Decision Content
R v Palmer, 2023 NWTSC 26 S-1-CR-2016-000043
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HIS MAJESTY THE KING
-v-
DENNY PALMER
________________________________________________________
Transcript of the Reasons for Decision held before the Honourable Deputy Justice W. Grist, sitting in Yellowknife, in the Northwest Territories, on the 9th day of February, 2023.
________________________________________________________
APPEARANCES:
A. Lewis: Counsel for the Crown
E. McIntyre: Counsel for the Defence
--------------------------------------------------------------------------
Charges under s. 271 of the Criminal Code
There is a ban on the publication, broadcast or transmission of any information that could identify the complainant pursuant to s. 486.4 of the Criminal Code.
I N D E X
PAGE
PRELIMINARY MATTERS 1
EXHIBITS:
NO. DEFINITION PAGE
8 COMPUTER INVOICE DATED MARCH 2006 2
RULINGS, REASONS
DECISION 7
THE COURT: Counsel, I wonder if you could introduce yourselves?
A. LEWIS: Yes. Good morning, your Honour. Alison Lewis appearing for the Crown this morning.
THE COURT: And?
E. MCINTYRE: And Evan McIntyre, counsel for Mr. Palmer, who is present and seated to my left.
THE COURT: All right. I have a preliminary matter here that I ask counsel to discuss and perhaps provide me with some information. Well, first of all, there was considerable evidence that referred to a computer invoice dated March of 2006. I do not think we put that in as an exhibit, and I think it should be. So I wonder if, counsel, you can arrange for a copy of that to be presented as an exhibit, if it is not already. And I think it would be Exhibit 8 --
E. MCINTYRE: I can do that by e-mail. I don't have the physical document with me, but I can e-mail a scan or a copy --
THE COURT: Right.
E. MCINTYRE: -- of the document, if need be.
THE COURT: Right. I do not need it particularly in hand today --
E. MCINTYRE: Okay.
THE COURT: -- but I think it completes the record in better form, if it is exhibited.
E. MCINTYRE: Okay. I can send that into Madam Clerk. That's no problem.
EXHIBIT 8: COMPUTER INVOICE DATED MARCH 2006.
THE COURT: Right. Thank you. Now, counsel, I would also ask you to think back and help with some of the uncertainties that were in some of the evidence as to the early days when Miss -- well, I call her RP moved in and subsequently when VP moved in. I am putting together a chronology of events here. I have focussed on 'C's birth date as being in March 2004, and I wonder if that is in fact correct.
Other things fall into place better if in fact his date of birth was March 2003. That is just the way of the evidence. If he was born in March 2004, he would be 19 now and the next month turning -- no, he would be 18 now and turning 19 next month.
You see, the evidence as I have it is that, and this comes from both -- well, all three witnesses in fact, RP became pregnant before she moved in. It was said to have been in 2002. If that was so, C. would have been born in 2003. If she in fact moved in, in 2003 and VP moved in while she was pregnant and before C. was born, that would have been in 2003, again, if the birth date is correct. And if VP started school at 5 in September 2002, she would have been in grade 2 in 2003 and not grade 1 as some of the evidence suggests.
E. MCINTYRE: Well, I think I can clear most of this up. C. -- there is no question C. was born in March 2004.
THE COURT: Yeah, I thought that was likely a solid date.
E. MCINTYRE: It's a solid date. It's one that has been testified to before, and it's just for the witnesses when asked directly will tell you that. The uncertainty is of course there is some, as might be expected, a lack of certainty with -- in terms of when the relationship began, when Ms. RP moved in, and then when VP moved in shortly after that.
THE COURT: Yeah.
E. MCINTYRE: So I am looking at my notes from RP's evidence. She says she moved up in, or moved in with him -- they met in 2002, July or August. (As read): "When did you move in? A few months after we met." Was asked by the Crown (as read): "2002 or 2003?" She said, probably 2002, but not entirely sure.
THE COURT: Yeah.
E. MCINTYRE: And my understanding of the evidence, roughly is that VP moved in about six months after RP moved in.
THE COURT: Right.
E. MCINTYRE: I believe when I was cross-examining VP, she said that her mother was pregnant with C. when she moved in.
THE COURT: Yeah.
E. MCINTYRE: If C. was born in March 2004, that means that RP became pregnant with C. in around June or July 2003.
THE COURT: Right.
