ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
A. Grady, for the Crown
- and -
E.G.
R. Richardson, for the Defendant
HEARD: October 3-11, 2016,
at Toronto, Ontario
Michael G. Quigley J.
Reasons For Judgment
1E.G. is charged with sexually assaulting C.G. The charges include one count of sexual touching of C.G. when she was a person under fourteen years of age (Code, s. 151) and three counts of sexual assault (Code, s. 271). The first three charges relate to a time between 1998 and 2001 when C.G. was alleged to be under fourteen years of age, and the last to an episode in September of 2013 when C.G. was twenty-seven years of age. E.G. elected trial by judge alone. He pleaded not guilty to all counts.
2At this trial, the complainant testified for the Crown. The defendant testified in his own defence and in addition, C.G.’s mother, E.M., was called to give evidence for the defence.
3There are two separate issues in this case that arise from the alleged sexual assaults having taken place in two separate time periods. The issue relative to the three earlier offences alleged to have taken place between 1998 and December 31, 2001 is whether the events alleged by C.G. against E.G. ever took place. The defendant denies that those events ever occurred.
4In between these two periods, however, it is admitted that C.G and her “Uncle” E.G. had a sexual relationship that lasted for eight to ten years although that relationship is not the subject of charges in this case. As such, there is no dispute that C.G. and E.G. had sexual intercourse on September 11, 2013; the occurrence to which the last charge relates. The issue on that charge is whether the sexual intercourse was consensual. E.G. claims it was. C.G. claims it was not.
5In contrast, based on the charges as laid, C.G. would have been under fourteen years of age at the time of the first three alleged offences, so consent was not legally possible under the law as it read at that time. In light of the defendant E.G. having testified at this trial, while the issues are different between the two sets of offences, in determining whether the Crown has proven the offences to the criminal standard, I am required to apply the R. v. W. (D.)[1] methodology of analysis to the whole of the evidence before the court.
Background
6The complainant, C.G., is now thirty-one years of age. She was born in St. Vincent on […], 1985. Her mother came to Canada when she was two years of age, so she lived with other relatives in St. Vincent until she also came to Canada when she was eleven and a half in the summertime in 1998. In addition to her mother E.M., her Aunt R. and her Uncles S. and E.G. had also been in Canada since she was two. The accused in this case, E.G., was known in his family as “S.” and C.G. called him “Uncle S.”. In terms of position in the family, E.G. is her grandmother’s brother, so he is an uncle to her mother E.M., and he is C.G.’s great-uncle.
7C.G. remembers E.G. from when they all still lived in St. Vincent. She was very young then, but she remembered that he visited their family home and that her aunts and uncles would get together and he would be there.
8When she first came to Canada, C.G. lived with her mother and other family members on B […] Road in Toronto. It was her Aunt R.’s house. She lived there for two to three years and then, when she was in high school, she and her mother moved to 1950 K[…] Rd. She would have been about fourteen to fifteen at that time.
9C.G. never lived with her “Uncle S.”, E.G. During the first period of these events, he was living in an apartment on P […] Avenue close to Riverdale with a girlfriend named A.1. She had a son named M…, who was four or five years old. C.G.’s aunt and her two sisters lived nearby, as well as her cousin V., who she referred to as “V”. It was a five-minute walk from V’s residence to E.G.’s apartment on P […] Avenue .
10The first interaction C.G. recalls with E.G. took place about three weeks after moving to Canada. On her evidence that would probably have been in August of 1998 when she was twelve, three months before her thirteenth birthday. He came and picked her up and took her for a drive to a local park. It probably was not the first time that she saw him after coming to Canada, but she could not remember for sure. She said they were sitting on the grass at the park. He asked her if she had a boyfriend in St. Vincent. She found it to be an awkward question, but does not remember what she said in reply.
11Then her Uncle E.G. gave her a big hug with his arms fully around her, and while he was doing so slipped one of his hands down to her breast. He had a hand on her shoulder and it slipped down across her chest. She thought he hugged her tightly so that he could feel her breasts against his chest. Then he drove her back home. She did not tell anybody about what had happened because she thought he was just being friendly.
12C.G. said the first sexual assault took place at E.G.’s apartment on P […] Avenue . She felt that this was not long after the episode in the park, and that she would have been twelve or close to her thirteenth birthday at the time. No one was home except E.G. and M.. She remembered M. coming into the living room while she was sitting on the couch, but that E.G. sent him to his room to play.
13After M. left the room, E.G. was sitting next to C.G. on the couch. He began touching her legs and he started to stroke his hands up and down her thighs. She was clothed at the time. He told her he wanted her to take her clothes off but she did not want to. He ignored her. She remembered telling him a few times that she would not take her clothes off, but then her clothes were off and she found herself in a position down on her knees facing the couch and he was trying to force his penis into her vagina. She remembered telling him that it hurt. She remembered that she was embarrassed and uncomfortable about taking off her clothes, but that she did so because he told her to and he was her uncle. He was behind her as he put his penis into her vagina. She did not remember whether he used a condom or whether he ejaculated inside her.
14After he was finished with her, she remembered sitting on the couch for a while but that she wanted him to take her home. She believes this episode took place not long after the incident in the park because she remembered clearly that as she was facedown on the couch, she was looking towards a window in the living room and she could see that there were still leaves that were green on the trees outside.
15C.G. testified that that was the “first time that she felt she was in a dark place.” She did not tell anyone because she was scared. She thought she had done something wrong. She felt lonely and was in that dark place “for a long time.” She said she felt like something had been taken from her, but that she did not know what it was. She and E.G. never spoke about that event.
16C.G. thought the second event took place about two months later, because she remembered it was starting to get cold. She and her cousin, “V”, were hanging out together on a weekend. She remembered having a cell phone at that time and that her Uncle, E.G., called her on her phone. He wanted to pick her up but she said no. He told her that he wanted her to come and babysit M. while he went to visit A.1, his girlfriend, who was in the hospital at the time. Although she did not want to go, V encouraged her to go and so she went. C.G. did not want to go because she felt uneasy. She did not want to tell V what had happened the first time she had been together with E.G. at his apartment on P […] Avenue . She had not told anyone. She knew, however, that he did not want her to come over to babysit and, as she expected, when she arrived at his apartment, A.1 was not there, and neither was M….
