R. v. J.R., 2017 ONSC 4564
COURT FILE NO.: 15-05
DATE: 20170920
ONTARIO
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE (WITNESSES or COMPLAINANT) IS PROHIBITED FROM PUBLICATION BY ANY METHOD PURSUANT TO SECTION 486(3) OF THE CRIMINAL CODE.
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J.R.
Defendant
Elaine Evans, counsel for the Crown
Donald Johnson , counsel for the Defendant
HEARD: July 18 and 20, 2017
Laliberté, J.
REASONS FOR JUDGMENT
Introduction
[1] The accused person, J.R. is charged with two counts of sexual interference contrary to section 151 of the Criminal Code. The complainant B.S. alleges that the accused, who she describes as her step-dad, touched parts of her body for a sexual purpose.
[2] She describes a number of incidents which are said to have occurred in the family home located at 4 N Street in F. She would have been between the ages of 6 and 13.
[3] B.S. is the only witness who testified in this trial. Therefore the outcome revolves around her credibility and reliability. If she is believed beyond a reasonable doubt, convictions should follow. If she is not believed beyond a reasonable doubt, J.R. is to be found not guilty.
EVIDENCE
[4] B.S. was born on […], 1997. She is the oldest of 4 children. Her sister P. is 13 years old. There are 2 children from the accused’s relationship to the complainant’s mother namely 10 year old H and 8 year old C
[5] She explained that her mother was in a relationship with the accused for a period of 10 years. He is described as her step-dad. Her mother had just gotten out of a bad relationship when she contacted the accused who she knew from high school.
[6] The family lived in different homes prior to moving to 4 N. Street in F. They first resided with the accused’s parents in Finch for one year or so. They then moved to a house which was located near a railway track. She believes they stayed there for 2 to 3 years. The next move was in a townhouse in Cornwall when she believes she was 12 or 13. She was still in elementary school. They only stayed there for a few months. Finally, they moved to 4 N. Street, where she alleges the sexual touching took place.
[7] This residence is described a trailer type home which wasn’t very large. There were 3 bedrooms, a bathroom, a living room and a kitchen. Exhibits #1, #2 and #3 are diagrams drawn by the complainant setting out the outlay of the home and her bedroom which she shared with her siblings. She initially had her own bed and then slept on the top bunk of a bunk bed.
[8] On several occasions in her testimony B.S. apologized for being unable to provide specific dates, years or her age at the relevant time. She explains that she was just a kid and not taking notes.
[9] She may have been 10 years old and in grade 7 when she was first touched by the accused but is unsure.
[10] She provides the following details of the first alleged incident:
− She was in her bedroom, asleep and laying down on her back on her bed which was located next to the door
− She felt her blanket being lowered and a hand come down her leg; her vagina was touched over her underwear
− She immediately got up and sat up
− She states not having seen anything and that he had bolted out to H.’s room
− She heard shuffling and the door slide on the carpet
[11] She testifies that the accused, her mother and sister P were in the home.
[12] At first, she thought she was dreaming. The door was closed when she had gone to bed.
[13] She stayed awake until she fell asleep following the touching.
[14] The next morning, she waited for her mother and told her how she had been touched. Her mother was surprised and in disbelief.
[15] She states that her mother spoke to the accused. She could hear her mother yelling at him. Her evidence is that the accused would have reluctantly denied the allegations. She could only hear mumbling as she had stayed in her bedroom.
[16] Her mother would have returned to her bedroom and asked her if it was true.
[17] Counsel for J.R. objected to the admissibility of this evidence. The Court agreed with the objection and ruled that evidence pertaining to the complainant’s prior statement to her mother was to be heard in a voir dire. The admissibility of such prior statements would be decided if and when these became relevant to an issue such as an allegation of recent fabrication raised by defence.
[18] B.S explains that she felt hurt and as if nobody believed her since her mother maintained her relationship with the accused.
[19] She indicates having herself confronted the accused while alone with him in the kitchen when she returned from school. She asked him why he had done this and she reports that he stated not have done it and then went to his room.
