COURT FILE NO.: CR-1155/20
DATE: 2021-09-01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
M.A.
Kaely Whillans and Mathieu Ansell, for the Crown
Denis Michel, for the Accused
HEARD at Sudbury: July 5, 6, 7 & 8, 2021
REASONS FOR JUDGMENT
K.E. Cullin, J. (orally)
Overview of the Trial
[1] The accused is charged on a three-count indictment with sexual assault and sexual interference.
[2] The charges arise as a result of allegations made by the complainant T.L., of incidents that occurred when she was a child; she is currently 20 years of age. The accused was the best friend of the complainant’s father and was regarded by her as an “uncle”. The complainant alleges that, on several occasions, the accused engaged in sexual conduct with her, ranging from touching her vagina with his mouth, putting his penis in her mouth, and other unspecified sexual conduct.
[3] The accused elected a trial by Judge alone, and that trial was conducted over the course of four days. For the Crown, T.L., her father P.L., and the accused’s siblings R.A. and Mi.A., testified. T.L. and P.L. testified in person. R.A. and Mi.A. testified virtually, on consent. The accused elected not to call evidence.
[4] For the purpose of trial, the issues of jurisdiction, the identity of the accused, and the dates of the alleged offences were not disputed. It was also not disputed that the complainant was under the age of 14 at the time of the alleged offences. The only issue to be determined by the court was whether the Crown had established, beyond a reasonable doubt, that the accused had committed the alleged sexual offences against the complainant.
Overview of the Evidence at Trial
[5] The complainant testified about three incidents which form the basis of the charges before the court.
[6] The first incident occurred when T.L. was approximately six or seven years old. The accused was living at her residence. She recalled being carried up the stairs at night by someone who was not her father and who she believed was the accused. She had been sleeping and was half-awake. She recalled being in a “pantry room” that had been converted into a living space for the accused. She was lying on a couch and she recalled the accused’s mouth on her vagina. It was her evidence that she could see his face from the middle of his nose and up. She observed his eyes and his forehead. She recalled being confused about what was going on and eventually falling back to sleep. On cross-examination, she acknowledged that she could not say with certainty whether the incident happened or whether she was dreaming.
[7] The next incident occurred when the accused was no longer living with the complainant and her family. It was her evidence that she was, “quite a few years older”. She testified that she awoke in her bed to discover the tip of the accused’s penis in her mouth. She observed the accused’s face when she looked toward the ceiling. She knew that it was his penis because it was connected to his torso. On cross-examination, the complainant acknowledged that it was “pitch dark” in her room. She testified that, when her eyes adjusted to the darkness, she could observe the outline of a person in her room. It was her evidence that she was not 100% certain of the identity of that person.
[8] The final incident occurred when she was between the ages of 11 and 13. She awoke in bed to discover that her bedsheets were no longer covering her and that her underwear and pyjama pants were sitting at her ankles. She felt unusually wet in her vaginal area with what she described as a “discharge”. She went to the washroom to clean herself, and then woke her father to tell him that she was worried that someone had done something to her while she was sleeping. She recalled feeling confused and worried. On cross-examination, the complainant testified that she could not say what had caused her vaginal wetness.
As noted, the court also heard evidence from the complainant’s father, P.L., as well as the accused’s brother, R.A. and his sister, Mi.A. All three testified that the accused had “confessed” to them on different occasions that he had sexually abused T.L.
Law
Burden of proof
[9] It is a fundamental principle of the Canadian criminal justice system that every accused person is presumed to be innocent of the charges he or she is facing. At trial, the Crown has the evidentiary burden of proving, beyond a reasonable doubt, that the accused committed the offences with which he or she is charged: R. v. Lifchus, [1997 319 (SCC)], [1997] 3 S.C.R. 320, at para. 4.
Elements of Sexual Assault and Sexual Interference
[10] A charge of sexual assault requires the Crown to prove, beyond a reasonable doubt, a direct or indirect application of force to another person, of a sexual nature, in the absence of consent. It is a general intent offence; as such, the Crown is required to establish only that the accused intended to do the touching. (Criminal Code, ss. 265(1) and (2), 271)
[11] A charge of sexual interference (s. 151), requires the Crown to prove, beyond a reasonable doubt that the accused touched, with a part of his body or an object, any part of the body of a person under the age of 16 years, for a sexual purpose. (Criminal Code, s. 151)
Credibility and reliability
[12] The determination of this case will involve an assessment of the reliability and credibility of the witnesses called on behalf of the Crown.
