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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
ONTARIO COURT OF JUSTICE
DATE: 2023 01 03 COURT FILE No.: Pembroke 21-0609
BETWEEN:
HIS MAJESTY THE KING
— AND —
RP
Before Justice J.R. Richardson
Heard on October 21, November 18, 25, 2022
Reasons for Judgment released on January 3, 2023
Counsel: Marc Lecorre....................................................................................... counsel for the Crown Alan Brass.......................................................................................................... counsel for RP
Introduction
1In this judgment:
(a) RP is the accused;
(b) DJ is the complainant;
(c) TJ is the mother of the complainant;
(d) SJ is the father of the complainant;
(e) AP is the ex-wife of the accused, the sister of TJ and the Aunt of the complainant. The complainant sometimes refers to her as her Aunt M.
(f) HP is the son of the accused and AP; and
(g) BD is the brother of TJ and another Uncle of DJ.
2DJ is a bright, articulate young woman who has autism. RP is her uncle. DJ says that when she was ten, RP sexually assaulted her by touching her vagina over the clothes. She says that she lost her memory of that sexual assault taking place until it was triggered in 2021. RP categorically denies that the sexual assault took place.
3This case involves an assessment of credibility and reliability and the application of the principles in W.(D.) 5.
Evidence of DJ
4When DJ testified she was 18 years of age. She was in school in Grade 12. She is autistic. She lives with her mom and dad. The accused is her uncle. Her mother and the accused’s wife are sisters. The accused and his wife separated when DJ was 12.
5DJ says that at the end of the summer or the beginning of fall when she was 10 the accused sexually assaulted her by touching her vagina and clitoris over her clothes while they were en route to Dairy Queen in Arnprior. She dates the incident because she says it happened just after another uncle passed away.
6At the time, she was sitting in the passenger seat and RP was in the driver’s seat. She described the truck as a black truck. She said that the truck was moving when the incident happened. It was daytime. She could not remember whether the incident happened in the morning or afternoon. She said it was sunny.
7She recalled that they were at her Nanny’s (this is how she refers to her grandmother) house. She and RP had a discussion about her emotions as a result of the death of another uncle and the funeral. He offered to take her to Dairy Queen because it was the first time she went to a funeral.
8DJ could not remember what she was wearing. She indicated that she was wearing pants or shorts but could not remember which. She could not remember what RP was wearing.
9She said that RP used his right hand because his left hand was on the steering wheel. The touching started on her leg and on her thigh and then “kinda” moved to her crotch and the vagina/clitoris area. She said that the touching started as a “gentle pat” but became more firm. She stated that he made a pulling or pushing motion with his hand. She described his hand as moving in a “cupping motion” towards the crotch area. She could not say how many times he did this, but she estimated it was between ten and 45 times. She said that there were also “harsh, poking” motions to her “lady parts”.
10She said that she felt really sore from the motion. She described stinging pain. She said that he “drilled” for a long time. His fingers did not make their way inside her vagina, but they came really close. She believed that he used three fingers. The fingers did not work in unison and she demonstrated with her fingers moving independently. She said that the actual touching might have lasted half an hour or forty minutes. She could not say for certain.
11The entire truck ride lasted between thirty minutes and an hour. She said, “I cannot remember precisely.”
12The touching started as soon as they pulled out of the driveway of her Nan’s house. She said that they drove all over Anrpior. They went past her Nan’s, and past the funeral home. She recalled that this is where it got really bad. She said that they drove near a motel. Although they went past the Dairy Queen, they did not stop.
13She recalled that RP was also driving erratically. She told him, “Hey, stop it. Keep your eyes on the road. Do you want us to crash?” In reply, he said “Do you?”. She said that she asked him what happened at funerals and he told her that they gouge out the dead person’s eyes and leave them wide open.
14When they got back to her Nan’s house, he was completely silent. He slammed the driver’s door of the truck and stormed into the house. He didn't help her get out of the truck. She could not remember what happened once she went into her Nan’s house. She could not remember anything else that happened that day.
15Although this incident happened when she was ten, DJ did not tell anyone until Mother’s Day of 2021. Then she sent a text message to her mother, her father and another Uncle, BD.
16She stated that she completely forgot about it for seven years. She stated that she recovered her memory on Mother’s Day of 2021 when they were in the drive through at the Arnprior McDonald’s. She said that her father, who was operating the car, swerved and the jerking motion reminded her of RP’s driving which resulted in the recovery of her memory. “I was inconsolable,” she stated.
17Once she disclosed to her parents, her parents contacted their family doctor. The family doctor advised them to call the Police.
18In cross-examination, DJ stated that she has severe allergies. This places significant limits on what she can eat and where she can go to eat. At certain times of the year she cannot play outside because of her allergies. She stated that it was not confusing to her because she grew up with them and they are normal to her. She said that she was tested when she was a baby. She carries an epipen.
19She recalled that she and RP had previously gone fishing. She could not recall the exact number of times.
