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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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
BETWEEN:
HIS MAJESTY THE KING
— AND —
JS
Before Justice J.R. Richardson
Heard on October 16, 17, 18, 2023
Oral Decision Rendered March 19, 2024
Reasons for Judgment released on April 15, 2024
Goher Irfan counsel for the Crown
Daniel Howard counsel for the accused
Introduction
1The accused was charged with:
a) Sexual Interference on JM, which is alleged to have occurred between the 1st day of August 2014 and the 1st day of March, 2015 contrary to section 151 of the Criminal Code;
b) Sexual assault on JM, which alleged to have occurred between the 1st day of August 2014 and the 30th day of September 2017, contrary to section 271 of the Criminal Code;
c) Inviting JM to touch him for a sexual purpose, which is alleged to have occurred between 1st day of August 2014 and the 30th day of September, 2017, contrary to section 152 of the Criminal Code;
d) Assaulting JM, which is alleged to have occurred between the 1st day of August 2014 and the 30th day of September, 2017 contrary to section 266 of the Criminal Code; and
e) Surreptitiously observing JM in circumstances that give rise to a reasonable expectation of privacy, contrary to section 162(1) of the Criminal Code.
2The Crown proceeded by Indictment.
3At the outset of the trial, I was advised that identity was admitted.
4On October 18, 2023, the Crown conceded that it would be unable to prove Count 1 (Sexual Interference) and Count 5 (Voyeurism) and those charges were dismissed.
5Like so many cases of this nature, this case turns on the assessment of credibility and reliability and the W.(D.) formulation.
6This case also deals with the question of whether sexually degrading, humiliating and demeaning conduct on the part of the accused can constitute sexual assault, in circumstances where that conduct does not include touching or threat of touching. I have discussed this at paragraphs 414 to 445.
7For the reasons that follow, I find JS not guilty with respect to the count alleging Invitation to Sexual Touching. I find JS guilty of the counts alleging sexual assault and assault.
Evidence of JM
Introduction
8JM was 22 years of age when she testified. She lives and works in the Ottawa Valley. She advised that she grew up in Ottawa and moved to Killaloe, Hagarty and Richards Township when she was about 13 years old. She stated that she moved here before Grade 9. When she moved to the area, she resided there with her father, SS, her mother, AR and her sister, JZS.
9JS is her step-brother. He is SS’s son. To JM’s knowledge, JS and SS were estranged for some time. One day, before the family moved to the Valley, SS told JM that he had been in contact with JS and JS would be moving in with them in Ottawa. JM could not remember when JS moved in with them.
10She recalled that when they lived in Ottawa, they lived in an apartment on A Street. JS was incarcerated for a while. When he got out of jail, he moved in with the family at their new residence in the Valley. JM stated that she was in her teens and she thought that JS was about twenty. It was 2015.
11JM explained the layout of the house in the Valley. There was a main floor and there was a basement. When JS came to live with them, he lived in the basement. JM shared a bedroom with her sister JZS, which was one of two bedrooms on the main floor. AR and SS were in the other bedroom which was just across the hall.
12JM stated that when JS first moved in with the family, she “barely knew him”. She stated that she was “weirded out” by the prospect of him coming to live with the family and the opportunity for her to have a brother. He lived with the family for at least three years.
13At some point, JZS moved out. A year or two later, JS moved out and JM moved out shortly after that. She believed that she moved out sometime in 2017.
14She stated that her relationship with JS was “strange” at first. She did not know how to react, so she was a bit leery of him. She tried to have “chit-chat conversations” to get to know him.
15JM stated that she was attending high school. Her school hours were between 8 and 9 in the morning until three in the afternoon. JS did not work, and as far as JM knew, he stayed at home.
16The relationship did not improve with time. She disliked how he acted, the way he reacted to certain things, the way he was with other people and the way that he treated her mother and father. As a result of this, she became more distant from him.
17JS was aware of this and tried to start conversations with JM to improve their relationship. JM stated, “It wasn’t going to work”. She stated that he asked her questions to get to know her. Some questions were “personal” and JM refused to answer because they made her feel uncomfortable. This made JS angry.
18JM recalled that JS would frequently ask her to go downstairs to his bedroom to watch movies or play videogames after school or on weekends.
19She also wanted to try to get to know him a bit so that she could answer SS if he asked her if she had gotten to know her brother.
Cross-Examination Re JM’s Preliminary Evidence
20In cross-examination, JM stated that she was maybe 11 or 12 when JS came to live with her family in Ottawa. She recalled that there were times when he was not always there because he would go to stay with friends from time to time.
21She stated that JS did not have his own bedroom in Ottawa. He “more or less” slept on a futon in the living room. The apartment was a two-bedroom. Her parents had one bedroom and she and her sister had the other.
22When asked about the nature of her relationship with JS while living in Ottawa, JM stated, “Next to nothing”. She agreed that there were no incidents of touching while they were living in Ottawa.
23She stated that she was 13, going on 14 when the family moved to the Valley.
24She clarified that her birthday is March 24, 2001.
25She could not clearly recall how long the family was living in the Valley before JS moved in. She reckoned it was “a few months”.
26She agreed that JS lived with the family in the Valley for about three years. She stated that JS moved out before she did. She stated that she moved out at the end of 2018 or 2019. She has not seen him since he moved out.
27She stated that she messaged him once after she moved out to let him know that she had run away from home. She stated that JS asked her why and she did not answer him. She simply wanted him to know that she was not at SS’s house anymore.
Incident 1 -- The Choking Incident – In-Chief
28JM recounted that on one occasion, JS got angry during a conversation about a video game. During the conversation, she called JS “a fag”. She indicated that he quickly became very angry. He put his hands around her neck and told her to tell him that she was sorry. “I could barely breathe”, she stated.
29When asked to describe this in more detail, JM stated that she remembered that the video game was a “boyish” type of “story-telling game”. There was something in the game that they thought was “gay”. She recalled that JS yelled, “It’s gay.” JM recalled that she said, “No, you’re a fag. You’re gay.”
30JM was caught completely off guard by the assaultive behaviour. She was tempted to tell AR about it but decided not to. She decided that she should not have provoked him. She told her mother about it later, “after everything else” happened.
31JM also stated that JS told her that if she told anyone about it, he would make sure that no one believed her.
32JM could not recall what time of day this incident took place. She estimated that she was downstairs for about an hour before it happened. She believed that it happened in the early fall. She recalled that the woodstove was on and warm.
33She stated that this happened the year that JM moved in. She believed 2015 or “maybe 2016”. It happened a few months after her sister moved out.
Cross-Examination Re the Choking Incident
34In cross-examination, JM could not recall what game JS was playing before this incident took place. She recalled that the game was repetitive, and JS got tired of playing it. He said that it was stupid and “gay”. JM recalled that she “jumped on” that remark and told JS, “Well, you’re gay”. She explained that it was at this point that he took his hands and tried to pin her against the bed and choke her.
35JM could not recall if he was playing the game on his phone or on a tablet. She believed that she was playing a game at the same time. She could not be certain if she was playing online or using a different device. She was “not exactly sure” whether this incident took place after school. She also was not exactly sure how long they were playing the game for.
36Defence counsel asked her about the weather outside when this incident took place. She agreed with the suggestion that it might have been colder out when this incident took place.
37She could not remember whether AR was at home or at school when the incident took place. She thought it was possible AR was at home. Her dad however was not home, and she surmised that he was at work.
38JM stated that before he put his hands on her neck, JS stated something to the effect of “don’t say that” or “I’m not gay”.
39She agreed that JS was quite a bit larger and a lot stronger than she was.
40She stated that both of his hands were around her neck. She could not remember how long his hands were there. She explained, “I know for sure it was not long enough to cause damage or anything but I know that it was long enough that I felt pressure. I felt that if I didn’t comply it would have went to something a lot worse. I felt like I was breathing through a really thin straw and I was going to lose consciousness.”
41When defence counsel asked her how this incident ended, JM explained that he was on top of her repeatedly telling her to “say you’re sorry”. She recalled “mouthing” those words and he let her go.
42She agreed that when he was telling her this, he was agitated. She stated that he was almost to the point of being out of control. She agreed that it was possible that anyone else at home would be able to hear what was going on.
43JM stated that she did not have any bruising or marks as a result of the incident. She recalled that the area where he touched her was warm to the touch.
44When asked whether they had any other interactions that day, JM stated that she might have gone back downstairs to ask him why he “decided to do that.” She stated that JS told her that she should not have said what she said and it was her fault. She told him that what happened was not ok or understandable.
Incident 2 -- The Touching on the Bed Incident
45JM related that on one occasion they were sitting on his bed and watching a movie. JM could not remember what movie they were watching. She explained that they were sitting on the bed as if it were a couch. They tired of this, so they decided to lay on the bed. JM explained that his feet were towards her head and her feet was toward his head. She started “getting antsy” and “wasn’t comfortable.” As a consequence of this, she sat up.
46She recalled that JS asked her if she wanted to sit in a different way. JM agreed and tried sitting up against the wall. This did not work either, so she lay down next to him.
47At this point, JS reached over and put his hand on her hip. JM stated that she found this “odd and weird”. She tried to move her leg. JS then started to move his hand closer to her stomach. This did not make her feel comfortable and she moved her shirt and arm to get him to move his hand.
48At this point, JS moved his hand down toward her “lower half”. She wasn’t comfortable and she thought was wrong. She sat up. JS asked her what was wrong. She told him that her back was hurting. By this time, the movie had either ended or was ending and she told him that she wanted to go upstairs because she thought AR was home. She stated that he got mad and told her to “run back up to my mom like a scaredy cat.”
Cross-Examination Re The Touching on the Bed Incident
49Defence counsel asked JM about her evidence in-chief that she was wearing jogging pants when this incident happened. Defence counsel then put to JM the following excerpt from Part 2, Page 11 of her Police Statement at lines 396 to 400:
Police: Okay. So under the blanket you were not wearing any bottoms?
JM: I think I was just wearing underwear but there were [sic] like I guess you could call them my granny panties. Like they were loose type of fitting.
50Defence counsel asked JM which version was correct. JM stated that she remembered that she was wearing jogging pants.
51Defence counsel put to JM the following excerpt from Page 7, Line 258 to 268:
JM: And I sat up, like not immediately but I sat up pretty quickly. And he was like are you okay? And I as like yeah I just want to go upstairs to the bathroom really quickly. Like a little excuse. And I got, I went upstairs. I went to the bathroom as usual, just to make it sound, cause like from where his bedroom was, was the basement, and upstairs we [heard] like basically everything so I like went to the bathroom.
I sat down for a couple of minutes just to make him think like oh she actually had to. And then after a while I went out and my mom woke up.
52JM agreed that when she testified in-chief, she did not mention anything about the ploy or ruse to go to the bathroom to get away from JS. JM stated that she remembered leaving the bedroom but she could not remember anything after that.
Incident 3 -- The Hide and Seek Incident
53JM stated that a few days later she went downstairs to see how JS was doing. He asked her if she wanted to watch a movie and she declined. She asked him if he wanted to play a game and he declined. They then proceeded to watch YouTube videos on his tablet They sat on the bed as they did this. Eventually they got bored.
54JM suggested that they play a game she used to play with her sister called “Find a Friend”. This game is like “hide and seek” only it is played in the dark. JM recalled that after the lights were turned out, she started to feel her way around the room to attempt to find JS. She felt his body on the bed and grabbed what she thought was his thigh or his hip. At this point, she turned on the light and said, “I am sorry; I didn’t mean to touch your hip.” JS told her that she did not touch his hip. She asked if she touched his leg. He said, “No”. JM then said, “Oh my God, I touched something else.” She told him that she didn’t mean to. JS said it was ok. Despite this, she “freaked out”, got “weirded out” and went upstairs.
55She then received some text messages from him telling her that “it was fine” and not to tell anyone. She recalled that one text essentially said, “What you did was between you and me. You said you were sorry. Why don’t you come back down.”
56She recalled that in the four or five days following this incident she ignored him. She stated that she received text messages in which he told her not to tell anyone, and that if she did tell someone, no one would believe her because “we are family.”
Incident 4 -- The Stripping Incident
57Days later, she did go back down to see how J S was doing. He was angry that she left so quickly and told her that he would have liked to continue the Find a Friend game because it was her turn.
58JS told her that he wanted her to express how sorry she was for touching him. She asked if he would accept a hug. “He didn’t go for that”, she said. She then asked him what he thought was a good way to show that she was sorry. “He came up with the idea of stripping” she said. He told her, “Maybe if you showed me some skin I would forgive you.” JM stated, “I said no, that’s not what a sibling does to another sibling.” She then told him that she was going upstairs to wait for AR to get home.
59At this point, JS told her, “I know you are going to tell your mom.” He told her that she better show him how sorry she was or he would tell their father that she started everything. JM stated that she took her pants off and bent over in front of him. She said that she removed her underwear “for a second”. She stated that she then put her pants on really fast and went upstairs to call her boyfriend. She stated that she was crying so much she couldn’t tell her boyfriend what happened. She also stated that she was afraid that her boyfriend would think that she just wanted attention. She recalled that JS told her that if she “dare to tell mom or dad about this there would be worse that happens.”
60JM could not specifically remember what words that JS used before she took off her pants. She stated that she initially thought it was a joke or a way to get her attention. She stated that once she told him that she did not want to do this, he wouldn’t listen or take “no” for an answer.
