ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. R.M., 2017 ONSC 6709
COURT FILE NO.: CR-16-046
DATE: 2017-11-16
B E T W E E N:
HER MAJESTY THE QUEEN
S. Frenette, for the Crown
- and -
R.M.
R. Poirier, for the Accused
Accused
HEARD: June 20, 21 and 23, 2017 in Thunder Bay, Ontario
Mr. Justice J. S. Fregeau
Reasons for Judgment
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4(2) OF THE CRIMINAL CODE OF CANADA BY ORDER OF JUSTICE J. S. FREGEAU, SUPERIOR COURT OF JUSTICE, DATED JUNE 20, 2017
Introduction
[1] R.M., the accused, is charged:
That he, between the 1st day of December in the year 2013 and the 31st day of July in the year 2015 at the City of Thunder Bay in the said Region, did commit a sexual assault on S.S. contrary to s. 271 of the Criminal Code.
That he, between the 1st day of August in the year 2014 and the 31st day of August in the year 2014 at the City of Thunder Bay in the said Region, did commit a sexual assault on S.S. contrary to s. 271 of the Criminal Code.
That he, between the 5th day of September in the year 2015 and the 7th day of September in the year 2015 at Whitefish Lake in the said Region, did commit a sexual assault on S.S. contrary to s. 271 of the Criminal Code.
That he, between the 1st day of December in the year 2013 and the 31st day of July in the year 2015 at the City of Thunder Bay in the said Region, did for a sexual purpose invite S.S., a person under the age of sixteen years, to touch a part of his body, to wit: his penis, contrary to s. 152 of the Criminal Code.
That he, between the 1st day of August in the year 2014 and the 31st day of August in the year 2014 at the City of Thunder Bay in the said Region, did for a sexual purpose touch S.S. a person under the age of sixteen years directly with a part of his body, to wit: his penis, contrary to s. 151 of the Criminal Code.
That he, between the 1st day of August in the year 2014 and the 31st day of August in the year 2014 at the city of Thunder Bay in the said Region, did for a sexual purpose invite S.S. a person under the age of sixteen years to touch a part of his body, to wit: his penis, contrary to s. 152 of the Criminal Code.
That he, between the 1st day of December in the year 2013 and the 31st day of July in the year 2015 at the City of Thunder Bay in the said Region, did for a sexual purpose touch S.S. a person under the age of sixteen years directly with a part of his body, to wit: his penis, contrary to s. 151 of the Criminal Code.
That he, between the 5th day of September in the year 2015 and the 7th day of September in the year 2015 at Whitefish Lake in the said Region, did for a sexual purpose touch S.S. a person under the age of sixteen years directly with a part of his body, to wit: his penis, contrary to s. 151 of the Criminal Code.
General Background
[2] S.S. was born on […], 2004. She was 13 years old at the time of trial and approximately 9 ½ to 11 ½ years of age during the time frame set out in the indictment.
[3] S.S. is the biological daughter of C.W. and the maternal niece of S.W., the spouse of the accused. C.W. and S.W. have a close relationship. S.W. has a very close relationship with her niece, S.S.
[4] S.W. and the accused have no children together. The accused has two adult children from a previous relationship. The accused’s two children reside in Thunder Bay and enjoy a close relationship with their father.
[5] S.S. resides with her mother and stepfather in K[…] F[…], a small town a short drive outside of Thunder Bay. In the years prior to the fall of 2015, S.W. and the accused resided in a bungalow on J[…] Street in Thunder Bay. During the same time period, S.W. and the accused also had a summer camp, being a “fifth wheel” trailer located at a summer resort on Whitefish Lake, approximately a 45 minute drive west of Thunder Bay.
[6] During the relevant time period, C.W. was employed in Thunder Bay, Monday to Friday, 8:00 a.m. to 4:00 p.m. S.W. was not employed due to a disability and the accused was employed in Fort McMurray, Alberta, working two weeks and then having one week off, during which time he returned to Thunder Bay. This employment ended in March 2015, subsequent to which the accused was not employed.
[7] As a result of all of the above circumstances, S.S. spent a significant amount of time with S.W. and the accused, both at their Thunder Bay residence and at their Whitefish Lake camp. S.W. and the accused would care for S.S. and drive her to and from various activities at times when C.W. and her spouse were working or otherwise unavailable to care for S.S. S.S. would also have sleepovers at the home and camp of her aunt and the accused.
[8] The J[…] Street residence occupied by S.W. and the accused is a small bungalow with a finished basement. On the main floor there are a master bedroom, a spare bedroom, a home office, a kitchen and a living room. The basement contains a recreation room with a large wall-mounted television, two Lazy Boy chairs and a sectional couch. There are also a bathroom, a laundry room, an office, and a bar area in the basement. The basement bathroom is the designated smoking area in the home.
[9] The summer camp at Whitefish Lake contains a queen size bed in the upper or loft portion of the trailer and a pull-out couch and a reclining chair in the living area.
The Evidence
S.S.
[10] In general terms, S.S. testified as to four ongoing episodes of sexual contact allegedly inflicted on her by the accused during various time periods, three at his J[…] Street residence and one at the Whitefish Lake camp.
[11] S.S. testified that, when she slept over at her aunt’s home, for a period of time she slept between her aunt and the accused in their bed in the master bedroom. S.S. would wear a T-shirt, pajama bottoms and underwear to bed and the accused would wear his “underwear or boxers”.
[12] S.S. testified that, at approximately “Christmas of 2013 going into 2014”, the accused began to touch her vagina with “his hands, his fingers”, “in my underwear”. S.S. testified that this occurred while she and the accused were laying on their sides facing one another. According to S.S., the accused would place her upper leg on top of his leg or knee while touching her.
[13] S.S. further testified that the accused would “grab my hand and put it on his penis” causing her hand to touch his penis. She would then pull her hand away. According to S.S., S.W. would be in bed and asleep at these times. She did not try to wake her aunt up. When asked why not, she replied “I don’t know, I was scared to tell her”.
[14] S.S. testified that she would eventually roll over in an attempt to avoid the accused. According to S.S., the accused would then “push his penis up against my back”, “my lower back”. S.S. testified that she did not know what an erection was, that she did not know if his penis was hard or soft and that she did not know what ejaculation was. According to S.S., the accused would “go back and forth like push it up against and then just keep doing it” for “probably five minutes”. When asked if anything would ever come out of his penis during that time, S.S. testified “not at that time”.
[15] S.S. testified that the same thing happened in the bed “maybe 10 or 15 times” and that she eventually moved into the spare bedroom when she slept over at her aunt’s “because I didn’t want him to touch me anymore”.
[16] S.S. testified that she knew what a continuous positive airway pressure (“CPAP”) machine was and was able to describe one in general terms. She was aware that the accused used one and testified that “I think he would wear it after the events had happened”.
[17] When asked by Crown counsel why she thought the incidents began around Christmas 2013, S.S. replied that “he started buying me like big presents when it started happening, and that’s when I started getting a bit – like big presents. I got a Pandora charm bracelet at that time”. This evidence was not challenged on cross-examination.
