ONTARIO SUPERIOR COURT OF JUSTICE

Court File No.: CR-14-40000561-0000
Date: 2015-11-12

BETWEEN:

HER MAJESTY THE QUEEN

– and –

THIEN LY

Accused

Counsel:
Sarah Loosemore, for the Crown
Susan Adams, for the Accused

Heard: November 9, 10 & 12, 2015

BACKHOUSE J. (Orally)

PUBLICATION RESTRICTIONS NOTICE

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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcasted in any way pursuant to section 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) of the Criminal Code of Canada.

REASONS FOR JUDGMENT

Overview

[1] The accused is charged with sexual assault and sexually assaulting a person under the age of 14 years between the years 1993 and 1995.

[2] The complainant alleged that the accused sexually assaulted her by touching her breasts and vagina on 4 or 5 occasions at night in her bed when she was approximately 11 years of age. The accused is her uncle who immigrated from Vietnam with his parents, 3 brothers and 3 sisters, in June, 1993, when he was 17 years of age. When they arrived in Canada, they lived with the complainant’s family at 1451 Dufferin Street, Toronto, until May, 1994. The accused’s two older brothers are at least 10 years older than him. His younger brother was 15 years of age when they arrived in Canada. With the complainant’s and the accused’s family, there were 14 family members residing on the main floor and basement of the semi-detached home during the relevant time.

[3] The complainant testified that she kept her eyes closed during the assaults and did not see the accused. She testified that the accused is soft-spoken, that she recognized his voice, and that her other uncles’ voices were louder and they had thick accents. The only thing she could remember the accused saying was, “I know you’re not sleeping”, during the first assault. She could not remember if he said anything during the subsequent assaults. She agreed that it would have been necessary to whisper so as not to be overheard and that this would make a voice sound softer. She could not recall how well the accused’s younger brother spoke English at the time of the assaults. She could only remember that the accused’s English was fluent. She testified that the abuse ended when the accused told the complainant, “We cannot do this anymore.” There was no door into the room in which the complainant slept. There was an archway which was considerably larger than an average door. A piece of wood was moved back and forth for privacy when the complainant was changing. There was a bunk bed close to the complainant’s bed which left very little space in the room. There was varying evidence as to who slept in the bunk beds. The complainant had no recollection of whether there was someone sleeping in the bunk beds when the assaults occurred.

[4] When the complainant attended at the police station to give her statement, she first spoke to Officers Mokorish and Metzger before giving her video statement under oath. Officer Metzger made notes of the general story the complainant gave them. She testified at trial that she recorded in her notes that the complainant stated that when she was approximately 11 years of age, on 4 or 5 occasions, her uncle climbed into bed with her, touched her breasts and vagina, and made her touch his penis. He said, “I know you are not sleeping.” The complainant did not make the allegations about the accused climbing into her bed and making her touch his penis when she gave her video statement to the police an hour and a half later, nor did she make these allegations at the preliminary inquiry or at trial. She had no reasonable explanation for this discrepancy.

[5] At trial the complainant first testified that all the assaults occurred at night. In her statement to the police she said that most of the assaults were at night. In her statement to the police, the complainant said that she remembered that when the assaults occurred, the accused wore home clothes not pyjamas. At trial she agreed that she did not see the accused and did not know what he was wearing. At trial, she testified that each time the accused assaulted her, he touched her breasts and vagina. At the preliminary inquiry, she testified that she did not remember how many times the accused touched her breasts, but once for sure.

[6] The complainant went to the police after a family meeting was held where she confronted the accused and he refused to admit that he had done anything.

[7] There was conflicting evidence of where everyone slept. This may have changed during the time that the accused was residing with the complainant’s family after basement renovations were completed and the complainant’s parents began to sleep in the basement. What is clear was that there were a large number of family members living in close quarters.

[8] The accused denied under oath that he had abused the complainant. He further denied that the conversation ever happened where he allegedly said to the complainant that they could not do this anymore. He testified that he spoke very little English when he arrived. His testimony at trial was given in English with a slight accent. His evidence was not shaken on cross-examination. He has no prior criminal record.

