minicounsel

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

CITATION: R. v. L.L., 2019 ONSC 3295

COURT FILE NO.: CR-17-65

DATE: 2019/05/29

BETWEEN:

HER MAJESTY THE QUEEN

– and –

L.L.

Michael Purcell, for the Crown

Michelle O’Doherty, Counsel for the Accused

HEARD: October 2, 3, 4, 5, 9, 10, 11, 2018

And March 18, 19, 20, 22, 2019

REASONS FOR JUDGMENT

leroy, j.

Introduction

1LL is charged with sexual offences, threatening and breach of trust against his stepdaughter spanning a period of eight years. The complainant, CD, born October 15, 1995 (now 23) alleges this misconduct began when she was eleven (October 2006) and concluded in July 2014 when she was approaching the age of nineteen years.

2The sexual acts alleged include sexual intercourse, fellatio, cunnilingus and fondling.

3CD alleges as well that, beginning in 2009, when CD was 14, LL started asking her to display her breasts, vaginal area or buttocks and to let him touch her body in return for lunch money or rides into town.

Background

4JD, the complainant’s mother, and LL were together as a couple for fifteen years. They had one child together, CL now 16. They met in 2000, married in 2002 and separated on May 14, 2015 when JD confronted LL about information she had from the complainant that LL had engaged in an adulterous relationship with JD’s younger sister. JD said that CD disclosed the allegations of sexual abuse and the relationship between her sister and LL on May 12, 2015

5JD has two children with SD namely AD, now 24 and the complainant, CD. They separated when CD was two. From the date of separation in 1997 until 2003, the parents resided in Aylmer and shared parenting of their children. When LL and JD moved to Campbell Bay in 2003 the shared parenting model was frustrated.

6In the years following except for three intervals, CD resided primarily with JD. CD remained with her father through 2003 and 2004. LL and JD moved to Finch Ontario with CD when CD was 10/11. CD said she went to school in Cornwall for grade 5 when they resided in Finch/Newington. CD returned to live with her father for grade 6 – age 11/12. LL and JD moved from Finch to St. Isidore, ON in 2007 and CD returned to live with her mother for grade 7 - age 12/13. CD remained with this family through the next two moves in residence – a move within St. Isidore, and to Luskville. CD moved back with her father during the grade 11(secondaire 5) school year when LL and JD moved to Quyon, Quebec in 2013. Residence in that community necessitated either a school change or an unacceptably long school bus ride to and from school. By moving to her father’s home, CD remained in the same school with an acceptable bus ride.

7The detailed chronicling of their peripatetic lifestyle is not an issue. Exhibit 1 is a document composed by CD depicting her recall of where and when she resided between her 10th and 17th years. The defence position is that this document illustrates the first example of how CD was good on detail and assurance of the reliability of her recall until confronted with internal or extrinsic inconsistency. On direct, CD declared its accuracy with certainty. On cross-examination, CD cited a flashback when confronted with testimony from the preliminary enquiry inconsistent with Exhibit 1 and agreed to an error within the exhibit.

8JD had two disabled sisters. One was in her care and a constant member of the household. The other resided with JD’s mother and visited the JD/LL home monthly to provide respite for JD’s mother.

9CD and JD testified that when CD resided with her father, CD visited her mother every weekend and when CD resided with her mother, she visited her father every second weekend. CD’s father was excused from transporting the children as it was JD who moved from Aylmer, thereby creating the access distance and it was LL who drove CD back and forth for access three-quarters of the time.

10JD described a traditional household. When she was home, she looked after the household. She shopped once per week. She talked of work and her attention to the children’s and her sisters’ needs such as medical appointments and weekly shopping; otherwise, she was home because there were no other reasons to leave.

11When she was working, LL was working and she would not be home after school. When she was not working through the winter, she was generally home when the children returned from school. JD said that she and LL shared household duties.

12LL and JD earned their livelihood sealing and paving driveways door to door. Driveway sealing is a two person job. They owned two trucks each equipped with sealing equipment so they operated independently. JD recalls they generally relied on casual labour to fill their staffing complement. She said LL asked CD to work with him as last resort when she was available during summer school vacation and after school in the spring and fall. LL ploughed snow in the winter months. That too, was two person work.

13JD described twelve hour work days during the summer. She was tired at the end of day so there was little society. She would go to bingo with LL on rain days. She said LL worked long days and they needed him to work when the weather was good, often late into the evening.

14CD said that beginning when she was eleven, she and LL engaged in sexual intercourse every time they were alone in his truck for access travel, sealing and snow removal.

15CD said she worked with LL on average 2 days per week in July and August and on average 4 days per month during the school year. JD testified that CD worked with LL upwards of 5 days per week. JD suggested that if CD said an average of two days per week, she meant two days during a rain week. JD testified that CD did not work with LL in snow ploughing season. JD recalls that she worked with LL in the winter months.

The complainant’s narrative

16LL first abused CD while they resided in Finch. CD asserted vivid recall. CD was 11 in grade 5. She was alone with LL in his truck en route home from an access visit with her father. She recalls summer as the time of year as there was no snow. CD said this incident took place before she began helping with the sealing business.

