WARNING
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
COURT FILE NO.: CR-16-02
DATE: 2019/11/15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
C. H.
Elaine Evans, Counsel for the Crown
Solomon Friedman, Counsel for the Accused
HEARD: September 25, 26 and 28, 2017 November 29, 2017; April 26, 2018; May 7, 2018; July 22, 23 and 24, 2019; October 8, 10 and 11, 2019
REASONS FOR JUDGMENT
leroy, j.
Introduction
[1] DA disclosed that his uncle CH, sexually abused him over weekends for two years. The issue is whether the Crown has proven the charges before the Court beyond reasonable doubt and that involves review of the credibility and reliability of the complainant’s reporting.
[2] There were three witnesses for the Crown, namely the complainant, DA, his mother AA and family friend, FH – herein Primo. The defence did not call evidence.
DA Background
[3] DA is fifteen in grade ten having been born on June 19, 2004. He has one sibling born in September 2010 when DA was six.
[4] When the trial began in September 2017 DA was very young. He was thirteen when he first testified.
[5] DA formed close extended family relations with maternal Aunt V and her spouse, CH. For the two years or so after the sibling’s birth, DA stayed with them weekends from Friday after school to Monday’s return to school.
[6] There was either an eight or twenty-month hiatus in that practice before disclosure. At trial, DA said the weekend routine ended coincident with the sibling’s third birthday in September 2013. In the statement to police he said the routine ended when the sibling turned two. His mother said this routine ended coincident with the sibling’s second birthday in September 2012. The only time DA visited the H home after the weekend routine ended was with family.
[7] During preliminary hearing testimony, DA said visits to the H home after the routine ended were rare and limited to special occasions and there was no sexual abuse after that. He told the IO and V that the abuse was continuous through to the date of the statement – June 26, 2014. He told his Uncle D the abuse continued through to two or three months before DA’s tenth birthday.
[8] DA’s final trial position was that he does not recall when the abuse ended but what he told D and the IO had to be true.
[9] DA’s mother resides in Ottawa. In June 2014, the A household included DA’s mother, AA, step-father, EH, the family friend, FH, aka “Primo”, his maternal grandmother FC, DA and the sibling.
[10] The H family resided in North Dundas. During the material time, the H household consisted of D, DA’s maternal grandfather, V and CH. D’s bedroom was in the basement. There were three bedrooms on the main floor. M, a disabled aunt, resided with Community Living through the week and with this family on weekends. DA recalled that D worked Monday to Friday at an embassy in Ottawa. M did not work as she was disabled. V is a personal support worker with flexible hours that included weekend obligations.
The impugned sexual behaviour
[11] DA said their sexual activity was enacted in the H bedroom when he and CH were alone in the home.
[12] DA said he and the accused were home alone for parts of every weekend he was there. In general, DA connected time home alone to V’s work-related absence. His memory is that D was M’s primary care-giver and they were active outside the home on weekends. DA added a detail at trial never reported in earlier disclosure when he said that M disturbed them in the act of fellatio one time.
[13] He said they waited for V to leave as their cue for sexual activity. It ended when they heard the garage door open, signifying V’s return. He said the individual incidents of fellatio carried on for about six minutes.
[14] DA has little or no recollection of a first sexual interaction. He depicted the scene two ways. DA said that CH either asked DA to close his eyes and open his mouth or that CH wrapped a sock as blindfold over DA’s eyes preliminary to inserting CH’s penis in DA’s mouth. DA said he expected candy, but CH inserted his penis instead.
[15] DA included the blindfold in the narrative when he disclosed to Primo, to AA, during preliminary hearing testimony and trial. He said that CH asked DA to close his eyes and open his mouth as prelude to the first incident to V and the IO.
[16] At trial, after confirming his commitment to the truth of the content of the police interview conducted June 24, 2014, DA said he barely remembers what happened with respect to the first incident.
[17] This activity was re-enacted many times, involved mutual fellatio and CH fellated DA many times.