Position of the Crown

[9] Crown counsel submits that the main issues are the W.D. analysis and the assessment of the credibility and reliability of the witnesses. Crown counsel concedes that the complainant was mistaken about being 11 years of age when the abuse occurred, because the abuse, if it occurred, must have happened when the accused was living at 1451 Dufferin Street, and he moved out before the complainant turned 11. It is submitted that given how long ago the abuse occurred, this should not be a deciding factor. The Crown further concedes that the identification evidence at the time the assaults occurred is weak, but relies on the conversation between the accused and the complainant where the accused allegedly said to the complainant that they could not do this anymore. It is submitted that this conversation makes no sense if he was not the abuser. The Crown further submits that not too much should be made of the contradiction in the complainant’s evidence as to what she told the police as recorded in Officer Metzger’s notebook, and what she said in her video statement and evidence at the preliminary inquiry and trial, because what she told Officer Metzger was not sworn evidence and the notes were not a verbatim transcript of what she said. The Crown submits that on the central facts of the abuse, the complainant’s story has been consistent and should be believed.

Position of the Defence

[10] Defence counsel submitted that the accused’s denial of the assaults was credible, that there were significant issues with the complainant’s reliability and credibility and that the charges should be dismissed.

Analysis

General Legal Principles

R. v. W.D.

[11] The framework set out in R. v. W.D.(1991), 63 C.C.C.(3d) (S.C.C.) must be applied to the accused’s evidence. Even if I do not believe the accused’s evidence, if it leaves me with a reasonable doubt about his guilt on either of the offences, I must find him not guilty of that offence. There is a distinction between the credibility of a complainant and a finding that the offence has been proven beyond a reasonable doubt. It is entirely possible to have a reasonable doubt at the end of the case even if I find that the complainant was credible.

[12] Assessment of a complainant’s credibility and reliability must include a critical assessment of the complainant’s evidence in the context of the evidence as a whole. This involves an assessment of whether the complainant’s evidence is at odds with other evidence in the case, and whether the complainant’s allegations are implausible or improbable having regard to the surrounding circumstances. The real test of the truth of the story of a witness must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. A trier of fact must be aware that an apparently honest, confident or convincing witness may not necessarily be an accurate witness.

[13] In cases involving allegations of historical sexual assault where adult witnesses are testifying about recollections and impressions of childhood experiences, particular caution and scrutiny are called for in approaching the reliability of evidence. Memories become increasingly frail over time. Evidence that might have existed had the matter been dealt with earlier may have disappeared. Evidence may become contaminated. Life experiences can colour and distort the memory of what occurred. (R. v. McGrath [2000] O.J. No. 5735(S.C.); R. v. Stewart (1994), 1994 7208 (ON CA), 18 O.R. (3d) 509, 90 C.C.C. (3d) 242; R. v. Norman (1993), 1993 3387 (ON CA), 16 O.R. (3d) 295)

[14] The accused’s denial was credible. His evidence was not undermined on cross-examination.

[15] I found the complainant to be an honest witness doing her best to tell the truth. However, there were serious problems and inconsistencies in her evidence. Her identification evidence is weak. It is based on voice recognition. The only distinctive element in the perpetrator’s voice was that it was soft-spoken. However, where there were other people in the home and where family members were likely sleeping in the same room as the complainant, the perpetrator would have spoken softly to prevent being overheard. As to the complainant’s evidence that she recognized the accused by the fact that he did not have an accent, she could not recall if the accused’s youngest brother had an accent. I do not agree with the Crown that the conversation between the complainant and the accused, assuming that it took place, identifies or helps identify the accused as the perpetrator. There was nothing in the conversation which refers to the sexual abuse.

[16] I do not agree with the Crown’s submission that the contradiction in the complainant’s evidence between what she told Officers Mokorish and Metzger and what she said in her sworn testimony is less significant because what she said to Officer Metzger was unsworn and not verbatim. Officer Metzger testified that she made her notes shortly after speaking with the complainant. The details she recorded are consistent with the complainant’s story except for the accused climbing in bed with her and making her touch his penis. I find it unlikely that Officer Metzger got these details wrong. This raises serious concerns about the complainant’s accuracy as a witness.

[17] The weak identification evidence and the inconsistencies in the complainant’s evidence from what she told the police and what she testified to at the preliminary inquiry raise a reasonable doubt. Although the complainant’s mother obviously believes her daughter is telling the truth, her evidence did not advance the case against the accused. Finally, the accused’s testimony on his own behalf raised a reasonable doubt in my mind as to his guilt.

Final Conclusion

[18] The charges have not been proven beyond a reasonable doubt. I find the accused not guilty of both counts.

Backhouse J.

Released: November 12, 2015

COURT FILE NO.: CR-14-40000561-0000
DATE: 20151112

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

THIEN LY

Accused

REASONS FOR JUDGMENT

Backhouse J.

Released: November 12, 2015