61JM remembered that when she first took her pants off she asked him if that was good enough. He told her, “No, is that bare skin to you?” She said, “It is probably not good enough because you are only seeing the legs.” At this point, JS instructed her to “Take the rest off then.” She turned around and faced away from him, quickly pushed her underwear to her knees and back up. She then grabbed her pants and went upstairs. She stated, “He wanted more. He was expecting me to do my full body. I didn’t want to do that.” She recalled that he yelled at her through the vent grate, “You’re not finished. Come do what you are supposed to.” JM could not remember if she yelled back or not. She stated that she went on her phone and stayed in her room until a parent got home.
62JM recalled that when this incident happened, she was wearing a normal t-shirt and fuzzy jogging pants. “I like to wear those a lot around that time of year”, she added. She could not remember her underwear.
63The Crown asked, “When you undressed, how were you feeling?” JM stated, “Kind of forced.” She also recalled feeling disgusted with herself.
64The Crown asked JM why she did not tell her parents. She stated that JS told her that her father would not believe her and he would make sure that her parents would not know what actually happened.
Cross-Examination Re the Stripping Incident
65Defence counsel put to JM the following extract from Page 11 of her first Police Statement:
JM: ….he was the one who was completely texting me and I was like trying to tell him like no I’m in class I can’t talk. And it got to the point where he turned it around on me and said that I was being a bad kid from not responding to him and everything.
And I was like ok. I should have responded to you saying that like I can’t talk and stuff like that, which I did. And he, I don’t know how he was able to do this but he more or less got in my head and made me feel like it was my fault. And so I more or less was like ok, I’m sorry. I should done [sic] this better, I should have done that better. Like a girlfriend would do. Or like a significant other would do. So I was like this is weird.
And he’s like I know a way you can like I guess get even or to show forgiveness or something. And I was like okay, what?...
66Defence counsel asked whether JM recalled whether the incident took place because she wanted JS to forgive her for touching him during the hide and seek in the dark incident (which is what she testified to in-chief) or whether it was related to her failure to respond to his text messages (which is what she said in her police statement). JM stated that she thought that what she told the police officer was the correct version.
Incident 5 -- The Kissing Incident
67JM recalled that the next day JS asked her to come back downstairs to “just talk” and “see if we can make it right again.”. She agreed.
68During their conversation, JS asked if she had a boyfriend and what her boyfriend’s name was. He asked her if she thought she was too young for a boyfriend. He asked her if her mother and father knew about the boyfriend. He also asked her how school was. She stated that she tried to keep the conversation to a bare minimum because “he started getting weird.” She explained that he would “take things that I would tell him and have an imagination with it.”
69JS asked her to come give her a hug. She agreed. JS then suggested that there was another way that JM could say that she was sorry. JM asked him what that was and he replied, “Give me a kiss.” She stated that she went to kiss him on the cheek.
70When she did this, he suddenly turned his face and gave her a kiss on the lips.
71She stated that her body language expressed how she felt about it. She could not remember whether she pushed him away or stepped away and immediately wiped “it” off. She recalled that he told her that her behaviour was quite rude. She ran upstairs, went to the restroom and wiped it off with water. He got angry. He asked her, “Why don’t you want my love? I am your brother. You shouldn’t be acting like this.”
72At this point, JM told AR. She recalled that AR was upstairs sleeping on the couch. She woke AR up to tell her. She recalled that AR was startled when she woke up. She whispered to her and told her that JS kissed her. She did not think that AR, at first, understood what she said so she had to repeat it. As she was doing this, she was receiving messages from JS to come back downstairs, bring food and talk. Once AR understood what was happening, AR stated, “That’s not right”.
73JS then yelled from the basement, “Don’t talk about me. I can hear you”.
74JM told AR that there was more. AR told her to wait until her father came home. AR got in touch with her father and told him that he needed to come home as soon as possible.
75JM stated that when she told AR about it, AR got scared and asked her if she was sure. JM then repeated what happened in detail. At this point, AR got scared and upset. JM was “pretty sure” that she started crying.
76She recalled that her father came home earlier than expected. He did not look happy when he got home. She stated, that usually, he comes in, looks tired and just wants to go to bed.
77He asked JM what happened. AR told him. He asked JM if there was anything else. She told him.
78The Crown asked JM what year all this happened. JM stated that it was sometime around 2017. She could not remember specifically. After thinking about it she recalled that she was in Grade 11.
79JM recalled that her father intended to talk to JS to find out if he would tell the truth. He asked her if she was telling the truth and if she was sure. She recalled telling her father that she would not lie to him. She stated that what she was telling her father caught him “off guard” and he wasn’t expecting it. He asked her a couple of times if she was sure.
80JM stated that JS was outside at the campfire. She recalled that it was mid-day. JM assumed from JS’s body language that he didn’t want anything to do with the conversation and was denying her allegations. She recalled that her father came in after the conversation and stated that he was not sure if it was true. JM told him that it was the truth and went back to doing some schoolwork. At this point, her father went back outside.
81Her father then came in and called everyone to the kitchen table. He asked JS if he did it and JS denied it. Her father then looked at her and said, “If you’re sure, I want to know”. At this point, JS got up, went outside and left. She recalled that he returned later that evening.
82JM recalled that her father told her that he would deal with it. He wanted to figure out what he was going to do next. He then left to go somewhere else.
83About a month later, JS left. She recalled that her father told her that he wanted to give JS time to see what he was going to do about the allegations and whether he was going to get help.
84JM has not seen JS since.
85JM stated that she told her parents about this because she did not want any more. “I was sick of being used and being hurt”, she said.
86She recalled that her father found out about it from AR. She stated that to her knowledge, her father only knew about this incident.
87At the kitchen table, she recalled telling her father that there were incidents that took place between her and JS “that shouldn’t happen”. She stated that she wanted to see if JS would tell anyone and apologize.
88JM could not remember if she told her parents about the other incidents. She recalled only describing the kissing incident to them in detail.
89She recalled feeling scared, upset and angry after she told her parents and her sister. She also felt hurt because JS made her father question whether what she said was true. She was also hurt because she wanted to “bond with him”.
Cross-Examination Re the Kissing Incident
90Defence counsel asked JM if she was aware of a family tradition or game of suddenly turning so that one intending to kiss someone on the cheek ends up kissing someone on the lips. At first, JM stated, “Not that I can recall”. She then stated, “It may have happened once but I don’t remember.” She added that she had never seen it happen between her father and her sister but her father and her mother often did this in a joking manner between themselves. JM agreed that it was possible that JS did this in the same way, “as a joke”.
91JM stated that she did not have any recollection about JS being “kicked out” of the house because AR found a bottle of alcohol. “I didn’t involve myself in his personal stuff”, she said.
Incident 6 -- The Breast Touching Incident
92The Crown asked JM if there was “any other incident.” JM stated that there was “maybe one more” when they were downstairs and he touched one of her breasts. She recalled saying, “You don’t do that. That’s not right.” She recalled that JS stated, “What do you mean, it’s just a boob. Why do you react this way?”
93She stated that this incident also happened in the basement on his bed. She stated that they were just sitting there watching something on his tablet or his tv. She could not remember “what provoked it” and stated, “It came out of nowhere. He came up and felt my boob.” After he said, “Oh it’s just a boob.”, she stated, “It’s not just a boob, that’s mine. She got up and went upstairs.
94She recalled that he wanted to see how big her “boob” was. She recalled that he did not grab it and play, but he wanted to see if she “had any type of boob at all.” She recalled that he just laid his hand on it. She recalled that the touching occurred over her shirt.
95JM recalled that she was wearing a t-shirt that was a size bigger than her size. She stated that she usually wore large clothing in order to be comfortable. She recalled that they were on the side of the bed. Her left arm was holding her up. He was laying behind her on his left side.
96She recalled that she pushed his hand away, moved her shirt away, sat up and said, “Don’t do that.” She stated that he reacted as if she did something wrong. When asked what he said, JM stated, “I think it was, "Why did you react like that?"” She repeated that she told him that it wasn’t right. She recalled that he told her there was nothing wrong with it. She stated that it seemed like he wanted to have a different outcome, that he “wanted to go further.”
97JM described his room in detail. She recalled that his room did not have actual walls. Makeshift walls were created by shelving units. She recalled that one shelving unit had food on it and the other had sleeping bags and camping equipment. This shelving unit was closer to her father’s workshop.
98A fitted sheet or a blanket was draped over this to create a doorway and give him some modicum of privacy. She stated that one could not see through the blanket or sheet. The space was not large. There was a “standard sized” dresser with a “small to medium sized flat screened” tv. Across from the dresser was his bed. It was not very big. She stated that she thought it was a twin size. There was another dresser on the wall opposite to the door. It was a little smaller than the first. There was a chair in the middle of the room. The bed was pushed up against the wall across from the tv. She was shown a diagram of the area that she made three years ago when she gave her police statement and she recalled making that diagram.
99She recalled that the incidents took place during the mid-afternoon. She estimated that it was somewhere around two or three o’clock. Her father was working in Ottawa. AR, who worked in Pembroke, was either on her way home or upstairs laying on the couch. Often, AR would be asleep.
100She recalled that her father worked on the rapid transit project in Ottawa. He did not really have set work hours. Sometimes he came home when it was still daylight and sometimes, he came home after dark, occasionally as late as 10 or 11.
101JM had difficulty recalling which incident happened first. She stated that she was not the best with times and that it had been a long time. She stated, “I want to say the unwanted touching”. When the Crown asked which incident that referred to, JM stated “the one with my boob.” She recalled that it was warmer when this incident took place.
Cross-Examination Re the Breast Touching Incident
102JM agreed with defence counsel that this was the only incident between her and JS where she was alleging that he touched her breast.
103Defence counsel put to JM the following extract from Part 2 of her Police Statement at lines 270 to 280:
Police: Did he try to touch you when you were bare chested?
JM: Not exactly. He’s like made like a comment being hey don’t be so scared there [sic] actually a good size. And he’s like straight up like show of like cups for his hands. And like he’s like made the joke on like himself where he’s like touched himself and then went like that. And like I looked at him just like go away. And then he’d be like no there [sic] a good size and everything. And I’m just like why would a brother do that?
104JM agreed that this conversation referred to this incident. She also agreed that in her police statement, she told the officer that he gestured with his hand when he discussed the size of her breasts.
105Defence counsel then put to JM the following extract from Part 2 of her Police Statement at lines 285:
Police: Okay. And how many times did that happen?
JM: Just the once, just because of what was happening with my clothing like it was. Because I was trying to remove like a tag or something like a loose hair.
106JM agreed that she did not mention the tag when she testified in-chief. She stated that this happened so long ago, she could not remember. She stated that she had issues with clothing tags on shirts and clothing and she was trying to remove them. She asked JS to help her remove it. He was having a hard time trying to remove the tag. She disagreed with the suggestion that he touched her by accident. She disagreed because he commented about the size of her breasts and “he wanted to see for himself type of thing”.
107Defence counsel put to JM that there was nothing in her police statement about the “it’s just a boob” exchange she described in-chief. She agreed. “Yes, there are a few things I might have forgotten to tell them.”, she stated.
108She agreed with defence counsel that she told the police that she was wearing a “graphic t-shirt”. She also stated that she had a recollection of that now. She stated that she believed that the t-shirt was the clothing that had the tag on it which she wanted to remove because she could feel it directly on her skin.
109Defence counsel put to JM that at page 9 of Part 2 of her Police Statement, at line 307, she stated that she had a thick hoodie on. Defence counsel asked, was it a hoodie or a t-shirt?” JM replied, “I think I was wearing the hoodie over the t-shirt.” Defence counsel pressed further, asking whether, when she asked JS to help her with the tag, the hoodie was on or off. JM stated, “Off or almost off”. When asked, “Who took it off”, JM stated, “I began to take it off and he assisted with getting it up and over my head.” She stated that she had “a little but not the greatest” memory of that. She agreed that she did not discuss wearing a hoodie when she testified in-chief.
110Defence counsel then put to JM the following extract from Page 9 of Part 2 of her Police Statement:
Police: Okay. And you remember what time of year in grade nine?
JM: It was getting a bit colder. Like cause I was starting wear like jackets and everything so I think it was starting to get to like winter area. But it was like, it wasn’t snowing it was like getting really cold, like frost, like frostbite and everything, so.”
111JM agreed that when she testified in-chief she thought that it happened when it was warmer out because the woodstove was not on. She stated that some of those mornings, it was cold at the beginning of the day so she wore a sweater.
Incident 7 -- The “Trying to Go Downstairs” Incident
112The Crown refreshed JM’s memory with her police statement.
113JM then recalled that there was another incident of touching where JS put his hand on the back of her left thigh. JM recalled that when he did this, she asked him what he was doing. He told her that he was trying to get comfortable. She recalled that he “was slowly trying to see if he could get any closer to my lower half” and “he got closer and closer to my downstairs.” JM stated that her “downstairs” meant her vagina. JM recalled that it got too uncomfortable and she sat up. At this point, JS asked her if everything was ok. JM told him that she was uncomfortable and she went upstairs.
114She stated that this touching was over her pants. She could not specifically recall what she was wearing but noted that she usually wears jogging pants. She recalled that they were together in the basement for two or three hours before this incident happened. They were watching a movie. They were in a spooning position.
115She recalled that he was wearing the same sort of pants. They were dark-coloured.
