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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court File and Parties
DATE: April 6, 2023 COURT FILE No: 22-YO18 O N T A R I O C O U R T OF J U S T I C E
B E T W E E N :
HIS MAJESTY THE KING
-AND-
D.G.
Before: Justice M. G. March
Heard on: May 9, 16 & 18, September 16 and December 14, 2022 Reasons for Judgment released on: April 6, 2023
Counsel: Teresa James, for the Provincial Crown Daniel Howard, for D.G.
Introduction
1The accused, D.G., a young person within the meaning of the Youth Criminal Justice Act, stands charged that between July 1, 1984, and August 1, 1985, at the Defence Establishment of Garrison Petawawa, Ontario, he did:
a) commit a sexual assault on S.G. contrary to then section 246.1 of the Criminal Code of Canada (“the Code”),
b) as a male, have sexual intercourse with S.G., a female person not his wife and under the age of 14 years, contrary to then section 146(1) of the Code, and
c) have sexual intercourse with S.G., while knowing that S.G. was his sister, contrary to then section 150 of the Code.
2At the outset of trial, defence counsel admitted the identity of D.G. as the accused before the Court, as well as the Court’s jurisdiction to hear the matter.
3D.G’s trial then proceeded over the course of five days.
4As with so many criminal trials, the outcome of this case turns on an assessment of the credibility and reliability of the witnesses called to testify.
The Relevant Evidence
S.G.
5When S.G. began giving her evidence on May 9, 2022, she was 48 years of age. She was born on […], 1974. She was then residing in Camrose, Alberta, where she had been living since 1999.
6She was involved in a common law relationship. She had two adult daughters aged 22 and 21.
7She had not been working since 2016 due to a physical disability.
8In reflecting upon the events giving rise to her complaint, she recalled that her mother, J.W., divorced her former spouse, R.G., in the early 1980s. R.G. had been her stepfather. S.G. only met her biological father on one occasion when she lived as a child in Neufchatel, Quebec.
9She was six years of age when adopted by R.G. He was a father figure to her for 7 to 8 years.
10She had an older sibling by some four years, a half-brother, D.G., who she believed was born on […], 1970.
11Her father, R.G., her mother, J.W., her brother, D.G., and she all lived as a family until 1985 or ‘86 when her second stepfather, R.W., came into her life. S.G. remembered that the family was then living in Neufchatel, not far from Québec City.
12R.G., a member of the Canadian military, and J.W. divorced shortly after the families returned from their first deployment to Germany.
13When S.G. was around 10 years old, J.W., along with her new partner, R.W., moved the family to Petawawa. By this point, J.W. and R.W. were married.
14S.G. was not able to remember the name of the school she attended in Petawawa. She could recall that they resided in private married quarters (a “PMQ”). She believed the family lived in Petawawa for just a year or so before they moved back to Germany.
15S.G. testified that her brother, D.G., returned to Canada earlier than she did when he was 18. This was prior to her mother’s death in Germany in 1990. Her brother and she never lived together again thereafter.
16In 1991, S.G. went back to Canada with her stepfather, R.W., and later began living with her grandmother in Québec.
17In 2016, S.G. attended at a police detachment in Camrose, Alberta to make a report about what D.G. did to her as a child. Her motivation for doing so, she stated, was the anger she felt from being sexually abused. She wanted help for her mental health as well.
18Given the historical nature of S.G.’s allegations and the place where the events were said to have occurred, the authorities in Alberta referred her to the military police in Ontario.
19In describing the sexual abuse she suffered, S.G. related that when her parents were not at home, D.G. would take her downstairs to the basement, have her take her clothes off and sodomize her. The odd time, she added, it happened in her room as well.
20Her evidence was that it took place in the PMQ at least a couple of times per week while her parents were away working or shopping. It never occurred while they were there.
21It also happened in tents when the family was camping near Petawawa while awaiting redeployment to Germany.
22S.G. described the layout of the PMQ as having a second level with three bedrooms, a main level and a basement. She had her own bedroom on the second level, as did D.G.
23She did not recall how the bedrooms were situated in relation to one another. She remembered there was a washer in the basement. The family used the basement as well for storage. She could not recollect what the basement floor looked like.
24S.G. did not have a babysitter when she lived in Petawawa. Her brother, D.G., was expected to “mind” her. Their mother worked “from sunup to sundown”.
25S.G. explained that as children, D.G. was holding something over her. He threatened to tell their mother that she had taken $10 out of their mother’s purse. According to S.G., he needed spark plugs for his moped. He told her to steal the money for him. She did so. He then told her he would tell their mother that she took it, unless she did what he said.
26She recollected that the abuse began in Québec. By the time the family was living in Petawawa, Ontario, she knew why D.G. would want her to go down to the basement with him.
27In defining what she meant by “sodomize”, S.G. explained that D.G. would put his penis in her anus. He did not insert it elsewhere.
28D.G. would grab her breasts too, but she was 10 years old, and as S.G. put it, “I didn’t have much”.
29S.G. denied touching her brother sexually. She could not remember whether he was wearing any clothes “when he was doing it”. She knew that she was not wearing pants when it was occurring, or if she had been wearing a dress, he would flip it up. He would reach for her breasts. He would go until he “finished”. By this, she meant until he ejaculated.
30She testified that when the abuse was occurring, she would go out of her body. She did not want to feel anymore. She did not recall any instances where she would go to the bathroom after being sodomized.
31She would ask her brother to stop, but the abuse had already been happening for a couple of years. She did not remember whether he would respond to her at those times.
32On occasion, he would lock her in his closet where he had Iron Maiden posters hanging. He would then play his music. This could occur on the same day or different days than when the abuse was occurring. However, as S.G. phrased it, “Honestly, after a while, it all rolls into one”.
33S.G. explained that the family lived in tents before redeploying to Germany because it was “cheaper”. Her mother was trying to pay off her stepfather’s debt. The tents were set up by a lake. The family stayed in them during the summer when she was not attending school.
