R. v. M.M., 2018 ONSC 4911

R. v. M.M., 2018 ONSC 4911

COURT FILE NO.: 17-27

DATE: 20180816

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

BETWEEN:

HER MAJESTY THE QUEEN

– and –

M.M.

Defendant

Elaine Evans, counsel for the Crown

Yashar Tahmassebipour, counsel for the Defendant

HEARD: July 9, 10, 11, 12, 13/ 2018

reasons for judgment

lacelle j.

1The accused is charged with various sexual offences relating to the complainant A. J. At the time of the alleged events the complainant was between the ages of 12 and 14. She knew the accused because he was her mother’s boyfriend.

2At trial, the Crown called the complainant, her grandmother, and a family friend (Ms. F.). The defence did not call evidence. However, on consent, videotaped statements made by the accused setting out his account were entered into evidence by the Crown.

3The defence concedes that based on the accused’s account in his videotaped statements convictions on certain counts are appropriate. The issue in this case is whether the Crown has proved beyond a reasonable doubt that additional touching alleged by the complainant occurred. This issue turns on determinations of credibility and reliability.

Overview of the evidence

The complainant’s account at trial

4The complainant was 18 years old when she testified about these events. Her allegations may be summarized as follows.

5The first incident of sexual abuse by the accused occurred during the summer when the complainant was 12 years old. She was living at the home of P.W., who she believed to be her father and with whom she had lived since she was a child. At the time, the accused was living in the basement of the home. The complainant testified that she was abused by the accused on one occasion in that location. She recalled that the accused had taken Mr. W. to his girlfriend’s house and that her younger siblings were all visiting their mother. She was alone in the house on the couch in the living room when the accused returned. She recalled that he approached her on the couch, leaned over her, and kissed her neck. The complainant was scared and in shock. She recalled that the accused then started playing with her vagina with his hand over her clothing. It didn’t last very long. She said she did not tell Mr. W. what happened when he came home.

6The complainant recalled another incident which occurred at her mother’s apartment during the winter of her grade 6 year. On this occasion, the accused asked the complainant’s mother to get him a coffee. The complainant’s mother left the apartment with the complainant’s siblings to do so. While she was gone, the complainant sat on the end of the pull out bed where her mother and the accused slept. The accused was already on the bed watching television. The complainant recalled that the accused pulled her shoulders until she was lying down on her back. He started kissing her neck. Then he dry humped her. She felt his erection on her vagina. The incident ended after she saw her mother approaching through a window in the apartment. She did not tell her mother what happened. She said there were no other incidents at her mother’s place.

7After this incident, the complainant said that she told Mr. W. that the accused was touching her. His response was to say that he would kill the accused. To the complainant’s knowledge, Mr. W. did not inform her mother about her allegation. She was not aware whether or not he confronted the accused.

8The complainant next recalled incidents which occurred at her grandmother’s house. She said that it was her grade eight graduation present to be allowed to live with her mother. Since her mother was living at the complainant’s grandmother’s house, the complainant moved in at that location as well. The accused was also living there.

9At her grandmother’s house, the complainant said there was an occasion when the accused came into her room to tuck her into bed and watch a movie with her. The accused came in and lay beside her. He touched her vagina with his hand, under her clothes. The next thing she recalls is his shorts were off and so were hers. He rubbed his penis against her vagina. He had an erection. She was on her back and he was on top of her. None of this activity penetrated the complainant’s vagina. At the time it occurred, everyone else in the household was in their own bedrooms. The incident ended when her grandmother came and knocked on her door and entered her room. By this point the accused had dressed himself. Nothing further was said between the adults and the accused returned to his room with the complainant’s mother.

10On another occasion at her grandmother’s, there was an incident in her room where the accused licked her vagina. This occurred after he had kissed her neck. The complainant was wearing pyjamas which the accused pulled aside but did not remove. He eventually left and returned to his bedroom.

11There was another incident when the complainant says her mother asked her to come into the bed she was sharing with the accused to watch a movie as a family. The complainant agreed and lay between her mother and the accused. While in this position, the accused reached from behind her and started playing with her vagina. The complainant was shocked because her mother was in the same bed. The touching went on for a couple of minutes. The complainant was not aware if her mother noticed what occurred. She did not tell her about it. She explained this was because her mother was happy being with the accused and she didn’t want to ruin it.

