R. v. P.S., 2016 ONSC 7288
COURT FILE NO.: 16-13
DATE: 2016/11/22
ONTARIO
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE (WITNESSES or COMPLAINANT) IS PROHIBITED FROM PUBLICATION BY ANY METHOD PURSUANT TO SECTION 486(3) OF THE CRIMINAL CODE.
BETWEEN:
HER MAJESTY THE QUEEN
– and –
P.S.
Respondent
Matthew Collins, counsel for the Crown
N. Chugh, counsel for the Respondent
HEARD: November 16, 17 and 18, 2016
reasons for judgment
LACELLE, J.
Introduction
[1] P.S. is charged with having committed various sexual offences against D.C., when D.C. was a child of about 7 years of age. The accused is the first cousin to D.C.’s grandmother, with whom she lived when she was a little girl. D.C. is now 20 years old.
[2] D.C. describes being babysat by the accused, during which time three types of incidents occurred. First, the accused is alleged to have forced a popsicle down her throat to the point that she choked and vomited on the floor. Second, the accused is alleged to have used his thumb to hook the complainant by the cheek and lead her places, or to have forced his thumb down her throat. Third, the accused is alleged to have tried to insert his penis in the complainant’s mouth, after giving her a bath.
[3] The complainant says all these things happened when she was 7 years old, during the winter time. She is firm in her recollection that the events occurred before she had her first communion. This would place the events in the latter part of 2003 or early 2004.
[4] The accused testified during the trial and denies that the offences took place. He denied that he had ever babysat the complainant, and said she had never been to his house. He also produced evidence of records from the Ministry of Transportation showing his addresses for a number of years. These records show that during 2003 and 2004, the accused lived in the town of P. The records indicate that the accused resided at the house in the S. area described by the complainant in September of 2009. In the later half of 2009, the complainant was 13 years old.
The positions of the parties
[5] While recognizing that children’s memories may not be as exact as those of adults, the defence says the evidence showing that the accused only lived in the house described by the complainant at the time she was 13 cannot be reconciled with the complainant’s recollection of these events. The defence highlights further inconsistencies in the accounts given by the complainant and her sisters about whether and when they visited the accused’s house in S. The defence says it does not doubt that the complainant has been traumatized in some fashion in her life, and does not attack her credibility as a witness. The defence says the evidence of the complainant is unreliable, however, and argues that the Crown has not proven that the accused is the person who assaulted her.
[6] The Crown acknowledges the difficulties in its case given the discrepancy in the records as to when the accused lived at the house described by the complainant, and the complainant’s memory of her age at the time of these events. He argues that notwithstanding this and other difficulties in the evidence, the court should have confidence that the complainant has reliably testified about who hurt her. The Crown points to the detail in the complainant’s evidence, and consistent evidence from her mother about a trigger that she continues to experience following the assaults she alleges. He highlights that a lot of the complainant’s evidence is accurate, and reminds the court about the direction from the Supreme Court of Canada as to how to approach the assessment of children’s evidence. The Crown acknowledges that while the accused was not impeached during his testimony, given his previous record for offences of dishonesty, and given his insistence that the complainant was never at his house, the court ought not to accept his account.
[7] The fundamental issue before the court is whether these events occurred as alleged by the complainant. This turns on my assessment of the credibility and reliability of the witnesses who have testified.
The legal principles
[8] In our law, an accused person is presumed innocent until proven guilty. It is the Crown who bears the burden of proving any criminal offence charged beyond a reasonable doubt. Our law requires that if a judge has a reasonable doubt about whether the accused committed a criminal offence, the accused must be acquitted.
[9] In a case like this, where the accused has testified and presented evidence, the case of R. v. W.D. directs the court in its approach to the evidence. In summary, it tells me that if I believe the accused’s evidence, or it leaves me with a reasonable doubt after I have considered it in the context of all the evidence called at trial, he must be acquitted. In a case like this, then, my assessments of the credibility and reliability of a witness’s evidence are particularly important.
[10] It is important to note, however, that in deciding a case, a judge is not comparing each account and deciding which account to believe. It is also important to note that a judge can believe a witness, but still be left with a reasonable doubt about what happened after considering all of the evidence.
