)) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 72

CITATION : R. v. C.C., 2013 ONSC 72 COURT FILE NO.: 5-704/11 DATE: 20130107 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – C.C. Defendant )) )) )) )) ) ) Paul Zambonini , for the Crown Nyron Dwyer , for the Defendant HEARD: November 20, 22, 23, 26, 27, 28, and 29, 2012 Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of THE COMPLAINANT and any information that could disclose such identity shall not be published in any document or broadcast in any way. SPIES J. Introduction [ 1 ] Mr.

C. is charged with sexually assaulting S.A. sometime between March 1, 2009 and June 1, 2009 contrary to section 271(1) (

a) of the Criminal Code . He re-elected trial without a jury and pleaded not guilty. Although S. was 20 to 21 years old in this timeframe, she is developmentally delayed. According to the Crown’s expert Dr. Temple, she functions cognitively at a mental age of a three to five year old child. Mr. C. admits that he had consensual intercourse with S.A. once and it is his position that the Crown has not proven that she did not have the necessary capacity to consent.

In the alternative it is his position that he had an honest but mistaken belief in S.’s capacity to consent to sexual intercourse. [ 2 ] I heard evidence from E.A.; S.’s older sister, her mother M.D.A. and S. S. adopted as true the videotaped statement that she gave to police on June 4, 2009 which was introduced into evidence. I will refer to each of these witnesses by their first names to avoid confusion. The Crown also called Karen Wadon, S.’s teacher for the 2008 to 2009 school year, Laura Mahoney who conducted a psychological assessment of S. for school purposes in March/April 2008 and Dr.

Valerie Temple who was retained by the Crown to do an up-to-date psychological assessment of S. Both Ms. Mahoney and Dr. Temple were qualified to give expert evidence at the trial. In addition, the Crown tendered the statement Mr. C. gave to police on June 3, 2009 as part of the Crown’s case, which Mr. Dwyer conceded was given voluntarily. Mr. C. testified on his own behalf. He was known as “C.” to S., E. and M.D. The Issues [ 3 ] There are two main issues that I must consider. First, did S. have the capacity to consent to sexual intercourse with Mr.

C. and second, if she did not, did he have an honest but mistaken belief that she had capacity to consent to sexual intercourse and had in fact consented. A central part of Mr. C.’s defence is his position that he spoke to S. in French Creole, that she spoke this language much better than English and when he spoke to S. in French Creole she seemed, to him, like a 30 year old woman.

The Evidence and Preliminary Findings of Fact The Admissions [ 4 ] Mr. C. made certain formal admissions. There is no issue that S. was pregnant in the spring of 2009. The pregnancy was aborted on June 12, 2009 at which point the fetus was 14 weeks gestational age by size. That would put the date that S. became pregnant at about March 6, 2009. DNA extracted from the fetal tissue was compared to the DNA of Mr. C. and it was determined that Mr. C. could not be excluded as the biological father of the fetal tissue. The likelihood of that DNA result is 16 million times greater if Mr.

C. is the biological father of the fetal tissue than if a random man from the population is the biological father. Although there was no formal admission that Mr. C. was, in fact, the father of the fetus, this was not disputed. Mr. C. admitted when he testified that he had unprotected sexual intercourse with S. on one occasion. Background [ 5 ] S. was born in […] 1988 in St. Lucia. Her mother immigrated to Canada in 1990, when she was only one year old. S. lived with her with her maternal grandmother until she came to Canada.

Her sister E., who is three years older, lived with S. for much of that time and at other times lived with their older sister nearby so she saw S. on a regular basis. The only contact they had with their mother when she was in Canada was through letters and telephone. M.D. was never able to go back to St. Lucia to visit. [ 6 ] S. has a developmental disability of an unknown cause. The severity of that disability and its impact on her capacity to consent to sexual intercourse is an issue I will come to. There is no dispute that S. only received minimal schooling in St. Lucia.

According to E., S. constantly had to repeat school in St. Lucia and never made it to high school. According to M.D., her mother told her that S. was being bullied at school and that she took her out of school as a result. On her evidence S. was only in school for one year in St. Lucia. [ 7 ] In February 2007, when S. was almost 19 years old, she came to Canada with E. to live with their mother. They all lived together until April 2009 when E. moved out.

At the material time, S. was living with her mother and for part of the time with her sister E., in a two bedroom, self contained basement apartment (save for the laundry) at 269 Thistledown Blvd. in Etobicoke. [ 8 ] Once in Toronto, S. attended West Humber Collegiate for a special education program for children with disabilities. She then started going to the Haney Centre where she was learning basic life skills. [ 9 ] Mr. C. is 45 years old. He was born and raised in St. Lucia. He has nine children. He had his first child at the age of nineteen.

He raised five of his children and is still helping them financially now. The other four are living abroad. His youngest is 18 years old. Mr. C. came to Canada in June 2008. Germaine, his girlfriend of 21 years, came a month later. When he first arrived in Canada he stayed with people who he conversed with in French Creole. In September 2008, Mr. C. and Germaine moved into the other apartment in the basement at 269 Thistledown Blvd. Their bedroom and bathroom were on one side of the hallway and their kitchen was on the other side. Mr.

C. said the hallway was essentially his living room area as he had no living room. It was this hallway that the A.’s used to enter their apartment which was at the end of the hall. Mr. C. came to Canada as a visitor and although he wasn’t allowed to work, he ended up working for a landscaper. I do not consider any immigration issues to be relevant to the issues in this case. [ 10 ] During the material time, S.’s mother worked fulltime in a meat factory in Mississauga from Monday to Friday and sometimes Saturday. She travelled by bus and left at 2 p.m. and generally got home between 2 and 2:30 a.m.

On Sunday she went to church. Accordingly, most of the time, S.’s mother was not home. Furthermore, a lot of the time when S.’s mother was home she was reading the bible or studying and praying to get ready for teaching Sunday school. [ 11 ] S. went to school every weekday until mid afternoon. She was taken to and from school by bus from her home. Although her mother would get her ready for school in the morning, she left for work before S. got home from school. When she got home from work S. would be sleeping. M.D. testified that there was not a lot of time to talk to S. since she was so busy.

Clearly on the evidence, even though S. was now living with her mother, her mother did not spend very much time with her. E. was also busy with going to school or work during the day and preaching as she is a Jehovah Witness. [ 12 ] After school S. spent time with Joanne Norrie, a counsellor from Surrey Place, an agency funded by the government, who worked with and took care of S. She apparently took her out to various programs. According to M.D., most of the time S. was with Ms.

Norrie because she was working. Ms. Norrie did not testify although I understand that she worked with S. for a long time. E. testified that if she and M.D. were out, the lady living upstairs would look after S. E. testified that she took care of her sister at night although she also went out at night leaving S. behind. After E. moved out, as far as she knew, S. would stay with the family upstairs after school. She acknowledged, however, that S. would be in the apartment by herself a few times if she didn’t want to play. S.’s mother insisted that S. was never home alone, not even once. According to Mr.

C., S. was home alone 80% of the time. He testified that M.D. asked him to keep S. company because she was alone in the house. Given all of the evidence, I find that S. was left alone in the apartment from time to time after school or in the evenings and this must have increased as of April 2009 when E. moved out. [ 13 ] According to E. and M.D., S. had no friends except for the two girls upstairs and Joanne Norrie apart from anyone she knew at school. Mr.

C. testified that S. was taken out from time to time by a 50 year old man named Winston but neither E. nor M.D. were asked about this. [ 14 ] It does not appear that Mr. C. developed much of a relationship with E. while she was living in the apartment. There is a dispute between the evidence of M.D. and Mr. C. as to the nature of the relationship between the two of them. M.D. testified that she saw Mr. C. as a tenant, not her friend. She denied that he helped with the bills, took her grocery shopping or ever drove her to or from work.

