Her Majesty the Queen v. W.L., 2021 ONSC 2529

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-1009/18

DATE: 2021-04-08

ONTARIO

BETWEEN:

HER MAJESTY THE QUEEN

– and –

W.L.

Accused

M. Ansell, for the Crown

N.A. Xynnis, for the Accused

HEARD: February 8, 9 and 10, 2021

REASONS FOR JUDGMENT

CORNELL, J.

Introduction

1The accused, W.L., is charged with committing a sexual assault on M.M. He is also charged with using his hand to touch M.M. for a sexual purpose at a time when she was under the age of 16 years.

2In accordance with the reasons that follow, I find the accused guilty on both counts.

Preliminary matters

3A publication ban was ordered pursuant to s. 486.4 of the Criminal Code.

4An order excluding witnesses was made, with the exception of the investigating officer.

5The Crown brought a similar fact application that was granted by me.

Admissions

6Jurisdiction, identity and date and time were admitted by the accused.

Background

7L.E. is the mother of M.M. W.L. and L.E. entered into a romantic relationship in August of 2013. The relationship continued until April 8, 2016. During that period of time, W.L. lived in L.E.’s residence. W.L. slept on the couch during the time that he lived there.

8During the period of time in question, L.E. was in receipt of a disability pension and did not work. Although W.L. testified about working in various occupations, the evidence indicates that during the period of time in question he did not work.

9The complainant, M.M., is L.E.’s daughter. She alleges that when she was nine years old, W.L. would come into her bedroom when her mother was away from the residence, pull down her pants and proceed to rub her vagina for a short period of time.

The Issues

10I am called upon to decide whether the accused sexually assaulted M.M. as she alleges. If I determine that the accused sexually assaulted M.M., I am further called upon to determine M.M.’s age at the time of such assaults.

Review of the Evidence

Evidence of M.M.

11M.M. disclosed to her father that W.L. had touched her inappropriately.

12On September 28, 2017, the police interviewed M.M. in order to obtain a statement pursuant to s. 715.1 of the Criminal Code. A voir dire was conducted to determine whether such statement was admissible. At the conclusion of the voir dire, I determined that the requirements of s. 715.1(1) had been met. M.M. was under 18 years of age at the time the offence is alleged to have taken place. A video was taken within a reasonable time of the alleged offence and detailed the acts that formed the basis of the charges. During the course of her testimony, M.M. adopted the contents of the video statement. Once it had been established that the requirements of s. 715.1 had been complied with, counsel agreed that the evidence that had been taken upon the voir dire would constitute trial evidence.

13In her video statement, M.M. started out by saying that “Billy is a bad guy”. She said that he was “mean”. While pointing to her crotch, she told the police officer that “he rubbed me right there”.

14M.M. said that, despite the fact that she liked sleeping on the bottom bunk more, she slept on the top bunk “because of Billy”.

15M.M. said that she “did not like it”.

16M.M. said to him “you’re a boy, I’m a girl, why do you do that to me?”

17M.M. told the police officer “I said nooooo”.

18Despite saying these things to him, M.M. said that W.L. ignored her and he “kept doing it”.

19M.M. said that the assaults always took place in her room on the bottom bunk. She said that the rubbing took place “where girls go tinkle”. She said that W.L. would put his hand “under my jeans” and that the touching was “freakin’ me out”.

20As matters progressed, M.M. said that W.L. would unzip her pants and pull them down. He would then proceed to rub her vagina, a word that she said she had learned in health class.

21M.M. said that the first time that this occurred, W.L. “barges into my room”. She then described how he proceeded to rub her vagina under her clothes. W.L. then proceeded to pull her jeans down and rub her vagina for a few minutes to the point that it hurt. This took place on a school day when it was dark, about 30 minutes before bedtime. Her mother was away from the residence when this took place.

22M.M. went on to say in her video statement that she was in Grade 4 and she was eight or nine years old when this happened. At the time that the video statement was taken, she said that she was in Grade 5.

23M.M. detailed two other occasions when she was sexually assaulted. On one such occasion, she attempted to keep the door closed, but W.L. was easily able to open the door. On another occasion, she attempted to hide on the top bunk in order to avoid W.L.. M.M. stated that W.L. told her to get down on the bottom bunk otherwise he said, “I will ground you”.

24On the occasion of the second and third assault, M.M. indicated in her statement that she told W.L. “don’t touch me” and “leave me alone”. Despite telling him this, she went on to say, “he still does it”.

