) ) HER MAJESTY THE QUEEN – against – D.M. Defendant ) ) ) ) ) ) ) ) ) ) ) Ms. C. Goodier, for the Crown Mr. P. Alexander, for the Defendant ) ), 2010 ONSC 7170

CITATION : R. v. D.M., 2010 ONSC 7170 NEWMARKET COURT FILE NO.: 08-10748 DATE: 20101223 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – against – D.M. Defendant ) ) ) ) ) ) ) ) ) ) ) Ms. C. Goodier, for the Crown Mr. P. Alexander, for the Defendant ) ) HEARD: June 14, 15, 17, 18, 21, 23, 24, 25, 28 and 30, 2010 at Newmarket and Oshawa, Ontario sOSNA j. r e a s o n s f o r j u d g m e n t Overview [ 1 ] D.M. stands charged with three counts of sexual assault pursuant to

section 271 of the Criminal Code , three counts of sexual touching a person under the age of 16 pursuant to

section 151 of the Criminal Code , and three counts of inviting a young person under the age of sixteen years to touch him, pursuant to

section 152 of the Criminal Code . [ 2 ] The nine counts relate to allegations made by D.M.’ stepdaughter, D.P., and the accused’s granddaughter, (L.H.), and grandson, (A.M.). [ 3 ] The three counts involving D.P. are alleged to have occurred between July 1994 and September 2004.

The remaining six counts involving his grandchildren are alleged to have taken place between February 2005 and August 2008. [ 4 ] At trial, the Crown called as witnesses the three complainants, L.R., the stepmother of A.M. and L.H., C.H., their father, the accused’s wife J.M., and, E.R., an acquaintance of the D.M.’ family. [ 5 ] D.M. called no evidence and did not testify. [ 6 ] The nine counts allege repeated acts of sexual abuse by the accused over a number of years.

As a general overview, those acts include, amongst others, sexual fondling and touching of the three complainants, the accused having the complainants sexually fondle him, and allegations of oral sex between the complainants and the accused. These incidents are alleged to have occurred both in the accused’s home and on occasion in the cab of his truck, the accused being employed as a truck driver. Position of the Crown [ 7 ] The Crown argues that it has proven the guilt of the accused on all nine counts beyond a reasonable doubt.

Acknowledging that the central issue in this trial is credibility, the Crown submits that the evidence of all three complainants is trustworthy and reliable and should leave the Court with no reasonable doubt as to the guilt of the accused. Position of the Defence

[ 8 ] The defence submits that D.P. is not a credible witness. The defence submits that her evidence is fraught with inconsistencies and contradictions. Further the defence submits that D.P., on her own admission, had a strong motive to lie because she hated D.M. for reasons unrelated to her allegations of sexual abuse. As a result she wanted D.M. out of her life and away from her mother. [ 9 ] The defence submits that the evidence of D.P. should be rejected.

If not rejected, the defence argues that the evidence of D.P. should leave the Court with a reasonable doubt as to the guilt of the accused. [ 10 ] Regarding the allegations of L.H. and A.M., the defence argues that their evidence is similarly unreliable since both witnesses contradict each other on essential allegations. The defence further submits that the children’s disclosure of sexual abuse was tainted by suggestive and aggressive questioning by their stepmother, L.R., and their Nana, J.R..

The defence submits that questioning by L.R. and her mother provided L.H. and A.M. details of D.M.’ alleged sexual abuse which they later disclosed in their police interviews. [ 11 ] The defence argues there is no credible evidence to find that D.M. sexually abused his grandchildren. At a minimum, the defence submits the evidence of the child complainants should leave the Court with a reasonable doubt. The Evidence of D.P. [ 12 ] The allegations of sexual abuse provided by D.P. are graphic, sordid, shocking and disturbing. [ 13 ] D.P. is presently 19 years of age.

She testified that she has known the accused for approximately 15 years when her mother began dating him. Shortly thereafter her mother and D.M. married, and D.M. became her stepfather. [ 14 ] She testified that some time prior to grade 4 she had memories of the accused sexually assaulting her. Thereafter, until D.M. was charged with the present offences, she testified that D.M. seized every opportunity available to sexually abuse her. [ 15 ] The sexual abuse by D.M. was pervasive, demeaning and continued into the complainant’s teenage years.

The repeated acts of sexual abuse included D.M. deliberately bumping into the complainant and groping her as she moved throughout the house, barging into the bathroom while the complainant was showering, attempting to fondle her, watching pornography while masturbating and sexually fondling the complainant, forcing the complainant to perform oral sex on him, at other times performing cunnilingus on her, attempting to have intercourse with her, inviting the complainant as a young child to join him and her mother in their bedroom to have joint sex, using a vibrator on the complainant, and having the complainant insert a plug into his rectum for his sexual gratification. [ 16 ] The complainant testified that the sexual abuse occurred in the family home and at times on road trips she took with the accused who was a long distance truck driver. [ 17 ] She described the sexual abuse to be so common that it became her reality both as a child and as a teenager. [ 18 ] The complainant acknowledged that although she was very close to her mother, J.M., she never reported any of the incidents to her.