20She said that some things that RP said or did felt “off” compared to other members of her family. For example, he would sometimes squeeze her fingers. She stated that he appeared to be joking when he did this but the squeezing was done in a serious manner.
21DJ recalled that in 2016, her Aunt and RP separated and eventually got divorced. She agreed that this was a very difficult time for their family. She disagreed that she would hear the adults say “bad things” about RP. “We did not say bad things. HP [RP’s son] was young. He was already dealing with a lot of change. We didn’t want to upset her Aunt M [AP]. We carried on like it was normal. We tried our best to keep things going smoothly.”
22Defence counsel referred DJ to page 10 of her statement to the Police where she said that her grandmother “knew about different bad behaviours about RP. She never told me what she knew. She knew why AP left RP, but that’s a separate case to what I am presenting today.” Despite this she denied that there was any family discussion about the reason RP’s “bad behaviour”. She said that her mother told her that RP and AP were splitting up. When asked why she used these words, DJ stated that she was overwhelmed that day.
23Defence counsel continued to refer DJ to page 10 of her statement where she stated, “We’ve learned he’s very good at hiding his intentions.” Defence counsel asked DJ who “we” in that statement referred to. She stated, “Probably anyone who has interacted with [RP] eventually learns that there are different sides of him. I learned through the internet that he is able to ask nicely and get things that he wants. I have learned he is not as honest and not as much of a hero that I looked up to him in the past. It thought he was really good family but as soon as we left my Nan’s he was acting weird and touching me.”
24Defence counsel suggested to her that she knew that the matter of RP’s and AP’s divorce and custody went to court. She agreed but added, “All divorce cases do.” She agreed that she heard that other members of her family were upset that the court case did not go well for her Aunt. She denied hearing specifics, such as the amount of the costs award made against AP. She stated, “I knew it went to court and it wasn't going to go perfectly but it's done and over with. If there was discussion I never heard of it.” She stated that when she or HP were in the room, they did not talk about it.
25Defence counsel put DJ’s statement to the Police to her where she referred to some knowledge of the outcome of the divorce proceedings. For example, DJ knew about who got what vehicle. Although DJ indicated that she did not have knowledge of the reasons for the marriage breakdown between AP and RP, it is clear that she had some knowledge and at times in her statement to the Police she discussed the accused in a bad light in a way that went beyond anger or bitterness in relation to touching.
26For example, at one point in the statement after discussing who got which vehicle, she stated, “…somehow I don’t understand because like their divorce case is kind of separate from this incident, but it’s just the same person caused both issues.” [1]
27DJ also referred to RP as a “dumbass” because “he built this giant, giant airplane hangar in front of her nice pretty country house.” She complained, “I can’t even wave to my… Aunt from the front window anymore and I was so upset with that.” [2] She went on that her aunt was embarrassed by the hangar. When asked by Police to describe her Aunt, on the other hand, DJ referred to her as a “sweetheart” and an “angel”.
28Later in her statement, DJ described RP as “very bigoted”. She went on to discuss things that he told her with respect to his attitude toward women: “I own women, I tell them what to do, I can discipline them. He was like that with my aunt, sort of like I can discipline women if they don’t do what I want them to do.” She added, “He’s very against blacks, gays, Muslims” and “Anybody – disabled people, like neurodivergent people with developmental delays. My mom told me one time that they had to pick up one of his relatives who worked at a L’Arche, and there was these people with Down’s Syndrome and people with special needs and they were just waving. They were being nice and [RP] freaked out by that.” [3]
29When Defence counsel put this to her and suggested that she must have heard things from her family, she stated that this was incorrect and she heard the comments about women from RP directly. She stated that these memories came back to her in her flashbacks because she “was crying and showing emotions and he got mad”.
30DJ recalled the names of two of her teachers at the time of the incident. She stated that she was close to them but she did not mention anything to them about the touching. “I dissociated it”, she said. She also stated that she had a good relationship with her counsellors at the Phoenix Centre but did not disclose to them.
31She had a good relationship with her mother, but did not disclose to her until later.
32She stated that she had extreme night terrors which started right after the incident. She did not know what they meant. She also stated that she started bed wetting. “My body was trying to tell my mind that something was wrong for seven years”, she said. With respect to her mother, she stated, “she knew about the nightmares and the bed wetting but she didn’t know why. We were trying to figure out what causes it but now we know.”
33Defence counsel asked DJ why she did not tell the Police about the night terrors when she gave her statement. She said that she did not mention it because “it was more of a medical issue”. She did not think it would help the Police.
34She agreed that she had been a victim of bullying at school. When asked if that was the cause of the night terrors, she stated that it was possible but it did not make sense. She stated that the bullying only happened recently, whereas the night terrors started almost immediately after the incident with RP. She stated that RP appeared continuously in the night terrors.
