R. v. C.W.., 2017 ONSC 6826

CITATION : R. v. C.W.., 2017 ONSC 6826 COURT FILE NO.: 1752/16 DATE: 20171115 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) ) R. Norman, for the Crown ) ) ) - and - ) ) C.W. ) ) ) V. Houvardas, for the defence ) ) ) ) ) HEARD: September 28, 29, 2017, at Brampton REASONS FOR JUDGMENT RESTRICTION ON PUBLICATION By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

Andr é J. [ 1 ] Constable Matthew Cunliffe of the Peel Regional Police Force charged C.W. with sexual assault on June 4, 2015, following a complaint by L.B., who is the daughter of his former common-law spouse. L.B. alleged that on four occasions in December 1987, C.W. fondled and performed oral sex on her. C.W. denied the allegations in a statement to the police and in his trial testimony.

SUMMARY OF THE EVIDENCE [ 2 ] L.B. testified that when she was approximately ten years old, she lived in a Mississauga apartment with A.B., who is her mother, and C.W. During this period, she returned home from school at approximately 3:45 p.m. C.W. would not be home at the time. C.W. would drive A.B. to work between 7:00 p.m. and 8:00 p.m. He would then return home. [ 3 ] L.B. testified that she did not regard C.W. as a father and that she had written in her diary that she hated him. L.B. also stated she did not have a mother/daughter relationship with A.B. She stated that A.B. regularly beat her.

L.B.’s relationship with her mother deteriorated even further when she learnt, while in grade six, that her mother was a prostitute. ALLEGATIONS [ 4 ] The first alleged incident occurred on a Sunday in the fall of 1987, at approximately 10:00 a.m. to 11:00 a.m. C.W. began talking to L.B. He told her that she would be more beautiful than her mother when she got older. He sat on a couch in the living room. She sat on the floor. C.W. moved closer to L.B. and then put his hand down on her vagina over her clothes. He said nothing while doing so. L.B. was wearing pajamas at the time. C.W. began sexually assaulting her.

L.B. did not tell anyone about the incident. Later that day, C.W. asked L.B. to kiss him on the cheek and then on his lips. She complied with his requests. [ 5 ] On another occasion, C.W. made her lie on the couch. He then lifted her pajamas and kissed her chest area for a minute or two. He stopped voluntarily. L.B.’s mother was asleep in her bedroom when this incident allegedly occurred. [ 6 ] The next alleged assault took place at approximately 9:00 p.m. while L.B. was watching television in her mother’s bedroom. C.W. had a friend visiting the home at the time.

L.B. testified that C.W. entered the room, lifted her pajamas, and performed oral sex on her. He then got up and left. [ 7 ] On another occasion, L.B. was sleeping in her bedroom. She woke up to find C.W. on her bed with his head between her legs. He was performing oral sex on her. The lights in her bedroom were off when this happened. C.W. stopped on his own accord. [ 8 ] In the last incident, L.B. testified that she woke up to find C.W. performing oral sex on her. She recalled getting angry when she caught him in the act and pushed him off the bed.

She yelled at him and threatened that if he touched her again she would tell her mother. The incidents stopped following her outburst. REPORTING [ 9 ] L.B. testified that she repressed the incidents in the months following December 1987. She remembered them one year later while watching two television programs about sexual assault. [ 10 ] L.B. described having “flashes” four or five years following the alleged assault. She shared this with her aunt. Her aunt then told her that she had had similar experiences but later realized that the “flashes” she experienced were actually memories.

L.B.’s aunt told her that she later remembered being asked to perform oral sex on a male. [ 11 ] L.B. told a number of persons about the alleged incidents. She told her boyfriend when she was approximately nineteen years old. She also told her family friends and her mother. She initially reported the alleged incidents to the police when she was 25 years old, but did not make a formal complaint. [ 12 ] L.B. has been suffering from depression for a decade. She is alienated from her mother, as well as her stepbrother and stepsister.

She has received counselling from a therapist and has participated in group therapy at her church. She has shared the alleged abuse with thirty people in her group therapy program. [ 13 ] L.B. had two children while in her early twenties. She and her children visited C.W. and her step siblings. However, because of the alleged sexual assaults she experienced, she testified that she never allowed her children to spend the night at C.W.’s home. C.W.’s Testimony [ 14 ] C.W. denied the allegations. He also denied living with L.B. and A.B. at a Mississauga apartment and the allegation that A.B. was a prostitute.

