nan SUPREME COURT OF NOVA SCOTIA Citation: v. C.R.H., 2012 NSSC 101 Date: 20120308 Docket: CRH 346803 Registry: Halifax Between: Her Majesty The Queen Provincial Crown Accused Editorial Notice Identifying information has been removed from this electronic version of the judgment. Restriction on publication: Section 486.4 of the Criminal Code Judge: The Honourable Justice Peter P. Rosinski Heard: February 21, 22, 23, 27, 28, 29, 2012, in Halifax, Nova Scotia Counsel: Eric Taylor, for the Provincial Crown Accused, Self-Represented, By the Court: Introduction [1] This decision will address whether the Crown has proved beyond a reasonable doubt that Mr. H. is guilty of sexual offences involving SG. Mr. H. [DOB January 4, 1968] is charged with four counts as follows:1. That he between the 16 day of October 1999 and the first day of April 2009 at or near Dartmouth... did unlawfully commit a sexual assault on SG contrary to s. 271(1)(a) of the Criminal Code;2. that he between 16 day of October 1999 and the first day of May 2008, did for a sexual purpose touch SG, a person under the age of 14 years, with a part of his body - the tongue and hands... contrary to s. 151 of the Criminal Code;3. that he between 16 day of October 1999 and the first day of May 2008, did for a sexual purpose, invite SG, a person under the age of 14 years, to touch directly a part of his body - the penis of C. R. H., contrary to s. 152 of the Criminal Code;4. that he between the first day of May 2008, and the first day of April 2009, did for a sexual purpose touch SG, a person under the age of 16 years with the part of his body - the hands... contrary to s. 151 of the Criminal Code. [2] At his trial heard from the following Crown witnesses: 1. K. C. DOB February *, 1993 classmate (and boyfriend of SG for approximately years i.e. 2006 2009); 2. N. S. DOB May *, 1994 classmate and very close friend of SG she returns to N. for the summers with her parents; 3. J. L. DOB August *, 1994 classmate and very close friend of SG; 4. J. R. [previously D.] DOB August *, 1969 guidance counsellor at School in Dartmouth since 2004; 5. M. G. DOB May *, 1967 mother of SG; 6. S.G. DOB October *, 1993; 7. Detective Constable Sandra McNaughton DOB May 15, 1970 RCMP Officer who was the lead investigator regarding these allegations; and for the defence: 8. A. G. DOB June 15, 1992 biological daughter of the accused, C. H.. [3] In this case it is important to outline the family relationships as number of individuals were referred to in testimony. [4] At all material times hereto, Mr. H. has been in common-law relationship with D. G., with whom he has two children: A. DOB June *, 1992; and K. [born approximately 1996]; while he was stepfather to D. G.’s son, M. C. C. [born approximately 1982]. [5] D. G. is D. G.’s brother, and they are some of the children of B. and C. G.. [6] The biological father of SG, according to her mother, is C.C., who has had no contact with her since she was two months old. D. G. in all respects acted as the father of SG from very shortly thereafter. SG only became aware in May 2009 that he was not in fact her biological father. [7] D. G. and M. G. had son together, J, DOB March *, 1996. [8] At no times relevant to these allegations did D. G. and M. G. live at the same residence. Both SG and J. continuously lived with M. G. at all times relevant hereto. [9] Nevertheless, D. G. was considered to be the father of both SG and J. by all concerned. will refer to him as such, since he has continuously acted in this role throughout the children’s lives to date. [10] Between approximately 1998 and 2009, SG and J. regularly visited their father on weekends, and during the summers. Their mother was insistent that they maintain this regular access with their father, who throughout all relevant time periods herein lived in Dartmouth, Nova Scotia. [11] am satisfied that from approximately 2003/2004, D. G. lived with his sister D. and her family, including the accused, C. H.. Consequently when SG and J. visited their father, they necessarily visited the residence of C. H.. All the allegations herein, save one incident are to have taken place at Mr. H.’s residence(s). [12] Throughout that time period, both children considered Mr. H. an uncle, by marriage [in fact, if not legally married] to D. G., their father’s sister. [13] In late April and early May 2009, SG disclosed her allegations to her close friends, K. C., N. S., J. L., and the school guidance counsellor, J. R., who revealed the existence of the allegations to SG’s mother, after which the police were notified. [14] Most of the witnesses who testified were questioned about where SG was living at the time of the alleged incidents, in comparison to where her father and Mr. H. were living. While all the parties were living in Dartmouth, Nova Scotia at all material times, each household, (i.e. that of M. G. and Mr. H./D. G.), moved number of times during the period of 1999 2009. As result, there is some confusion between the evidence of the witnesses about where each household lived for what period of time, which has implications for where and when the alleged incidents are to have taken place. [15] Of the witnesses that testified, SG and her mother, and A. G. were the only ones in position to say where the households might have lived and for what time periods between 1999 and 2009. keep in mind that SG was born in October 1993 and A. was born in June 1992. Thus they would have been between and 16 years, and and 17 years old respectively. Given their young ages during some of these time periods, and the frequencies of their relocations within Dartmouth, some confusion may be expected. [16] M. G. in her evidence suggested that: 1. She lived at Road around the time that SG was born and that she moved to Road in about 1999, and then to Road in approximately 2003 A. G.’s evidence may be taken to have suggested that C. G. lived with them at Street, [I conclude that she was not credible about that since SG’s mother seemed to have more precise recollection of why D. moved to Street when he did, i.e. because he shared an apartment with his dad, C. G. at Road and when his dad died he moved in with Mr. H.’s family at Street and it would seem unusual to me that D. would allow the father that molested her, to reside in home with her young daughter present]; 3. that thereafter, D. G. moved to Street, to share residence with his sister D. and Mr. H. [which from the evidence, estimate to be between late 2003 and early 2004]; 4. she has known Mr. H. for approximately 18 years through D. G. [which from the evidence, estimate to be since approximately 1994], however she did not know where Mr. H. was living at the time she was living with her children on Road. [I conclude that Mr. H. was not proved to be living with D. G. or in the Road area before D. moved in with him at Street in 2003 2004. note that A. G. in her evidence suggested that she attended primary school at school which is much closer to [the other schools she attended i.e. Elementary and School than to the Road area]; 5. from Road she and her children moved to Street, which is the upstairs apartment to the residence in which D. G. and C. H.’s family lived downstairs being Street [she estimated that it may have been couple of years before they moved there after D. did which from the evidence estimate is approximately 2004 2005. SG in her testimony indicated that she went to School, which is in the vicinity of Road, until grade four when she would have been 10 in June 2004 she testified that she attended school for grades five and six at which time she would have been between 10 and 12 years of age which suggests it was likely in 2004 that they moved to Street which is close to the school note that M. G. testified, when asked about what schools SG was in and where they lived at the time, that sometime between grades five and six, they moved from Road to Street this suggests it was between 2005 and 2006 that they moved to Street conclude that most likely SG and her family moved to Street at the end of her grade year, which would be around the time she was still 10 years old in summer 2004]; 6. She did not say how long she believed they stayed at that address, but it is clear that they did move to Street thereafter, and that that was after D. and C. H.’s family had moved to Street [a large white house] again SG testified that sometime around grade 7, she moved to Street, and that D. G. and C. H.’s family had moved to Street before them this suggests that SG moved to Street approximately in 2007, and that Mr. H. had moved to Street sometime between the summer of 2004 and 2006 A. G. was not able to recall when they moved to Street [I conclude that Mr. H. moved to Street sometime in 2006]; 7. at the end of 2009 they moved to *, Halifax, although SG continued to attend grades 10 to 12 at the School [SG agreed with this in her testimony moreover she testified that D. G. and C. H.’s family had moved from Street to Crescent before SG and her family moved to *, Halifax A. G. was not able to recall when they moved to Crescent, however she did say when she started dating her boyfriend in March 2009, she was living at therefore it would seem from