[13] As noted by Watt, J.A. in R. v. H.C., 2009 ONCA 56 (para. 41):
Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately:
i. observe;
ii. recall; and
iii. recount
events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), [1995 3498 (ON CA)], 22 O.R. (3d) 514 (Ont. C.A.) at 526.
[14] Consistency is a significant consideration in assessing the credibility and reliability of witness testimony. It is a multi-faceted assessment, which involves a review of the witness’s pretrial statements and trial evidence, the witness’s evidence on direct examination and cross-examination and the witness’s evidence in relation to the evidence as a whole. A lack of consistency, particularly with respect to material facts and issues, may be fatal to the court’s acceptance of all or part of a witness’ testimony. (R. v. M.(A.) 2014 ONCA 769 (paras.9-13)).
[15] In this matter, an assessment of the Crown’s case depends largely upon the credibility and reliability of the evidence of the complainant, T.L., who was a child under the age of 14 at the time of the alleged incidents and an adult at the time of trial. Although she testified about events that occurred to her as a child, her evidence must be assessed by the criteria applicable to adult witnesses, and not with the “common sense” approach and less “exacting standards” that would be applicable in assessing the evidence of a child witness. At the same time, however, when an adult gives evidence about events that occurred in childhood, inconsistencies and lapses in memory should be considered having regard to the passage of time and the nature of the events in question (R. v. W.R. [1992 56 (SCC)], 1992 CarswellOnt 90 (S.C.C.), para. 27).
Analysis
[16] I will say at the outset that the Crown has not met its burden of proof with respect to the two incidents that are alleged to have occurred in the complainant’s own bedroom.
[17] With respect to the incident in which the complainant awoke to discover vaginal “wetness”, there is no evidence to support a finding that the complainant was sexually assaulted or, if she was sexually assaulted, that the incident was perpetrated on her by the accused. There are reasons other than sexual assault that a young woman could awake to discover the presence of vaginal discharge. The circumstantial evidence that the complainant’s underwear and pants had been removed raises suspicion that something untoward may have occurred but does not establish proof beyond a reasonable doubt that the accused was the offender.
[18] With respect to the incident in which the complainant awoke to discover a penis in her mouth, I find that the evidence elicited from the complainant on cross-examination makes it impossible to sustain a conviction in the circumstances disclosed. The complainant acknowledged during cross-examination that her room was “pitch black” and had no “natural light”. Her room was in the basement of her residence and her bedroom window, which was enclosed by an outside patio deck, was covered by a blanket that she had affixed to act as a curtain. The scene described by the complainant was far more consistent with her description on cross-examination of seeing an outline of a person in the darkness than her description during direct examination of seeing the accused’s face as she looked up at the ceiling. Even if I accept the complainant’s evidence that that event itself occurred, the evidence does not establish beyond a reasonable doubt that the accused was the perpetrator.
[19] This leaves the incident in the pantry room.
[20] I will indicate first that I found the complainant to be a credible witness who made a genuine effort to provide truthful evidence to the Court. She was straightforward, she was not unduly argumentative during cross-examination, and she made reasonable concessions and admissions during cross-examination even when they were detrimental to the Crown’s case.
[21] I also found R.A. to be a credible witness. He, too, was a straightforward witness who impressed me as someone who simply wanted to assist the Court to get to the truth of the allegations. Although it was clear that he had a complicated relationship with his brother, I was not left with the impression that there was any malice or ulterior motive underlying his testimony.
[22] Mi.A. was a challenging and argumentative witness. It was difficult for me to assess whether this was the result of her traumatic brain injury or her obvious hatred of her brother, the accused. Either way, I found that her demeanour during her testimony was so combative that I am unable to accept her evidence as credible or reliable. In making my decision, I have placed no weight on Mi.A’s testimony.
[23] P.L.’s evidence regarding the facts and circumstances during the time of the alleged offences was, in my view, credible and reliable. That evidence was consistent and logical. It also did not diverge in any substantial way from the evidence given by T.L.
[24] I had more difficulty accepting the evidence of P.L. with respect to the disclosures made to him by R.A. and M.A. I was left with the impression that P.L. was not forthright in his evidence regarding these issues. Whether it was guilt as a result of his failure to act upon the earlier disclosure of his daughter’s sexual abuse or deception intended to conceal his marital infidelities or other objectionable conduct, I was left with the impression that P.L. was not disclosing the “whole truth” during this aspect of his evidence. I approached this aspect of P.L.’s evidence with caution and some scepticism.
