R. v. D.P., 2016 ONSC 7795

COURT FILE NO.: 13-30000495-0000

DATE: 20161213

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

D.P.

Defendant

Maureen Pecknold, for the Crown

John Erickson, for the Defendant

Kelley Bryan and Dawne Way, for the Complainant on the Third Party Records Applications

HEARD: February 1-5, 11, March 22, April 11, June 20, and October 18, 2016

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainants and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.

SPIES J.

Introduction

[1] D.P. was arrested and charged on June 15, 2012 with three counts of sexual assault and three counts of sexual interference with respect to the complainant, V.R.[1], in the period between February 1, 2008 and June 30, 2008, when she was seven years old. At the time in question, D.P. was the boyfriend of V.’s mother, S.G. He is also the father of V.’s younger stepsister, R. D.P. pleaded not guilty to all of the charges. The trial proceeded before me without a jury.

[2] At the outset of the trial, the Crown brought an application for an order admitting a prior videotaped statement V.’s mother gave to police on June 14, 2012. Tragically she was brutally murdered on May 8, 2015. Mr. Erickson consented to the introduction of this videotaped statement as part of the Crown’s case on condition that certain documents from the Family Court proceedings in the Ontario Court of Justice would also be admitted. Mr. Erickson had also consented to the videotaped statement given by V. on June 14, 2012, being introduced as part of her evidence pursuant to s. 715.1 of the Criminal Code (“First Statement”) and V. was the only witness called at trial by the Crown. She gave her evidence from another room with counsel present in that room and a video link to the courtroom so that D.P. and I could observe her giving evidence.

[3] Mr. Erickson brought a third party records application at the outset of the trial, seeking disclosure of counselling records made by Sheila Waterman of the Toronto District School Board relating to V. on June 13, 2012. During this session V. told Ms. Waterman that D.P. had touched her inappropriately. Fortunately that application, which was brought very late, was resolved with the consent of V. Her counsel was able to review the records that had been produced to the court and obtained V.’s consent to their production so the trial was not delayed.

[4] On February 11, 2016, Mr. Erickson brought an application for an order that the proceeding be stayed on the basis of lost evidence and the Crown’s failure to preserve evidence with respect to a second videotaped statement V. gave to Officers Handsor and Howell, on May 21, 2013 (“Second Statement”), which he alleged breached D.P.’s right to make full answer and defence pursuant to ss. 7, 11(d) and 24(1) of the Canadian Charter of Rights and Freedoms. V. gave this Second Statement after she reported further details of her allegations against D.P. to her counsellor, Grace Liu, and in particular allegations made for the first time that he had engaged in sexual intercourse with her. For reasons unknown, the audio and video of this statement was not either taken or preserved and so the only record of V.’s Second Statement was the interview notes made by Officer Howell and a Children’s Aid Society (CAS) worker, Katrina Hofstra, who was also in attendance. This application was deferred, to be argued at the end of trial.

[5] The Crown’s case closed after the video statements of S.G. and V. were introduced into evidence and V. testified.

[6] Because V. had not admitted various statements that she was alleged to have made to police in the Second Statement, Mr. Erickson called Officer Howell. Mr. Erickson decided not to call Ms. Hofstra or Officer Handsor but on February 11, 2016, the trial was adjourned to March 22, 2016, so that he could call Ms. Angela Jayachandran, another CAS employee, who had met with V., and Ms. Liu.

[7] Ms. Liu was expected to testify about V.’s additional allegations of sexual intercourse, which led to the Second Statement, which were referred to in an affidavit sworn on June 10, 2013 by Ms. Hofstra. However, Ms. Liu did not attend court. Instead, her supervisor attended with a letter from Ms. Liu’s doctor stating that although her baby had been born in October 2015 she required complete rest until June 10, 2016. Mr. Erickson advised me that he had attempted to have Ms. Liu answer questions in writing so that an agreed statement of facts could be presented to Ms. Pecknold for her consideration but Ms. Liu was not prepared to do that either. Although Ms. Jayachandran was available and did testify, the trial had to be put over due to the unavailability of Ms. Liu.

[8] Mr. Erickson then brought a third party records application seeking disclosure of counselling records made by Ms. Liu. On April 7, 2016, Ms. Bryan attended on behalf of V. and advised that V. was prepared to consent to disclosure of the records. The records were then provided to Ms. Bryan so they could be vetted by her.

[9] Because of scheduling issues with both counsel, the trial was adjourned until October 18, 2016, resulting in a significant and unfortunate gap of time between the evidence of V. and the conclusion of the case. To ensure no prejudice to the Crown’s case, I ordered transcripts of all of the evidence.

The Evidence

Statement of S.G.

[10] S.G. was not asked to give evidence under oath or affirmation when she gave her statement but it was explained to her that police were conducting a criminal investigation and that she was obliged to tell the truth. S.G. was advised that if she did not tell the truth she could be charged with a criminal offence. She promised to tell the truth and in my view this was equivalent to S.G. giving her evidence under oath or affirmation.

[11] S.G. said that she first met D.P. during the summer when her daughter L. was about 16 months old, which I presume was the summer of 2007. S.G. testified that at the time she was living with D.P. they were living at Address 1, in the upstairs part of a house that she was renting. Prior to that she lived at Address 2, for three to four years. She stated later in her statement that this is where she was living when she had a relationship with D.P. and when she went to Trinidad for her mother’s funeral and that D.P. was living there as well. There is, therefore, some confusion as to where S.G. was living when the alleged sexual assaults occurred.

[12] S.G. went back to Trinidad for her mother’s funeral in early February 2008. She took L. with her because she was a baby and allowed to go for free. She couldn’t afford to take V. with her. S.G. stated that she left V. with D.P.’s aunt “with the access of D.P. So he was able to pick her up and take her to school – perhaps, I can’t remember if it was daycare. If she was still in daycare at that time. I am pretty sure she was. So he used to take her to daycare and school. So he had access to her.”

[13] At this time D.P.’s aunt and uncle were living in an apartment at Address 3. S.G. stated that they had offered to take care of V. S.G. stated that at this time V. was in school and she didn’t want to pull her out of school, although as I have set out above, earlier in giving her statement S.G. seemed to be “pretty sure” V. was in daycare. Assuming S.G.’s evidence is correct as to when she began her relationship with D.P. and went to Trinidad; V. would have been seven years old and should have been in Grade 1 or 2. It may be that S.G.’s confusion over whether V. was going to daycare is that V. was going to daycare before and after school and attending school full time. I appreciate that that is speculation on my part but I have concluded that her confusion about this issue does not otherwise undermine her evidence.

[14] S.G. stated that she had no concern about D.P. so she gave him access to V. while she was in Trinidad. Their relationship to that point was very good. When asked if V. was supposed to spend the entire time at his aunt and uncle’s, S.G. said: “No, he could take her and bring her home. She could have spent the night with him at the house, or she could have – because I had trusted this person.” She continued to say that if D.P. felt it was not too much for him to get up early in the morning and send V. off to “daycare” and go to work it was fine with her. Again I note she referred to daycare and not school although as I have already noted the confusion may be that at that time V. was going to both.

