WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

DATE: 2021 06 28 COURT FILE No.: Hamilton Information No. 20-3434

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

G.M.

Before: Justice J.P.P. Fiorucci Heard on: February 22 and 23, 2021 Reasons for Judgment released on: June 28, 2021

Counsel: C. Hopkins, counsel for the Crown L. Wilhelm, counsel for the Defendant G.M.

FIORUCCI J.:

Introduction

1The accused, G.M., is S.M.’s grandfather. G.M. is charged with Sexual Assault and Sexual Interference for allegedly having touched S.M.’s breasts and vagina under her shirt and pants on three occasions between May 1, 2014 and December 31, 2019 when S.M. was between 6 and 12 years old.

2G.M. entered not guilty pleas to both charges. S.M. was 13 years old when she testified at the trial. She was the lone Crown witness. G.M. did not testify. However, the Defence called two witnesses to testify about S.M.’s initial reporting of the abuse. I must determine whether the Crown has met its burden of proving the charges beyond a reasonable doubt.

Overview of the Evidence

3S.M. initially reported the abuse on February 26, 2020 at school. She provided a video statement to Detective J. Moore of the Hamilton Police Service on March 5, 2020 (the “s. 715.1 statement”). This statement was admitted pursuant to section 715.1 of the Criminal Code and became part of S.M.’s evidence-in-chief. S.M. told the detective that her grandfather sexually touched her more than once, but that the time she remembered the most was the last time it happened, which was in the basement of her grandfather’s house in November of 2019 when she was in grade 7. She was still in grade 7 when she provided her s. 715.1 statement.

4S.M. described the November 2019 basement incident during her s. 715.1 statement. However, S.M. was emotional and crying during portions of the statement and was having difficulty saying the names of the body parts her grandfather touched. Detective Moore gave S.M. some paper and asked her to write down the details she remembered about the basement incident. S.M. wrote that when her grandfather’s hand was up her shirt, he touched her breasts and when it was down her pants it was her “vegina.” [1]

5During the s. 715.1 statement, Detective Moore asked S.M. about the other times the sexual touching happened. S.M. said the other times happened in other grades, not just grade 7. When the detective asked her what other grades, S.M. could not remember. When Detective Moore asked S.M. if she could tell him about any of the other times the touching happened, she said she did not remember the details of other incidents but did say that the touching was always the same.

6The trial was held on February 22 and 23, 2021. On February 22nd, while Crown counsel was still examining S.M. in-chief, Crown and Defence counsel jointly sought a ruling with respect to the admissibility of evidence.

7On February 11, 2021, approximately two weeks before the commencement of the trial, S.M. provided another video statement to Detective Moore. In this new statement, S.M. provided details of two other incidents that happened before the November 2019 basement incident. S.M. alleged that these two prior incidents occurred on the patio and in a bedroom of G.M.’s home. The patio and bedroom incidents that S.M. discussed in her February 11, 2021 video statement involved identical allegations of G.M. touching S.M.’s breasts and vagina.

8Crown and Defence counsel sought a ruling from the Court as to whether the patio and bedroom incidents were admissible in the trial. After hearing and considering counsels’ submissions, I ruled that the Sexual Assault and Sexual Interference charges were comprised of a series of incidents of ongoing abuse, including the patio and bedroom incidents, and that the disclosure G.M. had received provided sufficient information to enable him to defend the two charges he faced. I provided the reasons for my ruling on this issue orally on February 23, 2021.

9G.M. did not seek an adjournment of the balance of the trial following my ruling. The trial proceeded as scheduled, and S.M. gave evidence about these newly disclosed patio and bedroom incidents and was vigorously cross-examined by Defence counsel about the circumstances of her recent disclosure and about the details of these additional incidents.

10At the conclusion of S.M.’s evidence, the Defence consented to an amendment of the offence dates to conform with S.M.’s evidence. The original timeframe of January 1, 2018 to December 31, 2019 was amended to span the dates of May 1, 2014 to December 31, 2019. The Crown closed its case and the Defence called S.M.’s teacher and the principal of her school to testify about the circumstances of S.M.’s initial report of abuse.

Positions of the Parties

11Defence counsel contends that S.M.’s evidence is neither credible nor reliable but focuses primarily on deficiencies in the reliability of her evidence. The Defence says the allegations of sexual touching are so completely devoid of detail as to make them unreliable, and points to inconsistencies and contradictions in S.M.’s evidence that make it unsafe to convict based on her uncorroborated testimony. Cross-examination exposed deficiencies in S.M.’s memory, leading S.M. herself to admit that her memory of the events is poor. Defence counsel relies on discrepancies between S.M.’s evidence and the evidence of her teacher and the principal regarding the events of February 26, 2020 as a further indication of the unreliability of S.M.’s evidence. The delayed and incremental disclosure of the abuse provides yet another basis to approach S.M.’s evidence with caution says the Defence.

12The Crown submits that S.M. gave credible and reliable evidence regarding the sexual touching by her grandfather, G.M.. Some of the inconsistencies in her evidence are on peripheral matters and do not affect the credibility and reliability of her account of ongoing sexual abuse by her grandfather. The Crown says that certain other inconsistencies were adequately explained by S.M. and the Crown urges me to accept her explanations as reasonable especially when viewed in the context of a child witness testifying about traumatic experiences. The Crown says that the delayed and incremental disclosure in this case does not affect the credibility of S.M.’s testimony. S.M.’s evidence provides a solid foundation for a verdict of guilt on the charges.

Legal Principles

The Crown’s Burden of Proof

13The accused is presumed innocent and that presumption can only be displaced if his guilt is established beyond a reasonable doubt by the Crown. I must instruct myself in accordance with the criminal standard of proof set out by the Supreme Court of Canada in R. v. Lifchus, [1997] 3 S.C.R. 320. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. It is not sufficient to believe that the accused is probably guilty or likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so because such a standard of proof is impossibly high.

Principles related to Children’s Evidence

14The Supreme Court of Canada’s decisions in R. v. W.(R.), [1992] 2 S.C.R. 122 and R. v. B.(G.), [1990] 2 S.C.R. 30 provide guidance on the manner in which trial judges ought to approach the credibility and reliability of children’s evidence. This task requires the judiciary to “take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults.” This does not mean that the courts should not carefully assess the credibility of child witnesses, nor that the standard of proof is lowered when dealing with child witnesses. Rather, “a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult.”

15In R. v. B.(G.), Wilson J. noted the development of a benign approach to children’s evidence, while cautioning that the credibility of every witness must be carefully scrutinized:

While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children.

16In R. v. W.(R.), the Court expanded on the development of the law regarding the assessment of children’s evidence:

One finds emerging a new sensitivity to the peculiar perspectives of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection.

17The Court went on to caution that “[p]rotecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child.” The careful assessment of children’s evidence on a common sense basis must take “into account the strengths and weaknesses which characterize the evidence offered in the particular case.” Every witness who gives testimony in court, regardless of their age, “is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate.”

The Distinction between Credibility and Reliability

18There is a distinction between the credibility of a witness and the reliability of the witness’s testimony. Credibility problems relate to a witness who “is intentionally offering, in whole or in part, entirely false, exaggerated, or minimized information.” Credibility “addresses whether the witness is lying.” Problems with the “reliability” of evidence relate to an honest witness who “is inadvertently offering inaccurate information.”

19Doherty J.A. described the distinction between credibility and reliability in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.):

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable.

Inconsistencies in the Evidence of Young Complainants

20In R. v. C.C.F., [1997] S.C.J. No. 89, the Supreme Court of Canada noted:

A skilful cross-examination is almost certain to confuse a child, even if she is telling the truth. That confusion can lead to inconsistencies in her testimony.