17LL stopped to obtain marijuana from a source in Embrun. LL drove one road over from the source down from the Jean Coutu and stopped on the roadside after the end of the pavement. LL offered to share the marijuana with CD and asked CD if she wanted to suck him. CD said she knew what he wanted and was shocked. When CD declined he offered the sum of $50. CD said she declined again making the point that she intended to work for her money. LL circled the truck, instructed her to lie on the passenger floor, feet and legs protruding, LL removed CD’s pants and applied his lips to her vagina for three minutes; LL lowered his pants and inserted his penis in her vagina for three to five minutes. LL touched CD’s stomach and thighs and said “good”. LL was vigilant for oncoming vehicles. He ejaculated on the ground. He was not wearing a condom. This was the first time and she felt “shocked, disgusted and angry.” LL returned to the driver side of the vehicle, gave money to CD and threatened that if CD told her mother LL would kill CD. CD said nothing and dressed. She estimated the time lapse from stop to departure at ten to fifteen minutes.

18In her statement to police when she was nineteen, CD recalled this first incident happened when she was 12/13 and residing in the first St. Isidore home when she would have been in grade 7. Until the day before cross examination, CD thought she was 12 when this happened. She did not recall her address at the time because they moved around so much. She did not recall how the day unfolded. At trial, she was sure they were residing in Finch for this incident.

19JD recalled that CD began assisting LL with sealing when CD was twelve or thirteen when they were residing in the first St. Isidore house.

20In preliminary hearing testimony, CD said first that this first incident was during a work day, then she was unsure whether it was a work day or whether they were en route from an access visit in Aylmer and then after consideration concluded, this incident occurred en route from an access visit. She depicted this incident as two incidents separated in time by two weeks. The incident of sexual intercourse was separated from the date he asked her to fellate him. The first incident involved a request for fellatio for $50. CD declined, nothing more happened and they drove home. Two weeks later after LL bought the marijuana they had sexual intercourse.

21CD agreed she had been back and forth. She told the Gatineau police there were two separate incidents. She told the OPP there was one incident. She testified to two separate incidents during the preliminary hearing, to one incident on direct and two on cross-examination.

22CD agreed she did not disclose that LL placed his lips on her vagina in written or oral statements or during the two-day preliminary hearing and it was on direct examination that she first disclosed this. CD could not say when this memory formed.

23CD said they returned to the same site twice while she was 11. She said that while she resided in Ontario, LL always returned to the same site for sexual activity with her.

24CD recounted a second incident when she was 11. This time, LL bought condoms at the Jean Coutu saying he did not want to get her pregnant because if that happened JD would find out. She said LL may have worn a condom ten times over the eight years. During preliminary hearing testimony, CD suggested LL used a condom maybe two or three times. CD did not recall why they were there; whether it was work or access related. He asked her if she would engage in sexual relations with him for $100. She said no and he gave her $100. The intercourse lasted three to five minutes and LL ejaculated on her stomach. He discarded the condom on the ground.

25CD associated sexual intercourse in the truck with work and access travel. She said they engaged in sexual activity including cunnilingus and sexual intercourse two or three times per week.

26CD said that when she resided with her father in Aylmer for grade 6 and when her mother’s family moved to Luskville P.Q. when she was 15 or 16, LL stopped for sexual intercourse, fellatio and fondling on Perry Road, near Aylmer on the way to and from access.

27CD estimated 468 incidents of sexual intercourse in the truck.

Fellatio

28At trial, CD was initially unable to estimate the number of times she fellated LL or to recount specific incidents but that he asked her often. On cross-examination, CD agreed to an estimate of five incidents of fellatio between her 15th and 17th years. CD noted that LL is not circumcised and his body odour was awful.

29She recalled one incident in July 2014 on Perry Street and another at the site in Embrun when her mother resided in St. Isidore. She recalled that LL ejaculated to oral stimulation and within fifteen minutes was able to engage in sexual intercourse with her for another three minutes before he ejaculated a second time. At trial, CD acknowledged no memory of this incident save for having read the preliminary enquiry transcript the preceding day.

Child Protection

30JD recounted an experience with child protection in 2010 when workers disclosed allegations against LL of sexually abusing CD. LL denied but JD did not categorically accept his word. She balanced his denial with the knowledge that LL was roundly disliked in the community and vulnerable to false complaint. She took the complaints seriously and became vigilant. She organized her life to restrict opportunity for LL and CD being alone together. She never did detect cause for concern.

31On redirect examination, JD said she was comforted when the CAS closed its file with only the meeting but that between 2010 and date of separation JD restricted opportunity by taking CD with her or ensuring the presence of another adult in the home when she went out. She said there may have been 2 or 3 times in those 3 years when LL was alone with CD. She noted that after CD turned 16 and obtained her licence to drive, she drove back and forth for visits.

Sexual intercourse in the house

32CD recounted an incident of sexual intercourse in the kitchen of the Luskville house when she was fifteen during the school year.

33On direct, CD described two metal chairs placed front to front she mounted on her hands and knees, how LL penetrated her vagina with his penis and ejaculated on her back. She denied discussion or offer of compensation for this event.

34CD was inconsistent about the proposed compensation. In the statement to Gatineau Police, she did not recall the proposed payment, then she recalled he offered some payment and increased the offer to $500.00. During testimony in the preliminary hearing, she said he offered the sum of $100, she countered with $500 and LL offered $1,000. On cross-examination at trial, CD declared no memory of the amount offered.

35CD recalled one chair in the statement to Gatineau Police. At trial, she was certain there were two chairs.

36CD recalled digital penetration prior to penile penetration during testimony at the preliminary hearing. At trial, she denied that recollection.