E. MCINTYRE: So there is not the certainty you may want, but if we use C's birth date as --
THE COURT: Yeah.
E. MCINTYRE: -- an anchor point, that -- those are the timelines we're left with.
THE COURT: All right. That helps. So thank you, Mr. McIntyre. That suggests that RP moved in -- in conjunction with the overall chronology, moved in, in 2003 and that VP also moved in, in 2003, and C. was born in March 2004.
E. MCINTYRE: I think that is right, yes.
THE COURT: All right. Well, another feature comes to mind. And I initially assumed that VP started school at five years of age. There is no particular evidence on that. It is just common that someone who is born in November starts when they are five and completes grade one when they are six.
E. MCINTYRE: Right.
THE COURT: If you are born after Christmas, then you likely will start when you are six and complete when you are seven, start grade one when you are six and -- that is how many school districts work, but it is not universal, and it is not necessarily the same for each child. So the evidence given, again, by all of them, works better if VP actually started at six and not five, and then that better coordinates with the evidence of her being in grade one when she moved in.
E. MCINTYRE: So there is no, and never has been in any proceeding, any evidence of how old she was when she started school.
THE COURT: Right.
E. MCINTYRE: There just isn't. We can approximate from various evidence what grade she may have been in various years, but those are actually also pretty uncertain too in the evidence, as far as I can tell.
THE COURT: All right.
E. MCINTYRE: So I just think we're left with that being --
THE COURT: All right.
E. MCINTYRE: -- a gap in the evidence or not certain in the evidence.
THE COURT: Then I will rely on the fact that the evidence would suggest, again, without being definitive, that she was in grade one when she was first in the home, perhaps just completed grade one, and that this again was in 2003. All right. Now, with that understanding as the best we can do with the evidence, then, you know, the other features of the evidence tend to fall in place because there are enough concrete dates and in fact document dates that help with the chronology.
E. MCINTYRE: Yes. And that was the purpose of leading those documents, is to try to establish something as best we could.
THE COURT: All right. Crown, I realize you are at a disadvantage as you are sitting in, and did not expect anything of this sort when you first came in the room. Do you want a few minutes to think this over and perhaps talk to Mr. McIntyre about it?
A. LEWIS: Yes, please. I would appreciate that.
THE COURT: Yeah. Okay. And of course if you want to take instructions, I think that VP, for example, may be available by telephone. In any event, I will give you some time here to consider what just has happened.
A. LEWIS: Thank you.
(ADJOURNMENT)
THE COURT: Yes, counsel.
A. LEWIS: So thank you, Your Honour, for the opportunity to have that break. And Crown had the opportunity to consult with trial Crown during that break because obviously Mr. Johnson has a better understanding of the context with which your -- you posed your questions. I understand with respect to Your Honour's concern about the birth date of C., that evidence was before the court with respect -- provided by both the accused and RP with respect to C. being born in 2004, and there is no reason to disbelieve that evidence. There was also evidence provided with respect to a trip that was taken in August of 2004, shortly after he was born, and so Your Honour is left with the evidence before you and left to grapple with that evidence as it was presented.
THE COURT: All right. I think I have gathered some information that is of assistance. Of course, as I said, these dates prior to, say, 2004 are not exactly definitive, but I think that the evidence is very suggestive of certain date-related evidence and placing it in a chronology, or placing it in what appears to be a logical chronology. All right. Well, dealing with this matter.
(DECISION)
Facts
The accused is charged with sexual assault of his common-law partner's daughter VP between the 1st day of January 2003 and the 31st day of December 2010. VP was between 7 years and 13 years of age during that span of time. The evidence relating to the charges is all events that occurred 13 to 20 years prior to this trial.
The three principal witnesses who gave accounts of events often could not be definitive in relation to dates, but certain dates were well accepted, and dated documents provided points of reference to help set a template and establish a chronology.
VP's date of birth was in November 1996. Her brother C. was born to RP and Mr. Palmer on March, or in March 2004. A towing receipt established the family's move to New Denver, B.C. as occurring in August 2004. A plumbing bill paid after the family returned to Yellowknife linked this to January 2005. Mr. Palmer's daughter by a prior relationship lived with the family in New Denver, and her grade four report indicates she completed the school year in Yellowknife in June 2005.
