R. v. M.L., 2017 ONSC 4646

R. v. M.L., 2017 ONSC 4646

COURT FILE NO.: CR-14-00528

DATE: 20170803

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

M.L.

Defendant

Mr. L. O’Neill, for the Crown

Mr. L. Kinahan, for the Defendant

HEARD: July 17, 18, 19, 2017

RESTRICTION ON PUBLICATION

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this endorsement as the complainant may not be published, broadcasted or transmitted in any manner. This endorsement complies with this restriction so that it can be published.

REASONS FOR DECISION

EDWARDS j.:

Overview

1M.L. is charged with one count each of sexual assault, sexual touching and invitation to sexual touching. The facts giving rise to these charges relate to that period of time when M.S., the step-daughter of M.L., was in grade six and grade seven. During this time period M.S., in her evidence, alleged that her step-father sexually abused her by digitally penetrating her vagina and having her rub his penis. The abuse is said to have occurred on multiple occasions.

2The evidence against M.L. consists entirely of the evidence of his step-daughter. M.L., as was his right, chose not to testify. His wife A.L., the mother of M.S., testified with respect to her typical work habits and when she would generally be at home. This evidence addresses those periods of time when, for the most part, M.S. alleges she was sexually assaulted.

The Evidence of M.S.

3M.S. was born in […] 1997. Her parents separated when she was three or four years of age. Eventually her mother remarried and M.S. began to live with her step-father and mother, until grade seven when she moved in full-time with her natural father.

4M.S.’s mother is a teacher. Her step-father, the accused, was described by M.S. as a part-time actor.

5As for the relationship that M.S. had with her mother and step-father, she stated that she found it very difficult to live with them as she found M.L. very controlling of her. She stated that her step-father called her fat, was demeaning to her and said rude things about her natural father. She further stated that he used corporal punishment on her and on occasion locked her outside on the deck. She also testified he shoved her into the unfinished basement knowing she was scared of being alone in the basement.

6The alleged sexual abuse testified to by M.S. can be broken down into three categories and time periods. She was first sexually abused when she was having a bath in grade six. The second type of abuse can be categorized as those occasions when M.S. was in her bedroom and the accused digitally penetrated her vagina and also had her rub his penis. The third category of abuse relates to occasions in the back yard pool when she alleges M.L. rubbed her on the outside of her bathing suit twice and possibly as many as 4 times, and also touched her vagina in a similar fashion to those occasions that occurred in her bedroom.

7The first occasion of sexual abuse occurred when M.S. was in grade six. She stated that she had come home from school. No one was home and she went to the bathroom to have a bath. She said that M.L. entered the bathroom and knelt down beside the bathtub, and then began to wash her “private parts properly” and had a discussion with her about properly washing to avoid unwanted diseases. She stated that she felt nervous and was in shock. She testified that M.L. washed her with her “lufa”. She stated that she felt “a stinging sensation in her vagina” and that it “hurt very bad”. She said that all of this occurred over a period of five minutes, although she was not entirely sure.

8The second occasion of the alleged sexual abuse occurred in her bedroom a few weeks after the initial encounter in the bath. M.S. stated that her step-father came into her room and took off her clothes. He told her to sit on the bed. She stated that M.L. rubbed her, stroked her hair and then grabbed her very tightly. After rubbing her for a while, M.S. testified that he stuck one finger inside her vagina and eventually inserted two fingers. She stated that she felt a burning outside of her vagina as well as inside. She stated that her clitoris felt raw. She testified that she was able to endure the abuse by daydreaming rather than focusing on the physical pain. She stated that there were occasions that M.L. saw her crying, at which time he became “overly loving” towards her. On other occasions he became more forceful and held her down with his body weight, such that she could not breathe and she felt helpless.

9The incidents in M.S.’s bedroom occurred when M.S. did not have any clothes on. She stated that in the beginning her step-father had his clothes on, but changed that when he had her touch his penis. On those occasions he had his pants off. She stated that he had his clothes off on five or six occasions and possibly more. As for the amount of time that the rubbing of his penis would occur, she stated that this happened over a course of five to ten minutes and possibly more. After the stroking of his penis had terminated M.S. stated that her step-father would then leave and go to his bedroom, only to come out 20 to 30 minutes later.

