R. v. J.M.M., 2012 NSSC 382

SUPREME COURT OF NOVA SCOTIA Citation: R. v. J.M.M., 2012 NSSC 382 Date: 20121102 Docket: Syd. 346663 Registry: Sydney Between: Her Majesty the Queen v. J. M. M. Editorial Notice Identifying information has been removed from this electronic version of the judgment. Restriction on publication: Pursuant to s.486.4 of the Criminal Code of Canada Judge: The Honourable Justice Cindy A. Bourgeois Heard: October 22, 23, 24, 25, November 2, 2012, in Sydney, Nova Scotia Counsel: Gerald MacDonald, for the Crown Tony Mozvik, for the Defence By the Court : [ 1 ] J. M.

M. stands charged that between the 18 th day of June 1990 and the 17 th day of June 1996, he did, at or near [...], Cape Breton Regional Municipality, commit three offences against the complainant, J. D. M., namely: Sexual assault contrary to Section 271(1) (

a) of the Criminal Code ; Threaten to cause bodily harm to the complainant’s parents contrary to Section 272(2) (6) of the Criminal Code ; and

Did for a sexual purpose, touch the complainant, a person under the age of 14, with his penis, contrary to

Section 151 (

a) of the Criminal Code . [ 2 ] The Crown called as its sole witness the complainant, who is presently 31 years of age. The acts alleged in the indictment occurred when he was between 9 and 15 years of age. [ 3 ] The accused testified on his own behalf and denied any acts of sexual misconduct in relation to the complainant. Several other witnesses were called on behalf of the accused. [ 4 ] The complainant testified that he was, to use his terminology, “ molested ” by the accused on a regular, frequent and ongoing basis for several years.

He testified he did not keep track of the dates or exact frequency of the individual instances of molestation, but testified this included multiple instances of mutual fondling and the mutual performance of fellatio. The complainant testified the accused threatened that if he told anyone about these occurrences, he would kill him and his parents.

The nature of the threats changed in later years to include getting his father in trouble with authorities for working under the table as well as threatening to tell the complainant ’ s friends about the sexual acts. [ 5 ] The complainant was able to provide evidence surrounding specific acts, including most notably, the very first instance of molestation which took place when he was 9 or 10 years of age. The complainant testified it occurred in the accused ’ s bedroom when he was residing in a mobile home in the [...] trailer park.

The complainant testified the accused had him fondle him while they were watching a pornographic movie. The complainant recalled the characters in the movie and the nature of the sexual acts being portrayed. It was shown on a small television and VCR in the accused ’ s bedroom. Evidence was provided as to the contents of the bedroom and general furniture placement. [ 6 ] The complainant testified as to another specific incident, which he asserted was on the day the accused moved from the [...] trailer park to his new home on [...] Street.

The complainant could not recall the exact date, but indicated it was in October, as the weather was cold. The assault took place in the evening, on the day of the move. He testified he had helped the accused move various belongings to his new home and was asked by his father to stay the night to assist the accused in setting the house up. The complainant testified there was no power or heat, other than two kerosene heaters.

He testified the accused molested him for hours that night, first on the couch and later in the bed. [ 7 ] The complainant testified as to another specific instance of abuse, this one involving his younger sister. The complainant, who was around 11 years of age at the time, was directed by the accused to have sex with his sister. The accused directed the two children in terms of the sex acts he wanted them to engage in. This took place in the complainant ’ s grandmother ’ s garage. [ 8 ] The complainant also testified that he was also assaulted multiple times in his grandmother ’ s basement by the accused.

These events, which the complainant placed at approximately ten separate incidents, occurred around Christmas time, and in conjunction with the accused retrieving outside Christmas decorations from storage in the basement. The complainant testified he would assist the accused with the decorations, and was assaulted by him in the basement, including fondling and fellatio. [ 9 ] The complainant also testified that numerous incidents of sexual abuse took place in the garage located at his grandmother ’ s home. The accused was frequently in the garage working on cars, bikes and carpentry projects.

