CITATION: R. v. A.S., 2016 ONSC 3032
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
A.S.
Defendant
Mareike Newhouse, for the Crown
Michael Fairney, for the Defendant
HEARD: March 29, 30, 31, April 1, 4, 6, and May 13, 2016
REASONS FOR JUDGMENT
B. P. O’Marra, J.
OVERVIEW
1On December 15, 2014, J.K. pleaded guilty to aggravated sexual assault, sexual interference, invitation to sexual touching, making child pornography and making child pornography available. He had been charged and arrested on February 10, 2014. The victim of all the offences was his nine-year-old step-daughter, I.B. The offences occurred between September 2013 and February 2014 in the family home shared by J.K., I.B., I.B.ʼs mother, A.S., and I.B.’s younger brother, R.
2The Crown alleges that A.S. knew that her daughter was being victimized by J.K. from at least April 2013 and that her daughter was at ongoing risk of further harm from J.K. The Crown further alleges A.S. did not take steps to protect I.B. As a result, A.S. was charged with the following criminal offences:
(1) Failure to provide the necessaries of life, contrary to s. 215(2)(a)(ii) of the Criminal Code of Canada, R.S.C. 1985, c. C-46;
(2) Criminal negligence causing bodily harm, contrary to s. 221 of the Criminal Code; and
(3) Permitting prohibited sexual activity, contrary to s. 171(a) of the Criminal Code.
3A.S. pleaded not guilty to all three counts. The Crown sought a ruling as to the admissibility of utterances and statements made by A.S. to the police and to the Children’s Aid Society (“the CAS”). It was agreed between counsel that the evidence on the voir dire would become evidence on the trial proper subject to the rulings as to admissibility.
4On April 4, 2016, I ruled that the utterances and statements made by A.S. to the police on February 11, 2014 were admissible. I also ruled that the utterances and statements made by A.S. on February 12, 2014 to the police and the CAS were inadmissible. The reasons for my rulings were released on April 21, 2016 and are reported at 2016 ONSC 2626.
THE EVIDENCE
Events of February 10, 2014
5Detective Constable Amy McGuire has been a member of the Toronto Police Service (“the TPS”) since August 2006. She has worked in the sex crimes unit since October 2008. The Child and Youth Advocacy Centre (“the CYAC”) is a joint task force involving the TPS and the CAS. One of the goals of the CYAC is to assist young victims of sexual abuse and prepare them to testify in court.
6On February 10, 2014, Detective Constable McGuire was assigned to work with Detective Constable Will Chen. The TPS had received information that a nine-year-old girl had disclosed to a physician at Toronto East General Hospital that her mother’s boyfriend had touched her vagina.
7Detective Constables McGuire and Chen attended the hospital at 5:50 p.m. and met with A.S., her son R., and the complainant, I.B. A.S. was nine months pregnant. She was breathing in a shallow manner but did not exhibit any other signs of discomfort. She was cooperative with the police in the sense of facilitating access to her daughter. Detective Constable McGuire located a quiet room for the interview of I.B.
8The interview of I.B. commenced at 6:18 p.m. It was recorded on video. The transcript runs 66 pages. Detective Constables McGuire and Chen were present. Detective Constable McGuire took the lead in asking questions. Detective Constable Chen asked a few questions before the interview ended at 7:23 p.m.
9I.B.’s statement included the following information:
(i) She was nine years old and in grade four;
(ii) She lived with her stepfather, J.K., her mother, A.S., her brother, R., and sometimes J.K.’s children;
(iii) Her brother, R., was seven years old;
(iv) J.K. was 26 years old and A.S. was 27;
(v) Her mother had family in the Toronto area; and
(vi) Her birth father’s family lived in Vancouver.
10The following excerpts from I.B.’s statement of February 10, 2014 were relevant to the allegations against J.K. and also as to when A.S. may have known about the abuse of her daughter:
I.B.: … And then after when my mom’s not always home umm he does things to me, even though I don’t like it.
I.B.: Mmm so, on Saturday, he told me to take a video (sic) in the washroom. And then after he told my mom what he did when he’s not there. That’s why umm I was also crying because of (UI:02).
MCGUIRE: So, you said he told you to take a video in the washroom?
I.B.: Yes.
MCGUIRE: So, what did you use to take a video?
I.B.: His phone and after my mom, he’s like can you please pass me my phone; that was at dinner time then after my mom passed it to him after she opened it and then after there was a password and then after he grabbed it from my mom because he was hiding it. And after he deleted it and yeah (sic).
I.B.: … But like I didn’t want to do it but he was keeping forcing me. I did not wanna do it.
MCGUIRE: Mmhm.
I.B.: And then after I had to tell my mom all about it.
MCGUIRE: And what did your mom say?
I.B.: She says don’t worry we’ll get help.
MCGUIRE: Okay, when did you tell your mom?
I.B.: Umm on Saturday.
MCGUIRE: On Saturday?
I.B.: Yeah (sic).
MCGUIRE: So, when you do something then he does something for you?
I.B.: Mmhm.
MCGUIRE: Like what? What does he do?
I.B.: He buys something for me. But when I don’t wanna (sic) want to even though when I want to get something I even don’t want to do…yeah (sic). Then after then my mom went to work last time that’s the last time when it happened.
MCGUIRE: When he made you put your mouth on his penis, what did he do?
I.B.: Nothing because he kept on telling me to keep on doing it but I said I don’t want to. And after that like there’s only 5 more minutes because he told me we were going to do it for 19 minutes now. Then after now my mom started not going to work, now he stopped doing it.
