Court File and Parties

COURT FILE NO.: CRIMJ(P) 496/17 DATE: 20180710

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN C. Hackett, for the Crown

- and -

R.P. G. Purves, for the defendant

HEARD: May 29, 30, 31, 2018, at Brampton

Reasons for Judgment

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of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.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

André J.

1R.P. is charged with the offence of sexual interference in relation to C.H., who is his wife, J.P.’s daughter. During the judge alone trial, C.H. testified that on one occasion between June 1, 2012 and September 30, 2012, R.P. attempted to have sex with her while the two were alone in the family residence. R.P. did not take the stand, however J.P. testified that her daughter has a history of not telling the truth and harboured an intense dislike of R.P. It now behooves me, based on the evidence I accept, to decide whether Crown counsel has proven R.P.’s guilt beyond a reasonable doubt.

Summary of the Evidence

2In January 2016, C.H. reported to a guidance counsellor at her school that she wanted to leave her mother’s residence. She also reported to the counsellor that a few years previously, her stepfather had sexually assaulted her. Later that day, C.H. gave a videotaped statement to the police which was admitted as part of the Crown’s case, pursuant to s. 715.1 of the Criminal Code, describing what had happened.

3C.H. told the police that on the previous day her mother yelled at her and threatened her. She went to speak to a counsellor because she did not want to live at her mother’s home anymore and that J.P. had told her she could move out if she did not like R.P. C.H. stated that she disliked R.P. because he told lies to J.P. about her, and that her mother never believed her.

4C.H. further advised the police that one summer in 2012, R.P. and herself were at home. She was lying on a bed. R.P. entered the room, pulled down her pants and opened her legs. She saw him go to her mother’s room where he retrieved a condom from a dresser in the room. He put on a condom and tried to have sex with her. He kept telling her to remain silent. He tried to get on top of her. She responded by trying to move around. She told him to stop. She saw his hard penis. R.P. tried unsuccessfully to put his penis into her vagina. He stopped after failing to penetrate her. Afterwards, R.P. and herself got dressed and went to C.H.’s grandmother’s home. C.H. did not tell her mother about the incident because she feared that her mother would not believe her. She told her sister and mother about the incident months later, and then told her mother on the same day. J.P. told R.P. about what C.H. had stated. He denied any inappropriate conduct with C.H.

5When asked by the interviewing officer what should be done about R.P., C.H., replied: “Maybe caution him … I think that it’s better to caution him”. C.H. also stated that she believed that if she told her counsellor about the incident with R.P., she would become a ward of the Children’s Aid Society.

6Cheyanne, C.H.’s sister, is twenty-three years old. She is seven years older than C.H., and moved out of her mother’s home in September 2009. When C.H. was about ten years old, C.H. told her that R.P. had sexually assaulted her that week. C.H. was crying when she described the alleged incident to her older sister. C.H. told her that R.P. had pulled down her pants while she was in a room. He had a “rubber thingee” in his hand and tried to have sex with her but eventually stopped trying. Cheyanne talked to J.P. about what C.H. had said to her but J.P. believed that the allegations were untrue.

7J.P. testified that R.P. worked afternoon shifts in a warehouse from October 2012 to 2015. She always left R.P. and C.H. at home when she went to work. Initially, R.P. and C.H. had a good relationship. The relationship soured within two months after R.P. moved into J.P.’s residence in the summer of 2010. C.H. started being disrespectful to R.P. She refused to do whatever he asked. She repeatedly threw tantrums. C.H. accused R.P. of saying things which were not true.

8J.P. testified that C.H. had problems at school long before R.P.’s involvement with J.P. J.P. received calls and letters from school regarding C.H.’s attendance record.

9With respect to the allegations, J.P. stated that C.H. had told her once that R.P. had asked her if she ever had sex. J.P. denied that C.H. told her that R.P. had sexually assaulted her. C.H. told her about R.P.’s question on the day C.H. and R.P. went to visit J.P.’s mother.