VP's mother RP met Mr. Palmer and moved into his residence in the summer of 2003. VP had been living in foster care during 2002 to 2003 and had been placed with a family living nearby Mr. Palmer's residence. VP moved back to reside with her mother and Mr. Palmer at the end of the 2002-2003 school year. She would have been seven years of age and finished grade one when she moved to Mr. Palmer's residence.
RP became pregnant soon after meeting Mr. Palmer and was pregnant when VP moved in. She and Mr. Palmer became parents to a son C. born in March 2004. And when C. was a few months old, the family moved to New Denver in the West Kootenays of British Columbia. A towing bill entered into evidence dated this move to August 2004.
Mr. Palmer took work with his father and the family stayed in New Denver until early in 2005, when they were returned to the same home they had lived in when they left Yellowknife. Mr. Palmer's daughter by a prior relationship, B., was living with the family during the time spent in New Denver and returned with them to Yellowknife. She was one to two years older than VP and was in grade four when VP was in grade two.
The girls had shared a bedroom in the mobile home in Yellowknife until B. returned to live with her mother in the summer of 2005. Mr. Palmer was a construction painter while working in Yellowknife. He had steady work and his hours were flexible.
Until C's birth, RP worked as a taxi dispatcher, working an early day shift and infrequently filling in on weekends and evenings. She took time off of work after her son was born. She did not work while the family was in New Denver or after the family had moved back to Yellowknife. She went back to school in October 2005 and found work with the government about one month after she completed her course in June 2006.
Both RP and Mr. Palmer indicated that the relationship was breaking down for several years prior to RP finally leaving the house shortly after a report made to the RCMP in March 2010. RP dated the breakdown to 2007 and said that after this she was still with Mr. Palmer on and off, spending time in the home to be close to the children. She said Mr. Palmer was controlling and that it was clear to her that if she left the home for good it would be without the children.
She said that after she began to work at the government job she had her own money and began to spend time in the evenings out playing cards and later drinking with friends. However this was, it is clear Ms. RP was periodically away from the home prior to the final separation during the last years of the relationship.
Ms. RP said she took VP to the police station in March 2010 because of something she had seen in the home. VP, then 15 years of age, did not tell the police constable who interviewed her of any sexual contact with Mr. Palmer. Ms. RP said that she left the home permanently soon after. She said that she was told by Mr. Palmer that VP did not want to live with her. She said Mr. Palmer did not want her to leave, and if she left, he made it clear it would be without the children.
Following this, later in 2010, Mr. Palmer decided VP should go to live with her mother. Mr. Palmer said VP was becoming a teenage woman and was best off with her mother. RP and VP moved to Grande Prairie the year prior to VP revealing sexual abuse by Mr. Palmer early in 2015. RP contacted the RCMP in Grande Prairie and arrangements were made for VP to give a statement when the two moved back to Yellowknife in June 2015. VP was then 18 years of age.
During the time VP lived with her mother, 2011 to 2015, VP said she only saw Mr. Palmer infrequently when he was dropping off or picking up C. She said she would not make eye contact or speak to him during these times.
The first incident of sexual assault VP gave evidence of, was her recall of being subjected to intercourse when she was eight years of age. She said she was attending the local elementary school that she attended to grade six. She said her mother was not home when Mr. Palmer came home from work.
He asked her to go to the master bedroom where he took off his clothes and told her to take off her clothes. She said that she was standing at the end of the bed and was told to lay on the bed, following which, he lay on top of her. She said she was doing what she was told, was scared, and did not ask questions.
She said he touched her a bit and then put his penis in her vagina. She said she did not know how long it lasted, that he did not use a condom, and ejaculated on her stomach area. She said that during this, she looked down and saw blood and that he told her not to worry and kept going. She said there was blood on the bed and on her and she did not understand why or how. After, she was told not to tell anyone or say anything. She said she got up and said she was bleeding and went to her bedroom, dressed, and sat in her room and cried, that her vagina hurt inside and she was uncomfortable for the rest of the day and the day after.
VP related earlier incidents that did not involve intercourse. She said when she first moved in, after being in the foster home and in grade two, she woke up in the evening and walked out of her bedroom to get a drink in the kitchen. She said Mr. Palmer was in his boxer shorts, sitting at a computer off to the side in the dining room area. There was no one else in the house at the time.
