CITATION: R. v. R.L., 2018 ONSC 4237
ONTARIO
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE (WITNESSES OR COMPLAINANT) IS PROHIBITED FROM PUBLICATION BY ANY METHOD PURSUANT TO AN ORDER UNDER SECTION 486.3 OF THE CRIMINAL CODE OF CANADA
BETWEEN:
HER MAJESTY THE QUEEN
– and –
R.L.
Elaine Evans, Counsel for the Crown
William Wade, Counsel for the Accused
HEARD: April 9 and June 11 and 12, 2018
Reasons for judgment
leroy, j.
Introduction
1RA is the complainant. RL is the accused. JA is the complainant’s mother and sister of the accused.
2RL is charged with sexual offences involving his nephew RA during the years 1985 to 1990. RL’s age at the time was between 31 – 35 years. The complainant’s age was between 4 and 8 years. RA is now 35.
3The witnesses included RA, JA, a boarder, DH and the accused. The direct evidence of the offences charged derives exclusively from RA. RL denied the allegations. RL is intellectually disabled. The issue is the reliability of RA’s memory.
The evidentiary dialectic
Background
4The family residence was rurally situated near Green Valley. The family constellation included JA, RA and his younger sister. The mother and father were separated. The father was in the complainant’s life sporadically. For a period, the mother provided room and board for a young man, DH. He occupied a bedroom in the basement or main floor.
5The family was transient and resided in many residences through RA’s childhood. He entered CAS foster care when he was 8. He recalled eight schools. He recalled residence in Calgary and return to eastern Ontario to live with his maternal grandmother when he was approximately 3 years. They moved to the house near Green Valley when the complainant was between 4 and 6 years, closer to 4. He recalled having begun school by then.
6Initially, the complainant and his sister shared a bedroom on the second floor next to their mother’s room.
7The accused was a regular visitor to the home. RA recalled that by the time he reached the age of five or six years, the accused joined the residence and slept on the downstairs living room couch.
8JA changed the sleeping arrangements. The daughter, a baby moved from the shared arrangement with the complainant into JA’s room. RL moved from the couch to the complainant’s room, separate beds.
9RA recalls he was a hyperactive child and the mother relied on the accused to distract the complainant for respite. RL and RA recall RL taking the complainant for walks, tractor rides and fishing.
10The boarder observed that when the accused was perturbed by the complainant he would smack the complainant’s bottom. He observed that the accused suffers from an intellectual disability.
11The allegations are that over a period of approximately two to three months during the summer of the complainant’s sixth or seventh year, coincident with the time they shared the bedroom, RL engaged in variable sexual activity with the complainant that included:
RL performing fellatio on RA – RA was wearing his NHL pajamas and was awakened to a warm sensation between his legs – RA’s thinking at the time was why, it felt wrong and he did not like it – he said RL moved up the bed and touched RA’s testicles and began to talk about how this was something he would not know until older but because RA behaved so grown up RL would give RA the privilege of experiencing how men behave. RA observed RL masturbate. RA had not been exposed to sex education at the time. He did not know if RL ejaculated. The incident ended when RA fell asleep.
RL said disclosure would be the end of the tractor rides, fishing and walks.
This repeated over two or three months upwards of five times. All incidents occurred in their bedroom.
Once RL tried to digitally penetrate RA’s anal sphincter. That was painful. There were no attempts at penile anal penetration although there were times when RL rubbed his penis against RA’s hip area while RL masturbated.
On different occasions, RL placed RA’s hand on RL’s penis.
RA observed RL ejaculate on RA’s encyclopedia and favourite Teddy Bear.
12The complainant confirmed that except for the attempted digital anal penetration these activities were not physically painful.
13The complainant recalls little conversation during these incidents. RA did not disclose to his mother, but all the while wondered why this was happening. He recalls that RL characterized the activity as didactic in the context of handing down wisdom across generations accompanied with the warning that should the complainant disclose, their fun activities (walks, tractor and fishing) would end.
14The complainant recalled the accused’s distinctive body odour which he says remains a trigger. He confirmed that no one entered the bedroom during these incidents. The complainant denies recall of an ending. RL met a girlfriend and moved in with her.
15RA said he never liked going to bed but it was unrelated to the assaults. He said sadness and confusion were prominent in his life.
16RA recalls they moved from the Green Valley house when he was six or seven. JA said they resided in the Green Valley property for 18 months, vacating when the well dried.
17JA with daughter and RA moved into a house in Cornwall. RL visited time to time, even slept over, but the sexual engagement was never re-enacted.
18The complainant said he disclosed to his mother when he was 8/9, approximately three years subsequent to the events alleged, after school in response to her direct enquiry. He provided a detailed description of the conversation. He was confused and angered by her response – she said she knew and, if she knew or suspected, why did she not protect him? Further, she did not take the matter to the authorities. JA’s impression is she was concerned how if this disclosure was reported her standing in the community would be compromised.
