestling moves with G.L. serving as her dummy. All three of them agreed she liked to get home and that he often picked her up on Mondays so she could get home to watch the wrestling. However, she claimed that G.L. then started to come into her room, take her pants off down to her ankles, and put his mouth and tongue on her vagina and anus.
[8] R.M. said that this would happen every time he picked her up from school or the afterschool program or daycare. She testified that he picked her up from daycare “almost every day.” She claimed that the conduct took place exactly the same way every time. There was no intercourse or other invitation to sexual touching or activity. He never asked her to touch him. She estimated that each episode lasted for 15 to 20 minutes every time. She testified that sometimes, once or twice a week, once he had finished, he would leave small amounts of money, $10 or $15, on her dresser. On her evidence, over a period of several years, there would have to have been hundreds of occasions where this conduct took place.
[9] Evidently, no words were ever exchanged between the two of them during these episodes or immediately following them, although later in her police statement she confirmed that she sometimes told him “no”, and he would stop, but also get angry at her. Her mother and aunt were always at work when these episodes occurred, except for one occasion when she recalled that her mother was home watching TV in the living room, and he took her to bed, possibly by piggyback (which was not uncommon), and then closed the door and touched her the same way in the bedroom, but that episode did not last as long as it did on the other occasions.
[10] R.M. claimed that the abuse continued on a virtual daily basis from late spring of 2006 until the relationship between G.L. and C.M. ended and he moved out in March 2010. She never saw him when he left. Even though they seemed to have a close relationship, her mother had arranged for her to be out of the house when he departed. G.L. and C.M. both testified that they had discussed it and that was how they had decided to handle his departure relative to her.
[11] R.M. testified that G.L. never physically hurt her. She never hated or disliked him while any of this was happening, but instead loved to spend time with him, and looked up to him like a father figure. Indeed, all three witnesses confirmed that on Saturday mornings, when the mother would go out to do errands and to get her nails done, R.M. preferred to stay at home with G.L., but there was no suggestion of any abuse ever happening on those days – only on the weekdays in that brief window of time after school and before her mother arrived home. R.M. also said that “G.G.”, as she called him, never threatened her in any way, and that G.L. never asked her or told her not to tell anyone, particularly her mother, about what had transpired. She admitted she had been free to tell her mother about these things if she had wanted to, but that she never did until an event in 2012.
[12] R.M. did not disclose these events to her mother for 2 years until she was 15. The disclosure came about under odd circumstances. By 2012, R.M. was in Grade 8, but her character had changed, she was having problems at school, and her demeanor had become very rebellious. She claims to have had a fight with either “friends” or her boyfriend, her evidence was not consistent, and was then on the telephone and very upset about that, when her mother suddenly walked into her room, saw her crying and asked her what was wrong. She claimed that because her mother did not know and would not have approved of her having a boyfriend, she did not tell C.M. that the “friends” or the “boyfriend” was the cause of her anguish. Instead, without any apparent pause, she blurted out that G.L. had done something bad to her. She repeated those words three times, but provided no details.
[13] Her mother was upset at this disclosure but R.M. would not provide her with details. So the mother arranged for R.M. to get together with her second cousin, L.D. According to L.D.’s evidence, R.M. came to meet her at lunchtime one day in the last week of August at the restaurant where she worked in her part-time summer job while she was a student at a community college engaged in child and youth work studies. She subsequently completed those studies at a University. L.D. testified that R.M. told her that day what G.L. had done to her. She was very upset and crying loudly. L.D. called R.M.’s mother and told her that this had to be reported to the police.
[14] While I note that she now works as a full-time youth worker for the Toronto District School Board, there was no suggestion that L.D. may have influenced anything reported by R.M. L.D.’s evidence was adduced by the Crown only to show R.M.’s alleged demeanor at the time she met with L.D. Nothing is known here of anything that was actually said between them.
[15] C.M. testified that L.D. told her that if she did not take R.M. in to report the matter to the police, then L.D. would. The next day, August 24, mother and daughter went to the police station but R.M.’s statement could not be taken that day unless they waited around for several hours, because there was no Children’s Aid worker present when they arrived. So instead, they returned on Monday, August 27, 2012, and that was when the complainant’s video statement was taken.
[16] On consent, R.M.’s videotaped statement was filed at the preliminary hearing and at this trial as a part of her testimony in chief, pursuant to s. 715.1 of the Criminal Code. As her examination in chief continued at that time, she disclosed for the first time that although the accused’s pants were always on when he had his mouth and tongue on her vagina and anus, on one occasion as he was getting off her when they were finished she recalled feeling his erect penis against her leg.
[17] The accused, G.L., was the only defence witness. He is 53 years old. He immigrated to Canada from Guyana and is now a Canadian citizen. He is now involved in another relationship of four years’ duration. He has two children who are in their mid-20s.
[18] He met the complainant’s mother in 2006. They both worked at Canon Canada. They started a relationship, and four months after it started he moved into her bungalow in Scarborough with her and her daughter R.M. G.L. adamantly denies the accusations that are made against him. He says he never sexually assaulted R.M., never put his mouth on her vagina or anus, never took off her clothes, and never pressed his erect penis against the side of her leg. He admitted that he was close to R.M., and did tuck her into bed sometimes or give her piggyback rides, but he was adamant that the allegations she made never took place, at those times or at any other time.
