ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-17-5024
DATE: 2020/09/30
BETWEEN:
HER MAJESTY THE QUEEN
– and –
P.L.
Jessica Carvell, for the Crown
Anne-Marie McElroy, for the Accused
HEARD: September 14, 15 and 16, 2020
SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY PURSUANT TO S. 486.4 OF THE CRIMINAL CODE OF CANADA
REASONS FOR JUDGMENT
DOYLE J.
Overview
[1] The accused, P.L., is charged that between the 16th day of October 2011 and June 30, 2013 at the City of Ottawa did commit a sexual assault on K.A.L. contrary to s. 271(1) of the Criminal Code, R.S.C., 1985, c. C-46 (“Code”).
[2] P.L. is also charged that between the 16th day of October 2011 and the 30th day of June 2013 at the City of Ottawa did, with a part of his body, to wit his tongue, for a sexual purpose, directly touch the body of a person under the age of sixteen years, namely, K.A.L. contrary to s. 151 of the Code.
[3] The accused denies that the alleged incident occurred.
[4] Matters such as jurisdiction and age of the complainant are not in dispute.
Guiding Principles
[5] The issue I must decide is whether the Crown has proven the elements of the alleged offences beyond a reasonable doubt.
[6] The Crown must prove the following essential elements of the offence of sexual assault beyond a reasonable doubt:
i) That P.L. intentionally applied force to K.A.L.; and
ii) That the force that P.L. intentionally applied took place in circumstances of a sexual nature.
[7] If the Crown has satisfied me beyond a reasonable doubt of each of these essential elements, then I must find P.L. guilty of sexual assault.
[8] Because of the age of the complainant at the material times, consent and honest but mistaken belief in consent are not relevant and are not defences available to the accused.
[9] Regarding sexual interference, the Crown must prove the following essential elements beyond reasonable doubt:
i) That the complainant was under 16 years of age at the time. This is not in dispute;
ii) That the accused touched the complainant. This involves intentional physical contact with any part of the complainant’s body; and
iii) That the touching was for a sexual purpose. Touching is done for a sexual purpose if it is done for the accused’s sexual gratification or to violate the complainant’s sexual integrity.
Crown’s Evidence
[10] The Crown called two witnesses: the complainant, K.A.L., and J.G.
[11] P.L. is the biological father of K.A.L.
[12] J.G. was a close friend to whom K.A.L. first disclosed the alleged sexual assault in the summer of 2016.
[13] K.A.L. was 9 years of age at the beginning of the charge period.
K.A.L.
[14] K.A.L. testified that in the summer of 2016, she disclosed the incident to J.G., a best friend who she could trust. They were having a discussion about their “darkest secrets.”
[15] J.G.’s uncle and K.A.L.’s mother had been together for a couple of years.
[16] K.A.L. told J.G. what her father had done to her and felt she could trust her with the secret. Under cross-examination, she admitted that she only meant to tell J.G. her secret and did not expect it would be shared with others.
[17] J.G. convinced her to tell her older sister H.L. that evening. They were at her mother’s home. She then told her big sister who said they had to tell their mother. They waited until morning as it was 3:00 a.m. and her mother was sleeping.
[18] Her mother convinced her to tell the police.
[19] Her mother asked her who she could tell and K.A.L. felt that her mother would tell others anyway so she said that her aunt, uncle and grandparents could be told. She agreed to go to the police with the disclosure.
[20] On consent, the videotape interview held with the Ottawa Police Service dated September 15, 2016 was admitted in evidence pursuant to s. 715.1 of the Code. The transcript was filed as a lettered exhibit as an aide memoire (“transcript”). K.A.L. adopted the statements made in the videtape interview.
