YOUTH JUSTICE Court of Nova Scotia
Citation: R. v. C.M., 2014 NSPC 18
Date: 2014-01-23
Docket: 2554551, 2554552, 2554553, 2554554 Registry: Shubenacadie
Between:
The Queen
v.
C.M.
Restriction on Publication: Pursuant to Section 486.4 of the Criminal Code of Canada, any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way.
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Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
Decision
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Judge: |
The Honourable Judge Timothy Gabriel |
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Heard:
Oral Decision:
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December 12, 2013 and January 23, 2014, in Shubenacadie, Nova Scotia January 23, 2014 |
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Written Release: |
April 25, 2014 |
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Charges: |
Sections 271(1), 151, 152, 153(1) of the Criminal Code of Canada |
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Counsel: |
Jillian Fage, for the Crown Brian Stephens, for the Defence |
By the Court:
Introduction
[1] C.M. is charged that between the dates of May 27, 1987 and February 27, 1989, she committed various offences in relation to K.H. These offences consist of sexual assault, contrary to Section 271(1) of the Criminal Code; touching a person under the age of 14 years with her hands for a sexual purpose, contrary to Section 151; inviting a person under the age of 14 to touch her for a sexual purpose with her hands and mouth, contrary to Section 152; and that she was a person in a position of trust or authority at a time when she touched K.H. with her hands for a sexual purpose, contrary to Section 153(1). A publication ban, pursuant to Section 486.4 was earlier granted and remains in effect.
[2] During the relevant period of time in the Information, C.M., whose date of birth is May […], 1975, was between the ages of 12 and 13 years of age. Although she is now 38 years old, she was tried in the Youth Justice Court for that reason.
B. EVIDENCE
[3] K.H. was the only witness called by the Crown. She is the daughter of D.H. and M.H. The H. family moved to Hants County, Nova Scotia, when the complainant was 18 months old. She was born on February […], 1983. It follows that she was between the ages of four and six years of age when the offences are alleged to have been committed.
[4] Just down the road from the H.’s lived the S. family. Mr. and Mrs. S.’s family was a blended one. Mr. S. had three children of a prior relationship at the time he and S.S. were married. C.S., who is currently 50, T.S., aged 48 and E.S., aged 38. Mrs. S. had one child from a previous relationship at the time of their marriage, that being the accused, C.M. In addition, the S.’s had one child together. This is D.S. who was born in 1982 and is, therefore, one year older than the complainant.
[5] Mr. and Mrs. H. and Mr. and Mrs. S. were good friends. They socialized together and got along well together. The H.’s and S.’s were […] members of the Royal Canadian Legion that serviced the area.
[6] The four adults were heavily involved in getting the Legion set up. After it became a going concern, they continued to patronize the establishment. It became fairly usual for them to get together on Friday nights to play darts and otherwise socialize. A practice developed whereby K.H. would be left by her parents at the S. residence for babysitting.
[7] K.H. said that during the time interval with which we are concerned, it was C.M. that did the babysitting. K.H. testified that C.M. looked after both herself and C.M.’s younger brother, D.S. Her evidence was that, beginning at about the age of three or four, she recollects waking up on multiple occasions to find C.M. performing oral sex upon her. The first few times it happened, she thought she had dreamed the incidents. However, when they escalated to the point where the incidents were taking place before lights out, the complainant knew that she was not dreaming.
[8] K.H. testified that she slept in C.M.’s room on a separate cot that had been placed there for that purpose. The cot was parallel to C.M.’s bed. She said that the incidents of sexual abuse by C.M. occurred at least once per week, and that C.M. looked after her, on average, once or twice per week.
[9] K.H. described incidents which invariably included C.M.’s mouth on her vagina, some of which also included attempts by the accused to have K.H. reciprocate by kissing her breasts, also incidents where she, at C.M.’s request, placed her hand on C.M.’s vagina and digitally penetrated her. K.H. testified that this behaviour only stopped when she reached the age of (approximately) five years, when she first said, “No” in response to the actions in which C.M. was attempting to have her participate.