10As to the frequency of the abuse which occurred in her bedroom, M.S. testified that this occurred one to two times per week and sometimes more if she was home alone, or less if her mother was home on vacation.

11As to whether anyone else was in the house, M.S. testified that her brother usually hung out with friends a lot after school or was participating in sports at practices or games. She stated that generally speaking she got home from school between 3:00 p.m. and 3:30 p.m.

12The third category of sexual abuse occurred, as previously noted, in the family pool which is described as an above ground pool. In her evidence in-chief she stated that this occurred on two occasions when she and her step-father were playing around in the pool wrestling, ultimately switching to the step-father rubbing her on the outside of her bathing suit and touching her vagina. In cross-examination she was confronted with her evidence at the preliminary hearing where she said this may have occurred as many as four times.

13M.S. did not tell anyone about the occasions when she was touched inappropriately by her step-father as she was “very scared of him”, as he was both physically and mentally abusing her. M.S., in fact, did not disclose the inappropriate sexual touching and alleged sexual abuse until an occasion in her father’s home in October of 2013. Prior to this M.S. acknowledged that there had been significant disagreements between her, her father and step-mother, with respect to her use of marijuana and alcohol. These disagreements had apparently reached the point where on the evening when she made the disclosure of the abuse, she was facing the possibility that she would be “kicked out” of her father’s home if she did not agree to ceasing all use of marijuana and alcohol.

14Prior to when disclosure was made to the step-mother M.S. stated that she had asked her step-father to stop abusing her, to which she indicated that her step-father called her a liar and a manipulator and that if she ever told anyone about the alleged sexual touching - such as her father, that no one would believe her. M.S. stated that she believed M.L. and that nothing would come of it if she disclosed the sexual abuse and that she was scared of him.

15In her evidence in-chief, M.S. was soft-spoken to the point where she had to be reminded on numerous occasions to keep her voice up. Ultimately, a voice amplification system was employed so that everyone in the courtroom could hear her evidence. There was at least one occasion early on in her evidence in-chief, as she began to discuss the occasions of sexual touching, that she became emotional to the point where she seemed to hyperventilate. A recess was necessary to allow her to compose herself to then give a complete account of what had occurred.

16In cross-examination, M.S. was an entirely different witness. It would be fair to describe her as combative with defence counsel. It would also be fair to suggest that she “gave as good as she got”. The cross-examination, as acknowledged by Mr. Kinahan, was vigorous. At no time was any objection taken by Crown counsel to the vigorous nature of the cross-examination.

17The focus of the cross-examination was largely with respect to the timing of the disclosure; what occurred in M.S.’s college residence in 2016; and inconsistencies in her evidence about the actual sexual abuse.

18Dealing with the timing of the disclosure, M.S. asserted that when she ultimately disclosed to her step-mother - contrary to the position put to her by defence counsel, she and her step-mother were “trying to work things out” and that she did not disclose the sexual abuse as a means to avoid being kicked out of the family residence.

19M.S. acknowledged that she used drugs and alcohol, but that in her opinion she did not have a problem as put to her by defence counsel.

20In cross-examination, M.S. was confronted with the suggestion that if she did not agree with her father and step-mother to stop using drugs and alcohol she would be thrown out of the family residence. She disagreed that this ultimatum was given to her at 9:30 p.m. with a deadline of 10:00 p.m. To the contrary, M.S. asserted that she and her step-mother were simply trying to work things out. When it was put to her that she was given this ultimatum, M.S. stated that she did not remember that conversation in that fashion and that it was not a “heated argument”.

21When asked in cross-examination as to how the sexual abuse came up, M.S. stated that she told her step-mother about it. She stated that she was emotional and upset. She indicated that her step-mother said that “we can have a clean slate now but we need more to help you”. It was at this point that M.S. stated that she disclosed the abuse to her step-mother.

22It was put to M.S. in cross-examination that when her step-mother told her that she could have a clean slate, that this was when she came up with the sexual abuse story. M.S. categorically denied that this was the case.

