CITATION: R. v. Sumagpang, 2015 ONSC 7487

COURT FILE NO.: CR-14-4-0000731-0000

DATE: 20151201

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Kathy Nedelkopoulos for the Crown

• and -

ROMEL SUMAGPANG

David Goodman for Mr. Sumagpang

HEARD: September 28, 29, 30, October 1, 2015.

REASONS FOR JUDGMENT

CORRICK J. (orally)

Introduction

[1] Mr. Sumagpang is charged with sexual assault and sexual interference. It is alleged that between March 1, 2012 and December 31, 2102, he sexually assaulted and interfered with J. T., who was 12 years old at the time. He was tried by me without a jury.

[2] J. and his mother, Ms. S., testified for the Crown. Mr. Sumagpang called no evidence.

Background

[3] J. was born in the Philippines on […], 2000. He came to Canada in August 2009 to live with his mother, who had come to Canada in 2004. Ms. S. met Mr. Sumagpang in 2007 or 2008 when she met her ex-boyfriend, who was Mr. Sumagpang's brother. Mr. Sumagpang spent time with J. and his mother and her boyfriend. Between May and December 2012, Mr. Sumagpang rented a room in the two-bedroom apartment where J. and his mother lived.

Evidence of J.

The Assaults

[4] J. testified about ten occasions on which Mr. Sumagpang touched him inappropriately.

[5] J. testified that the first time this happened was when he and his mother, her boyfriend and Mr. Sumagpang went to a basketball tournament at Brock University. Mr. Sumagpang drove everyone to the tournament in a seven-seater van. J. testified that he and Mr. Sumagpang were sitting in the van listening to music, while his mother and her boyfriend went to buy something. Mr. Sumagpang was sitting in the driver’s seat. J. was in the front passenger seat. Mr. Sumagpang put his hand on J.'s left thigh and started rubbing it. This made J. feel weird. He got out of the van and went and sat in the very back of the van.

[6] J. described two assaults that occurred when Mr. Sumagpang asked him to pull out his gray hairs. One assault happened in the living room of J.'s apartment. J. was sitting on the couch with a pillow in his lap. Mr. Sumagpang was lying on the pillow. J.'s mother and boyfriend were sitting on the other couch watching television. Mr. Sumagpang put his hand under the pillow, rubbed J.'s thigh and touched his penis over his clothing. J. said he had to use the washroom, and Mr. Sumagpang stood up.

[7] The other time occurred at Mr. Sumagpang's sister's apartment. Mr. Sumagpang's sister was in her bedroom. Mr. Sumagpang was lying on a pillow that was in J.'s lap. Mr. Sumagpang put his hand under the pillow and under J.'s shorts, boxers and underwear, and touched J.'s penis. J. stood up and left the living room.

[8] The next event J. testified about occurred when J. was in the kitchen washing the dishes. Mr. Sumagpang walked behind J. and rubbed his penis against J.'s buttocks. J. leaned into the sink and Mr. Sumagpang walked by.

[9] Two assaults occurred in Mr. Sumagpang's bedroom in J.'s apartment. One assault occurred when J. was sitting in the computer chair watching a movie on Mr. Sumagpang's laptop. Mr. Sumagpang was on the bed. Mr. Sumagpang reached over and rubbed J.'s thigh and penis under his basketball shorts. J. pushed his hand away and left the room.

[10] The second one happened when J. was lying on his stomach on Mr. Sumagpang's bed watching a movie on Mr. Sumagpang's laptop. Mr. Sumagpang came into the room, closed the door and pulled J.'s shorts down in the back. J. felt Mr. Sumagpang's bare penis on his bare buttocks. J. testified that he was wearing shorts, boxers and underwear at the time. He heard his underwear rip when Mr. Sumagpang pulled them down. J. was able to get up. When he did so, he hit his head on the ladder to the upper bunk bed. He went to the washroom and saw that the waist of his underwear was ripped. He testified that he threw them in the garbage in the washroom and then left to play basketball.

