Indictment No. CR-16-8703

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

M.A.

R E A S O N S F O R J U D G M E N T

BEFORE THE HONOURABLE JUSTICE C. BRAID

On Friday, April 21, 2017, at KITCHENER, Ontario

APPEARANCES:

S. Marple

Counsel for the Crown

R. Loccisano

Counsel for M.A.

SUPERIOR COURT OF JUSTICE

TABLE OF CONTENTS

WITNESS: In-Ch. Cr-ex. Re-ex.

E X H I B I T S

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March 31, 2019

R E A S O N S F O R J U D G M E N T

BRAID J. (Orally):

I. OVERVIEW

M.A. is the great uncle of the complainant A.A. M.A. is charged with invitation to sexual touching, sexual interference and sexual assault on A.A. These offences are alleged to have been committed when A.A. was between the ages of five and six years old. M.A. denies the allegations. The issue at this trial is whether the Crown has proven beyond a reasonable doubt that the alleged events occurred.

II. OVERVIEW OF FACTS

A.A.'s parents separated when she was between the ages of four and six years' old. Following the separation, A.A.'s father would have A.A. in his care on weekends. He would often take A.A. to Kitchener to visit with his family. A.A.'s grandmother would accompany them. The three family members would visit on weekends and would stay overnight in Kitchener. These visits took place approximately every second weekend.

A.A.'s father testified that he dropped off A.A. and her grandmother at a home where A.A.'s great-grandfather resided. M.A. has lived in this house with his father who is A.A.'s great-grandfather since he moved to Canada in 1986. I shall refer to this house as M.A.'s house.

The great-grandfather was elderly and M.A. helped to take care of him. The family would often celebrate birthdays and other holidays together at this house with family and friends. A.A. testified about three separate incidents of sexual conduct by M.A. all of which took place at M.A.'s house when she was between the ages of five and six years' old.

The first incident took place in the guest room and involved M.A. showing A.A. his penis. The second incident took place while A.A. was on the hammock in the basement and involved M.A. taking A.A.'s hand and rubbing it on his penis over his clothing. The third incident took place in M.A.'s room and involved M.A. putting his finger and then his penis inside A.A.'s vagina.

When A.A. was approximately six or seven years' old, she began to resist visits to Kitchener. She would throw tantrums and become upset and sad. The visits to Kitchener became less frequent and there were no more overnight visits at M.A.'s house.

III. ANALYSIS

M.A. testified and denied the allegations. In considering this evidence, I direct myself in accordance with the Supreme Court of Canada decision in R. v. W.(D.) [1991] 63 CCC 3(d) 397:

"A. First, if you believe the evidence of the accused, you must acquit.

B. Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.

C. Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether on the basis of the evidence which you do accept you are convinced beyond a reasonable doubt by the evidence of the guilt of the accused."

There is no onus on the accused to prove anything in this case, but if the accused has raised a reasonable doubt, that ends the matter. Therefore, I proposed to analyze the evidence based on the test in W(D).

A. Do I Believe the Evidence of the Accused?

M.A. testified in his own defence. He denied all of the allegations. He stated that he had never met A.A. and therefore did not have the opportunity to commit these offences. He denied that A.A. had ever slept overnight at his house and stated that he never saw her at his home. M.A. was 73 at the time of trial and was approximately 61 to 62 years of age at the time of the alleged offences.

M.A.'s intellectual ability is somewhat limited. He immigrated to Canada from El Salvador in 1986 and worked as a labourer. He did not attend school past age 11. He has limited reading ability; he has difficulty with simple math questions, and he appears to have difficulty understanding a simple diagram of the layout of his own house even when the diagram is explained and translated into Spanish.

Defence counsel states that although there are portions of M.A.'s evidence that may affect his credibility, these portions of the evidence ought to be assessed in light of the intellectual limitations. Counsel submits that M.A. is:

"...lacking the sophistication and intellect in comprehending the consequences of his evidence as it relates to credibility."

He further submits that M.A. is, "Psychologically creating," a distance between himself and the allegations and that M.A. is not making a conscious effort to escape criminal culpability. I do not accept these submissions. They are pure speculation. I have no evidence that M.A. suffers from a mental or emotional disorder. In fact, when M.A. was asked about whether he had ever been diagnosed with any mental health issues, he replied, "No, I'm not dumb."

M.A.'s first language is Spanish and he was assisted by two certified and accredited Spanish interpreters throughout his trial. M.A. testified for the better part of a day. There was no suggestion that M.A. did not understand his oath to tell the truth. He testified that much of the complainant's evidence was "lies" and he clearly understood the difference between lies and the truth.

