Crown: J. Smith, Assistant Crown Attorney, Toronto
Defence: Craig Penney, GTA Sex Crimes Lawyer, Toronto
¶ 1 The accused, A.Z., is charged with sexual assault and sexual interference. This is an unusual and challenging case. The accused and the victim are cousins. The accused is about 10 years older than his cousin. The defence admits that A.Z. did sexually assault the victim when she was 4 or 5 years old but argues it ended long before he turned 18 years of age. The prosecution argues that the sexual assaults continued well after that, the victim being in Grade 7 or 8 when the sexual assaults ended.
¶ 2 The charges as particularized relate to the sexual assaults after the accused turned 18 years of age. Further, this Court only has jurisdiction over offences that occurred when the accused was an adult. He is not being tried for offences that he committed as a young person. The core issue is did A.Z. sexually assault his cousin after he turned 18.
¶ 3 Introduction: The accused has admitted to serious and monstrous sexual crimes against his much younger cousin. It is conceded that the victim has been terribly affected by his actions; actions that betrayed the trust between two families, stole the innocence of a young child, and were committed solely for the accused's own perverse sexual gratification. In these circumstances, I have the greatest of sympathies for the victim and her family. Consequently, I must be careful in ensuring that any righteous indignation that I feel towards the accused does not inappropriately color the analysis of the evidence. There is no doubt that A.Z. deserves to be punished severely for his crimes.
¶ 4 The victim is now 17 years of age. In 1999, when she was 4 years old, her family permitted her father's brother, wife, and A.Z., who was 14 years old at the time, to move into their home after they had immigrated to Canada. During the approximate five month period that the two families lived together along with the victim's grandparents, A.Z. repeatedly sexually assaulted the victim. A.Z. has admitted this.
We should not expect them as witnesses to perform in the same manner as adults. This does not mean, however, that we should subject the testimony of children to a lower level of scrutiny for reliability than we would do adults.
¶ 5 A.Z.'s family then moved, first to a basement apartment on S*** Road, then to a townhouse on R*** Drive. A.Z. has denied that he ever sexually assaulted the victim at any time after he and his family moved out of his uncle's house. The victim testified that the assaults continued during family visits or dinners held in each families' homes. They continued, according to the victim, until the accused eventually on his own initiative stopped; this was when she was in middle school, Grade 7 or 8.
¶ 6 Credibility and reliability of the testimony are important issues in this case. I am also sensitive that the victim is testifying in part to events that occurred when she was a mere child. Someone in her situation cannot be expected to have full and specific recall of the assaults. In addition, she is still a young woman who is struggling with the aftermath of the trauma. Her testimony must be given some latitude. Finally, confirmation and corroboration are not legally required. Having said that, the accused's own admissions are significant corroboration of her testimony. At the same time, there is little other evidence confirming what she has testified to. This is often common in cases of sexual assault especially sexual assaults against young children. After a close analysis of the evidence, the lack of confirmation is not necessarily an obstacle to conviction.
¶ 7 Having given careful scrutiny to the evidence, I have come to these conclusions: The Crown has proven beyond a reasonable doubt that A.Z. sexually assaulted the victim while the families were living together. These sexual assaults included acts of full penetration by the accused. The Crown has proven beyond a reasonable doubt that A.Z. continued his sexual assaults on the victim after A.Z. and his family moved out and into the basement apartment on S*** Road. A.Z. likely continued his sexual assaults on the victim after he had turned 18 years of age but there remains a reasonable doubt on this issue. As a result, A.Z. will be acquitted of both charges.
¶ 8 The Evidence of the Accused: The accused testified. He admitted that he committed a number of sexual assaults on his cousin during the five to six months he lived with her family in 1999. However, he denied ever sexually assaulting her once his family moved out.
¶ 9 Credibility of his testimony is a key issue. If believed by me, he must be acquitted despite admitting to a heinous sexual offence.
¶ 10 To begin, there were aspects of his testimony that were credible. For the most part, he did not sugar coat or minimize his deeds or actions. His responses under cross-examination were at times quite candid, responsive, and detailed although his answers painted him in a bad light. He acknowledged knowing his actions were wrong and they were done solely for his own wicked sexual gratification.