35Defence counsel asked DJ to describe her night terrors. She stated that they would be at a family gathering and he would act normal. She would try to say, “something’s wrong. He needs to leave.” RP would say, “Yeah, what’s wrong?” Her Nan and other members of her family would say, “What’s wrong?” Sometimes she would wake up screaming. She said that her Mom and Dad would come when she was screaming. She did not tell them what happened because “cleaning up the mess [from the bed wetting] was the first priority.” She disagreed that she put the night terrors out of her mind. She stated that she believes that the night terrors were her “subconcious trying to me something was wrong, something was off and something is wrong.” She agreed that RP was not doing anything wrong during the night terrors. “He was just existing and I felt something was off”, she said. She was emphatic that the night terrors did not feature other people.
36Defence counsel suggested that because of the night terrors DJ did not want to see RP again. To this she answered, emphatically, “Incorrect. Because of the night terrors I felt that something was off. I was not sure what it was. I told them I felt something was wrong. I disassociated the incident. I had no reason to avoid him.”
37She agreed that she had no problem going out with RP despite the nightmares. She agreed that she went with RP to a One Direction concert in 2015. She recalled that her father could not go to the concert. She agreed that she wanted to go to the concert and she explained that this was the case because she had not yet recovered her memory of the incident. She testified that she had a good time at the concert and that she sat next to RP in the same passenger seat that she sat in when he touched her.
38She was positive that she went to the concert with RP in the same black truck. She agreed that her memory of the touching was not revived by the One Direction concert even though she was with the same person (RP) and in the same vehicle. It was suggested to her that RP was not driving the black truck the day of the One Direction concert. It was suggested that he was driving a black Kia. She said that this was incorrect.
39With respect to the trip to the Dairy Queen, she recalled that she was already at her Nan’s house when RP arrived. She was sitting on the couch in the living room. She does not know if her grandmother or grandfather saw RP arrive. She assumed that he was going to tell her grandmother that he was taking her to Dairy Queen. She stated that RP knew that she was upset about the funeral and said that they could talk about it on the drive to Dairy Queen. She agreed that she had never been to the Dairy Queen with RP before, nor had she ever been out for “a snack” with RP before. She agreed that this was probably the first time that she was alone with RP. AP and HP were definitely not there. She said that she did not think to be concerned about having her epipen because she was sure RP had dealt with that.
40There was a lot of evidence about the truck, which was a Dodge Ram 1500. Defence counsel put pictures of a similar truck to DJ. She agreed that the truck was a big truck and she had to hoist herself up to get in it. She stated that it was a struggle to get in but she managed to do it. She stated that she might have been in the truck a few times before. Her Dad would help her get in.
41DJ could not remember the colour of the interior. She could not remember if the truck had a second row of seats. Later she allowed that when RP took her and her father fishing, she sat in the back seat because her father sat in the front.
42The truck had a console between the driver’s seat and the passenger seat. The console can flip up to allow another passenger to sit there. She could not remember whether the console was up or down. She could not remember whether the console was broken so that if it were flipped up, the contents of the storage area would spill into the backseat.
43Defence counsel asked her several times about a rule that children were to sit in the back seat. DJ was adamant that she was seated in the front seat with her seat belt on when the incident took place.
44DJ stated that when they drove by the Dairy Queen she did not ask why they drove by. She explained that she was worried about his driving and was concerned that they were going to crash. This is contrary to what she said at page 8 of her statement to the Police where she stated that she complained that they did not stop at the Dairy Queen.
45She stated that when she got back to the house she did not complain about not getting the ice cream they went for. “I was in shock. I was in quiet, cold shut down mode. I had to process other issues”, she said. She referred to having to process her uncle’s death.
46With respect to RP’s driving, she stated that he was driving while he touched her. She recalled him swerving into oncoming traffic. She did not recall whether he honked the horn or shook his fist. She stated that they did not go out onto Highway 17. She stated that there were traffic lights and he ran a red light. She stated that she did not mention this to the Police when she gave her statement because the Police did not ask. She recalled that on another occasion, he had to slam on the brakes in order to stop at a red light. She was emphatic that he continued to touch her throughout.
47Despite the fact that in-chief, she could not remember whether she was wearing shorts or pants, DJ stated in cross-examination that she was wearing shorts. Defence counsel put to DJ three occasions in her statement to the Police where she referred to her pants. She explained that she used pants “in a general way.” She said that she remembered that she was not wearing a dress or a skirt. She added “there is not really much of a difference in my view” between pants and shorts.
48Defence counsel asked her about how her memory was recovered. She recalled that they went to the McDonalds in Arnprior. Her father made a quick, sudden movement because he decided to leave the McDonalds because the drive through line was too long. She said that when this happened, it felt like she was in the truck with RP again. She said that this happened sometime between 11 am and 1 pm. She agreed that she made no reference in her statement to what happened at McDonalds triggering her memory. She explained that the Police did not ask her about it. She also stated that when she gave her statement she was more focused on the bad touching than she was on the bad driving. She remembered that both her parents were in the car with her.
49She said that she told them “the gist” of what happened. She remembered the day that it happened because it was Mother’s Day. When probed about what she meant by “the gist”, DJ stated that she did not tell her parents “the details” but she did tell them that RP made sudden movements to scare her that they were going to crash. She explained that although her memory of the touching had been revived, she was not comfortable enough to tell her parents. She said, “I was too upset to articulate it.”