[25] Having considered the evidence in its totality, I accept the following facts:
a. That, in or about 2006 or 2007, when the complainant T.L. was approximately 6 or 7 years of age, the accused M.A. was residing at the home occupied by T.L., P.L., and their immediate family.
b. That T.L. regarded and treated M.A. as an “uncle” and he would have occupied a position of trust with respect to her at the relevant time.
c. That M.A. occupied a room on the upper floor of the house that, at one point, was used as a pantry or storage room but was converted to a bedroom during his stay.
d. That the bedrooms of all other occupants of the residence, including T.L. and P.L., were located in the basement of the residence.
e. That, on at least one occasion, M.A. entered the bedroom of T.L., removed her from her bed and brought her upstairs to his room.
f. That, as T.L. was a sound sleeper, she was not completely roused by the actions of M.A. To the extent that she was roused, she was groggy and confused.
g. That P.L. either was not roused by the actions of M.A. or, if he was roused, he did not react or take action upon becoming aware of the presence of someone moving about in the basement.
h. That, while she was in M.A.’s upstairs bedroom, she was roused to the point that she observed M.A. with his mouth on her vagina. She observed his forehead, eyes, and part of his nose. She felt wet within the folds of her vagina. She felt pressure against her vagina and the sensation of M.A.’s lips on her vagina.
i. That, following the incident, T.L. tried to ignore what had happened. She believed that the incident was a dream.
j. That, even now, T.L. feels uncomfortable discussing what happened and has not told her parents the particulars of the incidents.
k. That, in or around the time of his father’s death in 2012, M.A. disclosed to his brother R.A. that he had sexually abused T.L. R.A. was troubled by this information and contacted P.L. to advise him. Nothing happened at that time.
l. That, in or around March or April 2018, M.A. disclosed to P.L. that he had engaged in sexual conduct with T.L. P.L. shared the disclosure with T.L. The charges before the court followed shortly afterwards.
[26] T.L.’s description of the incident in the pantry room was credible and was not undermined in any fundamental way during cross-examination. She testified that she was a sound sleeper and that she really only became aware that she had been removed from her bed as she was being carried up the stairs from the basement. She credibly explained how she ascertained that it was M.A. who was carrying her up the stairs – the person carrying her was too large to be her brother who was a child at that time, and she knew it was not her father because she had been carried by her father and was familiar with how it felt to be in his arms.
[27] The defence noted during closing submissions that T.L. described being on a couch in the pantry room, whereas P.L. testified that there were bunk beds in the room. I did not view this as fatal to the reliability of T.L.’s evidence. I considered her evidence that she had attempted to put the incident out of her mind and concluded that it would be reasonable that superfluous details such as the furniture may not have been retained as part of her memory of the incident. It was also my view that it bolstered the credibility of both T.L.’s and P.L.’s evidence that their descriptions of the pantry room were not mirror images; this suggested to me that they had not collaborated in advance of trial regarding their evidence.
[28] The defence also took exception to T.L.’s description of feeling wetness in the “folds” of her vagina during the pantry incident. It was submitted that this was not a realistic description by T.L. and that it would have exceeded her knowledge of the development of her body at the time of the incident. I have given this submission no weight and accept T.L.’s anatomical description as accurate and realistic.
[29] Another issue raised by the defence was the plausibility of the assertion that M.A. was able to retrieve T.L. from the basement and bring her upstairs undetected. The court heard evidence that T.L.’s bedroom door made noise when it opened, that the stairs and floors creaked in some places, and that P.L. was a light sleeper who was often woken when his children used the bathroom at night. While these circumstances would have created challenges, I find that they do not make the likelihood of the described sexual assault impossible or even improbable.
[30] It was compelling to me that, after the “vaginal discharge” incident, P.L. and his wife took steps to install a crystal drape over T.L.’s bedroom door so that both they and T.L. would be alerted if anyone entered T.L.’s bedroom at night. This led me to conclude that P.L. and his wife believed that it was plausible that someone could enter the basement and T.L.’s room undetected either by them or by T.L. and that additional security measures were necessary.
