ONTARIO COURT OF JUSTICE
Central East Region (Oshawa)
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
A.O.
(A Young Person under the Youth Criminal Justice Act)
Before Justice F. Javed
Heard on October 5, 15, November 25, 26, 29, 2019
Reasons released on: December 13, 2019
H. Cook counsel for the Crown
M. Bojanowska/A. Sewrattan counsel for the Young Person
REASONS FOR JUDGMENT
I. OVERVIEW
1A.O. is a young person under the Youth Criminal Justice Act (“YCJA”). He is charged with crimes of sexual violence involving his younger cousin, S.A. Specifically, A.O. was charged with the following three counts under the Criminal Code:
a. invitation to sexual touching between August 1 and September 1, 2017 (s.152);
b. sexual assault between August 1 and September 1, 2017 (s.271); and
c. sexual assault between September 1 and December 31, 2017 (s.271).
2S.A. alleges she was sexually assaulted by A.O. who was 16 years old at the time and living with her family in Ajax. The specific allegations involve repeated penile penetration against her buttocks and touching of her breasts and forced touching of his penis. S.A. claims the penile penetration occurred approximately 25 times. S.A. was 11 years old at the time of the alleged offences and disclosed the sexual touching to her parents after her mother saw S.A.’s text messages with a friend. A.O. was immediately confronted about the sexual touching, which he denied. S.A.’s school notified the Children’s Aid Society (CAS) after an issue was raised about her performance in school. A CAS worker spoke to S.A. and the matter was ultimately reported to the police by the CAS. A.O. was charged accordingly.
3The Crown proceeded by indictment.
4At trial, A.O. was 17 years old while S.A. was 13. S.A. testified via closed circuit television (CCTV) and with the assistance of a support person. Her evidence was introduced through a videotaped statement she provided to DC Arnott of the Durham Regional Police Service on March 14, 2018 pursuant to s.715.1 of the Criminal Code. A voir dire was conducted for this purpose and I was satisfied the pre-requisites had been met to receive her evidence: Exhibits 1(a) and 1(b). Counsel agreed to make copies of the transcripts of the interviews as numbered exhibits: 2(a) and 2(b). For clarity, while only one interview was conducted, it was broken up in two parts, resulting in two separate DVD’s.
5In addition to S.A.’s evidence, the Crown called her mother. I will refer to her in these reasons as “Ms. A”.
6A.O. elected not to testify. Instead, the defence called A.O.’s mother. She shares the same initials as her son, thus I will refer to her in these reasons as “Ms. O”.
7Ms. Bojanowska advised A.O. is autistic and has anxiety, which was later confirmed by his mother in her evidence. On consent, I permitted his support person to remain with him in the courtroom. The support person did not testify.
8In a previous ruling, A.O. successfully applied under s.278.3 of the Criminal Code for production of records in possession of the CAS in relation to their involvement with S.A. and her family. Both S.A. and her parents had the benefit of counsel at the hearing. This application was heard on October 5, 2019 with written reasons delivered to the parties on October 15, 2019. A copy of the produced records were sealed and attached to the information. A copy of my reasons on the application was attached to the information to complete the court record.
9On November 29, 2019, I heard oral submissions. I decided to reserve to consider my verdict. I was also provided with some case law. The parties agree that the sole issue left for the court to consider involves a credibility and reliability assessment of S.A.’s evidence. In other words, it is not disputed that the acts complained of by S.A, if proven beyond a reasonable doubt, would make out the sexual offences that are alleged. Accordingly, I will not spend time on analyzing the elements of the offences and instead move to the contested issues.
10The Crown submits that S.A. provided a consistent and credible account of being sexually assaulted by A.O. Ms. Cook says any arguments about her delayed or incremental disclosure of the allegations to her parents doesn’t impact her credibility both as a matter of law and in the context of this case because the family never intended for the police to get involved.
11The defence position is that there is ample room for reasonable doubt because S.A.’s evidence presented with three different versions of the allegations, which makes her account incredible and unreliable. Ms. Bojanowska anchored her arguments on three broad planks. First, she says there were several material inconsistencies in her evidence, which detracts from her credibility. Second, the account was improbable, thus not credible and third, the account was unreliable as it was tainted by her mother, who unwittingly suggested A.O. engaged in sexual impropriety with her. The defence position is that either factor on the credibility scale, considered alone or in combination, is enough to raise a doubt about A.O.’s guilt.
II. THE LEGAL PRINCIPLES
A. Reasonable Doubt
12In a criminal trial, the Crown carries the heavy burden of proving the guilt of an accused person beyond a reasonable doubt. Reasonable doubt is a matter of common sense and human experience and must be grounded in the evidence. As a standard, it does not require proof beyond all doubt, nor is it proof to an absolute certainty. At the same time, reasonable doubt lies far closer to absolute certainty that it does to a balance of probabilities. If I am not sure about A.O.’s guilt, the law instructs me that I must find him not guilty. Conversely, a conviction can be supported on the uncorroborated testimony of a single Crown witness.
13There was no onus on A.O. to prove his innocence. The burden remains with the Crown to prove his guilt. In cases involving credibility assessments, the law requires that I must apply and carefully follow the three-prong test set out in W.D. v. The Queen, 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (“WD”).
14The WD test is the same if an accused testifies or not. In R. v. B.D., 2011 ONCA 51, the Court of Appeal has instructed that even in cases where an accused does not testify, WD must be applied where there is conflicting exculpatory evidence adduced through the Crown’s witnesses that is favorable to an accused. This must be assessed in the context of all the evidence. Here, A.O. did not testify and the parties agree, as do I, that I am not permitted to use his denial of sexual touching for its truth. The denials were tendered as part of the narrative to explain the unfolding of the circumstances of the disclosure. A.O.’s denials are therefore prior consistent statements, which are inadmissible: R. v. Liard, 2015 ONCA 414, at para. 56, leave to appeal refused, [2015] S.C.C.A. No. 402. That said, where there is other exculpatory evidence adduced by the Crown’s witnesses, that is admissible and which is relevant and material, I am permitted to use it in the WD evaluation.
