ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-SA5087 (Ottawa)
DATE: 2016/11/15
BETWEEN:
HER MAJESTY THE QUEEN
– and –
R.P.
J. Bocking, for the Crown
R. Sellar, and J. Legault, for the Defense
HEARD: September 26th to September 30th, 2016 and October 3rd to October 7th, 2016
REASONS FOR JUDGMENT
PELLETIER, R.
Introduction
[1] R.P. is charged with a series of offenses of a sexual nature, alleged to have been committed against his 2 nieces in the late 1970’s and early to mid-1980’s. He has pleaded not guilty.
[2] At trial, the complainants, M.T.1 and I.S., were called by the prosecution as was I.S.’s sister M.S..
[3] The defense elected to call evidence at the close of the Crown’s case. R.P. testified, as did his spouse S.S., as well as two of the couple’s three children, L.P. and P.P..
[4] The defense evidence consisted largely of a categorical denial of any wrongdoing by R.P., and evidence called to corroborate certain circumstances which, in the defense’s view, contradicted various accounts of the overall circumstances as described by the complainants.
ANALYTICAL FRAMEWORK
[5] In any criminal proceeding, the person charged is presumed innocent unless the prosecution meets its burden of proof of guilt beyond a reasonable doubt. Proof to a degree of absolute certainty is not required, very few facts being provable beyond all doubt. Proof beyond a reasonable doubt requires a degree of certainty which exceeds possible guilt or even probable guilt. As judges instruct juries in criminal proceedings before a jury, they must be sure that the offenses were committed.
[6] In determining the facts in any case, a careful examination of the witness’ evidence is necessary to determine the extent to which a particular witness is credible and reliable. These are two very different considerations.
[7] Honest witnesses, therefore credible witnesses, can be honestly mistaken, therefore not reliable. The assessment of a witness’ credibility and reliability is conducted by resorting to common sense and common experience. Among the considerations are whether a witness is consistent in describing the events, within certain reasonable limits, whether the witness was responsive and forthcoming in answering questions, whether the witness has a personal interest in the outcome of the trial, whether the witness was properly situated in observing the events described, and most importantly, whether the evidence given withstands the scrutiny of basic common sense.
[8] On the issue of whether the evidence makes sense, the court must caution itself against standards that are too rigid or too objective. An event or set of circumstances as described by a witness may seem unlikely, and yet be quite possible. That said, the more unlikely an event, the less likely it can reasonably be found to have occurred.
[9] A single portion of the entire evidentiary record is seldom determinative. Again, just as juries are instructed to do, a judge sitting in a trial without jury must consider all of the testimony, the exhibits filed and the submissions of counsel in determining whether it can be concluded that the person charged has committed the offense, or offenses.
[10] I hasten to add that the demeanour or appearance of a witness while testifying is of little evidentiary value, because of its highly subjective nature. The courtroom is, for most people, an unfamiliar and somewhat daunting environment.
[11] Some witnesses are more comfortable than others in giving evidence. Some are more easily distracted by nervousness or self-consciousness. Some people naturally hesitate when they speak, others may seem somewhat brash in their delivery. These characteristics are, and must be, of little consequence.
[12] On the issue of how testimony is delivered and how it is to be assessed, the hallmarks are consistency, reasonableness and responsiveness.
[13] In criminal cases involving allegations of misconduct dating back several years, or as in this case, several decades, a certain allowance is made in the assessment of credibility and reliability given the passage of time. Details can be lost over time as memory fades and perception changes.
[14] Generally, witnesses testifying in relation to events alleged to have occurred during their childhood years are given some latitude owing to the different perception that children may have compared witnesses recalling adult memories. This, however, does not lower the standard of proof, which remains, regardless of the age of the witnesses or the date of the alleged offenses, proof beyond a reasonable doubt.
[15] Finally, where persons charged elect to call evidence and to give evidence themselves, the Court must engage in a three-step analysis of the impact of that evidence.
[16] Clearly, if the person charged is believed in their denial of wrongdoing, there must, at the very least exist a reasonable doubt as to their guilt, and an acquittal must be entered. Secondly, even if the evidence of the person charged is largely rejected, the court must determine whether the residual effect, together with the entire evidentiary record, including the evidence of other defense witnesses, raises a reasonable doubt, in which case, the person charged must again be found not guilty. If, however, the court rejects the evidence of the person charged, and the remaining evidence, as accepted, establishes the guilt of the person charged, then a finding of guilt must follow.