10J.P. testified that the dresser in her room was not visible from the spare bedroom where the sexual incident allegedly occurred, and maintained that she never kept condoms in her home.

Analysis

11This case turns on the credibility of the witnesses and the extent to which, based on the evidence I accept, I am left in a state of reasonable doubt about the Crown’s case against R.P. Given that the alleged incident occurred when C.H., who is now sixteen years old, was approximately ten years of age, I am required to assess her credibility in a manner described in the applicable jurisprudence.

12For example, in R. v. W.R., [1992] 2 S.C.R. 122, the Supreme Court noted at para. 24 that: “Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection”. The Supreme Court, at para. 24, approved the following statement from R. v. B.(G.), [1990] 2 S.C.R. 30, at pp. 54-55, which stated:

… 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.

13Similarly, in assessing the credibility of a young witness, the court should not be guided by “old stereotypes relating to the inherent unreliability of children’s evidence…”: see W.R. at para. 31.

14Additionally, I am mindful of the Supreme Court of Canada’s decisions in R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 121, and in R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at paras. 101-103, to the effect that the determination of credibility in sexual assault cases should be decided without resort to folk tales about how abuse victims should react to trauma. Furthermore, the credibility of a complainant’s testimony in a sexual abuse case is not presumptively or automatically diminished because of an ongoing relationship with an alleged abuser: see also R. v. A.R.J.D., 2018 SCC 6, [2018] S.C.J. No. 6, at para. 69.

15J.P. presented her daughter as an inveterate liar, whose intense dislike of R.P. was the reason for C.H.’s allegations against R.P. I have a number of concerns regarding J.P.’s testimony. She clearly has a motive to disbelieve her daughter’s allegations, including protecting her husband and, by logical extension, her marriage. She has further reason to question C.H.’s allegations given the problems she experienced with C.H. even before R.P. moved into her residence in 2010. Furthermore, I question J.P.’s account concerning the telephone call she received from C.H. about the alleged sexual assault. First, she testified that the conversation took place on the day when C.H. and R.P. went to J.P.’s mother, which would have been the same day of the alleged assault. However, Cheyanne testified that her sister advised her of the incident days after it allegedly occurred. C.H. also testified that she told her sister about the incident months after it happened. This discrepancy, however, on its own, does not undermine J.P.’s credibility.

16More problematic, in my view, is J.P.’s testimony concerning what C.H. allegedly said to her. J.P. testified that her daughter told her that R.P. had asked her whether she had had sex with anyone. J.P. testified that she then asked R.P. about what C.H. had said to her. He tearfully denied asking C.H. about sex.

17J.P.’s testimony is directly contradicted by that of Cheyanne’s about C.H.’s complaint. Furthermore, J.P., by her own admission, has done little to protect her own children in the past, even to the point of leaving C.H. at school after she had experienced some discipline problems. Additionally, J.P. has not sided with C.H. in the past when R.P. had complained to her about C.H. Finally, Cheyanne testified that when she told J.P. about what C.H. had said to her, J.P. said that C.H. was lying. This contradicts J.P.’s testimony that she would have reported the matter to the police if C.H. told her that R.P. had tried to have sex with her.

18For these reasons, I find that J.P. is not a credible witness concerning what C.H. may have told her about the alleged incident.

19This conclusion begs the question whether J.P.’s testimony or that of Cheyanne for that matter, could be relied on as corroborating the testimony of C.H. The law regarding corroborating evidence has been articulated by the Court of Appeal in R. v. G.C., [2006] O.J. No. 2245, at para. 20 as follows:

[E]vidence of prior complaint cannot be used as a form of corroboration to prove that the incident in fact occurred. It cannot be used as evidence of the truth of its contents. However, the evidence can “be supportive of the central allegation in the sense of creating a logical framework for its presentation” … and can be used in assessing the truthfulness of the complainant.

20In R. v. Khan, [2006] O.J. No. 745, the Court of Appeal noted at para. 41 that “such evidence cannot be used for the prohibited inference that consistency enhances credibility, or the incorrect conclusion that the simple making of a prior consistent statement corroborated in-court testimony.”