116She said that this happened a few days after the boob incident and about a week before the choking incident.
117This incident is remarkably similar to Incident 2 -- The Touching on the Bed Incident. At the end of the day, I cannot be sure whether these are the same or two different incidents.
Incident 8 -- The Penis Touching Incident
118The Crown asked JM if there was anything else she remembered. JM stated, “No”. The Crown then again refreshed JM’s memory with her statement.
119JM then stated that she can “kind of” remember JS bringing up the fact that because of her age, JM did not know much about the opposite gender. She stated that this may have come about because she asked him a question. She was not really sure about that.
120She stated that JS said something to her about showing her what male parts looked like and “seeing how it feels to feel what guys have.” JM stated that she did not want to do this. He told her that it would be ok. He then proceeded to get her to touch him “down there”, in his crotch area, through his pants.
121When asked to elaborate, JM explained, “From what I remember, he guided my hand; I barely touched it. I jerked my body away from his and I got out of the way from his bed.” She was pretty sure that he grabbed her right hand by her wrist and forearm and pushed it “down there”. When asked to specifically describe what she touched, JM stated, “The outline of his penile area”. When asked to specifically describe this again, JM stated, “His penis”.
122JM told JS that she did not want to do this. She stated that he asked her, “Why?” She told him that, “It was disgusting for him to want her to do that to a sibling”.
123JM recalled that when she got up from the bed, JS got really angry. She went back upstairs.
124She recalled that the touching occurred over the clothes. This incident happened in the basement on his bed. This incident happened in the late afternoon.
125Before this incident happened, they were having a conversation about how she was doing at school and “everything like that.”
126She stated that this incident happened after the boob incident.
127She recalled that he was wearing reddish/black tight fitting pajama pants. She was pretty sure that she was wearing a t-shirt and pair of pajama pants that were given to her.
128In cross-examination, JM stated that she could not remember what time of day this incident took place. She surmised that she had been to school that day. She could not remember anything else she was doing in the basement that day. She stated that her hand was on JS’s private area “not long. A minute or two. Five seconds”. There was touching and she pulled her hand away.
129She remembered that her father was not at home. She was not sure whether AR was home or was just getting home.
The Reasons for the Delay in Reporting to the Police
130JM ultimately left home herself in 2018 or 2019. She stated that around this time, her father asked her if he could ask JM if anything else happened.
131JM recalled that when she (and AR) revealed what happened to her father, he asked her if she was going to do anything about it. She told him that she was thinking about calling the police and “filing something” but she did not know whether she could because of the delay.
132JM stated that when SS confronted JS about what happened, JS assaulted SS. JM was not present. SS called her and told her about this. SS told her that she “might want to take legal action about what happened.” Apparently, SS reported the assault to the police.
133As a result of this conversation, JM called the police and reported what happened.
134JM stated that she felt bad because her dad got hurt because of what she told him about what happened between her and JS.
Other Issues Raised in Cross-Examination
135In cross-examination, JM agreed that the order that the incidents occurred was:
a) The first incident was when he touched her breast (Incident 6). This happened a few months after the family moved to the Valley and after her sister left the house. JM testified that JS was the only person that she felt she could talk with and connect to. She believed that this happened when she was closer to 14 years of age. She believed she started in Grade 9.
b) The second incident was when he put her hand in her crotch over her clothes (Incident 7).
c) The third incident was the Stripping incident (Incident 4).
d) The fourth incident was the “Touching on the bed” incident (Incident 2).
e) The fifth incident was the Choking Incident (Incident 1).
f) The sixth incident was the “Hide and Seek in the Dark” Incident (Incident 3).
g) The final incident was the Kissing Incident (Incident 5). She agreed that this incident took place sometime in 2017.
136Defence counsel did not include Incident 8, the incident where JM alleged that JS had her touch his penis.
137This order does not make sense. On JM’s other evidence, the Stripping Incident occurred after the Hide and Seek in the Dark Incident because the Stripping Incident was JM’s penance for supposedly accidentally touching JS during the hide and seek game.
138JM agreed that although her evidence in-chief was to the effect that all of the incidents happened within a couple of weeks of each other, it was more likely that they occurred over a period of months. JM first posited about two months. When pressed on this further, she agreed that it might have been over a period of three or four months.
139JM recalled that the Touching of the Breast Incident (Incident 6) occurred when it was warmer outside because the woodstove in the basement was not operating. When the Choking Incident (Incident 1) occurred, however, it was colder because she recalled the wood stove being on. JM then agreed with defence counsel’s suggestion that the choking incident happened about a year after JS lived there, sometime in 2016. JM agreed.
140Defence counsel then suggested to JM that her evidence about telling AR about the Kissing Incident in 2017 suggested that the incidents happened over a period of years, not months. JM agreed with this and said that she was “trying to think” about the time frame but she “really can’t remember”. She elaborated that sometimes there were a few days and sometimes there was a week or two between the incidents.
141As I have already indicated, it is clear to me after going through the multiple versions about the order in which the incidents occurred a number of times, that JM has no idea when each incident occurred in relation to the other, or in relation to actual time. I comment on this more extensively below.
142JM agreed that her dad worked Monday to Friday from 9 to 5. Some days he came home later. AR also worked 9 to 5 but she was employed closer to their home. AR’s usual routine when she got home from work was to relax. She was often tired because of the physically demanding nature of her job.
143JM had no recollection of JS being involved in a job training program in Pembroke.
144Defence counsel asked JM about alcohol consumption in the home. JM stated that her father had the occasional drink. AR would have one “once in a blue moon”. She disagreed with the suggestion that her parents drank a lot more than that. When asked whether there were any occasions where one of her parents drank to the point of intoxication, she stated, “If there was, there was always one parent that did not drink as much.”. She recalled that AR’s beverage of choice was beer; her father liked “spirits”.
145JM recalled that if her father did drink after work, he might just have one. She stated that he did not continue drinking because he was exhausted. She recalled that AR did not drink at all after work, “unless just to relax”. Neither parent drank “a whole lot” unless it was on the weekend.
146JM recalled knowing that JS was a recovering addict. She agreed with defence counsel’s suggestion that this was a source of conflict between JS and her parents. She stated that AR had a habit of asking JS whether he was high or drunk or whether he had been drinking. She recalled that her father would buy him non-alcoholic beer. She did not recall any time when JS was upset about her parents’ consumption of alcohol.
147JM agreed with defence counsel’s suggestion that there was a fair amount of conflict between JS and AR. There were often arguments with raised voices.
148She also agreed that there were arguments between her father and JS. Those arguments were not as frequent.
149JM recalled that the frequent source of disagreement was the fact that JS needed to get a job.
150JM recalled that there were also arguments between her and JS about chores. She recalled they argued about a chore involving the woodstove. She also argued that they were doing a chore outside and she stopped doing it because she was tired. She recalled that JS accused her of trying to get out of work.
151With respect to JS’s living arrangements in the basement, JM agreed that if the blanket that acted as the door was moved, it was possible to see upstairs. A person at the front door of the residence would have a direct view of the dresser and the tv. They would not, however, have a view of the bed because a shelving unit would block the view. Of course, if the blanket was in place, nothing in JS’s “room” could be observed from upstairs.
152JM could not recall ever being told by her parents not to go to JS’s room because JS smoked marihuana there.
153JM agreed with defence counsel that she played different video games than JS did. She recalled that he played “shooting games” and she played “story-telling games”. She recalled trying some of the games that JS played. She also recalled that he would frequently watch movies on his tablet.
154JM agreed that there was limited text messaging between her and JS while she was at school. She recalled that her school had a policy against texting unless it was an emergency. If she texted him, it was a quick text. She agreed that she sent him videos and photos.
155JM agreed that there was a heating grate between the basement and the upper level of the house. She also agreed that there was no door separating the two levels, so it was fairly easy to hear what was going on downstairs. She agreed that JS was able to hear her telling AR about the kissing incident and AR tried to tell JS that they were talking about something different so he did not think they were talking about him.
156JM agreed that during a number of these incidents there were times when JS would get upset and yell. She also agreed that if her parents were home, they could hear the yelling upstairs. She stated that they were used to him getting upset frequently.
Evidence of AR
Background Information
157AR is JM’s mother. At the time of the incidents, she was married to SS. They are now separated. She has two children with SS, JM who is now 22 and JZS who is now 23.
158AR believed that JM was 14 or 15 when the family moved to the Valley. Both she and her sister JZS were in high school. JM was just starting Grade 9.
159JS is SS’s son from a previous marriage. He resided with them “the year of the flooding”, which AR believed was 2017. She remembered that he moved there around Easter. She remembered it because of the excessive flooding. She explained that SS told her that JS was coming to stay with the family. Before that he was homeless.
160AR stated that she was working full-time in Pembroke. Her work required her to wake at 6:00 am in order to be at work by 8:00 am and her scheduled finish time was at 4:00 pm. She indicated that sometimes she would finish at 1:00 or 2:00 in the afternoon. She would then go home and figure out dinner. She worked Monday through Friday.
161When she got home from work her normal routine was to bring in her belongings. Sometimes she would tackle some gardening. Often she would “veg out” on the couch to relax and unwind from work.
162AR recalled that JS lived with the family about three or four months. He left Father’s Day weekend because “we had to kick him out.” They made this decision because AR picked his belongings up from a friend and found empty beer bottles. The friend told AR that JS should not come back there again and he was breaking his rules.
163She stated that she called her husband and reported that JS was “being bad”. She agreed that SS told her to get the rest of his stuff and “he’s out”. AR recalled raising the fact that JS had nowhere else to go and SS said, “That’s not our problem”.
164AR stated that she observed a lot of aggression between JS and JM. They made “a lot of mean comments” to each other. AR chalked it up to being a “brother-sister thing”. They were aggressive and yelled and screamed at each other. Although she often heard these arguments, she admitted that she did not get into it and find out what was going on. She recalled once hearing JM state “I said, “No”. I don’t want to”.
165AR stated that JM spent a fair amount to of time with JS. She was with him every night or a couple of times a night, often for a couple of hours. They watched movies or played games. AR recalled hearing the television or the gaming. She did not recall hearing anything that caused her concern. Occasionally she would hear someone say “no” and there was the odd argument which ended when she told them to stop. She would hear the odd laugh or a bit of a giggle.
166AR recalled that JZS moved out in 2017 or 2018. Not long after JZS left, JM also moved out.
Cross-Examination Regarding Background Information
167AR stated that she finished work early two to three times a week. On these occasions, she would often be home when JM returned home from school. JZM was still living at home. She would also be home after school on most days.
168AR described JS’s room in the basement. She agreed that it was fairly easy to hear what was going on, depending on the noise level of the television. She recalled often hearing mumbling. She agreed that when she gave her statement to the police, she stated that she would be able to hear conversations through the floor. She agreed that she could hear a bit more than mumbling. She also could hear if someone yelled or raised their voice.
169AR stated that, depending on traffic and weather, SS usually arrived home between 5:00 and 6:00 pm.
170AR recalled that JS and JM would say “mean things” to each other. She stated that JS and JZS also exchanged mean things. She stated that JS coming to live with the family was stressful. She disagreed that he was a “stranger” to JM and JZS.
171AR stated that prior to living in the Valley, he lived with the family in Ottawa. Defence counsel asked AR if there was discussion about having JS move in with them and having him move with them to Killaloe. AR stated, “SS imposed it on the family.”. AR stated that SS was afraid that JS would end up back in custody. She recalled that JS had lived in Harvest House in Ottawa1 for a period of time.
172AR agreed that she and JS “butted heads”. She described the relationship as a “very tense step-mom/step-son relationship”. She stated that it was more stressful because JS was a recovering addict. They frequently argued and she disagreed with his use of marihuana. She agreed that JS was ultimately asked to leave when she discovered a bag of empty alcohol bottles.
173AR agreed that she consumed alcohol in JS’s presence. She denied regularly drinking after work. She stated that SS would regularly drink after work and described SS’s use of alcohol as “a wind down”. He controlled his consumption. SS never drank to the point of passing out and he was always able to work the next day.
174JS was not allowed to drink.
175AR stated that although she and JM had a close relationship, JM moved out when she was 17. She also reported that they were having a hard time in the relationship because of the stress associated with the trial.
176She recalled that JS was asked to leave the house Father’s Day weekend, in June of 2017.
177AR denied having any more than “very little” discussion with JM about the things that happened between JM and JS between 2017 and when JM reported to the police in 2020.
178AR recalled going to the OPP station to give her statement. She did so after talking to JM. She recalled that JM told her, “Mom I finally went in. Would you please go in and do your part?” She denied going over the events of what took place with JM. She stated that this was a short stressful discussion over the phone. JM was having a hard time. AR had the impression that JM had just finished giving her own statement. When defence counsel asked AR if she and JM compared or prepared memories of what to say, AR replied, “Not really”.
179AR stated that after JM moved out they communicated by text. They saw one another very rarely. Their visits usually occurred on holidays and when it was her grandson’s birthday.
180AR stated that she became aware that this matter was going to proceed to trial sometime in 2021. When asked whether there were any discussions about it with JM, she stated that they tried not to talk about it too much. She said that it dredged up too many memories. It was stressful. The conversation would degenerate into a discussion or argument about who was at fault or whether AR should have called the police. They talked about “what if’s” and what should have been done.
181AR stated that JM moved out of the house in August or September 2017.