23M.S. was further confronted in cross-examination with the suggestion that her step-mother asked her whether her problems had anything to do with M.L., and that her step-mother asked her if M.L. had touched her. M.S. responded by stating that this did not happen, but that her step-mother possibly may remember things better than she did. Her step-mother was not called as a witness by the Crown to lend credibility to M.S.’s version of how and when disclosure was made. She stated that there was further discussion that night about the sexual abuse, and that she specifically asked her step-mother not to tell her father until the following morning. She stated that her step-mother then went downstairs and possibly watched television.

24Subsequent to making the disclosure to her step-mother, M.S. returned to her bedroom and - according to her evidence, attempted suicide by taking sleeping pills. She stated that she took enough pills to “stop her body from working”. As to whether it was a suicide attempt or an overdose, M.S. maintains that it was a suicide attempt but did acknowledge during the course of her cross-examination that she “needed to shut down”, and that she knew what she was doing. She stated that she was very emotional and that she “could not shut my mind off”.

25After dealing with the disclosure to her step-mother, the cross-examination then moved to what can only be described as a collateral issue framed in the context of events that occurred in her college residence during the spring of 2016. M.S. was quite categorical in her cross-examination, refusing to accept that she was either an alcoholic or a drug addict.

26As a result of a third party records application, videotaped evidence of what occurred at M.S.’s college residence were produced. Essentially, the videotapes break down into two key dates. The first was on St. Patrick’s Day 2016 when the videotape clearly shows M.S. in a significant state of intoxication. M.S. acknowledged that she had been drinking all day and that she was “really drunk”.

27Of greater concern is what occurred in April 2016. Either M.S. was confused in her evidence as to what was disclosed in the second series of videotapes, or she purposely intended to minimize what actually occurred. She was of the belief that the second series of videotapes show what occurred on St. Patrick’s Day. The date stamps on the videotape were acknowledged by counsel to be accurate, and clearly establish that there was a distinct set of events that occurred in April as opposed to what was also shown on St. Patrick’s Day in March 2016.

28Prior to giving her evidence on Monday, July 17, 2017, M.S. met with Crown counsel for the purposes of preparing her evidence. It was disclosed to her by the Crown, that she likely would face cross-examination with respect to what was revealed in the videotapes made available to the defence as a result of the third party records application. What was discussed between the Crown and M.S. in preparation was disclosed to the defence. In essence, M.S. asserted that the second videotape evidence in April related to when she was being “kicked out of college” and security helped her into another office. She thought this was what was being discussed with the Crown and not what ultimately is revealed in the videotape. What was revealed in the videotape was quite the opposite of what she disclosed to the Crown in preparation for trial.

29The essence of M.S.’s evidence, with respect to the video evidence of what occurred in April, was that she was abused by security staff at the college residence. She asserted that she was beaten up by security, and that she had video evidence that would corroborate her side of the story that she was slammed to the ground by the security guards. Ultimately, M.S. was evicted from the college residence on the evening in question and taken to a local motel. On the day following the incident at the residence she called the Ottawa Police to – according to her evidence, seek advice as to what she should do. The evidence leads me to the conclusion, however, that she intended to file a complaint with respect to what occurred at the hands of the security guards, as she asserted that she had been beaten up and she had the bruises to show it. No complaint was made by M.S. to the police. No statement was given by M.S. to the police. Her boyfriend, who was present that evening, also gave no statement to the police. There is no evidence that any photographs were taken of the alleged bruising despite M.S.’s evidence that such photographs were available. The Crown did not seek any adjournment upon the completion of the Crown’s case to obtain this evidence. No reply evidence was sought to be adduced by the Crown addressing inconsistencies in M.S.’s evidence.

30I do not propose to review at length what the video actually shows. The video was Exhibit 3 at trial. Suffice it to say that any objective viewer of the video would be left with the impression that M.S. was significantly intoxicated on the evening in question, and that contrary to M.S.’s evidence the security guards who were attempting to deal with the situation were not the aggressors. On many occasions during the course of the 45 minute video it appears that the security guards have M.S. to the point where she is under control, only to lash out again against the security guards. Ultimately, the two security guards required further assistance of a third security guard and two, if not three, Ottawa Police officers. M.S., in my view, clearly demonstrated that not only was she intoxicated but she was – even on her own evidence, dealing with anger management issues.

