New & Notable: An unassailable approach to a difficult body of evidence

KM was convicted of sexual assault and sexual interference. The victim was his eldest daughter. He appealed. He raised two grounds on appeal: first, that the trial judge failed to consider all of the evidence, including contradictions in her own evidence, in assessing the complainant’s credibility; and second, that the trial judge relied upon evidence that lacked materiality to support the victim’s evidence. The Court of Appeal dismissed his appeal: 2012 ONCA 319


The first time her father tried to get his daughter to touch his penis, the little girl refused, this prompted KM to place his daughter’s hand on his penis. She cried and he left. The following day the little girl told her mother that ‘daddy touched me in a bad way and he tried to make me touch him’. The mother responded “I fucking know already. He told me. He was drunk and he thought he was in my room.” The mother then grabbed her daughter by the hair and bashed her head on the floor several times. The victim, not surprisingly, never disclosed subsequent assaults to her mother.


The mother testified that she never received such a complaint from her daughter and denied assault the little girl. She did however confirm that on one occasion KM was drunk and upset and confessed that he had touched his daughter and that he “shouldn’t have” done that. He told he wife that he had done so because of lack of sexual attention from her.


When the victim was between 5 and 7 years old and ending when she was 9, her father would come into her bedroom and lie beside her. On some of these occasions he would touch her chest, other times she felt his erect penis pressed up against her back. Her father also tried to get her to touch his penis. The daughter testified that she saw her father masturbate in her bedroom and expose himself to her while on the stairs.


Other incidents occurred when the complainant was older including once when KM hugged the complainant from behind pressing his erect penis against her lower back. On another occasion KM lifted his daughter’s shirt, “unfastened her bra, and pulled down her pants” [para 13]. He rubbed her stomach and touched her breasts. The daughter testified that she was unable to refuse and the incident ended abruptly when KM’s girlfriend returned home.


The final incident involved KM inviting his daughter to administer an enema to him and he in turn would administer one for her. At the time the daughter was intoxicated and incapable of saying no. The daughter administered the enema for KM and then he did the same for her. When the two exited the bathroom KM told his son (the victim’s brother) that the complainant had just received the enema. All three returned to the living room where the victim sat on her father’s lap. KM covered her with a blanket and in the presence of his son fondled his daughter’s breast.


The victim is a troubled individual. She testified that she had been severely abused by her mother. She has experienced several mental health issues including depression, anxiety, bipolar disorder and has been admitted to hospital due to psychotic episodes. In addition she has a significant substance abuse problem. The victim had also been sexually assaulted by her music teacher when she was in the third grade.


The victim reported the abuse to police some 6 months after the so-called enema incident. Her brother testified for the defence and reported that he had no recollection of the incident, that if it had happened he would have remembered that and that he has never seen his father touch his sister inappropriately.


Before reaching any conclusions the trial judge noted the bizarre nature of the complaints against the accused and decided to instruct himself in accordance with the SCC decision in Vetrovec.


The trial judge went on to acquit KM of the charge in relation to the enema incident having concluded that there was no independent support for the complainant’s allegations and as such the Crown had failed to establish those charges beyond a reasonable doubt.


In relation to the other incidents the trial judge concluded that there was some independent evidence supporting the allegations. Specifically, the trial judge found that KM had confessed to his wife. And although the complainant’s mother’s testimony did not support the complainant’s evidence of the disclosure there were other confirmatory aspects including the fact that the complainant had a bath toy named Freddy the Fish and that KM would parade around the house clad only in a bathrobe.


On appeal KM argued that the trial judge had erred by finding the complainant credible without explaining how he had reconciled her psychological history and the contradictions between her evidence, that of her mother and her brother.


Dambot J, sitting ad hoc, wrote for a unanimous court that rejected this argument holding that:


In my view, the trial judge’s approach to the evidence was unassailable. After considering all the evidence, including the frailties outlined by the appellant, he found the complainant truthful in relation to past events. Despite this, with respect to the Thornton allegations, in the absence of confirmation, and in the presence of some contradiction, he said that he was not satisfied that the Crown had met its onus of proof. On the other hand, in respect of the Barrie incidents, in the presence of some confirmation, and in the absence of material contradiction, he said that he was satisfied that the Crown had met its onus. In my view, he was not required to do more [para 35].


KM also argued that the evidence found to be confirmatory of the complainant’s evidence lacked materiality. Again the court rejected this argument and held:


It must be remembered that evidence that strengthens the belief in the veracity of a tainted witness can be confirmatory even though it does not provide direct support for the allegation of misconduct. (See Law Society of Upper Canada v. Neinstein (2010), 99 O.R. (3d) 1 (C.A.)) Here, the evidence of the confession made by the appellant to his wife at the time was undoubtedly too vague to found conviction on its own. But it was certainly capable of confirming the evidence of the complainant.


With respect to the evidence about the existence of a fish bathtub toy, and the appellant parading around in a bathrobe, I am of the view that its confirmatory value was slight. While this evidence is directed to important parts of the complainant’s allegations, it is too commonplace to carry much weight. It is apparent, however, that the trial judge did not afford it great weight.  He made only a passing reference to it, and described it as supporting the complainant’s evidence “to a lesser degree.” On the other hand, he described the confession as “the most compelling factor,” and said that it provided sufficient support of the complainant’s complaint to give him confidence in accepting this part of her allegation against the appellant. Having regard to the significance he placed on the confession, I see no error in the trial judge’s additional reference to this minimally confirmatory evidence.  I would not give effect to this ground of appeal. [paras 38-39]