I have considered M.A.'s evidence as I would any other witness who promises to tell the truth. M.A. has attempted to created a version of events that would remove any opportunity for the offences to have occurred. In doing so, he refuses to admit neutral facts. M.A.'s inability to admit obvious facts causes significant concern about his overall credibility.

The following are some of the extreme positions taken by M.A. during the trial:

A. M.A. initially testified that he had never been to the basement of his own house in the 23 years that he had lived there. He then admitted going to the basement every second week to do his laundry, but stated that he did not know what was in the basement. I find that this evidence is internally inconsistent and implausible.

B. A.A., her father and her grandmother all testified about the hammock in the basement of the house. According to the grandmother, A.A.'s great-grandfather would rest on this hammock. Even though M.A. eventually conceded that he went to the basement to do laundry, he denied having seen the hammock in the basement. This evidence directly contradicts clear evidence from three other witnesses. I do not accept M.A.'s evidence on this point.

C. M.A. took the unreasonable position that during the 23 years he had lived in his house, he had never gone into the other two bedrooms in his home. He acknowledged that he lived in the house to help with the care of his elderly father, but denied setting foot in his father's bedroom at any time.

D. A.A., her father and her grandmother testified about their weekend trips to Kitchener. A.A. and her grandmother stated that they would stay overnight in the guest room of M.A.'s house. A.A.'s father stated that he would drop them off at the house.

Despite the fact that M.A. lived at that house, he testified that he had never met A.A. and that he never saw A.A.'s father at the house. I find M.A.'s evidence implausible on this point especially in light of the numerous family events held at M.A.'s house and at other houses in Kitchener.

E. M.A. stated that anyone could stay at the house at any time without invitation. However, he claimed that he did not have knowledge of anyone staying overnight at the house at any point in time. He testified that he goes to bed early, gets up early and then leaves the house.

It is unreasonable to believe that he would never have known of plans for overnight guests and that he never saw those guests at any point during their stay in his own home.

F. A.A., her father and grandmother all testified about M.A.'s drinking problem. On the other hand, M.A. testified that he did not drink very much and did not drink daily. He acknowledged that he had participated in counselling for alcoholism, but he minimized how much he drank saying that he only drank a small bottle of liquor every 15 days.

In assessing the credibility of an accused, the court is entitled to consider conflicting, credible evidence. An outright rejection of an accused's evidence based on a considered and reasoned acceptance of the truth of conflicting, credible evidence is as much an explanation for the rejection of an accused's evidence as a rejection based on a problem identified with the way the accused testified for the substance of the accused's evidence (see R. v. D.J.J.R. [2006] 215 CCC 3(d) 252).

M.A.'s evidence conflicts with the evidence of the four Crown witnesses in many ways. With respect to the evidence of A.A.'s overnight visits to M.A.'s house, I prefer the evidence of the other witnesses over that of M.A. I find as a fact that A.A. slept overnight at the house almost every second weekend after her parents separated. She slept in the bedroom beside M.A.'s room. I reject M.A.'s evidence that he had never met A.A.

M.A.'s evidence changed during his testimony. For example, he initially said that he had never gone down to the basement but later said he would go down to the basement to do laundry but would not take notice of what was down there. M.A.'s evidence was frequently inconsistent and implausible. His inability to admit neutral facts creates significant credibility concerns that cannot be reconciled. I do not believe M.A.'s evidence and I reject his evidence outright.

B. If I do not believe the statement of the accused, am I left in a reasonable doubt by it? For the reasons set out above, I do not believe M.A.'s evidence. In addition, when considering the evidence as a whole, his evidence does not raise a reasonable doubt as to guilt. As I have stated above, M.A. was not a credible witness. His evidence does not create a reasonable doubt.

C. On the evidence that I do accept, am I convinced beyond a reasonable doubt of the guilt of the accused? Even though I am not left in doubt by the evidence of the accused, I must still ask whether on the basis of the evidence, which I do accept, that I am convinced beyond a reasonable doubt of the guilt of the accused.

At trial, A.A. testified about events that occurred approximately 11 or 12 years ago. A.A. stated that she learned about sexuality and consent when she was approximately 12 years old. At this point, she was able to put into context what had happened to her when she was five and six years old. She began having flashbacks. She also experienced a dream about being sexually assaulted.

Defence counsel argues that A.A. has blended these flashbacks, dreams and rumours with reality which has altered her memories of the events. It is suggested that A.A. attributed the events to the accused because her dreams and flashbacks were influenced by rumours told to A.A. by her mother. I do not accept this submission.

A.A. was clear that the rumours did not impact her recollection and that the flashbacks occurred before her mother told her anything about the rumour. A.A. already had an understanding of what happened and the memories that were always with her even before hearing the rumour from her mother.