She admitted that they did share food with him and that sometimes on a Sunday they would have meals with Mr. C. after church. She did this because she is a Christian. She said that she didn’t want to be Mr. C.’s friend because she didn’t trust people from St. Lucia. She said that she did not talk much with either Mr. C. or his girlfriend. E., however, said that her mother was very friendly to Mr. C. and that they became good friends, that they would talk together in English and that her mother spent time with Mr. C.’s girlfriend. [ 15 ] Mr.

C. on the other hand said he became “extra friends” with the A.’s and that they lived in the basement “like one family”. He testified that Germaine would be in the house all day with M.D. and she went with them everywhere. Once they really got to know each other Mr. C. said they had meals together most of the time. After Germaine left Mr. C. said that he wasn’t cooking every day and M.D. would tell him not to cook because she had already cooked. She would bring home meat from the place where she was working all the time. He also cooked for S. and her mother. Mr.

C. also testified that he dropped M.D. off at work about 10-15 times in the six months he was living there and probably picked her up the same number of times. According to Mr. C., he gave the A.’s money and took them shopping and M.D. would do his laundry sometimes. [ 16 ] I believe that M.D. was downplaying her relationship with Mr. C., particularly given the evidence of E. which I accept, and that Mr. C. was likely exaggerating it somewhat. I do believe, however, that the evidence of Mr. C. is closer to the truth. M.D. was a single mother and was very busy.

I see no reason why she would not have asked for or at least accepted help from Mr. C. in getting to and from work from time to time. Since she was working in a meat plant the fact that she shared food with him is not only admitted by her but makes sense. Certainly I do not believe that S. would have observed any conduct on the part of her mother or sister that would have suggested to her that she should be afraid of Mr. C. or stay away from him. [ 17 ] On January 18, 2009, Germaine went back to St. Lucia to take care of her children. Mr. C. testified that S.’s behaviour began to change towards him at this time.

I will come back to this. [ 18 ] E. and her mother described how in the spring of 2009 S. became sick with nausea; she was constantly throwing up and was not eating and sleeping a lot. They didn’t know what was wrong with S. Ms. Norrie took S. to a doctor who said she was fine. E. was not convinced and took her to a walk-in clinic. To E.’s surprise they found out that S. was three months pregnant. Once M.D. found out S. was pregnant, she called the police right away and Mr. C. was arrested. [ 19 ] E. took S. to Mount Sinai Hospital for the abortion of the fetus in June 2009.

She only told S. that she brought her to the hospital because she was sick. On the way home, after the procedure, S. was bleeding in the cab and told E. that she had woken up and her period had come. As I will come to, having heard S. testify there is no doubt in my mind that she has no understanding or memory of the fact that she was pregnant or that she had an abortion. [ 20 ] After S.’s pregnancy, M.D. left her job and began to stay home with S. S.’s Relationship with Mr. C. [ 21 ] There was very little evidence from M.D. and E. as to any relationship between S. and Mr. C.

E. testified that she never saw S. conversing with Mr. C. privately. M.D. testified that she knew S. was talking to Mr. C. but she didn’t know how close they were or

what language they spoke or even if S. liked or disliked Mr. C. M.D. said that she only saw Mr. C. speak to S. if they were eating together on a Saturday or Sunday afternoon. They wouldn’t say much to each other. She never saw them talking privately. [ 22 ] Mr. C. testified that he developed a friendship with S.; she was his best friend in the entire house. However, while Germaine was living with Mr. C. he testified that S. did not talk a lot to Germaine or to him. I presume, therefore, that the friendship developed more after Germaine returned to St. Lucia. [ 23 ] Mr.

C. testified that after Germaine went back to St. Lucia he saw some changes in S.; as he put it, it was after that that S. “start proving ” her age. Mr. C. used the word “prove” quite a lot in connection with S. proving to him that she was actually 20 years old. Her mother would tell him that she was that age but he didn’t believe S. He wanted her to prove otherwise. This evidence of S. having to “prove” her age becomes important to my analysis. [ 24 ] Mr. C. testified that S. told him that she loved music and he bought her a Discman.

They used to listen to music together and they would watch television together on the station where they just play music. She told him the kind of music that she liked . [ 25 ] Mr. C. testified that S. used to wait for him to come home from work because she knew that was the only time she would have a little happiness in her life. According to Mr. C. he was the only friend S. had to talk to. If he came into the apartment too fast she would knock on his door and say “C. I know you’re inside there. Open there”. He would ask her to leave him alone but she kept asking to come in.

A lot of times he came home very tired and he would just have to make time to keep her company. Sometimes he would park his truck 200-300 feet away from the house so he could nap in the truck in order to avoid S. seeing his truck outside and knowing that he was home. [ 26 ] Mr. C. testified that he and S. talked about a lot of different things and kept on “talking and talking and talking”. He would talk to her about what she did at school. She told him that she was doing a little painting and once she said she was helping the teachers wash dishes. [ 27 ] S.’s mother testified that S. used to tell her and Ms.

Norrie that C. was asking her to sleep with him, he told her he was going to take her to Niagara Falls, that he wanted to take pictures of her naked on his bed and he wanted her to come into his room. This was before they knew S. was pregnant. She initially told S. that C. was a good man and wouldn’t do that. Ms. Norrie, however, told her to listen to S. and so she did talk to Mr. C. about this. She told Mr. C. the specific things S. had said he had said. C. told her he was just joking.

She told him that he shouldn’t say these things to S. because she didn’t “understand nothing and she’s autistic” and that he needed to leave her alone. [ 28 ] Mr. C. testified about his discussions with S. about Niagara Falls. He said that one day, not long after he had moved in, E. was on the computer looking at a picture of Niagara Falls. S. asked Mr. C. where it was and he told her although he hadn’t been there yet. She asked if he would bring her there and he said he would one of these days. According to Mr.

C., every day after that when he came home she would ask when he was going to bring her to Niagara Falls. He told her it was a place where people go swimming. He didn’t know any better as every waterfall in St. Lucia is a place where you can swim. He told S. that for her to go to Niagara Falls she would have to make her mother buy her a swimming suit but that at the time it was very icy so there was no way they could go. S. didn’t want to hear that. He also told her that she would need a camera to take pictures. When Ms. Norrie came to talk to Mr. C. about this he told her that he was just joking with S. Ms.

Norrie told him people don’t swim in Niagara Falls. Mr. C. denied the suggestion that M.D. told him not to bother S. or talk to her about Niagara Falls. [ 29 ] Mr. C. gave evidence about why he thought S.’s behaviour changed after Germaine returned to St. Lucia. He said that when Germaine was still living with him, S. saw that they went into the bathroom to bathe together. He did not explain how S. would have seen this although the door to his bathroom was in the hallway. Mr. C. also testified that there was a guy that used to come and see S.’s mother and that E. had a boyfriend.

He speculated S. had that in her mind and that as soon as his girlfriend left that is why things changed. If she went to the shower she would come and tell him “C. I go into the shower”. When he asked her why she was telling him this she said that he used to go into the shower with his girlfriend. He would say “well, you’re not my girlfriend, you’re a little child , and you’re not my girlfriend”. S. then started to “misbehave”. He said by this he meant she started behaving in a funny way and questioning him as to whether he had girlfriends. [ 30 ] Mr.

C. described a time on February 14, 2009, when he had two female friends drop by and they had some drinks in his room during the day. The next day, in French Creole, S. said to him: “Don’t fucking call me” and that she didn’t talk to him for two weeks.

Mr. C. thought she was upset because he had brought women into his room. He testified that he then said to himself S. “you is a little child but you see, S., you’re not a little child. Probably you have a little childish in you, but you’re not a little child.” This statement confirmed his belief that S. was a “little child” but as I interpreted this evidence, because she was jealous Mr. C. believed she was acting in a way that was not consistent with a little child. [ 31 ] Mr. C. admitted that he did joke with S. and say things like “When are we gonna get married?” He didn’t think she would take it for real.