[10] This refusal took place one night after supper. The two were hanging out in C.M.’s room. D.S. was also there. C.M. is alleged to have abruptly taken her pants off, and asked the complainant to lick her vagina. The complainant responded by saying, “No.” C.M. then took the complainant’s hand and tried to place it on her vagina. K.H. again responded with what she described as a loud “No,” although not loud enough apparently to attract the attention of Mr. and Mrs. S. who were in the living room, because neither responded. The incidents stopped after that time with one (later) exception.
[11] K.H. thereafter recalls sleeping in D.S.’s room on some occasions, sometimes in Mr. and Mrs. S.’s room and sometimes her parents picked her up and brought her home. According to K.H., after the refusal, C.M. was mean to her (which she considered to be C.M.’s way of punishing her), but no further sexual abuse occurred after that incident.
[12] The complainant did advert to a later sexual advance by the accused. This one was alleged to have occurred when K.H. was approximately 12 years of age. It occurred at the S. residence while the complainant, C.M. and her brother D.S. were sitting on the couch in the living room. To orient this incident chronologically, it would have to have occurred in approximately 1995, given the complainant’s age. This would make C.M. about 20 years of age and her brother, D.S., 13 at the time.
[13] K.H. testified that while the three of them were on the couch, C.M. suddenly pulled up her shirt, exposed her breasts and tried to have the complainant kiss them. Again, K.H. said, “No” and that ended it. Nothing in a related vein occurred between them after this.
[14] The complainant testified that when she was six or seven years of age, she told her friend, S., of the abuse by the accused, and another friend, A.S., at the age of nine or ten. She told some other friends, J. and C. R., at the age of 13. The complainant testified that her mother was told when she was 16, and that she told her husband about nine or ten years ago. Neither K.H. or her mother told her father until about five years ago, after she had confronted the accused about the childhood incidents.
[15] The “confrontation” between the complainant and the accused (and I am using K.H.’s word to describe it), occurred when C.M. attempted to add her as a friend on Facebook. The complainant responded by sending C.M. a private message, dated January 21, 2008. This message was entered into evidence as Exhibit 1. To paraphrase it, the complainant advised C.M. that she remembered what had happened, and that she was taking the first step in her recovery process, because C.M. was the source of her trauma. K.H. received a reply from the accused’s counsel, which she characterized as a “gag order.”
[16] K.H. testified that she suffers from depression, anxiety and post traumatic stress disorder. In 2008, the same year in which she confronted the accused, she sought out a doctor because the one she was with was “not going to help her.” She also stopped working later that year. She states that she experiences repeated mental images of C.M. performing oral sex upon her, and of her digital penetration of C.M., and that she has seen these images virtually every day since she was three or four years of age.
[17] On direct, K.H. indicated that what prompted her to go to the police in 2012 was seeing C.M. out and about with her niece, who was about the same age as that of the complainant when the abuse started. On cross, she added that C.M. was observed taking her niece to the same pre-school at which K.H.’s son attends, and that C.M. had also started volunteering at that facility. This was troubling to the complainant.
[18] K.H. contacted the RCMP in September or October of 2012, but did not give her statement until November. She set up one or two appointments prior to that to provide her statement to the police, but did not attend on either occasion.
[19] K.H. also testified that she removed her son from the daycare in October 2012, and did not return him until February, 2013. That notwithstanding, it appears her son was not actually removed from the pre-school until December, 2012. This is evident from an e-mail that she sent to D.S. on December 7th, 2012, at 11:56 a.m., in which she explained to him why she was just then taking that step. She also went to the pre-school with her concerns. She removed her son from that facility when, in her words, they refused to do anything about her concerns, and her efforts to avoid C.M. were to no avail.
[20] There were some other notable points in K.H.’s cross-examination. For example, when (at age five) she said, “No” to C.M. for the first time, the complainant remembers that she began sleeping either in the S.’s parents’ room, or D.S.’s. She cannot recall whose decision that was. Also, when asked what C.M. would do while having the five year old complainant digitally penetrate her, the complainant testified that C.M. was “obviously enjoying herself.” She added that C.M. looked like she was “experiencing sexual stimulation.”
[21] The span of the abuse lasted for about one year. The Complainant was not sure how C.M. began individual episodes. Each episode could last anywhere from a few moments to five minutes. Each consisted of either oral sex, having K.H. kiss the accused’s breasts, digital penetration by K.H. of the accused, or all three. After the episodes, K.H. testified that she would fall asleep. She indicated that normally she would wear underwear to bed, but it was not on during these episodes. She recalls her nightie invariably being still on her, but pushed up. C.M. generally wore a nightgown just like K.H.