19JA contacted child protection when she was unable to manage RA’s behaviours. RA was taken to a place of safety by the CAS and placed in extended society care. RA’s anger towards his mother remains unresolved. He said his mother attributed the complainant’s anger and defiance to the biological father’s genetics. He said he and his mother had a negative relationship since his birth. He alluded to violent discipline involving forced takedowns and extended pinning that ended when the complainant grew too strong for her.
20The complainant compiled a criminal record over the ensuing years comprised of an assault in 2007, breach of probation in 2008, theft under and carrying a concealed weapon in 2014 and obstruct police officer in the context of providing falsified identification in 2017.
21The complainant’s prescriptions include Concerta, methadone, clonidine, clonazepam, quetiapine and marijuana and he acknowledged consumption prior to court attendance. He asserted benign effect on his testimony. This was confirmed by a toxicologist from CFS who wrote that “Individuals taking medications chronically under the direction of a physician would be expected to develop a tolerance to adverse side effects related to the medication.”
22RA asserted that his purpose in disclosing in November 2015 when he was 33/34 was to show RL what he did to RA. There is no motive for financial gain.
JA
23JA’s recall about peripheral matters such as whether DH’s room was in the basement or at the back on the main floor or where RA and RL slept were uncertain and slightly different than RA’s recall. She denied recall of activities shared by RA and RL. She did not recall time when RL was tasked to care for RA alone.
24JA’s recall about pivotal matters such as the etiology of RA’s route to CAS care and when he disclosed these allegations raise issues as regards the reliability of RA’s memory.
25JA confirmed it was difficult to get RL to abide acceptable hygiene practices and he had limited capacity for self-care. RL is illiterate with the intellect of a twelve year old. RL was never placed in the role of RA’s sole caregiver.
26JA did not notice anything unusual as regards RA’s behaviour during the time RL lived in her home. RA began acting out at about age 5. RA visited his father at the time.
27JA observed that after they moved out of the farm house where water was in short supply – they vacated when the well dried – and moved into the city RA began taking showers on a daily basis. RA’s violence escalated in the city.
28JA denied the disclosure conversation when RA was 8/9. She denied having ever asked RA whether anything happened between RA and RL. She said RA disclosed when he was 16 during a conversation in St. Catharines JA thought related to RA’s father. She asked RA if there was anything he wanted to tell her, thinking his response would relate to the father’s abuse.
29RA disclosed his allegations against RL. He appeared very angry and challenged her about how she let that go on to which she made no response.
30JA recounted a conversation she had with RL three or so years ago in an elevator. She told him she knew what he had done and how he had ruined RA’s life. RL did not ask for particulars. RL responded by enquiring about what he could do. He offered to talk with RA – RL apologized. He may have begun crying. They did not identify the substance of the wrong-doing. – RL did not say what he was sorry for.
Similar Act/Other Discreditable Conduct
31The Crown applied for an order permitting the admission of similar act/other discreditable conduct evidence into the trial. The defence consented to the application at the opening of trial.
32The similar act evidence involves two sources: DH, the boarder residing in the same home at the time and J.L., a child entrusted to the day care of a former spouse of RL. The facts are uncontested. The particulars of the JL episode were adduced by agreed statement of fact.
33DH was resident in this household through his nineteenth year. He observed it was common for RL to fondle his penis under his overalls. DH could not recall whether that behaviour was ever enacted in the presence of the complainant or mother.
34He witnessed RL swat the nephew’s buttocks out of frustration in response to the complainant’s aggressive and defiant behaviour.
35The agreed statement of facts in relation to J.L. are as follows:
Through the summer of 1990, J.L. was eight years of age and Mr. RL’s spouse provided day care for J.L. and her sister N.L. (age 5). While J.L. and N.L. were in their bedroom, RL approached and suggested a game wherein RL was to take J.L. into the bedroom closet and close the door, which they did. RL removed J.L.’s pants and underwear, bent to his knees, kissed her vaginal area, stood and attempted to kiss her breasts. J.L. opened the door and vacated the closet. RL followed, laying her on the bed and kissed her breasts, then her vaginal area, unzipped his pants and simulated intercourse with her. J.L. escaped and RL instructed her to not tell anyone or he would no longer be her friend. J.L. observed RL take N.L. into the closet. J.L. reported to the baby sitter who opened the closet door. J.L. said that RL exposed his penis to her and slapped her buttocks.
RL was convicted of sexual assault and exposure to a child under age fourteen after a trial in 1992. He was sentenced to 90 days on each count concurrent and three years of probation.
36JA confirmed learning of the JL incident when they were living on St. Felix in Cornwall where she lived for six or seven years. She did not discuss the JL matter with RA.
RL
37RL is sixty-two and receives ODSP benefits. He is illiterate; his last grade in school was grade 2 special education. He recalled moving in with JA for four or five months without recall of the year. He is unclear on the household configuration, but recalls sharing the bedroom with RA for a portion of the time he stayed there. He recalls that RA was age 5 or 6 at the time.
