R. v. T.B., 2024 ONCJ 370

WARNING

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

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the conse­quences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

( a ) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

( b ) is guilty of an offence punishable on summary conviction.

DATE: May 24, 2024 Information No.: 00092

YOUTH COURT (at Brampton, Ontario)

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

T.B.

Reasons for Judgment

Mr. R. Mullins, for the Crown Mr. S. White, for T.B.

An order has been made under s. 486.4 of the Criminal Code directing that any information that could identify the complainant, D.B., shall not be published in any document or broadcast or transmitted in any way.

Nadel J.:

Introduction

1T.B. is currently 29 years old. He was born on November 1, 1994 and is the younger identical twin to his brother N.B. T.B. is charged, by indictment, with one count each of sexual assault, sexual interference, and invitation to sexual touching.

2The three offences charged are said to have been committed during the same incident. The Crown alleges that he was left to baby-sit his niece, D.B., while her mother, S.B., went grocery shopping. S.B. is one of T.B.’s older sisters. ¹

3The date, indeed the timeframe, when these crimes are alleged to have occurred is uncertain. D.B. testified that these events happened when she was five or six years old. She was born on April 22, 2006 so the information was drafted to allege the offence date as having occurred between the 1st day of January, 2011 and the 31st day of December 2012.

4T.B. turned 18 on November 1, 2012. Hence, for two months of the charge period he was an adult.

D.B.’s Disclosure

5In March of 2021 during a conversation with her mother’s older sister, D.B. disclosed the incident that gave rise to this trial. As a result of that disclosure, D.B. was interviewed by a police officer on March 30, 2021. That interview was recorded. It became Exhibit 1, pursuant to s. 715.1 of the Criminal Code. A transcript of Exhibit 1 was filed as Exhibit A.

The Scope of the Evidence

6There were three witnesses called and, coincidently, three numbered exhibits filed.

7The witnesses were D.B., her mother, S.B. and the accused, T.B.

8The three numbered exhibits were:

Exhibit 1: the 715.1 police interview of D.B.; Exhibit 2: photographs of T.B. and his twin brother; ² and, Exhibit 3: the prior youth and adult criminal record of T.B.

The Evidence of D.B.

9D.B.’s police interview occurred on March 30, 2021 when she was still 14. She testified on January 2, 2024 when she was not quite 18.

10Her uninterrupted narrative as transcribed in Exhibit A was as follows:

Okay. So, it was at my apartment. Um, it was Rexwood Road. Um, I think it was Malton, but I don’t remember. I don’t know. Um, my mom like she called my uncle over to babysit us so she could go to the grocery store ‘cause she couldn’t leave me and my brother alone in the house -, I mean in the apartment. And, um, so he came for the first few minutes and then he went into my room and he brought me into my room and then he said I’ll give you a candy if you don’t tell anyone what we’re doing. And then I said okay. And then he said promise not to tell anyone, and then he locked my door. And then he pulled down his pants and he made me put his penis in my mouth -, in his mouth. I’m sorry, he made me put his penis in my mouth multiple times and he was recording it. And he had his phone is in han -, in his hand and he was recording it. I tried to get out multiple times, but he said, okay, then you won’t get your candy. And okay you won’t, you won’t get -, he ke -, he kept on saying it. Uh, my little brother was outside the door just knocking and asking when I was gonna come out and he kept saying, M.B., not now. Not now. And it happened a couple of times where I tried to get out but he wouldn’t let me out. And when I got out, he told me to brush my teeth and wash my face and don’t tell anyone and that he’ll give me a candy right after.

11In addition, D.B. said that T.B. rubbed her vagina at some point during these events.

12She believed that T.B. was filming what was happening because he had a cellphone in his hand while the events occurred; but she never actually saw that he was doing so. She could not recall how long it took, how many times he put his penis into her mouth or what each of them was wearing.

13However, she did describe herself as being on her knees when the fellatio occurred. In addition, she stated that T.B.’s pants were lowered to his ankles but that he did not step out of them.

14D.B. talked about T.B. “finishing” and seemed to imply ejaculation; however, she really didn’t know what ejaculation was when she was interviewed in March of 2021. Despite learning what that word meant before she testified, she was still unable to say whether or not T.B. ejaculated.

The Timeframe of the Allegations

15In attempting to locate these allegations in time, the best that D.B. could say was that she was five or six years old. When asked why she thought that was her age when these events happened D.B. said, “I just remember being very young but not that young enough to not remember.” She could not say what grade she was in.

16According to her, M.B., her younger brother, was ambulatory and verbalizing. He was born on June 2, 2009. The only other chronological signpost that D.B. could offer was that she believed the incidents happened during the summertime. However, she agreed that she really didn’t know the season or time of day that it happened.

17She agreed that it would be fair to say that she really was not sure of her age when these events occurred. She testified that the incident occurred in the summer because “it was daylight” and “sunny” and “hot”. She could not say what the day of the week was. She said that mother did not have a regular grocery shopping day; but “mostly” she and her brother would be taken by their mother on these shopping trips.

18While the events took a long time in her subjective estimation, she really could not say how long these actions took.

19She said that T.B. never did give her any candy.

Not Telling

20During her cross-examination she testified that T.B. only told her not to say anything to M.B. She also testified in cross-examination that he did not tell her not to say anything to anyone else. However, (as noted above at paragraph [10]), when D.B. narrated her recollections without interruption she described him as saying, “I’ll give you a candy if you don’t tell anyone what we’re doing. And then I said okay. And then he said promise not to tell anyone …”

21In cross-examination D.B. said that she did not tell her mother about what had occurred and could not think of any reason for not doing so.

Q. “… any reason why? A. I just … no.”

The Twins

22D.B. said that:

• T.B.’s twin brother never baby-sat her;
• that T.B. only minded her the one time when he abused her; and,
• that neither he nor his brother ever lived with her and her family.

23While she had met T.B. prior to him baby-sitting her, she had not met him frequently and only at family functions at her maternal grandmother’s home. She could not recall any particular occasion. She stated that she encountered T.B. at her grandmother’s home a time or two after these events.

Other Testimony from D.B.

24D.B. now has a second younger brother, E.

25Her maternal grandmother, Y.B., had many children. She had little grasp of the ages of her mother’s siblings.

26She did not know the ages of her various maternal aunts or uncles. Additionally, she could not recall the year in which she was interviewed by the police and guessed that it occurred in 2019 or 2020. She could not securely recall her age at the time of that interview, or the time of the year. Ultimately, she lit upon June as the month in which she spoke to the police. Finally, she was sure that she gave the statement to the police on a weekend.

