REASONS FOR JUDGEMENT
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: HER MAJESTY THE QUEEN,
AND:
gIUSEPPE AMODIO, Defendant
BEFORE: S.F. Dunphy J.
COUNSEL: Oslyn Braithwaite, for the Crown
Seth Weinstein, for the Defendant
HEARD at Toronto: December 14 – 16, 2020
Subject to Publication Ban pursuant to s. 486.4(2) Criminal Code
1Mr. Amodio is charged with sexual interference (s.151 Criminal Code) and sexual assault (s. 271 Criminal Code) with respect to the complainant, Ms. C.H., a 14-year old girl. At the relevant times, the accused was the common law spouse of the complainant’s mother and lived in the same house as the complainant.
2In summary, the complainant alleged that on several occasions between 2013 and 2016 the accused had lay down beside her while she was in bed and rubbed her vagina with his fingers and also that he licked her vagina on one of those occasions. After a hiatus of about two years, she alleged that the accused repeated this behaviour a last time in or about March 2018 when she was eleven years old, apologizing to her at the end of this last incident.
3The complainant told her father about these incidents in June 2018 while spending the weekend with him and police were contacted. She gave a detailed videotaped statement and these charges followed.
4The videotaped statement was introduced into evidence pursuant to s. 715.1 of the Criminal Code after being adopted by the complainant. Given the nature of this statement, I am ordering that no further use of that statement nor of the transcript of it shall be made without prior leave of the court notwithstanding that it has been made an exhibit.
Background facts
(a) Overview
5The accused is 56 years of age and has been operating an airline limousine company for twenty-two years. He has no prior criminal record.
6The complainant was born in 2006. Her father W.H. moved out of the family home in January 2013 and her parents’ divorce was finalized in November 2013. Both the complainant and her younger brother remained with their mother in the North Toronto family home as part of the divorce arrangements but spent alternate weekends with their father in Kitchener thereafter.
7Before moving into the family’s home in late August 2013, Mr. Amodio dated the complainant’s mother for several months. During this time, he came to know and develop a relationship with the complainant and her younger brother, stating that he tried to treat them both as his own. The complainant turned seven shortly after Mr. Amodio moved in with her mother.
8The main staircase of the family home leads to a landing with two smaller flights of stairs branching off in opposite directions: one flight leading to the master bedroom and the other leading to the other three bedrooms and two bathrooms on the floor. The complainant had her own bedroom connected by a door to the main bathroom on the floor. Her younger brother also had his own room. The result is that the master bedroom was separated from the bedroom of the children by the landing and two short flights of stairs.
9The complainant described two separate incidents involving the accused that she could distinctly recall taking place in this bedroom but said that there were several other similar instances that she could not remember distinctly.
10In 2016, the complainant changed bedrooms but remained on the second floor in the part separated from the master bedroom as I described. The accused and the complainant’s mother had a child together the previous year and the baby was being moved into the complainant’s old room.
11The complainant alleges that there were no further incidents of sexual touching by the accused after she changed bedrooms and for about two years thereafter. I shall review her evidence of what she said was the last incident below. She placed this incident in or about March 2018.
12The complainant did not tell anyone about any of the incidents she described before June 2018. As noted, she told her father and within two days had given a detailed video statement to Family and Child Services in Kitchener on June 12, 2018 which led to the charges currently faced by Mr. Amodio.
13Mr. Amodio no longer lives in the family home and is no longer in a relationship with the complainant’s mother.
(b) The first series of incidents – the first bedroom
14At the outset of the June 12, 2018 interview, Ms. C.H. was asked by the Family and Child Services worker to explain why she came to talk to her that day. Ms. C.H. said that her mom’s boyfriend has “been touching me inappropriately and it’s really uncomfortable”. When asked to expand upon this, she said that it had started when she was younger and she could not really remember. She was then asked to tell about the first time that she could remember. What follows is a summary of her account of that incident, an incident that she was clear was not necessarily the first time such touching occurred but was merely the first one about which she had a distinct memory:
Mr. Amodio came into her room when she was in her old bedroom (prior to moving in 2016). She was lying down trying to fall asleep and he lay down beside her until she fell asleep “because that’s what they used to do when I was younger”. She remembered that he then started touching her by putting his fingers into her underwear. He started rubbing her vagina up and down saying things like “how does that feel?” and “is that good?” and she told him “I don’t know” because she just wanted to go to sleep. On other occasions she remembered telling him that she had to go to the bathroom to get him to stop. This time she thinks that she just said “Okay, good night Joe” and he then stopped, said good night and left.
