2018 NBPC 4, 2018 NBPC 4

CANADA 2018NBPC04 PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT HER MAJESTY THE QUEEN - and- I.J. TRIAL held before the Honourable Judge Marco R. Cloutier, at Saint John, New Brunswick. Date of decision, May 9, 2018. APPEARANCES : Christopher T. Titus, on behalf of Her Majesty the Queen Andrew Pollabauer, on behalf of the Accused No information shall be published in any document or broadcasted or transmitted in any way which could identify the victim or any witness in these proceedings pursuant to s. 486.4 of the Criminal Code .

There is also a publication ban on the identity of the accused or on any information which could reveal his identity. I. Introduction [ 1 ] The accused, I.J. (“the a ccused”), is charged that between June 1 st , 1996 and December 24th, 2005, in Saint John, New Brunswick, he committed the indictable offence of sexual assault on A.B. contrary to s. 271(1) (

a) of the Criminal Code . II. Evidence ( All efforts have been made to preserve, where possible, the wording used by witnesses.) [ 2 ] The Crown called the following witness at trial:

a) A.B. (the complainant). [ 3 ] The Defence called the following witnesses at trial:

a) C.D.;

b) E.F.;

c) G.H.; and

d) I.J. (the accused), the complainant’s father. [ 4 ] I will neither repeat nor summarize the evidence of each witness. Suffice it to say, however, that the evidence of each was considered. A.B.’s evidence [ 5 ] The 32-year-old complainant testified as follows during her examination-in-chief: • She moved in with her father when she was 3-4 years old. Her mother subsequently passed away; • The accused eventually remarried to G.H. and the couple had three children: C.D, E.F., and K.L.;

• During the summer of 1996 or 1997, around June, while residing at Y.Z., in Saint John, New Brunswick, the accused sexually assaulted her. She was in between grade 5 or 6. He took her upstairs in the bedroom he shared with his wife, G.H., to watch a movie. G.H., C.D. and E.F. were sleeping in the tent trailer in the yard. G.H. may or may not have been pregnant with K.L. at the time.

At one point, the accused stripped her down to her top, put a pillow over her head, told her it was ok, and put his penis in her vagina thus taking her virginity; • She says the accused did not ejaculate because she does not remember cleaning anything afterwards and she recalls the kids interrupting to come in and use the bathroom. She also recalls that when the pillow came off of her head, the accused had no clothes. The accused also said that it was ok – fathers and daughters do this; • The sexual assault occurred “3, 4, 5 days a week kind of thing”.

It would happen at times when G.H. was in the house or bringing the kids to the playground. The accused always did the same thing. “Sometimes in my bedroom; sometimes in his”. He always took his clothes off, then her pants, but never her top. He touched her and then penetrated her with his penis. When he finished, he would pull out, ejaculate on her stomach and make her clean it. She was always on her back; • The accused told her: “You remind me of your mother and I love you”. He also threatened to kill her if she were to tell anyone.

She also recalls that the accused is circumcised; • The complainant recalls one particular incident. She was in about grade 8. The accused got G.H. and her drunk. G.H. went to sleep upstairs. The accused wanted to have sex. She felt she had no choice; she did. They began having sex in the living room on the couch. As always, she had her shirt on and she says: “he was completely naked as always”. G.H. suddenly came down the stairs crying and said: “I know”; • The sexual assaults occurred “hundreds of time”; • All of this came to an end when she was in grade 9.

She explains that when her father found out that she had a boyfriend, he chased her with a steak knife and she moved out; • The accused also watched while she was taking showers. “This only came to mind while I was going through counselling”, she adds; • When she was much younger, they resided in Grand Bay.

The accused did not “molest” her then but “he was always touchy and always had me on his lap”; • After the assaults, the accused often bribed her, namely by offering money, treats or inviting friends over for the night; • Most times, the sexual assaults occurred either in the accused’s and his wife’s bedroom, in her own bedroom but seldom in the living room; • When driving by Value Village one day, the accused touched her vagina. She had hoped that the occupants of the truck next to them would notice.

When they got home, they had sex in the accused’s and G.H.’s bedroom while the rest of the family was playing basketball in the yard; and • She testified that there is one thing she “never told anyone yet”. Thus, a short adjournment was granted for Defence Counsel to consider and canvass with the accused.

