Court File and Parties
COURT FILE NO.: CR-22-11401728 DATE: 2024/05/03
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – J.D. Accused
COUNSEL: M. Brown, for the Crown C. Dostaler, for the Accused
HEARD: March 4-8, 2024
Publication Ban
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding under subsection 486.4(2.1) of the Criminal Code, R.S.C. 1985, c. C.-46, directing that the identity of the victim and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.
Reasons for Decision
Parfett J.
[1] This matter was listed as a bilingual trial. It was agreed by both parties that English-speaking witnesses would testify in English and French-speaking witnesses in French. Submissions and the decision would be provided in English.
[2] The accused, JD is charged with one count of sexual assault, contrary to s. 271 of the Criminal Code. [1]
Background
[3] The complainant VC is the grandchild of the accused’s common law partner. Her mother was a single parent and VC spent a lot of time at her grandparents’ apartment.
[4] After an alleged incident of sexual assault that occurred at a hotel in Québec, the complainant reported to police that she had suffered numerous incidents of sexual abuse at the hands of her grandmother’s common law partner.
[5] VC provided a written statement to police, followed by three video statements taken April 2, 2022, May 6, 2022, and June 14, 2022. [2] At trial, and pursuant to s. 715.1 of the Code, VC adopted the video statements she made to police in 2022.
Evidence at trial
[6] Although there was some overlap between the three video statements, overall, the statements dealt with different aspects of the abuse allegations.
[7] VC alleged that from the time she was nine years old, she had been subjected to incidents of sexual touching. These incidents fell into four categories: incidents in a pool, incidents in the living room of her grandparents’ apartment, incidents in the bedroom of her grandparents’ apartment and wrestling incidents. There were also two distinct incidents: an incident that allegedly occurred at a Michaels store in Ottawa and a final incident at a hotel in Québec.
(i) Pool incidents
[8] VC stated that there was an outdoor pool at her grandparents’ apartment. She and her grandparents spent time in this pool during the summer months. VC recalled one specific incident where her grandmother was talking with friends at one end of the pool. VC and her grandfather were playing with some floating toys at the shallow end of the pool. VC grew bored of the game and was floating on her back. Her grandfather came up behind her and bounced her on his legs. VC said she was aware of his penis pressing against her bottom. She said that this occurred while the accused was sitting on the pool stairs. In a later statement, VC said the incident occurred while JD was leaning against the side of the pool. VC testified that this incident occurred when she was nine years old.
(ii) Living room
[9] VC indicated that she enjoyed watching television with her grandfather, while her grandmother was busy elsewhere in the apartment. She said that she would lie down with her head in her grandfather’s lap, and he would move around. VC testified that she would get up and change seats when this happened.
[10] In April 2022 statement, VC drew a picture of the placement of the furniture in the living room. [3] VC’s grandmother confirmed that the drawing was accurate.
[11] MM testified that VC regularly lay down on the couch with her head in JD’s lap. However, a pillow was almost always present and on the one occasion that she recalled there was no pillow, she insisted that VC get one.
[12] In cross-examination, VC indicated that it was possible that she placed a pillow between her head and JD’s lap, but she could not recall what type of pillow she used. Later in cross-examination, VC testified that she could not recall ever using a pillow. On consent of Crown counsel, Defence counsel filed a photograph showing VC lying with her head on a pillow in JD’s lap. [4]
[13] In cross-examination, VC agreed that MM was often present or close by in the kitchen. VC suggested that the movement, which she called ‘dry humping’, continued even though MM was present. She also stated that she and her grandfather were clothed throughout. VC insisted that the movements made by JD were deliberate. However, she also stated that she could not recall exactly what happened.
(iii) Bedroom
[14] VC provided a detailed drawing of the placement of the furniture in the bedroom. [5] MM confirmed that the drawing was accurate. One notable feature of the placement of the furniture was the fact the television was to one side of the bed and faced the door into the bedroom.
[15] VC stated that because the television was placed to the side of the bed, she and her grandfather would lie on their sides on the bed with their backs to the door. Her grandfather would spoon with her, and VC testified that he pressed himself against her, moving around and making moaning noises. She felt something poking her bottom and described JD’s movements as ‘dry humping’. Both were fully clothed throughout these incidents. VC stated that her grandmother did not watch television with them in the bedroom. On the other hand, VC agreed that the bedroom door was never closed.
[16] VC recalled one incident where she and her grandfather were watching a favourite movie of hers called ‘Venom’. During the movie, JD pulled VC against his body, moved around, moaned and ‘made a sound of ejaculation’. In cross-examination, VC agreed that she never saw or felt anything wet in JD’s crotch area.
[17] MM stated that usually she was in and out of the bedroom while VC and JD were watching television and she could easily see the bed and television from the doorway. The door was never closed. VC and JD cuddled on the bed. MM said that VC enjoyed cuddling with her grandfather.
