COURT FILE NO.: CR-18-00001302-00
DATE: 2021 06 04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
C. Agatiello, for the Crown
- and -
S.C.
J.W. Irving, for the Defence
HEARD: October 28, 30 and 31, 2019; and April 6, 8 and 9, 2021
REASONS FOR JUDGMENT
FRAGOMENI J.
[1] The accused, S.C., stands charged as follows: Count One: he did unlawfully commit an assault on E.G.; Count Two: that he did unlawfully commit an assault on A.K.C.; Count Three: he did unlawfully commit an assault on A.K.C..
Overview of the Allegations:
[2] On June 21, 2017, A.K.C. attended at the doctor’s office with her daughter E.G. on an issue unrelated to these allegations. At the time, E.G. was having some chest pains.
[3] When the doctor examined E.G., he noticed several marks on her body including bruises. The doctor inquired about these marks. A.K.C. indicated that E.G.’s stepfather, S.C., had been hitting her. As a result of receiving this information, the doctor reported this to the Children’s Aid Society (“CAS”).
[4] CAS met with E.G. and A.K.C., and they provided brief statements to CAS as to what happened. CAS contacted Peel Regional Police. A.K.C. and her daughter E.G. attended at the police station. Detective A. Pennington took a statement from E.G.. Constable Savage took a statement from A.K.C..
[5] The Crown did not introduce anything that was disclosed to the doctors or CAS because they were not called as witnesses at trial.
Trial Evidence
Detective Andrew Pennington
[6] Detective A. Pennington took a statement from the child, E.G., on June 21, 2017. At the time, E.G. was approximately four and a half years old. Her date of birth is [---].
[7] Detective A. Pennington observed a two-and-a-half-inch bruise on the calf area of E.G.’s left leg and E.G. also indicated to him that there was a pinch mark on her right forearm which he estimated to be the size smaller than a dime.
[8] E.G.’s statement was videotaped.
[9] E.G. testified at the trial.
E.G.
[10] E.G. testified on October 30, 2019. At the time she was about six and a half years old. The video of her statement was played for her. The video statement was filed as Exhibit 1(a) and the accompanying transcript was filed as Exhibit 1(b).
[11] After reviewing the video, E.G. was examined in chief by the Crown and cross-examined by the Defence. It is important and informative to set out some of the answers E.G. gave at the trial.
Examination in Chief
Q: Okay. Just tell us in your, in your own words, what, what were you trying to tell the officer? You, you told the officer Papa hit you?
A: Yes
Q: Can you tell us a little more about that?
A: I think I forgot
Q: So you told the officer Papa hit you right?
A: Yep
Q: Okay. Can you tell us a little more about that?
A: I only just remember a little bit, not a lot.
A: I only forgot a little bit. I can tell you just a little bit, because I forgotten.
Q: Okay. So just – it’s okay, if you don’t remember everything, okay. That’s fine?
A: I only, I only remember what, what – I only remember fun stuff with my Papa.
Q: And you, you told the officer your Papa pinched you?
A: Only one time.
Q: Okay. When did that happen, do you remember?
A: No.
Q: Okay. And do you know why your Papa pinched you?
A: Nope.
Q: Okay. Do you remember telling the officer that Papa hit you with a big stick?
A: It’s only one time too.
Q: … You said you were playing in the park?
A: Not in the park, the party.
Cross-Examination
Q: Do you remember prior to going to the police station on that day, you had been living at your uncle’s house for two or three weeks?
A: Okay.
Q: Do you recall that you were at his house for two or three weeks prior to that?
A: Yeah.
Q: Okay. Do you remember telling the police officer that this happened when you were playing in the park?
A: The party not the park.
E.G. went on to say it was a party that had aunties, uncles and everybody in her family. The party was at a mall.
[12] When asked about being hit with a stick she stated:
A: I said he drink it by accident then he, he by accident he hit me, because he was just dancing with a stick.
Q: So I really do just want to understand what you said.
A: Okay.
Q: That Papa hit you with a stick by accident?
A: Yeah.
Q: Okay. So you don’t believe he did it to hurt you?
A: No, I don’t believe that.
Q: Okay. You told His Honour that daddy pinched you and it left a mark on your arm, correct? Am I right about that?
A: It was just by accident, a mistake.
A: No, he pinched me by accident.
Re-Examination
[13] E.G. was asked what made her think it was an accident and she responded, “I don’t know.”
A.K.C.
[14] A.K.C. provided four versions of events relating to these allegations. It is necessary to review each version in order to provide context to the discussion that follows.