THE PROSECUTION’S CASE
[17] Three witnesses were presented by the Crown, beginning with I.S.. I.S.’s father, C.E., is the brother of R.P.’s spouse S.S.. The very helpful family tree of the S.-P. family was filed as an exhibit.
[18] I.S. was born […], 1968. Her family moved from St-Jean-Sur- Richelieu to Ottawa in the summer of 1981, just prior to her 13th birthday. As did other family members, I.S. and her family were frequent guests at the P.s residence on C[…] Street in the Beacon Hill district of Ottawa.
[19] The P.s were described by all witnesses as very generous and gracious hosts. They occupied a split level single family home and had the neighbourhood’s first in-ground swimming pool, installed in the fall of 1976. The P.s had lived at this location since September 1971. Mr. and S.S. still live in this home.
[20] I.S. described the events which give rise to count # 6 on the indictment, sexual assault between May 1, 1984 and December 31, 1984 contrary to section 246.1 of the Criminal Code as it existed at the time.
[21] Her evidence was that in the late fall of 1983 or early winter of 1984, when she was 15 years old, she had occasion to attend a family function at The P.s residence, in the company of her good friend Sa.. I.S. had by then moved to Montreal and had been visiting in Ottawa.
[22] During this gathering, I.S. testified that R.P. served her two rum and coke mixed drinks, with a slight possibility of having been served a third drink. She described the effects of the alcohol as quite noticeable at first, but declining as the evening wore on. Her evidence is that she stayed the night, settling into one of the 3 bedrooms on the upper floor of the P.’s split-level home. This room had previously been her cousin G.’s bedroom, the youngest of R.P.’s sons.
[23] The evidence of P.P. revealed that the door was changed to an accordion folding door some time earlier as the boys, P.P. and his brother G., had damaged the original door during a bout of horseplay.
[24] The room in question is situated to the right at the top of the stairs leading to the upper floor. A second room is situated in the middle, with the master bedroom to the left as one arrives on the upper floor landing. The rooms, as depicted in photograph exhibits, are within very close proximity to one another. An upstairs bathroom is situated further to the left of the master bedroom.
[25] Having turned in for the evening, I.S. describes how her uncle, R.P. entered her room on two separate occasion, each time reaching under her body, as she lay on her stomach, in order to touch her genital area, both above and under her pyjamas.
[26] I.S. testified that she was quite startled on the first occasion and remained quiet but tried to push her uncle’s hand away. Her evidence was that she didn’t know quite how to deal with the situation but did manage to fall back to sleep. She further testified that R.P. entered the room a second time, was more forceful and touched her again despite her physical and verbal protests. I.S. states that she was quite afraid and left the next morning without mentioning the event to anyone.
[27] In addition to this description of the events which relate to count 6 on the indictment, I.S. was questioned at trial concerning other events not reflected in any specific charges, but elicited by the Crown nonetheless to set out the full chronology of events and the relationship between I.S. and R.P..
[28] I.S. described three specific incidents involving R.P. exposing himself to her. Firstly, she testified that on one occasion in the summer of 1981, as she sat by herself in the swimming pool area, R.P. removed his bathing trunks and placed a towel around himself, all of this in plain view of I.S. who had been sitting some 20 to 30 feet away. She stated that his made her feel uncomfortable but that she had no other particular reaction.
[29] She further testified that later that summer, as she sat in the basement’s den, alone, watching television, R.P. entered the room wearing his swimming trunks, made his way to the downstairs powder room, emerged from the room wearing a towel around his waist, caused the towel to drop and stated, "Oops, how did that happen?", exposing himself to her. R.P. is then said to have picked up the towel quickly, and to have left the room. I.S. again attributed this to possible clumsiness however, this episode and the swimming pool incident caused her to begin to have certain doubts.
[30] Finally, I.S. described a more graphic incident, again in the summer of 1981 whereby her uncle entered the basement where she had been seated alone, went to his office also located in the basement and emerged naked and in a state of erection. Her evidence is that R.P. asked her what she was watching on television. She states he then left the room in that condition. I.S. stated that it was around this time that she stopped going to the P. residence as often.