[19] After he moved in, he started to get to know R.M. They were close. She liked to practice her wrestling holds and maneuvers using him as the “dummy”. He spent a lot of time with her. On Saturdays, when her mother would go out to do errands, she preferred instead to stay home with him. She did not like going to the mall.
[20] G.L. does not recall having ever having seen any indication from her that she was uncomfortable with him and she never said anything to him about keeping away from her. In fact she called him “G.G.”, a nickname I recall her saying she invented. His relationship with R.M.’s mother ended in 2010 and he moved out. He did not speak to her on the day he moved out. He did not warn her ahead of time that he was going to be leaving. He did not follow up with her and speak to her afterwards. However, R.M. and C.M. testified that her mother arranged for her to be away from the house the day he moved out so that she would not be present, and her mother testified that keeping her away from the house on that day was a decision that had been reached jointly with G.L.
[21] G.L. acknowledged that he did pick up R.M. once or twice a week from daycare, starting sometime in the spring of 2006, after he had been living with them for about four months. He did so to help her mother, on days when he might finish work early, because R.M. wanted to get home on Mondays to watch the wrestling on television. On average, he said that when he had a vehicle, and during those periods of time when her mother was working and unable sometimes to pick up R.M. herself, he would pick her up on average two times a week, although the evidence also showed that there were lengthy periods of time when he was unable to pick her up.
[22] Although he started to pick her up in the spring of 2006, on June 19 of that year, someone stole his vehicle. He was unable to get a new vehicle until May 2007 because his insurance policy would not cover for theft, and he could not afford a new vehicle until he purchased a secondhand Toyota from his sister. During the interim, while he and R.M.’s mother continued to work at Canon, he would get a ride to work from one of his co-workers, and he provided him with gas money.
[23] After working with Canon since 1999, however, he lost his job in June 2007. From that time until he started a new job as a shipper/receiver at Debco in March 2008, he did odd jobs that were provided to him by an employment agency. Debco was located in Vaughan, and G.L. testified that it took him an hour to drive each way. He worked long hours in that job and typically arrived home late every evening because of the travel time. By December 2008, he had had enough and got a new job at Sporlan Refrigeration. That job did not entail so much traveling, and he had regular hours of work from 8:00 am till 4:30 pm, every day. He was still employed there when his relationship with R.M.’s mother ended in March 2010, and he continued to be employed at that position until November 2014.
[24] So, while he conceded that he picked R.M. up after school or from daycare once or twice a week in those weeks where he had a vehicle or was not working late hours, on his evidence, and the documentary employment records from Debco, and taking account of the lengthy period when R.M.’s mother was at home as well, after she lost her position at Canon, the occasions when G.L. could have picked up R.M. after school or from daycare were substantially fewer then she indicated in her testimony.
[25] On his testimony, confirmed by C.M. and the employment records, he could not have picked her up at any time from June 19, 2006 until May 2007, when he acquired another vehicle, or from March 2008 until December 15, 2008, when he was working lengthy hours in Vaughan for Debco. Even while he worked at Canon, his hours were from 8:30 in the morning until 5 o’clock on Monday to Thursday, with a 4 o’clock finishing time on Fridays. Nevertheless, he did acknowledge that during his time working at Sporlan, before his relationship with her mother came to an end, he did pick up R.M. from the afterschool program, once or twice a week, always on Monday and sometimes on another day.
[26] In his cross-examination, G.L. allowed that in the summer of 2007, he could have picked R.M. up from daycare as many as three times a week. But by the end of that summer, both he and R.M.’s mother were working full-time again as they could get the work, and that carried on during the fall of 2007.
[27] G.L. acknowledged having developed a close relationship with R.M., that she was an innocent child, and that they certainly did touch each other as a result of her practicing her wrestling maneuvers on him. Plainly they had physical contact during those occasions. However he could not recall her ever having been angry with him, nor could he recall her having been at odds with her mother. He had a rapport with her, but was insistent he did not take advantage of her sexually, and that he never gave her any money whatsoever. He acknowledged that the more limited times described above did provide brief opportunities for him to sexually abuse R.M., and that the nature of the alleged conduct would not have left externally visible injuries, but he stated firmly that he did not do so.
[28] When his relationship with R.M.’s mother came to an end, G.L. acknowledged that he did not speak to R.M. before he departed about his deteriorating relationship with her mother, nor did he speak to her to prepare her for his departure. In response to a final question from me, G.L. indicated that the relationship came to an end because he and R.M.’s mother were having financial difficulties and not getting along. C.M. provided no contrary information on that point.
The Presumption of Innocence, the Burden of Proof, R. v. W. (D.), and Reasonable Doubt
[29] G.L. is presumed to be innocent under our law unless Crown counsel proves his guilt of these offences beyond a reasonable doubt. It is also important to remember that G.L. did not have to present evidence or prove anything in this case. In particular, he did not have to prove that he is innocent of the offences charged or that these events never happened. He did testify, but this does not alter that fact or the burden of proof. Unless Crown counsel has satisfied me beyond a reasonable doubt of his guilt, I am obliged to find him not guilty of any offence. If I am unsure whether the events alleged by R.M. ever took place, it would require that G.L. be acquitted on the charges.
[30] Turning to the evidence and the analytical principles that I am required to apply in determining whether G.L. is guilty or not guilty of these charges, there were essentially two versions of events presented here. On the one hand is R.M.’s story of what G.L. did to her and her mother’s evidence of how those events came to be revealed to her. On the other hand, there is G.L.’s denial that the events occurred or that he ever perpetrated any sexual acts on R.M. The only direct evidence was R.M.’s evidence that the events did occur as she described them and G.L.’s evidence that they did not.