[18] S.S. further testified as to incidents which allegedly occurred in the basement of the accused’s home.
[19] According to S.S., she would join the accused in the television area of the basement from time to time to watch sports. The accused sat in “his” Lazy Boy chair while watching hockey or football games and would ask S.S. to sit on his lap. S.S. testified that the accused would then pinch or rub her nipples, sometimes over and sometimes under her clothing.
[20] S.S. testified that this occurred both on occasions when the accused’s son C.M. was not present and when he was present and sitting behind them. According to S.S., if this occurred when C.M. was present and if C.M. got up, the accused would stop and “like pretend he was rubbing my shoulders or something”.
[21] S.S. testified that this happened “more than once” when she was 11 years old, in “2014, or 2015 like that hockey season”.
[22] S.S. next testified that there were “incidents” or “an incident” which occurred in the living room of the J[…] Street residence on the living room couch. According to S.S., she and the accused would lie down together on the couch with their heads together and her on the outside edge. S.S. testified that the accused would then pinch her nipples or masturbate with one of his legs propped up on the back of the couch. S.S. testified that she saw the accused’s penis out of his pants and that he masturbated “with his hand”.
[23] S.S. testified that these events or this event occurred while she was at the accused’s home during the mornings before her 2014 summer hockey camp. The incidents ended because they had to leave to go to hockey camp or somewhere else. When asked if anything came out of his penis when the accused was masturbating, S.S. testified, “yes, some white – something white came out”.
[24] S.S. testified that her 2014 hockey camp ran for four or five days on weekdays in late July or early August. Sessions began at approximately 12:00 noon, Monday to Thursday or Friday. C.W. would drop S.S. off at the accused’s home on her way to work for S.S. to be cared for during the mornings and then taken to the hockey camp. S.S. testified that she did not recall if her aunt was sleeping or at camp during these incidents. According to S.S., this occurred two times on different days before the 2014 hockey camp and also on “PA days” (professional development days at her school).
[25] S.S. also attended hockey camp in the summer of 2015. This camp began at 9:00 am. Her mother dropped her off before work. Given the timing, S.S. testified that she would not even go into the accused’s home. The accused would immediately take her to Tim Horton’s for breakfast and then directly to the hockey camp.
[26] S.S. testified about incidents that occurred in the living room of the accused’s Whitefish Lake camp during the summer of 2015, in the period of time prior to the 2015 hockey camp, when she and her aunt and uncle were at the camp.
[27] According to S.S., when she and the accused were on the Lazy Boy chair or on the couch, the accused would “be massaging her shoulders, but then he would make his way down with his hands onto my nipples” and touch her nipples.
[28] When asked if she ever told anyone about these incidents, S.S. testified that, a little over a month after the last incident in the summer of 2015, she typed a short note on her computer at home and asked her mom to read it. S.S.’s mother read her note and S.S. then deleted the note. Her mother cried and called S.W. on the telephone. S.W. came to S.S.’s home that day.
[29] S.S. testified that she chose that day to tell her mom about these incidents because she was supposed to go to her uncle’s home the next day and “I didn’t want to go there anymore”. S.S. also testified that, earlier that summer of 2015, she was supposed to stay at her uncle’s home in Thunder Bay before a trip to Calgary to visit her father. S.S. testified that she didn’t want to stay with just her uncle “because I didn’t know if things would get worse if I was alone with him, or what would happen”. S.S. therefore asked her aunt to come in from camp and sleep over at the J[…] Street residence with her, which her aunt did.
[30] S.S. testified that she was confused by the use of the word “previous” in relation to the 2014 and 2015 hockey camps when being interviewed by the police and a Children’s Aid Society employee in September 2015. S.S. testified that she realized the error later during the same interview but that she did not attempt to correct the confusion because she was “scared” and “I wasn’t sure what would happen if I tried to correct myself”.
[31] S.S. was cross-examined aggressively and extensively about the confusion between the 2014 and 2015 summer hockey camps. She testified that “I meant to talk about the one in 2014, but I got confused and I said that I was talking about the one in 2015”. She agreed that she did not correct this error while testifying on direct examination at the preliminary hearing. When asked why, she testified that it was “because I was scared, and I didn’t – I didn’t know…it was necessary, I don’t know”.
[32] When responding to a suggestion that she only corrected her error at the preliminary hearing on cross-examination when confronted with the accused’s debit card records establishing the inaccuracy and that she had been lying, S.S. testified that “no, it was true, I just got the timing mixed up. It was the one before that. What I said was still true”.
[33] It was suggested to S.S. that her aunt was present at the J[…] Street residence each day prior to the 2014 hockey camp. S.S. testified that that was possible, “but the events still happened and she was sleeping if that was the case. She could have been there, I’m not really sure, but I know that the events still happened”.
[34] Turning to the alleged incidents which occurred in her aunt and uncle’s bed, counsel asked S.S. how many incidents she thought there had been. S.S. testified that she didn’t know, “10, 15 maybe, probably 10” and that her aunt was present in the bed.
[35] S.S. agreed that she had told the police that the accused masturbated on her back during the bed incidents and that she did not say exactly that during her direct examination at trial or at the preliminary hearing. When it was suggested to S.S. that she was not sure that it was his penis against her back during these incidents, she testified that “I was sure, I mean, with everything else that happened I don’t know what else he would have used against my back that where it was located and everything…I’m almost positive it was”. When pressed, she did acknowledge that she could not be sure what was on her back and did agree that she was “guessing” that it was his penis.
[36] When cross-examined about the basement incidents, S.S. estimated that these occurred 10 times, during hockey games and that the accused’s son C.M. was present in the same room for four or five of those incidents. She agreed that incidents occurred when C.M. was present and sitting in the easy chair virtually adjacent to the chair that she and her uncle sat in, but qualified her answer by saying that the actual touching only happened when C.M. was out of the room.
[37] S.S. agreed that she was unsure if there were five, three or two incidents at the accused’s camp. She was firm in her recollection that incidents occurred on both the Lazy Boy chair and on the couch and that her aunt was present on the couch during at least one of these incidents.
[38] Counsel suggested to S.S. that she had heard of “white stuff” coming out of penises prior to the incidents, either at school or elsewhere. She replied that she “might have, I’m not really sure if I had at the time”. She stated that she had never seen it on her computer.
[39] On re-examination, S.S. was asked if she had ever seen, prior to these incidents, a penis with white stuff coming out of it on the internet or anywhere else. S.S. testified “no, I don’t think so. I think I had heard about things like that, but I didn’t – I’ve never seen”.
[40] Further on re-examination, S.S. testified that she was pretty sure it was her uncle’s penis on her lower back during the bedroom incidents and that “he would push it up against my back, and like rock, we would rock I guess…back and forth”.
C.W.
[41] C.W. is the mother of S.S. She confirmed that S.S. attended hockey camp in August of 2014 at the Port Arthur Arena in Thunder Bay and in August of 2015 at the Tournament Centre on Highway 61, south of Thunder Bay.