¶ 11 However, at the end of the day, I do not accept his testimony that the sexual assaults ended once he moved out of his relatives' home. I do not believe a significant part of his testimony. So significant, it affects his overall credibility. He testified that he committed sexual assaults about 1 to 10 times. However, his evidence evolved where clearly it was not as few as one and there were many times he did not recall. More importantly, the accused claimed that although he put his penis on her vagina, he did not penetrate her. I reject this for the following reasons. In the meeting with the victim's parents, Ms. S., the victim's mother, specifically asked if he had put it in. He answered yes. He understood the question to mean did he penetrate her. I reject any explanation that he was simply due to his remorse being in an agreeable mood. During the meetings, he qualified his answers or denied doing things when he wanted to. He would appreciate that this question was very important to Ms. S. His admission that he did speaks volumes. His denial of this before me is simply not credible. Furthermore, the accused testified that he raped her. On cross, he used a definition of rape as sexual assault with violence. However, he was inconsistent about that since he admitted to rape to others. Further in cross, his answers as to why he did not try to put his penis in her were evasive and were not believable. It seems implausible to me that in the circumstances, he would not even try to have intercourse with the victim. Finally, the victim testified that he did. This is not something that she would be mistaken about. She was never significantly challenged on this. For all these reasons, the accused was not credible on this issue.
¶ 12 In addition, I reject his specific testimony that he did not sexually assault the victim after he moved out. He gives no good reason why he would stop. He testified that the victim did not want to be around him. Given how candidly he admitted he wanted to assault her for his own pleasure, such minor resistance by the victim, given her young age at the time, in my view, would not have stopped the accused from trying to continue having his way with her. I do not find his evidence in this regard credible and I also find this affects his overall credibility.
¶ 13 Thus, I do not accept the evidence of the accused that he stopped sexually assaulting the victim after he moved out.
¶ 14 Statements Made by the Accused: There is the conversation in the car between the victim and her parents on the night she divulged the abuse. The victim testified that in the car she told her mother and father that the accused abused her when they all lived together. Her mother, Ms. S., testified and denied that her daughter ever said this. She testified that she did not know when these assaults occurred. I find that the victim did say the assaults occurred when the families lived together. I cannot give weight to Ms. S.'s testimony on this point given a number of factors. First of all, she was very upset in the car and this aspect of the conversation may have eluded her recollection. Secondly, she is very supportive of her daughter. Ms. S. was a very strong witness under cross-examination and despite vigorous attempts to do so, could not be swayed from her evidence. This very understandable supportive and protective nature of her evidence resulted in some inflexibility in her testimony. Thirdly, she agreed that she later told A.Z. when he came over to the house that evening when A.Z. said it was done with the victim's consent, how she could consent when she was so young, 4 and a half years old. The accused and his father both testified and confirmed that Ms. S. said words to this effect during the conversation. Ms. S. testified that she referred to the age as conjecture. However, it is more likely she said this because at some point she had heard her daughter say it happened when the two families lived together.
¶ 15 The victim's father also testified. He is a quiet soft-spoken man. I have no issue at all about his honesty. He has been much affected by this tragedy. His memory is good but there are some details that he does not recall. He was reluctant but ultimately admitted that in the car his daughter had said the abuse happened a long time ago when the two families lived together. The victim's father testified that he thought she also said it happened after, when they moved to the S*** Road address, but after further cross, he was not sure if she said this in the car or said it later on after counselling. Because he did not tell P.C. Chang in his statement that it also happened after they moved out, I find that his recollection as to whether his daughter also said that in the car, to be unreliable.
¶ 16 The accused's father testified for the defence. He testified that on Halloween, he was called by the victim's mother and father and spoke to them after the disclosure was made. He went home and confronted the accused in the basement. He testified that the accused admitted that he committed the sexual abuse and said it was when they lived together. The accused's father was infuriated and took the accused to his brother's home to apologize that night. When the accused admitted his crime, apologized, and said he did not force the victim, Ms. S. cried that she was a kid of 4 or 5 years of age and how could she know about things like this. The accused wanted to speak to his cousin that night to apologize but after Ms. S. went upstairs, she returned and said her daughter did not want to see him. When the accused was asked how many times it occurred, he replied that he did not remember but it happened during the time he lived at their house. They then left. This version of events was essentially repeated by the accused in his testimony.