[31] All of the evidence must be considered in determining whether the Crown has made out the charges beyond a reasonable doubt. In determining whether the Crown has met that standard, I am required to apply the methodology of analysis mandated by the Supreme Court of Canada in R. v. W. (D.)[^1] to the whole of the evidence before the Court. In W. (D.), like here, there were two irreconcilable versions of events, both given under oath. The complainant testified that a sexual assault had taken place but the defendant testified that the events never occurred. Here, the complainant claims that the same conduct took place at the end of every school day, or whenever the defendant picked her up from daycare over the summer months, for a protracted period of about three and a half years, starting at the end of the school year in 2006. This is an allegation that this conduct occurred hundreds of times. The defendant testified that the conduct alleged by the complainant never took place.
[32] The test in W. (D.) focuses on credibility. If I believe the evidence of the accused that he did not commit the offences charged, then he must be found not guilty. However, even if I do not believe his evidence, if it leaves me with a reasonable doubt about his guilt, or about an essential element of the offences charged, then again he must be found not guilty of the offence. Finally, even if G.L.’s evidence does not leave me with a reasonable doubt of his guilt, or respecting an essential element of the offences charged, I may still only convict him if the rest of the evidence that I accept proves him guilty beyond a reasonable doubt.
[33] I have reminded myself that a “reasonable doubt” is not a far-fetched or frivolous doubt, or one based on sympathy or prejudice. It is a doubt based on reason and common sense, a doubt that logically arises from the evidence or from the absence of evidence. Probable or likely guilt is inadequate. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. While it is nearly impossible for anything to be proven with absolute certainty, proof beyond a reasonable doubt is closer on the continuum to absolute certainty than it is to proof on a balance of probabilities. Proof on a balance of probabilities, as its name visually suggests, is only 50% plus one. But proof beyond a reasonable doubt goes substantially beyond probability and likelihood and is much closer to certainty.[^2] Further, I am not permitted to merely choose between two competing versions of events presented by the complainant and the accused. I am required to consider the whole of the evidence, as all three of the tests in the W. (D.) formula and the decision in R. v. Lifchus[^3] demand.
[34] Ultimately, as I have said, the test is whether I am “sure” after considering all of the evidence. If I am sure that G.L. committed these offences then I should find him guilty but if I am not sure, based on all of the evidence, then I am obliged under the law to find him not guilty.
Elements of the offences
[35] The two offences each consist of several elements. The Crown must prove each element beyond a reasonable doubt. For count one, the Crown must prove beyond a reasonable doubt that the accused knowingly and intentionally applied force to R.M. in circumstances of a sexual nature. R.M. was legally incapable of consenting at the time the offences are alleged to have occurred because she was under the age of 16, so the absence of consent is to be legally presumed. Count two requires proof beyond a reasonable doubt that the accused touched R.M. with a part of his body, for a sexual purpose, when she was less than 16 years of age. Again, consent is legally precluded.
Assessment of Credibility and Reliability
[36] Sexual offences are almost always perpetrated in private, as they were here, with only the complainant and the alleged offender present. Thus, proof to the criminal standard inevitably will fall to be decided primarily on the credibility of the complainant and the accused. However, reliability is also critical to consider as well as credibility. Contradictions in the evidence must be assessed. This will be particularly true where the Crown’s case depends solely on the generally unsupported evidence of the complainant and where the principal issue is her credibility and reliability. Corroboration is not necessary, but when there is only the evidence of the complainant and the accused, it is not surprising that in the absence of some confirmatory or supportive evidence of the allegations by the complainant, there have been numerous cases reported where it has proven difficult for the Court to conclude beyond a reasonable doubt that the Crown has proven the offence to the required criminal standard.
[37] Crown counsel referred to the decision of the Supreme Court of Canada in R. v. W. (R.),[^4] as having established the standard that ought to be applied to the assessment of R.M.’s evidence, given that she was a child between 8 and 12 years of age at the time that these alleged offences occurred in 2006 to 2010, but was an “almost” adult, a person who is 16, almost 17 years of age, when she testified at trial.
[38] In W. (R.), the accused was charged with sexual offences against three young girls. The youngest was between two and four years old when the incidents occurred, seven when they were reported to the authorities, and nine at the time of trial. The other two girls were his stepdaughters, the younger one was between nine and 10 at the time of the events, 11 when they were reported, and 12 at the time of trial, while the oldest girl was 10 at the time of the events, 14 at the time of the report, and 16 at the time of trial.
[39] As in this case, the complainants described the incidents under which the charges arose and the accused denied the allegations. Apart from the denial of the accused, the evidence of the oldest child was un-contradicted and internally consistent, but the evidence of the two younger children revealed numerous inconsistencies and was contradicted in some respects. As in that case, so too there are inconsistencies and internal contradictions in the evidentiary record before me from this complainant.
[40] In delivering the Supreme Court’s reasons, McLachlin J., later C.J.C., instructs that a “common sense” approach should be followed when considering the evidence of children, an approach that takes account of the strengths and weaknesses characterizing the evidence, much the same as we do in assessing the evidence of adults. When a trier considers and assesses the evidence of any witness of whatever age they may be, they are to be given allowances for their state of mental development, understanding, and ability to communicate. Nevertheless, in general, where an adult is testifying about events that occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. As it pertains to events that occurred in childhood, however, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.
