ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CJ 8955
DATE: 2018/06/01
BETWEEN:
HER MAJESTY THE QUEEN
– and –
D.M.
Accused
Sidney McLean, for the Crown
Stephen DiClemente, for the Accused
HEARD: April 3 and 4, 2018
D.A. BROAD
REASONS FOR JUDGMENT
[1] The accused D.M. is charged with four sexual offences alleged to have been committed on the complainant J.S. between the 1st day of September, 2013 and the 31st day of December, 2014. The first two counts are as follows:
1 - Sexual assault contrary to section 271 of the Criminal Code of Canada;
2 - Touching for a sexual purpose a person under the age of 16 years, directly with
a part of his body, contrary to section 151 of the Criminal Code of Canada.
[2] The indictment sets forth four counts, but courts 3 and 4 are duplicative of counts 1 and 2 respectively.
[3] The complainant J.S. was 7 years of age at the beginning of the charge period and was 9 years of age at the end of the charge period.
[4] J.S. was the daughter of D.M.’s then common-law spouse A.S..
[5] A.S. died on July 2, 2015. The cause of A.S.’s death was not referred to in the evidence at trial.
Basic Principles
[6] It is useful to review the basic principles which apply to this prosecution and the nature of the burden of proof which rests on the Crown.
[7] The first principle is that D.M. is presumed to be innocent of the charges, unless or until the Crown has proven each of the essential elements of the individual counts in the indictment beyond a reasonable doubt.
[8] Reasonable doubt is not far-fetched or frivolous doubt. It is doubt based on reason and common sense and which logically arises from the evidence or lack of evidence led at trial. In order to convict him, it is not enough to find that D. M. probably or likely committed the offences with which he is charged. However, the Crown is not required to prove with absolute certainty that he committed the offences.
[9] The existence or non-existence of reasonable doubt is to be based on the totality of the evidence. It is not necessary for the Crown to prove each individual piece of evidence beyond a reasonable doubt.
[10] In light of the age of J.S. at the time of the alleged incidents giving rise to the charges, consent is not a relevant issue in respect of the incidents.
Principles Governing the Assessment of the Evidence
(a) Distinction between Credibility and Reliability
[11] Particularly in a case such as this, involving alleged sexual offences dating back a number of years, recognizing the distinction between credibility and reliability is essential to a proper analysis of a witness’ evidence.
[12] As confirmed by Watt J.A. in R. v. C. (H.) 2009 ONCA 56 (Ont. C.A.) credibility has to do with a witness's veracity, whereas reliability has to do with the accuracy of the witness' testimony involving a witness' ability to accurately observe, recall and recount events in issue. Veracity refers to the truthfulness or honesty of the witness. Although a witness whose evidence on an issue is not credible cannot give reliable evidence on the same point, credibility is not a substitute for reliability. A credible witness may be honestly mistaken and may thereby give unreliable evidence.
(b) Burden of Proof on the Crown
[13] D.M. led no evidence at trial. The paramount question is therefore whether, on the whole of the Crown’s evidence, I am left with a reasonable doubt about the guilt of D.M.. That is the central consideration before me.
[14] In the recent case of R. v. Nyznik 2017 ONSC 4392 (S.C.J.) Justice Molloy, made the following important observations at para. 16:
It is sometimes said that the application of these principles is unfair to complainants in sexual assault cases, that judges are improperly dubious of the testimony of complainants, and that the system is tilted in favour of the accused. In my opinion, those critics fail to understand the purpose of a sexual assault trial, which is to determine whether or not a criminal offence has been committed. It is essential that the rights of the complainant be respected in that process and that decisions not be based on outmoded or stereotypical ideas about how victims of assault will or will not behave. However, the focus of a criminal trial is not the vindication of the complainant. The focus must always be on whether or not the alleged offence has been proven beyond a reasonable doubt. In many cases, the only evidence implicating a person accused of sexual assault will be the testimony of the complainant. There will usually be no other eye-witnesses. There will often be no physical or other corroborative evidence. For that reason, a judge is frequently required to scrutinize the testimony of a complainant to determine whether, based on that evidence alone, the guilt of an accused has been proven beyond a reasonable doubt. That is a heavy burden, and one that is hard to discharge on the word of one person. However, the presumption of innocence, placing the burden of proof on the Crown, and the reasonable doubt standard are necessary protections to avoid wrongful convictions. While this may mean that sometimes a guilty person will be acquitted, that is the unavoidable consequence of ensuring that innocent people are never convicted.