37CD formed a new memory of sexual intercourse in her bedroom in Luskville during the trial. She recalled no more than that LL inserted his penis in her vagina and after 2 – 3 minutes ejaculated on her stomach, that it was early morning, her mother was out and her brother was asleep.

38CD recounted an incident in the living room of the Luskville house in 2010 when CD was fifteen, home alone with LL either on a PD day or a sick day watching television. She said LL approached, dropped to his knees, removed her pants and kissed her vaginal area for five to seven minutes

39CD recounted sexual intercourse with LL in the basement of the 2nd residence in St. Isidore on average 2 -3 times per week. CD denied recall of specifics. The time of day would correspond to whether it was a school day or not. If a school day this would take place after school. If not a school day then this would take place during the day but not in the morning. CD offered that they were alone in the house when this happened. CD’s younger brother was seldom home when this happened and JD was never home.

40CD suggested that her mother was pre-occupied with the aunts’ medical needs and appointments, the implication being mom was seldom home. JD confirmed she was primarily responsible for family medical appointments but her depiction did not confirm the opportunity framed by CD.

41CD depicted how LL invariably instigated, how he sometimes asked whether she was interested in sexual intercourse and how other times he touched her and pulled her pants down. In the early years, LL placed his lips on her vagina, fondled digitally and then penetrated with his penis. He ejaculated every time usually on her stomach after two to three minutes.

42CD concurred with a conservative estimate of 106 incidents of sexual intercourse in the home.

43CD said that LL paid her money for this and other times offered credit. CD said she maintained an account on her phone for what he owed her and that it stands at $1,600. She did not produce the phone and denied demand for payment.

Morning assaults

44CD said that LL assaulted her on a daily basis in the second St. Isidore house when she was fourteen and the Luskville house that followed as part of morning ritual. His practice was to awaken CD for school, remove her under pants, perform cunnilingus and or fondle her vaginal area, legs and stomach and digitally penetrate her vagina. She said her mother was asleep or away from the home with the aunt. She asserted approximately 375 such assaults.

45JD confirmed that LL was primarily – three quarters of the time - responsible for getting the household mornings started. He called to the children to get up and when that failed he went to their rooms.

46JD was on alert through this time period as it followed the child protection interview and did not discern cause for concern.

47JD hedged over her morning schedule, raising concern she tailored her testimony to support CD’s version. On direct, JD said categorically that she left her bed, whether she was sleeping in the same room with LL, the couch or in CL’s bed, workdays or not between 6:30 a.m. and 7:00 a.m. LL generally arose before she did. She recalled that CD would arise in response to LL’s verbal overture but might occasionally return to bed. She heard LL moving around the houses doing his things. When his verbal entreaty to get CD out of bed for school failed, LL turned to JD with words to the effect that you can get your daughter out of bed.

48That context contradicted CD. On cross-examination, JD changed her position and said that sometimes she slept in and sometimes she was up between 6:30 a.m. and 7:00 a.m. I accept that what JD said on direct examination was truthful and the back track was not.

Fondling on the couch in the second St. Isidore home and the Luskville home

49On cross-examination, CD said LL fondled and digitally penetrated her vagina when she watched television in the living room. She denied cunnilingus. This happened upwards of three times per week when her mother was out of the home. CD reported times when her mother was home and LL grabbed her buttocks. She said LL is sneaky and every time he discerned a chance at sexual gratification he acted on it. CD agreed with an estimate of 390 such assaults.

Requests for display of intimate body parts as quid pro quo for rides or lunch money

50CD described a routine beginning in the second St. Isidore residence when CD was fourteen in 2009/10 arising from situations when CD needed lunch money or a ride into town from LL. She said LL would ask CD to display her breasts and vagina as consideration. CD said she did as he asked because she needed the lunch money or the ride into town.

51CD did not disclose this aspect of the abuse to police. The first mention of showing an intimate part of her body for lunch money was made at the preliminary hearing and the quid pro quo for the $5 was a look.

52The first mention of quid pro quo for a ride into town was elicited on direct at trial.

53On cross-examination, CD offered that in addition to asking for a display of part of her body, he asked to touch her. She added that in Luskville, he asked her to kiss him. This transpired one to two times per week in both Luskville and St. Isidore 2nd suggesting it carried on until CD moved in with her father in 2013/14.

54The request for a touch or kiss aspect was not disclosed to police, in preliminary testimony or on direct at trial.

55CD recalled that LL asked for this exchange in the range of 182 times.

56JD said she often heard the dialogue between LL and CD about lunch money, drives into town or to DM’s house. She never heard LL ask to see CD’s breasts or vagina and if she had, she would have intervened.

Bathtub incident

57CD said on direct, there were times in the second St. Isidore home when LL entered the bathroom while CD was having a bath. When CD covered LL said “show me show me”. On cross-examination, CD said this happened one time, that this was not mentioned to any one before testimony on direct because CD did not have memory of it until the day of trial.

The last sexual event – July 8, 2014 – CD age 18

58The Lefebvre family moved to Quyon in March 2013. CD was 17 and chose to return to residence with her father rather than change schools.

59CD recalled three incidents of sexual intercourse on Perry Road in Gatineau with LL between July 2013 – age 17 and July 2014 – 18.