34She did not believe that the tents were erected too far from the PMQ where they lived. Her mother and stepfather shared a tent. Her brother and she stayed in another.
35She recalled that there was a bathroom facility nearby. She estimated that the family lived as such for a period of six weeks. One of their cats, Smith, she remembered, was gone for three weeks, but came back just before the family left again for Germany.
36The tents were set up not far apart. S.G. could hear her mother learning German from her stepfather.
37She reckoned that the abuse perpetrated upon her by her brother in the tent happened more than three times per week. However, it occurred less frequently than in the PMQ. They were in a sleeping bag. She did not remember whether they each had their own, or whether they had a mattress.
38The abuse always happened at night. Her parents would be sleeping.
39When it occurred, she would “go off elsewhere” in her head. He would put his penis in her anus. She could not recall him touching her on other parts of her body, nor if they said anything to one another.
40As S.G. explained, “By this point, I’m so broken, I just did what I had to until he did what he had to.”
41S.G. confirmed that the only places where the abuse occurred in Ontario was at the PMQ and in the tent.
42S.G. specifically recalled that she told her second cousin, F.G., about the sexual abuse. She wrote a letter to him. He then came to visit the family from Québec at the PMQ. F.G. was around the same age as her mother, J.W.
43During the visit, F.G. told J.W. about what S.G. had written to him. When S.G.’s mother learned of it, she gave S.G. “crap”. In S.G.’s view, her mother blew it off. J.W. did not want to hear of it. She called S.G. a liar. She told her she should not be making up stories.
44S.G. elaborated that she had hoped to be able to go and live with F.G. He was not present when her mother admonished her.
45During F.G.’s visit, S.G. and he went to a fishing area near some rapids. She told him about the abuse again, and he just listened. He did not take her to the police. He did tell her mother, but he did not want to get involved, in S.G.’s view. Before F.G. left to go home, the subject was not brought up anymore.
46S.G. indicated that “something” changed her mind negatively about F.G. She learned of it when she reconnected with her aunt, C.G. S.G. did not ever talk to F.G. about it.
47S.G. added that her mother had lived through all sorts of abuse. S.G. believed that stress ultimately killed her.
48While giving her evidence, S.G. stated that she thought that F.G. was still alive. She had lost all contact with him since 1994 or 1995.
49S.G. explained that she did not tell anyone about the abuse as a child, nor did she go to Family and Children’s Services while living in Petawawa. She thought she would get into trouble if she did. She added that she lived through a great deal of physical abuse as well.
50The first person she told as an adult was her aunt, C.G. This initial disclosure occurred roughly 15 years ago in Cranbrook, B.C. Neither woman made any plan of action for going forward with the complaint to the authorities.
51S.G. told her ex-husband about the abuse, as well as her current common-law partner. She also sought out assistance for her mental health.
52The last occasion upon which she recalled being sexually abused by D.G. was in Kippenheimweiler, Germany. Her mother, J.W., S.G. believed, had travelled to Amsterdam. S.G. threw a lamp at D.G. while he was attempting to accost her in their mother’s bedroom. Her mother, J.W., S.G. recalled, “gave me crap” upon her return, presumably over the broken lamp.
53In describing the mechanics of how she was sexually abused, S.G. explained that her brother would touch her breasts underneath her clothing. She would be facing down on her stomach. It was always that way. She would have her legs closed. He would use either butter, Vaseline or his saliva to lubricate her anus. She could not recall whether she was sodomized every single time her brother sexually abused her. She would attempt to resist him, but he was older and stronger.
54Additionally, D.G. would hit her. She would end up with Charlie horses on her arms and thighs. He would lock her in his closet. He played head games with her. For example, he would frequently threaten to tell their mother about her stealing to get her into trouble. He also told her that nobody would believe her if she spoke out. By the time they arrived in Petawawa, the abuse had been going on for a couple of years.
55S.G. added that she could not tell when D.G. was sodomizing her if he was using alcohol or drugs. He smoked pot when they lived in Petawawa. His parents caught him. He was also drinking alcohol before they moved to the PMQ.
56S.G. testified that she did not speak to D.G. about what he did to her until 1999 or 2000. When she did, he apologized to her. He told her that he had Tourette’s syndrome, and that is what was making him do it.
57She recalled that they were at his home in Wainwright, Alberta where D.G. was living at the time. They were sitting at his fire pit. She was either going to or coming from her ex-husband’s, parents’ home in Vegreville. She was living in Moose Jaw, Saskatchewan at that point. Her ex-husband and she had stopped to visit with D.G. and his spouse.
58S.G. explained that she was reaching out to family – “anybody” – including D.G.
59She thought she may have said “Oh . . . okay”, or “It’s okay”, in response to his apology. She did not like confrontation.
60D.G. elaborated that Tourette’s caused violent outbursts. She could not remember any further details provided by her brother as he attempted to explain himself.
61S.G. knew nothing of Tourette’s syndrome at the time. She surmised, in any event, that it was never acceptable, nor an excuse for his behaviour toward her.
62She denied that she spoke to D.G.’s spouse about the exchange between her brother and her.
63Under cross-examination, S.G. reaffirmed that she believed the family stayed in tents for approximately six weeks before leaving for Germany. She deduced that they lived temporarily like that for a period of at least three weeks, because their cat, Smith, had gone missing for two. She understood that their housing overseas was not ready. They had to vacate the PMQ in Petawawa, because it was likely slated for another military family.
64She speculated that although the military would have provided funding for her family to stay in a hotel, her mother was probably trying to save money to pay off debts. Consequently, they camped for a few weeks preceding the redeployment to Germany.
65Both tents the family utilized were ‘2 man’ in size. The permanent buildings nearby had facilities such as showers and toilets. She was not sure if it was a formal campground, but she imagined it was.
66S.G. reiterated that her parents’ tent was located not far from her brother’s and hers. She estimated they were roughly 6 feet apart. She could hear her mother loud and clear when she was practising her German and saying the alphabet.