[18] DA said that he and CH watched pornography together. He said it was during this activity three years subsequent when CH referenced the sock as blindfold for their first sexual experience. The detail regarding this discussion was mentioned for the first time during the preliminary hearing. At that time, DA did not recall when that discussion took place. DA acknowledged no independent recall of the blindfold detail. He confirmed that the only basis he has for knowing the abuse began when he was six and that CH had blindfolded DA was that CH told him.
[19] DA said CH had interest in anal activity. He said CH asked if he could do it. DA described it to his mother and the IO as “putting his thing in my back.” CH accepted DA’s refusal.
[20] DA said:
i. CH asked DA to penetrate CH’s anus.
ii. CH persuaded DA to lick chocolate syrup CH applied to his own intergluteal cleft.
iii. CH asked for permission to insert a purple sex toy in DA’s anus.
iv. Once following ejaculation, CH scooped ejaculate and persuaded DA to taste it.
[21] DA said he believes CH chronicled their sexual activities ten times on CH’s cell phone, but has never seen the recording. In preliminary hearing testimony, DA said the lights were almost always on in the room, but his trial evidence was that the lights were off and blinds drawn so the area lit up when the camera flashed.
[22] A search of CH’s cell phone after arrest did not reveal pornographic material.
The disclosure track
Pornography
[23] DA said he was introduced to pornography by way of pornographic web-sites by a contemporary before his sixth birthday. He recalls his step-father caught him watching shortly after and reported to DA’s mother. AA recalled the event if not the details. Although DA was inconsistent between the preliminary hearing and trial as to the timing of his mother’s reaction, DA recognized her distress, the implications regarding prospects for future use of a computer and the effect on his mother’s trust. He promised to abstain in the future. He did not.
[24] At trial, DA denied memory of what he observed on these sites before the abuse began. At the preliminary hearing, he acknowledged having experienced the audio/visual of heterosexual sex, fellatio and ejaculation before he began visiting the H home on weekends.
[25] DA’s grandfather, D caught DA watching pornography in the H bedroom. DA noted that both V and CH instructed him to stay out of their bedroom without permission and CH instructed him to refrain from reprise.
The Pivotal Encounter
[26] DA recalled that after the household was down for the night either just before or after his tenth birthday in June 2014, he was in his bedroom watching pornography. He said Primo entered the room and caught sight of the visual before DA could exit the site. Primo said he noticed a history of access to pornographic sites on his computer over a period of time and traced it to DA. He delayed confrontation until he established appropriate approach. He decided on the night in question to confront DA in DA’s bedroom. This was not an easy subject for either. They decided to conduct at least parts of the discussion in written form.
[27] Regardless of aetiology, DA recognized his jeopardy, the need for damage control and desperately wanted the encounter to end.
[28] DA said he felt really sad at the time because he did not relish the implications. DA knew from his mother’s reaction when EH discovered this activity that if this was disseminated, he was in a lot of trouble and he did not want to face it. He promised to stop right then and implored Primo “Please don’t show this (the written record of their conversation) to anyone…Ok can you hide this paper?”
[29] DA tried to lie his way out of the predicament. He initially asserted a three-year hiatus in the practice. That was untrue. Primo did not believe DA. Primo knew from his investigations that DA had been accessing pornographic sites on his computer over a period of time.
[30] When Primo asked how many web sites DA patronized DA said two. That answer was untrue. Primo knew from the search history this was untrue and wrote – “Don’t lie to me”. DA conceded the point and segued into shifting responsibility to CH. He wrote: “Don’t tell anyone but Tio (uncle) showed me some of the websites.”
[31] It is natural for concerned adult close family members to push on with the enquiry. Primo asked three suggestive questions, all answered in the affirmative:
i. Did CH ever touch you;
ii. Do you touch him or he touch you;
iii. Did he put his penis in your back.
[32] The issue with these questions is it could be Primo was prescient and the responses truthful; or the questions came to DA as diversionary life line.
[33] DA did not mention to Primo that he thought CH intended to give him candy when his eyes were covered for the first incident.