[41] R.M.’s credibility as to events that occurred when she was a child must be assessed according to criteria applicable to her as an adult witness. However, while she may be granted some leeway of recall, particularly as to peripheral matters, we cannot inadvertently permit problematic aspects of her evidence that call its reliability into question to slide by and not be subjected to the proper level of criminal scrutiny, just because she was a child when the events happened, at least to the extent the matters are central to what allegedly transpired. Her evidence cannot be permitted to pass under a lower standard, after making appropriate allowances, just because she was a child when the events occurred, while holding adults to a higher standard.[^5]
[42] Similarly, while the Crown asks me to resolve the evidentiary assessment in part based on the forthright, seemingly thoughtful and sincere demeanour of the complainant, R.M., observations with which I generally agree, nevertheless the governing authorities caution against excessive reliance on demeanour. As Rowles J.A. of the British Columbia Court of Appeal observed insightfully in R. v. S. (W.):
The issue, however, is not the sincerity of the witness but the reliability of the witness’ testimony. Demeanour alone should not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on the record ... [^6]
[43] An accused person is entitled to be judged on the totality of the evidence, not just the demeanour of the complainant, and after taking account of internal contradictions in their testimony on matters that were raised in cross-examination. Ultimately, there are no fixed rules that can be relied upon, so the proper approach is to consider all of the evidence together and not to assess individual items of evidence in isolation.[^7] This will be particularly true where the Crown’s case depends principally on the generally unsupported evidence of a complainant, such as R.M., and where the principal issue is her credibility and reliability.
[44] The very recent decision of R. v. A.M.[^8] speaks to the manner in which a trial judge must go about assessing the credibility and reliability of the evidence of a complainant where there are allegations of sexual assault. In that case, amongst other things, the accused claimed the trial judge failed to address the numerous inconsistencies and improbabilities that existed in the complainant’s testimony. The sexual abuse there had continued over 10 years, commencing when the complainant was a child of seven and extending until she was about 17 years old. At paragraphs 8 through 20 of his reasons, and particularly at paragraphs 12-14, Watt J.A. sets out principles that are relevant to assessing the evidence of witnesses in a case like this:
[12] Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath. Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.
[13] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned.
[14] Fifth, a trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness’ evidence, nor respond to every argument advanced by counsel… That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses.[^9]
[45] Significant inconsistencies and conflicting evidence on the record must be addressed. As defence counsel noted, in circumstances where there are significant inconsistencies in the testimony of the complainant that are not merely in relation to matters that are peripheral, the trier must inevitably search for confirmatory evidence to bolster and support the testimony of the complainant. That evidence should be capable of restoring the trier’s faith in the complainant’s account of events, even if it does not directly implicate the accused or confirm the complainant’s evidence in every respect.[^10] While I have looked for confirmatory evidence in this case, where there is little evidence of what if anything occurred between the accused and R.M. other than as reflected in her testimony, inevitably her credibility and reliability is of great importance in determining whether the offences are made out against the accused.
[46] Finally, to the extent that defence counsel might have suggested that there was significance to the delayed reporting that occurred here, I note that it could never give rise on its own to an adverse inference against the credibility of the complainant. In R. v. D.D.,[^11] the Supreme Court accepted the view of experts that in the case of children alleged to have been sexually abused, the timing of disclosure signifies nothing, and no negative inference arises specifically because of delayed reporting. Not all children will immediately disclose sexual abuse, and a trial judge should recognize that victims do not all react the same way. They will behave differently. For reasons of possible embarrassment, fear, guilt, or lack of understanding and knowledge, some will complain right away, some will delay, and some will never disclose the abuse. Thus, the timing of the complaint is simply one circumstance to consider in the assessment of credibility based on the entirety of the evidence.
Findings and Disposition
[47] The issue in this case is whether I can be sure that the events alleged occurred. To determine that question, I am required to assess the credibility and the reliability of the evidence of the complainant, R.M., and the credibility and the reliability of the evidence of the defendant, G.L., as I consider the evidence as a whole.
[48] Subject to the W. (D.) analysis, if R.M.’s evidence is accepted as credible and reliable, it would appear to satisfy the elements of the offences the Crown is required to prove, since she has testified that G.L. committed acts that amount to sexual assault and sexual interference when she was under 16 years of age. On its face, if her evidence is accepted and his is rejected, her evidence would prove the elements of the offence. But as has been observed several times during submissions and in these reasons, whether the offences are proven beyond a reasonable doubt must be established having regard to the entirety of the evidence, not just R.M.’s testimony.
[49] If I find that R.M.’s evidence is credible and reliable and if it satisfies me beyond a reasonable doubt that the events described took place, then the accused should be convicted on all counts. On the other hand, even if I find that her evidence may be credible, it may not be reliable, in which case an acquittal must result. If I were to find that her evidence is neither credible nor reliable, that would obviously require that acquittals be entered. Having said that, I would also acknowledge again that to convict I must be satisfied on the whole of the evidence, not just R.M.’s evidence, thus necessarily including the evidence of C.M., and G.L.’s evidence, and the exhibits and documentary evidence, that the Crown has proven the elements of the offences beyond a reasonable doubt and that the accused is guilty as charged.