The First Disclosure
182AR recalled that in April 2017, JM told her that she was scared and not comfortable. JM sat really close to her on the couch. AR stated that she had to encourage JM to whisper to tell her what was going on. AR recalled that JM was very upset. She said that she did not feel comfortable going downstairs anymore. AR recalled that immediately before this discussion JM was in her room. AR was certain that this conversation happened in April 2017 because of the flooding. AR recalled that when JM spoke she was shaking. She was trying to get her calmed down. When this conversation took place, JS was downstairs in the basement.
183She recalled that JS often hollered up at them through the floor. He would tell them that he could hear them talking about him. AR stated that she told him to come up and talk and “he refused every time.”
184On this occasion, JS basically told her that what had happened was a brotherly-sisterly thing and they were just watching a movie.
185AR recalled that on a couple of prior occasions, JM ran to her room after “scurrying” up the stairs. JM would then go into her bedroom. After a short while JM would come and sit beside her. AR recalled that there were two consecutive nights where this took place. AR said that JM would not tell her what was happening. She would only say that she was afraid, not comfortable or did not feel good.
186On the one occasion JM revealed anything, she told AR that JS was making her “do weird stuff”. When the Crown asked AR to describe the nature of the “weird stuff”, AR stated that JM complained that JS was not being appropriate. JM told AR that she was afraid of him and “felt gross”. She repeated that when they were having this conversation, JM appeared “very upset”.
187AR stated that JM was very hesitant to elaborate. AR had to “keep digging” for information. Finally, JM “opened up” and told her that JS was asking for things including “back rubs”.
188After this disclosure, AR called SS.
189She recalled that the disclosure happened in the evening. SS was working in Ottawa.
190AR recalled that when she spoke to SS he hesitated. He asked AR if she was sure about JM’s disclosure. He asked AR if she “pissed off” JS.
191When SS ultimately came home, he questioned the kids about it. She recalled that he did not do much about it. AR opined that he was just too tired from work to be bothered by anything. It seemed like he was brushing it off. Despite this, AR recalled that SS talked to JS but she did not hear that part of the conversation. AR recalled that SS came home at around dinner time.
192SS and JS had their conversation either in the kitchen or outside while they were having a smoke.
193AR was troubled by it all and could not sleep. She did not know what to do next. She reiterated that JM only told her about a back rub and the fact that JS was “acting weird”. JM did not get into detail.
Cross-Examination Re the First Disclosure
194In cross-examination, AR agreed that JM did not tell her that JS was touching her inappropriately. She just said that he was “acting weird”.
The Second Disclosure
195AR stated that there was a second time when JM ran to her to tell her that something was going on. AR recalled that when this incident took place, she was outside doing some gardening.
196AR also stated that JM called her when she was finishing her work. JM told her that she was scared to walk through the bush and meet JS at the bus stop because JS was acting “mean and weird”.
197When JM came to her she was working in the flowerbeds, JM told her, “I can’t do this Mom. I can’t do this anymore.” AR recalled being shocked and angry. She tried to dig for more information. This conversation happened at 3:00 or 4:00 when she was finished work. She called SS right away.
198She recalled that SS arrived home at about 6:00 pm. She told SS that something was definitely wrong and they needed to talk. He suggested that they go out and sit on the Adirondack chairs. She stated that JS, SS and she were present. AR recalled telling JS that she wanted to know the truth and she wanted to know what was going on. AR stated that JS told her that “the girls don’t like me” (referring to JM and JZS). She recalled that he “hid” behind sunglasses and he would not take them off. She could not get any answers out of him.
199AR recalled that SS was also curious and demanded answers. She recalled that SS stated, “They are your sisters. What did you do?”. JS told him, “It’s them against me.”
200AR stated that after this conversation SS convinced her to have all three kids sit at the table. He wanted them to apologize. He wanted to do a healing circle. She said she did not understand what they were apologizing for and they did not know what was going on.
201AR stated that there was a conversation at the kitchen table with all three children. This happened around 7:30 or 8:00 pm. The atmosphere was stressed and intense. AR stated that she told the children that she wanted to know what was happening between the three of them. In response to this they apologized for making noise and screaming and yelling at each other. AR stated that she knew that there was more to it. She told SS that she wanted to call the police. SS refused and said he wanted “to get this settled”. He told her, “I want my family together. I want to get this figured out.”
202AR stated that she was very dissatisfied with the outcome of the conversation. She still wanted to call the police but she did not do so because she and SS “were going through domestic violence.” She never did call the police about this. AR cried when she was relating this history.
203AR stated that she ultimately provided a statement to the police once JM developed the courage to speak up. AR stated that she convinced JM to speak up. She was relieved that she was doing something. She also felt guilty that she should have done something sooner.
Cross-Examination Re the Second Disclosure
204AR stated that there was no overt discussion about inappropriate touching when they had the conversation at the kitchen table.
Evidence of SS
205SS is 54 years of age. He is still living at the family home in the Valley. He suffered a stroke in 2019. He told the Court that this has affected his memory. He could remember some specifics, but dates were a problem.
206He recalled moving to the Valley from Ottawa sometime in the summer of 2015. To SS’s recollection, JS did not live with his family in Ottawa. The family unit was comprised of his wife and his two girls.
207There were times when JS lived with the family in Ottawa. SS could recall two occasions, but he could not recall the time frame. He stated that JS would live with them for a few months and then “matters would deteriorate, and he would be out”. Otherwise, JS lived on the street or in rehab. To his recollection, when the family moved to the Valley, JS was still in rehab or about to go to rehab again.
208SS recalled that JS moved in with the family after Christmas. He could not remember what year it was. He recalled that they moved JS in after something went wrong at Harvest House.
209JS lived with the family until about September 2017. He remembered this date because he had refreshed his memory by reading his statement the day before he testified. He stated that JS had lived with them a year or less. He stated that AR did not want him to bring JS into the family because things had broken down between her and JS.
210The Crown asked SS why JS left home. SS stared to cry. He stated that there was an incident where he returned home from work to find JS out at the main county road near their residence leaning against a stop sign or a tree. When he picked him up, JS told him, “I’m evil. Just kill me. You brought me in. Take me out.” SS related that he knew something was happening at the house because he could hear the yelling at the end of the road. He added that the driveway to the residence is quite long.
211SS stated, “Nobody would say what really happened.” In response to this SS decided to convene a round-table meeting. He gave everyone the opportunity to “state their case”. Despite this, nothing was accomplished. “Nobody said anything of the nature that we are here for today.”, he said. The meeting broke down to yelling and screaming. Shortly after the meeting, JS left the residence.
212SS stated that according to AR, he did not react to what was going on properly. “That’s a different thing. I don’t need to talk about it”, he said.
213When the Crown asked SS what his understanding of what was happening was, he stated, “To me it was the same pile of crap that was always going on. There was yelling and screaming. They had never got along. JS was jealous of my girls because they had me and he didn’t growing up. I thought the girls were jealous of him. At that time, I didn’t know the things I know now. And I wish I didn’t.”
214He cried again as he related this. It was clear to me from his evidence that he honestly believed that he did not know about any allegations of sexual impropriety by JS against JM until later.
215SS stated that he did not have much of a conversation with JM before the kitchen table meeting. He recalled that when he got home with JS “in tow”, AR, JM and JZS were screaming “amongst themselves”. He stated “[JS] was trying to tell me I guess that he had messed up severely. I didn’t realise it. I didn’t know what was going on at the time. Again, I thought it was all the same stuff.”
216SS remembered JZS trying to get JS to say something, but JS would not say anything so the meeting broke down. The meeting was his attempt to put some organization to their issues. “It didn’t work and here we are”, he said.
217When asked to describe everyone’s demeanour, he stated that AR was “grumpy”. JM was “upset and grumpy”. JS had his head down and kept asking him to “take him out”. JS did not “come out” and specifically tell SS “anything that he had done.”
218He denied that there was ever a prior occasion where he was told about something that happened between JM and JS.
219SS stated that JS left the family residence a few days after the round-table conversation. He said that to that point, JS had been thrown out of his house a number of times. This was just another one of those times; “there had been no foreshadowing about what we are here for today”, he said. The move was triggered by a lot of fighting “about weed”. He said that AR did not like it. He stated that he was “ambiguous toward it”. It was a “big topic” and it caused “a lot of fights.”
220SS recalled that JM disclosed more in September 2020. He stated that his marriage broke down shortly after that. He recalled that he was on a three-way telephone conversation with AR and JM where JM started to tell her story. He said that JM started to “get into certain details”. He stated that he stopped the conversation because “he didn’t want to hear it.” He was crying when he told the Court this. He said that he “didn’t want to hear a damn thing. I know I am going to but I don’t want to.”
221Based on my observations of SS in court, it is clear that he found JM’s revelations extremely difficult to deal with.
222SS stated that he called the police in September 2020 after JS attacked him. He then spoke with the police again about this case. He recalled that “we” (I infer he was talking about JM and AR) talked about having to “bring the police in on it”. This also happened in September of 2020.
223He stated that September 2020 was the first time he heard that anything had gone on between JM and JS other than arguing and fighting, which up until September 2022 he thought was about doing chores and general sibling fights.
224He admitted that because of his work, he did not really have the energy to do anything about the arguing and fighting. “I didn’t have a lot of time for family, I guess.”, he stated. He stated that he was commuting about four hours a day back and forth to Ottawa. He also worked ten to twelve hours a day. He left the house in the Valley to go to work at 4:00 am and he usually returned home at about 5:30 pm, assuming that things went well with traffic.
225SS stated that JS moved back in with him in October 2020, once AR and he separated. JM was, by this time, living with her husband elsewhere in the Valley. He did not know where AR moved.
226When asked to confirm the timing of JS’s move back into his residence vis-à-vis JM’s disclosure, SS stated, “I did move him in knowing what he did.” He recalled that JS stayed with him until the day before Remembrance Day in 2020. They had a confrontation that day “about what he had done to his sisters.”
227Not long after that, he gave his statement to the police pertaining to this matter.
228He stated that other than the three-way conversation with JM and AR, he did not have any conversations with JM about what happened. “My focus at the time and my reasoning was to find out”, he stated. “And I did”, he added. He again started to cry as he said this.
229Unfortunately, he was not asked what exactly he meant by “And I did”. It was left hanging in the evidence whether by this he meant that he had a conversation with JS (and JS made an admission) or whether he had further conversations with JM.
Cross-Examination
230SS stated that he became estranged from JS when JS was six or seven years old. They then reconnected after JS was an adult. SS stated that when JS was in custody, he reached out to SS’s mother. “It went from there. We looked each other up.”, he said. He reached out to JS on Facebook. He recalled that JS was 21 when they reconnected. He could not recall what year it was.
231SS stated that JS came to Ontario. He picked JS up at the bus station. He moved JS into his apartment. SS agreed that this probably happened in 2016.
232SS stated that although AR “tried to do the mom thing”, she was not really supportive. Friction developed between AR and JS. There was also a lot of yelling and fighting between the children. “My children. My spouse. All of them. It was a constant for me to come home to that environment.”, he stated.
233SS agreed that JZS moved out first and she went to live with her boyfriend. He stated that he really didn’t pay attention to it because he was working. He stated that JZS was probably the one who did not get along with JS the most. He recalled that JZS was present at the round-table meeting.
234SS agreed that JS did not have much to occupy his time when he first moved in. He was not working and he was not going to school. Ultimately, he enrolled in a job training program in the same town where AR worked. AR or SS would drive him to the job training program. After the job training program, JS got a job working with a company processing firewood. He worked regular hours there and AR would pick him up on the way home from work.
235SS agreed that one of the areas of conflict between JS, JZS and JM appeared to be jealousy. At least so SS thought. “Nothing else was said to me. I was kept in the dark”, he said. He stated that there were also arguments about chores. JS and AR argued about weed. When asked whether arguing was a “daily occurrence”, SS stated, “It feels like, yes. I am sure there were days when it didn’t happen but it was pretty regular.”
236SS agreed that JS was kicked out of the house after AR discovered that JS was drinking in Pembroke. He could not recall the details “100 percent” but recalled that “there were always incidents about him drinking and doing weed when he was not supposed to.”
237SS agreed that he kept alcohol in the home. He always had “a double whiskey on the rocks” when he got home. He knew that there was marihuana in the home but “that was a secret.” He used marihuana but said he was very discreet. He used about a joint a day. He stated that he sometimes would use marihuana when he got home “at the end of the driveway listening to them scream.”
238SS stated that AR would usually have already had a couple of glasses of wine when he got home. The bottle would then be gone by the end of the night. It was normal for her to have a few drinks. He clarified however, that her consumption was lighter than his and her drinking a full bottle of wine might have happened about once a month.
239His consumption of alcohol did not interfere with his ability to get up the next day and go to work. “It was enough to get you off to sleep”, he said.
240He agreed that he had a stroke in 2019 after “stress caught up” to him. After his stroke, JS came back to live with him and was looking after him. “I was learning that things were different between him and my daughters than I had been previously thinking. So I brought him close so I could figure things out. And I did.”
241As with a similar comment in-chief, neither Crown nor defence counsel asked SS to explain what he meant by this comment.
Evidence of JS
242JS testified that he is 34 years old. He is not married. He does not have any children. He is of Indigenous decent from his mother’s side. He completed a Grade 9 education. He is currently working as the foreman of a roofing company. He has been working there for six and a half to seven years. He is originally from Pembroke. He resided in Nova Scotia for a while.