60For context, CD said she began dating a boyfriend on July 10, 2013. CD was residing with her father in Aylmer. LL called July 8, 2014 and asked CD to work with him that day. She said the date stands out in memory because of the approaching first year anniversary of the relationship with the boyfriend. LL picked her up at 9:00 a.m. They were hired for a sealing job and finished around 2:00 p.m. LL paid CD $10.00 per hour for her work. They departed the work site and drove to Perry Road a distance of 10 – 15 minutes. When LL stopped on the side of the road he asked if she wanted to perform fellatio, CD declined and LL offered $50. CD declined and asked for more compensation. LL went to the passenger side, CD got on the passenger floor, LL removed her clothing and engaged in sexual intercourse for three minutes before ejaculating on CD’s stomach. They dressed and LL handed CD the sum of $100 and said “nice doing business.” LL drove CD home.

Disclosure

61CD said that LL warned of dire consequences should she disclose after the first incident, saying that if she disclosed, he would kill her. This resonated with CD because she understood LL had been incarcerated and she experienced LL’s temper when she intervened to protect her brother from LL’s discipline.

62Thereafter, she said LL planted fear of how her mother would react. CD said she harboured suicidal thoughts but denied overt attempt because her mother had experienced family suicide and CD knew how painful it would be for her mother.

63CD said she determined to disclose after her aunt (the one she said LL favoured), advised CD to attend confession to obtain absolution for her behaviour.

64JD initially denied knowledge of any particulars of CD’s allegations. She denied knowing that CD said LL would awaken and touch her in the morning. JD was confronted with her handwritten statement to police where she wrote that CD disclosed how LL wakened CD by touching her genitalia.

LL’s statement – admitted voluntary

65When Detective Cholette contacted LL about this matter in May 2015, LL had been charged for the same offences in Quebec. At the time that process was at the preliminary hearing stage.

66Detective Cholette advised LL of the purpose of the contact. LL said – “She is 19 not 10/I was sleeping with aunt/wife’s sister/She was trying to get $4,000 from me”. Detective Cholette agreed his notes were less than perfect but had LL denied, it would have been noted.

67LL did not testify at trial.

Issues

68The central issue in this case is a factual one; that is, whether the Crown has proved that the acts alleged occurred. This turns on whether the evidence as a whole proved the credibility and reliability of the evidence given by the complainant beyond a reasonable doubt.

69The evidentiary assessment issues are:

Whether having regard to the whole of the evidence the inconsistencies in the complainant’s narrative from telling to telling relate to peripheral matters of the complaint – for example time, location, antecedents to the events, the sequence and calculation of the number of events and other matters not lying at the center of the memory that would not be expected to register with a child victim or whether cumulative inconsistencies/incongruities are of such significance as to raise a reasonable doubt about the reliability and veracity of the complainant’s evidence;
The inherent reasonableness and consistency of CD’s narrative with other evidence;
The implications of the content of LL’s voluntary statement to police;
Circumstances that raise concern for collusion and fabrication.

The Governing Principles

70The presumption of innocence and the standard of proof beyond a reasonable doubt apply in a sexual assault case as in any other criminal trial. However, there are aspects of sexual assault cases that can make the application of the standard a difficult one.

71The nature of the act underlying sexual assault is such that there are seldom eye-witnesses apart from the complainant and the person accused of the offence. Often, these cases come down to the word of one person against the other. In that situation, it is wrong for the trial judge to decide the case based on which is the more credible version of the two. To do so would misapply the burden of proof on the Crown to establish guilt beyond a reasonable doubt.

72That burden remains on the Crown so that the accused person is not required to prove his innocence, or disprove any of the evidence led by the Crown. So if the trier believes the accused person’s evidence or any other exculpatory evidence to that effect, or if not confident about accepting the Crown’s version of events, acquittal is required.

73Even if the trier completely rejects the accused person’s evidence, it is an error to assume the Crown’s version must be true; rather there must be a careful assessment of the evidence that is believed to decide whether that evidence persuades beyond reasonable doubt that the accused is guilty.

Context for the assessment of the credibility of the complainant

74The Ontario Court of Appeal in R. v. A.M., 2014 ONCA 769 summarized the appropriate approach to the evaluation of complainant credibility as follows:

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.

No inflexible rules mandate when a witness’ evidence should be evaluated according to “adult” or “child” standards. An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children’s evidence: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 134.

75Generally, where an adult testifies about events he or she allege occurred when he/she was a child, credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time, location, sequence and calculation of the number of events and other things that do not lie at the center of the memory, should be considered in the context of age at the time the events about which she is testifying occurred as they may not be a good barometer of plausibility or implausibility of the complaint: W. (R.), at p. 134. See also, R. v. Kendall, 1962 CanLII 7 (SCC), [1962] S.C.R. 469.

76That said, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness says at trial and what he/she said on other occasions, whether or not under oath: R. v. G. (M.) (1994), 1994 CanLII 8733 (ON CA), 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, 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.

77It is important to contextualize inconsistencies as they vary in nature and importance. Some are minor, others are not.

78While minor inconsistencies may not diminish the credibility of a witness unduly, when a series of inconsistencies accumulate, the cumulative effect may cause the trier of fact to have a reasonable doubt about the reliability of the witness's evidence. There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least the trier of fact should look to the totality of the inconsistencies in order to assess whether the witness's evidence is reliable. This is particularly so when there is no supporting evidence on the central issues.

79Where inconsistencies involve something material about which an honest witness is unlikely to be mistaken, they may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.