31What the cross-examination with respect to the incidents at the residence of M.S. demonstrates, is that either M.S. has a poor recollection of what occurred due to her significant state of intoxication or, alternatively, she seeks to minimize the extent of her own involvement in a very unfortunate situation with the security guards and police officers. This lead to the possibility of her filing a complaint against the security guards, in order to extricate herself from a very difficult situation that could have resulted in her expulsion from A[…] College. The credibility of M.S., in my view, was significantly shaken as a result of the cross-examination with respect to the incident at the residence, as revealed in the videotape. As previously noted this is a collateral issue that has nothing to do with the alleged sexual assaults themselves, but ultimately does have an impact on whether she is a credible and reliable witness.

32As for the alleged incidents of sexual abuse, M.S. acknowledged that what I have described as the bathtub incident is the one that probably sticks out in her mind as being the one in which she has been the most consistent. She was cross-examined with respect to whether or not her step-father was kneeling beside the bathtub or sitting on the bathtub. When confronted with an inconsistency in the statement that she gave to the police in this regard, she acknowledged that she could not remember exactly whether her step-father was kneeling or sitting down. Her evidence, however, was in my view consistent with respect to what actually occurred in the bathtub, and that when confronted with the inconsistency of where her step-father was located, M.S. indicated that she was 16 when she gave the statement and that she “didn’t realize that she had to give every detail” of what occurred. She further stated that as for what was contained in her statement she was trying to give the “Cole’s Notes story”, and as a result she was “being ripped apart” in cross-examination because of this.

33As for the incidents in the bedroom, she was confronted with her evidence that this occurred once or twice a week for nearly two years. In response M.S. acknowledged that it did not happen consistently, but if M.L. had the opportunity he would abuse her in the fashion previously described in her bedroom. If there was no opportunity he would not. At the preliminary hearing it was put to her that she testified that the incidents in the bedroom had occurred 160 times. At trial, in cross-examination, she stated that it did not happen that many times. M.S. stated that at the preliminary hearing she felt “more intimidated” by defence counsel and used this as an excuse for her evidence with respect to the frequency of what occurred in the bedroom. In fact, the evidence about the frequency of the bedroom incidents was revealed by M.S. at the preliminary hearing in response to a question from Crown counsel, not defence counsel.

34As to the opportunity for the abuse to occur, M.S. was confronted with the suggestion that both her mother and brother were generally home in the 3:00 p.m. to 3:30 p.m. time period. M.S. was categorical in stating that this was not true. She denied that her mother came home at 3:00 p.m. because she and her brother did not get along.

35As for the incidents in the family pool, M.S. was confronted with the dichotomy that she asserts she was playing in the pool with her step-father, someone whom she described as having sexually abused her once or twice a week for nearly two years. M.S. responded to this by testifying that her step-father manipulated her and that she was only a child. She also stated that “as fucked up as it is I longed for him to love me”.

36Ultimately, the cross-examination was completed with the suggestion that everything testified to by M.S. was a fabrication. She had an opportunity to reveal the alleged sexual abuse when she was involved with the Children’s Aid Society (“CAS”). Entered into evidence as Exhibit 2 is a letter from the CAS, which is dated in or around the time frame when issues had arisen that required the involvement of the CAS who interviewed the various family members, including M.S. It was an agreed fact that there is nothing in the CAS file that relates to sexual impropriety. M.S. acknowledged that she talked to the CAS on multiple occasions, and that she did not talk about the alleged sexual abuse because she did not want to be taken out of her home. This has to be contrasted with her earlier evidence that she had always wanted to live with her natural father, and that her natural father had told her that when she was 12 years of age she could make up her own mind where she wanted to live.

37As for the timing of her disclosure of the alleged sexual abuse to her step-mother and the four week gap from that disclosure to when she ultimately went to the police, M.S. stated that she was recovering from the attempted suicide and that she had to “catch up with assignments at school”.