[20] The witness testifies that at age 12 or 13, the accused started to massage parts of her body. This would take place in the living room and in her bedroom. These massages came to an end at the time they moved out when she was 13.
[21] She describes the touching in the living room as follows:
− She was sitting in the middle of the couch
− He would mimic her position on the couch while behind her
− His hands went under her shirt
− He stated her back was tense
− He would try to touch her breasts by placing his hands under her arms moving forward towards her breasts
− He would rub her lower back and attempt to go under inside her pants
− On one occasion, he grabbed her nipple coming down her shirt
− She would shift her weight and push forward to avoid being touched on certain areas of her body
− She didn’t say anything to him because she was scared
− There was no set pattern; it was different every week; her mother was at work when this occurred
[22] Her evidence is that she did not tell her mother about the massages as she wanted to avoid fights. She kept it for herself.
[23] In regards to the touching in the bedroom, she states that:
− She was touched on many occasions
− She would stay up at night and play on her phone to avoid being touched
− She would also sleep in her school clothing ( jeans, belt, bra) following the first incident ; she would not sleep in a nightgown
− When she fell asleep, she would see him through her lashes
− He would reach and try to touch her rear, her vagina and her breasts
− The touching was mostly over her clothing
− She recalls one incident when she had fallen asleep and he would have tried to touch under her tank top
− Once in a while, she would wear a pyjama bottom, he would try and touch her under her pyjama bottom
− He would state that he was caring for her sister P as a pretence for being in her bedroom
− The incidents took place in the early morning hours between midnight and 3-4 a.m.
− She wouldn’t sleep as a means of avoiding the touching; this resulted in her being tired all the time at school and being grumpy
− She describes that he wore underwear or long-johns when he entered her room ; he was shirtless; she refers to his hair being short
− There were no other males in the home
[24] B.S. testifies that she thinks having told her mother about the touching on one more occasion which resulted in a physical fight between her mother and the accused. This coming out resulted in an injury to her mother. Again, it is understood that this evidence is part of the voir dire of prior complaints as already noted.
[25] The witness explains having given a statement to the police in October 2014, which was approximately one year after they had moved out.
[26] Finally, in examination in chief, B.S. talks of an incident which would have occurred in the accused’s bedroom. She alleges that he took her hand, placed it on his penis and squeezed her hand on his penis.
[27] She provides the following details:
− She was maybe 13 or 14 years old
− It was in February and winter time
− Her mother was in the hospital giving birth to her brother who was born on […]; she is unsure of the year but believes it was in 2007
− She couldn’t sleep that night as she was worried about her mother
− She went on the couch in the living room
− She was lying awake on the couch when he entered; she saw him walk to her room and suggests that he wouldn’t have seen her initially on the couch
− She told him she was worried about her mother
− He told her to come and lay with him on his bed
− He persuaded her to join him
− She laid on the bed on her side with one leg on the side of the bed, waiting for him to fall asleep
− He managed to get her hand and pull it towards his penis while he was behind her
− He had pulled out his penis and placed her hand on it and making her squeeze it
− She immediately went to her room and didn’t sleep
− To her knowledge, he was pretending to be asleep
− He did not ejaculate
− He did not touch any other part of her body
− He didn’t come to her room
− She sat on her bed and read to keep herself awake in case he came to her room
[28] She explains that the massages and touching had started prior to this incident.
[29] Much of the cross-examination is focused on her inability to provide specific years and her age at the time of the alleged incidents.
[30] She testifies that the incident in the accused’s bedroom occurred when she was 10 years old. She is reminded of her evidence when questioned by Crown counsel and indicated that she was 13 or 14. Her response is that she doesn’t know the times.
[31] Nor can she be sure of the year they had moved in with the accused’s parents. She thinks it was in 2004 but doesn’t know for sure. She explains that she was just a kid and wasn’t paying attention.
[32] She confirms that it started with the nightgown incident when she was 9 or 10. It was around Christmas since she had gotten this nightgown as a gift. She was laying asleep on her bed. It was getting close to the morning when she felt her nightgown going up and her vagina being touched. As she looked up, she didn’t see anyone. She agrees with the suggestion that she can’t say who had touched her since she cannot provide a description. It was dark.