A.A. was adamant that she remembered what M.A. looked like and that he was the perpetrator of the three incidents. As she grew older, she saw him at family events. She stated that the image of his face will never get out of her head. A.A. was very clear that her memories and dreams are not the same and that her dream about being sexually assaulted did not incorporate what had actually happened to her.

Defence counsel further argues that A.A.'s evidence regarding the hospital bed establishes that A.A. is confused about whether portions of her memory are truly what happened. I do not accept this submission. A.A. testified that there was a hospital bed in the living room for her great-grandfather. Her father testified that there was some kind of bed set up in the living room for the great-grandfather.

The grandmother testified that there was a fold-up bed in the living room for guests to sleep on. The father and grandmother's evidence establishes that there was some kind of bed in the living room which provides some corroboration for A.A.'s evidence on this point.

I have considered the evidence at trial and have observed the witnesses testify. In particular, I have carefully considered the evidence of A.A. I am mindful that there is no corroboration of the three incidents. However, the following evidence corroborates A.A.'s evidence and supports her credibility:

A. A.A.'s mother and father testified that they separated when A.A. was between four to six years old and that she would travel to Kitchener with her father and not her mother. This corroborates A.A.'s evidence about the timing and location of the incidents.

B. A.A.'s description of M.A. was as follows, "In his 60s, black hair, glasses, scruffy facial hair and smelling of alcohol." This description is supported by some of the witnesses. M.A. was 61 or 62 years old at the time of the alleged incidents. A.A.'s father and grandmother testified that M.A. wore glasses. Her grandmother testified that M.A. dyed his hair black. M.A. testified that he shaves every three to seven days and acknowledged that this would sometimes leave rough facial hair. All of the witnesses testified that M.A. drank alcohol, although M.A. minimized the amount of alcohol that he consumed on a daily basis.

C. I note that A.A.'s description of M.A. as being six feet tall is different than the evidence of her father who says that M.A. is six foot five inches tall. I further note that A.A.'s description of M.A. wearing high-waisted pants conflicts with the evidence of her grandmother who testified that M.A. wears his pants below the waist.

Although A.A.'s description on these two points was contradicted by the other evidence, the identity of M.A. as the perpetrator was not seriously challenged in cross-examination.

D. A.A.'s father and grandmother confirmed that A.A. would stay at M.A.'s house overnight with the grandmother.

E. A.A.'s grandmother confirmed that A.A. would sleep in the guest room which was the bedroom next to M.A.'s room. M.A. described this as the great-aunt's bedroom which was next to his bedroom.

F. A.A.'s father and grandmother confirmed that there was a hammock in the basement.

G. A.A.'s grandmother confirmed that there was a portrait of the great-grandfather in his bedroom.

H. A.A.'s grandmother confirmed that she would go grocery shopping with A.A.'s great-aunt and recalls a specific occasion when they went in the morning during the summer.

I. A.A.'s evidence regarding the location of M.A.'s home and the description of the layout of the home was detailed and was supported by the evidence of the other witnesses.

J. A.A.'s evidence regarding the people present in the home was also detailed and supported by the evidence of the other witnesses.

A.A. stated that she did not want to go back to Kitchener after the three incidents occurred. A.A.'s father, mother and grandmother all testified that A.A. began saying that she did not want to go to Kitchener when she was around six years old. The mother described that A.A. would throw a tantrum and would be crying. The grandmother stated that A.A. would be sad.

The timing of A.A.'s change in attitude about going to Kitchener is significant. This provides corroboration of A.A.'s evidence regarding the three incidents and her emotional reaction to them. Defence counsel relies on R. v. Stewart 1994 CanLII 7263 (ON SC), [1994] O.J. No. 881 ONCA and submits the court should be cautious about accepting the evidence of young complainants and risk shifting the burden of proof. It is clear that the Crown must prove its case beyond a reasonable doubt.

In dealing with the testimony of children, the Supreme Court of Canada has stated that the court must take a common-sense approach:

While children may not be able to recount precise details, and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it (see R. v. B.G. 1990 CanLII 7308 (SCC), [1990] SCJ No. 58)."

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. The witness' recollections are based on childhood perceptions and misperceptions and must be assessed on that basis. Credibility and reliability should be weighed with due regard to the witness' age and mental development at the time of the offence.

Children do not necessarily perceive the word as do adults. A.A. was 17 years old at the time of giving her evidence at trial. She was between the ages of five and six at the time of the events. A.A. testified about the three incidents in significant detail. Although she was unable to articulate the exact chronology of the three incidents and could not pinpoint exact dates, this is understandable in light of her young age at the time of events.