38RL recalled fishing and rides with RA on the tractor. RL showed RA how to operate the tractor, how to fish and how life should be. He denied any sex education as that was the mother’s role. He was never tasked in a babysitting role with RA.
39RL acknowledged that his sister admonished him about bathing. He recalled the overalls and depending on the weather a shirt was optional. He recalled DH’s prom.
40RL denied fellating RA. He denied recall of the teddy bear.
41RL acknowledged his criminal record.
42In cross-examination, Crown counsel challenged RL over the position he took at trial wherein he denied fellatio with RA with the position he took at arrest with Detective Roy wherein RL said he did not remember things in the bedroom, but that if he did, he would tell if he recalled anything. The point of the exchange was that if he did not remember, how could he deny that he did it at trial. JL held onto the premise that he would recall sexual assault of his nephew, that as he did not recall he did not do it.
43When challenged on cross-examination about the offence against JL, he agreed that was his mistake and said he learned his lesson from that experience. The JL incident postdated the time RL spent with RA.
44RL said he did not know what JA alluded to when she said he ruined RA’s life. He felt badly because she was so upset and he simply offered his assistance.
Governing Principles
45I am instructed by the principles set out in Appendix “A” to these reasons. They form part of these reasons by reference.
Crown position re: Other Discreditable Conduct
Relevant issues
46The Crown submits that the issues this evidence is directed at are:
Motive: the accused’s actions were motivated by an attraction to children to whom he stood in a position of trust.
Animus (in the sense of disposition/attitude): the accused objectified children for sexual gratification – he viewed his nephew not as nephew or family member but as the target of sexual overtures – just as J.L. was.
Mens rea and actus reus: the similar act evidence renders it more likely that the offences alleged in the case at bar occurred as described and supports the intentionally sexual nature of the touching.
Modus operandi: the similar fact evidence demonstrates a pattern of behaviour by the accused towards children of a certain age entrusted to his care.
Principles Applied
Issues other than General Disposition
47The evidence of the JL assault could be relevant to motive, animus, the actus reus and modus operandi. That RL objectified JL for his sexual gratification, and exploited his status as the adult in the room are not inconsistent and on cursory review could be sufficiently connected to defy concern for the coincidence that two complainants articulate sexual assaults.
Temporal Connection
48RA’s time period is between 1985 and 1990. DH’s observations were during the same time frame. The assault on JL was in summer 1990. An argument exists for temporal connection.
Similarity of Detail
49It is an error to rely on generic similarities between the similar act evidence and the evidence of the complainant, without more to draw the requisite connectivity. R. v. Blake (2003) 2003 CanLII 13682 (ON CA), 181 C.C.C. (3d) 169 (ONCA). The risk in relying on generic similarities to support the inference that the actus reus occurred is two-fold: the first is that the initial inference arising from the prior conduct becomes so general that it approaches bad personhood; the second is that because of the non-specific character, generic similarities may mask underlying dissimilarities that could be important.
50Here the similarities include:
i. The accused engaged in sexual interaction with a child under the age of 9 years subsequent to the events at bar - generic;
ii. The sexual abuse alleged included oral sex on JL and RA, as well as fondling and rubbing with the penis, on RA’s hip and JL in the area of her genitals – generic;
iii. The children said they were instructed to not tell – generic;
iv. The accused was the adult in the room – generic;
v. The accused had slapped the complaints’ buttocks – generic.
51Identified dissimilarities include:
i. RA states that RL masturbated in RA’s presence and asked RA to stimulate his penis to achieve ejaculation – JL did not depict masturbation;
ii. RA states that RL ejaculated on his clothing and toys – JL did not observe ejaculation;
iii. There is the gender difference;
iv. There is a significant relationship difference. There is no evidence of a history between RL and JL. JL was unrelated to RL. RA and RL are related and had a history. If RL committed the offences charged the relationship groomed ongoing gratification.
Look at the surrounding circumstances of the acts and similarity of those circumstances.
52In the case at bar, the assertion is that RL was thrust into the role of substitute father and, over time, progressively exploited the opportunity for sexual gratification. In the JL case, the assault was spontaneous.
53The number of occurrences – an increase in occurrences = a decrease in coincidence. This consideration does not reduce the concern for coincidence – the incident with JL was a one-time event subsequent in time to the allegations before the Court.
54Look for any distinctive features unifying the incidents – hallmark; calling card – not applicable.
55Intervening events – not applicable.
56What is the strength of the evidence of similar acts? Consider:
i. The extent to which it supports the inferences sought to be drawn;
ii. Whether the evidence relates to a live issue.
Extent to which it supports the inferences sought to be drawn.
57Does the fact that RL was known to indiscriminately masturbate to his own stimulation or that he slapped the complainant on the buttocks make it more likely that he committed the offences ascribed to him in the case at bar?
