R. v. C.(J.), 2011 ONCJ 243

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486(4.1) of the Criminal Code . This subsection and subsection 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (4.1), read as follows: 486.—

(4.1) A judge or justice may, in any proceedings against an accused other than in respect of an offence set out in subsection (3), make an order directing that the identity of a victim or witness, or any information that could disclose their identity, shall not be published in any document or broadcast in any way, if the judge or justice is satisfied that the order is necessary for the proper administration of justice. . . .

(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on

summary conviction. COURT FILE No.: York Region Citation: R. v. C.(J.) , 2011 ONCJ 243 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) N. Courville, ) for the Crown ) — AND — ) ) ) J. C. ) J. Rabinovich, ) for the accused ) ) ) ) HEARD: November 2, October 22, 2010, January 13, April 29, 2011 FELDMAN J.: Introduction [ 1 ] J. C. entered not guilty pleas to two counts of Sexual Interference and two of Sexual Assault. It is alleged that during March break in 2008, he touched the vaginal area of his step-granddaughter, M.

H., twice, while she stayed with him and his wife, R., the complainant’s biological grandmother. [ 2 ] The Crown called M., her mother, T. H., and her father, N. H., in support of its case. In addition, M.’s two videotaped statements to the police were admitted in evidence. Mr. C. testified in his own behalf. [ 3 ] I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the burden of proof on the Crown. The Evidence Testimony of T. and N.H. [ 4 ] M. was 8 years old and in grade 3 at the time of these events.

She resides in Toronto with her mother and stepfather, S. M. Her father lives in the United States with his wife, M., and M’s younger brother, J. [ 5 ] J. C. and R., who is N’s mother, were the managers of an apartment building in Toronto from 1994-2006. T. H. was the superintendant. M. was born in 2000. N. left T. in 2001. [ 6 ] Mr. C. has been in M.’s life since her birth and has essentially been her only male figure. T. indicated that he and her daughter would be together almost daily and were very close outside the defendant’s work hours.

[ 7 ] J. and R. moved to Pefferlaw in 2006. M. saw them every one or two months and slept over because of the distance. T. recalls that in 2008, M. had multiple sleepovers, especially on weekends. J. would pick M. up from school on one Friday each month and drive her to his home for the weekend. T. recalls that M. spent the entire March break there, but spoke to her each day from Toronto. [ 8 ] Following the revelations by M., T. was understandably devastated and concerned for her daughter’s well being. She searched her memory for signs of abuse.

She told the court that M. always had nightmares, but that in retrospect, following her daughter’s return from Pefferlaw in March, they seemed to become more intense, apparently easing after a couple of weeks. No expert evidence was called to permit any meaningful inference to be drawn from this testimony. [ 9 ] While M. told the police and, as well, testified that she never stayed over alone again in Pefferlaw, T. told the court that her daughter spent a weekend there in April without objection, although she noticed J. seemed distant when he brought M. home.

M. also stayed over with her grandparents in June, along with N. and her brother. [ 10 ] It was only on July 5 th , after her birthday party that M. refused to go to Peferlaw, hyperventilating and crying until her mother relented. T. recalls her daughter telling her the reason was that she had just been there. J. and R., who attended the party, spoke to M. alone in her room, but she would not change her mind. [ 11 ] When M. again refused to go in August, T. was concerned by this given M.’s recent behaviour and spoke to N.

They were suspicious she had been abused by J. [ 12 ] T. sought online information on how to talk to a child about these issues. On the basis of what she learned, she told M. she was her protector and that any secrets were safe with her. She went on to ask direct and leading questions and received answers that were not recorded.

I don’t doubt the sincerity of this understandably distressed mother, but the suggestive nature of some of the questioning and her leaving the accuracy of the answers hostage to memory raise a degree of concern about the objective reliability of this evidence in the weighing process. [ 13 ] On her own evidence, T. didn’t waste any time asking M. directly if J. touched her vagina and received an affirmative answer. She asked if M. were touched inside her vagina, but was told no. When questioned how many times she was touched, M. at first indicated once, but according to T., she “finally said on her own, twice”.

