ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
J. Rodger, for the Crown
- and -
T. W. and T. D.
K. Jones, for T. W.
M. Van Wallengham, for T. D.
Accused
HEARD: March 15,16. 17, 22, 2017 at Kenora, Ontario
RESTRICTION ON PUBLICATION
By court order made under subsection 846.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcast or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Mr. Justice W.D. Newton
Reasons For Judgment
The Charges
1T.W. and T.D. are charged as follows:
Count 1: T.W., between the 1st day of January in the year 2004 and the 12th day of March in the year 2012 at the Municipality of Red Lake in the said Region, did for a sexual purpose touch M.S., a person under the age of sixteen directly with a part of her body, to wit her upper torso, contrary to Section 151 of the Criminal Code of Canada.
Count 2: T.W., between the 1st day of January in the year 2004 and the 12th day of March in the year 2012 at the Municipality of Red Lake in the said Region, did for a sexual purpose invite M.S., a person under the age of sixteen to touch directly with her mouth to wit the penis of the body of T.D, contrary to Section 152 of the Criminal Code of Canada.
Count 2: T.W., between the 1st day of January in the year 2004 and the 12th day of March in the year 2012 at the Municipality of Red Lake in the said Region, did commit a sexual assault on M.S., contrary to Section 271 of the Criminal Code of Canada.
Count 3: T.D., between the 1st day of January in the year 2004 and the 12th day of March in the year 2012 at the Municipality of Red Lake in the said Region, did commit a sexual assault on M.S., contrary to Section 271 of the Criminal Code of Canada.
Count 4: T.D., between the 1st day of January in the year 2004 and the 12th day of March in the year 2012 at the Municipaility of Red Lake in the said Region, did for a sexual purpose touch M.S., a person under the age of sexteen directly with a part of his body, to wit his hand, mouth, and penis. Contrary to Section 151 of the Criminal Code of Canada.
Count 5: T.D., between the 1st day of January in the year 2004 and the 12th day of March in the year 2012 at the Municipality of Red Lake in the said Region, did for a sexual purpose invite M.S., a person under the age of sixteen to touch directly with her hands and mouth to wit the penis of the body of T.D., contrary to Section 152 of the Criminal Code of Canada.
Count 6: T.D. between the 1st day of January in the year 2004 and the 12th day of March in the year 2012 at the Municipality of Red Lake in the said Region, did for a sexual purpose invite M.S., a person under the age of sixteen to touch directly with her hands and mouth to wit the penis of the body of T.D., contrary to Section 152 of the Criminal Code of Canada.
Overview
2T.W. and T.D. were common law spouses. The complainant, M.S., is T.W.’s niece. M.S. stayed with her uncle and her aunt often, on school holidays, at Christmas, and during the summer. It is acknowledged that she spent hundreds of nights sleeping at her aunt’s home.
3It is alleged that T.D. began sexually assaulting his niece when she was quite young progressing from fondling her, performing oral sex upon her, digitally penetrating her to vaginal and anal intercourse. It is also alleged that, on one or two occasions, T.D. brought his niece into his bedroom so that she could participate in a “threesome” with him and her aunt.
4Both T.W. and T.D. deny M.S’s allegations and argue that inconsistencies in M.S’s testimony and prior statements demonstrate that she is not a reliable and credible witness. They also argue that their son, who is two years younger than his cousin, would have been in a position to observe any sexual contact and he testified that he did not. Further, they argue that the presence of the protective family bulldog would have drawn attention of others in the house to any inappropriate conduct.