He would call the complainant into the garage, close the doors, and engage in acts including mutual fondling and fellatio. The complainant testified this occurred on average, four to five times per week. [ 10 ] The complainant testified that on one occasion the accused attempted anal sex, but was unable to achieve penetration due to the large size of his penis. [ 11 ] The complainant testified that the accused had a scar running down the middle of his chest, which he noted during the acts of molestation.

[12] The complainant further conveyed to the Court an incident where the accused had him peer into the bathroom at his naked wifewho was showering, and that the accused had shown the complainant various Polaroid photographs of his wife, in some of which shewas naked. The accused provided the complainant with one of the photographs, which showed the wife from the neck down, and wasinstructed to look at it while masturbating. [13] The complainant testified he did not consent to the sexual activities with the accused and felt compelled to participate in themdue to the threats against himself and his parents.

All of the alleged incidents occurred in [...] , Cape Breton Regional Municipality. The Law: [14] As both Counsel have submitted, the matter before the Court is “a classic W.(D.) case”. Of course what is being referenced isthe seminal decision of the Supreme Court of Canada in R. v. W.(D.) (SCC), [1991] 1 S.C.R. 742, which addressed howa jury should be charged when the credibility of the complainant is pitted against that of the accused. The instruction contained thereinis equally applicable to judge alone trials.

The essence of the decision is contained in paragraphs 27 and 28 of the decision as follows: 27 In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue.The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, thetrial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused.

Second, ifthey do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in thecontext of the evidence as a whole. See R. v. Challice (1979), (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), approved inR. v. Morin, supra, at p. 357. 28 Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. Atrial judge might well instruct the jury on the question of credibility along these lines: 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 whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement thatthe Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law.

Every effort should bemade to avoid mistakes in charging the jury on this basic principle. [15] An accused is presumed to be innocent. It is the sole burden of the Crown to prove the accused’s guilt beyond a reasonabledoubt. The accused does not have to prove his innocence. Although those statements seem elementary to those with even a rudimentaryunderstanding of our criminal justice system, the case law is replete with examples of where trial judges have wandered astray from thisfoundation when faced with competing testimony of complainant and accused. Justice Matthews in R. v.

Brown (1994) 132 N.S.R. (2d)244 (C.A.) describes the difficulty as follows: [27] Here, as with many cases of sexual assault, credibility of the complainant and the accused is a major issue. In such cases there isalways the danger, as the case law attests, that the trial judge will be lured into seeing the issue as whether to believe one or the other.Not only is that not in accord with the law, it may have the effect of shifting or reducing the burden of proof.

To repeat: the questionwhich the trier of fact must answer is not simply respecting the belief in the testimony of the witnesses but whether, the whole of theevidence leaves that trier with a reasonable doubt as to the guilt of the accused.

[16] Given the age of the complainant when the alleged incidents occurred, the Court must be mindful to assess his evidence, and inparticular, inconsistencies contained therein with such in mind. As recently reiterated by our Court of Appeal in R. v. J.M.M., 2012NSCA 70, a trial judge must exercise caution in the assessment of “child” witnesses. Saunders, J.A. for a unanimous Court writes asfollows: 48 In a case like this one, the strong warning expressed by McLachlin, J. (as she then was) in R. v. W.(R.), (SCC),[1992] 2 S.C.R. 122, at p. 134 is especially apt.

The Chief Justice observed: As Wilson J. emphasized in B.(G.), (SCC), [1990] 2 S.C.R. 30, these changes in the way the courts look at theevidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence ofadult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocentperson require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child.

What the changes do mean is thatwe approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis,taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.

It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or"child" standards -- to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments inthe law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is anindividual, whose credibility and evidence must be assessed by reference 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 whenshe was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to herevidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such astime and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. [17] I have also found instructive the comments of Saunders J.A. in R. v.

D.D.S., 2006 NSCA 34, in particular, his guidancerelating to the trier of fact’s assessment of credibility. The effect of inconsistencies in the evidence to the ultimate credibilitydetermination has applicability to this case. The Court quotes with approval Rowles, J.A. of the British Columbia Court of Appeal in R.v. R.W.B. [1993] B.C.J. No. 758, who addresses the impact of inconsistencies as follows: 29 In this case there were a number of inconsistencies in the complainant's own evidence and a number of inconsistencies between thecomplainant's evidence and the testimony of other witnesses.