In this regard, T. admitted she likely pressed her daughter on this issue of fact, permitting the inference of a degree prompting. In this regard, T. was undoubtedly well intentioned in acting on her suspicions but in the process diminished somewhat the weight of the answers in the manner of her questioning and her failure to write them down. [ 14 ] T. compounded this reliability concern in explaining everything to Dr.Saul Greenberg, a paediatrician she consulted, while M. was present. Dr.

Greenberg contacted C.A.S which led to an investigation by York Regional Police and M.’s videotaped statement on August 25 initiated by Det. Armstrong and a subsequent recorded statement on October 2 nd . [ 15 ] N. H. never spoke to his daughter about the allegations. He said M. did not seem upset or unhappy when he took her for a 5-day visit to Pefferlaw in June. He recalled in hindsight that M. seemed to stay near R., although he always understood her to be closer to J. It did not then strike him as unusual.

M.’s Statements to the Police [ 16 ] In her first statement, M. remembered being touched by her “grandpa” during March break “on her privates”, although not where in the house it happened, later on saying it was downstairs where her grandfather slept. She also said he touched her again the next day. M. recalled wearing pajamas and underwear. She was not sure, but thought J. touched her outside her pajamas. [ 17 ] T. recounted that later on in the fall M. came in to the bathroom while she was in the bath and said that her mother’s vaginal hair “looks like a man’s”.

She asked if M. had seen J’s penis and was told she had, once, and on further questioning that he had tried to pull her hands over it, the defendant apparently later telling the complainant not to say anything. [ 18 ] This led to a further statement being taken on October 2 nd . M. was asked a number of distinctly leading questions as to whether J. exposed himself to her. M. thought it was once but denied he asked her to touch his penis. Most of her answers to numerous related questions included not remembering or not knowing.

When she answered in the affirmative, it was ordinarily on the basis that, “I think so”. M. did confirm that J. had used his hand to touch her. She both denied and affirmed that he told her not to tell anyone. [ 19 ] In light of the leading, at times suggestive, questioning, the Crown does not ask the court to rely on M’s answers, but for those responses that confirm the information she gave in the first statement in relation to material issues of fact. She asks the court to focus on M’s answers in the first statement. The Defendant’s Evidence [ 20 ] J.

C. was 46 years old at the time of trial and had been in a common law relationship with R. for 12 years. He told the court that after their move to Pefferlaw, he and R. had M. with them every couple of months for weekend sleepovers. He said M. treated him like a grandfather and he was happy to have her with them. He said they were involved in a lot of activities together both in and outside the house. He recalls that during March break in 2008, they were quite active and went for toboggan rides and walks on the river. He indicated they had a lot of fun together and that M. didn’t want to go home. [ 21 ] Mr.

C. denies the allegations. He said he never slept downstairs during that March break, nor did R. He testified that he, R. and M., in her pajamas, watched movies downstairs together as a family where the DVD player was located. R. would often go to bed early and M. sometimes fell asleep, but he says he would wake her up and lead her upstairs as he felt she might be afraid were she to find herself alone at night in the basement. He said this happened once. M. apparently slept with her grandparents.

[22] Mr. C. agrees he had back pain to the degree that he was on medication and off work for about 6 months, including Marchbreak in 2008. He concedes that one issue for him was an inability to rest comfortably, but denies sleeping in the basement because ofit. [23] The fact finding process was not assisted by the failure of the parties to call R. as a witness in relation to these materialissues of fact, although it is clear there is no basis for an adverse inference to be drawn that her testimony would have been unfavourableto either party to both of whom it was open to adduce her evidence: R. v.

Scott, [2002] O.J. No. 1210 (Ont. C.A.); R. v. Lapensee, 2009ONCA 646 , [2009] O.J. No. 3745 (Ont. C.A.). [24] Mr. C. testified that M. did not express any reservations when he picked her up for the weekend of April 11th, nor was anyconcern expressed by T. or N. M. slept in their bed. He described an uneventful weekend during which he and M. built a Flinstone car.He said he noticed that she seemed a little distant. [25] Mr. C. told the court that M. also did not appear hesitant in June when he picked her up to spend some time in Pefferlawtogether with her father and brother.