the evidence that sometime between their move to Street in 2006 and April 2009, Mr. H. had moved to Crescent moreover, the evidence also suggests that at the time of the disclosure in April 2009, Mr. H. was living at Crescent note that Crescent is in the immediate vicinity of Court and Drive which is not far distance from School this is significant because SG described “the most recent incident” happened in and referenced *, although she did not know the specific name of the street, it was “by C.” A. confirmed in her testimony that these landmarks are consistent with Crescent and that it was also very close to dealership]. [17] This summary of that evidence contains my view of the facts that have accepted regarding where when SG and her family, and Mr. H. and his family were living in Dartmouth at the material times. Crown Position [18] In relation to the four counts on the Indictment, the Crown’s position as to which allegations relate to each are as follows [bearing in mind SG was born October *, 1993]: Count #1 s. 271 Criminal Code October 16, 1999 to April 1, 2009 sexual assaults i) the most recent incident happened at Crescent, where couple of months before the late April 2009 disclosure by SG, when she was 15 years old, Mr. H. intentionally “grabbed’ or “squeezed” her breast while she was holding garbage bag in the kitchen area; ii) at the house in the area of Street and area Crescent] Mr. H. while in the process of tickling SG in A.’s room, put his hand part way down the front of her pants near to her vagina [SG testified that she was attending School [grade to 9] at this time [Fall 2006 June 2009] and she was already dating K. so it would have been between grade and grade when she was 13 to 15 years old (Fall 2007 to the end of 2008]. iii) at Street she was sitting alone at night playing computer card game wearing baggy shirt with no bra, when Mr. H. came up behind her and put his hand inside her shirt and was rubbing her breast, skin to skin [D. G. lived at Street [with Mr. H.] between late 2003 and 2006, thus this most likely happened when SG was between 10 and 12 years old]; iv) at Street the “pool incident” SG was on her way to the pool in the summer, when Mr. H. intercepted her, and scooped her up taking her into K.’s room, where he placed her on some form of table, pushed aside her one piece bathing suit and licked her vagina to times [she estimated she was in grade or 6, thus it would have happened in the summer of 2005 or 2006 when SG was 11 to 12 years old]; v) at Street the “couch incident” SG testified she was asleep on the couch and awoke to the feel of being touched between her legs, with Mr. H. on his knees right in front of her [she was unable to precisely identify when this happened, but the other evidence suggests that it was between 2004 and 2006, when SG was between 10 and 12 years old]; vi) the first incident she remembers “the bathroom incident” SG testified that she was “tiny” and estimated she was either in School [which she attended to the end of grade in June 2004 and she would have been 10 years old] or school where she attended grades and 6, at the time Mr. H. took her into the bathroom, sat himself on the toilet seat and put her across his knees at which point he had removed her clothing and then licked her vagina [from the other evidence available it is possible that this took place either at Drive (since School is close by, and D. G. only moved to Street sometime between late 2003 and early 2004 after his father died), or Street]; Count #2 s. 151 Criminal Code October 16, 1999 to May 1, 2008 sexual touching of SG by Mr. H. with his tongue and hands: i) this allegation refers to the sexual assault allegations of Count #1 that happened before SG’s 14 birthday on October 2007. Count #4 s. 151 Criminal Code May 1, 2008 April 1, 2009 sexual touching of SG by Mr. H. with his hands: i) this allegation refers to the sexual assault allegations of Count #1 that happened after SG’s 14 birthday on October *, 2007. Count #3 s. 152 Criminal Code October 16, 1999 May 1, 2008 invitation to sexual touching made by Mr. H. to SG: i) at Street SG was playing computer games in K.’s room when Mr. H. came in and offered her $20 “if would do something to him or let him do something to me... knew in my head what he wanted was nothing appropriate... to touch my breasts or something” [this incident having happened at Street therefore likely occurred between 2004, and sometime between the latter part of 2004 and 2006 when it appears D. G. and Mr. H.’s family moved to Street most likely it was between 2005 and 2006 when SG was between 11 and 13 years old]; ii) the the dog” incident SG had walked from Street to Street with her dog, and gone upstairs into A.’s room looking for her. Mr. H. followed her up the stairs. While no one else appeared to be in the home, and while SG was inside that room, he stood at the entryway of the room, dropped his pants to his ankles exposing his penis to her and stated “If you don’t take your pants off, will”; and told her repeatedly to “just touch it”, which by words and actions she refused [given the other evidence herein, this incident would likely have taken place between the time when SG was in grade (September 2006 June 2007) and before Mr. H. moved to (likely after 2006 and before 2009) during this time SG would have been between 12 and 13 years old]. [19] The evidence the Crown tendered also included incidents that it says reflected Mr. H.’s “ongoing sexual interest” in SG, for example: i) as SG testified, “at random times”, mostly at Street but also in other locations thereafter [likely Street and Crescent], Mr. H. would “flash” or expose to SG alone his soft penis and laugh SG estimated this happened at least five times to her memory; ii) when SG lived upstairs from Mr. H. at Street, one night when she thought no adults happened to be home, Mr. H. came to her upstairs apartment wearing his bathrobe, boxers and no shirt where he found SG on the couch. He talked to her for couple of minutes on the couch and the next thing that happened SG testified “I am on my back trying to push him off me... he was grabbing onto my wrists... was using my legs trying to push him off of me”, at which point the telephone rang and Mr. H. allowed her to answer it, after which he went downstairs; iii) at Mr. H.’s Street residence, C. C. found web camera in the area of the toilet in the bathroom he alerted others and D. G. and SG also saw it. Moreover, D. G. and J. G. were downstairs and found monitor in an area which Mr. H. used as workshop which was streaming live feed from the web camera in the bathroom, such that they could see persons in the bathroom. Very shortly thereafter Mr. H. became aware of it, and he went into the bathroom it was never seen again. [At this point, wish to emphasize will not take this evidence into account in any way because there is no direct evidence that Mr. H. had anything to do with the placing of the camera in the bathroom, moreover any probative value of this evidence is greatly outweighed by the prejudice to Mr. H.’s fair trial rights]; iv) at Street, SG was taking shower in the bathroom when unexpectedly Mr. H. walked into the bathroom claiming to be looking for bar of soap. While she was in the shower, SG stated the shower curtain rod was dislodged [“I did not pull it... I’m not going to say he tugged on the shower curtain”] such that while he was there, it fell and she had to wrap herself in the shower curtain in order not to be seen naked by Mr. H.. Defence Position [20] Mr. H.’s position herein is an outright denial of any of the allegations made by SG. He suggests that SG made up generalized allegation in April 2009 against him in order to cause her boyfriend K., to not continue with his intention to break up with her. However, once she had made generalized allegation to him, it became necessary for her to maintain the lie and also tell her other friends as well, and ultimately the guidance counsellor, J. R., her mother and then the police. When pressed for details, she was forced to give the generalized allegation greater specificity. [21] Mr. H. also argues that moreover, her evidence is not credible since: i) She is inconsistent as between her testimony in court and her prior preliminary inquiry transcript and police statement; ii) her behaviour is not rational when one considers that not only did she not immediately scream out when she was touched by Mr. H., or report any of the incidents to other persons shortly thereafter, but that she kept going back to visit her father who lived with Mr. H. even after these incidents, and repeatedly put herself at risk by allowing herself to be alone with Mr. H.; iii) she delayed her disclosure for so long, which is not rational or believable since she had numerous persons whom she could have confided in and disclosed to, which could have thereby ended the alleged incidents once and for all. [22] Mr. H. also points out that her evidence is contradicted in important respects by that of A. G.: for example, that in household full of people all the time, there was virtually no opportunity for Mr. H. to commit such offences without someone having noticed something was wrong and taken further action. [23] Mr. H. says there is no evidence beyond reasonable doubt that he committed any of these offences. The Relevant Law [24] The relevant sections of the Criminal Code of Canada between 1999 and 2009 are the offence sections, sections 151, 152 265 and 271. Some of these sections changed over time. The relevant portions of sections 265, 271 and 273.1 did not change. [25] Section 150.1(1) and (2) from May 1, 1989 to April 30, 2008 precluded complainant under the age of 14 years from consenting to offences against them under sections 151, 152 or 271 in case such as this. Similarly, from May 1, 2008 onward, those subsections precluded complainant under the age of 16 years from consenting to offences against them under sections 151, 152 or 271 in case such as this. [26] Similarly, from May 1, 1989 to April 2008, section 151 made it an offence for any person “who, for sexual purpose, touches, directly or indirectly, with part of the body or with an object, any part of the body of person under the age of 14 years...”