[42] According to C.W., her sister S.W. and the accused babysat S.S. “quite often” during the hockey camps, on P.A. days, over Christmas, on S.S.’s summer holidays and on occasions when C.W. and her partner went out for evenings. These babysitting sessions frequently included S.S. sleeping over at the J[…] Street residence of S.W. and the accused. C.W. testified that there were times that S.S. was at the accused’s residence when S.W. was not present. C.W. confirmed that S.S. also spent time at the accused’s Whitefish Lake camp. According to C.W., her sister spent a great deal of time during the summers of 2014 and 2015 at the Whitefish Lake camp.
[43] C.W. testified that S.S. first disclosed to her the incidents involving the accused at approximately 7:00 p.m. on September 9, 2015 by typing a note on her computer. C.W. testified that arrangements had been made, of which S.S. was aware, for the accused to take S.S. for an x-ray the next day and then bring her to school afterwards.
[44] C.W. testified that S.S. was “really scared” upon learning she was to be interviewed about the allegations involving the accused and “scared but…okay” just prior to making her statement.
[45] On cross-examination, C.W. confirmed that S.S. had told her, among other things pertaining to the incidents, that the accused’s penis was hard when she was lying in bed with the accused and her aunt.
[46] S.S.’s mother was cross-examined on the issue of gifts given to S.S. by the accused. C.W. testified that, in hindsight, “it seems kind of odd for…R.M.…to buy (S.S.) a big expensive gift and not…my sister or…take her to Pandora and buy her charms for her Pandora bracelet that he bought her”. C.W. disagreed with the suggestion that the accused also bought his spouse charms when he bought S.S. charms.
S.W.
[47] S.W. and the accused were married in December 1999 after living together for five years. They separated on September 10, 2015. S.W. was a teacher until December of 2000 at which time she became disabled. S.W. testified that she was on prescription medication for anxiety, depression and pain between 2013 and 2015. She would take these medications at night to help her sleep. According to her, once she fell asleep, she was “in a knockout dead sleep”. S.W. testified that the accused was aware of her use of these medications and their impact on her. She testified that she also wore earplugs to bed, both prior to and after the accused began to use the CPAP machine. She testified that she wore earplugs after the accused began to use the CPAP machine because of the noise made by the machine. S.W. testified that she often napped during the day between 2013 and 2015, generally because she would be tired as a result of pain she was experiencing.
[48] S.W. described the Whitefish Lake camp as a permanently parked recreational vehicle with a deck built onto it. It contains a queen size bed in the sleeping loft and a queen size pull-out couch, a loveseat and a reclining chair in the living area.
[49] S.W. testified that she and S.S. are “very, very close” and that she would often stay at camp with her and the accused. According to S.W., when S.S. was younger and staying with them at camp, she would sleep in a bed between her and the accused. Approximately a year and a half to two years ago, S.W. and S.S. began to sleep on the pullout couch because S.S. “didn’t want to be in the bed with (the accused)”, according to this witness.
[50] S.W. testified that S.S. stayed over at her J[…] Street residence for a variety of reasons, including if S.S. was off school or sick or if she had something on the next day and needed a ride and her mother was working. She further testified that S.S. “often” spent time in their basement alone with the accused to watch hockey, at which times S.W. observed S.S. sitting on the accused’s lap while he sat on his Lazy Boy chair.
[51] S.W. testified that, from the time S.S. was an infant until about 10 years of age, S.S. slept between her and the accused in their king size bed when sleeping over at her house. After that, S.S. stated that she no longer wanted to sleep in the bed with the two of them. At this point, S.W. and S.S. began to sleep in the spare bedroom when S.S. stayed over.
[52] S.W. testified that she and the accused took S.S. to her August 2014 hockey camp sessions, which began at noon at the Port Arthur Arena in Thunder Bay. S.S. was dropped off at their home at approximately 8:00 a.m. According to S.W., she generally liked to sleep in, so she was not always up when S.S. arrived on those mornings. If she was still in bed, the accused would meet S.S. and her mother when S.S. was dropped off. S.W. testified that there were other occasions when S.S. was at their home and alone with the accused.
[53] S.W. testified that on one occasion, about two years prior to September 2015, she came in from camp to stay at the J[…] Street residence at the request of S.S. because S.S. was uncomfortable staying there alone with the accused. According to her, the accused was “very angry” that she did so.
[54] On cross-examination, S.W. testified that she could recall only one occasion when she saw S.S. sitting in the chair at camp with the accused. She further testified that she saw S.S. sitting with the accused in his basement chair many times and that the accused’s boys, or one of them, were only there “the odd time” when S.S. was also there. She agreed that she would routinely go down to the basement unannounced and that she had never seen anything inappropriate between the accused and S.S.
[55] S.W. agreed that it was possible that the accused returned home from working in Fort McMurray on the Tuesday morning of S.S.’s 2014 hockey school. She could not recall on how many days the accused went with her and S.S. to the hockey school in 2014. S.W. tried to be up and out of bed for S.S. when she arrived at their home, but if the accused was home, she testified that she would sometimes sleep in and the accused would get up with her.
[56] On cross-examination, S.W. agreed that she slept with her bedroom door open and that the bedroom doorway is approximately 10 feet from the living room of the J[…] Street residence. When asked if she had ever seen S.S. and the accused on the living room couch together, she testified “maybe once or twice”. S.W. further testified that her medical condition required her to get up in the night to use the washroom only “the odd time”.
[57] S.W. was cross-examined on the issue of the gifts the accused gave to S.S. She agreed that both she and S.S. received a charm bracelet from the accused as a Christmas gift and that “most of the time” when the accused gave S.S. a charm for the bracelet, she was also given one. She also testified that on one occasion, the accused bought S.S. three gifts from Churchill, Manitoba yet bought her nothing and that he had given S.S. a “$150 camera”.
[58] On re-examination, S.W. testified that S.S. and the accused were often alone in the basement watching hockey games despite the fact that one or the other of the accused’s boys often visited to watch sports in the basement with the accused.
The Accused
[59] The accused denied that he ever touched S.S. inappropriately.
[60] The accused testified that, between Christmas of 2013 and March of 2015, he lived in Thunder Bay and worked in Fort McMurray on a two week out/one week home schedule. When returning home for his weeks off, he would leave Fort McMurray at approximately midnight on the Monday and arrive in Thunder Bay at 10:35 a.m. on Tuesday. He testified that during the summer of 2015, he stayed at his Whitefish Lake camp but for the week of S.S.’s August 2015 hockey camp, when he stayed in town and was responsible for taking S.S. to and from the hockey camp.
[61] The accused testified that his spouse and S.S. met him at the airport on the Tuesday morning of S.S.’s 2014 hockey camp and that he did not go with them to the hockey camp that day. He further testified that for the balance of that week, his wife would get out of bed before him and care for S.S. until it was time to leave for the hockey school at approximately 11:15 a.m. The accused testified that he was “never” alone with S.S. during this period, either before or after the daily hockey sessions.