I.B.: So, he started rubbing my thing after I didn’t want it, I didn’t like it. So, umm I just stayed because I want to play and after my mom was taking a shower. Umm we went into the bedroom and we umm started doing it. Then after we went out because umm (UI:01) and after my mom she came out of the shower and we were there, it was like a long (UI) after that, we were still there and after my mom founded out she started crying. After he promised me that we’re not going to do it anymore but I’m like okay. Then after he started it, he actually lied to me.
MCGUIRE: Okay, so tell me more about that, how long ago was that time when you were playing on the computer?
I.B.: Umm I don’t remember but I was 8 years old.
MCGUIRE: You were 8 and you’re 9 now.
I.B.: Mmhm.
MCGUIRE: And you said your mommy found out?
I.B.: Yes then after he stopped doing it, he told me we are not going to do it anymore. I’m like okay. I was very happy when he said that. And then after the next time when he slept, then after we started doing it again. That was making my mind why is he still doing when he promised that we’re not going to do it anymore.
MCGUIRE: So, what did mommy found out happened?
I.B.: When I was sucking his penis and that umm my mom was crying cause it wasn’t, I didn’t plan to do it I never wanted to do it but he was forcing me to.
MCGUIRE: So how did your mom find out?
I.B.: By umm taking a shower and then after I hid in the closet because he told me to. Where my mom always dresses and grabs clothes.
MCGUIRE: Mmhm.
I.B.: Yeah (sic) so that’s how my mom founded out. And then after we moved for a few months later, then one year we went to my grandma’s house to stay and then after my stepdad, to get away from him right. So, my stepdad, my mom was still thinking my stepdad was forcing my mom just to go back to get me. Then ugh my mom she had nothing to do because she was also scared of him. Umm he’s scaring me, my mom and my brother. And he’s umm my aunt also said that when I told my aunt about the story when he smacked me on my butt. And then after she’s like why did he slap you because umm R. was putting his hand there and after I closed the door when I came up. He did not let me explain about anything.
MCGUIRE: Okay, so the…we can think of the time when you were umm when mommy was in the shower and he took you into the bedroom and locked the door.
I.B.: No, actually yeah (sic) the door was locked.
MCGUIRE: Or mommy, you said mom…sorry where was mommy that day?
I.B.: She was at the washroom taking a shower.
MCGUIRE: Okay and the next time we talked about was when you were on the computer.
I.B.: Mhmm.
MCGUIRE: Right and he started touching you while you were on the computer.
I.B.: Yeah (sic).
MCGUIRE: And then mommy went and had a shower.
I.B.: No, she wasn’t at the shower that time, she was at the bedroom.
MCGUIRE: Okay and he umm made you suck his penis and then you said he told you all about what happens if something comes out of his penis. Can you tell me what he told you?
I.B.: Yeah (sic) umm I forgot what he told me. I forgot what he told me.
I.B.: And then after I asked my mom when are you going to work and she’s like, sometimes yes sometimes no and that’s why I don’t really want her to go to work.
I.B.: I forgot (UI) but I don’t really like what he does to me. And I don’t even want to learn anything about that because I’m too young and all focusing on school and playing. And he keeps on telling me umm what it is and like I just say in my head like whatever. And after I was happy when we went to my grandma’s and then umm we have to leave because my mom said we are going back there and like no I was crying. Because I didn’t want to do it anymore. Because I knew that it was going to happen again.
MCGUIRE: Did you tell your mom that?
I.B.: No, it wasn’t the day when I told my mom; it was Saturday, this, last Saturday.
MCGUIRE: When your mom found out, did you have a conversation with her?
I.B.: Yes, he was with my brother buying batteries for the car. That’s when I gave him the idea and then after when he was upstairs, my mom asked me is there anything (UI:02) I didn’t want to tell my mom because he was scaring me and I didn’t want to tell her like nothing. But after when (UI) went upstairs I had to tell my mom, just so I can just get over with it, yeah (sic).
MCGUIRE: Okay but you said there was the time that she knew about it, right?
I.B.: Mmhm.
MCGUIRE: When you were 8?
I.B.: Yes, she was, I think I was 8 or 9. She was crying and crying. Then after he had a conversation with my mom but he never told me why he wants to do it. And he’s like…because actually he did he’s like because I love you but I’m like in my head if he loves me then why won’t he stop if I don’t want to do it. It doesn’t mean he loves me; it means that he just wants to do it for himself. Then after today I told my mom that if someone does that to your child, a stepfather or anything that means they don’t really love you right. And after she said yes and then after that’s why I didn’t really like love him. He asks he if I love him and I say yes because I don’t want to hurt his feelings but I don’t actually.
MCGUIRE: Mmhm. Okay, do you remember what time of year it was when mommy found out?
I.B.: Umm 2012.
MCGUIRE: 2012, so not last year?
I.B.: No.
MCGUIRE: Because it’s 2014 right now.
I.B.: Mmhm.
MCGUIRE: Okay.
I.B.: (UI) I think it was when I was 8, it happened 2012.
MCGUIRE: Do you remember what the weather was like out?
I.B.: It was night time.
MCGUIRE: Do you remember if it was cold or warm?
I.B.: I forgot.
MCGUIRE: Okay, umm was it close to any of your birthdays or holiday?
I.B.: It happened in December when it was almost going to be Christmas.
MCGUIRE: That’s when mommy found out?
I.B.: No, that was like I think it was September maybe. That’s when it started happening.
MCGUIRE: So, how did mommy know that it was happening?
I.B.: Umm she knew there was something weird going on. Umm she told me that’s why she hurries up and takes a shower, so he doesn’t do it to me and that’s why she says I’m when she was taking a nap but she wasn’t, so she could get more evidence umm about what’s going on. And after she was cooking, she was looking after I was looking at her. She knew something was going on because she saw him giving me the phone. Then after I didn’t really want to do it but I had to. I had a plan in my head get a pan and smack him with a pan. And that’s funny. And also when I had another plan that umm when he comes out from somewhere, or the door I’d get the pan because I knew my mom was going to tell the police; I’d get the pan say hi and the pan’s right where his head is and then bring him to the police car. That’s funny.