[11] Another assault occurred at Mr. Sumagpang's house when J. was helping Mr. Sumagpang move his belongings into J.'s apartment. J. was in Mr. Sumagpang's bedroom when Mr. Sumagpang entered, closed the door and pushed J. against it. Mr. Sumagpang knelt down and tried to pull down J.'s shorts. J. was able to hold them up so that only the left side of his shorts came down. J. opened the door and went outside to the van.

[12] J. testified that there were two occasions on which Mr. Sumagpang put his mouth on his penis. One morning before J. left for school, Mr. Sumagpang pulled him into his bedroom by the wrist. He shut his bedroom door and pushed J. against it. Mr. Sumagpang knelt down, pulled down J.'s shorts, boxers and underwear and put his mouth on J.'s penis for one or two seconds. J. pushed him away, got ready for school, and left for the school bus. J. hurt his stomach during this incident when he hit it on the doorknob squirming around trying to get away.

[13] The second time this happened was in the kitchen. J. had just finished eating and had stood up from the table to wash his dishes when Mr. Sumagpang came into the kitchen and pushed J. down onto the table. Mr. Sumagpang sat on the chair in front of the table, pulled down J.'s pants and put his mouth of J.'s penis. This lasted for one or two seconds. J. pushed him away.

[14] J. did not know the date when any of these incidents happened or the order in which they happened.

[15] J. did not tell anyone about these incidents. He testified that he was too embarrassed to tell anyone. He was afraid that people would make fun of him.

Other Evidence

[16] J. testified that he was happy when Mr. Sumagpang moved out of J.'s apartment, because he did not have to see or talk to him anymore. Despite this, he admitted that he sent Mr. Sumagpang a text message on January 8, 2013 asking him for his telephone number. He also sent Mr. Sumagpang a text message on February 5, 2013 asking to meet him at Starbucks.

[17] J. testified that Mr. Sumagpang sometimes bought food for him and his friends. Once he bought them pizza and a couple of times, Mr. Sumagpang gave J. $10.00 or $20.00 to buy something at Starbucks. In cross-examination, J. said that he asked Mr. Sumagpang for money to go out with his friends. He did not ask his mother for money. It was easier to ask Mr. Sumagpang.

[18] J. also testified that his mother had strict rules about using her computer. He was not permitted to use her computer during the school week. When his mother was not home, she hid her laptop computer so that J. could not use it. Mr. Sumagpang allowed him to use his computer to watch movies and use Twitter. J. said that his mother did not like Mr. Sumagpang allowing him to use the computer.

[19] Mr. Sumagpang gave J. a telephone. J. could not remember when. J. lied to his mother and told her that a friend from school lent him the telephone. He testified that he lied to his mother because he did not know what she would do and he is afraid of her when she gets mad.

[20] J. testified that his mother confiscated the telephone. She went to his school with it, and afterwards they went to the police station. It is not disputed that J. and his mother went to the police station with the phone on February 25, 2013. J. testified that he does not remember answering any questions from police officers on that date.

[21] It is not disputed that J. spoke to the police on four occasions. The first time, on February 25, 2013, the interview was not video-recorded. His subsequent interviews with the police on March 5, 2013, April 18, 2013 and May 1, 2014 were video-recorded. J. agreed that there were differences in the statements he gave to the police.

[22] On February 25, 2013, J. told the police that Mr. Sumagpang did not make him uncomfortable and that he was "a good guy." He testified that he was too embarrassed to disclose the allegations at that time. He returned to the police on March 5 and April 18, 2013 and disclosed further allegations. At the end of his statement on March 5, J. was asked if there was anything he wished to add. He said there was not. At the end of his statement on April 18, 2013, he was asked if there was anything else that the police needed to know that he may have been too embarrassed to talk about. J. replied that he did not remember.

[23] Finally, when J. attended to give evidence at the preliminary hearing into this matter in 2014, he spoke to someone in the Victim Witness office and said that he wanted to give another statement. On May 1, 2014, he gave a further video-taped statement.

