ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
R. Raeesi for the Crown
- and –
P. M.
S. Vincent for the defendant
HEARD: February 10-13, 19, 2020
REASONS FOR JUDGMENT
D.E HARRIS J.
[1] The defendant P.M. is charged with several sexual offences allegedly committed against A.B. A.B. was the young daughter of his new wife; she was P.M.’s stepdaughter. The offences are historic; they were allegedly committed 38 years ago. Because the alleged offences were committed close to the January 4, 1983 date in which our sexual offences were altered by Parliament, as a precaution, the Crown charged the offences in the way they would be legally described both before and after the legislative changes.
[2] This is a brief summary of the allegations. The complainant testified that after grade seven, she went to Edmonton for the summer. She turned 14 that August, having been born in 1968. One morning, while sleeping in the same bed with her 7 year old brother, she woke up to find P.M. at the bottom of the bed. One of her legs was on his shoulder; his head was between her legs. P.M.’s hand was touching her breast area on top of her clothing. Her brother stirred while sleeping and P.M. stopped what he was doing. A.B. fell back asleep.
[3] This allegation was not charged and was outside the territorial reach of the indictment. It was presumptively inadmissible and would only become admissible if it met the criteria for the admission of discreditable conduct. The defence opposed its admission. In the end, during final submissions, neither counsel spent much time arguing admissibility or probative value.
[4] The complainant testified that the next incident occurred in the Glen Erin Drive apartment in Mississauga into which she moved into in grade 6 or 7. P.M. found her in the complex’s recreation room after her curfew. She had been attending a Halloween party with friends. P.M. beat her as a means of discipline. A few days later, P.M. and A.B. were alone in P.M.’s bedroom. He forcibly kissed her, sticking his tongue into her mouth. She cried uncontrollably. Ms. A.B. agreed that when she eventually went to the authorities with the allegations against P.M., she did not inform them of this incident.
[5] The main incident around which this trial revolved occurred on a day in the fall of 1983. A.B., about 15 years old at the time, was pregnant and had just returned from a doctor’s visit.[^1] She did not go to school that day. She was in her bedroom. P.M. came in and asked her to come out into the hall. She was told to lie down. P.M. then raped her. He had a washcloth in his hand and put it over her mouth. Ultimately, he ejaculated into the washcloth. She recalled looking back at the light coming from under the front door of the apartment. It was about 3:30-4:00 p.m. and she was expecting and hoping that her brother would come home from school and interrupt the sexual assault. While the complainant described in general the clothes P.M. was wearing and a scar on his upper chest, she did not remember what she was wearing.
[6] With respect to the pregnancy, A.B. testified that the child was conceived before she was forced to have intercourse with P.M. This occurred on a night when she ran away from home. The police found her in a mall. A missing person report from Peel Regional Police confirms that she was reported missing on July 16, 1983 by her mother. She was found with a white man of 16 years of age. It appeared that she had spent the night in the company of this individual. When the first semester of school was completed, she was sent to Bethany Home, a home for unwed mothers. When the child was born, he was almost immediately adopted. A.B. stayed at Bethany Home recovering and then moved back home.
[7] The accused did not testify.
ANALYSIS
[8] I will begin with several general observations before moving on to the more specific. In cross-examination, A.B. was a combative witness. With some frequency, she would answer counsel’s questions with questions of her own. Even when instructed to answer the questions, Ms. B. at times found it difficult to do so. It was evident that this combative stance was fueled by anger. It was defensive. Ms. B. appeared to resent that she was being asked the questions she was. I hasten to add that the questions were proper questions and that there was no badgering or abusive treatment of the complainant by counsel.
[9] A combative witness can be a credible witness. Hard and fast rules when it comes to a witness’ psychology should be approached with suspicion. For example, questions by counsel could have an almost undetectable edge to them or the complainant may be particularly vulnerable and sensitive. Aggressive rejoinders may be appropriate and understandable. Trial judges must have sufficient sensitivity to gauge the impact of the questions. The factors affecting credibility are too numerous and too multifarious to permit trial judges to neatly catalogue a witness’ response.
[10] It could be said that the ideal is an objective, neutral appearing witness. Even then, a thoroughly objective witness may not necessarily be a credible witness. Detachment can itself be troubling. But, as a general proposition, an objective, contained witness will usually be more credible than a witness given to outbursts or a witness who tends to be overly aggressive and combative.