MCGUIRE: Okay, I guess what I’m trying to ask is what did you tell mommy had happened back in 2012.
I.B.: I told her this year. Umm so, when I told her I told her everything he did to me and then after I told her that I don’t like it. Then after I told her that’s why we went to Yorkdale because he had to give me an exchange and that’s why I got a lot of elastic bands from the Rainbow Room.
MCGUIRE: Mmhm.
I.B.: And that’s why I got my Rainbow Room, umm yeah (sic).
MCGUIRE: So, when did you tell mommy?
I.B.: Umm on Saturday.
MCGUIRE: Like this Saturday.
I.B.: Yes.
MCGUIRE: Did mommy know before this?
I.B.: Umm yes because she knew that something’s happening. And now she knew something’s happening and I was going to warm my mom but I couldn’t because I had to go to school. Then he asked my mom to go get his phone in the car and my mom’s like no because she didn’t want anything to happen to me.
MCGUIRE: When was this?
I.B.: Yesterday.
MCGUIRE: Oh okay.
MCGUIRE: So, what, you said mommy had an idea things were going on before; had you told her he asked you that he made you suck his penis? Had you told her that?
I.B.: No, I never told her that but I told her that Saturday.
MCGUIRE: Okay so, until Saturday, you hadn’t told mommy?
I.B.: On Saturday, I told my mom everything all about it and after she called our friend to get some help and yeah (sic) she told me she has a plan so he could stop.
MCGUIRE: Okay have you ever had your other than the time he made you go into the bathroom with his phone, has he ever taken a picture or video of you when he’s touching you or –
I.B.: No.
MCGUIRE: No.
I.B.: But I did take a picture of my thing when he went in the bedroom.
MCGUIRE: Just once?
I.B.: More than once.
MCGUIRE: He took a picture?
I.B.: Yeah (sic) but then after he told me I’ll delete it. And I promise I did not want to do it and I’m like okay. Then I had to tell mom because it was very important to tell her. Because she told me the first time we went back that she told me tell me everything what he does, if he does if it’s not good and almost right away as soon as possible.
MCGUIRE: Okay, so what did you tell mom?
I.B.: So, I told mommy, yeah (sic) okay, then after I didn’t really tell her because I had a plan to tell her and then when she asked me I told her about everything. I was planning to tell her the next day but I’m like no, not at the bus stop. I just told her right away and I was crying and crying because of it.
MCGUIRE: And when was that?
I.B.: That was Saturday and mommy told me don’t go near him and when he has a blanket don’t go under it with him but he does force me to do that and umm yeah (sic).
CHEN: Okay, so are you completely naked at those times when you take the pictures?
I.B.: No.
CHEN: You have clothes on?
I.B.: I only have my clothes on but I only take off my underwear and pants.
I.B.: And I wanted to delete it but after I was thinking if I delete it, he will say go take another video. And then after umm I was thinking this in my head that umm if my mom takes it and gives it to him, I’ll be fine but I wasn’t. My mom came and looked at his phone; she was trying to find some evidence.
CHEN: Mmhm.
I.B.: That was there because she knows something was going on.
CHEN: So, when was the last time you remember taking pictures?
I.B.: I forgot.
CHEN: Was it a long time ago?
I.B.: Mmhm.
CHEN: When was the last time you saw on his phone those videos?
I.B.: Umm after I did it.
CHEN: Do you think he still has those videos on his phone?
I.B.: No.
CHEN: No, how do you know?
I.B.: It’s because my mom when she tried to take his phone and then after they were fighting over this my mom she’s like, he’s like, umm what did you tell; what did you write on your phone to show I.B. and then after he found that, after he’s like why can’t just you tell everyone, the family the whole thing. After she’s like because I just wanted attention but she was actually lying so she won’t get in trouble because if she gets in trouble, she had this bruise in her eye because umm when he slapped over here. I told my aunt about that and then after umm yeah (sic) and then after my mom, she was actually trusting my stepdad but she wasn’t supposed to. And my aunt told my mom that he might do something with I.B., something like those stuff that I told you. And my aunt was right because she knew by his face umm yeah (sic).
CHEN: Okay.
I.B.: And I never told my aunt or anyone else.
CHEN: And would he be completely naked as well or just his pants?
I.B.: No, just his pants a little off.
CHEN: Little off, so it’s not all the way down. It’s just taken down.
I.B.: And when I also told my mom and she said don’t go near him, don’t go near him don’t go under the covers because she doesn’t like that because she knows that and I also know that he’s going to do it to rub my thing yeah (sic).
MCGUIRE: When did mommy say that?
I.B.: When I told her.
MCGUIRE: On Saturday?
I.B.: Yeah (sic).
CHEN: No, okay. Besides telling your mom, have you told anyone else?
I.B.: Umm no.
I.B.: And he keeps on forcing me but it’s not really what…it’s not what you want.
CHEN: And is that during when you go to bed?
I.B.: Umm no. When my mom goes to work.
CHEN: To work, oh so, during the day?
I.B.: Mmhm.
11I.B. testified at trial by way of CCTV. She is now eleven years old and in grade six. She lives with her aunt, her younger brother, R., and other family members.
12The Crown asked I.B. in court to watch and listen to her interview by the police on February 10, 2014. She did so and adopted the content of the video as truthful. Pursuant to s. 715.1 of the Criminal Code, the video and transcript were made exhibits on the trial. I.B. was not asked any questions in cross-examination.