[21] The videotape shows the following:
K.A.L. was born in 2002 and lives with her mother and sisters and her mother’s boyfriend;
J.G. is her mother’s boyfriend’s niece and is one of K.A.L.’s best friends. They hang out a lot;
One Sunday night K.A.L. and her father were watching the television show, The Walking Dead, in his apartment on the couch. She says that she was living with her father in his apartment near her old school with two sisters, H.L. and V.L., her father and their dog Lola;
She previously been with her mother, but her mother and K.A.L. had had a fight and the Children’s Aid Society (“CAS”) took her away and she was originally staying with her uncle;
The night of the incident, H.L. and V.L. were sleeping in their own rooms;
She indicated that her father would sleep in the king size bed in the room where her and V.L. her younger sister would sleep. K.A.L. and V.L. each would take turns sleeping on the mattress on the floor;
She says she was in Grade 4 or 5 and attending Leslie Park Middle School and her teacher was Mr. Al;
Her father was pestering her, and said he would give her a glass of milk and $3 and she said no but he did it anyway;
When asked by the officer what he said, she said that she did not know but she knew what he was doing was wrong;
When asked how did she know it was wrong, she said “I don’t know” and she said she had a feeling that something bad was going to happen and she said no;
He was sitting in the middle of the three seater couch or “like lying down or something, I don’t know”;
When asked how long it lasted, she said less than ½ hour;
He licked her in an inappropriate place then gave her $3.00 and a glass of milk;
Prior to that, she stated that she had a shower and no one was helping her in the shower;
After her shower, she was wearing one of his T-shirts as a nightgown with nothing underneath and she had no socks on as she does not like them;
K.A.L. indicated that her father was pestering her with words and does not know what he was saying but she had a feeling something bad was going to happen;
She had a blanket or sheet on top of her as it was cold. She kept saying no;
She was sitting leaning on the armrest of the three-seater couch. He was on the other end of the couch and may have been lying down;
He continued pestering her with words but she does not know the words;
She did not want to say where he touched her but agreed with the officer that it was in the #1 spot which was identified as the vagina;
He got out of the blanket and got up and told her to go to bed. It had not happened before nor since. He told her to keep it a secret;
She said that after she told J.G. she was in the kitchen alone with her older sister H.L.
H.L. told her what happened between her and her father and then K.A.L. told her what happened to her and they stayed up until 4 or 5 a.m.;
H.L. was crying when K.A.L. disclosed to her what happened to her;
H.L. had previously told K.A.L. what had happened between her and her father. They joked about it as H.L. had received $10.00 rather than $3.00;
It had come up with J.G. as they were playing a game of “what is your deepest darkest secret”. She stated: “I’m like do you promise not to tell anyone? She’s like: Yeah, I won’t tell anyone”. And like I told her what happened.” (p. 35/44 of the transcript);
It has been about two years since she has watched the Walking Dead;
The complainant told her mother in the morning and her mother asked who they should tell. K.A.L. told her who she could tell as otherwise her mother would decide who to tell;
She stated that her aunt was shocked when she was told as K.A.L. said that she is known as the “good girl” and nothing bad happens to her. K.A.L. stated that she felt that now that it happened to her it would maybe help her older sister H.L. with the allegations she made about what her father did to her.
[22] In her examination-in-chief, K.A.L. testified that at the time, she was living with her father, not her mother and does not remember whether she was seeing her mother. H.L. and V.L. were also living with them.
[23] It was common and a special thing that she and her father would watch The Walking Dead together every Sunday night at 9:00 p.m.
[24] Her father had a girlfriend living in the same building as him.
[25] K.A.L. remembers attending Grade 4 or 5 at Leslie Park Middle school. It only goes to Grade 6 and the school was 10 minutes away from her father’s apartment. Previously, the family had lived in Arnprior.
[26] H.L. and V.L. were not in the living room. H.L., an older sister, went to bed early as she likes sleeping. V.L., a younger sister, was too young to be up as The Walking Dead was on late.
[27] She denied that V.L. would ever come in the living room while they were watching the Walking Dead.
[28] Their bedrooms were down the hallway in the apartment.
[29] For most of the show, her back was on the cushion in the back of the couch, but then she moved her back to the armrest of the couch.
[30] She cannot remember if she had a blanket or sheet on her or whether her father was sharing one with her.
[31] She had a gut feeling something bad was going to happen and she was nervous.
[32] He mentioned $3.00 and glass of milk after it happened.
[33] He touched her with his mouth.
[34] When he first started touching her she was confused and stayed still.
