Court File and Parties

COURT FILE NO.: CR-16-0011-00 DATE: 2018-10-30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN J. McGill, for the Crown

- and -

R.N. A. Pollak, for the Accused Accused

HEARD: July 3-6 and 9-11, 2018, at Thunder Bay, Ontario

DELIVERED ORALLY: Mr. Justice W.D. Newton

WARNING AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

Reasons For Judgment

Overview

[1] R.N. is charged with the following offences: (i) that, between November 1, 2014, and November 15, 2014, she committed an aggravated assault upon L.C. contrary to s. 268 of the Criminal Code, R.S.C., 1985, c. C-46; and (ii) that, between November 1, 2014, and November 15, 2014, she committed an aggravated sexual assault upon L.C. contrary to s. 273(2)(a.2) of the Criminal Code.

[2] At that time, R.N. was the stepmother of L.C., a boy, then aged six.

[3] At commencement of trial, counsel for the accused brought an application to have the Crown or the court call three of L.C.’s former classmates, L.M., I.B., and T.D., as witnesses at trial. For reasons outlined herein, I granted that application and directed that the Crown arrange to have the three witnesses summonsed to be called as witnesses by the court.

The Evidence

[4] The following people testified at trial: L.C.; L.C.’s father, T.C.; L.C.’s step-sister, who also has the initials R.N. (referred to as the “step-sister” for the sake of clarity); L.C.’s former classmates, L.M., I.B., and T.D.; L.C.’s school principal; one of L.C.’s grade one teachers; L.C.’s foster parents; as well as Dr. Brunskill and Dr. Shouldice who provided medical evidence.

[5] R.N. did not testify.

L.C.

[6] At the time of trial, L.C. was ten years old. He had just finished grade four. He testified remotely by video from an interview room adjacent to the courtroom. A support person, who had been one of L.C.’s foster parents since L.C.’s release from hospital, accompanied L.C. during his testimony.

[7] The focus of L.C.’s evidence was on his videotaped interview with the police on February 2, 2015, another recorded interview with the police on January 14, 2015, and a recorded video interview with a worker from the Children’s Aid Society on November 17, 2014, while L.C. was hospitalized in Thunder Bay.

[8] The videotaped interview of February 2, 2015, was played in L.C.’s presence. The video interview lasted for 1 hour and 28 minutes. For much of that interview, L.C. wandered around and did not answer the officer’s questions. Later, a different officer took over the interview and was able to conduct a more direct interview. During the interview, L.C. made a number of allegations about his stepmother causing or attempting to cause him injury. He admitted, during the interview, that some of the allegations were untrue.

[9] He first told the officer that his stepmother cut his arm with a knife. He then said that he did not know if she stabbed him. Immediately thereafter, he said that this was not actually true.

[10] L.C. told the officer that his stepmother told T.C., L.C.’s father, that she was going to kill L.C. if L.C. did not move out of the home.

[11] He said that his stepmother beat him up only when his father was at work. The officer asked L.C. what else happened, and L.C. answered that he did not want to talk. The officer continued to prompt, but L.C. was uncooperative. At one point, L.C. said, “dad froze me in ice.” When asked what else happened, L.C. said many times that he was not telling the officer or that he did not remember.

[12] The officer attempted to prompt L.C. by asking L.C. to remember what L.C. told him during the previous interview about the injury to his scrotum. When asked whether he could tell the officer what happened, L.C. said no.

[13] After about 52 minutes, a second officer took over the interview. She asked L.C. why he went to the hospital, and he responded that “my private split open.” When asked how that happened, L.C. said that his stepmom “tried to get it to split open” and that she “squeezed it.” The officer asked if the stepmother tried to “fix the split,” and L.C. said that she did with Band-Aids, long ones, round ones, and big square ones. He said that his brother and sister did not see this.

[14] When asked what else his stepmother did, he said that she would put her boot on his face and kick him and choke him. He said that that happened lots and that his stepmother did that because “she hated me and she wanted me to get killed.”

[15] He said that his stepmother lies and tells on him and then his father spanks him. He said that both his father and stepmother spanked him with a belt.