[33] Her first thought was that she was imagining this and dreaming. As she had stated at the preliminary inquiry, there was a 50/50 possibility that it was the accused.
[34] She is again cross-examined on her evidence at the preliminary inquiry. At page 38 of the transcript, she had testified as follows:
“The only reason why I say him is because of the massages. I know that he was attempting to try and grope my breast as well as my buttocks, so I instantly thought it was J.R… I knew that because of the massages that it would be 50/50 him…”
[35] Counsel reminded her of her prior testimony at trial that the massages started after the alleged night gown incident.
[36] She is certain that the nightgown incident was before the incident said to have occurred in the accused’s bedroom.
[37] She states having spoken to her mother after the nightgown incident. Her mother confronted him and he stated something to the effect that he had not done it and why would he do this.
[38] Her mother would have returned to her bedroom and asked her to re-enact the event as her mother laid on the bed. She didn’t confront him that morning since she was just a kid. She never told him to come in her room to confront him.
[39] B.S. is also cross-examined on her initial statement to the police and her not having mentioned the alleged incident in the accused’s bedroom.
[40] She was interviewed by the police on October 7, 2014. This initial interview pertained to incidents relating to her mother and the accused. It lasted one and a half hour.
[41] She agrees that she did not mention the touching of the penis incident after the officer asked her if there was any other information that she wanted to disclose. She said no to the officer. She provides the following responses as to why she didn’t tell the officer:
− It had slipped her mind
− She didn’t think of this incident
− She was under pressure
− She didn’t think of it at the time
[42] She explains that she mentioned this incident to the police sometime last year. There was a second interview. She is unsure of the circumstances of how it came up.
[43] The following points were also raised in the cross-examination:
− Her mother was present at the Courthouse in the waiting room during this trial
− She states that “ he was just another step-dad; they had a fairly good relationship
− She didn’t mention anything else to her mother since she was concerned for her safety
[44] In re-examination, she is again questioned as to why she did not mention the penis incident to the police. She explains that she guesses that the incident just resurfaced and that she was focussing on the repetitive acts of the accused. She knows it was a mistake not to disclose this to the police.
POSITIONS OF THE PARTIES
Crown
[45] The Crown’s position is that B.S. is a credible and reliable witness. Her evidence warrants findings of guilt on both counts of sexual interference.
[46] The fact that she is uncertain in regards to times does not detract from the quality of her evidence. There is no expected or normal way governing how a victim of sexual abuse acts. Delay in reporting is not a proper measure of credibility. It does not allow for the drawing of a negative inference. Timing is not an essential element of such offences.
[47] The Court must be mindful of the fact that she is describing a series of events which occurred over a fairly long period of time. Common sense and life experience make it such that uncertainties as to times and age are not significant considerations.
[48] The Court is reminded that the complainant is an adult describing childhood events. Thus, inconsistencies and confusion on peripheral details are to be considered accordingly.
[49] The same reasoning applies to incremental disclosure by a victim of sexual abuse, such as in this case, the penis incident. While a consideration, it does not automatically call for the drawing of a negative inference. Incremental disclosure should not be equated to a recantation. Furthermore, her explanation for not having mentioned the penis incident to the police in her initial statement is reasonable. Reference is made to the following:
− She was focussing on the repetitive acts of the accused
− She eventually thought about it
− She explains that it was a mistake not to tell the police
[50] Crown counsel, argues that the complainant’s family setting and universe at the time must be considered by the Court. Her household was marked by chaos and turbulence. She did not get any support from her mother following the disclosure. She felt afraid and not protected.
[51] The reality is that she did ultimately disclose this incident. Nor can it be argued that the penis incident should be seen as being worse that the other touching (i.e. touching of her vagina) so that it should have prevailed in her mind.
[52] It is noted that B.S. got along well with the accused. There is no motive as to why she would make false allegations against him.
[53] It is further argued that there is a ring of truth to her evidence. For example,
− The expectation is that she would state being able to identify him in her room if this was a fabricated story
− The effects of the touching on her such as inability to sleep and sleeping in her school clothing
[54] The details provided by her are also telling. For example,
− The way she described the re-enactment with her mother
− Her ability to describe her position and movements while being touched on the couch
[55] Finally, Crown counsel argues that nothing turns on the prosecution’s failure to call the complainant’s mother as a witness.