After she got a drink, she said he asked her to come over and he put her on his lap where she sat with one of his arms around her. She said he asked her to pick one of the porn videos on the computer screen. He watched one of them for five minutes or so and masturbated as she sat there. She said she did not know what to do or what she was seeing on the computer screen.
After he finished, she said he told her not to tell anyone and to go to her room. She said she did not understand why she was not to tell anyone. She was scared and did not want to go back to the foster home and that she now was with her mom and did not want to ruin this.
She said these events at the computer happened a fair amount and incidents of intercourse as happened in the master bedroom continued until she left the house, the last occurring when she was 12, 13 years old, after her mother had moved out. She said that incidents happened so many times she could not recall many of them and that details were jumbled together.
VP also related incidents that occurred when travelling with Mr. Palmer to visit his family in British Columbia. The first she gave evidence of was the last of these on a Christmas visit to Mr. Palmer's sister in Kamloops. Ms. RP was in Edmonton and joined them for the return trip to Yellowknife.
VP said there was only her and Mr. Palmer and her brother C. in the car on the way to Kamloops. She thought she was in grade seven in middle school at the time. She would have been in grade 7 and just turned 12 during Christmas 2008. C. would have been four years of age.
She described Mr. Palmer unbuttoning his pants and having her lean over the centre console, covered by a blanket, to give him oral sex as he continued to drive. She said this had happened only a handful of times. Another she remembered was when she was eight or nine when on a trip with Mr. Palmer and C. in the summer to visit his family, again, when her mother was not there. She said C. was one year old or so, and on both occasions, he was in the back seat. During the summer trip, he was in a car seat. She said C. would have been asleep, or when older, perhaps watching a movie at the time of the sexual assaults.
During the summer of 2006, about 18 months after the family returned from New Denver, VP was 9 years of age and C. was 2. During this summer, Ms. RP had started work about one month after she completed her course in June 2006. RP said that she did not make the 2006 summer trip because of work. This evidence supports the fact that VP and C. travelled with Mr. Palmer the summer of 2006 and Ms. RP stayed in Yellowknife.
VP said that at first, during the first computer event, she did not know what was happening. But during the Christmas trip, she thought she knew when he told her not to tell that it was not right and that she did not think this happened to others her age. She also said that by the end of her time with Mr. Palmer the sexual events had become normal.
She said she did not tell the police when taken to the detachment by her mother shortly before her mother left because she was afraid of Mr. Palmer and did not want to get into trouble. She explained she stayed with Mr. Palmer, though being scared of him, because her mother's life was unstable when she moved out. She said she was not sure that she had wanted to stay with Mr. Palmer and that in the circumstances she did not really choose who to stay with.
She said she moved in with her mother before the winter of that year and that her mother then had her own place in Yellowknife. During the years following, she said she was embarrassed by what had happened to her and she was afraid of Mr. Palmer who came by from time to time to see her brother. She said she was trying to get over it and that it was hard when someone who was to care for you does this.
She first told one of her friends and eventually told her mother. She said she needed to tell someone. And Mr. Palmer then had a young daughter. She said she did not want it to happen again.
In cross-examination, VP admitted that at the earlier trial of these charges:
1) that she did not recall sharing a room with B. when they returned from New Denver,
2) that in her previous evidence, she had said that Mr. Palmer had first told her to go back to bed before he had her come to sit on his lap at the computer, a detail she did not provide in her evidence-in-chief, and that she had not said at a previous trial that he ejaculated when masturbating,
3) she earlier had not recalled him saying anything before the first incident in the master bedroom and she now recalled more details of this incident, and
4) she earlier had said he touched and penetrated her vagina during the first act of intercourse with his finger and that she now said he did not.
VP agreed there were discrepancies and said these memories were mixed with others and that she did not recall events then that she did now. VP was shown a receipt for the purchase of a computer dated March 2006 and asked if this was the desktop computer she indicated in her evidence. Counsel suggested if this was the one, then the event she said happened when she was seven was not possible because the purchase was dated March 2006 when she was nine.
Her reply was that he had a desktop computer before March 2006, that she remembered he had bought a laptop at one point in time, but that he had more than one computer over the time she was in the home. The next day, counsel indicated that he had been mistaken and the receipt was in fact for a laptop. When questioned again, VP said there was an earlier one than the laptop, and this agreed with the proposition there was no laptop computer until after the renovation was done, sometime after November 2006.
