Accused acquitted of sexual assault, sexual interference and invitation to sexual touching

[REDACTED]. v. [REDACTED]

REASONS FOR JUDGMENT

1. Judge: [REDACTED]. (orally):— Mr. [REDACTED] was charged with unlawfully committing a sexual assault on his stepdaughter, unlawfully touching her for a sexual purpose, and inviting her to touch him for a sexual purpose.
2. For the reasons that follow, I find him not guilty of all three charges.
3. Pursuant to [REDACTED], [1991] 1 S.C.R. 742, if I accept the evidence of Mr. [REDACTED], I must acquit him. Even if I do not accept his evidence, but it raises a reasonable doubt, I must acquit him. Even if I reject his evidence, I must still assess the Crown's case to determine whether the allegations have been proved beyond a reasonable doubt.
4. The accused gave evidence and denied all of the allegations made against him. His evidence was not shaken in cross-examination. The only matter that arose from the accused's evidence that could reduce his credibility is the fact that shortly after his arrest on August 23, 2007, he moved out of his apartment on September 20th, 2007, and left for Calgary and Vancouver. He did not attend for his first court date on September 24, 2007, but was rather arrested in Vancouver on August 7, 2008. He had pled guilty to a breach of his undertaking on January 9, 2009. It was his evidence that he left as a result of the relationship with the complainant's mother coming to an end, the fact that she was preventing him from seeing his children, the death of a close aunt and the fact that these charges were hanging over his head. He denied that he left as a result of his guilt on these charges. I have no reason to reject his explanation and accordingly, I do not find that his departure to British Columbia seriously impacts upon his credibility.
5. In reviewing the third step of [REDACTED] I am left with a reasonable doubt, even if I were to reject the evidence of the accused.
6. The evidence of the Crown relied primarily upon the evidence of the nine-year-old complainant, [REDACTED] I have been provided with the cases of R. v. C.C.F. [1997] 3 S.C.R. 1183, R. v. W.R. [1992] 2 S.C.R. 122, R. v. M.G. [1994] O.J. No. 2086, R. v. Stewart, [1994] O.J. No. 811 and R. v. B.G. [1990] 2 S.C.R. 30. These cases deal with how the court should assess the evidence of child witnesses. I am mindful that I must assess witnesses of tender years for what they are -- children and not adults. I should not expect this complainant to perform in the same manner as an adult.
7. I agree with Justice Finlayson in R. v. Stewart that this does not mean, however, that we should subject the testimony of children to a lower standard, lower level of scrutiny for reliability than we would adults. Changes to the evidentiary rules were intended to make child evidence more readily available to the court, but were never intended to encourage an undiscriminating acceptance of the evidence of children while holding adults to higher standards.
8. In R. v. M.G., Galligan J.A. pointed out that probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness box and what the witness said on other occasions, whether under oath or not. Inconsistencies on minor matters or matters of detail are normal and to be expected. They do not generally affect the credibility of the witness. This is particularly true in cases of young persons. But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth. The trier of fact is then placed in the dilemma of trying to decide whether or not it can rely upon the testimony of a witness who has demonstrated a carelessness with the truth.
9. [REDACTED] came across as a very articulate and intelligent witness. What she had to say was often quite forthright. In explaining the inconsistencies in her evidence, she was clear in saying that she either forgot important events in previous statements or simply had no answer for why she had an inconsistency.
10. Her inconsistencies and these explanations, however, led me to find that she is an unreliable witness. When she first disclosed to her mother, she said only that Mr. [REDACTED] touched her private parts. Her mother asked her if he stuck anything inside of her and she said no.
11. Then on speaking with the police, [REDACTED] said, "He touched me in a place where he's not supposed to be touching me when my mom wasn't home". By this she meant on her vagina. She went on to say that he used his hands and rubbed her vagina, "Sometimes he'd take my pants off or shorts and my underwear too, he just used his hand to rub it. He would use his penis as well and he would use it to rub mine". When asked if he had ever asked her to touch him, she said, "Yes, and I didn't do it but he grabbed my hand and put it on his penis".
12. At the preliminary inquiry she added that he put his fingers into her mouth and bum and put his penis in her mouth. And finally at trial she said that he used his tongue to touch her on her vagina but not on her face and bum. She said he did that every time that he touched her. She was not sure if his tongue went into her vagina or not. She agreed that she did not say that at the preliminary inquiry. She had no explanation for the increasing allegations other than she had forgotten at earlier opportunities to tell the story.