B. Credibility
15A criminal trial is not a credibility contest. A just verdict must be based on the evidence not my impression of the witnesses. While demeanor evidence is one factor that a court must assess, it cannot be used to resolve a credibility dispute: R. v. J.A.A., 2011 SCC 17. Credibility assessments in sexual assault cases are notoriously difficult. As recently observed by the Court of Appeal, it is an error of law to rely on pre-conceived views about how sexual assault victims would or should behave: R. v. Cepic, 2019 ONCA 541 at para. 2; R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 at para. 65; R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2.
16While arguments about “common sense” are often used in assessing credibility in sexual assault cases, courts are cautioned against doing so because it can “mask reliance on stereotypical assumptions”: R. v. A.B.A., 2019 ONCA 124, 372 C.C.C. (3d) 301, at para. 7; Cepic, supra at para. 1; R. v. T.G., 2018 ONSC 3847, [2018] O.J. No. 3293 (SCJ) at paras. 24-30. In T.G., supra, Justice DiLuca reminded that any common sense arguments must be informed by a current understanding of sexual assault dynamics and the realities of human interaction. This is especially difficult where children are involved. I have instructed myself on these principles because in submissions an argument arose over whether the defence attack of S.A.’s credibility was premised on stereotypical generalizations and assumptions. The short answer is no – which I will expand on below.
C. Evidence of Children
17SA was 13 years old at the time of testifying. She clearly had the capacity of testifying and promised to tell the truth. The law instructs me that I must approach her evidence with different considerations in mind. The Supreme Court has held that a court should refrain from assessing the evidence of children using an adult standard: R. v. F(C.), 1997 CanLII 306 (SCC), [1997] S.C.J. No. 89, at paras. 48-49; R v. W.R., 1992 CanLII 56 (SCC), [1992] S.C.J. No. 56, at paras. 23-26; R v. B.(G), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at paras. 47-48. A trier of fact must consider the credibility and reliability of the child witness in light of all of the evidence at trial, with reliability potentially being the more important focus: R v. Morin, 1988 CanLII 8 (SCC), [1988] S.C.J No 80; and, R. v. Gostick, 1999 CanLII 3125 (ON CA), [1999] O.J. No 2357 (C.A.). Where there are potential problems with a child’s evidence, there is no fixed formulaic approach to the assessment of potential problems – the trier of fact should assess both the strengths and weaknesses within the context of the evidence at trial: R. v. Marquard, 1993 CanLII 37 (SCC), [1993] S.C.J. No 119, at paras. 19-20.
III. THE EVIDENCE
17Before I turn to the credibility evaluation, I will summarize some background evidence. Again, I will use initials where appropriate mindful of the publication ban and the age of the parties.
A. The Parties
18A.O. and S.A. (“the parties”) are second cousins by virtue of their fathers being first cousins. S.A. was 13 years old at the time of testifying. She has two siblings, S.K. who is 17 years old and a younger sister, M.K. or otherwise known as H, who is 9.
19A.O. is currently 18 years old but he was charged as a youth. He is referred by his cousins and family with a nickname, being T. He has two brothers. One is younger at 15 years of age, while the older brother is 21. While testifying, S.A. referred to “my cousin” as the perpetrator. I’m satisfied when she used the term “my cousin”, she was referring to A.O. and not somebody else, for example, A.O.’s brothers who would also be her cousins. Identity is not an issue in this case.
B. A.O.’s Autism Diagnosis
20Ms. O explained that A.O. is diagnosed with autism and is on the spectrum. She stated he can function at a high level academically but socially and behaviorally he functions at the equivalent of a 6 year-old child. A.O. is very particular and likes to have his own space. He requires specific directions from others. Importantly, he doesn’t like to be touched. She explained even she has to get his permission before hugging him. For this reason, she registered him with the local police to make sure he is not physically touched.
21In cross-examination she said A.O.’s autism doesn’t result in him acting out impulsively. Further, his autism diagnosis includes “repetitive patterns”. This wasn’t flushed out in detail but she did say that he would repeat negative comments if uttered at him. For example, when S.A. called him “dumb” or “stupid”, he would counter with the same comments and add others like “fat”. In the past, she has pulled S.A. and others aside to explain to them that he is blunt in his expression and this may explain why he uses this kind of language.
C. The Move to Canada from Nigeria
22Ms. O testified she visited Canada with her family in July 2015. She wanted to make a refugee application and the plan was for her boys to enroll in local schools while she stayed with her brother and sister in law (the A family). S.A.’s parents were going to act as their guardians while they attended school. She returned to Nigeria with A.O. and his younger brother while her eldest stayed behind and enrolled at York University. In July 2016, she returned with the boys and stayed with the A family in their home in Ajax. On November 5, 2017, she along with A.O. and his younger brother moved out to their own residence in Pickering. A.O.’s older brother was living on residence at York University but would visit the family on occasion.
D. The Living Arrangements
23The A family home in Ajax was a tight space for eight people but the families were doing their best to make it work. All the cousins were getting along with the odd but not unusual dispute and/or fight. The A residence had three bedrooms with an unfinished basement. A.O. and S.A.’s brother were close in age so they occupied the living room which was not a formal bedroom. They slept on a mattress. This became A.O.’s living space. The master bedroom was occupied by Ms. A and her husband. It had an ensuite bathroom. It was known by all that only S.A., her sister and her parents could use that bathroom. The O family was not permitted to use this bathroom.
24S.A. and her sister H occupied a second bedroom while Ms. O and her youngest child occupied the third bedroom. The O family used the upper floor bathroom which had a shower. S.A.’s brother used this bathroom as well.
25The basement was used to store food and other items. It did not have a living space. A.O. and his brothers kept their clothes in the basement and would go into the suitcases when needed. A.O. and the other boys would “sometimes” get dressed in the basement after using the shower upstairs.