¶ 17 There were two meetings between the families. The initial one on October 31st and then the one about a week later. At these meetings, the accused admitted his abuse and apologized. The victim's family were interested in knowing what happened but more interested in being there for their daughter. The accused and his father both testified that the accused said the abuse occurred during the time the families lived together. The victim's parents do not have recollection of this. The tenor of the second meeting was the same according to the witnesses.
¶ 18 Based on the whole of the evidence, I find that the accused during the two meetings did admit to committing the offence. Further, I find that there was no admission by the accused that he committed any sexual assault after he and his family moved out. I accept that the only statements made by the accused during these two conversations were admissions related to sexual assaults having occurred to a time period that he was under 18 years of age. I make this conclusion based upon the above reasons relating to the credibility and reliability of Ms. S. and her husband and the fact that the accused's evidence on this point is corroborated to by his father, both of whom were not undermined in cross-examination on this issue. It also fits the overall picture where both families seemed to be working on the understanding that the abuse occurred when the two families were living together.
¶ 19 The defence relies upon the R. v. Edgar (2010), 260 C.C.C. (3d) 1 (Ont. C.A.) which held that an accused's spontaneous out-of-court statement made upon arrest or when first confronted with an accusation is admissible as an exception to the general rule excluding prior consistent statements as evidence of the reaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and is cross-examined. In this case, the accused's statements to his father when he was first confronted with the accusation were admissible on this basis. I accept that the accused told his father that the abuse took place when the two families lived together.
¶ 20 The issue is not of admissibility but of probative value of both sets of statements; the ones introduced by the Crown and the one introduced by the defence. First of all, they are consistent in that the accused has maintained in these statements that the abuse occurred when the families lived together. It is also consistent with his testimony before me. On the other hand, there is some merit to the Crown's argument. The accused did commit sexual assaults on his cousin and has had a long time to think about what would happen and what he might say if there was ever a disclosure of the abuse by the victim. While I accept that he would not have been aware that the accusation would have been made on Halloween night, he would have appreciated that an allegation may be made at some time. Thus, he could well have prepared a careful response to any accusation. At the same time, I am not prepared to give these statements no weight at all. The accused did not immediately deny committing the assaults. If he had put up significant resistance or made what appeared to be well rehearsed denials or excuses, then I would have acceded to the argument no value should be placed on these statements. However, here, the accused immediately admitted the abuse and was remorseful. His only thought was to apologize. It may well be that he had thought about minimizing his involvement by lying and limiting the time he committed the abuse but he would have helped himself more by simply denying it. While I cannot rule out the Crown position on this, I must say it seems to me that his statements while minimizing his involvement, is also consistent with his defence. Although, I have rejected his testimony that it happened only when they lived together, the consistency of the statements should be given some probative weight to the extent that the accused has always maintained that the abuse occurred when the victim was quite young.
¶ 21 Opportunity to Commit the Offences The victims' father testified that after the accused and his parents moved out that they would visit each other approximately every month or every two months and during the holidays. He testified that the contact was mainly celebration days. As the accused got older, he was sometimes out and sometimes present. At times he would eat and leave with friends. It was the same frequency when they moved to R*** Drive. Ms. S. said that they would spend the holidays together and occasionally other times at both places. Neither of the victim's parents paid much attention to whether the accused and victim spent any time alone together. The accused's father testified that outside of the holidays, the families might have dinner together but no more than 3 times a year. He further testified that many times, at the R*** Drive home, the accused would not be there for dinner or if he was, he would go out afterwards with friends. The accused's father testified that the accused and the victim never spent any time alone together. Given the passage of time and the fact he could not possibly have kept them in view at all times, I do not find this aspect of the accused's father's evidence as credible. The accused testified that they visited each other on holidays and special events. Sometimes he would be at home; other times he would be out.