[56] Reference to the mother through the complainant’s evidence did not provide her with corroborative value. It was simply part of the narrative.
[57] In any event, the law is such that the Crown is not compelled to call witnesses. It is a matter of discretion.
[58] Therefore, the Court should not draw a negative inference by reason of the Crown not calling the mother as a witness in this trial.
Defence
[59] Defence submits that the Crown has not met the heavy onus of proving the accused’s guilt beyond a reasonable doubt. While absolute certainty is not required, the burden comes close to certainty. As such, the accused should be acquitted of both counts.
[60] The complainant is not a credible and reliable witness. She is an adult witness and as such there are no special criteria which apply in assessing her evidence. Even if she is found to be sincere and honest in her belief that she was sexually touched by the accused, in the end, the totality of the circumstances is such that she is unreliable.
[61] The following points are raised by counsel in support of his position:
− Her testimony is replete with responses such as “ I don’t remember”
− She is contradicted through her evidence at the preliminary inquiry as to when the massages started; this is significant because she had testified that this was how she was able to state that he was the one who had touched her
− She admits that she cannot confirm that he is the one who touched her during what is described as the “ nightgown incident”
− At best she states that it is a 50/50 chance that it was him; this amounts to a possibility
− Her explanation that she initially thought she was dreaming
[62] Reference is also made to the complainant not having disclosed the “penis incident” during her first interview with the police. She was asked if there was something else and she told the officer that there wasn’t. This is a significant contradiction not in the nature of incremental disclosure.
[63] Consideration should also be given to the fact that the Crown did not call the mother as a witness and therefore, a negative inference should be drawn. The mother was presented as a potential important witness. She has corroborative value when one considers the complainant’s evidence. One example is the mother’s participation in the re-enactment of the touching.
THE LAW
[64] In deciding this matter, the Court will be guided by the following relevant principles:
Essential elements of the Offence
[65] The essential elements of sexual interference are as follows:
i) the complainant was under sixteen (16) at the relevant time
ii) the accused touched the complainant
iii) the touching was for a sexual purpose
Fundamental principles of our criminal Law
The presumption of innocence provides that J.R. is presumed innocent and so remains if and until the Crown proves his guilt.
The burden of proving guilt rests solely on the prosecution. There is no burden of proof placed on an accused person. J.R. does not have to prove anything.
The Crown’s burden is to prove each of the essential elements of the offences already noted beyond a reasonable doubt.
I have instructed myself in regards to the concept of reasonable doubt in accordance with the Supreme Court of Canada’s decision in R. v. Lifchus [1997] 3 S.C.R. 320, namely:
i) It is fundamental to the presumption of innocence;
ii) It is not a doubt which is far-fetched or frivolous;
iii) It is not based on sympathy or prejudice; it is based on reason and common sense; it is a doubt that logically arises from the evidence or the lack of evidence;
iv) It is not enough for the Court to believe that an accused is likely or probably guilty;
v) However, the Crown is not required to prove guilt on the standard of absolute certainty;
vi) The Court’s task is to consider all of the evidence and decide whether it is sure that the accused committed the offence; an acquittal must follow if at the end, based on all of the evidence, or the lack of evidence, it is not sure;
vii) Where reliability and credibility are the ultimate issues, the Court is reminded that the rule of reasonable doubt applies to the assessment of reliability and credibility;
Assessment of reliability and credibility
[66] In assessing the evidence of witnesses, the Court must carefully and with an open mind consider all of the evidence. It must decide how much or little to believe and rely upon the testimonies.
[67] The Court may believe some, none or all of a witness’s evidence.
[68] This assessment is an exercise in common sense. There is no magic formula, no crystal ball, no scientific formula to assist the Court.
[69] The Court is alive to the important distinctions between the concepts of reliability and credibility. Credibility relates to a witness’ sincerity and belief that he or she is speaking the truth. Reliability relates to accuracy. It is possible for a credible witness not to be reliable.