He attributed the source of L.B.’s allegations to J.B., L.B.’s grandmother, who he testified, always hated him. He also stated that L.B. had once asked her mother to persuade him to lend L.B. money. He also testified that he had little contact with L.B. when L.B. was a child and that she called him “dad” on one occasion when she was between nine and ten years old. He took care of her when he lived at a Toronto address, took her to school, and paid for her schooling during that time. He denied that he touched L.B. inappropriately. [ 15 ] Ad.

B., C.W.’s younger daughter, testified that in the early 1990s, she lived with C.W., L.B., A.B., and her brother. She said C.W. and L.B. had a normal “father/daughter” relationship. C.W. regularly dropped L.B. to school and picked her up. She testified that

L.B. left the home to live with her aunt. Afterwards, L.B. visited C.W.’s home on “special occasions”. She stated that L.B. brought herchildren to C.W.’s home, and on occasion, allowed them to spend the night there. L.B. also asked C.W. for help to repair her vehicle. Shealso asked him for help when she moved to live with her grandmother. GOVERNING PRINCIPLES [16] The Supreme Court of Canada’s decision in R. v. W.D., (SCC), [1991] 1 S.C.R. 742, provides an analyticalframework to determine whether the Crown has met its evidentiary burden where credibility is an issue:

(1) If the court believes the accused, then C.W. should be acquitted;

(2) If the court disbelieves the accused’s evidence; but is left in a state of reasonable doubt by it, C.W. should be acquitted;

(3) Even if the court disbelieves the accused’s evidence and is not left in a reasonable doubt by it, the court must nevertheless besatisfied of his guilt beyond a reasonable doubt, based on a totality of evidence it accepts. [17] This framework does not require a meticulous dissection of the evidence of an accused in search of telltale flaws,inconsistencies; or shortcomings to support a conclusion that he or she should be disbelieved or that his or her evidence creates areasonable doubt in the Crown’s case. In this regard, the Court of Appeal noted in R. v. C.F., 2017 ONCA 480, [2017] O.J.

No. 3034, atpara. 35 that “acceptance of compelling evidence of a complainant may provide a reasonable basis for rejecting an accused’s denial ofallegations.” Doherty J.A. further noted in R. v. J.J.R.D., (ON CA), [2006] O.J.

No. 4749 (C.A.), at para. 53, that: An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth ofconflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problemidentified with the way the accused testified or the substance of the accused's evidence. [18] There are special evidentiary considerations when an adult testifies about incidents which allegedly occurred when he or she wasa child. In R. v.

W.(R.), (SCC), [1992] 2 S.C.R 122, for example, the Supreme Court of Canada noted at para. 26 that: In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according tocriteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, thepresence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the ageof the witness at the time of the events to which she is testifying.

ANALYSIS [19] C.W. has steadfastly denied that he sexually assaulted L.B. He was not shaken in his denials during cross-examination. Therewere no major inconsistences between his testimony and his prior statement to the police. [20] The Crown submits that C.W.’s attempts to distance himself from L.B. by suggesting that he had no relationship with her is self-serving and is contradicted by Ad. B.’s evidence.

However, L.B. also confirmed that she had no relationship with C.W., and had evenwritten in her diary that she hated him. [21] The Crown further submits that C.W.’s testimony that he never lived in the Mississauga apartment with her and her mother, andtherefore lacked the opportunity to sexually assault L.B., is not credible.

However, C.W. had a clearer recollection of the variousaddresses where L.B. lived in her youth than L.B. did. [22] The Crown also submits that I should draw an adverse inference against C.W. given his failure to call L.B.’s mother as a witnessto support his testimony that he never lived with her in the Mississauga apartment. [23] C.W. testified that he had A.B.’s telephone number and believed that she lives in St. Catharines. However, he could not convinceher to come to testify. In these circumstances, it would be inappropriate to draw an adverse inference against C.W. for his failure to callA.B. as a witness.

As noted by the Supreme Court of Canada in R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, at para. 39: [I]t will rarely be “appropriate” for the trial judge to comment on the failure of the Crown to call a particular witness, and even more rareto do so with respect to the defence.

[ 24 ] Furthermore, C.W. does not have a proprietary interest in any witness. The Crown could have used the vast resources available to it to ascertain the whereabouts of A.B. and subpoena her as a witness. For the above reasons, the failure of C.W. to call A.B. to testify is not a factor that should be weighed against him. [ 25 ] The Crown further submits that C.W.’s testimony should be rejected because of his cynical attempt to explain why L.B. has accused him of sexual assault.

The Crown further submits that L.B.’s testimony is credible because she did not show any animus towards C.W., and to the contrary, was quite measured in her testimony. [ 26 ] C.W. does not bear the onus to show that L.B. had a motive to make up the allegations against him: see R. v. Stewart , [1994] O.J. No. 8111 (C.A.), at para 26 . However, C.W. described what he believed were the reasons why L.B. made up the allegations against him. His testimony that she tried to borrow money from him was not contradicted.