(c) Evidence of Children
[15] The Supreme Court of Canada has given direction respecting the approach to be taken in assessing the credibility of child witnesses. 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. This is not to say, however, that the court should not carefully assess the credibility of child witnesses nor does it suggest that the standard of proof must be lowered when dealing with children (see R. v. B.(G.) 1990 (SCC), [1990] 2 S.C.R. 30 at para. 48, per Wilson, J.).
[16] Wilson, J. in B.(G.) went on to observe that a flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult, and that 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. While the credibility of every witness who testifies before the courts must be carefully assessed, the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children.
[17] The Court of Appeal in R. v. H.C. 2009 ONCA 56 (C.A.) echoed this direction at para. 42, pointing out that “flaws, such as contradictions, in the testimony of the child may not toll so heavily against credibility and reliability as equivalent flaws in the testimony of an adult.”
[18] McLachlin, J., as she then was, adopted the comments of Wilson, J. in B.(G.) in R. v. W.(R.) 1992 (SCC), [1992] 2 S.C.R. 122, pointing out that 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. McLachlin, J. reiterated and emphasized, in reliance on B.(G.), that the evidence of children remains subject to the same standard of proof as the evidence of adult witnesses in criminal cases, and that protecting the liberty of the accused and guarding against the injustice of a conviction of an innocent person requires a solid foundation for a verdict of guilt, whether the complainant be an adult or a child (see para.25).
Background
[19] J.S.’s biological mother and father, A.S. and B.S., respectively, were previously married and separated in 2008 or 2009. Following the separation A.S. had custody of J.S. and her brother C.S., who is two years younger than J.S.. A.S. and the children resided with D.M. in a single-family home in the City of Cambridge.
[20] For approximately two years prior to J.S. and C.S. coming to live with him on June 30, 2015, B.S. had access to the children on alternate weekends and during the summer for up to two weeks.
[21] In approximately 2011 to 2012 A.S. and D.M. began developing an addiction to alcohol. Their addictions quickly became severe as well as chronic.
[22] For approximately six months leading up to late June 2015, A.S., D.M., J.S. and C.S. lived with A.S.’s mother S.G. and her father (J.S. and C.S.’s maternal grandparents), in an effort by A.S. and D.M. to deal with their addiction to alcohol.
[23] In late June 2015 A.S. got into a dispute with her father over the issue of her drinking and she, D.M. and the children returned to their home in Cambridge. After returning home A.S. and D. M. resumed their excessive consumption of alcohol.
[24] On June 30, 2015 D.M. and A.S. became severely intoxicated. J.S. called her maternal grandmother S.G. and told her that her mother A.S. and D.M. were upstairs lying down. The children were left on their own and there was nothing to eat in the house. J.S. told her grandmother that she was calling a taxi to bring her and her brother to her home.
[25] S.G. instructed J.S. to remain in the house and that her aunts M.H. and V.L. (sisters of A.S.) would come to get her and her brother. M.H. and V.L. attended to pick up the children and took them to V.L.’s home in Paris, Ontario. M.H. and V.L. then called B.S. who came to take the children to his home outside of Woodstock, Ontario.
[26] When he was advised of the situation B.S. was concerned that when A.S. and D.M. awoke they would wonder where the children were. Prior to taking the children home with him he therefore attended at the police station to fill out a report of the facts that he knew of, confirming that the children were with him and they were safe.
[27] B.S. testified that prior to June 30, 2015 he had no personal knowledge of A.S.’s domestic circumstances nor of her alcohol consumption, reporting that, during their marriage, A.S. had not consumed alcohol at all.
[28] On the following morning, July 1, B.S.’s sister K.S. (aunt of J.S. with whom she had a very close relationship) attended at B.S.’s home. J.S. spoke to K.S. privately, reporting the allegations involving D.M. which form the subject matter of this proceeding.
[29] K.S. was very upset at what J.S. had related to her and called her parents (J.S.’s paternal grandparents) to report what J.S. had told her. Her parents who attended at B.S.’s home, at which point K.S. related to B.S., in their parents’ presence, what J.S. had told her. B.S.’s father advised B.S. to call the police.