12The complainant was asked whether she had ever observed anything unusual about the accused’s genitals. After initially saying no, she was permitted to refresh her memory from an earlier statement. She then testified about an occasion when she was in her room and in her bed when the accused came in, pulled out his penis, placed it at her face touching her mouth, and told her it would taste good. The complainant did not put his penis in her mouth. She asked him why he was so interested in her. The accused replied that she was a younger and hotter version of her mother. He said that if she was over 19 he would have intercourse with her.

13While at her grandmother’s house, there were also incidents where the complainant says the accused would text her during the night and invite her to meet him downstairs by the bathroom. This happened almost every night. The complainant would go to meet the accused. On these occasions the accused kissed her mouth and she would touch his penis with her hand under his clothes.

14In addition to the texting that led to these encounters, the complainant says the accused also sent her inappropriate texts of a sexual nature while she was living at her grandmother’s. The complainant’s mother found these texts on the complainant’s phone and asked if there was truth to their contents. The complainant said there was. Her mother was angry and called her a pathological liar. She said her grandmother was present as this exchange occurred. Earlier that day the complainant had told her grandmother what had been occurring between her and the accused and asked her what she should do. Following the argument with the complainant’s mother, her mother left the house. A family friend was called and she came over. It was at this point that the police were called. This was in early August of 2014.

15The complainant testified in chief about feeling awkward and scared at various times during these events. In re-examination, following a question about why she had not told her mother earlier about events with the accused, she said that if she was being totally honest she had feelings for the accused and was scared to tell her mother. She explained that she hadn’t had a father figure and she felt loved by the accused. She loved him as well. While it felt awkward at the beginning, by the time the accused was inviting her to join him in her grandmother’s bathroom, she loved him like a boyfriend. She said that she thought that if she told her mother she would not be able to see the accused and at the time, this made her sad.

The account given by the accused in his out-of-court statements

The first interview (September 1, 2014)

16Three out-of-court statements the accused made to police were admitted on consent. In the first statement, the accused was advised of the nature of the allegations being made against him by the complainant. He denied them. He said he had never been alone with her. He spoke about text messages she would send him that were shocking and said he told her they had to stop. At the time of the interview he had deleted these texts. He said the complainant was confronted by others about them. He understood that she told her mother and grandmother that they were meant for her boyfriend. He denied he ever replied to the texts and said he ignored them.

17In this first interview, the accused expressed shock at the allegations, but also said that it was not the first time that the complainant had said this about him. He said that P.W. had told him about a prior allegation which was made when the accused started dating another woman and moved out of P. W.’s house.

18The accused told the officer that sometimes the complainant wanted him to go into her room and cuddle with her. He said that “after a while I said no it has to stop you know”. He described that he would lay on the bed and watch a movie with her, that she would “cuddle into” him, and that was it.

19The accused spoke frequently about how if he didn’t provide the complainant with more attention she would get upset, especially if he didn’t say “I love you” back to her. He said the complainant would send him messages that she loved him and if he didn’t answer her back right away “she’s like okay I guess you don’t love me”.

20He said he treated all of his girlfriend’s kids equally but that the complainant would get upset if he told her no or if he was gone for a long time. He agreed with the officer’s suggestion that the complainant was jealous of her mom, saying “kinda sounds like it”.

The second interview (October 27, 2016 with Detective Giampaolo)

21The accused was interviewed again just over two years later. The initial police investigation had not produced any charges but because of new information received by police, the accused was asked about whether he would participate in a polygraph examination. He agreed to do so.

22In the initial part of the interview, the accused denied touching the complainant for a sexual purpose. The interview continued with general conversation about the accused’s background. The accused confirmed he was 33 years old at that time and that he had a grade 12 and some college education. He confirmed that he had been involved with the complainant’s mother for a period of 3-4 years. He went through a series of questions about his health and was advised that he was a suitable candidate for a polygraph exam.

23Shortly after this point, the officer suggested to the accused that if the real truth was that the complainant was coming on to him and there were certain situations that did happen and spiralled out of control, they should discuss that right now rather than have the polygraph tell her that the accused had been untruthful. The accused responded by saying “there is one incident”.

24The accused went on to describe an incident when he woke up to find the complainant on top of him trying to “ride him” and trying to kiss him. He said he pushed her off and said that’s not right, and that he was like her step-father. The officer asked “She kissed you? She’s on top of you? One incident?”, and the accused replied “yup”. He confirmed he did not tell anyone about that incident.