[22] In her RCMP statement given to Constable Morrison on November 4, 2012, the Complainant indicated that she wore a nightgown when she went to bed, but during the abuse she was completely naked. K.H. said she didn’t know C.M.’s precise age when the abuse happened. She knew that the accused was older. She thought C.M. was about 12 at the time, and that she, herself, was about four to five years of age.
[23] The Complainant was referred, on cross, to the fact of C.M.’s relatively young age, and asked if it was possible that C.M.’s older step-sister, T.S. was the one who was actually doing the babysitting during the relevant interval. K.H. answered, “I do remember T.S. babysitting at times.” She went on to refer to one specific occasion when she remembered T.S. babysitting. This was the first time that K.H. mentioned T.S. at all.
[24] The Crown closed its case after K.H. testified. The Defence elected to call evidence. D.S., S.S., T.S., and C.M. all testified.
[25] D.S. is 31 years of age, having been born on April […], 1982. C.M. is his sister, (technically his half-sister). He grew up in Hants County, Nova Scotia with his parents, as well as his sisters, T.S. and C.M. He described their residence as a “big one,” single level, with four bedrooms, bath, laundry room, living room, and kitchen. C.M., T.S., himself and his parents each had their own rooms.
[26] Mr. S. described his relationship with the complainant as “best friends.” At another point, he referred to the two of them as “inseparable” during childhood. He testified he has known K.H. for as long as he can remember.
[27] According to D.S., when their respective parents would go out (generally to the Legion), K.H. would be left at his home to be cared for. His step-sister, T.S., did the babysitting. The routine was that the younger children, consisting of himself and K.H., would be put to bed around 7:30-8:00 p.m. K.H. would sleep on a moveable cot in his room. He could not recall what she wore to bed. D.S. indicated that C.M. is 10 years older than himself (actually the difference in their ages is seven years). He is one year older than the Complainant.
[28] C.M. and K.H. appeared (to D.S.) to get along well, allowing for the difference in their ages. He recalls that if he or K.H. did something wrong, C.M. would invariably tell T.S. He had no recollection of anyone but T.S. doing the babysitting while the Complainant was at their home. Generally, K.H. slept over on weekends. He did not recall her sleeping anywhere else except in his room. He testified that he never observed the accused involved in anything of a sexual nature with K.H.
[29] D.S. testified that C.M. moved from their home, because she and her step-father, Mr. S., were not getting along. He recalled that T.S. had moved out before C.M. in order to get married. He thought he was about five when C.M. moved out.
[30] After T.S. moved out, (again according to D.S.) the complainant did not stay over anymore. He testified that K.H.’s parents got mad, because they (in his words) “had lost their babysitter.” This all happened around the time he and K.H. started school. K.H. still came over to play at his house, and he at hers, but he does not recollect her being babysat or staying overnight at the S. residence after T.S. left. His recollection is that if C.M. was with K.H. at any given point in time, he was there too. As he put it, “Wherever K.H. went, I went. Wherever I went, K.H. went.” The only occasions when he recalled C.M. doing any babysitting at all was after she got old enough. He did not recall specifically how old she was. When this occurred, he was positive that she only looked after him since “Mom and Dad would never let her look after anyone else besides me.”
[31] Next, the Court heard from S.S., who is C.M.’s mother. Ms. S. is 62 years of age and has five children. Three are step-children: the aforementioned C.S., who is 50, T.S., who is currently 48, and E.S. who is 38. Her children are the accused, C.M., who was born in 1975 of another relationship (and who is also 38 years old) and D.S., who was born in 1982. Ms. S.’s husband died about five years ago. She has lived in Hants County, Nova Scotia for 38 years, although not presently residing in the same home that the family occupied during the 1980's. That particular house was torn down some time ago.
[32] The home in which the family resided at all relevant times was described by S.S. as 26 feet by 50 feet. It was a one storey building consisting (initially) of four bedrooms, as well as, a front room, kitchen, bathroom and laundry room. After T.S. moved out, Mr. S. knocked down the wall to her room to enlarge the living room.
