CITATION: R. v. B. M., 2016 ONSC 930
COURT FILE NO.: CR18-15
DATE: 2016-02-05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
B. M.
B. Laplante for the Crown
E. Lainevool, for the Accused
HEARD: February 3-4, 2016
REASONS FOR DECISION
PUBLICATION RESTRICTION NOTICE
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO AN ORDER UNDER SECTION 486.4(4) OF THE CRIMINAL CODE OF CANADA. THIS JUDGMENT COMPLIES WITH THIS RESTRICTION SO THAT IT CAN BE PUBLISHED.
A.D. KURKE, J.
[1] The accused is charged on a two-Count Indictment with Sexual Interference and Sexual Assault of his young son J.M. As so often in cases like these, J.M. and the accused are the only witnesses to the criminal acts that are alleged to have happened between them in their home at […] O[…] Street in North Bay prior to July 15, 2014.
[2] Counsel conducted a commendably focussed trial. The Crown called as witnesses J.M. and his mother A.M., the wife of the accused. On the defence side, only the accused testified. An Order pursuant to s. 486.4 of the Criminal Code has been made to protect the identity of the youthful complainant from publication.
Facts
[3] J.M. is a bright 7-year-old boy, born September 5, 2008 to mother A.M. and father B.M., the accused. A.M. and the accused married in April 2008, and for a period of years lived in various communities until A.M. completed college training in massage therapy. The couple had a daughter E.M. in 2011. The family moved to North Bay in May 2012. A.M. became a registered massage therapist in August of that year, while the accused set himself up with a business partner as a painter/artist. A.M. worked from home, and out of a chiropractic office; the accused generally worked at home.
[4] A.M. worked regular hours that often brought her home at 6:30 or 7 p.m. The accused’s more flexible work allowed him to pick up the children from school and daycare, although both parents were usually involved in dropping the children off in the morning. If there was no school, or the children were sick, the accused would stay home with them.
[5] By the Spring of 2014, J.M. was in school, and his sister E.M. was in a daycare that was run out of the school. By July 2014, as school was out, both J.M. and E.M. were enrolled in daycare programs at the school.
[6] On consent, J.M. testified with support person Lise St. George by CCTV, on his promise to tell the truth. He enjoys science, math, and gym, and likes playing hockey and soccer.
[7] The conduct that J.M. complained about took place in his bedroom or his parents’ bedroom at their house in North Bay, when his mom was at work. E.M. was in the house, but playing in a different room.
[8] J.M. described that the accused would get on the bed without pants. He pulled off J.M.’s pants. J.M. testified that the accused put his wiener in J.M.’s butt. The accused did not say anything, although J.M. told the accused to “stop”, because it hurt. The accused would not stop. J.M. also told the accused “not to do that anymore.” It appears that on one occasion, the accused told J.M. “if I stop, I will buy you a toy” or “if I stop I will give you something”, but J.M. says that the accused did not give him anything. But it was around the time that the accused said this that things stopped happening.
[9] J.M. offered few details. He said that this kind of thing happened 30 or 31 times. He said that he was six years old when it started, although that would plainly be impossible, as his complaint to his mother occurred when he was five. Sometimes J.M.’s mother brought him home and left him with the accused. On one occasion, apparently, his sister turned on the television in the bedroom, and there was music on in the living room, which his father had turned on.
[10] In his testimony, J.M. remembered telling his mom what his dad was doing to him at daycare one day during summer vacation when his mom was dropping him off. He told his mom because he wanted it to end. This was after the thirtieth time. It did not happen again, and he has not seen the accused since then.
[11] A.M. testified about that day, July 15, 2014. She had awakened the accused, where he was sleeping on the couch, at 6:45, in order to get the kids ready for daycare. They were to meet in front of the daycare. She herself had to get to a 7:00 meeting.
[12] The accused was late in arriving at the daycare. She went up to J.M.’s car door behind the accused, and opened it; J.M. seemed upset. Her comment about that elicited from the accused the words “he was fucking fine until you got here.” He proceeded to manhandle J.M. out of the car.
[13] The couple brought the children into the daycare. E.M. was dropped off first. J.M. complained to A.M. that his tummy hurt. While the accused went on the stage of the auditorium to speak with J.M.’s teachers, A.M. carried J.M. to the bathroom. When she put him down, J.M. disclosed to her, “Mommy, daddy puts his wienie in my bum.” A.M. was shocked, and J.M. added “It’s true mommy, it’s true. I wouldn’t lie about that.” A.M. reassured J.M. that she believed him, and he went into the bathroom.