[30] On cross-examination K.S. testified that J.S. had mentioned that she had told her mother what D.M. had done to her and that her mother had thrown D.M. out of the house but took him back a number of times. J.S. reported that her mother subsequently accused J.S. of making the story up.
[31] B.S. attended with J.S. at the Waterloo Region Police Service on July 1, 2015 where she underwent a video-taped interview by a female investigating officer. It was agreed by the Crown and the defence that J.S’s video-taped statement was taken within a reasonable time of the alleged offences and described the acts complained of. It was also agreed that the video-taped statement is admissible pursuant to section 715.1 of the Criminal Code, subject to adoption by J.S..
[32] J.S. adopted the video-taped statement and it was ordered to be admissible at trial on the basis that it would not interfere with the proper administration of justice.
[33] At the time of her statement to police, J.S.’s age was approximately 9 years and 9 ½ months.
Evidence of J.S.
[34] J.S. reported in her statement to police that she had told her mother “what had happened” with her stepfather during the previous year when she was 8 years old. This took place after J.S. had returned from a March break vacation with her father and his family. J.S. told the officer that she was afraid to tell anyone. She had also been afraid to tell D.M. to stop during the incidents because he was drunk and she was afraid that he would hurt her. She stated, that because she was afraid to tell her family about the incidents, she told her aunt K.S. about them earlier in the day and then went to hide with her brother in a closet.
[35] J.S. related to the officer that the incident happened late one night during the previous year. She told the officer that “he [that is D.M.] put his private in my mouth and his finger in my private”… “And he was drunk.” She stated that he did it “a lot of times in one night.”
[36] J.S. related that at the time of the incidents her mother and brother were each sleeping in their rooms. J.S. was in her bed playing with her stuffed animals. She heard someone “creaking on the floors” outside her bedroom so she closed her eyes and pretended she was sleeping. She stated that D.M. entered her room and “did it.” She got “freaked out” and ran to the bathroom to wash her mouth out after D.M. had left her room and had gone downstairs.
[37] J.S. stated that after she went back to bed D.M. returned and “did it again” and then went back downstairs. She returned to the bathroom to wash her mouth out again and went back to bed. She stated that “I think he did it about twice.”
[38] J.S. estimated that the first incident occurred at around 10 P.M. She related that she usually went to bed at around 8:30 P.M. but often did not fall asleep until later.
[39] J.S. stated that she did not have her light on in her room and was unable to see anything as she was pretending to be asleep with her eyes closed. J.S. was equivocal about how D.M. was clothed when he entered her bedroom. She initially reported that D.M. was wearing shorts or underwear, but then added that she didn’t know. She then stated that she thought he was naked, but later added that she did not see anything as her eyes were closed.
[40] She specified that when she said D.M. put his “private” in her mouth, she was referring to his penis. She stated that D.M. did not say anything to her during the incidents.
[41] When asked to describe how the incident began, J.S. stated that she was playing with her stuffed animals in her bed. D.M. was drunk and “walking into walls” and came into her room. He rolled her over and then put his finger “in her private”.
[42] J.S. stated that she was wearing pyjama shorts or pyjama pants and a pyjama shirt. She said he went “down” her pants and put his finger in her vagina. She related that he moved his finger around in her vagina.
[43] J.S. reported that D. M. was sitting on her bed when he put his finger in her vagina. He then stood up and put his penis in her mouth. She said she was scared because he was drunk and thought he would hurt her. J.S. was unable to say how long D.M.’s penis was in her mouth. The incident ended when he went downstairs and she went to wash her mouth out in the bathroom.
[44] When she heard him “walking into walls” she ran into her room as fast as she could. D.M. walked back into his bedroom. Afterwards he returned to her room and again put his “private” in her mouth and put his finger in her “private”. She did not tell him to stop because she thought he would hurt her if she did so.
[45] J.S. stated that she went to the bathroom after each incident to wash her mouth out because D.M. had just had his “private” in her mouth and it was “disgusting”. J.S. never spoke to D.M. about the incident and never spoke about it to anyone other than to her mother during the previous year and to her aunt K.S. earlier in the day. She was afraid to speak with anyone and felt “guilty that I did something wrong, but I really didn’t.”
Cross-Examination of J.S.
[46] On cross-examination J.S. acknowledged that she wanted out of the situation with her mother and D.M. and to live with her father but did not think that she could. She indicated that she had been told by her mother that she was supposed to live with her because that is what the court had ordered.