38As previously noted, the demeanour of M.S. in cross-examination was entirely different from that of her evidence in-chief. She moved from being a very soft-spoken individual to someone who was aggressive, loud and at times foul-mouthed. I did not intervene during the course of the cross-examination, particularly at times when M.S. used what can only be described as foul language. On one particular occasion, in a very soft voice that was clearly not intended to be heard, M.S. stated “How is this fucking fair?” Defence counsel, in my view appropriately asked M.S. what she had said, to which she responded “How is this fair?” M.S. either lied when confronted with the fact that she had just seconds before said “How is this fucking fair?” as opposed to “How is this fair?” Alternatively, she did not feel comfortable using the “F” word in front of the Court.

39M.S.’s evidence with respect to the opportunities that she says were available to her step-father to sexually abuse her have to be contrasted with the evidence of her mother, A.L. A.L. is now 55 years of age and is a retired school teacher. The essence of her evidence was to the effect that it was her habit to be at home for her children after school. She also denied that her husband, the accused, used corporal punishment, and that there were never any occasions that her daughter ever complained to her about M.L. using either physical or emotional abuse. She denied any knowledge that M.L. had put M.S. in the basement as punishment, nor did she have any knowledge that M.S. was even afraid of the basement.

40As for any issues within the family unit concerning M.S., A.L. stated that as her daughter got older she entered a phase when she was questioning, challenging and sometimes very outspoken. She stated that she did not react well to family rules.

41In addition to denying the evidence of M.S. that her mother would not be home after school until later in the afternoon, A.L. contradicted her daughter’s evidence that her son was late home in the afternoon because he was involved in sports. In fact to the contrary, A.L. testified that her son was generally home after school.

42On a completely collateral issue, A.L. was questioned about a conversation that she had with M.S. in August 2016, as it relates to $13,000 that had been kept in a trust fund for her by M.L.’s grandparents. A.L. testified that her daughter was aware of the trust and that there was no delay with respect to getting these monies into her hands. She denied that there was any threat of litigation. This evidence has to be contrasted with the evidence of M.S., who left the Court with the distinct impression that the only reason the monies were given to her when she was in college was because of the potential threat of litigation.

43As for her bathing habits, A.L. testified that when M.S. was young she would have a bath, but when she got older – around the age of nine or ten, she was in the habit of having a shower before bed. In the time frame in grade six and grade seven it would not be common for her to come home and have a bath.

44In cross-examination, A.L. was asked whether she would stay with her husband if he was convicted. Initially, she responded to that question with yes and that “He didn’t do it”. She then went on to state that “I wouldn’t stay with someone who did do that”. It was suggested by Crown counsel in closing argument that this demonstrated a clear bias on the part of A.L. to put M.L. in the best possible light. If the evidence of A.L. is believed it would, for the most part, take away those occasions when M.S. suggested that her step-father had the occasion to sexually abuse her.

Theory of the Crown

45Crown counsel argues that M.S. was entirely consistent with respect to her evidence as it relates to the three categories of the alleged sexual abuse and, as such, the Crown has proven its case against M.L. beyond a reasonable doubt. In contrast to the evidence of A.L., who Crown counsel described as a biased witness and someone who was evasive, the Crown argues that M.S. was entirely consistent with respect to the core of her evidence. A.L. on the other hand was biased, and her evidence established that it was beyond doubt that she was simply testifying to put M.L. in the best possible light that she could.

46While acknowledging that there may have been a few inconsistencies in the evidence of M.S., Crown counsel in my view correctly argues that such inconsistencies can be reconciled by reason of the fact that the events in question, if they did occur, occurred while M.S. was a child and therefore should not detract from the core of what she says happened to her when she was in grade six and grade seven.

47As for any theory of a motive, Crown counsel argues that it does not make sense that M.S. would make up the story that she testified to simply to allow her to remain in her father’s house.

48As for the evidence involving the events that occurred in Ottawa in 2016, the Crown argues that it would be wrong to use this evidence to reject M.S.’s evidence as it relates to the allegations of sexual abuse.

Theory of the Defence

49Counsel for M.L. suggested that this case boils down to a question of credibility and a W.D. analysis. Mr. Kinahan argues that M.S. was a less than credible witness and that there were significant discrepancies in her evidence, both with respect to the alleged sexual assaults and the evidence of what occurred in April 2016 at her college residence.