[24] J. testified that he has never told his mother any of the details about what Mr. Sumagpang did to him. He also testified that his mother did not tell him what to say to the police. Although he was aware that his mother did not like Mr. Sumagpang, that had no influence on what he told the police, according to J.

Ms. S.'s Evidence

[25] Ms. S. testified that Mr. Sumagpang lived with her and J. between May and December 2012. He paid rent. At first, she and Mr. Sumagpang got along, but that changed. When Mr. Sumagpang left the apartment in December 2012, she and Mr. Sumagpang were not on good terms.

[26] Ms. S. was not happy that Mr. Sumagpang allowed J. to use his computer. She was also unhappy that Mr. Sumagpang had given money to J., had taken him to Starbucks and out for pizza, and had bought him a baseball cap. Ms. S. did not approve of these things because she did not want J. to become accustomed to a lifestyle that she could not afford. She asked Mr. Sumagpang to stop giving J. things and money, but, according to Ms. S., Mr. Sumagpang continued.

[27] Ms. S. took J. to the police station on February 25, 2013. Her evidence about why she did that was convoluted, and I am not satisfied that she was being entirely forthright with the court about her objective. In February 2013, after Mr. Sumagpang had moved out of Ms. S.'s apartment, Ms. S. saw J. with a telephone that she had not given him. J. told her that Darrell, a friend from school, had lent it to him. She confiscated it and saw a missed call from Mr. Sumagpang's telephone number. She testified that she called J.'s teacher to find out if the phone belonged to Darrell. According to Ms. S., the teacher called her back and told her that Darrell did not want the phone. Ms. S. then arranged a meeting with J. and the school principal hoping that J. would be truthful about the owner of the telephone in the presence of the principal. After the meeting she took J. and the telephone to the police station. She testified that her purpose in going to the police station was to drop off the telephone for Mr. Sumagpang. She could not explain why she did not simply return the phone to Mr. Sumagpang, since she was still in touch with his family.

[28] In cross-examination, Ms. S. testified that the cell phone was password protected and that she did not have the password. She was unable to explain how she was able to see the call log of the telephone without the password. After a number of questions to which she would not respond directly, she finally agreed that she suspected that the telephone belonged to Mr. Sumagpang. While in chief she testified that her purpose in going to the police station on February 25, 2013 was to return the telephone, she admitted that while there she told the police that she was afraid that a homosexual had assaulted her son. She testified that her fear was based on the fact that Mr. Sumagpang's step-family had told her that Mr. Sumagpang had touched his step-brother, and not on anything that J. had told her. In addition, Ms. S. testified that her ex-boyfriend had also told her that Mr. Sumagpang had touched him inappropriately. Ms. S. testified that she did not pass this information on to J.

[29] The police asked J. some questions when he was at the police station on February 25, 2013. As I already indicated, J. told the police that Mr. Sumagpang was a "good guy," that he had watched movies and television with him and that there was nothing about Mr. Sumagpang that worried J. or made him uncomfortable.

[30] When they returned home from the police station, Ms. S. asked J. if Mr. Sumagpang had done something to him. She testified that she thought Mr. Sumagpang had touched J. She told J. that he could tell her. J. told her that his legs had been touched. She asked if anything worse had happened. He said yes, but he had his pants on. She asked him again if there was anything else, but, according to her, J. did not want to say. She called the police, and a meeting was scheduled for March 5, 2013, at which time she and J. gave video-taped statements.

[31] A few days after March 5, 2013, Ms. S. spoke to J. again. She agreed in cross-examination that she spoke to J. about some of the things he had forgotten. She asked J. if Mr. Sumagpang had done anything else to him. J. did not answer her. She told J. to tell her everything and that way, "maybe, the police could find a solution." J. testified that he told his mother that he had more things to say. J. provided a second video-taped statement to the police on April 18, 2013.

