R v GSL, 2023 MBPC 10

CITATION: R v GSL , 2023 MBPC 10 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN His Majesty the King ) ) K. Hart and D. Queau-Guzzi for the Crown ) ) - and - ) ) ) G.S.L. Accused ) ) L. Kellie-McMillan for the Accused ) ) ) ) Judgment delivered: March 1, 2023 Restriction on Publication Pursuant to s. 486.4(1) of the Criminal Code , any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way in proceedings in respect of this offence. C.A. DEVINE, P.J. [ 1 ] The accused was charged with sexual assault and sexual interference of 12- year-old TH-H (

T) that occurred November 22 or 23, 2018. The accused was in the position of an uncle at the time, by reason of his common-law relationship with the child’s aunt. [ 2 ] The Crown called as witnesses the complainant, T, now 16 years of age, her brother D to whom she first disclosed, and her father TH. The accused testified in his defence. [ 3 ] The allegation is that T was home from school on November 22, 2018. She was anxious about an incomplete science assignment and got permission from her mother to stay home and work on the project.

According to her father’s testimony, T is an anxious girl, an excellent student and a perfectionist. [ 4 ] T disclosed the sexual abuse allegations at the time the accused was being tried for a sexual offence against her older sister, also a child at the time. There is no similar fact evidence at issue in this case. The defence denies the allegations involving T and argues that they were motivated by the other complaint. T testified that her family was very upset about the sentence the accused received in her sister’s case, believing it to be too low.

The impact on T’s sister was significant; she developed a seizure disorder as a result of the sexual offence and was suffering from between five and 20 seizures daily as the trial date approached and their father had to take a leave from work to be with his daughter, because she required 24-hour supervision and care. The entire family has been in therapy over the allegations involving the accused. THE ALLEGATIONS [ 5 ] The accused and his partner (Auntie T), who is T’s maternal aunt, were frequent visitors at the home of T and her family.

At the time of the allegation, the accused was in a rehabilitation facility to deal with long-term alcoholism and he and Auntie T would come to the family’s home about two or three times during the work week and for more time on weekends. Auntie T had a key to the house and she and the accused let themselves in and out as they wished. At the time of the allegation, only T and the accused were at home. T’s parents were at work, the siblings were in school and Auntie T was at the mall getting a new phone.

T was working on a homework assignment and asked the accused for help with her homework. [ 6 ] The accused went with T to the office where she was doing her homework and lifted her up onto the desk and put his hands

under her shirt. At first, she thought nothing of it, because he had often put his cold hands on her skin after being outside, as a joke. Butthen he laid her back onto the desk and held one of her wrists and started rubbing up and down her body. He took her shirt off and wastouching her everywhere, including her breast, which he was squeezing, on top of her sports bra. She was scared. T testified that she didnot know what was happening. She started to fight him, then he pinned her other wrist with the same arm and hand holding her firstwrist. Then he pulled down her pants and got them down as far as her knees.

He put his hand under her panties and grabbed her bum,squeezing it and grabbing it, “almost like he was picking up a dodge ball”. He had most of his weight on top of her, and was moving hisbody on top of her, rubbing his chest on her chest, stomach and legs. He was squeezing her breasts and her bum. She weighed about 115to 120 pounds at the time. She estimated he weighed over 300 pounds. When they heard the door to the house open and close hestopped, then got an angry look on his face and threw her shirt at her.

She was never alone with him again. [7] After the incident, T waited in the office for an hour or two and then went out when she believed the accused was no longerthere. She was scared and did not know why the accused got mad at her. [8] T also testified that both Auntie T and the accused are alcoholics. Indeed, the accused testified that since this time, he andAuntie T are no longer in a relationship and she is in the throes of narcotic addiction. ISSUE [9] There is no question that the acts complained of constitute sexual interference and sexual assault in law.

The only issue in thiscase is whether the Crown has proven beyond a reasonable doubt that the behaviour alleged by the complainant took place. I mustresolve this by an analysis of the credibility and reliability of the evidence of the witnesses. [10] The defence’s theory of the case is that the complainant had a motive to lie.

His main argument about her evidence not beingcredible or reliable was that there were inconsistencies in her evidence about the date she disclosed the allegations. [11] The Crown’s main argument is that the complainant provided detailed, believable evidence about the allegation, whereas theaccused has tailored his story to fit the complainant’s evidence except for the sexual offence.

THE LAW WITH RESPECT TO CHILDREN’S EVIDENCE [12] The law of evidence has developed in the past three decades to appreciate that children are not little adults, such that theapproach to admitting and considering their evidence must be different. Justice McLachlin stated in R v W(R), (SCC),[1992] 2 SCR 122: The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong toapply adult tests for credibility to the evidence of children.