[31] There is one final incident of a somewhat peculiar nature described by I.S.. As with the three episodes of alleged exposure by R.P., this final incident does not relate to any specific charge on the indictment.
[32] I.S. testified that at the age of 14 or 15 she visited Ottawa, as she was by then living in Montreal, and on a particular Sunday found herself at the office which her father rented to conduct business in Ottawa. She describes it as a Brownstone somewhere in the downtown area.
[33] She stated that as she waited alone for her father to return to the office, she discovered that someone was at the door. It was, according to I.S., her uncle, R.P.. She described how R.P. claimed to be dropping by just to say hello. She wondered how he knew she was there. I.S. testified that R.P. produced a bottle of wine, Baby Duck specifically, and two plastic cups, that he poured them each a glass and sat next to her on a sofa in the office, making attempts at holding or touching her. She stated that this made her feel uncomfortable and that her father entered at that precise moment, that he was angry however remained calm, that R.P. tried to make small talk or casual conversation before leaving and that I.S.’s father asked her, angrily, what R.P. had been doing there, to which I.S. could offer no explanation.
[34] This, by and large, summarizes the evidence of I.S. in her examination in-chief. I will consider the cross examination of this witness and all others in my analysis of the testimony later in these reasons for judgment.
[35] One final observation concerning I.S.’s evidence in-chief is that she chose to report the allegations of abuse and inappropriate conduct by her uncle upon being informed that her cousin, M.T.1 had come forward with a complaint and had met with investigators. I.S. testified that she resented that her name was brought up during the investigation, that she regretted having come forward considering the harm and loss visited upon others and that she had nothing to gain by disclosing the abuse she states that she suffered except to support her cousin and possibly help others.
[36] I.S. testified that while the details of their individual experiences were never discussed, M.T.1 did say to her that she had been raped repeatedly by R.P.. This revelation was cited by I.S. as an important factor in her decision to come forward.
[37] The Crown presented, as its second witness, I.S.’s older sister M.S.. M.S. was born […], 1957. She is not named as a complainant in any of the charges and would appear to have been called to corroborate R.P.’s indiscretions towards his nieces generally.
[38] She confirms that the P. residence in the 1970’s and 1980’s was a place of frequent and generally joyous family gatherings. She confirms S.S.’s remarkable social skills and commitment to ensuring that every visitor was well treated and provided for. She described their home as Disneyland for kids, they ate well, had fun, and could watch cable TV.
[39] Her evidence is that her family lived out of town and that she visited her grandparents in Ottawa in the summer and would sometimes spend up to a week, as a special privilege, with her aunt and uncle, The P.s. M.S. related two incidents of exposure by R.P., on consecutive nights, as she had been bathing. She states that she was 12 or 13 years old, therefore in 1969 or 1970.
[40] On both occasions, in the upstairs bathroom, which consisted of two smaller connecting rooms, the first with a sink only, the second with a toilet and bathtub, M.S. testified that as she was in the bathtub, R.P. entered the room wearing only a towel around his waist, dropped the towel, said words to the effect of "Oh, I’m sorry", and then left the room.
[41] M.S. testified that during the second episode, she had kept her underwear on in the bathtub because of the first incident and also because, according to her evidence, the door to the toilet/bathtub portion did not have a functional lock.
[42] As with her younger sister I.S., M.T.2 gave evidence that her reluctant decision to come forward was the result of the M.T.1 disclosure and a sense that she had perhaps contributed to the events involving both M.T.1 and I.S. in not reporting the events involving herself earlier.
[43] The final Crown witness was M.T.1, the complainant named in counts 1 to 5 in the indictment, covering charges of indecent assault on a female person and the subsequent parallel offense of sexual assault, as well as a charge of confinement and gross indecency.
[44] M.T.1 was born […], 1972. Her mother M.T.2 is the sister of S.S.
[45] M.T.1’s evidence can be broken down into three segments: firstly what she described as “the show”, occasions where R.P. exposed himself to her; the swimming lessons, during which R.P. is alleged to have touched and digitally penetrated her vagina; and finally, an incident involving the use of some force as she was held against a closed door and fondled in the chest and genital area.