[32] When J. and Ms. S. attended for the preliminary hearing, Ms. S. told J. not to be afraid, and to just tell the truth. She also told him to tell everything so that "this would be over with." J. agreed to speak to someone in the Victim Witness office, following which he provided a further statement to police on May 1, 2014.

[33] Ms. S. testified that J. did not tell her what had happened between him and Mr. Sumagpang. She also testified that she has not discussed J.'s evidence with him and that she has not read J.'s preliminary hearing transcript.

[34] Ms. S. also gave evidence related to some of the incidents J. described in which Mr. Sumagpang assaulted him. She testified that she recalled going to Niagara Falls, where J. was playing in a basketball tournament. Mr. Sumagpang drove J., her, and her ex-boyfriend in his car. She and her ex-boyfriend got out of the car to pick up some food, leaving J. and Mr. Sumagpang in the car. She did not notice anything out of the ordinary when she returned to the car, although J. had testified that he had left the front passenger seat to sit in the very back of the seven-seater van.

[35] Ms. S. testified that she saw Mr. Sumagpang stand behind her son while J. was washing the dishes. According to Ms. S., J.'s back was in contact with Mr. Sumagpang's front. She said that she saw this incident in a mirror from her position lying on a sofa in the living room. She testified that she said nothing, but motioned to her son to move away.

[36] Finally, Ms. S. recalled an incident when she saw Mr. Sumagpang lying on J.'s lap in J.'s bedroom. J. was plucking white hairs out of Mr. Sumagpang's head. She never saw J. plucking grey hairs out of Mr. Sumagpang's head in the living room of their apartment.

Positions of the Parties

[37] Mr. Goodman argued that J. is not a credible or reliable witness, and that the court cannot rely on his evidence to find that the Crown has proved the charges beyond a reasonable doubt. Mr. Goodman pointed to a number of internal inconsistencies in J.' evidence and the contradictions between the evidence of Ms. S. and J. in support of his submission.

[38] He also submitted that Ms. S.'s animus towards Mr. Sumagpang caused her to put pressure on J. to fabricate these allegations by continually asking him to tell her what Mr. Sumagpang had done to him after he had said that nothing had happened.

[39] Ms. Nedelkopoulos submitted that the inconsistencies in J.'s evidence are the product of his age, education and lack of sophistication, and are not significant when his evidence as a whole is assessed. The core details of J.'s allegations are intact, according to Ms. Nedelkopoulos, and they prove these offences beyond a reasonable doubt.

Analysis

General Principles

[40] My analysis of the evidence in this trial is governed by some fundamental principles of criminal law that apply to all criminal trials.

[41] First, the Crown must prove beyond a reasonable doubt that Mr. Sumagpang is guilty of the offences charged. This standard is a high one. It is not enough for me to believe that Mr. Sumagpang is probably guilty. Proof of probable guilt is not proof of guilt beyond a reasonable doubt.

[42] Second, is the presumption of innocence. This presumption stays with Mr. Sumagpang throughout the case. It is only defeated if and when Crown counsel satisfies the court beyond a reasonable doubt that he is guilty of the crimes charged. The presumption of innocence also means that he does not have to testify, present evidence, or prove anything in this case. Mr. Sumagpang does not have to prove that he is innocent of these crimes.

[43] I am required to make my decision based on the whole of the evidence. I can accept some, none or all of the evidence of any witness.

Evidence of Children

[44] I must also consider that special considerations apply when I consider the evidence of J., given that he is 15 years old and has testified about things that happened when he was 12 years old. Courts have adopted a common sense approach to assessing the evidence of children, and have recognized that their evidence cannot be assessed on the same standard as the evidence of an adult witness. I must assess J.'s evidence having regard to his age, mental development, understanding and ability to communicate both at the time that the events took place and when he gave his evidence in court. The presence of inconsistencies in J.'s evidence, particularly about peripheral matters, should be considered in the context of his age at the time of the events.[^1]

[45] This does not mean, however, that J.'s evidence is not subject to the same standard of proof as the evidence of an adult witness. Although the Crown’s case depends almost entirely on the evidence of a child, it remains the obligation of the Crown to prove the offences alleged against Mr. Sumagpang beyond a reasonable doubt.