One finds emerging a new sensitivity to the peculiar perspectives of children.Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time andplace, may be missing from their recollection. (At para 25, emphasis added; and see R v DD, 2000 SCC 43 , [2000] 2 SCR 275.) [13] Justice McLachlin went on to state: . . . Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed byreference to criteria appropriate to her mental development, understanding and ability to communicate.

But I would add this. In general,where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteriaapplicable to her as an adult witness.

Yet with regard to her evidence pertaining to events which occurred in childhood, the presence ofinconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of thewitness at the time of the events to which she is testifying. (At para 27, emphasis added.) Also see R v Storheim, (24 January 2014) Winnipeg (Man.QB.) at 24. [14] This does not change the rigorous analysis of evidence with respect to credibility and reliability that is necessary to ensure thatan innocent person is not convicted.

The standard of proof remains, whether the complainant is a child or an adult (W(

R) at para 26). [15] It is a foundation of Canadian criminal law that an accused person is presumed innocent. [16] Many evidentiary and procedural rules support the presumption of innocence. In determining whether a person is to beconvicted or acquitted of a criminal offence, the onus on the Crown is high. The Court must be satisfied of the accused’s guilt, on thewhole of the evidence, beyond a reasonable doubt (R v CLY, 2008 SCC 2 at paras 6-8).

Justice Karakatsanis writing for the SupremeCourt in R v Vuradin, 2013 SCC 38 at paragraph 21 stated as follows: The paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt aboutthe guilt of the accused: W. (D.), at p. 758. The order in which a trial judge makes credibility findings of witnesses is inconsequential aslong as the principle of reasonable doubt remains the central consideration. A verdict of guilt must not be based on a choice between theaccused’s evidence and the Crown’s evidence: R. v.

Y. (C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5 (S.C.C.), at paras. 6-8. [17] In order not to lose sight of the proper approach to be taken in such a case, to avoid a human tendency simply to compare andchoose which evidence is preferable, the Supreme Court provided direction to trial judges, in R v W(D), (SCC), [1991] 1

SCR 742 . As Justice Cameron explained the “ W(D) ” analysis in R v Menow , 2013 MBCA 72 at paragraph 16 : In W.(D.) , the Supreme Court warned that verdicts of guilt should not be based on “whether [triers of fact ] believe the defence evidence or the Crown’s evidence” (at p. 757). Rather, the paramount question is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused .

To ensure the trier of fact remains focused on the principle of reasonable doubt, the court suggested that the following analysis be undertaken (at p. 758): First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. (Emphasis added.) [ 18 ] The exact wording used by the Supreme Court in W(

D) is not required, but the trier of fact must always ensure that the only exercise is to determine if the Crown has proven the charge beyond a reasonable doubt. [ 19 ] A judge must assess each of the witnesses’ evidence in the context of all the evidence at trial and in terms of its inherent reliability and the likelihood that the events happened as they testified to the events happening.

ANALYSIS OF THE EVIDENCE AND FINDINGS OF FACT Date of the Disclosure [ 20 ] The defence theory is that T disclosed this allegation of sexual abuse to influence the accused getting a harsher sentence than he received for her sister’s abuse. First, it is important to establish when T disclosed. [ 21 ] There were internal and external inconsistencies in T’s evidence about when she disclosed the allegations to her brother and parents. [ 22 ] T testified that the first person she told about this incident was her older brother D.

On the day she disclosed to him she was having a rough day because her sister’s court case had occurred a few weeks earlier in January, 2020 and her sister was having such a difficult time with multiple, serious seizures daily. T blamed herself for her sister’s victimization. In her mind, if the accused had not been interrupted when he was abusing her, he would not have moved on to abuse her sister. Also, her sister was so ill and victimized by the seizures that T felt that she did not want to divert any of her parents’ support away from her sister.

She also worried that it would be expensive and add to financial stress on her parents. She did not understand the court process and thought they would have to hire lawyers. Her brother told her that she had to tell her parents. She told both D and her parents less detail than she told police or in her testimony in court. [ 23 ] All the other evidence in the trial points to T disclosing to her brother in August, 2020. Her brother D testified that it was August 14, 2020. He testified that T appeared to be “kind of at a loss for words” and hurt and sad and her body language was “closed off, kind of in a corner”.