27In fact, her interview took place on Tuesday, March 30, 2021. D.B. had similar difficulties about the date and timing of her disclosure to her aunt.

28Despite these frailties in her memory, she testified in cross-examination that she believed that she recalled giving that police interview better than the incident that she related in that interview.

S.B.

29S.B. was born on April 9, 1988. She is six years older than her brothers, N.B. and T.B. Despite knowing her own date of birth and the age difference between her and the twins, S.B. was unable to offer the twins’ year of birth.

30S.B. is the second in her sib-line. Her eldest sister is J.B., the aunt to whom D.B. made a disclosure in March of 2021.

31S.B. said that she and D.B. moved into a two-bedroom apartment, (Unit …), at […] Rexwood Drive in Mississauga on April 1, 2007, just before D.B. turned one. They lived there until 2015 when she moved, with her children, to Burlington.

32S.B. and D.B. had their own bedrooms. After M.B. was born on June 2, 2009, he slept in S.B.’s room. She was a single parent during 2011 and 2012.

33She did not know where her twin brothers lived during those two years and never visited them at their home during that period.

34She said that T.B. baby-sat for her once or twice. Her evidence varied from “one time or more than one time” to “maybe about one or two times.” During cross-examination, S.B. denied remembering that she testified that T.B. could have minded D.B. once or twice.

35She also testified in-chief that, while she may have asked T.B. to watch D.B. at her mother’s home while her mother was also home when D.B. was two or three, she only had T.B. mind D.B. and M.B. at Rexwood on one occasion by himself when D.B. may have been “four or fiveish”.

36She was unsure of how old T.B. would have been at that time, other than it was impossible for him to have been less than 12. ³

37In cross-examination she insisted that D.B. was five or six when T.B. babysat for her. She denied that she took that position because that was what D.B. told her.

S.B.’s Recounting of the Event

38T.B. came over to visit and she used his visit as an opportunity to shop for groceries. She testified, in-chief, that T.B. was in and out of jail a lot and his visit was of the pop-in variety, without any prior arrangement.

39In cross-examination S.B. maintained that this visit occurred without any prior notice; that he just showed up. Nonetheless, she could not recall if T.B. had given her a “heads up” about coming over and she could not recall if her mother had somehow been involved in arranging for T.B.’s visit.

40Mr. White suggested that she had no plan to go shopping before he visited. That would seem to follow but S.B. said, “I can’t really answer that question”.

41S.B. could not say how she got home from the grocery store and could not recall what it was that she bought there, other than milk and food.

42S.B. initially testified that she believed D.B. to have been four or five when this visit occurred, She subsequently testified that D.B. would have been five or six “according to the time of the incident.” The best that S.B. could say as to when this visit occurred was that “it wasn’t winter.” As she put it, “I can almost remember that it wasn’t winter; I was walking and had no car”.

43The grocery store was about a 15-minute walk away from her apartment. While this visit occurred during “daytime”, she could not otherwise recall the time of it, or the day or date, other than that it was a sunny day.

44Mr. White suggested to S.B. that she had no real memory of a particular occurrence that she was purporting to relate. He suggest that her shopping trips happened so many times that she could not distinguish one time from another. S.B. did not accept the suggestion.

45Mr. White’s cross-examination was designed to demonstrate that S.B. had no independent reason for believing that this grocery shopping incident occurred during the period when D.B. was five or six other than because that was what D.B. told her.

46Despite this defence suggestion S.B. said, “I do remember it now” and “something about the trip would have caused me to remember it”.

47When Mr. White challenged her about her earlier testimony that D.B. may have been four or five, she said that she was referencing a time when her brother looked after D.B. at their mother’s home while their mother was also there. This answer was inconsistent with her evidence in-chief.

48Nothing seemed unusual when she returned from her shopping trip. She recalled no conversation about how things went while she was gone.

49Prior to this complaint being made S.B. was unaware of any issues that had ever arisen between D.B. and T.B. D.B. would have occasion to see T.B. at family events that mostly occurred at her mother’s home.

50S.B. testified that she only saw T.B. a few times during the period of 2011 and 2012.

51S.B. was insistent that T.B. never visited her home on Rexwood Drive again after this visit. He had been to the Rexwood apartment previously and sporadically for short visits. These short visits were separated by six months to a year, but they never included sleeping over at the apartment. She could not recall any particular date when any of these previous visits had occurred.

52Despite testifying that the twins never slept over at her Rexwood apartment earlier in her testimony, she subsequently agreed that they had done so but not during the charge period of 2010 to 2012.

53They did so on occasion after she first moved into the Rexwood apartment in 2007 when D.B. was quite young. Still, she maintained that the twins never lived in her home.

54S.B. had “no beef” or “bad blood” with T.B., other than older-sister admonitions to him that he had to get his life together. She had no subsisting relationship with T.B.’s twin brother, N.B., and hadn’t spoken to him for about eight years.

55Her explanation for this rupture was not any incident but rather that they lived in different cities and their lives drifted apart due to her raising her children and working and going to college. ⁴

56S.B. was adamant that N.B. never baby-sat D.B. and equally, that neither of the twins ever lived with her and her family at the Rexwood apartment.

57S.B. rejected Mr. White’s suggestions that T.B. visited her Rexwood apartment regularly and that he also lived there with S.B. and her family for some periods of time. S.B. denied that T.B. ever stayed at her apartment in the summer of 2010 or 2011. She denied that he regularly watched her children for her when she went out with Ter. She denied that she and T.B. and Ter. would smoke marijuana together at the apartment.

58S.B. did agree with Mr. White’s suggestion that when she was a child D.B.’s favourite T.V. character was Dora the Explorer.

T.B.

59T.B. began his evidence by setting out his full-blood sib-line from his mother, Y.B. and his father, Ma.B. in the following order, oldest to youngest: S.B., Shan.B., R.B., Shak.B., N.B. and T.B.

60According to T.B., J.B. – the aunt to whom D.B. made her disclosure – is a half-sister to him. Aside from J.B., T.B. said that he had many other half-siblings who were not identified in his evidence.

61As where he lived, when he lived there and with whom he lived played a major part in his testimony, I shall detail that testimony in a somewhat compressed form.

62He lived with most of siblings at his parents’ home until 2005 when he was removed by the CAS after his mother physically abused him for sneaking out of the house. He was about 11 at the time.

63The CAS took custody of the children under 18 and placed them with their father. S.B. and Shan.B. were over 18 and they stayed with their mother.

64The children stayed with their father from 2005 until well into 2008 when their father got involved with drugs and abandoned his children for a week. This resulted in the CAS apprehending them again and they were returned to their mother’s custody.