25Moments later, the accused volunteered, “There is one more time which is at P.’s”. He said he would go up to the washroom and every time the complainant would be at the top of the stairs waiting for him. He said if he did not kiss her she would get mad. So, one time, he gave her a kiss. At her insistence he kissed her on the lips. He then went to the washroom and that was it.

26The accused was asked further questions about these incidents. He said that when he woke up with the complainant on top of him she also touched his penis. He said that all of the touching occurred over their clothing. He said that when he woke up he thought it was her mother and when he realized it was the complainant he said “you can’t be doing this”.

27The accused went on to further describe the sexual contact he had with the complainant. He said when they were cuddling she would try and put her hand on his and made him try to rub her vagina. This occurred both over and under her clothes. He said when it went as far as being under her clothes he would say “no, you can’t do this”.

28The accused offered other information in this interview. When asked about the sequence of incidents, he said “I don’t remember. It wasn’t … it wasn’t a constant thing … it was once in a while”. He said this was one of the reasons that he left, explaining “[c]an’t keep going through this because what if something seriously happens”. He admitted there were multiple times when the complainant was on top of him and said that it “usually happened was at her mother’s house in the country”.

29The accused gave more information. At P.’s house, he said that P. was always there and they were never alone. The accused again confirmed the texting between the two saying “at first I thought it was her mother because they share the phones”.

30The accused denied that there had been any penetration of any kind at any time. He denied putting his mouth on the complainant’s vagina or licking it. He denied he ever exposed his penis to her. On this point, however, he said that the complainant would always try to get him to take it out and that she wanted to suck his penis but he did not let her. He said he never forced the complainant to do anything.

31The accused confirmed that he was aware that the complainant was 13 at the time and said “that’s why I stopped … and said listen you can’t be doing this. This is not right … and that’s when I decided that’s it”.

32The accused explained that he did not tell the first officer all of this because he was ashamed of himself. He said: “I’m very very ashamed. Like I know it was wrong”, before adding “You know she came onto me and I did push her away”. He said he should have told someone after the first time it happened and should not have let it keep happening.

33The accused also spoke of contact he had had with the complainant on Facebook. He said she told him that she did all this because she was in love with him. With respect to what he had told the officer, he said it felt good to get it out. He told the officer “I’m the adult, she was the child, I should’ve been better”.

The letter of apology

34The accused wrote the complainant a letter of apology at the end of the second interview. The letter reads:

“Dear A.,

I just wanna say I am truly sorry for what I did to you I know it was wrong and should of never let it happen. I should of stopped it when it started to happen never wanted to hurt you I’m truly sorry to what has happened to u I was adult and should of let it go has [sic] far as it did that is why I lefted cause I knew it was wrong and that it had to stop. I’m truly sorry for the pain you have gone through.”

The third interview (October 27, 2016 with Detective Groulx)

35Immediately following the interview with Detective Giampaolo, the accused was again interviewed by the officer in charge for the investigation. In that interview, the accused said that the complainant was 12 or 13 when she “tried to put her attention on him” and when the incidents of sexual touching started. He said that the complainant and her siblings considered him as their step-father.

36He confirmed the order and frequency of the sexual contact he had with the complainant: the incident at P.W.’s was first. He said he thought there was one incident at her mother’s apartment and other incidents occurred at the complainant’s grandmother’s house.

37With respect to the incident at the complainant’s mother’s apartment, he said the complainant came and jumped in the bed with him. He indicated that this was one of the incidents when he would wake up to find the complainant on top of him or trying to touch him. He said that every time he would say this is not right and he would stop. He said it didn’t happen all the time at her mother’s because they only had the kids maybe twice a month. He said it happened once or twice a month.

38While the accused maintained that he would always push the complainant off him, he also agreed with the officer’s suggestion that he would let it happen and that this is what was problematic. He maintained that he and the complainant engaged mostly in touching and fondling and that there had never been any penetration where he inserted himself into her vagina.

39As the interview concluded, the accused asked the officer if he could be straight with her. He then told her that the reason why he thought this happened was because he was a sex addict. He said, “I think that’s why it kinda happens, because she was giving me the sexual tension … And I think that why … it’s the age that clued in my head and that’s when … when what am I doing like … this is not right … It would be different if she was a 21 year old, like … this is not right. You know. I think that’s why, like I said, the reason I took off was like I knew this wasn’t right”.

40When the officer later asked why the accused had left the complainant’s mother, he said that it was because they were having problems: they weren’t having any sex and she was constantly lying to him. Later still he suggested that the real reason was because the complainant’s mother wanted to be back with her husband.