Her father testified that she told him and his wife in September 2020. He testified that when she disclosed to him and his wife, her voice was shaky. He also testified that she had the date because she had a selfie from November 22, 2018, and she showed him the photo. [ 24 ] There was also evidence that the original trial was supposed to take place in January or February 2020, but it did not proceed because the sister had just been released from the hospital. The trial was adjourned until August 2020. It was after that trial that T told her brother and then her parents. [ 25 ] T is simply mistaken.

I find as a fact that T disclosed to her brother in August, 2020 and to her parents in September, 2020. Defence Theory as to T’s Motive for Making the Allegation [ 26 ] The defence argued that T completely fabricated this allegation because of the low sentence that the accused received or was likely to receive in the case involving her sister. I have already noted that T’s sister suffered grievously from the offences committed on her.

The defence theory is that T told her family that the accused also sexually abused her, so that he would receive an additional jail sentence. [ 27 ] The defence theory does not accord with the facts however. The accused had not yet been sentenced when T disclosed the abuse by him. She disclosed in September 2020 and the accused was not sentenced with respect to the sister until June 9, 2021. The defence also argued that the family “would have” known generally what the sentence would be.

That is entirely speculative and there was no evidence supporting it. [ 28 ] I find as a fact that T’s allegation was not motivated by a desire to have the accused receive additional or harsher punishment from the courts. [ 29 ] The chronology of events and the evidence do not support the theory. Credibility and Reliability of the Evidence Generally

[30] T provided the videotaped statement to police on October 6, 2020, when she was 13 years old. She was 16 years old when shetestified at the trial on December 20, 2022. She adopted the contents of her videotape and it was entered into evidence. [31] She had known the accused since she was eight or nine years old. They had a close relationship – he would spoil her withcandy and chocolate and always buy her favourite kind of pizza or whatever she wanted for dinner. She stated and testified that theywere close; she was closer to him than to Auntie T, with whom she had a good relationship.

She called him Uncle G and he wasaffectionate to her, “in an uncle kind of way”. She felt loved and cared for by him. The accused similarly testified that he cared for Tand her siblings and admitted to hugging T. [32] According to her statement and testimony, the incident occurred November 22, 2018. She remembered the date because shetook a selfie that day, and she would only take two or three selfies each week. The photo was dated because she had saved it fromSnapchat.

She showed it to her father when she finally disclosed to her parents. [33] Her sister disclosed abuse by the accused shortly after that, in 2018. [34] Both the videotaped statement and T’s evidence at trial showed her to be a very compelling witness who demonstrated no needor desire to speak ill of the accused. She was very credible. I had no concern that she was revising history to report only negativebehaviour on the part of the accused to demonize him. T testified that he grabbed her “butt” many times in the past, but she did not thinkit was unusual because she was young and her auntie did the same thing.

He also would stick his cold hands up her shirt in a non-sexualmanner as a joke when he had come in the house from outside when having a cigarette. [35] She was able to provide significant detail – about the layout of the office where the allegation occurred, including the thingsthat were on the desk; about her homework assignment – living organisms, and about the accused’s facial expression when he looked“mad” when they heard the door to the house open and close – his eyebrows were pointed down and there were wrinkles on hisforehead. [36] T’s evidence was strong in terms of recounting detail and explaining spatial arrangements and movements, such as herdescription of the physical layout of the office and all the items in it, and how and where various parts of her body were in relation to thatof the accused at the time of the assault.

T appeared to have very good recall generally. [37] T was very candid and did not hesitate to avoid answers that the defence might use to argue against her credibility orreliability. For example, when the defence asked if she had told anyone else about the abuse, she answered that she has seen threetherapists and two guidance counsellors, and that she has discussed it quite a bit with therapists. She explained that the language of her“freeze” reaction comes from her discussions in therapy about fight, flight or freeze reactions to incidents. [38] T’s evidence was not exaggerated nor evasive.

She clearly admitted when she was unsure or did not know the answer to aquestion. [39] She gave a very detailed, individualized, personal and believable explanation for not disclosing the abuse for some time. Thereasons that T provided for not telling her parents for so long has a ring of freshness and truth to it. It was very compelling testimony. Iaccept it. [40] There was no suggestion of collusion. When the defence asked T about the details of the abuse of her sister, she testified, “Tothis day I don’t know the extent of what happened to her.” That has the ring of truth to it.

I accept it. [41] The only significant inconsistency between T’s evidence and that of the other Crown witnesses was when she disclosed to herfamily. I have already stated that this was an error on her part. Clearly, she disclosed to her brother and parents in August and September2020. [42] I am not overly concerned about this weakness in her testimony. When she disclosed the abuse is not material. It is not thegravamen of the offence. [43] She was 12 years old at the time of the abuse, 13 years old when she disclosed it and 16 years old when she testified.