While it is true that minor inconsistencies may not diminish the credibilityof a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt aboutthe reliability of the witness' evidence. There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least thetrier of fact should look to the totality of the inconsistencies in order to assess whether the witness' evidence is reliable. This isparticularly so when there is no supporting evidence on the central issue, which was the case here.

Determination: [18] The fundamental question this Court must determine is whether the Crown has proven the three charges against J. M. M.beyond a reasonable doubt. [19] Reasonable doubt, as illustrated in the three steps posed in W.(D.), can arise in any number of ways. Where the accusedtestified, as here, reasonable doubt can be raised if his evidence is either believed or raises a reasonable doubt regarding the Crown’sevidence.

Further, reasonable doubt may arise upon considering other evidence presented either by the Crown, such as in the course ofthe complainant’s cross-examination for example, or in other evidence called on behalf of the accused. [20] I have carefully considered all of the evidence before the Court. In my view, the Crown has not proved its case beyond areasonable doubt, and as such, J. M. M. is entitled to an acquittal on all three charges. I will provide, as is required, my rationale for thisdetermination.

[ 21 ] I will begin with the evidence of the complainant. I agree with Crown counsel ’ s submission, that the complainant ’ s testimony did contain certain “ hallmarks of truthfulness ” . I also recognize that in assessing his evidence, the Court must be mindful that his memories of certain events relate to periods of time when he was not yet a teen or pre-teen.

It is accordingly understandable that his recall of certain details of alleged multiple incidents may be less precise than what would be expected from an older person. [ 22 ] In my view, however, there are several inconsistencies in the complainant ’ s evidence which not only give rise to reasonable doubt, but in my view, negatively impact on the complainant ’ s credibility in a broader fashion. Most of these troubling inconsistencies were brought to light by Mr. Mozvik ’ s cross-examination.

Most of them centre around discrepancies in the complainant ’ s trial evidence to that in two earlier police statements, as well as his testimony at the preliminary inquiry. [ 23 ] I will provide examples. In cross-examination, the complainant was asked about an event when he disclosed the alleged abuse to his aunt K.. They were sitting in her car. At that time, the accused pulled up in another vehicle. The complainant testified he angrily confronted the accused, wanting to fight him.

In terms of the accused ’ s response to being accused of sexual abuse, the complainant testified “ M. was speechless - he hung his head and said nothing ” . [ 24 ] Mr. Mozvik then put to the complainant the contents of his second police statement where, in describing the same exchange, the complainant stated that the accused said he was sorry for the abuse and that he didn ’ t mean to do it. [ 25 ] The complainant gave police statements in May of 2009 and June of 2010. He would have been 28 and 29 years of age at the time.

It is unclear when exactly the confrontation with the accused took place, but it was clearly within the few years preceding the first police statement, as the complainant and others testified he maintained a good relationship with the accused well into his mid-twenties. [ 26 ] One would think that the confrontation of an abuser and his response thereto, in particular an apology, would be something which would imprint strongly on an adult ’ s memory.

In particular, it is disconcerting that at trial, the complainant apparently forgot that the accused had apologized for the abuse as initially described in the 2010 police statement. [ 27 ] In describing the first alleged incident of sexual abuse, the complainant originally testified at trial that only the accused ’ s oldest child was born at the time. When presented with the preliminary inquiry transcript, the complainant adopted the evidence given on that occasion, that both children were born.

Although this may initially appear as being quite an inconsequential inconsistency, whether or not the accused ’ s youngest child was born has significance when considering the complainant ’ s evidence regarding the contents of the accused ’ s bedroom. The complainant did not recall a crib being in the bedroom. [ 28 ] In describing the alleged incident where the accused had the complainant peer in at his wife in the bathroom, the complainant was asked whether the accused was masturbating.