[50] Looking first at the evidence of G.L., as mandated by the decision in W. (D.), I find that there is nothing on the face of his evidence or in the manner in which he delivered it that causes me to doubt his credibility or the reliability of what he said. There are numerous points in his testimony that made sense. He was forthright and appeared to be sincere in trying to answer questions as best he could, both in chief and in cross-examination. When asked questions that might have implicated him, he was prepared to acknowledge suggestions made by the Crown rather than being contrarian or argumentative, which might have reflected an effort to distance himself from the offences and that might have caused the reliability of his evidence to be called into question. Instead, he gave those acknowledgements, but then was adamant that in spite of those answers and acknowledgements, he had not touched R.M. sexually.
[51] Several examples make the point. G.L. forthrightly acknowledged that in spite of the extensive periods of time when he did not have a vehicle available to him to pick up R.M., or when his work at Debco would have prevented that because of the long hours he was working and the time it took to drive to Vaughan and back every day, that he nevertheless had opportunities in the summer of 2007 and in the fall of 2007 when he could have been picking up R.M. from school or from daycare once or twice a week, and indeed he acknowledged it could have been three times the week from time to time. He also acknowledged that he picked up R.M. from school or day care regularly for Monday nights, so that she could watch the wrestling, and on other occasions, and during the period of time after he moved to Sporlan Refrigeration and before his relationship with R.M.’s mother came to an end.
[52] He acknowledged that he did develop a close relationship with R.M. and that she would practice her wrestling manoeuvres and holds on him, which necessarily meant there was physical interaction and touching between them. He acknowledged that he did develop a rapport with her but adamantly maintained that he did not take advantage of her, and that he never gave her any money. He was prepared to acknowledge he could have, and did not try to distance himself from that possibility by focusing on those periods of time when it would not have been possible for him to do so, but he was unshaken in his denial that he had done so.
[53] Similarly, after the suggestion was put to him by Crown counsel, G.L. thought for a moment and then accepted the proposition that was put to him that if he had been sexually abusing R.M. in the manner she indicated, there would have been no visible external injuries caused that could have been detected by her mother, but he insisted he had not done anything that R.M. alleged, and was not sexually assaulting her. When it was put to him that there was one episode of abuse that took place while C.M. was sitting in the living room watching TV, he was willing to acknowledge the mother would have been unable to see what was going on when he took R.M. to bed that night, because of the bend in the hallway. Nevertheless, while agreeing that the mother would have been unable to see that, he maintained that he did not abuse R.M. on that, or on any other occasion.
[54] G.L. acknowledged that he did not speak to R.M. before leaving her mother’s house about the deterioration of his relationship with her mother, and that he did not prepare her for his departure. Interestingly, given that R.M.’s mother’s evidence was that it had been decided between her and G.L. that R.M. would not be home when G.L. departed from the house in March 2010, when he was asked why he did not say goodbye, he said he could not think of her reasons, and in re-examination said he felt badly about not saying goodbye. But on the other hand, he denied that he had not done so because he was trying to get out of the house and leave their lives without providing an opportunity to be confronted by R.M., or without being detected in the abuse he allegedly perpetrated.
[55] So at the end of his evidence, he was unshaken on his denial of having perpetrated any sexual abuse against R.M., notwithstanding that he admitted he had had the opportunity to do so. He delivered his evidence in a fair, balanced and even manner. He did not waver in his denial. There was nothing in his demeanour that suggested that he was not credible or reliable in the evidence that he gave to the Court. There was no fidgeting or excessively nervous or aggressive reaction to any of the propositions that were put to him by Crown counsel, and there were no “Perry Mason” moments, for those of us who are old enough to recall that 1960s and 70s version of the “Law and Order” television series of today.
[56] Moreover, he testified that nothing was ever amiss in the household, that his relationship with R.M. was always good, that she enjoyed and asked to continue to spend more time with G.G. on Saturday mornings, a point she confirmed, rather than accompanying her mother to the mall and to do errands, and despite her own evidence, that he never threatened her and never told her not to tell her mother, or anyone else, and despite the numerous opportunities she had to do so, no disclosure of this alleged serial abuse, that necessarily amounted to hundreds of occasions, was ever made. I do not draw an adverse inference against R.M. from the fact that no disclosure was made during this time, but simply observe it as one factor amongst many that must be taken into account in assessing the evidence.
[57] Furthermore, R.M. also acknowledged that she was upset when G.L. left her mother’s house. By that time, she was 12, almost 13 years of age, and on her own evidence and G.L.’s testimony, had attended courses at Centennial College to teach her the importance of disclosing if she was ever subjected to sexual abuse from any person. She was no longer a tender and innocent eight year old, although I would note that children of 8 to 10 years of age today in our world bombarded by images, electronics, and Internet information, are rarely likely to be unknowledgeable about such issues, unaware of the need to disclose them when they occur, and encouraged to do so from all quarters, whether at home or at school. So again, on its face, there is no objective evidential reason to disbelieve or to reject G.L.’s evidence.
[58] Nevertheless, relative to the W. (D.) analysis, as Doherty J.A. put it in R. v. J.J.R.D.,[^12] I must also accept and note that a defendant’s evidence may be rejected, notwithstanding its seeming facial credibility and reliability, on the basis of a reasoned acceptance of competing credible evidence of the complainant. The learned appeal judge put it in the following words:
The trial judge’s analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant’s denial because stacked beside A.D.’s evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial 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 the accused testified or the substance of the accused's evidence.