The positions of the parties

The defence

41The defence submits that given the accused’s admissions in his out-of-court statements, the court should find the accused guilty of the first three counts on the indictment (ss. 271, s. 151 (touching the complainant with his mouth, and s. 151 (touching the complainant with his hand). These findings would be made based on his admissions that he kissed the complainant and put his hand on her vagina. The defence disputes the sufficiency of the Crown’s case on counts 4 and 5, which relate to the allegations that the accused touched the complainant with his penis (s. 151) and that he invited the complainant to touch him (s. 152).

42The defence submits that the issue in this case is reliability. While the complainant was a credible witness, her accounts have been shown to vary substantially from her prior statements and the accounts of other witnesses. Accordingly, the court should find that her account of events is not sufficiently reliable to found further convictions.

43Counsel argues that the out-of-court statements of the accused should be accepted. He submits that the fact that the accused made a voluntary confession enhances his account’s credibility and reliability. In response to the Crown’s argument, he argues that the accused did not blame the complainant for what occurred and that he accepted responsibility. He says that the “instinct of self-preservation” kicked in for the accused during the interviews and he wanted to be clear that none of the sexual activity which occurred was the product of violence. He also argues that to the extent that the accused presented himself as the victim, he had taken a suggestion made by the officer and expanded on that. However, as he went on, he accepted more and more responsibility for what he had done.

The Crown

44The Crown argues that the complainant’s account of events should be accepted. Counsel highlights the vulnerability of the complainant at the time of these events and argues that this may be considered by the court in reconciling the confusion in her account of various events, as well as inconsistencies between her recollections as compared to those of other witnesses. Counsel also highlights the extent to which the complainant’s account is corroborated by her grandmother and the accused in his out-of-court statements.

45Insofar as the accused’s out-of-court statements are concerned, the Crown says that the accused minimized his conduct and that his account should not be accepted in its entirety. She argues that in making the admissions he did the accused was trying to “get ahead of the evidence” and minimize the damage. Counsel points to inconsistencies within the statements and with other evidence at trial in arguing I should reject the accused’s account of the details of what occurred between him and the complainant. She says it is neither a credible or reliable account that he was overborne by the complainant and that it is incredible that he would stay silent in the face of conduct like this on her part and that he would place himself continuously in situations where it might recur. She says his effort to blame the complainant is a distortion. Counsel highlights language used by the accused, such as describing things as having gone too far and that it wasn’t a “constant thing”, as indications of the scope of the abuse the accused was otherwise minimizing. Finally, the Crown points out that none of the scenarios set out by the accused in his statements, including the fundamental premise that it was the complainant who initiated sexual contact, was put to the complainant in her cross-examination which was a violation of the rule in Browne v. Dunn.

The legal principles

46In our law, an accused person is presumed innocent until proven guilty. It is the Crown who bears the burden of proving any criminal offence charged beyond a reasonable doubt. Our law requires that if a judge has a reasonable doubt about whether the accused committed a criminal offence, the accused must be acquitted.

47In a case like this, where the accused’s account has been presented in evidence, the case of W.D. directs the court in its approach. In summary, it tells me that if I believe the accused’s account, or if it leaves me with a reasonable doubt after I have considered it in the context of all the evidence called at trial, he must be acquitted. In a case like this, then, my assessments of credibility and reliability are particularly important.

48It is important to note, however, that in deciding a case, a judge is not comparing each account and deciding which account to believe. It is also important to note that a judge can believe a witness, but still be left with a reasonable doubt about what happened after considering all of the evidence.

49Further, even if a judge disbelieves the account given by an accused person, or is not left with a reasonable doubt based on it, this does not mean that the Crown has proved its case. A judge must always determine based on all the evidence called whether the Crown has proved each element of every offence charged beyond a reasonable doubt because there is evidence that the judge accepts that supports each element the Crown is required to prove.

50Our law has developed in this way because of the jeopardy accused people face when they are charged with criminal offences. Before a person is required to face the consequences of a criminal conviction, a judge must be sure that the accused committed the offences with which he is charged. If the evidence is not strong enough to show with that degree of certainty that the accused committed the offence, the accused must be acquitted.

The approach to the evidence of children

51In considering the evidence in this case, I also consider the law that addresses the correct approach to assessing the evidence of children and of adults who testify about events that occurred when they were children.