17E.G. led her into M…’s room where there was a bunk bed. He told her to take off her clothes. She took off her clothes because he asked her to. He told her to lie down on the bed and she did. She does not remember any conversation, but it is telling in her evidence that she recalls she was embarrassed as she took her clothes off, because she remembers having told E.G. that she was “spotting”; having a light period. He reassured her, however, that it would be okay. She lay down on the bed and she said he put his mouth on her vagina and began to perform oral sex on her. C.G. said he was licking her vagina. She does not remember saying anything and she does not remember him saying anything.
18She lay there as he then had sexual intercourse with her. He opened her legs and forced his penis into her vagina. She remembers that she was lying on her back and that her legs were up off the bed. He was bent over her and they were face to face, but she cannot remember everything with precise detail. She does not know how long the event lasted and she does not remember if he used a condom. She thought he probably ejaculated, but at a point in time he stopped. She got up and put on her clothes and she just remembered wanting for him to take her back to V’s house right away.
19She did not tell anyone. She was afraid to tell anybody, her mother or anybody else. As she expressed it, she was scared that she would get “licked” because she had done something wrong. She was afraid that her mother would beat her. She distinctly recalls that she was twelve or thirteen years of age at the time and had not yet reached her fourteenth birthday.
20The third incident also took place at the apartment on P […] Avenue . She is not sure how old she was at that time, but she thought it was within a few months of the earlier events. A.1 was not at home at the apartment although M. was. E.G. insisted that M. go to his room. C.G. remembers E.G. taking her to the bedroom that he shared with A.1, which was close to the washroom, and she remembered that it had a white mesh or netting over top of the bed. She remembers having sex with him in that room. She remembers standing up and lying on the bed with him on top of her, having intercourse with her. She also distinctly remembered that as he finished, he squeezed the two cheeks of her face to force her mouth open and then spit into her mouth. She remembers spitting it out. She has no recollection of what was said, however, whether he ejaculated or whether he used a condom. She does not remember what happened after the event was over, but knows that she did not tell anyone what had transpired.
21There were other subsequent incidents, one at her Aunt R.’s house on B […] Road in the basement in the laundry room. C.G. does not know how old she was, and she does not have a clear picture of the timeline but since she was fourteen or fifteen years of age when she moved out of B.[…], but it must have been at a younger age because she recalled that she was still living at the B.[…] house at that time.
22One of the cousins, R., had been playing in a local baseball game and members of the family went to a park to watch him. She had been down in the basement living room watching TV, but then her uncle, E.G., came down to the basement. She does not recall how they got to the laundry room, but he took her to the laundry room on the left of the downstairs living room where there was a big freezer. He forced her to bend over the freezer, removed her bottoms, and then he put his penis in her vagina as he stood behind her with her leaning on the freezer supported by her forearms.
23While he was having intercourse with her, they heard the sound of cars in the driveway and the baseball fans returning to the house. She said he sped up his intercourse so that he could finish and she said he ejaculated on her lower back. She put her clothes on quickly and went back to the living room, as did he, as if nothing had happened. She was insistent that this event was without her consent.
24C.G. claimed there was one other occasion that took place at the house on B.[…] in the living room when he asked her to put her hand on his penis. Her cousin A.2 was home at the time and she said she almost saw, because A.2 came around the corner from the kitchen as they were in the living room and E.G. had his penis out, but then as A.2 came in he put it away. She remembered A.2 asking them what were they doing and her Uncle, E.G., said “nothing.”
25The last of their sexual interactions took place over ten years later in September 2013. To have those events in context, however, it is important to know that C.G. and her “Uncle S.”, E.G., did have a sexual relationship that continued with regularity even if intermittently throughout those years, from some point in her teens up until she was twenty-seven years of age. That ongoing sexual relationship is admitted. It is not admitted whether or not it was consensual, but those events do not form part of these charges, except to establish the narrative context that leads into the last of the alleged sexual assaults.
26When she was about seventeen or eighteen, C.G. decided she needed to turn her life around. She had been in trouble with the law. She was living with the pastor of the U[…] Church in Ajax and his wife. She told the pastor’s wife about what the accused had done to her years before, but she had not ever told any other family members. She remembered that her mother called and asked her once if S. had ever touched her, and she had told her no, but then her mother insisted that she tell the truth, so she admitted that the answer was yes. Nothing was done about that time, however. Her mother would do nothing and did not want to get involved because she was not yet a landed immigrant, and was concerned for her own immigration status.
27As mentioned, leading up to that point in time, C.G. had been in trouble with the law on one occasion where she had pointed knives at her boyfriend. She was found guilty of assault and was put on probation. She remembers that she was on probation up until January 30, 2013, so it was sometime after that that this event arose and when she started to tell people about what happened to her earlier in her life. She remembered that she had told her probation officer and had also told the counselor she was seeing as part of her probation. She had also been fired from her job at Stitches for fraudulently giving E.G. discounts on clothing that he wanted to send back to St. Vincent, although no charges were laid.
28It appears that most of the sexual acts occurred on occasions where E.G. had C.G. come to his house to babysit children, but when she arrived, he would always have come home before his wife would get home from work, and there would be further sexual acts. On one of the last occasions, when she was about twenty-six, she said he came home from work early, with his then wife C. and her two children absent, and had sex with her in the washroom of his house, by that time on D[…] Road. When she was asked why she continued to go to his house and have sex with them, C.G. had no explanation to provide other than it just happened. She has no recollection of him having ever threatened her or having been angry or yelling at her.
29E[…] AvenuThe last sexual assault took place on September 11, 2013. On September 10, C.G. had been staying at her friend Felicia’s house. It was Felicia’s mother’s birthday. They lived close to Mason and Eglinton Avenue and she was staying there with them part-time. There was a little bit of a birthday celebration that evening. She said they split a bottle of wine between the four of them, being herself, S., F., and K., Felicia’s sister. She said they also smoked two marijuana cigarettes passed around between three of them. Her phone rang and it was E.G. calling her. She did not answer at first. He had also called her the day before and she had not answered. She said she was trying to avoid and ignore his calls.