65At that point their mother, Y.B., lived in a two-bedroom apartment on Weston Road near Lawrence Avenue. There were six people in that apartment, ⁵ which was too small for that number so “we ended up moving like two weeks later.” T.B. was “about” 14 when he was returned to his mother’s care.

66He testified that their mother would pay him and his brother, N.B., $50 each to clean S.B.’s apartment and that they would sleep over Fridays and Saturdays and watch D.B. for S.B.. ⁶ Shak.B. sometimes came too and was also paid for cleaning.

67Because the mother’s two-bedroom apartment was too small for the numbers living in it, the family moved to a building called the Palisades at Jane and Finch. T.B. started grade 9 there at [name removed] School but he had an unsuccessful year. He began smoking marijuana and as a result his mother kicked him out of her home about “February or January” (sic) of 2010.

68T.B. said that his mother had kicked his brother N.B. out three or four months beforehand and that N.B. was living in a shelter called Covenant House in downtown Toronto.

69In his direct examination T.B. testified that “when I got kicked out, I had like options where to go and one of my options was S.B.’s house … and I ended up going to her house for about three months.” T.B. said that S.B. had D.B. then, but he made no mention of M.B. having been born.

70He said that he stayed with S.B. for about three months after being ejected from his mother’s home in the early part of 2010. During this roughly three-month period he and S.B. got along “really good” until she kicked him out for breaching a curfew that she had set.

71When S.B. refused to let him back in T.B. said that he spent about a week sleeping in the stairwells of her apartment building until a superintendent told him that he had to stop doing so. At that point he went to live with his sister R.B. in her apartment on Humberline Drive for about two months.

72Despite having been ejected from S.B.’s home in the early part of 2010, T.B. said, (in answer to Mr. White’s question about how frequently he visited S.B. in 2011 and 2012), that he was living with S.B. in 2011 and 2012. He said that he lived with S.B. for three months the first time and for about one month the second time that he lived with her.

73In answer to Mr. White’s question about whether he “in fact kept cleaning the house and taking care of the kids during 2011/12 T.B. said:

A: 2011/12? No, I didn’t continue doing that. Like a little bit. I was getting incarcerated and stuff.

Q: When you were living there?

A: Ya, when I was living there.

Q: Can you remember how many different times you lived with her during that period?

A: After I was kicked out of my mom’s house I lived with S.B. twice. The first time for three months. The second time for about like maybe a month, I’m not sure for how long. ⁷

T.B.’s Criminal Record

74T.B. explained that he needed money, so he and his twin brother began robbing people for their cellphones. He said that he could sell a cellphone for $200 per phone. As a result of these offences and others, he spent the times noted in his youth and criminal record in detention.

75T.B.’s youth and adult criminal record were filed. I recapitulate it next.

2010-04-13 TORONTO ONT YOUTH JUSTICE COURT ROBBERY SEC 344 Criminal Code (1) TIME SERVED (77 DAYS) & PROBATION 2 YRS & MANDATORY SEC 51 (1) Youth Criminal Justice Act (2) UTTERING THREATS SEC 264.1 Criminal Code (3) FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) Criminal Code (2-3) PROBATION 2 YRS ON EACH CHG CONC & CONC

2010-08-12 TORONTO ONT YOUTH JUSTICE COURT ROBBERY SEC 344 Criminal Code PROBATION 2 YRS & MANDATORY PROHIBITION ORDER SEC 51(1) Youth Criminal Justice Act

2011-06-27 TORONTO ONT YOUTH JUSTICE COURT (1) ROBBERY SEC 344 Criminal Code (2) 2 CHGS) (2) FAIL TO COMPLY WITH DISPOSITION SEC 137 Youth Criminal Justice Act (2) CHGS (3) POSS OF A SCHEDULE II SUBSTANCE SEC 4(1) Controlled Drugs and Substances Act (4) FAIL TO COMPLY WITH RECOGNIZANCE SEC 145 (3) Criminal Code (1-2) TIME SERVED (107 DAYS) & PROBATION 2 YRS LESS 1 DAY ON EACH CHG CONC & MANDATORY PROHIBITION ORDER SEC 51(1) Youth Criminal Justice Act (3-4) TIME SERVED (93) DAYS) & PROBATION 2 YERS LESS 1 DAY ON EACH CHG CONC & CONC

2012-08-20 TORONTO ONT YOUTH JUSTICE COURT (1) ROBBERY SEC 344 Criminal Code (2) 2 CHGS) (2) POSS OF FIREARM OR AMMUNITION CONTRARY TO PROHIBITION ORDER SEC 117.01 Criminal Code (3) THEFT UNDER $5000 SEC 334 Criminal Code (4) FAIL TO COMPLY WITH DISPOSITION SE 137 Youth Criminal Justice Act (3) CHGS) (1-4) 1 DAY & (11 MOS PRE-SENTENCE CUSTODY) & PROBATION 2 YRS & MANDATORY PROHIBITION ORDER SEC 51(1) Youth Criminal Justice Act

2013-01-08 TORONTO ONT YOUTH JUSTICE COURT (1) ROBBERY SEC 344 Criminal Code (2) POSS OF A WEAPON (3) FAIL TO COMPLY WITH DISPOSITION SEC 137 Youth Criminal Justice Act (1-3) 6 MOS DEFERRED CUSTODY & SUPERVISION ORDER & (130) DAYS PRE-SENTENCE CUSTODY) & MANDATORY PROHIBITION ORDER SEC 51(1) Youth Criminal Justice Act

2013-07-31 TORONTO ON CARRYING CONCEALED WEAPON SEC 90(1) Criminal Code 146 DAYS & PROBATION 2 YRS (CREDIT FO THE EQUIVALENT OF 36 DAYS PRE-SENTENCE CUSTODY) & DISCRETIONARY WEAPONS PROHIBITION SEC 110 Criminal Code FOR 10 YRS

2015-06-04 TORONTO ON THEFT UNDER $5000 SEC 334(B) Criminal Code 15 MOS & PROBATION 2 YRS (CREDIT FOR THE EQUIVALENT OF 9 MOS PRE-SENTENCE CUSTODY)

2016-05-27 TORONTO ON (1) THEFT UNDER $5000 SEC 334 (B) Criminal Code (2) FAIL TO COMPLY WITH PROBATION ORDER SEC 733.1(1) Criminal Code (1) SUSPENDED SENTENCE & PROBATION 12 MONTHS (CREDIT FOR THE EQUIVALENT OF 3 DAYS PRE-SENTENCE CUSTODY) (2) SUSPENDED SENTENCE & PROBATION 12 MOS

2017-07-05 TORONTO ON FAIL TO COMPLY WITH PROBATION SEC 733.1 (1) Criminal Code SUSPENDED SENTENCE & PROBATION 2 YRS

2017-0705 TORONTO ON (1) FAIL TO ATTEND COURT SEC145 (2) (B) Criminal Code (2) FAIL TO COMPLY WITH PROBATION ORDER SEC 733.1 (1) Criminal Code (3) FAIL TO COMPLY WITH PROBATION ORDER SEC 733.1 (1) Criminal Code (1-3) SUSPENDED SENTENCE & PROBATION 2 YERS (CREDIT FOR THE EQUIVALENT OF 195 DAYS OF PRE-SENTENCE CUSTODY)

76T.B. testified that one day in 2013, just before his birthday, (which is on November 1st), he was released from a youth facility and showed up, unannounced, at S.B.’s door.