21In R. v. Toten (1993), 83 C.C.C. (3d) 5 (Ont. C.A.), a case involving a challenge to the constitutionality of s. 715.1 of the Criminal Code, Doherty J.A. noted “barriers to effective truth-finding” that exist in the traditional adversarial model in cases involving young complainants, including the following:

25 Secondly, most young complainants are questioned about the relevant events several times by various persons before they eventually testify at trial. The questioners may intentionally or inadvertently make suggestions to the complainant concerning those events. Young complainants, particularly children, are susceptible to such suggestions when they come from persons the complainant identifies as a friend, authority figure, or supporter. By the time the complainant testifies, his or her evidence may have been contaminated by these suggestive questions to the point that the complainant cannot distinguish between what he or she actually remembers and what has been suggested to him or her during the questioning process.

26 Thirdly, the actual trial setting and procedures can confuse and intimidate or, worse yet, traumatize the complainant. As a result, the complainant may have difficulty remembering or recounting in a coherent and complete way the events as he or she believes them to have occurred.

22These passages from R. v. C.C.F. and R. v. Toten do not permit a trier of fact to dismiss inconsistencies in a child’s evidence as merely the product of an adversarial process that is ill-equipped to adequately test the reliability of a young person’s evidence. The existence of one or more inconsistencies in a witness’s evidence requires the trier of fact to examine the totality of the inconsistencies in order to determine whether the witness’s evidence is reliable.

23As Rowles J.A. explained in R. v. B.(R.W.), [1993] B.C.J. No. 758 (B.C.C.A.):

In this case there were a number of inconsistencies in the complainant’s own evidence and a number of inconsistencies between the complainant’s evidence and the testimony of other witnesses. While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness’ evidence. There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least the trier of fact should look to the totality of the inconsistencies in order to assess whether the witness’ evidence is reliable. This is particularly so when there is no supporting evidence on the central issue, which was the case here.

24In R. v. M.G. (1994), 93 C.C.C. (3d) 347 (Ont. C.A.), Galligan J.A. cited R. v. B.(R.W.) and pointed out the importance of assessing the significance of inconsistencies:

I do not think the principle is different whether there is one or several inconsistencies. What is important is the significance of the inconsistency. If the inconsistency is a significant one then the trial judge must pay careful attention to it when assessing the reliability of the witness's testimony.

25In R. v. W.(R.), the Supreme Court of Canada noted that with regard to a witness’s evidence about events which occurred in childhood, “the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.”

26It is open to a trier of fact to accept or reject explanations offered by a witness for inconsistencies. If the trier of fact accepts explanations offered by the witness for inconsistencies, those explanations may neutralize any doubt that may have been created by the inconsistencies.

27In short, a trier of fact must grapple with and resolve any important inconsistencies and frailties in a witness’s evidence. In doing so, the court must keep in mind that “[t]he proper approach to the burden of proof is to consider all of the evidence together and not to assess individual items of evidence in isolation.” As Finlayson J.A. noted in R. v. Gostick (1999), 137 C.C.C. (3d) 53 (Ont. C.A.), this is particularly true where the Crown's case depends solely on the unsupported evidence of a complainant and where the principal issue is the complainant’s credibility and reliability.

The Use of Demeanour to Assess Credibility

28A witness’s demeanour is an appropriate consideration when assessing credibility. R. v. D.P., 2017 ONCA 263. However, a trier of fact must not overemphasize demeanour, and is not permitted to accept a complainant’s evidence uncritically based on her demeanour alone. R. v. Gostick (1999), 137 C.C.C. (3d) 53 (Ont. C.A.); See also R. v. A.S. (2002), 165 C.C.C. (3d) 426 (Ont. C.A.), at para. 38.

29In R. v. M.G. (1994), 93 C.C.C. (3d) 347 (Ont. C.A.), Galligan J.A. cited with approval the British Columbia Court of Appeal decision of Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), wherein O’Halloran J.A. explained that demeanour is only one element that a court takes into account when it assesses the credibility of a witness’s evidence:

If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet (1919), 59 S.C.R. 452.

Delayed and Incremental Disclosure of Abuse

30In R. v. D.D., [2000] 2 S.C.R. 275, the Supreme Court of Canada said the following about the effect of delayed disclosure on the assessment of a witness’s credibility:

In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

31In R. v. D.P., 2017 ONCA 263, the Ontario Court of Appeal found that the comments in R. v. D.D., [2000] 2 S.C.R. 275 are potentially applicable to incremental disclosure as well:

We see no error in the trial judge's assessment of the impact of J.E.'s delayed and bifurcated disclosure on his credibility. Nor do we accept the argument that there is a fundamental difference between delayed disclosure and piecemeal disclosure of prior sexual abuse. The comments in R. v. D.D. are potentially applicable to both, depending of course on the circumstances revealed by the evidence in any particular case.

Analysis

32S.M. was 13 years old when she testified at trial. She was 12 years old when she provided her s. 715.1 statement to Detective Moore on March 5, 2020. In both her s. 715.1 statement and in her viva voce testimony at trial S.M. presented as an honest and forthright witness. When she spoke with Detective Moore, she was emotional, crying and distraught during those portions of the interview where the detective was seeking to elicit further details regarding the sexual assaults. Similarly, in her testimony at trial, she became emotional at various points in her testimony when pressed to provide details of what her grandfather had done to her. Providing a statement to police and giving testimony in court was obviously a difficult experience for S.M..

33At trial, Defence counsel skillfully and forcefully cross-examined S.M. and elicited certain inconsistencies and contradictions in her evidence. It was clear that Defence counsel mounted an attack against both S.M.’s credibility and the reliability of her allegations of sexual assault. S.M. remained polite throughout an intense and intimidating cross-examination. She gave her evidence in a balanced way. For instance, she made appropriate concessions that her memory regarding certain details was poor, that she described things differently at different times, and that she may have been mistaken when she said certain things. At no point in her testimony did she present as a witness who was doing anything but her best to be truthful and answer counsels’ questions the best she could. As I will explain below, S.M. provided plausible and reasonable explanations for certain deficiencies in her evidence. Having observed and reviewed her evidence in its totality, in the context of the other evidence at trial, I found S.M. to be a credible witness.

34An assessment of the reliability of S.M.’s evidence requires me to carefully examine any inconsistencies, contradictions and frailties in her evidence, in the context of the evidence given by the other witnesses, to determine whether I am left in a state of reasonable doubt about her allegations of sexual touching.

S.M.’s Initial Report of Abuse at School on February 26, 2020

35S.M. first made allegations of sexual assault against her grandfather, G.M., on February 26, 2020. S.M. was at school when she made her initial report. Her class was doing a session on bullying. S.M.’s teacher asked the students to write down something they wished the teacher knew about them.

36In her s. 715.1 statement to Detective Moore, S.M. described what happened at school on February 26th, and the order of events as follows:

I wrote about when my sister left my house when she was 15, to live with my aunt and uncle, and then I wrote something that there is something else, and I just couldn't take it anymore and I started crying, and then I went for a walk, and then my teacher asked what's wrong. So then I asked if I could write it down, and then I started writing it, and then she caught on, and then told me to go to the principal's.

37Defence counsel cross-examined S.M. extensively about February 26, 2020, including an examination of the order of events, who she spoke with, what she told them, what she wrote, when she wrote it, and who saw her write it. Not surprisingly, this questioning produced discrepancies between S.M.’s version of what happened on February 26th and the testimony given by her teacher, J.C., and the principal, C.L..

38Defence counsel submits that these inconsistencies and the contradictions between S.M.’s evidence and the testimony of her teacher and principal weigh against the reliability of the remainder of her evidence including her allegations of sexual touching. As I will explain, none of these inconsistencies and contradictions strike at the core of S.M.’s allegations of sexual abuse or raise a doubt about the reliability of her evidence.

39When S.M. decided to report the sexual abuse for the first time at her school, she was crying, very distraught and was unable to put into words what she wanted to tell her teacher. Her teacher, J.C., described it as follows:

She also wrote that she had something very personal to share, that not even her mother knew, and very shortly after [inaudible] her Post-It she began to cry. She became very distraught and she was crying uncontrollably to the point where I had to take her in the hallway to speak.