[47] She acknowledged that at the preliminary inquiry she had testified that her father had advised her that she could choose where she wished to live when she turned 12. She had also agreed at the preliminary inquiry that she called her grandmother to pick her up and had gone to the police station the next day because otherwise she would have had to return to live with her mother.
[48] J.S. also stated on cross-examination that she had told each of her maternal grandmother and her father B.S. about her mother’s drinking.
[49] On cross-examination J.S. stated that D.M. had pulled her pants down before putting his finger in her vagina and that he did not touch her before doing so. She was unable to say how many fingers he put in her vagina. She stated that afterwards D.M. pulled her pants up.
[50] She was unable to say how she knew it was a penis in her mouth but she did maintain that it was not possible that it was not a penis. She did not know whether D.M. had opened her mouth and was unable to say whether the penis was soft or hard.
[51] On cross-examination J.S. stated that everything happened during the second incident in the same way as the first, with no variation.
[52] J.S. acknowledged that at the preliminary inquiry she had testified that D.M. was standing on her bed, but that she had meant to say that he had been sitting on her bed. When asked if she lied at the preliminary hearing she stated “if that’s what it says there then yes.”
[53] J.S. also acknowledged that at the preliminary inquiry she testified that she was able to observe D.M. and that he was naked, whereas in her statement to the police she had initially stated that he was wearing shorts, changed that to underwear, then stated that he was naked and finally that she did not see him. On cross-examination she could not remember if her eyes were open or closed during the incidents.
[54] J.S. acknowledged that during her initial statement to the police she said that D.M. “went down” her pants and put his finger in her “private” whereas at trial she said that he pulled her pants down. She acknowledged that at the preliminary inquiry she testified that D.M. had pulled her pants down and on cross-examination acknowledged that she didn’t know if she had lied.
[55] J.S. had stated in the interview with police that D.M. had “rolled me over and did it” thereby confirming that there had been touching before he put his finger in her vagina. On cross-examination she said he did not touch her before doing so. She stated that she did not know whether she had lied to the police, at the preliminary inquiry or at trial.
[56] On cross-examination J.S. acknowledged that she never saw that it was a penis in her mouth, and that she never saw D.M. in the room and was unable to identify him walking in or out of the room because her eyes were closed.
[57] J.S. denied that she had provided different versions of what had occurred because she was lying, denied that she made things up to get out of the situation she was in, and denied making up the story so she would not have to go back to live with her mother and D.M..
Re-examination of J.S.
[58] On re-examination J.S. described what she understood to be the difference between lying and being mistaken, stating that a lie is “knowing what happened and saying something completely different” whereas being mistaken is “not remembering or messing up.”
[59] She indicated that the reason for the differences between what she had said in the statement to police, at the preliminary inquiry and at trial was that she could not remember a lot of what had happened four years previously. She stated that when her father came to pick her up at V.L.’s house on June 30 she believed that she would be living at her father’s place, prior to her attendance at the police station.
[60] J.S. agreed that her memory of what occurred was better at the times of the police interview and the preliminary inquiry than it was at trial.
Analysis
[61] The determination of whether the Crown has met its burden of proving the guilt of D.M. depends upon an assessment of the credibility and reliability of the complainant J.S., viewed in the context of the rest of the evidence from members of her family who testified at trial, namely her father B.S. and her aunts K.S. and M.H. These witnesses did not provide corroboration of J.S.’ s allegations of sexual misconduct of D.M., but gave evidence relating to the condition and circumstances of her living arrangements with her mother and D.M. and the events leading up to and surrounding her reports against D.M., first to K.S. and then to police.
[62] The Ontario Court of Appeal gave guidance to the proper approach to be taken in a case which the complainant’s evidence is uncorroborated in the case of R. v. Gostick (1999), 1999 (ON CA), 137 C.C.C. (3d) 53 (Ont. C.A.), at para. 14, as follows:
The proper approach to the burden of proof is to consider all of the evidence together and not to assess individual items of evidence in isolation: see R. v. Morin (1988), 1988 (SCC), 44 C.C.C. (3d) 193 (S.C.C.). This is particularly true where the Crown's case depends solely on the unsupported evidence of the complainants and where the principal issue is those witnesses' credibility and reliability. As Rowles J.A. emphasized in R. v. B. (R.W.) (1993), 40 W.A.C. 1 (B.C. C.A.), these issues are not to be determined in isolation. She said at p. 9:
Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility and reliability of the complainant's evidence be tested in the light of all of the other evidence presented.