(iv) Wrestling
[18] VC testified that she and her grandfather would often engage in wrestling. The purpose of the game was to pin the other person to the ground. VC indicated that during this game, her grandfather would pin her to the ground on her back and with her legs apart. He would then grind his penis against her. As with other incidents, VC described this process as ‘dry humping’. In her testimony in chief, VC indicated that this occurred regularly during the wrestling activity. They were always clothed. On at least one occasion, he also squeezed her breast. VC could not recall if the games were noisy or very physical or that her grandmother would sometimes yell at them to stop.
[19] In cross-examination, VC agreed that JD would try and tickle her. She could not recall JD getting out of breath easily.
[20] She testified that she was always the one to start the wrestling but denied that she enjoyed wrestling. She stated she could not recall laughing during the wrestling but agreed it was possible. At one point in her testimony, VC said she felt comfortable enough about the wrestling that she continued to engage in it with JD but later in her testimony, she said that she never felt comfortable engaging in wrestling with JD.
[21] VC insisted in cross-examination that the ‘dry humping’ occurred every time she and JD wrestled.
[22] VC also indicated in her testimony in chief that JD sometimes touched her breasts during the wrestling matches. In cross-examination, VC had no recollection of her breasts being touched during the wrestling.
[23] MM confirmed that VC and JD regularly engaged in these wrestling matches, and they occurred all over the apartment. She said that she was often around to observe the activity and never saw any inappropriate behaviour. She also indicated that the wrestling matches did not last long as JD suffered from shortness of breath. She stated that because of his physical limitations, VC was often the winner of the game.
(v) Incident at L’Auberge des Gallant
[24] VC could not recall precisely when this incident occurred. However, there was an agreed statement of facts that stated that this trip occurred during March break of 2022. [6] It was also agreed that VC, MM and the accused went to the hotel on the Wednesday and were supposed to remain until Friday. However, VC left early on Thursday.
[25] VC stated that there were two beds in the room. Her grandfather slept in one bed and she and her grandmother slept in the other bed. While her grandmother was in the shower early on Thursday morning, the accused lay down on the bed beside her.
[26] VC stated she felt JD pull her underwear down approximately halfway. Her grandmother then came out of the bathroom and the accused got up from the bed.
[27] VC indicated that she was very upset by this incident, and she spoke to her grandmother either in the bathroom or just outside of it. VC testified that she told her grandmother that she thought she was dreaming and that during the dream she felt her underwear being lowered.
[28] VC and MM went to the jacuzzi in the hotel to talk further and VC told her grandmother about all the ongoing abuse. VC asked to go home, and MM drove her to a location in Casselman where they met up with VC’s mother.
[29] VC’s grandmother, MM testified for the defence. She confirmed that JD was her common law husband and that they had been together for 27 years. She stated that JD had several health issues relating to breathing making it hard for him to engage in physical activities. She indicated as well that JD regularly wore cargo pants with several pockets and that he carried his wallet, keys, and cellphone in his pockets.
[30] MM testified primarily in relation to the incident at the Auberge des Gallant in Rigaud, Québec. However, she also confirmed many of the peripheral details in VC’s testimony.
[31] However, Ms. M indicated that she was often present when VC and her grandfather were together, or she would be in and out of a room they were in, and she never observed any inappropriate interactions.
[32] With respect to the incident at the Auberge des Gallant, Ms. M stated that she woke up around eight and had a shower. As soon as she got out of the shower, JD went in. VC told her that she did not know whether she had been dreaming, but she felt her underwear being lowered. MM and VC then went to sit in the hotel jacuzzi, and VC repeated the allegation. VC told MM that she wanted to go home. MM arranged to meet VC’s mother in Casselman. MM testified that she told VC’s mother what VC was alleging.
[33] MM said that once VC was with her mother, she asked to return to the hotel, but she (MM) refused, and VC went home with her mother.
[34] There was another incident that occurred in the Michael’s store in Ottawa. VC stated that she was shopping for items for a birthday gift and her grandfather came up to her and gave her a side hug and touched her breast. In cross-examination, VC was unable to provide any details concerning how the touching occurred but insisted that the touching could not have been accidental.
Issue
[35] The only issue in this case is whether the Crown has proven the case beyond a reasonable doubt. In the particular circumstances of this case, I believe that it is important to review a few fundamental principles of law. JD is presumed innocent unless and until the Crown proves the case against him beyond a reasonable doubt. Any witness’ evidence must be assessed not only for credibility, but also for reliability. The judge reviewing a witness’ evidence can accept some, none or all of a witness’ evidence.
[36] Assessing the evidence of a young person is a somewhat different process than assessing the evidence of an adult. As noted in R. v. B.(G.), [1990] 2 SCR 30 at p. 55,
While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children. [7]
[37] The differences in assessment, however, do not change the fundamental principle that “[p]rotecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child.” [8]
[38] There are no hard and fast rules in assessing a young person’s evidence. Instead, “[e]very person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate.” [9]
[39] As defence evidence was offered, the principles in R. v. W.D. apply and the court should assess whether they believe the defence evidence and even in the event they do not believe that evidence, they must assess whether that evidence raises a reasonable doubt. Finally, the court must assess the evidence they do accept to determine whether they are satisfied beyond a reasonable doubt whether a sexual assault occurred.