[62] According to the accused, the two reclining chairs in his basement recreation room are plainly visible from each other and from anywhere on the sectional couch in that room. He further testified that “his” chair in the basement is visible in profile from the basement stairwell. The accused denied that he ever spent time alone with S.S. in his basement. He acknowledged that he spent time with S.S. in the basement, but asserted that someone, usually one of his two boys, was always there with them. He also denied ever having laid down with S.S. on his living room couch.
[63] The accused estimated that S.S. slept over with him and his wife at their Whitefish Lake camp between six and eight times between Christmas 2013 and September 2015. He agreed that S.S. had sat with him in the Lazy Boy chair at camp “a couple of times” but denied that he was ever alone with her when doing so.
[64] The accused estimated that S.S. slept with him and his wife in their bed at home four or five times between Christmas 2013 and September 2015. Other times S.S. slept with S.W. on the living room couch or in the spare bedroom, according to the accused. The accused disagreed with his wife’s evidence that she is a sound sleeper who slept through the night.
[65] On cross-examination, the accused maintained that of the eight to ten hockey games he watched in his basement with S.S., one or both of his boys was always present with them. He did agree that he would on occasion massage S.S.’s shoulders “if she was complaining of a sore back” and that he had also tickled her, both while the two of them were in his Lazy Boy chair.
[66] Neither Crown nor defence counsel addressed the issue of the accused giving S.S. gifts.
C.M.
[67] Mr. C.M. is the accused’s 29 year old son. He testified that he visited his father frequently when his father was on a week off in Thunder Bay. Most of their time together was spent in the basement of the accused’s home, talking and watching sports on television. Mr. C.M. testified that both of the basement chairs were visible from the top of the staircase and that people in the chairs would be visible from the top of the staircase.
[68] Mr. C.M. estimated that he had seen S.S. over at his father’s house between eight and ten times in the two years prior to September 2015. He did not recall ever going to his father’s house and finding his father alone with S.S. Mr. C.M. testified that S.S. always sat with his father in his chair and always appeared happy to do so.
[69] On cross-examination, Mr. C.M. agreed that he was not present for every hockey game his father watched and that he had no way of knowing if S.S. may have been alone with his father in his absence.
The Positions of the Parties
The Accused
[70] The accused submits that in each and every criminal trial, whether the complainant is an adult or a child, the onus remains on the Crown throughout to prove the charges beyond a reasonable doubt on the standard set out in R. v. Lifchus, [1997] 3. S.C.R. 320, 1997 CanLII 319 (SCC), 118 C.C.C. (3d) 1 and R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144. As the accused has testified in his own defence, it is further submitted that the court is required to consider all of the evidence in accordance with the guidelines set out in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397.
[71] The accused acknowledges that the evidence of child witnesses is to be analyzed differently than that of adults. However, it is submitted that this does not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases.
[72] The accused submits that there are a number of problems with the evidence of S.S. which impugn both her credibility and the reliability of her evidence.
[73] First, it is submitted that the inconsistency of S.S.’s evidence as to whether some of the events took place in the mornings before the 2014 or 2015 summer hockey camp amounts to a fundamental change in her position, essentially an attempt to mislead the police, and not merely an error as to time or place. On direct examination, S.S. testified that the incidents that she alleges occurred on the living room couch of the J[…] Street residence happened during mornings prior to the 2014 hockey camp, which began at 12:00 noon. On cross-examination, counsel established that S.S. had told the police in her September 15, 2015 statement that these events occurred in the mornings prior to the 2015 hockey camp and that she did not correct this apparent error during her direct examination at the preliminary hearing.
[74] Second, the accused submits that S.S. testified that it was the accused alone who took her to her 2014 hockey camp on the days the incidents occurred on the living room couch during the mornings prior to leaving for the 2014 hockey camp. The accused notes that S.W. testified on direct examination that she and the accused took S.S. to this hockey camp, that she confirmed this on cross-examination and that the accused testified that he went to the 2014 camp two of the days and with his spouse.
[75] Third, counsel submits that S.S. was inconsistent in her recollection of events that she alleges occurred at the accused’s Whitefish lake camp. On direct examination at trial, S.S. testified that events at the camp occurred both on the living room couch and the reclining chair in the living room. Counsel submits that on cross-examination it was established that S.S. had told the police that incidents at the camp only occurred on the chair and not on both the couch and the chair.
[76] In more general terms, the accused submits that the “implausibility” of the incidents occurring as alleged by S.S. should raise a reasonable doubt as to the accused’s guilt. More particularly, during the “10 to 15 times” S.S. said the accused touched her in the master bedroom of the J[…] Street residence, S.W. was always present in the bed directly beside S.S. Counsel also points out that the evidence establishes that S.W. has a medical condition that requires her to get up during the night to use the washroom. Finally, in regard to the bedroom incidents, counsel submits that S.S. alleged they occurred 10 to 15 times, yet at some point in time S.S. began to sleep in the spare bedroom rather than in her aunt and uncle’s bed.
[77] Counsel further submits that at the time of all other allegations, another adult was either present or close by during the incidents:
During the basement incidents, one or the other of the accused’s sons was present and S.W. would attend the basement frequently;
During the living room couch incidents, S.W. was present in the home in her bedroom, mere steps away from the living room area;
During the camp incidents, S.W. was present in the trailer and in fact on the couch next to the reclining chair.
[78] The accused further submits that S.S. testified about a total of 20 to 30 incidents, yet no one saw anything inappropriate occur, no one was told anything by S.S. and no one saw any unusual behaviour on the part of S.S.
[79] Finally, it is submitted that the accused testified, denied that anything happened and denied that he was ever alone with S.S. The accused submits that the cross-examination of him was ineffective and did not detract from his credibility. C.M. also testified that he never saw any inappropriate contact between his father and S.S. The accused submits that this witness was not shaken on cross examination.
The Crown
[80] The Crown submits that the evidence of S.S. must be analyzed taking into account that she was between 9 and 11 years old between 2013 and 2015, the time frame of the indictment, 11 years old at the time of disclosure and of her statement to the police, 12 years old at the time of the preliminary hearing and 13 years old at trial. The Crown submits that the cross-examination of S.S. did not detract from her credibility or the reliability of her evidence as to the core factual allegations of what was done to her and by whom.
[81] The Crown submits that the areas of S.S.’s evidence where inconsistency was shown related only to peripheral issues. Examples cited include her inability to recall exactly where her aunt was at the time of the living room couch incidents of 2014, the exact number of times incidents of one kind or another happened and whether the accused or the accused and S.W. took S.S. to the hockey camp in 2014.
[82] The Crown acknowledges that S.S.’s September 2015 statement to the police contained an obvious error when S.S. confused the 2014 and 2015 hockey camps. However, it is submitted that S.S. provided a logical explanation, that she was confused by the interviewer’s use of the word “previous” and that she was thereafter scared to correct her error. It is further submitted that this is also an inconsistency only as to the date of the events, not as to the nature of the incidents themselves, on which S.S. was consistent.
[83] As to the suggested implausibility of the events described by S.S. as having occurred, the Crown submits that simply because the actions of an accused committing sexual assaults can fairly be described as “furtive and risky” does not mean that a reasonable doubt should be found as to them having in fact occurred. Each case must be examined in context and based on its own particular facts.