26The living arrangements stayed intact until July 2016. Ms. O testified she was encouraged by her brother in law to work and did not understand the legal requirements so she worked under the table for a short while but quit once learning it wasn’t legal. I don’t make much of this against her credibility. She secured employment as a clerk at a law firm after volunteering. Prior to this, she was giving the A family her income to help pay the bills. Ms. O said after she began to earn her own income, she turned over less money, which caused some friction in the extended family. In December 2016, her sister in law had stopped working even though her husband was working part-time. Ultimately, in November 2017, she moved out. Ms. O agreed that the family relationship had become strained and she had “overstayed her welcome”. She tried to keep the tension away from her kids.
E. The Family Dynamics
27Ms. O testified that in the summer of 2017, while she was volunteering, her boys, including A.O. were also volunteering at a women’s shelter thus, were out of house 3 days of the week. She said during the school year it was not uncommon for A.O. to come home late because he was involved in extra curricular activities. He would sometimes arrive at 6-7 pm. The kids attended different schools so came homr at different times.
28Ms. A confirmed that the family relationships were cordial at first but became strained because the O family had overstayed their welcome. It was a full and busy house and the strain was obvious. She agreed it was a “toxic” environment. S.A. confirmed this as well stating towards the end, the adults stayed in their own rooms and she heard her parents speak negatively towards A.O who was disruptive. She admitted her mother was “shining a negative light on him [AO]”. In cross-examination, she said she didn’t like this because she liked spending time with him.
29Ms. O explained that S.A. and A.O. would often bicker. This was confirmed by S.A. who agreed that A.O. was “very blunt” and often said mean things such as calling her “fat” and “dumb”. She would tell her parents who would get involved. A.O. would get disciplined but would do it again. Despite this, she agreed she still wanted to hang out with him because he was fun. Unlike her mother’s evidence, she agreed she would jump on A.O.’s mattress with her younger sister and A.O. would get upset. A.O. and H were close and she wanted to be a part of their group. Both S.A. and Ms. O said A.O. had his own personal space in a corner and didn’t like people invading it. He also liked an arm-chair which sometimes would result in fights if she occupied it. Sometimes she would occupy the chair knowing it would start a fight. Ms. O said the conflict and tension happened “practically every day”. Despite the tension, S.A. insisted on spending time with AO. Towards the end, they tried separating the pair, which didn’t work.
30Ms. O said on a few occasions she saw inappropriate conduct between A.O. and S.A. For example, on one occasion, she explained A.O. was using his bathroom when S.A. tried to push open the door. She heard shouting and told them to stop. Another example was when A.O. was trying to get dressed. He was half-clad in a towel and S.A. was trying to pull at it. She scolded her about this. S.A. was asked about these two events but couldn’t recall if they happened.
31Ms. A confirmed the evidence of Ms. O that the kids liked to horseplay but differed on the state of their relationship. While Ms. O presented S.A. as being equally hostile, Ms. A said she was less hostile towards A.O. who in her mind was the clear aggressor. Ms. A did not see S.A. “bugging” A.O. or him becoming agitated. Like any mother might do, I find Ms. A attempted to minimize S.A.’s level of hostility towards A.O. Her evidence not only conflicted with S.A. who admitted she engaged in “annoying” conduct towards A.O. but also with Ms. O who said it happened almost every day. In the end, I don’t make much of this against her credibility because she admitted that towards the end, she took steps to remove her daughter from the home when she went out for errands. There’s no evidence this was due to perceived inappropriate conduct but instead due to escalating hostility and annoyance.
32In my view, I don’t see anything problematic with the relationship of A.O. and S.A. that might fix her (S.A.) with a motive to lie. While motive is relevant to credibility, it is not an element of the offence the Crown has to prove. Nor is there any evidence of a proven absence of motive to lie. Motive is a non-factor in this case. Equally, I don’t find any evidence of any heightened animus between the parties, which might translate into a credibility factor. That said, there is some evidence of animus vis a vis A.O. from Ms. A. because, towards the end, she harbored negative thoughts towards him. Maybe this was justified because he acted out and didn’t treat his cousin well. Unfortunately, children with autism can sometime be challenging for outsiders who can’t understand the diagnosis. In my view, the relationship between the parties is probative in understanding how Ms. A approached the issue of S.A.’s disclosure to her because she knew, as did the whole household, that A.O. was autistic and “acted out”. I agree with the defence that the way S.A.’s disclosure was revealed was unfortunate and not reliable because Ms. A asked pointed and accusatory questions implicating A.O., because of his relationship with S.A. It is an important consideration in this case.
F. The Alleged Sexual Assaults
32The defence position is that S.A. provided three accounts of the alleged sexual assaults, which detracts from her credibility. The first was to her mother, the second to the CAS worker and the third to the police. The defence says all were different which is a hallmark of an incredible account. In assessing S.A.’s evidence, I must do so based on her evidence in the courtroom, which includes the videotaped statement to DC Arnott on March 14, 2018, which she adopted, her brief examination in chief by the Crown and her extensive but fair cross-examination. Without getting into the specific defence arguments at this point, I will provide a brief summary of the three sets of allegations for some context. Consistent with DC Arnott’s approach, I will refer to them as the first and last incidents, with the repeated penile penetration occurring in between.
(i) The first incident
33SA claims she was playing in her room with her younger sister and AO. They were all playing and they all fell asleep. AO slept on the floor while she was on her bed. AO invited her to the floor and pulled down his pants. He placed her right hand in his pants and began to rub around. This lasted for 10 minutes. Her younger sister, H was still in the room. After he stopped, she got up and left. The defence says SA provided inconsistent evidence on dates and details.
(ii) The penile penetration
34S.A. claims A.O. would pull down her pants just above her knees and underwear and place his penis inside her pants. He would not insert his penis into her body but would rub it against her buttocks until it got wet. She explained he would pull her pants up with his penis inside it. This would always happen while standing up although once he wasn’t standing when it occurred in the bedroom. When asked how many times this happened, she said approximately 25 and it would last “maybe 10 minutes”. It happened “whenever he felt like it” and it would happen in different places in the home including near the front door and in the corner. The defence says this account is wildly improbable and inconsistent based on details she provided to her mother and the CAS worker.
(iii) The last incident
35Finally, S.A. claims that she was in her room with her brother S and A.O. When S left the room, he grabbed her hand and placed it on his penis until it got wet. The defence says this too is improbable and inconsistent with the evidence of others.