[70] In properly assessing the witness in this trial, the Court will consider all of the circumstances including the following:
The witness’s ability to observe
The ability to recall the relevant events
How the witness presents in the witness box; this measure does not mean whether the witness appears to tell the truth ; it is not based on an “appearance of sincerity” as looks can be deceiving; what it does mean is that having regard to the particulars of the witness such as age, sophistication and limits, it is proper to consider things such as:
• Whether the witness was argumentative
• Whether he or she was responsive to the questions
• Whether the witness was evasive
• The presence of hesitation in answering
• The showing of appropriate emotions
Whether the evidence finds support in extrinsic evidence such as other witnesses, physical evidence or the circumstances
Whether, to the contrary , the version is contradicted by such extrinsic evidence
The ability to provide a detailed account of the relevant event; details which are significant
The presence of an interest in the outcome, a motive, any bias or partiality; the Court is mindful that the question of motive is to be addressed with caution; I am guided by the instructions of the Ontario Court of Appeal in R. v. Batte [2000] O.J. no 2184:
• There is no burden on an accused to demonstrate that a complainant has a motive to fabricate
• The absence of a demonstrated motive to fabricate doesn’t necessarily mean that there is no motive
• Nor does the absence of a demonstrated motive to fabricate establishes that the witness is telling the truth
• The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility
Whether the witness’s version is internally consistent being mindful that some details may be more significant than others
Whether the witness’s version is plausible when looked at through the lens of common sense, life experience, logic and/or reason
Whether the version is unreasonable and/or improbable when considered against the backdrop of facts which are not in dispute.
Whether the witness has a criminal record for crimes involving dishonesty
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 a 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
− R. v. D.D. 2000 SCC 43, [2000] S.C.J. No 44
- 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
− R. v. W. (R.) [1992] S.C.J. no 56
- The comments in R. v. D.D. are potentially applicable to both delayed and incremental disclosure depending on the circumstances revealed by the evidence in any particular case
− R. v. D.P. 2017 ONCA 263, [2017] O.J. no 1593
Failure by Crown to call witnesses
- There is no duty upon the Crown to call witnesses; decisions on how to present the case against an accused must be left to the Crown’s discretion absent evidence that this discretion is being abused
− R. v. Cook [1997] 1 S.C.R. 1113
- As explained by the Ontario Court of Appeal in R. v. N.L.P. 2013 ONCA 773, [2013] O.J. no 5878, the Court may, in certain circumstances, draw a negative inference against a party for failing to produce a witness:
• Such an inference is to be drawn with caution
• It can only be raised in respect of an issue on which the evidentiary burden rests on the party having failed to call the witness.
• The party must have raised the corroborative significance or value of the witness and failed to produce the witness
• The party affected by the inference may explain it a way by showing circumstances which otherwise account for the failure to produce the witness; there are no limitations upon this right to explain; the circumstances offered must in ordinary logic and experience, furnish a plausible reason for nonproduction
- R. v. Jolinet 2000 SCC 29, [2000] 1 S.C.R. 751
• The inference to be drawn has been articulated as follows :
the evidence would be unfavorable ( R. v. Koffman [1995] O.J. no 133)
the evidence would not be helpful or supportive (R. v. Rudge 2011 ONCA 791)
the adverse inference simply goes to credibility ( R. v. Charette (1982) 1982 CanLII 3738 (ON CA), 67 C.C.C. (2d) 357)
DISCUSSION
[71] As noted earlier, the end result of this trial revolves around the complainant’s evidence and whether it is credible and reliable so as to support the accused’s guilt beyond a reasonable doubt.
[72] Having carefully considered and assessed her evidence, the Court is left with a reasonable doubt on whether she was touched for a sexual purpose by the accused as alleged by her.
[73] Her testimony is such that it does not provide the Court with the near certainty required to support findings of guilt.
[74] While there are credibility issues, the Court’s reasonable doubt is grounded more on issues of reliability as oppose to sincerity. To her credit, B.S. comes across as a bright and articulate young individual. Nor does the evidence disclose a particular motive why she would make false allegations against the accused. However, as is often stated, a sincere witness may be unreliable.
