ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. W.M., 2016 ONSC 1142
COURT FILE NO.: CRIMJ(P) 261/13
DATE: 20160216
B E T W E E N:
HER MAJESTY THE QUEEN
Ms. C. Valarezo, for the Crown
- and -
W.M.
Mr. R. Brooks, for the defence
HEARD: January 11, 12, 13, 14, 15, 2016, at Brampton
REASONS FOR JUDGMENT
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Justice F. Dawson
[1] The accused is charged in an eight count indictment with committing various sexual offences over 30 years ago. Each of the counts refers to a three year time period ending December 31, 1985. There are two complainants, T.R., who was born in[…] 1971 and C.F., who was born in […] 1974.
Issues Related to the Indictment
[2] The counts in the indictment are not well particularized. This was canvassed with counsel at both the beginning and the end of the trial. The trial proceeded on the following understanding:
(1) Count 1, which charges the accused with gross indecency in relation to C.F., relates to allegations of non-consensual oral sex and manual stimulation performed on the accused by C.F. in Brampton.
(2) Count two, which charges the accused with gross indecency in relation to T.R., relates to allegations of non-consensual oral sex performed on the accused by T.R. in Brampton.
(3) Count three, which charges the accused with gross indecency with T.R., relates to allegations that the accused ejaculated on various parts of T.R.’s body during events which occurred later in the time frame, in Acton.
(4) Counts 4, 5 and 6 charge the accused with sexual assault contrary to s. 246.1 in relation to C.F. and T.R. over a three year period ending December 31, 1985. However, the offence of sexual assault did not come into force until January 4, 1983. Counsel agreed these counts were not invalid but that a conviction could only be registered in the event I found misconduct which would constitute sexual assault was proven to have occurred between January 4, 1983 and December 31, 1985.
(5) At the end of the trial Crown counsel agreed that the misconduct C.F. described likely occurred prior to January 4, 1983 and therefore count 4 should be dismissed.
(6) Counts 7 and 8 are both in relation to T.R. and allege that the accused had sexual intercourse with her when she was under the age of 14 years in contravention of s. 146(1) of the Criminal Code as it existed in 1985. It is agreed that count 7 relates to alleged events which occurred in Brampton and that count 8 relates to alleged events which occurred in Acton.
Overview
[3] T.R. and C.F. were friends and would visit each other’s homes. C.F. is about three years younger than T.R.
[4] T.R. testified that the accused started sexually assaulting her when she was about ten years old. The assaults initially occurred in the basement of C.F.’s aunt’s home where C.F. and her family were living at the time. The accused, who was some 15 years older, lived in the basement of that home with another man called “Big John”.
[5] Both T.R. and C.F. also testified that the accused would sexually assault them in his car in a nearby park. In T.R.’s case this included one act of sexual intercourse.
[6] According to T.R. these initial assaults stopped when the accused met her aunt, C.M., whom he later married. C.F. moved away to another province when she was eight years old and there were no further incidents between C.F. and the accused.
[7] T.R. testified that a year or two later the accused began to sexually abuse her again. She testified that he would sign her out of school and take her to his apartment in Acton or to his shop in Limehouse where he would sexually abuse her. The abuse included the accused ejaculating on various parts of her body and sexual intercourse.
[8] T.R. testified that on a number of occasions in Acton and at the shop she would be accompanied by another friend of hers named P.M. She said she believed the accused also had sex with P.M. at the Acton apartment because she saw P.M. come out of the bedroom undressed on one occasion.
[9] The allegations came to the attention of the police after T.R. made a complaint of sexual assault against one of her brothers. That led to the police speaking to C.F. who told the police about what had occurred with the accused.
[10] The accused testified and denied that any of the allegations occurred. He produced evidence that he is not circumcised, in contradiction of the testimony of both T.R. and C.F. that he was. He also led evidence that he does not have a mole or birthmark in his genital area as each of T.R. and C.F. testified to.
[11] In addition, Big John testified as a defence witness. He denied seeing anything occurring in the basement of C.F.’s aunt’s home. The defence also called P.M. She denied knowing the accused and said she was never picked up by him and taken to an apartment in Acton with T.R.