The complainant testified that she kept silent because she feared that if she reported the incidents, her mother would not believe her and she would lose her mother to the accused. [ 19 ] She testified that her fear of losing her mother was partially premised on the movie “Georgia Rules”. She testified that she watched this movie many times and that she empathized with the central character in the film, a young female who was sexually abused by her stepfather.

The mother of the victim in the movie did not believe her daughter when she reported the sexual abuse to her. [ 20 ] She testified that when she entered her teenage years, 14 to 15 years of age, she made it clear to D.M. that she would not let him sexually or physically touch her again. She testified despite this warning the accused continued to sexually grope and fondle her particularly when her mother was not at home and at work. To fight off his advances, the complainant testified that she would run around the house, open the windows and doors and threatened to scream for help.

Often her efforts were unsuccessful and the accused would pin her to a chair and fondle her as she physically fought his efforts. [ 21 ] Eventually D. P. did disclose allegations of sexual abuse. However, the context of her disclosure requires scrutiny in light of her admission that for reasons unrelated to her allegations of sexual abuse, she hated D.M.. She viewed D.M. to be a household tyrant. She believed he mistreated and controlled both her and her mother. [ 22 ] In cross-examination D.P. described the accused to be a “pig”, a “stupid man” who manipulated and controlled the family home.

She testified that all of her friends loathed the accused because of his crude and course behaviour. [ 23 ] The complainant described the environment in her family home to be a war zone. She testified that she constantly argued with the accused. She testified that her mother and D.M. routinely squabbled, argued and disagreed with each other. [ 24 ] She admitted her relationship with the accused was one of hostility and defiance which she openly fostered.

Evidence of this toxic relationship was confirmed by the testimony of J.M. and family friend, E.R.. [ 25 ] She testified that although the accused mistreated her mother, her mother remained in love with him, too blind to see what a “jerk” he actually was. The complainant acknowledged that it bothered her that her mother remained in the relationship choosing the accused over her. [ 26 ] In cross-examination the complainant agreed that she wanted to get the accused out of her life and fantasized about the day her and her mother would be together without D.M.. [ 27 ] Eventually D.

P. moved out of the home and stayed with a family friend, E.R.. Shortly thereafter, J.M. separated from the accused and moved into another residence with the complainant.

[28] Even though separated, J.M. admitted that she secretly met with the accused and had sexual relations with him. When D.P.learned this information, she became intoxicated, went into a blind rage, and attended at D.M.’ home threatening to kill him. Herboyfriend managed to pull her away from the property. Later that evening D.P. disclosed to her boyfriend that D.M. had sexually abusedher. Two days later she provided similar disclosure to E.R.. [29] In cross-examination D.P. called the accused a “monster” and testified that she never wanted to leave her mother alone withD.M., ever.

She acknowledged that she feared that her mother may reunite with the accused. However, she testified that her fear ofreunification and her personal hatred of the accused had no bearing on the truthfulness of her sexual assault allegations. Findings of the Court [30] The graphic chronology of sexual abuse as provided by D.P. is extreme and as already noted, most disturbing. However,despite her steadfast testimony that she was repeatedly sexually victimized over many years, the reliability of her evidence issignificantly undermined in the following areas:

a) D.P. testified that when she was sexually abused she resisted the accused, that resistance being more physical when the accusedforcibly performed cunnilingus on her or when he put his penis in her mouth. She testified that the forced sexual acts occurred manytimes over many years. However, despite her evidence of repeated physical resistance there was no evidence introduced that D.P. evercomplained of or suffered any injuries.

b) The only eye witness evidence of any physical or sexual abuse was provided by E.R.. She testified that when the complainant wasapproximately seven years old, she witnessed the accused squeeze both of the complainant’s nipples calling it a joke (a purple nurple). E.R. did not find this to be humorous and inquired whether D.M. was a pedophile.

c) The Crown submits that this incident not only constitutes evidence of a sexual assault, but is also corroborative of thecomplainant’s testimony that in this incident the accused was as heedless as he was in all of the other sexual assaults. I decline to acceptthe Crown’s submission on this point. The complainant did not provide any evidence of this incident. E.R. testified there her husbandand the complainant’s mother, J. M. were present at the time. J. M. was called as a Crown witness. No questions were put to herregarding this incident. Additionally, E.R.’s husband was not called as a witness.

d) As noted in R. v. E (P.C.) 1998 ABCA 180 , 1998 126 C.C.C. (3d) 457 (Alta. C.A.) at para.12 It is always open to a trier of fact in a criminal case to have a reasonable doubt based on the absence of other evidence. It is perfectlyproper for the trier of fact to note that had the Crown case been true, other people readily available could have been subpoenaed totestify to it. The Crown decision and/or failure to elicit this evidence from the complainant and other witnesses, leaves me with a reasonable doubtthat the event as described by E.R. occurred.

e) As previously noted, the complainant testified that a pivotal event in her life occurred when she summoned the courage to warnD.M. never to touch her again. Despite her warning, the accused continued to sexually abuse her. D.P. testified it was not uncommonfor the accused to grab her, force her on a chair or couch, and fondle her breasts and/or buttocks. She fought to resist his efforts and toldhim to “f-off”. [31] This evidence is to be contrasted with D.P.’s statement to the police in October 2008.