[33] S.S. testified that she has known the Complainant since she was about 19 months old. Her husband’s best friend was K.H.’s father. When K.H. and her family moved to the area, it would have been in approximately 1984. Ms. S., her husband, T.S., C.M. and D.S. were still living in the S. home at that time. Her oldest step-son, C.S., sometimes visited them and stayed for short intervals on occasion. T.S., C.M., D.S. and she and her husband had their own rooms. When C.S. visited, he slept on the couch.
[34] The practice was that K.H. would be dropped off at the S. residence generally on Friday night, which was when the two couples generally played darts at the Legion. Darts started at 7:00-7:30 p.m. and the four would generally return home by 9:30 or 10:00 p.m. the same evening. If it wasn’t too late when they returned, her parents would then bring K.H. home with them. Otherwise, K.H. would spend the night at the S.’s house, and go home the next day after breakfast.
[35] K.H. would sleep in D.S.’s room on a cot. Mrs. S., too, described the pair as inseparable. They got along like a brother and sister. She estimated that her daughter, C.M., was about six when K.H. began being looked after at their home on occasion.
[36] As with virtually all of the witnesses in this case, Ms. S. estimate of the ages of her children and/or the years when a particular incident occurred was sometimes inaccurate. For example, given the age difference between K.H. and C.M. (eight years), if K.H. was two when she first stayed at the S. residence, the accused must have been 10 years old at the time. So too, Mrs. S. did not know how old her step-daughter, T.S., was when K.H. began being looked after at the S. home. “She (T.S.) was a teenager,” said Mrs. S. “I wouldn’t have let her babysit unless she was.”
[37] C.M. got along with D.S. and K.H., in her mother’s view, although she sometimes tormented the younger ones. At no time did C.M. babysit D.S. and K.H. Ms. S. felt that it was simply inappropriate for a 12 year old to babysit little kids. The most that she would concede was that C.M. might watch them or keep an eye out for them when the three of them were outside playing. Ms. S. testified that T.S. was their babysitter, not only for the purpose of Friday night outings, but for all purposes. T.S. left home around 1987. S.S. did not recall the precise date.
[38] After T.S.’s departure, S.S. only went to darts once in a while and she often just stayed home when she could not find another babysitter. C.M. was too young to babysit when T.S. left. In fact, Ms. S. testified that C.M. might have been allowed to babysit (at most) on occasions over a three week period just prior to the time when she, herself, left home. This was just before her 16th birthday. C.M. left their home, S.S. testified, because she did not get along with her step-father. After leaving home, C.M. did not return to the area until she was in her late 20's.
[39] When T.S. looked after D.S., K.H. and C.M., the complainant would sleep in D.S.’s room on a cot. S.S. did recollect, however, that K.H. slept in the room with herself and her husband on a couple of occasions. She stated, “I didn’t know where K.H. would have slept, if she would have stayed in C.M.’s room.”
[40] After T.S. left the home, the S.’s did not babysit K.H. anymore. Although she confessed to feeling bad for having to say so in front of the Complainant at trial, S.S. testified that she and K.H.’s mother had a tiff after T.S. left. The Complainant’s mother was irked, in Ms. S.’s view, because she no longer had the use of a “free babysitter”. Afterward, the S. and H. families remained friends, but were not as close as they had been.
[41] The third witness called by the Defence was T.S. Her evidence confirmed most of the things her step-mother, S.S., had said. T.S. stated that she was always the one to do the babysitting while she lived at home. She testified that she moved out in 1987. Since her birth date was September […], 1964, she was 23 years of age at that time. Although conceding that she was weak on most dates, she said that she knows her birth date (of course) and she knows the date she was married, which was October […], 1988. She also knew that she had moved from her home in order to live with her husband-to-be, approximately one year prior to their marriage.
[42] T.S. testified that when she looked after K.H., D.S. and C.M., there was a general bedtime routine. D.S. and K.H., being younger, would go to bed first. C.M.’s turn came a half hour to an hour later. All wore pajamas in her recollection. K.H.’s were two piece pajamas. C.M. had absolutely no responsibilities on these occasions.