13All of the events appeared to have occurred in the family home. It was clear from the interview that A.S. and her son, R., were potential witnesses against J.K. and would have to be interviewed. The information from I.B. referred to sexual abuse against herself and domestic violence against A.S.
14At the conclusion of the interview of I.B. on February 10, 2014, Detective Constable McGuire had specific information that A.S. was informed of the sexual abuse on February 8, 2014. There was also less definitive information that A.S. may have known of the abuse much earlier. Detective Constable McGuire testified that at that point she did not believe that A.S. could have known of the abuse for a longer time and not protected her daughter. She did not view A.S. as a suspect for any offence. There were grounds to charge J.K. with various sexual offences against I.B.
15Detective Constable McGuire wanted to speak to A.S. as a potential witness but decided it was not ideal to do so at the hospital. Patricia Williams of the CAS drove A.S. and her two children to the police station. J.K. had been contacted to surrender himself. A.S. and her children were moved to a back room to avoid any possible contact or sighting of J.K. when he arrived at the station. A.S. allowed Detective Constable McGuire to use her phone to contact J.K. at 9:45 p.m. He confirmed that he was en route to the station.
16A.S. was adamant with the police that her family not be contacted or informed about the situation. The police and CAS felt it would be unsafe for A.S. and her children to go home until J.K was in police custody.
17J.K. arrived at the station at approximately 10:00 p.m. He was interviewed extensively and admitted various sexual offences against I.B. He did not provide any information that implicated A.S. in any way.
18With J.K. in custody, the police felt it was safe for A.S. and her children to return to their home. A.S. promised that they would not touch or interfere with any electronic devices in the home. The police would be checking any computers and phones for evidence against J.K. A.S. expressed concern for J.K. She and her children were driven home by the police close to midnight.
Events of February 11, 2014
19In the afternoon of February 11, 2014, A.S. and her children attended the offices of the CYAC at the request of Detective Constable McGuire. I.B. was to be examined by a registered nurse. A.S. agreed to that and was present as I.B. was examined. A follow-up appointment was arranged through A.S.
20Detective Constable McGuire spoke to A.S. outside the examination room. She did not make contemporaneous notes of this conversation but recalled it. She was surprised that despite the circumstances and criminal charges against J.K., A.S. continued to say she was concerned for him. She said she missed him and wanted to see him.
21A.S. agreed to be interviewed on video in a room provided by the CYAC. Detective Constable McGuire viewed her as a witness in the case against J.K. Detective Constable McGuire and A.S. were the only ones in the room. Patricia Williams of the CAS and Detective Barb Douglas watched the interview in real time in a separate room.
22The interview commenced at 4:29 p.m. and runs for approximately 1.5 hours. The video was played at trial and a sixty-five page transcript was filed as an exhibit.
23At the outset of the February 11, 2012 interview, A.S. was told the following:
(i) The statement would be under oath or affirmation;
(ii) She did not have to make the statement and had the right to choose whether to do so or not;
(iii) There were potential consequences if she lied or misled the police while making the statement and she could be liable to criminal prosecution; and
(iv) She might be a witness at trial where her statement could be used against her if she recanted or claimed it was false.
24A.S. indicated that she understood. The following is an accurate summary of the interview prepared by the Crown:
A.S., although nine months pregnant and at times slightly out of breath, appeared calm and relaxed throughout the interview. Her first language is not English, but she communicated with relative ease. DC McGuire was soft-spoken and polite with her from start to finish.
During the first half of the interview, A.S. discussed how she met J.K., and described the progression of their relationship. She described moving into J.K.’s apartment alone, and then having her children move in with them in November 2012.
A.S. described a happy beginning to her relationship with J.K., but explained to DC McGuire that when her children moved in with them, things started to deteriorate. She described controlling and emotionally abusive behaviour by J.K. She then detailed instances of physical abuse from J.K. She also described physical disciplining of her children by J.K., which made her feel uneasy.
Still during the first half of the interview, A.S. told DC McGuire the password for J.K.’s laptop computer, which was kept in the family home: “renagades”. A.S. indicated that she was allowed to use this computer, but that she used it only occasionally.
Approximately 35 minutes into the interview, DC McGuire broached the topic of I.B.’s sexual abuse for the first time. DC McGuire asked her whether she had a “feeling” that anything was going on and if so, when that started. She readily volunteered the following response:
She initially trusted J.K., since he had children of his own and appeared to be a good father
Her own children learned a lot from J.K., and they all had fun together
However, one night, when she and J.K. were talking “dirty”, he mentioned wanting to see I.B.’s “thing.” She asked why. He did not elaborate. She told him that she didn’t want him to see I.B.’s thing
Around February 2013, A.S. had this “feeling”, “like what are you going to do to my daughter”, because he had been talking about it, and it kind of worried her. She and J.K. had fought about it, and she had warned him never to “do that thing he had talked about”
At this point in the interview, DC McGuire asked, “What did he say?” She answered that “he said he wouldn’t promise that he wasn’t going to do that, and that if he did that he wouldn’t tell me.” DC McGuire then asked whether J.K. had specified what he wanted to do. A.S. provided the following answer:
J.K. talked about I.B.’s private thing. She was not really sure what he said he wanted to do. She knew he wanted to do something to I.B. that wasn’t good, so she warned him never to do that
The kids were often alone with him when she was at work, especially on weekends. She had a “feeling” and was not comfortable. She was worried while at work so always called to check up on J.K.