[12] There are a number of significant conflicts between the evidence of T.R. and C.F. They re-established contact after C.F. returned to Ontario. There are conflicts in their evidence about whether they discussed the accused prior to making their statements to the police.
[13] The accused has also called evidence about T.R. and her boyfriend living with himself and his wife for a time in 2011, about how and why she was asked to leave and about how T.R. learned that he was expecting a sizeable monetary settlement due to extensive injuries he received in an industrial accident.
[14] It is the position of the defence that T.R. and C.F. are colluding and may be motivated by the prospect of financial gain. Both T.R. and C.F. deny that.
The Evidence in More Detail
The Initial Assaults
[15] T.R. testified that she and C.F. were friends as children. T.R. was raised by her grandparents, who had legal custody of her. Her mother lived in the home but she had an illness that impacted the family’s life. A disabled aunt also lived in the home as did T.R.’s brothers.
[16] C.F. testified that she, her mother and her siblings lived for a time with her aunt and her aunt’s family a few blocks from T.R.’s home. The accused and Big John lived in the basement. The children in each of the homes knew one another and there was frequent visiting back and forth.
[17] T.R. testified that when she as about 10 years old she would attend at C.F.’s aunt’s home on a regular basis. She and C.F. would play in the basement. T.R. testified that about six months after she started going there the accused would get both her and C.F. to sit on his lap in one of two recliner chairs while he and Big John were watching TV. According to T.R. the accused would place his hands down the back of both her and C.F.’s pants. She and C.F. would look at each other while this was happening. T.R. said that the accused would touch her bum and her vaginal area under her clothing. She said that Big John would be sitting in another recliner about ten feet away when this was happening. According to T.R. this happened on a number of occasions.
[18] T.R. also testified that the accused had a small red car with two doors. There were bucket seats in the front and a bench seat in the back. She said he would ask her and C.F. to go with him to the store. She said she would ride in the back and C.F. would ride in the front.
[19] T.R. said the accused would end up driving to a particular park. She said he would park the car near a recreational centre. It was summer. There were trees around but it was not a forested area.
[20] T.R. said the accused would then get into the back seat with her and touch her and rub her vagina. C.F. remained in the front seat of the car. T.R. said she never saw the accused touch C.F. on these occasions. T.R. testified the episodes between her and the accused in the back seat lasted about one half hour. This happened a few times.
[21] T.R. also testified that on one occasion the accused had sexual intercourse with her in the back seat of the car while C.F. was in the front seat. T.R. said she cried but did not say anything to the accused. T.R. testified that the accused told both her and C.F. not to say anything.
[22] C.F. testified that when she was about six or seven and living at her aunt’s she and T.R. would play in the basement. She said her aunt would not allow the children to play upstairs and they either played in the basement or the backyard. She said that sometimes she and T.R. would be in the basement when the accused was there. However, she did not describe the incident’s T.R. testified to about sexual assaults while sitting on the accused’s lap in a chair.
[23] However, C.F. did testify about being sexually assaulted by the accused while she was in the accused’s car. She described assaults on her when she was alone in the car with the accused and she described both she and T.R. being sexually assaulted by the accused when they were together in the car.
[24] C.F. said the accused would touch her breast area and her vaginal area under her clothing. She also said she had to touch the accused’s penis with her hands and her mouth. She did not recall what led up to that. It happened to her about four times when she was alone in the car.
[25] C.F.’s evidence about the details of what would happen when she and T.R. were together in the car varied from T.R.’s. In contrast to T.R., C.F. said T.R. would always ride in the front seat and she would always be in the back seat. She said that the accused would touch T.R. on the breasts and vagina when T.R. was in the front seat. Sometimes C.F. would get out of the car and did not see what happened. C.F. also said that T.R. performed oral sex on the accused. T.R. made no mention of that.
[26] C.F. denied ever seeing the accused get in the back seat with T.R. She denied there were any sexual incidents in the back seat. C.F. testified that on one occasion she saw the accused have sexual intercourse with T.R. but said it occurred in the front seat and not the back seat as T.R. said.
