Court File and Parties
COURT FILE NO.: CR-18-50000399-0000
DATE: 20191101
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J.P.
Accused
Counsel: Michael Townsend / Tom Mack, for the Crown Amanda Ross, for the Accused
HEARD: September 13, 2019
BEFORE: B.A. ALLEN J.
REASONS FOR SENTENCE
(Hearing into Findings of Fact for Sentencing)
BACKGROUND
[1] A jury found JP guilty on one charge each of sexual interference and sexual assault on his stepdaughter, NP. The defence requested the sentencing hearing be bifurcated for the court to first determine what facts from the evidence have been proven beyond a reasonable doubt and then to conduct a hearing into the appropriate sentence. It is the defence’s position that the jury’s verdict is ambiguous with respect to the underlying facts that gave rise to the findings of guilt.
[2] NP alleged many hundreds of instances of sexual abuse by JP. The indictment on both counts covers the period from May 1, 2011 to April 16, 2017. The allegations involve such conduct as touching various parts of NP’s body to the more serious allegations of full intercourse. There is no specificity in the indictment as to the accused’s conduct relating to each count. The defence submits that in view of the credibility and reliability problems that characterize NP’s evidence the court should find that none of the allegations of intercourse have been proven beyond a reasonable doubt.
[3] The court, in the defence’s view, has the basis to find that one instance of JP touching NP on the buttocks has been proven beyond a reasonable doubt. The facts connected to that incident, the defence argues, can support both the charge of sexual interference and sexual assault. The defence submits that NP’s evidence has been clearly refuted by the forensic evidence and undermined by the Crown’s main witness, NP’s mother.
THE LAW
[4] Sentencing in jury and non-jury trials is governed by the purpose and principles provided in sections 718 to 718.2 of the Criminal Code. Following a jury verdict, the sentencing judge has the task of deciding from the issues before the court and the jury’s verdict, the facts necessary for sentencing the offender. The Supreme Court of Canada described the task faced by the sentencing judge:
This poses a difficulty in a case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury’s verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand.
[R. v. Ferguson, [2008]1 S.C.R. SCR, at para. 16, (S.C.C.)]
[5] The court set down two governing principles.
[6] First, the sentencing judge’s determination must be bound by the express and implied factual implications of the jury’s verdict. The sentencing judge is required to accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty and must not accept as fact any evidence consistent only with a verdict rejected by the jury.
[7] Second, where the factual implications of the jury’s verdict are ambiguous the sentencing judge should not attempt to follow the logical process of the jury. The judge must come to their own independent determination of the relevant facts. The sentencing judge may find any other relevant fact that was disclosed by evidence at the trial to be proven. To rely upon an aggravating fact the sentencing judge must be convinced of the existence of that fact beyond a reasonable doubt. To rely upon any other relevant fact the sentencing judge must be persuaded on a balance of probabilities: [R. v. Ferguson, at paras. 17 and 18, case citations excluded; and sections 724(2) and 724(3) of the Criminal Code]
[8] The Supreme Court went on to instruct that there should be an inquiry as to what the issues on sentencing are, followed by a finding of such facts as are necessary to deal with those issues: [R. v. Ferguson, at para. 18].
[9] The defence argues that due to the lack of specificity in the indictment as to the conduct related to each count and the myriad of types of conduct underlying the allegations, the jury’s verdict is ambiguous with respect to the facts that led the jury to the findings of guilt on each count.
[10] The following considerations assist the sentencing judge in arriving at factual findings:
(a) The sentencing judge must not attempt to reconstruct the jury’s logical reasoning which recognizes that jurors arrive at a unanimous verdict for different reasons and on different theories of the case.
(b) It is speculative and artificial to attribute a single set of factual findings to the jury unless it is clear that the jury must have unanimously have found those facts.
(c) Where any ambiguity on this exists the trial judge should consider the evidence and arrive at his or her own findings of fact consistent with the evidence and the jury’s findings.
(d) The jury must be given the benefit of the doubt regarding the basis on which an accused was convicted by the jury.
(e) For the purpose of sentencing, in cases involving significant credibility and reliability issues, it is open to the sentencing judge to find the minimum consistent facts consistent with the jury verdict.
(f) The offender is not entitled to the most lenient interpretation of the jury’s verdict.
[R. v. Ferguson, at para. 22; R. v. L.M., 2015 ONSC 2528, at para. 14, (Ont. S.C.J.) and R. v. J.M., [2016] O.J. No. 6819, paras. 8 – 10, (Ont. S.C.J.)]