[16] He told the officer that his stepmother would put him out of the house in deep snow with no clothing and told him to find another house. L.C. said that he was made to go outside without clothes “lots.”

[17] He also said that his stepmother tried to drown him in the pool in their town. L.C. then said that he did not know whether she was trying to drown him or not. He later said that this was a “story” as was the allegation that his stepmother cut him with a knife. In response to the officer’s questions, L.C. said that some of what he said was the truth, including what happened to his scrotum and about being put outside naked in the snow. He said that what he said about his stepmother kicking him was not the truth.

[18] He was asked about a prior discussion about the dogs. Initially, L.C. did not want to talk about that, but then said that they had two dogs, a small dog and a Great Dane. He said that the small dog “peed on the floor” and that his stepmother held him down and pushed his head into the “pee” and told him to lick it up. L.C. said that the Great Dane “pooed” in the backyard and that his stepmother wanted to make him eat the “poo.” He said that his stepmother took the “poo” and put it in his eyes, ears, nose, and mouth. He said that his step-sister was there and was “trying to save me.”

[19] After playing the video statement, counsel for the Crown questioned L.C. She began by asking L.C. if there was anything he heard in the statement that he would like to correct. L.C. testified that, when he was talking about the knife, it was not true that his stepmother cut him. He said that “a long time ago” his stepmother messed up his room and cut herself on the arms and blamed that on L.C. He said that he made stories up when he spoke to the police because he did not really want to talk about what happened. Although he said that the drowning attempt was a lie in the video, he testified that this was true, and it happened because his stepmother hated him. He said that this happened when he was about three or four.

[20] When asked about the injury to his scrotum, L.C. said that what he said in the video statement was a lie. He said that his scrotum got swollen because his stepmother was punching and kicking him and that it split open at night. He said his stepmother put bandages on his scrotum. He said that, when he was in the hospital, his stepmother whispered in his ear that he had better not tell anyone or she would kill him. He said that is why he did not tell. He also said that other things he said in the video were lies.

[21] He stated that initially he said that his classmates caused his injuries, but clarified that he said that because his stepmother told him, if he said it, she would not kill him.

[22] During cross-examination L.C. was asked about his video interview with the Children’s Aid Society worker on November 17, 2014, while he was in hospital in Thunder Bay. Portions of that video interview were shown to him to refresh his memory. L.C. acknowledged that he told the worker that two classmates had beat him, swung him around by the arm, and kicked and scratched him. He also acknowledged that he told the worker that one day his “privates got really fat,” that he was squeezing it trying to get it “skinnier,” and that was when it was splitting. He also acknowledged that, after he squeezed his scrotum, his stepmother tried to fix it, but that did not work so his stepmother took him to the hospital. When asked whether he remembered that he did try “to squeeze it to make it smaller,” he answered “yes.”

[23] L.C. was also cross-examined about another video statement to the police on January 14, 2015. He acknowledged that he told the police that two classmates had hurt his “private part” at school by squeezing it with their hands, that he tried to “fix it” by squeezing it himself to make it smaller, and that his stepmother tried to fix it with a hair clip. He also acknowledged that he said that he tried to fix his “privates” himself with a fork. Although he could not remember this, the videotape disclosed that he said that his stepmother tried to fix his “privates” with tape.

[24] L.C. was also cross-examined about his testimony at the preliminary inquiry. He remembered that, at the preliminary inquiry, he said that he had tried to fix his “privates” by squeezing it to make it smaller, and he acknowledged on cross-examination, not only that he said that then, but that he did that too.

