COURT FILE NO.: CR-22-40000383-0000
DATE: 20231101
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
J.P.
Ian Laing, for the Crown
Paul Mergler, for the accused
HEARD: October 3-5, 2023
WARNING
Subject to any further order of a court of competent jurisdiction, an order has been made in this proceeding, pursuant to s. 486.4(2) of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.
J.M. Barrett J.:
Reasons for Judgment
Overview
[1] Mr. P. is charged with one count of sexual interference, contrary to s. 151 of the Criminal Code. The charge is based on allegations that between April 28, 2016 and December 31, 2019, he had vaginal and anal intercourse with his great niece, CH, when she was between four and eight years old.
[2] Mr. P. is married to CH’s maternal great aunt, MH. There is no issue that CH regularly slept over at the accused’s home on Saturday nights during the period of the alleged offence. There is also no issue that the conduct described by CH constitutes the offence of sexual interference. Consequently, the only issue is whether any of the acts alleged occurred.
The Evidence
[3] The background context to these allegations is not disputed.
[4] CH and her aunt, MH, loved each other very much. From infancy, CH regularly slept over at her aunt’s home. Once or twice a month on a Saturday, CH and her mother would spend the day helping their aunt at the restaurant she owned and operated. Afterwards, CH would accompany her aunt home and spend the night.
[5] CH always slept with her aunt in her aunt’s bedroom. Mr. P. regularly slept in a separate room from his wife due to snoring. The sleepovers would end on Sunday at around noon when CH’s mother would pick her up. By all accounts, CH looked forward to the sleepovers at her aunt’s home. CH never voiced any concern.
[6] The sleepovers stopped shortly before the COVID pandemic. Then, in July 2020, MH visited CH’s mother. The two women arranged for MH to return the next day at which time she was expected to pick up CH for a sleepover. That night, CH awoke crying. When asked what was wrong, CH told her mother that she had “sex” with Mr. P. The next day, CH was examined at Sick Kids Hospital. A genital examination was conducted. Doctors could neither confirm nor rule out the possibility of sexual abuse. No injuries were found.
[7] At trial, CH testified with the assistance of a support worker, from outside the courtroom via CCTV. CH is now 11 years old. In-chief, CH adopted as true the forty-eight-minute videotaped statement she gave to the police on July 22, 2020, pursuant to s. 715.1(1) of the Criminal Code, R.S.C., 1985, c. C-46. At the time of her statement, CH was eight years old.
[8] CH’s evidence is that on multiple occasions, Mr. P. put his penis inside her “vagina” and “butt”. In her statement to the police, she alleged that Mr. P. forced her “to sit on it”. However, at trial CH testified that she did not recall sitting on the accused’s penis.
[9] CH testified that all of the incidents occurred when her aunt was outside smoking a cigarette. CH’s evidence is that while her aunt was outside smoking, CH had her aunt’s phone and used it to watch videos while lying on her aunt’s bed. Mr. P. would enter the bedroom, pull her by her legs, pull her pants and underwear down to her mid-calf area, and put his penis “on” her, which she later explained meant “inside” her vagina and bum. In her videotaped statement, CH pointed to both areas on her body, and, using two sheets of paper with drawings of a male and female body, CH demonstrated how Mr. P. would lie on top of her and move back and forth. CH also demonstrated how “sometimes” she would be lying face down, watching videos on the phone when Mr. P. would put his penis inside her “butt”. She always told him to stop. He never did. Mr. P. only stopped when he heard his wife coming back inside. He would then get dressed and leave the room. Her aunt would always go to the bedroom to check on CH after she returned inside.
[10] At trial, CH testified that all acts occurred in her aunt’s bedroom when her aunt was outside smoking a cigarette. At the preliminary hearing, CH testified that “sometimes” the assaults occurred “in his bedroom”.
[11] CH estimated that her aunt would be outside for about five minutes, just long enough to have a cigarette. CH agreed that her aunt’s bedroom had a lock on it which she used when changing. During cross-examination, CH explained that she did not think to lock the door when her aunt was outside smoking. CH agreed that before July 2020, she never complained to anyone. She testified that Mr. P. did not put anything on his penis before he put it in her bum. She testified that she was in pain and cried one time but was scared to tell her aunt or mother; she thought they would hit her, although neither had ever hit her. CH could not recall how many times the assaults occurred, but was sure there was more than one incident. At trial, CH was emotional at times.
[12] CH’s mother also testified. She agreed during cross-examination that after each overnight visit, she would ask CH about the visit. CH always said everything was fine. In July 2020, MH visited her home, and plans were made for CH to leave the next day for an overnight visit with her aunt. That night, CH woke up crying. When asked what was wrong, CH said she had “sex” with Mr. P. CH’s mother brought CH to the hospital the next day. The police were called. When asked in cross-examination whether CH was ever in any pain after a visit to her aunt’s home, CH’s mother testified that there was one time when CH’s “private parts” were irritated and bleeding slightly. She agreed that this was not mentioned in her statement to the police.