58The inference is tenuous at best. Self-flagellation does not connote sexual aggression or exploitation. Buttock slapping is consistent with discipline and casual innocent affection. It is consistent with reduced impulse controls.
59Does the fact and circumstances of the sexual assault on JL make it more likely that RL committed the offences ascribed to him in the case at bar in the context of animus/motive and actus reus?
60The fact of the sexual assault on JL, an 8-year-old girl visiting his home under an umbrella of contractual protection, using a segregation strategy that escalated rapidly into all but vaginal penetration indicates a risk-taker who objectified a little girls with minimal impulse control.
61The MO in the case at bar is markedly different.
62I am not convinced of the probative value of the discreditable conduct. The evidence was admitted on consent; however, my sense is that it is questionable whether it makes the premise more likely. The similarities are generic and if this was a jury trial the evidence would not be admitted because the concern for moral prejudice (bad personhood inference) outweighs the probative value on the issues sought to be influenced. To give this evidence more than passing comment weight would be an error.
Crown Position on the evidence
63Individuals will remember events important to them such as trauma and happiness. They will not recall colour, dates and time or who passed the salt at Thanksgiving last year.
64JJRD offers guidance for navigating the W(D) analysis. In assessing credibility, the Court needs to piece together the bigger tapestry. We need to assess why RA did not disclose to the CAS.
65The Court can dismiss RL’s testimony outright. His testimony was unreliable, incredible and illogical internally and externally. RL portrayed himself as more deficient than he actually is. He peppered his testimony with responses as “I don’t remember” or I’m not sure” in response to negative evidence, but was very engaged when discussion turned to friendly evidence. He cited MVA head trauma causing memory loss without corroboration. This was fake loss and ought to affect his credibility as a witness.
66He has a better memory than depicted – he recalls fishing, DH, tractor rides, his sister admonishing him about his hygiene, the overalls and time frames. He said he did not remember sexual relations with RA on arrest. Why didn’t he deny outright?
67RL has scant regard for the truth. His depiction of the confrontation with JA did not make sense. At first, he said he began to cry because he thought JA was upset at him for doing good things with RA. Then, when challenged on the illogic of that answer, he flip-flopped and said he did not know what JA was talking about. Then he denied crying. Then he said he has not had the best life. Then he said JA is jealous of him because he had more opportunities.
68His answers in relation to the sexual assault on JL illustrates a lack of caring. He said he learned his lesson because he was caught. He did not mention that it was morally wrong. He seemed to suggest that his experience with JL preceded his time in JA’s home, that he had learned his lesson so he would not have acted the way RA portrays.
69On the other hand, RA was credible and reliable. The Crown cited the following as hallmarks of credibility: RA was able to explain his complicated family tree, describe the farm property, DH and his circumstances, the household sleeping arrangements and how as the abuse continued RA’s behaviour deteriorated into hyperactivity and violence.
70That JA could not recall RL taking RA fishing, or that DH had different recall of the locate of his bedroom on the main floor as opposed to RA recalling to be in basement shows they did not collude.
71RA’s narrative has the ring of truth. He described just how a child would recall and react. The first time it happened when he was awakened, his recall is tactile sensation of the warmth between his legs. He recalled his NHL hockey pajamas. He said he had a wrong confused feeling. His recall of RL sliding up and placing his hands on RA’s testicles is credible detail. His recall of RL’s characterization of the enactment as educational eerily resonated with RL’s stated role with RA vis-à-vis the tractor operation and fishing.
72RA did not over sell. Although RL had his penis out, he denied that RL asked RA to touch it. The only time RA choked up during his testimony was when he described how RL ejaculated on the Teddy Bear. He did not enjoy going to bed over anxiety for a reprise during the night. That is an age appropriate response. RA’s visceral response to RL’s body odour resonates with what everyone felt.
73RA’s explanation for not disclosing resonates. RA did not want to lose the little adult attention he had in the house.
74The discrepancy between JA(mom) and RA(complainant) over when it was that RA disclosed the abuse to JA cannot be a key hinge in the case.
75The pursuit of criminal injury compensation is irrelevant. RA’s explanation for disclosing, namely that he wanted RL to know he can’t do this anymore and RA’s need for closure is a reasonable explanation for coming forward.
76The other discreditable conduct with JL can inform RL’s motive – attraction to children, animus to children – children as sexual objects not nephew.
Defence Position
77RA’s time frame is different than the others – he recalled the stay in Green Valley as two or three years – his mother recalls 1.5 years.
78JA did not discover ejaculate on the Teddy Bear or book.
79Everyone noticed RL’s hygiene deficits. RL shared a room with RA. That would underscore the trigger.
80RA and JA are apart on the disclosure age – 8 or 16. RA agreed that JA called the CAS when RA was 8 and RA went into care. RA acknowledged he was an angry violent child.
81The complaint is money driven.
82That RL offered to talk with RA during the confrontation with JA is consistent with RL’s intellect. RL did not admit any sexual acts.