[84] Commenting on the events which S.S. testified occurred in the bed of her aunt and the accused, the Crown submits that this was a king size bed, and that S.W. took sleep medication and testified she slept very soundly after doing so. S.S. testified that there was no talking or whispering. The rocking motion S.S. described, with the accused pushing his penis up against her lower back, is suggested to be physically logical and plausible and not something that would necessarily wake her aunt up.
[85] The Crown submits that the touching, rubbing or pinching of S.S.’s nipples in the basement of the J[…] Street residence and at the accused’s camp constitute slight, minimal actions, consistent with where they occurred and the fact that others were sometimes present or close by. It is further submitted that no one observed the accused’s inappropriate conduct because nobody was looking for inappropriate conduct between the accused and his niece, with whom he had a close relationship since birth.
[86] The Crown submits that it is not in dispute that S.S. disclosed these events to her mother the day before the accused was to take her for an x-ray on her ankle and that S.S. was aware that she was to be alone with the accused the next day. The Crown further submits that it is not in dispute that S.S. was uncomfortable with staying alone with the accused earlier in 2015, prior to leaving for a trip to Calgary. The Crown submits that both of these circumstances were corroborated, the former by her mother and the latter by her aunt.
[87] Finally, the Crown points to the accused’s emphatic and repeated insistence that he was “never” alone with S.S. The Crown submits that this was contradicted by S.S.’s mother and her aunt. It is also submitted that this position simply defies common sense in light of the fact that the evidence clearly establishes that the accused and S.W. were essentially “default primary caregivers” for S.S. and that S.S. was very frequently at their J[…] Street residence and at their Whitefish Lake camp for both day and overnight visits for a variety of different reasons.
The Assessment of the Credibility and Reliability of Child Witnesses
[88] The general guidance and instruction provided on this issue by the Supreme Court of Canada in R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30 and R. v. W.(R.) 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122 continue to inform the approach to be used by trial courts when considering the evidence of child witnesses.
[89] In R. v. B. (G.), Wilson J. felt it appropriate to address obiter comments of the Saskatchewan Court of Appeal regarding the credibility of child witnesses. Wilson J. agreed with the suggestion that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. Wilson J. qualified this statement and cautioned that trial courts must still “carefully assess the credibility of child witnesses” and not lower the standard of proof when dealing with children. Wilson J. agreed that flaws, such as contradictions, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult: see para. 48. Wilson J. concluded her comments on the issue as follows at para. 48:
In recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oath taking and corroboration, and I believe this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of “reasonable adult” is not necessarily appropriate in assessing the credibility of young children.
[90] In R. v. W.(R.), McLachlin J., as she then was, commented on what she referred to as “the general question of how courts should approach the evidence of young children” (para. 23). The Court noted an emerging “new sensitivity to the peculiar perspectives of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollections” (para. 24). McLachlin J. endorsed the above noted comments of Wilson J. in R. v. B. (G.) and reiterated that “these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases” (para. 25). McLachlin J. concurred with Wilson J.’s suggestion that the evidence of children is not to be approached from the perspective of rigid stereotypes, but rather on a “common sense basis”, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case: see para. 25.
[91] McLachlin J. went on to provide the following general guidance on this issue at para. 26:
It is neither desirable nor possible to state hard and fast rules as to when a witness’s evidence should be assessed by reference to “adult” or “child” standards – to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law’s approach to children’s evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this; In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.
[92] Given that the accused has testified and denied all allegations and also called other evidence, credibility is the central issue in this case. I am therefore required to apply the R. v. W. (D.) instruction, the original version of which I paraphrase as follows:
If I believe the evidence of the accused, I must acquit.
If I do not believe the evidence of the accused, but am left in reasonable doubt by it, I must acquit.
If I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[93] The standard of proof beyond a reasonable doubt is not to be applied piecemeal to individual items or categories of evidence. The Crown is not required to prove or disprove beyond a reasonable doubt any single fact, or any item of evidence, unless that fact or item is an element of the offence or an element of a defence: R. v. B.D., 2011 ONCA 51 at para. 96.
[94] The principles underlying W.(D.) are not confined to cases where an accused testifies and his evidence conflicts with that of Crown witnesses. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, a trial judge must relate the concept of reasonable doubt to those credibility findings. The defence evidence need not be believed on that vital issue. It is sufficient if, viewed in the context of all the evidence, the conflicting evidence leaves the court in a state of reasonable doubt as to the accused’s guilt, in which case the court must acquit: R. v. B.D., at para. 114.
[95] Steps one and two of the W.(D.) framework must be addressed in the context of all of the evidence. A consideration of the evidence of the accused in isolation, without weighing it against conflicting Crown evidence, is incorrect. No evidence should ever be assessed in isolation when determining credibility. The Ontario Court of Appeal approved of the trial judge’s jury instruction on this point in R. v. Hoohing, 2007 ONCA 577, 74 W.C.B. (2d) 676 at para. 15:
He also properly told the jury that they were to weigh the evidence cumulatively and not in isolation. A jury does not consider an accused’s version of events in isolation as if the Crown had led no evidence. When the jury is applying the first two prongs of the three-pronged test in W.(D.), they are deciding whether they accept the accused’s version of events or whether it leaves them with a reasonable doubt. Clearly they can only do that by assessing the accused’s evidence and the other evidence that favours the accused in the context of all the evidence. The evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is given that is contradictory, or casts doubt on the accuracy or reliability of the witness’ evidence, that evidence may no longer be believable, or in the case of an accused, may no longer raise a reasonable doubt.
[96] Further, acceptance of a strong Crown case that establishes guilt beyond a reasonable doubt at step three of W.(D.) can be sufficient reason to reject an accused’s exculpatory evidence at step one. The Ontario Court of Appeal made this clear in R. v. D (J.J.R.) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 at para. 53:
An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.
[97] It is important to emphasize the need for a demonstrably “considered and reasoned” basis for accepting the inculpatory evidence beyond a reasonable doubt before a finding of guilt can be made in such cases.
[98] The second step in the W.(D.) framework – you must acquit if you do not believe the testimony of the accused but you are left in reasonable doubt by it - does not require complete rejection or actual disbelief of the accused. It refers to a trier of fact being unable to positively believe the accused but being left in a state of uncertainty where the trier of fact does not know what to believe. This second step of W.(D.) captures the middle ground of being unsure where the truth of the matter lies. If, after a careful consideration of all of the evidence, a trier of fact is unable to decide whom to believe, the accused must be acquitted. The Supreme Court of Canada addressed this issue in R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R 152, at para. 11:
As to the second question, some jurors may wonder how, if they believe none of the evidence of the accused, such rejected evidence may nevertheless of itself raise a reasonable doubt. Of course, some elements of the evidence of an accused may raise a reasonable doubt, even though the bulk of it is rejected. Equally, the jury may simply conclude that they do not know whether to believe the accused’s testimony or not. In either circumstance the accused is entitled to an acquittal.