- June 21, 2017: Video Statement to the Police
[15] In her June 21, 2017 videotaped statement to police, A.K.C. indicated that S.C. assaulted her and E.G.. She provided the following particulars:
- On one occasion after an argument she was trying to go to her room, and he pulled her and hit her next to the wall. E.G. was coming between them telling him not to hit her mama.
- A.K.C. thinks he may have kicked E.G. and that’s why she has the mark.
- On this occasion of the pushing, A.K.C. did not sustain any injuries, just some back problems.
- This first incident took place in August or September of the year prior.
- On another occasion E.G. told her ‘Papa kicked me in my tummy’.
[16] On another occasion she sets out the following in the Police Statement:
So they went, uh, upstairs and there was my sister-in-law’s daughter… and my mother-in-law, so they locked the bedroom and they hit me. That day they assaulted me. That day he pulled my hair. He punched me… A lot of people know about that.
- The June 8 incident occurs at the McLaughlin address.
- E.G. used to get punishments all the time.
- Two or three times he would hold her upside down in between the stairs.
- He would lock her in the laundry room, closet and basement.
- 911 Call on June 26, 2017
[17] A.K.C. called 911 on June 26, 2017, five days after giving her statement to the police, to recant the allegations made.
- Affidavit Sworn August 18, 2017
[18] A.K.C. sets out the following at paragraphs 4, 5, 6, 7, and 8 of her Affidavit:
That my husband, ever since I got married to him, has always been a person who looks after me and my daughter with love and care.
That there have never been any significant differences between me and my husband ever since we got married with each other, nor even he developed any unpleasant and uncaring attitude towards my daughter with only two exceptions wherein a natural flow of arguments that happened between me and my husband, which is quite usual and normal to happen between any married couple. These arguments episodes resolved within no time as they never happened before.
That such an episode of arguments happened on 18th June 2017. As a reaction to these arguments, I temporarily moved to live with my sister who lives in Brampton along with my daughter who was already living there to spend some vacation time with her cousins there.
That on 21st June 2017 I visited my Family Doctor at Ebenezer and Gore in Brampton for a routine check-up with my daughter. There my family doctor while conducting check-up of my daughter observed few black and blue spots on knees of her. My Doctor asked my daughter about those spots who, out of innocence and witty mode, said that her father beat her that cause those spots. Whereas, a matter of fact, me and my daughter were away from my husband since 18th June 2017 and as by no means possible that my husband could beat my daughter and cause those spots. In real, those spots were caused to my daughter during her run-n-catch game which she was playing with her cousins. But the doctor, instead of inquiring the validity of my daughter’s statement from me, straight away made a call to the Children’s Aid Society (CAS). The CAS representative visited my sister’s home on the same evening and recorded statement of me and my daughter. Thereafter, the CAS representative took us to the Police Station for recording of statement before a police officer there.
That after reach at Police Station, the police officer recorded our video statement. Therein I did mention that I and my husband have had 2 occasions of arguments that turned into a non-trivial situation with slight pushing each other. Other than that there have never been such an unpleasant situation occurred ever between us.
[19] The videotaped statement was filed as an exhibit at trial. Following a Crown Application, I determined that the out of Court statement met the requirements of necessity and reliability and as such could be admitted for the truth of its contents.
- Trial Evidence of A.K.C.
[20] At trial, A.K.C. again recanted her earlier version of what happened in her video statement to the police.
[21] The following testimony is relevant and informative, and contradicts the allegations made by A.K.C. in her statement to the police (below E.G. is refereed to as “[N.]”)::
Q: What were your arguments about?
A: Just things at the house.
Q: Little things like what?
A: Now I don’t remember that much.
Q: Did the arguments ever get physical?
A: No.
Q: Was [N.] ever present when you were arguing?
A: No.
Q: Did he ever discipline [N.]?
A: No
Q: So your answer is no, he never punished her?
A: No, didn’t.
A.K.C. testified that S.C. never hit her and never hit E.G..
[22] The first time A.K.C. saw bruises on E.G. was when H.S., the uncle, took her to the doctor on June 21, 2017. At the doctor’s office when E.G. said “Papa hit me” A.K.C. did not know who she was referring to, however, she believed E.G. was referring to her uncle, H.S.
[23] At trial, A.K.C. stated the following (below E.G. is refereed to as “[N.]”):
Q: So how is it that you came to know that when [N.] said “Papa” she was talking about H.S.?
A: Because she stayed with H.S. more. She calls him that from the beginning.
Q: Okay. But you didn’t know that during the doctor’s visit?
A: No.
Q: Okay. So in your mind you thought it was H.S., but you didn’t say anything?
A: No, at the time I did not say anything. He told me to be quiet.