She advised that after she warned theaccused not to touch her again, “That guy [D.M.] has not laid a hand on me since. I haven’t hugged him, kissed him since Grade 8.” Theofficer asked “Has he tried since then?” D.P. responded “To give me a kiss or a hug? Yeah, I don’t – he’ll put his arm around me. I justgo like this because I just-- I just --ugh.

The feelings I get when I see him, you know like.” The officer then asked “Has he-- other thanhugging has he tried to do anything else since that last time in Grade 7 or.” D.P. responded “No.” The officer then continued “Has he –other than hugging, has he tried to do anything else since the last time in Grade 7?” D.P. said “No.” “I think he’s--he’s a little moresmarter than that because he knows I don’t like it.”[1] [32] In cross-examination when confronted with her statement that D.M. had not tried to do anything else after being warned not totouch her, D.P. stated “Yeah, I know I said “no” but it’s not true.”[2] [33] It should further be noted that in her October 28 statement, D.P. stated that she was in grade 7 when she warned the accusednot to touch her again.

This statement is in marked contradiction to her trial evidence where she testified that this benchmark dateoccurred when she was about to enter grade 9 when she was 14 years of age after returning from a summer vacation with extendedfamily in Edmonton. [34] The complainant testified that when D.M. molested her he was always on edge because he was afraid that J.M. would returnhome and discover them. He was afraid that neighbours might stop by.

She testified that neighbours regularly dropped in unannouncedand when D.M. would hear someone coming, he would quickly tell her to run in the room and throw her clothes on. She testified inorder not to have the neighbours hear her screaming during the sexual assaults, D.M. would close the windows to the home. Shetestified that D.M. was terrified about being discovered. [35] This evidence is in marked contradiction to D.P.’s other allegations of sexual abuse. She testified that as a child D.M. alsosexually abused her while tucking her into bed at night.

She testified that her mother, J.M., often was at home and in the next room. [36] She testified that D.M. was always on edge about J.M. coming home and witnessing the sexual assaults. However duringcamping trips D.M. would try to sexually touch her even though her mother was sleeping next to them in the same tent.

[ 37 ] The complainant further testified that although D.M. feared detection by his wife, he would come into the complainant’s bedroom and invite her to join him and J.M. to have sex together. [ 38 ] D.P. testified that she watched the movie “Georgia Rules” on many occasions. As previously noted she was moved by this movie. She testified that she identified with the lead character in the movie who like her was sexually abused by her stepfather and the victim’s mother disbelieved any sexual abuse had occurred. She testified that when she was a teenager she watched this movie with her mother.

After watching it, J.M. asked her “has D.M. ever laid a hand on you” and D.P. said “no”. J.M. responded “you’d tell if anything like that ever happened, right”? D.P. said that she would. [3] [ 39 ] This is in marked contrast to D.P.’s trial evidence that she did not advise her mother of being sexually abused because she feared her mother would not believe her. The statement of J.M. “has D.M. ever laid a hand on you...you’d tell me if anything like that happened, right”? is an open invitation to report any sexual misconduct by D.M..

Furthermore, this statement is inconsistent with the complainant’s belief that her mother would reject or question any report of sexual abuse by D.M.. [ 40 ] D.P. testified she smoked marijuana. In her statement to the police she advised that D.M. accused her of doing drugs and suggested that this was an attempt by him to discredit her and get her mother, J.M., on his side. D.P. told the officer that she would never do drugs. This statement was contrary to her trial evidence. [ 41 ] When challenged with this contradiction, D.P. testified that she told the officer that she would never do hard drugs.

When further confronted with her actual words to the officer “Hell no, I’m not dumb. Like there’s no way in hell I’d ever do drugs”, D.P. testified that she did not consider marijuana to be a drug. [4] [ 42 ] The complainant testified that D.M. made her penetrate his buttocks with a “butt plug”. In her evidence, she claimed that D.M. “moaned and groaned, you know, like it felt good.” She testified that D.M. seemed to be enjoying himself.

This contradicts her police statement in which she advised that D.M. was moaning but then she thought it started to hurt him and he didn’t want her to do it anymore at the time. [5] [ 43 ] In cross-examination, when challenged with contradictions between her trial evidence and her police statement, D.P. responded that any errors or contradictions occurred because she was an emotional mess when she provided her police statement.

Other than this self-serving statement, no evidence was called to confirm D.P.’s alleged fragile emotional state when interviewed by the police. [ 44 ] Lastly, I find the timing of D.P.’s disclosure of sexual abuse too closely coincides to the secret sexual reunification she had learned had taken place between her mother and D.M.. The complainant acknowledged when she learned of her mother’s sexual contact with D.M., she feared that her mother would resume her relationship with him. D.P. was unequivocal that she wanted D.M. out of her life.