[11] However, Ms. B. was more than just combative. She was at times deliberately unresponsive to the cross-examination questions. This, in my view, led at times to a suspicion that she was evasive and, hence, unreliable. Her combativeness and her unresponsive answers weighed against her credibility and reliability.
[12] In his 31 page written submissions, Mr. Raeesi made several submissions to support the veracity of Ms. A.B. For example, he argued that her demeanor was “straightforward, careful and compelling.” I do not agree with this characterization. The lack of responsiveness tends to contradict it.
[13] There are two other general issues. Crown counsel conceded that the allegations in this case were unconfirmed. I think that is correct. The only possible qualification to this is that Ms. B. testified that she was regularly beaten by the defendant and would often run away from home. Records were introduced documenting that she had in fact run away from home on several occasions.
[14] Confirmation requires that the evidence be independent and material. The records were independent of the complainant. That criteria is met. I do not think these matters were material, however. The running away from home, at least at the outset, according to the complainant, was to avoid being beaten by the defendant, not to avoid the sexual abuse. Later on, it may have become about the sexual abuse as well, although that is not entirely clear.
[15] In any case, whether the evidence crosses the admissibility threshold or it does not, is insignificant. If it is sufficiently probative on the issue as to gain admission, I would, encouraged by the Crown’s reasonable position that there was a lack of confirmatory evidence, accord it only the most minimal weight.
[16] It is fair to conclude therefore that the evidence of the complainant stands essentially unconfirmed. While of course the necessity of corroboration has not been legally required for almost 40 years since the time of the 1983 amendments (see Section 274 of the Criminal Code), the absence of confirmation is significant and makes the Crown’s obligation substantially more difficult. Justice Fish said in R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104 at para 2:
[W]here the guilt of the accused is made to rest exclusively or substantially on the testimony of a single witness of doubtful credit or veracity, the danger of a wrongful conviction is particularly acute.
[17] The evidence of A.B. is unconfirmed: Khela and R. v. Demedeiros, 2018 ABCA 241, 364 C.C.C. (3d) 271 at paras. 8-13, aff’d 2019 SCC 11. I would be reluctant to go quite so far as to say that A.B. was a witness of doubtful credit or veracity. But the allegations are very old and this as I am about to explain, is a major concern. In the end, the sentiment expressed by Justice Fish is pertinent to this case.
[18] That leads to the last area requiring comment. In general, the longer the time period that has elapsed since the alleged offence, the more room there is for memory to dull and to be infiltrated by inaccurate recollection and thoughts (Issues Arising in Criminal Prosecutions for Distant Events by Marc Rosenberg (1995 Canadian Appellant Court Seminar /Colloque de 1995 des Cours d'appel canadiennes) LexisNexis, Alan D. Gold Collection of Criminal Law Articles, ADGN/RP-005 at paras. 140-141). I understand that delay in disclosure is not itself a reason to not believe a complainant: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275. But the passage of time, when it is as many years as it is in this case, is a different issue.
[19] In this case, both reliability and credibility are implicated by the passage of time. The lengthy time period is augmented by the clear animus against P.M. expressed throughout A.B.’s evidence. This might of course have been a result of the alleged sexual assaults against her. But it does not seem to be contested that P.M. was a harsh disciplinarian and a strong believer in corporal punishment. This deplorable behaviour would naturally have produced anger in any child and did in A.B. as well. She acknowledged it. In the end result, anger against the accused together with the very lengthy passage of time worked against the Crown’s attempt to prove the case beyond a reasonable doubt.
[20] In terms of a more specific analysis of A.B.’s evidence, the evidence of the one instance of full intercourse was attacked by counsel for P.M. on the basis that A.B. would have been expected to remember what she was wearing. I find nothing odd that she did not so many years afterwards. What did seem somewhat unusual was the fact that intercourse was forced in an open, public part of the house. If A.B.’s brother had come home from school, which he could have at any moment, P.M. would have been found out.
[21] I recognize that for some sex offenders, risk-taking sexual assaults are part of their mode of operation. For example, in the well-known hearsay case of R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, the offender sexually assaulted the 3 year-old victim when her mother was in an immediately adjoining examining room out of which she could have emerged at any time. Nonetheless, in the present case, the unusual choice to commit the very serious sexual assault in circumstances in which he was at high risk of being discovered is a factor which weighs against Ms. A.B.’s account, in my opinion.