[11] The appellate decision in the above cited case, R. v. L.M., upheld the trial judge’s decision where the trial judge rejected the complainant’s evidence about incidents of sexual abuse by the accused because of the obvious credibility and reliability issues with the complainant’s evidence that arose in the facts before the jury. The appellate court acknowledged the trial judge’s advantage of observing the witness testify in court: [R. v. M. (L.) 2017 CarswellOnt 365, at paras. 30 and 31, (Ont. C.A.)]
THE DEFENCE’S SUBMISSIONS
[12] As noted above, the defence argues that the case before the court is one where ambiguity exists as to the facts the jury relied on to arrive at its findings of guilt. There are two charges with a multiplicity of different incidents of sexual conduct being alleged over an extended period of time.
[13] NP alleged hundreds of incidents of sexual abuse. NP also particularized several incidents of sexual intercourse which the defence argues are characterized by obvious credibility and reliability problems. In the defence’s view there are internal inconsistencies and inconsistencies with forensic evidence and with the evidence of her mother who was called by the Crown and who was present during some of the alleged incidents.
[14] The defence points out the following problems with NP’s evidence. I accept the defence’s factual depictions of the evidence in relation to the various incidents of sexual abuse that NP reported to the police and testified about in court.
The Mountain Game Incident
[15] This is the first incident that is alleged to have occurred in the fall of 2011 when NP was age 8. In her two statements to the police, both of which she adopted at trial, NP stated that JP had sex with her during the mountain game. This is a game where family members would pile on top of each other on a bed. In-chief at the preliminary inquiry NP maintained the evidence she gave the police. However, in cross-examination at the preliminary inquiry she testified that JP did not have sex with her during that incident. NP did not dispute her preliminary inquiry evidence. At trial she testified she was not sure whether JP had sex with her during the mountain game.
The Condom Incidents
[16] NP’s evidence is that on two occasions in October and November 2016 JP had sex with her while wearing a condom. NP’s evidence is that she was babysitting her siblings while her mother was at swimming lessons before JP arrived home from work. The mother’s evidence contradicts her daughter’s in that her evidence was that her daughter did not begin babysitting until 2017. Before that the mother took all the children including NP to swimming lessons. NP had gone to the police first in April 2017 when her memory about the dates of the condom incidents would reasonably have been fresh in her mind.
[17] There were internal inconsistencies within NP’s evidence about the condom incidents. She gave three different sets of evidence about the first condom incident. In all three versions of the first condom incident JP asked her to get him a pair of his underwear from a drawer.
[18] In the police statement NP stated that she went into the parents’ bedroom and JP came in and she showed him the underwear inside the drawer. JP then pushed her onto the bed and had sex with her. She adopted that statement at trial.
[19] At the preliminary inquiry NP testified that she went into the bedroom. When NP heard JP turn off the stove, she knew she should get out of the bedroom but JP got there before she could leave.
[20] At trial she testified she went to the bedroom and retrieved the underwear and brought them out of the bedroom and showed him the underwear in the hallway. She testified that JP became angry and pushed her onto the bed and assaulted her.
[21] The second condom incident allegedly occurred when NP was babysitting in 2016 when the mother was at swimming lessons which year as noted above was contradicted by the mother’s evidence. NP’s evidence is that JP took her into the closet in his bedroom and lifted her and had sex with her while her small brother was in the room. Her brother knocked on the door and JP stopped sexually assaulting her and allowed her to leave. In her police statement NP stated that JP ejaculated on that occasion. At the preliminary inquiry she testified he did not ejaculate. At the preliminary inquiry NP testified JP removed her clothing and at trial she testified she did not recall who took her clothes off.
Sexual Abuse on Friday, April 14 and Sunday, April 17, 2017[^1]
[22] These incidents as alleged are similar. On April 14th JP is alleged to have come into her bedroom and gotten into bed with her on the lower bunk bed and had sex with her from behind. She said she tried to resist but eventually grew tired and gave up. Her sister was in the bunk above her during the incident and did not wake up.
[23] On April 17th NP awoke and found JP in bed beside her and he started touching her. She told him in a loud voice to go to sleep. He then got out of the bed and locked the bedroom door and got back into the bed. NP tried to push him out of the bed. He said “no” to her. He turned her over onto her stomach. While kneeling on the bed behind her he pulled down her pants and underwear and had sex with her moving his body up and down. He ejaculated and cleaned himself off with dirty clothes.
[24] The sister was in bed above her, her mother was in her bedroom nearby and the grandparents were in the guest bedroom next to NP’s bedroom during those incidents. The evidence is that during the encounters there were loud words between them, the grandparents slept with their bedroom door open and the mother was often awakenened in the night by the sister coming into the parents’ bedroom.
[25] In the defence’s view, there are other problems with NP’s evidence about the April 17th incident.