[15] S.G. testified that her kids had never disclosed to her anything that D.P. had done to them that they didn’t like and they had never complained to her that he had touched them in their private parts. When S.G. found out about V.’s allegations the day before she gave her statement, she was “quite shocked”. She was only told that V. had been “touched by someone” and she was not aware of who it was. She didn’t speak to V. about it afterwards because she didn’t want to upset her.

[16] When S.G. was asked how she felt about D.P. as a father, she said that he “is a great dad, by coming to R.” but he was not such a great dad with her children. She was concerned that he used to drink a lot and then drive with R. in the car. When she found out that R. was in fact living with D.P.’s grandmother, that gave her peace of mind.

Evidence of V.

[17] V. was born on […], 2001 and when she testified before me she was in Grade 9 and 14 years old; almost 15. She has two younger sisters, L., born in […], 2006 and R., born in […], 2008. She was living with her two sisters although did not testify as to who is caring for her in light of her mother’s death.

[18] V. was 11 years old and in Grade 5 when she gave the First Statement. This was considerably after the date of her allegations against D.P. but, as Mr. Erickson consented to its admission as part of her evidence, I did not question that. This statement was taken by Officer Stephen Patterson, and took about 20 minutes. Ms. Jayachandran, from CAS, was also present.

[19] At trial before me, V. confirmed that she told the truth when she gave her First Statement but she said that she left a lot of details out. She gave, as a reason, the fact that she had just met Officer Patterson, did not feel comfortable and was embarrassed and scared. V. admitted in cross-examination that she knew it was important to tell the truth and the whole truth when she gave this videotaped statement to police. She also agreed that she knew that if she had difficulty that Ms. Jayachandran and the officer were there to assist her in getting out her story.

[20] When Officer Patterson asked initially why V. was there, she was reluctant to say. After Officer Patterson assured her that she was in a safe room, Ms. Jayachandran started asking the questions. V. responded to her and she went on to give details of what she said happened when her mother went to Trinidad and her mother left her with “D.P.”; her “stepdad”. She couldn’t remember how long she was alone with him and thought it was two days or a week or two.

[21] In cross-examination V. testified that she did not remember her mother arranging for her to stay with D.P.’s aunt; Aunt P. and his uncle, at an apartment at Address 3, when her mother went to Trinidad. She testified that while her mother was away she stayed in the same apartment where she was living and did not go to D.P.’s aunt and uncle’s.

[22] V. told Officer Patterson that one night while her mother was away, she was getting ready for bed and was on her bed reading a book. D.P. came in and sat on the edge of the bed; by the head of the bed, and she sat up. They were both clothed. D.P. started touching her top and bottom. She showed Officer Patterson where he had touched her pointing to her chest and groin area. She said that she kept telling D.P. “stop” but he didn’t. She said that after touching her, D.P. told her not to tell her mother and he left. When asked how many times this happened, she said more than two times.

[23] Later in the interview further questions were asked about this incident in the bedroom, which I will refer to as “the book incident”. V. said that no one else was in the house at that time. It was a school night and she had to go to bed early, around 7 or 8 p.m. She recalled that she was reading Robert Munsch and a chapter book about fairies. When V. was asked where D.P. touched her she said it was the “B” word and then said “bum” pointing to her groin which she said he touched with one hand. She also described D.P.’s hands rubbing in circles on her chest. She said this lasted five minutes or so. During that time she was moving so he wouldn’t be able to touch her.

[24] V. also stated during this First Statement that she thought the second time this happened was “last year” which would put it in 2011. It was the middle of the day, she was on the couch watching television and her mother was with L. doing laundry downstairs. She had pants and a long-sleeved shirt on. V. said that D.P. touched her again at the top over her clothes. Later in the interview V. was also asked more details about this second incident, which I will refer to as “the laundry incident”. She said that D.P. used one hand to touch her on top and she pointed to her breast area. D.P. kept doing this until he heard her mother coming upstairs. Again, D.P. told her not to tell her mother. She felt scared because she never thought he would do something like that. In cross-examination V. could not recall the year the laundry room incident occurred but said that it happened in the apartment building at Address 2.

[25] V. testified that she didn’t talk to her mother about this incident because she was “scared”. She said that D.P. stopped being her stepdad the summer of the prior year, which would be the summer of 2011.

[26] When Officer Patterson asked V. whether or not D.P. had done anything else, she shook her head “no”. V. was later asked again if there were any other times that this happened. She said that she couldn’t remember, that she remembered the two times, but she knew that it was more than twice. She couldn’t remember when or how but he “used to touch me a lot”. She said she was scared and worried. She felt like shouting at him but if she did he’d hit her or scream at her. He had screamed at her before but not hit her. She couldn’t remember the last time it happened.

[27] Officer Patterson asked V. if there was anything else she wanted to share with them and she said “no”. She was then asked if there was anyone else who had done something like this to her and she said “no”. She ended the interview with confirming that everything she had told them was the truth.

[28] After the video was played and V. adopted that evidence, Ms. Pecknold asked V. further questions about these incidents. With respect to the book incident, when asked what she meant by D.P. touching her “bum”, V. became upset and eventually said it was her “boobs” and that he touched them in a circular motion. He touched her with his hands on her vagina as well. She said that D.P. didn’t say anything. She was nervous and confused and didn’t know what was going on. She said she couldn’t remember if it was over or under her clothing but he had his clothes on. She didn’t remember how long it lasted and could not recall how it stopped.

[29] V. also gave more information with respect to the laundry incident. She said that she thought her mother was pregnant and that at the time they were living in an apartment building with the laundry room on the ground floor. D.P. touched her on the “boobs” in the same way as before. She did not remember if it was under or over her clothing. He also touched her vagina with his hands but again could not remember if it was under or over her clothes. She kept saying “stop” but he wouldn’t listen. He told her that she should not tell her mother “or I will kill you”.

[30] V. was then asked by Ms. Pecknold if there was another incident that she did not tell Officer Patterson about. She then testified about an incident after she had taken a shower and said that this was actually the first incident of inappropriate touching. She was in her room getting dressed after taking a shower; she thinks she had gotten into her pajamas. D.P. called her from her mother’s bedroom. No one else was home. When she went to him he told her to take off her clothes. She said “no”. It escalated to the point where he took off her clothes, grabbed her shoulders and pushed her onto the bed so she was on her back. He then touched her vagina with his penis.

[31] At this point only her lower back was on the bed as she was sitting up a bit. V. was very reluctant before giving this evidence and when she stated the word “penis” she spoke very, very softly. She testified that she was looking at his penis while he was doing this, which was in her vagina and it hurt and she told him to stop. V. couldn’t remember if D.P. was touching any other part of her body. V. testified that she didn’t know how long this lasted and she could not recall how it came to an end. D.P. told her not to tell her mother. V. testified she didn’t tell anyone because she was very confused and thought it was her fault. She was very scared and didn’t know what was going on exactly.

[32] V. testified in cross-examination that she was in her own room when D.P. called her after she had taken a shower. She said she had no doubt in her mind that that is where she was and that she was never confused about this. Mr. Erickson then took her to her evidence at the preliminary inquiry where she testified at first that she was in her room when D.P. told her to take her clothes off. She then said she could see D.P. when he said this and changed her evidence to saying that D.P. called her to her mom’s room and that that is where she was when he told her to take her clothes off.