5In R. v. L. (G.), 2015 ONSC 385, Quigley J. made the following observations at para. 36, which are relevant to the task before me:
Assessment of Credibility and Reliability
36 Sexual offences are almost always perpetrated in private, as they were here, with only the complainant and the alleged offender present. Thus, proof to the criminal standard inevitably will fall to be decided primarily on the credibility of the complainant and the accused. However, reliability is also critical to consider as well as credibility. Contradictions in the evidence must be assessed. This will be particularly true where the Crown's case depends solely on the generally unsupported evidence of the complainant and where the principal issue is her credibility and reliability. Corroboration is not necessary, but when there is only the evidence of the complainant and the accused, it is not surprising that in the absence of some confirmatory or supportive evidence of the allegations by the complainant, there have been numerous cases reported where it has proven difficult for the Court to conclude beyond a reasonable doubt that the Crown has proven the offence to the required criminal standard.
6Therefore, as in all cases, the evidence must be scrutinized carefully to determine whether the allegations have been proven beyond a reasonable doubt.
The Evidence
M.S.
7By the time of trial M.S. was 21. She was born in 1996. Her parents separated when she was about two. She resided primarily with her mother, sometimes in Northwestern Ontario but for the most part in Manitoba. Access with her father was liberal and once M.S. attained school-age, it was regularized by access on school holidays such as March break and Christmas and for an extended period in the summer, sometimes for a month and sometimes for more than a month.
8Because of her father’s living arrangements she spent much of that time with her aunt and uncle. This was also close to other family members such as her paternal grandparents. She testified that she had a very close bond with her cousin who is two years younger. The time that M.S. spent with her mother and her mother’s different boyfriends and spouses was less than happy. M.S. testified that the time she spent with her aunt and uncle and cousin were the best times of her life. With them she participated in the usual Northwestern Ontario activities of fishing, boating, swimming and travelling by all-terrain vehicles. M.S. described her aunt as her best friend.
9At her aunt’s house, M.S. usually slept on the couch in the living room. Most of the couch was visible from her younger cousin’s room. The door to the cousin’s bedroom was always open because he was afraid of the dark. A hall light outside the bedroom door was also kept on at night.
10M.S. testified that most of the abuse occurred while she was on the couch late at night or early in the morning. Some abuse occurred in other locations. Some of the abuse occurred in the daytime when other family members were not present.
11When she was young, probably aged between five to seven, she remembers that her cousin and her uncle rubbed her legs when she was sick. She said that her uncle continued rubbing her legs as she got older and testified that his hands kept moving higher on her thighs, closer to her vagina. She said that the rubbing occurred both over and underneath her clothing. She said that her uncle was either sitting at the other end of the couch by her feet or sitting beside her. She testified that this behaviour happened so often and for so long that she cannot identify how many times this occurred.
12The rubbing progressed to digital penetration and then to her uncle performing oral sex on her. She said that her uncle was either naked or in a pair of the boxer shorts. She said that she would cry and asked him not to do what he was doing. She said that he ignored her or told her to “shut up” and that if she awakened anyone “we were going to get into trouble.”
13When asked whether her uncle ever ejaculated her first answer was “I am not sure honestly, ” but then when describing that he made her put her hand on his penis she said that he did ejaculate. She said that she refused intercourse so he would masturbate on her by rubbing his penis between her thighs as her legs were raised. She testified that he would ejaculate on her sometimes.
14She testified that her uncle had vaginal intercourse with her -- “I only ever remember once” and anal intercourse with her “a few times.”
15She testified that her aunt came into the living room when her uncle was performing oral sex on her one night. She said that her aunt and uncle began arguing loudly, enough to wake up their son. In cross-examination, she testified that this incident occurred on a March break.
16M.S. described being assaulted by her uncle one morning after her aunt had gone to work and that her uncle realized that there was a digital camera set up on a bookcase. The camera was directed at the couch area. She testified that her uncle thought that his spouse was trying to record him. Nothing was depicted on the video. The presence of the camera was confirmed by both of the accused who gave differing versions as to what preceded the attempt at recording. In cross-examination, M.S. testified that she thought the camera was set up on her next visit after her aunt had caught her uncle performing oral sex on her although she was not “100% sure” of the timing.