. [27] From May 1, 2008 onward, the wording is identical except that it is an offence in relation to “a person under the age of 16 years...”. [28] Similarly from May 1, 1989 to April 30, 2008, section 152 made it an offence for any person “who, for sexual purpose, invites, counsels or incites person under the age of 14 years to touch, directly or indirectly, with part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites the body of the person under the age of 14 years...”. [29] From May 2001 onward, the wording is identical except that is an offence in relation to “a person under the age of 16 years...”. [30] The essential elements of sexual assault were comprehensively addressed by the Supreme Court of Canada in v. Ewanchuk 1999 CanLII 711 (SCC), [1999] SCR 330. In summary, to ground conviction the Crown must prove beyond reasonable doubt that the accused: i) Touched the victim; ii) in manner such that he has violated the sexual integrity of the victim [all the circumstances surrounding the relevant conduct must be examined in an objective fashion to determine whether the conduct was of sexual nature and violated the victim’s sexual integrity]; iii) in the absence of consent to do so from the complainant [the absence of consent is subjective. It is determined by reference to the victim’s internal state of mind towards the touching when the touching takes place]; and that iv) the accused intended to touch the victim, and v) that the accused had knowledge of, or was reckless, or willfully blind regarding the victim’s lack of consent. [31] To ground conviction under s. 151 of the Criminal Code, the Crown must prove beyond reasonable doubt the following essential elements of the offence: i) That the accused intentionally touched the victim [being less than 14 years old or less than 16 years old depending on the time period in question]; ii) intending sexual interaction of any kind with the victim, and with that intent makes contact with the victim’s body [“for sexual purpose”]. [32] To ground conviction under s. 152 of the Criminal Code, the Crown must prove beyond reasonable doubt the following essential elements of the offence: i) That the accused, for sexual purpose, communicated with victim [being less than 14 years old or less than 16 years old, depending on the time period in question], in manner constituting an invitation, incitement or counseling of conduct in which that the victim would touch any person, including the accused or the child him or herself; and ii) that the accused intended the victim receive the communication as an invitation, incitement or counseling to do the physical conduct, or by present state of mind that an accused knew the substantial and unjustified risk that the victim would receive the communication as an invitation, incitement or counseling to do the physical conduct, coupled with knowing the communication was for sexual purpose. Assessment of the Evidence [33] very carefully followed the evidence of each witness, and watched the manner of giving their evidence [eg. Whether they gave it after due consideration, or volunteered answers before questions were finished; their gestures; their seriousness/recognition of the serious nature of the proceedings; their composure and reaction, particularly under cross examination; and the confidence with which they appeared to give their answers]. This list is of course not exhaustive. [34] As to the assessment of the credibility of witnesses, while it is by no means an exhaustive list, find useful the aspects cited, by Provincial Court Judge Clyde F. Macdonald in R. v. DLC [2001] NSJ No. 554 at para. 8, where he said, in part: And certainly keep in mind in this case, as well, that the task of finding the facts...involves the weighing of the evidence but it is certainly not an exercise in preferring one witness’ evidence over that of another. And of course, that's because the doctrine of reasonable doubt applies to the issue of credibility ... I'm going to indicate some aspects of witnesses testimony that find helpful and this determination is as follows. They are in no particular order: 1. The attitude and demeanor of the witness. ask whether the witness is evasive, belligerent, or inappropriate in response to questions and keep in mind the existence of prior inconsistent statements or previous occasions where the witness wasn't truthful. Those are useful to me. 2. consider the external consistency of the evidence. And by that mean, is the testimony of the witness consistent with independent witnesses which is accepted by me, the trier of fact; and 3. consider the internal consistency of the testimony. By that mean, does the witness’ testimony or evidence change while on the stand. 4. concern myself with whether the witness has motive to lie or mislead the Court. consider the ability of the witness to originally observe the event, to record it in memory and recall the event; and 5. Of course, the passage of time since the event in question is factor in this regard. This is one factor in lot of cases, and in this case, find is most important. 6. concern myself with sense of the evidence. Does common sense, when applied to the testimony of the witness, suggest the evidence is impossible, improbable or unlikely? And what other results are there when apply my common sense to the evidence? [35] As this list suggests, witness' credibility is mixture of their reliability (are they now accurately recalling matters they had proper opportunity to observe and commit to memory in the past?) and impartiality or honesty (are they disinterested in the outcome of the case and do not favour any party over another?) [36] Generally, also keep in mind that SG and A. G. were born on October *, 1993 and June *, 1992 respectively. They would have been between 10 to 15 and 11 to 16 years old respectively during the most relevant time periods herein. SG disclosed these allegations when she was 15.5 years old. A. G. was almost 17 years old, and would have become aware of those allegations very shortly thereafter. Until that point in time, both of them had been “like sisters”, since SG and her brother J. spent pretty well every weekend and their summers visiting their father who lived at the same location as C. H. and his daughter A. G. between approximately 2004 and May 2009. [37] When they testified SG was 18 years old whereas A. was 19.5 years old. Nominally they were children when these offences allegedly occurred, and they testified while they were adults. [38] Before examining their evidence in more detail, it is important to recall that the courts have set out certain guidelines to assist judges and juries in assessing the credibility of witnesses such as SG and A. in cases such as this. [39] In number of decisions in the early 1990's, courts came to realize that they must approach the evidence of children not from the perspective of rigid stereotypes, but rather on “common sense” basis, taking into account the strengths and weaknesses which characterized the evidence offered in any particular case see for example v. RW 1992 CanLII 56 (SCC), [1992] SCR 122 paras. 23 26 per McLachlin, J. (as she then was) for the court. [40] Previously the unsworn evidence of child could not found conviction unless it was confirmed or corroborated by independent evidence. Once courts acknowledged that children experience the world differently from adults, it was hardly surprising that the details important to adults, like time and place, may be missing from the recollection of children. [41] Assessing the credibility of an adult witness describing offences alleged during their childhood was also contentious. In that respect, McLachlin, J. in v. R.W. noted at para. 26: It is neither desirable nor possible to state hard and fast rules as to when witness's evidence should be assessed by reference to "adult" or "child" standards ‑‑ to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But would add this. In general, where an adult is testifying as to events which occurred when she was child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. [42] also keep in mind the comments of the Ontario Court of Appeal, per Blair, JA (Cronk, JA concurring) in v. HPS 2012 ONCA 117 (CanLII) that simply being satisfied about the sincerity, and believability of the witness, may not be sufficient to conclude that they are credible, because one must be satisfied about their reliability as well. [43] In that respect, Blair, JA stated at paras. 