The Evidence

[46] There are a number of issues with J.'s evidence that trouble me, particularly when I consider it together with his mother's evidence.

[47] There were a number of inconsistencies between J.'s evidence and the statements he gave to the police. There were also inconsistencies between J.'s evidence and his mother's. The following are some examples. There are others.

[48] J. testified in this trial that when he was in Mr. Sumagpang's bedroom sitting in the computer chair watching a movie on Mr. Sumagpang's laptop, Mr. Sumagpang reached over and touched his penis under his basketball shorts. On March 5, 2013, he described the same incident to the police and said that Mr. Sumagpang touched him over his clothing. When he was cross-examined about this, he said that he did not remember talking about this incident on March 5, which was his frequent response when confronted with a prior inconsistent statement. He ultimately testified that he did not remember whether he was touched over or under his clothing on that occasion.

[49] At trial, J. testified that when he was pulling out Mr. Sumagpang's grey hairs in the living room of his apartment, Mr. Sumagpang reached under the pillow he was lying on, and touched J.'s penis on top of his clothing. J. announced that he was going to the washroom, got up, and left the room. At the preliminary hearing, J. testified that when he was pulling out Mr. Sumagpang's grey hairs on the couch in his living room, Mr. Sumagpang pulled J.'s shorts down and put his mouth on J.'s penis. J. told the police the same thing in his statement on April 18, 2013. He did not report this to the police in his March statement. Again, J. testified that he did not remember saying this at the preliminary hearing or in his April statement to police. J. testified that Mr. Sumagpang did not put his mouth on his penis when he was pulling out his grey hairs.

[50] J. testified that his mother and her boyfriend were on the other couch in the living room when this occurred, yet Ms. S. testified that she never saw J. pulling out Mr. Sumagpang's grey hairs in the living room.

[51] J. testified in chief that when Mr. Sumagpang came into his bedroom and lay on top of his back, he pulled down J.'s pants. When J. got up, he went to the washroom and noticed that his underwear was ripped. He testified that he changed, threw his underwear out in the garbage in the washroom, and went to play basketball. When he was cross-examined about whether his mother cleans the washroom, J. testified that he took the garbage bag with his discarded underwear to the garbage chute in his apartment building right away. He testified that the bag was full anyway. He acknowledged that he was disclosing that for the first time at the trial. It appeared to me that J. fabricated this detail on the spot to explain why his mother had not discovered his ripped underwear in the garbage.

[52] In addition, at the preliminary hearing, J. testified it was his shorts, not his underwear, that ripped. He described the shorts as black in colour and he said that he threw them out.

[53] J. testified that he did not tell the police in February, March or April, 2013 about the incident when Mr. Sumagpang pulled him into his bedroom, pushed him against the door, pulled his pants down and put his mouth on J.'s penis. At trial, he testified that he had a clear recollection of what happened during that event. At the preliminary hearing however, he testified that he did not clearly remember how this incident happened.

[54] Ms. S.'s evidence was also problematic. Generally, I found Ms. S. to be an evasive and non-responsive witness, and I have approached her evidence with caution. Her answers were often not responsive to the questions asked, both in examination-in-chief and cross-examination.

[55] Ms. Nedelkopoulos submitted that Ms. S.'s evidence corroborated some of J.'s testimony. For example, Ms. S. testified about going to the basketball tournament in Mr. Sumagpang's van and leaving Mr. Sumagpang and J. alone in the van while she and her boyfriend went into a store. Although both Ms. S. and J. testified about this, I note that Ms. S. testified that she did not notice anything unusual upon her return to the van, whereas J. said that he had left the front passenger seat after Mr. Sumagpang assaulted him, and sat in the very back of the seven-seater van.