(c) The March 2018 incident
15Following the birth of Ms. C.H.’s baby brother, it was decided that Ms. C.H. should change bedrooms. This happened in 2016. Ms. C.H. said that after she changed rooms, there were no further incidents of Mr. Amodio touching her in an inappropriate manner for about two years. She said that she thought that he had changed.
16In about March 2018, she said that a last incident occurred. She was uncertain of the timing beyond saying that it was between two and four months prior to her June 2018 statement. The following is a summary of her account of that incident:
After being put to bed, she called out to Mr. Amodio and asked him to lay next to her while she fell asleep. This was something her mother sometimes did. He came to lie down beside her in bed and she, on her stomach and facing the other way, tried to fall asleep. After a time, the accused asked her to spread her legs and she told him “no, I just want to go to bed”. He then brought his fingers down to her vagina from behind and started to rub her vagina as he used to do. She described this as rubbing in circles up and down. She was surprised when he started this because she thought he had changed. She said “good night Joe” to try to make him leave and he responded “I thought you wanted me to, like, rub it till you fell asleep”. After she said no, she just wanted to go to sleep, Mr. Amodio left. A few minutes later – it may have been as many as twenty – Mr. Amodio came back to the room and said that he was sorry for doing that. He asked Ms. C.H. if she was mad at him or hated him and she told him no. She believes her mother was in her office downstairs attending a regular seminar while this occurred.
17This was the first and last incident in the new bedroom.
(d) The licking incident
18I have deliberately placed my summary of the evidence regarding the so-called “licking incident” out of chronological order because I am following the order of the complainant’s description of these incidents in her June 12, 2018 videotaped statement. This next incident she described took place in her old bedroom which means before 2016. She was not able to pin down the timing more than this. She could not recall if her mother was pregnant with her youngest brother at the time.
19At this point in her June 12, 2018 statement, she had given a full description of the two incidents of sexual touching about which she had a specific memory. Both of these involved the use of Mr. Amodio’s fingers. Ms. C.H. was asked if there had been any other kind of touching.
20The effect of this question on her was both sudden and electric. She became visibly distressed and took some time to compose herself and provide an answer. The question clearly took her by surprise and brought forward a memory that she had not expected to talk about. She said that the accused had tried to “lick it” and could only gesture to her pubic area when asked what he tried to lick.
21She said that he pulled down her pants and underwear and she was very uncomfortable and told him “Joe, can I just go?”. When asked to go into more detail, she said that he had come into the room and lay down beside her. He put his hands under her pants and started to rub her vagina asking her “how does that feel?”. She does not know what happened next beyond that he started licking her vagina while she was just lying down. She was not sure if Mr. Amodio was lying down or kneeling when he did this. She told him “Joe, can I go to bed now”" and after a while he stopped and left. This was the only time that she said Mr. Amodio licked her vagina.
(e) Relationship between complainant and accused
22Both Mr. Amodio and Ms. C.H. described life in the family home in 2017 and the first half of 2018 as being very stressful and filled with conflict. Mr. Amodio’s strict style of parenting resulted in frequent clashes with Ms. C.H. and also with her younger brother. Points of friction included failing to follow rules about making beds or picking up toys. In the case of Ms. C.H. an increasing source of friction was her use of the cell phone her father had given to her when forbidden to use it by Mr. Amodio.
23The evidence of Ms. C.H. and Mr. Amodio both concur that tensions in the house were rising in 2017 and 2018. Mr. Amodio was prone to yelling at the children when he perceived his rules as being broken and this occurred several times per week sometimes. The complainant’s mother would often intervene to take the side of her children resulting in further rows between the two adults in front of the children. On at least one occasion, the fighting reached the point where the children and their mother went to a neighbour’s house and her mother called police.
(f) The revelation of the complaint
24The custody arrangements between Ms. C.H.’s parents were such that she spent every second weekend at her father’s home in Kitchener. There she lived with her father’s wife and their children. Her step-sister, although two years older than she, was a very fast friend. As stressful and full of conflict as her life with her mother and the accused had become in the months prior to June 2018, it appeared that her life with her father was a relative haven of tranquility. She got along well with her step-mother and had formed a close bond with her older step-sister and some of her friends.
25In the months prior to going to police, Ms. C.H. had expressed the desire to come and live with her father. She was scheduled to be spending a good part of the summer vacation there and her father told her that he would have discussions with her mother about what to do after that.