[27] It is common ground that at the age of eight years C.F. and her family moved to another province and contact between C.F. and the accused and C.F. and T.R. ended. C.F. testified that she told her mother and sister about the abuse when she was 23 or 24 years of age.
[28] The accused testified that none of these sexual assaults occurred. He testified that when he lived in C.F.’s aunt’s home he shared the basement with Big John. He said he was working as a welder and was not around that much. When he was in the basement he was often drinking beer or playing guitar with Big John and he did not recall the children being in the basement. He said that sometimes if they came down he and Big John would send them away. He did not recall C.F. living in the house but did recall that C.F. and her siblings would come to the home after school until their mother could pick them up when she finished work. He testified that they would usually be gone before he came home from work.
[29] Big John testified as a defence witness. He is now 52 years old. In closing submissions Crown counsel referred to him as a credible witness. He testified that he only lived in the home from early summer to Halloween one year when he was 18 years old. He knew the accused, who was older than he was, because the accused had been friends with his father.
[30] Big John denied ever seeing T.R. and/or C.F. sitting on the accused’s lap. He never saw the accused doing anything with the children that was inappropriate. His recall was that the children were never really down in the basement. This tended to confirm the accused’s evidence. He also explained that he was often out. After he moved out of the home he lived nearby and would visit the home. His memory was significantly limited due to the passage of time.
[31] There is somewhat conflicting evidence about the accused’s ownership of and access to a car around this time. The accused testified that he had purchased a Toyota Celica which was multi-coloured due to replaced body parts and which was not running initially. It was eventually fixed up and painted. The next door neighbour had a red Toyota Celica which the accused was interested in purchasing. However, he testified he never drove it. Big John recalled the accused having a green Celica. The accused testified that later, his wife, whom he met around this period of time, had a black Celica.
[32] In any event, the accused testified that at times he drove and said that if he was going to the store or nearby mall he would let it be known that he would give anyone who wanted to go a ride. He acknowledged that it was possible T.R. and C.F. had been in the car with him, although he said he had no specific recall.
[33] T.R. said that when her aunt arrived from out of province to live in her grandparents’ home with her that she arranged for her aunt, now the accused’s wife, and the accused to get together. She did this in the hope that the assaults would stop. The accused and his wife each testified about how they met in a manner that did not involve T.R.
[34] Once T.R. and the accused got together the accused lived for a time in T.R.’s grandparents’ home before moving to Acton. By the time the accused moved in T.R. said the sexual assaults had stopped. It was generally in this time frame when C.F. and her family moved away.
[35] T.R. testified that she told her mother, her grandparents and her Children’s Aid Society worker that the accused had sexually assaulted her prior to the accused moving in. Nothing came of that.
[36] Both T.R. and C.F. testified that the accused is circumcised. The accused and his wife both testified that he is not. In addition, the accused filed photographs of his penis and genital area confirming that he is not circumcised.
[37] Both T.R. and C.F. testified that the accused had a mole or birthmark the size of a “Loonie” in his genital region. T.R. said it was on his leg below his testicles. However C.F. said it was in a different location. She stood up and pointed to an area on her own body on her lower abdomen somewhat above her pubic bone and to the left of the midline of her body. The accused and his wife both deny that the accused has ever had such a mark. The photographs filed by the defence demonstrate there is no such mark in the place C.F. indicated.
[38] Both T.R. and C.F. testified that the accused has red pubic hair. That is the case. The accused, who is now 59 years old, testified that he had a full head of very curly red hair when he was a younger man.
The Assaults in Acton and Limehouse
[39] T.R. testified that the accused and her aunt moved to Acton. A period of time passed when there were no sexual assaults. It is difficult to understand with precision when T.R. says the assaults commenced again because she has given somewhat conflicting accounts. First, she said contact started again when she was 13 to 14 years old. A few minutes later she spoke of the accused attending at the principal’s office to take her out of school and said that as she was only 12 years old an adult had to sign her out. This was the day she claims the accused began to assault her again.
