REASONS FOR JUDGMENT on summary conviction appeal
COURT FILE NO.: CR-19-YO78
DATE: 20210118
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. L.D.
BEFORE: CM Smith, J
COUNSEL: Kelly Eberhard, Counsel for the Crown/Appellant
David McFadden, Counsel for the Respondent, L.D.
HEARD: December 10, 2020
[1] The Crown appeals the decision of the trial judge, Madam Justice Broderick, who dismissed the charge against the respondent. The Crown seeks an order allowing the appeal and substituting a finding of guilt with dispositions to follow.
[2] The respondent submits that the trial judge made no errors in law and the appeal should therefore be dismissed.
Background
[3] The respondent, L.D., is a young person, born on September 17th, 2005. At the time of the alleged offence, being June 2018, the respondent was 13 years of age. He was 14 years of age at the time of the trial. The respondent was charged with one count of sexual assault contrary to s. 271 of the Criminal Code of Canada, (“the Code”), as a result of allegations made by the complainant in this matter.
[4] The complaint was 6 years old at the time of the alleged offence and 7 years old at the time of the trial. She is the respondent’s stepsister. Both the complainant and her mother, who is the adoptive mother of the respondent, testified for the Crown at the trial.
The evidence at trial
[5] The complainant testified at the trial pursuant to the provisions of s. 715.1 of the Criminal Code. In the course of her adopted video statement given to the police the complainant alleged that she was in bed at a time when her older sister and the respondent were with her in the room. She said the respondent came into her room to show her a magic trick. The complaint alleges that after the magic trick her older sister left the room to get a snack. At that point, the respondent started to hump her and wanted her to pull down her pants. He then wanted her to “marry kiss him”, put her tongue in his mouth, touch his penis and “wanted it in her privates”. She also described the complainant touching her body with his penis.
[6] During the course of her direct examination at trial, the complainant gave conflicting accounts of how her pants were actually taken down to her knees, saying at one point that the respondent had lowered her pants while at another point saying she could not remember. She also initially described the humping as the respondent being on top of her with his bare penis touching her vagina however, she subsequently testified that she forgot what she meant by the word “humping”.
[7] In the course of her testimony at trial, the complainant also confirmed that the respondent was on top of her when he humped her however, in the course of an interview with a CAS worker shortly after the events in question, she described herself being on top of the respondent during the humping. The handwritten notes of the CAS worker regarding that exchange were admitted into evidence by way of an agreed statement of facts. Those notes do not include anything to suggest the complainant made any reference to whether or not the respondent’s penis ever touched her body.
[8] The incident ended when the complainant's older sister returned to the room whereupon the respondent left.
[9] During cross-examination, the complainant could not remember the respondent doing any magic tricks nor could she remember how long her older sister was gone from the room. She also agreed with counsel's suggestion that she had told the CAS in her interview that the respondent forced her to pull her pants down however, shortly thereafter she stated that she forgot if the respondent made her pull her pants down and indeed had forgotten most of what she had told the CAS in her statement.
[10] In the course of her cross-examination, the complainant also confirmed that the respondent was on top of her during the humping.
[11] The complainant's mother also testified during the trial. In the course of her evidence, she advised that the complainant told her the morning after that something had happened to her the night before however the complainant had never gone into details about exactly what happened between her and the respondent on the occasion in question.
[12] The complainant's mother was also able to confirm that the complainant’s older sister did come downstairs for a few minutes on the night in question in order to get a snack, however she was unable to say exactly how long that took.
Position of the parties
(a) Appellant
[13] The appellant takes the position that the trial judge committed an error in law by not correctly applying a common-sense approach to the evidence of a child, particularly when considering internal inconsistencies in that evidence, and instead relied on stereotypes by not considering the strengths and weaknesses which characterized the evidence offered in the case.
[14] The appellant further submits that the trial judge engaged in assumption and conjecture when considering the evidence regarding the period of time that elapsed while the complainant's older sister was out of the room.
[15] Lastly, the appellant submits that the trial judge applied stereotypes and myths when considering the fact that the complainant may have made an inconsistent statement in that she did not say anything to the CAS worker about the respondent’s penis touching her body.
(b) Respondent
[16] The respondent submits that this case is essentially a matter of credibility/reliability, which is a factual determination for the trial judge. The respondent submits that the determination of that issue is entitled to great deference.
Issues
Did the trial judge fail to apply a common-sense approach to the evidence of a child by applying too critical an approach to that child's evidence?
Did the trial judge engage in assumption and conjecture when considering the issue of the amount of time the complainant's older sister spent out of the room?
Did the trial judge engage in stereotypes and myths when considering whether the complainant’s evidence was internally inconsistent or was simply a matter of delayed or incremental disclosure?