For a brief period, this hope was fulfilled when her mother separated from D.M.. That reality was short lived after the complainant learned that her mother had secretly resumed a sexual relationship with him. It was at this juncture that D.P. disclosed and accused D.M. of historically sexually assaulting her. [ 45 ] I am mindful of the seriousness and gravity of D.P.’s sexual abuse allegations. However, on all of the evidence her allegations leave the Court with a reasonable doubt in two areas:

i) Her chronology that she was subjected to a long standing and ongoing pattern of sexual abuse by the accused is contradictory and inconsistent in critical areas of her testimony. ii) Her evidence of sexual abuse cannot be divorced from her trial admission that she hated the accused for many reasons unrelated to her sexual assault allegations. Her allegations of sexual abuse, serious as they are, are therefore coloured and suspect. [ 46 ] Accordingly, counts numbers 1, 2 and 3 in this indictment are dismissed. The Evidence Relating to the Sexual Abuse of L.H. and A.M. [ 47 ] The evidence of L.H. and A.M. was introduced pursuant to

section 715.1 of the Criminal Code . At trial, both witnesses adopted their video statement which they provided to the police on October 28, 2008. A.M. provided an additional video statement on November 10, 2009, which he also adopted. [ 48 ] Pursuant to

section 486.2 both complainants testified by video outside the courtroom in the absence of the accused. [ 49 ] Their evidence was supplemented by the viva voce evidence of C.H., their father and L.R., their stepmother. [ 50 ] L.H. was 7 years old turning 8 when she made her allegations of sexual impropriety against D.M.. She was 9 years old when she testified at trial. [ 51 ] A.M. was 10 years old when he disclosed that he was sexually abused by D.M..

He was 11 when he testified at trial. [ 52 ] Both children provided their disclosure, initially to their parents, and later to the police when they were interviewed. The Evidence of L.H. [ 53 ] L.H.’s disclosure occurred during a conversation she had with her stepmother, L.R., and her (Nana) J.R. in October 2008. That conversation took place in the home of J.R.. [ 54 ] L.R. and her mother, J.R., decided to speak with both L.H. and her brother A.M. after learning that D.M. had been charged with the sexual assault of D.P..

[ 55 ] D.M. had attended the R. home and took his two grandchildren for a walk. He told them that he and their grandmother, J.M., were separating. He also advised the children he was charged with sexually abusing their Aunt D. - D.P.. This conversation took place shortly before Halloween. D.M. gave both children $50 in the presence of their father. According to D.M. the $50 was to buy the children Halloween costumes. [ 56 ] Due to the nature of the meeting L.R. became concerned. She decided with her mother, J.R., to speak separately to L.H. and A.M.

She wanted to discuss with them what D.M. had said and whether D.M. had ever inappropriately touched them. The conversations with the children took place a few days after D.M. had visited the residence. [ 57 ] L.H. was first to be spoken to. L.R. and her mother J.R. asked L.H. what D.M. had said during the walk. [ 58 ] L.H. reported that D.M. said he was separating from their grandmother. L.R. asked L.H. whether Grandpa had ever touched her inappropriately.

L.H. said no. [ 59 ] In cross-examination, L.H. testified that after saying no she was told that Grandpa had done bad things to Aunt D. and advised it was very important for Aunt D.’s sake to tell L.R. and Nana what he had done to her. She was advised that Grandpa was in a lot of trouble and that he had done something bad.

L.H. testified that L.R. and Nana kept telling her how important it was to tell. [ 60 ] L.H. further testified that L.R. and Nana asked her whether D.M. had ever touched her privates, whether he had ever made her touch his privates, whether he ever made her get naked with him, whether he tried to put his mouth on her privates, whether he ever made her sit on him, whether she ever saw anything like that happen to her brother, and whether D.M. had ever shown her magazines or websites with naked people. [6] [ 61 ] L.H. testified that she was asked two or three times whether D.M. had ever sexually touched her.

She eventually said yes but provided no details. The Evidence of A.M. [ 62 ] The circumstances surrounding the initial disclosure by A.M. that he had been sexually abused by D.M. are similar to those of his sister L.H. [ 63 ] Shortly after speaking to L.H., L.R. and her mother, J.R., took A.M. for a walk intending to speak to him about the conversation that D.M. had with him during their walk. [ 64 ] A.M. was asked what Grandpa (D.M.) had wanted to speak to him about and he advised that D.M. told him that he and Grandma were breaking up.

L.R. testified that A.M. was then asked if Grandpa had ever touched him inappropriately. L.R. testified that A.M. said no and became very detached. She testified that his demeanour changed and he became very uncomfortable trying to walk away from her and her mother. [ 65 ] A.M. testified he was asked whether D.M. had ever touched him in the wrong spot; he answered he never had. He testified that L.R. and Nana did not drop the subject.

He testified, “[t]hey kept asking me the same question over and over.” [7] He testified, “they were just hounding me.” [8] A.M. testified that L.R. and Nana advised him that Grandpa had done things to him that was against the law. He testified that he said, “no, nothing happened”. He testified he kept saying “no” over and over again. He was crying and was upset. [ 66 ] With reference to any details of sexual abuse, A.M. testified he was asked by L.R. and Nana if Grandpa had ever touched his privates.

He was asked if Grandpa had ever tried to put his mouth on A.M.’s privates and if he had ever shown A.M. bad movies depicting sex. A.M. testified he said “No”. [ 67 ] A.M. was advised how important it was to tell them. He testified they kept asking him and kept pressing and that everyone was upset. He was further advised that D.M. had also abused his Aunt D.. [ 68 ] It was decided that A.M. would be more comfortable talking to his father C.H.. C.H. joined the conversation and asked A.M. whether D.M. had ever inappropriately touched him. A.M. indicated that he had been touched.

