Just because a child gets small details wrong, it doesn’t mean their core memories aren’t true.
That legal principle is the basis for a Supreme Court of Canada decision to uphold the guilty verdict of a Hamilton judge on a pedophilia case. The memory and truthfulness of an eight year-old girl who contradicted herself about her mother’s whereabouts during a sexual assault has to be considered differently than if she was an adult.
In a decision released April 22, the country’s highest court restored the sexual assault and sexual interference (touching someone under 16 for a sexual purpose) convictions of a man known as D.F.
“The appeal dealt with the question of whether a judge in a criminal trial made a mistake in understanding and treating key parts of the complainant’s evidence in a manner that led him to unfairly convict the accused,” says a Supreme Court case brief. “In legal terms, this is called ‘misapprehending’ the evidence.”
A majority of the court restored the conviction, while one justice dissented.
D.F.’s name is covered by a publication ban to protect the identity of the victim.
It is rare for a Hamilton case to make it all the way to the country’s highest court.
The original guilty verdict against D.F. was handed down on June 17, 2021 by now-retired Justice Bernd Zabel of the Ontario Court of Justice. The offender was sentenced to three years in prison.
D.F. spent the day and evening at the girl’s Hamilton townhouse. Her mother testified she was at the house the entire time, except when she briefly went to a nearby store after dinner to buy pop. D.F. stayed behind with the girl and a younger sibling.
The girl testified that while her mother was out, D.F. sat beside her on the couch and showed her photos on his phone of a naked girl, focused on her genitals.
At trial, there were inconsistencies in the girl’s testimony under cross-examination.
Although during her interview with police and under examination-in-chief, she said D.F. put his fingers inside her while her mother was home, under cross-examination she said her mother was at the store when it happened.
The defence seized on that inconsistency to weaken the credibility of the girl and cast doubt on how D.F. could touch the girl in the open-concept home with the mother nearby. But it also argued that Zabel had misunderstood the evidence.
In his judgment, Zabel got the facts wrong, saying that the girl had repeatedly said her mother was not home during the assault and that she was inconsistent when she said she was home under cross-examination.
D.F. argued, in his appeal to the Court of Appeal for Ontario, that Zabel based his judgment on a “misapprehension of the facts.”
The Crown, on the other hand, argued Zabel believed the girl’s testimony even if it had minor inconsistencies.
Zabel noted while the girl was generally a “calm” and “compelling” witness, on the afternoon on which cross-examination began — and the inconsistency arose — the girl was “very active, constantly in motion, screaming and restless.”
Ultimately, Zabel wrote: “I find that any minor inconsistency in her testimony … were as a result of immaturity, confusion and not filled with falsehoods.”
Zabel said he weighed those factors, along with the mother’s evidence, in arriving at his finding of guilt.
The Court of Appeal overturned the guilty verdicts on the sexual assault and sexual interference charges. And it said Zabel had not sufficiently addressed the inconsistencies in his reasons.
Only Justice C. William Hourigan disagreed with the majority opinion and said Zabel made no errors in assessing the evidence, that he had made no factual finding about where the mother was during the incident, he had not relied on the inconsistent evidence in coming to his decision and had correctly applied a “common sense approach” — based on previous Supreme Court decisions — to assess the evidence of a child.
“Children experience the world differently than adults, and details such as time and place may be absent from their recollection,” wrote Hourigan.
That decision was then appealed to the Supreme Court by the Crown.
(A third charge, making sexually explicit material available to a child, resulted in a finding of guilt by Zabel, a decision upheld by the Court of Appeal. On examining D.F’s phone, police found six photographs of nude females, similar to what the girl described.)
The Supreme Court does not explain its decisions. However, Justice Hourigan, the Court of Appeal judge who came to the same conclusion the Supreme Court would later render, emphasized the importance of understanding the failures of a child’s memory. Failing to do so, he wrote, “is a troubling invitation that risks turning back the clock to a time when child witnesses were unwelcome participants in our justice system.”