50She agreed that the first time she told her parents was when she sent her text messages the same night. She said that she then had a face-to-face conversation with her mother.
51Defence counsel put to her that in her statement to the Police she thought she might have misinterpreted the touching. In her statement, she stated, “I was confused if the matter was sexual or not”. She went on that the morning after she texted her mom, after she was given time to process everything, she “clued in” that the night terrors were a trauma response. She stated that she was getting memories back from the flashbacks or the night terrors. These memories confirmed what her gut was telling her that something was wrong.
52She stated that she still had the flashbacks. She said, “Ten year old me kinda PVR’d that emotional state. Now I am more logical and mature about things. I understand the sexual context now. At ten years old, I didn’t understand it.”
53She stated that she now has separation anxiety which she also blames on RP. She said that she did not like being home alone because of the power dynamic that was in play between her and RP and the fact that no one was around to help her when he touched her.
54Defence counsel suggested to DJ that the touching never happened. She stated “I disagree. They did occur. And that's why the night terrors took place, my anxiety around men. It makes more sense -- provides a solution or answer for the trust issues.”
55Defence counsel asked DJ if she therefore blames RP for all of these problems. DJ replied, “Incorrect. They are symptoms of a trauma. They are red flags for a trauma response in a child.” She went on that she learned about this in a parenting class.
56Defence counsel pressed further by asking, “And blaming [RP] gives a solution to those problems?” DJ replied “Incorrect. He has no control over people bullying me or my other health issues.” She stated, “It does not explain all my problems, but it explains some.”
Evidence of TJ
57TJ is DJ’s mother. She lives in Arnprior with DJ and her husband SJ.
58She stated that DJ has allergies to many things. The most severe allergies are to peanuts, tree nuts, eggs, fish and a variety of other things. With respect to the items that one might find on the menu at Dairy Queen, she stated that DJ is not allergic to slushies and sometimes fruit smoothies. Occasionally she gets a plain ice cream cone. She enjoys the occasional trip to Dairy Queen.
59She recalled that her sister AP married RP in 2011 after they lived together for a long time. They separated in 2015. TJ indicated that the last time that AP and RP were in family court was in the early spring of 2021, a month or so before DJ disclosed what happened to her. TJ recalled that it was Mother’s Day of 2021 when she disclosed. She recalled that DJ disclosed by texting her. Unfortunately, her phone was off so DJ disclosed to her husband. According to TJ, they decided to speak to her in the morning.
60In cross-examination, TJ agreed that AP and RP were waiting for a ruling in their family litigation when DJ disclosed.
61When asked to describe what happened on Mother’s Day, TJ stated that they went to AP’s house in Renfrew to celebrate Mother’s Day and AP’s birthday. TJ said that her husband had to jerk the car to avoid being hit. This seemed to trigger something in DJ. She got extremely upset and she would not tell her parents why. She stated that DJ was shaking and crying. Her sobbing was uncontrollable. She expressed fear of being in a car accident.
62With respect to whether DJ would have heard discussions about AP’s divorce and family law litigation, TJ stated that AP would talk about it if their mother was around. She said that “occasionally” the kids “might be around. We tried to make sure that they weren’t in the room but they could hear what they hear.” “We would try to make sure that they were in another room or outside before talking about it.” “The kids” referred to DJ and HP.
63TJ said that the death of her brother-in-law (DJ’s uncle) was quite shocking to DJ. This was the first time that she had lost of close family member and his death was sudden. DJ was very upset. She cried a lot. She was confused as to what to expect at the funeral home. She had trouble sleeping at night.
64TJ said that RP drove a black dodge truck and she identified the truck in the photos as similar to the truck that he had. In cross-examination, TJ agreed that RP also had a black Kia. He usually drove this to and from his work in Ottawa.
65TJ stated that the funeral home was about a half a mile from her mother’s house. It would take two or three minutes to drive there. She stated that the Dairy Queen was on the other side of town. It would take about five minutes to drive there.
66TJ described DJ’s sleep prior to the funeral as pretty good. After the funeral she had night terrors. She did not want to go to bed until late. She insisted that her door remain open. She did not trust men and had issues with male teachers and doctors. She had to go on medication for anxiety and behaviour issues.
67When asked to describe the night terrors, TJ stated that DJ would sit up screaming or she would run around screaming. She said that she would look like she was awake when she was not. This lasted a couple of years. She also began bed wetting. This had not happened before.
Evidence of SJ
68SJ is 47. He lives in Arnprior with his wife TJ and his daughter DJ. He has lived there all of his life. He has been a factory worker for most of his adult life. He and TJ have been married for 25 years.
69DJ has allergies. He recalled that she was allergic to nuts, eggs, penicillin, pollen and mould. “There is a long list”, he added. With respect to items on the Dairy Queen menu that she is not allergic to, he said that she could have a slushy called an Arctic Rush. She could not have anything else that might be cross-contaminated with things that she was allergic to. DJ likes going to Dairy Queen. It is a treat and she gets excited.