17She described an incident involving both her aunt and uncle as follows:
A. T. and T. brought me into their bedroom one day and they were having sex with each other and he got me to come in there. And I remember I was sitting at the edge of the bed kind of sitting on the pillows like, trying to like avoid what was happening sort of. And then T. started giving him oral sex and he like asked her to show me how to do it. So she did. And then they told me that I had to do it on him, what she showed me.
A. Well yeah, she kind of like showed me that like you have to like move your tongue on the end of the penis and like suck on it and stuff like that.
Q. And did she actually do that to T.’s penis?
A. Yes.
Q. And did you suck his penis after that?
A. Yeah.
Q. Did they say anything to you to get you to do that?
A. Yeah they told me to.
Q. And do you remember who said what?
A. I remember him telling her to like teach me how to do it. But I can’t per say who actually told me to perform the oral sex on him. I can’t remember.
Q. And did you do it?
A. Yeah.
Q. Okay. And how did that come to an end?
A. I’m not a hundred percent sure. I have like a few memories of being in the bedroom with them but they’re all kind of like mooshed together. So I can’t exactly remember how that particular time came to an end.
Q. Okay. So did you do oral sex on him more than once?
A. Yes.
Q. And can you remember how many times that happened?
A. Lots.
Q. Okay. And can you remember how many times it happened when T. was present?
A. Like the oral sex?
MS. RODGER: Yeah.
A. I think that probably only happened like once or twice.
18In cross-examination, M.S. confirmed that her aunt never touched her sexually or told her what to do. She agreed that her aunt did not really say anything but that her uncle told his aunt to “teach her to do it.” She confirmed that her uncle then told M.S. to “do it to him.” She also confirmed that her aunt never brought her into the bedroom or told her to stay in the bedroom. M.S. testified that she thought her aunt thought that it was better if she was present so her uncle did not do “as much to me.”
19In cross-examination, she also testified that the “teaching incident” only happened once. However, she was confronted with her testimony from the preliminary inquiry at which time in response to the question “Do you know how many times this happened that she showed you?”, she answered, “probably like twice.” M.S. explained this apparent inconsistency by saying that some memories “were mixed altogether” and she explained that there were certain memories that she could recall “every single detail” well but others that she cannot.
20She described another incident involving both her aunt and her uncle. She said that her uncle would bring her into the bedroom and have her lie on top of her aunt so that their bellies were touching. She testified that her uncle touched her and then put his penis in her vagina. She said that was the first time that he did that. She remembered her uncle saying “oh it goes in easier when she is on her stomach or goes in easier from behind.” She says that he ejaculated on her back and that her aunt was upset that he did so. She says that she bled when her uncle penetrated her. She remembered laying on her aunt’s belly twice but that she was only penetrated on one occasion. She testified that she thought she was between 10 to 13 years old at the time.
21In her statement to the police, she was asked whether her uncle ever ejaculated inside of her. Her response was once when she was in grade 10 during March break. She said that she would have been 15 or 16. She explained that this was the incident when she was laying on top of her aunt when her uncle ejaculated on her back. She said, “but he did not like fully ejaculated in me. He like pulled out and then like came on my back.” She said that the discrepancy was because she was very stressed when speaking to the police officer… “Like I could barely even speak that day, never mind think.”
22She testified that she remembers her aunt telling her that she could not say anything to anyone about what happened and that if anyone ever found out that they would get into trouble. She said that her uncle also had similar talks with her and that he told her that she would get in trouble too.
23She testified that she saw her aunt and uncle have sex 10 to 20 times but participated in sexual activities with them “I think only like twice”. In cross-examination, she was confronted with her preliminary inquiry testimony in which she said in response to how many times she was taken to her aunt and uncle’ s bedroom she said “probably about four or five, five or six. I am not 100% sure.”
24In cross-examination, she testified that her uncle abused her most nights that she stayed there and that it did not happen, “if he got too drunk to like function.”