[14] The accused came down the hall, and asked, “what the hell is his problem now?” A.M. saw J.M. at the sink in the bathroom stiffen up when he heard his father’s voice. The accused went somewhere else, and when J.M. came out, A.M. asked some follow-up questions about his disclosure. J.M. added that it happens when A.M. was not home, and that his sister was watching television or doing something else when it happens.
[15] A.M. spoke with J.M.’s teachers about what she had learned from the accused earlier, that J.M. had wet his pants three times in one day the week before, which was unusual for him. A.M. and the accused then went their own ways.
[16] A.M. described herself as in “shock”. She did her best to cancel some booked massages and went to talk about the disclosure with her sister, who told her to go to the police. She went to the police and gave a statement. J.M. gave a statement also, although A.M. did not bring him there. A.M. later took J.M. and E.M. to the hospital for examination. No evidence was offered as a result of that examination, and no charges ever developed concerning E.M.
[17] A.M.’s emotional turmoil as a result of the disclosure from J.M. was demonstrated in her evidence. In cross-examination, A.M. admitted telling the police that she had had no concerns about such conduct involving the accused before J.M.’s disclosure. It was clear from A.M.’s evidence that she did not know what to think. She spoke to police because she wanted to protect her son if it did happen, but if it hadn’t happened, she wanted it sorted out. She also put it this way: “J.M. doesn’t lie. I believed him, but did not believe that his dad would do that to his son.”
[18] A.M. also had to face the other concerns that flowed from this event. She was worried about the accused fleeing on bail with the children, given various names that she was aware he used, and a U.S. bank account with $80,000 in it. She hired a lawyer to secure custody of the children and possession of the couple’s rented home. In family proceedings she swore an affidavit alleging that the accused had been charged with abuse of both children; I accept her explanation that she simply signed the affidavit without close reading – a dangerous act, if not an unusual one – and that it was her lawyer who had added inaccurate information about charges involving E.M.
[19] The accused testified and denied any sexual touching or anal intercourse of his son, let alone that it happened 30 or 31 times. He denied bargaining with his son by offering him toys.
[20] He explained that he has many trades, but has been primarily an artist since 1980, from which work he made a lot of money for his family. In North Bay, the accused generally kept busy around the house with renovations, laundry for A.M.’s massage business, taking care of the children, painting and sculpting, and cooking meals. He would generally pick the children up from daycare at 4:30, and take them home. A.M. would arrive home at 5:30 or sometimes later.
[21] The accused was generally alone with the children 1 or 1 ½ hours after they returned from daycare. The accused claimed that in the summer, the children were always outside with toys and bikes, and that E.M. always needed supervision. He denied being able to go into J.M.'s bedroom with the door closed. He denied talking to one child apart from the other child. He claimed that J.M. and E.M. were always playing together outside, before acknowledging that sometimes they were apart; however, he denied that J.M. played alone in his room. The accused maintained throughout that he did not have time to play with the children or spend time alone with J.M. after daycare, given how much work he had to do around the house, and how much time it took to prepare supper.
[22] Concerning July 15, 2014, the accused and the children were rushed leaving the house, because he woke up late at 8:00. The children were upset or grumpy at home, but calmed once they were in the car. The accused denied using vulgar language in front of the children and denied being rough with J.M. A.M. was upset with him because he was late arriving. The accused remembers nothing unusual at J. M.’s daycare drop-off; he himself was talking/joking with a teacher.
[23] After the accused left the daycare, he did errands, and collected J.M. from daycare, as J.M. claimed not to be feeling well, but simply wanted to leave the daycare. They went to the mall, and the grocery store, where the accused got a call from his art associate telling him to go home as police were looking for him. He went home with his son, where he was met by police officers. He was brought to the police station separately from J.M., without being told why he was being taken there, and waited for a long time in the lobby area, before he was ultimately arrested and charged.
[24] The accused remained in custody 46 days until he was granted bail. He explained that he used other names in his painting and in his early years at school. He had access to his mother’s bank account in the U.S., but did not use the money, as it did not belong to him. On bail, he has been living in Sturgeon Falls, on social assistance, as there is no work to be had there.
The legal framework
[25] The accused started this trial presumed to be innocent of the charges. The Crown has the burden of displacing that presumption with proof beyond a reasonable doubt that he committed the offences with which he is charged: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 27. As Laskin, J. (as he then was) held in R. v. Appleby, 1971 CanLII 4 (SCC), [1972] S.C.R. 303, at para. 33: “[T]he presumption of innocence gives an accused the initial benefit of a right of silence and the ultimate benefit … of any reasonable doubt”.