More importantly, C.W. testified that L.B. was influenced by her grandmother, J.B. who disliked him. [ 27 ] Following a successful Crown application to recall L.B. to give rebuttal evidence, L.B. confirmed that J.B. expressed negative views about C.W. and disliked him because he allegedly introduced A.B. to drugs and prostitution.

While L.B. testified that her grandmother did not encourage her to report the alleged assault to the police, it is clear that L.B. disliked C.W. because of what she had been told by at least one member of her family. [ 28 ] For the above reasons, I cannot reject C.W.’s testimony neither can I conclude that it fails to raise a reasonable doubt in the Crown’s case. [ 29 ] I am required to decide whether, based on L.B.’s testimony, the Crown has proven its case against C.W. beyond a reasonable doubt. [ 30 ] In this regard, I am mindful that in sexual assault cases, the burden of proof remains on the Crown as in any other case.

Furthermore, I cannot assess the Crown’s evidence with an assumption that the complainant is a truthful witness, or that a lesser standard of proof applies: see R. v. Nyznik , 2017 ONSC 4392 , [2017] O.J. No. 4138, at paras. 16-17 . [ 31 ] Additionally, in assessing L.B.’s testimony, I am mindful of the following statement by Watt J.A. in R. v. H.P.S. , 2012 ONCA 117 , [2012] O.J. No. 748, at para. 69 : I accept that reliability is not the same as credibility; that is well established. Credibility has to do with the honesty or veracity of a witness’ testimony.

Reliability has to do with the accuracy of a witness’ testimony… [A] credible witness may give unreliable evidence. [ 32 ] There is no doubt that L.B. appears to be a credible witness. Neither is there any doubt that she honestly believes that C.W. sexually assaulted her. Furthermore, there is no question that L.B. told a number of persons about the alleged assaults. [ 33 ] That said, I have a number of concerns regarding the reliability of L.B.’s testimony. First, the fact that she may have told a number of persons about the alleged abuse does not make her testimony more reliable.

Second, the fact that L.B. honestly believes that C.W. sexually assaulted her does not make her testimony more reliable. [ 34 ] I am also concerned by how L.B. came to recollect the alleged assault. She testified that following the incidents, she tried to repress the memory. Her memory was refreshed a year later after seeing an Oprah Winfrey show and a program called “Webster”, both of which dealt with sexual assault. [ 35 ] I also have concerns regarding the reliability of L.B.’s testimony about her interaction with her aunt four to five years following the alleged assaults.

First, her aunt told her that she was similarly abused by a male when she was a child. Second, L.B. testified that her aunt advised her that she had come to realize that the “flashes” she had experienced during her youth were in fact memories of the abuse she had experienced. Third, L.B.’s aunt told her that the sexual abuse she had experienced involved oral sex.

While I cannot say that L.B.’s aunt implanted the memory concerning abuse in L.B.’s mind, I cannot rule out the possibility that L.B.’s recollections about having been sexually abused may have been influenced by her aunt’s information. [ 36 ] C.W.’s counsel submits that the evidence that L.B. regularly visited C.W.’s home with her two children and sought his help at various times undermines her claims of having been sexually abused. I disagree. There is no hard and fast rule on how persons who may have been sexually assaulted behave.

It cannot be said that complainants will immediately terminate all contact with their alleged abuser, particularly if he or she is a relative or family friend: see R. v. D.D. , 2000 SCC 43 , [2003] S.C.J. No. 44, at para. 65 . [ 37 ] That said, L.B.’s visits to C.W. following the alleged assaults, as well as her decision to leave her children at his home, raise some concern. L.B. testified that she never left her children at C.W.’s home because of the alleged sexual abuse. However, Ad. B. contradicted L.B. when she testified that L.B. left her children in C.W.’s home on a few occasions in later years.

This would have been during the period when she remembered the alleged assault. Ad. B. was not shaken in cross-examination on this evidence. There was no suggestion that she colluded with C.W. Indeed, she contradicted his testimony when she testified that he had in fact had a father/daughter relationship with L.B. [ 38 ] For the above reasons, I am unable to conclude, based on the testimony of L.B., that the Crown has proven C.W.’s guilt beyond a reasonable doubt.

CONCLUSION [ 39 ] For the above reasons, C.W. is acquitted. _____________________ André J. Released: November 15, 2017 CITATION : R. v. C.W., 2017 ONSC 6826 COURT FILE NO.: 1752/16 DATE: 20171115 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – C.W. REASONS FOR JUDGMENT André J. Released: November 15, 2017