67S.G. could not recall if there were other tents located near theirs.
68She knew that when she gave her statements to police about the abuse on July 26, 2016, and September 15, 2016, they were video and audio recorded. Prior to testifying, she confirmed that she had reviewed the transcript of her latter police interview.
69She agreed that she told police she had camped 6 to 8 weeks prior to leaving for Germany. However, she added that through therapy she has been receiving over the last four years, she has learned that dates are hard to keep track of. She was confident that the family had spent “a long time” camping before going.
70She agreed as well that she told police that D.G. had sodomized her every night for six weeks in the tent. She agreed that when she gave her earlier testimony, she said the abuse did not happen as often in the tent as it did in the PMQ.
71She then revised her estimate of how frequently it was occurring to 3 to 4 times per week both in the PMQ and in the tent.
72She specifically remembered how D.G. caught a big pike while they were camping. The family was quite excited. They cooked the fish and ate it.
73S.G. asserted that she was 100% certain the family camped near Petawawa prior to going to Germany the second time.
74She was also sure that her mother worked when the family lived in the PMQ, although she could not remember where. She agreed that her mother would typically be home in the evenings. Her stepfather, R.W., was employed on the base and was away during most work days.
75S.G. remembered that D.G. and she both went to school regularly while they lived in Petawawa. However, she did not remember her brother working on the base removing asbestos from buildings there.
76She recalled there were “plenty of times” when D.G. and she were home while her parents were away. She could not remember any of his friends, but she acknowledged that he would be away with them in the evenings. Of course, there were times when her parents, her brother and she were home together in the evenings as well.
77S.G. testified that both her stepfathers, R.W. and R.G., hit her brother and her with belts as a form of corporeal punishment.
78She agreed that as a matter of arithmetic, if the acts of sodomy were occurring at a rate of 3 to 4 times per week in both the PMQ and the tent, in a year she would have been subjected to a minimum of 156 sessions of abuse.
79She stated that the anal sex was painful. She was only 10 or 11 years of age at the time.
80She explained that she was never “checked out”, or in other words, examined medically or physically, because she did not tell her parents what was happening.
81She had no recollection of having difficulty walking due to the frequent, anal sex. She recalled taking Metamucil, which “messed up [her] system”.
82S.G. indicated that D.G. would hit her with the belt as well in Québec when the sexual abuse started.
83She reiterated that it was mostly during the middle of the night that the incidents of sodomy occurred in the tent when her parents were sleeping. She experienced extreme pain when they did happen. D.G. would pin her down.
84She did not look to her mother, J.W. and her stepfather, R.W., for help. She had given up hope. It was happening night after night. She never screamed. Her mother, she reckoned, already knew what was occurring because F.G. had spoken to her about the letter she had written to him.
85S.G. explained that she did not remember a lot of details. They were not important to her. She was trying to survive every day.
86When reflecting upon her visit with her brother in Wainwright, S.G. emphasized that she was attempting to establish family connections. She reached out to D.G. as a result. She called him before going to his house.
87She learned where D.G. was living from her aunt, C.G. S.G. had her ex-husband look her brother up in the phone book. She was reaching out to her brother because he was the closest connection she had next to her mother. She did so even though he was the one who had sodomized and terrorized her hundreds of times.
88She recognized that even though her mother had died in 1990, D.G. had been the one and only other constant in her life.
89She believed that they met initially at a restaurant in Wainwright. When challenged that no such meeting or visit occurred between D.G. and her, she was adamant that it had. She vehemently denied that the last time D.G. and she saw each other was at her mother’s funeral in 1991.
90She went on to describe how D.G. lived behind a 7-Eleven convenience store and a Kentucky Fried Chicken outlet in Wainwright. She remembered too the fish tanks he had in his home.
91She offered, when confronted that she did not write a letter to her cousin, F.G., that she had pictures of her mother, J.W., F.G. and her together in Petawawa.
92S.G. repeated that her mother was very upset with her for telling F.G. what D.G. was doing to her. It was clear to S.G. that her mother had read the letter she had written to him.
93During their walks together to the river, S.G. told F.G. again what was happening. F.G. said he could not take her to live with him. She needed to stay with her mother.
94S.G. was adamant that the disclosure of the sexual abuse to F.G. occurred.
95When confronted about what she told police on December 16, 2015, that she did not recall how the letter was returned to her, S.G. clarified that F.G. gave it to her mother.
96S.G. acknowledged that she told police she did not think F.G. read the letter. She explained the apparent inconsistency by pointing out that once F.G. got the letter, she never got it back.
97She agreed as well that she did not tell police about any follow-up conversations with F.G. after she sent the letter to him.
98To S.G.’s recollection, she sent the letter to F.G. a few weeks prior to his visit with her family at the PMQ in Petawawa. She did not know whether his visit was planned. She believed he could have come in August 1985.
99She described F.G. as though he was a big brother to her. She told him as well about how she had been spanked on her bare bottom by her stepfather, R.W. She made mention of this also in the letter to F.G.
100She remembered that she put a crucifix in the letter. It was one that she had worn around her neck. She believed it was made of gold.
101She wrote the letter in French. She believed it could not have been any longer than a couple of pages. French was her first language.
102S.G. recalled that the day her mother died was November 2, 1990. Thereafter, she returned from Germany to Canada to live with her grandmother in Québec. She then visited with F.G. again.
103She estimated that the last time she would have seen F.G. in person was in 1994 or 1995. She stayed with him for a couple of days.
104S.G. explained that any hard feelings she had toward F.G. had nothing to do with her brother, D.G.
[105] She disagreed that D.G. never: a) sodomized her, b) touched her breasts, c) stayed with her in a tent near Petawawa, and d) threatened to tell their mother about stealing $10 from her purse.
106She was absolutely certain that she wrote a letter to F.G. in which she told him about the sexual abuse that D.G. was perpetrating upon her.
