COURT FILE NO.: CR-19-1062
DATE: 2020 09 18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
W.R.
Derrick Silvestro, for the Crown
David O’Connor, for W.R.
HEARD: September 16 & 17, 2020
REASONS FOR JUDGMENT
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Conlan J.
I. Introduction
[1] Did the accused, W.R., sexually interfere with and/or sexually assault the minor granddaughter (the complainant, M.M.) of his long-time girlfriend (D.C.)? That question was at the centre of this trial.
The Charges, The Issue, and What the Crown Must Prove
[2] There are three counts on the Indictment: two counts of sexual interference (section 151 of the Criminal Code) and one count of sexual assault (section 271 of the Criminal Code).
[3] Taken from the Indictment, the formal charges read as follows (this is not verbatim):
count 1 – that W.R., between January 1, 2014 and August 30, 2018, at Hanover or elsewhere in Ontario, did commit a sexual assault on M.M., contrary to section 271 of the Criminal Code;
count 2 – that W.R., between January 1, 2014 and June 30, 2014, at Hanover or elsewhere in Ontario, did for a sexual purpose touch M.M., a person under 16 years old, with his hand, contrary to section 151 of the Criminal Code; and
count 3 – that W.R., between January 1, 2014 and August 30, 2018, at Hanover or elsewhere in Ontario, did for a sexual purpose touch M.M., a person under 16 years old, with his penis, contrary to section 151 of the Criminal Code.
[4] The real issue in this case is whether the events alleged to form the bases of the crimes charged ever took place.
[5] It is for Crown counsel to prove beyond a reasonable doubt that the sexual activity (which term I mean to include sexual touching) alleged in fact occurred. It is not for the accused to prove that it never happened. If I have a reasonable doubt as to whether the disputed events ever took place, I must find W.R. not guilty.
[6] Due to the complainant’s age at the time, consent and honest but mistaken belief in consent are not issues for trial.
[7] For the Court to find W.R. guilty of sexual interference, the prosecution must prove each of these essential elements beyond a reasonable doubt:
i. that the complainant was under 16 years old at the time (that is not disputed);
ii. that the accused touched the complainant; and
iii. that the touching was for a sexual purpose.
[8] If the Crown has not satisfied me beyond a reasonable doubt of each of those essential elements, I must find the accused not guilty of sexual interference.
[9] For the Court to find W.R. guilty of sexual assault, the prosecution must prove each of these essential elements beyond a reasonable doubt:
i. that he intentionally applied force to the complainant; and
ii. that the force took place in circumstances of a sexual nature.
[10] If the Crown has not satisfied me beyond a reasonable doubt of each of those essential elements, I must find the accused not guilty of sexual assault.
The Presumption of Innocence
[11] The accused is presumed to be innocent of the charges. He has no burden to prove anything. That rests entirely with the Crown.
[12] Proof of probable or likely guilt is insufficient. Proof beyond a reasonable doubt requires that the Court be sure of the accused’s guilt before finding him so.
Multiple Charges
[13] Each charge must be considered on its own. Although in the context of this particular case it might be odd to so find, the verdicts do not necessarily need to be the same across the various counts on the Indictment.
The Trial and a Brief Summary of the Evidence Adduced
[14] This was a very short trial. The evidence was completed in one day. Submissions were delivered the following afternoon. This decision is being rendered the day after the submissions were heard and two days after the evidence was presented.
[15] For the Crown, I heard from the complainant, M.M., her mother (C.C.), her grandmother (D.C.), and the officer in charge of the investigation, Detective Constable Fagan (“Fagan”).
[16] The Defence did not present any evidence.
Fagan
[17] Fagan is an experienced police detective, having served nine years with the Ontario Provincial Police.
[18] He took the audio-video recorded statement from the complainant on May 15, 2019, that statement having been unsworn and without any affirmation or promise to tell the truth and also without any discussion about truth and lies.
[19] After that statement was concluded, Fagan formed the requisite reasonable and probable grounds to arrest W.R.; that arrest was effected by another police officer on May 16th, the next day.
[20] Fagan also took a statement from the accused, however, that statement was not the subject of any evidence at trial.
D.C., the Complainant’s Grandmother
[21] Currently 62 years old, D.C. is the maternal grandmother of the complainant. D.C. was in a 15 to 16-year relationship with the accused. The alleged offences occurred during the course of that relationship. D.C. and the accused have not been a couple for a while now.
[22] The complainant and her sister would often stay over at the accused’s residence when D.C. was there. The girls would also stay over at D.C.’s residence when the accused was there.