Analysis
- Did the trial judge fail to apply a common-sense approach to the evidence of a child by applying too critical an approach to that child's evidence?
[17] The trial judge in this matter commenced her reasons for judgment by instructing herself on the onus of proof and the fact that the Crown must prove its case beyond a reasonable doubt. She also instructed herself that probable or likely guilt is not proof of guilt beyond a reasonable doubt and in doing so relied on the decision of the Supreme Court of Canada in the case of R. v. Lifchus, 1997 319 (SCC), [1997] 3 SCR 320.
[18] The trial judge also observed that the case requires an assessment of the credibility and reliability of all of the evidence not just the evidence of the complainant taken in isolation. In other words, “whether on the whole of the evidence the court is satisfied of [the respondent’s] guilt beyond a reasonable doubt”; see Reasons for Judgment, page 3, line 19.
[19] Credibility and reliability are different concepts. Credibility involves the veracity or truthfulness of a witness. Reliability involves the accuracy of the witness’s testimony which requires an assessment by the trier of fact of that witness’s ability to accurately observe, recall and recount: see R. v. H.C., 2009 ONCA 56.
[20] Credibility and reliability are both factual determinations falling within the purview of the trial judge, who after all has the ability to hear and observe the witnesses. That being the case the assessment of the trial judge on matters of this nature is owed great deference by an appellate court.
[21] At the time of her testimony in the trial of this matter, the complainant was seven years of age. The trial judge was therefore obliged to instruct herself on the law regarding the evidence of a child witness which she did at some length commencing at page 11 of her Reasons for Judgment. In the course of her analysis of that issue, the trial judge quoted extensively from two Supreme Court of Canada authorities, being the case of R. v. B.G., 1990 7308 (SCC), [1990] 2 SCR 30 and the case of R. v. W.R., 1992 56 (SCC), [1992] 2 SCR 122. Both cases stand for the proposition that flaws and inconsistencies in a child's evidence should not necessarily be treated in the same manner as would be the case with the evidence of an adult. Both cases also stand for the proposition there is no requirement that a child's evidence be corroborated, and the trial judge must not automatically discount a child's evidence without regard to the circumstances of the case: see W.R. at paragraph 23.
[22] The trial judge then went on to observe that while it is important to appreciate that young witnesses may not be able to recall aspects of the case in the same detail as an adult might the child's evidence is still subject to the same standard of proof as the evidence of an adult in a criminal proceeding. The Crown’s burden of proof beyond a reasonable doubt is not lowered.
[23] The trial judge then went on to consider a number of inconsistencies in the complainant’s evidence regarding the alleged incident. The first of these inconsistencies involved the complainant telling the CAS worker the respondent made her pull down her pants whereas in her subsequent statement to the police the complainant said that the respondent pulled her pants down to her knees. The second of these inconsistencies involved her telling the CAS worker that she was on top of the respondent [L.D.] when they were in the bed together, whereas at trial she testified that “[L.D.] was on top of me”. Third, the complainant repeatedly told the police and the CAS worker that she was wearing “pants” on the occasion in question however at trial she used the word “shorts”. The trial judge had this to say about these inconsistencies at page 14, line 11 of her Reasons for Judgment:
These inconsistencies are not, in my view, minor or non-material. They are, indeed, significant in that they are in relation to the incident itself.
[24] In my opinion, that is an entirely appropriate observation in the circumstances of this particular case. Those are legitimate material inconsistencies in the complainant’s evidence, which the appellant concedes. The trial judge was fully entitled to take those inconsistencies into account when assessing the strengths and weaknesses of the complainant’s testimony and her overall reliability.
[25] The trial judge recognized that the age of the complainant required a consideration of the law concerning child witnesses. She identified and considered the appropriate law on the point, and then applied that law to the facts of this particular case in order to reach her conclusion. In my view, there is nothing about the path the trial judge took that warrants appellate intervention.
- Did the trial judge engage in assumption and conjecture when considering the issue of the amount of time the complainant's older sister spent out of the room?
[26] In the penultimate paragraph of her Reasons for Judgment, the trial judge expressed some concerns she had about the complainant’s evidence regarding the length of time the events in question took as compared to the length of time her sister was out of the room. I include that paragraph in its entirety for ease of reference;
Next, [the complainant] described that [L.D.] was in her room for five to 10 minutes and that in that time he did a magic trick by disappearing under the covers and falling onto the floor, that he made her take her pants down and he removed his pants and that he humped her. She was clear that it was when he heard [the complainant’s sister] coming up that [L.D.] jumped up from the bed and went quickly to his room. [The complainant’s mother] testified that although she could not say exactly how many minutes that [the complainant’s sister] was downstairs, it was long enough for her to get a snack and go back upstairs. I have concerns regarding the time period that [the complainant] says that [L.D.] was in her room in light of her mother's evidence. I am also concerned as to whether there was sufficient time between [the complainant’s sister] going downstairs and returning with the snack for everything that [the complainant] says happened to have taken place.