However, one time S. showed him a picture of a ring and told him that it was the ring he had to buy for them to get married. He took that for a little joke. When asked during his police interview if that didn’t make him wonder about her maturity, Mr. C. said at that time he started thinking about what her maturity was and started realizing that she’s probably older than he thought. That was the time he started questioning her to see her ID. According to Mr. C., S.’s mother started to say every time he entered the apartment “S., here’s C. You like C.? You’re gonna marry C.?” M.D. denied ever suggesting that Mr.

C. marry S. [ 32 ] Mr. C. testified that although he spent a lot of time with S., he didn’t know how old she was unless she proved to him how old she was. He testified that S. wanted to develop a relationship and he wanted a friendship and that she had to “ prove to me that she’s matured to have a friendship”. [ 33 ] Once when S. came from school Mr. C. asked her why she told him that she was a “big woman” and was still going to school . She told him that she was going to help the people in the school. He asked her what she had to prove to him that she was a “big woman” and she showed him her school ID.

He testified as a result “I consider she’s an adult. The school ID would not lie. That’s how I realized the age was true but, I still think to myself, I say, no way, S., that’s not going to happen.” I presume the “that” was a reference to a sexual relationship. [ 34 ] Mr. C. also testified that he told S. that the only proof she could give to him to make him believe that she was a “big woman like you’re saying” was her passport. He said her school ID was a fake ID. He testified that he said this because he knew she didn’t have her passport in the apartment. According to Mr.

C., E. had told him that she was taking S.’s passport when she left because she didn’t trust her mother. Mr. C. testified that he then heard S. on the phone telling E. to bring her passport for her. The next day S. had her passport and asked if he could now believe that she was a big woman. He said yes he did. E. recalled speaking to S. on the phone and S. asking for her passport; she did not know why. According to E., it was her mother who called for S. as she could not make a call and she heard her mother in the background. M.D. was not asked about this. The Sexual Intercourse [ 35 ] Mr.

C. admitted to the police and in his evidence at trial that he had sexual intercourse with S. on one occasion probably in late March 2009. He admitted that he didn’t use a condom. His description of this event to police and at trial was essentially the same although there were some variations as I will come to. Essentially it is his evidence that S. was always coming and telling him “C., I’m going for a shower” and that on this occasion she tried to get him to take a shower with her which he refused. At this point he was inside his room with the door open.

She then told him to “watch” and when he did she opened the bath towel. She wasn’t wearing anything underneath. He thought she must be crazy to come and open the bath towel right in his room and show him and he was surprised. She was then in the bathroom for 10-15 minutes and came out and told him she was finished. He said why don’t you put your clothes on and she said she would. He was sitting in the hallway at this point on a chair. [ 36 ] Mr. C. testified that S. came back five minutes later in the same bath towel and posed and showed him “everything that God gave her”.

He was sitting in the hallway at this time and they were alone in the apartment. S. came behind his back and held him around the neck with her breast touching his back and said “C., you don’t like me?” and he asked her to leave him alone. He told her he did not want to involve himself, that it was a friendship, not a relationship. According to Mr. C., S. started to touch his breasts and she was laughing. After S. started touching him he started touching her. She told him that she loved him and that they were going to get married.

She kept “troubling” him and troubling him and finally she came and sat on him and put her legs on either side of him and they had intercourse as he was sitting in the chair. He just unzipped his pants. According to Mr. C., he ejaculated on the ground in the hallway and afterwards S. got a mop and passed it on the ground to see if any little bit of sperm had fallen there as she didn’t want her mother to find out. [ 37 ] Mr.

C. was very clear in his evidence that the sexual intercourse was S.’s idea and at one point in his evidence he said that he granted “S. a favour,” by engaging in intercourse with her and he thought she would take it as a favour and forget about it. He was also firm that the sexual intercourse only occurred once. When asked by the officer if he would be surprised if the forensic testing showed that the baby was his he said no. I note this answer is not likely consistent with his version of one occasion of sexual intercourse when he says he ejaculated outside S.’s body.

When asked again he said well actually he would be surprised because he wasn’t expecting anything like that.

[ 38 ] Mr. C. said that he was in the hallway because he thought S. would come to his room and he was trying to avoid that. When asked why he wouldn’t just lock his room he said it was definitely a good question but he didn’t. He then said he was remembering more and that he had a pot on the stove in the kitchen. He could see the pot on the stove from where he was sitting. He also added that when S. came back she started pouting and they started talking and talking. He asked S. if she had sex before and she told him she had a boyfriend in St. Lucia and she had to leave him and get another man. Mr.

C. stated that all of a sudden “it happened” and S. started showing him her breast and passed it around underneath his chin. When he had sex with S. he thought she knew what she was doing. Mr. C. testified that he never used the term “making babies” in the way that S. used it in her statement to police. He always used to tell her “babies cannot make babies”. He did this because he used to call her a little baby in Creole any time she would come and he wanted to rest. [ 39 ] Mr. C. said that he was sorry for having sex with S. and that he had tried his utmost best to see that he never had sex with her.

He didn’t want it to happen, it happened once and it would not have happened again. If he had wanted to have sex with S. every night he could have done that. When asked if he forced S. to have sex he said he could not force her to have sex because when she came to him with the bath towel all he had to do was “ let her enjoy herself” like he did. She came over and put one leg on one side and one leg on the other side and unzipped his pants and put his penis in her vagina and that’s how it started. She said “C. I know what is sex and I know how to have sex”. At another point Mr.

C. stated that the way S. was feeling about him if he had wanted to have sex with S. two or three times a night she would have let it happen. Given Mr. C. told the officers that S. had been coming up to him on earlier occasions showing him what was under her bathrobe, he was asked why the sex hadn’t happened earlier. He responded “well, because she proved to me that she’s a woman … she bring me ID. She bring her passport to prove to me that she’s a woman.” [ 40 ] In his statement to police Mr. C. stated that when they had sex S. didn’t say she wanted to have sex and neither did he.

She just came around his back and held him and then she “grow up my feelings a little bit” and he said “OK, S., I know that’s what you want. Let’s have sex”. When asked what he meant by “grow up your feelings” he responded that any time someone plays with your boobies and stuff like that you’re going to have a little bit of feelings and that’s the way the sex takes place. [ 41 ] Mr. C. stated that when he had sexual intercourse with S. he didn’t think he was doing anything wrong except cheating on his girlfriend.

He said to himself, “S. is 21 years old, she wants to have sex and she’s pushing to have sex and she’s going crazy” and so he thought “all right S., you want to have sex, go ahead let’s have sex”. [ 42 ] When the officer asked Mr. C. if he asked S. to lie down in his bed so he could take pictures of her naked he did not deny it but asked why he should do that when he was locking his room every minute when he saw her. He had to “run from S., just because I don’t want to make S. feel too bad”. He added that he wouldn’t have had to ask her to go on a bed.

She was going to the washroom naked and calling him and telling him “C. are you coming or not coming”. He didn’t need to bring her on a bed to see her naked. At another point however Mr. C. stated that S. never lay down on his bed and he never went on her bed. [ 43 ] According to Mr. C. after the sexual intercourse “the trouble” started. When he came home from work the next afternoon S. was outside her apartment and told him that she had locked her key inside the room. She wanted to rest by him until her mother came.

He said “no your mother’s not coming until 3 in the night and that’s not going to happen.” He called S.’s mother and she did not give him a “good response”. She asked him to let S. stay with him but he wanted to rest and could not have her there. He called E. and E. told him how to open the door with a knife and he did that. Two days later S. had the same idea telling him she had locked herself out. However, in his evidence in chief Mr. C. said that after the sexual intercourse nothing changed about the relationship other than he got arrested.

He said everything was just as it was from the beginning to the middle and to the end [ 44 ] Mr. C. testified that he didn’t want things to go any further with S. because he had not wanted to have sex with her but it happened because of the way S. was behaving and saying nobody liked her. He said the way she was living there anyone would have already walked out of the house and that S. was in a “very, very, very bad state down there” which is why he took care of her. S. wanted to add sex to a good relationship that he had with her.