He recalls that M. seemed upset and refused to return to Pefferlaw with him and R. following herbirthday party in July. They spoke to her privately. He said she told them she had just been there recently and did not want to go back. He said he was devastated when he learned of the allegations on August 11th. Assessment of the Evidence (

a) Principles Regarding Child Evidence [26] In weighing the complainant’s evidence, I am mindful of the direction by Wilson J. in G.B., A.B. and C.S. v.

The Queen(1990), (SCC), 56 C.C.C. (3d) 200 (S.C.C.), that the court should apply common sense when dealing with thetestimony of younger persons that may raise reliability concerns by not imposing “the same exacting standard on them as it does onadults” without lowering the standard of proof. [27] Put another way, in assessing child evidence, it is important to take account of that individual’s mental stage andintellectual level, comprehension and ability to articulate her recollection, while at the same time maintaining the traditional standard ofproof. In R. v.

W.(R.) (1992), (SCC), 74 C.C.C. (3d) 134 (S.C.C.), McLachlin J. (as she then was) said: “…it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiarperspectives of children.

Since children may experience the world differently from adults, it is hardly surprising that details important toadults, like time and place, may be missing from their recollection.” [28] Justice McLachlin made it clear, however, that every person giving testimony, of whatever age, must have his or hercredibility and evidence assessed “by reference to criteria appropriate to [her] mental development, understanding and ability tocommunicate.” She went on to add: “In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according tocriteria applicable to her as an adult witness.

Yet with regard to her evidence pertaining to events which occurred in childhood, thepresence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the ageof the witness at the time of the events to which she is testifying.” [29] This common sense approach to the testimony of the children, that is, in viewing age as a relevant factor in assessing thesignificance of apparent shortcomings in a young complainant’s evidence, has been followed in Ontario: see R. v. Robinson, (ON CA), [2002] O.J. No. 2349 (Ont. C.A.); R. v. Ritchie, [2003] O.J.

No. 4384 (Ont. C.A.); R. v. R.W.B., [2003] O.J.No. 3086 (Ont. C.A.). (

b) The Reasonable Doubt Standard [30] The standard of proof beyond a reasonable doubt is bound up with the fundamental principle in criminal trials of thepresumption of innocence. This standard of proof has been described as proof to a near certainty: R. v. Starr, 2000 SCC 40. [31] Where credibility is important, as in this case, the Supreme Court requires that the rule of reasonable doubt be applied tothat issue: R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397.

In W.(D.), Cory J. directed the trial judge to acquit if theevidence of the accused is believed or if he is left in reasonable doubt by it even if he does not believe that evidence.

The third elementin this analysis obliges the judge to ask himself, even if he is not left in reasonable doubt by the evidence of the accused, whether he isconvinced beyond a reasonable doubt of the guilt of the accused on the balance of evidence which he does accept. [32] In this analysis, rejection of an accused’s evidence may be derived from “a considered and reasoned acceptance beyond areasonable doubt of the truth of conflicting credible evidence”, but not on the basis of preferring the worth of one over the other: R. v.J.J.R.D., (ON CA), [2006] O.J. No. 4749 (Ont. C.A.); R. v.

Maharaj (2004), (ON CA), 186C.C.C. (3d) 247 (Ont. C.A.). [33] The trier of fact is entitled to assess an accused’s testimony in light of the whole evidence, including the testimony of thecomplainant, and in so doing comparing the evidence of the witnesses: R. v. Hull, (ON CA), [2006] O.J. No. 3177(Ont. C.A.).

In fact, the court made reference in this regard to the “positive duty to carry out such an assessment”, given the possibilitythat the judge may be left in reasonable doubt concerning the guilt of the accused. [34] In a thoughtful review of these authorities and this issue, given the difficult application of W.(D.) principles to the standardof proof in cases involving one complainant and one accused (and his witnesses), Justice Duncan, in R. v.