¶ 22 The defence submits that there was no real opportunity for the accused to sexually assault his cousin after his family moved out in July of 1999. I can accept that there was less opportunity and that the accused would have taken a greater risk of discovery in perpetrating a sexual assault, given the fewer occasions the two families interacted and the physical layout of the homes and nature of the social functions; especially in the cramped S*** Road basement apartment. However, I find that these factors do not rule out the assaults having occurred. The adults were involved in their own affairs and conversations. They would not be paying close attention to their children. Further, the assaults happened in a furtive manner and the victim was not voicing her objection. While it may have been more difficult and there may have been fewer opportunities to do so, I do not believe that these factors rule out opportunity. They are factors to consider but are not definitive.
¶ 23 Evidence of the Victim: The victim was an honest witness. The defence does not contend otherwise. I also find her to be a very courageous young woman.
¶ 24 It is the reliability of her testimony which is challenged. The defence relies heavily on R. v. Norman (1993), 87 C.C.C. (3d) 153 (Ont. C.A.) and argues that it is directly applicable to the case at bar. I find that the defence's reliance is misplaced. Norman is essentially about a trial judge's inadequate reasons and a failure to consider and appreciate important evidence. Mr. Penny argues that the Crown has failed to produce expert evidence explaining the nature of the victim's recall. However, as pointed out in Norman, such expert evidence is sometimes called by the Crown to explain the failure of a complainant to come forward with an allegation of sexual assault that is said to have happened many years prior. Here the Crown did not call such evidence and is not required to do so. The case must be decided on the evidence and not on the basis of expert evidence as to whether a memory is real or false. Further, the facts are far more extreme and complicated in Norman. In that case, the complainant had suffered multiple unrelated sexual assaults at the hands of a number of family members and had not recalled the sexual assault allegedly committed by the accused until some 15 years after intensive therapy. This is a far cry from the facts before me.
¶ 25 In this case, although some of the sexual assaults are historical in the sense that a significant period of time has passed before the allegations arose and that the victim has physically, mentally, and emotionally developed from a young child to that of a teenaged witness, not all the sexual assaults can easily be characterized in this way; at least, not to the same degree. The victim testified at age 17; she disclosed when she was 16. She testified that the last sexual assaults took place when she was in Grade 7 or 8. The last incidents were a year to a year and a half before she disclosed to her friend from school. This friend did not testify.
¶ 26 Nonetheless, Norman is helpful in this regard. Finlayson J.A. cautions that the honesty and the integrity of a witness give little assistance in assessing the reliability of his or her evidence. A careful analysis must be undertaken of the substance of his or her evidence. R. v. H.P.S.,  O.J. No. 748 (C.A.) more recently emphasized the fallibility of memory especially when it came to adult memories of things experienced in childhood.
¶ 27 First of all, contrary to the accused, the victim testified that the abuse did not end when his family moved out. This was credible and reliable to me. The accused's denial does not raise a reasonable doubt in this regard. While the opportunity to commit the crime may have been less at S*** Road, I see no reason why the accused would suddenly stop his assaults. The victim was still very young and the accused would still seek her out for his sexual gratification. While I will outline the factors that concern me, I am convinced that the victim's testimony in the context of the evidence as a whole is both credible and reliable in this regard.
¶ 28 The fundamental question though is when the sexual assaults ended. If they ended before the accused turned 18 years of age, the accused must be acquitted. The accused's father testified that they lived in the S*** Road basement apartment until February of 2003. The accused was 18 years of age when he moved to R*** Drive. The accused himself verified that. Given the victim's birthday, any sexual assault that occurred when she was over 8 years of age would mean the accused was of age. Given the evidence of the accused and his father, any sexual assault taking place in R*** Drive would mean a conviction.
¶ 29 In sorting through the evidence, I find a good guidepost to be R*** Drive. If the evidence has satisfied me beyond a reasonable doubt that any sexual assault took place after the accused moved to R*** Drive, then he would have been over 18 years of age and guilty of the offence. The S*** Road address is more difficult. The accused turned 18 when he was residing there. The victim has no way of pinpointing the time of each sexual assault more specifically. This, of course, is completely understandable. However, this makes it very difficult for me to be sure that any sexual assault that occurred at the S*** Road address was one where the accused was 18.