35 and 37 38: Memory is fallible. Courts have long recognized that even an apparently convincing, confident and credible witness may not be accurate or reliable and that it is risky to place too much emphasis on demeanour alone where there are contradictions and inconsistencies in the evidence: see R. v. McGrath, [2000] O.J. No. 5735 (S.C.), at paras. 10‑14; R. v. Stewart (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509, at pp. 515‑18; R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 16 O.R. (3d) 295, at pp. 311‑15. As Finlayson J.A. noted in Stewart, at pp. 516‑17: It is evident from his reasons that the trial judge was impressed with the demeanour of the complainant in the witness box and the fact that she was not shaken in cross‑examination. am not satisfied, however, that positive finding of credibility on the part of the complainant is sufficient to support conviction in case of this nature where there is significant evidence which contradicts the complainant's allegations. We all know from our personal experiences as trial lawyers and judges that honest witnesses, whether they are adults or children, may convince themselves that inaccurate versions of given event are correct and they can be very persuasive. The issue, however, is not the sincerity of the witness but the reliability of the witness's testimony. Demeanour alone should not suffice to found conviction where there are significant inconsistencies and conflicting evidence on the record: see R. v. Norman for discussion on this subject. [Citations omitted, emphasis added.] ... The allegations in this case relate to events that occurred many years before the trial, when the complainant was little girl and teenager. She was 36 when she testified. In such cases cases evolving out of allegations of distant events, including allegations involving historical acts of physical and sexual abuse particular caution and scrutiny are called for in approaching the reliability of evidence. Rosenberg J.A. highlighted the need to be cautious about relying upon adult memories of childhood impressions in R. v. M.(B.) (1998), 1998 CanLII 13326 (ON CA), 42 O.R. (3d) (C.A.), at p. 29. Memories become increasingly frail over time. Evidence that might have existed had the matter been dealt with earlier may have disappeared. Or it may become contaminated. Life experiences can colour and distort the memory of what occurred. [44] In v. HPS, Justice Blair continued at paras. 39, 40, 41: 39 Minden J. discussed these cautionary considerations in McGrath, at paras. 11‑14: Much of the author's focus is on the need for particularly rigorous approach to issues of reliability given the frailties of memory of distant events: see: R. v. S.(W.) (1994), 1994 CanLII 7208 (ON CA), 90 C.C.C. (3d) 242 (Ont. C.A.). The trier of fact's experience and knowledge about human nature and memory may serve to betray rather than guide in cases of this kind: see also R. v. M.(B.) (1998), 1998 CanLII 13326 (ON CA), 130 C.C.C. (3d) 353 (Ont. C.A.). Accordingly, careful scrutiny must be paid to the evidence: see R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.). In that regard, number of factors should be kept in mind. witness' difficulty in recollection due to the passage of time must not lead to an "undiscriminating acceptance" of his or her evidence. trier of fact must pay particular attention to serious inconsistencies in the account, as well as to significant inconsistencies between present testimony and prior accounts. Such inconsistencies may disclose unreliability: see, for example, R. v. G.G. (1997), 1997 CanLII 1976 (ON CA), 115 C.C.C. (3d) (Ont. C.A.). There must be rigorous analysis of whatever independent, extrinsic evidence still exists. trier of fact must be aware that an apparently honest, confident or convincing witness may not necessarily be an accurate witness: see R. v. Norman, supra. Nor does an abundance of detail in the recounting of an event necessarily imply an accurate memory. As well, trier must bear in mind the "subtle and not so subtle influences" that may have over time distorted memory. The influences upon the life of witness over the course of many years also make it difficult to fairly assess an apparent lack of motive to fabricate. In this context, the trier must be particularly vigilant to ensure that the burden of proof is not shifted to the accused. trier of fact must be alive to the fact that passage of time provides more opportunities for collusion or contamination between multiple complainants. This must be kept in mind when assessing the probative value of similar act evidence. 40 Following that review, Minden J. concluded, at para. 15: Finally, in the overall assessment of the evidence, there is special need to self‑instruct on the frailties of evidence concerning events from the distant past. Trials concerning distant events may call for direction to proceed cautiously before acting on unconfirmed evidence, even in case in which the particular circumstances do not otherwise mandate special warning. In the application of the reasonable doubt standard, trier of fact must be especially mindful of the absence of evidence that might have been available had the matter been prosecuted at an earlier date. 41 agree. The idea that trial judges should consider the "need to self‑instruct on the frailties of evidence concerning events from the distant past" is sensible one for all of the reasons summarized in McGrath. Each case will depend upon its own circumstances, and do not mean to suggest that some type of formal instruction need necessarily be given. Where, however as here, and in this type of case generally there are objective reasons to scrutinize carefully the reliability of witness whose testimony is central to the proof of guilt, the trial judge's reasons should demonstrate that he or she is alert to the frailties of, and the risks associated with, such evidence, and to the need to address it with that careful scrutiny. [45] Around that same time, the doctrine of recent complaint was also extinguished, [which only allowed evidence of sexual complaint to be admissible if made: 1. at the first reasonable opportunity; 2. without questions of the leading, inducing or intimidating character or suggesting the guilt of the accused, and 3. In relation only to the alleged offence and nothing else: v. Creemer and Cormier 1967 CanLII 711 (NS CA), [1968] CCC 14 (NSCA)]. [46] In contrast, the modern principles regarding behaviour of sexual offence victims have rejected stereotypical presumptions about how victims will react to such offences whether that be at the time of the offence itself [by for example resisting or screaming out, etc.] or thereafter, particularly as to when and under what circumstances they disclose the allegations. [47] In v. DD 2000 SCC 43 (CanLII), Justice Major for the Majority put the issue in that case as follows: This appeal raises the question of whether expert evidence may be admitted to inform the jury that children who have suffered sexual abuse respond in different ways with respect to disclosing the abuse. The expert here did not interview the child, so his evidence was not specific to this complainant, but was general explanation applicable to all children. [48] Justice Major continued on: In my view, the content of the expert evidence admitted in this case was not unique or scientifically puzzling, but was rather the proper subject for simple jury instruction. This being the case, its admission was not necessary. Distilling the probative elements of Dr. Marshall’s testimony from its superfluous and prejudicial elements, one bald statement of principle emerges. In diagnosing cases of child sexual abuse, the timing of the disclosure, standing alone, signifies nothing. Not all victims of child sexual abuse will disclose the abuse immediately. It depends upon the circumstances of the particular victim find surprising the suggestion that Canadian jury or judge alone would be incapable of understanding the simple fact. Paras. 