25She said that the abuse ended on the March break the year she turned 16. She says that she had gone into her aunt and uncle’s bedroom after her aunt left for work to sleep while her uncle was watching TV. M.S. testified that her uncle came into the room performed oral sex on her and “fingered her.” She said that she cried and was “mad” and that her uncle took her to a store and bought her a pair of shoes that day. She said that before the abuse stopped, she had told her aunt that she was not “a virgin anymore” and that she had a boyfriend.
26M.S. also testified that she thought that her uncle touched her inappropriately when she was younger when they stayed in a hotel in another city.
27She described drinking with her aunt and uncle and related one incident when she said that she was about five or six and her aunt and uncle allowed her and her younger cousin to drink rum with them.
28When she was older she was allowed to drink alcohol with her aunt and uncle. M.S. testified that they also smoked “weed.” She said that the first time she smoked weed was with her aunt in the bedroom. She said that she “smoked up” “almost every single day.” She said that both her aunt and uncle gave her marijuana which they grew in the basement.
29Although she told some friends about the abuse, the first time she described what happened in detail was to another cousin. Other family members found out and eventually she went to the police in March 2015. M.S. did not tell all family members about her aunt’s involvement until she found out that her aunt was returning to the home community in April 2015. This was confirmed by M.S’s father when he testified. However, another aunt testified that M.S. told her of the aunt’s involvement in January 2015 initially and in more detail, in March 2015.
30Her aunt and uncle had separated in 2014. She and her aunt remained close although her aunt had moved to the Maritimes in August 2014. M.S’s aunt returned to her home community in November 2014 and, in cross-examination, M.S. was shown a Facebook posting in which she described her aunt as her “best friend” who she loved “to the moon and back.”
31After her aunt and uncle had separated, she had a conversation with her aunt in which she disclosed the full extent of the abuse by her uncle. In cross-examination, she confirmed that her aunt was “beyond devastated” when she disclosed the full extent of the abuse. She denied that her aunt encouraged her to report the abuse to the police at that time because her uncle had told her aunt that if M.S. reported his abuse to the police that he was “going to take her (the aunt) down with him.”
32M.S. testified that later her aunt was angry at her former spouse and that her aunt called and suggested that M.S. should report her uncle’s abuse but that M.S. was to leave her aunt “out of it.” M.S. testified that she and her aunt were communicating through social media. M.S. deleted all of the messages except one from her aunt. That message was saved and a screenshot of the message was an exhibit. The message from her aunt was: “okay I understand. Just wanted to know if you are going to call the cops on me.”
33For clarity, I reproduce the following excerpt from the cross-examination of M.S. about this message.
Q. Yeah. And that she communicated to you that she was worried about you telling the police that she knew and didn’t do anything?
A. Yeah.
Q. Yeah? Okay.
A. That’s exactly it.
Q. And that was what you were talking about before she sent the last message, “I just want to know you’re going to call the cops on me.”
A. Yes. I believe I told her that like I couldn’t leave her out of it.
Q. Because she knew and...
A. Yeah.
Q. ...she didn’t protect you?
A. Exactly.
Q. And the more you thought about it the more you thought if she knew and she didn’t protect you, you felt betrayed by that?
A. Well, yeah I think anybody would.
Q. Yeah. Of course. What I’m going to suggest to you MS is that the stuff that you’ve described with TW having sex, with TW being involved in any of this, is stuff that you’re just mistaken about?
A. No.
Q. Stuff that you’re remembering wrong?
A. No.
Q. I’m going to suggest to you that the first time TW really found out about what was going on, while she might have had some suspicions, was when you talked to her about it in May of 2014 and told her all those things and she was so devastated?
A. No.
34In cross-examination, M.S. confirmed that the family bulldog was quite protective and slept in her cousin’s room. She confirmed that if the dog observed someone in distress it would start barking. She agreed that the dog never intervened while her uncle was assaulting her on the couch.