25M.M. went on to say that when these incidents took place, she was in Grade 4 at St. David’s School.

26M.M. said that she was afraid of Billy because he had said to her on one occasion “I’m going to f’n backhand you”. She said that she was “scared to tell her mom”.

27M.M. described Billy as having black hair, no teeth, fake teeth, and that he smelled like cigarettes. She knew that his real name was W.

Evidence of L.E.

28When L.E. met W.L., he was “couch surfing”. She confirmed that in August of 2013 he came to live in her residence at which time he slept on the couch. She told him to leave on April 8, 2016, after she discovered that he had lied to and cheated on her. She testified that W.L. did not work during the time that he lived with her.

29L.E. testified that M.M. was a quiet child who spent most of her time in her room. According to L.E., W.L. helped her with childcare.

30L.E. said that there were many times when she would leave the residence in order to do laundry or go to the corner store. She said that she would be absent for five to ten minutes when she was doing laundry and more than ten minutes when she went to the corner store.

31L.E. testified that M.M. made the initial disclosure to her father, who then relayed the information to her. M.M.’s father had already called the police by the time he told L.E..

32During the course of cross-examination, L.E. was asked about an incident that resulted in the Children’s Aid Society (“C.A.S.”) becoming involved. After refusing to clean her room, M.M. had a tantrum at which time she threw herself on the floor, resulting in one or both of her legs being bruised. L.E. said that M.M. told the authorities that W.L. had hit her. L.E. said that M.M. later admitted that she had lied about W.L. hitting her. This occurred after M.M. had been taken into C.A.S. care for about one week. L.E. reported that M.M. said that she did this because she was mad at W.L. for telling her to clean up her room.

33L.E. said that there were many times when W.L. cared for M.M. L.E. testified that there were a few times when M.M. was “offish” and was not her usual bubbly self.

Evidence of W.L.

34W.L. was born on May 20, 1982. He said that he is single and has one son who is seven years old. He agreed that he and L.E. were once “boyfriend/girlfriend”. He acknowledged that he lived with L.E. for approximately three years.

35He said that he was alone with M.M. once or twice a week when L.E. would do laundry, go to the store or the mall.

36He denied ever touching M.M. for an improper purpose.

37During the course of cross-examination, he acknowledged that he was involved with M.M.’s childcare. He said that he would care for M.M. as a parent when L.E. was away. After the C.A.S. episode, he indicated that he was not involved with disciplining M.M.

Analysis

Assessment of Evidence

38A useful summary of the principles involved in the applicable approach can be found in R. v. Williams, 2010 ONSC 184, where Hill J. stated as follows:

56A determination of guilt or innocence in a criminal trial does not devolve into a credibility contest between witnesses. Such an approach would erode the presumption of innocence and the assigned burden of persuasion of proof beyond a reasonable doubt.

57Where credibility is a central issue in a trial, the court must be alert to the relationship between the assessment of credibility and the prosecution’s ultimate burden to prove guilt beyond a reasonable doubt. Mere disbelief of an accused’s evidence does not satisfy the burden of persuasion upon the Crown. The trier of fact must be satisfied on the whole of the evidence that there exists no reasonable doubt as to the guilt of the accused.

58A trier of fact, in assessing credibility, considers a variety of factors including the plausibility of evidence having regard to experience and common sense and inherent probabilities/improbabilities, inconsistencies within a witness’ evidence, how a witness’ version of events fits with other evidence in the case, the weight of testimony pointing in a particular direction, motive to fabricate, witness demeanour, etc.

39The accused has denied all of the allegations that have been made by M.M. A careful consideration of all of the evidence is required. In undertaking this exercise, I am mindful of the fact that I can believe some, none, or all of the evidence that has been offered by a witness. I am also mindful that I am to be guided by the approach mandated by R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

M.M.’s Allegations

40M.M. was able to recall the who, where, when and what details associated with the assaults.

Who

41M.M. said that it was W.L. who touched her “where girls go tinkle”.

Where

42M.M. testified that the assaults always took place in her bedroom on the lower bunk.

When

43M.M. said that the assaults always took place when her mother was away. The assaults always took place when it was dark and on a school day. This evidence is noteworthy given there was evidence to suggest that W.L. was often away from the residence on weekends.