In April 2013, she “caught” him: she had been taking a shower with him and he exited before her. She let the shower run but left the washroom because she could “sense already.” She could not find I.B. and she ‘already had that heartbeat’ so she knocked on the bedroom door. J.K. neglected to open the door right away, so she knew that something was wrong. When he opened the door he still had only a towel around him, and pretended as though nothing was wrong, asking to make love with her. She asked where I.B. was. A.S. was “shaking”, sensing that something was wrong. A.S. found I.B. hiding in the bedroom closet. I.B. did not initially respond when the A.S. asked her what she was doing there. J.K. would not tell her either. A.S. asked I.B. again, at which point I.B. mentioned something about “suck.” A.S. knew this meant “his private thing.” A.S. confronted J.K., who apologized and told A.S. that he loved her
A.S. added that “this was the first time it happened.”
DC McGuire inquired at this point whether it happened another time, to which she replied:
She did not think it happened again because J.K. promised it would not
After going on a trip to the Philippines, the children stayed with their aunt (A.S.’s sister). This was fine with A.S., because she knew they were not safe with her
After J.K. promised he would not do “that” anymore (“the hitting and everything that happened to I.B.”), A.S. decided that the children would come back to live with them again. A.S. knew it was not “right” and that it was not “kinda safe”, but she decided to trust J.K. and to give him a chance to change
When the children returned home, A.S. was “still observing” J.K., in the light of what had happened. She then started to “feel something”, like a mother’s instinct, that there was something wrong. This feeling still bothered her every time she went to work
More recently, because she had stopped working and was home most of the time, A.S. noticed that I.B. would often follow J.K. into various rooms in the apartment, and that they would be silently alone together. This made A.S. suspicious
On Saturday February 8, 2014 (three days prior), A.S. noticed suspicious gesturing by J.K. directed at I.B. I.B. went into the washroom and then came out with J.K.’s cellular phone, handing it to him. A.S. could see that I.B. looked unhappy. A.S. wanted to see what was on that phone, but J.K. refused to let her see it. She knew that something was wrong, and could tell that the video camera application was open
After this happened, A.S. confronted I.B., asking her, “did daddy do that thing again like last time?” I.B. eventually told her “everything”
At this point, for the first time in twenty minutes, DC McGuire interjected, asking what A.S. meant when she said that I.B. told her “everything.” A.S. answered:
I.B. said that “daddy rubbed her thing” while A.S. was taking a nap that day
I.B. said that daddy had later asked her to take a video of her “thing” (privates) in the washroom
A.S. said or thought, “oh my god” and couldn’t believe it
A.S. had trusted him and given him a chance, because they were about to have a baby
DC McGuire asked A.S. if there was anything else, to which she replied:
A.S. asked I.B. when this had happened. I.B. responded that it was when A.S. was at work
I.B. said the sucking thing happened last month, and that that was the last time
I.B. said that J.K. most often rubbed her “thing”
A.S. asked if this happened while J.K.’s own kids were home (J.K.’s children often visited and stayed over). I.B. responded in the affirmative, providing specific details about one instance when J.K. daughter was in another room
I.B. told A.S. that she really did not want to do this, and that J.K. was forcing her
A.S. commented that “she can't do anything because she is just a child”
A.S. described a “plan” she had formulated the next day (Sunday, February 9), explaining that she “couldn’t take this anymore” and “needed to talk to someone about my situation.” A.S. told I.B. that she would be asking for help and disclosing what had happened to her friend and downstairs neighbour, D. I.B. initially objected but eventually agreed.
A.S. told D. everything that she had been “hiding”, then explained “...not hiding but ...it’s been a year I’ve been holding onto this situation”
The following day (Monday, February 10), D. convinced A.S. to take I.B. to the hospital, which she did. D. was the one who decided that J.K. should be arrested
The above information was relayed by A.S. over the course of nearly fifteen minutes without interruption by DC McGuire. Once A.S. had provided this information, DC McGuire left the room for approximately four minutes to consult with her partner, DC Chen. She returned and asked a number of follow-up questions about topics such as her work schedule, the family computer, and pornography sites accessed by J.K.
Before concluding the interview, DC McGuire asked A.S. why she did not go to the police in April 2013, when I.B. first reported that she had sucked on J.K. A.S. answered that it was because she cared for J.K. and about her kids, because she was confused, and because she was “going to plan this thing until it comes to this point”, to determine “if he still can be trusted or not.” When DC McGuire commented that this meant taking a risk, A.S. agreed, adding that “when I knew what happened Saturday, I said this needs to stop; I know it’s hard for me but this needs to stop.” The interview ended at this point, at approximately 6 p.m.
25A.S. was an important potential witness against J.K. She provided information that related to her daughter but also domestic abuse directed towards herself. That was consistent with some of the information provided earlier by I.B. Detective Constable McGuire planned to follow-up on the domestic abuse allegations but her primary focus was on the sexual abuse of I.B. A.S. seemed to fear J.K. but also defended him in part.
26An Agreed Statement of Facts was filed with the following information:
Injuries to I.B.
I.B. was examined by a Sexual Assault Nurse Examiner, Tanya Smith, on February 11, 2014, and then again on February 12, 2014.
The examination revealed that I.B. was missing a segment of her hymen at the 5-7 o’clock position, and that she had a pale line on the wall of her vagina that resembled a scar. Neither of these injuries could be dated, but both were described as “healing” injuries, meaning that they were not particularly recent.
I.B.’s injuries were suggestive of blunt force penetrating trauma to the vagina.
I.B.’s injuries could have caused bleeding and pain in the vaginal area, but not necessarily.
When speaking with Tanya Smith, I.B. denied ever having experienced any vaginal pain, bleeding or discharge.
When speaking with Tanya Smith, A.S. indicated that I.B. had not complained of any vaginal pain or bleeding.
Cellular Phone and Computer Evidence
- There is no issue regarding the continuity of the exhibits analyzed by DC Amy Davey, including:
(a) The red Samsung cellular phone seized from J.K. on February 10, 2014; and
(b) The laptop computer seized from the family residence on February 12, 2014.