[46] In relation to the first segment of M.T.1’s testimony in examination in-chief, she described how R.P. regularly and somewhat systematically exposed his genitals to her. These events involved R.P. changing from his bathing suit to a small wraparound towel, in the area of the swimming pool. M.T.1 described how R.P. would do so when the two were alone, occasionally during times when her mother and S.S. would leave the home to go shop for food in order to entertain the guests, typically on Saturdays at a time when M.T.1 was approximately 7 years old, in 1979. The T. family lived in Chelsea Quebec, north of Ottawa, and were frequent guests, along with a multitude of other family members at the P. home. M.T.1 also explained how R.P. would crouch in front of her, exposing himself from under the small towel. M.T.1 also testified that R.P. would expose himself in the swimming pool, often in the presence of others, by allowing his genitals to protrude from under his swimming trunks. Similarly, M.T.2. gave evidence that R.P. would expose himself as she was encouraged to open her eyes under water to count the fingers he was displaying or when she would swim laps in the pool in the direction of R.P.. She stated he would allow his genitals to be visible while seated at the table in the yard and that he often changed out of his bathing suit in plain view in the kitchen. M.T.1 stated that these episodes made her feel uncomfortable but that she did not comment upon it to others. She testified that she resented her mother’s decision to occasionally leave her alone with R.P., on those occasions when her mother and S.S. would leave on errands.
[47] The second segment of M.T.1’s testimony deals with allegations that on a number of occasions, in the presence of other guests including her mother and aunt S.S., R.P. would touch her genitals and digitally penetrate her vagina during swimming lessons. It is common ground that at the age of 7, M.T.1 was shown how to swim as R.P. supported her body horizontally as she practiced swimming laps across the shallow end of the swimming pool.
[48] Her evidence is that this happened repeatedly in the summer of 1979. She described how the contacts were painful. Her evidence was that she did not react physically or verbally, but rather simply endured the episodes.
[49] Finally, M.T.1 related an incident in the home. At a slightly older age, once she had begun to mature physically M.T.1 testified that she found herself in R.P.’s home office in the basement. She stated that she had entered the house to use the bathroom and that R.P. invited her into his office, by stating “viens ici, je veux te montrer quelque chose”. Her evidence is that R.P. closed the door behind her and pressed his body against hers as she faced the door and as he stood behind her. M.T.1 stated that R.P. said to her “T’es belle, calme toi, relax” as he touched her breasts and genital area under her bathing suit. She testified that she managed to leave the room and made her way upstairs to the kitchen, as did R.P., where he offered her a coke.
[50] M.T.1 testified that this incident scared her, and she began to look for excuses not to return to the P. residence, taking several babysitting and restaurant jobs to be unavailable to accompany her mother and brother on visits to her aunt and uncle’s house. She stated that she would stop eating at times hoping not to awaken in the morning. Her evidence was that she was afraid of her father’s reaction and so chose not to disclose the incidents.
[51] She attributes her more recent disclosure to her sense of duty towards her own daughter. Her disclosure was first in general terms to her parents who encouraged her to report the incidents to the police.
[52] One final incident was described by M.T.1. This was only raised in her cross-examination. There are no charges relating to this incident. M.T.1 was directed to a portion of her evidence at the preliminary inquiry during which she described receiving a telephone call from R.P. at a time when she was 14 or 15 years old. She wasn’t expecting the call. She felt it was awkward. R.P. is said to have complimented her on her looks. M.T.1 testified that she believed R.P. may have been masturbating during the conversation. She disagreed with the suggestion that her mother may have in fact called The P.s in order to enlist R.P.’s services in speaking with her, possibly as a father figure, in order to determine why she didn’t seem happy but rather seemed morose. Her evidence was that this was not the tenor of the conversation which left her suspicious and concerned. This is the essence of the evidence called by the Crown.
THE DEFENSE EVIDENCE
[53] As I’ve stated previously, the defense elected to call evidence at the close of the Crown’s case, presenting R.P., S.S. and 2 of their 3 children, L.P., and P.P.. My initial examination of their evidence will deal with their testimony in-chief. As with the Crown witnesses, their cross-examination and its impact will be examined in the analysis of the evidence as a whole.
[54] The defense evidence can be said to serve three purposes. Firstly, R.P.’s categoric denial of any misconduct on his part, secondly the establishment of facts and circumstances which would tend to directly contradict important aspects of the Crown’s case and thirdly an exploration of the sheer unlikelihood of the events as described by the Crown witnesses, having regard, in large measure to the openly visible nature to all in attendance at various times of the impugned conduct.