83This is a clear W(D.) case. RL has obvious intellectual deficits. RA is angry about his life experience. There are two very different versions of events. RL tried to keep RA active – fishing and tractor rides. He said if this happened he would remember. RL answered the questions asked of him to the best of his ability. His testimony is somewhat reliable.
84The court can’t find guilt for probably guilty.
Principles applied/Discussion
85As noted the issue is the reliability of RA’s memory in the face of RL’s denial.
86I agree with the Crown submission that RA’s narrative brought with it a ring of truth and I accept what he said happened is his memory. I accept RA’s sincerity.
87That the narrative brings a ring of truth does not of itself carry the day. His memory is equally consistent with false memory compiled over 20 years as it is with a reliable recounting. If anything, RA’s recall is too detailed to accept as factual memory.
88That no one discovered RL does not help in the analysis. RL had opportunity. Sexual assaults are inherently private.
89In JJRD, the trial judge was able to reject the accused’s testimony by stacking it against the complainant’s conflicting credible evidence – unimpeached testimony and the diary.
90JA’s testimony raises issues with the reliability of RA’s memories.
91RA correlated the deterioration in his behaviours with the sexual assaults. He also said his relationship with his mother was conflicted from the beginning. JA concurred. She thought he was organically angry and defiant. RA correlated the anger he felt by what he recalled as his mother’s betrayal when he disclosed the assault to her at age 8/9 as the prompt for CAS intervention coincident with his ability to overpower JA. JA recalls she could not manage his behaviours but denied the disclosure at that time.
92Individuals remember particulars that stand out in their minds. RA recalls the details of disclosure to his mother at age 8/9 in response to her direct inquiry. The assumption would be that JA learned of the incident with JL and was concerned for RA and in that context the memory fits surrounding circumstances.
93The issue is not when RA disclosed, rather the issue is his memory and its reliability. I am doubtful of the reliability of JA’s disclosure memory when he was eight.
94JA comported herself neutrally when she testified. Her evidence was credible and reliable.
95Learning your son has been sexually assaulted by your brother would be haunting. JA revealed detailed memory of the disclosure in discussion with RA when he was 16. JA explained how just 3 years ago she confronted RL in an elevator. JA confirmed that RL visited the home on St. Felix for 6 years. Given JA’s response on learning of the allegations when RA was 16 RL would not have been welcome in the home.
96When RA entered CAS care the parent-child relationship was conflicted. RA experienced loneliness, confusion and anger. The betrayal of abandonment to foster care impossible to rationalize. JA recalled an organic lifelong escalation that overtook them when RA became too violent and strong for her to manage. JA gave her child to foster care. The implications for the failed family relationships had to be devastating to the little boy. JA would not have forgotten a disclosure when RA was eight. JA knew about the assault on JL. She was not asked why she did not take action to redress the damage caused by the sexual assault – she was not told.
97RA is 35. His life experience has been harsh and confusing. His relationship with his parents is troubled. He spent a significant portion of his formative years in foster care. RA is angry with RL. He is angry with JA.
98In R. v. D.P. 2017 ONCA 263, the trial judge assessed why the complainant lied to the CAS and doctor and concluded, based on complainant’s testimony, about how he was coached by the offender and feared retribution having regard to the admitted physical abuse, those were valid explanations. I did not hear an explanation as to why RA and JA did not disclose this sexual abuse to the CAS when RA was taken to a place of safety. Little turns on the reason except the concern about whether the discussion with JA is false memory.
99If JA had been alerted to the allegations before the court in the case at bar she would have acted differently. That she did not suggests with some strength that RA’s memory of the age 8/9 disclosure is a false one.
100Crown counsel emphasized that relevant corroboration is the key. There is ample generic corroboration.
101That RL resided in the same home in Green Valley with JA, RA and RA’s sister and RL shared the bedroom with RA for a brief interlude when RA was 4 – 6 years of age is not contentious. There is no issue that RL was and is intellectually disabled. He is low functioning. Their activities included the tractor rides, fishing and walking. None of that helps with assessment of the reliability of RA’s narrative.
102Ms. Evans emphasized RA’s tactile and disturbed emotion while he was being assaulted and how they resonate with how we might expect a four or five year old sexual neophyte to experience such victimization. These would be memorable. I agree. It is detail but not corroboration. RA exhibited the same degree of detail in his recall of the disclosure discussion.
103By testifying, RL lugged the W(D) and JJRD analysis into credibility assessment. RL proved to be consistent with how the other witnesses described him. The Crown argued that the Court can reject RL’s testimony outright.
104The main points of contention argued by the crown were that:
While being arrested, RL said he did not remember sexually assaulting RA and at trial, said he did not sexually assault;
The conversation between JA and RL from three years ago was incredible;
That RL is not as disabled as he portrayed – he had memory of the tractor, fishing, the shared bedroom, RA’s age at the time;
RL said he tried to teach RA about things and that was eerily consonant with RA’s recall about the didactic aspect to the sexual engagement;
RL referenced brain injury in a motor vehicle accident that impaired his memory; and
RL’s responses to the JL conviction were incongruous.