107Under re-examination, S.G. confirmed that F.G. gave the letter and the crucifix to her mother.
108Any hard feelings between F.G. and S.G. had to do with an urn containing her mother’s ashes, which had been taken from her grandmother’s cottage in Asbestos, Quebec. S.G. explained that her grandmother wished to be cremated and to have her ashes contained with her daughter, J.W.’s, S.G.’s mother. Those conversations occurred during the years between 2013 and 2015.
109S.G. only became aware of the urn holding her mother’s ashes and their whereabouts when she returned from Germany to Montréal to live with her grandmother in her apartment.
110Her aunt, C.G., took the urn from her grandmother’s cottage while S.G. was visiting Asbestos with her. C.G. brought the urn to the vehicle in which S.G was waiting at the time.
111F.G. was not pleased to learn of how C.G. took the urn.
112S.G. was able to identify several photographs depicting her mother, J.W., her brother, D.G., her cousin, F.G., and her when she lived at the PMQ in Petawawa with her family. She received those pictures from her aunt, C.G.
113The photographs were taken while F.G. was visiting S.G.’s family after she had sent him the letter.
114On the back of one of the photographs, someone had written “Pettawawa ’86 aout”. To S.G.’s recollection nevertheless, the family had lived in Petawawa between 1984 and 1985.
D.G.
115At the time he testified, D.G. was 52 years of age. He was residing in Edmonton Alberta, where he had been for the past 33 years. He was single and supporting himself on a disability pension.
116He explained that the last time he had lived together with his half-sister, S.G., was in Kippenheimweiler, Germany. He was then 18 years of age. She was 12.
117He believed he last saw her at their mother’s funeral in 1992.
118To D.G.’s recollection, as a boy he lived in Petawawa in 1984 to 1985. He was there with his family, as it was then composed, for just one year. It included his stepfather, R.W., his mother, J.W., his sister, S.G., and him.
119They had been in Neufchatel, Quebec prior thereto.
120The PMQ had three floors and an unfinished basement. His mother and stepfather were in one bedroom together, his sister had her own and he had one as well where his clothes were kept. However, D.G. described himself as a “basement dweller”. That is where he preferred to sleep.
121D.G. testified that the family only lived in the PMQ while they were in Petawawa. They did not camp in tents. Nor did his mother work while they were posted there.
122D.G. believed initially that he was 13 or 14 years old while his family was in Petawawa. He attended school from 8:50 AM to 3:45 PM every weekday, and in his spare time, he played guitar in a band.
123During the summer, he was working from 7 AM to 6 PM stripping houses of asbestos.
124The family then moved back to Lahr, Germany at the end of the summer.
125D.G. recalled that S.G. was attending school every day as well unless she was sick. He could not recall how she was spending her time otherwise during the summer the family was in Petawawa.
126D.G. asserted that he did not spend any real time with his stepsister, S.G. He was six years older than she was. He would go home after school or after work, have supper, and then play in the band in the evenings.
[127] He denied that he: a) anally penetrated her vagina, b) grabbed her breasts, because she did not have any, c) hit her with a belt, d) locked her in a closet, and e) threatened to tell their mother about how she had stolen $10 from their mother’s purse.
128D.G. stated that he did not have a vehicle at the time, so he would not need any money for spark plugs.
129D.G. indicated he had no contact with S.G. since 1992. They did not speak when she lived with her grandmother. As he put it, “That’s just the way it was”.
130D.G. denied that he apologized to S.G. in 1999 when he was living in Wainwright. He maintained that she did not come to visit him then.
131He explained that he was diagnosed with Tourette’s syndrome in 2004. S.G. could not have explained his condition to her because he did not know of its existence at that point.
132D.G. remembered a visit from his cousin, F.G., while the family was in Petawawa. D.G. thought that his cousin came with his aunt, C.G.
133D.G. stated that their stepfather, R.W., never hit S.G. or him with a belt.
134Under cross-examination, D.G. confirmed that his date of birth was […], 1970.
135He agreed that he lived in a many different places as a “military brat”. His mother had married two soldiers “back to back”. He remembered living in Val Cartier, Moisie, Lahr, Neufchatel, Petawawa and Lahr again. When he was 18 years of age, he left Lahr to move to Calgary. He remained in Alberta for virtually his entire adult life thereafter.
136He began playing guitar while he was in Petawawa at approximately 14 or 15 years of age. The family was only in that community for one school year. His stepfather, R.W., was then posted to Lahr.
137He had no recollection of camping as a family in the Petawawa area. To his mind, that happened while they were in Moisie.
138He pointed out that there was no need for the family to camp out in tents. The military paid for everything including accommodation.
139D.G. did not remember the name of the school he attended as a teenager in Petawawa.
140He did recall the name of his friend, Gary Densmore, to whose residence he would go to jam while in Petawawa.
141He also believed that the name of the company he worked for was “Aman Construction”. He thought that his stepfather, R.W., obtained that job for him.
142D.G. maintained that he was 15 years of age the entire time he worked for Aman Construction. He was “on the books” as an employee with the company. His chief task was to strip asbestos from the buildings. He pointed out that his grandfather worked in an asbestos mine his whole life. He died at 98 years of age.
143He remembered that his employer was a shady company. At times, he had difficulty getting paid.
144D.G. knew that he celebrated his 16th birthday in Lahr.
145He was adamant that his mother did not work while they lived in Petawawa. Nevertheless, he conceded that there were times when he would be alone with his sister, S.G. He babysat her. If she needed anything, she would come downstairs, or he would go upstairs, to attend to whatever she was asking for. He could not recall whether there were specific times when he knew his parents would be away.
146D.G. vehemently denied that he ever touched S.G. sexually in any way whatsoever.
147In describing the layout of the basement of the PMQ, he explained that he had his bed and guitars down there. The walls and floor were made of cement. He thought he may have had something on the floor, but he could not say so with any certainty.