[26] In R. v. M. (A.) (2014), 2014 ONCA 769, 123 O.R. (3d) 536 (C.A.), Watt, J.A. recently reviewed the principles that are relevant to assessing the evidence of witnesses in cases such as this one. I excerpt the following for consideration in the circumstances of this case (from paras. 9-14):
9 …[E]very witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding and ability to communicate: R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122…[at para. 26]
10 …[N]o inflexible rules mandate when a witness’ evidence should be evaluated according to “adult” or “child” standards. Indeed, in its provisions regarding testimonial capacity, the Canada Evidence Act…eschews any reference to “adult” or “child”, preferring the terms “14 years or older” and “under 14 years of age”. An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children’s evidence: W.(R.), at p. 134[.]
12 …[O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.)… (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354[,] leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.
13 Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.
14 …[A] trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3…, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356[;] R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788…, at para. 31. [some citations eliminated]
[27] It is not only witness credibility that must be assessed. The reliability of a witness’ evidence is a separate, but related issue. As noted by Watt, J.A. in R. v. C.(H.), 2009 ONCA 56, [2009] O.J. No. 214 (C.A.), credibility focuses on a witness’s veracity, while reliability has to do with the witness’s accuracy. Accuracy involves the ability to observe, recall and recount events that are in issue. So, at para 41: “Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.”
[28] It is important to recognize that flaws and contradictions in a child’s evidence need not carry the same weight as they would in the evidence 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”: R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at para. 48; see also R. v. C.(H.), 2009 ONCA 56, [2009] O.J. No. 214, at para. 42. That is not to say that a child’s evidence should not be scrutinized carefully, only that it should be examined through a lens engineered to view “criteria appropriate to his or her mental development, understanding and ability to communicate”.
[29] In assessing the evidence in this case I bear in mind the instructions of the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, in which the Court offered the following guidance on how to approach “credibility contests” (at para. 28):
… A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[30] While it has been said that these three W.(D.) steps are not a “magic incantation”, following the analytic framework set out above ensures that the correct burden and standard of proof are applied: R. v S.(W.D.), 1994 CanLII 76 (SCC), [1994] S.C.J. No. 91, at para 24. As noted by Charron, J. in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para 23:
In a case that turns on credibility … the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt.
[31] Importantly, cases such as this are not about a choice between the accused’s and the complainant’s evidence. The central issue is whether, based on the whole of the evidence, I am satisfied beyond a reasonable doubt about the accused’s guilt in relation to either of the offences with which he is charged: R. v C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para 8.
Analysis
[32] J.M. presents as very believable. He told his story in a candid and articulate manner. But even taking into account that J.M., as a seven-year-old, approaches the giving of evidence as a child would, and not as an adult, and that some indulgence must be granted for his age and understanding, significant reliability concerns arise in his evidence. I specifically note at least the following:
a. There are virtually no details in the allegation made by J.M. While there are assertions that the accused pulled off J.M.’s pants, of contact between the accused’s penis and J.M.’s buttocks, and of some words of complaint uttered by J.M., I am left unable to determine such basic issues as whether there was even penetration during any of these incidents, how long the incidents lasted, whether the accused ejaculated, or what brought individual incidents to an end;
b. As I indicated above, J.M. asserted that his father’s misconduct started when J.M. was six, although his disclosure to his mother took place prior to his sixth birthday, and no such assault as alleged could have occurred after that date. While I am mindful that dates are less meaningful to young children, it appears that this answer forms part of a pattern of guesswork on J.M.’s part that I will discuss further as I go;
c. On July 15, 2014, J.M. testified that he went to daycare sitting in his seat behind the driver, who was his mother that day. The evidence of A.M. and B.M. was that J.M. was driven to daycare by the accused;
d. J.M. said he let himself out of the car, as he regularly did. In fact, it was A.M. who opened the car door for J.M., and she claimed that she just opened the door, but that the accused grabbed J.M. out of the car by his collar. The accused denied this grabbing. Either way, I am satisfied that J.M. did not get himself out of the car;
e. Although he was spoken to by “Officer Roger” about the difference between the truth and a lie in his video statement, he told the officer that his middle name was “Spiderman”, “Evil Jack in the Box”, and “Darth Vader”. J.M. did not remember having done so, but explained that at that time he did not know his middle name, so he just said those names;
f. J.M. testified that the accused did not have a job, although he knew that the accused’s job was painting. J.M. explained, when he was reminded of this, that “he did not remember if he had a job”. I am left to understand that J.M. chose to answer this question in the negative, though his proper response should have been “I don’t know”, or “I don’t remember”;
g. J.M. admitted that although he was trying to tell Officer Roger the truth, he was making up answers if he did not know an answer;
h. Prior to his testimony in this Court, J.M. had never stated that the accused had sexually assaulted him 30 or 31 times. That range of number was not disclosed to his mother, or police, or the judge presiding at the preliminary inquiry. And indeed, when asked, J.M. indicated that he did not know why he testified to that number at this trial. It is apparent to me that J.M., here as with the police officer, made up an answer to fill a void in his knowledge in response to a direct question;
i. At the preliminary inquiry in this matter, J.M. said that his sister was sometimes at home and sometimes not when the accused assaulted him. At this trial, J.M. said that his sister was always in the home during these incidents;
j. J.M. attributes to the accused either of the two utterances “if I stop, I will buy you a toy” or “if I stop I will give you something”. Try as I might, I am unable to tease rational meaning from these statements, and yet J.M. consistently maintained that his father spoke such words to him.