While being arrested, RL said he did not remember sexually assaulting RA and at trial said he did not sexually assault
105The Crown argued that the response one would get to an allegation of this sort by a police officer would be flat out denial. This should therefore be factored into the denial at trial. Secondly, a denial of a memory is different from a denial of the offence. They are inconsistent statements.
106There is no inviolable rule as to how an innocent accused person responds to a charge. Guilty individuals make flat out denials. I am not convinced that anything short of flat out denial by an innocent person is indicative of guilty mind. RL explained his response as he did not remember sexually assaulting RA. If he did, he would remember – that he did not remember means he did not commit the act.
107Whether flat out denial or the more circuitous route, he denies the charges. RL does not understand the nuance of the distinction.
The conversation between JA and RL from three years ago was incredible
108Cross-purpose conversations are regular occurrences when assumptions are unstated. It may be the case that JA and RL were talking about the same subject matter. They did not articulate the subject matter inter-se. Assumptions drive the inferences to be made. JA and RL testified to materially different assumptions. JA assumed they were talking about the consequences of childhood sexual assault. RL denied the same or similar assumption. The Crown argument assumes the sexual assault allegations are true and attach the same assumption to RL. RL is presumed innocent. The premise of the argument is flawed. The dynamics of their lifelong relationship were barely touched during the trial. I am unwilling to draw inferential findings from the interaction.
109I accept RL encounters confusing situations daily. That he thought JA was upbraiding him for good activities with RA seems illogical until one considers how illogical the world is to RL. That he concluded he did not know what she was talking about is not far-fetched.
That RL is not as disabled as he let on – he had memory of the tractor, fishing, the shared bedroom, RA’s age at the time
110I am unwilling to discount the reliability of RL’s memory any more than anyone else’s. I expect he remembers events important to him and has little memory of events unimportant to him. Perception yes; memory no. If I assume RL is guilty of the charges then his memory denial has to be untrue. That would be important to him. As to what other incidents at the time were important, we can’t know – what may be seen as peripheral to others may be centrally important to others – He and every one of the witnesses recalled the shared bedroom, the tractor, his hygiene, DH’s residency. JA did not recall the fishing, the overalls and laneway tractor rides but RA and RL did.
111RL is an easy target. He is low functioning. His hygienic practices were notorious. That his particular body smell is a trigger for RA is consistent with both sexual assault and the experience of sharing a bedroom, fishing in close proximity, riding on the tractor or sitting at the same dinner table.
RL said he tried to teach RA about things, how to operate a tractor and hook fish bait and that was eerily consonant with RA’s recall about the didactic aspect to the sexual engagement.
112I took from RL’s testimony that he doesn’t fully recognize how others perceive him. He said JA is jealous of his better life and opportunity. It is his perspective shared by no one else. That RL explained his juxtaposition to RA at the time as life skill didactic is a perspective shared by no one else. RL said with clarity that the domain of sex education rested with JA and he did not have any role.
113That said, the overlay can’t be coincidental or ignored. It could be RL self-identifying as educator portrayed as such during recreational times and in the bedroom. It could be RL self-identifying as educator during recreational times with RA and RA transposed the educator/student juxtaposition to the bedroom scene.
RL referenced brain injury in a motor vehicle accident that impaired his memory
114The Crown submission is this was a lie to explain RL’s memory deficiencies and should affect the assessment of RL’s sincerity/credibility. The evidence adduced during the trial sheds no light on the veracity of the report of the accident. If it is true, little changes. If it isn’t, the Crown submission is valid.
RL’s responses to the JL conviction were incongruous
115RL suggested that as he learned his lesson from the mistake with JL, he would not do the same with RA. That answer did not make sense given that the offences before the Court pre-date the JL matter. As it had not happened, he could not apply anything learned from the JL incident to the circumstances with RA.
116That said, not having the two interactions fixed in time is consistent with innocence. If RL did sexually engage with RA he would remember the sequence. If he did not then time and sequence in peripheral and his mistake does not weigh against him.
Conclusion
117For the reasons articulated earlier, I accept RA’s sincerity. He believes what he said is true. He believes RL engaged with him sexually. He believes he told his mother when he was eight near the time he was taken from the home. He is angry with her for failing to out RL and arrange mitigation at the time. I am less convinced about the reliability of his memories. For the reasons stated earlier I don’t accept that he told his mother when he said he did. His life experience has been unfair on many levels. RA seeks impossible closure. He was victimized by his parents. I agree with Ms. Evans’ observation about the loneliness, sadness and neglect RA experienced in his formative years. That he harbours unresolved anger and is treated for mental health issues is not surprising. RL may have sexually assaulted RA. The experience of sexual assault could only exacerbate the dysfunction.