52The case of R. v. R.W., 1992 CanLII 56 (SCC), [1992] S.C.J. No. 56 at para. 23 confirms that there is no assumption that the evidence of children is always less reliable than the evidence of adults. Of course, a court may approach a child’s evidence with caution, if that caution is merited in the circumstances of the case.

53The court in R.W. further expanded on the correct approach to children’s evidence and evidence given by adults about events when they were children at paragraphs 24 and 26. The court recognized 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. It recognized 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. The court explained 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.”

54This sensitivity to the experience of children does not mean that the court should use a lesser standard in assessing the evidence of a child or of an adult testifying about events as a child. The credibility of every witness who testifies before the courts must be carefully assessed “by reference to criteria appropriate to her mental development, understanding and ability to communicate.” However, a court must be mindful that the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children.

55The court further directed that where an adult is testifying about events which occurred when he or she was a child, credibility should be assessed according to criteria applicable to him or her as an adult witness. Yet with regard to the 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.

Delayed and incremental disclosure

56Our legal system has evolved to the point where it is understood that “there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave”: R. v. D.D., 2000 SCC 43, [2000] S.C.J. No. 44 at para. 65. The timing and manner of disclosure of abuse is an individual choice based on individual circumstances. Therefore the timing of a complaint is “simply one circumstance to consider in the factual mosaic of a particular case”, and “a delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant”: D.D. at para. 65.

57It is also not uncommon as a matter of human experience for persons who have suffered trauma to make incremental or piecemeal disclosure of the abuse. As noted by our Court of Appeal in R. v. D.P., 2017 ONCA 263 at para. 31, “[t]he comments in R. v. D.D. are potentially applicable to both, depending of course on the circumstances revealed by the evidence in any particular case”.

Some, none or all evidence of a witness may be accepted or rejected

58A legal principle that has particular relevance in this case is that a judge may accept some, none, or all of a witness’s evidence. As noted by Hill J. in R. v. D.B., 2013 ONSC 7753 at para. 103 “a trier of fact is entitled to accept parts of a witness’ evidence and reject other parts, and similarly, the trier can accord different weight to difference parts of the evidence that the trier of fact has accepted: R. v. Howe, 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (C.A.)(Q.L.), at para. 44”.

The failure to put significant factual matters to a witness

59I consider the direction of the Court of Appeal in R. v. Quansah, 2015 ONCA 237 that the rule in Browne v. Dunn will only be violated where the proposed contradictory evidence and its significant aspects is not put to the witness. It will not be violated "where it is clear, in all the circumstances, that the cross-examiner intends to impeach the witness’s story … Counsel, who has cross-examined the witness on the central features in dispute, need not descend into the muck of minutiae to demonstrate compliance with the rule” [citations omitted]: Quansah at para. 86.

60Regardless, given its fundamental concern with trial fairness, the rule in Browne v. Dunn must be flexibly applied: Quansah at para. 101. The remedy for any breach will depend on a number of factors (summarized in Quansah at paras. 117-124), including any request made to permit recalling a witness. If the Crown fails to raise an issue with respect to the compliance with the rule during the trial, it should “provide some explanation for the lack of timely objection”. This will be one factor for the trial judge’s consideration in determining what remedy to apply to any breach. Where the remedy of recalling the witness is not viable, a trial judge may instruct the trier of fact that the failure to cross-examine a witness on contradictory aspects of an accused’s account is a factor that may be considered in determining the weight to give to the accused’s evidence or account: Quansah at paras. 119-121, 126-129.

Analysis

THE EVIDENCE OF THE COMPLAINANT

The contradictions in the complainant’s account

61I begin the analysis of the issues in this case by considering the complainant’s evidence. In general, I found the complainant’s presentation at trial to be compelling. She was very matter of fact about her evidence. She gave no hint of evasiveness or defensiveness, even when she was shown to have given contradictory evidence. She appeared to be honest and truthful. She appeared to be doing her best to answer counsel’s questions.

62However, a judge must consider other issues in assessing whether to accept a witness’s account. Whether or not a witness has been shown to be inconsistent about their account is an important tool in assessing whether the witness has a reliable memory of events.

63A witness is not expected to remember with certainty every detail of what occurred in a certain situation. As I have explained, judges must be particularly sensitive to what children may reasonably be expected to remember about an experience. But if a witness is inconsistent about an important detail, a judge must consider that in assessing the reliability of the evidence.