[34] Primo told DA that CH was abusing DA. That was a new word to DA who adopted it for future recounting.
[35] Through this encounter DA’s purpose was never distracted from damage control, closing the dialogue and somehow re-directing the blame for the pornography habit. DA closed the dialogue with “I can’t take this anymore. He was the one to get those videos in my head.”
Ensuing Recounting
[36] DA recounted to his mother, Uncle D, Aunt V and to the IO.
[37] His mother recorded her discussion of June 21, 2014 with DA. DA said, “he blindfolded me and told me to open my mouth, I opened my mouth and that is when he put his privates in my mouth.” A offered that DA would think he was to receive a lollipop. DA said “Yeah, I told him I like candies…One day he put his private part to my back.”
[38] V recorded a subsequent discussion with DA. DA said he told me to close my eyes and open my mouth – I thought it was candies or something – instead he put his penis in. This activity continued until now. DA responded affirmatively when V asked if he ever put his penis in your rectum where you poo. “I told him it hurt too much, and I did not want to do it and we never did it again.”
[39] DA denied the conversation with V during the preliminary hearing. He said he understood this to be an unproveable confidential discussion. He persisted with the version wherein the last time he saw V was at his home when the police were there. She was wearing street clothes and was sobbing. DA said his memory on this issue was vivid. He did not have a subsequent conversation with V. He did the same at trial until confronted with the audio recording and transcript. On cross-examination, DA acknowledged deliberately choosing to deny the fact of this conversation.
Police Statement
[40] DA provided a video statement to police five days later on June 26, 2014. It was admitted for the truth of the content. DA reported that the last visit to V’s home had been two months ahead of the statement date.
[41] DA told the officer that when he was six years of age, CH instructed DA to go to CH’s bedroom, lie down, close his eyes and open his mouth. He said he thought CH was going to give DA candies; instead CH put his private thing in DA’s mouth. The two were home alone. DA said he liked it and they did this every day. He said “one day CH put his penis in my back. I told him it hurt and to stop and he did.” This happened once although CH enquired many times. DA declined so they reverted to fellatio. This happened every day until now; that is June 26, 2014.
[42] As noted, although DA denies recall, he chose the blind fold depiction as the correct one.
[43] DA was graphic in the recounting of his recall to the IO. The fellating activity carried on for six minutes until CH ejaculated never in DA’s mouth, although one time, CH scooped the ejaculate and offered it to DA. DA reported to the IO that the lights were off in the bedroom during these incidents. During the preliminary hearing, DA reported that CH turned the lights in the bedroom off for the chocolate incident; otherwise the lights were on. DA reported that CH touched DA’s penis with his hand and mouth alternating by the minute. Once, they removed their clothing and mutually fellated one another for ten or eleven minutes. They stopped for fear of discovery. DA reported that CH instructed DA to get chocolate mix which CH applied to his Intergluteal Cleft. DA reported that CH offered to insert the sex toy into DA’s anus.
[44] DA said he knew CH used his I-Phone to record DA performing fellatio on ten occasions because of the bright light from the phone and because CH told him what he was doing.
[45] DA reported how he learned of the pornographic web sites from a contemporary and from CH when they watched pornography together on the Acer laptop. He said CH showed DA video footage on his phone of sexual activity between CH and V. DA denied actual recognition of the parties depicted; rather that information was provided by CH.
[46] As the interview came to conclusion, DA said he thought he might like to cry because CH may not love him in the future. The Crown cited this, assuming truth of the narrative, as circumstantial evidence of balanced perspective without agenda. It could be but without the assumption of truth-telling the concern for relationship breakdown is more poignant and stark if this is a story to evade consequences relative to repeated porn watching infractions.
AA and Primo
[47] Both bring parental care, love and concern for DA’s well-being. Both believe DA’s claims.
[48] Primo misled the Court when he said he and FC may have communicated fifteen times between the time Primo returned to Canada and when he testified. In fact, there were in the range of five hundred messenger communications copied from his phone some with reference to unrecorded telephone communications between them and between Primo and DA.