118For the reasons stated, these circumstances do not make out a JJRD analysis. JA’s testimony raised reliability issues about RA’s memory.
119The issues with RL’s perception and communication are organically driven. As an intellectually challenged accused person he can expect some degree of indulgence when his perceptions and communication proficiencies are deficient.
120The burden of proof is always on the Crown and never shifts to the accused. If I believe defence evidence on an element of the offence or if I am not sure about that evidence, I must acquit. I am not confident about the reliability of RA’s memories. RL denies the assault alleged. For the reasons stated, I do not dismiss his testimony. The whole of the evidence RA, JA and RL leaves me with a reasonable doubt about whether RL committed the offences charged. As defence suggested – it is not enough to find RL is probably guilty.
121The charges are dismissed.
The Honourable Mr. Justice Rick Leroy
Released: July 23, 2018
Appendix “A”
Base Principles
1The basic premise which is fundamental to all criminal trials is that Mr. RL is presumed innocent, unless and until Crown counsel proves his guilt beyond reasonable doubt. This presumption stays with him throughout the trial. The burden of proof is always on the Crown regardless of what evidence defence provides, fails to provide or chooses not to provide. Mr. RL does not have to prove anything. I have to determine whether all the evidence has proved the offence of sexual assault beyond a reasonable doubt.
2The standard of proof beyond a reasonable doubt is inextricably intertwined with the presumption of innocence. This is a case of having to assess the credibility of the witnesses and involves application of the presumption of innocence. The test is not which side I believe but whether, on the totality of the evidence viewed as a whole, the Crown has proven each essential element of the offense beyond a reasonable doubt.
3In this case, both sides can’t be true, but my task is not to solve the question as to which side’s version is more reliably truthful.
4The message from the SCC in R. v. W.(D.) is first and foremost that in cases where the defence calls evidence, I am not allowed to approach the determination of guilt or innocence as a credibility contest. The error to avoid is to proceed directly from findings of credibility to finding of guilt beyond reasonable doubt. There is a distinction between findings of credibility and proof beyond reasonable doubt. The burden of proof is always on the Crown and never shifts to the accused. If I believe defence evidence on an element of the offence or if I am not sure about that evidence, I must acquit. Even if defence evidence fails to raise a reasonable doubt about an element, I still have to determine whether Crown evidence, in the context of all the evidence, has proved each element beyond a reasonable doubt.
5The decisive question is whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. The focus remains on the principle of reasonable doubt.
6An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond reasonable doubt of the truth of the conflicting credible evidence, (unimpeached testimony and diary) is as much an explanation for the rejection of the 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 – R. v. J.J.R.D, 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749 (ONCA) – para 53.
7A reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. A reasonable doubt is a doubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. While more is required than proof that the accused is probably guilty, a reasonable doubt does not involve proof to an absolute certainty, R. v. Lifchus (1997), 1997 CanLII 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.). Proof beyond reasonable doubt falls closer to sound deduction than to proof on a balance of probabilities.
Approach to credibility and reliability of testimony
8There are at least four potential sources of error when a witness describes events she claims to have observed or experienced: perception; memory; communication; and sincerity. Credibility and reliability are different. Credibility has to do with the witness’ veracity. Is the witness worthy of belief? Are we confident the witness was trying to be truthful and not deceiving us? Reliability has to do with the accuracy of the witness’ testimony. Accuracy engages consideration of the witness’ ability to accurately observe, recall and recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence. Credibility is not a proxy for reliability; a credible witness may give unreliable evidence; R. v. C.(H.), [2009] ONCA 56 – per Watt J.A.
9In R. v. Gostick (1999) 137 C.C.C. (3d) at 53 (ONCA), Finlayson, J.A. concluded that of the two factors, the reliability of evidence is by far the more significant. 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. Where, as here, the case of 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 the other evidence presented.
10The assessment of evidence includes consideration of benchmarks of reliability and credibility such as whether a witness has reason to give evidence more favourable to one side than to the other, the inherent reasonableness of testimony, internal consistency, uncertainties in respect to details, plausibility and myriad considerations involving a witness’ objectivity, ability to observe, remember and communicate and consistency with other evidence and availability of other sources of information.
11I can believe some, none or all of a witness’ testimony.
12Where inconsistencies involve material matters about which an honest witness is unlikely to be mistaken, it can demonstrate carelessness with the truth and raise the issue of whether or not the trier can rely on that person’s testimony. Inconsistencies on minor matters of detail are expected and generally do not reflect badly on a memory and sincerity assessment.
13RL testified. His evidence is assessed in the same way as the testimony of any witness. RL has a criminal record. The utility of a criminal record is limited to assisting in my determination of how much or little to believe and rely on his testimony in deciding this case. His record is only one of the many factors for consideration. It cannot be used to paint RL as the sort of person who would commit a sexual assault against the complainant.