[33] Mr. Erickson suggested to V. that she changed her evidence to her being in her mother’s room because she realized that she wouldn’t be able to see D.P. if she was in her room. V. responded that she remembered it was in her mother’s room when D.P. told her to take off her clothes. She said that she was confused at the time she gave her evidence at the preliminary inquiry. As I understand V.’s evidence, she said that she was in her room when D.P. called her to come, she went to his room and that is when he told her to take off her clothes. I did not find her confusion over this of any consequence.

[34] V. testified that this shower incident occurred in the same Address 2 as the other incidents. Both the shower incident and the book incident took place when her mother was on the trip to Trinidad and the laundry incident occurred after she was back.

[35] At the end of the examination-in-chief Ms. Pecknold confirmed that V. had told us about three incidents and asked her if there were any other times when D.P. touched her inappropriately. She responded: “not that I can remember”. When asked again if D.P. did anything else or made her do anything, V. testified that D.P. put on a sexual video that showed people having sex, which showed her what he was doing to her. She could not remember when it was except that it was after the shower incident. At the time of the shower incident she didn’t understand what he was doing to her. He showed this video to her in the living room. She couldn’t remember how he got her to watch it. She thought this happened when her mother was in Trinidad. I will refer to this as the “video incident”.

[36] V. testified that initially her relationship with D.P. was really good but he “started getting more … mean” towards her after he sexually abused her.

[37] In cross-examination V. couldn’t remember how the book incident ended. She reaffirmed her earlier evidence that the incident with the video, the shower and the book incidents were all different days. She said, however, she was not 100% sure about the video incident although she agreed that the book incident couldn’t have ended with the video incident. At the preliminary hearing, however, V. testified that the book incident ended with D.P. taking her to the living room and showing her the video. This did not refresh her memory, however, and she testified she does not remember when this video incident occurred.

[38] In cross-examination V. denied knowing that in April 2010 there was an altercation between her mother and D.P. and that he was charged with assault and that her mother commenced a custody application for R. the same day. This assertion was never proven. V. also said that she did not know that in July 2010 an order was made giving R.’s primary residence to D.P.; a reference to an order of Spence J. of the Ontario Court of Justice that I will come to. She testified that her mother never shared any of this with her probably because she was very young. She did remember a point where R. was living with D.P. and she didn’t see her very often after that. All she knew was that she would see R. sometimes. She did not recall her mother and D.P. fighting over custody of R. although she did admit that her mother may have said that she wanted R. to come live with her.

[39] Mr. Erickson then took V. to evidence that she gave at the preliminary inquiry on June 20, 2013. At that time V. testified that R. told her that she wanted to live with her father and that she; V., did not want her to. She also testified that her mother told her that she wanted R. to live with them and not with D.P. because she didn’t think it was a safe environment for R. V. thought that her mother said this before she alleged the sexual abuse by D.P. She also testified at the preliminary inquiry that D.P. and her mother were fighting with each other over R. After reviewing this evidence at trial V. agreed that she was telling the truth at the preliminary inquiry as best she could recall it. Furthermore, as a result of reading this evidence from the preliminary inquiry V. admitted that before she made her disclosure to Sheila Waterman (see below), she remembered now that her mother wanted R. to live with them.

[40] V. was questioned about her disclosure of these allegations to others to explain how these allegations came to the attention of the police. In cross-examination Mr. Erickson questioned her extensively for the purpose of exploring her late disclosure of the shower incident and exploring whether or not her evidence at the preliminary inquiry was influenced by her preparation for the preliminary inquiry with counsellor Ms. Liu.

[41] V. testified in chief that the first person she told about these allegations was when she was seeing a counsellor in Grade 5, which would be Ms. Waterman. On the evidence this was on June 12, 2012. V. testified that in her fourth session with Ms. Waterman she told her that she needed to tell her something and she then told Ms. Waterman that her little sister’s dad had touched her. She didn’t tell her anything more. She said her reason for disclosing this was that she was going through puberty and started to realize this was wrong and this was bothering her. She realized it was wrong and she needed to get it “out of her system”. V. said that she spoke to Sheila because she felt most comfortable with her, as it was their fourth session. V. believes that it was Ms. Waterman who told her mom and called police.

[42] V. did not remember telling Ms. Waterman that her baby sister lived with D.P., that they had visits with her or that R. was visiting with them and that she was returning home to her father that day. As Ms. Waterman did not testify these alleged prior statements were not proven although I note that in the Affidavit of S.G. sworn March 22, 2013, referred to below, she did depose that R. was visiting her when the charges were laid. This is also consistent with the evidence of C.S. that I will come to.

[43] V. testified in chief that the next person that she told was Ms. Jayachandran, from the CAS, and that she spoke to Ms. Jayachandran before she gave her First Statement to Officer Patterson on June 14, 2012. In cross-examination V. admitted talking to Ms. Jayachandran about what happened but could not recall how much detail she gave her. When it was put to her that she didn’t tell Ms. Jayachandran about the shower incident she testified that she left a lot of details out as she had just met her.

[44] Mr. Erickson put to V. that she told Ms. Jayachandran about the book incident and the laundry incident but that with respect to the laundry incident she told Ms. Jayachandran that D.P. was touching her breasts and private parts with clothing off, that he had asked her to take her clothes off and she had said “no”. In response to this V. said that that reference was the shower incident. Mr. Erickson then put to V. that she didn’t tell Ms. Jayachandran about the shower incident. She responded to that suggestion by saying again that she left a lot of details out as she had just met this person and that she wanted to speak to a woman. Mr. Erickson then pointed out to her that Angela is a woman to which she responded that she had just met her and that she was still very nervous. She agreed that it might have been different if she had met Ms. Jayachandran before.

[45] V. did not recall that police had come to her home on May 17, 2012 or that a man whom her mother had met had been staying in her home for several weeks. Mr. Erickson took her to her evidence at the preliminary inquiry where she did admit that a man had been sleeping on the couch but he failed to ask her if this evidence was true.

[46] V. also did not recall meeting Ms. Jayachandran previously on May 28, 2012. Mr. Erickson suggested that at that meeting Ms. Jayachandran had asked her if she had been touched inappropriately by anyone and that V. had said “no”. V. testified that she did not remember this and that she did not recall CAS workers coming to the house to ask her questions.

[47] V. admitted that Ms. Liu helped her prepare for the preliminary inquiry that was conducted on June 20, 2013 when she was 13. V. admitted that she told Ms. Liu that D.P. touched her vagina and put his penis into her “bum”. She now knows the difference between her vagina and bum and testified that she thought that when she told Ms. Liu this she meant vagina not bum, explaining that that this was when she was younger. She told Ms. Liu that this was the first time that D.P. had sexually abused her. V. used the same word “bum” when she testified at the preliminary inquiry when she was 12. She said she really didn’t know the difference then and called it all the same. V. also admitted that she told Ms. Liu that D.P. also did “that” to her when he showed her the adult videos on TV of naked adults. It seems she was referring to the touching of the vagina but that is not clear.