[35] K.A.L. does not remember the words. The show was still on. She did not see his head underneath the blanket. She was confused and stayed still and does not remember if she said anything. It lasted a couple of minutes not longer than 5 minutes.
[36] He used his tongue and she does not remember what she was doing. She does not remember saying anything. He mentioned the $3 and milk but there was no other talk when it was over.
[37] She does not remember watching the rest of the show. She never talked to him about the incident after that evening. She states she speaks about him touching her in an “inappropriate place” and confirmed that she was referencing her vagina.
[38] When she told J.G., she was 14 years old, they were playing games, and she trusted her and felt it was appropriate to tell her. It was very late at night and she was very tired. She told H.L. and then her mother. Her mother convinced her to go to the police. She did not want to tell the police as she did not want to be a burden to her family including her grandparents, aunts and uncles.
[39] Her mother told her that she cannot keep it to herself and needed others to help with this.
[40] In 2013, when her sister came forward to the police, she recalls being interviewed by the police. She did not tell the police as she was afraid to get her father into trouble and she was afraid that she would be taken away from her sisters, pets and her father and she was convinced that her mother was evil.
[41] The first time she disclosed it was to J.G. This inappropriate touching only happened once.
[42] Under cross-examination, she admitted that money was not a “huge point of conflict” with her father and she could help herself to milk anytime she wanted and it was not restricted.
[43] She also admitted that in her handwritten statement to the police she had written that the particular night of the alleged incident, her father was giving her a shower and washing her. After a long pause, K.A.L. said that is what she remembered. She was also referred to page 22 of the transcript where she said no one was in the shower and no one helped her.
[44] K.A.L. said the handwritten statement was wrong. But later stated that her father did help her wash when she was 10 years old.
J.G.
[45] In the summer of 2016, when she was 14 years old, K.A.L. revealed the alleged incident for the first time to J.G., a close friend.
[46] J. G. is now 17 years old and attending school and working part-time.
[47] She confirmed that she knew K.A.L. through her uncle who was dating K.A.L.’s mother years ago.
[48] J.G. has not had contact with K.A.L. recently.
[49] She testified that on one occasion she and K.A.L. were talking about stories from their childhood. They did not specify age ranges. Nothing spawned this conversation. They were having a sleepover at K.A.L.’s mother’s home.
[50] They felt comfortable talking to each other. They were downstairs in K.A.L.’s home either in her bedroom or her sister’s bedroom.
[51] The complainant told her that her father had touched her inappropriately when she was younger.
[52] K.A.L. told her that she did not feel comfortable during the incident and this had never happened before.
[53] J.G. spent time with K.A.L. at her mother’s place never at her father’s home.
[54] J.G. said that she “might have mentioned that I did not live with her dad and that might have got her thinking.”
[55] When asked in examination-in-chief of the words used by K.A.L. she stated: “I don’t remember” and “I don’t remember any further details of the conversation.”
[56] In cross-examination, she demonstrated with her arms and twirling her wrists around the front of her body from the chest to the hip area to describe how the complainant outlined where her father touched her body.
[57] In cross-examination she confirmed that it was the summer but does not recall the year, and she admitted that she became closer to K.A.L. in summer 2016.
[58] When prodded in cross-examination, she stated that K.A.L. mentioned that something similar had happened to her older sister H.L. (who is two years older) when she was younger.
[59] She may have been present when K.A.L. later spoke to her older sister H.L. about the incident but not when she spoke to her mother about it the next morning.
Defence Evidence
[60] P.L. gave evidence. He is 41 years old and on a disability pension due to a motor vehicle accident which occurred 2 years ago.
[61] He worked as a carpenter before his motor vehicle accident.
[62] He indicated that he and his wife, P.L., had 3 children, H.L., K.A.L. and V.L. Their first separation was in 2011 for one month when he moved out. They reconciled and separated for the final time in July 2012. He moved out. The mother was becoming aggressive with him and the children and the maternal grandfather. The last straw is when she attacked him, and he pushed her off.
[63] A couple of weeks later, she called and told him to take H.L., their oldest daughter as she could not handle her.