B. L.
35B.L., another of M.S.’s aunts, testified. She was one of the first to learn of the abuse from M.S. She testified about communications with T.W.:
A. I did receive a text from TW. I believe it was in January. It wasn’t long after.... I’m positive it was January, maybe a couple of days or so after. TW had sent me a text asking me how’s MS. I was pretty disgusted by everything I heard. Pretty angry and really didn’t want to talk. I responded back, how do you think she is? She’s not good. I then responded back, she’s told me everything and it’s sick. It’s very sick. TW responded back to me, yes I know it is. It happened to me also. This happened to me also, or this happened to me too. After that I didn’t respond back.
T.W.
36T.W. is 41. She had a common-law relationship with T.D. for 22 years. They have one son, now 18. M.S’s father is T.W.’s brother. She confirmed that M.S. spent summer holidays, Christmas holidays and March break with them. She testified that M.S’s March break was always on a different week than her son’s break.
37She described her relationship with M.S. as “kind of like a little sister to me.”
38She admits to smoking marijuana with her niece but not until she was around 14 or 15. She testified that was not a common thing to do.
39With respect to the fight that M.S. referred to T.W.’s evidence was as follows:
I had woken up and when I walked out into the hallway/kitchen/bathroom area I had seen T. like not necessarily leaning over M., but kneeling down and he had a piece of the blanket in one hand and pulling it up over her.
MS. JONES: Okay.
A. And in the meantime in the corner just off the couch where our computer
was he was looking at porn. So that’s what started an argument. I didn’t know if he was looking at it while she was awake or what. It appeared to me that M. was sleeping. And we had gotten into an argument about that.
40She denied that her spouse was touching or performing oral sex on M.S.
41T.W. testified that “probably the following day,” she set up a digital camera on the bookshelf to the see if her spouse was watching porn while M.S. was sleeping. The computer desk was in the corner and abutted the couch were M.S. usually slept. When she checked the camera after returning, the only thing depicted was her son and M.S. watching television. She testified that she did not see anything in the video that concerned her at all. On cross-examination by counsel for her co-accused, she again stated that she was not concerned about her spouse molesting M.S. when she set up the camera. In cross-examination by the Crown, T.W. testified that she had no suspicion that her spouse was abusing M.S.
42However, she was confronted with her statement to the police in which she admitted that she did have a suspicion and that when she confronted her spouse she “got smacked around.” In her statement she said: “well when I try questioning him about it I either got smacked around, choked. So I just quit questioning him about it. I tried to catch him on camera.” In cross-examination, T.W. admitted that she had asked M.S. if her “uncle ever made you (her) to do anything?”
43She denied that M.S. was ever present in their bed while she and her spouse had sex. She denied that M.S. was ever involved in any sexual activity with her and her spouse and denied that she performed oral sex on her spouse in front of M.S.
44T.W. testified that the first time she became aware of any abuse was after she and her spouse separated. She said that M.S. told her that her uncle had been abusing her for years and that he had been sexually assaulting her since she was four. She testified that M.S. said she was too “scared” to say anything. She testified that she then called her former spouse and he denied everything. She admitted that she was angry at her former spouse and even angrier after these allegations. She admitted contacting two women that her former spouse was involved with and told them to “watch out” because he was a “woman beater and he liked young women.”
45She said that her relationship with M.S. continued to be a good after she moved to the Maritimes. There were discussions about M.S. coming to visit and M.S. was thinking about moving to be with her aunt. On a return visit in 2014, they spent time together and T.W. said it was “great.” She said that communication with M.S. slowed after Christmas of 2014.
46With respect to the message that she sent to M.S. – “okay I understand, just want to know if you are going to call the cops on me” – T.W. testified that M.S.’s postings on Facebook suggested that she was depressed and so T.W. tried to talk to her to determine what was wrong. T.W. suggested to M.S. that if her uncle’s abuse was affecting her so much she should tell her father. She explained the concern about the police arose because M.S. had told her about the abuse but T.W. “didn’t do anything legally to help her.”
47With respect to her text to T.L., T.W. thought M.S. was referring to the abuse by her uncle. She explained the, “it happened to me too,” referenced the fact that she was sexually abused by her close family friend when she was five.