21Based on these principles, I cannot use Cheyanne’s testimony as confirmative or corroborative of the account of C.H. However, her evidence can be used, as the court noted in G.C., to “assess the truthfulness of the complainant”: see R. v. Nyznik, 2017 ONSC 4392, at para. 198.

22In that regard, there are two aspects of Cheyanne’s testimony that can be used to assess C.H.’s credibility and the reliability of her testimony. First, Cheyanne testified that C.H. was very emotional when she described what had allegedly happened. Second, Cheyanne gave uncontradicted evidence that she warned C.H. that the allegations she was levelling against R.P. were very serious and that if she was lying, she should stop it immediately. Despite this warning, C.H. did not retract her statement about being sexually assaulted by R.P.

23Defence counsel submits that Cheyanne should not be believed given her failure to report to the police what C.H. had allegedly said to her, thereby exposing C.H. to further abuse.

24Cheyanne however, gave a plausible explanation for not advising the police. She testified that she did not do so out of fear of getting in trouble with her mother. Furthermore, she felt that her younger sister was the person to advise the police about the incident; not her.

25Cheyanne’s testimony also partly corroborates that of C.H. in one important respect. J.P. testified that given the location of the “spare room” where the incident allegedly took place, C.H. would not have seen R.P. enter her bedroom and retrieve a condom from a dresser. However, Cheyanne testified that while the door of the spare room was at an angle, the room was “straight across from my mom’s room”.

26C.H. gave a candid account of what allegedly happened in the summer of 2012. She candidly admitted that she disliked R.P. because he carried untrue stories about her to J.P. She also admitted that she had attendance problems at school while she lived with her mother and after she left her mother’s home. She did not appear to have embellished or exaggerated her account of what happened. Had she wished to demonize R.P. as much as possible, she would not have testified that he did not succeed in his attempts to penetrate her. Significantly, when the interviewing officer asked her what she thought should happen to R.P., she replied that the police should caution him. She made no mention of wanting to have him charged and/or imprisoned.

27Defence counsel submits that C.H. should be disbelieved because she had a motive to lie. She wanted to leave the residence. Furthermore, Cheyanne testified that on the day before C.H. complained to the guidance counsellor, Cheyanne told C.H. that she could get under C.A.S. care if she complained to the counsellor.

28C.H.’s testimony however, contradicts this alleged motive for fabricating a story about R.P. sexually abusing her. First, when she reported the incident to the guidance counsellor in 2012, her anger was directed at her mother who, only the day before, had become upset with her because of her room being untidy. Second, C.H. testified in cross-examination that she had already decided not to return home even if the C.A.S. did not accept her. This testimony undermines the submission that C.H. made up a story about sexual abuse to get under C.A.S. care.

29The fact that C.H. went to her grandmother’s home with R.P. following the incident does not undermine her credibility given, that this alleged failure reflects an old stereotype that victims of sexual abuse instinctively disassociate themselves from their abuser after being abused: see A.R.J.D., at paras. 70-71.

30Defence counsel further submits that C.H.’s testimony should not be believed because of her admission that she stole a cellphone from her own pastor in 2015. C.H. candidly admitted that she had done so but testified that she had given the phone to her mother who inexplicably retained it rather than returning it to its rightful owner. In my view, C.H.’s acceptance of her wrongdoing does not undermine her credibility.

31For the above reasons I find that C.H. is a credible and reliable witness and accordingly, I accept her testimony that R.P. unsuccessfully tried to have sex with her.

32I therefore find as a fact that R.P. did attempt to have sex with C.H. in a bedroom in his residence. He unsuccessfully tried to penetrate her but eventually stopped. He did so when the two were alone in the house. C.H. later told her sister about the incident and then her mother who did not believe her. C.H. disclosed the incident to a guidance counsellor four years later at a time when she wished to leave her home because of ongoing problems with her mother.

33The Crown has therefore proven R.P.’s guilt beyond a reasonable doubt.

Conclusion

34I find R.P. guilty of the offence of sexual interference.

André J.