[13] Mr. P. testified. He is 51 years old. He has no prior criminal record. He works in construction. He denied any inappropriate touching. He testified that all of the allegations are a lie. Apart from the two or three times that his wife would be on the front porch having a cigarette, he was never alone in the house with CH. Mr. P. made a short video of his home’s main floor that was filed as an exhibit. In the video, Mr. P. counts 20 steps along a straight hallway from the front porch to his wife’s bedroom. The accuracy of the video is not disputed.
[14] The accused’s wife, MH, also testified. She is 58 years old. She too has no prior criminal record. She owns and operates a restaurant in Toronto. She spoke fondly of CH’s overnight visits at her home. MH described CH as being “stuck” to her during the visits. CH liked spending time in MH’s bedroom, where MH kept her make-up and had a mirror.
[15] MH confirmed many details testified to by CH about the house and their activities during the sleepovers, including going to the park, sharing cookies made by a neighbour, that there were tenants living in her basement, and that her home had a front garden with a white gate.
[16] MH testified that her husband was never alone in the house with CH, other than when MH was on the front porch smoking a cigarette. She did not smoke through the day and only had two cigarettes at night. Even then, she did not smoke the entire cigarette, only around four puffs. She was never outside for more than two minutes. While outside, she left CH with her cellphone so that CH could watch videos. Her husband was typically in the living room watching television. When she returned from smoking her cigarette, she always found CH as she had left her, on the bed playing on the cellphone. CH never appeared upset.
Relevant Legal Principles
[17] Mr. P. is presumed innocent. That presumption remains with him unless and until the Crown establishes his guilt beyond a reasonable doubt. That heavy burden of proof never shifts. Mr. P. did not have to testify or call evidence. There is no onus on the accused to prove anything. This important and long-standing principle of our criminal law is constitutionally entrenched in s. 11(d) of the Canadian Charter of Rights and Freedoms.
[18] A reasonable doubt is one based on reason and common sense that logically arises from the evidence, or the absence of evidence. While the Crown is not obliged to establish guilt to an absolute certainty, proof beyond a reasonable doubt is much closer to proof of absolute certainty than it is to proof of probable or likely guilt: see R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242; R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at paras. 13-43. I can find the accused guilty only if I am sure that he committed the offences alleged.
[19] As Mr. P. testified in this case, in assessing whether the Crown has proven his guilt beyond a reasonable doubt, I am mindful of the principles set out by the Supreme Court in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at p. 758. First, if I believe Mr. P.’s testimony, I must acquit. Second, even if I do not believe his testimony, I must acquit if I am left with a reasonable doubt as to his guilt. Third, even if I reject his testimony, I can only convict if, based on the evidence that I do accept, I am satisfied beyond a reasonable doubt of his guilt.
[20] That said, if I accept CH’s testimony that any one of the alleged acts of vaginal and anal penetration occurred, this is sufficient to find Mr. P. guilty. Corroboration is not required: see s. 274, Criminal Code; R. v. S.R., 2023 ONCA 671, at para. 8. This recognizes that sexual violence does not always leave physical evidence, such as marks or DNA: see R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 61.
ANALYSIS
[21] Having carefully considered the totality of the evidence in this case, I turn now to my conclusions regarding the allegations in the indictment.
[22] There is much consistency in the evidence of the Crown and defence witnesses. For instance, there is no dispute of the following: CH loved her Saturday overnight visits with her aunt; CH never voiced any complaint about any visit, even when her mother explicitly inquired after each visit; MH’s bedroom was about twenty steps from the front door; MH’s bedroom door had a lock; CH was never alone with Mr. P., other than when MH went to the front porch to smoke; when MH was outside smoking, CH stayed in MH’s bedroom watching videos on MH’s cellphone; and, when MH returned inside, she would go to her bedroom and find CH on the bed watching videos.
[23] The consistency in the evidence ends with what happened when MH went outside to smoke a cigarette. The only direct evidence on this issue is that given by CH and Mr. P. MH’s testimony provides some circumstantial evidence supportive of Mr. P.’s denial that any inappropriate touching occurred. MH’s testimony confirms the very limited opportunity that Mr. P. had to engage in the acts alleged.
[24] Mr. P. and his wife, MH, gave their evidence in a forthright manner. They were unshaken in cross-examination. Mr. P. was unwavering in his evidence that nothing inappropriate occurred. There were no material inconsistencies in the testimony of Mr. P. and his wife.