58 59. [Emphasis added] [49] Furthermore, in relation to the discredited common law doctrine of recent complaint, he stated: Application of the mistake reflected in the early common law now constitutes reversible error. See v. RW 1992 CanLII 56 (SCC), [1992] SCR 122 per McLachlin, J. [as she then was] at page 136: Finally, the Court of Appeal relied on the fact that neither of the older children was "aware or concerned that anything untoward occurred which is really the best test of the quality of the acts." This reference reveals reliance on the stereotypical but suspect view that the victims of sexual aggression are likely to report the acts, stereotype which found expression in the now discounted doctrine of recent complaint. In fact, the literature suggests the converse may be true; victims of abuse often in fact do not disclose it, and if they do, it may not be until substantial length of time has passed. The significance of the complainant’s failure to make timely complaint must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons [particularly children] react to acts of sexual abuse [citations omitted]. Para. 63. [Emphasis added] [50] Notably he continued to expand on this theme and stated: trial judge should recognize and so instructed jury that there is no inviolable rule on how people who are the victims of trauma like sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or lack of understanding and knowledge. In assessing the credibility of complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of particular case. delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant. Para. 65. [Emphasis added] [51] Nevertheless, in v. RGB 2012 MBCA 17 (CanLII), that court reminded triers of fact that having rejected previous stereotypical presumptions about sexual offence victims, we must be careful not replace them with an unreasoned acceptance of new form of stereotypical presumptions [for example that one should expect non-disclosure from true victim and that that standing alone should therefore enhance their credibility see paras. [52] Ultimately the non-disclosure of sexual abuse offences should be neutral factor standing on its own, unless in the circumstances of any particular case it is prompted to relevance by other evidence e.g. See also the comments of O’Connor, ACJO in v. LCT 2012 ONCA 116 (CanLII) at para. 96. [53] In many cases involving young persons alleging sexual offences against person in authority or position of trust, there will be evidence available regarding certain behaviours of the young person that may be relevant to, when and where the allegations may have taken place, and consistent with the truthfulness of the allegations. [54] An example of this is found in v. JHS 2007 NSCA 12 (CanLII) where our Court of Appeal was faced with that issue among others. JHS was convicted by jury on charge of sexual assault. The victim was the stepdaughter of JHS. She had testified that JHS had sexually assaulted her over number of years until she was in her early teens. Her mother and sister also lived with JHS. There was no evidence before the jury of any improper behaviour between JHS and his stepdaughter. In the course of her evidence, the stepdaughter testified that her behaviour changed, that she was out of control, and that she started cutting herself. The mother testified that she discovered her daughter at age or 10 cutting herself and gave evidence as to her behavioural changes, including breaking into houses and rebelling at everything. JHS argued in his evidence that it was only later that the stepdaughter really got out of control and started to harm herself and that she only alleged sexual assault after she was told she would be sent to Catholic school. [55] Justices Oland and Fichaud overturned the conviction on the basis that the trial judge erred by failing to properly instruct the jury as to the test set out in v. DW (1991) 1991 CanLII 93 (SCC), 63 CCC (3d) 397 (SCC). Justice Saunders in dissent disagreed, but also went on to consider the other alleged errors argued by JHS. [56] At the appeal, JHS argued that the evidence of “bad behviour” of the victim introduced by the Crown at trial was inadmissible, or that the trial judge failed to give limiting instruction to the jury as to the use to be made of it. Justice Saunders did not find the evidence to be inadmissible or that the judge erred in not providing limiting instruction. He observed that JHS was particularly objecting to the evidence presented at trial of the complainant cutting herself. JHS argued that such evidence is “self-serving” and “offends the rule against oath helping”, and was highly prejudicial and ought to have been rejected for that reason as well. Lastly, JHS contended that limiting instruction was necessary once the evidence was admitted para. 39. [57] Justice Saunders rejected each of these submissions, but what is most significant is his drawing of distinction between evidence that is “oath helping”, and evidence that is “corroboration”. He pointed out: 41 There is difference between evidence that would be barred because it is introduced solely for the purpose of proving the truthfulness of the witness (oath‑helping) and evidence that is introduced to lend credence to the witness' statement (corroboration). See, for example, R. v. B.(F.F.), 1993 CanLII 167 (SCC), [1993] S.C.R. 697 at para. 70; R. v. B.(R.H.), 1994 CanLII 127 (SCC), [1994] S.C.R. 656 at para. 28. As noted in McWilliams, supra at 11:20.50.10: The prohibition against oath‑helping evidence is not absolute. The rule against oath‑helping prohibits the admission of evidence whose sole purpose is to bolster witness's general credibility; however, evidence about specific "feature of the witness's behaviour or testimony" may be admissible. (Citations omitted) 44 The prohibition against oath‑helping arises out of concern that the triers of fact must not subjugate their ultimate responsibility in deciding whether witnesses are providing reliable testimony, to the experience or opinions of experts, or lay persons, as to whether those witnesses are being truthful. In R. v. B.(F.F.), supra, Iacobucci, J. speaking for the majority on this point, referred to the rule against oath‑helping as follows: 70 ... The rule against oath‑helping prohibits party from presenting evidence solely for the purpose of bolstering witness' credibility before that witness' credibility is attacked. This type of evidence is of the sort that would tend to prove the truthfulness of the witness, rather than the truth of the witness' statements. It includes psychiatric evidence that the witness is likely to tell the truth in court (see, e.g., R. v. Kyselka (1962), 1962 CanLII 596 (ON CA), 133 C.C.C. 103 (Ont. C.A.)), evidence of good character called solely to illustrate that witness is likely telling the truth (see, e.g., R. v. Clarke (1981), 1981 ABCA 222 (CanLII), 63 C.C.C. (2d) 224 (Alta. C.A.)) and polygraph evidence (see, e.g., R. v. Béland, 1987 CanLII 27 (SCC), [1987] S.C.R. 398). ... 53 In summary, there is no exclusionary rule that would disallow evidence describing the bad behaviour or character of the complainant, similar to that barring disreputable character evidence against an accused. Because there is no rule excluding the complainant's own evidence about her conduct, the test for admissibility will depend on relevance, and weighing probative value against prejudicial effect. [58] On appeal, the Supreme Court of Canada restored the conviction, on the basis of the only issue argued before them that is whether the instruction to the jury regarding the v. DW was correct v. JHS 2008 SCC 30 (CanLII). [59] In the case at Bar, there was evidence that SG had marks on her neck around the time of her disclosure of these allegations, which could be seen to be consistent with self-inflicted cutting. The Crown did not request the Court to take note of these marks in its argument, and there were no questions asked of SG by the Crown or the Defence about them, other than to explain why SG may have been taken to the IWK Hospital. find that the evidence of marks on her neck is neutral evidence and has no probative value, as corroboration of SG’s allegations, or otherwise. [60] The sentiment in these cases serves as sober reminder that each case is unique, and requires its own unique calibration of the concerns evoked above regarding proper, reasoned and fair assessment of the evidence of children as well as adults describing events that allegedly occurred while they were children. [61] Along the spectrum of circumstances, regarding the age of the complainant at the time of the offence(s) in relation to the time of disclosure and trial, the tension between providing an accused with fair trial and the boundaries of the so-called “search for the truth” process can be taut. [62] In the case at Bar, there are elements of these concerns and will take them into account and calibrate them to the circumstances of this case. [63] In the case at Bar, also heard Crown evidence regarding its position that Mr. H. had an “ongoing sexual interest” in SG. This evidence came only from SG. [64] Since Mr. H. is self-represented, and not legally trained, it falls to the court to ensure that he has fair trial process. As general statement, the Crown is precluded from presenting evidence that suggests an accused is of “bad character”. Such evidence is viewed as having no probative value except possibly to show disposition or propensity on the part of the accused to commit crime in general, or specifically the same as the one alleged against the accused [in the nature of “similar act evidence”] see the comments of Fichaud, JA in v. CJ 2011 NSCA 77 (CanLII). [65] In the case at Bar, the Crown has argued that the evidence of Mr. H.’s “ongoing sexual interest” in SG relates to the same time period as covered by the four count Indictment; and is directly relevant to the charges against Mr. H., as that evidence is not tendered to show general propensity on his part to commit crimes (generally or specifically), but rather are relevant