[48] In re-examination V. was asked about her meetings with Ms. Liu and she testified that she could not remember if Ms. Liu ever told her what to say. She did state, however, that Ms. Liu did not tell her specifically to say any of the things that she had testified to at the trial.

[49] Mr. Erickson showed V. what appears to be a handwritten timeline or scale[2] that he suggested was prepared by her and Ms. Liu to prepare her for her evidence at the preliminary inquiry. V. testified that she couldn’t remember this document. She was then taken to her evidence at the preliminary inquiry when she was shown a document. Her evidence then was that Ms. Liu “did this paper with me” and that Ms. Liu explained to her “that I need to tell more of the details like how I told you guys today, because before when I talked to Ms. Amy and Mr. Patterson I didn’t give enough detail of what happened, so that gave a low standard of if he would go to jail or how much trouble he will get into or, um, if he can stay away from kids alone; if he’s alone with kids”. She went on to say again that it was Grace who wrote the paper and she showed her “step-by-step what they need to know”. She referred to the document as a “timeline” and testified that this is “tips I think she gave me”.

[50] V. did not remember giving this evidence at the preliminary inquiry but accepted that she did and that she was telling the truth and would never lie. She admitted that she probably did bring the document to the preliminary inquiry but didn’t remember it.

[51] Mr. Erickson then referred V. to more of her evidence at the preliminary inquiry about the timeline in the hope it would jog her memory. V. had testified about the circles at the bottom on the timeline and had said that these were what the police knew now from what they knew before. With respect to the three Xs and a circle on the timeline V. testified that “this is what they [the police] needed to know, this part. And they need to know more of what happened so, like steps. She [Grace] was putting it in steps for me”.

[52] V. did not recall giving this evidence at the preliminary inquiry either but admitted that it is what she was asked and said. When asked if as a result of this further evidence she remembered the timeline V. said that she could tell that the document Mr. Erickson had shown her had something to do with her evidence because “it’s relating stuff from what’s on this timeline to what’s in the transcript”.

[53] As the document referred to at the preliminary inquiry was unfortunately not marked as an exhibit, Ms. Pecknold, who was not the Crown at the preliminary inquiry, would not concede that it was in fact the same document that was produced by Mr. Erickson although she never offered any explanation for how it could not be as she never suggested that it was fabricated or altered by the defence. Mr. Erickson was not counsel at the preliminary inquiry either and had said this document was part of the disclosure. As V. did not positively identify this document it was marked as a lettered exhibit during her evidence.

[54] V. testified that she couldn’t remember giving another statement that was videotaped; the Second Statement she gave on May 21, 2013. She couldn’t remember when she told police about the shower incident although she remembered a “Ms. Amy” being a reference to Officer Amy Handsor.

[55] With respect to this Second Statement, V. couldn’t remember if there were two officers present and she could not remember that a CAS worker was present even when she was asked if it was the same person; Katrina Hofstra, who was her support person during the trial. She did admit however, that she thought Katrina was present.

[56] With respect to the Second Statement, when Mr. Erickson asked V. if she told the officers that D.P. had touched his penis to her vagina for a period of three to four years, V. testified said that she didn’t remember how long this happened. She did admit that it was true that she told the officers that this had happened more than one time and that he would do the “same thing” the other times. V. couldn’t remember if she told the officers how often it happened or that it happened regularly.

[57] A little later in his cross-examination of V., Mr. Erickson asked her again whether she had disclosed to the officers that the touching of the vagina by D.P.’s penis had happened over three to four years. V. said she didn’t remember although again she agreed it did happen more than one time. She didn’t remember telling the officer how often it happened or that it happened on a regular basis or that it happened for three or four years. V. did agree that by telling police that “the same thing happened every time” she was referring to D.P. touching her vagina area with his penis and that it happened more than just a few times.

[58] At the preliminary inquiry V. testified that D.P. had only put his penis in her vagina one time. At trial she said that evidence was the truth. When Mr. Erickson put it to V. that this meant that her statements to Ms. Amy were not correct as to the number of times D.P. had put his penis in her vagina, V. said she remembered it happening more than once but it was touching but not with his penis. She said that when she was saying that the same thing happened every time she didn’t mean that D.P.’s penis was in her vagina; it meant touching her with his hands. In re-examination V. testified that when she said that D.P. acted the “same way every time” she meant that he would do sexual things every time but not the same exact thing and the touching of her vagina by D.P.’s penis occurred only one time.

[59] V. did not recall if an uncle of hers and a godfather were living with her and her mother when D.P. and her mother first developed a relationship and this was never proven. It was put to V. by Mr. Erickson in cross-examination that if someone abused her, she was mistaken as to who it was and that it was not D.P. In response V. said that she was telling the truth and she didn’t think that she would “get it wrong”.

Family Court Proceedings

[60] Two documents were admitted into evidence on consent. The first is a consent order made by Justice Spence of the Ontario Court of Justice on July 7, 2010 awarding final custody of R. to both S.G. and D.P. jointly. The primary residence of R. was to be with her father and access was provided in the order for her mother.

[61] An affidavit sworn by S.G. on March 22, 2013, in support of an application to change the custody order of R. from joint custody to S.G. being the sole custodial parent, was also admitted on consent. In that affidavit S.G. referred to various events that had occurred since the consent order of Justice Spence dated July 7, 2010. She deposed that she and D.P. were involved in a relationship from 2007 to 2011 but never lived together full-time and that D.P. would stay over at her house a few nights a week but never moved in.

[62] S.G. also deposed that notwithstanding the order of Justice Spence, R. actually lived with her until August 2011 but that when she and D.P. ended their relationship in August 2011, he moved in with his mother and took R. with him against her wishes. She believed she had no choice but to follow the court order and only saw R. two or three times over the next ten months and only when she arranged it through a mutual friend. S.G.’s affidavit also refers to D.P.’s charges of sexual assault in June 2012. She deposed that when the charges were laid, R. was actually visiting S.G. and that R. had remained with her since with the approval of the CAS.

Evidence of P.P.

[63] P.P., D.P.’s aunt, testified that in 2008 they lived at Address 3 with her two children – N. born in 1998 and A. born in 1999. D.P. is her husband’s nephew. P.P. testified that she knew V.’s mother as S.G. and first met her when D.P. brought her to her apartment and introduced her. She couldn’t remember the year. She met V. and her younger sister L. at the same time. In cross-examination she testified that she thought she met V. and her mother in 2007.

[64] P.P. testified that she looked after V. when S.G.’s mother passed away in Trinidad. She was living in an apartment at Address 3 at that time. P.P. testified that she had been asked to babysit the two children but that she told S.G. that she could only babysit one. She agreed to look after V. because she was older. She was not sure of the date but believed it was in 2008. She testified initially that this was in the fall and then apologized and said it was in the spring. She testified that V. came to stay with her, that her mother dropped her off, that V. spent a few days with her and her mother then picked her up when she came back. At this time P.P. was a stay-at-home mother. Her husband was not working as he had had three heart attacks. P.P. testified that V. was wearing a pink winter jacket when she arrived and said that she had a children’s backpack with some clothing.