77To his surprise both his brother, N.B., and his best friend, N.A., were at her apartment. He learned then, for the first time, from his twin, that N.A. was sleeping with his sister S.B. This angered T.B. because of the age difference between N.A. and S.B., as N.A. and T.B. were of an age. ⁸ Later in his testimony T.B. contradicted himself by stating that he had heard about N.A.’s relationship with his sister while he was incarcerated prior to showing up at S.B.’s door on that occasion.

78As a result of feeling aggrieved by N.A.’s relationship with S.B., T.B. stole a necklace belonging to N.A. that was very valuable. T.B. testified that after stealing that necklace he pawned it and obtained $3,000 for it.

T.B.’s Cross-Examination

79Mr. Mullins attempted to have T.B. confirm that D.B. was 12 years younger than him. T.B. resisted agreeing to that obvious point by saying that he was not 100% sure of D.B.’s birthday. Yet, in an answer that he made to Mr. White he said, “… “I never seen D.B. for so long and I was just about to, like she was older right and I was just about, and I believe her birthday was coming up, so I messaged her on Instagram …” ⁹

80Mr. Mullins had T.B. confirm the chronology that he gave during his direct examination which included that he returned to his mother’s custody in the summer of 2008, as he was getting ready to return to school.

81T.B. also testified in cross-examination that the family moved into the Palisades at Jane and Finch in 2009. When Mr. Mullins pointed out that this piece of testimony about the family’s move to a larger apartment occurred much later than merely the two weeks that T.B. spoke of during his direct examination T.B. said:

“… No, two weeks, it might, no. I don’t … maybe I said that, I probably did say two weeks. I don’t think I said two weeks. If I did maybe it was kind of longer, maybe I just don’t remember, maybe it was, maybe I just don’t know, maybe I said before. It wasn’t a long time.”

82Given that testimony the Crown suggested to T.B. that he was not really clear on his chronology. T.B. insisted he was clear on the chronology but not the timing (sic).

83T.B. confirmed that his mother was being supported by social assistance. Consequently Mr. Mullins suggested that she would not have had the means to provide him and brother with $50, each, every weekend to clean Stay’s apartment as he had testified to. In response T.B. insisted that that is what occurred except when his mother didn’t have the money and then she would owe it to them and pay them when she had it.

84Similarly, the Crown challenged T.B. on his evidence that he lived with S.B. for three months after being ejected from his mother’s home in January of 2010, (and T.B. insisted it was in January of 2010). T.B. testified that he was certain that he finished a semester of high school while living with S.B. and that a semester was three months long. He was not prepared to agree that his recollection was incorrect. He insisted that he was certain he didn’t merely spend a few weeks in her home: viz. ; “I’m certain it wasn’t just a few weeks.” ¹⁰

85Contrary to what he testified to in-chief, in cross-examination T.B. said that after being kicked out of his mother’s home S.B. was his only option.

86During Mr. Mullins’ cross-examination T.B. contradicted evidence that he gave during his direct examination. Aside from contradictions about the length of his second stint in living with S.B., he contradicted himself about when that occurred. In direct examination he placed that second stint as having occurred in 2011 to 2012. In cross-examination he stated that it occurred in 2013 and then backtracked and said that second stint might have happened in 2012 or 2013.

The Submissions of the Defence

87The court ought to acquit on all counts because the Crown’s case fails both on the assessment of the reliability and of the credibility of its two witnesses on the third prong of R. v. W.(D.), irrespective of any consideration of T.B.’s evidence.

88Nonetheless, an acquittal should also follow on the first prong of the R. v. W.(D.) analysis. On any assay his evidence it cannot be rejected. ¹¹ It must engender reasonable doubt about his guilt when his evidence is considered together with the other evidence adduced.

89Mr. White rhetorically asked, “What do we know?” His answers were that:

• We know that T.B. has expressly and fully denied any sexual contact with D.B..
• That is an extremely important because this is not a case where T.B. relied on his right to be silent. He has spoken to the court. He has sworn that these events never took place.
• Further, he was cross-examined with respect to his denials and, the defence submits, that there has been no disturbance of his denials; cross-examination has in no way created any doubt in his denials.

90Mr. White submitted that that ought to end the matter; however, for the purpose of completeness Mr. White turned to the evidence of D.B. and her mother.

91Before doing so, counsel acknowledged that while the allegations are abhorrent that abhorrence cuts two ways: if there is guilt it must be sanctioned, but T.B. must not be subjected to an erroneous imprimatur of guilt.

92Mr. White submitted that the allegations are very old and are alleged to have arisen at a time when D.B. was very young. In these circumstances while the defence does not posit any significant credibility deficits with D.B.’s evidence, Mr. White contends her evidence is unreliable given the combination of those two features; viz. : her very young age and the age of the allegations.

93In short, the defence does not submit that D.B. is lying. Rather, the defence accepts that she probably does believe that she is narrating real memories.

94However, the defence contends that given the age of this complaint, given the age of the complainant when she says these events occurred and given the lack of detail and uncertainties that surround D.B.’s evidence, her evidence is too unreliable to sustain the weight of proof to the exclusion of any reasonable doubt.

95In short any review of the Crown’s evidence will demonstrate that the Crown has not proved the what or when or even the who of what happened. To repeat, the evidence is too weak a basis to support convictions on such serious charges. It would be dangerous to convict on this paucity of evidence, since it does not disclose when the events are said to have happened – not the year, or the day or the month or even the season.

96The defence submits that in a general way D.B. alleges an act of fellatio but beyond that averment there is really not much else to her evidence.

97The age of the complaint is one potential reason for that lack of detail and the age of the complainant on the occasion of the allegations is another. Those factors make her purported memory insufficient to bear the weight of proof beyond a reasonable doubt.