148He explained that he wanted to be in the basement because he wished to be away from everybody.
149He stated that S.G. would only go down to the basement very occasionally. Others and she might come down to see him there. It was also where the laundry was done.
150D.G. repeated that the family never camped in tents in the Petawawa area. Nor did he recall a pet cat going missing. They did go camping in Germany, but never for as long a period as three weeks.
151The PMQ they occupied in Germany was an apartment all on one floor. He denied that his sister ever threw a lamp at him while they resided overseas. Nevertheless, he conceded that S.G. and he fought occasionally.
152D.G. reiterated that he did not threaten to tell his mother that S.G. had taken money from her purse. Nor did he instruct his sister to take the money. He admitted that he took $2 on one occasion from his mother’s purse. He got caught, but did not try to pin it on his sister. His stepfather, R.G., hit him with a belt. However, D.G. claimed that his relationship with his other stepfather, R.W., was a good one.
153He seemed to concede that he was inconsistent in his evidence about the age difference between S.G. and him. It was not six years. Rather, it was four. Later in his evidence, he conceded this error.
154D.G. denied that he would ever watch TV or play games with S.G. He explained that if he tried to share the couch with her, she would “kick [him] in the nuts”. By that, he meant she would slam her heel onto his crotch area and think that that was funny.
155He added that his sister and he never got along – “ever”.
156He testified that the family never really shared meals together. He would stay away from everyone in the basement.
157D.G. pointed out that his sister and he hardly spoke at their mother’s funeral. They never really had a chance, in his view, to interact. Nor did they ever remain in contact over the years with birthday cards, calls or emails. As D.G. put it, “I didn’t keep in contact with anyone. I’m not a people person. I never have been.”
158He did not “care” when his sister went to live with his grandmother after the death of their mother. He did not particularly like S.G. However, he denied that he avoided her because he had abused her.
159He repeated that the visit between them, which S.G. had testified happened in 1999 in Wainwright, did not occur. He offered no apology to her.
160He agreed that he was diagnosed with Tourette’s syndrome in 2004. Later in 2006 or 2007, he was also diagnosed with social anxiety. Subsequently, in 2017, he was diagnosed with bipolar disorder, and ADHD as well. The bipolar condition caused his moods to go from high to low.
161He claimed he did not tell anyone about the Tourette’s diagnosis except his wife. He did not speak with family members. He did not know how S.G. would have come to know about his Tourette’s.
162He confirmed that S.G. and his wife, L.P., did not have any form of relationship of which he was aware.
163He wholeheartedly disagreed that the only way S.G. could have learned of his Tourette’s was if he had told her about it.
164He added that, in any event, his Tourette’s was a misdiagnosis. Nevertheless, he did suffer from twitches and involuntary body movements. He also had problems with impulse control.
165He went to see a neurologist for the twitching. It was then that he learned of the Tourette’s misdiagnosis.
166D.G. pointed out that he was abused himself, but not by someone within his household. He never discussed the subject with his sister, S.G. He has been in counselling for 30 years because of his own abuse.
167He denied that he had a close relationship with F.G., who had come to visit his family while they were at the PMQ in Petawawa. F.G. was older than him. F.G. did not visit in Lahr.
168D.G. did not maintain any sort of contact with F.G. over the years following his visit to Petawawa. There were no emails, no telephone calls, no texts, nor any other form of communication between them. D.G. knew nothing of the letter which S.G. testified she sent to F.G.
169Recently, D.G. spoke to F.G. to assist his lawyer with a language barrier. D.G. speaks French. His lawyer does not.
170D.G. admitted that he had problems with alcohol as an 18-year-old. He required medical treatment. He suffered serious facial injuries from a fall and ended up in hospital.
171He does not drink alcohol anymore. He quit in 2014.
172D.G. added that he also had drug dependence issues. Those started in his 20’s. He was addicted to cocaine. However, he has not abused drugs since 2017 or 2018.
173D.G. denied that there was ever any sexual touching, even accidentally, with his hand or his penis being placed on, in or near the body of his stepsister, S.G. He allowed that if they were play wrestling, it could have happened, but he did not remember.
174Under re-examination, D.G. stated that he last had contact with S.G. in 1988 before he returned from Germany to Canada. He had no idea when she came back. However, he did know that she ended up with their grandmother.
175He believed that she was still living in Europe at the time of their mother’s death.
176D.G. started his relationship with his ex-wife, L.P., in 1998. The marriage lasted until 2017.
177He explained that he probably mentioned his half-sister, S.G., to L.P.
178He was not aware of any contact S.G. had with his mother’s side of the family but for their grandmother.
179L.P. met his grandmother, Y.B., in Trois Rivieres, Quebec. L.P., of course, was aware of D.G.’s past abuse and his mental health diagnoses.
F.G.
180When he testified on September 16, 2022, F.G. was 63 years old. He was residing in St. Bruno de Montarville, Quebec. He was working still after 40 years in the aeronautics industry.
181His relationship to D.G. and S.G., he explained, was that they were the children of his cousin, J.W. It had been close to 20 years since he had last seen either D.G. or S.G. However, he had spoken to D.G. just a week prior to giving his evidence in Court. Aside from that telephone conversation, there had been no contact.
182F.G. remembered a time when D.G. and S.G. lived in Petawawa. He believed this was in the mid-80s. At that time, F.G. was living in Longueuil, Quebec. He visited them one weekend when he would have been 26 or 27 years old.
183They were residing on the military base in a PMQ. While there, he spent most of his time with S.G. It was a very normal acquaintance he had with his little cousin. The two of them had not shared a close relationship before then.
184F.G. had no recollection of receiving a letter with a crucifix from S.G. prior to his visit to Petawawa. If that had happened, as F.G. put it, “I don’t know how I would forget it.”
185He denied that S.G. revealed to him any account of having been sexually abused. He remembered spending time with her in the woods and near the water, but she did not tell him anything to that effect.