[49] DA testified to having no contact with Primo after the end of their written dialogue. Primo said that in 2018, F and DA told him the defence theory was to shift responsibility for the abuse to Primo.
[50] AA understood that someone was targeting Primo as the culprit in this. She did not think that was right and deliberately tailored her pre-trial narrative to deflect the investigation and court deliberation away from Primo as suspect.
[51] Although those testimonial issues are more digression than substance, it does raise sincerity or credibility issues at large. Deliberate tailoring of testimony for secondary purport is inherently cause for pause. They were arguably the two most important adults in DA’s life. It is of concern that both exhibited disregard for truth telling.
General Instructions
[52] CH is presumed innocent unless and until Crown counsel proves guilt beyond a reasonable doubt. CH does not have to prove he is innocent of the charges.
[53] A reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is doubt that logically arises from the evidence or lack of evidence. It is not enough to believe CH is probably guilty. Proof of probable or likely guilt is not proof of guilt beyond reasonable doubt.
[54] The general principles animating the W.(D.) framework must be respected in any case where there is evidence adduced that can raise a reasonable doubt on a matter the Crown is attempting to prove beyond reasonable doubt. If based on the evidence as a whole or the lack of evidence or the credibility of one or more of the witnesses or the reliability of his or her evidence, I am not sure beyond reasonable doubt that CH committed an offence, he must be acquitted of that offence.
Context for the assessment of the credibility/reliability of the complainant
[55] In assessing the evidence of witnesses, the Court must carefully, and with an open mind consider all of the evidence and circumstances. It must decide how much or little to believe and rely upon the evidence adduced. The Court may believe some, none or all of a witness’s evidence. This assessment is an exercise in common sense. There is no magic or scientific formula, or crystal ball to assist the Court.
[56] Testimony has credibility problems if a witness intentionally offers in whole or in part, false, exaggerated or minimized information. Credibility addresses whether a witness is lying. Reliability factors in honest mistakes. Evidence has reliability problems if an honest witness inadvertently offers inaccurate information. Learning that a witness has intentionally lied about something is more likely to promote the rejection of their evidence as a whole than a finding the witness was mistaken in some of what they offered.
[57] It is uncommon to receive direct evidence of incredibility or unreliability. Most helpful data will be circumstantial. Often such data can be ambiguous in the sense that evidence may not be accurate without making clear whether the witness is trying to mislead the court.
[58] The trier of fact assesses the harmony of the narrative with the preponderance of probability. This involves a consideration of factors including the plausibility of evidence having regard to experience and common sense and inherent probabilities/improbabilities, inconsistencies within a witness’ evidence, how a witness’ version of events fits with other evidence in the case, the weight of testimony pointing in a particular direction, motive to fabricate and witness demeanour.
[59] 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.
[60] Consistent telling doesn’t make a version true. It is inconsistency that raises issues.
[61] Inconsistencies vary in nature and importance. Some are minor, others are not. Witnesses are not video recorders and will not be consistent about peripheral events. As noted, a deliberate lie is always serious and may taint all of a witness’ evidence. Where there is an inconsistency about a key fact, the trier will be unable to accept the witness’s testimony about this fact unless there is a rational basis for preferring the in-court version to the prior inconsistent account. Where 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: R. v. G. (M.) 1994 (ONCA).
[62] While 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. The trier of fact should look to the totality of the inconsistencies in order to assess whether the witness's evidence is reliable.
[63] Explanations offered for inconsistencies are considered in assessing the impact of prior inconsistent statements on credibility and reliability.
Delay in reporting and absence of avoidant behaviour
[64] There 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 or assault in general - R. v. D.D. 2000 SCC 43, [2000] S.C.J. No 44.
Corroboration
[65] Corroboration of a complainant’s testimony is not required for a judge to find that a sexual assault has been committed – s. 274 and 659 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 occurred or not.
Context for the assessment of the credibility of this complainant
[66] The 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 - R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 134.