The Submissions of the Crown

98S. 16 of the Youth Criminal Justice Act provides:

16. When a person is alleged to have committed an offence during a period that includes the date on which the person attains the age of eighteen years, the youth justice court has jurisdiction in respect of the offence and shall, after putting the person to their election under section 67 (adult sentence) if applicable, and on finding the person guilty of the offence,

(a) if it has been proven that the offence was committed before the person attained the age of eighteen years, impose a sentence under this Act;

(b) if it has been proven that the offence was committed after the person attained the age of eighteen years, impose any sentence that could be imposed under the Criminal Code or any other Act of Parliament on an adult who has been convicted of the same offence; and

(c) if it has not been proven that the offence was committed after the person attained the age of eighteen years, impose a sentence under this Act.

99The Crown’s submission is that it cannot and did not intend to prove that the allegations occurred after T.B. turned 18. The Crown submitted that the offences occurred when D.B. was five or six years old, as that was both her evidence and the evidence of her mother. Hence, T.B. ought to be sentenced as a young person if he is found guilty of the offences charged.

100The issue to be decided is whether the Crown has displaced the presumption of innocence and proved to the exclusion of any reasonable doubt that T.B. is guilty as charged.

101D.B. was a credible and reliable witness and that her evidence, alone, is a sufficient basis to find beyond a reasonable doubt that T.B. committed these offences.

102Given D.B.’s age at the time of these events and given the passage of time since they occurred, the amount of detail that she has provided makes her evidence compelling.

103Those details include:

• where the assault happened: at her home on Rexwood Avenue;
• where in her home it happened: in her bedroom;
• who committed the assault: her uncle, T.B.;
• how he was able to do so: he was left to babysit her and her brother;
• why he was left in charge of them: her mother went grocery shopping;
• where her brother was: locked out of her bedroom by their uncle;
• how the assault happened: her uncle isolated her in her bedroom;
• why she complied: because he was a grown up and had promised her candy;
• how he maintained her silence: by telling her not to tell anyone;
• what he did to her: he dropped his pants to his ankles and put his penis in her mouth;
• how they were positioned when he did this: she was kneeling, and he was standing;
• how long the assault took: long enough for M.B. to ask them to come out;
• what instructions T.B. gave her: not to tell anyone and to brush her teeth and wash her face afterward.

104There were some further details offered as well:

• her uncle rubbed her vaginal area during the event;
• she believed he was recording on his cellphone as he put his penis in her mouth; and,
• he never did give her the candy that he had used as an inducement.

105The Crown concedes that the exact time is uncertain other than it happened while D.B. was five or six. It is probable that it was not winter since it was a sunny, hot day and D.B.’s mother walked to the grocery store. However, the exact timeframe and the exact clothing each was wearing are mere peripheral details of no moment, in these circumstances.

106In short, this was not a bald assertion. D.B.’s evidence was not undermined in cross-examination and the wealth of detail that she was able to provide lends reliability to her statement and makes her complaint compelling and credible.

107Beyond all of the foregoing, D.B.’s mother’s evidence supports D.B.’s description of the opportunity the mother’s grocery trip afforded the accused. ¹²

108The Crown submits this case is stronger than R. v. J.J.R.D., 2006 ONCA 40088, [2006] O.J. No. 4749 (C.A.), (leave to appeal to the Supreme Court of Canada dismissed without reasons at [2007] S.C.C.A. No. 69), because T.B.’s evidence was riddled with weaknesses. As in J.J.R.D., the Crown submitted that:

An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.

109In the Crown’s submission T.B.’s evidence should be rejected as incredible unless (i) it is corroborated by other evidence; (ii) is an admission against his own interest; or, (iii) is purely biographical in nature because:

• it was contradicted in material ways by the Crown’s witnesses;
• he was careless and confused in offering information that he later walked back as being inaccurate; and,
• his criminal record for dishonesty and his admission of theft from his “best friend” ought to preclude the court from crediting his testimony.

110The last area of submissions by Mr. Mullins was the inchoate implication of Mr. White that a reasonable doubt about T.B.’s guilt arises from the fact that he is an identical twin.

111In the Crown’s submission that proposition is a needless distraction on this evidence as there is no evidence at all of the accused’s twin ever being present without T.B. being present. The accused’s evidence was that his twin was there at their sister’s home for perhaps a week in 2010, if the court accepts that evidence. In addition, he testified that he went to the apartment once in 2013 and found his twin there along with his best friend, N.A. when D.B.’s mother was also present.

112But, the important fact is that both D.B. and her mother testified that T.B.’s twin never babysat D.B. and M.B. This is consistent with S.B.’s evidence that she had a strained relationship with T.B.’s twin brother, who went to a shelter and not to S.B.’s home when he was ejected from his mother’s house. Indeed, at the time of the trial, S.B. said that she had not spoken with him for about eight years.

113Finally, there was no evidence that D.B. would have or even could have confused the one for the other and S.B. could distinguish them in any event. ¹³

114In brief, the Crown submits that on this trial record it is fanciful to suggest that both mother and daughter were mistaken about who they were dealing with. That suggestion should not raise an reasonable doubt.

Mr. White’s Response

115Mr. White reiterated that in cross-examination D.B. said that her uncle simply told her not to tell her younger brother about what she alleged had just happened. She did not testify that it was a blanket admonition to not tell anybody, “which is what you might think would happened”. Moreover, she did not tell her mother and had no explanation for not doing so.

116As to the uncertainties or inconsistencies in T.B.’s evidence, Mr. White submitted that it’s very difficult to determine what the living arrangements were from both sides because it was a long time ago and no one had any reasons to remember.

117More importantly, the defence here is not a lack of opportunity. Nonetheless, the mother really had no reason to remember this alleged grocery run. Her purported current recollection does not add to the Crown’s proof.

118Finally, Mr. White took strong issue with the Crown’s characterization of his client’s evidence and asked that it be accepted. It was not, he submitted, careless despite his client’s failure to recollect the same way each time he turned his mind to a topic. This is easily understandable given that his life during those years was extremely erratic and somewhat chaotic.

119The court ought to accept the effect of that kind of life on his ability to remember consistently. Moreover, it would be stunning and incredible if everything he or any witness testified to was internally and completely consistent. Any failures of T.B.’s memory should be ascribed to the effect of that chaotic period of his life and not to mendacity.

120Finally, the twin issue is not a red herring. It’s one issue that ought to give the court pause to being absolutely certain (sic) that if this occurred that it was the act of the accused. Mr. White submitted the Crown’s proof fails on whether any such act occurred but nonetheless, that fact that T.B. has an identical twin brother is a relevant fact.

The Burden of Proof and the Presumption of Innocence

121T.B. is presumed innocent and must be found not guilty unless the Crown proves every necessary element of the crimes charged to the exclusion of any reasonable doubt.