243When asked to describe his relationship with SS, he stated that he “would like to say it was good” but “It wasn’t great.” “Things happened” when JS was six years old and “things disappeared on me.” Consequently, he did not have contact with his father for 15 or 16 years.
244JS recalled that they reconnected while he was doing time in Nova Scotia. There was a call to JS’s grandmother’s house. SS reached out by Facebook.
245JS said he moved back to Ontario at SS’s invitation “to be part of the family”. He was 21 years of age. He estimated that this happened in 2012 or 2013.
246They first lived at A Street in Ottawa.
247He went to live with the family in the Valley after JS was “doing recovery time”. He stated that he spent “two years at Harvest House.” He went home for Christmas and he was late returning. He was unshaven and not dressed properly. Consequently, Harvest House kicked him out. He made arrangements to go live with SS.
248He returned to the Valley in 2016 and 2017.
249JS stated that he was in recovery at Harvest House for drugs and alcohol. He stated that “drugs were my number one choice.” The drugs he used were marihuana, morphine and oxycontin.
250When he first left recovery, he thought things went well. But they became difficult. He lived with his father SS, his two sisters and his step-mother AR in the Valley for four or five months. He reckoned that this was between mid-January and June.
251JS said that his relationship with everyone was good right after he moved. He did not like living in the basement, which he said was “dark, stinky and gross”. He also found living in that part of the Valley lonely. He was in the “middle of nowhere” and he had no one to talk to during the day.
252He stated that things went fairly well at first. He indicated that there was always tension between him and AR, who did not like the fact that he did drugs.
253JS reported that he managed to maintain his sobriety between January and June. He complained that he watched SS and AR drink and he also watched SS smoke cigarettes. He found the cigarette smoking particularly difficult to deal with. Despite that things were starting to get difficult, he reported that he did not relapse.
254At one point, however, he had a bottle of Jager with a friend in Pembroke. AR found out about it and she received a garbage bag of empties. JS denied that the empties were his and stated that they probably belonged to his ex-girlfriend or the guy who was living there.
255JS indicated that JZS lived there the entire time he was there. They bumped heads a lot.
256He did not know JM well. He said that they were trying to get to know each other and spent time “here and there hanging out”. They talked, played video games and movies on Netflix.
257He stated that there was a lot of yelling and fighting, usually about chores. He was most sensitive to the issue of cleaning the cat litter box because it was under the steps in close proximity to his space in the basement.
258When he first moved in, he did not have a job or go to school. He spent his time cleaning up the house and doing dishes.
259A few months after he moved in, he engaged in a job program in Pembroke. AR drove him every day. The point of the program was to develop a better resume and fit into a working community without feeling strange or foreign. There were programs that assisted JS in learning how to speak to a manager or boss without getting anxious or insecure. The course started in March or April and went until June. It took place every day except the weekend. JS recalled that the program would last until about lunch. Once the program was finished, he would go home or stay and get hours.
260After the program was finished he worked at a logging company. He developed tendonitis as a result of his work there and left it. He went back to the program to help find another place to work. After that he worked at a hotel in Pembroke but it didn’t go so well and he got fired. He then got the roofing job.
261JS recalled that he worked regular hours five days a week for about a month and a half at the logging company. AR would drop him off in the morning on her way to work in Pembroke.
262When asked about the incident where it is alleged that he touched JM’s breast, JS stated, “Not to my awareness. I don’t remember ever doing that”.
263He did recall that they would be together when they watched movies. He stated that he could have touched her “by accident” and any touching, if it occurred, was not deliberate.
264He stated that he never commented on the size of JM’s breasts and he did not make a cupping gesture with his hand.
265He completely denied the allegations where JM alleged that he had her touch his penis. He also denied having any conversation with her about the male anatomy. He denied ever asking her to take off clothing. He denied ever removing his clothing in her presence.
266Although JS agreed that he and JM texted, he denied ever being upset when she did not respond. He stated that their text messaging was mostly by Facebook or Facebook Messenger.
267JS denied ever touching JM’s hip, thigh, or vaginal area. It is possible he accidentally touched her hip but he denied ever touching her thigh or vaginal area. He specifically denied putting his hand under her underwear.
268With respect to JM’s allegation about an argument where she called him “gay”, he stated, “I don’t recall having that argument. Although he recalled playing video games with her, he did not recall her calling him “gay” or “a fag”. He denied ever choking her or placing his hands on her.
269JS recalled playing hide and seek with JM. He denied any of the touching that she described. He said that hide and seek was a “rare occasion” and it was “never fun or a big deal”. He added that he was older and he wanted to be more independent.
270JS agreed that there was an occasion where she found him on the bed and touched his leg. He didn’t want things to go any further so he stopped the game at that point.
271He stated that the lighting conditions in his room was “dark but not so dark that you can’t see”. He stated that whenever JM was downstairs, other basement lights were on.
272When asked about the kissing on the mouth incident, JS stated that he did not recall anything about that. When his counsel asked him “did that occur?”, JS replied, “No”. When asked about a game where one turns their head at the last minute, JS hesitated before stating, “Not that I can recall”. He did recall witnessing that between SS and JZS in Ottawa.
273He recalled the discussion outside on the Adirondack chairs that AR testified about. He stated that he was “stressed out” and “feeling triggered”. He complained that he was home alone and he was lonely. He only had the dog to talk to. Other than cleaning the house, he had nothing to do. He smoked a cigarette and did not feel good. He recalled walking up to the main road to wait for SS. SS picked him up and they sat down outside. JS was distraught and stressed. He was in a spot that he knew was not a good spot to be in. He was afraid he was going to relapse. He did not want to be evil or be a monster.
274JS admitted to telling his father that he brought him in and he should take him out. He stated that this was caused by the “evil thoughts of wanting to use.” “It haunts you”, he said. He stated that the discussion on the Adirondack chairs was about how lonely he was and the fact that he wanted to go to town.
275JS recalled that there was a discussion with JM and JZS present but that was not until “the circle thing” happened. He stated that the “circle thing” happened a few hours after the Adirondack chairs discussion. He recalled apologizing for wanting to turn back to his old ways and wanting to go back to drug use, cigarettes and “a nasty life”. He recalled bringing up the issue of the cat litter. JZS “had a pickle” when he raised this.
276JS stated that his time with the family ended when AR “went out of her way” to pick up his stuff and found some alcohol. As a result of this, his father called and told him that he was kicked out. His probation officer also called and told him that it was best that he stay in Pembroke.
Cross-Examination
277A lot of the cross-examination was little more than a repeat of JS’s evidence in-chief.
278JS indicated that he lived with the family on A Street in Ottawa on two occasions. The first time he hoped to better his life and get his family’s trust back. He went to recovery “for the wrong reasons”. He left recovery and moved back in with the family. Unfortunately, he got into an argument with SS and AR and relapsed.
279He believes he first moved in with the family sometime between 2012 and 2014. He remembered celebrating his 22nd birthday there because JM and JZS made him a cake. He recalled that he first met his step sisters when they were around ages 11-12 (for JZS) and 10 or 11 (for JM).
280The family moved to the Valley while he was in rehab in Ottawa. He recalled visiting with the family in the Valley while he was in Ottawa. His former fiancé visited with him. He was also permitted to visit with the family for Christmas in 2015. Shortly after that he was not permitted to stay at the rehab facility. After he left the facility, he moved in with the family. He believed that this happened in January 2017.
281He stated that he knew that his relationship with AR was going to be difficult. He described it as a “gray area”. He knew that he wasn’t going to be able to call her “mother” or “have that motherly trust” with her.
282When he moved to the Valley, JZS was a “bull-headed teenager”. She was involved in an on and off relationship. He believed that she was 16 or 17 years old.
283JM had the best reaction to him moving there. She was happy about him coming to live there because she had someone to talk to and socialize with. He recalled that she and JZS were starting to “butt heads”.
284He recalled that he would meet his sisters when they got off the school bus and walk them through the woods. JM often came downstairs to talk. He felt pretty good about that relationship. Most of the time, he played video games. When JM came down to see him, she did not stay long; she told him that she wanted to go text friends or the guy she was seeing.
285JS recalled that he watched a lot of movies. He usually sat up against the bed to do so. He recalled sitting perpendicular to the long side of the bed. He recalled JM being to his right.
286Crown counsel asked him how he felt about JM “just hanging out downstairs with you”. He recalled it was a little uncomfortable because “she was a teenager now”. He recalled wondering “what she was going to talk about next” and being concerned that “something uncomfortable would pop up that he didn’t know how to answer”. Although he was concerned about it, nothing uncomfortable ever popped up.
287“It was awkward”, he stated. The area was “tiny. Like a dungeon”, he said.
288He disagreed with Crown counsel’s suggestion that JM asked him about the male anatomy. He also disagreed that he had her touch his penis as part of that exchange.
289Crown counsel asked JS about he and JM playing games on a tablet. He repeated his evidence in-chief that he would always do this in the living room. He stated that he would often go up to the living room to socialize with JM, JZS and AR. He would stay until he got bored and then return to his area in the basement.
290Crown counsel asked him about playing hide and seek. JS recalled that this was JM’s suggestion. He added that his room was “off limits” and it was fairly dark in the area of his room. He stated that his room did not have a light that was activated by a wall-switch. He had a click on and click off light and he had a lamp.
291He recalled playing hide and seek with JM a few times. “I was more interested in my own life. I was playing my video games. She would talk to her friends”, he said.
292Crown counsel asked JS how the hide and seek game progressed. JS recalled hiding by the storage shelves which he said was right by his door. He said that while he was hiding there, it was the only time that she brushed up against him. He really was not interested in playing. “I was trying to play around to make her happy. Her sister, happy life at that time too, right?”, he explained.
293JS recalled that he liked to play “shooter” video games such as Call of Duty or Battlefield. JM was more into “story” games such as Minecraft. He said that she would often watch him play, ultimately lose interest and go upstairs. Or she would suggest to play hide and seek and “most of the time” he would say “no”.
294JS recalled that JM asked him to download a geometry game which he played in the living room. He recalled saying that this game was “gay”. He recalled that there might be a possibility that she called him “gay” or a “fag”. He recalled calling the game “gay” and leaving it at that. He disagreed with Crown counsel that he got upset, assaulted, or choked JM.
295He recalled that the conversation with his father and AR occurred in June. He believed that it happened shortly after the 10th because he posted on Facebook that he had renewed his relationship with his girlfriend. He recalled that this is when he got caught with the Jager and his father asked him to get out.
296To his recollection, the job program took place in May and he recalled starting at the logging company in mid-May. He stated that once he started at the job program he did not walk JZS or JM to the school bus.
297JS agreed that it was “possible” the kiss incident happened in the Valley. He stated that he did not recall. He reiterated remembering that it happened with his father in Ottawa.
298JS agreed that the atmosphere while he lived with the family in the Valley was tense. He stated that the “girls were at each other’s throats”. There were arguments about dishes not being done or the dishwasher not being loaded. He stated that the only time he got involved was, as he indicated in-chief, was when the cat litter was not being emptied. He believed that the tension predated his arrival. He stated that the feelings of tension, arguments etc. occurred every day. He agreed that he was pretty much “just an observer” to these goings on.
299When the Crown asked him if there were any arguments that involved him, he stated, “Not that I can remember”. He stated – again – that there was lot of fighting about chores. He stated that he would sometimes holler back at them, but only about the cat litter box. He stated that he has “a roofer’s voice” and so he speaks loud.
300He denied ever asking JM to come downstairs. He recalled that the only time that he remembered JM leaving the basement upset was when she talked about “school stuff and boys.” He stated that he teased her about boys and she did not like it. She would storm off.
301He stated that he went upstairs all the time, especially when they (presumably referring to AR, JZS and JM) teased him about staying down. Despite the nature of his relationship with AR, he denied ever having an argument with her.
302Crown counsel asked JS to describe AR’s and SS’s demeanour during the discussion on the Adirondack chairs. He said that they were worried about him relapsing. They were trying to get him to open up with respect to how he was feeling and whether anything was bothering him.
303JS recalled that he spoke up and indicated that he was thinking about relapsing. He told them he was not having “a good go”. He apologized for thinking this way. He stated that the “round-table” or “healing circle” was SS’s idea. He stated that he is normally quiet and shy. No one really knew what was going on. He was confused. He recalled that AR “stormed inside” when JS had a cigarette.
304He recalled that during the “healing circle” everyone looked confused and stayed quiet. He stated that the “healing circle” took place in April before he started the job program. When the Crown pressed about the timing, JS stated, “Now that I come to think about it the job program was in April.” He said that the healing circle happened because he didn’t have to go into work that day. JS stated that there were multiple days when he did not go to the job program. He recalled that on that particular day he decided to stay home and he was the only one home. He decided to sleep in and take some time for himself. He wanted to have a cigarette. He saw SS’s cigarettes and the desire to relapse hit him hard.
305He said that he left the house and went out to the woods before AR caught him smoking which would end up “in a whole world of trouble”. Out in the woods, he had some bible readings and some cigarette butts. He waited for SS in the woods. He reasoned that SS had been through some similar experiences in his own life and would help him calm down. He was out there for a few hours.
306Crown counsel asked JS if he ever got the impression that his presence in the home was the cause of the tension he reported. He stated, that that was so only because he was trying to fit in. He stated that SS and AR did not know how to parent an older person. He complained that they were trying to parent him instead of guide him along.