Delay in reporting and absence of avoidant behaviour

80There is no rule about how people who are victims of trauma like a sexual assault will behave. There is no normal way to react to sexual assault. Some will make an immediate complaint, some will delay in disclosing, while some will never disclose. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant – R. v. D.D., 2000 SCC 43 para. 65.

81As with delayed complaint, a failure to demonstrate avoidant behaviour or a change in behaviour “must not be the subject of any presumptive adverse inference based upon rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse”: D(D) at para 63 –

Motive to Fabricate

82The existence or absence of reason to make a false allegation is a factor which triers of fact, using common sense, will and should consider in assessing a witness' credibility. What must be avoided is any suggestion the accused has an onus to demonstrate that a complainant had a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means there was no motive or, finally, that the absence of an apparent motive to fabricate conclusively establishes that a witness is telling the truth – R. v. Batte 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321,[2000] O.J. No. 2184.

Collusion

83Collusion can arise from a deliberate agreement to concoct evidence as well as from communication among witnesses that can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events in order that their testimony would seem more convincing.

LL’s statement to Detective Cholette

84The defence acknowledged voluntariness and the Crown acknowledged that the statement LL gave to Detective Cholette was admissible for the truth of the content. The issue is weight and what LL was actually communicating with his words.

85The defence assertion is that the statement is exculpatory and reflects LL’s spontaneous reaction when first confronted with the allegations as in res gestae. Here the first reaction value is discounted by the fact LL was already immersed in Quebec criminal proceedings in relation to the same issues.

86I am satisfied the statement was made and the officer’s notes captured the main thrust. While the assertions regarding collusion and secondary gain require consideration the acknowledgement of a sexual encounter after CD attained the age of eighteen years is strong circumstantial corroborative evidence supporting the inference of the truck routine CD alleges.

Corroboration

87Corroboration of a complainant’s testimony is not required for a judge to find that a criminal offence has been committed – s. 274 C.C.C. That said, in determining the credibility and reliability of a witness’s evidence, corroborating evidence may be of assistance in allowing a trier to have confidence about whether an event has occurred or not.

88Mr. Purcell dedicated a portion of submissions to evidence of opportunity, bad character and consistent reliable recall of home configurations the Crown argues corroborates CD’s narrative.

89Corroborative evidence is circumstantial, in support of inductive reasoning. Inductive reasoning is used to support a conclusion rather than to prove or demonstrate it and can be assessed as relatively strong or weak depending on how much their premises increase the probability of the conclusion.

90Circumstantial evidence is not to be evaluated piece by piece but rather cumulatively. With circumstantial evidence based on reasoning or inference-drawing through probability a trier-of-fact's application of logic, common sense and experience to the evidence engages consideration of both inherent probabilities and inherent improbabilities and, not infrequently, eliminating the unlikelihood of coincidence: (R. v. Arp (1998), 1998 CanLII 769 (SCC), 129 C.C.C. (3d) 321 (S.C.C.), at para. 64),

91Here, there is no issue as regards opportunity in the truck. The evidence is that CD travelled to and from access visits often alone with LL. She worked alone with LL. Not so much for living circumstances. There were times when LL was alone with CD in the home but not to the extent asserted. In any event lack of opportunity is more problematic for the Crown than opportunity is for defence.

92That CD was able to describe the configurations of the pertinent homes, that there was room for two tables in the Luskville kitchen, that LL’s hygiene was often offensive or that LL smoked marijuana in the truck and basement does not increase the probability that CD’s narrative is true.

93Both CD and JD mentioned LL’s poor hygiene and unmitigated bad body odour. His body odour would be apparent to any occupant of the truck or the same room in a house. It is equally consistent with guilt and innocence.

The inconsistencies internal and extrinsic/Inherent reasonableness/Corroboration

94My task is to assess whether the noted inconsistencies and incongruities are peripheral to the central memory or whether individually or collectively they erode confidence in the reliability and credibility of CD’s narrative to the point of raising reasonable doubt.

Exhibit one

95On direct examination when CD correlated her age with municipality of residence and school grade (Exhibit 1), she was certain of its accuracy. When confronted on cross-examination with evidence from the preliminary hearing about where she went to school for grade 9 (Casselman), CD cited a flashback to rationalize the need to change the exhibit.

96The defence argues that the time lines or grade level is not the issue; rather it is how it came out. CD did not express uncertainty in the original draft until confronted with evidence that refuted its accuracy. If CD is to be assessed as an adult then the way the information comes out counts. If CD was uncertain she, as an adult, is expected to say so.

97The Crown position is that this is a deficit in recollection peripheral to the central issue and unsurprising. Children are known to have difficulty with sequencing events.

98I agree that the complainant’s error – where she lived for the year she attended grade 9 – is a peripheral matter that can be resolved as mistake about time and place about something long past.

99I also recognize the point that CD testified as an adult and is expected to declare confusion or uncertainty about peripheral details rather than defective certainty.

First assault

100CD was inconsistent about context and events surrounding the first assault. She said she remembers the incident vividly. In 2015, when CD was nineteen, CD recounted the incident to the Gatineau Police as two events separated in time by two weeks. She said the same during the preliminary hearing. She told the police in two statements that she was age twelve/thirteen residing in St. Isidore – grade 7. When she remembered that she lived with her father when she was twelve, she ventured that she may have been thirteen living in St. Isidore. She said that was her belief until the day before trial. She described it as one event to the OPP and on direct trial examination. At trial, she was certain they were living in Finch and her age was eleven for this incident. She was certain that this was one continuous incident until challenged on cross-examination when she remembered it as two incidents separated by two weeks. CD asserted certainty before the challenge on cross examination and confusion after.