44M.M. said that the assaults took place about 30 minutes before she would go to bed. This coincides with evidence that L.E. would go to the corner store to pick up pop or cigarettes for W.L., because according to L.E., “he was too lazy”.

What

45The nature of the assault was the same on all three occasions. As previously pointed out, M.M. began her statement by pointing to her crotch and saying, “he rubbed me right there”.

46After entering M.M.’s room when L.E. was away from the residence, W.L. would require M.M. to lay on the bottom bunk. He would place his hand down her pants and rub her vagina. He would remove her pants and underwear and proceed to rub her vagina for three or four minutes despite being told that she did not like it and that he should stop. W.L. would rub her vagina to the point that M.M. said that it became uncomfortable.

47The s. 715.1 video statement that was taken is to be treated as part of M.M.’s evidence in chief. During the course of that statement, M.M. was permitted to tell her story without any leading or other inappropriate questioning by the police officer. She readily responded to the questions. When she did not know the answer to a question, she made that known.

48M.M. was extensively questioned during the course of her cross-examination. There were many occasions during the course of such cross-examination that M.M. responded by saying “I don’t know” or “I don’t remember”. When asked about the C.A.S. incident, she said that she did not remember.

Similar Fact Evidence

49It has been determined that if admitted, similar fact evidence can be used for a wide variety of purposes.

50It has been held that similar fact evidence is admissible to show a specific propensity to engage in sexual misconduct with certain types of complainants in certain types of situations: See R. v. Titmus, 2004 BCCA 633, [2004] B.C.J. No. 2563, R. v. R.B., (2005), 2005 CanLII 30693 (ON CA), 77 O.R. (3d) 171 (C.A.) at para. 11, and R. v J.A.H., 1998 CanLII 14990 (BC CA), 124 C.C.C. (3d) 221, [1998] B.C.J. No. 725 (C.A.), at para. 18.

51A useful summary of the purpose for which similar act evidence can be admitted is found in R. v. R.E.L., 2013 ONSC 6292, [2013] O.J. No. 5683, where, at para. 42, Quigley J. said:

It is well established that the evidence may be admitted for the purpose of showing the existence of such a common pattern of behavior, (See R. v. M.B., [2008] O.J. No. 2358 (S.C.J.) at para. 39) or to demonstrate a specific propensity on the part of the accused, such as to use his status as a member of a family and the opportunity that may give him to molest underage family members in their own homes (see R. v. Finelli, [2008] O.J. No. 2242 (S.C.J.) at para. 27). As well, however, similar fact evidence may also be used to bolster the credibility of a complainant witness, particularly in a case like this of historical sexual assaults allegedly perpetrated decades earlier (see R. v Gelesz, [2002] O.J. No. 3883 (C.A.) at para. 2).

52This latter issue was also the subject matter of consideration by the Supreme Court of Canada in R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, 55 C.C.C. (3d) 1. In that case, it was alleged that the accused had engaged in sexual misconduct with his biological daughter when she was between the ages of 11 and 13. The Crown sought to introduce evidence that the accused had past sexual relations with the 15 year old daughter of his common-law wife. In considering the use of similar act evidence with respect to corroboration and findings of credibility in cases of this nature, McLachlin J. stated at para. 41:

As noted earlier, the probative value of similar fact evidence must be assessed in the context of other evidence in the case. In cases such as the present, which pit the word of the child alleged to have been sexually assaulted against the word of the accused, similar fact evidence may be useful on the central issue of credibility.

53W.L. stood trial on June 22 and 23, 2017 in connection with allegations that he sexually assaulted J.C.-G. On August 23, 2017, Thomas J. found W.L. guilty of sexual assault and sexual interference, the same charges that he faces in this proceeding. That decision was upheld on appeal. See R. v. L. 2019 ONSC 1812.

54It bears repeating that W.L. was required to leave L.E.’s residence on April 8, 2016. Thomas J. found that W.L. was living in a rooming house in June and July of 2016 at the time that he sexually assaulted J.C.-G.

55W.L. and J.C.-G.’s mother had previously been involved in a romantic relationship. They remained friends after that relationship ended.

56Thomas J. found as a fact that the complainant’s evidence was “rich in detail”. I will now set out some of those findings.