64In this case, many contradictions were demonstrated in the complainant’s account of these events. For instance, with respect to the first incident at P.W.’s house, the complainant told police in her first statement that the accused had her pinned with his feet, that he held her wrists, and that he started kissing her right down to her vagina. At the preliminary inquiry, she said instead that during this incident the accused rubbed her vagina. She also said that she told P.W. about this after it happened and his response was “he’s lucky there’s a law”. The complainant agreed that during her second police statement she told the police that P.W. was there when the incident happened. She also said there was more than one incident at P.W.’s house, including one when her sister and P.W. were downstairs and she and the accused were in her room. In her trial testimony, she was firm in her recollection that only one incident had occurred at P.W.’s house. She described one occasion during which she said that the accused had kissed her neck and fondled her vagina with his hand. She testified that P.W. was not home and that she did not tell him what occurred after it happened. I find that the complainant’s account of what occurred at P.W.’s house has been materially inconsistent.

65Further contradictions like these were highlighted in respect of other aspects of the complainant’s account. For instance, during her trial testimony, the complainant stated there was one incident at her mother’s apartment. She agreed, however, that in a statement to police she told the officer that incidents occurred 3-4 times per week.

66The complainant also testified at trial that the accused’s penis never made contact with the inside of her vagina. However, she acknowledged that she had previously told police that she had been partially penetrated and that she had started bleeding not long after that as a result of that penetration. In that statement, she said that this is what led her to disclose to her grandmother. She further agreed that she had told the officer earlier in that same statement that there had been no penetration.

67The complainant agreed that she never told police about the times when the accused texted her to join him in the bathroom at her grandmother’s house. She also agreed that while she testified during the preliminary inquiry about the invitation to go to the bathroom, she said she had not gone. During her testimony before me, she said she did go, that the accused kissed her, and she touched his penis.

68There were other inconsistencies in the complainant’s account of her disclosure of these events. At trial, she said her first discussion with her mother about them came after her mother found the text messages. In a prior statement, she told police that she had told her mother several times before.

69While there were additional contradictions in the complainant’s account, this summary is illustrative of their nature and scope. I find that there were many significant and material contradictions in the complainant’s account of these events.

Contradictions with other Crown witnesses

70There were also contradictions between the complainant’s account and that of other witnesses on certain issues. For instance, with respect to the circumstances of her disclosure, the complainant’s grandmother and the family friend who assisted, Ms. F., described the complainant’s disclosure as occurring in the middle of a corn roast her grandmother was hosting for a number of guests, including Ms. F. This was after the complainant had an argument with her mother. In contrast, the complainant said she told her grandmother first, had an argument with her mother following that, and that eventually Ms. F. was called to the house and came over. On the complainant’s account, her grandmother was present while the argument with her mother occurred. Her grandmother said she was not. The complainant’s account gave no indication that any of this occurred while her grandmother was hosting an event at her house.

71The complainant’s grandmother also described her sleeping habits. Ms. G. appeared to be an honest witness without agenda and I accept her evidence. She indicated that she suffered from insomnia and spent only a few hours every night asleep. She slept with her door open and could hear if anyone else got up in the night. She said she never observed the complainant going down to the bathroom in the middle of the night. While on the grandmother’s account it is still possible that she did not observe this happening because she was asleep, this evidence tends to contradict complainant’s account of meeting the accused in the bathroom on an almost nightly basis at one point in the summer.

72I want to be clear that I am considering the evidence of the complainant with the sensitivity required for assessments of the evidence of children, particularly given the passage of time between the alleged events and the complainant’s testimony at trial. I agree entirely with the Crown’s submission that the complainant was a very vulnerable child when these events were occurring. The instability in the relationships with the people who should have cared for her most was a theme in the account of every witness who testified in this trial. As a child, the complainant was entitled to far more than what she received from the adults around her. But while I agree this vulnerability existed and accept that it may have impacted the complainant’s disclosure process and memory of events, I cannot rely on it to wholly reconcile the many contradictions in the evidence before me.

73Given the inconsistencies in the evidence, there is a sound basis for finding that the reliability of the complainant’s evidence suffers from significant frailties. Given all of these differences in her account, when I consider her evidence alone, I am not sure about the scope of the abuse in the various locations she described.

74In arriving at this conclusion, I consider that no real explanation was provided by the witness to account for any of these inconsistencies. While I also consider that a child’s memory of events will fade with the passage of time, and incremental or piecemeal disclosure may be made by a witness, I am not satisfied that this additional consideration provides a basis to reconcile the many and significant differences in the complainant’s recollections between the time of her various prior statements and now.