The complainant said that, at one point, the accused wanted to move to the “States” with her and leave behind the rest of the family. [ 6 ] A lengthy cross-examination of the complainant revealed the following: In 2011, A.B. disclosed to G.H. (the accused’s wife) that she had been sexually assaulted by the accused. In 2015, she disclosed the abuse to police; The accused sexually assaulted her at Y.Z., once or twice a week, in her bedrooms (including one which she shared with her new born brother) or in the accused’s and G.H.’s bedroom.

This also occurred in the day time while the rest of the family was downstairs, in the

yard, kitchen, living room or in their respective bedrooms. Quite often, she was assaulted in her bedroom while G.H., the accused’s wife, was right next door in the living room; She also explains that while being assaulted in the bedroom she shared with K.L., the door was always open; They resided at Y.Z. for about a year or two. When they moved to W.X., the assaults became more frequent, up to five (5) times a week; It was at W.X. that the Accused watched A.B. shower in the bathroom.

She recalls there was a shower curtain there; The accused and his wife G.H. drank with her as she reached the age of about 12-13 years old; When they moved to W.X., the abuse would occur, quite often, upstairs in her bedroom, either in the daytime or nighttime. D-1 depicts the layout of the second story where her bedroom was located at the end of a small hallway right next to her sibling’s rooms. C.D.’s and E.F.’s bedroom was just next door to A.B.’s. K.L.’s bedroom was just on top of the stairs. She candidly admits that none of the bedrooms had doors.

She feels that “it was always strange to her” that the abuse would occur multiple times per week, in broad daylight, in her bedroom, upstairs while there was no door on any bedroom; and After her KGB statement was put to her on cross examination, A.B. was uncertain if the accused ejaculated or not the first time she was abused at Y.Z. C.D. [ 7 ] The first Defence witness was the accused’s daughter, C.D. She was 25 years old at the time of trial. [ 8 ] She drew diagrams D-1 and D-2 depicting the layout of the residence at W.X. and Y.Z. respectively.

Her description matched that of the complainant’s but, as I understand, she said there was no shower at W.X. Otherwise, she described the bathroom in great detail. [ 9 ] She estimated being about 8 years old when she moved into W.X. There were no bedroom doors upstairs in the small hallway. A.B. had her bedroom next to hers and E.F.’s. K.L. had his on top of the stairs immediately upon entering the hallway. She was about 9 or 10 years old when they moved out of W.X. She was 8 or 9 years old when A.B. moved out.

She says her father never went upstairs given health issues, except for this one time when a bat entered the residence. She also remembered a discussion with her father about K.L. getting circumcised, perhaps in 2008 or 2009. At the time, the accused indicated that he too was circumcised. [ 10 ] She described how she often played in her bedroom while, most of the time, A.B. would listen to music in her bedroom next door. By times, however, A.B. played with her outside. She claims she never observed any signs of sexual assaults between her father and A.B. E.F. [ 11 ] E.F. was 23 years at the time of trial.

He said he was three (3) years old in 1997 when they lived at Y.Z. and about five (5) years old when they moved to W.X. He too stated that his father was very seldom upstairs at W.X. He had mobility issues because of a back injury. He was about six (6) or seven (7) years old when they moved out of W.X. There was no shower at W.X., just a bathtub. He added that while discussing religion, his father mentioned that he was circumcised. He concluded by saying he never witnessed any sexual assault in the household while A.B. resided with them. G.H. [ 12 ] G.H. is the accused’s wife.

She was 45 years old at the time of trial. She described that while residing at Y.Z., she got pregnant with K.L. in the spring of 1997. She had a complicated pregnancy in that she almost had a miscarriage within 20 weeks. Therefore, by summer 1997, she was essentially on bed rest and there is no way she could sleep in the tent trailer on her own with the kids. [ 13 ] She too was adamant that there was no shower at W.X. [ 14 ] She was never a drinker. Therefore, she denied drinking with her husband and A.B. or providing alcohol to her.

She also denied the allegation suggesting that one evening she came down the stairs crying after drinking and saying: “I know”. [ 15 ] She too testified that the only occasion when the accused went upstairs at W.X. was when a bat entered the residence. He had great difficulty with his mobility because of back pain. He barely moved with crutches and, by times, he was simply crawling. [ 16 ] She never noticed any signs of sexual assaults between the accused and A.B.