57J.C.-G. was attending summer camp in June and July of 2016. Her mother arranged for W.L. to babysit J.C.-G. from the time that camp ended until she had finished work in the evening. W.L. would take J.C.-G. to his room in the rooming house and have her lie on his bed. She would often fall asleep. On approximately five occasions, he proceeded to put his hand over her clothing and rub her vagina. There were times when he would put his hand down her pants and rub her vagina. There were occasions when there was skin to skin contact. J.C.-G. told W.L. to stop, but he did not.

58I admitted the similar fact evidence for a number of reasons. Both complainants were nine years of age when the assaults took place. The assaults on both complainants took place while they were required to lie on a bed. The assaults took place while W.L. was babysitting and while the complainants were completely under his control. The sexual assaults themselves consisted of rubbing the complainants’ vaginas and did not progress to any other sexual activity. The assaults were proximate in time, as the assaults on J.C.-G. took place shortly after he was required to leave L.E.’s residence.

59I accept and use the similar fact evidence to establish that W.L. had a specific propensity to engage in sexual activity that consisted of rubbing the vaginas of girls who were nine years of age or so, the conduct that is the subject matter of these proceedings. It is also of assistance in assessing M.M.’s credibility.

Collusion/Concoction

60In any case where similar fact evidence is considered, the court needs to be alert to the possibility that there was some collusion. In this case, the only thing that we know from J.C.-G.’s video statement is that she told a number of friends “a little bit” about what happened to her while she was at Keisha’s house. She listed a number of friends including someone named M. No surname was provided.

61M.M. admitted during the course of cross-examination that J.C.-G. is her best friend and that she sees her each day at school. When she was asked whether or not she had ever discussed these events with J.C.-G., she said that she didn’t think so and that she didn’t remember.

62During the preliminary inquiry, M.M. was asked “Did Julie tell you?”. Her answer was “I don’t remember”. Later on at the preliminary inquiry, M.M. was asked whether J.C.-G. told her about being hurt by anyone else and she answered by saying “I don’t know”.

63The only evidence from J.C.-G. video statement is that she told her friends, including someone by the name of M. “a little bit” about what had happened to her. M.M. doesn’t remember J.C.-G. discussing the matter with her. J.C.-G. was not called as a witness at this trial. Accordingly, based upon the evidence available to me, I conclude that there is no basis to find that M.M. and J.C.-G. engaged in collusion. Mere opportunity, absent more, is insufficient to establish collusion. See R. v. H. (D.) 2017 ONCA 258.

64Based upon my observations of M.M., it is fair to say that she functions at a basic level. When I consider all of the evidence and all of the circumstances, there is no evidentiary basis to find that M.M. concocted these allegations as a result of any information which may have been provided to her by J.C.-G.

Credibility/Reliability

65I now turn to an assessment of M.M.’s credibility and reliability.

66M.M. started out her video statement by saying that Billy was a bad guy and that he was mean. She followed this up by immediately saying that he rubbed me right there and pointed to her crotch.

67During the course of cross-examination, she said that she did not like W.L. because he hogged the T.V., he played country music, he swore at me and he threatened to “f’n backhand me”.

68I also need to consider the fact that L.E. gave evidence that M.M. had initially told the authorities that Billy had hit her prompting C.A.S. involvement. L.E. told us that M.M. later said that she had lied about this. As M.M. said that she had no memory of the C.A.S. incident, defence counsel was unable to obtain an admission from M.M. that she had, in fact, lied. The statements made by L.E. to the effect that M.M. admitted that she lied is not proof that she, in fact, did so. M.M. had been in the care of the C.A.S. for about a week when her story apparently changed. She may have changed her story in order to be able to go home. On the other hand, she may have been telling the truth when she said that she lied.

69The reality is I have no idea what M.M. told school authorities, the C.A.S. or the police. No witnesses were called from those organizations. No records were produced. M.M. has no memory of such event.

70The evidentiary record before me makes it impossible to determine whether she lied on that occasion or not. Crown counsel submits that even if she did lie on that occasion, she had reason to do so. W.L. was still living in the residence at that time. M.M. had made it clear that she was afraid of W.L. These circumstances do not form the basis to call M.M.’s credibility into question when it comes to the allegations before the court. Possible or alleged fabrication is insufficient. Proven fabrication has for greater relevancy. See R. v. Riley (1992), 1992 CanLII 7448 (ON CA), 11 O.R. (3d) 151; leave to appeal to S.C.C. refused (1993), 13 O.R. (3d) xvi (S.C.C.)