50As far as the inconsistencies in her allegations relating to the alleged sexual assaults, Mr. Kinahan points to the evidence that she gave at the preliminary hearing in response to a question from the Crown as to the frequency of the sexual assaults that occurred in her bedroom. In response to that question M.S. suggested that it occurred once or twice per week, whenever the opportunity arose for her step-father to take advantage of her. Mr. Kinahan suggests that when confronted with the simple math of the frequency occurring once or twice per week while she was in grade six and grade seven, M.S. accepted that it was not that frequent. Mr. Kinahan also points to the fact that it defies credibility that M.S. would get into the family pool and play with her step-father in a situation where she had been sexually abused over a lengthy period of time.

51As for the disclosure of when the sexual abuse is alleged to have occurred, Mr. Kinahan argues that the whole idea of the sexual molestation occurred as a result of the idea having been put into M.S.’s head by her step-mother when she was about to be thrown out of the family home. Mr. Kinahan also points to the fact that after the initial disclosure to the step-mother there was then an unexplained period of four weeks before M.S. went to the police, a four week period during which it is suggested that she had time to come up with her story.

52Mr. Kinahan rhetorically questions why the Court did not hear from the step-mother, and why the Crown did not call the police officer who took the initial statement from M.S. to explain why there was no investigation made of M.S.’s brother or mother.

53Mr. Kinahan argues that M.S. demonstrated in her evidence that she would lie in order to put herself in the best possible light. In that regard, it was pointed out that in one situation in Court where she had said something under her breath, which was picked up by the Court and the court reporter, that when confronted with what she had actually said M.S. gave a different version.

54Mr. Kinahan argues that the video, Exhibit 3, demonstrates not only that M.S. was significantly intoxicated and was the aggressor, but more importantly on the day after the incident she called the police in an effort to make a complaint against the security officers that they were the aggressors. When asked to provide a statement to the police and to present herself with photographs, M.S. declined. It is suggested that the only reason M.S. called the police was to extricate herself from a situation where she realized she was facing the possibility of expulsion from A[…] College.

55As for the evidence of A.L., Mr. Kinahan argues that her evidence was credible and that she would not lie simply to protect her husband. A.L.’s evidence is of course important, in that it detracts from the frequency or even the possibility that M.L. had the opportunity to sexually abuse his step-daughter. Specifically, if the evidence of A.L. is believed she was home shortly after school, and as such contradicted the evidence of M.S. that she was left alone at home after school, thereby giving the opportunity to her step-father to sexually abuse her.

Analysis

56I agree with both Crown and defence counsel that this case ultimately resolves itself into a determination of whether or not the evidence given by M.S. was credible. It has often been said in the past that the assessment of credibility is one of the most difficult tasks that either a trial judge or a jury will be confronted with in a criminal trial. The determination of whether or not a witness is truthful also engages a determination of whether or not the witness is reliable, both in terms of whether the witness’s recollections are accurate as well as the sincerity and credibility of their evidence. In R. v. Vickerson, 2005 CanLII 23678 (ON CA), 2005 O.J. No. 2798, the Court of Appeal commented on the assessment of a witness’s evidence at para. 28 as follows:

In assessing the evidence of a witness, a judge must consider the witness’s reliability as well as credibility: the integrity of the witness relates to the witness’s credibility and is of little assistance in assessing the reliability of the witness’s evidence: see R. v. Norman (1993), 3387 (ON CA). A failure to address contradictions in the evidence of an important witness indicates that a trial judge has failed to address the reliability of that witness’s evidence: see R. v. Gostick (1999), 3125 (ON CA). This is particularly true when the evidence of that witness bears the full weight of the case for the Crown: see R. v. Quercia (1990), 2595 (ON CA). Other errors relating to assessing reliability include the failure of a trial judge to consider the possibility of collusion between the witnesses as in R. v. Burke, 1996 CanLII 229 (SCC), or the failure to consider whether the witness’s identification of the accused was tainted as in R. v. Sutton, 1969 CanLII 497 (ON CA).