122As Justice Cory noted at paragraph [27] of R. v. Lifchus, [1997] 3 S.C.R. 320, [1997] S.C.J. 77, “…it must be made clear … that the standard of proof beyond a reasonable doubt is vitally important since it is inextricably linked to that basic premise which is fundamental to all criminal trials: the presumption of innocence.”

123Subsequently, in R. v. Starr, [2000] 2 S.C.R. 144 at paragraph 242, Justice Iacobucci stressed the need to make it plain to the factfinder that the reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities.

R. v. W.(D.), [1991] 1 S.C.R. 742

124This has been a judge alone trial and hence I am not obliged to apply the principles and directions of R. v. W.(D.) in a particular order. Nonetheless, it is not an error to do so. At paragraph [28] of R. v. W.(D.), Justice Cory offered the following suggested instruction to the factfinder:

28 Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

125Following Justice Cory’s template, first, I do not believe T.B.’s denial of culpability. Second, I am not left in a state of reasonable doubt by his denial of culpability even when I consider that denial in the context of the evidence as a whole. In concluding that I am not left in a state of reasonable doubt about T.B.’s guilt, I have considered his evidence while taking the balance of the evidence, including the exhibits into account.

126When taking the balance of the evidence into account, I have not done so on a “credibility contest” basis. Rather, I have assessed T.B.’s testimony in light of the whole evidence, including the testimony of the complainant and her mother.

127In carrying out this comparative assessment I recognize that one possible outcome of my assessment is that I may be left with a reasonable doubt concerning the guilt of T.B. despite not accepting his evidence.

128Having engaged in such an assay, I reject the evidence of T.B.’s denials. I am not left with any reasonable doubt about his guilt based upon his evidence when the defence evidence and submissions are considered in light of the whole of the evidence.

129My reasons for rejecting T.B.’s evidence are manifold. Those reasons, not in ranked order, include the unreliability of his evidence. This lack of reliability was demonstrated on several occasions in his testimony.

130For example, he stated that he lived in a cramped apartment with his mother and siblings briefly in 2008 and “we ended up moving like two weeks later.” Subsequently, he testified that that the family moved from that apartment several months later. As noted earlier, when the Crown challenged him on these differences in his evidence T.B. said:

“No, two weeks, it might, no. I don’t … maybe I said that, I probably did say two weeks. I don’t think I said two weeks. If I did maybe it was kind of longer, maybe I just don’t remember, maybe it was, maybe I just don’t know, maybe I said before. It wasn’t a long time.”

131T.B. testified that their mother’s only source of income was social assistance, His evidence that his mother would pay him and his brother, N.B., $50.00, each, to clean S.B.’s apartment every weekend and that she would occasionally send and likewise pay their older brother, Shak.B., is improbable and, indeed, incredible.

132Further, in his direct examination T.B. testified that “when I got kicked out, I had like options where to go and one of my option s was S.B.’s house … and I ended up going to her house for about three months.” Contrary to what he testified to in-chief, in cross-examination T.B. said that after being kicked out of his mother’s home S.B. was his only option. (emphasis added)

133There were several chronological contradictions in T.B.’s evidence that were identified in earlier paragraphs of these reasons. In light of them Mr. Mullins suggested to T.B. that he was not really clear on his chronology. Despite these inconsistencies T.B. insisted that he was clear on the chronology but not the timing (sic). In my view, his evidence was unreliable.

134Another instance of self-contradictory testimony was his insistence that he learned of S.B.’s relationship with his best friend, N.A., for the very first time when he dropped into S.B.’s apartment after being released from detention in 2013. Subsequently, he testified that he learned of this relationship while he was still incarcerated. Likewise, T.B. testified that he was unsure of his niece’s birthday and then later in his evidence he suggested that he was aware of it.

135In short, T.B. was an inaccurate and unreliable historian.

136While demeanour during testimony is not a matter of major proportion it can bear, if only to a very limited extent, on a witness’ credibility. ¹⁴ In that regard, I noted that on a great many occasions T.B. would repeat the whole or much of the question that was being put to him before beginning to answer it. Obviously, one interpretation of that behaviour could be the desire to properly understand the question being put. Another interpretation could be the desire to stall and gain time before answering. I had the impression that it was this latter stalling technique that was being employed by him. Nonetheless, this is a matter of minor moment.

137To the contrary, the nature and extent of his prior youth and criminal record is of very great weight to my assessment of his credibility.

138T.B. has been convicted, inter alia, of seven counts of robbery, ten counts of failing to obey various court-issued orders and three counts of theft in addition to the seven counts of robbery. Additionally, he testified to stealing an expensive necklace belonging to N.A. and pawning it for $3,000.00.

139These convictions document a significant history of seriously dishonest behaviour and a history of failing to abide by clear and controlling standards of court-ordered behaviour. As Chief Justice Dickson said in R. v. Corbett, [1988] 1 S.C.R. 670, [1988] S.C.J. No. 40, the fact that a witness has been convicted of a crime is relevant to his trustworthiness as a witness and that lack of trustworthiness may be evinced by contempt for laws which he is legally and morally bound to obey.

140In R. v. Corbett, [1988] 1 S.C.R. 670, at paragraph 24 Chief Justice Dickson explained the relationship and effect that a prior criminal record could have when a fact finder considers the credibility of a witness.

“What a person is often determines whether he should be believed. When a defendant voluntarily testifies in a criminal case, he asks the jury to accept his word. No sufficient reason appears why the jury should not be informed what sort of person is asking them to take his word. In transactions of everyday life this is probably the first thing that they would wish to know. So it seems to us in a real sense that when a defendant goes onto a stand, ‘he takes his character with him....” Lack of trustworthiness may be evinced by his abiding and repeated contempt for laws which he is legally and morally bound to obey, as in the case at bar, though the violations are not concerned solely with crimes involving ‘dishonesty and false statement.”

141I reject T.B.’s evidence denying his culpability because of the reliability and credibility deficits that I have outlined. Additionally, based upon the third prong of R. v. W.(D.), as discussed below, I am not left in a state of reasonable doubt about his guilt.

The Evidence of S.B.

142S.B. testified that her younger brother, T.B., visited with her at her Rexwood Road apartment on various occasions and that he babysat D.B. once or twice. She had no reason to remember any details of the alleged visit that is at issue, as all seemed normal and well upon her return from her shopping trip.

143In my view, she lacked episodic memories of the day. For example, she was unable to recall how she got home from the grocery store or what it was that she bought on that grocery trip. None of this is surprising given that she had no reason to even attempt to remember the day in question until well over a decade after this seemingly innocuous visit occurred.