186Under cross-examination, F.G. confirmed that following the death of J.W., S.G. went to live with her maternal grandmother, who took care of her.
187F.G. was not aware of any talk within the maternal side of S.G.’s family that D.G. had done anything to hurt S.G. As F.G. stated, “That’s something you can’t forget.”
188F.G. testified that the military police told him he received a letter from S.G. Further, they suggested he gave it to his cousin, S.G.’s mother, J.W.
189F.G. explained that he would have, of course, told J.W., if he had received such a letter from S.G., but he did not.
190F.G. stated that the first time he had heard of D.G. hurting S.G. was two months prior to testifying, when he received a call from the military police. Thereafter, F.G. spoke to D.G. and his lawyer.
191F.G. did not recall spending time with D.G. when he visited Petawawa in the 80s. Upon being presented with photographs of himself with D.G. during the visit, he agreed that D.G. was around long enough for the picture to be taken. However, F.G. did not recall D.G. spending any significant amount of time with the family. Indeed, he did not remember D.G. at the PMQ at all. To F.G.’s recollection, D.G. was with his friends.
192Although F.G. stayed overnight at the PMQ, he could not remember its layout.
193Nor could F.G. recall S.G. asking him if she could come live with him. Even if she had, F.G. explained, he would not be able to take her because he would be going above her grandmother’s head. In other words, his family would not have approved.
Defence Position
194Defence counsel submitted that a W.(D.) [1] analysis must be applied to the evidence called at D.G.’s trial. On all three prongs of the steps to be followed, as set out in W.(D.), defence counsel argued, D.G. is entitled to an acquittal.
195Firstly, his denial was credible. D.G. did not shy away from acknowledging the opportunity to have committed the crimes with which he was charged. He did not have a close relationship with his sister, S.G. He avoided her, as well as the other members of his family. He was not a “people person”.
196D.G. did not attempt to cast himself in the best light possible. He was four years older than S.G. He was, for the most part, uninterested in her life and led a separate one of his own.
197He conceded as well that he could have accidentally touched her sexually while they play wrestled.
198This testimony was believable. There was no basis to reject it. Indeed, it ought to be accepted by this Court.
199Secondly, even if not accepted, it raised a reasonable doubt.
200Thirdly, even if D.G.’s evidence was not accepted by the Court, nor did it raise a reasonable doubt, on the basis of the evidence which the Court would be inclined to accept, the Court cannot be convinced of D.G.’s guilt beyond a reasonable doubt.
201One would expect, defence counsel submitted, that S.G. would have suffered some form of physical injury if she had been sodomized 3 to 4 times per week for a full year. However, she testified that there was no lasting or impactful injury arising from the abuse she said she endured.
202Further, it would be highly unlikely that the sexual abuse would go undetected in tents erected only 6 feet apart. It would be next to impossible that D.G.’s and S.G.’s parents would not have seen or heard something out of the ordinary, especially if it was happening at the frequency S.G. maintained it was.
203Most damning as well was the lack of any confirmatory evidence from F.G. in respect of the letter S.G. says she wrote to him complaining of the sexual abuse and seeking his intervention.
204F.G. testified that if such a letter had been written to him, he would have remembered it. He did not. Nor could he recall any conversation during the time he spent with S.G., where she would have disclosed to him something as serious as being sexually abused by her older brother, D.G.
Crown’s Position
205The Crown urged upon the Court to apply common sense propositions to the evidence called at D.G.’s trial, but without reliance on sexual stereotypes and myths.
206When regarded in that light, the lack of physical evidence to show S.G. was sexually assaulted was entirely understandable. S.G. did not tell anyone about what was occurring to her. She was not taken to a doctor.
207She was an adult witness testifying about childhood events from almost 40 years into her past. Inconsistencies in her evidence could be attributed to the passage of time, or the frequency at which the abuse occurred. (see R. v. R.C. (2018) ONSC 230 at para. 107)
[208] The Crown contended that D.G.’s evidence could be rejected because: a) his memory had been affected through alcohol and drug use over an extended period in his past, b) his evasion in answering questions about the nature of his relationship he shared with his younger sister, c) his surprising and odd response to why he would not have touched S.G.’s breasts (i.e. she did not have any), and d) his lack of regard for his younger sister (i.e. not interacting with her at their mother’s funeral, and generally not caring about her life).
209Furthermore, D.G.’s testimony made no sense in that he pointed out that S.G. must have concocted her evidence about a meeting with him in 1999, when he lived in Wainwright, including her claim to have then received an apology from him. S.G. could only have come to know of the Tourette’s diagnosis, if and only if, D.G. had told her about it. She would have no other source of information to be made aware of it unless it came from D.G. himself. His wife, L.P., and S.G. were not close. It was simply impossible that S.G. could have learned of her brother’s condition from anyone other than D.G.
210There was no evidence to suggest that D.G.’s wife, L.P., would have told S.G. about the Tourette’s diagnosis. Neither S.G. or D.G. indicated any communication occurred between S.G. and L.P. Tourette’s is not a common condition.
211The Crown conceded that the letter which S.G. testified she wrote to her cousin, F.G., before he visited her family in Petawawa was “a problem”. However, any reasonable doubt it may create could be overcome by the unique, confirmatory evidence offered by D.G. himself about his Tourette’s. He must have told S.G. about it during their ‘get together’ in Wainwright in 1999, when he apologized about the years of sexual abuse which he inflicted upon her. There was no other possible means by which she could have learned of it.
The Law
Adult Witnesses Testifying about Childhood Events:
212In Paddy-Cannon v. Canada (Attorney General) 2022 ONCA 110, Coroza J.A. reminded triers of fact of the proper approach to be taken in assessing the evidence of adult witnesses testifying about distant childhood events. He wrote:
[33] It is undisputed that when adult witnesses testify about events that occurred when they were children, in general their evidence should be assessed by the criteria applicable to adult witnesses: W. (R.), at p. 134. However, inconsistencies and lack of memory in that testimony must be considered in the context of the age of the witness at the time of the events: W. (R.), at p. 134; see also R. v. Pindus, 2018 ONCA 55, at para. 37; R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at para. 34, leave to appeal refused, [2017] S.C.C.A. No. 274.