[67] While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean they have misconceived what happened to them and who did it. The presence of inconsistencies, especially on peripheral matters such as time, location 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 he is testifying occurred as they may not be a good barometer of plausibility or implausibility of the complaint: W. (R.), at p. 134.
[68] That said, the standard of proof is the same in all cases. The changes in the way the Courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child.
[69] In R. v. C.C.F. ,1997 CanLII 306 (SCC), [1997] S.C.J. No. 89, the Supreme Court recognized that the out-of-court recorded statement of a child made within a reasonable time of the events at issue will normally be the best recollection of the event available for the trier. The Court noted it will be self‑evident to every observant parent and to all who have worked closely with young people that children, even more than adults, will have a better recollection of events shortly after they occurred than they will some weeks, months or years later. The younger the child, the more pronounced this will be. It follows that a videotape made within a reasonable time after the alleged offence and which describes the act will almost inevitably reflect a more accurate recollection of events than will testimony given later at trial. Section (715.1) enhances the ability of a Court to find the truth by preserving a very recent recollection of the event in question.
Motive to Fabricate
The 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.
Instructions Applied
Situational Credibility Issues – Motive to mislead
[70] DA had motive to dodge Primo during their interaction late in the evening in June 2014. He was frightened. He did not want his mother to learn of his continued search practices. DA desperately wanted the conversation to end and the subject put to rest. DA prevaricated on the face of their documentation. He lied to Primo about a three-year hiatus in watching pornography as well as the actual web sites he visited. Primo knew those were lies because he had independent evidence and was able to call DA out. DA acknowledged the deception only after Primo challenged him on them.
[71] This was a ten-year old child mired in what to him was a desperate situation looking for an escape without giving thought to family and legal implications. DA acknowledged surprise at the system’s response to his disclosure.
[72] That desperation would make DA vulnerable to adult suggestion. That goes to reliability and will be discussed later.
Evidentiary content and credibility
Plausibility
[73] The narrative is possible. DA was cared for by the H family in North Dundas over weekends for approximately two years after the sibling’s birth. There would be opportunity. DA knew about the purple sex toy and the chocolate syrup container discovered in the H home. He associated pain with attempted anal intercourse and dislike for the taste of ejaculate.
[74] That said, DA had the run of the home. He used the household computer in the H bedroom. That is where his grandfather found DA watching pornography alone in the room. We have no way of knowing how access to pornography informed DA’s acquaintance with corporeal experiences depicted in what he watched.
Internal Consistency of the evidence
[75] There are minor inconsistencies in DA’s narrative not probative of its plausibility or implausibility. DA framed the abusive activity to times when DA and CH were alone in the home beginning when V left for work and ending on her return. He estimated the time involved in individual sexual activity in the range of six minutes. He said exceptionally M might be home when this happened and added the incident when M encountered CH and DA in the act of fellatio. He was inconsistent about whether the lights were on or off during these episodes. DA did not correct the IO’s misunderstanding about whether David was DA’s father or grandfather. DA does not have reliable recall of when Primo vacated the home. He denies memory of the first incident. DA recalled learning the word abuse from a counsellor subsequent to the disclosure, but the word appeared first in the written conversation with Primo
[76] Those inconsistencies cannot be said to lie at the center of DA’s memories and are not worthy barometers of plausibility. That DA fused minutes and hours, as when he suggested the inference that they were sexually engaged for the duration of V’s work absence and the estimate of six - eleven-minute activity falls into the inability to recount precise details and communicate with exactitude the when of events. M was a fringe actor in DA’s life. D as father/grandfather is nomenclature. As counsel noted, this is a complicated family constitution. Whether the lights were on or off is peripheral. Once the news broke DA’s ability to track anyone else’s behaviours would be distracted. That DA does not have memory of the first incident can be ascribed to time passage and memory lapse. When DA thinks he learned the term “abuse” is only pertinent vis a vis adoption of the term as part of narrative.