30On this particular evening, however, after having their little birthday celebration, she decided nevertheless that she wanted to go and have a conversation with E.G even though it was sometime after 10 o’clock in the evening. She said she wanted to confront him about what has been going on in this long sexual relationship they had had. While he was family, and she felt he should have a second chance, she wanted to come out with what had gone on between them, and had been encouraged to do so by her counselor and her probation officer.
31C.G. acknowledged in her evidence that it was an unusual time to decide to do this, and that he would certainly have had an intention to have sexual relations with her, but that was not her intention. She wanted to confront him. He asked her to come and see him in the morning, but she said she was going to return to Ajax to stay at her mother’s brother’s house, her uncle Al, so she asked E.G. if she could come to pick her up that night because she wanted to talk to him. He was aware of her counseling because he had driven her to the counseling sessions on a couple of occasions.
32He picked her up from Felicia’s house just before 1:00 a.m. She remembers making a note in her cell phone of the time and that she wanted to confront him about what he had been doing with her. He picked her up in a champagne-coloured Lincoln. He took her to the shack that was located at the back of the property owned by his boss “J.”, a one-room building at the back of the property. He was staying there because he and C. had been forced out of their house.
33She had been to that shack a couple of times before. It had a bed, a small table on which a computer was located, and a chair that she said was like a pink stool. He played some music from his computer. She was waiting for the right time to confront him and was trying to build the courage to do so, but she found that she was not able to confront him. She simply told him that she wanted to go home. That was after she had been there for an hour or so.
34He had come to pick her up in his car, but told her he could not leave right then and could not drive her because he did not have any insurance for his vehicle. She remembers saying to him “if you could pick me up why can’t you take me home?”
35There was no toilet in the shack, but C.G. remembered having gone out into the yard to urinate. She remembers him saying to her “Come and get this dick.” Over the course of the night she slept with him on his bed for a couple of hours until 4 a.m. when she told him that she wanted to go, but he told her she had to wait longer. It was at this point that the final assault took place, when he started pulling her legs and trying to push her back onto the bed.
36She remembered she was wearing a blue and white jumper, a single piece outfit, that had elastic around the waistband and two straps over her shoulders. She sat on the edge of the bed and he pushed her back on the bed by pushing against her chest. He was trying to get in between her legs and tried to turn her over and she said she told him not to do this. He told her to relax or he would spank her. She remembers saying “No, you won’t” but she does not remember if he actually did. She testified that she kept trying to keep her legs together and to fight him while he tried to flip her over. She kept telling him that she did not want to do this. She thinks she used expletives to tell him that she didn’t want to have sex with him.
37At one point she stopped fighting because she did not want him to rip her clothes and find herself in the position were she would have to go home with damaged clothing. He took her underwear off. She said she was still telling him to stop, but he flipped her over onto her stomach as he was trying to put his penis into her vagina. She remembers lying there and crying while he was having intercourse with her while she lay facedown on her stomach on his bed. He did not use a condom and he did ejaculate. She remembers him saying that he was “going to bust in [my] pussy”.
38She does not remember much after that, but after E.G. dropped her off, she went upstairs and cried herself to sleep. She insisted she had never agreed to have sex with him. She was insistent that she never changed her mind and said yes, but acknowledged that she had also suffered no injuries. She felt like something had been stripped out of her.
39When she woke up, C.G. called her Uncle A.3 and talked to him about what had happened. She told him all of it. Her Uncle A.3 told her that E.G. needed to be dealt with, and she needed to call the police. Before she did, C.G. called E.G.‘s wife, C., and spoke to her. She claimed to have told C. what had happened and about their entire relationship going back to his abuse of her when she was a child and when their sexual conduct had first started. She had been staying at Felicia’s house that night, but the next morning, Felicia’s boyfriend was there and saw her crying. F. then came and asked her what was wrong and she told her the entire story. That was when C.G. called the police.
40A police officer came and took a statement from her and asked her some questions. She was taken to the hospital at Bridgeman and Queen and they did tests on her, performed a rape kit examination on her, and then she was taken to the police station where she gave a video statement.
41C.G. concluded her testimony by explaining to the court how she felt she had been hiding what has been going on from her family but that it was time to get it out and to let them know what happened to her. She acknowledged that she never confided in her mother about the events when she was a teen, but that she and her mother did not have a great relationship when she was growing up. However, she had told her mother during that time period about a similar problem, not as serious, with another family member, her cousin’s husband. At that time her mother indicated that she did not want to raise a fuss because her mother was not yet a landed immigrant and she was concerned that her immigration status would be compromised.
42C.G. acknowledges that she does not have an answer for why she told her mother about the one event with the other family member, but not about the more pervasive abuse from her uncle E.G. She also explained to the court that no one in her family is supportive of her in this process. She said they all take the position that “it does not have anything to do with them.”
Elements of the Offences
43The offences charged here each consist of several elements. The Crown must prove each of the elements of the offences beyond a reasonable doubt. For counts one, two and three, the Crown must prove beyond a reasonable doubt that the accused, E.G., knowingly and intentionally touched C.G. in circumstances of a sexual nature and had sexual intercourse with her when she was under fourteen years of age. If I find that the first three occurrences took place and if I find that C.G. was under the age of fourteen years at the time those offences are alleged to have occurred, then she would have been legally incapable of consenting, and so the absence of consent would be presumed as a legal matter.
44However, even if C.G. was not under fourteen years of age at the time of those offences, if I find that those events occurred, the plain fact is that there is no evidence of consent. The only evidence would be that of the complainant who testified that she did not consent. For his part, the defendant said the events never happened. As such, if I accept the evidence of the complainant relative to those three charges then the offences would be made out.
45In contrast, count four requires proof beyond a reasonable doubt that an act of non-consensual sexual intercourse occurred some years later, when C.G. was twenty-seven years of age. E.G. admits that act of sexual intercourse occurred, but testified it was consensual. So the issue of consent is the only live issue relative to the last count.