[40] This discrepancy may simply be due to the passage of time. The reason I mention it is because there is importance to whether T.R. was under the age of 14 at the time she alleges there was further sexual intercourse and because she says the accused took her to his apartment in Acton which was located over a pet store. There is other evidence that there was a jewellery store below the apartment for about two years after the accused and his wife (T.R.’s aunt) moved in. The accused’s wife testified that it was later replaced by a pet store.
[41] I also observe that the timing of these events also could affect my assessment of the significance of what happened at the end of this part of the timeline. T.R. testified that at the age of 16 she and the somewhat older man she was with at the time, moved into the townhouse where the accused and her aunt were living. This could be viewed as surprising given her allegations against the accused.
[42] T.R. testified that on the first day of the renewed assaults the accused attended at her school. She was called to the principal’s office and was told she had a doctor’s appointment. She initially said she was unaware of the appointment. She said that the accused took her on a long drive and that she realized she was not going to the doctor. She then said that two years had passed since the last sexual assault.
[43] T.R. testified that the accused took her to his apartment in Acton. She thought they were going to pick up her aunt. She described the apartment. She testified the accused asked her to come into the bedroom, told her to take her clothes off and then had sexual intercourse with her. She said she complied because she was afraid. She figured if she told anyone about it no one would believe her. She said she told the accused to stop. She testified the accused then ejaculated on her neck.
[44] T.R. testified that the accused would pick her up from school in this fashion once or twice a month. Different reasons would be provided at the school such as that her grandfather needed her to help at home.
[45] However, T.R. then testified that on the second occasion when the accused picked her up she arranged to have a friend, P.M., come with her. P.M. attended a different school. She said she asked P.M. to skip school.
[46] T.R. explained that there were a number of occasions when P.M. would come with her and the accused to Acton or to Limehouse where she said the accused had a shop. She testified that on each occasion she would be sexually assaulted. She said she had been to the shop with P.M. and the accused about six times over the course of two years. She said they sometimes smoked marijuana or drank alcohol. She claimed that both she and P.M. were sexually touched inside the shop. She explained that on one occasion at the apartment in Acton she thought the accused had sexual intercourse with P.M. T.R. testified that she was taken to the Acton apartment 10 to 12 times and that P.M. was there with her two to three times.
[47] T.R. testified that on one occasion the accused asked her to come into the bedroom so he could give her a pearl necklace. Despite her prior experiences she said she took this literally. However, in the bedroom the accused took her shirt off, pulled his pants down and ejaculated on her neck while she lay on the bed. She described other incidents where the accused ejaculated on various parts of her body. She said he told her this was good for her skin.
[48] In cross-examination about this time period T.R. said she learned that her grandfather had called the accused and asked him to take her to the doctor. Her evidence evolved to indicate that the accused in fact took her to the doctor on more than one occasion. This would have been well after T.R. says she told her family members and her C.A.S. worker that the accused had sexually assaulted her.
[49] T.R. was cross-examined about how P.M. became involved on the second and some of the subsequent occasions. T.R. said P.M. would skip school. When it was pointed out to her that P.M. went to a different school T.R. indicated that she arranged in advance for P.M. to skip. When it was pointed out to T.R. that this must have meant that she knew in advance that the accused was coming T.R. then said that the accused had a cell phone.
[50] I would point out that if T.R. was 12 to 13 this would have been in 1983 or 1984. Crown counsel acknowledged during submissions that this does not make sense. Cell phones were certainly not common at that time and cellular service may not even have been available. The accused testified that he did not have a cell phone until many years later.
[51] P.M. was called as a defence witness. She testified that she does not know the accused. She does know T.R. However, she denied that she had ever left school to go with T.R. and the accused. She denied ever being at an apartment in Acton or a shop in any location with T.R.
[52] P.M. was interviewed by the police. She testified that before that interview T.R. contacted her by email or on Facebook. According to P.M., T.R. said she had a case and was chasing a person and asked P.M. if she remembered certain events.