On the trial judge’s reasons, the appellant knew why he was convicted. His daughter’s evidence, combined with the credibility enhancing effect of the diary, satisfied the trial judge of the appellant’s guilt beyond a reasonable doubt despite the appellant’s denial of the charges under oath.
[59] So that brings me to the evidence of the complainant, R.M., and whether or not I can accept her evidence as credible and reliable on a reasoned comprehensive basis, in the context of the evidence at trial as a whole, including the testimony of her mother and G.L. In this case, I find that there are several important problems with the reliability of her evidence as it relates to the alleged sexual offences, regardless of the sincerity of her beliefs and the appearance of credibility that appeared generally to characterize her evidence, at least looked at through the lens of her demeanour and seemingly forthright and sincere testimony.
[60] On R.M.’s own evidence, she was the one that sought to spend more time with G.L., and this continued until he left her mother’s household, at a time when she was 12, almost 13 years of age, and by which time she would have learned from the sources I noted about the need to disclose sexually inappropriate conduct. There are a number of reasons and particular points that cause me uncertainty relative to her evidence.
[61] R.M. said that the abuse occurred every day. In her initial statement to the police, on at least four if not five occasions, she told Officer Handsor that it “happened every day.” She also told her that it happened exactly the same way every day, and that no words were ever spoken between her and G.L. during or immediately after the abuse was allegedly perpetrated. Crown counsel suggested in argument that what she meant by this, was not every day, but rather every day on which he picked her up from school or from daycare. Yet initially, both in her original statement and at the preliminary inquiry, she testified that this abuse occurred every day over a period of years. This would have amounted to hundreds of episodes. Yet before me at this trial, her evidence changed, and she indicated that it could only have happened no more than two or three times a week, because she changed her evidence to indicate that G.L. did not pick her up every day, but only 2 to 3 times a week.
[62] Even if I accept Crown counsel’s suggestion, and interpret R.M.’s statement as she would have me read it, it still leaves the problematic aspect that for a very lengthy period of time during the four years and three months covered by the indictment, G.L. either had no vehicle with which he could pick up R.M. from school or day care, or both he and her mother agreed that she was picking R.M. up, or he was working far enough away from the residence in Scarborough that it was simply not possible in the timeframe suggested that he could ever have picked her up or that the abuse could have happened during those periods. Consequently, it is only from the spring of 2007 until March 2008, and after he moved to Sporlan Refrigeration, that he picked her up from school or day care at the request of her mother.
[63] That reality seriously contradicts the complainant’s evidence. Moreover, it can hardly be characterized as a contradiction relative to a peripheral detail. It is detail relative to the central matter of the nature of the alleged sexual conduct and the frequency of its occurrence. At the time in question, the complainant was not an infant. She was nine years old approaching her 10th birthday. But the fact is that she never said that the sexual episodes only took place on the days that he picked her up. And she never said that there was any lengthy period of weeks and months during which the evidence plainly shows that the episodes could not have occurred because he did not pick her up from school or daycare during those periods.
[64] In her statement to the police, when asked whether these episodes would happen after G.L. picked R.M. up from school, she answered as follows:
A. Yes after-after school I would go to daycare which was right-it was like right down the road and then he picked me up at around 4 o’clock. My Mom didn’t come home until 5:30 and my aunt wouldn’t be home either-she’d be at work too and she lived downstairs.
Q. Okay and how often would this happen?
A. Almost every day so I-I would say every day sometimes. Sometimes not like I did like tell him “no”. Sometimes I just couldn't do so I just but it was mostly every day.
[65] So even though she testified that the abuse occurred almost every day, she was still eager to stay with G.L. on Saturday mornings when her mother was out doing errands, a proposition that seems internally inconsistent, and counterintuitive, because if he was sexually abusing her, it seems more likely that she would not want to be in his presence, rather than encouraging more contact.
[66] A second difficulty with R.M.’s evidence relates to her claim that G.G. regularly gave her money, by leaving it on her dresser after some of the sexual episodes concluded, but without a word being spoken between them, and more importantly, without R.M.’s mother ever apparently knowing that she was in possession of amounts of money, which would have been significant for a child of her age. Both R.M. and her mother admitted that if there were quantities of money lying around her bedroom, her mother would have questioned her about that and where it had come from.
[67] Neither does it seem probable that R.M. could have gone to the Dollarama on the regular basis that she liked, with her friend, and have returned with a lot of loot without her mother having seen the money, or having seen the product of her spending. Her mother acknowledged that she was in R.M.’s room regularly and knew where everything was in that room. There was no evidence that any of the chests of drawers or containers in that room were locked. The reasonable inference is that as an interested mother, C.M. would have been looking into drawers and around the room on the regular occasions when she would have been inside R.M.’s bedroom. Yet her mother knew nothing about the money or about any purchases of toys or other goodies that might have been purchased at the Dollarama store.