144I agree with Mr. White that S.B. initially testified that D.B. was four or five when this visit occurred. ¹⁵

145Mr. White challenged S.B. about her earlier testimony that D.B. may have been four or five, when she asked T.B. to watch her. S.B. attempted to say that she was referencing a time when her brother looked after D.B. at their mother’s home while their mother was also there. I do not accept that explanation. It was clear that S.B. testified that T.B. babysat her daughter once or twice and that her belief was that this happened when her daughter was four or five.

The Third Step of W.D.

146Having rejected T.B.’s evidence I must still ask myself whether, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt of the guilt of the T.B.

147Accordingly, the issues of the reliability and credibility of D.B.’s evidence must be assessed. In undertaking that assessment, I am obliged to take matters germane to the testimony of children into account. The Supreme Court of Canada has provided guidance and direction on how the evidence of children should be approached as well as aiding in the assessment of a child witness’ credibility.

148This is not the case of an adult testifying about events that they allege happened when they were a child. In this case D.B., who was born on April 22, 2006, testified as a 17-year-old teenager about an event that she alleged happened when she was five or six years old. Justice McLachlin noted at paragraph [26] of R. v. W. (R.), [1992] 2 S.C.R. 122, (cited and quoted from extensively, infra,) “…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.”

Delayed Disclosure

149In R. v. D.D., [2000] 2 S.C.R. 275 at paragraph [65] instructed:

65 A trial judge should recognize and so instruct a jury that there 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.

Inconsistencies

150Inconsistencies in a child's evidence may be of less importance in assessing credibility than in the case of a reasonable adult. As explained in R. v. B. (G.), [1990] 2 S.C.R. 30 at paragraph [48]:

48 … the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. … The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children. (emphasis added)

151In R. v. W. (R.), [1992] 2 S.C.R. 122 (2000), 74 C.C.C. (3d) 134 (S.C.C.) Justice McLachlin provided an extensive lesson on how to assess the evidence of children, in particular, and more generally, any witness’ evidence:

23 … I pause to consider the general question of how courts should approach the evidence of young children. The law affecting the evidence of children has undergone two major changes in recent years. The first is removal of the notion, found at common law and codified in legislation, that the evidence of children was inherently unreliable and therefore to be treated with special caution. Thus, for example, the requirement that a child's evidence be corroborated has been removed: … The repeal of provisions creating a legal requirement that children's evidence be corroborated does not prevent the judge or jury from treating a child's evidence with caution where such caution is merited in the circumstances of the case. But it does revoke the assumption formerly applied to all evidence of children, often unjustly, that children's evidence is always less reliable than the evidence of adults. So if a court proceeds to discount a child's evidence automatically, without regard to the circumstances of the particular case, it will have fallen into an error.

24 The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. Wilson J. recognized this in R. v. B. (G.), [1990] 2 S.C.R. 30, …

25 As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child. What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.

26 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.

The Requirement for Proof Beyond Any Reasonable Doubt

152As noted by Justice McLachlin, “protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child.” ¹⁶ Justice McLachlin went on to say:

25 … Factors which may have a decisive effect on the reliability of the evidence of an adult witness -- for example, material inconsistencies in details as to time and place -- may play a significantly lesser role in assessing the reliability of the evidence of a child witness. That is not to say that the child's evidence is subject to a less rigorous standard of assessment before it can be accepted in a criminal trial. Rather, it is to say that the assessment of the credibility and the reliability of any witness is to be tailored to the individual characteristics of the witness. Where the witness is a young child, age is one of those individual characteristics:

153Justice Watt said the same in R. v. K.S., 2017 ONCA 307 at paragraph [10]:

10 The trial judge also reminded herself that this common sense approach to the evidence of children does not mean that their evidence is not subject to the same standard of proof as the testimony of adult witnesses in criminal cases. A verdict of guilt requires a solid foundation whether its evidentiary support resides in the testimony of a child, of an adult, or of some combination of the two. That a child is the principal or sole support for the Crown's case does not lessen the standard of proof required to establish guilt.

154D.B. testified on January 2, 2024. She was three months shy of her 18th birthday.

Motive, Reliability and Credibility

155The evidence adduced does not disclose any motive for D.B. to make her allegations against T.B. Both her mother and the accused agree that T.B.’s relationship to D.B. was unmarred by any known conflict. This apparent absence of any animus between D.B. and T.B. is not a matter that can make any weight in favour of D.B.’s reliability or credibility. (See, inter alia, R. v. Clyde, 2024 ONCA 113)

156The absence of any known motive on the part of D.B. to fabricate this complaint, is of no moment and indeed irrelevant to any consideration of either her credibility or reliability as a witness. As recently put by a counsel involved in Clyde, “just because a complainant has no known reason to lie does not mean their memories are necessarily accurate.”

Corroboration

157Corroboration, “as commonly understood, refers to evidence from a source other than the witness whose evidence is challenged which is capable of confirming the veracity of the evidence of the challenged witness.” (R. v. Bo Zou, 2017 ONCA 90 at para. [40].)

158It has long been the law that no corroboration of a child’s evidence is required for a conviction for sexual offences. Hence, I need not instruct myself, as fact-finder, that it is unsafe to find the accused guilty in the absence of corroboration. Nonetheless, where corroborative evidence has been led and where it has been accepted by a fact-finder, a fact-finder may be more inclined believe a child's evidence in the light of such corroboration. Where there is evidence which is capable of corroborating or confirming a child’s evidence, it is up to the fact-finder to decide whether that evidence does, in fact, corroborate or confirm the child’s evidence.

159I note further that corroborative evidence need not be corroborative of a material particular of the offences charged. Rather, evidence is corroborative if the evidence of the complainant which implicates the accused is corroborated in a material particular by other independent testimony. (See paragraph [53] of R. v. G.B., [1990] S.C.R. 30. Additionally, see R. v. Neto, 2024 ONCA 107 at [37] and [38]) ¹⁷

Discussion and Judgment

160D.B.’s evidence was reviewed at paragraph [5] and paragraphs [9] through [28] inclusive.

161The issue before me is whether the presumption of innocence has been displaced and whether, based upon D.B.’s evidence, (which is corroborated in several material particulars by her mother’s evidence), I am satisfied the exclusion of any reasonable doubt about T.B.’s guilt.

162The fact that I have rejected T.B.’s denial does not confirm or make weight in favour or D.B.’s allegations. Equally, the fact that D.B. did not exaggerate is not a matter that makes weight on the issue of proof. Rather, that aspect of her evidence simply demonstrates the lack of a detractor from her credibility in that regard.

163The defence contends that given the time that has passed since D.B. was five or six and given the lack of detail that that passage of time had engendered and given the fact that T.B. is an identical twin, her evidence is simply too unreliable to support the weight of proof to the exclusion of any reasonable doubt.

