R. v. E.B., 2019 ONSC 1975

COURT FILE NO.: 18-4622 DATE: 2019-03-28

Publication ban: Any information that could identify the complainant may not be published by reason of an order made under s.486 of the Criminal Code. Contravention of that order is a criminal offence.

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Her Majesty the Queen, Respondent AND: E.B., Appellant

BEFORE: Mr Justice Ramsay

COUNSEL: Henry Limheng for the Respondent Andrew Furgiuele for the Appellant

HEARD: March 28, 2019 at Welland

Endorsement

[1] This is an appeal under s.813 of the Criminal Code from the order of Mr Justice R.C.B. Watson convicting the appellant of sexual assault and sexual interference.

[2] The appellant was charged with sexual assault and sexual interference involving a single incident of sexual contact with her own daughter in which she is said to have put butter on the child’s vagina and licked it off. There was no controversy as to the admissibility of evidence at the trial. The child’s initial disclosure to her father was put into evidence as a principled exception to the hearsay rule. The child’s video-taped statement to the police was admitted under s.715.1 of the Criminal Code when the child adopted it. The child testified to the events in question as well. The Crown also put into evidence a voluntary, videotaped statement by the appellant. The appellant testified in her own defence. In both her statement and her testimony she denied the sexual contact.

[3] The judge did not believe the appellant. After setting out pertinent excerpts from the evidence in detail, he concluded:

I do not accept the evidence of the defendant. She provided some very bizarre answers which are inconsistent with common sense denial. She was at times rambling and provided answers which were unresponsive to simple questions both in the video and in her evidence at trial. She obfuscated and circumlocuted the questions put to her in the video and in cross-examination. She also gave bizarre answers about her daughter not knowing about what she is saying. I do not accept her denial, it is coloured with qualifications and does not carry with it a ring of truth. I do not believe her evidence. …

I am not rejecting the evidence of the defence simply because I have found the complainant’s evidence to be credible and reliable, but rather I am rejecting the defence evidence because it does not have a ring of truth to it, and it was nonsensical, rambling and at times incoherent. The evidence of the defendant did not have a ring of truth to it and it did not make common sense.

[4] The judge found fault with the appellant’s credibility essentially for the following reasons: a. When first confronted with the allegation of sexual assault, she did not give an immediate denial: “A firm and forceful, NO.” b. Her statement to the police was disjointed and almost incoherent. Her statement and evidence were unfocused, rambling and bizarrely unresponsive. Rather than respond to critical areas and allegations she skirted around the issues with nonsensical responses. c. She admitted that the child’s knowledge of the matters she had disclosed points to her.

[5] The judge went on to explain why he believed the Crown’s evidence and why it left him convinced beyond a reasonable doubt of the guilt of the accused.

The grounds of appeal

[6] The appellant says that the judge made the following errors: a. He should not have relied on the appellant’s omission to deny the alleged misconduct clearly in her police interview in assessing her credibility; and b. He misapprehended the appellant’s manner of answering questions.

Use of the appellant’s reaction when first confronted

[7] The police asked the appellant to come in to speak to them about her daughter. She came the next day as asked. Detective Engelen arrested her for sexual assault and sexual interference and booked her without further discussion. The appellant gave an interview about an hour later.

[8] The detective began by introducing himself and informing her of her right to counsel and giving her the caution. The appellant said that she had talked to a lawyer, he told her not to say anything but she wants to talk about it because she wants to get more information.

[9] The detective then gave her the secondary caution, which has to do with anything other police officers might have told her. The appellant mentioned speaking to police when the child’s father restricted access, which would have been some years earlier.

[10] The officer then explained why there were two charges for only one incident. He explained that the second charge has to do with the child’s age, under 16. He said:

Essentially what’s happened here is that [the child’s father] was either bathing or doing something with [the child] and she made some comments that kind of caused him some concern. FACS was notified, I was notified, and I interviewed her. And, um, I don’t have any doubt about the things she’s told me, and that’s why we’re here today.

[11] The appellant said, “But she’s also four years old like, you know that’s the thing.”

ENGELEN: …the other side of it is a four-year-old wouldn’t be exposed to these types of things. DEFENDANT: She already has, which is the problem.

[12] The appellant then went on to tell the detective about another boy in the building, L., with whom the child had pulled down her pants. In this context, she said, “When [the child] gets in trouble, she likes to lie.”

[13] The detective then told the appellant the details of the allegation for the first time:

ENGELEN: … what [the child] has said basically is it was one time and she says that she was sleeping in your bedroom because I suppose she says her bedroom is a big mess. DEFENDANT: Her bedroom is not a big mess. It’s just, well I use it as like a toy room because I love sleeping with my daughter. I, If find it comforting, right? ENGELEN: Which is fine, that’s fine. You can co-sleep. Um, she says she was sleeping with you and says that you put butter onto her vagina, or she calls it a peekia or something or other? DEFENDANT: It’s Serbian. Peekita. ENGELEN: Yeah, yeah. Okay. Yeah, somehow DEFENDANT: That sounds so farfetched, I’m sorry. ENGELEN: And then, she says that you licked it off. DEFENDANT: What? ENGELEN: And then she says that you had told her something along the lines of if R. is gonna like you, this is what you have to let him do or something. And I mean, some of this is DEFENDANT: What? ENGELEN: Well, is R. a little boy in her class? BEDARD: R.’s a little boy in her class that she really likes. ENGELEN: Well the thing is, the thing is little kids, unless they’re kind of exposed to these types of things… DEFENDANT: You sure maybe it might not have been like porn like that sounds really like probably peanut like any type of butter any on down there. ‘Cause I’ve heard Sofia talk about um, okay, Sofia’s talking about peanut butter, not butter…

[14] The video shows that when the appellant said “What?” (in bold letters above for ease of reference), she was wide-eyed as if in surprise or amazement.