26On Sunday evening, June 10, 2018, Ms. C.H. was supposed to be heading back to her mother’s home in Toronto. She told her father that she would not go and was told that if she did not, the police would soon be at his door to get her. On hearing this, Ms. C.H. told her father that she wanted to talk to the police. She was visibly upset but did not want to tell her father and step-mother why.
27The dam burst. She told them in a few short minutes a very high level description of what the accused had done. According to her father, she was very emotional, bawling and the entire discussion about what happened lasted only a few minutes. He immediately texted his former wife to tell her that Ms. C.H. would not be coming home that night and that police should be contacted to investigate.
28There was some delay in arranging to have her statement taken due to her residence in Toronto and presence in Kitchener. This was eventually sorted out and she gave her statement on Tuesday June 12, 2018. That videotaped statement is the statement that was made an exhibit at this trial pursuant to s. 715.1 of the Criminal Code.
(g) The evidence of the accused
29Mr. Amodio described how he tried to forge a relationship with the complainant and her younger brother while dating their mother in the months before he moved into the family home in August 2013. He took them for various lunches and dinners and saw them several times per week.
30He described his parenting style after he moved in as being very strict, admitting that he tended to get quite upset at the children if they did not follow the rules he laid down in matters such as neatness, putting toys away or doing homework. When he got upset at them, he tended to do some yelling, describing the volume as being sometimes near eight or nine out of ten.
31As the complainant got older, clashes with Mr. Amodio grew more frequent. In 2017 or 2018 he said that his relationship with her grew strained and the shouting sometimes rose to a level of nine and one-half or even ten out of ten. This also impacted his relationship with their mother and the two of them often yelled and screamed at each other in front of the children as often as four and five times per week.
32The complainant told her father of these incidents on a Sunday evening in early June 2018. Mr. Amodio described a very intense clash that he had with Ms. C.H. on the Monday prior to this. The subject was once again her use of the cell phone which appears to have been a constant issue between them. Mr. Amodio took her phone from her for three days over her very strong objections. He said that he threatened to take her into his car for a drive on the 401 so she could watch him throw it out the window to be crushed by a transport trailer. Ms. C.H. did not remember the incident when questioned at trial but allowed that similar incidents did occur with some frequency.
33Finally, the accused was asked if he had ever put his fingers on the complainant’s vagina or licker her vagina, both of which suggestions he very forcibly denied.
Issues to be decided
34The essential elements of the crime of sexual interference are (i) that the complainant was under sixteen years of age at the time; (ii) that the accused touched her; and (iii) that the touching was for a sexual purpose. The complainant in this case is and was under the age of sixteen at all material times. The events described by the complainant taking place in her old bedroom and the one event in her new bedroom all involved deliberate touching by the accused of an unmistakably sexual nature.
35The essential elements of the crime of sexual assault are (i) an intentional application of force by the accused to the complainant; (ii) the lack of consent of the complainant to such application of force; (iii) the knowledge of the accused that no consent existed; and (iv) that such intentional application of force took place in circumstances of a sexual nature. Once again, the events described by the complainant unquestionably describe multiple sexual assaults proof of any one of which would be sufficient to sustain the charge. The incidents of touching and the one incident of licking she described were each certainly deliberate, non-accidental events. The age of the complainant precludes any question of consent or question as to the knowledge of the accused regarding the impossibility of consent. The complainant was to the certain knowledge of the accused below the age of consent at all material times. The circumstances of the touching – rubbing her vagina and in one case licking it – are also unmistakably circumstances of a sexual nature.
36The issue to be decided is thus whether the Crown has proved beyond a reasonable doubt that one or more of the incidents described by the complainant took place substantially in the manner she described them having regard to the essential elements as I have described them above.
Analysis and discussion
37This case is a quintessential R. v. W(D)1 case. If accepted by me, Mr. Amodio’s testimony certainly absolves him of any responsibility for any of the charges. He testified that none of the alleged incidents ever occurred. If I accept his evidence on this point, he is entitled to be acquitted. If I don’t know whom to believe, I must acquit. If I don’t accept some or all of his evidence but it leaves me with a reasonable doubt as to his guilt on any of the charges, Mr. Amodio must be acquitted. Even if I accept none of his evidence about the incidents or it fails to raise a reasonable doubt, I must nevertheless carefully review all of the evidence I do accept to assess whether the Crown has discharged its burden to prove all of the essential elements of each charge beyond a reasonable doubt.