[23] There are three places in total where D.C., the accused, the complainant and the complainant’s sister would all stay overnight – W.R.’s apartment in Hanover, D.C.’s apartment in Walkerton, and W.R.’s residence along the highway between Hanover and Walkerton.
[24] D.C. testified that she never saw or heard anything untoward (my word) between M.M. and the accused, at any place, and she was shocked when she first learned about the allegations upon the police becoming involved.
C.C., the Complainant’s Mother
[25] Currently 34 years old, C.C. is the complainant’s mother and the daughter of D.C. C.C. also has another daughter, the complainant’s sister.
[26] C.C. confirmed that her two girls would often sleep overnight at W.R.’s place, along with their grandmother.
[27] C.C. first learned of M.M.’s allegations against W.R. in January 2019, several months before the complainant spoke to the police.
[28] C.C. testified that, during the period of time that the alleged offences occurred, she never saw anything that suggested that M.M. had a problem with being around the accused.
M.M., the Complainant
The Section 715.1(1) CCC Application by the Crown
[29] The complainant, in May 2019, gave an audio-video recorded statement to the police. During her evidence at trial, the Crown applied to admit for their truth the contents of that statement, pursuant to section 715.1(1) of the Criminal Code.
[30] Without objection by the defence, and for oral reasons given at the time, the application was granted. In my view, the Crown had established the five criteria that are necessary for such an application to be successful:
(i) the complainant was under 18 years old at the time of the alleged offences;
(ii) the recorded statement was made within a reasonable time after the alleged offences;
(iii) the alleged victim described the acts complained of in the recorded statement;
(iv) the complainant, at trial, adopted the contents of the recorded statement; and
(v) to admit the recorded statement for the truth of its contents would not have interfered with the proper administration of justice.
The Allegations Made by M.M.
[31] Today, M.M. is 15 years old (almost 16). She is in grade 11.
[32] In her audio-video recorded statement, adopted as part of her evidence at trial, M.M. stated that the first incident of sexual touching of her by the accused happened about four years before the date that she gave the statement. Since she gave the statement in May 2019, that would place the first incident as having occurred in approximately 2015. At that time, she would have been between 10 and 11 years old.
[33] According to M.M., the first incident occurred at W.R.’s place in Hanover. She was wearing pajamas and on the bed with the accused, upstairs. Her grandmother was downstairs. The accused tried to take off her pants and shirt. The encounter ended with M.M. leaving the bedroom.
[34] The next incident happened at D.C.’s place in Walkerton. The grandmother was watching television in the living room and sleeping on and off. M.M. was in the nearby bedroom, on the same floor, with the accused. She had been wearing jeans and a sweater, but then they were both completely naked. W.R. had vaginal intercourse with M.M. for about twenty minutes. Afterwards, he told her to keep her mouth shut.
[35] During the audio-video recorded statement, Fagan asked the complainant “how many times in total would you say that [W.R.] had sex with you?”, and the complainant replied “forty times” (page 21 of the transcript).
[36] According to the complainant, as stated in her audio-video recorded statement, which statement formed almost the entirety of her evidence-in-chief at trial, except for the one incident described above which occurred at D.C.’s place, all of the sexual abuse occurred at the accused’s place (for the most part, the one in Hanover). It was always when the only ones present were M.M., W.R., and D.C. The accused never wore a condom, and he ejaculated every time, and it was always vaginal intercourse. The last incident happened in the summer of 2018, that time at W.R.’s residence located along the highway, and the intercourse on that occasion lasted thirty minutes.
[37] Apparently, M.M.’s sister made some sort of allegations against the accused, and those complaints are what spurred M.M. to make her own disclosures in 2019.
II. Analysis
Corroboration is Not Required, and the Law Regarding Child Testimony
[38] There is no requirement that M.M.’s allegations be corroborated in any way, and any difficulties with her evidence have to be assessed in light of her young age. She is still not 16 years old today, and she was much younger when the alleged sexual abuse began.
[39] While the evidence of children is not to be subjected to a lower standard of proof than that of adults in criminal proceedings, it is often wrong to apply adult tests for credibility and reliability to the evidence of a child. After all, the mental development, understanding, memory and ability to communicate of a child may well be different than that of an adult, making the presence of inconsistencies in the child’s evidence, especially on peripheral matters, less important. A common sense approach must be taken. R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at paragraphs 25 through 27.