[40] In a case such as this one, the credibility and reliability of the complainant is front and center. It is important to note that while credibility focusses on the truthfulness of a witness’ evidence, reliability focusses on the witness’ ability to recall and perceive the events they are describing.
[41] During her testimony, VC repeatedly referred to her experience as traumatic. I accept VC’s perception of these events as traumatic and I take that fact into consideration in assessing the reliability of her evidence, in particular as it relates to her present memory of events.
[42] VC finds herself in a very difficult position. Her decision to disclose the events in her life has fractured her family. Her mother died before this matter came to trial and she is now being raised by her aunt. Her grandmother is no longer a part of her life. I am mindful of these factors as well in assessing VC’s reliability.
[43] As noted earlier, this case is a two-witness case. VC’s grandmother testified. Her evidence was cogent, clear and unshaken on cross-examination and I accept it. Her evidence called into question the complainant’s assertion that the inappropriate behaviour she described occurred frequently. VC’s grandmother indicated that she was either present or in and out of the rooms where VC and her grandfather were either watching television or wrestling. She stated that she never observed any inappropriate behaviour.
[44] In my view, the inevitable conclusion to draw from VC’s grandmother’s evidence is that if the alleged conduct occurred it did so infrequently.
[45] This conclusion is supported by VC’s own evidence. While she indicated that the behaviour she described occurred frequently, she was only able to recall a single incident in the bedroom, the living room and the pool.
[46] VC adopted her statements provided to police as her evidence in chief. These statements were comprehensive. In cross-examination, it was apparent that VC no longer recalled many of the details that she had provided earlier to police and that formed her testimony in chief.
[47] VC spoke about the pool incidents in her written statement and in two of the video statements. There were inconsistencies as between the two video statements. Specifically, VC indicated in the April 2022 statement that JD was sitting on the pool stairs when he put her on his lap. She also indicated that this incident occurred more than once. In the same statement, VC stated that the incident only happened once. In the May 2022 statement, VC said the incident occurred while they were both standing up. She denied that anything occurred on the pool stairs. She also stated that it ‘probably happened more than once’. In cross-examination, Defence counsel pointed out the inconsistency between the written statement and the video statements. In the written statement, VC said that she was touched both when she was standing up and when JD was sitting on the pool stairs. In cross-examination, VC could not recall where she was in the pool, nor could she recall if there was more than one incident. She agreed with defence counsel that the incident in the pool could have been an accident.
[48] In cross-examination, VC was unable to recall that her grandfather had some health problems and became easily breathless. She could not recall whether she used a pillow when she lay down on the couch with her grandfather. Defence counsel produced a photograph showing the complainant lying with her head down in JD’s lap with a pillow. MM’s testimony, that I accept, indicated that VC rarely put her head in JD’s lap without a pillow. This evidence undermines VC’s testimony that the ‘dry humping’ while she and JD were in the living room occurred regularly.
[49] VC’s grandmother recalled an incident where VC and her grandfather were wrestling, and the bed collapsed. In cross-examination, VC was unable to recall that incident.
[50] VC agreed in cross-examination that it was possible that what she felt poking her bottom when she was in the bedroom could have been the accused’s belt buckle or his cellphone case that he usually wore on his belt.
[51] VC denied categorically that what occurred at the Auberge des Gallant was indeed a dream. However, she testified in cross-examination that she was under the blanket in bed, and she was wearing a nightgown that was below her knees when she said she felt her underwear coming down. She agreed with Defence counsel that JD was on top of the covers and had one arm over her. He was spooning with her, and his other arm was probably under his head.
[52] I have no doubt that VC was an honest witness. She provided her testimony as accurately as she could. She did not exaggerate and readily agreed with Defence counsel that she could have misinterpreted certain of the incidents, such as the incident in the pool or in the bedroom.
[53] Unfortunately, VC’s present memory of the incidents was seriously lacking. Crown provided the court with the case of R. v. C.C.F.. In that case, the court states,
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.
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.
It can thus be seen that the primary goal of [s. 715.1] is to create a record of what is probably the best recollection of the event that will be if inestimable assistance in ascertaining the truth. [10]
[54] Of importance, the court in that case was talking about the evidence of very young witnesses. I certainly agree that as young witnesses age, they can easily forget the details of things that happened to them. However, in the present case, VC was 13 years old when she provided her initial testimony to the police and fifteen when she testified at trial. In her statements, she was relating incidents that had started when she was nine years old and ended shortly before she provided the statements. VC is not a very young witness; she is an adolescent. It is hard to accept that she had a clear recollection of incidents two years earlier, but very little recollection in the present. The internal inconsistencies of her testimony in chief – not on peripheral matters, but on ones that go to the core of the allegations – leave me with concerns about her reliability. Consequently, although I accept that VC believes she was sexually assaulted, I cannot find beyond a reasonable doubt that these incidents occurred.
[55] In the circumstances, I am unable to find that the Crown has proven its case beyond a reasonable doubt and consequently, JD is acquitted.
Released: May 3, 2024 Parfett J.