48T.W. was not aware that M.S. was implicating her in the abuse until later when she received a telephone call from her mother. Shortly thereafter T.W. was arrested.
T.D.
49T.D. is 43.
50He testified that M.S. started to spend extended time with his family at about age 10. He confirmed that she usually slept on the couch. He denied ever touching M.S. in a sexual way or that he ever had M.S. touch him inappropriately. He also denied that M.S. was ever present when he had sex with his spouse.
51With respect to the camera incident, he testified that he became aware of it after T.W. told him that she suspected something and put the camera on the shelf but did not “catch anything.” He testified that he told her that that was because nothing was happening. In cross-examination by counsel for the co-accused, he testified that T.W. was suspicious because she saw him putting a blanket over M.S. while she was sleeping on the couch. He confirmed that that caused an argument and that was before the camera had been set up.
52In cross-examination by the Crown, he testified that the argument was not about him watching porn on the computer but that T.W. was accusing him of doing something to M.S. He confirmed that the camera was set up so that T.W. could see if there is anything “going on” between him and M.S. He testified that he never watched porn while M.S. was on the couch.
53In cross-examination by the Crown, T.D. said that, after he and T.W. separated, T.W. was “trying to make my life a miserable hell by doing anything and saying anything just to get me back.” He said that T.W. was threatening to go to the police about abusing her physically and abusing M.S. sexually. He also said that he received a text from M.S. about the same time saying that she was going to have him arrested because he had sexually abused her.
54He admitted that M.S. was allowed to drink some alcohol in their house when she was older but denied ever seeing her and T.W. smoked marijuana together.
D.D.
55D.D. is 18. He now lives with his father, T.D., and his father’s girlfriend.
56He testified that his dog was very protective and would interfere by barking if there was any altercation. He testified that he got the dog when he was 10 and therefore his cousin would have been 12.
57He denied seeing M.S. use marijuana or drinking alcohol at his parents’. He confirmed that M.S. usually slept on the couch and that the couch could be seen from his bed. He also confirmed that he slept with the door open and a light on in the hallway because he was afraid of the dark. He testified that he never saw anything “strange” involving his father. He thought the computer was acquired after the dog. He said that the computer could not be seen from his bed and that he did not have a clear view of the entire couch from his bed.
58He did not remember being awakened by his parents arguing when M.S. was sleeping on the couch.
Positions of the Parties
59Both of the accused argue that M.S. is not credible. Both point to the inconsistencies in her evidence at trial as contrasted with her statement to the police and her testimony at the preliminary inquiry. They point to the consistencies with respect to the number of times that M.S. was brought into her aunt and uncle’s bedroom while they had sex, the number of times there was a blow job “demonstration,” whether T.D. ejaculated, and whether T.D. ejaculated inside of M.S. They argue that the abuse could not have occurred because their son who often was sleeping in his room from which he could observe most of the couch, testified that he did not observe any inappropriate interactions between his father and his cousin. Similarly, both argue that the presence of the overprotective dog would have alerted other family members to any struggle, argument, crying, or any inappropriate behaviour. Both also argue that M.S. clearly exaggerated her alcohol and drug use and is therefore not credible.
60The Crown argues that M.S. is a credible witness who should be believed. The Crown argues that any inconsistencies are not material but rather explainable given the age of the complainant and the time that has elapsed since the events. The Crown argues that the absence of a motive to fabricate is a “credibility enhancer” for M.S. The Crown argues that the presence of the son or the dog does not mean that the sexual assaults could not occur as described by M.S. The Crown points to the discrepancy between the testimony of both accused with respect to the attempt to take video within the household to establish that the truth is not being told. The Crown argues that the text message from T.W. acknowledges her participation in the sexual abuse. The Crown argues that even if T.W. did not actively direct her niece to participate in the abuse she aided her spouse in committing the abuse by demonstrating how to perform a blow job.