Otherwise, she would have addressed it. [ 17 ] She added that A.B. left the house in 2001 but she came back for a few months in 2002. [ 18 ] She concluded by saying that, at all relevant times, it would be impossible for the accused and A.B. to be alone. There was always someone around. I.J., the accused [ 19 ] I.J. testified at trial. He was 54 years old, unemployed and apparently disabled as a result of a serious back injury which occurred in 1995. [ 20 ] He vehemently denied any allegation of sexual assault vis-à-vis his daughter A.B.

To use his words, “I cannot give you an answer on something that did not happen”.

[21] In a general way, he described the layout of Y.Z. and W.X. as is depicted on D-1 and D-2 respectively. He explained that A.B.’sallegations were ridiculous. He would never let his wife sleep in the tent trailer on her own with kids in 1997; she had such a complicatedand at risk pregnancy. He would not “put her and the child in danger”, he explained. He also indicated that there was no shower at W.X.It follows, therefore, that the allegation suggesting he watched A.B. shower cannot be true. [22] Also, he stated that he did not have the opportunity to sexually assault A.B. “hundreds of times”.

He was in constant pain and hehad severe mobility issues. For the same reasons, he never went upstairs to A.B.’s room. He also found it ridiculous that he wouldsexually assault A.B. while the rest of the family was either present in the house or nearby. Further, there was no door on any of thebedrooms upstairs. He stressed that the hallway at W.X., where the kids’ bedrooms were, including A.B.’s, was no more than five (5)feet long. [23] He admitted to assaulting A.B. in 2001 (not a sexual assault but a common assault) in circumstances where he felt “she was beingmouthy”. He also did not approve of her boyfriend.

At any rate, he subsequently pleaded guilty to a common assault charge in relation tothis 2001 incident. A.B. then left the house but she returned briefly in 2002. [24] The accused related a discussion he had with A.B. with respect to circumcision. He suggested to her that her son ought to becircumcised while he was young. At the time, he disclosed to her that he was himself circumcised. [25] The accused admitted drinking on occasion but he denied providing alcohol to A.B. [26] Finally, the accused conceded that, by times, he could have been alone in the house with A.B.

Later in his evidence, he clarifiedthat others would be in the house though. He finally added, however, that he was never alone with A.B. in the car. III. Issue [27] Set out interrogatively, the central issue in this case can be framed this way: when applying the W.(D.), (SCC),[1991] 1 S.C.R. 742 analysis, has the Crown proven the charge beyond a reasonable doubt? IV. Law [28] The Crown bears the onus of proving the charge faced by the accused beyond a reasonable doubt. In R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320, at paragraph 39, Cory, J. described this standard as follows: 39 Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give thebenefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonabledoubt. [29] In R. v. Starr, 2000 SCC 40, the Court described the level of proof as "much closer to absolute certainty than to ... balance ofprobabilities." The burden remains on the Crown throughout.

Proof of probable, or likely guilt, is not enough. [30] This charge is historical in nature, dating back to incidents alleged to have begun some 20 years ago when the complainant was atleast 11-12 years old. As such, while now an adult, the complainant is recounting events from her childhood. While not a child witness,an assessment of her evidence must nevertheless recognize that some details might be missing from her memory. [31] In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessedaccording to criteria applicable to her as an adult witness.

Yet with regard to her evidence pertaining to events which occurred inchildhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in thecontext of the age of the witness at the time of the events to which she is testifying: R. v.

W.(R.), (SCC), [1992] 2 S.C.R.122. [32] Put differently, while the credibility of the complainant is thus to be assessed against the adult standard, inconsistencies inperipheral matters should be assessed in the context of her age at the time of the alleged abuse. [33] Here, I place no weight on the fact that the complainant, allegedly victim of sexual assaults while a child, did not complain in atimely way. It is trite that reliance on a stereotype to assess credibility bearing on reasonable doubt is impermissible.