40J.C.’s description of S.M.’s emotional state at the time is consistent with S.M.’s evidence that she was unable to verbally communicate to her teacher what was upsetting her and needed to write it down.

41S.M.’s evidence regarding what happened after she started to cry is inconsistent with J.C.’s version of events. For instance, S.M. says that she asked J.C. to go for a walk, and left the classroom with her friend, A.. S.M. and A. walked around the hallways of the school and went to sit in a staircase near their classroom. Then, S.M. and A. walked around the hallways again. According to S.M., they were gone from the classroom for between 30 to 45 minutes.

42In contrast, J.C. testified that when she saw S.M. crying, she took her into the hallway to speak with her. When Defence counsel examined J.C. in-chief, J.C. did not recall S.M. being gone from the classroom for 30 to 45 minutes and agreed with Defence counsel’s suggestion that a student being absent from the class for that length of time would be something that would stand out to her. However, in cross-examination, J.C. agreed that although she did not remember S.M. going for a walk after she started crying, it is possible that she did so:

Q. So, it’s possible after she started crying that she left the classroom for a period of time and you just don’t have any – you can’t say – tell us one way or the other? A. It’s possible that I can’t remember the timeline and perhaps yes, but I can’t remember, I’m sorry.

43Defence counsel submits that common sense dictates that the teacher would note and recall a student being gone from the class for that length of time and therefore I should prefer the evidence of J.C. on this issue, thereby calling into question the reliability of S.M.’s evidence. First, I note that the exact details of what happened after S.M. started to cry are peripheral to the core issue of the reliability of S.M.’s sexual assault allegations. In any event, I prefer the evidence of S.M. on this point. J.C. acknowledged and demonstrated throughout her testimony that she had difficulty recalling the events of February 26th because of the passage of time. Furthermore, J.C. in fact acknowledged that S.M. may have left the classroom after she started to cry and that she (J.C.) simply could not remember. J.C.’s evidence that when she asked S.M. to go out to the hallway A. was with them corroborates S.M.’s evidence that she was in A.’s company after she started to cry. I accept S.M.’s testimony that she left the classroom and went for a walk with her friend after, as J.C. described it, “she became very distraught and she was crying uncontrollably”. It makes sense that S.M. would do so to compose herself before returning to class.

44The Defence says that another material divergence between the evidence of S.M. and J.C. pertains to whether J.C. saw S.M. write that her grandfather touched her sexually. The Defence also points to the fact that S.M.’s testimony about when she finished writing this on the piece of paper is inconsistent with C.L.’s evidence.

45I note that it is immaterial and inconsequential whether it was S.M. who asked to write down on a piece of paper what was troubling her, or instead J.C. was the one who suggested that S.M. do so, as J.C. claimed in her evidence. It is, however, more likely that S.M., having decided to disclose the abuse, and having difficulty saying what she wanted to say, made a request to write it down.

46S.M. testified that when she and A. returned to the classroom, J.C. asked her what was wrong, at which point S.M. asked J.C. if she could write it down on a piece of paper. S.M. said that J.C. was sitting in the desk next to S.M. and A. was kneeling beside S.M.’s desk when S.M. was writing on the piece of paper.

47Defence counsel asked S.M. for details about what happened when she wrote on the piece of paper:

Q. Okay, and do you write it there and then at the desk in the classroom? A. I started to write it and then I wrote, like, the last, like, the last word, like, there was three letters and then she caught onto it and then sent me to the principal’s office. Q. So, this is on a new piece of paper, right? A. Yes. Q. And I’m looking at a note, it says, “Sometimes when I go to my grandparents’, when I’m by myself with my grandfather, he will sexually touch me and I haven’t told anyone, no one in my family knows.” Did you write all of that while you were in the classroom at the desk? A. I started to write it and then when I was in the principal’s office I finished writing it. Q. So, how far did you get when you were in the office – or, sorry, in the classroom? A. I got the first few letters of ‘sexually.’ Q. Okay. And the rest you say you wrote with the principal, in front of the principal? A. Well, she left the room and was sitting in front of me, so then I finished it so then, like, she could read it and then understand what I was trying to write. Q. So, the principal left the room? A. Yes.

48During cross-examination, S.M. said that her teacher, J.C., saw the first three letters of the word, “sexually” and sent her to the principal’s office. S.M. went on to testify that the principal, C.L., sat her down in her office and read the note, “and she wrote it in her notebook.” Defence counsel again asked S.M. when it was that she finished writing the rest of the note. S.M. replied: “When she [the principal, C.L.] left the office to – I don’t know what she was doing, but she left for a second and then I wrote it and then she came back.”

49According to J.C., when S.M. was crying, she took S.M., and S.M.’s friend, A., out to the hallway, and “asked her [S.M.] if she could put words on why she was crying.” Since S.M. was unable to speak and was distraught, J.C. sent her to principal’s office and “said that perhaps she could sit with [the principal] and write down what she couldn’t say.” J.C. said that S.M. did not write anything down in front of her and, on the day that these things happened in the classroom, she did not see the note that S.M. wrote regarding what was bothering her. Furthermore, according to J.C., S.M. did not verbally communicate to her what it was that she wanted to disclose.

50J.C. testified that when she sent S.M. to the principal’s office, she did not know yet that S.M. was alleging that she had been touched by her grandfather. J.C. maintained that the first time she learned what it was that S.M. wanted to disclose, and what S.M. was upset about, was at the end of the school day when C.L. told her.

51C.L. testified that she saw S.M. crying outside her office. C.L. asked her what was wrong and S.M. told her that she had been sent down to speak with her. C.L. invited S.M. into her office and they sat at her round table. According to C.L., “pretty much immediately” after they walked into C.L.’s office and sat at the table, S.M. handed C.L. a piece of paper that she had in her hand. C.L. read what was written on the paper and then started asking S.M. questions. According to C.L., there was never any gap in time when she (C.L.) left the office and S.M. was in the office on her own, and S.M. did not write any additional things on the paper in C.L.’s presence.

52At trial, C.L. identified the piece of paper that S.M. brought to her office. It was made Exhibit 2 on the trial. C.L. testified that the passage that was written on the page when S.M. gave it to her was the following:

Some times when I go to my grandparents when i’m by myself with my grandfather he will sexaly toght me and i havin’t told anyone no one in my famly konws.

53By all accounts, on February 26, 2020, S.M., who was 12 years old at the time, was crying and distraught when she decided to disclose and ultimately did disclose, for the first time, allegations of sexual abuse by her grandfather. I find that, even if S.M. was mistaken about the specific details of when she started and finished writing on the piece of paper that her grandfather sexually touches her, and was mistaken about J.C. seeing and knowing what she wrote before sending her to the principal’s office, this would be understandable. Those details would not have been important to S.M. that day and were even less important to her a year later when she testified at trial. S.M. did her best at trial to recall the details of what happened at school that day when she made her initial report. Those details are peripheral to the essence of her complaint which is that her grandfather sexually touched her.

54In any event, I find S.M.’s testimony to be more plausible than J.C.’s on this point. J.C.’s evidence that she sent S.M. down to the principal’s office without S.M. having written anything is difficult to reconcile with C.L.’s evidence that S.M. “pretty much immediately” handed C.L. a piece of paper when she came into her office. S.M.’s evidence that J.C. sent her to the office because J.C. became aware of what it was that S.M. was writing is plausible.

55S.M. is more likely to have a recollection of where she wrote the note than both J.C. and C.L.. It is unnecessary for me to resolve the factual disparity between S.M.’s testimony that she completed the note in C.L.’s office and C.L.’s evidence that the note was complete when she received it from S.M. This is another inconsequential fact that has no bearing on S.M.’s credibility and the reliability of her allegation of sexual abuse.