[11] Further, even if a judge disbelieves the evidence given by an accused person, or is not left with a reasonable doubt based on the accused’s evidence, this does not mean that the Crown has proved its case. A judge must always determine based on all the evidence called whether the Crown has proved each element of every offence charged beyond a reasonable doubt, because there is evidence that the judge accepts that supports each element the Crown is required to prove.
[12] Our law has developed in this way because of the jeopardy accused people face when they are charged with criminal offences. Before a person is required to face the consequences of a criminal conviction, a judge must be sure that the accused committed the offences with which he is charged. If the evidence is not strong enough to show with that degree of certainty that the accused committed the offence, the accused must be acquitted.
The approach to the evidence of children
[13] In considering the evidence in this case, I also consider the law that addresses the correct approach to assessing the evidence of children, and of adults who testify about events that occurred when they were children. R. v. R.W., 1992 CanLII 56 (SCC), [1992] S.C.J. No. 56 at paras. 23 confirms that there is no assumption that the evidence of children is always less reliable than the evidence of adults. Of course, a court may approach a child’s evidence with caution, if that caution is merited in the circumstances of the case.
[14] The court in R.W. further expanded on the correct approach to children’s evidence, and evidence given by adults about events when they were children, at paragraphs 24 and 26:
One finds emerging a new sensitivity to the peculiar perspectives of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. Wilson J. recognized this in R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at pp. 54-55, when, in referring to submissions regarding the court of appeal judge’s treatment of the evidence of the complainant, she said that
… it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellant’s submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testified before the courts must, of course, be carefully assessed but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children.
It is neither desirable nor possible to state hard and fast rules as to when a witness’s evidence should be assessed by reference to “adult” or “child” standards – to do so would be to create new stereotypes potentially as rigid an unjust as those which the recent developments in the law’s approach to children’s evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.
Application of the principles to the facts
[15] I agree with the position taken by the defence that the issue in this case relates to the reliability of the complainant’s evidence. No one doubts the credibility of the complainant. The defence accepts that the complainant has experienced trauma. No motive to fabricate is alleged. The issue is whether her evidence is sufficiently reliable to meet the very high standard imposed upon the Crown.
[16] In considering this issue, I must consider the evidence of the complainant in the context of all the evidence presented during the trial. I have done so, keeping in mind that she was a young child during the events she describes, and her evidence needs to be considered in the context of her age at the time of the events she alleges.
[17] After considering all of the evidence, I arrive at the conclusion that I cannot make sense of the differences between the complainant’s account of events, and other evidence in the trial. I will describe a few of those issues to illustrate the difficulty in making sense of the evidence.
[18] First, and most importantly, I cannot reconcile the complainant’s recollection of her age and the time frame when the assaults occurred with other evidence that confirms the accused lived in the S. area about six years after that time frame. The evidence that the accused lived at the house described by the complainant in S. in 2009 was provided in the MTO documents, and confirmed in the evidence of the accused. This evidence was also consistent with the recollection of the complainant’s sisters about when they visited the accused at this address. I accept the evidence which shows that the accused’s residence in the house described by the complainant commenced towards the later half of 2009.
[19] This means that the complainant would have been thirteen years old at the time, and not seven, as she recalls. I agree with the defence that this is a significant difference. The complainant’s account of what she wore, and how she was handled by the accused, make much less sense if she was as old as thirteen. This evidence also is difficult to reconcile with her certainty about certain events, like her first communion, which she says happened afterward.
[20] Second, there is a discrepancy in the evidence describing the bathroom where the complainant says one of the assaults occurred. The owner of the property, who was the landlord to the accused, describes a different layout to the room.
[21] Third, the evidence given by the complainant and her sister A. is not consistent on important issues. For instance, the complainant says that A. was present in the house during the incident in the bathroom. She said that she left the bathroom, and ran outside while the accused chased her. She says the accused caught her, brought her inside with just a towel on, and sat her on the couch beside her sister. She says he then yelled at her. A. has no recollection of this event. She further indicates that she was never at the accused’s house with the complainant.
[22] Whether A. was with her sister in 2003 or 2009 for the events described by the complainant, I think she could be expected to remember an event like that described by the complainant. A.’s memory that she only went to the house when she was twelve or thirteen, accords with the MTO documents. The reliability of A.’s evidence is confirmed in that way. The fact that she recalls no time when she was at the accused’s residence with her sister concerns me.