[43] Most times K.H. was over on a Friday night, although there were occasional Saturdays. Her father and step-mother, as well as, K.H.’s parents, would generally return around 10:30-11:00 p.m. T.S. could not recall an occasion when K.H. spent the entire night. Her parents picked her up when they came back. In a given month, she testified that she looked after K.H. most Fridays, as well as two or three Saturdays. This continued for a period of “six or seven years”, in her view, before she moved out and was married.
[44] T.S. recollected that D.S. and K.H. were always together. C.M. did not interact with them much, in her estimation, perhaps because of the age difference. K.H. slept on the cot in D.S.’s room, but sometimes they changed it up and he would sleep on the cot to give K.H. a turn in the bed. The only time the cot was in C.M.’s room was if she had a friend over.
[45] T.S. indicated that her practice was to sit in the living room after the children went to bed, and watch the hallway. Taken literally, her evidence suggested that she continually monitored the hallway with unceasing vigilance after the children were in bed. I am satisfied that what she meant, in the context in which she said it, was that she positioned herself in the living room, so that she could keep an eye on the hallway from time to time, while watching TV or doing whatever else she was engaged in that evening. She recollected that the children were all good, generally speaking. She couldn’t recall them ever giving her any trouble.
[46] C.M. was the final Defence witness. She was born on May […], 1975. Her mother, S.S., married R.S. when she was four years of age, and Ms. S. and the accused moved to […] to reside with Mr. S. in his household. C.M. emphatically denied any of the events alleged by the complainant. In her words, “I never done anything like that. This blows my mind.” She points out (specifically with respect to the incident alleged to have occurred in the S.’s living room when the K.H. was about 12) that she would have been “long gone” from the S. household by that time. Given the difference in their respective ages, (eight years), C.M. would have been 20 years old at the time of that alleged incident. This was a time when (she testified) that she was residing elsewhere with her common-law husband.
[47] The accused testified that as a child, she was never interested in babysitting D.S. and K.H., or anyone else for that matter, and she never did. Just prior to moving out (at age 15) she had tried to babysit D.S. on one occasion, just to prove to her step-father that she could do it. Things didn’t turn out so well. D.S. ended up hurting himself on that occasion, and she ended up moving out not very long thereafter. She did not resume a relationship with her immediate family, or even return to the area, until her own son was six years old and starting school, a time when the accused was in her late 20's.
[48] She described K.H.’s parents and hers as best friends, and stated that she was eight or nine years of age when K.H. first came to the S. residence. K.H. would generally be dropped off around suppertime on darts nights, and she recalls that the Complainant and D.S. would frequently play in the living room or watch a movie until bedtime.
[49] The accused’s bedroom and D.S.’s were across the hall facing one another. K.H. slept in DS.’s room. The two switched between the bed and spare cot that was there. The accused specifically recalled one occasion when the Complainant spent the night in her mother and step-father’s room, because her own parents planned on picking her up early. She has no idea what K.H. customarily wore to bed, and as she put it, “I’m sure I wouldn’t remember.”
[50] C.M. testified that she moved out when she was about 15. She confirmed that she did so because she did not get along with R.S., her step-father. She stated that she was terrified of him. She moved in with her boyfriend at the time, and the two lived in […] for six months before moving to […] where they resided with her grandfather. In 2003, her son was six and starting school. She and her son’s father decided to move back to the area. She reconciled with her immediate family and they have erected a house in the area.
[51] The foregoing encompasses the evidence, in broad strokes. Although I may not have mentioned all of it exhaustively, I have carefully considered all of it in coming to my conclusions.
C. ANALYSIS - Similar Fact Evidence
[52] At the outset, some consideration must be given to the incident which K.H. alleges occurred when she was 12 in the S. living room. The complainant turned 12 in 1995. Even allowing for some liberality in the temporal location of this incident, it is clear that it happened outside of the time frame specified in the counts. As such, even if I were prepared to accept that it occurred as alleged, it could not form the basis of a conviction, nor is it admissible to prove the incidents that are alleged to have occurred that are encompassed within the counts. This is, nonetheless, evidence to which a Crown witness testified. Although Defence counsel did not object to its reception, the point remains that it is similar fact evidence. That is to say, it deals with a fact scenario similar in nature to those acts which are alleged to have occurred some years previously between C.M. and the Complainant.