[55] R.P. is 85 years old, has been married to his spouse S.S. for 58 years and has lived in the same home in Beacon Hill since the fall of 1971. He has a military background and worked in the insurance industry for 30 years following his retirement from the armed forces. His three children, L.P., P.P. and G. were born in 1959, 1962 and 1964 respectively. There is general agreement by all witnesses that the P. residence in the decade that followed the installation of the swimming pool in 1976 was, as one witness called it, party central.
[56] R.P. however adds certain features to this state of affairs which are important to his defense. Firstly, and unequivocally, R.P. stressed that he did not consider himself a babysitter or a lifeguard and that underage children had to be, without exception accompanied by a parent if they were to use the pool. Secondly, R.P. describes the pool area as open and visible to neighbours, particularly in the early years of the pool’s installation as the hedge planted around the property line did not mature into the usual desired height for some years. This evidence was introduced, evidently, in order to demonstrate the obvious line of sight most neighbours had, for a number of years into the P.’s yard. Further, R.P., stipulates that both he and his wife worked during the week, away from the home, during the relevant years, and that his spouse’s work had her occupied for roughly one half of the Saturdays. In R.P.’s view, the vast majority of the well-attended week-end visits were held on Sundays, during the afternoon with guests regularly having some dinner with The P.s and leaving in the early evening. R.P. further stipulated that his spouse did not leave the residence once the guests arrived. His evidence was that groceries were usually bought on Thursday or Friday evenings, that there was always plenty of food, drinks and snacks on hand for guests, and that with the Sunday closing laws in effect at the time, shopping for groceries on Sunday would not have been possible.
[57] R.P. described himself as a private person and as someone having more affinity for the adult guests, commenting frequently that there was very little that he would have to say to his nephews and nieces with the exception of the usual greetings and general inquiries. R.P. stated emphatically that he did not serve alcohol to underage children, including his own.
[58] Two specific incidents related by the Crown witnesses I.S. and M.T.1 were commented upon by R.P., giving those episodes a vastly different significance.
[59] Firstly, R.P. agreed that he did attend the downtown office of his brother in law to provide transportation to I.S. to the bus terminal, at the request of I.S.’s father. The occurrence is not denied but rather described quite differently. R.P. denies having entered the building or having brought wine with him. His evidence is rather that he simply did as G.S., I.S.’s father had asked. R.P. testified that he was fond of G.S. and found that conversation came quite easily with him.
[60] In addition, R.P. does not deny having spoken with M.T.1, on the telephone, at some point during her early adolescence. His evidence is rather that at the request of M.T.1’s mother M., R.P., in the company of his spouse called M.T.1 to see how she was doing and to possibly offer some support if she was having difficulties at school or otherwise. R.P. stated that he did so somewhat reluctantly, not knowing how he would approach the task, and needed to be prompted by his spouse. He testified that the entire exchange was brief and rather awkward. He explained that he had a difficult time understanding why he was being asked to be the father figure rather than M.T.1’s own father, P.P.. R.P. described the relationship with P.P. as somewhat strained given that Mr. T. was usually less inclined to attend with other family members at various gatherings.
[61] In sum, R.P.’s evidence accords with the evidence of all other witnesses on the general themes. He categorically denies however any inappropriate contacts or conduct and stresses the very unlikely nature of the impugned actions given the presence of others, the open and visible areas described and the general rule involving children being supervised by their parents.
[62] Without necessarily reviewing the entirety of S.S.’s evidence, it is sufficient to state that her testimony confirms the majority of R.P.’s observations concerning the household routines and rules, the frequency and timing of most family gatherings and the events surrounding the call placed to M.T.1, at the request of M.T.1’s mother, as well as the ride R.P. provided to I.S.. S.S. added to the description of those two events by stating firstly that she had a conversation with her sister, M.T.1’s mother, the day after she and her husband had been involved in the phone call with M.T.1 to report that nothing of any significance had been revealed and secondly, that I.S.’s father G.S. had thanked R.P. for giving I.S. a ride to the bus station at some subsequent point.