The lawrecognizes that children’s ability to recall this type of information is not as sophisticated as that of adults. Moreover, significant time haspassed and the family, T included, has experienced significant trauma and heartache related to these prosecutions in the interveningyears. [44] The law requires that a child’s evidence is approached not from the perspective of rigid stereotypes, but on what Justice Wilsonin B(

G) called “a common sense” basis, taking into account the strength and weaknesses which characterize the evidence (W(

R) at para26). [45] As the Supreme Court held in R v W(R), it would be wrong to apply an adult test for credibility to this evidence (at para 25). Notwithstanding that T when she testified was 16 years old and appeared to be a bright, competent girl, the offence occurred when shewas 12 and the disclosure took place almost two years later. Even an adult may have difficulty recalling correctly when they first toldsomeone of a crime against them, and then the time they told the next person. In any event, I am not going to accord the same effect as Iwould an adult whose testimony had a similar flaw (W(

R) at para 25, citing R v B(G), (SCC), 1990 CarswellSask 20,[1990] 2 SCR 30 at para 56). [46] Moreover, there was evidence that the original trial involving her sister’s allegations could not take place in January orFebruary 2020, which helps to explain why T thought it was January or February 2020, because she knew she had disclosed some timeafter her sister’s trial. The trial was adjourned until August 2020. It was after that trial date that she told her brother and parents. [47] I would be more concerned if she was not able to recall details of what she alleged happened to her. That was not the casehere.

She remembered the details very well and was consistent throughout her testimony. As Justice Doherty stated for the Ontario

Court of Appeal in R v O(L), 2015 ONCA 394 at para 35, . . . An isolated, minor inconsistency in a sea of otherwise consistent descriptions of the relevant events would have far less impact onL.F.'s credibility and reliability than would several material inconsistencies going to the heart of her allegations. [48] There were no material inconsistencies going to the heart of her allegations in this case.

Not only was the essence of hercomplaint consistent, but the essential and even non-essential details of what occurred that day in the office are consistent, despite arigorous cross-examination (R v F(CC), (SCC), [1997] 3 SCR 1183 at para 49). Any of the weaknesses in her evidencethat were exposed during cross-examination were on peripheral issues.

The evidence about the sexual offences was clear, detailed,consistent and undisturbed on cross-examination. [49] The evidence of her brother and father about her demeanor when she disclosed to them was believable and is consistent withthe state of mind she testified to about the sexual abuse and her reticence to heap more worry and pain on her family. [50] The accused’s evidence was largely consistent with that of T and her family, except for the sexual offences, which was ablanket denial. He also denied ever being alone with T.

He also resiled from admitting to sticking his cold hands up her shirt orgrabbing her bum; he testified only to hugging her and giving her a chaste kiss on the forehead. [51] The accused testified that he was in a 28-day rehabilitation program and then Community Pathways through the AddictionsFoundation of Manitoba (AFM), the Community Pathways portion of the program which allowed for more freedom to find work and beaway from the facility. He started the program October 23, 2018.

He testified he would stay in, because the facility is located in a rougharea of the city, and he would only go out for cigarettes or when his partner (Auntie

T) would pick him up and they would go to the HHresidence. He testified that he was never in the house without Auntie T. [52] He did not seek work. He testified that he had no income and no money, not even employment insurance (EI). He testified thaton the day in question he got a phone at a pawn shop for $100, and then went to the mall to get a phone card for it, and then he andAuntie T went to the HH residence. [53] I do not accept that evidence; T testified that Auntie T had gone to the mall to get a phone for him.

There is no way that shewould have known anything about a phone unless it occurred after Auntie T and the accused were already at her house. I prefer theevidence of T because it makes more sense.

It is more likely that although he and Auntie T may have picked up the phone togetherearlier that morning, Auntie T went to the mall to get the phone card, leaving the accused alone with T in the HH home. [54] The accused agreed to the layout of the office as the Crown witnesses had described it. [55] The accused testified that he remembered T being at home on the day in question and that she came outside while he andAuntie T were having a cigarette, and she asked them to help her with the homework. They went into the office with her and the auntdrew a snake and he helped with the “science side of things”.

Shortly after that, T’s father came home and he passed the homework ontohim. LH was not asked that question and so I afford that evidence no weight. [56] The accused denied that he sexually assaulted T in the office. When he was asked how the rest of the day was, his answer was,“Just a normal day. I went back to AFM.” Only minutes later in his testimony he testified that he did not recall when he returned to AFMand that “I might have gone back for supper. . .