[63] The problems which may bear upon an assessment of J.S.’s credibility and reliability are interconnected and fall into two categories, namely:
(a) Whether J.S. had a motive to fabricate her allegations against D.M., and if so, what effect that may have on her credibility;
(b) internal inconsistencies in J.S.’s versions of the alleged incidents as reported in her video-taped statement to police, her testimony at the preliminary inquiry and her testimony at trial, and external inconsistencies between her evidence and that of other witnesses.
(a) Position of the Defence
[64] Mr. DiClemente for the defence, pointed out that J.S. and her brother were living in deplorable conditions with their mother and D.M. They were neglected and were exposed on a daily basis to the effects of their mother’s and D.M.’s chronic alcoholism, including frequent conflict and verbal abuse and a lack of basic necessities such as food. J.S. to a large degree was placed into the role of a caregiver to her brother. She spent alternate weekends and vacations with her father and enjoyed being with him. She agreed on cross-examination that she wanted out of the situation she was in, but knew that she could not leave and had been led to believe that she had to wait until she was 12 years of age to make her own decision on where to live.
[65] The defence argues that J.S. acknowledged in cross-examination that she testified in the preliminary inquiry that she went to the police station the day after she called her grandmother to pick her up because otherwise she would have been going back to live with her mother.
[66] Mr DiClemente pointed to additional evidence which sheds light on J.S.’s motive to fabricate. J.S. had acquired knowledge about sexual abuse and harassment through instruction at school and also had first-hand knowledge of a friend having been inappropriately touched by a “creepy kid” at school who received punishment as a result. The implication is that J.S. had the knowledge and experience to understand the potential impact that the making of an allegation of sexual abuse may have.
[67] In the case of R. v. Batte (2000) 2000 (ON CA), 49 O.R. (3d) 321 (C.A.) Doherty J.A. observed at para. 120 that questions directed to show that a witness has a motive to fabricate evidence are admissible, as is evidence from other witnesses that the witness had a motive to fabricate evidence. He added that “it is difficult to think of a factor which, as a matter of common sense and life experience, would be more germane to a witness’ credibility than the existence of a motive to fabricate evidence.” Similarly, the absence of any reason to make a false allegation is a factor which may be considered in assessing a witness’ credibility.
[68] In the recent case of R. v. Sanchez 2017 ONCA 994 the Court of Appeal sounded a note of caution with respect to the proper use of the question of motive to fabricate. Nordheimer. J.A. stated, at para. 25:
It is recognized that whether a person does or does not have a motive to lie is not generally a reliable basis upon which to assess credibility. Certainly the absence of any apparent motive to lie is an unreliable marker of credibility. There are simply too many reasons why a person might not tell the truth, most of which will be unknown except to the person her/himself, to use it as a foundation to enhance the witness' credibility. Consequently, it is generally an unhelpful factor in assessing credibility: R. v. L. (L.) (2009), 96 O.R. (3d) 412, 2009 ONCA 413 (Ont. C.A.), at para. 44.
[69] I do not read the comments of Nordheimer J.A. in Sanchez as overriding or negating the observations of Doherty, J.A. in Batte, but rather as signalling that the presence or absence of a motive to fabricate must be viewed contextually and carefully in light of all of the evidence. It appears that Nordheimer J.A. was primarily concerned with the potentially misleading impact of an absence of a motive to fabricate as a foundational factor to enhance a witness’ credibility to the detriment of an accused. Doherty J.A.’s observation with respect to the relevance of evidence of an actual motive to fabricate in assessing the credibility of a witness remains valid. However, just because a witness may have a motive to fabricate evidence does not, of course, necessarily mean that she did so. The impact of a motive to fabricate on a witness’ credibility is to be considered in light of all of the evidence.