Assessment of Credibility and Reliability
46As is the situation here, in W. (D.), the Court was faced with two irreconcilable versions of events, both given under oath. In that case, according to the complainant, a sexual assault had taken place. The defendant testified that the events of which the complainant gave evidence never occurred. Here, the complainant claims that at least four assaults took place. The defendant here testified that none of the events that the complainant gave evidence about took place at the P […] Avenue Apartment or at the house on B […] Road.
47It bears repeating that the methodology in W. (D.) focuses on credibility. Under that test, if I believe the evidence of the accused that he did not commit the first three offences and that the fourth occurrence was consensual, then he must be found not guilty.
48However, even if I do not believe E.G.’s evidence, if it leaves me with a reasonable doubt about his guilt, or about the presence of an essential element of one or more the offences charged, then again he must be found not guilty of that offence or those offences.
49Finally, even if E.G.’s evidence does not leave me with a reasonable doubt of his guilt, or respecting an essential element of the offence charged, I may still only convict him of one or more of these offences if the rest of the evidence that I accept proves him guilty beyond a reasonable doubt. The burden of proof to establish the elements of the offence beyond a reasonable doubt lies upon the Crown.
50The evidence relative to the first three counts is that of C.G. as an adult relate to events that are alleged to have occurred when she was a child. C.G. claims she was under fourteen at the time that these offences occurred in 1998-2001, shortly after she moved to Canada from St. Vincent. It is obvious that C.G. had some absences of memory and uncertainty of the order in which the alleged sexual assaults occurred, and some holes and inconsistencies in C.G.’s evidence, but they are consistent with her recollection being derived from the events having occurred when she was a child.
51In contrast, C.G. was twenty-seven years old when she disclosed these events to her Uncle A.3, the morning after the last alleged assault, and he urged her to go to the police. She went to the police the same morning, gave her statement and provided a rape kit that establishes that the accused’s DNA was found in her vagina that morning. So it is clear that different principles apply to the consideration of the events that are alleged when she was between twelve and fourteen years of age, as compared to those that occurred more than ten years later when she was twenty-seven.
52The decision of the Supreme Court of Canada in R. v. W. (R.)[2], explains the standard that should be applied to the assessment of C.G.’s evidence relative to the earlier events. In that case, the accused was charged with indecent assault, gross indecency and sexual assault against three young girls, two of whom were his stepdaughters. As in this case, the complainants described the incidents under which the charges arose and the accused denied the allegations.
53McLachlin J., later C.J.C., first considered the approach that should be taken to the evidence of children following changes that were made to the Canada Evidence Act. She summarizes that we should adopt a “common sense” approach to the evidence of children that takes into account the strengths and weaknesses characterizing the evidence offered in the particular case. This is much the same as we do in assessing the evidence of adults. She then stated as follows at paragraph 26:
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 anew stereotypes potentially as rigid and 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. (my emphasis)
54I also note the decision in R. v. N.S.[3], where Hill J. thoroughly reviewed and summarized the evidentiary rules applicable to the assessment of the testimony of child witnesses at paras. 63-73. While the standard of proof cannot be reduced below that of cases involving adults, he cautions that where a credibility assessment calls for a search for some confirmatory evidence for the testimony of the complainant, it should be capable of restoring the trier’s faith in the complainant’s account of events, even if it does not directly implicate the accused or confirm the complainant’s evidence in every respect.
55Nevertheless, I also accept, as Doherty J.A. put it in R. v. J.J.R.D.[4], that a defendant’s evidence may be rejected on the basis of a reasoned acceptance of competing credible evidence of the complainant. He said:
The trial judge's analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant's denial because stacked beside A.D.'s evidence and the evidence concerning the diary, the appellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.
On the trial judge's reasons, the appellant knew why he was convicted. His daughter's evidence, combined with the credibility enhancing effect of the diary, satisfied the trial judge of the appellant's guilt beyond a reasonable doubt despite the appellant's denial of the charges under oath.
56Let me first deal with the issue of delayed reporting as it relates to the earlier occurrences and to the credibility analysis. There was no delay in reporting the final alleged occurrence. In R. v. D.D.[5], the Supreme Court adopted the principles that emerged from the experts who testified in that matter that in the case of children who are alleged to have been sexually abused, the timing of disclosure signifies nothing. Not all children will immediately disclose sexual abuse, and the timing of the disclosure depends upon the circumstances of the particular victim. At paragraph 65, Justice Major stated as follows:
A trial judge should recognize and so instructed jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of the complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.
57In this case, where there was no reporting of the sexual abuse relating to the earlier occurrences to the police authorities until more than ten years after they happened, no adverse inference may be drawn against the credibility of C.G. because of that delay in reporting, in and of itself. As the court said in D.D., it is simply one circumstance to consider in the factual mosaic of a particular case.
58In this case, C.G. did disclose another alleged assault by a different family member when she was younger. C.G. acknowledged she had no explanation why she disclosed that event, but not these events relative to this accused. To my mind, however, the fact that she chose to disclose the one incident, and not these incidents should not adversely affect the assessment of her credibility. C.G. simply has no explanation for why she delayed, though the inference that her mother’s landed immigrant status caused her to not want to push the incident relating to the other family member may have played a role in causing C.G. to not disclose at an earlier time. We simply do not know. However, C.G. did almost immediately disclose the final alleged occurrence, and at the same time all of the earlier occurrences, with considerable detail and memory that in my judgment defies recent fabrication, as these reasons will show. As a result, I do not find that C.G.’s credibility is adversely affected relative to the earlier events by their late disclosure only occurring when the final act of admitted sexual intercourse occurred that both acknowledge, but that she claims was not consensual.
59Turning to the assessment of C.G.’s evidence, her testimony was not without problems, particularly relative to the final event. Nonetheless, I generally found C.G. to be a credible and reliable witness. She was sincere and consistent throughout in her recall of the incidents. While there were some minor inconsistencies relating to the incidents that occurred when she was a child, I have considered those discrepancies in terms of peripheral matters such as time and location, and in the context of her age at the time of the incidents. It does not surprise me that C.G. may be uncertain of the particular order in which the first two events occurred, “scrambled” as she described it, given that she was only twelve or thirteen years of age at the time. Defence counsel highlighted minor differences in C.G.’s evidence in cross-examination, but for the most part, his submissions acknowledged that she was largely consistent in describing what happened to her so many years ago. Relative to the earlier events in particular, I found that C.G. was largely unshaken in cross-examination and displayed no significant inconsistencies.