Assessment of the Evidence of the Complainant
[40] Having said all of that, I have some serious concerns about the evidence of the complainant.
[41] First, her evidence was materially inconsistent with that of her grandmother, and I prefer the evidence of D.C. where it conflicts with that of the complainant. D.C., a Crown witness and no longer aligned in any way with the accused, was a frank and plain-spoken witness who obviously loves her daughter and her granddaughters.
[42] M.M. testified in cross-examination that she told her grandmother, repeatedly, that she did not want to go to see the accused. D.C. said no such thing during her testimony at trial, and I accept the evidence of D.C. in this regard.
[43] As another example, M.M. testified in cross-examination that her grandmother’s bed at D.C.’s Walkerton apartment did not really squeak. D.C. stated that it definitely did, and I accept that evidence of the grandmother.
[44] As a third example, M.M. testified that the very first incident of sexual touching occurred when her grandmother was sleeping downstairs and the complainant and the accused were upstairs. This was at W.R.’s place in Hanover. D.C., however, was adamant that she never slept downstairs at the accused’s place in Hanover, and I accept that evidence of the grandmother.
[45] Note that, in re-examination, D.C. conceded that she is “unsure” if there was ever a time that she was downstairs and the girls and the accused were upstairs, but that question in re-examination pertained only to the highway residence and not to the Hanover apartment. In fact, the re-examination only served to solidify the point that D.C. never slept downstairs at the Hanover apartment. She said that, again, in re-examination, and further she explained that the downstairs was a separate apartment that was not even connected, internally, to the upstairs unit. Especially given her mobility issues, it makes no common sense, in my view, that D.C. would have ever been sleeping downstairs at W.R.’s Hanover residence.
[46] This is not a minor detail because one has to consider the forcefulness of M.M.’s evidence about the first alleged incident of sexual touching. She not only stated that it occurred upstairs while her grandmother was downstairs, but she also described that it ended when she left the bedroom and went downstairs to sleep with D.C. Given the evidence of D.C., which evidence I accept, that must be wrong.
[47] As a fourth example, D.C. was clear that, for the most part, her two granddaughters would spend time together with W.R. and D.C., which evidence I accept and which was consistent with the picture painted by C.C. as well, yet the evidence of the complainant suggested that she was very frequently in the company of W.R. and D.C. without her sister being present.
[48] Second, M.M.’s evidence was internally contradictory on some important points. I do not suggest that she is deliberately lying, nor do I impugn her motives. On some material issues, though, her evidence was a moving target.
[49] For example, M.M.’s in-chief evidence was that she did not remember what position she was in on the bed during the first incident of sexual intercourse, while in cross-examination she testified that W.R. was always on top of her on the bed during all of the incidents of sexual intercourse.
[50] Also, in cross-examination M.M. testified that she thinks that the accused ejaculated once. Mere moments later, still in cross-examination, she agreed that he had ejaculated every time, and she is “positive” about that. A short time later, still in cross-examination, when the Court asked for clarification, the complainant returned to saying that she could remember only one incident when the accused ejaculated. Remember, as well, that in her police statement the complainant told Fagan that W.R. had ejaculated every time.
[51] In addition, in cross-examination, as alluded to above, the complainant first denied that the bed at D.C.’s Walkerton apartment squeaked. Mere moments later, still in cross-examination, she stated that, during that first incident of sexual intercourse, the bed was squeaking for twenty to thirty minutes.
[52] Third, I do not believe that the sexual abuse of M.M. at the hands of W.R. could have persisted for as long as it allegedly did, and happen as frequently as it allegedly did, and be as intrusive as it allegedly was (full vaginal intercourse), all at the rather tight-quartered places where it allegedly happened, without D.C. suspecting that something was going on.
[53] D.C. is not a sophisticated person, but her excellent relationship with M.M. and her sister and her love for her granddaughters are undisputed. She was in a relationship with the accused but was adamant in direct examination at trial to declare that she never lived with him and always maintained some level of independence. I am convinced that she would have ended the relationship with the accused immediately if she had even a whiff that he was being inappropriate in any way with one or both of her granddaughters.
[54] Fourth, I am concerned that M.M. is prone to exaggeration or even guessing, and those are factors that work against the reliability of her evidence. Of course, the starkest example of this is the number of times that the sexual intercourse allegedly happened – forty times. That was an immediate and firm answer given by the complainant during her audio-video recorded statement. At trial, when asked how she arrived at that number, she stated that it was “just a number”, could have been more or could have been less.