70He recalled that AP and RP got married about eleven years ago. This would have placed their marriage sometime in 2011. He said that they lived together for a long time before that. They separated in 2015 or 2016. They were last in Family Court not long ago.
71He stated that in the summer of 2014, his brother passed away. He said that the death made DJ extremely upset. She had not dealt with someone passing away before. He could not recall anything about what vehicle RP drove to the funeral.
72When he was shown photos of the black truck, he recalled that RP owned a similar truck which had a cracked windshield and it had some dents.
73In cross-examination, he recalled that RP also owned a black Kia and a mustang. When he worked in Ottawa he usually took the black Kia in order to save gas. Defence counsel asked SJ if he was aware of the rule that kids were to always sit in the backseat of the truck. He stated that he did not know and that he never heard that. He agreed that when he was with RP, the children would sit in the back seat. He could not remember whether the console between the front seats was always down, nor could he recall whether it was broken such that when it was flipped up, the contents of it would dump in to the back seat.
74He recalled the circumstances surrounding the attendance at the One Direction Concert in Ottawa. He drove DJ to Ottawa. They met RP at a Wal-mart and RP took her to the concert. He believed that RP was driving the truck. He could not recall whether DJ got in the front seat or the back seat to go to the concert.
75In cross-examination, SJ recalled that RP got One Direction tickets through his work in Ottawa. He agreed that he could not remember whether RP drove the black truck or the Kia to the concert. He stated that RP took AJ to the concert because he had to work a night shift. The agreement was that SJ would drive her to Ottawa to meet RP and RP would take her to the concert and drive her home.
76DJ’s sleeping routine prior to the summer of 2014 was good. She went to bed early and got up early. Her sleep pattern was good for sleeping through the night. After the summer of 2014, she had night terrors. She would scream. She would be up through the night. He described her behaviour as a “melt down”. He said that this went on continuously. Although these terrors still happen now, they do not happen as often.
77With respect to discussions about AP’s and RP’s divorce, SJ stated that there were discussions and he always “tried to let it be known that nothing bad or sad was said in front of DJ or HP”. He said that DJ or HP would be in another room when these discussions took place. In cross-examination, he stated that he was unaware of some of the details of the family law litigation, including the amount of the costs award. He agreed that DJ disclosed what took place while they were waiting for the court to render a decision.
78SJ recalled that on Mother’s Day 2021, they went through the drive through at McDonald’s in Arnprior for lunch. He said that it was busy. He recalled that he “got frustrated” in the drive through and accelerated a bit hard to cut into a parking spot. He said that the car jerked rapidly. That upset DJ. She started yelling and screaming at him.
79After McDonald’s they went to AP’s house. On the drive DJ was still upset with him and kept telling him over and over not to do that. He said that he observed her hands shaking.
80In cross-examination, SJ indicated that he had known RP since the late 90s or early 2000s. At one time they were close.
81He agreed that he did not discuss the incident at McDonald’s when he gave his statement to the Police. He said that he was emotional when he gave his statement. When asked whether he left this out because he was not sure if it took place, he stated that his daughter was upset, she had experienced physical trauma because of these allegations and he did not know what he was supposed to do. SJ was very emotional when he gave this evidence.
Evidence of BD
82The Crown called BD, who was another uncle of DJ and who was living with her grandparents at the time of the funeral. His evidence was largely narrative evidence. It does not assist me.
Evidence of RP
83RP testified that he is 42 years of age. He does not have a criminal record. He is living in Ottawa Ontario with his new partner. He and his new partner have a daughter. He indicated that he was in a relationship with AP for 19 years. For the last five or six years of those, they were married. AP is the sister to TJ. She is DJ’s aunt. He and AP have one son, HP, who is 11.
84He told me that DJ’s allegations are 100% false. He stated that he never took DJ anywhere alone until the One Direction concert in 2015. With respect to the concert, he recalled that their 2015 tour was their farewell tour. DJ begged her parents for tickets but they could not afford them. RP had worked at a company that ran a limousine service for the Corel Centre. He was able to get two tickets, one for DJ and one for SJ. In cross-examination, he said that the tickets were free. He picked them up from his work place in Ottawa the same day as the concert. His wife stayed at home with their son HP.
85He drove his Kia car to Ottawa. He was sure that he drove the car and left the truck with his wife in Renfrew. He explained that the car was a standard transmission and his wife could not drive it. He said that if he had taken the truck, he would have stranded his wife. His son suffered from “violent puking episodes” at the time so he would not leave her at home without a vehicle she could operate.
86They agreed that they would meet at the Wal-mart at the Kanata Centrum Mall. DJ was originally told that she was going to a clown concert. He said that she was “flabbergasted” when he gave her the tickets. His recollection is that SJ could not go to the concert with her because “boy bands were not his thing”. In cross-examination, he stated that his attendance at the concert was not planned in advance. He always anticipated that DJ would go to the concert with her Dad. He said SJ’s unavailability was something that was “sprung on” him at the last minute.