He didn’t want that because he could get any woman if he wanted to and he had a girlfriend who knew S. [ 45 ] Mr. C. also said that he was the one who delayed the sex and that he “delayed and delayed” it because he took S. as a friend and he was insisting to her that she was too young. He said that he was looking at her like she was 17 or 18 and he has kids that “is the same capacity” and that was the reason why he was pulling back. However, S. didn’t want that and had to prove to him that she was older than what he thought.

She showed him her ID to show him that she was 21 years old. [ 46 ] Before this incident Mr. C. testified that S. would come and give him a little kiss on the cheek and then run into her apartment and laugh asking if he liked it. He said a lot of little things happened before this that he used to take as a joke. According to Mr. C., S.’s mother asked him many times to get a boyfriend for S. if he didn’t like her. M.D. was not asked about this.

[ 47 ] Turning to S.’s version of events, the most reliable evidence that she gave that related to the sexual intercourse with Mr. C. was in her statement to police on June 4, 2009. She did give some evidence at trial, during her cross-examination but it was mostly simply agreeing to leading questions from Mr. Dwyer. As I will come to she gave some evidence at trial suggesting that Mr. C. physically forced her to have sexual intercourse with him which I find is not reliable. As a result, the primary relevance to her further evidence at trial was to assist me in determining her capacity.

I will review her statement in some detail because it also illustrates her ability to carry on a conversation, albeit in English, which is an issue raised in this trial. [ 48 ] When S. gave her statement her counsellor Joanne Norrie was present.

After discussing her age S. said out of the blue that “C.’s trouble with me and he’s smoking cigarettes and he’s saying that I have – I am making all babies all the time.” When asked how she knew C. she said “Because you know why he’s smoking cigarettes and … he’s telling me ‘if I make him baby’ I tell him ‘I don’t make him baby’.” When asked what “making baby” means S. answered: “when you pregnant”. S. told the officers that she told C. “I no making babies”.

When asked if C. ever asked her to do something she said that he told her that “I want to have a kid baby that I don’t have to …” ‘I tell I’m not making babies’. When asked if she knew how to make babies she responded “I’m not making babies”. She told the officer that she always stayed by her own self in her room colouring in her book. When asked if she was ever home alone she said no she was with her sister and her mom.

When asked if she had ever been in C.’s room she said “I not go in his room anymore”. [ 49 ] When the officer tried to find out about S. going into C.’s room, she kept talking in the present, that they were not talking to him and that she didn’t go in his room. When asked if she talked to C. she said she didn’t. She said her mother and sister both worked in the night and so she would be home alone. She would read her colouring book, colour and go to sleep. When asked why she didn’t want to talk to C. anymore she said her mother told her not to talk to him. Her mom was crying because of C.

When asked why her mother was sad because of C. she responded that “they” told him not to come back in the house. When asked why they didn’t want C. in the house anymore she said it was because they were going to arrest him. When asked why she responded “he always telling me I – I making baby”. She was then concerned that she didn’t want to get herself in trouble. When pressed she would only refer to the fact he used cigarettes in his room. She then said that C. was in her room smoking cigarettes. When asked if anyone had ever lain down in her bed she said just her alone.

When asked what C. did in her room she said that he was sitting in the kitchen drinking tea. [ 50 ] When S. was asked if C. ever did anything to her she did not want to talk about it but eventually with some encouragement said that “he said to me like … sex with me, but I tell him ‘I don’t – I don’t have to, I don’t make baby.” When asked what it meant when C. asked for sex S. said she didn’t know but that he came in her room and “trouble me”.

When asked again about the sex she was talking about with C. she said “He told me … I make him babies – he always making me babies and you make me upset right now.” She then said that he told her “I just have to make babies” and she told him that she doesn’t have to make a baby and that she “I don’t make him baby – I don’t pregnant for nobody.” When asked what she meant by “he gives her trouble” S. said “he always telling me that I make him babies all the time.” Later she said that when she was making babies all the time and every time she made him babies he said to her “why should not make babies?” and she told him she wasn’t “making baby again.

I’m grown up C. I’m bigger than you.” When asked what she meant by “making babies” she said that when you are old and die you can have cancer in your belly. She said she told C. she was not making babies for him. When asked how she would make a baby she said she didn’t know. When asked what sex meant to her she answered “you know why he’s making me to have babies.” She didn’t know what sex means. When asked if she used to trust C. she said she didn’t like him anymore. Again she was unable to grasp the fact that the question was asking about her relationship with C. in the past.

When asked if she remembered when she first met him again she said she didn’t talk to him. The only reason she thought C. would get arrested was because he had been told not to come back in the house again. When asked again about what she meant when she said C. was “troubling me” she referred to the fact he smoked cigarettes in the hallway and in her room. [ 51 ] During her cross-examination at trial M.D. testified that after she found out S. was pregnant she apologized to her for not believing her about what she was saying about C.

She asked her to tell her the truth and tell her whether or not she had sex with C. According to M.D., S. said “Yes mommy, but he forced me to have sex with him. He put my hands on my mouth and pulled my hand behind my back and he told me if I said anything to anybody, I’m going to kill you.” She testified that S. told her this after the police left and she didn’t remember whether she told the police this. The only reason I heard this evidence was because of its impact on the credibility of M.D.

It was agreed that the first time the Crown heard that S. had apparently told her mother that C. had forced sex and the other evidence she gave concerning S.’s description of this was just before she testified when she was in the victim impact room. There was some evidence from S. at trial, consistent with this alleged statement from S. but as I will explain, I did not find this evidence reliable. The Lay Evidence Concerning S.’s Intellectual Ability Evidence of E. and M.D.A. [ 52 ] E. is the only witness who testified who has been close to S. her whole life.

She testified as to what she believes S. can and cannot do. For reasons that follow I found E.’s evidence reliable and credible. Much of E.’s evidence was corroborated by the evidence of S.’s mother, her teacher Ms. Wadon, and to some extent what I observed in the courtroom. It can be summarized as follows:

S. is not able to spell her name. S. can spell basic words like “boy” or “cat” but can’t write full sentences, or at least sentences that make sense. As E. put it, although her favourite thing is writing you don’t know what she is writing. S. does not know all the numbers. S. can say the alphabet but may skip letters. S. cannot read. S. loves colouring but doesn’t do it well. According to E. she is unable to distinguish colours. She certainly does not know her colours. S. knows what money is but can’t count it. S. does not know how to tell the time.

S.’s mother helps her in the shower as she does not wash herself properly on her own but she can brush her teeth and go to the bathroom on her own. S. is able to put clothes on herself but does not dress properly without help. She needs help with her hair. S. can make a sandwich or a cup of tea but is not able to fry an egg. However she can’t turn on the stove and it would not be considered safe to let her use the stove on her own. She can’t operate a microwave. S. can make up her bed. S. can’t pick up the phone and dial a number although she could answer the phone.

S. is not able to go to the corner store to buy something because she would get lost. S. likes to play with little children. S. played with two little girls who lived upstairs. According to M.D. one of the girls was seven and the other was five although Mr. C. testified that they were 12 and 14. [ 53 ] In cross-examination E. said that S. loves people and loves attention and if she is very comfortable with someone she is overly friendly and very affectionate and will touch that person with her hands.

She wants to talk to people especially when she gets close to them but E. denied that she could carry on a conversation. E. testified that you can only have a simple conversation with S.; nothing too elaborate. When she talks sometimes you don’t know what she is talking about. [ 54 ] E. admitted that when she gave a statement to police on June 3, 2009, she said that S. thinks she’s an adult and that she’s older and wants to be treated that way. E. agreed with this statement at trial but said she hadn’t clarified herself enough because S. could not do things adults like to do like go to parties.