[25] The Crown argues that I ought to reject their testimony because neither gave credible evidence. In particular, the Crown argues that Mr. P. and his wife attempted to minimize Mr. P.’s opportunity to commit the alleged acts. The Crown further argues that MH’s testimony about her smoking habits[^1] was not credible; it is illogical that MH would only take four puffs of each cigarette and simply discard the rest. The Crown argues that this is an obvious attempt to assist her husband, as is MH’s claim that her husband was always in the living room watching television when she returned from the front porch. While I accept that MH has an obvious bias, I find that it did not affect her honesty and the reliability of her evidence.
[26] The Crown invites me to find that CH’s evidence is credible and reliable. The few inconsistencies that exist in her evidence and her inability to recall certain details, such as the number of times she was abused, must be considered in the context of her young age and the passage of time: see R. v. B. (G.) 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at pp. 52-54; R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 134; R. v. P.S., 2019 ONCA 637, at paras. 25-26. Following from this, the Crown argues that if I accept CH’s evidence, this is an adequate basis upon which to reject Mr. P’s denial: see R. v. D. (J.J.R.) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53.
[27] The allegations in this case do not involve fondling — acts that could have easily occurred in a passing moment when CH’s aunt was not present. Instead, CH’s allegations are of anal and vaginal penetration which occurred after the partial removal of CH’s pants and underwear. According to CH, she told Mr. P. to stop but was ignored. He stopped only when his wife came back inside. However, the uncontested video of the home shows that the bedroom is a very short distance from the front door where the front porch is located. MH’s bedroom is at the end of a straight hallway from the front door. Yet, MH’s testimony is that after having just a few puffs of her cigarette, when she returned inside, she never saw Mr. P. in her bedroom, or exiting her room. Rather, she would invariably return to find CH as she had left her: on MH’s bed watching videos on MH’s cellphone. In these circumstances, which I find existed, it strikes me as implausibly reckless for Mr. P. to have repeatedly committed a sexual assault of this nature, given the unpredictable nature of MH’s return inside.
[28] The Crown argues that it would be wrong to consider the absence of emotional or physical distress exhibited by CH in assessing her evidence, as this relies on prohibitive stereotypical reasoning. I recognize that the delayed reporting by CH does not detract from her credibility: see R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at paras. 63, 65. Victims of sexual abuse, particularly children, often do not disclose the abuse. As with a failure to make a timely complaint, a failure to display avoidant behaviour, or a change in behaviour, cannot be the basis of a presumptive adverse inference against CH’s credibility. Rather, it is well recognized that there is “no inviolable rule on how people who are the victims of trauma like sexual assault will behave”: D.D., at para. 65. In this case, CH explained why she did not disclose the abuse: she was scared her aunt or mother would hit her, even though she had never previously been hit by either of them.
[29] CH presented as an amiable young girl, who believes she was sexually abused by her great uncle. However, proof beyond a reasonable doubt is a high standard. The inconsistencies in her evidence are not just about the number of assaults, their timing, or other such peripheral matters. While the Crown argues that the core of CH’s allegations has remained consistent, other than alleging that Mr. P. put his penis inside her vagina and butt, CH’s “core” account had minimal detail. Moreover, CH’s evidence was inconsistent as it related to her allegation that she was forced to sit on Mr. P.’s penis, and whether all of the assaults occurred in her aunt’s bedroom. In the circumstances of this case, I find that both of these inconsistencies relate to material issues. Ultimately, I am most troubled by the implausibility of CH’s account given the nature of the alleged assaults and the minimal opportunity of Mr. P. to commit the acts.
[30] Although there is no apparent motive to explain why CH was upset and disclosed the abuse after learning of a planned overnight visit with her aunt in July 2020, it would be wrong to equate this apparent lack of motive to fabricate with a proven absence of a motive to fabricate: see R. v. B.T.D., 2022 ONCA 732, 163 O.R. (3d) 561, at para. 82; R. v. Gerrard, 2022 SCC 13, 468 D.L.R. (4th) 389, at paras. 4-5. Accordingly, the absence of an apparent motive to lie is of limited assistance in assessing CH’s evidence: see R. v. M.S., 2019 ONCA 869, at para. 16. Also, while CH was emotional at times during her police statement and at trial, reliance on demeanour evidence must be approached with caution.
[31] Having considered the evidence as a whole, I find there is no logical evidentiary basis to reject Mr. P.’s evidence. Regardless of whether or not I believe Mr. P.’s denial of any inappropriate sexual conduct, the defence evidence leaves me with a reasonable doubt.
CONCLUSION
[32] In all the circumstances of this case, I am not satisfied beyond a reasonable doubt that Mr. P. ever touched CH for a sexual purpose. I find Mr. P. not guilty.
J.M. Barrett J.
Released: November 1, 2023.
COURT FILE NO.: CR-22-40000383-0000
DATE: 20231101
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
j.P.
reasons for judgment
J.M. Barrett J.
Released: November 1, 2023
[^1]: This testimony was elicited from questions I asked at the conclusion of MH’s evidence. Both Crown and defence counsel were afforded a further opportunity to ask questions on this issue.