213Coroza J.A. went on to state as follows:
[37] In his reasons, the trial judge referenced this court’s decision in R. v. Sanichar, 2012 ONCA 117, 280 C.C.C. (3d) 500, rev’d, 2013 SCC 4, [2013] 1 S.C.R. 54. In that case, Blair J.A. for the majority stated that in cases involving historic acts of sexual and physical abuse, particular scrutiny is called for in approaching the reliability of the evidence. The trier of fact must be mindful of serious inconsistencies in a witness’s account as well as the subtle influences that may have distorted memory over time: Sanichar, at paras. 38-39. The passage of time may influence the witness’s ability to observe, recall and recount the events at issue accurately: Sanichar, at para. 70, per Laskin J.A. (dissenting, but not on this point). The trial judge was clearly alive to this caution in Sanichar.
[38] Sanichar does not, however, instruct a trial judge to reject witness testimony as unreliable because time has passed. The trial judge concluded that “[i]n this case, the passage of several decades make it impossible for me to determine that the [appellants’] evidence is reliable.” His reasons reveal that he treated the passage of time as nearly determinative of the appellants’ unreliability. Respectfully, the passage of time cannot overwhelm a trier of fact’s assessment of the evidence, and I agree with the appellants’ submission that treating the passage of time as determinative in this case is akin to imposing a limitation period on the appellants’ claim. This is the wrong approach.
[39] I accept that Sanichar advises triers of fact to be mindful of time, and appropriately cautious, when assessing testimony of events from a distant past. However, as noted above, W. (R.) and other cases require that when assessing the testimony of adults trying to recount childhood memories, triers of fact must also be mindful of the context when addressing inconsistencies and a lack of memory.
[40] In W. (R.), McLachlin J. (as she then was) stated, at p. 134:
It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to “adult” or “child” standards — to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever 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. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to 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. [Emphasis added.]
[41] In Pindus, Laskin J.A. stated, at para. 37, that “when an adult witness gives evidence about events that took place in childhood, inconsistencies and lack of memory have to be considered in the context of the age of the witness at the time of the events.”
214I will, of course, guide myself in accordance with the direction offered by Coroza J.A. above, as I consider and deliberate over the evidence of S.G and D.G. in the case before me.
The Meaning of Proof beyond a Reasonable Doubt:
215In a very recent case I decided, R. v. McLaren 2023 ONCJ 92, I adverted, as I must, to the meaning of “reasonable doubt”. I had the following to say:
The standard of proof beyond a reasonable doubt is an age-old principle of criminal law in Canada and virtually every other common law jurisdiction. Triers of fact must be ever conscious of the high burden of proof placed upon the Crown, if ever the accused’s right to be presumed innocent is to be rebutted.
Recently, my colleague, Brochu J., in R. v. Hawryluk, (unreported), offered these helpful commentaries on the meaning of reasonable doubt:
[39] Like every person accused of a criminal offence, Mr. Hawryluk begins this trial presumed to be innocent of the offence with which he is charged. That presumption remains intact unless and until the Crown proves beyond a reasonable doubt that he is guilty. It is the Crown that bears the onus of proving the essential elements of the offence beyond a reasonable doubt. That onus never shifts to the accused.
[40] Intermingled with the presumption of innocence is the standard of proof required to displace that presumption. To secure a conviction in a criminal case, the Crown must establish each essential element of the charge against the accused beyond reasonable doubt. This standard of proof is very stringent. It is a standard far beyond the civil threshold of proof on a balance of probabilities.
[41] The expression “proof beyond a reasonable doubt" has no precise definition, but it is well understood. The Supreme Court of Canada outlined a suggested model jury charge in R. v. Lifchus, [1997] 3 S.C.R. 320. This is the definitive guide for criminal trial courts in Canada. It is worth setting out here verbatim:
The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.
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.
Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.
[42] Three years later, in R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, the Supreme Court of Canada clarified at para. 13 that:
In situating the criminal standard of proof, “it falls much closer to absolute certainty than to proof on a balance of probabilities”: Starr, at para. 242, per Iacobucci J.
W.(D.) :
216I must, of course, apply a W.(D.) analysis to the evidence adduced at D.G.’s trial. Clearly, the credibility of both D.G. and S.G. must be carefully assessed. Their reliability as historians for significant past events is very much worthy of consideration as well.
217Essentially, in applying the law, I must acquit D.G. if I believe his testimony regarding the incidents in question, after I assess the evidence as a whole. (see R. v. Hull (2006)) at paras. 4 – 5)
218If I do not believe D.G., but his evidence nevertheless raises a reasonable doubt, to my mind upon my assessment of the evidence in its totality, I must find him not guilty.
219Even if I do not accept the evidence of D.G., nor does it raise a reasonable doubt, I must still be convinced of his guilt beyond a reasonable doubt based on the evidence which I do accept, if I am to convict him.
Analysis:
Do I believe the evidence of D.G.?
220D.G.’s defence was essentially one of denial. For the most part, he was unshaken in maintaining he did not ever inappropriately touch S.G. Of course, a blanket denial is difficult for even the most skilled cross-examiner to unravel.
221The one significant weakness, to which the Crown could point, in D.G.’s evidence was the fact that S.G. knew of his Tourette’s diagnosis, or misdiagnosis. Somehow, S.G. found out about it.
222It is true that D.G. could offer no explanation as to how S.G. could have learned of the Tourette’s if he were not the source of that information himself. Notwithstanding, I cannot and will not find that this was the only way S.G. could have been made aware of the diagnosis, and that it was during a discussion which took place between her brother and her at his home in Wainwright in 1999.
223S.G. knew D.G.’s wife, L.P. D.G. told his wife about his Tourette’s.