[64] He stayed temporarily in a shelter until he found a two-bedroom apartment on Draper Avenue where he stayed for five to six months.
[65] H.L. stayed in the master bedroom. There was a king size bed in the other room. He did not like sleeping in the big bed by himself. When he had the girls, K.A.L. and V.L. on Tuesday evenings and every weekend from Friday night to Monday morning, they would stay in that room.
[66] He slept on the couch even when K.A.L. and V.L. were not staying with him.
[67] He says that his blanket and pillows from the couch were put away each morning and he did not keep them on the couch as the children would fight over them or the dog would chew on them.
[68] He had a few rules at his home, “no fighting”, “clean up after yourself” and “dress respectfully”. He did not want to impose a lot of rules like the mother’s residence.
[69] He was not a fan of halter tops and if they wore dresses or skirts, they would have to wear shorts or pants or leggings underneath. He did not want them to be seen if they fell or were upside down. He does not bathe the girls. He would help them in the shower until 5 or 6 years old. At the time, he would have been still helping only V.L. in the shower.
[70] The routine on a Sunday in the fall of 2012 when he was at Draper apartment was the following: they would have dinner, and then the kids could do what they wanted. K.A.L. and he would like to watch The Walking Dead. V.L., although only 4 years old, would stay up late at times to 11:00 p.m. She would be around and sometimes would join them on the couch.
[71] On a typical Sunday night, H.L. would be in her room as she did not like The Walking Dead, the lights were on in the hallway, in the bathroom and there was a light from the computer. V.L. although young would be up late and would be in and out of the living room. The Walking Dead started at 9:00 p.m. and was on for an hour.
[72] The children had a regular allowances if they did their homework. K.A.L. really liked milk and was allowed to drink it anytime.
Analysis
J.G.’s evidence
[73] The Crown called her for the narrative of how the disclosure was brought forward and not for the purposes of a prior consistent statement as there is no allegation by the defence that there was any allegation of recent fabrication.
[74] The Defence invites the Court to review her evidence and note the inconsistencies with K.A.L.’s evidence. J.G. recalls that she was likely present when K.A.L. told her sister H.L. about the incident whereas K.A.L. said she was alone.
[75] It is significant that J.G. gestured with her hands from her chest to her hips stating that this is where K.A.L. had said that her father had inappropriately touched her on her body.
K.A.L.’s evidence
Legal Principles
[76] When assessing the complainant’s evidence, the Court is mindful of the various principles set out in the case law.
[77] Firstly, below I am assessing her evidence in light of the direction given by the Supreme Court of Canada in R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122.
[78] Where an adult witness is testifying about events that allegedly occurred when she was a child, her credibility ought to be assessed as an adult witness. However, the presence of inconsistencies, especially on peripheral matters, should be considered in the context of her age (approximately 10 years old) at the time of the alleged event. See supra. at para. 26. Adults and children perceive time differently.
[79] As stated by the Ontario Court of Appeal in R. v. Pindus, 2018 ONCA 55, at para. 37:
[37] As the trial judge observed, there were inconsistencies in C.R.’s evidence. But generally these inconsistencies related to peripheral matters, such as timing and sequence. These minor discrepancies could be expected. Also, when an adult witness gives evidence about events that took place in childhood, inconsistencies and lack of memory have to be considered in the context of the age of the witness at the time of the events. Secondly, the Court must avoid stereotypical myths which include the timing of the disclosure.
[80] Courts should be cautious about placing any weight on the fact that K.A.L. did not complain of the sexual assault in a timely way. This is based on a stereotype and assumes that victims react in a certain way. R. v. W. (R.), at para. 30.
[81] Also as stated by the Supreme Court of Canada, in R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65:
65 A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.
Assessment of K.A.L.’s evidence
[82] The manner of her testimony was not rehearsed but was given in a flat and detached manner. She gave her evidence in a matter of fact manner.
[83] During the video when asked about the alleged incident, the complainant was slow to answer and thought about her answers to the questions posed by the officer. This could be explained by her being embarrassed talking about it. The Court notes that when she spoke about the family members and who they were, her dialogue was free flowing without any hesitation.