[65] When P.P. was cross-examined about whether she was sure if V. came in the fall or spring she said that she came with her winter jacket and that it was “spring like” and she was pretty sure it was January or February. When Ms. Pecknold pressed as to why she first mentioned the fall there was a lot of back and forth and it was clear that P.P. was confused about the date. She recalled that V.’s mother asked her to care for V. in the spring but she said it was cold. She couldn’t say how long V. stayed with her but thought it might be six days. She wasn’t sure. She had corrected her answer from fall to spring and if the evidence of S.G. is correct it was winter; February 2008.

[66] P.P. testified that V. did not go to school during this period and that she did not take her for visits anywhere. This included D.P. whom she said that she did not see during the time V. was with her. P.P. testified that she did not know where he was during this period. She recalled that she took her own children and V. to McDonald’s once during this period. She did not take V. to her own home any time while she was looking after her. She recalled that she took a picture of V. drawing with her children but she could not find this.

[67] P.P.’s children were going to school but V. did not go to school while she was staying with them because P.P. testified that S.G. told her to keep V. until she came back and that she did not know the school V. was going to. While S.G. was away, D.P., to her knowledge, was staying most of the time with his mother and some of the time at S.G.’s place and sometimes with friends. She did not hear from him when V. was with her.

[68] It was suggested to P.P. in cross-examination that it was D.P. who asked her to take care of V. In response she stated that if V. could remember, there was an occasion when she had knots while she was combing her hair after a shower and V. said “Auntie you are pulling my hair”. She stated how is “D.P. going to make me say these things, and this is the truth”. Ms. Pecknold then pointed out that this was not the question she had asked and after she repeated the question P.P. answered that D.P. never asked her that. She also denied S.G. saying that D.P. could visit and spend time at the apartment with V.

[69] P.P. agreed that at the time D.P. considered V. as a stepdaughter although I note that it was still very early in his relationship with her mother. P.P. did not know if D.P. spent time with V. and she didn’t see him with her. She disagreed that he spent a lot of time at S.G.’s house or that he lived there. She believed that most of the time he was with his mother and R.

[70] When Ms. Pecknold returned to P.P.’s evidence about showering V. and brushing her hair, P.P. repeated some of her evidence and stated “if D.P. going to make up me to comment say this, she should get the memory that I’m putting forward her, a memory I was looking after her.” She was then asked by Ms. Pecknold how she knew whether or not V. remembered this. P.P. responded that she was “not here to be telling lie, like make up this, this is like exactly, V. stay at my house.”

[71] P.P. testified that no one had talked to her about what happened in the trial and that she did not know what the questions were that she was going to be asked and that D.P. did not tell her anything about what V. said. I had made an order excluding witnesses. When Ms. Pecknold then asked P.P. what made her think that V. could or could not remember staying at her house she gave a confusing answer and she did not know if she remembered or not.

[72] P.P. testified that she didn’t see S.G. regularly after that but would see her from time to time when they were shopping.

Evidence of C.S.

[73] C.S., D.P.’s fiancé, testified on his behalf. She met D.P. and R. in the summer of 2010 through a mutual friend. She recalled that D.P. was living with his mother at this time. In April 2011 they became more than friends and they started living together in October 2011. They lived for three weeks with D.P.’s aunt and then found a place to live together in November 2011.

[74] C.S. testified that S.G. called D.P. and asked that R. visit them for L.’s birthday. D.P. agreed and dropped her off on Friday, June 8, 2012 between 3 and 4 p.m. R. was supposed to go back to D.P. on the Monday of the following week which would have been June 11th. During that timeframe D.P. went to Service Canada as he wanted to get R.’s child bonus. C.S. testified that D.P. called S.G. and that she remembered him getting angry that she had been getting the child bonus all along even though R. was not living with her. This was hearsay and must be ignored.

[75] C.S. testified that R. was to see her mother every weekend but if D.P. didn’t call her on the Wednesday she would refuse to take her. According to C.S., there was no time when S.G. wanted R. and D.P. would not bring her. C.S. testified that R. visited her mother around six times in the period November 2011 to June 8, 2012. She has not seen R. since June 8, 2012.

Evidence of Courtney Howell

[76] Officer Howell was the “scribe” when V. gave her Second Statement on May 21, 2013 to Officer Handsor. This was her first and only involvement in the matter. Her job was to make notes of what V. said and she did so as V. was speaking. She was writing as fast as she could; possibly short-term versions of V.’s answers because she couldn’t write every word V. said. The note-taking was to be a backup and not a verbatim account of what V. said. She would generalize what V. said. However, if she has a note in quotations those are the actual words used by V.

[77] Officer Howell testified that the fact that there was no audio of the interview was completely unexpected. Although in answer to questions from Ms. Pecknold, Officer Howell agreed that the interview lasted for an hour and forty minutes, that is in error as she testified that they were in the interview room at 1:30 and that the interview concluded at 2:16; meaning the interview lasted forty-six minutes. However it took Officer Howell less than five minutes to read her notes into the record. Although the interview was three years ago Officer Howell had a hazy recollection of it and she testified that after reading her notes that definitely refreshed her memory.

[78] V. told them that she had come to say “what happened”. She was 12 years old and in Grade 6 at the time of the interview. Officer Howell did recall that V. was asked questions multiple times and she said repeatedly that she couldn’t remember. She couldn’t remember what questions she said this in response to.

[79] V. told them that she was between six and eight years old when her mother went to Trinidad for the funeral although she then said that it was in 2008. V. said that she had been left at home with D.P. and that she did not like this because he was mean and would shout at her when she did not do anything wrong.

[80] The shower incident was the only incident reported by V. in any detail to the officers and she said that it happened on the first or second night that her mother was in Trinidad. Officer Howell read her notes into the record to describe what V. told them happened after she got out of the shower. This was an occasion when D.P. is alleged to have touched her with his penis. Her notes state that “this happened for 3 or 4 years” and that “this happened more than 1 time.” Officer Howell said that these were V.’s words. Her notes also record that “he would do the same thing the other times. Once a week/once a month”, which she said were V.’s words which she interpreted as a reference to the entire shower incident.

[81] V. did not use the word “chest area” or “vagina”. Instead she used her hands to make the motions or to point to “here” referring to where it happened. She was soft-spoken and seemed to be embarrassed. “Vagina” is Officer Howell’s interpretation of what V. was referring to. V. was completely uncomfortable about talking about it and about the specifics of what took place. Officer Howell stated however, that “penis” is a word that V. used although she was prompted to use the word penis; it was not spontaneous. She could not recall if V. was asked whether or not there was penetration by D.P.’s penis.

[82] When asked in cross-examination whether or not V. was asked by Officer Handsor what she meant by “the same thing” Officer Howell said that she presumes that she did so as she would not have generalized or assumed that. It is her understanding that every time D.P. touched V. he touched her vagina with his penis and that V. said this happened once a week/once a month. Her understanding was that he would only touch her vagina with his penis and would not necessarily insert it into her vagina. Officer Howell’s statement that D.P. would do the “same thing” was her interpretation of what V. meant. Officer Howell’s understanding was that the first time it occurred in her mother’s bedroom and that each time it happened it was the same act but that it happened in her mother’s room or on the couch in the living room.