¶ 30 Mr. Smith ably argues that the victim's testimony is reliable because there are a number of important time stamps on her memory. The event at the store is stamped with the memory of not only the accused ejaculating, but her recall that she was bottomless. The sexual assaults at the R*** Drive home is strikingly accurate and is stamped with her recollection that she was wearing certain clothing when she was in grades 4, 5, and 6. Her recollections of when the assaults stopped are stamped with her memory that it happened in middle school and that she told a friend about it in Grade 8.
¶ 31 I have given careful and, indeed, anxious consideration to all the evidence. I have concluded that I have a reasonable doubt on the issue of whether the accused committed a sexual assault on the victim after he turned 18 years of age. This is so, despite the fact that there are many indicators of reliability of the victim's testimony. I have come to this conclusion for the following reasons.
¶ 32 First of all, I am very aware that disclosure of abuse is not always fulsome and can come out in pieces. Nevertheless, it is a factor that must be considered. I find that during the early days, it was a common understanding that the abuse occurred when the families lived together. I prefer the evidence of the accused and his father to that of the victim's mother and father. The latter come close to admitting this but their recollections are not the best. Their memories may be affected by information later received. Overall, the picture that emerges is that all were of the understanding that the abuse occurred long ago when the families lived together.
¶ 33 This however does not answer the fundamental question of whether the abuse occurred afterwards. In the car, the victim was intoxicated, upset, and overwhelmed. The victim testified that even later she did not disclose it all completely at the beginning because she was working through the abuse herself and she did not want disclose everything initially because she wanted to protect her family, particularly her mother. This is understandable and I accept it. Standing alone, this would not have undermined the reliability of her testimony. Nevertheless, her initial statements are consistent with what the accused said, not just in his testimony, but what he disclosed to his father and the victim's parents. At that point in time, the accused would not have been aware that the victim would not have disclosed all the sexual assaults.
¶ 34 There are other aspects of her testimony that has raised significant questions in my mind that have not been resolved. It is clear to me that the victim is working through the trauma that she has suffered at the hands of the accused. That process is challenging and is one which she has done her best to recall and piece together events. This is not unusual in my opinion when anyone tries to recall events let alone when a victim of sexual abuse tries to do that. It does not undermine the reliability of the victim's memory per se. Yet it is a factor that must be carefully considered given how fallible memory can be in certain circumstances. For instance, the victim initially thought and told the police that the families lived together for years until her mother told her it was only a few months. According to the victim, the sexual abuse went on for so long and happened so many times, that it kept going on in her head and if felt like it went on forever. Another is her evidence that the sexual assaults occurred every time the families got together at S*** Road. This is unlikely given the layout of the place and the circumstances. Another example is the sexual assault as described by the victim at the BBQ at her home. This may not be entirely accurate since given her description of it, the accused would have been taking an insane risk in getting caught given where the assault is said to have taken place, the number of adults at the BBQ, the location of the washroom, and layout of the ground floor. He could have well committed the sexual assault in a different room or in a way that would have minimized the chances of being caught. This is not to say that something did not happen; rather, it may not be exactly as the victim has recalled. The overall confusion is understandable given how long ago the initial phases of the abuse took place and how young the victim was. At the same time, this again speaks to the difficulty with memory in general and also the memory of the victim. To her, it could well be that the she has come to believe that the incidents of abuse spanned years although it only took place when she was quite young during a shorter interval of time. To her the abuse was so significant, it happened in her memory each time she was with the accused.
¶ 35 Another difficulty I have with the victim's testimony is her admitted blocking of her memory, the process of which she has gone through to recall all the assaults, and the lack of specificity of when it all ended. To start off, it does make sense to me that when she speaks of the sexual assaults when she was very young, her recollections will come back to her in pieces and with flashbacks. Further, I am not satisfied that there was anything wrong with the nature of the therapy she has received to assist her. To suggest it may have tainted her memory or other influenced her recall, would be speculative. But as the court in Norman counsels, one must still scrutinize her testimony carefully as it is presented in court.
¶ 36 Much of this evidence unfolded under a long and extensive cross-examination. However, it began in examination in chief. When asked whether her memory of these events were better or worse, the victim testified that the memories pretty much come and go. It was because she did not want to remember them and that for so long her brain blocked them away. When she came forward, they all slowly came back.