G. Boxing Day 2017
36S.A.’s disclosure of the alleged assaults to her parents was preceded with a visit to the O family in their new home on Boxing Day in 2017. S.A. said she was happy to see her cousins. The kids hung out in the bedroom upstairs. Unfortunately, A.O. continued to make mean comments towards her about her weight. She was hurt and began to cry. A.O. was told not to say these things but persisted.
37In cross-examination, S.A. admitted she watched a movie called Edge of 17 at A.O.’s house on Boxing Day. This movie has a restricted rating which means it’s meant for adults (18 and over) not children. She agreed the movie dealt with topics such as teen suicide, confidence issues, sexual content, bullying, swearing, losing one’s virginity, sexualized conversations, alcohol consumption, oral sex and the use of the word “penis”. She confirmed that her cousins saw her watching the movie and told her not to but she continued. She did not have permission from her parents. According to her, she told her mother she watched this movie afterwards but not prior to her disclosure about the assaults. The defence says this movie created a “perfect storm” in which to invent false sexual accusations against A.O.
H. S.A.’s Disclosure to her Mother
38S.A. admitted that after she got home from the Boxing Day festivities, she exchanged text messages with her friend related to the sexualized content of the movie. There is a factual conflict in the evidence because Ms. A testified she intercepted these messages on her iPad as she didn’t set up her daughter’s device properly. She was able to view these messages, which she said dealt with more benign issues related to SA’s weight, confidence and bullying. She did not say they were sexual in nature. Respectfully, I cannot accept this because it is in stark conflict with S.A.’s evidence which was clear that the texts involved sexualized content from the movie. It may be that they also involved bullying and related issues but the important point she left out was the sexual content of the texts. SA was crystal clear that the texts involved more than just bullying and her weight. This is not a case where the defence elicited this evidence by tricking S.A. Ms. Bojanowska was very careful in suggesting this evidence to her which she adopted. S.A. is a smart and equally careful teenager. I find that the texts she exchanged with her friend had sexually inappropriate content because Ms. A was so alarmed she immediately summoned S.A. to her room where her father was also present. I did not hear from her father at trial but S.A. confirmed that she knew she was in trouble because her father was also present.
39S.A. confirmed she did not want her parents to think negatively of her. She had never talked about “sexual stuff” with her parents and she was embarrassed. This is totally understandable. She wanted the interrogation from her mother to end. Also understandable. She wanted to return to her room and go to sleep. That didn’t happen. Instead, S.A. was questioned by her mother. There’s no evidence that her father left the room and this became a private conversation. S.A. did not say the conversation was about A.O. bullying her but instead her mother asked if A.O. had ever done anything sexually inappropriate towards her. This is curious because S.A. admitted in cross-examination her texts, in whatever format, never referenced A.O. and she never volunteered A.O.’s name until her mother suggested it. The evidence establishes that Ms. A also didn’t suggest the names of her other male cousins or boys. It was just A.O.
40In any event, S.A. responded yes to the suggestion of A.O. touching her inappropriately and proceeded to tell her mother “everything” which the defence argues did not include significant details of the alleged abuse.
41S.A. denied the direct accusation put to her by the defence that she invented the allegations to get out of the situation with her mother. She confidently said no. I will assess this evidence in the context of all the evidence below. Finally, she admitted she never told her mother at that moment she watched Edge of 17 but said she did divulge this later on. It’s unclear when.
42Ms. A confirmed she suggested the name of A.O. to her daughter by asking her if he inappropriately touched her. S.A. told her yes and when she asked where, she said “under her shirt and [he] put [his] hands in [her] pants”. She asked for more details and none were forthcoming. She also asked if he had gone further and she said no, which is different from the evidence of S.A. who said she told her “everything”. S.A. told her it was “multiple times” (not stating 25) and but couldn’t recall an exact number. She said it was during the beginning of Grade 5 (fall of 2016) and ending before her birthday. She said it did not continue up until the point of them moving out in November 2017. This too conflicts with S.A.’s evidence to the police.
43Finally, S.A. told her later (not during the bedroom interrogation) that A.O. would touch her in the basement while he was changing after school. On this topic, Ms. O said S.A. was not specifically prohibited from going into the basement but the kids were encouraged not to if they knew the boys were changing. For example, it was not uncommon even after the family discord to send S.A. or H downstairs to get a snack from the O family’s pantry.
I. The Confrontation and A.O.’s Denial
44Ms. A said after S.A.’s disclosure, she called Ms. O who immediately confronted her son with her eldest in the room. A.O. denied any sexual abuse. She drove over to the A residence within the hour. When the parents asked S.A. to come downstairs, S.A. confronted him directly stating: “I didn’t like what you did to me. You touched my breast and under my pants and I didn’t like it”. A.O. responded he didn’t know what she was talking about. There was no mention of any touching incident in a bedroom and there’s no evidence that A.O. was also accused of repeated penile penetration.
45S.A. and her family did not report the matter to the police because Ms. A and her husband determined it was not in her best interests. That is understandable. Ms. A wanted to get her some help but didn’t know what to do. Some time later, she attended a pre-teen seminar at her school and recognized she was having trouble in math. Ultimately, she spoke to her teacher and principal and explained that she had been abused. The principal advised it was school policy to report any abuse to the CAS, which they did. A couple days later, a male CAS worker attended at their home and spoke to the family, including S.A. The content of this conversation, which S.A. recalled and adopted as true, was the subject of a defence argument related to inconsistency, which I will also address below.
J. The CAS Visit, Police Statement and Arrest
45Finally, Ms. A said she was later called by the police after the CAS interview. She didn’t know who called the police but suspected it was the CAS worker. S.A. provided a videotaped statement while her parents waited outside the interview room. A.O. was charged accordingly.
IV. ANALYSIS
46I will now turn to the credibility evaluation and address the arguments of the parties.