E. testified that she believes that her sister has the mentality of someone who is four or five although she wants to be older. E. couldn’t think of anything else that S. could do that was beyond the level of a four or five year old child. [ 55 ] M.D. testified that she thought S. was functioning at the age of a 10-12 year old based on her experience until the psychiatrist said she was between four and five years old. She said that it was like “she’s [S.’s] dead” in the sense that she is there but she doesn’t understand anything that is going on around her in the world.

She did not think S. understands anything about sex because she doesn’t mention that to her. When E. found out her sister was pregnant, to her this was impossible. From her understanding S. did not know what sex was about and she knew that S. did not think and behave like a normal person. She queried what man would have sex with her. It didn’t make sense. [ 56 ] Both M.D. and E. testified that when they told S. she was pregnant she became very upset but she didn’t understand what it meant to be pregnant.

E. testified that when she asked S. if she had sex with anyone, she would jump up and stomp her feet and try to throw things at her in response. She did not seem to understand what it meant to be pregnant and she does not know the risks of getting pregnant. She didn’t understand that the baby was aborted. According to her mother, up to now, S. doesn’t know what happened or remember any of this happening. Evidence of Karen Wadon [ 57 ] Ms. Wadon is now retired from teaching after 35 years in the field.

She taught S. in the September 2008 – June 2009 school year in a class of eight or nine students, all between the age of 17 and 21, at the Haney Centre. She saw S. from 8:30 a.m. to 3:30 p.m. five days a week for the most part although a different teacher taught S. for math. Although there was an academic component, the focus at the Haney Centre was to teach S. life skills so she could become as independent as possible.

[ 58 ] Ms. Wadon did not see S. outside of school. She was however able to provide considerable evidence as to S.’s abilities in school which to a large extent corroborated the evidence of E. and M.D. [ 59 ] Ms. Wadon testified that: (

a) S. was able to print her first name inconsistently; she had some letter recognition. (

b) S. did not know her colours or her shapes. She wouldn’t know for example the colour green if shown two colours. (

c) S. was not able to read and so she was being taught international symbols and keywords. They were also working on her being able to read for example a price, or telling time. (

d) They were working with S. on learning how to cross the street. She could not safely cross the street on her own and wouldn’t be able to remember how to walk to even regular places. She would need full support when she was out. (

e) They were working on coin identification, being able to read a price and telling time. In Ms. Wadon’s opinion S. was not able to go to a store and make a purchase. Even if she could get to the store she might not be able to locate the item or negotiate a line-up. (

f) S. could go to the washroom on her own and dress herself provided simple instructions were provided. (

g) S. was not able to make meals; she couldn’t for example peel an orange. She could not safely turn on the stove and Ms. Wadon would not let her do so without supervision. (

h) Ms. Wadon couldn’t say if S. would be alright at home alone but she testified that she would not have left her at school on her own. (

i) S. would be able to express her likes and dislikes. [ 60 ] According to Ms. Wadon, in conversation there probably wouldn’t be much eye contact and S. would seem a bit distracted. She could relate events but they would be jumbled. The conversation would be pretty basic and she wouldn’t be able to get into too much detail. [ 61 ] In terms of interaction with other students, Ms. Wadon testified that S. got along with the others although there were some conflicts. Ms. Wadon described a “Circles Program” which was used to teach the students about relationships.

A graph of rainbow colours with the student in the centre was used to show how much one should talk and trust and touch other persons. This was done with S. once a week for over two months. Ms. Wadon testified that S. didn’t really grasp the concept of the program. [ 62 ] Ms. Wadon testified that sexual activity was a topic that never came up with S. It was not part of the curriculum. S. never talked to her about any romantic involvement. [ 63 ] Ms. Wadon testified that S. was at about the four year old level but in social interaction might be younger. She disagreed with the proposition put to her by Mr.

Dwyer that socially S. was much more sophisticated than a four year old socially, when eating lunch, interacting with the other students or talking to her. In cross-examination when Mr. Dwyer asked Ms. Wadon about S.’s social skills, she said that S.’s ability to engage in small talk, for example, knowing about the weather, would be quite limited and would be a “red light to someone that there is an issue here”. By “red light” she meant that she thinks someone would notice after interacting with S. for a bit that something was not right.

She was not aware of any context where the fact S. has an intellectual disability would not be evident to others. Evidence of C.C. [ 64 ] M.D. testified that Mr. C. didn’t know anything about S.’s limitations when she told him about S. and that she wanted him to stay away from S. because she “doesn’t understand nothing”. I presume this was at the time of the conversation she alleges she had with Mr. C. in connection with the talk of going to Niagara Falls. M.D. testified that she told Mr.

C. that S. couldn’t cook for herself, could not read and write, could not even put water on the stove to make some tea or shower by herself. Mr. C. was not asked about this aspect of the conversation. [ 65 ] Mr. C. admitted when he first met S. he would say she was around 13 or 14 but that was watching her without talking to her. He testified that once they started sitting down and talking he realized she was “a little bit more mature”. He then thought she was somewhere between 16 and 18. Once she proved it to him, which I presume is a reference to S. showing Mr. C. her school ID and

passport, he realized that “definitely well you’re matured for sure”. [ 66 ] Mr. C. did admit that he told S. at times that she was behaving “too much like a little child” but he said that was when she asked for something and he didn’t bring it. He would tell S. that she should stop behaving like she was a “little kid” and he said that’s why she told police that he was telling her about babies. He also admitted that he called S. a Creole word that means “little baby” or “little child”.

She wanted him to stop calling her a little child. [ 67 ] When interviewed by police and asked what he thought about whether S. functioned like a 21 year old Mr. C. said that in certain circumstances she seemed even older than 21 years old and that “she knows about a lot. You will meet S. today and you’ll see that she’s two years or three years but if she take you as a friend and she start talking to you you’re gonna [sic] see definitely she’s like 30 years old …You’re going to see that she’s mature.” According to Mr. C. when he talked to S. in French Creole she understood everything.

If he promised to do something for her she would remind him which to him meant she understood what he had told her. When she talked about back home she talked like an adult. Eighty percent of their interaction was in French Creole. He said at the time S. knew very little in English; just simple phrases. [ 68 ] When Mr. C. was asked by the officer what sort of things they talked about to make him believe S. was like a 30 year old he answered that she told him what kind of life she had in St. Lucia. She used to go out and do what she wanted. She would come back to the house when she wanted.

She said she had a boyfriend; an Indian fellow, in St. Lucia which her parents didn’t like. She then fell out with him and “fell into another one”. Mr. C. said that not even S.’s mother knew S. like he knew her because they had the time to sit down and talk and she would tell him things. When Mr. C. was asked what S. did when she acted like she was two or three he said she would go on like “C., you going to buy for me”. If he said he forgot, she would pretend that she was a baby and start playing like a little child because he didn’t bring her what he promised her. [ 69 ] Mr.

C. was asked by the officer about what he knew about “S.’s problems” he said the only thing he saw wrong with S. was that there was some kind of problem with her memory and that she was “forgettable”. He said she wouldn’t really remember everything all the time. He gave as an example if you tell her on a Monday to tell her mother she doesn’t have school on Friday she will remember to tell her mother but you need to remind her that she has no school on Friday. Apart from that he said that he saw S. do “everything like a woman”. Mr.

C. also said that he definitely believed that S.’s problem was lack of education. [ 70 ] Mr. C. said that no one told him that S. was mentally retarded or anything like that. The way they (I presume a reference to M.D. and E.) used to explain S.’s behaviour when she was acting like a little child was to say that she was a little childish. Mr. C. did admit that when he saw the way S.’s mother and E. treated her he did wonder why they were treating her like that. He said if S. was still back in St.

Lucia probably half of her friends at the age of nineteen would have babies because that’s the usual thing back home. [ 71 ] Mr. C. knew that S. went to the Haney School although he said he didn’t know anything about the school except that it was not a “read and write school” because she would tell him she would wash the dishes and things like that in school. When S. told him she was helping at school he told her that he didn’t believe that. [ 72 ] Mr. C. testified that S. never talked to him about the classes that she was taking.