I find that A.A. gave her evidence in a reasoned and articulate manner. When she was uncertain, she would say so. She was a credible and compelling witness. Her evidence was consistent and had a ring of truth. She provided details regarding her own sensory perceptions of the events. She was emotional at various points in her testimony, but did not embellish or exaggerate her evidence. She was clear about what she remembered and what she did not. She was steadfast in her evidence that the three incidents happened and in her identification of M.A. as the person who committed these acts.

A.A. described the incidents in great detail and in the manner that a child might perceive the world as she was at the time of the incident. As a young child, she did not understand the sexual nature of the conduct. A.A. was unable to say the exact order in which the three incidents occurred. She believed that the first and third incident happened on the same day, but was unable to say whether the second incident happened on the same day as well.

In light of A.A.'s young age at the time of the events, this failure to provide an exact chronology does not impact her credibility. I find that the Crown has proven beyond a reasonable doubt that the following events occurred when A.A. was between the ages of five and six years old:

1. First Incident.

A.A. woke up in the guest room of M.A.'s house. The sun was on her face and it was morning. She awoke to find M.A. sitting on the corner of the bed. She asked where her grandmother was and M.A. said she had gone grocery shopping. M.A. unbuckled and unzipped his pants and exposed his penis to her. M.A. said, "Shhh," and put his finger to his mouth as a gesture to keep quiet. A.A. heard her grandmother and great-aunt come into the house. M.A. ran to his room.

2. Second Incident.

A.A. was swinging on the hammock in the basement. M.A. stood in front of her, said, "Shhh," and put his finger to his mouth as a gesture to keep quiet. M.A. grabbed her right hand and pushed it onto his genital area over his pants. He moved her hand in a stroking motion. He put his other hand on A.A.'s neck cupping it. They heard A.A.'s great-aunt coming downstairs and M.A. ran to the bathroom.

3. Third Incident.

The third incident occurred at night. A.A. was lying awake in bed in the guest room and the covers were over her. The door was opened because she was afraid of the dark and the hallway light was on. M.A. came into the room and told her to follow him to his room. They entered his bedroom and M.A. closed the door.

A.A. was wearing purple pyjamas that consisted of a t-shirt and pants. M.A. took off his clothes and was fully naked. M.A. told her to undress and helped her remove her shirt. She initially kept on her underwear but M.A. asked her to remove them. A.A. was standing between the dresser and a bed.

M.A. knelt down and put his finger inside her vagina. This lasted for a second. It hurt A.A. and she made a noise. M.A. told her to go to the corner of the bed which she did. She laid down on her back. M.A. took Vaseline from the top of his dresser and applied it to his penis. M.A. either spread her legs or they were already spread.

M.A. came on top of her and put his penis into her vagina. This lasted seconds. M.A. said, "Shhh," and held his finger to his mouth. His full body weight was on her and she could barely breathe. She felt pain below her waist in her vagina. M.A. did not use a condom and did not ejaculate. M.A. got up and told her to put her clothes on. He took her out of his room. A.A. was unable to say whether M.A.'s penis was soft or erect at the time he put it in her vagina.

A.A. was a young child at the time of these events. I am unable to determine beyond a reasonable doubt that there was full intercourse. However, I find that M.A. attempted intercourse with A.A. and that there was partial penetration of her vagina with his penis.

CONCLUSION

I find that A.A. was five or six years old at the time of the incidents and was therefore a person under the age of 16 years. With respect to the charges before the court, I make the following findings:

1. On count one, the Crown argues that the first incident constitutes invitation to sexual touching. However, the Crown has not proven beyond a reasonable doubt that M.A. invited A.A. to touch his body. I decline to find that the first incident could support a finding of guilt on count one.

2. However, during the second incident, M.A. grabbed A.A.'s hand and pushed it onto his genital area with a stroking motion. By these actions, I find that M.A. actively invited A.A. to directly touch his body with a part of her body for a sexual purpose. There will be a finding of guilt on count one.

3. On count two, I find that M.A. directly touched A.A. with his body for a sexual purpose. My findings of fact with respect to the second and third incidents are set out above. These acts were committed by M.A. for a sexual purpose. There will be a finding of guilt on count two.

On count three, I find that M.A. sexually assaulted A.A. during the second and third incidents. There will be a finding of guilt on count three. I have endorsed the indictment as follows: For reasons given orally, there will be a finding of guilt on counts one, two and three.

MR. LOCCISANO: Thank you, Your Honour.

THE COURT: Just a moment. Just amending that endorsement: For reasons given orally, I find Mr. A. guilty on counts one, two and three.

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