57In assessing the reliability of the evidence of M.S., I am mindful of the fact that to the extent that there may be contradictions in her evidence that she has given at trial versus the evidence that she gave at the preliminary hearing or in her police statement, that such inconsistencies must be viewed from the perspective that the events in question occurred when she was in grade six and grade seven, and as such occurred when she was a child.

58As for the question raised by defence counsel concerning the delay in the reporting of the alleged sexual abuse, I am also mindful of the fact that such delay in disclosure by itself cannot give rise to an adverse inference against the credibility of M.S.: see R. v. D.(D.), [2000] SCR 275, at para. 63. The approach with respect to the impact of the delay in disclosure is set forth in a decision of Hill J. in R. v. R.L., 2013 ONSC 4003, at para. 110 where Hill J. states:

It may be that in the circumstances of a particular case, the defence wishes to raise the issue of delayed complaint as counting against the veracity of the complainant's account of assault. The significance or evidentiary relevance, if any, of the complainant's failure to make such a complaint is contextual and will vary from case to case depending upon the trier of fact's assessment of the evidence relevant to the failure to make a contemporaneous complaint.

59In this case, I have come to the conclusion that there should not be any adverse inference drawn against the credibility of M.S. as it relates to the delay in the disclosure to her step-mother. As Hill J. in R.L., supra, stated:

...Put differently, the evidence in this regard could well be consistent with the experience of a sexually abused teenager…

60While I do not have concerns with respect to the timing of her disclosure to her step-mother, I do have concerns as it relates to M.S.’s credibility and reliability given the absence of any corroborating evidence from her step-mother as to the disclosure made to her and how the disclosure occurred. If the evidence of M.S. is to be believed, the disclosure occurred during the course of a loving conversation between herself and her step-mother, as opposed to during the course of a heated argument when she was faced with the possibility of being thrown out of the family residence. If the evidence of M.S. is to be believed, after the disclosure was made her step-mother simply went downstairs to watch television with M.S.’s father. Whether the disclosure took place during the course of a loving conversation or a heated conversation, it defies credibility to accept from a commonsense perspective that a step-mother to whom there has been disclosure made of a sexual assault would simply go downstairs to watch television. It is also difficult to reconcile the delay between the initial disclosure and the four week gap that then takes place before M.S. gives her statement to the police. While at least some portion of that gap can be explained as a result of the suicide and/or pill overdose, I do not accept M.S.’s evidence that the delay in going to the police can be explained by reason of her having to “catch up” on school assignments.

61Perhaps of greater significance, as previously noted, is the absence of corroborating evidence with respect to this important time period. It would have been a simple task for the Crown to have called the step-mother to testify with respect to what occurred on the evening when the alleged disclosure took place. For unexplained reasons the Crown did not call that corroborating evidence.

62In assessing the credibility and reliability of the evidence of M.S., and for that matter the evidence of A.L., the Court is entitled to evaluate the demeanour of a witness, recognizing however that a trial judge’s objective perception of demeanour can be a “notoriously unreliable predictor of the accuracy of the evidence given by a witness”: see Law Society of Upper Canada v. Neinstein, 2010 ONCA 193.

63The demeanour of M.S. as she gave her evidence in-chief was entirely different from her demeanour in cross-examination. Where in-chief she was extremely soft-spoken, and for the most part direct in response to questions dealing with questions of an obvious personal nature, in cross-examination she became an entirely different witness. She was combative, and at times a somewhat foul-mouthed individual. There was at least one occasion where M.S. said something under her breath that was clearly not intended for anyone in the courtroom to hear. What she said under her breath involved language which this and many other courts have heard in the past. When confronted with a request to clarify what she said, M.S. gave an explanation that was clearly contradicted by what she had said only seconds before. This contradiction can be either viewed as an out-and-out lie, or alternatively a reluctance on her part to use the “F” word in a courtroom. Where she had demonstrated a willingness to use four letter words during the course of her cross-examination, I find it hard to accept that the only explanation could be a reluctance to use the “F” word where she had used it already in her evidence. In my view, it detracted from her overall credibility as a witness.

64I also take into account that M.S. appears to have given a version of what occurred on the video in April 2016 to Crown counsel in preparation for trial, a version that did not coincide with what the video actually showed when played in Court. Again this would appear to reflect a desire on the part of M.S. to present herself in the best possible light, only to be confronted with the obvious truth once the video was played in Court.