224S.G., on her own evidence, was looking to make familial connections in 1999. She was reaching out. Although no direct link between S.G. and L.P. was made out on the evidence called at trial, the possibility for communication and an exchange of information between these two women existed.
225L.P. knew D.G.’s and S.G.’s maternal grandmother, Y.B., as well. L.P. visited Y.B. in Trois Rivieres, Quebec. L.P. could have then told Y.B. about D.G.’s Tourette’s. In turn, Y.B. could have shared this information with S.G.
226L.P. was not called as a witness at D.G.’s trial. As a result, the question of whether there was any actual communication between S.G. and L.P. went unanswered. This assumes as well, of course, that L.P. is alive still and has the capacity to testify.
227In short, I can speculate that S.G. had the means to learn of D.G.’s Tourette’s condition through someone other than D.G. himself.
228However, in my view, I can far more safely conclude that, in all likelihood, a meeting in Wainwright took place between S.G. and D.G. When S.G. was challenged in cross-examination that no such encounter occurred, she was quick to point out how there was a 7-Eleven and Kentucky Fried Chicken near where D.G. and his wife, L.P., lived in Wainwright. She was also able to speak of the fish tanks D.G. had in his residence. None of this evidence S.G. provided seemed contrived to me. It was natural and free flowing. I believe the meeting between D.G. and S.G. happened.
229For this reason, primarily, I must reject the evidence of D.G. He denied that there was ever a ‘get together’ between S.G. and him in Wainwright in 1999. I do not believe him.
230I find D.G. was generally evasive in explaining his lack of interaction with and interest in his younger sister over the course of their childhood. To describe his attitude toward her as cold would perhaps be an understatement. D.G. was most uncaring in respect of S.G. over the course of their many years spent as young siblings together. The tenor of his testimony made this clear.
231I am much more inclined to think that that D.G. wished to avoid S.G. out of shame and guilt over his abuse and mistreatment of her.
Does the evidence of D.G. raise a reasonable doubt?
232Having rejected the evidence of D.G, I certainly cannot find that it raises a reasonable doubt in my mind. It does not even come close to doing so.
On the basis of the evidence I do accept, am I convinced beyond a reasonable doubt in the guilt of D.G.?
233My assessment of the evidence as a whole adduced at D.G.’s trial does not, of course, end with the completion of my inquiries under the first two branches of W.(D.).
[234] Turning my mind to the evidence which I do accept, I find that: a) S.G. was a credible witness and a relatively reliable historian, notwithstanding the passage of time between when she testified and when the acts complained of were said to have occurred, b) F.G. was likewise credible and reliable, and c) for the above stated reasons, D.G.’s evidence was neither credible nor reliable.
235S.G. was probably telling me the truth about what she says her brother did to her. If ever I had pause to suspect embellishment on her part, it was when she spoke of the frequency at which the sodomization was occurring. To S.G., the abuse, reflecting as she was as an adult upon her childhood, likely appeared endless. For that reason, she may well have been prone to some exaggeration.
236I was not at all persuaded by defence counsel’s submission to disbelieve S.G. due to a lack of corroboration of the alleged sexual interference with her person. The absence of physical evidence, such as blood, is not unsettling. S.G. herself did not say she bled, nor that she felt any wetness in her anus after D.G. allegedly put his penis inside her and ejaculated on countless occasions. I cannot infer, if that is what defence counsel was inviting me to do, that there must have been an injury suffered by S.G at some point causing her to bleed, given her young age at the time, if the acts of sodomy said to have been forced upon her, were true.
237However, I must entertain a reasonable doubt when I consider the testimony given by F.G. I consider him to have been very much an independent witness. There was no reason for him to favour either D.G. or S.G. Indeed, if he seemed closer to either one, it was to his little cousin, S.G., with whom he spent most of his time, when he visited Petawawa as a young man then in his mid-20s somewhere between 1984 and 1986.
238I share F.G.’s view that if S.G. had told him she was being sexually abused by her brother, F.G. would have remembered it. I do not believe for an instant that F.G. could forget something so disturbing, or was embarrassed or ashamed to this day at any inaction or inability on his part to offer assistance to S.G. To the contrary, F.G. struck me as a man who would have acted to put an end to any abuse which he believed was being perpetrated upon S.G. by her brother, D.G. He would have done more than just tell their mother, J.W. F.G. would have done the right thing. He would have gone to the authorities with the allegation.
239S.G.’s description of the two-page letter written in French with a crucifix placed inside the envelope was graphic. No greater cry for help could have been made by the little girl she was at the time.
240Furthermore, she testified that she had a ‘follow up’, face-to-face conversation with F.G. about the sexual abuse shortly after his arrival in Petawawa. This account by S.G. stands in stark contrast to F.G.’s lack of any recollection of such a letter, or subsequent discussion about its theme between them.
241I must therefore make a finding that the letter may not have even existed. I am left to doubt whether S.G. ever told F.G. about any sexual abuse being inflicted upon her.
242To my mind, this finding is damning to S.G.’s evidence as a whole. It shakes my belief in her entire account of the years of sexual abuse she says she suffered at the hands of her brother. It leaves me no basis for being convinced of D.G.’s guilt.
243In essence, I find that S.G. tried her best to tell the Court the truth about what she says her brother did to her so long ago. It is her truth. Indeed, I find it may well have happened as she said. However, in light of F.G.’s evidence, I cannot be sure that any of it did.
244The one significant inconsistency as well in S.G.’s evidence was that she told police she only thought F.G. read the letter. To the contrary, she testified that F.G. told her mother, J.W., what she had written to him. F.G. must therefore have read the letter.
245In short, I am not confident of D.G.’s guilt beyond a reasonable doubt after a complete review of the evidence called at his trial.
Conclusion:
246For the above reasons, I must therefore find D.G. not guilty.
DATED: April 6, 2023
March, M.G., J.
[1] R. v. W.(D.), [1991] 1 SCR 742 A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.