38While the facts here are quite starkly binary – one or more of the events did or did not occur - the W(D) test is intended to ensure that the assessment of credibility is not. By this I mean that the proper application of the criminal burden of proof intentionally steers the fact-finding process away from the natural human tendency to pick one of two conflicting accounts. “I don’t know” is an acceptable outcome of this analytical process and that simple plain English phrase translates into the technical legal term of “not guilty”.
39The other important take-away from the W(D) framework is the idea that the assessment of evidence is not undertaken in a vacuum. The evidence of the accused is not assessed in isolation any more than that of the complainant is. All of the evidence must be examined in its proper context to assess what findings if any can be made and with what level of confidence.
40Finally, I should direct some comments on the manner in which the evidence of children is to be assessed. As a result of reforms in the 1980’s, common law and statutory rules treating children’s evidence as less reliable or requiring corroboration have been removed. In R. v. W. (R.), 1992 56 (SCC), [1992] 2 SCR 122 the Supreme Court confirmed that these reforms do not mean that children’s evidence is subject to a lesser standard than the evidence of an adult. However, when assessing the evidence of a child, certain common-sense observations should be kept in mind. These common-sense guidelines include assessing the evidence of a child with regard to the age and maturity of the child at the time the observations are made and at the time the evidence is given. In the present case, Ms. C.H. has described events that occurred when she was eight and nine years of age and then again when she was eleven. She described them when she was eleven (the original police statement), when she was twelve (the preliminary inquiry spread over two days in June and August) and when she was fourteen (at trial before me). Another common-sense guideline to bear in mind is that the perceptions of a child at different ages as to what is memorable and what is mundane will not necessarily be the same as those of an adult. These observations need no elaboration to anyone who has raised children or spent time in their company.
(i) Evidence of the accused
41I shall begin my assessment with my comments regarding the evidence of the accused. The task is not an easy one. While the accused does not have a burden of proof to discharge, the facts that his evidence is intended to support are essentially negative facts: that none of the incidents actually occurred. The issue here is not “who did it” but whether “it” occurred at all.
42Mr. Amodio denied that he ever touched the complainant in the manner suggested. He did so firmly and without hesitation. There is nothing in the manner in which he gave his evidence nor in any of the circumstances he described that gave me any cause to doubt his sincerity. He admitted his role in the high tensions that prevailed in the house prior to June 2018. He admitted that he did in fact lie down beside the complainant on occasion much as she described it, although denying strongly that any inappropriate touching occurred. He admitted that he would have been able to hear someone else approaching the room when he did so. He might have downplayed or denied any of these with little fear of contradiction. He did not.
43Mr. Amodio’s evidence was internally consistent and contradicted by no other evidence save that of the complainant. It was also entirely exculpatory.
(ii) Evidence of Complainant
44I found the complainant to be a very careful and credible witness. These comments apply equally to her appearance before me as a 14-year old girl and in her videotaped statement from 2018 when she was eleven years old. When she did not know if something was true, she said so. When she was expressing something she thought was true but could not be sure, she said so. It would be a good thing if more adult witnesses were as careful and thoughtful in their answers as she.
45I did not find her evidence regarding the accused to be tainted by malice on her part.
46There is no doubt that the atmosphere in the family home was a tense one in June 2018 and that the Ms. C.H. had expressed the desire to live with her father for a while. A significant contributing factor to this desire of hers was certainly a desire to distance herself from her mother’s boyfriend – the accused - with whom she was in frequent and loud conflict. I cannot find that this state of affairs can be elevated as high as a motive to fabricate an untrue story. There was no trace of such animus to be detected in her June 2018 videotaped statement. At trial, I found that Ms. C.H. made no effort at all to “gild the lily” when describing her relationship with the accused. While she did not confirm Mr. Amodio’s evidence of a particularly violent clash in the week prior to her telling her story to police, she readily admitted that clashes of the sort described happened regularly and could have happened that week as well. Similarly, she volunteered that Mr. Amodio returned to her bedroom after the last incident in March 2018 and said that he was sorry.
47I did not find that her evidence was generic and lacked sufficient detail to be credible.
48Her video statement in particular had significant levels of detail. Her evidence on that occasion was given after professional questioning with few suggestion or leading questions asked. The words that she attributed to the accused in that statement were both entirely believable coming from the mouth of an adult in that situation and quite unlikely to be the sort of language that an eleven year old might imagine unaided. I do agree with the defence that the complainant did appear to retreat into an “I don’t remember” shell, particularly as cross-examination wore on and on with repeated questioning on details that she no doubt took as being minute and insignificant. I do not infer from that any attempt to avoid probing questions that might reveal inconsistencies in repeating a potentially invented story. Rather, it appeared to me that she was simply exhausted by the stressful process of testifying at such length about such details as the colour or style of pyjamas worn on a particular night six or eight years ago.