She was also shown a picture of the dining room kitchen area. The picture showed a dog, Buddy, who was in the home both before and after VP moved in. It was suggested the picture did not show a computer. VP said there was a computer there when she was there and pointed out that the counter in the picture was not there in that configuration when she lived there. The picture, which does not show the whole of the dining area, appears to be from before VP or her mother began to live at the mobile home. Ms. RP also noted the discrepancy and said Mr. Palmer always had a desktop computer with a tower and a screen.
Ms. RP's Evidence
Ms. RP provided evidence of her and VP's time with Mr. Palmer. She said that in the years prior to 2010 when the relationship with Mr. Palmer was on again, off again she stayed because he did not want her to leave, and she knew if she was to leave he would make sure it was without the children. She said she thought she first took VP to the police detachment in 2006, prior to the 2010 report. Counsel determined through the police detachment there was no record of a 2006 interview.
She confirmed that B. and VP shared a room during the balance of the school year in 2005, after they returned to Yellowknife. She said that Mr. Palmer did the bulk of the laundry, but she changed the sheets at times. It was suggested to her on cross that at no time was there blood on the mattress. She said she had no recall of this, but if she did she would have thought it would have been hers, that it was part of being a woman.
In other respects, Ms. RP confirmed the chronology. She supported VP's assertion that Mr. Palmer always had a desktop computer and that the photo of Buddy must have been from before she moved in. Ms. RP said that Mr. Palmer and VP never got along, that Mr. Palmer was loud and angry and always found fault and grounded VP.
Mr. Palmer's Evidence
Mr. Palmer gave evidence in his defence. He said he initially did not know Ms. RP had a child when she moved in and that later learned VP was in the care of Child Services in a nearby foster home. He said that when VP moved in she was already in grade one, that Ms. RP was pregnant when she moved in, and that VP moved in before C. was born.
He related that he rented out the mobile home to a friend when the family moved to New Denver in the summer of 2004, returning early in 2005. He said B. was with them when they returned and that she and VP shared a room for the rest of the school year.
In respect of the Buddy photo, he said the dog Buddy was with him for 13 years, until he died when C. was little. He said the photo and the counter was likely were likely old, and he had shortened the counter at one point.
Mr. Palmer denied he owned a desktop computer when Ms. RP moved in. He also said he did not recall having a laptop. He said that when he acquired a computer, it was put by the window in the corner of the dining room. This was after he had refinanced the mortgage. He was shown the November 1, 2006, mortgage renewal statement which still showed the original mortgage with his ex-girlfriend, which indicated the renovation was after the end of 2006. He again said that to the best of his recall he did not have a computer until then.
Mr. Palmer denied VP's account of having her watch porn with him. He said it never happened. In regard to the evidence of VP of sexual intercourse, Mr. Palmer said he and Ms. RP both did laundry and there never was a bloodstain on the mattress. He said there never was an incident of intercourse with VP.
He recalled a trip to B.C. with VP at Christmas when Ms. RP was in Edmonton. He said the trips in the summer were always with Ms. RP or others. It was unclear what others could have been on the summer trips to B.C. except C., who initially would have been quite young.
Mr. Palmer recalled C. being five to six years old on the Christmas trip and not likely in a car seat. Mr. Palmer denied forcing VP to perform oral sex. He said he and Ms. RP split up for good after the 2010 report to the police. He said they had been back and forth before this final separation.
Mr. Palmer said VP chose to stay with him and her brother C. when her mother left and that he never told Ms. RP that she could not take VP or C. Mr. Palmer said said that the first years they were together were good. They were living as a family but that things went downhill sometime after Ms. RP got a job after C. was born. He said that after a while she began drinking and that he would be with the children alone.
He denied he touched VP for a sexual purpose. In cross-examination, Mr. Palmer described his job as eight to five but flexible, that he had his own vehicle and could come from time to time if he wanted to -- could come home from time to time if he wanted to. He said he and VP regarded their relationship as stepdaughter/stepfather. He said he did discipline her by grounding her but that there was no serious trouble and that punishments were minor.