J.K.’s Cellular Phone
A number of images of adult pornography were located on J.K.’s cellular phone.
There were twenty unique (i.e. non-duplicate) images of child pornography located on J.K.’s cellular phone. All twenty images appeared to be of I.B. These images can be described as follows:
(a) Six images of a female child on her back, naked, featuring a close-up of her vagina. The child’s face could not be seen.
(b) Five close-ups of a female child’s vagina, four of them being extreme close-ups. The child’s face could not be seen.
(c) Two images of a female child on her knees, naked, featuring a close-up of her vaginal and anal areas. The child’s face could not be seen.
(d) One image of a female child on her knees, naked, featuring a close-up of her vagina. The child’s face could not be seen.
(e) Two images of a female child on her stomach, naked, featuring an extreme close-up of her vagina. The child’s face could not be seen.
(f) Three images of a female child, naked, in a standing position, focused on her lower body, with the outer vaginal area visible. In one of these images, the child’s thighs were spread open. The child’s face could not be seen in two of the images but in one of them, her face was partially visible and appeared to be that of I.B.
(g) One image of a female child standing over the camera, naked from the waist down, with the buttocks and vaginal areas visible. The child’s face could not be seen.
The background in some of these twenty images matched that of the bathroom at the family residence, as observed and photographed by police on February 12, 2014.
The background in the remainder of the twenty images matched that of the bedroom of the family residence, as observed and photographed by police on February 12, 2014. The bed sheets seen in some of the images matched the sheets on the bed in the bedroom, as observed by police.
None of the above twenty images could be dated, nor could their precise provenance be determined.
All twenty of the above images were stored in a program designed to keep photographs “private.”
All twenty of the above images appear to have been deleted by the user.
A number of images of A.S. were located on J.K.’s cellular phone. Three of these images depicted A.S. lying on a bed, with clothes on but with her pregnant belly exposed. The sheets on the bed matched the sheets seen in some of the twenty child pornography images described above, and which were photographed on the bed by police on February 12, 2014.
There were no child pornography videos retrieved from J.K.’s cellular phone.
The laptop seized from the family residence
The laptop was located on a desk in the living/dining room area of unit #904.
A review of the internet activity on the computer revealed the following:
(a) A number of “Google” keyword searches were performed on the computer that related to father-daughter pornography, including “Daddy + Fucks + Daughter”
(b) A number of father-daughter pornography websites and videos were accessed in 2013-2014, including websites and videos with the following titles:
(i) “daddy_fucks_teen_daughter_in_shower”
(ii) “dad-girl home scandal”
(iii) “two daughters vs. one daddy”
(iv) “little porn/ daughter”
(v) “father and daughter first sex”
(vi) “father fuck own daughter”
(vii) “father fucks daughter while her mother not at home”
(viii) “stepdaughter pussy pounded by stepdad”
Much of the above Internet activity was associated with the user “Renegade.”
It is unknown whether the password “Renegade” was needed to access the computer itself, or the profile for the user “Renegade”, or both.
There were no child pornography images or videos found on the laptop computer.
27A.S. did not testify and the defence did not call any evidence.
APPLICABLE PROVISIONS OF THE CRIMINAL CODE
Duty of persons to provide necessaries
s. 215 (1) Every one is under a legal duty
(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years
Offence
(2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies on him, to perform that duty, it
(a) with respect to a duty imposed by paragraph (1)(a) or (b),
(ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently
Criminal negligence
s. 219 (1) - Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
s. 219 (2) - For the purposes of this section, duty means a duty imposed by law.
Causing bodily harm by negligence
s. 221 - Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
Permitting prohibited sexual activity
s. 171 - Every owner, occupier or manager of premises, or any other person who has control of premises or assists in the management or control of premises, who knowingly permits a person under the age of 18 years to resort to or to be in or on the premises for the purpose of engaging in any sexual activity prohibited by this Act is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.
DUTY TO PROVIDE NECESSARIES OF LIFE AND CRIMINAL NEGLIGENCE
28In R. v. Popen (1981), 1981 CanLII 3345 (ON CA), 60 C.C.C. (2d) 232 (Ont. C.A.), at paras. 20 and 23, the court made clear that “necessaries of life” include protection of a child from harm:
We are disposed to think that the words “necessaries of life” in section 197 may be wide enough to include not only food, shelter, care, and medical attention necessary to sustain life, but also necessary protection of a child from harm. It is, however, not necessary to decide that question since, in any event, a parent is under a legal duty at common law to take reasonable steps to protect his or her child from illegal violence used by the other parent or by a third person towards the child which the parent foresees or ought to foresee. In our opinion such parent is criminally liable under the Code for failing to discharge that duty in circumstances which show a wanton or reckless disregard for the child’s safety, where the failure to discharge the legal duty has contributed to the death of the child or has resulted in bodily harm to the child.
A parent may be criminally negligent in permitting a child to remain in an environment where, to the knowledge of the parent, it is subject to brutal treatment by the other parent or a third person with whom the parent is living, and may be convicted of manslaughter where the death of the child has been caused by such brutal treatment: see Palmer v. State of Maryland 164 A 2d 467 (1960); Commonwealth of Pennsylvania v. Howard 402 A 2d 674 (1979); State of South Dakota v. Zobel, 134 N.W. 2d 101 (1965).
29In R. v. F (J.), 2008 SCC 60, [2008] 3 S.C.R. 215, at paras 7-11, the court set out the fault element for failure to provide the necessaries of life and criminal negligence:
The fault element required for conviction at trial was essentially common to both counts of manslaughter. On count 1, the requisite fault element was that of the underlying offence of criminal negligence; on count 2, the requisite fault element was that of failure to provide the necessaries of life. Neither criminal negligence nor failure to provide the necessaries of life requires proof of intention or actual foresight of a prohibited consequence. Under both counts, the jury was required to determine not what the respondent knew or intended, but what he ought to have foreseen.