[84] On consent, the Agreed Statement of Facts (Exhibit 2) was filed as evidence. It confirms that K.A.L. attended Grade 4 at Leslie Park Public Elementary School from September 2011 to June 2012 and attended there in Grade 5 from September 2012 to June 2013. These are the only dates that K.A.L. attended that school.
[85] Firstly, I do not place any weight on the fact that K.A.L. did not complain to anyone about the alleged incident until well afterwards and years later. Although, she may have had opportunities to disclose this incident to the CAS workers who were involved in her family at the time or in 2013 to the police when they were investigating allegations made by her older sister H.L. against her father, I do not place any weight on the fact that she did not disclose earlier. She indicated she was embarrassed and worried about the repercussions of such a disclosure. I accept this explanation.
[86] Secondly, the complainant, K.A.L., from her first disclosure in 2016, she has had various opportunities to explain what happened. She provided her own handwritten statement dated August 27, 2016 to the police, she was video-taped in an interview dated September 15, 2016 with Detective Jack Woods, she testified at the preliminary inquiry on December 17, 2018 and she gave her evidence on consent at the trial by CCTV with a support person present.
[87] Therefore, she has had an opportunity to relay the alleged offence on at least three (3) prior occasions.
[88] She did provide details in her evidence that were different from her previous statements or given at preliminary inquiry.
[89] As will be explained below, the totality of these inconsistencies affects the reliability and credibility of the complainant’s evidence.
[90] In cross-examination, there were a number of inconsistencies that were pointed out:
i) Page 22 of the transcript said that she took a shower by herself whereas, in her handwritten statement to the police she said her father helped her;
ii) For the first time, she disclosed the words that her father used. In cross-examination, she said that he asked to play a game more than once. Whereas on p. 23 of the transcript she said she could not recall the words but that he was “pestering her”. The recollection of these words that the father used “play a game” was the first time she said this. It was not disclosed in her handwritten statement to the police, not during her video, not at the preliminary inquiry nor in examination in chief at the trial; She said she was embarrassed to tell the officer in the videotaped session; She said she did not want to tell a stranger what happened as it made her uncomfortable to speak about the details and she wanted to give as few details as possible and spend as little time there as she needed with the officer;
iii) In her testimony at trial, she said he mentioned the $3.00 and glass of milk after the incident whereas in video (transcript, p. 21), she stated “and um, I kept saying no but then he’s like, “Oh, I’ll give you, um, three dollars and a glass of milk to do it.”. “And like I kept on saying no but he did it anyway and then, um, he sent me off to bed.”; During cross-examination, she said that he offered this treat before and during the alleged incident; In court she said that after the incident he told her about $3.00 and glass of milk on the nightstand;
iv) She did not recall him poking his head out in her oral testimony at trial but at p. 27 of the transcript, she said “ Well, he went under the blanket and like he poked his head out on the other side that was like on her….(indicating)…’cause I think it was up to here….(indicating).”
K.A.L.: Poked his head out and kept on saying, “Oh, I’m gonna do it.”. I think. I don’t know. So he went under. He…I don’t know. He did…..he did it to me and, um he got out. He told me to…..he gave the three dollars…he said…told me the three dollars and glass of milk were on the bedside table in the bedroom. And when I went in there I checked. There was like two….a toonie and four quarters and a small glass of milk on the nightstand right beside the bed.
The video shows her motions that her hands were on the upper chest of her body indicating where his head came out;
v) At the trial, she stated that her reaction to her father putting his head under the blanket was to stay still. This differs from her evidence at the preliminary hearing when she stated she was squirming and trying to move back but had no room to go as her back was on the armrest of the couch. In response to cross-examination, she stated she was trying to move backwards, but her back was against the armrest and she was trying to squirm backwards;
[91] Although the sequence of events that took place when she was approximately 10 years old now she is 18 years old, should be scrutinized differently as set out in R. v. W. (R.), my concern with K.A.L.’s evidence is her adding details that were not true.