[23] Fourth, there is an inconsistency in the evidence given by the complainant and that of the other witnesses about how they were taken to the accused’s residence, and whether he ever babysat the complainant and her sisters. The accused says he never picked up the children when they came to his house, and that he never acted as a babysitter to any of the children. Both the complainant’s sisters confirm that evidence. It is difficult to reconcile this evidence with the firm memory of the complainant that her grandmother dropped her, and sometimes her and her sisters, off to be babysat by the accused.
[24] Fifth, there is a discrepancy in the evidence relating to the accused’s spouse at the time. The complainant recalls that the accused had a spouse or girlfriend. She described her as blonde, and said she wore a lot of makeup. The accused, the complainant’s mother, and her sisters all describe the accused’s former spouse as having dark hair. No other witness confirmed she wore makeup, and the evidence was consistent that she did not.
[25] While some of these details matter more than others, and some difficulty with precise memories of certain issues is to be expected when testifying about things that occurred when the witness was a child, there is a considerable gap in the evidence given by the complainant and that of the other witnesses on several issues. This causes me to question the reliability of the complainant’s account.
[26] In addition, I am concerned about the quality of some of the evidence given by the complainant because of her response to certain questions. There were a number of times when the complainant used language like she “would have” been doing something, or something “probably” happened, which suggested she was piecing the account together from other facts. For instance, at the time of the alleged assault with the popsicle, she said she “would have been wearing jeans, and they were probably too small”. Later in her evidence it became clear that she felt she had not been given appropriate clothes by her grandmother, who was her caregiver at the time. I am concerned that some of the language used by the complainant suggests that she was filling in gaps in her memories from other memories she had, and reconstructing what occurred.
[27] Another example of this came when it was suggested to the complainant that she did not visit the accused in 2003 because he was living in P. at the time. The complainant then suggested that she remembered being on a long car ride with her grandmother and arriving at the accused’s home. This is difficult to reconcile with her earlier evidence that when her grandmother took her to the accused’s house, the car ride was about twenty minutes. While I appreciate that children are not very able to accurately estimate time, and a discrepancy like this may not mean very much in the context of some cases, here, I am concerned about the complainant’s willingness to adjust her testimony to meet other facts suggested to her.
[28] Finally, there is a discrepancy in the complainant’s account and her mother’s account about whether the two had ever been to B. together. This is not an important issue in the trial. But it reinforced my concern that the complainant may have been influenced in her evidence by other facts that were suggested to her as undermining her account.
Conclusion
[29] When I consider all of the evidence, I cannot say that I believe the accused’s account entirely. I do not believe that the complainant was never at his residence in S., for instance. But his evidence, considered together with all the other evidence, leads me to be unsure of what occurred between him and the complainant.
[30] The complainant impressed me as a young woman who is bright, sensitive and determined. She has overcome a lot in her life already, and she is on the path to a promising future. I have no doubt that she was at the accused’s home in S. at some point in time, and I do not believe that she is making up her allegations. I find the complainant is credible.
[31] While it will be difficult for the complainant to understand this, notwithstanding that I do not think she is making up her allegations, I have a reasonable doubt that the accused assaulted her as she alleges. I simply cannot be sure that the events occurred in the way she describes, since there is so much else in the evidence about which I cannot be sure. I am not satisfied beyond a reasonable doubt about the reliability of her account.
[32] When judges cannot be sure of what happened, they must acquit. Since I am not sure in this case, I have a reasonable doubt. Therefore, the accused will be found not guilty on all counts.
Madam Justice Laurie Lacelle
Released: November 22, 2016
CITATION: R. v. P.S., 2016 ONSC 7288
COURT FILE NO.: 16-13
DATE: 2016/11/22
ONTARIO
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE (WITNESSES or COMPLAINANT) IS PROHIBITED FROM PUBLICATION BY ANY METHOD PURSUANT TO SECTION 486(3) OF THE CRIMINAL CODE.
HER MAJESTY THE QUEEN
– and –
P.S.
REASONS FOR JUDGMENT
Madam Justice Laurie Lacelle
Released: November 22, 2016