13. The first time that she disclosed these allegations was shortly after her mother and Mr. [REDACTED] had separated. She said that her mother had made reference to [REDACTED] on the phone to her friend and that is what made her remember to tell her mother about the allegations. She could not give an explanation of why the reference to [REDACTED] made her remember.
14. Her mother in her evidence denied that there was any discussion about [REDACTED] in front of her daughter at the time that the allegation was made.
15. [REDACTED] was clear that these events had occurred on occasion in her bedroom with the door locked. She gave us details of how the door locked, however, both Mr. [REDACTED] and [REDACTED] had no recollection of any bedroom doors having locks on them.
16. Both [REDACTED] and her mother have said that she was upset when she had a physical examination by [REDACTED]. [REDACTED] testified that [REDACTED] was, in her words, freaking out as soon as the doctor attempted to examine [REDACTED] She testified that [REDACTED] was crying with tears running down her face. She testified that she had a clear memory of this event.
17. On the other hand, [REDACTED]'s note that was entered on consent states,
    1. "On examination, [REDACTED] was alert, interactive and in no distress. She was looking forward to going back to her old school in grade three. Her general physical examination was absolutely normal. The perineal examination was done with no distress at all. She allowed me to take a look and there was no indication of any trauma or any signs that would prove or disprove sexual touching."
18. There is no explanation for the substantial inconsistency here between [REDACTED]'s note and the recollection of [REDACTED] and [REDACTED]
19. [REDACTED] was clear that her mother did not ask her any questions when she first disclosed. However, at the preliminary inquiry she said the following:
    1. Q. Okay. And how often do you talk to your mom about this, what happened, the touching?
       A. She has never asked me questions about it.
       Q. She has never asked you questions, not even once?
       A. No.
       Q. Not even when you first told her?
       A. No.
       Q. She didn't ask you anything?
       A. She only asked me, like, "Did he rub your hand" -- I think that's what she said -- "on it?" And I just said, "Yes, I think".
       Q. Okay.
       A. Yeah.
       Q. So you aren't even sure that he had done that?
       A. No, she just asked me that and I said, yes.
       Q. And you said, "Yes, I think"?
       A. Yeah.
       Q. Okay. Why did you say, "I think"?
       A. Because that's when I kind of forgot everything.
       Q. Okay.
       A. Yeah.
       Q. Okay. And it just all went out of your -- it just wasn't in your mind, none of it?
       A. No.
       Q. Okay.
       A. Not really.
       Q. So how is it that you're able to remember now if you had forgotten it all?
       A. I don't know.
20. Given that [REDACTED] cannot honestly answer that last question, I cannot rely upon her evidence to find guilt beyond a reasonable doubt.
21. The defence relied upon a number of other inconsistencies in [REDACTED]'s evidence. Many are the type of inconsistencies that I would anticipate for a child of this age.
22. On the other hand, the matters set out above are the material concerns that do generate a reasonable doubt so that I cannot rely upon the evidence of [REDACTED]
23. [REDACTED] acknowledges that the allegations came forward after she and Mr. [REDACTED] had separated. Both she and Mr. [REDACTED] agree that their relationship prior to separation was an angry one. [REDACTED] left without notice to Mr. [REDACTED] she would not allow him access to the children. He would not allow her to take any of the household furniture. He then threatened to take her to court for custody of their son. Within a few days of that threat, [REDACTED] made her first disclosure. [REDACTED] denies that she was involved in the allegations coming forward, but does acknowledge the convenience of the timing. I have no reason to reject her evidence on that point, but the timing does cause me concerns when considering all of the evidence.
24. Finally, [REDACTED] said that after [REDACTED] made her first allegation she phoned Mr. [REDACTED] to confront him with what she had said. In her examination in-chief she said that while she was on the phone, [REDACTED] came running in and said that she should not tell him what she had said because he would deny it and that he would hurt her.
25. In cross-examination, she was confronted with her video statement to the police. In that statement taken two weeks after the phone call, she said only that [REDACTED] said, "That if daddy said I didn't do it, he's lying". There was nothing about hurting her. She explained this inconsistency by saying that she simply forgot about it when speaking with the police. I do not accept that she would leave this item of evidence out if it were true. Her evidence had been that Mr. [REDACTED] was in need of anger management. This sort of concern would be front and centre for any mother speaking with the police. This addition to her statement to the police makes it difficult for me to rely on other parts of her evidence.
26. As a result, Mr. [REDACTED] is found not guilty of all three counts in the indictment, and I have so endorsed the indictment.