Analysis
[99] C.M. has a good relationship with his father and visited with him frequently in his father’s home, usually in the basement/television room. He testified that the basement chairs, and anyone occupying them, would be visible from the top of the basement staircase. He recalled seeing S.S. at his father’s home between eight and ten times between September 2013 and September 2015 but that he had never seen the two of them alone. It was his impression that S.S. was always happy to sit with the accused in his basement chair.
[100] Neither Mr. C.M.’s credibility nor the reliability of his evidence was challenged on cross-examination. He readily agreed that he had no way of knowing if S.S. may have been alone with his father in the house when he was not there.
[101] I have no reason not to accept the evidence of C.M..
[102] C.W. testified as to the frequency of S.S. being at her sister and the accused’s home and camp over the years prior to Sept 2015. She was not challenged on this in any way on cross-examination.
[103] C.W. and her sister are very close and, naturally given all the circumstances, S.W. and the accused frequently acted as caregivers for S.S. – “quite often” in C.W.’s words. This included during the 2014 and 2015 hockey camps, on school P.A. days, during S.S.’s Christmas and summer holidays, when S.S. was sick and when C.W. and her partner went out for evenings. The caregiving sessions frequently included sleepovers at the accused’s home. C.W. testified that S.S. did spend time alone with the accused at his residence when her sister was not present. This evidence was not directly challenged on cross-examination despite the fact that it contradicted the evidence of the accused on this fact.
[104] C.W. testified that S.S. disclosed the accused’s conduct to her the evening immediately prior to a day on which the accused was to have sole care of S.S. for the purpose of taking her to a medical appointment and that S.S. was aware that she was to be alone with the accused the next day. She also testified that S.S. was “scared but…okay” prior to being interviewed by the police.
[105] Neither the credibility of C.W. nor the reliability of her evidence was put in issue. I have no reason not to accept her evidence.
[106] It was apparent that S.W. was very close to S.S. and that she was hostile toward the accused. As a result, I choose to treat her evidence very carefully.
[107] Her evidence as to the frequency of S.S. being over at her home was consistent with her sister’s. She also testified that S.S. was “often” alone with the accused in their basement, during which times she saw S.S. sitting on the accused’s lap. She conceded that she had never seen any inappropriate behaviour when she routinely went into the basement unannounced. S.W. minimized the frequency of the accused’s sons’ visits to their home.
[108] S.W.’s evidence about S.S. sleeping between her and the accused in their bed while on sleepovers, until approximately age 10, was consistent with the evidence of S.S. When responding to the obvious question of how the incidents in their bed, as described by S.S., could have happened without her knowledge, she testified that she was “in a knockout dead sleep” as a result of medication and that she wore earplugs. She was visibly upset at this point in her testimony. On cross-examination, S.W. was not challenged on her sleep patterns.
[109] S.W. testified as to the routine for the care of S.S. during mornings prior to the 2014 hockey camp sessions – S.S. was dropped off at their home by her mother at approximately 8:00 a.m. and cared for by her and/or the accused until they left for hockey at about 11:15 a.m. Her evidence and that of the accused diverged as to which of them was out of bed to meet S.S., who cared for her during those mornings and how many times the accused actually went with her and S.S. to the hockey camp that week. S.W. agreed that she recalled seeing S.S. sitting with the accused at their camp only once and the two of them together on the living room couch of the J[…] Street residence only “once or twice”.
[110] The accused denied any inappropriate contact with S.S. His testimony was not significantly challenged on cross examination. His testimony must be analyzed not in isolation but in the context of all of the evidence before the court.
[111] The accused repeatedly and emphatically testified that he was “never”, over the course of the relevant time period, alone with S.S. anywhere, but for discrete times when no inappropriate contact with her was alleged, such as during the week of the 2015 hockey camp.
[112] When asked if he was ever alone with S.S. at his home during the mornings prior to the 2014 hockey camp sessions, he responded “never” three times. When asked what “the routine” was when S.S. returned to his home after these hockey sessions, the accused testified that “we just brought (S.S.) back home, and…my wife was always there”.
[113] In regard to the touching which S.S. alleged occurred in the accused’s Lazy Boy chair in his basement, it was put to the accused that his wife testified that he spent time alone in the basement with S.S. He responded “no”. He readily acknowledged that he spent time in the basement with S.S. but when asked the (leading) question “was someone always there when you were with (S.S.)?” he replied “correct…”. He agreed that S.S. sat on the arm of his Lazy Boy but only “with my sons present”. A little later in his direct examination, the accused was again asked if he had ever been alone “downstairs” with S.S. He responded, “downstairs never”. He was then again asked if he was ever alone in his house with S.S. when his wife wasn’t present. He answered “no” and then went on to add that the floors in his home do not creak, as his wife suggested, because of extensive renovations that he has done.
[114] The accused was next directed to the allegations of conduct which allegedly occurred on the living room couch of his home. He was asked if he had ever been “on that couch laying down with (S.S.)”. He answered “no” and added that “I don’t even sit in the living room”.
[115] When questioned about the events alleged to have occurred in his chair at his camp, the accused again acknowledged that S.S. had sat in his chair with him, but that this “never” happened when he was alone with her. The accused was also asked if he was “ever left alone in the bed with (S.S.)” in reference to the king size bed in his J[…] Street home. He replied “no”.
[116] The accused’s evidence also contained numerous references to physical distances between rooms and chairs and to sightlines, which was used in support of submissions as to the implausibility of the incidents having occurred. He testified that he had measured the distance between the armrests of the two reclining chairs in his basement and that they were “30 inches apart”. He further testified that the chairs are plainly visible from anywhere on the basement couch, from each other and from the top of the basement stairwell. The accused testified that his Lazy Boy chair at camp was “a couple of feet away” from the kitchen and “about three feet” away from the couch, such that he was “absolutely” always in view of his wife when he was with S.S.
[117] The accused’s evidence as to never being alone with S.S. is, in part, supported by that of his son who testified that he had never seen his father alone with S.S. It is inconsistent with the evidence of C.W., S.W. and obviously that of S.S. S.S.’s mother testified that there were times that S.S. was at the accused’s residence when his wife was not present. S.W. testified that she often napped during the day between 2013 and 2015. She also testified that S.S. “often” spent time alone with the accused in the basement of their home while also acknowledging that one or the other of the accused’s sons often visited to watch sports with the accused in the basement. S.W. further testified that the accused had been alone with S.S. during mornings prior to the 2014 hockey camp sessions because she slept in on some of these mornings.
[118] In considering the accused’s evidence in the context of the evidence of S.S., of his wife and of S.S.’s mother, together with all other evidence, I am left with the impression that the accused’s evidence was strategic rather than balanced and forthright.
[119] The evidence of all witnesses, the accused included, indicates that the accused and his wife had a very close relationship with S.S. going back to her birth.