Stereotypicality isnever a legitimate anchor on which to tie crucial credibility assessments in the context of sexual assaults. After all, such an argument isbased on a "stereotype which found expression in the now discounted doctrine of recent complaint". It has not escaped my mind that, inreality, "victims of abuse often in fact do not disclose it, and if they do, it may not be until a substantial length of time has passed". W.(R.), supra at par. 30. [34] This case will be decided as a matter of law according to the principles set out by the Supreme Court of Canada in R v W. (D.) (SCC), [1991] 1 S.C.R. 742.

Essentially, Cory J. provided a simple set of procedural instructions which he thoughtwould be helpful in deciding cases involving credibility. He stated: 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 [still] 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 whichyou accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [35] In another case, R. v. H. (C.W.) (1991), (BC CA), 68 C.C.C. (3d) 146 (B.C. C.A.), the British Columbia Courtof Appeal further suggested:

“I would add one more instruction in such cases, which logically ought to be second in the order, namely: If, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit”. [36] In assessing the evidence of the accused, I am entitled to consider it in the context of all of the other evidence, including theevidence of the complainant. In doing so, I am not only permitted, but also encouraged, to compare the evidence of both the Defence andthe Crown. See R. v. Mends, 2007 ONCA 669 at par. 18 and R v Carriere (2001), (ON CA), 159 C.C.C. (3d) 51 atpar. 48 (Ont.

C.A.). [37] In R. v. Jones (1992), (QC CA), 74 C.C.C. (3d) 377 (Que. C.A.) at pp. 379-380, Proulx, J.A. admirablyexplains that while the search for and the determination of truth remain legitimate objectives for the trial judge, his role is nonethelesslimited by the fundamental principles which govern the burden of adducing evidence and of persuasion.

Because of the presumption ofinnocence, when the judge is confronted with contradictory versions, he does not have to decide which one of these versions is true butrather whether the evidence as a whole raises a reasonable doubt, or whether it satisfies him beyond a reasonable doubt as to the guilt ofthe accused. [38] I would fine tune Justice Proulx’s comments in two respects. First, judges are not equipped with supernatural powers or favoredwith special insight allowing them to assess and rank credibility.

Second, the ultimate issue is not credibility but reasonable doubt. [39] It also bears underscoring that the trial judge does not have to decide who was telling the truth. The question, rather, is whetherthe Crown has proven the charge beyond a reasonable doubt. [40] One more point. Making credibility findings does not involve science. A trial judge is not to deal with every piece of evidence inthe context of his credibility findings. He or she is not duty bound to do so.

Credibility findings can be difficult to articulate withprecision, particularly bearing in mind the complex intermingling of impressions that emerge after a full trial: R v Gagnon 2006 SCC 17 , [2006] 1 S.C.R. 621 at par. 20 and R v Dinardo 2008 SCC 24 , [2008] 1 S.C.R. 788 at par.26. Applying the law to the facts of this case [41] Do I believe the accused I.J.? [42] There are features of the accused’s evidence which are highly problematic. I find his evidence was overall disjointed.Regretfully, I note that I.J. took every opportunity at trial to take cheap-shots at his daughter, A.B.

For example, I.J. stated that “A.B.’schurch lessons never sunk in”. Equally noted, A.B. stated that she did not remember anyone feeding her infant brother K.L. Her parentswould simply put a bottle in his bed and walk away. I recognize that there was obvious animosity between the complainant and the restof her family. In my opinion, however, there was no reason to turn the trial into an exposé of the alleged failings and deficits of familymembers. [43] With respect, some of the accused’s testimony defied common sense and was plainly unbelievable.

I.J. testified that he neverstepped foot upstairs in the complainant's bedroom at W.X. He adds that he only went upstairs where the children’s bedrooms were onone occasion - when a bat entered the residence. In my view, this is implausible. Recall that the family lived there for about two (2)years. I find there was an obvious attempt by I.J. to make it sound like the allegations against him are impossible to be true. [44] Further, the accused, at times, was inconsistent in his evidence and became a moving target on cross examination.

For example,he first admitted that between 1997 and 2001, he would, on occasion, be alone at the house with his daughter A.B. As his evidenceprogressed, however, he attempted to recant this statement, namely by saying he meant that there was always somebody around so hewould not have the opportunity to commit the alleged sexual assaults. He also explained that he was never alone in the car with A.B. Inmy view, this appears implausible. [45] There was another obvious attempt by I.J. to make it sound like the allegations against him are just physically not possible.