In cross, Mr. Palmer confirmed that the renovations of the mobile home did not happen until the mortgage was refinanced and put into his name alone. In cross, he said he got the desktop computer on the refinancing but added that he could have got a computer before, referencing the laptop acquired in March 2006. When asked if he was sure he did not have a computer before this, he then said he could not say they did not have a computer in the kitchen area before this.
Mr. Palmer was asked if he sometimes watched porn on the computer. He said he did sometimes. In his evidence at the previous trial he was asked the same question. His answer then was that he only watched it one or two times when stuff popped up on the Internet.
When pressed that this earlier statement was not true, he said that people had said a lot of bad stuff about him, and he had said this, but that now he was not going to say he did not not watch porn. He was pressed that his watching porn sometimes, was different than the one to two times he previously described. His reply was that at the previous trial he was frazzled and it was a hard thing and he misunderstood the question.
Crown counsel then referred to his previous statement that porn had popped up on his screen. Mr. Palmer initially began to again give an answer as to how frequently he watched it, but when again referred to the statement that he watched it only when it popped up, he agreed he had searched for it.
Mr. Palmer said he did not recall a summer trip to B.C. when Ms. RP stayed at home. He was also referred to his statement that C. was five to six years old at the time of the Christmas trip and referred to his earlier statement that C. was at an age to require a car seat. He said he was not now sure if he required the car seat as he said before, suggesting that he was younger than the five-to-six estimate.
Counsel Submissions
Counsel for Mr. Palmer submitted it would be unsafe to convict on the evidence and there was no principled reason to disbelieve Mr. Palmer's denials of the sexual assaults. He stressed that the Courts analysis needed to confirm with R v W.(D.) 1911 CanLII 93 (SCC), [1991] 1 SCR 742, and said that VP's evidence contained inconsistencies and that her memory was malleable. He said that if there were challenges to Mr. Palmer's evidence it should not lead to a rejection of all of his evidence and that at least his evidence should sustain a reasonable doubt. He dealt with differences in the evidence:
1) in respect of when a computer was in the house,
2) Ms. VP's evidence that was inconsistent with previous statements or in addition to what she previously said:
a) as to what Mr. Palmer said to her prior -- to her account of what happened when he was on the computer,
b) her account in her evidence of his having ejaculated during this event,
c) her account at trial that he did not penetrate her with his finger prior to intercourse when she said he did this at the previous trial.
Defence counsel submitted it was an evasion to say that these memories were all jumbled up. Counsel also referred to the fact that VP stayed with Mr. Palmer when her mother left the home, which he argued was inconsistent with abuse, and said her situation that there were hundreds of incidents of sex and assaults was unlikely in light of the family schedule.
Lastly, it was submitted that there was only certain evidence of no more than one road trip when RP was not there, being the Christmas trip to Kamloops, and that if there had been blood on the mattress, it would have been noticed by Ms. RP.
Crown's Submissions
The Crown submitted that VP's evidence of the existence of the computer was supported by Ms. RP's evidence, that Mr. Palmer's account was inconsistent.
VP's demeanour was described as her struggling to present difficult events, and her evidence was said to be unchallenged at its core. In contrast, Mr. Palmer's evidence and demeanour was said to be not forthright, as illustrated by his answers in relation to accessing porn when he was first offered -- when he first offered excuses for his previous evidence before being forced into an admission. The Crown argued there were ample opportunities for Mr. Palmer to have committed the assaults described and that VP's explanation for not living with her mother explained her living with Mr. Palmer after the separation.
Analysis
This is a trial in which the evidence of the essential elements of the offence charged is largely focussed on the testimony of two witnesses. As indicated at paragraph 44 of R v Bowers, 2022 ABCA 149, the steps of R v W.(D.) 1911 CanLII 93 (SCC), [1991] 1 SCR 742, overlap with the assessment of the witnesses' credibility.
But this process cannot become an impermissible credibility contest, that is whether one witness is believed over another. Such a contest avoids the second question in R v W.(D.) 1911 CanLII 93 (SCC), [1991] 1 SCR 742, whether the accused's evidence raises a reasonable doubt, and the ultimate test, whether the evidence in whole proves guilt to the criminal standard. R v Dick, 2018 BCCA 343, at paragraph 27 is also on point.