65The video evidence demonstrates an entirely different version of what occurred in comparison to what M.S. testified to. This inconsistency can be explained either by reason of the fact that her memory was affected as a result of her significant state of intoxication, or as suggested by defence counsel it demonstrated an attempt on her part to minimize her own involvement in a situation precipitated by herself and her improper actions.

66The inconsistencies demonstrated by the evidence from the video are, of course, collateral to whether or not the sexual assaults alleged by M.S. occurred in the fashion that she testified to. It is entirely open to this Court to accept the evidence of M.S. as it relates to the alleged sexual assaults, while rejecting her evidence with respect to what occurred at her residence in 2016. While the college video, Exhibit 3, is collateral, it nonetheless significantly detracts from the veracity and reliability of M.S.’s evidence as a whole.

67There has been much written in the media over the last few years as it relates to how the evidence of a complainant is dealt with by the Court during the course of a criminal trial for sexual assault. There have been a number of changes made to protect a complainant, changes which are entirely appropriate. The fact remains, however, that one of the fundamental principles of our criminal justice system has never changed, and that is that the Crown always has the onus of proving the guilt of an accused beyond a reasonable doubt.

68As judges explain to a jury when dealing with the principle of reasonable doubt, absolute certainty is not required. Proof beyond a reasonable doubt fundamentally requires something more than probable guilt. A jury, or for that matter a trial judge, may conclude that an accused is probably or likely guilty. In such a situation, probable or likely guilt nonetheless requires an acquittal to be entered.

69In this case I am faced with a situation where there were inconsistencies in the evidence of M.S. as it relates to the actual allegations of sexual assault, the most obvious of which related to the frequency over which M.S. suggested she had been abused by her step-father in her bedroom. There were other inconsistencies, perhaps minor in nature, such as the inconsistency between whether or not her step-father was sitting on the bathtub or kneeling by the bathtub when the first incident of sexual assault occurred.

70There were many more significant inconsistencies in the evidence of M.S. as it related to what occurred in her college residence, as demonstrated by Exhibit 3.

71As it relates to the evidence of A.L., I found her to be an honest, forthright, soft-spoken and concerned mother. While it would be open for the Court to accept the submission of Crown counsel that her evidence was self-serving, it also has to be put into context that A.L. was not only the wife of the accused but also the natural mother of the complainant. There may have been aspects of the evidence of A.L. that demonstrated a bias in favour of her husband, but overall I found A.L. to be a believable and credible witness, particularly with respect to her evidence concerning the timelines when she was at home after school. I also accept her evidence as it relates to the bathing habits of M.S., evidence that is entirely consistent with commonsense that a child in grade six returning home after school would not likely have a bath. The evidence of M.S. in that regard is difficult to accept.

72While the cross-examination of A.L. did demonstrate a propensity on her part to minimize those occasions when she might have been delayed at school, and thereby give the occasion to M.L. to sexually abuse her daughter, I was not left with the impression that her evidence in this regard was intentionally meant to deceive the Court. To the contrary, I was ultimately left with the impression that A.L. was a truthful witness, albeit a witness who may have a bias to support the accused. That bias, however, in my view was not such that ultimately her evidence should be disregarded. I generally found A.L. a truthful and straightforward witness, whose evidence is credible and diametrically opposed to the evidence of her daughter M.S. Fundamentally, where the evidence of M.S. conflicts with the evidence of her mother A.L., I prefer the evidence of A.L. as being credible and reliable.

73In this case, where the Crown has a heavy onus of establishing the guilt of the accused beyond a reasonable doubt, I am far from satisfied that the evidence of M.S. meets that high standard. Accepting the evidence of A.L., which detracts from the opportunities available to M.L. to sexually abuse his step-daughter, I have concluded the only reasonable verdict in this case is a verdict of not guilty on all counts.

Justice M.L. Edwards

Released: August 3, 2017

NOTE: As noted in court, on the record, this written decision is to be considered the official version and takes precedent over the oral decision read into the record. If any discrepancies between the oral and written versions, it is the official written decision that is to be relied upon.