Having said that, I am of the view that [L.D.] was in [the complainant’s] room during the night of June 7th and that there was probably some kind of inappropriate sexual behavior by him towards her. The difficulty with [the complainant’s] evidence is not with its credibility but, rather, with its reliability. Given the inconsistencies as well as the evidence regarding the time period within which [L.D.] would have had an opportunity to do these things, I find that [the complainant’s] evidence is not sufficiently reliable to found a conviction.
Given the inconsistencies, I am unable to find beyond a reasonable doubt that [L.D.] committed a sexual assault on his sister [the complainant].
[27] The appellant submits that this concern of the trial judge “is grounded in assumption and conjecture that is not borne out of the evidence.” The appellant further submits that the trial judge “should have considered [the complainant’s] evidence with respect to timing in the context of a six-year-old experiencing an event that is related to adults weeks after the occurrence and again a year later at trial. She applied a standard that was too rigid and not grounded in the law.”
[28] The evidence of the complainant’s mother about this issue is found at page 46, line 10 of the trial transcript from August 2, 2019:
Yeah, it wasn't very long. She had come down and the amount of time it took her to cut an apple and get peanut butter out and, and then she was back upstairs.
[29] As I have already noted above, the trial judge was alive to the challenges posed by the evidence of child witnesses, and in particular regarding peripheral matters such as dates and times. There was evidence before the trial judge which gave rise to her stated concerns when she juxtaposed the evidence of the complainant's mother about the length of time the complainant’s sister was in the kitchen on the evening question against the evidence of the complainant regarding the duration of her encounter that same evening with the respondent. I can see nothing wrong with the trial judge ruminating about that issue nor do I see anything wrong with her adverting to that issue when considering the overall reliability of the complainant’s evidence. The fact is though, the trial judge differentiated between those concerns and the “inconsistencies” in the complainant’s evidence which she enumerated elsewhere in her Reasons for Judgment and which I have referred to above at issue #1. The trial judge made it very clear in her last paragraph that it was ultimately those inconsistencies that left her in a state of doubt about the matter.
[30] I would not therefore give effect to this ground of appeal.
- Did the trial judge engage in stereotypes and myths when considering whether the complainant’s evidence was internally inconsistent or was simply a matter of delayed or incremental disclosure?
[31] In her reasons for judgment, the trial judge notes that the complainant did not say anything to the CAS worker above the respondent’s penis touching her body however, she did make reference to that occurring when interviewed by the investigating police officer. The trial judge also refers to the fact that during her testimony at trial the complainant testified that the respondent's penis touched her vagina “and then that she forgot what happened”: see Reasons for Judgment, page 14, line 22 and following.
[32] The trial judge found this to be an inconsistency in the complainant’s evidence which she specifically found was not a matter of incremental or piecemeal disclosure on the part of the child complainant.
[33] The notion that the timing of disclosure, particularly by a child complainant, has no significance of any kind is now well established in the case law. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of a complaint. Rather, the timing of a sexual assault complaint is simply one circumstance to consider in assessing the credibility of a complainant in a particular case: see R. v. D.D., 2000 SCC 43 at paragraph 65.
[34] In this case, it is important to note that the trial judge ultimately found that the difficulty with the complainant’s evidence was not with respect to her credibility but, rather with its reliability: see Reasons for Judgment page 16, line 5 and following.
[35] In reaching this conclusion, the trial judge made careful note of what she described as four inconsistencies in the complainant’s evidence, the last of which being what she told the CAS worker about the touching as compared with what she told the investigating police officer and what she ultimately testified to a trial. I also note that in her testimony at trial, after alleging that the respondent’s penis did actually touch her body, the complainant concluded by saying that she forgot what happened. In my view, that comment is what renders this evidence inconsistent and unreliable, not any perceived differences between what she may have told the CAS worker and what she ultimately testified to.
[36] A trial judge is fully entitled to consider inconsistencies in the evidence of a witness, be they a child or an adult. In this case the trial judge did so and concluded that the inconsistencies in the evidence impacted negatively on the complainant's reliability. In my view the assessment and conclusions made by the trial judge regarding those inconsistencies are entitled to deference[SMJC(1] [D2] .
[37] I would not give effect to the third ground of appeal.
Conclusion
[38] The appeal is dismissed.
CM Smith, J
Date: January 18, 2021
[SMJC(1]
[D2]