14An adverse finding as to the credibility of the accused or evidence offered on his behalf does not lead inescapably to a finding of guilt nor does it in any way relieve the Crown of the burden of proving the case against the accused beyond a reasonable doubt.
15Both counsel, in submissions, alluded to the issue of RA’s motive or absence of motive to fabricate these allegations. Mr. Wade argued that the one possible undeclared motive to fabricate could be the complainant’s pursuit or injury compensation.
16The absence of any reason to make a false allegation is a factor which triers of fact, using their common sense, will and should consider in assessing a witness' credibility. What must be avoided is any suggestion that the accused has an onus to demonstrate that a complainant had a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive or, finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth – R. v. Batte 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321,[2000] O.J. No. 2184.
17As Rowles J.A. stated in R. v. B. (R.W.), [1993] B.C.J. No. 758, 24 B.C.A.C. 1 (C.A.), at para. 28: "[i]t does not logically follow that because there is no apparent reason for a witness to lie, the witness must be telling the truth". Put another way, the fact that a complainant has no apparent motive to fabricate does not mean that the complainant has no motive to fabricate.
18The significance of the complainant’s failure to make a timely complaint cannot be the subject of presumptive inference based on now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse. There is no inviolable rule how people who are the victims of trauma like sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt or a lack of understanding and knowledge. In assessing the credibility of the complainant, the time of the complaint is simply one circumstance to consider in the factual mosaic of the case. A delay in disclosure, standing alone will never give rise to an adverse inference against the credibility of the complainant – R. v. D.D. (2000), 2000 SCC 43, 148 C.C.C.(3d) 41 (S.C.C.) at 66-67.
Evidence of children/adults testifying to events that they recall as children
19Since children may experience the world differently from adults, it is unsurprising that details important to adults, like time and place, may be missing from their recollection. Wilson J. recognized this in R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at pp. 48, when, in referring to submissions regarding the court of appeal judge's treatment of the evidence of the complainant, she said that
... it seems to me that he was simply suggesting 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. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern 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. I think his concern is well founded and his comments entirely appropriate. 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. 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 that 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 the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children.
As Wilson J. emphasized in B. (G.), 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. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child. What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.
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 – R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R.122.
Other discreditable conduct
Identification of the required degree of similarity – connectedness/nexus
20The degree of similarity required depends on the issues in the case, the purpose for which the evidence is sought to be introduced and the other evidence. Where the issue is identification, evidence of propensity on that issue is not admissible unless the propensity is highly distinctive or unique as to constitute a signature.
21The issue in the case at bar is the actus reus of the offences. Does the evidence point to an offence? The point is not that the degree of similarity has to be higher or lower than an identification case. The premises of inductive arguments do not prove their conclusions; they support them. Support is a matter of degree that can vary from a little to a whole lot. The point is that different issues involve different drivers of cogency in relation to the desired inferences.
22The analysis requires an assessment of the similarities and dissimilarities between the subject matter of the charges before the Court and the similar act sought to be admitted?
i. Look for a temporal connection – proximity in time of the similar acts
ii. Extent to which the other acts are similar in detail to the charged conduct
iii. Look at the surrounding circumstances of the acts and similarity of those circumstances
iv. The number of occurrences – an increase in occurrences = a decrease in coincidence
v. Look for any distinctive features unifying the incidents – hallmark; calling card.
vi. Intervening events
23The list is not exhaustive.
24The strength of the evidence of similar acts is a factor in assessing probative value to an issue. In some situations, this may involve an assessment of the factual veracity of the allegations of similar acts of the accused. In the case at bar, the “similar acts” are factually acknowledged. This step in the analysis requires consideration of:
i. The extent to which it supports the inferences sought to be drawn
ii. Whether the evidence relates to a live issue
iii. Whether there is evidence of collusion.
25The second step in the Handy analysis is to assess the prejudicial effect of the evidence.
Prejudicial Effect
26Prejudicial effect can be reasoning prejudice and moral prejudice. Prejudice occurs when the evidence operates unfairly to the accused.
27Reasoning prejudice involves the trier becoming distracted or confused by the number of external incidents and convicting based on the cumulate effect of numerous incidents. Will the enquiry into the similar acts make it overly difficult for the defence to respond to the evidence?
28Moral prejudice is where the jury convicts the accused because he is a bad man and deserves to be punished. Are the similar acts proposed for reception particularly repugnant or overly inflammatory? The concern for moral prejudice is not a significant factor in the judge alone trial.
29The third step in the Handy analysis is to balance the probative value and potential effect.
CITATION: R. v. RL, 2018 ONSC 4237
COURT FILE NO.: CR-17-25
DATE: 2018/07/23
ONTARIO
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE (WITNESSES OR COMPLAINANT) IS PROHIBITED FROM PUBLICATION BY ANY METHOD PURSUANT TO AN ORDER UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
RL
reasons for judgment
The Honourable Mr. Justice Rick Leroy
Released: July 23, 2018