[83] In cross-examination Officer Howell agreed with Ms. Pecknold that when V. said that “he would do the same thing the other times” she really did not know if she meant his penis touching her vagina. It could have been touching her with his hands. When V. became uncomfortable Officer Howell would generalize her notes. Officer Howell acknowledged that it is possible that V. meant that D.P. was touching her with his hands the other times and not his penis when she said “the same thing” happened. She only recorded in her notes, however, that D.P. touched the complainant’s vagina with his penis. She did not record that he used his hands. If V. had said that there was another manner of touching Officer Howell would have recorded this.

Evidence of Angela Jayachandran

[84] Ms. Jayachandran testified that on May 24, 2012, the CAS received a call from police about some allegations of a sex offender being in the family home and so she contacted S.G. and scheduled a home visit on May 28, 2012. She spoke to V., who was 11 at that time, in the living room; her mother was in the home and walking in and out. She spoke to V. about personal safety and about good and bad touch and asked her if anybody had touched her inappropriately. V. told her that nobody had touched her inappropriately. Ms. Jayachandran had been trained to do these types of interviews and testified that there was nothing about V.’s demeanour or her answers that caused her to have concerns that she was not telling her the truth.

[85] Ms. Jayachandran next met with V. at school for about one hour, on June 13, 2012, the day before she gave her First Statement and she was present when V. gave that statement.

[86] In cross-examination Ms. Jayachandran admitted that based on her experience of ten years, that sometimes children do not disclose something right away. She also agreed that on May 28th, V. was quite shy and quiet and she was not very forthcoming. She agreed that children of the age that V. was sometimes do hide things from people and that she would not be able to tell if she was telling the truth.

Evidence of Grace Liu

[87] Ms. Liu is a trauma services coordinator for the Aisling Discoveries Child and Family Centre. She has been employed there since 2008 or 2009 and recalls counselling V. She has a Masters in social work.

[88] Ms. Liu was counselling V. at the same time the family was involved in custody proceedings concerning her younger sister. She met V. for the first time on November 28, 2012 and had 17 sessions with her until August 28, 2013. She saw her nine times before the preliminary inquiry took place. She believed that during these sessions, she discussed V.’s allegations with respect to D.P., her mother’s ex-boyfriend. It appears that as a result of V.’s disclosure of the shower incident to Ms. Liu that arrangements were made for her to provide the Second Statement.

[89] Mr. Erickson asked Ms. Liu about a conversation that she had with Katrina Hofstra from the CAS on May 1, 2013 that was referred to in an affidavit sworn by Ms. Hofstra on June 10, 2013 in the Family Court proceedings. In that affidavit Ms. Hofstra set out information that she deposed she received from Ms. Liu about additional allegations made by V. to Ms. Liu.

[90] Ms. Liu did not recall what details she shared with Ms. Hofstra. She then reviewed paragraphs 98 and onwards of Ms. Hofstra’s affidavit to refresh her memory. Ms. Liu accepted that the affidavit set out what V. had told her but given her evidence in cross-examination she may have just been relying on the accuracy of what Ms. Hofstra stated.

[91] Ms. Liu was asked about a call to Ms. Hofstra’s office on May 16, 2013 that was also referred to in Ms. Hofstra’s affidavit but Ms. Liu had no note of that in her file. She said that if the affidavit says that she spoke to her, then “I guess I did”. The affidavit of Ms. Hofstra however, did not refresh her memory and she could not remember telling Ms. Hofstra that V. had told her the information in the affidavit.

[92] Ms. Liu insisted she did not remember what V. had told her. She was then asked to look in her file and testified that there was no specific note saying exactly what was said consistent with Ms. Hofstra’s affidavit. In re-examination Ms. Liu was asked what she meant when she testified that if the affidavit said something that must be what she said. She was relying on the accuracy of the person who prepared the affidavit and the accuracy of that person in recording what she said and their interpretation of what she said. I, therefore, conclude that Ms. Liu did not adopt the statements in Ms. Hofstra’s affidavit as her own.

[93] Ms. Liu was then shown the timeline that had been shown to V. and marked as a lettered exhibit. She said she thought the handwriting was hers but that she did not remember this document at all and that it was not in the file. She confirmed the reference to R. on the document was a reference to V.’s sister and that R.’s father’s name was D.P. which is a name that also appears on the document. She stated again however, that she did not remember this at all. In cross-examination Ms. Liu testified that this document “could” be my handwriting and that it “looks like it” but again she said that she did not remember writing this. On a scale of probability she said it was a seven out of ten in terms of the likelihood that she prepared the document. She also testified that she had no idea where the information came from and that if she did write it in V.’s presence she wouldn’t be able to say if this is what V. said to her.

[94] Ms. Liu testified that V. was scared about the upcoming preliminary inquiry and that she helped her to alleviate her concerns. She did not remember what she said but she would have let her know that all she could do was to tell the truth. Ms. Liu testified she did not tell V. to give the details. Given my findings with respect to the timeline V. testified about at the preliminary inquiry, I do not accept that evidence.

[95] At the end of the evidence of Ms. Liu, Ms. Pecknold took the position that the timeline document had still not been authenticated. Mr. Erickson disputed that and submitted that in the end V. adopted what was she said at the preliminary inquiry and that the document should be admitted as a numbered exhibit. I accepted Mr. Erickson’s submissions and the timeline was marked as Ex. 5. I will come back to my reasons for this ruling.

Analysis

The Law

[96] Although D.P. did not testify the principles set out in the decision of the Supreme Court of Canada in R. v. W.(D.)[^3]apply. In R. v. B.D.[^4] the Court of Appeal concluded at para. 114 as follows:

What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if - viewed in the context of all of the evidence - the conflicting evidence leaves them in a state of reasonable doubt as to the accused's guilt… In that event, they must acquit.

[97] For these reasons I conclude that the principles in W.(D.) apply to the evidence called by the Defence. If any of the evidence favourable to D.P. leaves me with a reasonable doubt then he must be acquitted. If that evidence does not leave me with a reasonable doubt, I must still assess whether the Crown has proven D.P.’s guilt beyond a reasonable doubt. However, in assessing this evidence, I am entitled to consider it in the context of all of the other evidence.

[98] I turn then to the law as it relates to the assessment of the credibility of V.. Although no longer a child by the time of trial, I must consider the comments of the Supreme Court of Canada as to the special considerations that should apply when considering the credibility of a child witness, given that the events V. described are alleged to have taken place when she was very young; at least as young as age seven. Although the credibility of every witness that testifies must be carefully assessed, the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of children. As McLachlin J. (as she then was) stated in R. v. W.(R.)[^5]:

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.…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.

[99] Similarly, in R. v. B. (G.)[^6], Wilson J. stated:

…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… 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.