56Defence counsel cross-examined S.M. extensively on the issue of what she told her friend, A., on February 26, 2020. The questioning on this issue was interspersed with questions related to other topics. The following exchange occurred when Defence counsel first asked S.M. whether she told A. about the abuse:

Q. Okay. And did you have a conversation with A. about what you ultimately wrote to your teacher? A. I was kind of having a conversation, but as I wrote it – like, as I was, like, writing the note, she was sitting next to me, but I couldn’t get, like, the words out of my mouth when she was asking what was wrong.

57At a later point in cross-examination, Defence counsel asked S.M. whether she spoke about the abuse with her friend, A., when they were in the staircase together:

Q. And then you sit in a staircase, the two of you… A. Yes. Q. …near the classroom? A. Yes. Q. And you’re talking; are you talking at that point about your grandfather inappropriately touching you? A. Yes.

58Defence counsel re-visited the issue of what S.M. told A. at later point in the cross-examination:

Q. And is there a reason that you didn’t tell police that A. was with you and you told her the things that you’ve told your teachers and this court? A. Well, I didn’t really tell her, like, a lot because I couldn’t get, like, any of the words out of my mouth; that’s why I wrote it down. But I only walked around with her, so I didn’t that it was, like, important. Q. But you told me before the break, a little bit before the break that when you were sitting in the stairwell with A. you told her about your grandfather touching you sexually, or inappropriately I think was your word. A. I got out when I was at my grandparents’ and then I couldn’t get anymore words out. So, she knew something, like, was wrong that happened at my grandparents’. Q. So, when you told us before that you had disclosed to her about inappropriate touching, you were mistaken? A. Yes. Q. Okay. So, again, your memory is just wrong about that, even today? A. Yes. Q. And the reason you didn’t tell police about that 30 to 45 minutes you spent with A. specifically is you didn’t think it was important? A. Yes. Q. And you didn’t think it was important to tell police that you had told her about this? A. Well, I didn’t tell her exactly what happened because no one really in my class knew exactly what happened except for my teacher. Q. Well, even your teacher you didn’t tell exactly what happened, right? A. Yes. Q. You told A. the same thing you told your teacher, which was inappropriate touching, correct? A. I didn’t exactly tell A. what was happening because I couldn’t get the words out; that’s why I wrote it on a piece of paper. Q. Well, you wrote it on a piece of paper for your teacher’s benefit, right? A. Yes. Q. Not for A.’s benefit. A. Yes. Q. You’re not writing anything down in the stairwell, you’re having a conversation, correct? A. Yes. Q. And in that conversation you tell her that you’ve been inappropriately touched by your grandfather, correct? A. I didn’t tell her those words. Q. What words did you tell her? A. I don’t remember exactly what words, but I didn’t tell her what was happening. Q. Well, then that’s different from what you told us before the break. A. I told you that I was starting to tell her and I couldn’t get the words out and then we went back to class.

59The cross-examination of S.M. on the issue of what she told A. demonstrates how a skillful cross-examination is almost certain to confuse a child and why courts are instructed not to give the same effect to a flaw, such as a contradiction, in a child’s testimony as a similar flaw in the testimony of an adult.

60When Defence counsel first asked S.M. whether she had a conversation with A. about what she ultimately wrote to her teacher, S.M. said that she was kind of having a conversation with A. but couldn’t get the words out when A. was asking what was wrong. Defence counsel was then able to elicit a “yes” to the question “are you talking at that point [in the staircase] about your grandfather inappropriately touching you?”. At a later point in the cross-examination when S.M. again says that she couldn’t get any words out of her mouth when talking to A. and that’s why she wrote it out, Defence counsel suggests that S.M. was mistaken when she (S.M.) said “that when you were sitting in the stairwell with A. you told her about your grandfather touching you sexually, or inappropriately I think was your word.”

61A close review of the above passages reveals that S.M.’s memory was clear that she did not tell A. that her grandfather touched her sexually because she couldn’t get the words out and had to write it down. Yet S.M. was prepared to agree with Defence counsel’s suggestions that she was mistaken and that her memory about that was just wrong. This line of questioning did nothing to advance the Defence argument that S.M.’s evidence is unreliable.

62Defence counsel submits that it is troubling that S.M. provided far more detail of what happened in the classroom at the trial than she did when she spoke with Detective Moore. The reason for this is simple. S.M. was asked extensively at trial about what happened in the classroom on February 26th. Those questions were not asked by Detective Moore. Nor was it incumbent on the 12 year old complainant, for instance, to volunteer to Detective Moore that she was with A. for 30 to 45 minutes. That detail would not have been important to S.M. at the time of providing a police statement about a traumatic experience, especially since S.M. did not tell A. much about what had happened.

63The other discrepancy between S.M.’s and J.C.’s evidence that Defence counsel points to relates to whether A. accompanied S.M. to the office. This detail is unimportant. Whether J.C. is correct that A. accompanied S.M. to the office as a chaperone or S.M. is correct that she went to the office alone is of no consequence. And furthermore, C.L. could not recall whether A. was with S.M. at the office.

The November 2019 Basement Incident

64In the s. 715.1 statement, when Detective Moore first asked S.M. to expand on what she wrote at school and to tell him more about the inappropriate touching, she said: “It’s hard to remember about it because I don’t try to remember about it, but all I remember like, is the like, that’s the last time that it happened.” S.M. said that the last time it happened was in the basement of G.M.’s home in November of 2019, and that was the time she remembered the most.

65However, it was not the only time that G.M. touched her sexually:

Detective Moore: Okay. So you said you remember the last time that it happened, and already you said when you talked to the principal that was this past November. SM: Yes. Detective Moore: So when you say the last time, that means that this happened just one time, or more than one time. SM: It happened more than once. Detective Moore: More than one time, okay. And you already talked about a last time in November, is that the time that you remember the most, or is there another time that you remember the most? SM: That's the most. Detective Moore: That's the time that you remember the most? SM: (Nods yes).

66In the s. 715.1 statement, S.M. was only able to provide details regarding the last incident that happened in the basement in November of 2019. The Defence asserts that S.M.’s evidence regarding the November 2019 basement incident suffers from the following frailties:

(a) S.M.’s account of the incident, including the sexual touching itself, is so completely devoid of details as to make it unreliable. The allegation is vague and ambiguous and there is nothing to give it the hallmarks of reliability;

(b) In the s. 715.1 statement, S.M. told Detective Moore that the sexual touching stopped when her grandmother came downstairs and then her grandmother got in the shower, but in the written note S.M. prepared during the s. 715.1 statement, she wrote that the sexual touching happened when her grandmother was in the shower and then her grandmother came downstairs;

(c) S.M. admitted that her memory of the location of the incident (ie. that it happened in the basement) could be wrong;

(d) S.M. may have told the principal that the sexual touching was still happening and that the last incident of sexual touching happened over the Christmas break, and S.M. agreed with Defence counsel that if she said these two things, they were lies; and

(e) S.M. couldn’t say whether the sexual touching in November of 2019 happened on the first or second day that she stayed at her grandparents’ home.

67In the s. 715.1 statement, Detective Moore asked S.M. to tell him everything she remembered about the last time something happened at her grandfather’s house in November of 2019. S.M. said:

I was like just sitting down in the basement, and then he came down and he was talking, and then that's when it happened. And then I got up, and then my, like my grandmother came down and was just sitting there, and then it didn't happen. And then when she left, I would just stand up, and then I would start walking around or I'd walk upstairs.

68Detective Moore then asked S.M. to explain what she meant by “it happened” and to tell him everything she remembered. At this point in the interview, S.M. began to cry and was distraught. However, she was able to provide the following response:

So, the last time, he put his hand [31] up my shirt and down my pants, and then after that my, like my grandmother came down, and then she stayed down there, and then she got in the shower, so I got up and was sort of just walking around.