60C.G.’s credibility was also enhanced by her plain willingness to accept and acknowledge factual matters that put her in a bad light, such as being fired from Stitches and her criminal record, albeit with a conditional discharge. However, she acknowledged that the allegations had involved a knife, even though the entry on the criminal record shows a discharge for a simple assault.
61C.G. also acknowledged that she consumed alcohol, and that there were concerns with her consumption of marijuana. She acknowledged that she smoked marijuana and consumed alcohol the night of the September incident. This enhanced her credibility, although relative to the September 11 event it did not enhance her reliability. She described that she had moved around in 2013 from place to place, and even before that, and said she was not proud of that, but it was how she was living her life at that time. She acknowledged having essentially perpetrated a fraud on Stitches when she worked there and conceded that she lost her job as a result.
62I found that C.G. was candid in her evidence before me. If something was put to her that she did not remember, she did not just blindly adopt it. She was careful and considerate in her responses both in chief and in cross-examination. She was making an effort to communicate an accurate account of events that happened years before. In one instance, when a detail from the third incident in E.G.’s room at P […] Avenue was put to her, she acknowledged, even after being shown the prior transcript, that she had said something about the sexual encounter on a prior occasion, but because she could not recall that now, she did not adopt it. She explained that she tries to block out those earlier events. She gave a careful considered reflection and admitted that she was telling the truth at the time that she gave that detail, but was unwilling to accept or adopt it before me because she could not recall. She did not expand on her evidence previously given, or exaggerate or embellish. She was not only careful but almost guarded in ensuring that she only testified to things she remembered.
63Even if the timing may be confounding, I also accept that C.G. was sincere and candid in describing her purpose for going to E.G.’s shack, as she described after midnight to confront her uncle. She very candidly said that she knew it sounded like the wrong time, and that it might be hard to understand why she would do that, especially since she knew that the accused wanted to have sex with her on that September 11 night, but in her mind, she felt that it was the opportunity that she had been waiting for. However, the concern here is not with her candor, but with the reliability of her evidence of how the events that night transpired given that she had consumed marijuana and a number of drinks.
64However, there was equal candor but an absence of any significant reliability issues relative to the earlier events, and certainly she was not under the influence of either marijuana or alcohol when those events transpired. So in summary, relative to C.G., I accept that she was a sincere and largely credible witness relative to all of the allegations, but as these reasons show, I have found there are reliability issues relative to the September 11, 2013 events that are not at all present in respect of the three or four earlier events.
65Turning to the credibility assessment of E.G., it is noteworthy that in many ways C.G.’s evidence is corroborated by the evidence of the accused, as defence counsel acknowledged. The three visits to the P […] Avenue apartment are corroborated although both acknowledge that there was some other minor fourth visit, where E.M. was present, whether it was a barbecue or not. Babysitting for M. was agreed by both to be the reason for the second visit to the P […] address. E.G. confirms that there were bunk beds in M.’s room, and he confirmed the presence of the white mesh canopy, probably a mosquito net, in the bedroom E.G. shared with A.1. E.G. confirmed that A.1 was often sick around that time, and he confirms the drive to the park in the green car that preceded the first actual assault.[6] The idea that M. would often wander out of his room and have to be directed back into the room is confirmed. The basement in the B.[…] address; the layout and the location of the freezer are both confirmed. E.G. also confirms that C.G. babysat for him and his wife, C., at his D[…] Road address. He also confirms that leading up to the September 10-11 incident, E.G. picked up C.G. from Felicia’s house and that C.G. had been staying at that address.
66E.G. also confirms numerous aspects of the elusive character “J.”, who owned the property where the shack was located: that J. gave C.G. a job cleaning his house next door; that E.G. was upset that J. had shown C.G. the shack, given that he had his personal items there; that J. rented out places around the city; and that J. had a garden where C.G. said she went to urinate since there was no washroom in the shack, also confirmed. E.G. also confirmed that he refused to drive on the road again after picking her up on the evening of September 10 based on the fact that he did not have insurance because his license had been suspended.
67C.G. described how E.G. seemed angry following the September incident, and E.G. agreed he was angry, albeit for different reasons. Both used the “bust in my pussy” phrase with respect to the September incident. And again, both confirmed that a call was made to E.G.’s wife the day following.
68Crown counsel argued that any aspect of E.G.’s evidence that was not corroborated by the evidence of C.G. should be rejected entirely, given the obvious changes that occurred in E.G.’s evidence between what he said in examination-in-chief as compared to his cross-examination. It is true that E.G. had some linguistic and accent-related problems in testifying, but much more important were the very long pauses that regularly punctuated E.G.’s testimony before he would answer many of the questions put to him in cross-examination. That did not occur in his examination-in-chief. It actually got to the point where I waited for what seemed like minutes before he answered a question, and asked him several times whether he was going to answer the question that had been asked. It was clear to me that those long pauses reflected that E.G. was not being forthright. It plainly showed his efforts to avoid answering the question, or more disconcerting, taking the time to think about what the “right” or “helpful” answer would be to the questions that had been posed.
69Several examples of the changes in his evidence make the point:
(i) E.G. acknowledged that when A.1 was sick he would look after M.. Yet later when the question arose of when M. was present at the apartment or not, E.G. said that basically M. was hardly ever at his house and that he was always with his grandma.
(ii) E.G. tried to detach himself from C.G. and their relationship in much of his evidence, particularly when she first came to Canada. When any suggestions about the relationship were put to him, or it was suggested that there was a close relationship, he denied it completely, or contradicted the same evidence if he thought it advanced his position. When asked about his relationship with C.G., the accused said, “They never talked about friends. They never talked about school. He didn't know anything about a boyfriend.” Yet in stark contrast, when talking about what he describes as the first actual sexual encounter, he says that C.G. came to him upset over a fight with her boyfriend. That change in chief to cross demonstrates both his unreliable recall of events and also strongly suggested to me that the story was fabricated as he went along and that he could not keep his story straight.