A. Overall Impression
47In my view, S.A. presented as a calm, confident but shy witness both during her videotaped statement to DC Arnott and while testifying via CCTV. It did not appear she had difficulty understanding questions as both counsel were fair in avoiding complicated or compound questions. Despite my positive impression of her, I am not permitted to use this as a makeweight on the credibility scale. Cases have cautioned that intangible factors such as tone of voice, appearance and general manner could easily deceive a trier of fact.
48In assessing S.A.’s evidence, I must stay focused on the substance of her account. The challenge in sexual assault cases is avoiding the knee jerk reaction of asking why would a child invent serious criminal allegations – let alone against her cousin. This is legally improper because it reverses the burden of proof. A.O. started the trial as innocent not guilty. The correct question to ask in law is whether the admissible evidence lead at trial establishes A.O.’s guilt on either count beyond a reasonable doubt. My task is to evaluate all the evidence, not just S.A’s. The fact that A.O. didn’t testify is therefore of no moment. I have to assess the strengths and weaknesses in context of all the evidence as a whole. I must do so by using criteria that is appropriate to S.A.’s mental development, understanding, and ability to communicate: W.(R)., supra; R. v. Keeper, [2000] O.J. No 1407 (C.A.). I found S.A. to be an intelligent and communicative witness. She was 13 at the time of testifying and while shy, she presented as mature. She did not appear to me to be confused by the questions, which were fairly presented. While she agreed with many suggestions, where appropriate, she also disagreed with some which tells me she understood the questions and was not afraid to answer them accurately. For example she denied she invented the allegations.
49I am satisfied that S.A. understood the importance of telling the truth. Indeed, unlike other videotaped statements, DC Arnott should be commended for returning to this issue often in his interview.
50For reasons that I will now explain, when I consider the Crown’s heavy burden of proof, I have concluded that the evidence in this case does not establish A.O.’s guilt beyond a reasonable doubt on either count. This does not mean that I have found that S.A. deliberately lied to the police, her mother, the CAS worker or ultimately to the court. It simply means that I agree with the defence that the burden of proof was not met and the only fair verdict on this record is to find A.O. not guilty. I have arrived at this decision largely because of the combined impact of the material inconsistencies in the account of S.A., evidence which makes the account of the repeated penile penetration improbable when viewed in context and assessed as a whole and the overall unreliability of how the account was disclosed and took shape thereafter. Unfortunately this created a tainted and unreliable account. For these reasons, the evidence does not prove the guilt of A.O. on any count and he will be found not guilty. I will now explain why the evidence only leads to this conclusion. I will start with the tainted disclosure.
B. The tainted disclosure and reliability
51While the Crown properly argued against any arguments about delayed or incremental disclosure, this is not a case about either. In D.D. Justice Major at para. 65 wrote: “[A] delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant”. In R. v. K. (L.), 2011 ONSC 2562, Justice Trotter held at para. 24 that the principles in D.D. apply with equal force to incremental disclosure, which relates to disclosure of abuse that gets revealed in a piecemeal fashion. He held this is merely a type of delayed disclosure. Ms. Bojanowska did not invite adverse credibility findings against S.A. because of either issue. I have guarded against this as well. Instead, her argument went beyond incremental disclosure and focused on the circumstances (not timing) of the disclosure, which she said created a “perfect storm” to create a narrative of an unreliable accusation to a suggestible child.
52On this record, there is merit to this position. In R. v. C. (H.), 2009 ONCA 56, at para. 41, Justice Watt explained there is a difference between credibility, which addresses the honesty of one’s account and reliability, which addresses the accuracy of one’s account. Accuracy engages the ability to recall, observe and recount the event. Watt J. noted "[c]redibility ... is not a proxy for reliability: a credible witness may give unreliable evidence": H.C., supra, at para. 41; R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 526. Here, the substance of S.A.’s disclosure is inextricably tied to the manner in which it came out to her mother. The evidence establishes that the topic of inappropriate sexual touching by A.O. was suggested to S.A., which she acknowledged. In this way, the initial disclosure is tied to S.A.’s reliability because it was not something she offered on her own but rather, it was suggested to her. It would be a legal error for me to focus squarely on the sincerity of her account to her mother (a credibility issue) without also examining it’s reliability: R. v. Slatter, 2019 ONCA 807, [2019] O.J. No. 5073 (C.A.) at paras. 61–64. The context is critical because S.A. admitted the disclosure was immediately preceded by her watching an explicit movie that she was not allowed to watch and after exchanging sexualized content over text message with her friend, which was not intended to be seen by her mother. This informs her state of mind when confronted by her mother, which in turn informs the answers she gave to a suggestive question of whether A.O. was touching her inappropriately. There is no dispute in the evidence that Ms. A asked her a pointed question of whether she was being touched inappropriately by A.O. I find S.A. knew “inappropriate” meant sexual and not something else such as bullying. I say this because the question is tied to being summoned to her parent’s bedroom to respond to inappropriate sexual texts with a friend.
53It would be wrong for me to simply ignore the context in which S.A. confirmed her mother’s question by admitting she was being inappropriately touched by A.O. It is no different than if DC Arnott or Crown counsel put words in the mouth of S.A. if she was testifying in a courtroom. A trier of fact could decide to give less weight to the evidence because a hallmark of reliability is asking open-ended questions to allow a story to unfold on its own. This may matter less in cases where there is a very young, vulnerable or less impressionable witness who had trouble communicating, but here, S.A. was a smart and mature 11 year old who knew she was in trouble and testified she wanted to get out of her difficult predicament. At the time of trial, she had matured to a 13 year old who had no trouble communicating her evidence. A tainted account is relevant to a credibility assessment and must be assessed along with other factors: R. v. Burnie, 2013 ONCA 112 at 41; R. v. M. (O.), 2014 ONCA 503, at paras. 84-94. I find the circumstances of the disclosure created a very realistic and not just speculative possibility of a tainted and therefore less reliable account.