[100] Finally, in R. v. F. (C.C.)[^7], Justice Cory, in reviewing these and other decisions in the context of a s. 715.1 application, acknowledged that trial judges do not expect children to be perfectly articulate and know that the examination-in-chief of a child will not precisely match the ideal narrative form of an adult’s testimony. He stated:

a. Children are vulnerable victims and for a number of reasons their testimonial capacities may range from a complete inability to articulate recalled events to an ability to recount some but not all of the events. (at para. 42)

b. A skillful cross-examination is almost certain to confuse a child, even if she is telling the truth. That confusion can lead to inconsistencies in her testimony. Although the trier of fact must be wary of any evidence which has been contradicted, this is a matter which goes to the weight which should be attached to the videotape and not to its admissibility. (at para. 48)

[101] In summary, the fact that V. was not able to recount precise details and communicate the when and where of each incident with exactitude, does not mean that she has misconceived what happened to her. The court’s common sense approach to the evidence of children does not mean, however, that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases.[^8] Although the Crown’s case depends almost entirely on the evidence of a child, it remains the obligation of the Crown to prove the offences alleged against D.P. beyond a reasonable doubt.

[102] In this case V. did not disclose these allegations earlier, even though she was in a safe environment with her mother where she would have no reason to be afraid. She testified that D.P. told her not to tell her mother and that if she did he would kill her. Although I will consider the delay in reporting these allegations, particularly as it is tied up in the defence theory that V. fabricated these allegations in order to assist her mother in ensuring that R. would live with them, it must be remembered that the significance of V.’s failure to make a timely complaint about the allegations of sexual assault must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons react to acts of sexual abuse. There is no inviolable rule on how people, who are the victims of trauma like a sexual assault, will behave. Reasons for delay are many.[^9] As McLachlin J. stated in R. v. W.(R.),[^10] “victims of abuse often in fact do not disclose it, and if they do, it may not be until a substantial length of time has passed.”

Credibility and Reliability Assessments

(a) S.G.

[103] The fact S.G. was not cross-examined does go to the weight her evidence should be given. There would no doubt have been cross-examination on the topic of what she knew of V.’s allegations as well as other questions related, for example, to her leaving V. in the care of P.P. and about where she was living and whether V. was in school when she went to Trinidad. However, I generally accept her evidence as credible and reliable.

(b) V.

[104] Turning to the evidence of V., much of her evidence was given by her adoption of her videotaped statement. Before dealing with her credibility as a witness generally, I should say here that Officer Patterson and Ms. Jayachandran, who took the statement, did a very fair job in questioning V. and Mr. Erickson did not suggest that at any time either of them did anything that would undermine the weight to be given to her evidence.

[105] In the interview V. presented as shy and reluctant to talk about these allegations. She was told of the importance to tell the truth and confirmed that she understood that and agreed to do so. It was only once Ms. Jayachandran was questioning her that she began to be responsive to the questions. I expect it helped that Ms. Jayachandran was a woman and she had spoken to her the day before.

[106] Although the demeanour of a witness is not to be given the significance that it once was, the appeal courts still consider, that as the trial judge who has had an opportunity to observe the witnesses, that I have an advantage in assessing credibility. In this case, I do find that the manner in which V. gave her evidence enhanced her credibility. She showed no hostility towards Mr. Erickson and was responsive to his questions. V.’s demeanour both on video and at trial did not suggest that she had any animus towards D.P. although by the time of trial R. would have been living with V. and her mother for some time so any motive she had in that regard would be moot.

[107] There is, however, the delay in V. reporting her allegations of the shower incident. Although, as I have said, nothing should be inferred solely from this additional delay, V.’s explanation that she did not want to tell a male officer about this; Officer Patterson, does not make sense in light of the fact that she had a meeting with Ms. Jayachandran before the First Statement, Ms. Jayachandran was present when she gave that statement and in fact she was the one who asked questions about the nature of the allegations. I expect that at the time V. had also been reminded that she had met Ms. Jayachandran although I accept that she may not recall that now.

[108] V. did give credible evidence about why she would not have made any disclosure of these allegations which would at least apply while D.P. was still living with them or at least staying in her home with them regularly. She testified that he told her not to tell her mother and that on one occasion he told her that if she told anyone he would kill her. This would be perceived as a real threat by a young child and Mr. Erickson did not suggest otherwise.

[109] V. was not asked why she did not disclose these allegations to her mother after D.P. moved out, which was sometime before her disclosure to Ms. Waterman and so I have not considered that either. I, therefore, find that her delay in reporting these allegations in and of itself is not relevant and does not undermine her credibility. When I come to her evidence, I will examine the issue of alleged motive.

[110] The evidence of S.G. and P.P. is that D.P. was not living with S.G.. V. testified that he was. I do not see this as impacting her credibility. I accept that from the perspective of a child she may have mistakenly believed that D.P. was living with them rather than just visiting and staying overnight a lot of the time.

[111] As for internal inconsistencies in V.’s evidence, most are minor. V. was, for example, inconsistent in her evidence as to when D.P. started being mean to her but given the law I have already referred to, some inconsistencies are to be expected as V. was recalling events that she alleges occurred when she was only seven years old. She did not give her first disclosure of these events until June 2012, when she was 11 years old, and did not testify until she was 16.

[112] There are two significant internal inconsistencies which I have to consider. First, there is the failure to disclose the incident of sexual intercourse and second, there is the fact that V. testified at trial that it at least happened more than once. I expect had the Second Statement been available in audio that she probably said that it happened often in the manner Officer Howell interpreted her evidence. At trial, however, she was firm that it only happened once. Given the significance of this allegation, as compared to the others, I am concerned that the shower incident was not disclosed earlier and that there was some confusion over whether it happened only once when her mother was in Trinidad or many times. I am also concerned, as I will explain, that V.’s evidence about this shower incident was influenced in some way by the counselling of Ms. Liu and the timeline document.

[113] Even if V. was referring to other sexual touching, for example, speaking of touching by D.P.’s hands instead of his penis, her evidence is inconsistent on how often it happened and for what period of time. Based on what V. said in her Second Statement that would mean that the sexual touching with his hands occurred very regularly over a period of three to four years. This is significantly at odds with her evidence at trial which referred to only four or five discreet incidents. For these reasons I do have some concerns about the reliability of V.’s evidence on the issue of the shower incident.

(c) P.P.

[114] I found P.P. to generally be a credible witness and her evidence is important as it amounts to a complete answer to the allegations made by V. to the extent that she testified that the sexual abuse occurred while her mother was at the funeral in Trinidad. That would apply to the shower and book incidents. I am somewhat troubled, however, by P.P.’s sensitivity to being challenged and her comments that D.P. could not make her tell a lie. Although I would not conclude that she received information in breach of my order excluding witnesses, I expect that she did know what the expected evidence of V. was and how her evidence fit in with that probably sometime after the preliminary inquiry and in advance of trial. I also find that she would naturally have some bias in favour of D.P. as his aunt, although it is her husband who is related to him by blood. I would not conclude that she would perjure herself to protect D.P.

[115] Although there was some uncertainty on the part of P.P. as to when she took care of V., I do not find that significant. S.G. had some confusion about timing and where she was living as well. It is significant that both V.’s mother and her aunt confirm that V. went into the care of her aunt while her mother was in Trinidad. This was something that V. did not remember. I, therefore, find that P.P. was also a reliable witness.

(d) C.S.