[75] In arriving at this conclusion, the Court is mindful that B.S. is an adult describing alleged historical childhood events of a sexual nature which are said to have taken place over a period of close to 7 years. Common sense and experience show that discrepancies and uncertainties do not, in and of themselves, serve as a basis to reject the evidence of an alleged victim of such crimes.
[76] The essence of the Court’s decision is that the concerns raised by the complainant’s testimony go beyond expected discrepancies and uncertainties in such matters.
[77] Specifically the Court’s conclusion is based on the cumulative effect of the following considerations:
- Late disclosure of “penis incident”
[78] The late disclosure by the complainant of what was referred to as the “penis incident” is found to negatively impact on both the complainant’s credibility and reliability.
[79] On October 7, 2014, she responded no to the officer’s question whether there was any other information. She had not mentioned going to the accused’s bedroom and touching his penis as she did in this trial. This reveals a prior inconsistent statement on a significant matter. It is an internal contradiction.
[80] The court has considered the complainant’s explanation that the incident had slipped her mind, she hadn’t thought about it, she was focussing on the repetitive acts and that she was under pressure. It would seem unlikely to the Court that she would have forgotten such a significant event. While it is true as suggested by Crown counsel that the touching of her vagina is as serious, the following factors would support a reasonable expectation that this incident would not have slipped the complainant’s mind:
It is the only alleged incident which occurred in the accused’s bedroom
The only time she would have touched his penis
It is correlated to a significant event: her mother was at the hospital giving birth to her brother
It is a relatively recent event: her initial evidence was that she was 13 or 14 when this took place
[81] These concerns are compounded by the fact that the Court is provided with very little information in regards to the circumstances which led to the disclosure of this information to the authorities.
[82] As stated by the Ontario Court of Appeal in R. v. D.P. 2017 ONCA 263, [2017] O.J. no 1593, “ … the circumstances revealed by the evidence in any particular case “ are significant in considering the impact of “delayed and incremental disclosure” on a complainant’s testimony.
[83] The limited information provided to the Court is as follows:
- It wasn’t disclosed during the October 7, 2014 initial statement to the police
• it had slipped her mind
• she didn’t think of it
• she felt pressure
- she knew it was a mistake not to disclose this
• there is no indication as to when she remembered this incident so as to reason that it was a mistake not to have disclosed it
the incident was not mentioned in her evidence given at the October 19, 2015 preliminary inquiry
it was disclosed sometime prior to the first trial date which was set for June 28 and 29, 2016; the trial was adjourned by reason of this late disclosure
• there is no indication of how this was disclosed
[84] The end result is that the late disclosure of the “penis incident” is found to be a significant internal contradiction which impacts negatively on the complainant’s credibility and reliability.
- The Crown’s failure to call the complainant’s mother as a witness
[85] There is no suggestion that Crown counsel had an oblique motive in not calling the complainant’s mother as a witness such that failure to do so is an abuse of prosecutorial discretion.
[86] However, the Court finds that the circumstances are such that the Crown’s failure to do so allows for the drawing of a negative inference to the effect that the mother’s evidence would not have been favorable to the Crown and supportive of relevant portions of the complainant’s testimony.
[87] This finding is based on the following considerations:
the ultimate burden of proof rests with the Crown
the mother was present and available at the Courthouse as confirmed by the complainant
there is no explanation as to why the mother wasn’t called as a witness
reference to the mother during the complainant’s testimony went beyond providing the Court with narrative
the corroborative significance of the mother was raised by the Crown through the complainant’s evidence; the following are important events or facts which could have been confirmed by the mother:
• the nightgown incident was reported to her the following morning
• she confronted the accused who reluctantly denied
• she re-enacted the event with the complainant
• this was disclosed to her a second time which resulted in her being injured by the accused
• she would have asked the complainant why she slept in her school clothing
[88] To be clear, the significance of this potential evidence does not rest on the notion of recent complaint. The Court is mindful of section 275 of the Criminal Code which abrogates the rules respecting recent complaint.
