ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: 13-443
Date: 2015-10-19
Between:
HER MAJESTY THE QUEEN
- and -
F.C.
Debra Moskovitz, for the Crown
Lydia Riva, for the accused
Heard: January 5-8, 12-16, May 19-21,
June 1-5, July 27, 2015
Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainants and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.
K.L. Campbell J.:
I
Overview of the Case
[1] The accused was originally charged with the alleged commission of nine sexual offences against four young complainants. On June 1, 2015, at the close of the Crown’s case, and at the invitation of the Crown, the accused was acquitted on four counts of the indictment that alleged offences against two of the complainants. What remains in issue between the parties are the five outstanding charges, alleging the commission of five sexual offences. These offences were allegedly committed in Toronto against two sibling complainants. At the time of these alleged offences, the accused and his wife were responsible for the day-care of each of the complainants, who are their great-grandchildren. The offences involve the alleged sexual touching of both sibling complainants, approximately 11 years apart. The older male complainant, MIM, did not first disclose being touched sexually by the accused, years earlier, until he learned of the sexual touching of his younger sister, MM, in May of 2012. It was at that point that the police commenced their investigation.
[2] Two of these offences were allegedly committed between April 15, 2001, and April 15, 2003, against the accused’s great-grandson, MIM. These sexual offences were allegedly committed at a time when the complainant was approximately three years old and the accused was approximately 68 years old. When he was called as a witness by the Crown, MIM was 16 years of age. Essentially, MIM testified that, on one occasion when he and three or four other young children were being cared for by his great-grandparents, and before he started to go to school, the accused had them line up in front of him while he sat on a wooden stool. According to MIM, in succession the accused had the children pull down their pants and then he touched their respective genitals. MIM testified that when the accused pulled down his underwear (i.e. pull-up diapers), he used his index finger to touch and “flick” MIM’s penis. The accused was laughing and smiling at the time. MIM then returned to the back of the line of children. MIM did not remember how many times the accused touched his penis in this manner.
[3] The other three offences were allegedly committed on or about May 15, 2012 against the accused’s great-granddaughter, MM. The sexual offences against MM were allegedly committed when the accused was approximately 82 years old, and the complainant was just four years old. When she was called as a witness by the Crown, MM was close to seven years of age, but she was unable to respond to questions and, accordingly, was not competent to give evidence. However, I ruled that certain hearsay statements that MM allegedly made to her mother were admissible pursuant to the principles articulated in R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531. See R. v. F.C., 2015 ONSC 6428. First, on the evening of May 15, 2012, MM told her mother, essentially, that she played a “secret game” with the accused in which he played with her vagina, and in which she hunted for his “eggs” or testicles. Subsequently, on June 5, 2012, MM indicated, together with a physical demonstration, how she laid down on her back, with her legs up in a “birthing” position, and the accused put his “pee pee,” or penis, inside her vagina.
[4] There is no issue between the parties that, if the accused touched the complainants as alleged, he is guilty of the alleged sexual offences. However, the accused testified and denied that any such sexual touching ever took place in relation to either of his great-grandchildren. His wife testified that she never saw any suspicious activity on the part of her husband and certainly never saw any sexual touching of the children in their care. She explained that she rarely left the apartment as she was the primary care-giver for their great-grandchildren.
II
The Presumption of Innocence and
the Burden of Proof on the Crown
[5] As constitutionally guaranteed by s. 11(d) of the Charter of Rights and Freedoms, the accused is presumed innocent, and enjoys the benefit of the presumption of innocence unless and until the Crown establishes his alleged guilt with respect to the charged offences beyond a reasonable doubt. That is a heavy burden of proof, and it never shifts. The accused was not obliged to testify or call any evidence, and he has no obligation to establish his asserted innocence.
[6] In the circumstances of this case, it is worthwhile recalling that, as juries are typically instructed, a “reasonable doubt” is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence. Accordingly, it is not enough for the Crown to establish that the accused is probably guilty or likely guilty. Proof of probable or likely guilt is simply not proof of guilt beyond a reasonable doubt. At the same time, it is nearly impossible to prove anything with absolute certainty. The Crown is clearly not required to do so. Absolute certainty is a standard of proof that is impossibly high. However, proof beyond a reasonable doubt is much closer to proof of absolute certainty than it is to proof of probable guilt. In order to be satisfied beyond a reasonable doubt as to the alleged guilt of the accused in relation to any of the outstanding counts of the indictment, I must, at the end of the case, after considering all the evidence, be sure that the accused committed that alleged offence. See R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at paras. 13-43; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242; D. Watt, Watt’s Manual of Criminal Jury Instructions (2nd ed., 2015), at pp. 261-267.
[7] Further, as the accused testified in this case, in assessing whether or not the Crown has proven his guilt beyond a reasonable doubt in relation to any of these alleged offences, I must apply the three important principles articulated by the Supreme Court of Canada in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, at pp. 757-758. In other words: (1) if I believe the testimony of the accused that he did not commit the offences for which he is charged, I must find him not guilty; (2) even if I do not believe the testimony of the accused that he did not commit these offences, if his testimony leaves me with a reasonable doubt of his guilt regarding any of these offences, I must find him not guilty of those offences; and (3) even if the testimony of the accused does not leave me with any reasonable doubt as to his guilt regarding of any of these alleged offences, I may only properly find him guilty of any offence if, based on the evidence that I do accept, I am satisfied beyond a reasonable doubt of his guilt regarding that offence. Of course, the application of these principles ensures that reaching a verdict does not devolve into a mere credibility contest between the main witnesses, and ensures that the presumption of innocence and the Crown’s burden of establishing the guilt of the accused beyond a reasonable doubt properly operate. See also R. v. Y.(C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5.
(Full decision continues exactly as in the original text…)
Kenneth L. Campbell J.
DATE: October 19, 2015
COURT FILE NO.: 13-443
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
F.C.
REASONS FOR JUDGMENT
K.L. Campbell J.
Released: October 19, 2015
[^1]: In his post-arrest statement, when the accused was told by the police that MM had said that he “touched her and asked her to find [his] eggs,” the accused laughed and said that he did not believe those things. The accused did not suggest that there was any alternative innocent explanation for the complainant's use of the word “eggs.”
[^2]: MIM testified that he occasionally heard both the accused and his wife use the term “pee pee,” in the presence of him and his sister MM, to refer to the penis or genitals.