[92] For example, she admitted that she told the officer that her father said “I am going to do it“ but admits that he did not say this but she only said it to the officer because she felt pressured by him to add more details. She said she did not want to let the officer down. She wanted to cooperate and give information that was accurate. When asked in cross-examination why did she for the first time mention the words that her father wanted to play a game, she mentioned that she was embarrassed.
[93] I do not expect her to remember timelines, the custody arrangement at the time, the visiting arrangements between the parents as she would have been only 10 years old.
Inconsistencies
[94] But the number of inconsistencies as set out below do lower the reliability of her evidence.
The number of inconsistencies between her testimony at trial and her previous statements and
also, the internal inconsistencies in her evidence do cause the Court to pause about the
complainant’s evidence.
[95] There is an internal inconsistency is that she said that milk was a treat for her at night because her father had imposed a rule of no milk at night to avoid her younger sister, V.L., from wetting the bed at night. Yet, her evidence was that the glass of milk was on the night table in V.L.’s bedroom presumably placed there by her father before they sat down on the couch when the alleged incident occurred. The glass of milk would have been in the proximity of V.L. who was not supposed to be drinking liquids near bedtime. She said her little sister “peed the bed a lot, so it would not be fair to have drinks at night when she was not allowed.” Yet, earlier in her testimony under cross-examination, she admitted that there was no restriction of herself having milk in the household.
[96] The issue of what he said to her before the alleged incident is an important inconsistency. In her video-statement, the examination-in-chief and at the preliminary hearing, she insisted that the words spoken by her father just made her feel something bad was going to happen. She could not remember the words spoken. Only in cross-examination at the trial for the first time did she say he said he wanted to play games.
[97] Also, she testified at trial that during the alleged assault she stayed still. To be clear, I am not judging her for how she reacted to the alleged incident. It is a stereotypical myth to suggest victims of sexual assault should react a certain way or resist the advances of the accused.
[98] Rather my concern is her inconsistency in the statements she provided as to how she reacted to his head going under the blanket. At the trial, she said she stayed still when his head went under the blanket. Yet at the preliminary inquiry, she said she reacted by squirming away but had nowhere to go because her back was up against the armrest of the couch.
[99] During the trial, she did not discuss her father poking his head out from under the blanket as she had explained during her videotaped interview.
[100] The defence invites the court to state that it was an internal inconsistency that the complainant revealed for the first time this disclosure to her closest friend late at night when they were disclosing to each other “secrets” and then after this disclosure sharing it with many family members. I do not find this necessarily inconsistent as this would impose an expectation of how complainants of sexual assault behave when disclosing.
P.L.’s evidence
[101] The Court must be faithful to the principle set out in R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 218 O.A.C. 37.)) At para. 53, the Court stated:
The trial judge’s analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant’s denial because stacked beside A.D.’s evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.
[102] The Crown is not required to point to something inherently contradictory or demonstrably false in the accused’s evidence in order for his evidence to be rejected.
[103] The verdict must not be based on a choice between the evidence of the accused and the Crown’s evidence. As stated by the Supreme Court of Canada in R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, this type of approach would undermine the presumption of innocence and the requirement of proof beyond a reasonable doubt.
W.D. analysis
[104] In his testimony, P.L. offered an outright denial that he had ever sexually assaulted K.A.L. or ever touched her in a sexual manner.
[105] Last time he saw the children before his interview was K.A.L.’s graduation from middle school in June 2016.
[106] Although it is a fundamental principle that an accused is not required to testify, where he chooses to do so, as P.L. did in this case, the law in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, requires that I take the following approach:
If I believe P.L.’s evidence that he did not commit the offences charged, I must find him not guilty;
Even if I do not believe P.L.’s evidence, if it leaves me with a reasonable doubt about his guilt, or an essential element of an offence with which he is charged, I must find him not guilty of that offence; and
Even if P.L.’s evidence does not leave me with a reasonable doubt of his guilt, or about an essential element of an offence with which he is charged, I may convict him only if the rest of the evidence that I do accept proves he is guilty of it beyond a reasonable doubt.
[107] P.L. was inconsistent on a number of major points. For the reasons set out below, I do not believe his evidence nor does his evidence leave me with a reasonable doubt.