This however was at odds with his other evidence that they talked about what she did at school. He testified that S. showed him different things that they gave her to do like her painting. When asked how old would you think the person was by looking at her painting, Mr. C. said that the person that can do the kind of painting that she was doing and showed to him would have to be over 20 years old. This assumes she drew it and then painted it. If it was just painting that she did it would be someone like 16-17 years. At another point however, Mr.

C. testified that S. showed him a few things that she had coloured at school and that this caused him “a little bit” of concern. However he added that if you’ve never been among people colouring he thought that you won’t be able to colour and that since S. had never gone to school she wouldn’t know. [ 73 ] Mr. C. knew S. could not read or write properly. He said that you will find this everywhere in St. Lucia so he did not find it strange. He had never seen her read books. He would sometimes sit with her and show her different words. She would show him what she did at school.

He referred to “little writings” that she wrote. [ 74 ] Mr. C. knew that a school bus took S. to school picking her up at home and that the bus brought her home. He also knew the kids upstairs walked down the road to catch the bus. When asked if he found this strange, he said S. was someone he never saw go do any business on her own in the mall or buy things at the convenience store. He wasn’t sure if it was because of the school she was going to that the bus stopped to pick her up at the house. He didn’t think she ever went to the mall by herself.

He said that he didn’t think her mother would let her go “this far by herself”. When this was questioned he then said that he did think she could go there on her own. He admitted that he never saw S. go out by herself.

[ 75 ] Mr. C. said he didn’t find it strange that S. didn’t go anywhere by herself. He said the area where they lived there was nothing close around. According to Mr. C., the reason S. could not go out to places by herself was because she was never brought anywhere. He explained that in order to go to the Albion Mall someone would have to bring you there one or two times and then you could probably go on your own. S. did not know where the Albion Mall was so she would not be able to go by herself. According to Mr.

C., S. told him that she bought groceries for her grandmother in St Lucia on a daily basis as she wasn’t going to school. [ 76 ] Mr. C. was aware that S. was playing with two children upstairs. He said she only played with them for a short time before there was a fight between the mother of these children and S.’s mother because there was an allegation S. had hit the kids too hard and as a result S. couldn’t play with them anymore. He said that he wouldn’t know if she could bathe herself properly or brush her teeth properly as he never saw that.

He never saw that she could not cook. [ 77 ] During the course of the police interview Mr. C. got off topic quite often. At one point he told the officers that he had “taken care” of S. since he had moved in six months earlier and he also said that S.’s mother would ask him to check on S. for her. When asked what he meant by “taking care of her” he said that she always had needs and would come and ask him what she needed. He then gave the example of when she needed batteries for a Discman that was not playing. Every time something was wrong he was the one fixing it.

When asked why, as a 21 year old girl, he thought she couldn’t handle this on her own he responded that maybe she didn’t get the care from her mother. He agreed, however, that he would think a 21 year old would normally be able to get these things without help from her mother. When asked again why S. would come to him he said she didn’t have the finances. He knew she did not work and he had no idea why not. He never saw her with any money. S. did not know money because she never had any. [ 78 ] When Mr.

C. was asked if it seemed strange S. didn’t have a lot of friends coming over, he said there was one man named Winston who was about 50 years old who used to take S. out. He didn’t know his connection to the family although it seemed like he was a friend of the family. S. told him that she didn’t want to go out with Winston because she didn’t like him because he was too old. S. told him that every time she went in Winston’s car he wanted to kiss her. Neither E. nor M.D. were asked about this. [ 79 ] At trial Mr.

C. talked about one occasion when he was out with friends on a Saturday and S.’s mother called him and reminded him that he had promised to take S. out. He hadn’t given her a time yet but S. was already dressed up and waiting so he had to leave his friends. As he was coming down the road towards the house he found S. walking down the road. This seemingly was of concern to him at the time. [ 80 ] When Mr. C. was asked by police if he thought S. was an able-minded 21 year old who was able to consent to sex he responded yes.

When asked if he thought S. could care for a baby he said yes because she could do everything. He told the officer he honestly thought she could go through nine months of pregnancy, give birth to a child and successfully raise a child. [ 81 ] Later in his statement Mr. C. referred to S. as a “little girl” and that “she was like 15 – 16 – 17” and that he never thought until he saw her ID that she was 21 years old. He was then asked if he hadn’t seen S.’s ID, given the way she acts and looks how old he would say she was, if for example he’d met her on the street. Mr.

C. responded “something like 18 years old” but he added that was before they had a good conversation. When they had a good conversation she sounded like a 30 year old woman. This is when she was telling him her life stories; because of the things she was telling him she used to do back home. Both the passport and school ID showed that she was 20 years old. When asked how it was that she showed him ID he said the reason that he asked for it was so she could prove her age to him because he didn’t believe that she was the age that she said.

He was then asked why he would need proof given he had conversations that led him to believe she was 30 years old. Mr. C. said those conversations were after. When pressed he thought S. showed him the ID and her passport in late February/early March. [ 82 ] When challenged as to how S. could come across as a 30 year old woman Mr. C. maintained his position and said that “she can make you believe that she’s a big woman, because you will ask her … ‘S. you’s a little child’ and she will not talk to you anymore. She’s gonna get vexed ‘I’m a big woman, C.’.

She’s gonna tell you that every day, every minute, every hour ‘I’m a big woman C.’.” [ 83 ] At trial, when Mr. Dwyer asked Mr. C. if he thought there was anything wrong with S. or if she had any kind of problem he said “yes, yes, definitely” and went on to say he believed the main reason for her behaviour was because of a lack of education and that she could not express herself. Everyone was speaking English and she didn’t understand them. Around people speaking English “you could see her behaviour is very low.

But, when she and I are there, you will see a lot difference because she tell me everything about her entire life.” He testified that the way she spoke to him made him feel like she was 30 years old. Mr. C. testified that she told him that when her grandmother thought she was in the outhouse she was actually by the river with boys picking mangoes. She told him she had “an Indian fellow” and she came home once to find him having sex with another girl so she left him and got friendly with a “black fellow”. That was her last boyfriend. I note Mr.

C. did not say that S. told him that she had had sexual intercourse with these boyfriends.

Mr. C. said that he found it difficult to believe everything he was hearing in the trial about S.’s lack of capacity because when S. feels comfortable around you she will tell you everything that you need to know. [ 84 ] There was evidence from S.’s mother and Mr. C. about a time when S. complained about her mother and the police were called. Mr. C. testified that S.’s mother spoke to him about this. It was his evidence that she told him that it was a man that S. wanted, like a boyfriend, and that was why she was behaving like that. S.’s mother told Mr.

C. that she had only given S. two little lashes on her hand and that S. reported this to the police. Actually the evidence is that S. told a teacher who called police. According to Mr. C. he asked S. in French Creole why she went to the police on her mother and she told him in French Creole “big people doesn’t raise their hands on big people. Big people raise their hand on little children. That’s why I went to look for police for her so she don’t raise on me anymore.” He said this is why he considered S. was a “big woman for true”.

He explained that he used to hear similar language about being a big woman, don’t put your hand on me when his parents fought. [ 85 ] Mr. C. testified that S.’s mother told him not to give S. food or do anything for her and for two weeks she didn’t do anything for S. According to Mr. C. he was the one taking care of her and made sure she went to school every day. He said that the only thing he had to do for S. was to check the line at the back of her head for her two cornrows to make sure they were straight. Mr.

C. also talked about a day during this two week period when S. told him that she had cooked some noodles and that she had left him some. He was there alone with her. Mr. C. also testified that he showed S. how to use the computer to find a particular website. She told him that she got it and was able to do it. This is also why Mr. C. said he was surprised to hear the experts testify that S. was functioning on such a low level. S.’s Life in St. Lucia [ 86 ] Although S. gave some evidence about her life in St. Lucia at the trial, as I will come to, I did not find her evidence reliable.