87He stated that he drove down to Ottawa earlier that day to pick up the tickets. He got their early and spent some time with his co-workers before going to meet DJ and SJ at the Wal-mart.
88Given that her father could not go to the concert, DJ got into the Kia and RP took her to the concert. Their seats were in a box in the Corel Centre. Some of his co-workers were there. After the concert, he dropped DJ off at her home in Arnprior before continuing on to Renfrew.
89He stated that this is the first time that he and DJ had ever been anywhere other than at home. He knew that she had a long list of allergies and her allergies were not simple. He said it was scary to try to find her a suitable snack while at the concert. They ultimately settled on a fruit cup and a bottle of water.
90In cross-examination, the Crown suggested that he was overblowing the extent of DJ’s allergies and they were actually quite manageable. “Everything she eats has to go through her mother or her grandmother. It’s not as simple as you suggest”, he snapped. He also recalled that he usually bought cakes for family gatherings and DJ was never able to really eat the cakes. He disagreed that there would be drinks at the Dairy Queen that he knew that DJ could drink without having an allergy attack.
91He was sure he took the Kia to Ottawa. He stated that by 2015 he was no longer working. He was getting by on CPP disability. The Dodge truck had a large V-8 motor. He drove the Kia as much as he could because it was a gas miser.
92He essentially repeated this during cross-examination when the Crown pressed him about taking the truck to the funeral.
93He said that his practice was to always make sure that children were in the back seat. He was aware of a warning sticker on the Kia that indicated that an air bag could kill a child if they sat in the front. The only time he has ever had children in the front seat was in 2015 when he bought a Smart Car, which only has seating for two passengers.
94In cross-examination, there was a long series of questions and answers between the Crown and RP about the vehicles that RP owned and whether they had a sticker concerning an air bag warning. None of that was ultimately helpful to me, other than to demonstrate that RP had a good memory of what vehicles he owned and when he owned them. He continued to insist that having children ride in the rear seat was a hard and fast rule for him.
95In cross-examination, there was also a discussion of the three concerts that he went to at the Corel Centre while he worked for his employer and what vehicles he went to them in. Again this did not really help me.
96He agreed that the photos were of a similar truck to the Dodge Ram. He told me that the truck actually belonged to AP. He identified the centre console and stated that it was always down because it was broken. If it was raised all of the contents in it would spill into the back seat.
97RP stated that he separated from AP on September 21, 2016. After the separation he had no contact with AP’s family including DJ and her family. He said that the family law litigation went to trial and he was awarded $54,000 in costs. He indicated that AP appealed and he was awarded costs on the appeal.
98He stated that AP’s mother is suing him. He is also anticipating a return to Family Court because AP refuses to follow the court’s order. Access to HP was a significant issue. He stated that from the date of separation to the date of the judgment of the trial in May 2021, he only saw his son on Saturday and Sunday. He said that as a result of the outcome of the family court trial, he and AP now are to share equal parenting time to HP. He stated that the “catch” in the order was that he had to move back to Renfrew.
99He indicated that there has never been a time when he and DJ left DJ’s grandmother’s home in his vehicle. The closest that ever happened was when there was a fishing trip. He said that happened once with DJ and SJ.
100He stated that he was an endearing uncle, not a touchy one. He told me that he grew up in a large family. He said that in his family, handshakes are firm.
101In cross-examination, he agreed that he and his family attended at the grandmother’s home several times a week during the period in question. He said that they went there as often as possible because money was an issue and they wanted to get free food.
102He disagreed with the Crown’s suggestion that it was particularly important for AP to be near her family at the time of the funeral. He stated that the deceased was a member of SJ’s family and SJ’s family and AP’s family really did not see eye-to-eye about anything. He thought it was right to go to the funeral because the deceased was SJ’s brother. He said that everyone went to the funeral including himself.
Analysis
103The Crown must prove the elements of the offences beyond a reasonable doubt. The Crown bears the onus of establishing them. The onus never shifts to the accused. A reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone. It is a doubt that is based on reason and common sense. It is a doubt that logically arises from the evidence or the absence of evidence.
104The accused is not required to demonstrate that the complainant had a motive to fabricate evidence. Nor does the absence of a motive to fabricate conclusively establish that the complainant is telling the truth. “The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility.” 4
105In R. v. W.(D.) 5, the Supreme Court of Canada instructed triers of fact to assess evidence in this way:
a) First, if you believe the evidence of the accused, obviously you must acquit.
b) Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
c) 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.
106In assessing the competing evidence in this case, I cannot compare each account and decide which account I believe 6. I can believe or disbelieve a witness, but still be left with a reasonable doubt after considering all the evidence. Further, when considering the testimony of a witness, a court can accept all, some, or none of a witness’ testimony. Frailties and inconsistencies in a complainant’s evidence do not necessarily mean that her evidence should be rejected 7.