[25] His cross-examination ended with questions about his recollection:

Q. You think maybe some of the stuff that you say is things that you remember from dreams that you've had? A. Yes, that is very true. Q. And some of the stuff you would say was because, well, it was an interesting story to tell, right? A. Right. Q. It was more interesting than the truth, right? A. Right. Q. And now here you are, you’re 10 years old. You’ve got two numbers in your, in your age, right? A. Right. Q. So you’re a lot older than you were when you first went to speak to, to Chris Courtis at the OPP place, right? A. Right. Q. Some of the things that you said then we already know those were not true, right? A. Right. Q. Do you think maybe now that really four years have gone by that you might have some trouble remembering what was true and what was not true way back when you were in Grade 1? A. That is right because when I was younger I knew more stuff, but more years have been passed from that time, so I don't really remember everything now. Q. Okay. And some of the – do you think it’s possible that some of the things you remember you remember them differently? A. Yes. Q. So sometimes when time goes by the memories that you have change, don't they? A. They do. Q. I guess it’s unfortunate that so much time has gone by. It makes it – does it make it hard for you to figure out what was true and what was not true then? A. Yes, because like I said, it was a couple of years ago I remember more, like in the past. Like I don’t remember stuff whenever it starts going away. Q. Right. So closer to when these things happened, your memory might have been better; is that fair to say? A. Yes.

L.C.’s Father, T.C.

[26] By November 2014, T.C. had been cohabiting with the accused for about four years. They lived with the accused’s son and daughter from a prior relationship, L.C., and a young daughter fathered by T.C. and borne by the accused.

[27] Work required T.C. be away from home 14 days on and 14 days off. In the period covered by the indictment, November 1, 2014, to November 14, 2014, T.C. was away at a remote work location. He learned of L.C.’s injuries on November 15, 2014. Up until that point, he had been in contact with his family by telephone and by Skype. He testified that both L.C. and the accused’s daughter, the step-daughter, told him about L.C. being bullied at school. He said they showed him a bruise on L.C.’s back and one on the inside of his thigh. He described the bruise on the inside of L.C.’s thigh as big, “4 to 5 inches across.” He testified that the accused and her daughter said that it was from “a kid at school.”

[28] When he learned of his son’s injury he flew to Thunder Bay and met his son at the hospital. His son had a number of injuries including a laceration to his scrotum. T.C. spoke privately to his son, and his son told him that a schoolmate had “grabbed his privates, squeezed, and twisted them.” His son said that another student, L.M., was the one who did that.

[29] When he had last seen his son at home, he noted some bruises to the front of his legs. He said his son was “pretty clumsy” and “banged up his legs quite a bit.”

[30] He also testified that L.C. would injure himself at times. He said that he was told that L.C. had got a pair of scissors and a knife in the night and hurt himself. When he returned home, he spoke to his son about this incident, and his son told him that he had harmed himself with a knife, put nicks on his arms, and used the handle of the knife or scissors to bruise the tops of his feet. He had also cut his hair with the scissors. This incident caused T.C. to put a lock on the door of L.C.’s room.

[31] T.C. also testified that L.C. would pick and scratch at his fingers and ears to the extent that he caused bleeding.

[32] After the Children’s Aid Society became involved, he was told that he would not be able to have L.C. in his care unless he accepted that the accused had caused these injuries to L.C.

L.C.’s Step-Sister

[33] L.C.’s step-sister is the natural daughter of the accused. In November 2014, she resided with her mother and L.C.’s father, T.C. Initially, the step-sister’s father, who is the accused’s ex-husband, was offered as the support person. Counsel for the accused objected to this given that, as described by counsel, there was an acrimonious and protracted custody dispute between the accused and her ex-husband. At my direction, a worker from Child Victim Witness Services acted as a support person.

[34] At the time of trial, L.C.’s step-sister was 11 years old. She was 7 years old at the time of the alleged assault. She testified that she did not get along with L.C. When asked if she ever saw anyone hurt L.C. at home, she said that her mother did. She said that her mother would push L.C. and that this happened four or five times.

[35] She testified that she saw L.C. “play fighting” with other boys at school.

[36] She said that she saw tape on L.C.’s “privates” when she saw L.C. and her mother in the bathroom. She described the tape as black electrical tape. She said that her mother said the tape was because L.C. had “peed” in his bed.

[37] In cross-examination, she said that she saw the tape two weeks before L.C. went to the hospital.