Most of the evidence therefore comes from E. [ 87 ] S. and E. lived with family in a rural area of St. Lucia. According to E., in St. Lucia S. could walk down the hill and go to the store at the bottom of the hill if her grandmother sent her to the store with the exact change. She could also visit E. on her own because she was living just down the street for some of the time with their older sister. [ 88 ] E. did not know of any boyfriend or special male friend that S. had while living in St. Lucia. She didn’t even know if S. understood the term boyfriend.

S. never gave her any indication that she understood what romance was. E. did fairly admit, however, that it was possible that S. had a boyfriend in St. Lucia and that she wouldn’t have known about it. M.D. testified that she was never told by her mother that S. had a boyfriend. The Evidence Concerning S.’s Ability to Speak English versus French Creole [ 89 ] The question of what language S. spoke in St. Lucia and at the material time became an important issue in Mr. C.’s defence.

As I have said, he testified that when he spoke to S. in French Creole they were able to have good conversations and she seemed much older; as old as a 30 year old woman. Mr. C. testified that S. couldn’t understand English at the time. If he started speaking English to her she would bend her head down or get up and walk away. They spoke together in French Creole because she knew that language. They would put a little bit of English in between. Mr. C. did distinguish Patois from French Creole which he said was one of the highest levels of Patois in St. Lucia.

However to avoid confusion, I will refer to this other language only as French Creole, which is the way Mr. C. usually referred to it. [ 90 ] According to E. in St. Lucia the older people spoke French Creole but the younger people spoke English. Their grandmother’s mother tongue was French Creole but she also spoke English. English was the language in school. E. testified that when S. was living in St. Lucia she spoke French Creole with her grandmother and she spoke English with E. According to E. she never fully spoke either language and would jumble up both languages when she spoke.

E. did admit that S. spoke better in French Creole when they were living in St. Lucia but she always spoke to her in English as did their older sister. She denied that S. spoke primarily French Creole in St. Lucia. [ 91 ] M.D. does not know much about S.’s time in St. Lucia or what language she spoke primarily. When she called she would speak to mostly to her mother and E. who told her about S. When M.D. did speak to S. on the phone she spoke English. When M.D. lived in St. Lucia, growing up she spoke Patois which she said is the same as French Creole, and English. She testified that most people in St.

Lucia speak English and Patois. Her mother spoke Patois and English but used to speak more English because she used to work with the government in St. Lucia where English is used.

[ 92 ] E. testified that it was only once she and S. came to Canada that S. was able to better her English. English is the only language that they have spoken since coming to Canada; E. hasn’t heard S. say a single word in French Creole since they came to Canada. The evidence is clear that when S. came to Canada her Mother spoke to her in English since at that time M.D. did not speak or understand French Creole. According to E., S. is now better in English and she understands English better than French Creole. [ 93 ] M.D. testified that she spoke English to Mr. C. Mr.

C. confirmed this although he said that he would always put a little piece of Patois in. He also spoke English to E. M.D. saw Mr. C. speaking with S. but didn’t know what language they were using. She denied ever being present when S. and Mr. C. were talking to each other. [ 94 ] Ms. Wadon spoke to S. in English and she made no note of any difficulty in speaking to S. in English. She was not aware of any other languages that S. used or that S. spoke French Creole. When asked if she would have changed her approach to teaching S. if she’d known she had ability in another language, Ms.

Wadon said that there was no indication there was a language issue in the information she received. Furthermore, the program at the Haney Centre was very hands on and a lot is done by demonstration. There is not much in the way of a language component and they use a lot of different strategies in teaching. [ 95 ] As I will come to, neither Ms. Mahoney nor Dr. Temple observed any language problem with S. when they spoke to her in English.

The Expert Evidence Concerning S.’s Intellectual Ability Evidence of Laura Mahoney [ 96 ] Laura Mahoney is a psychological associate and has significant experience in conducting psychological assessments in order to determine learning and behavioural exceptionalities and programming needs. She was qualified as an expert to give opinion evidence with respect to her assessment of S., the various tests that she administered and the results of those tests. [ 97 ] Ms. Mahoney prepared a psychological assessment report for S. in April 2008 which was also introduced into evidence with the consent of Mr. Dwyer.

It was done so she could provide proper programming for S. while at school and for transition into the community so she had proper support. S. had been placed in a developmental disability program because those around her could see she could not function in a regular program. She had been placed as a visitor right away and the assessment was being done to confirm her placement. She was getting older and would not be able to stay in school much longer. Ms. Mahoney’s period of contact with S. was between March and April 2008.

She saw her a number of times over different days both with and without her mother for a total of about three hours. This was less than most assessments of this nature since S. was unable to do all of the activities required in the tests. [ 98 ] Ms. Mahoney testified that S. consented to the assessment but she would not say that she would have been able to “consent” in the sense of being able to understand and appreciate what the service was and whether she should receive it. [ 99 ] The results of Ms.

Mahoney’s testing found S.’s intellectual skills to be very limited; in the Moderate range of Developmental Disability, well below the 1 st percentile. All areas of skills were in this range including language and communication, visual-spatial skills, judgement and reasoning, and mental processing speed. [ 100 ] Ms. Mahoney reviewed the various tests that she administered to S. including: (

a) Wechsler Adult Intelligence Scale – Third Edition (WAIS), which uses various tests to measure intellectual ability. S.’s overall IQ score was 46 which placed her below 0.1% of the population; below the lowest person. She was not always able to find out S.’s minimum level because she couldn’t go that low. Her verbal and non-verbal performances on this test were very similar. (

b) Developmental Test of Visual-Motor Integration, (VMI) which used very little language beyond the initial instructions. Ms. Mahoney believed that S. understood the exercise which involved copying and drawing a line figure such as a block but she scored below the lowest score for this test, below the .02 percentile. (

c) Wechsler Individual Achievement Test – Second Edition (WIAT) which measure academic skills namely reading, writing, math and listening skills. Her results were below the .01 percentile.

(

d) Peabody Picture Vocabulary Test, - Third Edition, which tests how well a person understands the English language. For example S. was shown four pictures and asked to point to the bus. She understood the test but her score was less than the .1 percentile. [ 101 ] Information from S.’s teacher was also considered. A form completed by S.’s mother was not used due to confusion in the answers given. Social skills were looked at in the context of S.’s adaptive behaviours based on information from S.’s teacher. Socially based on that information S. was quite delayed. According to Ms.

Mahoney, if a person is cognitively delayed the person is likely to be socially delayed. S.’s results fit in with the rest of the picture Ms. Mahoney was getting from S. [ 102 ] According to Ms. Mahoney, someone with a moderate intellectual disability who has proper schooling can achieve a Grade 2 level in terms of academic skills. In S.’s case she was at the kindergarten level or even lower, which Ms. Mahoney attributed to the fact she had not learned certain things, such as her alphabet because of her minimal schooling. Her scores were therefore what she would expect given S.’s situation. [ 103 ] Ms.

Mahoney did not give any age norms for S. in terms of her intellectual ability. She said that the WAIS test does not have tables supported by research to convert to age norms and so she could not say S. was at a four year old level. Furthermore, Ms. Mahoney is of the opinion that this is not an accurate way to view a person as in her view an adult who is age four cognitively has a very different style and way of behaving than a typical four year old. [ 104 ] Ms.

Mahoney testified that S. could learn to do things like self care; for example brushing her teeth or bathing, primarily on her own and she would be able to make a sandwich but she would not be able to cook a meal. She would not likely be able to go on the TTC by herself or even go to a store. Ms. Mahoney’s impression was that it might be safe for S. to be at home alone. [ 105 ] Ms. Mahoney did not talk much with S. apart from the initial intake interview. In class she saw that S. was generally a quiet observer.