71M.M. said in her video statement and also during the course of her cross-examination that she does not have a good a memory sometimes. This was a candid admission on her part. The record of her cross-examination will reflect the fact that on many occasions, defence counsel was faced with an answer of “I don’t know” or “I don’t remember”. I have also considered the evidence from M.M. that W.L. was bad, mean and the other reasons that she put forward for not liking him. Despite such evidence, I have reached the conclusion that M.M. is a credible and reliable witness when it comes to the allegations of sexual assault. In coming to this conclusion, I have considered the plausibility of M.M.’s evidence. I have considered the fact there was corroboration of her evidence on virtually all of M.M.’s evidence except the assaults themselves. Her evidence was internally consistent. As previously set out, her evidence about the assaults themselves was detailed with precise descriptions of events.

72The evidence provided by M.M. in her video statement provided great detail about the sexual assaults. This included the who, what, where and when of such events as previously detailed. Despite a thorough cross-examination, her evidence about the sexual assaults remained consistent with the allegations made in the video statement.

73The events which formed the basis of the charges took place when she was nine years old. She was thirteen when she testified. It has been well established that a child’s ability to recall will be different than that of an adult. During cross-examination, M.M. said that she had a better memory of events when she gave her video statement. I accept this as an explanation of the various times that M.M. was unable to recall events at the preliminary hearing or the trial.

74This comes as no surprise. Section 715.1 of the Criminal Code was created with the purpose of assisting the trier of fact in receiving a full and candid account of the facts concerning the alleged offence. In R. v. F.(C.), [1999] 3 S.C.R. 1183, Justice Cory said:

(i)The purpose of s. 715.1

18 The interpretation of legislation will always be facilitated by a consideration of its aim or goal. In the case of R. v. L. (D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419, the constitutional validity of s. 715.1 was considered. The section was unanimously held to be constitutionally valid. Chief Justice Lamer, writing for six members of the Court, made this comment upon the aim and purpose of the section at p. 429:

By allowing for the videotaping of evidence under certain express conditions, s. 715.1 not only makes participation in the criminal justice system less stressful and traumatic for child and adolescent complainants, but also aids in the preservation of evidence and the discovery of truth.

19 It will be self-evident to every observant parent and to all who have worked closely with young people that children, even more than adults, will have a better recollection of events shortly after they occurred than they will some weeks, months or years later. The younger the child, the more pronounced will this be. Indeed, to state this simply expresses the observations of most Canadians. It is a common experience that anyone, and particularly children, will have a better recollection of events closer to their occurrence than he or she will later on. (See e.g., Rhona Finn and J. R. Spencer, “Do Children Forget Faster?”, [1991] Crim. L.R. 189, at p. 190.) It follows that the videotape which is made within a reasonable time after the alleged offence and which describes the act will almost inevitably reflect a more accurate recollection of events than will testimony given later at trial. Thus the section enhances the ability of a court to find the truth by preserving a very recent recollection of the event in question.

75I now turn to a consideration of W.L.’s testimony. I have a concern about the evidence that was offered by him.

76He lived with M.M. for more than three years. According to L.E., he did not work during that period of time. It is reasonable to expect that there would have been many opportunities for W.L. to be alone with M.M., yet he went to great pains to minimize that opportunity. He said that he was only alone with M.M. when L.E. would do the laundry and when she went to the corner store or the mall. In both cases, the amount of time that she was gone was quite short according to W.L. To a large extent, this evidence was confirmed by L.E. but the fact remains that W.L. had the opportunity to commit the sexual assaults given the circumstances described by M.M. as well as the brief nature of the assaults themselves.

W.(D.) Analysis

77According to W.(D.), I must acquit if I accept the evidence of the accused. After a careful consideration of all of the evidence, I am not prepared to do that.

78Under the second step in W.(D.), I must find an accused not guilty if, after a careful consideration of all of the evidence, I am unable to decide whom to believe. In such a case, the Crown would have failed to prove the accused’s guilt beyond a reasonable doubt. In this case, I accept the evidence offered by M.M. about the sexual assaults committed by W.L. The evidence offered by W.L. and the balance of the evidence available to me does not leave me in any doubt.

Conclusion

79After a careful consideration of all of the evidence, I am satisfied that the Crown has proven, beyond a reasonable doubt, that W.L. did sexually assault M.M. as alleged. I further find that W.L. did for a sexual purpose touch M.M. with his hand at a time when she was under the age of 16 years.

The Honourable Mr. Justice R. Dan Cornell