[53] P.M. has a lengthy criminal record covering two pages. When T.R. was cross-examined about P.M. she said she had last seen P.M. in “Vanier”. T.R. explained that she had a relationship with P.M.’s husband when P.M. was in jail. However, T.R. said P.M. and her husband were separated at the time. P.M. acknowledged the contact between T.R. and her former husband and confirmed that they were not together at the time. She testified that her former husband told her about this. She explained why it did not create an animus on her part towards T.R.
[54] The accused and his wife both testified that T.R. had never been to their apartment in Acton. However, the evidence establishes that T.R. subsequently lived in Acton, which is a fairly small town.
[55] The accused and his wife also both denied that the accused had a shop in the Acton or Limehouse area. For a time the accused did have a shop much further away in the Belwood Lake area near Fergus. The description T.R. gave of the shop and of going under a bridge to get there does not fit with the description of the shop or its location as given by the accused or his wife.
Events Subsequent to the Alleged Offences
[56] T.R. testified that the last sexual assault by the accused occurred when she was 14 years old. She continued to live with her grandparents and other family members.
[57] T.R. testified that at the age of 16 she and her older boyfriend began to live with the accused and his wife (her aunt) in a townhouse in Mississauga. T.R.’s boyfriend approached the accused to ask if they could move in. The accused testified he was reluctant as he felt T.R. was a trouble maker who could not be trusted and who was difficult to deal with. After speaking with his wife, C.M., they agreed the couple could move in. Both the accused and C.M. testified that the arrangement did not work out because T.R. did not keep the part of the house she and her boyfriend lived in clean. They eventually told T.R. that she and her boyfriend would have to move out after they received reports of unusual events occurring in the house when they were away and because T.R. had become pregnant.
[58] The accused testified that when he told T.R. and her boyfriend they would have to leave T.R. became angry and packed a bag immediately and moved out.
[59] When T.R. was cross-examined about why she would move into the accused’s home when he had been her abuser not long before, she said it was her boyfriend’s idea. She said her boyfriend and the accused had a connection because they drank together. She said she felt she would be safe in the home with her boyfriend living there. Her boyfriend was not called to testify.
[60] T.R. said she left the residence because one day the accused came to her and said, “Put out or get out”. T.R. said she told her aunt C.M. about this. She claimed that C.M. then confronted the accused about it and that the accused pushed C.M. down the stairs, breaking her wrist.
[61] C.M. testified that T.R. claimed that the accused had asked her to give him a blow job and that when T.R. refused the accused told her to get out. C.M. said, in essence, that she chalked this up to T.R. telling one of her stories. C.M. denied that there was any confrontation with the accused that led to her being pushed down the stairs. Both C.M. and the accused testified that C.M. did have a broken wrist about that time but said it occurred when C.M. slipped on a child’s toy and reached out to break her fall.
[62] There are some inconsistencies between the evidence of the accused and his wife C.M. about the length of time T.R. lived in the house and about precisely when some of the events I have described occurred.
[63] I also note that both the accused and C.M. testified that when they heard that T.R. was telling people that he told her to put out or get out, the accused and some others went and confronted T.R. about making false allegations.
[64] Despite all of the allegations that have been mentioned so far T.R. continued to associate with the accused and his family. All of the parties were living in Acton.
[65] There is evidence that T.R. would ask the accused’s daughter, C.M. and the accused to babysit her son. Evidence was led about such a request made by T.R. around Christmas 2011. This was shortly before T.R.’s statement to the police in January 2012. There are some discrepancies between the evidence of T.R., C.M. and the accused about precisely what occurred and who was asked to babysit.
[66] What is apparent is that T.R. was looking for a babysitter so she could go out. She ended up approaching the accused and C.M. T.R. ended up staying for supper before leaving her child with the accused and C.M. She came back to pick up her child later than expected.
[67] The accused and C.M. each said that over the course of that day T.R. heard them discussing the fact that the accused was expecting a monetary settlement in the near future in relation to a lawsuit for extensive injuries he received in a serious industrial accident. The accused said that was discussed when everyone was smoking in the garage. C.M. said it occurred while they were having a beer in the kitchen.