At that point A.M. refused to discuss the matter any further. [ 69 ] Both L.H., A.M. provided no further details of the alleged sexual abuse to anyone until their videotape police statements taken October 28, 2008. [ 70 ] A.M. provided an additional video statement on November 10, 2010. As previously noted, all three statements of L.H. and A.M. were introduced as evidence pursuant to

section 715.1 of the Criminal Code . [ 71 ] In the October 28 video statement A.M. advised that he was touched in the “wrong spot” on his “private parts” by the accused. He stated the last time he was touched he believed he was at his Grandfather’s home and thought he was touched on top of his pants. He indicated on this last occasion he was alone with the accused and that his sister, L.H., Grandma and D.P. were out. [ 72 ] When asked how often he was touched, A.M. replied “Almost every time he was at Grandpa’s.” [ 73 ] He was asked whether there was a time he was touched when he was not wearing any clothes.

A.M. replied “Once, a few years ago”. He recalled being touched underneath his clothing. He stated that’s all he remembered. [ 74 ] However, in his November 10, 2009 video statement, A.M. advised that he then recalled being touched in the “wrong spot” when he was not wearing any clothes. He advised this happened quite a bit. [ 75 ] In both the October 28 and November 10 video statements, A.M. was asked whether D.M. had ever been naked during any of

the sexual assaults. In response, A.M. indicated that D.M. was never naked during any of the sexual assaults. [ 76 ] When asked in the October 28 video statement “Was there ever a time that you and him [D.M.] would have been on the bed together?” and A.M. replied, only when “play fighting”. [9] [ 77 ] In the October 28 statement A.M. reported that he and D.M. watched a movie on showcase that had bad language, had people doing rude things, and touching each other in the wrong spot.

He stated that D.M. never had him do the things he saw in the movie. [ 78 ] In his video statements, A.M. reported he was bribed by D.M. to keep the sexual contact a secret. In his November 10 video statement, A.M. advised that he and D.M. had watched a pornographic video together. After watching the video, he reported that D.M. had bought him a Big Mac.

At that time D.M. stated, “This is for you not telling what the video I showed you.” [10] [ 79 ] A.M. reported that on another occasion D.M. asked him to touch him in the “wrong spot” with a promise to go to a store and buy him candy. [ 80 ] On another occasion D.M. bought A.M. a Play station with a collection of Need for Speed and stated, “Keep everything we have done together a secret.” [11] [ 81 ] In his November 10 video statement A.M. reported that during a summer holiday at D.M.’ home, D.M. told him “…if I didn’t tell grandma he would buy my anything at Toys R Us.

And then he did some really bad things and…then we went to Toys R Us and bought some stuff. At the – I think it was Newmarket Toys R Us.” [12] Assessment of the Evidence [ 82 ] The Crown acknowledges in some areas the evidence of L.H. and A.M. is problematic but submits their evidence is nevertheless credible and trustworthy.

The Crown argues that both children testified with sincerity, both children had no motive to mislead, and both did not misconstrue that they were sexually abused by D.M.. [ 83 ] The Crown argues that when assessing the credibility of a child witness the Court should employ a common sense approach. The Supreme Court of Canada in R. v.

B.(G.) addresses this issue thusly: Dealing first with Wakeling J.A.’s comments regarding the credibility of child witnesses it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on [page 55] them as it does on adults.

However, this is not to say that the courts should not carefully assess the credibility of child witnesses…rather he was expressing concern that a flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.

In recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standard of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children. [13] [ 84 ] The Crown submits that the statements provided by L.H. and A.M. which were introduced into evidence pursuant to

section 751.1 of the Criminal Code are of utmost importance. The Crown argues that the video statements provide sufficient and accurate details of the sexual abuse on which the Court can conclude the memories of the children are truthful. [ 85 ] As set out in R. v. F. (C.) C., the primary purpose

section 715.1 is to aid: …in the preservation of the evidence and discovery of the truth. … Any kind of assault on a child may be traumatic.

Assaults of a sexual nature are still more likely to have a serious deleterious effect. … Recalling the events will be extremely difficult for every child and the more sensitive the young person, the greater will be the difficulty experienced… thus a record of events made in a more informal and less forbidding surroundings than a courtroom will serve to reduce the likelihood of inflicting further injury upon the child witness… [14] [ 86 ] Both L.H. and A.M. provided their initial video statements less than two weeks after disclosure to their parents.

A.M. provided a second video statement approximately 13 months later testifying that in the interim he had further opportunity to recall additional details. [ 87 ] The defence submits that the evidence of sexual abuse provided by L.H. and A.M. in their video statements is tainted. The defence submits that before both complainants disclosed any abuse, they were asked leading and suggestive questions by their stepmother, L.R. and their Nana, J.R..

Those questions contained details of the sexual abuse L.H. and A.M. later provided in their video statements. [ 88 ] As with evidence of every witness, including a child witness, the Court can believe all, some, or none of the evidence provided.