101The Crown position is that the discrepancy about her age, residence and school grade at the time is minor and peripheral to the center of her memory.

102The defence position is that CD was nineteen when she spoke to police and where she was living when this first event is said to have occurred is a material matter about which an honest witness is unlikely to be mistaken. Where a child resides and attends school is something an eleven or thirteen year old would be alert to and remembered when she was nineteen.

103The defence argue as well that CD was inconsistent about the incident itself. CD offered after having her memory refreshed on cross-examination that she was going to say something to correct the mistake in her testimony at trial but did not. She said that she was confused only after the discrepancy was presented to her. By the time CD acknowledged the error it was too late. Notwithstanding her assertion of vivid recall, the way the testimony rolled out suggests otherwise.

104CD first disclosed that LL placed his mouth against her vaginal during this event as prelude to penile intercourse on direct examination at trial. This was not disclosed in statements to police or during preliminary hearing testimony. CD was unable to say when this memory developed. In testimony during the preliminary hearing, CD depicted digital penetration of her vagina as prelude to penile penetration. She denied recall of this aspect at trial.

105The Crown argues this is a naturally occurring phenomenon. Memory of suppressed details are uncovered when a victim thinks and talks about the abuse.

106The defence suggests that the added report involving cunnilingus preceding sexual intercourse was a gratuitous offering to redirect the narrative away from the other inconsistencies noted in cross-examination.

107These inconsistencies detract from confidence in CD’s reliability and credibility. Whether LL digitally penetrated CD or kissed her vaginal area as prelude to intercourse is not the issue; rather there has to be concern about the substitution of significant aspects of the assaults alleged.

108That said, CD is unsophisticated. It is arguable that the only vivid recollection important to her is the juxtaposition of sexual assault by her stepfather..

Quid Pro Quo

109The allegations regarding the quid pro quo for lunch money and rides into town evolved from telling to telling. The allegation is that this behaviour spanned three years and two houses. These allegations were not disclosed to police; rather, CD mentioned requests for display of her breasts or vagina in return for lunch money the first time on cross examination during the preliminary hearing. CD claimed to have disclosed to police in her statement until she was confronted with the statement where this is not disclosed. The first mention of such requests in return for rides into town and of requests for a touch were on direct examination at trial. In cross examination at trial, CD added “one time he tried to kiss me.” CD estimated that this manner of exchange was acted out 182 times.

110The Crown position is that CD did not recall this aspect of LL’s misconduct when she disclosed to police and disclosed when she remembered it.

111The defence position is this is an example of evolving narrative.

112Further, the chances of these propositions going unnoticed is highly improbable. JD said that after the interview with child protection in 2010, she was vigilant about exposing CD to LL in situations where he would have opportunity to sexually abuse CD and there were two or three times in the period after 2010 when CD and LL were alone with one another. JD said she overheard exchanges between LL and CD as prelude to a drive or lunch money and did not hear what CD alleges. As noted, JD was vigilant after 2010 and had she heard something suspicious would have intruded.

113The allegations in respect to the requests for looks or touches in return for lunch money or rides into town are incongruous with the other allegations against LL. CD alleges there were in the range of 468 incidents of non-consensual sexual intercourse in the truck plus another 106 in a home, 375 morning assaults, 390 incidents of fondling and digital penetration on a couch over eight years. It begs the question why LL would bother asking for a visual, a touch or kiss in such circumstances.

Luskville Kitchen

114In her description of the event in the Luskville house kitchen, age 15, at trial CD described how she supported herself on two chairs. In the statement to Gatineau Police CD described how she supported herself on one chair. CD reported digital penetration before penile penetration during preliminary hearing testimony. That aspect was omitted in trial direct examination.

115CD’s recounting of the compensation negotiation in relation to this incident was inconsistent. In the statement to police, CD said initially she did not recall the amount LL offered. She then recalled that LL offered some payment and increased it to $500.00. In testimony during the preliminary hearing, CD recalled that LL initially offered the sum of $100.00, she countered with $500.00 and he gratuitously offered $1,000. On cross-examination, CD declared no memory of the compensation discussion.

116The defence argues that: the progression from one to two chairs is suggestive of evolving memory, the dialogue about compensation is incongruous.

117The chair or chairs is a memory detail peripheral to memory center. The issue again is whether as an adult witness CD ought to have said her memory about the number of chairs is unclear. That CD neglected to refer to digital penetration at trial is an inconsistency from telling to telling about a pernicious aspect of the assault in the same category as the inconsistencies in relation to the first incident alleged, namely that the only vivid recollection could be the juxtaposition of the sexual assault with their relational circumstances. The confusion over compensation could be forgetfulness about a peripheral detail or there was nothing to remember.

Luskville Bedroom

118CD formed a new memory of sexual intercourse in her bedroom in the Luskville house during the trial immediately after the discussion about the kitchen incident. She recalls no more than that LL inserted his penis in her vagina and ejaculated on her stomach after three minutes, that it was early morning, her mother was out and her brother was asleep.

119The Crown offered this new evidence as an example of how CD was candid and open.

120The defence noted that this new memory directly contradicts her statement to police when she denied sexual intercourse in a bed in the Luskville house.