(iii) When questions were asked that implied a different answer, the original answers changed because he could not remember what he stated previously. On something as simple as whether C.G walked herself home from P […] Avenue or was walked home, initially he testified that C.G. walked herself home but in response to a different question in cross-examination, E.G. recalled specifically that both he and M. walked C.G. home. It is not a substantively material point, but highlights that when E.G. wanted to provide a favourable answer that would distance him from the allegations, he had the ability to recall with precise detail, but at other times he had no detail at all.
(iv) E.G. recalled the park incident but his characterization was entirely innocent, and he could not even acknowledge the possibility that he might have hugged C.G. on that occasion. Yet he can and did recall the specific fact that within days of C.G.’s arrival in Canada, he was hitting her on the back of her head in a playful way, as an uncle and family member might do, and yet he was adamant that he did not hug her. He definitively said he never hugged her at the park, although he acknowledged he may have hugged her upon her initial arrival to Canada. But, I found this to be an attempt to completely deny C.G.’s recollection of the park incident, in which he will not even allow for the possibility of a hug between two persons, family members, who had a prior relationship. And that incident, in my view, also evidences his first advances and efforts on his part to groom C.G. for what was to follow.
(v) E.G. refused to acknowledge any opportunity that could confirm aspects of C.G.’s evidence about the incidents: he was adamant that he had never been alone with C.G. in the basement of the B […] Road home. But this was in the face of him agreeing he did not take steps to ensure that they were never alone. I find it to be implausible and stated to avoid a possibility that they ever were, because it could lead to the conclusion that they were in the basement at some time as C.G. described. Even E.M, C.G.’s mother, acknowledged that there were times that C.G., E.M. and E.G. were in the basement together or in the living room there together. E.G. was willing to accept that they were alone together in the upstairs living room, but never in the basement, because he needed to distance himself from that location where one of the assaults took place.
70Defence counsel described E.G.’s evidence about his claimed “first” sexual encounter with C.G., sometime after the alleged initial events that he denies, as being candid. However, I find, regardless of whether it puts him in a good or bad light, that his evidence makes no sense and I reject it. E.G. claimed that there had never been anything sexual between himself and C.G. and that she came by in the morning, at 11 a.m., and he was there because he did not have to work that day until 12:30. He testified that she came by because she was upset about an issue with her boyfriend; a boyfriend E.G. denied knowing about. He claimed she had been drinking, and all of a sudden starts touching his penis over his clothes and this leads to sex. He paints C.G. as the seducer that he initially rejects, but with whom he ultimately agrees to engage in sex after she persists.
71E.G. testified in-chief that the incident at D […] Avenue happened after he had lived there for three years. When pressed on the significance of the three years, however, or whether it was possible it could have happened at any time in the prior seven years, he acknowledged that could have been true. He ultimately acknowledged that he did not know how old C.G. was when they first had sex.
72E.G. believed that at some point he had been informed of her age “at a barbecue” and told that she was “about fourteen years old”. But when pressed on whether he learned this information before or after the two had had sex, the question had to be asked several times, and there were very long pauses before he answered that it was afterwards. But then he went on to say that he thought she may have been eighteen or nineteen the “first” time that they had sex. This explanation is also entirely implausible. It is disconcerting because in the end it was clear from E.G.’s evidence that he never actually knew C.G.’s age. He acknowledged starting a sexual relationship with C.G. at “some point years ago”, clearly at a time when she was a young person, but he was unclear exactly when he was living at the D […] Avenue apartment and ultimately he had no idea how old she was the first time he acknowledges they had sex.
73Finally, returning to the earlier incidents alleged, E.G. was very careful in his testimony to say that C.G. was accompanied on all of the visits to his P […] Avenue apartment, even on the babysitting occasions when he said that C.G. was to babysit by herself. He was careful to note that, however, V came with C.G. on that occasion, ensuring that there is no opportunity at the P […] Avenue apartment where the two of them were alone together.
74I could, but do not intend to, review further difficulties with E.G.’s evidence. It will suffice to state that while I accept his evidence that concurs with that of C.G.’s, I reject his evidence relative to the earlier incidents in its entirety. It does not leave me with a reasonable doubt relative to the childhood sexual assaults. I also reject much, if not most, of his evidence relating to the September 10-11, 2013 incident, but there are different issues that arise relative to that incident that are discussed further below.
Findings and Disposition
75The issue relative to counts one, two, and three in this case is whether they ever happened. The issue relative to count four is whether the sexual intercourse that occurred between C.G and E.G in the early morning of September 11, 2013 was with consent or without consent. Both of those issues fall to be decided based on the credibility and the reliability of the evidence of the complainant, C.G., and the credibility and the reliability of the evidence of the defendant, E.G. Because of the different issues that are the focus of those two different sets of charges, I choose to deal first with the charge relating to September 11, 2013 and will then turn to deal with the evidence relating to the first three charges.
76Having considered the whole of the evidence, I find that I am unable to determine with certainty exactly what happened between C.G. and E.G. on September 10-11, 2013. I accept C.G.’s evidence that she had reached a decision to confront E.G. about their ongoing sexual relationship, even if the timing was unusual. I accept and observe, as she herself acknowledges, that it was an odd decision to choose that particular night as the right time to confront a man who wanted nothing of her but sexual self-gratification for himself and who controlled her for many years, given she had possibly had several vodka drinks or at least a number of glasses of wine and had been smoking marijuana. I have no doubt that when the phone calls between C.G. and E.G. took place that night, he wanted to have sex with her, as he had for many years, but C.G. intended to confront E.G. with their relationship and with her damaged self-worth owing to their ten-year sexual relationship at his behest, and that she intended to bring it to an end.