164One aspect of T.B.’s evidence that was corroborated by S.B.’s that gave me pause was their evidence that “Dora the Explorer” was D.B.’s favourite television show. That may well be true although D.B. was never asked about her own recollections. It does appear to demonstrate that T.B. recalled an aspect of his niece’s life as a youngster. But, that piece of evidence does not cause me to entertain a reasonable doubt about his guilt.

165I acknowledge and accept that a reasonable doubt can arise from the inability of credible evidence to be strong enough to support proof to the exclusion of reasonable doubt. As Justice Cromwell stated in R. v. J.M.H., [2011] 3 S.C.R. 197, [2011] S.C.J. No. 45 at [39]:

39 ... the principle set out in Schuldt (and many other cases) is that a reasonable doubt does not need to be based on the evidence; it may arise from an absence of evidence or a simple failure of the evidence to persuade the trier of fact to the requisite level of beyond reasonable doubt. …

166Nonetheless, as noted in R. v. B. (G.), [1990] 2 S.C.R. 30 at paragraph [48]:

48 … While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. … ¹⁸

167The defence contends that D.B.’s evidence is too old, too sparce and too generic to sustain the weight of proof to the exclusion of any reasonable doubt. Mr. Mullins’ parsing of D.B.’s evidence effectively answers those defence contentions.

168I accept, believe and act on D.B.’s evidence and find T.B. guilty as charged.

Dated at Brampton this 24th day of May 2024.

J.S. Nadel, (OCJ)

Footnotes

Footnotes

1. 1Given their identical surnames I have elected to refer to these three witnesses by their given names.
2. 2These photographs are of no material value. They were taken on different occasions many years after the allegations and as T.B. acknowledged, his face was fatter than his twin brother’s face and people could distinguish between them.
3. 3T.B. was born on November 1, 1994 and would have turned 12 on November 1, 2006. D.B. was born on April 22, 2006. According to D.B., M.B. was ambulatory on the occasion of her allegations and M.B. was born on June 2, 2009.
4. 4As Mr. White pressed S.B. on this issue, she became snippy with counsel.
5. 5Y.B., Shan.B., R.B., Shak.B., N.B. and T.B.
6. 6T.B. provided a number of details of the time he spent at S.B.’s apartment. He said that he watched D.B. and later D.B. and M.B. while S.B. worked at Burger King. He would walk D.B. to a local private day-care provider for S.B. run by a South Asian woman named Fieza. Sometimes he also pick D.B. up from this day-care if S.B. was unavailable and had to work.
7. 7I am not a certified transcriptionist but the substance of these questions and answers is accurate.
8. 8According to T.B., N.A. eventually fathered S.B.’s youngest son, E. who was born in 2016.
9. 9That full exchange was: Q: So you’ve heard D.B.’s allegation that you forced her to take your penis in her mouth. What do you say to that? A: When I heard about that I was like crushed about that. Like because I really loved D.B. and like even though this accusation, like before this accusation even happened, like when I took [N.A.’s] stuff, I wanted, I never seen D.B. for so long and I was just about to, like she’s older right, and I was just about, and I believe her birthday was coming up, so I messaged her on Instagram and I’m like, “Hey niece how are you? Like I never talked to her for so long, and she was like, “Hey uncle T., how are you? My birthday is coming up and I asked her and I’m like, “Do you want anything for your birthday, like anything that you want?” and then she, I don’t remember what she told me but, if I had the Instagram messages, I don’t have them anymore, but I don’t remember what she told me and then literally like a week after and that’s when this situation came up.”
10. 10T.B.’s youth record shows that on April 13, 2010, after serving 77 days of pre-sentence custody he was sentenced to “time served” and probation for two years. 77 days prior to April 13, 2010 is January 27th.
11. 11In fairness, the allegations were about a decade old. Absent diaries or formal records from which dates can be secured, these timing errors were endemic to all three witnesses.
12. 12Additionally, to the extent that T.B.’s evidence can be accepted, he, too, demonstrates that he had ample opportunity to commit this offence, in the Crown’s submission. As I noted to Mr. Mullins during his submissions, the defence here is not any purported lack of opportunity. Nonetheless, the Crown submitted that the mother’s evidence about a time when she left her brother in charge of T.B. and M.B. is corroborative of D.B.’s evidence. Further, while the Crown accepts that the mother had no reason to remember this incident in general, once she learned of her daughter’s complaint having occurred during a bout of baby-sitting, her memory of that bout was refreshed.
13. 13T.B. testified that his face was “fatter” than his identical twin’s face and people could tell them apart even when they dressed alike, which was a fashion mode that stopped once he was ejected from his mother’s home. That ejection occurred before these allegations.
14. 14[143] The demeanour of an accused while testifying in a criminal trial can vary enormously due to any number of factors. Judges’ have repeatedly been warned against attempting to link credibility with a subjective judicial assessment of demeanour. (See, for example R. v. T.E., 2007 ONCA 891 at para. [4].) [144] That said, a court need not ignore the question of demeanour. As the Court of Appeal stated in R. v. Boyce, 2005 ONCA 36440, [2005] O.J. No. 4313 at para. [3]: “trial judges are not required to ignore demeanour in their assessment of a witness. They can use it in conjunction with their assessment of all the evidence and in the full context of the trial.” More recently, in R. v. Santhosh, 2016 ONCA 731 at para. [19] the Court of Appeal confirmed that “a trial judge may assess a witness’ demeanour, which, while relevant to the assessment of credibility, is not determinative of the witness’ credibility and must not be overemphasized.”
15. 15Mr. Mullins submitted the matter is of little significance since whether D.B. was four or five or whether she was five or six, she was about five on both versions.
16. 16R. v. W. (R.), [1992] 2 S.C.R. 122, [1992] S.C.J. No. 56 at [25]
17. 17[37] It is trite law that no corroboration is required to prove an allegation of sexual assault. … [38] The consideration of evidence capable of confirming or supporting aspects of a witness’s testimony is typically part of the assessment of credibility and reliability. Confirmatory evidence is “other circumstantial evidence that tends to support the Crown’s case, or to dispose of alternative hypotheses put forward by the defence”: R v. Primmer, 2021 ONCA 564, at para. 39, …
18. 18The law relating to the assessment of the evidence of children in cases of this nature was recently reviewed and confirmed by the Supreme Court of Canada in R. v. D.F., 2024 SCC 14. There, the majority of the court adopted the reasons of Hourigan J.A. in his dissent in R. v. D.F., 2023 ONCA 584, [2023] O.J. No. 3994 (CA).