[22] The circumstances around the making of the complaint to others and to the authorities can be exceedingly important: see R. v. M.K., 2019 ONSC 2698 (Ont. S.C.) at paras. 31-34. In this case, A.B. testified that as her mother lay dying in 2012, she made A.B. swear to keep peace with her brother. A.B. testified that she disclosed to her brother quite a long time ago the sexual abuse at the hands of P.M. but hesitated to complain to the authorities for several years out of respect for him and his wife. They presumably were skeptical of her account. After a fight about it, her brother said to her that if it was true, she should go to the police. This took the form almost of a dare to go to the authorities. A.B. herself saw this as a challenge to the veracity of her account. This is when she decided to complain and went to the police.
[23] This, of course, is far from definitive against the veracity of the allegations. Nonetheless, in the context of the rest of her evidence, it is capable of raising suspicions whether the complaint was made because it was true or to demonstrate to her brother that she was good to her word and was sticking to her guns.
[24] Lastly, I had concerns about the complainant’s recounting of her pregnancy. When it was suggested that she wanted to get pregnant, A.B. denied this and said that instead she wanted to have sex with someone other than P.M. She said that she did not intend to get pregnant. She agreed, however, that part of the purpose was to “keep him at bay.” Later in her evidence she said that she did not want him to be the first person that she had sex with. I found this all somewhat strange. Prior to getting pregnant, according to her evidence, P.M. had committed the acts in Edmonton and, in Mississauga, including forcibly kissing her. However, it does not seem as though it could reasonably be expected that he would force her to have intercourse with him. So why would she decide to have sex, not wanting to get pregnant, in order to hold him off? Furthermore, besides this, while getting pregnant could hold some men off, it seemed like a rather extreme and unreasonable measure. There was no detail to explain how she believed this might in some way benefit her and prevent any further sexual offences. The entirety of the evidence on this issue was convoluted and did not make much sense.
[25] Finally, I should add here that I do agree with the Crown that A.B.’s evidence was reasonably consistent and there were no significant prior inconsistent statements adduced. There were other positive aspects to her evidence as well.
CONCLUSION
[26] In a criminal trial, the playing field is not level; it is tilted heavily in favour a defendant. There is no initial presumption that a witness is telling the truth (R. v. Semple, 2015 ONCA 562, at para. 3) nor can weight be placed on the mere fact of a complaint to the authorities.
[27] The presumption of innocence and the requirement that the Crown must prove guilt beyond a reasonable doubt is the central procedural protection for an accused person. The high degree of belief required to constitute proof beyond a reasonable doubt is directly related to the onerous consequences of a criminal finding of guilt: R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7 at S.C.R., pp. 119-120. As Chief Justice Dickson said in that case in the process of explaining the importance of the beyond a reasonable doubt standard, “In light of the gravity of these consequences, the presumption of innocence is crucial.”
[28] The finder of fact need not be certain to a level of mathematical certainty. But a jury or judge, in accord with the standard of proof beyond a reasonable doubt, must on all the evidence be “sure” that the acts took place: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at paras. 231-232; R. v. Bisson, 1998 CanLII 810 (SCC), [1998] 1 S.C.R. 306. This is closer to absolute certainty then it is to the civil balance of probabilities standard: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242 per Justice Iacobucci.
[29] For the reasons I have given above, in this case, I do not possess the high degree of belief necessary to attain the beyond a reasonable doubt level of certainty. It may well be that something happened. I believe P.M. was likely physically abusive towards his stepdaughter. But I can go no further.
[30] Assuming without deciding that the Edmonton evidence is admissible, it does not materially advance the Crown’s cause. Therefore, P.M. is found not guilty of all counts in the indictment against him.
D.E HARRIS J.
Released: September 8, 2020
COURT FILE NO.: 0010-18
DATE: 2020 09 08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and –
P. M.
Defendant
REASONS FOR JUDGMENT
D.E HARRIS J.
Released: September 8, 2020
[^1]: This evidence, led by the Crown, falls within Section 276 of the Code. The complainant with the assistance of independent counsel waived any privacy or autonomy concerns. I concluded that this evidence was admissible because it was an inextricable part of the complainant’s evidence with respect to the forced sexual intercourse: R. v. R.V. 2019 SCC 41 (S.C.C.) at para. 78; R. v. Barton, 2019 SCC 33 (S.C.C.), R. v. Goldfinch, 2019 SCC 38 (S.C.C.)