[68] T.R. testified in chief that she was not aware of the accused’s injuries or of a lawsuit. She had heard that he fell off a ladder. T.R. denied that she had or has any intention of making a civil claim against the accused for sexual assault.
[69] The accused and C.M. explained that the accused was almost killed in the accident and that it was well known within the family that the accused had sued for a large sum. He said that a floor he was walking on collapsed and a piece of heavy equipment fell on top of him.
Matters Are Brought to the Attention of the Police
[70] Cst. Maria Smith of the Peel Regional Police testified that on January 3, 2012 she interviewed T.R. as a result of an allegation of abuse T.R. had made against her brother. As a result of that interview Cst. Smith interviewed C.F. on January 11, 2012 about T.R.’s allegation against her brother. At that time C.F. made sexual assault allegations against the accused.
[71] Cst. Smith then interviewed T.R. again on January 12, 2012. That led to the arrest of the accused on February 22, 2012.
[72] It appears from this chain of events that T.R. did not intend to make an allegation against the accused when she went to the police in January 2012.
[73] However, at the end of T.R.’s examination-in-chief she said that she did in fact have plans to make a complaint against the accused. This answer appeared to come as a surprise to counsel. There were no follow-up questions. That testimony by T.R. is significant in view of a number of inconsistencies between the evidence of T.R. and C.F. about the nature and extent of any communications between them before they made their statements to the police.
[74] T.R. testified that she was about 12 years old when C.F. moved away. They had no contact until T.R. was 19. At that point C.F. returned to Ontario and was routinely visiting her cousin who was living in the same apartment building as T.R. T.R. said they saw each other almost daily for a period of years. C.F. then moved “up north” and contact stopped. T.R. said they renewed contact again after the complaint to the police. T.R. testified that she looked C.F. up on Facebook.
[75] T.R. denied that she ever had any discussions or communication with C.F. about the accused until after the second time T.R. had spoken to Cst. Smith. Subsequently, she testified she visited C.F. at her home north of Toronto and went out to a bar with her. T.R. continued to deny that she talked to C.F. about the accused.
[76] C.F. testified that she and T.R. reconnected when C.F. moved back to Ontario when she was about 18. At first they had phone contact but C.F. said they eventually met at T.R.’s apartment in Mississauga. C.F. said she went to see T.R. to talk about things from the past. She said they spoke about the accused for about one hour. That stands in contradiction of T.R.’s evidence that there was no such discussion. C.F. said nothing about maintaining almost daily contact with T.R.
[77] C.F. also testified that she spoke to T.R. again about the accused before she spoke to Cst. Smith. This is, again, in direct contradiction of T.R.’s evidence. C.F. said that this conversation was on the telephone and was mixed in with their discussions about the molestation allegations T.R. was making against her brother.
[78] C.F. and T.R. remain friends. C.F. said that after speaking with the police they have spoken about the accused on two further occasions. This is a further inconsistency with T.R.’s evidence.
Analysis
[79] Crown counsel has not applied to have the evidence of one count applied to another count. Consequently, I must approach my determination of verdicts with that in mind. I am, however, entitled and required to take all of the evidence into account in assessing the credibility of the various witnesses.
[80] I have also instructed myself in accordance with R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. I will not repeat the well-known words of Cory J. outlining the three steps of analysis that are designed to ensure that a conviction is not registered unless the case is proven beyond a reasonable doubt.
[81] I wish to state at the outset that this case suffers from many of the problems inherent in historical prosecutions. More than 30 years have passed since the relevant events. Memories have faded. Things that might be considered significant inconsistencies in a fresher case must sometimes be viewed as less significant in a case that is so old. Fair allowance must be made for all witnesses having regard to the very dated nature of this case.
[82] I also keep in mind that T.R. and C.F. are recalling events which they say occurred when they were children. While I must evaluate their evidence on the basis that they are adults, I must also keep in mind that they are testifying to memories they claim were formed when they did not see the world through adult eyes.