VP was between 7 and 13 during the times referred to in the indictment. In R v W.(R.), [1992] 2 SCR 122, the Court endorsed a common-sense basis for taking into account the strengths and weaknesses of evidence given by a young witness. In some such cases, it has to be remembered the witness is often an adult person trying to make sense of observations as a child, inexperienced, and with little understanding of what is happening, perhaps at the hands of a person the child would expect to be a caregiver and responsible to keep the child safe.
Further, children may be challenged in providing details like frequency, total numbers of occurrences, and in distinguishing one occurrence from another. Further, disclosures may be a considerable time after the event.
In the case of VP, there were few inconsistencies with prior statements. And those referred to: what was said to her prior to the first computer event, whether Mr. Palmer ejaculated, and whether he penetrated her with his finger before the first act of intercourse, were lesser details and could well have been a product of VP trying to recall the narrative from her early memories of the events. I did not find her explanations evasive.
VP's account of the computer being in a mobile home from the time she moved in was supported by her mother's similar statement. And Mr. Palmer's evidence on this score was at best uncertain.
I also have concluded there was an earlier 2006 summer trip to B.C. with only VP, her young brother, and Mr. Palmer in the car. This evidence was supported by her mother and the circumstances of Ms. R.P. having just been hired that summer and having to stay home to go to work.
The two exhibits put to VP to discredit her evidence did not have that effect. The laptop bill was erroneously presented as the first time a desktop computer came into the house. VP replied that it was not and that a laptop computer had been there and also an earlier desktop. The Buddy picture suggested as showing the dining room area without a computer was recognized by her as showing a layout that had not been there while she lived in the home, a fact supported by her mother and later acknowledged by Mr. Palmer.
I found VP's account of staying behind after her mother left the home to be credible for the reasons she gave. Her mother's living arrangements were unstable at the time, and VP did not want to end up in foster care. It was clear her brother was not to leave with her mother. And in the circumstances, she did not really have a choice, and she also had begun to think of the sexual assaults as normal.
In regard to the delayed disclosure and her failure to disclosure to the police in 2010, her explanation was that she did not want to get into trouble and was embarrassed to have to tell of the sexual assaults. In the context of a young teenager put in this position, these statements have credibility.
Finally, VP was articulate in describing the startling, to an eight year old, event of bleeding during the first act of intercourse and of crying in her room after the event and of not knowing what was going on as Mr. Palmer masturbated in front of the computer.
With respect to Mr. Palmer's evidence, Mr. Palmer denied he committed sexual assaults during his relationship with VP. As submitted by his counsel, an accused cannot give particulars of an event that did not happen, but his evidence can be tested through attention to inconsistent statements, inconsistencies in his own evidence, or in respect of inconsistencies in respect of facts reliably proven.
Mr. Palmer's evidence given at the first trial in respect of accessing porn was not the truth. A knowing untruth given under oath is always serious and can take away any confidence that a sworn witness will otherwise tell the truth. Mr. Palmer's access to porn is not to be taken as a matter of propensity, but the untrue statement is significant because it was meant to counter VP's evidence of the incident at the computer.
Mr. Palmer's evidence that the first computer was acquired with money from a mortgage refinancing that could not have occurred until 2007 was unconvincing in light of the purchase of the laptop in March 2006 and both VP's and Ms. RP's evidence there was a computer there much earlier.
Mr. Palmer's evidence of there being only the Christmas trip to B.C. without Ms. RP is also in conflict with the evidence I find reliable of an earlier summer trip, in light of the circumstances of Ms. RP having just become employed in the summer of 2006 and VP's memory of the event and the recall of her and C's age at the time.
The Evidence of Ms. R.P.
Much of the evidence given by Ms. RP conformed to the chronology suggested by the whole of the evidence. Her evidence of an earlier 2006 report to the police is not supported, however. It seems clear there was no concern in respect of VP being sexually assaulted brought to police attention in 2006. This did not happen until March 2010. In other respects, as indicated, I accept her supporting evidence of the presence of the computer and her not being available to go on a summer trip in 2006.
The W.(D.) Analysis
I find VP's accounts of sexual assaults over the years indicated in the indictment to be credible and compelling. Her description of herself as a young person trying to understand and deal with sexual assaults by Mr. Palmer were particularly convincing of the fact she was being truthful.