The evidence of the witness is not to be assessed in isolation, but in context of all other trial evidence. [ 89 ] At trial, L.R. denied suggesting or providing any details to L.H. and A.M. as to how they had been sexually abused. [ 90 ] L.R. testified that when she spoke to L.H. and inquired whether she had ever been inappropriately touched by D.M., L.H. eventually responded, yes, but provided no details. The only additional question she put to L.H. was whether her brother A.M. was also

involved. L.H. said yes but again provided no further information. [ 91 ] L.R. denied asking any other questions including whether L.H. sat on the accused when he was naked, whether the accused tried to put his penis in L.H.’s mouth, and whether the accused exposed L.H. to any pornographic magazines or movies. [ 92 ] L.R. testified that she had no recollection that she specifically asked L.H. whether D.M. had touched her in her private area and whether D.M. had L.H. touch him in his private area.

However she agreed that in her statement to the police, she reported that she did specifically ask those two questions. [ 93 ] L.R. testified that it did not take a long time for L.H. to agree that she had been inappropriately touched by D.M.. She further denied that she “pressed” L.H. to provide any information. This evidence is inconsistent with the statement that she provided to the police.

In that statement L.R. advised that she “pressed” the issue of sexual contact with L.H. and it took a long time for L.H. to agree that she was inappropriately touched. [ 94 ] In cross-examination L.R. testified that she used poor wording in describing her interview with L.H. to the police. However, she did acknowledge that the questioning of L.H. lasted 20 to 30 minutes. [ 95 ] Further, until her preliminary hearing was put to her admitting the same, L.R. denied that she had advised both L.H. and A.M. that D.M. had done bad things to Aunt D..

When confronted with her preliminary hearing evidence on this point, L.R. testified she only made reference to allegations of sexual abuse to Aunt D., to assure both children they were not alone. However, she categorically denied that she told L.H. that it was important to go to the police for Aunt D.’s sake. [ 96 ] In cross-examination L.H. agreed that L.R. had told her that D.M. had done bad things to Aunt D. and that it was important that she go to the police for Aunt D.’s sake. [ 97 ] On this specific issue A.M. provided evidence which was consistent with the testimony of his sister, L.H.

In his October 28 video statement, A.M. stated that he believed that D.M. deserved to go to jail “Cause all of the stuff that he’s done that are wrong and stuff….” [15] [ 98 ] The officer then asked: [16] Q. And when you say things that he’s done that are wrong are you just talking about you? A. Mmmm, yeah. Q. Okay. A.

Oh, and – and if he’s done wrong to aunt D.P.. [ 99 ] In the same statement A.M. indicated that he was “On aunt D.P.’s side, that’s for sure”. [17] [ 100 ] Contrary to L.R.’s evidence that she only asked L.H. whether D.M. had touched her privates, L.H. testified she was also asked whether D.M. ever made her get naked with him, whether he tried to put his mouth on her privates, whether he ever made her sit on him, whether he had ever shown magazines or videos with naked people or people humping. [ 101 ] L.R. testified that when L.H. and A.M. were questioned, her mother J.R. was present but did not add or contribute to the conversations.

This evidence is inconsistent with the testimony of L.H. and A.M. who testified that both L.R. and Nana asked questions. J.R. was not called as a witness at trial to confirm the evidence of her daughter L.R. or refute the evidence of L.H. and A.M. [ 102 ] A.M. and L.H. testified that when they were questioned by L.R. and Nana, they felt pressured. A.M. testified that, “They kept asking me the same questions over and over”. [18] He testified, “They just kept hounding me”. [19] [ 103 ] L.H. testified in similar terms.

In re-examination by the Crown why she [L.H.] eventually said yes to being inappropriately touched, the following exchange took place: [20] Q. And we know from yesterday from Mr. Alexander asking you that L.R. and nana asked you a bunch of times if anything happened with grandpa, and you said -- you kept saying “no”, is that right? A. Yeah. Q. And then you finally said “yes” and you told them? A. Yeah. Q. And I wanted to know why did you finally tell them something? A. Because I was sick of them asking me. … Q. And was there any other reason why you told them? A. No.

[ 104 ] Lastly, L.H. agreed in cross-examination that when she provided details in her police video of how D.M. sexually abused her, she had no memory of the events. However, she did provide the following details in her video statement: [21]

a) That Grandpa put his tongue on her.

b) That she saw Grandpa humping A.M.

c) That Grandpa made her touch his privates.

d) That he came into her room and touched her and A.M. while they slept.

e) That he made A.M. watch a bad movie about sex.

f) That he showed A.M. pictures of naked ladies on the computer.

g) That he showed A.M. a bad magazine with a naked lady on the cover.

h) That he touched her private parts.

i) That he humped her.

j) That she and Grandpa had been naked together. Findings of the Court [ 105 ] With reference to L.H.’s agreement that she had no memory of D.M. sexually abusing her, and that L.R. provided her with specific details of that abuse, the Crown submits that L.H.’s concessions in cross-examination are unimportant. The Crown points out that throughout her entire cross-examination L.H. agreed with almost all suggestions put to her.

When asked in re-examination by the Crown why she agreed with many of the suggestions put to her, L.H. was not able to provide any explanation. [ 106 ] The Crown argues that A.M. suffers from a learning disability and has harder time learning through verbal cues.

This is confirmed by L.R. who testified that A.M. struggles at school, has difficulty with comprehension, and is provided specialized learning techniques to help him compensate. [ 107 ] On the specific issue of suggestibility and any contradictions in A.M.’s evidence, the Crown submits that A.M.’s learning disability is an aspect of his cognitive make up that the Court should take into account when assessing his evidence. [ 108 ] As previously noted, L.H. was 9 years old and A.M. was 10 years old when they testified at trial.