307Referring to the Hide and Seek Incident, the Crown asked JS if there had ever been an occasion where JM accidentally touched him anywhere on his body. He stated, “I can only recall my leg and my arm, something like that. I don’t recall any inappropriate touching.” He denied ever telling her that she touched something that was not his leg. He denied ever asking her to apologize for what she had done. He denied ever asking her to show him her body as part of that apology.
308Crown counsel asked JS if there was ever a time that JM removed her pants. “Not that I can recall or recollect”, he stated. When the Crown asked him, “You don’t remember or it didn’t happen?”, JS replied, “It didn’t happen.”
309JS denied ever putting his arm around JM when they were watching movies. He denied touching her breast while watching a movie.
310He stated that the only time he ever argued with JM was about the cat litter.
Defence Submissions
311Defence counsel argued that the case boils down to the W.(D.) instruction. His primary argument was that JM’s evidence was not reliable. With respect to her credibility, defence counsel stated that JM “didn’t seem to have an axe to grind”.
312Defence counsel argued that JM had significant difficulty with evidence in relation to the time periods when the allegations took place and she was “all over the map” with respect to this. At the end of the day, she did not really know what the time-line for the various allegations were. He pointed out that although she is entitled to “some leeway” given her age and the passage of time, it was concerning that she was careless with respect to her answers of when she recalled some incidents taking place.
313Defence counsel argued that there was some assistance from the accused’s evidence and AR’s evidence with respect to when things took place.
314Defence counsel pointed to the inconsistencies between JM’s evidence in her statement to police and her evidence in Court was the most significant difficulty.
315He pointed out that with respect to the alleged incident where JS grabbed her breast, she told the Court that it was warm out and she was wearing a t-shirt. In her police statement, on the other hand, she said it was colder and she was wearing winter garb. Her discussion in the police statement about removing a tag from her clothing was not discussed at all in her evidence. Her evidence in relation to whether the accused cupped her breasts or gestured that he was cupping her breasts was also “wildly different” from her version to the police to what she said in Court. There was no explanation for the contradiction.
316Defence counsel pointed out that her evidence about the incident where JS told JM to remove her clothing in order to apologize for the accidental touching was also inconsistent with her police statement where she told the officer that she had to remove her clothing as penance for not returning his text messages.
317With respect to the incident where it was alleged that JS touched JM’s hip, thigh and lower abdomen, defence counsel pointed out that JM testified in Court that she was wearing jogging pants. In her police statement, she said she was wearing underwear and there was a blanket. She also told the officer that she pretended to go the bathroom as a ruse to leave JS’s area of the house. In Court, she stated that she sat up and told him that her back was sore.
318With respect to the kiss incident, defence counsel pointed out that JM acknowledged that this is something that could have happened in a playful or joking manner. This is also something that happened regularly in the family.
319Defence counsel argued that I should have a doubt on the basis that the accused is alleged to have committed risky, brazen acts in an environment where JM’s mother was “right upstairs” and there was no sound barrier between the two floors and it was possible to hear regular conversation.
320Defence counsel argued that evidence concerning JM’s demeanour should not be entitled to much weight given that there were other explanations for her demeanour. In particular, he referred to the evidence of everyone who testified to the effect that the environment was tense and stressful.
321Defence counsel stated that there is no evidence that the accused was confronted by anyone at either the meeting on the Adirondack chairs or the round-table. The closest thing to an admission is SS’s evidence that when he arrived home from work, he picked JS up at the main road and JS told him that he was evil and a monster. This, argued defence counsel is not evidence of guilt. It is evidence that JS is a recovering addict who had relapsed or was considering relapsing as JS testified he was.
322With respect to JS’s evidence, defence counsel maintained that he testified in a straight-forward manner and acknowledged reasonable suggestions such as the touching being accidental. He was, defence counsel argued, unshaken in cross-examination.
Crown Submissions
323Crown counsel argued that lack of clarity with respect to time or the sequence of events is explained by JM’s youth at the time of the allegations.
324Crown counsel argued that JM’s inconsistencies with respect to what time of year it was are explained by the fact that she was relying on whether the woodstove was on or off to help her frame the time.
325Crown counsel maintained that JM’s inconsistencies with respect to what she was wearing, whether she was upstairs or down, whether she went to the bathroom or did not are all explained by the fact that she was quite equivocal in her evidence in-chief to begin with. In other words, the Crown argued that she wasn’t sure about some of these details in the first place which lessens the impact of the inconsistency when it is later brought to her attention in cross-examination.
326With respect to the inconsistency of the reason for the incident where JM alleged that JS asked her to remove her clothes (whether it was for touching him during hide and seek or for not returning her text messages), the Crown attempted to explain this by stating that this incident arose after JS texted her to come down to the basement.
327With respect to her general evidence regarding the timing of the kissing incident, Crown counsel stated that JM’s evidence is consistent with the evidence of AR, SS and JS about the timing of JS being told to leave the residence.
328Crown counsel argued that JS’s evidence was incongruent with the combination of JM’s and AR’s evidence with respect to JM frequently leaving the basement to go up to be with her mother.
329The Crown did not offer any other argument with respect to why I should reject JS’s evidence and accept JM’s.
Analysis
The Issue of Recent Fabrication
330Before calling the evidence of AR and SS, the Crown indicated that in the absence of the defence raising recent fabrication, it was raising AR’s evidence concerning the disclosure of the incidents as part of the narrative to explain how JM’s disclosures came out and to explain the ultimate report to the police.
331At that time, defence counsel agreed that he was not relying on recent fabrication. He stated that JS’s defence was based on a denial or the defence of accident.
332Later in submissions, however, when addressing JM’s credibility, he submitted that JM did not “seem to have an axe to grind.” He stated that, “There is no apparent motive to fabricate.”, but added, “Just because there is no evidence of one [a motive to fabricate] does not mean that there is not a motive to fabricate or the witness was not being truthful.”
333Does this mean that defence has raised a motive to fabricate?
334Much ink has been spilled in appellate decisions on the issue of motive to fabricate. The law is clear that there is a significant difference between a proven absence of a motive to fabricate and lack of evidence of a motive to fabricate. Where a Court finds that the Crown has actually proven that there is no motive to fabricate, “the Crown has a powerful platform to assert that the complainant must be telling the truth”: R. v. Bartholomew 2019 ONCA 377 at paragraph 21.
335However, proving that there is no motive to fabricate is elusive, difficult and may well be impossible. If it is not impossible, it is exceptional. This is because, as Justice Trotter stated in Bartholomew, supra, at paragraph 22, “People may accuse others of committing a crime for reasons that may never be known, or for no reason at all”.
336For this reason, the focus often falls to the issue of whether there is an absence of evidence of motive to fabricate. When this happens, there is a fork in the road.
337Where the defence does not assert evidence of a motive to fabricate, but the Crown conflates lack of evidence of motive to fabricate with a proven absence of motive to fabricate, a trial court will be in error if it gives effect to the Crown’s submissions: R. v. S.S.S. 2021 ONCA 552.
338Where, however, defence asserts evidence of motive to fabricate, “a trial judge is obliged to consider it to give full effect to the presumption of innocence, and a failure to do so constitutes reversible error”: R. v. Kruk 2024 SCC 7 at paragraph 65 (italics Justice Martin’s).
339In this situation, if the trial judge concludes that there is an absence of evidence motive to fabricate, this may be considered by the trial judge with respect to the credibility of the complainant: R. v. S.S.S., supra ,at paragraph 34.
340As Justice Moldaver stated in R. v. Gerrard 2022 SCC 13 at paragraph 4:
Lack of evidence of a complainant’s motive to lie may be relevant in assessing credibility, particularly where the suggestion is raised by the defence (R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 10‑11; R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, at paras. 38 and 52). Absence of evidence of motive to lie, or the existence of evidence disproving a particular motive to lie, is a common sense factor that suggests a witness may be more truthful because they do not have a reason to lie. That said, when considering this factor, trial judges must be alive to two risks: (1) the absence of evidence that a complainant has a motive to lie (i.e. there is no evidence either way) cannot be equated with evidence disproving a particular motive to lie (i.e. evidence establishing that the motive does not exist), as the latter requires evidence and is therefore a stronger indication of credibility — neither is conclusive in a credibility analysis; and (2) the burden of proof cannot be reversed by requiring the accused to demonstrate that the complainant has a motive to lie or explain why a complainant has made the allegations (R. v. Swain, 2021 BCCA 207, 406 C.C.C. (3d) 39, at paras. 31‑33).
341In this case, defence counsel did not assert any evidence of motive to fabricate. His submissions supported this. All he did was remind the Court of the importance of not conflating the absence of evidence of motive to fabricate with proof that there is no motive to fabricate. If defence counsel had raised any evidence of motive to fabricate, Kruk mandates me to consider it.
342In this case, I find that he has not raised evidence and therefore I do not consider it further.
“Motive to Fabricate” and “Recent Fabrication”
343There is one other consequence of the finding that motive to fabricate and recent fabrication has not been raised: its impact on the admissibility of JM’s prior consistent statements to AR and SS.
344It is well established that in order to rebut an allegation of recent fabrication, the Crown may lead prior consistent statements made by the complainant in evidence.
345Because defence counsel indicated early on that it was not alleging recent fabrication, the Crown indicated prior to introducing this evidence that it was doing so for the narrative, to explain how the allegations arose, and to explain some of the delay between the allegations and the reporting of the allegations to the authorities.
346These are permissible, but limited uses of this evidence.
Child Witnesses and Adults Who Testify About Events When they are Children
347I must take great care in assessing the evidence of JM, who was an adult who was testifying about events that took place when she was a teenager. In R. v. W.R. (1992), 1992 CanLII 56 (SCC), 74 CCC (3d) 134 at page 144, Justice McLachlin (as she then was) 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. [Emphasis mine]
348This principle has been part of our law for over thirty years.
349This principle is particularly germane to the evidence of JM, who was, frankly, all over the map with respect to the time frame when events took place and the sequence of the events themselves.
The Impact of Late Disclosure
350Late 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., 2000 SCC 43 at paragraph 65, 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.
351I therefore take nothing from the delay between the date of the allegations that JM complained of and the date of her report to the police.
Assessment
352This case involves the assessment of reliability and credibility and the application of the principles in R. v. W.(D.).
353JS is at all times presumed innocent until such time as the Crown proves his guilt beyond a reasonable doubt.
354The 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 JS. 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.
355In R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, 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.
356In R. v. Kruk 2024 SCC 7, at paragraphs 59 through 62, the Supreme Court of Canada affirmed W.(D.) and had this to say about the linkage between the presumption of innocence, proof beyond a reasonable doubt and a trial judge’s task in assessing credibility:
The overarching principle of the presumption of innocence, enshrined in s. 11(d) of the Charter, and the correlative principle of the Crown’s burden of proof, must always govern the fact-finding process. The presumption of innocence — a “hallowed principle lying at the very heart of criminal law” (R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, at p. 119) — requires the Crown to bear the onus of proving all essential elements of the offence charged, beyond a reasonable doubt, before a conviction may be entered (Osolin). Closely related to the presumption of innocence is the accused’s right to silence as enshrined in s. 11(c) of the Charter, which safeguards human dignity and privacy against processes or reasoning that would compel an accused person to incriminate themselves with their own words (R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, at paras. 69-78).
Various protections relating to the assessment and weighing of evidence flow from the presumption of innocence and the right to silence. Notably, an accused’s silence at trial may not be treated as evidence of guilt, as such reasoning would violate both principles (Noble, at para. 72). Likewise, it is improper to discount the credibility of accused persons on the basis that, because they face criminal penalties, they will say anything to protect themselves. Though considering the possibility that the accused may have a motive to lie will not necessarily offend this rule, courts should be wary of going further and drawing the “impermissible assumption” that they will do so in all cases (R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at para. 14). Such reasoning is premised on a supposition of guilt and therefore offends the presumption of innocence (para. 12).
The presumption of innocence also restricts how credibility is assessed in cases of conflicting testimony between defence and Crown witnesses. The analysis of testimony must never be treated as a contest of credibility, and triers of fact need not accept the defence’s evidence or version of events in order to acquit (R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 23; R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at p. 757). The burden never shifts to the accused to establish their own innocence, and the onus always lies with the Crown to prove every essential element (R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13).
Reasonable doubt applies to credibility assessments such that if the evidence the Crown adduced does not rise to the level required of a criminal conviction, an accused cannot be found guilty simply because they are disbelieved (see W. (D.)). Some elements of the totality of the evidence may give rise to a reasonable doubt, even where much — or all — of the accused’s evidence is disbelieved. Any aspect of the accepted evidence, or the absence of evidence, may ground a reasonable doubt. Moreover, where the trier of fact does not know whether to believe the accused’s testimony, or does not know who to believe, the accused is entitled to an acquittal (J.H.S., at paras. 9-13; R. v. H. (C.W.) (1991), 1991 CanLII 3956 (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.); R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at p. 533; R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, at para. 19). Finally, where the Crown relies on circumstantial evidence to establish guilt, the trier of fact may only convict if guilt is the only reasonable inference from the evidence (R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30).
357The law is clear that 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.
358In considering reliability and credibility, the Supreme Court has also recently made it clear that, so long as a trial court does not engage in prohibited reasoning based on myths and stereotypes, it is not only permissible, but a trial judge is expected and required to rely on common sense and experience in determining issues of credibility and reliability: R. v. Kruk, supra, at paragraphs 72 and 73.