to show that throughout the period in question Mr. H. created sexualized environment in an effort to enable himself to establish sexual relationship with SG. [66] As general statement, accept that such evidence can be admissible, and in this case find it admissible as it is relevant; moreover its probative value is not outweighed by any prejudice occasioned by its admissibility to Mr. H.’s fair trial rights. Regarding the specific instances relied upon by the Crown in this case, find that in the circumstances of this case, the evidence of the web camera in the bathroom, and the evidence of the shower curtain rod collapsing after Mr. H. came into the bathroom unexpectedly while SG was showering, to be of slight probative value and significantly outweighed by any prejudice to his fair trial rights. Therefore, those incidents will not affect my assessment of the evidence regarding whether there is proof beyond reasonable doubt that Mr. H. committed the offences alleged. The Evidence of SG [67] The evidence of SG is determinative in this case. If conclude that believe her evidence regarding the allegations beyond reasonable doubt after considering all the evidence, Mr. H. must be found guilty. [68] Regarding the attitude and demeanor of SG, found she gave her evidence in manner which conclude demonstrates that she was: aware of the seriousness of the proceedings and responded accordingly; not belligerent or evasive in her answers, admitting when she could not remember details, and when she was faced with inconsistencies between her testimony and prior statements [police video taped statement or preliminary inquiry transcript] she accepted that she may have been inconsistent; however throughout her evidence she struck me as doing her best to be truthful and accurate. noted that she became upset and tearful on number of occasions, especially when questioning focussed on the actual incidents of sexual behaviour in issue. She at no point in her evidence, struck me as an individual who had “an axe to grind” or was attempting to portray Mr. H. in consistently bad light. [69] For example: i) When she was confronted at trial with her preliminary inquiry transcript evidence where appears: “Question at some point, think... does half-hour sound right?” She had responded: “May be bit longer.” [Page 168, lines 11], in relation to the incident of Mr. H. rubbing her breast at Street while she was playing cards on the computer she affirmed that that was her answer: “Yes”, without any attempt at elaboration; ii) regarding the flashing of Mr. H.’s penis, she was asked in cross-examination whether at trial was the first time she had mentioned such incidents, to which she responded: “Yes” [thereafter Defence counsel clarified that in her police videotaped statement at p. 14, lines 12 19 she had previously mentioned it before when she stated that he had done it “once”]; iii) she similarly readily accepted that she had never mentioned the “shower rod curtain incident” before her trial evidence; nor that she had mentioned the awakening on the couch to the feeling of being touched between her legs with Mr. H. kneeling in front of her. Notably however, she did give explanations as to why those incidents came to her mind between her testimony on one day and her testimony on the next day. She freely admitted that she had spoken to her friend N. generally, and when N. asked her whether she was comfortable with staying at her house, SG said that she was not, as she did not trust any older men, and she told N. about this incident for that reason. When asked whether by talking with her in this fashion she was violating the direction from the Court to not discuss her evidence, she was adamant that she did not think it was her “evidence” since she had not yet mentioned it on the stand [I accept her explanation as truthful]; iv) although during cross examination she accepted that in direct examination she could not remember what Mr. H. said to her when he had dropped his pants down to his ankles, when it was later put to her in cross-examination that she had said in her police statement, Mr. H. told her to “just touch it”; and in her preliminary inquiry transcript that she could not remember what Mr. H. said whereas in her testimony she stated that he said: “If you don’t take them off, will”; she responded in her cross examination that: “I now remember that”; v) she noted in her re-direct examination that she did not read the entire preliminary inquiry transcript or police statement in their entirety because “I know what happened”. She acknowledged that the Crown Attorney and police officer asked her to read them both, and that she told them she would. She pointed out that at the time of her police statement she “wasn’t comfortable” regarding having to disclose such embarrassing incidents to strangers. vi) SG was on the witness stand for lengthy time, and as with any witness, frustration creeps in on such situations. SG noted she was missing time from school because of her testifying, and no doubt felt it unfair that after having disclosed these allegations April 26, 2009; having provided videotaped police statement May 7, 2009; having testified at the preliminary inquiry in March 2011; she was now being subjected to extensive cross examination. keep in mind her age, and the nature of these allegations, and that they are made against someone who she considered to be an “uncle”, and that thereby the family has been fractured. In my view, although she at times was frustrated, and at times was unable to recall precisely, and at times was shown to be inconsistent as between her testimony, police statement and preliminary inquiry transcript, on the whole, her demeanor in the broad sense was consistent with a young person doing their best to be truthful and accurate in circumstances that are fairly described as intimidating, embarrassing, and which involve the examination of a complainant’s very personal information. [70] As to the external consistency of SG’s evidence, or the extent to which it is consistent with the evidence accepted by me of other witnesses, note: i) Her description of the places she went to school, the places she lived with her family, and her father lived with Mr. H.’s family are generally consistent with the evidence of other witnesses; ii) her description of the sequence of disclosure by her to her first boyfriend K., then to her guidance counsellor, Ms. R., as well as the circumstances of the disclosure are consistent as between herself and K. C. J. R.; iii) her reference to the pool was confirmed by A. G. who testified it was only in place for one summer and then only had fence around for the last month it was in place at Street; iv) her evidence regarding the sleeping arrangements was consistent with that of A. G. - both testified that SG slept with A. and in exceptional circumstances SG slept in her dad’s room at all material times when SG and her brother were staying overnight at their dad’s place / Mr. H.’s residence. A. G. testified that her mother had rule that noone was allowed to sleep on the couches. Consistent with this, SG testified she only once recalled sleeping on the couch at C. H.’s residence, and at that location she woke up to feeling of being touched with him kneeling before her; v) her evidence regarding the insistence of her mother that she and her brother spend weekends at their father’s residence, was also confirmed by the other witnesses who testified; vi) her evidence that she was rarely left in situation where she was completely alone with C. H., is consistent with the evidence of other witnesses that the household was generally always full of people coming and going; vii) her evidence of C. H. tickling her is consistent with A. G.’s evidence that “we were all tickled” viii) SG testified that when at C. H.’s residence visiting her father and staying overnight, if she took shower there, she would ask A. to come into the shower with her to keep her company. A. G., in her testimony, conceded that they spent time in the bathroom together while each of the other was showering. [71] Regarding the internal consistency of SG’s testimony that is whether the evidence changes while the witness is on the witness stand, note: i) earlier observed that in contrast to her police statement, preliminary inquiry transcript [she first made mention in direct examination of the webcam incident] and her initial direct examination at trial, after day of testimony, the next day when she testified SG had added incidents such as the “shower curtain rod incident”, and the waking while on the couch to the feeling of being touched between her legs incident; ii) during her testimony she did make adjustments to her testimony when confronted with her police statement and preliminary inquiry transcript review of her cross examination in particular however reveal no major inconsistencies across her evidence That is, no major inconsistencies exist between her testimony and her police statement/preliminary inquiry transcript. bear in mind that she did not read them in their entirety, only skimming them, as she claimed “I know what happened”, and that she did not view more than “a little part of” the videotaped