On the count alleging failure to provide necessaries, the Crown was bound to establish that the respondent’s failure to protect his foster child represented “a marked departure from the conduct of a reasonably prudent parent in circumstances where it was objectively foreseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life, or a risk of permanent endangerment to the health, of the child”: R. v. Naglik, 1993 CanLII 64 (SCC), [1993] 3 S.C.R. 122, at p. 143 (emphasis added). It will later become apparent why I have emphasized the word “risk” in this description of the offence by the Chief Justice, speaking for the Court on this point.
On the count alleging criminal negligence, the Crown was bound to show that the respondent’s very same omission represented a marked and substantial departure (as opposed to a marked departure) from the conduct of a reasonably prudent parent in circumstances where the accused either recognized and ran an obvious and serious risk to the life of his child or, alternatively, gave no thought to that risk: R. v. Tutton, 1989 CanLII 103 (SCC),[1989] 1 S.C.R. 1392, at pp. 1430-31; R. v. Sharp (1984), 1984 CanLII 3487 (ON CA), 12 C.C.C. (3d) 428 (Ont. C.A.).
The difference between a marked departure and a marked and substantial departure has been considered in several appellate decisions since Naglik and Tutton, mainly but not exclusively in the context of driving offences: See, for example, R. v. Willock (2006), 2006 CanLII 20679 (ON CA), 210 C.C.C. (3d) 60 (Ont. C.A.); R. v. L. (J.) (2006), 2006 CanLII 805 (ON CA), 204 C.C.C. (3d) 324 (Ont. C.A.); R. v. Palin (1999), 1999 CanLII 9834 (QC CA), 41 M.V.R. (3d) 11, 135 C.C.C. (3d) 119 (Que. C.A.); R. v. Fortier (1998), 1998 CanLII 12917 (QC CA), 41 M.V.R. (3d) 221, 127 C.C.C. (3d) 217 (Que. C.A.); R. v. Brown (2000), 2000 CanLII 2048 (ON CA), 134 O.A.C. 151; R. v. Baker (2006), 2006 CanLII 19332 (ON CA), 209 C.C.C. (3d) 508 (Ont. C.A.); R. v. E. (A.) (2000), 2000 CanLII 16823 (ON CA), 146 C.C.C. (3d) 449 (Ont. C.A.). This case does not turn on the nature or extent of the difference between the two standards.
A brief comment on this branch of the matter will therefore suffice. If the fault element under both counts was the same — if a marked departure was sufficient in both instances — an acquittal on one and a conviction on the other would be plainly inconsistent because both counts alleged the identical actus reus as well. It is undisputed, however, that criminal negligence, unlike failure to provide the necessaries of life, involves a marked and substantial departure from the norm of a reasonable person. In this light, the verdicts at trial — not guilty of failing to provide necessaries, yet guilty of criminal negligence — are not only inconsistent, but incomprehensible as well. [Emphasis in original].
30In R. v. S.J., 2015 ONCA 97, 124 O.R. (3d) 595, at paras. 48 and 53, the court referred to the legal duties arising out of defined relationships in charges based on s. 215 of the Criminal Code:
Where such a duty arises, a uniform minimum level of care is prescribed. In R. v. Naglik, 1993 CanLII 64 (SCC), [1993] 3 S.C.R. 122 (S.C.C.), at pp. 141-142, Lamer C.J.C. considered the standard of care reflected in s. 215:
The accused’s conduct in a particular circumstance is to be determined on an objective, or community, standard. The concept of a duty indicates a societal minimum which has been established for conduct: as in the law of civil negligence, a duty would be meaningless if every individual defined its content for him or herself according to his or her subjective beliefs and priorities. Therefore, the conduct of the accused should be measured against an objective, societal standard to give effect to the concept of “duty” employed by Parliament.
Section 215 is aimed at establishing a uniform minimum level of care to be provided for those to whom it applies, and this can only be achieved if those under the duty are held to a societal, rather than a personal, standard of conduct. While the section does not purport to prescribe parenting or care-giving techniques, it does serve to set the floor for the provision of necessaries, at the level indicated by, for example, the circumstances described in subs. (2)(a)(ii). The effects of a negligent failure to perform the duty will be as serious as an intentional refusal to perform the duty.
[Emphasis in original.]
As mentioned, Naglik described the applicable standard for finding criminal liability under s. 215 of the Code. The Crown must establish beyond a reasonable doubt that the accused’s actions were a “marked departure” from what a reasonably prudent person would do: Naglik, at pp. 141-143, 148 and Peterson, at para. 35.
ANALYSIS
31The information from nine-year-old I.B. as to when her mother knew of the sexual abuse was unclear. At one stage, I.B. said her mother “knew about it” when I.B. was eight or nine years old. That could have been in 2012. I.B. said her mother “knew something weird was going on”, and that her mother told her she wanted to get more evidence. However, I.B. also said more than once that she did not tell her mother anything specific about the abuse until “the Saturday”, being two days before I.B. was interviewed by police.
32The video statement provided by A.S. on February 11, 2014 includes admissions that she knew the following in the months of February through April 2013:
(1) One evening when A.S. and J.K. were talking “dirty”, J.K. told her he wanted to see I.B.’s “thing.” In context, this refers to I.B.’s vagina. A.S. says she warned J.K. never to “do that thing he talked about.” J.K. said he would not promise he would not do so. More ominously, he said he would not tell her if he did so. This exchange with J.K. should have put A.S. on high alert about the need to protect I.B.