She said that it was quite possible that in a social context S. would be able to express herself more fully. [ 106 ] All of the tests were administered in English. In Ms. Mahoney’s view S. was able to understand English but her language development was poor and her understanding of concepts was poor. She believed her first language to be English but picked up on what she called a minor dialect issue. Ms. Mahoney said there was a minor difference in the way S. spoke in terms of pronunciation or phrasing that did not prevent her greatly from expressing herself.

Her mother told her about S.’s French Creole influence and she knew it was a form of French. She knew that S. was from St. Lucia and that she had only attended school for about one year when she was five or six years old. Her mother told her that S. spoke English. Ms. Mahoney had no sense that English was S.’s second language. She relied on what she was told and from her own views in working with S. [ 107 ] Had Ms. Mahoney known that S.’s first language was French Creole or if S. was using some words in that language and others in English, she would not have changed her tests.

If there had been an issue with language, Ms. Mahoney would have done multilingual assessment to establish a baseline. However, when she was working with S. there was no substitution of words and it was clear to her that English was her primary language as S. presented as a student fluent in English. She did not present as an ESL student. [ 108 ] Ms. Mahoney testified that if language was the only issue, in her view S. would have been much stronger in the non-verbal tests. She would also have been better in adaptive skills. Ms.

Mahoney testified that in interpreting the assessment results she took into account S.’s newcomer status and limited schooling but in her view the results were not due to these factors. Ms. Mahoney did not make a provisional diagnosis in this case as in her view she was very certain of the results. This is not a case where the future might tell a different result. Evidence of Dr. Valerie Temple [ 109 ] Dr. Temple is a clinical psychologist and is currently the Professional Practice Lead for Psychology in the Adult Program at Surrey Place Centre where she has worked for the past 15 years.

She is very well qualified in conducting psychological assessments, diagnosis, and treatment of adults with developmental disabilities. She is also one of the psychologists for the video-conferencing team that provides assessment and other services to the remote northern Ontario communities and as such has experience in assessing individuals from very different cultural backgrounds whose first language is not English. Dr.

Temple was qualified as an expert in the ability to administer various psychological tests, interpret the results and give opinion evidence with respect to the cognitive abilities of adults who have a developmental disability particularly in the moderate range. [ 110 ] S. was referred to Dr. Temple by the Crown for an up-to-date psychological assessment in order to gain a better understanding of her current abilities. The assessment was done on March 4, 2011 and Dr. Temple’s report of that date was also introduced into

evidence with the consent of Mr. Dwyer. [ 111 ] Dr. Temple relied on the past assessment by Ms. Mahoney and records provided by the Toronto District School Board (TDSB). She knew that S. was born in St. Lucia and understood that her first language was English. Dr. Temple spent two hours with S. and also met with her mother for about thirty minutes. This is typical for this type of assessment. [ 112 ] Dr.

Temple administered the following tests: 1) Reynolds Intellectual Assessment Scales (RIAS); an IQ test that tests cognitive ability in both verbal, non-verbal and memory areas, 2) Peabody Picture Vocabulary Scale – IV (Peabody) which tests how well a person understands the English language, 3) Developmental Test of Visual-Motor Integration (Visual-Motor), which assesses the coordination of visual and fine motor control, and 4) Emotion Cards, a test of social interaction with pictures of people with different facial expressions and situations that were shown to S. to see how she understands emotions and facial expressions. [ 113 ] Dr.

Temple also used the Vineland Adaptive Behaviour Scales (Vineland) test which is essentially a caregiver report completed based on questions asked of S.’s mother. The information provided by S.’s mother in the Vineland test was consistent with the other test results. Dr. Temple testified that S. even got lost walking to the washroom and back when the washroom was only 15-20 feet away from the room where she was being tested. [ 114 ] Dr.

Temple testified that she used all of these tests as they test for different things and that when she interpreted the results of these tests she used what she described as a “triangulation method”. This involves averaging out all of the scores for the many tasks completed within each test and considering all the scores on these tests to see if they are similar. If they are not, which was not the case for S., it might mean there is an issue to be considered further with respect to the results. This method in her opinion strengthens the reliability of the results from these tests. When Mr.

Zambonini asked about the reliability of the results if English was not S.’s first language, Dr. Temple responded that this was another purpose in administering many tests as some, for example the Visual-Motor test, are not language based. One would expect if there was a language problem that the scores for the language based tests would be depressed and the others would not be. If there had been a language deficient she would have caught it. [ 115 ] Dr. Temple also testified that she talked to S. and she demonstrated things as well.

The RIAS test is minimally verbal as compared to the Wechsler which was administered to S. by Laura Mahoney. The Visual–Motor test does not use language. Dr. Temple testified that in her opinion S. could understand what she was asked when given instructions with respect to the various tests. Her difficulties were not related to the language that she spoke in St. Lucia. Each of the tests where language was involved S. was able to answer the first question or more correctly which, according to Dr. Temple, meant that she understood the principle of the test. [ 116 ] In cross-examination Dr.

Temple admitted that if she had known that S. spoke French Creole for half or more of the time that she was in St. Lucia she might have given her more non-verbal tests but she did not agree with the proposition that there was a fundamental problem with her results if S. was more comfortable with French Creole. She testified that her results were very consistent and if language was a problem for S. she would expect an inconsistency in the verbal and non-verbal test results; Dr. Temple would have expected her language scores to be depressed but not the other tests. Large deviations could suggest a language issue.

In Dr. Temple’s opinion her test results are accurate because they show no major deviation. Not only were her results from the various tests that she administered consistent, the assessment done by Laura Mahoney of the TDSB shows the same range of scores and that S. is likely functioning in the moderate range of abilities. [ 117 ] Dr. Temple’s report concluded that S. is functioning at the level of a three to five year old child: Results found Ms. A. [S.] has significant and substantial deficits in her overall intellectual skills.

Her language, visual-spatial, and memory skills all fell in the Moderate range of Intellectual Disability …below the 1 st percentile for her age. Age-equivalent scores for all areas assessed were in the 3 to 5 year range. This means her thinking, understanding, and reasoning skills both verbally and nonverbally are similar to a normally functioning individual of 3 to 5 years. Daily living skills were also found to be extremely low. Ms.

A. [S.] requires prompts and assistance to perform most daily tasks including self-care, domestic chores, telling time, using money, and managing health-medical needs. [ 118 ] In Dr. Temple’s opinion S. would be able to understand concrete things in the present based on prior experiences and she would be able to accurately describe concrete reality in the moment but according to Dr. Temple, S.’s reality was more like a child’s reality. Dr.

Temple testified that S. would not be able to understand abstract concepts and that this is generally known about people with this level of disability based on previous research and test results and having worked with individuals at this level a lot before. She gave as an example that if someone at a moderate level of intellectual ability had never experienced Christmas before they would not be able to understand the concept of it. Furthermore most of their understanding is in the present. They are not able to abstract into the past or the future.

[ 119 ] Dr. Temple admitted that she had not seen S. in a social situation so her ability to correctly assess that was limited. She wouldn’t say that S. would be able to understand the concept of romance but she was not assessing her for that. When Dr. Temple used the emotion cards she did not explore the idea of romance or relationships. She didn’t question her with respect to her understanding of sexual interaction or do any tests to test her understanding of sexuality. Dr. Temple acknowledged that S. is an adult physically. She could have sexual desires and sexual thoughts.

This is not something she explored with S. She could say however, her actions and understanding would be at a very unsophisticated level as in a preschooler. She would be able to understand the concept of a boyfriend insofar as someone with a four year old vocabulary could. If S. had a boyfriend relationship in the past Dr. Temple presumed that she would be able to discuss it. She could experience liking someone. Dr.

Temple’s conclusion from using the Emotion Cards was that overall S. had great difficulty with this task and that in her opinion she has a very low level of social and emotional understanding for her age. [ 120 ] Dr. Temple testified that it seemed impossible to her, based on S.’s test results, that in speaking French Creole she might come across as a 30 year old woman. She said this was very, very unlikely in her opinion to suggest that in

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