[53] Is this evidence properly before the Court, and if so, on what basis? Justice Beveridge, in R. v. Farler, [2013] NSCA 13, at paragraphs 34 and 35, recently had occasion to summarize the law in this regard:
34. The appellant is quite correct in saying that similar fact evidence is presumptively inadmissable unless the Crown satisfies the trial judge that in the context of the case, the probative value of the evidence in relation to the identified issues outweighs its potential prejudice. The appellant is also correct that evidence of criminally or morally repugnant acts falling outside a count in an indictment is not admissible to prove the charges falling within the counts. That is, unless of course, a judge correctly determines that the evidence is admissible for a legitimate purpose or the probative value outweighs its prejudicial effect.
35. The appellant was represented at trial by counsel. No objection was taken by any of the evidence led by the Crown. The Crown did not ask the trial Judge to consider evidence falling outside any count as evidence with respect to any of the charges. The only comment by the trial judge about the potential use of evidence from one count to another was, “I remind myself that I cannot apply the evidence of one count to prove another.”
[54] There is (to repeat) no basis upon which to consider this evidence as tending to prove the incidents falling within the time period set out in the counts. Such testimony may be considered, however, as one of the bases upon which an assessment of the credibility or reliability of the witnesses themselves may be based. As such, it merely informs that determination and none other.
D. THE LAW AND ANALYSIS
[55] Against the foregoing evidentiary background, it is appropriate to emphasize that the accused is entitled to the presumption of innocence throughout. C.M. is entitled to an acquittal if the Crown fails to prove her guilt beyond a reasonable doubt. This is no trivial burden. It is a significant onus which the Crown bears in virtually every case, with respect to every charge.
[56] On the topic of reasonable doubt, the principles to be distilled from the Supreme Court of Canada decision in R. v. Lifchus [1997], 3 SCR 32 are as follows:
1. A reasonable doubt is not based upon sympathy or prejudice. Rather it is based upon reason and common sense.
2. It is logically connected to the evidence or absence of evidence.
3. It does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt.
4. More is required than proof that the accused is probably guilty; if he is probably guilty, I must acquit.
5. Proof beyond a reasonable doubt is closer to absolute certainty than it is to probable guilt.
[57] In applying the concept of the presumption of innocence (and the parallel concept of reasonable doubt) I do not engage in a quest to find out the truth of what happened. Rather, I must examine that portion of the evidence which I accept, and ask myself whether, on the basis of that evidence, I am left in any reasonable doubt of the guilt of the accused as it relates to any or all of the charges.
[58] In this case, the Defence has chosen to call evidence. Therefore, the “lens” through which I assess or view the evidence in this proceeding is again provided by the Supreme Court of Canada, this time in the well known case of R. v. W.D. [1991] 1 SCR 742. I am guided, in particular, by paragraph 27 of W.D., which states:
Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[59] There is appellate authority to the effect that W.D.(Supra) requires consideration not only of the accused’s testimony, but that of both the accused and any other Defence evidence during the first and second stages of the W.D. test. I have proceeded to assess the evidence in this case in this fashion. In so doing, I remind myself that I am not to simply choose whether I prefer the Crown’s evidence over that of the Defence. The burden of proof remains firmly upon the Crown and (as I have said previously), it never shifts.
[60] Another point with respect to which care must be taken concerns the assessment of credibility particularly when the trier of fact is dealing with adult witnesses describing or testifying in relation to offences or incidents that occurred during their childhood.
[61] Justice McLachlin in R. v. R.W., [1992]2 SCR 122 noted at paragraph 26:
It is neither desirable nor possible to state hard and fast rules as to when a 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 I would add this. In general, where an adult is testifying as to events which occurred when she was a 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.
A witness may be credible in the sense that his or her sincerity may be evident, however, the testimony may never the less be mistaken for some reason. The Court must be mindful of this distinction between credibility and reliability in a case such as this where the complainant and two of the Defence witnesses, one of whom was the accused, were either young or very young children at the relevant time.