I don’t recall what – if I went back that time or not.” [57] This is case where the accused has denied the allegations in the face of very strong, convincing evidence from thecomplainant. [58] I adopt the reasoning of Justice Greenberg (and the Ontario Court of Appeal) from the case of R v RCRT, 2016 MBQB 2 atparagraphs 22 to 26: This case, like many cases of sexual assault, turns on credibility. I am mindful of the analytical approach suggested in R. v.

W.D., (SCC), [1991] 1 S.C.R. 742, that in deciding whether the Crown has met its burden of proof, I should first determine whetherI believe the accused; second, even if I do not believe the accused, I must consider whether his evidence leaves me with a reasonabledoubt as to what happened; and third, even if I am not left in doubt by his evidence, I must ask myself whether, on the evidence presentedby the Crown, I am convinced beyond a reasonable doubt that the accused committed the offences charged.

If I were considering the accused’s evidence in this case in isolation from the other evidence at trial, I would have no reason to disbelievehim. There were no inconsistencies or contradictions in his evidence. This was not a situation where the accused gave a differentversion of events. His evidence was a straight denial of the allegations with no other factual context. But of course, if he did not committhe assaults, one would not expect anything more. Because the assaults are alleged to have occurred five years before he was arrested, itwould be difficult for the accused to reconstruct events at the time.

Nor is he expected to explain why the complainant might have amotive to lie. But, while there is nothing in the accused’s evidence, taken alone, which would cause me to disbelieve him, I must consider his evidencein the context of all of the other evidence, including the other evidence which the defence called, which, as I will explain, supports theCrown’s case. As explained in R. v. Hoohing, 2007 ONCA 577 at par. 15:

A jury does not consider an accused's version of events in isolation as if the Crown had led no evidence. When the jury is applying thefirst two prongs of the three-pronged test in W.(D.), they are deciding whether they accept the accused's version of events or whether itleaves them with a reasonable doubt. Clearly they can only do that by assessing the accused's evidence and the other evidence thatfavours the accused in the context of all the evidence. See R. v. Hull, (ON CA), [2006] O.J. No. 3177 at para. 5(C.A.).

The evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is given thatis contradictory, or casts doubt on the accuracy or reliability of the witnesses' evidence, that evidence may no longer be believable, or inthe case of an accused, may no longer raise a reasonable doubt. And in R. v. O.M., 2014 ONCA 503, 318 O.A.C. 390, Cronk J.A. said: 45The trial judge did not err by factoring the strength of the Crown's case into his credibility and reliability analyses and by relying on itas one basis for rejecting the appellant's denials of the alleged assaults.

This court has held that an accused's evidence may be rejectedbased on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence of theprosecution's witnesses. In R. v.

J.J.R.D., at para. 53, Doherty J.A. said: An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth ofconflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problemidentified with the way the accused testified or the substance of the accused's evidence. See also R. v. Menow, 2013 MBCA 72, 294 Man. R. (2d) 236. [59] Taken alone, the accused’s evidence was internally consistent and externally consistent with much of the Crown’s case.

Buthis evidence about the nature of his interaction with T and the events of that day is not believable nor does it raise a reasonable doubt, inthe face of the detailed, unequivocal, consistent and believable testimony of the sexual abuse allegation. [60] I reject the accused’s sanitized version of never being alone with T, never sticking his cold hands up her shirt, never pinchingher bum. It was an unnecessary denial; admitting it may have lent some credibility to his version of events.

I find as a fact that theaccused had a history of touching T as she described, grabbing her bum and sticking his hands up her shirt. The accused was not chargedwith any offences related to that touching and the Crown did not rely on these occurrences as evidence of grooming. Nor do I find themto be.

Although they were likely inappropriate or disrespectful to some extent, they do not rise to the seriousness of a sexual offence. [61] His detailed description of the office, largely consistent with the Crown witnesses, seems curious, since there was no otherevidence of him being in the office on a frequent basis. [62] Overall, the accused’s evidence matches that of T, except for the sexual assault: their good relationship, that he was inrehabilitation at the time, that she stayed home that day, that he was outside having a cigarette, and that they then went into the office towork on her assignment.

But in his version, Auntie T was present and there was no sexual assault. [63] When I consider all the evidence in the trial, I do not believe the evidence of the accused and neither his evidence nor thedefence have been able to raise a reasonable doubt in my mind. The evidence I do accept has satisfied me beyond a reasonable doubt ofthe accused’s guilt. DECISION [64] I am satisfied beyond a reasonable doubt that GSL sexually assaulted and sexually interfered with T on or about November 22,2018. I therefore convict him of the offences of sexual assault and sexual interference. Original Signed by Judge C.A.

Devine C.A. DEVINE, P.J.