Despite their youth and A.M.’s learning disability, I find that both witnesses have the capacity to observe, the capacity to recall, and the capacity to understand questions and frame appropriate responses. [ 109 ] In their evidence L.H. and A.M. specifically recalled that they were independently questioned at separate times by L.R. and their Nana, J.R.. Both L.H. and A.M. testified that specific questions were put to them providing details of D.M.’ suspected sexual misconduct.

In large part, those questions contained details of the sexual abuse that both children later alleged in their video statements to the police. [ 110 ] L.R. questioned L.H. and A.M. as a concerned parent. Her inquiry and questions were well intended and well meaning. However, her questioning either advertently or naively provided L.H. and A.M. with details of D.M. suspected sexual abuse.

As a result the detailed disclosure of sexual abuse provided by L.H. and A.M. in their police video statements is significantly tainted. [ 111 ] As already noted, the three statements by L.H. and A.M. were introduced into evidence pursuant to

section 715.1 of the Criminal Code .

However, the introduction of those video statements still requires that the Court assess that evidence in the same manner as any other evidence: After the videotaped evidence has been admitted, any questions which arise concerning the circumstances in which the video was made, the veracity of the witnesses’ statements, or the overall reliability of the evidence will be matters for the trier of fact to consider in determining how much weight the videotaped statement should be given. [22] [ 112 ] Given the manner in which L.H. and A.M. were questioned, I find the disclosure of sexual abuse that L.H. and A.M. provided to L.R. and later to the police, to be unreliable and untrustworthy. [ 113 ] The trial evidence of L.H. and A.M. is also problematic in other areas. [ 114 ] In her video statement L.H. reported that “bad things” “about sex” also occurred between her brother A.M. and D.M.. [23] [ 115 ] She reported that D.M. had A.M. watch bad movies about sex and then made A.M. do that to him.

She described sex “It’s when you hump people”. [24] [ 116 ] She reported seeing A.M. and D.M. lying on a bed together with their clothes off. D.M. was lying on his back and A.M. was on “his tummy” very close to D.M. and they were touching. [25] [ 117 ] She reported the same day that “some of the bad stuff” also occurred between her and D.M.. She reported that A.M. was present. [26]

[ 118 ] She described humping as D.M. being on the bed and her sitting on his stomach. She indicated that both she and D.M. were naked. She indicated that D.M. touched her privates. [27] [ 119 ] She described another incident when D.M. “humped” her first and then A.M. [28] She described that she was clothed but that D.M. was lying on the bed naked. She advised that she sat on D.M.’ stomach.

All these incidents were alleged to have taken place in D.M.’ bedroom. [ 120 ] L.H. alleged further sexual abuse by D.M. in the bedroom that she and A.M. shared when visiting their grandparents. [ 121 ] L.H. reported that when she and A.M. were sleeping…he [referring to D.M.] did the same thing…like humped us again. She described sleeping on an air mattress with A.M. She described she was awoken when D.M. touched her above her clothing in her private parts. [29] [ 122 ] In the video statement when asked about A.M., “Did – did you ever see anything happen in your bedroom with your grandpa and [A.M.]?

And then she responded, “Yes, when [A.M.] was sleeping.” [30] [ 123 ] L.H. was further asked, “Yeah? So tell me about that time”, L.H. responded “Um he did the – the exact same thing that he did to me with [A.M.]” “Do you mean touching his private part?” answer “Yeah”. [31] [ 124 ] In cross-examination L.H. agreed that A.M. helped her remember some of the things she said D.M. did to her. She testified that A.M. told her what D.M. did to her because A.M. was there the whole time and saw everything that D.M. did to her.

She further agreed that A.M. discussed the abuse and helped her remember it. [32] [ 125 ] In re-examination by the Crown L.H. denied that she had ever talked to A.M. about what D.M. did to either of them: Q. Have you and A.M. ever talked about what Grandpa did either to you or to A.M.? A. No. Later in the same re-examination L.H. again changed her evidence and testified that A.M. had spoken to her about the time they went to Grandpa’s and that A.M. “And then he just gave me ideas that I didn’t remember.” [33] L.H. testified that A.M. talked to her about what Grandpa did to the both of them.

She did not remember which parts of the abuse he discussed with her. [34] [ 126 ] The detailed evidence of L.H. describing:

a) multiple incidents in which she and her brother A.M. were sexually abused in the presence of each other; and

b) that A.M. had spoken to her and helped her remember details of the abuse is contradicted in its entirety by the evidence of A.M. [ 127 ] In the October 28 video statement, A.M. was asked on three separate occasions whether anyone else, specifically his sister L.H. was present when he was touched by D.M..

A.M. advised that at no time was anyone present, including his sister. [ 128 ] When asked whether D.M. had done anything to his sister, A.M. replied “I don’t – I don’t know if he has done that to her or not…” [35] [ 129 ] A.M. testified that he never discussed the sexual abuse allegations with L.H. contrary to his sister’s evidence who testified that A.M. helped her remember things. [ 130 ] In cross-examination A.M. provided the following evidence on this point: [36] Q. Okay.