[62] Finally, to borrow from the decision of Judge Carole Beaton (as she was then) in R. v. J.H., 2010 NSSC 218 at paragraph 33:
I am mindful of the caution of Justice Cromwell, as he then was, in R. v. Mah, 2002 NSCA 99, who reminded trial judges that the exercise...means that an assessment of credibility, including any analysis conducted under R. v. W.D. is only part of the broader exercise of the weighing of all of the evidence, which then allows the Court to come to a determination on the question of the burden of proof that is on the Crown.
[63] I am not required to accept all of the evidence of either the Defence or the Crown. For that matter, I need not accept the evidence of any one witness in its entirety. I can accept all, none, or only some of the evidence of each and every witness.
[64] When I consider the Defence evidence (against the evidentiary mosaic as a whole) I find that they were all singularly unreliable when it came to dates. The only exceptions to this general observation occurred when the dates could be anchored to a particularly memorable event. Many of the members of the S. family were unsure of the birth dates of their siblings (or in Mrs. S.’s case, of her children and step-children) or even of the age difference between them. By way of further example, T.S., although otherwise aware of the age of the Complainant, felt that she had been her babysitter until the complainant was nine or ten years old. Given that T.S. actually moved from home in 1987, the Complainant could have been no older than four years of age when that occurred.
[65] In fact, 1987 is one of those “anchor dates” because T.S. clearly recollected that she was married in 1988, and that she had moved out of the S. residence to live with her husband-to-be in the year previous to her marriage.
[66] These are only a few examples of what was a problem endemic to the Defence evidence, including that of S.S., the accused’s mother. However, I was impressed by an important element of S.S.’s testimony, so much so that I consider it to provide another “anchor date” upon which the Court may rely. This concerned her evidence connected to C.M.’s decision to leave home when she was “15, almost 16 years of age”. She stated that C.M. did not return to the area until much later, after her son was ready to start school, after more than a decade had passed.
[67] S.S.’s emotion, in describing the circumstances leading to her daughter’s unannounced departure from her home at the age of 15, was palpable. It is obvious that the episode left an indelible mark upon her, that she recalls the circumstances vividly, that the wound is still there, and some hurt remains. We know that C.M. was born in 1975. This means that her departure took place no later than sometime in 1991, before her 16th birthday.
[68] I was less confident in some of the other evidence offered by both S.S. and her son, D.S. Both, for example, used the word “inseparable” to describe the relationship between D.S. and the Complainant. D.S. struck me as a very plain spoken individual, one who would not ordinarily incorporate such a word into his lexicon.
[69] Similarly, both testified that the Complainant’s parents were upset when T.S. left the home, which I have determined happened in 1987, because they had “lost their babysitter”. Since this would have occurred at a time when D.S. was five years old, it is likely that he was only aware of it through discussions with his mother, who would have participated in the actual discussion with the Complainant’s parents. This does not mean that what has been recounted is untrue. It simply suggests that S.S. and D.S. discussed their evidence, at least to some degree. While this in itself is not surprising, I find that the fruits of their discussions may have influenced D.S.’s recollection of some of his evidence.
[70] All of the defendants were, overall, very weak with dates and, at times, with basic math, as I have commented earlier. There was also some disagreement between the Defence witnesses on some other points. For example, with respect to the spare cot upon which the Complainant was said to have slept in D.S.’s room, all agreed that it was moveable. S.S. was unable to recall an instance of it having been moved to C.M.’s room. While acknowledging that the cot could be moved, she did not recall the accused ever having friends over who spent the night, so the need had never arisen. When asked if the complainant had ever spent the night in C.M.’s room, she replied in the negative, “I don’t know where K.H. would have slept in C.M.’s room.” T.S., on the other hand, did recall the cot being moved into the accused’s room on occasion, but simply not to accommodate K.H., who invariably slept in D.S.’s room either on the bed or in the cot.
[71] All Defence witnesses were uniform in denying that C.M. ever babysat the Complainant, that the Complainant had ever slept in the her room, and that they had ever witnessed any interaction between the accused and the Complainant of the type alleged by K.H.. C.M. (as indicated earlier) emphatically denied that the events alleged had ever occurred. That said, the contradictions in some of the details put forward by the Defence witnesses did not lend themselves to an acceptance of Defence evidence in the manner contemplated by the first stage of the R. v. W.D. (Supra) guidelines.
[72] I must then consider whether I am, nonetheless, left in reasonable doubt by the evidence of the defendant, and the Defence evidence overall, when that evidence is juxtaposed with, and considered in relation to, all of the evidence in this case.