statement, which videotaping she testified made her feel “uncomfortable”. [72] I conclude that her testimony was inconsistent with her previous statements only in minor degrees, whereas her testimony contained many and varied details that lend credence to its internal consistency overall: i) During the “P. the dog incident”, she noted that when she had her back against the wall, Mr. H.’s voice was “agitated like he was in hurry” and “trying to calm me down”. She stated that he gave her hug and told her nothing would happen anymore. In cross examination she indicated that A. and D. came back [about 10 minutes later] and they brought home; ii) during the struggle between her and Mr. H. at Street, while not directly relevant to proof of these charges, in her testimony SG gave details such as: when Mr. H. came to her upstairs apartment he was wearing robe with no belt, boxers on and no shirt; she was alone and near the big window from which you “could see car lights really well” and that she received call from her father who was calling from work; iii) she testified that after the disclosures she had to put one of her cats [“S.”] down, and that A. called her one night to say she was sorry about what had happened to the cat; iv) similarly while not directly relevant to proof of these charges, in her testimony SG gave details about the webcam incident. Moreover she claimed that C. C. found the camera, showed her father, and that her brother J. also saw the tv monitor, and that A. saw it as well, and she would expect her to remember it. [73] bear in mind the age of SG at the times these incidents occurred, and that because of her frequency in the households (as they changed over time) it would be difficult for her to recall in detail much about many of the incidents. In fact, in her direct evidence when asked about whether there were other incidents of sexual nature that she recalls, she responded: “I do not want to take guess at them in case that is not exactly what happened”... and “the ones described they happened I’m sure”. [74] On the whole I find her evidence to be internally consistent as to matters that relate to the core allegations in dispute. [75] As to whether SG has motive to lie or mislead the court, note the following: i) SG testified that she conducted herself throughout the time period of the allegations in way that would not give the appearance that anything was wrong; the evidence of other witnesses is consistent that this is the impression she gave, until her mother became alarmed when she turned approximately 13 to 14 years of age [approximately 2007] and became increasingly resistant in the middle of the week to going to visit her father during the weekends. As SG put it in cross examination: “What was going to say?”; and in re-direct: “I did not plan for any of this to come out”; in cross examination: “I did not want anyone to know what happened”; in relation to why she kept going back and did not tell any of D., A., her mother, and her close school friends: “I thought about telling D. but it is embarrassing and hard to say and talk about”; “I did not want people to think anything was wrong wanted to continue to see dad”; “I did not know if it would be [seen as] my fault for not saying it was going on for so long”; “[N. and J.] they’re my best friends did not want them to judge me or stop talking to me”; “[Mom and I] did not talk about stuff like that usually would talk to A. about that kind of stuff”; “[why finally talk to the police?] did not want to, but knew it was the right thing to do” [after the garbage incident couple of months earlier] “I had nightmares and it got too much to handle”; ii) the Defence position herein is that SG made up these allegations at the time K., her boyfriend was breaking up with her and she thought this was way that he would get back with her; thereafter the Defence suggests that she couldn’t go back on her initial lie and just kept lying up to and including the trial. The Defence argues that SG discussed this matter with N. between her appearances on the witness stand in direct examination, in an effort to fabricate further evidence against Mr. H.. Mr. H.’s daughter, A. G., testified that in her opinion, she felt SG was doing this because Mr. H.’s family had discussed moving to where SG’s father would have not have place to stay (and SG was aware of this), and therefore if SG made the allegations, SG’s father would likely come to live with her and her mother; iii) the Crown argued that there was no convincing evidence that SG had motive to lie. In fact when the Defence put to her that “you would do anything to keep him [K.]...” SG responded very adamantly: “Nothing like this... would not use this...”. When Defence put to her “You did not want all of this you told K. it just got out of control?” SG responded: “I knew this would happen... did not think it would take this long”. [76] After examining all the evidence, I conclude that SG had no motive to lie. She had no motive to lie initially, and therefore had no motive to lie during her trial testimony. Her testimony displayed no attempts to exaggerate, or any tendency to deliberately and purposefully cast Mr. H. in bad light. The reality is that the making of these allegations, and SG would have been aware of this, caused her father to have to move residences again, and to an uncertain address which may not have been to her liking; fractured the family that SG had believed she had to that point - as she believed D. G. was her real father, and that therefore Mr. H. was her “uncle”; moreover the “like sisters” relationship between her and A. would very likely end; and her father would likely be estranged from his sister, D. G., common law partner of Mr. H.. [77] recognize that the passage of time before an allegation is made may require me to scrutinize the evidence of the complainant carefully to ensure the complainant’s evidence is reliable. As noted earlier, am satisfied that as to the core allegations here, SG’s evidence is reliable. [78] In conclusion, as to the sense of the evidence of SG, and what experience and common sense when applied to that testimony suggest, and being aware that may accept all, some, or none of the evidence of any witness, am satisfied that SG’s evidence has what is referred to as the “ring of truth” about it in all respects; that is am satisfied beyond reasonable doubt that SG’s testimony is credible and trustworthy as to the core allegations here, and that the essential elements of the offences for which will enter convictions are proved beyond reasonable doubt. [79] Having said that, note that only came to that conclusion after an examination of all the evidence, including that of A. G.. She testified as the only Defence witness, and find her evidence, alone or in combination with all the evidence in the trial that do accept does not raise reasonable doubt in my mind regarding the offences charged. will next examine her evidence, and why reject some of it. [80] A. G. stated that she “volunteered” to testify for her father. When asked whether she knew what the allegations were since there was an exclusion of witnesses order, she stated: “I overheard I’m nosy... read her statement at home my dad and the lawyer said it was okay... I’m not sure if read the preliminary inquiry transcript”. She concluded that as to what was alleged she knew “the main things”. [81] Regarding the manner of her answering questions, note that she was somewhat strident in her (direct especially) examination, which interpret as an attempt to favorably present her father’s position. For example: i) When she was asked whether she and SG showered together one after another in the same bathroom, she answered that they did, and that they used the locks on the doors “all the time”; when asked the simple question of “Did D. ever talk to you kids?”, she unhesitatingly responded that “D. talked to us we could tell her if we were abused she had been abused herself by her dad [C. G.]” and that D. told this to A., her two brothers, SG and her brother. Moreover, they were “continuously told” that if anyone touched them in any way, not just sexual way, that they did not like, they should feel free to come to talk to her. In cross examination she elaborated that, “Well that’s all she ever talked about”; ii) similarly when she was asked in direct whether she had ever seen Mr. H. have physical contact with SG, she responded: “No” confirming that she included in that reference Street through to and including Crescent. In cross examination however, she readily conceded: “We were all tickled” but followed that up by asking “What does this have to do with this other men do it too... did not think that was relevant”; iii) when asked whether she had ever seen “anything strange” when SG was visiting there, without elaboration as to what was meant by “strange” in the question, she simply said “no”; iv) when it was suggested to her in cross examination that Mr. H. would sometimes look after the kids, she noted that SG was there pretty well every day of the summer and that “Mom always stayed home during the day”. When pressed about this answer she responded “I never said she was there every day all day