[63] S.S. confirmed the private nature of her husband and stated quite emphatically that she had observed nothing peculiar in his conduct towards his nieces or anyone else, and would not have tolerated it had she had any reason to suspect otherwise. On the specific issue of the swimming lessons given to M.T.1 by her husband, S.S. confirmed that she had been present with M.T.1’s mother and her own mother M.T.2, as she was known, and that others may have been present as well. She testified that she neither saw nor heard anything which would cause her to believe that M.T.1 was in any way being abused on those occasions. S.S. also specifically denied having left the home at any time while guest were present, stating that she was always ready to receive and feed guests once they had arrived.
[64] R.P.’s daughter L.P. testified and confirmed, by and large, the defense evidence concerning the routine and rules at the home. Her evidence was that she had heard rumors within the family that her father may have abused certain nieces. She spoke with I.S. prior to any charges being laid and was told by I.S. that M.T.1 had specifically said to her that she had been raped over a 5 year period by R.P.. This witness stated that she had similarly been present during the swimming lessons given to M.T.1 by her father and stated, as had her mother S.S., that there did not appear to be anything unusual about how the lessons were given.
[65] Finally, R.P.’s son P.P. gave evidence consistent with the other family members. P.P. stressed the very regimental nature of his father in relation to responsible adults watching over their children in the pool, and the absence of any alcohol served to minors. P.P. also confirmed his father’s private nature. As had other family members, this witness did not recall his father wearing a small towel around his mid-section around the pool area.
[66] Summarizing the defense evidence, the general description of the activity at the P.’s residence was confirmed. Their home was a gathering place for family and friends, well attended and well catered by S.S.. People would come and go, particularly the children’s friends from the neighborhood. Young children were not left unattended and had to be supervised by at least one parent. R.P. was a private person who appeared more in his element in the presence of the adults than the children.
ANALYSIS
[67] In their examinations in-chief, the Crown witnesses appeared sincere and were quite responsive to the questions asked of them both in examination in-chief and cross-examination. On the surface, their credibility does not significantly come into doubt. There are no obvious reasons for these witnesses to fabricate a complaint. There is evidence of disclosure made in general terms prior to the investigation. There is however one irreconcilable difference in the evidence of M.T.1 and I.S.. M.S. leaves no doubt that in the early stage of the investigation, M.T.1 reported to her having been raped by R.P.. It is safe to conclude that these witnesses spoke to each other in French and that the word “viol” or “violé” was used by M.T.1 to describe R.P.’s actions. M.T.1 categorically denies having used this expression in her conversation with I.S.. The common translation of “viol” into English is “rape”, denoting actual forced intercourse. There are no such allegations being made against R.P.. This contradiction between what I.S. related having been told by M.T.1 and M.T.1’s denial of same affects their credibility. One would think that M.T.1 would be best situated to specify the words she used in describing the abuse to her cousin I.S..
[68] On the other hand, I.S. testified that upon hearing from M.T.1 that she had been raped, she decided to come forth with her own account of abuse at her uncle’s hands. It is not possible to determine to any degree of certainty which witness is correct. This contradiction relates to the very essence of this case. It is not a contradiction on a secondary issue such as frequency of visits or persons in attendance. It relates to the very substance of the present charges. This alone must cause the Court to pause in its assessment of the credibility and reliability of the Crown’s case. The contradiction was in fact evident in the testimony in-chief.
[69] In his very able submissions, Crown counsel attributed the contradiction to a possible misapprehension on I.S.’s part.
[70] I am not persuaded by this argument. The statement was made directly by M.T.1 to I.S., a person of obvious intelligence who would not easily confuse “violé” for any other reference. The question remains how to reconcile M.T.1’s comment, if made, with what she describes at trial, or how to reconcile I.S.’s recollection on what she was told by M.T.1 if no reference to “violé” , “raped”, was made. The evidence of the two principal Crown witnesses also has to be examined in light of the defense evidence, to the extent that it is accepted by the Court.
[71] Having observed the defense witnesses carefully, I have concluded that their evidence was given in a spontaneous and responsive manner. R.P. was particularly assertive in his testimony. He did not contradict himself, nor did he provide evidence which by its very nature raised doubts as to its reasonableness. S.S. was similarly responsive in her examination in-chief and cross-examination. Though less assertive than R.P., S.S. clearly expressed her disagreement with any suggestion that she had tailored her testimony to accord with her husband’s account of the various incidents and the circumstances generally.