[73] Even without holding anyone to a rigid date or time line as to when any particular incident occurred, the incident alleged to have taken place between the Complainant and the accused in the S.’s living room when the former testified that she was 12, and the latter (by mathematical deduction) would have to have been 20, must be viewed with some circumspection. I say this for a number of reasons.
[74] As previously noted, I found on the facts that C.M. left the S. residence likely in 1990 (and in any event no later than 1991) and did not relocate back to the area until approximately 2003. The incident described by the Complainant would have had to occur, if I accepted that her age recollection was exact, in 1995. It would also have had to occur in the presence of C.M.’s younger brother, D.S., who would have been 13 in 1995.
[75] Even allowing the Complainant some latitude with respect to her recollection as to the temporal location of the incident, it could not have occurred at a time when the Complainant was any older than eight years of age, given the date that I found that C.M. left the home. The difference between an eight year old child and a twelve year old is significant in relative terms.
[76] Another fact that gives me some pause arises in connection with the unanimous contention by the Defence witnesses that C.M. never acted as a babysitter for the complainant. I consider the fact that K.H. never once mentioned T.S. as a member of the S.’s household until the question was asked of her on cross-examination, at which time she conceded that she remembered T.S. babysitting at times and went on to describe one such occasion specifically.
[77] I further consider the nature of the acts which the accused is alleged to have perpetrated upon the complainant. To describe them as opportunistic and predatory is to understate their significance. They represent actions that one would not ordinarily associate with someone as young as C.M. would have been at the time, which is 12 to 14 years of age if the dates allocated in the Information are correct, and 11 to 13 if the age range suggested by K.H. (who testified that the events occurred when she herself was between the ages of three and five) are correct.
[78] In addition, I consider the differences in the way the Complainant described her attire when the offences occurred: clothed but with her nightie pushed up, as opposed to how she described it in her statement (given to the RCMP Constable Morrison on November 4th, 2012), when she described herself as completely naked on these occasions.
[79] I also consider the fact that K.H. testified that she has an image of waking up, seeing the accused performing oral sex upon her, and of herself digitally penetrating the accused. She stated she has seen this image every day since the age of three or four. When asked on cross what C.M. is doing in the image that she continually has seen since age three or four, the Complainant replied, “obviously enjoying herself. She looked like she was experiencing sexual stimulation.” This is obviously an interpretation that occurred to K.H. after much time had passed. It is not the conclusion that a child between the ages of three and five would have drawn.
[80] I consider all of the evidence as a whole whether specifically mentioned or not, and conclude that I am left in reasonable doubt as to whether any of the incidents occurred as alleged or at all, or, if they did occur, whether C.M. was the perpetrator. I, therefore, must enter an acquittal on all counts.
[81] The foregoing is dispositive of the matter. However, I make one final point with respect to the charges pursuant to Sections 151 and 152 of the Criminal Code, involving touching a person under the age of 14 for a sexual purpose. More particularly, I have considered the historical background to these Sections.
[82] On January 1st, 1988, the offence of gross indecency, formerly Section 157, was repealed and the offences of “invitation to sexual touching” and “sexual touching”, the present Sections 151 and 152, came into being. The Information (in the present case) alleges that the offences under Sections 151 and 152 were committed “between May 27th, 1987 and February 27th, 1989.” Therefore, for at least a portion of the time period alleged in the Information, the particular offences with which the accused has been charged did not exist at law.
[83] The specific date of the commission of an offence, as alleged in an Information, is generally not considered to be an essential element of it. However, in this case, even if I could have concluded that all of the other elements of the offence had been established by the Crown beyond a reasonable doubt, I would have to have concluded (also beyond a reasonable doubt) that the events captured in the charges pursuant to Sections 151 and 152 had occurred at a time when these were offences known to law, that is, on or after January 1, 1988. Given the unreliability with respect to the dates and times inherent in the testimony of virtually every witness who gave evidence in this proceeding, I certainly would not have been able to do so.
[84] As I have earlier noted, the accused is acquitted with respect to all counts. In closing, I wish to thank counsel for the professional and sensitive manner in which this trial was conducted.
Timothy Gabriel, JPC