[77] There are incongruities. That CH admonished DA regarding entry to the H bedroom to watch pornography when DA was caught out by his grandfather tends to make less sense as reaction from CH in the context of ongoing sexual activity than it would in a healthy responsible caregiver context.
[78] A witness will have an excuse for intentionally misleading the Court. The problem this creates is that of knowing where to separate truth from diversion. There was a common theme in testimony of the three Crown witnesses. Each one intentionally tailored testimony about issues having marginal probative value.
[79] The nature of the family dynamic and Primo’s role, whether DA talked with V incident to the disclosures or whether there were communications inter se are collateral to the main issue as white noise. Yet, each witness must have thought there was something to be gained by tailoring testimony.
[80] AA acknowledged a strategic agenda designed to control the narrative when she testified. AA depicted Primo’s role in the family dynamic at trial differently than she did during preliminary hearing testimony. She acknowledged at trial that she intentionally tailored her testimony during preliminary hearing testimony to deflect the spotlight away from Primo as perpetrator.
[81] Primo estimated the number of contacts he had with FC at fifteen when there were hundreds. The contacts are unimportant unless they related to collusion. DA denied discussion with anyone about the substance of the trial; yet Primo and AA who were not privy to the proceedings wrongly thought there was an alternate suspect submission before the court. DA denied talking with Primo after June 20/21, 2014 when they did.
[82] In cross-examination, DA denied the conversation with Aunt V until the recording and transcript were presented to him. On cross-examination, he explained he understood the conversation to be a private one and believed no one could prove it happened. He told V that AA instructed him to not discuss the disclosures with V and he did. He beseeched V to deny the substance of their discussion. On re-direct, DA said he did not know what to say; he forgot the meeting with Veronica; he hoped the issue would go away; that he told defence counsel that he chose to withhold the evidence from the court because DA wanted to agree with counsel.
[83] None of those explanations are reassuring. I am concerned that DA chose to lie to the Court about when he last saw V and about having spoken to her since the disclosures because he did not want AA to know he disobeyed her admonition. It resonates with the attempts at evasion of issues manifest in the dialogue with Primo.
[84] While inconsistencies on matters not lying at the center of memory, such as time, need to be considered in the context of age of the witness at the times of the events narrated and when the disclosure was made as such inconsistencies may not be a good barometer of plausibility or implausibility of the complaint, I am not persuaded that DA’s declaration to the IO, D and V about the continuation of abuse to either March or June of 2014 can be discounted so easily.
[85] At the age of thirteen years, DA seemed to have relative mastery of time placement. In June 2014, DA said he had a memory of being introduced to pornography by a peer when he was 6. AA confirmed the timeline.
[86] DA was cognizant of hiatus in the weekend routine and opportunity for sexual misconduct whether it was eight or twenty months. I don’t accept that DA was unable to distinguish the present designated as “now” and the past representing perhaps twenty months, eight months or “quite a while”.
[87] Whether or not DA has memory of the when he stopped going to North Dundas for weekends may be peripheral; however, the fact of lengthy hiatus is structurally different than in the present.
[88] DA acknowledged that some of what he told the IO was wrong. Telling the IO that the impugned activity persisted into the present is one and it raises concern for DA’s commitment to being truthful.
Balance to DA’s Evidence
[89] The Crown in submissions noted that when DA had opportunity to embellish, he did not. He confirmed that when DA declined CH’s entreaty for anal engagement CH accepted it. He agreed there were no threats.
[90] On the other hand, when DA was concerned about compromising information going to his mother, he tried to control the narrative.
Reliability
[91] The weight that is ascribed to the video recorded statement to police contemporaneous or nearly so to the events reported, having regard to the effects of time on a child’s memory and the recognition the recording is likely the closest rendition to truth the court will have attenuates when the recording itself was made eight or twenty months after the alleged events.
[92] The interview was conducted within a week of disclosure. By then DA had spoken to Primo, AA, Aunt V and Uncle D.