69S.M. told the detective that she had a yellow short-sleeve t-shirt on “that had black around it, that said something about making something smile,” and that her grandfather touched her inside the shirt. When Detective Moore asked her what part or parts of her body G.M. touched when he put his hand inside her shirt, S.M. was crying and after a long pause said, “I remember that it was my side, my stomach and above my stomach.”

70When Detective Moore asked S.M. if she could tell him specifically the name for the body part that her grandfather touched above her stomach, S.M. was crying and said: “It’s hard to say it because I just can’t get it out, it’s like at school, I couldn’t get the words out, so I wanted to write it down.” She went on to say, “I don’t know, it’s just hard.”

71At that point in the s. 715.1 statement, Detective Moore asked S.M. if she wanted to take a break and she said that she did. The detective and S.M. left the interview room for approximately twenty minutes. When they returned, Detective Moore continued to question S.M., seeking to elicit further details about the November 2019 basement incident. S.M. could not remember the pants she was wearing at the time, or the style of pants, but said that when her grandfather put his hand down her pants, they were still on. S.M. said that her grandfather put his hand up her shirt first, then down her pants. S.M. could not remember whether she was wearing underwear on the top or the bottom.

72In terms of the timing of the incident, the following exchange occurred between S.M. and Detective Moore:

Det Moore: …What made you remember the month, November? SM: That was, I was, that was the first time I was sick, and then I didn't go to school for three days, and then I ended up going to school, and then I went on vacation, and then after Christmas I was sick again, so I remember it was before we went on vacation, because I was sick before we went on vacation.

73S.M. said that the basement incident happened in the afternoon because everybody was still at school. When Detective Moore asked S.M. what the very next thing that happened after her grandmother came down and the touching stopped, S.M. said she could not remember. S.M. stayed at her grandparents’ home until her mother got off work.

74According to S.M., her grandfather did not say anything before he touched her or while he was touching her, nor has he ever said anything to her about the touching that happens.

75Close to the end of the s. 715.1 statement, Detective Moore gave S.M. some paper and asked her to write down the details of everything she remembered about the last time her grandfather touched her, including the parts of her body he touched and what he was doing when he was touching those parts. Detective Moore left the room to give S.M. privacy to write.

76S.M. wrote various things on the note, including reasons why she decided to report the abuse and what happened after she did. The following is the portion of the note dealing with the November 2019 basement incident:

When it was up my shirt he touched my breasts. And when it was in my pants it was my vegina. The part that I remember was that it happened when my grandma was in the shower and when she came downstairs it stoped then he went in the shower and she was still downstairs then after he came out of the shower and she went upstairs so I got up a started walking around so it wouldn't happen again. That day that I remember how I know it was that day is because I had a boyfirend and later on that day we were on call but I didn't bring that up.

(a) The Defence Says S.M.’s Account is Devoid of Details

77I reject Defence counsel’s submission that S.M.’s account of the November 2019 basement incident is devoid of details and therefore lacks reliability.

78Defence counsel cross-examined S.M. about the details. S.M. agreed with numerous suggestions that Defence counsel made to her. For instance, S.M. agreed that she had no recollection of how the touching started or how long the touching lasted and what her grandfather was doing down in the basement. She did recall that nothing was said during the touching, that she was lying down on the couch, that her grandfather was standing throughout the touching, and that the touching stopped when her grandmother came down and her grandfather “just took his hand out.”

79Part of the Defence submission on this point is that, in relation to the touching itself, S.M. could not say anything other than her grandfather put his hand up her shirt and touched her breast and put his hand down her pants and touched her vagina. Defence counsel called it “a bald allegation of hand up the shirt, hand down the pants.”

80When Defence counsel pressed S.M. about her inability to provide further details with respect to the touching itself, the following exchange occurred:

Q. You have no recollection of how he touched you, right? A. I explained in my statement, and when [Crown counsel] asked me I explained how the touching happened. Q. Okay. So, what you said in your statement – and I’m paraphrasing – was, ‘He put his hand up my shirt, he put his hand down my pants,’ and then you wrote down on your written part, ‘When it was up my shirt he touched my breasts, and when it was in my pants it was my vagina.’ A. Yes. Q. That’s the extent of it, right? A. Yes. Q. Beyond that, you can’t describe the touching, correct? A. Yes.

81S.M. was repeatedly asked by adults to provide details about sexual touching that she told Detective Moore was “hard to remember about,” “because I don’t try to remember about it.” Because of her emotional state, S.M. had difficulty speaking about the allegations both at school and with the detective and had to express herself in writing. When she did so during the s. 715.1 statement, she wrote the names of the body parts her grandfather touched.

82S.M.’s evidence is not unreliable because she was unable to provide minute details about things such as how long the touching lasted and a step-by-step accounting of what her grandfather did with his hand. The core of S.M.’s complaint is that when she was alone in the basement with her grandfather, her grandfather took advantage of an opportunity to sexually touch her by putting his hand up her shirt to touch her breasts and down her pants to touch her vagina, as he had done on prior occasions. Her narrative may “not precisely match the ideal narrative form of an adult’s testimony” R. v. C.C.F., [1997] S.C.J. No. 89 but that does not make her evidence about the sexual touching unreliable. She was 12 years old when she gave her first account of the sexual touching and 13 years old at the time of trial, when she gave evidence about traumatic experiences that she had difficulty discussing and tried to forget. The details S.M. provided about the sexual touching and about the surrounding circumstances of the basement incident, are sufficient to support a conviction for the offences if the Court finds her evidence to be credible and reliable, which I do.

(b) The Grandmother’s Shower

83At one point, S.M. told Detective Moore that the touching stopped when her grandmother came downstairs and then her grandmother got in the shower. However, in the note she prepared for the detective, she wrote: “The part that I remember was that it happened when my grandma was in the shower and when she came downstairs it stoped then he went in the shower and she was still downstairs then after he came out of the shower and she went upstairs so I got up a started walking around so it wouldn't happen again.”

84At the beginning of cross-examination, Defence counsel asked the following question about the bathroom on the upper level of the home:

Q. That bathroom has a toilet, sink, and a tub but no shower, correct? A. Yes.

85At a later point in the cross-examination, S.M. admitted that even when she talked to Detective Moore in March of 2020, closer in time to the basement incident, it was really hard to keep things straight. Defence counsel then pointed out to S.M. the discrepancy between what she told Detective Moore and what she wrote regarding the timing of her grandmother’s shower:

Q…In the same span of, I don’t know how long it was, an hour or so with Detective Moore, maybe less, you remembered two different ways that this happened, right? A. Yes. Q. One version, it’s happening when your grandma is upstairs and you say in the shower, right? A. Yes. Q. And we know that that can’t be true because there’s no shower upstairs, right? A. Yes, but she still uses the shower in the bathtub. Q. But there isn’t one; you’ve already told me that. A. I’ve showered in there before because there’s the showerhead that you can stand up and shower in. Q. Okay, well, that’s not what you said when I asked you about the bathroom at the very beginning of these questions. So, that’s wrong, isn’t it? Grandma wasn’t in the shower upstairs because she couldn’t have been, right? A. You can still shower upstairs. Q. In any event, it happening when grandma being in the shower is different from it happening and then grandma coming down and then going in the shower, right? A. Yes. Q. And when you’re talking to Detective Moore, you don’t say anything about grandpa going in the shower, do you? A. No. Q. So, you’ve told two different versions within that interview, right? A. Yes. Q. And I’m going to suggest to you your memory was not very good then, was it? A. No. Q. And it’s not very good now, is it? A. No. Q. And you really can’t remember what happened. A. I can’t remember a lot, but that time that happened in the basement I can remember a lot. Q. And what you do remember, you’ve remembered differently at different times, right? A. Yes. Q. You’ve remembered it differently at the same time, right? A. Yes.

86First I note that, having observed S.M. testify and having considered her evidence on this point, I do not find that she fabricated the existence of a showerhead in the bathtub upstairs to account for a discrepancy that Defence counsel exposed in her questioning. I believe her evidence that there is a showerhead in the bathtub upstairs and that both she and her grandmother use it. S.M.’s evidence on that point was uncontroverted.