75I note that in her evidence, the complainant did not suggest that she had made piecemeal disclosure as occurs in some cases where a witness can explain why they did not initially communicate certain facts about their experience. I also note that in some instances, the complainant’s account at trial was more benign than a previous account of events, which is difficult to characterize as incremental disclosure. For instance, I cannot make sense of a prior account that she had been penetrated to the point of bleeding with her evidence at trial that no penetration occurred. I cannot reconcile the differences between her account that only one event occurred at her mother’s, and her prior statement that it was as often as 3-4 times per week. As I have said, while I accept that the complainant’s memory has faded since these events, the number and nature of the inconsistencies here are such that I have fundamental concerns about the quality of the witness’s memory of events. On this issue, I agree with the submission of the defence: while the complainant was utterly and completely credible in her testimony before me, the reliability of her evidence is problematic.

Evidence the complainant has been untruthful about the allegations

76Finally, I also consider that there is evidence that the complainant lied about what went on between her and the accused, and in particular, her evidence that she told her mother at some point that she had lied about what happened with the accused. She said she told her mother this to impress her. While the complainant’s desire to please her mother was clear throughout the evidence in this trial and it may be why she lied, this is evidence which I must consider in determining whether to accept her account of events.

THE ACCOUNT GIVEN BY THE ACCUSED

77My obligation is to consider the whole of the evidence in determining whether the Crown has proved its case beyond a reasonable doubt. In this case, that evidence includes the out-of-court statements by the accused to two police officers. Together with the complainant’s account those statements provide a cogent case that the complainant was sexually abused by the accused. What is more difficult to find beyond a reasonable doubt is precisely what acts occurred, how often, and in what circumstances.

78I pause here to say that having observed the interviews that produced the accused’s out of court statements, the concessions made by the defence about their admissibility were entirely appropriate. While the accused did not present as a sophisticated person, he demonstrated a clear operating mind in his dealings with the officers. I am satisfied beyond a reasonable doubt that his statements were Charter compliant, voluntary, and that police tactics did not induce them. The interviews involved gentle questioning by the officers with an accused who was clearly talkative and who appears to have been motivated in his admissions by the desire to unburden himself.

79When I consider the accused’s statements in the context of the totality of the evidence, I find they demonstrate consistency with some important aspects of the complainant’s account, as well as that of other witnesses. The evidence was consistent and I find that:

a. The relationship between the accused and the complainant was unusually close and strained the norms of a step-father’s relationship with his step-daughter. The complainant acknowledges that she loved the accused and felt wanted by him. The accused speaks of exchanges where the complainant would be upset if he did not tell her he loved her back as well as about her desire for his attention.

b. On both accounts, and indeed on the accounts of the complainant’s grandmother and Ms. F., the complainant’s relationship with her mother was often difficult. As I have said, the totality of the evidence paints the picture of an emotionally vulnerable child who was frequently rejected by her mother. The accused’s account is consistent with this picture.

c. The accounts of the accused and the complainant are consistent that sexual incidents between them took place at three locations (P.W.’s, the mother’s apartment, and the grandmother’s residence), that touching occurred, and that these incidents were repeated.

d. Both accounts are consistent that the complainant had use of a cell phone and messages of a sexual nature were exchanged between the accused and the complainant on that phone.

e. The sexual incidents described by each at each location have some symmetry: kissing at P.W.’s, contact in bed at her mother’s apartment, contact while cuddling in her bed at her grandmother’s residence. Both describe at least one incident where there was genital contact over clothing. Further, both describe an attempt at oral sex - the complainant’s evidence is that the accused invited her to put his penis in her mouth while the accused says that there was an occasion when the complainant wanted him to do that.

80Given the totality of this evidence, the defence properly invites the court to make findings of guilt on counts one through three of the indictment.

81I turn now to consideration of whether the Crown has proved the elements of the remaining offences charged (count 4, touching of the complainant by the accused with his penis and count 5, an invitation by the accused to the complainant to touch his body) beyond a reasonable doubt.

82I commence with a consideration of the credibility of the accused’s account. I agree with the Crown that many aspects of the accused’s account are contradictory. On the basic issue of whether or not he and the complainant were ever alone together, he is inconsistent. It is also difficult to make sense of his various statements about why he left the relationship with the complainant’s mother, particularly given the evidence that he continued in that relationship after the complainant’s disclosure. More materially, as regards his conduct with the complainant, I find that his shifting account from a complete denial to admissions of multiple occasions of sexual contact demonstrates that he is not credible on the fundamental issue in this case. Consequently, I do not believe his account. While some of what he said may be true, I do not believe that he told the officers the whole of the truth.