[70] The inconsistencies in J.S.’s evidence which the defence points to include the following:
(a) on cross-examination J.S. denied that she had told anyone that her mother did not believe her regarding what D.M. had done to her, whereas K.S. testified that J.S. had reported to her that her mother had expressed that to her;
(b) J.S. testified that she had told her father B.S. about her mother’s drinking in the home, whereas B.S. denied any knowledge of A.S.’s alcohol consumption or abuse prior to June 30, 2015;
(c) what happened when D.M. entered J.S.’s bedroom, namely whether he sat or stood on the bed. J.S. initially denied on cross-examination that he stood on the bed but acknowledged that she had testified twice at the preliminary inquiry that he was standing on the bed. She agreed with the suggestion that she had lied at the preliminary inquiry. Mr. DiClemente submits that after this point in her cross-examination, J.S.’s response to inconsistencies put to her in her reports and testimony became evasive;
(d) whether D.M. was clothed when he entered her room. In her video-taped statement she gave inconsistent answers, namely that he was wearing shorts, underwear, was naked, and finally that she could not see anything. She stated that she could not identify D.M. in her room, could not see him and therefore could not see whether he was naked. On cross-examination she stated “if I said naked before then it was true.” J.S. gave two different accounts regarding D.M.’s appearance in the police video and the preliminary enquiry and was unable to say which was true;
(e) whether D.M. pulled down her pants or put his hands down her pants. She testified at trial that D.M., and added a detail which was not present in her earlier statements, that he pulled her pants up. In her video-taped statement she stated that D.M. placed his hands down her pants. On cross-examination she responded to the suggestion of lying by saying “I don’t know”; and
(f) whether D.M. touched her before pulling down her pants. During the police interview she stated that D.M. rolled her over and then put his finger in her vagina. The trial she testified that he did not touch her before doing so. J.S. stated that she did not know if she had lied.
[71] In addition to the inconsistencies, the defence submits that J.S. provided little or no detail with respect to the second act complained of, namely D.M. putting his penis in her mouth. The defence says that she was unable to describe how her mouth became open and stated that she did not see a penis as she had her eyes closed. She stated that her mouth was closed, her eyes were closed and she was lying on her side, which the defence says all cast doubt on the plausibility of her story.
[72] The defence points out that when the cross-examination revealed more inconsistencies between the statements that she had given in the video-taped interview, the preliminary inquiry and at trial, she retreated to a repeated response of “I don’t know” to escape being labelled a liar.
[73] The defence argues that J.S. was inconsistent with respect to very material issues in the case and she was at best careless with the truth or at worst fabricating her evidence. The defence submits further that, allowing for the common sense approach to the assessment of credibility of children, the inconsistencies in J.S.’s evidence go directly to the substantial elements of the alleged offences and do not represent mistakes on unimportant or frivolous matters.
[74] Moreover, the defence points out that J.S.’s brief description of the second incident on the same night as having occurred in precisely the same sequence and manner as the first incident, with no variation, is implausible.
(b) Position of the Crown
[75] Ms. McLean for the Crown very fairly acknowledged that there were a number of inconsistencies between J.S.’s evidence as between her video-taped statement to police, her testimony at the preliminary inquiry and her evidence at trial, and between her evidence and that of other witnesses. However, Ms. McLean argues that some of the inconsistencies are in the nature of gradations only and many or all of them are capable of resolution by application of the principles referred to above relating to the assessment of the testimony of children.
[76] With respect to the question of a motive to fabricate, Ms. McLean submits that, on the evidence, there was a distinct absence of such a motive. By the evening of June 30, 2015, J.S. and her brother had been taken from the home that they shared with their mother and D.M. and was placed in the care of their father. At that point J.S. believed that she would be living with her father. She testified to this in chief and this was confirmed on re-examination. The evidence of J.S.’s state of mind that she believed on June 30 that she would be living with her father was also supported by the evidence of K.S. Moreover, the fact that J.S. may have derived a benefit from making a complaint about the conduct of D.M. should not, by itself, cast doubt on the veracity of the complaint.
[77] With respect to the suggestion by the defence that J.S. had acknowledged on cross-examination that she had lied, the Crown argues that J.S.’s statements in this respect must be viewed in context. The inconsistencies in her evidence were capable of multiple explanations. Four years had passed since the time of the alleged incidents and trial, and the fading of her memory over that period was exacerbated by her young age. It was evident that in giving her testimony over the course of most of a day J.S. had become fatigued. Ms. McLean submitted that the circumstances are consistent with the comments of Wakeling, J.A. of the Saskatchewan Court of Appeal in B.(G.) at para. 17 that “I find it unremarkable that the youthful witness would eventually find shelter in silence or simple agreement with counsel’s suggestions” in the face of a thorough and skilful cross-examination.