359Kruk also confirms the distinction between credibility and reliability. A witness who is credible, is not necessarily reliable. A witness may be sincere and credible, but their evidence may also demonstrate that their recollections are not reliable. Not every inconsistency, however, gives rise to the conclusion that a witness is unreliable. Some inconsistencies are important; others 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: R. v. Stewart 1994 CanLII 7208 (ON CA), [1994] OJ 811 (Ont. C.A.) at paragraph 27.
360This, of course, must also be tempered by what I have said above with respect to the importance of inconsistencies in the evidence of children and the evidence of adults who are testifying about events that occurred when they are children.
Findings with respect to the Invitation to Sexual Touching Charge
361Count 3 on the Information alleges the offence commonly known as Invitation to Sexual Touching.
362One of the elements of this offence is proof beyond a reasonable doubt that the complainant was under the age of 16 years.
363JM’s birthday is March 24, 2001. In order to find JS guilty of these offences, among other things, I would have to be satisfied beyond a reasonable doubt that they took place before March 24, 2017.
364I am not so satisfied. JM’s evidence is unclear as to when the incidents that she complained of took place. AR and SS do not assist. AR testified that JS came to live with the family in 2017 (which she recalled because it was the year of the flooding) and she testified that JM’s first disclosure happened at around Easter-time.
365Easter in 2017 was the weekend of April 17, which was after JM’s 16th birthday on March 24.
366SS testified that JS came to live with the family after Christmas in 2017 and stayed with them until September. SS’s memory with respect to dates is also problematic; he testified that the stroke that he suffered has affected his memory.
367I find that although it is possible that the Adirondack Chairs discussion took place prior to March 24, 2017, it is unlikely given the normal weather in the Valley in March.
368I am therefore unable to conclude beyond a reasonable doubt that JM was under the age of 16 when the incidents took place and JS will be acquitted on this charge.
Do I believe the accused?
369No.
370While defence counsel characterized JS’s evidence as a “denial”, that is not an entirely accurate description of what he said. Many of JS’s denials are first couched as incidents that he did not remember or recall ever taking place. Only when counsel asked the follow-up question, “Did that happen”, did JS actually answer “no.” Sometimes he would elaborate that any touching, if it occurred, must have been an accident.
371There is a significant difference between “I don’t remember” and “It didn’t happen.” “I don’t remember” is a neutral statement. It allows for the possibility that the incidents complained of happened as the complainant described and the accused simply does not remember them happening. It is much different from a complete denial.
372I also do not know what to make of the “I don’t remember this happening and if it did it was an accident” evidence (here I am paraphrasing what was said). Either the accused remembers something taking place and he remembers that the touching complained of was inadvertent, momentary or accidental (or not for a sexual purpose), or he does not remember. To suggest an alternative of accident is, as a matter of common sense, inconsistent with an initial answer of not remembering something happening in the first place.
373In order to assess this evidence more fully, it is useful to summarize the accused’s evidence with respect to each of the incidents complained of.
374The Choking Incident: JS did not recall the argument about whether the video game they were playing was “gay” or JM’s statement that she said JS was “gay”. He denied choking her or placing his hands on her. Later in cross-examination, he did recall that she called him “gay” or a “fag”, but still disagreed that he ever choked her. There is an inconsistency here that keeps me from believing his evidence about this incident.
375The Touching on the Bed Incident: JS denied ever touching JM’s hip, thigh, or vaginal area. He stated that it is possible he accidentally touched her hip but he denied ever touching her thigh or vaginal area.
376The Hide and Seek in the Dark Incident: In chief, JS allowed for one occasion where JM touched his hip during a game of hide and seek in the dark. He said that he did not want things to go further so he stopped the game. At another point in his evidence, he described JM accidentally brushing up against him when he was hiding near the shelves. In cross, he stated that she may have touched his leg or thigh. He also said that he did not recall any inappropriate touching. As I have said, he either remembers it or he does not. I cannot believe his account of this incident.
377The Stripping Incident: In chief, JS denied this completely. In cross, the Crown asked him if there was ever a time that JM removed her pants. His answer was “not that I can recall or recollect”. When the Crown suggested that this is something he should be able to remember and asked, “You don’t remember or it didn’t happen?”, then and only then did he say, “It didn’t happen”. He either remembers it happening or he does not. I cannot believe his account of this incident.
378The Kissing Incident: When asked about this, JS stated that he did not recall. Only after counsel asked, “Did that occur?” did JS state “no”. He also initially could not recall whether there was a game in the family where the recipient of an intended kiss one turns their head at the last minute transforming a kiss on the cheek to a kiss on the lips, but then he recalled seeing SS and JZS do this in Ottawa. This is rife with inconsistency. Either he recalled it happening and he did not do it for a sexual purpose (because he had seen others in the family do it in gest), or it could have happened and he did not recall, or it simply did not happen. His answer suggests all three possibilities. I believe none of it.
379The Breast Touching Incident: When asked about this, JS stated “not to my awareness. I don’t remember ever doing that.” He said that it is possible that the touching could have happened “by accident” and if it did happen, it was not deliberate. This is inconsistent. Either he didn’t remember that it happened, or it happened and it was an accident or it did not happen at all. I cannot believe his account of this.
380The Trying to Go Downstairs Incident: JS again stated that it was possible that he accidentally touched JM’s hip. He denied touching her thigh or vaginal area. He specifically denied putting his hand under her underwear. Given my difficulties with other parts of his evidence, I do not believe him.
381The Penis Incident: JS completely denied that this incident happened. Given my difficulties with other parts of his evidence, I do not believe him.
382JS’s explanation for meeting SS at the main road also rings hollow and I do not believe it. This strikes me as an over-the-top response to the fact that he felt was afraid that he was going to relapse, which on the evidence was a constant fear, not just on this particular day.
383His explanation for being home on the day that he met his father at the main road also evolved as he gave his evidence. When asked about this he gave various explanations. He didn’t have to go into the job program. He didn’t have to go to work. He decided to stay home to sleep in and take some time for himself. I do not believe him.
Even Though I Do Not Believe the Accused, Does His Evidence Leave me in Doubt?
384For the reasons that I set out above, I am not left in doubt by his evidence pertaining to the following incidents:
a) The Choking Incident;
b) The Hide and Seek Incident;
c) The Stripping Incident;
d) The Kissing Incident;
e) The Touching of the Breast Incident.
385Even though I do not believe JS, I am left in doubt with respect to the following incidents:
a) The Touching on the Bed Incident;
b) The Trying to Go Downstairs incident; and
c) The Penis Incident.
386I am left in doubt with respect to the Touching on the Bed Incident because JS allowed for the possibility that he could have touched her hip but completely denied touching her vaginal or thigh area. His denials with respect to touching anything other than her hip in this incident, and his complete denials with respect to the Trying to Go Downstairs Incident and the Penis Incident were completely unshaken.
387For reasons I will set out below when I assess the balance of the evidence, I cannot find that I can reject the denials in relation to these incidents based on a considered and reasoned acceptance of JM’s evidence.
On the Basis of the Evidence I do Accept Am I Satisfied Beyond a Reasonable Doubt as to the Guilt of JS?
The Choking Incident
388I believe that JM’s evidence with respect to this incident is credible and reliable.
389Although her evidence with respect to the time of year that this occurred is not clear (she explained it by reference to the woodstove being on and warm which makes it clear that it could have happened in the fall, winter or spring), this is a peripheral detail and I find that her recollection of the events surrounding this incident was straight-forward and unshaken.
390Likewise, her evidence in cross-examination that she could not remember the exact game that they were playing, how long they were playing the game before the incident took place, whether the incident took place after school, and whether JZM or her mother were home are also peripheral details.
391Her evidence with respect to the choking itself was very detailed. She recalled that this came out of the blue after she called JS “gay” for a similar comment he made with respect to the game. Her recollection that she could barely breathe; she felt like she was breathing through a straw and she could not talk but had to mouth the words “I’m sorry” to JS are compelling details.
392Her decision not to tell her mother right away because she felt that she provoked JS by the “gay” comment also makes sense.
393As discussed above, I do not believe the evidence of JS with respect to this incident and his evidence does not leave me in doubt. In addition to my reasons for rejecting his evidence, set out above, my considered and reasoned acceptance of JM’s evidence leads me to reject JS’s evidence with respect to this incident.
394The elements of the charge of Assault are made out and JS will be found guilty with respect to Count 4.
The Touching on the Bed Incident
395As discussed above, I do not believe the evidence of JS in relation to this incident. I found, however, on the second branch of the W.(D.) inquiry that I could not reject his evidence.
396I cannot find otherwise on the basis of a considered and reasoned acceptance of JM’s account either.
397Although I believe that JM’s account of what took place in this incident is credible, I do not believe that I can safely rely on her evidence.
398Ordinarily, exactly what a child complainant is wearing when a sexual assault occurs is a “peripheral detail” that does not give rise to reasonable doubt.
399This case, however, is different. Let me explain.
400In this case, the complainant’s evidence in chief was that she was wearing jogging pants. She also did not mention being under or anywhere near a blanket. In cross-examination, however, it was clear that this was inconsistent with her previous statement where she told the police that when this incident occurred, she was under a blanket and she was wearing underwear or “granny panties”. She offered no explanation for the inconsistency.
401This is not the case of a young child who cannot remember if they were wearing shorts or long pants or whether the pants they were wearing had stripes or polka dots or some other peripheral detail that has little to do with the core allegations.
402Here the complainant is 16 when the incident took place. On the spectrum of adults testifying about incidents when they are children, she is much closer to being an adult than a child. In my view, the presence or absence of a blanket covering her and the fact that she was wearing jogging pants and not underwear (granny pants) is much more material given her age when the allegations arose. This is something that a reliable witness her age should have been able to be consistent about.
403JM was also inconsistent with respect to the issue of leaving the basement area and going upstairs. In her statement to the police she stated that she went upstairs and pretended to use the bathroom as part of her ruse to get away from JS, to allow some time to pass so that her mother would wake up and to avoid the possibility that he would think she was going to tell her mother.
404In Court she said that she told JS that she wanted to go upstairs because she thought her mother was home.
405This inconsistency was also not explained.
406Again, giving JM some allowance for not remembering “peripheral details” because of her youth, this inconsistency is hard to understand. The plan that she told the police about was very detailed and it was congruent with the rest of her evidence and the evidence that AR gave about how easy it was to hear things between the floors of the house. This is something that a reliable witness should have been able to give consistent evidence about.
407This incident is not proven beyond a reasonable doubt.
The Hide and Seek in the Dark Incident
408I find JM’s evidence with respect to this incident was credible and reliable. She was unshaken in cross-examination. I find beyond a reasonable doubt that this incident happened.
409There is, however, no offence here because JM touched JS during the course of a game. JS did not sexually assault or assault JM. On her evidence, the touching was accidental – on JM’s part.
410In the event that I am incorrect about my earlier finding that the age of JM was not proven by the Crown beyond a reasonable doubt, I am not satisfied that the elements of Invitation to Sexual Touching are made out here either.
411Section 152 of the Criminal Code makes it an offence to invite, counsel or incite a person under the age of 16 years to touch someone else or themselves. The purpose of the inviting, counselling or inciting must be a sexual purpose.
412In this case, the hide and seek in the dark game was JM’s idea because she had played it before with others. There is no evidence that by agreeing to play the game, JS invited, counselled or incited JM to touch him. Nor is there evidence of a sexual purpose.
413This incident does not disclose an offence.
The Stripping Incident
414I find JM’s evidence with respect to this incident credible and reliable. Her evidence with respect to what happened is detailed and compelling.
415In my view the inconsistency with respect to whether she went to see JS because she wanted to show forgiveness for touching him during the hide and seek in the dark incident (which was her initial evidence in Court) and the version she gave the police – that is that she wanted to show forgiveness for not texting him while she was at school – is a peripheral detail and has nothing to do with the core allegations about which she was unshaken.
416Elsewhere I have set out my reasons for rejecting JS’s evidence with respect to this incident on the basis that I do not believe it and it does not leave me in doubt. I also reject his evidence based on my considered and reasoned acceptance of the evidence of JM.
417I find beyond a reasonable doubt that this incident occurred as JM described it.
Is the Stripping Incident a Sexual Assault?
418This incident is highly disturbing, coercive, demeaning and despicable.
419But is it a sexual assault?
420In most cases, determining whether an incident constitutes a sexual assault is more straight-forward than what I am presented here. Justice Moldaver described the elements of sexual assault in this way in R. v. Barton 2019 SCC 33 at paragraph 87:
A conviction for sexual assault, like any other true crime, requires that the Crown prove beyond a reasonable doubt that the accused committed the actus reus and had the necessary mens rea. A person commits the actus reus of sexual assault “if he touches another person in a sexual way without her consent” (R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 23). The mens rea consists of the “intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched” (R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 42).
421In R. v., Ewanchuk, 1999 CanLII 711, Justice Major stated at paragraphs 23-25 that,
A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched.
(1) Actus Reus
The crime of sexual assault is only indirectly defined in the Criminal Code, R.S.C., 1985, c. C-46. The offence is comprised of an assault within any one of the definitions in s. 265(1) of the Code, which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated: see R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909. Section 265 provides that:
- (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused’s actions were voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour: see R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333, and R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293. First, the court looks to the definition of “assault” in section 265 of the Criminal Code applicable to sexual assault. and determines whether the accused touched the complainant without her consent, threatened to touch the complainant without her consent, or accosts or impedes the complainant without her consent while carrying a weapon.