87More importantly, however, I find that the inconsistency pertaining to the timing of her grandmother’s shower is not a crucial inconsistency that strikes at the core of her allegation. S.M. readily acknowledged the inconsistency and the failing of her memory when it came to certain details of what happened in the basement. S.M. cannot recall whether her grandmother was in the shower upstairs and then came downstairs, which caused her grandfather to stop touching her, or whether her grandmother came downstairs and then went into the shower.

88However, it is telling that when Defence counsel suggested to S.M. that she couldn’t really remember what happened, she replied, “I can’t remember a lot, but that time that happened in the basement I can remember a lot.” I find that what S.M. can remember is that the sexual touching happened when she was alone with her grandfather, that it stopped when her grandmother came downstairs, and that when her grandmother left, she (S.M.) walked around the house to avoid her grandfather because of what he had done to her. The fact that S.M. cannot keep straight the timing of her grandmother’s shower does not mean that she has misconceived what happened to her and who did it.

(c) Did it happen in the Basement?

89Defence counsel suggested to S.M. that it did not make sense that she would be in the basement at her grandparents’ home when she was sick, and after repeated questioning S.M. admitted that she could be wrong about this. However, it is important to consider her admission that she might be wrong about the location of the assault in the context of the questioning on this point.

90I have reproduced the cross-examination on this issue in its entirety to show the context in which S.M. agreed with Defence counsel’s suggestion that she could be wrong:

Q. And because you’re so sick, when you’re at your grandparents’, your grandmother sets you up on the couch in the main floor living room so she can take care of you and keep an eye on you, right? A. I remember just being in the basement. Q. I’m suggesting that when you went there, your grandmother is really the one who is taking care of you, right? A. Yes. Q. And she sets you up in the main floor living room so she can do just that, right? A. Yes. Q. Wouldn’t make sense for her to put you in the basement because then she’d have to go up and down the stairs and there’s no real reason for her to be down there otherwise, right? A. Yes. Q. So, I’m going to suggest you’re in the main floor living room when you’re there off sick from school? A. Yes. Q. Not in the basement. A. What I recall and remember is me being in the basement. Q. Well, perhaps - because your memory isn’t great, as you told Detective Moore - you were wrong about that? A. What I – what I remember is me being in the basement. I don’t remember being on any other floor except for the basement, except for when after the touching happened and I went upstairs and was walking around. Q. And all I’m suggesting is you could be wrong about that, right? A. Yes. Q. You’ve been wrong about other things, right? A. Yes. Q. Okay. Even when you talked to Detective Moore last March of 2020 – and again, that was a lot closer in time to when you say this happened – it was really hard to keep things straight, right? A. Yes. Q. You told them in the video that you were in the basement and that could be wrong, right? A. No, because I remember being in the basement.

91In her s. 715.1 statement and the note she wrote during that statement, S.M. said the November 2019 incident happened in the basement. In the exchange set out above, S.M. told Defence counsel three times that she remembered being in the basement before finally agreeing with Defence counsel’s suggestion that she might be wrong about that. I observed S.M. when she agreed with Defence counsel’s suggestion that she may be wrong. She became emotional and was crying. Almost immediately after agreeing that she could be wrong that she was in the basement, S.M. again said, “No, because I remember being in the basement.”

92S.M. was polite throughout her interaction with Defence counsel. The above passage does not demonstrate that S.M.’s evidence is unreliable. It demonstrates that she was willing to passively agree with the suggestion that she may be wrong when her repeated and consistent responses were simply not being accepted by the adult who was questioning her in court. After admitting that she could be wrong, S.M. immediately repeated that she was in the basement.

93In re-examination, when asked about Defence counsel’s suggestion that her grandmother set her up on the main floor, S.M. said that she was pretty sure her grandmother asked her where she wanted to be. She was most comfortable in the basement and was almost always in the basement when she went to her grandparents’ house. S.M. remembered being down in the basement because when her mother came to get her, she (S.M.) had to get all of her stuff and go back upstairs.

94I find as a fact that the November 2019 incident of sexual touching happened in the basement of G.M.’s home.

(d) What did S.M. tell the Principal, C.L.?

95Defence counsel submits that S.M. said two things to the principal, C.L., on February 26, 2020 that affect the credibility and reliability of her evidence - that the touching was “still happening” and that the last time it happened was “over the Christmas break.” Defence counsel even got S.M. to admit that if she did say these things to the principal, they were lies.

96The discussion of this issue must start with a close review of C.L.’s evidence. At the request of the police, on March 11, 2020, C.L typed a statement detailing the meeting she had with S.M. approximately two weeks earlier.

97In examination-in-chief, C.L. said that her March 11th statement contained verbatim answers that S.M. provided to four questions that C.L. asked her:

Q. And when you’ve put quotations around the answers, does that indicate a direct quote? A. Yes.

98The two questions that are relevant here are the following:

1. Q. “Is this still happening?” A. “Yes”.
2. Q. “When was the last time it happened?” A. “Over the Christmas break”.

99In examination-in-chief, C.L. said that she had a present memory of asking the first question “is this still happening?” and getting the answer, “yes”. She was confident it was the exact question she asked and the exact answer S.M. gave.

100In examination-in-chief, C.L. testified that she was certain that the exact answer S.M. gave her to the second question was “Over the Christmas break”. According to C.L., the quotation marks in her typed statement meant this was a direct quote from S.M.. C.L. testified that the Christmas break was between December 20, 2019 and January 6, 2020.

101In cross-examination, C.L.’s confidence that her March 11th statement contained S.M.’s verbatim responses evaporated. In fact, cross-examination exposed the unreliability of C.L.’s evidence on this point. First, she acknowledged that her March 11th typed statement mistakenly said that her interaction with S.M. was on March 3rd, when in fact it was on February 26th. C.L. was not sure how she made that mistake. She acknowledged that her March 11th statement reflected her best recollection on March 11th of the conversation she had with S.M. about two weeks earlier on February 26th.

102Crown counsel showed C.L. the piece of paper C.L. wrote notes on when she met with S.M. on February 26th. It was made Exhibit 2 on the trial. C.L. confirmed that she made her notes on that piece of paper on February 26th, either during her conversation with S.M. or shortly after. C.L. agreed that she was not concerned about creating an accurate categorization of the details of the allegations.

103Crown counsel pointed out to C.L. that on February 26th she wrote “during holiday time” as opposed to “over the Christmas break”. C.L. confirmed that she wrote “during holiday time” during her conversation with S.M., or shortly after. C.L. went on to admit that she did not recall the exact words that S.M. used and that S.M. could have said the last time it happened was before her holiday vacation:

Q. And, so, is it possible that some of the questions and answers you’ve written down, although you’re trying to get them down verbatim, they’re not word-for-word, is that right? A. It’s very much – it’s always possible, yes. Q. Okay. And there’s an example of that. So, in your handwritten notes you note that – you note the words, “during holiday time.” A. Mm-hmm. Q. Right? And then in the – in your statement to Detective Moore in response to the question, “When was the last time it happened?” you wrote that her words were, “Over the Christmas break.” A. Yes. Q. But based on your notes from the 26th, it’s probably – it’s more likely that she said something like, ‘during holiday time,’ is that fair? A. It’s – it’s possible, yep. Q. Do you recall the exact words that Sophia used? A. No, sorry, I don’t. Q. Could she have said something like it was before her holiday vacation the last time it happened? A. She could have but, sorry, I don’t remember.

104Before C.L. gave her evidence at trial, S.M. was cross-examined about these statements she purportedly made to C.L.. S.M. did not remember C.L. asking her “is this still happening?” and did not remember answering “yes”. S.M. agreed with Defence counsel’s suggestion that there was “no reason to doubt that that happened.” Having reviewed and considered C.L.’s evidence, I find that there is good reason to doubt that it happened.