[33] These are not at all indications that J.M. is a bad person, or even that he behaved badly. He is a seven-year-old, dealing with a police investigation and a formal videotaped statement, testimony at a preliminary inquiry and a trial. So he does not understand the importance of detail and accuracy, he plays around, he guesses at things, he says whatever comes to mind. He behaves as a child would in adult circumstances: childishly. While that does not mean that he was trying to deceive the officer or the Court, I must factor into my assessment of J.M.’s evidence that he exhibited a carelessness for the truth throughout his evidence that detracts from his reliability in significant ways.
[34] The accused presented as a thoughtful, soft-spoken individual, and has denied doing the things that J. M. claimed. Nevertheless, I find that I have strong suspicions about the accused’s evidence that detract from my ability to believe it.
[35] I find that the accused in his evidence attempted to leave the impression that he could not have done what J.M. claims, because he did not have the opportunity. His various claims that J.M. and E.M. were almost always playing together, that J.M. almost never played alone in his room, that he did not have time to play or talk with his son alone appear exaggerated and contrived, and are just not believable.
[36] I also find troubling that in his evidence about being taken to the police station, the accused evinces no particular concern about the fate of his young son, who was taken away in a police car, and disappeared into the inner confines of the station. What I heard from the accused was that he was forced to wait a long time in the lobby, not that he was worried about what was going on with his son. This is bizarre if, as the accused claimed, he was not told the reason why he and J.M. were being taken to the police station. As in his description of himself at the daycare that morning, the accused’s focus was not on his children, but on himself and his own activity, talking to teachers on the stage or simply waiting in the lobby of the station. This contrasts sharply with A.M., whose major concern from the moment of J.M.’s disclosure is the safety and protection of her children.
[37] Between the two, the accused and A.M., I accept the evidence of A.M. about what transpired the morning of July 15, 2014 at the daycare drop-off. It is clear to me that the accused’s late awakening and pressure to get his “grumpy” children to daycare on time left him flustered and short-tempered. I accept that he used vulgar language in front of the children as described by A.M., and was physically forceful in pulling J.M. from the car. I can only conclude that the accused tried to present the July 15, 2014 drop-off as completely normal and uneventful in order to distance himself from any sort of aggressive conduct towards his son.
Conclusion
[38] For the above reasons, I am drawn to the following conclusions.
[39] I do not believe the accused’s evidence denying sexual impropriety with J.M. Rather, I believe J.M. to the extent that what he testified to convinces me that the accused probably did do something sexually inappropriate to him.
[40] Nevertheless, I am unable to entirely reject the accused’s clear denials of that sexual misconduct, especially given the significant issues with the reliability of J.M.’s evidence. Those issues prevent me from being satisfied beyond a reasonable doubt on the Sexual Interference charge or the Sexual Assault charge.
[41] On all of the evidence of this case, I am left with a reasonable doubt on both charges, and they are dismissed.
A.D. KURKE J.
Released: 2016-02-05
CITATION: R. v. B.M., 2016 ONSC 930
COURT FILE NO.: CR18-15
DATE: 2016-02-05
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
B. M.
REASONS FOR DECISION
Justice A.D. Kurke
Released: February 5, 2016