Hetestified that he could “barely get around” and that “half the time he could not walk” following injuries suffered in 1995. Yet, the totalityof the evidence indicates that he had the ability to father a child who was born in 1997. [46] I conclude that there are many significant credibility concerns with the accused's evidence.

Therefore, I am compelled to turn tothe second stage of the W. (D.) analysis. [47] To adopt the reasoning of Goldstein J. in R v Zoleta [2013] O.J. 1398 (QL), I find that, in all the circumstances, especially as itrelates to the allegations within the residence, the possibility of detection would have been so high as to make the sexual activity of thekind described by A.B. phenomenally risky.

When stacked up against the overall factual matrix, I find that this extreme riskiness is anobjective extrinsic factor that tends to support the accused’s testimony. [48] I would give very little weight, if any, to C.D. and E.F.’s evidence suggesting they never noticed any sexual assaults betweentheir father and A.B. Because they were of such a young age at the time, I expect they would rather be busy playing Lego or with othertoys. That said, the other part of their evidence, along with that of the accused’s wife, G.H., tends to indicate that there was no shower atW.X.

C.D.’s evidence also tends to suggest that circumcision was not a taboo subject in the family. Similarly, G.H.’s evidence tends toindicate that it would be unlikely she would sleep in the tent trailer during the summer of 1997 given her high risk pregnancy. Finally,G.H.’s evidence, coupled with that of C.D.’s, also tends to indicate the layout of the residence at W.X and Y.Z. was such that the sexualassaults in circumstances described by the complainant would be phenomenally risky and arguably implausible.

[49] After considering all the evidence, am I able to decide who to believe? To answer this question, I must analyze the complainant’scredibility in addition to and in light of the evidence of accused and all other evidence. [50] I first pause to make parenthetical remarks: In applying the W.(D.) analysis, care must be taken to ensure the trial judge’sassessment of the evidence is not infected by what is oft referred to as a “Gostick error”.

In R v F. (J.) (2003), (ONCA), 177 C.C.C. (3d) 1 at par. 90, the Ontario Court of Appeal summarized a “Gostick error” as an approach to the evidence whichbases credibility decisions on demeanour, approaches the evidence with a harsher standard of scrutiny for the Defence than for theCrown witnesses and which accepts the complainants' evidence as true, then proceeds to discredit the contrary evidence. [51] According to the complainant, the sexual assaults occurred repeatedly “hundreds of times” in circumstances where most wouldoccur “3, 4, 5 times a week” at W.X. The accused would “get completely naked”.

She adds: “he was always naked”. All the while hersiblings, albeit much younger, would be in their bedrooms next door literally a few feet away. It has not escaped my mind that thehallway was just about five (5) feet long. Further, there was no door on any bedroom. The accused’s wife, G.H., would often be present.To use the words of Burrage J. in R v R. (G.) [2015] N.J. 51 (QL), I conclude that it is improbable, given the frequency of theseincidents, the obvious nature or the accused’s actions and the proximity of other family members, in particular, that such acts would gounnoticed for “hundreds of occasions”.

I find this implausible. [52] An implausible account gives rise to a credibility issue: R v S. (A.) [2014] O.J. No. 5769 (QL). [53] The Defence points out that there is a discrepancy between A.B.’s evidence at trial and what she related to Cst. Frost in her KGBstatement. Although it appears that in her KGB statement she described that the sexual assaults increased to 2, 3 times a week at somepoint, as opposed to 3, 4, 5, I am not troubled by this imperfection in her evidence. I accept that it would not have made much of adifference in her eyes. V.

DISPOSITION [54] After careful consideration of all the evidence, I do not know whether to believe the accused or the complainant on the keyelements of this charge. I have outlined above my concerns with the evidence of both the accused and the complainant. Because of thepresumption of innocence and the burden of proof upon the Crown to prove the accused’s guilt beyond a reasonable doubt, the accused isentitled to the benefit of the doubt. I conclude I must enter an acquittal. Therefore, I find the accused not guilty. I hope that A.B.understands that this is not meant as a rebuke of her.

Dated at Saint John, New Brunswick, this 9th day of May, 2018. ________________________________________ Marco R. Cloutier Judge of the New Brunswick Provincial Court