[55] With respect, that type of speculation, on such an important matter, even for a child the age of the complainant in May 2019 and now, is discomforting.
The Crown’s Submissions
[56] As reasons for judgment are primarily for the benefit of the unsuccessful side, and as Mr. Silvestro delivered such well-prepared submissions, I feel it necessary to address some of them directly.
[57] First, I respectfully disagree with the Crown that any concerns that the Court may have with regard to the evidence of the complainant relate to the kind of peripheral matters that are inconsequential when viewed in the context of child testimony and the law as explained by the Supreme Court of Canada in W.(R.), supra.
[58] I would agree that some of the items referred to by learned defence counsel are, indeed, precisely what the Supreme Court of Canada has cautioned judges to not place any weight on, and I have not done so, such as the duration of a sexual act in the mind of a child who is as young as 11 years old at the time that it was allegedly committed.
[59] In my opinion, the serious concerns that this Court has with the evidence of M.M., as identified above, cannot be overlooked on the basis of her being a child.
[60] Second, I agree with the Crown that the audio-video recorded statement of M.M. is replete with leading questions from the officer. With someone who is as prone to suggestion as M.M. appears to be, that is regrettable and only serves to bolster this Court’s doubt about the reliability of the complainant’s allegations.
[61] Third, I respectfully disagree with the Crown that D.C.’s evidence should be viewed skeptically because she demonstrated a poor memory and/or confusion during her testimony.
[62] As counsel likely noticed during my exchanges with them in the course of their closing submissions, I was quite impressed with the evidence of the grandmother, which is why I have preferred her evidence over that of the complainant on matters upon which they differ. In addition to the flattering comments that I made above concerning D.C., I found it refreshing that she was quick to say when she could not remember something or did not know the answer to a question, and she was at all times very fair towards the complainant. In fact, she only reluctantly spoke of her suspicions about M.M. having stolen from her when she was pressed about that issue in cross-examination by defence counsel.
[63] In summary, I found D.C. to have demonstrated many of the hallmarks of a truthful and careful witness.
[64] Fourth, the Crown submits that this Court should give no or very little weight to the issues, all raised by the defence, of M.M.’s delayed disclosure of the allegations, her alleged motive to fabricate the allegations in order to support her sister, and the argument that M.M.’s allegations are incredible or unreliable because it makes no sense that she would do nothing to stop the sexual encounters with W.R. while they were occurring. I tend to agree with the Crown, and none of the said issues has played any part in my assessment of the evidence of the complainant.
[65] In the end, however, I agree with Mr. O’Connor that there are too many other, more serious, concerns about the evidence of the complainant to meet the criminal standard of proof that the Crown carries.
[66] Finally, the Crown submits that, although corroboration is not required, which I agree with, the evidence of D.C. and C.C. tended to corroborate the allegations in one sense, when both mother and grandmother testified that the two girls seemed less desirous of seeing W.R. starting around mid-2018, and in fact M.M. did not want the accused to attend her grade 8 graduation that year.
[67] I think that was a good submission by the Crown. But, viewed in context, I assess the potential corroborative value of that evidence to be weak. After all, that could very well have had much more to do with the sister’s complaints rather than anything allegedly experienced by M.M. herself, and in addition D.C. and C.C. also both testified that they could foresee, and did at the time, other reasonable explanations for the change in attitude among the two sisters, such as them simply getting older and wanting to pursue other interests. I agree with that.
[68] In the end, the evidence pointed to by the Crown does little to alleviate my serious concerns, described above, about the evidence of the complainant.
The Criminal Standard of Proof Applied to this Case
[69] In totality, I am left unsure as to whether the complainant’s allegations are true or not. Put another way, I am left with a reasonable doubt as to whether the accused sexually interfered with and/or sexually assaulted M.M.
III. Conclusion
[70] I was very impressed with the way in which Mr. Silvestro prosecuted this case at trial. I was also struck by the maturity, the politeness, and the intelligence of the young lady, M.M. It is clear to me that she has a great deal of potential to offer the world, and I am confident that she will be a positive force to be reckoned with.
[71] The criminal standard of proof is a rigorous one. For all of the above reasons, I find W.R. not guilty on all counts.
[72] I thank Mr. Silvestro and Mr. O’Connor for running a very efficient trial.
(“Original signed by”)
Conlan J.
Released: September 18, 2020
COURT FILE NO.: CR-19-1062
DATE: 2020 09 18
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
W.R.
REASONS FOR JUDGMENT
Conlan J.
Released: September 18, 2020