54S.A. was directly challenged on this point because Ms. Bojanowska put to her that she invented the allegation of sexual touching to get out of the confrontation with her mother. She said no. This answer makes sense because if the defence theory is true, it was her mother who suggested the criminal allegation, which S.A. simply agreed with. I have been extremely careful in assessing this evidence because at the end of the day, my role is to assess S.A’s evidence as a whole, not just to her mother. She provided an account to the police while understanding the importance of telling the truth. I am mindful of what the Crown reminds me that just because her mother teased it out of her doesn’t necessarily mean it cannot be true. While the Crown is right, I still have to assess the honesty of the account against the circumstances in which it was disclosed.
55Ms. Cook also argued that the court should be cautious about any defence arguments about incremental and delayed disclosure and its impact on S.A.’s credibility. In R. v. P.(D.), 2017 ONCA 263, the Court of Appeal did not accept the argument that there is a difference between delayed disclosure and piecemeal disclosure of prior sexual abuse. The court held that the comments in D.D. are potentially applicable to both, depending on the circumstances as revealed by the evidence in the case. Respectfully, this misses the defence argument, which was advanced as an attack based on the substance of the disclosure and how it arose, not on the timing, which I agree would be irrelevant.
56As I understood the defence position, the only real attack on the credibility of S.A.’s disclosure was the lack of any disclosure to the CAS worker. The defence argued S.A. never disclosed anything at all to the CAS worker when presented with an opportunity to discuss sexual impropriety. This was after her disclosure with her mother but prior to speaking to the police. S.A. was asked about this and said she didn’t like talking to strangers. I accept this explanation because she was asked about something private when her family was present. The defence says this explanation should be rejected because she was less reluctant when speaking to a police officer, also a stranger. With respect, this misses the point. The police interview was in private. In the end, I don’t make anything of her lack of disclosure to the CAS worker. It does not impact her credibility.
56Overall, I find that the circumstances of the initial disclosure involved a real possibility that Ms. A unwittingly (or wittingly) conflated A.O.’s known bullying with suspected sexual impropriety and S.A. agreed given the context. To be clear, I do not fault Ms. A, who might have acted as a concerned mother but I would have expected that any reliability concerns going to the substance of the allegations would have been addressed in the courtroom, but regrettably, they were not. I cannot ignore this factor in my overall assessment of the Crown’s burden of proof: Slatter, supra, at para. 67.
C. Material inconsistencies and credibility
57In my view, the stronger defence argument relates to the alleged inconsistencies in the evidence of S.A. As a matter of law, inconsistencies on minor matters of detail are to be expected and don’t generally affect the credibility of the witness. However, where the inconsistency involves a material matter in which an honest witness is unlikely to be mistaken, the inconsistency can “demonstrate a carelessness with the truth”: R. v. M.G., 1994 CanLII 8733 (ON CA), [1994] O.J. No. 2086 at para. 23. In R. v. Stewart (1994), 18 O.R. (3) 509 (Ont. C.A.) Justice Finlayson at pp. 519-520, reminded that the trial judge should look at the totality of the inconsistencies in order to assess whether the witness’s evidence is reliable. This is particularly so when there is no supporting evidence on the central issue.
58The above guidance must be taken in context of this case, which involves the evidence of children. In W.(R.), supra, the Supreme Court reminded that it would be wrong to apply an adult standard to inconsistencies. Instead, the law requires trial judges to assess the intelligence, maturity, experience and cultural background of the child, then decide whether any of the alleged inconsistencies or inaccuracies in the evidence are of significance given the witness’s background that is before the court. However, the mere fact that the witness is a child does not mean that inconsistencies or inaccuracies lose their significance. It is incumbent on the trier of fact to consider the evidence as a whole in the context of the child’s evidence: R. v. Horton, 1999 BCCA 150, [1999] 133 CCC (3d) 340 at 348 (BCCA).
56In submissions, Ms. Bojanowska identified nine alleged material inconsistencies in S.A.’s account, which she argues impacts her credibility. These were alleged differences between her versions of the allegations she told her mother, the police and the CAS worker. The defence also pointed to material omissions, which are described as significant parts of the account that were left out to various parties. The law is clear that omissions can carry the same weight as inconsistencies when it comes to assessing credibility: R. v. W.R.P. (2007), 2007 ABCA 187, 220 C.C.C. (3d) 519 at para. 11 (Alta.C.A.). However, a significant omission can lose its impact if it’s adequately explained by the witness: R. v. François, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827 at para. 21. The Crown did not make detailed submissions on these specific points and instead submitted S.A. provided a credible and compelling account. I do not know if this means the Crown conceded there were material inconsistencies.
57I will not assess all the alleged inconsistencies as the law does not oblige me to do so: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 17. Instead, I will focus on the important ones, which impacts the question of credibility: R. v. D.H., 2016 ONCA 569, 338 C.C.C. (3d) 251, at para. 35. Many of these inconsistencies arose between the accounts of S.A. and her mother, Ms. A. It is noteworthy that Ms. A testified before S.A., which is somewhat unusual. After considering the evidence as a whole, I agree with the defence position that there are material inconsistencies on this record that were not explained which impact the Crown’s burden of proof. I will highlight the following:
(i) Ms. A testified that when she first asked S.A. where A.O. touched her, she responded: “under her shirt and put hands in pants”. She asked for more details and S.A. said nothing else. Importantly, she was clear that she asked if A.O. had gone further and she said no. This is fundamentally different from S.A.’s evidence. First, in her evidence to DC Arnott, she was specifically asked what she told her mother during the initial disclosure and she responded: “I said he would touch me in ways I wasn’t comfortable with and she asked me how and I told her what I told you today”. When DC Arnott pressed her for details, she said her mother asked where was the first time it happened and she told her in the bedroom with her sister when they were playing and he would put his hand in his pants and she also told her mother that he would put his penis in her pants. S.A was challenged on this inconsistency and said she recalled telling her mother more but this was not recalled by Ms. A. I find she did not tell her mother more. In my view, this is a significant inconsistency because I would expect Ms. A would not have just forgotten about a significant detail of a more invasive sexual assault of A.O. placing his penis in her pants. It was more than just putting a hand in his pants. The Crown says Ms. A might have gotten it wrong because she didn’t take notes but conversely there’s no evidence she didn’t memorialize what her daughter told her. In any event, I don’t think Ms. A would easily forget what she was told. She had months before the trial to think about it as well. This isn’t just a minor mince of words – it’s an inconsistency between two accounts. If there was confusion, it wasn’t clarified because S.A. was asked on the second day of testifying in chief what she told her mother and she responded “I told her what I told you yesterday” which suggests the contents of her videotaped statement which is different from the account of her mother. So, while she was consistent with her video, she remained inconsistent with her mother. She also confirmed again the video was accurate.