Q: Why do you think or come to believe that it was H.S. who caused the mark on [N.] in June 2017?
A: Because H.S. told me that with playing – that by playing with toys that’s how she got those marks on her. But my daughter told me that H.S. was the one who hit her.
[24] A.K.C. testified as well that E.G. refers to her uncle as “Papa” or “Daddy”.
[25] A.K.C. also testified that E.G. went to live with her uncle H.S. on June 6, 2017.
[26] A.K.C. testified that the version given to the police in her videotaped statement is not true. The testimony she gave under oath at the trial is true. The version given to the police was at the insistence of H.S..
[27] A.K.C. testified that she was not being truthful in her statement to the police.
[28] A.K.C. also reiterated in her testimony that the day she went back home after the doctor’s visit, E.G. told her H.S. hit her.
[29] With respect to the 911 call recanting what she told the police, A.K.C. testified that in this call she wanted to take the June 21, 2017 statement back. Part of her explanation for that was that at the time she made her video statement S.C. had hidden her immigration file and she was very upset. She was dependent on S.C. for her immigration status. H.S. had told her to scare S.C. so he would have her file reinstated. H.S. told her to lie about S.C. and tell the police he hits her.
[30] A.K.C. testified as follows:
A: I did say that to the police, I did say that to the police. On H.S.’ command, I lied to the police.
Q: So H.S. gave you all the details and you went along with it.
A: Yes.
[31] A.K.C. also testified that her mother witnessed the beatings on E.G. by H.S..
Q: When is the first time… that you recall saying to CAS H.S.is abusing your child?
A: Like I don’t remember that now, like my mother is there. She’s sitting – she was the eyewitness to the beating on my daughter. When – she would run under the table, he would kick her, all those things.
Q: Okay.
A: My mother told me to take my daughter away from there.
Cross-Examination of A.K.C.
[32] In cross-examination by the defence, A.K.C. confirmed or acknowledged the following:
- From June 6, 2017 on E.G. was living with H.S. and A.K.C.’s sister.
- S.C. had not seen E.G. from June 6 onward.
- Just before June 20, 2017, she discovered that S.C. had hidden her immigration file and she was angry at him for doing so. That was her motive for lying to the police.
- On June 26, 2017, she called 911 and wanted to take back her false statement to the police.
- Before June 20, 2017, she never saw any marks on E.G..
- E.G. refers to H.S.as “Papa” or “Daddy” as well.
- At the doctor’s office H.S. told her to be quiet.
- A.K.C.’s trial testimony is the truth.
H.S.
[33] H.S. testified that the reason they attended at the doctor’s office on June 21, 2017 was because A.K.C. had to see the doctor. E.G. also indicated she had a pain. H.S. was asked to stay outside as the doctor examined E.G..
[34] H.S. denies that he ever hit or beat E.G..
[35] H.S. also denies that he told A.K.C. to lie to the police.
[36] H.S. does not remember exactly if E.G. was in fact living with him at the time they brought E.G. to the doctor on June 21, 2017.
[37] H.S. also testified that E.G. would refer to him as “Daddy” usually but sometimes she would refer to him as “Papa”.
Position of the Crown
[38] The Crown submits that the Court should find and conclude that A.K.C.’s video statement to the police is truthful. The Crown asks the Court to find that A.K.C.’s 911 call, her Affidavit and her trial testimony are all fabrications.
[39] With respect to her police statement, the Crown submits the following factors should be considered:
- She attended at the police station accompanied by CAS.
- She understood she was speaking to the police and how serious it was to be there.
- She provided the details to the police in a free flowing and voluntary manner.
[40] The Crown readily acknowledges that A.K.C. has given four versions of events, namely her police statement, the 911 call, her Affidavit and finally her trial testimony.
[41] With respect to E.G.’s trial testimony the Crown submits that she was coached to give that evidence. Although there is no direct evidence that E.G. was coached, the Crown asks the Court to infer that she was.
[42] With respect to E.G.’s trial testimony, the Crown submits that using language like “accident” or “it was a mistake” is not the language used by a four-year-old child.
[43] The Crown submits that H.S.’ testimony should be preferred over that of A.K.C..
[44] The Crown submits that the officer’s observations about the bruises corroborates A.K.C.’s version of the events as set out in her police statement. The Crown argues that expert evidence is not required to establish how and when the bruises and pinch were caused. The Court can simply use common sense.
[45] In summary the Crown asserts that the police statement is the only version that makes sense.
Position of the Defence
[46] The Defence points out that the video statement to the police was not under oath.
[47] Further, there is no evidence to support the Crown’s theory that A.K.C.’s trial testimony was a fabrication or that she had a motive to lie under oath.