422On this definition, the offence would seem to be not made out here.
423There is, in my view, no doubt that the act of instructing JM to take her clothes off was done for a sexual purpose. There is no other conclusion which can be drawn by this conduct other than JS insisted on it for his own sexual gratification.
424There is, however, no application of force by JS to JM directly or indirectly. For example, there is no evidence that JS assisted JM in removing her clothes or touched her at any point during this incident. It that was present, there would be no doubt that this was a sexual assault.
425Arguably, there is no threat to apply force either. When JM resisted after JS first proposed the stripping, and announced that she was going upstairs to wait for AR to get home, JS threatened that he would tell SS that she “started everything”. There is no doubt that this is a threat that was intended to overcome JM’s decision to have no part of what was going on and coerce JM to do as JS wanted or he would embarrass JM or get her in trouble with her parents. It is not, per se, a threat to touch JM.
426He also told her that she “better” show him that she was sorry. JM was not asked how she interpreted this comment.
427The offence of sexual assault was created in the 1980s by Parliament.
428Parliament did not, however, specifically define what “sexual assault” means. As in Barton and Ewanchuk, supra, in most cases, the factual underpinnings involve sexual touching and the issue at trial is whether the sexual touching happened, or whether it was consensual. Many recent cases focus on the importance of deciding issues of credibility and reliability and consent without reference to stereotypical or mythological assumptions with respect to the behaviour of victims of sexual assault.
429But what about a case where there is no touching or threat of touching? What about a case which involves, as is the case here, highly disturbing, coercive, demeaning and despicable conduct of a sexual nature that does not involve touching or threat of touching? Can such conduct constitute sexual assault?
430Early interpretations of the crime, which have not been overruled by appellate courts, seem to allow for the possibility of a broader, more purposive approach.
431One of the earliest cases dealing with this issue was R. v. Cook 1985 CanLII 641 (BCCA). There, Lambert, J.A. (as he then was) stated at paragraph 44:
I do not propose to offer a definition, where Parliament has declined to do so. But I do not think that the characteristic that turns a simple assault into a sexual assault is solely a matter of anatomy. I think that a real affront to sexual integrity and sexual dignity may be sufficient. (Emphasis Mine)
432In R. v. Chase 1987 CanLII 23 (SCC), although Justice McIntyre first had recourse to the words defining assault in terms of touching or threat to touch in what is now section 265 of the Criminal Code, he left room for the possibility that the offence could capture other conduct. At paragraph 4 of his judgment, he added, “In my view, however sexual assault may be defined, its definition cannot be limited to the provisions of section. 244(1)(a) [now section 265(1)(a)].”
433Moreover, Justice McIntyre agreed with Justice Lambert’s conclusion in Cook and, at paragraph 11, offered this interpretation to the offence of sexual assault:
Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer" (Taylor, supra, per Laycraft C.J.A., at p. 269). The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant (see S. J. Usprich, "A New Crime in Old Battles: Definitional Problems with Sexual Assault" (1987), 29 Crim. L.Q. 200, at p. 204.) The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances. (Emphasis Mine)
434R. v. Nicolaou 2008 BCCA 300, involved a case were the accused, a drug dealer, ordered another woman to search the vagina of the complainant, a prostitute, to ensure that she had not stolen drugs from him. On appeal, the accused alleged that the trial judge erred in convicting him when he did not order the search of the complainant for sexual gratification. Justice Chiasson stated, relying, among others, on Chase and Cook, supra at paragraph 31:
There are a number of additional cases relevant to this issue. In my view, they support the following analytical framework in a case such as this:
a motive of sexual gratification is not essential;
the anatomy involved is relevant;
the exercise of power and control over the victim and his or her humiliation or subservience can engage his or her sexual integrity.
(Emphasis mine)
435In R. v. Edgar 2016 ONCA 120, the accused accosted the complainant and forced his way into her apartment by using a chokehold around her neck. He was in her apartment for about an hour. He permitted her to smoke and drink tea on the balcony. While she was doing so, he knocked on the balcony door, announced that he intended to go, but stated, “First I need you to come in and watch me masturbate.” He then proceeded to masturbate while the complainant sat on the couch watching. He did not expose himself. He did not touch her. He asked her when her husband was going to be home. She was afraid that he was going to rape her or kill her. She ran out of the apartment and jumped off the balcony, falling twelve feet.
436The issue was whether on these facts, the Crown had proven that the act of forcing the complainant to watch him masturbate was a sexual assault. The Court of Appeal said that it was, stating at paragraphs 10 to 17:
To commit a sexual assault, it was not necessary for the appellant to touch or even verbally threaten the complainant. A person’s act or gesture, without words, force or any physical contact, can constitute a threat to apply force of a sexual nature, if it intentionally creates in another person an apprehension of imminent harm or offensive contact that affronts the person’s sexual integrity. Coupled with a present ability to carry out the threat, this can amount to a sexual assault. See Criminal Code, R.S.C. 1985, c. C-46, ss. 265(1)(b) and (2); R. v. Cadden (1989), 1989 CanLII 2847 (BC CA), 48 C.C.C. (3d) 122 (B.C.C.A.); and R. v. Johnson, 2006 CanLII 37519 (Ont. S.C.).
Defence counsel argues that Cadden and Johnson are distinguishable in that the offences in those cases involved overt acts combined with verbal demands made of the victims, which are absent in the present case: in Cadden, a teacher motioned to young children to come under his desk and then told them to fellate or touch his penis; in Johnson, the offender exposed his penis and, while holding a gun, ordered his victim to fellate him.
I would not give Cadden and Johnson this narrow interpretation.
What elevates the appellant’s act of masturbation from an indecent act to a sexual assault are the surrounding circumstances of sexualized violence, control, and confinement that the appellant created, and to which he deliberately subjected the complainant. Those are the same kind of circumstances that led the courts in Cadden and Johnson to hold that the offenders’ actions constituted sexual assaults: see Cadden, at p. 128; and Johnson, at para. 152.
On the undisputed facts of this case, the appellant was a violent intruder who forcibly confined the complainant to the restricted space of her apartment. Over 6 feet tall and about 300 pounds, the appellant easily overpowered the complainant to force entry into her apartment. His appearance and movements were highly erratic and volatile. For about an hour, he controlled and dictated the complainant’s movements within her own apartment, physically blocking her exit.
Finally, the appellant commanded the complainant to enter into an agreement with him before he would leave her apartment, which included, but was not necessarily limited to, her watching him commit a sexual act in close proximity. The already terrifying atmosphere produced by the appellant was intensified by his asking her when her husband would be home. The complainant was so fearful of being immediately raped or killed that she risked very serious injury by diving over the railing of her apartment balcony to escape from the appellant.
It must be remembered that sexual assault is an act of power, aggression and control, and that a threat to invade the bodily or sexual integrity of another person or to otherwise apply force is itself a hostile act: Cadden, at p. 128. The appellant intentionally terrorized the complainant for a prolonged period, in violent and sexualized circumstances, causing her to reasonably believe that he had the present ability to rape or kill her.
Viewed in the context of the entire circumstances, the appellant’s acts constituted a threat of sexual assault. [Emphasis mine].
437While the facts of this case do not rise to the same level of violence as in Edgar, or Nicolaou, in my view, the same considerations apply. The whole point of the exercise was to exploit the sexuality of JM, affront her sexual integrity and dignity, sexually humiliate her and demonstrate to her that she was sexually subservient to him.
438JM was much younger, smaller and vulnerable. When this incident took place, she was home with JS alone. Requiring her to take her clothes off while he watched in order to demonstrate to him that she was sorry for an earlier act where she accidentally touched him in the course of a game is obviously an act of power, aggression and control.
439JM testified that the exposure of her vaginal area was very brief. She then ran upstairs and cried. She tried to call her boyfriend but she couldn’t stop crying. When the Crown asked her how she felt, she said she was disgusted. In my view, this more than amply demonstrates the fact that JM was sexually humiliated.
440What of JM’s consent?
441Elsewhere in these reasons, I conclude that I am not satisfied beyond a reasonable doubt, as to the age of JM when this incident occurred. Because JM could have been 16 years of age or more, pursuant to section 150.1, she could have consented to this activity.
442Pursuant to section 273(2)(c) of the Criminal Code, consent is vitiated when it is established that the accused induced the complainant to engage in the activity by abusing a position of trust, power or authority. Here the parties were step-siblings. JS was considerably older. As I indicated, JM was smaller and vulnerable. She was trying to establish a relationship with JS, which she believed was something that her father expected her to work on.
443In my view, as her older step-brother, JS was in a position of trust over JM and he took advantage of the “personal feelings and confidence engendered by that relationship” (R. v. Litoslawski 2010 ONCA 207 at paragraph 12, cited with approval in R. v. Snelgrove 2019 SCC 16 at paragraph 3) to secure her consent to remove her pants and bend over in front of him. When JM announced that what JS was asking her to do was inappropriate between siblings and that she was going upstairs, JS immediately surmised that she was going to tell AR and he threatened to tell SS “that she started everything” if she did not comply with his demand. This clearly constitutes coercion and demonstrates abuse of JS’s position of trust, power and authority over JM It vitiates any consent.
444In my view, on the unusual facts of this case, the facts here constitute a sexual assault in the sense that sexual assault is not limited to elements found in section 265 and can include other acts, committed without consent, which, viewed objectively, constitute a real and meaningful violation or interference with the sexual dignity or integrity of the complainant.
445JS will be found guilty of sexual assault.
The Kissing Incident
446I believe that this incident took place as JM described. She, however, allowed in cross-examination, that this could have been done “as a joke” and this is something that she had seen her father and mother do.
447The exact nature of the kiss was not led in evidence.
448When it comes to kissing, there is a spectrum of conduct. A short kiss on the cheek, or forehead, such as how a parent will kiss a child, or such as how some members of some ethnic groups greet others as a matter of custom, are not overtly sexual.
449Other longer, more invasive kisses on the mouth or with respect to other parts of the body, are overtly sexual, and if not performed with communicated consent, will constitute a sexual assault.
450This incident was a situation where JM agreed to kiss JS on the cheek (again in order to demonstrate that she was sorry for the hide and seek fiasco) and he suddenly turned his head so that the kiss on the cheek became a kiss on the mouth which he reciprocated.
451As JM described it, the kiss was of short duration.
452She was, however, completely caught by surprise by it and she was obviously offended by it. She immediately ran upstairs to wipe her mouth. It is also the event that precipitated her disclosures to AR. The words she attributed to JS (“Why don’t you want my love? I am your brother”) are odd.
453This case is very close.
In the absence of specific evidence with respect to how invasive the kiss was in terms of time and the nature of the kiss in terms of contact, which would push this kiss closer to the overtly sexual end of the kissing spectrum, and given JM’s evidence that there is a history of this behaviour in her family and it could have been a joke, I am not satisfied that this incident constitutes a sexual assault.
The Breast Touching Incident
454Although I reject the evidence of the accused in relation to this incident, I am not able to conclude beyond a reasonable doubt that this incident took place on the evidence of the complainant.
455Once again, the problem is her reliability. Although I believe that this incident probably happened, I have a doubt and JS is entitled to that doubt.
456When JM gave her statement to police, she indicated that this incident took place in the context of having a tag on her shirt that was interfering with her skin. She said that JS was assisting her in the removal of the tag and took advantage of that situation for the purpose of touching her breast.
457When she gave her evidence in-chief, however, she did not mention the tag. This is so, despite the fact that she was given an opportunity to describe what she was wearing.
458In my view, this was not a peripheral detail. As with the other incident where she alleged touching of her vagina and the issue was whether she was covered in a blanket and wearing underwear or wearing jogging pants, when this incident was discussed with the police, the annoying tag was part of the core allegations. In my view, it was not something a reliable witness would have forgotten.
459Consequently, I am unable to conclude beyond a reasonable doubt that this incident occurred as JM described.
460Before leaving this area, I will indicate that I do not believe that the issue of whether JS made a cupping gesture with his hand, which is something she told the police but did not relate in Court, is material given her evidence that he made comments about the size of her breast.
461I also do not believe that the issue of whether or not she was wearing a hoodie (she told the police that she was wearing a hoodie; in Court she said she was wearing a t-shirt) is important or part of the core allegations in this case. The presence or absence of the hoodie is a peripheral detail. It does not rise to the same level of concern as the issue of the tag.
The Trying to Go Downstairs Incident
462JM did not remember this incident until the Crown gave her an opportunity to refresh her statement.
463This incident was also remarkably similar to the other incident of alleged touching which took place on the bed, and as I stated earlier, I cannot tell if JM was talking about the same incident or a different one.
464I have already concluded that I have a doubt based on JS’s unshaken denials. JM’s evidence with respect to this incident is not so strong that I can reject JS’s denials based on a considered and reasoned acceptance of her evidence.
The Penis Incident
465I find likewise with respect to this incident, which JM did not remember until the Crown refreshed her memory.
466This is an incident a reliable witness should have been able to remember without being prompted.
Summary
467For the above reasons, I find JS guilty of counts 2 and 4.
Released: April 15, 2024
Signed: Justice J.R. Richardson