105When Defence counsel cross-examined S.M. about the second question, the following exchange occurred:

Q. The second question she asked you was, “When was the last time it happened?” and you said, “Over the Christmas break.” Do you remember that question and answer? A. No. Q. Can’t say it’s wrong? A. I can’t say it’s wrong, but the last time I remember was the time I said in my first statement. Q. Okay. You might have told [C.L.] something different? A. Possibly.

106S.M. was prepared to admit that she may have been wrong in some of the things she said to C.L. even though she continued to maintain that the last time she remembered was the time she said in her statement, which was November of 2019. In her s. 715.1 statement, S.M. gave detailed reasons why she remembered that the basement incident happened in November. She remembered that it happened the first time she was sick, and didn’t go to school for three days, which was before they went on vacation. She also remembered that she went on vacation and then after Christmas she was sick again. In the note that she wrote during the s. 715.1 statement, S.M. said she knew it was that day because she had a boyfriend and later on that day, they were on a call and she did not bring it up.

107I prefer S.M.’s evidence on this point, which is that she told C.L. that the last time it happened was late November when she was sick and before she went on vacation to Mexico.

108However, I find that even if S.M. gave the answers that C.L. attributed to her, they would not affect the credibility or reliability of her evidence. During re-examination, Crown counsel asked S.M. why she would have given those answers to C.L., if she gave those answers. S.M.’s explanations for any discrepancies are reasonable and I accept them:

Q. Okay. If you told [C.L.] that that last time in the basement happened over Christmas break, why would you have said that to her? A. Well, when I first said something it was, like, a big thing. Like, I was just telling somebody that day. So, everything just, like, wasn’t okay and I remember that there was one more question that she asked me that I guess she didn’t put down on it. Q. What question was that? A. She asked me how long it was, like, going on for. And I remembered that and I just, like, thought that that might, like, be important because, like, she missed out a question that she asked me and that, like, you probably need the question she asked me. So, but I said, like, that day it was, like, very confusing, it was like a blurry day. I finally – like, I trusted my teacher a lot. I finally told someone. It was a really emotional day, so some of the words I might have said that day weren’t correct. Q. Okay. I’m going to ask you as well about the other questions. So, Ms. Wilhelm asked you if you told [C.L.] that the touching was still happen – still happening – that would have been a lie. Do you remember that? A. Yes. Q. If you told her that the touching was still happening, why would you have told her that? A. I must have been mistaken for the question she asked because I know, like, the last time it happened, like, you wouldn’t just, like, forget it. Like, yes, I tried to forget a whole bunch of stuff, so, yes, not everything I say might be, like – people might not understand everything that I say. But I know what I’m saying is, like, what I remember or, like, what I think or anything that, like, I know. I tell people, yes, my words might not be the exact same as, like, what I say before, but I mistake my words sometimes, so it’s hard for people to understand. So, yes, I have to, like, go over, if people ask me something I have to, like, re-explain what I’m trying to say. Q. What does that mean to you to say the touching is still happening? A. What I guess I thought is, like, was the last time, like, it happened was, like, what I – I guess what I thought is, like, was it still, like, happening, like, that time, like, was – I don’t know, like, what I meant by that, but I know that the time in November was the last time because then the next time I saw them was Christmas and then that was the last time. Q. Okay. When you were talking to [C.L.] that day, did you think that there was a danger your grandfather might touch you again? A. Yes.

(e) Did the Sexual Touching Happen on the First or Second Day?

109Defence counsel submits that S.M. could not recall whether the sexual touching happened on the first or second day she stayed at her grandparents’ house when she was sick, which is another example of the unreliability of her evidence. I find that S.M. gave cogent reasons why she was “pretty sure” it happened on the second day. Although she agreed with Defence counsel’s suggestion that perhaps it happened on the first day, she explained why she did not think it was the first day and thought it was the second day. I accept her evidence and find that the sexual touching happened on the second of the three days S.M. stayed at her grandparents’ house.

(f) Conclusion regarding the Basement Incident

110S.M. gave credible and reliable evidence regarding the November 2019 basement incident. For the reasons outlined above, I find beyond a reasonable doubt that G.M. sexually touched S.M. by touching her breasts under her shirt and by touching her vagina under her pants.

Disclosure of Additional Incidents on February 11, 2021

111In the March 5, 2020 s. 715.1 statement, Detective Moore asked S.M. if she could tell him about any other time that G.M. sexually touched her, other than the November 2019 basement incident. S.M. said she did not remember the details of any of the other incidents. S.M. could not remember what grade she was in the first time G.M. sexually touched her. She said that the sexual touching happened more than once and that it was not just in grade 7, but in other grades as well. S.M. could not tell Detective Moore what other grades she was in, or teachers she had, when the other sexual touching happened. Detective Moore asked S.M. if she could tell him about “the time just before the time in November” that she told him about. S.M. replied that she did not remember. S.M. did not say how many times sexual touching of this nature happened or how long it had been happening for.

112In the s. 715.1 statement, S.M. was unable to tell Detective Moore anything else about what G.M. had been doing to her when she would go visit him. Detective Moore offered S.M. the opportunity to tell him or write down anything else that was important before they ended the interview, but she could not provide any other details. What S.M. did tell Detective Moore in the s. 715.1 statement was that the other times that sexual touching happened it was the same type of touching.

113Two weeks prior to trial, on February 11, 2021, S.M. provided details of two other incidents she said occurred at her grandfather’s home-the patio and bedroom incidents. Crown counsel asked S.M. how she was able to remember in February of 2021 the details of additional incidents that she was not able to tell Detective Moore when she provided her s. 715.1 statement in March of 2020. S.M. replied:

Over the time, like, it would pop up in my mind and – ‘cause, like, you can’t just forget all about that. So, it just, like, over time, ‘cause it was almost a year that I told someone, so over the time of how many months I remembered more times.

114The following exchange occurred between Defence counsel and S.M. in cross-examination:

Q. And my friend asked you this, but I don’t think your answer really answered the question; what has happened in the last year to improve your memory that all of a sudden, two weeks before this trial, you remember these two things? A. I had time to think of stuff because when I first watched my first statement there was some things that made no sense. As I said in my first statement, I didn’t remember the pants that I was wearing, but later on I remembered exactly what pants they were and what exactly what shirt it was. So, I had time to think about stuff and to remember stuff because going on, you’re not just going to forget about traumas that happen in your life, you’re going to remember things.

115S.M. readily acknowledged the weaknesses in her evidence. She agreed with Defence counsel that a year earlier, in March of 2020, she could not recall the patio and bedroom incidents, and that the first time she remembered them was in February of 2021. S.M. acknowledged that she doesn’t know when the patio and bedroom incidents happened but can only say that they happened before the basement incident.

116I find that S.M. was an honest witness who was doing her best to recall the details of traumatic events that happened to her, events that she was trying to forget. However, the issue for me to determine is the reliability of her memory and testimony regarding the patio and bedroom incidents. I must be satisfied that the Crown has met its burden to prove the elements of the offences of Sexual Assault and Sexual Interference beyond a reasonable doubt in relation to each of those two incidents.

117For the following reasons, I find that while the bedroom and patio incidents, or incidents similar in nature to them, probably occurred, I cannot find that the Crown has met its burden of proof beyond a reasonable doubt.

The Initial Disclosure of the Bedroom and Patio Incidents

118I am left in a state of reasonable doubt regarding the bedroom and patio incidents partly due to the circumstances surrounding S.M.’s initial disclosure of these incidents.

119Crown and Defence counsel made submissions regarding delayed and incremental disclosure. Having reviewed the totality of S.M.’s evidence, and the reasons she gave for disclosing the abuse when she did, I found that her delayed disclosure of the basement incident did not affect the credibility of her evidence with respect to that incident.