His evidence varied at trial from not being certain, to then saying yes, he was masturbating, to concluding that he was not masturbating. When presented with the preliminary inquiry evidence, the complainant adopted that earlier evidence, that the accused was masturbating during that incident. [ 29 ] The complainant testified in direct as to an incident where he was forced by the accused to have sex with his younger sister in his grandmother ’ s garage. He confirmed on cross-examination that he had sex with his sister “ just one time ” . Mr.

Mozvik then read to the accused a portion of his second police statement where he described a similar incident with his sister which occurred at the accused ’ s direction, but at the complainant ’ s father ’ s home. In response to Defence counsel ’ s pressing as to the number of times the accused forced the complainant to have sexual relations with his sister, the complainant agreed it could have been twice or it “ could have been a dozen times ” . [ 30 ] Forcing a child of 11 or 12 to have sex with anyone is a disgusting and despicable act.

Involving a sibling in that pushes it even further outside what right-minded members of our society view as acceptable behaviour. Notwithstanding his age, and his stated embarrassment about such activities, it is highly disconcerting that the now adult complainant would initially testify under oath that one such incident occurred, only to later agree that such could have occurred at least twice and up to a dozen times. This is simply the type of act that one would expect to recall happening more than once.

Having recalled two instances when providing a statement to the police, the Court wonders how possibly, at trial, the complainant only initially recalled such an event occurring once.

[ 31 ] The above inconsistencies, as well as other aspects of the complainant ’ s evidence, lent a strong impression that to borrow Mr. Mozvik ’ s words, he was making it up as he went along. On this point, I raise one final aspect of the complainant ’ s evidence. The complainant testified in his direct examination that when he was 11 or 12 years of age, he overheard a conversation between his grandmother and the accused. His grandmother was asking the accused whether he had ever touched the complainant ’ s younger sister, as the girl had reported such to her.

The complainant testified that the accused in this conversation denied any touching of the girl. [ 32 ] On cross-examination, the complainant confirmed that this overheard conversation had not been referenced in either of his two police statements nor in his evidence at the preliminary inquiry. The complainant testified that he had only remembered this conversation taking place within the weeks preceding this trial. [ 33 ] I find this assertion troublesome. The evidence before the Court discloses that the accused was previously charged with similar sexual offences against the complainant ’ s sister.

The complainant was well aware of the matter before the Court involving his sister. According to the evidence, he was present at the preliminary inquiry held in relation to those offences. He has expressed a strong desire that his sister obtain justice for the acts allegedly perpetrated against her. Yet, with this backdrop, the complainant asserts he only remembers a conversation pertaining to his sister making a disclosure of sexual abuse to her grandmother, a few weeks before this trial. The Court finds such an assertion difficult to accept. [ 34 ] I turn now to the evidence of the accused. J. M.

M. denied any and all acts of sexual impropriety between himself and the complainant. He further testified as to various contextual facts which would make the allegations of the complainant unlikely. This included evidence that the accused either did not have the opportunity to commit the offences, or his opportunity was much more restricted than what the frequency of incidents as suggested by the complainant would allow. [ 35 ] The accused is not a well educated person. Although having a tendency to elaborate beyond the question posed to him, his answers were otherwise straightforward.

There were no major inconsistencies in his evidence, and certainly nothing that challenged in any material way his global denial of the allegations. [ 36 ] The accused, as noted above, also testified as to certain matters which when compared to the complainant ’ s evidence, could give rise to a reasonable doubt. The accused testified that contrary to the complainant ’ s assertion, the boy did not stay at the new [...] Street home on the evening of the move. The accused testified that his brother-in-law, M.D., stayed the night.

The accused also testified that the following day, his wife and children moved to the new trailer despite the fact that power and heat was not hooked up for several days thereafter. This was necessitated due to them running out of oil at the [...] trailer. Although most of the larger furniture had been moved to the house on the first day of the move, the beds did not arrive until the second day, as his wife and children still required them for the last night at the [...] trailer. [ 37 ] I accept the accused ’ s evidence that on the first evening of the move that M.D. was present.