[38] The police also interviewed L.C.’s step-sister, and counsel for the accused cross-examined her about these statements. She told the police that L.C. sometimes took steak knives into his room. The witness did not remember saying that to the police, but she testified that she might have said that. She told the police that she did not see anyone get hit in the home and said that she thought that was true at the time.

[39] She recalled telling the police officer that L.C. was bullied at school, but testified that, while she thought it was bullying at the time, she now knows it was play fighting.

[40] She admitted that her evidence changed from the time of her statement to the police to the preliminary inquiry. She said that she thought that the other boys were injuring L.C. at school, but now realized that it was her mother who was injuring him. She said that she came to this realization a few months after she talked to the police when she was no longer living with her mother. She acknowledged that she did not see her stepmother put any tape on L.C.’s penis. She acknowledged that her mother and father did not get along.

L.C.’s Classmates

The Application

[41] At commencement of trial, counsel for the accused brought an application to have the Crown or the court call three of L.C’s former classmates, L.M., I.B., and T.D., to testify.

[42] In support of that application, counsel for the accused filed the supplementary occurrence report prepared by the OPP dated November 16, 2014, the day after L.C.’s hospitalization. That supplementary occurrence report documented an assault upon L.C. and listed two boys, L.M. and I.B., as the suspects. Counsel also filed the transcript from the preliminary inquiry at which L.M., I.B., and T.D. testified. At the preliminary inquiry, these witnesses were produced by the Crown and made available for cross-examination by counsel for the accused.

[43] Following argument, I made the following ruling:

For reasons to follow, I direct that the Crown shall assist in subpoenaing I.B., L.M., and T.D. as witnesses for this trial. These witnesses are witnesses to be called by the Court to testify at the conclusion of the Crown’s case and before the accused is put to her election to call evidence. As these witnesses testify, they will first be examined in chief by counsel for the accused who may without restriction cross-examine the witnesses on any inconsistencies between their testimony and their testimony at the preliminary inquiry. The Crown will then have the right to cross-examine.

[44] In R. v. Cook, [1997] 1 S.C.R. 113, at para. 63, L’Heureux-Dubé J. acknowledged that it is within the trial judge’s discretion to call witnesses, but that this power “should be exercised in rare cases so as to avoid overly interfering with the adversarial nature of the proceedings.”

[45] In R. v. Hillis, 2016 ONSC 451, 128 W.C.B. (2d) 146, Pomerance J. concluded that the Crown should not omit reliable evidence from its case solely because it might assist the accused.

[46] In this case, the Crown argues that this evidence will not assist the court because the evidence is not reliable. A review of the transcripts indicates that the evidence may be exculpatory.

[47] With respect, in this case, it is the court’s function to assess the reliability of the proposed evidence. Added to this is the economic power imbalance between the legally aided accused and the Crown and the cost to secure the attendance of these witnesses who live hundreds, and in one case, thousands of kilometres away.

[48] Accordingly, I exercised my discretion to have these witnesses called.

[49] The Crown arranged for the attendance of these boys. All three boys testified with support persons and by remote video link from an adjacent courtroom.

[50] All three boys, L.M., I.B., and T.D., were six years old at the time of the alleged assaults and ten years old at the time of trial.

L.M.

[51] At trial, while L.M. denied fighting with L.C., he admitted that, at the preliminary inquiry, he said that he did fight with L.C. At trial, L.M. also denied kicking L.C., but at the preliminary inquiry, testified that he would kick L.C. He admitted that “maybe” he said that at the preliminary inquiry. When asked whether he saw another boy, I.B., kick L.C., he answered, “yeah, but he actually did not.” He then said, “he did, but not in the private parts.”

[52] He also admitted that, at the preliminary inquiry, he said that he would kick L.C. when he was standing up, when he was on the ground, and that he would kick him all over. Similarly, his statement at the preliminary inquiry was that, when he fought with L.C., L.C. would start to get hurt and start crying.

[53] He admitted to counsel for the accused that he now remembered kicking L.C., “probably” on his legs, and that L.C. was on the ground when he kicked him. L.M. testified that he did not kick L.C. in the “privates.”

I.B.