121JD confirmed that it was LL’s responsibility to get the children up and out in the morning and that she arose between 6:30 a.m. and 7:00 a.m. JD’s depiction refutes the suggestion that JD might be gone from the house that early.

122It is a new memory formed years after the experience. I do not know if it is real or not.

Fellatio/Condom

123CD testified to five incidents of fellatio during preliminary hearing testimony. At trial, CD in direct examination said there were many instances of fellatio but that she did not have recall of any particular one. On cross-examination, CD agreed to five such incidents and was able to recall two of them.

124In the course of recounting one incident, CD attributed improbable sexual fortitude to LL. CD described an incident involving fellatio and sexual intercourse wherein LL ejaculated to oral stimulus and was, within fifteen minutes, able to engage in sexual intercourse with her for three minutes before ejaculating a second time.

125It may be that CD conflated two assaults. It may be that this incident is simply untrue.

126The cogency of the condom incident is suspect. The context attributed to LL relative to concern for pregnancy and discovery whether he used a condom two or ten times was incredible having regard to the number of times CD said he engaged in unprotected sexual congress.

Bathtub incident

127The bathtub incident was not disclosed to police or to the preliminary hearing because CD did not have memory of it until the day of trial.

128The Crown offered this new evidence as an example of how CD was candid and open.

129CD initially embellished her stated recall reporting bathroom intrusion in the plural. The event is not peripheral. The expanded narrative is a factor in assessing CD’s sincerity/credibility. It is a new memory. I do not know if it is real or not.

JD

130JD confirmed that CD travelled with LL to and from access visits and CD worked with him in the sealing business.

131JD’s evidence tended to contradict CD on matters of opportunity within the home.

132After the meeting with the CAS in 2010, JD said there were three times in the ensuing three years before CD moved back with her father that CD and LL were alone together. Although JD overheard discussion regarding rides or lunch money she did not overhear the type of dialogue involving the alleged quid pro quo.

133JD recalls that CD worked with LL five days per week. That contradicts her testimony regarding their reliance on community casual labour and reliance on CD as last resort. CD recalls working with LL on average two days per week in the summer and four days per month in the winter.

134The discrepancies over the work week do not derogate from a finding of fact of ample opportunity.

135JD did not validate CD’s perception that JD was absent from the home so often that LL could abuse CD at will with impunity. JD said LL worked long hours. When they were not working JD and LL went to Bingo. Otherwise JD was a homebody. She said the work was hard and she had little energy for society.

136JD confirmed that morning routine in their home was busy, that LL was up first, she could hear him going about his business, he verbally instructed CD and CL to get up, both were reluctant risers and LL would enter their rooms to reinforce the instruction but that he passed the task of getting CD up for the bus to JD when CD did not respond to his entreaties. In the context of the implications as regards CD’s veracity about the daily morning assaults, JD changed her testimony between direct and cross-examination

137I conclude that LL’s window of opportunity to fondle, digitally penetrate and perform cunnilingus in the home was a small one if it existed at all. After the child protection meeting when JD was on alert, the window closed.

The value of LL’s statement to police

138Detective Cholette said he tried to stop LL from expressing his response until they could meet. The statement is partially exculpatory. The recording presented by Detective Cholette did not include a denial of guilt; rather an alternate narrative, namely that CD was of age when he had consensual intercourse with her, that CD was trying to extort the sum of $4,000 from him and these allegations are retributive for adultery with JD’s younger sister.

139The fact that LL had been charged in Quebec and that process was at the preliminary hearing stage denudes the value of the statement as spontaneous response.

140These circumstances are such that very little weight can be attached to the statement evidence of an alternate narrative.

141That said, the statement is evidence in the trial and it corroborates CD’s recounting of a final incident of transactional sexual intercourse and routine transactional sexual engagement.

Collusion

142There is motive to collude and fabricate. LL sundered the marriage with JD by carrying on the long term extramarital affair with JD’s sister. This would not be the first time false accusation derived from retributive motivation.

143JD denied knowing of the allegations of the morning ritual of sexual touching attributed to LL by CD until confronted with her cursive statement to police. I am not confident that an honest witness would be mistaken about the substance of what she had been told.

144CD said that JD was either away from the home or asleep when LL committed the morning assaults. JD did not corroborate CD. Her depiction of morning routine minimized opportunity. JD’s decision to change her depiction of morning routine was too convenient to be mere coincidence and erodes confidence in the integrity/reliability of the main allegations and is concerning.

145Although both deny it CD and DM had opportunity to concoct the quid pro quo evidence. They are close friends and it is curious coincidence that this evidence arose after the police reporting.

146Although cross-examined on this topic, the witnesses were unshaken in the denial they colluded with respect to the allegations.

147I conclude that the discrepancies in recollection of pertinent events between JD and CD contraindicated a conclusion of intentional or accidental collusion. JD likely tailored her evidence to support CD’s narrative but she is unaware of the central components of CD’s narrative.

Conclusion

148As noted, little weight can be attached to the “exculpatory” aspect of the statement. It is hearsay with issues of reporting accuracy and its spontaneity is of questionable provenance. Further, the admission of sexual intercourse with CD in her 19th year corroborates an unhealthy attraction and disregard for barriers. The substance and provenance of the statement is insufficient to raise reasonable doubt.

149The focus turns to an assessment of the Crown evidence as a whole and whether it is persuasive beyond reasonable doubt. The defence in this case is that the inconsistencies on important central matters, CD’s testimonial deficiencies and concern for collusion demonstrate a carelessness with the truth about which the trier of fact should be concerned.