[120] On cross-examination, the accused agreed that he had a close relationship with S.S., volunteering that “I was there the day she was born…” There is also evidence that the accused purchased several significant gifts for S.S. during the period 2013 to 2015. All of the evidence is consistent that S.S. was frequently cared for by the accused and/or his wife, both at their home and at their camp, for a variety of reasons and on a variety of occasions, including frequent overnight stays. It is not in dispute that S.S. slept in the same bed as the accused and his wife, both at camp and at their home, up until she was about 9 or 10 years old. It is not in dispute that S.S. frequently spent time sitting with the accused in his basement chair, watching the Leafs on television, during which time he would tickle her or massage her shoulders if she complained of having a sore back.
[121] Given the length and nature of their relationship and the frequency of visits, there is no logical reason for the accused never to have been alone with S.S. at home or at camp between 2013 and 2015. Yet, as noted above, the accused emphatically and repeatedly testified that he had never been alone with S.S. This evidence of the accused simply does not fit with all other evidence. It lacks an air of reality and strikes me as improbable and contrary to common sense.
[122] The evidence of S.S. must also be analyzed in the context of all other evidence and bearing in mind the direction of the Supreme Court in R. v. B. (G.) and R. v. W. (R.).
[123] The accused challenged both S.S.’s credibility and the reliability of her evidence.
[124] The accused urged the court to conclude that the inconsistency of S.S.’s evidence as to whether the incidents on the accused’s living room couch happened during mornings prior to the 2014 hockey camp, or prior to the 2015 hockey camp, amounts to a fundamental change in S.S.’s testimony as to these incidents. S.S. testified on direct examination that these incidents happened prior to the 2014 camp and that nothing inappropriate occurred during the 2015 camp. On cross-examination, the accused established that S.S. had told the police during her September 15, 2015 interview that the events happened on mornings before the 2015 camp and that she did not correct the error during her direct examination at the preliminary hearing.
[125] This inconsistency was addressed at trial during the direct examination of S.S. She was asked to explain why she had given different accounts about which of the two hockey camps the events had occurred prior to. S.S. answered as follows:
“Well, she asked me if it had been the previous hockey camp, and I said yes, and then I didn’t realize that what I had said was wrong until after the fact, and then I just – it got all wrapped up in I didn’t say anything”.
[126] When asked if she had realized that she and the interviewer were referring to different camps and, if so, if she had tried to correct the error, S.S. responded that she had realized the error but that she had not attempted to correct it because, “well, I don’t know, I was just scared. I wasn’t sure what would happen if I tried to correct myself”.
[127] On cross-examination on this inconsistency, S.S. testified that “I meant to talk about the one in 2014, but I got confused and I said that I was talking about the one in 2015”. Counsel then asked S.S. a confusing series of questions about the “morning” hockey camp (2015) and the “afternoon” hockey camp (2014) without reference to 2014 and 2015, and suggested that S.S. was referring to the “morning” hockey camp (2015) in her statement to police. S.S. responded as follows:
“No, I was referring to the other one, but it was – it was around lunch time, so I guess what I meant to say was that I would get dropped off in the morning and then I would be with him for the morning and then he would drive me around lunch time”.
[128] Counsel continued, asking S.S. whether she remembered when she “changed (her) mind that it was going to be…the afternoon hockey camp”. S.S. responded that, “I didn’t change my mind”. She acknowledged that, at the preliminary hearing, she had agreed that the contents of her police statement were correct. When asked why she did so, she replied, “because I was scared, and I didn’t – I didn’t know”. Counsel then had S.S. agree that she had not acknowledged and corrected her error at the preliminary hearing until he had told her that he had the accused’s debit card receipts confirming the discrepancy. When asked why she waited so long “to tell the truth”, S.S. replied “because I was scared”. Counsel then suggested to S.S. that “everything that (she) had told to the police up to that point in time about the first – about the second camp was a lie?” S.S. answered, “No, it was true, I just got the timings mixed up. It was the one before that. What I said was still true”.
[129] This portion of the cross-examination was aggressive and clearly established the inconsistency, that S.S. was aware of the inconsistency almost immediately and that S.S. said nothing to correct it until directly confronted with it during cross-examination at the preliminary hearing. However, S.S. was 11 years old when she gave her statement to the police, 12 years old at the preliminary hearing and 13 years old at the time of trial. The error, in my opinion, resulted from the interviewer’s unfortunate use of the word “previous” when questioning a scared, 11 year old child about the timing of sensitive matters in the context of hockey camps held during consecutive summers.
[130] The discrepancy must be considered in the context of other evidence of which clearly establishes that the 2015 hockey camp began at 9:00 am, that S.S. was dropped off at about 8:00 a.m. for the accused to care for and that he took her to Tim Horton’s immediately after she was dropped off without them even going into his home.
[131] In my opinion, this inconsistency is not material. S.S. withstood cross-examination about it, provided a logical and understandable explanation for both the inconsistency and her failure to correct it. The inconsistency related to the date of an event, not to the event itself. Throughout the cross-examination S.S. did not waiver as to the truth of her core allegation. This discrepancy alone does not impact my confidence in S.S.’s credibility or the reliability of her evidence.
[132] There is also some inconsistency between S.S.’s evidence and other evidence as to who took her to the 2014 hockey camp on days when she alleged incidents occurred during the mornings prior to leaving for the camp.
[133] On direct examination, S.S. testified that her mother dropped her off at the accused’s home before she went to work, that the accused would watch her until they had to leave for camp, that she didn’t know if her aunt was at the Whitefish Lake camp or sleeping and that the accused “would bring me to the – to this hockey camp for the days where the incidents happened”. S.W., on direct examination, testified that she and the accused took S.S. to the 2014 hockey camp sessions. The accused’s testimony on this point was consistent with that of his spouse – he went two days and with his spouse.
[134] It is apparent that S.S. is mistaken on this point. It is not an issue of credibility but reliability. S.S. has inadvertently given inaccurate testimony. Does this mistake, in and of itself, affect the overall reliability of her evidence? I find that it does not.
[135] Once again, this evidence relates to a peripheral issue, not directly to any of the complainant’s allegations against the accused. It also involves a 13 year old witness testifying as to events which occurred approximately three years earlier during a week in which several different people were involved in her transportation to and from this hockey camp. Common sense would suggest that there may be inaccuracies in her evidence about transportation details, as there were.
[136] The third challenge to the credibility of S.S. and to the reliability of her evidence relates to the events which are alleged to have occurred at the accused’s Whitefish Lake camp.
[137] On direct examination, S.S. testified that the accused pinched her nipples when the two of them “would be on the Lazy Boy chair, or on the couch at their camp” and that “at one or two times, my aunt might have been sleeping on the pullout couch”. On cross-examination, S.S. reiterated that this occurred on the couch and on the chair at camp. She was then challenged on the point, counsel suggesting that she had not previously stated that events had occurred on the couch and the chair at the camp. S.S. stated, “No, I think that’s been mentioned”.
[138] S.S. was then cross-examined on the contents of her September 15, 2015 statement to the police. She was asked, “Okay, where were you in the trailer?” She replied, “On the couch. Well, not on the couch, it was like a Lazy Boy chair…” Counsel then put the following statement to S.S., “I don’t see anywhere where anything ever happened on the couch, so is this the first time you told us about that, and I only see one incident?” S.S. replied, “I guess so. Well, there was multiple incidents, but they were the same at camp, so I only mentioned the – I only said one time that it happened”.