[83] I will start with the testimony of the accused. He denies all of the misconduct alleged against him. I have to say that I thought he was a relatively good witness having regard to the passage of time in this case. Contrary to some of Crown counsel’s very capable submissions to the contrary, I thought he presented his evidence in a fairly straight-forward fashion. There were certainly a number of inconsistencies in his evidence and between his evidence and his wife’s. However, these seem to me to be within the range of what would be expected in a case of this age. I do think the accused tended to exaggerate somewhat from time to time or to lay some things on a bit thick, to use the vernacular. However, overall I did not form the impression that he was being deceptive.
[84] Both the accused and his wife were subjected to well prepared and thorough cross-examinations. I formed the view that both of them withstood cross-examination reasonably well. I wish to observe that while both the accused and C.M. ended up saying many negative things about T.R. most of that was elicited during cross-examination. Crown counsel was entitled to explore any bias. Both C.M. and the accused were required to answer those questions. They did so. However, it did not seem to me that either of them had set out in examination-in-chief to launch a major attack on the character of T.R.
[85] Crown counsel essentially agrees that Big John appears to be a credible witness. I note that his evidence tends to contradict that of T.R. and C.F. about being in the basement frequently when the accused and Big John were there. Big John’s evidence also tends to undermine T.R.’s evidence about the accused placing his hands down T.R. and C.F.’s pants.
[86] I wish to add that I must obviously decide this case on the basis of the evidence which I have. There are, however, a number of circumstances and situations that were described in the evidence where one would have hoped that some additional evidence might have been called to clarify events or support the evidence of T.R. and C.F. by rebutting allegations of recent fabrication. I do not draw an adverse inference from the failure to call such evidence but, as juries are routinely instructed, a reasonable doubt can arise from the evidence or the absence of evidence.
[87] In this regard I add the following. Both T.R. and C.F. testified that the accused is circumcised. The photographic evidence confirms the accused’s testimony that he is not. This is a significant hurdle for the prosecution to deal with.
[88] Crown counsel suggested to the accused in cross-examination that when his penis was erect his foreskin would be retracted. Both the accused and his wife agreed but with the qualification that it was, in his case, always visible. No medical evidence was called. I have the photographs and the testimony I have referred to on the point. The photos portray a significantly long foreskin.
[89] Of greater significance, however, is that there is no evidence that T.R. and C.F. only saw the accused’s penis when it was erect. That may be the case. However, I do not know. I can infer from the evidence that it was likely erect most of the time when they saw it but it would be speculation for me to conclude that they never saw it in a flaccid or less than erect state. While in all the circumstances I am not able to conclude that the fact that the accused is not circumcised is as dramatic a factor as defence counsel submits, it is nonetheless a significant factor when all of the evidence is evaluated together pursuant to the reasonable doubt standard.
[90] The birthmark may be described in the same way. The photos show there is no such mark where C.F. says it was. As I understand the evidence of T.R. the birth mark may be in a location not seen on the photographs. I do note that the accused offered to make himself available for a private examination. While I do not put great weight on that it seems to me to be an offer inconsistent with a person trying to hide a mark which both T.R. and C.F. said was distinctive and at least the size of a “Loonie”.
[91] Turning to T.R.’s evidence, I noted when she testified that she was very concrete in her responses to questions. She gave short clear answers that were responsive to the questions asked and initially made a favourable impression. As her testimony went on, however, it seemed to evolve in a number of areas. Her testimony about the accused picking her up from school and taking her to the doctor is in this category. I would say the same thing about her evidence regarding the arrangements that needed to be made in advance so that she could contact P.M. Her evidence about the accused having a cell phone in 1983 or 1984 is quite unbelievable. By that point in her evidence I was forming the view that she was making parts of her testimony up as she went along.
[92] T.R. also testified that she told her grandparents, her mother and, most significantly, her C.A.S. worker that she was being sexually assaulted by the accused. Yet no one did anything. More than that, according to T.R., her grandfather permitted the accused to take her out of school and later had the accused move into the home once he was with C.M. I note that her grandparents are deceased.
[93] It is perhaps not completely surprising that the grandparents or family members would take no action but it is more difficult to accept that a C.A.S. worker involved with the family was told and took no action. We are speaking of the early 1980s, not the 1960s.