107Assessing credibility and reliability is key in this case. Credibility relates to whether a witness is speaking the truth as she believes it to be. Reliability relates to the actual accuracy of the testimony. The witness’ ability to accurately observe, recall and recount the events must be assessed. A credible witness may give unreliable evidence. 8 The credibility and reliability of a witness must be “tested in light of all the other evidence presented.” 9
108In assessing each witness’s account of what happened, I have considered the account’s internal consistency, it’s consistency with previous accounts, the significance of any inconsistencies, whether the account is inherently logical and whether the witness has an interest in the outcome of the proceedings.
109To assess reliability, I consider the circumstances of the observer, the quality of their recollection given the passage of time, whether their evidence has been influenced by other sources, their mental capability and limitations and their level of sophistication.
110Some inconsistencies are important; other less so. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth which is a cause for concern. 10
111I cannot state with certainty that I believe RP’s evidence. This disposes of the first branch of the W.(D.) analysis.
112On the second branch of the W.(D.) analysis however, RP’s evidence is sufficient to raise a doubt in my mind as to his guilt and consequently he is entitled to an acquittal.
113With respect to the third branch of the W.(D.) analysis, I generally thought DJ was an honest witness who was trying her best to tell me what happened to her. She was always polite with the court and with her questioner. She did not lose patience even though parts of her evidence, particularly the cross-examination, was at times unnecessarily repetitive. She was always concentrating and trying to give a complete and truthful answer. It was particularly important to her to be correct, be precise and explain her answer.
114I must take great care in assessing the evidence of DJ. A court may not automatically discount a child’s evidence; otherwise it will have fallen into error. 11 As Justice McLachlin (as she then was) further noted in W. (R.) 12, “it may be wrong to apply adult tests of credibility to the evidence of children.” She stated:
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. 13 [Emphasis mine]
115Thus, my reasons should not be taken as a finding of credibility against her. I have a doubt based on the evidence of RP.
116Although I find that her evidence is credible, I do have significant difficulty with relying on her evidence.
117As I have set out above, credibility and reliability are two different things. In R. v. HPS 14 the Court of Appeal discusses just how important reliability is:
Even if the complainant appeared to be “sincere,” “truthful,” and “honest” – as the trial judge noted several times throughout his reasons – and even if the complainant believed what she was saying, it does not follow necessarily that what she was saying was reliable. Credibility alone, in this sense, is not enough. This is particularly important where the accused is facing charges based entirely on allegations of historical physical and sexual abuse, and where also -- as here – there were serious reliability issues.
Memory is fallible. Courts have long recognized that even an apparently convincing, confident and credible witness may not be accurate or reliable and that it is risky to place too much emphasis on demeanour alone where there are contradictions and inconsistencies in the evidence: see R. v. McGrath 18, at paras. 10-14; R. v. Stewart 10 (1994), 18 O.R. (3d) 509, at pp. 515-18; R. v. Norman 19 (1993), 16 O.R. (3d) 295, at pp. 311-15.
In such cases – cases evolving out of allegations of distant events, including allegations involving historical acts of physical and sexual abuse – particular caution and scrutiny are called for in approaching the reliability of evidence. Rosenberg J.A. highlighted the need to be cautious about relying upon adult memories of childhood impressions in R. v. M.(B.) 20 (1998), 42 O.R. (3d) 1 (C.A.), at p. 29. Memories become increasingly frail over time. Evidence that might have existed had the matter been dealt with earlier may have disappeared. Or it may become contaminated. Life experiences can colour and distort the memory of what occurred.
….The idea that trial judges should consider the “need to self-instruct on the frailties of evidence concerning events from the distant past” is a sensible one for all of the reasons summarized in McGrath 18. Each case will depend upon its own circumstances, and I do not mean to suggest that some type of formal instruction need necessarily be given. Where, however – as here, and in this type of case generally – there are objective reasons to scrutinize carefully the reliability of a witness whose testimony is central to the proof of guilt, the trial judge’s reasons should demonstrate that he or she is alert to the frailties of, and the risks associated with, such evidence, and to the need to address it with that careful scrutiny.
In underscoring these considerations, I am not seeking merely to duplicate the principles that apply to the assessment of the evidence of an adult witness testifying about events that occurred when the witness was a child. Those principles – as articulated by the Supreme Court of Canada in R. v. W. (R.) 11, [1992] 2 S.C.R. 122, at pp. 133-34 – were properly addressed by the trial judge. But they do not speak to the reliability concerns that arise due to a significant passage of time between experience and testimony in cases involving historic allegations. W. (R.) 11 is focussed on the need to consider the evidence of the adult testifying as to childhood events “in the context of the age of the witness at the time of the events to which she is testifying”: see para. 26. The McGrath 18 cautions deal with a broader worry: the inherent frailties attaching to evidence that attempts to reconstruct distant events through the prism of memory that may be coloured or distorted by the erosive impact of time and life experience. 14
118This is not a case where the DJ always had a memory of what she says happened in RP’s truck the day of her uncle’s funeral in 2014 and delayed in disclosing it. Rather, DJ’s memory of what happened was almost immediately lost and not recovered until her father’s sudden acceleration in a McDonald’s parking lot seven years later triggered it. DJ herself put it best when she described herself as a ten-year-old PVR. Her evidence was thus the replaying of the recording she says she took back then.