[15] Later in the interview, after talking about the appellant’s history of mental health problems, the detective asked if the appellant might have been in some kind of state or something. She said, “No, no.”

DEFENDANT: I don’t think so. To be honest, I think that would be something that would be, I would have to get up; I would have to get butter like I would have to … ENGELEN: Well, I don’t’ think it was butter. I think it was some kind of buttery type substance like maybe, I don’t know, people have lubes and creams and thinks like that. Do you... DEFENDANT: Oh, God.

[16] The interview continued with discussion of lubricants that might have been around, the appellant’s sexual orientation, the consequences of a conviction and other things.

[17] The appellant cites R. v. Levert, 2001 ONCA 8606, [2001] O.J. No. 3907 in which the Court of Appeal warned that the probative value of the accused person’s reaction to the accusation is highly suspect, although not necessarily inadmissible. Also cited by the appellant, and more to the point, is R. v. J.S.W., 2013 ONCA 593 in which the Court of Appeal held that it is an error to discount completely the entire evidence of an accused because he did not immediately and unequivocally deny a vague allegation. In the present case, however, the judge did not make that error. He took into account the reaction of the appellant to a detailed allegation as one factor, albeit an important one, in his decision to dismiss her evidence.

[18] I would not therefore give effect to this ground of appeal.

Misapprehension of the appellant’s reaction and her account

The lack of unequivocal denial

[19] Here I think the appellant has a point. I do not think that it was open to the judge to find that the appellant omitted to give an unequivocal denial upon first being informed of the allegations.

[20] The allegations became specific when the officer mentioned putting butter onto the child’s vagina. A direct answer did not come at that moment because the officer expressed uncertainty about the pronunciation of the Serbian word used by the child. I do not think it remarkable that the first thing the appellant did was to provide it. She then said, “That sounds far-fetched, I’m sorry.” That was an unequivocal denial. It implies that not only did she not do it, it is implausible that anyone would do it. At this point all the appellant knew was that she was supposed to have put butter onto the child’s vagina.

[21] When the officer went on to say, “you licked [the butter] off” the appellant reacted with a wide-eyed “What?” She had the same reaction a second or so later upon being informed about the child’s comment about making R. like her. That was a firm, forceful denial. Furthermore, the appellant had already said that her daughter likes to lie when she is in trouble. And she said it at an appropriate time because the officer had just said, “I don’t have any doubt about the things she told me and that’s why we are here today.” In any event, within two minutes of the wide-eyed “What?” the appellant was asked whether there was any way she could have done this while in some kind of state. She said, “No, no.”

Bizarre, rambling testimony

[22] As was the case with her answer to the secondary caution (paragraph 9, above) and her diversion by the mention of the messy bedroom (paragraph 13), the appellant sometimes missed the point, but her answers to the police and in court were essentially responsive. Much of her evidence did skirt the issues, but that is because her examiners were skirting the issues. When one person says something happened and another says it did not, there is not much for an interrogator or a cross-examiner to do but to approach the issue obliquely in the hope of exposing a weakness.

[23] When the officer talked about R., the appellant talked about R. When he mentioned kids being exposed to this sort of thing she talked about porn, a possible alternate source of exposure. She mentioned peanut butter in this connection to say that the child had mentioned it to her. The appellant agreed that a child should not know about such things at that age. She offered two possible alternate sources of exposure – porn and an older boy in the building. The appellant was not the one who brought up creams and lubricants, a possible automatic state, sleep-walking, Wicca and repressed memory. Her answers on these subjects were not bizarre.

The damning admission

[24] At one point in cross examination the appellant was asked, “…You also sleepwalk and do things you don’t know, right?” She answered, “I know, but none of these involve speech. None of these involve anything that my daughter is speaking that she was never taught. She doesn’t know half of the things that she’s been, she is even saying that is coming out of her mouth.”

[25] Of this, the judge said:

This exchange is damning for the defendant. She acknowledges that the complainant is speaking of things she was never taught and she does not know half of the things that are coming out of her mouth. She is saying the complainant would not know of the nature of the allegations as she was never exposed to them. That is of course unless they happened to the complainant and the complainant is telling the truth. In other words there is no reason for her daughter to make up these allegations unless they were true. She also acknowledges in cross-examination that the details of the allegations are only something that an adult would know.

[26] I do not see how this exchange could be damning of the appellant’s credibility. Essentially, she was commenting on the evidence. She admitted the obvious fact that the child must have been exposed to sexual information but maintained that she herself had not taught it. She fell far short of admitting that there is no reason for her daughter to make up these allegations unless they were true.

Conclusion

[27] I think that the key findings that supported the rejection of the appellant’s testimony were not open to the judge on the evidence. Since his assessment of the appellant’s credibility was crucial to his verdict, a new trial must be ordered.

[28] The convictions are set aside and a new trial is ordered.

J.A. Ramsay J. Date: 2019-03-28