[139] My interpretation of this evidence is that S.S. was describing, in her statement to the police, one incident which occurred in the chair, in which the core allegation – pinching of her nipples – was the same as others that occurred at camp, both on the chair and on the couch. This apparent inconsistency was, in my opinion, satisfactorily explained by S.S. In my opinion, it does not detract from S.S.’s credibility or the reliability of her evidence.
[140] These three primary challenges to the consistency of S.S.’s evidence, considered collectively, do not shake my confidence in her credibility or the reliability of her evidence. These primary challenges are: (1) did some of the incidents occur before the 2014 or 2015 hockey camp? (2) who took her to the 2014 hockey camp?, and (3) did incidents at the Whitefish Lake camp happen only on the chair or on the chair and the couch? None of these inconsistencies relate to the core material factual allegations that S.S. has made against the accused. Given the age of the complainant, the overall number of alleged incidents, and the fact that incidents are said to have occurred at four locations over an extended period of time, it is neither surprising nor significant that the evidence of a 13 year old child contains some non-material inconsistencies as to peripheral facts. Her evidence as to what was done to her, approximately when and by whom remained consistent and credible after a prolonged and aggressive cross-examination.
[141] The accused also suggests that the number and nature of the incidents described, coupled with the known evidence as to the presence of other people during times the incidents allegedly occurred, raise a reasonable doubt as to whether they did or could have occurred as S.S. said they did.
[142] S.S. described 10 to 15 incidents happening in the master bedroom of the J[…] Street home during which the accused touched her vagina and masturbated by pushing his penis up against her lower back, such that the two of them “rocked” back and forth, all with S.W. sleeping directly beside the two of them. The incidents in the basement involved the accused pinching, touching or rubbing S.S.’s nipples, despite the frequency of the accused’s son’s presence in that room and S.W.’s frequent, unannounced visits to the basement. During the living room couch incidents, the accused is alleged to have masturbated to ejaculation while S.W. was home and in her bedroom 10 feet away. At camp, S.S. testified that her aunt was present on the couch sleeping on one occasion when the accused touched her nipples.
[143] The accused submits that it is implausible to the point of raising a reasonable doubt that these type of activities could have occurred without anyone observing anything, and without S.S. saying anything or exhibiting any unusual behaviour at any time.
[144] First, I place no weight on the fact that S.S. did not, prior to the September 2015 disclosure to her mother, say anything or exhibit any unusual behaviour. There is no “playbook” establishing how a child is expected to react to inappropriate contact from a close relative. A trier of fact cannot and must not reach conclusions as to credibility based on the reaction, or lack thereof, of a child complainant.
[145] Second, to suggest that it is improbable that a person will engage in inappropriate touching or sexual behaviour because there is a risk of discovery or observation is without foundation. There is no evidence before me allowing me to draw that conclusion. I also note that S.S. did not testify that she ever vocally complained or physically resisted any advances of the accused, other than removing her hand when he placed it on his penis.
[146] S.W. had medical issues for which she took medication, including sleep medication. Her evidence was that once she fell asleep she was “in a knockout dead sleep”. Her physical condition was not disputed by the accused. He did take issue with the suggestion that she slept soundly. I suspect that the truth lies somewhere between these two positions, with S.W.’s evidence being more accurate.
[147] Finally, I was struck by two portions of S.S.’s evidence which had a distinct “ring of truth” and which would be very difficult, if not impossible, for a 13 year old to convincingly fabricate.
[148] The first is her description of events which she said occurred in the bed while she was between her aunt and uncle. Among other things, S.S. testified that she would roll over such that her back was to the accused in an attempt to put a stop to his touching of her. She described the accused then pushing his penis up against her lower back and “go back and forth like push it up against and then just keep doing it”. When asked if anything ever came out of his penis on these occasions, S.S. replied, “not at that time”. On re-examination, albeit in response to a leading question, S.S. agreed that she was “pretty sure” that it was the accused’s penis on her lower back. She repeated that the accused would “push it up against my back, and like rock, we would rock I guess…back and forth”. In my opinion, S.S. accurately described a form of masturbation, short of completion, a sexual act this witness, at 9 and 13 years of age, was otherwise unfamiliar with. The suggestion, on cross-examination, that S.S. was guessing that she felt the accused’s penis on her back, was accepted by S.S. However, this evidence was satisfactorily clarified on re-examination.
[149] The second portion which had a distinct “ring of truth” is S.S.’s description of events which she said occurred while she and the accused were laying on the living room couch of the J[…] Street residence. These are said to have occurred in the absence of S.W., with her either at camp or sleeping in her bedroom. S.S. described, among other things, the accused masturbating “with his hand”. When asked if anything came out of his penis, S.S. testified “yes, some white – something white came out”. Defence counsel’s suggestion to S.S. that this is something she may have seen on or learned from the internet was ineffective. In any event, if S.S. was fabricating her description of ejaculation, why do so in regard to the accused’s actions on the couch and not in the bed as well? S.S. accurately and graphically described masturbation and ejaculation, an act the evidence establishes that she was not familiar with.
[150] I found S.S. to be a credible witness who communicated her evidence as to events occurring over two years before very well for a 13 year old child. There were inconsistencies in her evidence, which, as discussed, I did not find to be material and which did not significantly impact her credibility or the reliability of her evidence. I found her evidence to be internally consistent and externally consistent with all other evidence, but for that of the accused.
Conclusion
[151] Given the weaknesses of the accused’s evidence, which I have discussed, and the strength of the Crown case, including the evidence of the complainant, I do not believe the accused’s evidence nor am I left in a reasonable doubt by it. I am satisfied beyond a reasonable doubt, based on all of the evidence, that the events as described by S.S. have been proven beyond a reasonable doubt to have occurred. The specific acts which have been proven beyond a reasonable doubt are as follows:
Beginning in December 2013, in the master bedroom of the J[…] Street residence, on multiple occasions, the accused touched the vagina of S.S., placed her hand on his penis and pushed his penis up against her lower back;
In 2015, after S.S.’s 11th birthday on […], 2015, in the basement of the J[…] Street residence, the accused pinched and/or rubbed the nipples of S.S.;
During the month of August 2014, on the living room couch of the J[…] Street residence, the accused pinched or rubbed the nipples of S.S. and masturbated while lying next to her;
During the month of July 2015, at the accused’s Whitefish Lake camp, the accused touched the nipples of S.S.
[152] These acts support findings of guilt on counts 1, 2, 4 and 7 of the indictment. There will be findings of guilt and convictions on these counts. The allegations in support of counts 3, 5, 6 and 8 have not been proven beyond a reasonable doubt. The accused is found not guilty on these counts.
____”original signed by”
The Hon. Mr. Justice J. S. Fregeau
Released: November 16, 2017
CITATION: R. v. R.M., 2017 ONSC 6709
COURT FILE NO.: CR-16-046
DATE: 2017-11-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
R.M.
Accused
REASONS FOR JUDGMENT
Fregeau J.
Released: November 16, 2017
/sf