long”; v) when asked in cross examination whether Mr. H. was ever left to look after the kids, when SG and her brother were there, she responded: “Well it wasn’t just C. there was other adults in the house”; vi) asked in direct examination whether SG had ever slept on couch in the homes, she answered: “Never”; vii) in direct examination she estimated that D. G.’s father, C. G. [who had molested her mother according to A.] died between 2003 and 2004, yet she suggested that he lived with them at Street until he died. This is very much in contrast to M. G’s evidence that he passed away while D. G. was living with his father at Road and that is why D. G. moved to Road. She also suggested that his wife B. G., was “constantly around”. She also testified that she and SG “did mostly everything together” and shared secrets “all the time”, and “pretty much every night” SG would sleep with her in her bed. [82] As to the external consistency of her evidence, it is not consistent with SG’s mother’s evidence regarding C. G., whose evidence on that point do accept. Her evidence about the pool is generally consistent with that of SG except that A. insisted there would always be adults on supervision, otherwise the gate would be locked to render the pool inaccessible [for the one-month that the fence was around the pool]. [83] As to the internal consistency of her evidence, noted that it did change in some respects from direct to cross examination for example that she never saw physical contact between SG and her father, but later she testified: “We were all tickled” by her father. [84] As to whether A. G. has motive to lie, note: i) Mr. H. is her father, and she appears to be close to him as he is the provider for the family. While not compelling by itself this is factor to consider. More importantly, she and her baby moved in to live with her father within the last month, and she admitted she was “angry” with SG for making the allegations against her father. In fact, she was so angry that she revealed to SG, against the expressed instructions of SG’s parents, that D. G. was not SG’s biological father. She would also be angry against SG for having split the family. As she put it, she “lost sister and younger brother” because of these allegations; ii although she had access to the police statement and preliminary inquiry transcript of SG to inform her about the “main things” that SG alleged, got the distinct sense that she came to testify in order to convey to the court certain specific information, and that her specific answers to general questions as noted earlier are an example of that. note as well that her perception of why SG would have made up such allegations did not appear to make sense. She suggested that SG made up the allegations so they would cause her father to move in with her mother, and that therefore SG would have the benefit of his financial and perhaps emotional support. SG’s mother and D. G. lived apart in apparent harmony since before 1998. The children’s relationship with D. G. was apparently good throughout all material times herein. Moreover, did not believe her when she insisted that “I wanted her to know then [D. was not her real father] thought it was important for her to know”. It is very clear to me that she was angry at SG and did it to be hurtful and for no other reason. [85] also note that during her cross examination, her answers caused me to question her credibility either in the sense of her honesty or reliability. For example, having been so familiar with SG, she admitted she did not know SG’s birthday. The best she could muster was to say: “I knew she was younger than me”. When she was asked whether they went to the same schools during the period whether A. knew SG, she stated: “I don’t think so”. She was not sure how many grades separated the two of them, although she thought it was one or two years. When asked why she did not know more about SG she stated: “I did not hang with her in junior high we did not hang out... We had totally different group of friends”. In direct examination, she went out of her way to indicate that SG and her brother always wanted to be at their place and spent “every” Christmas and Easter there, and went on vacations with her family. She said that “any time they did not have school” they wanted to be at Mr. H.’s place. She went on to say that SG stated she wanted to live with her father not her mother, when SG was living at Street. However, when asked shortly thereafter whether SG said anything to A. about D. G., A. commented that SG referred to him as “disgusting and gross and rude... that’s basically it”. reject A.’s evidence on these latter two points. [86] When the Crown Attorney asked her when the family moved to Street, she stated she was “too young” to remember. Asked when the family moved to Street and Crescent, she similarly stated she didn’t know. [87] When apply life experience and common sense to the evidence of A. G., in the context of the evidence in this case, found her evidence to be generally unreliable and not credible, with some exceptions which noted earlier in this decision. Her evidence standing on its own, or in combination with the evidence in this case which do accept, does not raise reasonable doubt about the guilt of her father on the offences charged. [88] Mr. H. is presumed innocent until proven guilty on each of the charges before the Court. can accept all, some or none of any witnesses evidence. carefully examined all of the evidence and found SG to be credible. Based on her evidence regarding the core allegations and the essential elements of each of the offences charged herein, I am satisfied beyond a reasonable doubt such that:i) regarding Count #1 and the Crown position on the incidents which could be characterized as sexual assaults, I find Mr. H. guilty [of all those incidents except the “couch incident” for which I have reasonable doubt about whether the essential elements of the offence have been proved based on SG’s evidence, which I accept];ii) regarding Count #2, I find Mr. H. guilty under s. 151 [of all those incidents covered under Count #1 noted above, except the “couch incident”, and the most recent (“garbage bag”) incident which happened after May 1, 2008 at * Crescent];iii) regarding Count #4, I find Mr. H. guilty under s. 151 of the most recent (“garbage bag”) incident which happened at * Crescent after May 1, 2008 and more specifically around early March 2009;iv) regarding Count #3, I find Mr. H. guilty under s. 152 regarding the “ * the dog” incident when he walked into a room with SG present and exposed his penis to her and stated: “if you don’t take your pants off, I will”; and he told her repeatedly to “just touch it”. Regarding the earlier incident at Street when SG was playing computer games and Mr. H. offered her $20 “if would do something to him or let him do something to me...”, the evidence of SG, which accept, though it caused me to seriously consider convicting Mr. H. on that evidence, was not specific enough to allow me to conclude beyond reasonable doubt that Mr. H. had offered her the $20 as an invitation to sexual touching. [89] In summary, I find Mr. H. guilty of the offences contained in all counts. Our Court of Appeal and others have ruled that conditional stay should be imposed by trial courts where convictions for sexual assault and sexual interference arise from the same facts v. SJM 2009 ONCA 244 (CanLII); v. CGF 2003 NSCA 136 (CanLII). Therefore will conditionally stay the convictions under Count #1 i.e. s. 271 of the Criminal Code.
The accused was charged with sexual assault and various other sexual offences with respect to his niece (who had spent weekends and summers with her father, who lived with his sister and the accused) when she was between the ages of 12 to 15. The accused denied the allegations, suggesting that, since the niece had not disclosed any of these matters until she was 17 years old, she had made up generalized allegation against him to stop her boyfriend from breaking up with her and then found it necessary to maintain the lie, tell her friends, her mother and the police and get more specific when pressed for details. He also argued that she was not credible because her testimony in court was inconsistent with that in the preliminary inquiry and although there were numerous persons she could have confided in at the time, she never told anybody about the alleged incidents but kept going back to visit her father. Accused found guilty of all counts. Although she was at times frustrated and unable to recall precisely, the niece's demeanour was consistent with a young person doing her best to be truthful and accurate in intimidating and embarrassing circumstances. Her evidence was both consistent with that of other witnesses and internally consistent and the inconsistencies with her previous statements were minor. The court found she had no motive to lie initially or during her trial testimony and the reality was that by making these allegations, she knew her father would be forced to move and would become estranged from his sister, her family would be fractured and the 'sister'-like relationship she had with the accused's daughter would end.