120Counsel asked me to treat the disclosure of the bedroom and patio incidents as incremental disclosure and to apply the principles of delayed disclosure to S.M.’s reporting of these two additional incidents. With respect, in the circumstances of this case, I find that it is not accurate to characterize S.M.’s disclosure of these additional incidents as “incremental disclosure”.

121This is not a situation where S.M., having made the decision to disclose the abuse, delayed the disclosure of some incidents, for example, because of the pain, shame or embarrassment of disclosing those incidents. In her s. 715.1 statement, S.M. told Detective Moore that, although other similar incidents had happened, she could not recall details of those incidents, and she acknowledged at trial that she remembered these occurrences for the first time in February of 2021.

122S.M. did not make a conscious decision to delay disclosure of the patio and bedroom incidents when she gave her s. 715.1 statement. She simply could not recall the details of those incidents at the time. This requires me to approach her evidence regarding these incidents with caution and with the criminal standard of proof in mind.

The Timing and Order of the Bedroom and Patio Incidents

123S.M. was unable to say when these two incidents happened. This would not be a significant concern on its own, but it must be considered in the context of the whole of her evidence.

124On February 11th, Detective Moore tried to establish a time frame within which the bedroom and patio incidents happened. He asked S.M. whether the incidents happened in the same school year or different years and whether there was anything that would help her remember when the incidents happened. S.M. was only able to tell Detective Moore:

Well, it wasn’t in the same year, like, it was spread out, I don’t know. Like, I remember – I don’t, like, remember, remember, but I remember it was, like, spread out. So, it wasn’t, like, the same exact year. It was, like, different years.

125Crown counsel asked S.M. additional questions to establish a timeframe. S.M. testified that the bedroom incident happened before the patio incident. Both the bedroom and patio incidents happened before the basement incident. S.M. could not say how long before the basement incident the bedroom incident happened. After a series of questions aimed at establishing the earliest date on which the bedroom incident may have happened, S.M. said she was pretty sure her brother, L., was born when the bedroom incident happened, and L. was born in May of 2014.

126Defence counsel cross-examined S.M. about her failure to remember and to mention to Detective Moore the benchmarks that Crown counsel put to her to establish the timeframe. However, the more significant inconsistency that arose in cross-examination pertained to the order of events.

127In her February 11th statement, S.M. told Detective Moore that the patio incident happened before the bedroom incident. However, a couple of questions later, Detective Moore asks:

So, correct me if I’m wrong, but I understand you’re saying is that the first time you remember would have been the time in your aunt’s old bedroom at your grandparents’ and then the next that you remember would have been the patio because you said that happened before the time in the basement.

128Instead of correcting Detective Moore, S.M. agreed that the bedroom incident happened before the patio incident. S.M. agreed with Defence counsel that she reversed the order of the incidents in the span of a few questions. S.M. also agreed with the suggestion that her memory of the bedroom and patio incidents was not very good at all.

129The following can be said about the bedroom and patio incidents: (a) they could have occurred at any time when S.M. was between the ages of 6 and 12 years old, but there is no evidence when within that range of time either occurred; (b) S.M. is uncertain which occurred first; and (c) there is no evidence when in relation to the November 2019 basement incident they occurred, except that they both happened before that incident.

130Therefore, in assessing the reliability of S.M.’s memory regarding these incidents, there is no way of knowing whether she was relaying information about things that happened to her when she was 6 or 12 years old, or anytime in between.

The Bedroom Incident

131S.M. testified that she was in her aunt’s old bedroom in her grandparents’ home, lying on the bed relaxing. It was a Sunday when the extended family went for dinner, which meant that there could have been up to sixteen people in the house.

132S.M. testified that she did not remember anything that happened before the sexual touching. She could not remember how the touching started or ended or anything that happened after the touching that day. She could not remember why she was in the bedroom, or why her grandfather would have been up in the bedroom. She could not remember anything that was said.

133S.M. remembered laying on her stomach and then G.M.’s hands down her pants and then up her shirt, touching her vagina and her breasts, under her clothes. She could not recall what she was wearing. S.M. could not recall whether she was on her stomach the whole time but said:

Well, there was, like, space between, like, the bed because, like – I don’t know how there was space, but it wasn’t, like, my full, like, weight on the bed because it wasn’t, like, there was no room under, like, between my body and then the bed.

134I am unable to find G.M. guilty beyond a reasonable doubt in relation to the bedroom incident. S.M. had no recollection of this incident in March of 2020. S.M.’s testimony lacks details about surrounding circumstances such as her age at the time, the events leading up to the touching, and anything that happened after the touching. There is no evidence as to how or why she remembered this incident for the first time in February of 2021 and S.M. admits that her memory about this incident is not very good at all. A criminal conviction cannot be based on probable guilt.

The Patio Incident

135S.M.’s testimony about the patio incident has similar frailties. However, there are additional weaknesses that make it unsafe to convict on this occurrence. Again, S.M. could not say how old she was when it happened on the patio. When S.M. spoke with Detective Moore on February 11th, she said she could not really remember a lot about it but remembered it being the same as November 2019 in the basement. Detective Moore confirmed that she meant her grandfather put his hand up her shirt to touch her breasts and down her pants to touch her vagina when she was on the couch on the patio and her grandfather was standing in front of her.

136At trial, two weeks after giving her statement to Detective Moore, S.M. said, “what I remember is – well, I don’t remember, like, a lot from that time, but I remember his, like, hands, like, down my pants in the bathing suit.” S.M. said that the touching underneath her bathing suit lasted 5 to 10 minutes with her grandfather standing at the end of the couch near her legs. Her grandfather stopped touching her when her dad came out and said it was dinner time. S.M. said there was nothing else she could remember about that time on the patio.

137Between February 11th and the trial two weeks later, S.M.’s recollection of this event changed from touching of her breasts and vagina to touching of her vagina only. This is an inconsistency that goes to a central element of the offence. The description of the nature of the assault varied. There is uncertainty with regard to what transpired on the patio.

138Furthermore, on February 11th, S.M. told Detective Moore that she did not remember what exact bathing suit it was, but remembered it was a bathing suit. At trial, S.M. gave a detailed description of wearing a two-piece bathing suit that had a longer top that covered her stomach. When confronted in cross-examination about her recollection of the bathing suit at trial but not two weeks earlier, S.M. said she didn’t start wearing a two-piece until 2018. Defence counsel then reminded S.M. that she could not remember how old she was when the patio incident happened, which resulted in the following exchange:

Q. How do you know today that you were wearing a two-piece bathing suit when you don’t know how old you were or when this happened? A. Because I know that it – what – ‘cause in some pieces you can remember things, it comes in different pieces. In a trauma you don’t remember everything just at once. You remember things in different sections. So, in the past year I’ve remembered things, and you might not believe me, but I know what I remember and I know what I see.

139I am unable to find G.M. guilty beyond a reasonable doubt in relation to the patio incident. S.M. had no recollection of this incident in March of 2020. Her account of the touching varied in a significant way at trial from what she told the detective two weeks earlier. Her testimony that memories of the trauma come “in different pieces” and “you remember things in different sections” demonstrates that it would be unsafe to convict on her evidence. I wish to make it clear that when S.M. gave her evidence regarding the patio incident, she presented as an honest witness. However, her evidence about the patio incident lacks the reliability required to make a finding of guilt on the criminal standard of proof.

Conclusion

140For the reasons outlined above, I find G.M. guilty of the offences of Sexual Interference and Sexual Assault in relation to the basement incident that occurred in November of 2019. The conviction for Sexual Assault is conditionally stayed pursuant to R. v. Kienapple, [1974] S.C.J. No. 76.

Released: June 28, 2021 Signed: Justice J.P.P. Fiorucci

Endnotes

1S.M. adopted the contents of her written note during her testimony in-chief and it became part of Exhibit 1 together with the DVD of the s. 715.1 statement.

31The word “hands” appears in the transcript of the s. 715.1 statement. However, in the video of the statement, it is clear that S.M. said “hand”.