¶ 37 This theme continued in cross-examination. The victim testified that the memories were always there, that she knew there were more cases than just when the families lived together. The therapy helped her get them out. She denied that the therapy influenced or created the memories. She went to therapy before she went to the police the first time in November at a place called Aisling Discoveries. She also went to therapy before her next statement to the police in April of 2011. She recalled more before her interview in April of 2011; including the incident that took place in the store.
¶ 38 In unblocking these memories, she testified that she knew the scenarios of sexual assault existed in her but she had to piece it together. She repeated on numerous occasions that her memories were mostly blocked and although they were there roughly, she had to piece it together. At one point in cross, she testified that it was the timing that she had to piece together. She agreed that she had flashbacks and clips of past abuse. The sexual abuse had become routine to her, the same scene of abuse. This, she agreed, was one of the reasons it seemed so long that the families lived together. She initially told the police that she did not recall the accused ejaculating but this memory became unblocked. She agreed that with the unblocking more specific incidents came back.
¶ 39 In assessing the entirety of her evidence, I have no doubt that the victim is a truthful witness, trying to be helpful, and the memories are very real to her. However, I am left with a lingering doubt as to how reliable her memories are. It is not just details of assaults that she has unblocked; it also includes actual more incidents of sexual assault. The retrieval of the events has taken time and has come back through a flashback or clips process. Some of those events as noted above strike me as being implausible although they may well be true. Finally, the nature of the sexual abuse and the fact that it occurred so many times, may have meshed so many of them together in her mind. All of this is understandable, but it makes it difficult for me to assess how significantly they have impacted her memories and which memories.
¶ 40 How the victim described these sexual assaults and the process of recalling them seems to also apply to the ones that occurred later on; the ones that I am most concerned with. For the sexual assaults that occurred later, it strikes me that the same process while it may still exist, should not exist to the same degree. We are talking about sexual assaults, when the accused was eighteen and she was eight to twelve or thirteen. She was testifying about this at 17 and first made her allegations at 16 years of age. However, she nonetheless recounts these events in the same broad fashion as her earlier sexual assaults. Aside from the broad statement that it ended while she was in middle school, there were no further specifics but the assaults are described in the same way as her earlier assaults. In cross, she stated that she did accurately recall the incidents at S*** Road and R*** Drive but somewhat. I would have thought that these later assaults would not be subject to the frailty of trying to recall early memories of childhood or after the passage of significant time. But they seem to. It may well be that this is just how she describes it; because of the awful routine nature of the sexual assaults, they have all blurred together in her mind. It may well be that it is due to the trauma that has been visited upon her. On the other hand, it may well be again that the trauma or some other factor has affected the reliability of her memory or account.
¶ 41 In sum, while I agree there are the details and time stamps, as referred to by the Crown that give probative value to her evidence, there remains some features that have concerned me with respect to when the assaults ended.
¶ 42 There is then one other final factor. While I have rejected the accused's testimony, there remains a disquieting plausibility to his account. In essence, the instances of sexual abuse ended when victim and the accused had less opportunity and both became older and more mature. It ended according to the accused because the victim would spend less time with him. It ended according to the victim because the accused simply stopped doing it. It strikes me as probable that this is how the assaults stopped. The victim was becoming older, more mature, and more capable of behaving in a way to avoid the accused. The accused himself was becoming older; perhaps wiser in knowing that the chances of disclosure by the victim increased as she became less a child and more mature. The evidence is also fairly consistent across the board that the families got together less when they moved out. The victim herself testified that they saw each other much less at R*** Drive. There is evidence that I accept that the accused was at times absent for the family dinners or left early. This would be consistent with his older age and more independent social status.
¶ 43 Ruling: Taking these factors together cumulatively, the inconsistent statements of the victim, the issues regarding the reliability of her testimony, and the potential plausibility of the thrust of the defence, I am not certain the accused committed the sexual assaults when he was over 18 years of age. I would find that on a balance of probabilities, he more likely than not did, but this is not sufficient to ground a criminal conviction. The charges are dismissed.