(ii) S.A. was internally inconsistent based on her description of the first incident in her bedroom. S.A. testified she was being truthful when she told the police that the first incident was in the end of August 2017. It was during the day when she was in her room with her sister H and A.O. when they fell asleep for a “daytime nap”. A.O. fell asleep on the floor and she was on her bed. He invited her to touch his penis in his boxers, which she did for 10 minutes. She woke up her sister and went downstairs to watch TV. This differs from Ms. A’s evidence who testified S.A. told her it happened at night when she got up to use the bathroom and upon returning she was invited by him to touch his penis. I accept as well that she told her mother it was a “few kids” not just H and A.O. While the “few kids” detail is less important she was clear that it was at night, not during the day. I find she clearly knew the difference between the time of day and this was an important difference;
(iii) S.A. was also inconsistent on the timing of the alleged events. She told the police that the first incident was in August 2017, which she said was the truth. Ms. A testified when she asked her when it started she was told the beginning of grade 5 which was the fall of 2016. S.A. denied telling her mother this detail, which I cannot accept because her mother would have no reason to invent this detail or be mistaken. I find this to be an important inconsistency because it represented the first event that one would not easily forget. It is not just a minor or insignificant issue with a date that a child might be mistaken confused about because on the police version the sexual activity lasted 3 months whereas the version to her mother it lasted over 1 year. This too was not clarified in the evidence which leaves an important gap;
(iv) Similarly, there is an inconsistency about when the alleged abuse stopped. Ms. A testified S.A. told her it ended before October 2017 and never told her that it continued up until November 2017 which is different from S.A.’s evidence to the police where she confirmed it was right up until A.O. moved out in November 2017. This too is important because one would not easily forget the last event. While children might be prone to forget details of dates, I find the first and last incident would be more important as dominant in one’s memory;
(v) S.A. was asked by DC Arnott to explain the circumstances of the sexual assaults and did not initially tell him that A.O. would touch her under her shirt. It was only later on she said A.O. touched her breasts under her bra at the same time he would touch his penis on her buttocks. The defence says this is a material omission because it was left out of the first rendition and only came to light later. While this is technically true, on its own, I don’t see this as an important omission even though one would expect not to miss this if a more invasive assault is being described. I do however share a concern about the reliability of this account because S.A. said “Um, I think … I’m pretty sure like he … I think.. I’m not sure if it happened more than once, but I think once or twice he put his hands up my shirt”. Unfortunately DC Arnott put words in her mouth and got her to agree that sometimes his hands would be on her hips and sometimes his hands would be on her breasts – when she said “hands up my shirt”. In my view, this also impacts the reliability of this omission which on its own means little but when added into the all the evidence as a whole becomes more important.
D. Implausibility and credibility
58The defence also argues that S.A.’s account should be discredited because the allegation when viewed in context is implausible. A credibility evaluation can be impacted by testing the account against when and where the alleged event(s) took place to determine if it (or they) was implausible: R. v. R.H.A., [2000] OJ No. 2610 (CA). I find this argument to have merit as well for the following reasons:
(i) There is evidence that the household was busy with three adults (on occasion four) and five children;
(ii) Ms. A testified as of November 2016, she was home, for about 11 months, and not working and kept a watchful eye on her children because of A.O.’s bullying. Her husband worked part-time thus he was home during the day for periods of time as well;
(iii) Ms. O testified A.O.’s autism diagnosis meant he didn’t like to be touched. While he engaged in horseplay, Ms. O didn’t say he was impulsive which might mean he engaged in touching without thinking. He was repetitive in the sense he would exchange verbal insults with the children and in particular anybody he felt was annoying. This included S.A. When I consider this evidence along with S.A.’s account that she was repeatedly touched, which lasted for “maybe 10 minutes”, I have some concerns because 10 minutes is a significant amount of time. It was not just quick and invasive touching. I have considered whether S.A. maybe got this wrong and perhaps guessed it was 10 minutes when it might have been less, but that’s not the evidence. She was never asked about this and told the police confidently it was 10 minutes. Moreover, I return to her smart disposition and mature age. I find she did not just embellish timing which is hard to reconcile with a busy and full household;
(iv) S.A. testified the penile penetration, which I find is the most invasive type of sexual activity alleged happened about 25 times. This too is a significant amount of activity in the context of a busy and full home. I accept the unchallenged evidence of Ms. O that towards the end, A.O. was volunteering at a woman’s shelter and came home around 6-7 pm which would narrow the window of engaging in a 10 minute invasive sexual assault without detection. I am reminded that sexual assaults can and often take place in scenarios where there is a high risk of getting caught but I have to assess the evidence in context of all the factors. In T.G., supra, the acts which lead to this kind of self-instruction by the trial judge were brief in nature where defendant could quickly cover himself up if somebody walked in. S.A. was clear that the incidents would last 10 minutes, which is not brief and cannot be overlooked.
59This credibility lens on the penile penetration allegation began with a problem of reliability during the videotaped statement. Respectfully, the manner in which DC Arnott elicited the account of the alleged penile penetration was not ideal. In my view, this impacts the reliability of the account because the original account provided by S.A., supports a strong finding that DC Arnott also felt it was improbable until he suggested to her certain facts to leave a more reliable account. Understandably, the defence did not explore this issue in detail but did elicit from S.A. other details which made the account even more problematic including that all instances of the penile penetration happened in open spaces in the house where anybody could have walked in without notice and occurring at random times. S.A. also adopted that the entire sexual interaction would occur in silence. The account of the penile penetration was not clarified or explored further in chief.