Blanket
[108] In the examination-in-chief, he indicated that he slept on the couch in the living room because he did not like sleeping on the king size bed in the master bedroom. He would put away his blanket and pillow and not keep any blankets or pillows on the couch.
[109] In cross-examination, he admitted that K.A.L. would use a blanket and pillow.
[110] He permitted her to use it as it would be hers and the girls would not fight over them as they would if he left his own on the couch.
[111] In his taped interview with officer Jack Woods on October 24, 2016, he stated at p. 37 of the transcript that she would usually be dressed with pajamas, bottom and have a blanket and pillow. He admitted that this statement to the officer was true.
[112] What was most troubling in his evidence was his confusion between a typical Sunday night and then seeming to allude to a particular night.
[113] In cross-examination he admitted that he was asked what she wore in a typical Sunday night. He then used the words “that night..”
[114] When pressured under cross-examination that indeed he remembered the night that K.A.L. was talking about, he denied that he remembered that night.
[115] He appeared flustered during cross-examination and unsure about what he should say about the blanket.
[116] In re-examination he said she did not often use a blanket or pillow when watching The Walking Dead but this does not square up with what he told the officer was that on a typical night she would have a blanket.
[117] There are glaring contradictions as to whether she used her blanket or not on a regular basis on a typical Sunday night and whether he indeed recalls a specific night.
Alone with K.A.L.
[118] In his interview with the officer, he said at p. 37 of the transcript, that he was never alone with K.A.L. in the living room watching The Walking Dead.
[119] At trial, he admitted that he would be alone at times but that V.L. would come in and out of the living room.
Distancing himself
[120] His evidence that he had rules such as the requirement that the girls had to wear pajama bottoms or shorts underneath their pajamas, not wear his clothes and wear shorts/pants/leggings underneath skirts and dresses in the house or outside do suggest he is trying to distance himself from the alleged incident.
[121] It does appear implausible the need to wear shorts/pants/leggings in the comforts of one’s home.
All of the evidence
[122] However even though I do not believe his evidence and I do not find it leaves me with a reasonable doubt, when considering all the evidence, I am left with a reasonable doubt.
[123] A reasonable doubt is not a farfetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence.
[124] It is nearly impossible to prove anything with absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high. Proof beyond a reasonable doubt falls much closer to absolute certainty than to proof of probable or likely guilt.
[125] Even though her evidence was uncorroborated, it is important that her evidence as to its credibility and reliability be tested in light of all the other evidence presented and not assess individual items of evidence in isolation. See R. v. Morin (1988), 1988 CanLII 8 (SCC), 44 CCC 193 (S.C.C.).
[126] Although her description of what her father actually did to her, i.e. licked her vagina was consistent the numerous inconsistences affects her credibility and reliability.
[127] I have considered her internal consistencies, her inconsistencies between her testimony and her earlier statements including her evidence in chief compared to her evidence in cross-examinations. The inconsistencies are significant and not collateral.
[128] I have taken into consideration the circumstances surrounding the incident. Although credible in some respects of her testimony in the consistency of some elements, I am not convinced beyond a reasonable doubt that the incident occurred.
[129] Collectively, these considerations have left me with a reasonable doubt as to whether the alleged incident occurred. The accused’s evidence is to be considered in the context of all of the evidence. He confirmed there were no restrictions on drinking milk and that the children were provided with allowances and he bought items they requested.
[130] I do not hold the defence evidence to a higher level of scrutiny than the Crown’s case. It is not a choice between the Crown’s witness and that of the accused.
[131] This is not meant to rebuke the complainant. I think that something may have happened with the accused. But that is not enough in a criminal case. I do have reasonable doubt.
[132] The criminal standard of proof is a relatively high. This case does not meet the requirements for a finding of guilt.
Conclusion
[133] For the foregoing reasons, I find P.L. not guilty of the charges set out in the Indictment.
Justice A. Doyle
Released: September 30, 2020
COURT FILE NO.: CR-17-5024
DATE: 2020/09/30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
P.L.
Accused
REASONS FOR JUDGMENT
Justice A. Doyle
Released: September 30, 2020