[68] This leads me finally to consider, in broader terms, inconsistencies in the complainant’s evidence, and to acknowledge her age since the disclosure occurred in 2014 up to the present time, and to recognize that she was no longer a child during this most recent two to three year period of time. R.M. was 14 years old at the time of the preliminary inquiry and she was 16 years old when she testified at this trial. Consequently, being aware of and having reviewed her own evidence, she has had opportunity to clarify matters, and yet when she testified before me, she was still giving evidence that was inconsistent relative to details of the alleged abuse previously provided, either in her initial statement or at the preliminary inquiry. I will provide two examples:
(i) There is a significant inconsistency and change in R.M.’s testimony relative to who took her clothes off, and the extent to which they were removed. She testified that it was always she who removed her clothing, in anticipation of his arrival in her room while she was watching TV after school, apart from the first few instances where he took her clothes off. Yet in her statement to the police, she said that it was G.L. who was the one who always pulled her clothes off. Further, she said that he pulled her pants down to her ankles, which to my mind would have created a physical difficulty in her then maneuvering into the position from which she indicated that he put his tongue in her “butt-hole”, as she referred to it, yet as defence counsel noted, she testified that she took her clothes off and folded them and put them down beside the bed.
(ii) I also have considerable difficulty with the alleged circumstances relating to the disclosure. In her police statement, she did indicate that she had gotten into a fight with “friends”, but there was no mention about any telephone call with a boyfriend. Now, however, the crystallizing impetus for the disclosure relative to G.L. is the fight on the telephone with her boyfriend. She acknowledged in her evidence that she was not upset about G.L., contrary to the evidence of L.D. that her demeanor was one of crying uncontrollably when she told her about the alleged episodes less than a week later, but was instead upset about the fight with the boyfriend. Her mother testified that they had just moved into a new house, that R.M. was not happy with having moved, and that she was talking to someone on the phone and then started to cry, and then the crying became more prolonged. Then out of nowhere, when the cause of her anguish is allegedly the difficulty being experienced with the boyfriend, in a mere second or two and even though she acknowledges she is not angry with G.L., she blurts out that the cause of her anguish is the abuse allegedly perpetrated against her by G.L., and not the emotional anguish she acknowledged before us at trial that her phone call and fight with the boyfriend had caused. It simply makes no sense that when her mother burst into her room as she was crying in a loud and prolonged manner about the boyfriend, a fact that she could not disclose to her mother, that without a moment’s pause she tells her mother, “I can't tell you what's wrong – G.G. did something to me.”
[69] Against the background of not a whiff having ever been detectable in her mother’s house while G.L. lived there that he was serially abusing her as she alleges, and taking account of the fact that she cared for him, was not upset with him, and consistently wanted to spend more time with him, it does not make sense to me that she could so quickly and coolly change channels when her mother interrupted her that day, and tell her the reason she was emotionally distraught was because of G.L.’s conduct.
[70] Finally, let me address the issue of motive. I agree that there is no evidence here of any motive that R.M. would have had for alleging that G.L. sexually abused her in the way she described. But the case law is clear that the mere fact that there may be no evidence of a motive to fabricate does not mean that one could not possibly have existed. Defence counsel did not suggest any particular motive to fabricate that might have been present in R.M.’s mind, but she did remind me of paragraph 24 of the Court of Appeal’s decision in R. v. L.L.,[^13] where the court cautioned as follows:
When dealing with the issue of a complainant’s motive to fabricate, it is important to recognize that the absence of evidence of motive to fabricate is not the same as absence of motive to fabricate. As Rowles J.A. stated in R. v. B (R.W.)… “It does not logically follow that because there is no apparent reason for a witness to lie, the witness must be telling the truth.” Put another way, the fact that a complainant has no apparent motive to fabricate this not mean that the complainant has no motive to fabricate.
[71] Defence counsel also referred to the decision of the British Columbia Court of Appeal in R. v. Horton[^14] and the admonition, at paragraphs 20 and 20a, that it is not a question of asking “why would the complainant lie?” or “which witness do I prefer?”, and that the mere fact that a witness was a child does not mean that inconsistencies or inaccuracies lose their significance. Of even greater importance in that case, in my view, is the reference to the decisions in R. v. S.(W.)[^15] and Finlayson J.A.’s reference there to Wood J.A. in R. v. K.V.[^16] at para. 35. In S.(W.), Finlayson J.A. observed that the trial judge had taken an incorrect overall approach to the case. That was because instead of questioning the veracity and accuracy of the witnesses who, because of the nature of the charge, were called to support a negative, the trial judge should have been more critical of the complainant who put forward an affirmative view that the offences took place.
[72] Referring to the Supreme Court’s well-known decision in R. v. Norman,[^17] at pages 172 to 173, the Ontario Court of Appeal concluded that the trial judge had erred because he had essentially shifted the onus of proof to the accused, despite the fact that the burden of proof to prove the elements of the crime beyond a reasonable doubt remained with the Crown at all times. Similarly, in K.V., Wood J.A. cautioned that it is important, having discarded gender-related stereotypical thinking as totally inappropriate, that we do not replace that by “an equally pernicious set of assumptions about the believability of complainants which would have the effect of shifting the burden of proof to those accused of such crimes.”
[73] The problem with the complainant’s evidence, looked at in the context of the evidence as a whole, is that it demonstrates the difficulties and deficiencies in the Crown’s case, a problem that Crown counsel, to her credit, also recognized before me in argument, apart from whether G.L.’s evidence ought to be believed or not under the tests contained in our law.
[74] So, although there is no compelling inconsistency or difficulty on the face of G.L.’s evidence itself to cause it to be unbelievable, or to cause me to find him to be not credible, or his evidence to be unreliable, neither is there evidence of the complainant, R.M., that I can accept as credible and reliable on a reasoned comprehensive basis in the context of the evidence at trial as a whole, as required under R. v. J.J.R.D., when I continue to harbour uncertainty about whether the offences took place based on the evidence presented by the Crown. That is the dilemma that I find in this case.