There were no major inconsistencies in her account of the narrative and many of the aspects of her evidence challenged by the defence either were supported by other evidence, as in the case of the presence of the computer and the earlier 2006 trip to B.C., or successfully rebutted by her as in the challenges to her evidence said to be presented by the 2006 computer bill and the Buddy pictures.
The fact that hundreds of sexual assaults may not be a correct total is not inconsistent with a young person's recall of events that have taken over their lives. And if demeanour and lack of motive to fabricate are taken into account, and in my view they should not be major features in establishing credibility, both considerations favour VP's evidence.
In the ultimate, I reject Mr. Palmer's evidence of denial of sexual assaults. I do not find that his evidence gives rise to a reasonable doubt. And on the strength of VP's evidence and the supporting evidence provided at this trial, I conclude the Crown has satisfied the obligation to prove the offences to the criminal standard and convict the accused as charged.
All right, counsel.
E. MCINTYRE: So with respect to sentencing, we are going to ask for an adjournment for Mr. Palmer to get his affairs in order because he'll, of course, be going into custody and he does have two young children he needs to house and have his place taken care of. Prior to this appearance, my friend Mr. Johnson and I coordinated dates. Of course, we don't have the courts or your dates for sentencing.
THE COURT: Yeah.
E. MCINTYRE: The dates that are mutual to the two of us are May 18th and 19th, if that could work for Your Honour.
THE COURT: All right. Give me that date again, counsel?
E. MCINTYRE: Either May 18th or 19th.
THE COURT: All right. I think I am available for both of those dates.
E. MCINTYRE:
THE COURT: I am pretty flexible for the month of May. So, counsel, should we set the 18th?
E. MCINTYRE: Yes.
A. LEWIS: That is agreeable, yes.
THE COURT: All right. This matter is adjourned over for sentencing to the 18th of May.
E. MCINTYRE: Oh, and before we break, there's -- he's currently on a recognisance. By consent, or my friend is going to re-open bail and simply add a reporting condition --
THE COURT: All right.
E. MCINTYRE: -- for Mr. Palmer. I'm not sure how they're generally worded up here, if it's within two working days he has to call a certain number or something like that and then report --
THE COURT: Crown, can you assist?
A. LEWIS: Yes. I would suggest that it be within 48 hours that he report to a bail supervisor and then -- and thereafter as directed.
E. MCINTYRE: Makes sense.
THE COURT: All right. That will be added as a term of release. And as I have indicated, the matter is adjourned over for sentencing to May the 18th. Counsel, if you have any authorities that you want to rely on, then I would ask that you give them to me at least a day or so before.
E. MCINTYRE: Certainly. I don't think it will be contested. He was previously sentenced on the other trial. And it may --
THE COURT: Yes.
E. MCINTYRE: I won't hold my friend to this, but it may well be that we're simply asking for the same sentence that he --
THE COURT: Right. I appreciate that there was a previous trial. I did not know that -- if it went to sentencing or not.
E. MCINTYRE: Yeah.
THE COURT: And that will be something that at the least would come into view on sentencing.
E. MCINTYRE: Yes.
THE COURT: And I leave it to counsel as to whether or not in fact it should be taken as determining the sentence to be imposed.
E. MCINTYRE: Certainly. Thank you.
THE COURT: We are adjourned.
A. LEWIS: And if I may just ask before we adjourn, the May 18th --
THE COURT: Yes.
A. LEWIS: -- is that a 10:00 a.m. start time?
THE COURT: I am sorry?
E. MCINTYRE: 10 a.m., May 18th.
A. LEWIS: 10 a.m. start time for May 18th?
THE COURT: Oh.
E. MCINTYRE: That's the usual start time. That's fine, I think.
THE COURT: All right. Can leave that with counsel?
A. LEWIS: Thank you.
E. MCINTYRE: 10 a.m. is good. Thank you.
A. LEWIS: Thank you.
THE COURT: Okay.
(PROCEEDINGS ADJOURNED TO AUGUST 29, 2023,
Veritext Canada, the undersigned, hereby certify that the foregoing pages are a complete and accurate transcript of the proceedings transcribed from the audio recording to the best of our skill and ability. Judicial amendments have been applied to this transcript.
Dated at the City of Toronto, in the Province of Ontario, this 2nd day of November, 2023.
Veritext Canada
____________________________________
Veritext Canada