[72] The defense evidence generally confirms a number of important facts. I accept that, as a most gracious and attentive host, S.S. did not leave any guests behind in order to shop for items which may have been missing. The Crown witnesses themselves describe S.S. as leaving nothing to chance when it came to hosting a gathering at the P.’s residence. This evidence comes into conflict with the testimony of M.T.1 in relation to the opportunities which R.P. may have had to expose himself.
[73] The defense evidence also establishes fairly clearly that as a private person, R.P. was not given to exposing himself in his yard or walking about the house while undressed and in a state of erection. This conclusion also accords with common sense.
[74] In addition, I accept the evidence of S.S. that her sister M., M.T.1’s mother, called her in a somewhat desperate state asking that R.P. intervene as a responsible male figure in order to offer guidance or assistance to M.T.1. I have no doubts that the phone call to M.T.1 actually occurred. I can also well imagine M.T.1’s startled reaction at discovering that, for no reason apparent to her, her somewhat reserved uncle was calling her to simply find out how she was getting along. I find the explanation and the details given by Mr. and S.S. quite plausible and entirely sensible in the circumstances.
[75] I would also conclude that the weight of the evidence demonstrates that R.P. was a person for whom rules, routine and discipline was important. The defense evidence is that children were not to be left unattended by their parents, that alcohol was not served to minors and that a certain routine governed how the visits took place.
[76] Further, I must say I found quite compelling S.S.’s evidence that I.S. was not an overnight guest at their home until her adult years. S.S. described a certain unexpected visit from I.S., in the company of her friend Sa., when they were young teenagers. Her evidence was rather understated in its description of the event. She said however that the girls seemed “tipsy” to use her word, that they were on their way to a friend’s house, happened to drop by late one afternoon, were served a light snack or meal in the living room and were on their way. This was S.S.’s only recollection of I.S. in the company of her friend Sa., who most witnesses described as not necessarily the best influence on I.S..
[77] The description of this event, the detail revealed, and S.S. obvious effort in not unnecessarily criticizing I.S. or her friend had a certain ring of truth. If indeed this was the only occasion when I.S. attended the P. residence in the company of her friend Sa., this evidence comes into direct conflict with the description of the event described by I.S. during which she and her friend Sa. drank alcohol at the P.’s residence, after which she states that R.P. sexually assaulted her in one of the upstairs bedrooms.
[78] If the Court cannot reject S.S.’s account, it cannot hold, as truthful beyond a reasonable doubt, I.S.’s account.
[79] In the same vein, it is not impossible that an individual would enter another person’s room during the night in order to carry out a sexual assault while others were in the house. Events of this type are the subject of testimony in many sexual assault trials.
[80] In the context of this specific case, the Court has to consider the relative unlikelihood of such an event in circumstances where the three bedrooms in the P. residence were adjacent to each other, that the room where the event is alleged to have occurred did not have a regular functioning door, that S.S. was described as a light sleeper aware of her husband’s movements during the night and that any reaction, physical or verbal by I.S. would likely have required R.P. to explain his presence, on two separate occasions, during the night, in the room occupied by his niece. I stress that the unlikely is not necessarily the impossible. Events which are however of such an unlikely nature must be examined carefully in determining their actual occurrence.
[81] Only when an event is factually impossible, in strictly objective terms, can it be dismissed as not having occurred. There is however a spectrum which renders very unlikely events less probable than events more likely to have occurred. As described, this incident is closer to the improbable end of that spectrum.
[82] The principal attack upon the credibility of the defense witnesses by the prosecution was that the evidence appeared contrived in its similarity of detail and use of nearly identical language. Examples cited by the Crown attorney were the use of the expression “ crystal clear”, in describing the condition of the pool water, or the “sandwich” method of swimming lessons, whereby R.P. supported M.T.1 with one hand on the waist and one on the back as M.T.1 paddled horizontally in the shallow end of the pool.
[83] Another area of the evidence which the prosecution highlighted as suspiciously similar was the description of the three-way conversation held over the phone with M.T.1 as S.S. prompted her husband on what to say.
[84] I agree that witnesses who employ identical descriptions of the same events, at the time relatively insignificant, and do so several years later, must be examined carefully and the Court has done so.