[26] The forensic evidence belies NP’s evidence. NP’s bedsheets had not been washed since April 17th and in forensic testing on April 19th the sheets tested negative for semen. The police were interested in the clothes NP was wearing that night for evidentiary reasons and she did not turn her clothing over to the police. Although the police asked NP to contact them if she had further evidence, she never contacted them about her clothes.
Incidents of Unspecified Sexual Abuse
[27] NP alleges JP sexually abused her hundreds of times over a period of six years. This included touching her on the buttocks, breasts and other parts of her body. NP testified JP sexually abused her in the bunk bed at the Riverview home and at the home on Ennerdale at least weekly. At the Ennerdale home the family slept together in the parents’ bed when the other bedroom was cold. With the parents, NP and one of the siblings slept in the bed and another sibling slept in a crib next to the bed. The mother woke up often to breast feed one child and to attend to the other child who had an asthma condition.
[28] NP alleges she slept beside JP and he would have sex with her from behind while he was lying beside the mother. He would pull down her pants and sometimes ejaculate. Her evidence was that the mother slept through all of these hundreds of incidents. NP testified the family slept together for about three years. The mother’s contradictory evidence was that they slept together for no longer than two or three months until they moved to their new apartment.
[29] NP testified that at the Riverview home JP sexually assaulted her weekly, about 150 times, in a bed she shared with her sister and also sexually assaulted her in the bunk bed NP shared with her sister. NP testified that her mother and other family members were at home during those incidents. The step-grandparents slept in the guest bedroom next door to NP’s bedroom for two years and kept the door open at night.
Sexual Abuse in the Mornings
[30] NP also testified JP would sexually abuse her in the mornings when she would have to wake up to help JP get ready for work. The allegation is that he would sexually abuse her in the bed where the sister slept next to her. The mother’s evidence contradicted this evidence. She testified that she would always be up at 5:00 a.m. each morning getting breakfast and lunch prepared. She never heard anything from NP’s room when JP would go in to wake her up.
JP Pushing NP off the Bed Incident
[31] NP alleges that on one occasion the mother walked into her bedroom while JP was in her bed sexually assaulting her. NP’s evidence is that to try to hide what he was doing, he pushed NP off the bed. The mother contradicted NP’s evidence saying the incident did not happen.
Sexual Abuse Related to Hair Brought to the Police
[32] In November 2017 the police called NP in for a second interview. She told the police JP had sexually assaulted her on another occasion while her mother was at swimming lessons and she found one of his hairs. She told the police she was saving the hair since before the first interview in April 2017 but she just never mentioned it before. NP stated she was aware the hair could be evidence to support her allegations of sexual assault. NP did not bring up the incident in examination-in-chief or cross-examination at trial. She said she did not recall the incident.
[33] At trial NP said she did not recall that she told the police that it was while in the bedroom that she found the hair on her inner thigh. She did not recall that she told the police that JP did not succeed in having sex with her on that occasion. Contrary to this, at the preliminary inquiry NP testified in cross-examination that she found the hair while she was in the bathroom and that JP had succeeded in having sex with her. NP admitted the evidence at the preliminary inquiry contradicted her statement to the police.
The Incident Disclosed First at Trial
[34] In-chief at trial NP did not mention the further incident. She did not disclose the additional incident until cross-examination. She testified at trial that incident occurred while her mother was at swimming lessons.
[35] NP alleged that JP jumped on her bed and lay on the bed beside her and began touching her and trying to have sex with her. NP alleged that during that assault the landline rang and the Caller Id indicated it was the mother calling. According to NP, JP allowed her to speak to her mother while he was assaulting her. The mother indicated she was downstairs and asked about whether preparations for dinner had been made. It was NP’s evidence that in spite of the mother being on the phone and being on her way to the apartment JP continued with the assault.
The Mother’s Evidence
[36] The Crown called the mother as a witness. Her evidence was unchallenged. I was in a position to observe the mother’s demeanour on the witness stand. She testified in an even-handed and clear fashion. It did not appear that she gave evidence weighted in any way more favourable to her daughter or her husband. It seemed more the case that the mother came to court and testified to the best of her ability about her knowledge in relation to NP’s allegations. She appeared as an intelligent and believable witness.
Motive to Fabricate
[37] The defence submits the evidence before the jury contains facts that demonstrate NP has a motive to fabricate her accounts of sexual abuse. NP testified that in her early teens before she went to the police she was getting into trouble with her mother and JP for using her Ipad and cellphone to communicate on social media sites with friends and strangers. She would at times be on her device late at night in bed. Her parents would bar NP from using her devices for periods of time. NP’s evidence is that JP was stricter than the mother about denying her the use of her devices. As well, the parents also did not like NP associating with one of her friends because they did not approve of that friend.