[54] I.B. testified that he did not remember being in grade one with L.C. and that he did not remember coming to testify at the preliminary inquiry. Accordingly, it was necessary to receive as evidence the transcript from the preliminary inquiry.

[55] At the preliminary inquiry, I.B. said that he saw L.M. bully L.C. and kick L.C. in his “privates.” He said that L.M. “sacked” L.C. By that he meant that L.M. had kicked L.C. in “the balls.” He said that happened more than once.

T.D.

[56] T.D. testified that he remembered L.C. being bullied by both L.M. and I.B. He saw them punching and kicking L.C. He clarified that he did not see I.B. kick L.C.

[57] T.D. testified that he saw L.M. kick L.C. in “the privates” twice, “pretty hard,” so that L.C. started crying. He also said that L.M. kicked L.C. on the knee.

The Teachers

The Principal

[58] The principal of the school that L.C. attended in the fall of 2014 testified. She described L.C. as a typical grade one boy, “a little bit of roughhousing … but nothing out of the ordinary.”

[59] She was aware of one incident, which she said occurred in October. L.C. was at school with dried up blood in his ear and under his nose. She talked to L.C., and he said that a dresser had fallen on him.

[60] On November 10, she received a telephone call from the accused. The accused wanted to talk to the principal about bullying. The accused attended with L.C., and the accused told the principal that two students had hurt L.C. the Friday before, November 7. The accused then showed the principal a bruise on L.C.’s back. The principal acknowledged in cross-examination that L.C.’s teacher had reported that L.C. had a significant bruise on his thigh and that he was having difficulty sitting and getting up.

[61] Either on that occasion or a previous one, the accused told the principal about injuries because the accused did not want the Children’s Aid Society to think that she had caused the injuries.

[62] The principal spoke to L.C. later and asked him who had hurt him. His answer was, “I am not sure.” She watched the playground during the recesses to see whether there were any interactions between L.C. and the students the accused had named, but saw nothing of concern. She spoke to the other teachers about the concerns and also assigned a grade seven student to shadow L.C.

[63] The next day, November 11, the accused brought L.C. to school with makeup around his eyes to cover some bruising because she thought it was picture day.

[64] Attendance records confirm that L.C. was not at school on November 6 and 7, and although he did attend on November 10 and 11, he did not attend on November 12, 13, or 14. The principal acknowledged that the accused had called explaining that L.C. had appointments and that he was also upset about bullying.

[65] The principal testified that she did not call the Children’s Aid Society over any concerns about the accused and acknowledged in cross-examination that she did not think “or even suspect” that L.C. was being abused by his stepmother.

The Grade One Teacher

[66] One of L.C.’s grade one teachers testified. She worked half days and started in the morning. Another teacher took over in the afternoon.

[67] She testified that, on November 10, she observed that L.C. appeared to be in pain when he would try to sit or stand. Away from the other children, she asked him if he was okay. He responded that he had bruises on his legs, and he showed her what she described as a dark large bruise on his upper thigh.

The Foster Parents

[68] Initially, L.C. was in the care of two foster parents, a foster father and foster mother, for ten months after his release from hospital and off and on over the last four years. L.C. has been with his father, T.C., for about the last ten months.

[69] The foster father was “kind of shocked” by what he observed of L.C. during the police video interview. The behaviour he observed was not how L.C. usually behaved. The foster parents both testified that L.C. told them about what happened in the past and that they relayed this information to the Children’s Aid Society.

Medical Witnesses

Dr. Brunskill

[70] Dr. Brunskill is a family physician who worked in the emergency department in the community in which L.C. lived. She testified that L.C.’s stepmother brought L.C. to emergency on November 15, 2014. The doctor described injuries which consisted of extensive bruising to his body and a full thickness tear and significant swelling to the scrotum. She testified that the stepmother said that L.C. had been bullied at school and that she had noticed the injury to the scrotum the night before when she was giving L.C. a bath.

[71] Dr. Brunskill arranged blood work and x-rays and consulted a specialist in Thunder Bay with respect to the scrotal injury. The injuries were documented both in the chart and by photographs. Dr. Brunskill described one large bruise on the inner right thigh, about 10 cm from the scrotum, as looking like a boot print. She noted tread marks.