[56] In addition, Ms. S. testified that she observed the kitchen incident in which J. testified that Mr. Sumagpang rubbed his penis against his buttocks in a mirror. She testified that, at the time, she did not think the incident was strange, yet she got up from the couch and motioned for J. to move away. It is unclear why Ms. S. would have felt it necessary to motion to J. to move away if she did not think the incident was strange. I do not accept Ms. S.'s evidence about this incident.

[57] Of equal concern to me is the nature of the relationship between J. and his mother, his mother's continued questioning of J. about what Mr. Sumagpang had done to him, and his mother's animus towards Mr. Sumagpang.

[58] J. testified that he was afraid of his mother when she gets mad. She had threatened to send him back to the Philippines. He did not want to upset her and he wanted to please her. Ms. S. testified that she did not know if J. was afraid of her. She agreed that she sometimes told J. that she would send him back to the Philippines if he did not behave, but she said that it was not a threat.

[59] Ms. S., in my view, attempted to paint a less than accurate picture of her daily life with J. during her evidence. J. testified that there were two bedrooms in the apartment. Mr. Sumagpang slept in one bedroom and his mother slept in the other. J. slept in the living room. Ms. S. testified that J. had a bedroom, and that she slept in the living room. J. testified that his mother hid her laptop when she was not home to prevent him from using it. Ms. S. denied that and said that the laptop was just left out in the apartment when she did not have it with her and that J. could use it. After his mother spoke to him following his March statement and he told her that he had more things to say, J. testified that she told him to go to the police station himself. He had to ask her to accompany him. Ms. S. denied this.

[60] J. testified that he spoke to his mother before he gave each of his statements. Ms. S. testified that before every statement, she asked J. what more Mr. Sumagpang had done to him or questions intimating that J. had not disclosed everything. This repeated questioning by his mother is particularly concerning given J.'s fear of her and her threats to send him back to the Philippines. Incremental disclosure of these allegations by J., standing alone, does not affect J.'s credibility or reliability. However, I find that the reliability of his evidence is weakened when the incremental disclosure is combined with Ms. S.'s repeated questioning, which preceded each disclosure, J.'s fear of Ms. S., and his knowledge of her dislike for Mr. Sumagpang.

[61] I find that J. was well aware of his mother's dislike of Mr. Sumagpang. J. was vague and inconsistent when asked about the relationship between his mother and Mr. Sumagpang. The first time he was asked about it, he testified that his mother did not like Mr. Sumagpang but that he did not know why. He said that his mother was upset about him using Mr. Sumagpang’s computer. He later testified that he was not sure if his mother disliked Mr. Sumagpang. When asked if he ever heard arguments between his mother and Mr. Sumagpang, he replied that he could not remember. When asked how he would describe their relationship, he said he didn’t know. He was not sure if the relationship was good or bad because he said he did not pay attention. Ms. S. testified that she thought J. knew that she and Mr. Sumagpang were not on good terms.

Conclusion

[62] I have given this case careful and anxious consideration. I cannot examine J.'s evidence in isolation from Ms. S.'s evidence. I am required to decide the case on the basis of all of the evidence. I am troubled by the fact that J. originally told police that Mr. Sumagpang had done nothing to him, but after repeated questioning by his mother, disclosed certain events. Each disclosure he made was preceded by questioning by his mother. This, together with the inconsistencies in J.'s evidence, and the discrepancies with Ms. S.'s evidence, has left me with a reasonable doubt. After much reflection, I have concluded that I am not sure that Mr. Sumagpang assaulted J. I am not satisfied that the Crown has overcome the presumption of innocence and established Mr. Sumagpang's guilt beyond a reasonable doubt.

[63] I therefore find Mr. Sumagpang not guilty of both counts.

Corrick J.

Released: December 1, 2015

COURT FILE NO.: CR-14-4-0000731-0000

DATE: 20151201

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ROMEL SUMAGPANG

REASONS FOR JUDGMENT

Corrick J.

Released: December 1, 2015

[^1]: R. v. R. W., [1992] 2 S.C.R. 122 at para. 26.