[85] I am unable to conclude that the similarities in the testimony of the defense witnesses raise such concerns. The expressions used by the witnesses are not so peculiar as to require closer scrutiny. For instance, “crystal clear” water is an expression which automatically comes to mind in describing water that has no contaminants or impurities. It must also be borne in mind that the defense witnesses are part of the same family where familiar jargon will always exist. In relation to the peculiarity of recalling in detail certain events which were unremarkable at the time, it is a matter of record that the witnesses for the defense were instructed by their counsel to review the statements made by both complainants in order to be familiar with the precise nature of the allegations made against R.P.. It would not, in those circumstances, be surprising that the witnesses could recall such events as the swimming lessons given to M.T.1 by R.P. or whether in fact I.S. was ever an overnight guest at The P.s during her adolescent years.
[86] The defense witnesses had been alerted to the specific allegations and were therefore able to reflect back on those precise issues. The evidence is also that the defense witnesses had been specifically instructed not to discuss their recollections of the events or their anticipated testimony. There is no evidence or reasonable inference available from the evidence that they did indeed discuss their testimony. The Crown is quite correct in pointing out the issue of bias. Close family members can reasonably be expected to provide testimony which is favourable to the person charged. That does not however render the evidence of those witnesses unreliable per se. The entire testimony, measured against the evidentiary record generally, and examined objectively reveals whether the natural bias of any witness renders their testimony suspect or less worthy of belief.
[87] I have considered the Crown’s submissions regarding the value of the testimony of the defense witnesses, principally R.P.’s evidence, and I am unable to conclude that it must be rejected.
[88] The general acceptance of the defense evidence should be determinative of whether the Crown has proven the charges beyond a reasonable doubt.
[89] In this particular case, the analysis goes one step further in relation to the relative improbability of certain events as described by the complainants. The improbability of certain events taking place as described is relevant, but in no way determinative. Strange things do happen. Events which seem unlikely to have occurred may still quite possibly have taken place. People do not always act rationally. People take chances. That said, I am quite influenced by the relative improbability of the abuse described by M.T.1 during the swimming lessons. By all accounts, the lessons were conducted in normal daylight hours, within a matter of meters from observers including M.T.1’s mother, S.S., her mother, L.P. and quite possibly other guests. While it is not impossible, it is logically speaking, rather peculiar that R.P. would seize the opportunity to penetrate M.T.1’s vagina with his fingers as the lessons were being given. Any expression of surprise or discomfort by M.T.2 would have been plainly visible. Similarly, it is possible that R.P., as described by I.S., exited his office naked and in a state of erection, exposed himself and made his way upstairs to the kitchen in that condition. It is however of a particularly unlikely nature given the activity described by all witnesses at the P. home. The unlikeliness that these events occurred alone might not lead the court to conclude that those events didn’t take place as described, however the cumulative effect of the difficulties expressed with regards to the evidence of the complainants together with the tacit acceptance by the Court of the defense evidence on the important points leads the Court to conclude that while the possibility exists that inappropriate contacts by R.P. occurred, they are far from having been proved to the degree of certainty required before findings of guilt can be made.
[90] Finally, I have dismissed, in my analysis, the evidence of M.S. for the following reasons.
[91] M.S. stated in her interview with the police that the incidents at the P. residence involving R.P. entering the bathroom as she bathed occurred when she was 11 or 12 years old, therefore in 1968 or 1969. At trial she testified that she may have been 12 or 13 but was still a child and not a young adolescent. The P.’s moved into the residence in question in the fall of 1971, at a time when M.S. was well past her 14th birthday. Moreover, the references in her statement and her testimony to having attended the home to use the swimming pool, and the references to her grandparents coming to the house to swim would place the events, at the earliest, in 1976, when M.S. was 19 years old. M.S. may simply be mistaken however this apparent contradiction makes her evidence unreliable. It is in any event of a secondary nature.
[92] In the result, and for the reasons given, the evidence advanced does not establish beyond a reasonable doubt that the offenses were committed. R.P. will be found not guilty of the charges on the indictment.
The Honourable Justice R. Pelletier
Released: November 15, 2016
COURT FILE NO.: 13-SA5087 (Ottawa)
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
– and –
R.P.
Defendant
REASONS FOR JUDGMENT
Pelletier, J.
Released: November 15, 2016