77The difficulty I have had with their final encounter, as I have felt it since the end of the trial, was how to be certain, regardless of C.G.’s protestations of intent, that I could be satisfied beyond a reasonable doubt their last sexual encounter was without her consent, given all of the circumstances. As indicated, I accept that the confrontation and an ending of the relationship was her plan, but she acknowledged that once in E.G.’s company, her resolve diminished and she could not confront him as she had planned. On her evidence, that was her plan, but on the evidence it is also likely that she was at some stage of inebriation, even if not as intoxicated as E.G. sought to portray her. She acknowledged that she got into his bed, although she claimed it was just because she had to sleep, regardless of whether intoxicant-induced or otherwise.
78I also have no doubt that she felt the emotional pain she described after the last act or acts of sexual encounter occurred, after E.G. delivered her back to Felicia’s home, and she cried herself to sleep. I accept that her reporting to her Uncle A.3 that morning that led to the final disclosure of the entire history to the police was sincere, credible and honest, as she saw it, as was her phone call to E.G.’s wife, C., to finally let her know all that had been ongoing for so long.
79Despite these certainties, I have remained unsure of whether the final act of sexual intercourse itself, at the very time it transpired between C.G. and E.G., and with all of the personal and emotional history that preceded it, was or was not consensual at the moment it occurred.
80I accept that it probably was not, and I generally accept C.G.’s evidence over that of E.G’s relative to this episode, but I have remained uncertain whether, at the actual moment when their sexual interactions occurred on September 11, 2013, in the early morning hours, that they were non-consensual beyond a reasonable doubt. Despite C.G’s original plans, having regard to their prior relationship and her likely level of alcohol consumption that evening, I have found myself unsure that an absence of consent is proven on the whole of the evidence beyond a reasonable doubt.
81I have been concerned that C.G.’s description of the act as non-consensual may have been a morning-after interpretation of what transpired and what she wanted to transpire between them, but that may not reflect exactly what happened. I have that uncertainty given that C.G. admitted she could not follow through with her original plan, and that she did choose to get in bed with E.G. as she had throughout the prior ten or more years; an odd fact given her original intent and knowledge of his manipulative desire to have controlled sex with her whenever an opportunity presented itself. At the end of the day, I simply find that I am unable to conclude beyond a reasonable doubt that the Crown has proven an absence of consent. I think it is unlikely that that occurrence was consensual, but I remain unsure. As such, it follows under the test in R. v. W. (D.) that E. G. must be acquitted of count four.
82With respect to the earlier charges, embraced in counts one, two and three, however, I have had no similar absence of certainty. I am well-satisfied beyond a reasonable doubt that E.G. perpetrated these sexual assaults against C.G when she was a person under fourteen years of age, and in circumstances where he, as a family member with whom she had a relationship going back to St. Vincent when she was very young, occupied a position of trust relative to C.G. that he violated and abused in committing those earlier sexual offences against her.
83In addition to my acceptance of the evidence of the complainant relative to those events and the reasons set out above for why I have rejected the denial evidence of the accused, there were four specific pieces of evidence that I found could not have been fabricated. I have instead found that they are parts of the testimony of the complainant that are there because they were specifically recalled by her, recalled like a picture because they reflect the truth of what happened. These aspects of C.G.’s evidence have reinforced my faith in the truth of C.G.’s account of what transpired:
(i) Relative to the first sexual assault that took place at E.G.’s apartment on P […] Avenue not long after the episode in the park, C.G. was certain that she was twelve or close to her thirteenth birthday at the time. No one was home except E.G. and M.. She distinctly recalls M. being sent to his room to play and then the action commenced. She remembered that she was embarrassed and uncomfortable about taking off her clothes, but that she did so because he told her to and he was her uncle. Once she removed her clothes on E.G.’s direction, notwithstanding her objection, she found herself in a position down on her knees facing the couch as he forced his penis into her vagina. She remembered telling him that it hurt. He was behind her as he put his penis into her vagina. Importantly, she testified that she believed that this first sexual assault took place shortly after the incident in the park. How did she know that for certain? She knew because she remembered clearly that as she was facedown on the couch, she was looking towards the window in the living room and she could see that “there were still leaves that were green on the trees outside.” This also is a vivid recollection that could not have been made up. It shows that it was not yet late fall when all the leaves would have fallen, and equally establishes that the event would have happened before her birthday, which is November 15, and by which time the leaves have changed colour, and generally fully or at least partially fallen from the trees in the Toronto area.
(ii) C.G. described specifically how M.’s bedroom had bunk beds. She described how he told her to take off her clothes, that she did not want to, but that she did as she was told because he asked her to and he was her uncle. He told her to lie down on the bed and she did. She does not remember any conversation. However, an exceptionally-telling detail is that she recalled being embarrassed as she took her clothes off because she remembers having told E.G. that she was “spotting”; her exact words, having a light period. She had a specific recollection of this important detail; a detail that I find could not have been fabricated. He reassured her, however, that everything would be okay. She lay down on the bed and he put his mouth on her vagina and began to perform oral sex on her. C.G. said he was licking her vagina. Then he had intercourse with her. She had a distinct memory of her leg hanging off the bed as this was happening. There was no embellishment, no suggestion of force. He told her to do something and she did it. She told him she did not want to do something, but he insisted, and she did what she was told.
(iii) The fact that C.G. knew about the white netting over E.G.’s bed that he shared with A.1 in the bedroom of the apartment on P […] Avenue was put to E.G. He confirmed that there was white netting and white sheets in the bedroom. E.G. tried to suggest that C.G. learned about that detail from one time that he recalled her walking through the apartment, although he could recall little else of that event or why C.G. would have been walking through the apartment going room to room, or indeed, how he would have known she was walking from room to room. It is true that actual “white netting” was never previously described by C.G., but she is clear even in her prior testimony that C.G. very distinctly recalled something white in the bedroom. She was not sure what, but then at trial she was able to describe what it was that she recalled as being white, and E.G. confirmed the presence of the white netting as well as white sheets in that bedroom. I find it implausible that C.G. would recall white netting from one quick visit when E.G. claimed she was walking around the apartment. The suggestion that C.G. saw something white and went into the bedroom is implausible and was never put to her. I accept that she remembers the netting, because as she described it, E.G. had sex with her in his bed and that is when C.G. observed the white netting and sheets.