[116] C.S. also has a bias, of course, as D.P.’s fiancé but the evidence that she gave is consistent with the evidence from the Family Court documents. S.G. swore that after August 2011 she only saw R. two or three times over the next ten months. Although I realize that C.S. thought that S.G. saw R. a little more often it is significant that they both agree that when the charges were laid, R. was actually visiting S.G. I find that generally C.S. is a credible and reliable witness.

(e) Officer Howell

[117] Neither counsel challenged the credibility of Officer Howell’s evidence. There are some issues as to reliability only because she was not able to make verbatim notes of the Second Statement which is understandable. I found her to be a fair and credible witness.

(f) Angela Jayachandran

[118] Ms. Jayachandran was a fair and credible witness and neither counsel suggested otherwise.

(g) Grace Liu

[119] Based on her demeanour, I found that Ms. Liu was a reluctant witness particularly when it came to questions about the timeline document then marked as a lettered exhibit. She had made no effort to review her file in advance of testifying and, for reasons I will come to, I have some concern about her credibility as a witness.

Findings of Fact

[120] With these general comments in mind I turn to the issue at hand; has the Crown proven these allegations made by V. beyond a reasonable doubt.

[121] Although V. does not limit her allegations to the time when her mother was in Trinidad, I am concerned about the fact that she has no recollection of her aunt taking care of her. I find as a fact that that occurred as it accords with the evidence of both her mother and P.P. The issue is whether or not D.P. had her with him during this period of time. Although I would not say that I firmly believe P.P. on this point, her evidence does raise some doubt in my mind. It is true that, contrary to the evidence of S.G., she did not take V. to school and I agree with Ms. Pecknold that one might expect that S.G. would have told P.P. where V.’s school was. They both agree, however, that P.P. was at least initially the one to care for V.. It seems a strange thing for P.P. to have lied about; if she was not being truthful she could have said that she took V. to school and picked her up. V. was young at the time and certainly school would not be considered as important as if she were in a higher grade and it was not a long period of time that she would have missed school.

[122] The evidence of P.P. raises a reasonable doubt in my mind that D.P. would not have had an opportunity to sexually assault V. while her mother was away as she has alleged. He would, however, have had an opportunity to do what V. alleges in the laundry room incident and the video incident so this finding does not end my deliberations.

[123] Even if I assume that V. is correct and that she spent the time in the care of D.P. and that he did have an opportunity to sexually assault her as she alleges, my main concern with V.’s evidence is that she did not disclose that D.P. had actually had sexual intercourse with her until after her counselling sessions with Ms. Liu. This was a very significant additional new allegation from what V. had told Ms. Waterman, Ms. Jayachandran and the officers who took the First Statement. In fact, as I have deliberated on this decision, it is the main problem in the Crown’s case that I cannot overcome.

[124] Considering the content of Ex. 5, the evidence of V. and the evidence of Ms. Liu, I find that Ex. 5 was prepared by Ms. Liu in the presence V. and that it was then given to V., which is why it is not in Ms. Liu’s file. I find that Ex. 5 is the timeline document that V. referred to when giving evidence at the preliminary inquiry. Given there is no suggestion that the defence manufactured this document I have no doubt about the authenticity of this document. I note as well, given the length of time this case took to complete that if Ms. Pecknold really had any doubt about this she could have easily ascertained from the Crown who conducted the preliminary inquiry whether Ex. 5 was the document produced by V. at the preliminary inquiry or not. In particular I find that Ex. 5 was prepared by Ms. Liu with V. and that it was intended to assist her in giving evidence at the preliminary inquiry in the manner that V. testified to. There is no other conclusion to come to on the evidence.

[125] Considering all of Ms. Liu’s evidence I find that her reluctance to admit authorship of the timeline that was marked as Ex. 5 and her alleged inability to recall it at all had more to do with the fact that she was concerned about how this type of preparation for the preliminary inquiry would be perceived by the court. Her failure to remember this document pre-empted any questions about what it meant. Certainly her failure to recall the document and explain how it was prepared did nothing to alleviate my concerns from a simple review of the timeline and the fact that it was reviewed with V.

[126] I absolutely do not accept Ms. Pecknold’s submission that Ex. 5 is of very little probative value. What concerns me is that the timeline is tied in with the counselling by Ms. Liu and V. was clear that Ms. Liu helped her prepare for the preliminary inquiry and gave her “tips”. The timeline makes it clear on its face that if D.P. only touched V. over and under her clothing, which is what the police knew, the likelihood of D.P. going to jail was “low”. The likelihood of that increased as the seriousness of the allegations rose and those are stated to be “he took his clothes off”, “he took clothes off”, “showing naked people videos” and ended with “privates inside your privates”. At the top of the timeline or scale the likelihood of “jail” and “staying away from kids” and “being alone w/kids, R.” is shown as “high”.

[127] As a result of these concerns I simply cannot be certain that V. was not influenced to make up a more serious incident; namely the shower incident, in order to increase the likelihood that D.P. would go to jail and have to stay away from R.. The fact that V.’s mother and V. herself wanted R. to live with them and not D.P. increases my concern. That was certainly the immediate result of these allegations as D.P. was arrested a couple of days later. Although I agree with Ms. Pecknold that S.G. did not seek an order formally changing the order of Spence J. until after V. alleged that D.P. sexually assaulted her, she was able to keep R. with her after he was arrested so there was no immediate need to seek such an order.

[128] I am not saying that I conclude that V. was influenced to make up this evidence or that she did so intentionally. However, in light of my concerns, her evidence about the shower incident does not persuade me beyond a reasonable doubt that D.P. had sexual intercourse with her on one or more occasion. Considering the rest of V.’s evidence, and her evidence about the other incidents, although in my view her allegations as disclosed in the First Statement could reasonably be true, given my concerns about her evidence, her evidence overall does not meet the very high onus on the Crown to prove these alleged offences beyond a reasonable doubt.

Disposition

[129] For these reasons I find that the Crown has not proven these charges beyond a reasonable doubt. As such the Lost Evidence application is moot.

[130] D.P. would you please stand. For the reasons I have given, I find you not guilty of all of the charges.

SPIES J.

Released: December 13, 2016

Edited Decision Released December 20, 2016

CITATION: R. v. P., 2016 ONSC 7795

COURT FILE NO.: 13-30000495-0000

DATE: 20161213

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

D.P.

Defendant

REASONS FOR JUDGMENT

SPIES J.

Released: December 13, 2016

[1] Ms. R. told me that she preferred that I refer to her as V. during the trial and so I will refer to her that way in this judgment.

[2] Mr. Erickson stated that he received this document as part of the disclosure and Ms. Pecknold did not challenge this statement.

[3] 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

[4] 2011 ONCA 51.

[5] (1992), 1992 CanLII 56 (SCC), 74 C.C.C. (3d) 134 at pp. 143-144.

[6] R. v. B.(G.) (1990), 2. S.C.R. 30 at pp. 54-55 .

[7] (1997), 1997 CanLII 306 (SCC), 120 C.C.C. (3d) 225.

[8] R. v. B.G., supra, at p. 219, R. v. W.(R.), supra, at p. 143.

[9] See R. v. D.D. (2002), 2000 SCC 43, 148 C.C.C. (3d) 41 at paras. 59, 63 and 65.

[10] Supra at p. 145.