[38] NP indicated she was aware if she complained to the police about JP sexually abusing her that he would be removed from the house and she could do what she wanted. The mother testified that after JP was removed NP changed and became more independent and felt she could do what she wanted.
[39] The defence argues that the credibility and reliability problems with NP’s evidence were too fundamental and extensive for them to be attributable to the memory issues recognized in relation to child victims of sexual abuse where child witnesses often lack memory of some of the details of their abuse.
THE CROWN’S SUBMISSIONS
[40] The Crown did not differ with the defence on the law and basic facts about the alleged incidents of sexual abuse. However, the Crown takes the position that the factual implications of the jury’s verdict are not ambiguous. In the Crown’s view the facts are implicit in the verdicts returned and for that reason the sentencing court is not required to engage its own determination of the facts.
[41] In making its argument the Crown looked to the manner in which the trial was conducted, the closing submissions of counsel and the charge to the jury, to demonstrate that implicit in the verdicts is the jury’s total acceptance of NP’s evidence on the sexual abuse.
[42] The Crown points to the defence’s argument where, in reference to various areas of NP’s evidence, she told the jury that because of the multiple credibility problems in NP’s evidence they should believe none of NP’s evidence. The defence did not put to the jury that they could accept some, none or all of NP’s evidence.
[43] The defence, as the Crown pointed out, also submitted to the jury that the judge would instruct the jury that they could accept all, some or none of NP’s evidence, which I did throughout my charge. I find however that there was nothing improper about the defence, based on its view of the evidence, telling the jury they cannot rely on any of NP’s evidence. That is a view of the evidence open to the defence. In any event, I also instructed the jury that they are required to take instructions on the law and legal principles from me, not the lawyers.
[44] The Crown looked to the charge to the jury where I instructed that evidence of any intentional lie could taint the rest of a witness’s evidence. The Crown submits that from that instruction and the guilty verdicts returned it can be inferred that the jury accepted NP’s evidence in its entirety. I find that submission by the Crown to be tantamount to asking the court to engage in the forbidden exercise reconstructing the jury’s logical reasoning.
CONCLUSION
[45] In the circumstances I agree with the defence that the factual implications of the jury’s verdict are ambiguous.
[46] There are two counts on the indictment that relate to offences that occurred during the same approximate six-year time period. NP alleges numerous incidents of sexual abuse occurred during that period which involved different types of abuse from touching various parts of her body to full intercourse. NP only provided specific details on about seven of the incidents. There is no specificity in the indictment as to the incidents being charged on either count. This I find renders the jury’s verdict ambiguous with respect to the facts that led it to find guilt on each count.
[47] I am therefore required to come to my own independent determination of the relevant facts. The allegations that JP engaged in multiple incidents of sexual intercourse with her are aggravating facts to consider. The law requires that I be convinced of aggravating facts beyond a reasonable doubt.
[48] I find the evidence shows that JP’s evidence on the particularized incidents of sexual abuse involving intercourse are replete with internal inconsistencies, inconsistencies with the mother’s evidence and the forensic evidence and is in many areas simply implausible.
[49] NP gave inconsistent accounts as between her statements to the police and her evidence at the preliminary inquiry about the sexual intercourse incidents. The fact that those incidents are alleged to have occurred at times when other persons including the mother, sister and grandparents were in close proximity in the home and the fact that the mother testified NP was not home alone with the younger children after school as NP alleged raises serious credibility, reliability and plausibility problems for NP.
[50] The unspecified incidents are incredibly numerous, hundreds of incidents of sexual abuse at both the Ennerdale and Riverview apartments both in the bed and bunk bed shared with the sister and in the parents’ bed while JP slept beside the mother. The implausibility and incredibility of that evidence is obvious.
[51] This is clearly a case with substantial credibility and reliability problems for NP. It is therefore, for the purpose of sentencing, open to me to find the minimum consistent facts consistent with the jury verdict. NP testified that some incidents involved JP touching her buttocks. I accept the defence’s submission that there is the factual basis to find that one incident of JP touching her buttocks has been proven beyond a reasonable doubt and that those facts can support the charge of sexual interference and sexual assault.
DISPOSITION
[52] I will consider one incident of JP touching NP’s buttocks in sentencing JP.
B.A. ALLEN J.
Released: November 1, 2019
COURT FILE NO.: CR-18-50000399-0000
DATE: 20191101
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
J.P.
Accused
REASONS FOR SENTENCE
(Hearing into Findings of Fact for Sentencing
B.A. Allen J.
Released: November 1, 2019
[^1]: According to the 2017 calendar, the Sunday after Friday April 14th would be April 16th.