(2) In April 2013, she “caught him.” A.S. emerged from the shower and could not find I.B. The bedroom door was locked. She knocked and J.K. did not open it right away. A.S. knew something was wrong. J.K. finally opened the door and wore only a towel around himself. He asked A.S. to make love with him. A.S. asked where I.B. was. She found I.B. hiding in the bedroom closet. Neither J.K. or I.B. would say why she was in there. A.S. asked I.B. again. I.B. mentioned something about “suck.” A.S. knew this meant “his private thing.” A.S. confronted J.K. who apologized and said he loved her. A.S. referred to this as “the first time it happened.”
(3) On February 8, 2014 (three days before the interview), A.S. was suspicious when she saw J.K. make a gesture towards I.B. I.B. then went into the bathroom and came out with J.K.’s cell phone. I.B. then handed the phone to J.K. A.S. wanted to see what image was on the phone but J.K. refused. A.S. later confronted I.B. and asked “did daddy do that thing again like the last time” (underline added). I.B. then told her “everything.” I.B. told A.S. that J.K. “rubbed her thing” that day while A.S. took a nap. She also told A.S. that J.K. had told her to take a video of her “thing” in the washroom. The reference was to her vagina. I.B. also described further sexual conduct by J.K. towards her. I.B. told her mother she did not want to do these things but felt forced to do so.
33In February 2013, J.K. told A.S. in rather explicit terms that he wanted to interact with her daughter for his sexual gratification. A.S. told him not to do so. J.K. said he would not promise not to do so. More ominously, he said he would not tell her if he did so. This exchange with J.K. should have put A.S. on high alert about the need to protect I.B.
34In April 2013, A.S. observed events and received information from both J.K. and I.B. that he was abusing I.B. in a sexual manner. This included having I.B. take photos of her private parts on J.K.’s cell phone. I.B. actually disclosed to A.S. that she had performed oral sex on J.K. When A.S. confronted J.K. he apologized.
35Thus, by April 2013, A.S. had clear knowledge of J.K.’s sordid intentions toward I.B. and that he had abused I.B. sexually in various ways. A.S. acknowledged at the end of her interview on February 11, 2014 that her failure to go to the police in April 2013 put I.B. at risk. A.S. explained that she chose not to report the sexual abuse because she cared for J.K. and was confused. She had options. She made a choice.
36There is no dispute that J.K. sexually abused and exploited I.B. in the family residence from and including September 2013 through early February 2014. The evidence of I.B. and what A.S. told the police confirms that the sexual abuse of I.B. had gone on for several months before September 2013. The sexual abuse and exploitation of I.B. caused her bodily harm as well as psychological harm. A.S. clearly knew that I.B. was in clear and present danger of ongoing sexual abuse for almost a year before the police and the CAS were contacted in early February 2014.
37I.B. was subjected to severe sexual assaults and degrading conduct. The latter included photos of her private parts for the sexual gratification of J.K. She was a child. She was frightened.
38A.S. knew what was happening by February and April of 2013. A.S. had a legal duty to protect I.B. from such harm.
39Section 215(2)(a)(ii) refers to the failure to perform a duty that “causes or is likely to cause the health of that person to be endangered permanently”. This court does not require expert testimony to reasonably infer that this protracted course of sexual and emotional abuse of an eight-year-old child by her step-father would cause that child long-term trauma. The added layer of harm in this case is that I.B. knew that her mother was aware of the abuse and did not take steps to protect her. The Crown is not obliged to prove that the conduct was a threat to I.B.’s life. The requirement of permanence does not mean forever. That would be impossible to prove and that cannot be what the Crown is required to prove.
40At various parts in her interview of February 11, 2014, A.S. referred to having “a feeling” or “mother’s instinct” that something bad was going on between J.K. and her daughter. If that was the extent of her knowledge, she would not be guilty of the crimes alleged. However, that is not the case. A.S. had specific knowledge and information from J.K., I.B. and events she actually observed that I.B. had been sexually abused and was in grave danger of further, even escalating abuse.
41In the words of the Supreme Court in F.(J.), I find that the conduct and failure of A.S. to protect her child between February 2013 and February 2014 represented both a marked and substantial departure from the conduct of a reasonably prudent parent in the circumstances. She had to know that her failure to protect I.B. put I.B. at an obvious and serious risk for her immediate and long-term health.
RESULT
42I am satisfied beyond a reasonable doubt that the Crown has proven counts one and two, being the failure to provide the necessaries of life and criminal negligence causing bodily harm. There will be findings of guilt on both of those counts.
43Count three on the indictment alleges an offence contrary to s. 171(a) of the Criminal Code. The essential elements that must be proven by the Crown on that count include the following:
(1) That within the stipulated time periods, A.S. had control of the named address; and
(2) She knowingly permitted a person under the age of 16 years to be in or on the said premises for the purpose of engaging in any sexual activity prohibited by the Criminal Code. [Emphasis added].
44The Crown’s position on counts one and two is that A.S. exposed I.B. to further sexual abuse and failed to protect her after she knew that J.K. had sexually assaulted I.B. in April 2013. The Crown does not allege and has not proven that A.S. knowingly permitted I.B. to be in the premises for the purpose of engaging in sexual activity. In final submissions, the Crown did not strenuously seek a conviction on this count. A.S. is found not guilty on count three.
45I am grateful to both counsel for the thorough and sensitive way they presented and defended this tragic case.
B. P. O’Marra, J.
Released: May 13, 2016
CITATION: R. v. A.S., 2016 ONSC 3032
COURT FILE NO.: CR-16-10000139-0000
DATE: 20160513
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Applicant
– and –
A.S.
Defendant
REASONS FOR JUDGMENT
B. P. O’Marra, J.
Released: May 13, 2016