[94] It also is somewhat difficult to accept that if the abuse occurred T.R. would come to live with the accused and C.M. at the age of 16 in close proximity to the period of sexual abuse. In addition, it seems unusual that contact was maintained with T.R. seeking babysitting services from the accused and/or C.M. around Christmas time in 2011. I accept the evidence of the accused and C.M. on this point. This is particularly so given T.R.’s testimony at the end of her examination-in-chief that she did plan to make a criminal complaint against the accused.
[95] By the end of T.R.’s evidence I found myself being seriously concerned about her credibility and reliability. I noted that there was a significant lack of detail in her evidence.
[96] C.F.’s demeanour was better than T.R.’s in my view. However, I note that there are a number of inconsistencies between her evidence and T.R.’s evidence concerning matters they both testified about.
[97] C.F. did not say anything about either her or T.R. being touched in the basement of her aunt’s home. She was also very clear in saying that sexual assaults in the accused’s car always happened in the front seat. In fact she said that the person who was not being assaulted would be told to get into the back seat. C.F. also said the assaults in the car occurred in a forested area of the park while T.R. said they occurred when the car was parked near the recreation centre, which was not a forested area.
[98] The most significant inconsistencies between C.F. and T.R. are in relation to the collusion issue. T.R. adamantly maintained that she and C.F. never had any discussion about the accused prior to their statements to the police. C.F. contradicted that, as previously mentioned. In fact she said that she and T.R. had a telephone discussion in advance of the interviews where they discussed both the accused and T.R.’s brother. I see this as significant given T.R.’s testimony that she intended to make a complaint about the accused and would have done so even if Cst. Smith had not raised that matter with her.
[99] Turning to P.M.’s evidence, as I said earlier, despite her criminal record I am not able to say that I disbelieve her evidence. P.M. was cross-examined on a portion of her statement to the police at p. 9 where she referred to T.R. as a “pretty good storyteller”. P.M. told the police she wanted to cut off contact with T.R. “cause of her lies”. P.M. then went on to say that “with her stories [T.R.] was just turning into a pig”.
[100] In cross-examination Crown counsel attacked P.M.’s evidence on the basis of this statement. This resulted in earlier parts of P.M.’s police statement being put to her. When I look at the portions of the statement put to P.M. in cross-examination it does not appear to me that she set out from the beginning to characterize T.R. in this fashion. In the earlier portions that were put to her P.M. told the officer that T.R. had contacted her months previously to talk to her about an alleged sexual assault. P.M. said she told T.R. that she did not remember the situation. In another portion of the statement P.M. said she had hung out with T.R. since she was 12. P.M. told the officer what schools they went to, that she and T.R. did not go to the same school and that she did not know the accused. Several pages later the officer asked P.M.: “Is there anything that you think is important for us to know?” It was only in response to that question that P.M. told the officer T.R. was a good story teller and that she lies.
[101] It seems to me that P.M. was providing a responsive answer to the officer’s question. In context I do not see this as an indication that P.M. was out to get T.R. as Crown counsel suggests. Having said that, I do take this evidence into account for all of its permissible uses.
[102] After considering all of the evidence I find I am left in a state of reasonable doubt about whether these events ever happened. That doubt is formulated at the second stage of the W.(D.) analysis. I do not necessarily accept all of the defence evidence but I am not convinced I should reject it. I am also concerned that there has been collusion between T.R. and C.F. This is based on the clear inconsistencies between them about whether they discussed what happened with the accused prior to speaking to the police. Against the background of all of the shortcomings, inconsistencies and contradictions in the evidence of T.R. and C.F. that I have referred to I am simply not sure that these events occurred. They may have. But overall the evidence fails to convince me beyond a reasonable doubt.
[103] The accused is found not guilty on all counts in the indictment.
Justice F. Dawson
Released: February 16, 2016
CITATION: R. v. W.M., 2016 ONSC 1142
COURT FILE NO.: CRIMJ(P) 261/13
DATE: 20160216
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
W.M.
REASONS FOR JUDGMENT
Justice F. Dawson
Released: February 16, 2016