(iv) With respect to the incident in the basement at the house on B[…], C.G. has a distinct memory E.G. taking advantage of the situation when all of the other occupants of the house had gone to the local park for a baseball game, but then of cars and people returning home while E.G. is copulating with her from behind as she is bent over the freezer. She recalls the sounds of the car doors opening and closing, and of footsteps approaching the house. And against that detail, she recalled specifically that E.G. finishes the intercourse quickly, ejaculating on her back while she was still bent over the freezer. Once again on that occasion, he told her to do something and she did it, but she also specifically recalled that only her bottoms were off or down her legs as he was having sex with her. I find it stood out in her mind because the event happened as she described.
84These crystal clear recollections of the complainant serve as a useful segue into my findings relative to the timeline of these earlier offences. I am satisfied that the evidence establishes beyond a reasonable doubt that C.G. was under fourteen when the sexual assaults began. I acknowledge that there was a question asked that inferred the answer that she gave suggested that the incidents happened within a year of when she first arrived in Canada. C.G. acknowledged that a reading of the prior transcript made it sound like that was what she was describing, but she was very clear and persisted that she was twelve years old when E.G. first started having sex with her. She described how her birthday is in November.
85C.G. is unchallenged on the fact that she arrived in the summer of 1998, making her twelve years old at the time of her arrival. E.G. corroborated that the park incident happened shortly after her arrival. He said two days later and she said possibly weeks afterwards. The evidence as a whole plainly establishes that event took place when C.G. was twelve. Starting from this common point, the chronology of C.G.’s evidence, which I accept, establishes that the assaults started shortly thereafter. Her view was that the first P […] Avenue incident happened shortly after her arrival in Canada when it was starting to get cooler outside. That places it in the period between August to November of 1998, and thus establishes beyond doubt that C.G. was under fourteen years of age at the time the first three assaults are alleged. But I would note that even if it was a year later, which I find was not the case, C.G would still have been under fourteen years of age, because she did not turn fourteen until November 15, 1999, and even if the first episode was a year later, as I explained in the preceding paragraph, it certainly happened before November 15.
86Not only am I satisfied that those incidents took place before C.G. was fourteen years old, but even if not, the dynamic of the relationship between C.G. and E.G. was one of trust, and as such, even if I had concluded that C.G. was not under fourteen, I would have found that no consent was necessary. I would have reached that conclusion given the stipulation of s. 273.1(2)(c) that no consent is obtained for the purposes of s. 271 “where the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority.” As such, there could be no consent in this case owing to the plain and obvious fact that E.G. occupied a position of trust over C.G.
87E.G. was a family member who occupied a position of trust relative to C.G. from the moment she arrived in Canada from St. Vincent in the summer of 1998 at twelve years of age, and he used that position of trust to gain her trust, and her concurrence or co-operation even if not her consent. E.G. was C.G.’s great-uncle, and she did what he told her to do. She listened to him, and he was able to groom her in that context and coax her into sexual intercourse, and then a sexual relationship that continued for many years. R. v. Lutoslawski[7] explains that an apparent consent to sexual activity will be rendered illusory by dynamics of the relationship between the accused and the complainant, and by the misuse by the accused of the influence vested in him in relation to the complainant by virtue of that relationship. As such, the decision recognizes that an individual who is in a position of trust over another may use the personal feelings and the confidence engendered by that relationship to secure an apparent consent to sexual activity, but in such cases, no consent will be found to exist.
88It is my view that the incidents of sexual activity that I have found took place between C.G. and E.G. at his P […] Avenue apartment and at her mother’s house at B […] Road were opportunistic sexual assaults that occurred, just as C.G. described them, and that E.G. was a person in a position of trust. He assumed the risks of his predatory sexual conduct, confident that C.G. would not resist and would not summon help and ultimately would not report what it was that he did to her.
89Having considered all of the evidence relating to counts one, two and three in the full context of the evidence as a whole, I am satisfied beyond a reasonable doubt that E.G. perpetrated those assaults and I find him guilty on each of those three counts.
Conclusion
90For the forgoing reasons, convictions will be entered against E.G. on one count of sexual touching of C.G. when she was a person under fourteen years of age (Code, s. 151) and two counts of sexual assault (Code, s. 271), all relating to a time between 1998 and 2001 when C.G. was under fourteen years of age. An acquittal will be entered on the last sexual assault charge dating to September of 2013 when C.G. was twenty-seven years of age.
91Relative to count four, I feel it is important to remind the complainant, C.G., that my finding is a simple one. It is not a finding that the event did not occur, because it is admitted. Neither is it a finding that there was consent. Rather, it is a finding that I am not satisfied that the elements of that offence are made out because I am not satisfied that an absence of consent has been proven beyond a reasonable doubt. As such, that doubt requires that E.G. be acquitted of that offence.
92Nevertheless, even though I find I must acquit E.G. of that charge, it is plain to me that it was the predatory sexual conduct of E.G. committed fifteen years earlier when C.G. was twelve or thirteen years of age and under the age of consent that took away her innocence, that led to the continuation of a sexual relationship between them for the following decade, and that ultimately came to an end when she reported all of this abuse and sexual conduct the morning after C.G. sought to bring her warped relationship with E.G. to an end on September 11, 2013.
93I commend both counsel for the thorough and professional manner in which they prepared and presented their cases. The subject matter is difficult. These are never easy cases. Your work assisted me in completing the difficult tasks that fell to me. I am obliged.
Michael G. Quigley J.
Released: December 22, 2016
CITATION: R. v. E.G., 2016 ONSC 8069
COURT FILE NO.: CR-15-70000440-0000
DATE: 20161222
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
E.G.
REASONS FOR JUDGMENT
Michael G. Quigley J.
Released: December 22, 2016
11991 93 (SCC), [1991] 1 S.C.R. 742
21992 56 (SCC), [1992] 2 S.C.R. 122
3[2001] O.J. No. 3944.
42006 40088 (ON CA), [2006] O.J. No. 4749 (C.A.), at paras. 53 and 54.
52000 SCC 43, [2000] 2 S.C.R. 275.
6I note that the allegation that E.G. touched C.G.’s breast on that occasion is not alleged to have itself constituted a sexual assault.
72010 ONCA 207, at para. 12.