[75] At the end of the day, while I accept much of the evidence of the complainant, I find, as indicated, that it has many inherent failures in terms of its adequacy and its consistency. As I indicated earlier in these reasons, while this complainant may be granted some leeway of recall, particularly as to peripheral matters, we cannot inadvertently permit problematic aspects of her evidence that call its reliability into question to slide by and not be subjected to the proper level of criminal scrutiny just because she was a child when the events happened. We cannot permit her evidence to pass under a lower standard, after making appropriate allowances, just because she was a child when the events occurred, while holding adults to higher standards.
[76] Notwithstanding the very thorough submissions and careful argument made by the Crown that were as forceful as circumstances permitted, the Crown can do no more than work with the case she has. I have been unable reach a level of certainty in my analysis of the facts and evidence in this case that permits me to be “sure” that the evidence supports findings of guilt beyond a reasonable doubt. Instead, I find that there is enough inconsistency and uncertainty in the evidence to cause me to be unsure and to regard it as unreliable as a foundation to enter convictions against G.L.
[77] I must indicate that I accept that it is possible that one or more of the events described by R.M. may have occurred. However, it is equally possible that the events she described may not have occurred, and I am not satisfied beyond a reasonable doubt that they did occur. As in the case that Justice Stortini had in front of him in 1989 in R. v. P. (L.J.)[^18], here there was a significant problem reconciling the memory of the complainant with her earlier testimony, or even reconciling it with externally corroborated evidence, and to my mind his comments in that case are equally appropriate in this case:
I have already indicated the concern that courts have for vulnerable victims of sexual predators, and the court, of course, as an instrument of society, should be vigilant to punish the guilty. On the other hand, this is a Court of criminal justice, and it is more important that we proceed on the basis of long-established procedure. The accused comes to this courtroom presumed innocent and remains innocent until his guilt has been established beyond a reasonable doubt. The evidence must satisfy the court beyond a reasonable doubt.
[78] At the end of this case, for the foregoing reasons, I am not sure, and thus am not satisfied beyond a reasonable doubt, of the guilt of the defendant G.L. on these charges. As such, I am bound to enter acquittals on these charges. I would again remind the complainant and her family, however, that this finding is a simple one. It is a finding that the Crown has failed on the evidence adduced to discharge the very high evidentiary burden that is imposed upon it. It is not a finding that these events did not happen. It is a finding that I cannot be sure that they happened and so they are not proven beyond a reasonable doubt. I understand this may be a difficult result for R.M., C.M. and her family to accept, but I hope she and they will make every effort to move on in their lives.
[79] Finally, I am sincerely obliged to both counsel for the very thorough and professional manner in which they prepared and presented their cases. The subject matter is difficult. These are never easy cases. Your work assisted me greatly in completing the very difficult tasks that fell to me. I am obliged.
Michael G. Quigley J.
Released: January 16, 2015
CITATION: R. v. G.L., 2015 ONSC 385
COURT FILE NO.: CR-13-30000430-0000
DATE: 20150116
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
G.L.
Defendant
REASONS FOR JUDGMENT
Michael G. Quigley J.
Released: January 16, 2015
[^1]: 1991 93 (SCC), [1991] 1 S.C.R. 742.
[^2]: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144.
[^3]: 1997 319 (SCC), [1997] 3 S.C.R. 320.
[^4]: 1992 56 (SCC), [1992] 2 S.C.R. 122.
[^5]: See, by corollary, R. v. W.S. (1994), 1994 7208 (ON CA), 18 O.R. (3d) 509 (C.A.), [1994] O.J. No. 811.
[^6]: (1994), 1994 7208 (ON CA), 90 C.C.C. (3d) 242, referred to in R. v. Gostick, 1999 3125 (ON CA), [1999] O.J. No. 2357 (C.A.), 137 C.C.C. (3d) 53, per Finlayson J.A.
[^7]: See R. v. Morin, 1988 8 (SCC), [1988] S.C.J. No. 80, 44 C.C.C. (3d) 193, and R. v. R.W.B., [1993] B.C.J. No. 758 (C.A.), 40 W.A.C. 1, both referenced in Gostick, above.
[^8]: 2014 ONCA 769, released November 4, 2014.
[^9]: All case references and citations omitted.
[^10]: See R. v. N.S., [2001] O.J. No. 3944 (S.C.), 51 W.C.B. (2d) 305. Justice Hill also reviews and summarizes the evidentiary rules applicable to the assessment of the testimony of child witnesses at paras. 63-73.
[^11]: 2000 SCC 43, [2000] 2 S.C.R. 275.
[^12]: (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252, [2006] O.J. 4749, at paras. 53 and 54.
[^13]: 2009 ONCA 413, 96 O.R. (3d) 412. Citations and page references omitted.
[^14]: 1999 BCCA 150, [1999] B.C.J. No. 545.
[^15]: (1994), 1994 7208 (ON CA), 18 O.R. (3d) 509 (C.A.), [1994] O.J. No. 811.
[^16]: (1991), 1991 5761 (BC CA), 4 C.R. (4th) 338 (B.C.C.A.), 68 C.C.C. (3d) 18.
[^17]: (1993), 1993 3387 (ON CA), 16 O.R. (3d) 295 (C.A.), 87 C.C.C. (3d) 153.
[^18]: [1989] O.J. No. 906 (Dist. Ct.).