You spoke to [L.H.] before the two of you gave your police statements and you talked about what you say your grandpa did to you, didn’t you? A. No. Q. You’re sure about that? A. Yeah. Q. You told her about the things that grandpa had done to her, didn’t you? A. No. … Q. You never went to her and said, “Hey do you remember the time we were at Grandpa’s and he was touching us?” A. No. … The witness: I barely even talked to her so and I never -- I barely talked to her. If I’m talking to her I’m asking if she wants to play video games with me.

… Q. So you never helped her to remember anything that happened to her? A. No. [ 131 ] Further contradictions are present in the chronology of sexual abuse alleged by L.H. and A.M.

As previously noted, L.H. testified that she and her brother were sexually assaulted both in D.M.’ bedroom and in their own bedroom that they shared when they slept at D.M.’ residence. [ 132 ] When A.M. was asked in his October 28 video statement, “Ever been a time that you and him [D.M.] would be on a bed together?” [37] A.M. replied, “Only when play fighting.” A.M. then described a specific incident of play fighting which included D.M., his sister L.H., his Grandmother and Aunt N. who was a referee.

However, neither at trial nor in his video statement s did A.M. make any allegation that he was sexually abused on D.M.’ bed. [ 133 ] Contrary to the evidence of L.H., A.M. did not allege that he was sexually abused when he slept with his sister at D.M.’ home. In his October 28 statement when asked where he slept when he was at Grandpa’s place, he replied, “Usually on the couch”.

In that statement A.M. reported an incident when he was sleeping on the couch and was woken when D.M. was touching him underneath his clothing in the “wrong spot”. [ 134 ] Lastly, A.M. contradicted his sister’s assertion that D.M. made him do sexual acts that they saw on pornographic videos which D.M. played for him.

A.M. stated, “This never happened.” [38] [ 135 ] Setting aside L.H.’s evidence, A.M.’s evidence alone raises concerns. [ 136 ] In his October 28 police statement, A.M. indicated that D.M. had bought him gifts and said “Keep everything that we’ve done together a secret.” …“And then finally he stopped buying things …. and he said to keep a secret, and I should – I couldn’t hold it for much longer and I - I just told.” [39] [ 137 ] This evidence is contradicted by A.M.’s testimony at the preliminary inquiry when the following exchange took place: [40] Q. So your Grandpa used to take you to Toys R Us? A.

Once or twice. Q. Once or twice? Okay, and sometimes he took you to buy candy? A. Yup. Q. Okay, and you think that sometimes when he did that that was to keep a secret? A. Yes. Q. Okay, but he didn’t say that, did he? A. No, because he never said that any of those things were to keep a secret. [ 138 ] At trial A.M. was further challenged with the following additional evidence he provided at the Preliminary Hearing: [41] Q. So what made you think that it was to keep a secret? A. Uhm, I think now it is.

Before I thought it was just because he was being nice but the reason I think it was now because now I know it’s against the law now. Q. You know what’s against the law? A. To sexually because people. [ 139 ] In the same cross-examination A.M. was confronted with his evidence in-chief that D.M. had bribed him with a Big Mac. Defence counsel put to A.M. a portion of his Preliminary Hearing evidence regarding the issue of the Big Mac: [42] Q. I said: “When he bought you the Big Mac he didn’t tell you that was to keep a secret, did he?

And you said: “No.” And you’re saying now that it’s because he told you before he bought you the Big Mac that it was to keep a secret? A. I thought I said “yes”. I’m sure of it I said “yes”. Q. You’re sure you said “yes” that day? A. Yeah.

Q. Okay, because we have a transcript that the court reporter wrote, and she wrote down everything that was said that day, and I asked you: “And when he bought you the Big Mac he didn’t tell you that that was to keep a secret did he?” And you said: “No.” And now you’re saying that you really said “yes”? A. Yeah, because I’m sure of it. … Q. Okay. So you’re telling us the court reporter just wrote that down wrong? A.

Yeah, maybe she didn’t hear me because people have done that before. [ 140 ] No evidence was called, nor was it submitted by the Crown that the transcription of the evidence regarding the bribe and the Big Mac at the Preliminary Hearing was in error as alleged by A.M.

Conclusion Reached Re: Evidence of L.H. and A.M. [ 141 ] On all of the evidence, I am left with a reasonable doubt of the guilt of the accused on counts 4 through 9 in the indictment. [ 142 ] I find the well intentioned, but, ill informed suggestive questioning of L.H. and A.M. significantly tainted and undermined the independence and reliability of the disclosure in their video statements that they were sexually abused by D.M.. [ 143 ] Their viva voce evidence at trial is equally troubling.

I recognize that “the standard for assessing credibility which would be applied to an adult’s evidence is not always appropriate in assessing a young child’s credibility. [43] However, the testimony of L.H. and A.M. is too inconsistent, and too contradictory to meet the standard required for proof of guilt. Their numerous inconsistencies and contradictions are not peripheral or minor. These inconsistencies and contradictions go to the heart of their allegations. Furthermore, those inconsistencies and contradictions cannot be reconciled or explained.

Accordingly, their evidence leaves the Court with a reasonable doubt to the guilt of the accused. [ 144 ] Therefore, counts 4 through 9 in the indictment are dismissed. Sosna J. Released: December 23, 2010