150CD is an adult testifying about events she says happened in her childhood. She is to be assessed as an adult witness recognizing that minor peripheral matters as time, place and antecedent are not central to the memory and that the measure of uncertainty and inconsistency in recollection on these details may not be a good barometer of plausibility or implausibility of the complaint.

151The inconsistencies involving the chronology of places of residence, schools and CD’s age for the first incident in the truck do not reflect on her central memories. I don’t think that a pubescent female who is being sexually targeted by her stepfather would focus on age, time of year, school grade at the time, whether the incident happened during access travel or as part of the workday, whether there was one or two chairs, the details of transaction negotiation, or even variations in sexual order preliminary to sexual intercourse

152CD’s new memories formed after disclosure to police, during the preliminary hearing and during the trial raise concerns about the reliability and credibility of their provenance. These may be instances of recovered memory of events that happened, honest false memory or conjured in the moment.

153As trier, I can accept some, none or all of a witnesses’ testimony. I am not persuaded to the legal standard of CD’s allegations regarding the quid pro quo, the daily morning assaults, the new memories formed at trial and rampant sexual assault in the home.

154JD’s evidence regarding their busy mornings suggests that what CD alleges about the daily morning assaults is improbable. There may be truth to the allegation but in the circumstances I do not find those assaults were proven.

155JD said that following CAS intervention in 2010, she monitored vigilantly and, to her knowledge, LL and CD were alone over the next three years three times. She overheard the dialogue between CD and LL involving rides into town and lunch money that CD says began in 2010. JD listened and heard none of the 182 requests. The quid pro quo allegations are not proven beyond reasonable doubt.

156JD’s evidence did not validate CD’s suggestion that she and LL were home alone on a daily basis. JD said that when she was working, so was LL; that LL worked long days when the weather was good. JD said that when she was not working, she was, aside from everyday household chores, a homebody. JD denied the opportunity CD framed by assertion of JD’s absence from the home. There wasn’t the extent of risk-free opportunity CD portrayed.

157There is a core of consistency to portions of the complainant’s narrative – she was consistent about sexual misconduct in the truck, the flagrant exploitation of opportunity and the locations.

158That said, the fact that there was never a hint of detection in the moment over eight years is a factor. I am mindful that the nature of this misconduct usually means there are seldom eye-witnesses apart from the complainant and the accused; however, it is difficult to conceive of how LL evaded random detection.

159CD reported in excess of thirteen hundred incidents of sexual abuse, in the truck on the side of public roads in daylight, in a living room and basement recreation area serving as access to her aunt’s bedroom, in the kitchen and her own bedroom.

160If what is alleged is true, LL was exposed to random passers-by on the roadway and chance detection in the home particularly after the meeting with child protection. The constant groping at every opportunity is something third parties notice and would attract attention and comment. No one noticed.

161I accept that CD unconsciously aggrandized the number of sexual interactions over the years if not the fact of such interactions. She said LL was relentless, exploiting every opportunity presented. Children view the world differently than adults. That is her perception she says was formed as a young child exposed to what she thought was sexual hegemony.

162The inconsistencies interchanging digital penetration and cunnilingus as prelude to intercourse involved in the morning assaults, the Luskville incident alleged, the new memories of sexual intercourse at trial, the evolving quid pro quo narrations and incongruities of opportunity cannot be resolved on the basis that CD is remembering events from when she was a child, the passage of time or her level of sophistication and the manner in which she was able to communicate her evidence. My conclusions and uncertainty logically raise issues about the stand alone reliability and credibility of this portion of her evidence that was shown to be unreliable.

163That said, the admission of sexual intercourse in CD’s nineteenth year in my view substantially rehabilitates such concerns for reliance on CD’s assertions about previous transactional sexual activity in the truck on the side of the road on the passenger side floor. As unlikely as it is that LL and CD would even have the conversation, let alone sexual intercourse if there was not an earlier routine is persuasive circumstantial corroborative evidence of an earlier routine.

164That this was the first such incident is implausible. But for a routine of sexual engagement for pay, this one-off incident is inconceivable.

165It would mean:

i. they converted a safe life-long parent child relationship on its head in a moment’s whim,

ii. that CD would consent let alone consider sexual intercourse with her step-father with whom she had safely resided and travelled hundreds of times to and from work, access and town on a whim,

iii. from her perspective she had the wits to negotiate about consideration for sexual favour in circumstances that would have been astonishing and traumatizing, and

iv. CD was about to celebrate her 1st anniversary with her boyfriend. This is the last thing she would tolerate as a first time occurrence.

173Notwithstanding my conclusions regarding the other allegations relative to the criminal standard of proof as noted, it does not mean the evidence is untrue. The burden of proof on the Crown is closer to certainty than a balance of probabilities. LL is presumed innocent. For the reasons stated, I am not sure whether LL committed the criminal acts attributed to him other than those reported in the truck.

174I accept as true CD’s central memories of LL sexually abusing CD in the truck before she turned sixteen. I accept that the sexual abuse in the truck involved fellatio, cunnilingus and sexual intercourse and that one time, LL threatened CD’s life were she to disclose.

174For these reasons, the accused is convicted of offences under ss. 151,152, 153, and 264.1(1)(a).

The Honourable Mr. Justice Rick Leroy

Released: May 29, 2019