83In particular, I do not believe him when he says or suggests that he was an involuntary participant in the sexual activity, nor does his account leave me with a reasonable doubt about that. I arrive at this conclusion because:

a. The accused misled police about whether anything at all had occurred between them – on the central question of whether or not there was any sexual contact between him and the complainant he has been dishonest;

b. The accused minimized his conduct as he presented his account: at first he said there was one incident. Then he admitted others. He expanded his admissions to the point where he was using language like it “usually happened” to describe what went on. I find that his account understates the full extent of his participation in the sexual activity and the circumstances in which he engaged in it with the complainant.

c. The accused’s apology to the complainant and statements to the officers acknowledge that he knows his conduct was wrong. This admission and other language used in his account (such as suggesting things “went too far”) suggests that even if some of the activity was initiated by the complainant, or he believed her to have done so, he nevertheless engaged in it without immediately resisting or telling her to stop, contrary to some parts of his account to the officers.

84I have considered the Crown’s argument pursuant to the rule in Brown v. Dunn and that the accused’s version of the relationship was not put to the complainant. While I find it curious that this was not done given that the defence knew that this account would be presented in evidence by the Crown and relies upon it as the basis for the defence position that certain convictions are appropriate, I also consider that no objection was made by the Crown at the time of the conclusion of the cross-examination of the complainant. As with defence counsel, this was notwithstanding that the Crown knew that this alternative account would be given in evidence. Regardless, in the circumstances of this case, I do not find it necessary to rely on the rule in Brown v. Dunn to fairly assess the evidence.

85To summarize then, this is a case where the accounts given by the only two people who were witness to the alleged offences have significant issues pertaining to either their credibility or reliability. As I have explained, the fact that I do not believe the accused’s account does not mean that the Crown has proved its case. I rely on the totality of the evidence, including the accused’s account, in determining what the Crown has proved beyond a reasonable doubt.

86In terms of the acts that occurred and their circumstances, I rely significantly on the areas of commonality between the accounts given. Having regard to the totality of the evidence, I am satisfied beyond a reasonable doubt of the following:

a. The accused kissed the complainant on the mouth;

b. The accused voluntarily engaged in genital contact with the complainant over their clothing;

c. In the course of cuddling with the complainant at her grandmother’s residence, the accused touched the complainant’s vagina with his hand, over and under her clothing, and this was a repeated occurrence;

d. There were occasions when the complainant touched the accused’s penis with her hand;

e. I do not accept the accused’s account that he engaged in any of the touching involuntarily or to placate the complainant and I am satisfied beyond a reasonable doubt that he engaged in the touching I have just described for a sexual purpose.

f. After considering the totality of the evidence, I am concerned about the specifics of some of the complainant’s memories. I can’t be sure enough of what happened in certain instances given the significant differences in her memory of these events over time. I am left with a reasonable doubt about some of the touching alleged by the complainant, for instance that the accused invited the complainant to put his penis in her mouth, that he licked her vagina, that he rubbed his penis against her vagina under her clothes, or that the complainant went to her grandmother’s bathroom at the accused’s invitation and touched him.

g. I find that the complainant was between the ages of 12 and 14 when the abuse occurred;

h. I find that the accused was akin to a step-father to the complainant;

i. I am satisfied beyond a reasonable doubt that the abuse occurred once at P. W.’s residence, once at the complainant’s mother’s apartment, and multiple times at her grandmother’s residence. At that residence, I am satisfied beyond a reasonable doubt that the accused touched the complainant for a sexual purpose in both the complainant’s bedroom and in her mother’s bedroom.

Conclusion

87Given these findings, I am satisfied beyond a reasonable doubt that the Crown has proved that the accused did touch the complainant with his penis for a sexual purpose and he will be found guilty on count 4. Given my rejection of the accused’s account that he was an involuntary participant in the sexual activity he described with the complainant, the accused’s admissions about the genital contact which occurred while the complainant was on top of him is the basis upon which I find him guilty of this count.

88With respect to count 5, I am not certain enough that the accused invited the complainant to put his penis in her mouth or that he invited her to her grandmother’s bathroom to engage in sexual touching. Accordingly, he will be acquitted on that count.

89In the result, the accused is found guilty on counts 1 through 4 of the indictment and not guilty on count 5.

The Honourable Justice Laurie Lacelle