[78] Ms. McLean submitted that ultimately the court ought to prefer the evidence that J.S. gave in her video-taped statement on July 1, 2015 as constituting her best recollection of the events in question and the best, most accurate and most assistive recounting of the events, over her testimony at the preliminary inquiry and a trial. The video-taped statement was closest in time to the events and was conducted in less forbidding surroundings.
(c) Conclusion
[79] As indicated above, it is clear that there were a number of inconsistencies in J.S.’s evidence. The question of whether the inconsistencies may be capable of resolution is complicated by the fact that J.S. was approximately 8 years of age at the time of the alleged incidents, just short of 10 years of age at the time that she gave her statement to police, 11 years of age at the time of the preliminary inquiry and 12 ½ years of age at the time of trial. The case law directs the court to take a common sense approach to the assessment of the credibility of the child witness and to do so by reference to criteria appropriate to her mental development, understanding and ability to communicate.
[80] At the same time it is abundantly clear that the evidence of children remains subject to the same standard of proof as the evidence of adult witnesses, and that guarding against the injustice of a conviction of an innocent person requires a solid foundation for a finding of guilt, whether the complainant is an adult or a child.
[81] Many of the inconsistencies in J.S.’s evidence pointed to by the defence, and acknowledged by the Crown, go beyond questions of detail and the surrounding circumstances such as times and places, but rather go to the essence of the allegations against D.M. in terms of what precisely he is alleged to have done to give rise to the charges against him.
[82] Moreover, I find that J.S.’s evidence that the second incident occurred precisely in the same manner as the first raises significant difficulty for the Crown’s case.
[83] In the case of Faryna v. Chorny, 1951 (BC CA), [1952] 2 D.L.R. 354 at 356-7 (B.C.C.A.) O’Halloran J.A. recommended an approach on how best to resolve issues of credibility involving an inquiry into the consistency or harmony of two conflicting stories with the surrounding circumstances, as follows:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would recognize as reasonable in that place and in those conditions.
[84] Although these observations were made specifically with reference to the resolution of conflicting stories, I find them also helpful in assessing the credibility of any interested witness. In the present case the suggestion that two sexual assaults, in the circumstances described by J.S., could have been carried out, particularly by a drunk assailant, in precisely the same fashion as an earlier one would not be considered in “harmony with the preponderance of the probabilities which a practical and informed person would recognize as reasonable in that place and in those conditions.”
[85] I am unable to totally discount the suggestion that J.S. had a motive to fabricate her allegations against D.M. Regardless of the expression of her belief to K.S. on June 30 that she would be living with her father, the possibility that making a report of sexual abuse against D.M. to K.S. would assist in solidifying her new living arrangements by eliminating the possibility that she and her brother would be returned to her mother’s and D.M.’s home cannot be discounted. There is no evidence that J.S. understood that the making of the complaint to K.S. would necessarily result in police involvement. Therefore, the question of whether J.S. believed that she would be living with her father prior to attending at the police station takes on less importance. It is not necessary that I find that J.S. did fabricate her evidence. It is sufficient that a realistic motive to fabricate may contribute to the existence of reasonable doubt, when considered with all of the evidence, including the inconsistencies revealed in J.S.’s testimony.
[86] I also find that J.S. was evasive on cross-examination when presented with inconsistencies in her statements and retreated to the safety of maintaining that she did not know the answers to counsel’s questions.
[87] Although the Crown need not prove the case against D.M. with absolute certainty, it is accepted that the required standard is closer to certainty than it is to a balance of probabilities.
[88] Upon a consideration of all of the evidence in this case I am driven back to the observations of Molloy, J. in R. v. Nyznik set forth above. Probability and likelihood is not the standard. It is not sufficient that I find J.S. to be credible in the sense of possessing a determination to be truthful. In light of the inconsistencies in her testimony and statements, viewed in the context of all of the evidence at trial, I find that J.S.’s evidence is not reliable to the required standard. The Crown has therefore not proven it case against D.M. beyond a reasonable doubt.
[89] I therefore find D.M. not guilty of the charges in the indictment.
D.A. Broad
Released: June 1, 2018
COURT FILE NO.: CJ 8955
DATE: 2018/06/01
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
D.M.
REASONS FOR JUDGMENT
D.A.Broad
Released: June 1, 2018