60Like Ms. A, DC Arnott fell into the same trap of suggesting information to S.A., which impacts my assessment of S.A.’s reliability on this allegation. S.A. described the allegation by explaining that A.O. would pull her pants and underwear down and place his penis against her bare buttocks but not insert it in her body. He would then pull her pants up and begin to rub against her buttocks until he was wet when he would stop. DC Arnott was not satisfied with this explanation. I don’t know why because he never testified. He said:
DCA: All the way up? So how can he pull your pants all the way up if his penis is inside your pants? Do you understand what I’m s --… trying to … Like … So either something different has happened or it happened a little differently. I just need you to sort of describe it a little bit better for me. So his penis is inside your pants or your underwear and he pulls his pants up with his penis in there, or sorry, he pulls your pants up with his penis in … in your underwear, but where it normally sits and your pants come to where it normally sits?
SA: Not all the way.
DCA: I’m sorry?
SA: Not –
DCA: Not all the way?
SA: No.
DCA: So he can’t really pull your underwear and your pants back up to where they normally sit can he?
SA: No.
DCA: Okay. So am I right there that he – Uh so the pants and underwear come down just above the knees, he puts his penis inside and pulls your pants and underwear up to make a snug fit, and then what happens?
SA: And then he moves back and forth.
DC Arnott also challenged her on her evidence that he would pull her pants down “not all the way”. He later said: “… if your pants are down around your knees, is his penis really in your pants?” This led to the following exchange:
SA: Then he pulls them back up, he pulls my pants back up.
DCA: After he’s finished or while he’s …
SA: While he’s doing it.
DCA: While he’s doing it. Okay. So let’s slow that down a little bit, okay? He comes from behind you, he pulls your pants and underwear down to your knees, just above your knees, and then what happens?
SA: And then he [goes in my pan--] … or he puts his penis and pulls them all the way up.
DCA: So he … pulls them up a bit more and puts his penis where exactly?
SA: In my underwear.
DCA: In your underwear, okay. And then pulls his pants up, your pants up more? So.
SA: All the way up.
On the basis of the above, S.A. was clear that A.O. would pull her pants all the way up after placing his penis inside her pants and ostensibly against her buttocks. These were specific words chosen by her even though many words were suggested to her by DC Arnott, that she adopted. It is not uncommon for police officers to attempt to clarify an interviewee’s evidence but when this is done it must be done with great care to avoid misapprehending one’s evidence and suggesting something else. While I don’t know for sure, I can reasonably infer that DC Arnott tried to make sense of the account because he realized it would be difficult for A.O. to have his penis inside her underwear if her pants were pulled all the way up. I don’t know if he was confused or he confused her but when viewed as a whole, I cannot be satisfied that she reliably provided credible evidence about the circumstances of the penile penetration. The evidence left by S.A. is different from what the Crown implores me to find, namely that her pants were left above the knees making it possible for him to place his penis in her underwear. That is not the evidence, and it was never clarified in the courtroom. I simply can’t be sure what - if anything happened during these repeated instances of penile penetration.
61To repeat, the suggestibility of a witness is an important factor that goes to reliability. For example, in Slatter, supra, the Court of Appeal considered a case in which an adult was convicted of sexual offences involving an intellectually disabled victim. Like this case, the defence position was that the complainant was a suggestible witness who gave an implausible account. Trotter J.A. held that the trial judge committed reversible error when he failed to meaningfully address the complainant’s reliability based on suggestibility. It was an error for the trial judge to isolate the complainant’s evidence without assessing her reliability. Here, while I don’t have any expert evidence on the issue of S.A.’s suggestibility as a witness, the issue is firmly grounded in the evidentiary record. Not only does the above exchange with DC Arnott bear this out, but so does the initial disclosure where Ms. A. asked a suggestive question which she adopted. In the circumstances, I am left with reliability concerns of S.A.’s evidence, which were left unexplained and not addressed.
62In the final analysis, and considering the evidence as a whole, on the penile penetration allegation, I am left with an implausible account when I assess this in context of lasting 10 minutes and occurring 25 times in an open space within a full house. S.A. was clear about these details and she testified as a mature 13 year old. I cannot simply ignore these details because S.A. was articulate and smart, not a child who was prone to embellishment. I do not know if S.A. became confused because she was shy and talking to a male police officer or she was giving an implausible account, which an experienced sexual assault detective was testing. This is simply another factor that I must consider in the overall credibility evaluation.
E. After the fact conduct
63The final argument raised by the defence involves the repeated and desired contact with A.O. after the alleged assaults and in particular, on Boxing Day, so after A.O. had moved out. The defence says this suggests the preceding sexual assaults (as they ended prior to this) were improbable. Respectfully, I find this argument to have less merit because this can invite reasoning about how a sexual assault complainant should behave after the fact. While Ms. Bojanowska made a more nuanced and careful argument avoiding the stereotypical line of reasoning in “avoidant behavior”, I don’t make much of this contact because the context is S.A. and A.O. were cousins who were close in age. She didn’t choose to attend his house on Boxing Day with her parents and it is no different than a child who continues to engage with close family after being sexually assaulted. See Cepic, supra. It is dangerous to engage in common sense type arguments in this context and I refrain from doing so. In the end, the resolution of this case doesn’t really turn on this argument.
V. CONCLUSION
64When I assess the evidence as a whole, I return to the Crown’s heavy burden of proof. On this evidentiary record, I can’t be satisfied that the Crown has discharged their burden of proof. The overall credibility of S.A.’s account was impacted by an unreliable and tainted disclosure. There were significant and important inconsistencies in the accounts and given the context, the penile penetration allegation presented as implausible. This is not a case where S.A. provided a compelling and credible account that proves A.O.’s guilt beyond a reasonable doubt relying on the JJRD principle. Nor is this a case where the defence is asking the court to resolve a credibility dispute based on generalizations and myths. I have evaluated the evidence based on the substance of what was claimed. I simply cannot be sure that A.O. did the sexual things S.A. claims he did. For these reasons, it would be unsafe to convict him of any offence on this evidence. Accordingly, A.O. will be found not guilty of all counts.
65I would like to thank counsel for their professionalism in what was a difficult case.
Released: December 13, 2019
“Signed: Mr. Justice F. Javed”