[93] Children are suggestible. As noted, the situational pressure on DA to escape the conversation with Primo and the foreseen consequences was imposing. In that context, he would accept adult suggestions as believable particulars. A trained child interviewer will avoid questions suggesting an answer. None of Primo, A or V are so trained. Their early investigations and interviews compromised the reliability of DA’s stated memories.
[94] The Crown submission is that the Court in its assessment ought not to punish/penalize Crown witnesses including the complainant for the manner in which the narrative rolled out. What else were they supposed to do? I do not accede to that submission. Crown witnesses are not on trial. The issue is whether the crown case against CH is proven beyond reasonable doubt.
[95] It isn’t often we have access to the evolution of a complainant’s narrative. The trier will always be concerned about influence and evolving story plot, but in most cases, there is no way to test the influence of interrogators. Most influence, both presented and internalized is unintentional, unconscious and indiscernible by the characters.
[96] It is rationally conceivable to believe that DA’s narrative could have concluded with the assertion about how Tio was responsible for DA’s pornographic familiarity or at least part of it.
[97] Primo asked two significant leading questions: Did he touch you? and Did he put it in your back? Both were adopted and incorporated into DA’s narrative.
[98] Next day, A suggested to DA that he would expect candy instead of CH’s penis. That was adopted and incorporated into DA’s narrative.
[99] In many circumstances we can safely draw the inference that without the experience of sexual assault, there is no explanation for the young victim’s familiarity with matters sexual other than the impugned experience. Here, DA was familiar by the proxy of pornography. He knew about sex toys, ejaculate, fellatio, the concept of anal intercourse and the self-interest value of deception.
[100] When DA provided his statement to the IO, the recent memories regarding suggestion of touching, putting it in his back and the candy expectation were fresh. DA had been watching pornography in the weeks and possibly the evening of June 20, 2014 so those images were fresh in his memory.
Conclusion
[101] Where credibility and reliability are the central issues in a trial, the court must be alert to the relationship between the assessment of credibility and the prosecution’s ultimate burden to prove guilt beyond a reasonable doubt. The trier of fact must be satisfied on the whole of the evidence that there exists no reasonable doubt as to the guilt of the accused.
[102] The question is, even though the defence did not adduce direct evidence whether I can safely accept DA’s allegations as to what he experienced at face value.
[103] I cannot. There are both credibility and reliability impediments.
[104] DA’s inaugural disclosure was situationally compromised and his experience included attempts at deflection of responsibility for his behaviour. The genesis of this narrative was personal crisis. DA tried to escape the situation with Primo by lying.
[105] It is fact that DA’s narrative sequentially adopted adult suggestions.
[106] At the commencement of DA’s cross-examination, he made a favourable impression when he said there was no point in lying when he was asked if he lied to get out of trouble. That impression was vitiated when he acknowledged having chosen to lie to counsel and the Court about the discussion with V. That concession came only after he was confronted with irrefutable evidence. The explanations about having forgotten the DQ date or wanting to agree with counsel do not make sense. He remembered the discussion and said he did not want to expose himself to consequences for having disobeyed his mother who had instructed him to avoid discussing these matters with V. His first answer, namely that he thought it was something no one could prove is closest to the truth.
[107] Although time is not an essential element and the “when” is generally a matter peripheral to the central memory, the representations to Uncle D of continuation through to two or three months before their discussion and to the IO of continuation to the present (at the time) raise concern about carelessness with the truth.
[108] Proof beyond reasonable doubt is a high standard. As noted earlier, a trier is less likely to reject the substance of what a witness says when the issue is honest but mistaken evidence than when the issue is sincerity. I am not confident to the requisite standard of DA’s sincerity and reliability and that raises reasonable doubt
[109] For these reasons I conclude that the foundation for conviction in these circumstances is unstable and conviction unsafe. The charges are dismissed.
The Honourable Mr. Justice Rick Leroy
Released: November 15, 2019
COURT FILE NO.: CR-16-02
DATE: 2019/11/15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
C.H.
REASONS FOR JUDGMENT
The Honourable Mr. Justice Rick Leroy
Released: November 15, 2019