[31] I also noted T.L.’s evidence that, when this incident occurred, she woke, went to the bathroom to clean herself, and then went into her parents’ bedroom to wake them and request assistance. The fact that she opened her “noisy” bedroom door and attended to herself in the downstairs bathroom before waking her still-sleeping parents further supported my conclusion that it was possible to navigate the basement undetected at least some of the time.
[32] What did give me pause during my deliberations was T.L.’s statement during cross-examination that she could not say with certainty that the pantry incident happened or whether she had been dreaming that it happened. I considered whether this statement was fatal to her testimony regarding this incident; I concluded that it was not.
[33] In assessing T.L.’s evidence, I considered both the circumstances surrounding the pantry incident, as well as the events that followed it. The incident occurred at night and was initiated while T.L. was sleeping. She described being groggy, confused and in and out of sleep as it was occurring. She described the sensation that one feels when they are woken while they are asleep – they know they have been woken, but on some level they are not 100% certain whether they have been woken or whether they are still asleep and dreaming.
[34] T.L. described that, in the years following the incident, she attempted to ignore the situation and put it out of her mind. When T.L. awoke sometime after the pantry incident to the sensation of vaginal discharge and reported to her parents that she believed that something bad was happening to her while she was sleeping, no steps were taken to confront M.A. or to validate her concerns. I expect that this only served to reinforce any doubts that she had about the reality of what she was experiencing.
[35] At the end of the day, T.L.’s detailed description of the pantry incident persuaded me beyond a reasonable doubt that the incident occurred and that her evidence regarding it was reliable. She provided unwavering evidence of seeing the top half of M.A.’s face as he had his mouth on her vagina. She provided a detailed description of how it felt as it was occurring – she felt the pressure of his mouth and wetness in the area of her vagina. The substance of her evidence and her demeanour as she described it both during direct and cross-examination left no doubt in my mind that she was describing an incident which had actually happened to her.
[36] In my view, T.L.’s evidence alone would have been sufficient to support a conviction with respect to the pantry incident. M.A.’s admission to R.A. and to P.L. that he had sexually abused T.L. only served to reinforce her evidence.
[37] As I have noted, I found R.A.’s evidence to be credible and his description of M.A.’s admission to him to be reliable. The core of his evidence was not fundamentally challenged on cross-examination. After hearing R.A.’s evidence, I concluded that the death of his father triggered an emotional crisis for M.A. that caused him to take inventory of their relationship and its impact on his own life. He had an outburst at the funeral home in which he accused his father of physical, emotional, and sexual abuse. This was followed by an emotional exchange with his brother during which he disclosed his own sexual abuse of T.L. and sought validation for his conduct by suggesting that R.A. was engaging in similar behaviour. R.A. was disturbed by what he heard and contacted P.L. to advise him; the fact of this disclosure, if not the specific details, was corroborated by P.L. in his evidence.
[38] I also accepted the fact that an admission was made by M.A. to P.L., notwithstanding the fact that I was left with the impression that P.L. was not completely forthright in his evidence on this point. P.L.’s evidence about the nature of the admission was an obviously uncomfortable moment in his testimony. It was my view that this core component of P.L.’s evidence was truthful. My issue with his credibility and reliability was with respect to his actions after receiving this information from R.A. and M.A.; while an indictment of P.L., this did not undermine my view of T.L. and her evidence.
Disposition
[39] For the reasons given, I hereby enter the following dispositions with respect to the charges on the indictment:
a. With respect to Charge Number One, that the accused did for a sexual purpose touch T.L. with his mouth, I enter a conviction.
b. With respect to Charge Number Two, that the accused did commit a sexual assault on T.L., I enter a conviction. At the request of the Crown, this conviction will, however, be stayed in accordance with the principles in R. v. Kienapple.
c. With respect to Charge Number Three, that the accused did for a sexual purpose touch T.L. with his penis, I enter an acquittal.
[40] Prior to sentencing, Mr. Michel requested the preparation of a pre-sentence report on behalf of his client. I agree that this request is appropriate, and I hereby order that a pre-sentence report be prepared regarding M.A.
[41] This matter is otherwise adjourned to the Assignment Court on September 21, 2021 at 10:00 a.m. to schedule a date for the sentencing hearing.
Released Orally: September 1, 2021 The Honourable Madam Justice KE. Cullin
COURT FILE NO.: CR-1155/20
DATE: 2021-09-01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
M.A.
REASONS FOR JUDGMENT
K.E. CULLIN, J.
Released Orally: September 1, 2021