[48] There was also no evidence that E.G. was being coached.
[49] Further, in her videotaped statement to the police, at no time was A.K.C. cautioned about the consequences of giving a false statement. The Defence submits that it would be very unsafe to convict on the basis of a KGB statement not given under oath.
Analysis and Conclusion
General Principles
Presumption of Innocence
[50] Every person charged with an offence is presumed to be innocent, unless and until Crown Counsel proves his/her guilt beyond a reasonable doubt.
Burden of Proof
[51] The obligation to prove the guilt of the accused rests with the Crown, from start to finish. The accused does not have to present evidence or prove anything.
Reasonable Doubt
[52] Reasonable doubt is a doubt that logically arises from the evidence or the absence of evidence.
[53] If at the end of the trial, based on all the evidence or the absence of evidence, or the credibility of one or more of the witnesses, or the reliability of his or her evidence, the Court is not sure that the accused committed an offence, the accused should be found not guilty.
Prior Inconsistent Statement of Witness as Substantive Evidence (R. v. B. (K.G.))
[54] A.K.C.’s videotaped statement must be considered within the following parameters:
- Both the trial testimony and the KGB statement can be used as evidence of what happened.
- Both must be assessed carefully.
- Like the witness’s testimony, the Court determines how much and how little it will believe and rely upon the statement in deciding the case.
- The Court must consider the circumstances of the interview at which time the statement was made, including the following:
Was the statement completely and accurately recorded;
Was the statement made under oath or solemn affirmation;
Did anyone remind the witness in any way about the importance and the consequences of making a false statement;
Did the questions let the witness tell the story;
Did the witness say why the statement was not truthful;
Testimony of A.K.C.
[55] The videotaped statement of A.K.C. is encumbered with the following difficulties:
- It was not made under oath or solemn affirmation.
- At no time was A.K.C. cautioned or advised of the serious consequences that would flow to her if she made a false statement.
- Three subsequent statements including the testimony of A.K.C. completely contradicted what she told the police.
- E.G., a witness put forward by the Crown to support her theory of the case, was never asked about the details set out by A.K.C. in her police statement, including the following:
That E.G. saw S.C. hitting her mama.
That E.G. had to intervene and go between them and that she was the kicked by S.C..
That E.G. was kicked in the tummy.
That E.G. was being held upside down.
That E.G. was being locked in a closet, laundry room or basement.
[56] The Crown submits that the Court should accept the video statement as truthful. However, the evidence from E.G. or the absence of evidence from her does not assist the Crown.
[57] Further, E.G. had little recall of the events and quite clearly testified that the hitting with a stick and pinch were done by accident.
[58] E.G. also refers to the identity of the person who accidentally hit her or pinched her as “Papa”.
[59] A.K.C. testified that E.G. referred to both S.C. and H.S. as “Papa” or “Daddy”. In fact, H.S. testified that E.G., at times, would refer to him as “Papa”. In those circumstances it is difficult to find and conclude that the “Papa” referred to in her police statement was in reference to S.C.. It could have been a reference to H.S.. This takes on significance when the Court considers that the evidence established that E.G. was living with H.S. as of June 6, 2017. The visit to the doctor was June 21, 2017. S.C. had not seen E.G. from June 6, 2017 onward.
[60] There was no medical evidence called relating to how and when the pinch and bruises were caused.
[61] At one point in her testimony A.K.C. stated that her mother witnessed the beating H.S. occasioned on E.G., yet the mother was not called as a witness by the Crown to either confirm or refute that assertion by A.K.C..
[62] The Crown also asks the Court to find that E.G. was coached with respect to her trial testimony. I am not satisfied there is any evidentiary support for that position.
[63] I am not satisfied that the Crown has proved these charges beyond a reasonable doubt. The videotaped statement to the police, considering the circumstances in which it was made, cannot ground a conviction. The three subsequent recantations cannot be dismissed outright. It is not the function of the Court to just pick a version that supports a conviction. The question is, do the subsequent recantations within the context of the evidence as a whole leave the Court in a state of reasonable doubt? The answer to this question is yes.
[64] In this case the Crown has failed to establish and demonstrate what happened beyond a reasonable doubt. Based on the evidence and the absence of evidence, I am not sure what happened. In these circumstances the Crown has not met her onus to prove these charges are beyond reasonable doubt.
Conclusion
[65] In all of these circumstances, therefore there will be findings of not guilty on all three counts.
Fragomeni J.
Released: June 04, 2021
COURT FILE NO.: CR-18-00001302-00
DATE: 2021 06 04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
S.C.
REASONS FOR JUDGMENT
Fragomeni J.
Released: June 04, 2021