The Law
A. The Presumption of Innocence and Burden of Proof
61Both T.W. and T.D. started this trial with the presumption of innocence and the Crown carries the burden of displacing the presumption with proof beyond a reasonable doubt that the accused committed the crime with which he or she 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.”
62As has often been repeated, a reasonable doubt is not an imaginary, far-fetched or frivolous doubt or one based on sympathy for or prejudice against anyone in the trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or absence of evidence. Likely or probable guilt is not enough. At the same time, it is nearly impossible to prove something to an absolute certainty, a standard of proof which is impossibly high. If after considering all of the evidence, the trier of fact is sure that the accused committed the offence, then the trier of fact will be satisfied of proof beyond a reasonable doubt. If after considering all of the evidence or the absence of evidence, the trier of fact is not sure that the accused committed the offence, then the trier of fact will not be satisfied of proof beyond a reasonable doubt. (See D. Watt, Watt’s Manual of Jury Instructions, 2nd Ed., Thomson Reuters Canada Ltd., 2015, Final 13, “Reasonable Doubt”; R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at paras. 36-40.)
63It is the Crown who holds the burden of proof from the beginning to the end of a criminal trial. The Crown must prove beyond a reasonable doubt that the accused is guilty, failing which the accused must be acquitted.
B. W. ( D.)
64Both T.W. and T.D. chose to testify. In determining whether the Crown has proven beyond a reasonable doubt that he committed the offence, I must apply the principles in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
65In a recent article, Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment1 the author, now Paciocco JA, set out the underlying principles that drive the W. (D.) reasoning as follows:
(1) Criminal trials cannot properly be resolved by deciding which conflicting version of events is preferred;
(2) A criminal fact-finder that believes evidence that is inconsistent with the guilt of the accused cannot convict the accused;
(3) Even if a criminal fact-finder does not entirely believe evidence inconsistent with guilt, if the fact-finder is left unsure whether that evidence is true there is a reasonable doubt and an acquittal must follow;
(4) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and
(5) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless the evidence that is given credit proves the accused guilty beyond a reasonable doubt.
Assessment of Credibility and Reliability
66In R. v. M. (A.), 2014 ONCA 769, the Court of Appeal succinctly set out the following principles which are particularly relevant to this case:
9First, every 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, [1992] S.C.J. No. 56, at p. 134 S.C.R.
10Second, no 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, R.S.C., 1985, c. C-5 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 S.C.R.
11Third, despite this flexibility, there are some guiding principles. Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: W. (R.), at p. 134 S.C.R. See, also, R. v. Kendall, 1962 CanLII 7 (SCC), [1962] S.C.R. 469, [1962] S.C.J. No. 27.
12Fourth, one 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 CanLII 8733 (ON CA), [1994] O.J. No. 2086, 93 C.C.C. (3d) 347 (C.A.), at p. 354 C.C.C., 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 [page540] 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.
13Inconsistencies 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 C.C.C.
14Fifth, 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] 3 S.C.R. 3, [2008] S.C.J. No. 52, 2008 SCC 51, 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 C.C.C.; R. v. Dinardo, [2008] 1 S.C.R. 788, [2008] S.C.J. No, 24, 2008 SCC 24, at para. 31.
15Sixth, prior consistent statements of a witness are not admissible for their truth: R. v. Stirling, [2008] 1 S.C.R. 272, [2008] S.C.J. No. 10, 2008 SCC 10, at para. 7. Mere repetition of a story on a prior occasion does not make the in-court description of the events any more credible or reliable: R. v. Curto, [2008] O.J. No. 889, 2008 ONCA 161, 230 C.C.C. (3d) 145, at paras. 32, 35; R. v. Ay, 1994 CanLII 8749 (BC CA), [1994] B.C.J. No. 2024, 93 C.C.C. (3d) 456 (C.A.), at p. 471 C.C.C.