[72] She contacted the local Children’s Aid Society, local police, and arranged for medevac to Thunder Bay.

Dr. Shouldice

[73] Dr. Shouldice is a pediatrician at the Hospital for Sick Children in Toronto working in general pediatrics and in the Suspected Child Abuse and Neglect Program (“SCAN”). On consent, she was qualified as an expert on the assessment of suspected injuries to children.

[74] Dr. Shouldice did not examine or meet with L.C. She reviewed the medical records from the emergency attendance, the records from the hospital in Thunder Bay, photographs taken at both hospitals, and records received from the Children’s Aid Society’s investigation.

[75] She testified that the pediatrician in Thunder Bay recorded that L.C. had told his stepmother that he squeezed his scrotum so that it would not be swollen and that is what caused the tear. The records also stated that the stepmother told the pediatrician that L.C. had come home from school covered in bruises, that L.C. said some boys had kicked him in the thigh, and that the stepmother noticed a large black bruise on the upper inner thigh. The records also reported that the stepmother had brought L.C. to the principal’s office on November 12, 2014.

[76] Dr. Shouldice also reviewed a “Summary of Concerns” provided by the Children’s Aid Society. It appears that the summary was prepared as a result of the Society’s investigation and interviews. The source of information is not given. Some of the information reported is outside the period of time covered by the indictment. Observations include that L.C. appeared at school with dark red patches underneath his eyes and that teachers observed that he had cotton balls taped over his ears, bruising on his head, and scrapes on his shoulders. The explanation provided in the summary was that these injuries resulted from a shelf falling on L.C. The summary also noted that the stepmother reported that, on November 9, L.C. was jumping on the bed with his sister and fell off, which caused bruising to his face. The summary noted that, on November 11, L.C. attended school and, because a teacher observed bruises on L.C’s stomach and cheek, a new referral was made to the society. The Summary of Concerns noted that family members had offered various explanations for the injuries.

[77] Dr. Shouldice reviewed the photographs in detail. She described the usual mechanism of injury in children. In her opinion, based on the number, the extent, the size, and location of these injuries, they were not “typical” of what she would expect from common, accidental events, and this, therefore, raised concerns of “inflicted injury.” She opined that many of the bruises could have resulted from kicks.

[78] With respect to the injuries behind the ears, she thought that it was unlikely that L.C. would have caused these injuries on his own just by scratching.

[79] With respect to the scrotal injury, she was not certain of the specific mechanism that would be required to cause that injury, but stated that this type of injury generally was caused by sudden forceful impact or traction or shearing. She thought that it was extremely unlikely that L.C. could have caused this injury to himself if he squeezed his scrotum. She also thought that tape, tightly adhered and forcibly removed, might account for the skin tear.

[80] In cross-examination, Dr. Shouldice acknowledged that she had no personal experience with and was not aware of any literature that discussed the mechanism for an injury of this nature on the scrotum. She acknowledged that she would defer to a pediatric urologist on causation. She also acknowledged that certain other accidental scenarios could cause the injuries that she observed. She acknowledged that the swelling of the scrotum and the multiple bruises on his leg could result from hard kicks by another six-year-old kicking as hard as he could.

The Law

[81] Every person charged with an offence is presumed to be innocent unless and until the Crown proves guilt beyond a reasonable doubt.

[82] The phrase “beyond reasonable doubt” is a very important part of the criminal justice system. It is not enough for the trier of fact to believe that the accused is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. David Watt J. in Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Thomson Reuters, 2015), at p. 262, describes the reasoning process as follows:

If, at the end of the case, after considering all the evidence, you are sure that [the accused] committed the (an) offence, you should find [the accused] guilty of it, since you would have been satisfied of [the accused’s] guilt of that offence beyond a reasonable doubt.

If, at the end of the case, based on all the evidence or the absence (lack) of evidence, or the credibility of one or more of the witnesses or the reliability of his or her evidence, you are not sure that [the accused] committed the (an) offence, you should find the accused not guilty of it.