Jaura, 2006 ONCJ 385, cameto a conclusion, with which I agree both in logic and principle, that “a trial judge can reject the evidence of an accused and convict solelyon the basis of his acceptance of the evidence of the complainant, provided that he also gives the evidence of the defendant a fair

assessment and allows for the possibility of being left in doubt, notwithstanding his acceptance of the complainant’s evidence. © Findings of Credibility and Fact [35] On the weighing of evidence, the Crown fairly suggests that the court rely solely on the content of M’s first statement tothe police and that her utterances to T. be limited to forming part of the narrative. She concedes that the substance of the complainant’ssecond statement was subject to leading, sometimes suggestive, questioning. Ms.

Courville also acknowledges that there is a reasonabledoubt on the evidence that M. was touched inside her pajamas. [36] There are some reliability concerns with regard to M’s evidence. She demonstrated a significant lack of memory formaterial detail that, however, should be viewed as less significant given the emotional and cognitive limitations of her age.

In addition,her recollection may well have been tested by the passage of almost 4 months before her mother’s inquiries and the police interviews, thetiming for the latter of which may be on the line of meeting the standard in child evidence of “preserving a very recent recollection of theevent” described by Cory J. in R. v. C.C.F., (SCC), [1997] 3 S.C.R. 1183. [37] M. was also wrong in testifying that she was never alone with J. after March break and was inconsistent in speaking to T.and the police about the number of times she was touched and when.

She was often uncertain of the answers to numerous leadingquestions on material issues of fact. The objective reliability of the complainant’s statements to the police and her testimony was notenhanced by her being present during T’s discussion of the allegations with Dr. Greenberg. [38] Nonetheless, I agree with Ms. Courville, for the prosecution, that M’s answers to Det. Armstrong on the core issue of herbeing touched was, in the midst of other leading questions, unprompted, although she knew why she was speaking to the police.

Aswell, she testified without guile and was a responsive, if at times, hesitant witness. She expressed only good will towards hergrandparents. Her allegation of touching is bolstered by the reasonable inference on the evidence that the defendant had an opportunity,even if brief, to violate his granddaughter while alone with her downstairs.

I find M. to be a believable witness. [39] In coming to this conclusion, I apply the common sense principle, set out in the authorities, noted earlier, that the standardof the ‘reasonable adult’ is not appropriate for assessing the credibility of young children, in the sense that flaws, such as contradictions,in the testimony of a child do not weigh so heavily against the child’s credibility as equivalent flaws in the testimony of an adult: R. v.H.C., [2009] O.J. No. 4749 (Ont. C.A.). [40] Mr. C’s blanket denial was not backed up by much detail.

In chief, he did not speak of M. watching movies downstairs inher pajamas and he had to back off from his assertion that he made T. aware in advance of the films M. watched. I agree with the Crownthat it seemed he sought to cast himself in the best and most innocuous light. I was not impressed by his evidence [41] Mr. C. had no option on the evidence but to concede he had an opportunity to be alone downstairs with M. in admitting R.usually retired early to bed while watching movies and that, in addition, M. fell asleep, at least once.

But there is no independentevidence that the defendant slept downstairs or that there was a particular reason his back problems required him to do so. Given that M.testified to sleeping upstairs with R., the defendant’s testimony that he would wake M. to take her upstairs to bed as she might be afraidto find herself downstairs alone at night is on this evidence, while self-serving, not implausible. [42] Despite some reliability concerns, I found M. to be credible. It is probable the defendant touched her as she alleges. Hehad opportunity to do so.

As well, in the context of all the evidence his denial is diminished by the complainant’s believability. [43] At the same time, I can’t be satisfied on the evidence to the requisite standard that Mr. C. slept downstairs with M. becauseof his back problems or that he did not wake her after the movies to bring her upstairs to his bedroom. That is not to say, however, thathe lacked opportunity, however brief.

While I would not rely on the accused’s evidence on the material issues of fact, I cannot say on allthe evidence that I reject it on the basis contemplated in Jaura. [44] In the result, I am left in reasonable doubt of the accused’s guilt. The charges will be dismissed. Released: April 29, 2011 Signed: “Justice L. Feldman”