[89] The mother’s significance is also grounded on Crown counsel’s argument during submissions that the complainant’s reality or universe was such that her mother did not believe her as evidenced by the fact that she pursued her relationship with the accused. This resulted in her feeling unprotected and not safe. While she tried to tell her mother, she found no support. The suggestion is that the Court should consider this when assessing the complainant’s credibility and reliability in regards to non-disclosure and incremental disclosure.
[90] The disclosure to the mother is given corroborative significance by the Crown as it serves, to explain the complainant’s conduct and, in part, the pattern of disclosure.
[91] Therefore, the Crowns failure to call the mother as a witness negatively impacts on the complainant’s evidence.
- The start of the massages and the nightgown incident
[92] The Court is mindful and sensitive to the fact that the complainant is an adult testifying about childhood events.
[93] The sequence of events in a long standing history of sexual abuse is not, in and of itself, troubling to the Court. A victim of historical sexual abuse cannot be faulted for being unsure of what happened first.
[94] There is no question that the complainant contradicted her preliminary inquiry evidence of October 19, 2016 when she stated at trial that the massages had started after the nightgown incident.
[95] As already stated, not much turns on this contradiction on the sequence of events.
[96] However, what is of some concern to the Court is the complainant’s reasoning during her testimony at the preliminary inquiry and the importance given by her to the massages as being the only means through which she is able to identify him as the culprit during the nightgown incident.
[97] She was cross-examined at trial on this evidence as found at page 38 of the preliminary inquiry transcript:
“The only reason why I say him is because of the massages. I know that he was attempting to try and grope my breast as well as my buttocks, so I instantly thought it was Mr. R…. I know that because of the massages that it would 50-50 be him so I can’t really describe it any better than that…”
[98] Clearly the massages take on a special meaning for the complainant. It is more than a sequence of event and what happened first. It is said by the complainant to be the means by which she identifies the accused as the one who touched her. In fact, she stated that it was the “only reason why” she says it was him.
[99] Seen in such light, the contradiction becomes more troubling when assessing the complainant’s evidence. It is a contradiction on what, in the end, is an important detail in her evidence. It is a contradiction on the means by which she identified the accused as the culprit at the preliminary inquiry.
[100] Finally, it also raises the question that if the massages started after the nightgown incident, how than is she able to identify him as the culprit?
- Frailties in complainant’s evidence
[101] Counsel for the accused person makes the point that the complainant’s evidence is replete with uncertainties. He notes that her response to many questions is often “ I don’t remember”.
[102] The Court agrees that the complainant often stated “I think” “I’m not to sure” and “ I can’t remember”. To her credit, most of these are in response to questions pertaining to years and her age at the time of events. On the whole, these do not significantly impact on her credibility and/or reliability. It is not unusual for victims of historical sexual abuse to be poor historians on questions of times and places.
[103] However, there are some frailties which are more concerning to the Court. These uncertainties are associated to factual issues which are more significant then times and places. The Court notes the following:
Her evidence was that she believed the accused touched her once under her pyjama bottoms
She testified that she thinks having told her mother one other time and that this resulted in a physical fight and her mother being injured
There is some contradiction as to whether she had confronted the accused following the nightgown incident; in cross- examination she explained that she had not confronted him with her mother the following morning since she was just a kid; she had earlier stated in examination in chief that she confronted him while alone in the kitchen when she returned from school.
[104] While not determinative, these concerns support the Court’s finding that there is a reasonable doubt stemming from the complainant’s evidence.
CONCLUSION
[105] For the reasons articulated in this judgment, the Court is left with a reasonable doubt. The accused person is accordingly found not guilty on both counts.
Justice Ronald M. Laliberté
Released: September 20, 2017
CITATION: R. v. J.R., 2017 ONSC 4564
COURT FILE NO.: 15-05
DATE: 2017/09/20
INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE (WITNESSES or COMPLAINANT) IS PROHIBITED FROM PUBLICATION BY ANY METHOD PURSUANT TO SECTION 486(3) OF THE CRIMINAL CODE.
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
J.R
REASONS FOR JUDGMENT
Justice Ronald M. Laliberté
Released: September 20, 2017