49I found no inconsistencies in her evidence.
50The defence sought to find inconsistencies between answers given to leading questions about matters such as whether a door was open at the preliminary inquiry and slightly different answers given at trial preceded by a clear statement that she did not remember but ventured what she thought was true but could not be sure. Such answers were certainly cautious but hardly indicative of dishonesty. Further, the weight to be given the third or fourth “yes” to a string of leading questions posed to a twelve year-old undergoing hours of cross-examination is questionable at all events.
51I was also asked to conclude that the evidence of the complainant that the accused had penetrated her vagina with his fingers given at the preliminary inquiry was contradicted by her denial of penetration at trial. Ms. C.H. explained this apparent inconsistency in a very straightforward and entirely believable manner. She was twelve years old at the time she gave that evidence and did not appreciate that there was any further place for fingers to go even if the fourteen year old Ms. C.H. now did. This is all the more understandable if one bears in mind that the eleven year old Ms. C.H. who gave the videotaped statement described her vagina as being the entire area of her “private parts” rather than the opening at the base of her vulva as a medical doctor might describe it. To such a girl lying on her stomach when the event in question occurred, she could well have described the accused fingers as “penetrating” when they came from the back and parted her labia. Such a misunderstanding between adult questioner and child witness cannot be laid at the feet of the child for failing to ask for clarification of a question that she did not know was ambiguous.
52There was nothing improbable or implausible in Ms. C.H.’s evidence.
53Her evidence about the licking incident in the videotaped statement was clearly not something that she had planned on saying. There was nothing improbable or rehearsed about this account. It had the strong ring of truth about it.
54Details of the other incidents also had the ring of truth to them.
55She said that she had called the accused into her room to lie with her until she fell asleep as her mother sometimes did at the time of the March 2018 incident. The accused agreed that she sometimes asked him to do this. She said that she did not think he would try to touch her again because he hadn’t done so in two years. She lay on her stomach and kept her legs closed but he nevertheless managed to get his fingers on to her vagina by coming from behind – something she had not experienced before and that surprised her. She described him as coming back and apologizing for this behaviour. Again, this description has the ring of truth to it.
(iii) Conclusion re credibility
56Judges are neither omniscient nor magicians. The criminal standard of proof is set as high as it is set in our society for a very particular reason. It reflects a social choice to tolerate some crime going unpunished before allowing innocent people to be wrongly convicted. Even still, as with any system administered by fallible humans, our system is not perfect. Wrongful convictions do sometimes occur. From this realization, a certain level of judicial humility is called for especially in difficult cases such as this.
57Sexual assault in general and sexual assault of minors in particular raises these issues in the most terrible way. The nature of these crimes is that there is very often no forensic evidence of any kind and there are no witnesses save the accused and his or her victim. These are also the type of crimes where society’s interest in protecting some of its most vulnerable members is at its highest and most acute.
58Ms. C.H. has told her story powerfully and believably. She withstood hours of grueling cross-examination with poise and grace. There is no part of her story that I find unworthy of belief and I remain in awe of her bravery in telling it.
59I cannot and do not discount her evidence because of her age. It is not the law that a child’s evidence must be corroborated. However, I am not entitled to privilege her evidence with a presumption of belief either. While I must receive her evidence fully conscious of her age and the common-sense differences that exist in the way people record and convey memories of events at different points in their lives, at the end of the day the complainant’s evidence and that of the accused must be weighed in the same balance and by the same standards.
60On the central question before me – whether some or all of these incidents occurred substantially as Ms. C.H. described them – the accounts of the complainant and of the accused directly contradict each other. They cannot both be true. In these circumstances, the complainant’s evidence must convince me that the evidence of the accused cannot be true for if I have any reasonable doubt that the evidence of the accused may be true, my duty is to acquit him. It is not enough that one account should appear more likely true than the other.
61This then is the thoroughly unsatisfactory place that the law compels me to go. I cannot do more in this case than to observe that the Crown has failed to prove its case beyond a reasonable doubt. As strong and convincing as the complainant’s evidence has been, I cannot conclude that Mr. Amodio’s evidence does not at least raise a reasonable doubt. It does.
Disposition
62For the foregoing reasons, a verdict of Not Guilty shall be entered on both counts..
S.F. Dunphy J.
Date: December 17, 2020
Footnotes
- 1991 93 (SCC), [1991] 1 S.C.R. 742