[83] In R. v. M. (A.), 2014 ONCA 769, 123 O.R. (3d) 536, at paras. 9, 12, and 13, the Court of Appeal succinctly set out the following principles, which are particularly relevant to this case:

[9] First, every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding and ability to communicate: R. v. W. (R.), [1992] 2 S.C.R. 122, (S.C.C.), at p. 134.

[12] Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.) (1994), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

[13] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.

[84] In R. v. S. (K.), 2017 ONCA 307, 138 W.C.B. (2d) 248, at para. 9, the Ontario Court of Appeal summarized the principles that govern the assessment of evidence given by a child witness noting that a trial judge must use “a common sense approach” to the evidence and must not consider “the complainant’s evidence inherently unreliable on account of [his or] her age.” Despite this common sense approach the evidence is still subject to the same standard of proof as the testimony of an adult witness, namely proof beyond a reasonable doubt: R. v. S. (K.), at para. 10.

Analysis and Disposition

[85] Some aspects of the evidence in this case are very troubling.

[86] The photographs taken at the hospital show bruising all over L.C.’s body. The injury to L.C.’s scrotum is very serious and consistent with considerable violence. I accept Dr. Shouldice’s opinion that these injuries are not “typical” of what would be expected from common, accidental events. If not accidental, the question is who caused these injuries.

[87] I am mindful of L.C.’s age, his step-sister’s age, and the age of his three classmates, both in December 2014 and at the time of trial, and that a common sense approach applies to the assessment of their evidence.

[88] Nevertheless, L.C.’s contradictory statements made during the multiple videotaped interviews, at the preliminary inquiry, and at trial raise serious concerns about the reliability of his testimony. Similarly, some of his accusations raise serious issues with his credibility in the absence of some corroboration. He said that his stepmother told his father that she was going to kill L.C. if L.C. did not move out of the home. L.C. said that his father froze him in ice. He said that his stepmother put him out of the house in deep snow without clothing. He said that his stepmother made him lick up dog “pee” and that she put dog “poo” in his eyes, ears, nose, and mouth in the presence of his step-sister. Initially, he told everyone, including his father when he was alone with him, that one or more of his classmates had caused his injuries. He acknowledged in cross-examination that some of the things might be from dreams that he has had.

[89] His step-sister also told everyone initially that L.C. was bullied at school and that she did not see anyone get hit in the home. She testified, after living with her father for several months, that she realized it was “play fighting” at school and that it was her mother who was injuring L.C. The circumstances of the step-sister’s current relationship with her mother, namely that the step-sister has been caught in the middle of an acrimonious and protracted custody dispute and now lives only with her father, raises the possibility that this change in “realization” may be suspect. The sister did not testify about any incident involving the dogs.

[90] The testimony of the classmates raised the possibility that L.C. could have been injured at school. One boy said that L.C. was “sacked.” Another classmate saw the same boy kick L.C. in the “privates” twice, “pretty hard.” Dr. Shouldice acknowledged that the swelling of the scrotum and the multiple bruises on L.C.’s leg could result from hard kicks by another six-year-old kicking as hard as he could.

[91] At different points in time L.C. said that he tried to “fix” his scrotum by squeezing it and using a fork. He also said at various times that his stepmother tried to “fix” his scrotum with tape or a hair clip. His sister saw tape on L.C.’s “privates.”

[92] I am also concerned by the statements made by the stepmother at school. She alleged an injury on Friday, November 7, 2014, when the records indicate that L.C. was not in school. Her statement to the principal that she wanted to report injuries so that the Children’s Aid Society would not think that she injured L.C. is also very concerning, as is L.C.’s attendance at school with his stepmother with makeup to cover bruising.

[93] Nevertheless, assessing the evidence in this case as a whole, I am not satisfied that the Crown has proven R.N. guilty of these offences beyond a reasonable doubt. Therefore, I find R.N. not guilty on both counts on the indictment.

“Original signed by”

The Hon. Mr. Justice W.D. Newton

Released: October 30, 2018