119A human memory, however, is not the same as a recording made some years ago that has been “digitally remastered” in a manner that is faithful to the original for re-release. This is where the reliability problem lies.
120Anyone with a basic or rudimentary understanding of how children react to trauma knows that things such as night terrors and bed wetting can be indicative of childhood trauma. Thus, to DJ and to her parents, the sudden revelations in the McDonald’s parking lot in 2021 makes perfect sense when the bed wetting, the night terrors, the behavioural problems, the problems with trusting men all started at about the same time as the allegations.
121To be sure, these symptoms probably identify a past trauma. However, they do not identify the culprit to the high standard of proof beyond a reasonable doubt. At best, these symptoms, in tandem with the revelations in the parking lot generate a hypothesis, perhaps even a strong one, that RP is the culprit.
122Unfortunately, however, in this case, there is no other evidence against which to test that hypothesis. For example, the passage of time has ensured that the only two people who would know that DJ and RP went out in RP’s truck on the day of DJ’s uncle’s funeral are DJ and RP. No one else testified that they were together that day. The evidence in this case is that DJ says they were and that is when the touching occurred. RP says it never happened.
123Then one must consider the impact of AP’s and RP’s separation and divorce which was (and still is) very acrimonious. Despite the fact that the DJ’s parents made their best efforts to ensure that these adult subjects were not discussed in the presence of DJ or HP, it is clear that they were. DJ views herself as more of an adult when she testifies to the effect that “we” made sure that these things were not discussed around HP.
124She describes her aunt as an “angel” and RP as a “dumbass”. She is highly critical of RP in a number of ways, attributing to him general negativity towards women, towards people who are developmentally delayed, towards people of colour and toward Muslims. She essentially says that now we know that he is very good at hiding his intentions. These opinions or recollections simply cannot be the memories of a ten-year-old girl who was PVR’ing what she witnessed and playing it back to me when she was 18. This is exactly the kind of colouring or distortion or contamination of memory that HPS 14 warns us to be wary of – colouring and distortion that is not an actual memory but the result from the “erosive impact of time and life experience”.
125All of this is exactly why this is not a case, like JJRD 15, where “considered and reasoned acceptance beyond a reasonable doubt” of the complainant’s evidence allows me to reject the accused’s evidence.
126To be clear, I take nothing from DJ’s failure to disclose any of these incidents until September of 2021. Late or incremental disclosure in sexual assault cases will not, standing alone, constitute a reason to diminish a complainant’s credibility. In R. v. D.(D.) 16, Justice Major stated:
[T]here is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. 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.
I also take nothing from the fact that DJ and RP went to the One Direction concert together in 2015. The suggestion that a young child continues to enjoy a relationship with the accused after a sexual assault until they decide to disclose later in life must mean that the sexual assault did not happen is an invitation to engage in stereotypical and mythological reasoning 17.
Conclusion
127To summarize, I am not sure I believe the accused. This disposes of the first branch in the W.(D.) 5 analysis. His evidence does however cause me to have a doubt under the second branch of the W.(D.) 5 analysis. I believe the complainant, but I do not believe that her evidence is sufficiently reliable and thus, I also have a doubt on the third branch of the W.(D.) 5 analysis.
Released: January 3, 2023 Signed: Justice J.R. Richardson
Footnotes
- R. v. W.(D.), [1991] 1 S.C.R. 742
- R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.), at para. 121
- R. v. Esquivel-Benitez, 2020 ONCA 160
- R. v. J.J.R.D. at paras. 46-48, leave to appeal to SCC refused, [2007] S.C.C.A. No. 69.
- R. v. Morrissey, [1995] O.J. No. 639 (Ont. C.A.) at paragraph 33. R. v. C. (H.), 2009 ONCA 349 at paragraph 26.
- R. v. J.J.R.D., supra, at paragraph 46
- R. v. Stewart (1994), 18 O.R. (3d) 509 at paragraph 27.
- R. v. W.(R.), [1992] 2 S.C.R. 122
- R. v. W.(R.), supra, at page 143
- R. v. W.(R.), supra, at page 144. See also R. v. M.(A.), 2014 ONCA 769 at paragraph 10.
- R. v. HPS, 2012 ONCA 117 at paragraphs 34 to 42
- R. v. McGrath, [2000] O.J. No. 5735 (S.C.)
- R. v. Norman (1993), 16 O.R. (3d) 295
- R. v. M.(B.) (1998), 42 O.R. (3d) 1 (C.A.)
- R. v. J.J.R.D., supra, at paragraph 53.
- R. v. D.(D.), [2000] 2 S.C.R. 275, 2000 SCC 43 at paragraph 65
- See most recently R. v. DR, 2022 NLCA 2, aff’d 2022 SCC 50 and the cases cited therein.