67In the article already cited, Paciocco JA also reviews credibility and reliability signs and factors. One such factor is bias and interest. Evidence with respect to motive is admissible. See for example R v. Batte (2000) 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321 (C.A.) at para 120. But Paciocco JA cautions there is this “distinction between the absence of a known motive – which is not indication of credibility – and a proved absence of motive, which can increase confidence at the witnesses offering credible evidence.2
Analysis and Disposition
68The analysis must begin with an assessment of the reliability and credibility of the witnesses.
69I conclude that there are some issues with respect to the reliability of M.S.’s testimony. I conclude that her recollection of drinking rum at a young age is not accurate. I also conclude that she exaggerated her evidence with respect to her drug and alcohol consumption while at her aunt’s home. While it is always dangerous to make an assessment based on demeanor, part of the conclusion with respect to exaggeration relates to what I would describe as the flippant way in which M.S. testified about her use of alcohol and drugs.
70With respect to apparent inconsistencies, I considered M.S.’s evidence in the context of her age at the time and recognize the time that has passed since then. Therefore, on its own, I do not find the inconsistency with respect to the number of teaching events “probably only happened like once or twice”, “once” or “probably like twice” detracts from M.S.’s credibility.
71However, there were other inconsistencies relating to whether her uncle ever ejaculated – “I am not sure honestly” – as opposed to her description of her uncle ejaculating on her and inconsistencies in her testimony and statements to the police concerning whether her uncle ever ejaculated in her and when - at between ages 10 and 13 at trial and at age 15 to 16 to the police. M.S. was 19 when she gave her statement to the police.
72I also found M.S.’ description of her aunt’s reaction to being told of the abuse after separation as “beyond devastated” troublesome. If she participated in the abuse by teaching how to give a blow job and have her niece lie on top of her while her spouse had sex with both of them, it is difficult to accept that additional revelations of sexual abuse would leave T.W. “beyond devastated.”
73I conclude that T.W. was not completely truthful when she testified. I prefer her former spouse’s testimony that the camera was set up to detect suspected abuse and not to catch T.W. watching porn. The cross-examination on her statement to the police confirms that she suspected that her spouse was abusing M.S.
74The message from T.W. to M.S. – “okay I understand. Just wanted to know if you are going to call the cops on me.” is theoretically capable of the two different explanations. I am troubled by the fact that M.S. deleted all other messages.
75The messages between T.W. and M.S. are also capable of being interpreted as T.W. becoming aware of the abuse after separation.
76The fact that M.S. was describing T.W. as “her best friend” who she loved “to the moon and back” in November 2014 is difficult to reconcile with M.S.’s testimony of her aunt’s involvement.
77It is difficult to gauge the credibility of T.D. when there is simply a denial and no prior statements. His admission that his spouse set up the camera because she suspected abuse rather than agreeing with her that this was related to porn goes against his interest and could be considered a credibility enhancer.
78He testified that the allegations of abuse arose after his acrimonious separation and that it was his former spouse who was reporting these allegations to other women that he was involved with.
79I do not find the presence of the cousin or the dog as sufficient factors to persuade me that the abuse could not have occurred as alleged.
80In the circumstances of this case, I think it is unwise to consider the absence of a motive to fabricate as a credibility enhancer. I am not satisfied that there is a proved absence of motive in this case.
81This case must be resolved in accordance with the W. (D.) principles. After consideration of all the evidence, I am left unsure of what evidence is true and therefore have a reasonable doubt. As the Crown must prove the guilt of each accused beyond a reasonable doubt, I have no choice but to find both T.W. and T.D. not guilty of these charges.
The Hon. Mr. Justice W.D. Newton
Released: June 29, 2017
CITATION: R. v. T. W. & T. D., 2017 ONSC 4005
COURT FILE NO.: CR-16-0029-00
DATE: 2017-06-29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Crown
- and –
T. W. & T. D.
Accused
REASONS FOR JUDGMENT
Newton J.
Released: June 29, 2017
/lvp
David M. Paciocco, “Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment” (2017) 22 Can. Crim. L. Rev. 31