I further accept that his wife and children moved into the new home the following day, and the beds were brought at that time. These conclusions, by necessity, give rise to real and significant doubt as to the complainant ’ s evidence that he was molested on the first night of the move, including in a bed. Given that the accused ’ s wife and children were present on subsequent nights, it casts doubt as well, that the alleged incident could have occurred perhaps on the second or third night. [ 38 ] As noted earlier, a number of witnesses were called and provided evidence on behalf of the accused.

This included two sisters, three brother-in-laws, the accused ’ s children and a friend. The purpose of their evidence was to raise doubt as to the plausibility of the complainant ’ s allegations. [ 39 ] The Crown has cautioned the Court to not place reliance upon the evidence of these various individuals, due to a number of factors. Firstly, most are limited in their ability to recount what may or may not have taken place many years ago.

This relates in particular to the evidence that the accused did not have a TV and VCR in his bedroom in the [...] Trailer Park, or the frequency of his attendance at his mother ’ s home. The Crown also cautions that the Court should view the defence evidence as unreliable, as it was a product of the family “ circling the wagons ” to protect the accused from conviction.

[ 40 ] I am mindful of these concerns and the frailty of the human memory. It is not necessary however in order to lead to an acquittal, that the Court accept all or even some of the evidence called on behalf of the accused. It is merely sufficient that the evidence raise a reasonable doubt as to the occurrence of the offences before the Court. With that in mind, I make the following observations. [ 41 ] The evidence of K.M. was that commencing in the fall of 1988, the accused worked in his construction company. During the time frame in the indictment, this would have included spring, summer and fall hours.

The accused worked full-time, and was a reliable employee. I found Mr. M. to be a credible witness. [ 42 ] The complainant testified that he was molested the most in his grandmother ’ s garage, and that such occurred multiple times a week. At trial, he testified the garage incidents occurred mostly in the summer time, with the majority of incidents occurring during the day. He testified that incidents occurred two to three times per week in the garage.

The complainant on cross-examination agreed that at the preliminary inquiry he described the frequency of garage incidents as four to five times per week. [ 43 ] The accused would have been working full time during the time frame the complainant alleged he was molested in the garage several times a week, during the day time. The accused was married with a young family and testified he did not attend at the garage on a frequent basis, certainly not as frequently as suggested by the complainant.

I have reasonable doubt whether the accused was even present or had the ability to be present during the time frames described by the complainant in terms of the events which allegedly took place in the garage. [ 44 ] Several witnesses testified that during the relevant time-frame, they were regularly involved in assisting the accused with decorating the outside of his mother ’ s home. This included Ms. D. , Mr. D. and the accused ’ s son. All testified they could not recall the complainant assisting with the outside Christmas decorations. The accused and Ms.

D. described how the decorations would be passed from person to person, either through a basement window or up through the basement stairwell. While a group was placing the decorations outside, other family members attended to decorating the inside of the house. [ 45 ] The complainant described approximately ten instances where he was sexually abused while in the basement with the accused. It was, he testified, in conjunction with retrieving the Christmas decorations.

Although the complainant could have certainly on occasion been involved in some fashion with the outside decorating, the evidence marshalled on behalf of the accused certainly raises a reasonable doubt as to whether he and the accused were alone as frequently as he suggested, or for a duration long enough for the alleged acts to have taken place. [ 46 ] With respect to the first alleged incident which took place in the accused ’ s bedroom, after considering the totality of the evidence, I am not convinced beyond a reasonable doubt that the event ever occurred. As noted earlier, the accused denied the incident.

He also provided evidence as did others that he did not have a television in his home other than a floor model in the livingroom. Further, the accused testified, as did at least one other witness, that there was not a ceiling fan in the bedroom, rather a square light fixture. This was contrary to the complainant ’ s description, as was the location of windows on the walls in the bedroom. [ 47 ] The above is not an exhaustive review of the aspects of the evidence, which gave rise to reasonable doubt as to the accused ’ s guilt.

There are more but for the sake of brevity those are the items I will mention in support of my conclusion. [ 48 ] Having considered the totality of the evidence, the analysis required by W.(D.) , and the able submissions of Counsel, J. M. M. is hereby acquitted of the three charges before the Court. [ 49 ] Any recognizances, undertakings or other terms of release in relation to the three charges before the Court are hereby vacated. J.